Lance Kaula v Edward Milambo and Ors (APPEAL No.186/2018) [2019] ZMCA 369 (12 November 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No.186/2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LANCE KAULA AND EDWARD MILAMBO DANIEL KACHIMA MARIA BILIKI LESSON BILIKI ~ 0,.. .•• ~\('~.-.... ~~/. v~f CF Af-:-."J\l .. ,.....,...-·~---....,_.,, \ "L NUV ,u1S ~ f'i 11,;viv civ1~r ~ --- PPELLANT 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT CORAM: Chashi, Mulongoti and Lengalenga, JJA On 25th September, 2019 and 12th November, 2019 For the appellant: In person For the 1st Respondent: N/A JUDGMENT Mulongoti, JA, delivered the Judgment of the Court Cases ref erred to: 1. Charles Kajimanga v Marmetus Chilanga SCZ -Appeal No. 50 of 2014 2. Mohamed v Attorney General ( 1982) ZR 49 3. Tresford Chali v Bwalya Emmanuel Ng'andu SCZ- Appeal No. 84 of 2014 4. Rosemary Phiri Madaza v Awadh Karen Coleen (2008) 1 ZR 12 5. Hygrotech Zambia Limited v Greenbelt Fertilizers Limited SCZ -Appeal No. 138 of 2015 6. Wilson Masauso Zulu v Avondale Housing Project Ltd ( 1982) ZR 172 Legislation referred to: 1. The Lands Act, Chapter 84 of the Laws of Zambia 2. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 1.0 Introduction 1.1 This appeal is against the Judgment of the High Court, delivered by Hon. Madam Justice B. Majula, (as her ladyship then was) dated 22 nd September, 201 7, in which she refused to grant the appellant's application for an order cancelling a certificate of title issued in the name of the 1st respondent. 2. 0 Background 2.1 The brief facts of this appeal as can be deduced from the evidence on record are that; the appellant and the respondents herein were in occupation of a piece of land in the Keembe area of the Monze District of the Southern Province. The appellant and respondents' pieces of land were adjoined and held under customary tenure. 2 .2 Sometime in 1987, the 1s t respondent applied to Chief Choongo, in whose chiefdom the land is situated, to have the land J2 converted to leasehold tenure. Accordingly, on 26th August, 1992, the 1s t respondent was issued with a certificate of title registered as Farm No. 6326 which is approximately 64 hectares in extent. 2.3 The appellant, thereafter, alleged that the respondents had encroached on his land, as a portion of it was encompassed in the 64 hectares covered by the certificate of title issued to the 1s t respondent. This prompted the action in the court below, with the appellant seeking: a) an order cancelling certificate of title No. 6326, Monze issued in the name of the 1 s t Defendant. b) A declaration that the plaintiff (now appellant) is entitled in common with other members of his family to the right of use and occupation of the land held under customary tenure in Keembe area of Monze in part or the whole of which was converted into Farm No. 6326, Monze. c) Any other reliefs and costs. 2.4 According to the accompanying statement of claim, the appellant averred that he and his fa mily members had been in occupation of the land in dispute since time immemorial under customary tenure , in Chief Choongo's area. However, the 1st respondent subsequently converted the said piece of land into J3 leasehold tenure without the consent of the Kaula family and a certificate of title was issued to that effect. 2.5 The appellant alleged that the title deed upon which the 1st respondent was relying was fraudulently obtained on the basis ' that that the documents which the respondent used to acquire the title were invalid. Further, that the 1st respondent's application for a certificate of title was not accompanied by the requisite documents such as the letter of recommendation from the chief, minutes of approval from the Monze District Council and that the said application was made without consulting the appellant and his family members. 2.6 The respondents denied the appeHant's claims and asserted that they were members of the Makala Village, under Chief Choongo in Southern Province. It was further averred that the land in dispute was inherited by the 1st respondent's father who settled on the land sometime in 19.33 after it was allocated to him by Chief Choongo. The 1st respondent, subsequently applied to have the customary land converted to leasehold and was issued with a certificate of title registered as Farm No. 6326, granting him a 14-year lease. J4 2. 7 The respondents alleged that it was the appellant's mother who encroached on the land .. 2.8 At trial only the appellant testified as the respondents neglected to attend trial despite adjournments to enable them do so. 3 .. 0 Consideration of the Evidence and Decision of the Court Below 3.1 Upon considering the evidence on record, the learned trial Judge determined that the issues to be resolved were whether the certificate of title was acquired fraudulently and/ or whether it included the appeHant's portion. 3.2 In considering whether or not the certificate of title was fraudulendy obtained, the trial Judge relied on the case of Chades Kajimanga v Marmetus ChUemya1 , where the Supreme Court he. Id: "that an aUegation of fr,aud must not only be c:learly and (distinct,ly ,alleged but it must also be prove,d by e ·vidence and that the standard is higher than a simpl.e ba,lance ,ofprobabilities." 3.3 The learned Judge considered the documents on record and in particular, the l st respondent's application letter for a certificate of title from the district executive secretary addressed to the provincial planning officer at Choma, requesting him to endorse j5 the application and forward it to the commissioner of 'lands for consideration. Secondly, a letter from the district executive secretary, forwarding minutes from the plans, works and development committee of the Council addressed to the commissioner of lands and thirdly, the certificate of title issued to the 1st respondent. 3. 4 Based on the above pieces of evidence, the lower court was of the view that the appellant did not adduce any evidence to clearly and distinctly prove the allegation of fraud .. The learned Judge opined that the documents on record outlined a chronological sequence of how the 1st respondent acquired the title. 3. 5 Based on the foregoing, the learned trial Judge found that the appellant had failed to substantiate the allegations of fraud to the requisite standard and relying on section 33 of The Lands and Deeds Registry Act2 , the trial Judge found that the certificate of title issued to the 1st respondent was conclusive evidence of ownership of the property. The Judge was of the view that the appellant had failed to prove his case and dismissed it for lack of merit. J6 4.0 The Appeal 4.1 Dissatisfied with the Judgment, the appellant has appealed to this Court and advanced four grounds of appeal which :read as follows: 1. The court erred in law and fact by curtai.ling trial proceedings which were still continuing on 15th September, 2017 for the appellant's witn.esses which included the traditional chi:ef to give their testimonies in support of the appell'ant bu.t the: trial Judge decided to deliver Judgment. 2. The Judge erred in law and fact by h.er failure to detect the missing documents which. are viewe:d as ca.rdinal to the conversion of traditional land to State land. There was no letter from the traditional chief addressed to the Monze Counct:l g ivi.ng h is consent to have the land converted to. leaseho·ld tenure. 3. The Judge erred in law and fact by• the fa.ilure to detect that there were no minutes from th.e Monze District Council approving the 1 st respo,ndent's application for a certificate of title .. 4. The Judge erred in law and fact by her failure to order the re-surveying of the land in dispute to determine the extent of encroachment, if any~ on the appellant's traditional land after dec·lining to move the court to the site in Monze. 5.0 The Arguments in Support 5.1 In support of the appeal, the appellant filed heads of argument. J7 5.2 In ground one, the appellant criticised the learned trial Judge for delivering her Judgment before he had the opportunity to call witnesses in support of his case. According to the appellant, after he gave his testimony on 6 th September 2017, the matter was adjourned to 15th September 2017, to enable him present his witnesses. However, trial did not take off on the said date as the trial Judge halted the proceedings without his knowledge and proceeded to deliver Judgment on 17th September, 2017 .· 5.3 It is the appellant's contention that the failure by the court to afford him an opportunity to call his witnesses amounted to an injustice and it appeared that the trial Judge was biased against him and preferred the respondent's evidence. 5.4 In support of grounds two and three, it was argued that the trial Judge fell into grave error when it failed to observe the fact that some vital documents were missing in the 1st respondent's application for a certificate of title. According to the appellant, there was no letter from the traditional chief to Monze District Council consenting to the conversion of customary land to leasehold tenure. He maintained that the process of conversion begins with the village headman who introduces the purchaser to the chief and thereafter, the chief gives his consent by writing J8 to the District Council. It is contended that this step was omitted in the 1st respondent's application. 5.5 Further, that there were no minutes from the District Council's meeting approving the 1st respondent"s app]ication to convert the property into leasehold. The appellant contended that the minutes appearing at page 76 of the record referred to Plot No. 96 situated within the Council perimeters and that the said plot was not approved but deferred to the next meeting. The appellant further argued that the Council's minutes approv]ng the property in question were not before the lower court, as such the certificate of title held by the 1st respondent was invalid. 5.6 In support of ground four, it was argued that the 1!:rial court erred when it failed to make an order for the resurveying of the land in issue in order to determine the extent of the encroachment on the appellant's land. According to the appellant, the order would not have the effect of cancelling the title but just some modifications on the extent of the land and the title deed. 6 .0 Issues on Appeal 6.1 We have considered the arguments and submissions. J9 6.2 The issues that fall for determination in this appeal are: a. Whether there was fraud on the part of the 1st respondent and/ or the Monze District Council in the manner the certificate of title was issued or obtained. b. Whether the 64 hectares covered by the certificate of title held by the 1st respondent encompassed the appellant's piece of land. 7.0 Consideration of Issues and Decision on . App,eal 7.1 Before we delve on the issues, we shall deal with ground one. Ground on e of the appeal is centered on what transpired on 6 th September, 2017 when the appellant gave evidence in the court below, which evidence is found at pages 139 - 140 of the record of appeal. It is the appellant's argument that after he gave his testimony, the matter was adjourned in order for him to call witnesses to support his case. However, at the next hearing date, he was informed that the trial proceedings had been halted by the trial Judge and that she would deliver her Judgment. 7.2 At page 140 of the record, in concluding his testimony, we note that the appellant had this to say: "My prayer is as indicated on my a.mende,d stat ement of claim. I rely on the documents I submi tted bef o r,e the court. The documents are before the cou.rt to _p rove that the tit le was fraudulently obtained . I 1ex hibited no them in affidavit in reply filed on 22nd December, 2008. Close." 7 .3 From a reading of the above extract of the appellant's evidence in the court below, there is no indication that the appellant intended to call other witnesses in support of his case. As a Court of record, we review only what is on the record. It is clear that the appellant intended to rely on the documents before the court and he eventually closed his case. The appellant, therefore, cannot afterward, be heard to mourn that he was not given an opportunity to call the witnesses he sought to support his case. It is clear that this is an afterthought as the appellant is discontented with the outcome of the Judgment and wishes to have a second bite at the cherry. 7.4 We do not agree with the appellant's argument that the trial Judge was partial in the manner she dealt with the case. The learned trial Judge endeavoured to resolve all the issues in controversy in a balanced manner. The appellant simply failed to prove his case and cannot be entitled to Judgment just because the respondents did not present their case at trial. See Mohamed v Attorney General2 . We perused the record of proceedings and we did not come across any instances of bias Jll against the appellant. We therefore find no merit in ground one and dismiss it. 7 .5 Grounds two and three are entwined. The appellant is attacking the learned trial Judge for failure to observe that in converting his land from customary tenure to leasehold tenure, the 1st respondent did not follow the procedural stipulations contained in The Lands Act 1 for converting customary land to leasehold tenure. The appellant argues that the 1st respondent acquired the certificate of title without the consent of the chief and the District Council. 7 .6 Section 8 of The Lands Act1 provides for the conversion of customary tenure into leasehold tenure. Such conversion shall have effect only after approval from the chief and the local authorities in whose area the land to be converted is situated. Further, Regulation 2 of The Land (Customary Tenure) (Conversion) Regulations, provides a detailed procedure for converting customary land to state land. 7. 7 It is therefore, important that the procedure as stipulated in the above provisions of the law, for converting land from customary tenure to leasehold tenure, are adhered to. The underlying Jl2 consideration of the law is that there must be consent of both the chief and local authority before the land can be converted. 7.8 In the present case, at page 72 of the record is a letter from the Headman Makala, dated 8 th October 1987, supporting the 1st respondent's intention to put the land on title. In the said letter, the headman stated that he had no objection to the 1st respondent to improve his/arm in anyway he would like it to be. The said letter was stamped by the chief and he appended his signature. However, it is the appellant's argument that there was no written consent from the chief to the District Council and on that account, the 1st respondent did not satisfy the provisions of the law. 7. 9 In the case of Tresford Chali v Bwalya Em.manuel Ng'andu3 , the Supreme Court had an opportunity to deal with a similar case regarding the approval of the chief and local authority. The Supreme Court elucidated as follows : "The respondent's document which is a proposed diagram for the small holding was stamped by both the chief and the local authority before title was issued, signifying approval by these i nstitutions. The argument by the appellant, h owever, is that he followed to the lette r, the procedures out lined in the Regulat ions by filling in the necessary forms and e nding by attending J13 interviews. In our view unless the consent of the traditional ruler and local authority can be impugned, the alienation of land held under cu.stomary law by the President cannot be faulted ... " 7 .10 In light of the holding in the above case, we are of the considered view that the stamp by the chief on the headman's letter signified approval by the chief to convert the traditional land to state land. In addition, at page 73 is a letter from the ward chairman addressed to the district executive secretary of the Monze District Council dated 10th October 198 7 supporting the 1st respondent's application to have the land converted to leasehold tenure. Based on the foregoing, there is no doubt that the 1st respondent had the necessary consent from the chief and the local authority. 7.11 However, the procedure does not end there, after approval from the chief and local authority, it is also a requirement that the District Council approves the application. At page 7 4 of the record, is a letter dated 25 th August 1988 from the 1st respondent to the district executive secretary, wherein he attached the letter from the village headman bearing the stamp of approval from the chief, the letter from the ward chairman J14 and a map for the farm in support of his application for a title deed. 7.12 Thereafter, on 20th December 1988, the plans, works and development committee of the Monze District Council at its meeting considered and interviewed applicants. A perusal of the minutes found at page 75 of the record, reveals that the 1st respondent was invited for interviews on the said date but he was not 1n attendance and as a result, his application was deferred to the next meeting. It is on this basis that the appellant argues that there was no consent from the District Council. 7. 13 However, a perusal of the evidence on record, at page 81 the document dated 2 nd March, 1989 reveals that officers from the Monze District Council carried out a physical inspection on the subject property and this was duly approved by the committees officials and the headman. There is further evidence at page 83 of the record, which is a letter from the district executive secretary to the provincial planning officer dated 11 th April 1989, wherein the provincial officer was requested to endorse on the respondent's application for certificate of title for onward transmission to the commissioner of lands. JlS 7.14 In addition, through its letter of 24 th September 1990 at page 86 of the record , the district executive secretary of the Monze District Council forwarded a copy of the minutes for the plans, works and development committee meeting held on 20 th December 1988, a copy of the Council minutes adopting the minutes of 20th December 1988 and a copy of the sub committee meetin g of the development committee held on 2 nd March 1989. According to the said letter, the documents attached, Mr. Milambo's (1 st respondent) application was approved. And by the said letter, the Counci] confirmed that there were no other settlers on the said piece of land .. 7.15 We are of the considered view that the above documents when examined holistically reveal that Monze District Council did approve the 1st respondent's appl:iication to convert his land to leasehold tenure and based on the said documents, a certificate of title was issued to the l st respondent. 7. 16 In the case of Rose·mary P'hiri Madaza v Awadh Karen Coleen4, the Supreme Court held as follows: "where fra.ud is an issue i.n. the proceedings, a party wishing to rely on it must ensure, that it is c:l.earl.y and dis:tinctly a .l'.l'eged and further that, at trial of the cause,, the party alleging fraud J16 must equally lead evidence, so that the allegation is clearly and distinctly proved." 7.17 The appellant failed to adduce any evidence before the trial court to clearly and distinctly prove his allegation of fraud on the part of the 1st respondent and/ or the District Council. We cannot fault the learned trial Judge for finding that the documents submitted by the appellant did not in any way assist his case but supported the 1st respondent's case. 7 .18 It is clear from section 33 that once a certificate of title is issued, it becomes conclusive evidence of the ownership of the land to which it relates. This implies that once a person is issued with a certificate of title, that title raises a presumption that the person followed the requisite procedures for obtaining title to land. This presumption is rebuttable and can be dislodged under the circumstances provided by section 33 itself. 7 .19 The necessary procedures for the conversion of customary land into state land and the acquisition of the certificate of title were duly complied with by the 1st respondent. Faced with such compelling evidence, this Court cannot interfere with the finding of the lower court. We agree with the trial Judge tha t the Jl7 allegations of fraud were unfounded. The two grounds of appeal lack merit and are dismissed . 7.20 With regards to ground four, the appellant criticizes the learned trial Judge's failure to order a re-surveying of the land in order to determine the extent of the encroachment. On a perusal of the evidence on record, the learned trial Judge cannot be faulted for her decision. Whilst the appellant claimed that the 1st respondent's title encompassed a portion of his land, he did not produce any evidence from the chief or the headman or any other person for that matter to demonstrate by how many hectares his land had been included in the title deed held by the 1st respondent or to show to what extent his land had been encroached. 7 . 21 It is a cardinal principle of the law of evidence that he who alleges must prove his case. This principle has been espoused in a myriad of cases such as Hygrotech Zambia Limited v Greenbelt Fertilizers Limited5 and Wilson Masauso Zulu v Avondale Housing Project Ltd6 . The burden, therefore was on the appellant to provide cogent and compelling evidence upon which the court could make an order for the resurveying of the land. Jl8 .. 7.22 In the absence of such evidence, the appellant did not prove his case against the 1s t respondent on a preponderance of probability. Ground four equally lacks merit. 7.23 In the net result, the appeal is devoid of merit. It is dismissed . We make no order a s to costs, part in the trial and or appe . J . CHASHI COU T OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE ~ F . M. LENGALENGA J19