Mafulande Stoneworks and Construction Ltd v Commissioner of Lands (Appeal 147 of 2017) [2018] ZMCA 395 (17 August 2018)

JI IN THE COURT OF APPEAL OF ZAMBIA APPEAL NUMBER 147/2017 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: MAFULANDE STONEWORKS LIMITED AND COMMISSIONER OF LANDS MUMBA TIPENYE ^RTOFAPpgj" tjONSf RUCTION! 11 AUG 2Gi8 CIVIL REGISTRY 2 LLANT 1ST RESPONDENT 2ND RESPONDENT GEOFREY NAMBAYO THOMPSON 3RD RESPONDENT CORAM: CHASHI, SIAVWAPA, NGULUBE, JJA On 24th April, 15th May and 17th August, 2018 For the Appellant: M. Mwanawasa, Messrs Levy Mwanawasa and Company For the 1st Respondent: E. Tembo, Attorney-General’s Chambers For the 2nd and 3rd Respondent G. Pindani, Messrs Chonta Musaila and Pindani Advocates JUDGMENT NGULUBE, JA delivered the Judgment of the court. Cases Referred: 1. Anti-Corruption Commission vs. Barnett Development Corporation Limited (2008) ZR 69 Vol. 1 (S. C) 2. Kitwe City Council vs. William Nguni (2005) ZR 57 (S. C) 3. Nkhata and Others vs. Attorney-General (1966) ZR 124 ' J2 4. Examinations Council of Zambia vs. Reliance Technology Limited (2014) 3 ZR 171 5. Willheim Ron Buchman vs. Attorney-General SCZ Judgment Number 14 of 1994 6. Sithole vs. State Lotteries Board (1975) ZR 140 Legislator referred to: 1. The Lands and Deeds Registry Act, Chapter 185 of Laws of Zambia. This is an appeal against a Judgment of the High Court dismissing the appellant’s action, in which a declaration that it is the lawful owner of the property known as Lot Number 22388/M, together with the land marked on title number 262432/M was sought. The appellant also applied for an order for possession of the said land and to evict the servants, agents and whoever from the land under title deed number 262432/M. The appellant further sought damages for trespass by the 2nd and 3rd respondents with interest and costs. In delivering its Judgment, the lower court dismissed the appellant’s claims for want of merit. The court granted the 3rd respondent an order of possession against the appellant as well as damages for trespass with simple interest and costs. Dissatisfied with the Judgment, the appellant lodged an appeal before this court and advanced the four grounds of appeal which are couched as follows- J3 1. The learned trial Judge erred in fact and law when she held that the 3rd respondent is the holder of the certificate of title for Lot 19063/M while the appellant does hold the certificate of title for Lot 22388/M. The appellant will argue that there were a lot of anomalies that should have been considered before making that declaration as the reasons given by the Plaintiff were not fully addressed by the court below. 2. The learned trial Judge erred in fact and law when she found that the appellant’s piece of land had not been surveyed to date, the reason for non survey being that the appellant had not taken heed of the directive from the Surveyor-General’s office and the provincial planning office. The appellant will argue that he conformed to all the legal requirements to have his land surveyed and that it was the Surveyor-General’s duty to assign a surveyor to do the survey. 3. The honourable Judge erred by not addressing the issue of the overlapping of the two pieces of land in question as that issue remained unresolved by the Commissioner of Lands J4 and proceeded to issue the certificate of title to the 3rd respondent. 4. The Judge erred in law and fact by stating that the Plaintiff never submitted the written submissions that were filed in court on 27th January, 2017. The appellant will argue that it was very important for the trial Judge to look at the written submissions that were filed by the appellant in court and that the omission by the trial Judge is injurious to the outcome of the Judgment delivered in this matter. On behalf of the parties, written heads of argument were filed with the court based on the four grounds. In ground one, the appellant’s counsel submitted that the Learned trial Judge should have considered the fact that there was a misdescription in the title of the 3rd respondent. Counsel submitted that, the appellant proved at the trial that, the letter of offer held by the 3rd respondent described the land as being in Lusaka District, which the 1st respondent admitted was an error. Counsel further submitted that, the 3rd respondent’s said letter of offer was for a 14 year period while the certificate of title was for 99 years. Counsel contended that, no evidence was produced before court to show how the change was done. J5 Counsel contended that, the 3rd respondent’s letter of offer had serious anomalies as it did not bear an official date stamp. It was argued that, the 2nd and 3rd respondent gave conflicting statements with the 3rd respondent stating that, when he purchased the land, he dealt with the 2nd respondent’s agent while the 2nd respondent stated that she sold the land to a Mr Chanda who took documents to her home for her to sign, which included the certificate of title. Counsel submitted that the learned trial Judge should have considered all the issues highlighted above. On ground two, it was submitted that, the appellant did not receive the letter written by the Senior Lands Surveyor informing him that Lot 22388/M was created on top of the already existing Lot 19063/M. Counsel submitted that, the appellant did his part by paying for the survey and that it was the responsibility of the Surveyor-General to provide an officer to conduct the survey. It was contended that, the Surveyor-General failed in his duty by not carrying out the survey. On ground four, Counsel submitted that the appellant’s submissions were filed on the 27th January, 2018. It was contended that the learned trial Judge did not look at these J6 submissions when they contained information that was very important to highlight the appellant’s case. Counsel submitted that the submissions should have been considered by the trial Judge. In response to the appellant’s submissions on ground one, Counsel for the 1st respondent submitted that, it is trite law that a certificate of title is conclusive evidence of ownership of land and referred to Section 33 of The Lands and Deeds Registry Act1, Counsel cited the case of Anti-Corruption Commission vs. Barnett Development Corporation Limited1 where the Supreme Court held that - “under Section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title...” Counsel submitted that, the honourable court below was on firm ground when it held that the owner of the certificate of title for Lot 19063/M is the 3rd respondent. On ground two, Counsel for the, 1st respondent submitted that the appellant’s piece of land has not been surveyed to date as the Surveyor-General guided that the boundaries of Lot 22388/M J7 need to be re-planned and re-numbered. Counsel submitted that pages 256 and 257 of the record of appeal confirm that, the owner of Lot/19603/M is the 3rd respondent. He prayed that ground two be dismissed for lack of merit. On ground three, Counsel submitted that, the law on written submissions is well settled and referred to the case of Kitwe City Council vs. William N ;uni2 where the Supreme Court held inter alia that - “the court is not bound to consider counsel’s submissions because submissions are only meant to assist the court in arriving at a Judgment. ” Counsel contended that, the court is not bound by the submissions filed by Counsel and that the Judgment is in no way affected by submissions. He prayed that, ground three be dismissed for lack of merit. The 1st respondent’s counsel prayed that the court dismisses the appeal for lack of merit with costs. The learned Counsel for the 2nd and 3rd respondents filed written submissions. In ground one, it was submitted that, this ground of appeal attacked findings of fact that were made by the trial court. J8 It was submitted that the lower court stated at pages J19-J21 that, it found as a fact that the 2nd Defendant was offered Lot/19063/M by the Ministry of Lands on 5th of June, 2009, as evidenced by the letter of offer. The court further found that, this was after a recommendation from Kafue District Council dated 13th September, 2006. The court also found that, Lot 19063/M was created in 2004 as per site plan dated 6th October, 2004. Counsel submitted that, ground one, which attacks the findings of fact by the lower court is misconceived, lacks merit and ought to be dismissed. Counsel cited the case of Nkhata and Others vs. Attorney- General3 on the instances in which a trial judge’s findings of fact can be reversed and further cited the case of Examinations Counsel of Zambia vs. Reliance Technology Limited4 where the Supreme Court guided on when appellate courts can interfere with findings of fact. Counsel submitted that, the appellant does not have a certificate of title and that the learned trial Judge gave reasons why she did not accept the appellant’s claims. He submitted that, the letter of offer that was issued to the 2nd respondent, bore an official date stamp and referred the court to pages 322 and 323 of the record J9 of appeal which clearly shows the official date stamp. Counsel further submitted that, Kafue District is in Lusaka Province and that the certificate of title issued to the 3rd respondent shows that the property is situated in the Lusaka Province. Counsel urged the court to ignore this argument as it is inconsequential. Counsel further urged the court to ignore the submission of negligence as it was not pleaded in the lower court and did not arise at trial. He referred to the case of Willheim Roman Buchman vs. Attorney-General5 where it was held that - “a matter that is not raised in the court below cannot be raised before a higher court as a ground of appeal. ” It was submitted that, the appellant failed to prove that the 3rd respondent obtained the certificate of title by fraudulent means. It was submitted that, the 2nd and 3rd respondents followed the right steps in the acquisition of the certificate of title for Lot/19063/M. It was submitted that the evidence of the 1st respondent’s witness, Paul Kachimba was that if title is issued on un surveyed land, it is accompanied by a 14 year lease or title and not 99 years. Counsel submitted that after Lot/ 19063/M was surveyed, J10 the 3rd respondent was issued with a 99 year lease. It was argued that there was no irregularity and Counsel urged the court to dismiss ground one for lack of merit. On ground two, it was submitted that, the appellant refused to adhere to the counsel of the Surveyor-General and the provincial planning office to have the boundaries of Lot/22388/M re-aligned so that it would not overlap on Lot/19063/M. Counsel submitted that the survey was not done because the appellant protested the directive from the Surveyor-General’s office. It was submitted that this ground of appeal lacked merit and further that it be dismissed. On ground three, counsel submitted that the court is not bound to consider Counsel’s submissions and that matters of law are for the court to decide. Counsel prayed that this ground of appeal fails and urged the court to dismiss this appeal in its entirety for lack of merit with costs. At the hearing of the appeal, Dr Mwanawasa on behalf of the appellant submitted that she would rely entirely on the heads of argument filed before this court. Mr Tembo, on behalf of the 1st respondent submitted that he would rely on the heads of Jll argument filed on behalf of the 1st respondent. Mr Pindani, on behalf of the 2nd and 3rd respondents submitted that he would also rely on the heads of argument filed on the 26th April, 2018. In reply, Dr Mwanawasa on behalf of the appellant submitted that the certificate of title is under contention. She submitted that, the title deeds appeared in another person’s name. Counsel further submitted that, the re-planning and re­ numbering of the land was not conclusive and that there is no evidence on record regarding how the 3rd respondent acquired the land in dispute. Counsel submitted that the processing of the said piece of land did not follow procedure. Counsel contended that the certificate of title being relied upon is questionable and she prayed that it be declared null and void. We have examined the Judgment appealed against and the record of appeal. We have also considered the submissions by Counsel as well as the authorities cited. In ground one, the appellant contends that, the learned trial Judge erred in fact and law when she held that the 3rd respondant is the holder of the certificate of title for ♦ J12 Lot/19063/M while the appellant does not hold any certificate of title for Lot/22388/M. The appellant argued that there were a lot of anomalies that should have been considered before making that declaration as the reasons for that given by the appellant were not addressed fully by the court below. In analysing ground one which attacks the findings of fact by the lower court, we note that an appellate court may not reverse findings of fact unless the Judge erred in accepting evidence or in assessing or evaluating the evidence and failed to take into account something which he should have considered. This is what the Supreme Court stated in the case of Nkhata and Others vs. Attorney-General. The record of appeal shows at page 369 that in cross- examination, the appellant submitted that he did not have a certificate of title for Lot/22388/M. He also stated that the said piece of land was allocated to him on 10th November, 2009 and that Lot/19603/M was created in 2004, years before Lot/22388/M was created. In the case of Anti-Corruption Commission vs. Barnett Development Corporation Limited, the court held that a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title and can only J13 be challenged for fraud or where it is shown that title was improperly obtained. As was held in the Sithole vs. State Lotteries Board6 case, no charge of fraud was pleaded herein. The court found as a fact that the appellant did not hold any certificate of title, a fact which PW1 admitted. The court then went on to find that a certificate of title once issued is conclusive proof of ownership of land and that this presumption can only be rebutted when it is proved to the required standard that the title was obtained fraudulently or by misdescription, or prior interest. A perusal of the record of appeal shows that the senior land surveyor, Jonathan Kaoma wrote a letter to the provincial planner, Lusaka province planning authority on the planning anomaly of property Lot/22388/M, which he stated partly overlapped with Lot/19063/M. It is therefore clear that Lot/22388/M which was created later than Lot/19063/M encroached on the said Lot/19063/M. The appellant further contends that the 3rd respondent’s letter of offer had a lease period of 14 years whereas the certificate of title is for a period of 99 years. The evidence of Paul Kachimba was to the effect that, if title is issued on un surveyed land, it is , J14 accompanied by a 14 year lease and not a 99 year lease. The witness stated that Lot/22388/M can only be put on title if it is re-aligned. He further stated that Lot/19603/M was subsequently surveyed by the office of the Surveyor-General hence the granting of a 99 year lease. We have analysed the evidence on record in ground one and find that the learned trial Judge’s findings of fact were not perverse and were supported by the evidence on record. The appellant does not have a certificate of title and his piece of land was not even surveyed. There is no evidence of fraud in how the said title was obtained. We do not find merit in ground one and it is accordingly dismissed. On ground two, the evidence on record is that the Surveyor- General wrote to the provincial planner advising that Lot/22388/M overlapped on Lot/19603/M and therefore the boundaries of Lot/22388/M needed to be re-aligned. The court found that the appellant’s land was not surveyed and overlapped on Lot/19603/M. The court further found that Lot/19603/M was properly surveyed and that there was no misdiscreption or fraud in the acquisition of the land, record. As such, we do not find merit in ground two and it is dismissed for lack of merit. J15 On ground three, whether the court erred in not considering the appellant’s written submissions that were filed on 27th of January, 2017, we are guided by the holding of the Supreme Court in the case of Kitwe City Council vs. William Nguni as earlier alluded to. We do not find any merit in this ground of appeal as the court is under no obligation to consider counsel’s submissions. We therefore dismiss ground three as it lacks merit. Having dismissed grounds one, two and three for lack of merit, the net result is that this appeal fails in its entirety. It is accordingly dismissed wit^^Ssts/to the 1st, 2nd and 3rd respondents which shall be taxed in default of agreement. " J. CHASHI COURT OF APPEAL JUDGE J. M. SIAVWAPA P. C. M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE