Mahmood Patel v Vankey Estate Company Limited (2020/HP/1335) [2024] ZMHC 133 (21 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN MAHMOOD PATEL AND 2020/HP/1335 PLAINTIFF 1ST DEFENDANT 2ND DEFENDANT VANKEY ESTATE COMPANY LIMITED 3RD DEFENDANT BUNO INVESTMENTS LIMITED JAMES SUWILANJI MWALE 4TH DEFENDANT 5™ DEFENDANT Before Mr. Justice G:C Mulenga, 10th November 2023 and 22nd March For the Plaintiff For the 1st Defendant For the 3 rd Defendant For the 4 th Defendant Mrs. For the 2 nd and 5 th Defendants Cases Cited Mr. Ticklay ofTicklay and Company Mr. K. Daka of Solly Patel, Hamir and Lawrence Ms. A. Chisanga and M. Katolo, Attorney General's Chambers Mr. L. Mayembe of Mayembe Legal Practitioners M. Kaluba of AMW Legal Practitioners Mr. J. Musuku of Messrs. Barnaby Chitundu and Khunga Advocates appearing with 1. Aaron Chungu v Peter Chanda and Nine Others [SCZ 08/02/2023] 2. JCM Limited vs Development Bank of Zambia [Supreme Court Judgment No. 22 of 2014} Works referred to Rl j 1. W Hudson and R. Unger, Equity Delights to Do Justice and Not by Halves, 33 DICK L REV 248 (1929) Volume 2020/HP/1335 Legislation referred to 1. The Constitution of Zambia (Amendment) Act No 2 of2016 2. The High Court Act Chapter 27 of the Laws of Zambia 3 . The Lands Act, Chapter 186 of the Laws of Zambia RULING ON POINT OF LAW REGARDING THE HIGH COURT'S JURISDICTION IN LAND MATTERS CONCERNING RE-ENTRY BY THE COMMISSIONER OF LANDS 1. 0 Introduction . 1.1 The plaintiff in this action claims a beneficial interest in a subdivision of Stand No 11790, (the "subject property") upon which the Commissioner of Lands issued a certificate of re-entry. After the re-entry, the defendants in the action claim to have acquired various interests in the subject property, or portions thereof. 1.2 This ruling relates to three points of law. The first was raised viva voce by motion, in the course of a status hearing. It was, in effect, a preliminary point of law by the Plaintiff seeking the court's pronouncement upon its jurisdiction. It was stated that the jurisdiction of this court had in the recent past been thrown into some doubt following a judgment of the Supreme Court which, like the present case, concerned a dispute arising out of a re-entry upon land by the Commissioner for Lands. R2 2020/HP/1335 1.3 The second is a consequential point which has inevitably arisen out of the issue raised by the Plaintiff. It relates to the manner of terminating these proceedings if I should find that I have no jurisdiction on the merits of the action. It concerns the question whether to dismiss the action altogether, or to refer it by way of transfer of the cause, in order that the action is preserved for prosecution before the Lands Tribunal. 1.4 The third is the joinder of an intending 6 th defendant, who would stand to be affected by any decision this court might make in this action. 2. 0 Background 2.1 The Plaintiff commenced this action in 2020 against various unknown persons who, in the course of these proceedings have emerged to stake some claim to an interest in, or about, the subject property as defendants. By the action, the Plaintiff sought to challenge the re-entry by the Commissioner of Lands of the Republic of Zambia on the subject property. The defendants filed their defences on different dates. 2.2 On 22 nd June 2023, the Supreme Court handed down a decision in the case of Aaron Chungu v Peter Chanda and Nine Others1 , in which it held that the High Court has 1 scz 08/02/2023 R3 2020/HP/1335 no jurisdiction in matters involving questions of re-entry by the Commissioner of Lands. That jurisdiction is reserved for and exercisable by, the Lands Tribunal pursuant to section 13 of the Lands Act. 2.3 It was following the delivery of that decision, that the Plaintiff proceeded, on 10th November 2023, to raise the issue concerning the jurisdiction of this court to deal with a case involving the re-entry by the State upon the Subject Property. 2.4 I did not accord the Defendants an opportunity to address me, considering that the court is bound by the decision of the Supreme Court. 2.5 I now proceed to address the issues raised in 2.1 and 2.3 above, each in turn. 3.0 The Law 3.1 So far only as is relevant to the issues before me, section 13 of the Lands Act provides, in part, as follows- "(l) Where a lessee breaches a term or a condition of a covenant under this Act the President ... may cause the certificate of re-entry to be entered in the register ... (3) A lessee aggrieved with the decision of the President to cause a certificate of re-entry to be entered in the R4 ..___ _ _ _ _ _ - - - - - 2020/HP/1335 register may within thirty days appeal to the Lands Tribunal for an order that the register be rectified.)) 3. 2 The issue of jurisdiction had not previously an sen 1n these proceedings as the High Court was believed in practice to have had jurisdiction to kindred matters. The issue arises only following the decision in the Aaron Chunqu v Peter Chanda and Nine Others case. Indeed, since that decision, which interprets section 13(3) of the Lands Act, it is said to have become incontrovertible that the High Court no longer has jurisdiction to hear and determine any disputes involving questions of re-entry by the Commissioner of Lands on properties. Those questions are the exclusive preserve of the Lands Tribunal. 3.3 It would appear to follow that the court having no jurisdiction, it cannot lie within its power to transfer the action to the competent authority, namely, the Lands Tribunal, which is what the Plaintiff seemed to have been inviting this court to do. I call to mind the case of JCM Limited vs Development Bank of Zambia2 in which the Supreme Court stated that "jurisdiction is everything" and that "without it, a court cannot take one more step". 3.4 Having regard to the considerations above, this court should decide either to dismiss the action, having found that it has no jurisdiction, or to transfer or refer the action to the Lands Tribunal. On one view, the latter approach could be seen as taking 2 Supreme Court Judgment No. 22 of 2014 RS ' - -- - - - - - - j 2020/HP/ 1335 one step too far, being an exercise of a jurisdiction which the court could be said to not possess at all. However, on another view, this could well be an exercise of the court's jurisdiction springing from its constitutive statute , the High Court Act. I proceed to deal with this issue in the succeeding paragraphs. 4.0 Analysis and Decision 4.1 It is convenient to quote at some length, the words of the Supreme Court in the operative part of the judgment in Aaron Chungu v Peter Chanda and Nine Others, where the court had the following to say- «All the cases referred to by Mr. Songolo are distinguishable primarily because they do not specifically deal with reentry. Even the Faramco case, upon which much reliance was placed dealt with the question of a declaration as the main relief sought. In the Faran1co case, the court referred to Union Gold Zambia Ltd v The Attorney General as the basis for the High Court's jurisdiction not being ousted by eh LT inlands matters. It should be noted that the Union Gold case involved a declaration and not a reentry under s 13(3) of the Lands Act, the explanation which followed with regard to the High Court's jurisdiction, did not cover section 13 (3) and the unlimitedjurisdiction of the High Court should be understood within the that context. ·The correct position is that while the High Court has unlimited iurisdiction in land matters its R6 2020/HP/1335 jurisdiction is limited as in this case, by section 13 (3) of the Lands Act." (emphasis mine). 4.2 It is pertinent to note fron1 the underlined words, that the Supreme Court did not say that the High Court has no jurisdiction in land matters, but that its jurisdiction in a particular species of land dispute was limited by section 13 (3) of the Lands Act. Crucially, the Supreme Court made no pronouncement on the equitable jurisdiction that the High Court otherwise possesses by the provisions of section 13 of the High Court Act. In my judgment, jurisdiction to hear and jurisdiction to refer, are two distinct matters. I would go further and say that 'limited jurisdiction), quite plainly, does not mean the same thing as 'no jurisdiction'. If anything, limited jurisdiction necessarily implies residual jurisdiction. 4.3 In essence, what the judgment has confirmed is a limitation - not an extinguishment - of the court's jurisdiction over land matters. Regarding the argument in JCM Limited vs DBZ that ''jurisdiction is everything'' and that "without it, a court cannot take one more step", I would not venture to quibble with this exposition of the law but would point out that it applies where there is no rnrisdiction at all. In this case, I find that the power of transfer or referral could still be exercised pursuant to the jurisdiction that this court retains, albeit residually, in land matters and which remains unaffected by the operation of section 13(3) of the Lands Act. The limit, as I see it, is on the court's jurisdiction to adjudicate on the merits of a section 13 matter. R7 2020/HP/1335 4 .4 Having examined the Supreme Court's decision in the Chungu case, three clear points emerge as follows: (i) The High Court has no jurisdiction in matters of re entry of lands by the Lands Commissioner, which ought to be challenged by way of appeal to the Lands Tribunal within a period of thirty days; (ii) The High Court's jurisdiction in land matters generally, is retained and as such has not been ousted section 13;and (iii) Section 13 (3) has limited the High Court's jurisdiction to inquire into and determine that species of case that involves· a challenge to the issuance by the Commissioner of Lands of a certificate of re-entry upon land. 4.5 The circumstances of this case are such that the Plaintiff falls squarely within section 13 of the Lands Act, the subject property having been the subject of a re-entry by the Commissioner for Lands. Instead of going before the Lands Tribunal, the Plaintiff sought sanctuary in this court. That approach was made in the understandable, but quite mistaken belief, that this court had jurisdiction to decide the matter. That practitioners in this country were, prior to the Chunqu decision, quite uncertain as to the proper forum of adjudicating disputes of the type now before this court, is borne out by the number of decided cases which the Supreme Court had to review in deciding the case. RS 2020/HP/1335 4.6 I find, in alignment with the Supreme Court's decision in the Chungu case, that I have no jurisdiction to decide the question of the propriety or otherwise of the re-entry by the Commissioner of Lands upon the Subject Property. In acknowledging this divestiture of jurisdiction, I have found that I do retain jurisdiction in equity to decide how I am to cede jurisdiction to the competent adjudicating authority, an issue I more specifically treat of in paragraphs 4.13 to 4.16 of this ruling. 4.7 Having found as I have done, that except as to the retention of some equitable jurisdiction, I have no jurisdiction in this case, my conscience has been troubled by one matter. That matter is the injustice that might be exacted upon the Plaintiff, who by his learned counsel has hearkened to the call of an officer of the court, by bringing to the court's attention an issue which, were he to have yielded to the less honourable instincts of practitioners, he could have chosen to suppress. I find that the Plaintiff by his conduct is meriting of equitable consideration, which I proceed to apply in determining the rest of this action. 4.8 The singular issue now outstanding for determination is whether this court has jurisdiction to refer or transfer this action to the Lands Tribunal, rather than dismiss it. Upon a very careful consideration of the Chungu case, I have find myself quite unable to read into it a prohibition against the High Court's ability to refer a matter, in a proper case, to the Lands Tribunal. As will become apparent in a later part of this ruling, the limitation does not, on R9 j 2020/HP/1335 equitable principles, extend to being a prohibition upon the court to refer a matter to an appropriate forum in a fitting case, of which I find the present to be one. 4.9 In finding in favour of the Plaintiff on this point, I have further kept two principles in mind. The first is the duty of fidelity owed by this court to the constitutional principles concerning the exercise of judicial authority. The second is the exercise of the equitable jurisdiction with which this court is clothed by the terms of section 13 of the High Court Act. I treat of these, each in turn, below. 4.10 Regarding the first of these principles, Articles 16 and 118(2)(e) of the Constitution are relevant. The Constitution of Zambia Act, 2016, enjoins this court to deliver justice without undue regard to procedural technicalities. Mindful of the limitations placed upon this court in favour of the Constitutional Court,3 this court appreciates that Article l 18(2)(e) is a call upon the superior courts to endeavour to do substantial justice between parties. In my considered view, if I were to proceed on the footing that outright dismissal of this cause on the basis of the Aaron Chungu case is justified, it would, on the court's part, be a mark of unfaithfulness to the constitutional principle that inhibits a court from paying undue regard to procedural technicalities. 4. 11 I say so because honouring the consideration that the court has no jurisdiction and proceeding to dismiss the action rather than 3 Article 128 of the Constitution of Zambia R 10 2020/HP/1335 referring it would leave many a litigant deprived of a remedy that such litigant would otherwise have had. It is not hard to conceive of a case in which the litigant would be robbed of a cause of action due, for example, to the operation of the statute oflimitations. This includes, the thirty-day limitation imposed by section 13 of the Lands Act. Accordingly, I consider that it would be an inequitable exercise of jurisdiction to dismiss, rather than refer or transfer, the action. 4. 12 As to Article 16, the court recognises that property inheres in an action at law. It follows that such property is no less deserving of protection under the Bill of Rights than any other type of property. The court, being minded as it is, to preserve and protect that proprietary right, would exercise its jurisdiction in favour of the Plaintiff, relying as much on the Constitutional protection of property rights as on the equitable jurisdiction that it possesses by virtue of section 13 of the High Court Act, to which I presently turn. 4.13 Concluding now with the second principle adverted to in paragraph 4.10, namely, the court's exercise of equitable jurisdiction, the starting point is to recall that section 13 of the High Court Act enjoins this court to administer law and equity concurrently. It is couched, so far as is presently relevant, in the following terms: "13. In every civil cause or matter which shall come in dependence in the Court, law and equity shall be administered concurrently, and the Court, in the Rll 2020/HP/1335 exercise of the jurisdiction vested in it, shall have the power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seemjust, all such remedies or reliefs whatsoever, interlocutory or final, to which any of the parties thereto may appear to be entitled in respect of any and every legal or equitable claim or defence properly brought forward by them respectively or which shall appear in such cause or matter, so that, as far as possible, all matters in controversy between the said parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.)) 4.14 This section clearly enables the court to apply equitable reliefs in any circumstances where the court is of opinion that the making of a particular decision would render the dispute inconclusive, or serve as a launchpad for multiple legal proceedings or otherwise exact some urtmerited iniquity on one party. It is telling, in the present case, that no party saw it fit before the Supreme Court pronounced itself as it did in Chungu case, to either transfer the cause or object to the jurisdiction of this court. All parties, it seems to me, were united in their contentment to have this court hear and determine the matter. Indeed, they were only spurred to action after the decision was passed. R 12 2020/HP/1335 4.15 In the circumstances, I consider that it would be inequitable to penalise one party only for the consequences of an omission of which all parties may reasonably take blame. In this, I call to mind the equitable maxim "equity delights in doing justice, not by halves'. This maxim, although not often quoted in the opinions of the courts, is nevertheless one of the most important of the maxims of equity4. The significance of the maxim lies in its last words. It means that it is the aim of equity to have all interested parties in court so as to render a complete decree, adjusting all rights and protecting the parties against multiplicitous litigation or proceedings. 4.16 The principle of the maxim embraces the well-established doctrine that when equity once acquires jurisdiction, it will retain it so as to afford complete relief. In this case, because equity is said to follow the law and in fidelity to section 13 of the Lands Act, this court will not retain jurisdiction, but rather yield and cede jurisdiction to the Lands Tribunal. Yet, before ceding jurisdiction, equity will intervene to prevent the injustice of one party only suffering the consequences of inaction. I have already found the parties to have been equally culpable - the plaintiff by his anomalous inv·ocation of this court's jurisdiction and the defendants by their prolonged tacit acquiescence thereto. I will so exercise my equitable jurisdiction that no one party is unduly penalised. 4 W . Hudson and R. Unger, Equity Delights to Do Justice and Not by Halves, 33 DICK L REV 248 (1929) Volume R13 2020/HP/1335 4.17 Regarding the joinder of the intending 6 th Defendant all parties present at the sitting of 22nd March 2024 were united in their non objection to the joinder of that party. I consider that it would be in the interests of justice that the intended 6 th Defendant, being a party that will necessarily be affected by any order to be made in this action, be joined to the proceedings as the 6 th Defendant. 5.0 Order 5.1 Having carefully considered the three issues before me, and for the reasons set out in the preceding paragraphs, I hereby: - 5.1.1 Accept as meritorious the Plaintiffs raising of a point of law as to the jurisdiction of this court, but to the extent only that section 13(3) of the Lands Act merely limits the court's jurisdiction to adjudicate upon, but does not extinguish the equitable jurisdiction that this court otherwise possesses under the High Court Act to make appropriate orders, including referral of re-entry law suits; 5.1.2 Find that jurisdiction to hear' and jurisdiction to refer' are two distinct powers, as the concept of 'limited jurisdiction', does not mean the same thing as that of 'no jurisdiction' and could, in appropriate cases of which the present is one, encompass an ability on the part of the court to refer an action to the correct forum. 5.1.3 Order the joinder of New Century Decorations Limited as the 6 th Defendant. R 14 2020/HP/1335 6.0 Conclusion 6.1 In summary, I hold that I have no jurisdiction, based on both the Chungu case and section 13(3) of the Lands Act, to deal substantively with a re-entry action. I would take no further step if the powers of this court begun and ended with section 13 of the Lands Act. They do not. What that leaves me with, is the jurisdiction conferred by the section 13 of the High Court Act, in administering equity, to make such orders and grant such reliefs as a party to an action before me, may appear entitled to. In exercising this jurisdiction, I adjudge that the Plaintiff is entitled to the relief of a transfer of cause and I accordip.gly take_ the equitable step of transferring the matter to the Lands Tribunal, and so order. 6.2 Leave to appeal is granted. Dated the day of GC MULENGA HIGH COURT JUDGE REPUBLIC OF ZAMBIA HIGH COURT OF ZAMBIA · 1 ~ ~~I JUN 202~ ]~ . '' ,l) lJLENGA. J _ ~- O. ~~X ,50067, LUSAKA . ---------1