Mainza, Munyumbwe (suing as Administrators of the estate of CREED MAINZA MALAWO) and Ors v Siwale and Anor (Appeal 160 of 2020) [2022] ZMCA 11 (9 February 2022)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 160/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN EMMA MAINZA, KELSON MAINZA MUNYUMBWE (suing as Administrators of the estate of CREED MAINZA MALAWO) RABSON MWALE ISAAC BANDA IDAH PHIRI AND MAGNESS GOWERA SIWALE KABWE MUNICIPAL COUNCIL 1st appellants 2nd APPELLANT 3rd APPELLANT 4th APPELLANT 1st RESPONDENT 2nd RESPONDENT CORAM: Makungu, Sichinga and Muzenga, JJA On: 20th October, 2021 and 9th February, 2022 For the Appellants : No appearance For the 1st Respondent : Mr. M. Musukwa with Mrs. C. Banda, both of Andrew and Company For the 2nd Respondent : No appearance JUDGMENT Makungu JA, delivered the Judgment of the Court. Cases referred to: 1. Kureba v Goma and Attorney General SCZ Judgment No.3 of 2. Kainga v Zambia Revenue Authority SCZ Appeal No. 194/2015 Legislation referred to: 1. The Lands Act, Chapter 184 of the Laws of Zambia 2. The Court of Appeal Act, No. 7 of 2016 3. The Lands and Deeds Registry Act Chapter 185 of the Law of Zambia 1 .0 INTRODUCTION 1 .0 This is an appeal against the judgment delivered by Limbani J. on 3rd April, 2020 in favour of the 1st respondent herein concerning a piece of land known as stand No 8985 Chowa Kabwe. 2 .0 BACKGROUND 2.1 Initially, the late Creed Mainza Malawo instituted cause No 2008/HB/14 against C. Mpundu and Kabwe Municipal Council claiming: damages for trespass; a declaration that the purported repossession of stand No 8985 Chowa, Kabwe was illegal and therefore null and void, an injunction, any other relief, and costs. -J 2- 2.2 Creed Mainza Malawo passed away during the course of the proceedings and was substituted by the administrators of his estate who are now collectively cited as 1st appellant. 2.3 The 2nd 3rd and 4th Appellants and the 1st respondent were joined to the proceedings later. 2.4 The gist of the 1st appellant’s case in the court below was that on 2nd March, 2007 the deceased applied to the 2nd respondent for allocation of stand number 8985 Chowa, which was subsequently offered to him to purchase by the Ministry of Lands on 13th October, 2007. 2.5 The deceased accepted the offer and proceeded to pay all the necessary charges. 2.6 On 8th January, 2008 the 2nd respondent purportedly repossessed the property on the ground that it was erroneously offered to the deceased as it was meant for a market to service Chowa Community. 2.7 However, the deceased proceeded to sell portions of the land to 2nd to 4th appellants. 2.8 The 2nd, 3rd and 4th appellants claimed for: possession of the portions of land bought from the late Mr. Malawo, damages for loss of use of the land, and costs. -J 3- 2.9 The respondents both denied the appellants claims. 2.10 The 1st respondent claimed in her defence that in 2003 the land in issue was offered to her by ZCCM Investment Holdings PLC to be used as a playground as it was next to her privately owned Stepping Stone School. 2.11 She averred that in 2007, the 2nd respondent advertised all the plots in Chowa including the said plot. She applied for it and attended interviews. The 2nd respondent decided to allocate the plots to all the applicants who had offer letters from ZCCM and had re-applied for the same plots to the 2nd respondent. 2.12 That, she later learnt that although the plot was earmarked for a market, it was offered to the deceased. She complained to the 2nd respondent who withdrew the offer made to the 1st appellant and offered the plot to her. 2.13 The 1st respondent claimed that the 1st appellant had no legal authority to continue selling the plots. 2.14 She counterclaimed for a declaration that she is the rightful owner of the property, an injunction to restrain the 1st appellant from selling subdivisions of the plot, damages for mental stress, interest and costs. -J 4- 2.15 The 2nd respondent merely claimed that according to the approved development plan, plot 8985 was meant for a modern market. 3 .0 DECISION OF THE COURT BELOW 3.1 After a trial, the learned trial Judge phrased the question for determination as follows; who was the owner of the property? 3.2 He found that the 1st appellant lost rights to plot 8985 when it was repossessed by the 2nd respondent. For this reason the 1st appellant was condemned for apportioning the land and selling it to the 2nd to 3rd appellants. 3.3 Ultimately the court declared the 1st respondent as the legitimate owner of the property. 3.4 The 1st respondent was also awarded damages for mental stress and anguish she suffered as a result of the 1st appellant’s actions. 4 .0 GROUNDS OF APPEAL 4.1 The appeal is based on five grounds couched as follows; (i) The learned trial Judge erred in law and fact by upholding the irregular repossession of the land namely Plot No. 8985 Chowa Township Kabwe -J 5- from the 1st appellant after full compliance with the conditions of the offer. (ii) The learned trial Judge erred in law and fact by not observing that the 2nd respondent did not contest the case against the 1st appellant whose evidence should have been accepted as undisputed. (iii) The learned trial Judge erred in law and fact by ignoring the evidence of the 2nd, 3rd and 4th appellants that they made all the necessary inquiries concerning plot No. 8985 which they bought portions of. (iv) The learned trial Judge erred in law by offering plot 8985 to the 1st respondent after the same had been offered to the 1st appellant through the 1st respondent’s letter of complaint instead of an application. (v) The learned trial Judge erred in law and fact by failing to observe that the 1st respondent did not -J 6- comply with the conditions that normally go with the offer of land. (vi) The learned trial Judge erred in law in awarding damages when the 2nd respondent did not contest the allegation of the 1st appellant. 5 .0 APPELLANTS’ ARGUMENTS 5.1 In brief, the appellants arguments contained in the heads of argument filed on 27th August, 2020 were as follows: 5.2 On ground one that, the lower court erred when it upheld the irregular repossession of land from the deceased when he had accepted and complied with the conditions of the offer made to him by the ministry of lands. 5.3 Counsel highlighted the fact that the conditions the deceased complied with included payment of annual rent, consideration fee, registration fee and preparation fee. 5.4 That the repossession did not comply with Section 13(1) and (2) of the Lands Act1, hence it was illegal and ought not to have been upheld. 5.5 In support of ground two; that the failure by the 2nd respondent to call any witness at trial, entailed that the -J 7- evidence of the 1st appellant went unchallenged so judgment should have been passed in the 1st appellant’s favour. 5.6 On the third ground of appeal, learned Counsel argued that the trial court misdirected itself when it ignored the evidence of the 2nd to 4th appellants whom he described as innocent purchasers for value without notice. 5.7 Pertaining to ground four, the submissions were that despite the 1st respondent coming into the picture, the interest of the 1st Appellant remained valid as there was full compliance with the conditions of the offer. 5.8 In support of ground five, the learned Counsel observed that there was no cogent evidence of how plot 5173A which was offered to the 1st Respondent was translated to plot 8985. There is further no evidence to show that the 1st Respondent paid the K600.00 referred to in the offer letter for plot 5173A Chowa Township from ZCCM Investment Holdings PLC dated 4th May, 2013. 5.9 The prayer was that the appeal be allowed with costs. -J 8- 6 .0 1st respondents arguments 6.1 In opposing the appeal, Mr. Musukwa, learned Counsel for the 1st Respondent relied on the arguments filed on 8th October, 2020. He argued that there was nothing irregular or illegal about the revocation of the offer to the 1st appellant by the 2nd respondent as the 2nd respondent is an agent of the Ministry of Lands. Reliance was placed on the case of Kureba v Goma and Attorney General1, where the Supreme Court held inter alia that even a Certificate of Title can be cancelled if it is proved that it was issued in error. 6.2 It was further submitted that Section 13(1) and (2) of the Lands Act relied on by the Appellant does not support their case in view of the fact that the section deals with a situation where a leasee breaches a term or condition of a covenant in the Act. It does not restrict the repossession of allocated land. 7 .0 ORAL SUBMISSIONS 7.1 During the hearing of the appeal Mr. Musukwa made brief oral submissions as follows; that the appellants did not prove their case to the required standard for them to be entitled to a judgment despite what can be said of the -J 9- respondent's case. The case of Wilson Masauso Zulu was relied on as authority for this proposition. 7.2 He further argued that there are clear instances when an appellate court can set aside findings of fact made by the lower court as guided in the case of Kainga v Zambia Revenue Authority2. The appellants in this case have not given reasons why the findings of fact should be reversed. 7.3 We were urged to dismiss the appeal. 8 .0 DECISION OF THE COURT 8.1 We have looked at the record of appeal and the arguments by counsel on both sides. 8.2 From the six grounds of appeal the issue as we see it is whether determination by the lower court that the 1st respondent is the legitimate owner of plot 8985 and that she is entitled to damages for mental distress from the 1st appellant was justified. 8.3 The grounds of appeal are related and therefore we shall deal with them together. 8.4 It is clear that the late Creed Mainza Malawo applied for the plot in issue in 2007 following an advertisement in the -J 10- national press by the 2nd respondent inviting applications. On 13th October, 2007 the Ministry of lands offered the plot to him in writing as the 2nd respondent had made a recommendation to the Commissioner of lands that he be offered the plot. 8.5 He therefore went ahead and accepted the offer by paying all the prescribed charges. 8.6 On 8th January, 2008, the 2nd respondent purportedly repossessed the plot stating that according to their development plan the plot was earmarked for the creation of a modern market and therefore the offer to the 1st appellant was erroneous. 8.7 In the same letter of repossession it was stated that under the circumstances the council was considering giving the deceased an alternative stand in the same area. 8.8 At page 22 of the judgment, the lower court found the repossession rightful. 8.9 It is imperative for us to examine the repossession; in view of section 13 (1) of the Lands Act which provides as follows; -J 11- “13 (1) Where a lease breaches a term or condition of a covenant in the Act the president shall give the lessee three (3) months9 notice of his intention to cause a certificate of re - entry to be entered in the register in respect of the land held by the lessee and requesting him to make a representation to him why a certificate of re - entry should not be entered in the register.99 8.10 We accept the respondent’s argument that this provision does not apply to the facts of this case as the reason stated in the letter of repossession was that the plot was erroneously offered and not that the 1st appellant had breached a term of the covenant in the Lands Act. 8.11 The 1st respondent’s counsel in his submissions referred us to Section 11 (1) of the Lands and Deeds Registry Act Cap 185 of the Laws of Zambia which provides as follows; “Where any person alleges that an error or omission has been made in a Register or that any entry or omission therein has been made or procured by fraud or mistake, the Registrar shall -J 12- if he considers such allegation satisfactorily proved, correct such error, omission or entry as aforesaid" 8.12 The 1st respondent’s contention is that the error was accordingly corrected following the complaint by the 1st respondent which was satisfactorily proved. 8.13 We reject this argument and hold that the issue of an error in the Register did not arise in the lower court and it should not be brought up at this stage of the proceedings. 8.14 We note that when the 1st respondent applied for the plot in March, 2007, the 2nd respondent only recommended to the commissioner of lands that she be offered the plot on 30th March, 2011 as shown at page 182 of the record. The same letter indicates that the decision to recommend her was reached by the full council at meeting held on 7th September, 2010. 8.15 We have perused through the record of appeal and have not found any letter of offer from the commissioner of lands to the 1st respondent or Stepping Stone Private School but the -J 13- recommendation letter from the 2nd respondent to the commissioner of lands dated 30th March, 2011. 8.16 We have observed that there were anomalies in this matter which the lower court did not address; firstly, the appellant was offered the plot by the commissioner of lands and he paid annual rent, consideration fees, registration fees development charges, survey and marking fees and received a demand notice for service charges on 25th October, 2007. On the other hand, the 1st respondent had not produced her offer letter from the commissioner of lands or any receipt for the necessary payments which she ought to have paid if an offer had been made to her and accepted. 8.17 Secondly, the reason given by the council for repossessing the plot from the 1st appellant was not genuine as no development plan to that effect was produced in evidence and the plot was later offered to the 1st respondent. 8.18 Further, the evidence on record shows that the 2nd to 4th appellants bought the pieces of land in March, 2010 and they did sufficient due diligence. -J 14- 8.19 The above factors indicate that the lower court misdirected itself when it dismissed all the appellants’ claims as the letter of repossession of the plot dated 8th January, 2008 was not made in good faith and it is hereby nullified. 8.20 It follows that the court below erred to find that the 1st appellant had no right to sell portions of that land to the 2nd to 4th appellants. The 1st appellant had an interest in the land albeit inchoate and, he sold the land legally to the 2nd to 4th appellants. 8.21 The 1st respondent’s claim that she was rightly recommended by the council to be offered the plot as it was earlier offered to her by ZCCM Investments Holdings PLC should not have been upheld by the lower court as ZCCM was clearly out of the picture when the council advertised the plot. The offer by ZCCM was ineffective. 8.22 For the foregoing reasons the fifth ground of appeal becomes otiose. 9 .0 CONCLUSION 9.1 In sum, the judgment appealed against cannot stand. We hold that Plot 8995, Chowa Kabwe rightfully belongs to the -J 15- estate of the late Creed Mainza Malawo. The 2nd to 4th appellants are bonafide purchasers for value of certain portions of the same, without notice of any competing interest. 9.2 Costs are awarded to the appellants, the same may be taxed if not agreed upon by the parties. C. K. MAKUNGU COURT OF APPEAL JUDGE D. L. Y. SIGHING A _ COURT OF APPEAl/JUDGE K. MUZENGA COURT OF APPEAL JUDGE -J 16-