Kamera and Others (Trustees for United Church of Zambia) v Lishomwa (HP 332 of 2015) [2015] ZMHC 154 (11 November 2015)

•• IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY AT LUSAKA (Civil jurisdiction) IN THE MATTER OF: ORDER 113 RULE 1 OF THE SUPREME COURT (1999 EDITION) BETWEEN: MARY KAMERA, RESTONE CHIPIMO CHIPETA APPLICANT SARAH KAULULE, JUSTICE LL YOD SIAME AND JUSTICE FREDERICK MWELA CHOMBA (Suing as Trustees for the United Church of Zambia) AND DR. LUFWENDO L1SHOMWA RESPONDENT BEFORE HON. MRS. JUSTICE P. C. M. NGULUBE ON 11TH DAY OF NOVEMBER 2015 FOR THE APPLICAI\TS : MR CHITUNDU - MESSRS BARNABY AND CHITUNDU ADVOCATES FOR THE RESPONCENT : MA::)R LISITA - MESSRS CENTRAL CHP. MBERS JUDGMENT Cases referred to: 1. Hughes v Metropolitan Railway CO, [1977J 2 A. C. 439 J1 •• 2. 3. 4. Central London Properties [1947] K. B. 130, Spiral Conidaris Appeal number 157 of 1999 (unreported) Ubnchinga Investment v Ticklay Michael :Mainstab and Semar Transport and Mechanical Ud, Appeal no.39/2012 Supreme Court Judgment nO.25 of 2014. 5. Liamond Choka v Ivor Chilufya (SCZ Judgment nO.8 of 2002) Leg/slat/oil referred to: 1. Rules of the Supreme Court of England (RSC) 1999 Edition By way of Originati:lg Summons purs-..lant to Order 113, Rule 1 of the Rules of the Supreme COUE of England, the Applicant co:nmenced this action on 5th June, 2015 claiming an Order of possession of plot 33 Clixby Estate from the Responde:1t. In the Affidavit in S'-lpport of the Origi:-.ating Summons, Rodgers Ng'ambi in his capacity as Administrative Secretary in the United Church of Zambia deposed that the Applicant was offered the re:naining extent of Farm no. 86a Clixby Estates Kasaka on or about 19th Ja:-.uary, 1995 by the Government of the Republic of Zambia. That upon sati:;fying all the terms of the said offer, the Applicant was issued with a Certificate of title number L255 of Farm number 86a as produced and marked "RN1". That on 20th March, 1990, the Appli-:ant leased a portion of the said property, being subdivision 33 Clixby Estate to one Evans :\1unyama who paid survey fees for the said land. Produced were letters marked "RN2" and "RN3". That it is J2 t against t~e Applicant's policy to sell land and therefore even the said Evans Munyama as lessee had no rights to sell or assign the land to a third party. The Deponent stated that unkn:Jwn and without knowledge, consent or authority of the Applicant or that of Evans Munyama, the Respondent moved on Subdivision 33 Clixby Estate using false documents alleging that the Applican:'s legal tenant authorised him to do so as per produced document marked "RN4". That the Applicant and Evans Munyama denied ever subleasing the subject property to the Respondent or anyone else and subsequently advised the Respondent to stor: any developments that were being carried out on the land as he was illegally occupying it. Produced and marked, "RN5" a copy of the letter advising the Respondent to cease works on the subject property. Further that the Applicant and the Respondent engaged in countless correspor:dence over the issue but the Respondent continued with the developments on the subject property. That efforts to reason with the Respondent proved futile despite not having any justification for being on the land. That the Respondent had been unreasonable by demanding compensation from the Applicant as a condition of vacating the subject property. That the Respondent has further proceeded with construction of a road through other people's farms leased to them by the Applicant thereby causing great damage to the said farms besides trespassing therein. That the Applicant is the registered proprietor of the subject property and the Respondent has no legal claim to the subject property. In the A:1idavit in Opposition to the Originating Summons, the Respondent deposed that he was invited by the Munyama famJy through Milton Munyama, the son :0 Evans Munyama, the lessee of subdivision 33 farm no 86a Clixby Estate, teotake over the subject pmperty. That he was to pay Evans Munyama the money spent on connecting electrical power to the plot. That upeon insistence, he was later introduced to the Church Synod Project Secretary Reverend B. S. Kazovu who informed h:m that the subject property had been abandoned since 200L and had been repossessed from Evans Munyama due to failure to pay lease fees. That he was show:1 a letter datee 26th August, 2005 written by a Georgina Payne, the Acting Projects Secretary informing ,he plot holders that there would be a meeting on 2nd September, 2005 and failure to attend by the plot holders who had not developed tl:eir plots woulj result in the plots being forfeited to the Church. That the plots would then be allocated to persons who could immediately develop them. Produced and marked, "LLl" copy of the said letter. That after several IT_eetingswith Reverend Kazovu in the presence of his agent Joses MW3.nsaand Milton MunyaIT_a,the Reverend told the Respondent to go ahead wit:, the development of the plot. That he was also given a go ahead by the Church Convenor in the presence of his a~nt Joses Mwansa, Milton J4 • Munyama and his agent Japhet Mbedza. That he was further advised that the paper work could be finalised later. The Respondent deposed that he thus concluded the agreement by commencing payments of the agreed KB, 000, 000 (KB, 000 rebased) to Evans Munyama through :Milton and also started clearing the subject property. That later on Milton handed over a power of attorney, letter of intent and a letter requesting to allocate the western portion of tJ-.e subject property to the Responder;t. That later, Bornface Mafwela, as new project secretary who had taken over from Reverend Kazovu informed the Respondent that he was aware of the Responden:'s interest in the subject property as briefed by his predecessor and that what was needed was formalisation of the documentation so that work on the plot C:luld go on unimpeded since the subject property had been abandoned for too long. That followi::1gthe ad-lice by Bornface Mafwela, the Respondent agreed to settle all outstanding arrea:-s in annual fees since 2004 which Evans Munyama had not paid. T~1.atthe Respondent also applied to the Church for the subject property in January, 2012 but he we:.snever invitee for interviews. Produced and marked "LL2"and "LL3"copies of the application form and the receipt for the application fees. The Respondent dep05ed that he later received a letter in February, 2012 from the Church General Secretary instructing him to cea5e all work on the subject J5 , property as the papers Milton Munyama transrLitted were allegedly forged. That when works on the subject property stopped, there were protestations from the ';vorkers tc various political offices as a result, the General Secretary informed the Respondent that work could resume. That at this stage, well over K250, 000,000 (K250, 000 rebased) had been expended on the subject property. That there were various correspondence on the issue between the Respondent and the Applicants representatives as exhibited in letters marked, "LL4" , "LL5" and "LL6". The RespoLdent stat~d that he occupied the subject property based on the assurances from Reverend Kuzova, Mr Kasanga and Mr Mufwela as well as the fact that the subject property had been abandoned fo::-a while by Mr Munyama who failed tc develop it. That following a meeting, the Trustees of the Applicant Church decided that the Respondent ';vas to vacate the subject property but due to the intervention of the political I~adership in the area, the Respondent was instructed to re-occupy the subject property and resumed developing the property including grading a road with the full permission of the owners of adjoining farms. That the Res::lOndent's alleged failure :0 move off th~ land was due to the misrepresentations and encouragement by the Applicarlt's lawful agents. That it would be inequitable to repossess the subject property because of massive J6 , investment and employment created. That rather the Applicants ought to formalise the transf::r of the lease to the Respondent. When the matter ca:ne up for hearing, Learned Counsel for the Applicant relied on the contents of :he Affidavit in Support of the Originating Summons and further added that it was trite law :hat any interest in land transferred to a party should be evidenced in writing. That the Respondent had failed to exhibit any documents to demonstrate that the title holder had given him interest in the land. Learned Counsel thus prayed that possession of the subject property be granted to t~e Applicant Church. In response, Learned :ounsel for the Respondent relied on the contents of the Affidavit in Opposition to the Originating Summons, Affidavit in Opposition to the Order of Injunction and the rulip.g dated 7th October, 2015. He further submitted that the Affidavit evidence indicated that the Applicant was aware of the Respondent's pres~nce on the su:.ject property and that the Applicant's agents led the Responcent into believing that the issue of the sublease would be normalisec:. Relying on tl....e cases of Hughes v Metropolitan Railway Co, (1977) 2 A. C. 439' and Central London Properties (1947) K. B. 1302, Learned Counsel submitted that the facts reveal an element of promissory estoppel in the sense that there was an equitable waiver which the applicant could not renege from as it had waived its rights to the subject property. ., , It was further submitted that by section 13 of the High Court Act, that the High Court administers both law and equity concurrently. That the principles of equity ha';e to be applied in this caEe. That since the Applicants suppressed the information that the Respondent had been co-opted into developing the land, it was contended that the Applicant came to Court with dirty hands. Learned Counsel further argued tl:at it would be unjust enrichment if the Respondent loses out on the subject property as the Applicant stands to gain at his expense. That there would be need for restitution if the Applicant is granted possession as decided in Spiral Conidaris Appeal number 157 of 1999 lunreported)3 and Ubuchinga Investment v Ticklay Michael Mainstab and Semar Transport and Mechanical Ltd, Appeal no.39/2012 Supreme Court Judgment nO.25 of2014.4 It was submitted tha: the most reasonable solution to the matter was to normalize the lease as restitution would be onerous on the Applicant. In reply, Learned Counsel for the Applicant relied .:m the contents of the Affidavit in Reply to the Affidavit in Opposition to the Order of Injunction. Counsel furth::r submi:ted that as per Respondent's Affidavit evidence, he purportedly acquired interest in the subject property in 2011 and that immediately the Applicant got to know of it, they consistently wrote to him to leave the land as per "RNS". That there was no proof of the allegation that the Applicant's agent led the Respondent to develop the subject proper:y. Learned Counsel further urged the J8 , I Court to invoke the parole evidence rule that written proof overrides oral assertions. It was sub:nitted that the fact that the Respondent attempted to apply for the subject property goes to confirm that he had no subsisting interest in the subject pro;Jerty and therefore, the lease cannot be formalized. Further that if there is to be compensation, the Respondent was to claim it from the thi:-d party who allegedly defrauded him. That in this jurisdiction, one cannot acquire land by adverse possession and that the Court should protect the Applican:'s rights as title holder. I have carefuJy considered the Affidavit evidence and the Submissions made by Counsel for the parties Order 113 of the Rules of the Supreme Court of England provides as follows; "where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by origina~ing summons in accordance with the provisions of this order." This provision is a summary procedure afforded to Land Owners as against squatters and it strictly applies to a narrow scope of matters. In the decided case of Liamand Chaka v Ivar Chilufya5 the Supreme Court held that; J9 II •• "The summary procedure under Order 113 can only be suitable for squatters and others without any genuine claim ,:f right or who have since transformed into squatters." The learned author5 of the White B:Jok have ampEfied on the app:icability of the order by stating that; "the coder would 10rmally apply onl)' in virtually uncontested causes or in clear cases where there is no issue or question to try; i.e. whet"e there is no reasonable doubt as to the claim of the Plaintiff 10 recover possession of land or as to the wrongful occupation of the land witho.t licence or conse1t and without any right, title or interest thereto." Therefore, it: the determination of this application, this Court has to satisfy itself beyond reasonable doubt as to tt:: Applicant's claim to recover possession of the stand :n issue as against the Respondent and that the Respondent is a squatter. While it is an undisputed fact that the Applicant i5 the title holde:- of the subject property, the Respondent alleges to be occ-.lpying it with the full knowledge of the agents of the Applicant. The veracity of such an assertion or the lack thereof can only be ascertained in a trial which this summary procedure doe5 not allow. JlO • In the ligU of the Respondent's allegations, I am of the view that this is not a proper case to be dealt with under Order 113 of the Rules of the Supreme Court. Based on ;:he foregcing, I decline to grant the relief sought and accordingly dismiss the action. Costs to the Respond~nt. Dated this 11th November, 2015 ....... E.~ P. C. M. NGULUBE HIGH COURT JUDGE Q <= 111