Matthew Chulu v Grace Mpiya (APPEAL NO. 119/2017) [2018] ZMCA 624 (10 August 2018)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 119/2017 BETWEEN: MATHEW CHULU AND GRACE MPIYA ,., . r . ~.. \1-: ~0 ukt ~oi? · r .·~. - -= - -~ .. ·~ 1 0 AUG tlJlu · - -.. --· ..-.n: APPELLANT RESPONDENT Coram: Chisanga, JP, Chishimba and Sichinga, JJA On the 28th day of March, 2018 and l()th day of August, 2018 For the Appellant: For the Respondent: No Appearance Mr. F . Mudenda of Messrs Chonta, Musaila and Pindani Advocates JUDGMENT Sichinga, JA, delivered the Judgment of the Court Cases referred to: 1. Mazoka and Others v. Mwarfawasa and Others (2005) ZR 138 (SC) 2. Nkhata and Others v. Attorney-General (1966) ZR 124 3 . Examinations Council of Zambia v. Reliance Technology Ltd (2 014) 3 ZR 171 (SC) 4. Attorney-General v. Marcus Kampumba Achiume (1983) ZR 1 (SC) 5 . Zambia Revenue Authority v. Mwanza and Others (2010) 2 ZR 181 (SC) 6. Mwenya and Randee v. Kapinga (1998) ZR 17 (SC) 7. Namung 'andu v. Lusaka City Council (19 78) ZR 358 (SC) 8. Sithole v. State Lotteries Board (1975) ZR 106 (SC) 9. Y. B and F Transport Limited v. Supersonic Motors Limited (2000) ZR 22 (SC) 10. Kajimanga v. Chilemya SCZ Appeal No. 50 of 2014 (SC) 11. Emmanuel Mutale v. Zambia Consolidated Copper Mines Limited SCZ No. 12 of 1994 (SC) 12. Collet v. Van Zyl Brothers Limited (1966) ZR 65 (SC) 13. Musamba v. Simpemba Other Authorities 1. Lands and Deeds Registry Act Cap 185 Laws of Zambia 2. Lands Act Cap 184 Laws of Zambia 3. Rules of the Supreme Court 1999 Edition (White Book) This is an appeal against the High Court Judgment upholding the respondent's ownership of the piece of land known as stand number 34091 Libala South, Lusaka, as lawful. The brief background facts were that the respondent, by writ of summons dated 13th November, 2012, commenced proceedings in the High Court seeking an Order that she was the lawful owner of all that piece of land known as stand number 34091 / 4 Lusaka, an order of injunction restraining the defendants from encroaching, constructing and/ or interfering with her quiet possession of stand number 34091 / 4 Lusaka, and damages and costs. -J2- On 9 th December, 2004 the Commissioner of Lands offered stand number 34091 / 4 Lusaka to one Iress Phiri. The said Iress Phiri settled the attendant survey fees in 2005 upon which she was issued with a Certificate of Title No . 186890 showing that she was the lessee from 1s t December, 2004 for a term of 99 years . Sometime in 2007 the respondent and her husband bought the stand from Iress Phiri. Three years later, in 2010 they discovered some incomplete structure on the land . They were stationed in Senanga at the time. Upon their return to Lusaka in 2012 , the respondent formalized the assignment to her husband and herself by settling service charges to the council, settling ground rent to the Commissioner of Lands, obtaining consent to assign and subsequently being issued with Certificate of Title. The appellant and his co-defendants entered appearance and defence denying the respondent's claim, and stating that they occupied the land prior to the issuance of Certificate of Title to the respondent. That the Certificate of Title was issued in breach of the law as they were not consulted before such issuance , and this amounted to fraud . -J3- After considering the evidence and submissions by counsel, the court below found that Iress Phiri was first offered stand number 34091 Lusaka by the Ministry of Lands in December, 2004 and she obtained title on 16th October, 2007 with a lease effective 1st December, 2004. Thereafter the land was surveyed in June 2006. The court found that the consent to assign to the respondent was obtained in September 2012, then the respondent obtained permission to build and settled all attendant fees. The learned trial Judge held that the respondent was the lawful title holder. That the defendants had neither particularized the fraud they alleged nor proved it. The court also held the defendants to be squatters who had no rights to the land and the ref ore could not bind a bonafide purchaser for value. Dissatisfied by the judgment, the appellant has appealed to this court raising six (6) grounds as follows: 1. That the court below erred both in law and fact by holding that the appellant and the other defendants (in the court -J4- below) are squatters on the land herein disregarding documentary evidence of regularization by the Lusaka City Council. 2. The court below erred both in law and fact by holding that there was no need for the plaintiff to sign a new lease, disregarding the fact that the plaintiff was supposed to be a new lessee, and the fact that the Certificate of Title and lease are signed by the Registrar of Lands and Deeds, and the Commissioner of Lands respectively. 3. The court below erred both in law and fact by essentially holding that the respondent was a bonafide purchaser for value without notice despite the respondent's own admission of notice, and the court's finding that there were building activities when the respondent first visited the land herein. 4. The court below erred both in law and fact when it dismissed the allegation of fraud notwithstanding that the Certificate of Title was unusually secured, there is no lease between the President and the respondent, and that the respondent's documentary evidence does not correlate generally. -JS- 5. The court below erred both in law and fact by ordering vacant possession and demolishing of structures on stand no. 34091. 6. The court below erred both in law and fact by awarding costs to the respondent. Counsel for both parties filed in written heads of argument upon which they relied. In grounds one, four, and five, the appellant's counsel submits that the appellant testified that he and other settlers settled in the area sometime in 1995, and that this was supported by the respondent's testimony at page 143 when she said her husband visited the site in Libala South to confirm the area. It is submitted that the appellant's settlement in the area was regularized as per the evidence of minutes of a meeting held on 1st March, 2006 which was attended by senior public officials including the Minister of Lands, the Mayor of Lusaka, the Commissioner of Land and the Surveyor General. Counsel submitted that the meeting regularized the existing structure and the stay of people on the land before irregular letters like the one sent to Iress Phiri were issued. -J6- With respect to ground three, it is submitted that from the testimony of both the respondent and PW2, what was intended to be purchased was bare land, and not a developed lot with a structure on it. We are asked to note that in 2007 there was no Certificate of Title to the land, contract or any conveyancing documents that were prepared and signed. That the conveyancing documents were only prepared in September 2012 as confirmed by the state consent to assign at page 84 of the record and the consent to assign at page 85 of the record of appeal. It is submitted that PW2 testified to the effect that two (2) years prior to the said conveyancing documents, he noticed there were structures on the southern part of the land and a foundation was being built. PW2 then told the person he found that he had title. It is submitted that in September 2012 the respondent did not have title to the land. The appellant's counsel contends that the evidence of PW2 shows that as far back as 2010 , the appellant had built a structure on the land in issue before a Certificate of Title was issued to the respondent, who purportedly purchased the land. It is submitted that despite the court below taking into account the respondent's evidence that she had noticed one incomplete structure on the land -J7- in 2010 at page J 14 (page 25 of the record of appeal) it misdirected itself by essentially holding that the respondent was a bonafide purchaser for value without notice because the plot was not occupied despite there being building activities. Learned counsel submits that this was a senous misdirection because the respondent did not purchase from a registered proprietor as provided by sections 58 and 59 of the Lands and Deeds Act1 . It is argued that the appellant has lived on the disputed land since 1995, and this is the reason PW2 found him there on two occasions, building on the southern part of the land. It is submitted that on the basis of the admissions made by the respondent and PW2, the respondent cannot be said to have had no notice, and thus did not act in good faith. That in any event the doctrine of bonafide purchaser for value without notice was not pleaded, but was merely sneaked in through submissions. Counsel submitted that notice of building activities prior to issuance of the first certificate of title to the land if sufficient notice of claims by another person. -JS- According to learned counsel, the respondent failed to discharge her burden of proof. The case of Mazoka and others v. Mwanawasa and others1 was referred to. It was submitted that the court erred by further granting costs to the respondent. Counsel urged us to allow the appeal with costs. In response to the arguments made on behalf of the appellant, Mr. Mudenda, counsel for the respondent filed in detailed heads of argument on 20 th November, 2017 which he relied upon. On ground one, the learned counsel argued that the same attacks findings of fact made by the trial court. Counsel catalogued the lower court's observations at J14 , J15 and Jl 7 to the effect that the appellant admitted that he entered onto the plot illegally as a squatter. He directed us to the appellant's evidence in the court below at pages 164-168 of the record of appeal where the appellant admitted his illegal status as regards the land in dispute. It is submitted that in view of the clear evidence on record , ground one which attacks findings of fact made by the learned trial Judge is misconceived and unmeritorious, and ought to be dismissed. The -J9- case of Nkhata and Others v. Attorney-General2 and Examinations Council of Zambia v. Reliance Technology Limited3 were cited as authorities. It is submitted that the issue raised by the appellant that the court below disregarded documentary evidence of regularization by the Lusaka City Council has no merit because the trial court considered this at Jl2 and Jl3 (pages 23-24 of the record) , and stated why it did not accept the appellants claims of regularization. Under ground two of the appeal, Mr. Mudenda countered the argument advanced by the appellant's counsel that the Certificate of Title and lease are signed by the Registrar of Lands and Deeds , and the Commissioner of Lands respectively by referring to the lower court's judgment at JlS and Jl6 (pages 26 and 27 of the record of appeal) where the court observed and found as follows : "The second aspect raised by the 1s t def end ant is that the correct procedure was not fallowed to have the lease signed between the President and the plaintiff before the Certificate of Title was issued. This argument is misconceived because the -JlO- memorials on the plaintiff's certificate of title clearly state that the lease between the President and Iress Phiri from whom the plaintiff bought is attached to the plaintiff's Certificate of Title. And as stated above, the plaintiff's Certificate of Title with the said lease was exhibited in the affidavit in support of the injunction application. There was no need for a new lease to be signed by the plaintiff because when she purchased the subject stand, she became lessee for the unexpired residue of the term for Iress Phiri as stated in the lease dated 16th October, 2007. This is the normal procedure in the case of a sale that the lease between the President and the original lessee is attached to the new certificate of title and the appropriate endorsement made in the memorials. Thus, the correct procedure was followed in respect of the lease when the certificate of title was issued to the plaintiff " Mr. Mudenda relies on the cases of Attorney-General v. Achiume4, Nkhata and Others supra, Examinations Council of Zambia supra. Counsel submits that this ground is misconceived and lacks merit. -Jll- With regard to ground three learned counsel cites as authority Attorney General v. Achiume supra, Nkhata and Others supra, Examinations Council of Zambia supra, Zambia Revenue Authority v. Mwanza and Others5 , Mwenya and Randee v. Kapinga6 , Namungandu v. Lusaka City Council7, and section 9 of the Lands Act2 . Learned counsel submits that the court below was on firm ground in holding that the respondent was a bonafide purchaser when it stated at J7 (page 28 of the record) that the appellant acknowledged that he was a squatter and therefore could not acquire the land adversely to the detriment of the registered owner. It is submitted that in view of the evidence on record and the law relating to squatters, ground three is misconceived and lacks merit. On ground four , Mr. Mudenda submits that the court below was on firm ground when it dismissed the allegation of fraud because the appellant in his testimony at page 168 of the record stated that he neither had proof with regard to how the respondent was issued title nor evidence of fraud. That in view of this evidence the court below cannot be faulted in finding and holding that the issue of -J12- fraud was not proved to the required standard. The authorities of Sithole v. State Lotteri.es Board8 and Order 18/8/16 of the Rules of the Supreme Court3 were cited as authority that an allegation of fraud or misrepresentation must be proved to the required standard. It is submitted that this ground equally lacks merit. In regard to ground five, learned counsel submits that the court below was on firm ground in granting an order of possession of stand number 34091 Lusaka to the respondent as well as ordering the demolition of any structures erected by the appellant and his co-defendants on the basis of evidence on record that he was a squatter. In response to ground six regarding the awarding of costs to the respondent it is submitted that the court below was on firm ground to award the respondent costs since she was the successful party, and further that the appellant has not demonstrated to this court any conduct that would deem it necessary for the respondent to be deprived of costs. The case of Y. B and F Transport Ltd v. -J13- Supersonic Motors Ltd9 was cited as authority. We were thus urged to dismiss this appeal in its entirety for lack of merit. In his oral submissions, Mr. Mudenda gave an overview of what is contained in his written submissions which we need not repeat. We have carefully considered the submissions of counsel for the parties herein. The issue of whether or not the appellant was a squatter and whether the court below made a correct finding of fact has dominated this appeal. For this reason, we shall deal with grounds one, four and five together, as did the appellant's counsel. Ground two and six were not argued by the appellant and thus considered irrelevant. It is clear from the arguments that the appellant attacks the lower court's finding that he was a squatter, and the finding that the respondent's Certificate of Title was not obtained fraudulently. From our examination of the evidence on record it is abundantly clear to us that the finding that the appellant was a squatter was -Jl4- not made in a vacuum. At page 164 of the record, the appellant had this to say to the court below: "It is called Libala Water Works. My legal status was illegal and an organization came up by the residents and we went to the council and they gave us authority to demarcate the land." As we see it the appellant sought to derive legitimacy from the assertion that the area of Libala Water Works was regularized. However, regularization of an area does not override the interests of persons with lawful title. There is no allegation on record that Iress Phiri the person from whom the respondent derived title had obtained the land fraudulently. The appellant in his evidence in chief (page 166) stated that he only came to learn about the said Iress Phiri when he was served with a writ of summons in 2012. This testimony flies in the teeth of evidence he produced in court. At page 110 of the record is a letter dated 28 th October, 2005 in which the Lusaka City Council had called for a meeting to discuss the land disputes in Kamwala South. In the minutes of the said meeting at page 112 of the record, Iress Phiri is mentioned as -J15- someone that had received a letter of offer. There is in fact no document on record displaying the interest the appellant had, legal or equitable. Further, the appellant and his co-defendants in the court below settled a defence. They did not particularize any incidence of fraud nor lead evidence that the certificate of title issued to the respondent was obtained in a fraudulent manner. It is trite law that an allegation of fraud or dishonesty must be pleaded clearly and with particularity. This principle of law is well settled in this jurisdiction. In the case of Kajimanga v. Chilemya10 the Supreme Court held inter alia: "An allegation of fraud must not only be clearly and distinctly alleged but it must also be clearly and distinctly proved by evidence. The standard of proving an allegation of fraud is higher than the civil law standard." It is thus our firm view that the findings and conclusions made by the trial court are supported by the evidence. This illustrates to us -J16- that the learned trial Judge carefully considered the evidence before her, and having so found the court was perfectly in a position to order vacant possession against the appellant and his co defendants. From the view we have taken, grounds one, four and five must fail. In ground three, the bone of contention is the finding by the trial judge that the respondent was a bonafide purchaser for value without notice. The appellant seeks to assert that the respondent was not a bonafide purchaser for value of a legal estate because she had actual notice of the appellant and his co-defendant's physical presence on the land. However, the respondent in her evidence on record stated that Iress Phiri had title. That she investigated that title by conducting a search at the Lands Registry and confirmed that Iress Phiri was the registered owner. PW2, her husband also visited the land and found it to be bare. Thereafter the respondent paid for the land. This was the evidence the court below believed. The fact that the land belonged to Iress Phiri is supported by documentary evidence including a letter of offer to her. This in the face of an admission made by the appellant that he had no legal -J17- .. status to the land. The lower court cannot thus be faulted in her finding that the respondent was a bonafide purchaser for value. Ground three therefore lacks merit and it equally fails. With respect to ground SIX the appellant merely states that the court erred by granting costs to the respondent. It is trite that an award of costs will generally follow the result of the litigation. In other words a successful party is normally entitled to an order for costs against the unsuccessful party. The cases of YB and F Transport Ltd v. Supersonic Motors Limited supra and Emmanuel Mutale v. Zambia Consolidated Copper Mines Limited11 refer. Further it is settled that costs are awarded at the discretion of the court. The cases of Collet v. Van Zyl Brothers Limited12 , and Musamba v. Simpemba13 refer. In this case the appellant did not succeed in the court below, and the learned trial Judge cannot be faulted for awarding costs to the respondent who proved her case on a balance of probabilities. We find no merit in this ground. -J18- The net result is that the whole appeal is dismissed in its entirety with costs to the respondent to be taxed in default of agreement . ... .. . .... ... ·--~ ......... . F. M. CHISANGA JUDGE PRESIDENT ........ . . . . . . . . . ' . ........... . F. M. CHISHIMBA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J19-