Michael Hugh Fisher v Kitwe City Council and Ors (Appeal 111 of 1999) [2001] ZMSC 144 (18 May 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE AND LUSAKA APPEAL NO. 111/99 (CIVIL JURISDICTION) MICHAEL HUGH FISHER APPELLANT AND KITWE CITY COUNCIL BARNABAS CHELLA ATTORNEY GENERAL 1st respondent 2nd respondent 3rd respondent Coram: Sakala, Ag. DCJ, Chirwa and Chibesakunda, JJS on 10* August 2000 and 18th May 2001 For the Appellant: For the 1st Respondent: For the 2nd Respondent: For the 3rd Respondent: Mr W M Kabimba of Kabimba & Company, Lusaka Mr V Michelo of Kitwe City Council Mr P J Pendwe of Simwanza Pendwe and Company, Kitwe Mr J Jalasi, State Advocate Chibesakunda, JS delivered the judgment of Court JUDGMENT Authorities: 1. De Smith, Wool and Jowell - Judicial review of Administrative Action [Sweet and Maxwell, 1995], 2nd Edition, Page 315 2. The Laws of Property - Megarry & Wade, 3rd Edition, P1008 Laws referred to 3. The Lands and Deeds Registry Act. Cap 185. Section 35 Cases referred to: 4. David Nzooma Lumanyenda and Goodwins Kafuko Muzumbwa v Chief Chamuka and Kabwe Rural District Council and Zambia Consolidated Copper Mines Limited SCZ Judament No. 21 of 1989. 5. R R Sambo, N N Sambo and Lusaka Urban District Council v Paikani Mwanza SCZ Appeal No. 1/98. 6. ZCCM Limited v Richard Kangwa and Others Appeal No. 169/69. - J2 - 7. Wilson Masauso Zulu v Avondale Housing Project Limited 1982 ZR 172, 174 8. Augustine Kapembwa v Danny Maimbolwa and Attorney General 1981 ZR 127. 9. Buchman v Attorney General (1993-4) ZR 131. 10. Sithole v State Lotteries Board (1975) ZR 106. 11. Derrick Chitala v The Attorney General SCZ No. 14 of 1995. 12. Nkhata and Four Others v The Attorney General (1966) ZR 124 In this appeal the Appellant, Michael Hugh FISHER, appealed to Lands Tribunal (here in referred to as the Tribunal) to review the decision of the Lands Commissioner, represented before us by the Attorney General, rejecting the Appellant’s application to be allocated Farm No. 3517, Kitwe. His claim before the Tribunal was that:- 1. The 1st Respondent, Kitwe City Council acted in bad faith when it resolved at its meeting held on the 14th day of January, 1997 that the 2nd Respondent, Barnabas Chella, a councillor be recommended for the allocation of Farm No. 3517, Kitwe; 2. The 2nd Respondent acted in bad faith when he opted for Farm No. 3517, Kitwe when as a Councillor he knew or ought to have known the circumstances surrounding the said farm; 3. The 3rd Respondent acted in bad faith in issuing the Title Deeds to the 2na Respondent when they knew that all along the Appellant had expressed willingness to be granted a 99 year lease; He had also asked the Tribunal to order the 3rd Respondent to cancel the Title Deed issued in favour of the 2nd Respondent; and that he the Appellant be issued with documents of title accordingly. It was the Appellant’s claim before the Tribunal that Kitwe City Council as Is1 Respondents malafide recommended Bamabas CHELLAH, 2nd Respondent, to be allocated Plot No. 3 517, Kitwe, by the Lands Commissioner represented by the Attorney General, 3rd Respondent. The Tribunal ruled against the Appellant, holding that there was no malafide in the recommendation by the Is1 Respondent Plot No. 3517, Kitwe to be allocated by the 3rd Respondent to 2nd Respondent. The facts before the Tribunal were that the Appellant’s father was granted an annual grazing lease of farm No. 3517 as way back as 3rd April 1967. The Appellant’s father and subsequently himself paid ground rent for this plot up to September 1997, which rent was accepted by the Ministry of Lands. In 1967 the Appellant s father requested for a long lease of 99 years on the same Farms Nos. 3517 and 3417 but the request on Farm No. 3517 was turned down. His request on Farm No. 3417 was accepted. It was upgraded to 14 years. Subsequently, the Appellant again approached the Lands Commissioner seeking to consolidate Farms Nos. 3517 and 3417. A survey was conducted for that purpose. The Appellant surrendered the title deeds to the Lands Commissioner for both farms to be consolidated and up-graded to 99 years lease. The application to consolidate the two Farms was refused. The Appellant’s testimony before the Tribunal was that Farm No. 3517 wras tied to his economic operations of Farm No 3417 for 30 years and had been fenced off together with Farm No. 3417 for game ranching. He testified also that they had been waiting for Farm No. 3517 to be upgraded to a 99 year lease as way back as 1980. The Appellant, in cross examination, however, conceded that the annual lease tor Farm No. 3517 technically lapsed at the end of first year although the 3rd Respondent continued receiving ground lease rent up to the year 1997 and as such the annual grazing lease continued up to 1997. He testified also that although there was a lot of correspondence between his father, himself and the Lands Commissioner, Farm No. 3517 was never upgraded and remained an annual leasehold. He, therefore, stated that in view of the correspondence between himself and the 3rd Respondent, the 3 Respondent should have given him notice before allocating that farm to the 2nd Respondent. He should have been given a chance to defend his application for the upgrading of this Farm before the allocation to the 2”d Respondent. He argued that even the 2nd Respondent at the time he was allocated Farm No. 3517 had another plot No. 78, Kitwe. The 1st Respondent’s evidence before the Lands Tribunal was that they recommended the 2I,d Respondent to be allocated Plot No. 3517 because it had been allocated to nobody and that they were not aware of the Appellant s interest in the farm J4 and that the officers of the 1st Respondent advised the Is' Respondent of the status of the farm. The 2nd Respondent’s evidence is that he was allocated initially two plots Nos. 78 and 3517, Kitwe. He was advised that he had to choose one of the two plots and he chose Farm No. 3517, Kitwe. He has developed the plot in question. He has invested in building his house, in building workers’ houses and has cultivated ten (10) acres of that land. He has uprooted the trees of the whole farm in question. According to him, when he first settled on this farm he saw no signs of the Appellant’s investment. He saw no game at the farm. Fie also testified that Farm No. 3517 was not totally dependent on water supply from Farm No. 3417 as stated because Farm No. 3517 borders with Kafiie River. In cross-examination, he testified that his allocation was not irregular and that it went through the due process. He had to excuse himself from the council meeting when the allocation of this Farm by the 1st Respondent’s counsellors was debated and resolved in his favour. On behalf of the 3rd Respondent, it was stated that in terms of Clause 7 of the Grazing Lease Agreement between the 3rd Respondent and the Appellant, the 3"J Respondent had an absolute discretion to renew or to refuse to renew the lease agreement. It was also the evidence of the 3rd Respondent that in concluding the grazing tenancy between the 3rd Respondent and the Appellant, the 3rd Respondent did not intend to grant a longer lease other than an annual lease to them. So the 3rd Respondent was not in breach of any agreement. The Lands Tribunal held that there was no bad faith on the part of the 1st and 3rd Respondents and ruled in favour of the 2nd Respondent. Now before us, Mr Kabimba, learned counsel for the Appellant, advanced detailed arguments and argued that the Tribunal erred in law and fact in holding that the Is’ and 3rd Respondents did not act malafide when they resolved to allocate Farm No. 3517 to the 2nd Respondent without giving due notice to the Appellant. He adopted the definition from the De Smith, 2nd Edition page 315, where the learned Authors defined malafide as:- - J5 - “The concept of bad faith is said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends io achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or private interests.” He gave a brief account of the facts and stated that as can be seen at Page 14 of the Supplementary Record, the Commissioner of Lands refused to convert this Farm No. 3517 to a 99 year lease initially because of the intended dam site at Kafubu River and the fact that when this dam would be built a large portion of the area in Farm No. 3517 would be under water. According to him, therefore the Appellant’s interest in the land had been on record for a long long time and as such it was bad faith on the part of the 1st and 3rd Respondents not to have given notice to the Appellant when recommending and allocating of the farm in question to the 2nd Respondent. He argued that since the Appellant was not given a chance to be heard when deciding to recommend the allocation of the farm in question and since he was not given a chance to be heard when the 3 rd Respondent allocated the same Farm to the 2"d Respondent, this was irregular and amounted to bad faith. He went on to argue that the 2nd Respondent had another piece of land on Plot 78, Kitwe, allocated to him. He opted for Farm No, 3517. He referred to the principles of natural justice as discussed in De Smith 2nd Edition page 184 where the learned Authors have said that; “Prima facie, failure to even attempt to give prior notice to a person against whom prejudicial allegations are to be made, or whose interests will suffer detriment by what is proposed, will vitiate the subsequent proceedings” According to him this court in deciding whether or not that was bad faith must take into account the totality of the conduct of the parties in executing such a transaction. He submitted that the fact that the 1st and 3™ Respondents acted in bad faith should render the whole transaction null and void at law and the 2nd Respondent cannot, therefore, benefit from such an irregular transaction. In his view, the transaction was not transparent and was fraught with bad faith. He referred to pages 50, 51, 95 and 96 of the Supplementary records, as evidence, which he argued brings out the aspect of bad faith. J6 On the second ground of appeal Mr Kabimba advanced that the Tribunal misdirected itself in law by failure to decide on the facts and evidence on record on the Appellant’s right by adverse possession in the allocation of Farm No. 3517, Kitwe, to the 2nd Respondent and issuance of the certificate of title to him. He argued that as way back as 1967 Farms Nos. 3517, 3197 and 3417 were all declared private game area for the Fishers. He stated that Section 35 of the Lands and Deeds Registry Act. Cap 185 (3) provides that the right by adverse possession is precluded once land becomes a subject of certificate of title, as was stated in the case of David Nzooma Lumanvenda and Goodwins Kafuko Muzumbwa v Chief Chamuka and Kabwe Rural District Council and Zambia Consolidated Copper Mines Limited (4):- “No rights by adverse possession can be acquired if land becomes the subject of a certificate of title". The Honourable Court, however, went further to state that in order for the Appellants in the case to succeed on the right by adverse possession, the Appellants would have to show that they and their predecessors in title had acquired rights by adverse possession for a period of twelve years prior to the granting of the provisional certificate of title..... ” According to him since the Appellant’s father had been given an annual tenancy agreement, and this agreement continued up to 1997, the Appellant and his predecessors had acquired the right by adverse possession at the time of action before the Tribunal and the Tribunal should have decided accordingly. Mr Pendwe on behalf of the 2nd Respondent in response attacked the grounds of appeal on the basis that the grounds were based on a finding of facts and did not raise points of law or a point of mixed law and facts. According to Mr Pendwe all the arguments now advanced before us were argued before the Tribunal. The Tribunal on the other hand found as a fact that there was no bad faith. The Tribunal also found that as fact. So the appellants have failed before us to establish elements, which must be satisfied before the findings of facts by the Tribunal can be disturbed. He argued that the appellants have failed to establish that the Tribunal’s decision was perverse or that the Tribunal misdirected itself in taking into account extraneous matters in reaching its J7 findings. He went on to say that although it was common cause that the Appellants were tenants in an Annual Grazing Lease Agreement of Farm No. 3517 up to 1997 there is no law which fetters an owner of land from alienating his land to anybody of his choice. The only condition is that a purchase for value takes land subject to any encumberances on that land. The Annual Grazing Lease was an encumberance. The Appellant and his predecessors always recognized the title of the President. The Appellant’s father was a tenant from the President. The Appellant miscellaneously applied to the President for consolidation of plots 3517 and 3417 He paid rent up to 1997. So his possession was never adverse. He cited Megarry and Wade (2). He pointed out to us that the issue of discrimination and adverse possession were never raised before the Tribunal and as such cannot be raised before us. He cited Buchman v Attorney General (9). His last argument is that this court ought to take judicial notice of the fact that the 1st Respondent’s duty was only to make recommendations and that whatever imperfections associated to that exercise, the ultimate decision was by the 3rd Respondent. He urged this court to dismiss the appeal with costs. Mr Michelo, counsel for the 1st Respondent supported the findings of the Tribunal and argued that the findings by the Tribunal that there was no bad faith, was a finding of fact and that this court cannot disturb a finding of fact. He cited in support the cases of ZCCM v Richard Kangwa and Others (6), Wilson Masauso Zulu v Avondale Housing Project Limited (7) and Augustine Kapembwa v Danny Maimbolwa and Attorney General (8). Mr Jalasi, learned State Advocate for the 3rd Respondent relied on his Heads of . Argument but for emphasis referred to the case of Derrick Chitala v The Attorney General (11) and argued that the appellant has not established before us conditions for disturbing the findings of the Tribunal. In the Derrick Chitala v The Attorney General (11) case, this court held that there were three conditions upon which an administrative action can be subjected to judicial control, namely, illegality, irrationality and procedural impropriety. - J8 - He referred to his written Heads of Arguments in arguing these arguments. He further argued that these must be established before the court can disturb any findings of the Tribunal. He went on further to say that Section 34 of the Lands and Deeds Registry Act provides that a certificate of title can only be impugned on grounds of fraud. He referred to the case of Sithole v State Lotteries Board. (10) where this court held that, if a party alleged fraud, the burden of establishing fraud is greater than a simple balance of probabilities. He thus argued that the Appellants had not discharged this onus and therefore the appeal must be dismissed with costs. We agree with Air Jalasi that under Section 34 of Lands and Deeds Registry Act, a certificate of title once bestowed on somebody can only be impugned if fraud is proved. The standard of proof, as we said in the Sithole v State Lotteries Board (10) case, is higher than simple balance of probabilities. Understandably so, because fraud is a crime. We found no proof of fraud in this case. Air Kabimba has intriguingly brought in an araument of bad faith citing De Smith. Wool and Jowell (1), where the learned Authors defined malafide (bad faith) as we have already referred to in our Judgment. The record shows there were applications by the Appellant to have this said Farm No. 3517 converted to a 99 year lease. There were one or two rejections by the 3rd Respondent to convert this same farm to a 99 year lease and its grazing. According to the record at one time the rejection was because of the proposed Kafubu River Dam which if built was to cover a large portion of this farm but as was said in the case of Nkhata and Four Others v The Attorney General (12) by the court of appeal, the evidence of facts at trial court which had ample opportunity and advantage of seeing and hearing witnesses, can only be disturbed by this court if inter alia by> a. Reasons for some unknown direction or misdirection or other-vise, the learned Judge erred in accepting evidence which he did; or b. In assessing and evaluating evidence the Judge took into account matters which ought not to have been taken into account or failed to take into account some matter which he ouuht to have taken into account. - J9 - Mr Jalasi reminded us of these same conditions as was held in the case of Derrick Chitala v The Attornev-General (11). In the case before us none of these conditions exists and as such we cannot disturb the findings of the trial court, namely, that there was no malafide. Mr Kabimba cited the case of Augustine Kapembwa v Dannv Maimbolwa and The Attorney-General (8). We have drawn comparisons and distinctions between the case before us and this case cited. We, in dealing with this point, also wish to deal with Mr Kabimba’s other arguments that the Appellant had obtained the right to title by adverse possession, since they had obtained an annual tenancy agreement with the 3rd Respondent. We hold that in accordance with clause 7 of the Grazing Lease Agreement between the 3rd Respondent and the Appellant the 3rd Respondent had an absolute discretion to renew or refuse to renew this agreement. So the 3rd Respondent did exercise this discretion in refusing to upgrade the grazing lease. As Mr Pendwe pointed out to us in his written arguments, the issues of discrimination and adverse possession were never raised before the Tribunal and as such cannot be raised before us. In addition, we agree that the Appellant and his predecessor always recognized the title of the President to Farm No. 3517. Both the Appellant and his predecessor paid rentals for the annual lease up to the year 1997. So the possession was never adverse. According to Megarrv and Wade (2) which principle we adopted the tenant can not acquire a title against his land lord during the currency of the lease tor occupation by tenancy is never adverse to the land lord’s title. We hold that this principle is as valid in Zambia as it is in Britain even though our own land tenure is confined to leaseholds. In Zambia, the absolute ownership of a piece of land is vested in the President in trust for the people. So we, therefore, agree with Mr Michelo that there is no law, which fetters any owner of land from alienating that land to any bona fide purchaser for value provided that bonafide purchaser takes that land subject to any existing encumberances on that land. In our view, therefore, there was an annual grazing lease between the Appellant and the 3rd Respondent which went on up to 1997 and that that was subject to renewal or to refusal to renew every year. This did not fetter the 3rd Responding from alienating the same land. In view of the foregoing, we find not merit in the appeal. We dismiss the appeal with costs. E L SAKALA SUPREME COURT JUGDE D K CHIRWA SUPREME COURT JUDGE L P CHIBESAKUNDA SUPREME COURT JUDGE