Mweemba and 34 others v Chikankata District Council and Anor (Appeal No. 255/2020) [2023] ZMCA 222 (30 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (CIVILJURISDICTION) BETWEEN: � Appeal No.255/2020 COSMAS MWEEMBA & 34 OTHER ·· .. -·- � APPELLANTS AND � Rf. GIS1RY 1 :'t-,1'-' P.o. Box soo67. \.lj,.':>� CHIKANKATA DISTRICT COUNCIL 1sr RESPONDENT THE ATTORNEY GENERAL 2ND RESPONDENT Coram: Chashi, JJA Majula and Patel, On 23rd August 2023 and 30th August 2023 For the Appellants: & Mr B. Siachitema Mr. C. Sianondo Messrs. Messrs Lusitu Malambo & Company & Chambers For the 1st Respondent: Mrs. N. Simachela Messrs. Nchito & Nchito Advocates For the 2nd Respondent: Ms. Katolo The Attorney & Mr. C. Watopa General's Chambers JUDGMENT Patel S. C., JA, delivered the Judgment of the Court. Cases referred to: 1. Anti-Corruption Commission v Barnet Development Corporation Limited {2008) Vol 1, ZR 69 2. Hi/doh Ngosi (Suing as an administrator of the estate (Zambia) of Washington Trustees- Ngosi) SCZ Registered vs The Attorney General, Judgment No.18 /2015. Lutheran Mission 3. lntermarket Banking Corporation Zambia Ltd vs Graincom Investments Limited (Appeal 103 of 2010} {2014} ZMSC 126 (17 March 2014). 4. William Masauso Zulu v Avondale Housing Project Limited (1982} ZR 172. 5. Khalid Mohammed v Attorney General (1982} Z. R. 49. 6. Amchile Import & Export Limited Ventures) Business and Another-SCZ Appeal No. 43A/2011 and Others v Ian Chimanga (T/A Tawana Legislation referred to: 1. The Agricultural Lands Act, Chapter 187 of the Laws of Zambia. 2. The Lands Act, Chapter 184 of the Laws of Zambia. 3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. Other Works: 1. Land Law in Zambia, Cases and Materials, Frederick 5. Mudenda, 2007. 2. Mergarry's Manual of the Law of Real Property. 3. Black's Law Dictionary, 9th Edition. 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of J. Wanjelani on 21st May 2020 on a claim raised in 1978, that the Appellants were given three portions of land by the Government of the Republic of Zambia after the land had been repossessed from an absentee landlord. The Appellants enjoyed the said land until 2012, when the 1st Respondent was established and began J2 constructing a District on the said land which 1s now the subject of the dispute. 2.0 BACKGROUND 2.1 The Appellants, (the Plaintiffs in the Court below), commenced these proceedings against the i5t and 2nd Respondents, (Defendants as they were below) by way of amended Writ of Summons and Statement of Claim, (page 281 of the Record of appeal}, on 13th November 2015, claiming the following reliefs: I. A declaration that the Plaintiffs were at all material times and still the lawful and legal occupants of Mugoto Settleme nt consisting of Farmlands and Communal Grazing Land forming part of Farm 106 Chikankata District legally subdivided, surveyed and offered to them; II. A declaration that the Defendants action of displacing the Plaintiffs from the said land is unwarranted and unlawful because the said land is unwarranted and unlawful because the said land was lawfully and legally allocated to the Plaintiffs for farming and settlement purposes; Ill. A declaration that the Defendant's actions on the said land are unwarranted and unlawful in that the land was previously surveyed and demarcated for the Plaintiffs use and that the Plaintiffs were in the process of being issued with the Title Deeds. IV. A declaration that the Plaintiffs have acquired rights in the said land as Farmers and the Defendant's actions of demolishing the Plaintiffs property by the construction of the purported District Offices is unlawful; J3 V. An Order that the land be given to the Plaintiffs use of for the intended farming and settlement or in the alternative, an order to have the Plaintiffs relocated to a suitable area in the district and adequate compensation; VI. An Order for damages for anguish, undue inconvenience, harassment, damaged properties and loss of use of the land resulting from the illegal and unwarranted actions of the Defendants; VII. An Order of Interlocutory Injunction restraining and the 2nd the 1st Defendant Defendant or their servants or agents from interfering, intermeddling, fencing off, harassing, evicting, demolishing, displacing, developing or taking possession of Farm 106 in Chinkankata District, Southern Province or forming part of or known as "Mugoto Settlement" or in any way dealing with the property until the final determination of the matter. 2.2 The Appellants were among successful applicants and beneficiaries of the 'Mugoto Settlement' forming part of Farm No 106, a government possessed Farm which consisted of farm lands, residential land and communal grazing lands. A meeting was held on 28th March 2002 by the Mazabuka Municipal Council, where it was resolved that the Appellants were to be offered title deeds to their respective pieces of of land and that their respective pieces land and applications would be sent to the Commissioner of Lands and that on recommendation from the Mazabuka Municipal Council. 2.3 At some time in 2012, without notice to the Appellants, the pt Respondent sent surveyors to the area to survey the land for purposes of constructing a District, consisting of a Civic Centre and District Council Offices. The 1st Respondent subsequently moved onto the settlement and began carrying J4 out construction works on the communal grazing land where the Appellants animals grazed. 2.4 Consequently, on 2nd October 2013, the Appellants wrote to the pt and 2nd Respondents demanding that they refrain from their actions and stop the construction works on the said land. However, this was ignored and the Respondents carried on with the works. 2.5 The 1st Respondent filed its defence on 19th January the 2016 denying Plaintiffs allegations and averred that the said 'Mugoto Settlement Area' was part of Mazabuka District to the said and no one holds title land. 2.6 The 2nd Respondent filed its defence on 6th May 2016 and also denied the Appellants allegations. It was averred that the land in question has always been State Land and that the Appellants are not entitled to any of the reliefs that they sought to enforce, and each of its claim was denied. 3.0 DECISION OF THE COURT BELOW 3.1 The Trial Judge considered the pleadings, oral testimonies and Parties' arguments respectively. The Lower Court noted that 2 central issues emerged: i. Whether the land in issue is state land or customary land? 11. Whether the Plaintiff have any acquired or accrued or interest rights to the land in dispute? 3.2 The Lower Court considered the Appellants' position being that they were recipients of the land in dispute after it was repossessed from an absentee JS landlord in 1978. After the land was surveyed by officials from the Department of Agriculture, the land was divided into 10 hectares of farming, residential areas and communal grazing land. 3.3 The Appellants, in the court below, contended that the land was given to Chief Naluama and it became customary land. They further submitted that this was recognised by the Attorney General reflected in his letter dated 4th January 2015, where he referred to the land as customary, the Mazabuka District Council Stakeholders Meeting Minutes of 14th December 2012 at pages 500-504 that referred to the ownership of land as customary. 3.4 The Respondents contention was that the land was repossessed and reverted to the State and therefore is state land. The Lower Court placed reliance on the evidence of DW4, being a Senior Lands and Deeds Officer at Ministry of Lands, who informed the Court that once land is repossessed by the State, it cannot revert to being held under customary tenure. 3.5 The court below in analysing this decision, noted that there was no dispute that the land in issue was held on title by the absentee landlord before it was repossessed by Government. The Lower Court noted the Agricultural Lands Act1 and noted the functions of the Board under Section 8 which deals with matters of state land and Section 10 which empowers the Minister, by Statutory Instrument, to declare any state land to be subject to the provisions of the Act. 3.6 In arriving at its conclusion, the Lower Court placed reliance on the Lands Act2 and noted that there is recognition of holding land on customary tenure and the option of converting from customary tenure to leasehold tenure J6 upon fulfilling prescribed conditions. However, the Lower Court did not observe any corresponding provision that state land can be re-converted to customary tenure. 3.7 The Lower Court arrived at the conclusion that the land in question is State Land and not held under customary tenure. 3.8 In the next issue, the Lower Court considered the arguments of the Appellants in their submissions that they had acquired and accrued rights and interests over the land that they were lawfully allocated in 1978 by the President through his lawful agent, the Minister of Lands and Agriculture and cannot be changed or abolished through changes in the law. The Lower Court found that the court based its findings on the evidence presented before it. 3.9 With regards to the second issue, the Lower Court relied on the guidance of the case of Anti-Corruption Commission v Barnet Development Corporation Limited 1 where the Supreme Court stated that: "Under section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by a holder of of title. a certificate However, under section 34 of the same Act, a certificate of title can be challenged and cancelled for fraud or reasons for impropriety in its acquisition." 3.10 In the Lower Court's opinion, no certificate of title was produced to prove ownership as required by the provisions of section 33 of the Lands and Deeds Registry Act3 • The Lower Court noted that the Appellants had made applications to Mazabuka District Council of title and a for certificates recommendation was made to Ministry of Lands and that a number of offers J7 had been issued to that effect. The Appellants had indicated that they had applied for 10 hectares to be on title. 3.11 The Lower Court was of the considered view that the Appellants were lawfully on the land and were entitled to the 10 hectares of land and to be issued the certificates of title to those portions. In relation to the residential and grazing lands, the Lower Court was of the considered view that the Appellants did not produce any evidence of a lease or payment of annual rent to show that they had acquired or have accrued rights under the provisions of the Agricultural Lands Act, to the residential and communal grazing lands. 3.12 The Lower Court in its decision, found that the Appellants had an equitable interest to use the said land but the State, as a legal owner has the overriding legal interest. The Lower Court dismissed the Appellants case over its claims save only for the right to be given title deeds to the 10 hectares of land which is now the subject of the appeal before this Court. 4.0 THE APPEAL 4.1 Being dissatisfied with the Judgment of the Lower Court, filed the Appellants a Notice of Appeal and Memorandum of Appeal on 19th June 2020, advancing ten (10) grounds of appeal: 1. The Court below erred both in law and fact in dismissing the Appellant's rights to the communal grazing and residential that land even after finding the Appellants are settlers in the Mugoto Settlement Scheme of Chief Naluama which was established in 1978 after the Government repossessed Farm No.106(a) Mazabuka District and that the Appellants were J8 beneficiaries of the repossessed Farm No.106{a) Mazabuka District who have been on the land in issue from sometime in 1978/1979 and have been living, farming and grazing their animals on the land in issue. 2. The Court below erred both in law and fact in dismissing the Appellants' rights to the communal grazing and residential that land even after finding the Appellants had an equitable interest. 3. The Court erred in failing to also find that the Appellants had a legal right to the whole of the land independent of the ten hectares. 4. The Court erred both in law and fact in holding were not that the Appellants entitled to the land against the documentary evidence confirming the Appellant's right to the land. 5. The Court erred in law and in fact relying on part of the oral evidence against the documentary evidence on record in determining the land interest of the Appellants. 6. The Court erred in law and fact in affirming by the 1st the encroachment Respondent who never had any interest in the land at all. 7. The Court erred in holding that no extent of the land the Appellants used had been encroached by the Chikankata District Council ignoring that the 1st Respondent had no right to be there and ignoring the evidence on record to show that the land was indeed encroached. 8. The Court erred in holding that no one has been displaced and more so in holding that no inconvenience was suffered when the grazing land where animals graze was occupied by the 1st Respondent while part of it and residential areas had been subdivided and offered to members of the public, J9 roads have been graded directly areas, into residential some graves have been degraded and disturbed and a canal has been dug up across the land. 9. The Court erred in law and in fact in ignoring that the Government had given land to the Appellants and the issuing of the statutory notice by the Minister was discretional. 10. The Court erred in finding that the advocates for the Appellants were discourteous to opposing Counsel and the witness. 5.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 We have duly considered and appreciated Heads of the Appellant's Arguments filed on 14th December 2020 which we will not recast here save for emphasis as necessary. 6.0 THE 15T RESPONDENT'S HEAD OF ARGUMENT 6.1 The 1st Respondent filed its Heads of Response on 27th September 2021. These too, have been duly considered, and will not be recast save for emphasis where appropriate. 7.0 THE 2 ND RESPONDENT'S HEAD OF ARGUMENT 7.1 The 2nd Respondent did not file any arguments and at the hearing advanced seized the reason that Counsel with conduct having moved to another position, they had been unable to file their arguments. As a result, the they would simply rely on the record and would not be able to address Court. JlO 8.0 THE HEARING OF THE APPEAL 8.1 The Appellants, 1st Respondent nd Respondent and 2 were represented by Counsel as indicated above. At the hearing, Counsels reliance placed on their respective heads of argument and made oral submissions to augment their arguments. 8.2 On grounds 1, 2 and 3, Counsel for the Appellant referred to page 335 line 50 of the record of appeal and stated that there was no dispute that the land was given to the settlers by the State in this matter. 8.3 Counsel for the Appellant urged the Court to consider the letter under the hand of the Attorney General at page 351 /354 of the record and stated, had the Lower Court taken a proper view of the evidence, it would have no problem upholding that the settlers were entitled to all portions of the land. 8.4 Counsel for the 1st Respondent responded to the oral submissions of the Appellant and stated that the Report of the Commission Inquiry at page 324 of the record, cannot be read in isolation and urged this Court to consider all the evidence and all the claims raised in the Court below. 8.5 With regards to the letter raised by the Appellants above, Counsel for the pt Respondent stated that this was an opinion of the Attorney General based on a set of facts given to him by the Appellants. Counsel submitted that the letter was not binding and the Lower Court was on firm ground in all its findings as there was no evidence of encroachment or misplacement of property on record. Jll 8.6 In response to the above, Counsel for the Appellant referred to pages 396 to 418 of the record of Appeal and urged the Court to consider the evidence of the animals that were grazing of the the said land beside the buildings Appellant and submitted that the land had been tampered with. 9.0 DECISION OF THIS COURT 9.1 We have carefully considered the grounds of appeal reproduced in paragraph 4 above, the impugned Judgment of the and the arguments Parties. We will address our minds to the grounds of appeal in the collective order canvassed in the Appellant's heads of argument. 9.2 In addressing our minds to grounds 1, 2 and 3, we note that they are interrelated and will be addressed accordingly. Our attention has been drawn to Appellants argument that the genesis of the land is well captured by the Report of the Commission of Inquiry into the law in Southern Province dated 25 June 1982. It is their submission that it is clear from the Report on page 336 of the Record that the land which was given was in extent of 7 953 hectares, divided into 10 hectares each, communal grazing and residential areas and it was to be organised on a village settlement basis. 9.3 It is the Appellants submission that the pt Respondent who built on the land does not have any right at all. The Court having of the 10 upheld the granting hectares of farming land should have also upheld the grant of residential and grazing land. The Appellants relied on the decision of the Supreme Court in the case of Hildah Ngosi (Suing as an administrator of the estate of Washington Ngosi) vs The Attorney General, Lutheran Mission (Zambia) J12 Registered Trustees 2 in support of their argument that though their names were not registered, the fact they were given the land by the Government, means the Appellants have an inchoate right. We have had occasion to analyse the cited case of Hildah Ngosi, where the late Washington Ngosi was given the land by South End Properties in appreciation of his services. He died without having registered his interest in the land, and it was held that the Plaintiff had an inchoate interest in the land, which is defined in Black's Law Dictionary, 3 as a property interest that has not yet vested, as the late Washington Ngosi had a property interest not that was yet to vest, but had done so, for want of registration. It is their submission that the lower Court should not have ended an equitable right and should endorse the fact that the Appellants had a legal right to the land. 9.4 The Respondents have countered that having evaluated all the evidence on Record, there was a clear finding by the Court below, that the land in issue was and is still State Land. It is their submission that the finding of the Court below is supported firstly by the evidence of the Appellants witnesses themselves and referred to the evidence of DW2, seen at page 792 of the Record, lines 9 to 15 where the said witness testified before the lower Court that Farm 106 was repossessed by the Ministry of Lands and it was not customary land but state land. It was also her evidence that once land becomes State land it cannot revert to being customary land. 9.5 Having introspected the law, we find ourselves in agreement with the Appellants submission, only to the extent that the genesis of the land is well captured in Report of the Commission of Inquiry into the law in Southern J13 Province at page 324 of the Record of Appeal. Firstly, we have observed that the Report is descriptive as it relates to the Naluama Settlement Scheme relevant to the matter herein. Part (c), at page 336 of the Record, refers. Under Section 7 (ii), the Report is clear on the position that the land was available for use by peasant farmers in the Mazabuka District and provides for Land Use Plans to be followed in areas planned for grazing. A perusal of the Report demonstrated, unequivocally, that the disputed land in the Mazabuka District was classified as State Land, page 327 of the Record of Appeal. 9.6 That being the case, and given the evidence on Record, at page 760, the Appellant's witness (PW2), Cosmas Mweemba himself, gave evidence and confirmed that he and the Appellants were given 10 hectares of land when he applied. He added that the residential area and grazing areas were not measured, stating that no one owned the grazing land and that it belonged to the community. He explained that although he did not have any legal documentation to show his interest in the land, he had submitted applications to the Commissioner of Lands for them to be issued with of title. Certificates 9.7 We are guided by the Learned author Frederick S. Mudenda, Land Law in Zambia Cases and Materia/ 1 who defines an equitable right as follows: "An equitable right is a right in personam; it is enforceable against certain persons only. It binds every transferee of Land except a bonafide purchaser for value of a legal estate in the land who had no notice of the equitable right." J14 The Learned author Frederick S. Mudenda goes on to quote Mergarry's Manual of the Law of Real Property, which summarizes the distinction between a legal and equitable right in the fol'lowing terms: "There is a great difference between legal and equitable This is rights. sometimes expressed by saying that legal rights are rights in rein, equitable rights are rights in personam. A legal interest in land is a right in the land itself so that whoever acquires the land is bound by that right, whether he knew of it or not. A legal right is like a live electric wire which shocks those who touch it whether or not they know of it. Equity on the other hand would enforce equitable rights only against certain persons ... Legal rights are good against the world; equitable rights are good against all persons except a bonafide purchaser of a legal estate, for value without notice and those claiming under such a purchaser .... The extent to which a purchaser is bound by third party rights when acquiring property is often determined by whether the rights are equitable or legal ... " 9.8 We cannot therefore fault the finding of the Trial Judge in the Lower Court, and we are satisfied with the reasoning arrived at in light of the decision taken by the Supreme Court in the case of Anti-Corruption Commission v. Barnet Development Corporation Limited1 in which case, the court emphasised of title that the certificate is conclusive evidence of ownership of land by the holder of the certificate. From our analysis of the Record, we are satisfied with the Commissioner's Report that states that the residential and grazing has the lands is state land and the state having a legal interest right to change the use of that land. We are of the considered view that the JlS State being the legal owner, has an overriding interest which is good against other competing interests. We equally by the are of the view that the finding learned Trial Judge, that the Appellants have failed to demonstrate to the court the extent to which they have been affected by the Respondents activity or the extent to which they have acquired rights to the residentia I and grazing lands, is well supported by the evidence on record. Grounds 1 to 3 cannot succeed and are dismissed accordingly. 9.9 Turning to grounds 4 and 5, counsel together and the two grounds we will address it in the same manner. It was for the Appellant appears to have argued the Appellants submission that the Court was presented with documentary evidence and oral evidence. The Appellants placed emphasis on the Report of the Commission of Inquiry into Land Matters in the Southern Province appearing at page 324, and the letter from the Attorney General on page 351 to 354, as being supportive of the Appellant's right to the land. The Appellant has advanced the argument that the lower Court fell into serious misdirection by omitting to rely on the documents which were readily available on the Court record. They argued that if the Court had properly evaluated the document, it would have seen that the legal right of the Appellants to the land was unsurmountable. 9.10 The Appellants submitted that the Respondents only have oral evidence which they relied on in the Court on the question of the Appellant's ownership of the land. They argued that the Court ought to have relied on the document before it. The Appellants referred this Court to the case of J16 lntermarket Banking Corporation Zambia Ltd vs Graincom lnvestments where the Supreme Court reasoned that: "Failure by the Learned Deputy Registrar to consider these important documents that were readily available on the record and, instead, to place reliance on the oral evidence given by PW2 (Mumbwali Simuzimbili), was a serious misdirection that calls for our interference with the findings ... " 9.11 Theist Respondent has argued that there was no conflict between the oral evidence and the documentary evidence. We have scrutinized the contested evidence and note that the Report of the Commission is clear on this point. The Report at page 327 of the Record of Appeal, in part 4 A under sub­ heading 'State Land' confirms that the disputed land is State Land in the Mazabuka District and is calibrated into settlement schemes under the Ministry of Agriculture and this evidence was confirmed by the Appellant witnesses. We are also of the considered view that the Report is clear that the grazing land was meant for use but not ownership. 9.12 The Appellants further reliance placed on the newspaper cutting at page 229 of the Record confirming the grant of land to the villagers of Chief Naluama. It was the Respondents position that the Lower Court rightly observed that the newspaper cutting had a date inserted in pen, so one could not determine when that story appeared in the media. Secondly, in and of itself the newspaper article was not evidence that the land spoken of was that occupied by the Appellants or evidence of it being customary land. We are also guided by the decision referred to in lntermarket Banking Corporation limited3, cited by the Appellants above, in which the Court reasoned and J17 agreed with the Appellant's position, which was essentially that a failure by a party to produce evidence should react against them. Based on the above evidence, we are equally unsatisfied with the documentary evidence presented to court that was meant to justify the Appellant's right to the land. Grounds 4 and 5 equally suffer the same fate and are dismissed. 9.13 We now turn to grounds 6, 7 and 8 which the Parties argued collectively. It was the Appellant's argument that in the Respondents' Defence, there is no counter-claim from the i5t Respondent asserting that it had any right in the land. The Appellant has argued that there is no evidence that the ist Respondent was given the land by any entity by law. recognized 9.14 It was their argument that the Lower Court in failing the 1st to hold against Respondent, affirmed that the 2nd Respondent had the right to land which right is not supported by any evidence. It is their submission that page 356 of the Record of Appeal shows that the 1st Respondent had started partitioning and selling the land which is part of the land granted to the Appellants. It was their further submission that the Appellants have been inconvenienced, as per the Appellants' evidence, and have been subjected to their land being parcelled out as plots. 9.15 The Appellants relied on the oft case of William Masauso Zulu v Avondale Housing Project Limited4 , which they have argued is an appropriate case to reverse findings which were made in the absence of evidence and pray that this Court should reverse it. 9.16 To counter this line of submission, the Respondents have relied on the old adage: 'he who alleges must prove' which was confirmed by the Supreme J18 Court, in the case of Khalid Mohammed v Attorney General5 • The Respondent has argued that the burden of proof lay with the Appellants to prove their claim and no onus rests on the 1st Respondent, to prove how it came into possession of the land in question. 9.17 There are a plethora of authorities by the Supreme Court on when an appellate court will interfere findings with a trial court's of fact. In the case of Amchile Import & Export Limited and Others v Ian Chimanga (T / A Tawana Business Ventures) and Another Malila JS, as he then was, restated the Supreme Court's position as follows: "To succeed, a party urging an appellate court to reverse findings of fact by a trial court, must demonstrate that the trial court made findings which were perverse or in the absence of relevant evidence, or upon a misrepresentation of facts, or that on a proper view of the evidence before the court, no trial court properly directing its mind to it could make those findings. 9.18 We have already determined that the residential area of the land and the grazing land is State Land having noted the reasoning of the Trial Judge in the Court below. We have no reason to upset this finding of fact. The 1st Respondents referred to page 49 of the Record of Appel at lines 17 to 21 to support this argument: "No evidence was led to show what property by the was demolished Defendants or what anguish, inconvenience, harassment or loss of use of the land was suffered by the Plaintiffs arising from the Defendants actions to require payment of damages. J19 9.19 The Respondents argued that a claim for encroachment of land can only be made by the owner of the property. In the case at hand, the grazing land did not belong to the Appellants. The State simply permitted them to graze their animals there. Theist Respondent further submitted that this was confirmed by the evidence of the Appellants witnesses at page 760 of the Record of Appeal at lines 10 to 25. The Appellants witness told the Court that he applied for 10 hectares of land in 1978 from Mazabuka Municipal Council and he was given ten hectares. The witness also confirmed that he still owns 10 hectares of land and still resides at the same residential plot. 9.20 We have considered this argument and are of the considered view that there is no convincing evidence on record which demonstrates ownership of the residential and communal grazing part of the land. There is equally no evidence on the Record that demonstrates that the 1st Respondents encroached on their 10 hectares of land in which they have a legal interest. The Appellants are turning Report. a blind eye to the Commissioner's 9.21 We are therefore of the view that the Court below was on firm ground when it found that there was no evidence that the Appellants land had been encroached. We find no merit on the ground that the 1st Respondent had no right to be there. We are persuaded by the lack of evidence on the record that does not demonstrate that there was any damage they have suffered, and no evidence that anyone has been displaced. Any attempt by Counsel to point at pictorial evidence in support of the claims cannot succeed at this point. Grounds 6,7 & 8 are equally dismissed. J20 9.22 We now turn to ground 9. It is the Appellants argument that there is no divergence on the creation of the settlement and that it was given to the Appellants. The Appellants reiterated that the land was divided into 10 hectares for farming, and for residence and grazing. It was also clear that the land was to be governed on a Village Settlement basis. It is their submission that the document produced by the 2nd Respondents from and the evidence the witness from the Planning authority, in dicates that the land is customary as seen at page 786 line one of the Record. It is their submission that it follows that the issue of the Appellants right to the land is unquestionable. 9.23 It is further the Appellants' submission that the Lower Court erred in its finding that the Appellants were not entitled to the land as a settlement, when it looked at the Agricultural Lands Act1 at page 47 of the Record. The Appellants argued that there is no reason to deny them land which they were given by the government. 9.24 It is the 1st Respondents submission the that the Court below did not ignore fact that the Government had given land to the Appellants. The court found in favour of the Appellants on that point. 9.25 The Respondent's referred to page 46 of the Record of Appeal, the Court found as follows: "It is also not in dispute that the Plaintiffs had made applications to Mazabuka District Council for certificates of title and a recommendation was made to the Ministry of Lands so that they are offered the land and that a number of offers have since been issued to that effect. This evidence was not disputed and in fact, confirmed by OW4. The Plaintiffs themselves indicated J21 that they had applied for 10 hectares to be on title. I therefore find that the Plaintiffs were lawfully on the land and are entitled to the ten hectares of land and to be issued the certificates of title to those portions." 9.26 We are of the considered view that the Trial Judge did not ignore that the Government had given the said land and are of the view that this assertion by the Appellants is unreasonable. The finding of the lower Court is unassailable, and we find that the Court was on firm ground in its decision that the Appellants were not entitled to the other parts of the land based on the lack of evidence on the Record which ultimately supports the Courts' finding. We are therefore of the view that Ground 9 does not succeed. 9.27 We have considered the arguments from both parties in ground 10. We have also had occasion to reflect on the observations made by the Court below. The Respondents have also quoted from the submissions, which prompted the Court below to make her remarks, have taken to which the Appellants exception to warrant bringing this as ground of appeal. 9.28 Seeing as this does not affect the outcome of the Appeal, we will conservatively decline the invitation to comment on matters or interfere with the observations of the trial court, who was best placed to comment on the conduct of the Parties and Counsels in her Court. J22 10. CONCLUSION 10.1 The appeal having been unsuccessful, we dismiss it with costs to the Respondents, both here and in the Court below. Same to be taxed in default of agreement. COURT OF APPEAL JUDGE B. M. MAJULA COURT OF APPEAL JUDGE A. N. PATEL, SC COURT OF APPEAL JUDGE J23