Ned Mutalima and Anor v Brenda Mweemba and Anor (2006/HN/291) [2020] ZMHC 453 (10 September 2020)

-J-1 IN THE HIG H COURT FOR ZAMBIA AT THE NDOLA DISTRICT REGISTRY 2006/HN/291 HOLDEN AT NDOLA (CIVIL JU RlSDICTION) BETWEEN: NED MUTALIMA LASTON HAMOONGA AND BREND/\ MWEEMBA COMMl. SSlONER FOR LANDS 1 sT PLAINTIFF 2ND PLAINTIFF 1sTDEFENDANT 2 ND DEFENDANT BEF<JRE THE HONOURABLE LADY JUSTICE M. CHANDA THIS 10TH DAY OF/ SEPTEMBER, 2020 For Lhc Pl::1 in tiffs Ms LJ. P. S. Chabu of Lumangwe Chambers For Lh c 1 s L Dcfcndc1nl Ms. N. Nyangu of Magubwi & Associates For the 2 nd Defendant ' ' . ··.· ).). No appearance·· ·· ···_··. Jl:1'D GMENT LEGISLATION REFERRED TO ,-.<: 'J'h.e Lands Act, Chapter 184 of the Laws of Zambia CASES REFERRED TO - ---- --- - =-=::..=-::=-- l\ 11orl J{abwe And Charity Nlumba Kabwe V James Dak.a, The Attorney General wid Aluert Mbazima (2 006) ZR 12 -J-2 This action \Vas began by a writ of summons by the 1 st plaintiff Ned Mutalima on 13th October, 2006 against the defendants Brenda Mweemba and the Commissioner of Lands. With leave of the Court, the 2nd plaintiff Laston Hamoonga was joined to the proceedings a nd consequently an amended writ of summons and statement of claim were filed on 4 th December, 2007. The reliefs sought by the plaintiffs were as follows: - i) A declaration that the 2nc1 plaintiff is the equitable owner of stand number 7774, Kanscnshi Ndola. ii) A declaration and an order that the purported re-entry of the said stand number 7774 Kansenshi , Ndola by the 2 nd defendant is null and void I iii) J\n order compelling the 2 nd defendant to cancel the certificate of title is sued to the 1 st defendant I / iv) An in tcrim order o f injunction restraining the 1 s t defendant either by herself, agents, servants or howsoever or otherwise from continuing development o n th c plaintiff's stand number 7774 Kansenshi, Ndola afo resaid v) Costs of the s uit. vi) Any other relief the Courl may deem fil. In her defence filed on 9 th Novernber, 2006, the 1st defendant refuted the plaintiffs' claims. She asserted that stand number 7774 \Vas repossessed from the 1 st plaintiff on 15th July, 2004 by the 2nd defendant. The 1 s t defendant contended that she was the rightful o,.vner of the said property having been subsequently issued with a valid certificate of title number 48599 dated 21 st March, 2006 by the 2 nd dcf c ndant. -J-3 There was no appearance or any defence filed by the 2 nd defendant. When the matter came up for trial on 3 rd September, 2020 all the parties were before Court save for the 2 nd defendant. This Court therefore took it that the 2 11d defendant was not desirous of giving evidence and pr_oceeded with the trial. The plaintiffs called two witnesses 1n aid of their case. The 1 sL defendant also called two witnesses to support her defence . Ned Mutalima was called as the first plaintiffs' witness (PWl). His ( te stiniony as buttressed by the statement of claim was that he was I offer.ed stand number 7774 Kansenshi Ndola by the Ndola City 1 994. He narrated that the Ministry of Lands ~ bscqucn tly issued him v.rith a certificate of title dated 25th August, 1994 jn r espect of the properly. PWl testified that in or about March, 2006 he sold the said stand nu1nber 7774 to the 2 nd plaintiff at K4, 500,000.00. (unrebased currency). The witness indicated that the State's consent to assign was obtained from the 2 nd defendant and property transfer tax paid to Zambia Revenue Authority. PWl went on to narrate that the 2 nd plaintiff proceeded to complete constructing a two b edroomed guest wing which the witness had partially built. The witness further stated that the 1 st plaintiff later informed him that the Ministry of Lands declined to conclude the transfer of ownership of stand number, 7774 into his name because there was -J-/j · anoth - ei registered title holder on the property. It was PW 1 s evi ence that a check with the Ministry of Lands revealed that the 1 st d e fe ndant had been allocated stand number 7774 following a re ' ·a entry by the 2 nd defendant. The witness testified that there were no documents at the Ministry of Lands to support the alleged repossession. PW 1 told the Court that at no point was he informed of any intended repossession or served with a notice of re-entry by the 2 nd defendant. He urged the Court to restore the title to the said stand number 777 4 to him as the procedure adopted by the 2 nd defendant in r epossessing the property was irregular. In cress examination PW 1 t estified that the Ministry of Lands was supposed to follovv the correct procedure before repossessing his / The witness stated that according to page 1 of the 1 st d efcndant's bundle of documents filed on 16 th April, 2009 the 1st d efendant. was offered the property in contention on 3 rd December, 2004. He further explained that the la nd r egister report exhibited on page 9 of the same bundle of docurnents showed that the notice to re-enter was issued on 13 th February, 2004. The second plaintiffs' witness was Laston Hamoonga (PW2) who b asically confirmed PW l 's evid en ce relating to the sale of stand number, 7774 Kansenshi Ndola to him in 2006. PW3 narrated that while his advocates were attending to the conveyancing process, the 1 st defendant made representations on 29 th July, 2006 that she was the title holder of the property in contention. It was PW2's testimony -J-5 th at a check at the Ministry of Lands office in Ndola showed that the property was still in the name of the 1 s t plaintiff. The witness indicated that he later on learnt that the property in issue had been r e possessed and offered to the 1 st defendant. During cross-examination PW2 stated that at the time he bought the property he did not conduct any search at the Ministry of Lands as he had retained lawyers to deal with the conveyance process. This rnarked the close of the plaintiffs' case. The 1 ~~l defendant, Blandina Brenda Mweemba, testified as (DWl). She i told the Court tha t she was offered stand Number 777 4 Ka scn s hi Ndola on 3 rd December 2 004. DWl narrated that she was i. s u ed with a certificate of title dated 2 1 s t March, 2006 after fulfilling all the condition s of the offer. The witness asserted that she coITnncnced construction works on the property which was bare la nd in July, 200 6 . She s tated that in October, 2 006 the Ministry of Lands wrote her a le tter requesting h er to stop the development on the property. It was DW 1 's evidence that at page 9 of her bundle of documents filed into Court on 16th April, 2009 was a land register report which showed that the property in dispute was a subject of re entry on 13 th February, 2 004 by the Commissioner of Lands. She sought the indulgence of the Court that the property be given to her as s h e h a d exhibited all the evidence to show that the land was free from any encumbrances at the time of the offer. -J-6 In cross-examination the witness informed the Court that she did the necessary due diligence before she bought the property in issue. When asked if she had obtained any do cum en ts pertaining to the r e en try, DW 1 failed to give a response. In further cross examination DW 1 testified that she submitted her building plans to the Ndola City Council for s crutiny purposes in July ' 2006. The witness stated that permission to build as per the docum ents exhibited on page 16 of her bundle of documents dated 14t h January, 2016 ,vas granted by the Ndola City Council on 3 rd June , 2 008. In 1~e-cx a rnin a tion DW 1 cla rified that she commenced construction ithout a building permit in 2 006 because she did not simply follov,.r Harry Chifinda Mwewa Shamende , the Chief Lands Officer, vvas called as the 1 s t defendant's second witness (DW2} . I-Iis testimony was rn ainly to the effect tha t the documents r elating to the re-entry of stand number 7774 Kanseshi, Ndola were nonexistent at the Ministry of Lands. There were no issues raised in cross exam ination a nd this m arked the close of the 1 !;t d efendant 's defence. -J-7 Having considered the evidence in this matter, I have found as fact the f ollo\\,ing: _ It is common cause that by certificate of title number 13868 dated 25th August, 1994 the 1 st plaintiff was a lease holder of stand nurnber 7774 situated in Kanseshi, Ndola. It is also common cause that in March of 2006 the 1 st plaintiff sold the said stand number 7774 to the 2nd plaintiff at a consideration of K4, 500, 000 .00 (unrebased currency.) I find i~h a t b efore the conveyance process could be concluded, the 1 s t defenda nt s oug ht to acquire possession of the stand on the basis that the prop e r ty \Vas r epossessed by the 2 11d defendant on 13th February , It is n ol in di s pute tha t the 1 s t d efendant was issued with a certificate of title nurr1 b cr 48599 d a ted 2 1 s t March, 2006 in r espect of stand 7774 b y the Ministry of La nds. I have carefully considered the evidence adduced on record. As I understand the evidence , the crux of this matter is whether the 1 st plaintiff's prior title had b een legally brought to an end by the Con1missioner of Lands, through a valid process of re-entry to entitle the 1 s t d e fendant to the property in contention. -J-8 It is cardinal to note that the procedure to be followed before a certificate g·ster 1·s re-entry is caused to be entere 1n t e an re 1 h 1 d d · f provided for in Section 13 of The Lands Act, Chapter 184 of the Laws of Zambia. For ease of reference the said Section 13 is reproduced hereunder: _ 13. ( 1) Where a lessee breaches a term or a condition of a covenant under this Act the President shall give the lessee three months 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 representations as to why a ce,1ificate or re-entry should not be entered in the register. I (2 ) lessee does not within If the three months make the representations required under subsection ( 1 ), or if after making representations the President is not satisfied that a breach of a te rm or a condition of a covenant by the lessee was not inte ntional or was beyond the control of the lessee, he may cause the certijicate of re-entry to be entered in the register. (3) A lessee aggrieved with the decision of the President to cause a certificate of re-entry to be entered in the register may within thirty days appeal to the Lands Tribunal for an order that the register be rectified. A close examination of Section 13(1) reveals that there are three fundamental requirements which must be effectuated in order for the re-entry to b e valid at law. The three essential elements are namely that: - -J-9 1. There mus t be a breach of a term of condition or a covenant by the lessee 11. The lessee must be given three months notice of the intended re-entry 111. The lessee ought to be accorded an opportunity to dialogue with the commissioner of lands as to why the property should not be repossessed. I must immediately affirm that in the instant case there is no evidence to suggest that the afore mentioned elements existed prior to the purported re-entry by the 2nd defendant. The plaintiffs have e nde~_\voured to shovv that a check with the Ministry of Lands at their N do 1a office , r evealed that no docume nts had been filed to validate t h -~ re-entry. It is my finding that this evidence by the plaintiffs has 1- cen substantiated by the testimony of DW2, the Chiefs Lands officer , who confirmed that the documents to authenticate the re e ntry were nonexistent. The case of Anort Kabwe and Charity Mumba Kabwe v James Daka, The Attorney General and Albert Mbazima 1 is instructive on the conditions to b e satisfied for a repossession to be valid. In that case the Supreme Court eloquently held as follows: - The mode of service of the notice of intentions to a cause a certificate of re-entry to be entered in the register for a breach of the covenant in the lease as provided for in section 13(20 of the Land Act, is I ' I I \ -J-10 cardinal to the validation of the subsequent acts of the Commissioner of Lands in disposin~ of the land to another person. If the notice is properly served, normally by providing proof that it was by registered post using the last known address of the lessee from whom the land is to be taken away, the registered owner will be able to make representations, under the law, to show why he could not develop the land within the period allowed under the lease. If the notice is not properly served and there is no evidence to that effect, there ·is no way the lessee would know so as to make meaningful representations. A repossession effected in circumstances where a lessee is not 1 afforded an opportunity to dialogue with the Commissioner of Lands with a view to having an extension of period in which to develop the land cannot be said to be a valid repossession. Similarly, in the matter before me it is apparent that the glaring a bsencc of the notice of intention to re-enter and the breach of the entire process of repossession by the Commissioner of Lands, has clearly invalidated the subsequent disposal of the land to the 1 s t defendant. It must be observed that the mere print out of the land register report, produced on page 9 of the 1 st defendant's bundle of documents filed into Court on 16 th April, 2009, is not sufficient to prove that the property in issue was a subject of re-entry on 13th February, 2004. I hold that for the said land register report to be legally efficacious it -J-11 ought to have been accompanied by the notice of intention to re enter, the certificate of re-entry and or a confirmation of the re-entry . In addition, I am satisfied that the repossession herein was not logically valid as it was effected in circumstances where the lessee was not given any opportunity to make representations to the Commissioner of Lands as to why the certificate of re-entry should not have been entered in the register. In view of the foregoing the 1 st defendant's purported ownership of I stand number 7774 Kansenshi, Ndola is hereby nullified and the title deed is s ued in her name is cancelled forthwith. It is further ordered that tLc title to the said stand number 7774 Kansenshi Ndola is restored to the 1 st plaintiff. The 2nd defendant is condemned to bear the cost s o f the proceedings, to be taxed in default of agreement. I I 16a tcd u t Ncl o la this l Qllt d ay of September, 2020. I i I I i / . . . . . . . . . . . . . . . ................... . M. CHANDA JUDGE