Oliver Chilufya and Ors v Nicholas Smith Lwanda [2019] ZMCA 346 (1 November 2019)

A (cid:9) PP4j IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO 79/2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: OLIVER CHILUFYA (cid:9) ARNOLD CHILESHE (cid:9) LASTON MWABA (cid:9) 1ST APPELLANT 2NDAPPELLANT 3APPELLANT AND NICHOLAS SMITH LWANDA (cid:9) RESPONDENT Coram: Makungu, Sichinga, Ngu lube J. J. A On the 21st day of November, 2018 and 1st day of November, 2019. For the Appellants: Miss M. Kapapula - Messrs SLM Legal Practitioners For the Respondent: Mr. Y. Daka - George Kunda & Co. JUDGMENT Makungu, JA, delivered the Judgment of the Court. Cases referred to: 1. Kalusha Bwalya v. Chadore Properties and another (2012) ZMHC 36 2. Holmes Limited v. Buildwell Construction Co. Ltd (19 73) ZR 97 3. Milner v. Minister of Pensions (194 7) 1 ALL ER 372 4. Victor Namakando Zaza v. Zambia Electricity Supply Corporate Limited (2001)ZR 107 5. Wilson Masauso Zulu u. Avondale Housing Project (1982) ZR 172 6. Ody's Oil Company Limited v. The Attorney General, Constantino James Papoutsis SCZ Judgment No. 4 of 2012 7. Philips v. Copping (1935) 1 KB 15 Legislation referred to: 1. The Lands Act, Chapter 194 of the Laws of Zambia 2. The Housing (Statutory and Improvement Areas) Act, Chapter 194 of the Laws of Zambia 3. The Urban and Regional Planning Act No. 3 of 2015 4. Statute of Frauds, 1677 Other authorities referred to: 1. Chitty on Contracts, Hugh Beale 29th Edition Volume 2, 2004, Sweet & Maxwell Limited, Page 49. 2. Geofrey Chelateir Cheshire, M. P. Furmston and Cecil Herbert Starut Fifoot, Cheshire and Fifoot's Law of Contract, 10th Edition. 1981. New York, Butterworth. 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of the High Court Judge S. Kaunda Newa delivered on 1st December, 2017. The matter arose from wrangles over plots in Garden House Compound, Kanyama, Lusaka. The and 3rd appellants allegedly sold plots 1951/19 and 1951/20 to both the 1st appellant and the respondent. The respondent commenced an action before the lower court against the 1st to 3rd appellants who were 1st to 3rd defendants respectively, claiming damages in the sum of K57, 000.00 for the structures he had constructed on plot 1951/20 which were demolished by the 1st appellant. He also claimed for an injunction to restrain them from continuing to encroach on his plot. 1.2 In his defence and counter claim, the 1st defendant averred that the plots in issue were both his and that they comprised of four plots. He made the following claims: -J2- (cid:9) 1. That he be declared the rightful owner of plot no. 1951/19 Kanyama which consists of four plots, inclusive of plot No. 1951/20. 2. A declaration that the purported sale of the property to the plaintiff by the Kanyama West Land Development Committee was irregular, null and void. 3. An order that a licence to occupy the said land be issued to the 1st defendant. 4. Damages for inconvenience and taking up possession of the property by the plaintiff. S. Mesne profits from the date the plaintiff took possession of the property to the date of Judgment. 2.0 EVIDENCE BEFORE THE LOWER COURT 2.1 After the 2011 Presidential and Parliamentary elections, the Patriotic Front (PF) took over governance of the country. At that time, there was vacant land in Lusaka West Kanyama Constituency in an area called Garden House which some PF cadres, the youths in particular were instructed to safe guard by the member of parliament (MP) Mr. Gerry Chanda who promised to allocate the remaining piece of land to them after the government had utilised part of it to build a school and a clinic. .. J3.. 2.2 The 2nd and 3rd appellant who had safe guarded the land were later given some pieces of that land by the said MP. The 2nd and 3 appellants were Youth Secretary and Youth Treasurer respectively. The second appellant was later promoted to Vice Chairman of the Kanyarna Constituency Lusaka West Land Allocation, New Village Complex Resident's Development Committee which will herein after be referred to simply as Residents Development Committee (RDC). 2.3 The area in question was said to have been reserved for the Zambia Army and referred to commonly as "The Buffer Zone." On 511 June, 2011 the respondent bought plot 1951/20 from the 211d and 3rd appellants which was a four in one plot including plot 1951/19. The 1 appellant bought the same 4 plots from the same vendors on 1001 October, 2011. Each vendor sold to him two plots at 1(10, 000 per plot. The respondent paid the sum of 1(36, 000.00 to the 21H1 and 3rd defendants and Olallo, the Branch Chairman. He was then given an ownership form headed "Kanyama Constituency Lusaka land Allocation, New Village Complex Resident's Development Committee, Lusaka West." The outstanding balance was K11,000.00. -J4- Thereafter, the respondent went to South Africa for three months and when he returned, he found that plot 1951/19 was sold by the 2nd and 3rd appellants to the 1st appellant. The matter was discussed with the RDC which decided to demarcate the plot in half so that the 1st appellant gets one half and the respondent the other. Each plot consisted of two plots. The respondent was authorised to build by RDC and he had a boundary wall constructed as well as a three bedroomed house up to window level. 2.4 In December 2015, the 1st appellant through his servants or agents demolished the plaintiff's boundary wall and house. After meeting with the 2' and 3rd appellant and Olallo, the respondent was requested to pay the 2nd and 3rd appellants the sum of K20,000.00 which was later reduced to K15,000.00 to resolve the matter. The respondent paid the said amount in instalments to several people including Musukwa Kayula, Olallo 2nd appellant and 3rd appellant. He proceeded to build a house which was demolished in his absence later. It was also in evidence that on 17th February, 2016 the respondent bought the same piece of land from Loveness Mushanga at K20,000.00 -J5- because Loveness claimed to be the owner of the plots since 2009. 2.5 The respondent did not produce receipts to show the costs of construction of the house and perimeter wall which were demolished. The sizes of the plots were unclear as they were said to be 50 X 50, 25 X 25, 17 X 35, 25 X 50 and 20 X 20. The plaintiff also testified that the RDC members informed him that the land in issue belonged to the RDC under the Movement for Multiparty Democracy (MMD) and that he had made a mistake to deal with the youths on the ground. 2.6 It was also in evidence that RDC had no mandate to allocate land in that area in June, 2011 as PF was not yet in power although it had already formed the committee. The 1st appellant and the respondent were both issued with documents by the vendors for the transactions, which they produced in evidence. Lack of description of the land on those documents was attributed to the late numbering of the plots. The 1st appellant went ahead and finished building a boundary wall which he found incomplete and built other structures on plot 1951/19. His builders were -J6- country is vested in the president and he may allocate land vested in him to any Zambian. The president has delegated this power to the Commissioner of lands. By virtue of Section 4 of the Housing (Statutory Improvement Areas) Act Chapter 194 of the Laws of Zambia which was repealed by the Urban and Regional Planning Act No. 3 of 2015, Kanyama area in issue was declared an improvement area under Statutory Instrument No. 34 of 1999. Further that the District Council is mandated to allocate and subdivide land in the area in question with the approval of the Ministry of Lands pursuant to Section 38 of the Housing (Statutory and Improvement Area) Act. (2) The lower court stated that it is a matter of common knowledge that the council acts in the Housing and Statutory Improvement Area through the elected councillors and that there are Residents Development Committees that perform the functions. 3.3 On this basis, the court found that the MP had no jurisdiction whatsoever to allocate land to any one in that area unless he was a member of the residents committee that agreed to give youths the land or with the consent of the said committee. The Residents Committee did not give -J8- such consent and as a result the 2' and 3,1 defendants sold the land and so did Loveness Mushanga and other youths. 3.4 The Judge noted that no plot numbers were indicated on the documents that were issued to the plaintiff and defendant upon purchasing the piece of land, and the allegations made by the plaintiff could only be resolved against the defences raised by the defendants on credibility. She found that the respondent's evidence that it was resolved by the ward committees that he keeps half of the plot and the defendant the other half was not challenged and therefore it was credible. 3.5 The respondent's evidence that since the 2' and 3rd appellants were discouraged from signing documents they resorted to backdating the documents was also unchallenged and it was therefore credible taking into account the evidence on record that it was not possible for the transactions to have taken place in June, 2011 before the general elections because at that time the land belonged to Zambia Army. That the respondent bought the land from the 2'' and 31 appellants before they sold it to the 1 ST appellant. Even the letter of sale between Loveness -J9- Mushanga and the plaintiff dated 17th February, 2016 supports the fact that the respondent bought the land first and the 1st appellant was not a bonafide purchaser for value without notice of the respondent's interest in the land. 3.6 The trial Judge further found that the 1st appellant had no jurisdiction to demolish the structures put up by the respondent as the Residents Development Committee had resolved that the respondent should keep the property. The first appellant was therefore ordered to pay the value of the demolished structures to the respondent to be assessed by the Deputy Registrar with interest according to the Judgments Act. The counter claim was dismissed on the ground that the 1st appellant had failed to establish that the property was his. Costs were awarded to the respondent. 4.0 GROUNDS OF APPEAL 4.1 This appeal is based on five grounds couched as follows: 1. The court below erred in law and in fact when it held that the Kanyama Residents Development Committee did not give consent for the sale of the plot in issue to the 1st appellant, and that the evidence of the plaintiff went unchallenged to the effect that he was sold the land by the 2nd and 3rd appellants acting with a person called 011alo. -J10- 2. The court below erred in law and in fact when it found that the respondents evidence went unchallenged and yet the 2nd and 3rd appellants disputed the respondents evidence suggesting that he paid money to them for purchase of the plot in issue. 3. The court below erred in law and fact when it held that the Residents Development Committee met the 2nd and 3rd appellants together with the respondent and that it was resolved that the respondent keeps half of the plot, which is No. 1951/20, and the Pt appellant keeps the other half being no. 1951/19. 4. The court below erred in law and in fact when it found for the respondent in respect of the said plot despite various inconsistencies in evidence/documents relating to the respondent's acquisition of the said plot. 5. The court below erred in law and fact when it found that the 1st appellant was responsible for demolition of the structures put up by the respondent on the subject plot, thus liable to pay the respondent the cost of the structures demolished. 5.0 ARGUMENTS ON BEHALF OF THE APPELLANT 5. 1 During the hearing of the appeal, counsel for the appellants Miss Kapapula relied on the written heads of argument filed on 1611, May, 2018. On ground one it was submitted that the -Jil- 2nd and 3rd appellants as Youth Secretary and Vice Treasurer respectively, had apparent authority from the RDC to allocate land. Reference was made to Chitty on Contracts, (1) 291h Edition, volume 2 Page 49 where it states that: "A disposition of property made by an agent acting within his actual authority obviously transfers the property, in accordance with the general principles. And a disposition made by an agent acting within his apparent authority will likewise be effective." 5.2 Counsel argued that the evidence of the respondent that he was sold the property by the 2nd, 3rd appellants and 011alo was challenged. It was revealed that the purported contract of sale was in fact an agreement for groceries that had been collected by Mr. Mulenga from Chibolya compound. Both the 2nd and 3rd appellants denied having sold the property to the respondent. The lower court therefore misdirected itself when it held that the respondent's evidence was unchallenged. 5.3 In support of the second ground of appeal, Miss Kapapula submitted that the 2' appellant was merely a witness to the transaction between the respondent and Peter Mwape -J12- pertaining to a plot in Makeni Villa but the respondent tried to indicate the contrary. Reliance was placed on the case of Kalusha Bwalya v. Chadore properties and another (1) where the principle laid down in Holmes Limited v. Buildwell Construction Company Limited (2) was restated: "Where the parties have embodied the terms of the contract In a written document, extrinsic evidence is not generally admissible to add to, vary, subtract from or contradict the terms of the written contracts." 5.4 In arguing ground three, Miss Kapapula contended that the respondent did not call any witness from the RDC to substantiate his allegation that at a meeting involving himself, the 2111 and 3rd appellants and the committee took place. And that in that meeting it was resolved that the 1st appellant keeps one half of the plot and the respondent the other half. Therefore, the lower court erred when it found that there was such a meeting. 5.5 On the fourth ground of appeal, it was argued that there were a number of inconsistencies with respect to the dimensions of the land bought by the respondent and the dates of purchase. The respondent's testimony that the sale agreement was signed between himself, the 2nd appellant -J13- and the secretary of the RDC was rebutted as PW2 stated that the signature purported to be for the secretary Kapandula, was actually not his. The respondent bought plot 1951/20 from Loveness Mushanga and not from the 2nd and 3rd appellants. 5.6 On ground five, Miss Kapapula submitted that the respondent failed to prove that the 1st appellant was the one who demolished his buildings. The lower court erred to order the 1st appellant to compensate the respondent for the demolished structures in the absence of receipts showing the costs of materials used. On this point, she relied on the case of Milner v. Minister of Pensions (3) which sets out the common law principle that in civil cases the plaintiff must prove the case on a balance of probabilities. 5.7 In her oral arguments augmenting the filed heads of argument, Miss Kapapula contended that the documents relating to the transactions in issue did not give a description of the properties, the price and owner. She stated that the Kanyama Development Committee derived its authority from the member of Parliament of Kanyama and the District Council. The 2nd and 3rd appellants had -J14- power to sell and subdivide land with the consent of the committee. 6.0 ARGUMENTS ON BEHALF OF THE RESPONDENT 6.1 In countering ground one, the respondent's counsel Mr. Daka relied on the heads of argument filed herein on 21st November 2018, it was submitted that the trial Judge did not err in law and fact when she held that the "RDC did not consent to the sale of the plot in issue to the 1st appellant and that the evidence of the plaintiff went unchallenged to the effect that he was sold the land by the 2nd appellant, 3rd appellant and 011alo. It was stated that it is clear from the evidence on record that the council was not involved in authorising the youths to safe guard the land in Garden Housing Area or the giving of the plots to the 2'"' and 3rd appellants by the area member of parliament, Mr. Gerry Chanda. 6.2 It is clear that the area MP gave out plots to the youths as a way of appreciating the fact that they were guarding the plots where the MP wanted a clinic and school built. As rightly pointed out by the trial Judge, land in this country is vested in the President and the council, with the approval of -J15- the Minister is empowered to subdivide land in the Statutory and Housing Improvement Area. The MP had no authority to allocate land and the 2nd and 3rd appellants had no authority from the RDC to allocate land. As stated by DWI on page 292 of the record of appeal lines 3-6, the plots were allocated to the 2nd and 3rd appellants as individuals and therefore he did not bother to find out if they had the consent of the committee to sell the land. 6.3 The fact that so many people claimed ownership of the land in issue, which brought about confusion, demonstrates the lack of consent from the District Council. Reference was made to the case of Victor Namakando Zaza v. Zambia Electricity Supply Corporate Limited (4) where it was held that: "The findings made by the trial court should not lightly be interfered with in keeping what this court has said on numerous occasions in the past." 6.4 Referred was also made to the case of Wilson Masauso Zulu v. Avondale Housing project (5) where the Supreme Court held among other things that: "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the -J16- findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts." 6.5 In light of the foregoing authorities, it was submitted that the findings of the lower court should not be interfered with because they were based on the evidence on record. 6.6 In response to the second ground of appeal, Mr. Daka argued that the lower court was on firm ground when it found that the respondent's evidence that he paid the 2' and 3rd appellants for the plot in issue was unchallenged. He pointed out that page 299 line 20 of the record of appeal indicates that the 2nd appellant confirmed having agreed with the respondent on the purchase price of K40,000.00. On page 300 line 1-3 he acknowledged receipt of K6,000.00 from the respondent. He stated that the record also shows that DW2 (the 3'' appellant) acknowledged having signed the purchase agreements and that the respondent paid for the plot. 6.7 On the third ground of appeal, counsel contended that the trial Judge did not err in law and fact when she held that the RDC met the 2nd and 3rd appellants together with the plaintiff and it was resolved that the respondent keeps half -J17- of the plot which is 1951/20 and the 1st appellant keeps the other half being 1951/19. The said holding was based on the evidence and should not be reversed. 6.8 In opposing the fourth ground of appeal, Mr. Daka argued that there was no inconsistency in the evidence adduced by the respondent. It is clear that the respondent bought the land in June, 2011 before the 1st appellant bought it. The respondent explained to the court why he dealt with so many people over the same plot. Therefore, the fourth ground of appeal has no merit. 6.9 On the 5th ground of appeal, counsel argued that the people who demolished the respondent's buildings were acting on the 1st appellant's instructions and therefore they were his agents. The 1st appellant was therefore liable to compensate the respondent. 7.0 DECISION OF THIS COURT 7.1 We have carefully looked at the record of appeal, the written and oral arguments. We shall tackle the grounds of appeal together, because they are connected. The issue as we see it, is whether the sale of the land by the 2nd and 3rd -J18- appellants or the RDC to the 1st appellant and the respondent was legal and enforceable. 7.2 It is indisputable that Section 3 of the Lands Act absolutely vests all the land in this country in the President to be held perpetuity for and on behalf of the people of Zambia notwithstanding anything to the contrary contained in any law, instrument or document. However, the President may alienate land to any Zambian subject to any other law. Therefore, the lower court had referred to the said section and Housing (Statutory Improvement Areas) Act which was repealed by the Urban and Regional Planning Act No. 3 of 2015 and in particular Section 76 of the Urban and Regional Planning Act (3) which provides: "Any acts, orders and conditions lawfully done, given or Imposed under the provisions of the Town and Country Planning Act, the Housing (Statutory and Improvement Areas) Act, or under the provisions of any planning scheme, zoning scheme or zoning plan prepared under those Acts before the commencement of this Act shall remain in force and be deemed to have been lawfully done, given or imposed under this Act, but shall not, in respect of anything done prior to the -Jig- V commencement of this Act, give rise to claims for compensation under this Act." 7.2 The lower court also referred to Section 38 of the Housing (Statutory Improvement Areas) Act (2) which reads as follows: "38. Subject to the provisions of this Act, and notwithstanding anything to the contrary contained or implied in any written law or any document, a council may in an Improvement Area, with the approval of the Minister- (a) (cid:9) subdivide the land; 7.3 The lower court rightly found that the President has delegated his power to alienate land to the Commissioner of Lands. We hasten to add that the Commissioner of Lands works hand in hand with the council in land matters. The council is the planning authority. The lower court rightly found that Kanyama area was declared as an improvement area under Statutory Instrument No. 34 of 1999. We also endorse the lower court's holding that only the council with the approval of the Minister, can subdivide land in Kanyama pursuant to Section 38 of the Housing (Statutory Improvement Areas) Act. -J20- I 7.4 It is indeed a notorious fact which should be taken judicial notice of, that the council acts in the Housing and Statutory Improvement Areas through the elected councillors and there are Resident Development Committees (RDC's). However, the composition, objectives and functions of the RDC's were not disclosed in the evidence on record and we cannot speculate what they are. 7.5 The lower court's finding that the MP Gerry Chanda who authorised the youths including the 2nd and 3rd appellants to go and secure the land and acquire part of it had no authority to do so was correct because there was no evidence that the President, Ministry of Lands or the council played a role in the distribution of that land. 7.6 The record shows that the area in question (the Buffer Zone) before the transactions in issue was reserved for the Zambia Army. However, there was no evidence as to whether the situation had changed. It follows that the 211c1 and 3rd appellants illegally acquired the land and sold it to both the 1st appellant and the respondent. Although the 2'' and 3' appellants were Youth Secretary and Youth Treasurer respectively, they merely used the RDC as a front when they -J21- issued the ownership forms to the buyers because the evidence on record shows that they sold the land in issue as individuals and personally received the payments together with 011alo. The fact that certain payments were received by the wards and the RDC does not make the transactions valid. 7.7 The illegality of the sales to both the 1s, appellant and the respondent is compounded by the fact that there were confusions as many people claimed ownership of the same land which led to the respondent paying K36, 000.00 to the 2nd and 3rd appellants, as well as 011alo, Ku, 000.00 to the ward as a surcharge for having dealt with the youths instead of the RDC, K20,000.00 to Loveness Mushanga, K15,000.00 to ward two and K1,000.00 to the 2nd defendant on behalf of a Mr. Mwape bringing the total to K83,000.00. There was no evidence as to how Loveness Mushanga and Mwape acquired the property. The unavoidable conclusion under the circumstances is that the transactions or deals were all shoddy. 7.8 In the ownership forms purportedly issued by the RDC to both the 1st appellant and the respondent, the plots which were not described at all, were said to have been owned by the RDC. -J22- This contradicted the evidence that the 2nd and 3rd defendants sold the plots as individuals. From the statute law referred to and the evidence on record, it is clear that the RDC had no capacity to own land and therefore did not own it. 7.9 The said ownership forms/memoranda are not enforceable because Section 4 of the Statute of Frauds, (4) 1677 states that: "Transactions or dealings In land must be evidenced in writing and such writing must meet the threshold of a "note or memorandum." The learned authors of Cheshire and Fifoots Law of Contract, (2) 10th edition, 1981, state at page 185 that: "The agreement itself need not be in writing. A note or memorandum of it is sufficient, provided that It contains all material terms of the contract. Such facts as the names, or adequate identification of the parties, the description of the subject matter, the nature of the consideration, comprise what may be called the minimum requirements. But the circumstances of each case need to be examined, to discover if any individual term has been deemed material by the parties, and if so, it must be included in the memorandum." -J23- 7. 10 The ownership documents issued by the RDC do not meet the said minimum requirements of a memorandum. We are therefore, unable to deduce from them, the exact portions of the land purportedly sold to the parties by the RDC and the prices at which they were sold. 7.11 In deciding that the respondent owned the piece of land where he built the structures which were demolished by the 1st appellant, the lower court gave the reason that it was because, after the demolition, the RDC met with all the parties concerned and resolved that the 1t appellant should keep half of the property and the respondent the other. We take the view that the trial Judge misdirected her itself in law and fact because the law as already pointed out stipulates that only the council with the approval of the Minister can subdivide the land. Furthermore, there was no evidence that the RDC's decision was ratified by the council. It was illegal for the RDC to purport to sell the land without the council's involvement. On the basis of the case of Masauso Zulu v. Avondale Housing project, (5) we reverse the finding of the lower court that the land belonged to the respondent. -J24- 7.12 The Supreme Court has in the case of Ody's Oil Company Limited v. The Attorney General and Constantinos James Papoutsis (6) held that it is trite that the Courts will not enforce a contract which is tainted with illegality as that is contrary to public policy. Where a contract is tainted with illegality, the contract is void and it would be against public policy to enforce such a contract. 7.13 Scrutton LJ said in the case of Philips v. Copping (7) on page J15: "It is the duty of the court when asked to give a Judgment which is contrary to statute to take the point, although the litigants may not take it. Illegality once brought to the attention of the court overrides all questions of pleadings, including any admissions made therein." 7.14 We note that the respondent wrote a letter dated 4th February, 2016 to the Lusaka District Council headed "Application for a recommendation letter." He was requesting for approval of his purported ownership of plot 1951/20. Attached to the letter were photocopies of approved site plans and his National Registration Card. The letter is on page 18 of the record and the purported approved plan on pages 182 and 183. We note that the plan -J25- relates to "proposed re-planning of stand number 27083 in Chinika area off Mumbwa Road. This is not the area in issue. There is no indication that the Lusaka City Council responded to that letter. We therefore cannot speculate that the council was involved in the transactions in question. 7.15 The authority to build was not given by the council but by the 2nd and 3rd appellants and the RDC. Therefore, the 1st appellant and the respondent had no legal right to build on that land. 7.16 The lower court rightly found that it was the 1st appellant who caused the demolition of the buildings put up by the respondent. However, the court erred to order that the respondent be compensated because the structures were illegally built. The lower court's decision that the respondent be compensated is therefore set aside. Since the transactions were illegal, the losses and gains shall remain where they have fallen. 7.17 For the avoidance of doubt, none of the parties herein owns the land and they all have no legal rights to occupy or possess it. -J26- 8.0 CONCLUSION 8.1 All in all, there is no merit in this appeal and we accordingly dismiss it. Each party shall bear its own costs in this court and the court below. C. K. MAKUNGU COURT OF APPEAL JUDGE D. L. Y SI' HING (cid:9) COURT 0 APPE L JUDGE (cid:9) P. C. M. NGULUBE COURT OF APPEAL JUDGE