Patson Bbenkele v Choma Municipal Council (APPEAL NO.037/2018) [2019] ZMCA 436 (31 January 2019)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO.037 /2018 HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: PATSON BBENKELE APPELLANT AND CHOMA MUNICIPAL COUNCIL RESPONDENT Coram: Makungu, Kondolo, Siavwapa JJA On 22nd September, 2018 and 31 st day of January, 2019. For the Appellant: Mr. F. H. M. Hamakando of Butoka Chambers For the Respondent: Miss N. Puta of Nhari Advocates JUDGMENT MAKUNGU, JA delivered the Judgment of the court. Case referred to: 1. Nhkata and 4 others v. the Attorney General (1986) ZR 173. Legislation referred to: 1. Business Names Act Chapter 389 of the Laws of Zambia. 2. Town and Country Planning Act chapter 283 of the Laws of Zambia. 3. Court of Appeal Rules, 2016. ' I The appellant is the registered proprietor of a piece of land described as plot No. 128, Mukasa, Chandamali situated in the Choma District of th e Southern Province of the republic of Zambia. The appellant carries on business under the name and style of Powermark Private School which is registered under the Business Names Act Chapter 389 of the Laws of Zambia. He has built a school on the plot with the approval of the respondent which approval was given on 8 th December, 2012. In August, 2008 with the approval of the Chandamali Residential Development Committee (RDC) and not the respondent, the appellant bought various pieces of land from Gift Kalunga and Moses Kalunga Mbwende. The said pieces of land were close to plot 128 Makasa Chandamali. On 2 nd September 2010, 6 th June, 2011 and 20 th July 2011 , the appellant paid the respondent the sum of K6 ,000,000 by equal instalments of K2 ,000,000 for plot allocation but the plot was described on the receipts only as Powermark Private School. According to the appellant the payments were for consolidation of his old plot with the newly acquired plots. On 21 st April, 2015 he -J2- received a letter from the respondent informing him that he had illegally encroached on plots 584 7, 5841 , 5848, 5842, 5849 and 5843 owned by the respondent. The genesis of the problem was the discovery by the respondent that the appellant had dug fish ponds in an open space without planning permission. The appellant was consequently ordered to suspend all construction works on the land, remove all occupants from the site, remove all loose material and other valuables, demolish all illegal structures and restore the land to its original state. In the same letter, the appellant was warned that failure to comply, would result in the demolition of the illegal structures by the respondent. On 20th May, 2015 the appellant lodged an appeal with the Town and Country Planning Tribunal (hereinafter referred to simply as the (tribunal). Evidence led by the appellant before the tribunal, was that his plot was in extent 150 by 259 metres but the respondent took away part of it and reduced the size to 158 x140 metres. The crucial issue that arose in the matter before the tribunal was whether the appellant had built the fish ponds within his legally allocated plot. The appellant had admitted before the tribunal that he did not obtain planning permission to build the fish ponds from the respondent and -J3- ... that his approved plan of 8 th December, 2012 only showed the production unit and not fish ponds. That the Government Fisheries Department Officials gave him verbal permission to construct the fish ponds. On the application made by the appellant's advocate, the tribunal went to visit the site where they heard evidence from the appellant and 4 witnesses for the respondent. The tribunal had traversed the boundaries on foot and found that the area in dispute was only a few kilometres from the Choma Central Business area. It was also found that it fell within the provisions of Section 22( 1) (c) of the Town and Country Planning Act as the area was within twenty miles from the boundaries of the areas mentioned in subsections a and b of Section 22 of the Act. The said subsections described the areas where a developer or occupier is required to prepare a structural plan or a local plan. The tribunal further found that planning permission was required for any development of the land in issue. That the fish ponds were built for purposes of breeding fish and not for decorative purposes. That the fish ponds were built in an area clearly ear marked for residential purposes and not for agriculture and no -J4- planning perm1ss1on was given by the respondent for the construction of the fish ponds. While the tribunal was on the site, the respondent's witness Killian Malambo a physical planner for the respondent, physically took measurements to show the dimensions of the appellant's piece of land ear-marked for construction of the school. The tribunal accepted Killian Malambo's evidence that the fish ponds were constructed in an open space which was left vacant by the respondent. Further that the fish ponds were located outside the boundaries of the appellant's plot and therefore they could not be sanctioned. On the basis of the aforesaid findings , the tribunal made the following orders: (a)The creation of fish ponds in the open space by the respondent, now appellant was illegal for lack of planning permission from the applicant now respondent as well as being outside the respondent's boundaries. (b)The respondent (now appellant) should restore the land in question to its original use by burying the fish ponds within a period of 90 days from the date of the Ruling, failure to which the respondent shall be at liberty to move in and restore the -JS- .. land to its original state. No Order was made as to costs. Dissatisfied with the said ruling, the appellant appealed to the High Court on six grounds structured as follows: 1. The Town and Country Planning Tribunal misdirected itself in law and fact by holding that the construction of the fish ponds was without the authority of the Planning Authority when in actual fact the fish ponds were within the boundaries of the site plan which was approved by the respondent on 8 th December, 2012 in its capacity as Planning Authority. The plot was allocated to the appellant in 2008 by the Chandamali Resident Development Committee which at the time was an agent of the respondent. 2. That the learned Tribunal misdirected itself in law and fact when it ignored the allocation of this piece of land by the respondent to the appellant. 3. That the learned Tribunal misdirected itself in law and fact by holding that the appellant should restore the land in question on which the fish ponds are constructed to its original use when the appellant has in his possession, approved site and building plans from the respondent and necessary payments were made to the respondent for the same piece of land. -J6- . ' 4. That the learned Tribunal misdirected itself in law and fact when it held that the fish ponds were outside the appellant's boundaries when in fact the respondent placed the beacons in 201 0, marking or showing the boundary for the appellant's land which included the area where the fish ponds are situated. 5. That the learned Tribunal misdirected itself in law and fact when it ignored the 2012 Choma Municipal Council approved layout plan of Chandamali area in preference for the proposed layout plan of 2014, for the same area which had not been presented to the public for scrutiny and possible objections as provided for under Section 19 (2) of the Town and Country Planning (Amendment) Act of 1997 of the Laws of Zambia. 6. That the learned Tribunal misdirected itself in law and in fact when it exhibited open biasness in favour of the respondent during the proceedings, notwithstanding caution from the President of the Tribunal. Upon considering the submissions from both parties and the decision of the tribunal, the lower court found that the appellant failed or neglected to obtain permission from the planning authority to -J7- • I construct the fish ponds. That Section 22 of the Town and Country Planning Act was therefore breached. The court deemed the construction illegal for lack of planning authority. That the tribunal's findings that the fish ponds were beyond the boundaries of the appellant's plot and that they were not meant for ornamental purposes but for breeding fish was based on the evidence adduced by Killian Malambo. The court further found that the allegation that the tribunal was biased against the appellant was unsubstantiated. That there was ample evidence on the record that the rules of natural justice were complied with by the tribunal. The court therefore upheld the Tribunal's decision and dismissed the appeal with costs. This appeal against the decision of the lower court is based on six grounds framed as follows: 1. The honourable court below misdirected itself in law and fact when it ignored the appellant's Development plan that was approved by the respondent on 8 th December, 2012. The private development plan was made in accordance with the provisions of the Town and Country Planning A ct Chapter 283 of the Laws of Zambia and the same was approved by the respondent planning authority (Choma Municipal Council) vide minute -JS- • t number PWRE/ 26/ 02/ 13 of the special plans works, development and real estate committee meeting held on 13th February, 2013 and subsequently, it was adopted by the ordinary council meeting of 10th April, 2013 vide minute number CMC/ 99/ 04/ 13. This development plan created plot no. 128 Chandamali where the fish ponds are located. 2. The honourable court below misdirected itself in law and fact when it failed to recognise the failure by the planning authority (Choma Municipal Council} to comply with the provision of the Town and Country Planning Act which provide that the plan of a local or private developer should be included in the local plan prepared by the planning authority for submission to the Director. The respondent planning authority (Choma Municipal Council} prepared a proposed development plan in 2014 in the same area, but did not include the already existing appellant's development plan which the respondent approved earlier in 2013 as stated in paragraph 1 above. This failure is in direct breach of the provisions of the Town and Country Planning Act Chapter 283 of the Laws of Zambia. 3. The honourable court misdirected itself in law and fact when it did not take into consideration the failure by the respondent -J9- • I planning authority, Choma Municipal Council to publicise its 2014 proposed development plan to enable the public submit objections as provided for under the Town and Country Planning Act Chapter 283 of the Laws of Zambia. The Act provides that any person may submit representations to the Minister before the same are approved. If the Minister or Director decides not to cause a public inquiry to be held, he shall, before approving the structure plan or local plan, afford to the planning authority and or to any person who has duly made a representation or objection to the planning authority and who has not withdrawn such representation or objection and such other persons as he may deem fit, an opportunity of appearing before and being heard by a person appointed by him for that purpose. In breach of the above provisions of the law, the respondent Choma Municipal Council/ailed to comply with the laid down procedure. This move denied the appellant his legal right to submit his objection in respect of the proposed development plan. 4. The court below misdirected itself in law and fact when it held that the school and fish ponds were outside the appellant's boundary and should be demolished, when inf act the school and fish ponds are right inside the beacons of plot no. 128 -JlO- Chandamali and are part of the school life skills curriculum on the approved production unit area. Plot 128, Chandamali was created by the development plan of 2012 that was approved by the respondent Choma Municipal Council in its capacity as a planning authority as has already been stated above. 5. The honourable court below misdirected itself in law and fact when it held that the fish ponds were outside the boundary of the appellant's land when the evidence from the site plan of 2012, that was approved by the respondent Choma Municipal Council in 2013 clearly show that the fish ponds were outside the appellant's plot 128, Chandamali. Further, the honourable court below misdirected itself in law and fact when it held that the fish ponds were constructed on an open space outside the school area which was left vacant by the respondent. From the evidence adduced, it is clear that at the time the appellant prepared and submitted his development plan, the respondent had not yet prepared any development plan for the area. The area was a squatter/ shanty compound and the appellant bought pieces of land from various people who had squatted in the area. He bought those pieces under the auspices of the Resident Development Committee which, as evidence has shown, was -Jl 1- working together with the respondent. The appellant then consolidated these pieces of land into one development plan which was numbered as plot 128- Chamdamali by the respondent and approved it accordingly. It was therefore misdirection by the honourable court to hold that the respondent had left a vacant area because there was no development plan the respondent could have referred to at the time. The respondent made the proposed plan only in 2014 in which it failed to comply with the Town and Country Planning Act by not including the already existing development plan that was made by the appellant. 6. The honourable court below misdirected itself in law and fact when it held that the appellant created his own misfortune and hence must suffer the consequences of his creation. To the contrary, it is the respondent who created the misfortune by failing to comply with the legal provisions. Failure by the appellant to apply for planning permission does not warrant losing the property, instead that can be cured by formalising the anomaly if that is legally required. Besides, there is no requirement under law for schools to apply for permission from a planning authority to undertake production unit activities. The -J12- appellant clearly indicated that the fish ponds are within the skills curriculum of the school, as such there is no need to seek authority from the planning authority to undertake production unit activities in schools. There is therefore no illegality about the construction of the fish ponds within the school as part of the school skills program under the production unit. In fact, such activities should be encouraged in schools as part of the education process. We are of the view that the grounds of appeal are two long and they contain arguments and narratives which should not be there. We are fortified by Order X Rule 9 (2) of the Court of Appeal Rules, 2016 which provides: "9 (2) A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the judgment appealed against, shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively. " (words in bold for court's emphasis only) -J13- We have in the interests of justice entertained the appeal on a defective memorandum of appeal. However, we take this opportunity to warn litigants acting in person as well as advocates to comply with the rules of court to avoid delaying appeals due to amendments of documents or having them dismissed for irregularity. The appellant's heads of argument were filed on 28th February, 2018 while the respondent's heads of argument were filed on 26 th March, 2018. On the hearing of the appeal, both advocates only relied on their heads of argument. The arguments made on behalf of the appellant are as follows: On the first ground of appeal; The approved development plan for plot No. 128 Chandamali clearly shows that the fish ponds are within the boundaries of the appellant's plot. The failure by the court below to recognise that development plan was detrimental, unjust and unreasonable as the authenticity of the plan was not in dispute. Arguments in support of the 2 nd ground are that the court below misdirected itself in law and fact when it failed to recognise the failure by the respondent to comply with the provisions of the Town and Country Planning Act Section 16 A (3) to include the plan of the -J14- local or private developer in the local plan prepared by the planning authority for submission to th e Director. Th at the respond ent prepared a proposed development plan in 20 14 for the same area, but did n ot include t h e existing ap pellant's development p lan which was approved in 20 13. Cou nsel u rged us to set aside the judgment of the lower court on th e basis of the case of Nkhata and 4 others v . The Attorney General ( l l where it was stated that findings that are perverse based on a misinterpretation of the evidence can be set aside by an appellate Court. As regards the third ground , the appellant's advocate Mr. Hamakando argued that the cou rt below erred when it failed to recognis e the failure by the respondent to publicise its 2014 proposed developmen t plan as r equired u n d er Section 19 (2) of the Town and Country Planning Act which states that: "When a stntcture plan or local plan is submitted to the Minister or Director, the planning authority shall give public notice that the stntcture plan or local plan is open for inspection at such places as shall be notified as aforesaid." Subsection 3 of Section 19 provides: -J15- "The notice referred to in subsection 2 shall call upon any interested person who desires to make any representation in connection with or objection to the structure plan or local plan to do so to the Minister or Director ..... .. " That the respondent directly breached the law by failing to publicise its proposed development plan in 2014 for public scrutiny. This action denied the appellant his legal right to submit objections to the proposed 2014 development plan. Mr. Hamakando argued grounds 4 and 5 together thus: The fish ponds are not constructed outside the boundaries of the appellant's approved development plan. The appellant submitted his plan before the respondent prepared its own plan. That the pieces of land which the appellant bou gh t from various people were consolidated into one development plan numbered 128 Chandamali by the respondent which was approved. It was therefore a misdirection to hold that the respondent had left a vacant area because there was no development plan which the respondent would have referred to at the time. -J16- Further arguments were that the respondent did not adduce any evidence to prove that the appellant's fish ponds encroached on the other plots created by the respondent in 2014. On ground six, Mr. Hamakando argued that the court below erred in law when it held that the appellant created his own misfortune and hence must suffer the consequences of his action. Counsel called in aid Section 27 ( 1) and (2) of the Town and Country Planning Act which provide as follows: "27 (1) The Power to grant permission to develop or subdivide land under this part shall include power to grant permission fo r retention on land of any buildings or works constructed or carried out there on or before the date of such application or for continuance of any use of land instituted before that date (whether without permission so granted or a limited period only) and reference in this development of land and applications fo r such permission shall be constructed accordingly." "27 (2) Any such permission as mentioned in Subsection l may be granted so as to take effect from the day on which the -J17- bui ldings or works were constructed or carried out, or the use was instituted or from the expiration of the said period, as the case may be. " In light of the foregoing, counsel stated that failure by the appellant to apply for planning permission does not warrant losing property because it can be cured by formalizing . He finally prayed that the appeal be allowed and the lower court's judgment be quashed. In his heads of argument, learned counsel for the respondent i.e. Mr. Nhari submitted that the lower court did not misdirect itself in law and fact by holding that the construction of the fish ponds by the appellant was without the authority of the respondent. That Section 22 of the Town and Country Planning Act vests authority in the respondent to approve structure plans or local plans in areas that are within a distance of twenty miles from the boundaries of Choma Central Bu siness. There is uncontroverted evidence that the appellant's land is within that area. Therefore, the construction of t h e fish ponds was illegal for lack of planning authority. That the development plan of 20 12 which the appellant alleges was ignored by the lower court does not show the construction of fish ponds as part -J18- of the school plan. On this premise, the appellant cannot rely on the said development plan as authorisation for the construction of the fish ponds. In response to grounds two and three, Miss Puta submitted that the evidence before the learned Town and Country Tribunal, which the appellant did not dispute was that in 2010 the respondent prepared a local plan for Mukasa area encompassing the appellant's plot identified as plot 5805. However, that plan was not submitted to the Ministry of Lands for approval. In 2014 the respondent prepared another local plan which did not in any way reduce or enlarge the appellant's plot. The 2014 plan was brought in for submission to the Ministry of Lands for approval so that developers could be given permanent plot numbers for purposes of obtaining title deeds. The plots in Mukasa were given numbers starting with 58 and the appellant's plot was numbered 5805. The fish ponds affected five plots numbered 5841, 5842, 5847 and 5849. Miss Puta further submitted that there was unchallenged evidence before the tribunal to the effect that the appellant and other developers were sensitized about the new numbers and the need to -J19- regularise them. The appellant in his evidence before the Tribunal confirmed that he was aware of the 2014 local plan but made no objections to it. On this premise, the respondent did not in any way breach Section 19 of the Town and Country Planning Act and the 2°d and 3 rd ground of appeal should fail. In opposing grounds 4, 5 and 6 Miss Puta argued that the evidence before the tribunal clearly established that the appellant did not obtain the required permission from the respondent to construct the fish ponds in dispute. Furthermore, the appellant's development plan of 2012 did not include the construction of the fish ponds. Therefore, the appellant cannot rely on it as authority for the construction of the fish ponds. That there is no law which provides that failure by a party to apply for planning p ermission is curable. Even if there was such a law, it would not apply to structures built outside the boundaries of ones registered property. Additionally, that although schools may not require the council's authority to undertake production unit activities, fish farming is agricultural in nature and cannot be carried out in a residential area without authority. The lower court was therefore on firm ground -J20- when it found that the appellant neglected to obtain planning authority for the constructions of fish ponds at his own peril. Miss Puta finally prayed that the appeal be dismissed with costs. We have carefully considered the record of appeal and the arguments made in writing by both advocates. We shall consider the 1st, 2 nd and 3 rd grounds of appeal together because they are interconnected. Our views on these issues are as follows: We have scrutinised the appellant's development p lan approved on 8 th December, 2012 on pages 30 to 34 of the record of appeal and we are satisfied that it does not include the construction of the fish ponds. However, a production unit was part of the plan. Not every production unit includes fish ponds for breeding fish. Therefore, the appellant required the respondent's authority to construct fish ponds on his land. We are fortified by Section 22 of the Town and Country Planning Act which provides as follows: "(l) Subject to the provisions of this section and to the following provisions of this Act, permission shall be required under this part for any development or subdivision of the land that is carried out after the appointed day. -J21- (4) In this Act, "development" means the carrying out of any building, rebuilding or operations on or under land, or the making of any material changes in the use of land or building but shall not include: - (g) the use of any land for the purpose of mining or agriculture, including the erection and use of buildings for such mining or agricultural purposes, but excluding the sitting of buildings within nine hundred and fifteen metres from the centre line of any road or proposed road." Our interpretation of the foregoing provisions of the law is that the councils or planning authorities are empowered to authorise any development or subdivision of land that is to be carried out after the appointed day (the date on which the Act came into effect). The provisions of this part of the Act apply only to the areas specified under Section 22 (2) a - d. Permission is not r equired for development that is excluded under Section 22(4) a to K. In this case, the appellant had the fish ponds constructed for pisciculture or aquaculture and not agriculture. Aquaculture or fish -J22- farming does not fall under the exempted developments. Therefore planning permission is required for such development. We note that the December, 2012 development plan does not show that a number of plots were consolidated. Although the lower court did not discuss the development plan of December, 2012, we believe that if it had, it would have come up with the same verdict as we have. We have read Section 16 A (3) of the Act which provides: "Where the local authority approves the detailed plans of a private developer under subsection (4), they shall be included in the local plan for submission to the Direct or. " As rightly pointed out by the re spondent's advocate, the undisputed evidence before the Town and Country Planning Tribunal was that the respondent had planned the area in dispute in 2010 but had not submitted the development plan to the Ministry of Lands for approval. In 2012, when the appellant presented his development plan for approval, there was already an unapproved development plan. In 2014, the respondent h a d to prepare another plan for -J23- submission to the Ministry of lands. The respondent's plan of 2014 included the appellant's plan for his plot which was described as plot 5805. Therefore, there was no breach of Section 16 A (3) of the Act. Section 19(2) of the Act provides: "When a stntcture plan or local plan is submitted to the Minister or Director, the planning authority shall give public notice that the stntcture plan or local plan is open for inspection at such places as shall be notified as aforesaid. " It is unclear whether the proposed local plan of 2014 was submitted to the Minister and approved, the evidence given by the appellant to the tribunal was that he was aware of the 2014 Council local plan but did not raise any objection to it. Furthermore, the plots which the respondent claimed as its own were plots 5841 to 5849 which according to them were not acquired by the appellant with their approval. An approved development plan is not the equivalent of consent to assign. If the procedure for conveyance was followed, the appellant should have been offered plots 5841 - 5849 by the respondent or the Commissioner of Lands. -J24- . . It is therefore our considered view that the appellant was not prejudiced by the non- publication of the local plan of 2014 by the respondent because his own piece of land has remained intact. The appellant had an opportunity to prove before the Tribunal and the lower court that he was the rightful owner of the other plots described as 5841 to 5849 but failed. The 4 th , 5 t h and 6 th grounds of appeal will also be considered together because they are interrelated. It is clear from the record that the tribunal had visited the subject property together with the witnesses for both sides who gave evidence there. The respondent's witness, Killian Malarnbo, a physical Planner, measured the premises and showed the tribunal the dimensions of the land that the appellant legally owns. It was established that the fish ponds were constructed on land that the respondent meant to leave open. That land was outside the appellant's plot. The tribunal rightly so found and so did the lower court. Concerning lack of perm1ss1on to construct the fish ponds, the position we take is that the appellant acted illegally by constructing -J25- t • the fish ponds outside the boundaries of his plot. He had no locus standi to even apply for permission to construct the fish ponds there. For the foregoing reasons, we find no merit in this appeal. It is therefore dismissed with costs which may be agreed upon or taxed. C. K. MAKUNGU COURT OF APPEAL JUDGE ... ~ -.... ':-;;; ............ . .::, M. M. KONDOLO, SC COURT OF APPEAL JUDGE ............... . ................... . M. J. SIAVWAPA COURT OF APPEAL JUDGE -J26-