Rephidim Institute Ltd v Attorney General (APPEAL NO. 256 OF 2020) [2023] ZMCA 159 (8 June 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 256 OF 2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN REPHIDIM INSTITUTE LIMITED AND ATTORNEY GENERAL RESPONDENT CORAM: SIAVWAPA JP, CHASHI AND BANDA-BOBO, JJA ON: 11u, October 2022, 1sr11 January and 8 th June 2023 For the Appellant: W. Simutende, Messrs. TMB Advocates For the Respondent: Col. H. Chidakwa, Principal State Advocate, Lt V. Hamusiya State Advocate and C. Mllyakwa (Ms), State Advocate, Attorney General Chambers JUDGMENT CHASHI JA, delivered the Judgment of the Court. ~ases referred to: 1. David Nzooma Lumanyendo and Goodwins Kafuko Muzumbwa v Chief Chamuka and Kabwe Rural District Council and Zambia Consolidated Copper Mines Limited (1998 - 1989) ZR, 194 .. -,. J)- 2. Zambia Telecommunications Company Limited v Valson Pharma Zambia Limited - SCZ Judgment No. 3 of 2010 3. Nkhata & Others v Attorney General {1966) ZR, 124 4. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR, 172 5. Mwenya and Randee v Kapinga (1998) ZR, 17 6. Hunt v Luck ( 1902) 1 Ch. D 7. Nawakwi v Lusaka City Council and Another - SCZ Appeal No. 26 of 2001 8. Nora Mwaanga kayoba and Alizani Banda v Eunice Kumwenda Ngulube and Andrew Ngulube - SCZ Appeal No. 35 of2001 (SCZ 19 of2003) Legislation referred to: l. The Constitution of Zambia, Chapter 1 of the Laws of Zambia 2. The Lands Acquisition Act, Chapter 189 of the Laws of Zambia Rules referred to: 1. The Supreme Court Practice (The White Book) 1999 Other works referr~d ~o:. l. Black's Law Dictionary, Eighth Edition 2. Howarth William, Land law {Nutshell), 1994, Third Edition, London: Sweet and Maxwell -J3- 1.0 INTRODUCTION 1. 1 This is an appeal against the Judgment of Honourable Mrs Justice S. Kaunda Newa, delivered on 3 rd February 2020, in which she dismissed all the claims bv the Plaintiff, now - the Appellant. 2.0 BACKGROUND 2. 1 On 15th May 2018, the Appellant commenced an action against the Respondent by way of writ of summons, claiming the following reliefs: (i) An Order directing the Respondent to compensate the Appellant for the current commercial value of the agreed portion of land comprising 72 hectares of Farm 690 Lusaka. (ii) Mesne profits for the period the Zambia National Service has occupied the Appellant's property. (iii) Special damages for the sketch plan, valuation report and survey diagrams secured by the Appellant. 2.2 According to the attendant statement of claim, the Appellant is the registered legal owner of Farm No. 690 -J4- Lusaka as evidenced by certificate of title No. 218409. That in the l 980's the Zambia National Service (ZNS) moved on to the Appellant's portion of land, approximately 66 hectares and put up a camp to maintain the country's security. 2.3 It was averred that ZNS constructed permanent structures on the land without paying any rentals nor contributing to payment of ground rates. That despite being engaged vide letters and meetings to discuss the possibility of ZNS purchasing that portion of land and despite the Appellant, at the request of the Appellant, obtaining site plans, survey diagrams and a valuation report for 72 hectares at the value of Kl ,600,000 (rebased), the Respondent has refused, despite their continued occupation. 2.4 In its defence filed on 3rd August 2018, the Respondent averred that the government acquired part of Farm 690 Lusaka West from Lendor Burton and established it as ZNS builders brigade. That they already had an established presence, at the time the Appellant acquired its certificate of title. 2.:) According to the Respondent, the ;\ppellant has since 2007 been attempting to sell government its own land, as the interest of government subsisted before the Appellant acquired the certificate of title. Further that. when the Appellant acquired the land, it knew of the existence of the n1ilitary unit. 2 . 6 At the trial, the Appellant ca lied one w1tne s s. 1v1 axwe 11 Mulondiwa (PW 1), the rnajority shareholder who reiterated the averments in the statement of claim and added that the Appellant bought the Farm from Lendor I3urton in 1990 which land was in excess of 1900 hectares. That at the ti1ne of buying, the Appellant was informed of the existence of a refugee camp and ZNS who were there temporarily during the state of emergence for security purposes because of the rebels' incursions. It was his testimony that Zf'.:S did not register its interest in the land. 2.7 Further, that al a meeting held on 23 1 '- July, 2015, Zl\S expressed regret for the delay 1n concluding the transaction and were ready to proceed. A ne\v valuation of the portion of land was carried out and valued at • -,16- h:7,948,800.00. In addition, Z:. JS requested that tl1e Appellant put the portion of land occupied by it on title, which was done. 2 .8 The Respondents called two witnesses. D\V 1, a former Zainbia Anny l~egional Con1n1ander, testified that tl1e ZNS catnp was established in 197S and ii had several structures on it. That was confirmed by D\V2 who once served as Officer Con1tnander at the can1p. 3.0 DECISION OF THE COURT BELOW ::l. l After considering the evidence and the submissions by the parties, the learned ,h.1dge 1nade a finding tha r, it was clear from the evidence that the Appellant was aware of the presence ofZNS on the land at the tin1e of buying the land. That it. however, did nor 1nake any enquiries fro111 ZNS to establish whet.her ii had any righr.s lo the land before buying the san1c. Tl1at ,he Appellant therefore had act.1al notice of the presence of ZNS which affected ir.s right lo the land. 3 .2 Fu nher that, tl1e n1cmorials on the certificate of title shows tl1at r.he lease was first issued to 13arend ,Jacobus Vorster -J7- 111 194 7 for 4 790 acres, whicl1 translates to 1938 .44 hectares. That the Appellant obtained a certificate of title to its land on 17101 ,June 2017 for 70 .82' hectares, the land having been surveyed in July 2016. That the said land is subdivision A20 of Fann 690 Lusaka, entailing that the original Fann was subdivided. That the Appellant did not therefore have title to the entire Fann 690. 3.3 Furthcrrnore, that the Appellant had not produced a contract of sale to show the extent of land it had purchased frorn Lendor BLLrlon; nor to show how rnuch land Lendor Burton had acquired fr01n I3arend Jacobus Vorster. 3.4 The learned Judge opined that ZNS was possibly 111 possession of between 66.24 to 72 hectares which land 1nay not be owned by the Appellant. That in the absence of the land register showing the transactions, it would be speculative to find that the State con1pLLisorily acquired the land or ,,.,-hat extent of land was sold to the Appellant by Lendor Burton. 3.5 According to the learned Judge, the Appellant may have labored under a 1nistaken belief that Lendor I3urton sold -J8- it the entire Farm 690, as it only has title to subdivision A20 of Farm 690. That therefore the Appellant had not proved on a balance of probabilities that it is entitled to be com pen sated for the land. The claim for mesne profits \l\las also consequentially dismissed. 4.0 THE APPEAL 4.1 Dissatisfied with the ,Judgment, the Appellant has appealed to this Court advancing three grounds as follows: 1. The court below gravely erred both in law and fact when it made perverse findings of fact in the absence of any relevant evidence on the court record that the portion of land in extent 72 hectares illegally and arbitrary occupied by the Respondent did not belong to the Appellant or at all contrary to the unchallenged and undisputed evidence on the court record to the effect that the said portion of the land belonged to the Appellant. 2. The court below gravely erred in both law and fact when it failed to find that the Respondent has -J9- illegally and arbitrary occupied the Appellants portion of the land, despite overwhelming unchallenged and undisputed documentary evidence and admission to the Respondent. 3. The court below erred in both law and fact when it failed to award the Appellant compensation for the illegal and arbitrary occupation of the Appellants portion of the land by the Respondent. 5.0 ARGUMENTS BY THE APPELLANT 5.1 Mr. Simutende, Counsel for the Appellant relied on the filed heads of argument dated 14th December, 2020. Counsel argued grounds one and two together, attacking the findings of fact and alleging that they were perverse and not supported by evidence. Further that the evidence by the Appellant was unchallenged and not rebutted and also that there was an admission on the part of the Respondent. Counsel referred to the cases of David Nzooma Lumanyendo and Goodwins Kafuko Muzumbwa v Chief Chamuka and Kabwe Rural District Council and Zambia Consolidated Copper Mines ,Jl0- Limited1 and Zambia Telecommunications Company Limited v Valson Pharma Zambia Limited2 for the position that there can be no adverse possession of land that is subject of a certificate of title. Further that, the Respondent. cannot claim an int.crest in land by virtue of occupancy to the detriment of the Appellant who is the rightful owner ·with t.it\e to t.he property. Relying on the cases of Nkhata & Others v Attorney General3 and Wilson Masauso Zulu v Avondale Housing Project Limited4 , we were urged t.o reverse the findings of fact. by the lower court. 5.2 As regards ground three, it was argued that being the owner of the land ,l\lhich was illegally and arbitrary occupied by the Respondent., the Appellant is by law ent.it.led to compensation. The Appellant relied on Article 16 of The Constitution and Sections 5 and 10 of The Land Acquisition Act. 6.0 ARGUMENTS IN RESPONSE 6.1 Col. Chidakwa, Counsel for the Respondent relied on the filed heads of argument which he augmented with brief -J 11- oral submissions. In responding to grounds one and two, it was submitted that the findings of fact by the court cannot be faulted. That there was nothing more to support the Appellants testimony; for example, a tenancy agreement or a contract of sale to prove that the Appellant was a bona fide purchaser for value without notice of the entire land. That the evidence available on record proved that the Appellant had actual notice of the government's presence when it bought the land from Lendor Burton, thus the title obtained is subject to the interest of the Respondent. In support thereof the cases of Mwenya and Randee v Kapinga5 , Hunt v Luck6 and Nawakwi v Lusaka City Council and Another7 were cited. 6.2 As regards the third ground, it was argued that having not proved ownership, it would not be logical for the court to order compensation. That this is not an appropriate case justifying the interference with the findings of the lower court. 7 .0 ANALYSIS AND DECISION OF THE COURT 7.1 \Ve have considered the evidence un record, sub111issiuns by Co11nsel for both Parties and the impugned Judgn1ent. In our view, the issue falling for determination is whet.her the portion of land that is c11rrently occupied by ZNS belongs to the Appellant. fft.he answer is in the affinnative, whether the said land ,-vas p11rchased subject to the interest of ZNS. 7 .2 The :earned .fudge 1n the court below found that. the Appellant failed to prove its case on a balance of probability that the portion of land which ZNS was occupying belonged to it. This finding was based on the fact that the Appellant failed t.o adduce evidence on how the land was acquired from Lendor I3urtun ;ind t.he extent of the said land. The Appellant alsu did not produce a land register t.o show how the land devolved and also failed tu show that the entire Fann 690 belonged to it. 7.3 According tu the learned ,Judge, the only evidence shown was a cenificate of title which relates to subdivision ,\20 of Farn1 No. 690 LLLSaka in exr.ent 70.85 hect.ares. That all -J13- this proved was that the original farm was subdivided and that in the absence of a certificate of title for the whole land, the Appellant may have labored under the mistaken belief that Lendor Burton sold it the whole land as it only had title to the subdivision A20 of Farm 690. 7.4 When we first heard this appeal in October, 2022, we observed that the land in issue had a complex history and in order for us to have a clearer perspective of the issues surrounding it, we felt it prudent to allow the parties to produce fresh evidence pursuant to Order 59 / I 0/ 11 of The Rules of the Supreme Court1 (RSC). We therefore, directed the Appellant to file into court the follo,iving documents: (a) Certificate of title No. 218409 relating to Farm No. 690 Lusaka. (b)Certificate of title relating to the remaining extent of Farm 690 Lusaka And the Respondent to file into court the following documents: (a) Lands Register relating to Farm No. 690 Lusaka (b)Lands Register relating to the remaining extent of Farm 690 Lusaka (c) A report from the Surveyor General, to confirm whether certificate of title. 33865 relating to subdivision A20 of Farm 690 Lusaka relates specifically to the portion of the Farm occupied by Zambia National Service. 7. 5 The above mentioned documents were duly filed into Court and upon examining the said documents, we observed that the court below was deprived of critical evidence, which if it had been made available, would not have decided the matter in the manner it did. 7.6 Among the documents produced was certificate of title No. L3216 in the name of the Appellant which relates to the entire Farm 690 obtained on 28th October 1997 in extent of 1,938 hectares. This lends credence to the Appellant's argument in the court below that it purchased the entire Farm 690 from Lendor Burton. 7.7 The Appellant also produced several certificates of title relating to the remaining extent of Farm 690 registered in -J15- the name of the Appellant, indicating that Farm 690 had undergone several subdivisions. The Appellant also produced a land register which clearly highlights how Farm 690 devolved from Lendor Burton to the Appellant and also details successive transactions with the land over the course of time. 7.8 In addition, the Respondent filed into court a Property Assessment Report dated 5 th December, 2022. The report revealed that subdivision A20 of Farm 690 is sitting in the same geographical location as ZNS. 7.9 Based on the above mentioned documents, there can be no doubt that the Appellant purchased the entire Farm 690 from Lender Burton, which includes the portion occupied by ZNS. It can safely be said that the decision of the learned Judge to the effect that the Appellant did not purchase the entire Farm 690 was made in the absence of relevant evidence. 7.10 Based on the case of Wilson Masauso Zulu v Avondale Housing Project Limited4, where it was held that an appellate court will only reverse findings of fact made by a • ..,J 16- trial COLLrt if it is satisfied that the fi:1dings in question were either perverse or rnade in the absence of any rele\·ant evide:1ce or upon a misapprehension of facts, we find this to be an appropriate case in which we can disturb the lower court's finding that the Appellant did not own the entire l•'arm 690 including the portion occupied hy ZNS. 7 .11 Having found that the Appellant is the registered O\l\,'ller of the portion of land occupied by Z:JS, the next issue to consider is whether the Appellant purchased the land subject to the interest of ZNS. 7.12 It is the primary contention of the Appellant that \l\lhen it pt.irchased the property, it was informed of the presence of 7. NS on the property, but that they \l\lCrc there only 0:.1 a temporary basis. The Appellant insisted that the Respondent had no registered interest in the land. The Respondent on the other hand, argues that ZNS had moved 0:1 the property sornetirne before the Appellant purchased the property and whe:.1 the AppeJant subsequently acquired the property, it had actual notice of the presence of ZNS on the land. That therefore, the .. • -,J 17- Appellant was not a bona fide purchaser for value without notice. 7.13 We have perused the evidence adduced in the court below and the Appellant through its witness, Maxwell Mulondiwa, in his evidence in chief at page 238 stated as follows: " ... When we were buying the property, we were told ZNS had come to maintain lau, and order. There u,as a refugee camp in the neighbourhood. In those days in the state of emergency, the rebel aero planes used to bomb the refugee camp. Over a period of time they put up structures within the place. It was difficult to con.test that because of the state of emergency. ZNS did not legally acquire portion of the land. ZNS did not register their interest on the property, T did a search at 1\llinistry of Lands I did not find anything as can be seen at page 23 of the Plaintiffs bundle of documents. Commissioner of lands on issuing title to us did not issue any conditions as regards ZNS .. , " • -,J 18- Further 1n cross examination, the witness slaled as follows: " ... I bought an existing fa.mi. There were people living there, beinq some squatters who had encroached. I found out what their inleresl in lhe land was including ZNS. I asked their presence on lhe land when I. Ve I.vere finalizing the agreement. They Iuere not specific. A r;ompany used to operate there called builders b,igade. \,Ve spoke initially. Ownership of land is proved through title. 1 was told that the squatters would move out soon. I spoke to ZNS afier we had concluded the sale." 7. 14 From the Appellant's own evidence. it is nol in dispute tl1at when the Appellant was acquiring lhe land. he had actual notice of the presence of ZNS on the land. lt is also not in dispute that the Appellant did not enquire from ZNS wl1at interest it had nol until lhe sale was finalized. The question that can be posed here is wl1ether tl1e Appellant was a bona fide purchaser for value without notice? -J19- 7 .15 Black's law Dictionary, 8 th Edition defines "bona fide purchaser" as: "One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims." 7.16 Further, in the case of Mwenya and Randee v Kapinga5 the Supreme Court upheld the principle in the case of Hunt v Luck6 that: " ... the occupation of land by a tenant affects a purchaser of land with constructive notice of all that tenant's rights including an agreement for sale to him by the vendor ... A tenant's occupation is notice of all the tenant's rights. It means that if a purchaser has notice that the vendor is not in possession of the property, he must make inquiries of the person in possession and find out -J20- from him what his rights are and if he does not choose to do that, then whatever title he acquires as purchaser will be subject to the title or rights of the tenant in possession." 7 .17 We do note that the above case was dealing with a tenant in possession of a house. However, we believe the principle equally applies to the present case as the Appellant knew at an early stage of the transaction that ZNS had established a presence on the land. Even at the point that ZNS began erecting structures on the land, the Appellant claimed that he did not contest it on account of the state of emergency. The Appellant further stated that when it later enquired from ZNS about its interest, they were not specific. In our view, this ought to have put the Appellant on high alert and triggered a serious inquiry for any encumbrances or red flags before proceeding with the sale. 7.18 In addition, the correspondence between the parties regarding the sale of the land produced by the Appellant dates back to only 2008, which is many years after the state of emergency and after ZNS had settled on the land. -J21- The evidence seems to suggest that the Appellant acquiesced to the presence of ZNS on the property. 7.19 It is trite law that land as valuable property calls for thorough investigations before purchase. Howarth William in his book, Land Law (Nutshells), 19941 , observed as follows: "A purchaser is under obligation to undertake full investigation of title before completing his purchase. He can only plead absence of notice if he made all usual and proper enquiries. If he does not do so, or is careless or negligent, he is deemed to have "constructive notice" of all matters he would have discovered. A person has constructive notice of allfacts of which he would have acquired actual notice had he made those inquiries and inspections which he ought reasonably to have made, the standard of prudence, being that of a man of business under similar circumstances. The purchaser should inspect the land and make inquiries as to -J22- anything which appears inconsistent with the title, offered by the vendor" 7.20 Further in the case of Nora Mwaanga Kayoba and Alizani Banda v Eunice Kumwenda Ngulube and Andrew Ngulube 9 the Supreme Court held that: "In purchasing real properties, parties are expected to approach such transactions with much more serious inquiries to establish whether or not the property in question has encumbrances. Buying real property is not as casual as buying household goods or other personal property." 7. 21 In the present case, the Appellant did not approach this transaction with the seriousness that it deserved. It is evident on record that the Appellant failed to conduct a thorough investigation to establish the status of ZNS on the land it was buying. Had it done so, it would have discovered whether the land was subject to vested rights in other persons other than the vendor. Failure to do so simply means that the equitable doctrine of notice will -J23- come into play which states that a purchaser is bound by any right which he would have discovered had he made ordinary investigations. 7.22 The Appellant failed to make inquiries of third persons who happened to be in possession of the land, as such, it is affected by all equitable interests held by them. The Appellant attempted to excuse his failure by alleging that it could not inquire because it was during a state of emergency. In our view, the fact that this transaction occurred during a state of emergency, is more reason why the Appellant should have been very diligent due to the uncertainty that characterizes a state of emergency. Based on the foregoing, the Appellant cannot be said to have been a bona fide purchaser for value without notice. 7.23 Our conclusion therefore, is that from the evidence adduced, the Appellant has failed to establish that the Respondent had no legal right to remain on the property. All three grounds of appeal fail. 7.24 We are aware that the Appellant obtained a certificate of title for the portion of land occupied by ZNS which appears -J24- at page 120 - 129 of the record on 16th June, 2017 for a total of 70.8588 hectares. However, in our view, there was impropriety on the part of the Appellant in the manner in which the certificate of title was obtained, in light of the fact that the land was still a contentious issue at the time the Appellant applied for the issuance of the same. We, therefore, Order the cancellation of the Appellant's Certificate of Title Ne(. 33865 by the Commissioner of Lands. 8.0 CONCLUSION 8.1 The appeal being unmeritorious, it is accordingly dismissed. Costs in this appeal and in the court below to be borne by the Appellant and to be restricted to out of pocket expenses. Same to be taxed in default of agreement. J M. J. SIAVWAPA JUDGE PRESIDENT J. ASHI COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE