Lumana Mining Company Limited v Richard Kamboyi and Boyd Chavuma (APP/89/2022) [2024] ZMCA 16 (19 March 2024)

IN THE COURT OF APPEAL OF ZAMBIA APP/89/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AND RICHARD KAMBOYI BOYD CHAVUMA IL l~t. GIST 50067. L APPELLANT 1 sT RESPONDENT 2 ND RESPONDENT CORAM : Mchenga DJP, Muzenga and Chembe, JJA ON: 16 th January 2024 and 19th March 2024 For the appellant: K. Phiri, Corpus Legal Practitioners For the Respondents: M. M. Mwachilenga , James and Doris Legal Practitioners JUDGMENT Mchenga DJP, delivered the judgment of the court . Cases Referred to : 1 . B . J . Poultry Farms Limited v. Nutri Feeds Zambia Limited , SCZ Judgment No . 3 of 2016 2. J . Z . Car Hire Limited v . Malvin Chala and Scirocco J2 Enterprises Limited , SCZ Judgment No . 26 of 2002 3 . Wilson Masauso Zulu v . Avondale Housing Project Limited [198] Z . R . 172 4 . Attorney General v . Ndlobvu [1968] Z . R . 12 5 . Nkhata and 4 Others v . Attorney General [1966] Z . R . 6 . Anderson Kambela Mazoka , Lt . General Christon Sifapi Tembo , Godfrey Kenneth Miyanda v . Levy Patrick Mwanawasa , The Electoral Commission of Zambia , The Attorney General [2005] Z . R . 138 7 . London Passenger Transport Board v . Moscrop [1942] A. C . 332 . 8 . Alick Hangili v . Rose Amon Numa and Lenny Makungu, CAZ Appeal No . 214 of 2019 9 . AMG Global Trust Ltd v . The Administrator General and Another , CAZ Appeal No . 25 of 2020 10 . Smith Sawila v . Attorney General and Christine Banda , SCZ Appeal No . 1 of 2019 11 . Sithole v . The State Lotteries Board of Zambia [1975] Z . R. 106 Legislation referred to: l . The Rules of the Supreme Court of England 1999 Edition . 2 . The Lands and Deeds Registry Act , Chapter 185 of the Laws of Zambia . 3 . The Lands Act , Chapter 184 of the Laws of Zambia J3 INTRODUCTION c11 This appeal emanates from the j udgment of the High Court (Pengele , J . ) , delivered on 8 th June 2021 . c21 The appellant , who was defendant in the court be l ow , has appealed against that judgment. C3J The respondents , who were plaintiffs in the court below , have equally filed a cross - appeal . CASE BEFORE THE TRIAL COURT C4J Prior to the consolidation of their cases , the respondents , on 4 th June 2018 , by writ of summons , sought damages against the appellant for the demol i tion of their houses . cs1 The 1 st respondent also claimed for an order that the appellant pay him the sum of K250 , 000 . 00 , he spent purchasing the property on which he constructed his house , while the 2:1ct respondent claimed for an order that the appellant pay him the sum of K225 , 000.00 , he spent purchasing the property on which he constructed his house . J4 (61 Both respondents also claimed for orders that the appellant refunds each of them monthly rentals in the sum of K2000 . 00 , from the date of demolition of their houses , to the date of full and final payment ; punitive damages ; interest on all amounts found due ; costs of and incidental to the action and any other relief . c11 In their defence , the appellant contended that both respondents built their houses on land that belonged to the appellant , without the appellant ' s consent . cs1 That being the case , they were squatters and the appellant had every right to evict them and demolish the structures . C9J The appellant admitted demolishing the structures built by the respondents after having given them notice to vacate and ample time to find alternative accommodation . EVIDENCE BEFORE THE TRIAL JUDGE c101 The respondents led evidence that they individually owned pieces of land under customary tenure , which were JS situated at the T5 - R5 junction , along Solwezi Mwinilunga Road . [111 During the course of that ownership , they both built houses and occupied them with their families . [121 The appellant also owned customary land surrounding the areas of the properties . c131 At some point , the appellant converted its customary land to leasehold tenure and was accordingly is sued with a certificate of title on 19 th May 2009 . [14J Sometime in April 2012 , the appellant gave the respondents notice to vacate their houses on the ground that they were in occupation of land which it owned . However , the respondents just ignored the notices and continued living in their houses . c1s1 The respondents received additional notices to vacate by 9 t h June 2012 . They were also warned that they would face criminal prosecution if they did not adhere to the notices . J6 c16J Following that warning , they both vacated their properties and their respective houses were demolished by the appellant. r111 From sometime in June 2012 , the respondents have individually been paying rent in the sum of K2000. 00 per month. r1a1 At trial , the appellant disputed having demolished the respondent ' s houses and endeavored to produce evidence to the effect that it was actually the respondents who had demolished their own houses . c191 A witness called by the appellant produced Grievance Acknowledgment reports , which . indicated that the respondents demolished their own houses. FINDINGS OF FACT r 20 1 The trial Judge considered the evidence relating to the Grievance Acknowledgment reports . He found that they were prepared by the appellant and not the respondents . J7 c211 He also noted that the appellant unequivocally admitted in their defence that they had demolished the houses which were built by the respondents . c221 He found that the respondents had proved that it was the appellant who demolished their houses . c231 As regards the issue of whether or not the said demolition was wrongful, the trial Judge found that the respondents owned the pieces of ·1and in dispute under customary land tenure . c241 He found that the respondents were in occupation of the said land , even before the appellant started the process of converting their customary land tenure into leasehold tenure . c2s1 The trial Judge also found that appellant failed to comply with Section 3 (4) (c) of the Lands Act , prior to converting their ~ustomary tenure to leasehcld . This is because they did not consult the respondents whose rights were likely to be affected by the decision to convert. JS [26J Consequently , he found that the demolition of the respondents ' houses was wrongful and that they were entitled to damages. [27J Additiona l ly , he found that they were entitled to a refund of the money they expended to constru~t the ir houses . Since there was no evidence before him to enable him properly determine the values of the demolished houses , he referred the issue for assessment . [201 The trial Judge also found that the respondents were entitled to be refunded the monthly rentals incurred after their houses were demolished. He equally referred the issue to assessment . c29J He also awarded the respondents interest on the amounts which were payable . c301 Finally, the trial Judge noted that the respondents did not claim for the restoration of their respective pieces of land . Consequently , he restricted his awards to only the reliefs that were sought in the writ . APPELLANT'S GROUNDS OF APPEAL J9 c311 Dissatisfied with the outcome of the trial , the appellant has advanced two grounds in support of their appeal . c321 The first ground of appeal is that the trial Judge erred when he found that the respondents had , on a balance of probabilities , proved that the appellant had demolished their houses despite there being evidence that the respondents had in fact , demo l ished their own houses . C33J The second ground of appeal is that the trial Judge erred when he found that the respondents were entitled to money expended in constructing their houses and reimbursement of monthly rentals , despite there being no evidence that the respondents constructed the said houses and there being evidence that the respondents demolished their own houses . APPELLANT ' S ARGUMENTS IN SUPPORT OF THE APPEAL JlO C34J The core argument in support of both grounds of appeal are that the respondents failed to prove their claims on a balance of probabilities . t3SJ Reference was made to the cases including B . J . Poultry Farms Limited v. Nutri Feeds Zambia Limited1 and J . Z. Car Hire Limited v. Malvin Cha la and Scirocco Enterprises Limi ted2 , and it was submitted that the respondents failed to lead evidence proving that the appellant demolished their houses . The only evidence on the issue were statements produced by the appellant that proved that the respondents demolished their own houses . t36J Our attention was also brought to the elusive nature of the 1 st appellant ' s testimony . It was then argued that properly assessed , the trial Judge should have found that it affected the credibility of his evidence . t37J On the basis of the decision in Wilson Masauso Zulu v . Avondale Housing Project Li mited3 , we were urged to set aside the finding by the trial Judge that it was Jll the appellant who demolished the respondents ' houses because it was perverse, as it was not supported by the evidence . RESPONDENTS'ARGUMENTS IN RESPONSE c3e1 It was submitted on behalf of the respondents that on the evidence before him , the trial Judge was entitled to come to the conclusion that it was the appellant who demolished the respondents ' houses . C39J Reference was also made to Order 27 rules 1 , 2 and 3, and Order 19 rule 13 sub-rule 3 of the Rules of the Supreme Court of England, and it was submitted that where there are express admissions by a party , that issue is no longer in controversy . c401 It was submitted that the appellant having admitted to demolishing the respondents ' houses in their defence , there was no need for the respondents to lead evidence on the issue . c411 It was also submitted that the appellant has not established any grounds upon which this court can upset the trial Judge ' s finding of fact . It was pointed out J12 that the threshold for such a decision , as was set out in cases including the Attorney General v. Ndlobvu4 and Nkhata and 4 Others v Attorney General 5 , have not been met . COURT'S CONSIDERATION AND DECISION ON THE APPEAL C42J Order 18 Rule 7 (3) of the Rules of the Supreme Court of England, provi des that : " ... Pleadings play an essential part in civil actions, and their primary purpose is to define the issues and thereby to inform the parties in advance of the case which they have to meet, enabling them to take steps to deal with i t ; and such primary purpose remains and can still prove of vital importance , and therefore i t is bad law and bad practice to shrug off a criticism as a " mere pleading point. " C43 J I n the case o f Anderson Kambela Mazoka, Lt. General Christon Sifapi Tembo, Godfrey Kenneth Miyanda v. Levy Patrick Mwanawasa, The Electoral Commission of Zambia, The Attorney General 6 , it was held that : " The function of pleadings , is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties . Once the pleadings have been closed, the parties are J13 bound by their pleadings and the court has to take them as such." [441 Additionally , in the case of London Passenger Transport Board v. Moscrop 7 , it was sta ted that : " ... Any departure from the cause of action alleged , or the relief claimed in the pleadings should be preceded , or at all events, accompanied , by the relevant amendments, so that the exact cause of action alleged and relief claimed shall form part of the Court's record , and be capable of being referred to thereafter should necessity arise . Pleadings should not be ' deemed to be amended' or 'treated as amended .' They should be amended in fact ." C4SJ The appellant , in their defence , explicitly admitted to have demoli shed the houses which were built by the respondents . That position was not changed or revisited by any amendment to the defence prior to the commencement of the trial . [461 This being the case , the appellant was bound by its defence from the moment that the pleadings were closed . c411 The appellant having admitted demolishing the respondents ' houses , that issue was no longer in controversy and there was no need for the respondents to lead evidence proving it . J14 C4BJ We note that despite the admission , the appellant led evidence in the form of Grievance Acknowledgment reports , that suggested that the respondents may have demolished their own houses . C49J The trial Judge considered that evidence and found that the reports did not prove that the respondents demolished their own houses because the reports were prepared by the appellant ' s own agents . cso1 In the circumstances of this case , we find that the trial Judge was perfectly entitled to come to that conclusion . cs11 We find no reason for reversing that finding as it hinged on the credibility of that evidence , and in our view was not perverse . [s2i However , as pointed out earlier on , the appellant having admitted demolishing the respondents ' houses in their defence , the issue was in the circumstances not in dispute . cs3J Consequently , we find no merit in the appeal and we dismiss it . RESPONDENTS CROSS APPEAL JlS [54J The respondents ' cross -appeal has two grounds . [55J The f i rst ground is t hat having found that the appellant failed to comply with Section 3(4) (c) of the Lands Act, when obtaining the certificate of title , the trial Judge erred when he failed to order the cancellation of that certificate of titl e . [56J The second ground of appeal is that the trial Judge erred when he failed to order that the appellant ' s certificate of title be rectified to remove the portions of land owned by the respondents . ARGUMENTS IN SUPPORT OF THE CROSS APPEAL [57J In support of their appeal , it was argued that the tria l Judge hav ing found that the respondents were no t consulted as required by Section 3(4) (c) of the Lands Act, he ought to have ordered the cancellation of the appellant ' s certificate of title because it was illegally or improperly acquired . c5sJ The cases of Alick Hangili v . Rose Amon Numa and Lenny Makungu 8 and AMG Global Trust Ltd v . The Administrator J16 General and Another 9 , were referred to in support of the proposition. ARGUMENTS IN RESPONSE TO THE CROSS APPEAL cs91 In response to the two grounds of the cross appeal , the appellant argued that according to Section 34 of the Lands and Deeds Registry Act, a certificate of title can only be cancelled where a party specifically pleads cancellation and proves that it was fraudulently or improperly acquired . c6oJ In this case , fraud was not pleaded and neither was evidence of fraud or impropriety , warranting the cancellation of the certificate of title , led . c611 Cases including Smith Sawila v. Attorney General and Christine Banda10 and Si thole v . The State Lotteries Board of Zambia11 , were referred to in support of the proposition. • J17 CONSIDERATIONS OF AND DECISION ON CROSS APPEAL c621 The issues raised in the two grounds of appeal are interrelated and we will therefore consider them at the same time . [ 63] From the pleadings , it is apparent that the respondents did not seek that the High Court cancels the appellant ' s certificate of title on the grounds of impropriety in the manner it was obtained . C6 4J Further , neither did the respondents seek an order from the High Court that their respective pieces of land be ceded from the appellant ' s land . c6s J Order 18 Rule 8 (1) of The Rules of the Supreme Court, provides as follows : " ( 1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example , performance , release, the expiry of any relevant period of limitation, fraud or any fact showing illegality- (a) which he alleges makes any claim or defence of the opposite party not maintainable ; or (b) which , if not specifically pleaded, might take the opposite party by surprise ; or (c) which raises issues of fact not arising out of the preceding pleading . " J18 [ 66J Having considered the decisions in the cases of Alick Hangili v. Rose Amon Numa and Lenny Makungu8 and AMG Global Trust Ltd. v . The Administrator General and Another 9 , it is our view that the respondents cannot at this point begin to canvass new reliefs . c611 If these reliefs were sought , it ought to have been clear from the beginning and they would accordingly have been adjudicated upon . C6BJ After everything has been considered , the trial Judge cannot be faulted for restricting his awards to the specific claims that were made by the respondents . C69J In his j udgment , the trial Judge made the following observation: "The Plaintiffs have not made any claims for the respective pieces of land to be restored to them. It appears from their claims that their main interests are compensation for the demolished houses, damages for the wrongful demolitions and reimbursement of rentals expended after demolition . Having awarded the foregoing claims to the Plaintiffs, I hold that sufficient justice has been done to the Plaintiffs ." c101 We find no basis on which this decision can be assailed . J19 c111 It follows , that we equally find that the cross appeal is devoid of merit and we dismiss it . VERDICT c12 1 We find no merits in both the appeal and the cross appeal and we dismiss them . c131 Both the appeal and the cross appeal having fai l ed , we make no order as to costs before this court . C. F. R. Mclie DEPUTY JUDGE PRESI ENT