Robert Musonda v Magaret Njovu and Anor (2016/HPC/0558) [2017] ZMHC 549 (14 August 2017)

IN THE HIGH COURT FOR ZAMBIA AT THE NDOLA DISTRICT REGISTRY 2017/HN/013 (Civil Jurisdiction) BETWEEN: ROBERT MUSONDA AND MARGARET NJOVU JANET (FEMALE) PLAINTIFF 1 ST DEFENDANT 2ND DEFENDANT BEFORE THE HONOURABLE MADAM CHAMBERS - JUSTICE M. C. MULANDA IN For the Plaintiff For the 1 st Defendant: Mr E. Sichone . L_egal Aid Board . Mrs ·Emelda M. Bupe National Legal Aid Clinic Women for For the 2nd Defendant: Janet (Female) in Person RULING ' ,.. CASES REFE RRED TO: 1. Shell a~d B. P. Vs Conidaris and Another (1975) Z. R. 175. 2. · ·communications Authority Vs Vodacom Limited (200) Z. R. 196. 3. London Blackwell Railway Company vs Cross (1886) 31D 354 at page 369. LEGISLATION REFERRED TO: High Court Rules, Cap. 27 of the Laws of Zambia, Order 27, Rule 1. WORKS REFERRED TO: 1. Halsbury's Laws of England, 4th Edition, Volume 24, paragraph 857. 2. Stuart Sime, A Practical Approach to Civil Procedure, Eighth Edition, Oxford University Press, page 355. This is an applicati~n by the Plaintiff for an interlocutory order of injunction. The application is accompanied by an affidavit in support, and a Further Affidavit in Support, both filed into court on 29th March, 2017. In his affidavit in support of his application, the Plaintiff's deposition was that sometime in February, 2011, the Ministry of Lands issued Certificate of Title No. 218364 of Lot No. N/622/M Kawama. He produced the said Certificate of Title, marked "RMl" showing the extent of the land in issue as being in extent 4763 and a lease for the expired residue of a term of 99 years from the 1 st February, 2011. He deposed that he has been paying ground rent bills as exhibited in the Ground Rent Bill forms marked "RM2" from the Ministry of Lands. According to the Plaintiff's deposition, he has, in the recent past, received information from children that some unknown p eople have been unlawfully claiming ownership of the land and that they have even engaged in illegal building activities on part of the land. Further, according to the Plaintiff, R2 the 1 s t Defendant, Margaret Njovu, is claiming ownership of the shaded piece of land indicated on the exhibit marked and produced as "RM3". After further inquiries, it was discovered that the 1 st Defendant has even sold part of the land to the 2nd Defendant. The Plaintiff made an effort to verify with the local authority if there were any changes that made the defendants to act in the manner that they did, which, according to the Plaintiff, deprived him of quiet and peaceful enjoyment of the land and interfered with his intended development. However, when the 1 st Defendant was asked as to who gave her authority to start demarcating and selling part of the land in issue, she remained mute. When the Plaintiff again verified with the Ndola City Council if they were the ones who had authorized the Defendants to develop the land, they refused having done so and said they had no idea about it. In his Further Affidavit in support of this application, the Plaintiff referred to a letter from the Ndola City Council to the Ministry of lands, headed "NUMBERING OF A SMALLHOLDING", appearing as Exhibit "RMl" attached to the said Affidavit. In that letter, the Director of Legal Services at the Ndola City Council referred to the Council's earlier letter dated 9th May, 1990, regarding the 'Numbering of a Smallholding', and which enclosed eight prints showing a proposed subdivision to create a smallholding bordered in red, for the attention of the Commissioner of Lands. In that letter, the Director of Legal Services also informed the Commissioner of Lands that Council resolved that Mr. J. Musonda (the Plaintiffs father) be allowed to remain on the site since he R3 settled there in 1964 and has extensively developed the same. He further requested the Commissioner of Lands to allocate a Lot Number and convey his Consent to the Commission Survey, and directed him to process an offer letter in favour of Mr J . Musonda. The Plaintiff further deposed that the same land was surveyed in 1985, and exhibited a survey diagram marked "RM2". For the forgoing reasons, the Plaintiff seeks an injunction restraining the Defendants from trespassing, interfering, harassing, alienating or carrying out any building activities on Lot No. N/622/M. The 1 st Defendant, Margaret Njovu, filed an Affidavit in Opposition to the application for an injunction, while the 2 nd Defendant, cited only as Janet, d id not file any affidavit in opposition. (I In her Affidavit in Opposition, filed into Court on 7 th June, 2017, the 1 st Defendant deposed that she is a member of the Gaula Agricultural Association, and that she has been cultivating in the area along the Tunsenshi Stream for 60 years now. She went on to depose that under Cause No. 2006/HN/308, the land in issue came under a dispute involving the Ndola City Council and the Gaula Agricultural Association, and that there was a Consent Order tha t was entered into to the effect that the said area around the Tunsenshi Stream b e re-planned and offered officially to the members of the Gaula Association, and that she was a beneficiary of the resulting plots. She exhibited a copy of the R4 said Consent Order as "MNl". She denied having been illegally conducting any activities on the Plaintiffs land, claiming that she was offered the land by the Ndola City Council pursuant to a Consent Order dated 14th March, 2011, even before the Plaintiff was given his Title Deed by the Ministry of Lands. She exhibited, as "MN3'', a copy of the allocation schedule to the Ndola City Council, dated 25th August, 2015, evidencing the same. She contended that the Plaintiff is not entitled to an injunction, because she has cultivated some maize and vegetables on her plot, but the Plaintiff is not allowing her to harvest her hard earned prod uce which, she deposed, was the result of hard work and which s h e depends on for food. At the hearing, Counsel for the Plaintiff relied on the two affidavits filed on the 29th March, 2017. He further placed reliance on Order 27, Rule 1 of the High Court Rules, Cap. 27 of the Laws of Zambia, which provides that: "In any suit in which it shall be shown to the satisfaction of the court or a judge that any property which is in dispute in a suit is in a danger of being wasted, damaged or alienated by any party to a suit it shall be lawful for the Court or a judge to issue an injunction to such party commanding him to refrain from the particular act complained of or to give such order for the purpose of staying and preventing him RS from wasting, damaging or alienating the property ..... " Counsel argued that, as deposed in paragraph 4 of the Affidavit in Support of the application for an injunction, the land for the Plaintiff is on title, which title has been exhibited as "RMl" and shows that the land which the 1st and 2 nd Defendant have encroached into covers an area of 10.4763 hectares. He further argued that the 1st and 2nd Defendants have gone to the extent of claiming ownership of a part of that piece of land and are now digging foundations in readiness for construction, and have also uprooted beacons of this piece of land, thereby terribly inconveniencing the Plaintiff. He argued that if an injunction is not granted, the Plaintiff will suffer irreparable damage. Counsel for the Plaintiff went on to argue that, as guided by the case of Shell and B. P Vs Conidaris and Othersfl), where it was held that the Court will not grant an injunction unless the right to relief is clear, and unless the injunction is necessary to protect the Plaintiff from irreparable injury, in the case in casu, one of the reliefs which the Plaintiff seeks is an order declaring the Plaintiff to be the rightful owner of Property No. N/622/M, which piece of land, is on title. • He argued that this shows that the relief which the Plaintiff seeks before this Court is very clear, and that if it is not granted, he will suffer irreparable injury. R6 Counsel further referred the Court to the case of Communications Authority Vs Vodacom Limited{2), where the court held that: "In an application for an injunction, there are two main issues to be considered. These are irreparable injury and the right to relief. It is for the party seeking an injunction to establish clearly that he is entitled to the ri.ght which he seeks to protect by an injunction." Counsel submitted that, from the above authorities, it is clear that the Court can only grant an injunction after it is satisfied that the two-fold test founded in the aforesaid authorities has been satisfied, namely: 1. That there 1s a serious question to be tried or the right to relief is clear. 2 . Whether or not the Plaintiff will suffer irreparable damage that cannot be atoned for by way of compensation or damages being granted. According to Counsel, in the current case, since the Plaintiff seeks an order that he be declared to be the rightful and lawful owner of the property, this case has a question to be tried, which is "who is the owner of Lot No. R7 • • N/622/M Kawama, Ndola?,, He submitted that the Plaintiff has gone further to exhibit the title and all the receipts indicating that he pays the ground rent to the Ministry of lands, thus reviewing, as guided by the Communications Authority case, that he is entitled to that property which he seeks to protect by an injunction. It was Counsel's further contention that the Plaintiff will suffer irreparable injury if the two Defendants are allowed to continue with their activities on the said piece of land, before the matter is determined in totality. On this premise, he prays to the Court that it grants the Plaintiff an injunction restraining the Defendants, either by themselves, their agents, servants and whoever 1s interfering with Lot No. N/622/M, Kawama, Ndola, from so interfering. • Counsel for the 1 st Defendant opposed the application for an injunction and relied on the Affidavit in Opposition filed on 7 th June, 2017. She also made a viva voce response to the submissions by Counsel for the Plaintiff. Concerning the submission by Counsel for the Plaintiff, that the disputed land is measuring 10.4 763 hectares, she submitted that this is at variance with the Plaintiffs Exhibit "RMtt', which is the certificate of Title belonging to the Plaintiff. She contended that the Exhibit shows that the extent of the land is 4,763 hectares which, she submitted, is very large land, and, therefore, that she is at pains to believe whether this land was really given to the Plaintiff. R8 Counsel for the 1 st Plaintiff further submitted that at paragraph 4, of the 1 s t Defendant's Affidavit in Opposition, the ist Defendant has given evidence that she has been cultivating along the Tunsenshi Stream for over 60 (sixty) years. She contended that when one examines the Survey Diagram attached to Exhibit "RMl", it does not show that there is a stream in the Plaintiffs land. She, accordingly, submitted that the Plaintiff is mistaken as to the extent and boundaries of his land, and, therefore, that he is making a claim over land which does not belong to him. In this regard, she submitted that the Plaintiffs • right to relief is not clear and he is, therefore, not entitled to an injunction. Counsel for the }st Defendant also referred the Court to Item No. 1 of the Consent Order appearing as Exhibit "MNl" in the 1st Defendant's Affidavit in Opposition and submitted that the 1 st Defendant has a clear right to occupy the area along Tunsenshi Stream, rendering the Plaintiffs action to be misplaced and misguided. Counsel further drew the attention of the Court to paragraph 7 of the 1 st Defendant's Affidavit in Opposition and prayed that, in the event that the Court decides to grant an injunction, the 1 st Defendant be allowed to harvest her • vegetables and crops which are of a perishable nature. The 2nd Respondent told the Court that she did not know why she was brought before this Court, because she just bought that piece of land from the 1 st Defendant, and that when she bought it she and the 1st Respondent had gone R9 to the Council and the Council did a survey and measurement of that land. She argued that the area where she bought the land was Kamba Infill, and not Kawama and that even the documents that she has indicate Kamba. She further stated that she and the 1 st Defendant were told, at the Counsel, that the area where she had bought her piece of land had no certificates of title and that the Council would just issue them with land Records, since they had already been issued with receipts. They were further told that they were going to be issued with certificates of title, only upon completing paying the K3,000 • which they were asked to pay. She stated that the Council even authorized her to start building, and that she even built up to window level and has also bought sand and stones. Thereafter, she received a summons requiring her to appear in court where she and the 1 st Defendant were restrained from going to the area where she bought that piece of land. She asked the Court to allow her to continue going to that land and continue building. In short, she was opposing the grant of an injunction. • In his response, Mr. Sichone addressed the issue of the 10.4763 hectares, which Counsel for the 1 s t Respondent questioned as the extent of the land in issue. He submitted that on the second page of the Lease, attached to the Title Deed marked "RMl", it states, in line No. 5, that "All that piece of land in extent 10.4763 hectares more or less, being Lot No. N/622/M .... " which, he submitted, is the land in issue. He contended that even if Counsel for the 1 st Defendant argued that the land is measuring 4 763 hectares, when one RlO looks at the number that is on the Survey Diagram and the 10.4763 hectares, this shows that probably there was a typographical error on the Survey Diagram, which issues, he submitted, can be questioned at trial, and not at this particular point, because the property still remains the same, which is Lot No. N/622/M Ndola. As regards the questioning, by Counsel for the 1 st Defendant, that the land which the 1 st Defendant is claiming is along the Tunsenshi Stream, but that her Counsel cannot see any stream on the Survey Diagram, Mr Sichone submitted that paragraph 7 of the Affidavit in Support of the Plaintiffs application clearly shows the area in question, which the 1 st Defendant is claiming, and "RM3", the map revealing the said stream in the said area. He argued that even if the Defendant claims that she has a right to be on that piece of land, she did not produce any document before Court or even in the Affidavit in Opposition, showing that she has the right to be in that piece of land. He went on to argue that the only thing which she referred to is "MNl", the Consent Judgment, indicating what should be done. According to Mr Sichone, the question that begs an answer is "Where ts the letter of offer that the l 5 t and 2 nd Defendants were offered that piece of land?" He submitted that the Plaintiff has exhibited a certificate of title and that, in his Further Affidavit in Support, another document marked "RMl" showing how he acquired that land, which, he submitted, clearly shows that his right to Rll relief is very clear and that he 1s entitled to protect his property by way of injunction. In conclusion, Counsel submitted that if the injunction is not granted, the Plaintiff will suffer irreparable damage or injury. He maintained that the Plaintiff should be granted an injunction pending determination of the whole matter in this case. I have perused the affidavit evidence filed into court, the verbal submissions made by Counsel for the Plaintiff and Counsel for the 1 st Defendant, as well as the verbal submissions made by the 2nd Defendant. A look at the Diagram marked "RM2'' attached to the Plaintiffs Further Affidavit in Support of his application shows that the land ref erred to in that diagram belongs to Mr Musonda, and is referred to on the note on the side of that diagram as a small holding in the outskirts of Kawama Township. I have noted that on that diagram, there is a date stamp from the City of Ndola and, in particular, the Town Clerk's Office. However, the year on that date stamp is not clear as the diagram is a copy of the original diagram. However, it was on the 3 rd February of a particular year. Further, there is an endorsement on that diagram designating the said piece of land as Lot/N/622/M Ndola, which is the same piece of land that is in dispute. I have noted that the same Lot number also appears on the Plaintiffs Certificate of Title, issued on 1 st February, 2011, and exhibited as "RMl" to the Affidavit in Support of the Application for an • R12 Injunction. This Certificate of Title shows that the land for the Plaintiff is on title . According to the 1 st Defendant's deposition, in her Affidavit in Opposition to Injunction, she is a member of the Gaula Agricultural Association and she has been cultivating in the area along the Tunsenshi stream for 60 years. There was a consent order that was entered into to the effect that the said area around the Tunsenshi Stream be re-planned and offered officially to the members of the Gaula Association and that she was a beneficiary of the resulting plots. Counsel for the 1 st Defendant contended that when one examines the Survey Diagram attached to Exhibit "RM 1 ", it does not show that there is a stream in the Plaintiffs land, and submitted that the Plaintiff is mistaken as to the extent and boundaries of his land, and, therefore, that he is making a claim over land which does not belong to him. • Since, on the diagram marked Exhibit "RM2", showing the Plaintiffs land, there is a stream named "Kansenshi Stream", it is most likely that the land that the Plaintiff and the two Defendants are claiming ownership of is part of the land in that same area. Further, it is likely that it is on this same portion of land where they are digging foundations in readiness for construction, and have uprooted beacons. RB I have noted that even if the 1 st Defendant claims that she has a right to be on the piece of land in issue, she did not produce any document before Court or even in the Affidavit in Opposition, showing that she has the right to be on that piece of land. She has not exhibited any offer letter for the said plot, from the Ndola City Council, or a certificate of title showing that she has title to the land that she claims was offered to her by the Council. The only thing that she referred to is "NMl", the Consent Judgment. On the other hand, the Plaintiff has exhibited a certificate of title and, in his Further Affidavit in Support, another document marked "RMl" showing how his father acquired that land. I have drawn my attention to Exhibit "RMl", which is a letter from the Ndola City Council to the Ministry of Lands, headed "NUMBERING OF A SMALLHOLDING", attached to the Plaintiffs Further Affidavit. I have noted from that letter that the Director of Legal Services at the Ndola City Council referred to another letter dated 9th May, 1990, regarding the 'Numbering of a Smallholding'. The Director of Legal Services also enclosed eight printouts showing a proposed subdivision to create a smallholding bordered in red, for the attention of the Commissioner of Lands. In the same letter, the Director of Legal Services also informed the Commissioner of Lands about the resolution by Council that Mr J. Musonda (who is the Plaintiffs father) be allowed to remain on the site since he settled there in 1964, and had extensively developed the land. The other request that the Director of Legal Services made to the Commissioner of Lands was for him to allocate a Lot Number to the said piece of land and convey his consent to the Commission survey. In the same R14 letter, the Director of Legal services directed the Commissioner to process an offer letter in favour of Mr J. Musonda (the Plaintiffs father). As the Plaintiff has deposed, the said land was surveyed in 1985, as exhibited by the diagram marked "RM2". As for the 2nd Defendant I have noted that the land on which she has started ' building, on which land she has put the sand and stones that she mentioned, is the same land which is under contention, and which land the Plaintiff is claiming. As regards the extent of the land in issue, I have noted that, on the first page of "RM!", which is Certificate of Title No. 218364, in respect of Lot No. N/622/M, appearing in the name of Robert Musonda, the Plaintiff in this matte r, and attached to the Affidavit in Support of the application for an injunction, there is a survey diagram for the said piece of land where the extent of the land in issue is shown to be 4 763 hectares. However, on the third page of "RM 1 ", the extent of the land in issue is shown as Ten decimal point Four Seven Six Three (10.4763) hectares. A comparison of the two figures clearly shows that there is a variance between them. However, without, going into the substance of the main matter, I am inclined to believe that there could have been a typographical error on one of the two documents. This, however, is a matter to be considered in detail during trial of the main matter, as it appears to be substantive. R15 As guided by the case of Shell and B. P Vs Conidaris and Another(l}, the Court will not grant an injunction unless the right to relief is clear, and unless the injunction is necessary to protect the Plaintiff from irreparable injury. In the current case, I have noted that one of the reliefs which the Plaintiff seeks is an order declaring him to be the rightful and lawful owner of Property No. N/622/M, which piece of land is on title, in his name. e The renowned authors of Halsbury's Laws of England, 4 th Edition, Volume 24, have stated at paragraph 857 that in considering whether an interlocutory injunction should be granted, the court has regard to the conduct and dealings of the parties before application was made by the Plaintiff to preserve and protect his right since the jurisdiction to interfere, being purely equitable, is governed by equitable principles. I have considered the fact that the Plaintiff in this matter has been paying ground rent, as exhibited in the Ground rent bills which h e produced before this court and marked "RM2" attached to the Affidavit in support. That receipt shows that he paid ground rent for the said property in respect of the period 2014 to 2015, and a penalty for the arrears before 2016. This shows that at the time of commencing this action he had an interest in the land for which he was paying the ground. I have further considered that the 1 st Defendant has already sold part of the land to the 2nd Defendant who has even started constructing on it, and both the 1 st and 2nd Defendants are claiming ownership of a part of that piece of land, and have uprooted beacons of this piece of land. R16 I have also considered the Letters referred to above and the fact that the Plaintiff has a certificate of title in his name now, with a lease commencing on the 1 st February, 2011, in respect of the said piece ofland. Further, I have considered the authorities cited above, and I am satisfied that the Plaintiff has demonstrated that there is a serious question to be tried as to who the legal owner of the land in issue is. He has further shown that his right to relief is clear and that he has real prospects of succeeding in his claim for a - permanent injunction at the trial. I now have to consider whether an award of damages would be adequate if the Plaintiff succeeded at trial of this matter. A fundamental principle of injunction law, as laid down in the case of London Blackwell Railway Company V Cross(3) is that an interim injunction should not be granted to restrain actionable wrongs for which damages are the proper or adequate remedy. That being the case, if the claimant can be fully compensated by an award of damages, no injunction should be granted a t all. In the case of American Cyanamid V Ethicon Limited(4) the test laid down by Lord Diplock is that if damages in the measure recoverable at common law would be adequate remedy, and the defendant would be in a financial position to pay them, no interim injunction should normally be granted. However, Stuart Sime, in his book entitled "A Practical Approach to Civil Procedure" has stated that damages will be inadequate if the defendant is unlikely to pay the sum likely to • R17 be awarded at trial. In the case at hand, I have considered the circumstances under which the 1 st Defendant is in, namely that she has been cultivating maize and vegetables on the land in issue and that the said maize and vegetables are the ones she depends upon, for her food. She did not state any other source of food or income. That being the case, I strongly believe that she will not be in a financial position to pay adequate damages to the Plaintiff, should he succeed at trial in this matter. The same applies to the 2 nd Defendant, to whom the 1st Defendant sold part of the land which the Plaintiff • is claiming to be his. I am, therefore, satisfied that the Plaintiff will suffer irreparable injury if an injunction is not granted against the two Defendants. That being the case, I find that the balance of convenience lies in favour of granting the injunction sought. It is, therefore, expedient for this Court to interfere in this matter so as to preserve the status quo and the land in issue without waiting for the Plaintiffs right to be finally established, until the question that is to be tried is finally disposed of. • I, accordingly, confirm the interim order of injunction which I granted on the 12th July, 2017, and make it interlocutory. I, however, allow the 1st Defendant to harvest the maize and vegetables which she claims she has planted, but that the Plaintiff is not allowing her to harvest them; if she has not yet done so. However, she must do so within 30 days from the date of this Ruling. R18 I make no order as to costs. DATED THIS /. +'\. (f DAY OF th, rvu re ' I u ~ 2017. t c..!> -A1c.s M. C. MULANDA JUDGE R19