Romans Mvula (Suing as Administrator of the Estate of the late January Mvula) v Lusaka City Council (2019/HP/0121) [2022] ZMHC 36 (27 April 2022)

... IN THE HIGH COURT OF ZAMBIA 2019/HP/0121 AT THE PRINCIPAL REGIS HOLDEN AT LUSAKA ~~o~~"j "; }~ ' (Civil Jurisdiction) 1- (CL '··. ~~ ... ~ \ '1-: :_ l. L ·~ 2 7 A PR Jnn \~ / ! / . · &ox. soo67. Lusr-:1/ BETWEEN: ROMANS MVULA (Suing as Administrator of the PLAINTIFF estate of the late JANUARY MVULA} AND LUSAKA CITY COUNCIL DEFENDANT BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN OPEN COURT, ON 27TH DAY OF APRIL, 2022, AT 09:00 HOURS. For the Plaintiff Mr. B. Mosha - Messrs. Mosha and Company. For th e Def endant: No Appearance. JUDGMENT ( CASES REFER~ED TO: 1. Anti-Corruption Commission v Bame t De velopment Corporation Limited (2008) Z. R. 28; 2. Zambia Railways Limi ted 11 Pauline S Mundia, Brian Sialumba (2008) Vol. 1, Z. R. 287 (S. C); 3. Jen11ifer Nawa. v S tandard Bank Zambia Pie- S. C. Z. Judgment No. 1 of2011; and 4. Raphael A c"-:irn Namunganclu u Lusaka City Counsel (1978) Z. R. 358. LEGISLATION REFERRED TO: 1. The H igh Court Act, Chapter 27, Volume 3 ofthe Laws of Zambia; 2 . The Lands and Deeds Registry Act, Chapter 185, Volume J 2 of the Laws of Zambia; and 3 . The Improvement Area (Kamanya Compound) Declaration Order Statutory Instnunent No. 3 7 of 1999. Jl I p ,: :; t' INTRODUCTION 1.1 This Judgment is 1n respect of land in Kamanga Area, registered in the name of January Mvula, which Lusaka City Council appropriated and issued Occupancy Licences to third parties. BACKGROUND 2.1 The background to this matter as gleaned from the Pleadings is that the late January Mvula ("Deceased") was gifted land known as Subdivision No. 10 of Subdivision No. 242 of Subdivision 'A' of Farm No. 609, Lusaka ("Subject Property") by a Mr. Younger, who was the bona fide owner. To that effect, a Certificate of Title was issued to the Deceased on 21 st December, 1977. 2.2 The Deceased demised in May, 2010 and the Plaintiff, Romans Mvula, who is the daughter of the Deceased was appointed Administra trix of the Deceased's estate on 4 th May, 201 1. In the process of administedng the estate, the Plain tiff discovered that unknown persons had evaded and illegally built stru ctures on the Subject Property. It later came to her attention that the unknov.rn persons were allocated the land on the Subject Property by Lusaka City Council, the Defendant h erein and that the Defendant has been collecting rates from these unknown persons. 2. 3 It is against this backdrop tha t the Plain tiff launched this action against the Defendant. J2 I P a g t: C PLEADINGS • 3.1 The Plaintiff herein issued a Writ of Summons on 25th January, 2019, against the Defendant with claims for the following reliefs: - i) The return to the Plaintiff of the property known as Subdivision No. 10 of Subdivision No. 242 of Subdivision 'A' of Farm No. 609, Lusaka; or ii) Land alternative to the piece of land known as Subdivision No. 10 of Subdivision No. 242 of Subdivision 'A' of Farm No. 609, Lusaka; iii)Any other relief the Court may deem fit; and iv) Costs. 3.2 By the Plaintiff's Statement of Claim filed on 25th January, 2019, the Plaintiff averred that by an Order of Appointment of Administrator dated 4 th May, 2011, she was appointed Administratrix of the estate of the Deceased. At the time of his death, the Deceased was the legally registered and beneficial owner of the Subject Property under Certificate of Title No. 45099. It was further averred that the Subject Property has been unla\\rfully and without the consent of the Deceased or his estate been allocated by the Defendant to unknown persons and that the 20,000 acres of which the Subject J3 I Pa g ~ ( • ( Property corn pnses now forms part of Kamanga Compound in the Chelstone area of Lusaka. 3.3 The Plaintiff further averred that the Defendant has been collecting rates from the inhabitants on the Subject Property and has proceeded to issue land record cards to some of the inhabitants on the Subject Property without the consent of the registered owner of the Subject Property. 3.4 By the Defendant's Amended Defence filed on 14th July, 2020, the Defendant denied that it illegally allocated and/ or allocated the Subject Property to unknown persons a nd/ or a ny persons at all. The Defendant averred that it moved in the area in issue or the entire Kamanga Compound in pursuance of its statutory obligation as a Local Auth ority. The Defendant averred that that the Subject Property had been occupied by its inhabitants for more than 20 years and that therefore, the Defendant cann ot be said to have without the consent of the Deceased or his estate illegally allocated the Subject Property to the said inhabitants. 3.5 The Defendant denied that it collects rates from the Subject Property but that it instead collects a levy in form of ground rent for the services it provides in the area such as health, waste management, water and sewer services. The Defendant further denied that it issued land record J4 I P age cards to some of the inhabitants of the Subject Property but Occupancy Licences. The Defendant averred that the Plaintiff is not entitled to the return of the Subject Property or any of the reliefs sought as the Subject Property has never been in the Deceased 's possession nor does it form part of the Deceased's estate . EVIDENCE AT TRIAL 4 . 1 At the trial of the action, the Defendant and its Counsel were absent despite being aware of the date of hearing and without advancing any reasons. It is trite law that where a party does not appear for a hearing, in the absence of sufficient reason justifying their non-appearance, a Court may proceed to h ear the matter and give Judgment on the basis of the evidence adduced by the Plaintiff. This is as provided by Order XXXV, Rule 3 of The High Court Rules1 , which is couched as follows: - ( "If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the Court may, upon proof of service of notice of trial, proceed to hear the cause and give .fudgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant." (Court 's emphasis) 4.2 Based on the foregoing, this Court proceeded to hear the Plaintiff's case in the absence of the Defendant. JS I P a ge C ( 4.3 PWl was Romans Mvula and she testified that she was the Administratrix of the estate of the Deceased, Mr. January Mvula, who was her father. PWl testified that she brought this matter against the Defendant to recover the Subject Property on behalf of the Deceased's estate. She stated that she had a document from the Ministry of Lands and a Title Deed to the Subject Property. She referred the Court to page 2 of the Plaintiff's Bundle of Documents containing a copy the Certificate of Title to the Subject Property. She testified that the Subject Property vvas given to the Deceased by Mr. Younger and she referred the Court to page 9 of the Plaintiffs Bundle of Documents, containing a Lands and Deeds Registry printout indicating that Mr. Younger gave the Deceased the Subject Property by way of Deed of Gift. 4 .4 It was PW 1 's testimony that she came to learn of the Subject Property when the Deceased was still alive. She further stated that she had visited the Subject Property before and that she knew that there were squatters on the Subject Property. PW 1 stated that when she learnt of the squatters, she went to the Ministry of Lands and they advised her to engage a lawyer to help her remove the squatters from the Subject Property as the issue was beyond the Ministry of Lands. Further, PWl testified that she went to the Lusaka City Council and they advised her that there were squatters living on the Subject Property. J6 I P., g e .. C ( Furthermore, PW 1 stated that she was not aware of any documents that the squatters may have concerning the Subject Property. 4.5 PW2 was Ennie Mvula, aged 44 years old and a teacher by Profession. PW2 testified that PW 1 is her mother and that she is following up the issue of the Subject Property which belonged to the Deceased who was her grandfather. She stated that the Subject Property is in Kamanga/ Chamba Valley area and that it was a subdivision of Plot 609 Chamba Valley/Kamanga area. PW2 further stated that the Deceased was the owner of the Subject Property and referred the Court to pages 1 and 2 of the Plaintiffs Bundle of Documents containing a copy of the title deed to the Subj ect Property. 4 . 6 PW2 testified that the Deceased acquired the Subject Property in 1977 when it was given to him by his boss J\1r. Younger. PW2 referred the Court to page 9 of the Plaintiff's Bundle of Documents containing a copy of the Land Register print out which indicated that a Deed of Gift was registered on 21 s t February, 1977, in favour of the Deceased by Mr. Younger. 4.7 PW2 stated that she knew that the Subject Property belonged to the Deceased as he used to tell her about it. Further, PW2 stated that when the Deceased died in 201 O, her 1nother, PWl was appointed Administratrix of the J7 I P age Deceased's estate and that she went to the Ministry of Lands to determine whether the Subject Property was recorded in the system. At the Ministry of Lands, she was assigned surveyors and they went to view the Subject Property in 2014. PW2 stated that the Subject Property was visited again in 2019 and it was discovered that there were settlers living on it. Furthermore, PW2 stated that she was told by the officers from the Ministry of Lands that the settlers were put there by the Defendant and that it was a political issue. PW2 also stated that PW 1 was advised to seek redress from Court. 4.8 This marked the close of the Plaintiff's case. SUBMISSIONS 5 . 1 The parties herein were given a time frame within which to file their written submissions. Only the Plaintiff filed h erein her written submissions. 5 .2 By submissions filed on 17th March, 2022, by the Plaintiff's ( Counsel, it was submitted that the dispute in issue revolves around the legal and beneficial entitlement to the Subject Property. Counsel went on to state that althoucrh C> the Defendant herein had denied that it had illegally allocated the Subject Property to its current occupiers, it had moved into the area encompassing the Subject Property in pursuance of its statutory obligation as a local authority. Counsel further asserted that the Defendant Ja I P d g e:, ( ( was neither obligated nor compelled to move into the Subject Property by a decree or statute as the Subject Property is on title and forms part of the estate of the Deceased. 5.3 Counsel submitted that the Defendant by its Amended Defence stated that it only issued Occupancy Licences to persons that live on the Subject Property and that this made the Defendant's action illegal as the Deceased is the legal and beneficial owner of the Subject Property. 5.4 Counsel cited Section 33 of The Lands and Deeds Registry Act'2 and the case of Anti-Corruption Commission v Barnnet Development Corporation Limited1 in support of the submission that the Defendant did n ot s h ow that the purported squatters had any eviden ce of ownership of the Subject Property or good claim to t h e property. Counsel further submitted that the Deceased was th e legal and beneficial owner of the Subject Property by virtue of the Certificate of Title issued in his name, which fact had never been challenged by the Defenda nt. Counsel further submitted that the Defendant had failed to dispute the Deceased's title to the Subject Property within the time prescribed by law and that therefore, the Plaintiffs title is valid and sufficient proof of ownership. CONSIDERATION AND DECISION OF THE COURT Jg I P ;-i E? e C ( 6.1 I have considered the Pleadings, evidence adduced before this Court and submissions. The Plaintiff claims inter alia for the return to the Plaintiff of the Subject Property; or alternative land; any other relief this Court may deem fit; and costs. 6.2 The burden of proof is on the Plaintiff to prove her claims to the required standard. The Supreme Court in Zambia Railways Limited v Pauline S Mundia, Brian Sialumba3 held that: - "The standard of proof in a civil case is not as rigorous as the one obtaining in a criminal case. Simply stated, the proof required is on a balance of probability as opposed to beyond all reasonable doubt in a criminal case. The old adage is true that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable ... " 6.3 The facts alleged by the Plaintiff are that the Deceased was the registered legal and beneficial title holder of the Subject Property at the time of his death in May, 2010. The Plaintiff further alleges that the Subject Property was gifted to the Deceased by his boss, Mr. Younger, in 1 977. Following the Deceased's death, the Plaintiff was appointed Administratrix of his estate and on further inquiry by the Plaintiff on the status of the Subject Property at the Ministry of Lands, she found that the JlO I P cl g I;' , ( ( Subject Property wa s registered 1n the names of the Deceased. 6.4 The Plaintiff, with the assistance of surveyors was able to find the exact location of the Subject Property . It was determined that the Subject Property now formed part of Kamanga Compound and that it was occupied by squatters. The Plaintiff made further inquiries from the Defendant and she was told that there were people living on the Subject Property. The Plaintiff is therefore seeking possession of the Subject Property, which forms part of the Deceased 's estate. 6.5 On the other hand, the Defendant by its Amended Defence , denied the Plaintiff's allegations and stated that it did not illegally allocate the Subject Property to the current occupiers of the Subject Property but that it moved in the area comprising the Subject Property in pursuance to its statutory obligation as a local authority. The Defendant contends that the occupiers of the Subject Property h a ve b een on the Subject Property for more than 2 0 years and that therefore, it cannot be said that the Defendant without the consent of the Deceased allocated the Subject Property to the occupiers illegally. The Defendant therefore contends that that the Plaintiff is not entitled to the return of the Subject Property as the Deceased had never been in possession of the Subject Jll I P <1 s e .. C ( '· Property nor does the Subject Property form part of the Deceased's estate. 6.6 On my analysis of the pleadings and evidence on record, I find that the legal issue for determination is whether the Deceased at his death was the legal owner of the Subject Property and thereby entitling the Plaintiff to an order of possession of the Subject Property. 6 .7 In order to determine the legal issue herein, I am guided by the provisions by Section 33 of The Lands and Deeds Registry Acffe which provides as follows: - "A Certificate of Title shall be conclusive as from the date of its issue and upon and after the issue thereof. notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the President or otherwise, which but for Parts lll to VII might be held to be paramount or to have priority; the Registered Proprietor of the land comprised in such Certificate shall, except in case of fraud, hold the same subject only to such encumbrances, liens, estates or interests as may be shown by such Certificate of Title and any encumbrances, liens, estates or interests created after the issue of such Certificate as may be notified on the foll.um of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever: J12 I r .1 1i e , ( ( (a) Except the esta te or interest of a proprietor claiming the same land under a current prior Certificate of Title issued under the provisions of Parts III to VII; and (b) Except so far as regards the omission or misdescription of any right of way or other easement created in or existing upon any land; and (c) Except so far as regards any portion of land that may be erroneously included in the Certificate of Title, evidencing the title of such Registered Proprietor by wrong description of parcels or of boundaries." (Court's emphasis) 6 .8 Further , Section 35 of The Lands and Deeds Registry Act 2 provides as follows regarding adverse possession of land : - "A fter land has become the subiect of a Certificate of Tit le, no title thereto, or to any right. privilege, or easement in, upon or over the same, shall be acquired by possession or user adversely to or in derogation of the title of the Registered Proprietor." (Court 's emphasis) 6 . 9 From the forgoing, provisions it is clear that save for the prescribed circumsta nces, once land has become a subject of a cer tificate of title, it shall be conclusive as from the date of its issue and that no rights by adverse possession can be a cquired if land becomes the subject of a certificate of title. J 13 1 1-' o g e ( ( 6.10 At trial, the Plaintiff produced a copy of a Certificate of Title relating to the Subject Property bearing the Deceased's name on page 2 of the Plaintiff's Bundle of Documents. Further the Plaintiff produced a copy of the land register print out dated 21 s t May, 2019, indicating that by way of Deed of Gift, the Deceased received the Subject Property from Mr. Graham Younger. I note from the said land registry print out that no further entries relating to the Subject Property were made on the land register after the Certificate of Title was issued to the Deceased in 1977. Based on the foregoing evidence and the authorities cited above, I am satisfied that the Plaintiff has proved on a balance of probability that at the time of the Deceased's death , the Deceased was the legal and beneficial owner of the Subject Property. Therefore, I find that the Subject Property forms a part of the Deceased's estate. 6.11 On further a na lysis of the Defendant's pleadings, I find that despite the Defendant alleging in its Amended Defence that it was issuing Occupancy Licenses and collecting ground rent from the occupiers of the Subject Property pursuant to its statutory obligations and that the occupiers of the Subject Property have been living on it for more than 20 years, the absence of the Defendant at trial meant that no evidence was led to substantiate the said allegations. In any case the real issue is not how long a p erson without lawful title occupies a piece of land. Rather J14 I r i! g t' J ., C ( it whether such a person has by law a right to occupy the piece of land in contention. In the current matter the Deceased was the lawful owner of the Subject Property . The law referred to above is very clear and means what it says. A certificate of title is conclusive proof that the Deceased was the lawful owner of the Subject Property. 6.12 I note further that the Defendant included Statutory Instrument No. 37 of 1999 The Improvement Area (Kamanga Compound) Declaration Order, 19993 at p age 2 of the Defendant 's Bundle of Documents, which in my view was an attempt by the Defendant to demonstrate that the Subject Property was now a part of Kamanga Compound , which was declared a Statutory Improvement Area in 1 999 . However , no evidence was led by the Defe ndant to s how how the Subject Property, which is on title to the Deceased , was included as part of the Improvem ent Area. Even in the event that such evidence wa s led , The Improvement Area (Kamanga Compound) Declaration Order, 19993 was passed in 1999, which d ate is clearly after 1977, which year the Certificate of Title to the Subject Property was issued to the Deceased. In the case of Jennifer Nawa v Standard Bank Zambia Plc3 ' the Suprem e Court stated as follows regarding the retrospective application of the law: - "It is trite law that unless expressly stated, a law does not operate retrospectively." JlS I P 3 !!, e 6.13 Further and significantly, a local authority, such as the Defendant, is expected to be a good example of obeying the laws of the land. To purport to appropriate the Deceased's property through the purported Improvement Area (Kamanga Compound) Declaration Order, 19993 without following the due process of the law is completely unacceptable. To say otherwise would lead anarchy as one holding a certificate of title would be rendered meaningless if local authorities such the Defendant would at will circumvent the law by purporting to issue Occupancy Licenses on land legitimately on a certificate of title such as the Subject Property. This would be contrary to the intention of the law cited above. The Court must frown upon such delinquent behaviour by the Defendant, otherwise certificates of title will be rendered meaningless. 6.14 Ba sed on the foregoing findings and my analysis of The Improvement Area (Kamanga Compound) Declaration Order, 19993 , I find that the said Order makes no provision for its retrospective application. I am therefore of the view that the Defendant has not sufficiently defended its actions on the Subject Property and consequently, its actions in allocating Occupancy Licenses and collecting ground rent from the occupiers of the Subject Property has no legal basis. 6.15 It follows therefore, that the occupiers currently living on J16 I Pa g E the Subject Property are squatters as they have not C ( acquired a legal or equitable interest to the Subject Property. In the case of Raphael Ackim Namungandu v Lusaka City Counse Z4 , the Court observed as fallows regarding squatters: - "Squatters build at their own risk and if the owners of the land withdraw their permission or licence of if they decide to demolish a structure built in the absence of permission or other lawful relationship, the squatters' losses, though very much regrettable, are not recoverable in a court of law. " CONCLUSION 7.1 I am satisfied that the Plaintiff has proved on a balance of probabilities that at the time of the Deceased's death, the Deceased was the legal and beneficial owner of the Subject Property. Therefore, the Subject Property is and should form a part of the Deceased's estate. Additionally, I find that the Defendant has not sufficiently defended its actions on the Subject Property and therefore, its actions in a llocating occupancy licenses and collecting ground rent from the occupiers of the Subject Property has no legal basis. Consequently, the Plaintiff succeeds in her claims and I order as follows: 7.1.1 that the Deceased's estate through the Plaintiff is hereby granted an order of vacant possession of the Subject Property fron1 all persons 1n illegal Jl7 I P age t r i possession of the said Subject Property within sixty (60) days from the date of this Judgment; and 7.1.2 The Defendant is ordered to find alternative land for all the persons in illegal possession of the Subject Property, the Defendant being the cause of this illegality and condoning it by issuing purported Occupancy Licenses to the affected illegal occupiers of the said Subject Property. 7.2 Costs are awarded to the Plaintiff, to be taxed in default of agreement. 7.3 Leave to Appeal is granted. SIGNED, SEALED AND DELIVERED AT LUSAKA, THE 2,pn DAY OF APRIL, 2022. P. K. ANGAILO HIGH COURT JUDGE J1s I r ,, :.- r• , )