Sichinga & Another v Shabusale (Appeal 200 of 2015) [2018] ZMSC 287 (1 August 2018)

... ' • t IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No.200 /201 5 SCZ/ 8 / 227 /2015 BETWEEN: DON SICHINGA YORAM SHAMALAMB O 1 AUG 2018 1 ST APPELLANT 2 ND APPELLANT AND WEBSTER DICKSON SHABUSALE RESPONDENT Coram: Mambilima, CJ , Wood and Kaoma, JJS . On 10th July , 2018 and on 1st August, 2018 For the Appellants: N /A For the Respond ent: Mr. K. Shepande- Shepande & Company JUDGMEN T Kaoma, JS , delivere d the Judgment of the Court. Cases referred to: 1. Stanley Mwambazi v Morrester Farms Limited (1984) Z. R. 98 2. Rosemary Phiri Madaza v Awadh Karen Coleen (2008) 1 Z. R. 12 3. Oscar Chinyanta and 31 others v Alasia Building Construction Ltd and Tap Zambia Limited - Appeal No. 158 of 2015 4 . Liamond Choka v Ivor Chilufya (2002) Z. R. 33 5 . Greater London Council v Jenkins (1975) 1 WLR 155 Legislation referred to: 1 . Rules of the Supreme Court (White Book) 1999, Order 28 rules (3) and (4), Order 33 (3) and Order 113 2. Supreme Court of Zambia Act, Cap 25, section 25 3. High Court Rules, Cap 27 Order 3 (2) and Order 30(21) 4. Lands and Deeds Registry Act, Cap 185, sections 33 and 34. r Jl 2 Other works refer red to : 1. Black's Law D1ictionary 6 th edit ion, 1995, page 555 Thi is an app al ag inst a judg --e - t of th 1 g our mb • The backgro nd fact to this appe ar ha t e spo,nden is t 1 e tit ,e holder of the p op rty in i su - which is i e te .t 100 h ctar . The app 11 ns occ py abo t 10 to 15 h c , ar s of thi land. In ebrua:ry, 2012 he respond n c mmenc d leg 1 against th - app · IIant by orig·nating summo·n p r .uant o Order 113 of th Rules of the Supreme Cou rt '(White Book) 1'999 se k ing umma:ry p·os e·ssio , of the port.on . of h's land occ p,i db he appel an ts. The affidavi ev·denc that w s placed b, fore h · c u b lo r _al d, ha he respond · nt, hi - sibl ·ng and hi P " rents had been in occupation o,f the p 1roperty as early a ·948. Th proper -a - u d ·r cus omary nur . In Octob r, 2000 th r · p n ·en a pp lie o Ch ,·e Shakumbila, in who e chi -fdom the land i - it a _ d, to have h land conv rt d to, leas, ho·ld t·enur, . Th - p opos d it · plan gave the extent of the la d k n own a . Lot 16532/M. Thi incl 1 d d Lot - 18974/M and 18975,/M. The land covered 2010 hectares. On 26 th D cemb, r, 2000 th -- Chief app ·oved he ap,plica ion. ,, J3 Subs quently, th,e respondent applie,d t,o, t Mumb a District Council for furth r actio,n on · h convers·on of th · land to· lea - -hold t nure .. In Ma , 2002 th,e Coun il also approv d _h ·.·· applica 1 ion £ r the 200, hectare.s after inspectio,n of the subject property (page 35) and then recomm nded to the· Commissio,ner ,of Lands to h ,ave th land converte,d to 1 a hold tenure. Th· respondent al o ,applied to the Commissioner of Lan,ds for title deed , for the 20,0 h 1Ctar s. On 18,th December, 2003, the Ministry of Lands wrot · to1 the r ,espondent in connection with his application for Lot 16532/M rais.ing, co1n 'c rn that the prop,osed small holding encompa ,. d he r 'o,ad linking Lusaka and Shibuyunji and that his b 1eing a main road, it could no .· pass thro,ugh th pr,op,osed .farm · ·. , shown on ; ·. si · plan. He wa . dv" .se,d to re-plan th · farm to I av · out the road a 1 d to consult h - Central Provin,c . Pl.anning Authori y an,d the L,ocal Co,uncil,, to as ist in re-planning the sm -11 holding. Accord.i · ,g to the respond nt, the farm wa re-planned as ,adv· - · 1d. On 11th Oct 1ober, 2005 the respo'n 'd . nt was i.ssu . d with a certif1,cat·e, of title in resp, c 1. of Lot l ,8974/M. At the hearing o,f ·1 h app'e,al we were informed by counsel for 1 h - resp,ondent tha · b caus,,e of th re-planning, whic 1 lef out th r ,o, · d .as a ,dvis.e,d by • J4 the Ministry of Lands , the respondent obtained two separate certificates of title , for Lot 18974/M and for Lot 18975/M. The respondent alleged that the appellants had encroached on Lot 18974/M by building structures thereon and carrying on farming activities and that they were squatters on his land and remained there without his licence or consent. He further d eposed that his effort to remove them from his land had proved futile. The respondent had annexed to his affidavit in support releva nt documents to show how the land was converted from customary te nure to leasehold tenure . In their affidavit in opposition to originatin.g summons, the appellants deposed, among other things , that the respondent had wrongly commenced the action concerning ownership of land by originating summons requiring the court to make declarations instead of using a writ of summons as required b y the law because parties were r e quire d to give evidence a nd b e cross-examined. They a lso alleged that the pieces of land the respondent was illegally claiming under his certificate of title were in Chiyaba Village , which was established in 1931 and far away from the land which was occupied by the respondent's father and grandfather. z ' JS The app,ella · · urt - 1 r ,alleged fraud on · h p ............. r ,esp,,ondent in th,_ m .ann, _ r he ,obtained _he c r . ifi · · basis that th · documents which he used in obtaining the certificat ·· ,of titl : w re rongly mad,e and sign d b,y p 1 opl 1e ho were not th author ty ·ove,r land as require,d b th, · L -· 1ds ct. On 14th March, 2013 th app llan s filed a notice of in .' n io o raise preliminary ·ssu - pursuant to, O·rder 33/3 of h White Bo,o,k, raising the sam ~ · is.sues that w,ere rais·ed in th,eir . 1 1 fidavi . in o,pposit.on to originating summons .. The.y alleged ~ h 1 h approval do11cument b Chi _ f ,shakumbila was forged as, it v.. as n ·ot sign· d b . him but b. one, A. S.hachele. Th,ey also ass rt ·d th.at Order 11.3 is for squa- I' rs and they w·ere not squatt rs in their ,own villag,e as onl the hea,dman and Chief in the a ea c·o·uld declare th m sq atters. They insisted that th - r sp,ond·ent did not follow h , · pr,ocedure require 1d for co.nv, -t· g customary I.and to l _ . · h , d enure b ,y using shortcut of obt,aining the title· deed prop,er d,escription o·f , he land co,vered by th,e titl,e deed. Th,e record h ·ows that when the ma t r cam up, ·On 1 7 Lh D·ecem.ber, 20,13 c 1ounsel for the appellant.s too·k th i w that the preliminary issue,s rais·ed by the app·e·llan ts would be more • , ii J6 adequately addres, ed by j ,oining the A torn,ey- ,en _ ral and . e Comm·ssioner of Lands. Counsel in ! im ted th t ; he wo ld b · making a formal applica 'On l,at .' . s here wa . no obje · ion b·y co ns, 1 for the responde t, he court decided o proc . d with th·e main ma er. It wa ·. only afte·r couns 1 for the r spond n had addre sed th court on e ub antive ma er ha co _ ns 1 for th ap,pellants requested for an adjournment to facilitate the joining of the . torney-General and the Commissioner of Lands. On 13th F b,ruary, 20,14 an app,licatio,n as made o join the Attorne -G neral. In th affidavit in suppor , he app 11 t rep ated their suspicion that the titl · d, ~~ ed up,on which th, · re pondent was r .. lying was fraudulently obtained and cons qu n 1 · gave im no rights over th,e disputed property. They further all ged that th documen g an 1ng t e r·espondent cons.,ent, purport dly under the hand o,f Chi f Shakumbila was signed b. a per . on oth r than th chief which pers.on was. k 1 1own to all the parties ,as not be·ing 'he chi, f. ,_ urthermore, that the 2 nct appellant and his famil had b en in oc upation of th land since · 907 and ,· he 1 t appellant mor, · recently and consequ ntly believ d that the Ministry of Lands w uld • • J7 no hav issu ·d a i le in re p·ect of hat p·roper · ad he proc dur· - be n duly fo lowed and in pection ·Carri d out a claim d. he appellants further a ·· s rt -d that th - land i . · · ssu was the only horn he 2nd appellant and his family had ever known· and th t the land, had b ·e n and is part of th· villag s of Ma ako,. Shank mba .and Chiyaba -ccupied by various amilie: . Ther·e wa . ·objection to this ap·plication and on Paul Kachimba, a Legal Offic·er a the Ministry of Lands d po ed . ·n .an affidavit in opp·o·sition, that according · o, their record Shakumbila gave consent for th r -spon·d n to convert h I -nd in di pute from customary to leasehold t·enure and th t h I id do - proc dur -s we e followed, so there ~as no n ed o join he A torn y G . n ~ ra or Com · ission r of Land o·n : h basis h t . h y n d d , o c ·arify on th ownersh·p of the p op ·rty · .s the Commi ·sion r o . Lands could always be called upon as a witn ss. Th - record show hat on 4 ·h M rch, 2014 coun.- el for h - re,sp,ondent had replie·d verball. Y to the affidavit in s.upp,ort of· th· · applica ion for JOinder. Thereaf er co n 1 for the app -11 n s responded to the r·espondent's sub:missi·ons o,n th main matt r. • • J8 On 31 st March , 2014 the Attorney General was represented at the hearing by an Assistant Senior State Advocate. She relied on the affidavit in opposition to the application for joinder. In reply counsel for the appellants submitted that the reason they asked for the Commissioner of Lands to be joined was to resolve the issue that the ''plaintiff' raised in relation to ownership of land in view of the fact that the 2nd appellant had been in occupation of the land since 2008 and as such had nowhere else to go; and that the Ministry of Lands had an interest in the matter as it affected the interest of people who had no title and yet had lived on that land for a very long time. After hearing the parties, the court ordered that the Attorney General be joined to the proceedings as a third party . However, the Attorney-General did not attend court at the next hearing on 24th February, 2015. Counsel for the respondent took the view that the Attorney General did not want to be joined in spite of the order that they be joined and that the appellants should just close their case. In response, counsel for the appellants stated that the reason they wanted the Attorney General was to clarify some of the issues raised by the appellants pertaining to the land having been a J9 village. Counsel reluctantly closed th app, llan · case. , he . rt 1 djourn d th mat , r for judgm to 7 t h pril 2015 ·_ ils pointing out t nough tim · ·O be h ard on the issues raised by the appellants but th.at they w · ·e no forthcoming. On 14 h April, 2015 the Is appellan applied to arre . · judgmen mainl on th · basis that they w r not h ard on th, ir allegation hat the c·ert"ficate of title relating to th ,disp ted 1 ·. d wa · obt,ained by way ·of fraud. Th next da the ,court ... ta ed he d ivery o · the judgm nt un il interpartes h aring of the · pplic • on. The applicati.on was heard 10n 5th May, 20 1 5. Th ap1p llan w re -ow represen .- d by couns 1 of . Jaq sand Partn -rs, K.t e. On 22nd Jul , :2015 he c,ourt d · : 1ie·d th app,lication ·on th · basi that he appellan s · -_ere ably r presen , __ d b coun 1 from Legal Aid who could hav applied to co · rt for he m 1 er to b 1 heard b - a of oral ev·d nee if · he affi.dav·t v·denc did not suffic _ .. The next d ,ay th co1urt deliver,ed he ju.dgm 1ent appeal d against granting he respond nt vacant possess.on of ,_ s bj -c pr,operty. The ration.ale for th·e d ·cision was h .at accor 1ding to section 33 ·Of the Lands and Deeds Registry Act, Cap 185 a J • JlO b of fraud and ,' at ,h ap·pella· . s d"d no sho ha 1 he ob ained the c rtificate of titl fraudulently. The cour ther for found that the appellants were squatt,ers. Dissatisfied · ith the judgment, the appellan: appealed to this Court o , o grou d of app al a follows.: 1 .. T e lear,ned tri.al Judge erred in fact and in law when sh.e proceeded to make findings of fact based purely on a.ffidavit evidence whic.h was neith,er pr·oven nor ,admitte:d by way of hearing ·witnesses. 2. The learned trial Judg,e erred in fact and i.n law when she faile ,d to, order or direct that. the matt,er be heard by way of iull trial and thereby preventing the litigants in the Court below an oppor·tunity to be hear,d on the many contentiou.s iss·ues which ar·ose in. t . · e, case, particularly the allegation that a certificate of title was fraudulently obtaine,d. f il d Noneth le ' ak • ··n o ac,co , · t d argum nt. Th t o g ounds ·of appeal hav - b n argued oge her. The gist of the arguments is still · hat the affidavit in oppo.s:tion to originat·ng summons had raised riable issues ab,out the mann r in wh'ch the certificate of title had been obtained regardina th . d ' 1 · .. -- p -· d land w ich could only b resolved by wa of a full ri .1. Order 28 , 'ules 3 and 4 of th White Book as cited • • • Jll It was argued that the 1st appellant had tried to insist on calling witnesses and both had attempted to arrest the judgment on the basis that there were allegations of fraud and contentious matters which ought to have been resolved by way of trial. To support this argument, the appellants cited the case of Stanley Mwambazi v Morrester Farms Limited 1 . He also quoted section 13 of the High Court Act, Cap 27 concerning the duty of the trial court to ensure that all m atters in controversy are dealt with. It was argued that even in the absence of an application, the court could have invoked its jurisdiction as prescribed in Order 3(2) of the High Court Rules , Cap 27 which empowers the court, in all causes and matter, to make any interlocutory order which it considers necessary for doing justice , whether such order has been expressly asked by the person entitled to the benefit of the Orde r or not. We hasten to say that this argument relates to the ruling of the court below on the application to arrest delivery of the judgment which h as not b een appealed against. The appellants further contended that given that the disputed piece of land was purportedly converted from tr aditional land to state land, an inference may be drawn that the appellants were not • J12 at th e trial at which t h ey could call the witnesses tl-iey sought to distinctly prove the allegation of fraud . The case of Rosemary Phiri Madaza v Awadh Karen Coleen2 was quoted which dealt with the requirements to be met by a party alleging fraud. Finally, we were invited to invoke section 25(b) (iv) and (c) of the Supreme Court of Zambia Act, Cap 25 requ iring this Court to remit the case to the High Court for further hearing, with such instructions as regards the taking of further evidence or if it appears to this Court that a new trial should be held, to set aside the judgment appealed against and to order a new trial. In response, counsel for the respon dent submitted that ground 1 is anchored on the fact that judgment was passed against the appellants based purely on affidavit evidence which was neither proven nor admitted by way of h earing witnesses . He referred to Black's Law Dictionary 6 t h ed, 1995 at page 555 \\7here 'evidence' is defined as any species of proof, or probative matte r , legally pre sented at the trial of an issue , by the act of the partie s a nd through the medium of witnesses , records , docume nts, exhibits, concrete obj ects , etc, for the pur pose of inducing belief in the m inds of the court or jury as to their contention. • J13 It was argue d that by submitt ing that the docume ntary evidence relied on by the r espondent ought to have been furth er proved by oral evidence of witnesses, the appellants imply that documentary evidence carried less weight than or is somehow inferior to oral evidence, an implication which is a gross misconception with no legal basis. Counsel also quoted a book titled 'An Outline of the Law of Evidence' by Rupert Cross (full citation not provided) where the learned author states that the weight of evidence is a question of fact and is affected b y various factors. In response to ground 2, it was argued that the judge was on firm ground when she did not order that the matter b e heard by way of a full trial. Counsel cited Order 30 (21) of the High Court Rules, which empowers the court, if it thinks expedient, in addition to or in lieu of affidavits, to examine any witness viva voce , or r eceive documents in evidence, and to summon any p erson to attend to produce documents, or to be examined or cross examined, in like manner as at the hearing of a suit. It was argued that while the court has the power to proceed as indicated above, this power is a discretionary one, and if the court does not think it expedient to call for such evidence , then it is not compelled to do so. • J14 It was also argued that in this ca se, the Judge did not think it expedient to summon witnesses to provide viv.a voce evidence beca use the contentious issue raised by the appellants tha t the certificate of title held by the respondent was fraudule ntly obtaine d , was adequate ly addressed by evidence already b efore the court. Reference was furth er made to the affidavit evidence of Paul Kachimba on the application for joinder showing that all the nece ssary procedures for conversion of cu s tomary land into s t a te la nd and the acquisition of the certificate of title were duly, complied with, by the r e spondent. It was submitte d tha t faced w ith such compe lling evidence indicating a bse n ce of any fraud on the part of the respondent, it was not surprising tha t the trial judge did not think it expedient to call for further evidence, ora l or otherwise . It was furth er c ontended that in the absen ce of evide n ce or proof of fraud , s ave for a mere unsubs tantia te d c la im , a legally obtained certific ate of title, is in terms of section 33 of the Lands and Deeds Registry Act c onclusive evidence of owne r s hip . We were urged to dismiss the appea l with costs. We have p erused the record of a ppeal and the arguments by the parties. The two grounds of appea l are e ntwined and in the I JlS main , attack the court below for not conductin g a trial on the basis of the a llegation t hat the certificate of title for the subj ect property was obtained fraudulently by the respondent. Therefore , we shall deal with both groun ds together. The or iginating s u mmons in this case was issued under Order 1 13, rule 1 of the White Book which provides that: ''Where a person claims possession of land which he alleges is occupied sorely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of the order.'' In the rece nt case of Oscar Chinyanta and others v Alasia Building Construction Litnited and another3 we pointed out that for a claim of possession to be sustained unde r Order 113, there must b e no dispute as to ownership of the land in issu e. In the same case, we quoted the case of Liamond Choka v Ivor Chilufya4 where we held that the summary procedure under Order 113 can only be suitable for squatters and others without a n y genuine cla im of right or who have since been transformed into squatters . We further r e ferred to paragraph 113/8/2 of the White Book where the learned editors have stated that the court has no J ' ,dis,,cr io,n to prev, n h us · of this ummary proc, dur · h . r · the · ircums .ances .are uch as to b,ring them w·thin is t rms. We .lso quo·ted 1 h 1e c ase of Greater Lond·on c .o,uncil v Jenkin.s 5 whi h sh,ows that a landl,or·d is ntitl·ed to us.le h . umrnary pro , ed.ng · und,er Or·d·er 11.3 if he ,can dem·on: r,a ie his. righ . to do · o and ha th·· c,ourt has no discr·etion t o deny such use m · rely on the gr,ounds that the proceedings are rapid and s.u :mmary ,and that th, d.e£·· :ndants ,did not ,enter as s qua·tter . In the current case the res.pond n all g,ed tha 1. he ·. as ,h ,e r gi, ·: ered p 1r ,op,rie ! ,or 0 1f th,e· subj · ct p 1r"oper and th t the app, -11an: s entere,d into, or r main ·d in occup,ation of ·he land withou h1 · lice·nce or consent .. Th 1e qu stion then is whe , h r th app, ll,ant · w re squatters or tr s,passers and fi 11 wi 1 hin Order 113., rule 1 . The ap,p llants' con ,ention is ·that the alleg.a ion of fr,aud · ·a . a s" ·rious issue which could o,nly be res,olved by way of ,a trial and that th co,uld not bring witn sses to t .stify o p cifically p,rov - th fr,aud as th,ere was no trial. A . ·w ·. said earli, r . he court below fou.nd th,a , the certificat · ·o,f title for the subject property was 1conclusiv, evidence o·f own.ership in terms ·O,f sec,tion. .33 o·f the La,nds an.d Deeds Registry . Act ; that ·he· ap,p llants did no h . 1W ' • J17 th , he re pondent obtained the c rtificat of t. 1, fr udul tl · '""'" ... · d · hat he appellants were squatters. T qu st. 1on that arises is whether there was a s riou, o he responden as regards the owners ,ip of th subject prop rty to p,r v, nt him from u ing Order 113, rule 1 giv,en that paragraph 113/8/3 oft , White Book s ate · that h n th existence ·of a serious dispute is appar n o ·. p ·n iff, h , .. ,hould not use this procedure. We do not b li v - , in , • c1rc 1his case, that there was a serious ,dispute as to th - i 1 . o,f h. r ponden to the subject property to bar im from using hi . pr·oc dure. In our . iew, the court belo·w w·as on firm ground · h nit h ld, from th · ffidav·t evidence before it, that the app llan s did In fact, on 31 · March, 20 4 co ............ · 1 for the app -11ants told the the 2 n,d appellant had been in ,occupation of he l, · ,d inc - 20'Q,8. n ,d , r fore had nowhere else to go; and that the Mini try ,of L nd had an in _erest in the matter as it affected th,e interes , of p· -opl • J18 n 24 h ppellants di _- clos, d o he co,urt that the rea ,o,, th,e · want d h . · tt,o,rne . Gen · r .al -_.·. a . to clarify ome of h · iss e r ised b the app 1 11 n s per1 ai ing o h I.and h vi~ g been a vill .g .. nco,mpas .ed four v··11age and ha t .· e 2 nd appe l.ant' ances r . occupi·ed the I.and . rom s, early ,a 1907; h · ows tha . the app1ellants ar e only people ·n occupa ·a . o,f h s bj c , p o·per . Th,e did . o p odu e . n documents from t a t 1 - e - w r on he land b fo -e it wa conver ed f om ' s,to,mary land to lea:s · hold enure. M · r ov -r . t er ·· a evid n _ e · o h · eff e t · h -. t ft -r h C , i f had pprov,ed h r , spondent' a p ication, o ficer _. f om Mu bw .. D 1i trict Council w -n · on it to i spec t · -e land be or, t e Co cil appro · ed , e applica io . nd r commen 1d · d to h . omm ss1oner a . • • Lands o conv rt the and to 1 a h ,old 1en r . Ther · wa · O· 1evidence that anyone ,occupied th·e land at th 1 · tim ·Of ·n, p c ·ion. The only cone rn rais. d by the Min· stry ,of L -ds in 20,103 · a · • • J19 Shibuyunji. The respondent was advised to re-plan the farm to leave out the road and according to him that was done . The concerns raised by the Council in 2012 in the letter at page 67 of the record of appeal came seven years after the respondent had been issued with a certificate of title for the subject property. Further, if the 2 nd appellant entered into occupation of the land in 2008 , as stated by their counsel on 31st March, 2014 then he and his family could not have been in occupation of the land since 1907. Then again, if the 1st appellant entered the land more recently, as stated in their affidavit on the application for joinder, it means that both of them, entered the land when the respondent already held a certificate of title, and without his consent or licence. Coming to the allegations of fraud, the question is whether this issue required to be tried. The learned editors of the White Book have explained at paragraph 113/8/14, tha.t if the Court should hold that there is some issue or question that requires to be tried, or that for some other reason there ought to be a trial, it may give directions as to the further conduct of the proceedings, or may order the proceedings to continue as if begun by writ. J20 In ·R·osemary Phiri Ma daza v A.wadh Ka.ren Colee:n 2 e h 1eld that where fraud. i an issue in the p·roc -edings, a party wish.ng to ely o·n it mu· 1 ensure, tha 1 it is cle rl .and distinctly lleg· d an·d furt her th.at, at the _rial of the caus -, · h.e party alleging fr ud mu· . qually 1 ad eviden·c , so that the allega. ion is clearly and d·stinctl pro·ve·d. Th,e question is whether this m .at er shoul.d hav proceeded t ,o trial for the appellants to lead ·evidenc - to cl -arly and ,di inc 1 prove the allegation. Our answer is in then gative .. First, th appel.lants claimed a right to remain in occu:pat·on of he subj ct prop·erty land as villagers. How ver, a th cou b lo found, they did not pro e owners · ip or disprov tha th - w r squatters. In contrast, he respondent proved that h is 1 he regi er d owne , with superior· in er st. Th · all ga ions of fraud did no , in any way, alt r th· appellants' s -atu of be ·ng qu .. rs and he court will not protect squatters from eviction. condly, th · as cl ar affida it evidenc b he respond n and b the Commissio,ner of Lands, although it app·lica ion fo·r joinder, that the la"d dow procedur·es for conver·sion of customary land to leasehold tenur and for acquisition of the . . ,, J21 c rtif'cat,e of title re followed b t 1 ,e r -sponden . Con eq,' ntl · h allega ions of fra d were unfound d and am .· e · i picion. Thirdly it i . clear to u · that th app · 11 ·- ts i · h - judgm1en only b cause th y d id no, giv or. 1 ,e id nc, .. Ho v r, th , · co,rd ··hows tha they wer r pre · d by Legal Aid c,o n el and hat through their c,ounsel · t y full · p,arti ipat ,d in h proceedings. Therefore, they canno aft · rward, b h ard o mourn through anoth r couns -1, tha • he .affidavi · evid nc . a . no p 1rov n or admit.ted b·y way o·f h aring witn ss s .. Put · imply . he·re . as no, _ er~ous iss 1 e to try. Our view is that th two groun·d . of app, al lack merit. In he v nt, this app ,al is ,dismi s d i1 h co · s. w, uph·old the judg.men of the court b 1elow and gran immedi,a e p,o ses ion of the subje·ct propert o the respond nt. ( I. C. MAMBILIMA CHIEF JUS,TICE ' A,. M . SUPREME C,OURT . JUDGE R ;M-£ .. KAOMA ~ SU. PREME COURT JUDGE