Kasiya v Katulwende (Appeal No. 151 of 2021) [2023] ZMCA 233 (31 August 2023)

' . IN THE COURT OF APPEAL OF Z F z Appeal No. 151 of 2021 HOLDEN AT NDOLA � :�:;;::diction) (i[ , 7� 1 OF"'� "--- STANLEY KASIYA AND � � STRYJ:1/ ��, . ."t� Appellant FREDRICK KATULWENDE Respondent CORAM: Kondolo SC, Ngulube and Sharpe-Phiri, on 24 August 2023 and 31 August 2023 JJA For the Appellant: For the Respondent: Mr. G. Haakainsi of Messrs LM Chambers Mr. G. Lungu of Messrs Muleza Mwiimbu & Co JUDGMENT SHARPE-PHIRI, JA, delivered the Judgment of the Court Legislation referred to: 1. The Lands and Deeds Registry 185 of the Laws of Zambia Book) 1999 Edition 2. Rules of the Supreme Court of England (White of Zambia 3. The High Court Act, Chapter 27 of the Laws Rules, Chapter Cases referred to: 1. Robert Chimambo, Rhoda Zambia V Commissioner Environmental Council (S. C) Mung'omba, Of Lands, Safari Of Zambia, Wildlife Conservation Society of Limited, International (Zambia) (2008) Z. R 1 Vol. 1 Fingus Limited. v Chilemya, 2. Kajimanga 3. Davy Garet Appela -No. 50 of 2014 4. lntermarket SCZ No. 44 of 2014 Appeal No. 50 of 2014 Banking Corporation Zambia Limited v Priscilla Kasonde - v State Lotteries 5. Sithole v Dorothy 6. Phillip Mhango Commission 7. Anti-Corruption Ngulube Board (1975) Z. R. 106 (1983) Z. R. 61 (SC) v Barnet Development Limited (2008) ZR, (vol.1) 8. Nkongolo 9. Sablehand Farms v ZANACO Bank Limited and 2 Others (2005) Z. R. 78 Zambia Limited v Zambia Revenue Authority (2005) Z. R. 109 Jl 1 0. R. R. Samba, N. N. Samba and Lusaka Urban District Council v Paikani Mwanza, SCZ Judgment No. 16 of 2000 v Marcus Kapumpa Achiume (1983) ZR 1 (SC) Masauso Zulu v Avondale Limited v Van Zyl Brothers 11. The Attorney General 12. Wilson 13. Collett 14. General Council 15. B. P Zambia Plc v Zambia Competition -S. C. Z. Housing (1966) Z. R. 65 of Zambia v Mbangweta Total Zambia Limited Export Limited, Nursing Project Commission, Judgment (2008) ZR, (vol.2) and Total Aviation No. 21 of 2011 Limited (1982) ZR 72 Other authorities: 1. W. V. H. Rodgers. Winfjeld and Jolowicz on Tort, 16th Edition. London. Sweet and M<Jx.well. 2002 1.0 INTRODUCTION 1.1 This is a land dispute relating to the Kamaila area in Chisamba. It is brought before us by Stanley Kasiya (the Appellant) by way of an appeal against a judgment of Yangailo, J of the High Court given on 4 December 2020. 1.2 By that decision, Fredrick the trial Judge found Katulwende (the Respondent) as the rightful owner of Farm No. CHISA/LN- 8831 /275, Chisamba. She also ordered Kasiya not to trespass on or interfere with Katulwende's enjoyment of the subject property. 2.0 BACKGROUND 2.1 The background leading up to this appeal is that Katulwende commenced an action in the High Court on 18 September under cause No. 2017 /HP/ 1613 seeking a declaration that he is the rightful /275, owner of Farm No. CHISA/LN-8831 J2 Chisamba (subject property) and that the subject property was State land and not Customary. 2.2 He also sought an order of injunction restraining Kasiya and other unknown persons (cited as 2nd Defendant in the lower Court) from trespassing on the property, damages for trespass to land and unjust interference with his right to quiet possession and enjoyment of the property. Further, he sought damages for loss of steel poles, destruction of cement and quarry dust, plus labour costs, interest and costs of the action. 2.3 In his statement of claim, Katulwende contended that he was the registered owner of Farm No. CHISA/LN-8831/275, Chisamba and holder of certificate of title number 26271, issued to him in respect of the subject property. He further contended that he had possession of the subject property and his workers who were fencing his land were beaten up by Kasiya's workers, who also forcibly removed all the steel poles his workers put up for the fence. He further averred that following a formal complaint made by his employee to the police, the said persons were apprehended for malicious damage to property. 2.4 In his defence and counterclaim (shown at page 116 of the Record of Appeal) filed on 13 November 2017, Kasiya disputed that Katulwende was the legal owner of the subject property. He contended that the certificate of title relating to the said property was fraudulently obtained. He averred that the land in question was under customary tenure until 2016 when a J3 , ' certificate of title was issued to Katulwende in total disregard of a Court order. Kasiya denied the claim that he sent his employers or that he was to beat up Katulwende's workers entitled to any reliefs sought. 2.5 Kasiya filed a counterclaim in which he confirmed that a dispute had arisen in the Kamaila area in Chisamba on account of the Chisamba District Council and the Ministry of Lands allocating land to new people and displacing and disregarding the interests of residents and settlers in the area. He contended that as a result, an action was instituted in the Court by Royal Highness Chieftainess Mungule against the Chisamba District Council, Commissioner of Lands and the Attorney General, which matter was resolved by way of a consent order made between the parties on 28 April 2016. He stated that the legal suit represente d over 700 people who were beneficiaries of the said consent order. 2.6 Kasiya further contended that by virtue of this consent order, the parties agreed that the land in the Kamaila area would not be affected or altered in any way whatsoever. He averred that he was the defacto chairman of the Kamaila resettlement residents. 2. 7 In relation to Katulwende's claim that he was the registered title holder of CHISA/LN-883/272, Chisamba, Kasiya maintained that the certificate of title in the name of Katulwende was fraudulently issued as the land upon which this title was issued affects land belonging to two local J4 residents namely Victor Siagwaka and Patrick both Muchimba, beneficiaries of the consent order, and whose names appeared on the list of settlers and on the Social Survey Report. 2.8 Kasiya set out the particulars of the allegations of fraud as: (i) Issuance and acquisition of title to land already in of the defendant and subject of a consent possesswn order; (ii) Ignoring the consent order affecting the land in issue when pursuing the acquisition of the title; (iii) Obtaining title in a clandestine manner and behind the back of the settlers protected by the consent order. 2. 9 Kasiya countercl aimed for the following: i) A declaration that the creation of Farm No. CHISA/ LN- 883/275, Chisamba and issuance of title contravened the consent order of 28 April 2016; ii) An order cancelling the said title for being fraudulently obtained; iii) An order of injunction restraining the interference and enjoyment of the use of the land; damages for mental anguish and distress; iv) Damages for deprivation of the use and access to the land; interest and costs. JS 2.10 In the reply and defence to counterclaim, Katulwende denied that the certificate of title issued to him was fraudulently obtained; that the land in question was held under customary tenure and that his title to the land affected any land belonging to Victor Siagwaka or Patrick Muchimba. He alleged that the said Siagwaka and Muchimba had never complained about any encroachment of their land. 2. 11 Katulwende further was averred that the land in question originally under a forest reserve which was degazetted in 2015 and is now state land to which people were securing title including Muchimba who had a letter of offer for Farm No. CHISA/LN-8831/271, Chisamba. He therefore denied the counterclaims. 2. 12 The trial of this matter was heard in the lower court on 10 June 2019. Both parties testified in the as sole witnesses matter. The evidence of Katulwende was essentially that he had applied to the Ministry of Lands for land and was given an invitation to treat in 2016 which he had accepted and paid the charges stipulated. This culminated 1n an offer and subsequently certificate being issued in of title number 26271 his name. 2. 13 His further evidence was that after the issuance of title to him, he proceeded to build a two-bedroomed house on the property and undertook fencing of his boundary in phases and bringing poles and other requisite material onto the property. J6 l' 2.14 He contended that sometime between 21-25 August 2017, he had learned from his caretaker that his workers had been attacked by Kasiya's workers. Following a report made to the Momba Police, one of his workers Simon Kazemba was taken for medical treatment and Kasiya's employees were apprehended by the police and charged accordingly. 2. 15 In relation to the allocation of land, Katulwende referred the his Court to the layout plan of the Kamaila area, identifying property on the eastern side as plot no. 275; plot no. 264 to Siagwaka and on the southern side no. 271 to Muchimba respectively. He confirmed that he had not had any disputes with these two gentlemen regarding encroachment of any part of their property. 2 .16 Under cross-examination, Katulwende conceded that he had not placed the invitation to treat and the offer letter before Court and that he was an employee of the Ministry of Lands at the time he obtained an invitation to treat. With respect to the damages he was claiming, he also conceded that there were no documents before court showing the extent of the damage nor did he avail the court with quotations or receipts in relation to the damages. He indicated that he was not aware that his property was part of the land that was the subject of a consent order of 2016. 2. 1 7 The evidence of Kasiya in relation to the background leading up to this action was that following a request made by Chieftainess Mungule to the late President Sata for the Kamila J7 J' Forest No. 29 be allocated to the settlers, the forestry was degazetted by Dr. Scott for the residents that in 2015. Further, while the community were waiting to obtain title to the land, the Chisamba District Council began allocating plots to non­ residents of the area. 2.18 This prompted the Chieftainess to institute an action against the Chisamba District Council, the Commissioner of Lands and the Attorney into a General and which action culminated consent order being entered into whereby the parties agreed that the land the settlers were occupying in the Kamaila Forest would not be altered in any way. 2.19 Kasiya's further evidence was that following the entry of the consent order, the Council undertook a Social Survey, listing the names of the residents who would become beneficiaries, which survey was verified by the Chisamba District Council and a report generated. He stated further that Katulwende's name was not on the list of residents and therefore not part of the consent order. 2.20 This led to their belief that the certificate of title issued to him was fraudulently obtained to prove the point that Katulwende was not amongst the beneficiaries to the consent order. Kasiya drew the Court's attention to various pages of the Defendants' bundle of documents of the names of the beneficiaries of the Kamaila Forest as certified by the Ministry of Lands and Chisamba District Council He also stated that the issuance of title to Katulwende after the consent order was granted was J8 Io therefore a violation, and which affected Patrick Muchimba and Victor Siagwaka. 2.21 Kasiya denied that he sent his workers to beat up however that four of the Katulwende's employees. He admitted five people detained by the police were his employees and the fifth person was his brother. He also disputed that his workers had caused any damage to property as he had not been shown the extent of the damages. 2.22 He further lamented how quickly Katulwende had obtained title to the subject property suggesting that this was suspicious given that he worked for the Ministry of Lands, yet as ordinary citizens, they had not yet obtained their title deeds. 3.0 DECISION OF THE COURT BELOW 3. 1 After considering the pleadings and hearing of the the evidence witnesses at the trial, the learned three trial Judge formulated issues for her determination as follows: (i) Whether the plaintiff was the rightful owner of the subject property; (ii) Whether the plaintiff was entitled to damages for trespass on the subject land; and (iii) Whether the plaintiff was entitled to recover the sum of K28,850 from the 1st Defendant as special damages for Zoss of steel poles, destruction of cement and quarry dust, and labour costs. J9 '' 3.2 Addressing the first question of whether Katulwende was the rightful owner of property NO CHISA/LN-883/275, Chisamba, the trial Judge found that Katulwende was the registered owner of the subject property having applied for a piece of land to the Ministry of Lands and having obtained Certificate of Title No. 26271, in his name. 3.3 The trial Judge observed that Kasiya had raised a challenge about the issuance of title to Katulwende on the basis that the land in question was customary land and that the title was fraudulently issued by the Commissioner of Lands and in violation of the consent order of 2016. The Judge reviewed these contentions to establish whether there was sufficient legal basis to cancel the title issued to Katulwende in respect of the subject property. 3.4 On the first averment that the subject property was customary as contended by Kasiya, the trial Judge observed that the evidence clearly revealed that the land in question was initially part of the National Forest No. 29 in the Kamaila area of a cessation Chisamba and following order of 2015, the forest was de-gazetted. After de-gazetting of the National Forest, there was disagreement between the parties as to whether the land was held under Customary tenure or State Land. 3. 5 In the Robert Chimambo and Others v Commissioner of Lands and Others1, it was held as follows: "From the affidavi.t evi.dence and the submissions made before the trial court and indeed before us, it JlO • > was never in dispute that between 1983 and 1996 the entire land comprised in the former Local Forest No. 27 was, legally speaking, State land. Because it was State land and free from the provisions of the as a Forest Act, the 1st respondent was entitled, matter of law, to parcel out free portions of the land to deserving applicants." 3.6 Taking guidance from the Supreme Court of Zambia, the trial Judge found that following the cessation order of 2015, the property was acquired as State Land and not Customary Land as asserted by Kasiya. 3. 7 Regarding the second allegation raised by Kasiya that Katulwende acquired the property fraudulently and in violation of a consent order, the trial Judge placed reliance on Section 33, 34( 1) and 35 of the Lands and Deeds Registry Act.1 3.8 The court reiterated that a certificate of title shows conclusive evidence of ownership of the property by the holder except where the land is acquired by fraud. In referring to allegations of fraud, the trial Judge referred to the case of Kajimanga v Chilemya2 and Davy Garret3 and Intermarket Banking Corporation Zambia Limited v Priscilla Kasonde4. In the above cases, the Courts guided that charges of fraud must be pleaded with utmost particularity and fraudulent conduct clearly and distinctly proved by evidence. 3.9 Reviewing the evidence of fraud before her, the Judge observed that Kasiya's averments were that the Commissioner of Lands Jll • J had wrongly proceeded to issue a certificate of title to Katulwende despite him not being on the Social Survey Report List or being a party to the consent order. In the opinion of Kasiya, this was an indication of fraud. The Judge held that the evidence of Kasiya was insufficient to prove that Katulwende had acquired the property by fraudulent means. 3.10 The Judge held that the consent order did not restrain the Commissioner of Lands from issuing land in the Kamaila area to other persons. That the order only restrained the Commissioner of Lands from altering or adjusting the portions of land allocated to the local settlers who were listed on the Social Survey Report. 3. 11 The Judge was of the considered view that Kasiya had failed to demonstrate that the Commissioner of Lands, by allocating the subject property to Katulwende, had interfered in any way with the land allocated to the beneficiaries of the consent order. 3.12 The Judge accordingly found that in acqu1nng title to the subject property, Katulwende did not in any way breach the terms of the consent order as the evidence before the lower Court indicated that the portion of the Kamaila area on which the subject property is located does not in any way interfere with the land allocated to the beneficiaries of the consent order. The trial Judge also found that there was no evidence before her that Mr. Katulwende was aware of the consent order. J12 3.13 It is noted that Kasiya's further allegations of fraud were that Katulwende worked at the Ministry of Lands and had managed to obtain title within a period of 6 months. That he had an unfair advantage over the settlers in the area. The Judge found that Kasiya did not demonstrate how Katulwende the hastened process of obtaining the certificate of title to the subject property. 3.14 The Judge concluded that Kasiya had merely used inferences to attempt to prove the allegations of fraud, which was not permissible and therefore he had failed to support his allegations of fraud which required a higher standard of proof as guided by the Supreme Court of Zambia in the Sithole v The State Lotteries Board of Zambia5. 3.15 Turning to the claim for damages for trespass on the property, the Judge relying on the definition of trespass to land, of the learned authors of Winfield and Jolowicz on Tort1 observed that for trespass on land to arise, there must be unjustifiable interference with possession of land. The Court found that although there was evidence that 5 people had trespassed on Katulwende's land, there was no proof that this was at the instance of Kasiya. The Judge therefore found the claim for damages for trespass to land against Kasiya unsuccessful. 3.16 Regarding Katulwende's claim for entitlement to K28,850 as special damages for the materials that he had lost at the subject property, the trial Judge found that Katulwende had not adduced sufficient evidence to support his claim for special J13 damages as guided by the Court in the case of Phillip Mhango V Dorothy Ngulube6. 3.17 The lower Court concluded by declaring Katulwende as rightful owner of Farm No. CHISA/LN-883/275, Chisamba. The Judge ordered Kasiya and others unknown defendants to restrain from trespassing on and interfering rights with Katulwende's to enjoy the property. The Judge denied the claims for damages for trespass and special damages. 3.18 The lower Court also denied Kasiya's counterclaim of fraud. The trial Judge was of the considered view that the allegations of fraud were unsubstantiated. Katulwende was awarded costs for partially succeeding with his claims. 4. 0 THE APPEAL 4.1 Being dissatisfied with the High Court judgment, the Appellant brought an appeal before us by way of Notice and Memorandum filed on 6 January 2021 advancing five grounds of this appeal as follows: (i) That the learned Judge erred in law and in fact when she held that no evidence of fraud was adduced by the Appellant when sufficient evidence to that effect was adduced. (ii) That the learned Judge misdirected herself in law and in fact when she held that the issuance of the Certificate of Title to the Respondent by the J14 Commissioner the of Lands did not breach or violate consent judgment concerning Kamaila area. (iii) That the evaluation of evidence by the learned Judge was unbalanced as the evidence of the Appellant was quoted out of context or not accurately quoted thereby distorting the Appellant's evidence to favour the Respondent. its (iv) The Court below did not properly exercise discretion when it awarded full costs to the Respondent even when the Respondent only partially succeeded in his claims. (v) The Court below erred in law when it proceeded to close the matter and held that no reasons were advanced for the absence of the 2nd defendants in the court below without proof of service by the Respondent on them of the hearing and further forced the Appellant to proceed with defence after a request for adjournment on valid grounds. 5.0 ARGUMENTS IN THE APPEAL 5.1 The Appellant and the Respondent filed their heads of argument on 12 July 2021 and 15 November 2022 respectively. The arguments have been considered and although not being reproduced verbatim will be referred to later in the judgment. JlS 6.0 THE HEARING OF THE APPEAL 6.1 The appeal was heard on 24th August 2023. The Appellant and Respondent were represented by Mr. G. Haakainsi and Mr G. Lungu. Both counsel relied entirely on their detailed Heads of Arguments filed earlier and the court reserved its judgment. 7 .0 DECISION OF THIS COURT 7 .1 We have carefully reviewed the evidence on record, the judgment sought to be impugned and the arguments of the respective parties. There are 5 grounds of appeal which have been reproduced in paragraph 4.1 above. We propose to deal with the grounds of appeal independently. 7.2 The Appellant's contention in the first ground of appeal is that the trial Judge erred when holding that no evidence of fraud was adduced by the Appellant, when in the view of the Appellant, sufficient evidence of fraud was given at the trial to prove that the title issued to the Respondent was on account of fraud. 7.3 Before reviewing the evidence presented in the lower court in relation to the Appellant's counterclaim that the Respondent had fraudulently acquired his certificate of title, we will outline the provisions of the law vis-a-vis the effect of issuance of a certificate of title relating to ownership of land and how such proprietorship may be challenged and ultimately nullified. J16 7.4 The law relating to ownership of land and the effect of issuance of a certificate of title is well settled. As rightly cited by Counsel, the provisions of Section 33 of the Lands and Deeds Registry Act which espouses that a certificate of title is conclusive evidence of ownership of land as from date of issue. It provides more specifically that: 'A Certificate of Title shall be conclusive as from the date of its issue and upon and after the issue thereof, notwithstanding the existence of any in any other person estate or interest, whether derived by grant from the President or otherwise, which but for Parts III 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 folium of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever: (a) Except the estate 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 J17 (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.' 7 .5 This legal position has been affirmed by the Supreme Court of Zambia in a plethora of authorities, one such matter being the case of Anti-Corruption Commission v Barnet Development Corporation Limited7 in which the Supreme Court held that a certificate of title is conclusive evidence of ownership of land by the holder of the certificate under Section 33 of the Lands and Deeds Registry Act. 7 .6 Consequently, the assertion is that a certificate of title is conclusive evidence of ownership of land provided there is no challenge to the title based on fraud. The Supreme Court affirmed in the above case, that a certificate of title can be challenged and cancelled on account of fraud or for reasons of impropriety in its acquisition by virtue of Section 34 thereof. 7. 7 Section 34 of the Lands and Deeds Registry Act provides as follows. '(1) No action for possession, or other action for the recovery of any land, shall lie or be sustained against the Registered Proprietor holding a Certificate of Title for the estate or interest in respect to which he is registered, except in any of the following cases, that is to say: J18 (a) the case of a mortgage as against a mortgagor in default; (b) the case of the President as against the holder of a State Lease in default; (c) the case of a person deprived of any land by fraud, as against the person registered as proprietor of such land through fraud, or against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud; (d) the case of a person deprived of or claiming any land included in any Certificate of Title of other land by misdescription of such other land, or of its boundaries, as against the Registered Proprietor of such other land, not being a transferee, or deriving from or through a transferee, thereof bona fide for value; (e) the case of a Registered Proprietor claiming under a Certificate of Title prior in date in any case in which two or more Certificates of Title have been issued under the provisions of Parts III to VII in respect to the same land. (2) In any case other than as aforesaid, the production of the Register or of a copy of an extract therefrom, certified under the hand and seal of the Registrar, shall be held in every court of law or equity to be an absolute bar and estoppel to any such action against the Registered Proprietor of land the subject of such action, and in respect of which a Certificate of Title has been J19 issued, any rule of law or equity to the contrary notwithstanding.' 7.8 The foregoing prov1s10ns illuminate that, a challenge to a certificate of title, as envisaged by law, can only be sustained 1n certain circumstances such as fraud, impropriety, misrepresentation, or mistake. 7.9 The question before us under this ground of appeal is whether the Appellant substantiated the allegations of fraud against the Respondent in the lower court to warrant the cancellation of the certificate of title issued to the Respondent in respect of CHISA/LN-883/275, Chisamba? 7 .10 With respect to allegations of fraud relating to the acquisition of a certificate of title, the Supreme Court stated in the case of Nkongolo Farms Limited v Zambia National Commercial Bank Limited, Kent Choice Limited (In Receivership) and Charles Haruperis that: 'Where a party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence by another party he must supply the necessary particulars of the allegation in the pleadings. Fraud must be precisely alleged and strictly proved. There is no presumption of fraud. In the instant case, fraud was not alleged.' J20 7 .11 Further, in the case of Sablehand Zambia Limited v Zambia Revenue Authority 9 the Supreme Court stated that: 'Allegations of fraud must, once pleaded, be proved on a higher standard of proof, than on a mere balance of probabilities, because they are criminal in nature.' 7 .12 Similarly, in the case of Kajimanga Chilemya the Supreme Court echoed its position that: 'A certificate of title is conclusive evidence of ownership of property and that it can only be nullified if fraud in acquisition is proved. The Court further held that an allegation of fraud must not only be clearly and distinctly alleged, but it must also be clearly and distinctly proved by evidence. The standard of proving an allegation of fraud is higher than the civil law standard of proof.' 7. 13 The Courts have provided clear guidance that the particulars of allegations of fraud must be clearly and distinctly pleaded and proved by evidence. There can be no presumption of fraud. In persuading a court to cancel a party's the certificate of title, applicant must precisely indicate the allegations of fraud. The matters pertaining to fraud must also be specifically proven by evidence. The onus is on the party making the allegation of fraud to specifically prove the same beyond a mere balance of probabilities. J21 J 7 .14 The foregoing is instructive on the necessary requirements to succeed with a challenge against a holder of a certificate of title. In addressing ground 1 on whether the trial Judge erred in finding that there was insufficient evidence of fraud, we will consider whether Kasiya clearly and distinctly proved the allegations of fraud to warrant the cancellation of the title. Katulwende's 7 .15 The Appellant's contention is that there are laid down procedures and processes for one to acquire title to land and by the Respondent failing to produce vital documents, he had failed to demonstrate that these procedures had been followed when he acquired his title. This failure by the Respondent had brought on suspicion that the process of acquiring the certificate of title was fraudulently undertaken. 7.16 The Respondent insisted that the trial Judge was on firm ground in finding that the Appellant had failed to adduce evidence of fraud as the Appellant had indeed failed to adduce evidence to support the allegation of fraud as fraud was required to be proved on a higher standard than a balance of probabilities. Counsel highlighted that although the Appellant had alleged that evidence was adduced to show that the consent judgment was fraudulently in the circumvented issuance of title to the Respondent, during trial, the Appellant indicated that he could neither say yes or no that the Respondent fraudulently obtained the certificate of title. J22 7 .17 Counsel cited the prov1s10ns of Section 33 and 34 of the Lands and Deeds Registry Act and the case of Anti­ Corruption Commission v Barnet Development Limited which provide that a certificate of title is conclusive evidence of ownership of land. He also cited the case of Kajimanga Chilemya where the Supreme Court echoed the above sentiments and directed that allegations of fraud must be clearly and distinctly alleged and proved. Counsel reiterated that the Appellant did not adduce any evidence of fraud, not of proof. even on a lower standard 7.18 The Respondent's counsel argued that the facts of the R. R. Sambo NN Sambo10 case were distinguishable from this case, as in this case, the people in occupation of the land did not have title to the land they occupied. They were all squatters in forest no. 29 Chisamba until degazetted in 2015. Counsel also argued that there was no obligation on the part of the Respondent to produce his application letter, invitation to treat, offer letter or the receipts for payment of service charges as once a certificate of title was issued, it entailed that the requisite processes were effected. 7 .19 The contention by Kasiya in the counterclaim was that Katulwende had fraudulently acquired title to the subject property. The specifics of fraud raised by Kasi ya in his pleadings were that Katulwende had acquired title to land that was already in the possession of the Defendant; that the land was the subject of a consent order and that the Commissioner of Lands and Katulwende had ignored the consent order when J23 illegally pursuing acquisition of title without the knowledge of the settlers of the consent order. 7 .20 A review of the record of appeal reveals that the evidence adduced by Kasiya before the trial Judge in relation to these allegations of fraud were that Katulwende worked for the Ministry of Lands and obtained title to the subject property within a short period of time. This had raised suspicion that he had obtained the title fraudulently. 7. 21 On the issue that the land was already in the possess10n of others, Kasiya contended that the land issued to Katulwende affected Victor Siagwaka and Patrick Muchimba. The contention was that they were beneficiaries of the consent order, and their names appear on the social survey report. Despite this contention, Siagwaka and Muchimba were not joined as parties to the action. It was Kasiya's further contention that he was de facto chairman of the Kamaila area and therefore authorized to bring the claim on behalf of the two gentlemen. However, there was no documentation or paperwork before the trial court to substantiate this contention that Kasiya was the chairman of the settlers of the Kamila area and that he had authority to act on behalf of the two gentlemen nor did the two gentlemen appear as witnesses in Court. Therefore, we are at a loss as to what authority Kasiya had to bring this action. 7.22 There was no evidence before the trial Judge to show that there was an encroachment in relation to the portion of land J24 allocated to Katulwende over land belonging to the two gentleman or any other persons. A close review of the Data Verification Report on Former Forest No. 29, Chisamba, found at pages 150 to 156 and 168 to 192 of the Record of Appeal reveals their numbers as distinct from that of Katulwende. Furthermore, as rightly pointed there out by the Respondent, were no complaints brought against him by the said two gentlemen referred to by Kasiya or any other persons. 7 .23 Counsel for the Appellant asserted that Kasiya had adduced sufficient evidence before the lower court of fraud in Katulwende's acquisition of the title to the subject property. In this regard, he referred to the fact that Katulwende had not evidence produced relevant to show how he acquired a certificate of title to the subject property. He averred that this raised suspicion that the process of obtaining the title was fraudulent. 7.24 Kasiya's contention in his arguments was that Katulwende had not produced vital documents to show how the property was conveyed to him. The viewpoint was that the absence of these documents was an indication of fraud. Although this point was raised in the arguments, it was not pleaded amongst the particulars of fraud. Consequently, Katulwende was not put on notice that he ought to respond to this allegation. The implication is that there was a responsibility for Katulwende to have produced his offer letter. J25 7 .25 The above argument is inconsistent with the purpose of pleadings, which has been well settled 1n numerous authorities. Matters must be pleaded for a party to know what they are up against. Had Kasiya brought this allegation of the whereabouts of the conveyance documents, Katulwende would have known that he was required to produce these documents. In fact, during cross examination, that Katulwende confirmed he had the invitation to treat given to him by the Commissioner of Lands, although he had not placed it before court. Katulwende cannot therefore be faulted for not producing these documents. Kasiya not having specifically pleaded the absence of vital documents as a ground of fraud, Katulwende had no legal obligation to produce these documents and cannot be questioned for not having done so. This contention appears to have emerged as an afterthought by Kasiya's counsel as it was not included with the particulars of fraud in the pleadings. 7.26 As enunciated by the Supreme Court, there can be no presumption of fraud. Allegations of fraud must be clearly alleged and distinctly proved by evidence of the parties. Kasiya did not establish any pnma f acie case of fraud in the acquisition by the Respondent We of the certificate of title. therefore agree with the learned trial Judge that the Appellant did not adduce sufficient evidence of fraud. This first ground of appeal therefore fails. 7 .27 The second ground of appeal questions the Commissioner of Lands authority to issue title to the Respondent to the subject J26 property in view of the consent order of the Court of 26 April 2016. Counsel for the Appellant argued that the trial Judge erred when she found that the Commissioner of Lands did not breach or violate the consent order by issuing a Certificate of Title to the Respondent. Counsel highlighted that at the time that title was issued to the Respondent on 26th October 2016, the consent order, which prohibited alteration or adjustment of the beneficiaries' portions of the land, was in existence and the disobedience of the consent order entailed that the issuance of title to Katulwende was illegal. The further contention is that the two settlers, namely Victor Syagwaka and Patrick Muchimba, who are in possession of the land were affected by the issuance of title to Katulwende. 7 .28 The Respondent argued that the trial Judge was on firm ground when she held that the Commissioner of Lands did not breach or violate the consent order when issuing title to the Respondent. According to the Respondent, the evidence on record reveals that after the social survey was conducted and allocation of the Forestry there land to the local settlers, remained some pieces of State land under the custody of the Commissioner of Lands. It is these other pieces of land that the Commissioner of Lands allocated to other persons including the Respondent. The further contention is that the consent order did not prohibit the Commissioner of Lands from allocating these remaining portions of land to other persons apart from the ones appearing on the social survey report. Although, the Respondent is an employee of the Ministry of J27 Lands, there is no law that prohibits from such employee obtaining land in Zambia. 7 .29 The further contention of the Respondent is that there was no evidence adduced establishing that the Respondent was allocated land belonging to the Appellant or other third parties, or that Muchimba and Syagwaka are affected by the allocation of the subject property to Katulwende. There were never any complaints of encroachment by such third parties. Also, the Respondent was not a party to the consent order, did not derive any benefit therefrom and cannot therefore be censured over its substance. 7 .30 In considering whether the Commissioner of Lands violated the consent order issued we begin by by the High Court in 2016, reviewing the terms of the consent order shown at pages 147 - 148 of the record of appeal which provides as follows: 'The parties having agreed the terms of settlement and consenting to an Order to be drawn on such terms: AND BY CONSENT of the applicant and the 1st, 2nd, and 3rd Respondents herein: IT IS HEREBY ORDERED that: 1. The premise of the agreed settlement shall be the Social Survey Report and the numbered lay map being numbered 1528A2, field survey, 03/ 2015 conducted by the 1st Respondents and/ or its agents or servants in or about March 2016. 2. The beneficiaries recognized or ascertained in the Social Survey Report shall not have their allocation of the portions of the land altered or adjusted by any party, institution the or agent, whether J28 same are parties to these proceedings or not and ALL such parties, institutions or agencies SHALL BE and ARE HEREBY retrained from interfering with, adjusting, or varying such allocations of the portions of land set out herein to the extent that the said beneficiaries of offer. adhere to the terms and conditions 3. The beneficiaries named and recognized as being those beneficiaries who had been cleared by Chibombo District Council and recommended by the same to the 2nd Respondent for approval, and named in the Social Survey Report, shall not be subject to any interference, adjustment, or variation and shall be rendered every assistance to perfect title of the same. 4. The parties shall commence effecting the terms and conditions numbered 1 to 4 above within a period of not exceeding thirty (30) calendar days from the date of this order in full and final settlement of the Applicant's claim. IT IS FURTHER ORDERED that the parties hereto bear their own costs.' 7 .31 By virtue of an agreement of the parties, being, Chieftainess Mungule, the Chisamba District Council, the Commissioner of Lands and Attorney General, a consent order was drawn up to the effect that the settlers of the Kamaila area be allocated portions of land that they occupied in accordance with the Social Survey Report. The evidence of the Respondent on record is that the land allocated or to him was not occupied allocated to any other settler. The consent order does not refer to the land of the Kamaila area that remained unallocated. J29 ' . 7 .32 The Appellant's argument that the Commissioner of lands was prohibited by this consent order from allocating land to others is in our opinion, flawed. This land having been degazetted from Forestry became State land, to which the Commissioner of Lands was at liberty to allocate to the Respondent as he did. The Judge was therefore on firm ground when she found that the Commissioner of lands did not breach or violate the terms of the consent order, and we so find. The 2nd ground of appeal therefore fails. 7.33 The contention of the Appellant in the third ground of appeal is that the trial Judge improperly evaluated the evidence before her, more particularly that it was unbalanced, not accurately quoted, or quoted out of context in favour of the Respondent. 7.34 Counsel contended that the alleged by the encroachment Respondent could only have been established by conducting a physical site visit of the piece of land subject of litigation and not by forcing a witness to establish an encroachment on paper. 7 .35 Counsel referred this Court to the location plan shown at page 139 of the record as well as page 265 thereof showing a record of the proceedings where the Appellant that it had indicated was difficult to tell if there was any encroachment looking at pages 275, 271 and 264. In relation to this ground, the Appellant complained about the Court's stated that he was not a surveyor finding that 'DWI and could therefore not establish that the land acquired by the plaintiff interfered with BO or encroached on any land that was allocated to the settlers of the Kamaila area. ' 7.36 Counsel for the Appellant contended that the trial Judge did not properly evaluate the Appellant's evidence but distorted it in favour of the Respondent. Counsel cited the case of The Attorney General v Marcus Kampumba Achiume11 where the Supreme Court guided that the trial court should not make an unbalanced evaluation of the evidence. 7.37 The third ground of appeal criticizes the trial Judge's evaluation of the Appellant's evidence in relation to the Appellant's testimony over the encroachment. Counsel for the Respondent argued that the lower Court was on firm ground in finding as a fact that the Appellant failed to establish that the land acquired by the Respondent interfered with or encroached on land of the settlers of the Kamaila area. 7 .38 Counsel maintained that the trial Judge rightly found that the Appellant was not a surveyor and hence unable to show the Court the extent of the perceived That the encroachment. Court made the evaluation based on the Appellant's evidence that he was not a surveyor and it was thus difficult for him to establish the encroachment. It was further contended that the Appellant to invite was at liberty a surveyor to court as witness and could have produced a survey diagram if the site or location plan did not accurately reflect the demarcations on the ground. J31 . ,, . 7.39 Counsel contended that the argument raised by the Appellant in the heads of argument at page 6 that the allegations of encroachment could only have been established by conducting a view of the piece of land subject of litigation was therefore an afterthought. We were reminded of the holding v Avondale Wilson Masauso Zulu Housing Project in the case of Limited12 and urged not to interfere with findings of fact of a trial Judge. 7.40 As rightly pointed out by the Respondent's counsel, the trial Judge evaluated the evidence before her that the Appellant was unable to demonstrate to the Court the extent of the perceived encroachment. There was no evidence in the lower Court, be it a Survey report, site or location plan reflecting any encroachment by Katulwende in the Kamaila area on the properties of Syagwaka and Muchimba. The two gentlemen did not appear before the lower court nor was evidence adduced by them to prove an encroachment on their land, especially as Kasiya conceded that he was unable to confirm the extent of the encroachment, nor did he lead evidence from a surveyor to prove allegations of encroachment. 7.41 We are therefore at a loss as to how else the Appellant and his counsel expected the trial Court to evaluate the Appellant's evidence which indicated that he was unable to establish or confirm whether the Respondent had interfered with the property allocated to other beneficiaries in the Kamaila area. The argument by Counsel for the Appellant expecting that the Court ought to have initiated a site visit to the property is flawed. The Appellant having brought these allegations, it was J32 ,. 'I • incumbent on the Appellant to prove his allegations. We find that the learned trial Judge was on firm ground in finding as she did in relation to the evidence of the Appellant on this issue. Ground 3 therefore fails. 7.42 In relation to ground 4, the Appellant argued that the Court erred in awarding costs of the action to the Respondent, despite the Respondent having only partially succeeded. Counsel for the Appellant argued that the trial Court did not exercise its discretion properly when awarding full costs to the Respondent despite the Respondent having only partially succeeded in its claims. The provisions of Order 40 Rule 6 of the High Court Rules and the case of Collett v Van Zyl Brothers 13 were cited in aid of this submission. Counsel argued that awarding costs against the Appellant who was sued in a representative capacity was harsh. 7.43 The Respondent opposed the fourth ground of appeal asserting that an award of costs is entirely in the discretion of the Court and a court is required to exercise its discretion judiciously. The further contention is that in this case, the trial Judge was on firm ground in awarding costs to the Respondent as the successful party as costs generally follow the event. Counsel cited the case of General Nursing Council of Zambia v Mbangweta14 to support their submission. 7.44 The law on costs is well settled by the Supreme Court in numerous cases. It is certain that an award of costs is within the discretion of the Court, and this discretion ought to be J33 exercised judiciously. The Supreme Court in the case of B. P. Zambia Pie V Zambia Competition Commission Total Aviation and Export Limited Total Zambia Limited15 affirmed this trite position when it held that 'under Order 62 (3) of the Rules of the Supreme Court, the award of costs is in the discretion of the court, and it is also the trite law that this discretion should be exercised judiciously'. 7.45 Given that the Respondent was successful in his claim as beneficial owner of Farm no. CHISA/LN-883/275, Chisamba and for an order for an injunction restraining the Appellant from interfering with his quiet possession of the subject property, we find no justification to falter the trial Judge's decision to award costs to him. Moreso, that the Appellant was unsuccessful in his counterclaim. This ground of appeal therefore fails. 7.46 The contention of the Appellant in the fifth ground of appeal is that the trial Judge erred by forcing the Appellant to proceed with its defence despite a request for an adjournment having been made on valid grounds; and secondly, proceeding to close the case holding that there were no reasons advanced for the absence of the 2nd Defendant. 7.4 7 Counsel for the Appellant argued that the trial Court forced the Appellant to proceed with his defence despite a request for an adjournment having been made on valid grounds. The further argument is that the court proceeded to close the case holding that no reasons were advanced for the absence of the 2nd J34 Defendant. Counsel argued that the onus was on the Respondent to prove that service of process had been effected on the 2nd Defendant. Counsel stated that the Court ought not to have proceeded with trial without proof of service of process on the 2nd Defendant on record. Further, that the court had an obligation to allow the application to adjourn where valid grounds had been advanced. 7.48 The Respondent highlighted that the notice of appointment of Advocates filed by Counsel for the Appellant only related to the Appellant. Therefore, it is irregular for Counsel to purport to represent the 2nd Defendant, unknown persons who did not appear in the court below and are not Appellants in this appeal and did not retain Counsel to represent them. Counsel contended that it is irregular for the Appellant's Counsel to raise this ground of appeal and purporting to represent non­ existent parties in the appeal who did not appoint the Appellant's counsel as their Advocates. The Respondent reiterated that there was no complaint against him in the appeared matter over the Kamaila area and the reason no-one before Court as 2nd Defendant either as witness or complainant. 7.49 Counsel for the Respondent also pointed out that the evidence in the affidavit in support of the motion to adjourn gave no indication of the adjournment being sought to accommodate the 2nd Defendant, unknown persons. On the contrary, paragraph 5 thereof, referred to the need for an adjournment J35 because the Appellant's Counsel was attending a conference out of jurisdiction. 7.50 A review of the record of appeal particularly pages 228, 233 and 235 reveals that the matter first came up for a hearing of an injunction application on 17 January 2018, the 2nd Defendant who were named as 'others unknown' were not before Court and no issues was raised by any party. The second time the matter came up was on 15 May 2019 when it was scheduled for commencement of trial, the Respondent's Counsel (Plaintiff in Court below) was absent, and the Court was not satisfied with the reasons advanced for his absence and the Court below lamented that the matter formed one of the backlog matters that needed disposal. the This prompted Court to strike off the matter with liberty Upon to restore. restoration of the matter, commencement of trial was scheduled for 10 June 2019. 7.51 When the matter came up, the Respondent's Counsel sought to proceed with one witness and call other witnesses on another date, but the Court ordered trial to proceed as adequate notice had been given and parties were aware that only one day had been allocated for the trial. The matter proceeded accordingly. During all these dates, the 2nd Defendant, unknown persons never appeared, nor did they join the proceedings to raise concern over encroachment At the end of of their property. trial, the Court also inquired if the parties intended to file submissions which they affirmed they would do and judgment was reserved. J36 7.52 The parties in the court below were fully aware of the non­ joinder of other persons as the 2nd Defendants and of their absence before the lower court. At no time did either of the parties for the raise issue with this fact. It is mischievous Appellant to raise this as an issue before this court, when it could have been adequately addressed in the court below. We find no basis to entertain This this ground on that account. ground also fails. 8. 0 CONCLUSION 8.1 Given the foregoing, the Appeal is unsuccessful in its entirety, and we dismiss it accordingly. 8.2 We order the Appellant to bear the Respondents costs of this appeal, to be taxed in default of agreement. � ---"- -- M. M Kondolo, COURT OF APPEAL JUDGE SC P. C. M Ngulube � "-- ➔ ;.:; Sharpe-Plliri COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE 137