Still Water Farms Ltd v Mpongwe District Council and Ors (Appeal 90 of 2001) [2003] ZMSC 144 (4 June 2003)

N THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA APPEAL NO. 90/2001 (Civil Jurisdiction) BETWEEN: STILL WATER FARMS LIMITED APPELLANT AND MPONGWE DISTRICT COUNCIL COMMISSIONER OF LANDS DAWSON LUPUNGA BAUTIS KAPULU 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Mambilima, JJS on 4th June 2002 and 4th June 2003 For the Appellant: For the 1st & 2nd Respondents: For the 3rd & 4th Respondents: Dr J B Sakala of Sakala and Company None Appearance Mr Z M Muya of Muya and Company (not yet on record) JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Cases and Laws referred to: 1. Siwale vs Siwaie - SCZ Appeal No. 24 of 1999 2. Mupwaya vs Mbaimbi SCZ Appeal No. 41 of 1999 3. Taylor Fashions vs Liverpool Victor Trustees Limited [1981] 1 ALL E. R. 897 4. Sections 3 (4)(c) and 7 (1) (2) of the Lands Act Cap 184 5. Chiefs Act Cap 287 6. Statutory Instrument No. 7 of 1964 7 Treaties A History of the Bembas by Dr Andrew Roberts Right at the outset of the Appeal Mr Muya informed the court that he had just been given a brief and as such he was not on record as appearing for the 3rd and 4th Respondents. Therefore the court did not give him audience. It nonetheless proceeded to hear the Appeal as per Rule 71 (1) of the Supreme Court Rules Cap 25. In any case one of the Respondents Mr Kapulu was in attendance. J2 In this Appeal the Appellant Company incorporated in Zambia, which was the Appellant before the Lands Tribunal is challenging the Lands Tribunal's decision in favour of the four Respondents. Before the Lands Tribunal the Appellant appealed to the Lands Tribunal seeking confirmation of the allocation of the Farm Land No. 013 Mpongwe to it. The evidence for the Appellant given by Mr Van Rensberg who was one of the shareholders in the Appellant Company was that he came to Zambia in 1993 on Entry Permit No. 48050. That permit entitled him to enter and re-enter Zambia and remain in Zambia and for a profit to be a farmer and to be self-employed. It was issued to him on 28th September 1996 by current Chief Lesa. This Mr Van Rensberg had an Investor’s License No. 408/02/93 issued to him on 13th December 1994. His evidence also is that he approached the current Chief Lesa seeking allocation of some land to the company which he formed and registered as the Appellant Company. He testified that the current Chief Lesa after visiting and looking at the land in question consulted the traditional councilors. They all agreed to the Chief allocating the Appellant Company 107 hectares of land in Chief Lesa’s area in a letter dated 28th September 1996. Subsequently Chief Lesa and his councillors recommended to the 1st Respondent this allocation of land to the Appellant Company. The 1st Respondent held a meeting on 5th March 1999 at which it was resolved that inspite of the objections by the 3rd and 4th Respondents the land in question was to be allocated to the Appellant Company. The 1st Respondent held another meeting on 23rd April 1999 at which meeting it approved this allocation of this land to the Appellant Company. The council secretary of the 1st Respondent then communicated this approval of the allocation of land to the Appellant Company to the 2nd Respondent in a letter dated 12th May 1999 recommending the issuance of title deeds to the Appellant Company. The Appellant's case also is that it was very strange that the same Provincial Lands Officer despite all the foregoing events wrote a letter to the 1st Respondent directing it to revisit this decision of allocation of land to the Appellant Company J3 allegedly because the 3rd and 4th Respondents claimed the said farmland as theirs as it was given to them by the predecessor of the current Chief Lesa. The current Chief Lesa in reaction wrote a letter dated 31st January 2002 to the Lands Tribunal disputing the claims of the 3rd and 4th Respondents that his predecessor gave them land as way back as 1979. In the same letter the current Chief confirmed that he had allocated 107 hectares to the Appellant Company after consulting the traditional councillors. The four Respondents in the Lands Tribunal opposed the appeal. In their affidavit evidence their case is that the land in question being traditional land under customary tenure could not have been allocated to the Appellant Company because it could only have been done so if the allocation followed a certain well- established procedure. Their case is that the letter before the Tribunal suggesting the allocation of that land to the Appellant was done by the current Chief Lesa. The land in question had already been allocated to the 3rd and 4th Respondents by the late Chief as way back 1979 and that the current Chief Lesa could only have done that allocation in consultation with the traditional councillors and with the consent of the 3rd and 4th Respondents which procedure the current Chief did not follow. Their case also is that at the time of the purported allocation of the land in question by the current Chief Lesa, the 3rd and 4tf1 Respondents had an interest in the land in question. The current Chief did not, contrary to his assertion, consult the traditional councillors the Appellant Company mentioned in its appeal as having been consulted. They further stated that the land in question was adjacent to their farms so they had an interest. They pointed out to the fact that the Mr Van Rensberg and his brother had been renting land from the late Phillimon Ngoma as well as from them an area of 3000 hectares. According to them that was sufficient land for the Appellant Company to continue carrying out farming activities. J4 They further deposed that the same Mr Van Resnberg on behalf of the Appellant Company had tried on previous occasions to acquire the same land by consulting them but that they had refused to facilitate him acquire land as they told him that that land belonged to them. In 1996 he again approached the 4th Respondent on his own asking him to facilitate him taking over that same land but the 4th Respondent told him that he and the 3rd Respondent owned that farm jointly for a purpose. So the Appellant inspite of this information, behind their backs, went to Chief Lesa and acquired the same land surreptitiously. Thus, as far as they were concerned the Appellant Company did not follow the right procedures and as such it was not properly allocated the land in question. They deposed that this is why when they had an opportunity with the Provincial Lands Officer when there was a meeting at the provincial level they protested against the Appellant Company being allocated the land in question. They were, therefore, surprised that even after this protest by them Mr Van Resnberg started building a residential house on the land in question after the purported allocation of this land by current Chief Lesa to the Appellant Company. He continued to build the house even after receiving a letter from the Provincial Lands Officer dated 11th January 2000. He still continued to build even when the District Secretary, Mpongwe District Council, wrote him a letter cautioning him about this allocation of the land to the Appellant Company. The 3rd and 4th Respondents maintained that they ought to have been consulted before the allocation of the land in question to the Appellant. Three other traditional councillors by the names of Amos Mali, Patson Bonsebakaya Sengela and Frank Kalyolyo deposed in their respective affidavits supporting the 3rd and 4th Respondents that the current Chief Lesa did not consult them before allocating the land in question to the Appellant. They also deposed and viva voce testified that as far as they were concerned the 3rd and 4th Respondents had been allocated the land in question as way back 1979 by the late Chief Lesa, The Lands Tribunal, on the evidence before it, held that according to farm permit, 107 hectares was allocated to the Appellant company. J5 But it however held that such allocation was null and void as the current Chief Lesa did not follow the right procedures stipulated in Section 3 (4)(c) of the Lands Act (4) in that he did not consult the traditional councillors and all other interested parties before allocating that land to the Appellant Company. They went on to hold that the issuance of the title deeds, when there were strong objections from the 3rd and 4th Respondents, was wrong. They referred to the cases of Siwale vs Siwale (1) and Albert Phiri Mupwaya and another vs Matthew Mbaimbi (2) of this court and dismissed the Appeal. Now before us the Appellant Company referred to Section 7 (1 )(2) of the Lands Act (4), Chiefs Act (5) and Statutory Instrument No. 7 of 1964 (6) arguing that the learned Chairman and his Members of the Lands Tribunal erred in their decision by relying on the need for the Chief to have consulted the 3rd and 4th Respondents before allocating the land to the Appellant Company. Dr. Sakala, state counsel for the Appellant, argued that the proper procedure in the distribution of tradition land is not that there has to be consultations with the 3rd and 4th Respondents. Referring to the book of An African Survey - A Study of Problems Arising in Africa south of the Sahara, by Lord Hailey, Oxford University Press (1957) p. 685, arguing the first and third grounds of appeal he argued that since the land in question was unused or unutilized tradition land, that land had to revert to the Chief as a custodian of the community under the Chiefs Act (5). He argued that the Chief has almost autochthonic powers over such land as he does over his people. This is more so since the land was unused or unoccupied. He referred to Treatises (7) and argued that the Chief has complete domain over such land and that land is held in trust by the Chief on behalf of the community. The Chief in that capacity has a right to allocate that said land to someone else provided he consults the traditional councillors. His argument also is that the Appellant needed only to consult the Chief and to get his consent. It was up to the Chief to consult his councillors and in this case the Chief did consult his traditional councillors as was testified in the court below. J6 He argued that this was more so since the two Respondents were given land in 1979, which they had not developed. That being so the land automatically reverted to the Chief and as such the Chief could reallocate it to another investor he regarded as being fit. He referred to the procedures, which the Appellant Company went through. He pointed out to the fact that the Appellant approached the Chief. The Chief recommended the issuance of the certificate of title deeds of that land to the Appellant. The 1st Respondent held meetings and even after taking into account the objections by the 3rd and 4th Respondents approved the allocation to the Appellant on 5th March and 23rd April 1999, Therefore, the equitable principle of estoppel should operate against any change of mind by the 1st Respondent - see Dixon vs Kennaway and Taylor Fashions vs Liverpool Victoria Trustees Limited. On ground two, Dr. Sakala argued that the Lands Tribunal wrongly applied the ratio decendi in the Siwale vs Siwale (1) case. He referred to the same case and sought to distinguish it with the case before us. According to him the Siwale case was not on all fours with the instant appeal. He argued that even the case of Albert Phiri Mupwaya and another vs Matthew Mbaimbi (2) was not on all fours with the case before us. He therefore urged this court not to use the ratio decendi in these two cases. On ground four he argued that the Lands Tribunal erred when it ignored and made no ruling whatsoever on the developments the Appellant carried out on the land in question, estimated at K40 000 000 00 for uncompleted residential house, US 4 000 00 for water bore hole and K1 000 000 00 paid as survey fees. It is his argument that at least, as the Appellant Company had prayed for this remedy, the court below should have awarded the expenses it incurred in developing the land in question. In the last ground of appeal, Dr Sakala submitted that although he was not going to belabour his client's views that the challenge by the 3rd and 4th Respondents of the allocation of land to him was motivated on racial grounds and abuse of political office he nonetheless urged this court to scrutinize the role J7 the 3rd and 4th Respondents played in this wrangle. He submitted that for this court to really appreciate this argument it should look at the period when this land was allocated to the 3rd and 4th Respondents in 1979 and 1999 when it remained unutilized for 20 years. He submitted that the 3rd and 4th Respondents suddenly and irrationally swung into action challenging the allocation of land to the Appellant Company. He pointed out to the fact that the 3rd and 4th Respondents never developed the land in the 20 years and never showed any signs of interest only to wake up and without justification and irrational protested on the allocation of that land to the Appellant Company. He urged this court to analyze the motive of the 3rd and 4th Respondents in challenging the allocation. He pointed to the fact that the 3rd Respondent was a Cabinet Minister when he objected to the allocation of that land to the Appellant Company. He was still a Cabinet Minister in the year 2000 and that he used his political profile to challenge this allocation of land to the Appellant Company. So he urged this court to agree with his client that the 3rd Respondent must have done this because of his political profile and that the whole challenge was based on racial motives. We have considered the evidence, submissions and arguments before us. It is common ground that the land in question was traditional land held under customary tenure and as such could only be alienated in accordance with Section 3(4) of the Lands Act (4). This section says:- “(4) Notwithstanding subsection (3), the President shall not alienate any land situated in a district or an area where land is held under customary tenure- fa) without taking into consideration the local customary law on land tenure which is not in conflict with this Act; (b) without consulting the Chief and the local authority in the land area in which the land to be alienated is situated, and in the case of a game management area, and the Director of National Parks and Wildlife Service, who shall identify the piece of land to be alienated; J8 (c) without consulting any other person or body whose interest might be affected by the grant; and (d) if an applicant for a leasehold title has not obtained the prior approval of the chief and the local authority within whose area the land is situated.” The evidence that was laid before the Lands Tribunal by the 3rd and 4th Respondents supported by the affidavit and viva voce evidence of the traditional councillors who were mentioned in the letter as having agreed to the allocation of land to the Appellant Company was that the current Chief Lesa did not consult the tradition councilors as well as the 3rd and 4th Respondents. The evidence for the Appellant Company is that the traditional councilors as well as the 3rd and 4th Respondents were consulted but that the 3rd and 4th Respondents objected to the allocation of land because they had an interest in the land in question as it had been given to them as way back as 1979 by the predecessor to the current Chief Lesa. The Lands Tribunal rejected this evidence for the Appellant and accepted the evidence of the 3rd and 4th Respondents that they were not consulted, Quite clearly, having accepted that the 3rd and 4th Respondents were not consulted, the provisions of Section 3(4) came into play as according to that Section the 3rd and 4th Respondents are persons whose interest were going to be affected by the allocating of land to the Appellant Company. It was argued by the Appellants that the land in question reverted to the Chief, as it was not developed in the 20 years the 3rd and 4th Respondents had an interest in that land. Section 3(4) talks about a person or any body whose interest might be affected by the grant. The Lands Tribunal must have grouped the 3rd and 4lh Respondents as persons whose interest might have been affected by the allocation of that land to the Appellant Company and as such they ought to have been consulted Although we agree with Dr. Sakala's forceful argument that Chiefs enjoy auto chthonic powers over land held under customary tenure and especially undeveloped land nonetheless Section 3(4) of the Lands Act is couched in such a way that it is mandatory for the 3rd and 4th J9 Respondents to have been consulted before allocating the land to the Appellant Company. Failure to do so results in the purported allocation to be null and void. It was also argued by the Appellant Company that the Tribunal erred in applying the ratio decendi in the case of Siwale vs Siwale (1). We agree that the facts in the Siwale vs Siwale (1) were different from the facts before us. In the Siwale vs Siwale (1) case, the deceased who had been given the land by the colonial authorities with the approval of the local Chief sometime in 1929, died interstate. The Appellant who were his siblings objected to their last brother obtaining title deeds of that land without their consent. This court agreed with them that under Section 3 (4) it was obligatory on the part of the traditional chief to seek their consent, as according to that Section their interest would have been affected by one of their brothers obtaining title deeds of that land. This court pointed out to the fact that that land held under customary tenure can only be alienated if consent is obtained by the traditional chief from those whose interest maybe affected by such allocation. In the Siwale case the core contention was exactly the same contention as in the case before us. In this case before us the core question is whether or not the procedure adopted by the current Chief of allocating land to the Appellant Company without consulting the 3rd and 4th Respondents was a proper procedure. Our view is that the procedure adopted by the current Chief was wrong and as such the allocation of land to the Appellant is null and void. The Appellant has argued that the objection by the 3rd and 4th Respondents was racially motivated and vexatious. Although one can see that the objection by the 3rd and 4th Respondents was irrational especially taking into account the fact that that land remained undeveloped for 20 years nonetheless there is no evidence to support the accusation by the Appellant Company that such objections were racially motivated and that that was an abuse of office by the 3rd Respondent. J10 So In view of the conclusions just made that the procedure made by the current Chief was in breach of Section 3 (4) of the Lands Act (4) we hold that the argument that the challenge of the allocation of land to the Appellant Company was racially motivated and vexatious, is not tenable. Coming to the invitation by the Appellant Company that we should invoke the doctrine of estoppel in as far as the 1st Respondent is concerned we hold the view that as Section 3 (4) of the Lands Act is mandatory, the doctrine of estoppel cannot be invoked since the doctrine cannot defeat such a statutory provision. The only point we want to consider is in relation to the expenses incurred by the Appellant Company in developing the land in question estimated at K40 000 000 00 of the uncompleted residential house, US $400 00 for water bore hole and K1 000 000 00 paid as surveying fees. We have taken note of the fact that the Appellant Company in its appeal to the Lands Tribunal pleaded damages as alternative to the allocation of land. We therefore hold that since the Appellant Company was allocated the land in question by the current Chief and Mr Van Resnberg on behalf of the Appellant Company believed that there were consultations with the traditional councilors and the 1st Respondent on two occasions accepted the recommendations of Chief Lesa and recommended to the 2nd Respondent the issuance of title deeds to the Appellant Company, there was good ground for the Appellant Company to have believed that the allocation was bona fide. The Appellant Company therefore with that firm belief developed that land. We therefore hold that the Appellant Company is entitled to recover its expenses incurred in developing that land in question. We therefore hold that the value of those developments must be paid back to the Appellant Company. We order that the Government Evaluation Department should evaluate the improvements and that this value to be paid by the 2nd Respondent to the Appellant Company. We order that the Appellant be condemned in costs for this appeal and in default of agreement, the costs to be taxed. J11 D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE LM. C. Mambilima SUPREME COURT JUDGE