Tapson Mulimba v Mkushi District Council and Anor (Appeal 29 of 1999) [2003] ZMSC 168 (3 April 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 29 OF 1999 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: TAPSON MULIMBA APPELLANT AND MKUSHI DISTRICT COUNCIL GEORGE HAMBAYI 1st RESPONDENT 2ntl RESPONDENT CORAM: Lewanika, Chaila and Chirwa, JJs on Is* June 1999 and 3rd April 2003 For the Appellant: For the Respondent: Mr. H. B. Mbushi, Ndola Chambers Mrs. I. M. Kunda, George Kunda & Co. JUDGMENT Chirwa, JS, delivered judgment of the court: - Cases referred to: 1. 2. Hina Furnishing Ltd. V Mwaiseni Properties Ltd |1983] Z. R. 4 Mutwale V Professional Services Ltd fl984] Z. R. 72 The inordinate delay in delivering this judgment is deeply regretted and it is due to the demise of our brother Justice Chaila who was to prepare the judgment. For the reason of the demise of our brother justice Chaila, this judgment should be taken as judgment by the majority. By the writ of summon issued out by the appellant against the respondents, Mkushi District Council and one George Hambayi, the appellant claimed: - “Declaration orders that Farm No. 45 Chitina Catchment, Mkushi be allocated to the Plaintiff Tapson Mulimba and further that for injunction restraining the 1"! defendant from allocating the said farm No. 45 Chitina Catchment to the defendant on 29<h March 1994 at the full Council meeting and further that by an J2 - injunction the 2nd defendant moves his cattle kraal from farm 45 Chitina Catchment as it has resulted in the 2nd defendant’s animals eating the plaintiffs crops for the running three years. " The origins of this Chitina Catchment block in Mkushi is that the farm land was previously under Chief Chitina’s jurisdiction and the Chief offered the land for agriculture to be administered by the Mkushi District Council. The process of acquiring any piece of land in the Catchment was that interested parties would apply to the Council and the applicant would be interviewed and the successful applicants would be offered the already demarcated land and an agreement would be signed between the successful party and the Mkushi District Council. One of the conditions was that the successful party would develop the farm within five (5) years failure to which and failure to obey other rules of the scheme would entitle the Council to evict the party. Title deeds would be issued by the Commissioner of Lands on recommendation of the Council after being satisfied with the development. The minimum development was for K500,000-00. The farm in question was allocated to one M. M. Kakusu in 1985 and the agreement between him and the Council was signed in February 1986. It is said the appellant is a brother-in-law of the said Mr. Kakusu. In December 1987 the said Kakusu wrote the 1st respondent a letter telling it that he had given the farm to the plaintiff. At the time Kakusu wrote the letter no development took place on the farm. The appellant never signed any agreement with the Council over the farm. Neither did he formally apply for the farm. The learned trial judge found as a fact that there was no contract between the appellant and the Council over the farm. The trial court further found that on the purported transfer of the farm by Kakusu, no Presidential consent was obtained as required at that time and that the purported transfer was of no legal effect and that the whole transaction is unenforceable and he therefore dismissed the action with the costs. In the course of trial, the case against the 2nd respondent was abandoned. There are two grounds of appeal, namely (1) that the honourable judge erred in law and fact when he ignored the evidence that the appellant was allocated farm number 45 Chitina catchment scheme by the 1st respondent and an application for certificate of title was lodged by the Is1 respondent on behalf of the appellant. The - J3 - second (2 ) ground of appeal was that the honourable judge relied on wrong authorities and therefore failed to apply the law accordingly. It was argued during the hearing of the appeal that the learned trial judge erred in failing to take into account the fact that the previous owner of the farm had written the respondent informing it of the transfer of the farm to the appellant and that the respondent did acknowledge this transfer and invited the appellant to attend interviews. It was further submitted that the respondent could not take back the farm as there was development of more than K500,000-00 in form of barbed wire of about 3 kilometres and a kraal. Further the appellant had cleared about 53 hectares. On the second ground of appeal, it was argued that the respondent having allocated the farm to the appellant, there was no need for Presidential consent as was required under the Land (Conversion of Titles) Act and the authorities of HINA FURNISHING LTD. V MWAISENI PROPERTIES LTD (1) and MUTWALE V PROFESSIONAL SERVICES LTD [19841 (2) were inapplicable. In response to the grounds of appeal, Mrs. Kunda for the respondent submitted that the purported transfer of the land was between the appellant and Mr. Kakusu and was without consent of the respondent. That there was no contract between the appellant and the respondent on which specific performance could be ordered. It was submitted that although the appellant was called for interviews to see his suitability and ability to develop the farm he never bothered to attend the interviews and the respondent could not all locate the farm to him without interviews. There being no contract between the parties, the respondent could not have applied for certificate of title on behalf of the appellant. On lack of development, it was submitted that the barbed wire and the kraal were put up by DW2 Hambayi when he was using that piece of land. It was submitted that there was no legal interest for the appellant to enforce. On the second ground, it was argued that for the purported transfer of the farm from Kakusu to the appellant State Consent was necessary under the Land (Conversion of Titles) Act and as there was none, the purported transfer was null and void. We have considered the appeal. It is not disputed that the land in question was given to Mr. Kakusu and agreement to that effect was signed between Mr. Kakusu - J4 - and the respondent dated 16Ih February 1986. It is one of the conditions of the agreement that the farm should be developed within 5 years. There is evidence that as in February 1991 there was no development on the farm, only the barbed wire and kraal put up by the 2nd respondent who at one time occupied the farm. As there was no development on the farm, the respondent resolved in February 1991 to repossess the farm. As between the appellant and the respondent there is no contract that can be enforced. The appellant was invited to attend interviews but he never attended. We cannot fault the learned trial judge when he held that there was no contract to enforce. The appeal must fail on that ground alone and it is dismissed with costs. D, M. LEWANIKA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE