Zambia International Church of Christ Registered Trustees v Occupants of Farm Number 687 Mandevu (Appeal 63 of 2015) [2018] ZMSC 405 (19 February 2018)

J1 Selected Judgment No. 8 of 2018 IN THE SUPREME COURT> HOLDEN AT LUSAKA (CIVIL JURISDICTION) JUDICIARY P.255 APPEAL NO.63/2015 SCZ/8/317/2014 IN THE MATTER OF AND IN THE MATTER OF BETWEEN: CLERK OF COURT 1a OX SOCrtTi sion of land under Order 3 of the rules of the Supreme Court 1999 edition. Subdivision ‘K’ of Sub-division number 2 of Sub-division "A’ of Farm number 687 Mandevu, Lusaka. ZAMBIA INTERNATIONAL CHURCH OF CHRIST REGI ST ERED T RU ST EES APPELL AN T AND EVERY PERSON IN OCCUPATION OF SUBDIVISION ‘K’ OF SUBDIVISION NUMBER 2 OF SUBDIVISION ‘A’ OF FARM NUMBER 687 MANDEVU, LUSAKA RESPONDENT CORAM: Hamaundu, Kabuka and Chinyama, JJS On 7th November, 2017 and 16th February, 2018 For the Appellant : For the Respondent : Mr N. Siamoondo, Messrs Corpus Legal Practitioners Mr G. Tembo (In person) JUDGMENT Hamaundu, JS delivered the Judgment of the court. J2 Cases referred to: 1. Greater London Council v Jenkins [1975] 1 All E. R. 354 2. Wilson Msauso Zulu v Avondale Housing Project Limited [1982] ZR (256) Legislation referred to: The Rules of the Supreme Court (White Book), Order 113 The appellant appeals against the High Court’s judgment which held that the appellant could not evict the respondents under Order 113 of the Rules of the Supreme Court (White Book) on the ground that the respondents had a dispute with the appellant over the disputed piece of land and could, therefore, not be treated as squatters. The background to this appeal is as follows: The appellant on 4th July, 2014 filed Originating Summons under Order 113 of the White Book seeking to evict the respondents from subdivision ‘K’ of subdivision number 2 of subdivision ‘A’ of Farm number 687 Mandevu, Lusaka who, according to the appellant, were in occupation of the piece of land without its licence or consent. The appellant stated in its affidavit that, upon discovering that the respondents had erected some structures on the land, it had attempted to remove them. However, the respondents, as a mob had J3 (257) attacked the police officer and the appellants representative who had gone to seek their removal from the land. The respondents defended the action through Victor Mupota who stated that, upon discovering that they had settled on land belonging to the appellant, the respondents had been ready to meet and dialogue with the appellant. That, to that end, the respondents had met with some of the appellant’s board members, at which meeting it was agreed that the appellant would be willing to sell the piece of land to the respondents at the sum of K800,000. That the respondents pleaded with the appellant to reduce the price to K650,000. That it was on the strength of those discussions that the respondents went ahead to build on the land structures worth more than K3,000,000. The appellant replied that the board members that the respondents had approached had made it clear that no decision could be made until a board meeting was convened; and that no purchase price was ever agreed upon. In its judgment, the court below relied on the provision of Order 113/8/3 which states that, where the existence of a serious dispute J4 (258) is apparent to the plaintiff, he should not use the procedure under that Order. According to the court, the averments in the affidavits had revealed that negotiations for the sale of the occupied portion of the land to the respondents had been on-going, although the price had not been agreed to; and that, on the strength of the anticipated sale of the land the respondents embarked on serious massive infrastructure development of unexhausted improvements. The court particularly observed that while the parties had been exploring prospects of resolving the matter, it was the advocates of the appellant who advised their client to proceed with summary possession of the piece of land. Consequently, the court said that it did not view the respondents as squatters, and went on to hold that this was not a fit and proper case for the appellant to resort to recovery of possession under Order 113 of the White Book. The appellant has filed four grounds of appeal as follows: 1. The court below erred in law when it failed to consider a binding Supreme Court decision to which it was referred and thereby failed to follow a judicial binding precedent. J5 (259) 2. The court below erred in law when it found that the mode of commencement was flawed and that this was not a proper case for summary possession of land. 3. The trial court erred in law and in fact when it made a perverse finding that the respondents were in occupation of the appellant’s land with the appellant’s express or implied consent when the evidence adduced in the court below clearly shows that the appellant protested the respondent’s presence on its land. 4. The court below erred in law and in fact when it failed to appreciate the effect of a certificate of title as being conclusive evidence of the appellant’s ownership of the land and when it failed to grant the Order of summary possession. We find the grounds of appeal by the appellant superfluous because the only question in this matter was whether or not there existed a serious dispute between the appellant and the respondent over the land. That said, arguments were advanced on behalf of the appellant that in such applications the time at which the application is made is critical to the entire action. The case of Greater London Council v Jenkins(1) was cited for that proposition. Mr Siamoondo, learned counsel for the appellant went on to submit that it was clear from the affidavit evidence that at the time that this action was J6 (260) commenced the respondents had no licence to occupy the portion of land; in fact the respondents were squatters. Counsel argued that the finding by the court below that negotiations and discussions for the sale of the portion of land had been on-going was perverse as the affidavit evidence showed that no agreement was reached between the parties. We were urged to reverse that finding of fact on the strength of a number of our authorities, one such authority being Wilson Masauso Zulu v Avondale Housing Project Limited (2). On behalf of the respondents it was submitted that there was evidence from the affidavit that no decision could be made until the appellant’s board had met; and that no purchase price of the land had been agreed to. It was then argued that the finding by the court below that negotiations for the sale of the portion of land had been on-going was based on the above affidavit evidence and was, therefore, not perverse. It was argued then that, on that finding, the court below was on firm ground in holding the view that the respondents were not squatters; and in holding that there was a serious dispute between the parties. We have considered the arguments by both sides. J7 (261) The question, as we have said earlier, is whether it was apparent to the appellant that there existed a serious dispute between it and the respondents over the land. In this case the holding in Greater London Council v Jenkins, namely that the time when the action is commenced is of great significance is persuasive and we adopt it. In this case the question is; was the appellant, at the time that it commenced this action, aware of the existence of a serious dispute between itself and the respondents over the piece of land? It can be seen from the record that while the appellant filed this action on 4th July, 2014 and served the process on the respondents, the latter only filed their affidavit in opposition in November, 2014, some four months later. Their affidavit revealed that they only engaged the appellant for the alleged negotiations after they were served with process of those proceedings. Such negotiations, assuming they indeed were negotiations, can only be described as an attempt at ex-curia settlement of the matter by the parties. Such ex­ curia settlement having failed, the court should have only considered the position that existed at the commencement of the action. It is clear that prior to the commencement of this action no negotiation J8 (262) for the sale of the portion of land had ever been embarked on by the parties. Therefore, there was no serious dispute that would have been apparent to the appellant when it commenced this action. We, consequently, find merit in the appellant’s third ground which raises issue with the finding by the court below that there had been on­ going negotiations between the parties on the strength of which the respondents had gone on to develop massive unexhausted improvements. As we have said there was merely an attempt at ex­ curia settlement of this matter, which attempt failed. We, therefore, find that on the evidence that was adduced before the court below the appellant was entitled to possession of its portion of land under Order 113 of the Rules of the Supreme Court. This appeal is allowed. The judgment of the court below is set aside. We order that the appellant do recover possession of the land described in the originating summons and the respondents do yield vacant J9 (263) possession of the said land. The costs, both here and in the court below, are awarded to the appellant. E. M. Hamaundu SUPREME COURT JUDGE J. K. Kabuka SUPREME COURT JUDGE ................. J. Chinyama SUPREME COURT JUDGE