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IN THE COURT OF APPEAL OF ZAMBIA APPEAL NUMBER 147/2017

HOLDEN AT LUSAKA

(CIVIL JURISDICTION)

BETWEEN: ^RTOFAPpgj"

MAFULANDE STONEWORKS tjONSf RUCTION!

11 AUG 2Gi8
LIMITED LLANT
CIVIL REGISTRY 2
AND

COMMISSIONER OF LANDS 1ST RESPONDENT

MUMBA TIPENYE 2ND RESPONDENT

GEOFREY NAMBAYO THOMPSON 3RD RESPONDENT

CORAM: CHASHI, SIAVWAPA, NGULUBE, JJA

On 24th April, 15th May and 17th August, 2018

For the Appellant: M. Mwanawasa, Messrs Levy Mwanawasa

and Company

For the 1st Respondent: E. Tembo, Attorney-General’s Chambers

For the 2nd and 3rd Respondent G. Pindani, Messrs Chonta Musaila and

Pindani Advocates

JUDGMENT

NGULUBE, JA delivered the Judgment of the court.

Cases Referred:

1. Anti-Corruption Commission vs. Barnett Development

Corporation Limited (2008) ZR 69 Vol. 1 (S.C)
2. Kitwe City Council vs. William Nguni (2005) ZR 57 (S.C)
3. Nkhata and Others vs. Attorney-General (1966) ZR 124
' J2

4. Examinations Council of Zambia vs. Reliance Technology

Limited (2014) 3 ZR 171
5. Willheim Ron Buchman vs. Attorney-General SCZ Judgment
Number 14 of 1994
6. Sithole vs. State Lotteries Board (1975) ZR 140

Legislator referred to:

1. The Lands and Deeds Registry Act, Chapter 185 of Laws of

Zambia.

This is an appeal against a Judgment of the High Court

dismissing the appellant’s action, in which a declaration that it

is the lawful owner of the property known as Lot Number

22388/M, together with the land marked on title number

262432/M was sought. The appellant also applied for an order

for possession of the said land and to evict the servants, agents

and whoever from the land under title deed number 262432/M.

The appellant further sought damages for trespass by the 2nd and

3rd respondents with interest and costs.

In delivering its Judgment, the lower court dismissed the

appellant’s claims for want of merit. The court granted the 3rd

respondent an order of possession against the appellant as well

as damages for trespass with simple interest and costs.

Dissatisfied with the Judgment, the appellant lodged an appeal

before this court and advanced the four grounds of appeal which

are couched as follows-

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1. The learned trial Judge erred in fact and law when she held

that the 3rd respondent is the holder of the certificate of title

for Lot 19063/M while the appellant does hold the

certificate of title for Lot 22388/M. The appellant will argue

that there were a lot of anomalies that should have been

considered before making that declaration as the reasons

given by the Plaintiff were not fully addressed by the court

below.

2. The learned trial Judge erred in fact and law when she

found that the appellant’s piece of land had not been

surveyed to date, the reason for non survey being that the

appellant had not taken heed of the directive from the

Surveyor-General’s office and the provincial planning office.

The appellant will argue that he conformed to all the legal

requirements to have his land surveyed and that it was the

Surveyor-General’s duty to assign a surveyor to do the

survey.

3. The honourable Judge erred by not addressing the issue of

the overlapping of the two pieces of land in question as that

issue remained unresolved by the Commissioner of Lands

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and proceeded to issue the certificate of title to the 3rd

respondent.

4. The Judge erred in law and fact by stating that the Plaintiff

never submitted the written submissions that were filed in

court on 27th January, 2017. The appellant will argue that

it was very important for the trial Judge to look at the

written submissions that were filed by the appellant in court

and that the omission by the trial Judge is injurious to the

outcome of the Judgment delivered in this matter.

On behalf of the parties, written heads of argument were filed

with the court based on the four grounds.

In ground one, the appellant’s counsel submitted that the

Learned trial Judge should have considered the fact that there

was a misdescription in the title of the 3rd respondent. Counsel

submitted that, the appellant proved at the trial that, the letter of

offer held by the 3rd respondent described the land as being in

Lusaka District, which the 1st respondent admitted was an error.

Counsel further submitted that, the 3rd respondent’s said letter of

offer was for a 14 year period while the certificate of title was for

99 years. Counsel contended that, no evidence was produced

before court to show how the change was done.

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Counsel contended that, the 3rd respondent’s letter of offer had

serious anomalies as it did not bear an official date stamp. It

was argued that, the 2nd and 3rd respondent gave conflicting

statements with the 3rd respondent stating that, when he

purchased the land, he dealt with the 2nd respondent’s agent

while the 2nd respondent stated that she sold the land to a Mr

Chanda who took documents to her home for her to sign, which

included the certificate of title. Counsel submitted that the

learned trial Judge should have considered all the issues

highlighted above.

On ground two, it was submitted that, the appellant did not

receive the letter written by the Senior Lands Surveyor informing

him that Lot 22388/M was created on top of the already existing

Lot 19063/M. Counsel submitted that, the appellant did his part

by paying for the survey and that it was the responsibility of the

Surveyor-General to provide an officer to conduct the survey. It

was contended that, the Surveyor-General failed in his duty by

not carrying out the survey.

On ground four, Counsel submitted that the appellant’s

submissions were filed on the 27th January, 2018. It was

contended that the learned trial Judge did not look at these
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submissions when they contained information that was very

important to highlight the appellant’s case. Counsel submitted

that the submissions should have been considered by the trial

Judge.

In response to the appellant’s submissions on ground one,

Counsel for the 1st respondent submitted that, it is trite law that

a certificate of title is conclusive evidence of ownership of land

and referred to Section 33 of The Lands and Deeds Registry

Act1, Counsel cited the case of Anti-Corruption Commission

vs. Barnett Development Corporation Limited1 where the

Supreme Court held that -

“under Section 33 of the Lands and Deeds Registry Act, a

certificate of title is conclusive evidence of ownership of land by a

holder of a certificate of title...”

Counsel submitted that, the honourable court below was on firm

ground when it held that the owner of the certificate of title for

Lot 19063/M is the 3rd respondent.

On ground two, Counsel for the, 1st respondent submitted that

the appellant’s piece of land has not been surveyed to date as the

Surveyor-General guided that the boundaries of Lot 22388/M

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need to be re-planned and re-numbered. Counsel submitted that

pages 256 and 257 of the record of appeal confirm that, the

owner of Lot/19603/M is the 3rd respondent. He prayed that

ground two be dismissed for lack of merit.

On ground three, Counsel submitted that, the law on written

submissions is well settled and referred to the case of Kitwe City

Council vs. William N ;uni2 where the Supreme Court held inter

alia that -

“the court is not bound to consider counsel’s submissions because

submissions are only meant to assist the court in arriving at a

Judgment. ”

Counsel contended that, the court is not bound by the

submissions filed by Counsel and that the Judgment is in no

way affected by submissions. He prayed that, ground three be

dismissed for lack of merit. The 1st respondent’s counsel prayed

that the court dismisses the appeal for lack of merit with costs.

The learned Counsel for the 2nd and 3rd respondents filed written

submissions. In ground one, it was submitted that, this ground

of appeal attacked findings of fact that were made by the trial

court.
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It was submitted that the lower court stated at pages J19-J21

that, it found as a fact that the 2nd Defendant was offered

Lot/19063/M by the Ministry of Lands on 5th of June, 2009, as

evidenced by the letter of offer. The court further found that, this

was after a recommendation from Kafue District Council dated

13th September, 2006. The court also found that, Lot 19063/M

was created in 2004 as per site plan dated 6th October, 2004.

Counsel submitted that, ground one, which attacks the findings

of fact by the lower court is misconceived, lacks merit and ought

to be dismissed.

Counsel cited the case of Nkhata and Others vs. Attorney-

General3 on the instances in which a trial judge’s findings of fact

can be reversed and further cited the case of Examinations

Counsel of Zambia vs. Reliance Technology Limited4 where

the Supreme Court guided on when appellate courts can interfere

with findings of fact.

Counsel submitted that, the appellant does not have a certificate

of title and that the learned trial Judge gave reasons why she did

not accept the appellant’s claims. He submitted that, the letter of

offer that was issued to the 2nd respondent, bore an official date

stamp and referred the court to pages 322 and 323 of the record
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of appeal which clearly shows the official date stamp. Counsel

further submitted that, Kafue District is in Lusaka Province and

that the certificate of title issued to the 3rd respondent shows that

the property is situated in the Lusaka Province. Counsel urged

the court to ignore this argument as it is inconsequential.

Counsel further urged the court to ignore the submission of

negligence as it was not pleaded in the lower court and did not

arise at trial. He referred to the case of Willheim Roman

Buchman vs. Attorney-General5 where it was held that -

“a matter that is not raised in the court below cannot be raised

before a higher court as a ground of appeal. ”

It was submitted that, the appellant failed to prove that the 3rd

respondent obtained the certificate of title by fraudulent means.

It was submitted that, the 2nd and 3rd respondents followed the

right steps in the acquisition of the certificate of title for

Lot/19063/M.

It was submitted that the evidence of the 1st respondent’s

witness, Paul Kachimba was that if title is issued on un surveyed

land, it is accompanied by a 14 year lease or title and not 99

years. Counsel submitted that after Lot/ 19063/M was surveyed,

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the 3rd respondent was issued with a 99 year lease. It was

argued that there was no irregularity and Counsel urged the

court to dismiss ground one for lack of merit.

On ground two, it was submitted that, the appellant refused to

adhere to the counsel of the Surveyor-General and the provincial

planning office to have the boundaries of Lot/22388/M re-aligned

so that it would not overlap on Lot/19063/M. Counsel

submitted that the survey was not done because the appellant

protested the directive from the Surveyor-General’s office. It was

submitted that this ground of appeal lacked merit and further

that it be dismissed.

On ground three, counsel submitted that the court is not bound

to consider Counsel’s submissions and that matters of law are for

the court to decide. Counsel prayed that this ground of appeal

fails and urged the court to dismiss this appeal in its entirety for

lack of merit with costs.

At the hearing of the appeal, Dr Mwanawasa on behalf of the

appellant submitted that she would rely entirely on the heads of

argument filed before this court. Mr Tembo, on behalf of the 1st

respondent submitted that he would rely on the heads of

 Jll

argument filed on behalf of the 1st respondent. Mr Pindani, on

behalf of the 2nd and 3rd respondents submitted that he would

also rely on the heads of argument filed on the 26th April, 2018.

In reply, Dr Mwanawasa on behalf of the appellant submitted

that the certificate of title is under contention.

She submitted that, the title deeds appeared in another person’s

name. Counsel further submitted that, the re-planning and re­

numbering of the land was not conclusive and that there is no

evidence on record regarding how the 3rd respondent acquired the

land in dispute.

Counsel submitted that the processing of the said piece of land

did not follow procedure. Counsel contended that the certificate

of title being relied upon is questionable and she prayed that it be

declared null and void.

We have examined the Judgment appealed against and the

record of appeal. We have also considered the submissions by

Counsel as well as the authorities cited.

In ground one, the appellant contends that, the learned trial

Judge erred in fact and law when she held that the 3rd

respondant is the holder of the certificate of title for

♦
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Lot/19063/M while the appellant does not hold any certificate of

title for Lot/22388/M. The appellant argued that there were a lot

of anomalies that should have been considered before making

that declaration as the reasons for that given by the appellant

were not addressed fully by the court below.

In analysing ground one which attacks the findings of fact by the

lower court, we note that an appellate court may not reverse

findings of fact unless the Judge erred in accepting evidence or in

assessing or evaluating the evidence and failed to take into

account something which he should have considered. This is

what the Supreme Court stated in the case of Nkhata and

Others vs. Attorney-General.

The record of appeal shows at page 369 that in cross-

examination, the appellant submitted that he did not have a

certificate of title for Lot/22388/M. He also stated that the said

piece of land was allocated to him on 10th November, 2009 and

that Lot/19603/M was created in 2004, years before

Lot/22388/M was created. In the case of Anti-Corruption

Commission vs. Barnett Development Corporation Limited,

the court held that a certificate of title is conclusive evidence of

ownership of land by a holder of a certificate of title and can only

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be challenged for fraud or where it is shown that title was

improperly obtained. As was held in the Sithole vs. State

Lotteries Board6 case, no charge of fraud was pleaded herein.

The court found as a fact that the appellant did not hold any

certificate of title, a fact which PW1 admitted. The court then

went on to find that a certificate of title once issued is conclusive

proof of ownership of land and that this presumption can only be

rebutted when it is proved to the required standard that the title

was obtained fraudulently or by misdescription, or prior interest.

A perusal of the record of appeal shows that the senior land

surveyor, Jonathan Kaoma wrote a letter to the provincial

planner, Lusaka province planning authority on the planning

anomaly of property Lot/22388/M, which he stated partly

overlapped with Lot/19063/M. It is therefore clear that

Lot/22388/M which was created later than Lot/19063/M

encroached on the said Lot/19063/M.

The appellant further contends that the 3rd respondent’s letter of

offer had a lease period of 14 years whereas the certificate of title

is for a period of 99 years. The evidence of Paul Kachimba was to

the effect that, if title is issued on un surveyed land, it is

, J14

accompanied by a 14 year lease and not a 99 year lease. The

witness stated that Lot/22388/M can only be put on title if it is

re-aligned. He further stated that Lot/19603/M was

subsequently surveyed by the office of the Surveyor-General

hence the granting of a 99 year lease.

We have analysed the evidence on record in ground one and find

that the learned trial Judge’s findings of fact were not perverse

and were supported by the evidence on record. The appellant

does not have a certificate of title and his piece of land was not

even surveyed. There is no evidence of fraud in how the said title

was obtained. We do not find merit in ground one and it is

accordingly dismissed.

On ground two, the evidence on record is that the Surveyor-

General wrote to the provincial planner advising that

Lot/22388/M overlapped on Lot/19603/M and therefore the

boundaries of Lot/22388/M needed to be re-aligned. The court

found that the appellant’s land was not surveyed and overlapped

on Lot/19603/M. The court further found that Lot/19603/M

was properly surveyed and that there was no misdiscreption or

fraud in the acquisition of the land, record. As such, we do not

find merit in ground two and it is dismissed for lack of merit.

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On ground three, whether the court erred in not considering the

appellant’s written submissions that were filed on 27th of

January, 2017, we are guided by the holding of the Supreme

Court in the case of Kitwe City Council vs. William Nguni as

earlier alluded to.

We do not find any merit in this ground of appeal as the court is

under no obligation to consider counsel’s submissions. We

therefore dismiss ground three as it lacks merit.

Having dismissed grounds one, two and three for lack of merit,

the net result is that this appeal fails in its entirety. It is

accordingly dismissed wit^^Ssts/to the 1st, 2nd and 3rd

respondents which shall be taxed in default of agreement.

" J. CHASHI
COURT OF APPEAL JUDGE

J.M. SIAVWAPA P.C.M. NGULUBE

COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE