Pilate Milambo v Dominic Machulu France (Suing as Administrator for the Estate of the late Ledy Mwanza) (APPEAL No. 184/2023) (20 August 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 184/2023 HOLDEN AT NDOLA (Civil Jurisdiction) 0 AUG 2025 ~ BETWEEN: REGISTRY 2 PILATE MILAMBO APPELLANT AND DOMINIC MACHULU FRANCE (Suing as RESPONDENT Administrator for the Estate of the late Ledy Mwanza) CORAM: Chashi, Ngulube and Banda-Bobo, JJA ON: 12th and 20th August 2025 For the Appellants: B. Mwape, Messrs Mulilansolo Chambers, Agents for Messrs MAK Partners. For the Respondent: N/A JUDGMENT CHASHI JA, delivered the Judgment on behalf of the Court. Cases referred to: 1. Anti-Corruption Commission v Barnnet Development Corporation Limited (2008) 1, ZR, 69 2. Nkongolo Farms Limited v Zambia National Commercial Bank and Others - SCZ Appeal No. 19 of 2007 -J23. Tresford Chali v Bwalya E.K Ng'andu - SCZ Appeal No. 84 of 2014 4. Zambia Revenue Authority v Dorothy Mwanza & Others - SCZ Appeal No. 184 of 2010 5. Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others (2005) ZR, 138 6. Sable Zambia Limited v Zambia Revenue Authority - SCZ Appeal No. 20 of 2003 7. Standard Chartered Bank Zambia Plc v Kambidima Wotela & 164 Others - SCZ Appeal No. 1 of 2014 8. Leymond Saope Katangala Mwale (As Administrator of the Estate of Augustine Nsangu Mwale) v Mable Lungu - CAZ Appeal No. 86 of 2021 9. Three Rivers District Council v Governor of England (2001) UKHL, 16 Legislation referred to: 1. The Lands and Deeds Registry Act, Chapter 185 of The Laws of Zambia Rules referred to: 1. The Supreme Court Practice {White Book) 1999 Other Works referred to: 1. ORDGERS' Principles of Pleading & Practice, 22nd Edition London, Steven & Sons, 1981 -J31.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Honourable Lady Justice Chilomb o Bridget Maka, in cause No 2020 /HL/ 37, delivered on 27th March 2023. 1.2 In the said Judgment, the learned Judge ordered the plaintiff, now the Respondent, to take vacant possession of Farm No. 28 Musuma Settlement, Chief Sianjalika in Mazabuka (the Farm), by 30th June 2023. 2.0 BACKGROUND 2.1 The Respondent by way of amended writ of summons and statement of claim dated 28th October 2020, sought the following reliefs against the Appellant as defendant in the court below: (i) An Order for vacant possession of the Farm; (ii) Costs; (iii) Any other re lief the court may deem fit. 2.2 According to the attendant statement of claim, the Respondent was suing as the Administrator of the Estate of the late Ledy Mwanza, his elder brother, who -J4at the time of his death was the legal owner of the Farm. The Appellant was said to be a squatter at the Farm. 2. 3 It was averred that in 1972, the late John Chooka, the father to the late Ledy Mwanza was granted the Farm by Family Farms Limited. That by virtue of the said grant, the late John Chooka as owner of the Farm, in 1993 made an application to the Lands Department in Mazabuka, for the survey and processing of title, upon which he paid the sum of K12,000.00. Unfortunately, he died on 11th October 2001, before title could be processed. 2. 4 It was further averred that after the death of John Chooka, the late Ledy Mwanza and the late Cosmas I Milambo, father to the Appellant, began to have disputes over ownership of the Farm. As a result of the disputes, the records at Family Farms Limited, Musuma Development Committee and the Ministry of Agriculture and Co-operatives in Mazabuka, in November 2006 and July 2017, were consulted in order to clarify who the legal owner of the Farm was. That the same confirmed that John Chooka was the original owner. -JS2.5 According to the Respondent, in reliance on the records from the aforestated Institutions, the Ministry of Lands issued a certificate of title to the late Ledy Mwanza on 21st July 2012. 2.6 Further, according to the Respondent, the Appellant on numerous occasions has hindered the beneficiaries of the late Ledy Mwanza from quiet enjoyment of the Farm, by making every effort to wholly possess the Farm. That he has also been demanding that they stop farming on the Farm. That despite being asked to vacate, he has totally refused. ' 2.7 The Appellant settled his amended defence on 3rd December 2020, and denied being a squatter at the Farm. He also denied that the Farm was granted to the late John Chooka. The Appellant admitted that he was making an effort to wholly possess the Farm and that as such he has refused to vacate, as it was his right to settle on the Farm. 3.0 DECISION OF THE COURT BELOW 3.1 After considering the pleadings, the evidence by the witnesses from both parties and the Appellant's -J6submissions, the learned Judge made several findings of fact, based on the undisputed facts and evidence. The learned Judge formulated issues for determination as follows: (i) Who owns the Farm (ii) Should the Respondent be granted an Order for vacant possession of the Farm 3.2 After scrutinizing the agreement for land rent payment dated 28th September 1978, which the Appellant heavily relied upon, the learned Judge noted that it was not a lease or sub lease, but simply an agreement on how land rent and premium was to be paid. That therefore, the Appellant's referencing of the said agreement as a lease was flawed and misleading. 3.3 The learned Judge then made a finding that it was more probable that the Farm was granted to John Chooka in 1972 as pleaded, which entailed that the period of 14 years elapsed in 1986, hence the year of completion of payment. 3.4 The learned Judge noted that the certificate of title obtained by Ledy Mw anza, was predicated on a letter -J7dated 31st October 2005, from Alfred Hakabanza Moonde (DW2), the caretaker of Family Farms Limited, to the effect that the original owner of the Farm was John Chooka and they had no objection to title deeds being issued in the name of John Chooka. That apart from the said letter, there was also a letter from Musuma Development Committee dated 9th November 2006, addressed to the Ministry of Lands. The letter was to the effect that the original application forms for the Farm were filed by John Chooka as the original owner of the Farm. Further that he had paid survey fees, which according to the learned Judge was consistent with the pleadings that John Chooka had commenced the process of obtaining title deeds in 1993. 3.5 The learned Judge noted that Musuma Development Committee further confirmed that John Chooka had been at the Farm since 1972 as a professional farmer and they equally had no objection to title deeds being issued to John Chooka. That this was compounded by letters of confirmation from Ministry of Agriculture and -JSCo-operatives and Chief Sianjalika of Mazabuka addressed to the Ministry of Lands. 3.6 The learned Judge opined that in view of the aforestated letters, which spoke to the effect that John Chooka was the original owner of the Farm, the attempt by DW2 to show that there was misrepresentation in the manner the Respondent procured the letter from him cannot be sustained. That therefore DW2's attempt to contradict his own letter was indicative that he was not a credible witness. 3.7 The learned Judge then made reference to section 33 of The Lands and Deeds Registry Act 1 on the certificate , of title being conclusive evidence of ownership. Section 34 was also referenced, which states that no action shall lie against a registered proprietor holding a certificate of title, except in cases of fraud, misdescription of boundaries and procedural impropriety. 3.8 To that effect the case of Anti-Corruption Commission v Barnnet Development Corporation Limited1 was cited, where the Supreme Court stated as follows: -J9- "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 the certificate of title. However, under Section 34 of the same Act, a certificate of title can be challenged and cancelled for fraud or reasons for impropriety in its acquisition." 3. 9 The learned Judge opined that for a party to challenge a certificate of title on any of the grounds above stated, the same must be specifically pleaded and proved. Reference was also made to Order 18 / 8 / 16 of The Rules of the Supreme Court1 (RSC) which states that any charge of fraud or misrepresentation must be pleaded with the utmost particularity. 3.10 To that effect, the cases of Nkongolo Farms Limited v Zambia National Commercial Bank and Others2 and Tresford Chali v Bwalya E.K Ng'andu3 were relied on. Upon applying the law to the facts, the learned Judge made the following findings: -JlO- (i) That the certificate of title to the Farm revealed that Ledy Mwanza was the . registered and legal owner of the Farm; (ii) According to Section 33 of The Lands and Deeds Registry Act, a certificate of title was conclusive evidence as regards ownership of the Farm; (iii) That the amended defence had no counterclaim. That the Appellant did not therefore plead any grounds upon which the certificate of title issued to Ledy Mwanza could be challenged; (iv) That although there were inferences of fraud made by Counsel for the Appellant in the submissions, the learned Judge was categorical that the position of the law was that fraud must be specifically pleaded and proved and should not be inferred from the facts. That the Appellant did not prove fraud and attempts to infer it from the facts could -Jl 1not be entertained. That the submissions were there/o re misconceived. 4.0 THE APPEAL 4.1 Dissatisfied with the Judgment, the Appellant appealed to this Court, advancing the following three grounds: (i) The trial Judge in the court below erred in/act and law when she found and held that the Respondent had a valid certificate of title to Farm 28 Musuma Settlement, Chief Sianjalika and is there/o re, entitled to possession of the said land; (ii) The trial Judge in the court below erred in law and fact, when she failed to take judicial notice of the fact that, extents of pieces of land stated on the Lands and Deeds Registry System and on the · certificate of title should not differ; (iii) The trial Judge in the court below erred in law and fact when, having been brought to her attention at trial, that, -J12- • there is a glaring difference between the extent entries on the Lands and Deeds Registry System and the certificate of title, she failed or declined to comment on that discrepancy. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 At the hearing, Mr Mwape, Counsel standing in for the Appellant relied entirely on the Appellant's heads of argument filed into Court on . 16th June 2023. The Appellant abandoned the second and third grounds. Therefore, only the first ground was argued. 5.2 In arguing the first ground, the Appellant submitted that the premise of the appeal was that the court below erred when it disregarded the evidence on record that pointed to the fraudulent manner in which the Respond~nt obtained the certificate of title. Reliance was placed on a number of authorities as to when an appellate court can interfere with findings of fact. Notable amongst them was the case of Zambia Revenue Authority v Dorothy Mwanza & Others4 where the Supreme Court held that: -Jl3- " ...l t t. s trite law that this Court will not interfere with findings of fact unless it is satisfied that the finding was either perverse or made in the absence of any relevant evidence or misapprehension of the facts or that findings which, on a proper view of the evidence no trial court acting correctly and reasonably can make. .. " 5.3 The Appellant urged us to intervene in the findings as according to him, the court did not consider the evidence on record in its totality. It was submitted that evidence was led to the net effect that there was fraud and procedural impropriety in the manner in which the Respondent obtained the certificate of title. Reference was made to the evidence of DW2. 5.4 According to the Appellant, the evidence of fraud was not objected to by the Respondent. Our attention was drawn to the case of Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others5 and submitted that we should intervene in the lower court's finding. That the fact that the evidence of DW2, which -Jl4- • pointed to alleged fraud and impropriety graced the record, means that the court should not be precluded from its consideration in its findings. 6.0 RESPONDENT'S ARGUMENTS IN OPPOSITION 6.1 Neither the Respondent nor its advocates were present at the hearing. We however considered the Respondent's heads of argument filed into Court on 28th July 2023. In response to the sole surviving ground, our attention was drawn to Order 18 / 12 / 18 RSC and the case of Sable Zambia Limited v Zambia Revenue Authority6 where , the Supreme Court held that: "Where fraud is an issue in the proceedings, then a party wishing to rely on it, must ensure it is clearly and distinctly alleged." 6.2 According to the Respondent, the Appellant did not in his pleadings allege any fraud. That therefore the court below was on firm ground, when it held that the Appellant needed to distinctly plead fraud and prove it. 6.3 The Respondent submitted that the court considered and evaluated the evidence of DW2 and found that he was not ,a credible witness. Further that the court -Jl5rightly considered all the evidence before it in arriving at its finding. That this is not a proper case for interfering with the court's finding of fact. 6.4 It was the Respondent's contention that having not pleaded fraud or any impropriety and the evidence of DW2 having been discounted in totality, the trial court was on firm ground in holding that John Chooka was the owner of the Farm. 7.0 OUR ANALYSIS AND DECISION 7. 1 We have considered the record and in particular the Judgment being impugned and the arguments by the parties. The Appellant in its ground of appeal is challenging a finding of fact by the learned Judge that the Respondent had a valid certificate of title and was therefore entitled to vacant possession of the Farm. 7.2 The issue we are being called upon to determine 1s whether this is a proper case for us to interfere with the learned Judge's finding of fact. It is indeed trite law that we can only interfere if we are satisfied that the finding ' was perverse or was made in the absence of any relevant evidence or misapprehension of facts or which -J16- • on a proper view of the evidence, no trial court acting correctly and reasonably could have made. 7.3 The contention by the Appellant, was that there was evidence from DW2, which pointed to fraud and impropriety, which was not taken into consideration by the learned Judge in arriving at its finding of fact. It is evident from the Appellant's arguments that the appeal is premised on the alleged learned Judge's disregard of evidence by DW2 that pointed to the fraudulent manner in which the Respondent obtained the certificate of title. 7.4 The allegation from DW2, in his evidence was basically that there was a misrepresentation from the Respondent which led to him recommending that the Respondent could proceed to apply for processing of title deeds. The witness did not directly allege fraud nor procedural impropriety on the part of the Respondent. 7. 5 This witness according to the learned Judge was I attempting to contradict his own letter of recommendation, which was indicative of him not being a credible witness. This witness's evidence was discounted. The other allegations of fraud were as -Jl 7- • observed by the court below only raised 1n the submissions by Counsel for the Appellant. 7 .6 It is evident that the learned Judge based her finding of fact on overwhelming documentary evidence apart from the letter from DW2. These were documents from Musuma Development Committee, Ministry of Agriculture and Co-operatives and Chief Sianjalika. Therefore·, the finding was supported by evidence before the court. 7.7 We note from the Appellant's arguments that he is trying to build his case on allegations of fraud, which he claims graced the record and was not objected to by the Respondent in the court below. 7.8 The starting point is Order 18/ 12 (1) RSC which provides as follows: "Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including without prejudice to the generality of the foregoing: • -J18- • (a)Particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading re lies. .. " 7. 9 Order 18 / 12 / 18 RSC goes on to state as follows: "Fraud - fraudulent conduct must be distinctly alleged and as distinctly proved and it is not allowable to leave fraud to be inferred from facts (Davy v Garret ( 1878) 7 Ch. D 4 73 at 489)." 7 .10 The learned authors of ODGERS' Principles of Pleading & Practice1 at page 100 states as follows: "Any allegation of fraud must be expressly pleaded together with the facts, matters and I circumstances re lied on to support the allegation. In practice the acts alleged to be fraudulent should be set out and then it should be stated that those acts were done fraudulently." 7 .11 The learned authors go on at page 193 to state as follows: -J19- • "Where fraud is intended to be charged, it must be distinctly charged, and its details specified. General allegations, however strong, are insufficient to amount to an averment off raud of which any court ought to take notice." 7. 12 The Supreme Court in the case of Sableland Zambia Limited v Zambia Revenue Authority6 had this to say: "Where fraud is an issue in the proceedings, then a party wishing to rely on it must ensure that it is clearly and distinctly alleged. Further, at the trial of the cause, the party j alleging the fraud must equally lead evidence so that the allegation is clearly and distinctly proved. 7 .13 We note that although in the case of Standard Chartered Bank Zambia Pie v Kambidima Wotela & 164 Others7 the Supreme Court stated that the word , 'Fraud' does not need to be specifically mentioned, it should nevertheless be specifically pleaded. Conversely mere stating in the pleadings that a fraud has been • -J20committed is not enough, as such allegation must be specifically averred in the pleadings. 7.14 It is evident from the aforestated that allegations of fraud must be pleaded and therefore cannot be infe rred or presumed. Fraud is generally considered an exceptional and special cause of action. The details of the alleged fraud, including the specific facts and circumstances, must be clearly outlined 1n the pleadings. Vague or general claims of fraud are not sufficient; the pleading must give the opposing party fair notice of' the case they must defend. The essence in pleading fraud with particularity means providing a clear and detailed narrative of the alleged fraudulent conduct, rather than simply using the word fraud or making a vague accusation. 7.15 In the case of Leymond Saope Katangala Mwale (As Administrator of the Estate of Augustine Nsangu Mwale} v Mable Lungu8 we had this to say: 'There are , numerous_ authorities on the legal principles that any charge of fraud, undue influence or misrepresentation must be pleaded with utmost particularity and that • ... -J21fraudulent conduct must be distinctly alleged and distinctly proved." 7. 16 In the English case of Three Rivers District Council v Governor of England9 Lord Millett in the House of , Lords identified two overarching principles as follows: (i) The pleading must give a party sufficient notice of the case being made against it and consequently in the case of fraud claim, it may not be sufficient to say "willfully" or "recklessly" (ii) An allegation of fraud or dishonesty must be sufficiently particularized and therefore in the case of dishonesty, it is necessary to plead the facts which will be relied upon at trial to justify inferences of dishonest." 7 .17 A perusal of the defence shows that it bore mere denials. The Appellant never pleaded any fraud and neither did he settle' a counterclaim. The fact that a witness mentioned something in his evidence which borders on fraud or that Counsel mentioned fraud in the submissions, in our view was not sufficient. Pleading fraud with particularity means providing a clear and • -J22- ,lj detailed narrative of the alleged fraudulent conduct rather than simply using the word "fraud" or making vague accusations. 7.18 In view of what we have stated, the principle laid out in the Anderson Kambela Mazoka case is not applicable as fraud needs to be pleaded in the manner aforestated, which was not done. 7 .19 The appeal herein has no merit and is accordingly dismissed with costs to the Respondent. Same to be taxed in default of agreeme . J. CHAS , I COURT OF APPEAL JUDGE P.C.M. NGULUBE A.M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE