Alex Mumba and Anor v Christopher Sikapizye (APPEAL NO. 112/2023) (11 June 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 112/2023 HOLDEN A'i"' KABWE (Civil Jurisdiction) ... BETWEEN: ALEX MUMBA 1 ST APPELLANT APOSTOLIC REVIVAL EVANGELICAL APPELLANT 2ND MINISTRIES AND CHRISTOPHER SIKAPIZYE RESPONDENT CORAM: Chashi, Makungu and Banda-Bobo, JJA ON: 21st May and 11th June 2025 For the 1st and 2nd Appellant: Alex Mumba - In Person For the Respondent: S. Chibuye Lukwesa (Mrs), C1:,.ief Legal Aid Counsel JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Galunia Farms Limited v National Milling Company & Another (2004) ZR, 1 2. JZ Car Hire Limited v Malvin Chala and Scirocco Enterprises Limited-SCZ Judgment No. 26 of 2002 3. Lazarus Mumba v Zambia Publishing Company (1982) ZR,53 .:: -J2Legislation referred to: 1. The Land Survey Act, Chapter 188 of the Laws of Zambia Other Works referred to: 1. ODGER's Principles of Pleadings & Practice, 22nd Edition London Stevens & Sons, 1981 1.0 INTRODUCTION 1.1 This is an appeal against the Judgement of Honourable Mrs Justice S. Kaunda Newa in cause No. 2019/HP/ 2021, delivered on 23rd January 2023. 1.2 In the said Judgement, the learned Judge made the following directives, inter alia: (i) That the plaintiffs and the defendant shall together engage the offices of the Commissioner of Lands and the Surveyor General, to clarify any questions surrounding the subdivisions and for the office of the Surveyor General to verify the approved sub divisions. (ii) That this shall be done at both the plaintiffs' and defendant's cost, to be shared equally, -J3within three (3) months from the date of the Judgement. (iii) That the Surveyor General shall thereafter also report on whether the beacons that were placed on the subdivisions were done properly and whether there is need to amend the subdivisions and replace the beacons. (iv) That the report shall also state whether the beacons that were removed were lawfully placed, and if so, the defendant shall pay the cost of replacement of the said beacons, which replacement shall be done in the presence of all the parties under the supervision of the Surveyor General, within sixty (60) days of the Surveyor General's report. (v) That the report of the Surveyor General shall also indicate whether there was nothing wrong with the subdivisions that the office approved, in which case, the defendant will replace the beacons that were removed in line -J4with the approved surveyor's diagrams, and the replacement shall be done in the presence of all the parties under the supervision of the office of the Surveyor General. 1.3 In addition, the learned Judge made a finding that no damages· were occasioned by the registration of the caveat. 1.4 In respect to the reliefs for damages, the learned Judge dismissed the claims. As regards costs the learned Judge ordered that each party bears their own costs of the proceedings. 2.0 BACKGROUND 2.1 The Appellants, who were the plaintiffs in the Court below, on 10th June 2019, commenced an action against the Respondent as defendant, by way of writ of summons and statement of claim, which were amended on 11th September 2019. The reliefs claimed were as follows: (i) An Order that the defendant immediately replaces seven (7) lawful boundary beacons which he had deliberately removed from Stand No. 1236 Chilanga. The replacement of beacons to be witnessed by all parties concerned, including the interested parties. (ii) An Order that the defendant immediately removes a caveat which he had secretly put on Stand No. 1236 Chilanga, for no genuine reason, so as to enable the plaintiff to submit an application for consent for subdivision. (iii) An Order of Injunction restraining the defendant from further developing, carrying out any activity and for occupying Stand 1236 Chilanga REM, until after the title deed for the piece of land had been issued, as other plots on the same parent stand. (iv) Damages for delaying and frustrating the development of the plaintiffs at the land in question by the defendant since September 201 7, when he deliberately removed boundary beacons from the land in issue and has been refusing to replace them (to be assessed by the Honourable Court). -J6- (v) Damages for delaying the process of obtaining individual title deeds for subdivision of the property in issue, since March 2019, when the defendant had put a caveat for no genuine reason on the property (to be assessed by the Honourable Court). 2.2 The statement of claim consisting of twenty-three (23) paragraphs, made averments which clearly amounted to adducing evidence and brings out issues which do not speak to the reliefs which were endorsed on the writ of summons. We shall therefore only capture the averments material, relevant and necessary for the determination of the appeal. 2.3 According to the 1st Appellant, who is the overseer of the 2nd Appellant Church, Stand No 1236 Chilanga, belongs to the 2nd Appellant, who is the legal owner, having been issued with a certificate of title, following the Judgement of the Lands Tribunal. After evicting squatters, the Appellants decided to subdivide the land into five (5) subdivisions and sell off the subdivisions. -J72.4 The Respondent was offered the remaining extent of Stand No. 1236 Chilanga, which he accepted and settled the purchase price in instalments. It is alleged that on grading his plot and the neighbouring two (2) plots, the Respondent deliberately removed seven (7) boundary beacons costing K3,500.00 each, in respect to replacement. 2.5 According to the Appellants, the Respondent, despite several requests, and police intervention, refused to replace the beacons, alleging that, they were not lawful and that Stand 1236 Chilanga, was fraudulently acquired by the Appellants. 2.6 It was further averred that the Respondent secretly placed a caveat on Stand 1236 Chilanga, which has blocked the Appellants and other subdivision owners from processing of title deeds. 2.7 The Respondent settled its defence on 20th September 2019, in which he denied deliberately removing seven (7) lawful boundary beacons and averred that only four (4) beacons were accidentally removed. -JS2.8 According to the Respondent, he has never refused to replace the four (4) beacons. That the efforts to replace the four (4) beacons have been frustrated by the Appellants' refusal on several occasions to avail him survey diagrams. 2.9 As regards the caveat, the Respondent averred that he has an interest in the land, having purchased a subdivision. 3.0 HEARING AND DECISION OF THE COURT BELOW: 3.1 The 1st Appellant testified on behalf of both Appellants. The Court thereafter subpoenaed the Commissioner of Lands and the Surveyor General, who both testified. On the part of the Respondent, after his testimony, he called one witness, a retired police officer, who at the material time had attended to the parties' complaint over the beacons. 3.2 After considering the evidence, the learned Judge in her prolix Judgment, spanning to forty (40) pages, opined that the following facts were not in dispute; that the Appellants' sold to the Respondent a subdivision of Stand 1236 Chilanga. That the Respondent took a -J9grader to the property in September 2017, to have it graded. That the facts also not in dispute are that, following the grading, the Appellants informed the Respondent that seven (7) beacons had been removed as a result of the grading exercise, which the Respondent disputed, contending that only four (4) were removed. 3.3 The learned Judge formulated the question for determination as "whether the plaintiffs were entitled to the reliefs sought". The learned Judge then proceeded to review the evidence. The learned Judge made reference to Sections 20 - 22 of The Land Survey Act1 . The learned Judge then, pivotal to her Judgment, and on a tangent from the pleadings, made reference to the letter dated 30th April 2019, authored by the Acting Commissioner of Lands, addressed to the Appellants, stating that his office had discovered that the subdivision of Stand 1236 Chilanga, was done using erroneous lay out plans. The letter requested the Appellants to surrender the certificate of title, so that the anomaly could be rectified for the benefit of all those -JlOwho bought portions of land from them. The Appellants were in that respect asked to execute a deed of surrender, attached to the letter. 3. 4 Further reference was made to Section 23 of The Land Survey Act1 The learned Judge was of the view that it . was not clear as to what was wrong with the sub divisions that were done and approved by the Surveyor General's office. It was in that respect that the learned Judge made the directives alluded to under paragraph (1 .2) of this Judgement. 3.5 The learned Judge in addition ordered the removal of the caveat and refused the claims relating to damages. 4.0 THE APPEAL 4.1 Disenchanted with the Judgment, the Appellants have appealed to this Court, advancing the following six (6) grounds: (i) The High Court Judge erred in law and fact when she deliberately ignored the fact that the lawfully placed beacons the Respondent had deliberately removed from the land in issue and had been refusing to replace were -Jllnot only for the survey of subdivision of Stand No. 1236 Chilanga, but also for the survey of the parent land· agreeing with the ' Respondent's allegation that the land in issue was illegally acquired; (ii) The High Court Judge erred in law and fact when she unfairly directed against the Appellant's claim, that only Examination for the 7 lawfully placed beacons (4 for the parent land and 3 for the subdivision of the same) be done instead of replacement of beacons, and that the said exercise be done by the Appellants sharing payment of costs equally with the Respondent; (iii) The High Court Judge erred in law and fact when she deliberately ignored the evidence of two state witnesses, namely Commissioner of Lands and the Surveyor General respectively, regarding the allegations of the former Commissioner of Lands in the letter dated 30th April 2019, which the Respondent had -J12also been relying on to refuse to replace the beacons and to remove a Caveat from the Land in issue; (iv) The Judge of the Court below had misled herself through issuing a false statement on behalf of the Respondent and relied on the same to make a decision contrary to the facts of the testimony of the false witness, a policeman from Chilanga police station, that the reason the Respondent could not replace the lawfully placed beacons he had removed at the land in issue is because the 1st Appellant had refused to avail to him approved survey diagrams for subdivision of the land, when in actual fact it is the Respondent who had refused to collect the said land survey documents from the 1st Appellant, giving three (3) reasons for his refusal. (v) The High Court Judge erred in law and fact when she refused to grant the Appellants' -Jl3claim of damages against the Respondent for the inconvenience and frustration of the Appellant's development at the land in issue through delaying the process of obtaining certificates of title for subdivision plots which could have helped them to get finances; (vi) The High Court Judge erred by law and fact when she denied the Appellant's costs for the proceedings of the matter through supporting the Respondent's intention of grading a bigger portion of land from the Appellants, instead of maintaining the size he paid for to buy, by abusing the office of the Commissioner of Lands based on relationship and political affiliation (cadrelism), the criminality which could have succeeded had the Appellants complied with the request in the letter of Commissioner of Lands dated 30th April 2019, instead of taking the matter to Court as per the advice -J14of the Principal Land Surveyor for Ministry of Lands Survey Department. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 The heads of argument were filed by the 1st Appellant acting in person. They contain allegations based on political party inclinations, as well as extreme bias on the part of the learned Judge. Most of the allegations were not part of the proceedings before the trial Court. We will therefore only glean what is relevant and necessary for determination of the appeal; save to state that at the hearing, the Appellants wholly relied on the same arguments. 5.2 In arguing the first ground, the Appellants contended that the learned Judge ignored that four (4) of the seven (7) beacons, the Respondent deliberately removed, were for the parent land, which are different from those for the subdivisions. That by doing so the learned Judge supported the Respondent's refusal to replace the beacons based on the allegation that the land was acquired illegally. -J155.3 As regards the second ground, it was argued that verification of the beacons, including the four (4) beacons for the parent land, was not the right way to resolve the dispute; that therefore the directive issued by the learned Judge that the Appellants share the costs with the Respondent, who had committed a crime for removing the beacons which had lawfully been placed, was biased and extremely unfair. That the fair way should have been to order the Respondent alone to replace the beacons. According to the Appellants, that should have extended to the other three (3) beacons for the subdivisions, since the Commissioner of Lands and the Surveyor General had confirmed having received the site plan for the subdivision and approved the same. That based on the same approved site plan, the Surveyor General had proceeded to approve the survey diagrams. It was the Appellants' contention that in view of that, the Appellants had followed the procedures and had complied with Sections 21- 23 of The Land Survey Act1 . -Jl65.4 In arguing the third ground, it was submitted in line with the submission on the second ground, that the Commissioner of Lands and the Surveyor General had approved the survey diagrams; that the learned Judge should have rightly exercised her powers and ordered the Respondent to replace the beacons. 5.5 In respect to the forth ground, it was alleged that the learned Judge had put words in the mouth of the witness (DW2) the police officer, as at no time did the witness testify that "the plaintiff had refused and he went away with the documents." That this was done in order to justify the learned Judge's error of supporting the allegation by the Commissioner of Lands in the previous Government; in supporting the allegation that the Respondent's refusal to replace the lawfully placed beacons was based on the fabricated statement by the learned Judge. 5.6 According to the Appellants, what was said by the witness at the trial was that the Respondent had refused to collect the survey diagrams in issue from the 1st Appellant and that the police could not compel him. -Jl 7That the reason for the Respondents' refusal to collect the survey diagrams from the 1st Appellant whilst at Chilanga Police Station was that, the Appellants had not complied with the request from the Commissioner of Lands contained in the letter of 30th April 2019. 5. 7 In arguing the fifth ground, the Appellants submitted that, the Respondent by placing the caveat on the land, had caused the Appellants to suffer injury from the delay and frustrations in developing the land. That the Appellants deserve to be compensated for the injury for the inconvenience caused by the Respondent. 5.8 In arguing the sixth ground, it was submitted that taking into consideration the conduct of the Respondent which borders on criminality, the Court below should have ordered costs in favour of the Appellants, who suffered expenses in processing the matter. 6.0 RESPONDENT'S HEADS OF ARGUMENT 6.1 At the hearing, Counsel for the Respondent, Mrs Lukwesa relied on the Respondent's heads of argument which she augmented with brief oral submissions. The -J18first, second, third and fourth grounds of appeal were argued together. 6.2 It was submitted that, the trial court was on firm ground when it ordered the Appellants to comply to the request of the Commissioner of Lands in the letter of 30th April 2019, and directed both the Appellant and the Respondent to engage the offices of the Commissioner of Lands and Surveyor General to clarify questions surrounding the subdivision and for both parties to bear the costs. Reliance was placed on the case Galunia Farms Limited v National Milling Company & Another1 where, it was stated that "the burden to prove any allegation is always on the one who alleges." 6.3 As regards the issue of whether damages were due for removal of the caveat, it was submitted that the caveat was registered on 22nd April 2019 and the Appellant instituted court proceedings on 10th June 2019, less than two months after the caveat was placed. That there was no evidence to show that the Appellant had lodged any documents to register the subdivisions, prior to the lodgement of the caveat. According to the Respondent, -Jl9no damages were occasioned by the registration of the caveat. 6.4 It was further submitted that no evidence was produced to prove damages suffered by the registration of the caveat. That the Appellant failed to prove his allegations against the Respondent and therefore the appeal in respect to the four grounds is devoid of merit and should be dismissed. 6.5 Grounds five and six were argued in one limb and it was submitted that the learned Judge was on firm ground, in denying the Appellants damages and costs. Our attention was drawn to the case of JZ Car Hire Limited v Malvin Chala and Scirocco Enterprises Limited2 where the Supreme Court held that: "That it is for the party claiming any damages to prove the damages." 6.6 According to the Respondent, looking at the circumstances of the matter, the evidence on record shows that the parties have been embroiled in a dispute that they could have resolved by engaging each other as observed by the learned Judge. That the matter was -J20commenced in June 2019, while the Appellants refusal to assist the Respondent with the survey diagrams for the purpose of replacing the beacons was prior to commencement of the matter. It was contended that the delay in developing the properties was occasioned by the Appellants. That in the circumstance, both grounds of appeal lacked merit. 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. We will determine grounds one, two and three together as they are interrelated. They are all questioning the manner in which the learned Judge determined the matter. 7.2 This matter once again draws us back to the issue of the purpose and or function of pleadings. The question which is in controversy between the parties should clearly be ascertained as the defendant is entitled to know what the plaintiff is alleging against him; the plaintiff in turn is entitled to know what defence is being raised, 1n answenng the claim. In making a -J21determination, the Court should narrow down the matter to the real questions in dispute. As stated by the learned authors of ODGER'S Principles of Pleading & Practice 1 at page 88, the function of pleadings is to , ascertain with precision the matters on which the parties differ and the points on which they agree; and thus, arrive at certain clear issues on which both sides desire a judicial decision. The parties must always be compelled to clearly and intelligibly state the material facts on which they rely, omitting everything immaterial. 7.3 The learned author at page 99, goes on to state as follows: "The fundamental rule of our present system of pleading is this: every pleading must contain only, a statement in a summary form of the material fact on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which their facts are to be proved, and the statement must be as brief as the nature of the case." -J227.4 A perusal of the relief being claimed by the Appellants as endorsed on the writ of summons and statement of claim was under relief (i) for the replacement of seven (7) lawful boundary beacons, which were allegedly deliberately removed by the Respondent. As earlier alluded to, the statement of claim should not have been allowed in the state it was settled, as it contained immaterial and irrelevant facts and evidence. 7.5 However, in his concise defence, the Respondent admitted to having accidentally removed four (4) of the beacons and was ready to replace them once served with the approved survey diagrams. An admission having been made partially by the Respondent, what then remained was a determination in respect to the remining three beacons. The learned Judge should have then formulated the issue for determination in respect to the remaining three (3) beacons. That was not done. 7.6 For some unexplained reason, the learned Judge, in determining the matter, as earlier alluded to, went on a tangent and swayed from the pleadings and placed her whole determination of the matter on the letter from the -J23Acting Commissioner of Lands to the Appellants dated 30th April 2019. For ease of reference, this is the said letter as it appears at page 96 of the record of appeal (the record): "REQUEST TO SURRENDER ORIGINAL TITLE TO LOT 1236/M FOR CORRECTION PURPOSES". The above matter refers. Kindly refer to the above matter and the process of subdivision that you initiated on the above small holding. It has now been discovered that the subdivision that was done on the land was done using erroneous lay plans. There is therefore need to rectify the above annormally for the benefit of all those who bought portions from you as well as adjacent land owners. In view of the foregoing, you are kindly requested to surrender the certificate of title and to execute the deeds attached hereto". 7. 7 The afo restated letter as well as the surrender deeds were not disclosed or referred to, in the pleadings. In -J24fact, it was only used in the affidavit in reply to the application for an injunction. It also does not seem to be speaking to the same land as it is referring to Lot 1236/M and not Stand 1236 Chilanga. That aside, regrettably this letter formed the basis of the learned Judge's determination of the matter, on which she based her directives, which speak to verification of the approved subdivisions and a report to be rendered by the Surveyor General. In the case of Lazarus Mumba v Zambia Publishing Company3, the Supreme Court held inter alia as follows: "Although the trial court has a duty to admit and decide a case on a variation modification or development of what had been averred, a radical departure from the case pleaded amounting to a separate and distinct new case cannot entitle a party to succeed." 7 .8 Had the learned Judge not ignored, but seriously considered the testimonies of the Commissioner of Lands and the Surveyor General, she would have noted that there was no need for verification, as the Surveyor -J25General had no issue with the survey diagram or layout plans. The Commissioner of Lands testified that the surrender deed was not processed and therefore not registered. It should therefore not have been an issue. In addition, the Surveyor General testified as follows: "We are in a position to restore the beacons. However, that will depend upon the plaintiff to make a request to us and we issue an invoice to undertake the job. Then we would be able to restore the beacons ..... if we approved the survey diagram, then there was a site plan that was submitted to us ....w e can only proceed to number a property when a site plan is approved. The survey diagrams that were approved were numbered". 7. 9 As the Commissioner of Lands and the Surveyor General had no issue with the approved survey diagrams, the learned Judge erred 1n placing significance on the letter of 30th April 2019, as it was immaterial to the determination of the matter. The learned Judge should have limited herself to -J26determining whether the remaining three (3) beacons should be replaced by the Respondent. 7.10 As the old adage demands, he who alleges must prove; the issue for consideration by the learned Judge should have been to determine firstly if the remaining three (3) beacons had been removed and if so, were they removed by the Respondent. The Appellants bore the burden of proving the aforestated. 7. 11 A glean of the evidence shows that there was no pictorial evidence, physical inspection by the court or an independent witness, that indeed the three (3) beacons were removed and the removal was at the hands of the Respondent or as a consequence of the grading. The Appellants in our view did not prove their claim on a balance of probabilities. The claim on the three (3) beacons should have been dismissed, whilst entering Judgment on the four (4) admitted beacons. 7 .12 In respect to grounds four and five, the learned Judge is being attacked for refusing to award damages. Damages should not only be pleaded. There must be evidence adduced to show that the plaintiff did suffer • -J27j injury or damage as a result of the plaintiff's action or conduct. 7. 13 A perusal of the record shows that there were claims for damages under reliefs (iv) and (v) as endorsed on the writ of summons. However, a perusal of the proceedings in the court below shows that not an iota of evidence was produced or adduced in the court below. We would in that respect find no basis on which to fault the learned Judge. 7.14 The last ground attacks the learned Judge's refusal to award the Appellant costs. Costs are in the discretion of the court, although the general rule is that they follow the event. In directing that each party bears their own costs, the learned Judge explained that the directive was based on the conduct of the parties. We note from the Judgment, and the directives given, that there was no winner or loser in the matter. We would therefore not fault the learned Judge for not awarding costs to the Appellants. .. -J288.0 CONCLUSION 8. 1 The Order and directive given by the court below in respect to relief (i), appearing at page 39 of the record and as captioned under paragraphs (1.2) of this Judgment is set aside and replaced with the following Orders and directives: (i) That Judgment be entered in favour of the Appellants that the Respondent replaces the four (4) beacons removed as admitted. In that respect, the Appellants will make a request to the Surveyor General, who will in turn issue an invoice to undertake the replacement. The invoice should be issued within fourteen (14) days from the date of the request. (ii) The Respondent shall within sixty (60) days from the date of receipt of the invoice effect payment for the invoice to the Surveyor General. (iii) The Surveyor General shall undertake the replacement of the beacons within sixty (60) -J29J: days from the date of payment. This undertaking is in view of the evidence given by the Surveyor General, appearing at page 250 of the record as follows: ". .. Weare in a position to be able to restore the beacons. However, that will depend upon the plaintiff making a request to us and we issue an invoice to undertake the job. Then we would be able to restore the beacons." 8.2 The appeal having substantially succeeded, the Appellants are awarded costs of the appeal. Same to be restricted to out of pocket expenses as they acted in J. CHASHI COURT OF APPEAL JUDGE C.K.MAKUNGU A.M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE