Simon Mumba v Kabukabu Sikwebele and Ors (APPEAL No. 260/2022) (3 October 2024) – ZambiaLII

.: IN THE COURT OF APPEAL FOR ZAMBIA APPEAL No. 260/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SIMON MUMBA APPELLANT ox 50067. \.: AND KABUKABU SIKWEBELE 1 RESPONDENT ST NDOLA CITY COUNCIL RESPONDENT 2ND THE ATTORNEY-GENERAL 3RD RESPONDENT Coram: Chashi, Makungu and Sichinga, JJA on 18 September and 3 October, 2024 For the Appellant: Mr. W. Simutenda and Mr. J. Kapila of Messrs TMB Advocates, agents of Messrs K. Tembo and Company Advocates For the 1st Respondent: In person For the 2nd Respondent: No appearance For the 3rd Respondent: Mr. M.N. Chinyonga - State Advocate JUDGMENT Sichinga JA delivered the judgment of the Court. Cases referred to: 1. Yengwe Farms Limited and Another v Commissioner of Lands and Another SCZ Judgment No. 11 of 1999 Jl 2. Saidi Chibwana and Another v Marrian Mutinta Chitauka (suing as Administratrix of the estate of the late Hachaabwa Chitauka) SCZ Selected Judgment No. 49 of 2017 3. Lusaka City Council and Another v Grace Mwamba and Others SCZ Appeal No. 21 of 1999 4. Amina Maulid Ambali and 2 Others v Ramadhani Juma TZCA Civil Appeal No. 35 of 2015 5. Smith Silwana v The Attorney General & Another SCZ Appeal No. 1 of 6. Mwape v The People (1976) Z.R. 160 7. Emma Mainza and Others v Magness Gowera Siwale, CAZ Appeal No. 160 of2020 8. Nahar Investments v Grindlays Bank International (Z) Limited (1984) Z.R. 9. Anti-Corruption Commission v Barnet Development Corporation (2008) vol. 1 Z.R. 69 10. Wesley Mulungushi v Catherine Bwale Mizi Chomba (2004) Z.R. 96 11. Gibson Tembo v Alizwani SCZ Judgment No. 6 of 1996 12. Justin Chansa v Lusaka City Council (2007) Z.R. 256 13. Shamwana and 7 Others v The People (1985) Z.R. 41 14. Commonwealth Shipping Representatives v P & 0 Branch Services (1923) A.C. 212 15. Attorney General v Marcus Kampumba Achiume (1983) Z.R. 1 16. Mazoka and Others v Mwanawasa and Others (2005) Z.R. 38 17. Richard Muchaka Mwanambulo v Donovan Musoka Hikakonko CAZ Appeal No. 151 of 2020 18. Siyambango v Johnstone CAZ Appeal No. 35 of 2021 19. Hamalambo v Zambia National Building Society SCZ Appeal No. 64 of 20. Nye vNiblett(1918) 1 K.B. 23 J2 : 21. Barbara Bwalya Chibulu and Joseph Zulu and the Electoral Commission of Zambia, SCZ Judgment No. 49 of 2008 22. The Secretary General and/ or the acting Secretary General of the Zambia Red Cross Society v Charles Mushitu, SCZ Appeal No. 29 of 2016 Legislation referred to: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 2. The High Court Rules, Chapter 27 of the Laws of Zambia 3. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 4. The Supreme Court Rules (1965) 1999 Edition (White Book} Other works referred to: 1. Circular No. 1 of 1985 2. Megary & Wade: The law of Real Property 9th Edition, Sweet & Maxwell, 3. Black's Law Dictionary, Bryan A. Gamer, 9th Edition, 2004, A. Thompson Reuters 4. Halsbury's Laws of England, 5th Edition, Vol. 11(2009): CIVIL PROCEDURE 1.0 Introduction 1.1 This is an appeal against the Judgment of the High Court at Ndola, Lady Justice Mulanda, delivered on 6 May 2022. 2.0 Background 2.1 In this part of this judgment, we shall refer to the parties by their designations in the court below. The brief background of this matter is that Kabukabu Sikwebele, the plaintiff in J3 the court below (now 1st respondent) was allocated Stand No. LN-8841/810, Dola Hill, Ndola by Ndola City Council, the 4th defendant (now the 3rd respondent). The plaintiff paid the requisite fees for the property. She further allegedly dug a wall fence foundation and erected some panels on the four corners of the said stand. 2.2 The plaintiff subsequently learned that Simon Mumba, the 1st defendant (appellant now) had begun carrying out activities on the stand as he possessed a Certificate of Title (CoT). The plaintiff conducted investigations on the status of the stand with the 4th defendant. She discovered that the 2nd defendant, the Ministry of Lands, had allocated the land to the 1st defendant, Simon Mumba, when the said plot was allegedly reserved to be administered by the 4th defendant. The plaintiff alleged that 1st defendant's title was erroneously issued to him. 2.3 On 16 March 2018, the plaintiff took out an action against the said 1st defendant, 2nd defendant, 3rd defendant (the Attorney-General), and the 4th defendant seeking the following reliefs: (i) An order that Stand Number LN-8841/ 810, Dola Hill, Ndola is the property of the plaintiff; (ii) An order directing the 2nd defendant to cancel Certificate of Title issued to the 1st defendant herein in respect of Stand No. LN8841/ 810, Dola Hill, Ndola, for irregularity; (iii) Damages for trespass; J4 (iv) Any other relief the court may deem fit; and (v) Costs of and incidental to the proceedings. 2.4 In his amended defence filed on 10 June 2019, the 1st defendant alleged that the disputed stand was allocated to him by the 4th defendant on 2 December 2016, earlier than the plaintiff's purported allocation on 23 January 2017. He claimed the allocation to him was compensation for the 4th defendant's failure to secure a high-cost stand in his favour on two occasions. The 1st defendant denied that the plaintiff had carried out any activity on the disputed stand as she alleged in her statement of claim. 2.5 The 1st defendant asserted that he was the rightful owner of the disputed stand, having properly complied with the procedure of acquisition of the CoT. He further asserted that the 2nd defendant was within his powers to consider his application for land and make the offer to him, as at the time the defendant's agency had been revoked. That his 4 th acquisition of the stand was regular and proper as it was free from any encumbrances. 2.6 The 3rd defendant filed its defence on 29 July 2020. It was averred that as at 18 January 2018, the 1st defendant was the registered owner of the disputed stand. It denied the plaintiff's claim that the procedure of offering the land to the 1st defendant was flawed. JS 2. 7 In her reply to the defendants' defences, the plaintiff stated that it was not true that the 1st defendant was offered the disputed stand by the 4th defendant in a letter dated 2 September 2016, because the said stand was only made available to the 4th defendant by the 2nd defendant, for allocation, in the latter's letter dated 12 December 2016. She sustained her claim that she dug a boundary foundation and erected the boundary pillars. She stated that the 1st defendant's offer letter, which was allegedly issued to him by the 4th defendant was unsigned. 2.8 The plaintiff repeated her claim that the Stand's registration in the 1st defendant's name in 2018 was irregular, because as at 2018, the said stand was unavailable for allocation since it had already been allocated to her on 23 January 2017. She also maintained that the procedure to allocate the Stand to the 1st defendant by the 2nd defendant was not followed. 2.9 The 4th defendant filed its defence on 19 November 2019, after it had been joined to the suit. It averred that in 2016, it passed a resolution to allocate plots to senior members of staff and councilors. It stated that the 1st defendant's documents were not supported by any minute number. The 4th defendant further stated that it had no record of allocation of the said stand to the 1st defendant. That it never recommended him to the 2nd defendant. Further, that J6 its records showed that the land in issue was allocated to the plaintiff. 3.0 Decision of the court below 3.1 After the conduct of trial, the learned Judge considered whether or not procedure was properly followed by the 1st defendant in his acquisition of the disputed stand. She considered the 4th defendant's power to allocate land as provided in The Land Administration Circu Zar No. 1 of 19851 and the Su preme Court's guidance in the cases of Yengwe Farms Limited and Another v Commissioner of Lands and Another1 and Saidi Chibwana and Another v Marrian Mutinta Chitauka (suing as Administratrix of the estate of the late Hachaabwa Chitauka)2 to the effect that the Circular gives guidelines to councils to make recommendations to the Commissioner of Lands and that the Commissioner of Lands has discretion to either accept or reject a recommendation by a council respectively. 3.2 The learned Judge found that the process the 1st defendant followed to acquire the disputed Stand was through the 4th defendant. That the 1st defendant had flouted the procedure laid down in Circular No. 1 of 1985, when he acquired a Certificate of Title of the disputed stand. In line with the case of Lusaka City Council and Another v Grace Mwamba and Others3, the learned J udge ordered cancellation of the 1st defendant's CoT in respect of the J7 disputed Stand for non-adherence to the guidelines stipulated in Circular No. 1 of 1985. 3.3 The learned J udge, further found that the plaintiff complied with the 4th defendant's invitation to treat (also known as charge sheet), and paid all the requisite fees for the said Stand. The learned Judge was satisfied that the Stand in issue was properly allocated to the plaintiff by the 4th defendant. She ordered the 4th defendant to proceed to recommend the plaintiff to the Commissioner of Lands for issuance of an offer letter. The learned Judge declined to award the plaintiff damages for trespass as the 1st defendant was the registered owner of the land at the material time. 3.4 Following her findings in favour of the plaintiff, the learned Judge proceeded to make an order for costs as against the 1st defendant. 4.0 The appeal 4.1 Dissatisfied with the judgment of the lower court, the 1st defendant, now appellant, appealed to this Court, advancing the following grounds: 1. The learned trial Judge erred in law and misdirected herself when she held that an offer letter took precedent over a Certificate of Title in the presence of overwhelming evidence that there was a double allocation wherein the appellant's offer letter was issued earlier; J8 2. The learned trial Judge erred in law and fact when she held that the appellant's Certificate of Title be cancelled on the basis of procedural impropriety when it was impossible at the time to follow the procedure under circular No. 1 of 1985 as Ndola City Council's land agency was revoked for almost a year; 3. The learned trial Judge erred in law and misdirected herself when she refused to take judicial notice that the Ndola City Council, the Lands agency had been revoked at the time the appellant wrote an application directly to Ministry of Lands for issuance of his Certificate of Title even when the 2nd and 3rd respondents did not deny the same; 4. The learned trial Judge erred in law and fact when she held that the 1st respondent paid all the requisite land fees for the plot in issue in the absence of evidence showing that the 1st respondent was entitled to ten percent of the charged fees as an employee of Ndola City Council; 5. The learned trial Judge misdirected herself in law when she ordered that the 2nd respondent should proceed to recommend the 1st respondent to the Commissioner of Lands for issuance of an offer letter, without ordering that the appellant in whose name title was first issued should be reallocated a different plot; and 6. The learned trial judge erred in fact and misdirected herself when she held that the appellant's allegation that the 1st respondent abused her office in the manner plot Dola Hill 810 was allocated to her were unsubstantiated in the face of overwhelming evidence that the appellant's file went missing after the 1st respondent was issued an offer letter for the same plot. J9 5.0 Appellant's arguments in support of the appeal 5.1 At the hearing of this appeal, Mr Simutenda, learned counsel for the appellant relied on the appellant's detailed heads of argument filed on 22 November 2022. In the said arguments, only grounds one to four are presented. Grounds five and six are not. 5.2 In the first ground, the appellant contended that the trial Judge ought to have seen that there was overwhelming evidence that there was a double allocation wherein the appellant's offer letter was issued earlier. We were referred to page J49 of the judgment (page 59 of the record of appeal) where the learned Judge held as follows: "I am therefore satisfied that stand No. LN-8841/810, Dola Hill was properly allocated to the Plaintiff by the 4th Defendant. I order the 4th Defendant to proceed to recommend the Plaintiff to the Commissioner for lands for issuance of an offer letter." 5.3 It was argued that the decision of the learned trial Judge was to the effect that it varied the mandatory provision of the law under Section 33(1 ) of the Lands and Deeds Registry Act1 which provides as follows: "A Certificate of Title shall be conclusive as from the date of its issue upon and after the issue thereof, notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the President or otherwise, which but for Parts III to VII might be held to be paramount JlO or to have priority; the Registered Proprietor of the land comprised in such Certificate shall, except in case of fraud, hold the same subject only to such encumbrances, liens, estates or interests as maybe shown by such Certificate of Title and any encumbrances, liens, estates or interests created after the issue of such Certificate as may be notified on the folium of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever: a) Except the estate or interest of a proprietor claiming the same land under a current prior Certificate of Title issued under the provisions of Part Ill to VII; b) Except so far as regards the omission or misdescription of any right of way or other easement created in or existing upon any land; and c) Except so far as regards any portion of land that may be erroneously included in the Certificate of Title, evidencing the title of such Registered Proprietor by wrong description of parcels or of boundaries." 5.4 It was submitted that a Certificate of Title 1s conclusive evidence of ownership from the date of its issuance notwithstanding the existence of other interests in that land. That the appellant's CoT is conclusive evidence of his ownership of the land in dispute from the date of issuance regardless of the 1st respondent's interest in the land. 5.5 Counsel stated that it is clear that there were two offer letters issued by the 2nd respondent to the appellant and the 1st respondent for the Plot No. LN8841/810 Dola Hill, Ndola. That the appellant's offer letter was issued on the 2 September Jll 2016, and the 1st respondent's offer letter was issued on 23 January 2017. 5.6 The appellant advanced that the situation created by the 2nd respondent is to the effect that there are two competing interests over the same land: one, for the appellant pursuant to his offer letter dated 2 September 2016, at page 137 of the record of appeal; the other for the 1st respondent, by virtue of the offer letter dated 23 January 2017, at page 104 of the record of appeal. It was submitted that the learned authors of Megary & Wade: The law of Real Property2 at page 06-060 expressed that "where there are two competing interests in property, priority will be given to the deed that was registered first." 5.7 We were referred to the case of Amina Maulid Ambali and 2 Others v Ramadhani Juma4 where it was held that: "Where two people have competing interests, the person with the certificate of title is regarded as the lawful owner unless it is proven that it was unlawfully obtained." 5.8 It was submitted that according to the cited authorities, where there two competing interests, the one that takes precedent is the interest that was registered first. That the learned trial Judge erred when she delivered a judgment to the effect that the 1st respondent's offer letter from Ndola City Council took precedent over the appellant's CoT. It was advanced that the exception under the Amina Maulid Ambali case is that the CoT had to be unlawfully obtained. J12 5.9 It was submitted that the appellant's evidence was that he was offered two plots by Ndola City Council for which he paid the requisite amounts for both plots, which turned out to have encumbrances. He was then offered Plot Dola Hill 810 on 2 September 2022, as can be evidenced on page 137 of the record of appeal. Further, that at the time, the council's land agency had been revoked, which prompted him to write to the Commissioner of Lands. Page 138 of the record referred to. 5.10 It was explained that pursuant to his letter to the Commissioner of Lands, the appellant was availed an offer letter and invitation to treat, as at page 10 of the record of appeal, and he was subsequently issued with a CoT. It was argued that the appellant did not deserve to have his CoT cancelled as he obtained it in a lawful manner. 5.11 With respect to ground two, it was submitted that the learned Judge erred to cancel the appellant's title on the basis of procedural impropriety when it was impossible, at the material time, to follow the procedure under Circular No. 1 of 1985 as the council's agency had been revoked. That his title was neither obtained fraudulently nor improperly nor irregularly. In support of this submission, we were referred to the case of Smith Silwana v The Attorney General & Another5 to the effect that a CoT can be challenged and cancelled for fraud or for reasons of impropriety in its acquisition. It was contended that the appellant observed procedural rules at the material time incidental to obtaining a CoT. J13 5.12 On ground three, it was submitted that the learned Judge ought to have taken judicial notice that Ndola City Council's land agency had been revoked at the time the appellant applied to the Ministry of Lands for issuance of CoT. Counsel advanced that it is an established principle of law that a court should take judicial notice of matters of common knowledge and notorious facts which do not require evidence to be led. That revocation of Ndola City Council's land agency was a notorious fact which the learned Judge ought to have noted. That her failure to take judicial notice of that fact was an error at law. Reliance was placed on the case of Mwape v The People6, where Silungwe CJ stated inter alia that a court may, and in some cases must, take judicial notice of various matters. 5.13 The complaint under ground four is that the trial Judge erred in law and fact when she held that the 1st respondent paid all the requisite land fees for the plot in issue in the absence of evidence showing that she was entitled to ten percent of the charge fees as an employee of Ndola City Council. 5.14 It was argued that the 1st respondent agreed at trial that she only paid 10% of the amounts on her provisional offer and her receipts confirmed the same, yet the trial Judge was satisfied that she had paid in full on the basis of writings in pen on her provisional offer. Our attention was drawn to the case of Emma Mainza and Others v Magness Gowera Siwale7 , where we observed inter alia that the 1st respondent, in that J14 matter, 'had not produced her offer letter from the Commissioner of Lands or any receipt for the necessary payments which she ought to have paid if an offer had been made to her and accepted.' 5.15 In light of the above cited authority, it was submitted that the 1st respondent ought to have fully paid if an offer had been made to her and accepted. 5.16 The authenticity of the writings which the learned Judge relied upon has been challenged. Reliance was placed on Black's Law Dictionary3 which defines 'authentication' as: "Broadly, the act of proving that something (as a document) is true or genuine, especially so that it may be admitted as evidence." 5.17 It was submitted that the 1st respondent did not prove that the writing, on her charge sheet expressing "10% for employees = kl,250" was authentic by calling the person who wrote the said words as a witness at trial, who wrote the said words. 5.18 It was argued that the 1st respondent had ostensible or apparent authority when acting on behalf of Ndola City Council. Reliance for this submission was placed on the case of Grindlays Bank International (Z) Limited v Nahar Investments8 where it was held that: "Where the fraudulent conduct of the servant falls within the scope of the servant's authority, actual or ostensible, the employer will be liable." 5.19 Counsel submitted that the 1st respondent had the authority to call for the appellant's file. That after she called for the said JlS file, it went missing. That the learned Judge erred in fact when she held that allegations that the 1st respondent abused her office were unsubstantiated. 5.20 In light of these submissions, we were urged to order a restoration of the appellant's CoT. 6.0 The 1st respondent arguments 6.1 The 1st respondent filed her heads of argument on 9 September 2024, in which she responded to grounds one, two, five and six of appeal. We shall only record her arguments in relation to grounds one, two, three, and four as the appellant did not argue grounds five and six. 6.2 In response to ground one, the 1st respondent submitted that it lacked merit and ought to be dismissed on account that it was incorrect to assert that there was a double allocation with respect to the disputed stand. It was argued that Stand No. LN 884/810, Dola Hill, Ndola was allocated to the 1st respondent on 23 January 2017, by Ndola City Council which had the mandate to administer it pursuant to Circular No. 1 of 1985 which governs the procedure for land acquisition in Zambia. 6.3 It was argued that the appellant's assertion that the council was availed the mandate to administer the disputed stand as from 12 December 2016, lacked merit because by the same logic, the council would not have been able to offer the stand to the appellant as at 2 September 2016. Further, that the appellant was not allocated the said stand because his J16 purported letter of offer was unsigned, which position was affirmed by the council, as shown by the council's letter at page 112 of the record of appeal. 6.4 The 1st respondent contended that the appellant was issued with a Certificate of Title on the basis of the said unsigned letter and his own recommendation to the Ministry of Lands. She argued that procedure was not adhered to. That the requisite procedure, according to Circular No. 1 of 1985, was for District Councils to recommend an applicant to the Commissioner of Lands. 6.5 The 1st respondent submitted that the learned trial Judge could not be faulted for finding that the appellant flouted the laid down procedure when he acquired the subject property without a recommendation from the council. The 1st respondent equally placed reliance on the Yengwe Farms case wherein the Supreme Court Stated that Circular No. 1 of 1985 was intended to give guidelines to the District Councils which in turn make recommendations to the Commissioner of Lands. 6.6 On the appellant's reliance on section 33 of the Lands and Deeds Registry Act supra, the 1st respondent submitted that it is trite law that a Certificate of Title can be challenged and cancelled for fraud or reasons of impropriety in its acquisition. The case of Anti-Corruption Commission v Barnet Development Corporation9 referred to. She advanced that there was irregularity and impropriety in the manner the J17 appellant obtained title because at the time he applied to the Commissioner of Lands, for the subject property in his letter dated 29 August 2017, at page 138 of the record of appeal, the said land was not unencumbered. That the stand had already been allocated to the 1st respondent. 6. 7 The 1st respondent submitted that her offer letter from the council cannot be declared non-existent on account of the appellant's title, which acquisition of the land was improper. For this proposition, she relied on the case of Wesley Mulungushi v Catherine Bwale Mizi Chomba10 where the Supreme Court stated as follows: "The Respondent may not have secured title to the Stand at the time she offered to sell it to the Appellant but that did not diminish her entitlement to the property. We hasten to add that even though a title deed is conclusive evidence of ownership of land, there are other factors that precede the issuance of title." 6.8 It was submitted that at the time the appellant obtained title to the subject property, the 1st respondent had an equitable right to the land by virtue of the earlier allocation to her by the council. In support of her submission, the 1st respondent placed reliance on the case of Gibson Tembo v Alizwani11 where the Supreme Court held as follows: "An equitable owner in possession, for example, a purchaser under a contract of sale, would be protected even though he had caused no entry to be made in the register." J18 6. 9 On this note we were urged to dismiss ground one. 6.10 In response to ground two, the 1st respondent submitted that the appeal in its entirety must fail as it lacks merit. She reiterated her arguments under ground one that the appellant obtained title on grounds of procedural impropriety. 6.11 In addition, she contended that the appellant did not have any receipt with respect to the subject property. That at trial, he produced receipts with respect to other Stands. 6.12 She urged the Court to dismiss ground two in totality for being baseless. 6.13 In response to the third ground of appeal, Ms. Kabukabu presented oral arguments. That whilst the appellant bemoaned the fact that the trial court failed to take judicial notice of the status of the council's land agency. She stressed that the subject property was availed to the council to administer by Ministry of Lands on 12 December 2016, as per letter at page 109 of the record of appeal. She contended that the alleged suspension of the council's agency in June 2017 was inapplicable as the land had already been allocated to her in January 2017. 6.14 On the issue of re-allocation by the Ministry of Land, Ms. Kabukabu submitted that it is clear from the said letter from the Ministry of Lands, that the Commissioner of Lands had no role to play in the allocation of the subject property. 6.15 The 1st respondent urged the Court to dismiss the appeal in its entirety with costs. J19 7.0 The 2nd respondent's arguments 7.1 The council did neither filed heads of argument nor attended to the appeal. 8.0 The 3rd respondent's arguments 8.1 Similarly, the Attorney-General neither filed heads of argument nor appeared at the hearing of the appeal. 9.0 The appellant's arguments in reply 9.1 In reply to the 1st respondent's arguments, Mr. Simutenda relied on the appellant's heads of argument in reply filed on 13 September 2024. 9.2 In sum, the appellant restated what was in his earlier submissions. The addition to grounds one and two is the case of Justin Chansa v Lusaka City Council12 in which the Supreme Court held inter alia: that the authority to consider applications for land allocation from members of the public is vested in the President who has delegated this authority to the Commissioner of Lands; that an applicant for land has an option either to apply directly to the Commissioner of Lands, or to apply through a Local Authority which has been delegated powers to receive applications for land from members of the public; that where a member of the public opts for the second route, a Local Authority is mandated to advertise any land available, receive applications from members of the public and make recommendations to the J20 Commissioner of Lands; and the powers to allocate land and make offers to successful applicants is reposed in the Commissioner of Lands. 9.3 The appellant submitted that he informed the Ministry of Lands that he was allocated land by the council which the latter did not secure. He was then allocated the subject land but the offer letter was not signed and his record went missing. He urged the Court to allow grounds one and two and to order that his Certificate of Title of Stand No. 8841/810 be restored. 9.4 In replying to the third ground of appeal, the appellant refe rred the Court to the cases of Shamwana and 7 Others v The People13 and Commonwealth Shipping v Peninsular and Oriental Branch Service14• The import of these authorities being that a court may take judicial notice of notorious or well known facts which cannot reasonably be doubted. 9.5 It was submitted that the issue of the council's agency having been revoked at the time was a matter of public knowledge which the lower court would have ascertained from making an 1nqu1ry. 9.6 In reply to grounds four, five and six collectively, it was contented that the 2nd respondent did not exhibit any policies permitting it to allow the 1st respondent to pay only ten percent of the charge fees. It was submitted that this was an J21 abuse of authority. That apart from the issue of the council's land agency revocation, council employees, including the 1st respondent were suspended for mismanagement of land issues, which matter was in the public domain. 9. 7 In conclusion, we were urged to allow the appeal and restore the appellant's Certificate of Title. 10.0 Our considerations and decision 10.1 We have carefully considered the assailed judgment, the evidence on record and the arguments by counsel. 10.2 In the first ground of appeal, the appellant's main contention is that the learned trial Judge misdirected herself in law when she held that the 1st respondent's offer letter took precedence over the appellant's CoT when there was overwhelming evidence that there was a double allocation of the disputed property and the appellant's offer letter was issued first. 10.3 From the outset, the first ground of appeal 1s a mischaracterization of the learned Judge's holding. We have not been referred to a portion of the impugned judgment where the learned Judge made a finding that the 1st respondent's offer letter took precedence over the appellant's CoT. The learned Judge considered whether there was adherence to the procedure for land acquisition pursuant to Circular No. 1 of 1985. She found that the appellant acquired his CoT without the recommendation of the 2nd respondent to J22 the Commissioner of Lands. At page J45 (page 55 of the record of appeal) she made the following order pursuant to her findings: "Accordingly, I order the Commissioner of Lands to cancel the 1st defendant's Certificate of Title in respect of Stand No. LN8841/810, Dola Hill, Ndola, forthwith, for non-adherence to the guidelines stipulated in Circular No. 1 of 1985." 10.4 The learned Judge then went on to consider the status of the two offer letters. At page J45 of her judgment, she found that it was not in dispute that the appellant's offer letter is dated 2 September 2016, while that of the 1st respondent is dated 23 January 2017. That it was clear that the appellant's letter was earlier in time than that of the 1st respondent. However, she found that there was no dispute that the appellant's letter was not signed. She considered the validity of a letter without a signature at page J47 (page 57 of the record of appeal) as follows: "Stroud's Judicial Dictionary, John S. James, 5th Edition (Sweet and Maxwell, London 1986) at page 2431, defines 'signature' as: "The writing, or otherwise affixing, a person's name, or a mark to represent his name, by himself or by his authority, with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed." The only authentic offer letter which was issued by the 4th Defendant in respect of Stand No. LN-8841/810, Dola Hill, Ndola, as proof of allocation, is that of the Plaintiff." J23 10.5 The context in which the trial Judge considered to cancel the appellant's CoT was clear. It was on the basis of whether he had adhered to the procedure availed on Circular No. 1 of 1985. The trial Judge then considered the two offer letters on the record and found, as a fact, that the appellant's letter had never been authenticated with the author's signature. 10.6 We have gleaned from the record the 1st respondent's offer letter and the appellant's offer letter at pages 104 and 140 respectively. We find that the learned Judge's findings are well supported by the evidence on record. The thrust of the appellant's case in the court below and in this appeal was that his offer letter was first in time. Yet, it is curious to note that even on appeal, the full context of his unsigned letter does not grace the record. The first ground of appeal clearly lacks substance. It is without merit and accordingly fails. 10.7 Coming to the second ground of appeal, our understanding of the complaint is that the appellant could not strictly follow the procedure provided in Circular No. 1 of 1985 because the council's agency had been revoked by the Ministry of Lands. Therefore, it was erroneous for the learned Judge to cancel his CoT on the basis of procedural impropriety. 10. 8 We have perused the record of appeal and note that in paragraph 11 of his defence at page 70 of the record of appeal, the appellant averred that the Ministry of Lands was right in refusing to entertain an illegality and abuse by the 1st respondent through her letter of complaint against him J24 because that was the reason why Ndola City Council's land agency was revoked. Our understanding of this pleading 1s that the council's land agency had been revoked because of abuses such as the one the 1st respondent was perpetuating by complaining against him. However, the 1st respondent's letter of complaint to the Ministry of Lands is not on the record. 10. 9 It is on record that on 19 January 201 7, the 2nd respondent generated a charge sheet (invitation to treat) to the 1st respondent in respect of property number LN-8841/810 Dola Hill. Page 122 refers. This was followed by an offer of residential property made by the 2nd respondent to the 1st respondent dated 23 January 2017. Page 104 of the record of appeal refers. It is also on record that earlier on 2 September 2016, the council generated an offer to the appellant. The said letter at page 137 of the record of appeal is incomplete. However, it is common cause that the said letter was unsigned. 10.10 In his examination-in-chief at trial, the appellant testified that his file went missing, and soon thereafter the council's land agency was suspended and that is why he never got a letter of recommendation. Page 255 of the record of appeal refers. In cross-examination, he restated that the Ministry of Lands issued him an offer because the council's land J25 agency was suspended. He stated as follows at paragraphs 10 to 20 of page 263 of the record of appeal: "I was offered a piece of land by Ministry of Lands. I just applied to the Ministry of Lands, at the time the agency of Ndola City Council to offer land had been suspended. Yes, I confirm that I was not given the piece of land by Ministry of Lands on the basis of this offer letter and recommendation from Ndola City Council. I just applied for the piece of land." 10.11 At page J43 (page 53 of the record of appeal), the learned Judge came to the following finding regarding the issue of the council's land agency having been revoked: "I refuse to accept the 1st Defendant's reason for not obtaining a recommendation letter from the Council, that the Ndola City Council's land's agency had been revoked at the time, because when the Council failed to give him a signed offer letter, he sought audience with the Town Clerk. There is no evidence led that, at the time, the Council's land's agency had been revoked. His evidence was to the effect that the Town Clerk assured him that the land in issue was allocated to him, and was advised to conduct a search at the Ministry of Lands. At no time did the 1st Defendant claim that the Town Clerk advised him to apply directly to the Commissioner of Lands, because the Council's land agency had been revoked." 10.12 We cannot fault the learned Judge for her finding because under the first ground of appeal, the appellant argued that his unsigned offer letter of 2 September 2016 from the council took precedence over the 1st J26 respondent's letter of 23 January 201 7, a position from which he distances himself under this ground by asserting that he made a direct application for the disputed land to the Ministry of Lands because the council's land agency was revoked. Upon a perusal of his testimony, our view is that the learned Judge's findings were not perverse, in the meaning as held in a plethora of authorities including the case of The Attorney-General v Marcus Kampumba Achiume15 Ground two fails. . 10.13 On the third ground of appeal, the appellant complains that the learned Judge did not take judicial notice that Ndola City Council's land agency was revoked. We have shown in the previous ground that the appellant pleaded in paragraph 11 of his amended defence that the council's land agency was revoked. Yet he did not adduce any evidence to prove that averment. 10.14 The Supreme Court and this Court has stated in a plethora of cases that pleadings serve to give notice of the nature of the claim or defence, state the facts that each party believes to exist, narrow the number of issues that ultimately must be decided, provide a means to determine whether the party has a valid claim or defence, and create a record of what has been actually decided. The cases of Mazoka and Others v Mwanawasa and J27 Others16 and Richard Muchaka Mwanambulo v Donovan Musoka Hikakonko17 refer. 10.15 In the case of Commonwealth Shipping Representatives v P & 0 Branch Services supra Lord Summer held that: "Judicial Notice refers to facts which a Judge can be called upon to receive and to act upon either from general knowledge of them or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer." 10.16 In the case of Siyambango v Johnstone18 we were guided by the Supreme Court in the case of Hamalambo v Zambia National Building Society19 where it stated that the court can take judicial notice of matters of common knowledge which are so notorious that it may be unnecessary to lead evidence to establish their existence. We stated that in our view, these ought to be facts which are so commonly known that their existence is not in dispute. We gave a classic illustration in the old English case of Nye v Niblett20 where the court took judicial notice of the fact that cats are kept for domestic purposes. 10.17 In the present case, the appellant has argu ed that it is a notorious fact that the council's land agency had been revoked. Our view is that we are unable to ascertain the J28 assertion. As we have earlier stated, the appellant referred to the council's agency having been revoked in his defence. The onus was therefore on him to ascertain that crucial averment critical to his defence. He could not leave it to the mercy of the court to defend his position, by taking judicial notice of his assertion. We therefore, cannot impute that knowledge unto the learned Judge in this case. As a result ground three fails. 10.18 Turning to the final ground of appeal, the appellant's complaint is against the lower court's finding that the 1st respondent was entitled to pay ten percent of the charge fees as an employee of Ndola City Council. 10.19 The 1st respondent's testimony at page 207 of the record of appeal states as follows: "As prescribed in the offer letter in paragraph 1 thereof, I was required to pay a sum of K12,S00.00. Being an employee under Ndola City Council at the time it was a requirement that employees pay 10% of the prescribed land fee. Appearing at page 1 on the plaintiffs supplementary Bundle of Documents, is a charge sheet, also known as an invitation to treat by Ndola City Council which required me to pay 10% of the land fee." 10.20 Under cross-examination by the appellant's counsel, the 1st respondent confirmed that she paid 10% K12,500.00 as an employee and this was confirmed in writing and J29 stamped by the Finance Department as evidenced by the charge sheet at page 122 of the record of appeal. The cross-examination at page 220 of the record of appeal refers. The 1st respondent's evidence was also corroborated by Rita Kunda, DW2, the 3rd respondent's Senior Legal Assistant, who stated that Sikwebele paid the requisite fees to the council. Under cross examination by the appellant's counsel, Kunda stated that the 1st respondent paid Kl ,250.00. This evidence is corroborated by the receipt issued by the council at page 106 of the record of appeal. 10.21 Upon considering all the evidence with respect to the payment made by the 1st respondent, the learned Judge found and held at page J 48 (page 58 of the record of appeal) as follows: "As regards the 1st Defendant's contention on the fees paid by the Plaintiff, DW2 told the Court that the Plaintiff paid all the requisite fees which she was required to pay. Although no policy was exhibited which permits employees of the 4th Defendant to only pay ten percent of the charged fees, I am satisfied, based on the instruction written on the Council's invitation to treat (also known as charge sheet), appearing at page 1 of the Plaintiffs Supplementary Bundle of Documents, that the Plaintiff, as the 4th Defendant's member of staff, was permitted to pay ten percent as a full satisfaction of the land fees charged. J30 I, therefore, find that the Plaintiff paid all the requisite land fees for the plot in issue.,, 10.22 It is trite that an appellate court will rarely interfere with the findings of fact of the lower court unless in strict circumstances that warrant such interference. This has been stated in a plethora of Supreme Court and Court of Appeal authorities including the case of Barbara Bwalya Chibulu v Joseph Zulu and the Electoral Commission of Zambia21 where the Supreme Court, , citing the case of Attorney General v Marcus Kampumba Achiume supra guided as follows: "As an appellate court, we cannot interfere with the findings of fact made by a trial Judge, unless it is established before us that: 1. The findings in question were either perverse or made in the absence of any relevant evidence; 2. The findings were made upon a misapprehension of the facts; or 3. The findings were which, on a proper view of the evidence, no trial court acting correctly, can reasonably make.'' 10.23 Having perused through the evidence on record, we are of the view that the learned trial Judge properly and comprehensibly considered the evidence before her in arriving at her findings. The lower court's findings are in no way perverse. We, therefore, have no justifiable reason J31 to fault the lower court's findings of fact or proceed to reverse them. The fourth ground of appeal lacks merit. 10.24 The appellant has not advanced any arguments with respect to grounds five and six. In line with the Supreme Court's guidance in the case of Zambia Red Cross Society v Charles Mushitu.22 , we consider them abandoned. 11.0 Conclusion 11.1 In view of the foregoing, we find no merit in all the grounds of appeal and uphold the lower court's judgment. The appeal is accordingly dismissed. 11.2 Costs are awarded to the 1st respondent here and in the court below against the appellant, t b agreed or taxed in default thereof. J. Chashi COURT OF APPEAL JUDGE C.K. Makun .. COURT OF APPEAL JUDGE COURT OF APPE J32