Chiteka Kapepula v Malama Mushinga and Ors (2024/HP/0028) (9 December 2025) – ZambiaLII

I IN THE moH COURT or ZAMBIA 2024/HP/0028 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (C111,I ,Jun,d,rt,nn) BETWEEN: I • CHITEKE K.APEPULA PLAINTIFF AND MALAMA MUSHrNGA l •• DEFENDANT MASITALA NANYANGWE 2n DEFENDANT CHILAO NYIRONGO MWINDE LEGAL 3,4 DEFENDANT PRACTITIONERS (!>ucd m, a firml THE ATTORNEY GENERAL 4TH DEFENDANT Before the Honourable Justice S. Chocho, on December 9"', 2025 la chamben. Fnr the Ploin11ff- Mr. D. M. Bwalya - Messrs Bwalya Sampa Legal Practirioners. For rhe J s1 & 2nd Defendants: Ms. M. Mbu/o and Ms. C. C>use,1galumbwe of Mesdames Mbulo and Par1ncrs For rhc 3rd Defendant: No Appearance For the 1th Defc:,1dQJll: Mr. L. Kalinde (Slalc Advocate) Allomey General's Chambers JUDGMENT Cases re e"ed to: 1. Sithole vs The State Lotteries Board (1975) ZR 106. 2. Charles Kajimanga vs Mannetu Chilemya (2016} ZR 189. 3. Elias Tembo vs Maureen Chlrwa and Others Appeal No. 5 of 2018. J2 4 . liilct h estate of the late Qlt IVgosi (Suing as Administrator 0/ t e WQs lti d Another SCZ "9Sfon Ngosi.) vs The Attorney Genera 1 an Juctgment •• ••O. 18 Of 2015. S. Anti. t Corporation corruption Commission vs Barnet Developmen L . . •mttect (2008) Z.R. 69. . Nkongolo Farm Limited v Zambia National Commercial Bank Limitect & Otlters, SCZ Appeal No. 101 of 2004. · .Rosemary Phin Mazada v Award Karen Coleen (2008) ZR · 8 · Sailas Ngowani and Others II Flamingo Fann Limited Appeal No. 90 of 2016. 9. Sydney Choonga v Yona Daka and Muleza Mwiimbu and Company Appeal No. 209 of 2024. l 0 . Abenas United Limited v J.C Malunga and Company Appeal No. 150 of 2017. 11. Robert Owen Harris II Mopani Copper Mine PLC Appeal No. 167 of 2013. 12. Chitengi v Attorney General 2017/HP/1552. l3. Shell and BP Zambia Limited II Conidaris and Others {1974) ZR 281. J3 l . Section 33 of the Lands and Deeds Regi5try Act · Section. 34 of the Lands and Deeds Registry Act d nd · Lan Law (Nutshells), 1994, Third Edition, London: Sweet a Maxwell. · Section. 59 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. S. Halsbury's Laws of England Volume 38 in paragraph 1205 at page 738. 1 . INTRODUCTION 1. 1. This This Judgment is in respect of the Plaintifrs action against the J • and 2nc Defendants commenced by way of Writ of Summons and Statement of Claim dated January 121h, 2024. By an Order dated May 29''"·, 2024, the 3rd and 4th Defendants were added to the proceedings and the Plaintiff subsequently amended its Statement of Claim on July 3 J ,. , 2024. The Plaintiff claimed the following; An order that the purported Deed of Assignment registered by I J he 1,. and 2nr1 Defendants and relating to the remaining extent of Lot no. 11306/ M, situate at New Kasama, Lusaka be declared null and void· J4 111 n order for the canccllal1on of Certificate or Title Deed or obtained fraudulently in the name the I ~1 and 2n,1 or Derc nd::ints and rrlAung to remaining extent Lot No. I 1306/ 1 situate at New l(asama. Lusaka; iii) n order that remaining extent of Lot No. 11306/M situate at cw Kasama, Lusaka be reverted to the Chiteka Kapepula; iv) An order that the 1,1 and 2nd Defendants surrender or yield 1mmcd1atc possession of remaining extent of Lot o. 11306/ M situate at New Kasama, Lusaka in the City and Province of Lusaka; \') An order for the demolition of all structures and improrcments put up by the l and 2nd Defendants on the r.i remaining extent or Lot ~o. 11306/ M situate at New Kasa.ma in the City and Province or Lusaka: \'i) An order of Interim lnJuncuon restraining the 1' ' and 2n<l Ddendnnts either by thrmsrl\!cs their scrYant~ or agrnts or otherwise whosoever from remaining or continuing in occupat1on, 1rcspns. ing, dnlhng, bu1ldml-(. 01 workrng upon remaining c:\.tcnt ot Lot ·o 1 130b 1 ~1 s1tuatr dt ~l'\\" l\asnma in the C11, and Pro, 111< r of l.11._,,k,1, , iii l),1m;1ge:-. rur 1rcsp,1." w l,rnrl. JS viii) Damages for inconvenience, stress, mental torture and anguish; ix) Interest 011 all sums due; x) Costs; and xi) Any other relief the court may deem fit. 1.2. The 151 and 2nd Defendants entered Appearance and filed a Defence on Januru·y 25th, 2024, 1,vhich was amended on August 20Lh, 2024 in which the alleged negligence on the part of the 3rd and 4 1h Defendants and Counter-Claimed the following: i} A declaration that the 1st and 2nd Defendant were bonafide purchasers for value without nolice for the remaining extent of property No. L/ 11306/M; ii) A declaration and an order that the Certificate of Title CT 1750 /9-2023 the remaining extent of property No. L/ I 1306/ M issue by the 41h Defendant in the name of the l st an 2n◄1 Defendant is valid and was not obtained b:v fraud on the part of the 1~ , and 2nd Defend an ts; iii) An order that the and 4,1, Defendant compensate the 31'(1 or Plaintiff for the loss the remaining extent of Stand No. L/ 11306/M; J6 iv) In the alternative the 1" '' and Defendant be reimbursed the 2nd full purchase price by the 3rd and 41h Defendants; v) Damages for inconvenience; vi) Damages for negligence; vii) Damages for stress and mental anguish: viii) Cost: and ix) Any other relief the Court may deem fit. l .3. By and Order dated May 291h, 2024 the 3 rd and 41h Defendants were joined to the proceedings. l .4. The Defendant entered appearance and filed a Defence on 3rr1 September 16th, 2024. 1 .5. the 4th Defendant entered appearance and filed a Defence an Defence to the 1st and 2 nd Defendant's Counter Claim on November J 4lh, 2024 in which the 4,h Defendant denied negligence on the part of th~ Registrar. l .6. The Plaintiff joined issue with the Defendant's defence and filed a reply on January 30th, 2024. J7 2. EVIDENCE/ TESTIMONY 2. 1 • Trial was scheduled and heard on March 3 1st, 2025 and April 3rd, 2025. 2.2. The Pla intiff called 6 witnesses in aid of his case. PWl was one Chiteka Kapepula who is the Plaintiff herein. 2.3. PW 1 testified in chief that sometime in October 2023, the Plaintiff received a phone call from one of the neighbours who wanted to know if the plaintiff had sold the remaining extent of Lot 1 1306/ M New Kasarna, Lusaka (hereinafter referred to as the Subject Property). 2 .4. PW 1 testified that the extent of the land is 1.6968 hectares, which the Plaintiff has not sold. 2 .5 . PW 1 Le!ilified that following the phone call, the Plaintiff and his daughter, one Chiscla Kapcpula Simachcbelc visited the Subject Property and found beacons placed. 2 .6. PW l further testified that he discovered that the l st a nd 2nd Defendants claim ed to have boLtgh t the propcrt~· from a Mr. Chictek<' Kapepula . JS 2 . 7. PW I testified that the Plaintiff has never sold the Subject Property the l "1 a nd 2nd Defendants and the Plaintiff still remains the lcgaJ a nd righ tfu I owner of the su bjecl properly. 2 .8. P\V 1 testified that he together with his daughter went to Ministry of Lands where it was discovered that the ownership was changed from the Plaintiff to the 1,1 and 2nd Defendants and Certificate of Title No. CT 1750/9-2023 was issued in favour of the 1,1 and 2nd Defendants. 2.9. PWl testified that he never signed any conveyancing documents in fa,·our of the l ~• and 2nd Defendants and that the alleged Chiteka Ka pcpula is not the same as th<: Plaintiff herein but a fraudster. 2 . 10. PW 1 testified that he is still in possession of the original Certificate of Title No. 24174 for Subject Property. 2. l 1. PW 1 testified that the Ministry of Lands Register indicates that the Deed of Assignment to change ownership was lodged on September I SL, 2023. 2.12 . P\V I further tc~lificd thm Lh<.! Plainl1ff and his daughter reported the mt:itter to VJrJOdlancJs Police Station who summoned thP J ,• nnd 2n ! Defendants. J9 2 . 13. P\V 1 testified tha t th · 1 sl Defendant met him for the first lime al Woodlands Police Station and confirmed that the Subject Property was bought from a different Chiteka Kapepula. 2. 14. P\V 1 testified that he had Lot No. 1 1306/ M Lusaka subdivided into subdivision A, 8, C, D, E which were sold to various persons and that after subdividing, the Plaintiff remained with the Subject Property. 2. 1 5. PW 1 testified that his National Registration Card (NRC) is different from the one the purported Chiteka Kapepula used, in the purported conveyance of the subject property to the 1 s1 and 2 nd Defendants. 2 . 16 . P\V l testified under cross examination that he attempted to file a caveat but it was refused. 2. l 7. P\,V l testified under cross examination that the details on the two ~ f~C's arc not the same. 2.18. P\V l testified under examination that he has ne\·er obtain ed a or duplicate Certificate Title. 2. 19. PW I t stificd under cross exammation 1ha c the rt:ason he is saying the 1-.• nnd 2 ,., Ddend3nts arc· not owners is been use of the change of m, n~rship was noL genume J lO 2 20 The rt \\ ;J.., no re cx:im i11a11,,n 2.21 . P\V2 wns nnc Phtllt:mon K<.1nu.hc:ya, who filed a wilncsn st:.1tc;ment dated Apnl 211 • 1 • 20224 :1nd lc:Hificd in chief that the Plaintiff i~. rhc legal c1nd registered owner of the subJccl properly. 2.22. PW2 testified that the Pl:11ntiff subdivided portions nam<:ly A,B,C,D and E of Lot ro. 1 I 306/ M which he sold but the Subject Property has not bt>cn sold. 2.23. PW2 testified under cross examination that he purchased the properly in the year 2014. 2.24 . PW2 testified under cross examination that he met the Plaintiff when he purchased the property. 2.25. There was no re-examination. 2. 26. P\A/3 was one Alex Samawaya who filed a witness Statement dated April 2nd. 2024 and testified in chief that th Plnintiff sold subdivision □ of Lot o. 11306/ M, Lusaka at 1<240,000.00 by ContracL of Suk d~sled f'cbru:iry J.81 2014. " , 2 27. PW3 testified tha t the Plamtifrs land rcmarncd as the remaining extent of Lot l 1~3U(,f~1. h:1-. nnt bt•f·n sold LO :1mone. Jll ~untuT ,s the leg. I and nghtful owner oi the t ht' tu1,~ h P:ainn J"s T'it:e Deed .Uld u "~ls cc..: nfirmed that he was the owner. ne :'\sungo ~tpe.::eni Je~ "he..: filed a ";c,ess statement da:~'<5 Ap:-i! .:~d . .: 2-! .me testified in chief that tht"' Plaintiff s ld D .•' tnd J12 2.37. PWS was one Raphcal Thole who filed a witness statement dated April 2 nd, 2024 and testified in chief that sometime in 2014, the Plaintiff engaged him to look for purchasers of Subdivision A, B, C, D and E of Lot No. 11306/M, New Kasama, Lusaka. 2.38. PWS testified that the Plaintiff is the legal and rightful owner of the Subject Property. 2 .39. PWS testified under cross examination that it is not possible that the Plaintiff could be a fraudster. 2.40. PWS testified under cross examination that the purchaser met the Plaintiff when buying the land. 2 .41 . PW5 testified that under cross examination that he had the title Certificate of Title at aJI times and at no point did he lose or apply for a duplicate Certificate of Title. 2.42. There was no re-examination of PWS. 2 43. PW6 was one Chisala l<apcpula imachcb le who filed a witness sta tement dated April 2nt!, 2024 and testified in chief that the Plaintiff is Lhc legal and righLful owner of lhc subject property. 2 .44. P\V6 testiric-d that the Pl:1intiff hns not sold th<' Subject Pt·opcrty. J13 2.45. PW6 testified lhat the together with the Plaintiff, they received information that there were people placing beacons on the Subject Property and when the same was confirmed, they reported the maucr to Woodlands Police Station. 2 .46. PW6 testified that lhe 1 Defendant admitted that he saw the Plaintiff for the first time. 2 .4 7. PW6 further testified that at the police station, the 1111 Defendant alleged to have purchased the Subject Property from a different Chitekc Kapepula. 2 .48. PW6 testified that the Plaintiff has never sold the Subject Property and met the 1 Defendant for the 1• u time at Woodlands Police !ot Station. 2 .49. P\1/6 testified under cross examination that the lst and 2nt1 Defendant arc not the owner of the property. 2. 50. PW6 1e stifted under cross examination that the 1st and 2nd Defendants have not put up any structure on the property. 2. 5 J. There \\·as nolhmg in re-examination. 2 .52. The Dc-fcnd;ints c:1lled Lhrec \\'itncsscs 111 aid or their cnsc. D\V I ,,·as one M~lrima 1cholas Philip Mushinga the 1S L Defendant herein who fikd a wllncss statement dated August I 3th 2024 and , J 14 ,esi:.:-:ec c!lief :ha someti~e in Juh· 2023. he came across a 1:-: 2 - ., ;:,.., o· \': ~e ~1f:ed tha~ he got a contact number from the ad,·en and contactec he agen , one ~1ark Chanda and initiated discussions ::-ega:-ri:ng pu:-chase of the properry. uW: 2 • - ·. esufiec har. he then made arrangements to ,isit. inspect and a: c·, uate :he proper . ·. 2 .55. u\\": r.estified that he togetheT \\;th the 2~d Defendant ,;sited the propc-::-1-:. but did not proceed to purchase it as the plot size did not :-r:.ee: tnc:r expectat:ons. 2 56 ::)',1 cs:ified hat he dissatisfaction was communicated to the ; • .. cgc:-:: ~.iark Cha:,da who hen informed them about an altematin~ :,!0~ -;<.-in~ so:d b~- o:ie Chiteka Kapcpula \\·ho was described as an o:c :;:c:.:-..; anc !-'.t~ p:-... pen,· ,,as described as the remaining extent 2 -S7 ,'.J·.1 • • tt"c,·1fi,_d :ha th<:: agn·cd t(. \'ll'\\ the property and the agent JlS 2.58. D'A1 I testified I hat after scvcraJ visits to Lhc property, he decided Lo proceed with the purchase and the said ChiLeka Kapcpula availed him with his NRC, Advocate's business card and a copy of the Cc.-tifica lc of Title. 2.59. DWl testified that he then engaged services of Counsel to conduct a search at Ministry of Lands and proceeded with the conveyance if the information was accurate. 2.60. DW 1 testified that after the Ministry of Lands search, the Advocates provided him with a register \.vhich directed that Chiteka Kapepula was Lhc registered owner of the property and the property was not encumbered. 2 .6 1. DW 1 further testified that he then proceeded to instruct his Coun ~cl to inittalc the conveyancing process. 2.62. DW l Lcstific:d that the agreed purchase price was ZMW l .500,000.00 which was to be paid in two installments. 2.63. DV/ I tcslificd that upon pHymcnl of the full purchase price. the conveyancing procedures \\.·ere followed or done and the ) l>r and 2m1 Dcfc.:nchmb \\'<:n: issued \\ iLh :J Cc:n ificatc of Title. 2 .n'I D\V I Lc:~tif1c:d th:ll on or about November 7111, 2023. he was Sl1mmom.:rl to gi\'1' :1 "'l,1lnnc11t ;11 \Voncll,tnd:-. Police Station relating .. Jl6 lo trespass and he was informed that the conveyance may have been sub· . ~cct Lo 1l!cgalitv and fraud. 2.65 ow J tc ·r· . f · sti 1ed that he instructed his lawyers to confirm the raud allegations with the alleged Chiteka Kapepula's lawyers who advised that they could nol reach their client and provided his contact number which is unreachable to date. 2.66. DWJ testified that he and the 2 11d Defendant purchased the propert:y in good faith and did not commit any fraud. 2.67. DWI lcstified that during the conveyancing transaction, he had no knowledge of the person he was dealing with and that he was not Lhe real Chiteke Kapepula and that he was only made aware of this months' after the conveyance was made. 2.68. ow 1 testified under cross examination lhat the Plaintiff and the purported Chireka Kapepula's RCs are different and that the NRC they used to change O\\'nership is not for the Plaintiff. '._ _ OW I tcstrned under cross examination thal he met the Plaintiff for the I sl 1i mc al f he Police Stn!ion. 70. OW 1 testified under cross examination that he did not sign the """'C' of s,dc with the P/,1i11tiff. con t le• ·1 J 17 2 71 · • DW 1 tcslified under cross examination that the purchase price was sent to the 3r,1 Defendant. 2 72 · · DW 1 further testified under cross examination that he met the seller once and that the seller is not U1e Plaintiff. 2.73. OW] testified that the 1s, and 2nc1 Defendants have tried to bring the purported Chiteka Kapepula before court through his 1awyers but the attempts have been unsuccessful. 2. 74. DW 1 testified under cross examination that he first visited the Subject Property sometime in July, 2023 and that he saw some workers and neighbours but did not ask these people who the owner of the property v, 1 as. 2. 75. OW J testified that due diligence was conducted by dealing with the seller's lawyers and engaging on their behalf. 2.76. There \<\'as no re-examination. 2_77. OW2 was one Masitala Nanyangwc, the 2 Defendant herein \\'ho filed a witness sta tcmcn L dared I\ ugust I 31h , 2024 and testified in cl1icf that sometime in ,July, 2023, the I ~r Defendant informed her abouc a plot in Jbcx Hill being advertised in the llC\\'S . paper. 'J 78 DW2 testified thal they \\·c-rc.: dissatisfied \\'ith th, ~·. f - · . · c size o rhe plot ~1ftcr wh1di thl' agtnt informed tl1em 111·11 th en• \,·as c , nn old man Jl8 named Chitcka I<apcpula selling property namely the remaining extent of Lot No 11306/ M. 2.79. DW2 testified that they visited the property on several occasions before making the decision to purchase the property. 2.80. DW2 testified that after inspection of the property to their satisfaction, they informed the purported Chiteka Kapepula that they were ready to purchase the property. 2.81. DW2 further testified that the 1 and 2nc1 Defendants were availed si with a copy of the seller's NRC, his lawyer's business card and a Certificate of Title. 2.82. DW2 testified that they retained Advocates to assist with the conveyance of the property and check whether it was encumbered or indeed belonged to the purported Chiteke Kapepula. 2.83. OW2 testifit:d that OW 1 instructed Counsel to conduct a search at Ministry of Lands the search which revealed that the property was free from any encumbrance. ? 84_ DW2 testified that DWI then instructed Couns t - · e I o start the com·cyancing process. JI9 2 85 - -DW2 testified that the conveyance process begun and the full purchase price was paid after which the I i<1 and 211d Defendants were issued with a new Certificate of Title. -86. DW2 testified that 3 months after the conveyance was completed, the Is Defendant was summoned to WoodJands Police Station • where he was informed that he was trespassing on the property. 2.87. DW2 testified that DWI informed Counsel who then contacted the purported Chiteka Kapepula's lawyers who gave him the said Chiteka Kapepula's number \.Vhich is unreachable to date. 2.88. DW2 testified that she was unaware that the purported Chiteke l{apepula was not the actuaJ owner until they purchased the property. 2 .89. DW2 testified under cross examination that she did not meet the purported Chiteke Kapepula. 2_9 0. DW2 testified under cross examination that they visited the property more than twice and found people built around the property but they did not talk or meet any of them. DW2 testified under cross examination that she ha~ 2 91 s never met the • • · c:: Plain I iff. - J20 2 .92. DW2 testified in re-examination lhat she did not meet the purported Chiteka Kapcpula but the 1 Defendant did. st 2.93. D\V3 was one Mwewa Phiri who filed a witness statement dated March 17 1h, 2025 and testified in chief that the records at Ministry of Lands reveal that the Subject Property was held on title under the PJa;ntifrs name since August 271h, 200 l. 2.94. DW3 testified that the records further indicate that the Subject Property was assigned to the 1st and 2nd Defendants on September 5th, 2023 accompanied by the issuance of a new Certificate of Title. 2.95. DW3 testified that all the necessary criteria for the registration of the assignment was fulfilled and all necessary procedures were duh· observed. 2.96. DW3 testified under cross examination that according to the Land ·s Register at entry number 16, title was issued to the 1,1 and 211c1 Defendants. 2 .97. DW3 testified that she obscr\'ed during trial that the NRCs on record rcvcakd that the Plaintiff \\'as not the person who assigned tht: propert_\ and th · person who assigned the ubjcct Property may han.: m1srcp1 t·st:n tcd t h1.• Pbin1i1T. r ■ J21 2 9 - 8. DW3 testified d h under cross examination thal v,rhen she vettc L e documents, she did not vet against aJI Lhe documents existing on the file. 2 99 · · There was no re-examination. 2-100. The CourL directed that OW3 produce the Green File before Court, which file was submitted to Court and Parties allowed to view it. 2. l O 1. DW3 testified that the NRC submitted during the first Certificate of Title in the name ofChiteke Kapepula (on August 27th 2001) was , that of the Plaintiff and confirmed that the Plaintiff is the owner of NRC number 127879/ 31/1. 2. 102. DW3 further testified that the first Certificate of Title sitting on the Green File was issued to Chiteke Kapepula, the Plaintiff herein. 2. J 03. OW3 further testified that the Green File did not contain the conveyance documents pertaining to sell and transfer of the Subject Properly Lo the I st and 2ml Defendants. Confirmed that the documents of aJJ 1h e other Sub-divisions are on the Green File. 2 _ 1 04 . Tlic 3 r.1 ocrcndant did noL file any wiLncss staLement nor any Jcadinns save for Memorandum of Appearance "''ld f P b ~ O e ence. As a matter of fact Lhc 3rd DcfendanL was no represented nor did they utlcnd during Lrial. r J22 3. LAW AND SUBMISSION_§ 3.1. All partie r·1 • . . s 1 ed their written submissions. The Plamtlff filed on 24th April , 2025 the lsl and 2nd Defendant filed on May 22nd 2025 , and the 4th Defendant filed on August 21st, 2025 upon obtaining leave to file submissions out of time on. I shall not reproduce the submissions in full as the same are on record suffice to state that I have read and considered them. 3.2. The Plaintiff submitted that it is a notorious fact that in dealing with cases involving fraud and forgery, the Plaintiff has an obligation to prove his case. 3.3. The Plaintiff submits that the Plaintiff alleges fraud in the manner the property was sold by the purported Chiteka Kapepula who forged the NRC and Certificate of Title the Subject Property. .4_ The Plaintiff further submits that Section 33 of the Lands and Deeds Registry Act provides that a Certificate of Title is conclusive evidence of ownership and that Section 34 allows challenging the Certificate of Title where there is fraud. Placing reliance of lhc cases of Sithole vs The State Lott . 3. 5 . enes Board (1975) ZR 1061 and Charles Kajimanga vs Marmetu Chilernya (2016) ZR 1892, The Plaintiff submits that lhis is a I I J23 proper case involving fraud and Certificate of Title issued in favour ( of the 1" ' and Defendants is properly challenged. 2 nc1 3.6. The Plaintiff further submits that the principle of Bonafide Purchaser for Value Without Notice is never available in the presence of fraud and where a person who has no legal right to pass title to another and that for a party to benefit from the defence; the party relying on the defence should have purchased the property from the owner and not a fraudster. 3. 7. The Plaintiff submits that the l 61 and 2nd Defendants c1aim to have conducted a search at the Ministry of Lands by way of having the Lands Register printed and did not conduct a search on the Green File which is the standard of due diligence when purchasing land as stated by the Supreme Court in the case of Elias Tembo vs Maureen Chirwa and Others Appeal No: 5 of 20183. 3.8. The Plaintiff submits that the Lands print out produced by the 1 i-1 and 2"'' Defendants is of no consequence in light of the Supreme court case of Hlldah Ngosi (Suing as Administrator o f the estate of the late Washingston Ngosi) vs The Attor ney Ge neral and Another SCZ Judgment No. 18 of 20154 · m w h. i ch i . t was held as J24 "The l 3t Respond sh ent produced a computer print out to ow that title R had properly passed on to the 2 nd espondent U. l 'k · n I e a certificate issued by the Registrar under Sectio 23 n of the Lands and Deeds Registry Act, Chapter 185 .~ 0 the La.ws of Zambia, a computer print out J is not conclusi·ve proof of any matter concerning a property.,, 3 9 · - The Plaintiff submits that it is trite Jaw that land as valuable property calls for thorough investigations before purchase. Reliance was placed on the learned author of the book Land Law (Nutshells), 1994, Third Edition, London: Sweet and Maxwell in which it was observed as follows; "A purchaser is under an obligation to undertake full investigation of title before completing his purchase. He can only plead absence of notice if he made all usual and proper enquiries. If he does not do so, or is careless or negligent, he is deemed to have "constructive notice" ofa ll matters he would have discovered. A person has constructive notice of all facts of which he would have acquired actual notice had he made those inquiries and inspections which he ought reasonably to have made, the standard of prudence, being that of a man of business under similar circumstances. The purchaser should inspect the land and make inquiries as to anything which appears inconsistent with the title, offered by the vendor.,, ,,, J25 3. 10. The Plaintiff submits that the l st and 2nd Defendants were not Bonafide Purchasers for Value Without Notice but were simply careless and negligent in the manner they transacted with a person they ne\·er met at all. Further that had they carried out due diligence by conducting a search on the Green File, they could have discovered the Plaintifrs NRC. 3.11. The Plaintiff submits that the Plaintiff has suffered damages arising from the 1st and 2nd Defendant's actions and the 1st and 2nd Defendants Counter Claim should be dismissed. 3. 12. In response, the 1st and 2°<1 Defendants submit that a Certificate of Title is conclusive evidence of ownership as per Section 33 of the Lands and Deeds Registry Act and the Supreme Court decision of Anti-corruption Commission v Barnet Development Corporation Limited (2008) ZRS. 3. J 3. The 1st and 2nd Defendants submit that Section 59 of the Lands and Deeds Registry Act provides that a Bonafid p h e urc aser who pa~·s reliable consideration acquires a good litl e. 3. J 4. The 1' · and 2nd Defendants submit that LI 1ey conducted all the required due diligL·nce and that no adv . . e1s e claims or encumb . tances \\ ere re,·c~lccl. J26 .J. 1: -. Thl' I nna ) , 1 .. - '"' Dt'fcndants s b . '° r' bona fd - LI mil thnl the Is, and 2111 ' Defendants c Plln:•hasc. C .. t condu d Is or value without adverse notice and they c:-tc- due ctT 1 igcncc before purchasing the properly. 3 • 1 The I s, d :'>. an 211r1 D r c,cndants submit that the Plaintiff has alleged u fra ud and iat 1i as not proved the fraud. 3. 17. The 1 :.land D f 2ncl e endants submit that the 1111 and 2nd Defendants a rc undisputedly in possession of a Title Deed which grants them u nequivocal rights over the property and that the law only permits fraud as a vitiating factor. 3. 1 8 . The 1 and Defendants submit that the particulars of the s, 2nd allegations of fraud must be clearly and distinctJy pleaded and pro\·ed by evidence and that there can be no presumption of fraud. 3. I 9. The J :-1 a nd 2nJ Defendants submit that the Plaintiff has failed to meet rhe required standard of proof and failed to lead evidence to proof the fraud. ?Q The 1 ,, :ind 2 nd Defendants further submit that there is an issue of 3 .- . negligence to be determined f!s relates 10 the Jrd and 41h Dcfcnci.-111 ts. _ . Th<' 1: :;t a nd 2nd Dcfcnd:_111Ls submit that 31·d and 4th defendan ts 3 21 ,J -~ dur,· l)f c-;1n: to ensure that chc: lnnd lransaction and 1 ·ts ()\\'Cll ,. . • - - - -- J27 documentation wer I e egally sound, authentic and properly verified and the failure th ereof amounted to breaching of duty. 3.22. The 1st a d 2 n nd Defendants submit that the 3rd Defendant feJJ below the t d . . s an ard of professional care thereby breach mg their duty and enabling a fraudulent conveyance. .23. The 1st and 2nd Defendants submit that they have suffered damage as a result of the 3rd and 4th Defendant's action. 3.24. The 4th Defendant submits that when a party alleges fraud, that party is obligated to provide proof of their allegations and that the burden of proof required as greater than that in a standard civil action. 3.25. The 4,11 Defendant submits that the Ministry of Lands is a public body and liability in negligence must be established by demonstrating the existence of the government institution. 3 _ 26 _T he 4 111 Defendant submit that there exists no express statutory provision within the Laws of Zambia which specifically mandated or imposes upon the Ministry of lands and Natural Resources a duty to detecl fraud. I J28 t 3.27. The 41h O e cndant submits that the inability of the Ministry of Lands to dct h ect t e alleged fraud docs not constitute negligence on the part of the Defendant. 41h 4 · COURTS DECISION 4 · 1 · 1 have had occasion to review and consider the Parties pJeadingS, evidence and submissions for which 1 am grateful. Having considered the Plaintifrs claims and the ls and 2nd Defendants ' counter-claim, the legal issues for determinatfon can be summed up follows; i) Whether the J st and 2°<1 Defendants have valid title over the Subject Property; and ii) Whether the Defendant can recover from the 3rd and 4th Defendants. . . section 33 of the Lands and Deeds Registry Act provides that a 4 2 Certificate of Title is conclusive evidence of ownership of land by a holder of a Certificate of Title. Section 33 provides as follows: ''A certificate of Title shall be conclusive as from the date of its issue and 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 or to have priority; the Registered J29 Proprietor of the land comprised tn such Certificate shall, ( except in case off raud, hold the same subject only to such encumbrances, liens, estates or interests as may be 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 thefolium of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever." 4 .3. Punhermore Section 34 of the Lands and Deeds Registry Act, provides that a Certificate of Title can be challenged and cancelled for fra ud or reason of impropriety in its acquisition. 4 .4 . Section 34{ lt(c) of the Lands and Deeds Registry Act provides as follows; u34_ (1) No action for possession, or other action for the recovery of any land, shall lie or be sustained against the Registered Proprietor holding a Certificate of Title for the estate or interest in respect to which he is registered, except in any of the following cases, that is to say: (c) the case of a person deprived of any land by fraud, as against the person registered as proprietor of such land through fraud, or against a person deriving otherwise than as a transferee bona.fide for value from or througha person so registered through fraud". 4 .S. The Supreme Coun in tht· c,\SL' of Charles Kajirnanga v Marmetus Chilcrnya SCZ Appeal No. 50 of 20142 statC'd as follows: J30 ·~ cert';J1 .; cate of title is conclusive evidence of ownersh r· p of the property to which it relates. Jt can only be nullified iff raud in acquisition is proved." -L6. The Plaintiff contends that there was fraud in the way the 1" ' and Defendants obtained their Certificate of TiUe of the Subject Property. 4.7. It is a trite principle of law that in order for an allegation of fraud to succeed, it must be specifically pleaded and proved to the required standard of proof which is slightly higher than the balance of probability. Jn the case of Nkongolo Farm Limited v Zambia National Commercial Bank Limited & Others, SCZ Appeal No. 101 of 20046 it was held that: "Where a party relies on any misrepresentatfon, fraud, breach of trust, wilful default or undue influence by another party, he must supply the necessary particulars of the allegation in the pleadings. Fraud must be precisely alleged and strictly proved. There is no presumption of fraud." .s. The case of Rosemary Phiri Mazada v Award Karen Coleen (2008) ZR 1297 is instructive on the principle th at w h en there is an allegation of fr:rnd in a case, lhc partv· alle gm• g the fraud must specifically prove the allegation. ll \\'as held in th1. s case as follows: ------------- , J31 "A Defe nd t · d t an wishing to rely on the defence off rau mus ensure that it is clearly and distinctly alleged. At trial the Defendant must lead evidence to clearly and distinctly prove the allegation". 4. 9. Furthermore, lhe Supreme Court in the case of Sallas Ngowani and Others v Flamingo Farm Limited Appeal No. 90 of 2016 also stated as follows: "Where fraud is the basis for the application for an order directing cancellation, such fraud must be specifically alleged in the pleadings and proved at trial". 4.10. On perusal of the record before me, it can be revealed that the Plaintiff has specifically alleged fraud in paragraph 9 of the Plaintiff's Amended Statement of Claim. Furthermore, the evidence on record proves that indeed there was fraud. The Plaintiff was before Court and it has been proved that he is the real Chitekc Kapepula and a comparison of the NRC's appearing at page 9 of the Plaintiff's bundle of documents and Page 19 of the 1s , and 2nr1 Defendants bundle of documents shows that the purported Chiteke J(apcpupla who is the seller forged the NRC at pag c 19 o f t h e J s, ..ind 2,.,1 Defendants bundle of documen1s in Or d ci . to pass off as the Plaintiff. A further perusal of the Certificates f T" . 0 itlc appearing on ·rr record show discrepancies; The Plaint C .. 1 s e, llficatc of Title reads the 'remaining' extent of Lot N I l JOf> u. / M Lusaka while the J32 purported Chiteke I( apcpula's Certificate of Title reads 'Remaing ( Extent of Lot N . o. 11306/ M Lusaka of which the word Lot is wntten ' differcntlv o b I . f h · n ot 1 Certificates of Title. f,urthcr. the top nght o t e ·r Pl . rs amt1 Certificate of Title front page reads DRJ while the Purported Chiteke l<apepula's reads DR I Ob. The evidence adduced also shows that the foroed NRC was used to obtain the Certificate t> of Title held by 1s1 and 2nd Defendants. 4. 11. The 4th Defendant has also adduced evidence to show that the Plaintiff is the legal owner of the Subject Property and that the Seller obtained a duplicate Certificate of Title fraudulently, the title which \\'as used in the conveyancing process under which the l st and 2nd Defendants obtained their Certificate of Title appearing at page 62 of the I ~1 and 2nd Defendants bundle of documents, at the 1,1 and 2 nd Defendants cost. 4.12. rn light of the foregoing, I am satisfied that indeed there was fraud in the \\'ay the Is • and 2nd Defendants obtained title and the fraud has been proved to the requite standard. I order that the Certificate of Tille 1o. CTl 750/9-2023 BE and JS HEREBY cancelled forthwith and Lhe Deed of Assignment registered by the 1st and nd Dcfcndanls relating to 1hc Subject Propert\' · d , - 18 cc 1a red null and ,·oid. I furrhcr order that the J,, and 2nt1 r 0 e,endants surrender < vacant po~scssion of lhc Subicct p ropeny to the Plaintiff and if J , J33 there arc an , d Pl · tiff is ~ cvclopm<'nts on the Subject Property, the a,n at liberty to demolish the same, at the cost of the l and 2nc1 ( s1 Defendants. 4. l 3. I now address my mind to the second issue of whether the J and s1 41h 20" Defendants have a valid claim against the 3 rd and Defendants. The IM and Defendants impute negligence on the 2nc1 part of the 3rd and 41h Defendants. t 4. 14. From the onset, I must state that I have taken note of the lS and 2nd Defendants defence of Bonafide PUrchaser for Value Without Notice. It is trite that the defence can only be relied on if it can be shown that the party relying on the defence made all the proper and usual enquiries. The l st and 2nd Defendants state that they conducted a search at the Ministry of Lands and rely of the Lands print out to show that they carried out sufficient due diligence. I am of the considered view that the l st and 2nd Defendants did not carry out all propc.:r and usual enquires required as related to the purchase of land; the case of Hildah Ngosi (s ui. ng as Administrator of the estate of Washington Ngosi) v The Attorney General and Another SCZ Judgment No. 18 of 20154 rcft.:rs. IL was st~ted in this case as follows: "The 1st Respondent produced a computer print out to show that title had pronerly r passed on to the 2nd -------- r ♦ J34 Respondent. Unlike a certificate issued by the Registrar ( under section 23 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, a computer printout is not conclusive proof of any mailer concerning a property." 4.15. The J rd Defendant owed the t~t and 2nd Defendants a duty of care to ensure that their client's identity was true and had a legitimate interest in the property failure to which, jt amounted to breach of the dutv and the 1st and 2nc1 Defendant's have suffered loss; therefore, the Jst and 2nd Defendants have a valid claim in negligence against the 3rd Defendant. 4 .16. The Court of Appeal decision of Sydney Choonga v Yona Daka and Mu.leza Mwiimbu and Company Appeal No. 209 of 20249 is instructive on how to approach such matters. The Court in this matter stated as follows: "However, as rightly pointed out by the Appellant, the transaction was governed by the LAZ General Conditions of Sale, which were expressly incorpo t d . ra e tn Clause l of the contract of sale. These General C onditions impose specific responsibilities on a vend ors responsibi li.ties on a legal practitioner, especially th when at practitioner receives and hold the p h urc ase sum . tn trust. General l J35 Condition 3(b) explicitly states that the deposit is to be paid to the vendor's advocate as stakeholder for the parties, while General Condition 7(1.J and (vi} makes it clear that funds must be held in trust and refunded if the purchaser does not receive vacant possession. These provisions make it abundantly clear that once the vendor's advocate receives the purchase sum in trust, they are not merely an agent but a stakeholder. We a.re of the firm view that these conditions are not merely procedural, they are protective in nature, intended to safe guard the interests of purchasers who may otherwise be vulnerable in conveyancing transactions. They define the Advocates relationship with both parties and impose a clear obligation on the vendors Advocate's relationship with both parties and impose a clear obligation on the vendor's advocates to act with integrity and impartiality in handling the deposit". Furthermore, the Court went on the stat us follows: A " ... the role of a stakeholder is fundamentally different from that of a mere agent. Unlike an agent, who owes duties solely to their principal, a stakeholder especially in the conveyancing contex t, assume fiduciary duties to J36 th bo parties in a transaction and must act impartially. This dual duty cannot be avoided by pleading lack 0 1 Privity with the purchaser". · 1 7 · In light of the above authority and m light of that fact that the con tract of sale between the 1 and Defcndan ts and the s1 2nc1 purported Chiteke Kapepula was governed by the Law Association of Zambia General Conditions 2018, I find that the 3rd Defendant had a duty to protect the I st and 2nd Defendants by ensuring their client's identity was true and had valid title over the Subject Property. 4. I 8. The 3rd Defendant received payment as a stakeholder and therefore, the Defendant had a duty to ensure that the money was paid to 3n1 a genuine vendor, the case of Abenas United Limited v J.C Malunga and Company Appeal No. 150 of 20171° refers. I therefore order that the 3r1t Defe nd ant pays the J '-1 and 2 nd Defendants the sum of ZMW 1,500,000.00 and further order that interest be paid on the sum at the average short-term bank deposit rate from the date of issue of the Writ of Summons to the date of Lhis J udgment and thereafter. up to the date of settlement. imcrest shall be compuced at the current lending rate as determined by the Bc1nk of Zambia. , J37 4 · 19 · 1 am of the considered view that the Ministry of Lands has a duty to prevent fraud by ensuring that all documents lodged speal< to those existing on the Green File. A Registrar issuing/changing title is reasonably expected to inspect all documents on record faiJure to \\'hich Lhere will be negligence on the part of the Registrar and in an event that loss is occasioned to a party/ parties, liability in negligence arises. The Defendant therefore, had a duty to 4th prevent fraud by carefully reviewing all documents on record; had DW3 done Lhe same, the fraud wouJd have been detected and prevented. The 4•h Defendant failed to exercise such care thereby causing the 1 ~ and 2nd Defendant to suffer loss. 4 .20. The 1~ • and 2 nd Defendant are therefore, entitled to damages in light nd of the above. As the record will show, the Jst and 2 Defendants have not shown/proved the extent of damage or in an event that there are improvements on the Subject Property, the extent of the improvements. I rherefore, refer this matter to the Honourable District Registrar for assessment of damages as relates to the 1 i.i and 2 Defendants claim. These damages found due are to be paid n" by the 4'h Defendant. 4-21-The Plaintiff and J-.• and 21111 Dcfcndanls ha,·c claimed for damao b cs for m<.:ntal distress and, I shall deal ,s,•ith their claims collecli\'e)\'. J38 ..J - 1· The Supreme Coun in the case or Robert Owen Harris v Mopani Copper Mine PLC Appeal No. 167 of 201311 guickd ,s follo"·s: ''. .. a claim for mental distress or anguish is a separate head which the trial Court is obliged to consider, when pleaded." r 4.23. On perusal of the record. I do nol see any e,,idence or circumstance which shows that the parties suffered mental distress/ anguish of an,· kind. I therefore dismiss the claims as relates to damages for me-ntal distress and anguish. 4 __ -t. 1 must srace for the record that che Ministry of Lands should at all times exercise/ carry out cheir duties ,dth outmost care and diligence. The laxity and negligence exhibited in handling of this con,·e_,·ance is unforrunate. -L15. The Plain ti IT also claims damages for trespass. Trespass to land can be defined as the unjustified/ unlawful interference \\i th the possession of land. Halsbury>s Laws of England Volume 38 in paragraph 1205 at page 738 tates as follows: uEvery unlawful entry by one person on land in possession of another is trespass for which an action lies although no actual damage is done ... A person trespasses upon land if he wrongfully sets foot on, rides or drives over it, or takes possession or pulls down or destroys anything permanently fixed." J39 -L26. ln order for a p" < ' U ·· tv ~, lo succeed m. a claim for Lrespass, 1 · t mu st be nd shown that the party claiming is the owner of the property a th he/ she did not invite the persons (purported trespassers) on e property. The case of Paul Chitengi v Attorney General 2017/HP/155212 refers for persuasive authority. 4 .27. In Lhe present case, it has been established that the Plaintiff is the st legal owner of the Subject Property and did not invite the 1 and 2nr1 Defendants onto the property. I am of the view that there has been a violation of the Plaintiffs right of possession and the right of the use of the property has been disturbed by the 1 st and 2nc1 Defendants and therefore, the l and 2nd Defendants are liable in si trespass. The case of Shell and BP Zambia Limited v Conidaris and Others (1974J Z.R. 281 so refers. I therefore order Lhat the 1"'' and 2nd Defendants pay the Plaintiff damages in the sum of Zt\1\V 50,000.00. J40 5. CONCLUSION 5. 1. ln light of the foregoing, I order as follows: i) Certificate of Title No. CT 1750 /9-2023 belonging to the J ~1 and 2nd Defendants be cancelled forthwith; ii) Vacant possession of the Subject Property be handed over to the Plaintiff and the Plaintiff is at liberty to demolish any structures on the Subject Property, at the 1st and 2nd Defendants cost; iii) The 3rt1 Defendant pays the 1st and 2nd Defendants the sum of ZMW 1,500,000.00 and interest be paid on the sum at the average short-term bank deposit rate from the date of issue of the Writ of Summons to the date of this Judgment and thereafter, up to the date of settlement, interest shall be computed at the current lending rate as determined by the Bank of Zambia; iv) The l ••1 and 2nd Defendants claim as relates to damages for the 4111 Defendant's negligence succeeds and is referred to the District Registrar for assessment of damages; and v) The I '1 and 211• 1 Defendants pay the Plaintiff damages for trespass in the sum of ZMW 50.000,00. 5 2. Costs for the Plaintiff to be paid by the Defendant's in equal portion and 10 be taxed in default of agreement. J41 5.3. I further ordc th· • d , lO · r at interest shall he paid on all sums found uc ·rr the Pl · amt, and the I 111 and 2 11<1 Defendants at the average shortt b · W ·t of erm ank deposit rate from the date of issue of the n th Summons to the date of this Judgment and thereafter, up to e date of settlement, interest shall be computed at the current lending rate as determined by the Bank of Zambia; 5.4. Leave to appeal is granted. Delivered at Lusaka on December 9th, 2025. l I"' i\ H~~ UBLIC OF ZAMBIA _ ___ s:::::a...,,~_.:U:~"~U-1-· COURT OF ZAMBIA bl, s. CHOCHO lf4I HIGH COURT JUDGE U9 DEC 20Z5 ~ S. CHOCHo J P. 0. BOX 50067, LUSA.KA