Stiffstick Industries Limited v Dahua Enterprises Limited and Ors (2017/HP/1929) (23 September 2025) – ZambiaLII

- IN THE HIGH COURT FOR ZAMBIA 2017/HP/1929 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Division] BETWEEN: PRINICIPAL STIFFSTICK INDUSTRIES LI. ... PLAINTIFF &,~ ~ 2 3 SEP 2025 · . AND DAHUA ENTERPRISES LIMITE EFENDANT ISTRY. ATTORNEY GENERAL DEFENDANT 50067, L (being sued as Representative of the Commissioner for Lands and the Office of the Surveyor General} MAWELE RANWELL 3RD DEFENDANT ALL OCCUPIERS OF STAND NO.12863 4TH DEFENDANT Before the Hon. Mrs. Justice M.M. Bah-Matandala On the 23rd September, 2025 For the Plaintiff Mr. D. Jere-Messrs. Dickson Jere & Associates For the 1st Defendants: NIA For the 2nd Defendant: 'Ms F.K Mwimba and Ms S.K Mofya -Assistant Senior State Advocates Messrs. Attorney General's Chambers For the 3rd and 4th Defendants: Mr. G. Lungu of Muleza Mwiimbu & Co & Mr. M \ Mutemwa of Messrs Mutemwa Chambers \ \ \ JUDGMENT Legislation Referred: 1. The Lands Act, Chapter 184 of the Laws ofZ ambia 2. The Lands and Deeds Registry Act, Chapter 185 of the Laws ofZ ambia Cases Referred: 1. Anti-Corruption Commission v Bamnet Development Corporation Limited (2008) ZR 69 2. Christopher Lubasi Mundia v John Maoka and Others (HP 1676 of 2014) {2015] ZMH 120 (30 June 2015) 3. Mirriam Mumba v David Sililo (HP 873 of2 017) {2017] ZMHC 428 (20 September 2017) 4. Nora Mwaanga Kayoba and Another v Eunice Ngulube-SCZ Appeal No. 35 of 2001. 5. Fabian Musialela v Evans Chipman (201 OJ HPC/026) {2011] ZMHC 29 (20 July 2011) other Sources: 1. Howarth, Land Law, (Sweet and Maxwell 1994) Scanned with ~ CamScanner- 1.0 Introduction I I I 1.1 This is a Judgment in a matter commenced by the Plaintiff I against the Defendants after a dispute relating to a property known as Stand Number 12863, situated at Lusaka in .the Lusaka City and Province of the Republic of Zambia. 2.0 Background 2.1 The background of the matter is that the Plaintiff herein, by an Amended Writ of Summons and Statement of Claim dated 20th December, 2018, commenced this action against the Defendants seeking the following reliefs: i. A declaration that the Plaintiff is the legitimate owner of the piece of land under Stand Number 12863; ii. An Order that the Plaintiff being a holder of Certificate of Title Number 10967 of Stand Number 12863 is the legal and beneficial owner; iii. An Order for eviction of the 1st , 3rd and 4th Defendants as they are trespassers on Stand No. 12863; -J2___,,,. Scanned with i} CamScanner- I iv. An Order for the 2nd Defendant to cancel the Certificate of Title I Number 24866 under the name of the 1st Defendant on an account of having been issued by mistake; v. An Order for an injunction restraining the 1st, 3rd and 4th Defendants from trespassing, interfering or constructing on the said piece of land; vi. Damages vii. Costs 2.2 The 1st Defendant filed a Defence and Counterclaim on rd November, 2017, in which the lstDefendant sought to be declared the legal and legitimate owner of the disputed property. 2 .3 The 3rd and 4th Defendants were joined to the proceedings on 18th September, 2018. They filed a Defence in which they asserted that the 3rd Defendant is the rightful owner of the disputed property, having bought it from Chipalanganga Yonah Banda in 1989, and that the 3rd Defendant duly authorised the 4th Defendants to occupy the land. -J3- ...... Scanned with CamScanner· / 2.4 On 22nd September, 2019, the Plaintiff and the 1st Defendant I executed a Consent Order, which was the full and final I settlement of the claims between the Plaintiff and the 1st Defendant. It stipulated that the 1st Defendant had encroached on a portion of the Plaintiffs land, and the 1st Defendant agreed to correct the boundaries, as well as to demolish any structures on the encroached land. 3.0 The Witness Testimony at Trial 3.1 Two witnesses gave testimony at the trial. The Plaintiff called one witness. The 3rd and 4th Defendants also called one witness. The 2nd Defendant did not call any witness. 3.2 PWl was Rushikesh Anuphai Patel, who is a Shareholder and Director in the Plaintiff's company. It was PWl 's testimony that the Plaintiff company was looking for land on which to build a factory on and that was when they were made aware of the land in dispute. 3.3 He narrated how they conducted a physical visit, and that later a search on the land was conducted at the Lands and Deeds Registry, before proceeding to execute the relevant , documents regarding the purchasing of the property, and obtaining the Certificate of Title. -J4Scanned with ~ CamScanner· I 3.4 PW 1 testified that sometime in 2016 they engaged a contractor to construct on the said land, who after visiting the site informed the Plaintiff that there was a garage being operated on the property, and that there was also a Chinese company occupying the land. 3.5 PWl further testified that they then requested the 3rd and 4th Defendants to show the title deed that they had to the disputed property. However, that from 2016 the 3rd and 4th Defendants have not availed any title deeds although they still insisted that Ranwell Mawele (the 3rd Defendant) was the owner of the property. 3.6 It was PW l's testimony that not only is the Certificate of Title in the Plaintiffs name, but that the Lands and Deeds Registry history shows that they are the 6th owners of the land, thereby making them to wonder how the 3rd Defendant was transferred with the said land in dispute. 3.7 PWl lamented that this land dispute has set the company back as they have not been able to commence business, while they had borrowed money from a financial institution and bought the necessary equipment for running the business. -JSScanned with (I CamScanner· 3.8 In cross-examination the PW 1 admitted to seeing a garage and a wall fence on the land during inspection, but testified that he did not inquire about who built the wall fence or operated the garage. PW 1 also acknowledged that the survey diagrams that they produced before Court were not signed. However, PWl maintained that the Plaintiff is the legitimate owner of the property. 3. 9 DW2 was Ranwell Mawele, who is the 3rd Defendant in this matter. He testified that the disputed land was originally offered to Chipalanganga Banda in 1992, and that in 1998 DW2 bought the same property from Chipalanganga Banda at ZMK 6, 000, 000.00 (unrebased), after which he put up a wall fence in 1999. 3.10 DW2 testified that he is in possession of the original Surveyor's Report No. 324 /99. DW2 testified that he left for Australia in 2001 and returned in 2003. 3.11 It was his testimony that around 2006, he was surprised to see people putting beacons on the road reserve near the property. DW2 testified that he was surprised later when he was joined to these proceedings as the 3rd Defendant. 3.12 During cross-examination DW2 admitted that he had not seen a Title Deed bearing his seller's name, and that he was ·J6Scanned with i} CamScanner· instead shown copies of land rates being paid by the seller for the same property. 3.13 Additionally, DW2 admitted that the Certificate of Title for the property did not show an entry of the seller or himself as having owned the property at the lands and deed registry. 4.0 The Plaintiff's Arguments 4.1 It was the Plaintiffs submission that there is a plethora of authorities that state that he who has title, has ownership. Reference was made to Section 33 of the Lands and Deeds Registry Act in this regard. It was contended that the Plaintiff is the legal owner of the disputed property by virtue of having the Certificate of Title which is conclusive proof of ownership. Reference was made to the case of Anti Corruption Commission v Barnnet Development Corporation Limited1 . 4.2 Further, it was argued that the referenced provision of the Lands and Registry Act, gives clear situations in which land ownership can be reversed, those situations being where the title was issued by mistake or fraud. 4.3 It was submitted that in the case herein, the Defendants have not specifically pleaded fraud or mistake in the -J7- ·························· ' : Scanned with ! i} CamScanner· '·-----------··············-- issuance of the Certificate of Title. It was further contended that the Defendants in this case did not even have the seller to testify in what capacity he sold the property. 4.4 It was submitted that the 4th Defendants equally cannot claim to have possession of the land based on the fact that the 3rd Defendant allowed them to operate on the property, as they have no licence from the Plaintiff to continue operating from the property. In this vein, the case of Christopher Lubasi Mundia v John Maoka and Others2 was cited, where it was stated that: "According to Section 33 of the Lands Act, a Certificate of Title is conclusive evidence of ownership of the land. I therefore find and hold that the Plaintiff is the owner of Farm 4448, Chisamba. The Defendants are mere squatters. The inescapable conclusion therefore is that the Plaintiff is the legal owner of Plot 4448 Chisamba. There has been no title exhibited by the Defendants. I find that the Defendants were of the mistaken belief that they -18Scanned with ~ CamScanner- I had title to the property by virtue of belonging to Mupamapamo Cooperative Society." I 4.5 Furthermore, reference was made to the case of Mirriam Mumba v Sililo3 where it was held as follows: "Under section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive proof of ownership in the absence of fraud and mistake. After land has become the subject of a certificate of title, no title thereto, or to any right, privilege, or easement in, upon or over the same, shall be acquired by possession or user adversely to or in derogation of the title of the registered." 5.0 The 3rd and 4th DEFENDANT'S ARGUMENTS 5.1 There were no final written submissions from the 3rd and 4th Defendants. -J9Scanned with (I CamScanner· I 6.0 Analysis and Determination I 6.1 I have considered the trial evidence, the submissions made, I as well as the authorities cited. 6.2 I wish to start with giving an account of the scope of the issues after the Consent Order in the preliminary matter herein was entered. The record shows that there was a Consent Order dated 22nd September 2019 between the Plaintiff and the 1st Defendant comprising inter-parties controversy as to boundary encroachment by the 1st Defendant. It records the 1st Defendant's encroachment, its obligation to correct boundaries and to demolish structures on the encroached portion. The said compromise neither extinguished the Plaintiffs pleaded reliefs against the 3rd and 4th Defendants nor the administrative relief sought against the Defendant being the Commissioner of Land 2nd and Surveyor-General to regularise the register where a competing Certificate No. 24866 exists or overlaps. 6.3 The issues that remain are therefore as follows; i) Title as between the Plaintiff and the and 4th Defendants, 3rd ii) Trespass and possession, and -JlOScanned with ~ CamScanner- I iii) The propriety of register rectification I I as an incident of the Court's I judgment. 6.4 The law under Section 33 of the Lands and Deeds Registry Act Cap 185 provides; "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 m Part to VII might be held to be paramount or to have priority; the Registered Proprietor of the land comprised in such Certificate shall, except in case off raud, hold the same subject only to such encumbrances, liens, estates or interests created after the issue of such certificate as may be notified on the folium of the Registrar relating to such land but absolutely -JllScanned with ~ CamScanner- free from all other encumbrances, liens, estates or interests whatsoever. .. " 6.5 This provision embodies the principle of indefeasibility which states that a duly issued Certificate of Title is conclusive evidence of the matters stated therein and is not to be impeached except on established grounds such as fraud or error or mistake. 6.6 The Courts have consistently applied the position in the case of Anti-Corruption Commission vs Barnnet Development Corporation Ltd where the Supreme Court affirmed that the register speaks conclusively of absent vitiating factors. The cited case held as follows; "Under Section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title. .." 6.7 Further, the High Court has echoed this in the cited case of Christopher Lubasi Mundia vs. John Maoka & Others and Mirriam Mumba vs. Sililo where it was held that -J12Scanned with ~ CamScanner· r unregistered claims or bare possession cannot prevail I against registered title. 6.8 The law provides that procedurally, fraud or mistake must be specifically pleaded and distinctly particularised. It is not open to be raised inferentially in submissions. Where the Plaintiff proves registered title, the evidential burden shifts to the challenger to impeach it on recognised grounds. 6.9 In the case at hand, the Plaintiff produced a Certificate of Title No. 10967 to stand No. 12863, together with registry history indicating it is the sixth proprietor. PWl 's evidence on due search and transfer was not controverted by documentary title from the defence. 6.10 PWl in cross examination pointed that some survey diagrams were unsigned does not impeach the Certificate of Title itself. Under the principle of indefeasibility, ownership by registration, not by survey sketches, defects in ancillary diagrams, without more, do not set aside a registered estate. 6.11 In addition, and in support of the aforesaid, the 3rd Defendant's altitude of failing to investigate title at the time of purchase is not condoned by the Court as indicated in the case of Nora Mwaanga Kayoba and Another v Eunice Ngulube4, where the Supreme Court had the following to -J13Scanned with I} CamScanner- ,- say about this kind of cavalier attitude when buying real property: I "In purchasing real properties, parties are expected to approach such transactions with much more serious inquiries to establish whether or not the property has encumbrances. Buying real property is not as casual as buying household goods or other personal property." Howarth, Land Law, "A purchaser is under obligation to undertake full investigation of title before completing his purchase. He can only plead absence of notice ifhe made all usual and proper enquiries. If he does not do so, or is careless or negligent, he is deemed to have "constructive notice" of all matters he would have discovered. A person has constructive notice ofallfacts of which -J14- .-------------------········- ! Scanned with ! i} CamScanner- · --------------------------- 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." 6.12 Moreover, the 3rd and 4th Defendants did not plead fraud or mistake and filed no final submissions. DW 1 who is the 3rd Defendant, candidly conceded that neither he nor his vendor ever held a Certificate of title, relying only on i) a 1999 surveyor's report; ii) land rates and receipts; and iii) a wallfence constructed in 1999. 6.13 None of the aforesaid constitute a registrable title. And as observed in the case of Mundia vs. Maoka5 occupation and , local administrative pay-slips do not transmute into legal estate. And in the case of Fabian Masialela vs. Evans Chipman6 is of similar effect, that is, a purchaser who does -J15Scanned with CamScanner· not perfect title by registration acquires no indefeasible estate enforceable against a registered proprietor. This is understanding is supported by the provisions under I Sections 35 and 34 of the Lands and Deeds Act; I Section 35 of the Lands and Deeds Registry Act, which states that: ''After land has become the subject of a Certificate of Title, no title thereto, or to any right, privilege, or easement in, upon or over the same, shall be acquired by possession or user adversely to or in derogation of the title of the Registered Proprietor." Section 34 of the Lands and Deeds Act "(l) 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: -J16Scanned with ~ CamScanner· (2) In any case other than as aforesaid, the production of the Register or of a copy of an extract therefrom, certified under the hand and seal of the Registrar, shall be held in every court of law or equity to be an absolute bar and estoppel to any such action against the Registered Proprietor of land the subject of such action, and in respect of which a Certificate of Title has been issued, any rule of law or equity to the contrary notwithstanding." 6.14 Therefore, to the extent mentioned above, the 3rd Defendant suggested long possession, the cited case of Mirriam Mumba vs. Sililo re-stated that after land becomes the subject of a certificate, no adverse or user in derogation can be set up to defeat the registered proprietor. 6.15 Consequently, I find that the Defendants have not displaced the Plaintiffs indefeasible title under Section 33 of the Lands and Deeds Registry Act cited herein. -J17Scanned with CamScanner· 6.16 The Plaintiffs pleadings seek cancellation of Certificate No. 24866 held by the 1st Defendant on "on account of mistake". The Consent Order herein amounts to an admission of encroachment and an agreement to restore correct boundaries. That is functionally a recognition that any overlap was erroneous in cadastral delimitation or registration. 6.17 In these circumstances, it is both proper and necessary to direct the Commissioner of Lands and Registrar to rectify the Register to remove any overlap with Stand 12863 and to the extent a duplicate or overlapping grant exists, to cancel or amend it accordingly. This fails comfortably within the Court's supervisory and corrective jurisdiction over registrable interests where error is demonstrated. 6.18 On the issue of trespass to land, which is any unlawful entry upon another's land in the possession of the Plaintiff I find that, once the Plaintiffs title is established, the 3rd and 4th Defendants' continued presence without license constitutes trespass. 6.19 The 3rd Defendant's assertion that he authorised the 4th Defendants to occupy the land cannot prevail against the true owner as was stated in the case of Mundia vs Maoka; -J18Scanned with 'I CamScanner· _Jauue:>5we::, 4l!M pauueos parties without title are mere squatters and their purported licences are ineffectual vis-a-vis the registered proprietor. 6.20 Consequently, eviction follows of course, where trespass is found. A perpetual injunction is warranted to prevent re entry or further interference with the Plaintiff's quiet possession and development. 6.21 Further, the record shows that the Plaintiff led evidence that it had borrowed funds and acquired equipment to commence a factory but was delayed by this dispute. The appropriate measure is mesne profits, that is, the market value of the land or affe cte<;l portion for the period of wrongful occupation. Alternatively damages for loss of use where rental comparable are impracticable. 6.22 In that regard, consistent with practice, I will direct the Deputy Registrar to assess: a) monthly market rental or value, industrial or commercial by reference to professional valuations or comparable lettings in the vicinity; b) the relevant period from the commencement ofp roven interference -J19- being 2016 on the Plaintiff's evidence to the date of vacant possession; and c) interest which is pre-judgment interest to be reconciled by reference to Bank of Zambia average deposit rates prevailing over the assessment period and post-judgment interest by reference to Bank of Zambia average lending rates until payment in full, the precise annualised rates if any to be stated by the Deputy Registrar in the certificate of assessment. 6.23 In order to avoid further controversy, the Surveyor-General should, within a fixed period, re-fix beacons and prepare an endorsed diagram reflecting Stand 12863's boundaries per Title No. 10967, providing copies to all parties and the Registrar for consequential register entries. 6.24 And the costs herein will follow the event. The Plaintiff has succeeded. No special reason appears to depart from the usual order. ·J20· Scanned with a, CamScanner- DECISION AND ORDERS 7. 1 Having considered the pleadings, evidence and the applicable law, I make the following findings and orders: i) The Plaintiff, Stiffs tick Industries Limited, is declared the legal and beneficial owner of Stand No. 12863 by virtue of Certificate of Title No. 10967. ii) The ;3rd Defendant being Ranwell Malele and the 4th Defendants cited as 'All Occupiers of Stand No. 12863 are trespassers. iii) The and Defendants, and all 3rd 4th persons claiming through them, shall vacate Stand No. 12863 within 30 days of service of this order, failing which the Sheriff of Zambia is authorised to evict them forthwith and deliver vacant possession to the Plaintiff iv) The 3rd and 4th Defendants are restrained from entering upon, remaining on, constructing on, or ·J21Scanned with CamScanner· othe,wise interfering with the Plaintiff's quiet possession and development of Stand 12863. v) The Commissioner of Lands and or Registrar of Lands and Deeds shall, within 60 days, rectify the register to remove any overlap or duplication affecting Stand No. 12863. This is to the extent Certificate of Ti.tie No. 24866 in the 1st Defendant's name overlaps Stand No. 12863, it shall be cancelled or amended accordingly. vi) The Surveyor-General shall, within 60 days, re-establish and fix beacons for stand No. 12863 in accordance with Ti.tie No. 10967, file an endorsed diagram with the Registrar and circulate copies to the parties. vii) The Deputy Registrar shall assess mesne profits or damages for loss of use from the date of the first proven inter/e rence on the evidence, 2016, ·J22Scanned with (ii} CamScanner· until delivery of vacant possession, using market rental comparable or valuation evidence; and shall award pre-judgment interest at Bank of Zambia average deposit rates applicable over the period and post judgment interest at Bank of Zambia average lending rates until payment in full. viii) Costs to the Plaintiff, to be taxed in default of agreement. 7.2 Parties are informed of their right to appeal. -J23Scanned with I} CamScanner·