Kumamwa Moliya (suing as Headwoman Mwachinondo) and Ors v Marvin Mbaimbi Mohamed and Ors (2023/HP/1801) (4 November 2024) – ZambiaLII

,; Ii.: _ ___ _ .. IN THE HIGH COURT FOR ZAMBIA 2023/HP/1801 AT THE PRINCIPAL REGIS HOLDEN AT LUSA.KA (Civil Jurisdiction) BETWEEN: KUMAMWA MOLIYA (suing as Hea~~tu1:~~ru 1 ST PLAINTIFF ALFRED CHEWE 2ND PLAINTIFF SINOYA PHIRI 3RD PLAINTIFF CLEMENT SAMPWE MATANDA 4 TH PLAINTIFF SILVIA NSWANA 5TH PLAINTIFF GREEN CHIKWETE 6TH PLAINTIFF AND MARVIN MBAIMBI MOHAMED 18 DEFENDANT T ALI ANDERSON HOHAMED 2ND DEFENDANT LINCOLN MBAIMBI 3RD DEFENDANT PRINCE MOHAMMED (sued in their capacities as Administrators of the estate of the late Mathew Mbaimbi) 4th DEFENDANT BEFORE HON. MRS. JUSTICE G.C. CHAWATAMA ON APRIL, 2024 - IN CHAMBERS lQTH For the Plaintiffs' Mr. F. Besa from Messrs. F Besa and Associates For the Defendants Ms. C. Z. Chifita and Miss C. Kavamba both of Messrs. D. Kalima and Company 12VLl"''7 CASES REFERRED TO: 1. Shenghai International Mining Limited v Component Centre Limited SCZ Appeal No 171/2008 2. lndeni Petroleum Refinering Co Ltd v Kafco oil Limited and Another Selected judgment No. 29 of 2017 3. Bank ofZ ambia v Jonas Tembo and Others SCZ judgment No. 24 of 2022 4. Hussein Saieddinne v commissioner of Lands and Others Appeal 142 of 2023 5. BP Zambia PLC v Jnterland and Motors Ltd (2001) Z.R 37 6. Edgar Hamuwele (joint liquidator of Lima Bank Limited (in liquidation) and another v Ngenda Sipalo and Brenda Sipalo SCZ Judgment No. 4 of 2010 7. Mpongwe Farms Limited v Dar farms and Transport Limited (2016) ZR 1 Rl .. LEGISLATION AND OTHER WORKS REFERRED TO: 1. The High Court Act Chapter 27 of the Laws of Zambia. 2. The Rules of the Supreme Court 1999 edition 3. Halsbury Laws of England, Volume 16 4. Atkins Court Forms volume 29 5. Blacks law dictionary, 8th edition 6. Strouds Judicial Di.ctionary of Words and Phrases Volume 3, seventh edition. {London, Thomson; Sweet and Maxwell 1.0 INTRODUCTION 1.1 This 1s a Ruling on the Defendants application for determination of questions of law and for judgment. The application was made by Summons pursuant to Order 14A of the Rules of the Supreme Court (Whitebook) 1999 edition. Order 14A provides that: Order 14 "The Court may upon the application of a party or its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that: (a) Such question is suitable for determination without a full trial of the action and such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein." 1.2 In this application, the Defendant seeks the determination of the following questions of law, namely: 1. Whether the issues relating to ownership ofL ot No. 12759, Chibombo (the subject property) are res judicata having been heard on their merits and determined by this court under cause No. 2015/HP/2164; and R2 ,.;,._ 2. Whether this action by the Plaintiffs constitutes abuse of court process. 1.3 In addition to the above questions, it was prayed that if the above questions are answered in the affirmative then judgment be entered for the Defendants by dismissing the claims by the Plaintiffs and the entire cause as endorsed in the writ of summons and statement of claim filed on the 11th October, 2023 and that costs for this application and the whole matter be granted to the Defendants. 2.0 HISTORICAL BACKGROUND 2 .1 The brief facts leading to the Defendant's application, is that on the 11th October, 2023, the Plaintiffs' by way of a writ of summons accompanied by a statement of claim commenced this action against the Defendants seeking among others remedies and reliefs, an order of injunction restraining the Defendants whether by themselves, their servants or agents from evicting the Plaintiff, demolishing structures, trespassing on the land and interfering with the Plaintiffs quit possession and enjoyment of their land and or doing anything on the land or doing such things as are inimical to the Plaint iff. 2.2 This Court after considering the affidavit evidence and skeleton arguments, this Court held that it was necessary to grant the Plaintiff the application sought ex parte. This Court went on to set a date for the inter parte hearing. When the matter came up for inter parte hearing the Court was R3 informed that on the 9th January, 2024 counsel for the Defendant filed the current application in consideration. 3.0 THE DEFENDANT'S APPLICATION 3 .1 The Defendant's application is supported by an affidavit and skeleton arguments. 3.2 In the affidavit in support sworn by Prince Mohammed, the 4th Defendant and on behalf of the Defendants, deposed that the Defendants are the current legal owners of Lot no. 12759, Chibombo district of the Central Province. Copy of the certificate of title was exhibited and marked "PM-1". That the subject property has been subject of litigation before the Lands Tribunal, Supreme Court and latterly before the High Court and the Court of Appeal. 3.3 It was averred that the subject property was first owned by the late Mathew Mbaimbi. That sometime in 1998, the late Mathew Mbaimbi commenced an action in the Lands Tribunal against village headman Mupwaya and one Mr. Khama Singh claiming that headman Mupwaya had illegally allocated the subject property to Mr. Singh without his consent or consultation since the deceased had been occupying the property together with his family for many years and ought to have been consulted. That the Tribunal held that the subject property belonged to the late Mathew Mbaimbi and his family and consequently ordered cancellation of the title which had been issued to Mr. Singh. R4 J A copy of the judgment from the Lands Tribunal was exhibited and marked "PM-2". 3.4 Further that following an Appeal by Headman Mupwaya and Mr. Singh, the Supreme Court upheld the judgment of the Lands Tribunal, confirming that the law had not been complied with when headman Mupwaya allocated the property to Mr. Singh. A copy of the Supreme Court judgment was exhibited and marked "PM3. That following the Supreme Court judgment and cancellation of title that had been issued to Mr. Singh, the late Mathew Mbaimbi, was issued with a certificate of title relating to the subject property. 3.5 It was further averred that in 2015, lady Mohammed, who was the administrator then of the estate of the late Mathew Mbaimbi commenced an action in the High court under cause 2015/HP.2164 against Agripa Phiri Mupwaya (headman in Mupwaya village Chief Mungule), Daphine Admas, Sadiki Mohammed, Kennedy Lishimpi, Mr. Sakala, Mr. Mulumbwa Alubwa, Mr. Mukupa, Mr. Slengeti, Mr. Chimwanza, Mr. Gaggy and Mr. Diago claiming among other things, that although the above matter was commenced by lady Mohamed, in his capacity then as administrator of the estate of the late Mathew Mbaimbi, he was subsequently substituted by the Defendants upon his demise. 3.6 That the matter under cause 2015/HP /2164 went to trial and was determined on merits by Hon. Justice Wanjelani and she RS delivered judgment on 20th April, 2022. A copy of the Judgment was exhibited and marked "PM4". That the Defendants under 2015/HP/2164 being dissatisfied with the judgment appealed to the Court of Appeal. That on the 2nd August, 2023, the Court of Appeal dismissed the Appeal with costs to the Respondents. A copy of the Court of Appeal judgment was exhibited and marked "PMS". 3 .7 That following the dismissal of the appeal, several of the Defendants under 2015/HP/2164 engaged the Defendants with a view to pay the Defendants so that they could be legally allocated land on the subject property and most of them have since paid. That to the Defendant's shock, after the 2nd Plaintiff had a meeting with the Defendants at the Plaintiffs advocates, the 2nd Plaintiff made a part payment and that the Defendants were served with the originating summons herein. 3 .8 The deponent averred that he was advised by his advocates and verily believe the same to be true that a reading of the statement of claim reveals that the Plaintiffs attempting to relitigate this matter, which has already been closed. That the Plaintiffs have belabored to particulars the allegations of fraud and procedural impropriety in their writ of summons based on the same issue of how the extent of the subject property is purported to have increased from 4 hectares to 73 hectares, an issue that was already adjudicated upon by the Court under 2015/HP/2164. R6 J 3.9 That the Deponent was reliably advised by his advocates on record and verily believe the same to be true that the reliefs being sought by the Plaintiffs in this action if granted will have the effect of assailing or varying the judgment made by the Court in the judgment of 20th April, 2022. Further that the reliefs being sought by the Plaintiff's in this action have potential to bring embarrassment on the administration of justice as conflicting judgments may be rendered by the Court. That these proceedings are an abuse of the process of the Court as there is a danger of the Court arriving at a conflicting finding or decision to the High Court judgment dated 20th April, 2022. 4 .0 AFFIDAVIT IN OPPOSITION 4 .1 In opposing the application, the 2nd Plaintiff filed an affidavit in opposition on the 09th April, 2024 that whilst the plethora of the court documents and prior litigation referred to in the Defendant's affidavit relate to various disputes that have arisen over stand No L/ 12759 /M Chibombo all these disputes are clearly distinguishable to the matter before this Court. 4.2 That whilst the judgment referred to 1n the Defendant's affidavit relates to ownership of the land, the primary contention in this matter is not the ownership of L/ 12759 /M Chibombo but rather, the main issue is how the subject property was fraudulently increased illegally displacing R7 • villagers who had lived under the customary tenure in the villages for generations including taking over a graveyard. 4. 3 It was averred that the Plaint iffs are not cont esting the Defendants ownership of the 4,000 hectares of the subject property which belongs to the Defendants, the Plaintiffs are challenging the illegal expansion of the subject property to 73.3346 hectares which has affected them in that the Defendant seeks to displace the Plaintiffs. 4.4 That the issue of this illegal encroachment on the entire villages by the Defendant has therefore not been a subject of any litigation as alleged. That the illegal expansion of the Defendants farm has only been recently confirmed by the Regional survey office of the Surveyor General via a boundary verification survey report dated 17th August 2023 which has been exhibited to the affidavit in support of summons for an order of injunction. 4.5 Further that it is not true that another matter touching on the same property in the Court of Appeal has been dismissed. That the said matter is still very active. That this matter must be allowed to proceed to trial so that the Defendants can be challenged on how their farm magically increased to 73.3346 which has resulted in them attempting to displace families living on the 69 .3346 hectares of land. 4 .6 In Reply it was averred that contrary to the assertions made in the affidavit in opposition, it is evident that the dispute R8 before this Court is not distinct from the disputes previously adjudicated upon by the Court under cause 2015/HP/2164. The claim regarding the alleged fraudulent increase of the subject property from 4 hectares to 73 hectares was indeed a subject of litigation under cause 2015 /HP /2164. That the matter under cause 2015/HP/2164 went to trial and was determined on merits by the Hon Justice Wanjelani and that judgment was delivered on 20th April 2022. A copy of the judgment was exhibited and marked "PMl". 4.7 That in the judgment under cause 2015/HP/2164 it was found by this Court as evidence on page J33, that the Defendants in that matter failed to discharge the onus of presenting crucial evidence to support the allegation of fraudulent land conversion. Further that it was determined that there was no specific evidence indicating whether the proper procedure for land conversion was followed or how the land extent increased from 4 hectares to 73.3650 hectares as reflected in the Plaintiff's certificate of title. The responsibility lay with the Defendants to present such crucial evidence which they lamentably failed which the court declined to engage in speculation regarding whether the procedure was followed. 4.8 Furthermore, that the purported boundary survey exercise has come too late in the day. That this evidence should have been presented when this Court adjudicated upon this issue under cause 2015/HP/2164. That the Plaintiffs are clearly attempting to relitigate a matter that has already been R9 adjudicated upon. Further that the Plaintiffs have failed to show this Court any evidence that the matter which went on appeal in the Court of Appeal is still active. 4.9 That it is desirable that this matter be dismissed on a point of law on account of abuse of court process and multiplicity and res judicata. 5.0 SKELETON ARGUMENTS 5.1 In the skeleton argument filed, Learned Counsel began by submitting that this Court is vested with the requisite jurisdiction to dispose of a matter with finality without the need for a full trial upon consideration of points or questions of law or issues raised by a party to the action or on the courts own motion. That a reading of Order 14 A of the Whitebook reveals that Court has the authority to determine questions of law at any stage of the proceedings where it appears to the Court that the questions are suitable for determination without the need for a full trial of the action and such determination will be final as to the entire cause or matter. 5.2 Further that for a question of law to be suitable for determination without the need for a full trial, the determination must hinge on the interpretation of law. The case of Shenghai International Mining Limited v Component Centre Limited1 was called in support where the Supreme Court held that the application should finally determine all the issues and hinge on findings of fact. That further the Supreme RlO law dictionary, 8th edition defines "res judicata" at page 4088 as follows: 1. An issue that has been definitely settled by judicial decision. 2. An affirmative defence barring the same parties from litigation a second lawsuit on the same claim or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit. The three essential elements are: (1) An earlier decision on the issue, (2) A final judgment on the merits, and (3) The involvement of the same parties or parties in privity with the original parties. 5.4 The case of Bank of Zambia v Jonas Tembo and Others3 the Supreme , Court held that: "In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the Plaintiff has had an opportunity of recovering and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of resjudicata must show either an actual merger or that the same point had been actually decided between the same parties. Where the former judgment has been for the defendant, the conditions necessary to conclude the matter are not less stringent. It is not enough that the matter alleged to be concluded might have been put in issue or that he relief sought might have been claimed. It is necessary to show that it actually was so put in issue or claimed." 5.5 This Court was referred to the judgment 1n cause 2015/HP/2164 which has never been assailed by any Court of competent jurisdiction. This Court was then referred to the cases of Hussein Saieddinne v commissioner of Lands and Others4. R12 5. 6 As regards the qu estion whether this action by the Plaintiff constitu tes abu se of Court process. This Court was referred to the case of BP Zambia PLC v Interland and Motors Ltd5 wherein it was held that: "A party to a dispute with another over a particular subject should not be allowed to display his grievance piecemeal in scattered litigation and keep on hauling the same opponent over the same matter before various courts. The administration ofj ustice would be brought into disrepute if a party managed to get conflicting decisions or decisions which undermine each other from two or more different judges over the same subject matter" 5.7 It was then submitted that Order 18/ 19/18 of the Rules of the Supreme Court provides for what amounts to ''abuse of the process of the Cou rt". That it provides that: "Para (1) (d) confers upon the Court in express tenns powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse oft he process of the Court. This tenn connotes that the process of the Court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery and will, in a proper case summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. " 5.8 It was further submitted that th e whitebook cites "Re litigation" as an example of abuse of the Court process. That under Order 18 Rule 19 of the whitebook, the Court has the power to strike out or dismiss a matter at any stage of the proceedings for abu sing of the court process. That the High Court having pronounced itself in this matter should not R13 .. . entertain the Plaintiffs' application to re-litigate an issue that has already been dealt with . The case of Edgar Hamuwele (joint liquidator of Lima Bank Limited (in liquidation) and another v Ngenda Sipalo and Brenda Sipalo6 held that: "The issue as to whether there was any contract between the parties for the sale of the house was put to rest in our decision in Appeal no. 61 of 2001. We found then that there was no contract between the parties, not because of the lack of capacity on the part of the offers as Mr. Zulu has argued; but purely on a legal point; that the offer was not accepted. We agree with Mr. Musonda that the Court below should have taken judicial notice of our earlier decision on this aspect of the case as it is bound by the decisions of this Court under the principle of stare decisis. We have in many decisions frowned upon litigation which resurrects issue that have already been litigated upon. In the case of Singogo v Masaninga, we did allude to the danger of re litigating settled issues, which is that the court may give conflicting judgments in respect of the same subject matter". 5. 9 The thrust of the Plaintiff's argument in opposition was that the main issue for determination in this matter is not the ownership of the subject property but rather how the Defendant's land increased from 4 hectares to 73.3346 which led to the defendants displacing numerous villages including a graveyard. That it is clear from the statement of claim particularly paragraph 9 that the Plaintiff have contended that a boundary verification conducted by the regional survey office has confirmed that the extent of the land was fraudulently increased from 4 hectares to 73 .3346 hectares. That the Defendant has not exhibited any prior litigation where this was purely the dispute. R14 . -;; 5.10 It was further argued that the Court documents exhibited shows that the parties to those matters are not the same as in casu. That for a matter to be considered having been determined, the same should involve the same parties or substantially the same parties. If other parties in the past who were affected by the fraudulent conduct of the Defendants failed to prove fraud that does not prevent the Plaint iffs from launching this matter and providing proof to this Court that the Defendant have fraudulently literally taken over villages including graveyards. It was counsel's contention that this matter is not res judicata as claimed by the Defendants. The Defendants have not provided any evidence to show that this matter has been subject of litigation between the same parties or substantially the same parties. 5.11 I was then referred to the case of Mpongwe Farms Limited v Dar farms and Transport Limited7 that the Supreme Court explained that: "Our understanding of this authoritative definition is that res judicata puts to rest and entombs in eternal quiescence every justifiable issue and question actually adjudicated upon or which should have been raised in the initial suit. And the law is fairly settled and defined beyond peradventure in a plethora of cases decided by this court that for a party relying on the defence of res judicata to succeed, he must satisfy the following five conditions, namely; 1. That the parties or their privies are the same in both the previous and the present proceedings, RlS .. . 2. That the claim or issue in dispute in both actions are the same, 3. That the res (the subject matter of litigation) in the two cases are the same 4. That the decision relied upon to support the plea of estoppel is valid, subsisting and final, 5. That the Court that gave the previous decision relied upon to sustain the plea, is a court of competent jurisdiction". 5.12 It was then submitted that first, the parties are not the same. The Defendants have not provided any evidence to show that all the parties to this cause or their privies were parties to the previous matters. The Defendant has also not shown that the claim in this matter was the same as in previous matters. That whilst the Defendants or their late relatives may have been part to causes where ownership of L/ 12759 /M Chibombo was being contested, the main issue here is how the said land was fraudulently increased in size. 5.13 As regards the contention whether this action constitutes abuse of court process, it was argued that this action does not amount to abuse of court process as the Plaintiffs have clearly disclosed their cau ses of action, which has never been determined before as between the parties before court or at all. That the Plaintiffs seek the cancellation of the Defendants certificate of title as it was fraudulently obtained and other consequential orders as the Defendants fraudulently increased the size of their land. It was counsel's submission that the application by the Defendant is clearly vexatious and the conduct by the Defendants is in fact what amounts to R16 . ..,, abuse of the court process which is frowned upon by the Court. 5.14 In winding up their arguments, the Plaintiff argued that the Defendants have further contradicted themselves in their arguments. In one breath they state that this matter has been subject of prior litigation yet in another breath, they have failed to demonstrate that the parties were the same in those matters or indeed the cause of action was the same or substantially the same. That no exhibits have been presented before this Court showing that the requirements of the law have been satisfied by the Defendants. That the Defendants are therefore in essence blowing hot and cold at the same time hence the maxim expounded by Brooms Legal Maxims, 10th edition, applies to the Plaintiff which states: "Allegans contrans non estaudiendus" which when translated to English reads "he is not to be heard he who alleges things contrary to each othe-r'. 6.0 CONSIDERATION AND DECISION BY THIS COURT 6 .1 I have carefully considered the application before me. I am grateful for the written submissions by learned Counsel for the respective parties, as well as the authorities, cited. The question for determination on the point of law as posed by the Defendants in the summons, simply is, whether or not, this matter ought to be dismissed on the ground that first, the issues relating to ownership of Lot no. 12759, Chibombo R17 are res judicata having been heard on their merits and determined by this Court under cause no. 2015/HP/2164. Secondly, that whether or not this action by the Plaintiffs constitutes abuse of court process. The Plaintiff have strongly argued that their primary contention in this matter is not the ownership of L/ 12759 /M Chibombo but rather, how the subject property was fraudulently increased. To this effect, the Plaintiffs in this matter are not contesting the Defendants ownership of the 4,000 hectares of the subject property which belongs to the Defendants. However, the Plaintiffs are challenging the illegal expansion of the subject property to 73.3346 hectares. 6.2 Therefore, the central question for determination as can be deciphered from the above findings of facts, is whether or not the questions or issues presented in the current action have been previously pronounced on under cause no 2015/ HP /2164. 6.3 To ably determine this question, I have examined the judgment of my learned sister Mrs. Justice Wanjelani in Cause No. 2015/HP/2164. This judgment was delivered on 20th April, 2022 and the action in Cause No. 2015/HP/2164 was commenced on 11th November, 2015. The significance of these events will become apparent hereunder. 6.4 I have observed in the judgment in cause no 2015/HP/2164 that the action was between the Plaintiffs namely Marvin Mbaimbi Mohammed, Ali Anderson Mohammed, Hassan R18 . ... Mukuni, Prince Mohammed (Suing in their capacity as administrator of the estate of the late Mathew Mabaimbi), Nazir Mussa Dodia, Jianping Liao and the Defendants were Aggripa Phiri Mupwaya (headman in Mupwaya village Chief Mungule), Daphine Adams, Sadiki Mohammmed. Kennedy Lishimpi, Mr. Sakala, Mr. Mulumbwa Alubwa, Mr. Mukupa, Mr. Selengenti, Mr. Chimwanza, Mr. Gaggy and Mr. Diago. 6.5 It is instructive to note that under cause no 2015/HP/2164, the Plain tiffs claimed the fallowing reliefs: (1 ) A declaratory order that the late Mathew Mbaimbi was the legal owner of Lot No. 12759/ M situate in Chibombo district in the Central Province of the Republic of Zambia and that the said property now devolves to his estate which is now administered by lady Mohammed; (2) An Order that the Plaintiff do immediately recover exclusive possession of Farm lot No. 12759/M situate in Chibombo district in the Central province of the Republic of Zambia serve only for those portions which have been occupied with their consent and approval; (3) Mesne profit; (4) An Interim injunction restraining and forbidding the Defendants and its agents from trespassing and or attending at the Plaintiff's premise in unreasonable manner or from carrying out any further developments pending determination of the matter herein; (5) An award of damages, punitive and exemplary, for malicious falsehoods and accusations and for trespass occasioned by the attendance of the defendants on the Plaintiff's property without proper authorisation; (6) Any other relief deemed appropriate by the Court; and (g) Costs of and incidental to the proceedings. R19 . . 6.6 My learned sister in cause no. 2015/ HP/ 2164 in the course of the judgment observed and found that: "It is not in dispute that the property now in issue is held on title by lady Mohammed who was the administrator of the estate of the late Mathew Mbaimbi. Additionally, the record as per Ministry of Lands print out register shows that the certificate of title issued to Mr. Singh was cancelled following the Supreme court judgment as per entry No. 6 and that a certificate of title with the same hectarage was issued to the late Mathews Mbaimbi as per entry No. 4 of the same register. In this vein, section 33 of the Lands and Deeds Registry Act provides that a certificate of title is conclusive proof ownership and this entails that the deceased was the owner of that property after the Judgment". 6.7 Further, my learned sister in cause no 2015/ HP/2164 found that: "The defendants have alleged in paragraph 6 of the defence filed on 18th September, 2018 that the Plaintiffusedfraudulent means in the conversion of the subject land from customary tenure to statutory tenure and in obtaining the alleged or purported title deeds to the property. The aspect of fraud and how it should be pleaded was dealt with by the Supreme Court. ... The defendants defence merely referred to the Plaintiff using fraudulent means in the conversion of the land from customary tenure and the issuance of the certificate of title but no particulars were given. In addition, with respect to adducing evidence, reference was made to the letter dated 15 th October, 2018 from the Ministry of Lands. .. the Acting Chief Registrar states in that letter, that they were unable to explain why the size of the land changed from the initial hectares attached to Mr. Singh's 14 years lease title to the 73.365 on Mr. Mathew Mbaimbi's title. The defendant's counsel were further advised to engage the office of the Surveyor General R20 • Ii . . for clarification. DWl told the Court that he did not personally engage the surveyor general's office for clarification. In an earlier letter dated 2CJth July, 2017 from Chibombo Town Council to Messrs. George Kunda and Company in responding to a query on whether the Council had approved the conversion of the land from customary to leasehold tenure, the Council Secretary informed the recipient that they needed time to access the records as the transaction had been done between 2000 and 2004. They were informed that the information would be availed as soon as the search was concluded. The defendants did not indicate whether the information was availed from the Chibombo Council and whether they followed up with the office of the Surveyor General over the letter from the Ministry of Lands. Quite clearly, there is no specific evidence to show whether or not the proper procedure in the conversion of the land was followed or how the extent of the land changed from 4 hectares to 73.3650 hectares that is reflected in the Plaintiff's title the onus was on the Defendants to adduce the crucial evidence in support of the allegation off raudulent conversion of the land. The court cannot speculate and assume that procedure was notfollowed. .. based on the foregoing, I find that the late Mathew Mbaimbi was the legal owner of Lot no. 12759/M situate in Chibombo and the said property now devolves on his estate." 6.8 On the 11th October, 2023 the Plaintiffs in the present matter namely, Kumamwa Moliya the headwoman of Mwachinondo village in Chibombo district, Alfred Chewe, Sinoya Phiri, Clement Sampwe Matanda, Silvia Nsawana and Green Chikwete launched a fresh action under the current Cause No. 2023/HP/ 1801, against Marven Mbaimbi Mohammed, Ali Anderson Mohammed, Lincolyn Mbaimbi and Prince Mohammed all sued in their capacities as administrators of the estate of the late Mathews Mbaimbi. The cause of action as endorsed on the writ of summons and statement of claim was formulated as follows: R21 .. 1. An Order by this Court for cancellation of certificate of title in respect of Lot no. 12759/ M Chibombo issued to the Defendants and all subsequent subdivisions issued by the Defendants to any third parties for having been fraudulently acquired as well as for having been acquired through the use of procedural impropriety; 2. An Order that all the land fraudulently acquired by the Defendants revert to customary tenure as the same was not legitimately acquired in accordance with the law relating to land acquisition in Zambia; 3. An Order declaring that the Plaintiffs are bona fide owners and occupants oft he portions of land which they occupy having acquired the same under customary tenure in accordance with the law and practice as it relates to acquisition of land under customary law.; 4. An Order of permanent (sic) injunction restraining the defendants whether by themselves their servants or agents from evicting the Plaintiffs, demolishing structures thereon, trespassing on their land, interfering with the Plaintiffs quit possession and enjoyment of their land or doing any such things as are inimical to the Plaintiffs; 5. Any other relief that the Court may deem fit. 6. Interest on damages 7. costs. R22 't 6.9 In determining the question whether or not the present action, is res judicata, when considered against the backdrop of cause no 2015 /HP/ 2164, it is necessary to consider the phrase res judicata. The learned authors of Strouds Judicial Dictionary of Words and Phrases at page. 2379; defines the word res judicata to mean ''the phrase res judicata is used to include two separate state of things. One is where a judgment has been pronounced between parties and findings off act are involved as a basis of that judgment. All the parties affected by the judgment are then precluded from disputing those facts, as facts in any subsequent litigation between them. The other aspect of the term arises when a party seeks to set up facts, which if they had been set up in the first suit, would or might have affected the decision. This is not strictly raising any issue which has already been adjudicated, but it is convenient to use the phrase resjudicata as relating to that position. 6.10 Furthermore, the Supreme Court also had occasion 1n the case of Bank of Zambia v Tembo and Others3, to consider the phrase res judicata. In the aforementioned case, 1n the course of hearing the appeal, the Court's attention was drawn to a passage from paragraph 1254 of Halsbury Laws of England, Volume 16, which highlights the essentials of res judicata. The paragraph reads as follows: "In order that a defence of res judicata may succeed it is necessary to show that not only the cause of the action was the same, but also that the plaintiff has had an opportunity of recovering and but his own fault might have recovered in the first action, that which seeks to recover in the second. A plea ofresjudicata must show either an actual merger, or that the same point had been actually declared between the same parties where the former judgment has been for the defendant, the conditions necessary to conduct the plaintiff are not less stringent. It is not enough that the matter alleged to be concluded might have been put in issue or R23 . ... that the relief sought might have been claimed. It is necessary to show it was actually so put in issue or claimed." 6.11 It is clear from the guidance of the Supreme Court above that in order for a plea of res judicata to succeed, it must be demonstrated that a judgment should have earlier on been pronounced between the parties. As a result, the parties are precluded from re-litigating matters on which finding of facts have earlier on been made by the Court and formed the basis of the judgment. Further, by a plea of res judicata, a party may be prevented from pursuing a cause of action if it is demonstrated that party had an opportunity earlier on of recovering in the first action that which he seeks to recover in the second action. 6 .12 As stated above, the cause of action in the present action is for an Order by this Court for cancellation of certificate of title in respect of Lot no. 12759/M Chibombo issued to the Defendants and all subsequent subdivisions issued by the Defendants to any third parties for having been fraudulently acquired as well as for having been acquired through the use of procedural impropriety; An Order that all the land fraudulently acquired by the Defendants revert to customary tenure as the same was not legitimately acquired in accordance with the law relating to land acquisition 1n Zambia; An Order declaring that the Plaint iffs are bona fide owners and occupants of the portions of land which they occupy having acquired the same under customary tenure in accordance with the law and practice as it relates to acquisition of land under customary law; An Order of R24 • 1 permanent (sic) injunction restraining the defendants whether by themselves their servants or agents from evicting the Plaintiffs, demolishing structures thereon, trespassing on their land, interfering with the Plaintiffs quit possession and enjoyment of their land or doing any such things as are inimical to the Plaintiffs. 6 .13 It is my finding of facts that the determinations or pronouncements that were made 1n Cause No. 2015/ HP/ 2164, were that the defendants have alleged in paragraph 6 of the defence filed on 18th September, 2018 that the Plaintiff used fraudulent means in the conversion of the subject land from customary tenure to statutory tenure and in obtaining the alleged or purported title deeds to the property. The defendants defence merely referred to the Plaintiff using fraudulent means in the conversion of the land from customary tenure and the issuance of the certificate of title but no particulars were given. In addition, with respect to adducing evidence, reference was made to the letter dated 15th October, 2018 from the Ministry of Lands, the Acting Chief Registrar states in that letter, that they were unable to explain why the size of the land changed from the initial hectares attached to Mr. Singh' s 14 years lease title to the 73.365 on Mr. Mathew Mbaimbi's title. The defendant's counsel was further advised to engage the office of the Surveyor General for clarification. DWI told the Court that he did not personally engage the surveyor general's office for clarification. In an earlier letter dated 20th July, 2017 from Chibombo Town Council to Messrs. George Kunda and R25 .. • r Company in responding to a query on whether the Council had approved the conversion of the land from customary to leasehold tenure, the Council Secretary informed the recipient that they needed time to access the records as the transaction had been done between 2000 and 2004. They were infa rmed that the information would be availed as soon as the search was concluded. The defendants did not indicate whether the information was availed from the Chibombo Council and whether they followed up with the office of the Surveyor General over the letter from the Ministry of Lands. Quite clearly, there is no specific evidence to show whether or not the proper procedure in the conversion of the land was followed or how the extent of the land changed from 4 hectares to 73.3650 hectares that is reflected in the Plaintiffs title the onus was on the Defendants adduce the crucial evidence to support of the allegation of fraudulent conversion of the land. The court cannot speculate and assume that procedure was not fallowed based on the foregoing. I find that the late Mathew Mbaimbi was the legal owner of Lot no. 12759 /M situate in Chibombo and the said property now devolves on his estate. 6.14 Clearly, although the Plaintiff in the present action is different from Cause No. 2015/HP/2164 the Defendants herein are the same. Under cause no. 2015/HP/2164, the 1st Defendant who testified as DWI was the village headman of Mupawaya village in Chibombo district. He had misgivings on hectarage of the Defendants lands. The Court as stated above pronounced itself on the question of fraud and held R26 t r that DWl had sufficiently failed to adduce evidence of fraud. Whereas, in the present action, the 1st Plaintiff is the headwomen of Mwachinondo village in Chibombo district. Although, the parties are different in my considered view, the causes of action in the present case and in cause 2015 /HP/ 2164 are the same. I therefore, do not accept the Plaintiffs contention that in the present action they are challenging only fraudulent increase of the 73 hectares of land. This current action by the Plaintiffs can best be described as a round about attempt to re-litigate the matter by relying on the report of the surveyor's office. 6.15 It is my firm view that the Plaintiffs in the present matter is seeking to set up facts by relying on the survey report, which if they had been set up in the first suit, would or might have affected the decision. I therefore hold that the present action is res judicata. For these reasons and consequently, the ex parte injunction granted to the Plaintiffs is accordingly vacated or discharged. 6 .16 This matter is accordingly dismissed with costs to be taxed in default of agreement. 6 .17 Leave to appeal to the Court of Appeal is hereby granted. DELIVERED AT LUSAKA THIS ON 04TH DAY OF NOVEMBER, 2024. RT JUDGE R27