Mwiza Mbewe and Anor v Attorney General (2019/HP/1624) (17 December 2024) – ZambiaLII

.. IN THE HIGH COURT FOR ZAMBIA 2019 /HP/ 1624 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction} Bl. CO BETWEEN: O'•HI O _ _ MWIZAMBEWE R _ 1 . 1 . ' . - . K .. 'I . P ; A .; L ;. 1 ST PLAINTIFF ' PLAINTIFF MBEWEMBEWE 1 7 DEC 2024 2ND JULIA MPHEZA 3RD PLAINTIFF REGISTRY • 2 . AND -5U067, L\J ATTORNEY GENERAL DEFENDANT Before the Honourable Mrs. Justice R. Chibbabbuka on the 17th day of December, 2024 For the Plaint iffs: Ms. EM. Kaputa, Messrs Musiyani Mwamba Legal Practitioners & Ms. Mwaka Musiyani, (learner Legal) For the Defendant: Ms. C. Agalasiye Principle State Advocate & Mr. C Moyo, Mr. M. Nalukui and Ms. A. Chanda (Learner Legals) JUDGMENT Cases referred to: 1. Justin Chansa vs Lusaka City Council, SCZ Judgment No. 29 of 2007 2. Shadrick Wamusula Simumba vs JumaBanda and Lusaka City Council, Appeal 8 of2017 3. Arnot Kabwe and Charity Mumba Kabwe v James Daka, The Attorney General, and Albert Mbazima, (2006) ZR 12 4. PanoramaAlarm System & Security Services Limited V Dar Fanns Limited-2011/ HK/ 07 5. Aaron Chungu Vs Peter Chanda and Others SCZ/ 8/02/ 2023 Legislation referred to: The Lands Act, Chapter 184 oft he La,ws ofZ ambia The High Court Act, Chapter 27 of the Laws ofZ ambia Jl 1.0 INTRODUCTION The plaintiffs took out an action by way of writ of summons and statement of claim filed on 10th October, 2019, claiming the following reliefs: An order of the Court that the property situated at and known as 1. Lot No. 5179 /M, Chilanga District in the Republic of Zambia is legally owned by the plaintiffs; An order of the court to compel the defendant, to cancel the 11. certificate of entry. An order of injunction restraining the defendant, whether by 111. themselves, their servants, their agents or whomsoever they may employ from venturing upon the said land, and from conducting any form of domestic, commercial and industrial activity thereon until determination of this cause, or until further order of the court; 1v. Damages for inconvenience; and v. Costs of this suit and any other relief the court may deem just. 2.0 THE STATEMENT OF CLAIM The plaintiffs' case according to their statement of claim is that in 1992, their father, Aerial Guy Mbewe, applied for land in Makeni in the Lusaka Province of the Republic of Zambia. His application was approved and he was given 4. 074 6 hectares land, delineated as Lot No. 51 79 / M on certificate of title number L32663. On 7th April, 1995, Aerial Guy Mbewe died testate and bequeathed the said property L/5179.M unto his children, the plaintiffs herein. On or about 11th June 1995, a Will of Probate was registered at the Ministry of Lands and to that effect, on the 19th day of December, 1997, a Deed of Vesting Assent was registered. On or about the month of September, 2019, the plaintiffs received a letter from the office of the Head Estates and Valuation, Ministry of Lands notifying them J2 that the property had been repossessed and re-planned into LN-73152/ 1-24. Upon receipt of the aforementioned letter, the plaintiffs conducted a search at Ministry of Lands on the said property which revealed that the defendant had registered a notice to re-enter on 10th August 1994 without the knowledge of the plaintiffs. Correspondence to the defendant from the plaintiffs' advocates seeking clarification on this matter have not yielded any results. As a result of the defendant's actions, the plaintiffs have suffered damage, loss and inconvenience arising from the action of the defendant. 3.0 THE DEFENCE The defendant filed a defence on 5th August, 2022 wherein it was admitted that the plaintiffs were the owners of the property known as L / 51 79 / M before a certificate of re-entry was affected on the property. That a notice of intention to re-enter Lot No. 5179/M, was issued in August, 1994 on account of failure to develop the property and failure to clear the outstanding ground rent, and sent to the lessee, Mbewe Aeriel Guy, by registered mail. In 1999 a certificate of re entry was entered against the property. However, prior to the issuance of a certificate of re-entry and after the notice of re-entry, Mbewe Aeriel Guy died and probate of the will was issued in favour of the plaintiffs, who subsequently obtained a Vesting Assent. That the grant of probate or a Vesting Assent did not in any way vitiate the notice of intention to re-enter which was already subsisting on the property as the new joint owners inherited the covenants and conditions of the lease as ·well as the encumbrances that the property was subject to. The plaintiffs are not entitled to any of the reliefs sought. Save as herein expressly ad1nitted, the defendant denied each and every allegation of fact contained in the plaintiffs' statement of claim as if the same were set forth herein and specifically traversed. J3 4.0 THE PLAINTIFFS' WITNESS STATEMENT The plaintiffs filed a witness statement on 23rd June, 2021 wherein the 2nd plaintiff asserts that the plaintiffs are the registered owners of Lot Number 5179/M, situate in Lusaka Province of the Republic of Zambia. Sometime in 1992, their father, Aeriel Guy Mbewe applied for land in Makeni in the Lusaka Province. His application was approved and he was granted 4.0746 hectares land, delineated as Lot No. 5179 /Mon certificate title no. L3263. On 7th April 1995 the plaintiffs' father died testate and bequeathed the property in question to the plaintiffs herein. On the 11th June 1995, a Will of Probate was registered at Ministry of Lands and to that effect, on 19th December 1997, a Deed of Vesting Assent was registered and the property was transferred to the plaintiffs. On or about September 2019, the plaintiffs received a letter from the office of the Head Estates and Valuation, Ministry of Lands notifying them of the property having been repossessed and re-planned into LN_73152/ 1-24. A search at Ministry of Lands on the said property revealed that a notice to re enter was registered on the 10th August 1994 and subsequently a certificate of entry was registered on 3rd February 1999 without the plaintiffs' knowledge. It is surprising that the Ministry of Lands registered their Deed of Vesting Assent and continued receiving ground rent payments when the notice to re-enter had registered. On or about 2nd October, 2019, their Advocates, Messrs Munansangu and Company, wrote to the defendant seeking guidance as to why the land was repossessed when there was development and annual ground rent duly paid each year. The plaintiffs' Advocates further sought clarity as to why the due process of repossession was ·not followed. The plaint iffs' caretaker started getting harassed and ultimately physically assaulted by cadres led by Lucky Mwanza who alleged to be the owner of the property in question. The plaintiffs reported the matter to Makeni Police wherein they were informed that the said Lucky Mwanza was a known land fraudster J4 who had been detained before on the same allegations. At the time the Plaintiffs commenced these proceedings, the defendant had not responded to any of the letters from the plaintiffs' advocates. Efforts to amicably settle this matter have proved futile as the defendant has failed, refused and or neglected to settle the same. 5.0 THE TRIAL 5.1 The plaintiffs' case The plaintiffs called one witness. 5.1.1 The Testimony of PWl PW 1 was Mbewe Mbewe, the 2nd plaintiff herein. He relied on his witness statement, whose contents he restated. He testified further that the ground rents have been fully paid for and that the land in question is developed and had been in use. Upon being informed that the land had been repossessed, they sought audience with the Commissioner of Lands through their lawyers but failed. The plaintiffs went to the Ministry of Lands where they were shown a letter dated 12th August, 2019, written by the Head of Estates and Valuation at the Ministry of Lands which purported that the property had been repossessed and re-issued. They were not given a copy of the letter but they managed to take a photo of it. In 1997, they put up 3 servants' quarters and a borehole with a hand pump on the land. There is also a storage shed which has a threshing floor for husking maize. They used the land for agricultural purposes as that is what the land was designated for. They further ensured that the ground rent was fully paid as evidenced by the statement from the Ministry of Lands and receipts. The statement shows payments from 1999 to 2019. They have made payments beyond 2019 as they continued to receive demand notices from the Ministry of Lands. All the developments on the land were done in the year 1997 and that JS the people who put up beacons on the land from the Ministry of Lands found these structures. When Lucky Mwanza claimed to have title to the property, they tried to engage the Ministry of Lands but received no response. When the matter was reported at Makeni Police Station, they were informed that Lucky Mwanza was known for land fraud in their area. The zoning of the area where this property is agricultural land, and it is only their land which was affected by the re-zoning process. They have failed to effectively use the land due to the interreference from Lucky Mwanza who assaulted their caretaker. This was also reported to the Makeni police. PW 1 prayed that the reliefs sought be granted. 5.1.2 Cross examination of PWl In cross examination, PW 1 replied as follows: following his father's demise, he did not conduct a search at the Ministry of lands but engaged a lawyer to facilitate the transfer of the property. He has not provided evidence that due diligence was conducted to confirm the state of the property. He was only made aware that the notice of re-entry was done in 1994 through a printout obtained in 2019. His father was still alive in 1994. He is aware that the State is obligated to send notices of intention to re-enter to the last known address. He was not aware that the notice to re-enter was sent on 16th August, 1994 because at that time, his father was still alive. The plaintiffs obtained title to the land in 1997. Following the commencement of this action, he was made aware that the plaintiffs inherited all the unexpired residue and encumbrances on the property. He did not appeal against the notice of intention to re-enter from 1997 to 1999 when the certificate of re-entry was entered, the plaintiffs paid ground rents but the receipts are not before the court. The statement before the court starts from 1999 though the statement is not signed and has no stamp from Ministry of Lands. The plaintiffs have produced a stamped receipt on page 27 of the bundles J6 of documents to show that payments were made. He has not produced any evidence that ground rents were paid before the notice to re-enter was issued. He did not obtain approval from the local authority to build on the property. The receipt from WARMA bears the year 2018 because that is when the law relating to boreholes was issued. They sought audience with the Commissioner of Lands. He was not given a police report and hence has not produced one. According to the certificate of title, the land is zoned for residential and horticultural purposes. 5.1.3 Re-examination of PWl In re-examination, PW 1 clarified as follows: when they inquired from the Ministry of Lands why people were putting beacons on the land, they were told that the land had been rezoned from agricultural to residential. They sought audience with the Commissioner of Lands but to no avail. The statement that was produced before is from the Ministry of Lands even though it has not been signed, in the same way the search printout from the same Ministry has not been signed. The statement shows that ground rents were paid from 1999 to 2019. The land in question is developed. That was the case for the plaintiffs. 5.2 The defendant's case The defence dispensed with calling any witnesses. 6.0 THE SUBMISSIONS 6.1 The Plaintiffs' Submissions The plaintiffs filed submissions on 20th April, 2023 wherein counsel submitted that the only issue this court ought to deliberate on is whether the plaintiffs are the legal owners of Lot No. 5179/M, Chilanga. Counsel argued that pursuant to J7 Sections 3 and 4 of the Lands Act, Chapter 184 of the Laws ofZ ambia, all land is vested in the President of the Republic of Zambia with authority to alienate. This power is however exercised through the Commissioner of Lands. Counsel referred this court to the case of Justin Chansa vs Lusaka City Council1 , wherein the Supreme Court held that: "The authority to consider applications for land from members of the public is vested in the President of Zambia who has delegated this authority to the Commissioner of Lands. .. " Counsel submitted further that the President of Zambia equally has power to repossess (re-enter) the land once conditions have been flouted. For this submission, counsel referred to Section 13 subsection (1) of the Lands Act. That the evidence on record is that Lot No. 5179 /M, Chilanga was allotted to one Guy Ariel Mbewe in August 1992, and upon his demise, passed on to the plaintiffs who obtained title to it in their own names. That according to Section 33 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, a certificate of title is conclusive evidence of ownership of land from the date of its issuance. Counsel argued that the issuance of the certificate of title in the names of the plaintiffs is sufficient proof of ownership by the plaintiffs. That the Land Register shows that the Commissioner had entered a Notice to Re-enter on 10th August, 1994. Counsel argued that the issue of service of the notice to re-enter is key to effective and valid notice. Counsel relied on the case of Shadrick Wamusula Simumba vs Juma Banda and Lusaka City Council2 wherein the , Supreme Court held that there is need to serve a notice on a lessee and that there must be proof of such service before the lessor can re-enter or repossess the property failing which the notice to re-enter or repossess the property will be invalid. That in casu, there is no proof that the said notice to re-enter was brought to the attention of the holder of the land at the time, the late Guy Ariel Mbewe. J8 It was counsel's contention that Section 13 subsection 3 of the Lands Act affords an erring lessee to dialogue with the Commissioner of Lands to be given an opportunity to make good of the breach. Counsel referred to the case of Arnot Kabwe and Charity Mumba Kabwe v James Daka, The Attorney General, and Albert Mbazima3 to buttress the submission. That mere service is not enough, there must be proof of service. That in the present case, the closest to service of the notice is the registered mail to the late Guy Ariel Mbewe which is exhibited on page 6 of the defendant's bundle of documents, which mail was unclaimed. That it goes without saying therefore that there had been no communication of the notice to re-enter to the late Guy Ariel Mbewe, and as a result, the late Guy Mbewe did not make any representation or appeal to the issuance of the notice because he was not aware of its existence. This failure to notify the deceased about the intention to re enter partly explains why the Ministry of Lands accepted the registration of not only Probate against the said piece of land but also the Deed of Vesting Assent and subsequent issuance of Title on 11th June, 1996 and 19th December, 1997 respectively. If the Commissioner of Lands was serious about re-entry and having realized that the earlier attempt to serve the late Guy Ariel was not successful, they should have not have accepted to process title to the plaintiffs. It was also argued that the failed attempted service on the late Guy Ariel Mbewe cannot be said to have been transferable to the new title holders. The moment the Commissioner of Lands accepted to give title to the plaintiffs and accepted and continued to accept ground rent from them over the property in issue to date, signifies that they are lessees in good standing and legal owners of the property in question. Counsel contended that from the testimony of PW 1, the plaintiffs immediately upon being issued with the Certificate of Title started developing the area by J9 putting up 3 servants' quarters, a borehole and undertaking some agricultural activities. They also started paying ground rent which was demanded of them every year. No fresh Notice to re-enter was issued after title holders changed and there is no proof that any report was given to show the status of Lot No. 5179 /M, Chilanga to warrant the Commissioner of Lands issuing a Certificate of Re-entry, five (5) years later after the issuance of the Notice to re-enter). There is no proof that the plaintiffs breached any condition of the lease. That the re-entry was certainly not validly done and therefore not valid at law. The plaintiffs did what was expected of them i.e. developing the land and consistently paying ground rent. The ground rent bills, as testified by PW 1 were and still come out in the name of the plaintiffs post 1999 when the certificate of re-entry was purportedly issued. Further, even the statement from the Ministry of Lands showing the status of ground rent for the property showed the 'owner name' as Mbewe Mwiza, Mbewe Mbewe and Mbewe Julia Mpheza as late as 2019. In short, the so called Certificate of Re-entry is questionable as the system at Ministry of Lands and the Lands Register still show the plaintiffs as owners. If the re-entry was effected, the plaintiffs names would not be reflecting as the owners of the property. Counsel argued in the alternative that, the defendant is estopped from claiming that it had re-entered the property and the plaintiffs are not the rightful owners. If indeed the Notice of re-entry entered in 1994 was effective, and there was no appeal or any representation, from the late Guy Ariel Mbewe, it was not going to take the defendant five years to issue the certificate of entry on the property. The mere fact that the Commissioner of Lands issued a certificate of title to the plaintiffs when there was a Notice to re-enter, precludes him from denying the plaintiffs the right to enjoy their piece of land. The conduct of the Commissioner of Lands of issuing the Certificate of Title to the plaintiffs when there was an intention to re-enter, the issuing of ground rent demand bills and accepting the payments thereof, is proof that the Commissioner of Lands recognises the JlO plaintiffs as the rightful owners. To buttress this argument reference was made to the case of Panorama Alarm System & Security Services Limited V Dar Farms Limited4, where Lady Justice Mulongoti, as she then was quoted Blackburn J in the case of Smith Vs Hughes, on the meaning of estoppel when he said; "If whatever a man's real intention maybe, he so conducts himself that a reasonable man would believe that he was asserting to the terms proposed by the other party, and that other party, upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms". It was counsel's considered view that it is the Commissioner of Lands that unconditionally issued Title to the plaintiffs and the plaintiffs have faithfully followed the covenants therein and as such the Commissioner of Lands cannot purport to have repossessed the land based on a Notice to re-enter that was aimed for the previous holder. Counsel prayed that this Court declares that the plaintiffs are the rightful and legal owners of Lot No. 5179 /M, Chilanga and that the certificate of re-entry entered on the property be cancelled with costs. The plaintiffs also prayed for damages for the inconvenience they have suffered as a result. 6.2 The Defendant's Submissions The defendant did not file any submissions. 7.0 The decision of the court I am indebted to counsel for the plaintiffs submissions. The plaintiff's claims are for: An order of the court that the property situated at and known as Lot 1. No. 5179 /M, Chilanga District in the Republic of Zambia is legally owned by the plaintiffs. Jll u. An order of the court to compel the defendant to cancel the certificate of entry. 111. An order of injunction restraining the defendant, whether by themselves, their servants, their agents or whomsoever they may employ from venturing upon the said land, and from conducting any form of domestic, commercial and industrial activity thereon until determination of this cause, or until further order of the court; 1v. Damages for inconvenience; and v. Costs of this suit and any other relief the court may deem just. A perusal of the above claims reveals that the plaintiff's main claim emanates from the re-entry that was done by the defendant on the 10th August, 1994. The Supreme Court in the case of Aaron Chungu Vs Peter Chanda and Others5 in relation to the jurisdiction of the High Court to deal with land matters in relation to re-entries held as follows: "The correct position therefore is that, while the High Court has unlirnited jurisdiction in land matters; its jurisdiction is limited as in this case by section 13 (3) of the Lands Act." Section 13 (3) of the Lands Act Chapter 184 of the Laws of Zambia provides; "A lessee aggrieved with the decision of the President to cause a certificate of re-entry to be entered in the register may within thirty days appeal to the Lands Tribunal for an order that the register be rectified. " The import of the aforementioned Aaron Chungu case and Section 13 (3) of the Lands Act, is that the High Court does not have jurisdiction to determine land matters that relate to re-entries done by the Commissioner of Lands as that jurisdiction lies with the Lands Tribunal. As such this court cannot proceed to determine the plaintiff's claims for want of jurisdiction and accordingly this J12 I entire cause of action is hereby dismissed. The plaintiff is at liberty to commence this action before the Lands Tribunal as is guided in the Lands Act, Chapter 184 of the Laws ofZ ambia. Due to the nature of the claim and it being no fault of the plaintiff for the same having been commenced in the High Court, each party shall bear their own costs for this action. Leave to appeal is hereby granted. ~~~ . . UBLlfi_ . 1? DEC 2024 •~ R. .A lJKA J soo . A R.H Chibbabbuka HIGH COURT JUDGE J13