IN THE COURT OF APPEAL OF ZAMBIA Appeal No.

194/2021
HOLDEN AT LUSAKA
(Civil Jurisdiction)
BETWEEN:

AND

ENOCK KAWOKU CHITIYA 1 sT RESPONDENT

ZCCM INVESTMENTS HOLDINGS LIMITED 2N° RESPONDENT

Coram: Chishimba, Sichinga, and Ngulube, JJA

on 22nd September, 2023 and 27th October, 2023

For the Appellant : Mr. M. G. Mumbwa ofMessrs Kitwe Chambers

: Mr. V.K. Luswili ofMessrs lven Levi Legal

For the 1st Respondent
Practitioners
For the 2 Respondent : Mr. B. Mbilima, In-house counsel
nd

JUDGMENT
Sichinga, JA delivered the Judgment of the Court.

Cases referred to:

1. Rating Valuation Consortium and D. W. Zyambo & Associates (Suing as a

Firm) v The Lusaka City Council and Zambia National Tender Board (2004)
Z.R. 109
2. Sablehand Zambia Limited v Zambia Revenue Authority SCZ Appeal No. 56
of2003
3. Wilson Masauso Zulu Vs Avondale Housing Project Limited (1982) Z.R. 172
•

4. Nkhata And Four Others Vs The Attorney-General Of Zambia (1966) Z.R.

124
5. Musesha Chitundu v Joseph Kunkuta CAZ Appeal 8 of 2019
6. Bomiface Kafula v Billings Choonga Mudenda SCZ Appeal No. 202 of 2003
7. Mirriam Mbolela v Adam Bota SCZ Appeal No. 146 of 2014
8. Elias Tembo v Maureen Chinua, Duncan Chinua, The Attorney General,
Lusaka City Council And Peggy Kandesha Appeal No. 5 of 2018

Legislation referred to:

1. The Lands Act, Chapter 184 of the Laws of Zambia

2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016, Act No. 7
of 2016, Laws of Zambia
3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia
4. The Intestate Succession Act, Chapter 59 of the Laws of Zambia

Other works referred to:

1. Black's Dictionary of Law, Bryan A. Gamer- 9th Edition 2009

1.0 Introduction
1. 1 This is an appeal against the judgment of the High Court (S.
M. Wanjelani, J.) dated 28th May, 2021 pursuant to which the
learned Judge upheld the 1 st respondent's claim that he is the
legal owner of property known as Subdivision "V" of Farm 938,
Mufulira, also referred to as 71 Gashi Avenue, Mufulira and
refused to order cancellation the Certificate of Title.

1.2 The 2nd respondent company has been the subject of a

considerable amount of litigation as a result of its employee

2
•

home ownership scheme of 1997. This is yet another case

where the ownership of land is in question between two former
employees of the 2 nd respondent.

2.0 Background
2.1 According to the 1 st respondent's statement of claim dated 7th
February, 2014, the 1 st respondent is the registered owner of
Subdivision "V" of Farm 938, Mufulira (hereafter "the subject
property"), having been offered the same by the 2 nd respondent
under an employee home ownership scheme, which resulted in
acquisition of Certificate of Title No. L40002 in his favour on
10th December, 1999.

2.2 On 11th August 2012, the 1st respondent found that the
subject property was being developed by the appellant and
that his storehouse was broken into and all the items he had
kept therein were missing. In an attempt to assert his
ownership of the land, the 1 st respondent showed his
Certificate of Title to the appellant, who refused to
acknowledge it, thereby prompting the 1 st respondent to
commence an action in the High Court claiming mainly the
following reliefs:
i) A declaration that he is the legal owner of the property
known as Subdivision "V" of Farm No. 938 Mufulira, after
purchasing the same from the 2nd Defendant;

3
 ii) A declaration that there is no other person interested in the
land in question as there has not been any other interest
registered under this property apart from that of the
plaintiff;
iii) A declaration that the defendant is a trespasser and that
he should hand over possession of the said Subdivision 'V'
of Farm No. 938;
iv) Damages for trespass;
v) Costs; and
vi) Interest.

2.3 In his defence, the appellant asserted that the true owner of
the subject property is the late Mubiana Mwendabai, to whom
the 2nd respondent offered the property and the appellant
bought it from the estate of the late Mubiana Mwendabai
(hereafter called "the deceased"). That at the time he
purchased the property there were neither structures nor any
signs of another person having a claim over it. He averred that
he was an innocent purchaser for value without notice of the
defect, as he had made all the necessary inquiries regarding
the subject property.

2.4 The appellant asserted further that if the Certificate of Title

issued in favour of the 1 st respondent related to Plot 71 Gashi,
Mufulira, then it was obtained by fraud. The appellant
counterclaimed the following reliefs before the lower court:

4
..
i) An order that he is entitled to the said property;
ii) Further or in the alternative, a declaration that he is an
innocent purchaser for value without notice of any defects;
and
iii) Costs.

3.0 Decision of the High Court

3.1 The trial Judge summed up the undisputed facts as follows:
i) The deceased and 1st respondent were both employees of
the 2nd respondent;
ii) On 15th February, Plot No. 1 Gashi Avenue, Mufulira, was
offered to the deceased;
iii) The deceased did not make any .financial payment to the
2nd respondent in respect of Plot No. 1 Gashi Avenue,
Mufulira;
iv) The appellant did purchase Plot No. 1 Gashi Avenue,
Mufulira from the estate of the deceased and has sznce
built a dwelling house thereon;
v) There is an assignment with respect to Subdivision "V" of
Farm No. 938 Mufulira from the 2nd respondent to the
appellant; and
vi) The 1st respondent zs holder of Certificate of Title for
Subdivision "V" of Farm No. 938 Mufulira.

3.2 The trial Judge found that Plot No. 71 Gashi Avenue and
Subdivision "V" of Farm 938 referred to the same property. In

5
 determining the issue of whether tlie property was rightly sold
to the 1 st respondent, having first been offered to the deceased
by the 2nd respondent, the learned Judge noted that the letter
of offer addressed to the deceased did not make reference to
payment of consideration, nor was there an indication that the
deceased accepted the offer.

3.3 The Judge relied on the Supreme Court case of Rating

Valuation Consortium and D. W. Zyambo & Associates
(Suing as a Firm) v The Lusaka City Council and Zambia
National Tender Board1 to the effect that the court can
discern a clear intention of parties to create a legally binding
agreement between themselves, which can be discerned by
looking at the correspondence and the conduct of the parties
as a whole. She found, therefore, that there was no binding
agreement between the deceased and the 2nd respondent and
the 2nd respondent was at liberty to offer and subsequently sell
it to the 1 st respondent. Further, that the assignment confirms
that K300,000 was paid by the 1 st respondent to the 2nd
respondent.

3.4 As regards the claim for trespass, the learned Judge was of the
view that although the 1 st respondent had the right to the
subject land, he was not in possession thereof at the time the
appellant occupied it, as the latter believed that he had the
right to the land based on his contract with the estate of the

6
 deceased and other documents availed to him. On this basis,
she dismissed the claim for trespass as the true positions of
the parties were only determined by virtue of the judgment.

3.5 On the appellant's counterclaim that the 1 st respondent

obtained the Certificate of Title by fraudulent means, the lower
court noted that contrary to the guidance of the Supreme
Court in the case of Sablehand Zambia Limited v Zambia
Revenue Authority2 to the effect that fraud must be distinctly
alleged and clearly proven, the appellant's pleadings showed
that the allegation of fraud was casually pleaded with no
particulars. On this basis, she dismissed the appellant's
allegation of fraud.

3.6 The lower court dismissed the appellant's claim that he was an
innocent purchaser for value without notice of the 1 st
appellant's existing interest, as he did not properly exercise
due diligence in his inquiries. That for instance, had he
conducted a search at the Ministry of Lands, the same would
have revealed that the property was. held on title by the 1 st
respondent. As such, the Judge found that the estate had no
title to pass to the appellant as the deceased was not the
owner of the property. Further, the administrator of the estate
of the deceased did not obtain an order of court to sell and it
has been held that a sale of a deceased person's property
without such an order is null and void. She thus found that
the defence of bona fide purchaser failed.
7
3. 7 In toto, the learned Judge found no basis to order cancellation
of the 1 st respondent's Certificate of Title. She therefore
declared the 1 st respondent as the legal owner of the property
known as Subdivision "V" of Farm 938 Mufulira, also referred
to as 71 Gashi Avenue, Mufulira and that there was no other
registered interest in the property. She dismissed the
counterclaim.

4.0 The Appeal

4.1 Dissatisfied with the Judgment of the High Court, the
appellant launched this appeal, raising five grounds as follows:
1. The learned trial Court erred in law and fact when it
held that there was nothing on record indicating
that the late Mwendabai accepted the offer that was
made to him when the evidence on record showed
that the late Mwendabai was allocated Plot No. 71
Gashi Avenue, Mufulira, the 2nd Respondent;

2. The learned trial Court erred in law and fact when it

held that there was no binding contract between the
late Mr. Mwendabai and the 2nd defendant in respect
of Plot No. 71 Gashi Avenue, Mufulira;

3. The learned trial Court erred in law and fact when it

held that the plaintiff paid the sum of K300,000 for

8
 the purchase of Plot No. 71 Gashi Avenue, Mufulira

when no proof of payment existed on record;

4. The learned trial Court erred in law and fact when it

held that there was no basis to order cancellation of

the Plaintiff's title; and

5. The learned trial Court erred in law and fact when it

held that the 1 st defendant was not a bona fide

purchaser after finding as a fact that there was no

evi.dence that the l st defendant acted in bad faith.

5.0 Appellant's heads of argument

5.1 In support of this appeal, Mr. Mumbwa, counsel for the
appellant, relied on the appellant's heads of argument dated
26th August, 2021. The first and second grounds of appeal
were argued together. It is stated in support thereof that there
is correspondence from the 2nd respondent confirming that the
deceased was offered a plot and a survey number would later
be communicated to him in due course.

5.2 Reference was also made to a letter dated 24th June, 1991,
authored by the General Manager of the 2 nd respondent
company and referenced 'allocation of residential plots',
accompanied with a list of employees to be allocated houses
under the home ownership scheme. The deceased's name was

9
 second on that list of allocations in respect of Plot No. 71
Gashi Avenue Mufulira with the status of Manager.

5.3 That the 1 st respondent was the Manager-Human Resources of

the 2nd respondent at the time the name of the late F.
Mwendabai was removed from the list of allocations and
replaced with the name of the 1 st respondent as the senior
staff who was allocated Plot No. 71 Gashi Avenue, Mufulira on
the list of allocations.

5.4 It was submitted further that the said plot and other senior
staff allocations were free of charge as confirmed at the
hearing by DW2 and DW3 who were employees of the 2nd
respondent at the material time and benefited from the home
empowerment scheme. The allocation of the said plot to the
late F. Mwendabai by the 2nd respondent was neither
withdrawn nor rescinded at any point for there to be no
binding agreement. That in any event, no evidence exists on
record for the withdrawal or retraction or rescission of the said
allocation to the deceased by the 2nd respondent.

5.5 Based on the preceding arguments, counsel argued that the

learned trial court erred in law and fact when it held that there
was nothing on record indicating that the deceased accepted
the offer that was made to him when the evidence on record
showed that the late Mwendabai was invited by the 2nd
respondent to apply for a high-cost plot. That the deceased

10
 applied for the said plot and was successful in his application.
He was allocated the said plot by the 2nd respondent, as the
binding agreement between the deceased and the 2nd
respondent is evident in the application of the deceased to
acquire high-cost residential plot in Mufulira. Letters of 15th
February, 1991, 24th June, 1991 refer.

5.6 Citing the case of Wilson Masauso Zulu v Avondale Housing

Project Limited3 and Nkhata and Four Others v The
Attorney-General of Zam.bia4 counsel urged us to allow the
first and second grounds of appeal and dismiss the trial
Judge's finding that there was no binding agreement for the
sale of the subject property between the deceased and the 2 nd
respondent.

5.7 In support of the third ground of appeal, the appellant argued

that there is no evidence on record to show that the 1st
respondent successfully applied to the 2 nd respondent for
allocation of Plot No. 71 Gashi Avenue Mufulira, nor that the
1 st respondent had received an offer from the 2 nd respondent to
purchase the said lot. Further, that there is no proof of
payment on the record that the 1st respondent paid to the 2 nd
respondent the sum of K300,000 for the purchase of the
subject property, either by way of cash payment or payroll
deductions. That the 1st respondent failed to produce proof of
this payment even after being subpoenaed by the court below
to do so.

11
5.8 We were referred to the evidence of DW 3 to the effect that the

plots were given free of charge to managers, superintendents

and senior staff who were requested to apply for the plots in

the vacant high-cost area by the 2nd respondent. This was

confirmed by the undisputed evidence of DW3 that his

assignment also showed K300,000.00 as paid by the DW3 but

DW3 confirmed at trial that he did not pay the K300,000.00

because the plots were given free of charge by the 2nd

respondent to senior staff under the home ownership scheme.

5.9 In support of the forth ground of appeal, the appellant

submitted that the assignment between the 1st and 2nd

respondent was registered after a period of more than 12

months from the date of its execution and as such, the same is

null and void as per Section 6 of the Lands Act1 . Further,

that the Certificate of Title of the 18t respondent shows that it

is dated 10th December 1999 and as such, the Certificate of

Title was issued without following the laid down procedure of

the Lands Act in that there was no assignment to transfer an
interest in Subdivision "V" of Farm 938 Mufulira from the 2nd
respondent to the 1st respondent. It was submitted in this

regard that transgressions of the law such as circumvention of

the procedure prescribed in the law would render null and

void the allocation of land.

12
5.10 Counsel submitted further that the only way the 1st
respondent found himself on the senior staff allocation 1n
respect of Plot No. 71 Gashi Avenue, Mufulira was because
someone removed the name of the late F. Mwendabai, as it is
undisputed that the 1st respondent had custody and access to
the file in respect of Plot No. 71 Gashi Avenue, Mufulira when
the Survey Diagram was approved in 1995.

5.11 In support of the fifth ground of appeal, the appellant

submitted that he testified that he confirmed that Plot No. 71
Gashi Avenue, Mufulira was owned by the late F. Mwendabai
before he bought the said property. The confirmation was done
with a Mr. Tembo who was validating the documents at ZCCM
Office situated in Mfunda on behalf of the 2nd respondent and
this was after June 2011. The said Mr. Tembo was the 2nd
respondent's witness who confirmed that he worked for ZCCM
in Mufulira between May 2010 and October 2011.

5.12 As regards due diligence conducted by the appellant before

purchasing the subject property, it was submitted that the
appellant visited Mr. G. Sikazwe (DW3) who was on the list of
the allocated plots in Gashi with the late Mr. Mwendabai. The
witness testified that Plot No. 71 Gashi Avenue Mufulira
belonged to the deceased. The appellant further testified that
he visited Mr. 0. Nkhama who was issued a plot at the same
time with the late F. Mwendabai and the said Mr. Nkhama
confirmed that Plot No. 71 Gashi Avenue Mufulira was owned
13
 by F. Mwendabai. That there is also evidence on record to the
effect that before purchasing the said plot, the appellant
visited Mr. Tembo (Deceased) of Mufulira Municipal Council
who confirmed that the said plot belonged to the Mwendabai
family. On this premise, counsel argued that the learned
trial court erred in law and fact when it held that the 1 st
respondent was not a bona fide purchaser for value after
finding as a fact that there was no evidence that the 1st
respondent acted in bad faith.

6.0 1 st Respondent's arguments

Mr. Luswili sought to rely on the 2nd respondent's proposed
heads of argument.

7.0 2 nd Respondent's arguments

7.1 On 14th September, 2023, the 2nd respondent filed an ex-parte
summons for leave to file heads of argument out of time
pursuant to Order 13 Rule 3 (3) of the Court of Appeal
Rules2. The application was made to a single Judge of the
Court who referred it to the full Court. The application was
supported by an affidavit sworn by counsel in which he
deposed that the 2 nd respondent's heads of argument were not
filed on time as counsel was unable to obtain instructions.

7.2 We considered the reason ascribed to the delay in seeking

leave for extension of time to file the 2nd respondent's heads of

14
 argument that counsel was unable to collect sufficient
instructions in relation to the filing of the heads of argument.
We found the reason insufficient and a lame excuse for failure
to comply with the Rules of the Court.

7.3 In view of the forestated, we declined to grant the application

for leave to file the heads of argument out of time. The net
effect was that the respondents were not heard.

8.0 Decision of the Court

8.1 We have carefully considered the evidence on record, the
impugned judgment, and the submissions by counsel for the
appellant. In this appeal, we are called upon to essentially
determine the propriety of the lower court's finding that the
appellant is the legal owner of the subject property and that he
was not an innocent purchaser for value without notice of the
1 st respondent's existing interest. In our determination, we will
consider whether the lower court properly applied the law in
the manner it employed it in arriving at the conclusion that
the property was rightly sold to the 1 st respondent, despite
having first been offered to the deceased by the 2 nd
respondent.

8.2 We will address the first three grounds of appeal together, as

we are of the view that they are essentially premised on
compliance with the 2 nd respondent company's internal

15
 procedures for allocation of houses or land as part of an
employee home empowerment scheme, for purposes of forming
a binding contract between the appellant and the 2 nd

respondent. The appellant has advanced lengthy submissions

relating to evidence that points to the deceased's compliance
with the company procedures for application for and allocation
of plots, and went to the extent of suggesting that the 1 st
respondent during the course of employment, may have
removed the appellant's name from the list of employees to be
allocated plots and substituted it with his own name. This
subtle allegation is not supported by evidence, nor was it
before the lower court for determination. We will therefore not
dwell on it.

8.3 The evidence indeed shows that the appellant did begin the
process of application for a plot, which he was subsequently
offered, though the lower court found no evidence of
acceptance of the said offer by the appellant. In a nutshell,
whereas the 1 st respondent concluded the internal procedures
with the 2 nd respondent to the point of eventually acquiring
title after execution of a deed of assignment, there appears to
have been a break in the chain in terms of the procedures for
allocation of land to the deceased by the 2 nd respondent, to the
extent that the deceased did not subsequently conclude the
process of acquiring ownership and the subject property did
not pass on to his estate at the time of his death. The

16
•

Administratrix of the deceased's estate, therefore, appears to

have been labouring under the mistaken assumption that her
late husband was the owner of the subject property at the time
she purportedly sold it to the appellant when in fact not, as
the 1 st respondent had acquired title, which in the absence of
evidence of fraudulent acquisition, conclusively establishes the
1 st respondent as the owner. Section 33 of the Lands and
Deeds Registry Act"3 refers.

8.4 In our view, evidence relating to internal correspondence

amongst officers of the 2 nd respondent company to the effect
that the deceased was earmarked to acquire the subject
property does not do much to aid the appellant's claim to
vitiate the 1 st respondent's title. We are inclined to agree with
the lower court that the evidence does not disclose a binding
contract to the extent that it can be said that the deceased
acquired an equitable interest in the subject property. We
decline to set aside the finding of the lower court in this
regard. The first three grounds of appeal are dismissed for
want of merit.

8.5 As regards the fourth ground of appeal, it must be borne in

mind that since the appellant did not specifically particularize
allegations of fraud, the 1 st respondent was not at trial for the
manner in which he acquired the Certificate of Title. Rather,
he asserted his ownership as a title holder and it was then for

17
,,

the court to determine whether the appellant's adverse claims

over the subject property could vitiate the 1 st respondent's
ownership vis-a-vis the manner in which the Certificate of Title
was obtained.

8.6 The lower court dismissed the appellant's allegations for fraud
after finding that contrary to trite law as stated in the case of
Sablehand Zambia Limited v Zambia Revenue Authority

supra, the appellant did not specifically particularize the

allegations but merely made casual references. This is a
finding that we affirm. We see no reason, as enunciated in the
case of Nkhata and Four others v The Attorney-General
supra, to interfere with it. We find no merit in the fourth
ground of appeal and dismiss it.

8.7 We will now consider the fifth ground of appeal. In its

consideration of the appellant's claim that he was an innocent
purchaser for value without notice of the 1 st respondent's
interest, the Judge referred to evidence to the effect that the
appellant purchased the property at the value of K40,000 and
that although there was no evidence that the appellant acted
in bad faith, he was too trusting of the people he dealt with
and should have conducted independent investigations. For
instance, had he conducted a search at the Ministry of Lands,
the same would have revealed that the property was held on
title by the 1 st respondent.

18
8.8 The Judge concluded that the estate had no title to pass to the
appellant as the estate was not the owner of the property.
Further, the administrator of the estate of the deceased
admitted that she had not obtained an order of court to sell
and it has been held that a sale of a deceased person's
property without such an order is null and void. She thus
found that the defence of bona fide purchaser failed.

8.9 It appears that among the considerations for the defence of

bona fide purchaser for value without notice, what mainly
influenced the lower court's dismissal of this argument is that
the appellant did not properly conduct due diligence, adding
that had he conducted a search at the Ministry of Lands, the
same would have revealed that the land was held in title by
the 1 st respondent.

8.10 In the case of Musesha Chitundu v Joseph Kunkuta5 , the

purchaser carried out a due diligence exercise in relation to
the property prior to executing a contract of sale by conducting
a search at the Lands and Deeds Registry and the National
Housing Authority. He then placed a caveat on the property
after satisfying himself that there was no encumbrance and
paid the purchase price. The Supreme Court upheld our
finding that he was a bona fide purchaser.

8.11 In the present case, the appellant was purchasing property

from the estate of the deceased through a personal
19
 representative. There is no evidence on record to show that the

personal representative was in possession of title in the name

of the deceased, nor that the appellant conducted a search at

the Ministry of Lands to confirm the proprietary status of the

property. The appellant instead made inquiries from former

employees of the second respondent who were familiar with

internal procedures of the company, who confirmed that the

property was offered to the deceased. The evidence indeed

reveals that the property was in fact once offered to the

deceased but that it was subsequently offered to the 1 st

respondent, who subsequently obtained title.

8.12 One of the legal requirements that effectively protect interested

persons where the land that is subject to a sale transaction

belongs to the estate of a deceased person is the requirement

by the personal representative to obtain leave of court before

selling the property, as per section 19(2) of the Intestate

Succession Act4 . The Supreme Court held in the cases of

Borniface Kafula v Billings Choonga Mudenda 6 and

Mirriam Mbolela v Adam Bota 7 that a purported sale of land

belonging to an estate without the authority of the court is

null and void and therefore unenforceable. In the Borniface

Kafula case, the court went on to order a refund of the

purchase price, despite the contract of sale having been

executed and completed by the administrator and the

20
•

purchaser, as no authority had been obtained from the court

prior to the sale.

8.13 The question we are now left to determine is whether the

learned trial court correctly found that the appellant could
have gone further in his due diligence in order to ascertain the
proprietary status of the subject property. We are inclined to
agree with the lower court in this regard. The appellant's
conduct fell short of the standard of due diligence required
when one is purchasing land, which both the Supreme Court
and ourselves have reiterated in a number of cases, including
Elias Tembo v Maureen Chirwa, Duncan Chirwa, The
Attorney General and Lusaka City Council and Peggy
Kandesha.s

8.14 The appellant herein did not satisfy himself that the land was
not subject to any other interest by conducting a search at the
Ministry of Lands. Had he done so, he would have discovered
that the deceased was not the title holder and as such, his
estate had no title which the administrator could pass on to
the appellant by way of sale. In any event, the mere fact that
the property was being sold by a personal representative as
beneficial owner should have put him on notice to investigate
whether the vendor had the authority of the court to sell the
said property. We find that the fifth ground of appeal lacks
merit and we accordingly dismiss it.

21
8.15 We uphold the holding of the court below;
"that the 1st respondent i.e. is the legal owner of the
subdivision 'v' of Farm No. 938 Mufulira and that he is entitled
to possession of the said property".

9.0 Conclusion
9.1 For reasons set out above, this appeal fails in its entirety. We
award costs to the 1st respondent, to be taxed in default of
agreement.

F.M. Chishimba
COURT OF APPEAL JUDGE

D.L. Y. Siching SC P.C.M. Ngulube

COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE

22