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SCZ SELECTED JUDGMENT NO. 5 OF 2019 P. 170

IN THE SUPREME COURT OF ZAMBIA AppealNo.90/2016

HOLDEN AT NDOLA SCZ/8/214/2015
(Civil Jurisdiction)
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BETWEEN:

SAILAS NGOWANI 1 S'J'. APPELLANT

CHANFYA LAWRENCE, 2ND APPELLANT
CHITAU JOYCE 3RD APPELLANT
.'" ' ,.
.
TEWESHE MATELO 4™ APPELLANT
MUTINTA DOMINIC 5™ APPELLANT <'

LONGWANIDAVY 6™ APPELLANT
· MACHONA MOSES 7™ APPELLANT

AND

FLAMINGO FARM LIMITED RESPONDENT

Coram: Hamaundu, Malila, Kaoma, JJS

On 5th March, 2019 and 11th March, 2019

For the Appellants: N/A

For the Respondents: Mr. Z. Muya, Muya & Company

JUDGMENT

MALILA, JS delivered the Judgme'n(of the Court.

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P. 171
Cases referred to:
1. Still Water Farm Limited v. Mpongwe District Council and Others (SCZ
Appeal No. 90 of 2001)
2. John Mugala andKennethKabenga v. The Attorney General (1988-1989)
ZR 171
3. Attorney General v. Tall and Zambia Airways Corporation Limited
(1995/ 1997) ZR 54
4. London Ngoma and others v. LCM Company & Another (1999) ZR 75
5. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 172
6. Attorney General v. Marcus Kapumbu Achiume (1983) ZR 1
7. Siwale v. Siwale (1999) ZR 84
8. Winnie Zaloumis (in her capacity as National Secretary of MMD) v. Felix
Mutati & 3 Others (Selected Judgment No. 28 of 2016)
9. Teddy Puta v. Ambidwire Friday (Selected Judgement No. 43 of 2017)

Legislation and other sources referred to:

1. Lands and Deeds Registry Act, chapter 185 of the laws of Zambia
2. High Court Act, 'chapter 27 of the laws of Zambia
3. Land Circular No. 1 of 1985
4 ..Lands Act, chapter 184 of the laws of Zambia
5. Statutory Instrument No. 89 of 1999
6. Halsbury Laws of England (4th Edition)

This appeal raises a somewhat disquieting issue regarding the

effect of a grant of a certificate of title in what is traditionally a

customary area, and in particular whether there is room for the

survival of some customary practices in respect of such land.

The appellants were small scale farmers and subjects of Chief

Lesa of the Lamba people of the Copperbelt Province. They were

allocated various adjoining pieces of land on diverse dates going back

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to 1993. The land was allocated for both farming and residential

purposes. They allege that the total area delineated to them

collectively had more than 300 people related to or connected with

one or the other of the appellants.

From the appellants' perspective, in 1996, the caretaker Chief

Lesa, Elliot Juma, assigned a Mr. Kabwe a piece of land adjoining

that of the first appellant. Mr. Kabwe later sold that piece of land to

Mr. Sandie Sinyangwe. The latter engaged a land surveyor to mark

and demarcate the land he had bought. That marking and

demarcation exercise was, according to the appellants, done in the

absence of the appellants and the local traditional leadership known

as 'ba chilolo' in total contravention of the procedure for customary

land alienation.

It is the appellants' further claim that due to failure on the part

of Mr. Sinyangwe to develop or otherwise utilize the land, a

subsequent Chief, Chieftainess Lesa, Margaret Musonda,

repossessed the land in 1996 and allocated it to the second and third

appellants. Around the same time as Chieftainess Lesa repossessed

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the land from Mr. Sinyangwe, the latter purported to transfer the land

in question by way of sale to Flamingo Farm Limited, the respondent

in these proceedings.

In their continued narration, the appellants claim that Chief

Lesa did between 2003 and 2006 make further allocations of the

subject land to the fourth, fifth, sixth and seven appellants. The

respondent, who had since obtained a certificate of title without

following procedure for obtaining such title in a customary area, now

had the audacity of threatening the appellants with eviction. They

allege further that the transfer of the land from Mr. Kabwe to Mr.

Sinyangwe and finally to the respondent was all done without the

Chiefs consent and in contravention of land alienation procedures in

a customary area.

It is on the basis of the foregoing facts that the appellants then

approached the High Court with a view to obtaining from the court,

an order for the cancellation of the certificate of title issued in respect

of the subject property; a declaratory order that the appellants were

the lawful owners of the land in question; an injunction restraining

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P. 174

the respondent from forcibly evicting or removing the appellants from

the said land; costs and any other relief.

The respondent, of course, resisted most categorically the

appellants claims. From its perspective, the appellants were never

allocated the land in question by Chief Lesa as claimed, but had

occupied the land upon being wrongly informed that Mr. Sinyangwe,

the previous owner, had died. The respondent admitted, however,

that the land had been assigned by Chief Lesa to Mr. Kabwe who sold

the same to Mr. Sinykgwe. According to the respondent,

Chieftainess Lesa never repossessed the subject land as alleged nor

did she allocate it to the second and third appellants, but reiterated

that the land had been occupied upon some misinformation that Mr.

Sinyangwe had passed on to glory.

The respondent maintains that at the time it purchased the

property in question from Mr. Sinyangwe, it was already on title and

there was thus no obligation to follow the procedure for obtaining

title in a customary area. The respondent adds that the transfer of

the land from Mr. Kabwe to Mr. Sinyangwe's company, Santrade

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Investment Limited, was done with the authorization and consent of

the Chief and that the subsequent sale between Santrade Investment

Limited and the respondent required no further adherence to the

procedures under customary land as the land was already on title.

The respondent counterclaimed damages for illegal occupation

by the appellants of its land; a declaration that it was the lawful

owner of the land in issue; an injunction restraining the appellants

from interfering with the respondent's right to possession and quiet

enjoyment of the land, costs and any other relief.

After hearing the parties at trial, and considering the evidence

deployed before him, the learned High Court judge held that the

appellants' claim was doomed to fail. He heard evidence from Mr.

Sinyangwe on how he bought the land from Mr. Kabwe, obtained the

Chiefs consent, applied to the Council and submitted all the

requisite documents for approval and recommendation to the

Commissioner of Lands for the eventual issuance of the certificate of

title. Upon being satisfied, the Council approved the application and

recommended to the Commissioner of Lands to issue a title deed in

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the name of Santrade Investments Limited, a company in which Mr.

Sinyangwe had an interest. From the evidence available to him, the

judge was satisfied that all this happened way back in 1999.

Guided by sections 33 and 34 of the Lands and Deeds Registry

Act, chapter 185 of the laws of Zambia, the judge held that

cancellation of a certificate of title could only be done where fraud or

impropriety in its acquisition has been proved. The judge found from

the evidence available before him that, Mr. Sinyangwe bought the

land from Mr. Kabwe in 1996 and the land capability map was

endorsed by Chief Lesa on 26th January 1997, while the Council

approved and recommended the issuance of title deeds in 1999. The

land, according to the judge, belonged to Mr. Sinyangwe long before

the alleged allocations were purportedly made to the second and the

seventh appellants.

The learned judge accordingly dismissed the appellants' claims

and declared the respondent as the rightful owner of the land in

question. He also issued an injunction restraining the appellants'

possession of the land and directed that the respondent forthwith

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evicts the appellants from the land. The judge also ordered damages

against the appellants for illegal occupation of the appellants' land

which damages were to be assessed by the Deputy Registrar.

The lower court judgment has so riled the appellants that they

have now approached this court with the following complaints

against the lower court judge:

1. The court below erred and misdirected itself in law when it held
that the appellants ought to have pleaded fraud for them to
succeed in their action and that fraud was the only ground on
which a certificate of title could be cancelled. Further that the
issue to be determined or the dispute between the parties was the
cancellation of the certificate of title No. 236233 for Lot No.
N/295/M.

2. The court below erred and misdirected itself in law when it held
that it was necessary to join the respondent's sole witness, a Mr.
Sandies Sinyangwe, to the proceedings in order for the appellants
to succeed in their claims.

3. The trial court erred and misdirected itself in law when it ordered
the appellants to close their case before calling all their witnesses
and later on holding that there was no evidence to prove the
appellants' claim.
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P. 178

4. The trial court erred and misdirected itself in law and fact when it
failed in its duty to adjudicate upon every aspect of the suit
between the parties so that every matter that was in controversy
was determined to finality.

5. The court below misdirected itself in law and fact when it held that
the plaintiffs misapprehended their case.

6. The court below erred and misdirected itself in law and fact when
it found that the land was already on title and as such it could not
be subject to the customary law.

Very interesting developments were recorded at the hearing of

this appeal. Counsel for the appellants had duly filed the heads of

argument but stayed away from the hearing for reasons not

immediately obvious to us. The usual rule 69 notice of non-

appearance was not filed. On the other hand, we had Mr. Muya,

learned counsel for the respondent, ready to argue the case. He had,

however, not filed the heads of argument in accordance with the

applicable rules.

We declined his application to file the heads of argument out of

time. This appears to have caught Mr. Muya on the wrong foot. He

was thus unable to participate meaningfully in the appeal. In

adjourning the matter for judgment on a date to be advised, but

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within the session, we assured Mr. Muya that we would, as usual,

take a judicious approach which entails that the mere fact that the

appellants had their heads of argument filed while the respondent

did not, does not ipso facto mean the appeal succeeds.

In the heads of argument filed on behalf of the appellants by

Messrs Derrick Mulenga & Company, it was contended, in support of

ground one, that the lower court judge was wrong to hold that in

order to support the appellants' plea that the certificate of title be

cancelled, the appellants had to allege fraud and, at trial, prove such

fraud on the part of the respondent in the acquisition of the land in

question. According to counsel for the appellants, certificates of title

have been cancelled on other grounds than fraud as well. They cited

the case of Still Water Farm Limited v. Mpongwe District Council and

Othersl1! where a certificate of title was cancelled because the land in

issue was not alienated in accordance with section 3(4) of the Lands

and Deeds Registry Act.

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P. 180

It was also submitted that from the authorities cited by the

learned lower court judge in his judgment, the judge correctly noted

that impropriety was also a ground for cancelling a certificate of title,

yet the learned judge chose to make fraud the focus and reason for

his judgment.

The appellants in their case in the court below were claiming

ownership of the land in issue. Their claim was that they owned

different pieces of land now known as Lot No. N/295/M in

Chieftainess Lesa's Chiefdom. This was the gist of the dispute

between the appellants and the respondent. At the core of resolving

that dispute was a consideration of the procedures and steps followed

in the acquisition of the land from the initial owner to the respondent.

According to counsel for the appellants, the pleadings are clear as to

what the case was about. It was, therefore, astonishing that the

lower court judge stated in his judgment as follows:

Before I refer to the parties' submissions, I wish to state for clarity

what this case is all about. The Plaintiff have sought an order for
cancellation of the Defendant's certificate of title No. 236233 relating
to lot No. N/295/M situated at Masaiti in the Copperbelt Province of
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P. 181

the Republic of Zambia. Thus, the declaratory order sought can only
be made after the certificate of title has been cancelled.

According to counsel for the appellants, the fact that the respondent

had purchased land that was on title was not in issue. What was in

issue was that the respondent was not a bonafide holder of the title

to the land.

The appellants' case was that the predecessor in title did not

follow procedures of land alienation and conversion to statutory

leasehold in a customary area, as such good title could not pass to

the respondent. Had the learned trial judge considered this aspect of

the matter he would have come to a different conclusion.

According to counsel for the appellants, for the appellants to

succeed in their claim they had to show that the predecessors in title

had not passed good title to the respondent and that the procedures

in the allocation and conversion of the land had not been followed.

Counsel ended by reiterating that this matter was not about pleading

fraud but about irregularities in the manner in which title was

obtained in a customary area, particularly the failure to follow

procedure.
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P. 182

As regards ground two of the appeal, the appellants took issue

with the lower court's suggestion that Mr. Sandie Sinyangwe, whose

company Santrade Limited had sold the subject land to the

respondent, should have been joined as a party to the proceedings

rather than merely be called as a witness.

The learned counsel submitted that an action cannot be

defeated merely on account of non-joinder or misjoinder. Order XIV

rules 5( 1) and rule 3 of the High Court Rules, chapter 27 of the laws

of Zambia, were cited to buttress the point that a trial judge has

power to order joinder of any person who the judge considers would

be entitled to, or claims some share or interest in the subject matter

of the suit or is likely to be affected by the result of the suit. Counsel

also quoted from the case of John Mugala and Kenneth Kabenga v.

The Attorney General/21, where we reiterated that Rule 5(3) did not

allow an action to be summarily defeated by reason of non-joinder or

misjoinder of parties.
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P. 183

Counsel, therefore, argued that in light of the foregoing

authorities, it was open to the judge to join Santrade Investment/Mr.

Sandie Sinyangwe granted that an action cannot fail on grounds of

non-joinder of a party that could easily be joined to the proceedings

at any stage.

Counsel also quoted the case of Attorney General v. Tall and

Zambia Airways Corporation Limited/3! where we stated that:

In our view, without prejudicing the outcome of the trial court's

judgment, but going by the documentary and oral evidence on record,
the joining of the Attorney General in these proceedings would be
necessary to ensure that the matter in the cause may be effectually
and completely determined and adjudicated upon to put an end to
any further litigation. Both our Order 14 and the English Order 15 as
well as s.13 of Cap. 50 are intended to avoid a multiplicity of actions.
Although the learned trial court relied on a wrong provision of the law
in joining the Attorney General to these proceedings, the court had
still the inherent jurisdiction to make the order in the interest of
justice.

The case of London Ngoma and Others v. LCM Company & Anotherl4i

was also cited to buttress the same point.

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P. 184

Counsel reiterated that the lower court judge had both the

power and the obligation to order joinder of Santrade/Mr. Sinyangwe

in order to achieve a just result.

Moving to ground three of the appeal, counsel for the appellants

criticized the trial judge on a procedural issue. It was submitted that

the judge was wrong to have ordered the appellants to close their

case before calling all their witnesses and later holding that there was

no evidence adduced to prove the appellants' claim.

The appellants' counsel quoted, rather extensively, from the

judgment of the lower court before submitting that the ordering of

the appellants to close their case led to a failure to challenge the

authenticity of the minutes produced by the respondent, and to call

the current Chief as witness to speak to matters of repossession of

the land and how it was done.

The appellants' counsel also grumbled that by stopping the

appellants from calling their other witnesses, they were disenabled

from calling a witness to testify that the respondent had been advised

against purchasing the land in issue. Equally, the evidence relied

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upon by the court that the appellants went to settle on the land after

information wrongly filtered that Mr. Sinyangwe had passed on,

could only be rebutted or confirmed by evidence from the Chief who

could not, in the circumstances explained, be called as witness.

Although the appellants did make an application for reopening

the appellants' case so as to call other witnesses, that application

was not entertained by the lower court judge thus severely

prejudicing the appellants.

Under ground four, the judgment of the lower court was

impugned on account of its apparent failure to cover every aspect of

the suit between the parties so that every aspect in controversy was

determined in finality. For this submission, our decision in Wilson

Masauso Zulu v. Avondale Housing Project Limited/SJ was cited as

authority. Counsel also referred to our judgment in Attorney General

v. Marcus Kapumbu Achiume/6/ where we held that an unbalanced

evaluation of the evidence, where only the flaws of one side but not

of the other are considered, is a misdirection which no trial court

should reasonably make.

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P. 186

After quoting section 13 of the High Court Act, chapter 27 of the

laws of Zambia, counsel submitted that the trial court had prejudiced

the matter when he suggested that anyone who had a certificate of

title over land could not have his ownership challenged. According

to counsel, 'the trial court was interpreting sections 33, 34, and 35

before the sections could be invoked into play.'

Counsel also contended that the lower court did not address the

issue how the respondent's hectarage increased from 50 hectares to

277 hectares when the law clearly stipulates that a Chief cannot

grant land in excess of 250 hectares. This is in accordance with

Ministry of Lands, Land Circular No. 1 of 1985. Further, the

predecessor in title purchased land from Mr. Kabwe who had 50

hectares and this evidence was unchallenged.

The court below, according to counsel for the appellants, did not

pronounce itself on the authenticity of the land capability map. It

did not make any finding on the stamps vis a vis the procedure with

regard to alienation of land in a customary area.

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P. 187

Counsel ended his submission on ground four by restating that

the court below was bound to consider all the evidence produced

before it. It did not.

Turning to ground five of the appeal, the appellants disputed

the lower court's holding that the appellants had misapprehended

their case. It was in fact the trial court, according to counsel, which

misapprehended the appellants' case and this is evident from the way

the judge handled the injunction application. The lower court's

insistence that an owner of land on title cannot be challenged except

on grounds of fraud was, according to the counsel for the appellants,

wrong. Section 7(1) of the Lands Act, chapter 184 of the laws of

Zambia provides that:

7(1) Notwithstanding subsection (2) of section thirty-two but subject

to section nine, every piece of land in a customary area which
immediately before the commencement of this Act was vested in or
held by any person under customary tenure shall continue to be so
held and recognized and any provision of this Act or any other law
shall not be so construed as to infringe any customary right enjoyed
by that person before the commencement of this Act.
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P. 188

According to counsel for the appellants, the afore quoted provision

recognizes the rights of individuals holding land under customary

tenure and the trial court failed to appreciate this reality.

The focus of the appellants' argument under ground six of the

appeal was on procedure for acquisition of land in a customary area.

It was submitted that the court below misdirected itself when it found

that the land was already on title and as such could not be subjected

to the customary law of the area. Counsel quoted section 3(4) of the

Lands Act which enacts, among other things, that the President shall

not alienate any land situated in an area where it is held under

customary tenure without consulting the Chief and the Local

Authority in the area and without consulting any other person or

body whose interest might be affected by the grant. Further, the

President shall not alienate such land where the applicant for

leasehold title has not obtained the prior approval of the Chief and

the Local Authority within whose area the land is situated.

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P. 189

Counsel then quoted section 8(2) and (3) of the Lands Act as

regards some of the requirements to be fulfilled when converting

customary land to statutory land. Also quoted were Regulation 2(4)

of Statutory Instrument No. 89 of 1999 and Land Circular No. 1 of

1985.

According to counsel for the appellants, the sole witness of the

respondent testified that the procedure as set out in the law, was

followed. That evidence however ignored the important role played by

the traditional leadership.

It was, therefore, counsel's fervent prayer that the appeal be

allowed and that the respondent be condemned in costs.

We had earlier on in this judgment indicated that Mr. Muya's

request to file the respondent's heads of argument at the hearing of

the appeal was rejected. He thus made no submission in support of

his client's position.

After carefully considering the documents available 1n the

record of appeal as well as the appellants' heads of argument, we

form the view that the overarching issue is whether legitimate

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P. 190

occasion had arisen for cancelling the certificate of title issued to the

respondent. On the facts, the learned High Court judge found that

fraud in the issuance of the said certificate was not pleaded and

proved as required and, therefore, the certificate of title could not be

cancelled. This position effectively supports the respondent's stand.

The appellants, however, are of the view that it is not only fraud,

properly pleaded and proved, that would justify the cancellation of a

certificate of title. Other instances short of fraud such as failure to

follow procedures for land alienation would, according to the

appellants, have the same effect.

We have carefully addressed our minds to section 33 of the

Lands and Deeds Registry Act, upon which the lower court judge

appeared to have anchored his decision. The section provides that:

A certificate of Title shall be conclusive as from the date of its issue

and upon and after the issue thereof, notwithstanding the existence
in any other person of any estate or interest, whether derived by grant
from the President or otherwise, which but for Parts III to VII might
be held to be paramount or to have priority; the Registered Proprietor
of the land comprised in such Certificate shall, except in case of
fraud, hold the same subject only to such encumbrances, liens,
estates or interests as may be shown by such Certificate of Title and
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P. 191

any encumbrances, liens, estates or interests created after the issue

of such Certificate as may be notified on the folium of the Register
relating to such land but absolutely free from all other encumbrances,
liens, estates or interests whatsoever:

(a) Except the estate or interest of a proprietor claiming the

same land under a current prior Certificate of Title issued
under the provisions of Parts III and VII; and

(b) Except so far as regard the omission or misdescription of any

right of way or other easement created in or existing upon
anyland;and

(c) Except so far as regards any portion of land that may be

erroneously included in the Certificate of Title, evidencing
the title of such Registered Proprietor by wrong description
of parcels or of boundaries.

Section 34 then stipulates instances when an action for

possession or other action for recovery of land shall be sustained

against the registered proprietor holding a certificate of title. These

instances include the case of a mortgagee against a mortgagor in

default; in the case of the President as against the holder of a State

Lease in default; the case of a person deprived of or claiming any land

included in any certificate of title of the other land by misdescription

etc.
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P. 192

Our view of all these requirements is that notwithstanding the

mandatory rendition of section 33 of the Act, fraud is not the only

ground upon which a certificate of title may be canceled. Some of

the instances set out in section 34 may equally lead to cancellation

of a certificate of title.

If we retreat and go back to section 3(4) of the Lands Act, we

note that the President has no authority to alienate any land held

under customary tenure:

(a) without taking into consideration the local customary law on

land tenure which is not in conflict with this Act;

(b) without consulting the Chief and the Local Authority in the area
in which the land to be alienated is situated ...

(d) ifan applicant for a lease hold title has not obtained the approval
of the Chief and the Local Authority within whose area the land
is situated."

The real question we ask is what this limitation of the powers of the

President to alienate land in customary areas entails in practice. In

other words, what is the situation where, despite these prescriptions,

a certificate of title is obtained in such area, anyway? We do not

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P. 193

think that the situations envisaged in section 3(4) contemplate fraud.

We shall develop this point later on in this judgment.

In Still Waters Limited v. Mpongwe District Council & Others/I!, to

which counsel for the appellants referred in their heads of argument,

the situation was not dissimilar from the one before us, taking the

appellants narration pro veritate. There, the Chief allocated land to

the appellant company after consulting traditional councilors (ba

chilolo). The third and fourth respondents claimed that they were

interested in the land because it was adjacent to their farms and that

the previous Chief had already allocated the land to them.

Regrettably, the then Chief neither consulted nor obtained the third

and fourth respondents' 'no-objection' or concurrent before allocating

the land to the appellant company. In a judgment delivered on our

behalf by our learned sister, Chibesakunda JS, we stated as follows:

Although we agreed with Dr. Sakala's forceful argument that the

Chiefs enjoy autochthonic powers over land held under customary
tenure and especially undeveloped land nonetheless section 3(4) of
the Lands Act is couched in such a way that it is mandatory for the
third and fourth respondents to have been consulted before allocating
the land to the appellant company. Failure to do so results in the
purported allocation to be null and void ... In Siwale v. Siwale/71 the
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P. 194

deceased, who had been given land by the colonial authorities with
the approval of the local Chief. sometime in 1929, died intestate. The
appellants, who were his siblings, objected to their last brother
obtaining 'title' deeds to the land without their consent. This court
agreed with them that under section 3(4) it was obligatory on the part
of the traditional Chief to seek their consent, as according to that
section, their interest would have been affected by one of their
brothers, obtaining title deeds to the land. This court pointed out to
the fact that land held under customary tenure can only be alienated
if consent is obtained by the traditional Chief from those whose
interest may be affected by such allocation. In the Siwale/71 case the
core contention was exactly the same contention as in the case before
us. In this case before us, the core question is whether or not the
procedure adopted by the current Chief in allocating to the appellant
company without consulting the third and fourth respondents was a
proper procedure. Our view is that the procedure adopted by the
current Chief was wrong and as such the allocation of the land to the
appellant is null and void.

We agree therefore with counsel for the appellants that fraud as

specified in section 33 of the Lands and Deeds Registry Act does not

provide the only pathway by which a certificate of title may be

cancelled. Other transgressions of the law such as circumvention of

the procedure prescribed in the law which would render null and void

the allocation of land, would be just as fatal.

 J26

P. 195

Where fraud is the basis for the application for an order

directing cancellation, such fraud must be specifically alleged in the

pleadings and proved at trial. To this extent the lower court judge

cannot be faulted. The approach of the lower court judge, however,

does not appear to us to accord with the position of the law as we

have explained it, that is to say, other instances than fraud could

possibly lead to cancellation of a certificate of title. The judge

proceeded from the premise that:

in order for the Plaintiffs to succeed, it was incumbent upon them to

firstly allege fraud and at trial prove fraud on the part of the
defendant in its acquisition of the land in issue from Santrade
Investment Limited ...

We believe that this narrowing of the approach the appellants

should have taken is without legal justification whatsoever. Much as

the appellants had prayed for an order of cancellation of the

certificate of title as one of the principal relief, they did not plead that

such cancellation should be on the basis of fraud. In their statement

of claim, they state as follows:

11. The Defendant has since obtained Certificate of Title No.

236233 for Lot No. N/295/M without following procedure for
obtaining title in a customary area.
 J27

P. 196

12. The Defendant is now threatening the Plaintiffs with eviction

and a meeting was held with the Council Secretary for Mpongwe
District with the aim of resolving the impasse.

13. The transfer of the land from Mr. Kabwe and finally to the
defendant was done without obtaining of the Chief's consent
and following land alienation procedures under customary land.

It is on the basis of these factors that the cancellation of the

certificate of title was sought - not fraud. We agree therefore with

the appellants that they did not need to plead and prove fraud for

them to succeed in an action premised on failure to follow procedure.

We have already pointed out earlier that failure to follow procedure

could render the whole land acquisition process null and void as we

stated in Still Water Fanns Limited v. Mpongwe District Council and

Others11i. The effect of such a finding is that the certificate of title is

liable to be cancelled.

Ground one of the appeal is therefore bound to succeed, and we

uphold it.

Under ground two, the appellants fault the lower court judge for

suggesting that Mr. Sandie Sinyangwe, owner of Santrade Limited,

should have been joined to the action. The authorities cited by

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P. 197

counsel for the appellants on the power of the court to join a party to

proceedings either suo motu or on application by a party, are all

properly located. We have already captured the gist of those

authorities in this judgment. A judge may order joinder of a party if

this will advance the course of justice in a matter. It is also correct

to state, as does the appellants' counsel, that failure to join a party

to proceedings does not defeat an action.

There are, however, two points that we need to consider

critically under this ground of appeal. First, did the judge really hold

that for the appellants to succeed they needed to have joined Mr.

Sinyangwe? Second, was Mr. Sinyangwe bound to be affected by the

outcome of the dispute between the two protagonists in this appeal

so as to make his joinder imperative?

We have read the judgment of the lower court over and over. We

do not see any statement in it to the effect attributed by the

appellants to the judge that it was necessary to join Mr. Sinyangwe

to the proceedings if the appellants were to succeed in the claim. The

closest the learned lower court judge came to making an intimation

 J29

P. 198

of the desirability of joining Mr. Sinyangwe is when he stated in the

passage quoted by counsel for the appellants that:

I however, observe that the vendor of the said land, Santrade

Investment Limited, the previous owner was not and has not been
sued and is not even a party to these proceedings. These facts must
be borne in mind and are very central to these proceedings ... It must
be borne in mind that Mr. Sinyangwe only came as a witness and not
as a party. Like I said he has never been sued concerning how he
obtained title of the land he sold to the defendant.

Although we note the underlying message in this passage that

it would have been preferable, from the judge's perspective, to have

joined Mr. Sinyangwe/Santrade Limited to the proceedings, we are

not able to go so far as to conclude, as the appellants have done, that

the judge stated that the failure to join Mr. Sinyangwe to the

proceedings would doom the appellants' case. Our own view is that

Mr. Sinyangwe, appearing as a witness in the matter was sufficient

for purposes of providing such information in his recollection as

would be necessary for the just disposal of the dispute. As far as the

testimony is concerned, we do not see the difference between that of

Mr. Sinyangwe as a party to the proceedings and that of Mr.

Sinyangwe as a witness.
 J30

P. 199

This brings us to the other subsidiary question we had asked:

was Mr. Sinyangwe or Santrade bound to be affected by the outcome

of these proceedings so much so that his joinder to the action became

indispensable? We think not. Mr. Sinyangwe had transacted with

Mr. Chanda and with the Chief before he entered into a separate sale

agreement with the respondent. He received his payment from the

respondent; ended the chapter and closed his books. It would, in our

view, be unfair to hound him over a transaction which the buyer of

his interest can quite ably explain. More importantly, whatever the

outcome of the dispute between the present parties is not bound to

affect him directly. If it were to be found that the procedure by which

he acquired title over the land was tainted or irregular he would have

his own issues to settle with either the respondent or Chief Lesa to

which the appellants would not be privy. Yet if it were held that the

respondent's acquisition of title to the subject land was impeccable,

again Mr. Sinyangwe would have no business with the appellants.

 J31

P. 200

More grievously perhaps, joinder of parties should first and

foremost be the prerogative of either of the parties to the dispute. It

is not for the court to choose who should be a defendant in what

matter. It is not in the province of the court to contrive claims against

third parties to actions before it.

From what we have stated above, ground two has no merit and

should fail. We dismiss it accordingly.

Turning to ground three, the appellants' grievance is that they

were ordered to close their case before vital witnesses were called.

The appellants' complaint here inevitably has to be contextualised.

We need to understand precisely what transpired if the attitude of

the judge has to be appreciated. To this end we have perused the

record of proceedings for the 4th and 5th June 2015.

Apparently, trial commenced on 3rd February 2015. After

hearing one witness, the matter was adjourned to the 4th and 5th June

at 09:00 hours on both dates. On 4th June, counsel for the appellants

indicated that he had two witnesses to call who were, however,

running late. He sought for the matter to be stood down for 1 hour
 J32

P.201

30 minutes. The judge declined the application to step the matter

down in view of the fact that when the hearing date and time was

agreed, both parties' counsel were present.

Counsel for the appellants then asked for an adjournment

which the court granted to the following day, 5th June 2015, given

that trial had been scheduled for two days.

On the 5th June 2015, one more witness, a surveyor, gave

evidence on behalf of the appellants before counsel for the appellants

once more intimated that he wished to call two more witnesses. He

sought an adjournment for that purpose. Counsel for the respondent

raised a dignified objection to the application for an adjournment.

The judge declined the application for an adjournment. Counsel for

the appellants then proceeded to close the appellants' case. The

respondent then opened its case and called its sole witness.

It is under these circumstances that the appellants are now

grumbling that they were forced to close their case before they could

call some vital witness.

 J33

P. 202

Our view is that this ground spins on the issue of case

management. When a trial judge gives directions on the conduct of

a matter, the parties to it are bound to respect such directions or

apply timely to vary them ifit proves impossible to comply with them.

The learned authors of Halsbury Laws of England (4th ed. Vol. 37

para. 489 at page 170) remind us that a failure to comply with

directions, including in this case readiness to proceed with trial on

the scheduled date, should not lead to postponement of a trial unless

the circumstances of the case are exceptional.

A trial court is clothed with general powers to actively and

effectively manage any case before it. We cannot emphasise enough

that any trial judge ought to take charge and be in control of

proceedings before him or her. In Winnie Zaloumis (in her capacity as

National Secretary of MMD) v. Felix Mutati & 3 Others/BJ we described

the lower court judge's handling of proceedings as a 'classic case of

failure in case management.' We also pointed out that:

... the rules of court require that when matters are filed and allocated
to a judge, they should be court driven by way of a judge giving
appropriate directions in relation to application before him.
 J34

P.203

To this, we added in Teddy Puta v. Ambidwire Friday/9/ that:

In our view, effectively driving proceedings also entails spelling out

lawful sanctions for delinquent parties, and for the judge to effect
those sanctions as prescribed by the law.

Our view is that in handling the matter as he did, the trial judge

was merely being true to his calling and normal expectations in case

management within the broad ideal of court driven proceedings. We

think ground three is destitute of merit.

The appellants' complaint under ground four are that contrary

to established precedent, the lower court did not adjudicate upon

every aspect in the suit between the parties. Two issues that the

judge allegedly did not address are:

(a) that issue of ownership of the subject property, in particular

that the judgment does not show how the respondent and on
what evidence it could be said to be the lawful owner of the
land in issue as contrasted with that of the appellants; and

(b)that issue of how the respondent's hectarage increased from

50 hectares to 277 hectares when clearly the law is that a
Chief cannot grant land in excess of 250 hectares. Related
to this issue, the appellants claim that Santrade Investment
 J35

P.204
Limited purchased 50 hectares from Mr. Kabwe and the
variance cannot be explained.

When we insist in various case authorities that trial courts must

decide every issue in controversy, we do not mean that every question

that arises ought to be determined. Issues in controversy refers to

those issues central to the determination of a dispute. In the course

of putting forward one's claim and defence, many questions arise

which may not be material to the overall resolution of the dispute. An

issue in controversy must be discernable from the pleadings of the

parties. It is raised either in the statement of claim, the defence or a

reading of both of these.

An examination of the pleadings of the parties filed in the court

below, it is clear that the dispute as set out in the statement of claim

is simply that the respondent's title to the subject land is vitiated by

irregularity in its acquisition and thus ought to be cancelled. There

is no relief sought that the history of ownership be traced, nor is there

any question regarding the size of the hectarage raised.

 J36

P.205

We are of the view that the learned judge dealt with the material

questions critical to the determination of the dispute between the

parties. The complaint in ground four is therefore without merit.

Ground five impeaches the judge's opinion that the appellants

could well have misapprehended their case. The appellants submit

that it is not possible for a party who has misapprehended its case to

plead and submit as the appellants did. They submit that it was in

fact the court which misapprehended the appellants' case.

Our considered view is that this ground is hopelessly without

merit. In determining any dispute before him, it is an essential part

of the judge's role to make his own assessment and form conclusions

and opinions. Here the judge, rightly or wrongly, formed the view that

the appellants had misapprehended their case. The appeal should

not be against the mere statement of his opinion. It should be against

the grounds he puts forth for forming that opinion. We find this

ground rather petty, without merit ahd dismiss it accordingly.

 J37

P.206

The final ground of appeal questions the learned lower court

judge's holding that the land in question was already on title and as

such could not be subject to the customary law and practices of the

area.

We think, as we intimated at the beginning of this judgment,

that this is the crucial issue in the present appeal. It is largely

factual, but also legal in substance. The factual aspect of it answers

the question whether the land was already under a certificate of title

at the time the respondent bought it from Santrade Investment

limited. This to us is a straight forward issue. The appellants would

not have been making the claims they are making here if the land

was not a subject of the certificate of title. Evidence on record

indicates that title to the land was obtained in the period between the

sale of the land by Mr. Kabwe to Santrade Investment Limited and

the sale from Santrade Investment Limited to the respondent. The

finding of fact by the judge below that the land was on title when the

respondent purchased it was not perverse. It is supported by

evidence and cannot be assailed.

•

J38

P.207

The question is whether once a piece of land becomes a subject

of a certificate of title it continues to be administered under

customary tenure. Our answer to this question must be in the

negative. Once a conversion of land ownership occurs from

customary tenure to leasehold tenure, the land is governed by a

completely new regime. The obligation of the title holders are set out

in the lease and in the certificate of title none of which refers to

customary land administration. The title holder henceforth becomes

liable to pay ground rent and council rates, as appropriate, which

does not happen under customary land tenure. The period of the

lease is set in the certificate and the right of quiet enjoyment and the

exclusion of others from the land become actualized.

Section 3(4) which the appellants' counsel quoted to buttress

their view that customary methods of land administration continued

to prevail in respect of land under title has been, in our considered

view misinterpreted, and so has section 8(2) and (3) of the Lands Act.

All these provisions apply in such a manner as to stop or prevent the

land in question being converted to leasehold in the first place. The

•

• J39

P.208

land envisioned in those sections does not pass the test for

conversion until it meets the conditions set out in those provisions.

The provisions do not apply to land such as the land in dispute in

this case that has ceased to be under customary tenure.

Ground six is equally without merit. We dismiss it.

The net result is that this appeal is dismissed on all grounds

except ground one. The nominal success of the appeal on that one

ground means that we in substance uphold the judgment of the lower

court together with orders made therein.

We make no order as to costs.

SUPREME COURT JUDGE

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R. M. C. Kaoma
SUPREME COURT JUDGE SUPREME COURT JUDGE