IN THE HIGH COURT FOR ZAMBIA 2021/HP/1520
AT THE PRINCIPAL REGISTRY
HOLDEN AT LUSAKA
(CIVIL JURISDICTION)
In'i'I IE MATTER OF: ORDER H3 OF THE RULES OF SUPREME
COURT OF ENGLAND (WHITE BOOK) 1999
EDITION.
IN TIIIC MATI’ER OF: AN APPLICATION FOR SUMMARY
POSSESSION OF LOT NO. 9459/M SITUATE
AT LUSAKA IN THE LUSAKA PROVINCE OF
REPUBLIC OF ZAMBIA
BETWEEN:
JOESPH MTONGA (saint] in APPLICANT
of Ixynjcclzani Community
AND
CATHERINE PHIRI ST 1st RESPONDENT
DELIAH PHIRI 2nd RESPONDENT
MALA BANDA 3rd RESPONDENT
AND ALL PERSONS UNKNOWN 4th RESPONDENT
Before: The Hon. Mr. Justice Charles Zulu.
For the Applicant: Ms. M. Marebesa and Dr. O. Kaaba, Legal Aid
Counsel, Legal Aid Board.
The Respondents: No appearance
JUDGMENT
Case referred to:
1. LiamondChoka v. Chilufya (S.C.Z. Judgment no. 2 of
2002).
Statutes referred to:
1. The Rules of the Supreme Court of England (RSC) (White
Book, 1999 Edition).
SSf
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INTRODUCTION
The Applicant, Joseph Mtonga, in his capacity as a trustee of
Lonjedzani Community Registered Trustees (a body corporate under
the Perpetual Succession Act Chapter 186 of the Laws of
Zambia), took out an originating summons, dated December 6,
2021, pursuant to Order 113 Rules o f the Supreme Court (RSC)
o f England (White Book 1999) Edition. The object of Order 113
RSC is essentially and solely aimed at giving summary redress to a
land owner to repossess his/her land from a person or persons
occupying the land without his/her consent or licence. The relief
sought by the Applicant was itemized as follows:
i. an order for summary possession of Plot No. 9459/M
situate at Lusaka;
ii. an order for eviction of the Respondents who are
squatters on Plot No. 9459/M situate at Lusaka;
Hi. further or other relief as the Court may deem fit; and
iv. costs of and incidental to this action.
The action was scheduled for trial on February 1, 2022, however,
on the return date, only the Applicant and his Advocates were
present. The Respondents were inexcusably absent. An affidavit of
service was deposed to by Mr. Joseph Mtonga, stating that not only
did the Respondents merely refuse to receive court process, they
emerged with machetes and sticks, and threatened him with
murder, leaving him with the option of dropping the documents to
the ground. That service of the notice of hearing was only later on
made possible in the company of police officers. Having been
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1 that the Respondents were duly served with notices of
, leave to proceed was granted to the Applicant.
SUMMARY OF THE APPLICANT’S CASE
The application was supported by an affidavit and skeleton
arguments. The application was unopposed.
An affidavit in support of the application was deposed to by Joseph
Mtonga, in his capacity as a trustee of Lonjedzani Community
Registered Trustees. He deposed that Lonjedzani Community
Registered Trustees was a youth scheme project under the auspices
of the Catholic Church. He stated that the subject property namely,
Lot No. 9459/M Lusaka, having been acquired by the Applicant,
from Stanley Kananga in the year 1996, was now the registered
property of the Applicant, Lonjedzani Community Registered
Trustees. The Certificate of Title dated December 29, 2002, was
exhibited, showing the Applicant, Lonjedzani Community Registered
Trustees as the registered proprietor of the land in issue.
It was further stated, that at the time the Applicant purchased the
land, the status of the first, second and third Respondents was
that, they were caretakers of the predecessor in title, Mr. Kananga
(the vendor). He added that after the sale transaction, the trio were
retained by the Applicant as caretakers. That around 2019, the trio,
connived with suspected cadres of the Patriotic Front otherwise
herein known as the fourth Defendants, and demarcated the
subject land to themselves and commenced construction of houses.
He stated that several efforts to stop the Respondents from taking
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< possession of the land proved futile, and that instead the
Respondents resorted to resistance and violence.
determination
I have carefully considered the affidavit evidence adduced by the
Applicant. The law regarding the application of Order 113 RSC, was
enunciated in the case of Liamond Choka v. Chiluft/a (S.C.Z.
Judgment no. 2 of 2002} wherein the Supreme Court of Zambia
held:
The editorial introduction provided by the learned
authors of the White Book is quite illuminating. See
Order 113 R (2) (White Book 1999). Apart from tracing the
genesis of the order, the introduction also contains the
following extract. The circumstances which the
procedure can be used are restricted to cases where the
land is occupied by persons who have entered into or
remain in possession of the land without the license or
consent of the person claiming possession.
Recourse is had as well to the case of Saul Kureba v. Ganizani &
Attorney General (1995) S.J 5), the Supreme Court of Zambia in a
judgment by Gardner J.S., held:
We should make it clear that we agreed with the
proposition that, in the ordinary way, one purchaser of
land who acquires a Certificate of Title has a right to
possession against all other persons on the land he has
acquired...
And the inevitable fate of squatters occupying and developing land
in violation of the rights or interests of the registered proprietor was
aptly put by Commissioner M.M.S.W. Ngulube (as he was then), in
the case of Raphael Ackim Namunq'andu v. Lusaka City
Council (1978) Z.R. 358 (H.C.) wherein he held:
Squatters build on their own risk and if the owners of the
land withdraw their permission or licence or if they
decide to demolish a structure built in the absence of any
permission or other lawful relationship, the squatters'
losses though very much regrettable are not recoverable
in a court of law.
Reverting to the present case, I am satisfied that the registered
proprietor of Lot No. 9459/M Lusaka is Lonjedzani Community
Registered Trustees. The Certificate of Title adduced herein
conclusively attests to my findings above. And it is distinct that the
continued occupation of the land by the Respondents is without
consent or licence of the Applicant. Simply put, the Respondents
are squatters amenable to ejection. Therefore, the Respondents
have no lawful justification to remain in possession of the land.
CONCLUSION
In the light of the foregoing, the Applicant is entitled to an order for
possession of the subject land, and I so order.
Costs for the Applicant, to be taxed in default of agreement.
DATED THE 23rd DAY OF FEBRUARY, 2022.
THE HON. MR. JUSTICE CHARLES ZULU
