Judgment Delivered on 21st February 2020
Court: In the Supreme
Court of Zambia, Holden at Kabwe (Civil Jurisdiction)
Panel: Malila,
Kajimanga and Kabuka JJS
Judgment of the
Court by: Malila, JS
Subject
Matter: Land Law -
Mistaken Non-Owner Improver - Rights of Title Holder in Zambia - Unlawful
Occupation
Facts:
This case involves an appeal by Prisca Lubungu (the
Appellant) against a High Court judgment concerning land in Ndola. The first
respondents, a group of 54 individuals, were offered various pieces of land in the
Ndola Lime Area, Ndeke, by the Ndola City Council (the Second Respondent)
between January 2004 and December 2006 for residential development. They paid the
necessary fees and commenced development, with some completing their
structures.
In October 2007, the Second Respondent informed the
first respondents that the land allocation was illegal and began demolishing
structures. The first respondents later discovered that the Appellant had
obtained a certificate of title for Farm No. 36834, covering the properties offered
to them, on February 8, 2011.
The first respondents initiated proceedings in the
lower court seeking declarations that the cancellation of their offer letters
was illegal and void, that the Appellant was not entitled to possession or
compensation from them, and alternatively, that they were entitled to
compensation for their developments if demolished, and indemnification from the
Second Respondent.
The Appellant's case was that she had an interest in
Farm 36834/M Ndola since 2004, acquired legally, and that the first respondents
had encroached upon it. She counterclaimed for damages for loss of use,
trespass, and vacant possession.
The Second Respondent denied the First Respondent's
claim, asserting that the land was illegally allocated by unauthorised persons
and that the payments received were outside the scope of their employees'
duties.
The High Court held that the cancellation of offer
letters was lawful as the land belonged to the Appellant. However, it
"generously" ordered the Appellant to be compensated by the Second
Respondent for the land, allowing the first respondents to continue occupying
the Appellant's plots "without disturbance." The court also ordered
the Second Respondent to pay the Appellant damages for loss of use.
Issues:
1. Whether the High
Court erred in allowing the first respondents to continue occupying the
Appellant's legally owned land, despite her bona fide certificate of title.
2. Whether the High
Court erred in finding that the first respondents were entitled to quiet
enjoyment of the illegally occupied plots due to their developments.
3. Whether the High
Court erred in ordering the Ndola City Council (Second Respondent) to pay
damages for loss of use of the land to the Appellant, instead of ordering the
first respondents to vacate and pay damages.
4. Whether the first
respondents were entitled to compensation for the developments they put up on
the Appellant's land.
5. Whether a
property owner holding title be divested of their property without consent or
acquiescence merely because a mistaken improver has developed it?
Holding:
On Issues 1 &
2: The Court held that the High Court's decision to
allow the first respondents to continue occupying the Appellant's land, despite
her legal ownership evidenced by a certificate of title, was a moral judgment
rather than a legal one. A certificate of title is conclusive evidence of
ownership, bestowing rights of quiet and exclusive possession, control,
enjoyment, and disposition. The High Court's order directly contradicted these
legal rights. The first respondents, being in adverse possession without legal
title, were in a precarious position and not entitled to such a remedy.
On Issue 3: The Court found
that the High Court was wrong to order the Second Respondent to pay damages for
loss of use. The legal obligation to pay damages for trespass and loss of use
rests with the occupants of the property, i.e., the first respondents. The
Second Respondent's actions were deplorable, but the direct liability for
trespass and loss of use lay with those who occupied the land.
On Issues 4 &
5: The Court reiterated the established principle
that a person who develops land they honestly believe belongs to them, but
which in truth belongs to someone else, is not normally allowed to recover the
cost of such improvements if the true owner has not acquiesced. Improvements to
realty become part of the realty (quicquid
plantatur, solo solo cedit). The Court emphasized that allowing the first
respondents to benefit from their unlawful acts would amount to unjust
enrichment. The Second Respondent, having no title, could not confer a better
title on the first respondents.
Therefore, the Supreme Court ordered the first
respondents to vacate the Appellant's land forthwith. The developments on the
land, having become part of the land, now vest in the Appellant landowner. The
Court also awarded damages to the Appellant against the first respondents for
trespass and loss of use of the said land, to be assessed by the Deputy
Registrar. Costs were ordered against the Second Respondent due to its
egregious conduct in the land allocation process.
Full Case: Here