Lubungu v Kapango and Ors (Appeal 216 of 2016) [2020] ZMSC 141 (21 February 2020)

Key Facts

Issues

• The third issue asks whether a legal owner of land can be divested of part or all of their property without their consent or acquiescence, even if a mistaken improver has constructed developments on the land. The Supreme Court must evaluate if the lower court's judgment improperly allowed the first respondents to retain possession of the land through their improvements, violating the appellant's rights as the registered proprietor.
• The first issue is whether the lower court's order allowing the first respondents to continue occupying the appellant's land, despite the appellant's clear legal ownership, is consistent with the ownership rights of the titleholder. The court below permitted this occupation under the condition that the second respondent (Ndola City Council) compensates the appellant, which the Supreme Court must now assess for legal validity.
• The second issue concerns the legality of the lower court's decision to order the second respondent to compensate the appellant for the loss of use of the land occupied by the first respondents. The Supreme Court must determine if this remedy aligns with legal principles, particularly the rights of the titleholder and the obligations of the parties involved in the unlawful occupation.

Holdings

• The Supreme Court upheld the appellant's appeal on all three grounds. It ruled that the lower court's decision allowing the first respondents (developers) to continue occupying the appellant's land was legally flawed. The court ordered the first respondents to vacate the land immediately, as their occupation was unlawful, and awarded the appellant damages for trespass and loss of use of the land. The court also criticized the lower court for making a moral rather than legal judgment and for failing to grant the appellant vacant possession of her property.
• The court determined that the lower court erred in ordering the second respondent (Ndola City Council) to compensate the appellant for the land occupied by the first respondents. It held that the first respondents, as trespassers, are legally obligated to pay damages directly to the appellant, not through the council. The court emphasized that the council's role in the illegal allocation does not transfer liability to them for the first respondents' actions.
• The court rejected the lower court's failure to grant vacant possession of the land to the appellant. It clarified that the appellant, as the legal titleholder, has the right to exclusive possession and enjoyment of her property. The lower court's order allowing continued occupation without the appellant's consent was deemed a violation of her constitutional rights and legal ownership.

Remedies

• The court awarded damages to the appellant against the first respondents for trespass and loss of use of the land, to be assessed by the Deputy Registrar.
• The first respondents were ordered to vacate the appellant's land forthwith and the developments on the land now vest in the appellant as per the Supreme Court's judgment.
• The developments made by the first respondents on the appellant's land are now vested in the appellant, in accordance with the Roman law doctrine of quicquid plantatur, solo solo cedit.
• The court ordered costs here and below against the second respondent (Ndola City Council) for the reasons provided in the judgment.

Legal Principles

• The court rejected the lower court's allowance of adverse possession by first respondents, emphasizing that adverse possession does not confer legal title. The judgment clarified that occupants without legal title cannot claim rights against the registered proprietor. The court found the lower court's order permitting continued occupation without the owner's consent to be legally unsound, as it violated the appellant's statutory rights under the Lands and Deeds Registry Act.
• The court applied the nemo dat principle, stating that the second respondent (Ndola City Council) could not provide the first respondents with a better title than it possessed. Since the council had no valid title to the land, it could not legally transfer ownership. This reinforced the appellant's exclusive rights as the registered proprietor.
• The Supreme Court emphasized that the lower court's decision was improperly influenced by moral considerations rather than legal principles. Citing Zambia Revenue Authority v. Post Newspapers Limited, the court reiterated that judgments based on sympathy or moral reasoning violate the rule of law, which requires consistency, certainty, and fairness in legal outcomes.

Precedent Name

• Trevor Limpic v. Rachel Mawere & Two Others
• Sambo & Two Others v. Paikani Mwanza
• Raphael Ackim Namung'andu v. Lusaka City Council
• Mazoka & Others v. Mwanawasa & Others
• Goswami v. Essa and Commissioner of Lands
• Nyampala Safaris (Z) Ltd & Others v. Zambia Wildlife Authorities & Others
• Hilda Ngosi v. Attorney General and Lutheran Mission (Zambia) Registered Trustees
• Ramsden v. Dyson

Cited Statute

• Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia
• Supreme Court Rules, Chapter 25 of the Laws of Zambia
• High Court Act, Chapter 27 of the Laws of Zambia
• Constitution of Zambia (Amendment) Act No. 2 of 2016

Judge Name

• M. Malila
• C. Kajimanga
• J. K. Kabuka

Passage Text

• The Supreme Court stated that the lower court's judgment 'undermined the right to possession, control, exclusion, enjoyment and disposition of the whole of the appellant's land' and described it as 'a sort of fraud on reason and logic.'
• The court concluded that the first respondents, as developers of land not their own, 'stand to lose the value of those improvements' and 'are hereby ordered to vacate the appellant's land forthwith.'
• The court found that the lower court judge 'clearly overreached herself' by ordering the first respondents to continue occupying the appellant's land without the appellant's agreement or acquiescence, directly contradicting the appellant's legal rights to the land.