GUEST ARTICLE: Re-Start Mumbwa Land Dispute Case – Court
By Dickson Jere
Mr Muhammed Ayaz Khan and his wife Pakizah Khan were looking for land in Mumbwa area. So, the headman with the approval of Chief Shakumbila, gave them traditional land. They then proceeded to obtain consent from Mumbwa District Council to convert the same land from customary to state land. Thereafter, they submitted the papers to the Ministry of Lands and the Commissioner of Lands went ahead and processed title deeds in the name of the wife Pakizah Khan.
When the two true to develop the land, they found villagers living on the same land who insisted they have been there since time immemorial. The new owners of land decided to sue in the High Court, demanding that the villagers whom they described as squatters should be evicted.
But the villagers raised an interesting point in Court. They contended that the disputed land was not in Mumbwa but Chilanga District. They also argued that the area was under Chieftainess Nkomeshya Mukamambo II and not Chief Shakumbila of Mumbwa.
So, the High Court Judge, after hearing both sides opined that the dispute was not about who owned the land but whether procedures and law was followed when the land was changed from customary to state land.
“The Judge found that documentary evidence exhibited by the Respondents clearly placed a larger portion of the land in Chilanga,” the Judgment read.
“Thus, the Mumbwa District Council had no jurisdiction to deal with it,” the Judge said.
The Court observed that the allocation of land overlapping two different chiefdoms was done by mistake, adding that the traditional authority in Chief Shakumbila may not be conversant with its boundaries.
“Finally, the Commissioner of Lands also failed to verify the boundaries,” the Court said, adding that the land belonged to Chief Nkomeshya who did not approve the conversion of land.
The Court then ordered the cancellation of the title deeds issued to the Khans.
Disappointed, the Khans appealed to the Court of Appeal, arguing that the High Court erred when it ordered the cancellation of title and that the matter before Court was for “summary proceedings ” of land and not ownership.
It was also contended that both parties relied on the affidavit evidence instead of being heard and cross examined by way of trial to establish the actual truth of the matter.
A panel of three Judges heard the appeal and ordered tat the case be sent back to the High Court and be heard again with witnesses called to testify as opposed to affidavit evidence.
“The Judge should have received evidence from the Surveyor General among others, which would have helped to resolve the boundary dispute,” the Court said.
“We remit the matter back to the Hugh Court for trial to be conducted in open Court before another Judge,” the Court ruled.
Case citation – Mohammed Ayaz Kgan v 5 Squatters – Appeal No. 59/2017.
Lecture Notes;
1. The Court of Appeal was right to remit the case to High Court. When there are contentious issues, the best way of resolving the matter is through trial and calling witnesses as opposed to rendering Judgement based on affidavits (written documents) without seeing and hearing the witnesses in person.
2. As you can see, the Commissioner of Lands issued title deeds without verifying what was on the ground. This could have been avoided if the Commissioner of Lands demanded for the verification Survey Report from next door – Surveyor General Office.
3. There is need to map the country and have clear demarcation of boundaries for districts and chiefdoms in Zambia. The Nkomeshya and Shakumbila boundary dispute has been going on for years! Others argue that the boundary is actual Mwembeshi River.