By Dickson Jere
The owner of the 12 hectares land in Lusaka – Airport Turnoff – discovered it had been subdivided into five plots and given to various people by the Lusaka City Council (LCC) working with the Ministry of Lands. Those who were given the plots immediately sold to a third party who setup Lake Petroleum Filling Station.
Even though the original owner had title with caretaker’s house, his land was taken away and given to others. Simply, the Commissioner of Lands gave out title deeds on land already on title.
The owner took out legal action in Lusaka High Court against the Council, Ministry of Lands and those who were given the subdivided plots. He argued that the newly created plots were illegal as they were given on his land, which even had a wall fence and caretakers house.
After hearing both sides, the Judge ruled that the subdivided plots were illegal and fraudulently created by the Council and Ministry of Lands. She ordered that the new titles be canceled and the original owner takes back his land.
Dissatisfied, the buyer of the five newly created plots appealed to the Court of Appeal, arguing that it bought the land on open market after conducting a search at the Ministry of Lands and Council and there was no encumbrances.
Simply, it was a “bonafide purchaser for value without notice” as it did not know the criminality involved and only paid the actual price to the sellers.
The Court was informed that “Mohammed Nasir” is one who informed the buyer of the availability of five plots that were available for sale by all the owners.
A panel of three Judges looked at the case and determined thus;
“The presence of a wall fence and a caretakers house should have raised questions about the ownership and boundaries of the land,” the Judges noted.
“Further, the appellant should have enquired as to who the owner of the caretaker’s house was,” the Judges said, adding that the buyer has “constructive notice” that someone had an interest in the land before them.
The Court noted that even though the buyer conducted a search at both the Ministry of Lands and Council, which showed that the land was clean, it nevertheless did not complete the due-diligence.
“The illegality surrounding the creation of the subdivisions invalidates the appellants title to the property,” the Court ruled and ordered that the original owners takes back his entire land.
“In sum, while the appellant conducted some inquiries, its failure to take heed of the conspicuous red flags undermines its claim,” the Court said, while acknowledging that the buyer spent money on it.
However, since it did not do thorough investigations, it lost the land as one cannot obtain good title from an illegality.
“In light of the foregoing, we hold that the appellants failure to engage a surveyor or to make further inquiries constitutes negligence and constructive notice of the Respondents ownership of the land,” the Judges concluded.
Case citation – African Trading Limited v M.M Integrated Steel Mills Limited – Appeal No 48/2023 and Judgment delivered five months ago.
Lecturer Notes;
1. As can be seen from this case, the rot starts at the Ministry of Lands and the Council. How did they subdivide land belonging to someone and on title and still went ahead and issued new titles to others. This is why we opposed Bill 13. Imagine if the Court was not involved from the word go? This land would have been gone!
2. The Court also makes important point here that do not just pay for land without doing verification. This includes proper investigations and due diligence before you pay as the law will not protect you if there was a fraud involved. Take your time with land transactions.
