By Dickson Jere
Moses Mwala Makokwa – an old man – died many years ago leaving a house in Olympia. A tenant, a lady, occupied the house and was later joined by another man. This man decided to call himself as “Moses Mwala Makokwa” and thereafter forged the NRC and Certificate of Title under that name. He then sold the house to an innocent purchaser who believed he was buying the house from the owner going by the documents. However, the actual owner had been dead for over 16 years!
The owners of the house – administrators of the actual Moses Mwala Makokwa showed up and demanded for the house. The dispute ended up in High Court. The purchaser argued that he had done his search at the Ministry of Lands and found that the title register was clean and that he visited the house where he found Moses Mwala Makokwa who claimed to be the owner.
In short, he did, what a prudent buyer is required to do – the due diligence – and thereafter purchased the house.
In delivering judgement, the High Court ruled that the innocent purchaser bought the house on open market without any notice of encumbrances and therefore he is now owner not withstanding that the seller was fake. This prompted the family to appeal to the Court of Appeal, which heard the matter and determined it thus:
“It is clear that the whole transaction involving the 2nd Respondent and the rogue and vagabond Mwala was tainted with deception from word go,” the Judges observed.
“By the same token, the 2nd Respondent could not have acquired good title from someone who had none to pass on,” the panel of three Judges said.
They observed that when the purchaser went to change ownership at the Ministry of Lands, he was alerted that the certificate of title was a forgery. However, the buyer went ahead and advertised in the newspaper for a duplicate title even when it knew that the seller had presented fake title.
“The advertising for a duplicate certificate of title did not in our view regularize a forged certificate of title into a genuine document,” the Court said.
“Consequently, even if due diligence was undertaken, and no encumbrances found on the property, it did nit mean that the transaction that finally resulted in the new certificate of title to the 2nd Respondent was valid,” the Judges said.
The Court ordered the reversal of the transaction and gave it back to the estate of the actual late Moses Mwala Makokwa.
“The sale of the property to the 2nd Respondent by the ‘rogue and vagabond’ Mwala is reversed and the certificate of title issued cancelled…and the property reverts to the estate of the late Moses Mwala Makokwa,” the Court concluded and ordered costs.
Case citation – AMG Global Trust Limited v Administrator General and Caladams Properties Limited – Appeal Number 25/2020.
Always verify the NRCs and Certificate of Title before transaction on land issues. Too many rogues and vagabond on the loose.
