By Dickson Jere
An investor was issued with Certificate of Title on land that appeared to be Silembo village in Kazungula area of Southern Province. One of the affected villagers – headman Silembo – claimed his family had settled on the same land since 1958 after his father was given the land by Chief Musokotwane.
However, the investor appeared and asked the villagers to vacate the 250 hectares of land as he had obtained title of the same in 2015 for agricultural purposes.
After failing to resolve the dispute with the Royal Establishment, headman Silembo sued the investor in the High Court where he contended that he and other villagers were not consulted when the land was converted from customary to state land.
Simply, he argued that the process of obtaining title of the land was improperly done by the investor as he and other stakeholders did not partake in the approvals.
Having heard both sides, the Judge ruled in favour of the investor saying he had followed the laid down procedures when he obtained the certificate of title and that the Chiefs representative and the local authority had approved the application.
Dissatisfied, the headman appealed to the Court of Appeal, arguing that the title was dubiously given especially that there was no substantive Chief (died) at the time of approving the conversion.
A panel of three judges dealt with the case.
Firstly, the Court explained that villagers have a right to be heard on matters of land that they inhabit before it can be given to anyone on title.
“The interests of such people cannot simply be brushed aside by the headmen and chiefs, they must be given an opportunity to be heard and a clear decision must be made and communicated to all parties involved in such a dispute,” the Judges ordered.
Secondly, the Court said the evidence on record showed that the conversion of customary land was not done properly and there was no record to show that Kazungula District Council met and approved the conversion.
“We hold the opinion that on a preponderance of probability, no site visit was ever carried out by Kazungula District Council and if it was, no site visit report was ever presented to the full Council,” the Judges noted.
“These are matters of law which the Respondent (investor) should have been able to establish with due diligence,” the Judges said, and adding that the investor did not acquire clean title.
The Court ordered the Commissioner of Lands to cancel the Certificate of Title and that the headman should also be paid costs for the legal action.
“We find there was indeed impropriety in the manner in which the disputed land was allocated and leasehold title issued to the Respondent,” the Court held.
The Court guided that the Chief must sign the letter as well as full Council meet and discuss the conversion of customary land but only after they have conducted a site visit to check that no villagers will be displaced.
Case Citation – Duncan Silembo v Roman Shaloomov / Sekelelea Farm (Appeal No. 44/2018) and Judgement delivered in June 2020.
In this case, the Court, once again emphasized on the need for legal due diligence when dealing with land issues. Had the investor followed the process, he would have discovered that the Chief did not sign himself the approvals and that there was no full Council meeting that was held by councilors.
