BAOBAB LAND CASE END IN SIGHT AS COURT REJECTS NAPSA EXIT BID
By Mwebe Mbewa
Dismissal by the Lusaka High Court of an attempt by the National Pension Scheme Authority (NAPSA) to be removed from the Baobab land has paved way for opening of trial to determine whether the State used fraud to justify compulsory acquisition of the privately owned land.
The significance of the ruling by the High Court is that it has progressed the matter towards a final outcome in a case in which owner of Baobab land, Jonathan Van Blerk, has sought justice over compulsory acquisition of part of his land for more than 34 years.
During that period the case has faced hurdles erected by numerous legal technicalities raised by the State and other defendants, and has come before the Supreme Court on two occasions, where it was the subject of one of the most legally astute and stellar decision by Zambia’s Apex Court.
It was that judgment of the Supreme Court, which dispensed with all the legal technicalities that had for decades created a seemingly insurmountable barrier, and directed the case to the Lusaka High Court for the second round of determination of issue of alleged use of fraudulent misrepresentation by the State to defeat Van Blerk’s initial challenge of compulsory acquisition of part of his Farm 4300, Lusaka (Baobab Land).
But before the trial could open NAPSA applied to be removed from the case because it was not party to the initial cases (in the High Court and Supreme Court) that gave rise to the allegation of use of fraudulent misrepresentation by the State.
However Lusaka High Court judge Sharon Newa, on 7 December, 2022, dismissed with costs NAPSA’s attempt to be removed from the Baobab land case, thus allowing the case to finally determine whether the State used fraud to justify compulsory acquisition of privately owned land.
In her ruling, judge Newa said NAPSA’s application to be removed from the trial (misjoinder) had failed because the plaintiff, Van Blerk, had succeeded in demonstrating that since the pension scheme had 13 plots of Baobab land, it would be affected by the outcome of this case.
Judge Newa also observed that, in fact, NAPSA itself had stated that it first applied to join the proceedings in the Supreme Court during the Baobab case appeal because it had an interest in the land and would have been affected by the decision of the Supreme Court.
She also noted that there were also orders that had been made in this matter, such as the order of injunction by the Supreme Court that restrained NAPSA from carrying out any work on the 13 plots until final outcome of the case.
“I am aware that fraud in the procurement of judgments is what is in issue in this action, but I am also aware that in determining that question, a balance must be struck in relation to the status of the properties which are subject of the land in order that the proceedings are not rendered academic,” judge Newa said in her ruling.
Quoting Order 18/19/6 of the Rules of the Supreme Court of England to explain the effect of rules when a party applies to strike out the proceedings, judge Newa said: “It is only in plain and obvious cases that recourse should be had to the summary process under this Rule.
It cannot be exercised by a minute and protracted examination of the documents and facts of the case, order to see whether the Plaintiff really has a cause of action.”
NAPSA filed the application to exit the current High Court proceedings on September 1, 2022, when director of investments Mwewa Kyamulanda told the court that his institution’s advocates had communicated that Van Blerk’s submissions had not established a cause of action against pension scheme.
And that Van Blerk’s claim was in regard to fraud by the Attorney General and the Lusaka City Council, in the way they procured the judgments now in question.
NAPSA’s argument to support its application to exit proceedings was that there was nothing in the question of fraud in obtaining the judgment that concerned with it because it was not a party to the proceedings that led to procurement of the judgments in issue.
“Thus the prayer is that the action be dismissed against the 6th Defendant (NAPSA)”.
The plaintiff, Van Blerk, in opposing the application, deposed that the sixth defendant’s reference to the specific paragraphs of his claim was actually an admission that there was a cause of action and that NAPSA would be affected by the outcome of these proceedings.
He also deposed that the portions of his statement of claim referred to disclosed all the three elements of a cause of action which are necessary for a plaintiff to prove violation of his rights to a portion of Farm 4300, Lusaka (Baobab land) by the sixth defendant, NAPSA.
Van Blerk also deposed that: “…the root of subdivisions 1 – 13 is F/4300/B of which the parent F/4300 is the land that is subject of the impugned judgments in these proceedings.”
“The averment is further that the 6th Defendant admits that it holds certificates of title for subdivisions 1-13 of Farm 4300 which is subject of an Order of Injunction which was granted by the Supreme Court against the 6th Defendant on 21st July, 2021, …which reveals that there is a cause of action against the 6th Defendant,” judge Newa’s ruling observed.
During hearing, State Counsel Elijah Banda, in making the application for NAPSA, submitted, among other things, that the sixth defendant did not dispute owning properties as alleged, but that this did not absolve the plaintiff from establishing a cause of action against it.
In opposing the application, counsel for the plaintiff, Shadreck Mbewe, submitted that they had in the skeleton arguments demonstrated that the pleadings established a cause of action against the sixth defendant, and his prayer was that the application be dismissed.
In making her ruling, judge Newa said the circumstances of this case must not be glossed over, as they were peculiar in that it was on record that the Plaintiff sued the 1st Defendant (Attorney General) following partial compulsory acquisition of his property Farm 4300, challenging the compulsory acquisition.
Judgments were obtained in both the High Court and the Supreme Court in favour of the compulsory acquisition, but years later, in 2017, the plaintiff commenced the current proceedings, alleging that the judgments were procured by fraud.
“While it may be argued that the pleadings do not reveal what role the 6th Defendant played in the fraudulent procurement of the judgments, the Plaintiff has demonstrated that the 6th Defendant, being the holder of some subdivisions of the land in issue, may be affected by the decision of this Court.”
She noted that, in fact, the sixth defendant itself (NAPSA), in an affidavit in support, as well as in the skeleton arguments in support, stated that it joined the proceedings in the Supreme Court as it had an interest in the land, and would have been affected by the decision of the Supreme Court.
She also noted that the orders made in this matter entailed that parties before her court may be affected by the outcome of the suit, and that Order 14, Rule 5 of the High Court empowered the court to be joined or maintained as parties to a suit, all persons who may be entitled to, or claim some share or interest in the subject matter of the suit, or who may likely be affected by the result.
“In this case, looking at the surrounding circumstances, it cannot be said that it is a plain and obvious one, where there is no cause of action that is disclosed against the 6th Defendant. Therefore, I decline to grant the application, and dismiss it with costs in the cause.”
The Supreme Court judgment that ruled in favour of Van Blerk’s appeal, before referring this case to its current round in jNewa’s court, dealt with all the key questions raised over the three decades.
The first one was whether the finality of litigation envisaged by section 14(1) of the Lands Acquisition Act, 1970, meant that Van Blerk could not pursue his allegation of fraud against the State in the compulsory acquisition of part of his land simply because an aspect of his case had already been to the Supreme Court. The Supreme Court said Section 14(1), while making court decisions final and conclusive, did not exclude setting aside judgments obtained by fraudulent misrepresentation.
Two other issues of serious contention in the appeal before the Supreme Court concerned arguments by Van Blerk’s opponents that his matter was res judicata (had already been determined by court jurisdictions before) and that it was defeated by the Limitation of Actions Act.
The Supreme Court said in its May 2020 judgment:
“We, however, are of the considered view that the respondents are missing the point when they argue that this matter is res judicata. The issue that the appellant is seeking to determine is whether or not the 1st and 2nd respondents obtained the earlier judgments by fraudulently misrepresenting that the compulsory acquisition was done in the public interest and for benefit of the public when in fact not. This claim was of course not in issue in the earlier proceedings.”
The court also said that the respondents’ argument that Mr Van Blerks’ claim was statute barred by the Limitation of Actions Act of 1939 was misplaced.
“In our considered view, nothing could be further from the truth. While we accept that the history of the present appeal can be traced back to 1987, and that the action to set aside the judgment was only commenced in 2017, we do not accept that the claim is time barred. We say so because time should be reckoned from when the appellant became aware that the land had been leased to third parties.”
But perhaps there were two most significant findings by the Court, in relation to the final outcome of this case. The first one was its position on reverting compulsorily acquired land to original owners, under certain conditions.
“We must at this point state that if property is compulsorily acquired for a public purpose and it later turns out that it was not after all for a public purpose, that compulsory acquisition can be set aside and the property restored to the original owner.”
The court said further that, in its estimation, there was ample authority that land can, subject to certain conditions such as paying back the money which was paid as compensation, be restored to the original owner.
The importance of this finding is that it goes to the very core of what is in issue in the current case before judge Newa, since the allegation of fraudulent misrepresentation has to do with whether compulsorily acquiring part of Van Blerk’s land was used for the use purported by the State in the justification for the action during the initial court challenge.
The second issue was the finding relating to the status of judgments procured by fraud. The Supreme Court observed in its judgment that a judgment obtained through fraudulent misrepresentation was liable to be set aside.
This means that if judge Newa determines that, based on the evidence gathered during this trial, the State used fraudulent misrepresentation to defeat Van Blerk’s challenge; the judgments obtained in its favour will be set aside, and the Baobab land owner’s challenge of the compulsory acquisition of part of his land will succeed.
The long and short of this is that a determination that the first and second defendant (Attorney General and Lusaka City Council) used fraudulent misrepresentation to defeat Van Blerk’s challenge of compulsory acquisition of part of his land can result in a final outcome of this three-decade-long search for justice.
The Supreme Court, having dispensed with all the peripheral issues relating to this case, the country, and the Apex Court itself, will be looking keenly at the trial before judge Newa, especially its final outcome.
The Mast