Baobab Land case outcome creates uncertainty for Zambian landowners

Baobab Land case outcome creates uncertainty for Zambian landowners

By Mwebe Mbewa

At the heart of an application for leave to appeal to the Supreme Court by the owner of Baobab Land, Jonathan Van Blerk, there is one key question. How is it that the very feature which raised a point of law of public importance has not found expression in the reasoning of both the High Court and the Court of Appeal judgments?

What are the elements of the point of law of public importance which the Baobab Land case has raised?

The first, which has been stated several times in reviewing the long drawn out litigation concerning Baobab Land in Lusaka, is that there are matters which go beyond the specific facts relating to this case, and would affect any citizen of Zambia or investor who holds land.

The current state of outcomes bring a foreboding that any citizen or investor, whose land holding becomes subject of exercise of the State’s powers to compulsorily acquire land for public purposes, can fall victim of a process in which the reasons the Attorney General advances for this action at the instance of acquisition can be varied, in violation of the enabling legislation, and the Courts would be powerless to protect their interests.

This sounds like a scary prospect. But it is exactly what has resulted from the uncertainty created by the Lusaka High Court, supported by the Court of Appeal. It appears the High Court and Court of Appeal have refused to note, and consider seriously, that if the Attorney General submitted in court that part of Van Blerk’s land was compulsorily acquired to be given to the Lusaka City Council to build houses and demarcate plots for civil servants and other residents, but later, after defeating the land owner’s challenge in court, proceeded to give the same land to private companies for their profit, this constituted some deviation from the public purpose justification accepted by the court.

The courts have acknowledged that it was the discovery that the land compulsorily acquired from him was several years later given to Bantu Capital Corporation owned by Mohamad Salama, and Kwikbuild Construction Limited linked to the Mahtani Group of companies, which forced Van Blerk to conclude that the Attorney General’s justification of giving the land to  the LCC was a fraudulent misrepresentation to simply defeat his challenge of the State’s action in court.

Hence Van Blerk has been fighting to overturn the judgments which went against him on grounds that they were obtained by fraudulent misrepresentation. Why? Because for him, giving his compulsorily acquired land to private companies instead of the LCC rendered the Attorney General’s justification a fraudulent misrepresentation.

But High Court Judge Sharon Newa refused to accept this, ruling that Van Blerk has not proved fraud existed at the time of the compulsory acquisition. The Court of Appeal agreed with Judge Newa that Van Blerk needed to prove fraud existed at the instance of the submission to court that the land was for public purpose of LCC building houses and giving plots to civil servants and other residents.
Which is a very strange demand to make of Van Blerk, since it only became apparent after several years that the Attorney General had given the land to private companies for their own profit.

How then can he prove fraud which became apparent, for example, in 2006, when his court challenge of the compulsory acquisition of part of his land took place several years earlier?

The problem or uncertainty created by these two judgments is major, especially when seen in the light of what the Supreme Court of Zambia said in its Judgment of Van Blerks appeal two years ago:

“We must at this point state  that if property is compulsorily acquired for 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.”

What the Apex Court was pointing out implies that compulsory acquisition can be justified as being for a public purpose, but it later turns out that this is not the case. Inversion of this point gives further elaboration; what the State ultimately does with land it has acquired compulsorily from a private citizen will sometimes give a more accurate determination of whether the public use justification it has submitted is true or not.

The question then is why did the High Court, and later the Court of Appeal, take such a narrow view of proving fraud or misrepresentation in this instance, despite the guidance given the Supreme Court, in this same case?

This is what has brought about uncertainty. How are the rest of Zambian citizens to feel protected if the State can justify compulsory acquisition of their land, or portions thereof, on grounds of public use, and get away with parceling out the same compulsorily acquired land to private companies for one reason or another?

The final outcome of this case therefore has public importance beyond the interests of Van Blerk. It will clarify the issue as regards protection of citizens against arbitrary use of this draconian power by the State to compulsorily acquire land held by citizens or even investors.

Leaving the matter where it is, after High Court Judge Newa and the Court of Appeal judgments would create a permanent window for potential abuse of this power simply because fraudulent misrepresentation which becomes apparent after passage of time, whether there was a court challenge or not, does not matter.

That is no comfort to all Zambian landowners.

Assuredly, this point of law has arisen in the courts below as a result of the determinations they have made, by their insistence that Van Blerk should prove fraud at the instance of Attorney General’s witness Fortune Kachamba’s evidence in court, before the Attorney General decided to replace the LCC with private companies.

At that point Van Blerk had no suspicions and simply accepted the public purpose justification, as did the High Court which tried his challenge of the compulsory acquisition of part of his Farm 4300, known as Baobab Land.

In actual fact, it could be that the true intent of the Attorney General may be inferred more accurately from the ultimate decision to give land compulsorily acquired for public purpose, to private companies for their own profit.
If this point of law is left without clarification, all Zambian landowners will remain exposed to potential abusive use of this power, which could eventually hobble the country’s land tenure system and become a disincentive to attracting both local and foreign investment.

But beyond the point of law of public importance discussed, the two judgments also do not seem to have held the Attorney General to a very high standard of adherence to provisions of Lands Acquisition Act 1970, particularly clauses which exist to ensure compulsory acquisition id deemed to be in line with the legal provisions.

Simple questions were not asked. Such as, when the Attorney General decided to divert the compulsorily acquired land from the LCC to Bantu Corporation and Kwikbuild Construction, was this a change of purpose from public to  private, in the light of what the law defines as “public purpose or use”?

Did the purpose remain the same, but the State only changed the mode of execution of that purpose from LCC to  the private company “conduits”?

But this would raise another question, which the Supreme Court, sitting Justices Mumba Malila, Jane Kabuka and Albert Wood, did during earlier hearing of Van Blerks appeal.

One of them asked a representative from the Attorney General’s chamber what criteria was used to pick the private companies to execute the project for the State, and why the original owner of the land was excluded from participating in executing the “public purpose”.

It is not surpring therefore that Van Blerk’s Intended Ground One of appeal, should the Court grant him leave, is that “The Court of Appeal erred in law and fact when it held that allocation of land to private entities does not per se prove that Fortune Kachamba made fraudulent misrepresentation under the circumstances of this particular case when in fact the peculiar circumstances of this reveal that such allocation is evidence of fraudulent misrepresentation for being contrary to the interest of the Republic or public purpose for which the land was compulsorily acquired as envisaged in sections 3,5 and 6 of the Lands Acquisition Act, 1971, Chapter 189 of the Laws of Zambia.”

Intended Ground Two targets mention that the Court of Appeal made of the issue of compensation:

“The Court of Appeal erred in law and in fact when it held that if at all there was any fraudulent misrepresentation made by Fortune Kachamba the 1st Respondent’s witness, the appellant did not rely on it to his detriment because he was compensated for the acquisition when in fact it is detrimental to the legal owner of private land that has been compulsorily acquired when the interest of the Republic or public purpose for which the said land was acquired is deviated from by the 1st Respondent later allocating the said land to private entities or companies for their benefit, contrary to the provisions of sections 3, 5, and 6 of the Lands Acquisition Act, 1971, Chapter 189 of the Laws of Zambia”.

It sounds like the Court of Appeal was suggesting here that whether or not there was fraudulent misrepresentation by Fortune Kachamba, it did not work to the detriment of Van Blerk because he was compensated.

This seems tangential and unfortunate coming from the Court of Appeal. The issue of compensation was dealt with by the Supreme Court Judgment of 17th May, 2021:

“In our estimation, there is therefore 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.”

Did the Court of Appeal simply not attempt to fudge the issue by resurrecting the issue of compensation, in the manner they linked it to Kachamba’s evidence and thereby concluding that Van Blerk did not rely on it to his detriment?

Quite unsurprisingly, the appellant believes that apart from raising a point of law of public importance, also raises issues whose determination will transcend the circumstances of this case. The appellant states that there are reasonable prospects of his appeal succeeding because of the conflicting statements of the law made in the judgment of the Court of Appeal.

“The draft ground of appeal exhibited support our submissions as the said grounds all turn on the point of law of public importance, that is, the exercise of the power of eminent domain as prescribed in sections 5 and 6 of the Lands Acquisition Act.”

“We further submit that there are other compelling reasons to hear the appeal particularly that the appeal raises valid points of consideration that are novel and for the public good. For the foregoing, we submit that there are cardinal issues of law or jurisprudence that deserve further input from the Supreme Court. It is in this respect that we humbly urge the Court to grant the Applicant leave to appeal to the Supreme Court against the whole of the judgment of the Court dated 30th July, 2024.”