Mahtani firm’s appeal to delay Court of Appeal ruling in Baobab Land case

Mahtani firm’s appeal to delay Court of Appeal ruling in Baobab Land case

By Mwebe Mbewa

Less than a month after missing a six-month deadline to file written arguments in the Baobab Land case, Lawyers for Mahtani-owned Kwikbuild Construction now want to appeal the decision of the Court of Appeal which refused to allow them to bring verbal submissions because this would have the effect of ambushing the appellant in that case, Jonathan Van Blerk.

By appealing the Court of Appeal ruling over their own failure to submit written Heads of Argument over a period of six months, Kwikbuild seems set to start a new process of legal technicalities to delay the pending outcome of Van Blerk’s appeal against the decision of High Court Judge Sharon Newa that he had not proved fraudulent misrepresentation in events surrounding compulsory acquisition of part of his land, Farm 4300, Lusaka, known as Baobab Land.

Simeza Sangwa and Associates, Lawyers for Kwikbuild Construction, which is known as an entity under the Mahtani Group of Companies, on 3 July, 2024 filed a Notice of Motion for an Order for leave to appeal the ruling of Appeal of 18th June, 2024, which threw out their attempt to ask to file written Heads of Arguments out of time, after squandering the scheduled 30 days, and also the five months period before the case came up in the Court of Appeal on 18 June, 2024.

An affidavit in support of this Notice of Motion, signed by Mandela Nkunika of Simeza Sangwa and Associates, recounts that on 18th June, 2024, Van Blerk’s lawyers raised issues including that Kwikbuild, not having filed Heads of Arguments, should not be allowed to participate in the appeal currently before the Court of Appeal.
“That the Court proceeded to deliver an Extempore Ruling wherein it agreed with the First Respondent (Van Blerk) that the Applicant (Kwikbuild) would not participate in the appeal…That the Court equally refused the Applicant (Kwikbuild) to file its application to file its extension of time and preceeded to hear the appeal”.

The Kwikbuild lawyers said their client now wants to appeal the Extempore Ruling on the grounds that the intended appeal raises a point of law of public importance and requires further arguing before the Supreme Court on whether a respondent who has not filed heads of arguments is proscribed from participating in the hearing of an appeal.

This exclusion arose at the 18 June, 2024 hearing of the Court of Appeal sitting of judges Catherine Makungu, Kelvin Muzenga and Yvonne Cheembe, during which one of Van Blerk’s Lawyers, Linus Eyaa, said his client filed Heads of Argument on 31st October, 2023, and that Kwikbuild and other respondents were due to file their own by 29th November, 2023. But the Attorney General, Kwikbuild Construction Limited, and Bantu Capital Corporation, owned by Mohamed Salama, failed to file in that period, and also in the five months up to the hearing day.

Kwikbuild and Bantu are two private companies which were allocated portions of Baobab land compulsorily acquired using the justification that it was to be given to the Lusaka City Council for it to build a housing estate complex and demarcate residential plots for civil servants and other needy residents of Lusaka. But the land was later given to these private companies for their own profit.

It was Eyaa who submitted that since these respondents had not filed their heads of arguments, the Court of Appeal should not give them audience in his client’s appeal, in line with the rules of the court.

Eyaa said Bantu Capital went to file after the 30 days, without seeking leave of the Court to file to file out of time, while Kwikbuild brought their documents to file at court on the day, intimating that they intended to file an application to file out of time. Only the National Pensions Scheme Authority (NAPSA) managed to file.

The Court of Appeal told Kwikbuild that they should have  made their formal application promptly. After submissions back and forth, the Court went into Chambers and made its Ruling after emerging.

In its Ruling, the Court of Appeal expunged from the record Bantu Capital Corporation Limited Heads of Arguments filed on 14th June, 2024, four days before hearing, and refused to allow Simeza Sangwa and Associates application to file for Kwikbuild out of time.

“As regards the submission that the respondents be allowed to make submissions Viva Voce, the effect is that this will result in ambushing the appellant and wasting of the Court’s time…We will proceed to hear the appeal,” the Court of Appeal ruled.

No doubt the Court of Appeal will have its say when it considers Kwikbuild’s Notice of Motion to appeal its own ruling to the Supreme Court. But outside court, there are some observations to be made about its context, and the conduct of the respondents over the prolonged period of litigation related to the compulsory acquisition of Baobab Land.

The first one is about the Court’s refusal to allow Kwikbuild and Bantu, the two private beneficiaries of the land the State compulsorily acquired, to file their heads of argument out of time.

Even the most charitable presiding officer in the whole judiciary would be bewildered by how these two companies, represented by State Counsels, Robert Simeza (Kwikbuild) and Sakwiba Sikota (Bantu), could neglect to file heads of arguments within the scheduled 30 days, and also in the lengthy interim between 29th November and 18th June.

Is it also not strange that apart from making their legal entreaties, the lawyers for these two companies offered no credible explanation for failure to file their clients’ heads of arguments within time. It seems logical then for the Court to have thrown out their intended applications to file out of time.

Common sense is also on the side of the Court of Appeal in its decision that allowing Kwikbuild, which failed to file written heads of arguments, to given their submissions viva voce would be ambushing the appellant, and would be a waste of the Court’s time.

The Court’s reluctance to have this respondent wasting its time should also be seen in the context of public alarm at how long this litigation has been allowed to take, and why.

The Court of Appeal must no doubt be aware of two observations made by the Supreme Court on this three-decades long delay, caused largely by the conduct of respondents, especially Kwikbuild Construction and Bantu Capital Corporation, the beneficiaries of the compulsorily acquired land.

In its Judgment of 17th May, 2021, the Supreme Court, sitting Justices Mumba Malila, Albert Wood and Jane Kabuka, stated the following:

“We should not lose sight that this matter started 33 years ago and that we do not expect litigants to have the patience of Job while waiting for their cases to move at glacial pace in our courts. In any event, public policy demands that the judicial process must be sensitive to, among other things, speed and reduced litigation costs. It is regrettable that this litigation has taken so long. While the respondents cannot be blamed for defending their clients’ rights by adopting the Stalingrad defence, they should accept some responsibility for  contributing to the uncertainty and delay in connection with this saga. They could have, for instance, realised that numerous authorities show that a judgment obtained by fraud or fraudulent misrepresentation can be set aside and that res judicata in such instances is not a defence and that the action was not time barred, on the documentary evidence. Arguments on these fairly straight forward legal issues expended unnecessary time, costs and energy.”

In plain language, what the Supreme Court said is that the respondents ignored well known authorities on several straight forward issues, and continued using making arguments on them, which simply helped to extend this litigation over 33 years.

This is why any hint that a respondent in this case is raising a tangential legal issue, over a matter caused by their own failure to submit documents on time, must be a source of alarm, not only to the Court of Appeal, but also to the appellant and citizens who have taken interest in the case because of its impact on the right to own land and other property, and the exercise of the proper use of the State’s power to compulsorily acquire land in the public interest.

That Van Blerk’s case had raised a point of law of public importance was the reason the Court of Appeal allowed it to go to the Supreme Court, leading up to the Apex Court’s judgment earlier quoted. The point is that the exercise of the State’s power of eminent domain should not to exercised willy nilly, without sound public interest or use justification, or strict compliance with legal provisions to simply deprive citizens of their land and other property.

The impact of this would extend to fettering the country’s land tenure system and create an unfavourable environment for promoting local and foreign investment in the Zambian economy.

When this case first came to the Court of Appeal, this Court exhibited its keen evaluation of facts and evidence, to the extent that the Supreme Court took special note, stating that its “record of what transpired leading up to the appeal are well captured in the Judgment of the Court of Appeal”.

It was also the Court of Appeal which first found that a judgment procured by fraud or fraudulent misrepresentation can be overturned, but this has to be done by a trial court. The Supreme Court concurred when it remitted the matter to the High Court for determination of the allegation of fraud, after making this observation:

“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 determination to be made by the High Court was therefore, since the Attorney General  submitted to court that part of Baobab Land was compulsorily acquired for Lusaka City Council to build houses and give plots to civil servants and other residents, but then later allocated the same land to private entities for their own profit, was the public use justification not an a case of fraudulent misrepresentation?

High Court Judge Sharon Newa ruled that Van Blerk had not proved fraud, apparently ignoring all the observations and findings of the Supreme Court which could have guided her to a wholesome resolution.

This is the reason Van Blerk has appealed Judge Newa’s decision in the Court of Appeal advancing six grounds.

Ground number one is that Judge Newa misdirected herself in law and fact when she held that Van Blerk had not proved that there was fraud “while glossing over the admissions by the Attorney General and the Lusaka City Council that the land in question was later allocated to private companies”.

These admissions by the 1st and 2nd respondents are key proof of the action complained of, which was contrary to their submission during Van Blerk’s initial court challenge of the compulsory acquisition of his land.


Ground number two is that the trial Judge misdirected herself in law and fact when she held that the observations made by the Supreme Court in SCZ/8/03/2020, that where property is compulsorily acquired for a public purpose, but it later turns out that it was not after all for a public purpose, that compulsory acquisition can be set aside, and the property returned to the original owner, would only have been properly advanced had, in this matter, the contention that the judgment was fraudulently obtained succeeded, and the judgments of the High Court and the Supreme Court been set aside, and trial in cause number 1997/HP/272 been reopened.

This reasoning sounded like Judge Newa was actually shirking her responsibility to make the finding which was the reason the Supreme Court remitted the case to the trial court.

Ground number three is that the trial Judge misdirected herself in law and fact when linked the fact of Van Blerk engaging the Lusaka Council, to understand why part of his land was compulsorily acquired, and the determination of whether or not Fortune Kachamba’s testimony (for Attorney General) justifying the compulsory acquisition was false or fraudulent?

Ground number four is that the trial judge misdirected herself in law and fact when she held that ‘at the time the possible actualisation of the intention of the acquisition was in the process of being carried out, it had been delayed by Jonathan Van Blerk’s failure to surrender the certificate of title for marking off?’, when the Supreme Court Judgment in cause SZC/8/03/2020, had found the following:
“The respondents have advanced a rather interesting argument bordering on the alleged delay by the appellant in surrendering his title deeds to facilitate marking off and ultimately the implementation of the 1st and 2nd respondents’ reason for compulsory acquisition of land. On the face of it this seems to be an attractive argument but it is not. Once land is compulsorily acquired, a certificate of title means very little to the title holder. The developments that occurred clearly vindicate our view in this regard. As it turned out the 1st respondent did in the end transact over the property without securing the appellant’s title deeds to facilitate marking off.”

“Thus we find incredible the suggestion by the 1st respondent that the appellant’s own conduct was responsible for paralysing the 1st respondent’s efforts to actualise its intentions as stipulated in the compulsory acquisition notice. The 1st respondent had all the provisions of the law which it could have deployed to acquire the land. In any event, as we have pointed out and the respondent’s own evidence shows, the land was eventually subdivided without the appellant surrendering his title deeds.”

Judge Newa failed to absorb and benefit from this reasoning of the Apex Court.

In ground number five, the Appellant contends that the trial judge misdirected herself in law and fact when she held that the ‘claim that Fortune Kachamba’s testimony was fraudulent cannot stand’, without taking into account the admissions by the Attorney General and the Lusaka City Council that the land in question was later, allocated to private companies.

Ground six relates to the issue of costs which the Judge ruled should go to the respondents. The Appellant contends that she misdirected herself in doing so without considering the circumstances of the case before her.

Now that this case is before the Court of Appeal, it is everyone’s hope that all these key questions will be addressed. With the Kwikbuild’s notice of motion to appeal appears like an attempt to knock the Court off its stride.

Should Kwikbuild be joined by Bantu Capital Corporation in taking this route, it will be clear that some of the legal technicalities used to prolong this case over three decades are back in earnest, and questions could arise as to whether in the minds of legal practitioners there is a confluence between legal practice and morality.

If this costly legal merry go round is allowed, Zambian courts could become an object of ridicule as institutions for dispensing justice because they will be vastly eroded of the public’s confidence.