GUEST ARTICLE: Registrar Cannot Cancel Title – Court
By Dickson Jere
It so happens – sometimes – that the Certificate of Title given to you may contain some errors omissions or mistakes. These may be misspelled names or plot number or indeed wrong plot size from the actual one on the ground. The law – Section 11 of Lands and Deeds Act – allows the Registrar at the Ministry of Lands to correct such mistakes. No big deal. And they have in the past corrected such errors without much ado.
But then, what about canceling the Certificate of Title if it was issued by mistake or error? Or indeed if two people were fighting over the same piece of land? Can the Registrar cancel the Title?
That was question before the Supreme Court in the case of Corpus Legal Practitioners v Mwanandani Holding Limited -SCZ Judgment No. 50 of 2014. A panel of three Judges opined thus:
“The Registrar of Lands and Deeds under section 11 does not empower him to determine disputes which have the effect of determining the rights of the parties to any land or to cancel a certificate of Title duly issued to the registered proprietor of the land to which it relates,” the Court said.
This position has been applied in many subsequent cases that the superior Courts have handled thus far on this subject matter.
The rationale is simple.
One person – Registrar or Commissioner of Lands – cannot sit in his office at the Ministry of Lands and start canceling Titles without the Court. The law envisages that only a Court of Law has powers to cancel Titles following a full hearing where all the contestants are heard.
And Title can only be cancelled on two reasons only. One if the Title was issued by fraud or secondly by mistake. In other words, Certificate of Title is conclusive ownership of land in Zambia and only the Court can take away such right.
“We further take the view that a person alleging fraud or any other impropriety with regard to the issuance of a Certificate of Title, must challenge the same through a Court action and prove the allegations of fraud or other impropriety, as the case maybe,” the Judges said.
So, the Registrar, can only cancel the Title based on Court Order after parties to the dispute have been heard by the Court and an Order given for cancellation. It is a good safeguard to property rights and land ownership.
Lecture Notes;
- The government has announce that it will amend the Lands and Deeds Act this year to give powers to the Registrar to cancel Certificate of Titles. This amendment goes against these Court cases that provided a safeguard that only Courts can cancel Certificate of Title. I feel the amendment will bring more problems and disputes. I oppose the amendment but then I am not Member of Parliament yet.
- Our civil service is totally compromised and polarized. To give powers to one person – Registrar – to cancel titles will bring more problems. The current procedures where the Courts are only ones with power to cancel Titles have served us well thus far. If it ain’t broke, don’t fix it!
But the former commissioner of lands cancelled the title to the Zambia army land in woodlands and gifted it to the PF…
Mr Jere however maybe you can further comment of the suggested amendement of the law to allow the Registrar to cancell a certificate of title and the ensuing confusion that may occur.
Yes we are aware of a number of cadre driven cases of ffraudulent titles that have been issues as the Minister of Lands suggests in her recent presser. But as you rightly state those need due process through which those titles should be cancelled. You can not give authority in the law to the same person who issued the to cancel the certificate of title.
Let an independent arm of the state the circumstance see it fit to reverse the cancellation of title.
Further these digital titles can be circulated so easily. What security does the public have that criminals that can obtain certificates of title from people can not reproduce digital certificates of title from someone the same institution fraudulently? Only a few months ago it was reported that the entire system had “crashed” and data was lost. What trust does the public have in such a system that was “bull dozed” by Muchima? Clearly there was no clear thought that was put into the changes and the suggested changes in the proposed bill giving authority to the Registrar of Lands the authority to cancel title equally has not been thought through.