Supreme court rules out time bar in fraudulent acquisition of land
AFTER 33 years of litigation, Supreme Court has ruled that a matter involving fraud and misrepresentation cannot be statute or time barred.
AFTER 33 years of litigation, Supreme Court has ruled that a matter involving fraud and misrepresentation cannot be statute or time barred.
The courts rule is that fraud unravels all…once fraud is proved, ‘it vitiates judgements, contracts and all transactions.
This is in a matter where Lusaka farmer Jonathan Van Blerk appealed against the Lusaka High Court’s decision to dismiss the case where he sued the State and five others for compulsory acquisition of a portion of f Baobab land which covers an extent of 557.8759 hectares which he used for agricultural purposes.
The Court has therefore set aside judgements passed in the matter. The matter has been through several high Court, Court of Appeal and Supreme Court actions where it was dismissed.
The Supreme Court ruled that numerous authorities show that judgement obtained by fraud or fraudulent misrepresentation can be set aside and that res judicata in such instances is not a defense and that the action was not time barred based on the documentary evidence. Arguments on these fairly straight forward legal issues expend unnecessary time, costs and energy.
“For the reasons we have given above, we allow the appeal and order that the matter should be remitted to the High Court where it will take its normal course. We however, express the hope that the High Court judge who will be allocated this matter will deal with it expeditiously. Costs to abide the outcome in the court of below,” the court adjudicated.
The Court has ordered that the matter be heard and determined in the High Court expeditiously Mr Van Blerk had appealed against the ruling of Justice G.S Phiri who dismissed the case with the view that the compulsorily acquisition had been undertaken by the State for legitimate public purpose.
He however argued that that the State deviated from its intended purpose and leased the land to private entities for other uses.
He appealed to the Supreme Court who upheld the judgement.
He cited the Attorney General, Lusaka City Council (KCC) and Legacy Holdings limited as first, second and third respondents.
Kwikbuild Construction limited , Bantu Capital Corporation limited and National Pension Scheme Authority (NAPSA) are fourth, fifth and sixth respondents in the matter.
In April,1987, pursuant to section 3 of the Lands Acquisition Act 1970, chapter 199,volume 12 of the Laws of Zambia, the State compulsorily acquired a portion of his land in extent of 351.2142 hectares to use it for a public purpose , namely construction of a housing complex on part of the land to alleviate a housing shortage in Lusaka, while part of it was to be demarcated and allocated to public service workers who need residential plots
The Supreme court in a judgement delivered by Justice Albert Wood on behalf of other two judges Dr Mumba Malila and Ms Jane Kabukaon May 17, 2021 said they were not in agreement with the respondents arguments that the matter was statute barred as it started back in 1987 and that the action to set aside judgement was only commenced in 2017.
“We do not accept that the claim is time barred. We say so because time should be reckoned from which the appellant became aware that the land had been leased to third parties,” said the court.