360 FARMERS WIN CASE

…Court allows sale to squatters

MORE than 360 farmers have been saved from losing their investment in the land they had occupied for more than 20 years, after the Court of Appeal allowed them to buy their plots from the original owners by upholding a consent judgement.

The Court of Appeal has ordered that the consent judgement entered between Lusaka lawyer Germano Kaulungombe and Elizabeth Catherine Cooke and on behalf of 360 farmers of Lusaka west for the purchase of land should be executed as the farmers risk losing their investment built from 27 years ago.

Court of Appeal judges Judy Mulongiti, Florence Lengalenga and Dominic Sichinga directed that the 360 farmers should be allowed to purchase the land in question from the title deed holders for a fee to be agreed as the farmers are at the verge

...of losing their investment if the said consent is not executed.

This is in a matter where Osick Chilembo sued Elizabeth Catherine Cooke as the executrix and beneficiary of the estate of the late Elizabeth Catherine Swanepoel, Howard Cooke, Peter Swanepoel, Hugo Jacobs the attorney general and Kafue district council seeking a stay and to set aside the consent judgement dated February 19, 2020 for irregularity and fraud.

The appellants formed two groups, one group led by Chilembo and 25 others seeking a stay of the consent judgement and the other group comprised of more than 300 appellants represented by Dr. O.M.M Banda who are opposing the application and are represented by Lusaka lawyer Germano Kaulungombe. We note that Order 59/9/13 on stay of execution of judge is clear that the application should be made in the High court in the first instance. The judgement being sought to be stayed is not the High court judgement which was subject of the withdrawn appeal, but the consent judgement which was executed in the court of appeal.

Elizabeth Catherine Cook and three others had sued Chilembo and more than 300 others in the Lusaka High court for illegally occupying their land.

The High court upon being satisfied that Cook and others had proved on a balance of probabilities that they were lawful holders of certificates of title to the said farms the illegal occupants were ordered to vacate the said farms and to pay damages for trespass.

Dissatisfied with the judgement of the High court the squatters appealed the said decision to the Court of Appeal attacking the findings of the judge in favor of the complainants.

However, on February 19, 2020 the parties executed a consent judgement where it was agreed that the owners of the farms in question would give the squatters an option to purchase the pieces of land subject to them paying costs and damages awarded to them (land owners) and the said judgement was signed by a panel of three judges of the Court of Appeal.

Chilembo and others filed an application to stay the execution of the consent judgement and to set it aside and stressed that if the same was not granted Cook and three others would enforce the judgement and render the appeal academic.

Chilembo alleged that following the judgement of the High court Kaulungombe wrote a letter to their advocates threatening to demolish all the properties on farms 394a/A, 738 and 1958 but a print out from the ministry of Lands reveals that farm no.1958 was confiscated by government.

He further alleged that Kaulungombe asked some of the appellants to pay him K17,000 each as damages and costs when the matter is still in court. Chilembo also prayed that Kaulungombe be restrained from asking for money from them.

Chilembo and others further sued Kaulungombe in the High court claiming that he fraudulently signed a consent judgement on their behalf without their authority.

But on May 6, 2020 Chairman and Secretary of the Lusaka west community exonerated Kaulungombe stating that the consent judgement was not fraudulently signed as they instructed him to do so on their behalf.

During hearing, lawyer representing Cook and others argued that a consent judgement being a final judgement cannot be stayed.

He said since the action was against Kaulungombe and not the owners of the land there is no ground on which the court could stay the execution of the consent judgement.

In their ruling , the court said that it is trite law that a consent judgement can only be set side by commencement of a fresh action as this can only be done in the lower courts which conduct trials unlike the appellate courts.

“We note that Order 59/9/13 on stay of execution of judge is clear that the application should be made in the High court in the first instance. The judgement being sought to be stayed is not the High court judgement which was subject of the withdrawn appeal, but the consent judgement which was executed in the court of appeal,” the court said

It ruled that it was inclined to grant the stay pending determination of the fresh action in the High court but since the 300 plus appellants oppose the grant of the stay and have averted that they instr the stay of the consent judgement should be for the benefit of Chilembo and 25 others.

The court said that part of the land subject of the consent judgement affecting the 300 plus should be executed as consented while the other involving Chilembo and 25 others be stayed as prayed.