THE Lusaka High Court has thrown out a case in which two individuals were challenging UPND president Hakainde Hichilema’s acquisition and possession of a farm in Kalomo District on account of too much time having lapsed since the alleged incident happened back in 2005.
Lusaka High Court Judge Catherine Lombe Phiri dismissed the case for being statute-barred as the alleged incident occurred 15 years ago.
In this matter, an administrator of the estate of the late Samson Siatembo and another sued Hichilema for allegedly acquiring and procuring a farm in Kalomo illegally, fraudulently or without consent of the administrator on behalf of the estate of the deceased.
Pheluna Hatwimbo, suing as administrator of the estate of the late Samson Siatembo and Milton Hatembo, were seeking an order that assignment of Subdivision A of Farm No.1924 be reversed on account of fraud or misrepresentation as well as an order for damages for trespass to land without consent or license of the plaintiffs.
The plaintiffs also wanted cancellation of certificate of title No. 42578 on account of fraud, misrepresentation and or mistake, among others.
Last year, Hichilema asked the Court to dismiss the case on points of law, arguing that Subdivision “A” of Farm 1924, Kalomo was created, surveyed, marked off (from the parent Farm 1924, Kalomo) and assigned to him in 2005.
He added that he was registered as a proprietor of the said Subdivision “A” of 1924, Kalomo, measuring 2222.6549 hectares and a certificate of title was issued to him by the Registrar of Lands and Deeds on September 22, 2005.
Hichilema further submitted that since 2005 to-date, it had been 15 years of his ownership and occupation of the said farm and that the plaintiffs had never taken him to court for the cancelation of his certificate of title or charged him rentals or let alone evict him from the said farm until when they sued him on October 28, 2020.
And ruling on Hichilema’s application to dismiss the matter on a point of law, Judge Phiri said it was not in dispute that Hichilema had in his possession a certificate of title in relation to the said farm in the extent of 2222.6549 hectares, which was issued to him sometime in 2005 and that he had also caused to be made certain developments on the said land, including a perimeter fence.
She added that it was also not in dispute that the land transactions were registered on the land register at the Ministry of Lands.
“I, therefore, find the foregoing as matters of fact. What is in dispute are the circumstances that led to the acquisition and possession of the said property,” Judge Phiri said.
She said it had clearly been shown by the printouts from the Ministry of Lands, whose veracity had not been challenged, that the parties were aware in 2005.
“It is preposterous to invite this court to believe that the plaintiffs could not have been aware of the overt action by the defendant (Hichilema) of fencing the property and placing his workers on it to show the extent of his acquisition. Further, the depositions of the plaintiffs are not only conflicting, but confusing. In one breath they claim to be completely unaware of the acquisition of the property and in another claim that as far as they were concerned, they were only dealing with Benard Mazuba,” Judge Phiri added.
“I find that the version of events by the plaintiffs leave much to be desired to the extent of untruthness. The events as presented by the defendant, as backed by the documentary evidence tend to represent the truth. I, therefore, adopt the version of events by the defendant and find that the plaintiffs were in fact aware of the transfer of the property to the defendant, whether by themselves or through one Benard Mazuba in 2005 when it happened.”
Justice Phiri stated that even in the event that the plaintiffs had not been party to the assignment, they would have, with reasonable diligence, discovered the alleged fraud.
She said the particulars of the transactions were contained in a public register at the Ministry of Lands, adding that as administrator of the estate of the late Samson Siatembo, the first plaintiff had the duty to properly administer the estate to avoid its waste or dilapidation.
Judge Phiri said it was, therefore, within her duty to regularly inquire upon the status of the property, especially as she had stated that there was a prevailing mortgage with Lima Bank.
She further said the plaintiff as an administrator of the estate sat on her rights and had come too late in the day to attempt to rely on fraud to stop the time running.
“Having found that Sections 4 and 10 of the Limitation Act 1939 apply to this case as the right to sue arose in 2005 and section 26 doesn’t apply in this case, this matter is dismissed for being statute-barred. Costs for the defendant to be taxed in default of agreement,” ruled Judge Phiri.
She granted the plaintiffs leave to appeal.