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Mulla & Others v Jabi (Appeal 75 of 2016)  ZMSC 5 (17 January 2018);
Civil Procedure – Appeal – Point of law already decided by apex court in judicial hierarchy – Approach to be taken in seeking to have apex court depart from previous decision
Civil Procedure – Choice of forum – Whether unworkable for High Court and Lands Tribunal to have concurrent original jurisdiction
This matter was commenced on 11 December 2012 when the Respondent issued a writ of summons against the Appellants seeking essentially to repossess Stand No F/369a/184 Makeni, Lusaka, on the ground that it had been fraudulently sold by the 3rd Appellant to the 1st and 2nd Appellants. The Appellants made two applications to challenge this action. Both applications were dismissed. The third application raised a point of law, that by virtue of Section 4(1) of the Lands Tribunal Act, No. 39 of 2010 (the “Lands Tribunal Act”), the High Court has no jurisdiction to entertain disputes relating to land.
The High Court ruled that Article 94(1) of the Constitution, which was applicable then, vested the High Court with unlimited jurisdiction in civil matters, including those involving land and that that jurisdiction was retained in Article 134 of the current Constitution. The court went on to hold that Section 4 of the Lands Tribunal Act did not oust the High Court's jurisdiction in land matters because it expressly stated that the provisions in that section were subject to the Constitution. It was the court's view that, if it had been intended that the Lands Tribunal should have exclusive jurisdiction in matters concerning land, the Constitution would have expressly so stated. The Appellants appealed.
Their appeal came in the wake of two appeals that were before the Supreme Court in the recent past: Union Gold (Zambia) Limited v The Attorney General, SCZ Judgment No. 141 of 2016 and Beatrice Mulamfu v Kelvin Mukuka Mwamba, Appeal No. 80 of 2014. The said appeals raised the same question which was raised in the Appellant’s appeal. This question was settled in the Union Gold Case where it was held that the Lands Tribunal Act does not oust the High Court’s jurisdiction to hear land disputes as a Court of first instance. This was reaffirmed in the Beatrice Mulamfu case.
1. It is evident that all the grounds of appeal seek to reargue the point of law that the Supreme Court has already settled previously. That ought not to be the approach. Instead, the Appellants ought to have demonstrated, first, in what manner the decision is wrong and secondly, what sufficiently strong reason exists to persuade the Supreme Court to depart from that decision.
2. The Appellants have not demonstrated any special reason why the Supreme Court should depart from the previous decisions. Their contention that it is an unworkable arrangement for the High Court and the Lands Tribunal to have concurrent original jurisdiction in land matters simply does not hold water. The Respondent gave a very good example of how such an arrangement works; namely, the relationship between the High Court and the Subordinate Courts in certain civil cases, such as those where the claim is unliquidated. This arrangement has been in existence since the creation of these two courts in this country. Yet, never has the arrangement been found to be unworkable. The arrangement provides parties with a choice of forum to commence their litigation. There is no absurdity or injustice in that.