By Staff Reporter
Former opposition United Party for National Development (UPND) Namwala Member of Parliament Ompie Nkumbula Liebenthal has been cited for contempt of Court after defying the Supreme Court judgment that stopped her from evicting villagers of Maala area in Namwala district.
Delivering Judgment Justice Sichinga stopped Ompie from fencing off the land on which some villagers live saying the status quo ought to be preserved until the letter of the law is adhered to as outlined hereinbefore.
“For the avoidance of doubt, the appellants’ have equitable interest in the portions of the land they occupy which must be taken into account when converting the respondent’s land or remainder of it. Therefore ground two is allowed,” read part of the judgment. “Having allowed grounds one and two, ground three has become otiose. Costs for the appellants to be taxed in default of agreement.”
But according in his submission for contempt of court proceedings, Inkamba Shichilaba, one of the affected villagers, stated that Ompie has fenced off the area in which the affected Villagers live despite the Supreme Court ruling.
“That on 1st February, 2018 the Court of Appeal delivered a judgment in favour of the appellants in which the said Court clearly indicated that ‘the status quo ought to be preserved until the latter of the law is adhered to as outlined herein before’. That to the contrary, the Respondent has fenced off all the portion of Land purportedly belonging to her using the site plan which was rejected by the Court of Appeal thereby blocking accessibility of the 1st Appellant to his shop, borehole, maize fields, other sources of water and the burial site,” read Shichilaba’s submission in part. “That the Applicants believe that the Respondent herein has shown utter disrespect to the Honourable Court especially that she was advised or directed to adhere to the law in the process of converting her customary Land to State land. That in view of the Respondent’ action, the Applicants urge the said Respondent to appear before this Honourable Court to show cause why she should not be cited for contempt of Court.
This is in a matter in which Namwala villagers through Inkamba Shichilaba appealed against the High court ruling delivered on November 3, 2016 which granted Ompie authority to evict some Namwala villagers living on land she claimed belonged to her family.
Ompie dragged Shichilaba and other villagers to court, seeking an order to recover possession of her customary land at Maala village, on grounds that she was entitled to ownership of the land and that Sichilaba and other villagers living on the land were on the land without consent.
Ompie submitted before the High court that the land in dispute had been given to her grandfather Longwani Nkumbula by headman Simushachi in the 1950s adding that after the death of her grandfather in 1963, the ownership of the land was passed on to her father Harry Mwaanga Nkumbula. She further submitted that upon the demise of her father, her brother Biggie Nkumbula took over and that she took possession of the land after the death of her brother.
Ompie told the High Court that Shichilaba and other villagers came to live on her family land by virtue of the fact that her grandfather had married Shichilaba’s grandmother as a second wife.
She also told the High Court that the land dispute arose when she applied to the Ministry of Lands to convert the land from customary to leasehold tenure.
Shichilaba argued that Ompie’s grandfather was given land by Headman Shimusachi because he married his daughter adding that late Harry Nkumbula later took over the land, which he fenced off and built some houses within the fenced area. Shichilaba and other villagers challenged Ompie’s ownership of the land she intended to convert to leasehold tenure alleging that she was proposing to absorb their land as well. The Villagers told the High Court that they took their complaints before a traditional court presided by Chief Mungaila, under whose jurisdiction the land fell and that the traditional court ruled in her favour stating that the extent of Ompie’s land included portions occupied by the villagers. But that the traditional court stopped Ompie from evicting the villagers who had already built on the disputed land.
The High Court heard that, Ompie, however, revoked the villagers’ licence to live on the land because they had disputed her ownership and sought to recover possession of the land in the High Court.
The High Court ordered that alternative land be found for the villagers and granted them 12 months within which to leave Ompie’s land.
But Shichilaba and other villagers appealed against the High Court judgment arguing that the trial High Court erred both in law and in fact when it held that Ompie’s land extended beyond the fence from the big tree in the south all the way to the north up to her grandfather’s field.
The villagers also argued before the Supreme Court presided over by Justices C. K. Makungu, J. Z. Mulongoti and D. Y. Sichinga that the High Court erred both in law and in fact when failed to indicate as to who should find alternative land for the affected villagers and build alternative houses.
They further argued the learned trial Court erred both in law and in fact when it failed to recognize Shichilaba as a member of the Shimusachi family.
In his submission, Shichilaba’s lawyer G. Lungu from Muleza Mwiimbu & Company asked the Supreme Court to set aside the impugned judgment, allow all three grounds of appeal and order redemarcation of the whole area where the villagers intends to Ompie intends to acquire a Certificate of Tile under Headman Shimusachi.
In response, Ompie’s lawyers M. Sikaulu and E. Hanziba of SLM Legal Practitioners, submitted that the villagers’ ground one of appeal was without legal basis stating that their arguments were only of fact. Ompie’s lawyers submitted that it was trite law that a ground of appeal could not be based on fact alone citing a case of Zulu versus Avondale Housing Project Ltd.
With regard to the extent of the land, Ompie’s lawyers submitted that the trial Judge was on firm ground on account of the evidence of the judgment of the traditional court which provided the extent of the land and was unchallenged by the affected villagers. Ompie’s lawyers also submitted the High Court correctly held that the villagers were not licencees to continue occupying the land and as such alternative land was to be found to enable them relocate. On ground three, Ompie’s lawyers submitted that the High Court was on firm ground in its determination that the first appellant was a Shichilaba and not a Shimusachi.