Congolese investor takes land battle to Supreme Court
By Francis Lungu
A CONGOLESE investor who is embroiled in a legal battle for ownership of land with Grannys Bakery in Lusaka has taken the case to the Supreme Court for judicial review.
Kalyoto Muhalyo Paluku, of House No. 6865 Akanongo Road in Lusaka’s Olympia residential area has since been granted a temporary stay of execution pending hearing of a motion in the Supreme Court on July 20.
Paluku was sentenced to 24 months imprisonment by a Lusaka subordinate court on May 27, 2005 for threatening violence over the controversial commercial plot behind COMESA building in Lusaka. However, the court granted him cash bail of K500,000 on June 20, 2005 by a Lusaka High Court after three appeal attempts by his lawyers.
This was in a case in which Mustafa Mwansa of Lusaka sued Kalyoto Muhalyo Paluku, a Congolese national who has invested in Zambia for threatening violence in an incident said to have happened on March 18, 2004 at a controversial commercial plot No.19218 in Lusaka along Kafue Road behind COMESA secretariat.
Paluku was released on bail by Lusaka High Court judge Gregory Phiri after his three lawyers, Chifumu Banda, State Counsel from Chifumu Banda and Associates and lawyers from Permanent Chambers, Mubanga and Davies Chibangula appealed for bail. However, though the Lusaka High Court judge Phiri on June 20, 2005 granted Paluku bail, the appeal was still pending.
During the first attempt applying for bail on May 30, 2005, magistrate Lesa refused bail to Paluku’s lawyers, and later on June 6, 2005 bail was denied again by the Lusaka High Court on the basis that some documents were missing from the case record at Lusaka Chikwa court after magistrate Dominic Lesa presided over the ruling and sentence.
Paluku was sentenced to two years imprisonment on May 27, 2005 by magistrate Lesa and according to the case record read on that day by Lesa, Paluku is said to have found Mustafa Mwansa on the plot in question supervising workers digging foundations and trenches on March 18, 2004 and issued words of threats that “One day I will axe you,” but Paluku denies having ever issued such statements.
Paluku said when he found people working on his plot No. 19218 he immediately contacted his lawyers, Permanent Chambers who advised him to verify details of ownership at the Ministry of Lands on whether the plot had been allocated to someone else, but all documentations were intact in Paluku’s name.
Paluku’s lawyers further advised their client to report the matter to a closest police station to the controversial plot and reported the matter to Inspector John Lwanja at Katondo Police Post whi was then located at the banned Katondo Bus station. “Upon verying my documents, and after he had taken notes from me Inspector Lwanga asked me to drive him to the plot which I did and found the same man (Mustafa Mwansa) whom I came to know the following week as Mustafa Mwansa but he refused to give his name to the police officer,” Paluku narrated. He added that Mwansa failed to produce documents but hoped that his superiors, Ishaq Musa and Granny’s Bakery had documents.
As the matter unfolded, it was discovered that on October 31, 2003, a Mr John Kalala, a chief planning assistant in the Ministry of Local Government and Housing was alleged to have forged the Minister, Sylvia Masebo’s signature purporting the authorization and re-designed the plot in question into two different plots under numbers 30751 and 30752 and issued certificates of title to Granny’s Bakery and Ishaq Musa. However, it was later unearthed that Kalala acted illegally and his superior, Director of Physical Planning and Housing, Dr Glynn Khonje wrote to Paluku’s lawyers that certificates of title given to Granny’s Bakery and Ishaq Musa by Kalala were cancelled for the deal was deemed illegal and that the Ministry of Local Government and Housing was not involved in the allocation of plots.
“With regard to Stand No. LUS/19218, I am aware that a layout plan was prepared by Mr John Kalala, re-designing the area and resulting in the creation of ‘Stand 30751 and “Stand 30752’. These two ‘stands’ were created on the basis of unauthenticated layout plan,” Dr Khonje’s letter reads in part.
In his ruling on May 27, 2005, magistrate Lesa presiding over the case in which Mustafa Mwansa sued Paluku for threatening violence alluded that the source of the matter was a land dispute of the same plot situated behind COMESA secretariat along Kafue Road which both parties were claiming to be rightful owners. According to the case record read by Lesa, a police inspector, John Lwanja of Lusaka Katondo Police Post testified that indeed Paluku issued such threats on Mwansa. This testimony was in conflict with Paluku who narrated that Inspector Lwanja was taken to the plot after he reported that he had found some people working on his plot.
Lesa said such threats uttered by Paluku could have driven fear on the complainant’s life and that Paluku deserved to be charged accordingly with a sentence of 24 months imprisonment. In mitigation, the defence counsel, Permanent Chambers’ Davies Chibangula said Paluku, a married man with seven children all in school was the sole breadwinner and was the first offender, hence the need for the court to exercise maximum lenience. The defence counsel also noted that Paluku had a number of investments in the country which had created employment to 80 locals and that sending him to prison would deprive livelihood to so many people including his aging mother under his custody. However, Lesa could not reserve or reduce the sentence he slapped on Paluku after the mitigation. The bone of contention in the matter surrounds Plot No. 19218 which Paluku claimed to have bought at K60 million with transaction scripts from Zambia Revenue Authority (ZRA) indicating that the deal was concluded on April 15, 2002 but to his surprise, on March 18, 2003, he found Mwansa and friends digging foundation on the same plot, a situation that resulted into a dispute.
