LUSAKA High Court judge Susan Wanjelani has thrown out the matter in which a Kalomo resident Misheck Hambwalula sued UPND leader Hakainde Hichilema on allegations that he illegally possessed 1,500 hectors of his late father’s farm 21 years ago.
Justice Wanjelani in an order dismissing the matter struck out the case from the active cause list due to failure by Hambwalula to prosecute his case.
She gave the complainant a seven-day ultimatum in which to restore the case failure to which it will remain dismissed.
“This matter was scheduled for hearing of the injunction application inter-partes on July 1, 2021 at 08.45 hours. The parties were not before court and no reason was advanced for their absence. In addition, there is no indication on record that Hichilema has been served with the process. In the premise, the application for the injunction is hereby struck off the active cause list with liberty to restore within seven days failing which it will stand dismissed for want of prosecution,” said judge Wanjelani. “The plaintiff commenced this matter on April 16, 2021. Since then, which is a period of over 60 days, he has not taken any further steps to prosecute the matter let alone put any evidence on record to show that he has served the defendant. Thus, pursuant to the provisions of Order 19(8) of the High Court Rules as amended by SI No.58 of 2020, this matter is hereby dismissed for lack of progress.”
In this case, Hambwalula was seeking an order that the alleged sale of Farm no. 3275 and 801 in Kalomo to Hichilema is a nullity for failing to comply with the intestate succession Act Chapter 59 of the laws of Zambia.
The complainant who has sued Hichilema in the Livingstone High Court over the same matter, wanted an order for possession of Farm No. 3275,801 and 803 and an order of injunction restraining Hichilema, his servants and agents from carrying out farming activities, erecting structures, cutting down trees and entering on the said farms and interfering with the beneficiaries’ quiet enjoyment.
In his statement of claim Hambwalula, who was suing as an administrator of the estate of the late George Hambwalula, said Hichilema is a trespasser and an illegal occupant of Farm no. 3275, Farm no.801 and Farm no.803 in Kalomo district of Southern Province which form part of the estate.
Hambwalula stated that his father died intestate on July 1998 in Kalomo and following his death he left his mother and siblings in occupation of the said farm.
He said in 2015 he visited his siblings in Kalomo and to his surprise he learnt that in 2000 Hichilema had trespassed, fenced and illegally occupied farm no.3275 and later in 2015 he occupied farm 801 and 803.
Hambwalula stated that whilst gathering information, Hichilema called him on his cell phone and he asked him why he had illegally occupied his father’s estate without informing him as the eldest son but he allegedly responded that he paid his younger siblings some money whom he knew as administrators and was in the process of paying more money so that he could buy the said farms.
“During the phone conversation, I begged the defendant not to entice my siblings with money as the farms were not for sale. I informed him that my father was buried on Farm no.801 and Mr Hichilema responded that he likes dealing with young people because they are a problem and like money,” Hambwalula alleged. “The defendant insisted that young people are the ones who could give him what he wants since they don’t know the value of land. Mr Hichilema responded that he did not care about the grave of your father and will go ahead and get all the land including the grave site.”
He contended that Hichilema is a neighbour and owns another farm in Kalomo and he should have known that his father died without leaving a will and had more than one wife and many children who needed to be consulted before any sale or purchase could be undertaken.
Hambwalula added that Farm no.801 was mortgaged to Lima Bank and the mortgage registered on January 12, 1989 by his late father for K106,000 and interest and that Hichilema knew about the farms in question because his senior partner at Grant Thornton Christopher Mulenga was the receiver of Lima Bank.
He further sought an order for the removal of caveats, mesne profits for illegal occupation of the farms and damages for fraud and mental distress, anguish and surgery as a result of stroke.