Gibson Uthant Kuyeli v Chongwe District Council and Anor (APPEAL NO. 118/2004) [2006] ZMSC 64 (27 June 2006)

i ' '! : . ,, 'i'-,;_:. ... -:•-:~ J 1 ; ; ,~ '. f ~ l ·t l i . IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 118/2004 BETWEEN: GIBSON UTHANT KUYELI APPELLANT AND CHONGWE DISTRICT COUNCIL MATHEWS MKANDA WIRE (MALE) 1 ST RESPONDENT 2ND RESPONDENT CORAM: LEW ANIKA, DCJ., CHITENGI, MUSHABATI, JJS On 11 th October, 2005 and 2ih June, 2006 For the Appellant: For the Respondent: In person ,, M. N. NDHLOVU ofChifumu Banda & Associates JUDGMENT LEW ANIKA DCJ, delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court dismissing the Appellant's claim for a declaration that Plot No. P/Sunguni of Lot 9186/M Chongwe the former Conference site for the United National Independence Party is part of Plot Q of Lot No. 9186/M Chongwe as per its C physical and original sketch plan and ·should be so declared and that the ' same be offered to the Appellant as a sitting tenant under the Presidential 0 directive to sell Council houses so as· to fo_nn the whole package in the sale of the said plot to the Appellant and that Plot P /Sunguni of Lot No. 9186/M Chongwe cannot be offered to the 2nd Respondent who is not a sitting tenant and that such offer should be declared null and void. The facts which are not in dispute are that the Appellant in June, 1995 was transferred from Solwezi in North Western Province to Chongwe in the Lusaka Province. By an arrangement made between the Inspector General of Police and the 1st Respondent, the Appellant was accommodated at the former Presidential Guest House comprising the main house and a dining hall which was used by the first Republican President during provincial conferences of the United National Independence Party. From the evidence on record it would appear that no rentals were being paid for the Appellant's occupation of these premises. The Presidential Guest House and the dining room were on one property known as Lot No. 9186/M to which the 1st Respondent had acquired title in sometime between 1994 and 1995. Initially the 1 ST Respondent had intended to develop this property for use as a motel or hotel but owing to financial constraints this was not possible and it was decided to subdivide the property and sell the individual units. The relevant portion of the minutes of the special council meeting held on 31 st May, 1996 reads as follows:- f ! t ! } ': ·•; !, ,'. j ., f " '! "(iii) the property at Nsunguni Conference site be demarcated into smaller lots of varying sizes after which the lots shall be advertised to the public for sale." After the subdivision the Presidential Guest house was on Plot Q whilst the dining room was on Plot P. By letter dated 5th June, 1998 the 1st Respondent offered the Appellant to purchase the Guest house situate on Plot Q at a price ofK3,400,000,00 and the Appellant accepted the said offer Q and paid the purchase price. By another letter dated 5 th June, 1998 the 1st Respondent offered the 2nd Respondent to purchase the building on Plot P at a price of K870,000.00 and the 2nd Respondent accepted the said offer and paid the full purchase price. The Appellant objected to the building on Plot P being offered for sale to the 2nd Respondent on the ground that he had ,, occupied both buildings prior to the subdivision and that the 2nd Respondent had not been a sitting tenant of the building on Plot P. In consequence () thereof, the Appellant instituted these proceedings to nullify the offer of Plot P to the 2nd Respondent The learned trial Judge in the Court below found that the 1st Respondent was entitled to offer the 2nd Respondent the building situate on Plot P hence this appeal. The Appellant has filed no less than twenty "grounds of appeal", although in reality these are not grounds of appeal but rather a repetition of the assertions made by the Appellant in the court below by his viva voce ! evidence and the various affidavits that h". filed in support of the notice of motion. In the view that we take of this appeal, we do not intend to consider these 'grounds of appeal' seriatim. The main thrust of the argument being advanced by the Appellant is that the 1st Respondent should not have offered the building situate on Plot P to the 2nd Respondent as the 2nd Respondent was not a sitting tenant. As we have already pointed out, the resolution made by the 1st Respondent at its Special Council meeting held on 31s t May, 1996 was that the property at Nsunguni Conference site be demarcated into smaller lots after which the lots were to be advertised to the general public for sale. There was no requirement or stipulation that the sale be restricted to sitting tenants. The learned trial Judge in the court below was therefore .:r on firm ground when he found that the 1st Respondent was entitled to offer Plot P to the 2nd Respondent. In truth, this appeal is totally devoid of merit and we dismiss it accordingly. However, given the circumstances of this case, we make no order as to costs. D . M. Lewanika DEPUTY CHIEF JUSTICE Ui ~ COURT JUDGE . S. Mushabati SUPREME COURT JUDGE 4