Joyce Wamunyima Mwanakatwe and Ors v Livingstone City Council (APPEAL No. 186/2020) [2021] ZMCA 270 (29 October 2021)

. . .. IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL No. 186/2020 BETWEEN: I __) T V ? r JOYCE WAMUNYIMA MWANAKATWE 1 ST APPELLANT MULASO MULASO (SIA Administratrix and orphan of the estate of the late Charles Luwaya Likomeno) 2 nd APPELLANT CATHERINE LOLOZHI (SIA Administratrix and widow of the estate of the late Charles Luwaya Likomeno) 3RD APPELLANT MAUREEN BWEUPE (SIA Administratrix and widow of the estate of the late Joe Njovu) 4TH APPELLANT ELIZABETH SIMONA MAIBIBA (SIA Administratrix and widow of the estate of the late Charles Pumulo Maibiba) 5TH APPELLANT KA TUSI MA YUMBELO (SIA Administrator and orphan of the estate of the late Moses Mayumbelo) 6TH APPELLANT AND LIVINGSTONE CITY COUNCIL RESPONDENT Coram: Makungu, Sichinga and Banda-Bobo, JJA on 26th August, 2021 and 29th October, 2021 For the Appellants: Mr. S. Mweemba of Messrs Mweemba Switz Associates For the Respondents: Ms. P. P. K aungu, Legal Counsel JUDGMENT Sichinga JA delivered the Judgm ent of the Cou rt. Cases referred to: 1. Livingstone City Council v Sinywibulula (SCZ Appeal No. 35 of 2008) 2 . Godfrey Miyanda v The Attorney General (1985) Z. R. 185 3. ZCCM Limited v Kangwa and Others (SCZ Judgment No. 25 of 2000) 4 . The Attorney General v Steven Luguru (SCZ Judgment No. 20 of 2001) 5 . Kabwe Municipal Council and Lukanga Water and Sewerage Company v Chrispin Mataa Nyoka CAZ Appeal No. 187 of 2018 6. Col. Kashekele C. Kayombo and Others v The Committee of the Sale of Government Pool Houses and Others (SCZ Judgment No. 21 of 1991) 7. Lusaka City Council and Another v Grace Mwamba and Others (1999) Z. R. 97 Legislation referred: 1. Zambia Wildlife Act No. 14 of 2015 2. Interpretation and General Provisions Act C hapter 2 of the Laws of Zambia 3. Lands Act Chapter 184 of the Laws of Zambia 4. National Parks and Wildlife Act Chapter 201 of the Laws of Zambia 5. Local Government Act No 22 of 1991 Laws of Zambia 6. Local Government (amendment) Act No. 30 of 1995 Laws of Zambia 7 . Water Supply and Sanitation Act No. 28 of 1997 Laws of Zambia 1.0 Introduction 1. 1 This is an appeal arising ou t of a decision of th e High Court at Livingston e , dated 10 th July 2020, by which M. Zu lu J -J2- declined to order the respondent local authority to sell houses in the Mosi-O-Tunya National Park to the appellants. The learned trial judge opined that such an order could have given the appellants exclusive rights on the properties acquired in the game park and more or less given them rights which could impede the proper operations of the wildlife authority. 1.2 Although there are five grounds of appeal presented, they cover just two main issues; firstly whether the enactment of the Wildlife Act No. 14 of 2015 could affect the sale of the houses 1n the national park to the appellants. Secondly as argued 1n ground 5, whether the lower court should have ordered the local authority to offer alternative housing units to the appellants. 2.0 Background 2.1 The factual background is set out in detail in the judgment of the Court below. Suffice to state that the appellants were the plaintiffs in the court below and they comprised widows and children of former employees of the defendant (respondent -J3- council). The said employees and their families occupied the houses in dispute at diverse times between 1978 and 1996. At the time of the trial in 2018, the families were still in occupation of the housing units. The disputed houses are located in the Mosi-O-Tunya National Park at a place referred to as Raw Water Intake in Livingstone. 2.2 The plaintiffs alleged that in 1996, the President, through a circular which was later revised by Circular No.2 of 1996, ordered or directed all councils in the country to sell their housing units to sitting tenants, save those units reserved as institutional houses. They alleged that the defendant, by way of Minute No. LCC/225/ 11, resolved to sell the disputed houses to the sitting tenants. However, the defendant declined to offer the houses to the plaintiffs. That in October, 2017, they were served with eviction notices and availed thirty (30) days to vacate the houses. 2 .3 The plaintiffs then commenced this action in the lower court by way of writ of summons and statement of claim, seeking the following reliefs: -J4- 1. An order that the defendant council offers each of the plaintiffs the house they occupied at Raw Water Intake Compound as per Circular No. 2 of 1996 as read together with the Livingstone City Council Resolution Minute No. LCC/225/ 11; 2. An order that they were entitled to purchase their respective houses; 3. An order that the defendant's eviction order was null and void; 4. An order of injunction restraining the defendant, its agents and servants from evicting them from their houses or dealing with the houses in any manner; 5. Costs; and 6 . Any other relief the court may deem fit . 2.4 In its defence, the council contended that the housing units are institutional houses situated in a game management area, the Mosi-0-Tunya National Park. 2.5 The defendant did not dispute that there was a directive by the President of the Republic of Zambia to all councils to sell their houses, save for institutional houses, which was reduced into Circular No. 2 of 1996. It averred that under Council Minute No. LCC / 225 / 11 the council erroneously resolved to off er for -JS- sale the institutional houses in the game park to sitting tenants. That the houses were within the game management area protected under the control of the Zambia Wildlife Authority. 2.6 The defendant further contended that the plaintiffs were unlawfully occupying the houses as they had been paid their terminal benefits. That the area was an ecologically sensitive corridor which posed a danger to wildlife and the plain tiffs ' lives. And finally that the plaintiffs were offered alternative lots free of development charges but they rejected the offers. 3.0 The decision of the court below 3 .1 Having set out the relevant facts , the learned trial judge narrowed down the main issue for determination as being whether or not the plaintiffs were entitled to be offered the houses at Raw Water Intake Compound. 3 .2 The learned judge noted that the defendant did not adduce any evidence to show that the houses were designated as residential units. He went on to state that Circular No. 2 of 1996 was superseded by a letter of 5 th November, 2002 from -J6- the Permanent Secretary, Ministry of Local Government and Housing which amended the policy by barring the sale of institutional houses. The Circular had directed that institutional houses had to be sold. 3. 3 The learned judge relied on the case of Livingstone City Council v Sinywibulula1 in holding that the directive to sell council houses to sitting tenants also extended to institutional houses except the official residences of the Town Clerk and Council Secretary. He opined that the houses were therefore available and should have been offered to the plaintiffs as the widows and orphans of the deceased sitting tenants in line with clause no. n (i) of Circular No.2 of 1996. 3.4 In the Sinywibulula case, the Supreme Court found that the respondent was a sitting tenant at the time when there was a change in government policy. It held that the offer of sale had to be availed to the respondent as he ought to have been given the first option. 3.5 In casu, the learned judge did not think that the Sinywibulula case would resolve the issue. He identified the relevant legal -J7- framework as section 15 (1) of the Zambia Wildlife Act No. 14 of 20151 which states that: "A person shall not acquire a Certificate of Title in respect of any land in a national park, community partnership park or bird or wildlife sanctuary." 3.6 The learned judge went on to hold that even though the plaintiffs were sitting tenants, who qualified to be offered houses by virtue of the government directives and circular, there had been a change in circumstances in light of the enactment of the Act, as no title could be issued for land in the Mosi-0-Tunya National Park. 3. 7 The learned judge declined to order the sale of the houses as the plaintiffs' presence in the park would impede the proper operations of the Zambia Wildlife Authority. 3 .8 The learned judge made no order for the plaintiffs to be offered alternative houses. He stated in obiter that the plaintiffs had been offered alternative land, which they were at liberty to accept. He concluded that the plaintiffs failed to prove their case and made no order as to costs. -JS- 4.0 The appeal 4. 1 Dissatisfied with the Judgment of the lower court, the p laintiffs have appealed to this Court presenting five (5) grounds of appeal couched in the following terms: 1. The High Court erred and misdirected itself both in law and fact when it held that though the appellants herein as sitting tenants of the houses at the Raw Water Intake would have been entitled to the right to be offered the houses by virtue of the government directives and circulars, there had been a change in the circumstances in light of the enactment of the Wildlife Act No . 14 of 2015 and in particular section 15(1) as no title may be issued for land in the Mosi-O-Tunya National Park, when section 14(3)(a)(b)(c) of the Interpretation and General Provisions Act chapter 2 of the Laws of Zambia enacts that where a written law repeals in whole or in part any other written law, the rep eal shall not: revive anything not in force or existing at the time at which the rep eal takes eff ect; or affect the pre vious operation of any written law so repealed or anything duly done or suffered under any written law so rep ealed; or affect any right, privilege, obligation or liability acquired, accrued or incurred under any written law so rep ealed. 2. The High Court misdirected itself both in law and fact when it failed to find that the houses occupied by the appellants herein at Raw Water Intake w ere in the game management -J9- area, as pleaded by the defendant, where leasehold title can be issued and human settlement is not prohibited. 3. The High Court erred and misdirected itself both in law and fact w hen it failed to order the sale of houses to the appellants after finding that the said houses were available and should have been offered to the appellants as widows and orphans of the deceased sitting tenants in line with the note under clause no. n(i) of the Circular No. 2 of 1996. 4. The High Court misdirected itself both in law and fact when it relied on the letter from the Ministry of Tourism in declining to order the sale of the houses to the appellants when the evidence revealed that the houses in issue belonged to the respondent, Livingstone City council and not the Ministry of Tourism. 5. In the alternative, the High court erred and misdirected itself both in law and in fact when it failed to order the respondent to find alternative houses to offer the appellants. 5 .0 The appellants' submissions 5. 1 In support of the grounds of appeal, Mr Mweemba relied on the written submissions filed on 6 th October 2020. 5.2 With respect to ground one of the appeal, we were first referred to a passage of the impugned judgment where the learned judge stated after considering the Wildlife Act supra that -JlO- although the appellants, as sitting tenants of the houses at the Raw Water Intake would have been entitled to the right to be offered the houses by virtue of the government directives and circulars, there was a change in the circumstances in light of the enactment of the Act. 5.3 From the above it was submitted that the decision of the trial court was based on section 15(1) of the Zambia Wildlife Act supra which prohibits the grant of title in the national park. That the trial court was satisfied that the appellants were entitled to purchase houses at Raw Water Intake following government directives and circulars. It was submitted that the appellants' rights to purchase the said houses accrued prior to the enactment of Act No. 14 of 2015, and as such the Act did not apply to the appellants retrospectively. 5.4 It was submitted that the trial court ought to have taken into account the provisions of Section 14(3) of the Interpretation and General Provisions Act2 . That had it done so, it would have found that the appellants ' rights to purchase the houses were not affected by the enactment of Act No. 14 of 201 5. -Jll - .. Reliance was placed on the case of Godfrey Miyanda v The Attorney General2 where the Supreme Court held t h at: "Section 14(3)(c) of the Interpretation and General Provisions Act does not preserve rights of the public at large; it only preserves the specific rights of individuals who have, before the repeal, satisfied any conditions necessary for their acquisition." 5.5 Applying the Godfrey Miyanda case, it was submitted that the fact that the appellants, who were all Zambians and sitting tenants employed by the respondent, at all material times that government issued directives and circulars on the sale of council houses , was sufficient qualification vesting rights 1n them to purchase the houses in dispute . We were urged to allow the first grou nd of a ppeal. 5.6 On the second ground of appeal, we were referred to sections 28 and 29 of the Zambia Wildlife Act supra. Reliance was also p laced on section 8(2) of the Lands Act-1. It was submitted tha t from t hese provisions of the law human settlement in game management areas is not prohibited and leasehold title can be obtained. That the respondent h aving plead ed that the houses occupied by the a ppellants were in -J12- the game management area, the trial court should not have declined to order the respondent to sell the disputed houses to the appellants. Counsel urged the Court to allow the second ground of appeal. 5. 7 The third and fourth grounds of appeal were argued together. Reference was made to the reliefs prayed for by the appellants in their statement of claim. It was submitted that the trial court contradicted itself when it found that the appellants were eligible to purchase the housing units but failed to order the respondent to sell the houses to them. 5.8 It was submitted that it was unlawful for the respondent to thereafter proceed to evict the appellants from the houses as they were not illegal tenants; conducting illicit business in council houses; alien defaulters; and tenants harbouring criminals or engaging in criminal activities. 5. 9 Counsel further con tended that the lower court misdirected itself when it relied on a letter from the Permanent Secretary in the Ministry of Tourism and Arts in declining to order the sale of the houses to the appellants. It was submitted that the said letter could not take away rights vested in the appellants -J13- under a presidential directive which birthed Circular No. 2 of 1996. That the overwhelming evidence on record was that in fact the houses belonged to the respondent and not the Ministry of Tourism and Arts. That the trial court having held that it was bound by the decisions in Livingstone City Council v Sinywibulula supra and ZCCM Limited v Kangwa and Others3 should not have relied on the letter of the Permanent Secretary, which was not binding. We were urged to allow these composite grounds of appeal and order the respondent to offer the disputed houses for sale to the appellants. 5 .1 0 Turning to the fifth and final ground of appeal, which was argued in the alternative, it was submitted that the decision by the government to sell council houses to Zambian citizens who were sitting tenants and council employees was to empower them with already constructed houses and not bare land. Reliance was placed on the cas e of The Attorney General v Steven Luguru4 . It was argued that the intention of government could not have been achieved if sitting tenants -J14- were instead offered bare land when they had no capacity to build houses on the land. 5.11 With these submissions, it was contended that in the event that this Court upheld the lower court, the respondent should be ordered to offer alternative houses to the appellants or build them alternative housing units by way of compensation. 6.0 Respondent's submissions 6.1 In response to the appellants' grounds of appeal, Ms Kaungu , learned legal counsel for the respondent relied on her written submissions filed into court on 17th December, 2020. In h er oral submissions, she brought out two issues . The first is that the respondent did not have any mandate or interest in the disputed properties as its mandate expired between 1995 and 1996 when government reforms birthed the Zambia Wildlife Authority and empowered it to run national parks. She submitted that the respondent did not have good title to pass to the appellants. The second point was that the respondent had no mandate to compensate individuals who did not -JlS- benefit from the sale of housing units. She submitted that such an order would be untenable. 6.2 In the respondent's written heads of argument, all the grounds of appeal are argued together as they are interrelated. It was submitted that the main issue was whether the houses could be offered to the appellants despite being in the Mosi-0-Tunya National Park. 6.3 It was argued that the council houses in the Mosi-0-Tunya National Park were reserved specifically for the operations of the Zambia Wildlife Authority. Reference was made to Section 43(1)(2)(c) of the National Parks and Wildlife Act4 and section 18(1)(2J(a)(b) of the Zambia Wildlife Act which both prescribe offences for residing in a national park except in accordance with the said Acts. 6.4 It was submitted that the appellants are neither officers of the Ministry of Tourism nor authorised to live in the national park by the Zambia Wildlife Authority. Reference was made to the case of Kabwe Municipal Council and Lukanga Water and Sewerage Company v Chrispin Mataa Nyoka5 in which we -J16- said that where anoth er Ministry takes over the running of an activity within its mandate, t h e Ministry cann ot in terfere. 6.5 It was su bmitted that t h e respondent cannot sell t h e disputed houses because the h ouses are now under the jurisdiction of the Ministry of Tourism and Arts. That the appellants ' claim t h at t h ey were entitled to be sold the houses as sitting tenants was misplaced. Our attention was drawn to t h e case of Col. Kashekele C. Kayombo and Others v The Committee of the Sale of Government Pool Houses and Other6 in which th e Supreme Cou rt stated inter alia that it was a privilege, not a right to purchase a government house. It was submitted that the respondent was justified in its refusal to sell the disputed houses for many reasons in cludin g t h e sensitivity of the area and t h e lack of capacity to sell. 6 .6 On the issue of the Livin gstone City Council resolution vide Minute No. 225 / 1 1, it was submitted that the same could not stand as it was issued in error and subsequently replaced by a resolution of 201 7. Reliance was placed on the case of Lusaka City Council and Another v Grace Mwamba and Others7 -Jl 7- where it was said a minute issued in error could be reversed. It was submitted that it was unattainable for the resp ondent to build houses for the appellants as it lacked the capacity to do so and was not indebted to them. 6.7 In conclu sion th e respondent urged the Court to dismiss the appeal with costs. 7 .0 Appellant's submissions in reply 7.1 On the respondent's submissions that it had no capacity to sell the houses to the appellants, Mr Mweemba submitted that there was overwhelming evidence by DW 1 and DW2 that the houses belonged to the respondent. He invited the Court to uphold the finding that the houses belonged to the respondent and were available for purchase. He argued that the Kabwe Municipal Council case could be distinguished from the instant case. That in that case there was evidence that the properties in dispute were transferred to Lukanga Water and Sewerage Company, whilst in casu the council resolution LCC/225/ 11 revealed that the houses belong to the respondent. -J18- 7. 2 He argued that dicta ref erred to in the Kayombo case was obiter from the High Court to which this Court was not bound. 7.3 Turning to the case of Lusaka City Council and Another V Grace Mwamba and Others supra, Mr Mweemba submitted that in that case there was an error made by Lusaka City Council which was corrected. That the council had given houses to National Airports Corporation employees who were sharing with other families. Therefore, it was proper for the council to make changes. That in casu there was no error pointed out by the respondent, and no error by the respondent to offer the houses to the appellants. Counsel reiterated his prayer that the appeal succeeds. 8.0 The decision of the Court 8.1 We have carefully considered the evidence on record, the impugned Judgment and the submissions by counsel on opposing sides of the appeal. The issues for our determination as we sounded them out from the outset are the following- 1. Whether the houses in the Mosi-0-Tunya National Park are available to be offered to the appellants; and -J19- 11. Whether the court below should have ordered the respondent to offer alternative housing units to the appellants. 8.2 The appellants' case is founded on Circular No. 2 of 1996 issued by Government in respect of the sale of houses owned by local authorities. It was directed to all city, municipal and district councils and it set out, in a comprehensive manner, the criteria, terms and conditions applicable to the disposal of housing units. By this circular, councils were to, inter alia, identify all houses designated as official residences for their staff which would not be subject to the sale. 8. 3 The actual process of approval for sale did not begin and end with the full council. According to clause (a) of the circular, the Finance and General Purposes Committee of a council was required, at the first instance, to convene a m eeting or in conjunction with any other appropriate committee discuss the subject in detail. Thereafter, the Finance and General Purpose s Committee, sole or together with an appropriate committee would table their resolutions to the full council for approval of the sale by adopting the minutes of the designated -J20- . ' . committee/ s in compliance with section 67(1) of the Local Government Act5. 8.3 The next stage of the process entailed the council submitting its resolution of the sale to the Minister for approval pursuant to section 67(2) of the Local Government Act supra as amended by section l 2(b) of the Local Government (amendment) Act6. The approval by the Minister was mandatory prior to the actual sale of the houses. 8.4 The appellants' claim to the houses in dispute is anchored on the respondent's resolution to sell as stated in its minute no. LCC / 22 5 / 11 derived from the nineteen th (19 th) ordinary council meeting held on 11 th May, 2011. The report presented to the council at its twentieth (20 th ) meeting on 29th July 2011 , in respect of the houses in dispute, read in part: "SALE OF REMAINING COUNCIL HOUSES TO SITTING TENANTS Report of the Acting Director of Public Health and Social services item 2 refers. The Acting Director of Public Health and Social Services re-submitted the above item which was referred back to the Committee at the last Full Council Meeting held on -J21- • • J .. 11 th May, 2011 for further discussion. He reported that the houses in question were situated at the Raw Water Intake (5), Eureka Ponds (9), Water Works (5) and the quarter at 81 C Chipembi Road. He recommended that: (a) The Committee conducts a site visit to the said houses to see their condition. (b) The Finance and Staff Establishment Committee fixes the purchase price. (c) That letters of offer be prepared for the beneficiaries. RESOLVED TO RECOMMEND THAT (i) The recommendation to sell the remaining Council houses at the Raw Water Intake, Eureka Ponds, Water Works and a Quarter at 81C Chipembi Road be APPROVED." 8.5 Whilst it is clear from this set of facts that a recommendation for the sale of the houses including those at Raw Water Intake was made, it does not appear that the recommendation was either presented to the Minister or indeed approved by the Minister in compliance with section 12 (b) of the Local Government (amendment) Act supra. We have carefully combed through the record of appeal, and it is evident that it -J22- was not shown to the court below that the Minister had approved the council's recommendation to sell the houses at Raw Water Intake in compliance with the law. In like manner, we have nothing on the record to show that the appellants were in fact offered to purchase the disputed houses by the respondent. 8.6 We considered similar circumstances in the Kabwe Municipal Council case<5J, referred to by the respondent in their submissions. In that case, the respondent had been an employee of Kabwe Municipal Council when he was offered a council house. He was given a provisional letter of offer subject to the Minister's approval. Prior to the sale of council houses to eligible sitting tenants and employees of local authorities , the Water Supply and Sanitation Act7 was enacted, and subsequently some council assets, including the house occupied by the respondent were transferred to Lukanga Water and Sewerage Company. The court below found in the respondent's favour. On appeal, we opined that the transfer of the property to Lukanga Water and Sewerage Company -J23- changed th e position in terms of the respondent's claim to entitlement to purchase the h ouse. We stated at page J27 of ou r judgment that: "We opine that the 1st Appellant are no longer in a position to confirm the provisional offer and to complete the sale transaction of the said house. In the circumstances, therefore, the 1st Appellant cannot sell that which they do not possess and the Respondent cannot seek specific performance. " 8.7 In casu the appellants argued that the houses belonged to the respondent. The evidence of ownership of the disputed pr operties came from DWl and DW2 who were the respondent's employees as Town Clerk and Director of Hou sing respectively. The relevant portions of DW l's evidence between pages 159 and 162 of the record of appeal was as follows." "When I looked at the file, it was brought to my attention. I realised t hat it was an issue of a group of people wanting to buy these properties. On the same file I found a letter from the Ministry of Tourism which was saying that the Council cannot sell those properties because they were not title holders ... -J24- . . ' - J , ' .. failed to prove that they were entitled to purchase the houses. Whilst the appellants argued that the Wildlife A ct No. 14 of 2015 could not be applied retrospectively, they had not adduced evidence to show that the land in fact belonged to the council and that they had been availed letters of off er. We find no merit in the first to fourth grounds of appeal and accordingly dismiss them. 8.10 The fifth ground of appeal assails the lower court for r efusing to order the respondents to offer alternative houses to the plaintiffs. The learned judge took into account the respondent's defence that the council had resolved to allocate the plaintiffs land free of development charges. Further , that the appellants had confirmed in their evidence that they had not been paying rent and there were no deductions from the terminal benefits paid to them. We agree with the lower court as there was no legal basis upon which such an order would have been justified. The appellants were at liberty to accept the respondent's offer of bare land, if they so wished. The learned trial judge cannot b e faulted for not ordering that the -J26- . \ ' , ' My Lord the implementation became a problem. The Council resolved to sell land on an area which belonged to ZAWA, the Council had no title. My Lord we had no jurisdiction to sell since we were not title holders of that land ... My Lord I have gone through the file, at no time has the Council ever offered those houses to the plain tiffs." 8 .8 Further, DW2 told the court below that the houses had not been offered to anyone. He termed them as council houses. 8.9 On the evidence we have highlighted, we draw two conclusions. The first is th at there was no evidence to conclusively state that the houses b elonged to the r espondent. Secondly, there is no evidence on record showing that the appellants did infact receive offers to purchase the disputed houses. The learned trial ju dge rej ected DWl and DW2's testimonies on the b asis that they did not provide evidence that the land was titled to the Ministry of Tourism. However, the r espondent's oral evidence was not countered by evidence that the properties inf act belonged to the respondent. Had th e learned judge taken into accou nt that there was no evidence pr oving that the houses belonged to the cou ncil, he would have come to the same conclusion that the appellants h ad -J25- .. appellants be offered alternative houses to purchase. The alternative ground of appeal lacks merit and we dismiss it. 9.0 Conclusion 9.1 The appeal is, on the basis of the forestated, devoid of merit and it is dismissed with costs to the respondent. -----------~ ------------ C. K. Makungu COURT OF APPEAL JUDGE C" ------- ---- - D. L. Y.jSiching COURT OF APP -------- --------~ -------------- A. M. Banda-Bobo COURT OF APPEAL JUDGE -J27-