Mporokoso v Mumbi (SCZ 19 of 2014) [2014] ZMSC 122 (29 April 2014)

SCZ Judgment No. 19 of 2014 P460 IN THE SUPREME COURT OF ZAMBIA 148/2012 APPEAL NO. HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: JUDITH MPOROKOSO APPELLANT AND KERRIES MUMBI RESPONDENT CORAM: Mwanamwambwa, Chibomba JJS and Kaoma, Ag JS On the 4th September, 2013 and 30th April, 2014 For the Appellant: In Person For the Respondent: In Person JUDGMENT Kaoma, Ag JS, delivered the Judgment of the Court. Cases referred to: 1. Beatrice Muimui v Sylvia Chunda SCZ Appeal No. 50 of 2003. 2. Lusaka City Council & National Airports Corporation v Grace Mwamba & Others (1999) Z. R. 97 J2 P461 3. Zambia Consolidated Copper Mines Limited v Richard Kangwa & Others (2000) Z. R. 109. 4. Brenda Mwale v Bwalya Daka SCZ Appeal No. 48 of 2006 5. Emmanuel Sakala v Kennedy Kalungu & Others - Cause No. 1998/HK/489 (unreported) 6. Frank Malichupa & Others v Tanzania-Zambia Railways Authority (2008) Z. R. 112 This is an appeal against the judgment of the High Court delivered on 4th July, 2012, dismissing the appeal by the appellant against the Subordinate Court judgement dated 29th October, 2009, which granted ownership of house No. 3B/24 Mpatamatu Township in Luanshya, to the respondent. The case for the appellant was that she is a teacher, employed by the Ministry of Education. In 1996 she was allocated house No. 3B/34 Mpatamatu, Luanshya, which belonged to Zambia Consolidated Copper Mines Limited (ZCCM). She signed a lease agreement with ZCCM and her employers deducted rentals from her pay, for onward transmission to ZCCM, on a monthly basis. Pursuant to the Government home ownership empowerment scheme, she was on 8th August, 2002 offered the J3 said house for sale at the price, of K1,000,000.00. On 23 rd June, 2006 she paid the P462 purchase price having accepted the offer on 13th August, 2003. She was later approached by the respondent who informed her that he was the new owner of the house and that she should start paying rentals to him. Upon her refusal to pay the rentals, the respondent commenced proceedings against her in the Subordinate Court. The case for the respondent was that he was an employee of ZCCM. On 20th October, 1998, his employer offered him the house in issue for sale, at the price of K1,306,000.00, although he had never been a sitting tenant. The purchase price was deducted from his terminal benefits, as he had retired by then. He later approached the appellant to inform her that he was now the legal landlord of the house and that she should start paying him rentals, but she informed him that she too, had purchased the same house. The respondent then commenced the proceedings in J4 the Subordinate Court seeking for vacant possession of the house, costs, and any other relief that the court may deem fit. Gilbert Siame, a titles officer from ZCCM (which was the 2 nd defendant in the matter before the respondent decided not to P463 proceed against it), had testified on behalf of the respondent that ZCCM’s policy was to sale its houses to miners and not to non- miner sitting tenants, unless there was a surplus of houses. The Subordinate Court found that ZCCM was right to offer and sale the house to the respondent. Being dissatisfied with that decision the appellant appealed to the High Court. Only one ground of appeal was argued by Mr. Musonda of National Legal Aid Clinic for Women, alleging that the court erred in law and fact when it offered the house to the respondent because the appellant had not only been a sitting tenant but she was also offered the house in question and purchased it. Upon hearing submissions from both parties (the respondent appeared in person), the learned Judge in the court below found for the respondent and dismissed the appeal. He held inter alia that: J5 “The appellant was not a sitting tenant in the said house but a mere occupant who was allocated the house by her employer, which had a tenancy agreement with ZCCM, the landlord. This is supported by evidence that rentals for the house were deducted from her pay by her employers. I would therefore, find no fault in the decision of the lower court in this matter in so far as the decision to award the house to the respondent is concerned.” P464 It is against this judgement that the appellant now appeals to this Court, on nine grounds which we have summarised as follows: 1. The learned trial Judge erred in law and fact and misdirected himself in his judgment when he mentioned that the house was the property of ZCCM but leased out to the Ministry of Education. Appellant was allocated the house by Ministry of Education and rentals were deducted from her salary by the Ministry. 2. The learned trial Judge misdirected himself when he partially quoted the case of Beatrice Muimui v Sylvia Chunda1, a Supreme Court judgment that held that being a sitting tenant was not the only criterion for purchasing a house under the Presidential directive without finishing the contents of that judgment. 3. The learned trial Judge erred in law and fact when he mentioned in his judgment that the respondent was offered the house on 20th October, 1998 according to the letter of offer exhibited before the lower court as MEK1 at the price of K1,306,000.00. J6 4. The learned trial Judge erred in law and in fact when he mentioned in the judgment that the legal counsel Mr. Musonda had erroneously taken the view that no letter of offer to the respondent was exhibited before the lower court. 5. The learned trial Judge erred in law and in fact when he concluded that the correct position as the Subordinate Court record revealed was that the respondent got his offer in 1998 while the appellant received her offer in 2002 and that it was clear testimony that the offer to the appellant was either fraudulent or erroneous thereby giving the respondent a better claim. P465 6. The learned trial Judge erred in law and fact when he mentioned in the judgment that Mr. Musonda wrongly relied on the case of National Airports Corporation v Grace Mwaba2, which held that the offer to the respondent was in error. 7. The learned trial Judge was really entirely on firm ground when he mentioned in the judgment that as regards the case of 3 , it is clear that in that case, ZCCM v Richard Kangwa & Others the issue was not about competing offers between two or more parties. The issue there was whether the decision of the Board of Directors could override the decision of the Shareholders and the court found that it could not. 8. The learned trial Judge erred in law and fact when he mentioned that the offer to the appellant was null and void and that the respondent’s purchase price was recovered from his terminal benefits and also that the scheme was employed by ZCCM as a way of improving its liquidity position pending privatisation and the same was met with approval by the Supreme Court in Brenda Mwale v Bwalya Daka4. 9. The learned trial Judge erred in law and fact when he mentioned in his judgment that in the case at hand, it had already been established that the offer to the appellant was J7 null and void for coming about four years after the property had been offered to the respondent. In brief, the appellant submitted, on ground one that the holding of the court below was misleading and contrary to her evidence. She referred us to the tenancy agreement between her and ZCCM marked “JCKM4” and her payslip confirming that the Ministry of Education was deducting rentals from her salary on P466 behalf of ZCCM marked “JCKM9” at pages 63-67 and 88 respectively of the record of appeal. She submitted that she was allocated the house for rent by ZCCM in 1996 and that in the same year ZCCM started selling its houses to sitting tenants. The appellant further argued that in his declaration on the sale of Government houses, the then Republican President stated that houses should be sold to sitting tenants. That there is evidence on record that the respondent was not a sitting tenant of the house in issue, a fact he acknowledged at pages 37 line 25 and 38 line 20 of the record of appeal. She argued that this evidence contradicts the court’s finding at page 19 line 25 to the J8 effect that she was not a sitting tenant but a mere occupant who was allocated the house by her employer, which had a tenancy agreement with ZCCM, the landlord and that this position was supported by her evidence that rentals for the house were deducted from her pay by her employers. On ground two the appellant submitted, that she was a sitting tenant of the house in issue and therefore qualified to purchase the house. She relied on our holding in Beatrice Muimui v Sylvia Chunda1 where we stated: P467 “We do not subscribe to the argument that being a sitting tenant is the sole criterion in purchasing of a government/quasi government house in the current policy of empowering employees by government. We take judicial notice that the other important criterion is that the potential purchaser has to be an employee of the government/quasi government organisation” On the basis of the above holding, the appellant submitted that being an employee of Government, as a teacher in the J9 Ministry of Education, she qualified to purchase the house in issue under the Government housing empowerment policy. In relation to the third ground, the appellant submitted that the respondent did not produce before court his letter of offer for the purchase of the house; he merely produced “MEK1” which is a contract and conditions of sale. That apart from what “MEK1” says, there is nothing on the record to prove that the purchase price of K1,306,000.00 was actually deducted from the respondent’s terminal benefits. She argued that the respondent ought to have P468 exhibited his last payslip to prove the deduction of the purchase price such as the payslip marked “JCKM5” at page 80 belonging to a former ZCCM employee who had purchased a ZCCM house and had paid the purchase price from his terminal benefits. She submitted that in the absence of such payslip, the lower court’s finding was against the weight of evidence. On ground 4, she reiterated that the lower court erred in its finding because as rightly submitted by Mr. Musonda, her counsel J10 in the court below; there was indeed no offer letter on record in favour of the respondent. That “MEK1” is not an offer letter and therefore the finding of the court is not supported by evidence. With regard to ground 5, the first argument advanced by the appellant is that the respondent’s offer letter was not produced in evidence thereby rendering the holding of the court that he was offered the house in 1998 a misdirection. The second argument is that she was a legal sitting tenant as evidenced by the tenancy agreement between her and ZCCM at page 63-67 and was offered the house, and she paid for it as per the receipt “JCKM3” at page P469 of the record. The third argument is that if indeed the offer given to her was erroneous or fraudulent, then ZCCM could not have accepted her money and issued her with a receipt. The fourth argument is that if the house was also offered and sold to the respondent, all ZCCM could have done was withdraw the offer to the respondent and refund him since he had never been a sitting tenant of the said house. J11 She referred us to pages 91-96 of the record which are minutes of the ZCCM Board members and sitting tenants of ZCCM houses, where it was resolved that non miner sitting tenants would not be victimised or harassed by ZCCM employees who had been given offer letters for houses occupied by non miners. On ground 6, the appellant submitted that her counsel was standing on solid ground when he relied on National Corporation v Grace Mwamba2 because ZCCM had already resolved and agreed on 8th April, 1998 to reverse all offers that were wrongly given to its employees who were not sitting tenants and to refund them their monies to allow the sitting tenants to purchase the houses. She P470 stated that unlike the respondent who had not produced his offer letter and receipt of the purchase price; she produced both her offer letter and a receipt for the purchase price for the house in issue. She submitted further that from 1996 when she occupied the house to 2006 when she finally bought it, ZCCM had not J12 repossessed the house from her. She said there was only one attempt by the ZCCM legal counsel which was thwarted by the Kitwe High Court in Emmanuel Sakala v Kennedy Kalungu & Others5 where the court quashed and set aside the order and writ of possession of ZCCM owned houses occupied by the petitioner sitting tenants and ordered that the bailiffs should not execute the said writ of possession On ground 7, the appellant argued that the holding in Zambia Consolidated Copper Mines Limited v Richard Kangwa & Others3 explained that the Zambian Government was the major shareholder in ZCCM and therefore enjoys the right of overriding authority over ZCCM affairs and even over the wishes of mere nominees or directors. That the two Presidential directives by the P471 late President FTJ Chiluba of 27th September, 1997 at page 108 and by former President RB Banda of 16th April, 2011 at page 110 of the record emphasised the fact that houses should be sold to J13 sitting tenants regardless of whether or not they were direct employees. In relation to ground 8, she urged that the lower court erred to rely on Brenda Mwale v Bwalya Daka4 because first, she produced her offer letter whilst the respondent did not; second, she produced the receipt evidencing the payment of the purchase price whilst the respondent did not show proof of payment; and third, the scheme by ZCCM of improving its liquidity position pending privatisation was challenged in Zambia Consolidated Copper Mines Ltd v Richard Kangwa & others3. This, it was contended, shows that the lower court’s decision was not based on evidence. Finally on ground 9, the appellant contended that the court erred in holding that her offer was null and void. She reiterated her arguments on ground 5 which we find unnecessary to repeat. She further submitted that page 96 of the record clearly shows the reversal and withdrawal of offers given to ZCCM employees who P472 J14 were wrongly offered houses where they were not sitting tenants. She stated that she attended a verification exercise conducted by ZCCM which established that she was the sitting tenant and hence in 2006 she paid for the house, and that at page 120 is a list dated 18th October, 2010 of people who had purchased mine houses in Luanshya and her name appears under 2114. She urged us to allow the appeal and to set aside the lower court’s judgment and declare her as the legal owner of house no. 3B/24 Mpatamatu, Luanshya. In his viva voce response, the respondent submitted that he was offered the house as an employee of ZCCM in 1998; and that as the landlord; he never signed any tenancy agreement with the appellant as she claimed that she was the sitting tenant of the said house. He stated that when he approached the appellant in 1999, she had no documents in relation to the house purchase or her occupation of the same, and that she started pushing for the purchase after four years with full knowledge that he had already bought it. He stated further that they went together to ZCCM offices J15 P473 and only found a receipt for K1,000,000 (old currency). For the rest he said he would rely on the judgment of the court below. We have considered the record of appeal, the submissions from both parties, and the judgment appealed against. It is our considered view that the nine grounds of appeal are interrelated as seen from the appellant’s arguments which are repeated throughout, thus we propose to deal with them simultaneously. From the nine grounds of appeal it is our view that only one main issue arises for determination and this is whether or not the appellant was eligible to purchase the house in issue from ZCCM. It is not in dispute that the appellant was a teacher and an employee of the Ministry of Education and was the sitting tenant of the house in issue after she signed a lease agreement in her personal capacity with ZCCM. It is further not in dispute that the appellant was offered the house for sale on 8th August, 2002 at a purchase price of K1,000,000.00 or that she executed the Law Association of Zambia Contract and Conditions of Sale with ZCCM J16 P474 on 17th October, 2006 or that she paid the purchase price on 23rd June, 2006 (See documents at pages 63-74 of the record of appeal). It is also not disputed that the respondent was an ex-miner of ZCCM who had not been paid his terminal benefits, but he was not a sitting tenant of the said house. However, it is common cause that he purchased the said house in 1998. Although there was no letter of offer produced by the respondent in the Subordinate Court, he testified that he was offered the house in 1998. The Law Association of Zambia Contract and Conditions of Sale at page 76 of the record of appeal, was executed on 2 nd October, 1998 between ZCCM and the respondent. The purchase price for the house was K1,360,000.00, the amount the respondent said he paid. In addition, the letter from ZCCM to the respondent at page 75 of the record of appeal, dated 20th October, 1998 confirmed that the purchase price for the house would be deducted from the appellant’s terminal benefits. J17 P475 It is true, as submitted by the appellant, that the respondent did not produce a receipt or his last pay statement to prove that the purchase price for the house was deducted from his terminal benefits. Be that as it may, ZCCM never disputed offering and selling the house to the respondent in 1998. PW2, the Titles Officer from ZCCM testified on behalf of the respondent that the latter was an ex-miner and was entitled to the house; that the policy was that miners should be given priority, and any excess be sold to sitting tenants; and that the respondent bought the house and he paid through his terminal benefits. It is very clear to us that the respondent purchased the house in issue in 1998, long before it was offered to the appellant in 2002, and that at the time of purchase; he was eligible to buy the house. The contract of sale between ZCCM and the respondent having been concluded in 1998, ZCCM could not offer the same house to the appellant for purchase because the house J18 was no longer available for sale. Indeed, after the appellant was informed by the respondent P476 that he had purchased the house and he was the new landlord, the appellant started fighting to be offered the house by ZCCM. According to the appellant, meetings were held between some Government representatives and non-miner sitting tenants of ZCCM houses and certain pronouncements were made to the effect that letters given by ZCCM to its employees should be ignored and that subsequently ZCCM decided to offer for sale to non-miner sitting tenants, including the appellant, the houses they occupied. We wish to point out that although in advancing her argument that she was eligible to purchase the house, the appellant referred us to a number of documents, the documents at pages 80, 91-100, 107-118 and 120 were not produced or referred to by the appellant either before the trial court or the court below, so the lower courts had no opportunity to rule on these documents. In these circumstances we decline to have J19 recourse to these documents. It is abundantly clear to us that the sale of the house to the respondent was never rescinded nor was the purchase price refunded to him. P477 We are inclined to agree with part the appellant’s arguments in support of grounds 1, 3, 5 and 8 that the learned Judge made certain findings of fact that were not supported by evidence. For instance, the record reveals that the appellant signed the lease in respect of the house in issue with ZCCM. There was no evidence that the Ministry of Education signed the lease and merely allocated her the house. It was therefore erroneous for the learned Judge to hold that the house was leased to the Ministry of Education. We also accept that the evidence on record does not show the exact date when the respondent was offered the house. But even if we were to accept that the learned Judge erroneously mentioned in his judgment that “the respondent was offered the house on 20th October, 1998 according to the letter of offer exhibited before the lower court as MEK1”, the appellant does not J20 dispute that the contract of sale was executed by ZCCM and the respondent on 2nd October, 1998 or that on 20th October, 1998, ZCCM confirmed through “MEK1” that the purchase price for the house would be deducted from the respondent’s terminal benefits. P478 Furthermore, much as the offer to the respondent, and the payslip or receipt to prove that the purchase price was paid, were not produced in evidence, there is no dispute that the actual contract was produced or that it proved the sale of the house to the respondent in 1998, well before the offer and sale to the appellant. Moreover, PW2’s unchallenged evidence shows that the respondent bought the house, meaning that the purchase price was paid. Further still, although there was no evidence before the Subordinate Court that the offer to the appellant was fraudulent and fraud was not pleaded, thereby making the learned Judge’s finding on that point wrong, in our view, the learned Judge was entitled to find, on the evidence, that the offer to the appellant J21 was erroneous as the respondent got his offer in 1998 while the appellant got hers in 2002, and that therefore the offer to the appellant was null and void. As the learned Judge rightly stated, in Lusaka City Council & National Airports Corporation v Grace Mwamba & Others2 the Supreme Court found that the first appellant was entitled to P479 withdraw the offers to the respondents because they were issued in error, contrary to the directives and went on to cancel the sales and ordered a refund to the respondents of any payments made to the council and cancellations of certificates of titles, if issued. In this particular case, there was no evidence that the offer to the respondent was made contrary to the guidelines on the sale of ZCCM houses or that the sale of the house was in breach of any directive at the time. The appellant has spiritedly argued that she is entitled to benefit from the sale of the house because she was the legal J22 sitting tenant and a government employee. While we acknowledge that the appellant was and still is a government employee in the Ministry of Education, she was not an employee of ZCCM, the institution that was selling the house or of a subsidiary of ZCCM as was the case in the Kangwa case,3 which the learned Judge properly distinguished. Indeed, if the learned Judge was on firm ground as put in ground 7 of the appeal to mention that in the Kangwa case3 the P480 issue was not about competing offers between two or more parties, but whether the decision of the Board of Directors could override the decision of the Shareholders, we do not see how the Judge could be faulted at all. Clearly the Judge rejected the suggestion by Mr. Musonda that since the appellant was a sitting tenant her interest should override that of the respondent who received the offer as an employee of ZCCM because he was not a sitting tenant. He also rejected the suggestion that the trial magistrate erroneously cited Beatrice Muimui v Sylvia Chunda1 or that the decision in that J23 case goes against the spirit of housing empowerment. The learned Judge referred to Brenda Mwale v Bwalya Daka4 to show that the Supreme Court has upheld that principle in other cases. Of course, we have in a number of cases outlined the qualifications for purchasing a house pursuant to the Government home ownership empowerment scheme. In Beatrice Muimui v Sylvia Chunda1, referred to above, we stated that being a sitting tenant is not the sole criterion in purchasing of a Government or P481 quasi Government house in the policy of empowering employees by Government and that the other important criterion is that the potential purchaser has to be an employee of the Government or quasi Government organisation. We also wish to re-state what we said in Frank Malichupa & Others v Tanzania-Zambia Railways Authority6 as follows: 1. The law is settled that for someone to be eligible to purchase a house from the Government of the Republic of Zambia or a parastatal body, that somebody has to be: J24 a) a sitting tenant and at the same time, either he or she is an employee or former employee not yet paid his or her terminal benefits b) widow or child of the deceased of an employee of the Government of the Republic of Zambia or parastatal, who has not yet been paid his or her terminal benefits at the time the scheme was put in place c) he/she is a retired employee of the Government of the Republic of Zambia or a parastatal or an employee of the Government of the Republic of Zambia or a parastatal declared redundant d) employee who has been medically discharged from employment at the time the scheme was put in place e) he/she are a married couple where both of whom work for TAZARA each qualifies in his/her own right to purchase a house; and f) he/she is an employee occupying other type of house other than institution P482 Applying the decisions in the above two cases to the facts of the present case, it is clear that the appellant did not qualify to purchase the house in issue. Being a sitting tenant and an employee of the Government in the Ministry of Education at the time of the implementation of the home ownership empowerment scheme did not make the appellant eligible to purchase a ZCCM J25 house. The appellant needed to be an employee of ZCCM or a subsidiary of ZCCM in addition to being a legal sitting tenant. The house in issue was not a Government pool house. It belonged to ZCCM, a quasi-Government institution although the Government was the majority shareholder. As testified by PW2, ZCCM had preferred to sell the house to the respondent, a former employee who had not been paid his terminal benefits though he was not a sitting tenant. Clearly, the respondent was eligible to purchase the house; and he paid for it through his terminal benefits P483 and we would be right to say that the house was sold to him as part of his benefits. We find that the learned Judge did not misdirect himself when he mentioned that the scheme was employed by ZCCM as a way of improving its liquidity position pending privatisation or that J26 the offer to the appellant was null and void for coming about four years after the property had been offered to the respondent. We find that the issue of refund of the purchase price to the respondent does not arise at all. If anything the appellant is the one to pursue ZCCM for the refund of her purchase price. Although ZCCM is not party to this appeal, in the interest of justice and equity, we direct ZCCM to refund the K1,000,000.00 purchase price paid by the appellant. In all, we find no merit in all the nine grounds of appeal. We dismiss the appeal with costs to the respondent, to be taxed in default of agreement. The appellant must vacate the house within 21 days from date hereof. In default we direct the police to assist the respondent to evict the appellant from the house. P484 ………………………………….. M. S. MWANAMBWAMBWA J27 AG. DEPUTY CHIEF JUSTICE …………………………………… H. CHIBOMBA SUPREME COURT JUDGE …………………………………… R. M. C. KAOMA AG. SUPREME COURT JUDGE