Manda v Chitemene (Appeal 96 of 2005) [2007] ZMSC 171 (23 April 2007)

-Jl- IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL/96/2005 BWEETEN: MICHELLE MBILIKWAO MANDA APPELLANT AND FLORENCE CHITEMENE (Suing as Administrator of Henry George Chitema Tembo) RESPONDENT Coram: Sakala, CJ. Chibesakunda and Mushabati, JJS. On 5th October 2006 and 23rd April, 2007 For the Appellant: For the Respondent: Mr. M. Njovu of Chifumu Banda and Associates General G. C. Chileshe of Messrs Paul Pandala Banda and Company. Chibesakunda, JS, delivered the Judgment of Court. JUDGMENT Legislation referred to. 1. Lands and Deeds Act Cap 185. 2. Lands Act Cap 184. 3. Aviation Act Cap 444. Cases referred to: 4. Attorney General, Ministry of Works and Supply, Rose Makano, v. Joseph Emmanuel (Frazer and Peggy) Sikumba SCZNo. 2001. 5. ZCCM Ltd v. Richard Kangwa & Others SCZ No. 25/2000. 6. Beatrice Mui mui vs. Silvia Chunda SZC No. 50 of 2000. -J2- This is an appeal against the Judgment in which the High Court ruled that the Respondent’s late brother bought the house in question from GRZ. In order to do justice to both parties in this judgment, we have to catalogue the sequence of events. There were a number of facts on which there was common ground in the appeal. These are: 1. That the Respondent is the Administratrix of her late brother Henry George Tembo (hereinafter referred to as the deceased). She sued the Appellant in that capacity. 2. That the deceased joined Civil Aviation Department in the Ministry of Transport Communication between 1982 and 1983. He was allocated house No. 6494 Mugoti Road Roam, Lusaka. 3. That in 1989, the Government of the Republic of Zambia enacted Act No. 16 of 1989, which is Cap 444 Vol. 25 Civil Aviation Act in which all civil servants were transferred in the Civil Aviation Department to National Airport Corporation (NAC) Limited - a Parastatal body which was Statutorily created as a result of this Act. 4. That in 1996 the Government of the Republic of Zambia introduced a scheme of empowering its employees as well as -J3- employees of Parastatal bodies by circular issued on 13th September, 1996 on the implementation of the Civil Service Home ownership scheme where these employees were to be sold houses they occupied by virtue of employment. 5. That NAC Limited employees approached the Head of State to sanction NAC’s purchasing of 15 houses which its employees occupied and which had been allocated to these employees by the Government of the Republic of Zambia as civil servants before they were transferred to NAC. The President of the Republic of Zambia sanctioned the sale of these 15 houses to NAC. 6. That the Government of the Republic of Zambia established a Committee on the sale of Government Houses. That same Committee on 14th December 1999 at its 38th sitting noted the Head of State’s sanctioning of the sale of these 15 houses to NAC. One such house sold to NAC was house No. 6494 Mugoti Road Roma which the deceased occupied. 7. That NAC bought these 15 houses from the Government of the Republic of Zambia. -J4- 8. That on 9th August 2000 the deceased obtained a mortgage and paid for this house through NAC. On 19th December, 2001 the Ministry of Finance acknowledged the full payment for this house by the deceased. 9. That the deceased subsequently died and the Respondent was appointed as administratix of the deceased estate. 10. The Appellant on the other hand was allocated this same house, House No. 6494 Mugoti Road Roma in December 1999 when she was not a sitting tenant. 11. That the Appellant was offered to buy House No. 6494 Mugoti Road Roma on the 9th February 2000. 12. That she then paid full purchase price, although she was not a sitting tenant. 13. That the Committee on the Sale of Government Houses was empowered to allocate a house to a civil servant even if she was not a sitting tenant. -J5- The evidence for the Appellant on which there was a dispute was that she was offered house No. 6494 Mugoti Road Roma, Lusaka in 1998 as a civil servant before the Respondent was offered the house. When she was offered house No. 6494 Mugoti Road Roma on 9th February 2000 she paid full purchase price. DW2 who gave evidence in support of the Appellant testified that the Committee on the Sale of Government Houses investigated the offer to the deceased and concluded that the deceased was no longer a civil servant at the time he was offered to purchase this house and that is why they offered the same house to the Appellant. According to DW2 the Committee discovered that the NAC was paying economic rentals to Government at that time. Even if she paid for that house she was not a sitting tenant. However, in cross-examination DW2 accepted that the Head of State had sanctioned NAC to purchase 15 houses, which their employees, who were former civil servants occupied. He described the system used by the Committee on the Sale of Government Houses to implement the empowerment policy in court. According to him this issue was brought to the attention of the deceased before he was offered the house. He was even offered an alternative house. The evidence for the Respondent, on which there was dispute, is that the deceased qualified to buy the house from Government. The evidence for the Respondent was that the action by the Committee dealing with the sale of Government houses was not justified to allocate and subsequently sell the same house to the Appellant. It was submitted by the Respondent that although the deceased ceased to be a civil servant on the 11th of September, 1989, he nonetheless qualified to purchase this house because the Head of -J6- state sanctioned the sale of 15 houses including the house he occupied, to NAC before 14th December, 1999 well before the Appellant was allocated this house. The Committee on the sale of Governments Houses acknowledged the sanction of the Head of State to sell these houses to NAC. According to the Respondent the Committee wrongly allocated this house to the Appellant as it had already been sold to NAC and as such was not part of Government house stock. On these facts, the court held that the Respondent was the rightful purchaser of house No. 6494 Mugoti Road, Roma. The court relied for this decision on the case of ZCCM v. Richard Kangwa & Others (51 Being aggrieved by this decision the Appellant hence appealed to this court. She raised five grounds of appeal, these are:- Ground 1 That the learned trial Judge erred and misdirected himself in law and fact in declaring the Respondent the rightful owner of house No. 6494, Mugoti Road, Roma, Lusaka, who should be issued the title deed for it when the Respondent is only an Administrator of the estate of one HENRY GEORGE TEMBO (deceased) who was himself not qualified to own or purchase a government pool house No. 6494, Mugoti road, Roma, Lusaka. GROUND 2 That the learned trial Judge erred in law and fact in ignoring and/or not appreciating the evidence of the Respondent that the Respondent and the late Henry George Tembo on their own volition retired from Government civil service and opted to be employed by the NAC -yi- Limited and thereby became ineligible to purchase government pool houses under the Government civil service house ownership Scheme. GROUND 3 That the Learned Trial Judge fell into grave error and misdirected himself in law and fact to contradictorily hold that here was credible evidence in court disqualifying both the Appellant and the Respondent from purchasing the government pool house under the Scheme but that, however, there was credible evidence to qualify the Respondent only to be an eligible purchaser of government pool house under the same scheme. GROUND 4 That the Learned Trial Judge failed to properly analyze and apply the Government Policy contained in the Handbook on the Civil Service House Ownership Scheme as this Honourable Court had long before done in a number of decided cases. GROUND 5 That the Learned Trial Judge misdirected himself in law and fact in not deciding on the question as to who between the Appellant and the Respondent was a truthful witness in the face of the fraud allegation contained in the evidence presented in court by the Respondent concerning House No. 6494, Mugoti, Roma, Lusaka. Before us, the Appellant decided to argue all these grounds altogether. Both Counsel informed the court that they were going to rely on the written heads of argument. In the written heads of argument, the Appellant argued that the central issue, in all these grounds of appeal, was whether or not the lower court was correct to have held that the Respondent was entitled to -re­ purchase the house in question. It was urged that the Appellant was allocated the house in question by the Housing Committee - a Government housing Committee charged with the responsibility of allocating houses in the Government house stock. It was also urged that the allocation on 30th December 1999 to the Appellant and subsequent issuing of the certificate of title to her gave an advantage over the deceased. She further urged that although the deceased was allocated the house in question on 13th April 1989 when he was a civil servant, on 11th September, 1989 he ceased to be a Civil servant. So even though in 1999 the Head of State sanctioned the sale of 15 houses to NAC, the deceased could not buy the house from Government because he was no longer a civil servant. It was argued that on 30th December 1999 the Appellant was allocated the house in question, which she was subsequently offered to purchase on 9th February 2000. So between the two she was the only eligible person to buy the house. By then, the Respondent was no longer a Civil servant. Citing the case of Beatrice Mui mui vs. Silvia Chunda (6) it was argued on behalf of the Appellant that the Respondent was not qualified as he ceased to be a civil servant by the time he was offered to buy the house in question. It was also pointed out to us by the Appellant that even the certificate of title had been issued to her. So she had a better title to the property in question. The Appellant cited the case of ZCCM Ltd v. Richard Kangwa 7 Others (5) in support of this proposition. According to her, she had a certificate of title, and so as such, her entitlement should not be interfered with. On the question as to whether as a non sitting tenant, the offer to her was justified; she argued that her offer was just one of many such offers made by the Committee on the Sale of Government houses to -J9- civil servants. She urged that although the deceased had been a sitting tenant he was not eligible to buy the Government house as he had ceased to be a civil servant. She went on to argue that although the authorization by the President on the sale of Government houses to NAC was before the 14th December 1999, it was not brought to the attention of the Committee on the Sale of Government Houses until after she was offered this house. She therefore urged this court to uphold her appeal. The Respondent’s response to these arguments was that the lower court was on firm ground when it held that the deceased was the rightfill purchaser of the house in question. It was urged on behalf of the Respondent that the lower court did not misapprehend the facts when it reached these conclusions. It was argued that the sequence of events, catalogued in this appeal was such that the lower court had to conclude in the way it did. It was brought out in the argument that although the deceased ceased to be a civil servant on the 11 September, 1989, the President of the Republic of Zambia sanctioned the sale of these 15 houses including house No. 6494 Mugoti Road, Roma to NAC as way back before the 14th December, 1999 and in fact the Committee on the Sale of Government Houses acknowledged this authorization by the Head of State to sell these houses to NAC on its 38th sitting, on the 14th December 1999. It was brought out on behalf of the Respondent that the Appellant was only offered to buy the house in question on the 9th of February 2000. Therefore, according to the Respondent, by the time the Appellant was being offered this house in question for her to buy, the house had already been sold to NAC. -J10- We have looked at the issues raised in this appeal. We note that there are a number of facts on which there is common ground. We therefore hold that the lower court scrutinized the sequence of events and concluded in the way it did. From the evidence before us, we are satisfied that the President of the Republic of Zambia sanctioned the sale of these 15 houses to NAC as way back before the 14th December 1999. So even though the deceased only concluded paying for the house long after he ceased to be a civil servant, he was the right full purchaser of the house. In our view, once the Head State sanctioned the sale, that sealed the transaction. The Appellant claimed that the deceased was offered this house when he ceased to be a civil servant. That may be so, however, the house in question at the time it was offered to the deceased was not a Government house, it belonged to NAC, NAC made arrangements with its own employees to secure mortgage which enabled its employees to fully pay for the houses in question. We are therefore satisfied that although the deceased purchased the house when he was not a civil servant, he was the rightful purchaser because the house no longer belonged to Government. So the case of Beatrice Mui mui vs. Silvia Chunda (6) does not apply. NAC owned the house and as such it decided to sell it to its own employee the deceased. The Appellant argued that the learned trial Judge was wrong in law and fact when he declared the Respondent as owner of the house since the Respondent is just an administratrix of the deceased estate. We have ruled that the deceased qualified to purchase this house No. 6494 Mugoti Road, Roma because his own employers offered him and sold it to him on an arrangement. Therefore, we hold that the Respondent being an administratrix of the estate of her deceased brother, she had stepped in the ':h ’H: • • .. Wil- shoes of the deceased. Therefore, the lower court was on firm ground to have declared the Respondent as the rightful “owner” of house No. 6494 Mugoti Road, Roma. The lower court in our view loosely used the words “owner”, indicating that she was only administering the estate of the deceased and was not strictly speaking the owner of this house. She was administering the whole estate of her deceased brother, which included this house in question. We therefore cannot fault the learned trial Judge. In conclusion, therefore, we dismiss the appeal. We make no order as to costs. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE