Chingonyi v ZCCM Investments Holdings PLC and Anor (Appeal 120 of 2007) [2010] ZMSC 9 (5 August 2010)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT (CIVIL JURISDICTION) Appeal No. 120/2007 BETWEEN: TITUS CHINGONYI APPELLANT AND ZCCM INVESTMENTS HOLDINGS PLC 1st RESPONDENT ANGELA MWAPE KASHIWA 2™ RESPONDENT Coram: Sakala., CJ, Chirwa, Chibomba, JJS On 2nd June 2010 and 5th August 2010 For the Appellant: For the 1st Respondent: Ms Namwinga, Legal Counsel, ZCCM For the 2nd Respondent: Mr M. Chitabo, of Chitabo Chiinga & Assciates Mr D. Mazumba of Douglas & Partners JUDGMENT Chirwa, JS, delivered the Judgment of the court. Cases referred to: 1. G. F, Construction (1976) Limited V Rudnap (Zambia) Limited SCZ Appeal No. 150 Of 1998 (Unreported) 2. Victor Katundu V Bonny Khunga Appeal No. 182 of 2000 This is an appeal arising from a successful action in the High Court by the 1* respondent, ZCCM INVESTMENT HOLDINGS PLc and the 2nd respondent, ANGELA MWAPE KASHIWA for a -J2- declaration that the 2nd respondent was owner of and entitled to possession of house number 2 Parker Avenue, Nkana West, Kitwe; and order that appellant gives up possession of the said house; an order that the appellant pays the outstanding electricity and water bills from the date he occupied the house to the time he vacates the house. There are common and undisputed facts in this case. The appellant was employed by TECHPRO, a subsidiary of the then ZCCM from 1983 to 1996 when he was retrenched. While working for TECHPRO he was accommodated at house no. 15th Street, Nkana East, Kitwe, a house belonging to ZCCM but leased to TECHPRO. After his employment with TECHPRO was terminated, he continued staying in the house and he later, in other proceedings before another court, obtained an injunction retraining ZCCM from evicting him from the house. This injunction was later discharged. He was then evicted from the house. On humanitarian grounds, he was allowed to occupy house no 2 Parker Street, Nkana West, Kitwe. The 2nd respondent was working for ZCCM and was accommodated elsewhere. She worked from 1988 to 1999. In 1997 -J3- ZCCM started selling its housing stock and the 2nd respondent was offered house no 2, Parker Street, Nkana West, Kitwe, although not living there. She accepted the offer and paid for the house from her terminal benefits. At the time she bought the house, she was told that it was empty but when she went to inspect the house she found the appellant and his wife. She told them she had bought the house and wanted them to leave. They informed her that he, the appellant, had been offered another house but there was a widow who had not been paid her terminal benefits. She carried out some renovations whilst the appellant was in the house. When she finally asked them to leave, they told her that they were sitting tenants and entitled to buy the house. Hence the dispute. On the facts found, the learned trial Judge found that there were four issues to resolve. Firstly, whether the appellant was a sitting tenant; secondly, whether he was eligible to purchase the house. The third issue was whether the 2nd respondent was the rightful owner of the house and finally, whether the respondents were entitled to mesne profits. On the evidence the learned trial Judge found that the appellant was given the house on humanitarian grounds as he had nowhere to go with his family -J4- and was to stay there for about a month whilst looking for alternative accommodation and therefore he was not a sitting tenant but a mere licencee. She further found that even if the appellant was a sitting tenant, he was not an employee of ZCCM to be eligible to buy the house. She found on the evidence, that the 2nd respondent was a bonafide purchaser of the house and therefore owner of the same and that the appellant was in the house without authority or licence from the 2nd respondent. She therefore declared that the 2nd respondent was owner of the number 2 Parker Avenue, Nkana West and therefore entitled to possession thereof and gave the appellant one month to give empty possession of the house to the 2nd respondent. She further ordered that the appellant settles all outstanding water and electricity bills from date of occupation of the house up to date of vacating it. On the authority of G. F. CONSTRUCTION (1976) LIMITED V RUDNAP (ZAMBIA) LIMITED*1*. there were no mesne profit awarded to the respondents as there was no tenancy agreement. Il is against these findings that the appellant has appealed to this court. There are three grounds of appeal. The first is that the learned trial Judge erred in law and facts in not holding that the -J5- appellant was entitled to purchase the house despite making a finding that there was a pending case before the Industrial Relations Court by the appellant for the claim of terminal benefits. The second ground of appeal is that the learned trial Judge erred in law and in fact in not taking into account that Techpro Zambia Limited was a subsidiary of ZCCM and also not taking into account the rules governing the sale of ZCCM houses in that employees who were retired but had not received their terminal benefits were eligible to purchase ZCCM houses. The third ground of appeal is that the learned trial Judge erred in law in holding that the appellant was not entitled to purchase the house when in actual fact the appellant was under the rules governing the sate of ZCCM houses qualified. Parties files detailed written heads of argument on which they relied. The gist of the appellant’s written heads of argument is that he was an employee of the 1st respondent but seconded to Techpro Zambia Limited where he was declared redundant in 1996 paid his benefits at Techpro Zambia Limited. Further he was given the house in issue by the 1st respondent as his employers and he was therefore a sitting tenant. Further that he was eligible to buy the -J6- 1st respondent’s house as he had not been paid his terminal benefits. On being entitled to purchase the house while working for Techpro Zambia Limited which was a subsidiary of the 1st respondent, the case of VICTOR KATUNDU V BONNY KHUNGA(2) was relied on as authority decided by this court on that point. He prayed that the appeal be allowed. For the 1st respondent, it was submitted that although the appellant was originally working for it, he was seconded to its subsidiary Techpro Zambia Limited where he was retrenched in 1996 and paid his terminal benefits well before the sale of houses commenced. It was further submitted that he was in fact given occupancy of the house in question on humanitarian grounds after he ceased to work for Techpro as he had nowhere to go and there was no document to signify allocation of the house in issue to him. On behalf of the 2nd respondent, the submissions made by the 1st respondent were adopted and in addition, it was submitted that the appellant went on forum shopping as in one case commended by him, he was claiming house no.5, 15th Avenue Nkana East Kitwe in Cause No. 1996/HK/493 and another matter in Cause No, 1996/HK/279 which cases he lost and he never -J7- appealed against them. Further, the case allegedly before the Industrial Relations Court is irrelevant for if it were relevant, he could have applied to stay these proceedings pending the outcome of the case before the Industrial Relations Court. The 2nd respondent also prayed for the dismissal of the appeal. We have considered the evidence on record, the Judgment of the lower court and the submissions before us and we will consider all grounds together. The evidence clearly shows that the appellant was originally employed by the 1st respondent but later seconded to Techpro Zambia Limited and he was retrenched in 1996 at Techpro Zambia Limited. At the time he was retrenched, there was no sell of houses policy, this policy came in 1997. The evidence also shows he was paid his terminal benefits on being retrenched at Techpro Zambia Limited. Upon receiving his terminal benefits, he was evicted from the house belonging to the 1st respondent on lease to Techpro Zambia Limited and on humanitarian grounds he was given occupancy of house no.2 Parker Avenue on promising that he would be there for one month while awaiting for a house bought by his wife from her employers. -J8- There was no offer from 1st respondent to the appellant of sell of the house in issue. On the other hand, evidence clearly shows that the 2nd respondent was an employee of the 1st respondent and although not a sitting tenant in the house in issue, was offered for sell the house and she paid for it from her terminal benefits and she has title. The appellant was informed of the sale of the house and advised to enter into tenancy agreement with new owner. The 2nd respondent carried out renovations to the house which was done by PWS2 and 3. With all this evidence before the learned trial Judge, she came to a decision we cannot fault. We confirm that the 2nd respondent is the rightful owner of house number 2, Parker Avenue, Nkana West, Kitwe and is entitled to possession of the same. We further confirm that the appellant gives vacant possession of the said house within 30 days from today and on vacating the house, he must pay all water and electricity bills from the date he occupied the house to the date he vacates. The appeal is dismissed. We are alive to the fact that as there was no tenancy agreement between the appellant and 2nd respondent and as such -J9- no mesne profits could be awarded, equity compels us that the appellant ought to pay for the use of the house from the time he occupied the house up to the time he vacates it and this we do under the “further or other relief the court shall deem fit” pleaded and the same to be assessed by the Deputy Registrar. Costs will be for the respondents, to be agreed, in default to be taxed. E. L. SAKALA CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE H. CHIBOMBA SUPREME COURT JUDGE