Kibombwe v Lungu (Appeal 217 of 2000) [2007] ZMSC 155 (1 March 2007)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 217/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ALLAN CHISONI KIBOMBWE APPELLANT AND MARTHA MWEWA LUNGU RESPONDENT CORAM: NGULUBE, CJ, LEWANIKA, A/DCJ, CHAILA, JS. On 12th July 2001 and 1st March, 2007 For the Appellant: For the Respondent: P. CHISI of Chifumu Banda & Associates Mrs. K. CHIBIYA of J. B. Sakala & Co. JUDGMENT LEWANIKA, DCJ delivered the judgment of the Court. AUTHORITIES REFERRED TO: 1. ZAMBIA CONSOLIDATED COPPER MINES VS RICHARD KANGWA & OTHERS - APPEAL NO. 169/99 2. BEATRICE MUIMUI VS SILVIA CHUUNDA - APPEAL NO. 50/2000 3. FELIX KANYIMBA VS MICHAEL MUSONDA - APPEAL NO. 99/2000 The delay in the rendering of this judgment is very much regretted but it was occasioned by circumstances beyond our control. When we heard this appeal the panel included our late brother the Hon. Mr. Justice CHAILA and following his unfortunate demise, this judgment is to be regarded as by the majority. In this appeal we shall refer to the Appellant as the Defendant and the Respondent as the Plaintiff, which were their designations in the court below. The appeal is against the decision of a Judge of the High Court ordering the removal of a caveat placed by the Defendant on Plot 1217 Kew Gardens, Parklands, Kitwe and granting vacant possession of the same to the Plaintiff and mesne profits. The brief facts before the learned trial Judge which are not in dispute are that the Plaintiff was employed by ZCCM in September, 1991 up to February, 1999. Following a decision made by government to sell houses to sitting tenants and others who qualified, the Plaintiff was offered to buy the property situate on Plot No. 1217 Kew Gardens, Parklands, Kitwe at a purchase price of K14,240,000.00 by ZCCM Limited. The Plaintiff accepted the offer and a contract of sale was executed between herself and ZCCM. When the advocates acting for her and ZCCM Limited attempted to lodge the assignment between herself and ZCCM Limited at the Lands and Deeds Registry, they could not do so as the Defendant had placed a caveat on the property stating “A stop to any transaction to the property as the Applicant has information that the landlord is desirous of selling the house to someone and the Applicant is entitled to buy the house as a sitting tenant per presidential directives. ” The Defendant was employed by ZCCM Limited on 6th June 1965 and retired on 9th August 1996. He had been occupying the property in dispute since 1977. He had remained in occupation of the house as a tenant after retirement. Following an announcement by the Head of State on the sale of houses to sitting tenants he applied to ZCCM Limited to purchase the house but was not successful. Later he learnt that the house had been offered to the Plaintiff and decided to place a caveat on the property to protect his interests. This prompted the Plaintiff to institute the proceedings which are the subject matter of this appeal. The learned trial Judge upon a consideration of the evidence adduced before him found that the Defendant had no interest to protect as he was not entitled to purchase the house and vacated the caveat and granted the Plaintiff vacant possession and mesne profits, hence this appeal. Counsel for the Defendant has filed two grounds of appeal, namely:- 1. That the learned trial Judge erred in fact and law when he held that the presidential directive to public institutions to sell some of its houses to ‘sitting tenants’ who were not employees of those institutions was a mere policy statement which was never intended to have the binding force of law; 2. That the learned trial Judge erred in fact and law when he held that a service charge and retention fee were not considered as part of the terminal benefits. Arguing the first ground of appeal, Counsel for the Defendant submitted that the Presidential directive to public institutions to sell some of its houses to ‘sitting tenants’ was a government decision which also owned ZCCM Limited as the majority share holder. That the wishes of the majority owners as expressed by the Head of State cannot be ignored. He said that the law in this country is that the beneficial owners of the company enjoy over-riding authority over the Company’s affairs. He said that he was fortified in his submission by our decision in the case of ZCCM LTD VS RICHARD KANGWA AND OTHERS (1). That the presidential directive as an expression of the views of the majority shareholders, was intended to have the binding force of law. As to the second ground of appeal, Counsel said that the learned trial Judge did not consider the fact that under his conditions of service the Defendant was entitled to be paid service charges and a retention fee of K300,000.00 before he moved out of the house. That these entitlements constituted part of the terminal benefits as they could only be paid after separation. In reply Counsel for the Plaintiff submitted that the judgment of the court below could not be faulted. She said that the rules of ZCCM Limited on the sale of its houses restricted the sale to its employees and those employees who had been retired but not paid their terminal benefits. She said that the Defendant is contending that ZCCM Limited owes him KI.2 million for services it did not render to Plot 346/M a house which is not the subject of this action. She said that this is not unpaid terminal benefit but a separate arrangement that had nothing to do with terminal benefits and was in relation to a separate property. Counsel said that she was aware that the government was the majority shareholder in ZCCM Limited and that she was also aware of our decision in the case of ZCCM LTD VS RICHARD KANGWA AND OTHERS (1). She said that this case involved employees of a subsidiary of ZCCM and that we had made remarks, which were obiter, about the authority of the shareholders to dictate to the Directors of the company. She also referred us to the case of BEATRICE MUIMUI VS SYLVIA CHUNDA (2) which she said was on all fours with the present case. She said that in that case we had said that:- “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/quasigovernment organization. ” She said that in this case as in the MUIMUI case the Defendant had retired a year before the sale of houses commenced. She also referred us to the case of FELIX KANYIMBA VS MICHAEL MUSONDA (3), which also involved an employee of a subsidiary of ZCCM Limited. She urged us to dismiss the appeal with costs. We have considered the submissions of Counsel for the Plaintiff as well as the evidence on record. In the view that we take of this appeal, we do not intend to consider the grounds of appeal seriatim. As we see it, the issue in this appeal is whether or not on the facts of this case the Defendant was entitled to purchase the house in question under the rules that were promulgated for the purchase of ZCCM Limited houses. The Defendant retired from his employment with ZCCM Limited on 9th August 1996. The scheme for the sale of ZCCM houses to Zambian employees came into effect in 1997 and the rules governing the sale of the houses were promulgated in April 1997. We have perused these Rules and Rule 2(iii) under which the Defendant claims to be entitled does not apply to a retiree who has been paid his terminal benefits. The evidence on record is that the Defendant had been paid his terminal benefits before the scheme came into existence and the monies that he claimed were owed to him by ZCCM Limited had nothing to do with his terminal benefits which had already been paid to him. The learned trial Judge was on firm ground in finding that the Defendant was not entitled to purchase the house in question. We find no merit in the appeal which we dismiss. Given the circumstances of the Defendant as a retiree, we make no order as to costs. M. M. W. S. Ngulube CHIEF JUSTICE DEPUTY CHIEF JUSTICE 7