Mwale v Zambia Industrial & Another (Appeal 176 of 1999) [2001] ZMSC 6 (17 January 2001)

ANDERSON STEPHEN MWALE AND ZAMBIA INDUSTRIAL AND MINING CORPORATION LIMITED SUPREME COURT SAKALA, ACTING D. C. J. ST SEPTEMBER, 2000 AND 18 (APPEAL NO. 176/99) TH JANUARY, 2001 Flynote Contract Law - whether Contract of Sale existed - specific performance. Headnote This was an appeal against the judgment of the lower court dismissing the appellants claims for a declaratory order and for specific performance of a Contract of Sale of a house on the ground that there was no formal agreement or offer of sale by the Respondent to the Appellant. Held: There was no informal agreement or any intimation or conduct suggesting any offer of sale by the Respondent to the Appellant. Appeal dismissed. Z. C. C. M. v. Kangwa and Others S. C. Z. Judgment No. 25 of 2000. Case referred to: 1. For the Appellant For the Respondent __________________________________ Judgment SAKALA, Acting Deputy Chief Justice, delivered the judgment of the court. E. B. Mwansa, E. B. M. Chambers I. Z. Mbewe, I. Z. Mbewe Associates This is an appeal against the judgment of the High Court dismissing the Appellant's claims for a declaratory order and for specific performance of a contract of sale of house No. 135/B Chinyunyu Road, Emmasdale, Lusaka, on the ground that there was no informal agreement or any intimation or conduct in regard to the offer of sale by the Respondent to the Appellant and that the question of the Appellant benefiting as a sitting tenant should have been included in the contract for the Appellant to qualify for the discretionary remedy. The Appellant gave evidence in support of his claim. The Respondent opted not to give oral evidence and not to call witnesses. The brief facts of the case, as can be ascertained from the pleadings, documents and the Appellant's only oral evidence, are that by a letter dated 22 March, 1993 the Respondent offered the Appellant a guest wing and servant quarters of house No. 135, Chinyunyu Road, Emmasdale for rent at K30,000 per month payable three months in advance. He lived in the guest wing and servants quarters for five years. Sometime between May and June, 1995 there was an exchange of correspondence between the joint liquidator of the Appellant concerning rent arrears. nd It is pertinent to observe that the Appellant was not an employee of the Respondent and that the main house situated at plot 135/B Chinyunyu, Emmasdale was at the material time occupied by an employee of the Respondent company. Thus, in August, 1996 in accordance with the Respondent's scheme relating to sale of houses, the employee of the Respondent living in the main house was offered, for sale, the whole property in issue. There is some evidence suggesting that the Appellant, who was merely a tenant of the guest wing and servants quarters, had also expressed some interest to purchase the house. There is further evidence that the Appellant protested bitterly when the Respondent did not make an offer to sell the house to him. The learned trial judge considered all the evidence before him. He found that there was no sale agreement between the Appellant and the Respondent. We have no hesitation in agreeing with his finding on the facts set out. The court also found that, the Appellant, as a non employee of the Respondent and merely a tenant could not have been a beneficiary of the Respondent's scheme to sale the houses to their employees. We also agree with his finding. We are satisfied that the Appellant did not qualify to purchase the house under the scheme in place at the material time. The court also found that there was no informal agreement or any intimation or conduct suggesting any offer of sale by the Respondent to the Appellant. The court subsequently dismissed the whole claim, hence this appeal. We heard arguments on behalf of the Appellant criticizing the learned trial judge's findings. Authorities in support of those arguments were cited among them, this court's decision in Z. C. C. M. v. Kangwa and others (1) where this court took judicial notice that Z. C. C. M. was wholly owned by the State and that the State through the head of State, expressed and directed that the property owned by Z. C. C. M. be sold to the sitting tenants. We have no hesitation in pointing out that the learned counsel overlooked the issues in that case. In any event, the Respondents in that case were employees of a Z. C. C. M. subsidiary company which was not the case here. On the facts as summarized in this judgment, this appeal cannot succeed. It is dismissed with costs. _____________________________________