Muimui v Chunda (Appeal 50 of 2000) [2000] ZMSC 154 (5 September 2000)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 50/2000 AT LUSAKAINDOLA (CIVIL JURISDICTION) BETWEEN: BEATRICE MUIMUT APPELLANT AND SYLVIA CHUNDA (cid:9) RESPONDENT Coram: (cid:9) Ngulube, CJ, Chirwa and Chibesakunda JJS on 6th June 2000 and 5th September 2000. For the Appellant: Mrs C Kafunda & Mr M Nyirenda of Messrs Kafunda and Company, Ndola For the Respondent: Mr W Nyirenda, Messrs Ezugha Musonda and Company JUDGMENT Chibesakunda JS delivered the judgment of the Court This is an appeal against judgment of the High Court, Kitwe, granting vacant possession to the respondent. The facts on which there was common ground before the lower court are that the respondent who was an employee of Zambia Consolidated Copper Mines (ZCCM) bought House No. 14A Liberia Street, Nkana East, Kitwe from ZCCM. The appellant whose husband was a former employee of ZCCM was in occupation of the same house as an incidence of her husband's employment with ZCCM. On 10th December 1998 the respondent took out originating summons claiming vacant possession against ZCCM and also against the respondent in Kitwe. On 16th December 1998 the appellant also sued ZCCM in Ndola seeking a declaration that she was the sitting tenant in House No. 14A, Liberia Street, as such was entitled to be given first offer to buy the same house as her husband was an employee of ZCCM. - J2 - It was however common ground that the appellant's husband had ceased to be an employee of ZCCM although she and her husband remained in occupation on humanitarian grounds. It was also common ground that the appellant was not actually the employee of ZCCM but her husband and that the terminal benefits had been paid to them by the time ZCCM sold the house to the respondent. It was equally established before the court that ZCCM after changing ownership advised the appellant of this change of ownership and then advised the appellant to negotiate a tenancy agreement with the respondent. The learned trial Judge sitting in Kitwe on affidavit evidence granted vacant possession to the respondent. The appellants applied under Order 39 of the High Court Rules to the same Judge to review his judgment on grounds that by the time the Kitwe High Court granted vacant possession, the matter in the Ndola High Court had advanced and an injunction had been granted to the appellant restraining ZCCM and the respondent from evicting the appellants. The learned trial Judge in Kitwe rejected this application this is why the appellant has come to this court attacking the order of the High Court on the following grounds:- 1) That the learned Judge in the court below misdirected himself in law when he proceeded to hear and grant vacant possession of this house when he had knowledge of an order of injunction granted in Ndola. In support of this argument they argued that already from the outset of the hearing of the application for vacant possession for the respondent the court in Kitwe knew that there was another action on the same facts before the High court in Ndola and that because of that action in Ndola the appellants were protected because of the issuance of the injunction. Therefore, it was a misdirection to have made the order granting vacant possession. According to them this position is fortified by Order 4 rule 9 of the Rules of the Supreme Court; - J3- 2) That the learned trial Judge further misapprehended the law when he went ahead and granted vacant possession of the premises summarily on affidavit evidence when the case before him involved contentious questions and issues which could only have been resolved conclusively by way of viva voce evidence before the court. They argued that it was wrong for the learned trial Judge to have relied on affidavit evidence to resolve issues, which could only have been resolved by observing the demeanor of witnesses. They pointed out to us some issues such as the rules relating to selling houses, on who qualified and who did not qualify and argued that it was unsafe for the court to have summarily decided on those issues and granted vacant possession. According to them the lower court should have referred these issues to a full trial and that had the court done that all these issues which they are now contending would have been given a chance for full hearing and representation. 3) That the trial court fell in gross error in fact and law when it ruled further that the respondent was the owner of the house when she did not validly and legally acquire the same in accordance with the guidelines set by Zambia Consolidated Copper Mines Limited guidelines on the sale of their Housing Units as she was not a sitting tenant. They argued that under the Government of the Republic of Zambia Policy of empowering employees of Govemment/Parastatals where Government and quasi-Governmental Organizations are the vendors, being a tenancy/occupier is a condition sine qua non for the purchase of houses. According to them the respondent was not a sitting tenant and this point was brought to the attention of the lower court. The lower court ignored that point and therefore fell into gross error. In response the learned counsel for the respondent argued that the court was on firm ground because:- - J4 - 1) The appellant knew even when she commenced proceedings in Ndola that there was another matter involving all the parties before the Kitwe High Court on the same facts. The appellant and her counsel attended the court sittings in Kitwe. The learned counsel also brought to our attention the fact that when the matter was brought in Ndola High Court the respondent was not made a party to it initially. The respondent was not a party to the proceedings even when the appellant obtained the injunction in Ndola on the I 11h of March 1999. Therefore, the injunction was only against ZCCM. The learned counsel submitted that in fact the appellant was forum shopping that is why she took out legal process in Ndola - a practice, which is an abuse of process. 2) The contract to sell that property to the respondent was dated 3'' December 1997 and that at the time this was done the appellant was only allowed to stay in the house as wife of the former employee of ZCCM on humanitarian consideration. Her licence to stay in the house had come to an end as can be seen on page 28 of the record Mr. Muimui's employment with ZCCM had come to an end. His terminal benefits had been paid. Therefore the respondent properly took out summons under Order 113 of the Rules of the Supreme Court. 3) In response to ground 3 - It is his submission that the learned trial Judge was on firm ground to rely on affidavit evidence because the appellant established no evidence before the court on ZCCM guidelines and that even if there were any guidelines, these only applied to the employees. He also submitted that the appellant who was represented raised no objection to this procedure taken by the High Court. According to him the court had all the evidence that consideration had moved from the respondent to ZCCM and at no time had ZCCM disputed the fact that the property in question now belonged to the respondent. The fact that the title deeds had not been given to her should not be viewed by this court as anything to challenge the respondent's entitlement to this property. - J5 - The evidence on record had established the fact that the respondent purchased the property and that she had title to the property. We have looked at the evidence and the arguments before us. We firstly wish to agree with the learned counsel for the respondent that counsels as a matter of etiquette should not abuse court process by shopping for a better forum. Once a matter is before the court in whatever place it is that process if properly before that court should be the sole court to adjudicate all issues involved. All interested parties have an obligation to bring all issues in that matter before that particular court without resorting to shopping for forum in other parts of Zambia. This is an abuse of process which should not be accepted. Secondly, in this appeal we consider it important in order to do justice to scrutinize the chronological sequence of events. At page 28 of the record there is evidence which was not challenged that by the time this house in question was sold to the respondent the appellant had no legal basis to remain in the house although it is a well established legal practice that any bona fide purchaser of property buys that property with existing encumbrances. In this case there was none. We do not subscribe to the argument that being a sitting tenant is the sole criterion in purchasing of a Government- quasi Government houses 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 Organization. It has been argued that Order 113 of the Rules of the Supreme Court of Britain was wrongly invoked. We accept that argument but because we hold that the evidence established bona fide, purchasing of the house by the respondent at the time the appellant remained in the said house only on humanitarian ground, we find no merit in the appeal. We dismiss the appeal with costs. M M S W Ngulube CHIEF JUSTICE D K Chirwa SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE