Benson Phiri v Livingstone City Council (Appeal 221 of 2000) [2001] ZMSC 118 (22 November 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL 221 /2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: BENSON PHIRI APPELLANT AND LIVINGSTONE CITY COUNCIL RESPONDENT CORAM: NGULUBE, CJ. LEWANIKA A. DCJ, CHIRWA JS On 12th July, 2001 and 22nd November, 2001. For the Appellant: For the Respondent: Ms LE. SUBA of Kuta Chambers F. CHUNG A of Silweya and Company JUDGMENT LEWANIKA A. DCJ, delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court refusing to grant the Appellant the following reliefs:- 1. 2. a declaration that the intended repossession of House No. DNA 72 Dambwa North Township, Livingstone is unlawful, wrongful, null and void ab initio and of no consequence whatsoever in law; specific performance for the sale of House No. DNA 72 Dambwa North, Livingstone by the Respondent to the Appellant. - J2 - The evidence on record is that the Appellant was a tenant of the house in issue since 1986. Following the Government's decision to sell Council houses to sitting tenants in June 1996 the Appellant offered to sell the house to the Appellant by letter dated 5th July, 1996 at a price of K2,800,000.00 less 20% discount. The Appellant duly accepted the said offer and paid the requisite 10% deposit in terms of the offer. The case for the Appellant was that soon after he had paid the deposit, he fell ill which necessitated his going to his home village to be treated with traditional medicines. Prior to his going to the village the Appellant arranged with one Patrick MWIINGA to stay in the house as a caretaker and pay the electricity and water charges. Upon his return from the village the Appellant went back to the house and stayed with MWIINGA as the latter had not yet found alternative accommodation. In September, 1998, the Respondent evicted the Appellant and MWIINGA from the house on the ground that the Appellant had sublet the house without the authority or consent of the Respondent and was thus in breach of the tenancy agreement. Prior to his eviction, the Appellant had paid a further K300,000.00 towards the purchase price. - J3 - The case for the Respondent was that after the house had been offered to the Appellant and after he had paid the 10% deposit, the Appellant had without its authority or consent, sublet the house to MWIINGA at a rental of KI00,000.00 per month and that this was contrary to the tenancy agreement. Upon discovery of this anomaly the Respondent evicted both the Appellant and MWIINGA. The Respondent felt that it was no longer obliged to sell the house to the Appellant and converted the 10% deposit into rent and refunded the K300,000.00 to the Appellant. The Appellant then instituted these proceedings in the court below and the learned trial judge found that the Appellant had sublet the house without the consent of the Respondent and was in breach of the tenancy agreement, that the Respondent was entitled to evict the Appellant from the house and that the Appellant was not entitled to an order of specific performance. Counsel for the Appellant has filed three grounds of appeal which she argued very ably before us. We are also indebted to counsel for the Respondent for his persuasive arguments. We do not propose to go into these arguments in extensio for reasons which will become apparent later. - J4 - It is common cause that by letter dated 5th July, 1996 the Respondent offered to sell the house in question to the Appellant and the Appellant accepted the said offer and paid the requisite 10% deposit. From the time that the offer was made and accepted the relationship between the Appellant and the Respondent was no longer that of landlord and tenant but that of vendor and purchaser. The tenancy agreement had been superceded by the agreement to sell the house. The Respondent was therefore not entitled to rely on a clause in the tenancy agreement or a breach thereof to rescind the contract to sell the house to the Appellant. The contract of sale could only be rescinded if the Appellant were in breach of a term or condition of the contract of sale. There is no evidence of such a breach from the evidence on record. The learned trial Judge was in error when he found that the Respondent was entitled to rely on a clause in a tenancy agreement which had been superceded by another agreement and for these reasons we would allow the appeal and set aside his decision. We restore the contract between the Appellant and the Respondent and grant specific performance to the Appellant of the agreement to sell the house on terms contained in the offer - J5 - dated 5 th July, 1996 which was accepted by the Appellant, We also award costs to the Appellant. M. M. S. W. Ngulube CHIEF JUSTICE D. M. Lewanika ACTING DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE