Madyenkuku and Ors v ZCCM Investment Holdings PLC and Ors (Appeal 85 of 2006) [2007] ZMSC 168 (23 March 2007)

THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE AND LUSAKA SCZ APPEAL NO. 85/2006 (Civil Jurisdiction) B E T WE E N: Binga Madyenkuku Aaron Mwale Hope Chisanga Mwaka Mwambazi Monika Maseko And ZCCM Investment Holdings PLC Maggie Zulu Bester K. Mpangala Ebern C. Chituta Opha C. Mulilo Munje Mutakwa 1st Appellant 2nd Appellant 3rd Appellant 4th Appellant 5th Appellant 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent Coram: Sakala, CJ., Chibesakunda and Chitengi JJS 8th November, 2006 and 23rd March, 2007. For the Appellants: Mrs. B. K. Mutti of Lukona Chambers For the 1st Respondent: Mr. S. C. Mwanashiku of M and M Advocates For the 2nd to the 6th Respondents: Dr. J. Mulwila of Ituna Partners JUDG MENT Sakala, CJ., delivered the judgment of the Court. Cases Referred to: 1. ZCCM Limited vs, Richard Kangwa and Others (2000) ZR 109 2. 3. 4. 5. ZCCM Limited and O. K. Simwinga vs. Francis Khama Appeal No. 71 of 2000 Zamcargo vs. ZCCM, SCZ No. 133 of 2001 Association of Copper Mining Employers and the Attorney General vs. Mineworkers Union of Zambia, SCZ No. 129 of 1998 Beatrice Muirnui vs. Sylvia Chunda SCZ No. 50, of 2000 This is an appeal against the judgment of the High Court dismissing the appellants claims for a declaration that they are entitled to purchase the properties they occupy, as sitting tenants, situate on subdivision 3 of subdivision 15 of Farm 377 a, Kabulonga, Lusaka; and for an order that the 1st respondent makes offers to the appellants to purchase the properties they occupy as sitting tenants, namely: Binga C. Madyenkuku-Flat No. 1, Aaron Mwale-Flat No. 2, Hope Chisanga-Flat No. 4, Mwaka Mwambazi-Flat No. 3 and Monica Maseko-House No. 377/15/1A. It is also an appeal against the court’s orders declaring that the second, third, fourth fifth and sixth respondents (Intervenors) lawfully purchased the properties which were lawfully offered to them by the first respondent; that they are entitled to damages and mesne profits; that the appellants should yield vacant possession; and that the Registrar of Lands issues titles to the Intervenors. The court further ordered that the damages should attract interest at long term Bank of Zambia deposit rate until payment; and that costs should follow the event. For convenience, we shall refer to the Appellants as the first, second, third, fourth and fifth Plaintiffs and to the 1st Respondent as the first defendant, and to the second, third, fourth, fifth and sixth Respondents as the Intervenors; which designations the parties were in the Court below. The salient facts of the case, as can be deduced from the pleadings, documentary and oral evidence, were not in dispute. All the plaintiffs were, at the material time, employees of Zamcargo Zambia Limited. The first defendant, formally known as the Zambia Consolidated Copper Mines Limited, was, at the relevant time, a holding company of Zamcargo Zambia Limited. The plaintiffs, while under the employment of Zamcargo Zambia Limited, were, among other things, provided accommodation by virtue of their employment with Zamcargo Zambia Limited, then a subsidiary company of the Zambia Consolidated Copper Mines Limited. Sometime in 1996, Zamcargo Zambia Limited was privatized and the 100% shareholding held by the 1st defendant was, pursuant to a Sale Agreement, transferred to the Management Buy out. Apart from the residential properties at Chirundu, all the other real properties, inclusive of the properties occupied by the plaintiffs, the subject of these proceedings, were excluded from the Sale Agreement. The plaintiffs, however, continued occupying the said residential properties; but without paying any rentals. Consequent to their occupation, they sought and expected letters of offers to purchase the residential units they occupied. To date, these offers have not been forthcoming. And todate, the properties in issue continue to be occupied by the plaintiffs. However, the houses the plaintiffs are occupying, have since been sold to the intervenors, the first defendant’s employees. The plaintiffs resisted to yield possession of the properties in issue to the intervenors. The plaintiffs instituted these proceedings claiming for a declaration that they were entitled to purchase the properties they occupy as sitting tenants and for an order that the 1st defendant makes offers to them to purchase the properties they occupy as sitting tenants. They also claimed for an injunction to restrain the 1st defendant, among other things, from evicting them. Suffice it to mention that the second, third, fourth, fifth and sixth intervenors joined the proceedings as buyers of the properties being claimed by the plaintiffs. They counter-claimed that they were the 1st defendant’s employees who were offered the properties and paid for them. They claimed for an order for possession, damages and mesne profits, interest and costs. The learned trial Judge considered the pleadings, the oral and documentary evidence on record as well as the arguments and submissions on behalf of the parties. The court found that it was patently clear that the Sale Agreement divested the residential properties from Zamcargo; that when the properties were being offered to the intervenors, Zamcargo Zambia Limited was no longer a subsidiary of the 1st defendant; that the Minister of Finance, as the representative of the shareholders, directed that tire properties be passed on to the 1st defendant; that the plaintiffs assumption that the Management of the 1st defendant acted without government concurrence, as shareholders, was unsupported by the evidence; and that the Minister of Finance would not have ordered the Zambia Privatization Agency to pass the properties to the 1st defendant if “Rules governing sale of ZCCM houses to Zambian employees” had not been approved by the Board, which was government controlled. The trial court dismissed all the plaintiffs’ claims and entered judgment in favour of the intervenors on the counter-claim. Hence the appeal to this court. The plaintiffs filed a memorandum of appeal containing four grounds of appeal. These are:- (1) that the learned trial Judge erred both in law and fact when he found that, at the time the properties were being offered, Zamcargo was no longer a subsidiary of the 1st defendant; (2) that the learned trial Judge erred both in law and fact when he concluded that the Minister would not have ordered the Zambia Privatization Agency to pass the properties to the 1st defendant if the “Rules Governing the sale of ZCCM houses to Zambian Employees” had not been approved by the Board, which was government controlled without giving due consideration to the fact that sale of houses to “Sitting tenants” across the country in local authorities and public institutions was the brain child and decision of the Government; (3) that the learned trial Judge erred both in law and fact when he concluded that the Appellants’ assumption that the Management of the 1st Defendants acted with concurrence of Government as shareholders was unsupported by the evidence; and (4) that the learned trial Judge grossly misdirected himself when he declared that the second, third, fourth, fifth and sixth Respondents (Intervenors) lawfully purchased the properties which were lawfully offered to them by the 1st Defendant without considering the rights that had accrued to the Appellants following tire Presidential directives on the sale of houses to “Sitting tenants” employed by wholly owned subsidiary companies of the 1st Defendant. On behalf of the parties, all the learned counsel filed written heads of argument based on the four grounds. Mrs. Mutti, on behalf of the plaintiffs, and Mr. Mwanashiku, on behalf of the 1st defendant, augmented their written heads of argument with oral submissions. Dr. Mulwila, on behalf of the intervenors relied only on written heads of argument as he did not appear in person. In the written heads of argument, Mrs. Mutti, on behalf of the plaintiffs, combined her arguments on ground one and two. The gist of the combined arguments on grounds one and two is that the critical issue was not when the properties were offered for sale; but when the decision was made to sell the properties in issue; that according to the evidence on record, there was a Presidential directive to the effect that the first option to purchase parastatal houses should be given to sitting tenants; that this evidence was unchallenged during trial; that it was not in dispute that the plaintiffs were sitting tenants in the properties in issue; that according to the evidence, government gave priority to sitting tenants in the sale of ZCCM Limited houses; and that ZCCM Limited paid the plaintiffs terminal benefits, thereby establishing a link between ZCCM Limited and the plaintiffs, making them eligible to purchase the houses they occupied as sitting tenants. It was submitted that in the circumstances of this case, the plaintiffs’ right to purchase the houses in issue accrued at the time of tire Presidential directive to sell the houses to sitting tenants, who included the plaintiffs since they were at the material time sitting tenants, who were also direct employees of a subsidiary company that was wholly owned by ZCCM Limited; and that the fact that the plaintiffs had ceased to be employees of a ZCCM Limited subsidiary at the time the properties were actually offered for sale was not such as to divest the plaintiffs of their accrued right to be given the first option to purchase die houses that they occupied as sitting tenants. It was further submitted on ground one that in the case of ZCCM Limited vs, Richard Kangwa and Others(1\ this court took judicial notice of the Presidential directives to sell houses to sitting tenants and ignored ZCCM Limited Rules governing the sale of ZCCM Limited houses to Zambian employees in so far as the same purported to exclude direct employees of subsidiary companies from buying houses they were occupying. It was pointed out that it is clear from the Kangwa case that the plaintiffs having been employees of a subsidiary company at the time of the Presidential directive to sell houses was made and also having been sitting tenants in those houses, they had an accrued right to be given the first option to purchase the houses. The cases of ZCCM Limited and O. K. Simwinga vs. Francis Khama(2) and Beatrice Muimui vs. Sylvia Chunda(6) were distinguished from the present case in that the two cases related to individuals who were merely sitting tenants; but had never been employees of ZCCM Limited or any of its subsidiaries. But in the instant case, the plaintiffs were prior to privatization of Zamcargo, employees of a wholly owned subsidiary of ZCCM Limited and that it is for this reason that ZCCM Limited even paid the plaintiffs terminal benefits after Zamcargo’s privatization. It was also submitted that since the plaintiffs had an accrued right to purchase the houses they were occupying, as sitting tenants, by virtue of the Presidential directive, such a right could not be taken away by the Rules made by the 1st defendant in April, 1997, which Rules came long after the right had already accrued. The case of Association of Copper Mining Employers and the Attorney General vs. Mineworkers Union of Zambia(:,), in which this court pointed out that it is trite law that an accrued right cannot be taken away, was cited in support of the submission. The summary of tire written heads of argument on ground three was that there was unchallenged evidence on record that tire Minister of Mines had suspended the sale of ZCCM Limited houses in April, 1998; that the decision to sell houses was a government decision; and that the sale was pursuant to Presidential directives. It was submitted that the decision by the Minister of Finance to direct Zambia Privatization Agency to pass the properties to the 1st defendant, to the disadvantage of the plaintiffs, who had an accrued right to purchase the same houses, was not consistent with government policy to empower Zambian sitting tenants to purchase the houses they occupied. It was pointed out that there was no evidence to show that government, as majority shareholders in ZCCM Limited, had given authorization for handing over the properties from Zambia Privatization Agency to the 1st defendant. On ground four, the gist of the written heads of argument is that the evidence on record was that the intervenors did not live in the properties offered to them to buy and that no inquiries were made about the properties. It was argued that the intervenors were aware that the properties in question were occupied by the plaintiffs; and that in the circumstances, the trial Judge grossly misdirected himself when he held that the intervenors lawfully purchased the properties offered to them by the 1st defendant. Mrs. Mutti concluded her written arguments on ground four by submitting that the intervenors were not bonafide purchasers for value without notice. She urged the court to allow the appeal with costs. Mrs. Mutti’s oral submissions were essentially a repeat of the written heads of argument. On grounds one and two she informed the court that the Presidential directive to sell the houses were made sometime in September, 1996; that at that time, the plaintiffs were sitting tenants in the properties in issue; that Zamcargo, the employer of the plaintiffs, was wholly owned by the 1st defendant; and that the plaintiffs occupied the properties by virtue of their employment. It was submitted that the plaintiffs’ right to purchase the houses accrued to them at the time the Presidential directives to sell the sitting tenants were made; and that the plaintiffs qualified as employees of a subsidiary company, wholly owned by the 1st defendant. On grounds three and four Mrs. Mutti adopted, in her oral submissions, the written heads of argument. The summary of the written responses on ground one by Mr. Mwanashiku on behalf of the 1st defendant was that it was an undisputed fact that at the time the offer for sale of the houses in issue was being made, the plaintiffs had long ceased to be employees of the ZCCM Limited subsidiary; and that the Share Sale Agreement was signed in December, 1996. He submitted that the trial Judge was on firm ground when he found that Zamcargo was no longer a subsidiary at the time of the sale. On ground two, the gist of the written responses by Mr. Mwanashiku was that the arguments on this ground did not seem consistent with the heading. It was, however, argued that when a decision is made, it is not always implemented immediately because it may not be practical to do so; that in the case of the government decision to sell the houses, rules and guidelines were subsequently developed to establish who actually qualified to purchase the houses, and that to argue that a right accrued to the plaintiffs immediately upon the decision being made is a misdirection, as government itself acknowledged when it sold its houses that there were people not eligible to benefit from the scheme, and that being a sitting tenant was not the sole criterion in deciding the sale. It was submitted that the time at which the decision was implemented was very critical as guidelines and parameters had to be determined first and only then could it be said that rights accrued to the beneficiaries. On ground three, the gist of the 1st defendant’s written responses was that the decision of the Minister of Finance to direct Zambia Privatization Agency to pass the properties to the 1st defendant, was on the evidence on record, not inconsistent with government policy. It was submitted that the trial court was, in the circumstances, on firm ground when it found that government concurred to the passing of the properties to the 1st defendant. The summary of the 1st defendant’s written response on ground four was that the plaintiffs had no tenancy agreement; they were not paying rent and are still not paying to anyone; and that when the Share Sale Agreement for Zamcargo was being made, no reference was made to the fate of the houses occupied by the plaintiffs other than that they had been excluded from the sale. It was submitted that the issue as to whether the intervenors made inquiries on the properties was not relevant as the plaintiff’s’ rights to occupy the houses fell away upon the sale of Zamcargo. In his oral response, on ground one, Mr. Mwanashiku submitted that there was ample evidence, and it was conceded that at the time of the sale of the houses to the intervenors, the plaintiffs were no longer employees of Zamcargo subsidiary of ZCCM Limited. On ground two, Mr. Mwanashiku pointed out that the thrust of the plaintiffs submissions was on accrued right at the time of the presidential pronouncement. He submitted that there were guidelines on sale of ZCCM Limited houses; and that the rights could only accrue at the time of the guidelines and rules, which in the present case, were made after privatization and completed in April 1997. It was further submitted that the fact of being a sitting tenant was not all that was needed. The case of ZCCM Limited and O. K. Simwinga vs. Francis Khama(2) was cited in support of the submission. On ground three, counsel relied on the written heads of argument but pointed out that the Ministry of Finance was the majority shareholder. On ground four, counsel relied on the written heads of argument. On behalf of the intervenors, Dr. Mulwila, who did not appear in court relied on written heads of argument earlier filed in court. The summary of the written responses by Dr. Mulwila on ground one of appeal is that it was not in dispute that Zamcargo was privatized on 9th December, 1996 when the Sale Agreement between the Minister of Finance, ZCCM Limited and the Management Buy out Team was executed; that Zamcargo ceased to be a subsidiary of ZCCM Limited; and that certain residential properties, including houses and flats, the subject of this suit, were entrusted in the Minister of Finance, who in turn, passed them over to ZCCM Limited. Dr. Mulwila pointed out in his written responses on ground one that on 14th January, 1998, ZCCM Limited offered the properties in issue to its employees, partly in exchange for the terminal benefits, and contracts of sale were executed on 26th January 1998. He submitted that in view of all the undisputed facts, the finding of the trial Judge that at the time ZCCM Limited offered the properties to its employees, Zamcargo was no longer a subsidiary of the 1st defendant could not be faulted. The gist of Dr. Mulwila’s written response to ground two of appeal was that the plaintiffs did not address their minds fully to the ground and that instead, they argued that they had accrued the right to be given the first option to buy the houses they were occupying by virtue of the Presidential Directive that the government and public institutions should offer their housing stock to sitting tenants. Counsel pointed out that this court had been called upon before in the case of Zamcargo vs. ZCCM Limited (4) to make a ruling on the properties that were owned by Zamcargo prior to privatization. He submitted that Zamcargo did not only cease to be a subsidiary of ZCCM Limited, but was divested of the properties which were specifically excluded from the sale. He pointed out that although the plaintiffs contended that they had accrued the right to buy the properties, the right to be entitled to purchase government or public institution houses was dependent on many factors as stated in the cases of Simwinga and Dr. Khama. He submitted that claims by the plaintiff that they had accrued the right to purchase the houses in dispute was untenable. On ground three, Dr. Mulwila’s written response was that the plaintiffs made an assumption that the Management of the 1st defendant acted without the concurrence of government as the shareholder. He submitted that the trial Judge rightly found that the assumption was not supported by evidence; that the evidence that the Minister of Mines suspended the sale of ZCCM Limited houses did not imply that Management of ZCCM Limited was acting without government concurrence; that the plaintiffs did not disclose the reasons by the Minister of Mines, and not the Minister of Finance, who was the shareholder on behalf of the government, suspended the sale of ZCCM Limited houses. Dr. Mulwila submitted that strictly speaking corporate governance of ZCCM Limited could only be seen through the actions of the Minister of Finance as the Shareholder and the Board of Directors, while both the Minister of Mines and the President were outsiders. Dr. Mulwila pointed out that under the Minister of Finance (Incorporation) Act, Cap. 588 of the Laws of Zambia, it is the Minister of Finance, as a corporation sole, who has the powers to hold shares on behalf of the government, and that any government policy inconsistent with the Act would be ultra vires and of no effect On ground four the summary of Dr. Mulwila’s written responses is that the trial Judge did not misdirect himself when he declared that the intervenors lawfully purchased the properties; that the plaintiffs had not shown what was unlawful about the purchase of the houses; that even if the plaintiffs had accrued rights, which is denied, the purchase would still have been lawful; and that as already argued no rights had accrued to the plaintiffs to purchase ZCCM Limited houses simply because they were sitting tenants; and that this court had already pronounced that Zamcargo, from which the plaintiffs trace their claim, had no right over the properties. Counsel submitted that the argument that the plaintiffs had accrued rights, which the trial Judge did not take into account was, therefore, misconceived. We have very carefully examined the judgment of the trial court, the evidence on record as well as the arguments and submissions on behalf of the parties by the learned counsel. We have deliberately delved into the arguments and submissions in great detail, simply to highlight and identify the issues for determination. The gist of grounds one and two, which Mrs. Mutti argued together, is that the trial Judge erred in law and fact by finding that at the time the properties in issue were being offered for sale, Zamcargo was no longer a subsidiary of the 1st defendant; and that the trial Judge erred in law and fact when he concluded that the Minister of Finance would not have ordered the Zambia Privatization Agency to pass tlie properties to tine 1st defendant if the Rules governing the sale of ZCCM Limited houses to Zambian Employees, had not been approved by the Board. We propose to deal with the counsel’s arguments on grounds one and two together. According to Mrs. Mutti, the critical issue was not when the properties were offered for sale; but when the decision was made to sell tlie properties. She submitted that before the offers were made, there was evidence of a Presidential directive to sell houses to sitting tenants; that tlie plaintiffs were sitting tenants at the time of the Presidential directive; and that they were employees of Zamcargo Zambia Limited, a subsidiary company of ZCCM Limited and therefore their right to purchase tlie houses had accrued at the time of the directives and thus qualified to purchase the houses in issue. According to the submissions of Mr. Mwanashiku and Dr. Mulwila on ground one, it was an undisputed fact that at the time of the offer for sale of the properties was made in January 1998, the plaintiffs had long ceased to be employees of a ZCCM Limited subsidiary as the Sale Agreement was signed in December, 1996; and that the trial Judge’s finding that Zamcargo Zambia Limited was no longer a subsidiary of the 1st defendant at the time of the sale could not be faulted as he was on firm ground. On ground two, Mr. Mwanashiku and Dr. Mulwila contended that the Presidential directive to sale government houses to sitting tenants was subject to Rules and guidelines being developed to establish who actually qualified to purchase the houses in issue; and that to argue that the right accrued immediately the directive was pronounced was erroneous. Both Counsel pointed out that the government itself acknowledged that there were people, though sitting tenants, but not eligible to benefit from the scheme, and that being a sitting tenant was not the sole criterion in deciding on the sale. It was submitted that the time at which the decision was implemented was very critical as guidelines and parameters had to be determined first. It was pointed out that Zamcargo did not only cease as a subsidiary of ZCCM Limited, but was divested of the properties which were specifically excluded from the sale agreement; and that the accrued right depended on many factors. On the evidence on record, we accept that it was common cause that sometime in September, 1996, there was a Presidential directive for government parastatal and quasi parastatal companies to sell their housing stocks to sitting tenants. ZCCM Limited, the 1st defendant was a parastatal company. It was not in dispute that at the time of the Presidential directive, Zamcargo was a wholly owned subsidiary of the 1st defendant; and that the plaintiffs were sitting tenants in the houses in issue. In our considered opinion, the question of whether the plaintiffs here were entitled to purchase the houses they were occupying depended on the attitude and the wishes of the majority owners of ZCCM Limited (that is the Government of the Republic of Zambia) as expressed by the Head of State or his representative, in this case the Minister of Finance, who was the ultimate majority shareholder in ZCCM Limited on behalf of government (see Kangwa case). There was, in this case, uncontroverted documentary evidence that on 9th December, 1996, after the Presidential directive, Zamcargo Zambia Limited was privatized through a Sale and Purchase of Shares Agreement between the Minister of Finance and ZCCM Limited on one part and the Management Buy out Team on the other part. Clause 6.1.2.(b) of that Agreement specifically provided that: “The Parties agree that: (b) all residential property is excluded from the Sale contemplated herein except residential properties at Chirundu.” According to the evidence, on 14th January, 1998, the 1st defendant offered the properties in issue to the intervenors; and the contracts of sale were executed on 26th January, 1998. We are satisfied on the evidence on record that at the time the properties in issue were being offered for sale to the intervenors, Zamcargo Zambia Limited was no longer a subsidiary of ZCCM Limited, the 1st defendant. It had been privatized. Equally, by the Sale Agreement, Zamcargo Zambia Limited did not only cease to be a subsidiary of ZCCM Limited, but was also divested of tlie properties that were specifically excluded by the Sale Agreement. The properties, according to the Sale Agreement, vested in tlie Zambia Privatization Agency on behalf of the government. Later, the Minister of Finance, on behalf of government, directed Zambia Privatization Agency to hand over the properties to ZCCM Limited. The finding of the learned trial Judge that at the time the properties were being offered for sale, Zamcargo Zambia Limited was no longer a subsidiary of ZCCM Limited cannot be faulted. Equally, the conclusion by the trial Judge that the Minister of Finance would not have ordered Zambia Privatization Agency to pass the properties to the 1st defendant if the Rules governing Sale of ZCCM Limited houses to Zambian employees had not been approved by the Board, cannot be faulted. The truth is that the Minister of Finance, the majority shareholder, with controlling interest in ZCCM Limited, sat on the Board that made the “Rules”. We cannot, therefore, accept that the critical issue was the presidential directive. In our view, what followed after the directive and at the time of offers were very crucial. After the directive, the Minister of Finance represented the Head of State. The Minister of Finance directed Zambia Privatization Agency to pass on the properties to ZCCM Limited. ZCCM Limited, in which the Minister holds majority shares on behalf of government made Rules on Sale of ZCCM Limited houses. Offers to the intervenors were made in 1998 by ZCCM Limited. Zamcargo did not only cease to be a subsidiary of ZCCM Limited; but also divested of the properties, which were specifically excluded by the Sale Agreement. On these facts, we hold that the issue of accrued rights became irrelevant. What was relevant were the intentions and the wishes of the majority shareholder, the Minister of Finance, as the representative of the Head of State. In our view, the issue in the instant case did not only center on the rights, accrued or otherwise, of the sitting tenants; but more importantly on the wishes of the ultimate majority owners, that is the Government of the Republic of Zambia, as expressed by the Head of State or his representatives which could not be ignored in the instant case. This is what we said in the case of ZCCM Limited vs, Richard Kangwa and Others(1) . In that case, we even took judicial notice of the fact that the sale of houses to “sitting tenants” across the country in local authorities and public institutional houses was the brainchild and decision of the government, the majority shareholder with controlling interest in these institutions. In the instant case, according to the sequence of the events, the majority shareholder was tlie one making the decisions. These decisions involved tlie Minister of Finance directing Zambia Privatization Agency to pass the properties back to ZCCM Limited who subsequently offered them to tlie intervenors. Thus, the conclusion by the trial Judge that the Minister of Finance would not have ordered Zambia Privatization Agency to pass the properties to tlie 1st defendant if the “Rules governing the Sale of ZCCM houses to Zambian employees” had not been approved by the Board, which was government controlled without giving due consideration to the fact that sale of houses to “sitting tenants” across the country in local authorities and public institutions was the brainchild and decision of the government cannot be criticized. This appeal based on grounds one and two cannot succeed. The two grounds are dismissed. In ground three of appeal, the plaintiffs’ complaint is that the court erred in law and fact by concluding that the plaintiffs assumption that the Management of the 1st defendant acted without concurrence of government as shareholders was unsupported by the evidence. The gist of the submission on ground three is that there was no express evidence by the defendants showing that government, as majority shareholder in ZCCM Limited, had given authorization for the handing over of the properties from Zambia Privatization Agency to the 1st defendant. The submission on behalf of the plaintiffs was that the trial Judge’s finding fell into the realms of speculation and was not supported by the evidence. However, in the same submission, it was conceded, on behalf of the plaintiffs, that a decision was made by the Minister of Finance to direct Zambia Privatization Agency to pass the properties to the 1st defendant. We have considered the submissions by all the learned counsel on ground three. We agree with the submission by Dr. Mulwila that corporate governance of ZCCM Limited could only be seen through tlie actions of the Minister of Finance. We also agree with the submission by Mr. Mwanashiku that the decision by the Minister of Finance to direct Zambia Privatization Agency to pass tlie properties to tlie 1st defendant was not inconsistent with government policy. The government must have concurred. Ground three of appeal also is dismissed. In ground four, the complaint was that the trial Judge misdirected himself when he declared that the intervenors lawfully purchased tlie properties lawfully offered to them by the 1st defendant without considering the plaintiffs’ rights after the Presidential directive. We have addressed our minds to the submissions on this ground. In the light of what we have discussed in grounds one, two and three, we find it unnecessary to delve into the submission based on this ground. Suffice it to repeat that the issue in the instant case went beyond accrued rights. The decision to sell the houses in issue was made by the majority shareholder, the government. On the evidence on record, we find no misdirection in the declaration that tire intervenors lawfully purchased the houses. Ground four of appeal is also dismissed. All the four grounds of appeal having been unsuccessful, the appeal is dismissed. On the facts of this case, we made no order as to costs. E. L. SAKALA CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE k P^CHITENG| SUPREME COURT JUDGE