Charles Lubasi v Konkola Copper Mines (Appeal 140 of 2007) [2009] ZMSC 150 (30 October 2009)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 140/2007 HOLDEN AT LUSAKA, NDOLA, KABWE (Civil Jurisdiction) BETWEEN: CHARLES LUBASI AND APPELLANT KONKOLA COPPER MINES RESPONDENT Coram: Sakala, CJ, Chitengi, and Mwanamwambwa, JJS On 2nd December, 2008 and 30th October, 2009. For the Appellant: In Person For the Respondent: Mr. M. Ndulo, Senior Legal Counsel. JUDGMENT Chitengi, JS, delivered the Judgment of the court. Case referred to: 1. Moses Phiri and Others Vs. Zambia Consolidated Copper Mines Limited 1994/HN/698 (Unreported). 2. Kitwe City Council Vs. William Ng’uni (2005) Z. R. 57. This is an appeal against the judgment of the High Court which upheld the judgment of the Subordinate Court which dismissed the Appellant’s claim for alleged rentals owed by the Respondent to the Appellant in respect of house number 63-6th Street, Nchanga South, Chingola. The facts of this case as given by the Appell; .-!|P that the Appellant previously worked for Zambia Consolidated Copper Mines Limited (ZCCM) and when the Respondent came into being and took over ZCCM the Appellant continued working for the ji Respondent. While working under ZCCM, the Appellant bought a house from ZCCM known as House No.63-6th Street, Nchanga, Chingola. At the time the Appellant bought the house, an expatriate employee of ZCCM was living in the house. When the Respondent took over ZCCM the expatriate employee, like the Appellant, continued working for the Respondent. The expatriate employee continued living in the Appellant’s house. On 20th May, 2000 the Respondent entered into an agreement whereby the Appellant would let his house to the Respondent for KI,256,000.00 from 1st April, 2000. However, despite this agreement, the Appellant was not paid the rent amounting to K7,536,000.00 and consequently on 31st December, 2000, he brought an action in the Subordinate Court, Chingola, before a Magistrate Class One. He was successful in his claim. It appears after that the matter went on appeal up to the Supreme Court which ordered a retrial. Hence, the Appellant commenced the action afresh before the Senior Resident Magistrate, Kitwe. When he was cross-examined, he said the Respondent rented the house from him before his transfer from ZCCMto the Respondent and a tenancy agreement was executed. During the first two quarters, the Respondent continued paying rent at the old rate despite agreeing to the new rate of KI,256,000.00 per month. He said the Respondent took over the responsibility of paying rent on 1st April, 2000 and continued paying rent after 1st April, 2000. The verbal agreement of May, 2000 was reduced to writing on 12th October, 2000 and executed but it was effective from 1st April, 2000. He lived in House No.29-8th Street from February to September, 2000, that is eight months. House J2 No.29-8* Street belongs to Mr. Muvunda (DW1). He said he was permitted by Mr. Muvunda and Mr. Mwiche to occupy the house. However, Mr. Muvunda did not give him a document; Mr. Muvunda gave him a statement which he (Mr. Muvunda) gave to the Respondent. He was given keys to House No.29-8th Street by his boss one Mr. Semilla. He said at one time he had nowhere to live and that is how he was put in House No.29-8th Street. According to his conditions of service he was entitled to K260,000.00 housing allowance per month. He denied that House No.29-8* Street was rented to the Respondent but he said his boss, Mr. Semilla, was paying the rentals. He was not entitled to live in the Respondent’s rented house. He was paid housing allowance but less than what was agreed upon. He was paid rentals in advance. He was paid rentals from 1st April, 2000 to 30th June, 2000. He lived in the Respondent’s house for the period he claims K7,536,000.00. He lived in House No.29-8th Street before the Respondent came and when the Respondent came they went behind his back. He was allocated House No.29-8th Street by his boss and he never paid rent to Mr. Muvunda. Re-examined he said he moved in House No.29-8* Street on 2nd February,2000 and he was given the house keys at work by his boss Mr. Semilla. He said Mr. Semilla offered him the house because Mr. Semilla said the rent he was getting from his house was not enough to rent a decent house. After hearing rumours that people were going behind his back he moved out of House No.29-8* Street on 30* September, 2000. At that time the Respondent transferred his rentals to Mr. Muvunda without J3 informing him. The only agreement he knows is the one between him and the Respondent and not about Mr. Muvunda’s house. If there is any problem on House No.29-8* Street, Mr. Muvunda should sue him. The Respondent called two witnesses, Mr. Muvunda (DW1) the owner of House No.29-8th Street and Chali (DW2) at the material time the Respondents Divisional Secretary under whose portfolio fell the responsibilities for properties and rentals. According to Mr. Muvunda, in 1999 he was in the employment of ZCCM at Nchanga Division. In that same year he was transferred to Nkana Division. He left his House No.29-8th Street on 28th January, 2000 in the care of his relatives with whom he left the keys. Later, he contacted ZCCM to find out if they were interested to rent his house. In February, 2000 a Mr. Mwiche, Housing Officer for ZCCM contacted him saying ZCCM had housing problem and would like to rent his house. He agreed but a lease was not executed. In March, 2000 he went to the house to check on his back yard maize garden and found that the Appellant had been put in the house by ZCCM. He did not find the Appellant at the house. He only found the Appellant’s wife. The Respondent paid him rent for the period 1st April to December, 2000. He never rented the house to the Appellant. He never saw the Appellant and he never got any rent from the Appellant. He denied getting rent at KI.236.000.00 per month consolidated in one payment. Cross-examined he denied claiming money from the Appellant. He said his client was the Respondent and not the Appellant. He does not know the Appellant’s house. Re­ J4 examined he said there was no agreement between him and the Appellant. The Appellant did not surrender the house keys to him. He got the keys from one Mr. Kabombo who he found in the house when he went to his house in 2001. The evidence of Mr. Edon Gabriel Chali, the Respondent’s second witness and Divisional Secretary at the material time is that he was, inter alia, responsible for properties and rentals. He worked for ZCCM in the same position before >the Respondent took over with effect from 1st April, 2000. Under ZCCM there were a number of houses for rent and one of these houses was House No. 29-8* Street belonging to Mr. Muvunda (DW1). The Respondent took over whatever arrangements there were before 1st April, 2000. The Respondent rented the Appellant’s House No.63-6th Street, Nchanga, Chingola for its expatriate employee at the monthly rent of KI,256,000.00 and paid rent to the Appellant. The Respondent also rented Mr. Muvunda’s House No.29-8th Street at the monthly rent of KI,256,000.00. He prepared the lease documents for Mr. Muvunda’s house. Mr. Muvunda was paid his rent for the period 1st April, 2000 to 31st December, 2000. Rented houses were for expatriate staff. The Appellant was not entitled to live in a company rented house. The Appellant was only entitled to housing allowance. He denied that the dealings with DW1 were not official and without the knowledge of the company. Later, when he discovered that the Appellant was staying in House No.29-8th Street he paid what rent was due to the Appellant in respect of House No.63-6th Street to DW1 in order to correct the position. The Appellant was not entitled to stay in a house paid for by the company and the J5 Appellant did not surrender the housing allowance for the period. The Appellant cannot claim K7,000,000.00 from the Respondent. It is the Appellant who should pay the Respondent as counter- claimed. Cross-examined he said he was not aware that the Appellant was occupying DWl’s house before the Respondent took over. He said when it was discovered that the Appellant was staying in a company rented house, management authorized him to transfer rentals due to the Appellant to DW1. All instructions he got were not in writing; some instructions were verbal. On this evidence the learned Senior Resident Magistrate found that the Appellant stayed in a company rented house when he was not entitled to and that at the same time the Appellant got housing allowance. The learned Senior Resident Magistrate also found that it would be unjustly enriching the Appellant if he was paid rent for his House No.63-6th Street for the period he claimed when he was staying in House No.29-8th Street which was company rented. Dissatisfied with the judgment of the learned Senior Resident Magistrate, the Appellant appealed to the High Court. The High Court dismissed the Appellant’s appeal and affirmed the learned Senior Resident Magistrate’s judgment. After this the Appellant sought a review of the High Court judgment. The High Court dismissed the Appellants application for review. The Appellant now appeals to this court. The Appellant advanced four grounds of appeal. The first ground is that the High Court erred in law and fact by allowing the Respondent, Konkola Copper Mines, transfer J6 rental payment to Mr. Muvunda who was not part of the tenancy agreement between the Respondent KCM and the Appellant. The second ground of appeal deals with the alleged deliberate failure by the learned Senior Resident Magistrate to record the evidence correctly. We can dispose of this ground of appeal before proceeding further and without even re-stating the submissions in detail. The allegation by the Appellant in this ground Qf appeal is very serious. A party cannot allege that a judicial officer deliberately did not record the evidence correctly without calling evidence to substantiate that the record does not accurately contain what transpired during the trial because the presiding judicial officer deliberately mis-represented the evidence and stating the reason for such conduct by the Judicial officer. We repeat this is a serious allegation to make. The fact that a Magistrate or a Judge does not accept a party’s story does not justify a party to make such a serious allegation. Like in this case, the learned trial Senior Resident Magistrate did not accept the Appellant’s story. This ground of appeal is not only unmeritorious but also malicious and we dismiss it. The third ground of appeal is that the Subordinate Court and the High Court erred in fact and law by resolving the matter against the weight of evidence on record which is well documented from the Appellant and consider verbal, contradicting and false evidence from the evidence which is not even clear. The main issue is illegal transfer of rent for his House No.63-6th Street to House No.29-8th Street belonging to Mr. J7 Muvunda. He was authorized by the Respondent to stay in a company rented house. The fourth ground of appeal is that it is surprising to see that the Subordinate Court and the High Court in their respective judgments they have mentioned that the Respondent erred in the manner it handled the issue of rentals or channelled my rentals to Mr. Muvunda but deliberately failed to enforce the Respondent to honour my claim for unknown reasons. Now^it is my humble prayer that this court may enforce the Respondent to honour my claim with interest. The Appellant filed written heads of argument on which he relied. Mr. Ndulo, learned Counsel for the Respondent, relied on the submissions he made in the High Court. The gist of the Appellant’s written heads of argument on ground one is that the rent for his house should not have been transferred to Mr. Muvunda’s house without his consent. He pointed out even the learned Senior Resident Magistrate observed the irregularity but failed to make a good decision. He submitted that there was no evidence to show that he was accommodated in Mr. Muvunda’s house by the Respondent. Further, he submitted that there is no evidence that ZCCM rented Mr. Muvunda’s house. The Appellant then referred to the extraneous matter of the Respondent’s employees having benefitted from the transaction. He pointed out that there was no tenancy agreement between ZCCM and Mr. Muvunda or the Respondent and Mr. Muvunda for Mr. Muvunda to receive rent from the Respondent. He pointed out further that if there was an agreement between the Respondent and Mr. Muvunda, he was J8 not part to it to warrant the withholding of rent, an act which he said was illegal. The written argument on ground three is that there is no evidence that the Respondent rented Mr. Muvunda’s house during the time he lived in the house. He said the Respondent’s witnesses lied when they said that oral agreements were allowed in the Respondent’s office. The Appellant then talked about the lies of DW1 and DW2 in the Subordinate Court. After that Appellant praised Magistrate Class One at Chingola who presided over the earlier abortive proceedings and spoke dimly of the learned Senior Resident Magistrate. The Appellant did not argue ground four but the arguments on the other grounds adequately cover ground four. The gist of Mr. Ndulo’s submissions is simply that on the evidence it is clear that the Appellant lived rent free in a house rented by the Respondent while getting housing allowance from the Respondent and at the same time getting rent for his House No.63-6* Street. It was Mr. Ndulo’s submission that the Appellant cannot be allowed to have all these benefits because doing so would amount to unjust enrichment. Mr. Ndulo then cited the case Moses Phiri Vs. ZCCM Limited111 on unjust enrichment. We have carefully considered the evidence that was before the learned trial Senior Resident Magistrate, the judgment appealed against and which judgment was confirmed by the High Court and the judgment of the learned Appellate Judge and the submissions by the Appellant and Counsel for the Respondent. J9 In the view we take of this appeal, the grounds of appeal can be dealt with together because they have a common theme which is that the learned Senior Resident Magistrate erred when she ruled that the rentals due to the Appellant were correctly paid to Mr. Muvunda, the owner of House No.29-8th Street in which the Appellant was living when he was not entitled to and at the same time getting housing allowance from the Respondent. The main complaint by the Appellant is that the judgment of the learned Senior Resident Magistrate was against the weight of the evidence that was before her; that the witnesses perjured themselves and that the learned Senior Resident Magistrate did not properly evaluate the evidence. However, after reading the record of evidence and the judgment of the learned Senior Resident Magistrate, we cannot say that her judgment was against the weight of evidence and that she did not properly evaluate the evidence. The judgment is well supported by the evidence which the learned Senior Resident Magistrate accepted. The judgment also shows to us that the learned Senior Resident Magistrate properly evaluated the evidence. On the Respondent’s witnesses not telling the truth, all we can say is that the learned Senior Resident Magistrate had the opportunity to observe and listen to the Appellant and the witnesses give their evidence and decided who to believe and who not to believe. As an appellate court it is trite that we cannot interfere with conclusions arrived at by a trial court on credibility. The result is that we must take the evidence as accepted by the learned Senior Resident Magistrate after seeing and hearing the witnesses. The learned Senior Resident Magistrate found that the Appellant occupied J10 House No.29-8th Street belonging to Mr. Muvunda (DW1); that the occupation of this house by the Appellant did not constitute a tenancy agreement between the Appellant and the Respondent or between the Appellant and Mr. Muvunda; that the Appellant admitted not paying any rent to either the Respondent or Mr. Muvunda; that the Appellant did not forfeit his housing allowance under his conditions of service with the Respondent and that as a local staff he was not entitled to, live in a house rented by the Respondent. Further, the learned Senior Resident Magistrate found that the Respondent exhibited several lapses in the way it handled the matter of the Appellant staying in the house to which he was not entitled. However, the learned Senior Resident Magistrate found that the lapses notwithstanding, it would be inequitable to allow the Appellant to take advantage of the lapses and derive benefits from the lapses to which he is not entitled. She said this would lead to unjust enrichment of the Appellant. We endorse this analysis by the learned Senior Resident Magistrate and we cannot, therefore, fault her when she held that the Appellant cannot recover the rent he claimed. As Mr. Ndulo rightly argued in his submissions the Appellant cannot at the same time receive rent for his House No.63-6th Street, receive house allowance from the Respondent and receive free accommodation from the Respondent over the same period in question. As we said in Kitwe City Council Vs. Ng’uni12*, it is unlawful to confer a benefit on a party to which he is not entitled and it amounts to unjust enrichment. That would be the position in this case if we allowed the Appellant to recover the jii house rent in respect of his House No.63-6th Street which was paid to Mr. Muvunda. In the Kitwe City Council case(2), the issue was one of pension benefit and salary but the principle equally applies to any other benefit to which the claimant is not entitled. There was no illegality in the circumstances of this case in the Respondent paying the rent due to the Appellant to Mr. Muvunda. We find no merit in this appeal and, accordingly we dismiss > it with costs to the Respondent to be agreed upon and in default to be taxed. E. L. SAKALA CHIEF JUSTICE SUPREME COURT JUDG SUPR GI WA RT JUDGE J12