Constina Lufunda v Morten Chiiko Simuunza (APPEAL NO. 95 OF 2007) [2009] ZMSC 177 (30 January 2009)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 95 OF 2007 J1 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CONSTINA LUFUNDA APPELLANT AND MORTEN CHIIKO SIMUUNZA RESPONDENT Coram: Chirwa and Mushaba ti. JJS. and Kabalata AJS On 3rct June, 2008 and 30th ,January, 2009 For the Appellant: In Person For the Respondent: Mr. V. Michela of National Legal Aid Clinic for Women JUDGMENT Mushabati, JS, delivered the judgment of the Court. Case referred to: l. Zulu vs. Avondale Housing Project Limited (1982) Z. R. This is an appeal against the High court judgment of 25th October, 2006 dismissing the Appellant's claim. J2 In this judgment we still continue to refer to the appellant as the Plaintiff and the Respondent as the Defendant the designation they held in the court below. The Plaintiffs claim was a declaratory order that she was the legal tenant of Flat No. 12 Ingwe Court, Kitwe. The evidence in support of the Plaintiffs case can be summarized as follows. The Plaintiff, a teacher in the Ministry of Education, and her fellow teacher Albertina Mwandamina were allocated Flat No. 12 Ingwee Flat on 1st March, 1999 and shifted therein on 26th March, 1999. Prior to their occupying this flat, the late Catherine Chiiko occupied it before vacating it when she got married. She died on 30th December, 1998. The Plaintiff and her house mate were approached by the Administrator of the estate of the late Ms. Chiiko claiming that the late Chiiko still occupied the flat, at the time of her death. P. W.3, Eddy Sakala Kamboi, the District Buildings Officer in the Ministry of Education, told the court that when the said flat was allocated to the Plaintiff and her house mate it still belonged to the Ministry of Education because it was still an Institutional one. J3 P. W.4, Amon Eddie Jere , an Executive Officer in the Ministry of Education, said pronouncements by the President, in 1996, for the sale of houses was for pool houses only and did not include Institutional houses. When Flat No. 12 was allocated to the Plaintiff and her housemate it was occupied by some people who worked for a Bank. A decision was then made to evict those people as at the material time it still remained a Ministry of Education Institutional house. This is the brief summary of the evidence 1n support of the Plaintiffs case. The only witness for the defence was the defendant himself who said the late Catherine Chiiko, who died on 3°th December, 1998 was his sister. He was appointed the Administrator of her estate when she died. Merton Nke tani remained in her flat after her death. On 9 th February, 1997 she applied to purchase the said Flat. In March, 1999 he learned that the said flat was re-allocated to the Plaintiff and Ms. Mwandamina. The application to purchase the said Flat was made in accordance with the circular that was dated 13th September, 1996. In 2000 D. W. l received the offer to purchase J4 the said Flat from the Ministry of Lands which offer h e accepted. The total purchase price was K3,010,000-00 which he paid. D. W.l cited a similar case in ·which the administra tor of the estate of one occupant, who died in 199 8, was offered to purchase the Flat she occupied at the time of h er death. Her name was Keshina Regina. The defendant, h aving been sold the said Flat, was claiming rent arrears from the plaintiff for occupying the said Flat. This is the defence story in brief. The court below reviewed this evidence and dismissed the claim hence this appeal. The Plaintiff filed five grounds of appeal on which she entirely relied in this appeal. The groun ds of appeal are: 1. That the learned trial judge misdirected himself in finding on page J6 of the ruling that flat No. 12 was for sale by the time Catherine Chiiko was alive contrary by the time to Government circular on sale of government institutional houses documents availed before Court by Appellant herein clearly stated that the flat was an JS Institutional house not for sale until when Appellant took occupation of the flat in 1999. 2. That the learned trial judge erred in believing that by the time the Respondent's relative Catherine Chiiko died in 1998, the Government has sanctioned the sale of houses to its sitting tenant but the fact is that when Appellant was allocated the house in 1999 the house was still under government under Ministry of education. This was confirmed by P. W. 4 evidence on page J4. 3. That the learned trial judge misdirected himself in finding on page J7 of the ruling that there is none of the documents produced by the Appellant which states that Fat No.12 was an Institutional house. The fact is that Appellant adduced before court a government circular which clearly and categorically stated that Flat No. 12 was not for sale until 1999 when Government Ministry of Education issued a fresh circular to allow Institutional house be sold to sitting tenant and by that time the Appellant was a sitting tenant. J6 4. That Flat No. 12 when it was allocated to Appellant it was vacant and it was allocated to her by the government Pool housing Committee after she applied for accommodation. Catherine Chiiko left the house before she died in 1998, she vacated the Flat when she got married in 1997 rendering her not to qualify to purchase the said house. 5. That if the Ministry of Education according to the finding on page 6 that the flat was to be sold in 1996, how come then Catherine Chiiko didn't purchase the house when she was alive but until in 2001 when the respondent was offered the house. Ministry of Education sanctioned to sale the institutional house that are built away from school premises in 1999. The Respondent filed written h ead s of a rgument which wa s a n answer to th e fir st ground of appeal only. It wa s argued tha t there was a d elib erate Government Policy, for sale of govern ment hous es, which ca me into place in 1996. At that time th e late Catherine Chiiko was the sitting t enant of Flat No. 12 J7 Ingwee Court. An application to purchase the said Flat was made on 9t11 September, 1997 and the offer was made on 22nd June, 2000. The offer was accepted and the purchase price was paid on 31 st August, 2000. The late Catherine Chiiko, being a Zambian national, qualified to purchase the said Flat. On grounds 2 to 5 of the Respondent said they were the same as ground one and the argument advanced on ground one applied to these grounds. We have considered the evidence, arguments, for and against, and the judgment appealed against. It is clear that the Flat that was under contention was an Institutional one owned by the Ministry of Education. It is also clear to us that both the Plaintiff and the late Catherine Chiiko, who different times occupied Flat No. 12 Ingwee Court, were employees of the Ministry of Education. Its first occupant being the late Catherine Chiiko. Both were allocated to said Flat by the Ministry of Education. J8 It is also not in dispute that the Government of the republic of Zambia made a deliberate policy to sell its stocks of pool houses to sitting tenants. The question which is before us, like it was in the court below, is whether Flat 12 Ingwee Court, which is in contention in this case, fell in the category of the houses which were to be sold to sitting tenants. The second question is whether the late Catherine Chiiko was the sitting tenant at the time the said Flat was sold. The evidence of P. W.3 and P. W.4 was that the house in contention was an Institutional house which did not fall under the category of pool houses which were affrct~d hy the 1996 circular on sale of Government Pool Houses. This fact was not disputed by the defendant. We have no reason to doubt the evidence of those two witnesses that at the time the policy for sale of Government Pool Houses was made Institutional houses were not affected. The learned trial judge made a finding of fact that there was no evidence on record to suggest that the flat under review was an Institutional one. We have said before that an Appellate Court can only reverse a finding if such finding is perverse of the evidence on J9 record or there was a misapprehension of the facts of the case by the trial court. We have said this in a number of our cases including the case of Zulu vs. Avondale Housing Project Limited1 in which we said: "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were made either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts." It is clear to us here that the evidence on record is contrary to the learned trial judge's finding. The letter from the Ministry of Education in Kitwe showed that Ingwee Flats were listed among the Institutional Houses/Flats which were sanctioned for sale. The letter is dated 22nd June, 1999. This was confirmed by the oral evidence of P. W.3 and P. W.4. We are therefore, satisfied that the trial court's findings regarding the status of the said flat can be reversed because it was not supported by the evidence on record. JlO The second issue of consideration 1s whether the late Catherine Chiiko was the sitting tenant of Flat No. 12 Ingwee at the court time a decision to sale the Institutional Houses/Flats was made. The directive to sell such houses and flats was made by the Ministry of Education on 6 th May, 1999. The late Catherine Chiiko had already died. In fact prior to her death she had been married and vacated the said flat for her matrimonial home. She only left somebody else perhaps hoping to be sold the said flat on the strength of the 1996 circular. This circular did not affect Institutional houses. So at the time of her marriage this Flat was not for sale and so could not be treated as a sitting tenant as to qualify her to buy it. When the Ministry of Education discovered that s01ne people lived in that flat illegally, it evicted them. Indeed when the late Catherine Chiiko got married and vacated the said flat she was no longer the sitting tenant. The Flat was formally allocated to the Plaintiff and her house mate. It is surprising how an offer could be given to the defence when the deceased had already vacated the flat though she had left somebody in it. She could not be offered that flat because Jll at the time the decision to sell the said Flat she was already dead and she died from her matrimonial home . We are therefore satisfied that of the two contenders the sitting tenant, at the time the decision to sell the Institutional houses and flats was made, was the plaintiff and not the late Catherine Chiiko on whose behalf the defendant was defending this action. We, therefore, find that the lower court's decision cannot be allowed to stand. It is, therefore, set aside and judgment entered in favour of the plain tiff. We make no order as to costs. ~ D. K. Chirwa ~ (_~ - c. S. Musfiabati SUPREME COURT JUDGE SUPREME COURT JUDGE ACTING SUPREME COURT JUDGE