Davis Nasilele (and any other person occupying house no.14 Kudo Drive, Kameza Township, Chililabobwe) and Anor v Jackson Musonda Mukolo and Anor (Appeal No. 3 of 2020) [2021] ZMCA 182 (26 August 2021)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 3 of 2020 HOLDEN AT NDOLA ( Civil Jurisdiction) BETWEEN: ZCCM INVESTMENT HOLDING PLC 2ND RESPONDENT Coram: Mchenga, DJP, Chishimba and Sichinga, JJA On 24 th March, 2021, 19th May, 2021 and 26 th August, 2021 For the Appella nts: For the 1 s t Respondent: Mr. D. Mazumba of Messrs Douglas and Partners For the 2nd Respondent: Mr. B . Mbilima, In-house counsel Mrs. L. Mbaluku of Messrs Mbalulcu and Company JUDGMENT Sichinga, JA delivered the judgment of the Court. Cases referred to: 1. 2. 3. 4. Kennedy Kalunga and Others v ZCCM Comp/ 161 / 1999 ZCCM v Richard Kangwa SCZ Judgment No. 25 of 2000 Felix Kanyimba v Michael Musonda App. No. 99 of 2000 ZCCM and Adrian Banda v Bestone Chambishi Appeal No. 204 of 2014 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Edith Nawakwi v Lusaka City Council and Sikanyika App. No. 26 of Muimui v Sylvia ChundaAppeal No. 13 of 2000 Dominic Mulaisho v Attorney General and others (2012) ZR 550 Daniel Mwale v Njolomole Mtonga SCZ Judgment No. 25 of 2015 Victor Katundu v Bonny Khunga App. No. 82 of 2000 Anti- Corruption Commission v Barnet Development Commission Ltd 2008 ZR 69, SCZ Rosemary Lubemba v ZCCM and Able Chabala Appeal No. 90 of 2008 Isaac Tantameni C. Chali (Executor of the Will of the late Mwala Mwala) v Liseli Mwala SCZ Judgment No. 6 of 1997 Walton Harvey Ltd v Walker and Homfrays Ltd (1931) 1 CH 274 Josephine Kabwe v Dominic Kapasa, Selected Judgment No. 4 of 2014 15. Simon Lwando and Other Teachers v ZCCM and Simasikwe & Others, Appeal No. 83 of 2009 Legislation referred to: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 2. The Rent Act, Chapter 206 of the Laws of Zambia Other works referred to: 1. Halsbury's Laws of England 4 th Edition -J2- l . O Introduction l. l This appeal is the latest round in long-running disputes as to who is entitled to purchase a Zambia Consolidated Copper Mines Limited (ZCCM) house in line with the government home empowerment policy and in line with ZCCM rules. The dispute relates to a housing unit that was sold to two individuals by ZCCM. The claim in the court below was brought by the plaintiff, Jackson Musonda Mukolo (the 1st respondent in this Court) seeking, in the main, a declaration that Subdivision P6 of Farm No. 1883 also known as House No. 14 Kudo Drive, Kamenza Township, Chililabombwe was duly sold to him by ZCCM, the 1 st defendant (the 2 nd respondent in this Court), and not the 3 rd defendant, Davis Nasilele (the appellant in this Court) . 1.2 The matter was heard by Makubalo, J (the trial Judge) sitting at the High Court at Kitwe. She delivered her judgment on 10th October, 2018 in which she found that the appellant, Nasilele, was not entitled to purchase the housing unit. She found in favour of the 1 st respondent, Mukolo, and ordered ZCCM -J3- Investment Holdings to compensate the plaintiff for the period N asilele was in occupation of the house till yielding vacant possession. The learned Judge dismissed the 3 rd defendant's counterclaim. 1.3 In 1996, the Government of the Republic of Zambia formulated a comprehensive housing policy aimed at the prov1s1on of adequate and affordable housing. The implementation of the policy resulted in the sale of most government pool, council, parastatal and rrune houses to sitting t enant s . The latter housing units were under the umbrella of th e mining conglomerate, Zambia Consolidated Copper Mines Limited (ZCCM). ZCCM was disbanded as a conglomerate in 2000. It was succeeded by ZCCM Investment Holdings PLC (ZCCM-IH), the 2 nd respondent herein. A score and a year ago since it was disbanded, cases continue cropping up in our courts as to who was legally entitled to purchase a ZCCM housing unit. Therein lies the dispute in this case. -J4- 2.0 Background 2.1 In 1998, 1st respondent was offered to purchase House No. 12 Kudo Drive, Kamenia Township, Chililabombwe (hereafter called the subject house) by ZCCM, his employer at the time. He accepted the offer and the parties executed a contract of sale. Mukolo paid the full purchase price by direct deduction from his terminal benefits. A Certificate of Title was issued in his name in the year 2007. 2.2 When the 1s t respondent attempted to take possession of the subject house, the appellants (the 2 nd and 3 rd defendants in the court below) refused to vacate alleging that the contract of sale b etween the 1 s t respondent and ZCCM was an error because in the same year, the 1st appellant (Nasilele) was also offered to purchase the subject house, for which he paid the full purchase price. 2.3 At the time, there was a pending matter in court in which employees of ZCCM subsidiaries (including the 1 st appellant) challenged the offer and subsequent sale of ZCCM houses to n on-sitting tenants. The 2nd appellant, Trevor Nyambe's -JS- contention was that he was equally eligible to purchase the subject property even though he was an employee of Mpelembe Drilling Limited, a subsidiary of ZCCM. He sought, by way of counter-claim, an order of cancellation of the Certificate of Title issued in the 1st respondent's name. However, he never participated in the trial. 2.4 At the trial, the 1st respondent admitted that he was not a sitting tenant at the time he was offered the house, but was offered the house by ZCCM by virtue of being its employee. 2.5 The 1 st a ppellant's evidence was that he was equally offered the subject house by ZCCM and paid the purchase price by deduction from his terminal benefits. That at the time, he was in occupation of the house as he was employed by Mpelembe Drilling, a subsidiary company of ZCCM. He stated that the Certificate of Title issued to the 1 st Respondent was done in error as there was an injunction emanating from the case of Kennedy Kalunga and Others v ZCCM1 that allowed him to enjoy quiet possession of the subject house. He admitted that the 1 st respondent's letter of offer was dated earlier than his -J6- and that the injunction came well after the 1 st respondent's letter of offer was generated. 2 .6 James Kalipeni Tembo, DW2, a conveyancing assistant, testified on behalf of ZCCM. He stated that in July 1997, there where rules formulated to guide the selling of ZCCM houses to Zambian employees and under clause 3(iii) of the ZCCM rules, the 1st appellant was not eligible, as he was employed by a subsidiary company. DW2 stated that the court in Kennedy Kalunga case ordered that employees of ZCCM subsidiaries were also eligible to buy the houses they occupied as sitting tenants. The subsidiaries included Mpelembe Drilling Company, Techpro, Nkana Business Ventures and Mpelembe Drilling Properties, under which the 1 st appellant was employed. 3.0 Decision of High Court 3.1 Having considered the pleadings, the oral and documentary evidence, as well as counsel's submissions, the learned trial Judge first found it was common ground that the plaintiff was an employee of ZCCM and that the 3rd defendant was an -J7- ./ employee of Mpelembe Drilling Company, a subsidiary of ZCCM. She accepted that the plaintiff had accepted ZCCM's offer to purchase the disputed property contained in a letter dated 15th January, 1998 for a consideration of K9, 160,00.00 (unrebased). She also accepted that the plaintiff paid this by way of a deduction from his terminal benefits, and he was subsequently issued Certificate of Title number 58511. She found there was no fraud in the issuance of the said Certificate of Title in the plaintiffs name as ZCCM followed the rules and procedure governing the sale. 3.2 The learned Judge found that the 3 rd defendant and other non-direct employees of ZCCM commenced an action in the Kennedy Kalunga case to challenge the refusal by ZCCM to offer them housing units in which they were sitting tenant. Having regard to the outcome of that decision she found that the complainants therein were entitled to purchase ZCCM housing units even if they were not direct employees of ZCCM. -JS- 3 · 3 The learned trial Judge went on to find that whilst the Kennedy Kalunga case was sub judice) ZCCM offered the subject property to Nasilele. The offer was contained in a letter dated 25th September, 2007 for a consideration of Kll,810,00.00 (unrebased). Nasilele accepted the offer and settled the purchase price in full on 23rd October, 2007. He too was issued with a Certificate of Title relating to the subject property. 3.4 Taking into account that there was no fraud in the issuance of title to the plaintiff, considering the provisions of sections 33, 34, and 35 of the Lands and Deeds Registry Act1 , the Kennedy Kalunga case and the ZCCM Rules governing the sale of housing units to Zambian employees, the learned trial Judge came to the conclusion that both, Mukolo and Nasilele were eligible to purchase ZCCM housing units. 3.5 On the defence raised by ZCCM that the matter was statute barred, the learned Judge found that ZCCM did not lead any evidence on it and sat on its rights. -J9- 4.o The learned Judge conceived the real question for determination was - who between the plaintiff and the 3rd defendant was eligible to purchase the subject property given they both had valid contracts? 4.1 Based on the foregoing findings, the High Court found that the contract of sale between ZCCM and the 3 rd defendant (Nasilele) was void ab initio, as the sale to Mukolo (the plaintiff) respondent had already taken place. The trial Judge considered the Kennedy Kalunga case and stated that the court in that case did not order that the already existing contracts be revoked, however, only decreed that sitting tenants who were indirect employees were also entitled to purchase ZCCM housing units. The learned trial Judge on this basis upheld the plaintiffs claim and threw out the 3 rd defendants' coun terclaim. 4.2 The lower court ordered ZCCM to compensate the plaintiff on a monthly rental from the date of judgment of the Kennedy Kalunga case to the date of judgment in casu and thereafter ordered the 3 rd defendant to pay rentals to the plaintiff to the -JlO- date of yielding vacant possession. In addition, the lower court ordered the 3 rd defendant to vacate the subject property within 60 days of its judgment . . 5.0 The appeal Aggrieved by the decision of the lower court, the appellants lodged this appeal before the Court fronting the following grounds: l. The learned Judge in the court below erred in law and fact when despite finding that the appellant was entitled to buy the house in issue, and the rules stating that he was entitled to the first priority, went ahead to rule that the sale to the non-sitting tenant was valid despite the circumstances revealing impropriety. 2. The learned Judge in the court below erred in law and fact when she upheld the offer made to the 1at respondent and his contract of sale and declared the appellant's subsequent offer and contract of sale as void ab initio based on the dates of the same and which came first, instead of considering the main dispute based on the validity of that same offer to the non-sitting tenant which was not only against the Home Empowerment Policy designed to accord the sitting tenants {such as the 1st appellant) the first priority but also -Jll- in breach of ZCCM's own rules which emphasized on according priority to the sitting tenants. 3 . The learned Judge in the court below erred in law and fact when it held that the plaintiff was not party to the Kennedy . Kalunga case when he was under the 3rd complainants who were employees of ZCCM and the house in issue was among those affected by the injunction under Number 324 of the Konkola houses list and caveats filed at Ministry of Lands. 4. The learned Judge in the court below erred in law and fact when she held that the Industrial Relations Court judgment did not specify which houses the complainants were supposed to buy when the complaint in the then Industrial Relations Court was clearly about the failure by ZCCM to offer them houses they occupied as sitting tenants and the Industrial Relations Court indeed found that the complainants were eligible to buy the houses they occupied as sitting tenants. 5. The learned Judge in the court below erred in law and fact when she refused to cancel the title and held that there was no fraud in the issuance of the same when: a) The offer made to the plaintiff, a non-sitting tenant, in the first place was wrongful and improper in that the appellant who -J12- was the sitting tenant was not accorded the first priority to buy the same house in line with the Government Home Empowerment Policy and in line with ZCCM rules; b) The offer was irregular, wrongful and fraudulent as the Plain tiff, a non-sitting tenant, was offered the house under the false pretense that he was the sitting tenant when in fact not; c) At the time of processing the title for the non-sitting tenant, there was an injunction and caveats filed revealing impropriety in the processing of the titles despite them being in place. 6. The learned Judge in the court below erred in law and fact when she failed to take into account the fact that the matter was statute barred, an issue which was duly raised in one of the pleadings forming part of the matter. She failed to take judicial notice of the period in excess of twelve years having found that the dispute arose in 1998 (and the dispute had earlier on passed through the Industrial Relations Court in 1999) but this matter was only instituted in the High Court in 2017, which was almost 19 years later. 7. The learned Judge in the court below erred in law and fact when she ordered the appellant to pay rentals to the plaintiff, a non sitting tenant, when his offer was irregular, wrongful and therefore invalid and there was no written tenancy agreement between the parties. -J13- 6 •0 Appellant's arguments 6 -1 The appellants filed heads of argument dated 13th January 2020. In support of the first ground of appeal, they cited the case of ZCCM v Richard Kangwa2 to support the position that the 1 st appellant should have been accorded the first priority to purchase the subject house as the sitting tenant. It was submitted that in the cited case, ·the court declared the offers made to non-sitting tenants, before according the sitting tenants first priority to buy, as wrongful and irregular and therefore null and void. The offers were accordingly cancelled and ZCCM was ordered to instead offer the sitting tenants. 6. 2 We were also referred to the case of Felix Kanyimba v Michael Musonda3 , where the Supreme Court followed its earlier decision in ZCCM v Richard Kangwa supra, to support the same preposition. 6.3 The appellants submitted further that the Supreme Court has emphasized the same position in the case of ZCCM and Adrian Banda v Bestone Chambishi4 where it declared the offer to a non-sitting tenant wrongful, against the home -J14- empowerment policy of ZCCM rules and therefore null and void. It therefore upheld cancellation of the title issued to the non-sitting tenant and ordered ZCCM to offer the house to the sitting tenant. 6.4 Applying these authorities in casu, the appellants submitted that the offer made to the 1 st respondent was wrongful, irregular and therefore null and void and ought to have been cancelled. That had the court below applied its mind to the dicta in the cited Supreme Court cases, she could not have ruled that the offer and contract made to the 1 st respondent before according the 1 st appellant, the sitting tenant, the first priority to buy the house , was also valid. It was submitted that the holding by the lower court that both contracts were valid was a misdirection because there can only be one valid offer at a time. The appellants urged the Court to allow the appeal and set aside the orders of the lower court with costs. 6.5 In support of the second ground of appeal, the appellants mainly repeated their arguments under the first ground of a ppeal. They added that according to the case of Edith -JlS- Nawakwi v Lusaka City Council and Sikanyika5 , a non sitting tenant could only be eligible to purchase a house if the sitting tenant failed to purchase it. They submitted that in casu the appellant was entitled to have the first priority to purchase the subject property. That the 1st respondent was only eligible to purchase the subject property after the appellant failed to do so. They contended that the offer made to the 1 st respondent was wrongful, irregular and contrruy to the home empowerment policy, and to the ZCCM sale of houses rules . They submitted that the holding of the lower court was a misdirection which ought to be set aside. That if title was issued to the 1 s t respondent in such circumstances, the same should be set aside as it was issued in error. 6 .6 With respect to the third ground of appeal, the appellants' argument was that the 1st respondent was also bound by the injunction and judgment which declared the sale to him as invalid and ordered ZCCM to offer the 1 st appellant the house in issue. The appellants further submitted that there has been no appeal against that judgment which cancelled the first offer -J16- to the 1 st respondent by either ZCCM or the 1 st appellants, to date. That instead, it was perfected by the offer made to the 1 st appellant who duly paid for the house. 6 • 7 Turning to the fourth ground of appeal, the appellants submitted that the 1 st appellant's complaint in the matter before the then Industrial Relations Court was in relation to the house in issue, which was among the list of houses subject to the action and the respective parties asserting claims over them, which were the subject of the judgment. That the then Industrial Relations Court went on to pass judgment indicating that the complainants were discriminated against when ZCCM failed to offer them the houses they claimed they were occupying as sitting tenants in line with the house empowerment policy. They added that the houses were described, which description appeared in a list opposite each complainant and each respondent to that action. 6.8 It was submitted that the learned trial Judge erred when she h eld that the judgmen t in the Industrial Relations Court did not state which houses the complainants were supposed to -J17- buy when it was clearly indicated in the complaint and in the judgment which house the judgment referred to. It was argued that when ZCCM made the offers, it referred to the houses indicated in the list of complainants and respondents, and the house number was indicated beside each party. It was submitted that the finding by the learned trial Judge was perverse and the same should be set aside. 6.9 In support of the fifth ground of appeal, the case of Muimui v Sylvia Chunda6 was cited to buttress the position that being a sitting tenant is not the sole consideration for eligibility to purchase a ZCCM house; one had to be in a working relationship with ZCCM. On this score, the appellants submitted that whereas the 1 st appellant satisfied the two requirements, the 1 s t respondent only satisfied one criteria of being an employee of ZCCM as he was not a sitting tenant. That the court below, having alluded to the cited case, should have found in favour of the 1 st appellant. 6.10 In support of the second limb of the fifth ground of appeal, it was submitted that the offer to the 1 st respondent was wrong -Jl8- in itself, as it was presumed that he was the sitting tenant, when in fact not. Under the third limb, it was argued that ZCCM and the 1 st respondent acted against a court order and a caveat when they proceeded to execute an assignment for processing of title in respect of the house in issue. It is on this premise that the appellants submitted that the court below erred in holding that the title was properly issued and refused to cancel it. We are urged to follow the Supreme Court's decision in the Bestone Chambeshi case and cancel the Certificate of Title. 6.11 On the sixth ground of appeal, the appellants submitted that the lower court should have dismissed the matter for irregularity. The cases of Dominic Mulaisho v Attorney General and others7 and Daniel Mwale v Njolomole Mtonga8 were cited to support the position that a court has no jurisdiction to hear and determine a matter which is statute barred. 6.12 Our attention was drawn to the statement of the lower court that although the issue of the matter being statute barred was -Jl9- raised, no evidence was tendered on the same. The appellants argued, in this vein, that the fact that there is more than a 12- year gap between 1998 and 2017 is so notorious that the court ought to simply take judicial notice and not wait for evidence to indicate the same. That what was required was simply submission on a point of law, which the 2 nd respondent did. 6.13 Turning to the seventh and final ground of appeal, the appellants submitted that a claim for rentals cannot be sustained, as there was no tenancy agreement between the 1st appellant and 1s t respondent in accordance with the law, which requires all transactions in land matters to be in writing. The case of Victor Katundu v Bonny Khunga9 was cited in this regard, where the Supreme Court set aside the order for payment of rent on the ground that there was no tenancy agreement under the Rent Act2 and the action was misconceived. In that case, the order for vacant possession was also set aside as the court found that the sitting tenant was an employee of a ZCCM subsidiary and he had the right to -J20- purchase the house as a sitting tenant, despite the fact that the non-sitting tenant had title deeds to the property. It is the appellants' prayer that the order for payment of rentals equally be set aside on the same grounds and this appeal should succeed on all grounds, with costs to the appellants. 7 .0 1 st Respondents' arguments 7 .1 In response to this appeal, the 1st respondent filed heads of argument dated 29 th April 2020 in which counsel argued all the grounds of appeal in concert. After setting out the undisputed fa cts it was submitted that the basic rule of law and equity is tha t estates and interests primarily rank in the order in which they are created. In furtherance of this position, it was argued that at the time ZCCM purported to offer the property to the 1 st appellant, the 1 st respondent had already acquired a Certificate of Title to the property in issue. That as such, ZCCM had no interest in the property which was capable of being transferred to the 1 s t appellant at the time it purported to have made an offer to him. That as such, the -J21- offer to the 1 st appellant was a nullity since ZCCM could not give that which it did not own. 7 .2 To buttress his position, the 1 st respondent cited the case of Anti-Corruption Commission vs. Barnnet Development Corporation Limited10. He contended that he is a holder of a Certificate of Title which is not tainted by any of the grounds set out under section 34(1) of the Lands and Deeds Registry Act that can merit the cancellation of his title. He argued that the 1 st appellant's claim is anchored on a letter of offer which was generated after the subject house became the subject of Certificate of Title. Therefore, the 1 st respondent is the legal owner of the property. 7.3 In the alternative, the 1st respondent submitted that should we find in favour of the 1 st appellant, we should order the 2nd respondent to find the 1st respondent an alternative house equivalent of the commercial value of the purchase price paid, as the Supreme Court did in the case of Rosemary Lubemba v ZCCM and Able Chabala11 when it held that: -J22- "We hold that this would actually amount to miscarriage of justice to the appellant as she had bought house number 46 Chibolya Street, Twibukishe Township, Kitwe. We therefore order that the 1 st respondent finds her an alternative house equivalent of the commercial value of the purchase price she paid." 7 .4 In response to the 1 st appellant's argument that the house in issue was the subject of litigation before the then Industrial Relations Court, the 1 st respondent submitted that he was not a party to that action and the 1 st appellant did not join him to the action despite the latter having sufficient interest in the matter. The case of Isaac Tantameni Chali v Liseli Mwala12 was cited in this regard. It was argued that the then Industrial Relations Court judgment in the Kennedy Kalunga case did not nullify the offer to the 1 st respondent because it was not a party to the proceedings as the judgment only nullified offers made to persons who were the 3 rd respondents. That there are therefore no grounds on which the court may order cancellation of the 1 st respondent's Certificate of Title. 7.5 Furthermore, the 1st respondent advanced an argument to counter the 2 nd respondent's possible argument, in light of its -J23- defence in the lower court, that its contract with the 2 nd respondent was frustrated by the judgment in the Kennedy Kalunga case. The 1 st respondent placed reliance on Ha lsbury's Laws of Englandl, at paragraph 899 on the doctrine of frustration where it states: "The doctrine of frustration is in all cases subject to the important limitation that the frustrating circumstances which must arise without fault of either party; that is the event which a party relies upon as frustrating his contract must not be self-induced. The defence of frustration can therefore be defeated by proof of fault and the burden of proof lies upon the party alleging it. Deliberate choice eit her not to p e r form or to put performance out of one's power w i ll certainly be fault within the rule." (Underlined for emphasis) . 7.6 The case of Walton Haroey Ltd v Walker and Hom/rays Ltd13 was also cited in the same regard. Applying these authorities, the 1st respondent submitted that ZCCM knew what risk the matter before the then Industrial Relations Court had on the contract it had with him but elected to put performance without providing against such risk and therefore, the 2 nd respondent cannot rely on the doctrine of -J24- frustration. We are urged to uphold the judgment of the court below and dismiss this appeal with costs. 8.0 2 nd respondent's submissions 8.1 On 24th March, 2021 we allowed the 2nd respondent to file its heads of argument out of time. It equally argued all the grounds together. It was submitted that as a result of the Kennedy Kalunga case, the contract of sale between ZCCM and the 1 st appellant was frustrated. Further, that the case of ZCCM v Richard Kangwa supra clearly laid out the rights of sitting tenants who were employed by ZCCM subsidiary companies. In consonance with the Supreme Court judgment, it was argued by the 2 nd respondent that the offer that was purportedly made to the 1 st respondent by ZCCM was irregular. 8.2 It was submitted that the 1st respondent was a part and parcel of the Kennedy Kalunga case as he fell under the 3 rd complainant in that suit. That it was thus a misdirection on the part of the trial Judge to hold that the 1 st respondent was -J25- not a party to that action, and was thus not affected by its outcome. It was argued that whereas the Kennedy Kalunga case did not specifically name the properties in contention, it is not far-fetched to argue that the complainants in that matter specifically wanted the court to order ZCCM to offer them houses of which they were tenants. It was submitted that it defies logic to argue otherwise and therefore the trial judge fail into grave error when she held that the Industrial Relations Court did not specify the houses the complainants in that cause were supposed to buy. 8.3 The 2 nd respondent submitted that if we were inclined to accept the argument that the Kennedy Kalunga case was specific with respect to the houses that were before the Industrial Relations Court, it should follow that ZCCM was duty bound to offer the house to the appellant as it did. 8.4 With regards to the matter being statute barred, the 2 nd respondent submitted that, as it was duly noted by the trial court, the issue of the matter being statute barred was raised in its pleadings. That the learned Judge ought to have -J26- dismissed the matter for irregularity as clearly a period of more than twelve ( 12) years had lapsed before the 1 st respondent brought (?Ut its action. 8.5 It was submitted that the 1st respondent's preposition that if the Court holds in favour of the 1st appellant, then the 2 nd respondent should find it an alternative house, is untenable because ZCCM offloaded its housing stock to offset part of the terminal benefits due to its employees. Further, that the revocation of offer from the 1 st respondent was not done by the 2 nd respondent willfully but was compelled by the court action in the Kennedy Kalunga case. 8.6 We were urged to set aside the judgment of the court below and order that the offer made to the 1 st respondent by ZCCM was in order and in compliance with the judgment in Kennedy Kalunga. Further, or in the alternative, we were urged to dismiss this case for being statute barred. 8.7 It was submitted that on the strength of the evidence on record, the trial Judge should have dismissed the case for -J27- being statute barred. That there are strong grounds that warrant this Court to set aside the judgment of the court below with costs to the 1 st respondent. 9.0 Our considerations and decision 9 .1 We have considered, the evidence on record, the impugned judgment of the court below, submissions of counsel and the issues raised. We will deal with all the grounds together as they are interrelated. 9. 2 The issues for consideration zn casu emanate from government's policy to sell its housing units to government employees as part of its home empowerment policy. ZCCM was one of the parastatals whose employees benefited from this policy, the implementation of which has had the effect of opening the floodgates of litigation as beneficiaries or parties purporting to be beneficiaries have sought to assert their claims over the houses. Consequently, for almost two decades, the courts have been making pronouncements on a number of legal issues raised as a consequence of implementation of this policy. -J28- 9.3 Our task in this appeal is to ascertain whether the trial court properly applied the legal principles relevant to this case when it decided that the 1 st respondent's claim to the subject house was valid and that that of the 1 st appellant was not. 9 • 4 One of the earliest authorities where a court pronounced itself on the rights of sitting tenants regarding the sale of ZCCM houses was the Kennedy Kalunga case, which appears to have had a bearing on the occurrences that led the 1 st respondent to commence this action. What we decipher from the facts herein is that the 1 st appellant was part of a group of complainants who were sitting tenants employed by ZCCM subsidiary companies. The 1 st appellant and others obtained judgment in their favour establishing their entitlement to have the first priority to be offered the houses they occupied as sitting tenants. Prior to that action, only direct employees of ZCCM were being offered houses, as ZCCM hoped to reduce its liability to direct employees by offsetting the houses sold against the separation packages. -J29- 9 .5 To give some context to the unique nature of matters revolving around the home empowerment policy implementation, we will endeavour to set out a brief outline of the development of legal precedent relating to the sale of ZCCM housing units to former employees. One of the earliest cases was the Richard Kangwa case, where the Supreme Court held that employees of ZCCM and its subsidiary companies, who occupied the houses by virtue of their employment, should be given the first option to purchase the housing units as sitting tenants as opposed to non-sitting tenants. 9.6 In the case of Beatrice Muimui v Slyvia Chunda supra, the Supreme Court went further to say that being a sitting tenant was not the sole criteria for eligibility to purchase a government house under the policy of empowerment of government employees- one also ought to have been an employee of government. 9 .7 In the case of Josephine Kabwe v Dominic Kapasal4, the appellant, an employee of ZCCM, had applied to purchase a house. She was offered a house and she accepted the offer -J30- upon which a contract of sale was executed, and she paid the full purchase price by way of deduction from her terminal benefits and a Certificate of Title was subsequently issued in her name. When she went to take possession of the house, she found the respondent, also an employee of ZCCM, was equally offered the house. The respondent refused to vacate the house, claiming that he ought to have been given the first priority to purchase the house as a sitting tenant. The respondent's offer had been withdrawn for unknown reasons and he was offered another house that was occupied by a sitting tenant. He later lost his claim to that other house as it was finally given to the sitting tenant. 9. 8 The trial Judge found in favour of the respondent and ordered cancellation of the appellants' Certificate of Title. On appeal, the Supreme Court set aside the order of cancellation of Certificate of Title and made the following determination: "In our view, once the respondent accepted the offer for House No. E241 Wusakile, he could not again fight for an offer for House No. L232 Chamboli which had been offered to the appellant by the time he was accepting the offer for the -J31- I i ! I i I ' 'j Wusakile house. We agree with Counsel for the appellant that the learned trial Judge having found no evidence of fraud in the case, there was no basis to order cancellation of the certificate of title on the basis of the Edith Nawakwi case 1 or even the Eddie Katalayi case 7 which are clearly distinguishable from the present case. In conclusion, the effect of the order of cancellation by the Court below was in disregard of Section 33 and 34 of the Lands and Deeds Registry Act and as we have stated herein also had the effect of literally ordering ZCCM to offer the house to the respondent. In the case of Anti-Corruption Commission vs. Barnnet Development Corporation Limited9 we said that: "Under section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title. However, under section 34 of the same Act, a certificate of title can be challenged and cancelled for fraud or reasons for impropriety in its acquisition." In this case, our finding is that the court below misdirected itself when it held that the offer to the appellant was in bad faith as there was no evidence to this effect. As pointed out by Counselfor the appellant, there is uncontroverted evidence that the respondent had an offer for house No. E242 Wusakile and it was only proper that he pursued ZCCM over that house instead of 'claiming two houses." 9. 9 In the case of Simon Lwando and Other Teachers v ZCCM and Simasikwe & Others15 the Supreme Court held that -J32- teachers who were employed by the Ministry of Education and occupied houses belonging to ZCCM by virtue of teaching at a school that belonged to ZCCM were not entitled to purchase the houses they occupied. The reason for this position was that they were not employees of ZCCM but rather, the Ministry of Education, which leased the houses on their behalf from ZCCM. The teachers were ordered to vacate the houses and pay mesne profits to the former ZCCM employees who had obtained title to the respective houses, even though they were not sitting tenants. 9. 10 This decision was in conformity with the principle outlined in the Beatrice Muimui case that being a sitting tenant was not the only consideration - one had to be an employee of the government. 9. 11 In ZCCM and Adrian Banda v Bestone Chambishi supra the High Court ordered cancellation of the Certificate of Title issued in the name of a non-sitting tenant who had purchased a house that had not been first offered to a sitting tenant. The sitting tenant was an employee of ZCCM who had not been -J33- offered to purchase the house. The said sitting tenant refused to vacate, which led the party who was not a sitting tenant to commence the action that led to the cancellation of the Certificate of Title. It is noteworthy that in that case, the sitting tenant had not even been offered the house for sale unlike in casu, where the sitting tenant was offered to purchase, but only after the sale to the non-sitting tenant was already concluded. 9.12 In that case, ZCCM was displeased with the High Court's order to cancel the contract of sale and Certificate of Title and appealed to the Supreme Court, which upheld the High Court's decision in ajudgment delivered on 30th October, 2017 in ZCCM-IH Plc V Vidah Banda Mumba and Bestone Chambeshi, where it stated at page J56 that : "In the circumstances we cannot fault the finding by the learned trial Judge that the deceased improperly obtained the Certificate of Title and the ordering of its cancellation. We equally find no impropriety in the order made by the learned trial Judge that the appellant should offer the house to the 2 nd Respondent." -J34- 9 · 13 The Supreme Court also upheld the High Court's order for ZCCM to refund the purchase price of the house to the 2 nd appellant. 9.14 It is clear from the authorities outlined above that being a sitting tenant has been a primary consideration for eligibility for offer of housing units to former employees of ZCCM. It would appear that among the authorities we have earlier ref erred to, there are two where the High Court ordered cancellation of Certificate of Title issued to a non-sitting tenant. These are Josephine Kabwe and Bestone Chambishi. However, between the two, it was only in the latter case that the Supreme Court upheld the decision of the trial court to order cancellation. In our view, the prominent distinguishing factor· between these cases was that in the Josephine Kabwe case, the sitting tenant was fighting for two houses and the Supreme Court found that unfair. In Bestone Chambeshi, on the other hand, the emphasis to offer sitting tenants first was further exemplified when the Supreme Court ordered ZCCM to offer the house to the sitting tenant, who had not initially -J35- been offered when title was issued in favour of the non-sitting tenant. 9.15 Taking into account the chain of precedents on matters relating to the sale of ZCCM houses to its employees, we are of the view that the learned Judge in the Court below misdirected herself when she perceived that the question for determination was whether the first contract (between ZCCM and the 1 st respondent) was valid and if it was, what was the status of the second contract. Not to disregard fundamental principles of contract law, but this consideration has not been a factor in the determination of establishing entitlement to purchase a ZCCM housing unit. The trial court instead ought to have considered these authorities and applied them in casu to justify why it decided in favour of the non-sitting tenant. Had the court below adhered to the doctrine of stare decisis, by fallowing prior decisions of higher courts in deciding similar facts, she would have arrived at a different decision. 9.16 As regards the 1 st respondent's argument that he was not party to the proceedings in the Kennedy Kalunga case and he -J36- was therefore not bound by the judgment, our position is that the house in question was subject to that action, the judgment of which had the effect of compelling ZCCM to offer the house to the 1st respondent, which ZCCM did. As such, whether the 1 st respondent was a party to the action is immaterial, as in any event, ZCCM was still bound by the court order to offer the subject house to the 1 st appellant. Consequently, the decision of the High Court to evict the 1st appellant, being the sitting tenant, from the subject house was misconceived and we hereby set it aside. 9. 1 7 The 1 st appellant, through litigation, successfully established his right to have the first option to purchase the subject house and the lower court, having found that the 2nd appellant and the first respondent were both employees of ZCCM who were eligible to purchase a house, should have then considered who was in occupation as sitting tenant at the time they were offered to purchase the house, based on the guidance given by the Supreme Court in a plethora of cases on this subject, some of which have been alluded to. -J37- Had the learned Judge properly directed herself in this regard, she would have found that the house was wrongly offered to the 1 st respondent instead of the 1 st appellant, as the former was not a sitting tenant at the material time. 9.18 Following the precedent set by the Bestone Chambeshi case, which we have no reason to depart from, we hereby order the cancellation of Certificate of Title issued in the name of the 1 st respondent and we uphold the offer to the 1 st appellant as sitting tenant. The title in the 1 st respondent's name was obtained on a misconception of facts that the house was properly offered to him, when in fact not. It should have first been offered to the 1 st appellant, for reasons that by now are obvious. On the strength of the same authority, we order ZCCM-IH to refund the purchase price paid by the 1 st respondent in respect of the house with interest at current lending rate from the date of payment to the date of Judgment, thereafter at the commercial lending rate. 9.19 We will now address the respondent's arguments that the matter was statute barred at the time it was commenced in -J38- • the lower court. This was raised as a defence by ZCCM but no evidence was led in the lower court regarding the same. We note that a party may at the trial raise a point of law, even though it was not pleaded in his defence. In this particular case, it was pleaded as a defence but no evidence was led at trial regarding the same. As such, we are inclined to agree with the lower court that ZCCM sat on its rights when it neglected or omitted to adduce evidence in furtherance of its claim that the matter was statute barred. 9 .20 We find m erit in this appeal and hereby uphold it, with costs to the appellant. C. F. R. Mchenga ,1f 1 DEPUTY JUDGE PRESIDENT •.•••......•••....•.........•..•••.••.•• F. M. Chishimba t S( . --:) ······'"~••J'~•· .. ~'.'11·· ...... ······· t,,/ I I D. L. Y. Sich!nga, SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J39-