Dr. Herrick Chota Mpuku v Attorney General (APPEAL NO. 27/09) [2012] ZMSC 118 (11 December 2012)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 27/09 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DR. HERRICK CHOTA MPUKU APPELLANT AND THE ATTORNEY GENERAL RESPONDENT Coram: Chirwa, Acting DCJ, Mwanamwambwa and Muyovwe, JJS On the 1 st February, 2011 and 11th December, 2012. For the Appellant: Mr. L. Kalaluka, Messrs Ellis and Company For the Respondent: Mr. M. Mukwasa, Senior State Advocate with Mrs. N. Mumba, State Advocate JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court. Cases and Materials referred to: 1. Sithole vs. The State Lotteries Board SCZ Judgment No. 13 of 2. Bater vs. Bater ( 1950) 2 All ER 438 3. Beatrice Muimui vs. Sylvia Chungu SCZ No. 50 of 2000 4. Malindi vs. Ford ( 1973) Z. R. 129 5. Phipson on Evidence 13th Edition When we heard this appeal, Justice Chirwa sat with us. He has since retired. Therefore, this judgment is of the majority. Jl The Appellant has appealed against the judgment of the High Court at Lusaka which declined to declare him as owner of House No. 22/4636, Tito Road, Rhodes Park, Lusaka. In the Court below the Appellant claimed as follO"ws: i A declaration that the Plaintiff is the owner of house number 22/4636, Tito road, Rhodes Park, Lusaka; ii An order for vacant possession of the said house; iii Mesne profits from 1st March, 2001 until possession is yielded up; vi v Interest on the amounts found due at the Barclays Bank lending rate from 1st March, 2001 to date of payment; In the alternative, an order for the refund of the sum of K29, 998,000.00 being the purchase price together with interest thereon at the Barclays Bank lending rate from 1st March, 2001 to date of pay:p1ent; vi Costs and vii Any order relief. In its counterclaim, the State prayed for an order of cancellation of the certificate of title No. 11593 issued in respect of the disputed house and setting aside of the sale of the subject house to the Appellant. The facts of this case are that in January, 2001 the Appellant was employed as a Permanent Secretary at the :Ministry J2 The Appellant has appealed against the judgment of the High Court at Lusaka which declined to declare him as owner of House No. 22/4636, Tito Road, Rhodes Park, Lusaka. In the Court below the Appellant claimed as follows: i A declaration that the Plaintiff is the owner of house number 22/4636, Tito road, Rhodes Park, Lusaka; ii An order for vacant possession of the said house; iii Mesne profits from 1st March, 2001 until possession is yielded up; vi v Interest on the amounts found due at the Barclays Bank lending rate from 1st March, 2001 to date of payment; In the alternative, an order for the refund of the sum of K29,998,000.00 being the purchase price together with interest thereon at the Barclays Bank lending rate from 1st March, 2001 to date of payment; vi Costs and vii Any order relief. In its counterclaim, the State prayed for an order of cancellation of the certificate of title No. 11593 issued in respect of the disputed house and setting aside of the sale of the subject house to the Appellant. The facts of this case are that in January, 200 1 the Appellant was employed as a Permanent Secretary at the Ministry J2 of Finance and National Planning. The Appellant was offered the disputed house to purchase at a price of K29,998,000 and he paid the purchase price in full. However, the Appellant could not take occupation of the disputed house as the same was still occupied by Mr. Manjata, a former Minister. However, when the former Minister vacated the house, the government declined to give the Appellant vacant possess10n. Further, it was the Appellant's evidence that in April 2001 Copperbelt University (CBU), his former employers offered him to purchase House No. 4648 Kariba Road, Kitwe at a price of Kl9,600,000 which he accepted and paid the purchase price in full. Under cross-examination the Appellant said his application was directed to the Permanent Secretary, Ministry of Works and Supply. That he was a sitting tenant in a house belonging to CBU before he was offered the house in dispute and that at the time he bought the said house; CBU had not yet made a decision on the sale of its houses. On the other hand, the Respondent's witness Abraham Banda who was a Senior Executive Officer, Housing in the Ministry of Works and Supply, testified that on 24th June, 1999 J3 Government approved the sale of government pool houses to sitting civil servants through Cabinet Office Circular No. 12 of 1996. Guidelines were provided in the Handbook on the Civil Service Home Ownership Scheme. According to this witness, government put measures not to sell VIP and institutional houses. In this regard, civil servants occupying VIP houses were to be allocated pool houses which they could purchase later. The witness disclosed in his witness statement that between 19th June, 2000 and 4 th January, 2001 the Appellant purportedly applied to purchase a government pool house. That he attached an allocation slip for house number 19 / 873 Tito Road which was later cancelled and handwritten to indicate house number 22/4636 Tito Road. He stated that the said house was a VIP house reserved for the occupation of a Deputy Minister and that in fact at the time the said house was purportedly allocated to the Appellant, it was occupied by Mr. Manjata. That although the Appellant claimed to have bought the house, it was procured by fraud; without authority and irregular. That the Appellant should have sought the approval of the Secretary to the Cabinet in order for the house to be considered in the same category as a pool house. It was also stated that the Appellant's application J4 was not signed and dated by the Appellant and neither was it signed by the Permanent Secretary, Ministry of Works and Supply and the Chairman of the Ad hoc Supervisory and Monitoring Committee. That the speed of the process from allocation to purchase of the house was evidence that the Appellant indulged himself in some sharp practices. It was the evidence of Abraham Banda that the Appellant having purchased the house in Kitwe from CBU he could not purchase another house in Lusaka since he could only be regarded as a sitting tenant of one house in terms of the Pool Houses Ownership Scheme. That as a Permanent Secretary, the Appellant was in a position of trust. Under cross examination, he said that the fraud referred to in this case was in the failure by Appellant to follow the correct procedure for the sale of government pool houses. That the Appellant should have applied to the Secretary to the Cabinet for approval. That the sale was irregular especially that the Appellant had already benefited through purchase of the house under CBU. It was conceded that some VIP houses were sold to sitting tenants after approval from the Secretary to Cabinet. JS In his judgment, the learned trial Judge considered the evidence before him and isolated the issues in contention, that is, the lack of propriety in the purchase of the house in dispute by the Appellant and the eligibility of the Appellant to purchase two houses taking into account the guidelines laid down regarding the sale of government houses and quasi-government houses. The learned trial Judge found that the Appellant did not seek declassification of the house in dispute from the Secretary to the Cabinet and his application was found wanting as it was unsigned and was also not signed by the relevant authority. The trial Judge accepted that the procedure for purchase of a VIP house was to apply to the Secretary to the Cabinet and that the Appellant did not make such an application. That the Appellant, as a Permanent Secretary ought to have been aware of the procedure to be followed. That failure to follow the correct procedure was evidence of impropriety in the purchase of the house . The learned trial Judge examined the prov1s1on 1n the Handbook on the Civil Service Home Ownership Scheme and found that the Appellant was not entitled to purchase two houses. That CBU being a quasi-government institution, the Appellant was not eligible to purchase another house from the government. That the Appellant conceded to this 1n cross examination. In conclusion, the Court below found that the Appellant had failed to prove his claim and dismissed it with costs to the Respondent. As to the counter-claim, the learned Judge held that the purchase of the house in dispute by the Appellant was a nullity. Therefore , he ordered the Registrar of Lands and Deeds to cancel the Certificate of Title. However, the learned Judge declined to order forfeiture of the purchase price and il1stead ordered that the same be refunded to the Appellant without interest. Dissatisfied with the judgment of the lower Court, the Appellant appealed on the following grounds: 1. The learned trial Judge erred in law and in fact when he held that the only procedure which was available in respect of the purchase of a VIP house was to seek authority, sanction or consent of the Secretary to the Cabinet. 2. The Court below misdirected himself in law and in fact when he held that there was impropriety in J7 the purchase of the house in dispute by the Plaintiff. 3. The learned trial Judge erred in law when he held that the Appellant was not eligible to purchase two houses - one from the Copperbelt University and one from Government. In support of this appeal, learned Counsel for the Appellant Mr. Kalaluka relied on arguments contained in the Appellant's Heads of Argument which he augmented with brief oral submissions. He argued ground one and two together as they both relate to the question of impropriety or otherwise in the purchase of house in dispute. It was sub1nitted that, the Respondent failed to adduce any evidence to prove that in order to purchase the VIP house there was need to seek authority, sanction or consent of the Secretary to the Cabinet. It was submitted that it was the duty of the Respondent to adduce evidence to support its claim and in support of the above contention Counsel referred us to Phipson on Evidence at pages 44 to 45 where it is stated at paragraph 04 that: "The burden of proof rests upon the party, whether Plaintiff or Defendant who substantially asserts the JS affirmative of the issue. It is fixed at the beginning of the trial by the state of the proceedings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings, place it, never shifting in any circumstance whatever. If, when all the evidence by whosoever introduced it, the party who has this burden has not discharged it, the decision must be against him". Fur the r that Cabine t Circular Minute of 19 96 which s tates that : "Officers occupying VIP houses who wish to buy government pool houses shall submit their application to the Secretary to the Cabinet. Once approval of the Secretary to the Cabinet is obtained, the appropriate Housing Committee may, subject to availability of pool houses give preference to such officers and issue housing allocation slips to them. In that event, officers will be required to fill in the form of application to purchase a government Pool house in the manner prescribed in the above circular, for consideration of the appropriate committee." It was argued that the procedure outlined in the cited paragraph above rela tes to officers occupying VIP h ouse but seeking to purchase government pool houses. It d id not relate to officer s wh o were not s ittin g t enants b ut s eeking to purchase VIP h ou ses. That, therefore, the Cou rt below fell in grave error as VIP houses were different from government pool hous es and tha t , J9 there is no evidence on record to support the view that in order to purchase a VIP house one had to seek the approval or authority from the Secretary to the Cabinet. It was contended that the Respondent failed to adduce evidence in the Court below to show that the purchase of the house in dispute was shroud with procedural impropriety and that the onus to prove such impropriety or fraud fell on the Respondent. In support of this argument, the case of Sithole vs. The State Lotteries Board1 as well as the case of Bater vs. Bater2 was cited. Counsel submitted that the Respondent only produced an incomplete application form which was alleged to have been submitted by the Appellant. The Appellant's position is that he did not submit the form which was produced in the below. It was pointed out that the Appellant produced the following documents to show how he came to purchase the house in dispute: 1. Letter from the Secretary Lusaka Housing Committee to Permanent Secretary - Ministry of Finance 11. Release of Title Deed 111. Certificate of Title relating to the House herein JlO It was argued that the above documents were not authored by the Appellant and that none of the authors of the said documents were called to testify as to the fraud or impropriety of the said documents. According to Counsel, the trial Court misdirected itself in law when he held that the Appellant ought to have produced the correct application form. In this vein, it was argued that applications of this nature were submitted to the relevant government Ministries and as such the Appellant could not be expected to produce the documents. Alternatively, it was submitted that the failure by the Appellant to produce the correct application was not proof of fraud. That the standard of proof for fraud is much higher than the mere preponderance of probabilities. Counsel argued that the Respondent in the Court below sought to show that the sale of the house in dispute was irregular as the Appellant was not the sitting tenant of said house. Counsel cited the case of Beatrice Muimui vs. Sylvia Chungu3 where this Court held: "We do not subscribe to the argument that being a sitting tenant is the sole criterion in purchasing of quasi- government house in the current policy of empowering employees by Government. We take judicial notice that the other important criterion is that Jll the potential purchaser has to be an employee of the Government/ quasi-government organization" o And that also in the case of Workers Compensation Fund Control Board vs. Kangombe and Company2 this Court further observed that: "We are not able to say that Muimui and similar cases on the sale of Government/quasi-government houses were wrongly decided and that there is sufficiently strong reason to decline to follow them. Muimui is still good law". It was submitted that on the basis of the above authorities the fact that the 'Appellant was never a sitting tenant of the house in dispute was not fatal and neither was it evidence of fraud. That the Appellant satisfied the more important criterion of being a civil servant and that he was entitled to purchase the said house not withstanding that he was not a sitting tenant. In support of ground three, it was submitted that the Appellant was eligible to purchase the house in issue as he was a government employee and at the time that he purchased the said house he had not benefited from the sale of any government or Council house or at all. It was pointed out that this position was J12 conceded to by DWI in cross examination when he acknowledged that the Appellant had finished paying for the house in dispute long before he was offered to purchase the Copperbelt University house. And that DWl conceded in cross examination that the VIP houses were later sold to government employees even though initially they were not on sale. Counsel prayed that the appeal be allowed with costs to the Appellant. In his brief oral submission, learned Counsel Mr. Kalaluka contended that an unsigned application form does not prove fraud and that the form produced by the Respondent may have been a draft application form. On behalf of the State, learned Counsel Mr. Mukwasa relied on the Respondent's Heads of Argument which he also briefly augmented with oral submissions. In response to ground one, it was submitted that there was evidence to support the fact that for one to purchase a VIP house, the correct procedure was to seek the authority or consent of the Secretary to Cabinet. Counsel relied on Clause 11 of the Handbook on Civil Service House Ownership Scheme and pointed J13 out that initially VIP and institutional houses were excluded from the sale. That the government took deliberate measures not to sell VIP houses and institutional houses. Provision was made that should those occupying VIP houses choose to purchase government pool houses they would be allocated government pool houses which could later be sold to them. Counsel argued that subsequently some VIP houses were made available for sale and that a system was established to distinguish between VIP houses that were available for sale and those that were not. That the practice which was adopted was that an officer intending to purchase a VIP house had to seek the authority or consent from Secretary to the Cabinet. That the consent of the Secretary to the Cabinet in effect acted as the declassification of the VIP house there by rendering it available for purchase in terms of the provisions of Cabinet Office Circular of 1996. That the consent by the Secretary to the Cabinet curbed any possible abuses by Controlling Officers who might use their position to purchase more than one house. Counsel argued that DW 1 's evidence on this point was explicit and the Appellant was bound to follow the procedure. Counsel argued that in the Court below the Respondent produced a letter authored Mr. F. M. Siame to further J14 cement the existence of such a practice. Counsel conceded that such a procedure was not documented but that it was accepted practice which the Appellant by virtue of his position knew or ought to have known. That the Appellant failed to demonstrate the alternative procedure by which a VIP house could be declassified. Counsel relied on the case of Malindi vs. Ford4 • In response to ground two, it was argued referring to Collins Softback English Dictionary that the ordinary meaning of the word 'impropriety' is - an improper act or use. That in this case, the Appellant did not act properly as the purchase of the house was without authority and irregular as he flouted the correct procedure. That by his own evidence the Appellant conceded that he did not make any application to the Secretary to the Cabinet but instead he applied to the Permanent Secretary Ministry of Works and Supply. That impropriety was further evident by the Appellant's application form which was unsigned and it was not completed by persons mandated to do so. That although the Appellant disputed its authenticity he failed to produce the application form which he allegedly submitted and which he could have retrieved from any one of the offices where it was forwarded to. It was submitted further that it was improper J15 that the Appellant purchased the house when he was not a sitting tenant at the time. Clause 2. l(a) of the Handbook was referred to which provides the criteria for eligibility, that is, being a confirmed civil servant and a legal tenant. Counsel submitted that the case of Beatrice Muimui vs. Sylvia Chungu3 is also supportive of this argument. That by his application to purchase the disputed house, the Appellant made the following representation:- 1. That the house was available for sale; 2. That he was eligible to purchase it; and 3. That there was no bar to purchase it The Appellant as Pennanent Secretary ought to have known that the house was a VIP house which could only be sold after consent of the Secretary to the Cabinet. The case of Derry v. Peek5 was cited in support of this argument. It was submitted that the flouting of procedure and the making of false representation upon ,vhich the government acted when it sold the Appellant the house all point to fraud on the part of the Appellant and the reasonable inference in the circumstances is that the house was purchased through J16 improper means and that, therefore, the Court below cannot be faulted. In response to ground three, it was submitted that the intention of the government in implementing the Civil Service Home Ownership Scheme was to empower civil servants and to do so equitably and that this intention is demonstrated by Clause 2.2(b) of the Handbook where it is provided that: "The following categories of civil servants shall not be eligible to purchase. government pool houses . . . (b) a civil servant who is a sitting tenant and benefited from the sale of Council Houses." Counsel argued that it is clear that a civil servant who benefited from the sale of quasi-government houses was not eligible to purchase government pool houses or vice versa. That it would be contrary to the intention of government to assert that the Appellant was entitled to buy one house from Copperbelt University and another from government. This is because if one was precluded from buying a government pool house, on the ground that one had previously purchased a council house, it would be absurd if the same were not applicable in the case of other quasi-government houses. It was pointed out that at the time that the Handbook was released, CBU had not commenced the sale of its houses and it was, therefore, not possible to have a similar provision to Clause 2.2(b) above in respect of CBU houses. That, therefore, the trial Judge was on firm ground when he held that the Appellant was only entitled to purchase one house. Counsel urged us to dismiss the appeal with costs to the Respondent. In his oral submissions, Mr. Mukwasa posed a question: Was it the intention of the government policy that one civil servant should bene'fit twice? Counsel pointed out that the Appellant did admit that he benefited twice and that this should not be allowed as it was not the intention of the policy. We have considered the evidence on record, the judgment of the Court below and the submissions by learned Counsel for the parties. We shall deal with grounds one and two together. It is common cause that the Appellant bought two houses, that is, the house in dispute and the house in Kitwe which was sold to him by virtue of his having worked at CBU as a lecturer. The Court below found as a fact that when the Appellant was offered J18 the house in dispute, CBU had not yet made a decision to sell its housing uni ts. Both learned Counsel dwelt on Cabinet Office Circular Minute of 1996. In our view, the Circular is self explanatory and in fact does not favour Mr. Kalaluka's argument. It starts off by referring to "Officers occupying VIP houses who wish to buy government pool houses." While we agree with Mr. Kalaluka, that the Appellant was not in occupation of a VIP house, the introduction to the clause above clearly reveals that the sale of VIP houses was restricted and that those in occupation of VIP houses had to opt to purchase government pool houses which depended on availability and of course consent of the Secretary to the Cabinet. We take the view that if stringent measures were put in place with regard to those officers occupying VIP houses, there could not be any less stringent measures for those who were not sitting tenants of VIP houses. We tend to agree with the learned Senior State Advocate that obviously the government had to establish a procedure when it came to the sale of VIP houses. The procedure adopted was outlined by DWl and the fact that it was not documented is not sufficient reason to disregard it. We agree with the State that the procedure in the sale of VIP houses J19 included declassification of the VIP houses there by bringing the houses under the provision of Cabinet Office Circular Minute of 1996. And obviously whether one was a sitting tenant or not, as long as it was a VIP house, the consent of the Secretary to the Cabinet was a requirement before the sale could proceed. The Court below was entitled to believe the evidence of DWI as to the procedure which was followed with regard to the sale of VIP houses such as the house in dispute. We are fortified in this view by the fact that VIP houses were not included in the category of government pool houses and therefore, could not be sold in the usual manner. Indeed, the clause cited above taken from Cabinet Office Circular of 1996 seems to confirm this as we have earlier alluded. Further, it is clear from the Handbook that government's intention was to sell government pool houses. There is correspondence showing that those in VIP houses were advised to channel their application through the Secretary to the Cabinet. In fact at the time of allocation, the house in issue was not vacant, yet the allocation slip indicated that the Appellant was required to take occupation within a week. It appears that the appellant was receiving special treatment but obviously outside the laid down rules. J20 As to the argument that the Court below erred in finding that the purchase of the house was shroud with procedural impropriety, we agree that where fraud is alleged the standard of proof is higher than the mere balance of probabilities. According to Mr. Kalaluka, the Respondent only relied on an incomplete application form which was allegedly submitted by the Appellant. Basically, the State is saying the application made to a fellow Permanent Secretary was not the correct procedure. Mr. Kaluluka, however, pointed out that the Appellant produced the letter from the Secretary) Lusaka Housing Committee to the Permanent Secretary; letter of Release of Title Deeds and the Certificate of Title. It is interesting to note that the Letter of Release is titled "Release of Title Deed for pool house" The question is, who declassified the VIP house into a government pool house since the procedure laid down was not followed? Indeed, we agree with the State's submission that the speed at which the whole process was carried out from allocation to the letter of Release of title deed to issuance of title deeds points to the fact that the process was not done in good faith. J21 The allocation slip is dated 12th January, 2001 while the Letter of Release instructing the Commissioner of Lands to release the title deed is dated 1st March, 2001 and the title deed is dated 23rd May, 2001. Further, we cannot find fault in the lower Court's holding that the Appellant ought to have produced the correct form. In this case, the Appellant failed to produce his application form; was not a sitting tenant; he flouted procedure laid down by not obtaining consent from the Secretary to the Cabinet, in our view all this point to impropriety. And we are quick to agree that the fact that the Appellant was not a sitting tenant cannot be held against him going by the plethora of authorities such as Beatrice Muimui vs. Sylvia Chungu3 • However, looking at the circumstances of this case, we take the view that as a person who held a senior government position, the Appellant ought to have known the procedure to follow and the Court below cannot be faulted ted in its finding having regard to the evidence before it. Ground one and two, therefore, fail. With regard to ground three, Mr. Kalaluka argued that in fact DWI conceded that the Appellant had finished paying for the J22 house in dispute before he was offered to purchase the CBU. In our view, whether he had finished paying for the house or not is not an issue. The main issue is how the Appellant managed to purchase a VIP house which according to the government was not declassified as a government pool house by the Secretary to the Cabinet. In essence, the house in question was not available for sale at the time that the Appellant purportedly purchased it. It is quite obvious that the intention of government was that Civil Servants or Zambian citizens should not benefit twice from the housing scheme in order to empower more Zambians whether in government or quasi-government institutions. Clearly, the Rules precluded the Appellant or any other person from buying more than one house. This is the spirit behind the Home Ownership Scheme and it 1s laid bare in the Handbook and documents relating to the Scheme. The Appellant should be content with the fact that the CBU house is not in issue. We cannot fault the learned Judge on his finding that the Appellant was not entitled to purchase two houses. Ground three, also fails. JZ3 In the circumstances, this appeal is dismissed with costs to the Respondent to be taxed in default of agreement. RTD D. K. CHIRWA AG/ DEPUTY CHIEF JUSTICE fJ E. N . C. MUYOVWE SUPREME COURT JUDGE J24