Fanny Gondwe Sikazwe v Wamunyima (Appeal 129 of 2005) [2007] ZMSC 142 (4 December 2007)

IN THE SUPREME COURT OF ZAMBA HOLDEN AT NDOLA Appeal No. 129/2005 (CIVIL JURISDICTION) BETWEEN: FANNY GONDWE SIKAZWE Appellant AND ANNIE WAMUNYIMA Respondent Coram: Sakala, CJ., Mumba and Chitengi, JJS. On 6th June and 4th December, 2007 For the appellant: Mr. Q. M. Kalonde of Quintion M. Kalonde Legal Practitioners For the Respondent: In Person JUDGMENT Sakala, CJ., delivered the judgment of the Court. Cases referred to: 1. Beatrice Muimui Vs Sylvia Chunda, SCZ No. 50/2000 2. ZCCMLtd Vs Richard Kangwa and Others, SCZNo. 25/2000 3. Victor Kantundu Vs Bonny Khunga, SCZNo. 82/2000 4. Felix Kanyima Vs Michael Musonda, SCZ No. 99/2000 J2 This appeal emanates from a judgment of the High court on appeal that upheld the decision of the Subordinate Court that the Respondent was the owner of the house under dispute; and further that the Appellant should vacate House No 110/26 Mpatamatu, Luanshya, within 30 days from the date of the judgment. The brief facts of the case are that by a Tenancy Agreement dated the 1st April, 1997, the Appellant’s late husband, W. K. Sikazwe, entered into a Tenancy Agreement with the Zambia Consolidated Copper Mines Limited, Luanshya Division, whereby W. K. Sikazwe was to take a Tenancy of House No. 110/26 Mpatamatu at a monthly rent of K31,600.00, inclusive of electricity and water. This Agreement was effective from 1st April, 1997 and would continue until determined on the first day of any calendar month. The Respondent was an employee of the Zambia Consolidated Copper Mines Limited, where she served for about 20 years, and occupying another mine house. Later, she was offered to buy House No. 110/26 Mpatamatu by the Zambia Consolidated Copper Mines Limited (ZCCM) at a price of KI,843,000.00. A contract of sale was signed by the parties on 18th August, 1998. Clause (h) of the Special Conditions of the contract provided that iir the event of the house being occupied by a Tenant of the Vendor, the Purchaser shall enter into a Tenancy Agreement with the said Tenant for a period of not less than two years from the date of the contract. , On the foregoing facts, the Respondent commenced proceedings by way of a Writ of Summons at the Subordinate Court of the First Class holden at Luanshya against the Appellant claiming for; an Order that the Appellant be removed from House No 110/26, which she occupied, c J3 payments of K391,055.00 for electricity bills from November 1998 to May 1999, and payment of K567,798.00 water bills from November 1998 to the time of the claims and costs. The Subordinate Court of the First Class adjudged that, the Respondent was the owner of the house No. 110/26 Mpatamatu Township and ordered that the Appellant vacates the said house within 30 days and further ordered that the Respondent pays K 100,000.00 per month until the whole sum is fully paid and costs to be bom by each party. The Appellant appealed against the Subordinate Court’s decision to the High Court and raised three grounds, namely: 1. That the trial Court erred in law and fact by holding that the Respondent, who is not a sitting tenant to the premises known as house No. 110/26 Mpatamatu Township was entitled to purchase the house and was a lawful purchaser of this house; 2. That the trial Court erred in law and fact by holding that the Appellant should pay the Respondent all the out-goings to this house for there was no agreement that the Appellant do pay the out-goings to this house and that the contract of supply of electricity and water was between Zambia Electricity Supply Company (ZESCO) and the Respondent on the other hand; and 3 3. That the trial Court erred in law and fact in making judgment in favour of the Respondent relying on the case of BEATRICE MUIMIJI VS SYLVIA CHUNDA(1) when, this case has been ■ t J4 superceded by the case of ZCCM Ltd Vs RICHARD KANGWA AND OTHERS(2) and VICTOR KANTUNDU VS BONNY KHUNGA.(3) At the hearing of the appeal at the High Court, Counsel for the appellant, Mr Moono, submitted, inter alia, that it is now settled law that where a sitting tenant is in occupation, it is only just and fair that the house is offered to the sitting tenant. He cited the case of RICHARD KANGWA VS ZCCM(2) in which this Court held that in a quasi Government institution, it is the Government policy to empower its citizens with shelter, and a sitting tenant must be offered the house he or she occupies if the house has to be sold. He further submitted that the Respondent never stayed in the house, and that therefore, it was wrong for ZCCM to have offered the house to the Respondent, completely ignoring the interest of the Appellant. The Respondent’s submission was that ZCCM were not selling houses to sitting tenants only but to employees; except for those who worked for subsidiaries of ZCCM like Mpelembe Drilling and Ndola Lime. After considering the submissions and evidence, the appellate Judge, ruled that there was no basis for the Respondent to demand that the Appellant pays for water and electricity as the Tenancy Agreement clearly stated that the rent of K31,600.00 was inclusive of electricity and water. He found that the Magistrate misdirected herself when she ordered the Appellant to pay KI 00,000.00 per month until the whole amount was paid. He upheld the appeal on the issue. J5 The Appellate Judge further found that the Tenancy Agreement did not state anywhere that the tenant would have an option to buy the house. ' The Court pointed out that being a sitting tenant was not the only qualification for one to be offered a house one was living in, but that one must also be an employee of ZCCM, (RICHARD KANGWA VS ZCCM.(2)) The Appellant’s Appeal was dismissed by the High Court; hence the appeal to this Court. The Appellant filed a memorandum of appeal containing one ground namely: that the learned appellate High Court Judge erred on both a point of law and fact when he disregarded the appellant’s arguments that as a sitting tenant, she was entitled to purchase the subject house. The Appellant, as well as the Respondent, filed written heads of argument based on this ground. At the hearing of the appeal, Mr Mumba, on behalf of the Appellant relied on the written heads of argument. The Respondent, who appeared in person, also relied on her written heads of argument and made brief oral submissions. The Summary of the written arguments and submissions on behalf of the Appellant was that the Appellant was a sitting Tenant of House No 110/26 Mpatamatu, Luanshya and assumed Tenancy of the subject house upon the death of her husband who was a Tenant, while the Respondent was occupying and in fact bought another Mine House in Luanshya; The Appellant’s Counsel contended that where a sitting tenant is in occupation of a house, it is only fair and just that the house be offered to the sitting tenant. Counsel cited the case of ZAMBIA CONSOLIDATED COPPER J6 MINES LIMITED VS KANGWA AND OTHERS(2), where the Court held that the houses should have been sold to the Respondents who were not employees of Zambia Consolidated Copper Mines Limited (ZCCM); but employees of subsidiary companies of Zambia Consolidated Copper Mines Limited and sitting Tenants of the subject houses. Counsel also cited the. cases of VICTOR KATUNDU AND BONNY KHUNGA,(3) FELIX KANYIMA V MICHAEL MUSONDA/45 where the Supreme Court similarly held that the subject houses should be sold to the Appellants who were sitting tenants and employees of Techpro Limited and occupied the houses in question as an incident of their employment. Counsel further submitted in his written heads that the Appellant’s late husband was a sitting Tenant of the subject house in this matter and an employee of the subsidiary company of Zambia Consolidated Copper Mines Limited (ZCCM) (Nchanga Farms). The gist of the written heads of argument for the Respondent is that the Appellant’s late husband was a Tenant of Zambia Consolidated Copper Mines Limited (ZCCM) from 1st April, 1997 in respect of the house number 110/26 Mpatamatu, and was an employee of Nchanga Farms, which ceased' being part of Zambia Consolidated Copper Mines Limited (ZCCM) in 1996. The Respondent stated that she entered into a contract of sale in relation to house No. 110/26, Mpatamatu, with Zambia Consolidated Copper Mines Limited (ZCCM). The Respondent cited the case of BEATRICE MUIMUI VS SYLVIA CHUNDA,(1) where this court held that for a person to be eligible to buy a Zambia Consolidated Copper Mines Limited house, he or J7 she had to be a sitting Tenant and an employee of Zambia Consolidated Copper Mines Limited (ZCCM) or of its subsidiary. In her brief oral submissions, the Respondent stated that as an employee of Zambia Consolidated Copper Mines Limited (ZCCM), she was entitled to be sold the house first. The Respondent prayed that this Court orders the Appellant to pay for the utilities, and that the appeal be dismissed. We have carefully examined and considered the arguments and submissions by learned Counsel for the Appellant, and the Respondent. We have also examined evidence on record and the judgment of the High Court below. As we see it, the dispute in this appeal centers on a Tenancy Agreement dated the 1st of April, 1997 that the Appellant’s late husband, W. K. Sikazwe, entered into with the Zambia Consolidated Copper Mines Limited, where by Mr. Sikazwe was to occupy house No. 110/26 Mpatamatu at a monthly rent of K31,600.00 inclusive of electricity and water oh one hand; and the offer made to the Respondent to buy house No. 110/26 Mpatamatu by Zambia Consolidated Copper Mines Limited at the price of KI,843,000.00 on the other hand, which resulted in a contract of sale being signed on the 18th of August, 1998. We are in agreement with the Subordinate Court and the High Court that while the Appellant became a sitting Tenant as a result of the death of the spouse, Mr Sikazwe, the Tenancy Agreement did not have any clause that gave the tenant an option to buy the house. Consequently, no offer was made to the Appellant by ZCCM to her to buy the house. J8 On the other hand, Zambia Consolidated Copper Mines Limited offered to sale house No. 110/26 Mpatamatu to one of its employees, the Respondent leading to the signing of the contract of sale by the parties on 18th August, 1998 at a cost of KI,843,OCKfOO. We repeat what we said in the case of RICHARD KANGWA VS ZAMBIA CONSOLIDATED COPPER MINES LIMITED(2) that being a sitting tenant was not the only qualification for one to be offered a house one was living in. One had also to be an employee of ZCCM. In the instant case, there being no clause in the Tenancy Agreement that the tenant would have an option to purchase the house, the Appellant cannot claim what was not contained in the Tenancy Agreement. Consequently, though the Respondent did not occupy the disputed house, she was never-the-less offered the house by Zambia Consolidated Copper Mines Limited, as an employee leading to a contract of sale being signed. Having said that, we find that the lower Courts were on firm ground when they decided in favour of the Respondent that she was the owner of the house under dispute and that the Appellant vacates the house. The appeal is, therefore, dismissed. Oh the facts of this case; we make no order as to costs. Before we leave this appeal,, we must point out that this record of appeal was not prepared in accordance with Rule 58 (4) of the Supreme Court Rules, Cap 25 of the Laws of Zambia, which sets out how the documents in a record of appeal should be arranged. In -future, officials in J9 the supreme Court Registry should ensure that Records of Appeal which do not comply with Order 58 (4) should not be accepted. E. L. Sakala CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE SUPREME COURT JUDGE