Gordon Murray v Mtine (Appeal 204 of 2003) [2003] ZMSC 69 (28 October 2003)

IN THE SUPREME COURT FOR ZAMBIA - (cid:9) APPEAL NO. 204/2003 SCZ/8/318/2003 HOLDEN AT LUSAKA [CIVIL JURISDICTION] BETWEEN: GORDON MURRAY (cid:9) - (cid:9) APPELLANT AND CLOTILDA TEMBI C. MTINE (cid:9) - (cid:9) RESPONDENT Carom: (cid:9) Sakala, CS, Mambilima and Silomba, 355 on the 5th August, 2003 and 28" October 2003. For the Appellant Mr. M. N. Ndhlovu of Chifumu Banda and Associates. (cid:9) For the Respondent Mr. C. Hakasenke of Hakasenke and Company. JUDGMENT MAMBILIMA 35, delivered the Judgment of the Court. Authorities referred to: Gordon Alexander Murray vs Attorney-General. SCZ Appeal No. 124 of 2000. Irene Muhongi Samba vs Attorney-General 1999/HP/1690. This is an appeal against the Ruling of the Court below dismissing the Appellant's applications to Stay an Order of Possession granted by the said Court in favour of the Respondent in respect of Stand No. 14 Mushakashela Road, Woodlands and for review of the said Order. The facts giving rise to this appeal are common cause. The Appellant is a British national who is an established resident in Zambia. He was a confirmed civil servant who worked for the Zambian Government from 1959 up to 1998, when he retired. In the course of his employment, he occupied House No. 14, Mushakashela Road, Woodlands. As an established resident, he was eligible to own land under Section 3 of the Lands Act subject to Presidential Consent. His application to purchase the house he was occupying was rejected by the Housing Committee on account that he was not, a Zambian. The house was instead sold to the Respondent, who was not a sitting tenant. This rejection was upheld by the High Court. When the matter came on appeal before us in SCZ Appeal No. 174 of 2000 (1) we held, in our Judgment delivered on 28th August 2002, that as an i established resident who was a sitting tenant, and a confirmed civil servan t, the Appellant was eligible to purchase the Government Pool House subject to some conditions, one of which was that he should obtain Presidential consent. The Housing Committee had not given him an opportunity to obtain This is an appeal against the Ruling of the Court below dismissing the Appellant's applications to Stay an Order of Possession granted by the said Court in favour of the Respondent in respect of Stand No. 14 Mushakashela Road Woodlands) and for review of the said Order. The facts giving rise to this appeal are common cause. The Appellant is a British national who is an established resident in Zambia. He was a confirmed civil servant who worked for the Zambian Government from 1959 up to 1998, when he retired. In the course of his employment, he occupied House No. 14, Mushakashela Road, Woodlands. As an established resident, he was eligible to own land under Section 3 of the Lands Act subject to Presidential Consent. His application to purchase the house he was occupying was rejected by the Housing Committee on account that he was not a Zambian. The house was instead sold to the Respondent, who was not a sitting tenant. This rejection was upheld by the High Court. When the matter came on appeal before us in SCZ Appeal No. 174 of 2000 (1) we held, in our Judgment delivered on 28 th August 2002, that as an established resident who was a sitting tenant, and a confirmed civil servant, the Appellant was eligible to purchase the Government Pool House subject to some conditions, one of which was that he should obtain Presidential consent. The Housing Committee had not give him an opportunity to obtain Presidential consent. We ordered that the Appellant should be given an opportunity to apply for Presidential consent and once he got it, he should buy the house if it had not yet been sold to another Zambian civil servant. In the event that the house had been sold, the appeal would stand dismissed. From the record of appeal, the Respondent was offered the house on 7th August, 1998. She accepted the offer and by February, 2001, she had paid the full purchase price and the Ministry of Finance authorized the release of title deeds to her. The Respondent then took out Originating Summons in the Court below, on 29th October 2002, seeking an Order of Possession of the disputed house. Meanwhile, the Appellant obtained Presidential consent to purchase the house on 24 th September, 2002. On the authority of our Judgment of 28 th August, 2002, the Court below granted the Order of Possession to the Respondent on the ground that by the time that the Appellant had obtained Presidential consent, the house had already been sold to the Respondent. On the same premise, the Appellant's application for a Stay of the Ruling and the application for review were refused. The Appellant has now appealed to this Court against this refusal, citing four grounds of, appeal, namely: that the learned trial Judge erred in law and fact when he held that the Respondent was qualified to purchase House No. 14, Mushakashela Road, Woodlands Lusaka; that the learned trial Judge erred in law and fact by holding that the alleged sale of the said house was concluded in February 2002, in the face of an existing caveat which had been filed against such transaction by the Appellant since 12" December 1998; that the learned trial Judge erred in law and in fact by ordering the Respondent to take immediate possession of the said house without giving proper consideration for or reasoning against the Appellant's application to Stay Execution and for review of the earlier Ruling and order, given on 25" November 2002 and; that the learned trial Judge erred in law and in fact by not taking Judicial notice of the fact that at the time of the alleged conclusion of the sale of the said house, there were pending Court proceedings against the Attorney-General for the purpose of declaring the rights and entitlements of the Appellant to purchase the house. In support of the first ground of appeal, Mr. Ndhlovu referred us to the Handbook on the sale of Government Pool Houses. He submitted that the Appellant was a bona fide sitting tenant, a confirmed civil servant and an established resident in Zambia and therefore entitled to buy the house. In response to this ground of appeal, Mr. Hakasenke submitted that all the issues raised by the Appellant in this ground of appeal, were not before the trial Court. According to Mr. Hakasenke, the Court below was merely faced with the interpretation of this Court's Judgment in Appeal No. 174 of 2000. This Court had held that the Appellant could purchase the house after obtaining Presidential consent if the house had not already been sold to a Zambian civil servant. Mr. Hakasenke submitted that since the house had already been sold to another Zambian civil servant, the Appellant was ineligible to purchase the same house over which an innocent third party acquired rights. On the second ground of appeal, Mr. Ndhlovu submitted that the sale of the house to the Respondent was reckless, unwarranted and a cruel denial of the Appellant's rights, interests and entitlement. He pointed out that the property was encumbered in that there was a caveat lodged by the Appellant on 4" December 1998. According to Mr. Ndhlovu, the sale transaction was extremely irregular. This irregularity was not considered by the trial Judge resulting in gross unfairness to the Appellant. Mr. Hakasenke's response is that a caveat does not stop parties from entering into and concluding sale agreements. It merely stops a transfer or an assignment being registered. Submitting in support of the third ground of appeal, Mr. Ndhlovu stated that the learned trial Judge was hasty and glossed over the real issues when he ordered the Respondent to take immediate possession. He submitted further that the Judge grossly misconstrued the cases of Irene Muhongi Samba vs Attorney-General(2) and Gordon Al!xander Murray vs Attorney-Generalifi. According to Mr. Ndlovu, the cardinal issue in both cases was: has there been a valid sale of the property. He stated further that the validity of the sale must be determined as a fact. In response, Mr. Hakasenke submitted that the finding, on the Appellant's rights, if any, to purchase the house was already made by this Court and the learned trial Judge merely followed that finding. He submitted further that the learned trial Judge was on firm ground in ordering immediate possession because the Appellant did not oppose the application. On the final ground of appeal, Mr. Ndhlovu submitted that when the Respondent made final payment to purchase the house in February 2001, there were pending Court proceedings against the Attorney-General in which the Appellant was seeking a declaration on his accrued rights and his entitlement to the house, having been a civil servant and a sitting tenant. According to Mr. Ndhlovu, the learned trial Judge ought to have taken judicial notice of this fact. Had he done so, he would have reached the inescapable conclusion that the Respondent's action of paying for the house was not done in good faith and innocently. In response, Mr. Hakasenke submitted that by the time that the learned trial Judge heard this matter, the Appellant's alleged rights and entitlement to purchase the house had \ already been determined by this Court. He went on to state that this action was commenced on 29" October 2002 while our Judgment was delivered on 28" August 2002. (cid:9) The learned trial Judge was therefore merrely interpreting the Judgment of this Court. We have considered the submissions by Counsel and the Ruling of the "\ Court below. It is quite clear to us that the rights of the parties were adjudicated upon by the High Court, culminating in an appeal to this Court which-was determined on 28" August 2002 in 5CZ Appeal No 174 of 2000. The gist of our Judgment was very clear. It was that the Appellant should be availed an opportunity to obtain Presidential consent and if he did so, be sold the house if it had not yet been sold to another Zambian civil servant. We made it clear that if the house had been sold, then the appeal would stand dismissed, With this condition precedent, it was therefore incumbent upon the Appellant to ascertain whether the house had been sold before applying for Presidential consent. He was only to apply for Presidential consent if the house had not been sold. The sequence of dates of the transactions show that by 28" August 2002, when we handed down our Judgment the house had already been sold. The documents on record show that the Respondent was offered the house on 7" August 1998 and by February 2001, she had paid the full purchase price. 4. • The arguments now being advanced by the Appellant in the grounds of appeal and the heads argument go to the root of the issues which ought to have been canvassed in the proceedings which culminated in 5CZ Appeal No. 174 of 2000(1) when the Court was determining the parties' respective rights. We agree with Mr. Hakasenke that the learned trial Judge in this case was merely interpreting our Judgment of 28th August 2002 in 5CZ Judgment No. 174 of 2000. In our view, he correctly interpreted our Judgment. We therefore zfind no merit in this appeal. It is dismissed with costs. E. L. 5akala CHIEF JUSTICE I. C. Mambilima JUDGE SUPREME COURT 5. 5. Silomba JUDGE SUPREME COURT 8