Kabwe Municipal Council and Anor v Chrispin Mataa Nyoka (APPEAL NO 187 OF 2018) [2019] ZMCA 339 (23 October 2019)

.. IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NQ 187 OF 2018 BETWEEN: KABWE MUNICIPAL COUNCIL LUKANGA WATER A~ E~ ANY AND (.e':~r, CHRISPIN MATAA N ~:-- - - . . J EGl...,fRY 50067 LU 1 ST APPELLANT 2 ND APPELLANT RESPONDENT CORAM: Chashi, Mulongoti and Leng a Ieng a, JJA On 25th September, 2019 and 23rd October, 2019. For the Appellants: Mr. B. J. Abwino - Council Advocate (Kabwe Municipal Council) For the Respondent: Mr. J. Zulu - Senior Legal Aid Counsel (LAB) JUDGMENT Lengalenga, JA delivered the Judgment of the Court. Cases referred to: 1. LIVINGSTONE CITY COUNCIL v SINYWIBULULA - SCZ APPEAL NQ 35 OF 2008 J1 2. LUSAKA CITY COUNCIL & ANOR v GRACE MWAMBA & ORS - {1999) ZR 97 3. COL KASHEKELE C. KAYOMBO & ORS v THE COMMITTEE OF THE SALE OF GOVERNMENT POOL HOUSES & ORS - SCZ JUDGMENT NQ 21 OF 1991 Legislation referred to: 1. THE WATER SUPPLY AND SANITATION ACT, NQ 28 OF 1997 OF THE LAWS OF ZAMBIA 2. THE LOCAL GOVERNMENT ACT, CHAPTER 281 OF THE LAWS OF ZAMBIA 3. THE COMPANIES ACT, CHAPTER 388 OF THE LAWS OF ZAMBIA Other works referred to : 1. BRYAN GARNER'S BLACK LAW DICTIONARY 1.0 INTRODUCTION 1.1 This is an appeal against Hon Mr. Justice Charles Zulu's judgment of 29th June, 2018 delivered in the High Court. 2.0 BACKGROUND TO THE APPEAL 2.1 The brief background to this appeal is that the Respondent herein commenced an action by way of Writ of Summons against the Appellants herein in which he claimed the following reliefs: {i) A declaration that pursuant to Circular NQ 2 of J2 1996 as amended by Minute NQ MLGH/12/25/57 of 2001, the plaintiff (Respondent) was entitled to be offered house no. 2, Mulungushi Dam, situate in Kabwe; (ii) An order directing the 1st defendant (1st Appellant) to honour its offer letter to the plaintiff (Respondent) dated 5th May, 2015 and its resolution under Minutes ClS0/08/14, by proceeding to value the property and conclude the sale; (iii) In the alternative to (i) and (ii) an order directing the 1st defendant (1st Appellant) to offer the plaintiff an alternative house acceptable to the plaintiff; and (iv) An order of injunction to restrain the defendants (Appellants) from evicting the plaintiff (Respondent) from house no. 2 Mulungushi Dam, Kabwe. 2.2 The evidence on record was that the Respondent previously worked for the 1st Appellant from 1991 prior to his joining the 2nd Appellant in 2007. As an incident of his employment he was authorised to occupy house no. 2 Mulungushi Dam and also at that material time the processing and distribution of water in the district was under the 1st Appellant's mandate. 2.3 Following the government policy to empower Zambians with house ownership, Circular NQ 2 1996 on sale of Council houses was issued . ' . .. J3 in respect of houses owned by local authorities. It was directed that all Council houses were to be sold subject to specified restrictions under item (c) which stated that: "Councils shall identify all houses designated as official residences for their staff and the same shall not be put on sale." 2.4 Based on the above restriction, the subject house was categorised as official residence for members of staff of the 1st Appellant and, therefore, it was not available for sale to the Respondent who was in occupation at that material time. 2.5 However, by a letter dated 5th November, 2001, an amendment to Circular NQ 2 of 1996 was made removing the restriction not to sell Council houses reserved for official residences for senior Council staff but the Respondent was not issued an offer letter. 2.6 Parallel to the sale of Council houses to its eligible sitting tenants and employees of local authorities, the Water Supply and Sanitation Act, NQ 28 of 1997 was enacted. Consequently, in March 2006 the 2nd Appellant company was incorporated from six authorities and two sub-centres in Central Province. Later, by a letter dated 8th October, 2014, under Minute NQ MLGH/101/18/17, the Permanent Secretary ' . J4 directed the transfer of assets from local authorities in Central Province to the 2nd Appellant. 2.7 In the Respondent's testimony, he stated that he was not aware of the letter of 5th November, 2001 that removed the restriction on the sale of official residences for senior Council staff, until 2010. According to his evidence, that was when he started pursuing the issue of the offer letter and his right to purchase the subject house. 2.8 It was the Respondent's further testimony that by a letter dated 5th May, 2015 written by the Town Clerk of the 1st Appellant addressed to him, he was given a provisional offer to purchase the subject house and he was advised that the full Council at a meeting held on 23rd February, 2015 under Minute NQ C159/58/14 resolved to offer him the subject house for sale subject to valuation of the property. 2.9 The Respondent further testified that while he was awaiting the valuation of the house, by a letter dated 14th September, 2016 written by the Town Clerk, he was advised that at the time the 2nd Appellant was incorporated, Mulungushi dam including the houses attached thereto, were transferred to the 2nd Appellant, and therefore the Respondent was ordered to vacate the subject house. . ' . JS 2.10 Mr. Sydney Mwale, the Human Resources Administration Manager for the 2nd Appellant was the 2nd Appellant's witness who reaffirmed that the Respondent was a former employee of the 2nd Appellant who served as Plant Supervisor at Mulungushi dam. His testimony was further to the effect that several letters were written to the Respondent at different intervals requesting him to vacate the subject house but he ignored and defied the requests, even after he was paid his terminal benefits in full in 2010. The 2nd Appellant's witness informed the Court below that the 2nd Appellant was eager to take possession of the subject house for use for its dam operations. 2.11 In arguing the Respondent's case, Counsel for the Respondent, Mr. J. Zulu relied on the case of LIVINGSTONE CITY COUNCIL v SINYWIBULULA1 and he likened it to the Respondent's case. He argued that the Respondent was entitled to be offered the subject house for sale and that the offer made by the full Council meeting was incapable of being overturned by the Town Clerk unless a fresh resolution was made to alter the earlier resolution. 2.12 He argued that the Respondent's right to purchase the subject house was in existence before the 2nd Appellant was incorporated. He J6 further argued that the Respondent's right to purchase the subject house was superior because it was earlier in time. 2.13 It was further contended that there was no evidence to the effect that the subject house was transferred to the 2nd Appellant as the letter relied on by the Appellants did not mention that the said house belonged to the 2nd Appellant and that the 2nd Appellant's argument that the house was required for operations of the dam was untenable because it was legally made available for sale to the Respondent. The Court below was urged to find in the Respondent's favour. 2.14 Mr. Siwale, Counsel for the Appellants in the Court below argued that the provisional offer was issued to the Respondent without prior approval from the Minister of Local Government and Housing. He further argued that it was within the Council's mandate to withdraw the provisional offer made to the Respondent because it was offered to him in error. He relied on the Supreme Court decision in the case of LUSAKA CITY COUNCIL & ANOR v GRACE MWAMBA & ORS2 where it was held that: " ...... the offer to the respondent had been made in error and the appellant was entitled to withdraw the offer and correct the situation." .. J7 2.15 Counsel for the Appellants submitted that the Respondent was only offered the house after the subject house was transferred to the 2nd Appellant. 2.16 In his concluding submissions, Mr. Siwale urged the Court below to consider whether the Respondent could rely on Circular NQ 2 of 1996 or whether the same was applicable to pool houses and not institutional houses such as house no. 2 Mulungushi Dam, Kabwe. 2.17 After considering the evidence, the learned trial judge found that the Respondent's case was on all fours with the case of LIVINGSTONE CITY COUNCIL v GEOFFREY SINYWIBULULA. The brief facts of that case were that Mr. Sinywibulula was an employee of Livingstone City Council, who in April, 1999 was allocated institutional house no. 37, Kabompo Road, Livingstone as an incident of his employment. However, the Council refused to offer him the said house for sale based on the reason that it was attached to the fire brigade premises meant to accommodate a senior fire brigade officer. The Supreme Court found in the Respondent's favour by holding that based on Circular NQ 2 of 1996, the offer of the institutional house in which he was a sitting tenant, had to be given to him. J8 2.18 Similarly, in the present case, the learned trial judge followed the cited authority and arrived at the conclusion that the Respondent was legally entitled to purchase the subject house. He, therefore, declared the purported invalidation of the provisional letter of offer, null and void. He further directed the 1st Appellant to undertake the valuation process and to perfect the sale of the subject house to the Respondent. 3.0 GROUNDS OF APPEAL 3.1 Disenchanted with Justice Charles Zulu's judgment, the Appellants have appealed to this Court and advanced the following grounds of appeal: 1. 2. That the learned trial judge misdirected himself in both fact and law when he considered that by virtue of Circular NQ 2 of 1996 on the sale of Council houses as amended by Minutes NQ MLGH/ 102/ 25/ 57 dated 5th November, 2001 house no. 2 situated within the water works Mulungushi dam, Kabwe was available for sale, the amendment was meant for all Council houses which were reserved for Council senior officers except for the house of Town Clerk which must not be sold. That the learned trial judge misdirected himself in fact and erred in law when he did not address his mind to that fact no person can dispose off any Council property without the prior authorisation in written from the Minister of Local Government which the Respondent did not bring before the Court during trial nor the Council J9 3. 4. 5. 6. minutes purporting that a resolution was made by the Council to offer the same house for sale. The learned trial judge misdirected himself in fact and erred in law when he did not address his mind on the fact that by then the Town Clerk of the 1st Appellant did err in issuing the provisional offer and that the 1st Appellant was entitled to withdraw the provisional offer and correct the situation. The learned trial judge misdirected himself in fact and law when he failed to consider that the decision not to sell house no. 2, Mulungushi Dam was not irrational or unreasonable and that there was no procedural impropriety. However that the 1st Appellant could not sell the aforesaid house situate at Mulungushi Dam for operation purposes to Respondent herein in the year 1996 that it was not an entitlement to purchase such a house as it was reserved for operation purposes by virtue of it being located within the Mulungushi Dam. That the learned trial judge misdirected himself in fact and law when he did not consider that at law Lukanga Water and Sewerage Company is a distinct person at law and the Town Clerk of Kabwe Municipal Council by then had no authority to offer for sale house no. 2, Mulungushi Dam, a property belonging to Lukanga Water and Sewerage Company Limited as there was evidence before Court that all equipment, properties, machinery and assets were transferred from the 1st Appellant herein to the 2nd Appellant. That the learned trial judge misdirected himself in fact and law when he did not consider the evidence that house no. 2 is one of the 3 operation houses located within the water works at the Mulungushi Dam, Kabwe and that the Respondent did admit during trial that the three houses were specifically reserved for operation 7. 8. 9. JlO purposes as they are located within the Mulungushi Dam where the water works for the 2nd Appellant is situated. That the learned trial judge misdirected himself in fact when he did not consider the evidence before the Court that the Respondent was in occupation of house no. 2 Mulungushi Dam as a Works Superintendent and after retirement on the pretext that he had not been paid his terminal benefits by the Appellants and as such the Respondent to make application to purchase the aforesaid house in the year 2015. the year 1996 had from That the learned trial judge misdirected himself in fact when rendering his judgment did not consider that the time the 1st Appellant was selling the houses the Respondent was still in occupation of house no. 2 Mulungushi Dam and was not sold the aforesaid house because it is used by officers working within the water works at the Mulungushi Dam where the house is located. Further, the Respondent did testify during trial that there are two more houses which are also being occupied by workers working at the Mulungushi Dam water works. transferred That the learned trial judge erred in fact and law when he held that there was no asset register which was tendered into evidence to show that the house in to Lukanga Water and question was Sewerage Company Limited when in fact in the 1st and 2nd Appellants bundle of documents during trial there was shown a letter marked "no. 4" from the Permanent Secretary, Ministry of Local Government which clearly reads that all assets i.e. properties, plant equipment and water supply and networks taken over from local authorities belonged to Lukanga Water and Sewerage Company Limited. Jll 4.0 APPELLANTS' ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 The Appellants' heads of argument in support of the appeal were filed into Court and Counsel for the Appellants relied on them. 4.2 In support of ground one, it was submitted that in the spirit of empowering Zambians to acquire their own houses, Government decided to sell some of its pool houses to sitting tenants who were civil servants pursuant to Circular NQ 2 of 1996 on the sale of government houses. It was further submitted that Part ( c) of the said Circular, however, stipulated that: "Councils shall identify all houses designated as official residences their staff and the same shall not be put on sale." 4.3 It was further submitted that in 2001, there was an amendment to Circular NQ 2 of 1996 removing the restriction on the sale of Council houses, specifically part ( c) which had provided for the reservation of official residences of senior Council officers, all reserved houses, except for the Town Clerk, Council Secretary's house that should not be offered for sale. 4.4 It was contended that the amended part ( c) of Circular NQ 2 of 1996 was meant for houses specifically reserved for senior Council officers, excluding the Town Clerk's residential house. It was submitted that there was no reference to house no. 2, Mulungushi Dam which forms part of the three institutional houses located within the dam area specifically for operation purposes of the dam. It was further submitted that at that time, the Respondent herein was not part of senior staff as he was a division 2 officer according to his conditions of service. 4.5 In support of grounds 2 and 3 that were argued together, it was submitted that Circular NQ 2 of 1996 has been misconstrued by the Respondent herein because part (b) of the said Circular clearly states that: "the Council shall seek approval of the Minister {Minister of Local Government) prior to the actual sale of the houses, certified true copies of both Committee and the mayor/chairman and Town Clerk/Council Secretary shall be attached to the application for sale of Council houses for the approval of the Minister." full Council, by both signed duly 4.6 It was submitted that in this case, a provisional offer was given to the Respondent without prior approval of the Minister and it was •• . ,• J13 contended that no Council property can be offered for sale without prior consent of the Minister. It was further submitted that even if the said house no. 2 Mulungushi Dam belonged to the 1st Appellant herein, the position was re-affirmed by reference to section 67 of the Local Government Act, Chapter 281 of the Laws of Zambia which states that: "(1) Subject to the provisions of this section, a Council may sell, let or otherwise dispose of any property of the Council, Provided that, where the Council intends to sell a Council asset, the Council shall, before conducting the sale, cause a valuation of the asset to be carried out by the department of the Government responsible for property valuations or by a valuer approved by the Minister. (2) A Council shall not sell, let for a period of fourteen years or more, or otherwise dispose of any land or building except with the approval of the Minister." 4.7 Counsel for the Appellants further submitted that during the trial, the Respondent did not produce certified copies of minutes of both the Council Committee and full Council meetings where a resolution was made supported with an application letter for sale of the purported house situate within the Mulungushi Dam area in Kabwe. J14 4.8 It was contended that part (e) of Circular NQ 2 of 1996 is instructive as to the period within which to purchase the Council houses and the consequences of failure to do so within the said period. It was submitted that in the Respondent's case, he waited from 1996 to 2015 to do so, according to the provisional offer letter for sale of house no. 2 Mulungushi Dam exhibited before the Court below in his bundle of documents. 4.9 It was argued that the word "provisional" meant that the offer was not final but dependant on certain procedures and conditions being followed and reference was made to BLACK'S LAW DICTIONARY, where the learned author defines 'provisional' as "temporary" or "preliminary," meaning "not final." 4.10 In view of the argument advanced, it was contended that it was within the 1st Appellant's prerogative to withdraw the provisional offer of sale of house no. 2, Mulungushi Dam since it was offered in error by the Town Clerk as earlier submitted . Reliance was placed on the case of LUSAKA CITY COUNCIL & ANOR v GRACE MWAMBA & 4 ORS earlier referred to in the background to the appeal. JlS 4.11 In support of ground four, Counsel for the Appellants referred to the case of COL KASHEKELE C. KAYOMBO & ORS V THE COMMITTEE OF THE SALE OF GOVERNMENT POOL HOUSES & ORS3 where the Supreme Court observed that: " .... the Appellants claimed the Respondent's refusal to sell the houses to them was against public policy, discriminatory and unreasonable, they further claimed that failure by the government to sell the houses to them, caused humiliation especially that they were eligible to purchase the houses as sitting tenants. However, the Court did edict the case on the merits that the government had no obligation to sell the houses and the Appellants could not claim that they had a legitimate expectation to purchase the houses as sitting tenants. He found that there was no illegality in the government decision not to sell the houses to the Appellants. The learned judge found that the decision not to sell was not irrational or unreasonable and that there was no procedural impropriety. The learned judge concluded that the government could not sell the houses to all civil servants and that it was a privilege not an entitlement to purchase a government house. He dismissed the Appellants' claim with costs to the Respondents." 4.12 Grounds six, eight and nine were argued together as Counsel for the Appellants were of the view that they raised similar issues. J16 4.13 In support of the said grounds of appeal, it was submitted that it is unequivocal that at the time of publication of Circular NQ 2 of 1996, house no. 2 Mulungushi Dam, Kabwe was the 1st Appellant's property. It was further submitted that the status however, changed on 3th October, 2014 following a letter from the Permanent Secretary of the Ministry of Local Government that directed the transfer of assets from the 1st Appellant (water supply department) to the 2nd Appellant. 4.14 Counsel for the Appellants referred to the Respondent's averment in paragraph 10 of the Statement of Claim filed on 20th September, 2017, that the 1st Appellant offered him the subject property on 5th May, 2015, six months after the Permanent Secretary's letter was written. It was contended that it is worth noting that as of 3th October, 2015 ownership of assets utilized for the supply of water services by the local authorities, including the subject property located at Mulungushi Dam were transferred to the 2nd Appellant. It was submitted that the 2nd Appellant is an entity with legal capacity to own and dispose off property and reliance was placed on section t ' . Jl7 216(1)(a) of the Companies Act, Chapter 388 of the Laws of Zambia which provides that: "1. The directors of a company shall not, without the approval in accordance with this section of an ordinary resolution of the company:- (a) sell, lease or otherwise dispose of the whole, or substantially the whole of the undertaking or of the assets of the company." 4.15 It was submitted that in view of the foregoing cited provision, the assets of a company shall be disposed off by the company. It was further contended that in the present case, the 2nd Appellant's members did not at any point approve the disposal of the subject property or even offer it to the Respondent. It was submitted that, therefore, the Court below erred in law when it failed to consider the 2nd Appellant's ownership of the subject property and concluded that the Respondent is legally entitled to purchase the subject property. 4.16 It was finally submitted that based on the arguments advanced in support of the appeal and the authorities cited herein, the trial court's judgment was erroneously rendered and based on the ma/afide claims by the Respondent herein. 4.17 This Court was therefore urged to reverse it accordingly. J18 5.0 RESPONDENT'S ARGUMENTS IN OPPOSITION TO THE APPEAL 5.1 The Respondent's heads of argument were filed into court by his advocates who relied on the same. 5.2 The Respondent's response to ground one of the Appellant's appeal is that the issue for determination is whether pursuant to Circular NQ 2 of 1996 as amended by Minute NQ MLGH/102/25/57 of 2001, the Respondent was entitled to be offered and sold house no. 2, Mulungushi Dam, Kabwe. 5.3 It was submitted that it was not disputed that the Respondent was an employee of the 1st Appellant and was a senior officer in division 2. It was further submitted that the Respondent was also a sitting tenant of house no. 2, Mulungushi Dam, Kabwe in 1996 when Circular NQ 2 of 1996 (MLGH/102/45/31) came into effect on 2nd May, 1996. 5.4 It was further submitted that under the said Circular, all Council houses were to be sold to sitting tenants except for those houses specified in clause ( c) of the said Circular which provided that: "Councils shall identify all houses designated as \ \ J19 official residences for their staff and the same shall not be put on sale." 5.5 This Court's attention was drawn to the fact that Circular NQ 2 of 1996 was subsequently amended by Minute NQ MLGH/102/25/57 of 2001 which removed the reservation of official residences for senior officers except for one house as the official residence for the Town Clerk or Council Secretary. It was directed that all houses should be offered for sale in accordance with the provisions of Circular NQ 2 of 1996. 5.6 The Respondent referred this Court to the case of LIVINGSTONE CITY COUNCIL v GEOFFREY SINYWIBULUBA in which the Supreme Court acknowledged that Circular NQ 2 of 1996 as amended by Minute NQ MLGH/102/25/57 directed categorically that institutional houses had to be sold to sitting tenants. He submitted that as guided by the Supreme Court, he was entitled to be sold house no. 2 Mulungushi Dam, Kabwe as the sitting tenant. The Respondent further submitted that the learned trial judge was on firm ground when he held that he was entitled to be sold the subject house. J20 5.7 The Respondent argued that the issue of whether one was a senior officer or not, is immaterial in light of Minute NQ MLGH/102/25/57 which directed that all Council houses except for those reserved for the Town Clerk/Council Secretary should be sold. 5.8 This Court was urged to dismiss ground one with costs. 5.9 The Respondent argued grounds four, six and eight together. It was submitted that the issue for determination under these grounds of appeal is whether the claim that house no. 2 Mulungushi Dam was an operational house, exempts it from being offered and sold to the Respondent. 5.10 It was argued that as clearly shown under ground one, Circular NQ 2 of 1996 as amended by Minute NQ MLGH/102/25/57 of 2001 provided that only houses for the Town Clerk/Council Secretary were exempted from being sold and that house no. 2 Mulungushi Dam is not such a house and that as such, the Respondent was entitled to be offered the house for sale as guided by the Supreme Court in the LIVINGSTONE CITY COUNCIL case. 5.11 It was further submitted that grounds four, six and eight totally lack merit and that they must be dismissed with costs. J21 5.12 Grounds five and nine were also argued together. It was submitted that the gist of these grounds of appeal is that the Appellants claim that the subject house belonged to the 2nd Appellant and that as such, the 1st Appellant's Town Clerk had no authority to offer it to the Respondent. It was the Respondent's contention that both grounds of appeal totally lack merit. 5.13 It was firstly argued that there is no evidence that the said house was ever transferred to the 2nd Respondent as the letter relied on by the Appellants generally refers to a comprehensive valuation of assets conducted in November, 2013 and there was no asset register for the 2nd Appellant to show what properties were taken over by the 2nd Appellant. It was therefore submitted that the trial court was on firm ground when it found as a fact that no asset register was tendered in evidence to show that the house in question was transferred to the 2nd Appellant. 5.14 It was secondly submitted that even if the Appellants had produced the said register, that would not change the fact that by 2007 when the 2nd Appellant was incorporated, the Respondent had already accrued the right of first offer to purchase the subject house • ' ' J22 pursuant to Circular NQ 2 of 1996 as amended by Minute NQ MLGH/102/25/57 of 2001 and as guided by the Supreme Court decision in the LIVINGSTONE CITY COUNCIL case. 5.15 It was contended by the Respondent that his right of first offer to purchase house no. 2 Mulungushi Dam which accrued in 2001 was first in time and therefore supercedes purported latter claims of ownership by the 2nd Appellant. 5.16 The Respondent, therefore, urged this Court to dismiss grounds five and nine with costs. 5.17 Grounds two and three were also argued together and the Respondent submitted at the outset that they totally lack merit. 5.18 It was firstly submitted that the provisional offer to purchase the subject house issued to the Respondent by the 1st Appellant on 5th May, 2015 clearly indicated that the full Council resolved to offer the Respondent the subject house for purchase and that the same was under cover of Minute C159/08/14. 5 .19 The Respondent noted that the decision was made by the 1st Appellant and submitted that it was very strange that the 1st Appellant was seeking to disown its own binding decision. 5.20 It was secondly submitted that the provisional letter of 5th May, 2015 J23 does not offend section 67(2) of the Local Government Act Chapter 281 of the Laws of Zambia or Clause (b) of Circular NQ 2 of 1996 in that no sale has taken place between the 1st Appellant and the Respondent. It was further submitted that the provisional offer clearly indicated that the sale would only take place after offer valuation was conducted as required by section 67(1) of the Act. 5.21 It was thirdly submitted that the purported withdrawal of the provisional offer letter is not premised on any compliance issues with section 67(2) of the Act but on the Appellants' argument that the subject house was required for operational purposes and that the house currently belongs to the 2nd Appellant. 5.22 The Respondent contended that the question of the purported withdrawal of the provisional offer is not tenable as the 1st Appellant's Town Clerk lacks the power to unilaterally override or cancel the decision of the full Council meeting. To fortify this argument, this Court was referred to the testimony of Sydney Mwale the Appellant's witness at page 66 of the record of appeal and particularly lines 20 to 27 where he stated that: J24 is the highest decision "The full Council meeting making {organ) of the Council. A full Council meeting can only be overturned by another resolution of a full Council meeting ............... The Town Clerk has no power to overturn the resolution of the full Council meeting." 5.23 In light of the foregoing, the Respondent submitted that the trial court was on firm ground and cannot be faulted for holding that the purported invalidation of the provisional letter of offer was null and void. 5.24 It was further submitted that grounds two and three therefore lack merit and this Court was urged to dismiss them with costs. 5.25 Ground seven was argued alone and it was submitted that it lacks merit as it is immaterial whether the Respondent initially remained in the house while waiting for his terminal benefits. It was further submitted that the issue is whether or not Circular NQ 2 of 1996 as amended by Minute NQ MLGH/102/25/57 entitled the Respondent to be offered the subject house and that the answer is in the affirmative. ,. ' J25 5.26 It was finally submitted that the Court below cannot be faulted for basing its decision on the real issues in contention between the parties. 5.27 This Court was urged to dismiss ground seven with costs. 6.0 THIS COURT'S CONSIDERATION OF THE APPEAL AND DECISION 6.1 We have considered the grounds of appeal, respective arguments by the parties, authorities cited, evidence on record and judgment appealed against. 6.2 Upon perusal of the grounds of appeal, we noted that most of the nine grounds filed on behalf of the Appellants are interrelated or essentially state the same things. A typical example of this are grounds four, six and eight which state that house no. 2 Mulungushi Dam was not sold to the Respondent because it was one of the three houses that were reserved for operation purposes by virtue of its location within the Mulungushi Dam area. 6.3 We further noted from ground three, evidence on record and arguments by the parties that a provisional offer letter was issued by the 1st Appellant's Town Clerk to the Respondent. It is contended in J26 ground two that it was issued without the prior written authorisation of the Minister of Local Government. It was submitted by Counsel for the Appellants that part (b) of Circular NQ 2 of 1996 clearly states that the Council shall seek approval of the Minister of Local Government prior to the actual sale of Council houses. The argument is fortified by section 67(2) of the Local Government Act which also provides that a Council shall not sell, let for a period of fourteen or more dispose of any land or building without the Minister's approval. 6.4 Having noted the restrictions placed on the sale of Council houses, we further observed that the Respondent's offer letter was provisional and therefore, subject to confirmation. 6.5 Most importantly, however, we noted from ground five and the arguments by Counsel that house no. 2, Mulungushi Dam, Kabwe that was the subject of the provisional offer of sale to the Respondent by the 1st Appellant had become the property of the 2nd Appellant through the transfer of assets from local authorities in Central Province to the 2nd Appellant. J27 6.6 In our considered view, the said transfer of ownership of the subject house changed the position in terms of the Respondent's claim to entitlement to purchase the house. Apart from the fact that the Respondent only had a provisional offer letter, the problem was compounded by the issue of the house being owned by a separate and distinct legal entity. 6. 7 We opine that the 1st Appellant are no longer in a position to confirm the provisional offer and to complete the sale transaction of the said house. In the circumstances, therefore, the 1st Appellant cannot sell that which they do not possess and the Respondent cannot seek specific performance. 6.8 We are of the view that the whole process has been frustrated by reason of the 1st Appellant's Town Clerk having issued the provisional offer letter in error as the 1st Appellant had no capacity to transact in relation to the transferred property. 6.9 We observed from the evidence on record that the Permanent Secretary's letter directing the transfer of assets from the local authorities to the 2nd Appellant, was dated 8th October, 2014 whilst the Respondent's provisional offer letter was dated 5th May, 2015. J28 6.10 It is evident that the offer of house no. 2, Mulungushi Dam had already been superceded by the transfer of assets and that it ought to have been withdrawn instead of the Appellant advancing excuses that it could not be sold to the Respondent since it was required for operational use within the Mulungushi Dam area. 6.11 Having made those observations, we find ground five to be the only relevant ground and the rest of the grounds are, therefore, otiose. Having regard to the evidence on record and arguments by Counsel, we find that ground five has merit as the provisional offer was issued in error and that this case is on all fours with the case of LUSAKA CITY COUNCIL & ANOR v GRACE MWAMBA & ORS which was earlier cited by Counsel for the Appellants. 6.12 We noted that the Respondent had argued that since the provisional offer letter was not withdrawn he was entitled to purchase the house. Based on the decision in the cited case of LUSAKA CITY COUNCIL v GRACE MWAMBA & ORS, we find that the 1st Appellant is entitled to withdraw the provisional offer as the same was issued in error. J29 6.13 The Appellants, therefore, succeed in their appeal and we, accordingly, reverse the finding and orders by the Court below. 6.14 Costs to follow the event and in default of agreement to be taxed. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE