Kalombwe v Sadi (Appeal 206 of 2014) [2014] ZMSC 259 (1 September 2014)

, A* IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 206/2014 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MAUREEN KALOMWE ATTORNEY GENERAL AND 1st APPELLANT 2nd APPELLANT BIHOLE KABASO SADI (Suing as Administrator of the estate of Emmanuel Chilufya - Deceased) RESPONDENT Coram: Mwanamwambwa DCJ, Wood, Musonda, JJS. On 11th July, 2017 and 1st September, 2017 For the 1st Appellant: No appearance For the Respondent: Mr. E. M. Mukuka - Messrs E. M. Mukuka and Company JUDGMENT Wood, JS, delivered the Judgment of the Court. Case referred to: (1) Roland Leon Norton v Nicholas Lostrom (2010) Z. R. 358 Legislation referred to: (1) Limitation Act 1939, Section 2 J2 (2) The Common Leasehold Schemes Act Cap 208 of the Laws of Zambia, Section 3 (3) The High Court Act Cap 27, Order 5, Rule 14 This is an appeal against a decision of the High Court which granted ownership and possession of flat No. 5 Mulungushi Flats Kabwe to the respondent, as administrator of the estate of the late Emmanuel Chilufya. The genesis of this appeal lies in what is popularly known as the Civil Service Home Ownership Scheme, which was meant to empower civil servants with housing from what was Government housing stock and land. A handbook was published by Cabinet Office in September, 1996, to provide guidelines on who was and who was not eligible to purchase a Government house or flat. It is not surprising that the handbook has spawned a myriad of litigation over its interpretation which has kept the courts occupied for the past twenty years or so. The facts giving rise to this appeal also appear to follow what has now become the familiar haphazard fashion of the implementation of an otherwise noble scheme. J3 The 1st appellant is a teacher at Kabwe High School. At a school housing committee meeting held on 4th May, 1999, she was allocated flat No. 5 Mulungushi Flats, Kabwe which at the material time was occupied by a Ghanaian expatriate teacher by the name of Mr. Baku, who was expected to vacate so that the appellant could occupy it. By letter dated 14th December, 1999, the Ministry of Education, through the Acting Deputy Headmaster, informed the 1st appellant that flat No. 5 had been allocated to her. On 16th December, 1999, the 1st appellant took occupation of the Flat in question and on 14th December, 2000 she applied to purchase it under the scheme earlier mentioned. The same flat was then offered to a Mr. Shalisiya, who was not a sitting tenant and also to the respondent who was equally not a sitting tenant. This anomaly was brought to the attention of the Permanent Secretary, in a letter dated 31st January, 2002 by the Acting Assistant Secretary of the Central Province and a recommendation was made in the same letter to withdraw the offer that had had been made to the respondent, on the ground that he did not qualify to purchase as he was not a sitting tenant. In a report to the Permanent Secretary of the Central Province J4 contained in a letter dated 22nd February, 2002, the Acting Deputy Provincial Officer explained that the flat had been previously occupied by Mr. Baku and then later allocated to the 1st appellant. The report further pointed out that the respondent’s widow had been occupying an institutional house, which she had proposed to buy and had never lived in flat No. 5. The report recommended that flat No. 5 should have been offered to the 1st appellant to purchase as she was the sitting tenant at the material time. On 6th April, 2004, the Ministry of Works and Supply deemed the 1st appellant to have been allocated Flat No. 5 with effect from 14th December, 1999. In a letter dated 14th February, 2005, addressed to the Commissioner of Lands, the Ministry of Works withdrew its offer of flat No. 5 to Siame Daisy Godwin, on the ground that the rightful sitting tenant was the 1st appellant. While this correspondence was being exchanged between the various parties, parallel events were taking place in relation to the same property with regard to the deceased. On 16th November, 1998, which was a date prior to the flat being occupied by the 1st respondent, the Kabwe Urban Pool Housing Committee allocated the flat to the deceased. Paragraph 5 of the J5 affidavit in support of the originating summons which is itself defective, as it was not properly sworn before a Commissioner for Oaths, erroneously refers to this allocation as an offer to purchase the flat. It is pertinent also to note that the deceased and his family did not occupy the flat but continued to occupy an institutional house even after being allocated the flat. There was however a letter from the Ministry of Lands dated 2nd August, 2001 addressed to the deceased offering him to purchase the flat for K3,672,000.00 in addition to settling other fees amounting to K99,172.00. The deceased duly paid the purchase price and the requisite fees and even started paying ground rent. The Ministry of Lands then offered the same flat to the 1st appellant on 14th February 2005 for K4,028,000.00 plus KI08,527.00 as fees which she paid and also started paying ground rent. On 1st August, 2008 title deeds relating to Stand 653 'Kabwe’ of which flat No. 5 is a part were issued to a trust called Mulungushi Flats Association Registered Trustees. Faced with this evidence, the learned judge glossed over the complaint in paragraph 7 of the affidavit in opposition to the J6 effect that the founding affidavit was unsworn and as such was irregular and a nullity from commencement. This was a misdirection on his part as he should have acknowledged the validity of the deposition made pointing to the irregularity of the founding affidavit. It was, needless to say, open to the maker of the defective affidavit, if so minded, to take advantage of the provisions of Order 5 rule 14 of the High Court Rules Cap 27 of the Laws of Zambia which provides for the amendment and re-swearing of affidavits. The learned judge heard evidence from the parties which was mainly a repetition of what we have summarized above. After analyzing the evidence the learned judge found that the deceased was allocated flat No. 5 Mulungushi Flats by Kabwe Urban Pool Housing Committee which sat on 16th November, 1998. He held that Kabwe Urban Pool Housing Committee was the competent authority to allocate the house to the deceased unlike the School Housing Committee which did not have jurisdiction to do so when it allocated the flat to the 1st appellant. The learned judge formed the view that the deceased and his family could not occupy Flat J7 No. 5 immediately due to the fact that at the time it was allocated to him it was still being occupied by Mr. Baku who only vacated the flat in 1999. The learned judge held that although different numbers were being used to describe the property, the parties were referring to Flat No. 5 which was the one and only property they were both claiming. This was so because it could easily be identified and had also been occupied by a Ghanaian expatriate teacher identified as Mr. Baku. Above all, he held that the allocation was made to the deceased six months earlier than the 1st appellant. This made the deceased’s allocation of the flat superior to the 1st appellant. He therefore rejected the submission that the deceased had been allocated and subsequently, his estate, had paid for a non-existent property. He held that the property number was wrongly stated in the letter of offer to the deceased as ‘635’ and not ‘653’ as it appeared in the certificate of title issued to the Mulungushi Flats Association Registered Trustees. He therefore declared that the 1st respondent’s J8 purported allocation was null and void for want of authority by a body that issued it. Having reached this conclusion, the learned judge then tackled the issue of whether or not the allocation to the deceased was affected by the fact that he did not occupy the flat. He held that that could have been the case if it had been shown that the flat was in fact vacant and it had remained so until his demise. The flat however only became vacant shortly after the deceased passed away on 28th August, 1999. Since Mr. Baku was still in occupation as at 4th May, 1999 and the deceased died on 28th August, 1999, the learned judge held that the deceased or his family could not be faulted for not taking up occupation of the flat as the circumstances suggested that it was not practically possible to do so. The learned judge further held that the 1st appellant did all she could to have the flat offered to her at the expense of the deceased’s estate. She did that by first taking occupation of the flat soon after Mr. Baku vacated it thereby giving her the advantage of being a sitting tenant. The learned judge then considered Clause 2.1 of the Handbook on The Civil J9 Service Home Ownership Scheme which deals with eligibility. The relevant part states as follows: “2.1. Eligibility In the process of identifying civil servants who are bona fide sitting tenants, the following criteria shall be used:- (a) A confirmed civil servant who is in service and is a legal sitting tenant.;” The learned judge held that this clause means that for one to be a bona fide sitting tenant of a Government pool house one ought to have a valid allocation slip. He took a valid allocation slip to be one issued by the Provincial Pool Housing Committee. Since the 1st appellant did not have a valid allocation slip, her occupation of Flat No. 5 Mulungushi did not therefore, confer on her the status of a bona fide sitting tenant. The learned judge held that both the eligibility and ineligibility criteria in the handbook do not exclude an offer of a pool house to a civil servant who is not a sitting tenant to a house or flat which is vacant or occupied by a non-eligible person. He found in this case that neither the deceased nor the 1st appellant was a sitting tenant although the 1st appellant took up occupation of the flat J10 without authority, it was within the powers of the Government to offer flat No. 5 Mulungushi to any qualifying civil servant. He did not consider the absence of a letter to the deceased to have been fatal to the respondent’s case because he had a letter of offer from the Ministry of Lands in response to an application to purchase a Government pool house. In any event, the deceased was the earlier in time as he had completed his application form for the flat on 2nd August, 2001, while the 1st appellant had only done so on 5th September, 2001. Further, by the time frantic efforts were being made to have the offer to the deceased cancelled in 2004 and 2005, his estate had already paid the full purchase price. The learned judge found that the flat was rightly offered and sold to the deceased. He proceeded to order the cancellation of any Certificate of Title issued in respect of flat No. 5. He, however, dismissed the respondent’s claim for mesne profits on the ground that there was no tenancy agreement. The appellants were not satisfied with the judgment of the court. They have now appealed to this court raising five grounds of appeal. Jll The first ground of appeal is that the learned judge erred in law and in fact when he ignored the fact that the respondent’s claim in the court below dated back to 1998 and was therefore statute barred, a fact which was argued in the 1st appellant’s submissions. We agree with the 1st appellant that when the respondent commenced these proceedings in 2013 they were technically statute barred because the deceased had been allocated Flat No.5 on 16th November, 1998 and had practically done nothing about it up until 2013 when the administratrix of his estate commenced proceedings which culminated into this appeal. While the defence of the matter being time barred under section 2 of the Limitation Act 1939 on the ground that it was commenced after six years form 16th November, 1998, was available to the appellants, they did not raise it either in their affidavit in opposition or in cross­ examination. They are therefore taken to have waived it and cannot raise it on appeal as this would amount to ambushing the respondent. We have held in the case of Roland Leon Norton v Nicholas Lostrom1 and numerous other decisions which are not J12 necessary to cite here that matters not raised in the court below cannot be raised on appeal. The first ground of appeal has no merit. The second ground of appeal is that the learned judge erred in law and in fact when he concluded that Plot 653 as offered to the 1st appellant was the same plot offered to the respondent whose offer letter reflected Plot 635 in view of the testimony in the court below. The argument by the 1st appellant in relation to this ground is historical in nature. The 1st appellant argued that she moved into the flat in 1999 as instructed by the Ministry of Education. This was done after the departure of Mr. Baku. The deceased on the other hand was occupying No. 1 Libonda in Kabwe which is an institutional house, up to the time of his demise on 28th August, 1999. The 1st appellant argued that the allocation slip which was given to the deceased became invalid upon his demise because he did not occupy the flat. The 1st appellant went on to argue that the sale of Government pool houses was governed by the Civil Service Home Ownership Scheme Handbook. She was a J13 civil servant who was a sitting tenant at the time the home ownership scheme was in effect. According to the guidelines set out in the handbook, pool houses were meant to be purchased by Zambian civil servants who were sitting tenants. Those who occupied institutional houses were specifically catered for under the Civil Service House Loan Scheme. The 1st appellant argued that in the premises, the letter issued to the respondent was illegal and ought to be cancelled. The 1st appellant argued that DW2 had testified that Plot No. 653 which had been offered to the 1st appellant was not the same as Plot No. 635 which had been offered to the respondent. This was so because properties were not sold by flat or house number but by plot number. In the circumstances, the 1st appellant argued that there was no evidence that the offer letters in this case referred to one and the same property. That explained how and why both the 1st appellant and the respondent were able to pay fees and ground rent concurrently and without difficulty. The 1st appellant therefore argued that it was only fair that she should be declared the legal owner of the flat as she had purchased it and was occupying it. In addition, the 1st appellant argued (without J14 pleading it in the court below), that the respondent had obtained the offer letter by fraud. The fraud, according to the 1st appellant, came about because the handbook presupposes proof of occupation of a property by an applicant. In conclusion, the 1st appellant argued that the respondent’s claims to Plot 653 Kabwe were not supported by the law as it was clear from the evidence on record that the respondent did not qualify to purchase the property. The 1st appellant combined grounds two three four and five and argued them simultaneously. We deprecate this approach to arguing appeals as it only serves to cloud issues. Grounds of appeal should, for the sake of clarity, be argued under individual heads unless of course the issues being raised are inextricably linked and there would thus be no need to repeat an argument. Even assuming that that were the case, it is important to formulate heads of argument so as to capture the main argument which will address subsidiary arguments as well. J15 A lot of time was spent in the court below on whether or not the offers made to the 1st appellant and the deceased related to the same property because the 1st appellant’s offer was described as flat No. 5 Mulungushi Flats or property number KABW/653/CL/1/2 while the deceased’s offer was described as House No. 5 KABWE/635/CL/ 1/2. The main argument was over the numbers ‘635’ and ‘653’ which are transposed. A closer reading of all the documents reveals that the offers related to flat No. 5 which is part of Stand 653 Kabwe. It is quite clear that both offers related to Flat No. 5 Mulungushi Flats Kabwe and the wrong description in respect of the offer to the deceased on its own could not have been considered as being fatal because the property is also referred to flat No. 5 Kabwe even in correspondence from the Ministry of Lands. There is therefore absolutely no merit in the argument in the second ground of appeal that Plot ‘653’ and ‘635’ Kabwe were not one and the same. We agree with the learned trial judge that Plot ‘653’ and Plot ‘635’ both related to Flat No. 5 Mulungushi Flats Kabwe. We reject the argument by the 1st appellant that the fact that the Ministry of Lands accepted fees and ground rent for Plot 653 and J16 635 was enough evidence that there were one and the same because both documents from the Ministry of Lands made reference to flat No. 5, Mulungushi Flats Kabwe and no evidence was produced by any of the parties by way of a print out or an official search form from the Lands and Deeds Registry to show that there were two separate and distinct properties. The certificate of title confirms that it relates to a number of flats on Plot No. 653 Kabwe which explains why the title is in the name of Mulungushi Flats Association Registered Trustees and not in the name of the 1st respondent. Ideally sectional title should have been granted to the owners under section 3 of the Common Leasehold Schemes Act Cap 208, but the property owners seem to have opted for a trust to own the land. We therefore take the view that this was a typographical error because the physical position is that flat No. 5 Mulungushi Flats Kabwe is on stand No. 653 while Flat No. 5 on Stand No. 635 Kabwe does not exist in the records of the Ministry of Lands and as such could not have been possibly offered to the deceased as claimed by the 1st appellant. We find no merit in the second ground of appeal. J17 The third ground of appeal is that the learned trial judge erred in law and in fact when he concluded that the deceased was eligible and entitled to purchase the property in question when the handbook on the Civil Service Home Ownership Scheme clearly made him ineligible in view of the 1st appellant’s occupation of the property in dispute, her eligibility for the purchase of the property in dispute and her fulfillment of all legal formalities for the purchase of flat No. 5 Mulungushi located on stand No. 653 in Kabwe. The argument in support of this ground of appeal has been dealt with in the overarching argument in respect of the second ground of appeal. It is therefore not necessary to repeat it under this head. It is however necessary to refer to the handbook on the sale of Government Pool Houses. The preface to the handbook stipulates that the first directive was that priority in the sale of government pool houses should be given to retrenchees and retirees who are sitting tenants and have not been paid their terminal/severance packages. The evidence shows that the deceased was allocated Flat No. 5 Mulungushi J18 Flats, Kabwe while he was in occupation of an institutional house. The evidence further shows that he did not occupy the flat nor did he vacate the institutional house. He passed on while in occupation of the institutional house and it was only later that his widow applied to be offered the institutional house which application was unsuccessful. Although the application for the institutional house was unsuccessful, the deceased had on 2nd August, 2001 been offered Flat No. 5 by the Ministry of Lands. The learned trial judge when interpreting clause 2.1 which deals with eligibility concluded that in order for one to be a bona fide sitting tenant of a government pool house, one ought to have a valid allocation slip issued by the provincial pool housing committee. The judge went on to hold that the allocation to the 1st appellant was null and void for being issued by a body that did have jurisdiction and as such her occupation of flat No. 5 Mulungushi did not confer on her the status of a bona fide sitting tenant. We agree with the interpretation given by the learned trial judge. A bona fide sitting tenant traces the root of eligibility to the manner in which he found himself in occupation of a J19 particular property. In this case, the record shows that the deceased had been allocated the property earlier than the first appellant. In addition, the deceased had been offered the property earlier by the Ministry of Lands and had paid for it. The fact that he did not immediately occupy the flat upon the departure of Mr. Baku does not in any way whittle away his entitlement to the property. Although a sitting tenant has priority under the Civil Service Home Ownership Scheme, this is not the only consideration. A bona fide sitting tenant presupposes that the tenant had taken occupation under circumstances which were regular and legitimate. The evidence on record as found by the learned trial judge, which we agree with, suggests extreme manouvres by those who allocated the property to the first appellant to make it seem that she was technically a sitting tenant and as such, had an overriding interest in the flat and was, therefore, rightfully offered the flat. The evidence however shows that the deceased had been allocated the flat as far back as 16th November, 1998 by the Kabwe Urban Pool Housing Committee and was offered the same J20 flat by the Ministry of Lands on 2nd August, 2001. Quite clearly he was the earlier in time. The third ground of appeal has no merit and it is dismissed. We do not see any need to deal with the fourth ground of appeal as it is a repetition of the argument relating to the deceased not occupying the flat or the fifth ground of appeal as it is a repetition of an analysis of the evidence by the learned trial which we have dealt with earlier. We, however, note from the evidence on record that the 1st appellant had also paid for flat No. 5. We order that all the money that was paid be refunded to her and that she vacates the flat within thirty days from the date of this judgment. We also note that the property forms part of a trust. The respondent will have to decide whether or not she wants to be part of the trust. If she does not desire to be part of the trust, she will have to apply for sectional title to the property. We further order that all records at the Lands and Deeds Registry be rectified to reflect the true ownership of flat No. 5 Mulungushi Flats Kabwe which is part of Stand 653 Kabwe. The net result is that we confirm the J21 judgment of the lower court and dismiss this appeal, with costs to the respondent, to be agreed or taxed in default of agreement. For the avoidance of doubt, the costs are to be borne solely by the 1st appellant as the 2nd appellant did not file any notice of appeal. DEPUTY CHIEF JUSTICE A. M. WOOD SUPREME COURT JUDGE •4^........ .. M. MUSONDA, SC SUPREME COURT JUDGE