Livingstone City Council v Sinywibulula (Appeal 35 of 2008) [2011] ZMSC 36 (14 January 2011)

y... / + oe eS IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) ¢ APPEAL NO.35/2008 SCZ/8/287/2007 Ba BETWEEN: LIVINGSTONE CITY COUNCIL APPELLANT AND GEOFFREY SINYWIBULULA RESPONDENT Coram: Chirwa, Chibesakunda, and Chibomba JUS. On 22"4 September, 2009 and 14th January, 2011. For the Appellant: For the Respondent: Mr D. O. Sakala of Messrs Oliver Sakala and Company. Ms I. Suba of Messrs Kuta Chambers. Chibesakunda, JS Delivered the Judgment of Court. JUDGMENT Cases referred to: 1. ZCCM LTD VS. RICHARD KANGWA AND OTHERS SCZ JUDGMENT NO. 25 OF 2000. Legislation referred to: 2. SECTION 24 (i e) OF THE SUPREME COURT ACT CAP 25. This is an appeal against a High Court Judgment in a claim by the Respondent that the Court determine: (1) Whether the Defendant is in order to disobey Circular Number 2 of 1996 on Sale of Houses as amended by Circular Number MLGH/ 102/25/57; J2 (2) And to make a declaration that the Plaintiff is entitled to purchase House Number 37, Kabompo Road as per Council Circular Number MLGH/102/25/57 effect from Sth November 2001 and (3) An Order that the Plaintiff is entitled to rent for a period beginning 5 November, 2001 till the Final determination of the matter and must be paid in arrears; (4) Interests on all monies to be due; and (5) Costs. The High Court found in favour of the Respondent, hence this appeal before this Court. The Appellant’s case at the High Court is, that he was an employee of the Appellant. In the course of his employment he was allocated an institution house No. 37 Kabompo Road Livingstone to occupy on 18‘ April, 1999. He produced a document shown at page of the record which is a letter to that effect. The Government of Zambia had introduced a programme of empowering Zambia Public workers and Council sitting tenants. The programme was to sell houses to Council sitting tenants and to sell houses to public workers occupying the houses allocated to them as part of J3 their condition of service. The only exceptions were institutional houses as per Circular No. of 1996. Now, the Permanent De - Secretary, in the Ministry of Local Government and Housing, in a letter dated 5tt November, 2001 amended Circular No. 2 of 1996,. stating that even those houses which had been considered in previous circulars as institution houses had to be sold to sitting tenants save the houses occupied by the Town Clerks and the Council Secretaries. Relying on that circular, the Respondent approached the Appellant to ask them to sell him the house he was a sitting tenant in. That is House No. 37 Kabompo Road, Livingstone. His case is that he was legally entitled to be sold this house No. 37 Kabompo Road, Livingstone, failure to do so was going to be contrary to GRZ directive. The Appellants’ position at the High Court as stated in their argument and in their affidavit evidence, is that house No. Kabombo Road, Livingstone like house No. 38 Kabompo Road was an institution house covered by Circular No. 2 of 1996 even if this Circular No. of was amended in a letter No. MLGH/102/25/57, written by the Permanent Secretary, Ministry of Local Government and Housing. So when the Respondent on the oh of September, 2002 requested the Appellant Council to offer him for sale the house in question. It refused to do so as that house in, question was attached to the Fire Brigade premises and as ach this house was meant to accommodate a Senior Fire Brigade Officer Circular No. of 1996 and MLGH/102/25/57 had to be read together. Therefore, it refused to sell this house to the Respondent. This is why the Respondent then decided to come to Court taking & out originating summons for the Court to decide. The High Court ruled in favour of the Respondent hence this appeal before this Court. The Appellants are now challenging this holding by the learned trial Judge, raising the following grounds:- (1) That the learned trial Judge erred in law and in fact when it failed to analyze all the provisions of the relevant circulars, relating to the Sale of Council Houses and failed to appreciate the objective of the sale of council’s residential houses and by holding that the house the subject matter of this litigation was in fact for sale. (sic) (2) That the Learned trial Judge erred in law and fact by holding that the Respondent herein was entitled to purchase the house in issue. J5 (3) That the learned trial Judge erred in law and fact when it failed to take into account the evidence contained in the various Affidavits filed by both Parties and analyze it and by acceptiitg the evidence of the Respondent and his witness only and dismissing that of the Appellant and its witnesses without giving any grounds at all or sufficient grounds. (sic) (4) That the learned trial Judge erred in law and in fact by holding © that the Respondent is entitled to accrued rentals from 2001 to judgment with interest when the Plaintiff has not yet been yet offered and or purchased the house in issue. (5) Any further grounds that the Appellant may hereinafter file. At the hearing of the appeal, Mr Sakala, Counsel for the Respondent raised a preliminary point before substantive issues were canvassed. According to Mr Sakala, the appeal before this Court was misconceived as the appeal was filed without leave in compliance with Section 24(1 e) of the Supreme Court Act Cap 25, which says:- (1) “No appeal shall lie a (e) From an order made in chambers by a Judge of the High Court or from an interlocutory order or interlocutory judgment made or given by a Judge of the High Court, without the leave of the Judge or, if that has been refused, J6 without the leave of the Judge of the Court, except in the following cases: (i) Where the liberty of the subject or the custody 8f infants is concerned. (ii) Where an injunction or the appointment of a receiver is granted or refused. (iii) In the case of a decision determining the claim of any creditor or the liability of any contribution or the liability of any director or other officer under the Companies Act; (iv) In the case of a decree nisi in a matrimonial cause or a judgment or order in any Admiralty action determining liability; (v) In the case of an order on a special case stated under ant law relating to arbitration; (f) From any order absolute for the dissolution or nullity of marriage made by a Judge in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was not appealed from that decree.” We hold the view that Mr Sakala has not paid attention to the Provisions of Section 23 of Cap 252 which says: “Subject to the exceptions and restrictions contained in section twenty-four, an appeal in any civil cause or matter shall lie to the Court from any judgment of the J7 High Court’(our own emphasis). Mr Sakala in our view misunderstood _ completely these provisions on the need to obtain leave. According A to these provisions in Section 237, every litigant in Zambia, aggrieved by any High Court Judgment, delivered in open Court, has the right to appeal to this Court subject only to the restrictions stated in Section 242 which are not applicable in this case. As this High Court was delivered in open Court, the Appellants have a right to appeal to this Court without obtaining any leave. Coming to the substantive arguments, Ms Suba’s main contention is that the learned trial Judge failed to analyze adequately the evidence before him and to appreciate the fact that the policy as pronounced by the Government of Zambia in relevant circulars and Print and Electronic media relating to the policy of empowering Zambians, began in 1997. City Council houses were to be sold to all sitting tenants and employees. But institutional houses were not included on the list of housing units to be sold. Ms Suba argued that, in the case before us, this policy excluded institutional houses even after the amendment by the letter from the Permanent Secretary, Ministry of Local Government and Housing dated 5 November, 2001. She argued that GRZ set up J8 guidelines and these guidelines gave conditions on the eligibility of the would be buyers and on how these houses were to be sold> € at According to her, Circular No. of 1996 had to be read sicith Circular No. MLGH/102/25/57. She therefore argued that, the. house which the Respondent applied to buy was an institution house, which as it was attached to the Fire Brigade was meant to accommodate the Appellant’s Senior Fire Officer. As such it was not €é for sale. She pointed to the letter in which the Respondent was allocated to the house in question, which categorically said the house was not for sale at page 21 of the record. She argued that, in fact, this same house had been offered to Mr Shindele and that he had failed to buy it because it was an institution house. In addition, she argued that there was no law which forces anybody to sell one’s property to somebody else. So in this case there was no & sale agreement as there was no offer. So there was no contract between the Appellants and the Respondent. She urged this Court to uphold the appeal. Mr Sakala Counsel for the Respondent in response argued that, their case was solely premised on the letter from the Permanent Secretary Local Government and Housing amending Circular No. 2 of 1996 This letter by the Permanent Secretary Local J9 Government and Housing says:- “MLGH/1 02/25/57 5th November, 2001 To: All Town Clerks City and Municipal Councils All Council Secretaries District Councils AMENDMENT _TO CIRCULAR NO. HOUSES. 2 1996 ON THE SALE OF COUNCIL As you are aware, it is Government policy to empower as many Zambian as possible with housing. Therefore, following numerous representations by various Councils regarding the eligibility of senior members of staff in reserved Council houses to purchase the houses in which they are sitting tenants, it has been decided to amend item No. (c) of Circular No. 2 of 19966 which provides the reservation of official residences for senior Council officers. Herewith, Councils shall only reserve and designate one house to the official residence for the Town Clerk or Council Secretary, as the same Councils are no longer required to reserve an official house for any other Council Officer. All reserved houses, except for the Town Clerk/Council Secretary’s house should be offered for sale in accordance with the provisions of Circular No. 2 of 1996. This amendment is with immediate effect. (Our own emphasis) D. C. Sadoki Permanent Secretary MINISTRY OF LOCAL GOVERNMENT AND HOUSING c.c. All Provincial Permanent Secretary c.c. All Provincial Local Government Officers” J10 He also relied on his submission at the High Court at page é 223-224. In those arguments, he argued that the Respondent, an Me employee of the Appellant and a sitting dented in the house in question was entitled to the first offer to buy the house in question. | We have considered all the issues raised in this appeal. Our view is that although we agree with the learned Counsel for the Appellant that there is no law which forces anybody to sell to anybody any property, in this particular case, the circulars from the Appellant in particular Circular No. 2 of 1996, which indicated that the institution houses were not for sale, laid down very clearly the guidelines of implementing the policy of empowering sitting tenants of Council houses as pronounced by GRZ t through the Head of State. It is common ground that this Circular No. 2 of 1996 was amended by letter No., MLGH/102/25/57, which we have quoted above. The amendment to this Circular No. 2 of 1996 made it clear that the policy of not selling institutional houses was being amended as per directive to all Councils coming from GRZ. In the Kangwa! case, by analogy, we stated that GRZ being a major stake holder in civic and parastatals, its pronouncement must dictate and set the directive on how to sell the listed housing stocks. In letter Jil No., MLGH/102/25/57, GRZ directed categorically that institution _ houses had to be sold to citing tenants. Therefore, although in the Ag - letter allocating house No. 37 Kabombo Road Livingstone to the Respondent there was an indication that the house in question was not for sale, this letter of 5 November, 2002 from the Permanent Secretary, Ministry of Local Government and Housing superseded this circular No. 2 of 1996, in that there was a change in policy and therefore house No. 37 Kabombo Road Livingstone was now available to be sold to the sitting tenant. According to the evidence before the High Court, the sitting tenant at No. 37 Kabombo Road, Livingstone at the time there was this change of GRZ policy was the Respondent. It follows therefore that the offer of sale to this house No. 37 Kabombo Road Livingstone had to be given to the Respondent. He was entitled to be given the first offer. The learned trial Judge therefore cannot be faulted in his Judgment when he held that the Respondent was legally entitled to purchase house No. 37 Kabombo Road, Livingstone. We agree with the Respondent that when GRZ evaluated this house in question it was at K17million. The appeal therefore on that portion of the judgment has no merit; we dismiss that portion of the appeal. J12 Coming to the other portion of the appeal, which is on the , award of rentals to the Respondent by the learned trial Judge we hold that there was a misdirection by the learned trial Judge as there was no evidence before Court to establish that the: Respondent had bought the house in question. He is therefore not entitled to be warded rentals of the property which he does not own. We therefore find merit on that portion of the lower Court’s Judgment. We quash this potion of the decision by the learned trial Judge. Further we award costs to the Respondent, to be agreed upon, in default to be taxed. D. K. Chirwa SUPREME COURT JUDGE Deemer meee eee dere eer renee ese reese reeeee L. P. Chibesakunda SUPREME COURT JUDGE Peer oerevereocsavecerosenereneseeeresE® H. Chibomba SUPREME COURT JUDGE