Lwando and other teachers v ZCCM Investment Holdings PLC & Others (Appeal 83 of 2009) [2015] ZMSC 65 (10 November 2015)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA 'Civil Jurisdict on) APPEAL NO. 83/200S SCZ/8/291/2008 BETWEEN SIMON LWANDO AND OTHER TEACHERS APPELLANTS AND 2CCM INVESTM EN" HOLDINGS PLC SIMASIKWE AND OTHERS RESPONDENTS 2 ^ RESPONDENTS Coram: Chibomba, Hamaundu and Kaoma, JJS On 3rd March, 2015 and on 10th November, 2015. For the Appellants: For the 1stRespondent: For the 2nd Respondent: Mr. C. Chizu of Chanda Chizu and Company. Present in Person. Mrs. J. Ndovi of Kaite Legal Practitioners. J U D G M E N T Chibomba, JS, delivered the Judgment of the Court. C ases referred t 3 : - 1. Z am b ia C o n s o lid ated C o p p e r M ines Lim ited vs. R ich ard K angw a and O thers S. C. Z. J u d g m e n t No. 25 of 2002 2. P hiraya Lai alias Piara Lai vs. Jia Rani A ir 1973 Del 186 3. Z am b ia C onsolidated C o p p er M ines Lim ited and N dola L im e C o m p an y vs, Em m an uel S ik a n y ik a & O thers Ju d g m e n t No. 24 o f 2000 4. Z a m b ia C o n so lid ate d C o p p er M ines Lim ited vs. C lem en t K an g o te A p p eal No 82 o f 1996 ‘ 5. B eatrice M u im u i vs S ylvia C hunda, A p p eal No. 50 o f 2000 6. B u ch m an vs. A tto rn e y G en eral S. C . Z. N u m b er 74 o f 1994 (u n rep o rted ) at page 7. M ususu K alen g a B uilding Lim ited and A n o th er vs. R ic h m a n ’s M onev Lenders E n terp rises (1999) Z. R . 27 8. B arclays B an k Z a m b ia Pic vs. Z am b ia Union of F in an cial In stitu tio n s and Allied W o rk e rs (2001) Z. R . 106 9. M u d en d a vs. T o o acco B oard of Z a m b ia A C Z A p p eal 49 of 1998 10. G en eral N ursing Co jn c il o f Z am b ia vs. M b an g w eta 2008 ZR 105 J2 11. R ichard Nsofu M ando na vs Z a m b ia N ational C om m ercial B ank Pic., Zam bia N ational Oil C o m pany L im ited , and A tto rn e y G eneral (2008) Z. R . 23. V ol. 2 ' 2. N atio na Housing A u th o rity vs. C h alitu m elo , A ppeal No. 19 of 2007 13. N. D adjee vs. T irupathi D evasth an am A ir 1965 S. C. 1231 14. Z am b ia C onsolidated C o p p e r M in es Lim ited and O. K. S im w in g a vs Dr. Francis K ham a A ppeal no. 71 of 2001 15. The A tto rn e y-G e n eral vs. M arcus K am pum ba A ch iu m e (1983) Z. R.1 15. N ational A irports C o rp o ratio n Lim ited vs. Regie Ephraim Z im b a and S aviour K o nie (2000) Z. L. R . 154 17. Ju d ith M porokoso vs. K erros M u m b i S C Z Ju d g m en t No. 19 o f 2014 18. Frank M alich upa & O thers vs. T an zan ia-Z am b ia R ailw ays A u th o rity (2 0 0 8 ) Z. R. 19. V a le n tin e W eb ster C hansa K ayo p e vs. A tto rn ey G en eral S . C . Z. A p p e a l No. 18 of 20. P eter M ilnis vs. W ilson K afuko C h iw a la S . C . Z J u d g m en t No. 3 o f 2009 21. J. K . R am bai Patel vs. M ukesh K u m ar Patel (1985) Z. L. R 220 O th e r m aterials refgrred t o : 1. The C onstitution , C h a p te r 1 o f th e Law s o f Z am b ia 2. R ent Act, Ch ap ter 206 o f th e Law s o f Zam bia\ 3. H igh C o u rt Act, C h ap ter 25 of th e Law s o f Zam bia 4. S tate P ro ceedings A ct, C h a p te r 71 o f the Laws o f Zam b ia 5. S u p rem e Co j r t Rules, C h ap ter 25 o f th e Laws of Zam bia 6. H a ls b u r /s Laws of E ngland, V o lu m e 27, 4th Edition. The Apoe'lants appeal against the Judgment of the High Court at Kitwe dated 20th November, 2008 which held, inter alia, that the Appellants were no: entitled :o buy the houses in question. The facts leading to this appeal are not in dispute and these are that the Appellants were all employees of the Ministry of Education. They occupied the 1st Respondent’s (Zambia Consolidated Copper Mines) (ZCCM) houses by virtue of their employment as teachers who were teaching in ZCCM school areas. The Ministry of Education had entered J3 into an agreement with ZCCM to allow the teachers to occupy these houses owned by ZCCM. Following the Government policy to sell Government and quasi- Governmental houses and following the process of privatising ZCCM, the houses which the Appellants occupied as teachers teaching in the ZCCM school areas were sold to ZCCM employees who were not sitting tenants as ZCCM did rot have sufficient funds to pay terminal benefits amounting to over K600 billion to its employees. So, ZCCM terminated the tenancy agreement with the Ministry of Education which in turn advised the Appellants of the sale of the houses by ZCCM to its employees. They were requested to either vacate the houses or to enter into tenancy agreements with the new owners, the 2nd Respondents, who had been issued with title deeds. The Appellants however, refused to vacate the houses or to enter into tenancy agreements with the 2"a Respondents, claiming that as sitting tenants, they were entitled to buy the houses in question. The Appellants who in number were 470, including the 1s,Appellant, Simon Lwando, took out a Writ of Summons against ZCCM and the 2"d Respondents, at the Kitwe Hign Cou-t, in which they claimed the following relief:- J4 “ (a) A declaration that the Plaintiffs are sitting tenants and are entitled to purchase the houses they occupy. (b) A declaration that the purported offers made to non-sitting tenants were wrongful and therefore, null and void. (c) An order that the offers made to non-sitting tenants be cancelled. (d) An order that the Defendant ZCCM offers houses to the Plaintiffs just like it offered to some teachers as sitting tenants. (e) Costs and incidental to this action.1’ The learned trial Judge heard evidence from the Appellants which he considered together with the submissions by the learned Counsel for the parties. He came to the conclusion that the Appellants were not entitled to purchase the hcuses in question on ground that being a sitting tenant was not the only criteria when purchasing Government or quasi-Governmental houses as there were other important criteria to be taken into account such as being an employee of the Government or quasi-Governmental organisation. And that in the current case, the Appellants were not at all tenants of the hcuses they occupied as it was the Ministry of Education which was the tenant and hence, the claim that they were entitled to purchase the houses has no basis. So the Judge dismissed their claim. In terms of the counterclaim by the Z ^esp o nd en ts, the learned Judge found in favour of the 2nd Respondents and entered Judgment in their favour ano ordered the Appellants to vacate the houses in question J5 forthwith. He also awarded mesne profits against the Appellants from the date the houses were sold to the 2nd Respondents up to the date the Appellants would yield vacant possession. He also awarded interest on the mesne profits at short term bank deposit rate from the date of the counterclaim :o the date of judgment and thereafter, at the current bank lending rate approved by the Bank of Zambia to the date of payment. He further ordered that the quantum of the mesne profits be assessed by the Depu:y Registrar. Costs were also awarded to the Respondents. Dissatisfied with this Judgment, the Appellants have appealed to the Supreme Court advancing six Grounds of Appeal in the Memorandum of Appeal. These are: - “ 1. 2. 3. 4. TTiat the Learned trial Judge misdirected himself in both law and fact in holding that the Appellants were not tenants in the Respective houses they occupied from the 1st Respondent. That the learned trial Judge erred in both law and fact in holding that the tenant of the various houses occtpied by the Appellants was the M m stry of Education when the said Ministry of Education was not a legal entity capable to rent or occupy the houses. The learned trial Judge erred in law in failing to recognize the significance of the relevant provisions of the Rent Act of the Laws of Zambta m in physical the Appellants who were possession of the various houses of the 1st Respondent relation to I h® trial Jud9 e misdirected himself in law when he ordered t h f l Apphellants forthwith vacate and deliver vacant possession of the various houses to the Respondents. J6 5. 6. The Order against the Appellants for payment of the costs of the action by the Appellants ro the Respondents was wrong and ouqht to be set aside. The finding by the trial Judge for payment by the Appellants to the Respondent of mesne profits with interest thereon was wronq and ought to be set aside.” The Appellants relied on their Heads of Argument that were filed on 31st Cetober, 2011. In support of Ground 1 and 2, which were argued together, the Appellants began by inviting us to take judicial notice of the Home Em powerm ent P o licy formu ated by Government where there is a sitting tenant in occupation. It was argued that it is the occupant who is supposed to benefit from the Home Empowerment Policy. In support of this argument, the Appellants cited the case of Zambia Consolidated Copper Mines Limited vs. Richard Kangwa’ in which it was held that the Home Empowerment Policy was the brainchild of the Government and a sitting tenant in terms of the Home Empowerment Policy is the occupant. And that it was the occupants who were entitled to benefit from the Home Empowerment Policy. That however, in the current case, the sitting tenants are the Appellants and not Ministry of Education, And that as such, it was the Appellants who were entitled to benefit from the Home Empowerment Policy as sitting tenants. And that the Respondents had never been sitting ‘ enants. That it follows therefore, that the sitting tenants are the Appellants, m support cf Grounds 3 and 4 which were also argued together, it J7 was submitted that the Court below should have noticed that there was no tenancy agreement signed between the Appellants and the Respondents. Therefore, a claim for mesne profit could not stand as between the parties. Further, that the Appellants lawfully occupied the houses and were therefore, not trespassers. In support cf the above argument, the Appellants relied on the case of Phiraya Lai alias Piara Lai vs. Jia Rani Air2. 1 was argued that the issue of mesne profit is thus not applicable in this matter. In supoort of Ground 5, it was argued that since the Government formulated the Home Empowerment Policy to benefit sitting tenants, the Appellants reasonably believed the pronouncement from the Head of State who is the representative of the people of Zambia and hence, the Appellants invite the Court to take judicial notice of the pronouncement passed by President Rupiah Banda which included all sitting tenants including the teachers who have since received the offers. It was argued that the pronouncement was a further clarification on who is/was entitled to purchase the houses under the Home Empowerment Policy. It was the Appellants’ further argument that they should not be condemned in costs in trying to pursue their rights under the Home Empowerment Policy as according to the Presidential Directives, all sitting J8 tenants were entitled to purchase the houses they occupied. The case of Zambia Consolidated Copper Mines Limited and Ndola Lime Company vs. Emmanuel Sikanyika & Others3 was cited. It was argued that in that case, the losing party was not ordered to pay costs as litigation was as a result of Notices of information which got to the Respondents prompting them to take up legal action. And that in the same vein, the Appellants brought this case as a result of Government pronouncement which were being circulated all over Zambia emphasizing that the sitting tenants were entitled to purchase the houses they occupied in the ongoing Home Empowerment Policy. That the Court should, accordingly, exercise its discretion with regard to costs in this matter. On the other hand, the learned Counsel for the 1st Respondent, Mr. Ndovi, relied on tie 1st Respondent's Heads of Argument. He began by stating that the Appellants only filed one Ground of Appeal in the Notice of Appeal but that in the Memorandum of Appeal, there are other Grounds of Appeal, counsel, however, in responding to Grounds 1 and 2 began by restating the evidence as foiiows:- “(i) Appellants were sitting tenants The tenancy agreement was between the 2nd Ministry of Education. w Respondent and the J9 (iii) The Appellants were not direct tenants of the 1st Respondent but the Ministry of Education. The tenancy agreement was between the M iiis try of Education and the 1st Respondent. The Ministry of Education applied for houses to accommodate Teachers and the houses were rented to the Ministry of Education and the same with other Government Ministries.” this arrangem ent was It was submitted that on the above evidence, the Court below cannot be fs-jlted for finding that the tenant of the houses in issue was the Government. And that even the 1 ^Appellant, Lwando, conceded that the tenancy agreement was between the Government and the 1st Respondent. It was argued that ground 2 is academic. That in common parlance, people employed by the Ministry are referred to as Government employees and that the Appel,ants themselves told the Court below that the tenancy agreement was oetween the 1st Respondent and the Ministry of Education. This s.mply meant that the tenancy agreement was between the 1st Respondent anc the Government of the Republic of Zambia. Hence, Grounds 1 and 2 should be dismissed. In response to Ground 3, it was submitted this ground cannot stand as the Rent Act was neither pleaded nor was this argued in the Court below. JIO In response to Ground 4, it was submitted that there was no Defence to the Counte- claim which prayed for an order for the Appellants to “vacate the houses in issue; an order that the Appe lants pay mesne profit; interest on (i ) above and Costs". It was submitted that it is trite law that costs are awarded to the successful party but that however, there are circumstances where, because of the concuct of the successful party, costs are awarded to the losing party. Such was the decision of this Ccurt in the case of Zambia Consolidated Copper Mines Limited and Ndola Lime Company vs. Emmanuel Sikanyika and Others3, where the Court had this to say: Since this quia timet was provoked by some unhelpful statement ... in circulars publicised by the employers and emanating from authorities st tre re will be no order for costs here and we do not disturb any orders in that regard which were made below.” It was submitted that this Court has also stated that in certain circumstances, such as where a losing party is defending a matter as an administrator, in the interest of fairness, each party would bear their own costs as was held in Zambia Consolidated Copper Mines Limited vs. Clement Kanaote4 where this Court put it thus> are mindful of the fact that the p,aintiff Fho . , d away ° n 25 A Pn l> 1997 and that the appeal was being defended by order wou.d be that each party bears its own costs.” 5tate and We ,eel that in the circurostances a fair w T d £ £ °, hir J l l That it is trite law that a successful litigant who has not misconducted himself is entitled to costs as of right and that in this case, there is no evidence of any misconduct by the Respondents. Hence, this ground should also be dismissed. In augmenting the written Heads of Argument, Mr. Ndovi submitted that this matter seemed to be turning on the pattern of sitting tenancy and how the court has interpreted that under the sale of the ZCCM houses. He however pointed out that the evidence on record is undisputed and this evidence was that there was no tenancy agreement between the Appellants and the 1st Respondent. Counsel referred us to pages 159 of the Record cf Appeal and in particular, to the evidence of PW1, Simon Lwando, who told the court below that there was no tenancy agreement betweer the teachers and ZCCM but between the Ministry of Education and the 1st Respondent. Counsel pointed out that this position was repeated by the witness and that he admitted that there was no agreement between themselves and the 1st Respondent which could have entitled them to buy the houses. It was argued that it is on the strength of that evidence that tne 1st Respondents argued that there was no legal basis upon which the Appellants oan claim to be entitled to purchase the ZCCM J12 houses. Counsel cited the case of Beatrice Muimui vs. Sylvia Chunda5 in which th.s court stated as follows:- “Ws do not subscribe to the argument that being a sitting tenant is in purchasing of the Government or quasi the sole criterion Government houses in the current policy of empowering employees Government. We important criterion is that the potential purchaser had to be an employee of the Government or quasi Governm ent organization.” that the other judicial notice take ft was submitted that in the current case, the 1st Respondents being or having been a quasi-Governmental institution, there was no evidence that connects the Appellants to the 1st Respondents and therefore, the decision by the court below is properly founded. The learned Counsel for the 2nd Respondent, Mr. Chizu, also relied on the 2 Respondents Heads of Argument. In response to Ground 1 and Ground 2 , it was contended that the statement that: “In the present case the Plaintiffs were not tenants in the houses they occupied. The tenant was the Ministry of Education and Zambia Consolidated copper Mines. There were no tenancy agreements between the Plaintiffs and the owners of the houses Z C C M ...” made by the learned Judge was made in a particular context because the learned Judge had made findings that the tenancy agreement was with the Ministry of Education. It was argued that it is an undisputed fact that the Appellants were employees of the Ministry of Education and therefore, that in this cor:ext the Ministry of Education was the tenant and that this is the reason why rentals were being paid by Ministry of Education and not the J13 Appellants. And that this is evidenced by the letter dated 29th May, 1999 advising one of the Appellants that the Ministry would no longer pay rentals. Similarly the communication on the sale of houses was made to the Ministry of Edjcation in the letter dated 22nd July, 1998 and not to the Appel'ants individually. And that Article 44 (2) (e) of the Constitution cited empowers the President to establish a Government Ministry and hence, the issue of legal capacity in this particular context does not come into play as a Ministry can enter into valid tenancy agreements through its officers. Therefore, that if the Ministry of Education hac no capacity to enter into any valid agreements, then the tenancy agreement in question was a nullity and that, ir the same vein, the Appellants' occupation of the ZCCM houses which was as an incidence of their employment by the Ministry of Education, was a nullity and, therefore, these proceedings were unlawful and must, therefore, be dismissed. In response to Ground 3, it was submitted that it is not a disputed fact that the Appellants were accommodated in ZCCM houses as an incidence of their employment, but that however, Section 3(2) of the Rent Act, Chapter 206 of the Laws of Zambia does not apply to the Appellants in this case. Section 3 (2 ) provides J14 “The Rent Act shall not apply to a dwelling house let to or occupied by an employee by virtue and as an incidence of his em ploym ent.” it was further argued that this issue snould not be raised as a ground of Appeal as it was not raised by the Appellants in the Court below and that the learned trial Judge did not allude to it. The case of Buchman vs. Attorney General6 was cited where it was held that a matter which was not raised in the lower court cannot be raised in a higher court as a ground of appeal. It was argued that this was also emphasized in Mususu Kalenga Building Ltd and Another vs. Richman’s Money Lenders Enterprises7. Where we put it thus:- “We have said before an we wish to reiterate here that where an issue was not raised in the court below it is not competent for any party to raise it in th.’s court” Further that in Barclays Bank Zambia Pic vs. Zambia Union of Financial Institutions and Allied Workers8, it was held that where an issue was not raised in the court below it is not competent for any party to raise it in the Appe late court. In response to Ground 4, it was submitted that the Appellants admitted in the Court below to having disobeyed the two letters from ZCCM which informed them that the houses in question had been sold to new J15 tensnts and that new tenancy agreements should be entered into with the new owners as the tenancy agreement between the Ministry of Education and ZCCM had been terminated. Therefore, that the finding of fact by the learned trial Judge that there was currently no tenancy agreement subsisting between the Appellants and the Respondents cannot be faulted and hence, the Appellants were in unlawful occupation of the said houses and they must vacate. It was argued that the Appellants were never offered the houses in question and that there was never a tenancy agreement and that it was an undisputed fact that the 1st Respondent offered and sold the houses in issue tc the 2nd Respondents. The case of Mudenda vs. Tobacco Board of Zam bia9 was cited in which we stated that:- “We hold the view that in this case although there may have been political pronouncements, the legal position has always been that a licensee is not a tenant at law and as such has no legal right to purchase the house he is living rn except where there has been a firm offer and acceptance of that offer to purchase that house” In response to Ground 5, Counsel cited Order 40 of the High Court Act which provides as follows:- “Under the denomination of the costs of the y .inCUrred by either party 3n account of any cause or atter and in enforcing the decree or order made therein such as thP expenses o. summoning and of the attendance of the parties and w i t n p i included the whole is referees°” nn9 C° P'eS ° f d° CUme" * ' th° J16 Counsel argued that the Respondents having incurred costs for legal representation in this matter, they are entitled to costs. That it is also trite that costs are in the discretion of the courts and that in this case, the learned trial Judge found it worthy to award costs to the Respondents. And that the Appellants had not shown that the learned trial Judge did not judiciously exercise his discretion. As Authority, the case of General Nursing Council of Zambia vs. Mbangwe.a” was cited in which this had that it rs trite law that costs are awarded in the discretion of the court and that sue, discretion however, must he exercised iudiciousiy and that costs shall follow the event. However, that in this particular case the Appellants did not obtain leave to appeal against the order of the courts hence this ground is incompetent. As authority the case of Richard - Nsofu Mandona vs Zambja Natjona) Commercja( ^ p(c National Oil Company Limited, and ^ ^ ^ ^ - s h e l d t h a t n o appeal on costs lies to the Supreme Court without e of the Judge in the Court below. Therefore, that the order was not wrong and should not te set aside. In response to Ground fi ;t , 6, it was contended that the learned trial b p _ ; : J 17 profits to the 2nd Respondents. The case cf Phiraya Lai Alias Piara Lai Vs. Jia Rani Air2, was cited in which it was held th at- Mesne profits are damages paid in resoect of wrongful occupation of immovable property on loss caused by the wrongful possession of the trespasser to the person entitled to the possession of the p ro p ery. It can also be said to be payment made to the Landlord in lieu of rent where the occupation remains beyond the termination point of the tenancy.” the basis of It was submitted that the Appellants admitted in the Court below to having disobeyed the letters in question which informed the Ministry of Education that ZCCM houses had been sold to new tenants and that new tenancy agreements should be entered into with the new owners and the second letter which confirmed that the tenancy agreement between the Ministry of Education and ZCCM had been terminated and advised the occupants of the said houses to enter into tenancy agreements with new owners. it was submitted that since the Appellants -efused to do so, and since the existing tenancy with the government had terminated, then the Appellants therefore became trespassers and as such, they were in wrongful occupation of the said houses. Hence, the learned trial Judge correctly awarded the mesne profits in lieu of rental as the Appellants' remained in occupation beyond the termination point. J18 Counsel submitted that it was clear from the record that the Appellants did not in fact challenge the counter claim at all. And that in the case of National Housing Authority vs. Chalitumelo12, the issue of mesne profits was adequately discussed and was defined as: - T h e profit lost to the owner of land by reason of his having been wrongfully dispossessed of his land” and also as "money that a landlord can claim from a tenant who continues to occupy property after his tenancy ends, the amount being equivalent to the current m arket rent of the property. It was submitted that this Court stated that depending on the circumstances, it would entitle one to mesns profits in the event of a breach. It was Counsel's submission that the Respondents were therefore, entitled to mesne profits because of the following reasons:- (i) Tenancy was terminated (ii) The Appellants were advised to enter into new tenancy with the new landlords (the Respondents) new tenancy agreements «..w„UIlV;W u VIII Ult? OLidte. (iv) The Respondents were deprived of the ie use of houses they had i they were in bought but continued paying nr-m i nuinn ” occuoying. the houses rent In response to the argument concerning interest, Counsel cited the case of N. Dadjee vs. Tirupathi Devasthanam Air13, In which it was held J19 that interest was an integral part of mesne profits and therefore can be allowed in computation of mesne profits. That an order for mesne profits should not tnerefore be set aside as the learned Judge was on firm ground when he awarded interest on mesne profits. In augmenting the 2nd Respondents' Heads of Argument, Mr. Chizu, submitted in response to the case of Zambia Consolidated Copper Mines Limited vs. Richard Kangwa’ cited by the Appellants that their argument is based on the Government Directive on the sale of houses and Home Empowerment Policy but that the 2nd Respondents' argument is that the same Government also had a say when it was deciding that the houses in question be surrendered to the 1s* Respondent who, subsequently sold them to its employees, the 2 "d Respondents. That this is evidenced at page 17 of the Record of Appeal. As regards Ground 5 which urges this court to take judicial notice of the pronouncements by President Rupiah Banda which included the pronouncements that sitting tenants Including teachers should be sold the houses; Counsel argued that this Court is not bound by political pronouncements and that in any oase, if a, all there were any pronouncements made by President Rupiah Banda, by the time of the said pronouncement, this matter was already b e fo re this Court and hence, this J20 Court cannot take into account sentiments from a President or some authority, in determining legal issues which rose sometime back. Counsel urged this ^o irt not to entertain such arguments. He, accordingly, urged us to dismiss “his Appeal for want of merit with oosts. In reply, the Appellants argued saying that it does not take one to be a lav/yer to state that the sale of houses was a brain-child of the Government and hence, the Appellants did not see any reasons why the learned Counsel was saying that this Court should not take into account what ttie Head of State said because they are the ones who actually moved this issue into motion. .-urthe-, that it was not the Government which was supposed to buy the houses or which was the sitting tenants but the Appellants who were living in those houses and are still living there. Hence, this Appeal should be upheld as it has merit. We have seriously considered this Appeal together with the arguments in the respective Heads of Arguments and the oral submissions by all the parties and the authorities cited. We have also considered the Judgment by the learned Judge in the Court below. It is our considered view that the major question raised in this appeal is whether or not the J21 Appellants were entitled to be offered to purchase the houses they occupied by the 1s' Respondent. For convenience, we shall consider Grounds i and 2 of this Appeal together because they raise similar or related issues. However, before proceeding to consider the two Grounds of Appeal, we have found it imperative to restate the salient points, which we consider relevant to the determination of this Appeal. These are that it is not in dispute that the Appellants were all teachers employed by the Ministry of Education and that they were teaching in ZCCM School areas. And that they all occupied the houses in question by virtue of a lease agreement between the Ministry of Education and the1st Respondent. It is also not in dispute that the 1st Respondent did not offer the houses in question to the Appellants following the Government Directive to sell quasi-Governmental houses to sitting tenants. It is also not in dispute that the 2nd Respondents were all ex-employees of the 1st Respondent who had not been paid their terminal benefits following the privatization of ZCCM. It is also a fact that the 2nd Respondents were not Sitting tenants of the houses in question. It was also common cause that the 2nd Respcnoents were offered and they did purchase the houses in questior from the i« Respondent which were occupied by the Appellants by v'rtue of the said lease agreement between the 1st Respondent and the Ministry of Education. It was also common cause that the Appellants received two letters from their employer, the Ministry of Education, advising them that the lease agreement wi:h the 1st Respondent had been terminated and that the houses they occupied had since been offered and sold by the 1st Respondent to its former employees, the 2nd Respondents. They were also advised to either vacate the houses or to enter into direct lease agreements with the new individual owners. The Appellants, however, refused to do either arguing that as sitting tenants, they were entitled to benefit from the sale cf the houses because they were the legal sitting tenants and Government employees. So it is a fact which must be acknowledged that none of the Appellants received any offer to purchase a house from ZCCM. the institution that owned and was selling the houses. Coming back to Grounds 1 and 2 of this Appeal, the thrust of the Appellants’ argument in support of these two Grounds is that the finding by the learned Judge that the Ministry of Education was the sitting tenant of the houses in question and not the individual Appellants, was erroneous as it was against the Home Empowerment ^olicy formulated by the Government of the Republic of Zambia under wnich the sitting tenant is the J23 occupant who is supposed to benefit from the said policy. In response, the Respondents’ position was to support the said finding by the learned Judge whicn we have already alluded to in the summary of their respective submissions above. We have considered the arguments by the parties and the findings by the learned trial Judge. The question to be considered is whether the learned trial judge was on firm ground when he found that the Ministry of Education and not the Appellants was the tenant of the houses in question. In coming to his decision that it was the Ministry of Education which was the legal tenant, the learned Judge considered tie eligibility to purchase Government and quasi-Governmental houses under the Home Empowerment Dolicy. He also considered tie cases cited by Counsel for both parties which included: 1. Beatrice Muimui vs Sylvia Chunda5; 2. Zambia Consolidated Copper Mines Limited and O K Simwmga vs Dr. Francis Khame14; and 3. Zambia Consolidated Copper Mines Limited vs Richard Kangwa and Others1. In those cases, we made it clear that being a s tting tenant was not the only criteria in purchasing a Government or quasi-Governmental house as there are other important criteria to be taken into account including being an employee of the Government or quasi-Governmental organization. J24 In arriving at his decision that the M'nistry of Education and not the Appellants was the legal tenant of the said nouses, the learned Judge put it thus - “In the present case, the plaintiffs were not tenants in the houses they occupied. Ths tenant was the Ministry of Education and the plaintiffs were mere beneficiaries in the tenancy between their employer, Ministry of Education, and ZCCM. There was no tenancy agreem ent between the plaintiffs and the owners of the houses, ZCCM. The plaintiffs were not employees of ZCCM. They therefore had no basis upon which they can claim the houses should have been sold to them. ........ Their claims thus fail and are dismissed”. The Appellants have forcefully attacked the above finding by the learned Judge. However, our firm view is that the two Grounds of Appeal attack findings of fact made by the learned Judge as to who the legal tenant was between the Ministry of Education and the Appellants. In the case cf The Attorney-General vs. Marcus Kampumba Achium e15, and a plethora of other cases, we have repeatedly made it clear that the appellate Court will not averse findings of fact made by a trial court unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial Court acting ccrrectly can reasonably make. The question therefore is, J25 have the Appellants shown that the finding by the learned Judge was perverse or made in the absence of any relevant evidence or a misapprehension of the facts, or was it a finding which on a proper view of the evidence, no Court acting correctly can reasonably make? Have they satisfied any of the above parameter so as to persuade us to reverse the above findings by the learned Judge? Perusal of the evidence on Record has shown that the tenancy agreement was between the Ministry of Education and ZCCM, and not the individual Appellants, a fact which the Appellants’ own witness, PW1, conceded to under cross-examination. Secondly, throughout the tenancy period, it was the Ministry of Education which paid rentals and not the Appel,ants. Thirdly, the correspondence on Record was between the Ministry of Education and ZCCM, and not any of the Appellants. Therefore. there is no bas.s upon which we can reverse the findings of fact by the learned Judge as the finding that it was the Ministry of Education that was the legal tenants and not the Appellants is/was supported by the evidence on Record. As regards the Appellants' argument that the Ministry of Education was no: a legal entity capable of being a sitting tenant or occupying the houses in question, the answer is spelt out in Section 3 of the State Proceedings Act, Chapter 71 of the Laws of Zambia, which provides as follows:- “Subject to the provisions of this Act, the State shall be subject to those liabilities in contract to w h ic i, if it were a private person of full it would be subject and any claim arising age and capacity, therefrom may be enforced as of right against the State in accordance with the provisions of this A ct.” The Ministry of Education does so through its employees. This is a point we need not belabour any further, suffice to say that the argument lacks merit at aw and so do the two Grounds of Appeal. As regards Ground 3 of this Appeal which attacks the learned Judge for awarding masne profits to the 2nd Respondents for what the Appellants termed "the failure to recognize the significance of the relevant provisions of the Rent Act”, and for ordering the Appe lants to forthwith vacate and yield vacant possession of the houses to the 2nd Respondents; we have considered the arguments by the parties. As to the relevance and applies oility cf the Rent Act to the Appellants' case, we have had recourse to Section 3(2) o-'the Rent Act which provides as follows: ar. (U nderlining is ours fo r e m p h asis.) ^ ^ ^ In n lfl(a £ e ' 7 q h ° USf ,Pt ° r O cc u p ied hY h is e m p lo y m e n t ". J27 In this case, we have already stated that the Appellants were accommodated in the ZCCM houses by virtue of their employment as teachers in the Ministry of Education and that it was the Ministry of Education which was the legal tenant. Therefore, Section 3(2) of the Rent Act specifically excludes the Appellants 'rom it’s application as they occupied the houses by virtue of their employment with the Ministry of Education. As such, they cannot claim any bsnefits under the Rent Act. rurthe-, we totally agree with the submissions by learned Counsel for the Respondents that the Appellants did not raise the issue of the relevance of the Rent Act to their case. They are therefore, precluded from raising it as a ground of appeal before us as ft is settled that a matter that was net raised n the lower court cannot be raised in a higher court as a ground of appeal as was clearly spelt out in Buchman vs. Attorney General6, and in Mususu Kalenga Building Limited and Another vs. Richman s Money Lenders7, to mention a few. Hence, Ground 3 of this Appeal flies directly in the teeth of our decisions in the above cited cases. The same is dismissed for incompetence. Ground 4 of this Appeal raises the question whether the 2"a Respondents were entitled tc mesne profits and interest thereon from the Appellants as found by the learned Judge. ,n this regard, the Appellants J28 have argued :hat since the Court below found that there was no tenancy agreement between the Appellants and the Respondents, it ought not to have awarded mesne profits to the 2rd Respondents because the Appellants lawfully occupied the houses and they were not trespassers. The cist of the Respondents’ arguments in response was that the decision of the learned Judge cannot be faulted as the Appellants did not oppose the 2nd Respondent’s counterclaim for mesne profits and they had no legal basis .o remain in occupation of the houses in question after they were sold to the 2nd Respondents. We have considered the arguments by the parties. To resolve the question raised in this Ground, we have had recourse to paragraph 255 of Halsbury's Laws of England 4th edition, volume 27, which provides as follows:- I n S ft landlord may, recover in an action for mesne p o i U the damages which he has suffered through beinq out of possession of the Land, or if he can prove no actual damaqe caused ^y„ j m „by, the defendant's trespass, the landlord may recover L fo r th i n r 0 f iH *5® am ount of the open market value of the premises the rent paid undP defendant's wrongful occupation. In most cases the rent paid under any expired tenancy will be strong evidence as to trespass’ can onr„a'h e- trespass can only be recovered continued occupation after the expiry of his leaal riah* t o l r in resoect nf the Pr° fltS b a 'VPe of damages for J29 !n Valentine Webster Chansa Kayope vs. Attorney General19, we opined that the appellant kept the respondent out of the house without lawful justification, the law governing mesne profits stipulates that he must pay the mesne profits to the respondent for his continued occupation of the house after the expiry of his legal right to occupy it. And in Peter Militis vs. Wilson Kafuko Chiwala20, we held that mesne profits being damages for trespass, can only be claimed from the date when a defendant ceased to hokJ the oremises as a tenant and became a trespasser. Apply'nc the above authorities to the -'acts of this case, it is clear that the learned Judge was on firm ground when he found that the 2nd Respondents were entitled to mesne profits. The reason being that although the Appellants initially legally occupied the houses in question, their continued occupation of the houses after they were advised by the two letters refened to above that the houses had been sold to the 2nd Respondents and to either vacate the houses or enter into individual tenancy agreements with the new owners, which they did not, they became trespassers. They instead became defiant under the guise or an unjustified misconception that they were the ones who v/ere entitled to be offered and to purchase the houses in question. They did so at their own peril. It follows that as a result of the Appellants’ own wrongful attitude, the 2nd J30 Respondents were deprived of the use of their houses without any lawful justification. 80 , from that period, the Appellants became trespassers beccuse :hey ceased to fegaliy hold tne premises as the tenancy agreement by virtue of which they occupied the houses had been terminated Consequently, the learned trial Judge cannot be faulted for awarding the 2na Respondents mesne profits from the date of their Counterclaim up to the date the Appellants would yield vacant possession of the houses. We further find that the Indian case of Phiraya Lai Alias Lai Vs Jia Rani Air2 cited and relied upon by the Appellants to support their argument that the 2 Respondents were not entitled to mesne profits does not at all support thei' case as it is even more favou'able to the 2nd Respondents because it decides that a person in occupation or possession without proper title, (as the Appellants in the case in casu), is liable to mesne profits to the holder of possessory title or the true owner of the land or property, who in the current case are the 2nd Respondents. As regards the argument that the learned Judge should not have awarded interest on the mesne profits because the Appellants legally occupied the houses in question, our firm view is that the trial Judge cannot be faulted because the award of interest on a noney judgment is statutory. J31 Order 38/8 o: the High Court Rules Chapter 25 of the Laws of Zambia provides that where a judgment or order is for a sum of money, interest shal be paid thereon. Further, interest is awarded on a judgment debt as compensation for being deprived of the use of a person's money. Therefore, there cannot be any merit in the Appellants’ argument that the trial Judge was wrong when he awarded interest on the mesne profits awarded to the 2nd Respondents. Ground 4 of this Appeal also fails. As regards Ground 5 which challenges the learned Judge for awarding ccsts to the Respondents, the Appellants' argument in support of this Ground is that since they brought their case to Court to pursue their rights under the Home Empowerment Policy and as a result of pronouncements made by the then Republican President, Mr. Rupiah Bwezani Banda, to the effect that all sitting tenants were entitled to purchase the houses they occupied, the teachers inclusive, the court below ought not to nave condemned them in costs. In response, the Respondents suoported the decision of the learned Judge on grounds we have already alluded to in the summary of their arguments above. We have considered the arguments by the parties. It is trite law that the award of costs is in the discretion of the court. It is also settled that costs ars normally awarded to a successful party except where such a party is guilty of some misconduct. In the current case, there is no doubt that the Respondents must have incurred costs in defending this action and as sjch, they were entitled to costs. In Richard Nsofu Mandona vs Zambia National Commercial Bank Pic., Zambia National Oil Company Limited, and Attorney General11 and in J. K. Rambai Patel vs Mukesh Kumar Patel21, we stated that a successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the condjct of the party which makes it improper for him to be granted the costs. The Respondents in the case in casu were the successful parties in the Court below. So there was nothing in the nature of their claim or conduct that would have caused the learned Judge to use his discretion and deprive them of their costs. As regards the argument raised concerning the political pronouncements as highlighted in the summaries above, the view that we take is that although political pronouncements may have been made as alleged by the Appellants, the role of the Court is to adjudicate on disputes before it in accordance with the law as it existed. Therefore, as much as we agree with the Appellants that the Home Empowerment Policy was primarily meant to benefit sitting tenants as held in numerous cases, there J33 are/ were other criteria that had to be taken into account in determining the eligibility of ar individual to be offered to purchase a house apart from one being a sitting tenant. In Zambia Consolidated Copper Mines Limited vs. Richard Kangwa and Others1, we pronounced that it is a mistake to talk about political directives and to ignore the Government’s other more relevant character and capacity as the shareholder with the controlling interest in qussi-Governmentai organizations such as the 1st Respondent. Like in the curent case, the Government allowed ZCCM to sell some of its properties to its employees including the 2nd Respondents, and not to the Appellants, in order to reduce its bill on terminal benefits owed to its employees. We have already illustrated some of the points under, Grounds 1 and 2 of this Appeal on eligibility criteria to purchase such houses. We have stated that the Appellants fell short of this because firstly, they were not the legal sitting tenants but mere occupants or licensees of the houses in question which they occupied by virtue of their employment with the legal tenant, the Minstry of Education. Secondly, they were not employees of ZCCM, the organization that was selling the houses. And thirdly, they never received an> offer from ZCCM which was selling the houses. In Timothy Hamundu Muuka Mudenda vs. Tobacco Board of Zambia , we made it clear that despite political pronouncements, the legal J34 position has always been that a licensee is not a sitting tenant at law and as such, he had no legal right to purchase the house he was living in except where there has been a firm offer and acceptance of that offer to purchase the house. The Appellants in the case in casu, despite the political pronouncements that they claim influenced their decision to pursue their rights in court, had no legal right to purchase the houses in question, as they have never been given any offer to purchase the houses. Therefore, having lost their claim in the Court below, they were properly condemnec tc costs. As regards the issue raised by the 2nd Respondents that the Appe ants needed to have obtained leave of the Court below in order for them to bring an appeal against the award of costs before this Court; our response is that this argument is misconceived because Section 24 (1) (d) of the SCR on y applies where the grouna of appeal is only against an award of costs. The Sub Section provides as follows: - No appeal shall lie- (d) S T Z r der °! thA. Hi9h Col,n or a"V Jud9e * • » " « * made with the consent of the parties or from an order as to costs w h ich b y law is left to the discretion of the court without h C°,un 0r ° f the Judge who made the order or if , H®r refused' without » e leave of a Judge of the hat h C o Court, (Underlining ours for emphasis) J35 In the current case, the Appeal was not only against the award of costs. It is c Iso our firm view that the case of Richard Nsofu Mandona vs. Zambia National Commercial Bank Pic., Zambia National Oil Company Limited, and Attorney General11 relied upon by the learned Counsel for the 2™ Respondent should be distinguished from the current case as in the earlier case, the appellant's appeal was against the none award of costs following the discontinuance of the Counterclaim by the 15t and 2nd respor dents. We declined to consider the issue of costs because the appellant had not obtained leave to appeal from the Judge in the court below against the non-award of costs for the discontinued counterclaim. In the current case, the Appellants' Appeal was not limited to costs. Therefore, nc leave was required from the lower court for the Appellants to appeal against the award of costs. The above argument, therefore, has no merit. With regard to Ground 6 of this Appeal which attacks the learned Judge for awarding mesne profits and interest to the 2"< Respondents and the arguments in support thereof, our response is that issues raised under this Ground have already been considered and dealt with under Grounds 3 and 4 c f this apoeal. There is, th e re fo re , no need for us to re p e a t J36 ourselves here suffice to say that the same have no merit for the reasons given under those Grounds of Appeal. All the s x grounds of Appeal having failed, the sum total is that this Appeal has wholly failed. The same is dismissed with costs to the Respondents to be taxed in default of agreement. We further order the Appellants to vacate the houses in question within 14 days from today. In default thereof, the Zambia Police are directed to assist the 2nd Respondents to evict the Appellants from the said houses. H. Chibomba SUPREME COURT JUDGE E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE