Chewe v Bwino and Anor (Appeal 25 of 2004) [2005] ZMSC 44 (7 June 2005)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 25/2004 HOLDEN AT NDOLA BETWEEN: MARGARET KASUMBA CHEWE Appellant AND MILDRED CHILESHE BWINO 1st Respondent ATTORNEY GENERAL 2nd Respondent CORAM: Sakala, CJ., Chibesakunda JS and Munthali AJS 7th December 2004 and 7th June 2005 For the Appellant: Mr. S. A. G. Twumasi of Kitwe Chambers For the 1st Respondent Mr. Masengu of Masengu and Company JUDGMENT Sakala, CJ., delivered the judgment of the Court. On 7th December 2004, when we heard this appeal, we dismissed it as .z-" being without merit and ordered costs to the 1st respondent to be taxed in default of agreement. We indicated then that we shall give our reasons later in a written judgment. We now give those reasons. This is an appeal against the judgment of the High Court ordering that the 1st respondent was the rightfill occupant of House No. 5 Jambo Drive, Kitwe and that the appellant should vacate the servant quarters she was occupying at the same premises. For convenience, the appellant will be referred to as the 2nd respondent, the 1st respondent will be referred to as the applicant and the 2nd respondent will be referred to as the 1st respondent, which they were in the Court below. This matter has a strange history, not supported by any rules of practice and procedure. According to the record, on 16th December 1996, the applicant filed an Originating Notice of Motion for Judicial Review, having earlier . obtained leave before the Hon. Mr. Justice Chileshe. In her application, she i sought for an order declaring her rights as occupant of House No. 5 Jambo Drive, Kitwe by virtue of her allocation of the same by Kitwe’s Government Pool Housing Committee. At that time, the parties to the action were the applicant and the Attorney General. On 7th February 1997, the applicant and the respondent filed a Consent Order, which was duly signed by the Hon. Mr. Justice Chileshe (now retired). Notwithstanding the Consent Order, Kitwe Chambers on behalf of the 2nd Respondent, on 25th February 1997, filed an ex-parte application to stay execution of the Consent Order and to stay proceedings. In addition to the ex- parte application, Kitwe Chambers also filed an application to add Margaret Kasuba Chewe as the 2nd respondent in the action. Subsequently, Margaret Kasuba Chewe, upon hearing the applications was made 2nd respondent. The present appeal is against the Judgment of the Hon. Mr. Justice Wanki, who had nothing to do with the earlier applications of joining the 2nd respondent to the proceedings. In his judgment, the Hon. Mr. Justice Wanki noted that the application for Judicial Review was instituted against the Attorney General; the 1st respondent; and the matter was settled on 7th February 1997 following upon a Consent Order. The Hon. Mr. Justice Wanki wondered in his judgment that despite the Consent Order, Margaret Kasuba Chewe, the 2nd respondent, applied for the setting aside of that Consent Order and to be joined as 2nd respondent. Mr. Justice Wanki observed that the question that begged the answer was whether it was proper for the 2nd respondent; who was not a party to the Consent Order to apply to set aside that Order? The other question observed by the Hon. Judge was whether it was proper for the 2nd respondent to apply to be joined to an action for Judicial Review when such an application can only be instituted against Government or Quasi Government bodies. The Hon. Mr. Justice Wanki, correctly so in our view, held the view that it was not proper for the 2nd respondent to set aside a Consent Order and to be joined to proceedings, which she was not a party. The Hon Judge pointed out that if the 2nd respondent had any interest in the matter, she should have commenced her own proceedings against the Attorney General. We agree with the observations of the Hon. Mr. Justice Wanki. All we can say at this stage is that, the approach taken on behalf of the 2nd respondent as accepted by the Hon. Mr. Justice Chileshe was and is not supported by any rules of practice and procedure. Be that as it may, the Hon. Mr. Justice Wanki decided to deal with the matter on its merit and heard the evidence from all the parties except the Attorney General. In dealing with the issues presented before him, the learned trial Judge noted that the Attorney General had no quarrel or dispute with the applicant’s claim as evidenced by the Consent Order that was purportedly set aside by a stranger. The Court observed that the Attorney General did not cross-examine the witnesses and had not called evidence. The Court concluded that, that being the case, the applicant’s action against the Attorney General succeeded. In relation to the 2nd respondent, the Court accepted that the 2nd respondent was at the material time employed as a teacher and was also a widow of the late Mr. Chewe, who died on 31st March 1994; that Mr. Chewe, before he died, occupied the house in issue by virtue of being a Head Teacher ■ of Valley View Basic School. The Court accepted that following the death of Mr. Chewe, the Ministry of Education, his employers applied to retain the house for the occupation of the applicant, who had taken over as Head Teacher at Valley View School. This application for retention of the house was granted. This house was subsequently dully allocated to the applicant. In turn, the 2nd respondent was allocated Flat No. 11 Ingwe, which was a condition of allocating House No. 5 Jambo Drive to the applicant. The Court accepted the evidence that the 2nd respondent did not qualify for House No. 5 Jambo Drive as well as Flat No. 11 Ingwe. The Court also accepted the evidence that at the time Mr. Chewe died on 31st December 1994 and at the time House No. 5 Jambo Drive was allocated to the applicant, the policy of selling Government Pool Houses had not been introduced. On this evidence, the Court pointed out that the 2nd respondent had no justification to claim House No, 5 Jumbo Drive Kitwe; but that the applicant was the correct applicant as he was the sitting tenant at the time the Policy to sell Government Houses was introduced. The Court entered judgment in favour of the applicant with costs to be taxed in default of agreement; hence the appeal to this Court. Mr. Twumasi filed written heads of argument based on three grounds. He relied on the written heads of argument, while Counsel for the applicant relied on the record. There was no representation on behalf of the Attorney I General. The three grounds of appeal were that the learned trial Judge erred in law and fact in not recognizing the fact that at the time the 2nd respondent was evicted from the house there was a standing order against eviction by the Government; that the learned Judge erred in law and in fact in not accepting the evidence that the 2nd respondent’s claim was based on her status as a widow and not as a teacher and that the learned trial Judge failed to consider the evidence of the decision of the Committee on Sale of Government Pool Houses. The arguments and submissions on these grounds flew in teeth of the documentary and oral evidence on record, which the learned trial Judge properly considered and accepted. All we can say is that the 2nd respondent was wrongly advised to join herself to this action which had already been concluded by a consent judgment. Even in the absence of the consent judgment; the overwhelming evidence accepted by the trial Judge was that on 24 November, 1995, the house in issue was allocated to the applicant who was a sitting tenant at the time the Policy to sell Government Houses was introduced. The applicant was therefore the proper tenant entitled to purchase the house in question. For the foregoing reasons, we dismissed the appeal with costs to be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE S. K. Munthali ACTING SUPREME COURT JUDGE