Osgood Muntanga v Muntanga and Anor (Appeal 60 of 2001) [2003] ZMSC 132 (17 April 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 60/2001 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: OSGOOD MUNTANGA APPELLANT AND ROSTER MUNTANGA 1ST APPELLANT ZAMBIA RAILWAYS LIMITED 2nd APPELLANT CORAM: LEWANIKA, DCJ., CHIRWA, CH1BESAKUNDA, JJS On 17th April, 2002 and.......... April, 2003. For the Appellant: For the 1st Respondent: For the 2nd Respondent: A. MW ANS A of Legal Resources Chambers A. M. MUKUKA of A. M. Mukuka & Co. No Appearance JUDGMENT LEWANIKA, DCJ, delivered the judgment of the court. In this appeal we shall refer to the 1st Respondent as the Plaintiff and the Appellant as the 1st Defendant and the 2nd Respondent as the 2nd Defendant which is what they were I the court below. The Plaintiff had instituted proceedings in the court below by way of Originating Summons claiming:- (a) (b) (c) a declaration that the Plaintiff is the sole owner of House No. 8 Chisokone Street, Kabwe an Order that the 1st Defendant relinquish possession of the said house No. 8 Chisokone Street, Kabwe an Order that the 2nd Defendant furnishes the sale transaction of the said house between the Plaintiff and the 2nd Defendant. The evidence on record is that the Plaintiff was married to one LAMECK MAPEPULA MUNTANGA (deceased) an employee of the 2nd Defendant and she was registered as such with the 2nd Defendant. The lsl Defendant is a stepson of the Plaintiff and the administrator of the estate of the late LAMECK MAPEPULA MUNTANGA. On 1st February, 1999 the late MUNTANGA applied to the 2nd Defendant to purchase House No. 8 Chisokone Street, Kabwe. Regrettably the late MUNTANGA passed on 10th February, 1999 before his application could be processed and no offer was ever made to him. The Plaintiff and the later MUNTANGA did not have children but the later MUNTANGA left nine children including the 1st Defendant from other wives. There is evidence on record that after the demise of the late MUNTANGA the relationship between the Plaintiff and the children was not good and there was evidence of the 1st Defendant physically assaulting the Plaintiff and eventually evicting her from the house. By letter dated 24th February, 1999 appearing on page 49 of the record the 2nd Defendant offered the said house to the Plaintiff at a price of K5,200,000.00. The Plaintiff accepted the said offer and paid the full purchase price from her share of the estate of the late MUNTANGA as evidenced by the voucher on page 56 of the record. This payment was made on 7th October, 1999. By an undated letter appearing on page 59 of the recored the 1st Defendant applied to the 2nd Defendant to purchase the same house in his name as administrator for the benefit of all the children of the deceased. By a letter dated 7th October, 1999 appearing on page 58 of the record, the 1st Defendant wrote to the 2nd Defendant explaining why the house should be sold to him and not the Plaintiff. The learned trial Judge on the evidence adduced before him found that the late Mr. MUNTANGA did not buy the house at the time of his demise. That the Plaintiff paid the 2nd Defendant the full purchase price of the house from her share of the estate and that the ls< Defendant and his siblings got their share of the estate. He also found that house No. 8 Chisokone street was not part of the estate of the late Mr. MUNTANGA and that the 1st defendant had no jurisdiction over it. He made a declaration that the Plaintiff is the sole owner of the house and that the hostilities between the Plaintiff and the Ist Defendant made it difficult for him to consider joint ownership of the house and made the following Orders 1. 2. 3. that the 2nd Defendant completes the sale transaction and transfer title deeds to the Plaintiff within three months from the date of judgment; that the 2nd Defendant gives vacant possession of the house to the Plaintiff on transfer of title deeds; that the 1st Defendant and anyone in occupation of the house without the authority of the Plaintiff vacate the house within three months of the date of judgment. It is against the declaration and the orders that the 1st Defendant has appealed against. Counsel for the 1st Respondent has filed three grounds of appeal namely 1. that the learned trial Judge misdirected himself when he relied on documentary evidence that was not produced in court; 2. 3. that the learned trial judge misdirected himself when he held that the appellant never applied for the purchase of house No. 8 Chisokone Street when the Appellant in person and in writing made it known to the 2nd Respondent that he was more than willing to purchase the subject house for the benefit of all beneficiaries; that the learned Judge misdirected himself when he held that the hostilities which were not in any case in issue, between the Appellant and the 1st Respondent made it difficult to order joint ownership when the Appellant was not the only beneficiary. In arguing the appeal counsel for the 1st Defendant said that he was relying on the heads of argument as well as the submissions in the court below. In relation to the second ground of appeal, counsel said that he wished to highlight the fact that the 1st Defendant wrote to the 2nd Defendant showing his willingness to purchase the house for the benefit of all beneficiaries and referred us to the letter on page 59 of the record. He said the letter was written after a family meeting and in undated, but should have been written immediately after the meeting. He said that the 1st Defendant did not receive a response fromt eh 2nd Defendant. He said that contrary to what the court below found the 1st Defendant did apply to purchase the house in issue. He also pointed out that the deceased had also applied to purchase the house from his accrued benefits as evidenced by the application on page 56 of the record. He complained that the 2nd Defendant was at fault to have offered the house to the widow barely two weeks after the demise of the deceased. He said that according to the policy on the sale of houses contained on page 62 of the record both the Plaintiff and the 1st Defendant were entitled to purchase the house. He further said that the 2nd Defendant should have offered the house to the estate of the deceased for the benefit of all the beneficiaries. He urged us to allow the appeal and set aside the judgment and orders of the court below and make an order that the house be offered to the 1st Defendant and the other children. Counsel for the Plaintiff said that he was relying on the heads of argument and his submissions in the court below. He however said that the learned trial Judge was correct on the decision he arrived at as there was ample evidence of hostility between the 1st Defendant and the Plaintiff and that had the house not been offered to the Plaintiff, it would have been sold to other people who are not even related to the parties. We have considered the submission of counsel for the 1st Defendant and for the Plaintiff as well as the evidence on record. There is no dispute that the Plaintiff was the widow of the deceased and that 1st Defendant was a son and that at his demise the deceased was an employee of the 2nd Defendant. There is also evidence on record that prior to his demise the deceased had applied to purchase the house he was living in being 8 Chisokone Street, Kabwe on 1st February, 1999. Regrettably the deceased passed away on 10th February 1999 before his application would be processed. At the time of his demise the deceased had not bought the house and it did not for m part of his estate. Under the policy on the sale of houses belonging to the 2nd Defendant contained on pages 62 to 66 of the record, those eligible to purchase houses are defined in Clause 3 as follows:- 3.0. Eligible to Purchase 3.1. 3.2. Persons eligible to purchase houses from the Railways will include the following:- Persons who are registered spouses to deceased Railway employees, provided that such former employees died on or after Is1 March 1998 and are sitting tenants in a Railway house, 3.5. Persons who are registered children of the deceased Railway employees provided that such persons are above 16 years of age and are capable of making independent decisions In terms of this Clause both the Plaintiff and the 1st Defendant were Eligible to purchase the house in question. There is no evidence on record as to when the Plaintiff applied to purchase this house but there is evidence that on 24th February, 1999 the 2nd Defendant made an offer to the Plaintiff topurchase the house, which offer was accepted by the Plaintiff. There is also evidence on record that the Plaintiff paid the full purchase price of the house on October, 1999 from her share of the estate. There is an undated letter on page 59 of the record which is an application by the 1st Defendant to purchase the same house. However, more significantly is the letter on page 58 of the record written by the Is1 Defendant to the 2nd Defendant dated 7th October, 1999. In this letter the Is1 Defendant is explaining why the house should be sold to him and not the Plaintiff . The contents of this letter are not only misleading but patently false as the house was never offered to the deceased and did not form part of his estate. What is significant about this letter is that it was written on the same day that the Plaintiff paid for the house from her share of the estate and presumably the lsl Defendant also received his share of the estate on the same date. In fact one gets the impression that the two letters were written on the same day after the 2nd Defendant had learnt that the plaintiff had paid for the house. As we have stated earlier the house did not form part of the estate of the late Mr. MUNTANGA and both the Plaintiff and the 2nd Defendant were eligible to purchase it. An offer was made to the plaintiff, none was made to the 1st Defendant. The 2nd Defendant was under no obligation to offer the house to the 1st Defendant. The 1st Defendant has had his share of the estate of the deceased and he cannot have his and eat it. In turn we find no merit in this appeal which we dismiss with costs, the costs are to be taxed in default of agreement.