Ritah Chanda v Ngulube and Anor (Appeal 162 of 2015) [2018] ZMSC 569 (8 June 2018)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Appeal No.162/2015 BETWEEN: RITAH CHANDA AND VIOLET NGULUBE APPELLANT 1st RESPONDENT ZCCM INVESTMENT HOLDINGS PLC 2nd RESPONDENT CORAM: Wood, Kajimanga and Musonda, JJS On 5th June 2018 and 8th June 2018 FOR THE APPELLANT In Person FOR THE 1st RESPONDENT Mr. M. J. Kawana, Messrs Corpus Globe Legal Practitioners FOR THE 2nd RESPONDENT Mrs J. Ndovi, In-House Counsel JUDGMENT Kajimanga, JS delivered the judgment of the court Cases referred to: 1. Zambia Consolidated Copper Mines Limited v Richard Kangwa and Others (2000) Z. R. 109 2. Zambia Consolidated Copper Mines Limited v Eddie Katalayi, Max Chilongo and Another (2001) Z. R. 28 3. Andrew Winter Chilanzi and Moses Chisha v ZCCM Investment Holdi Plc - Appeal No. 128 of 2009 4. Attorney General v Steven Luguru (2001) Z. R. 116 J2 5. Josephine Kabwe v Dominic Kapasa SCZ Judgment No. 4 of 2014 6. Frank Malichupa and others v Tanzania-Zambia Railway Authority (2008) Volume 2, Z. R. 112 7. Attorney General v H. R. H. Prince Ernest Augustus of Honover [1957] AC 8. Timothy Hamaundu Muuka Mudenda v Tobacco Board of Zambia - Appeal No.40 of 1998 9. Beatrice Muimui v Sylvia Chanda - Appeal No. 50 of 2000 10. Simon Lwando and Other Teachers v Zambia Consolidated Copper Mines Limited - Appeal No. 83 of 2009 11. Attorney General v Marcus Kampumba Achiume (1983) Z. R. 1 12. Bank of Tokyo Limited v Karoon and Another [1986] 3 ALL ER 468 13. Jones v National Coal Board [1975] 2 ALLER 155 14. Priscilla Mwenya Kamanga v Attorney General and Peter Ng’andu Magande (2008) Z. R. 7 Vol. 2 Introduction 1. The issue in this appeal is whether a non-employee of the then Zambia Consolidated Copper Mines Limited (ZCCM) occupying one of its housing units could be given the first option to purchase the property as a sitting tenant under the Rules Governing the Sale of ZCCM Houses to Zambian Employees. The appeal emanates from a judgment of the High Court dated 11th February 2015 which dismissed the appellant’s claims against the respondents and upheld the 1st respondent’s counterclaim against the appellant. J3 2. The case arose from a decision of the 2nd respondent against selling one of its housing units to the appellant who had been in occupation of the same for several years, preferring instead to sell to one of its employees who had never been a sitting tenant of the property. Background to the dispute in this appeal 3. The short history of this matter is that in 1987, the appellant was employed by Chimanga Changa Milling Company Limited (Chimanga Changa) which, at the time, was a subsidiary of the 2nd respondent. As an incident of her employment, the appellant was allocated Flat No. 33 Mukuba Court, Hillcrest, Ndola (the flat) which said property was owned by the 2nd respondent and being rented by Chimanga Changa. Sometime in 1995, Chimanga Changa ceased to be a subsidiary of the 2nd respondent. Subsequently, there was a Presidential directive stating that sitting tenants were entitled to purchase ZCCM houses whether or not they were directly employed by the 2nd respondent. The appellant then applied to the 2nd respondent to purchase the flat as a sitting tenant. However, the flat was instead offered to one J4 Edwin Machaka Mulungu (the deceased), an employee of the 2nd respondent and the appellant was asked to vacate the flat. The Appellant’s claim and the Respondent’s defence before the High Court 4. Aggrieved by the 2nd respondent’s decision, the appellant took out an action against the respondents in the High Court claiming: i. An order of injunction restraining the 1st and 2nd respondents from interfering with the appellant’s quiet enjoyment of the premises known as Flat No. 33 Mukuba Court, Hillcrest, Ndola. ii. An order declaring the appellant as protected sitting tenant of Flat No. 33, Mukuba Court, Hillcrest, Ndola. iii. An order to the 2nd respondent to re-issue the letter of offer in the appellant’s name as she is the rightful buyer. iv. An order declaring the 1st respondent’s claim as null and void and [revoking] the earlier letter of offer. v. Any other reliefs the court may deem fit. 5. The appellant’s claims where premised on the contention that she had been the legal sitting tenant of the flat since 1987 and that she had applied to purchase it in 1996 but it had not been offered to her. She contended that she had written several letters to the 2nd respondent regarding the matter which were to no avail as the J5 2nd respondent insisted that the flat had been offered to the deceased. 6. In 2006, the 1st respondent instituted an action against her in the High Court at Ndola seeking that the letter of offer be transferred in her name. According to the appellant, the matter was not tried but dismissed in 2011 after which she was informed by counsel for the 2nd respondent that the company would transfer the letter of offer into the name of the estate of the deceased. 7. In her defence, the 1st respondent disputed the appellant’s claim and counterclaimed the following: i. A declaration that Flat No. 33 Mukuba Court, Hillcrest, Ndola forms part of the estate of the late Edwin Machaka Mulungu; ii. An order for vacant possession of Flat No. 33 Mukuba Court, Hillcrest, Ndola; iii. Mesne profits of K3,600.00 for the period from January 2003 to December 2005 at K150.00 per month; iv. That the appellant pays the outstanding bill for the rentals from 2006 to date; v. Interest on the said sum at the current commercial bank lending rate; vi. Any other relief the court deems fit. vii. Costs. J6 8. For its part, the 2nd respondent contended that it had never offered the flat to the appellant for purchase but that it had only informed the appellant that the said flat had been offered to the deceased. The 2nd respondent, therefore, denied that the appellant was entitled to the reliefs she was seeking. Evidence of the parties in the High Court 9. The appellant’s evidence was that she started working for Chimanga Changa as a Secretary on 14th January 1987. At that time, Chimanga Changa was a subsidiary of the 2nd respondent. By virtue of her employment with Chimanga Changa, the flat was allocated to her. Chimanga Changa was paying rentals for the said flat to the 2nd respondent. In 1995, Chimanga Changa ceased to be a subsidiary of 2nd respondent and returned to its original owners, the Mahtani Group of Companies. 10. In 1996, the 2nd respondent started selling its houses. On 4th October 1996, the appellant wrote to the Property Management Officer at ZCCM in Lusaka and applied to buy the flat. However, her application was turned down on the ground that she was not an employee of the 2nd responden. Later, the 2nd respondent wrote J7 a letter to Chimanga Changa advising that the flat had been sold to the deceased and that rentals were to be paid to him. 11. It was her testimony that there were 13 people who were not employees of the mines but were sold ZCCM houses. Among them was Dr. Lembalemba who worked for Ndola Central Hospital and was allegedly sold Flat 34 and Dr. Simumba who worked for Boart Long Year and was a sitting tenant of the flat he was sold. She stated that the reason these people were sold the flats was because of the Presidential directive that all sitting tenants should be offered houses. However, she had no evidence that the individuals referred to above bought the flats from ZCCM. 12. She also testified that the deceased had bought a house in Lusaka as a sitting tenant but had never been a sitting tenant in the flat which was sold to him. She stated that she was the one paying municipal council rates, as well as electricity and water bills for the flat and that the bills for rates and for water were being issued in her name. 13. She, however, admitted that the flat was the property of the 2nd respondent and that she worked for the 2nd respondent from J8 November 1968 to 1986 and that after 1987, she had never worked for the company. Further, that at the time the 2nd respondent started selling its houses in 1996 she was not an employee of ZCCM. 14. She also admitted that the objective of the ZCCM Rules Governing the Sale of ZCCM houses was to sell to Zambian employees of ZCCM and that this meant that priority was to be given to ZCCM employees who were sitting tenants. 15. She conceded that she was not offered the flat for purchase because she was not an employee of ZCCM and that the deceased was an employee of ZCCM, although he was not a sitting tenant. 16. She further stated that she stopped working for Chimanga Changa on 4th January 2005 when it discontinued paying rentals for the flat on her behalf to ZCCM but that she did not start paying rentals for herself and had never signed a tenancy agreement with the 2nd respondent. That however, there was a tenancy agreement between the 2nd respondent and Chimanga Changa when the latter was still under Mulungushi Investments. That Chimanga Changa was the tenant and paid rentals to the 2nd respondent for J9 her accommodation by virtue of her employment with it. She admitted that she was supposed to have vacated the house when she stopped working for Chimanga Changa and that the only reason why she remained in the flat was because this matter was pending in Court. 17. The evidence of the 1st respondent was that her brother, the deceased, was the owner of the flat and that he started working for the 2nd respondent in 1976. In 1997, the 2nd respondent offered him to buy the flat in issue. He accepted the offer on 9th December 1997 and signed the contract of sale with the 2nd respondent on 26th January 1998. After the deceased had fully paid for the flat, he wrote a letter to Chimanga Changa stating that the house no longer belonged to 2nd respondent but to him and therefore, that they should be paying rentals to him. Thereafter, Chimanga Changa began paying rentals to him in 1998 until 2005. 18. It was her evidence that when she went to Chimanga Changa in 2004 to collect a cheque for rent arrears, she was informed by Mr. Gupta, an employee of Chimanga Changa, that the flat would be J10 handed over to the deceased’s family in January 2006 and that the appellant was no longer working for ZCCM. Therefore, it was up to the family to decide whether or not to continue with her as a tenant. 19. The 1st respondent testified that she never received any rentals from the appellant after Chimanga Changa stopped paying for the appellant as she refused to pay the same and that from 2006, the estate never collected any rentals from the flat as the matter was in court. 20. She also stated that when the deceased was sold the house he was staying in Lusaka where he was working for the 2nd respondent. He bought a house in Lusaka but not from the 2nd respondent but from a company called LENCO. However, when the deceased bought the flat in issue in 1997, and up to the time he died, he was still working for the 2nd respondent at the Trust Hospital in Lusaka as a laboratory technician. 21. Boyd Senete, the human resources officer at Chimanga Changa testified that the appellant was an employee of Chimanga Changa from 1st December 1999 and that she was accommodated by her Jll employer in the flat until 2005 when she retired. After her retirement, she continued staying in the same flat and Chimanga Changa stopped paying rent and told her to make arrangements with the owner if she wanted to continue occupying the flat. 22. James Kalipeni Tembo, a former titles officer at the 2nd respondent testified that under the Rules Governing the Sale of ZCCM Houses, the term “sitting tenant” means a ZCCM employee in occupation of a ZCCM house during the ZCCM house sale. He stated that it was possible for ZCCM to sell a ZCCM house to a ZCCM employee who was not in occupation of the house because the purpose of the Rules was to benefit all ZCCM employees across ZCCM. He also testified that the objective of the Rules was to sell to Zambian employees of ZCCM and therefore, that the sale was intended for employees of ZCCM. 23. That according to the said Rules, those who were eligible to purchase ZCCM houses were confirmed Zambian employees, meaning that the sitting tenant had to be a ZCCM employee at the time of sale. He stated that a letter of offer had not been given to the appellant to purchase the flat and that the offer letter that Jll employer in the flat until 2005 when she retired. After her retirement, she continued staying in the same flat and Chimanga Changa stopped paying rent and told her to make arrangements with the owner if she wanted to continue occupying the flat. 22. James Kalipeni Tembo, a former titles officer at the 2nd respondent testified that under the Rules Governing the Sale of ZCCM Houses, the term “sitting tenant” means a ZCCM employee in occupation of a ZCCM house during the ZCCM house sale. He stated that it was possible for ZCCM to sell a ZCCM house to a ZCCM employee who was not in occupation of the house because the purpose of the Rules was to benefit all ZCCM employees across ZCCM. He also testified that the objective of the Rules was to sell to Zambian employees of ZCCM and therefore, that the sale was intended for employees of ZCCM. 23. That according to the said Rules, those who were eligible to purchase ZCCM houses were confirmed Zambian employees, meaning that the sitting tenant had to be a ZCCM employee at the time of sale. He stated that a letter of offer had not been given to the appellant to purchase the flat and that the offer letter that J12 was written to the deceased had never been retracted. It was his evidence that the deceased was not a sitting tenant of the flat in issue at the time of sale and that a house where there is a sitting tenant could be sold to another person who is not a sitting tenant. 24. The witness stated that the Presidential directive of 2000 never superseded the 1997 ZCCM Rules governing the sale houses and that on the basis of the Rules, the house belonged to the 2nd respondent. He testified that the 2nd respondent’s rules stated that its employees must benefit first from the sale, hence the sale of this flat to the deceased. That according to their records, the appellant was not an employee of the 2nd respondent at the time the sale of houses commenced. Further, that the records showed that the 2nd respondent deducted money from the deceased’s terminal benefits and that a contract of sale was signed by him meaning he accepted the offer. Consideration of the matter by the Learned High Court Judge and decision 25. The learned trial judge found that it was not in dispute that the J13 appellant worked for ZCCM from 1968 to 1986 and that she stayed in the flat as part of her conditions of service with Chimanga Changa, a company which was at one point a subsidiary of ZCCM but later detached from it. She also found that the appellant was not an employee of ZCCM as at April 1997 when ZCCM started selling its houses to its employees and in 1998 when the flat was offered to the deceased. That the deceased on the other hand was an employee of ZCCM, even though he was not staying in the flat. 26. She opined that under the Rules Governing the Sale of ZCCM Houses, in particular, clause 2(i), a “sitting tenant” refers to an employee of ZCCM in service at the time the sale of ZCCM houses commenced. She reasoned that the appellant, having accepted, and the Court having found, that the appellant was at the material time neither an employee of ZCCM nor a sitting tenant, she did not and still does not qualify to purchase a ZCCM house as per the said Rules. 27. The learned trial judge further found that the tenant of ZCCM in the present case was Chimanga Changa and not the appellant. J14 She added that the appellant herself stated in her evidence in chief that in 1995, Chimanga Changa was removed from being a subsidiary of ZCCM and returned to its original owners, the Mahtani Group of Companies. She concluded, therefore, that the appellant was neither an employee of ZCCM nor a sitting tenant but a mere licensee who had no legal right to purchase the flat. 28. She accordingly dismissed the appellant’s claim with costs and ordered that she gives up vacant possession of the flat to the estate of the deceased within 30 days from the date of the judgment. Further, that since the appellant had not been paying rent from 2006 when she stopped working for Chimanga Changa, the learned trial judge ordered, as prayed in the counterclaim, that she pays the 1st respondent all the unpaid rent, from the date Chimanga Changa stopped paying rent for her until she vacates the flat, with interest at the prevailing bank of Zambia lending rate. The grounds of appeal to this Court 29. Being dissatisfied with the lower court’s decision, the appellant has advanced five grounds couched as follows: J15 1. The lower Court erred in law and fact by not considering the fact that I have been a sitting tenant of Flat No.33 for over or more than 28 years now since 30th April 1987. 2. The Court below erred in law and fact by failing to consider that I used to work for Chimanga Changa Milling Division under Mulungushi Investments Limited which was a subsidiary of ZCCM Investments Holdings Plc from 1987 to 1st December, 1995. 3. The lower Court erred by not considering the fact that I was a sitting tenant since then to date and at the time the houses were being offered to sitting tenants and during the Presidential Pronouncement concerning the same. 4. The Court below erred by not [taking] into consideration that the late Mr. Edwin M. Mulungu bought a house in Lusaka, 14 Chudleigh where he was a sitting tenant which belonged to Lenco as per evidence after a Presidential Pronouncement as the rules of selling Houses were overtaken by the Presidential directives. 5. The Court below erred in law and fact when it made a finding in favour of the 1st Defendant based on the fact that the Appellant had failed to provide evidence forgetting that Dr. Lembalemba of Ndola Central Hospital bought Flat No.34 Mukuba Flat and Vidah Mwendafilumba bought House No. E 76 in Chililabombwe. The arguments presented by the parties and decision by the Court 30. At the hearing, the appellant informed the court that her lawyer had withdrawn from representing her. She stated that she was going to represent herself. All the parties filed heads of argument J16 on which they entirely relied. In support of grounds one, two and three, which were argued together, the appellant submitted that the learned trial judge did not direct her mind to the correct definition of a sitting tenant. She referred us to the case of Zambia Consolidated Copper Mines Limited v Richard Kangwa and Others1 where, she contended, the court defined sitting tenant as “persons in occupation and residence.” She argued that she lived in the flat in dispute for over 27 years and during this period, utility bills were issued in her name. She added that she worked for the 2nd respondent from 1968 - 1987 and later worked for Chimanga Changa which was a subsidiary of ZCCM from 1987 to 1st December 1995 until her retirement in 2005. That Chimanga Changa was delinked from ZCCM three months before commencement of the sale of the 2nd respondent’s houses. In this regard, she submitted that she should have been given the first option to purchase the flat in dispute. 31. Reliance was also placed on the case of Zambia Consolidated Copper Mines Limited v Eddie Katalayi, Max Chilongo and Another2 where, according to her, the Court said that it would J17 have adopted the moral arguments of the respondents had it not been that the purchaser of the flat in dispute was an innocent purchaser for value and who had no reason to suspect that there was an adverse claim on the property in issue. The appellant specifically referred us to page 30 of that judgment where this Court stated that: “However, the legal position, as we see it, is that it was not possible without proper basis to ignore the rights of Kangali who was an innocent purchaser for value and who had no reason to suspect that there was an adverse claim. There would be no justification to inflict injustice on the third party in the name of justice for the appellant”. 32. She submitted that the respondents in that case were former ZCCM employees and members of the bowling club that was desirous of purchasing the house in dispute but the 2nd respondent did not raise the issue of them not being employees of ZCCM at the time of sale of the said property. It was, therefore, her contention that the issue of the appellant not being an employee of the 2nd respondent or its subsidiary should not be a disqualification for the appellant to be offered the house. J18 33. According to the appellant, the principles in the Eddie Katalayi case were applicable to the present case as the deceased was fully aware of the fact that there was an employee of Chimanga Changa, which was a subsidiary of ZCCM, in the flat and being an employee of ZCCM, he ought to have known that first priority ought to be given to the sitting tenant. 34. The appellant accordingly submitted that this was a good case in which the court can uphold the appellant’s moral arguments as the deceased was not an innocent purchaser for value because he knew that the flat was occupied by someone. That moreover, the Presidential pronouncement of 1997 on the sale of government houses to sitting tenants had already been made. He argued that if the court does not order ZCCM to offer the appellant the flat in dispute or any alternative house, there will be untold unfairness as the appellant will become a destitute. To support this contention, she cited the case of Andrew Winter Chilanzi and Moses Chisha v ZCCM Investment Holdings Plc3, where this Court held as follows: J19 “Hence, his claim of untold unfairness does not arise as he took the risk of accepting the offer to purchase a different house from the one he was in occupation of.” 35. Applying this principle, the appellant submitted that in the present case, the deceased being an employee of ZCCM should not have accepted to purchase a house which he knew was occupied by someone else after having heard the 1997 Presidential pronouncement made in relation to the home ownership programme for citizens. 36. In arguing ground four, the appellant submitted that it was unfair for one person to benefit twice from the sale of parastatal houses as the sale was done to empower Zambians. She referred us to the case of Attorney General v Steven Luguru,4 where this court held that: “It is interesting to note that the cabinet circular disqualified a civil servant who was a sitting tenant and had benefited from the sale of Council houses to buy a Council house.” 37. She submitted that it was not in dispute that the deceased already benefitted from the sale of parastatal houses as the evidence on record showed that he purchased a house from LENCO which was J20 a parastatal. That therefore, it would be unfair to allow him to benefit twice from the sale of parastatal and/or government houses. She contended that the principle in the Steven Luguru4 case should be applied to the present case mutatis mutandis as the deceased already purchased a house from another parastatal and has been empowered to own real property. Further, that the deceased bought a house where he was not a sitting tenant while the sitting tenant has been denied a chance to be empowered to own real property as was the intention of the said Presidential pronouncement. The appellant, therefore, implored this court to allow this ground of appeal as injustice had been occasioned to the appellant by denying her the opportunity to purchase a house while the deceased has benefitted twice in the home empowerment scheme by buying two houses. 38. In ground five, the appellant submitted that the court should not have made a finding in favour of the 1st respondent based on the fact that the appellant failed to provide evidence. She referred us to the case of Josephine Kabwe v Dominic Kapasa,5 where this J21 court held as follows: “We take the view that it would have been proper for the learned judge to call for evidence from ZCCM in order to understand, for example, why the offer was allegedly withdrawn from the respondent who was the sitting tenant. This would have assisted her in determining if truly the respondent had a superior right.” 39. She, therefore, contended that had the court below called other tenants, whom the appellant said were sold the houses even if they were not ZCCM employees but just sitting tenants, this would have helped the court to reach a just and fair decision. According to counsel, the appellant was in person in the court below, thus, the court should have guided and advised the appellant to bring these people to court and give evidence to help the court adjudicate on the matter fairly. 40. It was also her argument that injustice was occasioned due to the court’s failure to inform the appellant to call these people she claimed bought houses even if they were not employees of ZCCM but were sitting tenants in the houses owned by ZCCM. She, therefore, urged us to uphold the appeal. 41. In response to ground one, Mr. Kawana, counsel for the 1st J22 respondent submitted that the appellant was not an employee of the 2nd respondent company as at April 1997 when it began to sell houses to its employees and in 1998 when the flat was offered to the deceased. That the deceased on the other hand, was at all material times an employee of the 2nd respondent, albeit not staying in the subject flat. He relied on the case of Frank Malichupa and others v Tanzania-Zambia Railway Authority6 in which this court held that: “The law is settled that for somebody to be eligible to purchase a house from GRZ and, or a parastatal body, that somebody has to be a sitting tenant and, at the same time either he or she is an employee not yet paid his or her terminal benefits.” 42. To buttress his argument, he referred us to clause 1 of the Rules Governing the Sale of ZCCM Houses to Zambian Employees (“the Rules”) which states that: “The objectives of these Rules are to ensure a smooth, transparent and equitable sale of Company Houses to Zambian employees of ZCCM.” 43. Counsel contended that these objectives, as far as the Rules are concerned, can be likened to a preamble in an Act and he cited J23 the case of Attorney General v H. R. H. Prince Ernest Augustus of Honover7 to support this argument, where it was held that: “When there is a preamble, it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore permissible to have recourse to it as an aid to construing the enacting provision.” 44. He then referred us to clause 2 of the Rules and submitted that the term “sitting tenant” in the context of this clause refers to an employee of ZCCM in service at the time of the sale or a former employee whose terminal benefits have not been paid. That this was supported by the evidence of James Kalipeni Tembo who testified on behalf of the 2nd respondent in the court below, and the appellant readily accepted in her testimony, the fact that she was not an employee of ZCCM at the material time. Counsel, accordingly, submitted that it would be a mistake to construe “sitting tenant” in general terms when the Rules provided otherwise. 45. In response to ground two, counsel submitted that the assertion that Chimanga Changa was a subsidiary of ZCCM from 1987 to 1995 does not help the appellant’s case as the relevant period in J24 so far as the present matter is concerned is 1997, when the 2nd respondent started selling its houses to its employees. He argued that the appellant readily acknowledged that she was neither a direct employee of ZCCM nor its subsidiaries at that time and she also admitted that Chimanga Changa was delinked from ZCCM three months before the sale began. 46. Mr. Kawana’s argument in response to ground three was that the expression “persons in occupation and residence” referred to in the Richard Kangwa1 case cited by the appellant actually referred to employees either of ZCCM or its subsidiaries. He dispelled the contention of it being a very elaborate definition of who a sitting tenant is as suggested by the appellant. 47. On the appellant not having been given the first option to purchase the flat on moral grounds, counsel contended that this was not a moral issue as the sale had rules governing it and on the basis of the same, the appellant did not qualify to purchase a ZCCM house. 48. As regards the deceased being fully aware that there was an employee of a subsidiary of ZCCM living in the flat, counsel J25 reiterated that Chimanga Changa ceased to be a subsidiary of ZCCM three months before the sale. Secondly, that going by the position that an employee could buy a ZCCM house even if he was not a sitting tenant, the argument that the deceased was not a bonafide purchaser for value could not be sustained. He argued that in the present case, the deceased was offered the flat by his employer, ZCCM and he was not privy to the relationship that subsisted between ZCCM and Chimanga Changa. Therefore, the issue of him having been expected to know that there was someone in the house is inconsequential, especially that the appellant was not even an employee of ZCCM at the material time. 49. Mr. Kawana also contended that the tenant was actually Chimanga Changa and not the appellant as the former was the one paying rent to ZCCM. Thus, if there was any sitting tenant to talk about as far as the flat was concerned, it would have to be Chimanga Changa. He, however, submitted that Chimanga Changa too would not qualify to purchase the property based on the criteria in the rules regulating the sale. 50. We were again referred to the Frank Malichupa6 case where it J26 was held that: “There was no law that compels an unwilling person to sell his property to a sitting tenant.” 51. Counsel submitted that even assuming that the appellant was a sitting tenant as contemplated in the Rules, she still could not compel ZCCM to sell her the flat if the latter was unwilling. 52. As to the Presidential pronouncement of 1997 on the sale of government houses to sitting tenants, counsel referred us to the case of Timothy Hamaundu Muuka Mudenda v Tobacco Board of Zambia8, where we held that: “We hold that in this case, although there may have been some political pronouncements, the legal position has always been that a licensee is not a sitting tenant at law and as such has no legal right to purchase the house he is living in except where there has been a firm offer and acceptance of that offer to purchase that house.” 53. Counsel, therefore, submitted that the appellant was a mere licensee in that Chimanga Changa was paying rent to ZCCM for her stay in the flat and that there has never been an offer of the flat to the appellant by the 2nd respondent. 54. In response to ground four, counsel submitted that the claim by J27 the appellant that the court below erred by not considering the fact that the deceased bought another house in Lusaka, thereby benefitting from the home ownership scheme was equally immaterial. He referred us to the appellant’s evidence in the record of appeal where, he contended, the appellant admitted not having known the capacity in which the deceased bought the Lusaka house. It was his contention that there was no evidence before the lower court showing the purported purchase or the capacity in which the deceased acquired the said house. That therefore, the appellant cannot claim that the deceased bought the house under the home ownership programme. As such, the argument that it is unfair for one person to benefit twice from the sale of parastatal houses is misplaced as it is unsupported by evidence. 55. Counsel submitted that the flat was offered to the deceased because he qualified to purchase it and that the appellant did not and does not qualify. He argued that it was possible to sell to a ZCCM employee not in occupation as the idea was to benefit J28 ZCCM employees. He called in aid the case of Beatrice Muimui v Sylvia Chanda9, where we held that: “In the present case, the 1st Defendant who was an employee of ZCCM was better placed even though he was not a sitting tenant rather than the plaintiff who was no longer an employee of ZCCM...” 56. In response to ground five, counsel submitted that the court below was a court of record which determined matters based on the evidence before it. Therefore, it could not be faulted for disagreeing with the appellant on an aspect where she failed to adduce evidence. He contended that the appellant claimed before the lower court that some named individuals bought some named ZCCM houses despite not being employees of ZCCM. However, she did not adduce evidence or call any witnesses to buttress her claim. That even assuming that the named individuals bought the named flats as alleged, the appellant could not say the capacity in which they bought them as they may have bought them from ZCCM employees after the latter purchased them from their employer. According to counsel, the court below rightly refrained from giving much weight to that part of the appellant’s evidence. J29 57. He contended that the fact that the appellant was unrepresented was a non-issue as she was not stopped from retaining counsel. It was his submission that the principle that he who alleges must prove applies to every litigant, represented or otherwise and it was not the court’s duty to start calling witnesses. 58. Counsel, accordingly urged us to dismiss the appeal in its entirety and uphold the judgment of the court below. 59. In response to the appellant’s heads of argument, Mrs. Ndovi, legal counsel for the 2nd respondent submitted on grounds one, two and three that the trial court was on firm ground when, in arriving at the decision in favour of the 1st respondent, it refused to consider that the appellant had been in occupation of the flat since 1987. The position of this court is settled regarding whether or not a person qualified to purchase a ZCCM house (under the then government empowerment policy) by reason only of being in occupation of the same. 60. We were referred to the Beatrice Muimui9 case, where this court held that: “We do not subscribe to the argument that being a sitting tenant J30 is the sole criterion in purchasing of the government or quasi- governmental houses in the current policy of empowering employees. We take judicial notice that the other important criterion is that the potential purchaser had to be an employee of the government or quasi-government organization.” 61. This position was confirmed in the cases of Simon Lwando and Other Teachers v Zambia Consolidated Copper Mines Limited10 and the Richard Kangwa1 case. 62. Counsel submitted that the rationale behind selling the flat to the deceased in the present case, as opposed to the appellant, is no different from the circumstances that were obtaining in the three cases cited above; that the government allowed ZCCM to sell some of its properties to its employees at the time, including the deceased and not the appellant, in order to reduce its bill on the terminal benefits that it owed to its employees at the time it was being privatised. 63. She argued that the undisputed evidence on record shows that the sale of ZCCM houses began in 1997. The appellant’s evidence discloses that she was employed by Chimanga Changa under Mulungushi Investments which operated under ZCCM from 1987 to 1st December 1995. The appellant was, therefore, not an J31 employee of ZCCM at the time that the sale of ZCCM houses began in 1997. Save that the appellant was in occupation of the ZCCM flat at the time, there was no connection between herself and ZCCM. 64. Counsel also contended that the appellant’s evidence discloses that she was never offered the flat and that even when she applied to purchase the same, the application was denied for the reason that she was not a ZCCM employee. Further, that the appellant’s testimony was that even an application which was made by the Chief Accountant of Chimanga Changa on her behalf was rejected for the same reason. 65. That on the authority of the Beatrice Muimui9, the appellant did not qualify to purchase the ZCCM flat when the sale of houses began as there was no connection between herself and ZCCM at the time. 66. Moreover, that the appellant was not owed terminal benefits by ZCCM in line with another dimension of the qualification criteria which was set out in the Richard Kangwa1 and Simon Lwando10 cases. According to counsel, the court below was, therefore, on J32 firm ground in refusing to consider the time that the appellant had been in occupation of the flat as being a material consideration in this case. 67. Counsel submitted that the appellant was a mere licensee as there was no tenancy agreement executed between herself and ZCCM relating to the flat. 68. Reliance was placed on a passage in the Timothy Mudenda8 judgment earlier quoted by counsel for the 1st respondent in paragraph 52 above. Counsel then contended that the record discloses that the appellant has never been offered the flat for purchase. That the 1st respondent’s undisputed evidence is that in or about 1998, the deceased informed Chimanga Changa that the flat had been sold to him. The evidence is also undisputed that Chimanga Changa paid rentals relating to the flat on behalf of its employee (the appellant). 69. Mrs. Ndovi further submitted that the appellant’s argument that she had a right of first refusal to purchase the house cannot stand as she was never a tenant of ZCCM. That her employer, Chimanga Changa was the tenant is confirmed by the fact that J33 the tenancy agreement continued between the deceased and the said company after ZCCM sold the flat to the deceased; and it continued paying rentals to the deceased from 1998 until 2005. 70. The trial court, counsel contended, was therefore, on firm ground when it held that the appellant was not entitled to purchase the flat. 71. In response to the appellant’s arguments on grounds four and five, counsel referred us to the case of Attorney General v Marcus Kampumba Achiume11, where we stated that findings of fact made by a trial court will not be reversed on appeal unless such findings were perverse or made in the absence of relevant evidence; or that the facts were misapprehended, or were such that no reasonable court applying its mind to the evidence correctly could have possibly arrived at the disputed decision. According to counsel, this is not a proper case to vary findings of fact as the court correctly applied its mind to it. 72. Mrs. Ndovi also submitted that the appellant failed to discharge an evidential burden that ZCCM had sold houses to persons that were mere tenants in occupation but not employed by ZCCM. The J34 appellant also failed to establish that any alternative house purchased by the deceased had been purchased under the government employee empowerment scheme subject to which ZCCM houses were sold in 1997. 73. Counsel contended that at pages J12, lines 13 - 22 of the judgment appealed against, the 1st respondent stated that the deceased had purchased a house from LENCO and not ZCCM. That the issue in this matter relates to housing stock that was sold by ZCCM in 1997 following the Presidential directive. According to Mrs. Ndovi, a person could not be disqualified for purchasing a property using an in-house company scheme which is separate and distinct from the 1997 sale of ZCCM houses. 74. Counsel submitted that it was, therefore, misleading for the appellant to rely on the Steven Luguru4 case. That unlike in the said case, the evidence in the present case shows that the deceased had purchased a house from LENCO whilst he was employed by ZCCM and the two companies were not the same entity. J35 75. It cannot be argued therefore, counsel contended, that the deceased benefited from the sale of ZCCM houses twice in contravention of the Presidential directive. That the trial court apprehended the facts of the case and applied its mind to the same correctly. 76. Mrs. Ndovi further submitted that it was immaterial whether or not other witnesses had been called either by the appellant or the court, to show that they had purchased ZCCM houses. That according to the evidence tendered in the lower court, the appellant failed to establish a clear right to purchase the house in issue, in priority to the 1st respondent. 77. Counsel submitted that the trial court was on firm ground in determining that the 1st respondent was the rightful owner of the flat. That the appellant has failed to establish sufficient grounds upon which the decision of the trial court should be set aside. We were accordingly urged to dismiss this appeal with costs. 78. We have considered the arguments advanced by the appellant and counsel for the respective parties, the record of appeal and the judgment appealed against. J36 79. Grounds one, two and three will be determined together as they are interrelated. The appellant contends that the lower court erred in law and fact by not considering that she had been a sitting tenant of the flat for 28 years and was such tenant at the time the 2nd respondent’s houses were being offered to other tenants and during the Presidential pronouncement on the home ownership programme. Further, that the lower court failed to consider the fact that she worked for a subsidiary of the 2nd respondent from 1987 to 1995. 80. At the heart of these grounds of appeal is the allegation that the appellant should have been given the first option to purchase the flat before the 2nd respondent could consider offering it to the deceased or any other person. As we see it, the question as to whether the appellant was entitled to the first option of purchase hinges on whether or not she met the eligibility criteria under the Rules. Clause 2 of these Rules provides that: “All confirmed Zambian ZCCM employees in service shall be eligible to purchase Company Houses subject to the following provisions: i. Priority shall be given to sitting tenants; J37 ii. Employees occupying institutional houses or substandard houses or are un-housed will be offered any available house across the industry; iii. Employees who have retired, have been declared redundant, or have been medically discharged, but have not been paid their terminal benefits at the time the scheme is introduced shall qualify; (Emphasis added) 81. From the foregoing excerpt, it is clear that priority was to be given to sitting tenants who were employees of the 2nd respondent in service at the time of sale. The undisputed evidence on record is that 2nd respondent began selling its houses in 1997 and that the appellant was not an employee of the 2nd respondent or any of its subsidiaries at that time. On her own admission, the appellant stated that Chimanga Changa, the company she used to work for, was the tenant of the flat as it was paying rentals to the 2nd respondent for her by virtue of her employment with the said company. She also admitted that Chimanga Changa ceased to be a subsidiary of the 2nd respondent sometime in 1995. 82. The appellant, however, submits that she ought to have been given the first option to purchase the flat as she worked for the 2nd respondent from 1968 to 1987 and later, for Chimanga J38 Changa which was a subsidiary of the 2nd respondent from 1987 to 1995 until her retirement in 2005. 83. This argument is flawed because, as rightly pointed out by counsel for the respondents, the relevant period in so far as the issue of eligibility to purchase the flat is concerned is 1997 when the 2nd respondent started selling its houses to its employees. In our view, the assertion that the appellant was entitled to the first option to purchase the flat does not arise as she did not satisfy the definition of sitting tenant as envisaged under clause 2 of the Rules governing the sale of ZCCM houses. 84. As alluded to above, the appellant was not an employee of the 2nd respondent at the time it was offered to the deceased, neither was her employer at the time, Chimanga Changa, a subsidiary of ZCCM. Secondly, at no time did she ever pay rent towards the flat to the 2nd respondent so as to acquire the status of a tenant. The term “sitting tenant”, in so far as clause 2 of the Rules is concerned, connotes that one is not only in occupation and residence of the premises but also that one is paying rent in respect of the said premises. On the evidence before the trial court J39 and the various authorities cited by the respondents’ counsel, the appellant does not satisfy the definition of “sitting tenant” so as to have been entitled to the first option to purchase the flat in question. 85. For the above reasons, we find that grounds one, two and three have no merit and must inevitably fail. 86. We now turn to ground four, in which the appellant attacks the court below for failing to consider that the deceased already benefitted from the sale of institutional houses. The appellant contends that the deceased had been a sitting tenant of House No. 14 Chudleigh, Lusaka belonging to LENCO, a parastatal, which said property he later purchased. That, therefore, the appellant had been denied the opportunity of purchasing a house while the deceased had benefitted twice in the home empowerment scheme. 87. A perusal of the record will, however, reveal that the appellant did not adduce any evidence before the court below to show that the alleged purchase did in fact take place. Further, and as aptly argued by counsel for the respondents there was no evidence J40 before the lower court to show the circumstances in which the deceased acquired the Lusaka house. 88. On that score, we cannot fault the trial court for not considering the deceased’s alleged purchase of another institutional house as insufficient evidence had been led by the appellant to support this contention. We, accordingly, find no merit in the fourth ground of appeal as well. 89. In ground five, the appellant’s grievance is that the court below erred when it found in favour of the 1st respondent based on the fact that the appellant failed to provide evidence. The appellant contends that the court below failed to take into consideration the fact that she was appearing in person and therefore, the court should have called the persons whom she claimed were sold houses by the 2nd respondent although they were not its employees as this would have helped the court to reach a just and fair decision. 90. It is trite law that in any matter before a court, he who alleges must prove the allegations. Hence, the person initiating court proceedings must generally speaking prove their case in order to J41 succeed in their claim. In these proceedings, the appellant alleged that certain persons purchased houses from the 2nd respondent despite not being its employees. The onus was, therefore, on the appellant to prove that the alleged purchases took place. The appellant had the option of calling witnesses to testify in support of her claims but chose not to do so. She cannot now be heard to say that the court below ought to have called witnesses to testify on her behalf as it is not the duty of courts to assist parties to prove their claims. 91. Thus, in the case of Bank of Tokyo Ltd v Karoon and Another12 it was held that: “Moreover, it is of the very essence of our adversarial system that the court decides the dispute on the material placed before the court, it being for the parties and not for the court to decide of what that material should consist. Hence the well-established principle that in civil litigation the judge is not entitled, without the consent of the parties, to call a witness, although he may have every reason to believe that such a witness might well enable him the better to reach a just decision.” 92. Further, in the case of Jones v National Coal Board13, Lord Denning had this to say: “A judge is not allowed in a civil dispute to call a witness whom J42 he thinks might throw light on the facts. He must rest content with the witnesses called by the parties.” 93. And in our own case of Priscilla Mwenya Kamanga v Attorney General and Peter Ng’andu Magande14, we held that: “The High Court Act has no provision for calling of witnesses by the court.” 94. It is clear from the foregoing case law that the role of the court is to decide cases on the basis of evidence adduced by the parties and that a judge has no right to call a witness without the consent of the parties. We agree with counsel for the 1st respondent that the fact the appellant was unrepresented was a non-issue as there was nothing precluding her from retaining counsel. We wish to add that the mere fact that a litigant appears in person does not entail that such a litigant should be afforded preferential treatment in so far as the rules of procedure are concerned. 95. We, however, have no doubt that even if the evidence of the purported other tenants alleged to have bought the ZCCM flats had been adduced, it would not have altered the trial judge’s decision because as demonstrated above, the appellant did not qualify to purchase the flat in question. In the circumstances, we * * J43 find no basis to fault the lower court. Ground five consequently suffers the same fate as the other grounds. 96. In the final analysis, we have come to the inescapable conclusion that this appeal has no merit. It is accordingly dismissed with costs to the respondents, to be taxed in default of agreement. A. M. WOOD SUPRME COURT JUDGE C. KAJIMANGA SUPREME COURT JUDGE Ml MUSONDA, SC SUPREME COURT JUDGE