Ronald Musheke Iliamupu v Council of the University of Zambia (Appeal 62 of 2009) [2011] ZMSC 30 (17 June 2011)

JI IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 62 OF 2009 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: RONALD MUSHEKE ILIAMUPU AND COUNCIL OF THE UNIVERSITY OF ZAMBIA APPELLANT RESPONDENT CORAM: MAMBILIMA, DCJ, WANKI AND MUYOVWE, JJS On 8th February, 2011 and 17th June, 2011 For the Appellant: Mr. N. M. Simeza, Counsel of Simeza, Sangwa and Company For the Respondent: Mrs. L. N. Ngoma, Counsel of In house JUDGMENT WANKI, JS, delivered the judgment of the Court. Cases referred to: 1. Lusaka City Council and National Airports Corporation -Vs- Grace Mwamba and 4 Others, (1999) ZLR 97. 2. R. -Vs- Secretary of State for Transport, Ex-parte Greater London Council, [1985] 3 ALL ER 300. 3. Rowland -Vs- Environmental Agency, (2003) 1 ALL ER 625. Statutes referred to: 1. University Act Number 11 of 1999. J2 The Appellant Ronald Musheke Iliamupu filed an appeal against the judgment of the High Court sitting at Lusaka, passed on the 20th August, 2008 in favour of the Council of the University of Zambia, the Respondent. The Appellant, then Plaintiff, commenced an action against the Respondent, then Defendant, by way of a Writ of Summons claiming for:- (i) (ii) A declaration that he is entitled to be offered to purchase Plot 294, Kambule Road, Mongu as a sitting tenant in terms of the Defendant’s Home Ownership Scheme. An order that the Defendant offers for sale Plot 294, Kambule Road, Mongu to the Plaintiff on terms provided under the Defendant’s Home Ownership Scheme. (iii) Any other relief the Court may deem fit. (iv) Costs. In his evidence, the Appellant testified that he had been an occupant of the subject house belonging to the Respondent since 1st January, 1999. Following the initiation by the Government of the Republic of Zambia for the sale of its pool houses to sitting tenants, in June, 1996 it provided a Handbook governing the sale of its pool houses. The initiation was meant to empower Civil Servants with house ownership. After that the University of Zambia also produced a similar handbook regulating the sale of its stock of houses. The Appellant further testified that as he was eligible to purchase the house he occupied as a sitting tenant in 2001 he applied to purchase the subject house. The application was J3 however, unsuccessful on the ground that the house is an Institutional house. The Appellant further testified that though the Defendant’s Handbook refers to Institutional houses, the house which he occupies is in an ordinary area, detached from the University area. He gave an example of the Chipata house which is similarly located and which he at one time occupied but was sold to an outsider in 1995. That after he retired, he was in bad faith offered a plot just because he was entitled to a loan. It was for the reasons stated that he made the claim. The Defendant did not call any witness. It relied on its defence. The trial Court after analyzing the pleadings and the evidence adduced before it declined the Plaintiffs claim. The Appellant has in his Memorandum of Appeal filed two grounds of appeal:- 1. That the learned trial Judge misdirected himself in law and in fact in holding that the Provincial court house occupied by the Appellant was excluded from the Respondent’s housing scheme despite having disagreed with the Respondent’s contention that the Respondent could only sell the housing unit in issue after approval from the Minister. 2. The learned trial Judge erred in law when he failed to take into account the Appellant’s legitimate expectations to be sold the housing unit in question after notable instances were cited to the Court where similar housing units had been offered and sold to other sitting tenants or employees of the Respondent. The Appellant further filed the Appellant’s heads of argument. The Respondent also filed the Respondent’s heads of arguments. It was argued in the Appellant’s heads of argument that in his evidence, the Appellant told the Court that he applied for the * J4 purchase of Plot 294, Kambule Road, Mongu pursuant to the objectives of the Government under its Civil Service Home Ownership Scheme as well as the University of Zambia Housing Scheme implemented in 1997. The Appellant’s argued that it is worth noting that the preface to the Respondent’s Housing Scheme makes admission that much of what is contained in its own Housing Scheme came from the Government’s Civil Service Housing Scheme. In relation to the Respondent’s contention in paragraph 10 of its Defence, it was submitted that the trial Court found as a fact that the Home Ownership Scheme guidelines for the University did not require Ministerial approval before the Respondent could offer and sell the house in question to the Appellant. It follows that if no Ministerial approval was required under the guidelines offered by the Scheme then, the house could be offered to the Appellant so long as he met the eligibility criteria. The Respondent admitted through paragraphs 9 and 10 of its defence that the Appellant was indeed eligible to apply for and be offered a house under the Scheme for the sale of pool houses. In essence, the Appellant had qualified to purchase the house in question as a sitting tenant. It was further argued that the trial Court’s finding that the house occupied by the Plaintiff was excluded from the Scheme was a misdirection. This finding completely ignored the Appellant’s unchallenged testimony that the housing unit in question was in an ordinary area within Mongu, and outside or detached from the University premises. I J5 To buttress this argument, the Court was invited to consider the definition of Institutional houses in both the Government’s Handbook on the Civil Service Home Ownership Scheme as well as the Respondent’s Home Ownership Scheme. It was submitted that from the provisions, it is worth noting that both the Government of the Republic of Zambia as well as the Respondent herein had specifically intended that all houses that were within the premises of the institution in question would strictly be termed as Institutional houses not up for sale to sitting tenants. The Provincial court house occupied by the Appellant is not attached to the Respondent’s premises in Mongu but is in an ordinaiy residential area and therefore could not have been classified as an institutional house incapable of being sold to the Appellant. In support, the Court was referred to its decision in the case of LUSAKA CITY COUNCIL AND NATIONAL AIRPORTS CORPORATION -VS- GRACE MWAMBA AND 4 OTHERS. U) It was argued in support of ground two that the fact of the two specific instances where the Respondent sold similar houses to its employees in Nyimba and Lusaka was admitted by the Respondent in paragraph 13 of its pleading. It was submitted that there having been two similar houses in provincial centres sold to other employees of the University, the Appellant had a legitimate expectation that Plot 294, Kambule Road, Mongu was to be sold to him. The Appellant did not understand why he has been discriminated by the Respondent. J6 In support, the Court was referred to the case of R. -VS- SECRETARY OF STATE FOR TRANSPORT, EX-PARTE GREATER LONDON COUNCIL,^ in which the Court remarked that legitimate expectation may arise either from an express promise given on behalf of a public body or from the existence of a regular practice which the claimant can reasonably expect to continue. The Court was further referred to the case of ROWLAND -VS- ENVIRONMENTAL AGENCY, 0) in which the Court stated “The categories of legitimate expectation are not closed; it may be procedural or substantive. For an expectation to be legitimate, the party seeking to invoke it must show (among other things) that it lay within the powers of the authority both to make the representation and to fulfill it. If the expectation relates to the existence of a lawful discretion, for example, to admit late claims; such an expectation may bind the public body, to exercise its discretion in accordance with that expectation.” It was argued that from the foregoing authorities, the Lower Court ought to have taken into account, the fact that the Respondent had developed a practice of selling its housing units similar to that occupied by the Appellant to its sitting tenants who were Lecturers/Tutors. Further, the Respondent since 1997 adopted the Government policy of selling off its housing units to sitting tenants and the subsequent sale of a Provincial house in Lusaka created no more than a legitimate expectation in the Appellant that he too would be offered the unit he was occupying in Mongu. Moreover, it cannot be doubted that the Respondent does indeed have power to sell housing units such as the one occupied ft J7 by the Appellant, since it was outside the University premises and therefore non-institutional. The fact that the Respondent has this power which can be fulfilled by it was sufficient to create the necessary expectation on the part of the Appellant that he would also be offered the house he occupied as was the case with many other fellow employees. In conclusion, it was submitted that this is a proper case where this Court ought to reverse the decision of the Lower Court and allow the appeal with costs. In his brief submission, augmenting the Appellant’s heads of argument Mr. Simeza as a matter of emphasis, that there is V uncontroverted evidence that even if the property in question appears to have been made an institutional house, a similar property in Lusaka was sold. The only explanation is that the sale of the Lusaka property was approved by the Minister. In this case, the Judge in the Lower Court found that there was no need for Ministerial approval, Mr. Simeza submitted that there was no evidence that the Respondent sought Ministerial approval and that it was refused. His contention is that the Appellant was discriminated against. In response the Respondent, in its heads of argument, started by pointing out that the parties did not file submissions in the Court below. Therefore, the Court below relied heavily on the pleadings. The appeal presents an opportunity for parties to expand the law as it relates to their respective positions. t J8 In response to ground one, the Respondent invited the Court to consider the provisions of Section 19 of the University Act, which read:- “19(1): All funds, assets and property, movable and immovable of a public University, shall be utilized by the Council in accordance with this Act in such a manner and for such purposes as shall promote the best interest of the University. A Council may, after approval of the Minister and subject to such conditions, if any, as the Minister may impose charge or dispose of the immovable property of a University.” It was argued that the import of this provision is that the Council of a public University cannot dispose of immovable property such as real estate without Ministerial approval. Therefore, although Government issued a blanket directive on home empowerment, all entities concerned were expected to act in accordance with laws that governed them at the time. In the case of the Respondent, as indicated in its defence, prior approval to dispose of the housing units subject to the housing scheme had to be obtained from the Minister by the Respondent. It was further argued that there is no requirement under the law for the Respondent to inform third parties that it has obtained the said authority which explains the absence of such information in the home ownership scheme as found by the learned trial Judge. It was further argued that when the Respondent pleaded in its defence that the house in contention was not approved by the Minister to be earmarked for sale under the home ownership scheme, the same meant that the said house was not among the « J9 houses that the Respondent requested for approval to dispose. The Respondent excepted the said house from sale under the scheme in order to provide clarity on what was up for sale and what was not. It was submitted that the law governing the Respondent requires it to obtain Ministerial approval to dispose of its immovable assets and the Court is persuaded to hold as such. With regard to the Appellant's contention that the Provincial court house being in issue should have been sold to the Appellant under the UNZA Home Ownership Scheme, they submitted that the same is misconceived as institutional houses are explicitly excluded from the scheme. It was further submitted that the Appellant has attempted to mislead this Court by conveniently omitting to indicate the relevance of appendix II and III which particularizes the excepted housing units. It was finally submitted that in as much as the Appellant may have satisfied the eligibility conditions for purchase of a house under the scheme, the house, he claims is not a subject of offer for sale. In response to ground two, it was argued that the Appellant’s reliance on paragraph 13 of the Defence is misconstrued because, as correctly stated by the trial Court, Chipata house which the Appellant once occupied was sold prior to the introduction of the Home Ownership Scheme and the Appellant admitted that fact. It is needless to refer to the said house. J10 It was further argued that the principles laid down in the authorities cited by the Appellant being R. -VS- SECRETARY OF S TA TE FOR TRANSPOR T EX-PAR TE GREA TER LONDON COUNCIL, (2). are sound. However, these cases are distinguished from the case in casu in that there was no express promise on the part of the Respondent to sell the house in issue to the Appellant. In fact, the Respondent argued that, what is abundantly clear is the express exemption of the said property from the sale under the scheme. Secondly, the Appellant has not satisfied the condition of legitimacy of expectation required by law in that the Respondent did not make any representation that it has authority to sell the house to the Appellant. Therefore, there is nothing binding the Respondent into offering the said property to the Appellant. It was further submitted that there was no legitimate expectation on the part of the Appellant to be sold the house in issue by the Respondent. It was finally submitted that it was their humble prayer that in view of the above arguments the Court dismisses the appeal for want of merits with costs to the Respondent. In her brief submissions augmenting the Respondent’s heads of argument, Mrs. Mtonga Ngoma submitted that the Lusaka house referred to was disposed of before the housing scheme was put in place. She did not therefore see the relevance. Further, learned Counsel referred the Court to Section 19 of the University Act as to the Ministerial approval. Jll The learned Counsel further submitted that there is no legal requirement for the Respondent to indicate to its employees that it has sought Ministerial approval. Whereas the Appellant could have qualified, the subject house was expressly excluded from the scheme. They therefore, prayed that the appeal be dismissed for want of merits. In reply, Mr. Simeza submitted that the argument that the Lusaka property was disposed of before the scheme was not supported by any evidence. The Respondent did not call any evidence they entirely relied on its pleading. The Lusaka house was sold under the scheme. The only house that was not sold under the scheme was the Chipata house. There was no evidence to show that the house in Lusaka was sold following a Ministerial approval. There was also no evidence to show that there was Ministerial directive not to sell the subject house. They finally submitted that the appeal be allowed. We have examined the judgment appealed against, and considered the grounds of appeal, the heads of arguments and the submissions on behalf of the parties. In ground one, the Appellant has attacked the trial Court in holding that the Provincial court house occupied by the Appellant was excluded from the Respondent’s housing scheme despite having disagreed with the Respondent’s contention that the fl J12 Respondent could only sell the housing unit in issue after approval from the Minister. From its judgment the trial Court after considering the evidence adduced before it, found that specifically UNZA Provincial court houses under Section 1.2 of the Institutional houses under item 15 at page 47 of the Plaintiffs bundle are among the units excluded from the Scheme. That being so, the house the Plaintiff occupies in Mongu which he applied to purchase is excluded from the Scheme. The trial Court’s finding and holding was therefore supported by the evidence. We do not find any misdirection in law and fact on the part of the trial Court in the holding that the Provincial court house occupied by the Appellant was excluded from the Respondent’s housing scheme. Further, from the evidence, we have found that the Respondent’s contention that the Respondent could only sell the housing units in issue after approval from the Minister is within the provisions of the law as provided by Section 19 of the University Act. The fact that the trial Court disagreed with that contention has no effect on the Appellant’s application to purchase the subject house. In the circumstances, we have found no merit in ground one and we accordingly dismiss it. In ground two, the Appellant has attacked the trial Court for its failure to take into account the Appellant’s legitimate expectations to be sold the housing unit in question after notable t t J13 instances were cited to the Court where similar units had been ■ x •• ■ - offered and sold to their sitting tenants or employees of the Respondent. We have examined the judgment appealed against and considered the pleadings that were filed in the Lower Court. We have found that the issue of legitimate expectation was not brought before the trial Court and as such, it was not part of a the issues that were considered. There was no material before the trial Court on the basis of which it could have considered the issue. That notwithstanding, the learned Judge in the Court below found as fact that the house that the Appellant occupied was a Provincial court house and the Appendices that were before him showed that such houses were excluded from the Scheme. A legitimate expectation could not therefore arise. In the circumstances, we have found no merits in ground two. The appeal therefore fails. We award costs to the Respondent. I. C. Mambilima, DEPUTY CHIEF JUSTICE M. E. Wanki, E. N. C. Muyovwe, SUPREME COURT JUDGE SUPREME COURT JUDGE