Rosemary Landu v Zambia Industrial and Mining Corporation Ltd ( In Liquidation) (Appeal 96 of 2000) [2001] ZMSC 149 (18 May 2001)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 96/2000 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ROSEMARY LANDU APPELLANT AND ZAMBIA INDUSTRIAL AND MINING COROPRATION LIMITED (IN LIQUIDATION) RESPODENT Coram: Chaila, Lewanika and Chibesakunda, JJS on 8th November 2000 and 18th May 2001 For the Appellant : Mr Joseph Chimembe of JMC and Associates For the Respondent: Mr R Mainza of Messrs Makala and Company JUDGEMENT Chibesakunda, JS delivered the Judgment of Court Acts to be referred to Section 13 of the High Court Act, Cap. 27. This is an appeal against the lower court’s judgment declaring that the appellant Rosemary LANDU is entitled to purchase Flat Number 11, Plot 2094 Nassaer Road, Lusaka, at the price to be suggested by the Respondents and to be accepted by the Appellant. The action was commenced on 15th November 1996. By the time of the High Court proceedings, the Appellant was in occupation of Flat No. 11, Plot 2094, Nasser Road, Lusaka. The Respondent Zambia, Zambia Industrial and Mining Corporation Limited (Z1MCO), is now in liquidation and therefore anxious to have this flat sold. J2 This case arose out of the following circumstances. The Respondent being under liquidation decided to sell this property. As a consequence Z1MC0, as a liquidators wrote the Appellant on 1 llh January 1996. The letter states:- “Re: SALE OF PROPERTY SITUATE ON PLOT NO. 2094, FLAT 1 i KALUWE FLATS, NASSER ROAD, LUSAKA We wish to inform you that the above-mentioned property has been offered for sale. The property is valued at K19,500,000. If you wish to purchase this property, please make offer within 14 days of the date of this letter, otherwise this invitation will lapse and the property will be offered to another purchaser.” The Appellant in reply responded on 25th January 1996 as thus:- “re: SALE OF PROPERTY SITUATE ON PLOT NO. 2094 FLAT 11 - KATUWE FLATS - NASSER ROAD, LUSAKA I wish to acknowledge receipt of your letter dated 1 Ith January 1996 informing me that the property cited in the caption has been valued at KI9,500,000 and been offered for sale and if 1 wish to purchase it, I should make an offer for it. I certainly wish to purchase the property and only wonder whether in the valuation of it, the cost of repairing the crack in the kitchen floor has been taken into account. I am reliably informed that the crack’s source is in the foundation itself. The kitchen of the flat immediately beneath flat 11 has a similar crack running parallel to the one in the kitchen of flat 11. Major repairs will therefore need to be made by me if it is sold in its present state. Naturally I will have to spend much more on the property and would wish that to be reflected in the valuation of the property. Your favourable consideration of this offer will be highly appreciated.” Respondent felt and rightly so that the above response was not good enough and so on 12th February 1996 wrote a second letter. This was the letter: “Further to our letter of 25,h January, 1995 in respect of the above, please be informed that the date for acceptance of bids for the above property is 17.00 hours 23ld February, 1996. J3 Signed S. B MUSONDA JOINT LIQUIDATOR” Respondent’s reply soon followed: “I acknowledge with thanks receipt of your letter dated 12 February 1996. My offer still stands. As per your suggestion that as a tenant I form a tenancy association or company with the other tenants to bid as a group at a market price or K310.0 Million, I would point you to the Act of Parliament under which you purport to act which does not provide for the kind of suggestion you are putting across. You must be aware that the other tenants have taken the matter to Court and until the Court directs otherwise, I suggest that you respond to my letter of offer dated 25th January 1996. Yours faithfully, R M LANDU” According to the Appellant she was offered in the letter of 25th January 1996 to buy this flat at a price of KI 9,500,000.00. She did not accept this offer. The Respondent deemed the matter closed. What followed is that a Mr Tembwe, who is not a party to these proceedings at the High Court was then offered to purchase this flat in question at K 13,500,000.00. Mr Tembwe accepted this offer, resulting in him paying K 1,500,000.00 as part payment of the purchase price. No further payments were made due to litigation. The Appellant felt and still feels that she was entitled to purchase the Flat as a former employee subject to a contract being concluded between herself and the Respondent and that the Respondent had to make an offer to her on the Flat in question in line with Government policy on the sale of houses. Seeing that the Respondent sold the Flat to Mr Tembwe, the Flat in question the Appellant sued the Respondent, seeking a declaration to the effect that she was entitled to purchase the Flat in question. The High Court invoking the law and equity as stipulated by Section 13 of the High Court Act, J4 made that declaration but did not go as far as dictating the purchase price to be offered to the Appellant. She, therefore, appealed to us acknowledging the judgment of the learned trial Judge. We have looked at the evidence before the lower court and the judgment of the learned trial Judge. We are surprised that the Appellant has appealed to this court as we totally endorse the views of the learned trial Judge. We hold the view that there was no contract between the Appellant and the Respondent as there was no offer made by the Appellant and so there were no acceptance of the offer and no consideration, which are basic requirements in a contractual relationship. The lower court went on however rightly and properly in our view to invoke the principle of equity and law as provided in Section 13 of the High Court Act, Cap. 27. The High Court made a declaratory judgment as already indicated. The court also in applying equity invited the parties to once again negotiate and asked the Appellant to make an offer at the purchase price of K.13,500,000.00, the price which was offered to Mr Tembwe. We can do no more than that. We confirm the declaratory judgment. We ask the Appellant to make a positive offer and that the Respondents to accept that offer and to give to the Appellant a period of at least four (4) months in which to meet this contractual obligation. Failure to do so would only result in the offer lapsing and thus making the property available to other members of public. We order no costs to be paid. M S Chaila SUPREME COURT JUDGE D M Lewanika SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE