Samantha Shulikwa Chikonka and Catherine Naambo (both suing as Administratix of the Estate of Sarah Naambo Chikonka) v Captain Mabvuto Phiri and Ors (APPEAL No. 005/2023) [2024] ZMCA 279 (29 October 2024)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL No. 005/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SAMANTHA SHULIKWA CHIKONKA and CATHERINE NAAMBO (both suing as Administratrix of the Estate of Sarah Naambo Chikonka) AND APPELLANT CAPTAIN MABVUTO PHIRI AND 173 OTHERS 1 ST RESPONDENT CONTRACT HAULAGE LIMITED THE ATTORNEY GENERAL MOHAMMED YOUSUF MUSA 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT Coram: Chashi, Makungu, and Sichinga, JJA on 18 September and 29 October, 2024 For the Appellant: Mr. C. Chilekwa of Messrs . C. C. Gabriel and Company For the 1st Respondent: No appearance For the 2 nd Respondent: No appearance For the 3rd Respondent: No appearance For the 4 th Respondent: Mr. M. J. Katolo of Messrs Milner and Paul Legal Practitioners JUDGMENT Sichinga JA, delivered the Judgment of the Court. Jl Cases referred to: 1. Craig v Kanssen (1943) KB 256 2. Molly Pelekamoyo Washington v New Plaza Enterprises Limited, CAZ Appeal No . 147 of 2021 3. Nkhata and Others v The Attorney-General (1966) Z. R. 124 4. Communications Authority of Zambia v Vodacom Zambia Limited, SCZ Judgment No. 21 of 2009 5. Examination Council of Zambia v Reliance Technology Limited, SCZ Appeal No. 194 of2010 6. Zambia Revenue Authority v Dorothy Mwanza and Others (201 OJ Z. R. Vol. 2, 181 7. Frank Mumba v Mulenga and Another, SCZ Appeal No. 6 of 2012 8. Wilheim Roman Buchman vAttorney General (1994) S. J. 76. 5 (S. C.) 9. London Ngoma and Others v LCM Company and Another, SCZ Appeal No. 91 of 1997 10. Morgan Naik v Simon David Burgess and 5 Others, CAZ Appeal No. 45 of 11. Timothy Hamaundu Muuka Mudenda v Tobacco Board Zambia, SCZ Appeal No. 49 of 1998 12. Barbara Bwalya Chibulu v Joseph Zulu and the Electoral Commission of Zambia, SCZ Judgment No. 49 of 2008 13. Attorney General v Marcus Kampumba Achiume (1983) Z. R. 1 14. PCP Mining Supplies Limited v ZAMM Imports Limited, CAZ Appeal No. 185 of2020 15. The Attorney General v Aboubacar Tall and Zambia Airways Corporation Limited, S. C. Z. Judgment No. 5 of 1995 Legislation referred to: 1. The Supreme Court Rules (1965) 1999 Edition (White Book) J2 Ot her works referred t o: 1. Zambia Civil Procedure, Commentary and Cases, Patrick Matibini, LexisNexis (2017) 2. Halsbury's Laws of England, 4th Edition, Butterworths, 1990 3. Bullen and Leake and Jacob's Precedents of Pleadings in the Queen's Bench Division of the High Court of Justice, 20th Edition, 1975 1.0 Introduction 1. 1 This is an appeal against the Judgment of the High Court at Lusaka, (Mr. Justice C. Zulu) , made on 22 August 2022, by which the Judge dismissed the plaintiff's claims in their entirety. 2 .0 Backgro u nd 2.1 In this part of the judgment, we refer to the parties by their designations in the cou rt below. The brief background of this matter is that, the p laintiff, Sarah Naambo Chikonka, a former employee of Contract Haulage Limited, commenced the action against the defendants. She unfortunately, passed away before the matter could proceed to trial. She was substituted by Samantha Shulikwa Chikonka and Catherine Naambo, joint administratrices of her estate (now appellant). By writ of summons and statement of claim, dated 1 April 2014, under cause no . 2014/HP/0504, the plaintiffs claims against the defendants (now respondents) was as follows: (i} A declaratory order that: J3 (a) The plaintiff was entitled to an offer, or alternatively that she had reasonable expectation of an offer, to purchase the flat subject of this action; (b) The 1st defendants had no power to sell the property Fl 11 Oa/ 162 Lusaka, without a court order; and (c) The purported sale by the 1st defendants, of said property, to the 4 th def end ant was unlawful, fraudulent, null and void ab initio; (ii) An order of cancellation of the sale transaction and Certificate of Title (CoT) issued to the 4 th defendant; (iii) An order that the 2 nd defendant pays the plaintiff the full retrenchment benefits plus interest the quantum of which would be agreed between the parties or in default, assessed by the court; (iv) Damages against the ]st, 3rd and 4 th defendants severally and jointly: (a) by way of compensation for loss of opportunity to purchase the flat in dispute; and (b) for loss of living accommodation; (v) Damages against the 3 rd and 4 th defendants, jointly and severally, for the inhumane treatment, mental anguish, distress and inconvenience suffered during and resulting from the e viction exercise carried out in violation of Article 15 of the Constitution of Zambia; (vi) Punitive damages against the 1st and 4 th defendants, severally and jointly; (vii) Interest; and (viii) Costs. 2.2 The plaintiff's case against the defendants was that she was employed by the 2 nd defendant on permanent basis as a senior secretary in 1985, until she was retrenched in 1995, along J4 with other employees, by virtue of a policy decision to privatise state enterprises. Following the retrenchment, she was re employed by the 2 nd defendant (in receivership) on a short term basis until 1997. 2 .3 The plaintiff averred that from the time she was employed, she had been a sitting tenant of the 2 nd defendant's flat No. 6 of F/ll0a/162, Villa Elizabetha, Luanshya Road, Lusaka, the subject property, until December 2015, when she was forcefully evicted by the 4 th defendant, with the help of policemen; and the whole block of flats was razed down. 2.4 That, despite being a sitting tenant, the 2 nd or 3 rd defendants had not offered h er to buy the flat, which was her entitlement according to a decision of the State. Further, that she had not been paid her retrenchment benefits, which included unremitted statutory contributions, which were the responsibility of the receiver of the 2 nd defendant. 2.5 The plaintiff averred that the State's decision was that sitting tenants could buy houses from the 2 nd defendant. The purchase price would be deducted from the tenant's terminal benefits. The Presidential Housing Initiative (which took over said houses) was to work out the mechanism for implementing the purchase transaction, in collaboration with the Ministry of Finance, the Ministry of Legal Affairs and the Receiver. 2.6 The plaintiff alleged that the 2 nd and 3 rd defendants, being under contractual obligation to do so, had failed, neglected or refused to pay her retrenchment benefits and effect the JS purchase of her flat, despite several representations she made. Further, that the 2 nd defendant had shown intention to evict the plaintiff. 2 .7 The plaintiff averred that, by a letter dated 10 February 2014, T. P. Chibwe & Co. Valuation Surveyors and Estate Agents, informed her that they were the estate agents contracted by the 1st defendants to sell the 2 nd defendant's properties under a Supreme Court Order. Further, the flat in which she was a sitting tenant was valued at K390,000.00, but it was offered to her on a first option basis, at the reduced consideration of K312,000.00 and the offer required her to confirm her acceptance within fourteen (14) days. 2.8 The plaintiff averred that she accepted the offer, but requested the estate agent to furnish her with the court order authorizing the 1st defendants to sell the 2 nd d efendant's properties, details of how much was realised from the sale of the 2 nd defendant's other properties and what was due to the 1st defendant; and the 1st defendants' letter appointing them as estate agents. 2.9 That, the plaintiff observed from the court record under Cause No. 1999/HP/0663 that: (a} There was no order to effect sale of the property, of which the flat in dispute was a part; (b} The ] st defendant, by court order granted on 30th June, 2009 charged the property in dispute and other properties belonging to the 2 nd defendant, to secure payment of a judgment debt; and later, in July, obtained an order granting leave to sale the charged properties; J6 (c} Subsequently, on 30th October, 2009, the ]st defendant filed a praecipe of elegit together with a writ of elegit for the sale of the 2 nd defendant's property in Stand No. 1635 Malambo Road, Lusaka, which writ was issued; (d) Later in December, 2009, the 1st defendants obtained an ex parte order for sale of said property on Malambo Road and another property No. 1523 in Ndola, at not less than KB.5 million (rebased} and not less than K300, 000. 00 (re based}, respectively; (e} The court order further stated that if the sale of the two properties would discharge the whole debt, the charging order in respect of the other properties would be deemed to have been discharged; (f) In October, 2010, the 1st defendant further filed a praecipe and writ of elegit for the sale of the Malambo Road property at a bid higher than KB.5 million and the judgment debt under Cause No. 1999/HP/0663 was fully satisfied from the proceeds of sale of the Malambo Road property. 2.10 That, by reason of the above, the flat in dispute was not among the properties the court ordered to be sold to satisfy the judgment debt in favour of the 1st defendants; and the charging order in respect thereof was deemed discharged although no formal order was drawn and registered at the Ministry of Lands. 2. 11 The plaintiff further averred that before determination of the suit, and while an ex parte order of injunction against the sale of the flat in contention was in force, the 1st defendant purported to sell the property of which the flat in contention was a part, being F / 11 Oa/ 162, Lusaka. That, the sale of the property by the 1st defendants to the 4 th defendant was J7 unlawful, fraudulent, and null and void; and the 4 th defendant acted negligently and at his own peril when he entered into the said conveyance transaction. Further, that the agents of the State at the Lands and Deeds Registry negligently and unlawfully registered the conveyance without the requisite court order; and the 4 th defendant was an accomplice to the fraud as he was aware of the plaintiff's suit herein and the injunctive relief, which she communicated to him in person when he went to view the property as an interested purchaser. 2.12 The plaintiff averred that the 4 th defendant forcefully evicted her, with the help of the police (subjecting her and her family to inhumane treatment) and razing down the whole block of flats around midnight while they were sleeping. 2.13 In their defence exhibited at pages 511-516 of the record of appeal, the 1st defendants admitted that the plaintiff was, indeed, the sitting tenant, but her employment was terminated and she was requested to vacate the property. That the plaintiff was neither forcefully nor unlawfully evicted, but ignored the off er to buy the property, as well as the letter giving her twelve (12) months' notice to vacate. 2.14 The 1st defendant denied that the plaintiff was entitled to purchase the flat as her employment was terminated and the 2nd defendant notified her and others that there was no directive to sell to sitting tenants. That, this notwithstanding, the plaintiff was made an offer which she refused to unequivocally accept. J8 2.15 The 1st defendants further admitted that there was a cabinet decision to implement the selling of houses to sitting tenants, but government overturned the same and the plaintiff was informed that she could not buy the house without an offer. 2.16 The 1st defendants averred that the property in question was charged by a charging order absolute registered at the Ministry of Lands and earmarked to be sold by virtue of a court order. The 1st defendants, further, averred that the court order to sell the properties was from the High Court, issued on 14 July 2009, under Cause No. 1999/HP/0663 and not the Supreme Court. 2. 1 7 That, when the plaintiff failed to accept the offer, the 1st defendants wrote to her informing her of the lapse of the offer and giving her notice to vacate the flat, which she refused to do. 2.18 The 1st defendants denied the plaintiff's recount of the court record under Cause No. 1999 /HP/ 0663 and, instead, averred that: (a) There was a court order ordering the sale of several properties, including Fl 11 0a/ 162 Lusaka, of which the flat in contention was a part; (b} The 2 nd defendant had not fully satisfied its indebtedness to the 1st defendants as the Lusaka property sold fetched less than what was owed to the 1s t defendants. That the Malambo property only fetched K9 million as at 201 0 when the total amount owed to the 1st defendant as at 201 0 (inclusive of interest and costs) was estimated at Kl0, 868,954. 76. J9 2 .19 The 1st defendants further averred that the reason why there was no formal order drawn up to discharge the charging order absolute was because the 2 nd defendant's total indebtedness to the 1s t defendant was never fully satisfied; and as such the order of sale was still effective. 2.20 The 1st defendants also denied that they could only sell the N dola property, as the list of all the properties were already identified and the choice was open to them. 2.21 The 1st defendants denied being aware of the alleged injunction as they had not been personally served with it. That, this notwithstanding, the 1st defendants sold the property in dispute pursuant to a court order which was never set aside, and as such was still valid and the plaintiff was not entitled to the said property. 2.22 The 1st defendants finally averred that the plaintiff had failed to establish a cause of action against the 1st and 4 t h defendants and thus, not entitled to any of the claims in the statement of claim. 2.23 The 1st defendants, by way of counter-claim, averred that they suffered loss and damage in that when they realised that the claims under Cause No. 1999/HP/0663 had not been fully satisfied, they resorted to sell the other charged property, namely, F / 11 Oa/ 162, of which the flat in contention was a part. 2 .24 With this, the 1st defendants counter-claimed the following reliefs: J10 (a) A declaratory order that the plaintiff is not entitled to buy the flat at Stand No. Sub/ 162/ 11 Oa, Lusaka; (b) A declaratory order that the 4 th defendant is the legal owner of Stand No. Sub/ 162/ 11 Oa, Lusaka; and (c) Costs. 2.25 The 4 th defendant also filed in his defence (exhibited at pages 821-822 of the record of appeal) and his case was that he was a bona fide purchaser for value without notice and the plaintiff was given reasonable time to vacate the flat in question, before her eviction and that the said eviction was done within the confines of the law. 2.26 It appears, from the record, that the 2 nd and 3 rd defendants did not enter any appearance or file any defences. 3.0 Decision of the court below 3.1 After considering the documentary and oral evidence tendered before it, the lower court established the following as the undisputed facts: (i) The plaintiff was a fonner employee of the 2 nd defendant, working as a senior secretary from 1987 to 1995, when she was retrenched with other employees, following the privatization policy implemented by the Government in power at the time; (ii) The plaintiff temporarily worked for the 2 nd defendant m receivership, from 1995 to 1997; (iii) A notice to vacate the flat she was occupying as an incident of employment was given to her by the 2 nd defendant, only allowing the plaintiff to stay in the flat from 30th August, 1997 to 31 st Jll December, 1997, but the plaintiff did not vacate the flat until 3rd December, 2015; (iv) The 1st defendants are equally former employees of the 2nd defendant who were retrenched/ retired and later sued the 2nd defendant for payment of their retirement and retrenchment benefits under Cause No. 1999/HP/0663; (v) In a ruling dated 19th October, 2005, One Hundred and Seventy-Two (172) retrenchees were awarded the sum of K6, 379,901. 72 and two (2) retirees, the sum of Kl0l,149.89; (vi) In terms of execution to actualize the judgment debt, the 1st defendants in Cause 1999/ HP/ 0663 filed an amended charging order absolute on 11 th June, 2009, along with a schedule of charged properties, signed by the deputy registrar on 30th June, 2009. Among the properties listed were: (a) Stand No. 1635 Malambo Road, Lusaka; (b) Stand No. 1523 Itawa, Ndola; (c) Subdivision No. 162 of Farm No. 11 0a, Villa Elizabetha, Lusaka (the property in dispute); (vii) In July, 2009, the deputy registrar granted the 1s t defendants leave to sale the properties in (vi) above and on 15th December, 2009, the deputy registrar approved an ex parte order at the instance of the 1s t defendants, following the issuance of the order of sale and writ of elegit, directing, inter alia, that: (a) The sale would be by the Sheriff of Zambia by public auction for the Malambo Road property, an amount not less than KB. 5 million and for the Ndola property, not less than K300, 000. 00, by contract to sitting tenant Mrs. Senether Ngoma; (b) The contract of sale, consent to assign and assignment would be executed by the deputy registrar; (c) If, after the sale of the Malambo Road property and the Ndola property, the whole debt is discharged, the charging order in J12 respect of the other properties would be deemed to have been discharged; (viii} The Malambo Road property was sold for the price of K9 million; (ix} The 1st defendant, through their estate agents, Messrs. T. P. Chibwe & Co., offered to sell the plaintiff the flat in contention at the price of K390,000.00. The offer was valid for Fourteen (14) days from ]0th February, 2014 and on 24th February, 2014, the plaintiff accepted the offer and requested the agents to furnish the following: (a} The terms of payment they were offering her; (b} The court order that was authorising the 1st defendants to sell the 2 nd defendant's properties; (c} Details of how much was raised from the sale of the 2nd defendant's properties, what was due to the 1st defendants and what was paid to them; and (d} The agents' appointment letter by the 1st defendants. By letter dated 6th March, 2014, the 1st defendants' estate agents (x} advised the plaintiff to pay 75% of the purchase price, upon execution of the contract of sale, and the balance, 25% on or before 27th March, 2014; (xi} The whole purchase price was not paid by the plaintiff as suggested by the agents and thus, the offer lapsed and was no longer valid, rendering the flat the plaintiff was occupying, open to the general public to buy; (xii} Subdivision No. 162 of Farm 11 0a, comprising Six (6) flats, including the one the plaintiff was occupying, was sold to the 4th defendant around June, 2014, at the price of K2, 700,000.00, and a CoT was obtained in the name of the 4th defendant, dated 16th June, 2014; (xiii) The 1st defendant took out another action in the Ndola High Court, under Cause No. 2014/HN/ 287 against the tenants of the block of flats, to recover outstanding rentals against the tenants. A warrant of distress was issued and approved by the deputy registrar, on J13 23rd September, 2014, and, eventually, the plaintiff and other tenants were evicted from the property on 3 rd December, 2 015; and after the 4 th defendant took possession of the property the existing block of flats was razed down. 3.2 After considering the evidence and submissions of the parties in the lower court, the le arned trial Judge made findings on contentious issues. On whether or not the action was res judicata, the learned trial Judge found that the case before him was not res judicata because the plaintiff was entitled to commence the present action and challenge the orders allegedly enforced in a fraudulent manner. 3.3 On the issue of whether or not the plaintiff was entitled to b e offered and/ or purchase the property as a sitting tenant, from the 2 nd defendant and/ or the Government, the learned Judge held that there was actually no law to compel the receiver of the 2 nd defendant or whichever State organ was in control, to sell the flat to the plaintiff. 3 .4 The third issue that the learned trial Judge considered was whether the property was unlawfully and fraudulently sold to the 4 th defendant. In respect of this issue, the learned trial Judge was unable to reach a conclusion that the block of flats was fraudulently or dishonestly sold by the 1st defendants with the intent to deprive the 2 nd defendant. He instead, found it probable that the block of flats was sold with supporting court orders, because it was probable that there was a debt that was still outstanding. The learned trial Judge held that the J14 purported allegations of fraud had not been proved to the required standard. 3.5 To that extent the lower court allowed the counter-claim that the 4 th defendant's CoT was not tainted with fraud. He thus held that it was exempted from cancellation. 3.6 Regarding the issues raised by the plaintiff that the sale of the property in question was procedurally improper, the learned trial Judge found that the said issues are purely procedural matters that the plaintiff ought to have raised by joining Cause No . 1999/HP/0663, rather than pursuing them in this action. That, if she had joined Cause No. 1999 /HP /0663 before an order of sale of the charged properties was made, the court hearing the application for order of sale would have considered the interests of all parties in the land charged for sale. 3.7 On the issue of whether or not the plaintiff was paid all her retrenchment/terminal benefits by the 2 nd defendant, the learned Judge established that the payment of the sum of K7,910 ,740.06 and other payments were indicative that the plaintiff received some payments. He noted that it was regrettable that there was no convincing evidence adduced by the plaintiff capable of satisfying him that she was not paid in full. 3.8 In conclusion, the learned trial Judge dismissed the plaintiff's claims in their entirety. 3.9 With respect to the counter-claim for a declaration that the plaintiff was not entitled to purchase the flat, the same JlS succeeded. Having held that the CoT was not fraudulently ob tained , the 4 th defendant was d eclared as legal owner of Subdivision No. 162 of Farm No. 110a, Villa Elizabetha. 3. 10 The learned trial Judge also dismissed t h e 1st defendants' claim that they suffered loss and damage. No order as to costs was made. 4.0 The appeal 4.1 Dissatisfied with the judgment of the court below, the plaintiff, now appellant, appealed to this Court, advancing the following gr ounds: 1. The court below erred in law and fact by finding that the sale of Stand No. F/11 Oa/162 was lawful, without an order of the court, as required by Order 50 of the White Book, subsequent to obtaining a Charge Order Absolute; 2. The sale of the property was illegal and unlawful and a court of law does not give aid to illegal transactions; 3. The court below also erred in law by failing to find that enforcement of judgments by way of Charging Order, pursuant to Order 50 of the White Book does not apply to Zambia as it is based on an English provision that does not apply to Zambia; and 4. The court below erred in law and fact by failing to find that the appellant was entitled to the property as part of her unsettled terminal benefits nor was she party to the Charge Order proceeding being made absolute. J16 5.0 The appellant's arguments 5.1 On behalf of the appellant, Mr. Chilekwa, learned counsel, relied on the heads of argument filed on 9 January 2022. He also submitted orally with respect to ground four. 5.2 On ground one, the appellant submitted that the lower court erred in that only a charging order absolute was obtained and the appellant was never given an opportunity to be heard on the said order. The appellant advanced that the procedure for obtaining a charging order is two-staged. Firstly, a charging order nisi may be obtained ex parte by the judgment creditor against the judgment debtor's property, as a means of executing a judgment debt; and secondly, at the hearing by the court, where both parties must be heard before the court can decide whether or not to make the charging order absolute. In this regard, counsel cited Order 50, rule 1 and 2 of the White Book1 , which provides as follows: "(1) The power to make a charging order under section 1 of the Charging Orders Act 1979 (referred to in this Order as "the Act'J shall be exercisable by the Court. (2) An application by ajudgment creditor for a charging order in respect of a judgment debtor's beneficial interest may be made ex parte, and any order made on such an application shall in the first instance be an order, made in Form No. 75 in Appendix A, to show cause, specifying the time and place for further consideration of the matter and imposing the charge in any event until that time." J17 5.3 The appellant also referred the court to the learned author of Zambia Civil Procedure Commentary and Cases3, volume II, at page 1383. That, at the second stage of the process is a hearing which the judgment debtor may attend and the said debtor may show cause why the order nisi should not be made absolute. That, at the end of the hearing the order nisi may be discharged or varied, but if it is made absolute , the effect of the charging order is that the judgment debtor is treated as having a charge over securities. Further, that upon grant and registration of a charging order, if the judgment debt remains unpaid, the judgment creditor can then enforce the charge by having the securities sold and paid from the proceeds. That, the proceedings for enforcement of a charging order by sale of the property charged (if that becomes necessary) must be begun by originating summons in the High Court. 5.4 It was submitted, on behalf of the appellant, that from the facts before the lower court, the provisions espoused above were not complied with by the 1st respondents in enforcing the charging order in question, because the appellant was not given an opportunity to be heard before the same was made absolute. That this, therefore, tainted the whole sale of Stand No. F / 1 lOa/ 162, Lusaka with illegality. The appellant contended that it was necessary for the respondents to obtain an order of sale with regard to the property in dispute, despite obtaining a charging order, as a separate legal action before proceeding to sell the property. The appellant, in this regard, J18 referred the Court to pages 102 to 111 of volume 1 of the record of appeal and pages 984 to 985 of volume 3 of the record of appeal. 5.5 Regarding ground two of the appeal, the appellant's counsel reiterated their argument under ground one and added that where there has been some procedural irregularity in the proceedings leading up to a judgment or order which is so serious that the judgment or order ought to be treated as a nullity, the court will set it aside. To fortify this argument, counsel referred the Court to Halsbury's Laws of England2 . 5 .6 Further, citing the case of Craig v Kanssen 1 , it was submitted that failure to serve process where process is required, renders null and void an order made against a party who should have been served, and the court can set aside such an order in its inherent jurisdiction and it is not necessary to appeal from it. 5.7 Counsel also cited Bullen and Leake and Jacob's Precedents of Pleadings in the Queen's Bench Division of the High Court of Justice3 and contended that once illegality is brought to the attention of the court, it overrides all questions of pleadings including any admissions made therein. It was submitted that where there are illegal transactions leading up to the judgment, the court should set aside such judgment because such action is a nullity. That, in casu, the 1s t respondent after obtaining the charging order nisi, proceeded to sell that property in dispute when there was still a preceding injunction on the said property. They proceeded to J19 sell the property to the 4 th respondent against the order of the court, and therefore, was a nullity. 5.8 With regard to ground three of the appeal, it was submitted that Order 50 of the White Book, as a mode of enforcement of judgments, does not apply to Zambia as it is premised on an English Act that does not apply to Zambia. That, in the case of Molly Pelekamoyo Washington v New Plaza Enterprises Limited2 , it was stated, with regard to the jurisdiction of the High Court, in relation to charging orders as follows : "In view of the aforesaid, the learned Judge in the Court below having been moved under Order 50 RSC, had no jurisdiction to hear the matter. The proceedings were, therefore, a nullity and the Order of 21 st September, 2021, with its attendant orders are accordingly set aside." 5.9 Counsel submitted that the lower court was bound by the Molly Pelekamoyo case, by virtue of the doctrine of stare decisis and that it followed that the judgment of the lower court herein was irregular and all orders made and holding that the 4 th respondent was a bona fide purchaser when this action had no basis at law. It was submitted that the lower court erred in law by failing to find that enforcement of judgments by way of charging order pursuant to Order 50 of the White Book does not apply to Zambia. 5.10 That, from the record of appeal, it is clear that the purchaser was aware that there was an injunction preceding the sale, which was disregarded. In this regard, we were referred to pages 140-144 of volume 1 of the record of appeal. J20 5.11 Further, that there were no separate proceedings that were instituted for the enforcement of the charging order by way of an order of sale, meaning tha t the assignment to the 4 th respondent had no basis and was irregular, and the Registrar of Lands was wrong to have processed such assignment without an order of sale authorising such transfer. 5.12 In augmenting ground four, Mr. Chilekwa r eferred the Court to pages 29, 30, and 37 of the record of appeal, regarding the lower court's consideration of a letter dated 20 September 2001, from the Ministry of Finance and Economic Development, and a letter dated 1 December 2009 from Messrs CL Mundia and Company to the effect that sitting tenants were allowed to but under the Presidential Housing Initiative, and that the debt to the 1st respondents was satisfied respectively. He submitted that the court below admitted the status of the appellant as a sitting tenant. Therefore, the lower court's holding went against that analysis of the evidence. In urging the Court to allow the appeal, counsel placed reliance on the case of Nkhata and Others v The Attorney-General3 6.0 The respondents' arguments 6. 1 The 1 st, 2 nd, and 3rd respondents did not participate in the appeal. On behalf of the 4 th respondent, Mr. Katolo relied on the arguments filed on 3 April 2024 and indicated that they J21 would respond to grounds one and two together, and grounds three and four separately. 6.2 In opening their arguments, the 4 th respondent's advocates contended that the grounds of appeal and the arguments in support, thereof, seek to assail findings of fact of the trial court, in grounds one and four. Thus, before addressing the said grounds of appeal, the 4 th respondent begun by setting out the law on the instances when an appellate court may fault and consequently reverse the findings of fact by a trial court. 6.3 Citing the cases of Communications Authority of Zambia v Vodacom Zambia Limited4 , Examinations Council of Zambia v Reliance Technology Limited5 and Zambia Revenue Authority v Dorothy Mwanza and Others6 , it was submitted, that, as a general rule, an appellate court will not tamper with findings of fact made by the lower court except in circumstances where it is shown that: (i} (ii) the findings of fact by the lower court were perverse; the findings of fact by the lower court were made in the absence of any relevant evidence; (iii} the findings of fact by the lower court were based on a misapprehension of facts; or (iv) the findings of fact by the lower court are such that on a proper view of the evidence, no trial court acting correctly can reasonably make. 6.4 It was submitted that for grounds one and four to succeed, the appellant ought to meet the threshold set above. J22 6.5 Counsel proceed ed to argue grounds one and two, and submitted that the manner in which the first ground of appeal was couched was misconceived, on the premise that the lower court did not hold that the sale of Stand No. F / 1 lOa/ 162 was lawful without an order of court as required under Order 50 of the White Book, subsequent to obtaining a charging order absolute. That, however, the correct holding of the lower court can be seen at page 38 of the judgment, as follows : "In the absence of that convincing evidence from the alleging party to the required standard, I am unable to reach a conclusion that the block of flats was fraudulently or dishonestly sold by the 1st defendants, with intent to deprive the 2 nd defendant. I find it probable that the block of flats was sold with supporting court orders reproduced herein, because it is probable that there was a debt that was still outstanding." 6.6 Further, that on the same page of the judgment, the lower court held that the sale of the property in issue, to the 4 th respondent, anchored on a charging order absolute and an order for leave to sale, was not fraudulent in character. Furthermore, the court stated that the issues that were raised by the appellant's counsel, that the sale was procedurally improper were purely procedural matters that the appellant ought to have raised by joining Cause No. 1999 /HP /0663, rather than pursue them in this action. That, therefore, if the appellant was desirous of being heard on t he issues of challenging the charging order and the order for sale granted J23 under Cause No. 1999/HP/0663, the proper recourse was for the appellant to apply to join the said cause and challenge the orders thereunder. 6 .7 It was submitted that the appellants have not demonstrated, in this appeal, the perversity in the lower court's finding nor have they attempted to demonstrate in what respects the findings were a misapprehension of facts. Additionally, that the appellant has failed to demonstrate that the lower court's findings were made in the absence of relevant evidence nor were they made on no proper view of the evidence before court. The 4 th respondent, thus, submitted that the findings of the lower court should not be reversed as they were arrived at on the basis of relevant evidence before the court. 6.8 It was also submitted that the appellant's argument that the property in issue was sold without an order of the court was malicious and aimed at misleading this Court because at page 16 of the lower court's judgment and page 984 of volume 3 of the record of appeal, is an order for sale, granted to the 1st respondent. 6.9 Responding to the appellant's reference to the learned author of Zambia Civil Procedure, Commentary and Cases (2017), the 4 th respondent submitted that the same was merely the opinion of the author and was not binding on the Court. The 4 th respondent advanced that the 1st respondents did, in fact, obtain an order for sale of the property, and it was baseless for the appellant to say that the sale was done without an order J24 for sale. Further, that the order for sale was still valid and never set aside . In this regard, the 4th respondent called in aid the case of Frank Mumba v Mulenga and Another7 , wherein the Supreme Court reportedly held that: "A party to an action is bound by a decision of a competent court, even though such a decision is considered erroneous for as long as the decision is not set aside." 6.10 In response to the appellant's argument that the sale of the property in issue was illegal and unlawful, it was submitted that the argument lacks merit and the appellant has failed to provide evidence of how the sale was illegal and unlawful. Further, that the appellant has raised new issues of illegality which they did not plead in the lower court. In this respect, the 4 th respondent submitted that a matter not raised in the lower court cannot b e raised before a higher court as a ground of appeal and, called in aid, the case of Wilheim Roman Buchman v Attorney General8 . Furthermore, that the appellant has failed to demonstrate what amounted to illegality and unlawfulness in the sale of the property in issue. 6 .11 Regarding the appellant's argument that there was an injunction in place when the sale of the property was effected, t h ereby rendering it unlawful and illegal, the 4 th respondent rebutted it by pointing to the holding of the lower court at page 31 of the judgment, wh erein the learned trial Judge held that the injunction obtained in this matter did not render the orders for sale under Cause No. 1999/HP/0663 redundant; J25 and that the property was sold pursuant to a court order which was never set aside and was still valid. It was, thus, submitted that the lower court was on firm ground to have found that the sale anchored on a charging order absolute and an order for sale. That, it is frivolous and vexatious for the appellant to have raised the second ground of appeal, as this issue was dealt with by the lower court with clarity and precision. It was submitted that the lower court was on firm ground in finding that the appellant had failed to prove their case on a balance of probabilities and were not entitled to the claims before the lower court. The 4 th respondent beseeched us to dismiss the first and second grounds of appeal. 6.12 In response to ground three of the appeal, that the lower court failed to find that the enforcement of judgments by way of charging order pursuant to Order 50 of the White Book does not apply to Zambia, the 4 th respondent contended that it was difficult to fault the lower court for not determining the issue raised by the appellant as the issue ought to have been dealt with under Cause No. 1999/HP/0663, being the cause under which the charging order absolute and the order for sale were granted. That, at page J31-J32 of the judgment, appearing at pages 38 and 39 of the record of appeal, the lower court addressed the issue in ground three of the appeal by stating that if the appellant was of the view that the sale was not procedurally proper in light of Order 45, 50 and 88 of the White Book, the same ought to have been dealt with under Cause No. J26 1999 /HP /0663 and the appellant could have applied to join that matter, even after ju dgment. To lend support to this, the case of London Ngoma and Others v LCM Company and Another9 was cited. 6 . 13 The 4 th respondent, further, submitted that the appellant has no locus standi to challenge the transaction between the 1 st respondent and the 4 th respondent especially that the 2 nd respondent and the Government chose not to judicially challenge the sale of the property. It was contended that the case of Molly Pelekamoyo Washington supra, as applied by the appellant could be distinguished from the present one, in that in the former, the court had jurisdiction to pronounce itself on the charging order that the lower court granted because the said orders were granted in the same matter, while in the latter, the charging order and order for sale, being ch allenged were granted in another action, namely Cause No. 1999/HP/0663, to which the appellant was not a party. That, therefore, this Court does not have jurisdiction to pronounce itself on a cau se that is not before it. To this end, the 4 th respondent referred us to the case of Morgan Naik v Simon David Burgess and 5 Others1 0 , which reportedly held that out of nothing, comes nothing and jurisdiction is everything, that without it, a court has no power to make one more step. With this, the 4 th respondent submitted that the lower court was on firm ground in its decision to refrain from pronouncing J27 itself on orders granted under Cause No . 1999/HP/0663. We were urged to dismiss the third ground of appeal. 6.14 Regarding the fourth ground of appeal, that the lower court erred by failing to find that the appellant was entitled to the property as part of her unsettled terminal benefits nor was she party to the charging order proceeding it was made absolute, the 4 th respondent reiterated his arguments in respect of grounds one and two . 6.15 The 4 th respondent submitted that it was established before the lower court that the appellant was not entitled, as of right to an offer from the 2 nd respondent, to purchase the flat. That, in fact, the 2 nd respondent, by letter had terminated the tenancy with the appellant and was ordered to surrender the property sometime in 1997. However, the appellant, contrary to the wishes of the 2 nd respondent only vacated the property in 2015. Citing the case of Timothy Hamaundu Muuka Mudenda v Tobacco Board of Zambia11 , counsel submitted that the legal position is that a licensee is not a tenant at law and as such, has no legal rights 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. 6.16 The 4 th respondent submitted that the lower court did not err in failing to find that the appellant was entitled to the property as part of her unsettled terminal benefits on the premise that she was not offered to purchase the property by the 2 nd r espondent. J28 6.17 In view of the foregoing, the 4 t h respondent prayed that we uphold the decision of the lower court and dismiss the appeal with costs. 7.0 The appellant's reply 7.1 In reply, Mr. Chilekwa made the succinct point that the subject property was removed from the charging order. That if the Court accepted his submission, then all else submitted by the 4 th respondent would crumble. 8.0 Our decision on appeal 8.1 We have carefully considered the impugned judgment of the court below together with the record of appeal and the arguments in support and in opposition. 8 .2 We wish to point out from the onset that, our observation is that the findings of the lower court in the assailed judgment herein were mostly findings of fact. Essentially, by indicating that they are appealing the whole judgment, the appellants are inviting this Court to revisit those findings of fact and possibly reverse them. This comes at a price, as it is trite that an appellate court will rarely interfere with the findings of fact of the lower court unless in strict circumstances that warrant such interference. This has been stated in a plethora of Supreme Court and Court of Appeal authorities inter alia, in the case of Barbara Bwalya Chibulu v Joseph Zulu and the J29 Electoral Commission of Zambia12 and the case of Attorney General v Marcus Kampumba Achiume13. 8. 3 Therefore, the appellant will have to demonstrate this standard in order to sway the Court to reverse some of the findings of fact that they have challenged. 8.4 The appellant has raised four grounds of appeal and argued them individually in the order they were presented in the memorandum of appeal. We will, however, begin by addressing the four th ground of appeal as we are of the view, the crux of determining this entire appeal lies in how we will resolve the fourth ground of appeal. 8.5 In ground four of the appeal, the appellant is arguing that the court below should have found that the appellant was entitled to the property as part of her unsettled terminal benefits and that, she was not party to the charging order proceedings being made absolute. It is of utmost importance to resolve what the appellant's alleged source of entitlement is, for believing that she is the one who was supposed to buy the flat she was occupying. The appellant had alleged, through her pleadings before the lower court, that it was the decision of the State, while she was occupying the flat in issue, that sitting tenants could buy houses from the 2 nd defendant by deducting the price from the tenant's terminal benefits and the Presidential Housing Initiative (which took over said houses) was to work out the mechanism for implementing the J30 = purchase transaction, in collaboration with the Ministry of Finance, Ministry of Legal Affairs and the Receiver. 8.6 The 1s t respondents admitted that the appellant was, indeed, the sitting tenant. The 1st respondents d enied that the appellant was entitled to purchase the flat as her employment was terminated and the 2 nd respondent notified her and others that there was no directive to sell to sitting tenants. The 1s t respondents further admitted that there was a cabinet decision to implement the selling of houses to sitting tenants, but government overturned the same and the plaintiff was informed that she could not buy the house without an offer. 8. 7 It is apparent that the appellant anchored her insistence that she was entitled to be sold the flat she was occupying, on the alleged government policy that mandated sitting tenants to be allowed to buy houses by deducting the price of the house from their unpaid terminal benefits. Coupled with the appellant's belief in this government policy, was her belief that her terminal benefits had not been paid in full. However, when the court below examined the evidence before it, it made the following findings of fact at pages J22 and J35: "Indeed, by letter dated September 20, 2001, aforementioned, from the Ministry of Finance and Economic Development, the Receiver for CHL was advised as follows: Sitting tenants be allowed to buy houses by deducting the price of the house from their terminal benefits and Presidential Housing Initiative which took over these houses J31 • should, in collaboration with the Ministry of Legal Affairs and the liquidators work out a mechanism of how such a transaction could be implemented. The mechanism contemplated in said letter was never operationalised, the plaintiff and five other similarly circumstanced claimants made several follow-ups with relevant state organs to buy the respective flats they were occupying as sitting tenants and unpaid ex-employees of CHL, but their efforts to buy said flats did not materialise. In fact, by letter dated December 1, 2009, the Acting Managing Director of CHL; the plaintiff and her co-tenants were advised that the management of CHL had no power to dispose of properties in the absence of the Board. Again, by letters dated November 26, 2012, and January 3, 2013, by the Attorney General and the Solicitor General, respectively, the plaintiffs co-tenant, Mr. A. B. Kunda was advised that the said offices were not in a position to help with his pursuit. Existentially, there is no law to compel the receiver of CHL, or whichever state organ was in control to sell the flat to the plaintiff. The letter dated September 20, 2001, supposedly relied on by the plaintiff was not conclusive, in the absence of a concrete offer forwarded to the plaintiff to buy the fl.at. It was alleged that the plaintiff had an equitable interest in the flat, and had a legitimate expectation to be offered the flat for sale by CHL or the Government. I do not agree with this proposition. After the plaintiff was directed to vacate, she ceased to be a sitting tenant. The notice of her eviction was never rescinded ... J32 • Given the circumstances herein, I do not discern any factual or legal basis that warranted an inference of a legitimate expectation to warrant a conclusion that the plaintiff was circumstantially entitled to an offer." "While it is plausible that there was an ex-gratia payment made by the Government to ex-employees of CHL to cushion their financial crunch, the ex-gratia payment was only Kl,500,000.00 (unrebased). The letter dated September 20, 2001 aforementioned, attests to this. The payment of K7,910, 740.06 and other payments. Regrettably, there is no convincing evidence that was adduced by the plaintiff capable of satisfying me that the plaintiff was not paid in full. The plaintiff witness ought to have adduced evidence with certainty and particularity, speaking to the exact nature of the claims, what was paid and the balance of what was not paid, if any, rather than leave the whole claim to conjecture." (Emphasis ours) 8.8 The pronouncements of the lower court, espoused above, in our view, clearly settled the two issues, namely, whether the appellant was entitled to be sold the flat she was occupying, under some government policy; and whether she had been paid her benefits in full. These were findings of fact, and as we had earlier pointed out, herein, a certain standard must be satisfied by the appellant for us to go back and vary such findings. Unfortunately, the appellant has not led this Court to any evidence on the record which the lower court misapprehended or failed to consider and how that was the J33 case, regarding the issues of the appellant being entitled to the sale of the flat and the payment in full of her terminal benefits. 8.9 We are of the view that the court below properly and intelligibly considered the evidence before it in arriving at its findings and the appellant has failed to demonstrate to us that the threshold set for interfering with findings of fact in the cases of Barbara Bwalya Chibulu v Joseph Zulu and the Electoral Commission of Zambia and Attorney General v Marcus Kampumba Achiume supra has been satisfied. 8.10 It appears to us that, had the two issues above been settled in favour of the appellant, that would have been the factor that would have given the appellant nexus to the orders (under Cause No. 1999 /HP/ 0663), that they were seeking to challenge by bringing the action herein against the respondents. There was, therefore, no obligation on the part of the lower court to make a finding that the appellant was not party to the charging order proceedings being made absolute. 8.11 The holding of the lower court quoted above, essentially places the appellant in the position of an outsider in respect of their standing to Cause No. 1999/HP/0663 and through this matter, sought to challenge orders that were made under that cause, without them (appellant) first applying to be joined to that cause as an interested party. The proper procedure, as pointed out by Mr. Katolo, is that a party who wishes to assail any order made under a given action should first apply to be joined to that action and this can be done even after judgment. J34 The effect of being joined to the action is what would give them the requisite locus standi to challenge anything done under that action. 8.12 The appellant had also argued under ground four of the appeal, that she had obtained an injunction that the 4 th respondent was aware of. We are of the view t h at the lower court adequately addressed this issue when it held that the injunction did not render the orders for sale obtained under Cause No. 1999/HP /0663 redundant. In the case of PCP Mining Supplies Limited v ZAMM Imports Limited14 , we had indicated our r eluctance to deal with issues that had been settled by a judgment that had never been challenged, in the spirit of upholding the long-standing principle t h at a judgment or order of court continues to be of legal effect until it is formally set aside by the court. 8 .13 In view of the foregoing, we find no merit in ground four of the appeal and the same must fail. 8.14 We had indicated earlier that h ow we determine ground four of the appeal would determine how we deal with the other grounds of appeal. Having determined under ground four that the appellant essentially had no locus standi to assail anything done or any resultant orders under Cause No. 1999 /HP /0663, unless after successfully joining those proceedings, we find it otiose to proceed to address grounds one, two and three of the appeal. We are of the considered view that the said grounds are, 1n effect, inviting us to interfere with the findings and J35 • orders (and their consequences) in a matter that is not before us. 8.15 In order for us to have had the proper jurisdiction to comment on any ord er resulting from Cause No. 1999/HP/0663, the said cause needed to have been brought before us by way of appeal, and not in this manner that the appellant seeks to do, through the proceedings now before us. 8. 16 We accordingly apply the case of London Ngoma and Others v LCM Company and Another supra as cited and relied upon by the 4 th respondent, in this r egard, and which in turn r elied on the case of The Attorney General v Aboubacar Tall and Zambia Airways Corporation Limited15. 8.0 Conclusion 8 . 1 The appeal wholly fails and is accordingly dismissed. The decision of the lower court is her 8.2 Costs awarded to the 4 th re . o e ts to be agreed or taxed in default thereof. COURT OF APPEAL JUDGE C. K. Makungu D. COURT OF APPEAL JUDGE COURT OF APP AL JUDGE J36