Teddy Puta and Other Employees of Mpelembe Drilling Company and Ors v ZCCM Investment Holdings Plc and Ors (2008/HK/0255; 2008/HK/604; 2009/HK/0258) [2023] ZMHC 64 (1 April 2023)

. ,- CONSOLIDATED CAUSE LIST NUMBER. , CAUSE LIST NUMBER CAUSE LIST NUMBER IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REG ISTRY HOLDEN AT KITWE {Civil Jurisdic;:tion) - .,.. . .. . __ BETWEEN: 2008 /HK/ 604 2008 f Hf f 0255 2009 /HK/0258 TEDDY PUTA AND OTHER EMPLOY Ell:~: . : OF MPELEMBE DRILLING COMP/.._py . . EUNICE MAGAISA AND OTHEF~ E1vf~: :·:D:rr.rn:s OF TECHPRO 2ND PLAINTIFFS PARTRICK PHIRI AND OTHER ZCCl\! EMPLOYEES SECONDED TO IT;3 cu;;.::s 3RD PLAINTIFFS AND ZCCM INVESTMENTS HOLDING Fl°. C ·· . ·:·.\, .. · 1sT DEFENDANT AMBIDIWIRE FRIDAY AND OTHBR ?OI~Iv1:8R ZCCM ~ EMPLOYEES · _;i_:_ : · · . - . GRACE CHISHIMBA AND OTHEl~S ;~ GRACE MUKHALA AND OTHERS _.,. 2ND DEFENDANTS ~ .3RD DEFENDA. NTS 4 TH DEFEND.-'\NTS • '"'; ' u- 7\ l ,, .. ;.., AUTHORITIES Cases 1. Kennedy Kalunga and. Others , 1: .zcCM Case No. 161/1999 2. ZCCM v. Richard Kangwa Appeal No. 169 of 1999 3. Victor Kangwa v. Bonney Khunga App·eal No. 82 of 2020 4. ZCCM v. Banda and Beston Ch:mbeshi Appeal No. 204 of 2014 5. Lusaka City . Council , Nation.a ! Airports Corporation v. Grace Mwai:nba SCZ No. 21 of 1999 6. Felix Kanyimba v. Michael :Muso nda Appe~l No 99 of 2000 7. Edith Nawakwi v. Lusaka City Council and Sikanyika App:eal No. 26 of 2001 · 8. Chilanzi v. Chisha and ZCCM Appeal No. 12_8 of 2009 9. Rodgers Chama v. z r sc Appear No. 149-of 2002 10. Muimui v . Chunda SCZ Ajp.::::ll ·-l'fo. -50 of 2003 11. Anti-corruptio·n Com~i~~-io;{: ~ -:: 3?arn 11et Development Coope'ration Limited (2008) vol. 1 ZR69 - · .... 12. Mudenda v. Tobbaco Board of_•ZP .. mbia SCZ Appeal No: 49 of 1998 13. Jackson Musonda Mukolo •V>ZCCI\'I Investments Hol dings PLC and Trevor Nyambe 2017/HK/ .2(.51- .('!.!11.:reported} ' )' ) 16. 14. Hillas & Company v. Arcos:Li:mite.<l ,(-1932} 147 LT 503 15. Colgate Palmolive Zambia In c v . Abel'Shemu Chuuka & oth ers Appeal No. 1981 of 2005 SCZ·/8/.269/.200(P-rinting Numerical Regis tering Company v ... Si'.rnpson. ·, Malichu pa v. Tanzania-Zc:is•r~i . .:i f:.ailways Authority (2008) Vol 2 ·zR ZCCM v. Chilongo (SCZ o f -20i}l) 'ZMS'C 13 Gondwe v. Supabaking c-otaµany Limited (2001) ZR 57 Kafue District Council v . Ghipufa-{199 5-1997) ZR 191s Evans Banda v. Abigail Mwa:1z_a:ti'O ll) Vol .3 ZR 238 17. 18. 19. 20. . . STATUTES .. · I • • :--'fJ~ -. ••~ ,:, • • . : . .. .·•. '· ! - . .. The Lands and Deeds Registry, phapter 185 of the laws of Zambia. In this action, there are : three · (3-) ·gr_oups of Plaintiffs, th e 1s t Plain tiffs are one thou ~·~ ·:t_ .f;,~-ir. llundred and twenty-seven (1427) . The lis t of th e 1st Plein.tlffs has not b een amen ded for those u nder Mp elmebe Drilling Co1npany neither that of the 2 nd Plaintiffs who were under Techpro numbering sixty (60) n or that -J2- . .. . of the 3 rd Plaintiffs under. ZCCM clubs numbering six (6) and, other employees numbering sev.en hundred and sixty-three (763). In regards to the Defendants, there was similarly no amended . . numbe~s of the Defendants 1nade except that counsel for th_e 3 rd Defendant stated that he· only had eleven Defendants falling under the 3 rd Defend-~t in cause lt_~t .2.008/HP /0255. The 4 th Defendant appears . t_o be in person solely and had appeared to be represented. by counsel Mr. F. Chalenga. 4th Defendant's counsel stopped attending court and no reasons were given to this Coll!"t. At the_.status conference, Ms Mbaluku informed this Court that ~he. was . the 0ne representing all the Plaintiffs in the • consolidafed C?,uses of 2008/HP /604, 2008/HP/0255 and 2009/HK/258 whereas Mr. Chizu was representing all the I)~±'~iidant::5 .. It. however, was revealed that some Defendants \¥ere __ in person such _as Mr. Ambidwire F. who was represent~_g himself ·a:nd· ot~er~ like him . . , .. ,,.~ Having concluded' that ther:-e .v,as representation for all involved ~- . . in the consolidated cause list an ar.nended writ of summons and statement of claim \Vere ·filed or{ 13th February 2018 and the defence to the amended stat ement of claim and counter claim was filed on behalf of Hie 3~cr Defendants on 27th September, . 2018. It took time to have the case records brought before this . \_ . Court. The Plaintiffs were claiming the following reliefs: . .. (a) A declaration that the 1~1'3:intiffs are the sitting tenants ' entitled to first priority to purchase the houses they occupied . -J3- / ) as employees of ZCCM seconded to other institutions or employees of ZC~M's· wl:iolly"_"owned subsidiary companies . .. . - thus had a working relationship with ZCCM. (b) An order that the_ offers n1ade-to the 2nd Defendant who are ZCCM employees but not sitting tenants were v.rrongful and should be cancelled. = · (c) An order that ZCCS~M offers the houses iri question to the Plaintiffs. (d) A declaration that the title ·deeds, if any, issued to the 2nd Defendants .· who are non-sitting tenants v.rere v.rrongly . . mistaken and / or irregularly issued and should be cancelled; (e) An order for possession of houses were the Plaintiff were evicted and damages for vvrongful eviction. . . (f) Interests thereon (g) Costs of and incidental to this action. The amended statement ' ~f claim avers that the 1 st,2nd and 3rd Plaintiffs were all sitting tenants in . ZCCM house~ which they occupied by virtue 6f their ~n1.ployrnent. ~: . ) That the 1st Defendant was · .. at all . ·material times a parastatal .. company registered under· the law;:, of Zambia in which the Government of the Republic of Zambia was a majority shareholder. . ... . - ✓- • That the 2nd Defendants weri:\--~mployees of ZCCM at various Divisions who did not live in the .houses in question. . . ·. . That the Government of the Republic of Zambia as a majority shareholder in Zambia formulated a home empowerment policy to benefit sitting tenants in go,,ernment, council and parastatal organisations houses. -J4- - . .. That contrary to the decision of the majority shareholder, ZCCM . offered houses to the 2 nd Defendants who were non-sitting tenants . ' '( ' .- -.. ' That ZCCM went contrary . to_ its own acknowledged rules that priority to purchase houses was to sitting ten.ants. The 1st and 2 nd Plaintiffs took the matter to the Industrial Relations Court (IRC) which ruled in their favour. The 1st Defendant has perfected the IRC Judgement by starting to . , make offers to the Plaintiffs but at the same~time processing title ' deeds for the 2 nd Defendants for the same houses . The 1st Plaintiffs . . were directed by the Supreme Courf.to reinstate the case_ in the High Court which has povver _t~ cancel a conveyance and title deeds which were irregularly issued.to non-sitting tenants. That as a result of the wrongful issuance of offers and title deeds, . , some of the 2 nd Defendants evicted so·me Plaintiffs and are now currently in possession of the houses wrongly. The Plaintiffs paragraphs (a)to (gJ. therefore are claiming as above outlined 1n Counsel for the 3 rd Defendants filed ·an amended defence and a . . counter claim to the amended statement of claim. In the defence it .. · ... was averred that paragraphs 1,2 ·Eind 4 of the Plaintiffs' claim were within the Plaintiffs' knowledge and did not show any group of the , ,· . . . . 3rd Defendant alluded to in paragraph 3,' . .:. -:. That paragraphs 5 and 6 are admitted but will clarify that not all Plaintiffs live in the subject houses as the Defendant listed under ' ' Chingola are in occupancy of the _l::1ouses. -J5 - That paragraphs 7,8 and 11 of the amended statement of claim are admitted and that the Defendants will clarify that they were . . legally offered and purchased the properties to which they hold - . ~ / -·•. . title as former employees of ZCCM and sitting tenants. That the "·3 rd Defendants totally deny paragraphs 9, 10 and 12 in that the Defendants were entitled to purchase the houses as sitting tenants and employe;~_ of · ZCCM and _·that they had propriety interest since the sale was part of the negotiation involving the Union, the Government and ZCCM. I Th8:t the Defendants parfially adn1it co'ntents of paragraphs 13 and 15 of the amended statement of claim but clarify that the matter alluded to by the Plaintiff in ·the . Industrial Relations Court was . . different and not binding on .the Defendants. Further that Teddy Puta and Others are _involved in a forum shopping in -different Courts such as ~ dola, Kitwe and Lusaka and that some maters were dismissed and th~ surviving one . was consolidated to the Lusaka matter under cause no. 2008/HP/0255. , That the Defendants deny paragraph I°4 of the said amended statement of claim becau_se · ZCCM has not perfected the said . . Judgment since an injunction __ was " granted under cause no. 2008 /HP/ 0255 which is part of the pleadings. . . That the Defendants deny para'.graphs 16, 17 18 and 19 and will repeat paragraphs 4 and 5 hereof ·and :put the Plaintiffs 'to their strict proof since the Plaintiffs are not entitled to any claim at all and are merely abusing court process. · That the defendants deny contents of paragraph 20 ofthe·Plaintiffs statement of claim and aver that the Defendants are the legal -J6- owners of their respective houses which they currently occupy and hold valid certificates of title. The Defendants have suffered a lot at the hands of the Plaintif~s by being hauled from court to court, in N dola, Kitwe and Lusaka. The Defendant counter claim as .>follows: That _ the Defendants repeat ·paragraphs 4,5 ,-6,7,8 and 9. of the '. defence and that despite the clear legal ownership of the houses, the Plaintiffs have ?een making unjustifiable claims leading to inconveniencing and harassing the Defendants. The Defendants furthe:;- counter claim against Plaintiffs for order for: i. Damages for inconvenience suffered at the hands of the Plaintiffs, ii. Compensation fo~ the wild claiming of the Plaintiffs over the houses, iii. Interest on the ~one.y found due, iv. Any other relief the court may deem fit, v. Costs. The evidence for the Plaintiffs was_.given by four (4) 'Aritnesses. The first ~tness (PWl) Mr. :Elias Kangwa Chanda a resident at house number 6524 Mopani street Kabuudi North Chin.gala and a ' former employee of MpeleJnbe D:i-"illing Company a subsidiary of ., ZCCM testified that ZCCM did not. sale the houses to its sitting tenants of its subsidiaries. ZCCIVI in.stead offered the houses to its direct employees despite not being _ sitting tenants as was the directive of the Republic of Zambia according to the rules governing the sale of ZCCM houses to Zambians. · PWl referred to the -J7- . , Plaintiffs buI?-dle'of document at pa~e 1. According to him clause 2 , was about eligibility and in particular clause 2(i) which stated that priority will be given to sitting teI?-ants. He further referred to pages 3 and 4 of the same bundle of documents which are Newspaper cuttings emphasizing that houses were to be sold to sitting tenants including subsidiary ' . companies and that at ·~age 4 ·of ~: ~aid Newspaper cutting ' referred to page 19 of the Defendant's bundle of documents filed on 18th July, 2011 . a Judgment_ of the Kennedy Kalunga and Others v ZCCM (ll which --~~cording to him moved ZCCM to -start issuing offer letters to employees=ofthe subsidiary companies such as himself, as is found at page 8 of the Plaintiffs bundle of documents and others, that is at pages 8 to 13. ':1 · Some of the Plaintiffs ·were given offer letters whereas others did not receive since the process was stopped. Those with offer letters for the same houses which were also offered to ZCCM's direct employees and some of whom were issued ,m.th title deeds later on. It is, according to -PWl, the practice ~f.°dealing with both parties which has brought confusions -~~here sitting tenants occupying the houses have not been issued with, title deeds but non-sitting tenants have been issued \}.rith title· deeds. PW 1 added that 15 members of the Plaintiffs were removed from their house by what was later found to have been a writ of possession obtained fraudulently and the 15 are still trying to regain their houses. There is an injunction at page 27 of the Plaintiffs' bundle of document ·where the Court stopped the 1 - • . . . . ... • • issuance of title deeds concerning houses whose matters are -JS- pending before' Courts. PWl referred to page 3 of the Plaintiffs __ bundle. of documents_, a letter written to ZCCM for the title deeds . At page 5 of the same bundle of documents is a letter from ZCCM which according to him indicates that the matter has been settled but at page 6 is an affidavit to strike out writ of summons portraying'·that ZCCM were off~ring letters to Mpelembe Driili:µg . . . . ~d Tech pro employe,. The · Supreme -Court had referred the matter to this Honourable Court to cancel certificates of titles . ·wrongly issued. PWl was aware that ZCCM -had refunded money paid to it by the direct employees who had been offered the houses where the Plaintiffs were ·sJ.tting tenants and at pages 40 to 45 is a list of employees refunded money they had paid for the said houses . and 25 percent was given as interest to each one of them. . PWl concluded that .this Honourable Court ought to cancel the certificates of title issued to" non-sitting tenants of the ZCCM direct employees. In cross-examination by Mr. Chizu, PWl agreed that at that moment the houses'-belonged to ZCCM :' H e agreed that ZCCM has its own direct employees. PWl agreed that the 1s t Defendan~_ is zpcM and the others, Grace Chishimba and others had processed title deeds and they should be refunded the. money. PVvl h~sJ1ot yet obtained a certificate of title. He is aware that Grace . Chishimba and others have certificates of title issued by the · Ministry of Lands which issues them PWl reiterated that the title deeds were wrongly issued to her, she was not a sitting tenant and so where others like her. The 3 rd Defendants were . offered · houses where there were sitting ' ·-J9- tenants. He agreed that at · page 1 of the Plaintiffs bundle of , document referred to the rules governing the sale of ZCCM houses. According to clauses 2 (i) (ii) and (iii) the 3 rd Defendants qualified to be sold houses. At page 2 of the same document, clause 3 refers to ineligibility. Clause 3 (iii) refers to direct employees that they ' were ineligible to be sold. He agreed that according to the rule he 'vvas not eligible a:ad th13.t Wf:lS the reason the 1s t Defendant was sued and the Court held that the employees of the subsidiary · companies who were sitting tenants were eligible to buy the houses according to the directive of the Republican President then , late Dr. Chiluba. The judgment of Kennedy Kalunga is still effective, it has not been appealed against. Cross-examined by 2 nd Defendant Mr. Ambidiwire, PWl confirmed that he sued 2 nd Defendant as an employee of ZCCM who was offered a house where he ,;ias not a sitting tenant together v.r:ith other ZCCM employees. PWl denied knowing that 2 nd defendant was offered the house in 1997 and was issued vvith a title deed in . .i 2007. P'ATl denied. paying rent for the house he was occupying and also refused that Mpelembe Drilling had offered to be paying rent for its workers. P'AT2, Mr. Teddy Puta's evidence is that he was an employee of Mpelembe Drilling company a :. subsidiary of ZCCM who was allocated house no. 14 Matirnba· Road Hellen Kaunda. He worked for Mpelembe Drilling from 1994 to 2005 when he quit work. He referred to his last payslip at page 15 of the Plaintiff's bundle of documents_ He was evicted from the house in 2014 which was said to have been offered to the 2 nd Defendant, Ambidiwire Friday . He -JlO- was in the group case of Kennedy Kalunga and therefore he 1s waiting to have his ho~se .back. Under cross examination by Mr:-Mbalashi, PW2 agreed that he was allocated the house in 1997 au,d stayed .~here up to 2014. He was evicted bec.~use it was erroneously concluded that he stopped work in 1995. He lost the case at court and was eviGted but he appealed to the Supreme court and the case was referred back to this Court for re-trial .and he has not changed anything-in his testimony from the start of the case to date. He was offen~d to buy the house and paid cash all he is· \Vaiting for are title deeds. Cross examined by the 2 nd Defendant PW2 agreed that he knew 2 nd Defendant very well they worked together at number 1 shaft in Chililabombwe but they had never visited each other at their homes. The 2 nd Defendant had not informed PW2 that he was living •in his house. PW2 agreed ·suing the 2~d-_ Defendant after losing the case in the High Court and that he wa~-very much a,vare that the 2nd Defendant has an offer letter for the same house as well as title deeds. In re-examination he clarified that he was before this court for an order that the court hears the case for cancellation of title deeds . ' issued wrongly to 2 nd Defendant an~ others. PW2 and 2nd Defendant have sued individually not as a group in their case for said house. PW2 lives ,· at house number T121 Lubenaele in Chililabombwe after 2 nd Defendant evicted him. b ·• However, the Supreme Court ordered a re-trial before ·the High Court -Jll - PW3 was Mr. Geoffrey Chomba who started work for ZCCM in 1994 and was later seconded to the clubs. When houses were offered for sale he was not offered instead the· house he was occupying was offered to someone else. He was referred to clauses 2 (i) and 2 (v) and emphasized that he was entirely relying on the amended statement of claim and writ of summons. (¢ourt noted that the witriess was in a wheel 'chair but was able to testify) . ~---~ Under cross examination by Mr. Chizu, P\1/3 -confirmed that the houses the Plaintiffs were claiming have already been sold by ZCCM. The houses were to be sold to the sitting tenants like himself. He denied paying _rent to anyone.· He was. -a . tenant . to ZCCM as a direct employee of ZC_CM 9econded to Nkana Football club. The title deed for the house_ in question is ·in custody of the Court until tb.e Illatter be concluded . . Cross examined by Mr. Mbalashi, PVl/3 agreed that at page 1 of the Plaintiffs of bundle of documents, are· the rules tlYat ZCCM used to \ sell the houses. The houses were to be sold to the sitting tenants which was not done. He is occupying_ the house to date despite having not been offered the house. ,. ·' -.. PW4 Mr. Beston Chambeshi was an employee of ZCCM and that ZCCM offered houses t o ZCCM employees whereas there ·were other employees in the football and business ventures. The football and business ventures were not considered or given offers for the sale of houses they were occt:1-pying. The matter was taken to the IRC but when they realised that IRC had no jurisdiction over the -Jl2- ■ 1' • _, ' ' issues of houses, the matter was taken to the High Court were PW4, and another won the case. . . ........ . Under cross examination by Mr. Mbalashi, PW4 disclosed- that there v.rere no differences .for those on secondment and those in business v:_entures . Those on secondment from ZCCM were put in b1=1siness ventures. PW4 was a Sales Clerk at ZCCM and was a direct employee. Iri his c~~e he sued as .. ~ _indiyidual not.in a group . action. DWl was Mr. Donald Katete who attested that when he v.ras an employee . of ZCCM ·in Chingola· he bought one of the houses ...... \ . .,· advertised on the list for disposal. · He confirmed · that direct employees were advised_ to pick a house ac·~ording to the length of service and grade. He was given a letter of offer for sale of house Number 82-13 th street Nchanga South Chingola. In 1998 he received a letter of sale and in 2003 he was issued with a title deed. He lived in house from July 1999 t o December 2006 when he sold _it to ·-Grace Mukala who . .. is still living in the house. Under cross examination by Ms Mbaluku, DWI attested that there was someone living in that house and.' h~ did not bother whetr~er or not the house was vacant. He c~nfirmed that he was not a siting tenant in 1997 but he was awar~- that priority was given to the direct employees of ZCCM but according to clause 2(i) of t_he rules, priority was given to the sitting tenar:its he v.ras not aware that siting tenants were granted the right to buy the houses they had occupied as sitting tenants. He was n·o·t called to testify in any court concerning the said hou_se: Z~CM gave him the keys to the -J13- house and there was no one when he moved in. He did not know who had been living in.~he house before him. He became aware that in 2009 one ··Muyamba had been living in the house . Muyamba evicted Grace Mukala who went back in and is still in the house. Cross examined by Mr. Mbalashi DWl claimed that prior to 1996 . he had lived in the same house and there was no claim until Grace '\ . Mukala moved in 2009. Cross examined by . Mr Chizu, DWl responded that the houses for sale were listed and advert?-sed. He picked ()n No. 82-13th street because he knew it. He was referred to what ·was · titled as Plaintiff's bundle of documents filed on 15th November, 2017 Grace Chishimba and 10 Others v. ZCCM and Elias Chanda and DW 1 v;ras made to ·rea d paragrapp.1. DWl confirmed that they were vacant houses advertised by ZCCM to "All Concerned" The advertisement was displayed in air-sections cross ZCCM Divisions. There were standard forms for the applications as exhibited at page 2 of the same bundle· of documents. At pages 7 to 13 of the same bun~e is a list of advertised houses and the house in question is foun9- on page 12 serial number 179. ZCCM deducted from his terminal pay-:- for the said house . The contract of sale was between DW 1 and ZCCM. He sold the house to Grace Mukala later. -J14- DW2 was :tv:Irs Grace Mukala who confirmed that she purchased the house No. 82- 13th street Nchanga South Chingola from D\1/1 in 2006 and has since obtained title dee_ds in her name . In 2009, her children called her informing her that there were people thro~r:ing their property outside the yard claiming that they had won the case at IRC she rushed back home where she was shown a document' refer;ing to a house No. 82-13 street' N~hanga . . South Kitwe . She disputed that her house was not the one affected since the house was in Kit"".'e ~d not in Chingola. She was granted a stay of e~ecution·ofthe _IRC Judgement and they have been living in that house since. She how·ever received an eviction letter from Mr. Yamba Mushiki who was a part of the group that had gone to IRC. . Under cross-examination by Ms. Mbaluku, DW2 claimed that in 1997, DWl was living in that house. She however confirmed that in 1997 she was living in I":Jdola. She was ignorant about the rules governing the sale of the mine houses . She was -not aware at the time of purchasing the house that there were court cases she was referred to p_age 27 of the Plaintiffs' bundle of documents which indicated an injunction and she claimed that she had not s een it before and neither had she seen the caveat at page 34 of the same bundle of documents. .... . At page 4 of the same bundle of. documents has a document .,:· showing the Republican President's statement about Mpelernbe Drilling employees. being given the right to purchase the houses they were occupying as sitting tenants. She did not know that M r. Yamba Mushiki was a sitting tenant but that Mr. Katete .was. -J15- -- According to her, she bought the house innocently in 2006 and · • was not told by Mr. · Katete or Mr. Mushiki that there was an injunction in 2006·~ She sued Mr. Mushiki for trespassing in the case before court. DW3 Mrs 'Elizabeth N genda testified that she lives at .house number 76-13th str~et ~?hanga south Chingola. In 1996 she was working for ZCCM as a teacher at its Trust School. In 1997 ZCCM advertised houses for sale. It was those houses which were vacant. She applied for the house she lives in today, 76-13th street and wa_s given a letter of offer and later a contract of sale was entered into betwe~n herself and ZCCM. Her termin~ benefits she had worked for were forfeited to ZCCM for the said house. She was issued v.,ith a certificate of title for the same house in 2004. DW3 alluded to the documents in the bundle of documents. She attested that at page 1 was the advertisement of vacant houses, page 12 is a list of vacant houses and at serial numb~r 176 is the house in question: At page 56 is a letter of offer and she paid K12,460.00 At page 59 is. a contract of sale dated 30 th . . January, 1998. At page 65 is the amount she paid as fees . At page 66 is the assignment done :.by ZCCM to her and at page 70 is the certificate of title in. her name dated·-2004 . That it was after 10 years (2008) of her stay in that house that Mr. Sinkamba started harassing her to vacate the house. She had move in an empty house in 1998. The keys tq the house were handed over to her by ZCCTvI. ·-~- -J 16- Under cross-examination by Ms. Mbaluku, DW3 responded that the house was offered to her in 1997 and that between 1997 to 1999 there was the processing _of documents. She did not know who was living the in house in 1997 and 1998 but that the· house was advertised to be vacant. She did not know that Mr. Sinkamba was evictecf .in 1999 and that h~ obtained an inju~~tion. She was not aware that Mr .. Si~amba was a sitting tenant and. that was the reason for not moving in the house after purchasing it. She was referred to page 56 of the Plaintiff's bundle of documents dated 15th November, 2017 in particular paragraph 1, the letter of offer and she responded that it was not wrong for the letter to refer t o her as the sitting tenant when she was not at that time living in that house. Cross-examined by Ms . Mulobeka, DW3 ansvvered that the house in question belonged to ZCCM. ZCCM h a d the right to sell to their employees who were eligible • like herself. She is aware Mr. Sinkamba was not offered the house. DvV4 was Mrs Grace Chishimba a retired miner of house number 1 0- l 5 th street N change South Chingola. Her t estimony was that she was offered a house to buy in 1997- .by ZCCM. She accepted the offer and was sol~ the house where she lives up ' to now. ZCCM had no money to pay her the terminal benefits and the agreement was· that her terminal benefits would go towards paying for the house for wb}ch she has title deeds. She referred to Plaintiff's bundles of documents dated 15th November 2017 fron1 pages 1 to 32 as the documents concerning the said houses. -Jl 7- She claims that since 2008, she has been harassed and suffered , having her property thrown out and therefore her. wish to live in her house in piece. She was further cross-examined and attested that the house was dilapidated since 1997 and has not renovated it because of the court case and lived there for ten) 10) years before the other one started claiming it has his hous~ . It was the close of the case. The 1st Defendant opted to only make submissions calling no witnesses. For the Plaihtiffs in. cause No. 2008/HK/604 counsel Ms. Mbaluku submitted that the dispute · over the said houses started when the government announced its home empowerment policy designed to benefit sitting tenants in the government departments, council, and parastatal organisations such as ZCCfy1. The announcement by the then late President of the Republic of Zambia Dr. Fredrick Chiluba directed that all sitting tenants of houses belonging" to said institutes and organisations be sold the houses. However, the 1 st Defendant opted to sell houses to its own direct employees some of whom were not the sitting tenants. Counsel contented that the Supreme Court clarified who a sitting tenant was in the case .9f ZCCM v. Richarq. Kangwa121 and pointed out that the sitting tenants had _the first priority to purchase the house they occupied counsel further quoted the definition of who a sitting tenant was as clarified: -Jl8- " a sitting tenant as the person in occupation of the premises from 1996 to 1997 w hen the announcement was made" Counsel further submitted that the Su preme court in dicated that ZCCM was a parastatal organisation in which the · government was the majority shareholder. The government through the Pre~iden~ made a directive that ZCCM sales the· houses accor ding to t h e directive but ZCCM ignore d the instructions of the majority shareholders -and s old to non-sitting tenants wh o were its direct employees. Accor din g to counsel, the decision of managers of ZCCM · could not override that of the majority shareholders, since the President made the decision on behalf of the people of Zambia who are the majority shareholders. The Supreme Court therefor e ruled that ZCCM erred v_rhen it sold hou ses occupied by its subsidiary company, (Ndola Lime employees) to non-sitting tenants. The offers were cancelled and were made to N dola Lime employees who were entit led to fir s t priority to purchase the houses. Reverting to the case in casu, counsel argued that the case was instituted at the Industrial Relations cour t where that court granted: "(1) An injunction r estraining ZCCM from processing any t itles on the houses (as indicated at page 27 of the Plaintiffs bundle of documents dated 7 th Febru ary 20 17) (2) A caveat on ZCCM's main title [deeds] for t h e Copperbelt houses (pages 34 to 38) ·of the same bundle of documents". -Jl9- r . However; that ZCCM ignored the two orders of the Court and . proceeded to processing the assignments in the face of the injunction and caveats. ZCCM having disregarded the order, the title deeds were illegal and according to counsel the Defendants cannot rely on the wrongly / illegally issued titles. Counsel further contended that the Supreme Court had in other cases that followed ZCCM v. Richard Kangwa, Supra, such as . J zceM v. Banda and Victor Kangwa v. Bonny Khungu,13 Charnbeshi141 directed that such title deeds be cancelled. ZCCM did n?~ appeal against the Kangwa case instead perfected it by offering houses to the sittings tenants . Counsel further contended that it was wrong for the 3rd Defendant to n1islead the High Court that they were offered empty houses. It took them years to occupy the said houses because there were sitting tenants occupying them. Cm.;tnsel added that there are a plethora of cases where it has been emphasised that a sitting tenant has a right to the first priority to purchase the house he/ she has occupied as a sitting tenant, Lusaka City CouncH, National Airports Corporation v. Grace Mwamba !5 l and Felix Kanyimba v. Michael Musonda161 where the Supreme Court still reiterated its holding 1n ZCCM v. Richard Kangwa, Supra, and __ stated; "The sitting tenants have the first priority in the sale of houses .... we see no good ground to depart from our decision in ZCCIV! v. Richard Kangwa ~ase. The Government's will of em:powe~ing Zambians to own houses has to be accepted as majority shareholders in ZCCM and hence in its subsidiaries" -J20- According to counsel, this has been the trend irt cases where the sitting tenants have been overlooked. Counsel alluded to the case of Edith . · Nawakwi v. Lusaka City Council and Sikanyika!7l where the Supreme Court warned non-sitting tenants when purchasing houses that, " ... non-sitting tenant before accepting the oc~upied house ·by the sitting tenant has tlie-°'duty as a reasonable buyer to go to-the house to check if there ""was no one with a s~perior right to purchase it ... ,, Counsel argued that the. Piaintiffs in this case have the right to the first priority .and that there are still injunctions and caveat registered on the said houses . Counsel also referred to Chilanzi v. Chis ha and ZCCM (SJ v.rhere Supreme Court endorsed the payment of refund to a non-sitting tenant whose offer was cancelled. Counsel went on to cite the case of Rodgers Chama v. ZISC (9 J concerning the announcement of the Government on the sale of houses. To this end counsel referred to the c~§_e of l\Iuimui v. Chundal 101 where a further clarification .;,as pronounGed to the effect that the sitting tenants to quality buying houses must have an employment relationship wtth ZCCM. The Plaintiffs in this case qualify as sitting tenants with an employrr1ent relationship as employees of su!Jsidiary companies of ZCCM and those seconded to other institutions like clubs. Counsel concluded by submitting that law and equity prevail in this matter and the Plaintiff be granted their claims. There have been no submissions filed by the 1st Defendant, 2 nd Defendant and 4th Defendants in this case. The submissions -J21- titled as 2 nd Defendants are actually for the 3rd Defendant in ~his __ matter as indicated-in this Judgment. For the 3 rd Defendant Grace Chishimba and others of Chingola, learned counsel Mr. Chizu submitted that under short cause list No. 201_8[2008] HP 0255, the Defendants herein ,vere the Plaintiffs · against ZCCM Investments Holdings Limited on 11 th March, 2008, counsei\went on to re12tat~ the statemerit of clai1n and what the clients ,vere claiming which- has already been summarised by this Court. It must however be clarified that in this co_p.solidated cause list, there are three groups of Plaintiffs and four Defendants but the one captured as 5 th Defendant in the submissions (Davies Mushiki Yamb~) appears in group one of the Plaintiffs. Counsel submitted that the 1s t Defendant, ZCCM owned properties on the Copperbelt, ZCCM had its direct employees, the Defendants while the Plaintiffs mostly were working for the subsidiary companies or clubs for ZCCM. ZCCM could not manage to pay its employees their 'terminal benefits and negotiated with the Union to sell the housing units to its employees as party of the benefits and deducted money from its employees and ·sold them houses. ZCCT\1 did all the conveyance process and obtained title deeds for the 3 rd Defendants. The Plaintiffs, employees of the subsidiary companies sued in various-courts of Zambia seeking to be offered houses by ZCC]\t1. According to counsel, this -brought confusion in some courts decisions. In the Industrial Relations Court, due to the fact that IRC has no jurisdiction to handle cases involving certificate of -J22- title, the mater was referred to the High Court when the . Supreme Court guided that IRC ?ad no jurisdiction _to deal with property disputes and therefore this matter is before court to determine the -legal issues, which counsel highlighted as; 1. Who owns the houses subject of the proceedings? \ 2. Who between the Plaintiffs and the individual Defendants has priority of interest "in the subject houses. 3. Does ZCCM have property to self at this stage with specific reference to the houses, occupie.d by the- Defendants w:ho hold certificate of title? 4. In which circumstances can a certificate of title be cancelled? ·s. What is the effect of having cases from one court to another? 6. Can damages in these circumstances arise and payable to an inconvenienced party? Arguing the above issues, counsel pointed out that in this case the Defendants have certificate of titles whereas the Plaintiffs do not have at all as is indicated in the Plaintiffs' bundle of documents filed on 15th November 2017. Counsel referring to section 3~ of the Lands and Deeds Registry Act contended that the Defendants are legal ov.mers of their respective houses in dispute . He reinf?rced his argument by_ the case of Anti-Corruption Commission v. Barnet Development Corporation '11l where it was held that:' "under section 33 of the Lands , and Deeds Registry Act, a certificate of title is conclusive evidence of ownership of land in a holder of Certificate of Title" Contending the priority of interest counsel pointed out that there were two protagonists fighting for one house each, that there is an -J23- individual Plaintiff and individual Defendant and in the centre of controversy is ZCCM. According to counsel, the evidence of DW3 and DW4 reveal that they were offered vacant houses. The Defendants were direct employees of ZCCM. The contract of sale was concluded and certificate of title issued. The Plaintiffs on the other hand· had no letters of offer and. were only relying on the- political pronouncements that they should also be qffered. Counsel argued that they be offered other houses not were the Defendants have been living and have title deeds. The learned counsel buttressed his arguments with the case of Mudenda v. Tobbaco Board of Zambia 112l where 'at page J 13 the Supreme Court stated; "we hold the view that in this case although there may have been political pronouncement legal position has always been that a ..... . licensee is not a 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" According to counsel the Defendants' interest arose firstly by being offered first and secondly supported by section 33 of the Lands and Deeds Registry Act when ZCCM did all the conveyancing and obtained title deeds for the Defendants. On the question concerning whether ZCCM has property to sell, counsel _submitted· that it has been established by evidence that title passed from ZCCM to the Defendants now the legal o,m.1.ers of the property. Acco!ding to counsel ZCCM does not have any other property to offer to the Plaintiffs since title passed to the Defendants. Counsel argued that sections 33, 34 and 54 of the -J24- Lands and Deeds Registry Act give the right to a holder of title ' deeds to do as they please with their properties. They cannot be evicted and/ or ord<2red for repossession. ZCCM, if at all has to offer property to the Plaintiffs, has to find other property which are free not the Defendants. This court was also referred to the case of . Jackson Musonda Mukolo v. ZCCM· In~estments Holdings PLC and Trevor Nyambe(l3 J wherein this Court had come to a different decision by emphasising that Plaintiff was not a party to the Kennedy Kalunga ~nd Others v. ZCCM and that the offer for sale was made to the Plaintiff first and ZCCM had the conveyance and title deeds issued in the Plaintiffs name and that the title deeds had not been cancelled therefore there was no more house to be sold to the 2 n d Defendant. In that case, this Court had referred to the case of Hillas & Company v. Arcos Limited (l J were it was quoted that; "The problem for a court of construction must always be so as to balance matters that, without the violation of essential principle, the dealings of men. may as far as possible be treated as effective and that the law may not incur the reproach of being the destroyer of bargains" Counsel further cited Colgate Palmolive(Zambia) Inc v. Able Shawn Chuuka and Others (15l Counsel also ref erred to ZCCM v. Kangwa and Others referred to by counsel for the Plaintiff. According counsel the "sitting tenant" was obiter dictum as it \vas placed ··in inverted commas and -J25- (ii) Spou ses o r depen dants o f deceased employees who h ave been paid t h eir terminal benefits, (iii) Direct employe es of s ubsidiary companies, (iv) e x patriates and non-Zambians ... The rules described th e pu rchasing p rice and mode of paymen t . which I wi.11 not re-capture. It is clear that according to the rules and in particular clause 3(iii) direct employees of su.bsidiary companies such as the 1st and 2nd Plaintiffs wer e ineligible to . pur chase the · 1st Defendants' houses despite being sitting tenants. However1 at pages 3 ,4 and· 4 (a) of the same bundle of documents, the Repu1?lican President issued further announcements_ Virhere the pur chase pr ices were accorded to grades. of the employees and pointed out that even direct employees of the subsidiary companies were_ eligible to purchase houses they occupied as sitting tenants. This position was buttressed by the Supreme Court in the case ZCCM v . Ric hard Kangwa and other subsequent cases co_ncerning the sale of houses of ZCCM to sitting tenants and who ,~ere employees of the subsidiary companies. The case of ZCCM v . Ric hard Kangwa ?-sserted the position of the 1st Plaintiffs in this case. It was held ·that they were eligible and that they be offered to buy the houses they were sitting tenants in. Having been so guided, I run of the firm belief that the 1st Plaintiffs who h ad even been· offered letters for the sale of the houses they were living in as sitting tenants found at pages 8(offer letter for PWl) 9A, (con tract of sale fo r PW2) lOA (to Eunice Ivlagais a 2 n d -J 30- Plaintiffs) was an indication that the 1 st Defendant was perfecting the wrong occasioned to the 1st and 2nd Plaintiffs. I am in consonance with the holding that the 1st Defendant had not followed what the· majority shareholders had ordered it to do and in fact ~tarted perfecting the wrongs as indicated by the above paragraph. It is indicated that some ··of the 1st and-2nd-Plaintiffs paid the full purchase prices for the houses offered to them as indicated at pages 14 to 17 of ~he same bundle of documents, they also· had executed their part of contract. Turning to the 3 rd Plaintiffs, I am of the view that there was a misinterpretation of clause 2(v) of the~ules governing sale of the houses which need no interpretation at all. The 3rd Plaintiffs qualified to purchase the houses they occupied as direct employees seconded to subsidiary companies or business ventures ·of the 1s t Defenda11t, ZCCM. Failur e by ZCCM to offering them houses as sitting tenants vvith the first priority to purchase was out right contumelious of the will of the government. PW4, who was one of the parties to the case of ZCCM v. Banda and Chambeshi indicated that he won the case and \Vas not in court to claim any property but attested that those who ·were seconded to other subsidiary companies or were running business ventures for ZCCM were direct employees of the 1st Defendant ai1d were eligible to purchas e the houses they lived in. Therefore, in the totally of the evidence herein, I am satisfied that the 3 rd Plaintiffs have also made out their case on a balance of probabilities and -J31 - they ought to be given the first priority as they had occupied houses as sitting tenants and employees of ZCCM. I do not agree in this case that the 1st Defendant acted legally when it evicted those who were occupying the houses as sitting tenants and were in d irect and/ or through subsidiary companies . in relationship as employer/ employee. It was wrong to negotiate with only a minority of its workforce .... forsaking the ·. majority shareholders in coming up with their own way of selling . the houses, hence the late Republic President's involvement on the party of the whole-workforce directing that subsidiary companies of ZCCM were eligible. In my view, ZCCM can be perceived as short-changing the 1st, 2 nd and even the 3 rd Plaintiffs in this case. In this case, the 2 nd,3rd and 4 th Defendants' evidence indicate that they purchased the house which were advertised. It is clear in the evidence that when they \vere offered the said houses as claimed between 1997 to 1998, they did not bother to check the said houses. Failure to check out the houses, put them at their own peril because the law is very clear as was espoused in the Edith Nawakwi v. Lusaka City Council and Another that before buying a house the purchaser has a duty as a reasonable person to check the house if there was no one ·with a superior right to purchase it. Similarly, in the circumstance of this case, the Plaintiffs have a superior right. The 4th Defendant's case 1s the only one which 1s some what different from the other Defendants. She was the only one who purchased a house from a direct but non-sitting employee ofZCCM DW 1, Mr. Ronald Katete. DW 1 attested that he picked the house -J32- I . - : from the advertisement made by ZCCM, he did not check the house and when he was offered he did not check it all. He was given the keys and also title .deeds he stayed in the house which was vacant at the time of occupying it. DWI was ~ongly and illegally offered and issued the certificate of title. The qu·estion is can this wrong be extended to 4 th Defendant? I am of the view that in this case 4 th Defendant can be granted the . . right of a third party V1rho did not know that. the vender had been sued and Viras quick to dispose of the property despite the case being in court. She is accorded the equitable bona.fide pu·rchase for value as was held in the ca se of Evans Banda v. Abigail Mwanzar2 oJ that· ' "Any one dealing with land will be ·· pro~ected only by the general equitable doctrine that a . ~ona fide purchaser of a ' - legal estate for value will take it free of any equitable interest of which he does not have actual or constructive notice". Further, 4 th Defendant, in equity i's an innocent purchaser f:or value, as w as guided in the ca se of ZCCM and Another v. - Chilongo, Supra. 4 th Defendant attested that she knew DWl was the one who occupied the house before she purchased it from him. I however cannot hold the same for DW 1 who in my view must be followed by the 1st Defendant in order to perfect the wrong that was occasioned to the Plaintiffs in the case in casu. Having found in favour of the Plaintiffs, I believe that tb.er~ 1s nothing more that can be said in the face of evidence concerning the 3rd Defendant's counter-claim. The 1st Defendant who was a -J33- party to the cases concerning these cases were very much aware about the injunctions and caveats and the Supreme Court's position that the cases be heard by the court '?'ho is vested with jurisdiction to cancel title deeds. The counter-claim therefore is unsuccessful. I therefore, order all the titles issued out to. the 1st, 2 nd and 3 rd Defendants be cancelled 0forthwith and.that the Plaintiffs-who have , ' been short-changed be granted the right to purchase the houses they occupied as sitting tenants and as employees of the 1st Defendant. Following the order, it is only fair that the process be enhanced as is reasonably quick in the circumsta.11.ces of the case. I order accordingly. ·· , Right of appeal is granted to the Court of Appeal. Each party shall bear their own costs. -J34-