Zambia Consolidated Copper Mines and Anor v Khama (Appeal 71 of 2000) [2003] ZMSC 173 (4 December 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 71 OF 2001 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: - ZAMBIA CONSOLIDATED COPPER MINES LTD 1 st APPELLANT O. K. SIMWINGA 2nd APPELLANT AND DR. FRANCIS KHAMA RESPONDENT CORAM: Chirwa, Chibesakunda and Silomba, JJs on 4th December and December 2003 For the Appellants: For the Respondent: Mr. P. Chamutangi, Legal Officer, ZCCM In Person JUDGMENT Chirwa, J. S. delivered judgment of the Court: - Cases referred to: (1) (2) BEATRICE MUIMUI V SYLVIA CHUNDA SCJ NO. 50/2000 RICHARD KANGWA V ZCCM SCJ NO. 25/2000 This is an appeal against the High Court decision in which the respondent, Dr. Khama, was granted specific performance of the purchase of house No. 55 Lantana Avenue, Luanshya. : J2 : The facts which are not in dispute are that the respondent leased house No. 55 Lantana Avenue Luanshya from the 1st appellant at a monthly rent of K94,800. He had been a tenant since 1994. Under the Government Policy of house empowering, Zambians were decreed, as sitting tenants to purchase the houses they were occupying. This decree affected Government Pool houses, Council houses, Parastatal houses and also ZCCM houses. Elaborate guidelines were given on the implementation of this Policy. The salient guidelines were that the sitting tenants ought to be Zambians and in case of Government and Parastatal house, they must be employees of the Government or Parastatal or if they ceased employment, they have not been paid their terminal benefits and are awaiting their benefits. In case of Council houses, they need not be employees of the Council but merely Zambian sitting tenants; this is so because Councils provide social services, such as, housing to the general public and not necessarily to the employees. In 1997, ZCCM, which was major mining conglomerate, also started selling houses to its employees sitting tenants. As it was also in the process of privatisation and as it was not able to pay the huge redundancy packages, some retirees were paid in kind by selling to them houses. The houses need not be those occupied by the miner or ex-miner but amongst its stock. It is also the evidence of the respondent that non-miners were given two years to vacate mine houses. The 2nd appellant was an employee of the 1st appellant and was accommodated by the 1st appellant until he moved to his personal house in 1997. He has since retired from ZCCM. Whilst he was still employed by ZCCM he was offered house number 55 Lantana Avenue to buy by the 1st appellant and he accepted and paid full price. : J3 : When he was offered the house, he was told that there was a sitting tenant and when he paid for it he went to see the respondent and advised him to be paying rent to him as a new landlord. The 1st appellant also informed the respondent that the house had been sold to the 2nd appellant. The respondent never paid any rent to the 2nd appellant and he has not paid any rent to anybody since 1998. From the evidence, it is clear that the relationship between the 1st appellant and the respondent was purely that of landlord and tenant. The learned trial judge after considering the evidence before him he was of the view that this court gave two conflicting decisions on the implementation of Government policy on empowering Zambians to own houses and in this regard he was of the view that our decision in BEATRICE MUIMUI V SYLVIA CHUNDA (1) was in conflict with our earlier decision in RICHARD KANGWA V ZCCM (2). In the KANGWA case we took judicial notice of the fact that sales of houses to sitting tenants across the country in local authority and public institutions was a brain­ child and decision of the government which ultimately also owns ZCCM as the majority shareholder and that majority shareholders wishes overrode the authority over the wishes of mere nominees or directors. In the MUIMUI case we went further to state that being a sitting tenant was not the sole criteria in purchasing government or quasi government houses and that there were other important criteria to be taken into account such as being employee of the government or quasi government organisation. There is no doubt that ZCCM is a quasi government organisation in the sense that the government has the controlling majority shares and as such its wishes of the manner of liquidating its debt has to be taken into account. In this regard we do not see any conflict between the two cases. A further study of the : J4 : KANGWA case will show that KANGWA and others were employees of a subsidiary of ZCCM and the benefits of the majority shareholder's wishes had to apply to them in that although they were not direct employees of ZCCM, they were sitting tenants in its stock of houses. In the present case, the 2nd appellant was an employee of ZCCM and although not a sitting tenant he was offered the house as a way of paying off the Is' appellant's debt to him on his retirement. On the other hand the respondent was a mere tenant in the ordihOfy sense of landlord and tenant. It is accepted that he was a legal tenant but this relationship did not go any further. There was no offer for the sale of the house by the V' appellant. In respondent’s own evidence, he met officials of the P’ appellant in Lusaka over the same issue and nothing further has come out as they indicated that they would revert back to him after this case. We do not see how the court can come in to sort uncompleted business deal. We have not been shown that the tenancy agreement contained any provision that the respondent would be given the first option in case of sale of the house. On the contrary, there is evidence of offer and acceptance made to the 2nd appellant and the 2nd appellant has in fact paid fully for the house. It is unfortunate that the respondent took the attitude of not paying any rent to anybody from 1998. On the facts of this case, we allow the appeal. Although the respondent is a sitting tenant, he is not such a sitting tenant as to come within the general government policy empowering Zambians to own houses under that policy. The respondent has failed to establish his legal right to purchase this house as he has not shown any offer from the 1st appellant and he has also not shown that his tenancy agreement had a provision of first offer to buy the house. The house in