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IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA'Civil Jurisdict on)

BETWEEN

SIMON LWANDO AND OTHER TEACHERS

AND

2CCM INVESTMEN" HOLDINGS PLC SIMASIKWE AND OTHERS

Coram: Chibomba, Hamaundu and Kaoma, JJS

On 3rd March, 2015 and on 10th November, 2015.

For the Appellants: Present in Person.For the 1stRespondent: Mrs. J. Ndovi of Kaite Legal Practitioners.For the 2nd Respondent: Mr. C. Chizu of Chanda Chizu and Company.

J U D G M E N TChibomba, JS, delivered the Judgment of the Court.

Cases referred t3 : -

1. Zam bia Consolidated Copper Mines Limited vs. Richard Kangwa and Others S.C.Z. Judgm ent No. 25 of 2002

2. Phiraya Lai alias Piara Lai vs. Jia Rani A ir 1973 Del 1863. Zam bia Consolidated Copper Mines Limited and Ndola Lim e Com pany vs,

Em m anuel Sikanyika & Others Judgm ent No. 24 of 20004. Zam bia Consolidated Copper Mines Limited vs. C lem ent Kangote Appeal No 82

of 1996 ‘5. B eatrice M uim ui vs Sylvia Chunda, Appeal No. 50 of 20006. Buchm an vs. A ttorney General S.C.Z. Num ber 74 o f 1994 (unreported) at page

7. Mususu Kalenga Building Lim ited and Another vs. R ichm an’s Monev Lenders Enterprises (1999) Z.R. 27

8. Barclays Bank Zam bia Pic vs. Zam bia Union of Financial Institutions and Allied W orkers (2001) Z.R. 106

9. M udenda vs. Tooacco Board of Zam bia ACZ Appeal 49 of 199810. General Nursing Co jn c il o f Zam bia vs. Mbangweta 2008 ZR 105

APPEAL NO. 83/200S SCZ/8/291/2008

APPELLANTS

RESPONDENTS 2 ^ RESPONDENTS

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11. Richard Nsofu Mandona vs Zam bia National Com m ercial Bank Pic., Zambia National Oil Com pany Lim ited, and Attorney General (2008) Z.R. 23. Vol. 2

' 2 . Nationa Housing Authority vs. Chalitum elo, Appeal No. 19 of 200713. N. Dadjee vs. Tirupathi Devasthanam A ir 1965 S.C. 123114. Zam bia Consolidated C opper M ines Limited and O.K. Sim winga vs Dr. Francis

Kham a Appeal no. 71 of 200115. The Attorney-General vs. Marcus Kam pum ba Achium e (1983) Z.R.115. National Airports Corporation Lim ited vs. Regie Ephraim Zim ba and Saviour

Konie (2000) Z.L.R. 15417. Judith Mporokoso vs. Kerros M um bi SCZ Judgm ent No. 19 o f 201418. Frank Malichupa & Others vs. Tanzania-Zam bia Railways Authority(2008) Z.R.

11219. Valentine W ebster Chansa Kayope vs. Attorney General S.C.Z. Appeal No. 18 of

201120. Peter Milnis vs. W ilson Kafuko Chiw ala S.C.Z Judgm ent No. 3 o f 200921. J.K. Rambai Patel vs. Mukesh Kum ar Patel (1985) Z.L.R 220

O ther m aterials refgrred to :

1. The Constitution, C hapter 1 of the Laws of Zam bia2. Rent Act, Ch apter 206 of the Laws of Zam bia\3. High Court Act, Chapter 25 of the Laws of Zam bia4. State Proceedings Act, C hapter 71 o f the Laws o f Zam bia5. Suprem e Co jr t Rules, Chapter 25 o f the Laws of Zam bia6. H a ls b u r /s Laws of England, Volum e 27, 4th Edition.

The Apoe'lants appeal against the Judgment of the High Court at

Kitwe dated 20th November, 2008 which held, inter alia, that the Appellants

were no: entitled :o buy the houses in question.

The facts leading to this appeal are not in dispute and these are that

the Appellants were all employees of the Ministry of Education. They

occupied the 1st Respondent’s (Zambia Consolidated Copper Mines)

(ZCCM) houses by virtue of their employment as teachers who were

teaching in ZCCM school areas. The Ministry of Education had entered

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into an agreement with ZCCM to allow the teachers to occupy these

houses owned by ZCCM.

Following the Government policy to sell Government and quasi-

Governmental houses and following the process of privatising ZCCM, the

houses which the Appellants occupied as teachers teaching in the ZCCM

school areas were sold to ZCCM employees who were not sitting tenants

as ZCCM did rot have sufficient funds to pay terminal benefits amounting

to over K600 billion to its employees. So, ZCCM terminated the tenancy

agreement with the Ministry of Education which in turn advised the

Appellants of the sale of the houses by ZCCM to its employees. They were

requested to either vacate the houses or to enter into tenancy agreements

with the new owners, the 2nd Respondents, who had been issued with title

deeds.

The Appellants however, refused to vacate the houses or to enter into

tenancy agreements with the 2"a Respondents, claiming that as sitting

tenants, they were entitled to buy the houses in question. The Appellants

who in number were 470, including the 1s,Appellant, Simon Lwando, took

out a Writ of Summons against ZCCM and the 2"d Respondents, at the

Kitwe Hign Cou-t, in which they claimed the following relief:-

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“(a) A declaration that the Plaintiffs are sitting tenants and are entitled to purchase the houses they occupy.

(b) A declaration that the purported offers made to non-sitting tenants were wrongful and therefore, null and void.

(c) An order that the offers made to non-sitting tenants be cancelled.

(d) An order that the Defendant ZCCM offers houses to the Plaintiffs just like it offered to some teachers as sitting tenants.

(e) Costs and incidental to this action.1’

The learned trial Judge heard evidence from the Appellants which he

considered together with the submissions by the learned Counsel for the

parties. He came to the conclusion that the Appellants were not entitled to

purchase the hcuses in question on ground that being a sitting tenant was

not the only criteria when purchasing Government or quasi-Governmental

houses as there were other important criteria to be taken into account such

as being an employee of the Government or quasi-Governmental

organisation. And that in the current case, the Appellants were not at all

tenants of the hcuses they occupied as it was the Ministry of Education

which was the tenant and hence, the claim that they were entitled to

purchase the houses has no basis. So the Judge dismissed their claim.

In terms of the counterclaim by the Z^espondents, the learned

Judge found in favour of the 2nd Respondents and entered Judgment in

their favour ano ordered the Appellants to vacate the houses in question

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forthwith. He also awarded mesne profits against the Appellants from the

date the houses were sold to the 2nd Respondents up to the date the

Appellants would yield vacant possession. He also awarded interest on the

mesne profits at short term bank deposit rate from the date of the

counterclaim :o the date of judgment and thereafter, at the current bank

lending rate approved by the Bank of Zambia to the date of payment. He

further ordered that the quantum of the mesne profits be assessed by the

Depu:y Registrar. Costs were also awarded to the Respondents.

Dissatisfied with this Judgment, the Appellants have appealed to the

Supreme Court advancing six Grounds of Appeal in the Memorandum of

Appeal. These are: -

“1.

2.

3.

4.

TTiat the Learned trial Judge misdirected himself in both law and fact in holding that the Appellants were not tenants in the Respective houses they occupied from the 1st Respondent.

That the learned trial Judge erred in both law and fact in holding that the tenant of the various houses occtpied by the Appellants was the Mm stry of Education when the said Ministry of Education was not a legal entity capable to rent or occupy the houses.

The learned trial Judge erred in law in failing to recognize the significance of the relevant provisions of the Rent Act of the Laws of Zambta m relation to the Appellants who were in physical possession of the various houses of the 1st Respondent

I h® trial Jud9e misdirected himself in law when he orderedt h f l Apphellants forthwith vacate and deliver vacant possession of the various houses to the Respondents.

5. The Order against the Appellants for payment of the costs of theaction by the Appellants ro the Respondents was wrong and ouqht to be set aside.

6. The finding by the trial Judge for payment by the Appellants to the Respondent of mesne profits with interest thereon was wronq and ought to be set aside.”

The Appellants relied on their Heads of Argument that were filed on

31st Cetober, 2011. In support of Ground 1 and 2, which were argued

together, the Appellants began by inviting us to take judicial notice of the

Home Empowerment Policy formu ated by Government where there is a

sitting tenant in occupation. It was argued that it is the occupant who is

supposed to benefit from the Home Empowerment Policy. In support of

this argument, the Appellants cited the case of Zambia Consolidated

Copper Mines Limited vs. Richard Kangwa’ in which it was held that the

Home Empowerment Policy was the brainchild of the Government and a

sitting tenant in terms of the Home Empowerment Policy is the occupant.

And that it was the occupants who were entitled to benefit from the Home

Empowerment Policy. That however, in the current case, the sitting tenants

are the Appellants and not Ministry of Education, And that as such, it was

the Appellants who were entitled to benefit from the Home Empowerment

Policy as sitting tenants. And that the Respondents had never been sitting

‘enants. That it follows therefore, that the sitting tenants are the Appellants,

m support cf Grounds 3 and 4 which were also argued together, it

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was submitted that the Court below should have noticed that there was no

tenancy agreement signed between the Appellants and the Respondents.

Therefore, a claim for mesne profit could not stand as between the parties.

Further, that the Appellants lawfully occupied the houses and were

therefore, not trespassers. In support cf the above argument, the

Appellants relied on the case of Phiraya Lai alias Piara Lai vs. Jia Rani

Air2. 1 was argued that the issue of mesne profit is thus not applicable in

this matter.

In supoort of Ground 5, it was argued that since the Government

formulated the Home Empowerment Policy to benefit sitting tenants, the

Appellants reasonably believed the pronouncement from the Head of State

who is the representative of the people of Zambia and hence, the

Appellants invite the Court to take judicial notice of the pronouncement

passed by President Rupiah Banda which included all sitting tenants

including the teachers who have since received the offers. It was argued

that the pronouncement was a further clarification on who is/was entitled to

purchase the houses under the Home Empowerment Policy.

It was the Appellants’ further argument that they should not be

condemned in costs in trying to pursue their rights under the Home

Empowerment Policy as according to the Presidential Directives, all sitting

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tenants were entitled to purchase the houses they occupied. The case of

Zambia Consolidated Copper Mines Limited and Ndola Lime Company

vs. Emmanuel Sikanyika & Others3 was cited. It was argued that in that

case, the losing party was not ordered to pay costs as litigation was as a

result of Notices of information which got to the Respondents prompting

them to take up legal action. And that in the same vein, the Appellants

brought this case as a result of Government pronouncement which were

being circulated all over Zambia emphasizing that the sitting tenants were

entitled to purchase the houses they occupied in the ongoing Home

Empowerment Policy. That the Court should, accordingly, exercise its

discretion with regard to costs in this matter.

On the other hand, the learned Counsel for the 1st Respondent, Mr.

Ndovi, relied on t ie 1st Respondent's Heads of Argument. He began by

stating that the Appellants only filed one Ground of Appeal in the Notice of

Appeal but that in the Memorandum of Appeal, there are other Grounds of

Appeal, counsel, however, in responding to Grounds 1 and 2 began by

restating the evidence as foiiows:-

“(i) Appellants were sitting tenants

00 The tenancy agreement was between the 2nd wMinistry of Education. Respondent and the

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(iii) The Appellants were not direct tenants of the 1st Respondent but the Ministry of Education. The tenancy agreement was between the M iiistry of Education and the 1st Respondent.

The Ministry of Education applied for houses to accommodate Teachers and the houses were rented to the Ministry of Education and this arrangement was the same with other Government Ministries.”

It was submitted that on the above evidence, the Court below cannot

be fs-jlted for finding that the tenant of the houses in issue was the

Government. And that even the 1 ̂ Appellant, Lwando, conceded that the

tenancy agreement was between the Government and the 1st Respondent.

It was argued that ground 2 is academic. That in common parlance, people

employed by the Ministry are referred to as Government employees and

that the Appel,ants themselves told the Court below that the tenancy

agreement was oetween the 1st Respondent and the Ministry of Education.

This s.mply meant that the tenancy agreement was between the 1st

Respondent anc the Government of the Republic of Zambia. Hence,

Grounds 1 and 2 should be dismissed.

In response to Ground 3, it was submitted this ground cannot stand

as the Rent Act was neither pleaded nor was this argued in the Court

below.

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In response to Ground 4, it was submitted that there was no Defence

to the Counte- claim which prayed for an order for the Appellants to “vacate

the houses in issue; an order that the Appe lants pay mesne profit; interest

on (i ) above and Costs".

It was submitted that it is trite law that costs are awarded to the

successful party but that however, there are circumstances where, because

of the concuct of the successful party, costs are awarded to the losing

party. Such was the decision of this Ccurt in the case of Zambia

Consolidated Copper Mines Limited and Ndola Lime Company vs.

Emmanuel Sikanyika and Others3, where the Court had this to say:

Since this quia timet was provoked by some unhelpful statement ... circulars publicised by the employers and emanating from authorities trere will be no order for costs here and we do not disturb any orders that regard which were made below.”

instin

It was submitted that this Court has also stated that in certain

circumstances, such as where a losing party is defending a matter as an

administrator, in the interest of fairness, each party would bear their own

costs as was held in Zambia Consolidated Copper Mines Limited vs.

Clement Kanaote4 where this Court put it thus>

are mindful of the fact that the p,aintiff Fho . , d away ° n 25 A Pnl> 1997 and that the appeal was being defended byw T d £ £ °, hir 5tate and We ,eel that in the circurostances a fair order wou.d be that each party bears its own costs.”

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That it is trite law that a successful litigant who has not misconducted

himself is entitled to costs as of right and that in this case, there is no

evidence of any misconduct by the Respondents. Hence, this ground

should also be dismissed.

In augmenting the written Heads of Argument, Mr. Ndovi submitted

that this matter seemed to be turning on the pattern of sitting tenancy and

how the court has interpreted that under the sale of the ZCCM houses. He

however pointed out that the evidence on record is undisputed and this

evidence was that there was no tenancy agreement between the

Appellants and the 1st Respondent. Counsel referred us to pages 159 of

the Record cf Appeal and in particular, to the evidence of PW1, Simon

Lwando, who told the court below that there was no tenancy agreement

betweer the teachers and ZCCM but between the Ministry of Education

and the 1st Respondent. Counsel pointed out that this position was

repeated by the witness and that he admitted that there was no agreement

between themselves and the 1st Respondent which could have entitled

them to buy the houses. It was argued that it is on the strength of that

evidence that tne 1st Respondents argued that there was no legal basis

upon which the Appellants oan claim to be entitled to purchase the ZCCM

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houses. Counsel cited the case of Beatrice Muimui vs. Sylvia Chunda5

in which th.s court stated as follows:-

“Ws do not subscribe to the argument that being a sitting tenant is the sole criterion in purchasing of the Government or quasi Government houses in the current policy of empowering employees Government. We take judicial notice that the other important criterion is that the potential purchaser had to be an employee of the Government or quasi Government organization.”

ft was submitted that in the current case, the 1st Respondents being

or having been a quasi-Governmental institution, there was no evidence

that connects the Appellants to the 1st Respondents and therefore, the

decision by the court below is properly founded.

The learned Counsel for the 2nd Respondent, Mr. Chizu, also relied

on the 2 Respondents Heads of Argument. In response to Ground 1 and

Ground 2, it was contended that the statement that:

“In the present case the Plaintiffs were not tenants in the houses they occupied. The tenant was the Ministry of Education and Zambia Consolidated copper Mines. There were no tenancy agreements between the Plaintiffs and the owners of the houses ZCC M ...”

made by the learned Judge was made in a particular context because the

learned Judge had made findings that the tenancy agreement was with the

Ministry of Education. It was argued that it is an undisputed fact that the

Appellants were employees of the Ministry of Education and therefore, that

in this cor:ext the Ministry of Education was the tenant and that this is the

reason why rentals were being paid by Ministry of Education and not the

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Appellants. And that this is evidenced by the letter dated 29th May, 1999

advising one of the Appellants that the Ministry would no longer pay

rentals.

Similarly the communication on the sale of houses was made to the

Ministry of Edjcation in the letter dated 22nd July, 1998 and not to the

Appel'ants individually. And that Article 44 (2) (e) of the Constitution cited

empowers the President to establish a Government Ministry and hence, the

issue of legal capacity in this particular context does not come into play as

a Ministry can enter into valid tenancy agreements through its officers.

Therefore, that if the Ministry of Education hac no capacity to enter into any

valid agreements, then the tenancy agreement in question was a nullity and

that, ir the same vein, the Appellants' occupation of the ZCCM houses

which was as an incidence of their employment by the Ministry of

Education, was a nullity and, therefore, these proceedings were unlawful

and must, therefore, be dismissed.

In response to Ground 3, it was submitted that it is not a disputed fact

that the Appellants were accommodated in ZCCM houses as an incidence

of their employment, but that however, Section 3(2) of the Rent Act,

Chapter 206 of the Laws of Zambia does not apply to the Appellants in this

case. Section 3 (2 ) provides

“The Rent Act shall not apply to a dwelling house let to or occupied by an employee by virtue and as an incidence of his employment.”

it was further argued that this issue snould not be raised as a ground

of Appeal as it was not raised by the Appellants in the Court below and that

the learned trial Judge did not allude to it. The case of Buchman vs.

Attorney General6 was cited where it was held that a matter which was

not raised in the lower court cannot be raised in a higher court as a ground

of appeal.

It was argued that this was also emphasized in Mususu Kalenga

Building Ltd and Another vs. Richman’s Money Lenders

Enterprises7.Where we put it thus:-

“We have said before an we wish to reiterate here that where an issue wasnot raised in the court below it is not competent for any party to raise it inth.’s court”

Further that in Barclays Bank Zambia Pic vs. Zambia Union of

Financial Institutions and Allied Workers8, it was held that where an

issue was not raised in the court below it is not competent for any party to

raise it in the Appe late court.

In response to Ground 4, it was submitted that the Appellants

admitted in the Court below to having disobeyed the two letters from ZCCM

which informed them that the houses in question had been sold to new

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tensnts and that new tenancy agreements should be entered into with the

new owners as the tenancy agreement between the Ministry of Education

and ZCCM had been terminated. Therefore, that the finding of fact by the

learned trial Judge that there was currently no tenancy agreement

subsisting between the Appellants and the Respondents cannot be faulted

and hence, the Appellants were in unlawful occupation of the said houses

and they must vacate.

It was argued that the Appellants were never offered the houses in

question and that there was never a tenancy agreement and that it was an

undisputed fact that the 1st Respondent offered and sold the houses in

issue tc the 2nd Respondents. The case of Mudenda vs. Tobacco Board

of Zambia9 was cited in which we stated that:-

“We hold the view that in this case although there may have been political pronouncements, the 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 rn except where there has been a firm offer and acceptance of that offer to purchase that house”

In response to Ground 5, Counsel cited Order 40 of the High Court

Act which provides as follows:-

of the“Under the denomination of the costs is included the whole

y .inCUrred by either party 3n account of any cause or atter and in enforcing the decree or order made therein such as thP

expenses o. summoning and of the attendance of the parties and w itn p i

referees°” nn9 C° P'eS ° f d° CUme" * ' th°

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Counsel argued that the Respondents having incurred costs for legal

representation in this matter, they are entitled to costs. That it is also trite

that costs are in the discretion of the courts and that in this case, the

learned trial Judge found it worthy to award costs to the Respondents.

And that the Appellants had not shown that the learned trial Judge did not

judiciously exercise his discretion. As Authority, the case of General

Nursing Council of Zambia vs. Mbangwe.a” was cited in which this

had that it rs trite law that costs are awarded in the discretion of the

court and that sue, discretion however, must he exercised iudiciousiy and

that costs shall follow the event. However, that in this particular case the

Appellants did not obtain leave to appeal against the order of the courts

- hence this ground is incompetent. As authority the case of Richard Nsofu Mandona vs Zambja Natjona) Commercja( ^ p(c

National Oil Company Limited, and ^ ^ ^

^ - s h e l d t h a t n o appeal on costs lies to the Supreme Court withoute of the Judge in the Court below. Therefore, that the order was not

wrong and should not te set aside.

In response to Ground fi ;t ,6, it was contended that the learned trial

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profits to the 2nd Respondents. The case cf Phiraya Lai Alias Piara Lai

Vs. Jia Rani Air2, was cited in which it was held that-

Mesne profits are damages paid in resoect of wrongful occupation ofimmovable property on the basis of loss caused by the wrongfulpossession of the trespasser to the person entitled to the possession ofthe propery. It can also be said to be payment made to the Landlord in lieuof rent where the occupation remains beyond the termination point of the tenancy.”

It was submitted that the Appellants admitted in the Court below to

having disobeyed the letters in question which informed the Ministry of

Education that ZCCM houses had been sold to new tenants and that new

tenancy agreements should be entered into with the new owners and the

second letter which confirmed that the tenancy agreement between the

Ministry of Education and ZCCM had been terminated and advised the

occupants of the said houses to enter into tenancy agreements with new

owners.

it was submitted that since the Appellants -efused to do so, and since

the existing tenancy with the government had terminated, then the

Appellants therefore became trespassers and as such, they were in

wrongful occupation of the said houses. Hence, the learned trial Judge

correctly awarded the mesne profits in lieu of rental as the Appellants'

remained in occupation beyond the termination point.

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Counsel submitted that it was clear from the record that the

Appellants did not in fact challenge the counter claim at all. And that in the

case of National Housing Authority vs. Chalitumelo12, the issue of

mesne profits was adequately discussed and was defined as: -

T h e profit lost to the owner of land by reason of his having been wrongfully dispossessed of his land” and also as "money that a landlord can claim from a tenant who continues to occupy property after his tenancy ends, the amount being equivalent to the current market rent of the

It was submitted that this Court stated that depending on the

circumstances, it would entitle one to mesns profits in the event of a

breach. It was Counsel's submission that the Respondents were therefore,

entitled to mesne profits because of the following reasons:-

property.

(i) Tenancy was terminated

(ii) The Appellants were advised to enter into new tenancy with the new landlords (the Respondents)

new tenancy agreements

«..w„UIlV;W u VIII Ult? OLidte.

(iv) The Respondents were deprived of thebought but continued paying rent inr-mi nuinn ”

ie use of houses they had in the houses they wereoccuoying.

In response to the argument concerning interest, Counsel cited the

case of N. Dadjee vs. Tirupathi Devasthanam Air13, In which it was held

that interest was an integral part of mesne profits and therefore can be

allowed in computation of mesne profits. That an order for mesne profits

should not tnerefore be set aside as the learned Judge was on firm ground

when he awarded interest on mesne profits.

In augmenting the 2nd Respondents' Heads of Argument, Mr. Chizu,

submitted in response to the case of Zambia Consolidated Copper Mines

Limited vs. Richard Kangwa’ cited by the Appellants that their argument is

based on the Government Directive on the sale of houses and Home

Empowerment Policy but that the 2nd Respondents' argument is that the

same Government also had a say when it was deciding that the houses in

question be surrendered to the 1s* Respondent who, subsequently sold

them to its employees, the 2"d Respondents. That this is evidenced at page

17 of the Record of Appeal.

As regards Ground 5 which urges this court to take judicial notice of

the pronouncements by President Rupiah Banda which included the

pronouncements that sitting tenants Including teachers should be sold the

houses; Counsel argued that this Court is not bound by political

pronouncements and that in any oase, if a, all there were any

pronouncements made by President Rupiah Banda, by the time of the said

pronouncement, this matter was already b e fo re this Court and hence, this

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Court cannot take into account sentiments from a President or some

authority, in determining legal issues which rose sometime back. Counsel

urged this ^o irt not to entertain such arguments. He, accordingly, urged us

to dismiss “his Appeal for want of merit with oosts.

In reply, the Appellants argued saying that it does not take one to be

a lav/yer to state that the sale of houses was a brain-child of the

Government and hence, the Appellants did not see any reasons why the

learned Counsel was saying that this Court should not take into account

what ttie Head of State said because they are the ones who actually moved

this issue into motion.

.-urthe-, that it was not the Government which was supposed to buy

the houses or which was the sitting tenants but the Appellants who were

living in those houses and are still living there. Hence, this Appeal should

be upheld as it has merit.

We have seriously considered this Appeal together with the

arguments in the respective Heads of Arguments and the oral submissions

by all the parties and the authorities cited. We have also considered the

Judgment by the learned Judge in the Court below. It is our considered

view that the major question raised in this appeal is whether or not the

Appellants were entitled to be offered to purchase the houses they

occupied by the 1s' Respondent. For convenience, we shall consider

Grounds i and 2 of this Appeal together because they raise similar or

related issues. However, before proceeding to consider the two Grounds of

Appeal, we have found it imperative to restate the salient points, which we

consider relevant to the determination of this Appeal.

These are that it is not in dispute that the Appellants were all teachers

employed by the Ministry of Education and that they were teaching in

ZCCM School areas. And that they all occupied the houses in question by

virtue of a lease agreement between the Ministry of Education and the1st

Respondent. It is also not in dispute that the 1st Respondent did not offer

the houses in question to the Appellants following the Government

Directive to sell quasi-Governmental houses to sitting tenants. It is also not

in dispute that the 2nd Respondents were all ex-employees of the 1st

Respondent who had not been paid their terminal benefits following the

privatization of ZCCM. It is also a fact that the 2nd Respondents were not

Sitting tenants of the houses in question. It was also common cause that

the 2nd Respcnoents were offered and they did purchase the houses in

questior from the i« Respondent which were occupied by the Appellants

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by v'rtue of the said lease agreement between the 1st Respondent and the

Ministry of Education.

It was also common cause that the Appellants received two letters

from their employer, the Ministry of Education, advising them that the lease

agreement wi:h the 1st Respondent had been terminated and that the

houses they occupied had since been offered and sold by the 1st

Respondent to its former employees, the 2nd Respondents. They were also

advised to either vacate the houses or to enter into direct lease agreements

with the new individual owners. The Appellants, however, refused to do

either arguing that as sitting tenants, they were entitled to benefit from the

sale cf the houses because they were the legal sitting tenants and

Government employees. So it is a fact which must be acknowledged that

none of the Appellants received any offer to purchase a house from ZCCM.

the institution that owned and was selling the houses.

Coming back to Grounds 1 and 2 of this Appeal, the thrust of the

Appellants’ argument in support of these two Grounds is that the finding by

the learned Judge that the Ministry of Education was the sitting tenant of

the houses in question and not the individual Appellants, was erroneous as

it was against the Home Empowerment ^olicy formulated by the

Government of the Republic of Zambia under wnich the sitting tenant is the

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occupant who is supposed to benefit from the said policy. In response, the

Respondents’ position was to support the said finding by the learned Judge

whicn we have already alluded to in the summary of their respective

submissions above. We have considered the arguments by the parties and

the findings by the learned trial Judge. The question to be considered is

whether the learned trial judge was on firm ground when he found that the

Ministry of Education and not the Appellants was the tenant of the houses

in question. In coming to his decision that it was the Ministry of Education

which was the legal tenant, the learned Judge considered t ie eligibility to

purchase Government and quasi-Governmental houses under the Home

Empowerment Dolicy. He also considered t ie cases cited by Counsel for

both parties which included:

1. Beatrice Muimui vs Sylvia Chunda5;2. Zambia Consolidated Copper Mines Limited and O K

Simwmga vs Dr. Francis Khame14; and3. Zambia Consolidated Copper Mines Limited vs Richard

Kangwa and Others1.

In those cases, we made it clear that being a s tting tenant was not the only

criteria in purchasing a Government or quasi-Governmental house as there

are other important criteria to be taken into account including being an

employee of the Government or quasi-Governmental organization.

In arriving at his decision that the M'nistry of Education and not the

Appellants was the legal tenant of the said nouses, the learned Judge put it

thus -

“In the present case, the plaintiffs were not tenants in the houses they occupied.

Ths tenant was the Ministry of Education and the plaintiffs were mere beneficiaries in the tenancy between their employer, Ministry of Education, and ZCCM.

There was no tenancy agreement between the plaintiffs and the owners of the houses, ZCCM. The plaintiffs were not employees of ZCCM. They therefore had no basis upon which they can claim the houses should have been sold to them.

........Their claims thus fail and are dismissed”.

The Appellants have forcefully attacked the above finding by the

learned Judge. However, our firm view is that the two Grounds of Appeal

attack findings of fact made by the learned Judge as to who the legal

tenant was between the Ministry of Education and the Appellants. In the

case cf The Attorney-General vs. Marcus Kampumba Achiume15, and a

plethora of other cases, we have repeatedly made it clear that the appellate

Court will not averse findings of fact made by a trial court unless it is

satisfied that the findings in question were either perverse or made in the

absence of any relevant evidence or upon a misapprehension of the facts

or that they were findings which, on a proper view of the evidence, no trial

Court acting ccrrectly can reasonably make. The question therefore is,

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have the Appellants shown that the finding by the learned Judge was

perverse or made in the absence of any relevant evidence or a

misapprehension of the facts, or was it a finding which on a proper view of

the evidence, no Court acting correctly can reasonably make? Have they

satisfied any of the above parameter so as to persuade us to reverse the

above findings by the learned Judge?

Perusal of the evidence on Record has shown that the tenancy

agreement was between the Ministry of Education and ZCCM, and not the

individual Appellants, a fact which the Appellants’ own witness, PW1,

conceded to under cross-examination. Secondly, throughout the tenancy

period, it was the Ministry of Education which paid rentals and not the

Appel,ants. Thirdly, the correspondence on Record was between the

Ministry of Education and ZCCM, and not any of the Appellants. Therefore.

there is no bas.s upon which we can reverse the findings of fact by the

learned Judge as the finding that it was the Ministry of Education that was

the legal tenants and not the Appellants is/was supported by the evidence

on Record.

As regards the Appellants' argument that the Ministry of Education

was no: a legal entity capable of being a sitting tenant or occupying the

houses in question, the answer is spelt out in Section 3 of the State

Proceedings Act, Chapter 71 of the Laws of Zambia, which provides as

follows:-

“Subject to the provisions of this Act, the State shall be subject to those liabilities in contract to w h ic i, if it were a private person of full age and capacity, it would be subject and any claim arising therefrom may be enforced as of right against the State in accordance with the provisions of this Act.”

The Ministry of Education does so through its employees. This is a

point we need not belabour any further, suffice to say that the argument

lacks merit at aw and so do the two Grounds of Appeal.

As regards Ground 3 of this Appeal which attacks the learned Judge

for awarding masne profits to the 2nd Respondents for what the Appellants

termed "the failure to recognize the significance of the relevant provisions

of the Rent Act”, and for ordering the Appe lants to forthwith vacate and

yield vacant possession of the houses to the 2nd Respondents; we have

considered the arguments by the parties. As to the relevance and

applies oility cf the Rent Act to the Appellants' case, we have had recourse

to Section 3(2) o-'the Rent Act which provides as follows:

ar. ^ ^ ^ ' 7 q h ° USf ,Pt ° r O ccupied hY(Underlining is ours for e m phasis.) Innlfl(a £ e h is e m p lo y m e n t".

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In this case, we have already stated that the Appellants were

accommodated in the ZCCM houses by virtue of their employment as

teachers in the Ministry of Education and that it was the Ministry of

Education which was the legal tenant. Therefore, Section 3(2) of the Rent

Act specifically excludes the Appellants 'rom it’s application as they

occupied the houses by virtue of their employment with the Ministry of

Education. As such, they cannot claim any bsnefits under the Rent Act.

rurthe-, we totally agree with the submissions by learned Counsel for

the Respondents that the Appellants did not raise the issue of the

relevance of the Rent Act to their case. They are therefore, precluded from

raising it as a ground of appeal before us as ft is settled that a matter that

was net raised n the lower court cannot be raised in a higher court as a

ground of appeal as was clearly spelt out in Buchman vs. Attorney

General6, and in Mususu Kalenga Building Limited and Another vs.

Richman s Money Lenders7, to mention a few. Hence, Ground 3 of this

Appeal flies directly in the teeth of our decisions in the above cited cases.

The same is dismissed for incompetence.

Ground 4 of this Appeal raises the question whether the 2"a

Respondents were entitled tc mesne profits and interest thereon from the

Appellants as found by the learned Judge. ,n this regard, the Appellants

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have argued :hat since the Court below found that there was no tenancy

agreement between the Appellants and the Respondents, it ought not to

have awarded mesne profits to the 2rd Respondents because the

Appellants lawfully occupied the houses and they were not trespassers.

The cist of the Respondents’ arguments in response was that the decision

of the learned Judge cannot be faulted as the Appellants did not oppose

the 2nd Respondent’s counterclaim for mesne profits and they had no legal

basis .o remain in occupation of the houses in question after they were sold

to the 2nd Respondents.

We have considered the arguments by the parties. To resolve the

question raised in this Ground, we have had recourse to paragraph 255 of

Halsbury's Laws of England 4th edition, volume 27, which provides as

follows:-

n S ft I landlord may, recover in an action for mesnep o iU the damages which he has suffered through beinq out of possession of the Land, or if he can prove no actual damaqe caused ^y„ j m „by, the defendant's trespass, the landlord may recover Lfo r th i n r0 f iH *5® amount of the open market value of the premisesthe rent paid undP defendant's wrongful occupation. In most cases the rent paid under any expired tenancy will be strong evidence as to

trespass’ can onr„a'h e- Pr° fltS b a 'VPe of damages fortrespass can only be recovered in resoect nf thecontinued occupation after the expiry of his leaal riah* t o l r

!n Valentine Webster Chansa Kayope vs. Attorney General19, we

opined that the appellant kept the respondent out of the house without

lawful justification, the law governing mesne profits stipulates that he must

pay the mesne profits to the respondent for his continued occupation of the

house after the expiry of his legal right to occupy it. And in Peter Militis

vs. Wilson Kafuko Chiwala20, we held that mesne profits being damages

for trespass, can only be claimed from the date when a defendant ceased

to hokJ the oremises as a tenant and became a trespasser.

Apply'nc the above authorities to the -'acts of this case, it is clear that

the learned Judge was on firm ground when he found that the 2nd

Respondents were entitled to mesne profits. The reason being that

although the Appellants initially legally occupied the houses in question,

their continued occupation of the houses after they were advised by the two

letters refened to above that the houses had been sold to the 2nd

Respondents and to either vacate the houses or enter into individual

tenancy agreements with the new owners, which they did not, they became

trespassers. They instead became defiant under the guise or an unjustified

misconception that they were the ones who v/ere entitled to be offered and

to purchase the houses in question. They did so at their own peril. It follows

that as a result of the Appellants’ own wrongful attitude, the 2nd

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Respondents were deprived of the use of their houses without any lawful

justification. 80, from that period, the Appellants became trespassers

beccuse :hey ceased to fegaliy hold tne premises as the tenancy

agreement by virtue of which they occupied the houses had been

terminated Consequently, the learned trial Judge cannot be faulted for

awarding the 2na Respondents mesne profits from the date of their

Counterclaim up to the date the Appellants would yield vacant possession

of the houses.

We further find that the Indian case of Phiraya Lai Alias Lai Vs Jia

Rani Air2 cited and relied upon by the Appellants to support their argument

that the 2 Respondents were not entitled to mesne profits does not at all

support thei' case as it is even more favou'able to the 2nd Respondents

because it decides that a person in occupation or possession without

proper title, (as the Appellants in the case in casu), is liable to mesne

profits to the holder of possessory title or the true owner of the land or

property, who in the current case are the 2nd Respondents.

As regards the argument that the learned Judge should not have

awarded interest on the mesne profits because the Appellants legally

occupied the houses in question, our firm view is that the trial Judge cannot

be faulted because the award of interest on a noney judgment is statutory.

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Order 38/8 o: the High Court Rules Chapter 25 of the Laws of Zambia

provides that where a judgment or order is for a sum of money, interest

shal be paid thereon. Further, interest is awarded on a judgment debt as

compensation for being deprived of the use of a person's money.

Therefore, there cannot be any merit in the Appellants’ argument that the

trial Judge was wrong when he awarded interest on the mesne profits

awarded to the 2nd Respondents. Ground 4 of this Appeal also fails.

As regards Ground 5 which challenges the learned Judge for

awarding ccsts to the Respondents, the Appellants' argument in support of

this Ground is that since they brought their case to Court to pursue their

rights under the Home Empowerment Policy and as a result of

pronouncements made by the then Republican President, Mr. Rupiah

Bwezani Banda, to the effect that all sitting tenants were entitled to

purchase the houses they occupied, the teachers inclusive, the court below

ought not to nave condemned them in costs. In response, the

Respondents suoported the decision of the learned Judge on grounds we

have already alluded to in the summary of their arguments above.

We have considered the arguments by the parties. It is trite law that

the award of costs is in the discretion of the court. It is also settled that

costs ars normally awarded to a successful party except where such a

party is guilty of some misconduct. In the current case, there is no doubt

that the Respondents must have incurred costs in defending this action and

as sjch, they were entitled to costs. In Richard Nsofu Mandona vs

Zambia National Commercial Bank Pic., Zambia National Oil Company

Limited, and Attorney General11 and in J.K. Rambai Patel vs Mukesh

Kumar Patel21, we stated that a successful party will not normally be

deprived of his costs unless there is something in the nature of the claim or

in the condjct of the party which makes it improper for him to be granted

the costs.

The Respondents in the case in casu were the successful parties in

the Court below. So there was nothing in the nature of their claim or

conduct that would have caused the learned Judge to use his discretion

and deprive them of their costs.

As regards the argument raised concerning the political

pronouncements as highlighted in the summaries above, the view that we

take is that although political pronouncements may have been made as

alleged by the Appellants, the role of the Court is to adjudicate on disputes

before it in accordance with the law as it existed. Therefore, as much as we

agree with the Appellants that the Home Empowerment Policy was

primarily meant to benefit sitting tenants as held in numerous cases, there

are/ were other criteria that had to be taken into account in determining the

eligibility of ar individual to be offered to purchase a house apart from one

being a sitting tenant. In Zambia Consolidated Copper Mines Limited vs.

Richard Kangwa and Others1, we pronounced that it is a mistake to talk

about political directives and to ignore the Government’s other more

relevant character and capacity as the shareholder with the controlling

interest in qussi-Governmentai organizations such as the 1st Respondent.

Like in the curent case, the Government allowed ZCCM to sell some of its

properties to its employees including the 2nd Respondents, and not to the

Appellants, in order to reduce its bill on terminal benefits owed to its

employees. We have already illustrated some of the points under, Grounds

1 and 2 of this Appeal on eligibility criteria to purchase such houses. We

have stated that the Appellants fell short of this because firstly, they were

not the legal sitting tenants but mere occupants or licensees of the houses

in question which they occupied by virtue of their employment with the legal

tenant, the Minstry of Education. Secondly, they were not employees of

ZCCM, the organization that was selling the houses. And thirdly, they never

received an> offer from ZCCM which was selling the houses.

In Timothy Hamundu Muuka Mudenda vs. Tobacco Board of

Zambia , we made it clear that despite political pronouncements, the legal

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position has always been that a licensee is not a sitting tenant at law and

as such, he had no legal right to purchase the house he was living in

except where there has been a firm offer and acceptance of that offer to

purchase the house. The Appellants in the case in casu, despite the

political pronouncements that they claim influenced their decision to pursue

their rights in court, had no legal right to purchase the houses in question,

as they have never been given any offer to purchase the houses.

Therefore, having lost their claim in the Court below, they were properly

condemnec tc costs.

As regards the issue raised by the 2nd Respondents that the

Appe ants needed to have obtained leave of the Court below in order for

them to bring an appeal against the award of costs before this Court; our

response is that this argument is misconceived because Section 24 (1) (d)

of the SCR on y applies where the grouna of appeal is only against an

award of costs. The Sub Section provides as follows: -

No appeal shall lie-

(d) S T Z r der °! thA.Hi9h Col,n or a"V Jud9e * •» " « * madewith the consent of the parties or from an order as to costs whichby law is left to the discretion of the court without

hat h h C°,un 0r ° f the Judge who made the order or ifC o , H®r refused' without » e leave of a Judge of theCourt, (Underlining ours for emphasis)

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In the current case, the Appeal was not only against the award of

costs.

It is c Iso our firm view that the case of Richard Nsofu Mandona vs.

Zambia National Commercial Bank Pic., Zambia National Oil Company

Limited, and Attorney General11 relied upon by the learned Counsel for

the 2™ Respondent should be distinguished from the current case as in the

earlier case, the appellant's appeal was against the none award of costs

following the discontinuance of the Counterclaim by the 15t and 2nd

respor dents. We declined to consider the issue of costs because the

appellant had not obtained leave to appeal from the Judge in the court

below against the non-award of costs for the discontinued counterclaim. In

the current case, the Appellants' Appeal was not limited to costs.

Therefore, nc leave was required from the lower court for the Appellants to

appeal against the award of costs. The above argument, therefore, has no

merit.

With regard to Ground 6 of this Appeal which attacks the learned

Judge for awarding mesne profits and interest to the 2"< Respondents and

the arguments in support thereof, our response is that issues raised under

this Ground have already been considered and dealt with under Grounds 3

and 4 c f this apoeal. There is, th e re fo re , no need for us to re p ea t

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ourselves here suffice to say that the same have no merit for the reasons

given under those Grounds of Appeal.

All the sx grounds of Appeal having failed, the sum total is that this

Appeal has wholly failed. The same is dismissed with costs to the

Respondents to be taxed in default of agreement.

We further order the Appellants to vacate the houses in question

within 14 days from today. In default thereof, the Zambia Police are

directed to assist the 2nd Respondents to evict the Appellants from the said

houses.

H. Chibomba SUPREME COURT JUDGE

E. M. Hamaundu SUPREME COURT JUDGE

R.M.C. Kaoma SUPREME COURT JUDGE