This was an appeal against a judgment of the High Court sitting at Ndola dismissing the Appellants' claim against the Respondents which included a claim for specific performance and a declaration that the 1st respondent should have sold House No. 16 Entebbe Avenue, Mufulira, Zambia to the Appellants. The lower court also granted vacant possession to the 2nd Respondent as the bona fide purchaser of the house. The undisputed facts on which the judgment of the lower court was premised are that the 1st Appellant is the husband to the 2nd Appellant and they were both employed by the 1st Respondent. The 1st Appellant came from Southern Rhodesia (later re-named Zimbabwe) in 1959. He joined the then Mufulira Mine in 1961 and was allocated the house in issue. In 1974 he became an established resident and acquired Zambian citizenship in 2006. The 1st Appellant retired in 1996 though he was offered a two year contract a month after retirement. According to the 1st Appellant, he should have been offered the house as a sitting tenant having occupied it for over 40 years. The 2nd Appellant retired in 1993. Together with other retirees she took out an action against the 1st Respondent claiming underpayment of their retirement benefits. The case was determined in their favour in 2001 and she was then paid the balance of her retirement benefits. According to the 2nd Appellant, she was eligible to purchase the house as a sitting tenant and as a retired employee of the 1st Respondent who had underpaid her benefits.
The 1st Respondent's defence was that in 1997, the Appellants were not eligible to purchase the house as the 1st Appellant was not a Zambian and the 2nd appellant had retired and was paid her terminal benefits. The 1st Respondent did not offer the house to the Appellants but instead offered it to the 2nd Respondent. By notification dated 27 March 1998, the 1st Respondent notified the 1st Appellant as lessee of the said house, of the sale of the house to the 2nd Respondent. According to the 2nd Respondent, he was offered the house for sale on 15 September 1997 and on 10 January, 1998 a contract of sale was executed between himself and the 1st RSespondent. On appeal the Appellants argued that since they had been sitting tenants who had resided in the house for 46 years, the lower court should have exercised its equitable jurisdiction under section 13 of the High Court Act, Chapter 27 of the Laws of Zambia to find in their favour.
1. The Appellants did not plead equity in the court below and therefore could not raise it on appeal. A matter which was not raised in the lower court cannot be raised in a higher court. Buchman v the Attorney General (1995/97) ZR 131 followed.
2. In considering the eligibility of a tenant to purchase a house they have occupied, being a sitting tenant is not the only criteria. The 1st Appellant only obtained Zambian citizenship long after the house was offered to the 2nd Respondent. It is inconceivable that the 1st Appellant could expect to be offered the house when he was not a Zambian.
3. The 1st Respondent had every right to offer the house to another employee who met the requirements and could not wait until the 1st Appellant had obtained Zambian citizenship. The fact that the 2nd Appellant had a pending matter in court for underpayment of retirement benefits could not prevent the 1st Respondent from selling the house to another employee who met the requirements under the rules of sale.
4. The Appellants were riding on sympathy because they had stayed in the house for 46 years but sympathy could not earn them an offer of sale.