Ragin and Morel & Others v Tembo (Appeal 29 of 2010) [2014] ZMSC 12 (15 January 2014)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 29 OF 2010 (Civil Jurisdiction) B E T W E E N: AMINA MOOSA DODIA RAGIN MICHAEL SPENCER MOREL CANDY MARILYN MOREL ANTIONETTE MOREL AND MICHAEL TEMBO 1 ST APPELLANT 2 ND APPELLANT 3 RD APPELLANT 4 TH APPELLANT RESPONDENT CORAM: MUMBA, AG. DCJ, WANKI AND MUYOVWE, JJS On 17th April, 2012 and 16th January, 2014 For the Appellants: Mr. K. M. G. Chisanga of Messrs. KMG Chisanga Advocates For the Respondents: Mr. Mwamba Chitundu of Messrs. Barnaby and Chitundu Advocates ___________________________________________________________________________ J U D G M E N T ________________________________________________________________ Wanki, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. 2. 3. Nkhata and Others -Vs- Attorney General (1966) ZR 124. Attorney General -Vs- Ndhlovu (1986) ZR 12. Gerardus Adrianus Van Boxtel -Vs- Rosalyn Mary Kearney (a minor by Charles Kearney her father and next friend) (1987) ZR 63. 4. Amon -Vs- Bobbet (1889) 22 QBD 584. J1 5. Photo Bank Limited -Vs- Shengo Holdings Limited SCZ No. 10 of 2008. 6. William David White -Vs- E F Hervey (1985) ZR 179. 7. 8. 9. Howe -Vs- Smith (1884) 27 Ch. D. 89, 92, 98. Thorpe -Vs- Fasey (1949) 2 ALL ER 393. Johnson -Vs- Agnew (1979) 1 ALL ER 883. 10. J. Woods and Others -Vs- Mackenzie Hill Limited (1975) 2 ALL ER 170. 11. Crown Cork Limited -Vs- Pamela Jackson (1988 - 1989) ZR 82. 12. Mwenya and Randee -Vs- Paul Kaping’a (1993) ZR 2. 13. Aloysius Yeta Mundia and National Drug Company Limited Appeal No. 106 of 1998. OTHER WORKS REFERRED TO:- 14. Odgers Principles of Pleadings and Practice 22 Edition, P. 205-207. 15. Rules of the supreme Court, 1999 Edition, Order 18/18. 16. Williams on Vendor and Purchaser, 4th Edition, Volume 2 page 994. 17. Halsbury’s Laws of England 4th Edition Volume 34 paragraph 543, Volume 9 paragraph 548. This is an appeal against the judgment of the High Court at Lusaka in which the High Court ordered specific performance of the agreement relating to the sale of Shop Number 1A on Stand 11040 Chozi Road Lusaka in favour of the respondent. J2 The appellants issued a Writ of Summons which was supported by a Statement of Claim claiming for the following:- (i) A declaration that the contract of sale between the appellants and the respondents be terminated by reason of the respondent default; (ii) A declaration that the lease agreement between the appellants and the respondent was terminated by reason of the respondent’s default/failure to pay rentals; (iii) An order for vacant possession of Shop No. 1A on Plot 11040 Chozi Road Lusaka. (iv) Payment of the sum of US$24,310-00 being rental arrears; (v) Mesne profits at the rate of US$2,000-00 from the date of service of the writ until vacant possession is delivered up; (vi) An order for the removal of the caveat from Shop No. 1A on Plot 11040 Chozi Road Lusaka; (vii) Costs for and incidental to this action; (viii) Interest on the sums found due; and (ix) Any further relief the Court may deem fit. The respondent filed a defence in which it inter alia counter claimed the following:- (i) Specific performance of an oral agreement for the purchase of Shop No. 1A on Plot 11040 Chozi Road Lusaka which is inclusive of a cold room; J3 (ii) A declaratory order that no rentals are due from the respondent to the appellants for the period commencing May, 2004 to date on account of the appellants’ failure to accept the balance of the purchase price when the same was presented to them as agreed by the parties; (iii) An order for an interim injunction restraining the appellants from evicting or interfering in any manner whatsoever with the respondent’s peaceful and quite enjoyment of the said premises until determination of this matter or until further order of this Court; (iv) Further or other relief; and (v) Costs of and incidental to this action. The facts of the case which were common cause were that by a written lease made on 8th January, 2004 the appellants leased to the respondent Shop No. 1A on Plot 11040 Lusaka for a period of twelve months at a monthly rental of US$1,300-00 less 15% withholding tax payable before or during the first seven days of every month. Subsequently, the parties discussed the possible sale of the premises to the respondent, who declared interest to purchase the same in or before April, 2004. The purchase price was in dispute but the respondent accepted the offer and made a deposit of K70,000,000-00 (old J4 currency). The balance was to be paid in two equal instalments eight weeks apart, from the date of the initial deposit. The parties filed witness statements. The 1st appellant’s witness statement disclosed that the appellants were the owners of the subject property; that by a written lease agreement dated 8th January, 2004 they leased the subject property to the respondent at a gross monthly rent of US$1,300-00; that in April, 2004 the respondent and the 1st appellant had a discussion on the possible Subdivision and sell to the respondent of the demised premises; and that subsequently the appellants offered to sell to the respondent at K300,000,000-00 (old currency). The intended sale only related to the premises but not the cold room belonging to other people. The witness statement of the 1st appellant also disclosed that the parties executed a written agreement in respect of the envisaged sale pursuant to which the respondent paid the sum of K70,000,000-00 (old currency) on 5th April, 2004; that the respondent agreed to pay the balance in instalments, the first one on or about 5th June, 2004 and the balance on or about 5th J5 August, 2004; and that the respondent failed or neglected to pay the balance within the stipulated sixteen weeks and in accordance with the agreement between the parties, the respondent forfeited 50% of the deposit while the balance was to be applied to rentals. The 1st appellant’s statement finally disclosed that the lease expired by affluxion of time on 8th January, 2005 but the respondent continued to rent the property pursuant to an interim order of injunction at the monthly rent of US$1,300-00 despite increments in the rental values of shops in Northmead area; that the respondent failed to pay rentals for the period May, 2004 to November, 2006 thereby accruing rental arrears of US$40,300-00; and that the respondent lodged a caveat as intending purchaser of the entire Stand 11040 Chozi Road Lusaka. The respondent’s witness statement disclosed that some time in February, 2004 discussions between himself and the 1st appellant were held in relation to the purchase of Stand No. 11040 Lusaka and he was subsequently offered to purchase the same by the 2nd appellant at the sum of US$60,000-00 or J6 Kwacha equivalent, and that he accepted the offer and after selling his Flat 2B Lake Road in Kabulonga, Lusaka he paid the 1st appellant K70,000,000-00 (old currency) in cash before a formal written contract was signed. The respondents witness statement also disclosed that the 1st appellant told him that they would provide a written agreement after one week from 5th April, 2004; that they agreed with the 1st appellant that the respondent would cease paying rent unless he failed to pay the balance of the purchase price and since there were no arrears due to the appellants at the time no rent was paid from 30th November, 2006; that it was agreed by the parties that the balance of US$45,417-00 was to be paid in two instalments; and that in September, 2004, the respondent sold his other property being F/609/E/53B Chamba Valley, Lusaka for K120,000,000-00 (old currency) and when he called the 2nd appellant that he wanted to pay this amount towards the balance, he was told that the 1st appellant had changed her mind about the sale because ZAMBEEF was offering her a good lease deal. J7 The respondent’s witness statement further disclosed that at the time he sold his Chamba Valley property, he also disposed off his other properties namely, Plot Number 1320 Lusaka for K22,000,000-00 (old currency) and Plot Number 1414 Lusaka for K20,000,000-00 (old currency) which were to be applied towards the balance of the purchase price; that several attempts were made to pay the balance but the 1st appellant refused to accept the money, that following the persistent refusal by the 1st appellant to accept the balance, the respondent was left with no option but to place a caveat on the demised premises where he was operating a bar and a café business; and that on 9th February, 2006 the appellants’ Advocates wrote a letter to the respondent’s Advocates that the property could be purchased as long as the same was without a cold room, this was contrary to a term of the oral agreement that the purchase was inclusive of the cold room. DW2’s witness statement disclosed that sometime in February, 2004 (the respondent) requested him to take the 1st appellant to view his Flat 2B along Lake Road in Kabulonga which was to be exchanged with the appellants’ demised J8 property in Northmead after which 1st appellant told him that she would inform respondent of her decision; and that he was subsequently instructed by the respondent to sell the Flat in Kabulonga and F/609/E/53/B Chamba Valley, Lusaka and he managed to find buyers for the two properties, both at K120,000,000-00 (old currency). After considering the evidence adduced before it, the trial Court found that there was a valid contract of sale between the appellants and the respondent which is enforceable relating to Shop 1A of Stand 11040 only but not the entire plot; that the purchase price was K298,800,000-00; that it would be unjust to blame the respondent for defaulting the payment of the purchase price; that time was not of the essence in this transaction; that the respondent did not commit any default that would entitle the appellants to repudiate the Contract of Sale; and that the respondent could not be said to be in rent arrears. Finally, the trial Court concluded that the appellants had failed to prove their case on the balance of probabilities and dismissed the action. J9 In relation to the counter claim whose basis were that following the payment of the K70,000,000-00 (old currency) deposit and the parties agreeing to have the balance paid in two instalments; the appellants refused the respondent’s attempts to pay the balance and to complete the sale; and further the appellants’ insistence that the cold room was not part of the property agreed to be sold; the trial Court held that the specific performance it had ordered did not include the cold room. The appellants being dissatisfied with the judgment of the trial Court dated the 21st day of October, 2009 appealed to the Supreme Court advancing six grounds of appeal in their Memorandum of Appeal as follows:- 1. 2. 3. The Honourable Judge erred in law and fact when he allowed the injunction earlier granted to the respondent to be utilized as a means of paying the purchase price in breach of the Agreement between the appellants and the respondent. The Honourable Judge erred in law and fact when he found that the respondent had demonstrated his readiness to compete the purchase of the property by selling his other property in the absence of evidence to that effect. The Honourable Judge erred in law and fact when he held that the respondent had demonstrated his readiness and willingness to complete the J10 4. 5. 6. purchase even after the respondent failed to demonstrate his tender. The Honourable Judge erred in law and fact when he allowed the respondent’s counter claim in the face of failure by the respondent to adduce evidence in support of his counter claim. The Honourable Judge erred in law and fact when he found that the appellants were not entitled to repudiate the Contract of Sale without serving a Notice to complete on the respondent. The Honourable Judge erred in law and fact when he allowed the respondent’s counter claim without giving reasons for that finding. The parties filed heads of arguments. At the hearing of the appeal both Mr. Chisanga and Mr. Chitundu solely relied on their respective heads of argument. The appellants abandoned grounds one, three, and six of the appeal. In support of ground two of the appeal it was submitted that the respondent did not produce any document to show that he sold a property known as Plot 1414 which he referred to in his testimony. Further, there was no evidence to show that any of the sales of the properties referred to was completed, or indeed that any taxes and other outgoings in connection with the said sales were paid and discharged. J11 It was contended that it was a misdirection for the trial Judge to accept this evidence as credible in the light of the glaring incompleteness and inconsistencies appearing in the documentation. It was argued that at the very least this evidence was calculated to mislead the Court. It was further contended that the trial Judge clearly failed to give detailed reasons and to review all the evidence which was before him and decided to merely believe the respondent. It was pointed out that as a general rule the Court rarely interferes with the findings of fact by the Lower Court; and that the circumstances under which the Appellate Court will interfere with the lower Court’s finding of fact were set out in the case of NKHATA AND OTHERS -VS- ATTORNEY GENERAL (1) a case cited with approval in ATTORNEY GENERAL -VS- NDHLOVU (2) where the Court made the following observations:- “We have considered the law set out in past judgment of this Court when a trial Judge’s findings of fact, are attacked on appeal as in this case. In the case of NKHATA AND FOUR OTHERS -VS- THE ATTORNEY GENERAL OF ZAMBIA the Court made the following comments on this type of appeal:- “(1)(2). By his grounds of appeal the appellant, in substance attacks certain of the learned trial Judges findings of fact. A trial Judge sitting alone without a jury can only be reversed on J12 fact when it is positively demonstrated to the Appellate Court that:- (a) by reason of some non-direction or misdirection or otherwise the Judge erred in accepting the evidence which he did accept; or (b) (c) (d) in assessing and evaluating the evidence the Judge has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or itself, or it un mistakenly appears from the evidence from the unsatisfactory reasons given by the Judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or in so far as the Judge has relied on manner and demeanour; there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer.” Reliance was also placed on the case of GERARDUS VAN BAXTEL -VS- ROSALYN MARY KEARNEY (a minor by Charles Kearney her father and next friend) (3) where the Supreme Court, in refusing to interfere with the findings of fact in the Court below made reference to the case of NKHATA AND OTHERS (1) and noted the following:- J13 “In his judgment, the learned trial commissioner gave detailed reasons and reviewed all the evidence which was before him and decided to disbelieve the defendant. For our part, we are satisfied that none of the conditions referred to in Nkhata (4) has been demonstrated to us to enable this Court to reverse findings which were amply supported by the evidence on record.” In support of ground four of the appeal it was pointed out that the learned trial Judge dismissed as red herring the submission of the appellant that the respondent’s counter claim be dismissed because the respondent did not plead any facts supporting the counter claim. It was submitted that in the view taken by the learned Judge, the determination of the appellants’ claim in the matter, which was dismissed was to apply mutatis mutandis to the respondents counter claim. It was argued that the trial Judge was satisfied with the evidence on record that the respondent was ready and willing to pay the balance of the purchase price if it were not for the (appellants) intransigence attitude. This according to the learned trial Judge was the kernel of the respondent’s counter claim which in his judgment had been proved. J14 It was contended that it is also imperative to note that the respondent’s counter claim does not contain any statements of facts but only lists reliefs that the respondent sought from Court. It was pointed out that as argued under ground two above, the respondent’s evidence adduced in support of defence to the appellants’ claim did not prove to the required standard in civil procedure that the respondent had sold his properties to raise the balance of the purchase price at the time of performing the Contract between the respondent and the appellants. It was argued that on this account, it should follow that on its own, the evidence could not reasonably have convinced the learned trial Judge that the respondent was entitled to judgment upon the counter claim. Furthermore, it was submitted that the respondent’s pleading cannot reasonably be classified as a counter claim because it falls far short of the rules regulating pleadings. It was contended that accordingly the trial Judge was not on firm ground in upholding this counter claim. J15 It was argued that a counter claim is governed by the same rules of pleading as a Statement of Claim, and the reply to it by the same rules as a defence. It was submitted that all facts relied upon by way of counter claim must be in numbered paragraphs (following on in the same serial from those of defence, not starting a fresh series) under the Heading ‘Counter Claim’ so as to distinguish them from facts alleged by way of defence. It was argued that if any of these facts on which the counter claim is founded have already been stated in the defence, they need not be restated in the counter claim, but may be incorporated by reference under the heading ‘Counter Claim’, because it falls far short to the rules regulating pleadings. It was contended that accordingly, the trial Judge was not on firm ground in upholding the counter claim. The Court was referred to all the authorities cited in support of ground two; namely NKHATA AND OTHERS -VS- ATTORNEY GENERAL (1); ATTORNEY GENERAL -VS- NDHLOVU (2) AND GERARDUS ADRIANUS VAN BAXTEL -VS- ROSELYN MARY KEARNEY (a minor by Charles Kearney her father and next friend). (3) J16 And reference was made to ODGERS PRINCIPLES OF PLEADING AND PRACTICE (15) where it is stated that “A counter claim is to be created for all purposes for which justice requires it to be so treated as an independent action.” Further, reference was made to PHOTO BANK LIMITED - VS- SHENGO HOLDING LIMITED (5) where the Court made the following observations on the Status of a Counter claim:- “The learned trial Judge in his ruling put the matter in this way: It is my considered view that the defendant admits the plaintiff’s claim. The defence raised a counter claim. A counter claim is a claim in its own right which has still to be proved. The appropriate thing to do in those circumstances would have been to stay the default judgment until the end of trial of the Counter Claim.” We cannot fault the learned Judge’s opinion as expressed. By counter claiming; you are not denying the claim which was a liquidated claim. The counter claim is more of a set off and this has to be proved. As the judgment was properly entered, a counter claim cannot be the basis for setting it aside. The learned trial Judge correctly stated that the only reasonable option available to the appellant was to stay the execution of the properly entered judgment pending the proof of the counter claim. He never said that the appellant should commence another action but to pursue their counter claim.” Reference was also made to the case of WILLIAM DAVID WHITE -VS- E F HERVEY (6) where the Court observed on the Status of a counter claim as follows:- J17 “A further suggestion was that all the claims in the counter claim can be supported by an agreement between the parties. Here again it is an elementary rule of pleading that an agreement must be specifically pleaded. What emerges from all this is that the counter claim as it stands is undoubtedly a bad pleading which neither fulfils the objects of pleading nor discloses any cause, or causes of action in the sense that a factual situation is alleged which contains facts upon which the defendant can attack liability to the plaintiff or upon which he can establish a right or entitlement in a judgment in his favour against the plaintiff for the amounts claimed.” In relation to ground five of the appeal, it was contended that the Honourable Judge erred in law and fact when he found that the appellants were not entitled to repudiate the Contract of Sale without serving a notice to complete on the respondent. It was pointed out that the learned trial Judge accepted the respondent’s submission that only after a notice to complete is properly served on the purchaser by the vendor is the latter entitled to repudiate the contract and if the former does not comply with notice. The trial Judge further found as a fact that the appellant had not served their notice to complete from which his conclusion was that the respondent would not have defaulted in complying. It was submitted that on these very J18 considerations, the learned trial Judge concluded that time was not of the essence in this transaction and that the respondent did not commit any default that would entitle the appellants to repudiate the Contract of Sale. It was contended that the evidence presented to Court shows that the Contract of Sale executed by the parties did not provide for any notice to be served on the party in default. It was submitted that under the contract, payment of the balance was to be made in two instalments in the space of eight weeks each. It was argued that the contract specifically provided for the consequences of non-completion on the part of the respondent namely: that the purchaser would forfeit fifty percent of the payment made to the seller and the other fifty percent would be reimbursed to the buyer through rental payments of the same property and in whatever time period required for these payments to accrue to the amount being reimbursed to the buyer. It was pointed out that there was evidence that the respondent had not rendered the balance of the purchase price up to and including the time the parties were in Court. It was J19 further pointed out that the respondent had during the period prior to Court proceedings proposed to pay the balance of the purchase price by instalments of US$10,000.00 per month. It was argued that this is not a case in which the appellant was obliged to serve a notice to complete since no such provision was included in the signed contract. It was contended that the appellants’ exercise of the right to rescind in this matter was dependent on the conduct of the respondent. It was argued that if the actions of the respondent are such that they amounted to a repudiation of contract, the appellants would be within their right to rescind the contract provided that the parties could be restored to their former position. It was further argued that since the rescission results from the repudiatory breach by the respondent, the appellant was even entitled to damages and since the respondent was even in occupation, an occupation rent. It was contended that the fact that the contract executed by the appellant and the respondent contained provision of what would transpire, in the event of the respondent being unable to complete, was a clear indication that time was of the J20 essence in the contract. It was submitted that in the light of the evident breach by non-payment on the part of the respondent including the suggestion to settle the balance by instalments of US$10,000.00, it was appropriate for the appellants to avoid further performance of the contract. In support of ground five of the appeal the Court was referred to a number of authorities which included HOWE -VS- SMITH (7) where Cotton L. J stated that:- “In my opinion, without at all laying down that whenever the Court refuses specific performance it will allow the vendor to retain the deposit, in this case and under this contract purchaser has so acted as to repudiate on his part the contract and he cannot under these circumstances, take advantage of his own default to recover this deposit from the vendor.” and CROWN CORK LIMITED -VS- PAMELA JACKSON (11) where Gardner Ag. DCJ stated that:- “If the contract contains a condition entitling the vendor to rescind on the happening of certain events; the vendor may if these events arise, rescind. In the absence of such a condition the vendor can only rescind if the conduct of the purchaser is such as to amount to a repudiation of the contract and the parties can be restored to their former position.” In response to ground two of the appeal, it was contended that there is overwhelming evidence on record to show that the J21 respondent was ready and very willing to complete the sale with the appellants herein which is confirmed by the action of the respondent to sell off his other properties so as to raise funds to complete the transaction herein. It was pointed out that there is evidence on record that the respondent sold his property situate at Flat 2B Lake Road, Kabulonga so as to raise funds for the purchase of the subject property. It was further pointed out that the said property was sold to one Michael Simonga Chisanga pursuant to the sale agreement of 2nd April, 2004. It was submitted that the sale of the respondent’s property was even brought to the attention of the appellants and it was from that sale that a deposit of K70,000,000.00 (old currency) was raised and paid to the appellants on 5th April, 2004 for purchase of the subject property. It was contended that the respondent also disposed of his other properties besides the Kabulonga one so as to raise funds for the purchase of the subject property. It was further contended that the other properties he disposed of are J22 F/609/E/53/13 Chamba Valley, Plot No. 1320 Lusaka and Plot No. 1414 Lusaka which properties he sold for the sums of K120,000,000.00 (old currency); K22,000,000.00 (old currency) and K20,000,000.00 (old currency) respectively. It was submitted that the evidence of the respondent was well corroborated by one Michael Nkata. It was contended that the said Michael Nkata is the one who acted as the Agent for the respondent to find purchasers of the properties the respondent sold so as to raise funds to complete the transaction before Court. It was further pointed out that further evidence is available on record to confirm other properties sold by the respondent so as to raise funds to purchase the subject property. It was submitted that this evidence was not challenged at all in the Court below; and the evidence of both the respondent and his witness Michael Nkata was not shaken. It was contended that the contract of sale between Sara Miti as the vendor and the respondent herein as purchaser in respect of Farm 609, Lusaka was filed in the Court below as proof that the said property had been purchased by the J23 respondent before being sold by him so as to raise funds to purchase the subject property herein. With regard to the Contract of Sale between the respondent as vendor and one Michael Simonga Chisangamo as purchaser in respect of Flat No. 24B Lake Road Kabulonga, it was submitted that this property which was originally to be swapped between the parties herein wherein the appellants were to get the disputed property but that the appellants later changed their minds. Following the change of mind by the appellants not to proceed with the said swapping, the respondent proceeded to sell it to the third party. It was maintained that though the sale of the Kabulonga property was made to Michael Simonga Chisangano, the Contract of Sale was signed by Robert Mulangu on behalf of the Purchaser. With regard to the offer for sale of Farm Number F/609/E/53/13 Chamba Valley it was submitted that the same was sold by the respondent to Willis Mukupa for the sum of K130,000,000.00 (old currency) and notwithstanding the offer letter which was not signed the sale was concluded. J24 It was argued that in fact the respondent’s evidence in cross-examination remained unshaken and still maintained that he sold off his properties to finance the purchase of the subject property. It was contended that the respondent even made efforts to pay the balance of the purchase price but this was rejected by the appellants. It was argued that it is trite law that the Appellate Court can interfere with the Lower Court’s findings of fact where need arises. Reliance was placed on the case of ATTORNEY GENERAL -VS- NDHLOVU (2) where the Court held that where the Judge had accepted evidence which he should not have accepted or he had not taken advantage of his seeing and hearing the witnesses, this Court can interfere with the findings of fact. Further, where a trial Judge took into account matters he should not have and did not take into account matters he should have, this Court is at liberty to interfere with such findings of the Judge. It was pointed out that it was also the holding in the said NDHLOVU (2) case that where the Judge relied on the demeanour but there were other circumstances J25 which indicated that the evidence was to be accepted as credible such as lying on another issue this Court can interfere with such a finding. It was submitted that the trial Judge was on firm ground in holding that the respondent had demonstrated willingness and readiness to complete the sale as the same is supported by overwhelming evidence on record. It was argued that this is not a suitable case for the Court to interfere with the findings of the Court below. It was contended that the Court considered all the material evidence before it and duly considered the evidence of the witnesses before arriving at its findings. It was, therefore, submitted that the Court dismisses this ground of appeal for want of merit with costs. In response to ground four of the appeal, it was pointed out that in the Counter Claim, the respondent sought for an order for specific performance of the agreement for the purchase of Shop No. 1 of Plot No. 11040, Chozi Road, Northmead, Lusaka inclusion of cold room. It was further sought under the Counter Claim that no rentals were to be paid J26 by the respondent after the appellant declined to accept the balance of the purchase price of the subject property from the respondent. It was contended that the respondent adduced evidence in the Court below to the effect that there was a written Contract of Sale which even appears on pages 57 and 58 of the Record of Appeal. It was also established in the Court below that there was a proper description of the subject property being Shop No. 1 of Plot 11040, Chozi Road, Northmead, Lusaka; there was also consideration for the purchase price of the subject property. It was submitted that the parties to the Sale Agreement were also clear, these being the appellant herein as Vendor and the respondent as Purchaser. It was argued that in fact, the said Agreement is even signed by the parties; and that the above details constitute all the elements of a valid Contract of Sale as per requirements of the Statute of Frauds Act as well as the holding in the case of MWENYA AND RANDEE -VS- KAPING’A. (12) It was contended that the respondent had adduced enough evidence to establish his case and as such the Court J27 was on firm ground to uphold the Counter Claim and should not be faulted at all. It was submitted that the Court dismisses this ground of appeal for want of merit and uphold the holding of the Court below. Regarding the attempt by the appellants to object to the manner in which the Counter Claim was pleaded, it was submitted that this issue was not before the Court below and has been raised as a new issue before this Court. It was argued that in keeping with the well founded position of the law regarding raising of new issues at appeal this issue should be refused. It was further submitted that the Court dismisses this part of the ground of appeal with costs. It was argued that should this Court allow the new issue raised by the appellants, it was submitted that there was enough evidence adduced in the Court below by not only the respondent and his witnesses but also the appellant to confirm that there was a valid Contract of Sale between the parties. It was contended that the trial Court cannot, therefore, be faulted for having upheld the Counter Claim. J28 In response to ground five of the appeal it was pointed out that the appellants have relied on the holding of Per Cotton L. J on HOWE -VS- SMITH (13) where he said: “In my opinion, without at all laying down that whenever the Court refuses specific performance it will allow the vendor to retain the deposit, in this case and under this contract the purchaser has so acted as to repudiate on his part the contract under these circumstances, take advantage of his own default to recover this deposit from the vender.” It was argued that in that case, the purchaser was not ready nor willing to complete the sale which is not the case in the present action as the respondent was ready and willing to complete the same herein save that the appellants had refused to proceed with the completion. It was contended that the said case does not address the issue of what a party is required to do before exercising its right of repudiation of a contract. It was, therefore, submitted that the HOWE (13) case is of little help if any at all in helping the Court determine the issues before it. J29 It was argued that the mandatory procedure required for any party before repudiating a Contract to comply with was not followed by the appellants as no notice to complete was given. It was thus submitted that this ground of appeal be dismissed for want of merit. It was pointed out that according to the Law Association of Zambia General Conditions of Sale of 1997 to which all transactions for Sale of Land fall under, it is a requirement that before any party can repudiate the Contract of Sale for breach of the contract by the other party he must serve on the other side a Notice to Complete. Failure to comply with the said Notice, then entitles the innocent party to exercise the right to repudiate the Contract. It was submitted that this Court has on several occasions upheld the said Law Association of Zambia General Conditions as good law. We were referred to our decision in the case of CROWN CORK COMPANY (ZAMBIA) LIMITED -VS- PAMELA HELEN JACKSON (11) where it was held that one cannot repudiate the Contract of Sale without serving the Notice to Complete. J30 Reliance was also placed on the case of ALOYSIUS YETA MUNDIA AND NATIONAL DRUG COMPANY LIMITED (14) which equally held that unless a Notice to Complete is effected a party cannot exercise its right to repudiate the Contract of Sale. It was contended that the appellants did not effect any service on the respondent of the Notice to Complete the transaction in issue. It was pointed out that in fact the appellants admitted this position in their evidence. It was thus submitted that in the absence of the Notice to Complete, the Court below was on firm ground to hold that the appellants had no right to repudiate the Contract of Sale without serving the Notice to Complete on the respondents. It was submitted that the Court accordingly upholds the holding of the Court below in respect of this ground of appeal and dismisses the ground of appeal for want of merit. It was emphasized that in fact the respondent had always been ready and willing to complete the sale save for the change of mind by the appellants to offer the subject property to a third party. J31 We have considered the grounds of the appeal; the arguments on behalf of the parties; the authorities, and indeed the judgment of the Court below that has been appealed against. In ground two of this appeal the appellants have attacked the trial Judge when he found that the respondent demonstrated his readiness to complete the purchase of the property by selling his other properties in the absence of evidence to that effect. We have considered the arguments in support and in response to this ground of appeal and indeed the portion of judgment of the Court below that related to this ground. From the undisputed evidence as adduced by the respondent in the Court below, we cannot fault the trial Judge for finding that the respondent had demonstrated his readiness to complete the purchase of the property by selling his other properties. In any case, that is a finding of fact which is supported by the evidence before the trial Court which we cannot interfere with. J32 In the circumstances, we find no merit in ground two of this appeal. It is, accordingly, dismissed. In ground four of this appeal the appellants have attacked the trial Judge when he allowed the respondent’s Counter Claim in the face of failure by the respondent to adduce evidence in support of his Counter Claim. We have considered the arguments in support and in response to this ground of the appeal; the portion of the judgment of the Court below relating to the issue; and indeed the authorities referred to. In his judgment at pages 17 to 18, the trial Judge stated that:- “The view I take is that my determination of the Plaintiffs’ claim herein which has been dismissed applies mutatis mutandis to the defendant’s Counter Claim, I am satisfied from the evidence on record that the Defendant was and he has been willing to pay the balance of the purchase price if it were not for the 1st Plaintiff’s intransigence attitude. This is the Kernel of the Defendant’s Counter Claim which has been proved. The Plaintiff’s claim having failed, it follows from the nature and circumstances of this case that the Defendant’s Counter Claim must inevitably succeed. In the result, I can safely conclude that the Defendant has proved his Counter Claim on a balance of probabilities. I accordingly order specific performance of the agreement relating to the sale of Shop 1A on Stand 11040 Chozi Road, Lusaka.” J33 In his Counter Claim the respondent claimed for specific performance of an oral agreement for the purchase of Shop Number 1 of Plot Number 11040, Chozi Road, Northmead, Lusaka which is inclusive of the Cold room; and for a declaratory order that no rentals are due from the defendant to the plaintiffs’ for the period commencing May, 2004 to-date on the plaintiffs’ failure to accept the balance of the purchase price when the same was presented to them as agreed. We have examined the foregoing counter claim; the evidence as accepted by the trial Court being that the parties agreed to sell and purchase the subject property; that a deposit of K70,000,000.00 (old currency) was paid by the respondent; that the balance was to be paid in instalments; and that the respondent attempted to pay the balance which the appellants refused to accept on the ground that they had changed their minds to sell the subject property as they had found an attractive lease offer from ZAMBEEF, the trial Court cannot be faulted for deciding as it did in relation to the counter claim. J34 In the circumstances, we find no merit in ground four of this appeal. We, accordingly dismiss it. In ground five of this appeal, the appellants have attacked the trial Judge when he found that the appellants were not entitled to repudiate the Contract of Sale without serving a Notice to Complete. We have considered the arguments presented by the appellants and the respondent in relation to this ground of appeal; and the portion of judgment of the Court below relating to this ground. The trial Judge in his judgment at page J16 of the Record stated:- “I accept Mr. Chitundu’s submission that only after a Notice to Complete is properly served on the purchase by the Vendor is the latter entitled to repudiate the contract and if the former does not comply with the notice. There is no evidence on record that the plaintiffs served a notice to complete on the defendant. As can clearly be noted above, the defendant would not have defaulted if the 1st plaintiff had accepted the balance of the purchase price when the defendant wanted to make a payment in September, 2004. According to the defendant it was the 1st J35 plaintiff’s refusal to accept the balance which made him lodge a caveat on the property.” From the evidence as the Court below correctly found, the respondent after selling his properties tried to pay the balance to the 1st appellant who refused to accept it on the ground that ZAMBEEF offered a good deal. The Court below cannot therefore, be faulted when it found that the respondent would not have defaulted if the 1st appellant had accepted the balance. On the evidence on record the respondent agreed to pay the balance in two equal instalments. The first instalment was to be paid on or about 5th June, 2004 and the second instalment was to be paid on or about 5th August, 2004. The evidence is further that the respondent tried to pay the balance to the 1 st appellant in September, 2004. We do not accept a delay of about a month to be unreasonable. In the case of JANE MWENYA, JACKSON RANDEE -VS- PAUL KAPING’A (12) where the respondent delayed for a month to pay the balance of the purchase price this Court held inter alia that:- J36 “(i) ………. There was no unreasonable delay to complete and that no completion notice was issued. Therefore there was no basis of rescinding the contract.” In the circumstances of the case, we cannot fault the trial Judge for having found as he did. We, therefore, find no merit in ground five of this appeal. It is, accordingly dismissed. Grounds two, four and five of this appeal having failed; and grounds one, three and six having been abandoned, the appeal is dismissed for lack of merit. The appellants to bear the costs of this appeal which will be subject to taxation in default of agreement. ………………………………… F. N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE ………………………………. .………………………………. J37 M. E. Wanki, SUPREME COURT JUDGE JUDGE E. N. C. Muyovwe, SUPREME COURT J38