Maywynne Silcheme Limited v Martha Daka (Co-Administratrix of the estate of the late GODFREY NSHIMBA DAKA) (APPEAL No.173/2018) [2019] ZMCA 333 (28 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No.173/2018 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: MARTHA DAKA (Co-Administratix of the estate ,of the late GODFREY NSHI. MBA OAK. A) 1 ST RESPONDENT EPHETREDA NSHIMBA DAKA l(Go-Administr.atrix of the estate of the tate GODFREY NS. HIMBA DAKAJ 2ND RESPONDENT CORAM: Chasbi, Mul,ongoti and L,engalenga, JJA On 20th and 28th Au:gust, 2019 For the Appellant: Mr. B. Katebe of Kitwe Chambers For the Respondents: Mr. F . Chalenga of Freddie and Company JUDGMEN 'T MULONGOTI, ,J. A, delivered the Judgment of the Court Cases referred to: 1. Woods v Mackenzie Hill Limited (1975)1 WLR 613 2 . Gideon Mundanda v Timothy Mulwani & The Agricultural Finance Co. Ltd and S. S Mwiinga SCZ - Judgment No. 10 of 1987 3 . Nkhata and 4 others v The Attorney General (1966) ZR 124 4. Wilson Masauso Zulu v Avondale Housing . Project Li.mited (1982) ZR 5. Ndongo v Moses Mulyango & Roostico Banda SCZ- Judgment No. 4 of 2011 6 . Developm.ent Bank of Zambia and Livingstone Saw Mills Limited v Jet Cheer Development (Z) Limited SCZ - Judgment No. 33 of 2000 7. Rodwell Kasokopyo Musamba v M. M. Simpempa {TIA Electrical and Building Contractors) ( 1978) ZR 175 8. Emmanuel Mutale v Zambia Consolidated Copper Mines Limited (1994) SJ67 9 . Gardner v Jay {1885) 29 CHD 10. Attorney General v Seong San Company Limited (2013) ZR Vol. 2 11. A. M. I Zambia Ltd and Peggy Chibuye SCZ - Jud,gment No. 8 of 1999 12. Crown Cork Company (Z) Limited v Pamela Helen Jackson (1988 - 1989) ZR 82 13. Collett· v Van Zyl Brothers Limited ( 1966) ZR 65 14. Musamba v Simpemba (1978) ZR 175 15. General Nursin,g Council of Zambia v Mbangweta (2008) ZR 105 16. Y. B. and F . Transport v Supersonic Motors Limited (2002) ZR 22 Legislation ref erred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The British Act, Extension Act, Chapter 72 of the Laws of Zambia 3. The L i m i tation Act. 1939 4. The Statute of Frauds, 1677 J2 1. 0 Introduction 1.1 This is an appeal against the Judgment of Makubalo J , which ordered specific performance of an agreement relating to the sale of a subdivision of farm No. 1411 B Kamfinsa, Ki twe in favour of the Respondents. The trial Judge also dismissed the appellant's defence of the Statute of Limitation and found that the respondents' action was not statute barred. 2 .0 The facts: 2.1 The facts are relatively straightforward. The appellant was the registered owner of Farm No.1411B Kamfinsa, Kitwe. On 24th July, 1994, the appellant offered one Godfrey Nshimba Daka (the deceased) 6.3 hectares of land, being a subdivision of the aforementioned property at a consideration of K350.00 (rebased) per hectare, total purchase price being K2,205.00. Pursuant to the said offer letter, the deceased made payments towards the purchase price, while the appellant applied for permission to subdivide the land, which was granted. J3 2.2 The deceased took possession of the farm and carried on agricultural activities for about three years when his wife fell ill. As a result, the deceased and his wife left the farm. The wife, subsequently died in 2005. The deceased also fell ill and died in 2012. After his death his children (the respondents) were appointed as administratrixes of the estate. They made attempts to complete the sale with the appellant to no avail. The respondents then approached the appellant with a notice to complete in 2014. The appellant declined stating that the deceased did not pay the full purchase price. 2 .3 Aggrieved, the respondents decided to sue the appellant, in the High Court at Kitwe seeking the following reliefs: (i) An Order for specific performance of a contract of sale of 6.3 hectares of farm la nd being a subdivision of farm 1411B Kamfinsa, Kitwe. (ii) Alterna tively an Order for damages for failure to complete the sale. (iii) An Order for damages for all losses and expenses occasioned by reason of d elay or default in completing the sale. (iv) An Order for interest and costs. J4 2.4 The appellant filed a defonce and disputed the respondents' claims .. He averred that after payment of the purchase price, the appellant yielded possession of the farm to the deceased. The deceased was in occupation of the farm from 1996 to 1998, when he abandoned the farm together with his right, title or interest therein. The notice to complete was therefore, incompetent. In addition, that the land having been abandoned by the deceased more than twelve years from the date of the contract of sale, the action was statute barred under the provisions of T:h,e LimitaUon Ac t 1939. 2 .5 At the hearing, the 2 nd respondent, testified that following the death of their father and her appointment as co a dministratrix, they discovered documents relating to the subject property. They .found a letter of offer dated 29th July 1994., receipts showing payme n ts tow:ards the purchase price, an approval letter for allocation of land and some building plans . According to the receipts, the outstanding balance on the purchase price was K125 .00. JS She further testified that when she approached the appellant over the sale of the farm, he refused stating that the deceased had not paid anything towards the purchase of the property. The second time they visited the appellant, they were informed that someone had built on the property and the matter was in court. 2.6 The appellant called two witnesses. The first witness was Sammy Maywynne Siame, (DWl). He testified that he was the owner of Farm No. 1411 /B. The Farm had not been subdivided though he applied for consent to subdivide and submitted proposed survey diagrams. He obtained consent from the council but the property was not surveyed because the deceased did not pay the requisite fees, as agreed. Upon his death in 2012, the deceased was not in possession of the land, as he did not make any request for possession. He further testified that the deceased paid a total sum of K2,500.00 (rebased) and there was a balance of Kl25.00. The deceased abandoned the process and the balance has not been paid to date . 2.7 During cross examination, he admitted that the deceased had started farming on his portion of land from 1996 to 1998 but denied that the deceased took possession of the property. Furthermore, that he declined to receive the balance and claimed that the property had been encroached upon and as such he was unable to legally transfer title to any purchaser as the case concerning the encroachment was before the Lands Tribunal. 2.8 The appellant's second witness was Ivy Napima Mwanza, who testified that sometime in 2014, she was approached by the respondents who were claiming ownership of the property in issue. In her presence, DWI informed them that the deceased had not finished paying for the property and that they should produce receipts. The respondents returned with receipts but the receipts did not indicate that there was a balance. 2.9 In cross examination, she denied that the farm was sold as there was still a balance on the purchase price. She confirmed that she used to see the deceased at the farm, and that he J7 used to grow maize and groundnuts and would complain about thefts. 3.0 Issues for determination 3.1 The lower court was of the view that the issues for its determination were: 1. Whether or not the notice to complete issued by the plaintiffs (respondents) was tenable in the face of the defendant's pleading that the case was statute barred. 2. Whether or not specific performance was the reasonable remedy to award in the case. Findings: 3.2 Regarding the appellant's claim that the respondents' case was statute barred as time started running in 1998, when he left the farm, the trial Judge found that section 4(3) of The Limitation Act which provides that actions involving land should be commenced within twelve years of the date the cause of action arose, was inapplicable. She opined that the applicable section was 5(2) which provides that: "where any person brings an action to recover any land of a deceased person, whether under a will J8 o:r o.n intestacy, and the deceased person was on the date of .his death in possession of the land or, in the case of a ,T'<ent-,ch,arge created by will or t ,aki:ng effect upon h·is d ,eath, in po.ssession of the land ch·arged, ,an,d wast.he last person entitled to t .he land to b .e :in possessi,cm there;fo.re, the right of action .s,h,al.l be de,emed to have accrued on the date of his death." The trial Judge concluded, that time started running on 13th October, 201:2 when the deceased died. Consequently, the action which was commenced in 2015 was not statute barred. 3.3 After considering the documents on record, such as the letter from the appellant to the deceased, requesting for monies towards acquisition of documents from Lusaka and the appellants application for subdivision, the trial court found that the appellant gave consent to subdivide. Furthermore, that he could not be heard to say that the deceased's certificate of title was not processed because he informed the deceased that the certificate of t itle was ready for collection. 3.4 The Judge further concluded that the deceased had a complete right and inte~est in the 6.3 hectares he had purchased. ~elying on the case of Woods v Mackenzie Hill J9 Limited1 , that " ... Although the paragraph we have ,quoted from paragraph 548 of Halsbury's refers to performance at the stipulated time, it is accepted that, in cases of purchase of land delay in completion frequently occurs but does not automatically result in implied repudiation. In order to consider whether or not repudiation by purchaser can be implied in this case, the whole of the facts must be looked at. The most salient facts are that out of the purchase price ... the purchaser paid ... " The learned trial Judge found that the deceased had paid a substantial amount towards the purchase price and only a minimal amount of K125.00 was outstanding; as such there could be no implication that the deceased's conduct amounted to a repudiation of the contract. 3.5 With regard to the remedy of specific performance, the learned Judge relied on the Supreme Court decision in Gideon Mundanda v Timothy Mulwani & The Agricultural Finance Co. ltd and S. S. Mwiinga2 case where it was held that: "a Judge's discretion in relation to specific performance of contracts for the sale of land is limited as damages cannot adequately compensate a party for breach of contract for the sale of land: JlO '·'sp,edfic p ,erforman,ce will not be refused merely bec,au.se, o ,wing to events which have happened sin,ce the contra.ct was made. The completion of the contract ,wiU cause hardship ..... '' The Judge observed that in casu, no evidence was adduced on the alleged encroachment upon which the Court could evaluate the extent of the encroachment and award damages instead of specific performance. She opined that this was an appropriate case to award the remedy of specific performance, in light of the fact that the land belonged to the deceased and the appellant yielded possession. The appellant had even promised the deceased that he would collect the certificate of title for him. 4. 0 The Appeal: 4.1 Dissatisfied with the Judgment, the appellant has appealed to this Court and advanced five grounds of appeal which read as follows: 1. The learned tria,l Judge in the court below ,e.rred in law and fact when she held that the Plaint(ffs' action ,b,roug.ht on 12th January 2015 ·is within the pre.scribed p ,eriod when the cause ,of action founded ,on breach of contract of a simple contract of sale of land accrued befor,e 1998 to the deceased Godfrey Ns,himba Daka and in the alternative. 2. The learned trial Judge in the c,o,urt below erred in law and fact when she held that it has not been proved on a balance of pr,o,babilities that the deceased had deserted th,e land in 1998 but that he had continued cultivating it until he fell ill and died in 2012 which findi·ng of fact flies in the face of pleaded pa.ragr.aphs ,5 and 6 of the Statement of Claim and the evidence of the parties hereto that the late Godfrey N'shimba Daka never had possess·fon of the said land after 1998. 3. That the learned trial Judge in the court ,below erred in law and fact when she held that th,e Plaintiffs as administratrixes of the deceased's estate where covered by section 5(2} qf the Limitation Act 1939 when the late 1Go,dfr,ey N'shimba Daka was not in possession of the land on the date of his death ,and was not entitled to be in possession of the said land. 4. The learned trial Judge in the c,ourt b,elow erred in law and fact when she orde,r,ed the equitable remedy of specific performance despite that the late Godfrey Nshimba Daka and the Plaintiffs came to the court .fJe'low ,wit.h dirty hands of not having paid the Kl25 .. 00 outstanding to the Defendant and s ,lept on their cause of action that had accrued befo.re 1998. J12 5. The learned trial Judge in the court below erred in. law and fac:t when s·he ordered costs against the Defenda.nt when th.e Plain.tiffs went to the court below with dirty hands and the late Godfrey Nsh.imba, Dak.a had slept on his caus·e of ac.ti.on. that had accrued before 1998. The Arguments: 4.2 Both parties filed heads of argument. At the hearing of the appeal they both relied on their respective heads of argument. 4.3 Mr .. Katebe who appeared for the appellant argued, in support of ground one, that the respondents' cause of action was founded on a simple contract of sale of 6.3 hectares of farm land. That according to section 2(1.} of The Limitation. Act, 1939 which applies to Zambia by virtue of The British Acts Extension. Act, actions founded on simple contracts or tort could not be brought after the expiration of the six years from the date on which the cause of acti.on accrued. It was contended that the evidence on record revealed that the appellant offered the said piece of land to the deceased on 29th July 1994 and the last payment towards the purchase price was in 1998 leaving a JB balance of K125.00. The cause of action therefore, arose 1n 1998. 4.4 It was further submitted that, there was no communication from the deceased concerning the sale and purchase of the land after 1998 except for the notice to complete dated 7 th October 2014. The conditions of the offer letter did not provide for a notice to complete and that in any case, the said notice ought to have been served on the appellant within the six years when the cause of action accrued and not after 14 years. Consequently, the notice to complete had no legal effect as the action for recovery of land was statute barred. 4.5 The gist of the argument in ground two, is that the findings by the trial court to the effect that the deceased was in possession of the land and continued cultivating the land until he died was against the weight of evidence on record. According to the appellant, the evidence revealed that the deceased had only lived on the farm for about 3 years from 1996 to 1998, when the said land was abandoned. The appellant relied on the cases of Nkhata and 4 others v The J14 Attorney General3 , Wilson Masauso Zulu v Avondale Housing Project Limited4 and Ndongo v Moses Mulyango & Roostico Banda5 , where the Supreme Court pronounced instances when an appellate Court could reverse findings of fact made by a lower court. 4.6 With regard to ground three, it was submitted that the learned trial court erred when it found that the administratri.xes were covered under section 5 (2) of The Limitation Act. According to the appellant, the deceased was not in possession of the land at the time of his death as he had abandoned the land in 1998. 4.7 In support of grounds four and five, our attention was drawn to the case of Development Bank of Zambia and Livingstone Saw Mills Limited v Jet Cheer Development (Z) Limited6 and it was submitted that, despite the fact that the respondents went to court with unclean hands, the trial court proceeded to award an equitable remedy of specific performance, contrary to the maxim of "he who comes to equity, must come with clean hands." According to the appellant, the respondents went to court with unclean hands based on the fact that the outstanding balance JlS on the purchase price was not paid. As such they should not have been awarded costs in line with the Supreme Court decision in the cases of Rodwell Kasokopyo Musamba v M. M. Simpempa (T / A Electrical and Building Contractors)7 and Emmanuel Mutale v Zambia Consolidated Copper Mines Limited8 · 4.8 In response to ground one, the respondents' counsel, Mr. Chalenga, submitted that the trial court was on firm ground when it found that the action was not statute barred. That it is clear from sections 2(1) and 5(2) of The Limitation Act that the limitation period started running at the time of the deceased's death which was 13th October, 2012. The respondents commenced their action on 12th January 2015, which was well within the prescribed period of six years. 4.9 The respondent contended that the Law Association of Zambia General Conditions of Sale places obligations on both parties to a contract of sale and as such, if there was any event giving rise to the cause of action in 1998, the appellant had the right of action to claim for the payment of the balance on the purchase price. J16 4.10 It was further argued that in cases of statutory limitation, the Court has inherent powers to exercise its discretion. In support, thereof, the cases of Gardner v Jay9 and Attorney General v Seong San Company Limited10 were cited where the Supreme held that: "it is trite law that time is no bar to an equitable claim .... " 4.11 Thus, the respondents' claim of specific performance being an equitable claim, the statute of limitation is inapplicable. 4.12 With regard to grounds two and three it was argued that a party alleging desertion or abandonment must not only prove physical absence but must also prove lack of animus revertendi, that is the intention to return to the same place again. In the present case, PWl testified that the deceased and his wife had moved to the farm and conducted agricultural activities for about three years. The deceased and his wife only left the farm due to the wife's illness and her subsequent death. This evidence coupled with the fact that the deceased had paid a substantial amount of the purchase price was J17 incompatible with the conduct of a party intending to abandon his land. The fact that the deceased was not living on the farm, did not amount to him deserting the land since he was still the owner of the said land. 4.13 The appellant yielded vacant possession of the land to the deceased and allowed him to have quiet enjoyment of the land. The Court was further referred to a dictionary definition of possession as: "control over property" In addition, that possession in law means: "ownership of land or building without occupying . them." 4.14 According to the respondents, based on the evidence of DWl, the appellant had allowed the deceased to take possession of the farm and have full control over it. As such the deceased had legal control and interest in the land in question as found by the trial court. Relying on the cases of Nkhata and Others v The Attorney General3 , A. M. I Zambia Ltd and Peggy Chibuye 11 , Ndongo v Moses Mulyango and Roostico Banda5 , it is argued that Jl8 l the appellant has not sufficiently demonstrated that this is an appropriate case in which as an appellate Court we can reverse the findings of fact made by the lower court. 4.15 Coming to ground four, it was argued that the contract of sale executed between the parties was subject to the Law Association of Zambia General Conditions of Sale 1997. It was submitted that where a party to a contract of sale is in default, the other party must give notice to complete requesting the other party to fulfill its obligations under the contract. The case of Crown Cork Company (Z) Limited v Pamela Helen Jackson 12 was relied upon as authority. 4.16 The appellant never issued a notice requesting the deceased to fulfill his obligation by paying the outstanding sum of K125.00 of the purchase price. Even in the absence of the notice to complete by the appellant, the delay in completion cannot automatically result in repudiation of the contract. The deceased paid a substantial amount of the purchase price and as such the balance of K125.00 cannot amount to a repudiation of the contract of sale. In any event it was open to J19 the injured party to seek recourse in the courts of law for damages or specific performance. In support of this argument, reliance was placed on the case of Gideon Mundanda v Timothy Mulwani & The Agricultural Finance Co. Ltd and S. S Mwiinga. 2 4. I7 Furthermore, the respondents brought to our attention, the evidence of PWI, who testified that six months after the death of the deceased, the respondents approached the appellant over the said piece of land in order to complete the transaction, the appellant refused stating that the deceased did not pay the purchase price. It was only after the receipts were shown to him, that DWI admitted that the deceased had paid some monies and that there was a balance of KI25.00. DWI refused to accept the KI25.00 on the basis that the farm was encroached upon. It was therefore, clear from the above evidence that it is the appellant who had come to court with unclean hands. The case of Development Bank of Zambia & Livingstone Saw Mill Ltd v Jet Cheer Development (Z) Limited6 cited by the appellant should be distinguished from the present case, as that case J20 ' l involved an element of fraud on the part of the respondents, which is not the case in this matter. 4.18 In response to ground five, the respondents relied on the cases of Collett v Van Zyl Brothers Limited13 , Musamba v Simpempa14 and General Nursing Council of Zambia v Mbangweta 15 for the position that the award of costs in any proceedings is in the discretion of the court. 4.19 We were also referred to the case of Y. B. and F. Transport v Supersonic Motors Limited16 , where the trial court held that: "The general principle of law is that costs should follow the event, in other words, a successful party should normally not be deprived of costs, unless on account of wrong doing in the action or in the conduct of such action." The argument that the respondents came to court with unclean hands is unsubstantiated. 5.0 Issues on Appeal 5.1 The issues the appeal ra.1ses are; whether section 5 (2) of the Limitation Act 1s applicable to this case and whether the said J21 Act is applicable at all in light of equitable claims by the respondents. Key to this issue is the question whether the court below erred to order specific performance. The other issue arising is whether the agreement between the appellant and the deceased was repudiated automatically by the deceased's failure to pay the balance of the purchase price and not being in physical occupation. In determining the issues, we will consider grounds one to four simultaneously as they are interlinked. 6.0 Resolution/Decision on Appeal 6.1 We have considered the Judgment and submissions of both parties, on the issue of whether the action was not statute barred in accordance with section 5 (2) of The Limitation Act as held by the trial Judge or whether it was statute barred by section 2 (1) of the said Act as contended by the appellant. 6.2 In the case of Attorney General v. Seong San Company Limited10, cited by Mr. Chalenga, the Supreme Court held that: "The English Statute Limitation Act of 1939 Section 2 (7) as read together with the Law J22 Reform (Limitation of Actions) Act Chapter 72 of the Laws of Zambia, regarding equitable remedies states that: This Section shall not apply for any claim for specific performance of a contract and for an injunction or for other equitable relief. .. " That Court held further: "It is trite law that time is no bar to an equitable claim" 6.3 The question that arises therefore, is, whether the respondents in casu, sought equitable reliefs. A perusal of the reliefs sought as outlined in paragraph 2.3 reveal that the main relief sought was of specific performance of the contract of sale. It is well settled that specific performance is an equitable remedy. Going by the Supreme Court decision in Attorney General v. Seong San Company Limited 10, the Statute of Limitation is inapplicable to this case. The trial Judge misdirected herself when she found that section 5 (2) of the said Act was applicable on the facts of the case. We therefore, we find no merit in the arguments on section 2 (1) of the Act based on a simple contract J23 and that the cause of action arose in 1998. Ground one 1s therefore dismissed. 6.4 It is settled law that a decree of specific performance can only be made in certain circumstances especially where damages are inadequate as a remedy. Black's Law Dictionary, defines specific performance as "the rendering as nearly as practicable, of a promise performance through a Judgment or decree; a court ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when sale of real estate or a rare article is involved. Specific performance is an equitable remedy that lies within the court's discretion to award whenever the common law remedy is insufficient." 6.5 It was not disputed in this case that there was a contract of sale between the deceased and the appellant relating to the land in issue. This was evidenced by the letter of offer which clearly set out the terms and conditions of the contract, the parties and the purchase price. The letter satisfied section 4 of the Statute of Frauds. J24 The appellant must fulfil his contractual obligation. Damages are inadequate in this case as only specific performance will do complete and perfect justice as held by the trial court. The agreement involved sale of land and both parties had taken steps towards fulfilling the contract. The deceased had paid a substantial amount of the purchase price and took possession. He even engaged in farming activities as testified by PWl and DW2. The appellant applied for subdivision and promised the deceased that he would go and collect his certificate of title. 6.6 We agree that possession at law includes ownership of land or building without occupying it. Thus, the trial Judge was on firm ground when she found that the deceased had legal control and interest in the land in question. The findings of fact that the deceased had paid a substantial amount and taken possession of the land he had purchased, were supported by the evidence on record. Just because he left the farm to nurse his ailing wife does not legally entail that he lost J25 possession. We therefore, cannot interfere with these findings in line with Nkhata and 4 others v The Attorney General3 case. 6.7 Furthermore, we find the appellant's arguments that because of the outstanding balance of K125.00, the respondents had come to Court with dirty hands to be meritless. We are of the considered view, that the appellant could have issued a notice to complete, in common law, (as the Law Association of Zambia General Conditions of Sale were inapplicable, as they were not incorporated into the contract), requesting the deceased to fulfil his obligations under the contract. As submitted by Mr. Chalenga, the appellant could have even sought the relief of specific performance or damages in the courts of law. Sitting back and doing nothing did not help his cause. He even failed to adduce evidence that the land was encroached upon and pending litigation in the Lands Tribunal. 6.8 All in all we are of the firm view that on the facts of this case, the trial Judge properly ordered specific performance of the contract of sale between the appellant and the deceased, as J26 guided by the Supreme Court in Gideon Mundanda v Timothy Mulwani & The Agricultural Finance Co. Ltd and S. S. Mwiinga2 case. In light of the foregoing, grounds two to four are dismissed. 6. 9 Coming to ground five, having dismissed ground four which contended that the respondents came to Court with dirty hands, we are inclined to uphold the award of costs to the respondents. As submitted, costs follow the event. A successful party would be denied costs if they did something wrong in the action or in the conduct of it as held in the case of Y. B. and F. Transport v Supersonic Motors Limited 16 • There is no such evidence on record against the respondents. 6.10 In the net result, the appeal is de f merit. It is dismissed with costs to the respondent Court and below, to be taxed failing agreement. J. CHASHI COURT OF APPEAL JUDGE ~f~~dif' COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE J27