Cacius Mulenga v Annie Lupiya (APPEAL NO. 314/2023) [2023] ZMCA 392 (2 October 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 314/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CACIUS MULENGA APPELLANT AND ANNIE LUPIYA RESPONDENT CORAM: MCHENGA, DJP, NGULUBE AND MUZENGA, JJA. On 17th September, 2024 and 2 nd October, 2024. For the Appellant: Mrs. Z. Chirambo - Kakunka - Messrs Katongo & Company For the Respondent: No appearance JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Musukuma & Muleva vs Chibanda, Registrar of Lands and Deeds & The Attorney GeneralAppeal No. 21/2010 2 . Masauso Zulu vs Avondale Housing Project (1982) Z. R. 172 3. Mohammed vs The Attorney General- SCZ Judgment No. 26 of 1982. 4. Communications Authority vs Vodacom Zambia Limited - SCZ Judgment No. 2 1 of 2009 5. Wilson vs Northampton & Banbury Junction Railway Company Limited [ 1873} Chancery Appeals 279 6. Timothy Hamaaundu & Muuka Mudenda vs Tobacco Board of Zambia -Appeal No. 32 of 2002 7. Greenwood vs Bennet 208 Ala. 680 (Ala. 1923) 8. Mweempe vs The Attorney General & Another-Appeal No. 15/ 2008 9. Jane Mwenya and Jason Randee vs Paul Kapinga - SCZ Judgment No. 4 of 1998 10. Vincent Mijoni vs Zambia Publishing Company Limited -Appeal No. 10 of 1986. 11. Sablehand Zambia Limited vs Zambia Revenue Authority (2005) Z. R. 109 12. Rosemary Phiri Madaza vs Awadh Keren Coleen (2008) Vol. 1 Z . R. 12 Works referred to 1. Atkins Court Forms, 2 nd Edition Volume 14 (1991 issue) and Volume 37 (1995) 2 . Chitty on Contract: General Principles 24th Edition 1.0 INTRODUCTION 1.1 This appeal is against a Judgment of the High Court (Chembe, J , as she then was) dated 26 th October, 2022 pursuant to which -J2- the Court found the respondent legally entitled to House No. 12888 Kitwe which she purchased from Maureen Chileshe. Further that the appellant surrenders all documents relating to the ownership of the property and execute a Deed of Assignment. 2.0 BRIEF BACKGROUND 2 . 1 The appellant was the defendant in the Court below while the respondent was the plaintiff. 2 .2 The background to this matter 1s that the respondent commenced an action in the Court below seeking the fallowing reliefs- i. An order for specific performance by the defendant of an agreement of sale by the defendant to the plaintiff of Stand No. 12888 Kitwe made between the plaintiff and the defendant on or about 22nd September, 2014; ii. An order that in the event of the defendant's failure to complete; the Honourable Registrar executes a Deed of Assignment of Stand No. 12888 Kitwe from the defendant to the plaintiff; iii. An order of interlocutory injunction to restrain the defendant his agents and or servants from -J3- interfering with the plaintiff's quiet enjoyment of Stand No. 12888 Kitwe andfromfurther destroying and or burying the foundation dug by the plaintiff on the said property. 2 .3 The respondent claimed that when she became aware of PW2's intention to sell a parcel of land, PW2's agents took her to inspect the property. The price of the land was K85,000.00 but after successful negotiations, the price was reduced to K75,000.00. The respondent paid a deposit of K66,000 .00 leaving a balance of K9, 000. 00. When she was handed the documents for the property, the respondent observed that they did not bear PW2's names but were in the names of the appellant. 2.4 The respondent contended further that she conducted a search at the Council and confirmed that the property was registered in the appellant's names. She returned to PW2's house and insisted that since the documents had the appellant's names, he should be the one to execute the contract of sale. A contract of sale was therefore executed between the respondent and the appellant, in relation to Stand No. 12888 Nkana East Kitwe at -J4- a consideration of K75,000.00 and was witnessed by two witnesses. 2.5 The respondent contended that after she made the final payment to PW2, the appellant was refunded the sum of K5 , 000. 00 for the service charges he incurred towards the piece of land. The respondent cleared the land and discovered that the appellant buried the foundation on the property stating that he was the lawful owner of the property. 2.6 In cross examination, the respondent told the Court that she did not know the relationship between PW2 and the appellant but that she paid the purchase price to PW2 because she was the one in possession of the documents for the property. That this indicated that she had rights over the property. She stated that she did not know of the circumstances surrounding the payment of K5,000.00 to the appellant and that PW2 did not inform her that she purchased the property from Mr. Kabwita. She stated that the appellant's signing of the contract of sale indicated that PW2 had the authority to deal with the property. 2. 7 PW2 informed the Court that she sold the property to PW 1 after she purchased it from Mr. Kabwita, a former councillor. She -JS- stated that she acquired it in exchange for a Fuso truck. That because the land was uneven, she asked two agents to find a purchaser who would be interested in developing it. The two agents brought the respondent who purchased the plot at the price of K75,000 .00. She explained that when the respondent noticed that the documents were bearing the appellant's names, she insisted that he should be the one to sign the contract of sale. 2 .8 PW2 stated that the contract was executed between the appellant and the respondent and that the witnesses to the contract were herself, her husband, Mr. Sapula, Mr. Mwenya, the respondent and her husband. 2.9 That after four years from the time the contract of sale was signed between the parties, the appellant informed PW2 that the records at Ministry of Lands showed that the respondent had not changed ownership of the property and therefore it still belonged to him. 2 . 10 In cross examination, she stated that she did not know if Mr. Kabwita, the person she purchased the property from, had any rights over it. That however, Mr. Kabwita informed her that he -J6- had assisted the appellant to acquire the plot but the appellant did not pay for it because the ground was uneven. She told the Court that Mr. Kabwita sold the land on the appellant's behalf and the only document she had in relation to the property was the offer letter and the appellant's national registration card. She admitted that the respondent paid the purchase price to her. 2.11 The appellant contended that sometime in 2012, he applied for a piece of land from the Kitwe City Council. He was given an off er letter. He paid the sum of KS, 000. 00 for the plot and Kl ,000.00 for survey fees. He stated that he noticed that his names were not spelled correctly and he gave his friend Charles Kabwita KS00.00 together with his offer letter and national registration card to rectify the anomaly for him at the Council. That Charles Kabwita became evasive which caused him to report the matter to the police. 2. 12 He narrated that sometime in 2014, he found some men working on his property and they directed him to the respondent who was not willing to discuss the matter. In 2018 when he went to the Ministry of Lands to submit drawing plans -J7- for his house, he was informed that the respondent had already submitted drawing plans. The respondent informed her that she had been looking for him to facilitated change of ownership of the property. When he reported the matter to the police, he was shown a con tract of sale and was informed that he sold the property to the respondent. 2.13 In cross examination, he stated that he got the letter of offer from the Ministry of Lands in 2012 and another one in 2014. He admitted that the national registration card which was on record is his but that the signature on the national registration card was different from what was on the contract of sale in question. He denied having signed the contract of sale or having known the witnesses who endorsed it. He stated that Kabwita did not disclose the transaction between him and PW2. 3.0 DECISION OF THE LOWER COURT 3 . 1 The lower court considered the pleadings and the evidence before it and gleaned that the issue for determination was whether there was an enforceable valid contract between the appellant and the respondent. The Court concluded that the defendant's conduct showed that he deliberately avoided -J8- signing the necessary documents to have the ownership of the property changed. 3.2 The lower Court found that the respondent complied with the contract and the appellant only came into the picture when she noticed that documents for the property had the appellant's details. That even though the appellant denied having executed the contract of sale, he did not show what steps he took to ensure that Kabwita (whom he gave the offer letter) fulfilled his part of the agreement to rectify the anomaly on his offer letter. Further that the appellant did not call him as a witness. That the fact that the off er letter showed the same fees as the ones on the invitation to treat as the amount paid by the respondent and the fact that there was no evidence produced to show the alleged anomaly on the off er letter, indicated that there was never such a letter with an anomaly. 3.3 It was found further that the fact that the appellant allowed the respondent to pay for all the service charges, which indicated that he had knowledge of the transaction between PW2 and the respondent and that is why he was paid the sum of KS,000.00 as a refund for the service charges. That this view was -J9- supported by the fact that the appellant signed the contract of sale which indicated that the respondent would be responsible for all the land charges. 3.4 The lower Court therefore found that the respondent had proved her claims on a balance of probabilities and ordered that she was legally entitled to House No. 12888. 4.0 THE APPEAL 4.1 The appellant was discontented with the decision of the lower court and appealed to this court, advancing four grounds of appeal couched as follows- 1. The Honourable trial Judge erred in law and fact in passing the burden of proof from the respondent to the appellant; 2. The Honourable trial Judge erred in law and fact in holding that the respondent had proved her case on the balance of probabilities when in fact not; 3. The Honourable trial Judge misdirected herself in glossing over trite law that a seller who had no title could not pass on title to a buyer; and 4. The Honourable trial Judge misdirected herself in glossing over the fact that the defendant pleaded falsity and advanced particulars thereof. -J10- 5.0 HEADS OF ARGUMENT 5.1 The appellant filed Heads of Arguments in support of the appeal. In arguing ground one, Counsel for the appellant contended that the onus was on the respondent to prove that the appellant was the one who signed the contract of sale and that PW2 was vested with ownership of the property. That therefore, the lower Court erred in basing the success of the respondent's case on the alleged failure of the appellant's defence, without establishing whether or not the respondent had discharged her evidential burden of proof. Counsel argued that having invoked the aid of the law, the respondent must have been the first to prove her case. 5 .2 In arguing that he who alleges must prove the allegation, Counsel made reference to various authorities which included the cases of Musukuma & Muleva vs Chibanda, Registrar of Lands and Deeds & The Attorney General, 1 Masauso Zulu vs Avondale Housing Project2 and Mohammed vs The Attorney General. 3 5.3 In arguing ground two, Counsel argued that the remedy for specific performance presupposes the existence of a contract and -Jll - .. cannot be available where there is no contract. That therefore, the respondent needed to prove that she was entitled to the remedy of specific performance. Reference was made to the case of Communications Authority vs Vodacom Zambia Limited4 where it was held that the remedy of specific performance is an equitable remedy which is available to the aggrieved party to a contract if the normal common law remedy for damages for breach of contract is not an adequate remedy. 5.4 It was accordingly argued that in casu, the contract of sale was purportedly between the appellant and the respondent but the respondent's evidence shows that the transaction was with PW2. That therefore the order for specific performance was not tenable in the circumstances. 5 .5 In relying on Atkins Court Forms, 2 nd Edition Volume 14 (1991 issue) and Volume 37 (1995) and the case of Wilson vs Northampton & Banbury Junction Railway Company Limited5 Counsel argued that the Court has the discretion whether or not to grant specific performance but the discretion should be exercised in accordance with set principles and authorities. He argue d further that the Court may order specific -J12- performance where it will do more perfect and complete justice than the award of damages. 5 .6 That in casu, there was no contract between the appellant and PW2 and the respondent denied having entered into a contract. In relying on the learned author of Chitty on Contract: General Principles 24th Edition, page 21, it was submitted that the basic requirements for creation of a contract between the appellant and PW2 were not present. 5.7 It was submitted further that it was erroneous for the respondent to have directed a claim of specific performance against the appellant because the transaction was with PW2 with whom the respondent negotiated the price. Reference was made to the case of Timothy Hamaaundu & Muuka Mudenda vs Tobacco Board of Zambia6 where it was held that specific performance cannot be granted for a deal that was not in existence as in this case. That in any event, the appellant was not privy to the contract entered into between the respondent and PW2. 5 .8 Counsel further found fault with the finding of the lower Court that the rightful person to have executed the contract of sale was the appellant because according to Counsel, it is clear that the -J13- respondent did not purchase the property from the appellant but from PW2. 5.9 In ground three , it was submitted that the trial Judge erred by not considering that PW2 had no title to pass onto the respondent. That this was so because there was no evidence of any transaction between the appellant and PW2 and no evidence of any consideration exchanging hands between them. That further there was no evidence that PW2 handed over the Fuso truck to Charles Kabwita as consideration for the property in issue. The Court's attention was drawn to the cases of Greenwood vs Bennet7 and Mweempe vs The Attorney General & Another8 where it was held that an individual without title cannot transfer title to another person. 5.10 It was argued that there was no evidence of the transaction between the appellant and PW2 in form of a contract or a note or memorandum as per requirement in Section 4 of the Statute of Frauds 1677. As to what amounts to a note or memorandum, Counsel made reference to the cases of Jane Mwenya and Jason Randee vs Paul Kapinga9 and Vincent Mijoni vs Zambia Publishing Company Limited. 10 -J14- 5.11 In support of ground four, it was submitted that the lower Court's finding that the appellant did not plead fraud or misrepresentation was erroneous because the appellant pleaded falsity and gave particulars in his Defence and Counterclaim. It was submitted that the appellant distanced himself from the contract of sale and there is evidence on record to show that he reported the matter to the police. 5.12 In relying on the case of Sithole vs The State Lotteries Board (supra), Counsel submitted that there was abundant evidence to show that the appellant refused to sign the contract of sale and reported the matter to the police. That the police took signature samples though the results were not before the lower Court. Counsel argued that if the Court takes into account all the circumstances of this case, it would come to the conclusion that the appellant's assertion of falsity was credible. 6.0 HEARING 6.1 At the hearing of the appeal, Mrs. Chirambo - Kakunka submitted that she would rely on the heads of argument filed. There was no appearance for the respondent. -J15- 7.0 CONSIDERATION OF THE MATTER AND DECISION 7 .1 We have considered the record of appeal and the appellant's arguments. After examining the four grounds of appeal proffered by the appellant, we have concluded that grounds one, two and four can be dealt with collectively while ground three can be addressed independently. We shall therefore first address grounds one, two and four. 7.2 The issues we are being called upon to interrogate in grounds one, two and four are whether the lower Court erred in its finding that the respondent proved her case on a balance of probabilities and whether the learned trial Judge erred by transferring burden of proof to the appellant. 7 .3 It is not in dispute that the respondent purchased the piece of land from PW2 and signed a contract of sale. According to the respondent, when she learned that the documents for the land were in the appellant's names, she insisted that he should b e the one to execute the contract of sale. Her testimony was that the appellant was contacted and he signed the contract of sale and was given the sum of KS ,000.00 as a refund for service charges. -J16- • 7.4 The appellant claimed he was unaware of the contents of the contract of sale, and denied having signed it. Therefore, by pleading that the contract of sale was a falsity, he was in effect pleading fraud or forgery. 7. 5 In the case of Sablehand Zambia Limited vs Zambia Revenue Authority,11 the Supreme Court guided that- 1. Where fraud is an issue in the proceedings, then a party wishing to rely on it must ensure that it clearly and distinctly alleged. Further, at the trial of the cause, the party alleging fraud must equally lead evidence, so that the allegation is clearly and distinctly proved. 2. Allegations of fraud must, once pleaded, be proved on a higher standard of proof, than on a mere balance of probabilities, because they are criminal in nature. 7 .6 This position was re-sounded in the case of Rosemary Phiri Madaza vs Awadh Keren Coleen12 where it was held that- "A defendant wishing to rely on the defence of fraud must ensure that it is clearly and distinctly alleged. At trial a defendant must lead evidence to clearly and distinctly prove the allegation." -J17- • 7.7 In the particulars of the alleged falsity, the appellant alleged that he has never executed any contract of sale and that he has been in possession of the property at all times. Therefore, the burden of proof was on the appellant to prove his allegations. Apart from the assertion that the signature on his national registration card did not match the signature in the contract of sale, no forensic evidence was called by the appellant at trial to show that the signature appended on the contract of sale was forged. The appellant merely denied ever executing the contract of sale. It is our considered view that this does not meet the required standard of proof, which is higher than on a balance of probability, to disprove the respondent's assertion that he executed the contract of sale. We are of the view that the appellant did not lead evidence to clearly and distinctly prove the allegation of fraud or forgery. Therefore, the learned trial Judge was on firm ground when she held that the respondent proved her case on a balance of probability. 7 .8 Further the circumstances of this case help to form the view that the appellant signed the contract and had knowledge of the transaction between the respondent and PW2. With regard to -J18- the appellant's defence that he gave his NRC and offer letter to Charles Kabwita to assist him rectify the anomaly on the documents, the learned trial Judge found that this defence did not assist him because he did not point to what anomaly was on the off er letter. Further that no evidence was adduced to show the offer letter with the anomaly or call Charles Kabwita as a witness. That additionally, he did not adduce evidence of the report he made to the police to confirm his story. The lower Court also noted that the appellant was offered the land in 2015 but had not carried out his developments until 2018. 7. 9 After the appellant was issued with the invitation to treat, the amount to be paid was the sum of K2,695.78 which was paid by the respondent as evidence by the receipt on page 66 of the record of appeal dated 18th August 2015, after the contract of sale was signed. That this is in harmony with clause 10 of the contract of sale which shows that the respondent would pay all fees and charges pertaining to obtaining the title deed. Ground one, two and four of the appeal therefore fails. 7 .10 The contention in ground three is that the lower court made an error by failing to consider that the seller of the property in -J19- question (PW2), did not have a valid title to transfer ownership to the respondent. 7 .11 Having found that the appellant failed to prove fraud and/ or forgery of the contract of sale in issue, ground three of the appeal also fails. 8.0 CONCLUSION 8.1 The net result is that the appeal fails in its entirety for lack of merit. We further uphold the Judgment of the lower Court with regard to the award of costs and they are awarded to the respondent, to be taxed in default of agreement. DEP P. C. M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J20-