Sabarwal v Chanda (Appeal 19 of 1994) [1994] ZMSC 140 (27 September 1994)
The trial judge erred by failing to grant or refuse the application for leave to issue a writ of possession solely on the basis of illegality. The matter must be remitted for retrial to resolve whether the contract of sale subsists and whether specific performance can be ordered.
Source-derived case information.
- Citation
- [1994] ZMSC 140
- Parties
- Appellant: Delinder Singh Sabarwal; Respondent: Mathew Chanda
- Court
- Supreme Court of Zambia
- Jurisdiction
- Zambia
- Case Number
- Appeal 19 of 1994
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- appeal allowed; case remitted for retrial
- Legal Topics
- Illegality of Contract, Specific Performance, Writ of Possession, Remittal for Retrial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Delinder Singh Sabarwal
Appellant
Mathew Chanda
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial court erred by not granting or refusing the application for leave to issue a writ of possession due to illegality of the contract
- 2 Whether the contract of sale exists apart from the illegal agreement as to performance
- 3 Whether specific performance can be ordered and on what terms
Ratio Decidendi
The trial judge erred by failing to grant or refuse the application for leave to issue a writ of possession solely on the basis of illegality. The matter must be remitted for retrial to resolve whether the contract of sale subsists and whether specific performance can be ordered.
Court Disposition
appeal allowed; case remitted for retrial
Orders
- Case sent back for retrial by another judge of the High Court
- Parties to agree on terms of dispute and apply to the court below for resolution
Full Case Text
Judgment text and source record
1 paragraphs
IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) , ■ ‘ " ■ Appeal No. 19 of 1994 ’S; SCZ/8/121/1993 - < BETWEEN: Delinder Singh Sabarwal ^2-11-25 and Mathew Chanda 522222^221 - * i ' f. ' • V»" ’ • .* ■/ ; . ' . - ' ' ' ;,r . ■ Coram: Gardner, Chai la and Chirwa JJS.» 27th September, 1994^ . j j K. Maketo of Christopher Russel Cook and Co, for the appellant, : K. M. Simbao of Mulungushi Chambers for the respondent. W H M M * to. • Ito * ■■ W M m to* M W W •• «■ W M -to W ** • ** ■* *" *•»*«■* *W W JUDGMENT j ———————————— — — — — — ————— ————————— —— — ———————————— . j Gardner J. S. delivered the judgment of the court. J ! In this case it was not sufficient in the court below for the learned trial judge to say that, because the contract was illegal, no order would be made by the court. The application for leave to issue a writ of possession should have been either granted or refused and.dlsmlssed^^ > i position of the property as a result of the illegali ty,-, of the performance of It is obvious that in this case the parties require to know the the contract of sale. For the avoidance of unnecessary litigation in the rW: ■ future the parties should agree what are the terms of dispute between them and apply to the court below, to whom we are sending back :;thls case, to resolve the issues and make an appropriate order. : ■ 1 ' ■ ■■ We suggest that the issues to be resolved are whether the contract ’ of sale is still in existence apart from the illegal agreement as to the performance, if so, whether specific performance namely, to sign a deed of assignment can be ordered, and if so, on what terms, if any. The appeal is allowed. The case is sent back for retrial by another judge of the High