Elias Tembo v Greatwall Financial Services Limited (2019/HP/ 1709) [2023] ZMHC 37 (21 April 2023)

IN THE HIGH COURT OF ZAMBIA 2019/ #IP/ 1709 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ELIASTEMBO PLAINTIFF AND GREATWALL FINANCIAL SERVICES LIMITED DEFENDANT Coram: Chigali Mikalile, J. on the 21 stday of April, 2023 For the Plaintiff' Mr. E. Chibeluka, Messrs Chibeluka & Partners For the Defendant: Mr. G. Hakainsi, Messrs L. M Chambers Casesref erred to: 1. G. F Construction (1976)Limited V Rud.nap (Zambia)Limited and Another, SCZ Judgment No. 18 of 1999 2. Holmes Limited v. Buildwell Construction Company Limited(l973) Z. R. 97. 3. Printing and Numerical Registering Companyv Simpson(l875) LR 19 Ex.462 4. Colgate Palmolive Zambia Inc v. Chuka & Others, SCZ Appeal No. 181 (2005) 5. African Banking Corporation Zambia Limited (T / A Bank ABC} v. Plinth Technical Works Limited & Others, SCZ 8/ 128/2015 6. Kalusha Bwalya v. Chadore Properties& Ian Chamunora Nyalugwe Haruperi (2015) vol 2 ZRl00 7. Bwalya Chishimba Karnbwili v. Greatwall Financial Services Limited, Appeal/028/2021 8. Communications Authority v. Vodacom Zambia Limited {2009) ZR 196 9. Mwcnya & Randee v. Kapinga (1998) ZR 17 10. Wesley Mulungunshi v. Catherine Bwale Mizi Chomba (2004) ZR 96, Legislation referred to: The Lands and Deeds Registry Act Chapter 185 Works referred to: 1. Halsbury's Laws of England, 4 th Edition, Volume 36 2. McGregor on Damages, 16thEdition:, London: Sweet & Maxwell The delay in the delivery of this judgment is deeply regretted. This was due to pressure of work. Introduction 1. The dispute herein emanates from an agreement entered into by the plaintiff and defendant. The plaintiff asserts that he borrowed $ 26,000.00 from the defendant, a money lending company. He has since paid back the loan in full, having paid a total of $ 37,160.00. Despite this, the defendant refuses to remove the caveat on the collateral property known as Stand No. 1546, Mufulira. J 2 2. The defendant, on the other hand, asserts that the transaction entered into was not a loan agreement but a sale agreement with an option to buy back the property. The plaintiff failed to buy back the property within the time agreed upon and still owes the sum of$ 18,858.51 hence the refusal to remove the caveat. Pleadings 3. This matter wascommenced on 29th October, 2019 by way of Originating Summons for removal of a caveat. However, the parties executed a consent order filed on 30th November, 2020 whereby they agreed that the matter continues as if begun by Writ. Thus, on 16th December, 2020, the plaintiff filed a Writ of Summons accompanied by a Statement of Claim. 4. The plaintiffseeks the following reliefs: i. An order that the plaintiff is not indebted to the defendant ii. An order that the agreement between the plaintiff and the defendant was a Credit Facility which was secured by property known as Stand No. 1564, Mufulira m. An order for removal of the caveat placed on the property known as Stand No.1564, Mufelira by the defendant. w. An order directing the defendant to surrender the title deed relating to Stand No.1564, Mufulira to the plaintiff v. In the alternative, payment of the sum of United States Dollars US$ 37,260. 00 which the plaintiff has paid towards the loan facility. vz. Damages for inconvenience suffered by the plaintiff vzz. Costs and any other relief the Court may deem fit in the interest of justice. J 3 5. The Statement of Claim reveals that sometime in 2018, Trills Zambia Limited, the company in which the plaintiff is a Director and shareholder, was in need of startup capital. Consequently, the plaintiff approached the defendant for a loan amounting to US$26,000. 6. The defendant's representative informed the plaintiff that the defendant's policy was that it did not execute loan agreements but executes contracts of sale of the pledged property and that the interest payable on the loan facility must be paid upfront by deducting it from the loan amount. 7. The plaintiff was assured that executing a contract of sale was just a formality and the defendant's standard. As such, the plaintiff went ahead to execute the contract of sale at the defendant's premises in Ndola for the sum of$ 26,000.00. The plaintiff also executed the deed of assignment. 8. The plaintiff was given the sum of US$ 12,916.69 cash from the sum of US$26,000 that he applied for and sum of US$1,300 was deducted upfront as security deposit. A further sum of US$9 ,360 was deducted as interest and the sum of US$ 2, 423.38 was paid to Entrepreneurs Financial Centre(EFC) Zambia by way of paying off the plaintiffs loan. 9. Theplaintiff disclosed that he paid a total sum of US$ 37,260.00 to the defendant towards the loan facility as follows: J4 .. 1. US$ 9,360 interest upfront upon obtaining the loan facility 2. US$1,300, security deposit upon obtaining loan facility 3. US$14,500 on 5 th February, 2019 4. US$12,000 on 6thMay,2019 10. It was further averred that the defendant has been using contracts of sale and deeds of assignment contrary to the law on how financial institutions should operate. According to the plaintiff, this practice is exploitative. 11. Despite having paid the principal together with interest to the defendant on the advanced amount of US$26,000.00, the defendant has refused or neglected to remove the caveat on the plaintiffs property. As a result of the forgoing matters, the plaintiff has suffered great inconvenience, damage and loss. 12. The defendant filed its Defence and Counterclaim on 28th January, 2021. It was averred that the defendant also buys properties from willing sellers and from persons who agree to enter into a contract of sale in the event that the proposed collateral does not meet the threshold for a loan according to the defendant's conditions. 13. The assertion that it was defendant's policy not to execute loan agreements was denied. It was stated that where a person qualifies for a loan, the parties enter into a loan agreement and J 5 where a person does not qualify but opts to sell their property, the parties enter into a contract of sale. 14. The plaintiff entered into an outright contract of sale of the property in issue with a provision to buy back the property. In addition, the plaintiff signed adeed of assignment and other necessary sale documents to authorize the change of ownership in the event that he failed to buy back the property from the defendant within the agreed contract period. 15. The defendant denied having made any deductions from the purchase price apart from a sum of US$2,423.38 paid directly toEFC to pay off the plaintiff's loan which was outstanding at the time. Theplaintiff even acknowledged receipt of the full purchase price. 16. The defendant denied rece1v1ng US$ 9,360.00 and US$ 1,300.00 from the plaintiff. The def~ndant, however, admitted receiving the US$14,500.00 and US$ 12,000.00from the plaintiff. The $ 14,500.00 was paidby the plaintiff on 20th February, 2019 upon demand of a sum of US$12,870.00 for extension charges given as condition precedent to buy back the property beyond the agreedtime frame of up to 11th October, 2018. Therefore, the plaintiff only paid US$1,630.00 towards the purchase price to buy back the property from the defendant leaving a balance of US$24,370.00 which again rose to US$30,858.51 owing to extension occupational charges, costs and profits. J 6 17. The plaintiff paid the US$12,000.00 on 6 th May, 2019, leaving a balance of US$18,858.51 towards the purchase price to buy back the property from the defendant. Thus, it is not trne that he paid back in full hence the refusal by the defendant to remove the caveat. 18. According to the defendant, it has always carried out its business operations in complete adherence and compliancewith the laws of Zambia. 19. In the counterclaim, the defendant stated that the plaintiff cannot have both the money and the property to himself as such action amounts to breach of contract and unjust enrichment. 20. The defendant therefore counterclaims for: i. An order for specific performance of the contract of sale zz. Alternatively, an order directing the plaintiff to pay the outstanding sum of US$ 18,818.51 iii. Payment of occupational fees in the sum of US$ 5,500 iv. Damages for inconvenience v. Interest on any amounts found due vi. Costs against the plaintiff vii. Any other relief the court may deem fit. 21. The plaintiff filed a Reply and Defence to the Counterclaim on 4 th February, 2021. The plaintiff disputed the contents of the counterclaim. He reiterated that he entered into a money lending agreement and signed the contract of sale under the mistaken J7 belief that it was a money lending agreement secured by his property with the option of redeeming his propertyas per defendant's practice. He also emphasised that he paid back the borrowed money and therefore entitled to have his property back. 22. It was further averred that defendant has not suffered any loss and damages as the plaintiff has paid the total sum borrowed. Consequently, the defendant is not entitled to any of the reliefs it is seeking in its counterclaim. 23. In its reply to defence to counterclaim, the defendant essentially repeated itsdefence. Trial Course 24. The plaintiff testified on his own behalf and called two other witnesses. The defendant called only one witness. 25. The plaintiff, Elias Tembo, was PWL His witness statement reveals that he in the company of Moses Bweupe and Justine Chishimba, approached the defendant at its Ndola office with a view to borrow money on behalf of Trills Zambia Limited. They were advised · by defendant's employee or agent that the defendant only gives collateral based loans and that since the company was a startup company with no assets, the defendant could not lend it money. However, thedefendant was willing to lend money to PW 1 as he had property in Mufulira. J 8 26. According to PWl, he was initially skeptical with the procedure of executing a contract of sale. However, the defendant's employees or agents namely Bester Chibwe and Mr. Thang assured him that there was nothing strange about the defendant's policy of executing a contract of sale instead of a loan agreement. 27. It was agreed that the defendant would lend the plaintiff a total sum of US$26,000.00 less interest of US$9,360 at 36%, 5% security deposit of US$1,300.00 and K 24,355.00 mortgage paid to EFC on the plaintiffs behalf. PWlreferred to page 19 of his bundle of documents and testified that the document was drawn by the defendant's employee. It shows how the $ 26,000 was disbursed. 28. Upon being satisfied that the transaction with the defendant was a pure money lending agreement in which interest was to be paid in advance, PW 1 proceeded to sign the documents at pages 1 to 11 of his bundle which are the contract of sale, acknowledgment of receipt of $ 26,000.00 and the deed of assignment. PWl emphasised that he only received the sum of US$12,916.69 cash after the aforementioned deductions. 29. PWl further testified that he went on to pay the sum of US$14,500.00 towards the loan facility on 6 th February, 2019 plus the sum of US$12,000.00 on 6 th May, 2019. He referred court to the documents at pages 12 and 15 of his bundle of documents. It was PWl 's position that he paid the defendant a J 9 total of US$37, 160.00 under the loan facility which sum includes the upfront payments totaling$ 10,660.00. 30. Despite paying the defendant the sum of US$ 37,160.00, the defendant has refused to discharge the caveat it placed on the plaintiff's property. 31. In response to the defendant's counterclaim, PWl testified that the defendant disguised the loan agreement as a contract of sale of the agreement. PWlinsisted that the agreement between the parties was a money lending agreement which was secured by his property with an option to redeem the property upon paying the loan amount. · Clause 6 of the special conditions clearly speaks to redemption of the property and not buying back the property whereas the receipt ay page 7 of the plaintiff's bundle speaks about refunding the sum of US$26,000.00 and not buying back the property. 32. In light of the forgoing,PWl asserts that what existed between the parties was a money lending agreement and the defendant is not entitled to any of the reliefs it is claiming. 33. In cross-examination, PWl maintained that the interest on the loanwas charged upfront as indicated on page 19 of his bundle of documents. PWl denied the assertion that someone else could have authored the said document. He said his witnesses saw him obtaining the document from the defendant. J 10 34. PWl denied the assertion that all documents on the record refer to a sale because he had proof that the transaction was a loan agreement. However, when referred to page 14 of the defendant's bundle of documents, PWl admitted that he was asking to buy back the property. He said he made the application on 20th February, 2019. Hedenied the assertion that the payment of $ 12,000.00 was after the application for extension of time within which to buy back property. 35. In continued cross examination, PWl refused to confirm that US$26,000.00 was the purchase price. He said he never received that amount despite signing the document stating so. 36. When referred to the consent to assign and the deed of assignment, PW 1 stated that he understood the nature of these documents. He, however, disputed that the deed of assignment transfers ownership. 37. In re-examination1 PWl clarified that he did not consent to the assignment. He testified that he did not pay the extension charges because he thought he was making the last payment. He clarified that he only came to learn of the extension charges when he asked for his title. 38. PW2 was Moses Bweupe, a director and shareholder in Trills Zambia Limited, whosetestimony was that the defendant could J 11 .,. not give the company a loan as it did not have property to pledge as collateral. 39. PW2 testified that the plaintiff was told that as a property owner, he could borrow US$ 26,000.00 and that interest and security deposit were to be paid upfront from the $ 26,000.00. Thetabulations were written on a piece of paper which is at page 19 of the plaintiffs bundle of documents. 40. PW2 further testified that when the plaintiff asked for the loan agreement, he_ was told in the presence of PW2 that according to the defendant's policy, customers were required to sign a contract of sale agreement and not a loan agreement. This did not sit well with the plaintiff but he was assured that it was just a formality and there was no need for him to worry. The plaintiff then signed the contract of sale which PW2 witnessed on the plaintiffs behalf. Theplaintiff was then given the sum of US$ 12,916.69. The sums of . US$1,300.00 US$ 9,360.00 and US$2,423.38 were deducted upfront as security deposit, interest and loan repayment to EFC respectively. 41. According to PW2, Trills Zambia paid the sum of US$14,500 and US$ 12,000.00 on 6 th February, 2019 and 6 th May, 2019 respectively on behalf of the plaintiff. 42. In cross-examination, PW2 was referred to pages 14 and 15 of the defendant's bundle of documents and confirmed that those documents were for extension of time within which to buy back J 12 the property which was to be bought back by 20th February, 2019. PW2 confirmed that the plaintiff undertook to pay a sum of US$ 12,870.00 as extension charges. He conceded that the property had not been fully paid for as at that date. 43. In further cross-examination PW2 acknowledged that he did not have any document to show that the agreement was not a contract of sale. · 44. As regards the tabulation at page 19 of the plaintiff's bundle, PW2 insisted that it was written by Mr. Chibwe of the defendant company though there is no name. 45. In re-examination, PW3 maintained that the calculations relating to the loan were done by the defendant. 46. PW3 was Justin Chishimba whose evidence was essentially the same as that of PW2 and for that reason will not be repeated, suffice to state that PW3 disclosed that he was also a witness to the signing of the documents in issue. He also stated that he was present when the defendant paid the plaintiff the sum of US$12,916.00 cash on the loan of US$ 26,000.00 after deductions. 4 7. Undercross-examination, PW3 reiterated that he was present during the transaction. He however, disputed the averment that all the documents- signed were for a sale agreement as opposed to money lending. J 13 .. 48. The lone defence witness {DW) was Feng Shenghu, the defendant's Business Manager. It was his evidence that on 12th June, 2018, the parties herein entered into a contract of sale of the plaintiff's property being stand 1564 on certificate of title No 1003128 Mufulira for the sum of US$26,000.00. 49. The contract of sale gave the plaintiff the option to buy back the property by paying the same purchase price of US$26 ,000 on or before 11th October, 2018. In addition to the contract of sale, the plaintiff also obtained consent to assign and executed a deed of assignment for the transfer of ownership. 50. According to the witness, on 20th February, 2019, the plaintiff paid the sum of US$14,500.00 upon the defendant's demand of extension charges of US$ 12,870.00since the plaintiff had exceeded the agreed period. Therefore, the plaintiff only paid back US$ 1,630.00 towards the purchase price leaving a balance of US$ 24,370 which again rose to US$ 30,858.51 owing to extension charges; costs and profits. 51. On 6 th May, 2019, the plaintiff paid a sum of US$12,000.00 leaving a balance of US$ 18,858.51. According to DW, the plaintiff failed to buy back the property within the agreed period. In addition, by the time the matter was commenced, the plaintiff had not fully paid the purchase price to the defendant in order for him to buy back the property. Thus he is not entitled to the reliefs J 14 claimed. The plaintiff was paid the money which he used as he pleased and he never complained about the transaction until he failed to meet the deadline to buy back the property. 52. According to DW, the defendant is entitled to an order of specific performance of the contract of sale and mesne profits of not less than US$5,500.00 from the date of lapse of the payback period in the absence of full payment of US$26,000.00. 53. In the alternative, the defendant claims for an .order that the plaintiff pays back the USD$18,858,51 in full together with monetary loss at 15% of the con tract price the defendant suffered by being kept out of the money. 54. DW prayed that the Court grants the reliefs sought by the defendant including interest and costs of this action. 55. Undercross-examination, DW confirmed that the defendant paid the plaintiff's loan with EFC and that there was interest of 9% per month which translated to US$ 9,360 and security deposit of US$1, 300. 56. When referred to the defendant's bundle of documents, DW stated that the consent to assign was granted on 13th June, 2018, a day after signing the contract. He also stated that he did not know the lawyer who applied for the consent on behalf of the plaintiff as the document was received from the plaintiff. J 15 57. On the contract of sale, DW admitted that there was no mention of the plaintiffs lawyers in the special conditions nor was it mentioned who was to pay property transfer tax. DW was then referred to clause 6 of the contract of sale and he admitted that China Hua Shun Group of companies referred to in that clause was not party to these proceedings. It was also acknowledged that clause 6 makes reference to redeeming and not buying back the property. 58. In further cross examination, DWI denied the assertion that the defendant deducted the interest upfront. He however confirmed that the plaintiff left the Certificate of Title in the custody of the defendant and maintained that the defendant had a claim against the plaintiff for the sum of US$ 18,858.51. He acknowledged that he did not make reference to any documents which disclose how he arrived at this amount as balance. 59. In re-examination, DW testified that he checked the contract with the plaintiff and all the documents. Analysis and decision 60. I have carefully considered the pleadings and all the evidence in this case. I must mention that parties did not file written submissions despite undertaking to do so. J 16 61. It is not in dispute that the plaintiff anddefendant entered into an agreement involving the plaintiffs property known as Stand No. 1564 Mufulira wherein the plaintiff received a sum of money from the defendant. What is in dispute is the nature of the agreement. 62. The plaintiff asserts that the parties entered into a money lending agreement and he has since paid back the borrowed money. There is, therefore, no need for the defendant to maintain the caveat entered on the property. 63. The defendant contends that the plaintiff sold the property to the defendant. He had an option to buy back the property by a determined date but failed to do so. 64. I am, therefore, of the considered viewthat the issue that ought to be resolved first and foremost is the nature of the agreement between the parties. Thereafter, the individual claims by the plaintiff shall be dealt with as well as the defendant's counterclaim. 65. It is established at law that he who alleges must prove. The claimant bears the burden to prove his claims on a balance of preponderance. 66. I will now deal with the issue raised. Nature of the agreement 67. By his pleadings and testimony, the plaintiff's contention is that the transaction was merely a loan transaction. He was, however, compelled to sign a contract of sale which he believed was in line with the defendant's policy. The defendant on the other hand argued that the plaintiff entered into an outright contract of sale of stand 1564 Mufulira with a provision to buy back the property. 68. I will now consider the documents signed by the parties, in order to discover the real intention of the parties. 69. The first document that the plaintiff signed was a contract of sale which reads as follows: An agreement made the 12th day of June Two Thousand and Eighteen between ELIAS TEMBO of Mufulira in the Copperbelt province of the Republic of Zambia (hereinafter called the "Vendor») of the one part and GREAT WALL FINANCIAL SERVICES LIMITED a company incorporated in the Republic of Zambia and having its registered office situate in Ndola(hereinafter called the Purchaser") of the other part. WHEREBY IT JS AGREED that the Vendor will sell and the Purchaser will purchase the property referred to in the accompanying particulars at the price of 26, 00 VSD( twenty six thousand US dollars only) upon .the accompanying tenns and condition and the Vendor and the Purchaser do on their respective part agree to complete the. said Purchase on the said terms and conditions. J 18 70. The parties also signed a deed of assignment which reads in paragraph 4 and 5 as follows: AND WHEREAS the Vendor as beneficial owner has agreed with the Purchaser for the sale to the purchaser of the said property subject as aforesaid but otherwise free fromencumbrances at the purchase price of $26, 000(Twenty Six Thousand US Dolla1·s only) And WHEREAS all necessary consents for this transaction have been duly obtained. 71. The operative part of the deed of assignment reads as follows: In pursuance of the said agreement and in consideration of the sum of 26, 000USD (TWENTY SIX THOUSAND US dollars only) paid to the Vendor by the Purchaser {receipt whereof the Vendor . hereby acknowledges) the Vendor as beneficial owner HEREBY ASSIGNS unto the Purchase ALL AND SINGULAR the piece of land comprised in and demised by the lease together with all buildings erected thereon TO HOLD the same unto the Purchaser for the residue of the term of years created by the Lease SUBJECT to the payment of the rent and to the covenants on the part of the Lessee and the conditions and stipulations in the Lease reserved and contained and henceforth on the part of the Lessee to be paid perfonned and observed. 72. As can be seen from the foregoing, the documents signed by the parties do not speak of a loan transaction. J 19 73. In the case ofG. F Construction (1976)Limited v. Rudnap (Zambia)Limited and Unitechna Limited1it was stated as follows: We take judicial notice of the fact that a contract of sale of land does not per se transfer ownership of land to the buyer. Much more is required. There must be a deed of assignment executed by the parties which must be lodged with the Registrar of lands together with necessary consents or licenses. 74. The extracts of the documents signed by the partiesclearly show that the plaintiff agreed to sale his property to the defendant at the price of US$ 26,000.00. The plaintiff signed a clear contract of sale which demonstrates his intention to sell the property to the defendant. There is no evidence on record that thedocuments executed are meant to facilitate the obtaining of a loan. The deed of assignment signed by theplaintiff facilitated a transfer of ownership of land in line with the requirements of a transfer as elaborated by the Supreme Court in the G . F Construction case cited above, 75. In the case of Holmes Limited v. Buildwell Construction Company Limited2it was held thatwhere parties have embodied their terms in a contract, extrinsic evidence is usually not admissible to add vary, subtract from or contradict the terms of the written contract. J 20 76. The contract of sale and deed of assignment are clear and need no interpretation. The parties herein freely set and agreed to the terms of the agreement and freely signed the contract. There is no evidence of duress, undue influence or mistake. My role as court is to give effect to what the parties have agreed upon. 77. I am fortified by the learned authors of the Law of Contract, 13th edition, Butterworths ( 1996) at page 29 who state: Behind all forms of contract, no doubt, lies the basic idea of assent. A contracting party, unlike a tortfeasor is bound because he has agreed to be bound. Agreement, however, is not a mental state but an act, and as an act, is a matter of inference from conduct. The parties are to be judged not by what is in their minds, but by what they have said or written or done. 78. There is no evidence on record to support the assertion that the parties signed a loan agreement. As stated earlier, what is on record is a contract and this contract describes the parties as vendor and purchaser. Clearly, the transaction conveys legal estate or interest in the property to the defendant. Contrary to the plaintiffs assertions, there is nothing illegal about the agreement entered into be the parties. J 21 79. Having been satisfied that the contract of sale of 12th June, 2018 was freely entered into, I am bound to enforce it .. I am guided by the case of Printing and Numerical Registering Company v. Simpson3 quoted in the case of Colgate Palmolive (Z) Inc v. Able Shemu Chuka and 110 Others4 at page 8 which states as follows: If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by Courts of justice. 80. In another case of African Banking Corporation Zambia Limited (T/A Bank ABC) v. Plinth Technical Works Limited and 5 Others5 , a case which dealt with a mortgage deed, the Supreme Court stated that indeed, it is axiomatic -that the sanctity of contact must be preserved and agreements which are freely and voluntary entered into by the parties must be enforced by the courts of law. 81. Further, in the case of Katusha Bwalya v. Chadore Properties Limited & Another6 , a matter which dealt with anissue similar to the one in casu, the Supreme Court had this to say: The intention of the parties was discemable from the documents signed by them freely and voluntarily. The parties chose to embody their agreement in two documents, namely the contract of sale and the deed of assignment. Theywere bound by these documents. Extrinsic J 22 evidence was generally not admissible to vary the terms of the written contract. The documents were categorical and clear and did not call for extrinsic evidence to make sense of them. 82. The foregoing cases demonstrate that a party is bound by an agreement which he freely and voluntarily enters into even if he has not read its contents nor understood them. It is, however, apparent from the evidence on record that the plaintiff understood the nature of the documents before him and freely signed them. This can be construed from his own testimony that he initially hesitated to sign. Clearly, he understood the implications of a sale agreement. 83. The plaintiff did, in re-examination, attempt to raise the issue of not consenting to the assignment of the property and stated that he had seen the consent to assign for the first time in court. However, the issue was not pleaded and no evidence was led on it. 84. Halsbury's Laws of England volume 36 paragraph 36 states: "'Where a party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence by another party, he must supply the necessary particulars of the allegation in the pleadings." 85. From the record, it is clear that the defenda nt from the onset informed the plaintiffas to what it could do to h elp the plaintiff raise the money his company was seeking, that is to say, J 23 .. enter into a contract of sale. There is no evidence that the defendant altered its position on the nature of the documents to be signed. I, therefore, find that there is no evidence on record to support the assertion that the plaintiff believed that he was signing a document of a different nature. 86. In a recent decision (December, 2022) of Bwalya Chishimba Kambwili v. Greatwall Financial Services Limited7 the Court of Appeal was faced with a similar case and had this to say: We therefore, agree with the learned trial Judge's view that the discussions between the parties before the contract was executed were not useful in proving the parties' true intentions in their written contract. The intentions of the parties in any written contract can only be construed from the document itself or a collection of documents forming part of the contract if any. In this case, it is very clear from our reading of the contract that the parties' intention was for the appellant to sell and the respondent to purchase sub division G27 .. . The only unique feature of this contract of sale is that it contains a buy back provision which gave the appellant an opportunity to regain ownership and possession of the property if he refunded the purchase price before 30thJuly, 2018. The buy-back provision in the contract does not, in our view, imply that the parties entered into a loan agreement secured by a mortgage. We instead take the view that the respondent availed a window to the appellant to have back the property if he so desired upon a refund of the purchase price. J 24 87. The scenario above is exactly what has been established by the evidence in the case at hand. Quite clearly, the plaintiff has failed to prove that the transaction he entered into was anything other than a contract of sale of his property. 88. I shall now deal with the plaintiffs claims. (a)Whether the plaintiff is still indebted to the defendant. 89. I have already made a finding that the transaction between the parties was a sale agreem~nt and not a loan transaction. The purchase price was $ 26,000.00. Further, the contract of sale gives the plaintiff the liberty to buy back the property within a stipulated period. 90. Special condition 6 states that the vendor shall transfer the property but the purchaser grants the vendor an option to redeem the property before 11th October, 2018. The special condition further states that if the vendor pays the total sum of $ 26,000 to the purchaser before 11 th October, 2018, t4e purchaser shall ensure transfer or hand back the certificate of title and relevant documents to the vendor. The condition goes on to accord chance to the vendor to extend the period for redeeming the property provided he pays the extension occupying charge and cost of profit. It further provides that failure to pay entitles the purchaser to dispose of the property. J 25 91. The evidence on record has established that the plaintiff did apply to extend the time to redeem the property. The plaintiff made the application on 20th February, 2019. The document reads in part as follows: I TEMBO ELIAS, of NRC 407028/ 52/ 1 have the plan to buy back the property, hereby apply for exceeding the period of 12th October, 2018 to the 2Qth day of Febrnary, 2019 in the total of 132 days from GREAT WALL FINANCIAL SERVICES LIMITED. I agree to pay the exceeding occupying charge $2,574 and the default exceeding charge of $10,296 for the exceeding period, in total the sum of $12,870. I know this is the last chance given by the purchaser. I will raise the money to buy back the property before the 20th day of FEBRUARY 2019. If I cannot pay the agreed contract amount to the purchaser before 20th day of FEBRUARY, 2019, the contract will be executed. I will not regret and I will cooperate with changing the ownership of the property. 92. This document shows that the plaintiff agreed to pay the additional amount of $12,870.00. Thus, he was supposed to pay a total of$ 38,870.00 ( $ 26,000 + $ 12,870) in buying back the property. It is important to point out here that there is no evidence to suggest that the plaintiff did not sign this document freely and voluntarily. 93. It is common cause that the plaintiff made two payments by way of bank transfer of$ 14,500.00 on 6 th February, 2019 and$ 12,000.00 on 6 th May, 2019. This means he paid a total of $ J 26 26,500.00 in his endeavor to buy back the property. This entails that there was an outstanding balance of$ 12,370.00. 94. I am, therefore, disinclined to make an order that the plaintiff is not indebted to the defendant as this is not supported by the evidence on record. {b)Removal of caveat. 95. Section 76 of the Lands and Deeds Registry Act provides for persons entitled to place a caveat on property. It states that: Anyperson- (a) claiming to be entitled to or to be beneficially interested in any land or any estate or interest therein by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or (b) transferring any estate or interest in land to any other person to be held in trust; or (c) being an intending purchaser or mortgagee of any land; may at any time lodge with the Registrar a caveat in Form 8 in the Schedule. 96. On removal of a caveat, section 81 provides that: (1) Such Registered Proprietor or other interested person may, if he thinks fit, summon the caveator, or the person on whose behalf such caveat has been lodged, to attend before the Lands Tribunal, Court or Judge thereof to show cause why such caveat should not be removed. J 27 (2) Such Lands Tribunal, Court or Judge, upon proof that such person has been summoned, may make such order in the premises, either ex parte or othenuise, as to such Lands Tribunal, Court or Judge seems meet. 97. The foregoing provision grants this Court power to remove a caveat in the event that the caveator fails to show cause why the caveat should be sustained. 98. As already alluded to, the parties herein are bound by the documents that they signed in the transaction. Furthermore, the evidence has established that the plaintiff did make attempts to buy back the property by making payments totaling$ 26,500.00. However, the attempts were made outside the time frame provided for by the contract to buy the property. 99. In furtherance of the agreement, the plaintiff executed another document which gave him more time to buy back but with additional charges which he agreed to. This raised the sum payable to $ 38 870. Thus, if the option to buy back were still available to the plaintiff, he wouldstill beunder an obligation to pay the sum of$$ 12,370.00. 100. Clearly, therefore, the defendant has an interest in the land. The claim that the caveat should be removed mustnecessarily fail. J 28 • .. Whether the defendant ought to surrender the title deed 101. For the reason of failure of the claim for an order for removal of caveat, I find that this claim cannot be sustained. This claim could have beentenable had it been proved that the plaintiff had paid the full purchase price which included additional charges for delayed payment. There is on record a letter dated 17th November, 2020 in which the defendant gave the plaintiff 7 days' notice to buy back the property failing which the option would be deemed waived. 102. Having failed to pay in accordance with the agreement, this Court has no basis upon which it can order the defendant to surrender the title deed. Again, theplaintiff agreed to sell freely and voluntarily and was not able to buy back. (c) Recovery of the sum of US$ 37,260.00 103. Theplaintiff prayed in the alternative that the defendant be ordered to pay $ 37,260 which he claims to have paid to the defendant. 104. The evidence on record indicates that the plaintiff was paid US$26,000.00 in the sale. The defendant argued that the only deduction that was made from the$ 26,000.00 was OS$2,423.38 which was paid to EFC on behalf of the plaintiff to clear his indebtedness. It is trite that he who alleges must prove. J 29 ... 105. The plaintiff and his witnesses insisted that the plaintiff received less than $ 26,000 and referred to a handwritten document showing deductions pertaining to interest, security deposit and mortgage. The defendant distanced itself from this document and I have no reason to find otherwise. The document is devoid of the name of its author and there is absolutely nothing to show that it was authored by the defendant's agent or employee. 106. Furthermore, the receipt signed by the plaintiff shows that he indeed received the sum of$ 26,000.00. It reads as follows: According to the contract of sale which is signed on 12th Day of June, 2018, hereby,! ELIAS TEMBO have received 26,000 USD(TWENTY SIX THOUSAND us dollar only from Great Wall Financial Services Limited. According to Bank of China on 11 th June 2018. the exchange rate is USD ZMW 10.0S(USD) exchange to ZMW 26.30. I will refund USD 26.000.00 before the agreed date fhe 11 th day of October, 2018 to Great Wall Financial Services Limited. 107. This document clearly does not support the plaintiff's verbal representations regarding interest and security deposit and theserepresentations are accordingly dismissed. The only money that the plaintiff would be entitled to 1 if any, is the money paid in his effort to buy back the property. This will be discussed further later in the judgment. (d} Damages for inconvenience suffered J 30 • .... 108. According to McGregor on Damages2 at page 7, before damages can be recovered in an action, there must be a wrong committed, whether the wrong be a tort or a breach of contract. 109. As the evidence has shown, the plaintiff did not manage to buy back the suit property. If he hassuffered any inconvenience, he has himself to blame. Had he exercised the option to buy back the property in accordance with the agreement, this matter would not be where it is. The evidence has not revealed any vvrong doing by the defendant which may have resulted in the plaintiff's suffering. The plaintiff is, therefore, not entitled to recover damages. The counterclaim 110. The defendant has made 4 claims. These are: an order for specific performance of the contract of sale; alternatively, an order directing the plaintiff to pay the outstanding sum of US$ 18,818.51; payment of occupational fees in the sum of US$ 5,500.00; and damages for inconvenience. (a) S pecific performance 111. Having determined that the plaintiff sold the suit property to the defendant and failed to successfully buy it back, I ask myself if the equitable remedy of specific performance is available to the defendant. J 31 • 112. Specific performance, simply put, 1s an order of the Court constituting an express instruction to a party to a contract to perform his obligations as undertaken in the contract. The general rule as espoused in a plethora of decisions is that a Court will not order specific performanceif the claimant can obtain sufficient remedy for damages. 113. In the case of Communications Authority v. Vodacom Zambia Limited8 the Supreme Court held that: The remedy of specific performance is an equitable remedy which is available in certain cases to the aggrieved party to a contract. It is founded upon the fact that the normal common law remedy for breach of a contract- damages- is not in all cases an adequate remedy. 114. With respect to contracts relating to land, it is well established that where there is a dispute, damages would not suffice to atone for any injury the claimant may suffer. Thus in the case of Mwenya & Randee v. Kapinga9 it was held that: "The law takes the view that damages cannot adequately compensate a party for breach of the contract for the sale of an interest in a particular piece of land or of a particular house, however ordinary". 115. In the case of Mulungunshi v. Chomba 10 , the Supreme Court held thatthe appellant and respondent, by their conduct or deed intended to be bound by a contract of sale in which the respondent offered and the appellant accepted to buy the house. J 32 • .. 116. In the case at hand, the plaintiff undertook to sale the suit property to the defendant. I am of the view, as was held in theMulungushi case, that both parties intended to be bound by the contract of sale they signed. The defendant performed its obligation through payment of the purchase price of US $26,000 to the plaintiff. 117. In view of the foregoing authorities, I find that this is a proper case in which the order of specific performance of the contract of sale ought to be granted. (b)Payment of the sum of$ 18,818.51 118. This is an alternative claim. However, the defendant's evidence has not established how that sum was arrived at. The evidence on record establishes that out of the total sum of$ 38, 870.00, the plaintiff paid the defendant $ 26,500.00 leaving a balance of only $ 12,370.00. This is, therefore, what ought to be paid by the plaintiff in the alternative . . 119. However, I will not make this alternative order for the reason that this transaction has been in abeyance for a long time now. The plaintiff should have bought back the property in accordance with the contract as far back as October, 2018 or May, 2019 following the extension granted but, to date, has failed to pay the total sum agreed upon (extension charges inclusive). Thus the option to repurchase was waived. J 33 .. 120. Having made the above finding, I am of the view that the just course would be to order the defendant to pay back the money paid by the plaintiff ( $ 26,500) in aneffort to recover the property. To let the defendantobtain ownership of the suit property as well as to keep the $ 26,500 paid by the plaintiff would amount to unjust enrichment. (c)Payment of occupational fees in the sum of $ 5,500.00 121. The defendant did not lead any evidence on how the sum of $ 5,500 was arrived at. I am therefore disinclined to grant this order. {d)Damages for inconvenience 122. Indeed as earlier stated, damages are recoverable where a wrong has been committed. It has been established that the plaintiff sold his property which means he ought to have yielded vacant possession to the defendant, the owner of the property. The plaintiff has failed to do so. I, therefore, have no qualms .in holding that the defendant has suffered inconvenience. The sale should have been concluded over 4years ago. 123. As such, I order damages against the plaintiffto be assessed by the Leaned Registrar. J 34 .. Final orders 124. The plaintiff's claims fail except the claim for recovery of money which has only partially succeeded. The defendant's claims for specific performance and damages for inconvenience succeed. The other claims have failed. 125. For the avoidance of doubt, I make the following orders: {i) The defendant is granted the order for specific performance of the contract of sale. (ii} The defendant 1s granted an order of damages for inconvenience. The damages are to be assessed by the Registrar. (iii) The plaintiff shall recover from the defendant the sum of $ 26,500.00 less damages that will be found due in (ii). (iv) Costs shall be for the defendant to be taxed 1n default of agreement. Leave to appeal is granted Dated this 21 s t day of April, 2023 ~ - M. Chigali Mikalile HIGHCOURT JUDGE J 35