Kanoso v Dasu and Anor (Appeal 86 of 2003) [2005] ZMSC 22 (22 November 2005)

HE SUPREME COURT OF ZAMBIA APPEAL NO.86/2003 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: FELIX MUTUMWA KONOSO (As Administrator Of the Estate of the late Dr. Kabeleka Konoso) APPELLANT AND YOUSUF DASU UNION BANK (Z) LTD (In Liquidation) iST respondent 2nd RESPONDENT CORAM: LEWANIKA, DCJ., MAMBILIMA, SILOMBA JJS On 4th August 2004 and 22nd November, 2005 For the Appellant: For the Respondent: F. S. KONGWA of Kongwa & Co. N. K. MUBONDA of D. A. Kemp & Co. JUDGMENT LEWANIKA, DCJ delivered the judgment of the court. AUTHORITIES REFERRED TO 1. 2. 3. 4. 5. 6. MCCALLUM VS COUNTY RESIDENCIES LTD 1963,1 WLR.657 EMERIS VS WOODWARD, 1889,43 CHD, 185 WATT VS ASSETS LIMITED, 1905 A. C. 317 LUSAKA WEST DEVELOPMENT COMPANY LIMITED AND B. S. K. CHITI & ZAMBIA STATE INSURANCE CORPORATION VS TURNKEY PROPERTIES LTD, 1990/91, ZR 1 BWANAUSI VS THE PEOPLE, 1976, Z. R. 103 NKHATA AND FOUR OTHERS VS THE ATTORNEY GENERAL, 1966, Z. R. 124 This is an appeal against the decision of a Judge of the High Court refusing to set aside a consent judgment entered into between the Appellant and the 1st Respondent dated 16th June, 1995 in Cause No. 1994/HP/1092. In this appeal we shall refer to the Appellant as the Plaintiff and the 1st Respondent as the 1st Defendant, which is what they were in the court below. The short history of this matter is that there were proceedings in Cause No. 1994/HP/1092 between the late Dr. DURTON KABELEKA KONOSO as 1st Plaintiff and the late SEKELI KONOSO as 2nd Plaintiff and SHIRAZ RASHID DASU as 1st Defendant and UNION BANK OF ZAMBIA LIMITED as 2nd Defendant relating to the sale of Stand number 4973 Lusaka. The 1st Plaintiff and the 1st Defendant entered into a consent judgment dated 16 June 1995, which settled and compromised these proceedings. The consent judgment appears on pages 30 to 34 of the record of appeal. Following the death of the 1st Plaintiff, the 2nd Plaintiff as administrator of the estate of the 1st Plaintiff instituted these proceedings seeking:- 1. an order setting aside the consent judgment dated 16 June, 1995 th made in Cause No. 1994/HP/1092 2. a declaration that the said consent judgment is a nullity, having been fraudulently and irregularly obtained and is therefore of no effect, on the grounds that the 2nd Plaintiff or his advocates gave no consent at all and the 1st Plaintiffs consent was obtained when his mental and physical powers and faculties were impaired by illness and behind the back of his advocates of record. The learned trial Judge found that on the evidence adduced before him there were no grounds upon which he could impeach the consent judgment, hence this appeal. Counsel for the Plaintiff has filed six grounds of appeal, namely; 1. That the learned trial Judge erred in fact and in law in holding that the late Dr. KONOSO ignored his advocates of record, Messrs Munyinda and Company when the evidence shows that at the time the 1st Respondent and the late Mr., MAKETO left Zambia for Zimbabwe, there was no other lawyer having conduct of Cause No. 1994/HP/1092 on behalf of the late Dr. KONOSO; 2. That the learned trial Judge erred in fact and in law in holding that, “there is no evidence whatsoever that his mental faculties were impaired by illness.” 3. That the learned trial judge erred in fact in holding that the proceeds of the sale of the property were used for Dr. KONOSO’S treatment when the evidence shows that the disbursement of funds was done after the death of Dr. Konoso to the daughter Bridget Konoso in disregard to the late Dr. KONOSO’s protestations that the said Bridget KONOSO and his son Pitso would have nothing to do with The transaction. The learned Judge therefore erred in not treating Bridget KONOSO as a witness with an interest of her own to serve and he should have treated her evidence with caution; 4. That the learned Judge erred in fact and in law in holding that the consent of the joint Plaintiff, Sekeli KONOSO, could be dispensed as his beneficial interest in the property could not be ascertainable; 5. That the learned Judge erred in holding that the mode of part payment of U. S. dollars 111,000.00 was in accordance with the consent judgment; 6. That the learned Judge erred in fact and in law in holding that there is no evidence of undue influence and duress. Arguing the first ground of appeal, Counsel said that at the hearing of this matter, both Plaintiffs in Cause No. 1994/HP/1092 were deceased and could therefore not speak for themselves. He said that, however, the late Dr. KONOSO’s position with regard to the property situate on Stand No. 4973 Lusaka and his relationship with members of his family, including his daughter D. W. 1 is reflected in his affidavit in support of the originating notice of motion appearing on pages 22 to 25 of the record. He said that the learned trial Judge did not sufficiently advert to the documentary evidence that was put before him and that he gave preponderant weight to the testimony of DW 1 whose testimony should have been treated with caution as the evidence shows that she was the main beneficiary of the purchase price contrary to the wishes of her late father which were expressed in paragraph 5 of the affidavit in support of the summons the contents of which must have been known to the 1st Defendant and his advocate. Counsel said that had the learned trial Judge evaluated the documentary evidence, including the affidavit evidence of Dr. KONOSO and his brother, he would have entertained serious doubt that Dr. KONOSO ignored his lawyer and engaged a Zimbabwean lawyer upon whose advice he freely and with full knowledge of the consequences consented to the consent judgment when he was assisted to affix his thumb print to the consent judgment five months before he died. He said that the finding by the learned trial Judge that the late Dr. KONOSO was adequately represented by a Zimbabwean lawyer when he affixed his thumb to the consent judgment is not supported by the evidence on record. He also said that there was no evidence on record to show that when the l8t Defendant and his advocate the late Mr. MAKETO traveled to Harare, leaving behind the joint Plaintiff Sekeli KONOSO and Mr. MUNYINDA, Dr. KONOSO’s advocate of record in Cause No. 1994/HP/1092, they were going at the invitation of either Dr. KONOSO or his alleged Zimbabwean lawyer. That the learned Judge found that they were going to Zimbabwe to ‘finalise the transaction.' Assuming that by finalising the transaction’ the learned judge was referring to the consent judgment, there was nothing to show that some tentative or preliminary agreement or understanding had been reached before the 1st Defendant and his advocate left for Zimbabwe to finalise it with the late Dr. KONOSO and his alleged Zimbabwean advocate. He said that the evidence on record shows that the 2nd Plaintiff and Messrs. Munyinda & Co knew nothing about the consent judgment until it was filed and given to them by the 1st Defendant’s advocates. He also said that there was no evidence on record to show that the Zimbabwean lawyer acted for Dr. KONOSO in Cause No. 1994/HP/1092. He pointed out that the 1st Defendant’s advocates subsequent to the filing and sealing of the consent judgment wrote a letter dated 24th July 1995 to MUNYINDA & CO as advocates for the late Dr. KONOSO and Sekeli KONOSO, enclosing a copy of the said consent judgment and requesting MUNYINDA & CO to file a notice of discontinuance. Counsel submitted that there was overwhelming evidence which was not considered by the learned trial Judge to show that the consent judgment was consented to without the knowledge or consent of the advocate of record of the Plaintiffs. Counsel for the Plaintiff then argued grounds 2 and 6 together. He submitted that there was overwhelming evidence on record to show that on 16th June, 1995 when Dr. KONOSO was made to affix his thumb print to the consent judgment, his mental faculties were impaired and the cumulative conduct of the 1st Defendant, DW 1 and Mr. LAKE amounted to undue influence and duress. He pointed out that in paragraph 12 of the affidavit in support of the summons, Dr. KONOSO deposed to his failing health. That this affidavit is dated 23rd March, 1994 and that by 16th June, 1995 his health had degenerated to the extent that he could no longer sign a document, but had to be assisted to affix his thumb print. He pointed out that in her evidence in chief, DW 1 testified that Mr. LAKE asked the late Dr. KONOSO three times if he was happy to sell the five shops and that ‘my father argued quite violently because he got quite irritated because they kept on asking him, ” He submitted that here is a medical doctor, the late Dr. KONOSO too ill to sign a document, responding violently and irritatingly to persistent questions about his intention to sell his property, and eventually had to be assisted to affix a thumbprint to a document, that clearly this is evidence of coercion. Counsel for the plaintiff then argued grounds 3 and 5 together. In arguing these grounds, Counsel said that the late Dr. KONOSO in his affidavit in support of the originating summons stated quite clearly that he did not want D. W. 1 to have anything to do with KONOSO House, which is the subject of these proceedings. He said that Clause 4 B of the consent judgment provides that the Defendant shall ‘upon registration of this consent judgment with this Honourable Court immediately make payment of the sum of seventy million Kwacha (K70,000,000.00) into the Ist Plaintiffs current account with Standard Chartered Bank Limited, Lusaka. ’ That if ‘registration’ of the consent judgment means the filing and sealing of the consent judgment, Counsel claimed that this was done on 16 June, 1995. That when Dr. xl_ _ KONOSO died on 6th November, 1995 over five months after the ‘registration' of the consent judgment, not a single payment was made to the account of the late Dr. KONOSO in accordance with the provisions of Clause 4B of the consent judgment. That the fact that the late Dr. KONOSO made no mention of or reference to the purchase price from 16th June, until he died in November, 1995 is clear testimony that he did not, on account of his mental illness, know or comprehend the content of the document he was made to thumb print. Counsel further said that after the death of Dr. KONOSO, transactions relating to the payment of the purchase price proceeded with deliberate speed. He said that only 10 days after the death of Dr. KONOSO, the Defendant’s advocates by letter dated 16 November, 1995 in disregard of th the modality of payment stipulated in the consent judgment, instructed the Bank to backdate the bank draft and make it payable Mr. LAKE. A bank draft was drawn up in favour of the Defendant’s advocates on 18 November 1995 who in turn paid DW 1. The testimony of DW 1 and accepted by the learned trial Judge was that she applied the proceeds of the purchase price for the treatment and upkeep of her late father is a fabrication and flies in the face of the facts. Counsel submitted that in view of the above facts, the learned trial Judge ought to have treated DW 1’s testimony on the state of her late father’s mental state when he was made to affix his thumb print with caution as DW 1 had every motive to prevail over her ailing father to execute the document because she knew that she would be the main beneficiary of the proceeds of the purchase price, contrary to her father’s explicit wishes excluding her from the transaction relating to the KONOSO house. As to ground 4, Counsel referred us to paragraph 4 of the affidavit in support of the originating summons where the late Dr. KONOSO had deposed that, *1 then requested my elder brother the second plaintiff to help to secure my title back to me and execute a power of attorney in his favour to manage my affairs because I am unwell and I live very far'. He said that the power of attorney was drawn up but not executed or registered. He said that Dr. KONOSO made his elder brother a joint Plaintiff in Cause No. 1994/HP/1092 because he wanted him to protect his interests. He further submitted that there is no evidence to show that Dr. KONOSO dealt with the property then subject of this action in a manner which showed that his brother was irrelevant to these proceedings. That immediately after Sekeli KONOSO learnt about the consent judgment he traveled to Zimbabwe to appraise his brother about it. That the said Sekeli KONOSO was therefore an agent of Dr. KONOSO to protect his interest in view of his failing health and the non-registration of the power of attorney cannot deprive him of a standing in the action. That in any event under Order 14 of the High Court Rules, the Defendant was at liberty to apply for an order of misjoinder of the 2nd Plaintiff. That the Defendant at this stage was estopped from claiming that Sekeli KONOSO was not a proper party to the action and that his exclusion from the consent judgment was fatal. He urged us to allow the appeal. In reply, Counsel for the Defendant said that with regard to ground 1, the learned trial Judge’s position concerning consent judgments is correct and tenable at law. He referred us to the case of LUSAKA WEST DEVELOPMENT COMPANY LIMITED AND B. S. K. CHITI (RECEIVER) AND ZAMBIA STATE INSURANCE CORPORATION VS TURNKEY PROPERTIES LIMITED (4) where we had said that a consent judgment or agreement can possible only be set aside if there are proper grounds upon which the validity of any contract could be impugned such as fraud or mistake. He said that the main issue in this ground is whether the consent to judgment was given in circumstances upon which the validity of any contract could be impugned. He said that in cross-examination DW 1 said the following at page 64 of the record: “I deny that at the time my father put his thumb on the document, he did not comprehend what was going on. That is an insult The firm of lawyers we were dealing with was a reputable firm. ” He said that the learned trial Judge found this as a fact. That the contention by the Plaintiff that there is no evidence on record to show that Dr. KONOSO was adequately represented by a Zimbabwean lawyer when he affixed his thumb to the consent judgment has no factual basis. That the evidence on record show that Dr. KONOSO was so adequately represented. He said that the crux of ground 1 in the Plaintiffs appeal is that since Messrs MUNYINDA & CO were on record in Cause No. 1994/HP/1092 as advocates to Dr. KONOSO, no consent judgment could be entered without the said advocates consent. He said that this contention is untenable and flawed as the relationship between an advocate and his client is one of agent and principal. That at its widest the advocates authority is ostensible and he again referred us to the case of LUSAKA WEST DEVELOPMENT COMPANY LTD AND B. S. K. CHITI (RECEIVER) AND ZAMBIA STATE INSURANCE CORPORATION VS TURNKEY PROPERTIES LTD (1) on the point. That consequently, the mere act by a client of retaining an advocate does not fetter or remove the client’s right to enter into any compromise in relation to the case for which the advocate has been retained. That the client is perfectly entitled to enter into a compromise with the other side in the absence of his advocate. As to grounds 2 and 6, Counsel said that the evidence relied upon by the Plaintiff purportedly showing that Dr. KONOSO’s mental faculties were unpaired is the medical report shown on page 57 of the record. He said that it is interesting to note that quite contrary to the Plaintiff’s assertions, the said medical report does not go to show that Dr. KONOSO’s mental faculties were impaired. That this is a mere inference by the Plaintiff who is not qualified to draw such an inference. The said medical report only shows that Dr. KONOSO had a problem in walking (paralysis) and memory confusion (loss). That this is not the same as impairment of mental faculties and that in any case, the said medical report was prepared on 9th May 1994 and cannot therefore be evidence to show the state of mind of Dr. KONOSO as at 16 June, 1995 when the consent judgment was thumb printed by him. Further that the author of the said medical report, Dr. J. C. MUVUTU, was not called as a witness by the Plaintiff. Further, that there was no evidence led in the court below by the Plaintiff as to the state of mind of Dr. KONOSO on 16th June 1995. That in the circumstances, the learned trial Judge was only left with the evidence of DW 1 on this point. He said that DW 1’s testimony on this issue was as follows:- At page 63, "The cause of my father’s irritation was because they kept on asking him whether he had made up his mind. It is not true that my father got irritated because he did not wish. I disagree totally. ” At page 64 line 6-7; "at the time of the consent judgment he was mentally alert He had only walking problems. ” At page 64 line 9-11; "I deny that at the time my father put his thumb on the document he did not comprehend what was going on. That is an insult ” Counsel said that in the circumstances, the learned trial Judge was correct in his conclusion that there was no evidence whatsoever that Dr. KONOSO’s mental faculties were impaired by illness. That similarly, there is no evidence of undue influence or duress on the record. That: the inferences drawn from the facts by the Plaintiff in their arguments are untenable. He referred us to the case of BWANAUSI VS THE PEOPLE (5) where we held that where a conclusion is based purely on inference that inference may be drawn only if it is the only reasonable inference on the evidence. He said that DW 1 had already explained in her evidence why she fetched the stamp and assisted her father to affix his thumbprint and why her father argued violently when asked whether he had made up his mind to sell the five shops. He submitted that the learned trial Judge’s conclusion that there was no evidence of duress and undue influence is correct. As to ground 3, Counsel for the Plaintiff submitted that the learned trial Judge found as a fact that the proceeds of the purchase price were applied to the treatment of Dr. KONOSO and upkeep and education of his children and the balance distributed by Mrs. KONOSO among Dr. KONOSO’s children. He said that in this ground the Plaintiff seeks the court to interfere with the aforesaid finding of fact by the learned trial Judge. He referred us to the case of NKHATA AND FOUR OTHERS VS THE ATTORNEY­ GENERAL (6) where we set out the grounds on which an appellant court can interfere with findings of fact made by a trial court. He further submitted that in any case, the ends to which the proceeds of sale were applied are an irrelevant consideration in so far as the consent judgment is concerned. That it is sufficient only to show that the purchase price under the consent judgment was paid. As to ground 5, Counsel said that, save for the issue raised in the Defendant’s cross appeal concerning the amount payable as purchase price under the consent judgment there is nowhere in the judgment where the learned trial Judge held that payment of the sum of US 111,000.00 was in accordance with the signed consent judgment. As to ground 4, Counsel submitted that it is trite law that where it is desired to formally appoint an agent to manage the affairs of another person, the necessaiy authority is conferred by a power of attorney. That this instrument is imperative where the agent is dealing with land. He said that the Plaintiff by his own admission made it clear that the purported power of attorney was not executed and registered and that this is where the matter ends. He further said that the fact that Sekeli KONOSO was a joint Plaintiff in Case No. 1994/HP/1092 did not confer upon him any interest in the land being the subject of the consent judgment. That in the circumstances, Dr. KONOSO could deal with the said property in any way he so wished without reference to Sekeli KONOSO. That Sekeli KONOSO had no title or proprietary interest in the property the subject matter of the action and, consequently, his consent to the judgment could properly be dispensed with. On the cross appeal by the Defendant, Counsel submitted that the learned trial Judge erred in fact when he held on page 9 of the record that ’’all five shops were sold to the Defendant at US $120,000.00 and that US $111,000.00 has already been paid” when the consent judgment at page 32 of the record shows that the purchase price was K120,000,000.00 and not US $120,000.00 and that the Defendant had paid US$65,000.00 and US $46,000.00 as shown on pages 49 and 52 of the record which at that period the foreign exchange rate was equivalent to K120,000,000.00. He submitted that the judgment of the court below should therefore be varied to the extent and manner stated in the cross appeal. In reply to the cross appeal, Counsel for the Plaintiff submitted that the Defendant’s own witness at page 63 of the record admits that there was a short fall of US$9,000.00. That there was evidence on record to support DW 1 ’s testimony. He said that it is common ground that the purchase price was K120,000,000.00 and that as evidenced by the document in the Plaintiffs supplementary bundle of documents, the exchange rate as at August, 1995 was K963.00 per US$1.00. That the purchase price at the time the Defendant was obliged to pay in terms of the consent judgment was US$124,485.00. We have considered the submissions of Counsel for the Plaintiff and for the Defendant as well as the evidence on record. With regard to the first ground of appeal, the learned trial Judge had held that, “It is clear in that, to take the sting out of it, Dr. KONOSO ignored Messrs. MUNYINDA & Co and when Mr. MUNYINDA received a letter from Dr. KONOSO’s Harare lawyers about the property in question, he should have treated himself as no longer acting for Dr. KONOSO and should have rendered his bill. The fact that Mr. MUNYINDA was by passed is, in the circumstances of this case, not a ground upon which to set aside a consent judgment. ” It has long been settled that a client is at liberty to change his advocate at any time and there is evidence on record that at the time that the consent judgment was being settled, Dr. KONOSO was being represented by Mr. LAKE of Winterton, Holmes and Hill, a firm of advocates in Harare. As we re-affirmed on the case of LUSAKA WEST DEVELOPMENT COMPANY LIMITED AND B. S. K. CHITI & Z. S. I. C. LTD VS TURNKEY PROPERTIES LTD (4) a consent judgment can only possibly be set aside upon proper grounds upon which the validity of a contract can be impugned such as fraud or mistake. There is no suggestion of fraud or mistake in the evidence on record and the fact that Dr. KONOSO had changed his advocates and affixed his thumb to the consent judgment without reference to his advocate of record is not a ground for setting aside the consent judgment and this ground of appeal cannot succeed. As to grounds 2 and 6 the evidence relied on by Counsel for the Plaintiff to show that Dr. KONOSO’s mental faculties were impaired at the time that he affixed his thumb to the consent judgment is the medical report appearing on page 57 of the record. This medical report states that Dr. KONOSO had, ‘problems in walking (paralysis) and memory confusion (loss). ’ It is not clear when this report was prepared but it purports to have been prepared at the behest of Dr KONOSO’s daughter for the purpose of immigration and court proceedings. This report does not state that Dr. KONOSO’s mental faculties were impaired by his illness, on the contrary the evidence of the daughter, DW 1 was that at the time that Dr. KONOSO was affixing his thumb to the consent judgment, he was ‘mentally alert ’ Similarly, there is no evidence on record that any of the persons who were present exercised any undue influence or duress on Dr. KONOSO. These two grounds cannot succeed as well. In ground 3 Counsel for the Plaintiff seeks to attack the finding made by the learned trial Judge that the proceeds of the purchase were applied to the treatment of Dr. KONOSO and upkeep and education of his children and the balance distributed by Mrs. KONOSO among Dr. KONOSO’s children. This was a finding of fact made by the learned trial Judge and as we stated in the case of NKATA AND FOUR OTHERS VS THE ATTORNEY GENERAL (6) for us to interfere with this finding, we have to satisfy ourselves that the finding made by the learned trial Judge was either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that it was a finding which, on a proper view of the evidence, no trial court acting correctly can reasonably make. We do not consider that this is the position in the matter before us. In any case as pointed out by Counsel for the Defendant, the ends to which the proceeds of sale were applied are an irrelevant consideration in so far as the consent judgment is concerned. The issue that concerns us is whether or not there is evidence to show that the purchase price under the consent judgment was paid. We are satisfied that there is such evidence and this ground cannot succeed as well. We shall deal with the issue raised in ground 5 when we come to consider the Defendant’s cross appeal. As to ground 4, Counsel for the Plaintiff conceded that the purported power of attorney was neither executed by Dr. KONOSO nor registered. In the absence of this, we find it difficult to discern what proprietary interest Sekeli KONOSO could have had in the property that was the subject matter of these proceedings. The fact that he was a joint Plaintiff in case No. 1994/HP1092 does not confer title to the property to him. This was not necessary to obtain his consent to the consent judgment and this ground of appeal cannot succeed as well. We now turn to the Defendant’s cross appeal. At page 9 lines 15 to 20 of the record, the learned trial Judge found that, “further it is not in dispute that while in Harare Dr. KONOSO in the presence of his own daughter Bridget executed a consent judgment in which all the five shops were sold to the Defendant at US$120,000.00 and that US$111,00.00 has already been paid. ” An examination of the consent judgment on page 32 of the record will show that the purchase price was K120,000,000.00 and not US$120,000.00. The evidence on record also shows that the Defendant paid US$65,000.00 and US$46,000.00 which at the foreign exchange rate prevailing then translated to KI20,000,000.00 being the purchase price in the consent judgment. Thus a consideration of the issues raised in ground 5 of the Plaintiff's appeal is otiose. We would therefore allow the Defendant’s cross appeal to the extent that the purchase price in the consent judgment was K120,000,000.00 and not US$120,000.00 and that from the evidence on record, we are satisfied that this was paid in full. As to the Plaintiff s appeal, this is dismissed with costs, the costs are to be taxed in default of agreement. D. M. Lewanika DEPUTY CHIEF JUSTICE I. M. C. Mambilima SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE 20