Finance Bank Zambia Limited v The Administrator of the Estate of John Wesley Billingsley (SCZ Judgment 12 of 1999) [1999] ZMSC 129 (1 April 1999)

(68) SCZ Judgment No. 12/1999 SCZ APPEAL N0.67/96 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) B E T W E E N FINANCE BANK ZAMBIA LIMITED APPELLANT AND THE ADMINISTRATOR OF THE ESTATE OF JOHN WESLEY BILLINGSLEY RESPONDENT Coram: Bweupe, DCJ; Sakala and Chaila, JJS 7th August, 1997 and 1st April, 1999 For the Appellant Mr. Roberts, Legal Counsel Finance Bank For the Respondent: Mr. Nchito of Nchito & Company J U D G M E N T Chaila, JS, delivered the judgment of the court. In this case there are two appeals against the ruling of the High Court. The first is the appeal by the appellant against the decision of the High Court ordering specific performance of the contract between the appellant and the respondent on the pr ice to be determined by the Commissioner of Lands. The other appeal is a cross-appeal by the respondent against t h e decision of the High Court upholding the contract between t he two parties. Briefly, the facts as found by the learned trial commissioner were that there was a contract of sale entered between the two parties. The (69) - J2 contract was in respect of property known as S/D of Farm No. 737 Emmasdale, Lusaka. The contract of sale was entered between the Financing Company which later became Finance Bank and the Administrator of the estate of John Wesley Billingsley and the price agreed by the parties for the sale of property was K2,105,000.00. The contract was made in January, 1989. The learned trial commissioner on the validity of the contract ruled that since legallity of the contract had not been brought into question, the contract had been lawfully entered into by the Administrator General and that the contract was enforceable notwithstanding the subsequent revocation of his appointment thereof. The learned commissioner held that the amount of money at the time of delivering the judgment was far much lower as a result of the non-ending of the de valuation of the kwacha. He was of the view that the interest of the surviving spouse and young children of the family obviously needed to be protected. For that reason and in his absolute discretion, he ordered tha t the properties in question be valued again by the Commissioner of Lands to determine the current real monetary va l ue of the properties and that the current market value thereof shall be the purchase price which the appe ll ant's bank shall be liable to pay for the properties and that all the proceeds thereof would go to the beneficiaries of the estate. The appellant not being satisfied with the order that the properties should be valued, appealed against ( 70) J3 that order. The appellant has relied on two grounds of appeal and these are: 1. 2. in law by subs ti tu ting The court below erred the the contract price of K2,105,000.00 to be determined by current monetary value the Commisioner of Lands as this had the effect of altering and terms of that in performance was occasioned by the respondent. the default the contract and delay the for The court below erred in law by subs ti tu ting the current monetary the contract price £or in fact adduced in value as no evidence was the respondent's advocates the proceedings by of hardships family and that this was based merely on viva voce submissions of counsel and that in any event the question of hardship should be determined at the date of the contract and not after. respondent•s the to Mr. Roberts, counsel for the appellant, has relied heavily on the written heads of argument to which we sr.a l l refer later in our judgment; but before he argued the appeal, the appellant's counsel raised a preliminary issue. This was in res pee t of the production of an affidav i t of the respondent filed on 22nd November, 1996. He u r ged t he court to disregard the affidavit on the following g round s : 1. 2 . The first ground was that the affidavit introduced new evidence. were commenced adduced whatsoever by way of contents. contents of other evidence before argued to hour so as to raise the possibility of a re-trial. He argued that the proceedings in 1992 and no evidence was The the affidavit never adduced any lower court. He the affidavit was later this the the effect of a possible defence at raise that The second reason for his objection was that the memo alluded to no evidence that had been adduced. The affidavit was filed after their memo had been filed. this evidence should have been adduced in the lower court and urged to enco urage this practice. the that respondent had raise to the issues she wanted to raise in the Supreme the court not He argued further ample opportunity He argued that ( 71 ) J4 Court. The evidence she wanted to adduce was within her knowledge. Mr. Roberts referred us to Section 25 of the Supreme Court Act Cap 5 2 which prov ides for the taking of "future evidence " in addition to evidence already adduced before the l ower court. He further referred us to Order No. 59/1/10 of the Supreme Court Rules. In reply on this preliminary issue, Mr. Nchi to, counse l for the respondent argued that the matter never went to trial. The documents which the respondent wanted to introduce were not available. He argued that the document in question was about the correspondences the juniors in the Administrator General's office and the Administrator General, advising the Administrator General not to sell the property becau se the beneficiaries had objected. He argued that the document was an internal matter which showed that the Administrator General had breached the trust. Mr. Nchi to further argued that the search revealed that the case was decided on legal points. We granted the application to adduce fresh evidence and reserved reasons for our decision in main judgment. We carefully considered the arguments of both counsel on the issue. We took note of the fact that the matter was not decided through a trial. The matter came before t h e Deputy Registrar on application through summons. The issues centred on the status of the plaintiff at the time. Mr. Nchito was of the view that since the matter was purely legal, there was no need to file any affidavit ( 72) in opposition. The matter proceeded on the legal points and the Deputy Registrar decided to grant an application. They appealed tc the judge at chambers and the judge granted specific performance but ordered a new price. While the case was going on, the respondent came across letters or memoranda between the then Administrator General and members of staff in the Administrator General's office. These documents supported the new Administrator General's case that they did not consent or agree to the sale of the pro?erties. This evidence, according to her, was not available at the time the matter was being dealt ~ith by the Deputy Registrar. We considered this issue and we were in agreement with her that she was not in a position of knowing the existence of the internal memo a~ the time the matter proceeded to court. For that reason we exercised our discretion in her favour and a ll owed the document to be admitted. Mr. Roberts, on the first ground submitted that the appellant was appealing against that part of the judgment delivered on 26th September, 1995 in which it was ordered that the properties known as Sub-divisions 24 and 46 of Farm 737, Emmasdale, Lusaka be revalued by the Commissioner of Lands and the Contract of Sale entered into on 18th January, 1989 between the appellant as purchaser and the Administrator General as vendor be specifically performed at the current monetary value instead of the contract price of K2,105,000.00. Mr. Roberts argued that the appellant (73) J6 was perfectly happy with the judgment which held that this leasing Finance Bank Limited was one and the same bank as Finance Bank Zambia Limited. He f urther argu e d that the appellant was also perfectly happy wit h the substance of the judgment which granted an order of specific perform ance save for the question of the price. Mr. Roberts argued that the purchase price of the properties under the contract r of sale was specifically and mutually agreed at K2,105,000.00 in January, 1989. The appellant as purchaser paid Kl,052,500.0 0 representing 50% of the purchase price to the Administrator General prior to the execution of the contract. Mr. Roberts argued that although the price of K2,105,00 0 . 00 might not seem like a lot of money today for the two properties, that was a lot of money at the time the contract was e n tered into. He submitted that the purchase price in t he contract of sale was a material term of the co n tract and which persuaded the appellant to enter into the contract. He cited, in favour of his argument, Halsbury's Laws Vol. 44 on Specific Performances paragraph 446 at page 3 0 8 which states; "The price is a material of Sale, unless the price contract, or machinery is provided for its ascertainment, the contract is incomplete and cannot be enforced." in every Contract the is ascertained by term Mr. Roberts submitted further that the lower court exercised its discretion wrongly by ordering that the c o n tract be specifically performed at the current market value o f the properties. He maintained in his argument the ef f ec t of such an Order was to alter the terms of the or i ginal ( 74) J7 Contract of Sale. The counsel further argued that it was the respondent 1-.'ho was in breach of the contract and the consequent seven years delay in completing the transfer was caused by the respondent. He argued further that the appellant on its part had always desired to complete the transaction and it could not be made to suffer the consequences of the respondent's breach by being made to pay a higher price. Mr. Roberts referred us to Halsbury's Laws \iol. 42 on the Sale of Land, paragraph 260 at page 180 where it is stated: "The effect of an Order for specific performance. After an Order for specific performance the contract continues court controls the manner in which the contract will be performed." in existenc e , the but Mr. Roberts submitted further that the Order c£ Speci f ic Performance ought to have been on the exact terms as was contractually agreed between the contracting part i es and the lower court's jurisdiction was limited on l y to the manner in which it was performed. On ground two, Mr. Roberts submitted that the respondet did not adduce any evidence either by way of affidavit or viva voce evidence to rebut the appellant's evidence. Neither was there any evidence adduced to substantiate the respondent's allegations of hardship. He submitted that the lower court erred by relying on the verbal submissions of the counsel for the respondent in determining the question of hardship. Mr. Roberts further submitted that the question of hardships should always be determined at the date of contract, i.e. January 1989 and not at the date of the Order of Specifi c r ( 75) J8 Performance. He relied on Halsbury's Laws on Specific Performance, Vol. 44 paragraph 467 at page 320. He further submitted that the question of inadequacy of consideratio n should also be determined at the date of contract a nd not after. He relied on Halsbury 's Laws Vol. 4 4 paragraph 471 which provides: "Inadequacy of consideration - whenever the question inadequacy of consideration is raised i t must of generally be determined as at the date of the contract." He further submitted that in exceptional cases such as where the change in conditions resulting in the hardship arises out of the conduct of the appel l ant then hards h ip subsequent to the date of contract may be a ground for refusing Specific Performance. He referred us agai n to Halsbury 's Laws paragraph 4 73. He submitted that in this case the conduct of the appellant did not create any hardship on the respondent. Mr. Nchito, counsel for the respondent gave br i ef response to the two grounds appeal. He decided to deal with the other issues in the cross appeal. In reply to the frist ground Mr. Nchi to submitted that the court below ( assuming it was right in ordering specific performance) acted properly by requiring that the contract be enforced at today's values, since all the court was doing was requiri ng the amount to be paid at today's equivalent levels. The court was exercising its discretion in settling the matter equitably, and that must be born in mind that specific performance is a discretionary remedy which t he court ( 76) may appl y as it deem ed fit. Mr. Nchi to further submi t t ed that the effect of the court's decision was to give the cont~act performance on s imi lar te rms as it would have been performed in 1989 since i t was assumed that two million in 1989 was th e market val ue and to sell the properties at market price today was in keeping with an equitable pe rf ormance of the co ntract, espec ially that the de posit paid to the Adminstrator General was paid back . In respo nse t o the second ground (ass uming the High Court was right in grant ing specific performance), th e counse l submitted that the court had a right and duty to determine the matter in a manner that would be in keeping with the norms of justice; if the decision to sell the properties at today's values taking into account all surrounding c ircumst anc es such as the matters rai sed in the cross appeal is not atr ocious then th e judge ccted properly be cause the altern ative was to grant the respondent unconditional l eave t o defend and he submitted that i t was not atrocious. Fr o m Mr. Nchi to' s subm i ssio n it is clear that some issues touching on appellant's grounds of appeal are considered in the cross appeal. It i s necessar y , ther e fore, £or us to refer now to the cross appeal, then l ater we shal l c oncl ude the two appe als . Th ere are ma inl y three gr ou nds in the cross appeal. These are : 1. authority The Administrator General to deal with the land because the beneficiaries had put a caveat on i t and the purchaser should have inquired as to the reason for the caveat. had no JlO The contract was entered contrary to the Registration of Act. in an illegal Business ( 77) name Names The foregoing notwithstanding the court exercised its discretion wrongly by granting specific performance which would to a breach of trust. lead 2. 3 . Mr. Nchito argued grounds l and 3 together and later proceeded to ground 2. On grounds 1 and 3 Mr. Nc hito subm i t ted that: and when the beneficiaries the learnt they put It was quite clear from the record that the Administrator General acted arbitrarily without consulting beneficiaries of his intention to sell the properties in a caveat because they did not want him to sell; this caveat notwithstanding the Administrator General still insisted on trying to sell until he was removed as Administrator; al though the Administrator General to sell by virtue may have had legal right of his office he had no authority to sell because This being of the objection of the beneficiaries. the case any sale would have been in breach of trust. He maintained that i t was a settled principle law that courts will not grant the remedy of of specific performance where lead to a breach of trust for this would be contrary to the norms of equity. This is discussed in Halsbury's Laws of England 3rd Edition Vol. 44. The learned writers state at paragraph 466 that, so would to do the "the courts discretion to grant specific performance is not exercised if the contract is not equal and fair. Even though no fraud, duress or undue influence such as to justify rescission is shown, the court may still not enforce the contract if i t would be consistent with equity and good conscience not do so." Further in paragraph 468, "Specific performance may be denied because relevant the plaintiff has facts even though he is under no duty to disclose them and to an actionable fraudulent, negligent or innocent misrepresentation." the suppression does not amount suppressed some Mr. Nchito complained that the appellant never disclosed (78) Jl l t hat th e Adm i nist r ator General, at the time Mr . Cha tu rv ed i, was wo rking fo r them and that h is wi f e al ways work ed fo r the m. He further referred t o Halsbury's Laws o= England Fourth Edition, Vo l. 44 wh er e i t s tat ed: "A species of unfairness which may stay the hand of the court is that the contract, if enforced, would be i njur ious to third persons, i ncluding membe rs of the public or would involve a bre ach of trust or a breach of a prior c ontract wi t h a third person •.••• " The counsel for the re spond e nt argued fur ther th at this sam e posi tion is repeated in Si r Edw ar d Fry ' s 'Specific Per=ormance' 6 th Edi ti on 19 21 at page 19 4 pa ragraph s 407 a nd 408 . Counsel for th e appellant Mr . Roberts on cross - appe a l submitted that the Adm i nistrator Genera ~ had every right to de al wi th t he pro pe rty a s t he said pro per ty was ves ted in the Adminis~ ra tor Gene ral pursuant t o Section 13 of th e Admi nistrator General's Act Cap 200 of the Laws of Zambia . The Admini st rat or Gene ra l therefore had statutory r i ghts to sell th e property and dis tr ibu t e th e as se ts of the Est at e pursuant to Section 21 of the Act. He further argued that the Admini st rat or General had no legal ob lig ation under the statut e t o o btain th e cons e nt o f th e re sp ond en t a s ben ef ici ar y. On the caveat, the counsel argued that the caveat was pl aced on the property by the re spo nd en t on 21st November, 1988 and tha t was p la ced s ix month s af ter th e Adm in is tr ator Ge ner al had accepted the appellant's offer to purchase the property . There was a v al id contract entered into by offe r and acceptance on 5t h May, 198 8 at wh ich t im e the pr op er ty wa s unencumbered . (79) Jl2 ~r. ~oberts argued further th at the respondent as cavea to r at la~ should have had an enforceable interest in land supported by a valid d ocument to justify placement of the caveat. He dre~ our attention to the case of Construction and Investme nt s Holdings Limited VS William Jacks (197 2 ) ZR 66 . Mr. Roberts argued that the respondent obtained High court Order revoking the Administrator Genera l 's grant on 25th July, 199 0 in the case of Florence Mwanamwale Billings ley vs Adminis t rator Ge neral and Reverend Ernest Gerald Billingsley 1 990/HP/442. He submitted that the respondent's application was granted Ad Colligenda Bona to administer the property of the Estate was ~efused by the High Court on 8th October, 1991 in the case of Florence Billingsley vs the Estate of Late Dr. J o hn Wesley Billing sley 1991/HP/1563. The counsel argued that the r es pondent had at no time adduced evi d ence of her en titlement as a bene fi ciary to the property either at the time of placement of the caveat or at th e time the case was being argued in the Supreme Court. He further argued that the appellant had to obtain an Order of Appointment of Administrator Pendete Lite in cause number 1991/HP/433 for the purpose of the present litigation and according to the counsel, that did not en ti tle her to the property . Counsel further argued th at Section 18(2) of the Administrator General's Ac t Cap 200 o f th e Laws of Zambia clearly provides that upo~ revocation and new grant all liabilities of th e Administr at or General under any contract entered into by him was vested in the Adminis t rator General obtaining such new grant subject to all lawfu l contracts made relating to the estate. He (80) Jl3 maintained that the lower court was therefore right in holding that the revocation did not invalidate the contract and neither was the Administ=2tor General an agent of the respondent. On ground two, Mr. Roberts argued that the lower court was correct in holding that Leasing Finance Bank Limited was one and the same entity as Finance Bank Zambia Limited. That this Leasing Finance Bank Limited merely changed its name pursuant to Section 13 of the Companies Act Cap 686 to Finance Bank Zambia Limited. He further argued that as a limited company the appellant was not bound by the requirements of the registration under Section 2(1) and 3 of the Registration of Business Names Act. On grounds three and four, Mr. Roberts argued that the lower court exercised its discretion correctly by gran t ing specific performance as in fact no evidence wha t soever . I was ever adduced by the respondent to impugn or i nva l idate the contract of sale. No evidence of impropriety on the part of the Administrator General, unfairness or oppression of the contract was ever adduced which could have moved the lower court to decide otherwise. Mr. Roberts further argued that there was no breach of trust at all by the Administrator General. No evidence whatsoever was adduced to establish such trust or any alleged impropriety on the part of the Administrator General. He urged the court to disregard the allegations made in the respondent's affidavit as they raised issues which were never before the lower (81) Jl4 court and in any event Section 25 of the Supreme Cou r t Act relates to the taking o~ "further evidence" in addi t ion to the evidence already adduced in the lower cour t. Counsel for both parties have referred us to var i ous authories and statutes in support of their argumen t s. We are agreatly indebted to them and thank them for the effo~ts they have made in bringing to our attention the authorities. We have read them and we have taken them into account in our decision. Counsel for the appellant in his response to the cross-appeal has argued greatly on the rights of the caveatcr. He has submitted that the respondent did not have an interest in the matter and should not have placed a caveat. =n the court below, two issues arose on the main application for review. The application was for an order for the remo~al of the caveat placed by the beneficiary of the properties and for an order of the specific performance of the contract entered between the bank and the respondent. The learned commissioner decided to deal with the question of specific performance of sale first as he considered i t to be of greater importance and ruled that if he found for the plaintiff's ban k t h e issue of the caveat would automatically fall away. The learned commissioner then proceeded to deal with the question of specific performance and ordered that the r e be speci f ic performance. There was, therefore, no need for him t o consider the merits and demerits of the caveat but later in his judgment he talked about the caveat in ques ti on (82) JlS when he dealt with the validity of the contract. The evidence through the affidavit of the appellants showed that the respondent was one of the beneficiaries of the estate. It could not be questioned that a beneficiary to a deceased estate would not have an interest in the estate. We are of the view that a beneficiary has sufficient interest in the deceased estate and may take steps to protect that interest. Since the caveat was not given priority by the trial commissioner and since i t automatically fell away by the granting of the specific performance, we do not find it necessary to consider arguments of both counsel on this issue; the whole matter rests on the specific performance and the learned commissioner's decision. Both counsel have vigorously submitted on the issue of Registration of Business Names and on the change of the name from Leasing Finance Bank to Finance Bank. We have seriously considered the authorities cited by the counsel in their arguments, particularly Registration of Business Names Act Section 2 ( 1) and 3 Cap 68 7 of the Laws of Zambia. This matter was fully argued in the court below and the learned commissioner gave i t a very serious consideration and he came to the conclusion that the Leasing Finance Bank was one and same as the finance Bank Limited. We entirely agree with the learned commissioner's conclusion and hold that he never erred in coming to that conclusion. This case went to the learned commissioner as an appeal from the District Registrar. The District Registrar ( Jl6 (83) had given a ruling in fa,vour of the respondent that the Finance Bank was a differe~t entity from the leasing Finance Bank and had therefore no capacity to enter into contract of sale. It can be seen that the appeal to the learned Commissioner centered around legal provisions regarding the legality of the appellant's company or bank. The learned Commisioner did not have the advantage of reading the fresh affidavit produced before us. The affidavit before the court shows - (i) that the respondent and other beneficiaries objected to the sale of the properties and the Administr2tor General was informed of the objections; ( ii) that there was no cause to sell the properties and that these properties were required to raise money for childrens' education in the United States of America; (iii) that the Administrator General and his wife had close relationship with Finance Bank; and ( i V) that Finance Bank was prepared to pay more money than what was stated in the contract. On the evidence available before him, the learned Commissioner could not be found to have erred in concluding that there was a serious challenge to the validity of the contract. We are wondering whether the learned trial Commissioner would have come to the same conclusion if the facts disclosed in the affidavit and internal memoranda had been placed before him. The appeal before the learned trial Commissioner - Jl7 - (84) was mai~ly on the capacity o~ the parties to the con tract in that t he appe ll ant had not regist er ed the business name and that it was a new ent ity . T he fac ts before this court have ra ised serious triable issues which would in normal circumstances lead this court to ord er a retr ial. Th e facts however show tha t before the parties entered into contract, th e ben ef iciari es wer e completely opposed to the sale o f the properties and that the Ad min istra tor General and his wife had very c lose relationsh ips with the Finance Bank . , I For these rea so ns we are un abl e to sen d the case back f or rehearing. We now turn t o t he order mad e by th e le arn ed Com mis si one r that the prope~ties should be sol d at market value . It is a set t led principle of law tha t order ~or specific performance ha s a discreti on al li mit. The cour t's d iscreti on to make an order for specific performance was amply dealt with by this court in th e case o f Gideon Mundanda vs Timothy Mulwani and Agriculture Finance Company Limited and s.s.s. Mwiinga, SCZ Judgment NO. 10 of 1987. Th e Supreme Court said in that cas e: "We will d e al first with the question of the learned trial judge's discretion to make an order In this respect we for specific performance. are quite satisfied that the majority of the authorities cited to us related to specific performance of contrac ts other than contracts for the sale of land. The law concerning specific performance of contracts relating to the sale of land is quite clearly set out in paragraph 1764 of Ch i tty on Contracts 25th Edition, which reads in part: LAND The law takes the view that damages canno t adequately compensate a party (85) - .ns - for breach of contract for the sale of an interest in a particular piece of land or of a particular house (however ordinary) . . . . . This authority is supported in countless other instances and in this case i t is quite clear that the learned trial judge did not have his attention drawn to the fact that his discretion in relation to specific performance of contracts for the sale of land was decidedly limited ." ,- ( Th i s iss ue was aga i n d ea l t with by t his c our t in t he c ases o f Vincent Mijoni vs Zambia Publishing Company Limited, SCZ Appeal No. 1 0 of 1986 and Denny Mushiko Liuwa vs Zambia Cold Storage Board, scz Appeal No. 4 of 1992. I n the Liuwa' s case, the case c : ~ijoni and Gideon wer e fullv discu ssed and o r ders f or s ~e cific pe ~forman ce wer e made in t~e follow ing t e rms; (1) The appellant was made to pay all rates on properties and was made t o reimburse the respondent companies any rat es paid by them. (2) The appellants were made to pay interest at a certain rate on the purchase price from the date 0£ the contract to the date of completion . ( 3 ) The appellants were also made to pay in equal share s any t ax pay able on the transfer of property f o r costs of loss payable on the purchase price. In the recent case of Zamb ia Industrial & Mining Corporation and Lishomwa Muuk a , SCZ Appea l No. 1 of 1998 thi s court again considered ~rders for specific pe rf ormance and reaffirmed the principl e s la~d dcwn in the cases already referred (86) - Jl9 to. The appro a ch taken in the Liuwa's case was followed in the ZIMCO case and similar o rder s were made by t his court. These a uthoritie s we have just ref e rred to have affirmed the approach on the exerc is e of the discretionary r emedy regarding se l l i ng of land. The authorities ha v e f u r ther shown th a t i n making orders for specific performance, the question of fairness has been brought into play by making orders referred to in t he case dis c u s s ed. The c o ur~ has however fallen short o f doing away with the agreed contract price. In the present c ase, the learned Commi s sio ner made a direct orde r , bearing t h e contract price, dir e cted ~ha t the property b e sold at the market value. Thi s orcer is no t supported by cur decided cases . The learned Commissioner should hav e followed the a9proach l a id down in t he Liuwa's and ~ijoni's cases. The l e a r n ed counsel wa s on the firm ground when he argued that t h e l e a r n ed Commissioner misdir e c t ed himself whe n he ordered specific performance on current mar ket pri c e. The o r der made by the learned Commissioner is hereb y set asid e. Can this court now o r der specific performance on the p r i c e stated in the co ntr act? The l e a r n e d Commissio n er fou n d that the price of K2 mi l l ion for the p r ope rti es in ques~ion was unreasonable a n d unconscionable. He f ound th at i f the properties were s o l d for that 9rice , i t would cause hardships to tte widow a n d the othe~ b e n ef ici aries. The learned coun sel f~r the appellant has arg~ed that the~ e was no evidence from the respondent t h at thev would (87) - J20 - suffer hardships. It is true that the lower court did not have any evidence on the hardships. The learned trial Commissioner based his findings on the inflation and the value of the Kwacha. This court has now received fresh evidence from the respondent. She has deposed in her affidavit that she has children among the beneficiaries who are going ( to schools in the United States of America and that the properties raise money to meet their f e es. She has maintained that if the properties are sold at K2 million the beneficiaries will suffer hardships. It is a fact that there has been a lot of inflation. The widow would n e ed a constanc flow of cash to meet her childr e~s • f i nancial needs in tte United States of America. Today ~2 million is ridiculously unrealistic. It would complet:ey be unr e asonable and unrealistic ~o sell a block of flats at K2 million. This in our viaw is a case where a remedy cf specific performance at the ' contract price would cause unfairness and hardships to the respondent and other beneficiaries. We are unable to make an order of speci~ic performance. We agree with the l e arned trial Commissi oner to the extent that he refused to order specific performance on the contract price o f K2 million. But o n the fresh evidenc e before us, w~ich evidence we accept, this ~8ntract of sale cannot be supported on any ground. I~deed, on the fresh evidence which the lear n e d trial Commissioner r.=d no opportun it y to ccnsider, i t would still be more un~o~s c i onabl e to enforce the sa l e agreement. (88) - J21 - We also therefore refuse to order specific performance whether on contract price or market value. This means the whole appeal is dismissed. We make no order as to costs. I ····-· ··--- ----·-- -----·· B. K. BWEUPE DEPUTY CHIEF JUSTICE . -- -. . . . . . -- . --. . . . . . . . . . E. L. SAKALA SUPREME COURT JUDGE --------- · ············· ·· M. S. CHAILA SUPREME COURT JUDGE