Good Living Investments Limited v Theresa Mwila Banda (APPEAL No. 155 of 2023) [2025] ZMCA 112 (20 August 2025)

IN THE COURT OF APPEA HOLDEN AT NDOLA &::..:;;..-"' __ tn ;..;._wu==-7 APPEAL No. 155 of 2023 (Civil Jurisdiction) BETWEEN: 2 0 AUG 2U25 ·-- - Rl:GISlRY GOOD LIVING INVESTMENTS LIMITED APPELLANT AND THERESA MWILA BANDA RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA ON: 12th and 20th August 2025 For the Appellants: Z . Sampa, Messrs Simeza Sangwa & Associates For the Respondent: H . C Musa (Mrs), Messrs Milner & Paul Legal Practitioners JUDGMENT CHASHI JA, delivered the Judgm ent of the Court. Cases ref erred to: 1. Suisse Atlantique Societe D' armament Maritime S. A v N. V Rotterdamsche Kolen Centrale (1966) 2 All ER, 61 2. Esquire Roses Farm Limited v Zega Limited (2013) 1 ZR, Vol. 74 3 . Fibrosa Societe Anonyme v Fairbairn Lawson Coombe Barbour Ltd (1941) 2 All ER, 300 -J 2- 4. Atlantic Bakery Limited v Zesco Limited - SCZ Selected Judgment No. 61 of 2018 5. Richard H. Chama & 213 Others v National Pension Scheme Authority & Others - SCZ Appeal No. 101 of 2018 6. Gideon Mundanda v Timothy Mulwani & Others (1987) ZR, 7. Millichamp v Jones (1982) 1 WLR, 1422 8. Savenda Management Services v Stanbic Bank Zambia Limited (2018) ZR, 286, Vol 1 9. Zambia Electricity Supply Corporation Limited v Redlines Haulage Limited (1990-1992) ZR, 170 Legislation referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia Other Works referred to: 1. The Law Association of Zambia General Conditions of Sale, 2018 2. Cheshire Fifoot & Furmston's Law of Contract 5th Edition, New York, Oxford University Press, 2002 3. The Concise Ox.ford English Dictionary 12th Edition, Oxfam 1.0 INTRODUCTION 1.1 This is an appeal again st the Judgment of Lady Justice B. G Shonga, in cau se number 2 02 1/ HPC / 001 9, delivered on 27 th February 2023. -J 3- 1.2 In the said Judgm en t, the learn ed Judge dismissed all th e claim s by the Appellant, wh o was the plaintiff in the cou r t below, with costs. 2 .0 BACKGROUND 2. 1 By amended writ of summon s filed into Court on 29th J anu ary 2 02 1, the Appellant , claimed th e followin g reliefs against the Respond ent as defendant: (i) An Order for specific performance of the contract of sale dated 19th February 2020, as varied by the Addendum which was signed by the plaintiff and prepared by their common Advocates; (ii) An Order that the defendant should give immediate vacant possession of the proposed subdivision to the plaintiff as agreed in the contract of 19th February 2020, in the Addendum to the said contract and as agreed by written consent messages between the parties; (iii) An Order for leave to execute a writ of possession against the defendant in the -J 4- event that the defendant fails to give vacant possession of the proposed subdivision within the time specified by the court; (iv) . An Order for the Registrar of the High Court to execute all the conveyancing documents in the event that the defendant fails to do so in order to assign the sold subdivision to the plaintiff; (v) Damages; (vi) Any other relief the court may deem fit. 2.2 According to the attendant statement of claim, the Appellant and the Respondent entered into an agreement by way of contract of sale dated 19th February 2020 (the Contract) at the agreed price of Kl,000,000.00; for the sale by the Respondent to the Appellant of a proposed subdivision of Lot No. 3054 /M Lusaka (the Property) in extent three (3) acres. 2.3 According to the Appellant, the terms of payment of the purchase price as agreed under the Contract were varied by the parties through written text messages, as well as th'e Addendum to the Contract, (the Addendum) which was prepared by Messrs Olive Legal Practitioners, -J 5- who were acting for both parties and signed by the Appellant. 2.4 Further according to the Appellant, it was agreed by the parties to the Contract under clause 7, that the Appellant as purchaser shall take vacant possession of the Property one month from the date of signing and exchange of contracts. 2.5 It was averred that contrary to clause 7 of the Contract, the Respondent refused to give vacant possession. That pursuant to written text messages between the parties and the Addendum, it was further agreed under clause 7 of the Addendum, that upon receipt of K300,000.00 from the Appellant as part payment of the purchase price, the Respondent would give vacant possession of the Property to the Appellant. 2.6 It was further averred that following the Respondents breach of clause 7 of the Contract, as well as clause 7 of the Addendum, the Appellant proceeded to give notice to rectify ' default. The Appellant also averred that on several occasions, it tendered the payment of the agreed instalments, but the Respondent refused to receive the -J 6- payments. That as a result of the breach of the Contract ' as well as clause 7 of the Addendum dated 31 st March 2020, the Appellant has suffered loss, 1nJury, inconvenience, embarrassment and emotional distress , hence the claims. 2.7 In its defence settled on 15th September 2021, the Respondent averred that the conveyance of the Property was never completed as the Respondent terminated the Contract,· as the Appellant defaulted on the payment terms as at 30th May 2020. 2.8 It was averred that, it was agreed by the parties that upon signing and exchange of Contracts, the Appellant would pay the first instalment of KS00,000.00, as per clause 6 of the Contract and the Appellant was to be granted vacant possession of the Property. 2.9 That the Appellant only paid K300 ,000.00 on 19th March 20.20, pursuant to the amendment of clause 6 (a) of the Contract via text messages between the parties, and did not complete the payment of the KS00,000.00. 2.10 According to the Respondent, it was not a party and was not bound by the Addendum, as she n ever signed the -J 7- same as she did not agree to the Appellant having vacant possession upon payment of K300,000.00. The Respondent admitted that clause 6 (a) was amended pursuant to the text messages, whereas the other terms of the Contract remained the same. 2.11 It was averred that the effect of the amendment was that settlement of the first instalment of KSOO , 000. 00 , would be made by paying K300,000.00 on 19th March 2020 (which was done) and a further payment of K100,000.00 on 30th April 2020 and K100,000.00 on 30th May 2020, which would have completed payment of the deposit of KS00,000.00. 2.12 According to the Respondent, vacant possession was only supposed to be given to the Appellant, a month after 30th May 2020. That the Appellant defaulted on the payments and consequently the Respondent on 15th June 2020, sent the Appellant a notice to rectify, pursuant to General Condition 22 (c) of The Law Association of Zambia General Conditions of Sale 2018 1 (LAZ General Conditions). That the notice indicated that the Appellant needed to settle the balance -J 8- of K200,000.00 within fourteen (14) days. That however the Appellant refused to comply with the notice and the Respondent was therefore at liberty to terminate the contract, which she did on 30th June 2020. 2.13 As earlier alluded to, the Respondent denied being bound by the Addendum as she never signed it and the text messages never stated anything about granting vacant possession to the Appellant upon payment of K300,000.00. The Respondent denied breaching clause 7 of the Contract on account of the Appellant's breach at the time the Appellant sent the notice to rectify. According to the Respondent, there was no contract to breach at the time the alleged notice to rectify dated 17th September 2020, was sent by the Appellant to the Respondent. 3.0 STATEMENT OF AGREED FACTS 3.1 At the behest of the court, the parties on 9 th June 2021, filed into court a statement of agreed facts, which also contained legal issues to be determined by the court. The same read as fallows: -J 9- "AGREED FACTS 1. The defendant is the legal and beneficial owner of Lot 3054/M Lusaka. 2. The Plaintiff is a Company incorporated in Zambia under the Companies Act among share holder and Director is Dr Okeko Jerome 3. That on 19th February 2020, the defendant entered into a contract of sale with the plaintiff for the sale of a proposed subdivision of Lot 3054/M Lusaka at the purchase price of ZMW 1,000,000.00 4. That it was agreed in the said contract of sale that upon signing and exchange of the contract the plaintiff was supposed to pay a deposit of ZMWS00,000.00. 5. In order to vary the terms of the contract dated 19th February 2020, the parties through their lawyers Olive Legal practitioners gave instructions for the preparation of the Addendum to the contract of sale dated 19th February 2020. -J 10- 6. Clause 6 (a) of the contract of sale dated 19th February 2020 was amended pursuant to the text messages between the parties. 7. The said Addendum was prepared as per instruction by both parties and the plaintiff signed the Addendum while the defendant did not sign the Addendum which Addendum varied clause 6 of the contract dated 19th February 2020 as follows; (i) The 1st Instalment of ZMW300,000.00 from ZMWS00,000.00 first instalments (being 50% of the purchase price) which was supposed to be paid upon signing and exchange of contracts has only been received by Olive Legal Practitioners on 19th March 2020. (ii) The buyer has committed to and will pay the 2nd instalment of ZMWI00,000.00 on 30th April 2020 (iii) The buyer has committed to pay the 3 r d instalment of ZMWI00,000.00 30th May -J 11- (iv) Breach of the above payment conditions will result in the cancellation of the contract and will further give the option of the vendor placing the property back on the market and paying back the paid monies less 10 per centum for loss of time and inconvenience to the vendor. (a) The 4 th instalment of ZMW300,000.00 (being 30% of the purchase price) will be paid to Olive Legal Practitioners upon completion of the survey and preparation of the final survey diagrams. (the vendor will be entitled to withdraw (ZMW 200,000.00 from the 4 th instalment (b) The 5 th and final instalment of ZMW200,000.00 (being 20% of the purchase price) will be paid to Olive Legal Practitioners upon transfer of ownership to the purchaser. 8. It was agreed in both the contract dated 19th February 2020 and the Addendum to the said contract under paragraph 7 that the defendant would give vacant possession of the proposed -J 12- subdivision upon signing and exchange of the contract and the Addendum. 9. The plaintiff paid the sum of ZMW300,000.00 as 1st instalment pursuant to the text messages and addendum between the plaintiff and the defendant. 10. The defendant has refused to give vacant Possession 11. There have been correspondence between the representatives of the plaintiff and the defendant through letters, emails and text messages which have been availed to the court. 12. That both parties have given each other notices to rectify the default, which notices have been contested by both parties. LEGAL ISSUES TO BE DETERMINED BY THE COURT 1. Whether the contract of sale dated 19th February 2020 was varied by the parties to the contract through written text messages. -J 13- 2. Whether the contract of sale dated 19th February 2020 was varied by the parties to the contract by the addendum dated 31st March 2020. 3. Whether the payment of ZMW300,000.00 as 1st instalment by the plaintiff to the defendant was in conformity with the variation of the contract of sale dated 19th February 2020. 4. In the alternative, whether the acceptance of receipt of ZMW300,000.00 as 1st instalment for the payment of purchase price of land by virtue of a contract of sale dated 19th February 2020 in place ~f ZMWS00,000.00 which was the agreed figure in the contract of sale before variation by way of text messages and addendum is a waiver of the first term to the effect that the 1st instalment should have been ZMWS00,000.00. 5. Whether possession of the proposed subdivision should have been given to the plaintiff upon the defendant's receipt of the sum of ZMW300,000.00 as 1st instalment in terms of the text messages instructions by the defendant requesting the -J 14- plaintiff to pay ZMW300,000.00 as 1st instalment as the terms of the earlier contract dated 19th February 2020 had substantially changed. 6. Whether the plaintiff is entitled to the claims made in the writ of summons dated 19th January 2021. 7. Whether the addendum though signed by one party is enforceable by the other party who executes the addendum prepared by a lawyer who is representing both parties. 8. Did the acceptance of payment of ZMW300,000.00 as 1st instalment by the defendant for the sale of land in breach of clause 6 (a) of the contract of sale estop the defendant from claiming the balance of the 1st instalment and thereby waive the said condition. 9 . Whether the contract of sale of land dated 19th February 2020 is subject to The Law Association of Zambia General conditions of sale 2018 in the absence of specific inclusion in the specific condition indicating that the said contract is -J 15- subject to The Law Association of Zambia General Conditions of sale. 10. Whether possession of the proposed subdivision should have been granted to the plaintiff by the defendant upon payment of the KS00,000.00 as agreed by the parties at clause 6 (a) of the contract of sale dated 19th February 2020. 11. Whether the defendant validly terminated the contra·ct of sale dated 19th February 2020 when the plaintiff did not pay the instalments in terms of the amendment to clause 6 (a) via the text message between the parties, in the absence of the defendant granting possession to the plaintiff 12. Whether the notice to rectify was properly issued by the defendant in the absence of express agreement between the parties to subject the contra.ct to the Law Association of Zambia General conditions of sale. 13. Whether the notice to rectify was properly issued by the plaintiff in the absence of express agreement between the parties to subject the -J 16- contract to the Law of Zambia General Conditions of sale. 14. Whether the contract of sale dated 19th February 2020 should be interpreted and determined by general contract law. 4.0 DECISION OF THE COURT BELOW 4. 1 After con,sidering the evidence before the court, the skeleton arguments and the submissions by both parties, the learned Judge proceeded to consider the legal issues as were presented by the parties in the statement of agreed facts and legal issues to be determined by the court. The learned Judge then opined that in order to determine related issues concurrently, she had to integrate some of the identified issues. That as a result she had to recast the issues for determination to read as follows: "(i) Whether the contract had fundamental terms (ii) Whether the parties performed the fundamental terms -J 17- (iii) Whether the fundamental terms were varied (iv) Whether the plaintiff committed a repudiatory breach of the contract of 19th February 2023 (v) Whether the defendant validly terminated the contract." 4.2 As regards the first issue, the learned Judge placed reliance on the case of Suisse Atlantique Societe D' armament Maritime S. A v N. V Rotterdamsche Kolen Centrale 1 , where the House of Lords defined a fundamental term as follows; "A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract." 4. 3 The learned Judge then made a finding that there were two fundamental terms in the Contract. The first one being that the Appellant would pay an agreed deposit of KS00,000.00 , upon signing of the Contract; and the -J 18- second being that the Respondent would give the Appellant vacant possession of the Property a month from the date of execu tion. The learned Judge then at page J 1 7 ; made the following finding: "From the evidence of both PW 1 and the defendant, it is clear that the plaintiff did not pay any amount to the defendant towards the deposit on 19th February 2020. I find therefore that the defendant committed a fundamental breach at that point." 4.4 As regards vacant possession, the learned Judge opined that, as exposed by PW 1, and the contextual reading of clause 6 (a) as read with clause 7 of the Contract, the obligation to grant vacant possession was to arise a month after signing of the Contract, provided that the Appellant paid the deposit of KS00,000.00, upon signing and exchange of th e contracts. The learned Judge th en concluded as follows: "Because of the plaintifFs failure to pay the deposit of KS00,000.00 on signing and exchange of the contracts, it is my determination that the -J 19- defendant was not in breach when she refused to yield.up vacant possession on 19th March 2020." 4.5 On the issue of whether the fundamental terms of the Contract were varied, the learned Judge referenced the learned authors of Cheshire Fifoot & Furmston's Law of Contract2 at page 709 , where it was expounded as follows: "What has been created by agreement may be extinguished by agreement. An agreement by parties to an existing contract to extinguish the rights and obligations that have been created is itse 1f a binding contract, provided that it is either made under seal or supported by consideration." 4.6 Reliance was then placed on the case of Esquire Roses Farm Limited v Zega Limited2 where the Supreme Court held as follows: "In Order for a variation of a contract to be a valid defence at law, it must be by mutual agreement of the parties to the contract. The -J 20- variation must also be supported by consideration. " 4.7 The learned Judge from her assessment of the text messages of 18th March 2020, as well as the contested Addendum, concluded that only the Respondent was abandoning her rights to receive a lump sum deposit to which she was entitled. That there was no evidence before the court that the Appellant offered any benefit . upon the Respondent. As a consequence, the learned Judge did not find it necessary to consider the issue of the absence of the Respondent's signature on the Addendum. 4.8 On the consequences of the breach of a fundamental term, the learned Judge found that the Appellant committed a repudiatory breach, when it failed to pay the agreed deposit of KS00 ,000.00, upon signing and exchange· of Contracts. According to the learned Judge, the breach activated the Respondent's entitlement to terminate the Contract, which she did on 20th June 2020. -J 21- 4 .9 On the issue of the contention surrounding the refund of K300,000.00, the learned Judge was of the view that it depended on whether the contract of sale was governed by LAZ General Conditions. The learned Judge was of the view that because the contract on the face of it, stipulated a link with the LAZ General Conditions, to the extent that they do not conflict with the express terms and conditions of the contract, the general conditions were applicable. 4.10 According to the learned Judge , bearing in mind that the Contract did not address the issue of the refund upon default, she saw no barrier to imply clause 22 (c) of The LAZ General Conditions into the contract, as it would not create any inconsistency. 4. 11 On the claim for the relief of specific performance, the learned Judge held that; considering that the Respondent validly terminated the Contract, the Appellant, being the purchaser who committed a repudiatory breach, cannot turn around and ask for specific performance. The learned Judge in her holding was persuaded by the English case of Fibrosa Societe -J 22- Anonyme v Fairbairn Lawson Coombe Barbour Ltd3 where the court made the following observation. "The claim for specific performance was obviously a hopeless one. The plaintiffs were in breach as to the payment of the €600 and that fact alone would be sufficient to debar any claim for specific performance." 5.0 THE APPEAL 5 . 1 Disenchanted with the Judgment , the Appellant has appealed to this Court advancing the following grounds , as contained in the amended memorandum of appeal dated 23rd November 2023: (i) The lower court erred both in law and fact when it recast the issues for determination and ignoring what was pleaded by the parties. (ii) The lower court erred both in law and fact in holding that the contract of sale between the Appellant and the Respondent had not been varied. (iii) The lower court erred both in law and fact when it misconstrued the terms of the contract of sale when it held that yielding of vacant possession was premised on the Appellant paying KS00,000. -J 23- (iv) The lower court erred both in law and fact in holding that the Appellant was not entitled to an order for specific performance. (v) lower court erred that The determined entitled to a refund. law when it the Appellant was not in 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 At the hearing, Mr Sampa, Counsel for the Appellant relied on the Appellant's heads of argument which he augmented with brief oral submissions. In addressing the first ground of appeal, the Appellant attacks the learned Judge's recasting of the legal issues which were presented by the parties to the court below for determination. That in doing so, the learned Judge ignored what was pleaded by the parties. 6.2 It was submitted that the parties had through the statement of agreed facts and legal issues to be determined by the court, agreed on the issues to be determined. That notwithstanding, the court below recast the issues for determination and as such went beyond the issues in dispute between the parties. Our attention was drawn to the case of Atlantic Bakery Limited v Zesco Limited4 , where the Court held that: -J 24- "A court is not to decide an issue which has not been pleaded. Put differently, a court should confine its decision to the questions raised in the pleadings. It cannot thus not grant relief which is not claimed. Litigation is for the parties not for the court. The court has no business extending or expanding the boundaries of litigation beyond the scope defined by the parties in their pleadings. In other words, the court has no jurisdiction to set up a different or new case for the parties." 6. 3 Reliance was also placed on the case of Richard H. Chama & 213 Others v National Pension Scheme Authority & Others5 , where it was stated as follows: "We express our disapproval with the approach adopted by the lower court Judge in this case. The parties had structured for themselves the agreed facts and issues for the determination of the court, never mind that such a course was taken at the behest of the Judge himself. Among the facts agreed by all the parties was that the scheme subsisting -J 25- between them was a defined benefit scheme. The learned Judge chose to alter the agreed facts by literally disputing what all the parties stated through their pleading. He substituted his own construction of what the facts ought to have been, not because of any factual evidence laid before him, but from his own assumptions ... We must add for good measure, that in our adversarial system, a Judge is required and is indeed obliged to decide cases on the evidence presented in court by the parties. If Judges apply their own knowledge or personal perceptions not informed by the evidence presented to them, they may deprive the parties of the opportunity to address such information and perceptions with evidence and submissions." 6.4 It was further submitted that the central issue for determination by the court, inter alia, was whether the Appellant was entitled to specific performance of the contract, resulting from the Respondent's breach of the -J 26- contract. That however, the court ignored that and instead questioned the substance of the contract itself as to whether it had fundamental terms and whether the Appellant had committed a repudiatory breach of contract. That as a result, the court determined an issue which was not raised by the parties and which the parties were not afforded an opportunity to address the court on. 6.5 On the issue of the forfeiture of K300 ,000.00, it was submitted that the finding was perverse and contrary to the pleadings as the Respondent did not seek the relief. 6.6 In respect to the second ground, it was submitted that t erms of an agreement may be varied by a subsequent agreement, whether oral or written, which has the effect of changing or altering the terms of the initial agreement. That for the variation to be effective, the new terms must be mutually agreed upon by the parties to the initial agreement. That therefore , a party to such an agreement cannot unilaterally alter the terms of an agreement to effect a binding variation. -J 27- 6.7 It was submitted that in the statement of agreed facts and legal issues to be determined by the court in paragraphs (5) and (6) , the parties intended and did in fact vary the terms of the Contract in relation to how the Appellant_ was to pay the instalments of KS00,000.00 , while the rest of the terms remained unchanged. 6.8 According to the Appellant, despite the overwhelming evidence and mutual understanding between the parties to vary the terms of the agreement, the court below held that the Contract was not validly varied. It was submitted that the court misconstrued the evidence on record and ignored the clear intention of the parties. 6. 9 The third and fourth grounds were argued together. It was the Appellant's contention that the court below misconstrued the terms of the Contract by holding that vacant possession was premised on the Appellant paying the Respondent KS00,000.00 as deposit. Our attention was drawn to clauses 6 (a) (b) and (c) of the Contract as well as clause 7 and submitted that; it was clear that the parties agreed that the Respondent was to give vacant possession of the Property on signing and -J 28- exchange of Contracts after a deposit of KS00,000.00 had been paid. That the parties later varied the terms of the Contract as confirmed by the text messages. 6 . 10 The Appellant further contended that, clause (7) of the Contract required the Respondent to yield vacant possession of the Property upon signing of the Contract. It was submitted that by the court holding that the Contract was not varied, the court was in effect rewriting the agreement between the parties. 6. 11 On the issue of whether specific performance should have been granted, it was submitted that, the parties were bound by Clause 7 of the Contract and hence vacant possession of the Property should have been given to the Appellant one month from the date of signing and exchange of Contracts and that the Respondent was therefore in breach of the Contract by refusing to hand over possession. 6.12 According to the Appellant, the evidence on record shows that it was the Respondent who breached the Contract by refusing to hand over possession, despite the Appellant paying the agreed deposit of K300 ,000.00, -J 29- in accordance with clause 6 (a) of the Contract. It was submitted that the agreement being a contract for the sale of land, the court ought to have granted the Appellant specific performance in accordance with the case of Gideon Mundanda v Timothy Mulwani & Others6 . 6.13 As regards the fifth ground, the Appellant seeks to assail the order directing the forfeiture of th e sum of K300 ,000.00 , that the Appellant had paid. It was submitted that the issue of a refund and forfeiture only arose in the Judgment as neither of the parties pleaded the same for determination. According to the Appellant, the relief it is seeking is specific performance and not a refund of the deposit paid. That in fact the lower court made a determination on an issue which neither party submitted on. 7.0 RESPONDENT'S ARGUMENTS IN OPPOSITION 7. 1 Equally Mrs Musa at the hearing relied on the Respondent's heads of argument and augmented the same with brief oral submissions. In r esponse to the first ground , the Respondent acknowledged that the -J 30- learned Judge recast the issues by integrating some of the identified issues. The Respondent also referred to the statement by the Supreme Court in the case of Richard H. Chama & 213 Others supra and submitted that the recasting was done in order to determine all issues in dispute, so as to bring the matter to finality. According to the Respondent, the court was guided by the pleadings, submissions and the evidence on record when it recast the issues for determination. 7.2 As regards the second ground , it was submitted that, there was no valid variation of the Contract. It was conten ded that, although the parties through discussions reached an agreement to vary the Contract, their intention was to have the terms agreed upon to be reduced into writing through an Addendum. That the Addendum having not been signed by th e Respondent, the Contract was not validly varied. 7.3 It was also submitted that there was no consideration as the Appellant did not give or offer any benefit that would amount to consideration to the Respondent, which would amount to variation. According to the -J 31- Respondent, the K300,000.00 which was paid, was part of the agreed deposit of KS00,000.00. That as such it cannot be held as consideration for the variation. 7.4 In response to the third ground, it was submitted that the court below was on firm ground when it held that the obligation to give vacant possession was to arise a month after signing of the Contract, provided that the I Appellant paid the deposit of KS00,000.00, upon signing and exchange of contracts. It was submitted that the intention of the parties in accordance with clause 6 (a) as read with clause 7 of the Contract, was that vacant possession would be given upon signing and payment of a deposit of KS00,000 .00. 7.5 It was the Respondent's submission that the payment of KS00,000.00, was a fundamental term which went to the root of the Contract. That it was a term which was critical to invoke the obligation on the Respondent to yield vacant possession. That the Appellant did not comply with the term of payment of KS00,000.00 and therefore breached the fundamental term as was correctly determined by the court below. Reliance in -J 32- that respect was placed on the case of Millichamp v Jones7 where it was held that: "A requirement in a contract for sale that a deposit be paid by the purchaser was a fundamental term of the contract." 7 .6 The Respondent further submitted that the breach having originated from the Appellant, the Respondent had no obligation to yield vacant possession. 7. 7 In response to the fourth ground, it was submitted that, having established that the Appellant breached the contract, th ere was no obligation on the part of th e Respondent to yield vacant possession. That as such there was no basis upon which the Appellant could ' claim specific performance. 7 .8 As regards the fifth ground, it was submitted that, the court has power to introduce a relief or remedy that was not pleaded by either party if there was evidence on record that speaks to such a remedy or relief. Our attention was drawn to the case of Savenda Management Services v Stanbic Bank Zambia -J 33- Limited8 on the invocation of Section 13 of The High Court Act. 7. 9 Reference was also made to the case of Zambia Electricity Supply Corporation Limited v Redlines Haulage Limited9 , where the Supreme Court held that: "Failure to object to the admission of evidence of issues which were not pleaded may lead to consideration of such evidence." 7 . 10 It was submitted that, the Respondent testified before the court as to the reason why she did not refund the sum of K300,00.00 , being the notice to rectify dated 12 th June 2020; which was made pursuant to clause 22 (c) of The LAZ General Conditions. The Appellant was therein notified that failure to rectify the breach would lead to forfeiture of the part deposit. 7 . 11 That in order to amply determine all the issues in the matter, the court was able to direct its mind to this aspect as guided by the fact that the Contract was rightly governed by the LAZ General Conditions. -J 34- 8.0 ANALYSIS AND DECISION OF THE COURT 8.1 After considering the Judgment being impugned, the I grounds of appeal and the arguments by the parties, we will accordingly consider the first ground of appeal, whose outcome will determine how we shall deal with the other four grounds. 8.2 The first ground attacks the learned Judge's recasting of the legal issues for determination presented to the court by the parties. According to the Appellant, in doing so, · the learned Judge ignored what was pleaded by the parties and as a result made pronouncements on matters not presented before the court. 8.3 The Concise Oxford English Dictionary3 defines the word recast as: "1. Cast again or differently 2. Present in a different form or style." 8.4 Recasting legal issues for determination involves reframing or rephrasing legal issues to clarify the key issues and facilitate a more effective determination of the resolution. The process is beneficial as it assists the court to focus on the most critical aspects of the case. -J 35- In contract disputes like 1n this case, recasting contractual issues aids the court in identifying the core disputes and potential areas for resolution. 8.5 Although the parties had presented agreed facts and legal issues for determination, the learned Judge was still at liberty to exercise her discretion to recast issues, in ensuring that the relevant issues in respect to the case and_ the applicable law are addressed. A Judge the ref ore is allowed to recast agreed legal issues for determination to ensure clarity, relevancy and accuracy, so that they are properly framed for determination and in the process focus on the most relevant and critical aspects of the case. 8.6 It should however be noted that the exercise of the court's discretion is limited. The Judge should generally respect the parties autonomy to define issues and present their case and should therefore not recast issues in a way that fundamentally changes the nature of the dispute. The Judge must adhere to procedural rules and ensure that any recasting complies with the -J 36- rules and does not prejudice either party or compromise procedural fairness. 8. 7 A perusal of the agreed issues for determination, appearing at page 135-137 of the record of appeal (the record), shows that in seeking a resolution as to whether the Appellant was entitled to specific performance of the Contract, the parties fronted fourteen ( 14) legal issues for determination by the court. It is evident that the issues to be resolved all revolve around the Contract. They are however repetitive and duplicated and could have been presented in a more efficient and accurate manner. The presentation of the issues in our view, is what prompted the learned Judge in recasting the same. 8 .8 The recasting of the legal issues did not depart from the nature of'the contractual dispute which was before the court. Neither did it depart from the pleadings. If anything, it assisted the court in efficiently determining the key questions in dispute arising from the Contract. It also ensured that the court's decision was based on a clear and accurate understanding of the law and facts. -J 37- 8.9 A careful examination of the Judgment and the framed legal issues for determination reveals that all the issues fronted by the parties were addressed and determined in the court's Judgment. The cases of Atlantic Bakery and Rich'ard H. Chama & 213 Others relied upon by the Appellant, speaks to departure from the pleadings and not recasting of agreed legal issues for determination. They are therefore distinguishable from this case. Agreed statement of facts or agreed legal issues for determination are not pleadings and are therefore not necessarily binding on the Judge. The Judge has the discretion to review and evaluate the agreed legal issues for determination. 8.10 In the view that we have taken, there was nothing wrong with the manner in which the learned Judge recast the agreed legal issues for determination. In that respect, the first ground has no merit and we will proceed to address the remaining four grounds concurrently. 8.11 The second ground attacks the finding by the learned Judge that the Contract had not been varied. The -J 38- evidence before the court shows that at the time of signing and exchange of Contracts, the agreed deposit of KS00,000.00 , as contained under clause 6 (a) of the Contract, being 50% of the purchase price was not paid. It is evident that because of that failure by the Appellant, the parties engaged into negotiations on how that deposit was to be settled. This is evident from the text messages appearing at page 73 of the record. The parties agreed that the Appellant would pay the sum of K300,000 .00 on 18th March 2020 (which was paid) , Kl00 ,000.00 on 30th April 2020 and the balance of Kl00 ,000.00, on 30th May 2020 (the two amounts were not paid). 8.12 The Respondent 1n paragraph 6 (a) of her defence admitted that the Contract was amended pursuant to the text messages, whereas the other terms of the Contract remained the same. In addition, the parties in their statement of agreed facts under paragraph 6 , agreed that the Contract was amended pursuant to the text messages and it was in that respect that the -J 39- payment of K300,000.00 was paid and accepted by the Respondent. 8.13 In view of the aforestated, we are of the view that the finding by the learned Judge that the Contract was not varied was perverse and ought to be set aside and be substituted with the holding that the Contract was varied only to the extent of payment of the deposit in instalments instead of a lump sum. That addresses paragraphs 1,2,3,4 and 8 of the agreed legal issues for determination. To that extent ground two succeeds. 8.14 In respect to the third ground, the allegation by the Appellant was that the learned Judge misconstrued the terms of the Contract when she held that the yielding of vacant possession was premised on the Appellant paying K500,000.00. It is evident from a reading of clause 6 of the Contract, that apart from the signing of the Contract, there was to be exchange of contracts. The exchange, of Contracts entailed the payment of the deposit of K500,000.00 which was not paid on the signing of the Contract. -J 40- 8.15 The exchange of contracts is a crucial milestone in the property buying process, making the point at which both parties become legally committed to the transaction. Typically, the buyer pays a deposit upon exchange of Contracts. Although clause 6 (a) of the Contract was varied, the Appellant has never paid the deposit of KS00,000.00, having only made a part payment , of K300,000.00. In the absence of any variation to clause 7 of the Contract, there is no evidence to support the averment by the Appellant that clause 7 of the Contract was to come into effect on payment of the initial instalment of K300,000 .00. We see no basis on which to fault the learned Judge, as by failing to pay the deposit, the appellant breached the Contract. That addresses paragraphs 5 and 10 of the agreed legal issues for determination. I 8. 16 The fourth ground attacks the holding by the learned Judge that the Appellant was not entitled to an Order for specific performance. The holding was made by the learned Judge after making a finding that the Appellant committed a repudiatory breach and that the -J 41- Respondent validly terminated the Contract. Having confirmed that the Appellant breached the Contract by failure to pay the full KS00,000.00 deposit, we find no basis on which to fault the learned Judge. The learned Judge was correctly persuaded by the Fibrosa Societe Anonyme case. That addresses paragraph 6 of the agreed legal issues for determination. 8.17 In ground five, the Appellant alleges that the learned Judge by considering the contention surrounding the refund of K300, 000. 00, determined an issue which was not submitted by either party for determination. In making the determination, the learned Judge was of the view that resolving of the issue was dependant on whether the Contract was governed by The LAZ General Conditions. 8 . 18 After considering the cover page of the Contract, the learned Judge made a finding that the parties intended to be bound by the LAZ General Conditions. The learned Judge then went on to state at page J25 , (page 35 of the record) as follows: -J 42- "Bearing in mind that the Contract of 19th February 2020, did not address the issue of the refund upon default, I see no barrier to my implying clause 22 (c) of The LAZ General Conditions of Sale 2018 into the Contract. This is because it will not create any inconsistency. This means by the imp lied term, the plaintiff forfeited the deposit paid to the defendant on account of the plaintifjs failure to comply with the notice to rectify its fundamental breach." 8.19 We are compelled to state that we are startled by this ground of appeal and the accompanying arguments by the Appellant. This is in view of the fact that, it is not in dispute and its in fact in the pleadings and in the evidence that the sum of K300 ,000.00 was paid as the first instalment payment towards the deposit of KS00 ,000.00. 8 .20 We note that paragraphs 9, 12 and 13 of the agreed legal issues for determination raised the issue of whether the Contract was governed by the LAZ General Conditions. I -J 43- To begin with, we agree that the Contract was govern ed by the LAZ General Conditions. The LAZ General Conditions serve as a standard framework for Contracts for sale of land in Zambia. Unless they are explicitly excluded or modified by special conditions in the contract, they will govern the contractual relationship between the vendor and purchaser; if they are incorporated into the Contract by reference as was indicated on the cover page of the contract as "Law Association of Zambia contract and conditions of sale relating to the proposed subdivision at Stand No. 3054 /M, Foxdale, New Chamba Valley, Lusaka. The first page is also referenced "Law Association of Zambia Contract and Conditions of Sale." We note that when the Respondent referenced clause 22 (c) of The LAZ General Conditions, there was no objection by the Appellant, as indicated in the letter of 24th June 2020, from their lawyers in response to the Respondent's notice to rectify. 8.21 To fortify our opinion, the Appellant also in their notice to rectify to the Respondent, dated 17th September -J 44- 2020, appearing at pages 71-72 of the record referenced the notice as "Notice to rectify default pursuant to clause 22 (a) of The Law Association of Zambia General Conditions of Sale 2018." This means that the Property was subject to The LAZ General Conditions, so far as the same were not inconsistent with or varied by the special conditions in the Contract. 8.22 In view of the aforestated, we see nothing wrong with the learned Judges determination of the matter consequently on the refund, in order to address all the issues in finality. This addresses paragraphs 9, 11, 12, 13 and 14 of the agreed legal issues for determination. 8.23 This appeal has substantially failed and is accordingly taxed in default of ag J . CHASHI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE ~ A. M. BANDA-BOBO COURT OF APPEAL JUDGE