Ndili v Mapulanga and Stanbic Bank (Z) Limited (HP 2122 of 1994) [2016] ZMHC 170 (2 September 2016)

•/ .. Jf :tN THE HIGH COURT FOR ZAMBIA;uRT OF z~1994/HP/2122 I , :' AT THE PRINCIPAL REGISTRY>,\C,Y>~ e,.; HOLDEN AT LUSAKA (Civil Jurisdiction) . PRINCIPAL BETWEEN: JOHN CANISIUS NOILI PLAINTIFF AND AARON BRISBANE SIANGOMA MAPULANGA 1ST DEFENDANT STANBIC BANK (Z) LIMITED 2ND DEFENDANT Before the Hon. Mrs. Justice J. Z. Mulongoti in Open Court on the 2nd day of September, 2016. For the Plaintiff Mr. H. Silweya of Messrs Silweya & Company For the 1st Defendant: Mr. L. M. Mwanabo of L. M. Chambers For the 2nd Defendant: Mr. M. Chiteba of Messrs Mulenga, Mundashi Kasonde & Company JUDGMENT Cases referred to: 1. Foley v. Classique Coaches Ltd(1934) 2KB 1 2. Spiros Konidaris v. Ramlal Kanji Dandiker SCZ Apeal No. 157 of 1999 3. Sithole v. State Lotteries Board of Zambia Ltd (1975) ZR 106 4. Colgate Palmolive (Z) Inc. v. Able Shemu Chuuka & 110 Other SCZ Appeal No. 1810f2005 5. Musialela v. Chipman (2010jHPCj0256 (unreported) 6. Anti - Corruption Commission v. Barnet Development Corporation Limited (2008) ZR 69 Vol. 1 7. Stanbic Bank Zambia Limited v. Witola Mbuchi & John Fidelis Kabwiri (2010 j HPCj 565) unreported 8. Mulungushi v. Catherine Bwale Mizi Chomba (2004) ZR 96 9. David Howes and Others v. Betty Butts Carbin (sued in her capacity as Trustee of the Estate of the late Daisy Butts) (2012) ZR 239 Vol. 1 Legislation referred to: 1. Lands & Deeds Registry Act, Chapter 185 of the Laws of Zambia Jl ,I • • \ , By writ of summons dated 29th June, 1994 the plaintiff is seeking an order of specific performance of the contract of sale dated 30th December, 1988 of 214 acres out of 614 acres of farm number 3792 chibwe, Kabwe. In the statement of claim, the plaintiff alleged that sometime in or about 30th December, 1988 he agreed to sale the defendant an unmarked off portion of the land being 214 hectares of farm 3792. By clause 3 of the agreement, the plaintiff was to retain 400 hectares (acres) of the total area of 614.8955 hectares. That the plaintiff did not agree to sale the whole of his farm to the defendant. The plaintiff averred that at the time of the said agreement, the property was mortgaged to Lima Bank Zambia Ltd. That to the date he sued, he had never known the mortgage redemption fee from Lima Bank or from anybody at all nor had he ever agreed with the defendant or any other person, any price of the unsurveyed and unmarked off portion or any price at all in respect of either the portion or the whole of farm number 3792 Kabwe. Furthermore, that he has never received nor acknowledged receipt of money or consideration for either the portion or the whole of the said farm. J2 , I • The plaintiff further alleged that he was surprised to learn that his whole farm had been fraudulently transferred to the first defendant. The particulars of fraud and forgery were that: "(il Deed of Transfer - the title deed was exclusively drawn by the defendant. The plaintiff did not sign it. (ii) The deed is inappropriate and was for passing title to the defendant. It was not drawn by a professional conveyance. (iii) Consideration omitted from the - This was transfer deliberately resorted to by the defendant after he had realised that he had not agreed with the plaintiff on any fixed purchase price or any at all. The transaction between the plaintiff and defendant was not a gift but a sale where consideration must always be stated. (iv) The transfer was registered with the aid and collusion of Both the some officials from the Lands department. plaintiffs and defendant's signatures were witnessed by the same witness which was unusual. (v) The defendant targeted the plaintiffs signature because he always had a sample of it on the contract dated 30th December, 1988". Thus, the plaintiffs claim IS for an order of specific performance of the contract or alternatively, an order of declaration of no sale on account of fraud or an order of rectification of the register at the Lands and Deeds Registry to reflect the results of an order of specific performance or declaration of fraud, permanent injunction restraining the ..f tlefendant from evicting and or trespassing onto the plaintiffs property. Such other orders deemed fit by court and costs. The first defendant filed a defence. He averred that at no time had he caused interruptions and or disturbances to the plaintiffs peaceable enjoyment of possession of the farm. He further averred that the plaintiff in his offer letter dated 28th December, 1988 agreed to sale the whole farm number 3792 Kabwe. That the plaintiff had agreed to instruct valuation of the farm but did not have money to do so. The same was paid by the first defendant and the farm was valued at K25,OOO. OO. The parties even agreed to transfer the property after redemption of the mortgage with Lima Bank in the sum of K159,164.42. The deed of transfer was executed by the plaintiff willingly and knowingly. The first defendant further averred that the consideration was constituted by him discharging the indebtedness of the plaintiff to Lima Bank Limited. J4 , , The second defendant filed a defence and counterclaim. It averred that the second defendant created and registered a mortgage over property number F/3792 whose extent 614.8955 hectares m consideration of a loan IS of K320,000. OO to the first defendant. The property was registered in the first defendant's name under certificate of title number L.502. At the time the property was free of encumbrances. It averred further that a further charge was created on the same property in consideration of a further advance of K1,180,000.00 to the first defendant and another further advance to him of K350,000.00. The first defendant defaulted and is currently indebted to the second defendant in the sum of Kl12,258,835.34. Thus, the second defendant is entitled to possession of the mortgaged property on account of the said default. The second defendant therefore claims the following reliefs from the plaintiff (i) Payment of the sum of Kl12,258,835.34 owed to it by the first defendant (ii) An order of foreclosure/sale of F/3792 Kapiri Mposhi, interest and costs. At the trial all parties adduced oral evidence. J5 . , • The plaintiff testified that he bought the farm number 3792 from Tobacco Board of Zambia in 1974. A certificate of title was issued to him. He had surrendered his certificate of title to the Tobacco Board for safekeeping then later to the Commissioner of Lands. He drew the Court's attention to page 34 of the plaintiffs bundle of pleadings and read aloud thc line marked xx. He said it was a certificate of official seRrch which showed that on 11th November, 1988, Tobacco Board of Zambia issued to him a certificate of title for farm number 3792. The certificate of title was now with the first defendant. He disclosed that the first defendant who was his tenant approached him sometime in October, 1988 and asked for 10 hectares to plant maize. A month later the first defendant asked him to sale him the 10 hectares [mt he refused. Then the first defendant took some documents for him to sign in the night around 19:00hours. He asked the first defendant to leave them behind so he could sign later but the latter refused. He signed in the night because the first defendant told him that he needed them for security for a loan. He referred the Court to page 19 of his bundle of pleadings and indentified the contrClctof sale which he signed in the night. J6 , " • It was the plaintiff's further testimony that though he signed there was no sale as there was no pnce. He emphasised that he never agreed to sale the whole or part of the farm. The first defendant took advantage of him and wanted tr) trick Grindlays Bank to give him a loan to buy two trucks. He went on to state that later the first defendCll went back to him and asked to borrow the certificCltc of title. He told him it was with the Tobacco Board 0 f 1::1 mbia. Then he was later detained for three days Clner the first defendant complained to police that he was 8 s'lWl1ter on his land. After his release he lodged a complaint with the Commissioner of Lands that the first defendant harl changed his certificate of title into his name. He was advised to lodge a caveat to stop the first defendant from mor[:r;l<[~ingthe farm to the Bank and to stop him from evicting him. I-Ielater instituted these proceedings. When crnss examined, he testified that he bought the farm in early 1Q74. However, when referred to paragraph 4 of the sla "111('ntof claim he conceded that it stated that he bought the farm in 1988. J7 . , He insisted that he bought it in 1974 though he had no proof. He denied the assertion that he gave his certificate of title to the Tobacco Board of Zambia as security. When further cra~s examined he admitted that he did. However. hr; declined mortgaging his farm to Lima Bank. He reiterated that he never offered to sale the farm to the first defellrl~mt. When shown the letter at page 1 of the first defendant's bundle of documents captioned 'letter of offer' - he ad mitted that he authored it and that he was writing 10 the first defendant, offering him to buy his farm number 1792. He added that the first defendant forced him a ~ i!TIlth e letter. When referred to page 1 of his bundle or e!r)C. IJTIcntswhich is a letter from Lima Bank to him se 1f rc+ rri 11g to a loan he should have liquidated by 30th September, 1988, he insisted that he never owed any manev If) Lima Bank and never got any loan from them. He C"llccr1ec!that he did not write Lima Bank to dispute this jeHu. Under fllr: her cross examination, he reiterated that he signee! the con tract of sale at 19:00hours when there was no power ;ll the farm because the first defendant wanted to get a la:lIl. J t was his testimony that the deed of transfer J8 'was no!. in line with the contract of sale. He conceded that he c1id J1')/ have a document to show that he surrendered his ccrtii'ic;l!. Cof title to Tobacco Board of Zambia and not Lima B;1I11<. He reiterated that he signed the contract at nigh!. hv d I I re~,s or trick. When referred to the plaintiffs bundle of pic,lc1ings page 4 paragraph B(i) of the statement OfC!;:lim,111' c1c1mittec1that it referred to sale of214 hectares but 3f dec] !.h'lt there was no agreement for sale of 214 hectnrcs or for the whole farm. When rde ITf'r! to the letter at page 41 of the first defendn l['S hundle of documents, which was written by the plaintiff's C(lllllse! to the first defendant, the plaintiff testificd lh;1t he was aware of the letter but was not aware that thc f';",1.defendant obtained the certificate of title with his COIY(' '" Whcn further j cross examined, he testified tha t I j(' \";1Il(S h is whole farm back because the first defcnh1l did no!. give him anything. He admitted being the ;1'1111(," of he letter at page 37 of the first defendant's bunc!'" n' )CIHYlCntscaptioned "notice to vacate the farm" and t '1')L i I \\"1 S ;1 response to the first defendant's letter over I i,,' s;lIJ'e subject. He said he was challenging or foolin" I 11(' firs!. dcrendant when he wrote that he would vaC<ll(~t i ']('; ISC;mel asked the 1st defendant to build him a hOI; ~('( 1 Ii,(' "I ()O acre area, because the whole farm was J9 'his. Ilc furt.her testified that he lodged a caveat on the whole felrlll (0 ILj. 985 acres) in 1994. When referred to the caveat, he ,lc!lllittec! that it covered the 400 acres. When referred 10 page 4 of the 1st defendant's bundle of doculll('n1 "'. he ;:)(mittcd that Lima Bank put a caveat on the land wh jr.h wns withdrawn on 28th March, 1988. He also cldlllil.lr:d (hnt the land was valued by a valuer who was ulkcll to (he farm hy the first defendant. When rl'-(''''lillincci, he testified that he paid back all the dehts IV' ()1',I('c! t. lC first defendant and that those debts had nothintr 10 '10 with the land. He also testified that the letter authored by Ilis lawyer to the first defendant was not conciu"';v". \1/h"1l referred to the plaintiff's bundle of pleeHlintrs ,1\ j':WC '11 paragraph 5 of the statement of claim, he '("1n,lt("! (11;]1. he did not sign any deed of transfer or aSSii'1111l"1l1. Whcn referred to page 30 he testified that it is a ccrtir; -,de (,r title in the name of the first defendant but adcicd 1 1;\1\1" die! 11'ltsale his land to him. The!I '" lS file ( ,';rknee on behalf of the plaintiff. The fir~1 (lcfcll'l;11l1Aaron Brisbane Siangoma, 68, testified that 011 or ;li)()ul 30lh December, 1988, the plaintiff apprr)'l"il"(' hi'll with the intention of selling his farm. He 'requcs1f'd him Lo puL Lhe intention in writing. The plaintiff did so by JcUer daLed 28th December, 1988 which is at page 1 of the firsL defendant's bundle of documents. He read aloud Lhe IclLer of offer. It was his testimony that after a few rl:lVS lC j]"C j8red his letter of acceptance and con(liLiolls r];1(I:cl,::',()th December, 1988, appearing at page 2 of 11is humllc I,f documents. Later, he asked the plaintiff for th c v;1II IC !) f L11'~f;1rm and also for Lima Bank to confirm how much he should pny. The plaintiff told him there were fonls In I}e sir~ne(~. On 3rd January, 1989, the two of them went. Lo Lim;1 8:111k, Knbwe, where he paid the total of the plainLifr's illcl('btr~(ness to the Bank. He was issued receipL \"hieh he 100k to the Bank's headquarters a in Lusn ,'1. Th" cavcC1l placed by the Bank was then withdr:l\\'n. The court heard thn1. the farm was valued by Mwitumwa and /\ss')ci 'I cs :1t 1<25,000.00. The amount of the vahl;'1 j,,'1 \\'dS even confirmed by Lima Bank. Lima Bank also COI1I,l !lll';c.!the alllount the plaintiff was owing on the loan. Th(' ;lllOlillt wns K153,213.76 as shown by the dOCUllll'"I 'll;lr\.;cr] "111". He paid Lima Bank over K150 on( . ) I. The plninLiff also showed him the certificate of Iii' ;'! ,'\ C')ll\'(~rsi()n of title which they both signed togcthe - \ViLh lilt' con lr8et of sale which was witnessed by J11 ,the r ;1I1k~lrlll,Ji~Cr. He drew the Court's attention to page 3 of thc first defendant's bundle of documents and identified the; contract of sale which was witnessed by the Bank 1-1aIl'lgCr. He also identified the transfer documents at pnnes S to 14 eluly signed by the plaintiff and himself. He fl r her 1 (',:;( ifi~d hat after that he applied for state eonsI'll I , /\t (he ti lle, the plaintiff's title deed was with the Tobacco !'p:lrd 88 he was their tenant first and later he was sold the farm at I( 12,000.00. He disclosed that he even w,llv oht :liIlCr! t itIe in his name. He identified his certii'ic;ltc of title elated 8th February, 1989 at pages 30 to 33 of (he r;"st ddclld,lnt's bundle of documents. He further ,1 rl ('I' rr';liling ;1loud clause 3 of the contract of sale; testi ri( rl that ;If(rrlw plain1 ilTlost the farm, the two of them agreed thai II(' "10\tld '1;1\'(' ;1CU'SS to 400 acres, not that he owned the !JO(I,l( '("" '1'11(;rci,ltionship between them became sour and fill' I~]'intilT Ih('n sllcd over the 400 acres. He p'il(' ';1\cr! I', 1'. the f:lrm was his. The plaintiff sold it to him ,'I' I 1" ('()ulr! Ilo( l1ave bought it without Lima Bank's invni\'('lll 'I'. I illl;] 13<1111<: even wrote to the plaintiff telling him L1wL iLhaC! con Lae(ed him (first defendant) and that he had Il' Ill" I' 1),IVllll'llt then. He denied tricking the plain" ," contract of sale. It was his J12 ,testim"ll I 111;)lIh: plaintiff who was still m occupation of the rarlll lite! ;liluwecl :~quatters who are paying him and have \';111(I'liiseclt.he rarm. Durin!~ eross eX8mination, he testified that he was not awnr" tll;'1 Ille I'];lintirr paid Lima Bank KI53,213.79 after it e '("lIl,,(1 Oil him, Vhen referred to page 11 of the plainlirrs bundle or documents he stated that the letter was written bv Ihe 8nnk before he paid, to advise the plaintiff thal 11(' lei":,1 cld{'ncl;lnt) had not paid. That this was becnuse the pl;Jintirr h8d told the Bank that the first defencl;lnt h;ld t.o pny and he (plaintiff) was about to be evicted, lie pknclccl with him to pay and they went togr~lll('r 1'1 the 13;lnk II) pay, He reiterated that he paid the plain'il"<; ,'('bl to Ill' f3:lnk as per receipts in the bundle of ple;1CI'l'" A Pe]VC 20 ror KI00,OOO. OO and page 21 for K59,ln'1.9?, The toal being KI59,164.92. He further tesiif ', ( Ih:;' ti"is \1';':; the consideration for the farm. He conc" I(,i ':"11 11)('cunlr:let did not state the price. When refer "(I tl' lil" (ked ai' transfer at page 28 of the first deren'!'II]j'" bl'nr11c or documents, he admitted that the amOllllt. (,I' i,:~'I,I()Ll,92 is not stated. He said the value was I":=), loo.on. II" crmceded that he did not take the doell 'lIt in; !illis(I'Y 1'1' Lands to record the price. When asked 'I; In 11')\ I he Fat. the certificate of title without the J13 'dee( oi rl("liin~~ and no stamp duty, he testified that the plain tifTapplied for consent and as vendor was supposed to pa st ,1In11ell! Ly. Whe 1 i\l 'lhn cross e,'amined, he admitted that he paid Kl~9.1 ()/1.9? \"hi(~h was more than the K153,213.76 the pIa' n 1 ifTow('d Lima Ban k. He denied taking the documents at night ;mel forcing the plaintiff to sign. He conceded that he used tIl" cerl ificatc of title to borrow. He denied that at the tim" lv' locl,yccl the assignment the plaintiff had already put ill ;1 c;'ve;d. lie insisted that his certificate of title was earli"r th 'll he; Ulvcat <:Ind that the contract of sale was earlier 11PIl Ill(' rr;rtificclle of title. He rr~ilfT;llecl lh;:d \\.hell the plaintiff made the offer, he said he h I I 1l r "., jr re logo and requested that he be allowed to take I'()s"'''ssif) 1 or 4 n() ;Jeres, which was done. He said the contract " sale f is at page 3 of the defendant's bundle of dOclllllf'nl'. I'" testiried that there was no contract for the sulyii"isif)'l tf) repnssess 400 acres because possession is diffci "111 r 'Jill owncrship. And that he did not tell the plain ifl if) suhrli\'irle acres and there was no subdi\'isin'l bcf'nrc his certificate of title. He later allowed the I",in i I I" sl!l)lli"irlc 400 acres but the plaintiff later Chrll" ('" I' I linci ~lncl refused to vacate the farm. J14 UncleI' fur her cross e 'amination, he testified that the plain iff's ktler of offer :0 him stated that the price was the balan(;e of' the 10nn from Lima Bank. He received his cerlificnLe of tit1c through Lima Bank but never collected the plaintiff's old .itk deed. When cross examined by the seCOIl( ddenr1,lllt's cOlmsel, the first defendant admitted that he w~s the registered title holder of the farm. He also agreed th;ll he gnt a loan from Grindlays Bank the preclc(;essnr of Stan bie B,1J1k to pay for the property. He further ;l<1llli t c1that the loan was not completely paid off. When re-r;x;lminec! he testified that he paid the plaintiff throll~h Lima Bank. That the subdivision had no time table for vhen it cOlild be clone. He said it was not true that p;:)rtir ~ <1greecl to subdivide before he got his certificate of tilk. Th<1t \"<1Stile evidence on behalf of the first defendant. The .;;r;cnJld defendant called its manager Specialised Reeo Tries. 1r. J\euben Matale Malindi to testify. It was his testimollv ~ that in 1989 the second defendant applied fill' ;:) 1'J81l from the second defendant which was thell !-:Jl()\vll ;lS Crinc11a_'s Bank. His application J15 for the sum 01' ,2nr),ono,oo \'!;lS pp1ll1cd and it was secured by a legal mortWlge mer the rarm in question number 3792, Kapiri Mposhi, The 13;111 k conducted a search at Ministry Lands nlld di~,covercc1 no encumbrances, When referred of to pai'" 7 "rill(' second defendant's bundle of documents which i<:.:;1 l;lIlc1s print out, he testified that the first entry was clnl.ed ()Ih J,llltlnry, 1990 and is a withdrawal of caveat by t1w pl;l; 11i rr, He rIll" he:- lr'slirier1 l.hal. in May, 1991 the second advance was UI\I(' I' l.o 1he rir~~. defendant m the sum of K 1,1 RO,()()(),()() (unrebased), A further charge was regislerC( Oil l.he same property, In 1993, the first ddcIl'l"n (1111;ljlJ('rj a rllrl.her advance of K350,OOO. OO sCClIl"rll,\';} second rurthcr charge on the property. This was rr<Yj<:.:lrl-r'riill ivl;lrch, 1993. The status was that the sum or \' I 1) ,onO,OOO,no (linrebased) plus interest is still due LlS<11. Ill(' rI;llr: Ihc :,(:cold defendant filed its defence. He r(' II ('I"" 'cd l.h nih c Gem k did due diligence pnor to lencli, if" l h(~ rir';l ri"i'clldant and the searches at lands did not revr:;11111'1'111': rirsl r!r'l"cndant obtained title by fraud. J16 He further testified that the Bank attempted to sale the first defenci;lIl t's portion to recover its money but the plaintill ane! first defendant had a dispute leading to this case. \ fhen referred to the letter at page 18 of the plain! ill'" 1)1 ldl(~ of documents, from the Bank to the plainlilTs C' 111iS~1cI;1Ir~cI18th July, 2001, he testified that the (".tent. r)f ];lIld the ]);111k was willing to cede to the plaintill \v;1S 'Ion ;1C'es ns per agreement. However, that the iss! Ir~\'''1~~lV~rer resolved because the dispute was now whdh'T it \\' '" (l()O ;1crCS ('r /j00 hectares. When (Tn,,'; c:'''lminecl by the plaintiffs counsel he testified th<lL prior I () r('()i~>lr;ltion of the mortgage, the Bank had no cont;1f L' ilh 1111' j);linlill' ns he was not the owner then and not the ;\ppllcdnt of thc mortgage, It \\';. IS hi; 1"stiJ1\onv thaL Ihe caveat was withdrawn on 9th Jallil ]' (), \\+'Ie 11C mortgage was registered on 7th Nov" ! I" ",' I) \'11C'l I'('ferred to page 34, he testified th,lt 'hc r'ir~.;tc!dcne!;lI1 's certificate of title was issued in FehrI18"'. ()h() ;111rl Ihlls cnrlier than the withdrawal of the cavc;,!, II,' ('r)llcerir'cI Ih;lt if a subdivision was done, the BnnV' cj;'ill \"()ulrl 1", limited to the portion due to the first defeJlc 8nt but in t1is CC1seno subdivision was done so the Bank has rcCOtlrSe to the whole farm i.e. 614 hectares. When cro ;:, ex~\minecl )y the first defendant's counsel, he te, Liricd '11'11 IjH; clV'..;nL~JLp;\ges 34 and 35 of the bundle of plcadj11gs \V~lS enLc'red bv the plaintiff on 5th December, 1989 for intel'est in Ianel of <']00 acres. W1F'11 rr'-cx:1P1ineri, he testified that the caveat of 5th DeceI11)('r, 1g:::;() W;1S withdrawn in 1990. That the mort !';If,r' VI: \', ",',pi s Ie red on 7th July, 1989 and the caveat was enter,'d 011 Sib December, 1989. Thus, there was no en(;llmllr;111cC Ihel1, Th;iI "';1 t'lI' ,'\'i,'cncc 0'1 behalf of the second defendant. Le~l'ncr! "')Im:"'j ror the plaintiff submitted that the plaintiff intcl1" I ('l ';'llc ,:1'1 :wres out of the 614 acres. The sui,(j:,,; ;i']'1 In h,; sold to the first defendant was not yet survc' " cd , Il()r ilHlic\tcd on a plan or map. These were to be m;)(I(' 'Il rll(llrC ill"i\l(iing the price of the unborn su .,' . . cc Ill(' !l('Eotiations were in the future it is not c ,I "'~11 I for ;11)SC11CC'of an agreed consideration and for; I 1(', I), «(,11' Ill' inn of any fundamental terms of C0111r;1(:I, Th;11;1 ruttll'(' cr)lltract does not amount to a JlS . contnH'( ~\I ;]\\', Thr~ Cclse of Foley v. Classique Coaches Ltd I \A';)'; rciied upon per Lord Mangham that "an lied uncol1ci 1)0rguill agree in i.l,r> Ji iI lire is rwi u contract." is /lot a contract; an agreement to It j'; C')llll';ei"', ';llblllissionhat the mortgage funds are not equi";I1c" nr;\ )r;"e nr the 214 acres/hectares or 614 acrcs, 'Ill It n'] ~"It F'cbrllC1rv, 1989 long after the contract of 301h !)CCclll1;cr, 1988, thc rirst defendant received a letter from l~illl;l r<'ll,k ini'()rllling him that the plaintiff had not c1e;,'cri 'Ii', illf1r;h1crlncs'" Thus, a clear warning to the plclinlir! 'Int 11" ShOlll'1 not do anything to the property wi hr" It \I r; I'r~rllli~,~'ionor or advice of AFC and Tobacco 80;1 'r () ;;:'I'l,l,i'" flw IlH1rtg;lgees of the former mortgages. Th;!! t' C ;1"1' I 11';lI' :'ljlS or information to the plaintiff from AF'C (" ,Inl' I) 1'{1:1I'r1 or 7ambia leading to the sum of K1),!-~()U,1 I,' ," ;1I'jll(~011 the certificate of search at page 34 or Ih" ,hintirr'slllllrl1c of pleadings. The first ddcn,I;,' I II " I ,t sell], !.i'f~plaintiffs indebtedness to AFC ani! 'i ' " ;11 II Oil 1)r:lwli of the plaintiff. r Thus, there arc ,,'I ",I ';IIFI 11,1rp practices' which amount to fraud jJll' 11;'1 t. t" :h~ ('him to fraud as categorized by the prr'I"'( r" COII'-I Da n fl i ( .; I )(' 1111",', :"d judgment of the Supreme 11 ; l Hl, Konidaris v. Ramlal Kanji • That t 1[' i' )1'1''''; did no "I-; -ce on a fundamental term of the contrilct ,11](1 Lhe I'ir:,;t defendant prematurely and frauc!ulcll'ly lodged thc transfer/assignment at the Lands and Deed:; Registry, In the absence of consideration the conlr;wl j" n'111 ,md V()l(, It was further submitted that even I' , (!c'" I)f tl','ll"i"('J"l.1:,ed by the first defendant is eITOIl('('lI' '\' (11' "Tonv1v tr;)nsl11itted from the plaintiff to the first (1(,1"'11 l,lnl, There \\';1'; no completion statement date sueh tll;,1 IV) one kn!''''s when the completion of the tran,',"'! ill)l " ,,1( pLwc, Thus, the transaction was never compll'\I'd ,\1111 the In( I'Cl11ent was premature, The certiCi,' \'1' ,[' title I,,; rc\'cr"ed, Le,lrJlf (, 'U'j'l I ('lllCI ; that the letter from his law firm to "1(' 'f" I it i'( 1Iu,)1I j.; privileged and does not amount to r'\' 1f \'''1'11 llc second defendant and the plain' I, "1', t )C 1'1: ,:--'lra1'of Lands and Deeds a party to 1 1[' 11'("-1 ("""(' nt" t 1e' (;onrl defendant's mortgage deeds. Th'1( "", . \" I"l) "J I,';" I;ollmunication to the plaintiff wh, " "" (' I (I(J"J~' , I , ','/,)S negotiating their loan with th" C' ('I Ill' 1)(""1""" their search revealed that in fact thc Jlll'ri n"(H' \,/,l~ 1(1 h" '~('('\Ired by the whole farm which W8'; I)' I' '11' '),. 1):)'1 , r the plaintiff. The subdivision (if any) \'"'1 '.)n1" 1""1"21,1 '!CITS. By registering the mortgage on L1C v.l.nic ;l!"r)i"'rt.y, . hc; mortgage was over secured and the P'" ,,'r defenri,lI ' , . (Ill' IIIr, rt i~;}ge be recoverable from the first Th l' s t 11" lll" 1"1n;:we hc' t.ren t ed as the "unsecured de btl' TeeO\"T]!" f"(11'l11le l"(,('i;)icllLof the funds, in equity. Le~1rlled C'('ullsel for t.he first defendant Mr. L. M. Mwanabo, SUblllill('ri t.h"1 Ille pbinliff I':nve more than one version of his si<ie ( " l 11 "i,' V in this mntter. In paragraph 15 of his stalelllCl11 oj cl,lim he st.;lles: "L!,c 11;,in!ifr ~vcrrcr or 1),,('(' 11l t'c r, 1'.18,q, fnr II C <:.,1,. nr ''lTl 'l1""",'kc ,.. " , "( ( ) '5511'darcs " S:11 I ' 'If' "<or 1\ C , ... l h c defendant lhat sometime in or about 30th day agreed with the plaintiff - off portion only being to 214 'r m 3792 Kabwe aforesaid: and that the plaintiff was to retain 400 "'nl the total area of 11Y mistake) of 1r I" l( 'C' lir:c1entering into an agreement I' L :;,l]c of the farm in issue. And I (' I I 1~llOrantly and was forced to do I I 1 III L Th e defendan t contends that he I '" J1 11' i".,'1I' ;llld a contract of sale was l' 1'1 i I ,<:, :;llnwn on pages 2 and 3 of the ""lri;"lt's bundle of documents I ' (: I , ;lC acres to be given back to the 1, ( I In hi with tlwt so b\ bour plnin resj)( 'pi'ainilfT 11"r Iv\1 I'i'; firsl defendant paid the loan the plaintirr owed t'lC 13al1k 8ne! had title processed in his It \\'rlS COli 1:~,'I'sSII 111l1";S;f1J1lhnt according to section 33 of the i,:1'lfls ;11,tI ')r;cds ,.'cgistry Act, a certificate of title is conCII,'I\C c':,Ir-J1ec ns to ownership of land. However, therc ;11'<' 11"1 11 ':('S when il can be cancelled, which the pl8inlirr I ,,; r, (,I n pl'r1\";, The statement of claim is clear thal the pi lilll iI" ;l!~rr;c( to ,';lle an unmarked off portion of 2 1"I i1('I'{, \' h Cic;I' h- shows an intention to sale the bnrl " HI 'I.r l' 1 '\';1S I rlllcC'd in writing on 30th December, ]988, '1'1 1" ,: ,:rr's t(;"limOI ,v that he never agreed to sale parl nr hi' I',; 1 In [he rir:.;1defendant, flies in the teeth of dOCUI1' l1i'll.;( '1 "'1'01'" ('ourl. The documents show there was ;, '1 ;1 I'CC f'll t 1.nS" ii' ;lIld purchase. As for the price, it "vas to '" tll'I' 11'ncr1 \"/ Lima Bank. This is shown by I ? I Ihe rirst defendant's bundle of d ()('U I ' , , 1' \' 'ill; Ir 1'" llilics for purchase of land were folio" d: hf' () ]'11C\ \' IS 1n a written form as prescribed by Ill", ;,IUI" ,11';1\I,i I ()77. Ii1£' (','''I'';'c1. does not I refer to any other or I' : and I J /j,IIl!< had an interest in the land l' () , 'i " i'l'operty. The plaintiff did not J27 even r'.", II' '1'(' fii"'" ddendant's evidence that the conlrncl '\',1." \' I 11es.'('(1 by an employee of Lima Bank. f\eithcl' ( irl h,' " "illce I \"idellee to disprove the fact that he had 1',"1",,10 "r' 'Ic ili:, "'),111with Lima Bank and that the S8lllC \,";.' '11" 1 1]\1 t'l" fir~l defendant. The plni'llill \\" l' InSincere and very economical with the tru(h \,"J rl'!;" I I' ('vr'n II,ld this Court in his evidence that he s\,111 1 'r'rl 1 ccrtif("ILe of title to Tobacco Board of ZUlllhi 1]1 Ie rio"~ IIOl.know how the first defendant got it \V'iI'll iL i" ,']";'1" l'rn!1l the documentation such as his 0,\'1'1 i"I: ""11 ,~ r" thr' first defendant's bundle of docll' I', '1)(' " \v;l~~ with Lima Bank kept as se('II" ",' 10 I' hi' (,hIClined. Furthermore, the plnintilT; 111('1111,1In :-"llo\V,IS if he was not aware of the C!l,lIH'r' 1,1' lilic i'lln 1he fi,'sl. defendant's names flies in the tC(~I h ,r 1" " ," 1',"".,1 'I i~;0wn lawyer dated 24th April, ] t)() I "'I" I " "I I' ,,"I of the plaintiffs bundle of dOClIlll'''II, " "I')I' said Idl.er is in fact in line with the Cl)1l t r'" L g, V'- I 1 ;\11(1" 'llirms the size of the land to be I " , I" , The plaintiffs assertion that he ilet 'S ;111dnot acres is not supported by ,Ill' ( III \1\,i(1II, 'j Ie size is expressed in words and f112: I I r" ' I 1 ' 'I',"', lili", "ji'l innLes any mistake or oversight. "' J ,, ' Thc clgl"'ll" 'IiI 'vas 1"1,cillf~ and it was proper for the propert\' il';(';1(" ('I titlc to be issued to the first c1dell,11 l' fn!, I (, wh.,'" land as subdivision was being ~. f) 8w;[il<'d accol'rj;l" ,, dc;f"llri III T Farm , " l the J l 1 ~1in tiff could get his portion In ..'i T i the ""rr'cmcn t while affording the first , 1 i 1 r' I' 'P' '7 ~ • f, ' ILwas argued that in Nkongolo . . I ~ National Commercial Bank " Limit,.,", CT,t (. nir:e _ '''lit,.,d lin receivership), Charles Z. R. 7 . (n.c) the Supreme Court cited the T",Xi anft Import Bank Limited v •.• " ',i, 'if" ;lnd thers (1993) (1994) ZR36 \\ hr"" i \ ", I,' Ih'1\: , I , r , I L . ;(' :'-. ,c:; I fl" /; r' • ) .c.:; l. I' , i }ie, '!!J if it is signed in the course of 'Ie I"''''/Jondent had a choice not to sign. the ,'flO; 'I) e IJusiness practice, as they had plaintiffs signed freely , ,,/' lIle The I dill T '1 J\SII heW <I choice not to sign but he went Th'l: , ( ';1:; compelled by the plaintiffs rli "'1 SI':11 freely, the plaintiff cannot 1" '1 :~J~'"": the document. The case of SalIn ,Ii" n I I;r;r; "ociety (1971) AC 1004 was ; '" a 78 year old widow signed a J2~ ch'!e U j 11"1' , ' ,I Mr. ' "f' had told her was a deed of gift of ber ilOII':' I ' I' nephI "V. She did not read through the dOeLl111Clil~;1'J('(' at l1v: lime of signing her glasses were brokell. I,' ,I ":lIlT1Clllwhieh she signed was in fact an 8ssi.!~11 11")', 'cr If';)' (;IJold intcrest in the house to Mr. Lee. 'j II' 13',1il,' 'Swiety advanced 2,000 pounds t,) Lee n 1,11 " "n~ll\ I I' (1)C deed. Mrs. Gallie brought an , , ., Lll(: hi tilding society claiming that thed, r1'" I. S!)l' I je<lded non est factum. The House o t' 1,0' , I' I ' I : , I i ,I ( 'Il C. Ir'r~c! L /". 'I' I ch,,' . f)ue' It Uw' fail. Although her signature lIIust 'I ('/11/ r "Id, the document she signed was not '), Fum that which she thought she I";.<:iling to plead non est factum '11; .\ ;seel reasonable care in signing. Mrs. '1'''11 hie to read the documenf'. " Aee(]' ,. .' fl0l11 The Ltd~ 'l ,~I : r( i C (\ ("1" I I Ihere are no true stories of I] lOltthe document m the first '11e lt is fundamentally different r' I h ()11 gh t he was sIgnmg as the o (' . tc Lotteries Board of Zambia 11wt "the standard of proving !JUII III Ie balance of probabilities". It " , ;II( I ' ",i lile plaintiff also failed to prove ", , J i '"" < 1 ' I. 1 "r~ \\'<1'''; ~()n'cd on the deed of transfer. " No hanel" riLiI , " " I'rt ,HI,: Icr:eI cvidence to prove this. The plain' , I ~ 1 ,'ll rc is'''; ,,1 i Ia r to his signature on all the othcr d, "ll1nell t ; he doc:, not dispute signing. The case of Colg:,fr; I :,hl1( live (7J) lnc. v. Able Shemu Chuuka and 'reli('( lljJrm that: • I{ I .; c I h' I " I' • I " 7! 'f' "'I' 111111(1,' , , , " ,'I )1'''' (/ ':ore I hcm another which public policy f',fj 111 (I:fe and competent understanding liberly "'10 freely in contracting and voluntarily and that their be shall ~ti(:cn. Also I 1 C 1 i I '-'. rh' s 111Rn that "where parties have elll )(\, e \':,.;, or " Clr1 f "f " • ; , " " ('0,' [met in a written document, i" ' ( I "N,{71!J admissible to add to vary 'I {Ilid I,he terms of the written : 11(1 , ;, Ii1'1'knew what was going on and C 11'11' '1111 '" hl' hi1e1 not contracted to sale a po'lif'!l « llis i'l'lll, 1\( 'il.ionally, that in the case of Anti- (orn' Coq ( secl: (' , I ' } oirj, ' ' I I ( I "'111Tn '11 V. Barnet Development " :-;'li'rr:me Court held that "under I (I" (') I,.;{ue"'" /' n C " 'Iil'ol(' ,,1 ,', 1 )L ,-or!s Registry Act, of certificate 'l1ce nr ownership 'r;, Uowever, under section 34 of land by a of t.w S( 1'/(' . \'Cl, (J (/::rt('-I':l'lc oj title can be challenged and (' :lllcr' alld ' , ,'f "el ... " "'Ie phintiffhas failed to prove fraud ":1 ;11 .' j'l'Pr0pricty by the first defendant I'llI'. C ""'1 ~1, '1)(' k;l"n' I COl m:,~lfor the second defendant , t III ti.", ; 1"11"1' on record and the contract 01" ,,,,' "II '(I h" th': r>1"intiffand the first defendant, a c alln fo'- ir;lllc! is llliSf"'Il"eivcd. The terms and conditions 0:" Lll" ('''''1 ";!" I \.\'r'"C "hiI' th"L the parties had agreed for t 1" [I a ('1'(" .'::) i . " ( 1 )' ,1/) ;1"1' . "I' I he farm. The parties further i~)i 11 irl' I (1 IT ;1 in 400 acres which location t LC;1rl ' I 'I" ,,] ('1\ ('wls further that the second cI c I,' C JIll t Ie \ ( r I I, i I 1C title before the mortgage 1 • L i " [iLk (il kndant on the premise that cUllc!usive evidence of the fact \'''' S (1 c registered owner of the (... I ! I 1 J 1 r I I ",'I'nr", he could assign, transfer or " I t (' : ;"'1f~. He added that without , r1" , • I iv' i'laintiff and first defendant, . t.1C S"" I)" ,\r+'wi'1nl'" . 'i~;;11 mortgage on the farm is not IT,'" be t" ;,II 'I II'; II 1(1 j n transfer of the farm '1 i( ,-, Ii cr i on the High Court decision , / • 1: t •, C' L'tnitcd v. Witola Mbuchi & John I (lie: r:'lll\"iri :1'; !1\It.hority. Therefore, the first , II] Ly t.o investigate the manner in \\hich 11" "1"'1 Icknci,ll)' I'cu~ne the registered title holder 1he 1,I;liil'ill in 1,i<: ;"JI)'nissinIlS does not dispute the e ,:isl('II" r,' I" 1,'[':)I "'J:.t!~;W(;over the farm. Therefore, '1\'I'l~ rlernulted on its mortgage r :pi.!.' I J , ,, (~ COlin oughL to exercise its powers in f'1'ccl(1' II n'l Illc h rill in linc with the counterclaim by the S '('Oil prnlH I' \ , , C'I"' ) , III , I'll t he extent of the mortgaged I i 1 " , \ V I) " h1'Jl1 3792 as confirmed by the k i \ I' '''ll')''i;l1s thereto. However, that 'f 1 lnt h;)'~ nn ohjection for the plaintiff 1" .' , I' t , II;, 11 Or ,( I ;I'Tes <IS testified by DW2. Art,.,. ('f'l) e t. r c: I:' i , I t ),' I }-r "'(' C' I Sf' , "P '11',1submissions by counsel, it I !lC pl!lint irr and the first defendant )' :1 ( "' ( ',: r \1' Ihe plaintiff to sale and the t I I () "IiTh;lSC farm number , ' II('wever, it is also a fact that "), 'n rl I ), : \i 11' irI C0n tends that he never sold , I I'j,,: "I) (;ither in whole or in part. I I I ,. [" 1- ,.f"'lr\;ll1t tricked him into signing J7 .~ Th,' first defendant contends ocher,\'1 (;, II i,> Dlso CI'II!l11on cause that the first defendant 111 (lC 2nd defendant to pay for the f. In 11 i'l ( I ": " I 1. 1:1 I"]" "I I' "w i~;~'I:r" t hClt. f~ll1for determination are \\ h I' I I", r (' " "\'C1S;1 ",Ii'l Cf\ntract of sale between the pl:1in 'IT 1'1(1 1. clrr'" 1,1'InLand for what portion or extent of the j;)' '\-\Ih;lt. i~,tile crfect of the second defendant's nlOrl' 1 I "I,ln,l? I IS ,I r: '-0 l)f' ',. lS ~;ll 1'''1111'(1 hy counsel that where real '~IIlj(;cl nf s:lk, (he contract of sale should be (".; I( ',,1 iii writ i, i~, This is in accordance with section .q r Ii<" \ 'I 'of Fr;I' 1'1s 1677, It is also settled law that dO("11 I " I ilHf ; ,J Iransaction such as notes or nlel 'r, r I I .. ('nn 11\' It.c :1 I:llirl contract if they contain 8 II [I", , "1' I 1"1-'11" 01' the contract such as the names 811'1 " tv ~'nlcl, This is m line with the , I rI ( ( '1~' In Wesley Mulungushi v. 'e I Ii ; , ;,,, 111 1 ~ 8 and David Howes and n~ y \1) t <: :~rl i'l (s led in her capacity as V,t 'n[ t-h~ lale Daisy ButtS)9. In the "lpIS ",' helel 10 he sufficient memoranda ,., I I' " ~ i \lute of Frauds since they ( ;11 1J \ I , , t I • S')Cr,'rjr,(1 tilc 'l'l'llC;; fJr iw parlj(~s, adequately identified the " • ,tlr' lllcl ,'1;1 [' i the nature of the consideration . " I Jro(' : cr, 1988 the plaintiff wrote to the :;ll'! ;111niT, " l"lI.r:r rnr the sale of farm number 37')' I,.. ,jrl \1'1" " 1( ;l(I\'jsr:o that the purchase price ","oulrl il(' i,' rll11l'lC 1 1)\, Lillla Bank whom he owed some n lOll' "1' ',i"I, I " "/- [I'ill rp1ense the title deeds to you Oner.7 'I "ll'" "eWer I 'I ;, i'lrie1Jten.ness with them". At j I n !i'lli " \ Ij';rlllcr! to having authored and S 'plll1 (T , , [CCC' I , , i,' I ( '1' 'II' "ITr'I' dillCr] 28th December, 1988 but '1-;1" 1"1 ' ,(I I,v the first defendant. On 30th "l ddcmlant wrote to the plaintiff H' ,CI I' :1'] II" I "rills as contained in the letter or 01' r r '(' Sill'lr' ria)! I he parties executed a contract Ol'~" CII\'I'1 I- (I 'f c c I,' '" " {' ill" I, 'l'I:'r: ,--;or the contract of sale, the 111(, \'('11' 'n!" to "repossess 400 acres '" !(lCOnl,inn and site would be I, ' 1, Ie ,. S "IlII1' , 1(', '(1 ('OJ,'r 'pi" Ih,,' it is invalid as it does not , I' r' ( ) (I ',llbmits that it was a future C Jll11 t ' .; I' U \' ( i ( 1 . fr' ';wl e rl1'~r1rirking the plaintiff into signing " • the conl' ct. Ilc les, ,ficd thal the purchase price was d term il)' rl h Li III D L~;\Ilk as stated in the letter of offer and he icl tile SUl1l t'lf' plnin~iff owed the Bank. His cJunsf'l 111)111i'S:lpL L1,c pbinLiff has failed to prove that he W;IS Iri keel inl.n si"ll;ng t.hr contract. Let m" S Ile from t.ll'; ollLset. th;lt I am inclined to accept thc I."S1. ( dCI dant.'s Lr "I ill10ny over the plaintiffs. As sublll (f' I 1 ) j\ 1r. 1 \\'<..1 n<11)0 the plaintiff seriously c )llLI',lelif cI himr , II. Thc contradictions illcon.'i~' "Ilci' s J 1 h ;,' t"s'imonv ,., "0 to his credibility. and His 01';11I c; (i nil\" S (-11\'iI ri' '-,('r W'I h t.he written documents in his h' 1 ,.h I' 11" si;'iel'lcnt. of claim even the letter f10m I'" ("II ~r' ('()ll'--"I"lg 'he lransaction. During trial he (f ni, fl '!;ctling a if) 111 fr')ll1 Li1l18 Bank and surrendering his (i"" ('( dOCll1 ( n f , . l(.an. I '(I In the Ii 'n'. I" :. lei' ('I' ["11m I(i o , S(' rv('r ;mel }"L ;,t page 1of his bundle of ;1 Bank confirming he got a I 11i111c.ll I -ill g t ri a1. He did not take the C1S(' \\'\t I (lv' SCI-lnll:--;'l'~SS it elcscrves. At some point In c.-n.' r i 1,ljr 11. II' '1 ch;J'l(;n~ed that he signed the V]rlf)' fj rs 1. II '11(c. h t', 'd 1:laL he was just fooling the 'J I 111 I , r( f're. inclined to accept the first defcl" verSll 1 I, ('ven1:.: as I will explain in due C 1\ II" ,. • The l Hl " r;l r I' snlc I'll irh the parties executed clearly st~lte~: I );1' III~S, .) (' '-"perly being sold as "Farm number 3797 'j, /JP, j "({hIlJC ") (''(Lell!. of 614 hectares with all its osse", GI'el IUJexhnuslul ill1prouements", It states in clause 4 th;]I" 1"-" lor WIP'('S In refund the buyer the principal OI11()rt' f I ;,' 1" l>'I/() on!\. and other expenses incurred (Ir/nlpr' r 1./" jJ1Irc/wsc) h/I t,e huyer at Bank interest rate ilL eZ'("'1I1", 1/](' dpn/In; i'l;1 Ihrounh as a result afthe default on. IIII' J' "f oJ111(' UClJrjn':', III m:; _I 1 'Iii, 11ll cr'll'r,lcl or sale is clearly in line with t1J e IIt, aJm I( r,~1', 1'1' Il ' Lim" I ;, klH' " kllnl" ,II 1- nr :)? I), .ember, 1988 which the plaintiff ')~"S l ''illillation lhat he authored. It tilc ;]illO'I'd Ill(' bu c1' (first defendant) paid to I1pi"H' t h' I ('n, 1hc )laintiff and Lima Bank i'HI, I '''~q, The rirst defendant came to I' it I'lr!), 1'1" n "]illlirr, I do not see how he hI" I] t1'il'L, ri inlo ,'igning the contract which is 111 V " hi" own II'I j ('1' or orrer, I am thus inclined to find 11'1' e [", elv S:"'I" I Ihe con mct of sale and letter of olle I' ;)" lill'lleri bl' '11', 1\\1:]n;lho, I am of the considered V,C" ,]( 1](' r(Jlll r~]('f "I' sak <lIld letter of offer satisfy secl in 1 "I' Il'e 8«1(11'" 1]1' F1';lllds, The parties are the pk'ill d I ,'I'I <:'. '1'<i<1Il1;the property being sold is , • the In defcll ',I 1\ '\ W" cl; "," consic!eration is the balance of {'\','rl Lima Bank, which the first <\~, rj, I "Il,in(:c! by Lima Bank. The plaintiff did ill)1 tilt', ;rc 'jl(' I' ",( defendant's testimony that ]1'.. ""nl (n" j'wr to Lima Bank and that the the c ntr;' free ;1 I r " "'Inf's', "I h 111(' !)<lnk Manager. He was a n;l"I;,' 1111 ill the whole transaction. There 'llirl (' I 1I';'el n:' s;lle which the Court must enrol' f' il111 "" t h f; c;l se of Colgate Palmolive su 1"':1, On I: aIle; pbill , SU ill, te -n' 0' , , eVl' I co l' ; ,( I ( , , , , , , it n1 1.11 us not persuaded by his ,11 11 1\ Ii, Il,lud or sharp practice. The , S ! I ; ["I I'm to the defendant. As I' ' I', t ri! " ' 11'11 '" h ('re 11"rUes have embodied the , " ,1 ('( ' r :1 "'riJ1cl1 document, extrinsic , I , Ii' '1'''lissible to add, vary or , , ' 1': 1f' I , V\ Irthermore, the plaintiff h8'c r,;;" 'n i'rr1V(' 11"'" 1](' W;l<'; (rif'ked. Whether he signed at ni I,' 'I' ("11';11' ti" fj:l\' is illlmaterial. He was very m11f I for s I ; con \'j , I I " '" [" sir.tlillr~ having offered the farm ,'" 'h' I (' I ill t h r; S:' III e letter. 11' , 11' I "J \I' (it d l even clause 4 of the ') . h,~ ;' 1;1 i 11 tiff. He did not default J ' 3 il~<. J 1 • 1 ~lcr!)rr1ance with the contract beL,':, ' /' :l1l( ,1' lir"l ddendant. He has failed to prove tl' 11c (lie! nnt sign thc deed of transfer. His signnilll' I' 'rkc(' 'Jr tr~H1srcr is the same as the one he S1GIV' b 'i, "llrl"'" n[TT for instcmce, which he admits '; 'I f~1ll'I" '(l f'"llstr;lL'~the contract through the cave;'! \I jell I,,~!nler \\ ;(l1rlrew, ~,re of no legal effect, as at tl,nll'il1 litl!' II) the r", ,n Iwd );,sseo to the first defendant and i ' I (l (r I 1 the fir'ot H;,,,; pI;], po''', CO']( for ' \ I an' Sill " C,,, I fI' I f1 f ') I ,'l 'q;H1s rrn1l) the second defendant. , f" IV 'h:ll the second defendant h('; ']i ~~ iwfore advancing the loans to , i 1-( ( , (" ! (\ \ ' \ 'r ", "'\ '. , 'u'i. ~. Il~,rp practice or that the ,, ,) , h'11 11lC rirst defendant being in or t i Lie for the said farm 1S , ; 1 I, ;'" ,;" j 1tended by both counsel . " 1 1 j r' "I ' " I 1 1 j1f'rnrrlance with sections 33 L; 1 ; I ! i 1'("',1" Registry Act and the ,, ( ,f 1 \ • I " rl . ~ ; 1 I"' ( f f , 1 III the Anti-Corruption 'I lnr'jll Corporation, supra . Fro! , I I .f I (I (,f ( 'r "lci (he contract of sale, it is al'n " 61 I I,;' ')" pi ,JII"' ';oi'i !he whole farm in extent ",' '"f"; I I '\ ' . ';' «(' I lough that the plaintiff is J3~ nl.)L ( r 'tlr",I't!)('( 1']1 of his form. In one breath he staLes 61 I p:t1S ,Jcres in another 614 plus hectares. And in his Sl;) ( 11e111of cl:lil' (lnf reference to 400 acres was a misl~l (', I ('lh iL the 1':<II:nt of the whole farm is 614 plus hec-t.;lrI'C: 'l. C:si;-",'d in I"" COIl(rncf of sale and the certificate of til II', do not aec(' )1. Ih,ll the reference to 400 acres in the ('1\111 wI. WrlC; ,) lllist"kc. The contract of sale clearly A' II t.; 1 1 C, t (~ e\ irlenee IS generally not ad III 1 : Ii del , \'dr' or elm Ir8d ict the terms of a written doct I UJ ( )1111',11 110 Le as testified by the first dercl 1.1 L11;\1 the p 11" <1i:,reed La let the plain tiff use 4 0 " ( r ' ~ leI' I.ls (~ 'v '\1'1 S ,'\ 1';-11, (;,l. This IS In line with , f 'I, rn]111"111 ,," s;' p nl1'J( cd to. Even the letters . 1'1C 1,;1I'{ics attest to this fact. I then' 1'1' ;1( ( i,1 1111' (:rs( ,irfcn, n.nt's testimony that ber:1ll,'e "fdiSl111 I'S ("f" thf' 1100 ,Jeres, he requested the ph1ill' ,I h'\ 'it <:11' "deC! ;-lnrl sllrveyed for himself. He can I" I to tl, il i, cross '~lPliJlCllinn th8t he has no objection nlifT hn 'il"T Ihl' !JOO ')(TCS, It is noteworthy that in his JI ;Iciin," the pllinLirr is ae :u811y seeking an order for spcr th c r 1 I ;1 1cr )(' con fr;let less 400 acres. Thus, ,I (' ,',m! 11(1 "hit',lil'" ,(1 the plaintiff having the 40( l( I SI1' livic' ~ I ),j ~.llr\'c '(:11.it is so ordered. • • , Reg;J 1",11 of G 1,1 aCI"C", ,:; mon( ", Lil( I' TCOllri 'cf('llfi;IIlt., J order that the remainder c:i;'rc~ ,1"'('" I"CIII"val of the plaintiffs i,; )(,; r'l"e i) ;eel ;111( sold for it to recover its 1(';1:' I h, i',lwlc r;\rn1 G 14 plus hectares was seCllrr , '1 11'''I"!'':;l':!' 11,~~rirst defendant obtained from the ~(' " I eI, 1'(n(bn:, I :"'i'(;i'rl", since DW2 like DW1 (first derend;l pl8i, , IT I, " ricri 111'11 11le r,"llk h;ld no objection to the ,l ' I , , 11 () (I ' IS so ordered, Both the p18i III i 11(1 ri ;! ri,;I'('1(';1'1 shoillc! yield vacant possession of I h" I 'n I \"1" nr 11'1'1 Illlml)(" 3792 to the second de reJl(' , S ) I 'm 1"1' 'r' '(~ ;'11(1S;l]t; to recover its money. Thl' KJ I , ( I ( , ) (I r 11' t" \ • I L .•• • for payment of 1.111S II cccssful I '"\, , derl'11' "'i'1' '1',1 to the action to the I) 'C 1'1\'( ill cld;ll,i1t or agreement. Leave to I 1 I ' eI , 1,1'''11,;, ') " ti;l" or September, 2016. ~~~ulMjctir.r . J, , r"ITT,(I~~ 'TDGE J 1.()