Josephine Nsofwa Kabamba v Lucy Kanungwe (2024/SD/005) [2024] ZMSUB 8 (1 February 2024)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2024/SD/005 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN REPUBLI C O F lA M BI A THE J UDIC IARY ~ 1 FEB 20?4 ~ M A G l 5 T R ATE C L A SS 1\1 l". O . ao 4 20 101, M B A L A JOSEPHINE NSOFWA KABAMBA PLAINTIFF AND LUCY KANUNGWE DEFENDANT Before: Hon. Deeleslie Mondoka For the Plaintiff : Ms. J. Chapinda of Messrs. Legal Aid For the Defendant : In person Board JUDGMENT CASES REFERRED TO: i. ii. iii. G. W. KEETON, AN INTRODUCTION TO EQUITY 304 (5TH ED. 1961); PUBLIC WATER SUPPLY DIST. V. FOWLKES, 407 S. W.2D 642, 647 (MO. APP. 1966); GIDEON MUNDANDA V TIMOTHY MUIWANI AND AGRICULTURAL FINANCE CO LTD AND S. S MWIINGA (1987) ZR 29; J1 iv. MOSES MILAMBO (ADMINISTRATOR OF THE ESTATE OF ALFRED SIANDAVU) AND COL. JOSEPH KEITH KAMA V. FLORENCE H. MWEEMBA CAZ APPEAL NO. 009/2020; v. vi. GIDEON MUNDANDA V TIMOTHY MULWANI AND THE AGRICULTURAL FINANCE CO. LTD AND S. S. S. MWIINGA (1987) Z. R. 29 (S. C.); TUI UK LTD V GRIFFITHS [2023] UKSC 48; vii. MWENYA AND RANDEE V PAUL KAPING'A (1998) ZR 2 14; viii. ix. x. xi. xii. xiii. xiv. xv. TITO V WADDEL (NO. 2) (1977) CH. D. P. 106; JOSEPH MULENGA V. THE PEOPLE CAZ APPEAL NO. 128 OF 2017; RATING VALUATION CONSORTIUM AND D. W. ZYAMBO & ASSOCIATES (SUING AS A FINN) V THE LUSAKA CITY COUNCIL AND ZAMBIA NATIONAL TENDER BOARD (2004) Z. R. 109; LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. 21 OF 2020; BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50; CHRISTAIN T. N. DIEDERICKS V. FRAZER ALEXANDER (Z) LIMITED 2012/HN/176; BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6; TREVOR LIMPIC V RACHEL MAWERE & OTHERS SCZ JUDGMENT NO. 121 OF 2006, AND xvi. MOSES V MACFERLAN (1760) 2 BURR 1005. OTHER MATERIAL: i. ii. iii. iv. v. BLACK’S LAW DICTIONARY, 9TH EDITION, 2009; TREITEL ON THE LAW OF CONTRACT, EDWIN PEEL, 13TH EDITION, 2011; G. MONAHAN ON ESSENTIAL CONTRACT LAW, 2ND EDITION CAVINDESH PUBLISHING (AUSTRALIA) PTY LIMITED 2001, CHITTY ON CONTRACTS, VOLUME 1 (GENERAL PRINCIPLES) 26TH EDITION, SWEET & MAXWELL, LONDON (1999) BY BEALE H G; HALSBURY’S LAWS OF ENGLAND VOL. 16, 4TH EDITION. INTRODUCTION [1] This Judgement proceeds from an unliquidated claim wherein the plaintiff is claiming for: (i) an order for specific performance of the J2 contract of sale entered into between the plaintiff and the defendant; (ii) damages for inconvenience and anxiety; (iii) costs, and (iv) any other reliefs the court will deem fit. [2] The matter was commenced on 8th January, 2024 by way of writ of summons (hereinafter referred to as the writ). BACKGROUND FACTS [3] Hereinafter is a distillation of the facts in support of the claim– which facts are but a pars pro toto of the proceedings during trial. [4] On 18th January, 2024, when the matter came up for trial, PW1, the plaintiff herein gave the lowdown as hereunder. [5] In 2020 when PW1 heard that the defendant herein was selling an unfinished house, PW1 went and met the same indicating to the defendant that she was interested, but alas, PW1 remarked to the defendant that she had no money at the moment to procure the house. [6] The defendant being in dire straits struck a deal with PW1––as she needed to pay school fees for her daughter who was in university. PW1 testified that, the parties with one accord made a deal that the defendant would sell the property at the asking price of K70, 000.00, which monies PW1 would remit over a three-year stint. In the main, the defendant went short of the herein proposed sum, and paid K15, 000.00 instead, which monies PW1 paid to the defendant and the same acknowledged receipt of the monies. [7] It was PW1’s testimony that she was to remit another payment in 2021, but failed to make any payments owing but not limited to the fact that she was paying school fees for her daughter’s post graduate training in SA. J3 [8] Fortunately, PW1 resumed with the payment in 2022 after failing to do so in the remainder of 2021. PW1 evinced a document into court which for convenience is herein marked “JSN1”. Hereinafter are the payments hitherto made by PW1 to the defendant: i. Payment made and received in 2021 : K15, 000.00 ii. On 2nd February, 2022 iii. On 15th February, 2022 iv. On 4th March, 2022 : K10, 000.00 : K19, 700.00 : K4, 050.00 [9] It was PW1’s testimony that owing to the delay on her part, the defendant hiked the price by K10, 000.00. which then meant an increase from the initial balance of K21, 250.00 to a new balance of K31, 250.00. [10] PW1 made substantial developments on the parcel of land in question. The defendant owing to PW1’s delay in paying the balance indicated that she wanted to cancel the contract, after PW1 had roofed the house, built a toilet. PW1 pleaded with the defendant; it was PW1’s testimony that she went with the full price to have the debt discharged, but the defendant intimated to her that she had made up her mind. [11] PW1 indicated that the defendant committed to refunding PW1 the monies paid including the cost for the developments on the house, but has since failed to honour that commitment. In 2023, PW1 reminded the defendant about the refund but to no avail. PW1 did upon learning that the defendant had started sending potential buyers to view the house. The defendant kept changing dates for her refund and the two were in this constant loop. [12] The defendant and PW1 in the process started bandying words, when PW1 indicated that she was going to come up with a payment plan, which plan meant that the defendant would make good her dues over a three (3) stint year, and that the plan was to be operational from the 3rd day of January, 2024. J4 [13] PW1 feeling hard done-by the defendant––PW1 blocked the defendant’s mobile number on WhatsApp, and PW1 has since then not communicated with the defendant. [14] During cross-examination the defendant inquired into when the two got into the contract for the sale of the house. Nothing was advanced in re-examination and that marked the close of the defendant’s case. THE DEFENDANT’S CASE [15] The defendant only had one (1) witness, DW1, the defendant herself, LUCY KANUNGWE, who testified as hereunder. [16] DW1 related that in 2018 her daughter matriculated at Copperbelt University (CBU), alas, the same was given no bursary. And since DW1 had a small plot at New ZESCO compound she elected to sell the same. [17] DW1 testified that in August, 2019, DW1 and PW1 spoke and agreed that DW1 would sell and PW1 would buy the property at the asking price of K85, 000.00. And to put the transaction in train, PW1 made an initial deposit of K15, 000.00 leaving a balance of K70, 000.00. It was DW1’s testimony that PW1 intimated that she would settle the balance in 2020. [18] It was DW1’s testimony that on PW1’s undertaking that the same would settle her debt––DW1 contracted a debt of K30, 000.00, whose debt DW1 had to pay up interest of about K15, 000.00. PW1 then started making pittances of K10, 000.00 to settle the outstanding debt. [19] Owing to the delayed payment, DW1 elected to increase the house the house by K5, 000.00 escalating the asking price to K90, 000.00 in total. [20] DW1 then testified that in 2021 she drew up a contract, which contract PW1 did not sign. DW1 further testified that on account of PW1’s failure to make payments for the property herein, DW1’s daughter failed to proceed into her third year. And from the time PW1 started J5 paying up until 2022 she had only paid K48, 500.00. DW1 elected to repudiate the contract until PW1’s friend came to mediate on PW1’s behalf, and that’s how DW1 reconsidered. [21] DW1 and PW1 continued their contractual relationship, up until DW1 indicated to PW1 that she was going to sell the property to someone else. Much to DW1’s dismay, upon visiting the property, DW1 discovered that PW1 had commenced developments on the property in question. DW1 indicated that she was besides herself and confronted PW1 for commencing her developmental works without PW1 having discharged her debt. [22] DW1 being cut up about PW1’s behaviour––DW1 informed PW1 that she would refund her the monies over a three (3) year stint, as that would be the equivalence of the time it had taken her to pay. DW1 averred that she sent a text to PW1, but the same did not respond. [23] DW1 in her closing submissions woefully submitted in essence that, the rot set in foe DW1 when she was widowed, and that as a widow being without a concurator to aid her shoulder her extant financial burdens– and that having had three (3) kids looking up to her compounded her estate, along with a myriad other issues. [24] In cross examination, it was established that the asking price for the property in question was K85, 000.00. DW1 under the mill of cross- examination acknowledged that PW1 had come with payment and that DW1 declined to receive the same. DW1 argued that she cancelled the contract in 2021, alas, counsel argued that the contract was given a new lease of life, as DW1 accepted payment for the property in question in 2022. Counsel also made allegation of unconscionable advantage and or potential unjust enrichment being occasioned to the advantage of DW1. J6 [25] In re-examination DW1 merely lamented that she did not refuse to refund, as she informed PW1 of a payment plan scheduled to commence in January, 2024. This DW1 did akin to giving her examination-in-chief. [26] And that marked the close of the defendant’s case. UNDISPUTED FACTS [27] Hereinunder are the issues in dispute: (i) that DW1 sold PW1 property at the asking price of K85, 000.00; (ii) that the same was to be paid over a three (3) year stint; (iii) that PW1 had roofed the house and developed the same. DISPUTED FACTS [28] Having considered the evidence herein, I find the following facts to be disputed: (i) that the contract between PW1 and DW1 was at an end, and (ii) that the asking price was increased from K85, 000.00 to K90, 000.00 owing to PW1’s delay in settling his dues. ANALYSIS OF THE LAW AND FACTS [29] When the plaintiff commenced process by way of writ of summons, one of the reliefs sought was––specific performance. [30] BLACK’S LAW DICTIONARY, 9TH EDITION, 2009 defines Specific performance as: the rendering, as nearly as practicable, of a promised performance through a judgment or decree; or a court-ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when the sale of real estate or a rare article is involved. (emphasis mine) [31] It is worth noting that––“in essence, the remedy of specific performance enforces the execution of a contract according to its J7 terms, and it may therefore be contrasted with the remedy of damages, which is compensation for non-execution. [32] In specific performance, execution of the contract is enforced by the power of the Court to treat disobedience of its decree as contempt, for which the offender may be imprisoned until the same is prepared to comply with the decree. Actually, ... it is not strictly accurate to say that the Court enforces execution of the contract according to its terms, for the Court will not usually intervene until default upon the contract has occurred, so that enforcement by the Court is later in time than performance carried out by the person bound, without the intervention of the Court1.” [33] Under current law, courts grant specific performance when they perceive that damages will be inadequate compensation. In re PUBLIC WATER SUPPLY DIST. V. FOWLKES, 407 S. W.2D 642, 647 (MO. APP. 1966), specific performance was deemed an extraordinary remedy, awarded at the court's discretion: It must be remembered that specific performance is not a matter of right, even when the plaintiff's evidence establishes a contract valid at law and sufficient for the recovery of damages. Ordering specific enforcement of a contract is a matter within the sound judicial discretion of the court.... The plaintiff was required to show the good faith and equities of its own position, and the trial chancellor, in weighing the equities, was entitled to consider whether a decree of specific performance would work an unconscionable advantage to the plaintiff or would result in injustice2. (emphasis supplied) 1 G. W. KEETON, AN INTRODUCTION TO EQUITY 304 (5TH ED. 1961) 2 PUBLIC WATER SUPPLY DIST. V. FOWLKES, 407 S. W.2D 642, 647 (MO. APP. 1966) J8 [34] In addition, the case of GIDEON MUNDANDA V TIMOTHY MUIWANI AND AGRICULTURAL FINANCE CO LTD AND S. S MWIINGA (1987) ZR 29 was drawn to our attention on the discretion of the court to make an order for specific performance of contracts where damages would not adequately compensate a party for breach of contract, when it asserted as hereunder: … a judge's discretion in relation to specific performance of contract for sale of land is limited to where damages cannot adequately. (emphasis mine) [35] In view of the foregoing––I would like to address the issue and or argument proffered by counsel for the plaintiff (PW1) that there subsisted a contract between PW1 and DW1, which contract governed their transaction. [36] It is crucial to note that according to the Learned author of ESSENTIAL CONTRACT LAW, a contract is defined as: “An agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties. A legally binding agreement made between two or more persons by which rights are acquired by one or more to acts or forbearances on the part of the other or other. (Emphasis supplied) [37] However, the more pertinent question herein would be––whether or not there was a valid contract between the plaintiff (PW1) and the defendant (DW1) as argued by counsel herein, when DW1 offered orally her tenement for sell to PW1 at the consideration of K85, 000.00 staggered across a 3-year stint? In this regard, I find it necessary to rake over the notion that a contract is an enforceable agreement. Further, J9 the learned author of the LAW OF CONTRACT3, Edwin Peel, in the 13th Edition, the position at page 1, states as follows: “Contract as enforceable agreement: A contract is an agreement giving rise to obligations, which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties”. (underlined for emphasis) [38] Further, according to the Learned Author of ESSENTIAL CONTRACT LAW4 at page 27 that: “A valid contract is a contract that the law will enforce and creates legal rights and obligations. A contract valid ab initio (from the beginning) contains all the three essential elements of formation: Agreement (offer and acceptance). Intention (to be bound by the agreement). Consideration (for example, the promise to pay for goods or services received”. (Emphasis supplied) [39] And following from the foregoing, a more pertinent inquiry would be ––what issues are of concern vis-à-vis the performance of a contract? To help unpack this notion, I shall consider the Learned Authors of CHITTY ON CONTRACTS5 who stated the general rule relating to the performance of a binding contract at paragraph 22-001 as follows: “The general rule is that a party to a contract must perform exactly what he undertook to do. When an issue arises as to whether performance is sufficient, the Court must construe the 3 TREITEL ON THE LAW OF CONTRACT, EDWIN PEEL, 13TH EDITION, 2011 4 G. MONAHAN ON ESSENTIAL CONTRACT LAW, 2ND EDITION, CAVINDESH PUBLISHING (AUSTRALIA) PTY LIMITED 2001 5 CHITTY ON CONTRACTS, VOLUME 1 (GENERAL PRINCIPLES) 26TH EDITION, SWEET & MAXWELL, LONDON (1999) BY BEALE H G J10 contract in order to ascertain the nature of the obligation (which is a question of law); the next question is to see whether the actual performance measures up to that obligation (which is a question of ‘mixed fact and law in that the Court decides whether the facts of the actual performance satisfy the standard prescribed by the contractual provisions defining the obligation”. (Emphasis supplied) [40] By right of the above, I would like to make clear the fact that––a contract does not need to be in writing to be valid. Further, from the evidence herein gleaned––and as rightly argued by counsel for the plaintiff, PW1 and DW1 did indeed have an agreement (offer and acceptance). Intention (to be bound by the agreement). Consideration, i.e., K85, 000.00 as the promise by PW1 to pay for the tenement owed by DW1. [41] Thusly, as an underlining rule, contracts once entered into must be performed, in accordance with the terms therein, this is regardless of whether it becomes onerous or even impossible to do so. This is in line with the concept of "pacta sunt servanda" (agreements must be kept). [42] This means that the party who fails to perform his obligations under the contract becomes liable for damages. This is known as the rule of absolute contracts. It means that there are no exceptions when it comes to the performance of one’s obligations under a contract unless, something out of the ordinary like a supervening event happens. DETERMINATION [43] I have carefully considered and applied my mind to the facts and law herein. I will go out on a limb here and say––on the evidence herein submitted I am bound to say that the determination of this matter turns on the question whether the sale agreement executed between the Plaintiff (PW1) and the Defendant (DW1) was binding and legally enforceable. J11 [44] Thus, what becomes an issue of consequence is whether in the circumstances of this case the remedy of specific performance is available to the plaintiff. [45] In view of the foregoing facts and law––I cannot abandon myself to simply adopting what the plaintiff through her counsel and the defendant have submitted, as that would be tantamount to taking a very dim and parochial view of the issue herein. And doing that would be a glaring omission on my part––with the potential to constrain justice and the proper development of jurisprudence. [46] And to assuage the sceptics––my position is bolstered by the Supreme Court’s holding in SAVENDA MANAGEMENT SERVICES V STANBIC ZAMBIA LIMITED (SELECTED JUDGMENT NO. 10 OF 20 18), which is in the vicinity of–an adjudicator (judge and magistrate alike) should not confine his submissions to merely those of the parties; the same must tower beyond the submissions of the parties and interrogate the law and make reference to provisions of the law that have not been referred to by the parties. [47] In casu, counsel holding brief for the plaintiff (PW1) made a cre de coeur for the remedy of specific performance. Of note however, is the fact that when dealing with issues of land––specific performance is apt in such instances. In re MWENYA AND RANDEE V PAUL KAPING'A (1998) ZR 2 14, the Supreme Court held that: “The law takes the view that damages cannot adequately compensate a party for breach of the contract for sale of an interest in a particular piece of land or of a particular house however ordinary.” (underlined for emphasis) [48] In the above cited case, the apex court further referred to the case of TITO V WADDEL (NO. 2) (1977) CH. D. P. 106 at P. 322 where it was stated that: “The question is not simply whether damages are an "adequate" remedy but whether specific performance as it were will do more perfect and complete justice than (an) award of J12 damages. This is particularly so in all cases dealing with a unique subject matter such as land.” (underlined for emphasis) [49] The law concerning specific performance of contracts relating to or the sale of land is quite clearly set out in paragraph 1764 of CHITTY ON CONTRACTS 25th Edition, which reads in part: “The law takes the view that damages cannot adequately compensate a party for breach of a contract for the sale of an interest in a particular piece of land or of a particular house (however ordinary) . . .” [50] In the premises, I hold the view that in this matter, specific performance would be ideal, as damages may fall short of mitigating the loss suffered by the claimant. WAS THE CONTRACT BETWEEN PW1 AND DW1 RESCINDED BY DW1 OR WAS IT MERELY VARIED? [51] It is obvious that––owing to the conduct of the parties herein being PW1 and DW1 a contract was indeed entered into by the same for the sale of a piece of an unfinished house (land), which property belong to DW1. [52] On the subject of rescission, the learned authors of Chitty on Contracts, 13th edition, provide: “Substituted Contract. A rescission of the contract will also be implied where the parties have effected such an alteration of its terms as to substitute a new contract in place. The question whether a rescission has been effected is frequently one of considerable difficulty for it is necessary to distinguish a rescission of the contract from a variation, which merely qualifies the existing rights and obligations. If a rescission is effected the contract is extinguished; if only a variation, it continues to exist in an altered form. The decision on this point will depend on the intention of the parties to be gathered from an examination of the terms of the subsequent agreement and from all the surrounding circumstances. Rescission will be presumed when J13 the parties enter into a new agreement which is entirely inconsistent with the old, or, if not entirely inconsistent with it, inconsistent with it to the extent that goes to the very root of it. The change must be fundamental and: ‘.... the question is whether the common intention of the parties was to abrogate, rescind, supersede or extinguish the old contract by a substitution of a completely new or self-subsisting agreement' ” (paragraph 22-028) [53] The learned authors go on to quote a passage from Lord Dunedin's opinion in the case of MORRIS V BARON COMPANY [1918] A. C. 1, where he says: “the difference between variation and rescission is a real one, and is tested, to my thinking, by this: in the first case there are no such executory clauses in the second arrangement as would enable you to sue upon that alone if the first did not exist; in the second you could sue on the second arrangement alone, and the first contract is got rid of either by express words to that effect, or because, the second dealing with the same subject matter as the first but in a different way, it is impossible that the two should both be performed." (paragraph 22- 029) [54] On variation, the authors state: “Variation. The parties to a contract my effect a variation of the contract by modifying or altering its terms by mutual agreement ...” (paragraph 22 - 032) [55] They go on to provide: “Variation or rescission? Where the formal requirements apply to a variation but not to a rescission, it is obviously important to determine whether there has been a mere variation of the terms or a rescission and this question may not be an easy one to answer. The effect of a subsequent agreement - whether it constitutes a variation or a rescission - will depend upon the extent to which it alters the terms of the original contract. The test suggested by Lord Dunedin in Morris v Baron Co has already J14 been referred to, and in the same case Lord Haldane said that for a rescission: 'There should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire of an alteration, however sweeping, in terms which leave it still subsisting' If the changes do not go to the very root of the contract there is merely a variation." (paragraph 22 - 034). [56] In light of the foregoing––DW1’s argument that she rescinded the contract in 2021 cannot really hold. Why? Well, DW1 by her conduct and act of receiving monies from PW1, in 2022 on 2nd February, 15th February, 4th March, respectively. [57] DW1 by her conduct and the act of receiving said payments signalled in no uncertain terms that the contract between her and PW1 was subsisting and that the same was merely varied and not rescinded. [58] The Supreme Court when addressing the issue of contracting by conduct in re RATING VALUATION CONSORTIUM AND D. W. ZYAMBO & ASSOCIATES (SUING AS A FIRM) V THE LUSAKA CITY COUNCIL AND ZAMBIA NATIONAL TENDER BOARD (2004) Z. R. 109, held to the effect that the court can discern a clear intention of parties to create a legally binding agreement between themselves, which can be discerned by looking at the correspondence and the conduct of the parties as a whole. [59] To iterate––it is safe to conclude that there was indeed a contract between PW1 and DW1, and that the contract between DW1 and PW1 was merely varied when owing to delays on the part of PW1, DW1 increased the consideration from its earlier sum to K85, 000.00. Therefore, DW1 cannot now flipflop from her position seeing as by her 2022 acts, the same––loosely put––waived her right to rescind the contract. [60] Therefore, the argument that DW1 had cancelled the contract does not hold, notwithstanding the text messages herein evinced marked J15 “JNK2” evidencing the fact that talk of refunds had been tabled, which refund has hitherto been to no avail. TIME OF THE ESSENCE [61] In the present case, the parties agreed that the payment would be made within three (3) years. Alas an alack, there was no proper intimation between the parties that time was of the essence. PW1 and DW1 continued to conduct themselves as though there had been a binding contract governing their relation. [62] It may be said that time is essential firstly, if the parties expressly stipulate in the contract that it shall be so; Secondly, if in a case where one party has been guilty of undue delay, he is notified by the other that unless performance is completed within a reasonable time the contract will be regarded as at end; and lastly, if the nature of the surrounding circumstances or of the subject makes it imperative that the agreed date should be precisely observed6. [63] From the parties conduct and evidence herein, it can be gleaned that the transaction was open-ended as there was no date of completion for the payment of the balance sum herein. This meant that time was not of the essence. DW1 herein did not convincingly issue any proper notice to complete to PW1 for the balance to entitle her to treat the contract as at an end, upon default on the part of PW1. DW1 made arguments built wholly ex silentio7, which arguments are not altogether convincing as the same were bereft of substantial evidence. [64] On a measured appraisal of the evidence and or facts herein––it is safe to settle that––time was not of the essence8, owing but not limited to the fact that the defendant was open to receiving and did receive the 6 MWENYA AND RANDEE v KAPINGA (1998) S. J. 12 (S. C.) 7 From the facts of lack of specific evidence (as of written or oral attestation) 8 MOSES MILAMBO (ADMINISTRATOR OF THE ESTATE OF ALFRED SIANDAVU) AND COL. JOSEPH KEITH KAMA V. FLORENCE H. MWEEMBA CAZ APPEAL NO. 009/2020. J16 monies relating to the herein contract in 2022, post the time alleged to have been the period during which DW1 cancelled the contract in 2021. [65] Nevertheless, DW1 decried that––time was of the essence with regards to the herein transaction, when no proper notice to complete was issued by DW1 to warrant the alleged cancellation to the sale agreement upon breach on the part of PW1. [66] In casu, having earlier established that the contract of sale was still in place, as time of performance was not of the essence and that no notice to complete was issued to warrant breach by the plaintiff––I am satisfied that the remedy of specific performance is the proper or appropriate order to be made in the circumstances of this case9. [67] Thusly, specific performance like any other equitable remedy is discretionary and based on the existence of a valid enforceable contract and will not be ordered where there is an adequate alternative remedy, or where severe hardship will be occasioned. Specific performance is a decree by the court to compel a party to perform its contractual obligations granted, as earlier stated, at the court's discretion10. SPECIFIC PERFORMANCE AND ISSUES OF HARDSHIP [68] And as an aside––permit me to transiently submit albeit making no odd to the issue that––DW1 in the final analysis when she argued in the vicinity of–owing but not limited to the fact that she is a widow, she has had a thin time (of it) and thus, she had been unable to remit or refund PW1 of her monies. More like a thinly veiled attempt at raising the issue of hardship in that allowing specific performance in favour of PW1 would cause her hardship. 9 Ibid 10 MOSES MILAMBO (ADMINISTRATOR OF THE ESTATE OF ALFRED SIANDAVU) AND COL. JOSEPH KEITH KAMA V. FLORENCE H. MWEEMBA CAZ APPEAL NO. 009/2020. J17 [69] In view of the foregoing, as to hardship, I would quote from SNELLS PRINCIPLES OF EQUITY 27th edition at page 598, the relevant paragraph of which reads: “To constitute a defence, however, the hardship must have existed at the date of the contract; specific performance will not be refused merely because, owing to events which have happened since the contract was made, the completion of the contract will cause hardship ....” (emphasis mine) [70] Notwithstanding, in the circumstances of this case, I do not consider that the hardship to DW1 should be taken into account when considering whether or not PW1 should have specific performance11. [71] Thusly––the trial court or indeed this court cannot be expected to ignore the uncontroverted evidence which without a doubt gave support to the plaintiffs claim, that the debt owed to DW1 was north of K70, 000.00, seeing as DW1 raised the same on account of delay on the part of PW1, but that the same is less than K90, 000.00 contrary to the contention by DW1. And that PW1 has since paid a quantum of K48, 750.00. [72] Granted that DW1 had no legal representation––DW1 managed to cross-examine PW1. Alas, DW1 left the evidence of PW1 materially unchallenged. Why? Well, I can only surmise that this was because she told the truth and DW1 could not challenge her12. [73] By way of information, it is crucial to note that––bald assertion via testimonies made by witnesses on oath materially aid the court in making a determination and may be perceived as a fait accompli if the same are uncontroverted13. 11 GIDEON MUNDANDA v TIMOTHY MULWANI AND THE AGRICULTURAL FINANCE CO. LTD AND S. S. S. MWIINGA (1987) Z. R. 29 (S. C.) 12 JOSEPH MULENGA V. THE PEOPLE CAZ APPEAL NO. 128 OF 2017 13 In re TUI UK Ltd v Griffiths [2023] UKSC 48 it was cited that Lord Herschell LC (at pp 70-71) was cited as stating his understanding of the rule of Browne v. Dunn as: J18 UNJUST ENRICHMENT [74] Permit me in lieu of making a speedy conclusion to congregate my thoughts around the argument counsel made when she approximated as hereinafter that––selling the house to someone else, without so much as refunding PW1 even for the cost of developing the house would be “unjust enrichment14” on the part of DW1. I am burdened to make a context dependant observation here that––at any rate––the property in question has since increase in value, owing but not limited to the developments made on the said property. [75] Touching the herein issue of unjust enrichment––various courts in Zambia and perhaps elsewhere utilize the concept of unjust enrichment purely as a barometer when determining quantum or ordering specific performance or other awards under a judgment15. [76] And dealing with the herein idea, the Court of Appeal in our jurisdiction in LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. “I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems Page 22 to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.” 14 Black’s Law defines unjust enrichment, as a benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense 15 CHRISTAIN T. N. DIEDERICKS V. FRAZER ALEXANDER (Z) LIMITED 2012/HN/176 J19 21 OF 2020, sympathized with re in BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50., concerning the test for unjust enrichment. The said criteria comprise the following questions: (i) Has the Defendant been enriched? (ii) Was the enrichment at the claimant's expenses? (iii) Was the enrichment unjust? (iv) Are there any defences? [77] Further in re BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6, it was stated … “that if the first three questions are answered affirmatively and the fourth negatively, the claimant will be entitled to restitution.” (emphasis mine) [78] In re TREVOR LIMPIC V RACHEL MAWERE & OTHERS SCZ JUDGMENT NO. 121 OF 2006, wherein the Supreme Court found it to be unjust enrichment to allow the respondents to take the property in issue which had massive improvements made by the appellant, saying that equity would not allow it. The Supreme Court ordered that the value of the improvements be assessed and that the appellant be compensated by the respondents. [79] Consequently, cancelling the contract as per DW1’s contention would entail that the plaintiff (PW1) loses the developments thereon and DW1 being unjustly enriched, as she cannot compensate the plaintiff for the loss of assets. Therefore, the principles of equity herein apply. [80] Further to, HALSBURY’S LAWS OF ENGLAND VOL. 16, 4TH EDITION para. 657 provides that: “When claims on property had once come within the Jurisdiction of a court of equity, whether in the ground of trust or otherwise, the court applied its own doctrines in order to J20 adjust the party’s rights in accordance with the intention of the settlors and testators or to prevent injustice”. [81] And at para. 658 the authors state as follows: “In certain matters which were ordinarily the subject of Jurisdiction at law, equity exercised a concurrent Jurisdiction. This was based on various circumstances: (1) That the legal remedy was not available; (2) That the equitable remedy was more efficient; or (3) That the procedure in equity afforded advantages which were not attainable at law”. [82] In view of the hereinbefore submissions––I cannot but in good conscience lend countenance to what was said in the case of MOSES V MACFERLAN (1760) 2 BURR 1005, wherein Lord Mansfield spoke of an action to recover money which ‘ex aequo et bono’ (according to equity and good conscience) or ‘by the ties of natural justice and equity’ the defendant ought to refund. In underscoring the need to refund, he observed that the refund should be: … “for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express, or implied;) or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances” … (Emphasis mine) CONCLUSION [83] Having established herein that there exists a legally and enforceable contract between PW1 and DW1––I will not interfere with the contract between the plaintiff and the defendant. [84] The inevitable corollary of my decision is that I––order specific performance on the part of the defendant for the contract of K85, J21 000.00 being consideration for the sale of the unfinished house, made as between the plaintiff and the defendant, wherein the plaintiff has until now paid K48, 750.00. [85] I further order that the plaintiff settles the unpaid balance of 36, 250.00 owed to the defendant on or before the 30th day of April, 2024. [86] Failure to making the said payment by the plaintiff to the defendant, the defendant herein is free to cancel the contract and shall be required to refund the plaintiff of all monies paid, including the cost of developing the house, which cost shall be a subject of professional assessment and or evaluation. [87] Parties to bear their own costs. [88] All parties have the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGMENT DELIVERED AT MBALA IN OPEN COURT ON 1ST FEBRUARY, 2024 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J22