Richmond Finance Limited v Luzendu Benjamin Muyuka and Anor (2023/HP/1977) [2024] ZMHC 154 (24 September 2024)

jokBIA IN THE HIGH COURT FOR ZAMB .v 0' AT THE PRINCIPAL REGISTRY ..„. HOLDEN AT LUSAKA (CIVIL JURISDICTION) 4. (151\ 23/HP/ 1977 BETWEEN: RICHMOND FINANCE LIMITED PLAINTIFF AND LUZENDU BENJAMIN MUYUKA FELISTUS ZULU 1ST DEFENDANT 2ND DEFENDANT Before: The Hon. Mr. Justice C. Zulu For the Plaintiff: Ms. K Parshotam 85 Mr. A. Sitali of K. P. Martin Legal Practitioners. The Defendant: No Appearance. JUDGMENT Cases referred to: 1. National Drug Company Limited & Another v Mary Katongo (SCZ Appeal No. 79/2021) 2. Kekelwa Samuel Kongwa v Nkhata (SCZ Appeal No. 8 of 2017. 3. Valentine Webster Chansa Kayope v Attorney General. Legislation referred to: 1. The High Court Rules Chapter 27 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The Plaintiff, Richmond Finance Limited took out a writ of summons and statement of claim dated November 7, 2023 P against the Defendants. It is alleged that the Plaintiff purchased Subdivision 256/5A of Stand No. 19174 Matero, Lusaka from the first Defendant, Luzendu Benjamin Muyuka ( the vendor) selling as beneficial owner. It is alleged that the first Defendant, including the second Defendant, Felistus Zulu reported to be in current possession of the land have refused to give vacant possession to the Plaintiff. The Plaintiff's claims are as follows: 1.1.1(i) an order that the Defendants jointly and severally render vacant possession of S/D 256/5A of Stand No. 19174, Matero, Lusaka; (ii) in the alternative, an order that the Defendants being in possession of the property re-purchase the property at its current market price; and (iii) payment of mesne profits. 1.2 The Defendants filed their joint defence dated March 28, 2024. They denied the existence of the sale agreement, but instead averred that what existed was a loan facility between the Plaintiff and the first Defendant. And that the second Defendant was not privy to the said transaction. 2.0 PRE-TRIAL ORDER FOR DIRECTIONS /HEARING 2.1 An order for direction was issued on March 26, 2024. The Plaintiff complied with the order for directions, but the Defendants did not. The matter was set down for trial. And the trial date was set for July 23, 2024. The Plaintiff and its Counsel were in attendance, but the Defendants were inexcusably absent despite being notified of the date of trial. And pursuant to Order 35 rule 3 of the High Court Rules Chapter 27 of the Laws of Zambia, the Plaintiff was granted -J 2- leave to proceed with its case, and thereafter the case was closed for judgment. 3.0 EVIDENCE 3.1 The only witness for the Plaintiff was Musonda Chimfwembe Dinde, the Credit Manager in the employ of the Plaintiff. 3.2 He recounted that in 2022, the Plaintiff and the first Defendant executed a contract of sale relating to Subdivision 256/5A of Stand No 19174, Matero, Lusaka. That the first Defendant as owner of the property agreed to sale, and the Plaintiff agreed to buy at the purchase price of K70,700.00. He stated that the purchase price was paid in full upon execution of the contract of sale. The contract of sale albeit undated was produced. 3.3 He added that apart from the contract of sale, a deed of assignment was equally executed by the first Defendant dated April 17, 2023. Similarly, the deed of assignment was produced. And a memorandum of understanding was evinced, supposedly showing that the first Defendant fully understood the nature of his obligations under the contract of sale. 3.4 He stated that in the light of the foregoing, the Plaintiff proceeded to obtain a Certificate of Title, and the same was produced. 3.5 He remonstrated that despite paying the purchase price in full, and obtaining the Certificate of Title, the Plaintiff has not been able to obtain vacant possession of the property. -J 3- 4.0 SUBMISSIONS 4.1 As regards the validity of the contract of sale, the Plaintiff's Counsel made reference to the case of National Drug Company Limited & Another v Marti Katongol wherein it was held: 4.1.1 It is trite law that once parties have voluntarily and freely entered into a legal contract, they become bound to abide by the terms of the contract and that the role of the court is to give efficacy to the contract when one party has breached it by respecting, upholding and enforcing the contract. 4.2 It was argued that the contract of sale herein should be given its full effect, by ordering the Defendants to render vacant possession to the Plaintiff. Counsel also reacted to the Defendant's assertion that the transaction was a loan facility by arguing that this assertion lacked proof. 4.3 According to Counsel, the Plaintiff having obtained the Certificate of Title, it is entitled to vacant possession and mesne profit. 5.0 DETERMINATION 5.1 I have carefully considered the evidence adduced and the Plaintiff's arguments. I am in no doubt satisfied that the Plaintiff and the Defendants entered into a contract of sale. Whereby the Defendant agreed to sell to the Plaintiff and the Plaintiff agreed to buy Subdivision 256/5A of Stand No. 19174 Matero Lusaka. The purchase price was paid in full. Consequently, the -J4- transaction was perfected, resulting in the Plaintiff obtaining the Certificate of Title dated April 23, 2023. 5.2 In the case of Kekelwa Samuel Kongwa v. Nkhata2 the Supreme Court held: 5.2.1/n our view, section 33 of the Lands and Deeds Registry Act is unambiguous. It provides that a Certificate of Title shall be conclusive as from the date of its issue and shall be subject only to such encumbrances, liens, estates or interest as may be shown in the Certificate of Title. Further, section 34(1)(c) provides that the registered proprietor holding a Certificate of Title for an estate or interest in land cannot be deprived unless through fraud. 5.3 The Certificate of Title in the name of the Plaintiff acquired through the said contract remains conclusive evidence that the now Registered Proprietor of the land in issue is the Plaintiff. The unproved fact by the Defendant's defence suggesting otherwise in terms of the transaction relating the Plaintiff's acquisition of title is immaterial. 5.4 The Plaintiff is entitled to vacant possession, and to mesne profit. According to the contract of sale, vacant possession should have been given on the date the contract was executed. However, as previously observed, the contract of sale was undated save for the year, 2022. Therefore, mesne profit is recoverable from the date the Plaintiff obtained the Certificate of Title (April 23, 2023) until the Plaintiff obtains actual possession of the property. -J5- . 5.5 For the avoidance of doubt, mesne profit is recoverable, because, the Defendants' occupation of the property is without the consent of the Plaintiff (see Valentine Webster Chansa Kayope v Attorney General3). 6.0 CONCLUSION 6.1 In the light of the foregoing, the Plaintiff's claims are allowed, to the extent that, the Plaintiff as the Registered Proprietor of Subdivision 256/5A of Stand No. 19174 Matero Lusaka is forthwith granted vacant possession. And the claim for mesne profit is allowed to be recoverable from the date of the Certificate of Title was issued, until the date when the Plaintiff takes vacant possession of the property. Mesne profit to be assessed by the Registrar of the High Court. 6.2 Costs for the Plaintiff to be taxed in default of agreement. 6.3 Leave to appeal granted. DATED THIS 24TH DAY OF SEPTEMBER 2024 ~ ■ ■ ■ ■ ■ ■ ■ ■ ■ • ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ THE HON. MR. JUSTICE C. ZULU -J 6-