Zumbe Titus Kanangu v Kingsland City Investments Limited [2024] ZMCA 318 (20 November 2024)

[OLDEN AT NDOLA Civil Jurisdiction) :ETWEEN: :UMBE TITUS KANANGU APPELLANT ,ND ~INGSLAND CITY INVESTMENTS LIMITED RESPONDENT '. ORAM: Siavwapa JP, Chishimba and Patel, JJA On 11 t h and 20th November, 2024 or the Appellant: Ms . R. Samajomba of Messrs Nkusuwila Nachalwe Advocates or the Respondent: Mr. N. Chaleka of Messrs NCO Advocates JUDGMENT HISHIMBA JA, delivered the judgment of the Court. ASES REFERRED TO: 1. Royal British v T urquand (1 856) ALL ER 2. National Airports Corporation v Reggie Ephraim Zimba and Anothe (2000) ZR 154 3. Wesley Mulungushi v Catherine Bwale Mizi Chomba (SCZ) Judgmen No.11 of2004 4. Jane Mwenya and Jason Randee v Paul Kapinga (SCZ) Appeal N1 175/2009 5. Industrial Gas Limited v Waraf Transport Limited and Mussa] Mogeehald (1997)SJ.6 6. Dr. Sultanova Zumrad v Kalinda & Another [2018] ZMSC 310 7. Match Corporation Limited v Edward Choolwe and Khalid Mohamme• Appeal No. 72 of 2002 . o. ~ .£CCllli:UI i:LIIU .1.1Uc.n..yc.a- V DUCAIIUH:n. C'i:L.£.n.. C'.£U):IC.£1. IC.:t ~ 'c!D "'l"OV 9. Cavmont Merchant Bank Limited v Amaka Agricultural Developme1 (2001) ZR 73 10. Rudnap (Zambia) Limited v Spyron Enterprises Limited (1976) ZR 32 11. Mahogany v East Holyford Mining Company [1875] LR HL 869 12. Clementina Banda and Another v Boniface Mudimba (2011) ZR 11 Vol 3 13. Moses Milambo, Col Joseph Keith Kamanga v Florence H. Mweemb CAZ Appeal No, 009/2020 14. Lloyds v Grace Smith 1912 AC 716 15. Mackay v Commercial Bank of New Brunswick L. R.5 P. C 394 16. Armagas Limited v _Mundegas SA (1986) AC 17 ,EGISLATION REFERRED TO: 1. The Companies Act No. 10 of 20 17 ~THER WORKS REFERRED TO: 1. Halsbury's Laws of England 5 th Edition, Volume 1 2. Chitty on Contracts, 30th Edition Volume 2 (2008) & volume 2, 32nd Editio (2017) 3. The Lands and Deeds Registry Act Chapter 185 of the laws of Zambia .0 INTRODUCTION . 1 This appeal is against the judgment of Hon. Ms. Justice Iren Zeko Mbewe. The learned Judge held that though t h e Proper1 Manager was an agent of the respondent, with ostensib] authority to act on its behalf, the appellant should have bee put on notice and inquired into her dealings, which went beyon her scope of duty or employment. The lower Court further hel that the respondent was not vicariously liable for its employee conduct. In addition, that there was no valid and enforceab] contract of sale, the same b eing void for want of consideration .'L un tne aoove oasis, tne court oe1ow aec11nea to grant tn following orders: specific performance, declaratory order tha the appellant was a of bonafide purchaser for value withou notice and order vesting property to the appellant . . 0 BACKGROUND .1 The appellant entered into a contract of sale with th respondent, for the purchase of a property described as C5-3E D3-A, stand number LN 24982/3 situate in Kingsland City Twin Palm Road, Ibex Hill Lusaka ("the subject property") at th price of US$ 74, 795.00 . . 2 On diverse dates between April 2019 and August 2019, th appellant paid a total sum of US$ 50,000.00 into the persona account of the sales manager. The respondent failed ti commence construction of the subject property. Despite severa demands the respondent, refused to proceed with the change c ownership of the said property . . 3 This prompted the appellant to commence an action against th respondent by way of writ of summons and statement of clain seeking the following reliefs: i) An order for specific performance directing the defendant to fulf its obligations under the contract of sale dated 29th April 201 S maae oetween tne p1a1nun ana aerenaant nere1n tor tne sale 1 the plaintiff of property number C5-35, D3-A on stand numb< Lusaka LN 24982/3 for the sum of United States Dolla1 Seventy-Four Thousand Seven Hundred and Ninety-Five (US 74, 795) ii) An order declaring the plain tiff as bona fide purchaser for vah..: without notice of the said property and vesting the property i the plaintiff iii) Costs of and incidental to this action; and iv) Any other relief the court may deem fit . .4 The respondent, in its defence, refutes entering into a contrac of sale with the appellant for the sum of US$ 74, 795.00. Th respondent denied that the appellant deposited the sum of USI 50,000.00 into its bank account, hence the reason it could nc begin construction of the subject property. Further, that th appellant had not furnished any particulars of damage or los claimed and was therefore not entitled to any of the relief sought . . 0 DECISION OF THE COURT BELOW 1 The Court below, in determining the matter, framed th following as the issues for consideration. 1} vvueu1e1 uuy 1v1u11u1a11 u1e a11egeu rruperLy 1v1a11ager wa:s c1 agent of the Defendant who had authority to bind the Defendar ii) Whether the Defendant is vicariously liable to the Plaintiff; iii) Whether or not there was a valid and enforceable contract of sa: between the Plaintiff and the Defendant; iv) Whether the Plaintiff is entitled to the reliefs sought . . 2 The learned Judge found as fact that Joy Munthali held herse out as a Property Manager of the respondent. The learned Judg further found that the Property Manager was an agent of th respondent, who had ostensible authority to act on behalf of th respondent. Based on her representations, the Propert Manager persuaded the appellant to execute the contract c sale . . 3 In determining whether the respondent could be hel vicariously liable for the Property Manager's actions, the learne, Judge found that it was not the appellant's business to inquir into the respondent's internal management practices an, procedures . . 4 The learned Judge made an inference that the appellant shoul, have been put on notice. It was strange that the Propert Manager requested the appellant to deposit the purchase mane into her personal account, actct1ng that It was h1gn1y unusu: that an entity like the respondent would require a client tom~ payment into an employee's personal account. This should ha'\i raised a flag . . 5 The learned Judge made an inference from the circumstance of the case that the appellant should have been put on notic and enquired into the dealings with the Property Manage which went beyond the scope of her duty or employment. Base on the above, the learned Judge found that the respondent wa not vicariously liable for its employee's conduct regarding th transaction at hand . . 6 Regarding the validity and enforceability of the contract, th learned Judge stated that in any contract of sale, there must t an intention to create legal obligations, offer, acceptance an consideration. In this instance, she found that there was offt and acceptance between the appellant and the respondent bt no consideration. In the absence of consideration, the learne Judge held that there was no valid legal enforceable contrac that the contract of sale was void. Consequently, the learne Judge was of the view that in the circumstances of this case was inappropriate to grant the remedy of specific performano 1ne appeuarn: naa 1a11ea 10 prove rnar ne enrerea 1n10 a 1eg and enforceable contract of sale with the respondent. I. 7 The Court below declined to grant a declaratory order that U appellant was a bona fide purchaser for value without notic The Court also found no basis for granting an order vesting U property in the appellant and dismissed the action. ~. O GROUNDS OF APPEAL •.1 Dissatisfied with the decision of the Court below, the appellru appealed, raising five grounds couched as follows: i) The learned Judge erred in law and fact when she found th; no valid legal and enforceable contract between ti appellant and the respondent on the grounds that no val: consideration was paid by the appellant, as the money wi directly deposited in the respondent employee's person account; ii) The learned Judge in the Court below erred in law and fa◄ when she refused to grant an order for specific performanc of the contract of sale on the basis of her finding that U contract of sale was void; iii) The learned trial judge erred in law and fact when she he: that the transaction was a sham perpetuated by U respondent's Property Manager in her capacity as agent, y◄ refused to hold the respondent vicariously liable for i· agent's actions within the scope of the respondent authority; IVJ 1 ne 1earnea Juage 1n cne \;OUrc oe1ow errea 1n 1aw ana 1a when she refused to grant an order declaring the appellai as a bona fide purchaser for value without notice; and v) The learned trial judge erred in law and in fact when sl refused to grant an order vesting the property in ti appellant on the premise that no valid and enforceab contract existed between the appellant and the responden ;.o APPELLANT'S HEADS OF ARGUMENT ;, 1 The appellant filed heads of argument dated 13th Februru 2023. In support of ground one , counsel submitted that it : undisputed that the payments were directly deposited into tr personal account of the Property Manager. This wa s based o the misrepresentation made by the Property Manager to tr. effect that the respondent was using her personal account 1 receive funds due to an issue with their account. ;,2 The argument is that the transaction with the Property Manage was effectively a transaction with the respondent, and a subsequent actions, including payments made through tr Property Manager, represented valid consideration. Tr. appellant had no reason to doubt that the Property Manager c an agent could not transact and receive funds on behalf of tr. respondent. We were referred to the cases of Royal British Turquand111 and National Airports Corporation v Reggi .t!ipnra1m :£t1moa ana anotner1 - 1 wnere tne courts op1nea tnat party dealing with a company need not be concerned with war of authority of the company's representative . . 3 Counsel contended that consideration was provided to th respondent, thereby creating a legally binding and enforceabl contract. We were urged to overturn the finding of fact that the1 was no legally binding contract between the parties . . 4 Arguing ground two, learned counsel submitted that the Cou1 below misdirected itself by declining to grant an order fc specific performance. Reference was made to the Suprern Court decisions of Wesley Mulungushi v Catherine Bwale Mh Chombal 31 and Jane Mwenya and Jason Randee v Pa1 Kapinga1 41, in which it was stated that specific performanc should be granted in the event where an award for damages wi not be adequate compensation. In casu, the appellant lost considerable amount of money in addition to the loss of th subject property, and that damages would not adequate] compensate him . . 5 In ground three, it was submitted that despite the Court belo' holding that the Property Manager was an agent of th respondent, the Court refused to hold the responder v1canous1y 11ao1e 1or tne Property 1v1anager acnons. couns referred us to the Supreme Court decision in Industrial Ga Limited v Waraf Transport Limited and Mussah Mogeehald1 in which it was stated that, "as long as the wrong 1 committed by an employee in the course of his employmen the general rule is that the employer will be vicariousl liable. " ,.6 The principle of vicarious liability is anchored on the principl that the wrong of a servant or agent for which the master c principal is liable, is on e which is committed in the course < employment or his authority as held in Dr. Sultanova Zumra v Kalinda & Another161. We were implored to hold th respondent vicariously liable for the actions of its employee, th Property Manager. ,. 7 Under ground four, we were referred to the definition of a bon fide purchaser as defined by the learned authors of Black's La1 Dictionary 7 th Edition. Learned counsel submitted that th Court below ought to have deemed the appellant as a bona fid purchaser for value without notice for the following reason: that he intended to purchase the subject property in good faitl and was unaware of any fraudulent behaviour during th transaction ano purchase 01 the subJect property. ~·urther, th: the appellant was acting within the spirit of an agreement ar: consistent with the justified expectation of the parties ar: faithfulness to an agreed common purpose. ;_g In support of ground five, which assails the refusal to grant a order vesting the property in the appellant, counsel relied upo the arguments advance in grounds one, two, three and four. \\ were urged to uphold the said ground. •. O RESPONDENT'S HEADS OF ARGUMENT ,.1 The respondent filed its heads of argument on 8 th October 202• In rebutting ground one, counsel submitted that the issue Wf whether the payments made by and deposited into U respondent's employee's bank account amounted consideration to bind the respondent to perform under t} contract. Counsel challenged the argument that U respondent's employee misrepresented issues with t} respondent's bank account, which led to the assertion th: payment could not be made into that account . . 2 For a contract to be valid, there must be an offer, acceptano consideration and intention to create legal relations. To amour to consideration, the forbearance, detriment, loss, c respons10111ty given, sunerea, or unaen:a. Ken mus1 oe oy a par to a contract so that the right, interest, profit or benefit accrue to the other party to the contract at that party's request. ,.3 It was contended that there was no valid reason for the Court · find that there was consideration. None of the abm circumstances occurred in this case as the respondent did rn obtain any value. There being no exchange for value, there We no consideration and the contract of sale was unenforceable. ,.4 In respect of ground two, learned counsel submitted th: specific performance is an equitable remedy. Reference We made to the case of Match Corporation Limited v Edwa1 Choolwe and Khalid Mohammed171 and the authors , Halsbury's Laws of England on the remedy of specif performance. It was argued that there being no contract of sa between the appellant and the respondent, there was no bas for the Court below to grant an order for a remedy for breach 1 contract, such as specific performance. 1.5 In ground three, learned counsel quoted the learned authors 1 Halsbury Laws of England and Chitty on Contract Volume on the definition of the term "agency'' used to connote tr relationship which exists where one person has authority c capacity to create 1ega1 re1auons oe1ween a person occupyu the position of principal and third parties. An agent can 1 expressly granted the authority to enter into contracts on behc of a third party. According to learned author Mumba Malila J: in Commercial Law in Zambia Cases and Material, the pow, of the agent to affect the principal's legal position vis-a-vis thiI parties is the key feature of an agency relationship. A numh of authorities on agency were cited which we shall not rehash i.6 The position of the respondent is that there was no expre~ agency. The Property Manager did not have the authority 1 enter into contracts on behalf of the respondent. We wei referred to the testimony of DWI, John Shi who stated th: contracts of sale were approved by management. Couns contended that the exhibited contract of sale was signed l another person alleged to be the authorised person, while tr Property Manager signed as a witness for the appellant. 1.7 Learned counsel however, agreed with the finding of the Cou below that the Property Manager had apparent or ostensib authority as an employee to enter into contracts on behalf of tl respondent. The case of Freeman and Lockyer v Buckhur! Park Propertiesl81 which the Court below relied on as authori' on apparent or ostens101e autnorny was rererrea 10 ex1ens1ve1: That the principal must have made representations to the thit party that the agent is possessed with the authority to enter in1 contracts on their behalf, specifically within the bounds of U agent's apparent authority. The third party must in reliance 1 the representation, contract the principal through the agen The representation must be made by a member of the compar who had actual authority to manage the business to which U contract relates . . 8 Counsel submits that it is trite that a company acts through i directors. Reference was made to Section 86 of the Companit Act No. 10 of 2017. The contention in this case is that tt Property Manager was not a director with the capacity to de, with third parties and bind the respondent. To assume that ar employee of a company is authorised to transact on behalf of company is to create an injustice as it would leave companit open to all manner of liabilities . . 9 Counsel referred us to the case of Cavmont Merchant Ban Limited v Amaka Agricultural Development191, in which tr Supreme Court guided that where an agent in making contract discloses both the names and interests of the princip: on wnose oena.11 tnat contract 1s oe1ng maae, 1ne agen1 as general rule, is discharged from liability on the contrac Counsel went on to distinguish the above case from the ca~ herein. In casu, the Property Manager had no ostensible < apparent authority to act. Further, there was nothing to sho the exact circumstances of the relationship between U respondent and the Property Manager of agent and principa for the Property Manager to bind the respondent in the contra1 of sale. ► .10 Citing the case of Rudnap (Zambia) Limited v Spyro Enterprises Limitedl 101, counsel argued that the appellant brn the burden of proving that the contract of sale was made wi1 an employee or agent of that company who was held out to l authorised agent to enter into such an agreement, which t failed to discharge. i.11 Notwithstanding the rule in Royal British Bank v Turquandr that an outsider contracting with a party in good faith is entitle to presume that the internal procedures have been compli<: with and will not be affected by irregularities of which they ha no control, the said rule is not absolute and has exceptions. Or excepnon 1s n1gnngn 1:eo 1n 1:ne case or 1v1anogany v ~a: Holyford Mining Company' 11 ' where it was held that: "The exceptions here are: if the outsider was aware of the fa that the internal requirements and procedures have not bee complied with (acted in bad faith); or if the circumstances und which the contract was concluded on behalf of the company we suspicious." i.12 Counsel contended that circumstances under which tl contract of sale was concluded were susp1c1ous. Tl representation by Ms. Munthali that the respondent's bar account was experiencing difficulties and unable to recei, funds, compounded the suspicious nature of the situation, ar. should have put the a ppellant on notice. The appellant made r further inquiry on the respondent's bank account ar continued depositing money in the Property Manager's person bank account for over four m onths. Although the appellant excused from inquiring into the internal requirements of company, the circumstances under which the contract w~ concluded was very suspicious and ought to have put U appellant on notice . . 13 According to the learned authors of Halsbury's Law ofEnglani to hold an employer vicariously liable, it is necessary to prm tnat tne emp1oyee nas oeen gu1n:y 01 a 1or1 1owaras 1ne perst: injured. The employer is not responsible where the injury occasioned without the commission of a tort. Counsel note: that the appellant did not plead the commission of a tort whic is the basis of finding the respondent vicariously liable. >.14 Learned counsel submitted that having demonstrated that tl: Property Manager's actions were not within the scope of he employment, the respondent cannot be held vicariously liab for her actions. ,.15 In response to ground four, counsel argued that the appellant claim for a declaration as a bona fide purchaser for vak without notice lacks merit. The full payment for the property : a crucial requirement for being recognised as a bona fie purchaser for value without notice. The case of ClementiE Banda and Another v Boniface Mudimbal 121 provides tl: requirements a party must meet to be declared a bona fie purchaser. Our decision in the case of Moses Milambo, C« Joseph Keith Kamanga v Florence H. Mweemba1131 on tt definition of bona fide purchaser for value was cited . . 16 Regarding ground five, learned counsel contended that the1 was no valid contract and specific performance could not t oruereu. i:)ect:1on .:>~ 01 t:ne .1.,anus anu .ueeus Keg1st:ry n.c Chapter 185 of the Laws of Zambia was cited that no actio for possession under certain circumstances, can lie against tr Registered Proprietor. We were urged to dismiss the appeal. r.o AT THE HEARING ·.1 The Parties' Advocates reiterated their arguments on record. tO DECISION OF THE COURT :.1 We have considered the appeal, the authorities cited and tr arguments advanced by learned counsel. Though a number c grounds have been raised, the substantial issue is one of agenc and authority to bind the principal. :.2 It is not in dispute that the parties entered into a contract c sale in respect of the property subject of appeal. Further, th~ the appellant paid the sum of US$ 50,000 into the persorn account of Ms. Joy Munthali, the Property Manager of tr respondent. :.3 The dispute revolves around the issue of whether Ms. Jc Munthali, was an agent of the respondent, if so whether she ha ostensible authority to bind the respondent. The other issue : whether the respondent as employer could be held vicarious] liable for its employee's actions. Vicarious liability in tr. concexc 01 pnnc1pa.1 agenc re1auonsn1p means an 1mpos1uon 1 responsibility on the principal for the acts of the agent. It based on the common agency law principle of "responde1 superior meaning let master answer". The relation of agency : created by express or implied agreement of the principal an agent. We shall revert to the principles in our analysis, whic the learned Counsel adequately cited. :.4 The Court below found that the Property Manager was an age1 of the respondent with apparent authority to bind tr respondent. Notwithstanding the above finding, the Court belo went on to hold that the respondent was not vicariously liah for the Property Manager's conduct regarding the transactio because the appellant should have been put on notice an inquired into the dealings with the Property Manager that wer beyond the scope of her duty of employment. The appellar ought to have known that directly depositing money into tr. Property Manager's personal account went outside the scope ( her employment . . 5 The appellant argues on the strength of Industrial Gas Limite v Waraf Transport151 and Dr. Sultanova Zumrad v Kalinda 1 anocnt:r -· LUi:::lL u1e re:spuuueuL uugru LU nave ueeu ueJ vicariously liable for the Property Manager's actions. :.6 The respondent on the other hand argues that there was n express agency because the Property Manager was not express: authorised to enter into contracts on behalf of the responden Further, that the circumstances under which the contract we concluded were very suspicious and should have placed tr. appellant on notice. ,. 7 The evidence in the Court below is based on the witne~ statements of the appellant and Mr. Christopher Kabaso (PW2 The record shows that when the matter came up for trial, tr. respondent was not in attendance and had not complied wit the Order for Directions. Counsel for the appellant applied th~ the Court proceeds to enter judgment pursuant to Order 2 Rule 16 (1) of the RSC 1999 Edition. The Court reserve delivery of judgment to 11 th February, 2022 . . 8 The contract of sale appears at pages 65 to 74 of the record c appeal (RoA). The payments made into Joy Munthali's person: bank account and mobile money account appears at pages 8 to 93 of the RoA. ,.~ 1n our view, Ine rropeny 1v1anager ne1a ouI as agenI 01 u respondent. She gave the contract of sale to the appellant ar caused it to be executed by the appellant. She was held out l the respondent as an employee and the principal was disclos<: to the appellant. :.10 The cardinal issue for determination is whether the responde1 can be held vicariously liable for the Property Manager fraudulent actions. In our view, to determine whether tJ: respondent was vicariously liable, it is necessary to establis the fallowing: i) Whether the Property Manager's representation of he authority to receive money on behalf of the respondent in1 her personal account fell within the scope of her authorit: ii) Whether the appellant should have been put on notice t the nature of the transaction; and iii) Whether the appellant should have relied on the Proper1 Manager's presentation that she could receive money o behalf of the respondent into her personal account. ,.11 The Property Manager presented herself as having the authori1 to bind the respondent. She guided the appellant on tr necessary steps to take in the property purchase proces: aav1s1ng 1nal 1ne responaenrs aavoca1es wou1a nana1e t. conveyancing. Additionally, she prepared the contract of Sc and outlined the payment terms, indicating that a deposit w required upon execution. Upon receiving the initial deposit, sl returned the contract to the appellant, which had be, purportedly signed and initialled by the authorised person. Did the Property Manager's representations to the appella regarding the mode of payment into her personal accounts fi within the scope of her authority? In Lloyds v Grace Smith 11 the House of Lords cited the case of Mackay v Commerci Bank of New Brunswick 1151 where the Court, in discussing t] representation of an agents authority, formulated the followii question: "Was his" (the agent's)" situation such as to bring t l representation made within the scope of his authority" t 12 It is trite that an unauthorized agent may be able to bind h principal where she/he may be said to have apparent authorit Equally, it follows that the unauthorised agent's o~ representations to a third party as to his/her alleged authori cannot bind the principal. We have considered whether tl misrepresentation made by the Property Manager to the effe Illa[ Ille purcllase pnce oe paJ.a 1nio ller personat accounI we within her apparent authority. Did this speer misrepresentation fall within a class of representation that tl Property Manager was held out as having authority. We find the circumstances of this case that there is no basis upon whii we can hold that the Property Manager's fraudulent acts cou be said to be within her authority as an agent or employee the respondent. 3.13 We find that the Property Manager's representation to recei funds into her personal account was not made within the scoi of her authority. 3.14 The second issue is whether the appellant should have been p on notice by the nature of the transaction. The responde argues that the manner the contract was concluded w, suspicious, and ought to have put the appellant on notice, th the Property Manager was acting outside the scope of h authority. The appellant made no further inquiry as to tl status of the respondent's bank account and continued deposit money into the Property Manager's account for f01 months. :,.10 KeLurn1ng LO Lile issue aL ilana, Lile 1earnea auLilors 01 '-'nn. on Contract discuss when a principal may not be bound by tl acts of an agent with a third party. They opine as follows: "A principal is bound by acts done by an agent in the scope of 1 apparent authority whether in tort or otherwise. A third par dealing in good faith with an agent acting within his ostensit authority, is not prejudiced by the fact that as between t: principal and his agent, the agent is using the authority in : undisclosed way that the principal can rightly complain that t: agent is using his authority for his own benefit and not that the principal." But where the third party had notice from t: nature of the transaction that he is dealing with an agent who exceeding his authority, the principal is not bound and the fa that the agent's acts are manifestly for his own benefit m amount to such notice. And it is a standard proposition that principal is not liable merely because by appointing the agent : gives him the opportunity to act fraudulently. (Underlining oui 3.16 From the above, it can be inferred that a person should be p on notice by the nature of the transaction as it may indica that they are dealing with a person exceeding their authority that the agent's actions are clearly for personal gain. In 01 view, the request made to the appellant to pay the purcha pnce into her personal account did exceed her authority. ought to have put the appellant on notice or revealed that it w: for her personal gain. s.11 1t tnere1ore 1011ows tnat tne appeuanrs re11ance on tne .t'roper Manager's representation was unreasonable. The request 1 the Property Manager for payment to be made into her person account was unusual. L 18 The correct test as laid down by the House of Lords in Armag; Limited and Mundogasl 161, was whether there was a holdir out or representation by the principal to the claimant, intend( to be and infact acted upon by the claimant that the agent h~ authority to do what he/ she did. In casu the appellant reli( solely on the representations of the agent as to her authority fi money to be paid into her personal account without ar presentation or holding out by the principal to the appellant. 1.19 For the reasons stated above, we uphold the finding of the Cou below that the request by the Property Manager should ha, raised a red flag and put the appellant on notice. :.20 In our view, the respondent cannot be held liable for tl Property Manager's dishonest and fraudulent actions mac outside the scope of her authority. We refer to the learn<: authors of Chitty on Contract at pages 39 to 40 on an age1 acting in fraud of his principal who state that: ··Tne 1act: t:nat: t:ne agent: act:ea 1n n1s own 1nt:erest:s ana 1n 1ra1 of his principal will not relieve the principal of liability if in fa the agent's act was in other respects within the scope of Ii apparent authority." t21 We reiterate, though there was a contract between the parties could not be enforced. Having held that the agent/ employ1 acted outside the scope of her ostensible authority, 1 requesting the appellant to deposit money into her person account, the respondent is not liable for any claims, sought the matter. The appellant is not entitled to orders for specii performance, declaration that he is a bona fide purchaser fi value without notice and an order vesting the property to hir We find no merit in all the grounds of appeal. J. O CONCLUSION ➔ .1 The appeal is accordingly dismissed. The decision of the Cou below is upheld. Costs follo the event. ................. . .......•............. M. J. Siavwapa JUDGE PRESIDENT ••••.••.......•. •... ........... •••••••• F. M. Chishimba . ................... ~ -....... . A. N. Patel SC ~OURT OF APPEAL JUDGE COURT OF APPEAL JUDGE