Simwanza v Mvula and anor (SCZ Appeal No. 12 of 1991) [1991] ZMSC 53 (3 October 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 12 of 1991 HOLDEN AT LUSAKA (Civil Jurisdiction) ARIZON SIMWANZA Appellant and CHILENA MVULA JAMES DAKA 1st Respondent 2nd Respondent CORAM: Sakala, Chai la and Lawrence JJJ. S. 30th May, 20th June and 3rd October, 1991 Mr. E. B. Mwansa of EBM Chambers, for the appellant Mr. S. J. Banda for the respondents JUDGMENT Chai la, J. S. delivered the judgment of the Court. Case referred to: (1) / Vincent G. Mijoni vs Zambia Publishing Company Limited The appellant's case was that an oral contract was made between himself and the respondent in 1979 and the agreed purchase price was K5.000.00 which was paid through Mr. Tembo the respondent's agent in instalments the last of which was on 30th October, 1983. After payment of the last instalment was made the respondent informed the appellant that he was going to sell the property to some one else Mr. James Daka the second respondent. The appellant further stated that in 1979 the respondent orally agreed to sell him sub-division 49 in Buckley township at an agreed price of K4,000.00. At the time of the agreement the respondent was with Mr. Tembo. ;The appellant, when the respondent told him that he had no ready money to pay him, chose Mr. Tembo to be his agent and advised the appellant to pay the money through the said Mr. Tembo since the respondent was then working in Kabwe. The payments for the plot started in January, 1979 and the appellant paid through Mr. Tembo. After each payment Mr. Tembo was made to sign for the amounts he was receiving. The receipts were exhibited and were made part of the agreed bundle of the documents. The appellant paid a total of K5,000.00 and this came to that amount after the respondent's agent Mr. Tembo told him had increased the price to K5,000.00, The /2....appellant .... - J2 - appellant continued to pay. In 1982 the respondent went to see the appellant at his workshop. He told him to stop cultivating on the land since he had only received K2,000 of the amount required. The appellant explained that he had paid the full amount to Mr. Tembo and he asked for the title deeds. The appellant and the respondent went to see Mr. Tembo and Mr. Tembo agreed that he had received all the money. The documents which were signed by Mr. Tembo caused some confusion as one document stipulates that Mr. Tembo received K600 as a loan. The appellant, however, denied that was a loan to Mr. Tembo. But he maintained that was part of purchase price. The appellant stated that he is staying at the plot although there is a slab there which was put up by Mr. James Daka. The appellant asked for specific performance of the contract he entered into with the respondent. He further asked for damages for breach of the said contract and any other remedy which the court may deem fit. The respondent agreed that there was an oral contract to sell the plot in question but he denied having appointed Mr. Tembo as his agent to receive payments. His case was that he never received any payment, although the appellant knew the respondent’s residence in Matero. He never received any money from the plaintiff. The learned trial judge considered the issues before her and she came to the conclusion that there was no sufficient memorandum in writing and dismissed the action. Mr. Mwansa has submitted on behalf of the appellant three grounds of appeal. The first ground is that the lower court erred in law and fact to have held that there was no sufficient memorandum in writing to evidence the oral contract between the appellant and the respondent. Mr. Mwansa argued that the requirements of section 4 of the Statute of frauds 1677 as regards the contract of sale of land were met through receipts issued to the appellant by the respondent's agent Mr. Tembo who had Introduced the appellant to the respondent for the purpose of purchasing the property. Mr. Mwansa argued that some of the said receipts in fact even identify the areas where the property is situated being in Buckley and the money paid at a given date. Mr. Mwansa has further argued that it was also a misdirection by the lower court to have held that the said receipts cannot be relied upon because they are /3....photostat ........ - J3 - photostat copies and not originals. The said receipts were part of the agreed bundle of documents and the originals were shown and produced to the respondents advocates when inspection was done before the matter was set down for trial. Mr. Mwansa has argued that Mr. Tembo who wrote these receipts admitted both in evidence in chief and cross-examination to have written and issued the said receipts. Mr. Mwansa has argued that the court should have relied on the receipts. Mr. Banda, counsel for the respondent and Mr. James Daka has argued that there was no contract of sale and he has cited the case of Vincent Q, Mijoni vs Zambia Publishing Company Limited (1). He has argued that there must be sufficient memorandum. Mr. Banda has further argued that the documents before the court if they were to be relied upon will not still constitute a memorandum. He argued that the receipts did not constitute sufficient memorandum. Mr. Banda argued that there was no agency relationship between Mr. Mvula and Mr. Tembo. The evidence in the court below revealed that the appellant was introduced to the respondent by Mr. Tembo and the evidence clearly showed that some agreement was made orally to purchase the property. The dispute, however, arose on payment. The receipts signed by Mr. Tembo were produced. The receipts were copies. The learned trial judge decided not to rely on them because they were copies. We agree with the argument put forward by Mr. Mwansa that there was no need to produce original documents since the receipts were part of the agreed bundle of documents. The learned trial judge misdirected herself when she decided not to rely on the copies of the receipts on the ground that they were copies of the receipts. We have observed that the receipts themselves taken into consideration did not come to a sum of K4,000 the purchase price. These receipts fallshort of the agreed contract price. Mr. Mwansa further argued in his ground of appeal that there was a letter which the appellant wrote to the lawyer and urged the court to take into account the contents of this letter. He has argued that this letter satisfied the requirements of the statute of frauds. We are satisfied that Mr. Tembo was an agent in the matter. We have considered the documents Mr. Tembo signed. We have taken into account the signing by Mr. Tembo but we are of the view that those receipts did not constitute the memorandum as required by statute of frauds. We have /4....considered .... - J4 - considered the letter written and signed by the respondent; the letter was written many years after the oral contract had been made. We do not consider this letter to satisfy the requirements of the statute of frauds. The first ground therefore fails. The second ground is that the lower court erred in law and fact to have held that there was no part performance. Mr. Mwansa argued that the appellant paid purchase price to Mr. Tembo who subsequently issued receipts to the appellant and finally allowed the appellant to occupy the property by cultivating on it. Mr. Banda has maintained there was no part performance, lie has maintained that there was no possession given to the appellant. The evidence in the lower court on the possession of the property was quite confusing. The appellant admitted that the slab on the property was put there by Mr. James Daka* That clearly indicated that Mr. Daka had given possession. We have considered the argument and the evidence before the court and we are in complete agreement with the learned trial judge’s conclusion that there was no part performance. The appeal on this ground fails. The third ground is that the lower court erred in law and fact to have held that the agency relationship between the respondent and Mr. Tembo was not proved. Mr. Mwansa argued that Mr. Tembo had been the respondent's agent. Mr. Banda argued that there was no relationship. We have considered the evidence before the lower court and the arguments put forward by the two advocates. It was clear that the appellant was introduced to the respondent by Mr. Tembo. Mr. Tembo was asked to look for a buyer which he did. Mr. Tembo received some money and issued receipts. As we have already observed the receipts did not tie up with the agreed price. The learned trial judge in her judgment came to the conclusion that the money received by Mr. Tembo never reached the respondent and the learned trial judge on the mode of the payment accepted the evidence of the respondent. The learned trial judge came to the conclusion that, although Mr. Tembo was asked to look for a buyer, he was not, however, authorised to receive the money on behalf of the respondent. Even if we were to find that Mr. Tembo was an agent for the purposes of introducing the appellant to the respondent, that does not prove that Mr. Tembo passed the money to the respondent. We do not dispute the findings made on payments. The appeal on this ground also fails. /5... Mr. Banda.... - J5 - appellant cannot ask for specific performance. Mr. Banda has further argued that if damages were given, there would be a great hardship to the respondent. We have considered Mr. Banda's argument and we agree that the plaintiff took too much time in seeking remedy. We agree that there was a big delay. The plaintiff's case for specific performance falls. The plaintiff has asked for damages; we agree with Mr. Banda's contention that there was too much delay on the part of the appellant and it would cause alot of injustice to the respondent and Mr. James Daka. The appeal is therefore dismissed with costs. E. L. SAKALA SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE A. R. LAWRENCE SUPREME COURT JUDGE