Charles Makanda (Administrator) v Nayee (Appeal 207 of 2000) [2002] ZMSC 127 (25 January 2002)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 207 OF 2000 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CHARLES MAKANDA APPELLANT (Suing as the administrator of the Estate of the late J. C. Makanda) AND MANGALDAS AMTHARAL NAYEE RESPONDENT Coram: Ngulube, CJ, Lewanika, ADCJ, Chibesakunda, JS On 27th September, 2001 and 25th January, 2002. For the appellant: Ms I. SUB A OF KUTA CHAMBERS For the respondent: S. S. M. MUZYAMBA OF MUZYAMBA & CO. JUDGMENT Lewanika, ADCJ, delivered the judgment of the court. When we heard this appeal, we allowed the appeal with costs and said we would give our reasons later and we now do so. This was an appeal against the decision of a Judge of the Higher Court refusing to grant the appellant an order of Specific Performance of a contract for the sale of Stand No. 2762 Livingstone. There was also a claim for special damages being the difference in Legal fees, stamp duty and registration fees as they stood in 1987 and as they would stand at the date of the judgment. The evidence on record is that the appellant was the administrator of the estate of the late Christmas Justine Makanda who entered into a contract with the respondent for J2 the sale of Stand No. 2762 Livingstone at a Price of K45,000.00 on the 22nd June, 1987. The parties signed a law Association of Zambia contract and conditions of sale. The special conditions were that the purchaser was to pay a deposit of K30,000.00 and the balance of the purchase price was to be paid on completion. There was evidence that the purchaser was let in possession and carried out developments on the said property. The purchaser passed on before completion and a dispute arose between the parties which led to the present litigation. The learned Trial Judge found as a fact that the respondent owned Stand No. 2762 Livingstone, that the deceased occupied the property before the contract of sale was concluded and that he carried out improvements on the said property. However the learned Trial Judge also found that, "I am afraid the purported contract between the plaintiff and the defendant was not binding for total failure of consideration by both parties as I am not satisfied that the deposit was ever paid." This finding flies in the teeth of the evidence having regard to the evidence of P. W. 2 who not only signed the contract of sale as a witness, but also witnessed the payment of the K.30,000.00 deposit by the deceased to the respondent. This finding is even more startling given the following comments made by the learned Trial Judge. "In passing I wish to make a comment that the defendant in this case was such a very unreliable person that he even at first denied knowledge of wanting to sell this piece of land to the deceased when in fact he had even signed document No. 4 -5 in the bundle of documents. He is lucky not to have been compelled to perform his part of the contract. Had there J3 been conclusive evidence of payment 1 would have found it easy to find for the deceased's estate." In our view there was conclusive evidence of payment of the deposit on record and it was for this reason that we allowed the appeal and ordered specific performance of the contract of sale with costs. The costs are to be taxed in default of agreement. M. M. S. W. Ngulube CHIEF JUSTICE D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE 1* I I