Charles Mumba Kapoba v Robinson White Moomba (SCZ APPEAL No. 30 of 1993) [1993] ZMSC 152 (4 November 1993)

,, IN THE SUPREME COURT OF ZAMBI~ SCZ APPEAL tJo.30 of 1993 I IOLOEN I\ r LUSAfO\ (CIVIL JURISDICTION) n E T H E F. N : Cl IARLES MUMM KAP OBA ancl ROiHNSON ~JIHTE MOOMBA APPELLANT RESPONDENT Coram: Sakala, Chaila and Muzyamba, J. J. J.s. 21st September an<. I I. Ith November~ 1993 For the-~ Appellaot : E. B. M. Mwansa of EOM Ch.ambers For the Respondent. : A. M. Wood of O. M. l<emp and Co. -·----·---------------- :'iuzyamba., J. S. r. J~livered the judgment of the court. Tl1is ls f.ll'I D.ppeal ngninst ;:i audgmt:)nt of the lligh Court clecidlng that U1,'? C(mtract of Sale dat~cl 11th 1•iay, 190/ wus valid and binding on both parties and for orcler-ing specific p(~rformance of th:~ said contract. In ou1· Judgment W-9 wi 11 refer to the appellant as defendant and n?spomii:~nt as plaintiff 'v1hich i~; what l:ht'!Y \>1erc in the court below. Th,2 Fi.lets of this ca;je ore that the defendant is the registered own:i1 uf a farm kn(Jwn as th~~ Rernaininv f:xte11t of Sub-division 'A 1 of Farm Number 630 11Ma1··ydale 11 Lusuku comprising (1f 4G2.92,1~ hectnt·t1s. It ~·1ould appear that after ucquirin9 tllu form the clefoncl,mt mortgagecl it to Agricultural Finance Company (h~rel aftt1 r rofoi'red to as AFC) for an undisclosixl amount. As at 30th September, 1986 tile defomi.'.mt's debt to l\.f. C. stood at K1 11, 9G3 ... ~9. On 6tli January, 1981 A. F. C. \-1rote to the d2femlant, document •10 in t:111.: r E1conJ ol' ~pp-:!al. that its Ooard of Oitcctors J2/ •••• J? had decided tilnt the fnrm sl1ould !Je sold to r~duce his debt and that he should vacc1te the farm. It i,muld appear that A. F~c. did not implement the Board's clecisio b~~car.1sfJ on Gi~h 1Jurm, 190G tflo defend\1nt. t!10ugl1 i'1ta <lcnh~d this in the court below, t·1rote a 1~u1ir lo /\. F. C.~ docuroont 41 in the record of appeal, saying that he \~ante to sub-diviclc the form and sell to the plainti l'f 694 acres for K60,000-00 in order to ,~-~cJUCf? ttl<i! d~bt:. On ;3th i\!IQUSt, 19tlt) A. F. G. responded by saying that it. could not nuU1oi'ise a sub-division and advised tha <lefendant to sell the whole farm to th plaintiff or any other interested p('.]r~;wn. rl1is is cont.ainecl in document 42 in the t(~conl of nppt:rnl. fhenD accCJrdin•J to t!H~ plainliff I the defendant. on 14th August. 1906 offorod to sol l the ~,hole farm to him irnd \·Ii th t!1at offer he applied to Zambiii Agricultural o~vc'. Jlopment Banlc for f.tmmcial assistance to buy the farm.. There is eviclenc~ on , ... ecorcl fro111 PH.3, Hr .. Mich~llo that the plaintiff 1s application was ar,provP.d oy the hank but could not be disburs(;!d because the banfc-was merging with Lima U~ml<.. the successor of II. F .c. It is curn1non ground that subsequent to the off~r tl1'2 plaintiff, \~it.h tiHi defendant's permission or licence moved onto the farr1 in Mow~mb~r. 1906. Later both parties enguged Mamanyanga·and Co. to assist them fr the transfer of the farm. Then, uccor<)ing to the plai ntif F, Mamanyanga and CompanJ prepared a Contract of Sale nt page 126 of ttle r-ecord of appeal and on 15th Decembr 1906 he and the defendant signed the contract in Uie presen:~,of some witnesses. Tt: defendant, while conceding that l·lamanyanga and Company were his long standing lawy,. denie<l slun!ng ttla contract saying Ile did not lrnow ll0t'I to write and sign as he 1-,as blind. Tile defendant called Mr. _Mamanyanga of Mamanyanga and Company as his wltnes The later contratlicted Um defendant and saicl that the defendant signed the contrac in !lis pr,~senco. Suhsequ~mt to tile signing of tile contract a state consent ·was appl kc. I for and obtnined for K160,000-00 anc! \·!hem it expirecl it was renewed, docurnr J3/ ••• J3 !J2 11ml 53 in th<~ record of appe"'t l. Altl10ugt1 t1'1e defendant denied obtaining tile cnnsent Mr. llrnnm1yar1ga testified that be>th parties jointly pursued the application for and obtained the c(ms~nt. Com;)letion of the transaction did not take place as sp11cifiti(I in tl1e coml.ltions of snh~ b~caus&: ns. explained earlier on, the Zambia Agricultural Devi~lop1m~nt Ban!, di<I not release the funds to the plaintiff due to impending mcrqer t'li th Lima Banlc and tl't(~ plalnti ff had to loolc elsewhr-~re for f inanci. assL,;tnnc~. ~ki t·mnt t,) his Bank, Zambia Mational Commercial Bank Limited who appro his r.1p~,lic1tlon for a lonn of K130,000-00. As n result, a Fresh contract of sale 1-•,as t!ra~•m 1·1tlld1; l1ccc,rcl.ing to u,e plaintiff. w,1s exP.cuted by both parties on 11th M 1907. Th@ defendant denied signing tile SE:JCOrn.l contract and alleged that it was a forg~d doc1m1ent, J.atP.r Znnibir.l. National Commercial Bani( disbursed the loan anc.l paicl 1<1 n, (j(jG-97 to Umn ilAnlc, the successor of (\. F. C,. and the latter surren<Jered the Title> Df.:ieds for thfl farm to Zambi<t Nntional C()mm8rcial Daul< as security. The balan out of 1(1:30,0UO was, r.iccording to the plaintiff, paid to the defendant and adnowlec/ged by tlie def P.ndant on document 49 of the record of appeal dated 29tl1 Jun l9B7. Tim tlefendant cleniecl signing tllis document ilnd said that his signature was fm~ned and tlv1t the rmly payment he received ftorn the plaintiff was an amount of 1<7, 000 for cattle tl1e plaintiff f1ot r.m credit. These are the facts. Hr. M1-1ansa 11as advcinced ttire11 grounds of appeal namely: 1. That the lower court ,nisdjrected itself to have held that tliere was a Vr.'lli<I and binding contract of sale ber.1-tcen the def{~~1dant nnd tlJA. plaintiff. ?.- Tht.rt the lo11or court 111isdirect.ed itself to have held ttiat tlie defen<lant • s pl<~a of frnud o.ncl forgery could not stond • 3. That t11e lob1er court misc.lirocted its:.:Jlf to have rnacle an order for spec i f j c p-~r- f onnnnci:; of tile cont1~act nf su le. J4/ •• ,. In support of grotm<Js 1 w1d ,! f-ir. M1--1c.msa submitted that it was crn11,11on cnus0 tllnt the first contract or sale lli'Hl Gxpi rell and could therefore not br. nwi vr~d. That th~ second contract of sale t·tas prepared by the plaintiff himself ,111d not lla1nan.vanria and Comp,HIJ' ~nd tl1<1t tl"h) dofonclant • s signature on it was forged and tlmr<-1fore that tlrn f.!ntir(l doc1J11c11t. was a forgery. That the learned trial judge wns Uiercfor<) ~-1rong in deciding 'tliat it \titls a val id b1ncllng contract. Me further submittect that tr1e pluintiff volunteered to cl~ar tlla defendant 1s loan with A. F. C. Ir~ otiH-:!r Nnrcis, h9 ~-ws t1 "Father Ci11~1stmas 11 nho could not be heard now to say that tltd dl-!l'on<.lant SilOUld COflVQY tile farm to ilil!I. In response. tk. Wood submitted tlrn t neither fraud nor forgery wa prov1.~d by tile cl<~fendant against the µlainti ff. That the evidence of the defendant on tl1i!\ alleuation took the pattc~rn cif bare denials that he did riot si_gn any of the . documents on record. · That tl1e cJefe11dant did not adduce any evidence to prove that tlle pl,1 inti ff had forged his signature cm these clocum_ents. He--further submitted thut in conveyancing a contract of salo doas not automatically lapse by mere non pi::wforinnncC! of 111 tl1er purty. That to !lave no effect such a contract has to be r-csr.inclecl aft.~r due notice of completion is giv<:!n to the defaulting party, which wus not done in this case. Tha.t the learned trial judge was therefore right in disrnissinq tile allegations ()f fraud and forgery tind in tleciding that the second cont1~,1ct was Villid and bin<linu on J.x,th parties and that it had ravlvatJ the first contract. That in tht~se circumstances~ it could not be said that the plaintiff volunteert1cl to settle Che defendant's debt with /\. F. C. or indeed that he was Fathm Christmas. II~ t11ercfor~ urned th~ court to dismiss tl1e appeal. l·/Q have car~fully co11side1~P.c1 tl1e submissions on both sid~s. In Ills juclgrw~nt at payes 19 - 20 and 21 ... 22 the lenrned trial judge <.lealt with these matters adequately. H~~ Si.lid: J5/ ••• 11nia evidence adduced by both parties ancl thoir witnesses shows that the Def emli.int acc~!ptecl th 1 s payment i nsp i te of his insi!itr-mce Lhat he lme11J nothing about the payment and did not auttmrise It. His flat. cienial is not substatiated by any evidon, at all. The Defendant's evidence in this respect further shows its L1ncreditworthyness to SU. I' the least. The Defendant's attemp to USf..! his loss of si~Jht ns a pretext for not knowing many aspects of the s~cond contract of sale cannot be sustained because he has contradictP.d himself materially to show that he was lying in that there is ample evidence that after all he knew am! signed the first contract.. There 1s no truth that he did not sign the socond contract of sale. Ba that as it may be the first contY'ec t in as far as tile evidence goes 1•1as not 1"escimJet1 by the Deffmdant~ the parties continued to make efforti to C'ornplete it. Tl1ey 11ent togatl1er to get consent. to the banks to search for money until tho Plaintiff succeeded. The Plaintifl paying c,ff of the Defendant's debt wi ~h the Agricultural Finance Company Limited/Lima Bani< ~'fhich debt if unpaid would have led obviously to th'l rt~possession and sale of the farm bJ' the Lima Oanl, revived the first contract because 1 t had after all been not killed any one of the parties ............................... , I must llasten to say that whilst the plea of Fraucl and forgery were entered on record the evidence that was adduced in court was not clear and sufficient to support the plea .. As I ilavt: already pointed out nnd found that the defendant in fact can sign and did sign the contract of sale, this was clearly confit1110cl by tile leorrn~cl t1dvocat~ he once engaged in the transaction in dispute~ It is my humble vi~w that the defendant was attemptin~ to escape from l1is obligath1ns emanating from the contract of sal l1e ce>mmitted hirnsel f to but this was too late in the day - the evGnt IHHI already be,m done. In the same vein the defendant attempted to say that there 1>1us no Consent and that otherwise it iH1<l expired. 11 J6/ ••• He (-mtirely agree with th1: above learnE?d trial JuclgQ 1 S reasoning, a6 beciluse tik1 d(~fcmlll.nt 11avlng complet~l. Y deniGd tlle fact that he offered to sell the Fann to t.t1c plaintiff and tilat il0 signr.cl th~ first contract of sale and also that he: obtflln~d tho st:at.e•s consent to assign \~hen infact lie made the offer. signed the contrnct irnc! obtnir11~d the consrmt.~ ti1B court Has perfectly enti tle(I to treat him as an um·elir1blo witness and to ncc\-1pt, tha plaintiff's evidence that he, ·the defendant in Fact si9ned thP. s(icon<I contract. Me would add that the learned judge was also p0rfectl.11 ontitled to occ~pt part of Mr~ 1-lam,·myo.nga I s evidence and to reject the othnr i . ~. to accept his evid(311ce t '.1at tile dafemlant signed the first contract in hi presence am! to roject llis evidence that he did not prepare the second contract becaute as rightly submitted by r1r. Hood a contract of sal~ of land c,r an interest in land does not auto111acicully lapse or C(;!as<~ to have effect by default on th~ part of one party. To la[)se or havo nlD affect it must be properly rescinded after due ..... .... "."•- ... notice c,f completion is given to the defaulting party. This was not done in this case. It 1s quite C)bvious theroforo thilt Mr. lfamanyanga denied having prepared the contr<1ct in ortl1~r to prot€lct himself. Mr. Mwansa's arguments must ther<;fore fail. !laving upheld the leilrne<l trio. I judge's reasoning that there was no fraud and fcwg,1r. Y ancl that the second contract was valid and binding it would, in ou1· vi~w tll~~refota, bE~ an academic exercis{J to comment on Mr. Mwansa 1 s last submissicm tllat tllere was no memorandum to satisfy the Statute of Frauds in this tr·ansa<:tion. It is al5o our vin~-, that this is a proper case for the granting of an order of specific perfor111anc<~. \fa woulcl tllerefote, for the foregoing reasons. unhold the lower court dee is ion and disniiss the app~1al with costs to be taxed in clefaul t of agreement. J7/ ••• ,J 1 In passin~1 off, \·10 nC)te tlMt Um learned trial judge ordered that the pL1luti ff, on l1is mm undertctking. do k~ .. ~P tile defendant on the farm. We cnnnot fincl such mi undc:?rtakin9 (m the evid~nce on record. In our view this ordei is rmt only urn:onscionablo but Iikoly to stir serious trouble between the parties. However, since there is no cross appeal, wu loavu it at that • .. . .. .. . . . . . . . -....... . E. L. Si\K/·\L/\ SUPREME COURT JUOGE . . . . . . . . . . . . . If • - • • • • • M. S. Cli/\ILA SUPREME COURT JUDGE ···················· U. M. MUZVAMDA SUPfiEME COURT JUDGE