Chibwana & Another v Chitauka (Appeal 41 of 2015) [2017] ZMSC 103 (12 September 2017)

SELECTED JUDGMENT NO. 49 OF 2017 P. 1635 IN THE SUPREME COURT OF ZAMBIA Appeal No. 41/2015 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SAIDI CHIBWANA LYNN BAINES AND iE P7 COURT OF 20!! 2047 - 1 ST APPELLANT 2ND APPELLANT MARRIAN MUTINTA CHITAUKA (suing as Administratrix of the estate of the late HACHAABWA CHITAUKA) RESPONDENT CORAM: Mwanamwambwa DCJ, Kajimanga and Kabuka, JJS, on the 5th day of September, 2017 and 12th September, 2017. FOR THE APPELLANTS: Mr. M. C. Hamachila, Messrs. Iven Mulenga & Company. FOR THE RESPONDENT: No Appearance. JUDGMENT KABUKA, JS delivered the Judgment of the Court. Cases referred to: 1. L'Estrange v Graucoub [1934] 2KB 394. (cid:9) I 2. Carlill v Carbolic Smoke Call [1892] 2 QB 484. 3. Brodgen v. Metropolitan Railway [1877) A. C. 666. 4. Storer v Manchester City Council [1974] 3 All ER 824. 5. Zambia Consolidated Copper Mines v Eddie Katalayi and Max Chilongo P.1636 [2001] ZR 28. 6. Leeman v Stock [1951] ALL ER 1043. 7. Vincent Mijoni Vs Zambia Publishing Company Ltd, Appeal No. 10 of 1986. 8. Wesley Mulungushi v Catherine Bwale Mizi Chomba [2004] ZR 96. 9. Justin Chansa v The Lusaka City Council E20071 ZR 256. Legislation and Other Works referred to: The Intestate Succession Act, Cap. 59 SS. 3, 20 [2]. Barnsley, D. G, Barnsley's Conveyancing Law and Practice, 3rd Edition, [1988], London Butterworths. Hornby, A. S, Oxford Advanced Learner's Dictionary of Current English, 6th Edition, [2000], Oxford University Press. By a judgment dated 3rdSeptember, 2014, the learned High Court judge found that the 1st appellant had not signed an agreement relating to the sale of Plot no. 10280, Kabwe. For the said reason, she held that, the requirements of the Statute of Frauds Act, 1677 were not satisfied and that, the agreement was therefore not valid. It is against that finding that the appellants now appeal. J2 P.1637 The background to the matter to the extent that it is relevant for the determination of this appeal is straight forward. Mr Hichaarnbwa Chitauka and the 1st appellant were at the material time both Councillors at the Kabwe Municipal Council ("the Council"). They were also friends. Apart from being a Councillor, the 1st appellant was also a businessman involved in the buying and selling of land, to members of the public. In the year 2009, there were a number of pieces of land in Kabwe District over which there wcre disputes. It was for the said reason that the Land Management Committee of the Council decided to undertake an audit to identify the various plots over which there were disputes. They limited themselves to the period between 1st June to 161 October, 2009. After undertaking this task, a list of the properties with disputes was tabled before the Kabwe Municipal Council meeting. By Resolution No. SPWD/29/11/2009, the Council resolved that, the disputed plots be considered for re-allocation. J3 P.1638 Following the said resolution, the 1st appellant and his friend Mr Hachaambwa Chitauka, applied to be allocated a plot each, with the latter applying for Plot no. 10280 Luangwa township, Kabwe ("the Property"). The Council approved the applications on 12th. January, 2010. By a letter dated 5th February, 2010, the Council wrote to the Commissioner of Lands recommending that Mr Hachaambwa Chitauka should be offered the property. On 13th April, 2010, Mr Hachaambwa Chitauka signed an agreement evidenced by a hand written one paged document, appearing at pages 45 and 67 of the record of appeal. This agreement states that, Hachaambwa Chitauka had decided to sell 'his' property to Saidi Chibwana, the 1st appellant in the appeal, at the purchase price of Thirteen Thousand Kwacha (K13,000.00) rebased. That of this amount, the buyer had paid him Five Thousand Kwacha (K5,000.00) rebased, the same day, and that the remaining balance of Eight Thousand Kwacha (K8,000.00) was to be paid after the letter of offer for the property was received from the Ministry of Lands. J4 P.1639 Two weeks after that transaction, the 1st appellant received the sum of Twenty-Five Thousand Kwacha (K25,000.00) rebased from the 2nd appellant, to whom he had apparently, equally sold the property after he had purchased the same from Mr. Hachaambwa Chitauka. The receipt reflecting this payment appears at page 52 of the record of appeal. Mr Hachaambwa Chitauka who had been ill during this whole period finally succumbed to the illness and died on 301h May, 2010. Following his death, his relatives discovered that the 2nd appellant had moved on to the property in issue and had started developing it. When efforts to engage the 2nd appellant to dissuade her from continuing with the developments failed, on the 6t11 of June, 2011 the family of the deceased took the issue up with the Kabwe Municipal Council ("the Council"). Acting on that complaint, the Director of Engineering Services issued a 'STOP ORDER NOTICE' which was directed at the developer of the property. (cid:9) The notice ordered that any developments being undertaken on the property be halted. The is developer was also requested to report at the Council with evidence P.1640 of- (i) a letter of offer for the property; (ii) scrutiny fee; and (iii) approved drawing plans. The record shows that, lawyers were engaged by the parties thereafter. From the correspondence exchanged by the lawyers, it appears there was no dispute that Mr Hachaambwa Chitauka ("the deceased") and the Is, appellant had entered into some arrangements involving the sale of the property in issue. That whereas a part payment of K4,900.00 was acknowledged as having been received, there was no evidence of payment of the balance. As the parties failed to agree on the way forward, on 20th August, 2012 the deceased's sister obtained an order of appointment as Administratrix of the deceased's estate. On 6th September, 2013, she took out a writ from the High Court at Kabwe against the 1st and 2nd appellants respectively, as defendants. The claim was for damages for trespass by the defendants on the J6 P.1641 property which she claimed was allocated to the deceased by the Council. She further sought an order of interim injunction to restrain the appellants from trespassing on the said property, which was granted, ex-parte. In his defence filed in the matter, the 1st appellant denied the claims and averred that, the deceased had received the sum of K5,000.00 from him, upon which the 1s1 appellant became the bonafide owner of the property. According to him, after the sale, he followed the appropriate Council formalities required to change ownership from the deceased to the 2nd appellant, Lynn Baines. In her defence, the 2nd appellant also asserted that, she had followed all the required formalities before purchasing the property from the 1st appellant on 19th March, 2011. That as the property at the time had already been sold to the 1st appellant, it did not belong to the deceased's estate. In her evidence given at the trial before the High Court, the respondent contended that there was no evidence showing that the 1st appellant had fully paid for the property. As such, that the J7 P1642 property belonged to the deceased's estate. It was her further evidence that, after the deceased's death, when she was pursuing the issue of title deeds, she was informed that the property was now being processed in favour of the 2nd appellant. This was so, as the 1st appellant had informed the Council that he had earlier bought the property, from the deceased after which he sold it to the 2nld appellant. (cid:9) It is for that reason, that the 1st appellant was requesting for a direct transfer of interest in the property from the deceased to the 2nd appellant, as the person who had bought it. In his testimony, the 1st appellant insisted that he had bought the property from the deceased. That he initially paid K5,000.00 and later, after completing the payment, they had gone together with the deceased to the Council where change of ownership was effected. (cid:9) That the 2nd appellant had first approached him to inquire over the property in April, 2010 and he sold it to her at K25, 000.00 (rebased). Thereafter, he assisted the 2nd appellant with the formalities required by the Council for the title deeds to be issued directly in her name. According to the 1St appellant, he believed that the deceased had died sometime in J8 P.1643 2011. He admitted that he had no evidence to confirm that he had fully paid the balance of the purchase price for the property. He also confirmed that he did not sign the agreement of 13th April, 2010 by which the deceased sold him the property but insisted that it was witnessed by two people. One of the witnesses who allegedly witnessed the signing of the contract by the deceased, in his evidence said that, there were still outstanding amounts on the sale. That he only witnessed the payment of K5, 000.00. He also said that the sale transaction was only effected after the death of the deceased. The 2nd appellant in her evidence told the trial court that she was offered the property for sale by the 1st appellant sometime in March or April, 2010. She inquired whether it was his property and he confirmed, saying he had bought it from the deceased. When she asked him to show her the documents to prove this assertion, the P31 appellant took her to his office where he showed her the sale agreement he had entered into with the deceased. As she was satisfied with the document, she took the original and left him with Jg P.1644 copies. The 2nd appellant also confirmed that, according to the same document that she was relying on, the land was not fully paid for by the 1st appellant. After hearing this evidence, the trial judge considered that that the contract was not signed by the purchaser who is the 1st appellant and that this raised the question whether a failure to sign a contract by the purchaser, amounts to a breach of contract or makes the whole transaction null and void. She also considered arguments raised by Counsel for the respondent that the document the appellants were seeking to rely on did not meet the requirements of S.4 of the Statute of Frauds Act, 1677 for a valid contract of sale. Section 4 states that: "No action shall be brought upon any contract for the sale or other disposition of land or an interest in land, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person there unto by him lawfully authorised." J10 P.1645 Accordingly, the learned trial judge came to the conclusion that, if a buyer signs a contract he is bound by it, and conversely, if he does not sign, he is not bound by it. The case of L'Estrange v Graucoub' was relied upon. She further found that, the requirements of section 4 of the Statute of Frauds had not been met and that, the 1st appellant did not acquire any rights in the property, nor did the 2nd appellant, who purported to buy the same from him. The conclusion of the trial judge was that, the property remained that of the deceased, and upon his death, formed part of his estate. It is against those findings that the appellants have now appealed to this Court, on three grounds of appeal, stated as follows: 1. The learned trial judge erred both in law and fact when she held that the contract of sale of Plot No. 10280, Luangwa township, Kabwe entered into between the 1st appellant and the deceased was non-binding due to the non-availability of the 1St appellant's signature. Jil P.1646 2. The learned trial judge erred both in law and in fact when she held that Plot No. 10280, Luangwa township, Kabwe, formed part of the estate of the late Hachaambwa Chitauka. 3. The learned trial judge erred both in law and in fact when she failed to address third party rights in relation to the 2nd appellant as she was an innocent purchaser for value without notice of any adverse claims in relation to Plot No. 10280 Luangwa township, Kabwe, at the time she purchased the said property from the 1st appellant. In support of the grounds of appeal, written heads of argument were filed by Counsel for the appellants. The respondent filed heads of argument in response. When the appeal came up for hearing however, only Counsel for the appellant was in attendance and he indicated to the Court that he would be relying on his heads of argument. When we asked him whether he wished to say anything in reply to the respondent's heads of argument, he informed us that he had not been served with the same. We accordingly directed the Clerk of Sessions to avail him a copy and J12 P.1647 gave him a maximum of four (4) days within which to file written submissions, in reply, should he deem it necessary. At the time of writing this judgment, there were no submissions in reply filed on record. Our inquiry through the Clerk of Sessions disclosed that, Counsel for the appellants had communicated that he would not be filing any submissions in reply. We will accordingly proceed to deal with the appeal on the basis of the written arguments on record. The gist of the appellants' written heads of argument, in ground one, is that, an agreement can be inferred from the conduct of the parties. The cases of Carlill v Carbolic Smoke Ball' and Brodgen v. Metropolitan Railway,3 were cited in advancing the principle that, the conduct of another party within the scope of the offer, does amount to an agreement enforceable at law and that, acceptance of a contract can be inferred from the conduct of the parties involved. Counsel also cited the case of Storer v Manchester City Council', as held that, the contract of sale of J13 P.1648 Municipal Council houses was concluded irrespective of the non- availability of the defendant's signature to the contract. On ground two, Counsel relied on Section 3 of the Intestate Succession Act, in advancing the argument that, what belongs to a deceased's estate is limited to only that which the deceased had control of and was entitled to during his life or that which he would be entitled to, had death not occurred. It was in this regard submittcd that, the deceased's estate did not have possession of the property, as interest in the land had passed to the 1t appellant before his death, who then, became the owner of the land and was entitled to the benefit thereof. It was further argued that, section 20 (2) of the Intestate Succession Act provided only for property which the deceased was entitled to prior to his death or that which accrued to him, by virtue of his death. Finally, the arguments on ground three were to the effect that, the court should have considered that the 2nd appellant was an innocent purchaser for value without notice. The submission here, was that, the 2nd appellant's undertaking to satisfy herself of i14 P.1649 the 1st appellant's right to assign the said property to her, was sufficient evidence of her being a boriafide purchaser for value. The case of Zambia Consolidated Copper Mines v Eddie Katalayi and Max Chilongo5 was cited in support of this submission. In their response to ground one of the appeal, learned Counsel for the respondent argued that, the issue on the particular facts of the present appeal, is not on the effect of section 4 of the Statute of Frauds as it relates to construing whether or not there was an agreement by considering the general intention of the parties. (cid:9) It was rather, the construction of the document in question. He observed that some documents dictate to the parties that they must sign, and where they so dictate, the effect of failure to sign cannot be the same as where the document does not have provision for a signature. Counsel pointed us to the document in issue in the present appeal and noted that this 'purported' agreement as it appears at page 41 of the record of appeal shows a provision which was marked for the buyer to sign, yet the buyer did not sign the J15 P.1650 document. The submission on the point was that, according to the law, someone can be found wanting if he does not sign a document when the signature is required. The case of Leeman v Stock' was relied upon to support the submission. Counsel further pointed to the fact that, there is no proof of full payment of the purchase price, save for the K5,000.00 paid out of the agreed sum of K13, 000.00 and the balance of K8, 000. 00 which was to be paid after the deceased received his letter of offer from the Ministry of Lands. It was Counsel's argument in this regard that, there is no evidence to show that the letter of offer to the deceased, which was the condition precedent for the payment of the balance, was actually issued. His submission was that, in the absence of evidence that an offer letter was received from the Ministry of Lands, it cannot be argued, as the appellants seek to do, that the requirements of section 4 of the. Statute of Frauds were satisfied. In the cases of Mijoni V Zambia Publishing Company' and Wesley Mulungushi v Catherine Swale Mizi Chomba8, which the J16 P.165 1 appellants sought to rely on, held to the effect that, an agrecment for the sale of land need not be in writing and a memorandum of it is sufficient. Counsel for the respondent noted that, in both those cases, there were clear offers and clear evidence. In the Wesley Mulungushi case in particular, the seller who had offered to sell the property at K120, 000.00, attempted to avoid to comply with the first offer by raising the purchase price to K300,000.00. (cid:9) In contrast, there is no such clear evidence of an offer letter in the present appeal, so Counsel argued. Coming to ground two, Counsel proceeded by arguing that, having dodged the process of signing the contract, the document was not binding; and the conclusion was thus inescapable, that the property remained the deceased's and after his death, it formed part of his estate. His submission was that, section 20 (2) of the Intestate Succession Act, did not apply to the facts of the case subject of the present appeal. On ground three, Counsel referred to the letter written by the Council advising that, allocation of the property in question J17 P.1652 should be changed from the deceased to the 2nd appellant. His argument was that, this letter was only written on 15th June, 2012 which was two years after the death of the deceased. His submission was that, at that point in time, no lawful change. of the property could be effected from the deceased to any other person without involving the Administrator of the deceased's estate. In the circumstances, that these joint efforts of the 1st and 2nd appellants do not make the 2nd appellant a bonafide purchase for value. Counsel also referred to the evidence of the 1st appellant, in cross-examination, where he admitted that there was no evidence showing that the entire purchase price of K13,000.00 was paid, save for the K5,000.00 stated in the contract. Further, that the 2nd appellant equally admitted that the only evidence she saw was of a part payment towards the purchase price as stated in the said agreement. The arguments on the point were that; the 2nd appellant proceeded to buy land not in the name of the offeror, but of the deceased, when she should have made inquiries as to whether there J18 P.1653 were any outstanding issues regarding the property. She however, chose to use the name of the deceased to effect change of ownership to herself. Counsel submitted in conclusion that, the case of Zambia Consolidated Copper Mines Limited u Eddie Katalayi and Max Chilongo which talks of the rights of the third party, does not apply to the situation in the present appeal, where the purchaser had reason to suspect there could be an adverse claim to the property she was buying. We have considered the arguments, submissions, the authorities relied on by Counsel, against the evidence on record. Although Counsel on both sides belaboured to argue the appeal based on the Statute of Frauds, according to 0.18/8/4 of the Supreme Court Practice (1999) White Book, for a party to rely on the Statute of Frauds, the same must be specifically pleaded. A glance at the pleadings in the present appeal, reveals that the Statute of Frauds was not specifically pleaded. by the appellants, but was sneaked in through submissions made by Counsel for the respondent, on conclusion of the trial before the High Court. On J19 IL P.1654 the view of the matter that we take, the Statute of Frauds was not properly referred to, to resolve the dispute in the circumstances of this case and should not have been considered by the trial court. The real issue disclosed by the evidence as we see it, is rather, whether at the time of the purported contract of sale, the deceased had beneficial interest in the property in issue, capable of being transferred to the 1st appellant or indeed, to any other person. This issue did fall for consideration by this Court in the case of Justin Chansa v The Lusaka City Council,' where we acknowledged that, applications for land by members of the public can take two forms. It can be made directly to the Commissioner of Lands or through the Council, as agent of the Commissioner of Lands. We went on to say that: "...it is also clear from the evidence that, where a member of public opts for the second route, the respondent (the Council) is only mandated, firstly, to advertise any land available; secondly, to receive applications from members of the public; and thirdly, to make recommendations to the Commissioner of Lands. The powers to allocate land and make an offer to successful applicants still remain in the Commissioner of Lands. The respondent only makes recommendation to the Commissioner of Lands. The Commissioner of lands after receiving these recommendations from the respondents has the discretion to either accept or reject the recommendations made by the respondent." (underlining for emphasis supplied) J20 (4 p P.1655 The evidence on record in the present case reveals that, the deceased was only recommended to the Commissioner of Lands to be considered for an offer in respect of the property in issue. The letter of recommendation reads as follows: 5thFebi.uary 2012 The Commissioner of Lands P. O. Box 30069 Lusaka Dear Sir CONSENT FOR OFFER OF RESIDENTIAL PLOT NUMBER 10280 We refer to the aforementioned subject matter and wish to inform you that Council under Minute SPWD/29/11/ 2009 resolved to recommend the allocation of Residential Plot No. 10280, situate in Luangwa, Kabwe to l-Iichaambwa Chitauka at its meeting held on 12th January, 2010. I have accordingly enclosed here in application forms for plot no. 10280 in duplicate and the extract of the Council minute number SPWD/29/11/ 2009 for your necessary action. Yours faithfully KABWE MUNICIPAL COUNCIL Daniel Mapulanga DIRECTOR OF DEVELOPMENT PLANNING FOR/ TOWN CLERK cc. Director of Engineering Services Kabwe Municipal Council KABWE cc. Hichaambwa Chitauka KABWE (Underlining and boldfacing for emphasis, supplied.). J21 (cid:9) R (cid:9) P.1656 In defining what recommendation means, the Oxford Advanced Learner's Dictionary of Current English, 6th Edition states that: "it is an official suggestion about the best thing to do." We thus have no difficulty in coming to the conclusion that, at the time the deceased and the 1st appellant were purporting to enter into a contract of sale, the deceased had not been offered this property by the Commissioner of Lands, but had merely been recommended to be offered the same. In the premises, he did not, at the time of the purported agreement dated 131h April, 2010, have any vested interest in the property in issue, or any title at all, which he could transfer by way of sale to the 1st appellant or any other person for that matter. As aptly stated by the learned authors of Barnsley's Conveyancing Law and Practice, 3rd Edition: "The word 'title' is an ambiguous word, meaning different things in different contexts. Conveyancers use the word in two main senses- first, to mean ownership, the vendor's right to the property; secondly, the evidence supporting the claim to ownership, i.e. proof of title in the first sense. In the expression 'good title,' the J22 P.1657 word is used as equivalent to ownership; a vendor must show a title as will enable the purchaser to hold the property against any person who may probably challenge his right to it. This obligation to make a good title requires the vendor to show that he alone, or with the concurrence of some person or persons whose concurrence he alone can compel, can convey the whole legal estate and equitable interest in the land sold, free from incumbrances except for those disclosed by the contract." A microscopic scrutiny of all the documents constituting the record of appeal has also revealed to us, that the Commissioner of Lands never issued a letter of offer to the deceased or any other person, in respect of Plot No. 10280 Luangwa, Kabwe. The letter of recommendation for an offer is the only reference made regarding the anticipated conveyance of interest in the said property. We can only underscore the position that, in law, a recommendation is not synonymous with an offer and confers no legal rights whatsoever on the person so recommended, to the subject of the recommendation. The deceased, who had no beneficial interest in Plot No. 10280 which had not been offered to him at the material time, could not enter into any valid contract for the disposal of the property to the 1st appellant, which in turn he could pass on to the 2nd appellant or anyonc else. On the facts, where the Commissioner of Lands has J23 P.1658 not yet exercised his discretion to make the offer in favour of the deceased, pursuant to the recommendation made by the Council; the 2nd appellant cannot claim to be a bonafide purchaser for value. It is for the reasons given, that all the three grounds of appeal cannot be sustained and must fail. This appeal is accordingly, dismissed for being one devoid of any merit. Costs of the appeal will be borne by the respective parties. DEPUTY CHIEF JUSTICE CNGA SUPREME COURT JUDGE J. K. KABUKA SUPREME COURT JUDGE J24