CMM Property Consultants v Zambia National Commercial Bank and Anor (Appeal 24 of 2000) [2001] ZMSC 96 (26 June 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 24 OF 2000 HOLDEN AT KABWE AND LUSAKA (CIVIL JURISDICTION) BETWEEN: CMM PROPERTY CONSULTANTS APPELLANT AND ZAMBIA NATIONAL COMMERCIAL BANK LIMITED 1ST RESPONDENT . AND MUTENDE INTERNATIONAL (Z) LIMITED 2nd RESPONDENT CORAM: CHAILA. LEWANIKA. CHIBESAKUNDA JJS On 9th November. 2000 and at Lusaka on 26th June, 2001 For the Appellant : J. P. SANGWA of Simeza. Sangwa and Associates For the Respondent: M. LUSUMBA. Legal Officer, ZANACO_______ JUDGMENT LEWANIKA delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court dismissing the Appellant's claim for the sum of K43,200,000.00 being commission payable to the Appellant for services rendered as estate agents on the sale of Plot 699a. 700, 701 also known as Siaza House. Lusaka. Alternatively, the Appellant claimed the said sum on a - J2 - quantum meruit basis or as damages for breach of contract. The evidence on record is that the Appellants are a firm of property consultants who were involved in valuation as well as estate agency and property management. The second Respondents were the owners of a property known as Siaza House situate on Cha-cha-cha Road. Lusaka. The second Respondent had also borrowed money from the 1st Respondent and the loan had been secured by a mortgage on the said Siaza house. As a consequence the title deeds of the said property were being kept by the Is’ Respondent. By a letter dated 13th June, 1996. the 2nd Respondent wrote to the Appellants appointing them as their agents on the sale of the said property at an asking price of US$850,000.00. By another letter dated 26th June. 1996, the second Respondent wrote to the Appellants confirming the following arrangements:- 1. 2. 3. 4. that the property would be advertised for sale by the Appellants on open tender basis with the minimum price of US$600,000,001 that a commission of 6% would be paid to the Appellants upon completion of the sale; that the proceeds of sale should be paid directly to the Is1 Respondent's debt recovery' department; that the Ist Respondent were to write to the Appellants confirming that they would release the title deeds to the property upon receipt of the proceeds of sale. The property was sold to the Zambia National provident Fund at a price of K600 Million and the proceeds of sale were paid directly to the 1st Respondent s advocates. On the evidence before him. the learned trial Judge made the following findings ot tacts:- (a) that the 1st Respondent did not appoint the Appellants as its estate agent; - J3 - (b) that the Appellants did not render their services to the 1st Respondent as its estate agent; (c) that there was no commission or other fees ever agreed between the Appellants and the Is1 Respondent. Counsel for the Appellants has advanced two grounds of appeal, namely:- (i) that the court below misdirected itself both on a point of law and fact in holding that the Respondent never appointed the Appellants as its estate agent and the Appellants never rendered any services to the Respondent. In arguing this ground, counsel for the Appellants submitted that the creation of an agency can be inferred from the conduct of the parties. He said that although the Appellants received instructions from the 2nd Respondent, they dealt most of the time, with the 1st Respondent. That from the conduct of the parties it was his contention that the Appellants were an agent of the 1SI Respondent. With respect to the counsel, this argument is not supported by the evidence on record. By the letters dated 13lh June, 1996 and 26th June. 1996 it was the second Respondent who appointed the Appellants as its agent on the sale of the property. The 1st Respondent was only requested to release the title deeds upon receipt of the proceeds of sale. The appeal cannot succeed on this ground. The second ground of appeal advanced by counsel for the Appellants was that the learned trial Judge misdirected himself on a point of both law and facts in holding that there was no commission or any fees agreed upon between the Appellants and the 1st Respondent and hence none was payable by the Is’ Respondent to the Appellants. From I r - J4- the evidence on record, the learned trial Judge was on firm ground in making this finding in that it was the second Respondent, in its letter to the Appellants dated 26th June, 1996, which offered the Appellants a commission of 6% upon completion of the sale. There is no evidence on record of any agreement between the first Respondent and the Appellants as to the payment of any commission or fees. This ground cannot succeed as well. In truth this appeal was devoid of merit and we dismiss it with costs. The costs are to be taxed in default of agreement. M. S. Chaila SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE L. P. SUPREME COURT JUDGE