Constance Lombe v India Musokotwane (SCZ APPEAL NO. 57 OF 1993) [1994] ZMSC 175 (9 March 1994)

IN THE SUPREME COURT OF ~AMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) BE 'f WEEN: SCZ APPEAL NO . 57 OF 1993 CONSTANCE LOMBE Appellant and lNDIA MUSOKOTWANE Respondent Coram: Chaila, Chirwa and Muzyamba JJJ. S at Ndola on 8th December 1993 and 9th March 1994 For the Appellant ; Mr. D. E. Ndblovu. Lusaka Chambers For the Respondent: Mr. G. S. Cbimanga, Ellis and Company J UDGMEN'l' Ghirwa, J. S delivered the judgment of the cour~. Originally there were two actions between the parties. The first was by Constance Lombe who issued a writ of summons in which she prayed for specific performance of a contract of sale of property known as Stand Number 4821 Riverside, Kitwe and also for an injunction to restrain India Musokotwane from evicting her, her eervants or agents from the said stand. in the second action, India Musokotwane issued originating summons for possession of the said stand and for an order for eviction of one Muhammed Bassrou who was in occupation of the premises. j~in as a second defendant and an order was duly made joining her to the proceedings. Later an application was made to consolidate the two ac;ions and an order was duly obtained. For clarity in this appeal, we will refer to India Muaokotwane as the plaintiff and Constance Lombe as the defendant as during In this action Constance Lombe applied to 2 .•. the course - J2 - the course of these proceedings in the court below Muhammed Bassrou was dropped from the proceedings. From the evidence in the court below both on affidavit and viva voce it is not disputed that the plaintiff is a registered owner of Stand 4821 Riverside, Kitwe. Sometime in 1989 one Conceptor Lombe, now deceased, became a tenant on the said premises. During the same year the plaintiff agreed to sell the property to the said Conceptor Lombe at an agreed price of U$ 250,000 or pounds sterling 106,918.24 to equivalent of K8,000,000 at the time. The full purchase price was to be paid by the end of August, 1989. A deposit of K300,000 was paid in June 1989 and later £5,000 was paid in July 1989. At the end of August, 1989 the full purchase price waa not paid and the period was extended to 31st December 1989, Around April 1990 the plaintiff talked to the deceased Conceptor Lombe about the delay and intimated his intention to rescind the contract but the deceased promised to complete the contract as soon as he felt better apparently at this time the deceased was ill. On 4th May 1990 the plaintiff wrote the deceased withdrawing his offer for the sale of the said property and the contents of this letter were communicated to the deceased by his partners in Zaire as the deceased at this time was in Zaire receiving treat ment. After sometime the plaintiff heard that Conceptor Lombe had died in Zaire, and be waited for a reasonable mourning time and approached the wife of the deceased .. ·Lombe. In the meantime the defendant was appointed as administrator of the estate of Conceptor Lombe. issued a writ of summons for specific performance, which action as we have already said, was consolidated with the one by the plaintiff. After hearing the case ~he learned trial judge refused to order specific performance accepting that full contract price had not been paid even after been given notice to complete but he grarit:ed an order for possession to the plaintiff. It is against this order for posBession that the defendant has appealed to this court. It was in this capacity that the defendant 3 •.• ln arguing - J3 - In arguing thie appeal, a number of grounds were adyanced. The main ground was that the learned trial judge erred in not accepting tbat there was a contract of sale of the property as there could not have been a completion statement issued if there was no contract. The only dispute was the balance of purchase price and this was not addressed by the lt was also argued that the trial court on court below. ordering the refund of the money did not specify in what currency it was to be paid as there was evidence that part of the money was in the local currency and some in sterling pounds. In reply for the respondent, it was attempted to be argued that there was no contract between the appellant and the respondent. The appellant having failed to complete the contract cannot complain against the order for possession ordered by the court below. We have taken into account the submissions by counsel and also the evidence on record. There can be no doubt that there was a contract for sale of the property in question between the respondent and the late Conceptor Lombe and at the time of bis death he had not paid the full purchase price. It is also not disputed that the appellant was appointed adminiacrix of the estate of the deceased and it ia in that capacity that she sued the respondent. There is no doubt that after she was appointed administrix the appellant through her advocates was in January 1991 given notice to co~plete the contract. There was no response and a reminder was sent in May 1991 and there was no response either. To date, the contract bas not been completed as the appellant has not paid full purchase price. Having thus failed to pay the full purchase price, the respondent was entitled to rescind the contract and demand possession of the property. On the evidence of this case we cannot fault the learned trial judge in ordering possession of the property and this we confirm, 4 ..• At the hearing - J4 - At the hearing of this appeal we were informed that the respondent had refunded all the money that had been paid in this contract and the appellant can claim nothing from the respondent and it seems it is irrelevant in what currency the money was paid as although the purchase price was pegged in US dollars or sterling pound, the money was to be paid in kwacha equivalent. We have failed to, award interest in this case on the .:refunded money bearing in mind that the appellant has been in possession of the premises since 19.89 without paying any rent. The appeal is therefore dismissed with costs both in this court and the court below to be agreed in default to be taxed. The appellant to give vacant possession of the property on or before 31st March, 1994 • . . . . . . . . . . . . . . . . . . . . . . . . . . . . M. S. Cbaila SUPREME COURT JUDGE D. K.. Cbili-iira SUPRIME COURT JUDGE ..................... W. M. Muzyamba SUPREME COURT JUDGE