David Lukwele v John Kimani (APPEAL NO 183/2019) [2021] ZMCA 268 (1 November 2021)

' IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: APPEAL NO 183/2019 DAVID LUKWELE -- ..... - APPELLANT AND JOHN KIMANI RESPONDENT CORAM: CHISANGA JP, MULONGOTI AND SIAVWAPA JJA 16TH FEBRUARY A D 181' NOVEMBER, 2021 FOR THE APPELLA T: NO APPEARANCE FOR THE RESPONDENTS: 0 APPEARA CE JUDGMENT SIAVWAPA, JA, delivered the Judgment of the Court. Cases referred to: 1. Chishala Karabasis Nivel and Another v Mwale, Appeal No. 161 of2015 321 2. Anne Scott v Oliver Scott, SCZ Judgment No. 3 of 2007 3 . Anti-Corruption Commission v Bamnet Development Corporation Limited {2008) 1 ZR 69 4. Corpus Legal Practitioners v Mwanandani Holdings Limited SCZ Judgment No. 50 of 2014 5. K rell v Henry (1900-1903) ALL ER 20, fl 903} 2KB 740 6. Davis Contractors Limited v Fareham Urban District Council (1 956) 2 ALL ER 145 Works Referred to 1. Contracts-Frustration of Purpose published in the Michigan Law Review Volume 59 at p . 112 by T Ward Chapman 2. PoweWs Principles and Practice of the Law of Evidence} Tenth Edition; William Blake Odgers and Walter Blake Odgers, London, 1 921, Butterworths & Co page 45 1.0. INTRODUCTION 1.1. This is an appeal against the Judgment of the High Court pr sided over by the Honourable Mrs. Justice P. K. Yangailo d livered on 21 st May 2019. By the said Judgment, the learned Judge found that one of th two properties in dispute legitimately belonged to the Respondent while the other one was jointly owned by the two. She accordingly ordered the second one to be severed and equally shared or in the alternative that it be valued, sold and the proceeds be equally shared. 2.0. BACKGROUND 2.1. In 2012 1 the parti s ntered into what they called a join venture agreement with a view to constructing a hotel called P lican Lodg Limit d on a piece of land owned by the Appellant. 2 .2. The Respondent requ ested th e Appellant to allocate him half of the said piece of Land at half the value which would constitute his equity investment in the land at 50% stake. J2 2.3. After negotiations, the 2 hectare piece of land was valued at Kl5, 000.00 which was far below its commercial value on the understanding that the Respondent would source finances for the project. 2.4 . The Respondent subsequen tly paid to the Appellant the sum of K7, 500. 00 being the value of th half portion of the land on which the hotel was to be constructed. 2.5. The parties eventually registered a Company jointly by th name of Pelican Lodge Limited. 2.6. In the meantime, side by sid - with th equity share investment in the land, the Respondent had asked the Appellant to sell him a piece of land close to the hotel site for h is residential home. The parties negotiated and settled for a price of K13, 000.00 far b low the commercial value on the understanding that the Respond . nt would inv _ st much in the hotel construction. 2.7. The Respondent paid the sum of K5, 000 .00 with a pledge to pay th e balance of K8, 000.00 after all formalities h ad been done with the authorities. 2.8. In due course, the Respondent purportedly paid the balance via a petty cash voucher which the Appellant denies . J3 3.0. FAILURE OF THE VENTURE 3.1. After all had been done, the Respondent travelled to his native Kenya purportedly to source for financing of the project but nothing came out of it. 3.2. Later in 2014, the parties agreed to have the Company de registered on account that they had failed to raise financing for the project. 3.3. It was after the de-registration of the Company that differences arose on the disposal of the two properties namely Lot 26958/M , which is the property sold to the Respondent for his residence and Lot 26860 /M, which was allocated to the construction of the hotel and jointly owned in equal shares. 4.0. THE DEMANDS BY EACH PARTY 4 .1. For the Appellant, his demand was that Lot 26968/M reverts to him because the Respondent had breached the contract by his failure to pay the balance. He intended to repudiate the contract on that account. 4.2. With regard to Lot 26860 /M, it was his contention that the half he had offered to the Respondent as his equity interest reverts to him as he had failed to honour his part of the contract by failing to raise capital as pledged. He further J4 argued that he had offered the land for the sole purpose of constructing a hotel which had failed. 4 .3. The Respondent on the other hand denies any breach of contract on Lot 26958/M and desires that Lot 26860/M be severed into two equal portions so that the ownership is separated. 4.4. [n the alternative he suggests that the Appellant surrenders his portion to him for the K35, 000.00 he cla ims the Appellant owes him. 5.0. THE ACTION BEFORE THE HIGH COURT 5.1. The Respondent commenced an action in the High Cou rt by writ of summons and a statement of claim filed on 1'0th April 2015. 5.2. The Respondent (Plaintiff 1n the Court below) claim ed as foHows; (i) A declaration that the Defendant's refusal to the severance of the joint tenancy re,garding Lot 26860/ M is unreasonable. (ii) An order that joint tenancy on Lot 26860/ M be severed. (iii) An order that Lot 26860/ M be sub-divided into two different parcels of land to .be held and owned separately/ individually by the Plaintiff and Defendant. (iv) A declaration that the Plaintiff is entitled to the refund of the expenses he incun-ed in converting of Lot 26860/ M from customary tenure to statutory leasehold and incorporating the intended business venture. (v) An order that the Defendant pays a sum of K35, 000. 00 being the expenses incurred in converting Lot 26860/ M from statutory leasehold and incorporating the intended business venture namely, Pelican Lodge Limited. (vi) Alternatively that the Plaintiff be at liberty to buy out the Defendant's interest in the joint tenancy over Lot 26860/ M (vii) Interest (viii) Any other relief the Court may deem fit (ix) Costs 6.0. ANALYSIS AND DECISION OF COURT BELOW 6. 1. Aft r considering the claims and the evidence before her, the learned Judge proposed the following issues as falling for det rmination namely; 1. Whether or not the Agreements .made by the Plaintiff and Defendant which led to a joint tenancy being created are valid; and 2. Whether or not there has been breach of contract} fraud, misrepresentation or mistake, which warrants the cancellation of Titles under dispute. §6 6..2. In addressing the two issues, the learned Judge found that the first Sale Agreement dated 24 th April, 2012, related to a piece of land in extent 1.6.hectares known as Lot No. 26958/M. Sh e further found that the same had been fully paid for in two instalments with no attachment to the joint venture business. 6.3. The learned Judge accordingly declared the land to be rightly owned by the Plaintiff. 6.4. With regard to the second Agreement, also dated 24 th April, 2012, but signed on 19th May 2012, the learned Judge picked on some key phrases in the contract and came to the conclusion that the Defendant was a willing participant in the joint venture and surrendered 50% of the piece of land as his contribution. 6.5. The learned Judge understood and interpreted the Agreem ent as creating between the parties equal interests and obligations in the venture and therefore equally entitled to it as joint tenants. 6 .6. On the claim by the Defendant based on breach of contract, fraud, misrepresentation or mistake, the learned Judge found that the Defendant had not sufficiently proved the cla ims. The case of Chishala Karabasis Nivel and Another v Mwale 1 was called into aid in so far as it re-states the requirement to J7 specifically plead and strictly prove forgery or fraud based claims as a matter of necessity. 6.7. Having established that Lot No 26860/M was a joint tenancy, the Learned Judge considered the characteristics of a joint tenancy which were drawn from two cases, namely Chishala Karabasis (supra) and Anne Scott v Oliver Scott2. 6.8. The basic features as set out by the two cases are that of the indivisibility of the tenancy as broken up into the 4 unities namely, title, possession, time and interest. 6.9. [n view of the unities, the Supreme Court in the Anne Scott case (supra) set aside the learned Deputy Registrar's decision to offer some structures on the jointly owned property to one of the parties without proof of fraud or mistake in the manner the joint ownership came about. 6.10. The Supreme Court went on to hold that the two were beneficially entitled to the property in equal shares. An order for valuation sale and sharing of proceeds equally was made by the Court. 6.11. Inspired by the outcome in that case, the learned Judge made similar orders in respect of Lot No 26860 / M. J8 7 .0. THE APPEAL 7. 1. Clearly unimpressed by the out om , the App 11 t lod ged an app a l on 21st June, 2019 bearing seven grounds of appeal as se out in the M morandum of Appe L 7.2. We ill not reproduce th e grounds here as we shall do so in our analysis part. Suffice to state though that most of the grounds attack the Judge's findings of fact and we shall treat them accordingly. 8.0. THE APPELLANT'S ARGUMENTS 8 .1. The Appellant filed his Heads of Argument on 7 th October 2019 which also incorporated authorities relied upon. He chose to argue the grounds in two clusters namely; 1, 5 nd 7 as one cluster while 2, 3, 4 and 6 comprised th e other. 8.2. In the first cluster of ground h argu1ne ts ar ~ that t er was no proof that the App llant r eceived th second instalment paym . n as he did not sign th payment vouch r as acknowledgment of paym n . 8.3 . As regards th first property being Lot o 26 58/ M, it is argu d that the survey diagram was not approved for the sub division which was still at propo al stage. He submits that the lack of approval by the Council was proof of fraud and ]9 impropriety in the manner the Respondent obtained the Certificate of Title for the property. 8.4. He further submitted that it is not only fraud, misrepresentation and mistake that can cause cane llation of a Certificate of Title but impropriety, which does not require to be specifically pleaded, is also included in Section 34 of the Lands and Deeds Registry Act. He relied on the cases of Anti Corruption Commission v Bamnet Development Corporation Limited3 and Corpus Legal Practitioners v Mwanandani Holdings Limited4 . Both cases speak to impropriety as one of the basis upon which a Certificate of Title may be cancelled. He accordingly prays that the first cluster of grounds of appeal succeeds. 8.5. In arguing the second cluster of grounds, the Appellant faults the learned Judg for finding that the Sale Agre . m nt relating to th ' first prop rty was separate from th joint venture agreement and therefore, rightly owned by the Respond nt. 8.6 . On the jointly owned piece of land it is argued that the contract clearly indicates that the property was intended for a business venture without which th Appellant would never have sold it to the Respond nt. JIO 8. 7. It is contended ultimately that the Sale Agreements relating to both pieces of land were closely linked to the establishment of the business venture which failed. 8.8. The Appellant's arguments revolve around the fru stration doctrine and to that effect he has cited several English cases which define what frustration of contract is, or what circumstances may constitute frustration. 8.9. We however, pick on the case of Krell v Henry5 as the most closely related to the case before us. We will delve more into it in the analysis part of our Judgment. 9.0. RESPONDENT'S ARGUMENTS 9 . 1. The Respondent dismissed ground one on the basis that neither fraud nor impropriety was proved in the acquisition of Lot No 26958/M as the correct procedure was followed. 9.2. On ground two, he argued that the contract for sal of Lot 26958/M was separat from tha of the joint venture which was signed later. 9.3. In ground thr e the Respond nt maintains that the parties were free and willing participants in the Sale Agreements and the Appellant cannot distance himself from that fact. J 11 9.4. On ground four, the Respondent agrees ·with the Court's view that the parties had equal interests and obligations in the business venture as joint tenants of Lot No 26860/M. As for the arguments on frustration, the Respondent's view is that the land was not owned by the failed joint venture, Pelican Lodge Limited, but by the parties. For that reason, it is argued that the two are severable. 9.5. On ground five, the Respondent simply relied on the arguments on ground four. 9.6. On ground six the Respondent agreed with the learned Judge for placing reliance on the Scott and Karabasis cases to define a joint tenancy and how to treat it when a dispute arises. 9.7. On ground seven the Respondent agreed with the learned Judge's finding that there was no fraud, misrepresentation, and mistake or impropriety in the transactions. He thus urged us to dismiss the appeal with costs h ere and below. 10.0. OUR ANALYSIS AND DECISIONS 10.1. After careful consideration of all the arguments in this appeal as well as the very elaborate Judgment of her ladyship Mrs. Justice P. K. Yangailo, we are of the view that at the centre of the entire dispute is the failed intended joint business venture project called Pelican Lodge Limited. J 12 The question therefore, in our view is; were the two Sale Agreements relating to Lot No. 26958 /M and Lot No. 26860 /M tied to the Joint Venture calLed Pelican Lodge Limited? 10.2. The evidence in the Court below shows that at their first encounter, the two discussed the issue of setting up a hotel business. The discussions crystallized into setting up a joint venture in which the two would have equ al shares. 10. 3. The Appellant made his traditional land available and allocated two hectares for the construction of the hotel. It is also not in dispute that the Respondent asked for a piece of land from the Appellant for his personal use. 10 .4. In dealing with the issu w h av stat d arli r in this Judgment, w shall deal with the two properti s in issue separately, b ginning with the one th e Respondent acquir d for his personal use, being Lot No 26858/M. 10.5. The request for the land culminated into a Sale Agreement dated 24 th April 2 01 2. The said Agreement is exhibited at page 112 of the Record of Appeal. The learned Judge below m ade reference to the Agreement and found it to have no connection to the joint v ntur busin ss. J 13 10.6. We have looked a t the Agreem ent which is very simple , short and couched as fo llows; "After thorough discussions and visits to the s ite , both parties have mutually agreed as follows; 1) That Mr. David Lukwele NRC No. 126518/17/l of P.0 Box 46 Chibombo and owner of tradittonal land Ref: No l528A1 -Chi1Gonga area unde.r jurisdiction of chieftainess Mungule - who has consented to this transaction - shall hive a piece of the said land and s ell the hived piece referred to here as No. 1528A1/C measuring approx imately 1.6ha to Me (John Kimani NRC No. 907143/17/ 2) ... " 10.7 . Th Agreement continues but wh at com es out of th quoted portion is that on the face of it, it app ars to be a direct sale b twe n the Appellant and the Respondent not connected to the business v nture. We however, take cognizance of the fact that the contract of sale in issue did not arise out of th blues. The Appellant was enticed by the R spondent's overture that he could build a hotel in hich both of them would own s h ares. 10.8. According t o the Appellant 's evidence as r corded at page 176 of th R cord of App al, the Responden t requ ested th Appellant to find him a place close to the site for the hotel to oversee its con stru ction. Th Appellant then offered the Respondent the piece of land of his choice at the commercial value of K67, 000, 000 (un-rebased ). Th e R-spondent how v r , pleaded that since he was going to inject an initial capital of K520 , 000, 000 (un-rebas d) into the hotel and create many jobs, the p rice was too high. (See page 177 lines J 14 15 to 21 of the Record of Appeal)The families eventually settled for a much subdued price of K13, 000, 000 (un rebased). 10.9. On the issue of the payment of the balance of KS, 000,000.00, the question is wh ther the Respondent sufficiently proved that he indeed paid the said amount; a fact disputed by the Appellant. The payment voucher relied upon by the Respondent as proof of such paym nt bears a signature pu rported to be that of the Appellant. The Appellant denied signing the document alleging that the signature was a forgery. 10.10. The question as to who b ars the duty to prove a fact in issue is long settled. The general rule is that it is the party alleging the truthfulness of a fact in issue who bears th duty to prove it to the requisite standard. 10.11 . The best evidence of a handwriting or signature is that of the author and wher th author disputes it, any person who witnessed the writing or signing may testify to that effect. Other modes of proof are by witnesses who have witnessed the party write or sign on other documents, have seen documents purporting to be written or signed by the party and on account of subsequent communication with the Jl5 party believe the same to have been written or signed by the party. 10.12. The last one is a witness who has formed his opinion on the authenticity of a disputed document by making a comparison with other documents proved and admitted by the Judge as authored by the party. This witness needs to be skilled but not necessarily a professional expert in comparing handwritings. (See Powell's Principles and Practice of the Law of Evidence, Tenth Edition by William Blake Odgers and Walter Blake Odgers, London 1921, Butterworths & Co, page 45) 10.13. In the case at hand, the only evidence in support of the payment of the balance of K8, 000, 000 on the purchase of Lot 26958/M is that adduced by the Respondent and disputed by the Appellant. In view of the variance in the manner the initial payment of KS, 000, 000 and the second instalment of K8, 000, 000 were paid and witnessed, the Respondent needed to call corroborative evidence of the authenticity of the signature on the petty cash voucher purporting to be that of the Appellant. 10.14. The evidence also shows that the contract of sale occurring at page 112 of the Record of Appeal provides for payment of the balance upon lodgement of the relevant documents with the District Council for approval. However, at page 159 line 3 of the record of Appeal, when asked if he had paid the J 16 balance upon lodging th e documents, the Respondent said that h e did not remember . But a t page 160 line 11 of the Record of a p peal when respon ding to the same question, he said that he paid th e balance before he lodged the documents . 10 .15. It is therefore, clear to us that the Respondent feU sh ort of proving that he indeed paid t h e K8 , 000, 000.00 balance on the purchase of lot 26958/ M thereby breaching th e con tract of sale. On the basis of ou r expressed views on the nexus between the sale of Lot 26958 / M and the construction of th e hotel to be co-owned by the Appellant and the Responden t, and the fa ilure of consideration on the purch ase price, we hold that the sale collapsed . 10.16. We now consider the second Sale Agreement relating to Lot No. 26860 / M which occurs a t p age .1 13 of the Record of Appeal. Th e same is also dated 24th April 2012 but was on ly executed by the parties on 19 th May 2012. We reproduce part of it here below for ease of reference. "After thorough discussions and visits t o t he site, both parties have mutually agreed to go into partnershi p intended to start a business venture to be jointly owned and operated .by the two of us. To facilitate our intention., we h ave therefore mutually agreed as follows; 1) That Mr. David Lukwele NRC No. 126518/ 17/ 1 of P. O Box 46 Chibombo and owner of traditional land Ref No. 1528Al Chikonga area under jurisdiction of Chieftai:ness Mungule .measuring and who has hived a piece of this land J 17 approximately 2ha. and pegged at ZMK 15,000,000.00 ,(Fifteen Million) shall surrender 50% of the said hived piece as his contribution towards the said venture and I John Kimani NRC No. 907143/17/1 of P. O. Box 101, Fri.ngilla shall to Mr. Lukwele ZMK 7,500,000 (seven million five hundred thousand) as my 50% contribution as equity _for ownershi _ o land ... " (The underling is ours for e.mphasts), iece o this a 10.17. This Sale Agreement is fundamentally not differ nt from the first one in that it was also conceived and crafted with the joint venture in mind as demonstrated by the underlin d portions . 10.18. The Agreement states that the K7, 500, 000.00 paid by the Respondent was in fact equity for the joint venture to which the Appellant had contributed an equivalent amount thr ough the por ion of land of quival nt · alue. 10.19. It can be said of this Agreement hat without the joint venture business Agreement between the two to construct th Pelican Lodge Limited, it would not have been con i d and actualized as was the case with the firs greement. 10.20. On her part, the learned Judae below analys d the Agr em nt and came to the conclusion that bo h went into it as illing partners with equal interests and obligations b reason of which they became joint tenants of the land. 11.0. THE LAW 11.1. Ha ing found as tated above, the learned Judge plor d he la governing cane llation of a Certific t of Titl and Joint Tenancies . On cane llation, she h ld that no fraud h d been pro ed though it as pleaded. 11.2. As for the joint tenancy, she affirmed her earlier po ition and found that the parties could not co-exist and ordered a severance of the property into twos p rate portions . 11.3. One strong argument the ppell nt is advancing h inges on frustration and we were referred to a number of English decisions as earlier stated. In the case of Davis Contractors Limited v Fareham Urban District Council6 Lord R id opined as follows· "It appears to me that frustration depends, at least in most cases, not on adding any implied term, but on the tnte construction of the terms which are in the contract read in the light of the nature of the contract and of the relevant surrounding circumstances when the contract was made". 11.4. The above statement by Lord Reid is, in our iew, pointing to th r 1 vane of th basis upon hich th parties ent r d into th contract, th nvironmen under hich the con tract was nt r d into and th xpected outcome. 1 .5. If something happens with out the f u l of either party th at renders the expected outcom s unattainable frustration can be imputed. J)9 11.6. [n the case of Krell v Henry which we referred to earlier, the brief facts are as follows; Mr. Krell, the Plaintiff, was the tenant of No. 56A iPall Mall, London. The Respondent, Mr. Hen ry, had contracted with Mr. KreU to rent some rooms on June 26 and 27 1902 for the purposes of viewing the processions leading to the intended coronation of King Edward VII . The parties agreed on a rental charge of £75 of which £25 was paid as a deposit with the £50 balance to be paid on 24 th June. The coronation was postponed due to the illness of King Edward. 11. 7 . Mr. Krell commenced an action for the recovery of the £50 balance but Mr. Henry refused to pay and also counterclaimed the £25 deposit. 11.8. The Court of first instance presided over by DARLING J; gave Judgment in favour of the Defendant Mr. Henry for both the claim and counterclaim. 11.9. Mr. Krell was dissatisfied and appealed to the Court of Appeal. The Court of Appeal held as follows; "The use of the rooms was let and taken for the particular purpose of viewing the processions, on no other; parole evidence was admissible to show that the happening of the p~ocessions and a view therefore was the foundation of the contract, it was not in the contemplation of the parties that the processions would not take place, the non-happening of ] 20 the processions prevented the perfor.mance of the contract and the contract was discharged." 1 1. 10 . Fu rther at p a ge 23 paragraph 3, Vaugha n William W Stated a s follows ; "I do not think that the principle of the civil law as introduced into the English Law is limited to cases in which the event causing the impossibili~y of performance is the destruction or non-existence of somet.hing which is the subject matter of the contract or some condition or state of things expressly specified as a condition of it. I think that you first have to ascertain not necessarily from the terms of the contract but if necessary from necessary inferences, drawn from surrounding circumstances recognized by both contracting parties, what is the substan,ce of the contract and then to ask the question whether that substantial contract needs for its .foundation the assumption of the existence of a particular state of things." 1 1. 11. At p age 24 paragraph 3, hi s Lordship went on to state a s fo llows ; "Each case must be judged .by its own circumstances. In each case one must ask oneselffirst, what having regard to all the circumstances, :was the foundation of the contract? Secondly; was the perfo.rmance •Of the contract prevented?; and thirdly was the event which prevented the performance of the contract of such a character that it cannot reasonably be said to have been in the contemplation of the parties at the date of the contract? . If all these questions are answered in the affirmative (as I think they should be in this case), I think both parties are discharged fro.m further performance of the contract. I think that the coronation processions were the foundation of this oantr:act, and that the non-happening of them prevented the perfo.rm.ance of the contract; and secondly, I think that the non-happening of the processions, to use the words of SIR JAMES HANNEN in Baily v De Crespigny (3) (L. R.4 Q. B at P . . 185), was an event". J21 12.0. APPLICATION OF THE KRELL CASE TO THE APPEAL HEREIN 12. L Though the authorities cited are by and large founded on the doctrine of frustration, we think that the appeal before us is not solely founded on frustration but largely on a failed foundation of the contract. That is the argument we embrace from the Krell case. 12.2. We think that the reasoning deployed by Lord Vaughan in deciding the Krell case accords well with the circumstances in this appeal. The need to consider the basic foundation of the contract is cardinal and the foundation is established by the facts of each case. It is note-worthy that in the Krell case , although the contract was for renting the specific room, what failed was the purpose for which the room was rented, the coronation procession of the King. 12.3. Similarly in this appeal, it is not the land transactions that failed but the purpose for which the land transactions were made, the construction of a hotel. 12.4. We note in this case that the Appellant is just a villager who had access to customary land and desirous of going into a working relationship with someone to develop the land into a business. ]22 . ' 12. 5. The evidence of the Appellant in the Court below is that he had initially intended to start a family business with the blessings of the headman but failed to raise capital. He then decided to approach a Mr. Glen Alison who owned Green Farm Kalalusa. 12.6. He however, could not meet him and in the process he met the Respondent who was managing Mr. Alison's farm who expressed interest in doing business with the Appellant. After follow-up discussions between the families, the idea of a hotel was mooted and processes were put in place. 12.7. It was on that basis that the Appellant surrendered 2 hectares of his land and offered 50% of it to the Appellant so that a hotel could be constructed on it. Further to that, the Respondent, who expressed his desire to be close to the construction site in order to render supervisory services, cajoled the Appellant to sell him Lot 26958/M at a much subdued price. 12.8.lt is very clear from that background that the only reason the Appellant entered into the contracts of sale at pages 112 and 113 of the Record of Appeal was to facilitate the construction of the hotel to be owned equally by the two of them. J23 12.9. It is therefore, without doubt that the construction of the hotel was the foundation of the two contracts of sale. The circumstances of the entering into the contracts were that the Appellant had the land while the Respondent had or would source for the finances. 12.10. We are alive to the fact that the learned Judge below found that there was no undertaking in the contract by the Respondent to source for the finances for the construction of the hotel. We are however, of the view that the belief on the part of the Appellant is inferable from his circumstances at the time which spoke to his financial destitution and the conduct of the Respondent who impressed as one with or capable of sourcing the means. 12.11. We are also satisfied that the foundation of the contract could not be attained because of the failure to raise funding as portrayed by the Respondent. To all intents and purposes, the event that prevented the consummation of the joint venure could not reasonably have been contemplated by the parties, especially the Appellant. 12.12. We also got inspiration from an Article entitled; "Contracts-Frustration of Purpose published in the Michigan in Law Review Volume 59 at p. 112 by T Ward Chapman in which he says; J24 I • "When parties assume that a particular event would take place, or a particular thing or state of facts would continue or cease. When the frustrating event causes circumstances to become other than those presumably assumed by the parties, the foundation of the contract is destroyed and consequently the contract is also". In other words, once the foundation of the contract collapses, whatever steps were taken towards actualizing it are rewound to zero, to the beginning. 13.0. REMEDY 13.1. As seen in the Krell case, both the Court of first instanc a nd the Court of Appeal not only granted Mr. Henry relief from paying the balance but also granted him an order of r stitution for the advance payment he h ad made. This is important because it places he p arties in the position they were before h . contract was en er d into with the foundation having failed . It also shows that once the parties are discharg d from the contract, th y are also entitled to whatev r consideration they had given for the actualization of the contract foundation. 13.2. In th appeal herein, the parties should be reverted to their original positions prior to the contract which is that the Appellant should have his pieces of land back both under Lot 26958/M and Lot 26860/M which he had hived off for the pu rposes of the Respondent's residence and the construction J25 of the hotel. The Respondent will equally have his money back in both cases. 14.0. CONCLUSION 14.1. Looking at the history of this case, we are tempted to surmise that the Respondent's dealings with the Appellant were devoid of good faith whose primary objective was not the partnership hotel business with the Appellant but acquisition of cheap land. His rush to buy land from the Appellant on the pretext of building a hotel speaks to his real intention. 14.2 His rush to demand for severance of the ownership upon de registration of the Pelican Lodge Limited, so that he could have the half portion to himself is curious. 14.3 We are also of the view that his intent on acquiring even the other half so that the entire 2 hectares could vest in him on the pretext that the Appellant owes him K35, 000.00 does not portray good faith. 15.0. DECLARATIONS AND ORDERS 15.1 We declare that Lot 26858/M wholly reverts to the Appellant upon refund of the KS, 000.00 (re based) which the Respondent paid towards the purchase price. 15.2 With respect to Lot 26860/M, we declar that the same reverts to the Appellant in its entirety upon the Appellant refunding the K7, 500.00 (re based) to the Respondent. We further order that the Certificates of Title issued in respect of the two Lots be cancelled and re-issued in the nam of the Appellant. Th e refunds herein shall be paid within sixty (60) days from the date of this Judgm nt failure to which th Respondent may Levy execution. 15.3. The appeal is allowed with each party to bear his own costs . ' ·····•• '••··········~ ·················· F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL ............... j ..................... . M. J. SIAVWAPA COURT OF APPEAL JUDGE 127