Michelo v Chulu (SCZ Appeal 49 of 1992) [1993] ZMSC 45 (28 January 1993)

IH THE SUPREME COURT OF ZAI43IA SCZ Appeal No. 49 of 1992 HOLDEN AT LUSAKA (Civil Jurisdiction) EDEN MICHELO Appellant Vs WONDER CHULU Respondent Coran: Sakala, Chaila and Chirwa, J. J. J. S. 28th January, 1993, Mr, L. Nyenbele of Ellis and Company, for the appellant. Mr. S. Sikota of Centre Champers, for the respondent. Sakala J. S. delivered the judgment of the court. JUDGMENT Cases referred lox 1. Jean Mwamba Mpashl V Avondale Housing Project Ltd. SCZ Judgment No. 13 of 1991. For convenience we shall refer to the appellant as the plaintiff and the respondent as the defendant which they were in the court below. This is an appeal by the successful plaintiff against a part of a High Court judg^nt awarding him the refund of the purchase price in tne alternative of an award for specific performance of a sale agreement and yielding of vacant possession of House No. 257 unmasdale, Lusaka. There is also a cross appeal by the defendant. The brief facts leading to the appeal and cross appeal are as follows The plaintiff and the defendant were at the material time bank employees of the same bank, Barclays Bank, According to the plaintiff, in December, 1987 he entered into an agreement with the defendant for the purchase of house No. 257 Eunasdale, Lusaka at an agreed purchase price of K55,OOO. OQ The evidence of the plaintiff which is the only evidence on record supported by dxuments is that he paid the defendant this money through instructions > J2. given to their mutual employers who credited the money to the defendant’s account. After the payment of the purchase price the plaintiff allowed the defendant to stay in the house at an agreed rent of <300.00. According to the plaintiff, when he demanded the first rent payment, the defendant retorted that he Md changed his mind and attempts to settle the matter out of court failed. It must be mentioned that after the plaintiff closed his case the case was adjourned for the defendant to give his story. On the adjourned date* counsel for the defendant asked for a further adjournment as his client did not attend court. Another adjournment was granted for the 12th of December 1991. On the 12th of December 1991 both defence counsel and his client did not attend court and there was no explanation for their none appearance. The court then adjourned the case to 27th December 1991 for judgment. In the meantime, before the delivery of the judgment* no action was taken on behalf of the defendant until judgment was delivered. The court found that the evidence of the plaintiff clearly established an agreement between the plaintiff and the defendant for the sale of house No. 257 Banker’s Coepound* Emmasdale* Lusaka and that Barclays Bank acted upon such agreement to give <55,000.00 loan to the plaintiff. The court accordingly found for the plaintiff and ordered specific performance for the sale of the house in qu stion and that In Hue thereof the defendant do refund the <55,000.00 within 30 days with 35% interest. The plaintiff has appealed against the order to refund while the defendant has cross appealed against the whole judgment on the ground that the judgment was not on merit as he was not heard and urged the court to order a retrial. Both learned counsel have filed written heads of argument. Both learned counsel in their arguments seemed to assume that the order of refund as made by the learned trial judge was lawful. Thus the gist of the plaintiff's arguments was that the proper measure of damages in lieu of specific performance must be the market value of the house at the date of the judgment. The gist of the cross appeal was tnat the judgment was not on merit as the defendant was not heard in his defence. 3/.*. In our considered opinion the arguments by both learned counsel beg tne question. Me agree with the learned trial judge that there was an agreement for the sale of the house. The letter dated 16th November. 1989 styled "To whom It may concern" clearly stated that tne defendants offering W dS house No* 257, Ewaasdala, Banker’s Compound for sale to the plaintiff of Barclays Ban*, Zambia Limited, Mutaba House Branch, Lusaka at <55,000.00. That letter is signed by the defendant, it is common cause that the plaintiff paid for the amount of money stated in that letter. In the case of dean yta&isa tipashi Vs Avondale Housing Project (1), the defendant was offered a house at <125,000.00. Later the defendant put up a fresh offer to the plaintiff which was rejected. Attempts to settle the matter out of court failed. One of the arguments on appeal, in that case was that there was no binding agreement end therefore the payment of <25,090.00 deposit did not constitute part performance. After referring to a number of authorities cited in that case this court stated: "The decision In Steadman’S case shows that there is no general rule that payment of money cannot be part performance but this payment must be referable to one transaction. The payment of the deposit in this case was clearly referable only to one transaction; such payment therefore amounted to part performance of the contract and la an exception to the rule requiring a memorandum in writing. There Is consequently an equitable right for specific performance." The plaintiff in that case was partially successful only for different reasons. To some extent the facts of that case are on all fours with the present case. In our view, having found that an agreement existed, the learned trial judge was not in law entitled to make both orders. The only order he could have made was one of specific performance. The alternative order was only competent after parties had shown that specific performance was impossible as it was in the Mpashl case. The plaintiff did not plead for daniages in the present case. In any event the choice J4. was for the purchaser and not for the vendor as to what rt-aedy to claim. Although, however* there was some Miscarriage of justice in this case in that the defendant was not heard, we are satisfied that the defence of fraud and lack of ^wranduo in writing of the agreement as pleaded was bound to fail even if the defendant had been heard. Fer the reasons we have stated, we order that there be specific performance and that the defendant do yield vacant possession of house Ho, 257 Jenner's Compound, Emasdale, Lusaka within 14 days fm today1* date. It follows that the cross appeal must fall away. The appeal is allowed, the order of we court is that, there be specific performance of the agreement of sale and that the defendant do yield vacant possession within 14 days fraa todays Costs of this appeal follow the event. t. L. Sakala, SUPREME COURT JUDGE. H«S« Cnaila, SUPREME COURT JUDGE. O. K. Chirwa, SUPREME COURT JUDGE.