Forefront Industrial Solutions Limited v Benard Makungu and Ors (Appeal No. 251 of 2024) [2025] ZMCA 135 (18 November 2025)

IN THE COURT OF APPEAL OF Z Appeal No. 251 of 2024 HOLDEN AT NDOLA (Civ il Jurisdicti on) BETWEEN: , s 1::v 2025 REGISTRY 2 FOREFRONT INDUSTRIAL SOLUTIONS LIMITED APPELLANT AND BERNARD MAKUNGU MUTALE MAKUNGU MAMBWE MAKUNGU ISAAC TEZA KABWE p t RESPONDENT 2 nd RESPONDENT 3 rd RESPONDENT 4th RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA 11th & 18th November 2025 For the Appellant: Mr. V . K. Luswini M essrs. Leonard Tem b o Lega l Pract itioners For t h e 1st to 3 rd Res pondent: Mr. J. Kapila For the 4 th Responden t : No Appearance Mesda m es TMB Advocates Messrs G. M. Lega l Practitioners JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 , s 1::v 2025 Cases referred to: 1. Galaunia Farms Limited v National Milling Company Lim ited & Another {2004) Z. R. 1 2. Nkhata and Others v The Attorney General {1966) Z. R. 124 3. The Attorney-Genera l v Ndhlovu·(1986) Z. R. 12 4. Wilson Masauso Zulu vs Avondale Housing Project Limited {1982) Z. R. 172 5. Ndongo vs Moses Mulyango & Anr -SCZ Judgment No. 4 of 2011 6. Susan Mwale Harman vs Bank of Zambia -SCZ Appeal No. 191 of 2015 7. Hyde v Clyde {1840) 49 ER 132 8 . Julika Enterprise v Zambia state Insurance Corporation, Zambia State Insurance Pension Fund and GBM Milling Company -SCZ Judgment No. 36 of 2016 9. Finance Ba nk Zambia Limited and Rajan Mahtan i v Simataa Simataa -SCZ S. J. No. 21 of 2017. 10. Atlantic Bakery Limited v ZESCO Limited -SCZ Judgment No.61 of 2018 11. Anne Scott v Oliver Scott -SCZ Appeal No 122 of 2004 12. Zambia Extract Oil s and Colourants Limited & Anr v Zambia State Insurance Pension Trust Fund Board of Trustees -Z. R. (2016) 2 ZLR 316 and SCZ Appea l No. 181 of 2009 13. Premesh bhai M Patel v Rephidim Institute Limited -SCZ Judgment No. 3 of J2 14. Match Corporation Limited v Edward Choolwe and Khalid Mohammed -SCZ Appeal No 76 of 2002 15. B. P. Zambia Pie vs Zambia Competition Commission & others -SCZ Judgment No. 22 of 2011 16. YB And F Transport Limited vs Supersonic Motors Limited- SCZ Judgment No. 3 of 2000 17. Doyle B Kapambwe v Machona Kapambwe, Henry Machina & Rose M Kamungu -CAZ Appeal No. 143 of 2017 Legislation & Rules referred to: 1. The Lands and Deeds Registry Act (LORA) Chapter 185 of the Laws of Zambia 2. The Banking and Financial Services Act, Cap 387 (since repealed) Other Materials Referred to: 1. Halsbury's Laws of England, Volume 9 (1), 4 t h edition, lexis Nexis, 2016 J3 1.0 INTRODUCTION 1.1 This is an appeal against a Judgment dated 28 th Ju ne 2024, delivered by Hon. Mrs. Justice K. E. Mwenda- Zimba und er Cause No. 2024/HPC/0002. 1.2 The dispute in the matter relates to a property known as Subdivision 8 of Stand 3481, otherwise referred to as House No. 117 Kalungwishi Street, Nkana East situate in Kitwe. (hereinafter referred to as the Property). 1.3 One Bernard Makungu, describing himself as 'Landlord' entered into a Tenancy Agreement with th e Appellant, dated p t December 2017. (Hereinafter referred to as the Tenancy Agreement). 1.4 Copies of th e Certificate of Title of the Property and the Tenancy Agreement have been noted at pages 378 to 384 and pages 385 to 389 of the Record respectively. 1.5 Clause 4 p of the Tenancy Agreement refers to an option to purchase exercisable by the Tenant. 1.6 The property was apparently sold to a third party, one Isaac Teza Kabwe, who appears to have joined the procee dings on appeal, as 4th Respondent, pursuant to a Ruling of a single Judge of this Court. 1.7 This appeal once again wi ll consid er the limited scope of setting aside findings of fact made by the lower Court and circumstances in which such findings may be set aside only for being perverse or against the weight of evidence placed before the lower Court. 1.8 The sale of the Property to the said Third Party, (now 4th Respondent), despite the existence of the option to purchase by the Tenant (The J4 Appe llant) in casu, was the subject of the dispute before the lower Court and now before us. 1.9 We will also interrogate the meaning and consequences of the option to purchase, and the respective rights of the Parties . 1.10 The Record of Appeal is presented in two volumes and reference to page numbers shall refer to the Record of Appeal unless otherwise noted . 1.11 The Parties shall be referred to as they appear in this Court. 2.0 BACKGROUND 2.1 The Appellant and Respondents (save the 4 th Respo nde nt), were Plaintiff and Defendants respectively, in t he lower Court . 2.2 It is noted tha t on 4th January 2024, the Appellant commenced proce edings in t he Commercia l Division of the High Court under Cause No. 2024/HPC/0002 which was subsequently amended after leave of Court and the amended process was filed on 27 th March 2024. This is noted from pages 199 to 206 of the Record, claiming against the l5t, 2nd and 3rd Respondents the following reliefs: ,. An order that there was an agency relationship between the 1st Defendant and the 2nd and 3rd Defendants in which the 1st Defendant was an agent and the 2nd and 3rd Defendant were the principals therefore, the principals are bound by the agreement entered into by their agent dated 1st December 2017. JS ii. A declaratory Order that the sale of house No. 117 Kalungwishi Street, Nkana East Kitwe by the Defendant to a third party is null and void as the Defendant purportedly sold the property before the due consideration of the Plaintiff in accordance with the lease agreement dated 1st December, 2017. iii. An Order for Specific Performance of the lease agreement dated 1st December, 2017. iv. Damages for breach of contract. v. An interim Injunction against the Defendant to restrain him or any other person from evicting the Plaintiff from house No. 117 Kalungwishi Street, Nkana East Kitwe and further restraining the Defendant from conveying the said house to a third party until full determination of the matter or further court Order. vi. Any other relief the Court may deem fit and just; vii. Costs incidental to the action. 2.3 The amended defence filed by the three Respondents is noted from page 210 to 214 of the Record. 2.4 The Appellant on 8th April 2024, filed its Reply which is noted from pages 220 to 222 of the Record. 2.5 It is noted that the Parties filed their respective Witness Statements, trial was subsequently held, written submissions filed, and the lower Court delivered its judgment, the subject of the appeal on 28th June 2024 which is noted at pages 6 to 42 of the Record. J6 3.0 DECISION OF THE COURT 3.1 The Court ente red Judgment in favor of t he Respondent s, havi ng found that the Appellant had fa iled to discharge the evidentiary burden incumbent upo n it. The learned Judge granted the first re lief and fou nd that th ere was an agency relationship between the p t Respondent and the 2nd and 3rd Respondents who w ere consequently bound by the lease agreement. 3.2 The lower Court declined to grant a declaration that the sale of t he property was nu ll and vo id for lack of evidence. Consequently, the claim for specific performance was not gran t ed. 3.3 The lower Court also dismissed the claims for damages for breach of cont ract there being no evidence of any loss su ffere d . 3.4 Th e claim for an inju nction was equa lly dismissed. Costs were awarded to the Respondents. 4.0 THE APPEAL 4 .1 Dissatisfi ed with th e sa id Judgme nt in the Court below, the Appellant filed its Notice and Memorandum of Appeal, on 11th July 2024, advancing five (5) grounds of appeal, as follows. Ground one The Learned Judge below erred both in law and fact in interpreting Clause 4{p) of the Tenancy Agreement when she held that there was no connection between the Appellant's right of first refusal to purchase the property and J7 the fixing of notice at the front of the property by the Respondents intimating the same is to be sold without critically interrogating why Clause 4(p) only required the Respondents to f ix the notice at the front of the property if the parties fail to agree on the purchase price. Ground Two The Learned Court below erred both in law and fact when it held that the Appellant was given a right of first refusal when the Appellant was verbally informed on phone of the sale of the property despite the judge finding as a matter of fact, that the Respondents did not get back to the Appellant after the Appellant made a counter offer on the purchase price and despite the judge holding that the failure to fix the notice indicating that the property was on sale by the Respondents was clear breach of Clause 4(p) of the tenancy agreement. Ground Three The Learned Judge below erred both in law and fact when she correctly held that there was a clear breach of clause 4(p) of the Tenancy agreement dated 1st December, 2017 but dismissed the claim of damages for breach of contract on the basis that there was no evidence that the Appellant "suffered any damages" without considering referring the determination of damages for assessment. Ground Four The Court below erred in law and in fact when it held that there was no evidence to annul the contract of sale between the 2nd Respondent and a 3rd J8 party in relation to the property and further dismissed the Appellant's claim of specific performance without considering or ignoring the fact that the contract of sale between the 2nd Respondent and a 3rd party was irregular on the following basis; ,. That the satisfaction of Clause 4(p) was a conditional precedence to the Respondent's right to sale the property to any other person other than the Appellant of which the trial judge below correctly held that Clause 4(p) was clearly breached. 11. That despite the property being jointly owned between the 2nd and 3rd Respondents only one owner (2nd Respondent) purportedly sold the property without any evidence of power of attorney from the 3rd Respondent giving her right to sale on behalf of the 3rd Respondent or without even stating in the contract of sale that she was selling on her own behalf and on behalf of the other owner (3rd Respondent). Ground Five The Learned Judge below erred both in law and fact when she awarded costs to the Respondents when all the three (3) disputed legal issues of the matter were found in favor of the Appellant herein. 5.0 THE CROSS APPEAL 5.1 The Responde nts fi led their Notice of Cross Appea l dated 26t h August 2024 which is seen in the Respondents' Supplementary Record of Appea l filed on J9 22nd October 2024. There is no Notice of the Cross Appeal in the Record of Appeal. 5.2 The Cross Appeal is based on one ground as follows: "The Trial Judge erred in law and fact when she held that there was an agency relationship between the 1st Defendant and the 2nd and 3 rd Defendants relating to the lease agreement and that the 2nd and 3 rd Defendants are bound to the lease agreement." 6.0 APPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPEAL 6.1 We have duly considered and appreciated the Heads of Argument filed on 9 th September 2024. These are on record and have been fu.lly considered . They will not be restated save for emphasis as appropriate in the reasoning of the Court. 6.2 We have also seen th e Appellant's Heads of Argument in reply to the 4th Respondent's Heads of Argument filed on 26th August 2025. We will refer to the filing of these later in our Ju dgment. 7.0 RESPONDENT'S HEADS OF ARGUMENT 7.1 We have equally considered the l5t, 2nd and 3rd Respondents' Heads of Argument filed on 22nd October 2024. These too, are on record, have been fully considered and will not be re-stated save for emp hasis as appropriate in the reasoning of the Court. JlO 8.0 4 TH RESPONDENT'S HEADS OF ARGUMENT 8.1 The 4th Respondent filed it s Heads of Argument dated 20th August 2025. The circumstances in which these we re filed so belated ly is not clear, and neither is there any proof of leave having been gra nted to file these outside the time frame of the Rules of Court. We w ill speak about this later in our Judgment. 9.0 THE HEARING 9.1 At the hea rin g, Counsel for the Appellant and t he 1st to 3 rd Respondents placed reliance on th eir heads of argument. Counsel for the 4t h Respondent did not attend the hearing and did not fi le notice of non-appearance. There being an affidavit of service of 7th November 2025, the Court was satisfied that th e 4th Respondent was aware of the dat e of hearing. 9.2 The Court was therefore unable to establish the circumstances under wh ich the 4th Respondent filed his heads of argument on 20th August 2025. Suffice it to state that there being no evid ence of leave having been obtained, we will not place re liance on the Arguments or take into account the Appel lant's Heads of Argument filed in Reply on 26th August 2025 . 9.3 Counsel for t he Appellant in augmenting the submissions filed, repeated the contents of the arguments which we have not ed and considered. Th e thrust of Counsel's submission was the breach of the opti on to purchase and the manifest error by the trial Court in condemn ing the Appellant in costs. It was Coun se l' s argument that having posed three det erm inative questions, all of Jll w hich were answered in favour of the Appel lant, the lower Court erred in not awarding costs to the Appe llant. 10.0 ANALYSIS AND DECISION OF THE COURT 10.1 As a preliminary observation, we cannot help but observe t he untidy and careless manner in w hich the Record of Appeal was presented. The three Respondents were cited as th e three Defendants on the cover and index pages of the Record of Appeal. The cross appeal was not included in the Record, causing the p t to 3rd Respondents to file a Supplementary Record of Appea l so as to include it. The spelling of the word 'Ground' was wrong under all five grounds of appeal, such that we are left dismayed and disappointed at the quality of work being presented before the Superior Courts. 10.2 We have carefully cons idered the submissions advanced on behalf of the Parties. The Appel lant has argued grounds 1 and 2 together and we sha ll add ress them together. The gist of the arguments advanced in support of grounds 1 & 2 of t he appeal, t he lower Court's finding that there was no connect ion between the Appella nt's right of first refusal to purchase the Property and the affixing of the notice at t he front of the property as stated in clause 4(p) of the Tenancy Agreement. 10.3 The lower Court, in its detailed analysis of the right of first refusal , carefully cons idered t he evidence before the Court. Upon analyzing the evidence of the witnesses, the back and forth between the Parties on the offers exchanged, the learned Judge arrived at the finding that the Respondents did J12 in fact offer the Property to the Appe llant at the price of Kl.5 million which offer was not accepted by the Appellant who instead made a counter-offer. 10.4 The lowe r Court also placed re liance on the learned authors of Halsbury's Laws of England 1 on Contracts, on t he issue of counter offers. It was the finding of the learned Judge that t he counter offer had the effect of terminating the initial offer. For this finding, the learned Judge placed reliance on th e decision of the Supreme Court in the case of Galaunia Farms Limited v National Milling Company Limited & Another .1 10.5 As a general rule, an appellate Court rarely interferes with findings of fact by a lower Court. The circumstances under which an appellate Court will interfere w ith a lower Court's finding of fact were set out in the case of Nkhata and Others v The Attorney General,2 a case cited with approval in the case of The Attorney-General v Ndhlovu.3 10.6 This principle was similarly confirmed in the settled cases of Wilson M asauso Zulu vs Avondale Housing Project Limited 4 , Ndongo vs Moses Mulyango & Anr5 and Susan Mwale Harman vs Bank of Zambia6 . All of these authorities have established the principle that an Appel late Court will on ly reverse findings of fact made by the trial judge where the findings in qu estion were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the evidence, no trial cou rt acting correctly cou ld reasonab ly make. 10.7 Having perused the Record, and the Judgment of the lower Court, we have no inclination to disturb this finding, more so that the Appellant t estified that it allowed people to view and in spect the Property. The right of first refusal J13 or the 'option to purchase' in casu, must be correctly un derstood in t he circumstances. It is simply that. It does not mean that the Landlord cannot sell the Property to another interested party if there is no suitab le offer and acceptance between the Parties. The law is settled, and this position was affirmed by the old case of Hyde v Clyde 7 which position was affirmed and adopted by the Supreme Court in the cite d case of Galaunia Farms. It is a settled position that the offer was extended, dec lin ed and stood discharged. This was a sound finding of fact and law made by the lower Court. 10.8 In a subsequent decision of the Supreme Court, rendered in the case of Julika Enterprise v Zambia state Insurance Corporation, Zambia State Insurance Pension Fund and GBM Milling Company,8 the Court (though dealing w ith the issue of rights of pre-emption, we are of the view that the principle is applicable in casu), guided that a right of pre-emption confers an opportunity not a guarantee to purchase under the offeror's terms . We t herefore agree with the finding th at once refused, there was no further entitleme nt that the Appella nt co uld hold on to or enforce. 10.9 To th is extent, the argument advanced by the Appellant in its head s of argument, and submissions made viva voce, to canvass the po int that a finding of an agency relationship, must as a matter of necessity mean that th e option to purchase had been abrogated, is based on an erroneous understanding of the law. Th e Appe llant has tried to co nvince us that such finding must be reversed for being perverse. We simply do not accept this line of submission, no matter how forcefully argued and repeated. J14 10.10 We also do not fault the Respondents for failing to affix the Notice on the property, as this did not negate the attempts made by the Respondents to offer the Property first to the Appellant. We do not accept the argument that there was a mandatory nexus between the finding of an agency relationship, the right of first refusal and the fixing of the notice as canvassed by the Appellant as it was not able to prove any resultant loss. Again, the lower Court found that though this requirement was breached, there was no resultant damage or any loss that the Appellant could prove. As a consequence of our determination, we find no merit in grounds 1 & 2 and these are dismissed. 10.11 In arguing ground 3, th e Appellant has argued that the learned Judge erred both in law and fact when despite finding that there was breach (for failure to affix the notice on the Property), there was no corresponding loss suffered by the Appellant. It is argued that every breach must be redressed in the form of damages and that the lower Court erred in not referring the matter for assessment of damages. Reliance was placed by the Appellant on the case of Finance Bank Zambia Limited and Rajan Mahtani v Simataa Simataa9 . 10.12 We have noted the evidence before the lower Court and agree with the trial Judge that no evidence was placed before the Court to warrant a finding of loss or damage. We equa lly agree with the submissions of the Respondents who have argued that the Appellant did not place any material before the lower Court to prove any financial loss or damage sustained by it, to necessitate an award of damages in its favor. In this context, we are guided JlS by the decisions of the Supreme Court rendered in the cited case of Galaunia Farms where the Court held as follows: "An Appellant must prove his case and if he fails to do so, the mere failure of the opponent's defence does not entitle him to judgment. " 10.13 The argument on clause 4(p) being a condition precedent, is akin to flogging a dead horse. We find no merit in ground 3 and dismiss the same. 10.14 With respect to ground 4, it is argued that the lower Court erred in not granting the Appel lant's claim of specific performance and by ignoring the fact that the contract of sale between the 2nd Respondent and the third party (4th Respondent), was irregular. Once again, we have examined the Record and note that the third Party was not added to the proceedings, and neither was there any pleading to the effect of the irregularity of the contract of sale to th e third party or any other challenge aga in st th e sale of the Property. The case of Atlantic Bakery Limited v ZESCO Limited 10 is clear guidance on the principle that matters in contention must be pleaded. Having not been pleaded, this ground is simp ly an attempt at raising a red herring. 10.15 It is also of no concern whether th e 3rd Respondent consented to the sale of the Property as argued by the Appellant. That is a matter between the Respondents and cannot be raised as an incidental challenge by the Appe llant. Re liance on th e case of Anne Scott v Oliver Scott,11 is misplaced in the context, as the disp ute, if any, shou ld lie between the 2nd and 3rd Respondent. It is not for the Appellant to champion a non-existent dispute . J16 10.16 We also note with incredulity that th e Appellant purports to make reference to section 5 (1) of the Lands and Dee ds Registry Act {LDRA) 1 . First ly, section 5(1) as cited by the Appellant does not exist. What is mor e card ina l in th is entire appeal and in the matter before the lower Court, is the fact that the Appellant has comp let ely overlooked th e man datory provisions of sections 4 (1) and 6 of the LDRA1 . Ordin arily, the fact of non-registra ti o n of the Tenancy Agreement, ren dered the document (and any rights accrued un der it), null and void . Howeve r, this issue not having been raised in the lower Court, we have left it and determin ed the appeal on its merits. 10.17 In the case of Zambia Extract Oils and Colourants Limited & Anr v Zambia State Insurance Pension Trust Fund Board of Trustees 12 , the Supreme Court held that the fundam ental principle in assessing the effect of statute law upon contracts, is whether the statute intend ed to affect contracts and make them void th ereb y depriving the contracting pa rty th e benefits under th e contract . In that case, the Supreme Court held t hat although a mortgage transaction was made and performed contrary to section 17 of the Banki ng and Fin ancial Services Act 2 , the fact th at t he len der lent money w ithou t a licence did not invalidate the contract, since t he Act provided for a fin e in th e event of a breach. In casu, the Tenancy Agreement was not automatically voided for lack of regist rat ion. However, as we have noted above, this point is rendered moot, as it w as not raised by th e Part ies or th e lower Court. 10.18 For th e position we have es poused, we place relia nce on the case of Pre mesh bhai M Patel v Rephidim Institute Limited 13 where the Supreme Court noted as fo llows: J17 " In resolving this appeal, we shall begin with the last issue raised by the learned counsel for the appellant concerning the non-registration of the lease agreement and its effect on the lease agreement. The law in sections 4 (1) and 6 of the LORA is that a document purporting to grant, convey or transfer land or any interest in land, or be it a lease, if it is for a longer term than one year it must be registered and that if it is not registered, the document shall be null and void and cannot therefore be relied upon in Court ....... Our firm position on this issue is that we have no quarrel with the provisions of sections 4 and 6 of the Act for this is the law. However, in the current case, since the Appellant did not raise this issue in the Court below, he cannot raise it before us as the Appellant waived his rights to raise this issue". 10.19 We have also not lost sight of the fact that an order of specific performance is a discretionary remedy, which may only be awarded if the tria l Court is satisfied that the conditions exist for it to make the said award. This principle was echoed in the case of Match Corporation Limited v Edward Choolwe and Khalid Mohammed 14 • In casu, we see no reason to fault the reasoning of the trial Court when it found that no evidence had been led to annul or challenge the sale to the third party, who had not been heard and co nsequently refused to hold tha t the same was nul l and void . This fin ding is grounded in the evidence and pleadings before the lower Court. There is no merit in ground 4 wh ich is also dismissed . J18 10.20 With respect to ground 5, the Appellant has challenged the award of costs in favor of the Respondents. Whilst agreeing t hat costs lie in the discretion of the Court, the Appellant has argued that the Court posed three questions for determination and all of these were reso lved in favor of th e Appe lla nt, and hence the lower Court erred in awarding costs against it. 10.2 1 We have considered this li ne of argument and the Record. It is mis founded to argue that the Court determ ined all three questions in favour of the Appellant. From the Record and specifically on page 34, it is clear that the Co urt posed three questions for its det ermination . The answer to these questions (even if these were resolved in favour of the Appellant), did not necessarily lead to any meaningful success on the part of the Appellant. What is success and how it is measured , lies in the discretionary province of the tria I Court. 10.22 We have noted that the Appellant claimed six substantive reliefs. This was seen from the Amended Writ of Summons and noted at paragraph 2.2 above. Of the six reliefs, the Appellant was only successful in one, being the one where the tri al Court found in its favor on the issue of Agent/Principle. However, that was an academic finding as it did not affect the final outcome of the case. Paragraphs 10.20 to 10.25 at page 40 & 41 of the Record, being the Judgment of th e lower Court, summarize the findings of the Court on the claims of the Appellant. 10.23 A sound principle in our Jurisdiction settles the position that while costs are awarded in the discretion of the Court, these are generally awarded to the successful party. The cases of B. P. Zambia Pie vs Zambia Competition J19 Commission & others15 , YB And F Transport Limited vs Supersonic Motors Limited 16 and Doyle B Kapambwe v Machona Kapambwe , Henry Machina & Rose M Kamungu 17 refer. It is highly mischievous to advance t he argument that the Appellant was successful on three of the re li efs claimed. We see no reason to interfere with the discretion exerci sed by the learned Judge on the issue of costs. 10.24 We noted that the pt to 3rd Respondents have raised a cross appeal and which is stated at paragraph 5 above. However, with the d ismissal of the appeal on all five grounds and having already determined on the issue of the agency relationsh ip, and the option to purchase, it has becom e otiose, if not aca demic, to consider the cross appeal. 11.0 CONCLUSION 11.1 The appeal is dismissed with costs to the p t to 3rd Respondents only, to be taxed in defau lt of agreement. M. J. SIAVWAPA JUDGE PRESIDENT F. M. CHISHIMBA A. N. PATEL S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J20