Grandview Properties Limited v Propark Property Development Limited (APP/243/2023) [2024] ZMCA 323 (31 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA: HOLDEN AT LUSAKA (Civil Jurisdiction) \.\Yi\.lC OF lAMllt,-1 APP/243/2023 BETWEEN: GRANDVIEW PROPERTIES LIMI AND ~~~00R1 OF Ar/'£,4,l \ : CIVIL Rr;o1~TJ1> 't -~ ' ii~~ ;~~ -· - ELLANT PROPARK PROPERTY DEVELOPMENT LIMITED: RESPONDENT CORAM: SIAVWAPA JP, BANDA-BOBO AND PATEL SC, JJA On 17th September and 31 s t October 2024 FOR THE APPELLANT : MR. W. CHISONGA OF AUGUST HILL & ASSOCIATES FOR THE RESPONDENT: MR. M. NKUNIKA OF SIMEZA, SANGWA & ASSOCIATES J U D G M E N T SIAVWAPA JP delivered the Judgment of the Court Cases referred to: I. Zambia Electricity Supply Corporation Limited v Redlines Haulage Limited SCZ Judgment No. IO of 1992 2. Turnkey Properties v Lusaka West Development Company Ltd & Others SCZ Judgment No 3 of 1984 3. Lydia Makumba v Robin Kalikiti SCZ Appeal No. 13 of 1993 4. The Minister of Home Affairs and Attorney General v Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Center for Constructive Resolution of Disputes 5. Murray v Roberts Construction Ltd and Lusaka Premiere Limited and Another 6. Savenda Management Services v Stanbic Bank Zambia Ltd 2018 ZMSC 413 7. Belmont Finance Corp Ltd v Williams Furniture Ltd No 2 1980 1 All ER 393 8 . Setrec Steel & Wood Processing Limited and Others v Zambia National Commercial Bank PLC 2018 Z. R 124 9. Trans-Continental Limited and Andrew Robb v Donald McIntosh and Eric Routledge, SCZAppeal No 126 of 2012 10. York Farms v Cee Cee Freight Appeal No 120 of 2010 Legislation and other works referred to: 1. The Court of Appeal Act No 7 of 2016 2. The High Court Act Chapter 27 of the Laws of Zambia 3. The Rules of the Supreme Court of England 1999 (White Book) 4. Halsbury 's Laws of England, 3 rd Edition, Volume 36 5. Contract Law in Zambia, 2 nd Edition, Juta Company (Pty) Limited 1 921 1.0 INTRODUCTION 1. 1 This appeal is against the Judgment delivered by the Honorable Mrs. Justice B. G. Shonga on 24th April 2023 in the Commercial Division of the High Court. 1.2 By the said Judgment, the learned Judge granted an order of specific performance to the Respondent which had claimed for resc1ss1on alongside specific performance as stand-alone claims. J2 2.0 BACKGROUND 2.1 By a Lease Agreement dated 20th November 2008, the Agricultural and Commercial Show Society of Zambia (ACSSZ) leased out 5 ,000 square meters of Stand 2374 Lusaka (the Subject property) to the Respondent for a period of 50 years. 2 .2 Subsequently, by an agreement dated 6 th February 2018, the Respondent contracted to sell to the Appellant the unexpired residue of the lease relating to the subject property together with the unexhausted improvements thereon for a consideration of US$ 4 ,800,000.00 2.3 The purchaser was to pay the purchase price in instalments beginning with the payment of US$500 ,000.00 on signing the contract followed by five subsequent instalments ending on 30th April 2020. 2 .4 It was a further term of the contract that the initial deposit payment of $500,000.00 was non-refundable in the event of · default by the purchaser in the subsequent years. 2 .5 The Respondent paid the first instalment on 22nd February 2018 and made another payment amounting to $500,000.00 on 28th December 2018, six months after it was due. 2.6 The Respondent did not pay the next instalment which was due on 30th April 2019. As a result, the parties executed an addendum to the contract (Addendum 1) , on 13th June 2019, varying the terms of payment of the purchase price. The new J3 terms were that the remainder of the purchase price would be paid on or before 30th April 2022. 2.7 Following the Appellant's failure to make payment as set out in Addendum 1, the parties executed another addendum to the contract (Addendum 2); on 12th September 2019. The addendum set out the rate of interest payable on all deferred payments. It further stated that the Appellant would forfeit all sums paid to the Respondent in the event of default. 2.8 On 3 r d June 2020, the Respondent issued a notice of intention to complete, to the Appellant. the notice further provided that failure to comply with the notice within fourteen days would amount to breach of contract. 2.9 As at 16th November 2021, the Appellant had only paid the sum of US$1, 200,000.00 leaving a balance of USD$ 3,600,000.00 on the purchase price. 2.10 The Appellant did not pay the balance on the purchase price prompting the Respondent to commence an action in the Court below. 3.0 THE MATTER IN THE COURT BELOW 3.1 By writ of summons dated 12th January 2022, the Respondent sought the following reliefs: i. An order for specific performance of the contract ii. Damages as pleaded iii. An order for rescission of the contract J4 iv. An order that the Appellant forfeits money paid towards the purchase consideration v. Damages for breach of contract vi. Interest vii. Costs 3.2 To support its claims, the Respondent argued that it was an express term of the contract between the parties that it would sell the residue of its unexpired lease with ACSSZ as Lessee. 3 .3 The Respondent alleged that the Appellant had defaulted on its payment obligations under the contract and failed, neglected or refused to pay the purchase price in breach of the contract executed by the parties. 3.4 That as a result, the Respondent had suffered loss of profits in form of rentals from the building, legal fees , estate agent fees and transfer of property fees paid to the ACSSZ. 3.5 The Appellant settled its defence on 27th January 2022 wherein it contended that the contract between the parties did not relate to the unexpired residue of the Respondent's lease but was for the sale of the subj ect property. 3.6 According to the Appellant, the terms of its contract with the Respondent could not be enforced because the Respondent did not have title to the land. 3 . 7 As regards the claim for profit in rentals, the Appellant argued that for most of the period the Respondent was in possession JS of the property, it maintained a billboard advertising the property for sale. As a result, it was difficult for the Appellant to commercially use the land. 4.0 THE COUNTERCLAIM 4 .1 The Appellant denied all the claims by the Respondent and counter-claimed as follows: I. II. III. W. V. VI. An order of rescission of the contract of sale dated 6th the Febrnary 2018 between Respondent due to a total failure of consideration as to the subject matter and or legal capacity of the Appellant in relation to the land agreed to be sold. the Appellant and An order for the refund of the sum of US$ 1,200,000.00 being money had and received by the Respondent as deposit payment under contract dated 6th Febrnary 2018 for the use of the Appellant. In the alternative, an order for rescission ab initio of the contract of sale dated 6th Febrnary entered into between the Appellant negligent and Respondent misrepresentation of material facts on the part of the said Respondent. for in the alternative, special damages for Further, misrepresentation off acts by the Respondent in the sum of US$ 1,200,000.00 and legal fees paid to Messrs A. D. Davids being conveyance fees together with sums of rentals paid the Agricultural and Commercial Society of Zambia and further general damages for negligent misrepresentation. An order for interim relief Any other relief the Court may deem fit J6 VII VIII. Interest Costs 5.0 DECISION OF THE COURT BELOW 5.1 After analysing the pleadings and the evidence, the learned trial Judge found that there was a valid and enforceable contract for the sale of land. 5.2 The learned Judge then granted an order for specific performance for two reasons; 1. That the Appellant had taken possess10n of the property and 2. That if not granted, the Appellant would forfeit the USD 1, 200, 000.00 it had paid pursuant to addendum 2 5.3 The learned Judge relied on Order 18/ 15/6 of the Rules of the Supreme Court 1999 edition and the Halsbury's Laws of England, volume 44 paragraph 522 to dismiss the claim for resc1ss10n. 5 .4 In light of the order for specific performance, the learned Judge refused to make an order of forfeiture of the amount paid towards the purchase price. The learned Judge however, awarded damages for breach of contract. 6.0 THE APPEAL 6.1 The Appellant was unhappy with the outcome of the case and lodged this appeal on the following grounds: J7 i. That the lower Court erred in law and fact when it elected, on to grant specific performance over rescission despite the Respondent not pleading the said inconsistent reliefs in the alternative. its own volition ii. That the lower Court erred in law and fact when it failed to indicate the basis for opting to grant one inconsistent remedy over another. 7.0 ARGUMENTS IN SUPPORT 7.1 The gravamen of the argument 1n support of ground one is that having found that the claim for specific performance was inconsistent with the claim for rescission of the contract; the learned Judge had no power to choose either of the two. 7 .2 The Appellant argued that the learned Judge should have instead struck out or set aside the pleadings. It relied on the case of Zambia Electricity Supply Corporation Limited v Redlines Haulage Limited1 for the submission. 7.3 In the alternative the Appellant argued that damages would have been an appropriate remedy in the instant case even though the subject matter is land. The Appellant relied on Halsbury's Laws of England, 3 rd Edition, Volume 36, Paragraph 370 and the cases of Turnkey Properties v Lusaka West Development Company Ltd & Others2 and Lydia Makumba v Robin Kalikiti3 . 7.4 In ground two, the Appellant argued that the Court below, failed to clearly state why it chose rescission over specific performance as the appropriate relief. It relied on the cases of J8 The Minister of Home Affairs and Attorney General v Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Center for Constructive Resolution o[Disputes4 and Murray v Roberts Construction Ltd and Lusaka Premiere Limited and Another5 , in support of the argument. 8.0 ARGUMENTS IN OPPOSITION 8.1 The Respondent disputed the argument that the pleadings contained two inconsistent claims. According to the Respondent, a party is at liberty to seek any relief and the Court has the discretion to decide which reliefs to grant pursuant to Section 13 of the High court Act. The Respondent relied on the cases of Savenda Management Services v Stanbic Bank Zambia Ltd6 and Belmont Finance Corp Ltd v Williams Furniture Ltd7. 8.2 Further to the above, the Respondent argues that even if the statement of claim were defective, the way to remedy it would be to apply under Order 19 Rule 19(3) and Order 2 Rule 1 of the Rules of the Supreme Court of England. In support, the Respondent relied on the case of Setrec Steel & Wood Processing Limited and Others v Zambia National Commercial BankPLCB. 8.3 In response to ground two, the Respondent, asked us to vary the Judgment of the Court below and substitute specific performance with rescission. J9 9.0 OUR ANALYSIS AND DECISION 9.1 We have considered the grounds of appeal, the arguments by counsel and the Judgment of the Court below. We are of the view that the issue we are called to adjudicate upon is whether the Court below directed itself well when it chose to grant one of the two opposing reliefs not pleaded in the alternative. 9.2 In order to appreciate the contention, it is necessary to break down the two reliefs. The first relief sought by the Respondent is an order for specific performance of the contract. This relief, whenever granted, compels the party in breach of a term of the contract to fulfil it so that the contract is carried out to the satisfaction of the parties' intended objectives. 9.3 For a definition of specific performance, we adopt the one cited with approval by the Supreme Court of Zambia in the case of Trans-Continental Limited and Andrew Robb v Donald McIntosh and Eric Routledge, 9 which states as follows; " .. .. specific perfonnance is equitable relief, given by the Court to enforce against a defendant the duty of doing what he agreed by contract to do..... the availability of the remedy of specific perfonnance does not of itself import the existence of some equitable interest; all it imports is the inadequacy of the the particular common circumstances." remedy of damages law in 9 .4 In light of the above definition, it follows that in the case at hand, the Respondent asked the Court to order the Appellant to sell the property as agreed by the parties and in the same breath asked the Court to rescind the contract. JlO 9.5 The question then is can the Court grant both reliefs? The answer is certainly in the negative as the two reliefs are at variance and therefore, mutually exclusive. It is not possible to enforce a contract of sale and at the same time order its cancellation. 9 .6 The learned authors of Contract Law in Zambia, 2 nd Edition, Sangwani Patrick Ng'ambi and Chanda Chungu, define rescission of contract as; " .... .. an order of the Court returning the parties to their original pre-contract position." Thus, by seeking this remedy, the Respondent wished that the parties be relieved of their duties and obligations under the contract of sale. 9.7 The effect would be that no contract to sell and to buy was entered into and any money paid towards the purchase price would be returned to the buyer. 9.8 The alternative would be for the learned Judge to choose between the two remedies, which she did in this case. The question then is whether the learned Judge had the power to do so. 9.9 Order 18 Rule 15(1) of the Rules of the Supreme Court of 1999 edition provides that the statement of claim must state specifically the relief or remedy which the Plaintiff claims. 9.10 Rule 18/ 15/6 goes on to explain: "A plaintiff cannot claim relief which is inconsistent with the relief that he has explicitly claimed .... However, there is nothing to prevent Jll a plaintiff from setting up two or more inconsistent sets or material facts and claiming relief thereunder in the alternative. " 9.10 This means that where a party claims inconsistent reliefs, one of the reliefs must be in the alternative. Claiming a relief in the alternative gives the trial Court the leeway to consider the remedy in the alternative if the first relief is not granted. 9.11 It is therefore, our considered view that the Respondent's argument that Section 13 of the High Court Act, confers upon a Judge of that Court discretionary power to grant all such reliefs to which any party may be entitled to in respect of any and every equitable claim or defence arising in a cause or matter, is erroneous. 9.12 With regard to the above, the Supreme Court, in the case of York Farms v Cee Cee FreiqhtJO guided that the Court will always grant a plaintiff any general or other relief to which he is entitled provided it is not "inconsistent with the relief that is expressly asked for" 9.13 Clearly, as in this case, parties can claim inconsistent reliefs in the statement of claim but they must be expressed as one being the main claim and the other(s) as the alternative. 9.14 Further to the above, any relief granted by the Court pursuant to Section 13 of the High Court Act should not be inconsistent with any other relief pleaded in the statement of claim. 9.15 In our view, Order XVIII of the High Court Rules and Order 18 Rule 19 of the Rules of the Supreme Court contemplated that J12 a party could file inconsistent claims by providing for a Judge to grant leave to amend pleadings that may prejudice, embarrass or delay the fair trial of the action. 9.16 In the instant case neither party noted the inconsistent reliefs. In fact, the inconsistency was noted in the Judgment of the Court below. Obviously at that stage, the learned Judge could not amend the pleadings Suo moto. 9.17 In the Redline Haulage case (supra) cited by the Appellant, the Supreme Court stated that it was important for litigants to fallow the rules of pleadings and in certain cases failure to do so may prove fatal to one's case. 9.18 We have combed the Record of Appeal and found that at all times the Respondent claimed both specific performance and rescission of the contract concurrently as there is nothing on record to indicate that one was being claimed in the alternative. 9.19 The learned trial Judge opted to grant specific performance and struck out the claim for rescission which, given what we have stated above, was misdirection. It was not for the Court to decide whether to uphold or rescind the contract. 9.20 The danger of making an election on behalf of a plaintiff is evident in the present case where the Respondent now claims the Court below should have awarded rescission and not specific performance. J13 9 .21 The Appellant has also made the point that the learned Judge failed to give any reason for her decision to amend the pleadings by choosing one and not the other of the two inconsistent reliefs sought. 9.22 From our reading of the learned Judge's Judgment, it appears that the learned Judge based her choice on two factors namely; that the Respondent had taken possession of the property and that it would forfeit the money paid towards the purchase of the property pursuant to Addendum 2 of the contract. 9.23 It is therefore, not true that the learned Judge failed to give reasons for her decision. The only issue is whether the reasons satisfy the requirements of the law. 9.24 From the above cited authorities, the reasons do not satisfy the requirements of the law as it stands. The remedy is to amend the pleadings upon application by the Plaintiff. 10.0 CONCLUSION 10.1 Consequent to our analysis above, we find that the learned Judge in the Court below misdirected herself by electing to choose between two inconsistent reliefs. The pleadings were defective and liable to be set aside. 10.2 We therefore, find merit in the appeal and set aside the Judgment of the Court below. J14 10.3 It is also our firm view that because the defect is curable and the statement of claim discloses a cause of action, the record should be remitted to the High Court. 10 .4 We accordingly remit the Record to the High Court Commercial Division for a fresh hearing before a different Judge . 10. 3 Given the circumstances of the case and the blameworthiness of the Appellant for the defective pleadings, we order each party to bear its own costs. J. M. SIAVWAPA JUDGE PRESIDENT A. M. BANDA-BOBO A. N. PATEL SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE JlS