Ike Mungwala v Maxwell Chinkuli and Anor (2021/HP/0911) [2022] ZMHC 94 (30 March 2022)

• 2021/HP/0911 J1 BET W. E EN: IKE MUNGWALA AND · PLAINTIFF MAXWELL CH INKULI MAXINE KA LINGA CHINKU LI 1s t DEFENDANT 2 nd DEFENDANT Before Honourable Mrs. Justice M. Mapani-Kawimbe in Open Court on the 3Qth day of March 2022 For the Plaintiff Mr. M. Macwani, Mess rs Butler & Company Legal Practitioners For the D efendants: Mr. W Mweemba, M essrs Mweemba & Company JUDGMENT Cases re ferred to: 1. RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (UK Production) GmbH (201 0) UK SC 14 2. Attorney General of Belize et al v Belize Telecom Ltd & Another (2 009) 2 ALL ER 11 27 3. Gondwe v Ngwira SCZ Appeal No. 37 of2017 4. Smith 'Sawila v the Attorney General & Another SCZ Appeal No.1 of 2 019 5. Sithole v State Lotteries Board (1975) ZR 106 6. Derry Vi Peek (1990) AC 337, 334 7. Kalusha Bwalya v Chadore Properties and Jan Chamunora Nyalugwe Haruperi SCZ Appeal No. 222 of 2013 .. • Introduction J2 1) At the heart of this dispute is a dwelling house on stand no. 13554 Chalala, in Lusaka. The defendants alleged that they bought it from the plaintiff through a contract of sale which the parties executed on 17th May 2021. The defendants also alleged that they paid the full purchase price and thereafter were entitled to it. On the other hand, the plaintiff disputed the facts asserting that he never sold the defendants his house. Instead , they lent him ZMW149,000 and the parties agreed to disguise the loan as a contract of sale for the house. Through this suit, the plaintiff seeks the return of the house contending that the defendants fraudulently obtained it from him. Pleadings 2) By way of amended writ of summons and statement of claim, dated 10th August 2021, the plaintiff sought the following orders against the def end an ts: (i) An order for specific performance of the loan agree ment executed between the plaintiff and the defendants on 25th January 2021 . (ii) An order that the plaintiff is the legal owner of the property situated on stand no. 13554, Chalala, Lusaka. (iii) An order that the change of title of property situated at stand no. 13554, Chalala is null and void and that the I .. J3 lette r of sale, agreement and assignments executed were procured through trick and fraud. (iv) An order that the certificate of title of the property situated at stand no. 13554, Chalala reverts back in the names of the plaintiff (v) Damages (vi) Costs and interest on amount found due (vii) Further or other reliefs that the court may deem fit. 3) The plaintiff pleaded that he entered into a loan agreement with Mr. Collins Kabali (T / A Prudent Solutions Limited) from whom h e borrowed ZMW55 ,000. He was supposed to pay back the money within three months a t an interest rate of 35% . He defaulted on the repayments and on 25 th January 202 1, borrowed ZMW149 ,000 from the defendants to pay back Mr. Kabali. As collateral for the loan, the plaintiff pledged his property on stand no. 13554 Chalala, Lusaka . 4) The plaintiff averred that, before the defendants disbursed the loan, h e signed the contract of sale but did not intend to sale his property. On the other hand, the defendants did not give h im copies of the transactions. The plaintiff a dded that h e acted out of desperation because his business was facing challenges, which had been influenced by the Covid 19 pandemic. .. J4 5) The plaintiff further pleaded that the defendants unilaterally chan.ged his certificate of title into their names. They claimed that he owed them over ZMWS00 ,000, which had a component of illegal penal interest. He nevertheless, intended to pay the defendants their money and had identified a prospective buyer for his house at ZMW877, 100. After he informed them of his intention, the defendants refused to return his title deed. As a result, the plaintiff suffered damage and los s. In concluding, he urged the court to grant him th e reliefs that were placed before it. 6 ) In response, the defendants entered appearance on 17th August 2021 and filed a defence and counterclaim. They a sserted that th e plaintiff sold them the suit house and a contract of sale was signed by the partie s. They paid him ZMW304 ,000 and he subsequently obtained State consent to assign. He also paid property transfer tax to Zambia Revenue Authority (ZRA) and execu ted a deed of assignment. Accordin g to th e defendants, the plaintiff's actions facilitated change of ownership of the property to them. • JS 7) The defendants averred that the plaintiff thereaft er , voluntarily handed them his certificate of title no. 36122 for the suit house, together with the tax clearance certificate and assignment. The documents were later lodged with the Registrar of Lands and Deeds and title subsequently issued by th e Commissioner of Lands to the def end an ts under certificate of title no. 102257. 8) They d e nied that they entered into a loan agreement with the plaintiff which included penal interest. Further, that they offered the plaintiff the option of selling his house so that h e could redeem his loan with Mr. Kabali. As far as the defendants were concerned, the plaintiff was not entitled t o any remedy and they concluded by urging the court to dismiss his case. The defendants asserted that they owned stand no. 13554 Chalala, Lusaka, which they bought from the plaintiff. All the necessary documents were executed and the full purchase price paid. They went on to counterclaim the following: (i) (ii) Vacant possession of stand no. 13554 Chalala, Lusaka. R entals and mesne profits from 3 0th June 2021, being the date of practical completion of the conveyance until the date of yielding vacant possession. J6 (iii) Costs and any other relief the court may deem fit to award. 9) The plaintiff filed a defence to the counterclaim and reply dated 1st October 2021. He averred that the 1st defendant, fraudulently and unjustifiably changed the title of his house into the defendant's names. He contended that the defendants' contract of sale was defective because it did not bear his signature, and in any case, had not been authenticated. According to the plaintiff, the inadequacy 1n the contract entailed that it was not successfully executed by the parties. As such, it was invalid, fraudulent and did not bind him to any obligation. 10) The plaintiff further averred tha t , there were transa ctions that the parties conducted outside the agreed terms and conditions of their contract, which were binding on them. He also stated that he never received any money from the defendants for his house and reit erated that the parties entered into a loan contr act. • J7 Trial course PlaintifFs case 11) The matter came up for trial on 3 r d February 2022. The plaintiff called 3 witnesses and he testified as PWl. He began by adopting his witness statement, bundles of pleadings and documents. He went on to state that the suit house was built in 2005 and h ad a value of ZMWl,200,000. He denied selling his house to the 1st defendant (DW) , neither did he receive ZMW304,000 from the defendants as purchase price. He added that the defendants never produced proof of payment and asserted that there was no contract of sale. 12 ) PW 1 dismissed the contract of sale that was produced by the defendants in their bundle of documents averring t hat it could not be r elied on. It did not show t h e date of execution nor describe the property . Moreover, the mode and proof of p ayment, or the date when p ayment was made had not been disclosed. PW 1 averred that the absence of those elements rendered the defendant's contract null and void. • JB 13) It was PW l's further evidence that the conveyance of his house to the defendants was dubiously undertaken by them and without his consent. He neither met the advocates who facilitated the conveyance nor saw the State consent to assign and ZRA documents, or indeed any other documents that were purportedly used to transfer his property to the defendants. In concluding, PWl stated that the defendant's misled the Lands and Deeds Department into issuing them title. He prayed to court to grant him the reliefs that were placed before it. 14) In cross-examination, PWl testified that he did not sign the contract of sale at page 2 of the defendant's bundle of documents. When referred to paragraph 8 of his amended statement of claim that he signed the contract of sale with the defendants; PWl expressed ignorance of the averment. PWl denied that he sold his house at ZMW304 ,000 according to the contract of sale. He however, conceded that, the disputed contract was dated and described the property. 15) PW 1 further testified that, the copy of the Land 's Register in the defendant's bundle of documents showed that an J9 assignment had been registered on the property. He was not aware that the Registrar of Lands and Deeds only r egis tered assignments where proof of property transfer tax and State consent to assign had not been obtained. PWl insisted that h e borrowed ZMW149,000 from the defendants and since h e had not repaid them, the amount due with interes t was ZMW230 ,000. 16) The witness conceded that he did not produce the copy of the loan agreement in court. He reitera ted that his house was pled ged as security for the loan. Since then, PW 1 had advertised his house for sale and informed the defendants. His intention was to pay the defendants their money after the sale. PWl denied that he changed his mind about the sale after h e was offered more money by a third party. 1 7) When re-examined, PW 1 testified that DW helped him settle his loan with Mr. Kabali . In return, h e was supposed to return DW's money within 3 months. 18) The next witness Grace Kashala (PW2) , the plaintiff's wife adopted her witness statement and testified that her husband owned the suit house. They built it from 2005 after they J10 acquired the property in 2003 and its current value was estimated at ZMWl ,200,000.00. The witness a verred that DW took advantage of them by grabbing their house and PWl n ever received ZMW304 ,000 from the latter. Additionally, that PW 1 n ever signed any documents for the p ayment. Instead , DW dubiously changed the documents of the house into the defendants' name s without PW l 's approval. 19 ) During cross-examination PW2 testified tha t she n ever transacted with PWl and the d efendants. Her knowled ge of the dispute was ga thered from PW 1. 20) The witne ss was not re-examined. 2 1) The n ext witness Kedrick Chupa (PW3), begun by adopting his witness statement. He testified that PW 1 owned the suit house and built it for his family in a prime area of Chalala suburb. PWl told him that as a r esult of DW's fraudulent actions, h e lost his property sometime in Augus t 2 021 . He also told the witness that DW assisted him in settling Mr. Kambali's loan. According to PW 1 , the 1s t d efen d ant drafted a contra ct of sale for his house at ZMW304,000 but PWl never r eceived any payment. • J11 22) In cross-examination , PW3 testified that h e never transacte d with PWl and the defendants. However, PWl told him that h e sold his h ouse to some people. 23) The witness was not re-examined. 24) That marked the close of the plaintiff's case. Defendants' case 2 5) On b ehalf of the defendants , Mr. Maxwell Chinkuli (DW) the 1st defendant begun by adopting his witness statement and bundles of documents. He averred that PW 1 did not plead fraud with peculiarity or how it was perpe trated. Thus , his claim had no basis. He went on to testify that h e bought the suit prope rty from PWl through a contract of sale . Afterwards, PWl obtained State consent to assign, paid property transfer tax to ZRA and executed an assignment. He equally handed over his original certificate of title. Thereafter, the defendants lodged the documents with the Registrar of Lands and Deeds and were consequ ently issued a certificate of title. The court was r eferred to copies of the con tract of sale, Lands print out and certificate of title in th e defendant's bundle of documents. 26) It was DW's evidence that the defendants paid PWl J12 ZMW304,000 as full purchase pnce for his house. In fact, PWl admitted the transaction in his amended statement of claim wh en he averred that he signed the sale instruments which were meant for a loan. DW averred that the defendants were not aware of the loan as no agreement was executed by the parties. DW asserted that in any case, a loan agreement could not be contracted by way of sale and assignment of property. 27) The witness also testified that the plaintiff received another offer for his property according to paragraph 12 of his statement of claim. As such, his intention was to backtrack on his obligations in their signed contract. The defendants were not willing to cede the property because the conveyance had been completed. DW concluded with a prayer to court for an order of vacant possession of the property . 28) When cross-examined DW testified that he was aware of the requirements of transferring property, that is, obtaining State consent to assign and the lodgment of an assignment. In this case, the defendants lodged their assignment and tax J13 documents at the Ministry of Lands. He did not retain any copies so that title could be processed. DW conceded that he did not produce any documents in court showing the transfer process or that PWl had been paid money. According to the witness , PWl received the payment for the transaction and acknowledged it. He only kept a copy of the contract of sale as good business practice. 29) DW further testified that h e transacted with PW 1 on 17th July 2021 although he offered him his property on 25th January 2021. He then stated that, it was unfortunate that PW 1 had backtracked on the parties' contract when he previously accepted the terms. 30) In re-examination, DW reiterated that all his documents for the assignment and tax payments h ad been submitted to the Ministry of Lands. Although he never kept copies, the Land's Register copy produced 1n the defendant's bundle of documents showed at entry no.9, dated 11th June 2021 , that an assignment was lodged on the suit house. The value was stated as ZMW304,000. 31 ) That marked the close of the defendant's case. J14 Submissions 32) Learned counsel for the parties filed written submissions, for which I am indebted. I shaH not reproduce them but will make references as appropriate in my decision . Analysis and decision 33) I have considered the pleadings, evidence adduced, submissions and the authorities cited therein by learned counsel for the respective parties. The pertinent facts of this suit are fairly straight forward. It is undisputed that the p laintiff built the suit house on plot no. 13554, Chalala Lusaka from 2005. He later transacted with the defendants on the house in 2021. What is disputed between the parties is the nature of transaction that they engaged in. On one hand the defendants argued that the plaintiff sold them his house. Yet, the p laintiff forcefully contended that he never sold them his house but borrowed money from the defendants. Arising from the facts , the issues submitted by the parties and gleaned for the court's consideration, are the following; i) Whether the parties executed a contract for sale of the suit house? J15 ii) Whether the defendants fraudulently acquired the plaintiff's house? iii) Who between the parties is the rightful owner of the house? 34) On whether the parties executed a contract for sale of suit house, the plaintiff contended that he never sold them his house , n either was he paid ZMW304,000 as consideration. In a ddition , counsel for the p laintiff, Mr. Macwani exposed the court to the requirements of State consent to assign and how property tax to ZRA is settled on the basis of the La nds Act Ch apter 184 and Property Transfer Act Ch apter 340 . He argued that the plaintiff did not receive the purchase price a nd asserted that if there was any p ayment, it should h ave b een made through the p laintiff's advocates according to clause no . 3 of the Law Associa tion of Zambia (LAZ) Gen er a l Conditions that: a) Unless the special conditions otherwise expressly provides, a deposit of ten ( 10) per centum of the purchase price shall be paid on the exchange of contracts. b) Such deposit is to be paid to the vendor's advocates as stakeholder for the parties. 35) On the b asis of s ection 5 (1)(2 )(a ) and (3 ) of the Legal Practitioners' Practice Rules, Mr. Macwani submitted tha t J1 6 there were rules on how lawyers were expected to conduct themselves when representing both parties 1n a sale agreement. In this case, he argued that the rules were not followed and this action rendered the contract void . 36) In response, the defendants argued that they executed a valid contract of sale with the plaintiff. They never ent ered into a loan agreement, which in any case the plaintiff failed to produce in court. Learned counsel for the defendants , Mr. Mweemba averred that Mr. Macwani's submissions, on the process of conveyancing, payment of property transfer tax and the role of counsel in the conveyance amounted to evidence from the bar and professional miscon duct. 37) No witness had been called to testify on the alleged transactions , and therefore , counsel's evidence was unacceptable. In any event, th e plain tiff contradicted himself during his examination in chief when he testified that h e n ever signed any contract of sale and assignment. Yet, 1n cross examination he conceded according to paragraph 8 of his amended statement of claim that, "he s igned contracts of sale for his property" in favour of th e defen dants. J17 3 8) Counsel a sserted tha t the p laintiff never s ign ed documen ts for a loan and his contention wa s inconsequen tial because, no documents of that loan had been produced in court. Wh at wa s availed to court was the contract of sale t h at the d efendant s produced . Counsel also s tated that ther e was another contradiction, in th e p laintiff's eviden ce when h e claimed during his examination in chief, that h e did n ot r eceive any p a ymen t from the d efendants for the h ou se. However in his pleadings , h e conceded tha t h e received ZMW3 04, 000 a ccordin g to the con tract of sale. 39) I h a ve analys ed the contested pos itions and discern tha t , the plaintiff seek s through h is conten tion to se nd a reminder th a t consen sus and binding obligations in a cont ract can on ly arise when p erfected through signature . The defendant on the other hand h as a dopted the a pproach tha t contracts and bin d ing ob ligation s can arise in the a b sen ce of formalities. Th is render s the question whether the suit contract is binding on the p arties? 40) Be tha t a s it wer e, it is trite tha t some legal r ela tionships are only binding upon the parties and enforceable by a court when J18 they have been reduced into writing and executed. It is also factual on the other hand to state that not all contracts need such formalities. In all this maze , there is also common misconception that for a contract in writing to be valid, it must be completed and perfected. That is , in the sense of b eing signed and attested so as to create binding obligations. 41) In a classical sense, a contract is always deemed to have been duly formed and binding on the parties, where it is established that there was an offer, which was accepted and consideration paid. A contract does not need to be in any special form or in writing to be acceptable, unless the law expressly makes prov1s10n. 42) I understand that, one of the core functions of signature is to indicate that the parties who have applied their signatures to a document have read and understood it, as well as agreed to the terms of their agreement. While a signature is one of the factors that could prove and establish both offer and acceptance, it does not necessarily validate a contract. 4 3) In other words, once a signature is disputed , the burden is on the party alleging impropriety, whether it be fraud or other J19 illegality to prove it. The burden likewise shifts once in the converse and where the vitiating factor 1s proven, a contract can be deemed void. 44) Still on contract formation , the Supreme Court of the United Kingdom in the case of RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (UK Production) 1 , held that: "The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement." 43) While the cited case is only of persuasive value, it in my view, sets out sound and correct legal principles applicable in our jurisdiction on the law of contract. It infers that where parties reach an agreement on a ll the terms of contract they regard (or the law requires) as essential, a contract can be deemed to have been formed. The essential requirements are that there J20 must be an inten tion to create legal obligations and consideration. 44) The law will not always require commercially sound or sensible terms of contract as long as it can be demonstrated that parties have agreed on the terms and valid consideration exists, upon which th e parties can be held to their bargain. In consequence, it is n ot the respon s ib ility of courts to re-write contracts for the parties but to ensu re that their terms are enforced. 45) This proposition of th e law was succinctly stated in the case of Attorney General of Belize et al v Belize Telecom Ltd & Another2 at page 1993, citing Lord Person in Trollope Calls Ltd vs North West Metrop olitan Regional Hospital Board (1973) 1 WLR 601 at 609, when the English House of Lords held that: "The court does not make a contract for the partie s. The court will not even improve the contract whi ch the parties have made for themselves. If the express t e rms are perfectly clea r and from ambiguity, there is no choice to be made between different meanings. The clear terms must b e applied even if the court thinks some other terms could h ave been more suitable. " 46) My task t h erefore, is to determine from t h e evidence, whether the parties objectively expressed to each other the type of J21 • contract they intended to be bound by. In so doing, I will not attempt to impose the subjective thoughts of the parties, which never made it into the contract. 47) I must however, remark that Mr. Macwani's submissions contained a lot of evidential matters, which were never p leaded. Submissions are not evidence and the court cannot be expected to make any findings on them. As such, the factors that were valiantly canvassed by Mr. Macwani on the conduct of the conveyance, mode of payment to advocates under clau se no. 3 of the LAZ General Conditions, process of State consent to assign and property transfer tax canvassed are inconsequential to the plaintiff's case and will be disregarded. 48) Quite surprisingly, in his illegible submissions in reply dated 22 nd February 2022, Mr Macwani continued his approach of giving evidence from the bar on the process of conveyance at the Ministry of Lands and ZRA. This went beyond what is expected of submissions and the offending components will not be consider ed. • J22 49) From the parties' bundles of documents , the court has only been shown one version of a contract of sale, which the plaintiff argued that h e, had never signed. However, I find in his amended statement of claim at paragraph 8, a pleading that he signed contracts of sale for the suit property with the defendants. He stated t hat the purpose of the contracts was to secure a loan from the defendants and not to sale h is property. 50) On the other hand, the d efendants contend ed that the p laintiff sold them his h ouse and evidenced their transaction throu gh the s uit contract of sale. I further find that the only contract on record is the typed sale agreement for the suit house. It bears the names and signatures of the parties. As stated above, the law is established to the extent that parties are bound by the contracts that th ey make for themselves. 5 1) A court h as no p lace in re-writing contracts and I find that, it is more probable than not that the parties signed the suit contract, more so that no competing contract was produced b y the plaintiff to defeat that probability. Let me emphasize that, if at a ll there were any pre-contract negotia tions t h at the J23 parties had, and never made it into their contract, they would be inconsequential in defeating their contractual obligations. It is therefore, my considered opinion that the contract between the parties was successfully concluded. 52) The next issue is whether the defendants fraudulently acquired the plaintiff's house? The plaintiff argued that the defendants fraudulently transferred his property in their names using an invalid contract. Mr. Macwani referred the court to the Oxford Advanced Learner's Dictionary of Current English, 8th Edition Oxford Press, 2010, which defines fraud as: Dishonestly making or misleading) false representation with a view to gain or with intent to cause loss (untrue a 53) He then submitted that the defendants failed to give the plaintiff the loan document he signed. Further, that the plaintiff did not apply for State consent to assign, pay property transfer tax in compliance to section 4(1) of the Property Transfer Tax Act or other transfer documents. He also argued that, the contract of sale was not endorsed or dated for State consent to have been granted. • J24 54) As far as counsel was concerned, the plaintiff's non participation in the conveyance process entailed dishonesty as he was not given copies of the tax clearance certificate, a duly executed assignment, form DR53, tax receipt bearing the plaintiff's tax payer identification number (TPIN) , a lodgment schedule, payment receipts for registration and certificate of title. 55) Mr. Macwani further averred that since the documents could not be traced at the Lands and Deeds Registry; the assignment appearing on the Lands Register print out produced by the defendants did not justify their actions. Thus, in the absence of vital documents, the defendants dubiously obtained the plaintiff's property. 56) Counsel further fortified his submission by referring the court to the case of Gondwe v Ngwira3 where the Supreme court held that, the combined effect of fraud and the fact that the appellant was not a bonafide purchaser of value without notice , rendered his certificate of title invalid, under section 34(1) (c) of the Lands and Deeds Registry Act, Chapter 185. Also , that the burden of proving innocence for purchase of • J 25 value without notice was placed on the purchaser and in casu, this burden was not discharged by the defendants. 57) Mr. Macwani then called in aid the case of Smith Sawila v t h e Attorney General & Another4 where the Supreme court held that, while under section 33 of the Lands and Deeds Registry Act, a certificate of title is conclusive evidence of ownership, it could be challenged and cancelled for fraud or other impropriety. Counsel then argued that the factors of fraud and impropriety were present in this case and hence the defendants were not innocent purchasers for value. 58) In countering the allegation, Mr. Mweemba cited the case of Sithole v State Lotteries Board5 , where it was held that, when allegations of fraud arise in a civil matter, the same must be proved with evidence that meets the standard of proof in criminal matters, that is, "beyond all reasonable doubt", rather than that required in civil cases, which is a mere balance of probabilities. He then argued that the evidence adduced by the plaintiff fell far short of the standard required to prove fraud. Out of the plaintiff's three witnesses, only his, was worth the court's consideration as the other witnesses J26 never participated in his transactions with the d efendants over the suit house. 59) As far as counsel was concerned, Mr. Macwani's submissions were not evidence and had no force whatsoever. Having examined the contested positions, the plaintiff seems to bring forth the vitiating factor of fraud , which has the a bility of defeating contractual liability or obligations. It was raised when he testified that, the defendants dishonestly acquired his house through an invalid contract of sale. Further, that he did not sign the contract of sale. Additionally, that there was no proof that the defendants paid him the purchase price and the transfer ownership documents were not genuine. 60) Undoubtedly, the vitiating factor of fraud can constitute an appropriate defence to specific performance. However , to be successfully pursued, it must be pleaded with specific distinctiveness. Where it has not, a party must not be allowed to lead any evidence or raise the factor after closure of trial. This is of course bearing in mind that the essence of pleadings is to make a party aware of the case he or she faces in order to prepare an answer or defence. • J27 61) According to the case of Derry v Peek6 fraud is proven when it is shown that a false represen tation h as been made, (1) knowingly, or (2 ) without belief in its truth, or (3) reckle ssly, or carelessly, whether it be true or false. Fraud is an act of dishonesty, which is set or intended to mislead and which a party may act upon. 62) Turning back to the case before m e, I have no hesitation in finding that th e plaintiff never pleaded fraud with any dis tinctiven ess. The plaintiff's evidence was inconsistent and unreliable on the allegation because during his evidence in chief, he d enied that h e signed the suit contract of sale . However , in his pleadings, he averr ed at paragraph 8 of his amended statement of claim that he signed contracts of sale for his property with the defendants . Apart from that, h e did n ot disclose any material evid ence during trial to prove his allegation of fraud . Instead , counsel through his submissions inappropriately attempted to b ear the plaintiff's burden. 63) His witnesses too did not lead any evidence on fra ud and quite interestingly, PW3 testified that th e plaintiff told him that he sold his house to unknown p eople. Accordingly, I find that • ,I J28 what is consistent 1n the evidence before court, is that the plaintiff sold his property to the defendants. Hence, his feeble allegation that the defendants lent him money, upon which, he pledged his house as collateral is ins ufficient to vitiate the parties ' contract. 6 4) It is also m y finding that, the plaintiff's allegation that h e never signed the suit contract was contrived. As far as the court sees it , the plaintiff was burdened to prove that the attacked signature was not his. In fact, he did not r eveal his "r eal signature" in court upon which, it could assess the allegation. This leads me to conclude that there was no act of fraud or dishone sty fetched on the defendants by the p laintiff, upon which, the court would be expected to hold them liable. Accordingly, the plaintiff's claim of the vitiating factor of fraud against the defe nda nts is u nmeritorious. 65) The final issue is who between the parties is t h e rightful owner of the house? At the onset, the court was faced with three distinct possibilities, firstly that there was no contract between the parties or secondly, that there was a contract but on other terms or thirdly, that the suit contract was • J29 fraudulently obtained. Considerin g the totality of the eviden ce, I affirm tha t ther e was indeed a contrac t of sale for the suit house between the parties. It was b a s ed on the t erms that they concluded therein and sign ed. In the r esult, I further fin d tha t the suit house belon gs to the d efendants. 6 6) Th e fact that the p laintiff alleged tha t the partie s h a d different intentions when they executed their contract of s ale is imma terial. I am fortified by t h e case of Kalusha Bwalya v Chadore Properties and Ian Chamunora Nyalugwe Haruperi7 , whe r e t h e appellant alleged tha t h e executed a c ontract of sale and assignment in favour of the r espondents a s security for th e sum of USD 26 ,250 tha t h e received from them. H e argued that the intention of the p arties was n ot to transfer or sell his house but simply for them to h old it as security . The Suprem e Cou rt h eld that: "The trial Judge found that fraud or misrepres entation had not been proved by the Appellant, and the court on appeal had no reason to fault the finding. The intention of the parties w as discerned from the documents signed by them freely and voluntarily. The parties chose to embody the ir agreement in two documents, namely, the Contract of Sale and the Deed of Assignment. They were bound by those docume nts . Extrinsic evidence was not generally admissible to vary the t e rms of the written contract. The documents were categori cal a nd clear and did not call for extri n s ic evidence to make sen s e o f the m. The general rule is that a person is bound by the terms of any instrume nt which he signed even though h e did not read it or • J30 understand its contents. The appellant acknowledged receipt of the sum of US$26,250 for the sale of the property. The Appellant's attitude was unmitigatingly casual and nonchalant and he had only himself to blame for a bad business decision." 67) It remains at law, that where a party has freely and voluntarily entered into a contract, h e is bound by it. The court will not aid the interpretation of any written document by calling extrinsic evidence . The intention of the parties is no more than what is expr essed in their contract. Ultimately, I hold that the d efendants are the owners of the suit house and hereby wholly dismiss the plaintiff's case against them. Defendant's counterclaim 68) It is not lost to the court that the defendants counterclaimed an order of vacant possession of the suit hous e. Having determined that the plaintiffs case is unmeritorious and that the defendants are the owners of the suit house, it inevitably follows as a holding that th ey are entitled to an order of vacant possession. 69) I however, find that their counterclaim for mesne profits h as not been proved in that the defendants did n ot lay any ,.. J31 evidence demonstrating how the claim was arrived at. This was not the case, and the court shall not grant the relief. Final orders 70) In concluding the following orders are made: i) The plaintiff's case is unmeritorious and dismissed in its entirety. ii) There shall issue an order of vacant possession to the defendants within 30 days of the date of this judgment. iii) The defendant's claim for mesne profits is unmeritorious and dismissed forthwith. iv) Costs are for the defendants to be taxed in default of agreement. 71) Leave to appeal is granted. Dated this 30t h day of March 2022. ~ M. Mapani-Kawimbe HIGH COURT JUDGE