Kakoma Farms Limited v Global Agricultural Development Limited And Anor (Appeal No. 407 of 2023) [2025] ZMCA 38 (13 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 407 of 2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETW EEN: KAKOMA FARMS LIMITED APPELLANT AND GLOBAL AGRICULTURAL DEVELOPMENT LIMITED T RESPONDENT MWENA REAL ESTATES LIMITED 2 ND RESPONDENT CORAM : SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 13th January & 13th February 2025 For t he Appellant: Ms. K. Mwila For the 1st Respondent: Mr. B. Mweemba Messrs . Muleza Mwii m bu & Company Messrs. Keith M weemba Advocates For the 2nd Respondent: Mr. B. Phiri Messrs. Mwelwa, Phiri & Partners with Mr. C. Zulu & M rs. R. Kamukwamba Messrs. Linus & Partners JUDGMENT Patel, JA, delivered th e Judgment of the Court J 1 Cases referred to: 1. House of Jasmine Limited v Dukon Paints Limited (1998) Limited Appeal 2. 3. 4. 5. No.037 of 2021 Mwenya and Dandee v Kapinga ( 1998) SJ 12 (SC) The Rating Valuation Consortium and D. W. Zyambo & Associates (Suing as a firm) v The Lusaka City Council and Zambia National Tender Board (2004) Z. R. 109 Hyde v Wrench (1840) 3 BEAR DP Services Limited v Municipalities of Kabwe - SCZ Judgment No.23 of 6. Nkhata and others v Attorney General [1966] ZR 124 7. 8. 9. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 Collet v Van Zyl Brothers Limited (1966) 65 CA Jonas Amon Banda v Dickson Michiya Tembo [2008] 1 Z. R. 204 (SC) 10. Tito and others v Waddel and others No.2 [1977] Ch. D.106 11. Gideon Mundanda v Timothy Mulwani and the Agricultu r al Finance Co. Limited and SSS Mwiinga (1967) ZR 29 SC 12. Susan Mwale Harman v Bank of Zambia SCZ Appeal No.191 of 2015 13. Ndongo v Moses Mulyango & Another (SCZ Judgment No.4 of 2011) 14. Amchile Import & Export Lim ited and others v Ian Chimanga (T / A Tawana Business Ventures) and Another - SCZ Appeal No.43A/2011 15. Holmes v Buildwell Construction Company Limited (1973) ZR 97 16. Way v Latilla {1973) 3 All ER 759 17. Rating Valuation Consortium and D W Zyambo & Associates (suing as a Firm) v The Lusaka City Council and the Zambia National Tender Board - SCZ Judgment No.13 of 2004 J2 18. Evo lution Group Limited v Pan African Building Society - CAZ Appeal 2/ 2019 19. Base Chemicals Zamb ia Limited and Mazzonites Limited v Zambia Ai r Force and Attorney General - SCZ Judgment No.9 of 2011 20. Zambia Railways Limited v Paul ine S. Mundia & Another (2008) ZR 287 21. Wes ley Mulungushi v Chomba (SCZ Judgement 11 of 2004) [2004] ZMSC 114 (30 April 2004) 22. B. P. Zambia PLC v Zambia Competition Commission & others - SCZ Judgment No.22 of 2011 23. YB and F Transport Limited v Supersonic Motors Limited SCZ Judgment No.3 of 2000 24. Doyle B Kapambwe v Machona Kapambwe, Henry Machina & Rose M Kamungu- CAZ Appeal No. 143 of 2017 Rules & Legislation referred to: 1. 2. 3. 4. The Court of Appeal Rules, 5.1 65 of 2016 The High Court Rules, Chapter 27 of the laws of Zambia Th e Court of Ap peal Act No .7 of 2016 Statute of Frauds 1677 Other works referred to: 1. Halsbu ry's Laws of En gland, 4t h Edition, Vol. 9 (1), (Lo ndon Butterworth & Co (Publish ers) Ltd) 1998. 2. Joseph Ch itty, Chitty on Contracts, Vol.2, Specific Contracts. (Sweet & Maxwell). 3. Joseph Chitty, Chitty on Contracts, 29t h Edition, Vol. 1, {Sweet & Maxwell). J3 4. Sangwani Patrick Ngambi & Chanda Chungu, Contract Law in Zambia, Second Edition, (Juta & Company (Pty) Ltd). 5. Halsbury' s Laws of England, 4t h Edition, Vol. 1 (2), 1990 Reissue (London Butterworth & Co (Publishers) Ltd). 6. Mumba Malila, Commercial Law in Zambia, UNZA Press for School of Law, University of London, 2006. J4 INDEX 1. 2. 3. 4. 5. 6. 7. 8. 9. Introduction Background Decision of the Lower Court The Appeal The pt Respondent's Cross Appeal The Appellant's Heads of Arguments The 1st Respondent's Heads of Arguments in Opposing the Appeal Arguments in Support of the Cross Appeal The 2nd Respondent's heads of arguments in Opposing the Appeal 10. The Appellant's Heads of Argument in Reply to the 1st and 2nd Respondent's Heads of Argument 11. The Hearing 12. Analysis & Decision of the Court 13. Conclusion Page J6 J6 J9 JlS J16 J17 J19 J21 J22 J24 J24 J25 J41 J5 1.0 INTRODUCTION 1.1 This is an appea l against the Judgment of Hon. Musona J, delivered on 9th October 2023 in an action filed by the p t Respondent on 27 th January 2020, the Plaintiff in the lower Court, in which Judgment was entered awarding various reliefs to the Parties as embodied in the said Judgment, now t he subject of th is appeal. 1.2 The Appellant filed its Heads of Argument on 2l5t Decemb er 2023 and purported to fi le heads of argument in reply on 13th December 2024. We shall speak to th is later. 1.3 The 1st Resp ondent fil ed its Notice of Cross Appeal on 11th January 2024 and its combined heads of argumen t in respo nse to the appeal and in support of its cross ap peal on 6th February 2024. 1.4 The 2nd Respo ndent filed its heads of argument on 2nd August 2024 (filed pursuant to a consent order). 1.5 Reference to page numbers, shall refer to the Record of Ap pe al, unless otherwise stated. 2.0 BACKGROUND 2.1 For clarity, the Pa rties will be referred to as they appear in th is Court or by their names where appropriate, the Parties having f iled appeals and cross appeals. Th e 1st Respond ent, Globa l Agricultural Developmen t Limited, GAOL, (Pl aintiff in the Court below) commenced these proceedings against the Appellant Kakoma Farms, (1st Defend ant below ) and 2nd Respondent Mwena Estates (2nd Defendant below ), by way of J6 Writ of Summons and Statement of Claim filed claiming the following reliefs: i. Specific Performance of the agreement to subdivide and sale Farm No.87a/G situate in Chongwe District to purchasers identified and contracted by the Plaintiff; ii. Damages in lieu of or in addition to specific performance; iii. In the alternative, damages pursuant to the agreement on quantum meruit basis; iv. Interest; v. Any other relief the Court may deem fit; and vi. Costs 2.2 GAOL pleaded that by an agreement dated 26th June 2018, Kakoma Farms appointed Mwena Estates as its Agent in the sale/transfer of the property known as the Remaining Extent of Farm No.87a/G Chongwe ("the property" ) at the non-negotiable price of K90,000,000 (Kwacha Ninety Million). 2.3 According to the Statement of Claim, Mwena Estates, as agent for Kakoma Farms, contracted with GAOL for the purchase of the property, by way of a Memorandum of Understanding ("MoU") signed on 3rd May 2019. The purchase price was agreed at Kll0, 824,350.00. It was a term of the contract, that the property, having been on the market for a long time and the purchase price being significant, the same could be settled in installments. 2.4 It was a further term of the contract that GAOL would create a housing project where planning permission would be sought from Chongwe Municipal Council for conversion of the use of land from agriculture to J7 mixed use and t ha t the property be subdivided and sold off into unit s and yie lds t herefrom be used t o liquidate the considerati on referred to in paragraph 2.3 above. 2.5 Accord ing to the Statement of Claim, GADL informed Mwena Estates that it had fou nd buyers who we re int erest ed in smal l porti ons of the pro perty instead of t he w ho le propert y. 2.6 GADL pleaded that following va rious discussions, Kakoma Farms and Mwena Estates agreed to sell the property in sma ll portions by way of su bd ivisions at the estimated va lue of K218, 000,000.00 {Kwacha two hundred and ei ghteen m ill ion). 2.7 Acting on t he above, GADL organized cl ients from institutions such as ZESCO Limited, Zambia Army, Zambia Air Force {ZAF), Zambia National Service {ZN S) and Zambia Police who were to make payments through their payroll deductions. Pursu ant to the agreement, GADL, on 3rd May 2019, paid it s fi rst instal lment in t he sum of K285,000.00 whic h was rem itted to Mwena Estates, t o use to attend to all forma l requirements precedent t o sub dividing t he property. 2.8 In its bid to pay off the consideration and develop the housing project, GADL comme nced negotiations with Zam bia Nationa l Bui lding Society {ZNBS) w ith a view of securing a loan facility w ho also agreed to fi nance t he pro posed housing project. 2.9 Accordi ng to GADL, Kakoma Farms terminated the agency agreement wit h Mwena Estates and proceeded to take over negotiations for a loan facility wit h ZN BS leaving GADL uncertain of its position, Kakoma Farms being t he legal owner of th e property. JS 2.10 Accord ing t o GADL, the part icula rs of t he breach were that Kakoma Farms proceeded t o rescind the contract and informed it that it would not be bound by the actions of its former agent, Mwena Estates. In further breach, Kakoma Farms stated that it would meet directly w ith the people that GADL had sol d the subd ivisions to. GADL pleaded that from the aforesaid conduct and actions of Kakoma Farms, it had suffered loss and damage. 2.11 On 12th February 2020, Kakoma Farms filed its defence and disputed the cla ims of GADL. 2.12 On 19th March 2020, Mwena Estates filed its def ence and cou nter-cl aim against Kakoma Farms. It pleaded that the actions of Kakoma Farms had caused it to suffer loss and damage. In its counterclaim, it sought the following: ,. Monies owed to it under the Principal Agent agreement amounting to ZMW20, 824,350. ii. Interest on the amounts found due. iii. Costs. iv. Any relief the court may deem fit. 2.13 On 9th October 2023, t he High Court delivered Judgment in favour of GADL and Mwena Estates and awarded costs to GADL. 3.0 DECISION OF THE LOWER COURT 3.1 The lower Court's decision is seen at pages 18 to 71 of the Record of Appea l. The learned Judge reviewed the case before him an d considered th e pleadi ngs and the evidence on record . J9 3.2 The learned Judge gathered the issues for determ ination as fol lows: ,. Whether the agreement (memorandum of understanding "MoU") between the Plaintiff and the 2nd Defendant existed and is enforceable at law; ii. Whether or not there is an agreement for sale of the property between the Plaintiff and the 2nd Defendant; iii. Whether the 1st Defendant by its actions authorized and/or acquiesced the change of use of the property from agricultural use to mixed use for purposes of subdividing it for sale in smaller plots. 3.3 In addressing the first issue, th e learned Judge in ana lyzing the enforceability of the MoU, refe rred to the case of House of Jasmine Limited v Dukon Paints Limited (1998) Limited 1 w here the Court re lied on the case of Mwenya and Dandee v Kapinga 2 whe re the Court held as follows: "A note or memorandum to satisfy Section 4 of the Statute of Fraud, the agreement itself need not be in writing. A note or memorandum of it is sufficient, provided it contains all the material terms of the contract, such as names, or adequate identification of the parties, the description of the subject matter and the nature of the consideration." 3.4 The learned Judge noted page 9 of the 1st Respondent' s bundle of document s which revealed a document entitled "memorandum of understanding between two agents/firms/companies/associations". He noted that t his MoU contains the names of the parties i.e. the 1st Respondent and the 2nd Res pondent, that commission was 10% of the J10 total value of the sales as well as a description of the property. He observed that the MoU did not provide for the nature of the consideration or that the 2nd Respondent was selling t he property on behalf of the Appellant to the 1st Respondent. 3.5 The learne d Judge noted that the MoU is an agreement between two agents of which the 2nd Respondent is the principal agent. On th is issue, the learned Judge found that the MoU was not an agreement for the sale of the property but an agreement for the 1st Respondent and 2nd Respondent to work as agents in relation to the property. 3.6 Moving to the second issue, the learned Judge referred to the cases of The Rating Valuation Consortium and D. W. Zyambo & Associates (Suing as a firm) v The Lusaka City Council and Zambia National Tender Board 3 and Hyde v Wrench 4 • It was the learned Judge's understanding that t here must be consensus regarding all material terms of the agreement and an in tention to be legally bound by those terms for a valid agreement to come into effect. 3.7 The learned Judge ultimately found that there was a valid contract of sal e of the property between the i5t Respondent, the 2nd Respondent and QY extension, the Appellant. He explained that this was because all the elements of a valid contract exist; an offer was made which was accepted, there was consideration, and the parties intended to be legally bound. 3.8 Moving to the third issue, the learned Judge acknowledged that the agency agreement did not provide for change of use or subdivision of the property. He explained that it merely provided that the 2nd Re spondent had authority to sell th e property. J 11 3.9 The learned Judge analyzed the next aspect of the issue being, whether the Appellant acquiesced, through its conduct, the change of the use of the property for purposes of subdividing it for sale in smaller plots. He explained that this was a question which could be answered by looking at the way parties had conducted themselves and examining what they had said and done. 3.10 The learned Judge referred to pages 6-8 of the p t Respondent's Bundle of Documents which exhibited a letter of appointment of agents on the sale of property/agreements. He noted that the letter shows that the Appellant gave the 2nd Respondent authority to sell the property for consideration not less than K90, 000,000. 3.11 The learned Judge raised the application of the doctrine of estoppel. He explained that the basic principle of the doctrine of estoppel is that a person who makes, by words or conduct, a representation to another intending that other to act on it, and the other does so to his detriment, will not be allowed subsequently to take a position inconsistent with the representation. 3.12 The learned Judge observed that the offer letter from the 2nd Respondent to the 1st Respondent stated that the Respondents had a meeting and the Appellant gave the 2nd Respondent authority to sell the property in smaller parcels. It is on that basis that the property was offered to the p t Respondent, which accepted the offer. The 1st Respondent then found subsequent buyers of the property and created a Housing Project on the property. J12 3.13 The learned Judge observed that the letter showed that t he Appellant was informed of change of use and subd ivision. He explained that this means that the Appellant was more concerned about "who" bought the property and receiving its K90,000,000 rather than the idea of the project. 3.14 The learned Judge was of the view that the documents on record demonstrate that although the Appellant claims that it did not authorize the change of use and subdivision of the property, he found that it was comfortable proceeding with the Housing project despite terminating the agency agreement, w hich showed that t he change of use and subdivid ing of the property is not the real reason for the termination. 3.15 Regarding the issue of specific performance, the learned Judge held t he view that the i5t Respondent did not show that damages will not adequately remedy the damage suffered or that th e grant of damages wil l not achieve perfect justice. Further reasoning can be seen from J48 to 50. He found that the 1st Respondent did not meet the conditions precedent to warrant the grant of an order for specific performance. 3.16 The learned Judge placed re liance on Halsbury's Laws of England, 4th Edition Volume 9 (1) in paragraph 11551 to arrive at payment on a quantum meruit basis. 3.17 The learned Judge placed reliance on the case of DP Services Limited v Municipality of Kabwe5 , to arrive at his determination that where a person is engaged in a professional capacity, barring any contractual provision to the contrary, he is entitled to be remunerated on a quantum meruit basis for the work actually carried out. J13 ' 3.18 The learned Judge found that the Appellant benefited from the actions of the p t Respondent and the 2nd Respondent, in that the va lue of the property increased as a result of the change of use and subdivid ing. Also, he noted that evidence shows that although the Appellant terminated the agency agreement, it did not term inate the agreements with Zambia Army, Zambia Air Force, Zambia Police, Zambia National Service and ZESCO. Consequently, t he learned Judge found that the p t Respondent is entitled to payment on a quantum meruit basis plus interest for work done. 3.19 Regarding the matter of damages, the learned Judge held th at a party cannot claim entitlement to damages with out presenting sufficient proof. In this case, the learned Judge determined that the p t Respondent was not entitled to damages, as no evidence was provided to substantiate the basis for such an award. 3.20 The learned Judge turned to address the 2nd Respondent's counter-claim and found merit in its claims. He made a finding that although t he Appe llant did not grant the 2nd Respondent authority to change t he use or subdivide the property, the Appe llant acqu iesced t he housing project and equally benefitted from the actions of the 2nd Respondent. Consequently, he ordered the immediate payment of the sum of K20,824,350 plus interest to the 2nd Respondent as remune ration for work done under the agency agreement. J14 4.0 THE APPEAL 4.1 Being dissatisfied with the Judgment of the lower Court, the Appellant filed a Notice of Appeal and Memorandum of Appeal on 26th October 2023, advancing seven (7) grounds of appeal: 1. The Trial Court misdirected himself when he held that there was a contract of sale of Farm No.87a/G situate in Chongwe between the 2nd Respondent which extended to the Appellant and the 1st Respondent when in fact not. 2. The Trial Court erred in law and fact when he held that when the Appellant contacted the intended purchasers of the farm it acquiesced the actions of the 2nd Respondent to change the use of land and subdivide it. 3. The Trial Court erred in law and fact when he held that the 2nd Respondent's actions of changing the use of the land and subdividing it without the Appellant's authority was not the reason why the Appellant terminated the agency agreement thereby holding that the agency agreement was still valid. 4. The Trial Court erred in law and fact when he found that the Appellant was willing to proceed with the housing project began by the Respondents without evidence from the intended purchasers to substantiate the allegations. 5. The Trial Court misdirected himself when he held that the 1st Respondent is entitled to a quantum meruit payment when the J1 5 Appellant had not contracted him to do any of the purported works he did. 6. The Trial Court erred in law and fact when he ordered that the Appellant pays the 2nd Respondent a sum of K20,824,350.00 and all claims under the counterclaim as remuneration for the sale of the farm when there was no proof of the sale of the farm by the 2nd Respondent. 7. The Trial Court fell in grave error when he awarded costs to the 1st Respondent when the 1st Respondent's action was unsuccessful on almost all the claims. 5.0 THE 1sr RESPONDENT'S CROSS APPEAL 5.1 The p t Respondent on 11th January 2024, filed a Notice of Cross Appea l pursuant to Order 10 Rule 11 (1) (a) of the Court of Appeal Rules 1 advancing the following grounds: ,. The lower Court erred in law and fact when it failed to grant the order for specific performance to the Plaintiff despite the evidence on record showing there was a valid and actionable agreement of sale; ii. The lower Court erred in law and in fact when it failed to grant an order for damages to the Plaintiff as an alternative to specific performance despite evidence of the valid agreement of sale on the record and evidence of loss incurred by the Plaintiff J1 6 6.0 THE APPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPEAL 6.1 We have duly considered and appreciated the Appellant's Heads of Argument filed on 21st December 2023. 6.2 In relation to ground one, it is the Appellant's argument that the wording of the Memorandum of Understanding between the pt and 2nd Respondent clearly shows that the p t Respondent was being appointed an agent whic h authority to de legate was not provided for in the main agency agreement between the Appellant and the 2nd Respondent. It is the Appellant's argument, that even if it were assumed that there was a va lid sub-agency agreement between the Respondents, the sale is a nullity and void as there is a fiduciary duty an agent owes to the Principal to avoid conflict of interest in that an agent who has been instructed to sell a property on beha lf of a principal cannot end up buying the same property himself. 6.3 In relation to ground two, the Appe llant submitted that the lower Court's finding that the Appellant acquiesced to the decision by the 2nd Respondent to subdivide and change the use of land w ithout the Appellant's authority, was arrived at without evidence of the intention by the Appellant to continue with the sale through a testimony from any of the intended purchaser indicating that they were willing to proceed with the sale. 6.4 The Appellant argued that it had, from the beginning, expressed its displeasure in the acts of the 2nd Respondent going outside of the mandate of the agreement immed iately after the information of the J17 subdivisions and change of use of land was brought to the attention of the Appellant. 6.5 In relation to ground three, the Appellant submitted that there was no provision in the agency agreement that allowed the 2nd Responden t to subdivide and change the use of land therefore. The Appellant's argum ent being that there was misapprehension of evidence before the lower Court. 6.6 In relation to ground four, it was the Appellant' s submission that there was no evidence of the continuation of the sa le between the Appe llant and the intended purchasers, for the Court to arrive at such a decision other than a letter to the intended purchasers informing them of the termination of the agency agreement. 6. 7 The gist of the Appellant's argument in ground five was that the trial Court fell into grave error when it created an agency agreement between the Appellant and the p t Respondent that did not exist. The Appellant, in challenging the award on the quantum meruit basis, submitted that the Appellant did not enter into any agreement with the 1st Respondent to find buyers for the property. 6.8 In relation to ground six, the Appellant subm itted that it was a misdirection on the part of the Court to have held that the 2nd Respondent was entitled to his agency fees when he had not presented any buyers to the Appellant who paid the K90, 000,000 as agreed by the parties to the agency agreement. J1 8 6.9 Lastly, in re lation t o ground seven, the Appella nt referred to Order 40 Rule 6 of the High Court Rules2 and argued that costs are mea nt to compensate an innocent pa rty for any inconvenience suffered as a result of the defaulting party's actions, w hile penalizing the other. Th e Appellant submit ted t hat the trial Court did not exercise its d iscretion judiciously as required under t he law in awarding the 1st Respondent costs wh en the 1st Respondent only su cceeded on the th ird cla im in its Statement of Claim. 7.0 THE 15r RESPONDENT'S HEADS OF ARGUMENT IN OPPOSING THE APPEAL AND ARGUMENTS IN SUPPORT OF THE CROSS APPEAL 7.1 The 1st Respondent filed its comb ined Hea ds of Argument in response to the main appeal and Arguments in Support of its Cross Appeal fi led on 6th Feb rua ry 2024. 7.2 In re lation to ground one, the 1st Respondent argued that the lower Court was on firm ground w hen it found that t here was a vali d contract of sale of the property between th e p t Respondent, the 2nd Respond ent an d by extension, the Appellant. It is the pt Respondent's argument that, in re lation t o the MoU, the let ter of offer at page 135 dated 3rd M ay 2019, issued by the 2nd Respondent to the 1st Respondent, su perseded all pri or agreements between the 1st Respondent an d 2nd Respondent includ ing the MoU betwee n the p t Respondent and the 2nd Respondent an d that the relat ionship between the 1st Respond ent and the Appellant and 2nd Respondent w as that of purch aser and vendor. 7.3 In relation to ground two, it was the 1st Respondent's argument that the lower Court was on firm ground w hen it fou nd that the Appellant having contacted t he intend ed purchasers of the farm , it acq uiesced to the J19 actions of the 2nd Respondent. The Appellant referred to the famous case of Nkhata and others v Attorney General6 and Wilson Masauso Zulu 7 and subm itted that ground two of the Appeal did not meet the req uirements to reverse t he findings of facts of the lower Court. 7.4 In re lation to ground three, it was the p t Respondent's submission that the 2nd Respondent had apparent authority to be entrusted with all things relating to the sale of the property. It is the argument that the 2nd Respondent indicated to t he p t Re spondent that he had obtained authority to su bdivide the property and there was no reason why the 1st Respondent should have questioned the 2nd Respondent' s authority. 7.5 In relation to ground four, the p t Respondent adopted the submissions of the ir argument on ground three above. 7.6 In relation to ground five, it was the 1st Respondent's argument that a deposit of K285,000 was paid, t hereby making t he agreement binding and effective. It was also the argument that the property be subdivided and authority obtained for t he same, leading to a variation of the initial terms as indicated in the offer letter exhibited at page 135 to 136 of the record. 7. 7 The 1st Respondent has implored this Court to exercise its discretion judiciously under Section 24 {l)(a) of the Court of Appea l Act 3 and amend the conclusion of the lower Court from an award of paymen t on a quantum meruit bas is to "specific performance of the agreement to sell Farm No 87a/G, situate in Chongwe ... or alternatively damages for breach of contract." J20 7.8 In relation to ground six, the pt Respondent adopted the arguments in ground one of its arguments and urged th is Court to dismiss ground six accordingly. 7.9 In relation to ground seven, the 1st Respondent referred to the case of Collet v Van Zyl Brothers Limited 8 and submitted that the lower Court was on firm ground when it awarded costs to the p t Respondent because small or partial successes may carry an appropriate award of costs. ARGUMENTS IN SUPPORT OF CROSS APPEAL 7.10 In arguing t he cross appea l, the p t Respondent has drawn our attention to a plethora of cases which guide on the principles in which an appellate Court should consider when it has been asked to overturn or interfere with t he findings of fact made by a trial Judge. This is duly noted from paragraphs 1 to 20 of the ir arguments on record. 7.11 In arguing ground one of the cross appeal, it was submitted that the 1st Respondent demonstrated part performance in re liance on the wr itte n agreement and the lower Court ought to have enforced the contract in favour of the p t Respondent. Our attention was drawn to the case of Jonas Amon Banda v Dickson Michiya Tembo 9 wh ich stated as follows: " ... where a party demonstrates part performance ... consistent with the contract alleged, the court will enforce the contract. " 7.12 The 1st Respondent referred to the case of Mwenya and Randee2 in which t he Supreme Court referred to the case of Tito and Others v Waddel and Others 10 at page 322 which states that : J21 "The question is not simply whether damages are an 'adequate remedy', but whether specific performance as it were, will do more perfect and complete justice than an award of damages. This is particularly so in all cases dealing with a unique subject matter such as land. 11 7.13 It is the 1st Respondent's submission that the lower Court acted outside the ambit of equity in declining the claim of specific performance and that in these circumstances, specific performance was the only remedy that would do perfect justice and complete justice t han an award of payment on quantum meruit basis upon the Court's finding that there was a valid contract of sale among the parties. 7.14 In re lation to ground two, the p t Respondent submitted that this is an appropriate case for which specific performance or an award of damages for breach of contract can be granted and referred to a plethora of cases such as Gideon Mundanda v Timothy Mulwani and the Agricultural Finance Co. Ltd and SSS Mwiinga11 . 8.0 THE 2N° RESPONDENT'S HEADS OF ARGUMENT IN OPPOSING THE APPEAL 8.1 We have duly considered and appreciated the 2nd Respondent' s Heads of Argument filed on 2nd August 2024. 8.2 The 2nd Respondent ende avored to argue grounds 1, 2 and 6 of the appeal together. The gi st of their argument is that it is clea r from the record that an agency relationship was created between the Appellant and the 2nd Respondent in which the Appell ant gave legal authority to the 2nd )22 Respondent to contract on behalf of the Appe llant the sale of the subject property. 8.3 It was submitted that in fulfilment of the contract of sale, the i5t Respondent paid a deposit of ZMW285,000 towards financing of the sa id contract. It was submitted t hat the agreement between the 1st and 2nd Respondents constituted a contract of sale of the said property. 8.4 It is the 2nd Respondent's argument that its act s were treated as those of the Appellant, and that the Appellant th erefore, stepped into the shoes of the 2nd Respondent, and became a party to the contract thereby becoming bound by the contract of sa le between the 2nd Respondent and the 1st Respondent. 8.5 The 2nd Respondent su bmitted in view of the above that t his Court uphold t he decision of t he lower Court in which it ordered that the Appella nt pay the 2nd Respondent the sum of ZMW20,834,350.00 and the claims under the 2nd Respondent counterclaim as remuneration for the sale of the propert y. Alternatively, it is t he 2nd Respondents submission that this Court award them re muneration for the sale on a quantum meruit basis. 8.6 Th e 2nd Respondent has also beseeched this Court to fin d that the ist and 2nd Respondents are both agents of the Appellant and found buyers and ought to be paid the excess of the ZMW 90, 000, 000 asking price of the Appe llant to be paid between them by virt ue of the agency contract betwe en the Appel lant and 2nd Respondent. It was argued that this wou ld mean that the 1st and 2nd Respondents would be entitled to the difference between ZMW 218,166,000.00 and ZMW 90, 000,000.00 to be paid out to them on a quantum meruit basis. It is their argument that the re was no J23 justifia bl e reaso n given by the Appellant for the termination of the agency agreement. 8.7 In relation to ground three, the 2nd Respondent reiterated its arguments in respo nse to grounds 1, 2 and 6 of the appea l. 8.8 The 2nd Respo ndent reiterated it s arguments in ground four and urged us to dismiss ground four for lack of merit. The 2nd Respondent did not take issue with ground five of the appeal an d made no submission. 8.9 In relation to ground seven, it is the 2nd Respondents argument that having succeeded in its counter/claim, it is also entitled to recover its costs from the Appellant, who was the losing part y in the lower Court. 9.0 THE APPELLANT'S HEADS OF ARGUMENT IN REPLY TO THE 15r AND 2No RESPONDENT'S HEADS OF ARGUMENT 9.1 As noted at paragraph 1.3 above, these were filed on 13t h December 2024. At the hearing, Counsel Mwinga conceded that these were fi led w ithout leave and or Order of the Court. It goes wit hout saying that we have not considered t he Appellant's heads of argument in reply. 10.0 THE HEARING 10.1 At the hearing, Counsel made lengthy submissions in support of their respect ive positions. The thrust of the Appel lant's argument was that the Judge of t he lower Court erred in assessing the documents and eva luating the evidence before it and prayed for its appeal to succeed. J24 10.2 Counsel Mweemba urged the Court to consider that the document on page 135/6 having satisfied the Statute of Frauds, ought to be given validity by t he Court. He prayed that the appeal be dismissed and invited us to uphold the cross appeal with costs. 10.3 Counsel Phiri placed reliance on the 2nd Respondent's heads of argument and submitted that the Court makes an award on a quantum meruit basis to the 2nd Respondent as opposed to the Order the lower Court made in favour of the p t Respondent. 10.4 Much of what was submitted was a repetition of the arguments which have been fully considered. 11.0 ANALYSIS AND DECISION OF THE COURT 11.1 We have carefu lly considered the grounds of appeal and cross appeal reproduced in paragraph 4 and 5 above, the impugned Judgment and the arguments of the Parties. We are immediately confronted with a matter that is so heavily disputed and with only a few agreed facts, which we note as follows: a. The Appellant , Kakoma Farms, was the registered owner of the property known as the Remaining Extent of Farm 87a/G Chongwe. A copy of the certificate of title is seen on pages 161 to 158. b. Kakoma Farms appointed as its agent for the sa le of the said property, the 2nd Respondent, Mwena Estates. The letter of appointment dated 26 th June 2018 is seen on pages 128 to 130. J25 c. Kakoma Farms terminated its relationship with its Agent Mwena Estates, by letter dated 14t h November 2019. This letter is seen on pages 137 to 139. 11.2 In this appeal, we are also confronted with issues of the typical 'he said she said' narrative and urged to depart from findings of fact made by the lower Court. We are mindful of the limited circ umstances in which we may set aside such findings made by the lower Court. We refer to the oft cited cases of Wilson Masauso Zulu 7 and Susan Mwale Harman vs Bank of Zambia 12 which establish the principle that: "A n Appellate court can only reverse findings of fact made by the trial judge where the findings in question 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 court acting correctly could reasonably make". 11.3 Similar principles have been established by the cases of Ndongo vs Moses Mulyango & Anr13 , Amchile Import & Export Limited and Others v Ian Chimanga (T / A Tawana Business Ventures) and Another14 and the case of Nkhata and Others v The Attorney General6 • 11.4 This appeal also brings to the fore, issues in the law of contract that deal with Principal/Agent relationships and the extent to w hich an agent may bind the principal. Although the Appellant has canvassed seven grounds of appeal, we are of the considered view that most of t he grounds of appeal will be addressed by our pronouncement on the effect of the J26 agency relationship that existed between the Appellant Kakoma Farms and the 2nd Respondent Mwena Estates. 11.5 In our considered opinion, the key issues in this appeal are as follows: i. Whether, by the principle of law of agency, the Appellant is bound by the acts of the 2nd Respondent in relation to the sale of the Remaining Extent of Farm No. 87a/G, located in Chongwe District; and ii. Whether this Court, having regard to the evidence on record, should interfere with findings of fact made by the trial Court. 11.6 We are of the considered opinion that ground 1 of the appeal, forms the backbone of the entire appeal. All other grounds of appea l in fact hinge on this ground. The question, given that there was an agency agreement between the Appellant and the r d Respondent, is whether the 2nd Respondent had the power to appoint another agent for the same transaction in the manner that it had done. Theist Respondent has argued that there was valid contract of sale between the 2nd Respondent (as agent of the Appellant), and the pt Respondent. It has referred to the letter of offer at page 135. 11.7 As a starting point, we reflect on the basic tenets of Principal/Agent relationships and the rights, that such a relationship may confer on a third party. Many a transaction is challenged on account of the authority of an agent to bind the principal. It is also trite that where an agent may have exceeded his authority, Parties to a dispute may resolve their dispute based on commerce and good business sense. J27 .. However, where such dispute escalates its way to the Courts, the same will be settled in accordance with the law and principles properly established and, on the evidence, led before the Court. 11.8 In this appeal, it is imperative that we outline the fo llowing time line with reliance on the fol lowing documents to which we sha ll refer through our Judgment: 1. Appointment of Agent- Kakoma Farms to Mwena Estates -26 June 2018- page 128/130 2. MOU between Mwena and GAOL- 17 November 2018- page 131 3. Letter of Sale- Mwena to GAOL - 27 April 2019-page 133 4. Offer of Sale-Mwena to GADL-3 May 2019 -page 135 5. Receipt of K285,000- Mwena to GADL-3 May 2019- page 134 6. Status Report from Mwena to Kakoma- 4 October 2019- page 172 7. Status Report from GAOL to Kakoma- 4 November 2019- page 174/184 8. Termination letter- Kakoma to M wena- 14 November 2019 -page 137 11.9 We propose to deal with this appea l by addressing ground 1, which we believe will lead to the determination of some of t he oth er grounds of appeal. The Appella nt, in arguing ground 1, has submitted, that the trial Court misdirected itself when it held th at there w as a contract of sale of t he property between the 2nd Respondent an d the p t Respondent which extended to the Appellant. The 2nd Respond ent, Mwena Estates, argues that there wa s no prohibition in t he appointment letter which prevented it from subdividing th e property and sel ling it off in sma ll er parcels of land. The on ly requirement being that the principal, Kakoma Farms wanted K90 mill ion from the sa le. J28 11.10 The Appe llant has argued t hat at no time did it co nsent to the creation of a proposed housi ng project and all the incidental acts, such as applications to the Council for change of zon ing and usage, creation of subdivisions by the appointment of surveyors, publication of advertisements in t he newspaper and all other acts that are documented in the Record of Appeal . These were done w ithout authority of the Agent. 11.11 We draw our scrutiny to the appointment letter, which is the foun dational document that established the re lationship between the Appe llant and the 2nd Respondent. It has often been argued, and mistakenly so, in our opinion, that what authority is not proscribed, invariably means that it is allowe d. We believe that each document needs to be looked at in the contextual matrix of facts by the trial Court. We observe from a rea ding of the document entitled 'Letter of Appointment of Agent(s) on sale of property/agreement' dated 26 June 2018 (seen at page 128), that the Appe llant Principal appointed Mwena Estates as its Agent for t he sa le of the property (described therein) for a minimum value of K90 million. It was also agreed t hat any sums in excess of the K90 million wo uld accrue to and be fo r t he benefit of Mwena Estates. Paragraph 7, with handwritten notes in italics, provides as follows: "7 A. That the seller of the said land shall bear the costs of the following charges: (a) Any upgrading (if any) of Title from 14 to 99 year lease. N/A (b) State's consent to assign and ground rent. Yes (c) Property Transfer Tax. "will be paid by the Purchaser." J29 .. 11.12 We remind ourselves that the authority {to agent) conferred above, must be read in line with the next document in the timeline, namely the MOU dated 17 November 2018, signed between the 2nd Respondent and the 1st Respondent. This is seen on page 131. By a proper construction of th is document, we ask ourselves if the agent, Mwena Estates the 2nd Respondent, was allowed to delegate its functions to another Agent, the pt Respondent, by appointing a co-agent for this transaction? 11.13 To answer this question, we refer to the learned author Chitty on Contracts, volume 2 on Specific Contracts who state on page 23 paragraph 32-0401, the relevant parts read as fo llows: "When delegation permissible: An agent cannot, except with the express or implied assent of the principal, delegate his authority, and the principal will not be bound by the act or contract of a sub agent whose appointment is not thus sanctioned." Paragraph 32-041 provides as fo ll ows: "The normal effect of delegation is that the sub-agent is responsible to the agent; there is no privity of contract between a principal and sub-agent merely because delegation has been authorised1 • Privity of contract may be created if the agent has clear authority to create such privity, or his act in doing so is ratified, but the principal's knowledge of or consent to the employment of a sub-agent is not in itself sufficient to imply such authority. In the normal case the agent is liable to the principal for money received by the sub-agent to the use of the principal, and he is liable for the sub-agent's breaches of 1 Calico Printers Association v Barclays Bank (1931 ) L. T. 51 (HL a leading case ). J30 duty, whether the sub-agent is appointed with, or without, the principal's knowledge. " 11. 14 In revealing our mind on t his fundamenta l issue in casu, we have looked at t he several documents executed between the 1st and 2nd Respondent and on which th e lower Court identified three issues fo r determination and arrived at its finding t hat t he 'MoU,' having satisfied section 4 of the Statute of Frauds4, also attaches liability to the Appel lant. This reasoning is seen from pages J 36 to J 41. With the greatest of respect to the lea rned Judge in the lower Court, we believe that he may not have addressed his mind t o the fu ll scope of the documents exchanged between the 1st and 2nd Respondent. It is clear and we have noted from the timel ine above, that the 2nd Respondent firstly entered into an MoU with the p t Respondent on 17 November 2018. It then purported to offer the property for sale to the 1st Respondent dated 27 April 2019 and thereafter made a further offer of sale to the 1st Respondent dated 3rd May 2019. Each of these documents, care lessly drafted, did not cancel o r rescind the previous one, such that it is not clea r what the relations hip was as a result of all these agreements. 11.15 What is clear however, is t hat each of th e three documents conveys a different intent. One is an Mo U between 2 agents, the next is a provisional offer and th e last letter is an offer letter of 3rd M ay 2019 (seen on page 135/136). It is clear also t hat the rece ipt on page 134 and t he payment to the 2nd Respond ent appears to be part payment in respect of 15 acres based on the MOU (at K50,000/acre for 15 acres = K750,000 less paid =K285,000 showing a bala nce of K 465,000). J31 .. 11.16 We also have no hesitation in noting that the terms upon which the agency agreement was created was clearly em bodied in the document referred to above and as appearing on pages 128 to 130. It was simply for the sa le of the property at a va lue of no less than Kwacha Ninety Million. There was no authority granted to th e Agent (Mwena Estates ) to engage in any acts such as creating sub-divisions, applying for change of zoning usage, and in any way proceeding to develop a housing estate, nor was there any authority to appoint sub-agents. The 2nd Respondent simply got carried away with the prospect of w hat it thought it was going to earn, as opposed to reflecting on the limited nature of its agency mandate. 11.17 We are of the considered view that ext rins ic evidence ought not to have been brought in to add or subtract from the agreement. This position was confirmed in the case of Holmes v Buildwell Construction Company Limited 15 where it stated as fo llows: "where the parties have embodied the terms of their contract in a written document, extrinsic eviden ce is not generally admissible to add, vary, subtract from or contradict the terms of a written contract." The learned authors Chitty on Contracts, 29th Edition, vol 1 at page 752 paragraph 12-0953 state in relation to extrinsic evidence as follows: "that it is often said to be a rule of law that if there be a contract which has been reduced to writing, verbal evidence is not allowed to be given ..... so as to add to or subtract from, or in any manner to vary or qualify the written document." )32 11.18 We are therefore of the considered opinion that the trial Court misdirected itself in extending t hese agreements, to create a contractual relationship between the Appellant and the 1st Respondent, GADL. Even to impute knowledge of the Appellant much later in the period of the timeline, (around October/ November 2019, when it received the Status Reports), is not sufficient to arrive at its find ing that the Appe llant knew of and approved the housing project, to be applied retrospectively as th e tria l Court purported to do. We t herefore set aside the finding of the lower Court in so far as it found that there was a valid contract of sale of the property by extension to the Appe llant, for being perverse and based on a misapprehension of the evidence before the Court. 11.19 We therefore find merit in ground one of the appeal and uphold it accordingly. We believe by our reasoning and determ ination above, we have adequately addressed ground s 2, & 3 wh ich are also upheld. 11.20 In arguing ground 4, the Appellant has canvassed t he position that the lower Court erred in fact and law when it found that the Appel lant was willing to proceed with the housing project began by the Respondents without evidence from the intended purchasers to support the allegation. We have noted from the Record of Appeal, that the Appella nt upon receiving the status reports from bot h t he 1st and 2nd Respondent, pages 172 to 184 respect ively, did communicate through its Advocates to all the prospective purchasers of the proposed housing project. We have noted these letters from pages 189 to 200. 11.21 The undisputed position is that the property belon ged to the Appellant, w ho was the registered owner and could chose to do what it deemed best in the circumstances. We are of the considered view that to draw J33 .. inferences to suggest that the proposed housing project has in fact proceeded, and t he Appellant benefitted from it, is outsid e the scope of issues that we re before the trial Court. The only matters before the Court were the letters referred to above. The 1st Respondent, the Plaintiff in the Court below, did not lead any evidence or prove the claim that the project has or had continued in any material way, shape or form . Insinuation and or conjecture, ca nn ot be the foundation of t his finding. We set aside this finding as being perverse and a misdirection. Ground 4 has merit and we uphold it. 11.22 With respect to ground 5, it is the Appe llant's grievance that the t rial Court misdirected itself when it held that the i5t Respondent is entitled to payment on a quantum meruit basis. Before we move to analyse this ground, we rem ind ourselves that common law provides a convenient remedy when the injured party seeks not a precise su m alleged to be due to them, but a reasonable remuneration for services rendered. According to the learned authors Sangwani Patrick Ng'ambi and Chanda Chungu, in the ir book entitled Contract Law in Zambia, second edition 4, quantum meruit is classified as a claim in quasi-contract . 11.23 It is also commonly acknowledged and Halsbury's Laws of England 4th Edition vol 9 (1) at paragraph 1155 1 use the term quantum meruit in three distinct scenarios as fol lows: a. A claim by one party to a contract, for example on breach of the contract by the other party, for reasonable remuneration for what has been done; J34 .. . . b. A mode of redress on a new contract which has replaced a previous one; and c. A reasonable price or remuneration which will be implied in a contract where no price or remuneration has been fixed for goods sold or work done. 11.24 In casu, t he trial Court fo und that t he t hird scenario was most appropriate. The Court referred to t he case of DP Services Limited v Municipality of Kabwe5 t o refe r t o the principle that where a person is engage d in a professional capacity, barring any co nt ractual provision to the co ntrary, he is entitled t o be remunerated on a quantum meruit basis for the work actu ally carried out. 11.25 Whilst we have no reserva ti on t o th e princip le established by the above auth ority, havi ng already noted t hat t he 1st Respondent was not engaged by the Appellant, we are of the co nsi dered view that no liabilit y could attach itself to the Appellant. The question being: who should remunerate it? If anything, the only docu ment on record is the M oU between t he 1st and 2nd Respondent an d wh ich is seen on pages 131 from wh ich it was clear t hat fees if any, were to accrue from the 2nd Respon dent after sel ling the property. 11.26 Our attention has also been drawn to the provisions of Halsbury's Laws of England 4th Edition 1990 Reissue vol 1(2) at paragraph 1215 state as fo llows: ''An agent who is prevented from earning his rem uneration by the contract of the principal, is entitled to recover damages only if he J35 •• . . can show some term of the contract of which the principal is in breach." We have also noted the case of Way v Latilla 16 where the Court, in deciding whether there was a contract between two parties to justify the agents claim for re m uneration, held as follows: "There was no concluded contract between the parties to the amount of the share or interest that the agent was to receive, and it was not a duty of the court to complete the contract for the parties in that regard." 11.27 In casu, it was noted and admitte d at trial, that the 1st Respondent knew or ought to have known of th e limited capacity of the 2nd Respondent under the agency relationship. It is also clear that there was no relationship between the Appella nt and p t Respondent, no agency agreement an d certainly none that can attract an award of damages on a quantum meruit basis. We are alive to the limited circumst ances w hen a cla im for quantum meruit can be made under a void or il legal contract. We are aware of the decision of the Supreme Court rendered in the case of Rating Valuation Consortium and D W Zyambo & Associates (suing as a Firm) v The Lusaka City Council and the Zambia National Tender Board 17 as we ll as the decisio n of th is Court rendered in the case of Evolution Group Limited v Pan African Building Society18 which confirmed that where work is done at the re quest of the defendant and of w hich they have the be nefit, the Plaintiff can recover on a quantum meruit basis. 11.28 The Supreme Court in the case of Base Chemicals Zambia Limited and Mazzonites Limited v Zambia Air Force and Attorney General 19 confirmed J36 that quantum meruit is not dependent on a binding agreement and a party may be granted reasonable remuneration for work done regardless of the existence of a valid contract. We therefore come to the inescapable conclusion that the 1st Respondent did do works, though not as an Agent of the Appe llant, and for which the Appel lant may have derived some benefit, it is only fit and proper that the Appellant pays to p t Respondent such sums of money as reasonab ly expended by it, which shal l be assessed before the learned Registrar. To this extent, we set aside the finding of the lower Court awarding the p t Respondent payment on a quantum meruit basis as there is inconclusive evidence as to the extent of completion or whether there is in fact any intention to proceed with the ill-fated plans for the proposed housing project. 11.29 We replace it with an Order for the pt Respondent to be compensated for services rendered, to be assessed by the Registrar of the Commercial Court. This figure (to be assessed) unless sooner agreed, shall take into account the sums of money confirmed to be held by the p t Respondent as per its status report at page 174. The assessed sum shal l attract interest in accordance w ith the Judgment Act from the date of the assessment to the date of payment. To th e extent as varied above, we find merit in ground 5 of the appea l. 11.30 In arguing ground 6, the Appel lant has canvassed its position that the trial Court erred when it awarded the payment of the sum of K20,824,350 and the other claims under the counterclaim of the 2nd Respondent, as there was no proof that the property, the subject of the agency re lationship, was sold and any payment realised. We are invited to consider the old adage of a party being required to prove its claim, as settled by several notable J37 authorities such as the case of Zambia Railways Limited v Pauline S. Mundia and Another20 . It is as clear as day, that the property, re mained unsol d, the reserve pri ce of K90 million, remained un-pa id. 11.31 The learned author, Mumba Malila, in his book: Commercial Law in Zambia 6 states as follows: "The agent is entitled to remuneration if he acts within the scope of his authority. If he acts outside his authority, or without authority, for instance by selling property at a lower price than instructed, he is not entitled to commission even though the principal may be bound by the transaction ..... Alternatively, an agent may be employed to achieve a specified task. In that case the agent only becomes entitled to achieve remuneration when the specified event occurs. We have no hesitation in setti ng aside this award made by t he trial Court for being perverse and against t he weight of evidence availa ble before the Court. Ground 6 is accordingly upheld. 11.32 We will defer o ur consideration on ground 7 as it relates to costs until we have det ermined the cross appeal by the 1st Respondent GAOL. 11.33 Wit h respect to ground 1 of the 1st Respondent's cross appeal, we have already determined that the lower Court misd irected itself in its finding that there was a valid an d actionable agreement of sale. Having set that aside, t he i5t Respondent cannot argue for an Order for specific performance. The Supreme Court in the case of Gideon Mundanda v Timothy Mulwani, Agricultural Finance Co Ltd and S. S. S. Mwiinga 11 stat ed as follows: J38 " ... the court will not make orders which it cannot enforce and in future similar cases parties applying for the remedy of specific performance of contracts of sale of land would be well advised to come to court with evidence that, if the order they seek is made in their favour, all necessary consents will be granted. ' (emphasis is ours). 11.34 We are further of the cons id ered opinion that the facts in the case of Wesley Mulungushi 21 can be distinguished from the facts in casu, and any attempt to apply the decisio n of the Supreme Court on t he ground of specific performance, to the facts of this case is a misdirection. 11.35 The lower Court correctly found that there was no evidence of part perform ance an d declined to grant the Order for specific performance. We accordingly dismiss ground 1 of the cross appea l. 11.36 The 1st Respondent in ground 2 of its cro ss appeal, has challenged the lower Court, when it declined to award damages to it, despite what it submits is evidence of a val id agreement of sale on record and evidence of loss incurred by the p t Respondent. We have already determ ined that the re is no evidence of a sale, no mon ies received by the Appellant and no contractual relationship between it an d the 1st Respondent. We have also dealt with the issue of the 1st Respondent being entitled to some compensation (after assessment) for work done as not ed in paragraph 11. 29 above. As a consequence, and subject to our observations, ground 2 of the cross appeal is varied as above. 11.37 Alt hough the 2nd Respondent did not file a cross appeal, it purported to challenge some find ings of the lower Court an d left these fo r submission J39 .,..,, in its heads of argument. At the hearing, Counsel Phiri, attempted to canvass the argument that the lower Court erred in awarding paym ent on a quantum meruit basis t o the 1st Respondent. He urged the Court to note that this was a mere case of mistaken identity by t he lower Court and invited us to give the said relief to the 2nd Respondent instead. 11.38 W ithout belaboring the fact that we have already set aside the Order of payment based on a quantum meruit to t he 1st Respondent, we are appa lled at the casual argument seeking to reverse an order of the lower Court based on a submission from the Bar. We refer specifically to paragraph 8.6 above. We note also from paragraph 2.12 above, that the claim for payment on a quantum meruit basis was not pleaded in its defence and counterclaim before the lower Court. Furthermore, the proper procedure not having been observed, we w ill make no pronouncement on what appears to be 'mere protest ations' of the mistaken identity of the 2nd Respondent. 11.39 We revert now to ground 7 of the appeal in as far as it relates to costs. We are alive to the settled position at law that costs are generally awarded to t he successful party unless there are reasons to depart from the rule. W e refer to several authorities on t his principle such as B. P. Zambia Pie vs Zambia Competition Commission & others22 , YB And F Transport Lim ited vs Supersonic Motors Limited 23 and the case of Doyl e B Kap ambwe v M achona Kapambwe, Henry Machin a & Rose M Kamungu 24 . 11.40 However, and in the circumstances that face us, t he justi ce in this case will be best met by an Order that Parties bear thei r own costs here and, in the Cou rt, below. 12.0 CONCLUSION 12.1 Having found m erit in t he appeal, we allow t he appeal, save for t he Order of assessment in favour of the p t Respondent as fully stat ed in paragraph 11.28 and 11.29 above . 12.2 The 1st Res pondent's cross ap peal is dismissed. 12.3 The Part ies to bear t heir own cost s here an d in the Court below. M. J. SIAVWAPA JUDGE PRESIDENT F. M CH ISHIMBA COURT OF APPEAL JUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGE J41