Kekelwa Samuel Kongwa v David Nkhata (APPEAL NO. 8 OF 2017) [2017] ZMCA 484 (28 September 2017)

IN THE COURT OF APPEAL FOR Z HOLDEN AT LUSAKA (Civil Jurisdiction) , . ~ EAL NO. 8 OF 201-V Pt:;_1 0 ; ,.,_ ... _ _ _ · 2 8 SEP 20Y BETWEEN: KEKELWA SAMUEL KONGWA AND DAVID NKHATA I I ' " •~~ Mt. Rf<,!SfRY 1 ~ ~so,)5n:r.. · '-· ....... APPELLANT RESPONDENT Coram: Chisanga, JP, Chishimba, Sichinga, JJA On the 28th day of S eptember, 2017 For the Appellant: For the Respo.ndent: Mr. B. J. Mwanza & Mr. K. Mwale of Messrs Legal Resources Chambers 'No Appearance ·· JUDGMENT SICHINGA, JA, delivered the Judgment of the Court Cases referred to: 1. Rainford Habwanda v. Zambian Breweries Plc (2012) Vol 3 page 75 2. Tweedle v. Atkinson (1861) 1 B & S 393 3 . Anti-Corruption Commission v. Barnet Development Corporation (2008) ZR 68 Vol 1 4. Communications Authority v. Vodacom Zambia Limited (2009) ZR 196 5. Wilson Zulu v. Avondale Housing Project (1982) ZR 172 (SC) 6 . Inda Zambia Bank Limited v. Mushauka Muhanga ZR (2009) s . I 7. Dunlop Pneumatic Tyre Company Limited v. Selfridge and Company (1915) AC 847 8. Nkongolo Far m Limited v. Zambia National Commercial Bank Limited (2005) ZR 78 9. D & C Builders v. Rees (1965) EWCA 10. Khalid Mohammed v. The Attorney-General (1982) ZR 49 Other authorities referred to: 11. Chitty on Contract 28th Edition Volume 1 969 para 19-022 12. Lands and Deeds Registry Act Chapter 185 Laws of Zambia 13. Black's Law Dictionary 8th Edition, Garner, 912 14. M egarry's Manual of the Law of Real Property 63 15. Sn~ll's Equity 29 16. Modem Equity 15th Edition, J. E. Martin, 2 5 " " " " This is an appeal by Kekelwa Kongwa, the appellant, against the Judgment of the High Court delivered on 26th October, 2016 challenging the decision declaring the respondent, David Nkhata as the lawful owner of stand number 29520 Chalala, Woodlands, Lusaka. The pleadings reveal that the appellant, by writ of summons dated 17 th August, 2012, commenced proceedings in the court below -J2- . ; W · ., , r ./-1 : ,. . ,kf : . ,. . ,kf : . claiming: a declaration that h e is the legitimate proprietor of the property known as stand no. 29520 Chalala, Woodlands, Lusaka; an order to evict the respondent, who was the defendant in the court below from the said property; an order of injunction to r estrain the respondent whether by his agents, servants or whosoever from constru cting any further building, structure or any form of unexhausted improvement on the said property; and damages for the loss of use of the said property. The respondent entered appearance and defence denying that he was aware that the II I\ 1 , said piece ~f land belonged to the appellant when he began construction. That he only discovered that the said piece of land did not belong to the person he purchased from , when the appellant's brother approached him. The plaintiff's oral evidence was that in 2003, the Government, through the Ministry of Lands offered him stand no. 29520, Lusaka, which offer he accepted and fulfilled all the r equirements including settling the consideration and other expenses to the government and the local authority, Lusaka City Council. The appellant also paid for the survey of the land and other costs associated with the -J3- . .,.~ ~ : . . I' ,. .... ,. .. ' ..,.~ ~.: - . acquisition of the land. After settling all such fees, he applied for a Certificate of Title which was subsequently issued to him. He told the court below that he then embarked on getting authorization to develop the stand. When he went on site, he found that the respondent had erected a structure without his permission or that of the local authority. The respondent accepted that he did not have the council's permission to develop the land. The council then issued instructions for the " respondent ta demolish hiS" structure, bltt he carried on with ., construction upto completion and subsequently moved i-~to the house. In 2010, the appellant issued instructions to his lawyer, his brother, Francis Kongwa, now deceased, to engage the respondent over the land. The matter was also reported to the police and the respondent and two others were charged with fraud over the acquisition of the land. As the criminal trial took a long period to conclude, the appellant commenced civil proceedings, first in the subordinate court and subsequently in the High Court in 2012. -J4- • ./rf : ,. ,. "' : ·<• ,. . . ,. . /rf : The respondent and his alleged accomplices then engaged the appellant with the view to find an out of court settlement. The appellant was then given K30,000 in consideration of his travels from South Africa by one of the respondent's alleged accomplices, Kabinga. The latter informed him that the other two had not fulfilled their end of the deal. The said deal was that the respondent and his alleged two accomplices were to each pay a sum of money to the appellant for his other expenses and to offer him an alternative p lot. This agreement was verbal. The other accomplice, I\ I\ I \ I'\ I'\ one Sichamba, was the one who allegedly sold the plot to the respondent and was to find an alternative plot for the appellant. Under cross examination, the appellant accepted that he received a sum of K30,000.00. In re-examination, the appellant said he had incurred K60 ,000.00 in travel expenses from South Africa to Zambia. The said Sichamba had made him an offer to pay for the same in two instalments in addition to the alternative piece of land he was to be given by the -JS- . r r respondent. The appellant had been shown four plots for settlement but none of them turned out to be genuine. A second witness, a police officer, testified to the effect that the signature purporting to be that of the appellant on the contract of sale for the subject property was a forgery. He said the appellant never appended his signature on the contract of sale. On the other hand, the respondent's evidence in the court below was tp.at plot 29520 ~usaka had be~p advertised for sale at Chilenie market. He responded to the offeF, by calling the , number on the advert. One Godfrey Sichamba answered the call, and he met with him at Sichamba's friend's office, one Frank Bwalya, at the Surveyor-General's office. Sichamba produced a Certificate of Title which was in the appellant's name. Sichamba informed the respondent that the plot belonged to him but that it was registered in his nephew's name, Samuel Kongwa. The respondent then met the said 'Samuel Kongwa,' another individual, not the appellant, at the office of the Surveyor-General, who produced a national registration card purporting he was Kongwa. A site visit was -J6- ,. ,. . If : ,. ,- undertaken, and after seeing that it was virgin land, the respondent bought the plot from Sichamba for a consideration of Kl0,000.00. He said he took the Certificate of Title to the Ministry of Lands and he was told it was genuine. In May or June 2007, the respondent begun to build on the said piece of land. At the end of September, 2007 one Francis Kongwa, elder brother to the appellant (now deceased) passed through the plot and informed the caretaker that the land belonged to his brother. The respondent subsequently met with the appellant's brother, and it was agreed at this meeting that ,., ,., ,., J'\ ,.. Sichamba would compensate the -appellant. Sichamba accepted . . . . - that the plot was not his and that the 'Samuel Kongwa' that executed the contract was not the real Samuel Kongwa. The said Sichamba then offered an alternative plot. The respondent moved in the house he had built on the subject plot in October, 2007. In 2009, the respondent was invited to the Ministry of Lands to give an update on the alternative plot. He told the Ministry and the appellant that Sichamba was to find the alternative plot. In January 2009, he was summoned by the local authority over the disputed land and he was served a demolition order. -J 7 - ,· r -Ii .. . In 2010, the appellant made a complaint to the police. Sichamba, one Frank Bwalya and one Ms. Kaoma were arrested in connection with the sale of the land to the respondent. They were tried by the subordinate court. In 2011, Sichamba, the appellant and the respondent held a meeting where they agreed that Sichamba would pay K30,000.00 to appellant. In cross-examination, the respondent conceded that the Kongwa he dealt with was not the appellant. He said he was granted verbal " " permission to go ahead with construction in 2008. He denied that • l • l • : " ; " ; the house he built was an illegal structure. The respondent said his continued to stay in the house was on the basis of the agreement for K30,000.00 between the appellant and Sichamba. In re-examination, the respondent said he came to learn that the Francis Kongwa he dealt with was fake in October, 2007. The learned High Court Judge upheld the respondent's claim and declared that he was the lawful owner of the property and dismissed the appellant's claim. -JS- ,. Discontent with the High Court's Judgment, the appellant appealed to this court and framed eight grounds of appeal as follows: 1. The learned trial Judge misdirected herself in law and in fact when she accepted the respondent's testimony that K30, 000. 00 was for compensation for the plot; 2. The learned trial Judge misdirecte d herself in law and in fact when she found that the evidence that the appellant's late brother allowed the defendant to continue building was unchallenged; 3. The learned trial Judge misdirected herself in law and in fact when she found that the appellant validated the respondent's I\ I\ I \ I\ I\ transaction t(l,e moment he q,emanded compensation and or an alternative plot from Mr. Sichamba; 4. The learned trial Judge misdirected herself in law and in fact when she found that the respondent was privy to the agreement between the appellant and Mr. Sichamba; 5. The learned trial Judge misdirected herself in law and in fact when she found that the appellant had given up the property when he entered into negotiations and accepted the K30, 000. 00 as compensation. 6. The learned trial Judge misdirected herself in law and in fact when she found that the appellant had not come to equity with clean hands when he started dealing with the crooks; -J9- ,. ,. ,. ,. ,. . '-, .. 7. The learned trial Judge misdirected herself in law and in fact when she allowed the respondent's counter-claim for a declaration that he is the rightful owner of the property; and 8. The learned trial Judge mis directed herself in law and in fact when she did not d etermine the iss ue of the legality of the erection of the property. At the initial hearing of the appeal, only counsel for the appellant was in attendance. The matter was adjourned at the respondent 's instance to enable his counsel file heads of argument a s was conveyed to ,.. " the court by the appellant's counsel. At the " , ., I\ " subsequent., hearing cou~~el for respo~~ent had not filed the r espondent's heads of argument. Counsel for the appellant filed in written heads of argument upon which he sought to rely and orally highlight. In his heads of argument, Mr. Mwanza, learn ed counsel for the app ellant first gave a background to the dispute b efore us, the essential part of which we have captured in our introduction h erein. Counsel argued the grounds in clusters of grounds 1 and 4; grounds 3, 5 and 8 ; grounds 2 and 7; and ground 8 separately. -JlO- ,. ,. . /;l : contended, however, th a t the agreement entered into between the appellant and Sichamba in relation to the K30,000.00 does not state the purpose for which the money was received by the appellant. It is submitted that the lower court gravely erred when it found that the K30 ,000.00 given to th e appellant was compensation for the property when the agreement relied upon b y the respondent to prove his claim of ownership is silent on the purpose and consequently ought to have construed the agreement against the respondent. .. .. .. , . It is further submitted that the court below misdirected .itself when it found that the respondent was privy to the agreement between the appellant and Sichamba on account of the respondent having witnessed the agreement, and on account of Sichamba having agreed to let the respondent keep the property b ecause he had crooked both the appellant and respondent. It is submitted that the respondent never signed as a witness to the agreement because the record shows that the agreement was witnessed by one Silungwe Binnet. It is further contended that the said Sichamba did not testify before the lower court for it to draw the conclusion -J12- • r ,. . /'f : ,. that Sichamba agreed to let t h e respondent keep the subject property becau se h e had crooked both parties. It is submitted that the conclu sion drawn by the cou rt below is at variance with the proceedings before it because th e responden t could not have acquired any rights or liabilities u nder an agreement he was not a party to. Tweedle v. Atkinsonf2J and Chitty on Contract f1 1J is r eferred to in that regard. The arguments on grounds thr ee, five and six are that the learned trial judge 'misdirected hetself in law and' fact when she''found that " the appellant h ad validated the respondent's transaction th e • I • : • I • I moment he demand ed compensation . It is also argued that the t rial court misdirected itself when s h e found t h at the appellant had given up t h e p roperty when h e entered into negotiations and accepted K30,000 .00 as compensation and th at th e appellant had not come to equity with clean hands . According to learned counsel, the lower cou rt's finding was er roneous because at law the appellant is recognized as th e absolute owner of the property. Section 33 of the Lands and Deed Registry Act 11 21 and the case of Anti-Corruption v. Barnet Development Corporationf3J are -Jl3- 7. The learned trial Judge misdirected herself in law and in fact when she allowed the respondent's counter-claim for a declaration th at he is the rightful owner of the property; and 8. The learned trial Judge misdirected herself in law and in fact when s he did not determine the issue of the legality of the erection of the property. At the initial h earing of the appeal, only counsel for the appellant was in attendance. The matter was adjourned at the r esponden t's instance to en a ble his counsel file hea ds of argument as was conveyed to " the court by the appellant's counsel. At the " " subsequent_, hearing cou:r~-~el for respo~~ent had not filed the r espondent's heads of argument. Counsel for the appellant filed in written h eads of argument upon which he sought to rely and orally highlight. In his heads of argum ent, Mr. Mwanza, learned counsel for the appellant first gave a background to the dispute before us , the essential part of which we h ave captured in our introduction herein. Counsel argued the grounds in clusters of grounds 1 and 4 ; grounds 3 , 5 and 8; grounds 2 and 7 ; and ground 8 separately. -JlO- ,. ,. ,. ,. . ,/ Under grounds 1 and 4 , it 1s contended tha t the trial Judge misdirected h erself when she found that the K30,000 .00 given to the a ppellant wa s compensation for the plot and tha t the respondent w a s privy to the agreement b etween t h e appellant and Sichamba . Mr. Mwanza submitte d that the trial court erred when it found that t he sum of K30,000.00 given to the appellant by Sichamba was compensation for stand no. 2 952 0 , Lusaka because the agreement does not state the purpose for which the money was given to the a ppellant. " ,.. " giving the money to the -:tppellant, it is ~gued , the tri~ court ought " ,. " In the absence of any explicit rea son for to h ave construed the agreement between Sichamba and the a ppellant a gainst the r espondent in tandem with the contra proferentum rule which manda te s a tribunal of fa ct to construe a document with an obscure m eaning a gainst the proponent of the documen t. Reliance wa s placed the case of Rainfor d Habwanda v. Zambian Breweries Plc f lJ. Learn ed counsel points out tha t the court b elow r elied on the r espondent's testimony to com e to the finding tha t the m oney received by the a ppellant was compensa tion for the proper ty. It is -Jl 1- ·" : . . ,. r ,. r . , '-r contended, however, that the agreement entered into between the appellant · and Sichamba in relation to the K30,000.00 does not state the purpose for which the money was received by the appellant. It is submitted that the lower court gravely erred when it found that the K30,000.00 given to the appellant was compensation for the property when the agreement relied upon by the respondent to prove his claim of ownership is silent on the purpose and consequently ought to have construed the agreement against the respondent. ... ... It is further submitted that the court below misdirected .{ tself when it found that the respondent was privy to the agreement between the appellant and Sichamba on account of the respondent having witnessed the agreement, and on account of Sichamba having agreed to let the respondent keep the property because he had crooked both the appellant and respondent. It is submitted that the r espondent never signed as a witness to the agreement because the record shows that the agreement was witnessed by one Silungwe Binnet. It is further contended that the said Sichamba did not testify before the lower court for it to draw the conclusion -J12- • r r that Sichamba agreed to let th e respondent keep the subj ect property because h e h ad crooked both parties. It is submitted that the conclusion drawn by the court b elow is at variance with the proceedings b efore it b ecause the respondent could not have acquired any rights or liabilities under an agreement he was not a party to. Tweedle v. Atkinsonf2 J and Chitty on Contract f1 1J is r eferred to in that regard. The arguments on grounds three , five and six are that the learned " trial judge 'misdirected hetself in law and' fact when she"found that the appellant had validated the respondent's transaction the - ; - : - ~ -; moment he demanded compensation. It is also argued t hat the trial court misdirected itself when she found that the app ellant had given up the property wh en h e entered into negotiations and accepted K30,000.00 as compensation and th at the appellant had not come to equity with clean hands. According to learned counsel, the lower court's finding was erroneous because at law the appellant is recognized as the absolute owner of the property. Section 33 of the Lands and Deed Registry Act <121 and the case of Anti-Corni.ption v. Barnet Development Corporationf3J are -J13- . If : referred to in that respect. It is submitted that the respondent did not allege fraud to succeed in challenging title to the property which was vested in the appellant. As regards the lower court's finding that the appellant did not come to equity with clean hands and was therefore not en titled to be declared the legal owner, it is submitted that the court below misdirected itself by applying t h e principles of equity to this case. Learned counsel argues that the appellant was seeking to enforce his legal rights in,, the land which. accrued to him by virtue of b eing a ·title holder to ·the property. ·to distinguish .. between legal .,and equitable rights w e were referred to Black's Law Dictionary f13J and Megarry's Manual of the Law of Real Property f14J. Learned counsel furthe r urged us to consider principles of equity. It is submitted that the principles of equity cannot depart from statute. Snell's Equity f15J and Modern Equity f16J are relied upon for t his argument. Learned counsel contends that is inconceivable to conclude tha t the a ppellant would com e to equity with unclean hands when h e is the legal owner of the property and thus only capable of exer cisin g legal rights in the property. -J14- _,,, : ,. ,. Regarding ground seven and two , it is argued that the learned trial judge misdirected herself when she found that the respondent had proved his counter claim and that the respondent's assertion that he had obtained planning permission was unchallenged. It is counsel's contention that the respondent in the court below did not file into court an amended defence upon which the lower court could make a finding that the respondent had succeeded in his counter claim to the property. We are urged to consider the record of the court below that each party had been availed 7 days within ... ... ... , . :which to file arp.ended pleadipgs. That the appellant procee_ded to " file an amended statement of claim within the prescribed period whilst the respondent neglected to file its amended defence. The respondent's advocates thereafter made an application to the trial court to amend its pleadings exhibiting the amended defence which they then neglected to file. It is submitted that it was a misdirection on the part of the trial court to find that the respondent had proved its counter claim when in fact the respondent's advocates neglected to file the amended defence. We are the ref ore urged to interfere with two findings of fact: that the respondent had proved its counter claim; and that the respondent was granted permission to -JlS- ,. ,· ,. ,· build as being unchallenged, as being contrary to the record of proceedings in the court below. The case of Communications Authority v. Vodacom Zambia Limited f4J was r eferred to in relation to reversal of findings of fact. With respect to ground eight, it is argued that the learned trial judge misdirected herself in law and in fact when she did not d etermine th e question of legality of the building of the house of the r espondent. It is contended that the court below acknowledged the appellant's argument that the respondent did not obtain planning p ermission from the Lusaka City 'Council to buiid on the appellant's property. However, the trial court neglected to deal with the issu e of illegality of the structure erected by th e r espondent. It 1s submitted that trial courts should adjudicate on all issues 1n controversy so as to bring matters to a logical conclusion. The case of Wilson Zulu v. Avondale Housing Project f5J was relied upon for this proposition. We are urged to allow all the grounds of appeal and overturn the judgment of the court below . -J16- . "-,.. ' , /1 : . ,. r At the hearing before us, Mr. Mwanza, on behalf of the appellant relied on the heads of argument but augmented the arguments in relation to grounds 1 and 5 only . He submitted that at page J7 of the impugned judgment the court below noted that Sichamba had resolved to compensate the appellant. He had also agreed to find an alternative plot for the appellant. Yet the testimony of the appellant on record is that he was paid the sum of K30 ,000.00 by Sichamba only and the other two failed to pay him their part. The appellant in his testimony further said that he was to be paid for _his other expe_nses and he ~as offered an _alternative plot. Mr. Mwanza argued that the appellant in his statement of claim had averred that the respondent had agreed to pay the appellant an amount of money for the expenses and inconvenience caused to the appellant by the respondent and further offered the appellant an alternative piece of land. Mr. Mwanza pointed out that the proceedings of the trial reveal that the respondent through his advocate made an application to the court below for an a djournment in order to pursue an ex-curia settlement. The court granted the a pplication. After the adjournment the parties informed the court that they had failed to reach a settlement. Mr. -Jl 7 - r r ,. Mwanza submitted that the respondent was party to the arrangement to find an alternative piece of land for his client. He argued that the arrangement happened after the sum of K30 ,000.00 had been paid by Sichamba. Mr. Mwanza also pointed out the respondent's evidence on record was that towards the end of September, 2007 the appellant's elder brother, one Francis Kongwa, now deceased, passed through the subject property and informed the caretaker that the plot belonged to his brother, the appellant. That the respondent chlled the said " Francis ·Kongwa and told him he bou.ght the plot fr~m Sichamba and the appellant. He said Francis Kongwa informed him the Kongwa he dealt with was fake. Mr. Mwanza further illustrated from the proceedings on record that the respondent said Sichamba had agreed to give the appellant another plot. We reiterate that there were no arguments filed on b ehalf of the respondent. We h ave considered the grounds of appeal, the appellant's arguments, the impugned judgment, and the proceedings in the -Jl8- r ,· ,· -~ : ,. court below. We shall deal with the grounds of appeal in the same clusters that they have been presented b y the appellant's counsel. The gist of grounds one and four is whether the agreement in relation to the sum of K30,000.00 was ambiguou s in so far as it is being relied upon to assert the fact that K30, 000. 00 was given to the appellant by Sichamba as compensation for the loss of his land. The said agreement is couched in the following terms: "This serves to certify that I , Kekelwa Samuel Kongwa, " has on 31 st March 2011 received a sum of " I , Thirty Million K3'0, 000,000 Kwacha from GEOFFREY SICHAMBA KABINDA. Signed: KEKELWA SAMUEL KONGWA Date: 31/03/2011 Signed: GEOFFREY SICHAMBA KABINDA Signed: 31/03/2011 Witness: Silungwe Binnet Date: 31/03/2011 " An examination of the record of proceedings in the court below shows that the respondent relied on this agreement between the -J19- r r r ./if : - r appellant and Sichamba in order to prove his claim that th e appellant was com pensated in th e sum of K30,000,000 (K30,000 .00 rebased) for t h e p lot in issue. Qu ite clearly the d ocumen t relied upon is u nclear in relation to the p u rpose of the con sideration. Cou nsel for the appellant in r elyin g on the contra p roferentum rule h as urged us to constru e t h e ambiguity in t h e docu ment against t h e propon en t of t h e agr eement wh o sought to rely on it. Black's Law Dictionary describ es "contra preferentum" as the doctrine that in interpr eting d ocuments, ambiguities are to be construed ,.. ,., unfavou rably to t h e drafter. In the case of Inda Zambia Bank " " " " Limited v. Mushauka Muhangaf6J the Su prem e Court h eld inter alia th at: "4. If the insertion of the words, ''permanent and pensionable, " was a result of careless drafting, then under the doctrine of 'contra proferentum' the document has to be construed against them in favour of the respondent." In th e case at h and, the appellant's main claim in t h e court below was for a declaration th at h e was the legitimate proprietor of the -J20- . ,. r r ,. disputed parcel of land. We note from the record that h e produced certificate of t itle number 48532 in respect of stand no. 29520, Lusaka to asser t his legal interest. Further, th e trial court at page Jl3 had this to say in respect of the agreement for K30,000.00. "The document exhibited in court does not disclose why the K30,000.00 was given to the plaintiff. I am alive to Mr. Mwale's submission that extrinsic evidence cannot be admitted to add, vary or contradict the terms of a written document. I must state that this applies t o" this case as " . ' . . . ' . ' well, as the document is silent as to the purpose of K30,000.00, contrary to his client's testimony that it was compensation for his transport costs." A perusal of the respondent's own testimony reveals t h at after a meeting of the parties, Sichamba had agreed to compensate the appellant in monetary terms and to find him an alternative p lot. The respondent said he dealt with Sich amba in th e tr ansaction who told him the p lot was his, Sich amba prepared the contract of sale. By the end of September, 2007 th e respondent came to learn that -J21- ./; '. ,. . ,. ,. Sichamba, in fact did not own the said plot. According to the respondent Sichamba confessed to this and agreed to find the appellant an alternative plot, and to pay K30,000. A perusal of the record reveals that Sichamba was not called as a witness. The appellant in his testimony said the K30, 000 was compensation for his travel expenses incurred since h e was based in Sou th Africa. That evidence was not challenged by the respondent. In the absence of any evidence from the respondent "showing the purpose of the K30, 000. 00 we hold that the court below was entitled to accept the appellant's explanation. Failure to accept that evidence was a misdirection. We thus take it on the facts of this case that the said agreement for K30,000.00 was not intended to compensate the appellant for the loss of his legal interest in stand no. 25520. We accordingly upset the finding by the court b elow that the sum of K30, 000. 00 given to the appellant was compensation for the prope rty when the document relied upon by the respondent to prove his claim of -J22- ,. r r ,. ownership is silent on the purpose and consequently ought to have been construed against the respondent. Furth er, a perusal of the agreement in contention shows that it was executed by the appellant of one part and Sichamba of the other, and it was witnessed by one Silungwe Binnet. At p age J 15, the court below had this to say - "I am not persuaded by his counsel's (appellant's) arguments that the defendant is not privy to the ,, " agreement for compensation between Sichamba and " " ,., plaintiff. First the defendant signed as a witness and second, Sichamba agreed to compensate the plaintiff so that he could let the defendant keep the plot because clearly he had crooked both men." Mr. Mwanza also pointed out that the court b elow concluded that the respondent was privy to the agreem en t because firstly, the respondent s ign ed as a wit n ess to t h e agr eem ent and secondly , Sich amba agreed to let th e respondent keep the property because h e h a d crooked both the appellant and the respondent. Counsel -J23- ,. r -, ' . ); : submits that an examination of the document will show that the only witness who signed the agreement was Silungwe Binnet. It is further submitted that Sichamba did not testify before the trial court for it to draw the conclusion that Sichamba agreed to let the respondent keep the property because h e had crooked both parties. Our reaction to the finding of fact that the respondent signed as a witness is that it is an erroneous finding. According to the record of proceedings, this is what the respondent said of the agreement in his examination -in -chief: " " "I was p resent when i t was execute d. The document was from a writing pad. The plaintiff acknowledged receiving the K30 m i llion. The two signed and a witness Silungwe signed. Sichamba came with Silungwe and asked him to sign. I wish to have the document as part of my evidence. " The issue that we have considered h ere is whether the respondent had a cquired any right by virtue of an agreement to which h e was not a party to. Mr. Mwanza aptly invited us to consider the doctrine -J24- "' : - <~ ,. ' . of privity of contract. It is trite that the doctrine of privity of contract, as a general rule, stipulates that a contract cannot confer rights or impose obligations arising under the contract on any p erson except the parties to it. That is the import of the case of Tweedle v. Atkinson (supra) where the court h eld that - "A person cannot enforce a contract to which he is not a party." Further in the case of Dunlop Pneumatic Tyre Company Limited " v. Selfridge a.nd Company f7. J the House of ,Lords restated ,the rule ., on privity of contract per Lord' Haldane as follows: "In the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but, it cannot be conferred on a stranger to a contract as a rig ht to enforce the contract in personam." -J25- • r r r ,. r Applying the principle of privity of contract to the judgment of the lower court, we come to the inescapable conclusion that there was an error on the part of the lower court to find that the respondent though not a party to the agreement between the appellant and Sichamba, could acquire rights or be subject of liabilities under it. Having considered the entire evidence, we are of view that the trial court drew conclusions at variance with the eviden ce before it. Grounds one and four are bound to succeed. Undet grounds thtee, five and ''six, the appe'llant alleges 'a - . misdirection by the trial court when it found that the appellant had • : • ; ; ; - - validated the respondent's transaction the moment he demanded compensation. It is further alleged that the trial court misdirected itself when she found that the appellant had given up the property when he entered into negotiations and accepted K30 ,000.00 as compensation and that the appellant had not come to equity with clean hands. In advancing arguments on these grounds, learned counsel for the appellant referred to Section 33 of the Lands and Deeds Registry Act which stipulates that a Certificate of Title shall be conclusive as from the date of its issue thereof, notwithstanding -J26- r , )¥ : . ,. i., ' <~ · · ,. ,· the existence 1n any other person of any estate or interest. Mr. Mwanza implored this court on the basis of the case of Anti corruption Commission v. Barnet f3J to declare the a ppellant as the title h older to land because his title was not challenged on account of fraud by which reason h e could lose ownership. In our view, Section 33 of the Lands and Deeds Registry Act is unambiguous. It provides that a Certificate of Title s hall be conclusive as from the date of its issue and shall be subject only to such "encumbrances," liens, estates d'r interests as may b e shown dh the C~rtificate of Titi~. Further, Section 34( 1) (C) provides that the registered proprietor holding a Certificate of Title for an estate or interest in land cannot be deprived of his interest unless through fraud. It is trite law that fraud must not only be s pecifically pleaded but must also b e strictly proved as it requires to be proven on a burden higher than a balance of probabilities. The Supreme Court in Nkongolo Farm Limited v. Zambia National Commercial Bank Limited and Others f8Jheld as follows: "Where a party re lies on any misrepresentation, fraud, breach of trust, willful default or undue influence by -J27- -~ : ,. r ' '-,.. ' -~ : another party, he must supply the necessary particulars of the allegation in the pleadings. Fraud must be precisely alleged and strictly proved. There is no presumption of fraud. In the instant case, fraud was not alleged." In casu a perusal of the defence filed on 22nd November, 20 12 does not allege any fraud as against the appellant's interest in the property. We would agree with the appellant's counsel that the respondent, in asserting his claim to the property relied entirely on . ; . ~ - ~ - ; . the agreement dated 31 st March 2011, which in his own admission he was not privy to. In the absence of any evidence of fraud, or evidence that h e relinquished title to the land in issue, we would agree that the status of the appellant as registered owner of the property cannot be altered. We now turn to the finding by the court below that the appellant did not come to equity with clean hands and was therefore not entitled to be declared legal owner. On this issue Mr. Mwanza, on behalf of the appellant, reiterates his argument that the appellant -J28- r ,· r seeks to enforce his legal rights as a holder of a Certificate of Title recognized by Section 33 of the Lands and Deeds Act. He argues that there was a misdirection by the lower court to principles of equity because the appellant is vested with a legal interest. For th is argument, our attention is drawn to Black's Law Dict ionary where a legal right is defined as "of or relating to law; falling within the province of law, established, required or permitted by law." We were furth er referred to consider the distinction between legal and equitable rights as summarized by the learn ed authors of Megarry's Manu~l of the Law_ of Real Prop_e rty who state as follows: "There is a great difference between legal and equitable rights, this is sometimes expressed by the saying that legal rights are rights in rem, equitable rights are rights in personam. A legal interest is a right in the land itself, so that whoever acquires it is bound by t hat right, whether he knew of it or not. A legal right is like a live wire which shocks those who t ouch it whether t hey k now -J29- r ~ '-,. ... ,. ./1 : . ,. of it. Equity on the other hand is only enforceable against certain persons." The requirement of clean hands in equity means that equity will not permit a party to profit by his own wrong. The defense of unclean hands will apply where there is a nexus between the applicant's wrongful act and the rights he seeks to enforce. In the case of D & C Builders Ltd v. Rees f9J the appellant was a building firm that carried out some work on the respondents' house. The bill for the " work done "was £732, of which the resp'ondents had }5aid £250. When the appellant requested the balance of £482, the respondents - i - ; - ; - ; said the work was defective and they were only prepared to pay £300. The respondents knew the appellant was expenenc1ng financial difficulties. The appellant accepted the settlement of £300. The decision to accept the money would not ordinarily be binding in contract law, and afterwards, the appellant sued the respondents for the balance. The respondents claimed that the court should apply the doctrine of equitable estoppel, which could make a promise binding when it would normally not be. However on appeal, Lord Denning MR refused to apply the equitable doctrine -J30- . .'f : . .)¥ : - ,. ,· .. , u : ' . on the grounds that the respondents had taken an unfair advantage of the appellant's financial difficulties, and therefore had not come "with clean hands." In casu, we earlier found in considering these grounds that in the absence of fraud, the appellant's legal interest in stand no. 29520 Lusaka was such that he is the legal owner of the property. His claim was grounded in asserting his legal interest and not in equity. The respondent on the other hand, sought to assert an equitable ,-. right in the' property. We" have earlier d'.iscussed his pbsition too and come to the conclusion that he could not assert to the property • : • : • : . . on the basis of an agreement to which he was not privy to. Consequently we find merit in grounds three, five and six. In grounds 7 and 2, the appellant argues there was a misdirection by the court below when it found that the respondent had proved his counter claim and that the respondent's assertion that he had obtained planning permission was unchallenged. In arguing these grounds, the learned counsel for the appellant drew our attention to the record of proceedings which shows that the parties were availed -J31 - 7 d ays each within which to file amended pleadings. The appellant proceeded to file an amended statement of claim and reply within the prescribed period. However , the respondent did not file an amended d efence. The defence on r ecord does not show a counter claim. At p age J 16 th e court below said it was inclined to allow the defendant's counter-claim for a d eclaration that h e was the lawful owner of t h e property. In urging us to reverse the findin g of fact that the respondent h a d proved his counter claim, Mr. Mwanza cited the case of Communications Authority v. Vodacom Zambia Limited (supra) wher e t0-e Supreme Court stated that: _ " " " " "The appellant court will not reverse findings of fact made by a trial judge unless it is satisfied that 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, can reasonably make. " To us, it is clear that the respondent h a d not complied with the c ourt's direction to amend the pleadings within the prescribed -J32- . /rf • r -!' ' ./rf r . -! ' • .>( ,!' ' ' . ); ,. . ' . /y ,. -! ' -> p eriod of s even days . The d efen ce on r ecord does not r eveal tha t th e r esponden t had a claim arising out of the amended statem ent of claim filed by the appellant. We agr ee with the submission that the r espondent could not h ave proved a counter claim which was n ot before the court to consider. We are further urged to upset the finding of the trial court that the r espondent was granted p ermission to build a s being unchallenged on account of it b eing contrary to the record of proceedings of the court b elo~ . The finding' of the trial court at page J14 was a s follows: "I found the defendant to be more credible than the plaintiff. He accepted shortcomings in his case such as that he dealt with a fake Kongwa initially. Then he d iscovered the real Kongwa (plaintifj} through his late brot her, Francis. The late even allowed him to continue building, which e vidence was uncha lle nge d ." A p erusal of the trial court's proceedings s hows tha t under cross examina tion the r espondent told the court that h e had obtained -J33- ,· r permission from the appellant's elder brother, Francis Kongwa, to carry on building on the disputed property. That Francis Kongwa had given him a letter to that effect, but that it was not before court. The appellant's counsel argue that the respondent's evidence that he had permission to build was challenged. Counsel contends that in any event, the appellant's brother was incompetent to grant the respondent permission to continue building on the appellant's land . We agree with learn ed counsel for the respondent that the respondent's assertion that he had obtained p lanning permission was challenged. In the case of Khalid _Mohammed v! The " " Attorney-General flOJ the Supreme Court h eld: "1 . The appellate court may draw its own inferences in opposition to those d rawn by the trial court although it may not lightly reverse the findings of primary facts. " In the present case, upon considering the record, we are of the view that the trial court drew conclusions that were at variance with the relevant evidence. We are satisfied that the findings of fact by the trial court ought to be disturbed. We accordingly uphold grounds seven and two. -J3 4- r ,. ./1 : . ,. ·" : ,. . "-, ' In ground eight, we are urged to determine the question of the legality of the building of the house by the respondent on the disputed property. It is argued by counsel for the appellant that there was a misdirection by the trial court when she did not determine this. The lower court in its judgment at page J 14 said that the respondent was allowed to continue building on the property by the appellant's elder brother, Francis Kongwa, now deceased. We have earlier in this appeal interfered with the finding of fact that the respondent's assertion that he had obtained " planning permi_ssion was unchallenged. We have also confirmed " - . " " the appellant's legal interest in the property pursuant to Section 33 of the Lands and Deeds Registry Act which provides to the effect that a Certificate of Title is conclusive evidence of ownership of land in the absence of any challenge based on fraud. We have no hesitation in holding that the appellant Samuel Kekelwa Kongwa is the registered owner and title holder of stand no. 29520 Chalala, Woodlands , Lusaka. Ground eight is allowed. -J35- 1• I ..!, ..... ,.. ,.. ,.. The net result is that the appeal is upheld in its entirety. Costs shall follow t h e event, to be taxed in d efault of agreement . . . . . . . . . . . . . . . . . . . . ~ ~ ........ . F. M. CHISANGA JUDGE PRESIDENT " . , " ., -- . . . . . . . . . . . . . . F. M. CHISHIMBA COURT OF APPEAL JUDGE " " . , , ~ ; . . . . ·¥· ... S ·lii1NGA ...... . ~ COURT OF XPPEAL JUDGE -J36-