Mnonoki Msebenzi and Anor v Sara Ngwenya (2022/HP/0179) [2025] ZMHC 97 (17 October 2025)

IN THE HIGH COURT FOR ZAMBIA ( AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MNONOKI .zHou MsFA3.~r'5f--.?:!~1 \COF RT OF~ N~ic::!!•~~L!:..--, FADZAI MSEBENZI 1 7 OCT 2025 AND SARA NGWENYA 2022/HP/0179 1 ST PLAINTIFF 2ND PLAINTIFF DEFENDANT Before the Hon. Mrs. Justice S. M. Walelani in Chambers on the 17th day of October, 2025. For the Plaintiffs: For the Defendant: Major I. M. Li nana(Rtd), with J. Tembo, Messrs Bancro Legal Practitioners N. K. R Samba, Messrs Samba Kayukwa and Company JUDGMENT Cases referred to: 1. Khalid Mohammed v. The Attorney eneral (1982) ZR 49; 2. Wilson Masauso Zulu v. Avondale H using Project (1982) ZR 66; 3. Construction and Investment Holdin · s Limited vs. William Jacks and Company Zambia Limited (1972 ZR 66; 4 . Sobek Lodges Limited vs Wildlife Authority, 2 008/ HP I 668; 5 . Gideon Mandanda v Timothy Mulw j ni and Agriculture Finance Company Limited and S. S. S Mwiing~J (1987) Z. R 29; 6. Wesley Mulungus hi vs. Catherine BUf_ali Chomba [2004] Z. R 96; 7. Saviours Mundia v Zambia Sugar PLC CAZ Appeal No.1 of 201 7; 8. Communications Authority V Vada om Zambia Limited, S. C. Z Judgment No. 21 of 2009; the contract but that the Defe dant again failed to honor the con tract. 2.4 The 1st Plaintiff stated tha 1n November, 2017, he rescinded the contract as he c uld not continue to wait for the Defendant to pay and ubsequently entered into another agreement with a pro ective purchaser. 2.5 The Plaintiffs averred that · December, 2017, upon learning that the Plaintiffs had rescinded the contract, the Defendant placed a Caveat on he Property to prevent the registration of any documen s thereon and to further prevent Change of Ownership any person who would be the subsequent purchaser. 2.6 The Plaintiffs stated that all ef rts to have the Defendant remove the Caveat have failed d that this has frustrated the Completion of the Sale with e subsequent purchaser. 2.7 In her Defence, the Defendan stated that it was agreed that a formal contract would e drawn between the 1st Plaintiff and the Defendant ut that no such formal contract has been drawn despi e several reminders to the Plaintiffs. 2.8 The Defendant averred that it as agreed between the 1st Plaintiff and the Defendant th t she takes possession of the Property which has resulte in her incurring expenses of paying the 9 workers that ere found on the Farm, a sum of ZMW31,200.00 (Th]rty-One Thousand Two Hundred Kwach a), electricity lills worth ZMW20,000.00 J4 (Twenty Thousand Kwacha) and other incidental expenses. 2.9 The Defendant stated that it came to her knowledge that the 1st Plaintiff intended to sale the Property to another person, prompting her to put a Caveat on the Property. She contended that at no time did the Plaintiffs inform her of any rescission of the agreement. 2.10 The Defe!ldant counterclaimed against the Plaintiffs the reliefs couched as follows: I. u. Specific performance; In the alternative, payment of all expenses incurred by the Defendant expecting the transaction to go through as follows: a. b. c. Paying 9 workers I found on the Farm to the tune of ZMW37,000(Thirty-Seven Thousand Kwacha); Electricity bills to the tune of ZMWl 2, 000(Twel I Thousand Kwacha); ZMW4,000 (Four 'Irhousand Kwacha) paid to the people the Plai tiffs were owing and paid on instruction of he Plaintiffs as payment towards the purch , se price; d. The sum of$10,00 ~ .00, paid to Rejoice Chela, a caretaker on the farm which payment was made to her on in truction from the Plaintiffs as payme nt towar s the purch ase price; JS .. 1.2 The Defendant denied the Pl ·ntiffs' claims through a Defence and Counterclaim fil d on 9 th March, 2022. The Plaintiffs then filed a Reply an Defence to the Defendant's Defence and Counterclaim on 2nd March, 2022. 2.0 THE PLEADINGS 2 .1 According to the Statement of laim, the 1s t Plaintiff is the • registered owner and Venda of Lot 5525/M Lusaka (hereinafter referred to as "the Property'') and that the 2nd Plain tiff is his spouse who Property, while the Purchaser of the Property. interest in the the intending 2.2 The Plaintiffs averred that December 2016, the 1st Plaintiff entered into a contr ct with the Defendant to purchase the Property at a pric of K650,000.00, and that it was a condition of the sale th ·. t the Defendant would pay for the Property in two instalm nts, the first having been due in January, 2017, and th final instalment not later than April, 2017. 2.3 It was stated that upon execufon, the Defendant moved some of her goods onto the pre ises and have been there since. The Plaintiffs averred at sometime in January, 201 7, the 2 nd Plaintiff remin ed the Defendant of her obligation to pay the first instal ent but she failed and/ or neglected to pay in accordance with the Contract. It was vied that sometime in April, 2017, the 2n d Plaintiff reminded the Defendant to pay the full purchase price of J3 .. 9. Maywynne Silcheme Limited v Martha Daka (Co-Administratix of the Estate of the Late Godfrey Nshimba Daka), Appeal No. 173 of 2018; 10. Philip Mhango V Dorothy Ngulube and Ors (1983) Z. R. 61 (S. C.); and 11. JZ Car Hire Limited vs Malvin Chala and Another (2002) ZR. 112. Legislation and other 'material referred to: 1. The Lands & Deeds Registry Act, Chapter 185 of the Laws of Zambia. 2. The Statute of Fraud 1677 3 . Atkins Court Forms 2 nd Volume 14 fl 99 Issue] 1.0 INTRODUCTION 1.1 The Plaintiffs commenced thi Matter on 9 th February, 2022, by way of Writ of Summo s and Statement of Claim, seeking the following reliefs: z. An Order of the Court for the removal of the Caveat placed by the Defendant ver property known as Lot 5525/ M Lusaka; u. Dam.ages for frustrating t e completion of the sale of Lot 5525/ M Lusaka due t the Caveat placed by the Defendant; m . An Order of the Court that the goods that the Defendant left at the su , ·ect property be removed forthwith; w. Interest on amounts found V . Costs of this suit; and vi. Any other reliefs as the Co rt may deem just. J2 e . . Clearing the pl9tl farm at Fifty Thousand Kwacha (ZMW sd 000. 00); f Surveyor's Fees ~aid by the Defendant to the Surveyor Sevente n Thousand Five Hundred Kwacha (ZMW 1 g. Construction of e green house that cost Twenty-Five usand Kwacha (ZMW 25,000.00); Costs; and Any reliefs that th Court may deem fit. h. i. 3.0 WITNESS STATEMENTS AND THEIHEARING 3.1 Both Plaintiffs filed Witness Statements as did the Defendant. 3.2 In his Witness Statement, 1s t Plaintiff, Mnonoki Zhou Msebenzi (PWl), essentially rehashed the contents of the Statement of Claim as regards hat transpired in relation to the Contract and the itions of sale which the Defendant did not honor. 3.3 He added that upon execution , f the Contract of Sale, the Defendant moved some of her g ods onto the premises and these have been there since the and that the Plaintiffs did not charge her occupational re 3.4 The 1st Plaintiff averred that due to the Defendant's breach of the agreement, he rescinded the Contract and entered into another sale agreement · h a different prospective purch aser in November, 2017. JG 3.5 He stated that the Defendant I ade use of the Property as she wished and any modificat ons to the Property were of her own choice at her own ri k without any permission frorn them. The 1s t Plaintiff averred that sometime in December, 2017, upon the Defendant learning that he had rescinded the Contract, placed a Caveat over the Property to prevent registration of any documents thereon, and to further prevent change of o3ership by any person who would be subsequent purchas r. 3.6 He added that he made all efforts to have the Defendant remove the Caveat but that fJed and this frustrated the completion of the sale with the subsequent purchaser causing great inconvenience. 3. 7 In cross-examination, PW 1 tated that he met the Defendant face to face in 2023, but that prior to that, they had been communicating thro gh phones and primarily emails where they exchanged ocuments. He stated that he sent the Defendant a contra t which he had signed. 3.8 PWl reiterated that the Defen ant was to pay a certain amount in January, 2017, and lthe balance in April, 2017. He also stated that he did a k the Defendant to pay someone who was related to hi but could not recall the amount as this was delegated t i the wife. 3.9 PWl stated that he wants thd Defendant to remove the Caveat so that they can sell theJ Property. He averred that he withdrew the contract they ad entered into but that J7 this was not done in writing. He averred that he did not write to the Defendant on the emoval of caveat. 3 .10 PW 1 responded that he knew he Defendant had incurred some expenses whose details ere known the 2nd Plaintiff. He added that he made several calls to third parties to help him get in touch with the Defe dant as efforts to get to her proved futile. 3 .11 In re-examination, PWl averre that he sold the Property to another person because the terms of the Contract were breached which stipulated the time within which payment should have been made. 3.12 The 2nd Plaintiff, Fadzai Msebenzi(PW2), stated that as the 1st Plaintiffs spouse she has a vested interest in the transaction of the sale of the Property. 3.13 PW2 also rehashed the aver, ents in the Statement of Claim save to add that their j iece, Rejoice, was dealing with the Defendant as they J ere in South Africa. She averred that it was agreed tha I the Defendant would pay for the Property within a year b November, 2017. 3.14 PW2 stated that the Defendant id not make any payment towards the Property and attem ts to get in touch with her to resolve the issue proved fu le. She also vied that she travelled to Zambia twice tot k to the Defendant but to no avail. PW2 contended that s · ce the year had lapsed in November, 2017, and they co ld not get a hold of the J8 Defendant, they decided to se 1 the property to someone else. 3.15 PW2 vied that they realised t at the Defendant placed a Caveat on the Property and t at all efforts to have the Defendant remove the Cav at failed and that this frustrated th~ completion of th sale with the subsequent purchaser causing great in con enience. 3.16 In cross-examination, PW2 sta ed that her niece, Rejoice, was the one residing at the F m and the Defendant. She admitted that her USD$1,000.00, from niece I Rejoice, received a the Defendant and that the Defendant also spent a K3,500.00, with her authority. PW2 stated that the said monies have not been returned to the Defendant as they agreed via phone that the said monies would be taken out of he sale money and would be considered as part payment or the Property. 3 . 17 PW2 averred that there was attempt at putting up a green house on the said land ut it was not done. She responded that to her recollec · on, she left six people at the Farm because the Defend t stated that she would take over the workers. 3 .18 In re-examination, PW2 stated at she had not paid back the US$1 ,000 .00, paid by the efendant because it was agr eed that it would be taken o , t of the purchase price. 3.19 The Defendant, Sara Ngwenya( W) stated that sometime in 2 01 6 , s h e w as approa che d b a Mrs. Ma soja who told J9 her that there was land being · old in Mwembeshi and she was interested as she is a far er. She averred that about two weeks later, she went wi Mrs. Masoja to view the Farm where they met Rejoice who introduced herself as the Plaintiffs' daughter. DW tated that Rejoice walked them around the Farm and sh wed them the Farmhouse, the field, orchard and banana lantation. 3.20 DW averred that Mrs. Masoja ccompanied them on this Farm visit in her capacity as Agent facilitating the sale. DW stated that she was then ·ven the contact details of the Plaintiffs by Rejoice so she could speak directly with them concerning the sale .of the Farm. 3.21 DW vied that expressed her interest to purchase the Farm to the 1st Plaintiff on the phone and he said he would travel to Zambia from South Africa for them to conclude the sale. DW averred that the 1st Plaintif offered the Farm to her at K650,000.00. 3.22 She added that in the meantim , the 1st Plaintiff asked her to pay an amount of $1 ,000.00, to his daughter Rejoice as payment towards the purchas of the Farm, and so that she could travel to South Afric to join them. She further stated that the 1st Plaintiff ask d her to settle some debt that they owed which amount uld be deducted from the purchase price. 3 .23 DW averred that she insisted at before she could give Rejoice the requested sum of$ ,000.00, the Plaintiff had JlO to send her an email with the etter of Sale and a copy of the Certificate of Title to secu e her interest in the land. She stated that she received e said Letter of Sale and copy of the Title few days later d then proceeded to travel to Lusaka from Mwembeshi ·th Rejoice and the Farm Manager Mr. Boyd Chikeke d that she paid Rejoice as requested. 3.24 OW vied that when Rejoice i formed her that she was leaving the Country, she req ested for their then Farm Manager, Mr. Chikeke, to st y at the Farm house as caretaker and to continue with he Farm maintenance and he agreed. OW averred that she made payments to Gertrude, a former worker whom the Plaintiffs owed the sum of K3,500.00; that she also paid for their ZESCO Bill the sum of K12,000.00; K35,8 0 to the Farm workers as salaries and for the maintenan e of the Farm. She added that she also paid Kl 7,000. 0, to have the land re surveyed at the request of the made various purchases to en ble her settle on the land as evinced in her List of Oocum nts. 3 .25 It was her testimony that she m · de various requests to the Plaintiffs to follow up as to w en they would travel to Zambia for them to finalise thei transaction. OW averred that she was initially told that e 1st Plaintiff was working at ESKOM in South Africa and e was only able to travel after two months. She added t at after the lapse of two J11 months, the Plaintiffs did not ravel and that she became worried about their excuses f not travelling, she then proceeded to place a Caveat o the land in 2017. 3.26 She averred that the Plaintiff told her that she should deposit the purchase price in o a Stanbic Bank Account but she told them they had to conclude the sale properly by meeting in person and av "ling her with an original Certificate of Title before she ould deposit the requested sum of money. 3.27 DW averred that she a call from Mr. Chikeke telling her that a lady known as Dorcas had gone to · the Farm saying that she had purchased the Farm but she did not believe because she had placed a Caveat on the Farm and wondered how the said Do cas bought the Farm. She stated that she contacted the laintiffs to enquire about the purported sale to Dorcas d they said she need not worry as she was just someon who was merely showing an interest in buying the Farm 3.28 DW stated that Mr. Chikeke t ld her that he was told to vacate the Farm by the 2nd Plai tiff because it was sold to Dorcas, of which he did. She dded that after about two vveeks or so she travelled to th Farm and found the said Dorcas on the Farm who was ostile to h er. She averred that she sought the help of th Police who told her that this matter be resolved throug the Court. J12 3.29 The Witness bemoaned that she made numerous phone calls to the Plaintiffs who did not assist but said that they had sold the land to Dorcas and she was told to get her equipment out of the Farm. DW averred that later on in year 2018, the Plaintiffs sued her under Cause Number 2018/HP/ 1849, before Honourable Justice Newa which Matter was dismissed. 3.30 ln cross-examination, DW re ponded that she met the Plaintiffs through a Mrs. Mas ·a; that she liked the land after viewing it; and that she w s told that part of the land was cut off to Thomas, their£ rmer worker but that she had no details of that. DW stated that she had no proof to show that the said land was subdivided. She added that she inquired from PW2 but he daughter Rejoice showed her the Certificate of Title whic had no subdivision. 3.31 DW testified that she entered i to an agreement with the Plaintiff via a Letter of Sale w ich showed the purchase price as ZMW650,000.00. She tated that, of that amount she paid the sum of US$1000 00, to the Plaintiffs' niece and a further K3 ,500.00. stated that she took possession of the subject roperty in early 2017, whereupon she resumed farm ng and planted trees and gave the worker to also plants ya beans. 3.32 bW stated that she was in poss ssion of the Farm for· three (3) years during which she id not pay rent to the Plaintiffs. She responded that when she took over the J13 Property, it was agreed that he would continue taking care of the workers because t e Plaintiffs were away and that they would reimburse he when they concluded the agreement. DW averred tha the employees were not working for her but for the Pl · tiffs 3.33 In re-examination, DW ave red that there was no agreement for the payment of rent to the Plaintiffs. She also responded that apart fro I the Sale agreement, the only other thing in writing w US$1,000.00, under the Plaintiffs instruction to give to heir daughter and that she could not recall anything else. 4.0 SUBMISSIONS 4 .1 The _Plaintiffs admitted that it ,s their duty to prove their case on the balance of probabillities in showing that they are entitled to the reliefs they seek before this Court as alluded to in the cases of alid Mohammed v. The Attorney Genera11 11 and W Ison Masauso Zulu v. Avondale Housing Project121. 4.2 ·It was submitted that the 1st aintiff and the Defendant entered into a Contract for the ale of Lot 5525/ M, Lusaka at a price of K650,000 .00., whi h the Defendant failed to fulfil there by breaching the entitling the 1st Plaintiff to rescind the Contract 4.3 The Plaintiffs also stated that espite being in breach of the Contract, the Defendant pr ceeded to place a Caveat on the Property d espite not bein beneficially interested or J14 having an enforceable right in it as alluded to in the cases of Construction and Investment Holdings Limited vs. William Jacks and Company Zambia Limited131 and Sobek Lodges Limited vs Zambia Wildlife Authority141. 4.4 It was contended that the Defendant's placing of the Caveat on the 1st Plaintiffs Property was unjustified as the 1st Plaintiff rescinded and/ or repudiated the contract between them as a result of thl e breach at the instance of the Defendant. 4 .5 With respect to the Countercl · I , it was averred that the Defendant is not entitled to the equitable remedy of specific performance of the contract as she was the one who breached the terms of the contract. It was vied that granting the Defendant the rem dy of specific performance would be going against an est blished principle of equity that 'he who seeks equity mus come to equity 1-uith clean hands and/ or must do equity.' 4. 6 Reference was made to the cas s of Gideon Mandanda v Timothy Mulwani and Agric lture Finance Company Limited and S. S. S Mwiingal51 and Wesley Mulungushi vs. Catherine Bwali Chombal I for the position that an order for specific performance i in the Court's discretion and only ordered where d ages cannot adequately compensate a party for breach of contract for the sale of land. J15 4.7 The Plaintiffs further disputed the claim by the Defendant that she spent Kl 7,500.00, on a Surveyor to have the Property in question surveyed as the Property was being sold as a whole and not as a subdivision, thus there was no need to have it surveyed. 4 .8 It was also stated that the Defendant is not entitled to the alternative reliefs relating to the expenses she incurred upon taking possession, as sh became responsible for all the expenses that arose as of her being in possession of the Property in i 4.9 In response, the Defendant st ted that she registered the Caveat as allowed by law as th intending purchaser, who had an interest in the Proper as she had made payment towards the purchase price according to the written agreement of sale and the su , sequent verbal agreement on payment of the purchase pr ce. 4.10 She also stated the Court shou d either order the Plaintiffs to complete the sale agreement or in the alternative, order that the Plaintiffs refund her the monies she had paid towards the purchase price at e Plaintiffs' direction. 4.11 She further stated that she is so willing to withdraw the Caveat subject to Section 83 of the Lands and Deeds Registry Act upon the Plain iffs refunding her all the monies and expenses spent as payment towards the purchase price. J16 5.0 CONSIDERATION AND DECISION F THIS COURT 5.1 I have carefully considered the Pleadings, the testimonies and the submissions presente by the respective Parties. In all matters where certain allegations are made and denied by the other party, th starting point is that the Party who alleges bears the b den of proof as alluded to in a plethora of authorities including in the case of Saviours Mundia v Zambia ugar PLC171, wherein the Court of Appeal stated that: ''the burden of proof pl ces the responsibility of establishing a particul r fact on its proponent." 5.2 It is therefore incumbent on he Plaintiffs to prove the allegations they have made and similarly for the Defendant to prove the allega ions in her counterclaim. From the Record, I find tha the following issues are common cause: l. The 1st Plaintiff is the regi ,tered owner of Lot 552 5/ M Lusaka; ll. The 1st Plaintiff wrote Letter of Sale dated 1st December, 2016, for the operty addressed to the Defendant which docum nt is on Page 4 of the Defendant's Bundle of ocuments; indicating the conditions of Sale inclu ·ng the purchase price of K650, 000. 00; m. The Def endant paid the laintiffs' niece the sum of US$1 , 000.00, and K3, 500 00, to the Plaintiffs' w o rk er J17 on the understanding th1t the said monies would go towards the purchase pri ,e of the Property; w. The Defendant moved to the Property in early January, 201 7, and was on the said Property for 3 years; and v. The Defendant placed a Caveat on the Property in 2018. 5 .3 I have also noted that con equently, the issues for determination are: l. Whether or not this is a p loper case to grant an Order of specific performance r for the removal of the Caveat; and ll. Whether or not the Plaintiffs or the Defendant are entitled to the damages al claimed? 5.4 After a careful perusal of the ecord, I find it pertinent to deal with · the Counterclaim fi st as the determination of the relief for specific perform ce will impact the other claims made by both the Plain iffs and the Defendant. 5 .5 With respect to the Defen ant's claim for specific performance, the Supreme Co rt offered some insights in the case of Communication Authority V Vodacom Zambia Limited18l wherein th y quoted the Atkins Court Forms as follows : "Specific performance is an equitable remedy which is available i certain cases, to the aggrieved party to a contract. When it is J18 available, he may obta n an order that the other party to the contract erforms his obligations thereunder, substantia ly according to the letter of the contract. remedy of specific performance is found d simply upon the fact that the normal comm n law remedy for breach of a contract, damages, is not in all the cases an adequate remedy". 5 .6 The aspect of adequacy of d I ages was reiterated in the case of Gideon Mandandi v imothy Mulwani and the Agricultural Finance Co. L ·d and S. S. S. Mwiingal5l wherein it was held that: "A judge's discretion in relation to specific performance of contra ts for the sale of land is limited as damage cannot adequately compensate a party fo breach of a contract for the sale of land." 5 . 7 From these authorities, it 1s clear that specific performance is at the Court' discretion and is a case specific remedy only available o a party claiming breach of contract and granted in ins ances where damages are not an adequate remedy for th loss of the Land. 5 . 8 In casu,' the Record shows tha the Defendant is alleging that she requested for a form contract which was never sent to her and that was the r ason why she did not pay the purchase price as agreed. he however stated that she J19 did receive a Letter of Sale fro the Plaintiff as appearing on page 4 of the Defendant's B ndle of Documents. 5. 9 A perusal of the Letter of Sale s ows that it provides details of the property; the Purchase rice of ZMW650,000.00, of which KS00,000 .00, was to , e paid as cash and the balance of KlS0,000.00, was o be paid within a year of transfer of Title Deeds. It furt er provides that the seller was to hold as security the Title Deeds to L/25340 /M until the outstanding amount wasp 5 .10 The question is, can this Lette of Sale be considered as a contract as alleged by the Pl · tiff? In this jurisdiction, it is common cause that for a co ract for the sale of land to be valid, it must satisfy the re uirement of Section 4 of the Statute of Fraud. This r quirement was elaborated upon in the case of Wesley ulungushi Vs Catherine Bwale Mizi Chombal61 as follo "In the case of for a or memorandum to satisfy section 4 of the tatute of Frauds 1677, the agreement itself ne d not be in writing. A note or memorandum o it is sufficient, provided that it contains material terms of the contract, such as or adequate identification of the matter and the nature of the considera 5.11 The Letter of Sale herein has cle ly identified the Property for sale; the Parties; and the c nsideration and has thus J20 fulfilled the requirements of the Contract of Sale as required by the Statute of Fra 5.12 In the circumstances, I find tha the 1st Plaintiff did provide the Defendant with the relev t Contract of Sale titled "Letter of Sale" and that he wa not in breach on account of failure to provide the co tract as alleged by the Defendant. 5 .13 Another aspect to consider is whether there was substantial performance by th Defendant to warrant this Court exercising its discretion to award the relief being sought. It is not in dispute th t the Defendant paid the sum of $1,000.00, and a K3,500.00, which was to be deducted from the purchase p ·ce. There was no further agreement as to the expenses legedly expended by the Defendant once she moved on t e Property to form part of the Purchase price. Indeed, t Defendant did not claim that the expenses incurred w re part of the purchase pnce. 5.14 Consequently, I find that the ounts of USDl,000 .00 and K3 ,500.00, were the only oun ts paid towards the purchase· price. that these amounts are basically insignificant when Price of K650,000.00 and to the Purchase not amount to substantial performance of the on tract by the Defendant. I am fortified in holding this vi w by the Court of Appeal decision in the case of Maywy Silcheme Limited v J21 ... Martha Daka(Co-Administra ix of the Estate of the Late Godfrey Nshimba Dak an Order of specific performance was up eld on the basis of the purchaser's substantial payme t of the purchase price of K2,205.00, with a remaining alance of only K125. In addition, coupled with the fa of the purchaser having been in possession of the lan for 3 years carrying on farming activities, it was tated that these facts demonstrated a sufficient equi ble interest in the land to warrant enforcement of the co 5.15 The 1st Plaintiff stated that he I ad rescinded the Contract due to non-performance by the efendant. However, there was nothing on the Recor to show that he did communicate to the Defendant bout the rescission of the Contract, nor is there a Notice o complete. 5.16 A perusal of the Letter of S e shows that there was supposed to be a cash paymen of KS00,000.00, and the balance of K150,000.00, shoul have been paid within a year from the date of transfer of the Title Deed and the Buyer we.s supposed to pay all costs associated with the transaction. 5.17 As earlier alluded to, the o ly steps taken by the Defendant was to pay the US 1,000.00, and K3,500.00 towards the Purchase Price as ell as taking possession of the Property. It was not in disp te that this state of affairs J22 existed for 3 years save to add that the Defendant placed a Caveat on the Property some ime in 2018. 5.18 It is my considered view t at this conduct by the Defendant shows that she was not desirous of concluding the trans_action. Thus, the 1st lain tiff cannot be blamed for rescinding the albeit, it was not communicated in writing to the Defendant, but by conduct of authorizing "Dorcas" taking ossession of the Property 5 . 19 Based on the foregoing facts d authorities, I find that the Defendant is not entitled t the discretionary remedy of specific performarice as dam ges would be an adequate remedy and I decline to grant it. This claim is therefore dismissed. 5.20 The Defendant also countercl ·med, 1n the alternative, that after she took possession o the Property, she incurred expenses including paying sal ies to 9 workers found on the Farm; Electricity bills; for c earing the -Plot/Farm; and Surveyor's Fees as well as pa ent for construction of the green hmise, with the quantifie amounts as listed under Paragraph 2.1 O(ii) herein. 5. 21 The need to provide proof of lo s or damage suffered has been alluded to in a number of bases including in the case of Philip Mhango V Doroth Ngulube And Orst101 as follows: "Any party claiming must prove that loss and do so wit evidence which makes J23 it possible for the court to determine the value of that loss with fair amount of certainty." 5.22 In cross-examination, the Defendant stated that she took possession of the Property in early 201 7; that she asked the Farm. Manager to stay on; that she started farming and that she gave the worker to plant pigeon trees. There was no evidence adduced to show that she incurred these expenses on behalf of the Plain 1iffs. These expenses, in my view were incidental to her occ pation of the Farm. Thus the claim for the workers' s aries in the amount of K37,000.00, fails. 5.23 The Defendant claimed the sum of K12,000.00, for electricity payment but she has not provided any evidence to the effect that she paid the s ·d Kl2,000.00, or whether the said amount were incurred y the Plaintiffs before she took possession. This claim, th refore fails. 5.24 This is equally the fate for e claim of KS0,000 .00, incurred for allegedly clearing he land in dispute at the behest of the Plaintiffs, and als with respect to the claim for the Surveyors' Fees as well s construction of a green house on their instruction. 5.25 In the absence of tangible proo , I find that the Defendant has not discharged the burden of proving her claims and they, the ref ore, fail. 5.26 What is the undisputed eviden e before me are the sums of US$1 ,000.00, and K3,500.0 , which were paid by the J24 Defendant at the Plaintiffs' req est and were to go towards the Purchase Price. I therefore Order that the said monies be refunded to the Defendant ·th interest thereon. 5.27 With respect to the Plaintiffs' irst claim for an order of removal of Caveat, the law un er Section 81 (1) of the Lands and Deeds Registry A t provides recourse to the registered owner or any intere ted person who may wish that it be removed. The said Se tion provides as follows : "(1) Such Registere Proprietor or other interested person may, lf he thinks fit, summon the caveator, or the person on whose behalf such caveat · has been lodged, to attend before the Lands Tribunal, Court r Judge thereof to show cause why such caveat hould not be removed." 5.28 In casu, the Defendant, as t e person who placed the Caveat, must show the Court c se why the Caveat should not be removed. In the ca e of Construction and Investment Holdings Ltd V William Jacks and CO. (Zambia) Ltdl3 l it was held that· "Only if a person has r purports to have an enforceable interest in and may he be justified in interfering with the ghts of the registered proprietor by lodging caveat. The caveator's ca-use for lodging a cave t is dependent upon •his claim to be entitled to n interest in• land and that 'reasonable' in this ense means 'justifiable'" J25 . .... 5.29 A review of the evidence show that, save for the refund awarded under Paragraph 5.25 herein, the Defendant has not sho\.\'ll that she has an nforceable interest in the Property to sustain the Caveat n the Property. In fact, it has been submitted that she was ready to remove the Caveat upon being paid her c aims. In any event, I find that this a proper case in which to order the removal of the Caveat placed by the Defendant as she has no enforceable interest in it. 5.30 The Plaintiffs also claimed dam ges against the Defendant for frustrating the completion f the sale of Lot 5525/M Lusal{a due to the Caveat sh placed on the Property. There is no evidence that has een adduced or rio proof produced by the Plaintiffs to how that the Defendant frustrated the completion o a sale with another purchaser. The need to produc proof of the damages has already been referred to in the c· ed case of Philip Mhango V Dorothy Ngulube And Ors1 10 and restated in the case of JZ Car Hire Limited vs Mal in Chala and Another1 111 inter alia that: "It is for the party cl iming any damages to prove the damages." 5. 31 In the absence of proof of ages suffered by the Plaintiffs, I find that this claim as no basis and I dismiss it accordingly. J26 6.0 CONCLUSION 6.1 In the sum total, I find that t e Defendant has failed to prove that she is entitled o an Order for specific performance and that she is o ly entitled to a refund of the sums ofUS$1,000.00, and 3,500.00. These amounts shall be paid back with interes at short term deposit rate as determined by Bank of ambia, for the relevant currency, from the date of pa ent by the Defendant to the Plaintiffs' proxies to the da e of Writ and thereafter at the lending interest rate as d termined by the Bank of Zambia. 6.2 I, find that the Defendant has no enforceable interest in the Property and grant the Plai tiffs' relief or an Order for removal of Caveat. Thus purs ant to Section 81 of the Lands and Deeds Registry A t, I Order that the Caveat placed on Stand 5525/M Lu aka by the Defendant be removed forth with. Further, that the goods that the Defendant left at the Prop rty should be removed forthwith. 6.3 Taking into account the cond ct of both Parties, I Order each Party to bear its own Cos r---..___ Delivered the 17th day of Octob J27