Msiska & Anor. v Salimu (Civil Cause 512 of 2013) [2017] MWHC 831 (1 December 2017)

IN THE HIGH CO URT OF MALAVV! LILONGWE DISTRICT REGISTRY CiVil CAUSE NUMBER 512 OF 2013 BETWEEN: H. J. K. MSISKA------------------------------------------------1 sr APPLICANT DR DO!\J A. LD REUBEN KAMD0NY0---------------------2ND APPLICANT EM I l Y ROSE SALi M U--------~------------------------------R ES POND ENT AND CORAM: HON. JUSTICE M. C. C. MKANDAWIRE Mwatumba, Counsel for the Applicants Chibwana, Counsel for the Respondent Mrs Jere, Court Reporter lta i, Court Interpreter JUDGMENT - This matter commenced through originating summons filed by the applicants whereby the applicants seek the determination of the court on the following __ questions: (a) Whether the 2nd applicant is entitled to ownership of property Title Number Chitsime 8/1/34 in Lilongwe. (b) \tVhether the respondent is only entitled to the balance. The applicants therefore pray to this court for: (a) A declaration that the 2 nd applicant is entitled to ownership of property Title i\Jumber Chitsime 8/1/34 in Lilongwe. (b) A declaration that the respondent is only entitled to the balance of the purchase price. (c) Any other order that the court may deem fit. (d) An order for the costs of the action. The applicants filed affidavits in support of the application . The first affidavit is that of the 1st applicant. It is marked as P Ext 1. The 1st applicant gave the background to the case. In a nutshell, on 20th of July 2010, the respondent sold him a house Title Number Chitsime 8/1/34 at a price of Mk4.9 million. A document which shows breakdown of money paid was exhibited as P Ext l(a). After part payment, there was a balance of Mkl,850,000. The respondent later brought a court case against the 1st applicant for failing to complete payment of the balance of Mkl,850,000. The case is Civil Cause Number 855 of 2011 Emily Rose Salimu vs Mr H. J. K. Msiska. A default judgment was entered in favour of the respondent on 25th May 2011 in which the i5t applicant was ordered to pay the principal sum with interest at the ruling Standard Bank lending rate with costs. The 1st applicant said that he had made an offer to settle the judgment debt by October 2012 after selling the property Number Chitsime 8/1/34 and the respondent accepted. The letter of acceptance by the respondent wa s tendered as P Ext l(c) . In December 2012, the respondent informed the 1st applicant that a potential buyer by the name of Dr Reuben Donald Kamdonyo had been found. Dr Kamdonyo paid Mk 6.5 million as full purchase price. The 1st applicant said that he produced the sum of Mkl,85.0,000 as settlement balance which she declined to receive. The respondent also refused to sign transfer documents to Dr Kamdonyo. According to the 1st applicant, Dr Kamdonyo is entitled to this house. The 1 st app li cant was subjected to a rigorous crnss-e xa (ninat ion. VJhat is clear from this exercise was that there was a sale agreement of Title Number Chitsime 8/1/34 between the 1st applicant and the 2nd applicant . The sale agreement is however not dated but there was payment of Mk6.5 million by the 2nd applicant to the 1st applicant. It is also clear from the cross-examination that the 2nd applicant was identified through an Estate Agent following an advertisement in the newspapers. It is also on record that both the 1st applicant and the respondent were involved in making arrangements for the property herein to be - disposed of. In other words, the sale of Title Number Chitsime 8/1/34 was not done behind the back of anyone . The evidence emanating from the affidavit of the 2nd applicant who also came to be cross examined on his affidavit was that on 7thNovemebr 2012, he saw an advertisement in the newspapers by Bango Estate Agents. The advert is P Ext 2(a). The property was selling at Mk6.5 million. When he got in touch with the Estate Agents, he met Mr Chirwa and Mr Mwale who advised him that they had to meet the respondent and her husband and pick the two at Biwi Triangle. The respondent and her husband were indeed picked and they all drove to go and view property Title 8/1/34 . After viewing the house, they dropped the respondent and her husband at the same place where they had picked her. The 2nd applicant together with the Estate Agents people proceeded to the chambers of Counsel Zeros Matumba and paid Mk200,000 so that counsel should discharge a charge on the property. It was at this time that the 2nd applicant learnt that the respondent had at first sold the same property to the 1st applicant and that there was an outstanding balance that the 1st applicant was to pay to the respondent. The 1st applicant said the 2nd applicand and the respondent that the 2nd applicant had to pay the p t that it was agreed amongst the 1st applicant, applicant as the owner of the property who in turn would pay off the respondent's balance . A sale agreement was executed and he paid the sale price. The respondent however declined to sign the transfer of the land documents as the title of the property was still in her names. She claimed that she never sold her property. The respondent also declined to receive the balance of the purchase price that the 1st applicant had paid her. What is clear from the evidence of the 2nd applicant is that at one point he dealt di rectly-with-th-e respondent-when-inspecting -the prope rty--:-The Estate -Age nt- vvas - also directly involved. He however said that when it came to payment of the money, the agreement was with the 1st applicant. His understanding was that the house was bought by the 1st applicant but due to the balance that was there, the ist applicant had agreed to have the house sold. The 3rd and last witness for the applicants was Raymond Chirwa of Bango Estate Agents. It is his evidence that after advertising the property, the 2nd applicant approached him and showed interest. The w itness said that together with the 2nd - applicant, they left for the place to view the property but on the way, they had to collect the respondent and her husband. It became clearer in cross-examination that Bango Estate Agents had been instructed by the respondent to advertise the property. According to the witness, the respondent told him that she had already sold the house to the 1st applicant but there was a balance of over a MKl million to be paid to her. Later on the respondent declined to sign the transfer documents. The respondent gave her evidence . She adopted her affidavit dated gth May 2014 which is Res Ext 1. This is an affidavit in opposition of the originating summons. The respondent also adopted her affidavits in opposition to the affidavit of the 1st applicant . It is Res Ext l(a). The respondent admitted receiving Mk3,050,000.00 being part payment of the purchase price of the property Chitsime 8/1/34. She went on to say that she did not agree with the 1st applicant to sell the property to the 2nd applicant. It was her evidence that the 1st applicant had surrendered her Title Deed to her after he cancelled the agreement and demanded his money back which money he had paid as deposit. Further, the applicant' s lawyers prepared a discharge certificate for Mr Msiska's loan with ECO Bank and she paid the said lawyer M k53,000 in order for her to get back the Title Deed . The next affidavit is in opposition to that of the 2nd applicant. The respondent denied any knowledge of a newspaper advertisement. She denied being picked from Bi w i but that Mr Chirwa and Mwale called that there was someone who wanted to see the house and the 2nd applicant came later. She however denied be ing party to the transactions relating to the Estate Agent, Dr Kamdonyo and the Lawyer. The last affidavit by the respondent relates to that of Mr Chirwa . The respondent denied having instructed Mr Chirwa to sell her property known as Chits irn e 8/1/34 located in Lilongwe. She sa id that in Novernbe, 2012, M, Lemon Chirwa phoned her and even followed her at Kamuzu Central Hospital and told he r that the 1st ap plicant had told him that she was selling her property and Mr • Chirw a informed the respondent that he had actually found a client for he r who - was based abroad. After a few days, Mr Chirwa phoned her and he came to pick her from Bwaila Hospital. As they were waiting for the customer she told Chirwa that the house was going at Mk6.5 million. Later on Dr Kamdonyo arrived and he asked her if she had a deed and she showed him a photocopy. Dr Kamdonyo undertook to contact her which he did not do. There was no agreement reached and she did not authorize Mr Chirwa to sell the house. In deciding this case, I have addressed my mind towards the relevant provisions which deal with land matters. In particular, I have looked at section 31 and 32(1) of the Registered Land Act. I have also looked at section 4 of the Statute of Frauds 1677. All these legal provisions have assisted me in appreciating the legal parameters of this case in as far as the factual situation is concerned. !\iy assessment of the evidence in this case is that at the beginning, there was a contract of sale of land between the 1st applicant and the respondent. As things turned out, the pt applicant did not honour his word after part payment for the land. He was thus dragged to court by the respondent and a default judgment was entered against him. To date, that judgmen t has not been satisfied. The onus was and is on the respondent to have the judgment enforced. As things turned out, the 1st applicant had used the same property as security for a bank loan with ECO Bank. The respondent had smelt a rat and she managed to assist the 1st applicant to have the title document redeemed from the bank when she personally paid Mk53,000. When the title documents were released they later landed into the respondent's hands. A lot of things seemed to have taken place between the 1st applicant and the respondent after the redemption of the title documents from ECO Bank. The net result is that the property in issue here was put on sale through an Estate Agent. From the totality of the evidence on record, I am satisfied that both the 1st applicant and the respondent were aware and had agreed that the house in issue here should be put on sale so that the money realized should be used to have their differences on the initial debt settled. I say this because the Estate Agent which had been lnstructed to adve1tise the house in the prlnt media communicated with the respondent that there was a potential client by the names Dr Reuben Kamdonvo. The resoondent in the comoanv of her husband / I I / • went to meet the Estate Agents' representative and the 2nd applicant. If at all the advertisement of this house was not done with the knowledge and consent of the respondent, the respondent who was accompanied by her husband could have protested then and there. There is also evidence on record which I believed that after viewing the house, the 2 nd applicant told them that he was very impressed - with the property and that he was advised to go and deal w ith the Estate Agents . The Estate Agent at that time was actually acting with the mandate from both the 1st applicant and respondent. A sale agreement was executed between the 1st applicant and the 2 nd applicant. The execution of this sale agreement was well known to the respondent as she had allowed the Estate Agents to take the 2 nd applicant to the lawyer for the 1st applicant. I am aware that the respondent wanted to pose as if she was not aware of all these arrangements. I however find that her conduct does not support what she would have loved this court to believe. My finding therefore is that the respondent herself w as party to th e arrangement that the property herein should be put on sale so that she recovers the balance that was owed to her by the pt respondent. The 1st applicant was interested in the sale of the property which he had not completed to fully pay for so that the deal with the respondent is a closed chapter. It should however be recalled here that the respondent had obtained a judgment in her favour for the balance _of the purchase price of the property. The respondent had the right to claim for specific performance for the balance which she did. The fact that she claimed for specific performance of the contract means that she was not interested in the property but the balance . The property was left to the 1st applicant. There was thus no rescission of contract here. Through an arrangement between the 1st applicant and the respondent, t he two agreed to sell the property. Having allowed Dr Kamdonyo the 2 nd applicant to inspect the property with her and her husband together with the Estate Agent, the 1st respondent gave an assurance to the purchaser the 2 nd applicant that all was fine with the property. If there was any impediment, the respondent could have raised an alarm . It was actually at that time that the 2nd applicant was informed that the sale agreement had to be executed with the 1st applicant because the house had - m1t1al!y 6een so!a to tne 1st appl icant ancf clue to an outstanaing Balance~ th_e ____ _ respondent would be paid her balance by the 1st applicant. This was an arrangement between theist applicant and the respondent and had nothing to do with the 2 nd applicant. The 2 nd applicant is therefore an innocent buyer for value without notice of the latest claim by the respondent. - I therefore declare that the 2 nd applicant is entitled to ownership of property title number Chitsime 8/1/34 in Lilongwe and that the respondent is only entitled to the sum of Mkl,850,000.00, interest and costs as per the default judgment. It is incumbent on the respondent to enforce this judgment against the 1 st applicant. The respondent should immediateiy surrender the title documents to the 2nd applicant. I order that the respondent should pay costs for th is action. DELIVERED THIS DAY OF DECEMBER 2017 AT LILONGWE M. C. C. MKANDAWIRE JUDGE - 7