Kasepa v Mulenga (Appeal 235 of 2013) [2016] ZMSC 196 (24 August 2016)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 235/2013 HOLDEN AT NDOLA SCZ/8/79/2011 (Civil Jurisdiction) BETWEEN: MULENGA KASEPA AND APPELLANT CHRISTOPHER MULENGA RESPONDENT CORAM: Mwanamwambwa, D. C. J., Malila, Kabuka, JJS. On the 19th May, 2016 and.?:-~...&'ol:'~I.. 2016 ~ FOR THE APPELLANT: Mr. V. K. Mwewa Messrs. V. K. Mwewa & Co. FOR THE RESPONDENT: N / A JUDGMENT Kabuka, JS, delivered the Judgment of the Court. Cases, Legislation and Other Works referred to: 1. Gary vs Smith (1889) 43 CH. D. 208. 2. Wesley Mulungushi vs Catherine Bwate Mizi Chomba (2004) Z. R. 96 (sq. 3. Broughton vs Snook (1938) 1 All ER at pages 417-418. 4. Chilanga Cement Limited vs Muhamed Dealers Limited (2008) ZR 168 (sq. Ishmail, Al Baqra General 5. Admark Limited vs Zambia Revenue Authority (2006) Z. R. 43 (sq. J2 6. David Howes and Others vs Betty Butts Carbin and Others (2008) Z. R. 155 (HC). 7. Augustine Kapembwa vs Danny Maimbolwa and The Attorney General (1981) Z. R. 122 (SC). 8. Anderson Kambela Mazoka and Others vs Mwanawasa (2005) Z. R. 140 (sq. 9. Central London Property Trust vs High Trees house Limited (1947) 1 KB. 10. Militis vs Wilson Kafuko Chiwala SCZ Judgment NO.3 of 2009. 11. Attorney-General vs Marcus Kampumba Achiume (1983) Z. R.l (S. C.). 12. BOC Gases vs Phesto Musonda (2005) Z. R. 119 (SC). The Statute of Frauds Act 1677 SA. The Supreme Court Practice Rules (White book)l999 Edition 0.18/8/40; 0.18/11/1. This is the appellant's appeal against a judgment of the High Court sitting at Ndola, which found that, by an oral contract of sale, the appellant sold his property known as Plot No. NDO 9463, Ndola, to the respondent. The facts of the case can be briefly stated. The appellant had applied for a piece of land from the Ndola City Council. In its letter to him dated 6th October, the Ndola City Council J3 offered the appellant a piece of land described as Plot No. NDO 9463 located on the Ndola-Mufulira road (hereinafter referred to as "the property"). As the appellant was at the material time working for the Zambia Revenue Authority in Nakonde, he requested his cousin, the respondent, a resident of Ndola to attend to all necessary formalities that were required to obtain title to the property. Acting on the request, the respondent paid all charges and fees demanded by both the Ndola City Council and the Ministry of Lands on the appellant's behalf. After all the necessary procedures were complied with, a Certificate of Title was finally issued in the appeilant's name and given to the respondent. When the appellant requested the respondent to release this Certificate of Title to enable him apply for development of the property, the respondent refused to do so. The appellant claimed that the respondent further interfered with the works already commenced on the property. This is what prompted the appellant to issue a writ of summons from the Ndola District Registry, against the respondent. In this action the appellant was seeking the following reliefs: (i) an order and declaration that he is the J4 legal and lawful owner of the property; (ii) an order for the respondent to surrender Certificate of Title No. 62978 relating to the property within 14 days; (iii) an order of interlocutory injunction to restrain the respondent, his agents and or servants from interfering with the appellant's quiet enjoyment of the property; and from further trespassing and interfering with the construction works. In his defence to the action filed m the court below, the respondent confirmed, he had acted on the request of the appellant to assist him acquire the property in issue. This included paying all fees and charges demanded by the Ndola City Council and the Ministry of Lands. The payments related to scrutiny fees, registration fees, consultancy fees, survey charges, lease charges and Certificate of Title fees, in the sum of K9,502,344.00 (K9,502.00). The respondent claimed that he also lent the appellant K5,400, 000.00 (K5,400.00). This brought the total amount advanced by the respondent to the benefit of the appellant and due from him, to K14,902,344.00 (K14, 902.00). According to the respondent's version of events, the appellant on the 4th of January, 2008 informed him that he was J5 unable to pay back these monies. The appellant instead offered the respondent to buy the property in question, at the purchase price of K18,000.00. The respondent paid him this amount but when he later followed up the issue of change of ownership, the appellant became evasive. He later requested for the release of the Certificate of Title to enable him proceed to apply for development of the property without first paying the monies he was owing the respondent. It is only when the respondent declined this request, that the appellant commenced the action against him in the court below. The respondent accordingly denied the appellant's claims and instead counter-claimed: (i) an order for the appellant to transfer the property in the respondent's name; (ii) damages for breach of contract; (iii) refund of K14, 902.00; (iv)interest on the said amount and costs. After hearing evidence from the parties, the learned trial judge found that, from the K9, 502.00 claimed by the respondent in various charges paid to the Ndola City Council and Ministry of Lands, only the sum of K7, 102. 00 was supported with receipts. Her finding was that on a balance of probabilities, the respondent had established that the appellant owed him K7, 102.00. The I court below further found, there was a transaction between the J6 two involving K18, 000.00 paid by the respondent to the appellant as evidenced by a document to that effect. This document was produced at the hearing and appears at page 40 of the record of appeal. The court considered the appellant's evidence admitting that he received K18, 000.00 from the respondent. It also considered the appellant's explanation that this payment was only made by the respondent to position himself as first buyer. On the evidence that the appellant had communicated to the respondent his intention to sell the property; the court found the K18,000.00 was paid in reaction to that communication. It is on this evidence that the court rejected the appellant's denial of the signature attributed to him which was on the document relating to the sale. The court instead considered that there was no explanation offered by the appellant on what basis the respondent could have made a payment of K18, 000.00 if the purchase price was indeed not disclosed to him. For the said reason, the court rejected the appellant's explanation that the respondent paid him K18, 000.00 so as to place himself as first buyer. The court was of the J7 vIew that, the respondent's versIOn of events on the point was more credible and accordingly found, that the money was paid as purchase price for the property in issue. The court also considered other evidence led by the appellant at the hearing of the matter, without objection from the respondent. This evidence suggested that the sale transaction contravened section 4 of the Statute of Frauds. According to this section, for a sale of land to be enforceable through a court action, it must be sufficiently evidenced In writing, by memorandum or note. The memorandum must also contain the names of the parties to the contract, all the essential terms of the contract, and that it need only be signed by the party charged. In this regard, the court below referred to the case of Gary vs Smith (1) where a rough draft, contemplating the execution of a more formal agreement was held to constitute a sufficient memorandum. The court further cited as authority, our holding in the case of Wesley Mulungushi vs Catherine Bwate Mizi Chomba (2) where we said that, for a note or memorandum to satisfy section 4 of the Statute of Frauds, the agreement need not be in writing. It is sufficient if it contains all the material terms of J8 the contract, such as names or adequate identification of the subject matter and nature of the consideration. The court below found, the document produced by the respondent as an acknowledgment of the purchase price, was infact only evidence of receipt of the money by the appellant. Consequently, that it fell short of meeting the requirements of SA of the Statute of Frauds. After observing that in terms of SA of the Statute of Frauds, absence of written evidence of sale of land is a defence to an action for enforcement of an agreement. The court below further observed that, such a defence must be specifically pleaded by the party wishing to rely on it. The court also noted, the appellant did not however plead SA of the Statute of Frauds in his defence to the respondent's counter-claim and that a mere denial is insufficient to raise the defence. The court's conclusion on the . issue was that, the defence of S. 4 of the Stat~te of Frauds, ~ould not be relied on by the appellant as it was only raised in his evidence at the hearing of the matter. J9 In the circumstances, the court below found there was only oral evidence of the contract of sale. She referred to the case of Broughton vs Snook (3) where, after considering S. 40 of the Law of Property Act, it was held that there was nothing innately objectionable to an oral contract for sale of land. Applying the ratio decidendi of that case, the court below observed that, S. 40 of the Law of Property Act was in substance to the same effect as SA of the Statute of Frauds. The court was accordingly persuaded by the case referred to and found, where the Statute of Frauds has not been pleaded in defence to an action, an oral contract for sale of land is enforceable. The court below found, the K18, 000.00 was paid by the respondent to the appellant as purchase price for Plot NDO/ 9463, Ndola and that effect should, therefore, be given to this oral contract of sale. She accordingly upheld the respondent's . counter-claim for specific performance of the contract of sale of the land to him by the appellant and dismissed the appellant's claim for a declaration that he was the legal owner. The appellant was directed to execute a conveyance in favour of the respondent. Judgment was further entered in favour of the JI0 respondent in the proved amount of K7, 102.00; interest on the said amount and costs of the action. It is against the said judgment, that the appellant now appeals to this court and has advanced four grounds of appeal, as follows: 1. That the learned judge in the court below erred in law and the Respondent had paid the sum of fact when she held that K18, 000.00 to the Appellant contention. for the purchase of the Plot in 2. That the learned judge in the court below erred in law and the defence of the Statute of Frauds fact when she held that Act was not available to the Appellant. 3. That the learned judge in the court below erred in law and fact when she held that an oral contract of sale is enforceable at law. 4. That the learned judge in the court below erred in law and the sum of K7, 102.00 in fact when she awarded the Respondent as payment made by him, on behalf of the Appellant, relation to the Plot. In support of the grounds of appeal, the parties filed written Heads of argument on which they wholly relied. The appellant's .counsel also filed a Notice of non-attendance at the hearing of the appeal, pursuant to Rule 69 of the Supreme Court Rules Cap. 25 of the Laws of Zambia. There was, however, no explanation offered to the court for non-attendance on the part of the respondent. Jll In proceeding with ground 1 of the appeal, learned counsel for the appellant referred us to the record of appeal where the trial judge made the following statement: "Ifind it difficult to believe that the Defendant (Respondent) paid the to position himself as first buyer without knowing K 18, 000.00 just what the actual price was. Rather the truth of the matter I think is that the Defendant paid for the purchase price of the Plot in contention and it was known by the parties that what he was paying for was the said Plot. (page 17 lines 10-15 of the record) It is my conclusion therefore that the Plaintiff (Appellant) received the sum of K 18 million (K18,000.00) for the said Plot pursuant to an oral contract of sale by the Plaintiff to the Defendant for the said sum. The question is, is the transaction the parties entered into enforceable?" (Page 18 lines 8-11 of the record) Counsel argued, notwithstanding the findings of the trial judge as quoted above, the respondent in his own evidence was not clear whether the K18, 000.00 was paid for the Plot in question. Although the appellant in his evidence admitted that the 'agreement' refers to the Plot as one located in Kansenshi area, the actual location of this plot is infact in the Mitengo area, on the Ndola-Mufulira road. The respondent further admitted, . Kansenshi area is far away from Mitengo. The submissions of counsel in this regard were that, the learned trial judge glossed over the fact that Mitengo and Kansenshi are two totally different areas which are separated by considerable distance, when she " J12 came to the conclusion that the money In Issue was paid In respect of Plot No. 9463, Mitengo, Ndola. On ground 2 of the appeal, the gist of the argument was that, evidence of the Statute of Frauds was raised at trial without objection from the respondent when he admitted under cross- examination, that the purported 'agreement' did not contain the description of the parties, or of the property and that it had only one signature, allegedly that of the appellant. Counsel submitted, where a defence not pleaded is let in by evidence and not objected to by the other side, the court is not precluded from considering it. That the trial court fell in error when it did not consider this evidence which was adduced and not objected to by the respondent. He relied for the submission, on the case of Chilanga Cement Limited vs Muhamed Ishmail, AI Baqra General Dealers Limited (4). The alternative argument on ground 2 was that, even assuming the Statute of Frauds was not pleaded, the same is a point of law which can be raised at any stage of the proceedings. The decision of this court in Admark Limited vs Zambia Revenue Authority (5) was cited as authority for the • J13 proposition. Counsel's submissions on the point were that, the appellant was within his rights to raise the Statute of Frauds, in his defence, albeit implicitly, through evidence led at the trial. Regarding ground 3 of the appeal, faulting the finding of the court below, that an oral contract for sale of land is enforceable at law. The argument was that, while the trial judge in her observations correctly spelt out the principle that for a memorandum to be enforceable it must contain all the material terms such as the names of the parties, the property to be disposed off, the consideration from the purchaser; and that oral evidence may not be gIven to amplify an incomplete memorandum. Counsel's submissions were that, the purported agreement or memorandum to which the trial court gave effect in the present case, is very incomplete and lacks material details for it to be enforced and is therefore invalid. In support of the submission, counsel referred us to a High Court decision in the case of David Howes and Others v Betty Butts Carbin and Others (6). He was, however, quick to point out that although not binding on this court, the case was still of very good persuasIve value. Counsel particularly referred to the • J14 observations of the learned judge to the effect that, where an alleged contract of sale was not preceded by any offer to sale or purchase, contained no date, and was only signed by the purchasers, such document lacked the pre-requisites for a valid contract. Finally, on ground 4, the thrust of the argument by counsel for the appellant was that, there was in existence at the material time, a business relationship between the appellant and the respondent. This business relationship was for mutual payment of monies on each other's behalf with the result that, the appellant was attending to settling payments on behalf of the respondent in Nakonde, while the respondent was doing the same for the appellant, in Ndola. Counsel argued that, whereas the respondent claimed the sum of K9,502, 244 as amounts paid to the Ministry of Lands and Ndola City Council on behalf of the appellant. The court found the receipts produced only confirmed payments amounting to K7, 102 .00. Counsel submitted that, in the absence of any attempt by the respondent to explain the composition of the K9, 502, 244 he claimed; or to amend the figure so that it tallies with • J15 the actual receipts and documents relied on, the court below erred in inferring that the respondent must have paid K7, 102. 00 to the Ministry of Lands and the Ndola City Council. Counsel further submitted, the trial Court was in the circumstances, also totally wrong to make an inference that the sum of K7,102.00 must have been paid, when in view of the business relationship between the respondent and the appellant, all the amounts paid were subject to a reconciliation and there was no reconciliation undertaken. In conclusion, counsel for the appellant urged us to allow the appeal. In her written Heads of argument, counsel for the respondent in response to ground 1, referred to evidence of the appellant appearing at pages 64 and 65 of the Record of Appeal. Counsel argued, this evidence shows that the decision to sell the property, Plot No.9463, was conceived by the appellant himself following which the respondent paid him the sum of K18,000.00. Counsel elaborated by noting that, in his evidence, the appellant conceded he did indicate to the respondent, that he might have to dispose of some property to enable him raise money to address financial challenges brought about by his brother's death. The • • J16 respondent got interested and wanted to purchase Plot 9463 which he said was strategically located in relation to his business investment interests. This evidence, argued learned counsel for the respondent, points to the fact that, the transaction centered around Plot No. 9463. The trial judge considered this evidence and in resolving the issue of who. was the more credible witness between the two, she rejected the evidence of the appellant, preferring the version of the events as given by the respondent. Counsel submitted, what this court is being asked to do In the circumstances, is to interfere with these findings of fact made by the trial judge. This would be contrary to the settled legal position, requiring the appellate court not to lightly interfere with findings of fact made by a trial court which had the advantage of hearing and assessIng witnesses. As authority for the submission, counsel relied on our decision In the case of Augustine Kapembwa vs Danny Maimbolwa and The Attorney General (7). On ground 2, the submission was that, the trial judge was on firm ground when she found, failure by the appellant to plead SA of Statute of Frauds as a defence, took the case out of the J17 purvIew of that statute. Counsel relied for the submission, on Order 18/8/40 of the Supreme Court Rules (White book), 1999 Edition which makes it mandatory for a party to plead the defence of Statute of Frauds. Counsel also cited our holding in the case of Anderson Kambela Mazoka and Others vs Mwanawasa (8) that: "The function of pleadings, is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute the between the parties. Once the pleadings have been closed, parties are bound by their pleadings and the court has to take them as such." On ground 3, the arguments of counsel for the respondent were that, contrary to submissions by the appellant that there cannot be an oral contract for the sale of land. The trial judge was on firm ground when she held that, an oral contract of sale of land is enforceable at law. In support of the submission, counsel cited the celebrated English case of Central London Property Trust v High Trees House Limited (9). Finally, on ground 4, attacking the finding of the court below, that the respondent had established he had made payments relating to fees and charges on behalf of the appellant in connection with the appellant's acquisition of the property. The JIB submission by learned counsel for the respondent was to the effect that, the trial judge cannot be faulted for a finding which is supported by the evidence on record and was arrived at after due consideration of such evidence. Counsel concluded by urging us to dismiss the appeal. We have considered the Heads of Argument and submissions filed on record, the cases and statute to which we were referred. We will now proceed to deal with the grounds of appeal in the order in which they were presented. Starting with ground 1, that the learned judge in the court below erred when she found the respondent had paid the sum of KlS, 000.00 to the appellant for the purchase of the property in contention. We have considered the evidence on record which shows that the appellant did not deny he communicated his wish to sell his property to the respondent and at the trial, admitted receiving the KlS; 000.00 in respect of Plot No. 9463 (at pages 63 and 64 of the Record of Appeal). His only contention was that, in making this payment, the respondent sought to place himself ahead of any other persons that may also be interested in purchasing the property. Consequently, that the amount paid JIg was therefore not the purchase pnce. The testimony of the respondent on the other hand was that, he paid the K18,OOO. OO at the request of the appellant, as purchase price for Plot No. 9463. In resolving these conflicting positions, the trial judge started by considering the evidence on the point. She then explained why she rejected the appellant's story in the following observation: the Defendant to believe that (Respondent) paid the "J find it difficult to position himself as first buyer without knowing what K18,000.00 just the actual price was. Rather the truth of the matter J think is that the Defendant paid for the purchase price of the Plot in contention and it was known by the parties that what he was paying for was the said Plot."(page 17 lines 10-15) It was only after making that assessment of the parties' evidence, that the court made the following finding of fact: "ft is my conclusion therefore that the Plaintiff (Appellant) received the to an oral sum of K 18 million (K18,000.00) for the said Plot pursuant contract of sale by the Plaintiff to the Defendant for the said sum. The question is, is the transaction the parties entered into enforceable?" (Page 18 lines 8-11) The above quotations which were also relied on by counsel for the appellant, in our view, only go to confirm that, this was clearly a finding of fact. It was arrived at by the trial judge, after evaluation of the evidence before her and assessment of the credibility, of both the appellant and the respondent. Needless to restate that, this court has pronounced itself on appeals J20 premised on findings of fact in a number of cases, including the case of Attorney-General vs Marcus Kampumba Achiume (10) where we said that: it is satisfied that "The appeal court will not reverse findings of fact made by a trial judge unless in question were either perverse or made in the absence of any relevant evidence of the facts or that they were findings or upon a misapprehension which, on a proper view of the evidence, no trial court acting correctly can reasonably make." the findings We further note that in the present appeal, the evidence shows the trial court did not give effect to the memorandum constituting the agreement relating to the sale of the property in issue, as argued by learned counsel for the appellant. The court rather relied on oral evidence which established an oral contract of sale for the property in issue having been entered into between the appellant and the respondent. She found that the purchase price for the same was K18, 000.00 and that the appellant in his evidence acknowledged receiving this money. In the absence of any evidence showing that the appellant had told the respondent the actual purchase price for the property; the court rejected his explanation that the money he received was only a part payment towards the intended sale. We do not see on what basis we can interfere with this finding of fact made by the trial judge, . , , J21 constituting ground 1 of the appeal. Learned counsel for the appellant himself did not point us to any of the settled reasons for doing so, as outlined in, amongst others, the case of Achiume v Attorney-General, quoted above. Coming to the other argument that was advanced on ground 1 which relates to mis-description of the property that was actually sold. It was the submission of learned counsel for the appellant, that according to the respondent's evidence, the plot sold to him by the appellant was in Kansenshi area. Yet it was clear even from the letter of offer, that the plot he was claiming in the action is in the Mitengo area on the Ndola-Mufulira road. Our perusal of the record shows the letter of offer to which we have been referred by learned counsel for the appellant and even the appellant's own evidence on record are to the effect that, the property in issue is described as Plot No. NDO 9463, Ndola which is located in Mitengo area. The appellant in his evidence testified, the said property in issue was conveniently located to that of the respondent, as it was adjacent to two other business Plots of the respondent. That the respondent paid for it in order to position himself as first buyer (at pages 63 and 75). It appears " , J22 from this evidence, that the parties as between themselves certainly entertained no doubts, that the property subject of the dispute is the same one subject of the letter of offer which was followedup by the respondent on the appellant's behalf. As we held in the case of BOC Gases v Phesto Musonda (11), where the parties are clear on the subject matter of their agreement, a mistake In the description cannot affect the transaction. The court in such circumstances, must give effect to the true intention of the parties. Even if we were to assume there was indeed a misdescription as argued by learned counsel for the appellant. The true intention of the parties in this case, as correctly held by the trial judge, was that by oral contract of sale the appellant offered his property known as Plot No. NDO 9463 Ndola, to the respondent at a purchase price of K18,OOO. OO which the respondent paid. This finding is certainly one that is supported by the evidence on record. Ground 1 of appeal faulting the said finding, cannot be sustained and accordingly fails. J23 Coming to ground 2, which is premised on the trial court's finding, that the defence of the Statute of Frauds was not available to the appellant. The grievance here, as we understand it, is that, evidence on the Statute of Frauds, which was led by the appellant at trial without objection from the respondent, ought to have been considered by the learned trial judge. If this had been done, it could have afforded the appellant a defence, to the counter-claim, that the contract of sale, if any, was unenforceable through the courts of law, for failure to satisfy the basic requirements of a valid contract for the sale of land. This submission rests on evidence which was let in without objection and raises the defence under S. 4 of the Statute of Frauds. Notwithstanding that the said defence was not pleaded, counsel argued, that a point of law can still be raised at any stage of the proceedings. We find the real question raised in this ground is whether failure by a party to plead a statutory defence which requires to be specifically pleaded does not preclude the party from later, raising the same defence as a point of law. According to the learned authors of ODGERS ON CIVIL COURT ACTIONS 24TH Edition Sweet & Maxwell, . , , , J24 paragraphs 11.13- 11.12 at page 242-243, in order to enable a party, rely on a statutory defence such as those under the Limitation Act, such defence must be specifically pleaded. Generally, the reason for this requirement is that, in civil matters a claimant must give a fair notice of what case the opponent will meet at trial. Sufficient particulars must therefore be disclosed in advance and not at the trial itself with the result of denying the opponent an opportunity to respond and thus take them by surprise. The learned authors underscore this position under the heading on 'Special Defences' where it is stated as follows: "A party must in any pleading subsequent for example .. the expiry of a relevant plead specifically any matter period of limitation, fraud or any fact showing illegality- which he alleges makes any relevant claim or defence of the opposite party not maintainable; or (b) which if not specifically pleaded, might take the opposite party by surprise; .... " to a statement of claim We further bear in mind that, statutory defences merely justify or excuse the act complained of but are generally, not defences on the merits to a claim. They only preclude the claimant from employing the court mechanism to seek redress. In this regard the learned authors go on to stress that: "All matters justifying or excusing the act complained of must be specifically pleaded; so must all matters that go to show that the sued on is illegal or invalid ... And no evidence of such contract matters can as a general if they be not the trial expressly pleaded .."( boldfacing for emphasis supplied) rule, be given at . " J25 The requirement to specifically plead a statutOlY defence is further echoed by the Supreme Court Practice Rules, (White book) 1999 Edition VoLl Order 18/8/40 on which the trial judge relied, which states in mandatory terms that: " Statute of Frauds or S. 40 of -LPA 1925 (the Law of Property Act)- if the Defendant desires to rely on it." must be specially pleaded, However, unlike a statutory defence which requires to be specifically pleaded, pleading a point of law is discretionary. This is according to Order 18/11/ /1. According to this Order: "A party may by his pleading raise any point of law." Order 18/11/1 goes on to state that, a party is not precluded from raising a point of law at the trial, even though it was not pleaded. Thereafter, they may proceed to apply for hearing of the point of law as a preliminary issue pursuant to Order 33 rules 3 and 4 (2), with the result that, the court may dispose of the whole issue in controversy without the necessity of a trial and thus save time and costs. Order 14A may similarly be employed. In advancing his argument that the trial Judge ought to have considered the statutory defence under SA of the Statute of Frauds, learned counsel for the appellant, relied on our decision . " , J26 in the case of Admar1c Limited v Zambia Revenue Authority where we held that: 1. The purpose of pleadings is to ensure that in advance of trial, the issues in dispute between the parties are defined. 2. Order 18 Rule 8 of the Supreme Court Practice sets out those matters which must be specifically pleaded before they can be relied upon by a party in its defence. 3. A party may at the trial raise a point of law, even though it was not pleaded in his defence. We wish to observe that, the above quoted case restates the purpose of pleadings, which as earlier observed is to define issues in dispute. By so doing it is intended to give advance notice to the opponent ahead of trial. This ensures that the opponent has adequate time to respond and avoids taking them by surprise. In the said case, we further acknowledged the matters that must be specifically pleaded as outlined under Order 18 rule 8. In this regard, we can only note that, the defence under SA of the Statute of Frauds is one such defence that according to Order 18 rule 8 paragraph 40, is required to be specifically pleaded. We accordingly are unable to accept the proposition by learned counsel for the appellant suggesting that as long as evidence of a statutory defence is let in at trial without objection, the court is obliged to consider it. That proposition is clearly not supported by the authorities cited which categorically state that, the defence '. . J27 under SA of the Statute of Frauds must be specifically pleaded if it is to be relied upon at trial. Ground 2 of the appeal must equally fail. On the submissions raised in ground 3 of the appeal, that the trial judge erred in law and fact when she held that an oral contract of sale is enforceable at law. In advancing the argument on this ground, learned counsel for the appellant sought to rely on the High Court case of David Howes and Others vs Betty Butts Carbin and Others. Although not binding on this court, we also wish to observe that, the facts of the said case related to a written contract of sale, which the High Court found was defective in its contents. In the present case, the learned trial judge referred to the document the respondent had sought to rely on in evidence of the contract of sale with the appellant. She however found it insufficient, as a memorandum, to satisfy the requirements of S. 4 of the Statute of Frauds. The court found the only evidential value that could be attached to this document, was that it proved KlS, 000.00 was indeed paid by the respondent to the appellant. , , ~ J28 We must hasten to note however, that according to the record, this finding had no bearing in resolving the issue of .., whether or not there was a contract of sale entered into by the parties. The record shows, the final conclusion reached by the trial court was wholly premised on the testimony of the parties as given at the hearing of the matter, from which she found, there was an oral contract of sale. There was also oral evidence, that the K18, 000.00 was paid by the respondent not for purposes of positioning himself as first buyer in the sale of the property, as the appellant would have liked the court to believe; but was rather, the actual purchase price. The court further found, the appellant said he needed to dispose of the property in order to use the money to meet expenses related to his brother's funeral, as well as to pay the said deceased bills. Granted these facts, we wish to re- affirm that our decision in the case of Peter Militis vs Wilson Kafuko Chiwala (10) is still good law. We there upheld an oral contract for sale of land entered into by the parties. It is for those reasons we find ground 3 of the appeal suggesting that there cannot be an oral contract of sale of land, is also unsustainable. . . . ,.••. J30 paid on the respondent's behalf in Nakonde, in his defence to the respondent's counter-claim, but for reasons that were not disclosed, did not do so. On the evidence that was before her, showing that the respondent proved he had paid K7, 102.00 on the appellant's behalf. In the absence of any evidence that the appellant had refunded the said amount. The respondent did establish his claim that he was owed this amount. In the premises, the trial judge was entitled to infer, as she did, that this amount was due to the respondent and properly entered judgment in his favour in the said sum. Ground 4 of the appeal also fails. All the four grounds of appeal having failed, this appeal is hereby dismissed. Costs will follow the event and are to be taxed in default of agreement. ~~<N- DE: UTY CHIEF-J STICE /\ ~_____M-:-M alila SUPREME COURT JUDGE J. K. Kabuka SUPREME COURT JUDGE