Phillip Keith Simwelleba and Anor v Mutemwa Sililo (2018/HP/1071) [2022] ZMHC 56 (25 November 2022)

IN THE HIGH COURT FOR ZAMBIA 2018/HP/1071 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: AND PLAINTIFF 2ND PLAINTIFF MUTEMWA SILILO HENDRIX HYDEN BUBALA 1 ST DEFENDANT (T/A WATERSHED BUSINESS SYSTEMS) 2ND DEFENDANT BEFORE JUSTICE ELITA PHIR! MWIKISA FOR THE PLAINTIFF: MRS. G. SHYAKALIMA OF CHANDA CHIZU & ASSOCIATES FOR THE DEFENDANTS: MRS. K. M. CHILESHE WITH T. GAUS! OF SIKWANA MWEMBA & PARTNERS JUDGMENT Cases Referred To: 1. Zambia Railways Limited v Pauline S Mundia, Brian Sialumba Supreme Court Judgment No. 24 of 2008 2. Dominic Mulaisho v The Attorney General (2012) Z. R 551 3. Daniel Mwale v Njolomole Mtonga and Others SCZ Judgment No. 25 of 2015 4. Riverbed Limited v Wycliffe Kasuni Appeal No. 210/2019 5. Magic Carpet Travel and Tours v Zambia National Commercial Bank (1999) ZR 61 J1 6. African Milling Company Limited v Ch.ambala Sikazwe and Others CAZ Appeal No. 1 73/ 2019 7. Shearson Lehman Eros Inc and Others v Maclaine Watson & Co Ltd and Others (International Tin Council Inetrvening) (No.2) /1988] lALL ER 129 8. Wesley Mulungushi v Catherine Bwale Mizi Chomba (2004) ZR 96 9. Jane Mwenya and Josan Randee v Paul Kapinga (1998) ZR 10. Isililo Mzyece v Neptune Properties Limited (in liquidation) and Others 2011 I HPC/ 001 9 Legislation Referred To: 1. Section 4 (3) of the Limitation Act ( 1939) UK 2. The Intestate Succession Act Chapter 59 of the Laws of Zambia 3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia Other Works Referred To: 1. Halsbury's Laws of England, 4 th Edition, at paragraph 19 This action was commenced by way of writ of summons and statement of claim dated 19th J"l!-ne, 2018, as amended on 26th June, 2018. The plaintiffs' claims were that the 2 nd defendant, on behalf of the 1 s t defendant, advertised a 5-acre farm in Chilanga Lusaka, in the Zambia Daily Mail Newspaper dated 24th May, 2004. The plaintiffs narrated that they approached the 2 nd defendant to buy the said advertised farm and that the same was offered to them through an offer letter dated 25 th May, 2004. The plaintiffs pleaded J2 that on or about 27th May, 2004, they made payment amounting to Kl 7,500,000.00 (un-rebased) as full and final payment for the said piece of land. That the 1 st defendant even signed a declaration stating that the property belonged to the plaintiffs. It was pleaded further that the plaintiffs and the defendant also signed a contract of sale dated 27th May, 2004, after accepting the conditions in the offer letter. The Plaintiffs pleaded that they were then advised by te the 2 nd defendant to wait for the change of ownership of the land into their names. The plaintiffs stated that they moved onto the property and started developing it while waiting for the paper work from the defendants. The plaintiffs pleaded that since the defendants were taking long to complete the conveyance, the plaintiffs decided to place a caveat on the property through its then lawyers, Messrs Mulungushi Chambers, which caveat was registered on 8 th August, 2007 . The plaintiffs claimed that however, in or about 2007, one Dave Musisei Sililo, a brother to the 1 st defendant, unsuccessfully sued the plaintiffs under Cause No. 2007 /HP/ 1016 for the removal of the caveat. It was pleaded that in 2009, the plaintiffs saw some unknown people claiming to have bought some part of the plaintiff's property J3 .. and that the said unknown persons had certificates of title to the subdivided properties. That when a search was conducted at the Ministry of Lands, the plaintiffs discovered that Messrs Mulungushi Chambers had the caveat removed resulting in one Mainga Domity and Mainga Mwaka Simasiku acquiring a certificate of title to the lan.d. The plaintiffs pleaded that on or about 20th April, 2018, a demand letter was written to the 1st defendant to which the 1 st defendant did not respond. The plaintiffs stated that as a result, they suffered loss and inconvenience and claim: (i) Order for specific performance relating to the remaining extent of Stand Number 144 Chilanga Lusaka based on the contract of sale dated 27 th May, 2004, for 5 acres from the 1 i; t d efendant; (ii) Order for completion of conveyance transaction by the 1 st defendant in favour of the plaintiffs; (iii) Further or in the alternative payment for part of the property sold which reduced the 5 acre advertised, negotiated and paid for; (iv) Damages for inconvenience for breach of contract from the defendants; J4 (v) Damages for loss of use of part of the land which was cut from the 5 acres paid for; (vi) Interest on money found due from the defendants; (vii) Costs; and (viii) Any further relief the court may deem fit from the defendants. The 1st defendant filed his memorandum of appearance and defence on 16th July, 2018. It was pleaded therein that he approached a friend to help market the sale of his 2-acre plot in Chilanga a nd that he was taken to the 2 nd defendant who turned out to instead have a client looking for a 5-acre plot in Chilanga. The 1 s t defendant a verred that it was not possible for him to sell more than 2 acres at the time. That if there was any advert for the sale of a 5-acre plot in Chilanga as alleged, the same may have been placed by the 2 nd d efendant for another client and that the plaintiffs will be put to strict proof thereof. The 1 st defendant averred that the parties to the disputed agreement were introduced to each other by the 2 nd defendant with the view of increasing the size from the available 2 acres to at least 4 acres or more once issues surrounding the s ettlement of the estate were concluded by the administrators. JS The 1 s L defendant pleaded that the plaintiffs offered to pay and in fact paid a total of K 17,500,000.00 (un-rebased) to show serious intent to purchase any extra land that would be available on the property in issue. That the parties prepared all the contractual documents incorporating interests of both parties. That is to say the plaintiffs agreed with the 1 st defendant, that the issue of the size of the property was not to be included in the agreement "9 pending the final settlement of the estate by the administrators. In turn, the 1 st defendant was to clearly declare that he ceased to have any claim to the land, namely, the 2 acres, that was available to the plaintiff at the time. It was pleaded that the parties incorporated the agreed terms on 27 th May, 2004, both in the contract of sale and the declaration note. The 1 s t defendant averred that before the parties could agree on the final size to be sold, the 1 st plaintiff started encroaching on the grave site that was reserved to protect the dignity of the deceased owner of Stand No. 144. It was pleaded that on or about April, 2005, the plaintiffs were approached by the deceased's eldest brother, one Ken Sililo, asking why the grave yard was tempered with. The 1st defendant stated that he was informed that the plaintiffs claimed that he (the 1 st defendant) had sold them the J6 entire plot. That the family had a m eeting and they were reminded as administrators that the Court matter surrounding the portion of land being claimed by the plaintiffs had not been settled yet. It was pleaded that in view of the terms of the order of injunction under Cause No. 1997 /HP/772 , it was apparent that the plaintiffs would not be considered to purchase any additional land on Stand No. 144. • Tha t the 1 s t d efendant shall aver at trial that he obtained the Sta te's Consent to Assign the 2 acres that was contracted for on 2 7 t h May, 2 004 , but that the plaintiffs refused and opted to take th e m atter to Court. The 2 nd d efen dan t filed his memorandum of appearance, defence and counter -claim on 4 th February, 2020, which was amended on 1 s l June , 2 0 20 . It was averred therein that the 2 nd defendant authored the letter of offer dated 25 t h May, 2004, but that the same was r ej ected by the 1 s t d efendant and the advocates who were handling the contractual documents on the basis that Stand 144 Chilanga was not an intestate property at contr act signing and that therefore the letter of offer ought to have reflected the correct capa cities of the p er s on s elling the land. That it was also r ej ected because the la nd in question was in fact co-owned by three people J7 which included the 1 s t defendant who insisted was only selling a portion of his share as joint owner. A further ground for the rejection was said to be that one In'utu Sililo, who was co-owner of Stand 144 was not to be a party to the contract in dispute because she had nothing to do with the selling but was willing to witness the same on condition that the grave yard would not be included and that the size of the land sold would only be determined after • the subdivisions had been agreed upon by the co-owners. The 2 nd defendant averred that the implication of the latter was that the letter of offer and its terms were annulled before the parties signed the contract of sale and that the plaintiffs herein were informed of the new terms and conditions of the sale. It was ple aded that after the plaintiffs and 1 st defendant agreed on the new terms, a contract was drawn by the lawyers which both the plaintiffs and 1 s t defendant consented to. The 2 nd defendant pleaded that he has come to learn that the plaintiffs' claim was for subdivisions ''F" and "G" of Stand 144, which plots had been assigned to persons not party to these proceedings rendering the entire action unsustainable at law. The 2 nd defendant pleaded that the terms and conditions in the contractual documents on record revealed that the parties varied J8 the terms of the offer letter. That the offer letter in issue was dated 25th May, 2004, and its terms varied on 27th May, 2004, yet the action against the 2 nd defendant was commenced on 28 t h June, 2018, over 14 years since the cause of action accrued. It was further averred that the plaintiffs have failed to join or bring an action against the title holders of the subdivisions in question and that 12 years has also lapsed from the date of title. The 2 nd -• defendant stated that the court, in the circumstances, and in terms of Section 4(3) of the Limitation Act, 1939, has no jurisdiction to issue any meaningful order against third parties because the cause of action against the registered owners of the said subdivisions and the claims on the offer letter in issue are both statute barred. It was pleaded that the action is incompetently before the court ·- because it sought to annul certificates of title not belonging to the defendants. That the equitable doctrine of laches and the principle of acquiescence renders a claim for specific performance unsustainable and incompetent, and that therefore the matter should be dismissed in its entirety with costs to the defendants as it lacks merit. J9 When the matter came up for trial on 3 rd June, 2021, PW 1, Phillip Keith Simwelleba, the 1 st plaintiff herein, testified that on 24th May, 2004, he saw an advertisement in the Zambia Daily Mail relating to 5 acres of land as shown at page 1 of the plaintiffs' bundle of documents. PWl stated that he went to see the people who had advertised the land and that he was taken to view it and was shown the boundaries thereof. That when they returned from viewing the (• land, the defendants prepared an offer letter dated 25th May, 2004, and that he was informed that the purchase price was Kl 7,500,000.00 (un-rebased). PWl stated that he proceeded to pay K18, 350,000.00 (un-rebased) cash, which amount included agent fees. PW 1 testified that he paid the said amount to the 1 st defendant in the presence of the agents who had advertised the land. That h e was then told that the process of acquiring the certificate of title to the land would commence. PW 1 told the court that h e was given a contract of sale which contract both parties signed as shown on record. He stated that he was not shown any title of the extent of the remaining land. PW 1 also told the court that there was also a declaration signed by both parties stating that from 27th May, 2004, the land was no longer belonging to the 1 s t defendant but to the plaintiff. PW 1 testified no that he was told that a certificate of title would be issued but that to date it has not been issued . PW 1 gave evidence that the land in issue is still available and that he has occupied the same for 1 7 years as he has been farming thereon since 2004-2005 season to date. PW 1 testified that the record shows a certificate of title in the name of the 1 st defendant which title was issued on 4 th June, 2004, as per land register on • record. PWl told the court that the description in the contract of sale he signed and that of the said certificate of title is the same. PW 1 asked the court to transfer ownership of the five acres he bought from the defendant and that he be issued a certificate of title in relation to the said land. Under cross-examination, PWl testified that when he met the 2nd defendant on 24 th May, 2004 , the 1s t defendant was not present. Similarly, tha t when he visited the property on 25th May, 2004, the 1 s t defendant was not present. PW 1 testified that the beacons were shown to him and that the property was 5 acres. PW 1 conceded that he did not conduct a search at the Ministry of Lands. PW 1 told the court that he received the offer letter after visiting the property and that the signature on the offer letter was the 2nd Jll d efenda nts . PWl testified furth er that on 2 6 th May, 2004 , h e m et the 1 st d efendant and the 1 st defendant's sister, one In'utu. PWl stated that he did not make any inquiries about the status of the property and that the 1 st defendant did not state that h e was only selling 2 acres of the property. When referred to the contract of sale on record, PW 1 testified that none of the pages state that the property was 5 acres and that he signed the contract without m ention of the said 5 acres. When asked whether h e would be happy to receive a refund of a portion of the purchase price, PWl testified that he would not be. When referred to his claims in the statement of claim, PW 1 stated that h e cann ot accept an alternative payment. In further cross-examination, PWl testified that he was not aware th a t a t the time h e was signing the contract of sale, the certificate of title wa s in t h e name of the 1 st defendant's late father. In r e-examination, PW 1 explained that he did not inquire on the status of the land because h e had viewed the extent of the land. He further told the court that the 1 st defendant sold the land in his personal capacity and that he did not tell him that he was s elling it a s administrator. PW 1 told the court that he did not know why th e 5 a cr es was not indicated in the contract of sale although it J12 was mentioned in the advert. PWl stated that he did not know that the contract of sale was prepared by the lawyers. On the other hand, the defence called DW 1, the 1 st defendant herein, as its first witness. DWl narrated that sometime in 2004, he decided to sell a piece of land in extent of 2 acres that was given to him by the administrator of the estate of his late father. That the name of the property was Plot No. 144, and 2 acres in size. • DW 1 testified that he engaged the 2 nd defendant herein to engage a prospective buyer for the said land. That when the buyer was found, h e went to meet him but that the said buyer was looking for 5 acres as opposed to 2 acres. DW 1 told the court that he explained to the client that only two acres was available. DWl gave evidence that the said client and the agent agreed that the client would buy the two acres on condition that additional land was e going to be provided by the administrators after the estate had been settled. He added that after the said discussion, a contract as well as a declaration were drawn up by the lawyers. DW 1 testified that it was agreed that the size of the land should not be mentioned as additional land would be made available to the plaintiff. That both DWl and his sister, In'utu signed the contract. DWl also J13 testified that h e signed the declaration committing him to the terms therein. It was DWl 's testimony that after payment of the money, the plaintiff took possession of the land and started building. That the plaintiff however started tempering with the family graveyard as well as DWl 's late father 's tombstone. DWl testified that it was made clear that the grave yard was not for sale. That the family got • concerned and decided not to release any additional land to the plaintiffs. DW 1 stated that he explained that no additional land would be given to the plaintiffs and that he would refund the monies paid. DW 1 testified that h e acquired title in his name so as to transfer it to the plaintiffs but th at the plaintiffs refused insisting that they had bought 5 acres instead of two. DWl testified that he was willing to compensate the plaintiff for the additional land he committed to find for them as his hands were tied because the remaining property was in the hands of the family . Under cross-examination, DW 1 testified that the 2 nd defendant was his agent. DW 1 admitted that the offer letter on record stated that the property was 5 acres. DWl testified that there was no oth er offer letter than the said offer letter. He also stated that he Jl4 did not instruct the 2nd defendant to write the offer letter. DWl admitted that the plaintiffs paid K 17,500,000.00 (un-rebased) but denied that they did not pay the said money in accordance with the off er letter. DW 1 testified that he was selling as a beneficiary of the estate of his late father. DW 1 told the court that at the time the title was transferred to the 1 st defendant, Namakau Sililo and Sililo In'utu, he had already sold his portion of land. DW 1 admitted that he had earlier testified that the land was given to him by way of deed of gift. DWl told the court that he was given 5 acres of land by way of deed of gift. DWl conceded that by that time he had already sold the land to the plaintiffs. DW 1 also admitted that he was given 5.2 acres of land. DWl stated that • although he had excess land and had promised to sell the same to the plaintiffs, he could not because he was still attending to other subdivisions as the land was subdivided. DW 1 conceded that acreage was not included in the contract and therefore that he could not prove that it was neither 5 acres nor 2 acres he was selling. DWl told the court that the Kl 7,500,000 paid by the plaintiffs was for 2 acres and additional land. He conceded that he did not put it JlS in writing to the plaintiffs that he was only selling two acres. DWl testified that he was aware that the plaintiffs wanted 5 acres of land. DWl stated that the land register, at page 21 of the plaintiffs' bundle of documents at entry No. 14, shows that he sold land to one Shabolyo Sheeta Shandolo and Mwansa Priscilla in 2007. DWl testified that the two mentioned above bought the land earlier and • were just waiting for title deeds. DW 1 explained that there were many buyers who were waiting for subdivisions to be done and that when title came out, he then started transferring the land until h e got to the remaining extent and that was where the plaintiffs came in. In re-examination, DW 1 explained that he instructed the 2 nd defendants to find a buyer and not to sell the property. That he did not instruct them to issue an offer letter and that he received the offer letter at the same time as the plaintiffs. DW3, Hendrix Hyden Bubala, testified that he was an estate agent and that in 2004, he ran some adverts for the sale of properties to which the 1 st plaintiff responded. That prior to that, the 1 s t defendant gave the 2 nd defendant properties to sell on his behalf. J16 DW3 told the court that h e witness ed the signing of the contract of sale but that h e was not privy to the extent of the land being sold and the price. In relation to the offer letter, DW3 testified that the same was not on anyone's authority but was standard practice. DW3 stated that he did not know the size that the plaintiffs were buying as it was never discussed in his presence. DWl also testified that the ~• property subjec t of the proceedings was not on the advert produced at page 1 of the plaintiffs' bundle of documents. Under cross-examination, DW3 testified that the plaintiffs were interested in the 5 acr e plots in Chilanga that he advertised. That h e got a uthority from the 1 s t defendant to sell between 1-5 acres since the said 1 st d efenda nt had 8 hectares. DW 1 testified that he did not h ave authority to write the offer letter and that he wrote the said offer letter to the plaintiffs based on the mandate given to him. DW 1 stated that the 1 st defendant gave him mandate to find a client for the plot. In re-examination DW3 testified that he described different properties that were in Chilanga for the plaintiffs and that after describing them, the plaintiffs chose the 1 s t defendants one which was more suitable for them. J17 Further, DW3 stated that he prepared the off er letter b ased on the discussions he had had with the plaintiffs and that it was standard practice. I have noted the submissions from both Counsel on record. I have carefully considered the evidence on record as well as the submissions by Counsel h erein. In the plaintiffs' submissions, Counsel submitted that the Court herein n eeds to determine three legal issues, namely; what was the actual size of lan.d purchased by the plaintiffs from the 1 st d efendant; can extrinsic evidence be admissible to determine the size purchased by the plaintiffs under the contract of sale dated 27 th May, 2004, and is the plaintiff entitled to specific p erformance? The old adage is true that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable. I am fortified by the case of Zambia Railways Limited v Pauline S Mundia, Brian Sialumba Supreme Court Judgment No. 24 of 2008 1 . J18 I will briefly tackle the issue raised in the 2 nd d efendant's defence that the matter herein was statute barred. Section 4 (3) of the Limitation Act ( 1939) UK provides: "No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person .... " In the case of Dominic Mulaisho v The Attorney General (2012) (9 Z. R 551 2 the Court stated that: "The statutory period begins to run immediately on the accrual of the action. This is when the Plaintifjs right to institute a suit arises. If he brings the suit after the statutory period has run, the defendant may plead the statute of limitation as a defence." The above principle was r e-affirme d in the case of Daniel Mwale v Njolomole Mtonga and Others SCZ Judgment No. 25 of 20153 wherein th e Suprem e Court stated at J30 that: "In our understanding, time begins to run when there is a person who can sue and another who can be sued, when all facts have happened which are material to be proved to entitle the plaintiff succeed." It is clea r from the above authority that the sta tutory period for an action begins to run immediately on the accrual of the cause of action and that if the same is not brought within the statutory period, the defendant can plead the statute of limitation as a J19 defence. In paragraph 12 of the statement of claim the plaintiffs state that because the defendants were taking long in completing the conveyance process, the plaintiffs decided to place a caveat on the property in question. That the caveat was registered on 8°1 August, 2007. It was further averred in paragraph 13 of the statement of claim that in or about 2007, Davie Musisei Sililo, the brother to the 1 st defendant unsuccessfully sued the plaintiffs - under cause number 2007 /HP/ 1016 for the ~emoval of the caveat. From the above it is clear that the cause of action arose in 2007, when the plaintiffs were sued after placing a caveat on the property 1n issu e . In paragraph 14 of the amended statement of claim dated 26th June, 2018, the plaintiffs averred that in 2009, they saw some unknown people claiming to have bought some part of the - plain tiff's property and that the said unknown persons had a copy of the certificate of title of a subdivision of the property. At paragraph 15, it was pleaded that the plaintiffs decided to conduct a search at the Ministry of Lands which search revealed that the caveat was removed. In light of the above, I hold the view that the cause of action h erein arose in 2 007 when the plaintiffs were sued by the 1 st defendant's J20 brother pertaining to the same property after plaintiffs placed a caveat on the same. This action was commenced in 2018; that is to say 11 years after the cause of action arose. It is trite that matters dealing with land have a time frame of 12 years within which to bring an action. I therefore find that the plaintiffs herein were still within the time frame stipulated in the statute of limitation when they commenced this action. I also note that Counsel for the defendants 1n the written submissions stated that there are inaccuracies depicted in the lands register produced in the plaintiffs bundle of documents. A p eru sal of the Lands Register in the plaintiff's bundle of documents indeed revealed that the entries differ from the ones m the defendants' bundle of documents. However, contrary to the defendants' Counsel's submissions, the Lands Register as ~• exhibited by the pla intiffs does show when the caveat was withdrawn. This appears at entry No. 18 in the plaintiffs bundle of documents. The date of withdrawal of the caveat is showing as 28th April, 2008, which date corresponds with that shown at entry No. 12 in the Lands Register produced in the defendants' bundle of documents. Both Land Registers produced show that the date of J21 document and registration are 28 th April, 2008, and 13th May, 2008, respectively. I therefore find that although the entry numbers are different, the date of documents and date of registration in both documents remain the same. I find that the difference in the two land registers is that the one produced by the plaintiffs has been placed in chronological order while the one produced by the defendants has •• not. I hold the view that this explains the change in the entry numbers. To the first legal question raised by the plaintiffs, namely, what was the a ctual size of the land purchased by the plaintiffs from the 1 s t defendant, Counsel for the defendants in his written submissions contended that at the time the agreement was entered into on 27 th May, 2004, the property in issue belonged to the deceased, the said Mukwalikuli Sililo and that the 1 st defendant was merely a beneficial owner. He submitted further that in any case, even if the 2 nd defendant made the offer, the precise location has never been agreed upon nor does the cause of action herein state so. The plaintiffs on the other hand, filed written submissions. It was submitted that although the size of the land was not mentioned in J22 the contract of sale and the declaration, the size was determined by the offer letter and the advert which clearly show that the size of the land sold to the plaintiffs was 5 acres and not 2 acres, and which evidence was supported by PW 1, DW 1 and DW3. In relation to Counsel for the defendants' contention that at the time the agreement was being entered into on 27th May, 2004, the property in issue belonged to the deceased and that the 1 st (. defendant was merely a beneficial owner, I note that the record shows that letters of administration of the intestate of plot 144 Simuyaka Chilanga and plot 16 Ngulube Road, Woodlands, Lusa ka were granted to the 1 s t defendant, one In'utu Sililo and one Namakau Sililo on 4 th July, 1997. Section 24(1) of the Intestate Succession Act Chapter 59 of the Laws of Zambia provides as follows: "Subject to any limitations and exceptions contained in a grant of letters of administration the grant entitles the administrator to all rights belonging to the deceased as if the administration had been granted at the letters of moment after his death except administration shall not render valid any intermediate acts of the administrator tending to the dimunition or damage of an intestate's estate." that Since the administrators were granted letters of administration on 4 rh July, 1997, the said grant entitled the administrators to all J23 rights that belonged to the deceased. The 1 st defendant during cross-examination testified that the administrators, through a deed of gift, granted him 5.0280 h ectares of land in r elation to the property in issue. According to the law, the administrators wer e entitled to all the rights that belonged to the deceased in r ela tion to the property in issue at the time the plaintiffs and the 1 st defendant were executing the contra ct of sale. • Section 19 of the Intestate Succession Act also provides for the powers of th e a dministrator. It provides that: 19. ( 1) "The duties and powers of an administrator shall be (b ) t o effect distribution o f the estate in accordance with the righ ts of the pe rsons interested in the estate under this Act;" Section 20 of the Intestate Succession Act goes on to provide that: "Where there are several a dministrators, t heir powers may, in t he absence of any direction to the cont rary contained in the letters of administration, be exercised by the majority of them." Ther e was no dispute as to the administrators granting the 5.0280 h ectares of land to the 1 s t defenda nt a t any point during the proceedings. In fact, In'utu Sililo one of the a dministra tors was a witness to both the contract of s a le and the declara tion h er ein which shows that the majority of the administrators exer cised their J24 power in the sale in issue. It is in light of the authorities cited that the argument by Counsel fails. The question I ask myself is, can extrinsic evidence be admissible to determine the size of the property purchased by the plaintiffs under the contract of sale dated 27th May, 2004? It is common cause that the contract of sale did not expressly state the size of the land the plain tiff was purchasing. The description of the • property in the said contract of sale was drafted inter alia as follows: "ALL that piece of land in extent more or less being the rema1n1ng of Plot No. 144 situate in Simuyaka Village Chilanga in the Lusaka Province of the Republic of Zambia .... " In the case of Riverbed Limited v Wycliffe Kasuni Appeal No. 210/20194 , the Court of Appeal stated as follows: "As a rgued by the Appellant, it is trite law that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not generally admissible to add to, vary, subtract from or contradict the terms of the written contract. By way of exception to the above rule, ext rinsic evidence may be admitted to show that the written instrument was not intended to express the whole agreement." It is clear from the above authority that extrinsic evidence 1s generally inadmissible and that there are exceptions to the rule. A perusal of the plaintiffs' bundle of documents revealed that there was an advertisement dated 24th May, 2004, in which a 5-acre J25 property in Chilanga was advertised. I note that the 1 s t d efendant, in his defence , averred that if there was any such advert for the sale of a 5 acre plot in Chilanga, the same may have been placed in the newspapers by the 2 11d defendant for some other client as the 1 s t defendant only had two acres to sell. Whether or not the advert included the 1 s t defendant's property is neither here nor there and I will give my reasons below. ,. The evidence on record shows that DW 1 testified that he knew that the plaintiffs wanted to purchase a 5-acre plot. Further, according to the land registers on record, as at 21 st May, 2004, a few days b efore t h e contract of sale was executed on 27th May, 2004, there was a total of 8.4260 h ectares in relation to Lot Chila/ 144 which suggests tha t th ere wa s 5 a cres of land available for the plaintiffs to purch ase. DW3 , the defendants own witness, also testified during cross-examina tion that the 1 s t defendant, when giving him instructions, sta ted that h e h a d 8 h ectors of land and that the 2 11d defendant could s ell between 1 to 5 acres of it. DW 1 also conceded during cross-examina tion tha t the land assigned to him by the a dminis trators wa s 5.020 h ectares through a deed of gift. He however qualified this and stated that h e did not give the additional la nd to the plaintiff b ecause the whole 5 acr es h a d a lready b een J26 • e subdivided and sold to different people. During re-examination, DW 1 explained that entry No. 8 in the Land Register shows that the land was sold to one Kamangala Edwin and after that sale, the remaining area was 5.028 hectares. He said that a caveat was then placed by the plaintiffs on the property as shown by entry No.12 and that at entry No. 18 of the land register, the caveat was removed. It was his evidence that he then went ahead to sell to other people and that the plaintiffs were the last people to buy the 2 acres in 2 004. In light of t h e evidence above, I hold the view that at the tin1e the plaintiffs and 1 st defendant were executing the contract of sale, there was 5 acres a vaila ble to the plaintiffs to purchase contrary to the evidence given by OW 1 that the property had already been subdivided a nd sold to different people. I say this because it is clear that according to both land registers on record, the other two administra tors, In 'utu Sililo and Namakau Sililo through a deed of gift dated 23 rd May, 2007, and registered on 23 rd July, 2007, transferred 5.0280 hectares of land to the 1 s t defendant herein. The 1 s t defendant was then issued a certificate of title to the said property on 2 3 rd July, 2007. This means by July, 2007, about three years after the contract of sale was executed, there was still 5.0280 J27 .. hectares available to the 1 st defendant herein. The record shows that the plaintiffs herein then placed a caveat on the said property in extent 5.0280 on 24th July, 2007, which caveat was registered on 8th August, 2007. The said caveat was only withdrawn on 28th April, 2008, and the date of registration of the said withdrawal was 13th May, 2008. This is evidenced at page 22 of the plaintiffs' bundle of documents at entry No. 18 and page 4 of the defendants' bundle of documents at entry No. 12 respectively. A further scrutiny of the record reveals that there was an assignment of subdivision 'F' between the 1 s t defendant, one Shabolyo Seeta Shandolo and one Mwansa Priscilla on 4 th October, 2007. In addition, there was another assignment in relation to subdivision H between the 1 st defendant and one Mwiinga Cremmy, Mwachande Susanna and Sililo Davie also dated 4 th e October, 2007. There was ·a.1s0 an application for separate certificate of title by the 1 s t d efendant and a certificate of title was issued to the 1s t defendant on the same date, of 4 th October, 2007. It is evident that all these transactions were happening before the caveat was withdrawn. J28 Section 79 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia provides for the effect of a caveat against other dealings. It provides as follows: "So long as a caveat in Form 8 remains in force, the Registrar shall not make any entry on the Register having the effect of charging or transferring or otherwise affecting the estate or interest protected by such caveat: Provided that nothing herein shall prevent the completion of the registration of an instrument which has been accepted for registration before the receipt of the caveat." Furthermore, in the case of Magic Carpet Travel and Tours v Zambia National Commercial Bank ( 1999) ZR 61 5 , the Court stated as follows: e "With reg ard to the second issue, the law is very clear. Any person having an interest in land, it could be by way of an unregistered mortgage or purchase, can place a caveat against such land. The placing of a caveat effectively means that no dealings in such land can be permitted after the registration of a caveat. In essence, a caveat is an instrument that cautions or alerts other interested parties about the caveator's interest in the land thereby protecting the caveator against any further dealings in the land by other people." It is clear from the authorities above that it was irregular for the dealings highlighted above to take place when there was a caveat in place. By the time the caveat was registered on 8 th August, 2007, the Land Register shows that the land was in extent of 5,028 hectares. J29 This means the deed of gift, assignments and certificates of title registered on 4th October, 2007, were all registered while the caveat was still in place as it was only withdrawn on 13th May, 2008. The said registrations were therefore irregularly done. DW 1 argued that he had already sold the land to other people before the plaintiffs, but the evidence suggests otherwise. I accordingly find that all land transactions done while the caveat was still registered were void. There is also a dispute on the issuance of the offer letter to the plaintiffs by the 2 nd defendant. The pt defendant argued that he did not authorise the 2 nd defendant to issue an offer letter in relation to the land in question. DWl, the 1st defendant herein, gave evidence during examination in chief and re-examination that h e instructed his agents, the 2 nd defendant, to find a buyer for him and not to sell the property or issue an offer letter. DW 1 testified e that when h e met the purchaser he explained that he only had 2 acres available for sell although the buyer was looking for 5 acres. DWl however, conceded during cross-examination that he did not put it in writing that he was only selling 2 acres to the plaintiffs. DW 1 also conceded that the 2 nd defendant was his agent and that there was no other offer letter other than the one on record. J30 The record shows that there was an offer letter for sale of subdivision of plot No. 144 Chilanga dated 25th May, 2004. The said offer letter was on the 2nd defendant's letter head. I note that DWl gave evidence that the 2nd defendant was his agent but that he did not authorise them to sell the property or issue an offer letter on his behalf. In the case of African Milling Company Limited v Chambala Sikazwe and Others CAZ Appeal No. 173/20196 , at page J16 to J 1 7 the Court of Appeal stated that: "It is trite that an agency relationship is created either expressly or by implication. The learned authors of Halsbury's Laws of England, 4 th Edition, state, at paragraph 19, that; "The relation of agency is created by express or implied agreement of principal and agent ... Implied agency arises from the conduct or situation of the parties." The Court of Appeal went further and made reference to the learned authors of Halsbury's Laws of England at paragraph 29 e wherein they state that: "Agency by estoppel arises where one person has so acted as to lead another to believe that he has authorized a third person to act on his behalf, and that other in such belief enters into transactions with the third person within the scope of such ostensible authority. In this case the first-mentioned person is estopped from denying the fact of the third person's agency under the general law of estoppel, and it is immaterial whether the ostensible agent had no authority whatever in fact. The principal cannot set up a private limitation upon the J31 agent's actual authority so as to reduce the ostensible authority, for, so far as third persons are concerned, t he ostensible authority is the sole test of his liability." In addition, the Court of Appeal in the srune case relied on the case of Shearson Lehman Bros Inc and Others v Maclaine Watson & Co Ltd and Others (International Tin Council lnetrvening) (No.2) [1988] lALL ER 129 7 where the House of Lords stated that: "The issue of ostensible authority normally falls for decision where one party as agent has purported to undertake some obligation on behalf of another party as principal. In those circumstances the party seeking to enforce the obligation in reliance on the agent's ostensible authority will need to show that the principal held the agent out as having the necessary authority so as to create an estoppe l." I hold the view that there is evidence on record pointing to the fact that the 2 nd defendant was the 1st defendant's agent and that the 1 st defenda nt h erein so acted as to lead the plaintiffs to believe that he authorised the 2 nd defendant to act on his behalf. I say this firstly, beca use DWl himself testified that the 2 nd defendant was its agent. Secondly, b ecause the 2 nd defendant placed advertisements in the newspaper which advertisements the plaintiffs herein responded to. Had it not been for the said advertisements, I am of the considered view that the plaintiffs herein would not have come into contact with the 1 st d efendant. There was evidence to the effect that, after the plaintiffs saw the J32 e advertisements, they contacted the 2 nd defendant who took them to the property for viewing purposes. When the plaintiffs indicated that they were happy with the 1 st defendant's property, an offer was made to the plaintiffs by the 2nd defendant, and subsequently a contract of sale was executed. I note that DW 1 testified that he did not authorise the 2nd defendant to draft an offer letter and that he saw the offer letter the same day he met the plaintiffs. However, the offer letter on record was copied to the 1 st .defendant and the other two administrators. There is evidence on record showing that there was no other offer letter that was drafted besides the one on record. Since t he 1 st defendant testified that he saw the offer letter when h e wa s m eeting the plaintiffs, I hold the view that if he was not satisfied with its contents, h e would have asked his agents to re-draft the offer letter to reflect the intention of the 1 st defendant. But this was not the case. The offer letter sta ted inter alia as follows: "We are pleased to offer you on behalf of the landlord/vendor the above mentioned property that is being sold at seventeen million five hundred thousand Kwacha (Kl 7,500,000.00) (unirebased) o nly. The property has the following details: -five acres -con crete slab The above offer has the following terms and conditions: J33 a. That full purchase price be paid within the accompanying terms and conditions b. That the possession takes place upon full payment of the " pure ase price .... h . It is not in dispute that the plaintiffs herein paid the Kl 7,500,000.00. This suggests to me that the plaintiffs accepted the offer in terms of contract of offer and acceptance, thereby the parties entering into a binding contract. In fact, the contract of sale dated 27th May, 2004, two days after the offer letter was given to the plaintiffs, shows that the consideration for the property was at Kl 7,500,000.00 which price corresponds with that in the offer letter. Therefore , although the contract of sale was not clear with regards the extent of the land being sold, I hold the view that it was in relation to the 5 acres mentioned in the said offer letter from the 1 st defendant h erein. The 1 st defendant actually testified that he e knew that the plaintiffs were interested in purchasing a five-acre plot from the beginning. I note that DWl testified that he was only offering two acres of land, there is however no evidence on record to substantiate that claim. In light of the above, I am of the considered view that the plaintiffs herein are entitled to five acres of the land in question and that extrinsic evidence in this case is admissible. J34 The question that follows is whether or not the plaintiff is entitled to specific performance. In the case of Wesley Mulungushi v Catherine Bwale Mizi Chomba (2004) ZR 968 , the Supreme Court stated at page 97 as follows : "The court will decree specific performance only if it will do more perfect and complete justice than the award of damages." In the case of Jane Mwenya and Josan Randee v Paul Kapinga ( 1998} ZR 129 , the Supreme Court stated at page 17 that: law takes the view that damages cannot "The adequately compensate a party for breach of contract for the sale of an interest in a particular piece of land or of a particular house however ordinary." Furthermore , in the High Court case of Isililo Mzyece v Neptune Properties Limited (in liquidation) and Others 2011/HPC/0019 10 the court cited Chitty on Contracts as follows: e "The instances where specific performance will be granted have been stated by Chitty on Contracts-General Principles, 13th edition a t page 1718 as follows: "The jurisdiction to order specific performance is based on the existence of a valid, enforceable contract ... it will not be ordered if the contract suffers from some defect, such as failure to comply with formal requirements or mistake or illegality, which makes and unenforceable." contract invalid the This therefore means that for one to successfully invoke the remedy of specific performance, he must demonstrate that he J35 ; • entered into a legally binding contract with the person against whom he seeks the remedy." A perusal of the claims in the pleadings shows that the plaintiffs herein are claiming an order for specific performance relating to the remaining extent of Stand Number 144 Chilanga, Lusaka, based on the contract of sale dated 27th May, 2004 for 5 acres from the 1st defendant. I have already found that the plaintiffs were entitled to 5 acres of land. I also find that the plaintiffs have demonstrated that they entered into a legally binding contract with the 1 st defendant. PW l 's evidence on record shows that the property is still available as he has been farming thereon since 2004-2005 farming season to date. This evidence was not rebutted by the defendants under cross examination. I accordingly grant the order for specific performance relating to e the remaining extent of stand number 144, Chilanga, Lusaka, based on the contract sale dated 27 th May, 2004, for 5 acres from the 1 st defendant; I further order for completion of conveyance transaction by the 1 st d efendant in favour of the plaintiffs; Further or in the alternative payment for part of the property sold which reduced the 5 acre advertised, negotiated and paid for. J36 I ·1 • I will however, not award damages to the plaintiffs because they have not proved to this court that they are entitled to damages because they were negligent in not carrying out a due diligence exercise at Ministry of Lands to find out if there were any encumbrances on the property in question and further their failure to inspect the Title Deed of the deceased owner to ensure that they were entering into a valid transaction devoid of any encumbrances - as well as being sure of the size of property in hectares, was also quite negligent on their part. The 1 st plaintiff told the court under examina tion in chief that he was not shown any title deed and yet proceeded to d eposit the money into the 1 st defendant's Account after being shown the property. The plaintiffs therefore slept on their rights a s ignorance of the law is no defence. The plaintiffs have however , proved their case on a balance of probabilities. The plaintiffs partially succeed in their claims as aforementioned. I award costs to the plaintiff's to be taxed in default of agreement. Leave to appeal is granted. Dated at Lusaka the ................. day of ..... : ..... :: .... :: ... , 2022 J . / 6 V &i,rv'J/~ f) ~ <ih ·cx. S . t~ ,, / , ( );_ J ( \ f\ (!LL,L \../'L, L •...•••.•.•..................... ELITA P. MWIK!SA HIGH COURT JUDGE J37