Propark Property Development Limited v Grandview Properties Limited (2022/HPC/0011) [2025] ZMHC 51 (22 July 2025)

• IN THE HIGH COURT OF ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2022/HPC/0011 BETWEEN: AND PLAINTIFF ' l DEFENDANT j Delivered in Open Court before the Honourable Mrs. Justice K. E. Mw'enda-Zimba on the 22n d day of July, 2025. For the Plaintiff . • For the Defendant : Mr. Z. Sampa, Mr. A. Sakala and Mr. C. Chiluba of Simeza Sangwa and Associates Mr. L. Phiri, Mr. K. Nkunta and Mr. W. Chisonga of August Hill and Associates JUDGMENT Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. • Road Transport and Safety Agency v. Zindaba Sako. Appeal No. 84 of 2023. Friday Mwamba v. Sylvester Nthenge and Others (2013) l ZR 257. Colgate Palmolive Zambia (InckJ v. Abel Shemu Chuka and Others. Appeal No. 81 of 2005 . Banda v. The People. SCZ Appeal No. 35 o,(2020. Kalusha Bwalya v. Chardore Properties and Ian Chamunora, Nyalungwe Halluperi (2015) 2 ZR 100. Holmes v. Buildwell Construction Limited (1973) ZR 97. Sum Amos Mumba v. Zambia Fisheries and Fish Marketing Corporation Limited (1980) ZR 135. Fi.nance Bank Zambia Limited and Others v. Simataa Simataa, SCZ Judgment No. 6 of 2017 . • Robinson v. Harman (1848} 1 EXCH 850. Hadley v. Baxendale (1954} 9 EXCH 341. Kayope v. Attorney-General (2011} 2 ZR 424. Samarenko v. Dawn Hill House Limited (2012} 2 ALL ER 476. B. Scriven Bros and Co. v. Hindley and Co (1913) 3 KB 564. Crane v. Hegeman-Harris Co. Inck (1939) l ALL ER 662. Khalid Mohammed v. Attorney-General, (1982} ZR 49. Gillian Kasempa Mutinta v. New Future Fi.nancial Company Limited and Another SCZ/ 8/ 23/ 2023. ' - • - 17. Inda Zambia Bank Limited v. Mushaukwa, Muhanga (2009} ZR 266. 18. Spectrum Corporation Services Limited v. Lafarge Zambia Plc, CAZ Appeal No. 187 of 2023 . • 19. Base Chemicals v. Zambia Air Force (2011) 2 ZR 34. 20. Emergency Response Zambia Limited v. First Quantum Minerals Limited2 Appeal No. 24 7 of 2022. 21. Roland v. Divall, (1923) 2 KB 500. 22. Madison General Insurance Company Limited v. Cornhill And Another, Appeal No. 19 of 2017 . • 23. Victor Corney v. Attorney-General, Appeal No. 7 o_f 1990. 24. London Ngoma and Others v. LCM Company Limited, Appeal No. 122 of 2017. 25. Stockloser v. Johnson (1954), l QB 476. 26. Cavendish Square Holding BV v. Makdessi (2016) AC 1172. 27. G. F Construction Limited (1976) v. Rudnap (Zambia} Limited and Unitechan Limited (1999) ZR 134. Other works referred to: 1. Halsbury's Laws of England, 4 th Edition, Volume 32 at page 37. 2. Cartwright J (2006) ''Misrepresentation, Mistake and Non-Disclosure'' 3 rd Edition at Page 628. 3. ''Chitty on Contracts'' Vol 1, 32nd Edition: Sweet & Maxwell at 3-019. 4. R. Murray ''Contract Law-The Fundamentals'', 2 nd Edition, Sweet and Maxwell page 225. 5. Halsbury's Laws of England, Vol 9(1} 4 th Edition, (Re-Issue} at paragraph 986. 6. R. E. Salhany (1991) ''Cross Examination: The Art of the Advocate''. Butterworths, Toronto, page 7. 1.0 INTRODUCTION AND BACKGROUND 1.1 The dispute between the parties relates to well-known premises in Lusaka commonly known as ''The Show Grounds''. Sometime in 2008, the Agriculture and Commercial Society of Zambia (ACSSZ) entered into a SO-year lease with the plaintiff. The lease allowed the plaintiff to erect a building on the land. In 2018, the plaintiff entered into a contract with the defendant regarding the building. The plaintiff alleges that it sold the unexpired term of the lease to the defendant while the defendant alleges that the contract was for the sale of the property and not the lease. It is as a result of the aforesaid that the plaintiff sought the intervention of this Court through this action. -J2- - - 1.2 On the 24th April, 2023, th e High Court d elivered Judgment wh ich was challenged b efore the Court of App eal. In its decision, the Court of Appeal ordered a re-trial before a different Judge . It is as a r esult of this order that this matter was re-tried. 2.0 THE AMENDED STATEMENT OF CLAIM 2 . 1 On the 29th of Janu ary, 2025, the plaintiff filed an amended statement of claim wherein it disclosed that by a lease agreement of 20 th November, 2 0 08, th e ACSSZ demised a portion of stand No. 2374, Lusaka to the plaintiff for a lease period of 50 years . 2 .2 By a contr act of sale between the parties of 6 th February, 2018, the defendant agreed to purchase the residue of the unexpired lease between th e p laintiff and ACSSZ, together with the unexhausted improvements thereon at a • price of USD4,800,000 .00 . It was agreed between the parties that the p la intiff wou ld lease the residu e of the unexpired lease to the defendant with authority from ACSSZ which permission was granted. 2.3 The initial payment was to be paid as follows : 1. USD500,000.00 on signing of the contract; 2. USD500,000.00 on 30th June, 2018; 3. USD1 ,000 ,000.00 on or before the 30th April, 2019; 4 . USD1 ,000,000.00 on or before t.he 30th of April , 2020; -J3- • • 5. USD1 ,000,000.00 on or before the 30th of April, 2021; and 6. USDB00,000.00 on or before the 30th of April, 2022. 2.4 By special condition No.10, it was agreed that the initial deposit of USDS00,000.00 would be forfeited by the defendant to the plaintiff if there was default in payment of subsequent instalments. The defendant also agreed to pay ACSSZ fees (lease payments for the year 2018 and subsequent years). The defendant paid the initial deposit of USDS00,000.00 on 22nd February, 2018. 2.5 The amended statement of claim disclosed that as agreed, the 2nd instalment payment was due on 30th June, 2018 but despite numerous reminders, the defendant defaulted on subsequent instalments. In the spirit of good will, the parties executed an Addendum on 13th May, 2019, to accommodate the defendant's failure to settle the instalments and deferred payments as follows: 1. The sum of USD1 ,000,000.00 was deferred as follows: i. The sum of USD250,000.00 on or before the 30th of June, 2019; ii. USD250,000.00 on or before the 1 st of August, 2019; iii. USD250,000.00 on or before the 15th of September, 2019; and iv. USD250,000.00 on or before the 1 st of November, 2019. -J4- 2.6 That the sum of USDl,000,000.00 was deferred to on or before the 30th day of April, 2020, USD 1,000,000.00 on or before the 30 th of April, 2021 while USD800,000.00 on or before the 30th day of April, 2022. 2.7 Despite the adjustment, the defendant still defaulted on its payments and proposed to execute a 2nd Addendum which was accepted and executed on 17th September, 2019. The defendant agreed to make 3 equal instalments of USD333,333.33 in October, 2019, November, 2019 and December, 2019. Under the 2nd Addendum, it was agreed that in the event of default, the defendant would forfeit all payments made towards the purchase price. Despite making further adjustments to payment timelines, the defendant still defaulted. Since signing the addendums, the defendant has only paid the sum of USD200,000.00 on 12th December, 2019 bringing the total paid to USDl,200,000.00. Paragraph 17 of the amended statement of claim states that as a result, the plaintiff has suffered loss and damage as follows: 1. loss of profits in form of rentals from the building of USD1 ,200.00 per day up to date of rescission; 2. legal fees of USD49,000.00; 3. estate agent fees of USD52,000.00; and 4. transfer of property fees paid to the ACSSZ USD80,000.00. -JS- • - 2.8 It therefore claimed- 1 . an order for rescission of the cont.ract; 2. damages as pleaded in paragraph 17; 3. an order that the defendant forfeits money paid towards the purchase consideration; 4. damages for breach of contract; 5. interest; and 6. costs. 3.0 THE AMENDED DEFENCE AND COUNTER-CLAIM 3.1 On 17th Febrnary, 2025, the defendants filed an amended defence and counter-claim. 3.2 It averred that on 23 r d January, 2018 , it made an offer to purchase Stand No. 2374, Show Grounds, Lusaka from the plaintiff at the price of USD4,800,000.00. On the same day, the plaintiff accepted the offer. However, the plaintiff was not the legal owner of Stand 2374, Show Grounds, Lusaka as it belongs to ACSSZ. The effect of the transaction was that there was no contract between the parties on the 6 th of February, 2018. That there was a fundamental mistake of fact that went to the root of the agreement as the parties agreed to an outright purchase and sale of Stand No. 2374 Show Grounds and not the purchase of the lease as provided in the contract of sale. The particulars of mistake were outlined as follows: -JG- • 1. That the defendant at all times contracted to and believed that it was purchasing full ownership (title) of Stand No. 2374; 2. The plaintiff however only had a lease hold interest in the said property and not the title ownership which was in fact vested in ACSSZ; 3. The plaintiff had no authority to sale the property because ownership remained with ACSSZ; rather, the plaintiff only had authority to assign its lease hold interest to third parties; 4. The defendant offered to purchase Stand No. 2374 believing it was acquiring title; 5. The plaintiff accepted the offer without disclosing that it was only selling as leasee, the unexpired residue of the lease between itself and ACSSZ; and 6. The contract that resulted was fundamentally different from what was intended and agreed creating a scenario were the parties were contracting at cross purposes. 3 .3 The defendant averred that the agreement wrongly stated that the plaintiff was selling Stand 237 4 as leasee to the defendant when the parties never agreed. Therefore, the agreement cannot be enforced. The defendant admitted that the addendums were executed but averred that there being no agreement between the parties, neither the 1st nor the 2 nd Addendum can be enforced. In the alternative, it averred that if the agreement is found to be valid and enforceable, then the clause requiring the defendant to forfeit all sums paid is unconscionable and as such, unenforceable. -J7- • 3 .4 In the counter-claim, the defendant outlined the particulars of special loss and damage as being- 1. The sum of USD1 ,200,000.00 paid by the defendant to the plaintiff as deposit and partial instalment towards the purchase price of Stand No. 2374, Show Grounds, Lusaka contracted to be sold to the defendant by the plaintiff as vendor; 2. The sum of USD9,600.00 paid as legal fees to Messrs AB David (SIC) being conveyance fees; and 3. All sums of rentals paid by the defendant to the Agriculture and Commercial Society of Zambia in terms of the contract of sale aforesaid. 3.5 And the defendant claimed- 1. an order for rescission of the contract of sale dated 6 th February, 2018 entered into between the plaintiff and defendant for mistake of fact; 2. an order for the plaintiff to refund the sum of USD1 ,200,000.00 to the defendant being money paid to the plaintiff as a deposit and partial payment made under the rescinded contract of sale dated 6th February, 2018; 3. in the alternative to 1 and 2 above, an order for the plaintiff to refund the defendant the sum of USD700,000.00 being payment not forming part of the deposit; 4 . any other relief the Court may deem fit; 5. interest on all sums found due and owing; and 6 . costs . 4.0 THE AMENDED REPLY AND DEFENCE TO COUNTER-CLAIM 4.1 On the 3 rd of March, 2025, the plaintiff filed an amended reply and defence to counter-claim. -J8- • • " 4.2 It maintained that the parties entered into a valid agreement dated 6 th February, 2018. Further, that the defendant was aware that it was buying the unexpired residue of the lease agreement between the plaintiff and ACSSZ. It stated that the defendant would not have agreed to pay lease charges to ACSSZ if what it had contracted to buy was not a lease from the plaintiff. Further, that there was no mistake on the part of the defendant as it was fully aware and it did consent to the terms of the contract of sale and further that the said agreement and subsequent addendums are enforceable in line with the terms agreed by the parties. That the clause requiring the defendant to forfeit all sums paid was willingly consented to by the defendant as an agreed term of the contract. 4.3 As regards the defence to the counter-claim, the plaintiff denied the assertion that the defendant suffered any loss or damages as claimed. 5.0 THE EVIDENCE PRESENTED IN THIS CASE 5.1 The first witness to be called was Celine Nair, an advocate of the High Court. 5. 2 She testified that sometime in 201 7, she was engaged by the plaintiff to handle a transaction in which it was selling the residue of a lease it held from the ACSSZ together with -J9- • • . unexhausted improvements thereon. Following her retainer, she was instructed to accompany the plaintiffs representatives to a meeting with the intended purchaser where she met Mr. Bokani Sako, Zaheeda Essa and Mr. Naik of the defendant's company. 5.3 During the meeting, it was explained to the defendant that the plaintiff held a lease from ACSSZ and a copy of the lease was given to Mr. Sako, who queried the remaining number of years left on the lease and was informed that it was about 33 with an option to renew. That he also inquired about the registration status of the lease of which she informed him that she would find out. The parties negotiated the sum of USD4,800,000.00 as the purchase price for the residue of the lease and the building built thereon and she was tasked to draft the contract of sale. It was also agreed that a deed of novation would be prepared to transfer the plaintiffs rights under the lease to the defendant. 5.4 She conducted a search at the Ministry of Lands and discovered that the lease was not registered and after informing Mr. Sako, it was agreed that the lease be registered which she did and Mr. Sako was informed. In the draft contract, she ensured that it clearly indicated that what was being sold was a residue of the -JlO- • - • lease and the building thereon. That in order to conform to the Law Association of Zambia General Conditions, they also included the description of the property which was subject of the lease with the ACSSZ. That the draft contract was sent to Ms. Zaheeda Essa who reviewed and returned it with minor changes and asked her to finalise. A meeting was held and the contract of sale was signed . She stated that the defendant was aware from the onset that it was purchasing the residue of the lease and no issue was raised. 5.5 After execution, she began the process of getting approval from ACSSZ for the transfer of the lease from the plaintiff to the defendant. That she was informed that a transaction fee of 3 °/o had to be paid. That ACSSZ expressed concern with the particulars in the contract. She accordingly wrote to the defendant's lawyers, AB and David to request for an amendment on the observations made by ACSSZ. She also informed the defendant that they had to pay 3 o/o purchase price transaction fee and further that they needed to pay the lease fees as per the invoice rendered by the ACSSZ. The letter in issue appears at page 42 of the plaintiff's bundle of documents. That she also wrote an email to the defendant's lawyers in which she reiterated the request for an amendment as -Jll- suggested by ACSSZ as shown at page 12 of the plaintiffs supplementary bundle of documents. That despite several reminders, the defendant opted not to amend the particulars in the contract as they felt the parties understood well what was being sold. That it was shocking that the defendant was claiming that the plaintiff misrepresented the nature of the property sold to them when it was aware from the start that what it was buying was the residue of the lease agreement. 5 .6 It was her evidence that the defendant constantly breached the terms of payment s~t out in the contract of sale and signed two addendums in which it agreed to forfeit any sums made thus far. That she was also aware that the defendant also paid a total sum of USDl,200,000.00 leaving a balance of USD3,600,000.00 and interest as agreed. That the plaintiff settled her fees in the sum of USD49,000.00 and she was instructed to pay the estate agents a sum of USD52,000.00 as agency commission and she accordingly sent the sum of USD32,000.00 leaving a balance of USD20,000.00. 5 .7 In cross-examination, Ms. Nair was referred to a letter of offer from the defendant at page 22 of the plaintiffs bundle of documents and she confirmed that it relates to the property in -J12- • -. - issue and that it was an expression of interest to purchase Stand No. 2374, Show Grounds. 5.8 She agreed that this expression of interest makes no reference to any lease between the plaintiff and ACSSZ. When referred to the letter of acceptance at page 23 of the same bundle, she stated that the acceptance was subject to contract. She however admitted that the acceptance does not mention a lease between the plaintiff and ACSSZ. However, she was quick to point out that the contract of sale refers to the lease between the plaintiff and ACSSZ. 5.9 She denied the assertion that the plaintiff was selling a proposed subdivision. That according to the contract of sale, the plain tiff was looking to sell the unexpired residue of the lease. She testified that there was nothing wrong with referring to a lease in one part and proposed subdivision in another in the same contract. 5.10 She confirmed that in the email at page 12 of the plaintiffs supplementary bundle of documents, ACSSZ was expressing concern on the particulars in the contract and essentially telling her that the property was not being subdivided. -J13- • - 5 .11 In re-examination, she testified that the property in issue relates to a subdivision because the entire Show Grounds and surrounding areas are all referred to as Plot 2374, Lusaka. That the only way to describe the piece of land where this subdivision sits is proposed subdivision of Plot 2374, Lusaka. 5.12 The second witness called was James Walsh, a director in the plaintiff company. Components of his testimony where more or less a repetition of the statement of claim. 5.13 He testified that in the year, 2008, the plaintiff entered into a lease agreement with the ACSSZ for the demise of Stand Number 2374, Show Grounds to the plaintiff for a period of 50 years. He referred to a lease agreement at page 1 of the plaintiffs bundle of documents . The aforementioned lease permitted the plaintiff to develop Stand Number 2374 by erecting buildings and other works thereon. As a result, it completed a building measuring approximately 5000 square metres in 2017. It engaged an estate agent to find a buyer, who, in the same year, reported that the defendant had expressed interest. A meeting was held with the defendant represented by Mr. Naik and Mr. Bokani Soko while the plaintiff was represented by Celine Nair, John Murphy and himself. -J14- 5.14 During the meeting, it was explained that the plaintiff held a lease for 50 years with the ACSSZ and a copy of the lease and valuation report were handed over to the defendant. The parties negotiated and agreed to a discounted rate of USD4,800,000.00 and Celine Nair informed the defendant to officially make an offer. The offer was received the same day and the acceptance of the lease was made appearing at page 23 of the plaintiffs bundle of documents. 5.15 During the meeting, the defendant requested the plaintiff to pass a resolution, authorising the sale of the building, which was done and a copy sent to the defendant. The resolution appears at page 24 of the plaintiffs bundle of documents. 5.16 He testified that it was clearly indicated in the resolution that the plaintiff was selling the building, which was subject of a lease between the plaintiff and ACSSZ. Thus, the defendant was aware from the onset that the building was being sold subject to the lease between the plaintiff and ACSSZ. That, therefore, from the onset, the defendant was informed that the plaintiff held a lease and that it was paying lease fees, which obligation they would take over if they agreed to buy the remainder of the lease with the unexhausted improvements thereon. -JlS- - 5.17 Celine Nair and company prepared a draft contract of sale, which the defendant reviewed and later approved. That this contract appears at page 25 of the plaintiffs bundle of documents and therein, it states that what was being sold was the residue of the lease agreement held with ACSSZ. That the contract of sale also gives a description of the property and measurements of the building as being 5000 square metres. 5.18 It was his testimony that many clauses in the contract show that what was being sold was a residue of the lease. To this end, he referred to Clause 4 in the special conditions, amongst other clauses. That after execution of the contract, the defendant paid the lease fees for the year 2018, and in fact, went back to ACSSZ to negotiate an additional lease for the land in front of the building, which it turned into a carpark. He referred to letters and invoices to evidence this at pages 1-6 of the plaintiffs supplementary bundle of documents. 5.19 That according to the contract, the defendant was to pay the agreed purchase price as stated in the amended statement of claim. 5.20 That by special condition number 10, it was agreed that the initial deposit of USDS00,000.00 would be forfeited in the event of default by the defendant in subsequent years. That the initial -J16- • deposit of USDS00,000.00 was paid on 22nd February, 2018, almost 20 days after execution of contract. Out of good will, the plaintiff accepted the payment and handed over possession of the building to the defendant. That the defendant has been in occupation to date and the property handover certificate is at page 10 of the defendant's bundle of documents. 5.21 The second payment was due on 30th June, 2018 , but the defendant failed to pay on the due date. Various letters were written which appear at pages 43 to 45 of the defendant's bundle of documents. In the spirit of good will, the plaintiff agreed to execute an addendum to the initial contract to accommodate the defendant's failure to make payments on time . That the parties executed the 1st Addendum to the contract on 13th May, 2019 and agreed to defer payments further. These timelines are stated in the statement of claim. 5.22 That the 1st . Addendum is at page 52 of the plaintiffs bundle of documents. Despite the adjustments, the defendant defaulted on its payments prompting the plaintiffs lawyers to send a notice to complete and a letter rescinding the contract which appear at pages 58 and 59 of the same bundle of documents. The parties held a meeting to discuss the way forward and the defendant requested for further extensions of time and following . -J17- e • the meeting, they executed a 2nd Addendum on 17th September, 2019 which deferred payment timelines. Under this Addendum, the defendant agreed to make three equal instalment payments of USD333,333.33 in October, 2019, November, 2019 and December 2019. Because of the problems the plaintiff was having with payments, the parties agreed to insert a forfeiture clause in the contract and it was an express term of the 2nd Addendum that in the event of default, the defendant would forfeit all payments made towards the purchase price. That the 2nd Addendum is at page 60 of the plaintiffs bundle of documents. That since execution of the 2nd Addendum, the defendant only paid the sum of USD200,000.00 bringing the total to USDl,200,000.00 and leaving a balance of USD3,600,000.00 plus interest. 5.23 Sometime in 2020, the plaintiff engaged Messrs. Central Chambers, who wrote a demand later to the defendant. That the defendant reacted by making baseless allegations of misrepresentation. That this came as a shock to the plaintiff because the defendant knew and was aware at all material times that it was buying the residue of the lease and the unexhausted improvements there on. That this was an afterthought meant to escape the forfeiture clause in the -J18- ,.. • contract. Because of the defendant's failure to pay the agreed purchase price, the plaintiff continued and continues to pay lease charges to ACSSZ which ought to have been paid by the defendant according to the contract. That as at the time of filing the action, it had paid a total of USD80,000.00 to ACSSZ. He referred to a letter at page 36 of the plaintiff's bundle of documents. 5.24 He testified that the plaintiff paid Celine Nair and company USD49,000.00 as legal fees and the sum of USD52,000.00 to the estate agent as commission. Further, that the defendant has been in occupation since 2018 and therefore, the plaintiff is entitled to mesne profit at the rate it would have earned had it rented the building to another occupant. He disclosed that the market rent for commercial properties in the area is USD 12 per square metre. That the total area occupied by the defendant is 3000 square metres and thus the total rental income per month is USD36,000.00. That the defendant has had occupation of the building for 48 months, which amounts to USDl,728,000.00 as at April, 2022. That the amount continues to accrue until the defendant vacates. 5.25 In cross-examination, Mr. Walsh confirmed that he received an offer which the plaintiff accepted. He admitted that the offer -J19- " talks about purchase of Stand 2374 Show Grounds, Lusaka and does not mention any proposed subdivision or any lease between the plaintiff and ACSSZ. According to him, the offer was to purchase the building. He was quick to point out that in the acceptance, the plaintiff stated that the acceptance was subject to contract. 5.26 When referred to the special resolution by the plaintiff, he stated that it refers to a lease . He stated that the plaintiff wants its building back. 5.27 The rest of the cross-examination was more or less a repetition of his evidence in chief. 5.28 This witness was not re-examined. 5.29 The defendant did not call any witness to support its case. 6.0 THE PLAINTIFF'S FINAL SUBMISSIONS 6.1 On the 23rd of May, 2025, Mr. Sampa, Mr. Sakala and Mr. Chiluba filed final submissions on behalf of the plaintiff. 6 .2 They began by discussing the binding effect of a contract and to this end, they relied on the following authorities: 1. Road Transport and Safety Agency v. Zindaba Soko;(1 ) 2. Friday Mwamba v. Sylvester Nthenge and Others;<2l and 3. Colgate Palmolive Zambia (lnck) v. Abel Shemu Chuka and Others.<3l -J20- .. 6 .3 On the defendant's contention that there was a mistake of fact because it believed that it purchased full ownership or title to Stand 2374, they submitted that the contract of sale at page 26 of the plaintiffs bundle of documents is very clear. That what was being purchased was the residue, now unexpired of the lease between the ACSSZ and the plaintiff. They listed various special conditions in the contract, namely, special conditions 4, 6, 7, 9 and 14 which make this very clear. 6.4 It was their submission that Celine Nair's testimony was that the draft con tract of sale was sent to the def end ant's in -house counsel, Ms. Zaheeda Essa, who reviewed it and made minor changes as well as the defendant's previous counsel, Messrs. AB and David. That the evidence of Celine Nair was not challenged in cross-examination. As regards failure to challenge evidence in cross-examination, they referred me to the case of Banda v. The People _(4 ) 6 .5 On the submission around mistake, it was their argument that the defendant bears the evidential burden. To this end, they relied on the learned authors of Halsbury's Laws of England, 4 th edition , Volume 32 at page 37 and Cartwrigl1t J in his book ''Misrepresentation , Mistake and Non-Disclosure'' 3rd edition at Page 628. That the above authorities point to the fact that a party -J21- • that raises a defence of mistake in the formation of a contract bears the burden of proof. That the defendant ought to have called evidence to discharge its evidential burden for the defence of mistake. They also cited the case of Kalusha Bwalya v. Chardore Properties and Ian Chamunora , Nyalungwe Halluperi(s) on the subject of mistake. 6 .6 It was their submission that the defendant cannot rely on parole evidence that it was offered Stand No. 2374 believing it was acquiring title to the property and that the plaintiff accepted the offer withqut disclosing in its letter of acceptance that it was only selling the unexpired residue of the lease . That this is because the parties signed a contract. Counsel relied on Holmes v. Buildwell Construction Limited(6 > and Sam Amos Mumba v. Zambia Fisheries and Fish Marketing Corporation Limited .(7) 6. 7 They reiterated that the operative clause in the contract clearly states that what was being sold was a lease. That the defendant not only conceded that it signed a contract of sale but that it proceeded to perform part of the contract by settling rentals to ACSSZ in pursuance of the said agreement. Therefore, the defence of mistake was an afterthought intended to shield its face from the consequences of breach of contract. -J2 2- • • • 6.8 On its allegation that the plaintiff had no authority to sell the property because ownership remained with ACSSZ, counsel submitted that the plaintiff only had authority to assign its leasehold interest to third parties. That nowhere did the plaintiff claim that it had authority to sell Stand No. 2374. That the plea by the plaintiff therefore has no basis. 6.9 On the claim for damages for breach of contract, they contended that the defendant does not dispute that it defaulted on its payment obligations under the contract and this is what led to the two addendums at pages 52 and 60 of the plaintiffs bundle of documents which were executed by both parties. That the defendant constantly defaulted on its obligations under the agreement and therefore, breached the contract of sale entitling the plaintiff to damages for breach of contract. To this end, they relied on the fallowing authorities: 1. Halsbury's Laws of England, Volume 9, 4th edition; 2. Finance Bank Zambia Limited and Others v. Simataa Simataa;(a> 3. Robinson v. Harman;(9 > and 4. Hadley v. Baxendale.(10l 6.10 That the legal fees paid where USD49,000.00 while the agency fees paid where USD52,000.00. That in special condition number 14, the obligation to pay lease fees to ACSSZ was with the defendant and that upon execution of the contract, the -J23- -- • • • defendant paid fees for 2018 but neglected to pay fees for subsequent years thereby breaching special condition number 14 of the contract. 6.11 As regards mesne profits, they argued that market rentals for a building in the area where the subject property is located are at USD 13.00 per square metre and the area occupied by the defendant measures 3000 square metres. Therefore, the plaintiff is entitled to mesne profit from February, 2018 to the date when the defendant yields vacant possession of the property. That this is because the defendant has continued to derive benefit from the occupation of the building which if it had not occupied, the plaintiff would have earned income by renting it to a third party. To support their argument on mesne profit, they referred me to the case of Kayope v. Attorney-General.(11) 6.12 As regards the claim for forfeiture of sums paid by the defendant, they referred me to special condition number 10 of the cont.ract of sale as well as Clause 3 of the 2 nd Addendum. That the USDl,200,000.00 paid before execution of the 2 nd Addendum is equally forfeited since the defendant has to date not paid the purchase price in full. 6.13 Counsel also submitted that the plaintiff is entitled to rescission of the contract. That Celine Nair, testified that she issued a -J24- t notice of intention to complete giving the defendant 14 days' notice. To this end, she referred me to the case of Samarenko v. Dawn Hill House Limited.<12 > That it follows that having complied with the req"L1irement to issue a notice to complete and in light of the defendant's persistent default in paying the balance of the purchase price, the plaintiff is entitled to an order for rescission of the contract. 7 .0 THE DEFENDANT'S FINAL SUBMISSIONS 7 .1 On the 9 th of June, 2025, Mr. Phiri, Mr. Nkunta and Mr. Chisonga filed final submissions on behalf of the defendant. 7.2 They submitted that there was a unilateral mistake between the parties and to this end, they referred me to the learned author, Chitty on contract 25th edition, volume 1, pages 186 to 187 as well as the case of Scriven brothers and Co. v. Hindle~ and Co.(13) 7.3 That in cross-examination, Mr. Walsh admitted that there was confusion on what was actually being transacted which was evident from the offer, acceptance and the contract of sale. That in light of the def end ant's off er, the plain tiffs acceptance and subsequent contract of sale, it is clear that the parties were contracting at cross purposes, which at law is referred to as a unilateral mistake. That the effect of a unilateral mistake was discussed in Crane v. Hegeman-Harris Co. Inc . (14 ) -J25- • • 7.4 That the Courts can intervene in contracts where, while the final written agreement were duly executed by t.he parties at their own free will, the agreement did not express their true intentions . That it is not the intention of the law that the parties be bound to all written contracts executed by them, even where there are grounds that such agreement ought not to be enforced. As regards the evidential burden of proof for mistake, they relied on the celeb rated case of Khalid Mohammed v. Attorney General(15) to the effect that the plaintiff bears the burden of proof. That it is misleading that the defendant ought to prove its defence through its own evidence. That to the contrary, the • defendant throu gh cross-examination can prove facts favourable to its case and to this end, they relied on the learned author of ''Cross-Examination : The Art of the Advocate'', by R. E. Salhany Butterworths. Toronto, 1991 at page 7 . 7 .5 Counsel also submitted on the parole evidence and contra proferentum rules of contract. They submitted that the parole evidence rule is not a hard and fast true as held in Gillian Kasempa Mutinta v. New Future Financial Company Limited and Another(15) as well as the case of Holmes Lim ited v. Buildwell Construction Company Limited .(6)That the contract of sale did not embody the actual agreement of the parties as such, the -J26- • • • defendant's offer letter and the plaintiffs acceptance letter, were • called to demonstrate that the written agreement did not embody what the plaintiff alleges was agreed upon. 7 .6 As regards the contra proferentum rule, they referred me to the case of lndo Zambia Bank Limited v. Mushaukwa, Muhanga<17l as well as Spectrum Corporation Services Limited v. Lafarge Zambia Plc.(18) That this is a proper case to hold against the drafter of the contract being the plaintiff. That however, because title cannot be passed to the defendant, this Court should hold against the plaintiff to the effect that there was a mistake of its own creation, which it failed to resolve. 7. 7 As regards damages, they submitted that the plaintiff is not entitled because there was no contract between the parties and in the alternative, the sum of USDS00,000.00 deposit accounts for damages. They relied on the cases of Base Chemicals v. Zambia Air Force<19l and Emergency Response Zambia Limited v. First Quantum Minerals Limited. < > That a contract can be held to be unenforceable even after it has been performed by the plaintiff. Once held to be unenforceable, no damages are payable under such a contract, except those damages payable on a quantum meruit for work performed. -J27 - • • 7 .8 That in the present case, because the parties were vendor and purchaser, there was no work performed by either party that would warrant recovery on a quantum meruit, as such, the plaintiff is not entitled to any damages. Counsel also referred me to the learned authors of Atkins's Court Forms, 2nd Edition, Volume 12, at page 207 as well as Roland v. Divall(21 ) on unenforceable contracts of sale. 7.9 In the alternative, they submitted that damages, if any, have already been settled as a sum of USDS00,000 .00 was paid to the plaintiff as a non-refundable deposit. That this money fully and adequately settles any damages due for failure to complete. That further, because a contract is unenforceable, all sums paid under the unenforceable contract must be refunded to the defendant and the property returned to the p laintiff to bring the parties to their respective pre-contractual positions. That in the alternative, USD700,000.00 which is the excess of the non refundable USDS00,000.00 must be repaid to the defendant as the same would go beyond the scope of damages. 7.10 They submitted that they be granted an order for rescission of the contract on grounds that it was void on account of mistake. As regards the damages as pleaded for lease charges, legal fees, estate agency fees, they submitted that these were not proved -J28- • • and they relied on Madison General Insurance Company Limited v . Cornhill And Another(22 ) and Victor Corney v. Attorney-General.(23 ) 7 .11 On mesne profit, they submitted that there was no landlord and tenant relationship between the plaintiff and neither was the property rented. Further, that the defendant never trespassed on the property and always had lawful possession. To this end, they relied on London Ngoma and Others v. LCM Company Limited. (24 ) 7 .12 As regards forfeiture of the money, they submitted that this amounts to a penalty and the Supreme Court of England and Wales has held that such contracts cannot be upheld by the Courts. To this end, they relied on Stockloser v. Johnson(25 l and Cavendish Square Holding BV v. Makdessi.<25>That enforcing such a contractual provision is unenforceable and amounts to a penalty. 7 .13 On damages for breach of contract, they submitted that the contract is unenforceable and therefore, the sums paid under it must be refunded to the defendant and the property returned to the plaintiff. 7 .14 On interest, they submitted that any funds found due should carry interest. -J29- - ,. 7.15 On costs, they submitted that each party bears its own costs. However, if the Court fmds that the contract was unenforceable, the Court should order costs in favour of the defendant. 8.0 THE PLAINTIFF'S FINAL SUBMISSIONS IN REPLY 8.1 In the submissions in reply, counsel contended that there is a disparity between the mistake pleaded in the amended defence and counter-claim and the one argued in their submissions. Counsel cited various authorities on the functions of pleadings to support this argument. It reiterated its submissions on the burden to prove mistake, the parole evidence rule and that the defendant is not entitled to damages. 9.0 CONSIDERATIONS, FINDINGS AND CONCLUSION 9. 1 I have considered the pleadings in this matter, the evidence adduced, counsel's submissions and the authorities cited. 9.2 The main issue in dispute is whether there was a mistake between the parties, that is, that the parties were at cross purposes .. 9.3 The defendant heavily relies on the offer it made to the plaintiff and the plaintiffs acceptance of the offer to advance its contention. It also points out that the description of the -J30- - property in the contract of sale was that a proposed subdivision was being sold by the p lain tiff. 9.4 The sequ ence of events from the evidence is that the parties met at which it was discussed that the plaintiff held a lease from ACSSZ and that Mr. Sako, of the defendant, queried the number of years remaining on the lease. He was infor med that it was 33 . This evidence was not discredited by the defendant in cross examination. Celine Na ir also testified that Mr. Sako also wanted to know wheth er the lease was r egistered and upon finding ou t that it wasn't, she registered it and informed him. Again, this evidence was not discredited in cross examination . . Unchallenged evidence by Mr. Walsh was also that Celine Nair ask ed the d efend ant to make an official off er and the offer by the d efendant at page 22 of the p laintiffs bundle was made. It says- '' ••• EXPRESSION OF INTEREST TO PURCHASE STAND NO. 2374, SHOWGROUNDS SITUATED ALONG KELVIN SIWALE ROAD OF LUSAKA. We wish to express our willingness to purchase the property being Stand No. 2374, showgrounds situated along Kelvin Siwale Road of Lusaka We are pleased to offer the total sum of USD4,800 ,000.00 (United States Dollars Four Million Eight Hundred Thousand Only) for -J31- ,. • outright purchase of the above mentioned including any statutory fees that may apply. We look forward to your positive response. '' ••• 9. 5 On the same day, the plaintiff responded to the offer in a letter at page 23 of the same bundle stating that- " ••• RE: EXPRESSION OF INTEREST TO PURCHASE STAND NO. 2374, SHOWGROUNDS We thank you for your offer for outright purchase of the above mentioned property for the price of USD4.8 million. We can confirm that the offer is acceptable to us, subject to contract, and we have requested our lawyer to draft an agreement for signature and to be in contact with you . ... " [underlining for emphasis only] 9 .6 Following this acceptance, the evidence is that the defendant asked for a resolution from the plaintiff and the plaintiff passed the following resolution appearing at pages 24 of the same bundle: '' ••• 1. We do hereby agree to sell the building in extent 5000sq metres being a portion of Stand 2374 Show Grounds Area Lusaka and ·subject to a lease dated 20th November. 2008 between ourselves and the Agricultural and Commercial Show Society of Zambia to Grandview Properties Limited for the agreed sum -J32- • of Four Million Eight Hundred Thousand United States Dollars only ($4,800,000). 2. That a Contract of Sale be executed by the two parties to cover the details of the said sale . . . . " [underlining for emphasis only] 9 .7 What followed was t h a t on 6 th February, 2 01 8, the parties sign ed a con tract of sale. It stated , in part as follows: '' • • • A portion of Plot 2374 great East Road Agriculture and Commercial Show Society of Zambia Lusaka . • • • WHEREBY IT IS AGREED that the Vendor will sell and the Purchaser will purchase the residue now unexpired of the Lease entered into between The Agricultural and Commercial Society of Zambia of the one part and the Vendor of the other part dated the 20th November, together with the unexhausted improvements (hereinafter called the Lease) and the property built thereon referred to in the accompanying particulars (hereinafter called ''the Property'') at the price of FOUR MILLION EIGHT HUNDRED THOUSAND UNITED STATES DOLLARS ONLY (USD4,800,000) (hereinafter called ''the Purchase Consideration'') upon the accompanying terms and conditions and the Vendor and the Purchaser do on their respective parts agree to complete the said purchase on the said terms and conditions . • • • PARTICULARS (Description of the Property) -J33- • • ALL THAT piece of land in extent approximately 5000 square metres being a proposed subdivision of Plot 2374 Lusaka more situate in Lusaka in the Lusaka Province of Zambia which for purposes of identification is more particularly delineated and described on a Sketch Plan attached hereto and thereon boarded in red except and reserved all mineral oils and precious stones whatsoever upon or under the said land together with the unexhausted improvements thereon." 9 .8 The question that begs an answer is whether, from the circumstances and documents exchanged and signed above, the parties were at cross purposes as alleged by the defendant. 9.9 I agree with the contention by the defendant that it offered to purchase stand 2374 Show· Grounds and the offer was accepted. However, it is clear from the acceptance that it was subject to contract. At that point, the defendant was put on notice that the acceptance was going to be subject to what would be agreed to in the contract. The acceptance was subject to contract, hence there was no conclusive agreement between the parties at this point as it was subject to a contract. It follows that it was only after the contract of sale was signed that the agreement between the parties was concluded. 9.10 Further, the Board Resolution by the plaintiff shows that what was to be sold was the lease and not the titled property. In any event, ev~n if this Court accepted the defendant's contention, -J34- • • that the parties signed a contract for the sale of Plot 2374, the operative part of the contract, reproduced above, made it clear that what was being sold was the lease . Apart from the above, the Special Conditions of the contract also make it clear that what was being sold was the lease. The relevant portions are as follows : ''1 . . .. 2. 3. 4. the Vendor is selling as Lessee with authority to sell from the Agricultural and Commercial Show Society of Zambia (ACSZ) hereinafter called the Lessor; 5. The Property located on the road front of Kelvin Siwale Road Lusaka comprises one piece of land in extent 5 ,000 square metres with one office Block building being approximately 3 ,000 square metres comprising 680 square metres on the upper floor Western Wing , 620 square metres Eastern Wing , 680 square metres Ground Floor, 620 square metres Ground Floor and the rest being common areas and passages; 6 . Title shall commence with the Lease Agreement entered between the Vendor and the Lessor dated 20th November, 2008. The said Lease will only be transferred to the Purchaser upon full payment of the purchase price; 7 . This Contract of Sale is made subject to the Lease and Regulations made by the Lessor; 8. . . . -J35- -------------- • - • - • 9. The property is sold subject to the exceptions, reservations restrictions restrictive convents and conditions held by the Vendor by its head lease; 10 .... The initial deposit payment of $500,000 is non-refundable in the event of default by the Purchaser in subsequent years; 11 . . . 12 . .. . 13 . .. . 14. The 2018 Show Society fees of $19,739.20 and all subsequent Show Society fees shall be paid by the Purchaser; 15 . ... 16. Vacant possession of the property will be given upon receipt by the Vendor of the first instalment payment of USD500,000.00. However, should there be default on the second payment, the Purchasers will hand the property back to the Vendors upon written demand . . . . '' [underlining for emphasis only] 9.11 I must add that the documents exchanged between the defendant and the ACSSZ at pages 1 to 6 of the plaintiffs supplementary bundle of documents also show that the defence by the defendant is an afterthought. I say so because on the 26th of March, 2019, the ACSSZ wrote the following letter, appearing at pages 2 of the plaintiffs supplementary bundle of documents to the defendant, which the defendant acknowledged as having received, saying- '' • • • RE: PAVING ON ACSZ RESERVE LAND The above caption refers. -J36- • With regards to the lease agreement relating to a portion of stand number 2374 Lusaka between Agricultural and Commercial Society of Zambia and former Propak Properties Development Limited dated 20th November, 2008. The Society does not recollect having granted you permission to pave the reserve land outside the demised area (5,000m 2 ) . In the meantime, and subject to your correction on the above matter, the Society writes to advise you to stop the paving works which are currently taking. Do not hesit.ate to contact the undersigned for further details and clarifications . ... " [underlining for empha sis only] 9 .12 In reply, the d efend ant s aid - '' ••• • RE: PAVING ON ACSZ RESERVE LAND Further to your letter dated the 26th instant, we write to apologise for our oversight in informing you of the paving works that have since commenced on the reserve land at Stand Number 2374 (CCO Building Propak). The paving and landscaping work is aimed at enhancing the property and beautifying the environment, and in doing so, increasing the value of the said property and adjacent properties, . which will ultimately be a benefit to the Society. Accordingly, we trust you shall have no objection to our continuing with the paving and landscaping works and await your favourable response soonest. In the meantime, do acknowledge receipt of this letter by signing copy thereof. '' • • • -J37- • 9.13 On the 2 nd of May, 2019, in a letter acknowledged as received by the d efendant, the ACSSZ said- '' ••• RE: PAVING ON ACSZ RESERVE LAND The above caption refers. In your letter dated 17th March, 2019, you requested to formalise the use of the area measuring 1,657.14m2 situated at the portion of Stand Number 2374 show grounds, which has been paved by yourselves. We hasten to state that this was a response to our letter dated 26th March, 2019 where the Society had advised you to stop the works. The purpose of writing this letter to you is to advise you that the . Society has permitted you to use this portion of land on a temporarily basis. This will be the subject of an annual parking agreement. You will be required to pay $5 per square meter, for area of 1,657.14m2 per annum resulting into $8,285.70 as rental fees. This offer will result into forfeiture by 30th May, 2019 should you decide not to accept it. In this regard, the Society will be prepared to continue the use of the premises in the former nature. Find attached hereto bank details and invoice of $6,904.75 (March 2019 to December, 2019) for your attention. We look forward to your usual corporation . ... " [underlining for emphasis only] 9.14 From the above, it is clear that as early as 2019, the defendant knew that the property it alleges to have bought belonged to the ACSSZ. This is clear from the letters exchanged. In fact, in the letter of 26th March, 2019, the ACSSZ restated the fact that -J38- ' it entered into a lease agreement with the plaintiff herein. Despite this further alert, there is no evidence to show that the defendant raised any issue or asserted that it had infact purchased the property and not leased it. This also goes to show that the defendant's defence was an afterthought. In any event, the defendant paid lease charges to ACSSZ for the year 2018. This also shows that it knew that what it sought to purchase was a lease. 9.15 Further, in its pleadings, the defendant stated that the plaintiff had no authority to sell as the ownership of the property belonged to ACSSZ. This supports my finding above that the defendant knew that what it was purchasing was a lease as the plaintiff had no authority to sell Plot 237 4 . In fact, the email at page 12 of the plaintiffs supplementary bundle of documents, to one Dumisani Tembo of AB and David, the defendant's previous lawyers, shows that the issues around the description of the property in the contract as being a sub division was brought to the defendant's attention. This further supports the evidence of the plaintiffs witnesses. 9.16 I, therefore, find that the defendant knew that the contract between the parties was for the purchase of the unexpired residue of the lease between the plaintiff and the ACSSZ. There -J39- is no evidence of mistake in this case. The evidence is clear that the defendant knew that what it was purchasing was a lease. In addition to the above, the defendant went on to sign the 1st and 2°d Addendum to the contract of sale. This goes to show that the parties knew that they were governed by the contract of sale and not offer and acceptance. 9.17 It should be noted that the issue of unilateral mistake only arose in the defendant's submissions. It was not pleaded. What was pleaded was mistake of fact and that the parties were at cross purposes. Even if this was so, the authorities that guide in a situation where parties enter a contract at cross purposes would not help the defendant. The learned authors of ''Chitty on Contracts'' Vol 1, 32 nd edition: Sweet & Maxwell at 3-019 state that- ''Mutual misunderstanding Parties at cross-purposes. In most cases, the application of the objective test will preclude a party who has entered into a contract under a mistake from setting up his mistake as a defence to an action against him for breach of contract. If a reasonable person in the defendant's position would have understood the contract in a certain sense but the defendant ''mistakenly'' understood it in another, then, despite his mistake, the Court will hold that the defendant is bound by the meaning that the reasonable person would have understood. But where parties are genuinely at cross-purposes as to the subject matter of the contract, the result may be that there -J40- • is no offer and acceptance of the same terms because neither • party can show that the other party should reasonably have understood his version. Alternatively, the terms of the offer and acceptance may be so ambiguous that it is not possible to point to one or other of the interpretations as the more probable, and the Court must necessarily hold that no contract exists." 9 .18 Ryan Murray, in his book ''Contract Law-The Fundamentals'', 2nd edition, Sweet and Maxwell puts it this way at page 225- ''MUTUAL MISTAKE A mutual mistake arises when both parties make a fundamental mistake as to the contract, but the parties make a different mistake. As the parties are mistaken as to different issues it is appropriate to describe the parties as being at cross-purposes with one another. A mutual mistake therefore goes to the heart of offer and acceptance and the Courts will again use an objective test in determining whether the contract is binding. If there is sufficient ambiguity as to the fact of agreement the effect will be negative any perceived agreement between the parties." 9. 19 The ref ore, even if I was to find that the parties were at cross purposes, applying the objective test discussed in the above authorities to the circumstances of this case, I hold a strong view that the defendant would be precluded from setting up his mistake as a defence to this action. A person like the defendant, which was ably represented by counsel in the transaction would not have understood the contract to mean purchasing of Stand 2374 Show Grounds, Lusaka. I, therefore, -J41- .. " -. - fmd that there was no mistake and the defendant is bound by the contract of sale entered into in this case. 9.20 Having found as stated, I will consider the reliefs sought by the plaintiff. The first relief sought is for rescission of the contract. 9.21 The learned authors of Halsbury's Laws of England, Vol 9 (1) 4 th Edition (Re-Issue), at paragraph 986 say the following on resc1ss1on: • • '' ... Where a contract has been broken by one party, the other may be entitled to a prima facie right to rescind it de futuro; that is, the latter may be entitled to treat the contract as discharged, in which case for most purposes it will terminate as from that moment. This will be the case, for example, where there has been a breach of condition, repudiation, fraudulent misrepresentation, or rescission by subsequent agreement. Though in some circumstances it is possible to bring an action for rescission, rescission always involves an act of a party (or of both parties) which, if rightly exercised, may be relied upon as a defence in any subsequent action. The use of the same terminology for different situations should not, however, obscure the differences which exist between the varieties of rescission: it seems that where rescission is sought on equitable grounds its effect is to restore the parties to the position before the contract was entered into, whereas rescission at common law for breach simply discharges the parties from further obligations to perform the contract. Following rescission of a contract either ab initio or de futuro, it may be possible to recover money paid in restitution . as on total failure of consideration." -J42- .. 9.22 In the present case, it is not in dispute that the defendant failed to honour its obligations under the contract of paying for the lease as and when the instalments fell due. This continued even after the time for payment was extended via the two addendums signed by the parties. There is uncontested evidence that Celine Nair sent a notice to complete to the defendant and despite this, it failed to honour its obligations under the agreement. Considering the above, I am of the view that the plaintiff is entitled to rescind the contract between the parties. 9.23 I now come to the claim for damages as pleaded for legal fees, agency fees, profits in form of rentals and lease fees. There is no evidence to prove t.hat legal fees and agency fees in the sums of USD49,000.00 and USD52,000.00, respectively were paid. These two claims fail. As regards the lease fees, the letter at page 36 of the plaintiffs bundle of documents shows that the plaintiff lost USD80,000.00 in lease fees . Further, Mr, Walsh's evidence both in his evidence in Chief and cross examination remains unchallenged. I, therefore, find that it has proved this claim for USD80,000.00 lease fees. 9.24 As regards the claim for mesne profits in form of rentals, the plaintiff contends that a square metre in the area where the -J43- • building is located is USD12 per month and that the area occupied by the defendant is 3000 square metres. 9.25 However, it is a settled principle of law that mesne profits are only applicable in cases where there is a landlord and tenant relationship. (See: G. F Construction Limited (1976) v. Rudnap (Zambia} Limited and Unitechan Limited.(27) 9.26 In the present case, there is no landlord and tenant relationship between the parties. Therefore, the plaintiff is not entitled to mesne profits. However, it is not in dispute that the defendant took possession of the building shortly after paying the initial instalment of USDS00 ,000.00 after 22n d February, 2018 and remains in occupation to date. It follows that the defendant has had the benefit and use of the premises without payment. Therefore, the plaintiff is entitled to be compensated in equity for the loss of use of its property during the period the defendant occupied it until it vacates. In making this decision, I am guided by the decision of the Court of Appeal in London Ngoma and Others v. LCM Company Limited<24 ) in which the Court stated- ''However, equity demands that the respondent be compensated for having been deprived of the use of the properties from the year 2000 to date ... -J44- We therefore , award the respondent damages for loss of use of the properties from 2000 until the appellants vacate the premises such damages to be assessed by the Deputy Registrar of the High Court.'' 9.27 Likewise, I, therefore, award the plaintiff damages for loss of use of its premises from the date of possession oft.he property to the day when it vacates. These damages are to be assessed by the Registrar of this High Court. 9 .28 The next relief sought is for an order that the defendant forfeits money paid towards the purchase consideration. The unchallenged evidence on record is that the defendant paid USDl,200,000 .00 since execution of the contract. According to special condition number 10 of the contract, the initial deposit of USDS00,000 .00 was non-refundable. This clause states that- '' ... The initial deposit payment of $500 ,000 is non-refundable in the event of default by the purchaser in subsequent years." 9.29 In the 2 n d Addendum at page 60 of the same bundle , the following is stated: ''In the event of default the buyer wil l forfe it all sums paid thus far." 9.30 The above clauses are clear and were agreed. It follows that the p arties are bound. Therefore, the USD 1,200,000.00 was agreed to be forfeited and I order accordingly. -J45 - ~ 9.31 The next relief is for damages for breach of contract. The evidence on record is clear that the defendant breached the contract between the parties. The plaintiff is, therefore, entitled to damages. I award the plaintiff damages for breach of contract to be assessed by the Hon. Registrar of this Court. 9.32 I now come to the counter-claim. It is worth noting that the defendant did not adduce any evidence in support of its counter-claim. Therefore, the pleadings and the evidence adduced by the plaintiff are what will determine whether the counter-claim has merit. 9 .33 The first relief sought by the defendant is for rescission of the contract. This issue has already been dealt with above and rescission has been granted as pleaded by the plaintiff. 9.34 The next relief sought by the defendant is for a refund of USDl,200,000 paid to the plaintiff. I have already found that the plaintiff is entitled to retain this money as that is what was agreed. This relief therefore fails. The alternative claim of a refund of USD700,000 also fails for the same reason. Due to the defendant's default, the plaintiff is entitled to retain all the sums paid towards the contract as agreed. From the above, the defendant's counter-claim fails. -J46- • 9 .35 Therefore, I find that the plaintiff has proved its case on a balance of probability and I a ccor dingly enter judgmen t in its favour a s follows: 1. The plaintiff is granted the order sought for rescission of the contract; 2. The plaintiff is granted damages for loss of use of the property from date of possession to date of vacation from the premises. These damages are to be assessed by the Registrar of this Court. 3. The plaintiff's claim for property fees paid to ACSSZ of USDB0,000 is granted; 4. The order of forfeiture of money paid by the defendant towards the purchase consideration of the lease amounting to USD1 ,200,000 is granted; 5. The plaintiff is awarded damages for breach of contract to be • assessed by the Registrar of this Court. 6. The plaintiff is awarded interest on the sums awarded and any sums found due by the Hon. Registrar after assessment at the Secured Overnight Lending Rate (SOFR) from date of the writ of summons to date of full payment; 7. The defendant is given 30 days from date of this Judgment to vacate the premises; and 8 . I award costs to the plaintiff. These are to be taxed in default of agreement. Delivered at Lusaka this 22nd day of July, 2025. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • K. E. Mwenda-Zimba HIGH COURT JUDGE -J47-