Shashikant Devraj Vaghela ( (Sued in his personal capacity and in his Capacity as Administrator of the Estate of Dilip Devrej Vaghela) and Anor v Ndola Stationers Ltd and Anor (Appeal No.122 of 2021) [2023] ZMCA 194 (2 August 2023)

-· IN THE COURT OF APPEAL OF ZAMBIA JaH.-=-N · 122 of 2021 HOLDEN AT LUSAKA ==SDICTIO~ l-4 r % ,~1 OJ A. Po / _ ~- - ,-- ~\) tie~ -r, 8 · f,,.1 --- *,~;~~:;;,~tJ SHASHIKANT DEVRAJ VAGHELA (Sued in ' ,,iJ• . his personal capacity and in his Capacity as Administrator of the Estate of Dilip Devrej Vaghela) . sT.-APPELLANT MUKUBA MOTORS LIMITED 2NP APPELLANT AND NDOLA STATIONERS LIMITED MANHARLAL HIRJI PATEL 1 ST RESPONDENT 2ND RESPONDENT CORAM: Chashi, Majula and Patel, JJA ON: 14th June and 2 nd August 2023 For the Appellants: A. J Shongo., . Jnr SC, and l'f. 1Vg'andu, .ndessrs Sha.mwana and Company and K .• nd. G. Chisanga., .ndessrs Kl\lIG Chisanga. Advocates For the Respondents: N. K. Mubonda, Messrs D. H. Kemp and Co. CHASHI JA, delivered the Judgment of the Court. JUDGMENT Cases referred to: 1. Garry Davies Chibangula v Musesha Chitundu Joseph Kunkuta and Chisamba Mable Mwansa - CAZ Appeal No. 46 of 2018 2. Zambia National Holdings Limited and United Independence Party v The Attorney General ( 1993 / 1994) ZR, 115 3. RE: Pan Electronics Limited and Savvas Panayiotides and Others v Andreas Miltiadous and Others (1988/ 1989) ZR, 19. 4. Moriarty v Regent's Garage & Co (1921) 1 KB 423 5. Re George Newman & Co Ltd (1985) 1 Ch 674 6. Re Duomatic Ltd (1969) 2 Ch 365 7. Lyons Brooke Bond (Zambia) Limited v Zambia Tanzania Road Services Limited (1973) ZR, 317 8. The Attorney General vs Marcus Kampumba Achiume (1983) ZR, 1 9. Farkas v Bedic (2016) O. J 474 (CA) 10. Lavelle v Lavelle (2004) EWCA (CA) 11. Pecore v Pecore (2007) sec 17 12. Cavmont Capital Holding Plc v Lewis Nathan Advocates (Suing as a firm) SCZ - Judgment No 6 of 2016 13. Gibbon v Mitchell and Others (1990) 3 ALL ER, 338 14. Friday Mwamba v Sylvester Nthenge and 2 Others - SCZ Judgment No. 5 of 2013 15. The Rating Valuation Consortium and Another v The Lusaka City Council and Another (2004) ZR, 109 16. Edman Banda v Charles Lungu - SCZ Selected Judgment No. 22 of2017 J:J 17. B. P. Zambia Plc v Zambia Competition Commission and Others• SCZ Judgment No 22 of2011 18. YB and F. Transport Limited v Supersonic Motors Limited - SCZ Judgment No 3 of 2000 19. Re Elgindata Limited (No. 2) (1993) 1 ALL ER, 232 20. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR, 172 21. Zambia Telecommunications Company Limited (Zamtel) v Aaron Mweene Mulwanda and Another - SCZ Judgment No 7 of 2021. 22. Nsansa School Inter Education Trust v Gladys Mtonga Musamba (2010) ZR, 457 23. Holmes Limited v Buildwell Construction Company Limited ( 1973) ZR, 97 24. Carver Joel Jere v DVR/SGT Shamayuwa and Attorney General ( 1978) ZR, 204 25. Clement H Mweempe v The Attorney General, International Police and Avis Rent a Car (2012) Vol 2, ZR, 155 26. Khalid Mohammed v The Attorney General (1982) ZR, 49 27. Owen (trading as Max Owen Associates) v Pugh Beamish and Another (1995) 3 ALL ER, 345 28. Photo Bank (Z) v Shengo Holdings Limited (2008) Vol 1, ZR, 29. Attorney General v Seong San Company Limited (2013) Vol 2,ZR,372 30. Road Development Agency v Agro Fuel Investment Limited - CAZ Appeal No. 114 of 2019 .. • -J4- 31. General Nursing Council of Zambia v Mbangweta (2008) Vol 2,ZR, 105 32. Susan Mwale Harman v Bank of Zambia- SCZ Appeal No. 191 of2015 33. Peter Ndungu Njenga vs. Sophia Watiri Ndungu [2000) eKLR 34. Doyle B. Kapambwe v Machona Kapambwe, Henry Machina and Rose Madina Kamungu - CAZ Appeal No. 143 of 2017 Legislation referred J;_9.;_ 1. The Companies Act (repealed), Chapter 388 of the Laws of Zambia 2. The High Court Rules, Chapter 27 of the Laws of Zambia Other works referred to: 1. Halsbury's Laws of England, 4th Edition, Volume 48 1.0 INTRODUCTION 1. 1 This is an appeal against the decision of Honourable Madam Justice M. C. Mulanda, delivered on 28th May, 2020. 1.2 In the said Judgment, the learned Judge found that a resulting trust had been created in favour of Manharlal Hirji Patel (2nd Respondent) and that he retained beneficial .. -J5- ownership of 49% of the shareholding in Mukuba Motors Limited (2nd Appellant). 1.3 The learned Judge further found that the 2nd Respondent's removal as director in the 2 nd Appellant was invalid and ordered that he be reinstated. 2.0 BACKGROUND 2 .1 The brief background to this appeal is that, the 1 •1 and 2nd Respondents, who were the plaintiffs in the court below, commenced an action against the 1 •t and 2nd Appellants by way of an amended writ of summons claiming the follo,ving reliefs: 1. A declaration that the 1" Appellant in his personal capacity and in his capacity as Administrator of the estate of Dilip Devraj Vaghela holds 40% of the shares in the 2 nd Appellant company as trustee of the 1st Respondent Company. 2. An order that the 1 st Appellant do transfer to the 1st Respondent 40% of the shares in the 2 nd Appellant. -,/6- 3. In the alternative to (11 and (21 above: (i) An Order setting aside the share transfer to the deceased of all the shares previously held by the 2 nd Respondent in the 2"d Appellant on 17th October 1992 and at any rate 49% of the shares in the 2 nd Appellant and (ii) An Order that 49% of the shares in the 2 nd Appellant be restored to the 2 nd Respondent 4. A declaration that the purported removal of the 2nd Respondent as director of the 2 nd Appellant company was and is invalid and that the 2nd Respondent still is a director of the 2 nd Appellant company. 5. An inquiry of what property or properties of the 2 nd Appellant has been let to third parties including the terms thereof and an inquiry as to and an account of the rentals if any for such properties. 6. Payment to the 2 nd Respondent by the 2 nd Appellant for a sum of money at the rate of US$ 2000.00 per month or the Zambia Kwacha equivalent or any amount that the Court may deem fit for the work done for and on behalf of the 2 nd Appellant by the 2 nd Respondent between October 1992 and December 2004. 7. Interest on (6) 8. Further or other relief as is just 9. Costs 2.2 According to the amended statement of claim, the 2 nd Respondent was up until 17th October, 1992, the managing director and shareholder in the 2nd Appellant company with a shareholding of 49%. The 2 nd Respondent was also the managing director and majority shareholder in Ndola Stationers Limited (l•t Respondent). 2.3 The pr Appellant and subsequently, Dilip Devraj Vaghela (the deceased) were registered shareholders of the 2nd Appellant holding its entire shareholding in trust. .. 2.4 That on or about 9 th October, 1992, at a meeting of the -J8- directors of the 2nd Appellant, it was resolved that the 2 nd Respondent, a British national, transfer his shares in the 2 nd Appellant company to the deceased, a Zambian national, for purposes of facilitating the acquisition of real property in Zambia (under the belief that a non-Zambian entity could not hold title). It was further resolved that the 1st Appellant and the deceased were to hold the en tire shareholding of the 2nd Appellant in trust for the following beneficiary companies: (i) 1st Respondent (40%) (ii) Thita Engineering Services Limited (33%) (iii) Ndola Printers Limited ( 17%) (iv) Surma Stationers Limited ( 10%) 2.5 Towards that end, the 2°(1 Respondent on 17th October 1992 transferred 49% of his shares to the deceased ,vithout receiving any consideration. It was further averred that the 1 •t Respondent company, as one of the beneficiary companies, injected monies in the 2nd Appellant in excess -J9- of K200,000,000.00 between 20th October 1992 and 301!1 November 2004. 2_6 Based on the foregoing, the en tire shareholding of the 2nd Appellant belonged to the beneficiary companies. That, however, the l •t Appellant despite repeated requests, refused to transfer 40% of the shares to the 1st Respondent. 2.7 It was further averred that, despite the 2nd Respondent's active role in furthering the 2 nd Appellant's business interests, he was on 14,h August 2006, removed as director of the 2 nd Appellant's company contrary to section 211 of The Companies Act (repealed) 1 and the Articles of Association. That in addition, the 1 s• Appellant has since leased the 2 nd Appellant's properties to the prejudice of the 2nr1 Appellant. That the Respondents have since suffered loss and damage. 2 .8 In defence, the 1 •t Appellant admitted that it was a shareholder in the 2nd Appellant, but denied that such shareholding was to be held in trust for any persons. The 1st Appellant further denied being the administrator of the -,JlO- deceased having distributed the estate in full as at 301h May, 2006. 2.9 The Appellants admitted that a meeting of members was held by the 2nd Appellant where it was notified of the decision of the 2 nd Respondent to transfer his shares to the deceased, but that such transfer was merely a gift which was given voluntarily without undue influence. The Appellants denied the existence of any arrangement for the 1 •t Appellant and the deceased to hold shares in trust for any persons. 2.10 It was contended that, even though the 2 nd Respondent did not receive any consideration for the transfer of his shares, he was allowed to operate the affairs of the company and earn an income provided he rendered an account to the shareholders. 2.11 The Appellants further denied any investment by the 1 •t Respondent. They, however, conceded that the manner in which the 2nd Respondent was removed as director was unprocedural and the process to regularise his removal was ongoing. Further, the 2nd Appellant admitted having • -,JI] - leased out :he 2nd Appellant's properties in order :o generate incon1e for the con1pany. 2 .12 By way of counterclain1, the Appel !ants averred that during the Un1e thr:it the 2nd Respondent was operating the r:iffairs of the con1pany. he ,vas entrusted with the custody of certificates of title relating to the 2nc, Respondent's properties and was pern1itted to use the same to further the 2 rd Appellant's business interest. However, the 21:<1 l~espondent hr:is failed to render an account to the company and as a result, he wr:is ren1oved as director of the con1pany. 2.13 In addition, the 1" Respondent cornpany which was in occupation of one of the properties belonging to the 2 nd Appellant, has since refused to vacate the pre1uises. Thr:it hy the Respondents conduct, the Appellants have s1.tffered loss and darnage. The Appellants coun:erclain1ed ::is follows: (i) An order for possession of subdivision B7 of farm Number 748 Ndola wrongfully occupied by the 1st Respondent -J12- (ii) Damages for mesne profits at the rate ordinarily chargeable on the property and such further or other relief as the court shall deem fit to award to the 2'"1 Appellant (iii) An order of specific delivery of certificates of title relating to the properties known as subdivisions B7 of farm number 748 Ndola and Stands Numbers 235999, 2360 and 2378 wrongfully and unlawfully retained by the 2 nd Respondent. 2_ 14 In defence to the counterclaim, the 2nd Respondent contended that he is still authorized to retain custody of the certificates of title in trust for the beneficiary companies. The 2 r>d Respondent denied having received any instructions to utilize the titles to further the interest of the company. 2_ 15 As regards vacating the 2 nd Appellant's property, the 1 sc Respondent averred that, its occupation of the said premises is with the consent and permission of the beneficiary companies. • 2.16 /\ t tria I, the Respondents called two ·witnesses. The 2n,, JLJ Respondent reiterated the averrnents in the amended state1nent of clai1n and added that he was the founder and initiator uf the 2"d /\ppellant company. According to P\V 1 . after having successfully negotiated for a Ma7,da dealership, he shared the idea \\tith the J s: Appellant which culminated into the incorporation of the 2n•' Appellant Cornpany on 21 •1 Septernber, 1992. The 2nd Respondent held 49% of the shareholding ,\·hile the 2 nd Appellant held 2.17 PVv' 1 asserted that it was during the forrnative st.ages of the 2nd Appellant cornpany t.hat it was agreed that the four beneficiary companies ,l\!ould have a stake in the cornpany and that it is fur this reason that. he clicl not receive any consideration for the share transfer beca1.1se it ,l\!as intended to be held in trust for the beneficiary cornpanies as resolved at the meeting of 9,;, October. 1992 which was attended by birnself, the l" Appellant, A. S. Th1.irkur, M. R Patel and M. l Mandhu. 2. 18 Further that all the four beneficiary cornpanies Jl4-- contributed rnonies towards the purchase of properties on behalf of the 2nd Appellant. That even after the 2r:c1 Appellant ceased its operations, the 1st Respondent continued lo rnaintain the properties. All in all, P\Vl rnaintained that the 1$1 Respondent financed the set up and the operations of the 21 " ' Appellant. 2.l9 In cross exarnination, P\Vl adrnitted lhal the share transfer was by way of a deed of gift which was consistent with the 2"• 1 Appellant's articles of association and that as at 17111 October, 1992, the shareholders in the 21:d Appellant were the 1" Appellant and the deceased. He further adrnilled that the beneficiary companies had at no point been allotted the shares in the ratios specified in the 111eeting of 9 1h October, 1992. 2.20 The second witness was .\'loharnmed Mandhu, who testified that his firm Mandhu and Cornpany, pro\·ided accounting, taxation and cornpany secretarial services tu the 1 s, Respondent and that it also provided accounting services lo the 2nd Appellant. That on 8° 1' October, 1992 he ,;: 5 received a call frorn the 2" 1 Respondent requesting hirn lo attend a rnccting of the 2.-.:1 Appellant on 9 1" October, 1992 as cornpany secretary. That in attendance was the 1st Appellant, the 2 11" Respondent, l\.-Tr. Thakur of Thita Engineering Services Limited and Mr. Patel of Ndola Printers. 2.21 According to P\V2. one of the issues discussed in the meeting was the acquisition of property on Presidential Avenue, Ndo\a. That the 2"•· Rcspondenr. informed the rneeting that he had been advised that in order for the co1npany to acquire property, it had lo be ,vholly Zarnbian owned. That it was then proposed that the 2"'1 Respondent, transfer ])is shares to lhc deceased for purposes of acquiring the property. That it was also discussed in the meeting that the deceased and the 1 •: Appellant would hold the shares as non1inees 1n trLLst for the four beneficia,y companies. 2.22 FLLrlhcr in l'v1arch 2008, P\. V2, upon the reqLLesl of tl)e 2 11d Respondent, confirmed that the 1 ,·. Respondent had -,Ji 6- i njec ted a total of K198,591,798 in the 2 11d Appellant pending issuance of shares to the 1 ' 1 Respondent. 2.23 In cross exan1ination, he contended that ,here were no supporting documents to show exactly what the funds from the 1,: Respondent were expended and t.hat he jusr re lied on infonnation given lo him by the 1 s: Responden,. 2.24 The Appellants equally called two witnesses. The first witness was the l"' Appellant who reiterated the avern1ents in the an1ended defence and coL1nlerclain1. In addition, he averred that contrary lo the 2 nd l~espondent's assertions, he was the one that initiated the idea of selling up a company in the motor vehicle trading industry and in partie1.1lar a Mazda dealership, having had good knowledge of the motor industry. According to lhe 2 1 " 1 Appellant, he undertook all the activities necessary for the cotnpany·s incorporation and only shared the idea with the 2"' 1 Respondent beca1.ise he was a good negotiator. That being the initiator of the company, il was agreed that he would have majority shareholding. 2_25 SoJnetime in October 1992, the 1 ,L Appellant was informed by the ~'" 1 Respondent that he wanted to transfer his shares to the deceased by way of deed of gift. That on 17c1, October, 1992, the shares were transferred to the ckceascd and share certificate was issued. That after the dernisc of the deceased, the 1 s, Appellant proceeded to transfer the deceased's shares to his beneficiary Rishi Devraj Vaghela. That therefore, the current shareholders of the 2,:<1 Appellant arc the 1 s: Appellant and Rishi Devraj Vaghela and no other beneficiaries. 2.26 Further that, having distributed the estate, he was no longer administrator of the deceased and should not have been sued in that capacity. D\. Vl denied ever attending a rneeting on 91:, October, 1992. He further denied any invesnuent made into the company by the l" Respondent. That r.he arnounts used to purchase the 2 1 " Appeliant's properties were advanced as a loan fro111 the bank and a Mr. Thurkur. 2.27 D\V2 was Manilal Ranchod Patel, who denied having attended the 111eeting of 9,i-, October, 1992. 3.0 DECISION OF THE LOWER COURT . J}8- 3.] Upon considering the evidence on record and the submissions, the learned Judge formulated seven issues as falling for determination: 1. Whether or not the meeting of 9 th October, 1992 at which it was resolved that the 490,000 shares which were held by the 2 nd Respondent, be transferred to the late Dilip Devraj Vaghela, to hold in trust for the beneficial owners of the 2 nd Appellant listed in the Minutes, took place with all the shareholders listed in the minutes, in attendance. 2. Whether or not the 2 nd Respondent, by transferring his shares in the 2 nd Appellant Company, to the late Dilip Devraj Vaghela, by deed of gift, intended to vest those shares in the said Dilip Devraj Vaghela in trust for the beneficial owners listed in the minutes of the meeting which was purported to have been held on 9 th October, 1992. . J l ~; .. 3. Whether or not the deed of gift which was executed by the 2 nd Respondent, in which his shares were transferred to the late Dilip Devraj Vaghela, can be set aside for mistake of fact/ and or law. 4. Whether or not the companies listed in the minutes of the meeting which was held on 9 th October, 1992, are the beneficial owners of the shares which were transferred to the late Dilip Devraj Vaghela. Under this point, whether or not the 1st Respondent invested in the 2 nd Appellant. Consequently, whether or not the 1st Respondent is a beneficial owner of 40% of the shares in the 2 nd Appellant Company, and whether the court can order that such shares be transferred to the 1 st Respondent. 5. Whether or not, in the alternative, the court can order that 49% of the shares in the 2 nd Appellant can be restored to the 2 nd Respondent. . J20- 6. Whether or not the 2 nd Respondent is entitled to remuneration for the work he performed for the 2 nd Appellant Company as a Director and; 7. Who owns Subdivision B7 of Farm Number 748, Ndola and Stand Numbers 2359, 2360 and 2373 Lusaka? 3.2 In resolving the first issue, the learned ,Judge was of the view that a perusal of the minutes of the meeting purported to have been held on 9t1: October 1992, revealed that the l"' Appellant and D\. V2 were in attendance and both confirmed in their evidence that the names appearing in the minutes referred to them. 3.3 That the Appellants having admitted 1n their pleadings that a 1neeting of shareholders took place, confirmed that indeed such a meeting was held on the stated date. Further, D\. V2 admitted in cross examination that there was no reason for P\. V2 to have wrongly put his name under the list of those who were in attendance. 3.4 The learned ,Judge found that although the Appellants in their pleadings contended that the meeting that was held -. J2 I - was a members' meeting and not a directors meeting, it did not vitiate the fact that a meeting which ,vas attended by both the 1st Appellant and the 2nd Respondent, as the only shareholders ,vas convened. 3.5 In resolving the second issue, the learned Judge found that it was not in dispute that a deed of gift was executed transferring 490,000 shares to the deceased but that the said deed did not specify that the shares ,vere to be held in trust for any beneficiaries. The learned ,Judge was therefore of the view that the question which needed to be resolved is whether or not, despite not executing a trust deed, a trust was created, which ultimately meant that the deceased held the shares in trust for the beneficial owners. 3.6 The learned Judge then looked at various authorities on the creation of trusts including our decision in Garry Davies Chibangula v Musesha Chitundu Joseph Kunkuta and Chisamba Mable Mwansa1 in which we held that a trust maybe created in one of two ways namely by express terms in a conveyance instrument such as a . . -.122 device or bequest or by way of a resulting or constructive trust. 3. 7 According to the learned Judge, there being no indication either in the deed of gift or the shareholders' register that the shares were to be held in trust, it followed that there was no express trust created. The learned Judge then went on to consider whether or not from the circumstances, a resulting trust was created. According to the learned Judge, based on our decision cited above, the court in construing whether or not a resulting trust was created, will consider the following: 1. \Vhether the transfer was made with corresponding consideration 2. Whether the transferor (the 2 nd Respondent) intended to make a gift or to abandon all interest in the property. 3.8 The learned Judge found that the transfer in issue was made without consideration. As regards to whether the share transfer was intended to be a gift, the learned Judge believed the 2ric1 Respondent's evidence for the reasons that -. J2:~- first!y; the deceased did not provide value for the shares in issue, secondly, despite the share transfor, the 2::, 1 Respondent continued to exercise authority and control over the affrtirs of the 2:1r1 Appellant company while the deceased played no role and thirdly, the minutes of the rnceting of 9,i: October 1992, which resolved that the shares would be held in trust. She was of the view that the onus was therefore, on rhe transferee to de1nonstrate that a gift ,vas intended and that in casu, the Appellants failed to discharge that burden. 3.9 The learned ,Judge found that the 2"' 1 Respondent did not intend, expressly or impliedly, to part with his legal interest in the property permanently at the time of giving the shares to the deceased or to abandon all interest in the property. That while the 2 1 :1 Respondent transferred his shares to rhe deceased by executing a deed of gift, he still rnaintained an equitable interest in the property. She was satisfied that a resulring trust was created whereby the deceased was to hold the 2'"1 Respondent's shares in the -J24- 2nd Appellant as a nominee and in trust for the beneficial owner(s). 3.10 Coming to the third issue, whether the deed of gift should be set aside, the learned Judge looked at various authorities on when a deed of gift may be set aside including the cases of Zambia National Holdings Limited and United Independence Party v The Attorney General2 and RE: Pan Electronics Limited and Savvas Panayiotides and Others v Andereas and Others3 and was of the view that based on the evidence, the 2 nd Respondent executed the deed under a mistake of both law and fact. Consequently, the learned Judge set aside the deed of gift and held that the deceased held the shares as a nominee. 3.11 Regarding the fourth issue, ,l\lhether or not the 1st Respondent company is beneficial owner of 40% shares in the 2nd Appellant company, the learned Judge \l\las of the view that the question she needed to resolve is whether the four companies listed in the minutes were beneficial owners of the shares transferred to the deceased. The J25- learned Judge opined that it was not clear ar. whar. stage the 1« Respondent and the rest of the con1panics became beneficial owners of the 2nc Appellant. 3.12 That at incorporation, there were only two shareholders, narndy, the 2:1c1 Respondent and the 1,;, Appellant and there was nn 1nention nf any of the benefidary cornpanies. That therefore, by 201 October 1 <J<J2. r.he 1"' Respondent had not invested anything in the 2"'1 Appellant tn warrant the issuance of shares to it. She found thar. the Respondents failed to prove nn a balance of probabilities that the four companies were beneficial o,vners of the 2nd l~espondent. She further found that the 2:1o: Respondent retained beneficial o,vnership of the 49% of the shares in r.he 2"d Appellant company ,vhich were held in trust for him by r.he deceased. 3. lJ Having found that the 1" Respondent did not O\Vrl shares in the 2"d Appellant, the next question the courr. considered was whether nr nnt the 1 •1 Respondent invested n1onies in the 2 1" 1 Appellant warranting an allotment of shares. According tn the learned Judge, frorn the scrutiny I -J26- of the documents adduced by the Respondent, it was difficult to ascertain whether the payments were made on behalf of the 2 nd Appellant or were normal expenditure for the 1st Respondent. She therefore, found that the monies expended by the 1st Respondent could not be deemed to have been an investment by the 1st Respondent in the 2 nd Appellant. 3.14 That in any event there was no agreement between the shareholders or directors that the expenses by the 1st Respondent on behalf of the 2nd Appellant were to be treated as an investment in consideration of allotment of shares. There was therefore, no basis upon which the court could make an order for the issuance of shares to the 1st Respondent. 3.15 Coming to the fifth issue, on the restoration of 49% of the shares in the 2nd Appellant to the 2nd Respondent, the learned Judge was of the view that having found that a . resulting trust was created and that the four companies were not beneficial owners of the shares and also having 'i found that the 2 nd Respondent retained the beneficial , -J27- o~nership of the 49% of the shares and consequently setting aside the share transfer, the court ordered that the said 49% shareholding be restored to the 2nd Respondent. 3.16 Further that the share certificate issued to Rishi Dilip Vaghela be cancelled. As a result, the learned Judge held that the shareholders of the 2 1 " 1 Appellant shall be as they were at incorporation, namely, the 1 sl Appellant holding 51 % while the 2nd Respondent retains the 49% shareholding. 3.17 As regards, the removal of the 2 nd Respondent as director, the learned Judge held that such removal was illegal and void. The Judge ordered that the 2nd Respondent should retain his position as director in the 2nd Appellant. 3.18 Regarding the sixth issue, the 2 nd Respondent's claim for remuneration for the work done for and on behalf of the 2nd Appellant, the learned Judge relied on the cases of Moriarty v Regent's Garage & Co4 , RE George Newman & Co Ltd5 and RE Duomatic Ltd6 and held that a director, not being a servant of the company is not entitled to any claim for remuneration or quantum meiuit for the work -,)28 done for the company unless he can show the existence of a contract or agreement from which the court can infer his entitlement. Based on the above authorities, the learned ,Judge denied the 2 nd Respondent's claim. 3 .19 Coming to the last issue dealing with the ownership of subdivision B7 of Farm 748 Ndola and Stand Numbers 2:358, 2:360 and 2373 Lusaka, the learned Judge was of the view that since the 2 nd Appellant is a legal person at law, with a separate legal personality from its shareholders, it is capable of owning property in its own name. Thus, the properties acquired by the 2nd Appellant belong to the 2nd Appellant. Therefore, all certificates of title in respect of all the properties shall be kept by the 2 nd Appellant company itself. 4.0 THE APPEAL 4.1 Dissatisfied with the decision of the lower court, the Appellants have appealed to this Court advancing eleven grounds of appeal couched as follows: 1. The court below misdirected itself in law and fact when it held that a meeting of shareholders was > -,129- convened on 9 th October, 1992 and that all the shareholders were in attendance. 2. The court below having found as a fact that the deed of gift executed by the 2 nd Plaintiff on 17th October, 1992 does not state that Dilip Devraj Vaghela was to hold the shares in trust for any of the beneficial owners misdirected itself in law and fact when it reasoned that a resulting trust was created whereby Dilip Devraj Vaghela was to hold the 2 nd Plaintiff's shares in the 2"d Defendant Company as a nominee and in trust for the beneficial owner(s). 3. The court below misdirected itself in law and in fact when it held that the 2 nd Plaintiff transferred his shares to Dilip Devraj Vaghela pursuant to clause 5 of the minutes of the meeting of directors of Mukuba Motors Limited held on 9 th October, 1992 where it was resolved that the late Dilip Devraj Vaghela was to hold the shares in trust for the beneficial owners. .. -J30 4. The holding by the court below that the reason for the resolution under Clause 5 of the Minutes of the meeting of the directors of Mukuba Motors Limited held on 9t1t October, 1992 placing the 2"d Plaintifrs shares in Dilip Devraj Vaghela to hold in trust was meant to aid the 2 nd Defendant in the acquisition of real property was wrong at law and in fact as it is at variance with the said resolution and the evidence on record. 5. The court below having correctly found as a fact that there was no evidence proving that the 1st Plaintiff together with other companies listed in the minutes of 9 th October, 1992 were beneficial owners of the 2"d Defendant company misdirected itself when it held that a resulting trust was created whereby Dilip Devraj Vaghela was to hold the 2 nd Plaintiff's shares in the 2 nd Defendant Company as a nominee and in trust for the beneficial owners. 6. The court below misdirected itself in law and fact when it held that the 2 nd Plaintiff did not intend, expressly or impliedly to part with his legal interest in the property permanently at the time of giving the shares to Dilip Devraj Vaghela or to abandon all interest in the property. 7. The court below misdirected itself in law and fact when it held that the Defendants have not demonstrated that the transfer was intended to be a gift. 8. The court below misdirected itself in law and fact when it held that the 2 nd Plaintiff executed the deed of gift under a mistaken belief of both law and fact that by vesting his shares in the deceased the shares would be held in trust for the beneficial owners. 9. The court below having correctly found as a fact that the 2 nd Defendant as a legal person at law which is a separate legal entity from its shareholders is capable of owing property in its -,132- name and that all certificates of title in respect of all the properties which were acquired by the 2 nd Defendant shall be kept by the 2 nd Defendant misdirected itself when it refused to award all the 2 nd Defendant's counterclaims including the costs claimed in respect of the counterclaims. 10. The court below having found as a fact that the Plaintiffs have failed to prove on a balance of probabilities that the 1st Plaintiff is the beneficial owner of 40% of the shares in the 2 nd Defendant company ought to have condemned the 1st Plaintiff in costs. 11. The Court below misdirected itself in law when it failed to adjudicate on all matters in controversy between the parties in the counterclaim. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 Counsel for the Appellant, Mr. Shonga, State Counsel, relied on the filed heads of argument which he augmented with brief oral submissions. It is also worth noting that a perusal of the arguments shows that grounds three and > -,J33 four have since been abandoned leaving a total of nine (9) grounds. 5.2 In support of ground one, it was submitted that, after hearing conflicting evidence from the parties as to the nature of the meeting of 9,h October 1992, the learned trial Judge, should have found the evidence proffered by the Appellants' witnesses more credible. This is because DW2, one of the Appellants' witnesses, was a shareholder in one of the Companies purportedly intended to be the beneficial owners of the shares while PW2, who testified on behalf of the Respondents was not a shareholder. 5.3 Further, the Appellants argued that the learned Judge incorporated certain words into her findings appearing at pages 285 and 286 of the record, that were not included in the pleadings when proffering her understanding of what was being conferred therein. 5.4 According to the Appellants, the learned trial Judge erred when she found that the Appellants had admitted to the meeting of members held on g,h October 1992 when the averments in the Appellant's defence only states that a .• -,/34- meeting was held. The defence neither contained a date for the meeting nor a reference to a meeting of directors. The case of Lyons Brooke Bond (Zambia} Limited v Zambia Tanzania Road Services Limited7 was relied on to the effect that a defendant must specifically plead any matter that he intends to rely on. 5.5 In support of grounds two and five, it was submitted that the learned trial Judge contradicted herself by holding at page 288 that the deed of gift executed by the 2 nd Respond en l on 17th October 1992 did not state that the deceased was to hold the shares in trust for any beneficial owner but then went on to state at page 296 and 297 of the record that due to the absence of consideration on the part of the deceased for the shares in issue, she was inclined to believe the 2 nd Respondent's version that he intended to vest the said shares in the deceased in trust for the beneficial owners. 5.6 It was submitted that the learned Judge further contradicted herself at pages 303 and 308 where she staled that she did not find any evidence proving that the .• -J35- 1 st Respondent, together with the other companies listed in the minutes of the meeting of 9 th October 1992 were beneficial owners of the 2nd Appellant company. We were urged to interfere with these findings as they are clearly perverse. The case of The Attorney General vs Marcus Kampumba Achiume8 was relied on in that regard. 5. 7 In support of ground six, it was argued that in arriving at her decision that the 2°d Respondent did not intend to part with his legal interest in the property, the learned Judge relied on the oral testimony of the 2nd Respondent and the cases of Farkas v Bedic9 , the Garry Davis Chibangula case, Lavelle v Lavelle 10 and Pecore v Pecore 11 . According to the Appellants, it is clear from the said cases that the law will raise a presumption in the transferor's favour that the transferor did not intend to part 'with the beneficial interest in the property where the property is transferred gratuitously and there is no evidence that the transferor intended to make a gift or abandon all interest in the property. 5.8 In casu, the share transfer appearing at pages 476 of the -J36- record executed by the 2 nd Respondent, was clearly marked as a deed of gift and as such, the intention of the 2 nd Respondent to part away with the shares was clear-cut and the shares being a gift, there was no need for any consideration. It was argued that the learned Judge having analysed the said document, failed to properly apply the law as enunciated in the authorities relied on. The cases of Cavmont Capital Holding Pie v Lewis Nathan Advocates (Suing as a firm) 12 , Gibbon v Mitchell and Others13 and Friday Mwamba v Sylvester Nthenge and 2 Others 14 were cited. 5. 9 Further that the Respondents never pleaded mistake, duress or fraud in respect of the share transfer nor was evidence led to prove the same in order to warrant the setting aside of the share transfer. 5.10 Grounds seven and eight were argued together and it was submitted that the Appellants not having expressly pleaded, either by way of defence or counter claim in the court below that the 2nci Respondent transferred his 49'1/o shares to the deceased by way of deed of gift, the learned trial ,Judge erred by holding that r.he onus was on the i\ppellants to demonstrate thar. a gift was inr.encled. 5. l l We were invited r.o take note r.ha r. in paragraph 5( 1 j of r.he amended statement of claim, appearing al pages 1025 lo 1031 uf the record and PW l's exan1ination-in chief at pages 1561, l 584 and 1623. it was the 2nd Respondent who referred tu the deed uf gifr. It was further subrnitted that pages 1715, 1717, 1718,1793,179'1 and 1795 show that the l" Appellant answered questions put lo him in exarninalion in chief and cross-exa1nination fo~lowing PW 1 's confirmation that he executed a deed of gift and not in support of any defence. 5.12 It was argued that the 1st Appellant did not have to demonstrate that a gift ,vas intended as the deed of gift is self-explanatory. It was contended that the duty of the court below was to interpret the deed within its four corners and not r.o interpret it in light of or in conjunction with r.he test1n1uny of PVvl rhereby varying and contradicting the text of the agreement. The cases of .• -J38- Cavmont Capital Holding Pie v Lewis Nathan Advocates (Suing as a firm) 12, The Rating Valuation Consortium and Another v The Lusaka City Council and Another15 and Edman Banda v Charles Lungu16 were cited to fortify the preceding argument. 5.13 It was further submitted that the lower Court erred by relying on the Canadian case of Pecore v Pecore and disregarding Supreme Court decisions like those cited above, that speak to discerning the intention of parties to an agreement. 5.14 The Appellants submitted that, the learned trial Judge erred when she held that the deed of gift was executed under a mistaken belief of both law and fact, that by vesting his shares in the deceased, the shares would be held in trust for the beneficial owners and holding that the deceased held the shares in issue as a nominee when it is clear from a reading of the amended statement of claim at pages 1025 to 1031, that no single paragraph alleged mistake of both law and fact and neither did PW 1 and P\V2's testimonies disclose mistake. -J39- 5.15 In support of ground nine, it was argued that the learned trial Judge erred v.rhen she held that the counterclaim had failed when she had earlier observed that the 2 r.d Appellant was the owner of all the property acquired by it. 5.16 In support of ground ten, it was submitted that the learned trial Judge having found that the 1st Respondent was not a beneficial owner of 40% shares in the 2"d Appellant, should have condemned the 1st Respondent in costs in line with established principles on the awarding of costs. 5.17 It is argued that the holding by the court below is a clear testimony that the Appellants successfully defended the Respondents' claim set out in head of claim 2 of the amended statement of claim. 5.18 It was contended that the Respondents only succeeded -in head of claim 3 v.rhile the Appellants succeeded in defending heads of clain1 1,2 ,6, 7 and 8 of the amended statement of clai1n, but ,vas not awarded costs against the Respondents. Order 40 rule 6 of the High Court Rules2 and the cases of B. P. Zambia Pie v Zambia Competition Commission and others17 and YB and F Transport -,140- Limited v Supersonic Motors Limited18 were relied on to argue that a successful party must not be deprived of costs. 5.19 In his oral submissions under this ground, State Counsel, Mr. Shonga, beseeched us to consider departing from the normal principles on costs and consider the circumstances of the case. Counsel referred us to the case of RE Elgindata Limited19 where the court discussed instances in which a successful party may be disentitled of costs. 5.20 The gist of ground eleven is that the Court below did not adjudicate on the Appellants' counterclaims contrary to the holdings in Wilson Masauso Zulu v Avondale Housing Project Limited:20 and Zambia Telecommunications Company Limited (Zamtel) v Aaron Mweene Mulwanda and Anor:21. 5.21 We were therefore urged to award the Appellants the reliefs sought in the counter-claim on the basis of the finding made by the court below that the 2 nd Appellant is entitled -,J4 l- to possession of the title deeds relating to properties acquired under its name. 6.0 ARGUMENTS OPPOSING THE APPEAL 6.1 rvrr :Vlubonda, Counsel for the Respondent, relied on the filed written heads of argun1er.:t and augmented the same with brief oral submissions. 6.2 In response to ground one, it was submitted that the Appellants in paragraph 5 of their amended defence and counterclain1, expressly adrnitted that a meeting took place ar.:d that the said meeting was for the members of the 2 nd Appellant and not directors as alleged by the Respondents. Therefore, the learned . Judge ,vas on fi:-n1 ground when she fou1:d that it had been settled in the pleadings that a meeting of 9,:, October, 1992 took place. That paragraph 6 of the arnended defence did not refute the adn1ission made by the AppeJa1:ts. 6.3 In addition, the learned ,Judge correctly considered the evider.:ce of DW2 in cross exa1nination appearing at page 1894 of the record where he stated that there ,vas no reason why P\V2 would wrongly put his name under the .. -J42- list of those in attendance. This piece of evidence was critical to the attendance of the meeting of 9 th October, 1992. On the other hand, DWI, during cross examination was untruthful on certain material aspects such as the status of the deceased in the shareholding of the 2 nd Appellant and the learned Judge correctly took note of his demeanor at page 1843 of the record. 6.4 It was submitted that, the learned Judge having had the opportunity to hear and see the witnesses, this was not an appropriate case in which the findings of the learned Judge should be interfered with. We were referred to the case of Nsansa School Inter Education Trust v Gladys Mtonga Musamba22 • 6.5 Coming to grounds two and three, we were referred to the Judgment of the learned Judge and specifically to pages 288, 293, 294, 295 and 298 of the record and submitted that the learned Judge properly reviewed and evaluated the evidence before her regarding the transfer of shares through deed of gift. It was further submitted that at the time the deed of gift was executed, section 52 of The -J43· Companies Act (repealed) 1 prohibited the entry of trusts on the register of members or the documents receivable by the Registrar. In support thereof, the Pan Electronics and Savvas Panayiotides case was cited. It was submitted that the findings by the learned Judge were not contradictory in any way. 6.6 In response to ground six, it was submitted that the finding by the learned ,Judge was arrived at after an extensive review and evaluation of the evidence. A perusal of pages 286 and 310 of the record reveals that the learned Judge did not only consider the oral evidence of 2 nd Respondent but also considered the Appellants'. The reasons for arriving at her finding were clear, extensive and were supported by the law. 6. 7 It was further submitted that the learned Judge was on firm ground when it found that the 2nd Respondent never intended to permanently part away with his shares. According to the Respondents, a deed of gift cannot be considered 1n vacuum and the relevant factual background leading to its execution arc important in -J44- determining the true intention of the gift. In casu, the deed of gift \Vas not intended to express the ·whole agreement between the parties and as such, extrinsic evidence was required to provide the necessary factual background. In support thereof, the case of Holmes Limited v Buildwell Construction Company Limited23 and the Friday Mwamba case were cited. 6.8 It was further argued that contrary to the Appellants' argument, the material facts constituting mistake ·were pleaded in the amended statement of claim under paragraphs 5 and 6. It was contended that it was the acquisition of real property in Zambia by the 2 nd Appellant ·which formed the material facts for the mistake of law and fact. In addition, the 2 nd Respondent also led evidence at trial confirming the mistake and this evidence \vent unchallenged. The learned Judge cannot therefore be faulted for considering this evidence when she arrived at her decision. The cases of Carver Joel Jere v DVR/SGT Shamayuwa and Attorney General24 and Clement H -J45 Mweempe v The Attorney General, International Police and Avis Rent a Car25 were cited. 6. 9 In response to ground seven and eight, it was submitted that the learned Judge arrived at its decision after reviewing and evaluating the evidence surrounding the share transfer to the deceased by deed of gift and correctly arrived at the conclusion that the transfer was not intended to be a gift. 6 .10 It was contended that in the absence of any consideration for the shares, the onus was on the transferee to demonstrate that a gift was intended. In the present case, the Appellants failed to discharge the burden of proof. Therefore, the learned Judge correctly interpreted the deed of gift in light of all the factual background. 6.11 It was further submitted that the learned trial Judge properly analysed the evidence before her when considering whether the deed of gift ought to have been set aside. She gave detailed reasons and correctly directed herself to the law and facts. 6.12 Coming to ground nine, it was submitted that the learned -,146- Judge's decision to dismiss the Appellant's counterclaim was correct as the Appellants did not adduce any evidence at all to support it. In support thereof the cases of Khalid Mohammed v The Attorney General26 , Owen (trading as Max Owen Associates) v Pugh Beamish and Another27 and Photo Bank (Z) v Shengo Holdings Limited28 were cited. 6.13 In response to ground ten, it was submitted that the 1•1 and 2nc1 Respondents were linked and arose from the same facts and advanced the same reliefs, therefore if costs were ordered against one party only, such order would negate the net effect against the Appellants. It was submitted the claims the Respondents succeeded on constituted the substantive part of the issues that fell for determination, as such, they were the successful parties in the court even though they did not succeed on each claim. Therefore, the learned Judge correctly granted the Respondents costs. Reliance was placed on the cases of Attorney General v Seong San Company Limited29 , Road Development -. J47- Agency v Agro Fuel Investment Limited30 and General Nursing Council of Zambia v Mbangweta31 . 6.14 In response to ground eleven, it was submitted that arguments in response to ground nine equally applied to ground eleven. In addition, it was submitted that the learned Judge was on firm ground when it dismissed the counterclaim as there was no evidence to support it. 7.0 ANALYSIS AND DECISION OF THE COURT 7.1 We have considered the evidence on record and the submissions by Counsel for both parties. We have also considered the impugned Judgment. 7 .2 Upon a perusal of the grounds of appeal, we are of the view that they are all attacking findings of fact. Based on the Wilson Masauso Zulu case and subsequently applied in the case of Susan Mwale Harman v Bank of Zambia32 , an appellate court can only reverse findings of fact made by the trial Judge where the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were -J48- findings which on a proper view of the evidence, no trial court acting correctly could reasonably make. 7.3 In ground one, the Appellants attack the learned Judge's finding that a meeting of shareholders was convened on 9 th October, 1992 and that all shareholders were in attendance. The Appellants allege that they did not attend the purported meeting of 9th October, 1992 and that while it was admitted in their defence that a members meeting was held, the date of the said meeting was not specified. Further that the minutes produced by the Respondents indicate that it was a meeting of directors when the meeting the Appellants attended was that of a members meeting. 7.4 It is not in dispute and as rightly observed by the learned Judge that at the time the said meeting was purported to have taken place, there were only two shareholders in the 2 rtd Appellant company, that is, the 2"'1 Respondent and the J •t Appellant. The said shareholders were also the only directors of the 2 nd Appellant company. It is also not in dispute that both the Appellants and Respondents have in -. J49- their evidence admitted that a meeting was convened sometime in October, where the transfer of shares from the 2 nd Respondent to the deceased was resolved. 7.5 We, therefore, agree with the learned Judge that whether the meeting was called a members meeting or a directors meeting, it did not negate the fact that a meeting did take place where the 1 s; Appellant and the 2°d Respondent were both in attendance and it was at this meeting that it was resolved that the 2ml Respondent transfers his shares to the deceased. The learned Judge was therefore on firm ground when she relied on the minutes of9rh October 1992 wherein both the names of the 1st Appellant and DW2 appear as having attended the meeting and concluded that a meeting of shareholders was convened with all shareholders 1n attendance. There was therefore, sufficient evidence to support this finding and we find no basis on which to fault the learned Judge. 7.6 Grounds two and five attack the lower court's finding that a resulting trust was created in favour of the 2nd Respondent when it initially found that the deed of gift -,)50- executed by the 2"d Respondent did not specify that the deceased was to hold the shares in trust for any of the beneficial owners. 7. 7 According to Halsbury's Laws of England, 4 th Edition Vol. 48 at paragraph 604 the learned authors state as follows: "A resulting trust is a trust arising by operation of law: i. Where an intention to put property into trust is sufficiently expressed or indicated, but the actual trust either is not declared in whole or in part or fails in whole or part; or ii. Where property is purchased in the name or placed in the possession of a person ostensibly for his own use, but really in order to effect a particular purpose which fails; or iii. Where property is purchased in the name or placed in the possession of a person without any intimation that he is to hold it in trust, but the retention of the beneficial interest by the -,/51 - purchaser or disposer is presumed to have been intended." 7.8 Further at paragraph 612, the learned authors state as follows; "Where a person purchases property in the name of another or in the name of himself and another jointly, or gratuitously transfers property to another or himself and another jointly, then, as a rule, unless there is some other further indication of an intention, the property is deemed in equity to be held on a resulting trust for the purchaser or transferor." 7.9 In addition, in the case of Peter Ndungu Njenga v Sophia Watiri Ndungu33 , the Kenyan Court of Appeal outlined circumstances in which a court may be prepared to imply a trust as follows: "The concept of trust is not new. In case of absolute necessity, but only in case of absolute necessity, the court may presume a trust. But such presumption is not to be arrived at easily. -,J52- The courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create a trust must be clearly determined before a trust is implied." 7.10 From the evidence on record it is clear that an instrument namely, a deed of gift was executed between the 2 nd Respondent and the deceased and as rightly found by the learned Judge, the said deed of gift did not speciry that the shares were to be held in trust for any beneficial owners. The learned Judge in finding that a resulting trust had been created relied heavily on our decision in Garry Davies Chibangula case which was upheld by the Supreme Court. In that case we held that: "it is the established principle of law governing resulting trusts that it must be the express or implied intention of the settlor not to part away with his legal interest in the property permanently at the time of giving it to a trustee while he retains the equitable interest in it ... -. , ,),.)- I-., ... the court will have to read the intention of the donor at the time where the instrument has no express provision. Once the court forms the view that that the donor never intended to give the beneficial interest in equity to the recipient of the property, then the law will deem the interest to have remained with the donor thereby creating a resulting trust with the donor as the settlor and the recipient as trustee ... ... it is understood that the court in imposing a resulting or constructive trust will look at the original intentions of the settlor and apply to those intentions the principles of equity to hold that there was a split of the legal and the equitable interest between the parties. One illustrative instance in which the court will impose a resulting trust in favour of a transferor of property is where such transfer is made without corresponding consideration and there is no evidence that the transferor intended to make -J54- a gift or to abandon all interest in the property. The exception is where the transfer is to the transferor's spouse or child as it is normal to make transfers of property to such persons gratuitously as opposed to a stranger. For that reason, such a trust is said to carry the beneficial interest back to the transferor. It is however, important to note that for a resulting trust to be imposed in equity, the transferor must have a beneficiary or proprietary interest in the property in the first place. 7 .11 In our decision, ,ve also relied on the case of Lavelle case, ,vhere it was held as follows: "Thus resulting trusts are imposed only in cases where property is gratuitously transferred and there is insufficient evidence to ascertain the transferor's intention. In these circumstances the law will raise a presumption in the transferor's favour that the transferor does not intend to part with the beneficial interest in the property" 7.12 \Vhat is clearly coming out from the above authorities is thnt resulting trusts are based on intention. A resulting trust will only be imposed in order to give effect to the real intention of the parties. 7.13 Therefore, in order to ascertain the real intention of the parties, the learned Judge considered the circurnstances surrounding the share transfer, firstly the fact that the share transfer was made without consideration, secondly. despite transferring the shares to the deceased, the 2.-.d Respondent continued to exercise authority and control over the affairs of the 211'' Appellant and lastly, the rninutes of the 1neeting of g,t: October, 1992 where it was resolved that the shares be transferred to the deceased to hold in trust and that this was n1eant to aid the :2,·,., Appellant in the acquisition of real property. 7 .14 Taking into consideration the circumstances alluded tu in the preceding paragraph and the authorities cited above, we are inclined to agree with the learned Judge that the -J56- deed of gift alone was insufficient to ascertain the real intention of the Donor and it was for that reason that extrinsic evidence was called into play and a presumption was raised in favour of the 2nd Respondent, that at the time of the transfer of the shares, he did not intend to part with his beneficial interest in the shares. 7.15 The circumstances of this case fall under the third illustration mentioned in paragraph 7.7 above giving rise to a resulting trust namely that a resulting trust will arise "iii. Where property is purchased in the name or placed in the possession of a person without any intimation that he is to hold it in trust, but the retention of the beneficial interest by the purchaser or disposer is presumed to have been intended." 7.16 In our view, the learned Judge properly directed her mind to the application of the law on resulting trusts. We, therefore see no reason to disturb her finding. 7 .17 Ground six faults the learned ,Judge for holding that the 2"<1 Respondent did not intend to part with legal interest in J 5 7- the property permanently or to abandon all interest in the property. As earlier alluded to, the learned Judge ,vent to great lengths to ascertain the original intention of tl)e 2 nd l~espondent and having found that it was not intended to be a gift, she applied the correct principles of law in arriving at her decision tl)at a resulting trust l)ad been created. The learned Judge cannot he faulted for arriving at that decision. 7.18 Ground seven assails the learned Judge's finding that the Appellants have not demonstrated tlHH the transfer was intended to be a gift when tl)e Appellants did not expressly plead in the defence and counterclaim that transrer to the deceased was by way of deed of gift. 7 .19 This argument does not hold any water ror the sirnple reason that the rninutes of tl)e meeting of 91" October, 1992 relied on by the Respondents and which meeting the lower court found to have been convened, suggest that the shares were intended to be l)cld in trust and not as a gift. A presun)ption l)ad been raised at this point in favour of the 2:1c1 Respondent and the said presumption could have • -,/58- been rebutted with evidence to the contrary to show that the share transfer was intended to be a gift. The learned Judge relied on the case of Pecore case, where it \'Vas held that: "The Presumption of resulting trust is a rebuttable presumption of the law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended ... " 7.20 We agree with the learned Judge that the Appellants merely relied un the deed of gift and did not adduce cogent evidence proving that the share transfer was intended to be a gift. The Appellants did not discharge the burden of proof. 7.21 We are also of the view that there was nothing barring the learned Judge from considering the Canadian case of Pecore v Pecore in arriving at her decision as it docs not • • -,)59- contradict any Supreme Coun Cases on the subject 111atter. 7.22 Ground eight attacks the learned Judge's finding that the 2:"1 Respondent executed the deed of gift under a rnistaken belief of law and fact. Needless to say that parties are bound by their pleadings and the issues for detern1ination largely ilow frorn the pleadings. Likewise. a Court can only pronounce itself on issues arising from the pleadings or such issues as the parties have frarned for the court's deterrnination. 7 .23 Our perusal of the pleadings and the evidence of t!1e Respondents reveals that at no point was mistake pleaded neither was any evidence led to that effect. It was therefore improper for the court to have made such a finding and it is hereby reversed. 7.21 However, this erroneous finding by the learned Judge does not affect or change the finding that the transfer of the shares was nut intended to be a gift and that a resulting trust was created in favour of the 2"'1 Respondent. r 7.25 Ground nine relates to the Appdlant·s counterclain1, -,/60 specifically on the issue of the finding on who the custody of title deed should reside. \Ive are in support of the finding lhat it should be with lhe 2'" 1 Appellant. as a legal ent.ity. The ,\ppel\ants argue that having found as she did, the learned Judge ought t.o have found that t.he counterclaim succeeded. 7.26 Having perused the counterclaim, "'Ne hold the view that the learned ,Judge's finding on the tit.le deeds did not lake care of the other claims contained in the Counterclaim such as the clai1n for damages for loss of use of lhe title deed and claim for mesne profits and an Order for possession to warrant a successful counterclai1n. 7 .27 And also connected to this ground is ground eleven where the Appellant.s argue t.hat the karned ,Judge failed to adjudicate on all 1natters 1n controversy 1n the coun tcrclaim. Upon a perusal of the Judg1nent. of the lower court we are inclined to agree with the Appellants that the learned Judge did nut adjudicate on all the c\ai1ns in the counterclaim contrary lo the principles enunciated in • " J61- many cases including Wilson Masauso Zulu case. Failure to determine all issues in controversy amounts to dereliction of duty on the part of ,Judge. 7.28 We, however, proceeded to consider the rest of the claims contained in the counterclaim and upon a perusal of the evidence on record, we are of the considered view that the Appellants have not adduced sufficient evidence to support their claims, save for the claim relating to delivery of the certificates of title. 7 .29 The Appellants have not adduced sufficient evidence to sh0\1\1' how the 1 •1 Plaintiff is wrongfully occupying subdivision B7 of Farm number 748 Ndola and why it is entitled to m.esne profit. The Appellants have neither adduced evidence upon ·which the court can make an order for damages for loss of use of the certificates of title. Therefore, the counterclaim fails. 7 .30 With respect to ground ten on costs, in the case of Doyle B. Kapambwe v Machona Kapambwe, Henry Machina and Rose Madina Kamungu34 we held that costs are generally awarded to the successful party unless there are • -,)62- reasons to depart from the rule. \Ve have also considered the case of Re Elgindata Limited referred to us by State Counsel and in our view this is not an appropriate case for us to depart from the general principles. The Respondents being the successful litigants in the matter in the court below are entitled to their costs as awarded. Ground ten fails. 8.0 CONCLUSION 8.1 The appeal having been unsuccessful, it is accordingly dismissed for lack of merit. o ts to the Respondents, the J. C,Bn,.,.ul COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE A. N. PATEL, SC COURT OF APPEAL JUDGE