Stephen Muyunde Sakala v New Future Finance Company Limited and China Hua Shun Group Zambia Investment Company Limited (Appeal No. 92/2022; CAZ/08/82/2022) [2024] ZMCA 91 (29 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 92/2022 HOLDEN AT NDOLA ( Civil Jurisdiction) CAZ/08/82/2022 BETWEEN: STEPHEN MUYUNDE SAK AND 0067, LUS NEW FUTURE FINANCE COMPANY LIMITED CHINA HUA SHUN GROUP ZAMBIA INVESTMENT COMPANY LIMITED 1 ST RESPONDENT 2 N D RESPONDENT Coram: Chashi, Makungu and Sichinga J. J. A On the 21 st and 29t h day of February, 2024 For the Appellant: Mr. R. Musoni of Abercon Chambers For the Respondent: Mr. G. Hankainsi of Messrs L. M Chambers Standing in for N. C. O Advocates. JUDGMENT MAKUNGU JA, delivered the Judgment of the Court. Cases referred to: 1. City of Westminister Properties Limited v. Mudd (1959) Ch. 129 2. Kalusha Bwalya v. Chadore Properties and Another SCZ Appeal No. 222/2013 3. Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal AIR 1960 SC 4. Eva Chiboni v. New Future Finance Limited 2020/ HPC/ 0776 5. Magic Carpets Travel and Tours v. Zambia National Commercial Bank (1999) ZR 61 6. Kasabi Industries Limited v. Intermarket Banking Corporation Limited and Two Others SCZ Appeal No. 9 of 2009 8. Smith Sawila v. The Attorney General SCZ Appeal No. 1 of 2019 9. National Drug Company Limited and Zambia Privatisation Agency v. Mary Katongo SCZ Appeal No . 79 of 2001 10. Holmes Limited v. Build Well Construction Company Limited (1973) ZR 97 11. Swiss Bank Corporation v. Lloyds Bank Limited (1982) AC 584, (1980) 2 All ER 419 12. Nkongolo Farms Limited v. Zambia National Commercial Bank Limited & Others (2005) Z. R 78 (S. C) 13. Phinate Chana v. Zesco Limited CAZ Appeal No. 66/ 2019 14. Jndo Zambia Bank Limited v. Mushaukwa Muhanga (2009) ZR 266 (SC) 15. African Banking Corporation Limited v. Plinth Technical Works Limited & Others SCZ Selected Judgment No. 28 of 2015 16. Bwalya Chishimba Kambwili v. Greatwall Financial Services Limited CAZ Appeal No. 28 of 2021 1 7. Josephine Mwiya Limata v. Bonanza Cash Express Limited CAZ Appeal No. 302/ 2022 18. Morton Mhango v. Jackson Kapobe CAZ Appeal No.119 of 2020 19. Edman Banda v. Charles Lungu, Selected Judgment No.22 of 2017 Legislation referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This appeal is against the decision of R. Chibbabbuka J, of the High Court dated 23 rd February, 2022. 1.2 By that judgment, the learned High Court Judge dismissed the appellant's claims for inter-alia a declaration that the contract of sale of the property known as subdivision 289 of referred to as the property), belonging to the appellant was a mortgage in disguise, cancellation of the Certificate of Title issued to China Hua Shun Zambia Investments Company Limited, and an interim injunction restraining the respondents from evicting the applicant or selling the property in dispute. 2.0 BACKGROUND 2.1 On 27 th October, 2017, the appellant and the 1st respondent executed a contract of sale of the property. The terms of the contract were that the purchase price of the property was ZMW 350,000.00 and the appellant was paid the same amount on 27 th October, 2017. Thereafter, he deposited his title deeds with the 1 st respondent. 2.2 The appellant had an option to buy back the property at the same price by 26 th February, 2018, failure to which he would transfer the same to the 2 nd respondent. 2 .3 The appellant and the 2 nd respondent executed a deed of assignment dated 11 th February, 2019 according to the printout from the land register. 2.4 On a date unknown the appellant signed a document headed appellant sought to extend the purported loan from 27 th January, 2018 to 9 th February, 2018, a period of 14 days. The same document states that the appellant agreed to pay the extension occupying charge of $501 , plus the extension interest in the sum of$ 2002 (total of $2503) for the extension period. Further, the original contract amount would be paid off before 9 th February, 2018, failure to which the original contract would be executed. 2.5 The appellant failed to buy back the property from the 1st respondent within the stipulated time. The 1 st respondent then enforced the contract of sale and changed the ownership of the property to the 2 nd respondent on 11 th February, 2019. 2.6 The appellant, however, resisted yielding vacant possession of the property and decided to commence an action in the High Court on 23 rd September, 2019. 3.0 THE ACTION BEFORE THE HIGH COURT 3.1 The action was commenced by originating summons pursuant to Order 30 Rule 14 of the High Court Rules, Chapter 27 of the Laws of Zambia. The reliefs sought were as follows: Meanwood Ibex Hill Lusaka in the Lusaka Province of Zambia; 2. An order for cancellation of the Certificate of Title issued in the name of China Hua Sun Group Zambia Investment Company Limited as the same was illegally obtained; 3. An order for an interim injunction, pending the determination of the matter; 4. Any other relief that the court deems fit; and 5. Costs incidental to these proceedings. 3.2 On the same date, the applicant had also applied for an injunction pending the hearing of the matter which the court granted ex-parte on 23 rd September, 2019 and confirmed on 13 t h November, 2019. 4.0 APPELLANT'S AFFIDAVIT EVIDENCE 4.1 In the affidavit in support of the originating summons sworn by the appellant himself, he stated that on 26 th October, 2017, the 1s t respondent loaned him the sum of ZMW350,000 which was secured by depositing his title deeds with the 1 s t respondent. The 1 s t respondent gave him 3 months to pay hor-lr +h,:;:, lrv::,-n n-n 07 th . Tci-n,,ciru 0()15< hP -nciir-1 t"hP (;:llm r1f ~ (a)$ 2,002. 00 towards the interest; and (b) $ 501.00 for an extension of the loan period. 4.2 That additionally he paid the sum of $ 2 ,300 towards the interest. He further stated that the security was not registered at the Ministry of Lands. 4.3 That on 17th September, 2019 , the 1 s t respondent through its advocates wrote to him stating that they would take possession of the property within 7 days from the date of receipt of their letter. The appellant's advocates conducted a search at the Ministry of Lands and found that his property had been transferred to the 2 nd respondent without his knowledge. There was no court order to transfer the said property to the 2 nd respondent. 4.4 He further stated that he is prepared to repay the loan to the 1 st respondent in installments. The respondents have not given him a proper statement of account or interest charges on the loan . 5.0 1 sT AND 2Nn RESPONDENTS' AFFIDAVIT IN OPPOSITION 5.1 The 1 st and 2 nd respondent filed an affidavit in opposition which was sworn by Feng Sheng Hu, the Deputy General 5.2 He averred that contrary to the averments in the appellant's affidavit in support of the application, the parties entered into a valid con tract of sale of the property and the appellant executed an assignment in favour of the 2 nd respondent. That the appellant received the full contract sum and acknowledged receipt thereof. 5.3 That he had been advised by his advocates and believes the same to be true, that the appellant being of full age and understanding, executed the contract of sale and deed of assignment fully knowing the consequences thereof and cannot now renegade on his obligations. 5.4 He further stated that the appellant has no legal title or claim over the said property or assets thereon as the same have been conveyed to the respondents. 6.0 DECISION OF THE LOWER COURT 6.1 After considering the evidence before her, the trial Judge found that the true nature of the transaction was a loan secured by the appellant's property. 6.2 Under the circumstances, the normal course of action would have been for the appellant to deposit his title deeds with the respondent thereby creating an equitable mortgage. Instead, of a contract of sale wherein the applicant conveyed his property to the respondent with an option to buy back the property. 6.3 The option to buy back was meant to facilitate the repayment of the loan whereby the applicant would regain ownership of his property. 6.4 The trial Judge further found that the application for an extension of the property loan is a testament to the fact that the applicant was given a loan by the respondents. According to the Judge, this evidence established something more in the case. 6.5 However, since the appellant had not pleaded or proved fraud, mistake, or misrepresentation in the manner that both the contract of sale and assignment were executed. Therefore, he could not claim to be an equitable mortgagor as he had opted to sign a con tract of sale and assignment to convey his property to the respondents. 6.6 Under the circumstances, the injunction that was granted to the appellant was discharged and the entire claim was dismissed with costs to the respondents. 7.0 GROUNDS OF APPEAL 7.1 The appellant has advanced four grounds of appeal framed as follows: 1. The lower court erred in law and fact when in spite of the undisputed evidence of there being something more, other than the contract of sale and assignment to show the real intention of the parties, held that the transaction between the two parties is a conveyance and not a loan agreement, thereby offending the judgment of the Supreme Court in the case of Kalusha Bwalya v Chadore Properties and another SCZ Appeal No. 222/2013. 2. The lower court erred in law and fact when it failed to take into account the various loan repayments and the application for extending property loan which evidence ought to have put the court on notice as to the nature of the relationship between the appellant and the respondent. 3. The lower court erred in law and fact when it erroneously omitted to grant the appellant the equitable right of redemption despite finding that the than a mere contract of sale and assignment but it was a loan agreement. 4. The lower court erred in law and fact when she failed to address her mind on the issue of the illegality of the Certificate of Title which was pleaded and to the material fact that the registration of the assignment was null and void for being registered out of time in the absence of a court order. 8.0 APPELLANT'S HEADS OF ARGUMENT 8.1 The appellant relied on the heads of argument dated 6 th May, 2022, wherein counsel argued grounds one and two together. The essence of the submission under the said grounds is that the rule of evidence and contract law presupposes that a party who enters into a written contract is not allowed to introduce any evidence outside the four corners of the document. However, exceptions to the parole evidence rule exist. A notable exception is the collateral contract. Counsel relied on the case of City of Westminister Properties Limited v. Mud,1 where it was held that the oral agreement constituted a separate collateral contract that the landlords would not be oermitted to resile. 8.2 Counsel submitted that in the present case, the appellant approached the respondents for a loan of ZMW 350,000 and he was advanced the sum of ZMW 270,000 and he signed a contract of sale . When the appellant saw that he was defaulting on the loan he was made to sign a supplementary document titled An Extension of Property loan. According to counsel, the extension of the property loan can be treated as a collateral contract that supplemented the purported con tract of sale the appellant was made to sign. In this vein , counsel argued that the agreement between the parties was not a conveyance but a loan. 8.3 Counsel further submitted that the trial court despite having been fully aware that there was something more to the transaction other than the contract of sale and assignment to show the real intention of the parties, the court erroneously proceeded to hold the prevailing situation and transaction between the parties to be a sale/ conveyance and not a loan. 8.4 Our attention was drawn to the case of Kalusha Bwalya v. Chadore Properties and Another2 on the principle that extrinsic evidence should not be allowed and the court should the written contract. However, where there is evidence that a party was tricked into signing a contract or indeed any document which did not express the intention of the parties, the contents of the contract or indeed any document should not be upheld by a court because they represent treachery. 8.5 In this regard, counsel submitted that the Judge ought to have considered the document named as an extension of the property loan as evidence to show that the real intentions of the parties was to enter into a loan agreement where the appellant would pledge their property as collateral and not a conveyance. 8.6 Counsel further submitted that the trial court ought to have considered the various loan repayments as evidence to show that the true intention of the parties was to enter into a loan agreement as opposed to a conveyance and/ or sale of the appellant's property. Counsel pointed out that the record shows that the appellant made a payment of$ 2000 towards interest and another payment of$ 503 towards extending the loan period. 8.7 Counsel further submitted that the buy-back clause which gave the appellant the option to buy back the property within nature of the transaction between the parties. Counsel referred us to the foreign case of Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal3 where the Indian court declared a purported contract of sale that had a buy-back clause and a purchase price that was far below the market value of the property to be a mortgage and not a contract of sale. 8.8 It was submitted that the purported contract of sale giving the appellant the option to repurchase his property is clear evidence to show that the real intention of the parties was to enter into a loan agreement and not a conveyancing. Counsel further cited the High Court case of Eva Chiboni v. New Future Finance Limited4 where the plaintiff was made to sign a contract of sale as a condition for lending her money when she failed to pay back the money, she was told that it was a sale. The High Court determined the transaction was a loan agreement. 8. 9 In support of ground three, counsel contended that the court erred when it refused to grant the appellant the equitable right of redemption despite finding that the agreement between the parties was more than a mere contract of sale. Tours v. Zambia National Commercial Bank5 where it was held that: "As regards an equitable mortgage, the position at common law is that when one surrenders his title deeds to land as security for the repayment of a loan, an equitable mortgage is created." 8 . 10 Counsel argued that when the appellant deposited his title as security for the loan, an equitable mortgage was created. We were also referred to the case of Kasabi Industries Limited v. Intermarket Banking Corporation Limited and Two Others6 on the principle that an equitable mortgagee does not have the right to sell the mortgaged property as a way of enforcing the mortgage. The mortgagee however has the right to obtain an equitable order for foreclosure and once the property is foreclosed, the mortgagor's right of redemption is extinguished and the property must be conveyed to the mortgagee by the mortgagor unconditionally. 8.11 Counsel went on to restate the document headed "Application for extending property loan/' and con tended that the document clearly shows that the agreement between the rn:irties is ;:i lo;:in ;:ind not a convevance . 8.12 Counsel argued ground four in two parts. In the first , he argued that the assignment deed is null and void on the basis that it is not dated and that it was registered out of time in the absence of a court order. In the second , the transfer of the property to the 2 nd respondent was tainted with illegality and irregularities. 8.13 Counsel submitted that under sections 4 (1) and 5 (2) (a) of the Lands and Deeds Registry Act all documents to grant or transfer an interest in land ought to be registered with the Lands and Deeds Registry. He also relied on the case of Josia Tembo and Henry Jawa v. Peter Mukuka Chitambala (Sued as Administrator of the Estate of the Late Frank Macharious Chitambala) 7 where the Court stated that: "Any document purporting to grant an interest in land for more than one year must be registered with the Lands and Deeds Registry. Failing such registration shall be null and void." 8.14 Applying the above law, counsel contended that the purported Deed of Assignment between the appellant and the 2 nd respondent is null and void for want of registration as it actual day or month in which it was executed, it only contains the year. The uncertainties regarding the date of execution of the purported assignment cast doubt on whether the assignment was registered within the prescribed 3-month period as per the requirements of section 5 (2) (a) of the Lands and Deeds Registry Act. 8.15 Counsel also referred us to section 34 of the Lands and Deeds Registry Act and the case of Smith Sawila v. The Attorney General, 8 which emphasizes that a Certificate of Title can be challenged and cancelled for fraud or impropriety in the manner it was acquired. 8.16 He further pointed out that the illegality and impropriety in the manner in which the second respondent acquired the appellant 's property is shown by the disparities in the purchasers of the property in the purported Contract of Sale and Assignment. The contract indicates that the appellant is selling the property to the 1 st respondent but in the deed of assignment , the purchaser is China Hua Shun Group Investments Company Limited. 8.17 We were implored to allow the appeal and cancel the Certificate of Title issued to the 2 nd respondent. 9.0 1 st and 2 nd RESPONDENTS' HEADS OF ARGUMENT 9.1 The respondents relied on the heads of argument filed on 30 th May , 2022 wherein grounds 1 and 2 were argued together as follows: That the documents governing the relationship between the appellant and the respondents are the contract of sale, the deed of assignment and receipt for ZMW 350 ,000.00. What these documents reveal is that the appellant was given the sum of ZMW 350,000.00 by the 1 st respondent to transfer the property to the 2 nd respondent. The appellant was given the option to buy back the property if he refunded the money within the prescribed period but he failed to do so. 9.2 Counsel further submitted that courts must give efficacy to contracts. The case of National Drug Company Limited and Zambia Privatisation Agency v. Mary Katongo 9 was cited as authority for this submission. 9.3 Counsel emphasised that the words contained 1n the contract of sale, deed of assignment and receipt, clearly express the intentions of the parties for the appellant to sell and the respondents to buy the property. Thus, the appellant cannot allege that there was someth ing more to the merely because he failed to exercise his right to buy back the property within the stipulated time. 9.4 Counsel further submitted that extrinsic evidence cannot be admitted to vary, add, subtract from or contradict a written document as per the case of Holmes Limited v. Build well Construction Company Limited. 10 He further argued that although there are exceptions to the extrinsic evidence rule , this case does not fall within those exceptions as the documents executed embodied all the terms of the agreements between the parties. Counsel went on to discuss the exceptions to the parole / extrinsic rule evidence which we will not recapitulate. 9.5 That no reasonable person can allege that the document headed "Application for extending property loan" 1s supplementary to the contract of sale and deed of assignment. According to counsel, there was nothing that the lower court could have relied on to come to a contrary position. We were referred to the case of Kalusha Bwalya v. Chardore Properties and Another2 where the appellant sought to be deemed an equitable mortgagor but did not plead any relief hinged on a claim of fraud , mistake , or misrepresentation. The Supreme Court upheld the transaction to be a con tract of sale and not a loan agreement. 9.6 On the 3 rd ground of appeal, counsel for the respondents submitted that the lower court was on firm ground when it did not grant the appellant the equitable right of redemption as it is only granted to an equitable mortgagor. We were referred to some authorities on the concept of a mortgage including the case of Swiss Bank Corporation v. Lloyds Bank Limited 11 where Halsbury's Laws of England/ mortgage (Volume 77(2010) 5 th edition) at page 4 was quoted that: "A mortgage consists of two things, namely a personal contract for payment of a debt and a disposition or charge of the mortgagor's estate or interest as security for the repayment of the debt; in equity the estate or interest so transferred is no more than a pledge or security. Every mortgage implies a debt and a personal obligation by the mortgagor to pay it." 9.7 In light of the foregoing description of a mortgage, counsel mortgage as a contract of sale and deed of assignment were executed. 9.8 In opposing the 4 th ground of appeal, counsel noted that the appellant placed reliance on the provisions of sections 4 (1) and 5 (2) (a) of the Lands and Deeds Registry Act, to argue that the Deed of assignment is void for want of registration within the prescribed time. However, the appellant did not prove that the deed of assignment was not registered within the statutory period of 30 days. 9.9 On the allegation by the appellant that the transfer of the property is tainted with illegality and irregularities hence the Certificate of Title issued to the 2 nd respondent must be cancelled, counsel for the respondent emphasized that the appellant freely and voluntarily executed the contract of sale and deed assignment. He cannot now attempt to defeat that which he undertook to do merely because he suffers consequences that do not please him. 9.10 Reference was also made to the case of Smith Sawila v. The Attorney General8 on the principle that a Certificate of Title can be challenged and cancelled for fraud or impropriety in its acquisition. Reliance was also placed on the case of Bank Limited and Others 12 to advance the argument that the appellant did not provide any evidence before the lower court upon which the court could decide whether fraud or impropriety had been committed by the respondents . 9.11 In sum , counsel submitted that the appellant contracted to sell the property without being forced or misled to do so. We were urged to uphold the decision of the lower court. 10.0 APPELLANT'S ARGUMENTS IN REPLY 10.1 The arguments in reply were mainly a repetition of the main arguments save to add that under grounds 1 and 2, the appellants contended that the buy-back clause contained in the contract of sale is a clear indication that the actual situation that was prevailing between the parties was a loan in which the appellant pledged his property as collateral. That a contract of sale seeking to transfer land rights need not contemplate refunds and an option to buy back the property. The various loan repayments and the document couched as an "An application for extending property loan" falls within the exceptions to the parole evidence rule. The case of Phinate Chona v. Zesco Limited 13 was cited in support of 10.2 Counsel further submitted that as the document headed "An application for extending property loan" was drafted by the respondents and therefore should be construed against them using the 'contra proferentem rule) which presupposes that where there is a doubt as to the meaning of the contract, the words will be construed against the person that prepared the document. The case of lndo Zambia Bank Limited v. Mushaukwa Muhanga 14 was cited in support of this submission. 10.3 The arguments on ground 3 were a repetition of the main grounds of appeal. On ground 4, counsel submitted that although the respondents argue that the parties signed a contract in which it was agreed that the appellant would sell his property to the 1 st respondent and subsequently transfer it to the 2 nd respondent, the provisions of a contract of sale cannot determine the procedure that ought to be followed when conveying land from the vendor to the purchaser. A contract of sale can only convey land to the purchaser and not to any other person. Therefore, how the property moved to the 2 nd respondent is clear evidence of impropriety, irregularity, and illegality, and the Certificate of Title should 11.0 ANALYSIS AND DETERMINATION 11.1 After careful consideration of the evidence on record , the judgment, and the arguments put forth by counsel representing the parties involved, we shall deal with the grounds of appeal collectively as they are interconnected. 11 .2 The crux of the matter revolves around determining whether the parties intended to enter into a contract of sale of the property or a loan agreement for ZMW 350 ,000 .00 secured by the property. 11.3 The appellant contends that there was evidence indicative of something more or a contractual arrangement beyond a mere sale of the property and an assignment. To buttress this , he cited various loan repayments and the document headed "An application for extending property loan." 11.4 On pages 21 -25 of the judgment, the lower court found that the circumstances that prevailed were that the appellant obtained a loan from the respondents which loan facility was extended as evidenced by the document captioned "Application for extending property loan.'' However, she held that there was a contract of sale as the appellant failed to show that fraud , mistake , or misrepresentation existed in the 11.5 The contract of sale executed between the appellant and the 1st respondent on 27 th October, 2017 shows inter alia that the appellant agreed to sell his property to the 1 st respondent at the agreed price of ZMW 350 ,000.00. Further, the parties agreed that the same property would be transferred to the 2 nd respondent. However, the appellant was given the option to buy back the property by 26 th January, 2018. It was further agreed that if the appellant refunded the sum of ZMW 350 ,000.00 by 26 th January, 2018 the purchaser would ensure to transfer or hand back the Certificate of Title to the appellant. In default , the property was to be transferred to the 2 nd respondent. The appellant agreed to execute the contract of sale and all the necessary documents for the conveyance of the property. 11.6 The deed of assignment executed between the appellant and the 2 nd respondent only showed the year of execution as 2019 on the cover page but not the actual date on which it was signed. 11 . 7 The "Application for extending property Loan", reads as follows : "Application for extending property loan" According to the contract which is signed is on the 27th day of October 2017 my collateral is the property of F/382a/289 including the land, houses and all the appurtenant, the size of the property is 1610m2 , its .......... Kilometres away from ........... office. The original contract amount is K350,000 for 3 months and expiry on the 26th January, 2018. I Stephen Muyande Sakala of NRC 163200/61/1 hereby apply for extending my loan from the 2 7th day of January 2018 to the 9th day of February 2018 in the total period of 14 days from New Future Financial Company Limited, I agree to pay the extension occupying charge of $501 and the extension interest $2002 for the extension period, in the total sum of$ 2503, I will pay off the original contract amount before the 09th day of February 2018 and this is the last extension. If I cannot pay back the remaining amount before the 09th day of February 2018, the original contract will be executed, I will not regret and I will cooperate with changing the ownership of the collateral. extension of property loan" was something more that should have persuaded the trial court to find that the transaction was more than a sale. He urged us to find that the parties only intended to enter into a loan agreement. 11. 9 Although the above documents were executed on diverse dates, they should be read together in order to determine the true intentions of the parties. 11. 10 Our interpretation of the said do cum en ts is that the appellant initially expressed his intention to sell his property to the 1 st respondent with an option to buy the property back at the same price of ZMW 350,000.00. In the contract of sale , there was no indication of any interest to be paid. It is not in dispute that the purchase price was paid and the title deeds handed over to the 1st respondent. Therefore, the property was at this stage sold . 11 . 11 The document that followed was the "Application for extending property loan" in which the appellant sought an extension of time to pay off the purported loan. However, the document also indicates that the property served as collateral to secure the loan. We hold that a mortgage cannot be created after the subject property has been sold. 11.12 Nevertheless, the parties' intentions expressed in both the contract of sale and the "Application for extending property loan" were for the appellant to sell the property and in default of buying back the same , to transfer ownership of the property to the 2 nd respondent as the ultimate beneficiary. These intentions were reinforced by the deed of assignment executed between the appellant and the 2 nd respondent in 2019. 11 .13 We are fortified by the case of African Banking Corporation Limited v. Plinth Technical Works Limited & Others 15 where the Supreme Court guided as follows: "The function of the Court is to ascertain what the parties meant by the words which they have used; to declare the meaning of what is written in the instrument, not of what was intended to have been written; and to give effect to the intention as expressed." 11.14 Further, when parties freely and voluntarily enter into contracts , they are bound by the terms of the contracts and the court must enforce the same as per National Drug Mary Katongo 9 and Kalusha Bwalya v. Chadore Properties and Another. 2 11.15 In light of the foregoing, the words in the con tract of sale, application for extension of time , and deed of assignment primarily support a contract of sale with a buy-back option and nothing more. We therefore reject the appellant's argument that the application for an extension of property loan entails that the real intentions of the parties were merely to enter into a loan agreement. 11. 16 We re-affirm our decisions in the cases of Bwalya Chishimba Kambwili v. Greatwall Financial Services Limited, 16 Morton Mhango v. Jackson Kapobe, 17 and Josephine Mwiya Limata v. Bonanza Cash Express Ltd 18 which were on similar facts as the present case, in that they all involved purported loan agreements alongside contracts of sale of real property belonging to the purported borrowers, with buy back options left unexercised. We held that the contracts of sale were valid and enforceable and not the purported loan agreements because the purported borrowers were not coerced in to signing the con tracts of sale. 11.17 Therefore, the appellant should not be heard to cry foul that the property was transferred to the 2 nd respondent when he failed to buy back the property . 11.18 We further hold that the lower court rightly found no evidence of fraud, mistake, or misrepresentation that could suggest an intention other than conveying the property. In any case , the appellant did not claim fraud, mistake , or misrepresentation. (See the Kalusha Bwalya case) 11.19 Given our determination that the agreement between the parties constituted a contract of sale , arguments regarding the applicant's equitable right to redemption are untenable. 11. 20 We now turn to address the contention that the lower court overlooked the illegality of the Certificate of Title and the nullity of the deed of assignment due to lack of a date and being registered out of time and without a court order. 1 1.21 The appellant vehemently argued that the lack of a date on the deed of assignment created uncertainty as to whether the deed of assignment was registered within the prescribed period of 30 days from the date of execution of the document as per section 5 (2) (a) of the Lands and Deeds Registry Act. Consequently, the transfer of the property to the 2 nd respondent is marred with illegalities and irregularities and the Certificate of Title must be cancelled. 11.22 Although the deed of assignment exhibited was not dated , according to the printout from the Land Register, the deed of assignment was dated 11th February 2019 and registered on the same date. 11 .23 It is trite that the burden of proving an alleged fact rests with the party making the claim. Therefore, the appellant bore the on us of proving that the deed of assignment was registered out of time. However, he failed to adduce any evidence to support his claim. 11.24 The appellant further argued that in the contract of sale, the purchaser is the 1 st respondent, while in the deed of assignment the purchaser is the 2 nd respondent, and that this is an anomaly. 11.25 We reiterate that the contract of sale stated that the 1st respondent was the purchaser however, a clause within the contract stated that the property would be transferred to the 2 nd respondent. Hence, the assignment which the appellant does not deny having signed was made in favour of the 2 nd respondent. Consequently, we find the appellant's argument 11.26 We re-affirm what we stated in the case of Josephine Mwiya Limata v. Bonanza Cash Services 18 that even when a contract originates from a loan agreement tainted with illegalities, this does not nullify the contract of sale if the parties' intentions are clear, and there was offer, acceptance, and consideration. In that case, we followed the principles espoused in the Supreme Court case of Edman Banda v. Charles Lungu 19 as follows: "The mere fact of proof of illegality having tainted a contract would not always render such a contract void and unenforceable. Put differently, an otherwise 'illegal' contract would be enforced by a court of law where factors or considerations exist which militate against refusal to enforce." 11.27 Similarly, in this case, the intentions of the parties were clear and the appellant cannot now challenge the Certificate of Title on allegations that the deed of assignment lacked a date, was registered out of time without a court order, and that the purchaser in the con tract of sale differs from the purchaser in the deed of assignment. can be challenged on account of fraud or impropriety in the manner it is acquired. The burden to prove such fraud o: impropriety rests on the appellant. However, there is nc evidence on record to prove fraud or impropriety in the manner in which the Certificate of Title was obtained by the 2nd respondent. 11.29 We must comment on the issue of interest paid by the appellant which was not disputed by both respondents. It i: not clear how the "extension occupying charge" and the "interest' were computed. The initial contract was silent or interest. The purchase price was only ZMW 350,000.00 Nevertheless, we note that the appellant did not specificall~ claim any refund but he did claim for "any other relief tha the Court might deem fit." Therefore, it is in the interest o justice for us to make an order under this head, that$ 25.0: be refunded to the appellant by the 1 st respondent witl interest at 10% per annum from the date of the writ until ful settlement. 11.30 We note that of late several cases of this nature have come 11n in thP rrn,rt~ nf l~W" ThP rli~n11tP.~ ::irP. hrmurht ::ihout b, contracts which appear to be mortgages or loan agreements It seems to us that loan shacks take advantage of member: of the public in desperate need of loans. 11.31 It is highly undesirable to link loan agreements wit} contracts of sale of real property. Members of the public i1 need of loans should be cautious as to the nature of contract: they enter into when obtaining loan facilities. The contrac should be a loan agreement, a mortgage, or a contract of sal1 of property. People with the legal capacity to enter int, contracts, who freely and voluntarily enter into multipl1 contracts relating to one property are usually at risk o suffering the consequences of their actions. 12.0 CONCLUSION 12.1 In a nutshell, we find no merit in the appeal. The parties had entered into a valid contract of sale. Since the appellant claimed any other relief, he is under this head, entitled to a refund of$ 25.03 with interest. Under the bear its own costs. 'J. CHAS COURT OF APPEAL JUDGE C. K. MAKUNGU COURT OF APPEAL JUDGE ~ . . . . . . . . . . . D. L. Y. COURT . ....... .