VDF Property Management Limited v Ronald Van Vlaaderen (App. No. 120/2022) [2024] ZMCA 55 (28 February 2024)

IN THE COURT OF APPEAL OF AM!JJft. 1 ul-Ari->t:_,J\PP- No. 120/2022 HOLDEN AT NDOLA (Civil Jurisdiction) /r-------- B FEB 2~ ~ · · I 2 BETWEEN: CIVIL f.u!S Y 2 VDF PROPERTY MANAGEMENT LIMITED APPELLANT AND RONALD VAN VLAANDEREN RESPONDENT Coram: Chashi, Makungu and Sichinga, JJA. On 21 st February, 2024 and 2Sth February, 2024 For the Appellant: Mr. E. B. Mwansa, SC of Messrs EBM Chambers and Mrs. D. Findlay of Mesdames Findlay and Associates For the Respondent: Mr. 0. Samba of Messrs. Mwenye & Mwitwa Advocates JUDGMENT Sichinga JA delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. Nkhata and Four Others v The Attorney-General (1966) ZR 124 Zambia Telecommunications Company Limited v Chipowe SCZ Appeal No. 207 of 2008 Grigsby v Melville (1973) 3 All ER 455 Nielson v Poole (1969) 20 P and CR 909 Jacobs v Batavia General Plantation Trust Ltd (1924) 1 Ch. 287 Sam Amos Mumba v Zambia Fisheries and Fish Marketing Corporation Limited (1980) ZR 135 Simpson v Faxon (1907) P. 54 at 57 Maddison Vs Alderson (1883) 8 App Cas 467 at 488 Jl ... _ 4 - 9. Timmins v Moreland Street Property Co Ltd (1957) 3 All ER 267 at 276 10. Gordon-Cumming v Houldsworth (1910) AC 537 HL at 548 11 . Printing and Numerical Registration Company v Sampson (1875) LR 19 EO at 465 12. Colgate Palmolive (Z) Inc. v Abel Shemu Chuka and 11 O others SCZ Appeal No. 81 of 2005 13. WN Hillas and Co Ltd v Arcos Ltd (1932) 147 LT. 503 14. Dangote Industries Zambia Limited Vs. En.fin Limited CAZ Appeal No. 53 of2020 15. Re Strand Music Hall Co Ltd (1865) 35 Baev 153 16. Masterton Homes Pty Ltd v Palm Assets Pty (2000) NSWCA 234 17. County Securities v. Challenger Group Holdings Pty Limited (2008) NSWCA 193 18. Kenmuir v Hattingh (1974) ZR 162 19. GDC Hauliers (Z) Limited v Trans-Carriers Limited (2001) ZR 48 20. Powell v Streatham Manor Nursing Home (1935) ALL ER at page 58 21 . Killian Ives Mulenga v the Attorney General, Appeal No. 45 of 2017 22. The Attorney-General v Marcus Kampumba Achiume (1983) ZR 1 23. Khalid Mohamed v the Attorney General23 (1982) ZR 49 24. Banda and Anor v. Mudimba (2011) Z. R. 162 Vol. 3 25. Turnerv. Forwood (1951) 1 ALLER 746 26. VDF Property Management Limited and Ronald Van Vlaanderen SCZ Appeal No. 190 of 2014 27. Phinate Chana v Zesco Limited, CAZ Appeal No. 66 of 2019 28. Friday Mwamba v Sylvester Ntego and Others, S. C. Z Appeal 174 of 29. Gerardus Adrianus Van Boxtel v Rosalyn Mary Kearney (A Minor by Charles Kearney her Father and Next Friend) (1987) Z. R. 63 30. Nkongolo Farms v Zambia National Commercial Bank, SCZ Appeal No. 101/2004 (2007) 31. Wilson Masauso Zulu v Avondale Housing Protect Limited (1982) ZR 172 J2 Legislation referred to: 1. The Statute of Frauds 1677 Other works referred to: i. Halsbury's Laws of England 4th edition 1.0 Introduction 1.1 This is an appeal by VDF Property Management Limited (the 1st defendant in the court below), against the judgment of the High Court, of Mr. Justice Charles Zulu, in which he found partially in favour of the plaintiff, Ronald Van Vlaanderen (the respondent now), to the extent that he was entitled to 1.0244 hectares of Lot 3293 /M. 1.2 The plaintiff's claim against the defendants alleging fraud and breach of undertaking and seeking enforcement thereof was dismissed. 1.3 In the introductory part of our judgment, we shall refer to Ronald Van Vlaanderen as the plaintiff, VDF Property Management Limited as the 1 st defendant, Dessislava Findlay as the 2 nd defendant, Adams Aziz Hussein Dawood as the 3rd defendant and Joseph Phiri (sued as personal representative of the estate of William Roy Needham Baker) as the 4 th defendant, as these were their designations in the court below. 2.0 Background and claims 2 .1 For the purposes of this appeal, we shall refer to the background relevant to what is in contention. The subject J3 matter of this appeal is the disputed extent of the land purchased by the plaintiff from the late William Baker, which was delineated from the latter's properties, subdivision Hof Farm No. 487a and Lot No. 3293/M. 2.2 The plaintiff alleged that the exact extent and boundaries of the land that was to be marked off from Mr. Baker's two parcels of land was well known. That 5528 square metres was to be marked off from subdivision H of Farm No. 487a and 1.0244 hectares (2.5 acres) was to be marked off from Lot 3293 /M. The dispute relates to the extent of what was to be marked off Lot 3293 / M. 2.3 As deciphered from the record of appeal, in 2008, the late Mr. Baker, represented by his advocate, Mr. Adam Aziz Hussein Dawood, SC, the 3 rd defendant, entered into a contract of sale of land with the 1 st defendant, VDF Property Management Limited in February 1998. According to the contract, the 1 st defendant purchased 3 acres or 1 hectare of land which was to be marked off from the said two properties belonging to Mr. Baker. The 1 st defendant paid Mr. Baker the sum of K6,000,000.00 (unrebased), which was the full payment in consideration of the said 3 acres or 1 hectare to be marked off from the two properties, Subdivision Hof Farm 487a and Lot 3293/M, Lusaka. 2.4 The dispute between the parties arose following Mr. Baker's demise as to the extent of land to be marked off from the said Lot 3293/M Lusaka. According to Mr. Van Vlaanderen, the portion to be marked off from the aforesaid Lot 3293/M J4 .. is 2 .5 Acres whereas according to VDF the portion of land to be marked off from Lot 3293/M is 1.5 Acres. 2.5 Mr. Van Vlaanderen commenced an action by way of writ of summons and statement of claim dated 20 th March, 2014 against the defendants seeking the following reliefs: i. A declaration that the 1st defendant through its servants or agents or its Directors or officers has acted fraudulently since it procured title to the disputed lot. n. A declaration that 1. 0244 hectares of disputed lot as described in paragraph 23 (v) hereof belongs to the plaintiff; iii. An injunction to restrain the 1 st defendant until further subsidiary companies, or any of them or othenuise building or fixtures or encroaching onto the subsidiary companies, or any of them or othenuise howsoever from constructing the perimeter wall, or any building or fixture or encroaching onto the plaintiff's proposed subdivision on the disputed lot 3293/ M Lusaka; iv. An order to enforce the professional undertakings granted to the plaintiff by the 2 nd and 3 rd defendants that the conveyance of the disputed lot to the 1st defendant should take into account the plaintiff's interest in the proposed subdivision on the disputed lot which the plaintiff purchased from the deceased and that the plaintiff's said portion of land should be subdivided from the whole of the disputed lot and assigned to the plaintiff; v. An order that the 1s t defendant subdivides the said 1.0244 hectares of the disputed lot by measuring eastwards from the boundary A-F-E of the figure A-B-C-D-E-F-A shown in diagram no. 276602 issued to the 1st defendant and that JS the 1 st defendant should convey the same to the plaintiff at its own cost; vi. Costs of and incidental to this action; and vii. Any other relief which may seem just and equitable to the court. 3.0 Decision of High Court 3.1 Upon the trial of the matter, Zulu J found that the plaintiff was successful to the extent that he was entitled to 1.0244 hectares to be marked off from Lot No. 3293 /M. He ordered VDF to release the Certificate of Title to the plaintiff for the purpose of completing the process of conveyance at his own cost within 120 days from the date he would have possession of the original Certificate of Title. 4.0 The appeal 4.1 Dissatisfied with the lower court's judgment, the defendant launched this appeal, citing one ground of appeal as follows: 1. The court erred in law and in fact relying on the sketch plan in determining the extent of land to be marked off from Lot 3293/M, Lusaka in favour of the respondent when the sketch plan contradicts the Memorandum of Sale as to the total extent of the land to the respondent, the instructions issued by the late Mr. Baker to his advocates and such other circumstances that the Court ought to take into account. 5.0 The appellant's arguments 5.1 The appellant filed its detailed heads of argument on 8 th JG . - June, 2022, which we shall summarize to some degree as they are repetitive. The arguments do not focus on the other issues sought for determination and claims as against the other defendants as actioned by the respondent, but only those relevant to the appeal. 5.2 Before proceeding further, the appellant converted the relevant portions of land into the respective measurements and provided the Court with conversions below: 1 Acre equivalent to 0.404686 Hectares 1.5 Acres equivalent to 0. 6070285 Hectares 2.5 Acres equivalent to 1.011714 Hectares 3 Acres equivalent to 1.21406 Hectares 5528 Square meters equivalent to 0.5528 Hectares or 1.36599 Acres 1 Hectare equivalent to 2.47105 Acres 5.3 It was submitted that the agreement between Mr. Baker and the respondent was based on a memorandum or note dated September 1998 at page 108 of the record of appeal, which specifies that the extent of land purchased by the respondent as 3 acres or 1 hectare to be apportioned between two properties (from Subdivision Hof Farm 487a. and Lot 3293M Lusaka). 5.4 The appellant contended that the memorandum or note specifies 3 acres to be equivalent to 1.21406 Hectares, which was endorsed in the respondent's handwriting. That J7 f • 1 hectare is equivalent to 2.4705 acres which is in Mr. Baker's handwriting. That the memorandum also specifies in Mr. Baker's handwriting that the 1 hectare was to be marked off from two properties. The memorandum or note does not mention the extent of land to be marked off from each of the two properties. 5.5 The court below reasoned that the memorandum or note was not clear as to what extent was to be marked off from Subdivision H of Farm 487a and Lot 3293/M. The court was therefore entitled to consider surrounding circumstances that existed and as such relied upon the Sketch Plan to establish the extent of land to be marked off from Lot 3293/M, Lusaka. The said Sketch Plan is at page 110 of the record of appeal. The court below further reasoned that although the Sketch Plan did not have Mr. Baker's signature or the respondent's signature, the respondent was sincere and reliable and as such the court would accept that the Sketch Plan depicted the correct proportions of land to be marked off from the two properties. 5.6 It is this conclusion and finding that has aggrieved the appellant as the court below greatly erred in determining the extent of land to be marked off from Lot 3293/M by relying on the Sketch Plan which contradicts the Memorandum of Sale, the written instructions issued by J8 • • Mr. Baker to his advocates and such other circumstances the court ought to have considered. 5.7 The appellant pointed out that according to the memorandum at page 108 of the record of appeal, the total extent of land purchased by the respondent from Mr. Baker is 3 acres as written at the top of the page by the respondent and 1 hectare as written at the bottom of the same page by Mr. Baker. Whereas the Sketch Plan at page 110 of the Record of Appeal, depicts that the total extent of land purchased by the Respondent is 1.0244 Ha (2.531 Acres) + 5528 square meters (1.36599 Acres or 0.5528 Hectares) =3.89699 Acres or 1.577 Hectares. The court below beginning at line 1 of page 37 of the record of appeal, noted the difference in the extent of land, but concluded that it was a marginal difference in the size and as such the Sketch Plan could not be discounted. 5.8 We were asked to note that the difference is not marginal but significant as it increases the extent of land purchased by the respondent by more or less 0 .89699 acres or 3626 Square meters or 0 .577 hectares, which is more or less the difference in extent of land in dispute. 5.9 The appellant asked the Court to note that the late Mr. Baker was very precise in stating in the memorandum or note relied upon by the respondent at line 29 of page 108 of the record of appeal at the bottom of the page as follows: J9 "Received as full and final payment for the section of land bordering Plot Sub of Sub H comprising of 1 hectare of land being parts of my Two Plots Lot 3293 and Subdivision H of Farm 487a." 5.10 The appellant also referred to the written instructions by Mr. Baker to his Advocates at page 163 of the record of appeal that the portion of land to be marked off from Lot 3293/M in favour of the respondent is 1.5 Acres as he was paid for 1.5 Acres. The said portion of the instructions was reproduced as follows: "She understood than 3293 (lot) was with Mr. R. Van Vlaanderen total 3. 044 Hectares or 7. 8 Ares of which 1. 5 Acres (I repeat Acres nor Hectares) was going to be marked off against Mr. R. Van Vlaanderen it would leave a balance of 6.3 Acres on Lot 3293 ... " 5.11 And at line 6 at page 164 of the record of appeal as follows: "Like you said, I am also worried after my previous experience with selling property IE ... back in 1992 or 1994 and with Mr. R Vlaanderen now (by the way he paid me (or 1.5 Acres Long Ago) that there could be more de laying tactics ... " 5.12 Our attention was drawn to the testimony of the respondent at line 10 of page 531 and line 4 of page 532 of the record of appeal, where he said: "I am familiar with these documents, for the purchase of approximately 3 acres the extent of land purchased was JlO " - not exactly known. I don 't believe it was to exceed 3 acres. Mr. Baker pointed the boundaries and said it was approximately 3 acres. I was purchasing approximately 3 acres. This is my handwriting I wrote 3 acres on top and Mr. Baker wrote 1 hectare." 5.13 And at line 6 of page 539 of the record of appeal where he said: "Yes Mr. Baker said I should get one hectare from both properties (487a & 3293/M}, I am following what A. J. Lungu surveyors said it was a proposal." 5.14 We were referred to line 5 at page 549 of the record of appeal, and line 11 at page 550 of the record of appeal as follows : "The extent of land to be gotten from 3293/M was not known but it was agreed from both lands. The documents now show that I was supposed to get 1. 5 acres from 3293/M. The remainder of 1. 5 Acres was to come from subdivision H Mr. Baker did in 2010. He gave me the title for the remainder of Subdivision H, they are with Mr. Chisulo. He did not take steps to alienate the 1.5 acres, basically we are waiting for the case to finish. The alienation of the subdivision, it has been delayed by this case to finish. I want to get 1. 5 acres to make 3 acres. It was wise to approach Mr. Phiri to facilitate the getting of the 1. 5 acres. We shall discuss with Mr. Chisulo and will take it from there." J11 5.15 We were also referred to line 6 at page 552 of the record of Appeal: "The measurements were not given to me, he just mentioned the owner. The surveyors are the ones that gave the extent on page 9 of the Plaintiffs Bundle of Documents." 5.16 It was submitted that the respondent's testimony confirmed the following facts that must be taken into consideration: a. The total extent of land purchased from Mr. Baker did not exceed 3 Acres; b. It was to be apportioned from two properties. Subdivision H 437a, and Lot 3293/M; and c. The Sketch Plan was prepared by Surveyors engaged by the respondent and was merely a proposal with measurements provided by the Surveyors and the respondent. 5.17 It was submitted that the Sketch Plan depicts that the total amount of land sold to the respondent is a total of 3.89699 Ares or 1.577 hectares made up of 2.531 acres (Lot 3293/M) + 5528 square meters / 1.36599 acres (S/D H of 437a and not 3 acres or 1 Hectare as (i) contained in the memorandum or note; (ii) the testimony of PWl; (iii) the instructions issued by Mr. Baker to his advocates; (iv) the Contract of Sale between the appellant and Mr. Baker. 5.18 It was argued that a proper evaluation of the evidence would not lead to a conclusion that: J12 . . a. the respondent was entitled to a larger extent of land (3.89699 Acres/ 1.577 Hectares) and not that agreed with Mr. Baker (3 Acres or 1 Hectare); b. a larger portion of land was to be marked off from Lot 32931M (2.5 Acres) than that which Mr. Baker instructed his advocates (1.5 Acres); executed with the appellant and confirmed by all the other witnesses; c. the difference between the Sketch Plan and the memorandum or note in extent of 0. 8966 Acres is marginal as that is almost the exact extent of land in dispute between the appellant and the respondent, which is 1 acre. 5 .19 We were urged to reverse the finding of the court below that (i) the Sketch Plan should be considered in determining the extent of land to be marked off from the two properties, particularly Lot 3293 / M; (ii) that the Sketch Plan depicts the exact extent of land sold to the respondent; (iii) that the variance in the Sketch Plan and the memorandum is marginal. Reliance was placed on the cases of Nkhata and Four Others v Attorney General1 and Zambia Telecommunications Company Limited v Chipowe2 on when an appellate court can reverse the findings of a trial court. 5.20 We were referred to the case of Grigsby v Melville3 , where the House of Lords held that evidence of the circumstances surrounding the transaction was not admissible to contradict the plain language of the conveyance, that likewise the Sketch Plan or any other evidence is J13 . . . . inadmissible to contradict the plain language of the conveyances. 5.21 It was argued that the Sketch Plan was not the most cogent evidence to be found in the circumstances surrounding the transaction as it did not comply with the necessary attributes of a memorandum or note. That it was inadmissible to contradict the plain language of the said memorandum or note. 5.22 It was argued that the court below paid no attention to the Contract of Sale entered into between the appellant and Mr. Baker as the court reasoned it come later, and could not bind the respondent who was not a party to it. That the court disregarded the principle that it is permitted to admit evidence of the other conveyance to assist in determination of a boundary. Reliance was placed on the case of Nielson v Poole4 and the learned authors of Halsbury's Laws of England1 4th edition Volume 4 (1) at paragraph 930 where it states: "Where an owner divides his land into parts and conveys each part to a different person, the court, in seeking to determine the boundary defined by one of the conveyances, may admit the other conveyances in evidence to assist in resolving an ambiguity." 5 .23 It was argued that the court below rejected the subsequent conveyance which clearly described the parcel of land to be apportioned to the respondent. That it further rejected the J14 . . letter authored by the late Mr. Baker to his advocates, which also described the exact extent of land to be marked off to the respondent and reasoned that it was not solely conclusive as to the transition between the respondent and Mr. Baker. Instead the court below considered the ranking of order of interests by dates, in determining which document it would rely on. 5.24 It was argued that the only basis the court below had for rejecting the subsequent documents which clearly depicted the extent of land to be conveyed to the respondent was their dates. However, the dates did nothing to validate the Sketch Plan which contradicted all the other do cum en ts which were not in dispute and were accepted and agreed upon. Likewise, the dates did not authenticate or validate the Sketch Plan which had no signatures or was legally binding in contradiction to the memorandum or note that provided for the total extent of land. 5.25 The appellant advanced that it is trite law that extrinsic evidence is inadmissible to contradict, vary or add to the terms of a contract. That the Sketch Plan is inadmissible to vary, add or contradict the extent of land agreed upon by the respondent and the late Mr. Baker as specified in the alleged memorandum or note relied upon by the respondent. Reliance was placed on the principle that parole evidence is inadmissible to vary or add or contradict a written document held in the cases of Jacobs v Batavia General Plantation Trust Ltd5 and Sam Amos Mumba v JlS Zambia Fisheries and Fish Marketing Corporation Limited6. 5.26 To buttress its submissions, the appellant referred to the case of Simpson v Foxon 7 where it was held that : "But what a man intends and the expression of his intention are two different things. He is bound, and those who take after him are bound, by his expressed intention. If that expressed intention is unfortunately different from what he really desires, so much the worse for those who wish the actual intention to prevail." 5.27 For emphasis, we were referred to the case of Maddison v Alderson8 where it was held that no action maybe brought upon any contract for the sale or disposition of land, or any interest in land unless the agreement upon which the action is brought, or the memorandum or note of it, is in writing and signed by the party to be charged or by some other person authorized by him. 5.28 It was submitted that the Sketch Plan cannot be relied upon to ascertain the extent of the land as it essentially varies and or imports new and different terms into the memorandum or note. Reliance was placed on the case of Timmins v Moreland Street Property Co Ltd9 wherein it was stated that: "I think it is still indispensably necessary, in order to Justify the reading of documents together for this purpose. that there should be a document signed by the party_ to be J16 charged, while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference express or implied to some other document or transaction. Where any such reference can be spelt out of a document so signed, then parole evidence may be given to identify the other document referred to, or as the case may be, to explain the other transaction, and to identify any document relating to it. If by this process a document is brought to light which contains in writing all the terms of the bargain so far as not contained in the document signed by the party to be charged, then the two documents can be read together so as to constitute a sufficient memorandum for the purposes of section 40 of the Law of Property Act, 1925. The laying of documents side by side may no doubt lead to the conclusion as a matter of res ipsa loquitur that the two are connected; but before a document signed by the party to be charged can be laid alongside another document to see if between them they constitute a sufficient memorandum. There must, I conceive, be found in the document signed by the party to be charged some reference to some other document or transaction." 5 .29 It was advanced the incorporation of the Sketch Plan should have been to assist the court to give effect to that which was already agreed upon as between the parties and not defeat the same. Reliance was placed on the case of Gordon-Cumming v Houldsworth10 where it was stated that: "I concede that the letters specified in the summons make a complete and final contract, and it follows that in J17 accordance with the well-known rule of law the terms therein expressed cannot be contradicted, altered, or added to by oral evidence. But it is just as well settled law that evidence may be given not to modify but to apply the contract by identifying any person or thing mentioned in it which requires identification; and I see no difference in this respect between the admissibility of a map or plan of the estate and that of any other item of evidence, so long as the plan is not used for the purpose of importing additional or different terms, but only to prove the external facts to which the contract relates." 5.30 It was argued by the appellant that the Sketch Plan was relied upon by the court below for the purpose of importing additional and different terms by marking off more land to the respondent than that agreed upon by the parties, 3 acres or 1 hectare from two properties and not the 1.0244 hectares from 3293/M as found by the court. 5.31 It was submitted that it is not the function of the court to ascertain intentions other than what is stated by the words used in the documents under consideration . For this submission reliance was placed on the case of Printing and Numerical Registration Company v Sampson 11 which was adopted with approval by the Supreme Court in the case of Colgate Palmolive (Z) Inc. v Abel Shemu Chuka and 110 others12 where the Supreme Court stated that: "If there is one thing more than another which public policy requires, it is that men of full age and competent J18 understanding shall have the utmost liberty of contracts and that their contracts, when entered into freely and voluntarily, shall be sacred and shall be enforced by the Courts of Justice." 5.32 The case of WN Hillas and Co Ltd v Arcos Ltd1 3 was relied upon for the maxim stated therein "verba ita sunt intelligenda ut res magis valeat quam pereat" (Words are to be understood that the subject matter may be preserved rather than destroyed). It was argued that the maxim could be applied to both the memorandum or note and the Contract of Sale to the extent that the parties clearly expressed their intention that the land to be assigned to the respondent should not exceed 3 acres or 1 hectare from two properties. That by assigning 1.02244 hectares from one property the court below did not preserve that which was agreed. 5.33 It was submitted that the court below in relying on the Sketch Plan, which contradicted the other documents, went against the principle expounded in the case of Dangote Industries Zambia Limited v Enfin Limited14 , where we pronounced ourselves on an instance where an agreement is before court for interpretation and said: "Where an agreement is before Court for interpretation, the role of the Court is to merely ensure that the manifest intention of the parties' triumphs." J19 5 .34 Further, reliance was placed on the learned authors of Chitty on Contracts2 at paragraph 12, which reads as follows: "The cardinal presumption is that the parties have intended what they in fact said, so that their words must be construed as they stand. That is to say, the meaning of the document or a part of it is to be sought in the document itself: one must consider the meaning of the words used, not what one map guess to be the intention or the parties. " 5.35 The appellant argued that if the court felt that the Contract of Sale was unenforceable as against the respondent, it ought to have similarly found that the Sketch Plan was unenforceable as against the appellant. That the court should also not have relied on the Sketch Plan to amend , vary or simply change the provisions of the Contract of Sale in relation to the extent of land to be marked off for the benefit of the respondent. Reliance was placed on the case of Re Strand Music Hall Co Ltd15 where it was stated that: "The proper mode of construing any written instrument is, to give effect to each and every part of it, if this is possible, and not to strike out or nullify one clause in a deed, unless it is impossible to reconcile it with another and more express clause in the same deed." 5 .36 Ultimately, it was submitted the court below erred in accepting the Sketch Plan as the document to determine J20 the extent of land to be marked off from Lot 3293/M when the same Sketch Plan contradicted all the circumstances. 5.37 We were urged to reverse the lower court's finding in relation to the sketch plan. 6.0 The respondent's submissions 6.1 In response to the appellant's heads of argument, the respondent filed his arguments on 11 th July, 2022. 6.2 From the onset, it was submitted that, in light of the fact that Mr. Baker is now deceased, the evidence that was to be relied upon by the court in ascertaining the portion of land which was to be delineated or marked off from Lot 3293/M was the evidence adduced in form of documents and the oral evidence of the parties to this action and their • respective witnesses at trial. 6.3 It was argued that the lower court made a finding of fact that the Memorandum of Sale relating to the sale of land between the respondent and Mr. Baker was silent on the extent of the land that should be delineated from Lot No. 3293 /M. Further, that owing to the respondent's long-term peaceful relationship with Mr. Baker, which was anchored on good friendship and trust, the court believed the respondent's testimony that when the physical features representing the boundary of the land sold to the Respondent were pointed out to the Surveyor, Mr. A. J. J21 Lungu, it was done in the presence of Mr. Barker hence the Sketch Plan was done with Mr. Baker's approval. 6.4 Reliance was placed on the learned authors of the Halsbury's Laws of England3 at paragraph 36 where they state that in dealing with "identification of the property and interest disposed of and the nature of the disposition", the following is taken into consideration: "Where the contract contains a description, which renders the property ascertainable, oral evidence has been admitted to complete the identification." 6.5 It was submitted that the trial Judge was on firm ground to rely on the oral testimony of the respondent and surrounding circumstances that existed prior to the second conveyance to the appellant as guided in the cases of Masterton Homes Pty Ltd v Palm Assets Pty16 and County Securities v. Challenger Group Holdings Pty Limited17 which were cited by the trial court. 6.6 That the trial judge made a further finding of fact that the respondent was sincere and reliable and had no motive to give false testimony to the trial court in relation to the issues that where before it for determination. It was submitted that the finding of fact by the trial court amounted to a finding of credibility. This finding of credibility further fortified the trial court's decision to rely on the Sketch Plan which the appellant argued that the court should have not done. In support of this J22 submission, reliance was placed on the case of Kenmuir v Hattingh18 where the Supreme Court held that: "Where questions of credibility are involved an appellate court, which has .not had the advantage of seeing and hearing the witness, will not interfere with the findings of fact made by the trial judge unless it is clearly shown that he has fallen into error." 6.7 That in the case of GDC Hauliers (Z) Limited v Trans Carriers Limited19, the Supreme Court held that: "Findings of credibility are not to be interfered with by an appellate court which did not see and hear the witnesses at first hand." 6.8 Further, in the English case of Powell v Streatham Manor Nursing Home20 the House of Lords held that: "On appeal from the decision of a judge sitting without a jury, the jurisdiction of the Court of Appeal is free and unrestricted. The court has the same right as the trial judge to come to decisions on issues of fact as well as of law. But the court is still a court of appeal, and in exercising its functions it is subject to the inevitable qualifications of that position. Where the question is one of credibility, where either story told in the witness-box may be true, where the probabilities and possibilities are evenly balanced, and where the personal motives and interests of the parties cannot but affect their testimony, an appellate court should be reluctant to differ from the judge who has seen and heard the witnesses and has had J23 . . the opportunity of watching their demeanour, unless it is clearly shown that he has fallen into error." 6.9 It was submitted that the trial court's findings were based on the analysis of the events that took place before the conveyance between Mr. Baker and the appellant. These events were explained to the trial court 1n the respondent's oral testimony, which the court below found reliable and credible enough to ascertain the portion of land that was to be marked of from Lot 3293/M regardless of the Memorandum being silent. Further, the unshaken evidence of the respondent appearing on pages 525, 526, 527 and 532 between paragraphs 10 to 15 of the Record, Vol. 2 was that the sketch plan which was drawn by the Surveyor while Mr. Baker was still alive fortified the court's findings. In this regard, we were urged not to interfere with the findings of fact that were made by the trial court as a result of its evaluation of the respondent's demeanour at the trial. 6 .10 Reliance was also placed on the case of Killian Ives Mulenga v the Attorney General21 where this Court held as follows: "In the case of Eddie Christopher Musonda vs. Lawrence, the Supreme Court in reference to demeanour of witnesses stated that: Also, it is a well-established principle that the learned trial judge is a trier of facts, he has the J24 advantage of observi.ng the demeanour of witnesses to determine as to who was telling the truth in the trial. Bearing that in Mind, we cannot upset his findings. Having combed the record, we find no material or basis upon which we can reverse the finding of fact made by the trier of facts on the demeanour and credibility of DWI. We are further of the view that there was balanced evaluation of the evidence by the court below contrary to the, contention by the Appellant. The court below considered the evidence by both parties." 6.11 It was submitted that none of the conditions set out in the Nkhata and others case cited by the Appellant on reversal of findings of fact are applicable to this case to warrant the reversal of the findings of fact that were made by the trial court. 6.12 We were invited to consider when an appellate court is at liberty to interfere with a trial court's findings where there is an unbalanced evaluation of the evidence before the trial court. Reliance was placed on the case of Attorney General v Marcus Kampumba Achiume22 where the Supreme Court stated that: "An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a mis-direction which no trial court should reasonably make, and entitles the appeal court to interfere." J25 6 . 13 It was submitted that the trial court made the findings of fact from the evidence that was placed before it. This fact is evidenced from the trial court's analysis of the facts and the law at page 36 of the record of appeal. 6 . 14 The respondent argued that whilst an appellate court may not lightly reverse findings of fact made by a trial court, it could draw its own inferences contrary to those of the trial court. Reliance for this submission was placed on the case of Khalid Mohamed v the Attorney General23 where the Supreme Court held that: "The appellate court may draw its own inferences in opposition to those drawn by the trial court although it may not lightly reverse the findings of primary facts." 6.15 It was submitted that the evidence which was presented by the parties before the court is such that it will not permit this Court to draw its own inferences in opposition to those that were drawn by the learned trial judge, as the findings were of primary facts not findings based on the drawing of conclusions or inferences from undisputed primary facts. 6.16 The respondent argued that the trial court was on firm ground when it found as a matter of fact that the transaction between the respondent and Mr. Baker created the former 's interest first with regard to Lot No. 3293/M and the appellant's interest ranked second. Further, that the contract of sale that created the appellant's interest (which was the second interest) in respect of Lot No. J26 3293/M between the appellant and Mr. Baker is not conclusive as to the terms of the transaction between Mr. Baker and the respondent that created the first interest. In support of this submission, reliance was placed on the case of Banda and Anor v Mudimba24, where the Supreme court held as follows: "At law and in equity, the basic rule is that estates and interests primarily rank in the order in which they are created." 6.17 On the appellant's submission that the Sketch Plan is inadmissible to vary, add or contradict the extent of land agreed upon by the respondent and the late Mr. Baker as specified 1n the Memorandum relied upon by the respondent, it was submitted that the argument was not only misleading to this Court, but also not supported by any evidence that the court below relied on the Sketch Plan to vary the agreement between Mr. Baker and the respondent. We were referred to what the trial court stated in its judgment at page 36 of the record of appeal that: "While the Memorandum or note relating to the sale of land between the Plaintiff and Mr. Baker is silent, on the fact alleged by the Plaintiff that land in extent of 1.0244 hectares was to be delineated from Lot No. 3293 lM in his favour, and the remainder from subdivision H of Farm No. 487a, the Plaintiff relied on the sketch plan drawn in January 2007 by Messrs AJL Land Surveyors. The sketch plan clearly depicts the parcel of land the Plaintiff bought from Mr. Baker." J27 . . 6.18 The respondent conceded and agreed with the appellant's argument that parole evidence is inadmissible to vary, add to or contradict a written document. However, according to the case of Turner v Forwood25 : "The parole evidence rule applies only to contracts that are wholly in writing, and thus has no scope to operate until it has first been ascertained that the contract is wholly in writing." 6.19 It was argued that from the Judgment of the trial court, it is clear that the court found, as a matter of fact, that the Memorandum relating to the sale of land between Mr. Baker and the respondent was silent on the amount or extent of land that was to be delineated from Lot No. 3293/M in favour of the respondent. The trial court's finding of fact demonstrates that the Memorandum between Mr. Baker and the respondent did not amount to a contract of sale that was wholly in writing and as such, the parole evidence rule cannot be applied herein as held in the Turner Case cited above . That the Memorandum does not depict the entire agreement between Mr. Barker and the respondent regarding the delineation of land from the 2 parcels of land sold by Mr. Barker to the respondent. 6.20 The respondent contended that the trial court did not rely on the Sketch Plan to vary or contradict the contents of the Memorandum as alleged by the appellant, but relied on the Sketch Plan to determine conclusively the extent of land that was to be delineated from Lot No. 3293/M since J28 the Memorandum was silent. That the trial court correctly indicated that in reaching a decision as to what extent of the land needed to be delineated, it was obligated to consider the surrounding circumstances that existed prior to the second conveyance to the appellant as guided in the cases of Masterton Homes Pty Ltd v Palm Assets Pty supra and County Securities v Challenger Group Holdings Pty Limited supra cited by the trial court and appearing at page 35 of the record of appeal. 6.21 The respondent submitted that in light of the trial court's reliance on the two (2) cases above, the trial court took into consideration the Sketch Plan, which conclusively reveals the exact extent of land that is to be delineated from Lot No. 3293/M in favour of the respondent. That the dispute between the parties was aptly summarised by the Supreme Court in its judgment in the case of VDF Property Management Limited and Ronald Van Vlaanderen26, a case involving the same parties, at page J4 (page 430 of the of the record of appeal) where the Supreme Court held as follows: "The negotiations culminated in a rather unusual settlement. The respondent agreed to surrender the title deeds in his possession after receiving some comfort from Mr. Adams Aziz Hussein Dawood SC the deceased's advocate, that his interests in relation to the property would be protected. The 2 nd defendant also asserted that in order to fast track the change of ownership in Javor of the appellant she would transfer the whole of Lot No. 3293 lM Lusaka which included the respondent's portion J29 of 1.0244 Hectares into the appellant's name and thereafter mark off and subdiui.de his portion from the whole Lot and pass them back to the respondent. It is not clear from the record why the parties did not follow the simpler and cost-effective method of subdiui.ding the various portions and thereafter marking them off from the parent deeds. After the title deeds were registered in the name of appellant issues of contract and size of land arose between the parties. The respondent was of the ui.ew that he was entitled to 1. 0244 Hectares of Lot No. 3293 lM Lusaka while the appellant believes the respondent is only entitled to 1.5 acres of the disputed piece of land." 6.22 The respondent contends that it is clear that the dispute between the appellant and respondent was in relation to the exact size of land the respondent was entitled to from Lot No. 3293/M and not whether the size of land depicted in the Sketch Plan and Memorandum is equivalent as argued by the appellant. 6.23 We were referred to the case of Phinate Chana v Zesco Limited27, where we endorsed the view that in construing a contract, a court may resolve any ambiguity by looking at its commercial purpose and the factual background against which it was made. The court was of the view that background information and surrounding circumstances can be relied upon as held in the case of Friday Mwamba v Sylvester Ntego and Others28. 6.24 It was submitted that the trial court was on firm ground for resorting to the use of the Sketch Plan in determining the J30 extent of land that belongs to the respondent. The circumstances surrounding the conveyance between Mr. Baker and the respondent that the trial court took into consideration in arriving at its decision gave sufficient background as to what extent of Lot No. 3293/M was to be delineated in favour of the respondent. 6 .25 We were urged to dismiss the appeal in its entirety for want of merit with costs to the respondent. 7 .0 The appellant's arguments in reply 7 .1 On 18th August, 2022, the appellant filed its heads of arguments in reply. In sum, the submissions regurgitate the same submissions made in support of the appeal. Therefore, we shall summarize them. 7 .2 In reply to the respondent's submissions that the lower court was on firm ground to rely upon the oral testimony and Sketch Plan adduced by the respondent in order to determine the extent of land that was to be marked off from Lot No . 3293/M, it was submitted that credibility of a witness cannot be the sole determining factor in a matter. That a court ought to consider and make a balanced evaluation of all the evidence placed before it by the parties in order to arrive at a fair and just conclusion. Reliance was placed on the case of Gerardus Adrianus Van Boxtel v Rosalyn Mary Kearney (A Minor by Charles Kearney her Father and Next Friend)2 9 where the Supreme Court J31 stated that the totality of the evidence must be considered. 7 .3 It was submitted that the court below ought to have considered all the evidence placed before it by the parties in order to make a balanced evaluation and determination as to the portion that was to be marked off from the disputed lot. That the court below solely relied upon the oral testimony of the respondent in exclusion of the documentary and oral evidence submitted by the appellant in concluding that the Sketch Plan properly depicted the parcel of land to be marked off from the disputed lot. 7.4 We were asked to note that the instructions to the Advocates and the Contract of Sale were duly executed by the late Mr. Baker in 2008 after the Sketch Plan was prepared. The appellant asked the Court to consider why Mr. Baker would have agreed to the said Sketch Plan, then proceed to instruct his Advocates thereafter that only 1. 5 acres had to be marked off from the disputed lot. 7 .5 It was submitted that the trial court glossed over vital evidence on the record before arriving at its conclusion that the Sketch Plan was indeed approved by the late Mr. Baker and hence, the extent therein correct. We were urged to reverse this finding by the trial court in line with the cases of Nkhata and Four J32 Others v Attorney General supra, Nkongolo Farms v Zambia National Commercial Bank30, Wilson Masauso Zulu v Avondale Housing Protect Limited31 . 7.6 We were urged to draw our own inferences based on the facts and the sequence of events as guided by the case of Khalid Mohamed v Attorney General supra. 7.7 Ultimately, the appellant maintained that the court below ought to have strongly considered the Contract of Sale and written instructions from Mr. Baker in arriving at a conclusion as to the extent of the land to be marked off as both these documents expressly stated that the portion was to be 1.5 acres. The appellant charged that the court below preferred to rely upon extrinsic evidence in the form of the Sketch Plan when the same clearly varied and contradicted the terms expressly agreed upon by the parties in the Memorandum being that the extent of land sold to the Respondent by the late Mr. Baker. 8.0 Our considerations and decision 8. 1 We have carefully considered the sole ground of appeal together with the entire record and the arguments by counsel for the parties. We are grateful for the authorities cited on both sides of the appeal. 8.2 The appeal essentially seeks a review of the lower court's decision primarily centered on the validity and reliability of J33 the sketch plan in determining the land extent that the late Baker entitled to the respondent that was to be marked off Lot No. 3293. Mr. Mwansa, SC and Mrs. Findlay, learned counsel for the appellant, forcefully argued that the learned Judge erred to rely on the sketch plan. That the learned Judge had to consider several other factors besides the respondent's credibility. That in any event the sketch plan relied upon, drawn in 2007, was marked as a 'proposal'. Therefore, it could not be relied upon by the lower court as it was neither signed by its maker nor by the parties. 8.3 On the other side of the appeal, Mr. Sambo supported the reasoning of the learned trial Judge when he found that the respondent's interest 1n Lot 3293 /M Lusaka took precedence over the appellant's interest. 8.4 The appeal essentially seeks a review of the lower court's decision primarily centered on the validity and reliability of the sketch plan in determining the land extent that the late Baker entitled to the respondent that was to be marked off Lot No. 3293. The lower court begun by considering section 4 of the Statute of Fraud which provides as follows: "No action shall be brought upon any contract for the sale or other disposition of land or an interest, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." J34 8.5 He held that the memorandum in terms of the Statute of Fraud forming the basis of the contract between the respondent and Mr. Baker was not in dispute, as it satisfied the requirement spelt in section 4 . The said memorandum is at page 108 of the record of appeal. 8.6 It is trite that section 4 of the Statute of Frauds is a legal provision that requires certain contracts to be in writing and signed by the party to be bound. These contracts include contracts of sales of land. The purpose of the provision is to prevent fraud in the formation of contracts by requiring clear evidence of the terms and the parties to the contract. 8 .7 Having accepted that the late Mr. Baker's and the respondent's relationship was based on the memorandum dated September 1998, the learned Judge found that its language was not plain and clear in terms of the exact extent of land that was to be marked off from Lot No . 3293/M and subdivision Hof Farm No. 487a. 8 .8 The learned Judge accepted the evidence of the sketch plan at page 110 of the record of appeal as produced by the plaintiff to the extent that it clearly depicted the parcel of land that the respondent had purchased from the late Baker. That 1.0244 hectares was to be marked off from Lot 3293 /M. The learned Judge accepted that 5528 square metres was to be marked off from subdivision H of Farm 487 a . This fact was not in dispute by the parties and it was confirmed by the sketch plan . J35 8.9 At page J26 of his judgment (page 34 of the record of appeal) , the learned Judge accepted the case of Grigsby v Melville supra to the extent that it is trite law that evidence of the circumstances surrounding a transaction was not admissible to contradict the plain language of a conveyance . With particular reference to the memorandum, the respondent (PWl) told the trial court that he purchased approximately 3 acres of land from Mr. Baker. He stated that he did not believe that the extent of the land exceeded 3 acres. Under further cross-examination as shown at page 532 of the record of appeal, he stated the following: "I was purchasing approximately 3 acres. This was before the official measurement of the property was done. This is my handwriting. I wrote 3 acres on top and Mr. Baker wrote 1 hectare, I did not see him write this, it was given to him to sign. I was not concerned because we did not measure the property." 8.10 In line with the Grigsby v Melville case, the learned Judge accepted the evidence of the sketch plan to the extent that 5528 square metres was to be marked off from subdivision Hof Farm No. 487a because this evidence did not contradict the plain language of the memorandum and further, it was not in dispute between the parties. 8 . 11 The reliance on the sketch plan to the extent that the sketch plan stated that 1.0244 hectares was to be marked off from Lot 3293/M was inadmissible because it contradicted the plain language of the memoranda as agreed between Mr. J36 .. Baker as vendor and the respondent as purchaser. In the case of Grigsby v Melville it was stated as follows: "The action is not an action for rectification of the conveyance to accord with the true intention of the parties to it; and given the most cogent evidence to be found in the circumstances surrounding the transaction that it did not give effect to that intention that evidence would not, in my judgment, be admissible to contradict the plain language of the conveyance. It is the unhappy fact that conveyances sometimes do convey that which was not intended to be, or exclude that which should have been conveyed." 8.12 It is clear from the judgment of the court below that by finding that the respondent and Mr. Baker had a long-term peaceful relationship anchored on good friendship and trust, the learned Judge considered the action to be one for the rectification of the conveyance to accord with the true intentions of the parties. This evidence was irrelevant in the face of the memorandum or note that bound the parties to it. As such there was a misdirection on the part of the lower court to consider such evidence. These findings can only be reversed on appeal in specific instances, as set out in a plethora of cases including the Wilson Masauso Zulu v Avondale Housing Project case where the Supreme Court held inter alia that: "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts." J37 .. 8 . 13 In the present case, the learned Judge considered the oral evidence of PW 1 above what was stated in the memorandum and other documentary evidence, such as Mr. Baker's instructions to his advocate at page 163 and 164 of the record of appeal. Having found, without contestation, that 5528 square metres (or 1.365 acres) were to be marked off from subdivision H of Farm 487a, the outstanding balance to make a hectare would have been 44 72 square metres ( or 1.105 acres) to be marked off Lot 3293/M. By adding 5528 square metres and 4472 square metres, the respondent was entitled to a total of 10,000 square metres approximately (or 2.47 acres = 1 hectare) which substantially conforms to what was stated in the memorandum. 8.14 The respondent argued that the learned Judge made a finding of fact as to the extent of the land to be marked off from Lot 3293/M based on the respondent's credibility. That he had no reason to give false testimony. Granted the respondent was a credible witness, however, this was essentially a dispute about defining the boundaries agreed to by the respondent and Mr. Baker. The credibility of the respondent's testimony could not alter the agreed extent as stated in the memorandum. The respondent was bound by its terms . 8. 15 It was further submitted that it was a fact that the transaction between the respondent and Mr. Baker created the respondent's interest first with regard to Lot No. 3293/M. This was the point Mr. Sambo drove in his J38 submissions. However, this matter was not about competing interests by the appellant and respondent over Lot 3293/M. Their acquired interests over the said land were distinguishable and well defined. If they were not, the respondent would never have availed the original Certificate of Title to the appellant to legally entrench its interest before he obtained his own title. The argument by the respondent is accordingly misplaced. 8.16 The present case is distinguishable from the case of Banda and Another v Mudimba cited by the respondent, not only because the issue here is primarily relating to boundaries of neighbouring properties, but also that the legitimacy of the interest of either of the parties was not in question at trial. 8.17 In the circumstances of this case, we are satisfied that the learned Judge's finding on the issue of the extent of land to be marked off Lot 3293/M was informed by irrelevant evidence and a misconception of the facts. Inevitably, the lower court fell into error. The sole ground of appeal is allowed. 9.0 Conclusion 9 .1 Having found merit in the sole ground of appeal, we make the following orders: 1. That 4472 square metres (or 1.105 acres) in extent be marked off from Lot 3293/M in favour of the respondent; J39 11 That the appellant should take all necessary steps to mark off 4472 square metres (or 1.105 acres) from Lot 3293 within a period of 90 days from the d e f this Judgment. 9 .2 The costs of the appeal to be bo e respondent, to be taxed in default of agreement COURT OF APPE L JUDGE C. K. Makungu ef' COURT OF APPEAL JUDGE PPEALJUDGE J40