Balashundram v Bible Society of Zambia (Appeal 124 of 2013) [2015] ZMSC 68 (24 November 2015)

'. J1 SCZ SELECTED JUDGMENT No. 38 OF 2015 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: P.928 Appeal No. 124/2013 SCZ/8/50/2013 WILFRED BALASHUNDRAM APPELLANT AND BIBLE SOCIETY OF ZAMBIA RESPONDENT Coram: Chibomba, Muyovwe and Malila, JJS On 3rd November, and 24th November, For the Appellant: Mr. K. Kaunda (.f Messrs Ellis & Company For the Responde'1t: N/ A (Messrs AMC Legal Practitioners) JUDGMENT Malila, JS deli'lered the judgment of the court. Case refereed to: 1. George Lewis v. Zimco Limited 1992/HP/ 725 2. Wesley Mul:mgushi v. Catherine Bwale Mizi Chomba (2004} ZR 96 3. Mobil Oi: Zambia Limited v. Lotto Petroleum Distributors Limited (1977) Z-"'.336 4. Zambia Bata Shoe Company Limited v. Vin-Mas Limited SCZ judgment NO.4 of ;994 • J2 5. Mwenya ar.d Randee v. Paul Kapinga SCZ judgr:tent No. 12/ 1998 6. Chillingworth v. Esche (1923) All ER 97 7. Winn v Bull (1877) 7Ch. D 29 8. Eccles v. Bryant Pollock (1948) Ch. 93 9. Branca v. Cobarro (1947) KB 854 10. Yo B. ar.d F. Transport v. Supersonic Motors Limited (2000) ZR 22 11. Uutale 'J. Zambia Consolidated Copper Mines LimitEd SCZ No. 12, 1994. Legislation referred to: 1. R"Jle 58(2) of the Supreme Court Rules, Chapter 25 of the Laws of Zambia 2. Statute ef Frauds, 1677 3. The Rent Act, Chapter 206 of the Laws ofZambic. Works referred to: 1. Cheshire ani Fifoot on the Law of Contract 10th Edition 2. HalsburJ;'s Laws of England (4th Edition) Fel. 9 3. Chitty on Contracts (General Principles), Vol.1,13th edition This appeal is against the ruling of the High Court (Kondolo, J) given on the 4th of February, 2013 in which the court granted the respondent vacant possession of its property, namely, Plot No. 5918, Lunsemf.va Road, Kalundu (hereinafter called 'the subject property'), on conditions specified in the Ruling. The appellant was also ordered to pay all outstanding rent arrears. In the same judgment, the court dismissed the appellant's counter claim for J3 specific performance of an alleged contract of sale of the subject property. The respondent was the owner of the subject property which had been let out to the appellant. In breach of :he lease agreement, the appellant fell into rent arrears, prompting the respondent to commence an action for an order for the recovery of the leased premises. outstanding rent amounting to K18,OOO,000.00 and for costs of the action. Long before the commencement of the action by the respondent, the respondent had, on the 3rd December, 2010 offered :0 sell the subject property to the appellant for K1,200,OJO,000. The sale was, however, not cor_eluded. In opposmg the respondent's application, the appellant admitted that he was m breach of the lease agreement as at the date of commencement of the respondent's action on the 18th October, 2012, bu: that he had since been assoilzied of that breach and had in fact made advance rental payment up to December, 2012. The appellant also launched his own ela:m by way of a counter elaim, J4 alleging L1at he had entered into an agreeoent for the purchase of the subject property which he sought to have specifically performed. The learned High Court judge upheld the respondent's claim in the manner earlier indicated, but dismissed the counter claim. Unhappy with the High Court's Ruling, the appellant appealed to this court and framed three grounds of appeal as follows: 1. The court below erred in both law and fact when it dismissed the appellant's counter claim since:- (i) It relied on the case of George Lewis v. Zimco Limited (1992) S. J. whose facts and subject are totally different from the facts and subject herein; (ii) Unlike in the said case of George Lewis v. Zimco (1992) the sale herein is governed, amongst others, by the Statute of Frauds of 1677; (iii) The terms and conditions of the sale herein are known as they are prescribed in the Law Association of Zambia General Conditions of Sale; (iv) The onus of preparing the contract of sale is on the respondent as vendor. which obligation the respondent has refused or neglected to lDldertake without a valid reason; J5 (v) The court below in fact agreed that the offer letter herein is quite detailed in that it contains a clear description of the subject matter, a clearly stated price and states the obligations of the parties. 2. The court below having agreed that the offer letter herein is quite detailed erred in both law and fact by granting the respondent liberty to enforce vacant possession herein; and 3. The court erred in both and law and fact by awarding costs to the respondent." Both parties to the appeal, through their respective learned counsel, filed in heads of argument. At the hearing of the appeal on the 3rd of November, 2015 Mr. Kaunda, learned counsel for the appellant, was present. There was however, no appearance from the respondent's counsel on the record, namely: Messrs AMC Legal Practitioners. Upon satisfying ourselves from the records kept by the Court Clerk that the notice of hearing was served on the respondent's advocates on the 8th October, 2015, we proceeded to hear the appeal. In so doing we took into :::.ccountthe written heads of argument filed on behalf of the respondent. J6 Mr. Kaunda indicated that he was relying on the written heads of argument. In those heads of argument, the learned counsel alleged multiple errors of law and fact and misdirections on the part of the learned bal Judge. Under gr.:mnd one he submitted that it was gross misdirection on the part of the court to rely on the case of George Lewis v. Zimco Limitedl1) because in that case what was involved was the sale and purchase of a mo:or vehicle which did not require a contract to be evidenced in writing as is the position in the present case involving the sale of real property, being Stand Nuober 5819, Lunsemfwa Road. Here section 4 of the Statute of Frauds 1677 applies. In the present case tne requirement for a memorandum in writing to evidence :he agreement for the purchase of the s'.lbject property was satis::led by the offer letter given by the respondent to the appellant and on which the appellant signified acceptance. According to M:-. Kaunda, the offer letter contained the purchase price, the identity of the property, the names of the parties and, therefore, ':Jecamea complete agreement upon acceptance by the J7 appellant. There was no disagreement whatsoever on any terms or the condition of the sale. The learned counsel referred us to the case of Wesley :vIulungushi v. Catherine Bwale Mizi Chomba(2) where we stated, among other things, that the provision of Section 4 of the Statute of Frauds 1677 requires the contract of sale of land to be in writing or to be evidenced in writing. According to Mr. Kaunda although the letter was written and signed by an agent of the respondent, it nonetheless does not absolve the respondent from its liability. For this proposition, the learned counsel referred us to our decision in Mobil Oil Zambia Limited v. Lotto Petroleum Distributors Limited(3). Although Horizon Properties was acting on behalf of the respondent, a good contract, according :0 Mr. Kaunda, was consummcted between the appellant and the respondent. The case of Zambia Bata Shoe Company Limited v. Vin-Mas Limited(4) was also cited in aid of this submission. Mr. Kaunda took great reservation to the rejection by the court below of the cor_tract evidenced in the letter of offer, particularly after the learned judge had indicated in his judgment that the letter J8 in question was quite detailed and contained a clear description of the subject property, a clear statement of the price and the obligations of the parties. According to Mr. Kaunda, as long as the agreement on the sale of land complied with section 4 of the S:atute of Frauds, the agreemen: becomes enforceable and other terns such as the time in which the paying of the purchase price is to be made, are only relevant i: a term to that effect is contained in the note or the memorandum evidencing the agreement. In the present case, went on the learned counsel, there was no such term. And, in any case, the appellant had at all times been ready to perform his obligations but the respondent had allegedly refused to cooperate and hence the counter claim. The learnei counsel relied on the case of Mwenya and Randee v. Paul Kapingal5) where the court, in considering allegations of delay to complete a sale of land, referred to the learned authors of Cheshire and Fifoot on the Law of Contract lOth Edition and stated that where the parties expressly stipulate in the contract that time is of the J9 essence, then it shall be so. Secondly, that where only one party has been guilty of undue delay and is notified by the other party that unless performance is completed within a reasonable time, the contract will be regarded to be at ar_end, then time will again be of the essence. And finally, that where the nature of the surrounding circumstances :nakes it imperative that the agreed date should be precisely observed. The gist Df Mr. Kaunda's argume::lt under ground one, as we understand it, is simply that because the letter of offer contained the material conditions for the sale of the property, it constituted, upon acceptance, a complete agreement which the appellant was entitled to enforce. His further argument was that the obligation of preparing the contract of sale lay with the vendor, which the respondent in the present case was, but that it failed, neglected or refused to prepare such contract of scle. Under ground two, it was Mr. Kaunda's contention that the court below, having agreed that the offer let:er was quite detailed, erred in both law ar_dfact by granting the respondent liberty to enforce JIO vacant possessIOn. No legal arguments were preferred by Mr. Kaunda in his written heads of argument in support of this allegation against the learned trial judge. Not unexpectedly, Mr. Kaunda equally offered no arguments regarding ground three on costs. Through the heads of argument filed on behalf of the respondent by Messrs A:'v1C Legal Practitioners, the respondent opposed the appeal for various reasons. In relation to ground one, it was argued that the facts of the case needed not to be on ail fours with the case of George Lewis v. Zimco Limited for the learned trial court to rely on that case in his judgment. The argument made under that ground is that the learned trial judge in the court below borrowed the principles that were explained in the George Lewis v. Zimco Limited(l) case where the le:ters exchanged by the parties did not constitute an offer a...'l.dacceptance respectively. capable of being the subject of an order for specific performance. The court's reliance on this case was merely to show that all the elements of the valid contract must be presen: to warrant an order for specific performance. In cacu, 938 the fact that there was no con:ract of sale executed in furtherance of the pu:-ported agreement, and no consideration paid, reinforced the position that no valid agreement was reached because the essential element for such an agreement were not present. It was further arg-J.edthat although there was no dispute that there was an o::ferand that an acceptance was made, the said offer was subject tc the condition to the effect that the contract of sale was to be drawn and executed between the parties, which contract of sale was to set out the terms and cond:tions of the sale of the subject property. No such contract was made. The net result was that no valid agreement for the conveya.. J.ceof the subject property exists. In regard to the issue of the Law Association of Zambia General Conditions of Sale, it was argued on behalf of the respor-dent that such conditions are mere guidelines and were superseded in any case by special conditions where a contract of sale was drawn and signed by the parties. J12 It was fu:ther argued on behalf of the respondent that the learned trial judge was right when he held that although the offer letter in contentio::l was quite detailed, there was n~ valid contract of sale since the offer was conditional upon the contract of sale being drafted and signed by the parties. The case of Wesley Mulungushi v. Catherine Bwale Mizi Chombal2) was cited to support the proposition that the court wi[ decree specific performa...ce only if it would do more perfect and complete justice than the award of damages. In the instance case, it will not be perfect or complete justice for this court to grant the appellant an order for specific performance. Counsel for the respondent ended their written submissions on ground or:e, by arguing that the respondent has no intention of entering into the contract of sale of the property in question, and therefore, a....order for specific performance will be unjust and will cause irrepcrable damage to the respondent. Under ground two, the learned counsel for the respondent supported the learned trial judge's order granting the respondent liberty to enforce vacant possession of the property. We were J13 referred to the originating notice of motion and the accompanying affidavit i:l the record of appeal and particu13.rly,to the relief sought by the respondent in the lower court. The learned counsel argued that the respondent relied on sectioJn 13(1)(a) and (e) of the Rent Act, chapter 206 of the laws of Zambia, and that it proved at trial that the appellant had defaultec. on paying rent due for the lease of the proper~y, ana. above all, that the respondent required the property for use by its employees. Therefore, the order of the court below to the effect that the respondent be granted vacant possession was the proper one t::>make in the circumstances. It is for this reason that the respondent urged us to dismiss the appeal. The learned counsel for the appellant filed in heads of argument in reply. In these heads of arguoent in repl?, the position of the appellant was rehashed and no substantial additional legal points were advanced. We have carefully examined the documents on the record of appeal as well as the spirited arguments ma::le by the learned counsel for the appellant. It seems to us that the real, and in fact only, issue J14 for determination in this appeal is w~l.etherthere was an enforceable contract for the conveyance of the subject property from the respondent to the appellant. In other words, whether the agreement for the sale and purchase of the property as evidenced in the offer letter to purchase the property dated the 3rd of December, 2010 from Horizon Properties to Mel Shal Enterprises, constituted an agreement which can squarely be subject of an order of specific performance. We do not think that the arguments regarding satisfaction of the requirements under the Statute of Frauds 1677 or those reg:rrding agency and the role of Horizon Properties played in the tram,action have any relevance here. The submissions of counsel in t::-tisregard are, with due respect, out of focus. Given the significance to this dispute of the sale letter we take the liberty to reproduce its relevant portions. It rea.ds as follows:- I J15 "03-12-2010 MEL SHALENTERPRISES P. O. Box 34805 Lusaka Dear Sir, OFFER TO PURCASE PROPERTY No. 5819, LUNSEMFWAROAD, KALUNDU to the above mentioned property and your to purchase the same, we now offer it to you on Follo'lo'ing your visit subsllGuent interest behalf of our client on the following terms and conditions: 1. The Vendor is selling as beneficial owner. 2. The purchase price for the said property shall be ONE BILLIONTWO HUNDREDMILLIONKWACHAand it shall be paid in full to Bible Society of Zambia who is the Vendor. 3. Agency fees of Fifty Million Kwacha shall be paid directly to Horizon Properties, by the purchaser, as agreed between the parties. 4. The Vendor shall be responsible for Property Transfer Tax payment Consent, while any outstanding utility bill will be borne by the Purchaser who is the tenant on the property. 5. This offer is valid for ONLY fourteen (141 days from this to the terms and conditions date and I shall be subject drafted in the Contract of sale. 6. Each party shall bear their legal costs. Yours faithfully, Horizon Properties (signed) Barbara M. K. Kiwempindi DIRECTOR. OPERATIONS Please indicate acceptance of this offer by signing both copies and returning one to us. I... WILFREDBALASUNDARAM... Do accept this offer (DIRECTOR) (signed) 14-12-2010" J16 At the hearing :Jf this appeal, we sought clarification from the learned counsel for the appellant as to how the letter which was addressed to Mel Shal Enterprises became an offer to the appellant in this case. M:-. Kaunda clarified that Mel Shal Enterprises is a business narce owned and operated by the appellant. We opted not to take this issue further, bearing in mind that the questions surrounding the identity of the offeree were not raised at anyone point either here or in the court below by the respondent. Mr. Kaunda's view was that this letter, coupled with the appellant's accepta...ce, constituted an agreeoent sufficient to be a subject of an order for specific performance. The respondent, on the other hand, argued that the letter in the form it was structured was only a tentative agreement subject to the terms and conditions in a contract of sale :hat was eventually to be drafted. On examination, the letter of offer clearly states in paragraph 5 that the offer was to be "subject to the terms and conditions drafted in the contract of sale." The contract of sale envisaged in paragraph 5 of the letter of offer was never drafted and signed by the parties. J17 The ques:ion is whether the contract of sale constituted in the letter of offer, is enforceable in these circumstances. The learned authors of Halsbury's Laws of England 4th edition, do shed some light on the position of the law on this issue. In paragraph 265 they write that: "Sale of land 'subject to contract.' In contracts for the sale of an interest in land, it is the almost invariable practice for the parties to strike a bargain but to make it clear that they do not intend to enter into a binding contract until a formal agreement has been drawn up by their solicitors. Such an intention is commonly indicated by the parties expressly making their agreement 'subject to contract.' A similar construction has also been put upon the followingexpressions: 'subject to the preparation and approval of a formal contract;' 'we are instructed to accept and have asked solicitor to prepare contract'; 'subject to a proper contract to be prepared by the vendor's solicitor'; subject to a suitable agreement being arranged between your solicitor and mine'; subject to the terms of the lease'; 'subject to formal contract to be prepared by the vendors' solicitor if the vendor's shall so require'; or where a formal contract is required by an advertisement for a tender. Furthermore, it is also clear that the parties may impliedly make agreement 'subject to contract'. J18 Where an agreement is made in the above mentioned circumstances, even a signed offer, prima facie, cannot be accepted so as to conclude a binding contract, the reason being that the offeror clearly does not intend to be bound at this stage." At the hearing of the appecl, we brought this passage to the attention of Mr. Kaunda in the hope that the learned counsel would rethink the arguments he was advancing before us, bearing in mind paragraph 5 of the letter of offer of the property :n question. Mr. Kaunda, howeve::-,plowed on with indomitable faith in the hope that he woulo::persuade us not to accept as the correct statement of the law and, therefore, applicable to the present case, the passage from Halsbury's Laws of England, as we have quoted it above. Undeterred by our exertions, the learned counsel pursued his argument from the stan:! point that the offer letter of 3rd December, 2010 became an enforceable contract of sale of the subject property upon the appellant's acceptance, and the respondent should not now resile from that contract but should be ordered to proceed to draw up the cO:1trac:of sale and carry the conveyance through to completion. J19 As the learned authors of Halsbury's Laws of England state in the passage we have referred to above, in contracts for the sale of land such as the one before us, it is not un-.lsual for the parties to express tentative or preliminary agreement to be 'subject to contract.' This affords the parties to seek legal or other advice before entering a binding ccntract. The expression 'subject to contract' and similar expressions such as those mentioned in the passage we referred to in Halsbury's Laws of England, have received judicial recognition as a safe formular for avoiding legal obligations when one of the parties to the contract was still intent on consulting or rethinking the sale. The learned authors of Chitty on Contracts (General Principles), Vol 1, 13th ediLon state as follows in paragraph 2-110(3): "There is, thirdly, some difficulty, in applying the offer and acceptance analysis to transactions such as sales of land where parties agree 'subject to contract,' so that they are not bound until formal contracts are exchanged. Strictly, an 'offer' subject to contract does not satisfy the legal definition of an offer, since the person making such an 'offer' has no intention to be bound immediately on its acceptance. However, the agreement is generally made by the usual J20 process; the reason why the parties to it are not bound until they exchange formal contracts is that the terms of the agreement negative, until then, the intention to enter into legal relations. Alternatively, a party could be regarded as making an offer when he submits a signed contract for exchange and this would be accepted when the exchange took place. " There is a consistent line of judicial dicta from comparable jurisdictions in England on this issue. In Winn v Bullm,there was an agreement for a lease of a hcuse for a specified period 'subject to the preparation and approval of a formal contract.' On these facts, it was Leld that there was :10 enforceable contract. Jessel MR remarke,::. at page 32 as follows: "it comes therefore to this, that where you have a proposal or agreement made in writing expressed to be subject to a formal contract being prepared, it means what it says; it is subject to and is dependent upon a formal contract being prepared." In Chillingworth v. Eschel61, the parties agreed on the sale of certain property 'subject to a proper contract to be prepared by the vendor's solicitors.' Sargant W, held that there was no contract between the parties. Equally, in Eccles v. Bryant PollockiS), the parties agreed on the sale of certain property 'subject to con:ract.' When the contract • J21 was dravm up and counterparts prepared by each party, the purchase:- signed his counterpart and posted it to the vendor, but the latter did nct sign his counterpart. The Court of Appeal held that there was no contract betweec the parties. And yet, we are not unmindful of be fact bat a tentative agreement which is not binding, may well be very different from a provisional agreement which may be binding. In Branca v. Cobarro(9), it was held that the wording of the agreement in that particular case showed that the parties intended it to be binding agreement, and therefore, that it would remain in force until its prov~sionswere embodied in a formally drawn up document. In that case, the parties had signed an agreement under which the buyer was to buy the seller's m'.lshrcom farm. The agreement ended with the word 'This is a provisional agreement until a fully legalized agreement drawn up by a solicitcr embodying all the conditions herewith stated is signed.' The natural question we have to ask here is whether, what the appellant and the respondent conduded was a tentative agreement J22 subject to another agreement or a provisional one which was capable J: being 2arried into execution. Looking at the wording of the letter, more especially paragraph 5 therefore, we are of the firm view that this was clearly a tentative agreement which was conditional. As the learned High Court judge correctly observed, the conditions to be set out in the contract of sale yet to be drawn up remained unkno\\. TI. We do not ~nthis vein, accept Mr. Kaunda's submission :hat all the relevant terms of the contract were contained in the letter of offer. That letter of offer simply sketched out in broad strokes the general points of agreement. It did not state, for example, the date of completion; when the purchase price was to be paid; how such purchase price was to be paid - whether at once or in agreed instalments; when vacant possession would be deemed to have been given to the purchaser for purposes of certain liabilities, etc. All these matters and possibly others, were no doubt to be covered in the contract of sale that was to be drawn out and signed by the parties. Until, and • J23 unless that was done, the agreement between the parties remained, in our considered view, conditi:mal and tentative. As regards grou::1d two, it is alleged that smce tile learned judge agreed that the letter of offer Vias quite detailed, he should not have granted vacant possession to the respondent. Mr. Kaunda, as we indicated already offered no legal arguments to support this ground either in his Vlritten or oral submissions. The submissions made on behalf of the respondent however referred us to the originating notice of motion and supporting affidavit in addition to pointing to section 13(1)la) and (e) of the Rent Act, c~1.apter206 of the laws of Zambia. Section 13 of the Rent Act imposes restrictions on a landlord's right to possessioc of rented premises. It provides that: (1) "No order for the recovery of possession of any premises or the ejectment of a tenant therefrom shall be made unless - (a) Some rent lawfully due from the tenant has not been paid.,or some other obligations of the tenancy (whether under a contract of tenancy or under this Act) so far as the same is consistent with the J24 provisions of this Act, has been broken or not performed." It is abundantly clear that this section sets out precondition for ejectment of a tenant from any lease premises. Under 13(1)(e),an order for possession or ejectment may be given where the premises is reasonably required by the landlord for occupat~on as a residence for himself or for his employee. A perusal of the affidavit in support of the originating notice of motion taken out by the respondent in the lower court, shows that the basis of the application for ejectment of the appellant from the subject property, was that he was in brea:::hof the obligation to pay rent. There is no suggestion whatsoeve:- in the affidavit that the respondent, as landlord, requ:.red the premises for its own occupation or that of its employee. As is evident from the originating notice of motion, the applicat:.on in the lower court was made solely u:1der section 13(1)(e) of the Rent Act. We agree, therefcre, with Mr. Kaunda that redolent of hindsight, the respondent submitted as an afterthought that it sought ejectment of the ap:;>ellantfrom the premises to accommodate its own employee. • J25 We also agree thc.t the submission is remirjscent of the loathsome practice (II" counsel attempting to adduce evidence from the bar, and it is deprecated. By the appellant's own admission as the Ruling of the lower court will show at R2, the appellant was indeed in breach of the obligation to pay rent, which had accumulated to the order of K18,OOO,C'C'O. OC as at the time of commencement by the respondent of the action in t~e lower cou:-t. Those arrears were eventually settled. It is in those circumstar:ces that, we understand the learned cO'.lnsel for the appellant's submission that the order for vacant possession of the premises sh.:mld not have been made. Our unders:anding of section 13: 1)(e)of the Rent Act which we have already quoted and referred to is that a breach of the tenancy agreement m regard to payment of rent entitles the lessor to obtain an order for ejectment of the tenant. We have also examined clause 4 of the tenancy agreement at page 20 of the record of appeal. It states as follows: • • • J26 (bl "if the rent hereby reserved or any part thereof shall remain unpaid for fifteen days after becoming payable (whether formally demanded or not) or if any of the covenants on the Tenant's part hereinbefore contained shall not be performed or observed...then in any case, it shall be lawful for the Landlord at any time hereinafter to re-enter upon the said house or any part thereof in the name of the whole and thereupon this demise shall absolutely determine ..." It is beY0::ldargument that a breach of the tenancy agreement in the present case occurred. The respondent was entitled to invoke section 13( l)(a) of :he Rent Act, as well as clause 4(b) of the tenancy agreement. A combined reading of the two provisions leave us in no doubt that the order of possession was properly given by the High Court. Purging a breach of a tena.""1.cyobli3ation by settling rent arrears does not obliterate the breach. Ground two is bound to fail. Under ground three, the appellant alleged error on the part of the judge in awarding costs to the respondent. We have repeatedly stated that the award of costs should normally be guided ty the principle that costs follow the event, the effect being that be party who calls for:h the event by instituting suit, ; J27 will bear the costs if the suit fails; but if this party shows legitimate occasion by successful suit, then the defendant or respondent will bear the costs. This position of the law was clearly articulated in Y. B. and F. Transport v. Supersonic Motors Limited(lOI and in Mutale v. Zambia Consolidated Copper Mines Limitedllli As the successful party in the court below the respondent was entitled to its :::osts. Ground three is without merit and it is dismiss=-d. For the foregoing reasons we believe all the grounds of appeal are bereft or merit. The appeal is dismissed ir- its entirety with costs to the respondent to be taxed in default of agreement. C-, CQ \ H. Chibom':>a SUPREME COURT JUDGE t~ . E. N. C. Muyovwe SUPREME COURT JUDGE . Malila, SC SUPREME COURT JUDGE