Mjumi James Banda v ZDA Henan Gouji Development Company Limited (2024/HP/A046) (23 July 2025) – ZambiaLII

l IN THE HIGH COURT OF ZAMBIA AH TO T L HD EE N P RA IT N L C U I PS A KA LA R E G I S T R Y Jl ( C vi J li u r i s d i c t i o n ) 2024/HP/A046 PR1N1c1PAL 2 3 JUL 2025 BETWEEN: MJUMI JAMES BANDA APPELLANT AND ZDA HENAN GOUJI DEVELOPMENT COMPANY LIMITED RESPONDENT BEFORE HON MRS JUSTICE S. KAUNDA NEWA THIS 23rd DAY OF JULY, For the Appellant Mr Peter Zulu, Mesdames M. Wamunyima Legal Practitioners For the Respondent Mr J. Phiri, Messrs Joseph Chinva Advocates JUDGMENT CASES REFERRED TO: 1. Wetherell v Jones 1832 110 ER 82 2. Printing and Numerical Company v Sampson 1875 LR19 Eq 462 3. Kennedy v Glass 1890 17 R 1085 4. Cope v Rowlands 1836 150 ER 707 5. Way v Latilla 1937 3 ALL ER 759 6. Bigos v Boustead 1951 1 ALL ER 210 7. Sithole v The State Lotteries Board 1975 ZR 106 8. Holman v Johnson 1975 1 Cowp 341 9. Christopher Lubasi Mundia v Sentor Motors Limited 1982 ZR 66 1 O. Mutwale v Professional Services Limited SCZ No 13 of 1984 11. Colgate Palmolive Zambia Inc v Abel Shemu Chuka & 110 others Appeal No 11 of 2005 12. Peter Militis v Wilson Kafuko Chiwela 2009 ZR 41 13. Esquire Roses Limited v ZEGA Limited SCZ Judgment No 3 of 2013 14. Zambia State Insurance Pension Trust v Zambia Extracts Oils and Colourants Limited and another 2013/HPC/295 15. Hiteshbhai Patel v Agyen-Frempong Kofi and Agyen-Frempong Osei SCZ Appeal 13/2017 ... J2 l 6 . A . R u B i c t h i d h o v a rie r s d tyt F HA o . p p o d Ce ha Z al a mNm o a b li a & o fL 2 1 3 2 0 1 t d a n o d t h o e t r h s e r v s N v a CAA t i o n a l l P e n s i o n S c h e m e ort and Ex ort L i m i t e d A p p e a l N o 0 4 / 2 0 1 8 mp 'P 1 9 .L .a Ai Mn t l a m i m'd t o n t e d e mt h i c Sb e Be l e a rs ae A kc t n d p e ry e d t p e L Ju h e a l i P N mdo o i t g m s t e de N o n ef vt w Z a m N o 6 s p ap 0 2 1 b1e i a o r s E f 2 L i l 0m e c i t 8t e ri d c i (i ty n l S i q u u p i p d l a y t i C o o n rp ) v o Mb r a t o i o o z n i LEGISLATION REFERRED TO: 1. The Subordinate Court Act Chapter 28 of the Laws of Zambia 2. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia OTHER WORKS REFERRED TO: 1. Chitty on Contracts Volume l General Principles 2. Chitty on Contracts Volume 2, Specific Contracts, 27th Edition, Sweet & Maxwell, 1999 3. The Law of Agency 6th Edition, by G.H.L Fridman, 1999 1. INTRODUCTION 1.1 This is an appeal against the Judgment of the Subordinate Court of the First Class sitting at Lusaka, which was delivered on 21st May, 2019, and which Court held that the agreement that the parties had entered into was illegal and I unenforceable, and further that the payment of Three Thousand Five Kwacha (K3, 500.00) per Certificate of Title was also unenforceable. 2. PROCEEDINGS BEFORE THE SUBORDINATE COURT 2.1 Before the Court below, the Appellant herein, Mjumi James Banda as Plaintiff, commenced the matter by Default Writ of Summons which was accompanied by an affidavit on 5th October, 2018. 2.2 He claimed: 3.2 3 J ZDA yb dewo yenom gnieb 00.004 ,33K fo tnemyPa .i imuMj ot detimiL nyapmoC tnempoleveD ·l·JOU G n aneH eb ot sgnirnae no tseretni osla dna adnaB semaJ .dessessa tirW tlufaeD eht fo troppus ni delfi saw hcihw tivadfifa eht nI naneH ADZ taht derreva adnaB semaJ imuMj ,snommuS fo sih detseuqer detimiL ynapmoC tnempoleveD iujoG suoirav rfo eltiT fo setacfiitreC gnissecorp ni ecnatsissa ijuoG naneH ADZ taht gnidnatsrednu eht no ,sremotsuc semaJ imujM yap dluow detimiL ynapmoC tnempoleveD .dessecorp eh taht eltiT fo etacfiitreC hcae rfo adnaB -, ..... •,··,.r ":''~ d s t d e n , e d a y f n a r fo g n i y l p p a d e v l o v n i s s e c o r p e h t t a h t d e s o p e d e H g n i n i a t b o a l l e w s a , n g i s s A o t t n e s n o C ,s l l i b t n e r d n u o r g s e r e v l i S n i s e i t r e p o r p r fo x a T r fe s n a r T ty r e p o r P r fo g n i y l p p a . s n e d r a G a h e h t a h t d e t a t s a d n a B s e m a J i m u Mj , g n i r r e v a n i r e h t r u F ( h t y b d e s s e s s a e r e w t a h t s e i t r e p o r p ) 0 1 n e T f o l a t o t a o i t a r e n u m e r d e e r g a n a t a , ) A R Z ( ty i r o h t u A e u n e v e R a i b m a Z l K ( a h c a w K y t f i F d n a d e r d n u H n e v e S d n a s u o h T e n O f o ) 0 0 . 0 5 7 v i F d n a s u o h T n e e t n e v e S g n i l a t o t , y t r e p o r p r e p . ) 0 0 . 0 0 5 , 7 l K ( a h c a w K d e r d n u H n a r fo d e i l p p a a d n a B s e m a J i m u j M t a h t d e s o p e d o s l a s a w t t a s e i t r e p o r p ) 0 1 ( n e T r fo n g i s s A o t t n e s n o C d e n i a t b t f i F d n a d e r d n u H e e r h T d n a s u o h T e n O f o n o i t a r e n u m e o t s o c l a t o t a e v a g h c i h w , h c a e ) 0 0 . 0 5 3 , l K ( a h c a w . ) 0 0 . 0 0 5 , 3 1 K ( a h c a w K d e r d n u H e v i F d n a s u o h T n e e t r i h I o r K T 5 . 2 .2 6 . - J4 2.7 H C r p H t K e o e m r o u o w s t a t n s e n u n e p e r t n d r e b e a c h a e t r y d p d t h a t h e o t o A s s i g n a t i o n o f E , b r i n g i n g t K w a c h a (K a i d w a s T (K 3 3 , 4 0 0 . 0 b t a i fo r i g h t h e t 2 , 4 h i r t 0 ) . n a o y e d f u H u t a l 0 . 0 - T h G r o r t h e n d r p a y 0 ) . r e e u r e a T n d b h T d T l e u h h K s o R e n t r ( e 3 e w a c h t o T w , t h e u s a n d B a i l n l s p r o ) p e (K 8 0 a T h o u o s a m t o t a l F o u r p a d fo i d r a t t i e s p e 0 . 0 0 ) F o u a n d d u o u n t H u n d r e r a r r e d 2.8 Mjumi James Banda deposed that despite reminders, ZDA Henan Gouji Development Company Limited had neglected or refused to pay him, and he exhibited as 'MJB 1' a copy of the letter of demand that his lawyers wrote to ZDA Henan Gouji Development Company Limited. 2. 9 His averment, was that in response, as evidenced by the letter which was exhibited as 'MJB2', ZDA Henan Gouji Development Company Limited accepted to only pay him Six Thousand Five Hundred Kwacha (K6, 500.00). THE OPPOSITION 2.10 The gist of the opposition, as advanced by Cath Mwenda, ryn the Deputy Managing Director of ZDA Henan Gouji Development Company Limited, who deposed to the affidavit in opposition, was that in 2017, ZDA Henan Gouji Development Company Limited engaged Mjumi James Banda as its' agent, to assist it to process Certificates of Title for houses which were· situated in Silverest Gardens Estate in Chongwe. 2.11 As to the terms of agreement between the parties, Cathryn Mwenda's averment was that for every conveyance that JS Mjumi J arnes Band d · d . a 1 ' up to the stage of obtaining a Certificate of T1 t l £ e o r a h o m e o w n e r ' h e w o u l d b e p a i d T h r e e Thousand Fiv H d e u n r e d K w a c h a ( K 3 , 5 0 0 . 0 0 ) , a d d i n g t h a t the agreement was oral. 2 . 1 2 C a m a S e ( K fo t h r y n a g p t e m 7 , 0 r th n e d b 0 0 e p M w t o e r , . 0 0 a y m e ) n o fo e d b r n a d t a i n 7 , a o b t w a e n t a s p T d i n e o s e w o h e i n x h d w g i b t h a t M ( 2 ) C e r a s p a i d t h e s a m i t e d a s j u m t ifi c a S e v e . T 'C M l i J t e s e n h e ' . a T c m o h o p e f o u y s T s o B a n i t l e a n d f t h e d o K a n w i n o n l y t h 6 2 c h a a v o i c e 2.13 It was denied that there was an agreement between the parties under which remuneration would be paid for assessing properties, obtaining State Consent to Assign or obtaining Ground Rent Bills. 2.14 Cathryn Mwenda averred that ZDA Henan Gouji Development Company Limited only agreed to pay Mjumi James Banda Three Thousand Five Hundred Kwacha {K3, 500.00) when he had completed the whole process, and had obtained the Certificates of Title for the specific properties in the Housing Estate. 2.15 Thus,'it was denied that Mjumi James Banda was entitled to be paid as alleged. 2.16 In still deposing, Cathryn Mwenda stated that the services for Mjumi James Banda were terminated as he did not perform according to the agreement, and he was not owed any money by ZDA Henan Gouji Development Company Limited at the time of the said termination. - �.I r/ 'l'I 1e11v,:1111rn11 WIii! I, 11 111, 1111 ti,;(,'ll /' l 'lllrl IIH: 11:111;1• wllif:)1 w:ll oxliihilod 1111 'M , I H 2 ' , 1/, J ) I\ 1 1 , • t l ' I ( 1 ,. '\ ' . , l l i ( i l l J l l ) f; v , ; Ju p r r ) ( t; J I ompnny ' Llrnll·,'·d 1101, ,1 I I f , 1 o 110 1. 1 It I IH ; 1 r ir 1 1,f 1 ;r w r ii c ; d J l y w i l l i Mi , wni ,Jnmc•ri 13,111 I I I , , < n , n n , I ii r i w n 1 1 n f 'te r M j ,rn 1 i ,J : 1 1 m m n u n c f o hnd connrmcd 11 1 1 1 i n • 1 r , o n .Y o l > 1.n 1 r w c l 'l 'w o ( ?. ) C 1 ; r l i f i c � l c o o f Till , . ?. , 1 8 A c c o r d i n g l y '7 J ) A I I C l .. . . , ,_, cmin ou,11 Dcvolnprncml Comp:Jny L i m i t e d p r o p o n c d t o p a y M j u m i ,J a rn e 11 B a n d a H i x ·1 •h , l u : 1a n d fi'ivc I Jund red KwAcha (K6, 500.00) for the work Lhat he had done, and il did nol agree lo be 'indchtcd to Mjumi ,Jame::; BAndn. 2.19 lt war-t alno depoAed that Mjumi JamcA Banda had come up with fictitious figureR which were never agreed bclwecn hirnRelf and ZDA Henan Gouji Devclopmc•n l Company Limited. EVIDENCE LED IN THE COURT BELOW 2.20 During trial, Mjumi James Banda led evidence that ZDA Hcnan Oouji Development Company Limited constructed homcA that it Rold. His testimony was that on 10th June, 20 l. 7, he had received an email from ZDA Hcnan Gouji Development Company Limited, in which it requested him to obtain a Certificate of Title for a buyer. 2.21 Mjumi James Banda stated that it was agreed that upon delivery of every Certificate of Title, he would be paid Three Thousand Five Hundred Kwacha (K3, 500.00), and that he Wlc\S sent a list which had Eighty (80) properlies. I 2.22 2 . 2 3 J7 The testimony that was alsogiven, was that they started with the fii rst batch of Ten { 10) . p r o p e r t i e s , a n d M j u m i J a m e s Banda obtained Two (2) Certificates of Title. However, Mjumi Ja 8 m e s a n d a e n c o u n t e r e d c h a l l e n g e s a l o n g the way ' and so f h . m e O t e p r o p e r t i e s w e r e o n l y p r o c e s s e d u p to different stag H' t h a t t h e r e w e e s .. 1 s t e s t i m o n y w a s t h a t h e h a d t o e n s u r e . re no caveats on the properties, check on the ground rent that was payable, and where there were bills to h a v e t h e m a s s e s s e d . 2.24 It was also Mjumi James Banda's evidence, that he found that the properties had been sold some time back, and the Zambia Revenue Authority had requested for the latest valuation reports. He added that the Zambia Revenue Authority gave a bill at Five (5) percent of the value. Mjumi James Banda further testified that after payment was made, tax clearance certificates would be issued. 2.25 On other testimony that he gave, it was that one had to pay One (1) percent of the value, plus One Hundred and Sixty­ Six Kwacha (K166.00), and that Consent to Assign the property, would be applied for. 2.26 In respect of that, Mjumi James Banda testified that a copy of a national registration card, the Certificate of Title and the receipts for payment for Consent to Assign were required. He explained that at the Zambia Revenue Authority, more documents had to be submitted, and he did not know exactly how long it took before a Certificate of Title was issued. J8 2.27 With regard to how many . h . 2 . 2 8 C e r t p r o c a s s e ( 1 0 ) H i s h e p h e w i fi c a t e s o f T i t l e fo r , Mj u m e s s e d T h i r t e e n ( 1 3 ) p s s m e n t b y t h e Z a m b i a R o f t h e m h a d C o n s e n t t o e v i d e n c e w a s fu r t h e r t h a a i d G r o u n d R e n t a n d C o n o r k e d o n T w e n t y - S i x ( 2 6 p i J a m r o p e r t e v e n u A s s i g n t fo r T s e n t t ) p r o p r o p e r e s B i e s u e A u t o b t a h r e e o A s s e s e r t i t i e s a n d s a p t o h o r i t y , i n o e n d o ( 3 f ) t h i g n fe e s . e t a t e t h e a n d t h p e a d , p r o t d l e t h e m r o p d i n c h v a . e g e s s e d a h t e e o l f T e t n r t i e s , t h a t 2.29 Then thereafter, Mjumi James Banda received a phone call from ZDA Henan Gouji Development Company Limited who informed him that they no longer needed his services with respect to the Thirteen (13) properties. 2.30 He stated that One (1) stage had remained before Certificates of Title could be issued for Ten (1 0) of the properties, and for the last Three (3) properties, the process was almost Fifty (50) percent complete. 2.31 In concluding his testimony, Mjumi James Banda testified that he had not received payment for the Twenty-Six (26) properties, and he therefore claimed payment in the sum of Thirty-Three Thousand Four Hundred Kwacha (K33, 400.00). 2.32 Mjumi James Banda when cross examined, stated that he was sent an email by Jean over the work, and that he held two meetings with her at her office in Chongew . He agreed that no written contract was signed, stating that the parties had a verbal agreement. ... --, J9 2.33 Mjumi James Banda further agreed that he was to be paid upon delivery, and that he delivered Two (2) Certificates of Title, as well as that he was paid for the work that he did on the two. It was also his evidence, that one paid the fees. Mjumi James Banda acknowledged that he had not adduced any evidence to show that he was entitled to payment. 2.34 On the part of ZDA Henan Gouji Development Company ( Limited, its' witness Mwakoyi Sichimbo a Property Consultant and Operations Executive testified that she handled Certificates of Title at ZDA Henan Gouji Development Company Limited. Her evidence was that Mjumi James Banda worked with a Supervisor at ZDA Henan Gouji Development Company Limited in obtaining Certificates of Title at the Ministry of Lands, and that she had found him working there. 2.35 Mwakoyi Sichimbo also told the Court below, that when the Supervisor left, she was assigned to deliver documents to Mjumi James Banda, and that they had worked hand in hand. In that respect, she had explained that she would prepare the schedule, and give it to Mjumi James Banda. 2.36 This witness also testified that the agreement was that upon Mjumi James Banda completing the change of ownership for a property, he would be paid Three Thousand Five Hundred Kwacha (K3, 500.00). Mwakoyi Sichimbo also confirmed that Mjumi James Banda processed Two (2) Certificates of Title, and her testimony was that he did not obtain Certificates of Title for Thirteen (13) properties. · 3 7 T h e n t h e r e a f t e r J l O . . ' ZDA Henan Gouji Development Company L 1 m 1 t e d w i t h d r ·t , . ew I s services from Mjumi James Banda, and M w a k o · s · h . for the properties within Two (2} weeks. However, he did the Mjumi James Banda promised to obtain Certificates of Title the Ministry of Lands for lodgment. Her evidence was that at the Zambia Revenue Authority, documents were taken to 2.41 This witness also told the Court below, that after the stage . Zambia Revenue Authority notices, and they reached the stage of assessment at the they included the ones for which he obtained demand was given documents for Twenty-Six (26) properties, then 2.40 She stated that if Mjumi James Banda had testified that he at the Zambia Revenue Authority. Banda managed to obtain ground rent bills and assessment 2.39 It was Mwakoyi Sichimbo's evidence that Mjumi James . James Banda whose title were assigned to be changed, were given to Mjumi transaction, but that she was not sure how many properties that Thirteen (1 3) properties were involved in the 2.38 When cross examined, Mwakoyi Sichimbos testimony was ' 500.00). would be paid Three Thousand Five Hundred Kwacha (K3, and payments, and when change of ownership was done, he stated th at MJ. Um1 James Banda would be given documents the Thirteen (13) properties from Mjumi James Banda. She Development Comp any L1 . m1. ted wi. thdrew the documents for YI Ic imbo testified that ZDA He nan G OUJ.I. IL I I Jll ) 2 · 42 W T M M p 1. o r J t w . e l r u e s a k m s k t u o i o p . r y a J b e i . r am e t fr i S o a o 1 . b e l m c l s t y h a , i t 1 B • m h n a a e e b n n d o c d d 1 fr i· a e w c o n Ia h o m t b n , a · t a t fi t a h n e r i e d d n e e m M M d in a 'i j n u i t n i h . m r s e e e t i d ry - e J a x w a s o a s m a f m e s L e s i a s s n t m n o B a r d t e a i s n o n C . n t d e , r a t t t 1 . p h h fi r e a c o r t a m e t e a i w s s ft e a e o d s r f that the Cert'1 fii cates of Title would be ready in Two (2) weeks, I but that did not happen . 3. DECISION OF THE COURT BELOW 3.1 In the Judgment that was delivered on 21st May, 2019, the Court below found that it was not in dispute that Mjumi James Banda and ZDA Henan Gouji Development Company Limited entered into a verbal agreement, in which Mjumi James Banda was to assist ZDA Henan Gouji Development Company Limited to obtain Certificates of Title for properties in Silverest Gardens in Chongwe. 3.2 It was also found that Mjumi James Banda was to be paid the sum of Three Thousand Five Hundred Kwacha (K3, 500.00) for each Certificate of Title that he obtained. 3.3 Further finding was made, that Mjumi James Banda obtained Two (2) Certificates of Title, and that he was paid Seven Thousand Kwacha (K7, 000.00). The Court below still in its' findings, stated that Mjumi James Banda had started the process of obtaining Certificates of Title for the remaining properties, and that ZDA Henan Gouji Development Company Limited, terminated the agreement that it ha , d with Mjumi James Banda, and that thereafter, James Mjumi Banda was not paid any money. Jl2 3.4 The Court below went on to consider the validity of the agreement ' and r fi d 3.5 e e r r e t o S e c t i o n 9 0 o f t h e La n d s a n d Deeds Registry A t c C h a p t e r l 8 5 o f t h e La w s o f Z a m b i a , and the decision · th m e c a s e o f M u t w a l e v Profe s s i o n a l Services Limited (lOJ. It was the Cou t' fi d" J w a a m s e n s o B t a a n n d a a d r h v a o s d c a m s t t e a o m t e f g d t , h t t h e h a H a t t t h i g h h e e w C r a o e c o s a u r t r d fr a , s a n h m d o e a w r . s e d T s h u t h e c r h a e , t fo h M r e j e u , w m h a i e s not qualified to do the job that he agreed to do for ZDA Henan 3 . 6 G o u j i D e v e l o p m e n t C o m p a n y L i m i t e d . - Accordingly, by virtue of Section 90 of the Lands and Deeds Registry Act, what Mjumi James Banda had done was illegal. 3.7 The Court below, held that the Courts have nothing to do with illegal transactions, and it found that the agreement between the parties was illegal, including the payment of Three Thousand Five Hundred Kwacha (K3, 500.00), and it was consequently unenforceable. 3.8 Thus, the Court below held that Mjumi James Banda was not entitled to any payment, and the matter was dismissed with each party to bear their own costs. 4. GROUNDS OF APPEAL 4.1 Dissatisfied with the Judgment, Mjumi James Banda filed a Notice of Appeal, in which the following grounds of appeal were advanced: i. The Court below e"ed in law and in fact when it held that the agreement between the parties including the • Jl3 I Ill l l . p p Th a r y o e m c e C e s o n s u e t d r t of w e rr K a e s d , u i n n e l nf a . 0 o w r c a p e n e a d r c e b l e . i n r t i fi c a t e o f t i t l e t h a t w a s fact when it failed to take i b n e t o t w e a e c n c o t u h n e t P l a t h i n a t t if f a n a g e n c y r e l a t io n s h ip e xi. s t e d and the Defendant. 4 . 2 Mj u m i J a m e s B a n d a fi l e d h e a d s o f a r g u m e n t o n 1 0 th October, 2024, while ZDA Hen� Gouji Development Company Limited filed its' head of argument in response on 5 . S U B s t M N I o S v S e I m O b N e S r , A T 0 2 T H . E H E A R I N G SUBMISSIONS BY COUNSEL FOR MJUMI JAMES BANDA 5.1 Counsel for Mjumi James Banda stated that they relied on the heads of argument which were filed on 10 October, th 2024 in their entirety. RESPONSE BY COUNSEL FOR ZDA HENAN GOUJI DEVELOPMENT COMPANY LIMITED 5.2 In response, Counsel submitted that they also relied on the heads of argument which were filed on 1st November, 2024. REPLY BY COUNSEL FOR MJUMI JAMES BANDA 5.3 There was no reply. 6. DECISION BY THIS COURT 6.1 I have considered the appeal. GROUND ONE 6.2 T l a p h w a i r g s a n t i e r o d s , u n i n i n d fa c o c l u f t , d i a w n p h g p e e n t al h a i t e l h p l e e a g l d y e m s t h e t h a n a t t t t h o t e f h e a T g h C r o e e r e u m e r t e T b n h e t o l o b u w e s t w a e n r e d r e e n d F i t h i v n e e Jl4 6.3 K p I a n w r r o g a c a u c e d e h s v d a s a e n t d h ( K 3 , , w a c i n g a t t h s t e S u h i q n s u . 0 e n g r e s fo o t ) r u i o c n n p e d e a fo r b o r C l e f d e . a e r t p p t e i fi e r m c a a l , i n t e M a t o j u i o f m n T i w i t J a l e a s m w t h e s h a e t B a t h e w n r a d o s a r ' n o t , t h e C o u r t b e l o w w a s i n o r d e r w h e n i t fr a m e d i t s ' o w n ' i p s s a u r t e i e fo s r i n d e t t h e e r i m r p i n l e a a t i d o i n n , g o s . t h e r t h a n w h a t w a s p l e a d e d b y t h e - ! 6 • 4 In that regard, reference was made to page 66 of the Record of Appeal, in the last paragraph, stating that the Court in its' Judgment stated the following: "In the present case, the Plaintiff stated that he is a farmer. This clearly indicates to me that he is not an advocate of the High Court, and as such, he was not qualified to do the Job he agreed to do for the defendant. Going by Section 90 of the Lands and Deeds Registry Act, what the Plaintiff was doing was illegal. Courts have nothing to do with illegal transactions. I therefore find that the purported agreement between the parties, including the payment of K3, 500.00 per Certificate of Title is unenforceable." 6.5 Argument was made, that as noted from the affidavit verifying the debt, which was at page 7 of the Record of Appeal, as well as the affidavit in opposition, which was at page 13 of the said Record of Appeal, none of the parties had pleaded the issue of whether or not Mjumi James Banda was J15 6 6 . . 7 6 w I o t i I . H q t s h t w u h s e a W w n a a u n t a a l t a e i t s v fi s n h t o h o e f e f u r G s e d 1 C t i r t o p · a i l t t o o l uj o h e t a u n e g e r d i r d , t a r o t i . D l e a a i. f t t e s t r n r h y h gu a v h d a e e m o t a l J e f 0 d e d o d t P d t e h b h b rn t t i. i. e r e h s t t e o r h s a n m c u ' a w t o 0 t g t i. a n n w n h C h s o t e t n o r e n d a m fo fr i e · a c s o r t g p t s o h w · r a u d f e e n T n e e t- e h h t y e d s fo e e d u a r L t r s m p i. 1. o d m u , d a i d p e t n r 1. i h . t t o t o s a e i e . e n e s t d o r i u s m n o . c e b o n h i. , b y n n a . e t d a c h e t o t h n r a i . n o a e l t t n f i i r o s o h a e n o f i ry d n g Z w h t i D h t a e t s A o e s r ' Courts ' with the case of Atlantic Bakery Limited v Zambia Electricity s U pp 1Y Corporation Limited flBJ being relied on, stating that the Court in that matter held that: "Put differently, a Court should confine its decision to the questions raised in the pleadings. It can thus not grant relief which is not claimed. Litigation is for the parties; not the Court. The Court has no business extending or expanding the boundaries of litigation beyond the scope defined by i.e parties in their pleadings. In other words, a Court has no jurisdiction to set up a different or new case for the parties." 6.8 Reliance was further placed on the case of Richard H. Chama & 213 others v National Pension Scheme Authority fl6J where the Supreme Court stated that: "As there was no disagreement whatsoever as to the kind of occupational pension scheme subsisting between the parties, the learned judge had no business creating issue over the undisputed ■ 9.6 l J n e h t d n a s t c a f suht eW .ti evloser ot gnideecorp a e l e h t h t i w e e r g a tsnalleapp eht rof lesnuoc dern l d e rn a e l e h t t a h t dehcaerrevo egdju truoc -rewo detcidratnoc hcihw gnidnfi a gnikam ni lfesmih ,,.noitisop deerga nwo 'seitrap eht · · · t h t a w t n e m gu r a e h T on saw ereht ,rettam siht m ylrallm1s a s imujM ,ton ro rehtehw no ,seitrap eht neewteb tnemeergasid no did eh taht boj eht od ot defiilauq saw adnaB semaJ detimiL ynapmoC tnempoleveD ijuoG naneH ADZ fo flaheb .elbaecrfonenu ro lagelli saw tcartnoc eht ,ton ro rehtehw ro on saw ereht taht deugra osla adnaB semaJ imuMj 01.6 ijuoG naneH ADZ taht seitrap eht neewteb tnemeergasid semaJ imujM degagne dah detimiL ynapmoC tnempoleveD taht rehtruf saw tnemugra ehT .secivres ti edivorp ot adnaB ADZ taht yenom fo tnuoma eht saw ,noitnetnoc ni saw tahw imujM dewo detimiL ynapmoC tnempoleveD ijuoG naneH .adnaB semaJ ,woleb truoC eht taht dednetnoc saw ti ,erfoerehT 11.6 detcidartnoc taht gnidnfi a gnikam ni ,flesti dehcaerrevo eht taht detats rehtruf saw tI .dedaelp dah seitrap eht tahw eht fo smret eht ot ycacffie evig ot saw ,truoC eht fo elor .seitrap eht dnuob hcihw ,tcartnoc eht taht deugra saw ti ,laeppa fo dnuorg tsrfi eht no llitS 21.6 tnemeerga eht rehtehw saw noitanimreted rfo eussi dnoces ijuoG naneH ADZ dna adnaB semaJ imujM neewteb .elbaecrfonenu saw detimiL ynapmoC tnempoleveD --- J17 6.13 The submission was tha . . . t m p a r a g r a p h 3 o f t h e a f fi d a v i t m opposition, it had b d e e n e p o s e d t h a t M j u m i J a m e s B a n d a was engaged b ZDA Y H e n a n G o uj i D e v e l o p m e n t C o m p a n y Limited as 6 - 1 • 1 5 C C T C s R e h h o o e r t i fi c o n g w e r e fo m p an v o l u l i a n c a r n e t e e y t e s . , L a r w a o i t w i m i l y a s n f T a s i t e a n p l a a g e n t t o 1 t 1 e · " i o r h c l e a r t h a t d h a d c a p a d w i l l i n g l y c e d o n t h e a o Z c w s s u s D i t y i t h d e i s t w e s 1 n. A H e t o c M j u c i s i o n i t a n o n m t h S n t i h t h 1 v e r ·1 G o r a c t J a m w a t e e s uj a , e s a p r t D i n d B m s o G e a c a v t n a e r e h d d s d l a a e n g s i s e n p m o i t t . i n e d t o f m n t i d h e case of Printing & Numerical Registering Company v Sampson t2 J which decision was approved in the case of Colgate Palmolive Zambia Inc v Abel Shemu Chuka & fllJ. 110 others 6. 16 That decision was that: ''if there is one thing more than another which public policy requires, it is that men offu ll age and competent understanding shall have the utmost liberty in contracting, and their contract when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice." 6.17 Also cited as authority in that regard, was the case of Peter Militis v Wilson Kafu.ko Chiwela f12J. 6.18 In response, ZDA Henan Gouji Development Company Limited referred to Chitty on Contracts at page 1 stating that it sets out what amounts to a valid contract, as: ., Jl8 6 . 1 9 e I . t 1 e w m a e s e w " n A nf a t h l s s i· p o c o m r h r c o a e u a m r s g r a i t e u s n b e e e d e d n o , f i o a r n t r, h n c a e a e x t a d i s S i g e t o t r t e i r e s n e r oif c e f m u e c e r o p a t n g r h n t n o e d m is r g i w h e s . s d a a e z.n v c s b e g r y o w t s n l o a a h . s w n b i e c e c h . t " t f , o u t t h l h l o e y a b t s l l a i s a g w p t a i e t s i c fi o w i . e n fi i d c l s l in � rder for a contract to be valid being: t. Offer and acceptance; ii. Consideration,• iii. Intention to create legal relations. 6-20 The argument was that, as could be seen from the record of proceedings, it was agreed that ZDA Henan Gouji Development Company Limited agreed to pay Mjumi James Banda the sum of Three Thousand Five Hundred Kwacha (K3, 500.00) for each property, where a Certificate of Title was successfully proces.sed, after the agreement was entered into. 6.21 Therefore, there was an offer, acceptance, and valid consideration passed between the parties, as well as the intention to be bound by the agreement. 6.22 However, the contract had to abide by the law, and as it was illegal, it was unenforceable. In that regard, Chitty on Contracts Volume 1 General Principles at page 839 was relied on, as stating that: "Illegality may affect a contract in a number of ways, but it is traditional to distinguish between (1) illegality as to formation and (2) illegality as to performance. Broadly speaking, the first refers to ■ 6 - 2 3 G Z J b i L l o i n D A a m e l o l e g a n J l 9 a s i t u a t i o n w h e r e t h e c o n i t i s f o r m e d , w h e r e a s t h e w h i c h o n i t s ' f a c e i s l e g a i n a m a n n e r w h i c h i s i l l e g b y t h e a b o v e , i t w a s a r g u e H e n a n G o u j i D e v e l o p m e n t C e s B a n d a w a s i l l e g al fr o m t h e w w a s o n fi r m g r o u n d , i n d e c a l a n d u n e n fo r c e a b l e , p u r s u d s a n d D e e d s R e g i s t ry A c t t r a c t i s i l l e g a l l a t t e r i n v o l v e s l , b u t w h i c h i s g a l . " d t h a t c t o h n e t r o m L p i m a n i t y e d o T n h s e e r t e . fo r c l a r i n g t h a t t h e a n t t o S e c t i o n o 1 8 5 C h a p t e r a t t h t i e m e c o a a n c t t r rm p e e r d f o e b n e t w c t e a Mj i u m a n d C o u r t t h e e , w a s o n t r a c t t h e o f 9 0 La w s f t h e , of Zambia. 6.24 It was further argued that Mjumi James Banda was contracted to perform illegal acts, and in pursuance of that illegal agreement, it would be noted from pages 23-24 of the Record of Appeal, that Mjumi James Banda's obligations under the contract, included obtaining State consent to assign, processing assessments at the Zambia Revenue Authority for Property Transfer Tax, and ensuring the payment of fees to assign the properties at the Ministry of Lands, as well as ultimately acquiring duly processed Certificates of Title. 6.25 It was argued that these steps that Mjumi James Banda took under the contract, in exchange for payment, were contrary to Section 90 of the Lands and Deeds Registry Act, which states that only a Barrister or a Solicitor can perform such acts on behalf of a party, in exchange for any monetary payment or other benefit. J20 6.26 The argument was th t . . . a ' i t i s t h e p o s i t i o n o f t h e l a w , t h a t n o Court Will lend its' aid t • 0 a m a n w h o fo u n d s h i s c a u s e o f action upon an immoral or 1· 11e gal act. 6.27 Cited as authorit t Y O s u p p o r t t h a t p o s i t i o n , w a s t h e c a s e o f Holman v Johnso (BJ " T h e p r i n c ip n l e a t p a g e 3 4 3 a s h a v i n g s t a t e d t h a t : of public policy is this; ex dolo malo n m i m o a n m n o o ri w r a t h u l o m o r f a o i c u l l t n e i g o d a n s . N h l a o i s c t C . o c a I f, u r u f t s r e o w m i l l of t h l e a e n c P d t i l o a i t n i n s ' u t i a p f f' i d o s n t o o a w a n n stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and the defendant were to change sides, and the defendant was to bring the action against the plaintiff, the latter would have the advantage of it; for where both are equally in fault, potior est conditio deferentis." 6.28 In still arguing, it was stated that the decision in the case of Holman v Johnson f8J was applied in the case of Zambia State Insurance Pension Trust v Zambia Extracts Oils and Colourants Limited and another f14J. 6.29 The argument was that Section 90 of the Lands and Deeds Registry proscribes persons who are not Barristers or J21 S o l i c i t o r s f ' rom providing c o n v e y a n c i n g s e r v i c e s a n d conveyancing processes on b h C m o a n ki s e n q g u e o n f t l y c , o n t t h r a a t c t s A c fo t r c o t n h t e e m e p p r a l f l a t e o v 1·s o s 1·o f n a n a d n f o t p h r e o r h i b p i e s t r s o t n h . e o conveyancing . 5 . 3 0 s S T c e rv i c o l i c i h e c i t e d e t o a i n s s u n r s . e o t h e d f c e W a r s t h e t h e o e A e r f Z c e a t , l l m b v b y J i a p o e n S r e t s o s a t n ( l e s J I w w n h a s s u o r a r e a r l n e i e c n d e o o P t n e B , n a w s r i r h o i s i c n e t h T r ru s w o a s r s t v Zambia Extracts Oils and Colourants Limited and another (14J. 6.31 It was stated that the said case held that: "Where a contract which the plaintiff seeks to enforce is expressly or by implication forbidden by the statute or common law, no Court will lend its' assistance to give it effect. .... but where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract in the performance of something to be done on his part." 6.32 Therefore, the argument was that the above case demonstrated that performance of one's obligations under a contract ought to be within the confines of the law, and that where such obligations required one to do an illegal act, such contract would be illegal and unenforceable. J22 6 .33 As regards the contentio . . • n by MJ u m i J a m e s B a n d a t h a t t h e Court below erred • 1 m a w b y fr a m i n g i t s ' o w n i s s u e fo r determination th h . ' 0 e r t a n w h a t h a d b e e n p l e a d e d b y t h e parties, reliance w I d a s P a c e o n t h e c a s e o f M' m e m b e a n d the Post Newsn L a n d o t h e r s fl 9 rJ a ·t p b e rs · i m i t e d ( i n l i q u i d a t i o n ) v Mb o o z i , I emg argued that the Supreme Court m t h a t m "i a t t t e i r s h a e l n d t a h g a e t: o l d a n d w e l l - e s t a b l i s h e d p r i n c i p l e that every Court has power to act ex debito justice [as of right) to ensure that it exits for real and s u b s t a n t i a l a d m i n i s t ra t i o n o f ju s t i c e . " - 6.34 Accordingly, it was stated that the Court has an overriding duty to exert justice, as opposed to confining itself to trivial matters, that would lead to outcome that possessed no legal basis. Therefore, it was contended that Mjumi James Banda's argument that the Court below erred in framing an issue for determination which had not been pleaded, was likely to perverse the course of justice. 6.35 Thus, the position that was taken was that, the Court below was at all times, entitled to pay regard to such, even though it was not pleaded by the parties, as doing so, would ultimately lead to the fair administration of justice. 6.36 Ground one revolves around whether the Court below erred in law and in fact, when it framed the question for determination with reference to Section 90 of the Lands and asking whether Mjumi James and Deeds Registry Act a Banda could leglly perform what he was contracted to do, I J23 by ZDA Henan Gouii D l . � e v e o p m e n t C o m p a n y L i m i t e d , i n l i n e with that provision f th 1 6 . 3 7 c u I C w h n t h a a d i s r s l l e n e r t t r i t i s t o h e l g h e p d e d e u t h h e t h t n a r a h e d t p L t : l e e r a r u b g c t a o i a e s n l s i e i t y o t r a c t a r e M u n a f Mj . b o d i w u a , w u m n d v S h i b e e J y n n a p t n m l e o r o n e s a d M e B i n o o g t f a s o t h e n d a . I n L r s p a t o t h i m r e i t p t h i e s r fo e c a s e 9 e d f a m r o i J d f t "The function of pleadings is very well known, it is to give/air notice of the case which has to be met and to define the issues on which the court will to have to adjudicate in order determine the matters in dispute between the parties. Once the pleadings have been closed, the parties thereto are bound by their pleadings and the Court has to take them as such." 6.38 The decision in the case of Atlantic Bakery Limited v Zambia Electricity Supply Corporation Limited f18Jwhich was relied on by Mjumi James Banda, was that the Court has no business deciding a matter beyond the scope of the pleadings that are filed by a party. 6.39 It is however also trite, that proceedings before the Subordinate Court are summary, and as such Order VI Rule 1 of the Subordinate Court Rules, Chapter 28 of the Laws of Zambia provides that: "1. Except where otherwise by law provided, every suit shall be commenced by writ of summons issued by the clerk of the court. -• · t a h t s e t a t s s e l u R d i a u s s 2 4 h e o " J t t " 'J i r o W l ) ry { 3 e v e E l u ) 1 R ( , r . 3 e " h t r Fu 0 1 4 4 . 6 . 6 eno hcus ni eb llahs snomm 'J r. d e b i r c s e r p e h t f o ro eludehcS tsriF eht ni srm.oJ eht ot elbacilppa eb yam sa tce r.JrJ.e e kil eht ot srmof yam secnatsmucric sa snoitairav hcus htiw esac . e r i u q e r si taht nees eb rehtrfu llwi tI seluR dias eht fo )lf 4 eluR :noisivorp ni swollfo sa r r o t b e d a f o t c e p s e r n i s i m i a l c e h t n e h W ) 1 ( . 4 " t l u a f e d a e l fi y a m f f i t n i a l p e h t , d n a m e d d e t a d i u q i l t ri w m r o f a r o , rm fo d e b i r c s e r p e h t n i s n o m m u s f o f o e h t o t g n i l fi e k i l e h t f o e m i t e h t t a d n a , t c e f f e n a e l fi l l a h s s n o m m u s f o t ri w t l u a f e d h c u s t i v a d fi f a d n a d n a m e d r o t b e d h c u s g n i fy i r e v f o e s o rp u p e h t r o f , l l a h s t i v a d fi f a h c u s n o p u e r e h t s y a w l l a n i d e t a e r t e b , t n a d n e f e d e h t n o p u e c i v r e s " . s n o m m u s f o t i r w t l u a f e d h c u s f o t r a p s a vm s e l u R d i a s e h t f o 1 e l u R r e d r O : t a h t s e t a t s d e n i rm e t e d d n a d r a e h e b y l i r a n i d r o l l a h s t i u S . 1 " , t u b ; s g n i d a e l p t u o h t i w r e n n a m ry a m m u s a n i d e d r o c e r s n o s a e r r o {f t r u o c e h t o t s r a e p p a t i e r e h w s e c n a t s m u c r i c d n a e r u t a n e h t t a h t ) s e t u n i m e h t n i f o s t s e r e t n i e h t n i t n e i d e p ex t i r e d n e r e s a c y n a f o iff t n i a l p e h t r e d r o y a m t r u o c e h t , o s o d o t j e c i t s u y a m d n a , m i a l c s i h f o t n e m e t a t s n e t t i r w a e l ft. o t e s i w e k i l n e t t i r w a e l ft. o t t n a d n e f e d e h t r e d r o t n e m e t a t s a f o g n i l fi e Th . e c n e f e d s i h f o t n e m e t a t s n e h T 4 . 6 J25 of . claim shall not necessitate, unless the court so directs, that t a s a t e rn e n t o f d e f e n c e s h a l l a l s o b e filed. The order b m a y e m a d e a t a n y s ta g e o f a s u i t either before or at the hearing." 6 4 . 6 . 4 4 I n t h S u m a f fi d o u t T h e Z D A t h a i s m a t h C t m o n v i t e p o u H e t h e a s i n o r n y t t w s t a e o i b n e r h p t i e n t h , e c o m m e n c e m e n t w a s b y D e fa u l t i c h w a s a c c o m p an i e d b a a y f fi n p o s i t i o n w a s fi l e d . T h u s , t d h o o c s u e o n s o f t h e p a r t i e s i m n a t h t t i e s r . l o w f o u n d t h a t b B o t J h a M m j e u s m i G o u j i D L e v i m e l i o t p m e n t C o m p a n y t e r e d a s i a n l t l e o g e a d n a g r e e m e n t o f W o r f i t d a A v n i t . s m e t e n t s a n a d n d a a g r e e d e d M j u m i b y James Banda. This was supported by the averments that were made in both the affidavit which was filed in support of the Default Writ and the affidavit in opposition. 6.45 What was disputed was the terms of agreement, with regard to Mjumi James Banda's payment under the agreement. 6.46 From the agreement, indeed there was an offer which was made by ZDA Henan Gouji Development Company Limited to Mjumi James Banda to assist it to process Certificates of Title for properties which are situated in Silverest Gardens in Chongwe, which Mjuimi James Banda accepted. 6.47 The evidence that was led in the Court below, was further that there was agreement that was made, that Mjumi James Banda would be paid for the work that he would do under the agreement. Thus, there was consideration and intention to create legal relations. J26 6 .48 w Fr a o s m a t v h a is li , d t h co e n C t o ra u c r t t o b n e 1 t o h w e fo fa u c n e d o f th it a . t it was clear, that there 6.49 Based on this, MJ·um 1 . J ames Band a argued that the contract should ha ve b een enforced bY the Court below, as it met all the legal requirements. 6.50 However ' ZDA Hen an G OUJ . 1 . Development Company Limited argued that the contract was illegal in line with Section 90 of the Lands and Deeds Registry Act Chapter 85 of the Laws of Zambia. 6.51 That Section provides that: "90. Any person who, not being a barrister or solicitor, transacts any business under this Act/or and on behalf of any other person/or fee or reward shall be guilty of an offence and liable to a.fine not exceeding one thousand five hundred penalty units: Provided that nothing contained in this section shall apply to a Government officer acting in the performance of his duties as such." 6.52 The above provision of the law is very clear. It proscribes any person, other than a Barrister or a Solicitor from transacting any business under the Act on behalf of another person. Phrased differently, the provision allows persons to transact business under the Act for their own benefit, and not on behalf of another person, if they are not a Barrister or a Solicitor. l J27 6 . 5 3 T h e r e c o r d o f t h e C ourt below ' show s that Mjumi James Banda did not stat e, th at he 1 . s a B t h a t h arnSter or a Solicitor or e was so, at the ti h me of the transaction. The record s ows that he indicated to the Court below' that he was a farmer' when he was all d . c e u p o n t o g . i v e h .i s p a r t i c u l a r s a t tnal, as seen at page 23 of the Record of Appeal. 6 . 5 . 6 6 5 5 . 5 6 . 5 6 . 5 I t i s a l s o v e r y 1 c e a r f r o m t h e r e c o r d , t h a t M j u m i J a B m a e n s d a a g r e e d t o p r o c e s s C e r t i fi c a t e s o f T i t l e b H o o e f e Z n h n a D a l f n A G o uj i D e v a g r e e m e n t e l o p m e n t T h a t C o m p a n y L i m i t e d . e n t a i l e d t h a t h e w o u l d t r an s a c t b u s i n e s s u n d e r t h e L a n d s a n d D e e d s R e g i s t r y A c t , w h o s e p r o c e d u r e fo r o b t a i n i n g C e r t i fi c a t e s o f T i t l e i s s p e l t o u t u n d e r t h e s a i d A c t . Mj u m i J a m e s B a n d a a r g u e d t h a t t h e C o u r t b e l o w c o n s i d e r e d t h e p r o v i s i o n s o f l a w i n 9 0 o f t h e La n d s a n d D e e d s S e c t i o n w h e n n o n e o f t h e p a r t i e s h a d p l e a d e d i l l e g a l i t y R e g i s t ry A c t o f t h e c o n t r a c t . I n d e e d , t h e C o u r t b e l o w d i d c o n s i d e r t h a t p o s i t i o n o f t h e l a w w h e n i t a r r i v e d a s i t s ' d e c i s i o n . T h u s , t h e q u e s t i o n i s w h e t h e r t h e C o u r t b e l o w e r r e d i n d o i n g s o . 7 I h a v e s t a t e d t h e e ff e c t o f 9 0 S e c t i o n o f t h e L a n d s a n d a s p r o s c r i b i n g p e r s o n s w h o a r e n o t D e e d s R e g i s t ry A c t B a r r i s t e r s o r S o l i c i t o r s , fr o m t r a n s a c t i n g a n y b u s i n e s s u n d e r t h e A c t fo r a n d o n b e h a l f o f a n y o t h e r p e r s o n fo r a f e e o r r e w a r d . a g r e e i n g t o o b t a i n C e r t i fi c a t e s o f b y T i t l e o n b e h a l f o f T h u s , 8 Z D A H e n a n G o u j i D e v e l o p m e n t C o m p a n y L i m i t e d w h e n M j u m i J a m e s B a n d a i s n o t a S o l i c i t o r o r a B a r r i s t e r , h e J28 contravened the law in Section 90 of the Lands and Deeds 6 . 5 9 R Z t I C i e s g D A H e h c n s u r o l o u t ry e a a r n s n a A c a n e s c e n t s t G o P . f e L o n i uj H s m i o i o i t D l n e m e d v a T e n ru a l o n p s d m v t e n J v a n t o Z o C h a t n m h o s e m o b r p n i a a n f Ex y B J, L t i Z r m a a c i t m ts e d b r i a O e l i ls i e S d t a a o n n t e d f14J and Wetherell v J i l o l e n g e a s l c f l o J n w t h r a o c s t e s . e ff e c t w a s t h a t t h e C o u r t s w i l l n o t e n fo r c e 6.60 They further argued that an agreement may be illegal in its' formation or illegal as to performance. 6.61 A contract will be illegal if it contravenes legislation or the common law. 6.62 Halsbury's Laws of England, 4th Edition Re-Issue, Vol 9 in paragraph 386 states that: "There are several classes of contracts which though perfect as to form, agreement and consideration are not given full effect because they offend of the law. Some contracts may be illegal in the sense that they involve the commission of a legal wrong, whether by statute or the common law, or because they offend against fundamental principles of order or morality. Less objectionable contracts may simply be void by common law or statute." 6.63 The facts of this matter, reveal that Mjumi James Banda and ZDA Henan Gouji Development Company Limited agreed for Mjumi James Banda to do illegal acts, as he was not q D D B u a l i e d e e e v a r r e d fi s l o p i s t e R m r t o e e o g n r p e i s t a r t C S fo ry o o r m m l i c A p i a t a c o n t n r J y y . 2 9 t r o n L i a m n s b i t a e e c h d t a , i o l f a n t s o a u f f n e Z e d e D , r A a t s h H h e e e L n w a a n n a d s s G n a o o t n u d ji a 6.64 In the case of Bigos v Boustead f6J, the facts of that case were that in 194 7, the defendant was anxious to send his wife and daughter abroad for the sake of the daughter's health. 6.65 Owing to the restrictions on English currency which were then in force, he was unable to obtain from the Treasury what he considered an adequate allowance to enable them to stay abroad sufficiently long for the visit to be of benefit to the daughter. On 25 August 1947, he entered into an agreement with the plaintiff, in contravention of the Exchange Control Act, 1947, s 1(1), whereby the plaintiff agreed to make available £ 150 worth of Italian money for the wife and daughter in Italy within a week, and the defendant promised to repay her with English money in England. 6.66 As security for his promise, the defendant deposited with the n plaintiff a share certificate for 140 shares in a compay. On 28 August the defendant's wife and daughter went to Italy, but the plaintiff failed to make any Italian money available for them, and on 13 October they returned to England, sooner than they would have returned if they had had the money. 6.67 The defendant then asked the plaintiff to return to him his share certificate, but she refused to do so. J30 6 8 I n a n a c t i o n b y t h e p l · t ' f f 6. a i n 1 t o r e c o v e r t h e s u m o f £ 1 5 0 fr o m the defendant on the ground th t h 6 . 6 9 o h i m t t h ru e r e t u rn T h e p t h e h h i s c f t h a e f a o f t l a i n t e a r i n o u n t e t c h i ff g r s t e c u m s o f c e a b o f t l a i m , t h e d t h e t r r t i fi c a t a n d o n h e a c t , a n d e f a n e . e d i o n c o e n d s a c h e , b n t e a n t t i o n r c l a u t t n d e a d e n , a n i m h e d d t h s i d a e a e h e d t h c o u t t h e f e n d t , a l t a d m l e o a n t e r c c o m p a n t h o u g a d e a l o a n a , n s d e l a i m fo e d m e e n c e m r o c e e d e d c o n t h e h n t o o u t t t h r e o f n t w i t h t r a c t was an illegal one, as it was still executory, he was allowed a locus poenitentiae, and, therefore, he was entitled to claim t h e r e t u r n o f t h e c e r t i fi c a t e . 6.70 It was held in that matter that: "The reason that the illegal transaction was not carried out was due, not to any repentance on the part of the defendant, but to the frustration of the contract by the plaintiff, and, therefore, as the agreement relating to the deposit of the share certificate was one which sprang from the main illegal agreement and was tainted with the same illegality as that which attached to that agreement, and as the parties were in pari delicto at the time of making the agreement, the defendant was not entitled to seek the aid of the court to recover the certificate." 6.71 Then in the case of Cope v Rowlands f4J, an Act made it illegal for stockbrokers to deal without a licence. Cope set up business in London without obtaining a licence. As a result, J31 6 . 7 2 w f a t h T c H F e h e i l e h e o m i t r e n d c e e m h T . o n a b s s h p e s u e h i s w t r a c t o e v t o i l l e b h a i o n g d o R w a s o n i l l e g a i l l u s t r g a l c o P a t e O s e i l a n d · t h e l a n d a t e s n t r a c l v A Z S C fo b a u t h t s g l S f r s n e . y J p a i s e n p T h e n y m e n t h a t h fo r c e a o s i t i o n e S u p - F r e m t fo i s b l e o r e m p o r w l a c k . f t h C e n g o r o e o K k f u o d o a l C o u r t i fi n i c r n a t e h , e e n c e w h t s c t h e A n d a g c m l a i m a d e i e t n o f s e y e n ­ stated that parties to a contract s i h l l o e g u a l d l c b o e u r p s r e e s o u f m p r e o d c e t e o d c i n o g n s t e w m h p e l n a t t e r a a n s l e a g c a t l i n r g a . t h e r t h a n a n , 6.73 Therefore, the decisions that I have just referred to, and the decisions that were relied on ZDA Henan Gouji Development Company Limited clearly establish, that the Courts will not enforce illegal agreements. 6.74 Accordingly, while Mjumi James Banda and ZDA Henan Gouji Development Company Limited entered into an agreement under which Mjumi James Banda agreed to process Certificates of Title for ZDA Henan Gouji Development Company Limited in exchange for payment, that agreement contravened Section 90 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia. 6.75 It was therefore illegal, as correctly found by the Court below, as Mjumi James Banda was not a Solicitor or Barrister at the time. 6.76 He therefore could not carry out any transactions under the Act on behalf of ZDA Henan Gouji Development Company Limited. J32 6 7. . 7 8 I n v e r p I n a c s u p e c n i d e s o s f u p h e o s f o t i p r n e t h a o i , n w o d i n g l S i t h g t Mj h i c t h o l e t h u h a t v i m w T s fi i a n h fi J s d e n a t h i n S d m a g t i g n , e s B t h e , I a m a t e L t a w o h n a t e d s a t C o u a g a a arm f l i v e t e r i e s v o r t e w e t h B o b e i t r . e a r l h d d o e w r c f 7J e g i s w l o o a r d i o n h i k c e t i n h d o w h t h a a t i s e s that: "Where an appellate court is in as good a position as a trial court to draw inferences it is at liberty to substitute its own opinion for any opinion which the trial court might have expressed." 6.79 The record of the Court below supported the finding that it made, as I have earlier stated, going by page 23 of the Record of Appeal, which shows that Mjumi James Banda told the Court below that his occupation was a farmer. Accordingly, Ground One of appeal fails, and it is dismissed. GROUND TWO 6.80 This ground of appeal alleges that the Court below, erred in law and in fca t, when it failed to take into account that an agency relationship existed between Mjumi James Banda n and ZDA Henan Gouji Development Compay Limited. 6.81 The argument was that the issue for determination on this ground of appeal, is whether there was an agency relationship between Mjumi James Banda and ZDA Henan Gouji Development Company Limited. 6.82 It was stated that as seen from the arguments in relation to the first ground of appeal, ZDA Henan Gouji Development Company Limited, engaged Mjumi James Banda as its' agent J33 to assist with the processing of Certificates of Title for various properties in Silverest Gardens in Chongwe. 83 The case of Bidvest Food Zambia Limited and 4 others v 6. CAA Import & Export Limited (17Jwas relied on, as having defined an agent as: "An agent is understood to be someone who acts on behalf of another in bringing about or performing a contractual obligation on that other's behalf." 6.84 Chitty on Contracts Volume 2, Specific Contracts, 27th Edition, Sweet & Maxwell, 1999 at page 2 in paragraph 31-001 was also relied on, as regards the definition of an agent, which states that: "At common law, the word agency can be said to represent as body of general rules which one person, the agent, has power to change the legal relations of another, the principaL The full paradigm relationship of principal and agent arises where one party, the principal consents that another, the agent, shall act on his behalf and the agent consents so to act. The consent is said to confer authority on the agent and from this authority stems the power." 6.85 It was repeated that ZDA Henan Gouji Development Company Limited engaged Mjumi James Banda to assist with the processing of Certificates of Title for various properties in Silverest Gardens in Chongwe, adding that Mjumi James Banda consented. J34 The argument was that teh consent that Mjumi James _g6 Banda gave, conferred him with authority to perform that job that ZDA Henan Gouji Development Company Limited requested him to do. Thus, there was an agency relationship between ZDA Henan Gouji Development Company Limited and Mjumi James Banda. 6.87 In still arguing, it was stated that the second issue for i determnation on this ground, was whether or not, Mjumi Jaem s Banda was entitled to be paid the sum of Thirty-Three Thousand Four Hundred Kwacha (K33, 400.00) for the services that he rendered. 6.88 Mjumi James Banda's argument was that ZDA Henan Gouji n Development Compay Limited terminated the agreement i wth him, after he had done some work on behalf of ZDA n Henan Gouji Development Compay Limited. It was stated that Mjumi James Banda contended that ZDA Henan Gouji Development Company Limited did not pay him for the services that he rendered despite numerous reminders. 6.89 He argued that under the law of agency, an agent has to be remunerated for the work that they do on behalf of the principal. Reliance in support of that argument, was placed on the case 6.90 of Esquire Roses Limited v ZEGA Limited (l3J, stating that o the holding in that case was as fllows: " r a I e t i l a g e s t n a i o t l n i s s o s h e t i n ri p t t e ( a i t l l a s e d w i t to t h w r a a e t s m i n i n u n a e n t h r a a e t g c io e u n n rr fo t a e r n n d t t h p c e r i n a s e s e c i p ), t r v i c a h e l e s l J35 6 . 9 . 9 2 M j t h o c fo T r t u e m r h e o r e d n ri n p a m i J a g e n p l e t e t h e w e c a s e l i e d o n b e p a e c m c y d o r s a i d r e d t t h o e p r i n c i p a l . T h i i p l e o f t h e l a w o f a g e n c y . " e s a B n d a 's c o n t e n t i o n w a s t h a r e l a t i o n s h i p w a s t e r m i n a t e d t h e i r t a s k s , t h e a g e n t w a s s t i l l k t . h a t t h e y h a d d o n e o f a n d K e n n e d y v G l a s s Way f4J s au t h o r i t y , t h a t M j u m B i J a m e s o n a q u a n t u m m b a e s r i u s . i t s t i b e n v a n i n e t i L d s a t h e fo r e t l e d a ti w a e t l l a s c a v e n a n b o a f S e n r d a i n a t t t h a g e n t p a i e d w e r e J t i t l e d l 6.93 ZDA Henan Gouji Development Company Limited in responding to this ground of appeal, relied on the definition of agency in Chitty on Contracts Volume 2 Specific which is: Contracts at page 1 "At comm.on law, the word agency represents a body of general rules under which one person, the agent, has the power to change the legal relations of another, the principal." 6.94 The Law of Agency 6th Edition, by G.H.L Fridman, 1999 was further referred to, which defines agency as: "Agency is the re�tionship that exists between two persons when one called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to effect the principal's legal position in respect of strangers to the relationship by the making of contracts or the disposition of property." J36 6 9 5 I t w a s a r gu e d th a t fo r t h e r e t o b · e a n a g e n c y r e l a t i o n s h i p between two people, it entailed th t th h . 6 . 9 6 a d R i r t d h r i v e e d e i a l n F o o d L i m i t c Z e p fr e a d r t y a o m i n m b ( I 7J ' t o s i a w w h o h e p a r g L t d h e r e e s r i n u i a t h r i g c i p n g , n d e C h t s a n d o a l p a r t y . w a s p l a c o t h e r s v o u r t s t a t e a b l ' i g e d o CAA t h d a n a e r e t · i o t h I m t : n s e p a c o d w a r e s t t o r e e a e q u o w e o f B Ex n d a l l y d a i d v p b n e s o r e d t t "At the very elementary level, and agent is understood to be someone who acts on behalf of another in bringing about a contractual obligation on that other's behalf. Thus, in contracts for the sale of products, such as the one implicated in this appeal, the agent would have authority to enter into contracts of sale of products on behalf of the supplier. In other words, the contract of sale will be between the supplier and the customer with the agent merely acting as an intennediary and receiving remuneration by way of commission, typically a percentage of the price for his or her labour." 6.97 In this matter, by Mjumi James Banda acting on behalf of ZDA Henan Gouji Development Company Limited to process Certificates of Title in Silverest Gardens in Chongwe on its' behalf, he acted as its' agent. 6.98 The affidavit which was filed in support of the Default Writ of Summons in the Court below, and the affidavit in J37 L 6 . 9 9 o B p H s o i n p ti o , s h w a a o n u d l d e o w e v r , l h w h w i ch a s th w o r k o n b e h L i m i t e d a t a t h e t i m e . o w b e p a e v a t M a l f o f e e , t h a a i d u p h j u m f Z D a s t fo e i A h i t w r d o l d t h J a m H e n e w a a i n e e s an s s g n d B o a g r e e s u c h a e c i i o s a n d a G o u j i t a S o d n c D l t g e n b o u e v i c i t h a t c y w y t h e l d n o e l o p m o r o r M j u m o r k . C o u c a r t ry C e n t B a a J i a m e s w e r t o b l t h o a n t a n o y m p a r t r i s t e r 6. l 00 l have also found that the Court below did not err in finding that as the agreement between Mjumi James Banda and ZDA Henan Gouji Development Company Limited was illegal, it was unenforceable, and Mjumi James Banda could not claim under it. 6.101 This is because, Mjumi James Banda, as an agent for ZDA Henan Gouji Development Company Limited had no capacity to conduct transactions under Section 90 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, as he was not a Barrister or a Solicitor, and therefore, he was doing illegal acts. The net result is that ground two of the appeal also fails. It is accordingly dismissed. J38 . C O N C L U S I O N All the grounds of appeal having failed, they are dismissed. 7 .1 As the parties entered into an illegal contract, I uphold the decision of the Court below that each party would bear its' own costs. Leave to appeal is granted. DATED AT LUSAKA THE 23rd D A Y O F J U L Y , 2 0 2 5 S. KAUNDA NEWA HIGH COURT JUDG