Turner Construction Limited v Catherine Hovstad Van Aardt and Anor (2021/HPC/0130) (15 May 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021/.l;IPC / 0130 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 1 5 HAY 202♦ BETWEEN: TURNER CONSTRUCTION LIMITED PLAINTIFF AND CATHRINE HOVSTAD VAN AARDT DEFENDANT NIGEL GEORGE SEABROOK THIRD PARTY Before the Honourable Mr Justice K. Chenda on 15th May 2024 For the Plaintiff : Mr L. Phiri, Mr J. Tembo & Mr K. Nkunta of August Hill & Associates For the Defendc,nt : Mr I. Morelli & Mr. M. Chanda of Musa Dhudia & Company For the Third Party : Mrs B. Chanda & Mr M. Mbulo of Moira Mukuka Legal Practitioners JUDGMENT Pdmary legislation referred to: 1. The High Court Act, Cap. 27 of the Laws of Zambia Rules of Court: 1. The Rules of the Supreme Court of England, 1965 contained in the White Book, 1999 Edition at p.277 of Vol. l 2. The High Court Rules, created under Cap. 27 of the Laws of Zambia Case law: l. Zambia Radiological t,.;;,d J;,,.u.gi/1,g Cc,;-;.;:;~,;:;.~· J.,i;,.it.;d c. ... d 5 O;-:;_ -:,· Development Bank of Zambia -Appeal No. 28/2016 at J27 2. Ccwmont Capital Holdings Plc. v Lewis Nathan Advocates - SCZ Judgment No. 6 of 2016 at p. J35-36 3. Galaunia Farms Limited v National Milling Company Limited (2004) ZR 1 at page 9 4. Tiens Kahenya v AG (2013) ZR Vol. 2 at p285 5. Richwell Siamunene v Sialubalo Gift-Vol. 3 (2017) ZR 335 at 354 6. Afrope Zambia Limited vAnthony Chate & Ors- Appeal No. 160/2013 at p.Jl6 Authoritative texts: 1. Bryan A. Garner (2019) Black's Law Dictionary, 11th Edition, Dallas: Thomson Reuters, p.714 1 INTRODUCTION AND BACKGROUND 1.1 This matter centres around a joint venture agreement (the "JVA") for development of a leasehold property known as subdivision L of lot 2259 /M, Ibex Hill, Lusaka ("Palm Grove"). 1. 2 The Plaintiff alleges that it performed its part of the JVA whilst the Defendant has failed to act on its obligations thereunder. The Plaintiff accordingly sued by writ of summons and statement of claim on 16th March 2021 seeking: (i) a declaration that the joint venture agreement was binding on the Defendant; (ii) damages for breach of the JVA ; (iii) losses arising due to suspension of works USD92,683; (iv) works completed to date in the sum of USD167,070; (v) damages for loss of profit in the sum of USD367,500; (vi) interest; (vii) costs; and (viii) any other reliefs the court may deem fit. J2 1.3 The Defendant reacted with a defence filed on 30th March 2021 refuting the allegations and stating that she never concluded or executed any JVA with the Plaintiff. 1.4 The Defendant alleged that it was agreed verbally between the Plaintiff and the Third-Party that the Third Party will indemnify the Plaintiff the cost of the initial works done if the JVA failed. 1.5 The Third Party refuted the Defendant's claim stating that the said JVA did not contain any such undertaking for indemnification of any losses against the Defendant from the Plaintiff. The Third Party counter claimed: (i) a declaration that the JVA was binding on the Defendant; (ii) damages for breach of contract; (iii) an order that any claims by the Plaintiff arising from the Defendant's failure or refusal to continue to perform the JVA should be paid by the Defendant; (iv) damages for loss in valuation of Palm Grove in the sum of USD31,371; (v) damages for loss of rental income on the Third-Party's two individual properties on the palm grove in the sum of USD39,600 as at September 2021 and for every subsequent month until judgment; (vi) interest; (vii) costs; and (viii)any other relief the Court may deem fit. J3 1.6 All of these complaints and cross complaints were laid out in: (i) the Plaintiff's originating process filed on 16th March 2021 comprising a writ of summons and statement of claim; (ii) the Defendant's defence of 30th March 2021; (iii) Third Party notice of 19th May 2021; (iv) the Plaintiff's reply of 21th July 2021; (v) the amended Third-Party's defence and counterclaim of August 2023; and 8 th (vi) Defendant's amended reply and defence to amended Third Party's defence and counterclaim of 16th August 2023. 1. 7 After the said pleadings were on record and after an interlocutory appeal and an unprecedented number of interlocutory applications, the matter finally progressed as set out below. 2 COMMON GROUND AND ISSUES FROM PLEADINGS 2.1 It is common ground that the Plaintiff and the Third Party entered into a JVA for the development of Palm Grove. 2.2 It is also common ground that the Plaintiff has performed some works at Palm Grove. 2.3 However, there appears to be no consensus on the whether the Defendant was a part of the JVA . J4 2.4 There is also controversy on who was liable to pay the Plaintiff for works done at Palm Grove. The Defendant puts blame on the Third Party as she alleges that she was not part of the JVA and therefore it was agreed that the Third Party would indemnify the Plaintiff if the JVA failed. 2.5 The Third Party has cross-alleged that the JVA does not contain any indemnification clause and therefore the Defendant was liable to pay the Plaintiff. 2.6 After the close of pleadings, I convened a scheduling conference on 29th June 2021 and engaged Counsel in a Bar-Bench consultation. It yielded fruit in the form of the following core issues distilled for interrogation at trial and determination as per order for directions: i) is the joint venture agreement signed by the Plaintiff and Third Party binding on the Defendant; ii) who is liable for the Plaintiffs works at Palm G.rove in the event that the JVA failed/ was not fulfilled; iii) was the programme of works submitted by the Plaintiff on or about 15t.h October 2019 binding on Defendant and Third Party and if not, who is liable for works done and expenses incurred by Plaintiff at Palm Grove; iv) what is the value of works done and expenses incurred by Plaintiff at Palm Grove; JS v) is the Plaintiff entitled to damages for loss of profit and losses arising due to suspension of works; and vi) is the Defendant entitled to be indemnified by the Third Party for the Plaintiffs claims herein. 2. 7 Following conclusion of all preparatory steps, the matter was set down for trial. 3 SUMMARY OF EVIDENCE 3.1 Trial was held on 23rd January 2024, with the Plaintiff calling 2 witnesses while the Third Party called 1 witness: The Defendant did not appear or call any witnesses. 3.2 The Plaintiff's first witness was Philip Howard Turner, whose evidence in chief was embodied in a witness statement filed on 3rd September 2021 supported by the Plaintiff's bundle of documents filed on 3rd September 2021. 3.3 It was his evidence that he was a managing director in the Plaintiff company which was specialized in construction of residential housing developments for sale. 3.4 He stated that in early 2019, he was approached by the Defendant and Third Party who had intentions of developing Palm Grove into a grated residential housing development. J6 3. 5 Mr Turner testified that the Plaintiff was engaged in March 2019 by the Defendant and Third Party to carry out works at Palm Grove which included construction of a perimeter wall, electrical connection and drilling and installation of a borehole. A memorandum of understanding (the "MOU") was prepared to this effect which appears at p.2-4 of the Plaintiffs bundle. 3.6 He stated that it was the intention under the MOU that payments for the work done, would be incorporated into a further agreement for the planned housing development. 3.7 It was his testimony that even though the MOU was never signed, the Plaintiff with the consent of the Defendant and Third Party proceeded to perform its obligations under the MOU. 3.8 Mr Turner testified that the that during the period March 2019 to July 2019, the Plaintiff, Defendant and Third PRrty entered into discussions for the creation of a residential housing development at Palm Grove agreed to: (i) the site layout of 14 residential plots with a common areas comprising perimeter walls, road works, gates and gate house, utility building, water reticulation and sewerage; (ii) the sale value of each of the proposed subdivisions based on the total land value of USD360,000; and J7 (iii) sales and development strategy which email correspondence appears at p.5-18 of the Plaintiffs bundle. 3. 9 He stated that the Defendant and Third Party engaged Mesdames D. Findlay and Associates for the purpose of preparing a JVA which fee note appears at p.134 of the Plaintiffs bundle. 3.10 It was his testimony that D. Findlay and Associates sent a draft JVA to the Defendant and Third Party who after reviewing it, the Defendant sent the reviewed draft copy to the Plaintiff on 24th September 2019 which email correspondence appears at p.19 and 21 of the Plaintiffs bundle. 3.11 Mr Turner stated that to facilitate the registration of the common leasehold scheme as agreed in the JVA , the Defendant gave the certificate of title for Palm Grove to D. Findlay and Associates which was collected by the Plaintiff as evidenced by the email at p.27 of the Plaintiff's bundle. 3.12 He stated that the Defendant provided the Plaintiff with an application letter on 3rd October 2019 for the registration of a common leasehold scheme, which registration process was to be overseen by the Plaintiff pursuant to the JVA which letter appears at p.28 of the Plaintiffs bundle. JS 3.13 It was his testimony that the Plaintiff submitted to D. Findlay and Associates schedules including a programme of works for inclusion in the JVA which was sent to the Defendant and Third Party on 15th October 2019 as evidenced at p.33 of the Plaintiffs bundle. 3.14 Mr Turner stated that in January 2020, he signed on behalf of the Plaintiff on the final JVA which appears at p.38-75 of the Plaintiffs bundle. 3.15 He stated that pursuant to the JVA, the Plaintiff commenced works at Palm Grove on 1st November 2019 which copy of the programme of works appears at p.55 of the Plaintiffs bundle. 3.16 It was his testimony that updates on the progress of the works was given to the both Defendant and Third Party and the Defenda..-.,_t responded commending the Plaintiff for the progress made at Palm Grove. Email correspondence evidencing this appears at p.36-37 and 76-80. 3.17 Mr Turner stated that the registration of the common leasehold scheme in relation to palm grove property was completed by the Plaintiff in December 2019 and the Defendant collected the certificates of titles for individual units of the common leasehold scheme in January 2020. J9 3.18 He stated that on 23rd March 2020, the Defendant's advocates Mwenye and Mwitwa Advocates advised the Plaintiff that the Defendant would not proceed to sign the JVA on account of change of circumstance between her and the Third Party which email appears at p.82 of the Plaintiffs bundle. 3 .19 It was his testimony that the Defendant approached the Plaintiff with the view of entering into a separate JVA to the exclusion of the Third Party which email and JVA appears at p.84-101 of the Plaintiffs bundle. 3.20 Mr Turner stated that he rejected the offer as there was already an existing JVA between the parties to which the Defendant remained to fulfill her obligations as evidenced by the email at p. 103-106 of the Plaintiff's bundle. 3.21 He stated that as discussions between the Plaintiff and Defendant were ongoing, on 20th April 2020, the Plaintiff suspended works at Palm Grove. 3.22 It was his testimony that at the date of suspension of the works, the Plaintiff had fulfilled the works in clause 5 (b) (i)-(iv) and (vii viii) of the JVA . JlO 3.23 Mr Turner stated that on 30th April 2020, the Defendant's advocates rejected the Plaintiffs request to continue to perform the JVA and advised that all claims relating to Palm Grove be referred to the Third Party as evidenced by the email at p.102 of the Plaint iff's bundle. 3.24 He stated that whilst discussions were ongoing, the Plaintiff maintained security at site and head office as evidenced by the email appearing at p.107-110 of the Plaintiff's bundle. 3.25 It was his testimony that the Plaintiff wrote demand letters to the Defendant for specific performance of the JVA but the Defendant rejected the request as evidenced by letters ac p. 111-115 of the Plaintiff's bundle. 3.26 Mr Turner states that on 10th December 2020, the Plaintiff gave the Defendant notice to terminate which letter appears at p.116 of the Plaintiff's bundle. 3.27 He stated that following the termination of the JVA, the Plaintiff on 21st January 2021 wrote to the Defendant demanding the sum of USD627,253 which letter appears at p.117-132. 3.28 It was his testimony that the Defendant would not discuss the claims until the court case against the Third Party in cause no 2020/HP/0462 was concluded. Jll 3.29 Mr Turner stated that the dispute in cause 2020/HP/0462 is not relevant to the Plaintiffs claim against the Defendant and prays that the Court grants the reliefs sought against the Defendant. 3.30 Mr Turner was cross examined firstly by Mr Morelli from the Defendant during which he testified that he had been in the construction industry since 1976 and that typically a developer would agree on scope of works with a client before proceeding with construction. 3.31 He testified that he signed the JVA but the Defendant did not. It was his evidence that the JVA was given to him by the Defendant's lawyers and that the Defendant had been actively involved in its preparation. The JVA also had a programme of works. 3.32 Mr Turner testified that the Plaintiff began work on Palm Grove on 1st November 2019 and that the Plaintiff would give the Defendant regular updates but he does not recall the Plaintiff seeking further instructions from the Defendant. 3.33 He stated that works halted in April 2020 after the Defendant made it clear in March 2020 that she would not participate in the development and that she would not sign the JVA. J12 3.34 He stated that part of the Defendant's actions were suing the Third Party her former partner over Palm Grove in a way that was different from the arrangement under the JVA. 3.35 Mr Turner testified that before that the Defendant had communicated via email and whatsApp that she was happy with the construction but eventually came to his office saying she would not sign the JVA . 3.36 The Plaintiff thereafter ceased works and removed its workers from site. The titles to Palm Grove were in the Defendant's name and her action was needed to sign contracts of sale for the buyers found by the Plaintiff. 3.37 Mr Turner stated that the Third Party was Party to the JVA and signed it. 3.38 When cross examined by Mr Chanda also for the Defendant, Mr Turner confirmed that the JVA was the one at p.49 of the Plaintiffs bundle and that clause 11 stated that it would come into effect when executed. He reiterated that the Defendant did not execute the JVA . 3.39 Mr Turner testified that he did not know of any correspondence from the Defendant confirming that she was happy with the final draft of the JVA before it was printed for execution. J13 3.40 He stated that the Plaintiff began works before the JVA was executed and that execution was considered as a mere formality as the Plaintiff was eager to commence and finish the construction. 3.41 Mr Turner agreed that by email of 23rd March 2020 at p.82 of the Plaintiff's bundle, the Defendant communicated her wishes not to proceed with the JVA but the Plaintiff continued works on Palm Grove up to April 2020 and thereby continued to incur expenses. 3 .42 It was his evidence that the Plaintiff suspended works in April 2020 based on its own judgment and also considered the JVA as terminated in November 2020. 3.43 Mr Turner admitted that there was no bill of quantities prepared at the time the Plaintiff commenced works on site at Pa.Im Grove. 3.44 He also admitted that the first loss referred to in paragraph 42 of his witness statement only arose because the Plaintiff considered the agreement as suspended as opposed to terminated. 3.45 Mr Turner testified that there are no invoices and receipts on record to show how the Plaintiff arrived at the sum of USD92,683 in paragraph 42 (i) of the witness statement nor to show how the sum in 42(ii) was expended. Jl4 3.46 He admitted that the loss of profit figure of USD367,500 in paragraph 42(iii) of his witness statement was not supported by any audited financial statements from the Plaintiff. 3.47 Mr Turner testified that the expenses in paragraph 42 of his witness statement reflected those at p.11 7-132 of the Plaintiff's bundle. 3.48 It was Mr Turner's evidence that there are itemised site overhead costs in paragraph 1 (i)-iv) at p.121 of the Pln.intiff's bundle with a schedule attached but that there were no accompanying receipts. 3.49 He also admitted that the head office overhead expenses at p.126 of the Plaintiffs bundle were not supported by payslips and PAYE documents to prove. 3. 50 Mr Turner agreed that the Plaintiff prepared the tabulation of all expenses and costs claimed but did not bring supporting invoices, receipts and audited financial statements to Court. He admitted that nothing stopped the Plaintiff from doing so. 3.51 Under further cross examination, this time by Mrs Chanda for the Third Party, Mr Turner testified that if offered another forum to prove the monetary claims in the writ he could do so and that the Plaintiff infact has an expert who has proven them. JIS 3.52 It was his evidence that the Plaintiff knew the Defendant and the Third Party through development of two houses for them at Sunbird in Ibex in 2017. 3.53 He testified that the Defendant and the Third Party informed him of intention to develop a larger housing development nearby. The Plaintiff proceeded to do an initial development for them of building a wall, sinking a borehole and connecting electricity as evidenced by the pictures at p.3-8 of the Third Party's bundle. 3.54 Mr Turner testified that the subsequent arrangement agreed upon amongst the three was that the Plaintiff would develop 14 houses, the plot would be subdivided and the subdivided land and the houses would be sold separately to the public, with the Defendant and the Third Party getting the enhanced value for the land forecasted as USD360,000 in total. 3.55 It was his evidence that the Defendant and the Third Party took this concept to their lawyers D. Findlay and Associates who drew up the JVA to capture it. J16 3.56 The Defendant's role under the JVA at p.44 ofth,e.Plaintiffs bundle was to contribute the Palm Grove property and she did so by surrendering the parent title to the Counsel and Ministry of Lands to pave way for subdivision including writing a letter to the Ministry given to the Plaintiff to run with it. She was also involved in working out the layout for the houses and the sizes for subdivision. 3.57 Mr Turner testified that the Plaintiff performed many of its JVA roles as appear at p.45 of the Plaintiff's bundle including securing marking-off of the subdivisions provision of sanitary apparatus and essential services. The Plaintiff was trying to build the houses and to market the project to the public at the point that the development was stopped. 3.58 Mr Turner testified that the final version of the JVA was email circulated around 21st October 2019, approximately a week before 1st November 2019 agreed start date for the programme of works. The lawyer did not print it out on time so the Plaintiff proceeded ,.. , .. . with the works. Jl7 ',.1. 3. 59 The Defendant thereafter would communicate to the Plaintiff and the Third Party in response to the Plaintiff's progress reports; commending the Plaintiff for the progress and offering to get involved in the sales and marketing. One such email is at p. l O of the Third Party's consolidated bundle which mail was sent on 24th January 2020 after the Plaintiff had been doing works for about three months. 3. 60 Mr Turner testified that the Defendant's reason for not signing the JVA was because she and the Third Party were no longer a couple and that her lawyers sent the letter at p. 15 of the Third Party's bundle communicating that she would not continue with the Palm Grove development. 3.61 The Plaintiff replied to the letter setting out all the work it had done but got no response from the Defendant who instead sued the Third Party. The Plaintiff was not paid for the initial works as it was agreed to incorporate and factor them in the JVA. 3.62 Mr Turner was not re-examined by the Plaintiff. 3.63 The Plaintiff's Second Witness was Mr Poso Mwanza (PW2), an expert witness (quantity surveyor) who relied on his report contained in the Plaintiffs supplementary bundle of 25th August 2023. J18 3.64 When cross examined by Mr Chanda for the Defendant, Mr Mwanza testified that his documentary review was confined to the statement claim, bundle of documents and the Plaintiff's witness statement. 3.65 He did not review any bill of quantities from the Plaintiff nor invoices or receipts from expenditure on Palm Grove. 3.66 He was his evidence that his assessment of the expenses was less than that self-assessed by the Plaintiff under various heads except legal fees which he refrained from assessing. 3.67 He admitted that in his professional opinion, termination 1s a more cost saving measure than suspension of works. Also, that had the agreement been terminated in March 2020 the Plaintiffs costs would have reduced significantly. 3.68 Mr Mwanza also agreed that he had done a bill of quantities which reflected the cost of things estimated in the year he prepared it and not the actual costs expended by the Plaintiff in 2019. 3.69 Under continued cross examination for the Defendant this time by Mr Morelli, Mr Mwanza confirmed that in his opinion the Plaintiff's self-assessed overhead expenses were inflated. 3. 70 Also, that in doing his counter assessment he·:did not consider any payslips as the methodology employed did not require it. J19 3.71 Mr Mwanza was also cross examined by Mrs Chanda for the Third Party and testified that he accessed the Palm Grove site as part of the process of preparing his report. 3.72 It assessed the cost of suspension of the works, the cost of termination and the cost of actual works done. 3. 73 He was his evidence that in assessing the cost of works done on an incomplete project like Palm Grove he used the recommended rnethod of physical measurement on site, preparation of a BOQ and application of rates to arrive at an estimate of costs. 3.74 As for the overhead costs there were two components assessed namely on-site overheads and head office overheads. The onsite overheads were assessed by him using the prorata method while the overheads for the Plaintiffs office were assessed using the Hudson method which does not rely on the conti·actor's financial data but on the cost of the project and what the contractor could have contributed to it. 3.75 Mr Mwanza testified that he did not assess the financing charges as the period for which the Plaintiff calculated it is after the figures had already been agreed. • I /' , J20 3.76 The loss of profit component was assessed by him based on the presumptive value of the houses and a two-tier project for the Plaintiff for the actual development and from the sale of the houses. 3.77 Mr Mwanza was not re-examined and on that note the Plaintiff closed its case. 3.78 The Defendant did not testify nor present any documentary evidence or call any witness. 3.79 Mr Nigel George Seabrook (as the Third Party), testified on his own behalf on the basis of a witness statement filed on 3rd September 2021, as evidence in chief and a consolidated bundle of documents filed on 23rd August 2021. 3.80 He stated that in January 2015 he paid the sum of K960,000 for the purchase of Palm Grove. 3.81 He further stated that the Plaintiff, Defendant and Third Party entered into a JVA for purposes of setting up a joint venture project to develop Palm Grove which JVA appears at p.38-75 of the Third Party's consolidated bundle. J21 3.82 Mr Seabrook stated that the both himself and the Defendant appointed D. Findlay and Associates to act on their behalf to prepare the JVA and the Defendant was always part of the negotiations leading to the formation of the JVA as evidenced by the documents at p.1, 78 and 122 of the Third Party's consolidated bundle. 3.83 He stated that the parties agreed on a programme of work which was incorporated into the JVA and the Plaintiff commenced works at Palm Grove on 1st November 2019 and the said programme of works appears at p.55 of the Third Party's consolidated bundle. 3.84 He further testified that the JVA comprehensively and specifically detailed what each parties' independent roles and obligations are as well as the tabulations of how the proceeds and plots will be allocated between the Third Party and Defendant as per clause 3 and 6 of the JVA . 3.85 Mr Seabrook stated that the JVA does not contain any undertaking or agreement that the Third Party would indemnify the Defendant for any losses the Defendant may incur in an action against her failure to perform her obligations under the JVA . J22 3.86 He stated that although the Defendant did not sign the JVA, she consented to it through her conduct as she started performing her obligations under the JVA such as surrendering of the certificate of title to the advocates to facilitate the subdivisions and providing the Plaintiff with an application letter to enable the Plaintiff to carry out its obligations under the JVA. This is evidenced by the documents at p. 52, 83 and 85 of the Third Party's consolidated bundle. 3.87 It was his testimony that the Defendant surrendered the project to the Plaintiff and the Plaintiff commenced works as depicted by the photos at p.3-8 of the Third Party's consolidated bundle. 3.88 It was his further testimony that the Defendant clailned that she had objections to the JVA but to date she has failed to indicate what the specific objections are and to the Third Party's knowledge, the Defendant did not respond to the email at p.16-17 of the Third Party's consolidated bundle requesting for feedback on the draft JVA . J23 3.89 Mr Seabrook stated that the JVA was a commercial transaction and legal agreement separate from the personal relationship he had with the Defendant and therefore any change in circumstance in the relationship between the Defendant and Third Party did not affect the JVA . 3.90 He stated that the Defendant proceeded to gift her son Jarl Louis Hovstad Van Aardt the 15 subdivisions comprising Palm Grove which is proof that the Defendant intended to exclude the Third Party from the property. 3. 91 He further stated that to the detriment of the Plaintiff and Third Party, the Plaintiff was forced to suspend works on 20th April 2024 and the ?laint iff at the time had already done and completed some tasks. 3.92 It was his testimony that the Defendant has no valid cause of action against the Third Party as the Plaintiff's claims against the Defendant arises out of breach of the JVA to which the Third Party is also a party and the JVA does not stipulate that the Third Party shall indemnify the Defendant for any loss incurred to the Plaintiff under the JVA . 3.93 Mr Seabrook was cross examined by Mr Phiri during which he testified that he bought Palm Grove in 2016. J24 3. 94 There were discussions amongst the Plaintiff, the Defendant and him to develop Palm Grove and it was later formalised into the JVA. 3. 9 5 He testified that prior to signing of the JVA there was an agreement and firm plan in place on how to develop Palm Grove. 3.96 He testified that the programme of works at p.55 of his bundle was part of the JVA and that the Plaintiff had done some work on site in accordance with the said programme even before the JVA was signed. 3. 97 Mr Seabrook testified that him and the Defendant did not raise any issue, over the programme of works by the Plaintiff and the Plaintiff beginning work before signing of the JVA . 3.98 He testified that as required under the JVA, the Defendant and him provided Palm Grove for the development and the Defendant who held the title availed it to the Plaintiff to do run with subdivision. The handover of title by the Defendant is confirmed by the Defendant's email and letter at p.83 and 85 of the Third Party's bundle. J25 3.99 Mr Seabrook testified that in parallel to the paperwork, the Plaintiff was doing works on site, and the Defendant was in communication with him and the Plaintiff including over progress of the works and the future profits. The development was progressing in accordance with the JVA . 3 .100 Mr Seabrook also testified that it was only in March 2020 when the Defendant's lawyers sent a letter that it became apparent that the Defendant would not sign the JVA. 3.101 He stated that the Defendant's reason was the change in circumstances between her and him. He testified that it had nothing to do with the Plaintiff and the works on Palm Grove. 3.102 Mr Seabrook stated that his benefit under the JVA was to receive two fully built houses on two of the subdivided plots and that the construction was to be financed by the selling of the plots. 3.103 He testified that the Plaintiff was supposed to be paid for building the houses on Palm Grove but has not been paid since the houses have not been built. J26 3 .104 In terms of his loss from the JVA not being performed, Mr Seabrook testified that the value for the site of the JVA was pegged at USD360,000. The Defendant was going to receive two plots of USD67 ,000 and his loss is the difference between the two or about USD260,000. 3.105 Mr. Seabrook was re-examined and testified that the loss that he had spoken of was based on the JVA which had figures and allocations of values. 3.106 Mr Seabrook closed his case on that note. 4 SUBMISSIONS FROM THE BAR 4.1 After conclusion of trial, the Plaintiff tendered final submissions on 6th February 2024 while the Defendant and Third Party both filed their final submissions on 20th February 2024. 4.2 The submissions were well researched and of immense use, for which I am grateful to Counsel. Owing to the peculiar circumstances of the case, I propose to dispense with a copious reproduction of their content. 5 ANALYSIS AND FINDINGS J27 5.1 I have closely studied the material on record, evidence and submissions and after a careful consideration, my decision is as set out below. The contention of whether the joint venture agreement signed by the Plaintiff and Third Party is binding on the Defendant 5.2 As alluded to earlier, it is not in issue that despite being couched as a tripartite agreement, the JVA was only sig11ed by the Plaintiff and Third Party. 5.3 The position taken by the Plaintiff and Third Party is that the JVA is valid and binding on all three parties whilst the Defendant has propositioned that it is invalid and not binding on her. 5.4 In cross examination of PWl, attention was drawn to clause 11 of the JVA which reads: '· 11. COMMENCEMENT AND DURATION This Agreement shall come into effect immediately upon execution hereof. There shall be an agreed time frame for completion being thirty (30) calendar months from date hereof" (Emphasis added) 5.5 The learned authors of Black's Law Dictionaryl11 define 'execute' as ... 'to make (a legal document) valid by signing ; to bring (a legal document) into its final) legally enforceable form <each party executed the contract without a signature witness>'. J28 5.6 The testimonium clause of the JVA was for its part couched: "In witness whereof the First Joint Venturer has caused its Common Seal to be hereunto af.f1x.ed whereas the Second and Third Joint Venturers have hereunto set their hands and seal the day and year first before written." 5.7 Evidently, the testimonium clause envisaged that the JVA would be executed or signed by all three contracting parties (Plaintiff, Defendant and Third Party). 5.8 It is no wonder that the attestation clause of the JVA had provision for each of the three to sign. 5. 9 It follows therefore that on a proper construction of clause 11 of the JVA, the testimonium and attestation clauses, it is evident that the JVA would only take effect and come i~to force at law when executed by all three parties. 5.10 In Zambia Radiological and Imaging Company Limited and 5 Ors. v Development Bank of Zambial11, Malila JS (as he then was) aptly guided that where parties have embodied their agreement in writing, the Court must look to the writing to discern the intention and terms of the agreement. J29 5. 11 Further, in Cavmont Capital Holdings Plc. v Lewis Nathan Advocates 121, the Supreme Court guided that a court is duty bound to interpret a written contract within its four corners instead of in light of or in conjunction with extrinsic evidence that contradicts or varies the written text. 5.12 Therefore the Defendant not having executed the JVA renders it ineffective and not binding not just on her but on any of the intended contracting parties. 5.13 However, it does not end there, the unchallenged evidential trail shows: (i) the Third Party financed the purchase of Palm Grove which was thereafter registered in the Defendant's name (see paragraph 33 of the Third Party's defence and counterclaim and admission in paragraph 3 and 4 of the Defendant's defence to counterclaim; as well as paragraph 3 of Third Party's witness statement); (ii) the Plaintiff, Defendant and Third Party had some business interaction over Palm Grove (see paras. 3-5 of statement of claim and partial admissions in paras. 3-5 of defence; evidence of PW 1 in cross examination and unchallenged evidence of Third Party in his witness statement); J30 (iii) the Plaintiff began to carryout works to develop Palm Grove and that was even before the invalidated JVA was signed by the Plaintiff and Third Party (see paragraph 7 of the Third Party's witness statement and the testimony of PW 1 in cross examination); (iv) the Defendant 1s on record as having commended the Defendant for the works [after the invalidated JVA had been signed by the Plaintiff and Third Party] (see email dated 23rd January 2020 from Defendant to Plaintiff and Third Party, appearing at p. 9 of Third Party's consolidated bundle); (v) the Defendant is on record of having been involved in the design and layout of the developments by the Plaintiff at Palm Grove and also volunteered to get involved in marketing it (see email dated 23rd January 2020 from Defendant to Plaintiff and Third Party and of 24th January 2020 from Defendant to Third Party, appearing at p.9, 10 and 11 of Third Party's consolidated bundle); (vi) the Defendant is on record as having taken steps to facilitate the marking off and subdivision of Palm Grove (see email thread involving Defendant, Plaintiff, Third Party and Counsel/D. Findlay & Associates, at p.83 of Third Party's consolidated bundle); and J31 (vii) the Defendant and Third Party were involved retaining counsel to draw up the invalidated JVA and the Plaintiff was thereafter looped into the communication with Counsel (see email thread involving Defendant, Third Party and Counsel/D. Findlay & Associates, at p.78 of Third Party's bundle and subsequent mail history that includes Plaintiff at p.123-126 of Third Party's consolidated bundle). 5.14 Based on the foregoing, I find it very safe to imply (as I hereby do) that the Plaintiff, Defendant and Third Party had a verbal agreement to develop a housing estate at Palm Grove to generate a profit from the public. 5.15 I further find that the invalidated JVA was intended to simply document that verbal agreement and delimit its mechanics and granular terms. 5.16 With the invalidation of the JVA it is not quite clear from the rest of the evidence how exactly the parties were going to generate the profit from the public and what their sharing mechanics of it would be. The contention of whether the programme of works submitted by the Plaintiff about 15th October 2019 is valid and binding on the Defendant and Third Party J32 5.17 In Galaunia Farms Limited v National Milling Company Limited!31, the Supreme Court reaffirmed that in civil litigation the burden to prove an allegation is borne by the one who alleges. See also Tiens Kahenya v AG.14 ) 5.18 As far as it is relevant, the papertrail around this contention is as follows - (i) on 15th October 2019 Mesdames D. Findlay & Associates sent an email to the Third Party and Defendant attaching a revised version of the JVA after their reported meeting with the Plaintiff and also advising that its schedules will be populated with information expected from the Plaintiff (see p.126 of Third Party's consolidated bundle); (ii) on 15th October 2019, the Plaintiff sent inter alia the programme of works to Mesdames D. Findlay & Associates via email as a third schedule to the JVA (see p.117 of Third Party's consolidated bundle); (iii) on 18th November 2019 Mesdames D. Findlay & Associates initiated email correspondence with the Plaintiff, Third Party and Defendant for finalising and executing the JVA (see p .124 of Third Party's consolidated bundle); J33 (iv) on 19th November 2019 Mesdames D. Findlay & Associates sent a follow-up email to the Third Party copied to the Defendant and the Third Party responded that the two could sign separately whilst the Defendant responded that she had not reviewed the JVA and she proposed a discussion before she could sign (see p.125 of Third Party's consolidated bundle); (v) on 20th November 2019 Mesdames D. Findlay & Associates sent an email to the Third Party and Defendant attaching the final version of the JVA and the schedules, as well as requesting whether it could be printed (see p.126 of Third Party's consolidated bundle); and (vi) on 23rd March 2020 Messrs Mwenye & Mwitwa Advocates issued a letter on behalf of the Defendant indicating that she would not sign the JVA (see p.15 of Third Party's consolidated bundle). 5.19 The paper trail does not show that the Defendant and Third Party accepted the programme of works sent by the Plaintiff and thereafter to them by Mesdames D. Findlay & Associates. 5.20 Instead all it shows is that the programme of works found embodiment in the JVA as third schedule, which JVA this Court has already found to be ineffective. J34 5.21 For avoidance of doubt, had the JVA been found to be effective as against the Plaintiff and Third Party who signed it, the programme of works scheduled therein would have been binding on the two of them. 5.22 Accordingly, I find that the programme of works is not binding on either the Defendant or Third Party. The contention of liability for the Plaintiff's works and expenses relating to Palm Grove The contention of damages for the Plaintiff for breach of contract, loss of profits and losses from suspension of works at Palm Grove The contention of whether the Defendant is entitled to be indemnified by the Third Party for the Plaintiff's claims or whether the Third Party is instead entitled to damages from the Defendant for breach of contract, loss in value of Palm Grove and loss of income 5.23 With the invalidation of the JVA and obscurity of the terms of the verbal agreement amongst them, the only alleged wrongdoing of the Defendant that the Plaintiff and Third Party appear to latch on is the communication by her lawyers that she would not sign the JVA. 5.24 I reproduce the contents of the letter dated 23rd March 2020 from Messrs Mwenye & Mwitwa Advocates (appearing at p.15 of the Third Party's consolidated bundle) for reference: J35 "Our ref MMA/ A. 279/ C (2) 23rd March 2020 Mr. Philip Turner Philip Turner Construction Limited Lusa/ca Mr. Nigel Seabroolc Lusa/ca Dear Sirs Proposed Joint Venture Agreement relating to Subdivision L of Lot No. 2259/M , Lusaka - Philip Turner Construction Limited, Cathrine Van Aardt and Nigel Seabrook We act for Ms. Cathrine van Aardt in the above matter, kindly therefore note our interest. Our client instructs that sometime in the year 2019, Philip Turner Construction Limited, Mr. Nigel Seabrook and our client, Ms. Cathrine van Aardt engaged D. Findlay and Associates to draft a Joint Venture Agreement in relation to intended developments on a property Jcnown as Subdivision L of Lot No. 2259/M , Lusaka. Our client also instructs that in view of recent revelations and change of circumstances between our client and Mr. Nigel Seabrook, details of which Mr. Seabrook is fully aware of, our client will not proceed with the signing the joint venture agreement. Yours faithfully MWENYE & MWITWA ADVOCATES . ,. Eddie Mwitwa cc: Ms. Cathrine van Aardf' J36 5.25 The evidence shows that the Plaintiff thereafter ceased its development of Palm Grove. 5.26 I hasten to state that there was no legal obligation on the part of the Defendant to execute the JVA . Also (imprudent as it may be) there was no legal requirement that the business of the three parties, created by the verbal agreement, could not be transacted I' unless reduced in writing. 5.27 There is no evidence on record of the Plaintiff and Third Party seeking the Defendant to perform the verbal agreement and of the Defendant declining to do so as the Plaintiffs case and Third Party's counterclaim were instead anchored on the JVA. 5.28 It is not the province of this Court to specuhte and fill in the blanks through assumptions where the evidence is deficient. I am fortified in this regard by the decision of the Constitutional Court in Richwell Siamunene v Sialubalo Gift<51 5.29 It follows that on the limited evidence before me, there is no basis to make a finding of breach of contract on the part of the Defendant in relation to either the Plaintiff, Third Party or both. J37 5.30 Consequent to that the Plaintiff's entire claim and Third Party's counterclaim come cascading down and it is otioise to interrogate the veracity of the liquidated and unliquidated claims made by them against the Defendant. 5.31 As for the Defendant's quest to be indemnified by the Third Party, Order 16 Rule 1 of the Rules of the Supreme Cmirt of Englandl1l in explanatory note 16 / 1 / 4 stipulates that a right to indemnity by a third party cannot exist in isolation. Instead it must be anchored on either contract, statute or an implied principle of law. 5.32 In the case before Court, the Defendant has failed to prove on a balance of probabilities that she was entitled to be indemnified by the Third Party under any of the said anchors. This spells doom for the claim. 6 CONCLUSION AND ORDERS 6.1 The Plaintiff, Defendant and Third Party verbally agreed to develop Palm Grove with a view to making a ·profit from the public and they began to perform that agreement. 6.2 The three had discussions with a view to later translating their verbal agreement into a robust written agreement (the JVA ), which this Court has found to be invalid. J38 6.3 The evidence on the verbal agreement was for its part insufficient to ascertain terms which the Defendant's conduct could be evaluated against to find breach on her part. 6.4 The Defendant for her part has not proven any basis for indemnity by the Third Party whether under contract, statute or implicit from a principle of law. 6.5 The Plaintiff's claims i. to vi. and the Third Party's counterclaims (i) to (vi) all targeted at the Defendant accordingly fail. The Defendant's claim against the Third Party for indemnity also fails. Instead under the Plaintiffs and Third Party's respective heads of viii. and (viii) for 'any other relief the Court shall deem fit', I deem it fair and just to order, pursuant to s.13 of the High Court Actl1J that - (i) the Plaintiff, Defendant and Third Party should explore the possibility of amicably fulfilling the verbal agreement over Palm Grove; (ii) if after 6 months there has been no consensus reached on the :nodalities for fulfilment of the verbal agreement: a) Palm Grove (or its subdivisions) shall be valued to include a segregation of which component of its overall value is ascribed to the land and which to the developments made by the Plain tiff; J39 b) Palm Grove shall thereafter be subdivided between the Defendant and Plaintiff in proportion to the value of the land alone (standing to the credit of the Defendant) and the value of the developments (being apportioned to the credit of the Plaintiff) and for avoidance of doubt, the Third Party's ownership claim in cause 2020 /HP/ 462 would be limited to the portion of Palm Grove that would remain connected to the Defendant; c) the valuation shall be done by a licensed valuation surveyor agreed upon by the parties or failing that appointed by the Valuation Surveyors Registration Board (or its successor body) at the request of any of the parties; and d) the cost of the valuation survey and any subdivision between Plaintiff and Defendant shall be borne equally by the parties. 6.6 I now turn to the Plaintiffs claim the Defendant's v11., unnumbered claim and the Third Party's ciaim (vii) for costs. Costs of litigation are a matter of discretion for the Court in terms of Order 40 Rule 6 of the High Court Rulesl21. 6. 7 As for guidance in the exercise of that discretion, I heed the Supreme Court's judgment in Afrope Zambia Limited v Anthony Chate & Ors 161, where Wood, JS aptly stated: J40 "It is a settled principle of law that a successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted costs." (Emphasis added) 6.8 Back to the case at hand, seeing that there is need for further engagement amongst the parties (to put to rest the issues that sparked this case) and also to the extent that personal differences appeared to be the precipitating factors, I deem it fair and just to order that each party shall bear their own costs of this action. 6. 9 It is my fervent hope that it will in term leave room for the spirit of good will and objective dialogue to germinate and bear the fruit of closure for the parties. Mtvi /c~ Dated at Lusaka this-------------~ -day-of-------, --------- ------ 2024 K.CHENDA Judge of the High Court J41