Eunice Chishimba v Amos Kauzi (2023/SID/91) (25 January 2024) – ZambiaLII

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SID/91 FOR THE MBALA DISTRICT REPUBLIC OF ZAMBIA THE JUDICIARY ~12~~~t:, HOLDEN AT MBALA m, (Civil Jurisdiction) f MA'aisrRATECL~s 1_i:U t P.O. 80'5,_ 4Z!1.;l__:,._M3A1.~ BETWEEN EUNICE CHISHIMBA PLAINTIFF AND AMOS KAUZI DEFENDANT Before: Hon. Deeleslie Mondoka For the Plaintiff : In person For the Defendant : In person JUDGMENT CASES REFERRED TO: i. COLGATE PALMOLIVE (ZAMBIA) INC. APPELLANT AND ABLE SHEMU CHUKA AND 110 OTHERS SCZ APPEAL NO. 181 of 2005; ii. PRINTING AND NUMERICAL REGISTERING CO. V. SIMPSON (1875) LR 19 EXCH. 462; iii. BISHOPSGATE MOTOR FINANCE CORPORATION, LIMITED v. TRANSPORT BRAKES, LIMITED— WINSOR GARAGE, THIRD PARTY 1948; iv. WESLEY MULUNGUSHI V CATHERINE BWALE MIZI CHOMBA SCZ JUDGMENT NO. 11 OF 2004; J1 v. LONRHO COTTON ZAMBIA LIMITED V. MUKUBA TEXTILES LIMITED (SCZ JUDGMENT NO. 11 OF 2002) vi. GARNAC GRAIN COMPANY V HMF FAURE AND FARICLOUGH (1967) 2 ALL ER 353 vii. CAVMONT MERCHANT BANK VS. AMAKA AGRICULTURAL HOLDINGS LIMITED SCZ Judgment No. 2 of 2001 viii. TUI UK LTD V GRIFFITHS [2023] UKSC 48; ix. MAYVIJAY GIRL GOSWAMI v DR MOHAMED AN WAR ESSA & ANOR (2001) ZR 31 x. WILMOT v BARBER (1880) 15 CH. D 105; xi. ELIAS TEMBO V MAUREEN CHIRWA, DUNCAN CHIRWA, THE ATTORNEY GENERAL AND LUSAKA CITY COUNCIL AND PEGGY KANDESHA CAZ APPEAL N 005 OF 2018; xii. RODNEY SAMANYIKA KAPENDA V. ENOCK KAWOKU CHITIYA AND ZCCM INVESTMENTS HOLDINGS LIMITED APPEAL NO. 194 OF 2021 xiii. MOSES MILAMBO (ADMINISTRATOR OF THE ESTATE OF ALFRED SIANDAVU) AND COL. JOSEPH KEITH KAMA V. FLORENCE H. MWEEMBA CAZ APPEAL NO. 009 of 2020. xiv. EASTERN CO-OPERATIVE UNION LIMITED v YAMENE TRANSPORT LIMITED (1989) S.J. (S.C.) and xv. MAAMBA COLLIERIES LIMITED V. SOUTHERN AFRICAN DELIVERY COMPANY LIMITED CAZ APPEAL NO. 122 OF 2019. STATUTE i. THE WILLS AND ADMINISTRATION OF TESTATE ESTATES ACT CHAPTER 60 OF THE LAWS OF ZAMBIA OTHER MATERIALS REFERRED TO: i. ESSENTIAL CONTRACT LAW; ii. BOWSTEAD ON AGENCY (15TH ED. 1985), AND iii. G H L FRIDMAN, THE LAW OF AGENCY 6TH ED. 1990; J2 INTRODUCTION [1] This Judgement emanates from a claim wherein the plaintiff sought vacant possession of a piece of land situated at Homestead Small Holding, off Isanya road, Mbala district being a subdivide portion legally sold to the plaintiff by one MWALIMU SIKAZWE, which tenement is 25 x 30 metres each. [2] Further, the plaintiff sought any other reliefs that the court may deem fit along with an order for costs incidental to the suit herein. BACKGROUND FACTS THE PLAINTIFFS’ CASE [3] This matter was commenced on 20th November, 2023, by way of writ of summons. [4] The matter herein was put in train on 30th November, 2023, by the plaintiff herself, PW1, who testified that––on 6th October, 2021 by a certain Mr. Mwalimu Sikazwe, the executor to the estate of the late Eness Yamba Yamba Mulenga, alienated to her a 25 x 30 parcel from Lot No. 10766/M at a consideration of K13, 000.00. Letters of probate were evinced in court marked aptly as “EC1”and a contract of sale dated 6th October, 2021 marked “EC2”. [5] It was PW1’s testimony that one day when she was going for work, she discerned with disbelief that someone had delivered some bricks on her plot. PW1 related that she regained to her plot the following day at around 15:00hrs to ascertain who it was that had put the bricks, fortunately, the defendant came through with a friend in tow. [6] The defendant felt no need to smarten up his act and greet PW1, but proceeded nonetheless to intimate resolutely that the parcel in questions was his property––PW1 then decided to call the personal J3 representative; put the same on speaker and the executor did confirm that PW1 was the legitimate buyer and that anyone who would argue otherwise should be brought to the relevant authorities if PW1 desired. A missive marked “EC3” was authored by the executor confirming the said purchase by PW1. [7] PW1 intimated that during the call the defendant forcibly took the phone and ventilated his displeasure as he asserted that he bought the parcel from someone who failed to pay the full asking price owing to the terms and conditions. [8] It was PW1’s testimony that on account of failing to have the matter resolved ex curia, PW1 commenced an action against the defendant in the Local Court. [9] PW1 argued that before the matter could materialize in the Local Court, PW1 and the defendant essayed at resolving the matter out of court, and during which time PW1 went to the defendant’s home, they called the executor who confirm that he sold the parcel in question to PW1. The defendant’s wife made propositions in the hope that the matter would be settled ex curia, which attempts the defendant was not fully amenable to, as he required time to muse over the issue prior to making a decision. [10] PW1 asked the defendant to remove the building material as she was about to commence her building project. The defendant was pussyfooted about the suggestion as he wanted to be refunded for the monies spent. Alas and alack, the defendant herein was made of sterner stuff; in that just outside a sennight PW1 found out that the defendant had put down a foundation on the disputed property. [11] Nothing was advanced in cross-examination and re-examination. And that marked the close of the plaintiff’s case. J4 THE DEFENDANT’S CASE [12] The defendant only had two (2) witness to give the nuts and bolts relating to this matter––DW1, the defendant himself, a quadragenarian, of New Location, who rehearsed as hereunder. [13] On 30th January, 2021, DW1 received a certain SIKAZWE who advertised a plot at a consideration of K12, 000.00. DW1 was introduced to the family who were selling the land in question and after DW1 paid the K12, 000.00 the same was refunded a K7, 000.00 to him, seeing as he had failed to satiate the asking price of K12, 000.00. [14] And upon paying the K12, 000.00, DW1 started ferrying sand and bricks ready to build on his property. It was DW1’s testimony that soon after he had taken the sand and bricks at the plot in question PW1 came and made the bodacious claim that the parcel in question was hers. [15] DW1 was then summoned to appear in the Local Court, but the suit did not take off as one of the parties was not present. With that––DW1 and PW1 attempted to have the matter resolved ex curia, but to no avail. It was DW1’s testimony that the executor intimated that he would convey information to the family on the next step. The family then communicated that they had given DW1 the go ahead to erect his building at will, and should PW1 decided to sued let the same sue the family. And that is how DW1 commenced building on the parcel of land. [16] During cross-examination, it was established that DW1 bought the parcel in question using a letter of sale dated 29th July, 2021 between the personal representative, MWALIMU and SIKAZWE; followed by another letter signed by DW1, which letter was curiously dated 27th January, 2021, between DW1 and PETER YAMBA YAMBA. J5 [17] Further, PW1 put DW1 through the wringer, when she argued how DW1 could have been in possession prior to the date that the person who brokered the sale came into possession of the same, which contract date was on 27th July, 2021. DW1 contended that he did not know the extent of the parcel in question and DW1 did not clearly impugn the fact that the plot was not sold with the blessing of the executor. [18] Nothing was advanced in re-examination. [19] On 11th January, 2024, the defendant called its last witness, DW2 a certain, JOSEPHINE NANGOMA, of Maround Compund in Mbala, who testified as hereunder. [20] It was DW2’s testimony that the executor gave her husband power to sale the parcel in question, as he was away. DW2 indicated the earlier buyer wanted a refund as he had failed to finish up the payment after making an initial deposit. The former buyer kept going back and forth with the executor until it was resolved that the said property be sold to someone else. [21] DW2 testified that it was their son who found the new buyer DW1 and that the same was told that there was an earlier buyer prior to him. With that backdrop DW1 came to buy the land from the husband to DW2, and that is how the earlier buyer, SIKAZWE was refunded his monies and the excess was kept by DW2’s husband. [22] During cross-examination PW1 religiously contended that DW2 and husband did not have the power and right to sale the land as they were not the personal representatives of the estate of ENESS YAMBA YAMBA. Nothing was advanced in re-examination. And that marked the close of the defendant’s case. ISSUES FOR DETERMINATION J6 [23] I find the hereinafter issues fundamental and needing determination: (i) firstly, whether or not there was a valid contract of sale between DW1 and the executor, MWALIMU? (ii) secondly, whether DW1 was a bona fide purchaser for value without notice; (iii) whether or not DW2 and husband were in the main agent of the executor (iii) lastly––whether DW2 and husband had the right to alienate the parcel in question? ANALYSIS OF THE FACTS & DETERMINATION [24] In the first instance, it is crucial to note that according to the Learned author of ESSENTIAL CONTRACT LAW, a contract is defined as: “An agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties. A legally binding agreement made between two or more persons by which rights are acquired by one or more to acts or forbearances on the part of the other or other. (Emphasis supplied) [25] The more pertinent question herein is––whether or not there was a valid contract between the defendant (DW1) and the executor to the estate of the late ENESS YAMBA YAMBA when DW1 on the 27th day of January, 2021 did enter in a contract for the sale of land with PETER YAMBA YAMBA the husband to DW2 herein? I shall unpack the herein inquiry anon. [26] In the case of COLGATE PALMOLIVE (ZAMBIA) INC. APPELLANT AND ABLE SHEMU CHUKA AND 110 OTHERS SCZ APPEAL NO. 181 of 2005, the court reaffirmed the shibboleth of freedom of contract as summed up in the often-quoted dictum of Sir George Jessel MR in PRINTING AND NUMERICAL REGISTERING CO. V. SIMPSON (1875) LR 19 EXCH. 462 that: J7 “If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by Courts of Justice”. (Emphasis mine) WHAT IS THE NEMO DAT RULE? [27] Usually, the sale of property takes place between the buyer and either the owner of the property or by his authorised agent. However, there are some circumstances in which a seller may purport to sell property which he does not have any right to sell. In these circumstances the law has to decide which of two innocent parties to favour: the buyer or the original owner. It is at this stage that the nemo dat quod non habet rule1 comes into play. [28] By way of information––the Nemo dat quod non habit rule posits that a person in those circumstance cannot give what he does not have and the buyer does not acquire good title2. [29] As Lord Justice Denning stated in BISHOPSGATE MOTOR FINANCE CORPORATION, LIMITED v. TRANSPORT BRAKES, LIMITED— WINSOR GARAGE, THIRD PARTY.1948 Nov. 29, 30: “In the development of our law, two principles, have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title. The first principle has held sway for a long time, but it has been 1 WESLEY MULUNGUSHI V CATHERINE BWALE MIZI CHOMBA SCZ JUDGMENT NO. 11 OF 2004 2 LONRHO COTTON ZAMBIA LIMITED V. MUKUBA TEXTILES LIMITED (SCZ JUDGMENT NO. 11 OF 2002) J8 modified by the common law itself and by statute so as to meet the needs of our own times.” (emphasis mine) [30] In casu, it has been contended herein on the one hand by PW1, that she bought the property in question from MWALIMU, the executor to the estate of the late ENESS YAMBA YAMBA, and on the other hand DW1 contends that he bought the herein property from the YAMBA YAMBA family through SIKAZWE the initial buyer, who failed to satiate the consideration of K12, 000.00 after making an initial deposit of K7, 000.00, which funds were refunded to him when DW2 and husband concluded the transaction with DW1. [31] A litany of documents has hitherto been evinced by both parties with the hope of legitimizing the herein transactions. THE PERSONAL REPRESENTATIVE: EXECUTOR(S) & LETTERS OF PROBATE [32] The person who assumes control of the assets and liabilities of the deceased person is known as a Personal Representative (PR). The estate of the deceased person vests in the Personal Representative as they are appointed as such. [33] It is worth noting that––an “executor”, is a person to whom the administration of the estate of a testator or part of it is entrusted by express or implied appointment under a will3. An executor (male) or executrix (female) is appointed when the deceased leaves instructions acceptable by law. In this case the PR, i.e., Mr. MWALIMU SIKZWE will follow those instructions. The person making instructions is known as the Testator if male, and Testatrix if female, i.e., ENESS YAMBA YAMBA in our case. The instruction(s) given is known as a Will. The testator identifies some person or persons either expressly or by implication to 3THE WILLS AND ADMINISTRATION OF TESTATE ESTATES ACT CHAPTER 60 OF THE LAWS OF ZAMBIA J9 carry out the instructions in the Will. The executor gets his or her power to act from the Will. [34] The power of a personal representative commences upon the death of a testator who appointed an executor. An Executor gets his or her power to act from the Will. As soon as a person becomes a personal representative, all assets, and liabilities vest in such personal representative4. The personal representative has the power to deal with the deceased’s estate as would the decedent have before he or she died. [35] Except as provided by the Administrator-General's Act, probate may be granted by a court only to an executor appointed by a will, and shall not be granted to a minor or person of unsound mind5. Section 35 of the Wills Act provides that: Probate of a will when granted shall establish the will and evidence the title of the executor from the death of the testator. [36] in casu, the title of MWALIMU herein as the executor has been unimpeachably established and owing to the will of the testatrix herein the estate of the deceased person vests in MWALIMU, the Personal Representative herein as he was appointed as such. [37] Thusly, Mr. MWALIMU as the personal representative may sell, mortgage, pledge, lease or make any disposition necessary in the due administration of the estate6. A sole personal representative has the same powers as two or more personal representatives. WAS THE HUSBAND TO DW2 AN AGENT OF THE EXECUTOR? 4 Section 35 Wills Act 5 Ibid 6 Section 45 (2) of The Wills Act J10 [38] A person selling property on behalf of the owner should have the authority of the owner, otherwise no good title would be passed to the purchaser––Nemo Dat Quod Non Habet Rule. Notwithstanding, an agent who sells on behalf of his principal will pass good title if the agent has authority to do so. [39] The learned author G H L FRIDMAN, THE LAW OF AGENCY 6TH ED. 1990 at p9., defined “agency” as follows: “The relationship 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 affect the principal’s legal position in respect of strangers to the relationship by the making of contracts or the disposition of property”. [40] Further to, BOWSTEAD ON AGENCY (15TH ED. 1985), Art 1(1)), defined an Agency as: “The fiduciary relationship which exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf, and the other of whom similarly consents so to act or so acts. (emphasis mine) [41] Therefore, since the relationship between the principal and agent is based on consent, actual authority is of paramount importance. In re GARNAC GRAIN COMPANY V HMF FAURE AND FARICLOUGH (1967) 2 ALL ER 353, it was held that: “The relationship of principal and agent can only be established by the consent of the principal and the agent. They will be taken to have consented if they have agreed to what amounts in law to such a relationship even if they do not recognize it themselves and even if they have professed to disclaim it. An agent who has express authority to carry out a J11 particular task may also have additional authority to do certain acts which are incidental to his authorized task. For example, an agent who is expressly authorized to sale the principal’s property has implied incidental authority to sign a contract of sale. On the other hand, if his express authority is to find a purchaser, he has no authority to execute a contract of sale”. (emphasis mine) [42] DW2 herein argued that they did indeed had authority to sell the tenement in question, as they conducted the sell under the blessing of the personal representative of the deceased estate, Mr. MWALIMU, which personal representative is outside our jurisdiction. Thus, giving the intimation of being agents in the executor’s stead owing to his consent. More to the point, there is a purchase agreement dated 27th January, 2021, wherein the executor is shown as being the seller, which contract is marked “AK1”. [43] In re CAVMONT MERCHANT BANK VS. AMAKA AGRICULTURAL HOLDINGS LIMITED SCZ Judgment No. 2 of 2001, the Supreme Court stated or held that- “Where an agent in making a contract discloses both the interest and names of the principal on whose behalf, he purports to make a contract, the agent as a general rule is not liable on the contract to the other contracting party”. (emphasis mine) [44] Having said that, it then begs the question––if consent was indeed sought and granted by the executor to DW2 and her husband, why would PW1 be testifying that the executor vehemently opposed the sale of the property to DW1, which testimony DW1 during trial did not with convincing clarity impugn as being incredible! More to the point, if indeed DW2 and her husband did have the blessing of the executor herein, why would the executor go as far as writing a missive, herein J12 marked “EC2” slagging off any persons purporting to own the parcel of the land in question other than PW1 who the executor has plainly recognised as the legitimate owner of the property. Curiously, this evidence has not been oppugned by DW1. [45] In re TUI UK LTD V GRIFFITHS [2023] UKSC 48 it was cited that Lord Herschell LC (at pp 70-71) stated that: “I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.” (emphasis mine) [46] Having considered the arguments herein with exceptional care it is crisp that DW2 and husband were not agents of the personal representative, as no evidence of consent can be gleaned on his part except a clear indication by the personal representative over the phone and via a missive herein marked “EC3”indicating in no uncertain terms that, PW1 was indeed the legitimate buyer of the parcels of land in question, and that DW2 should thus not be seen holding out or acting in the name of the executor. Further, the acts of DW2 and her husband cannot legally bind DW1 and the personal representative herein. J13 SHOULD PW1 BE DISPOSED OF THE PROPERTY IN QUESTION? [47] I will go out on a limb here and say––on the weight of the facts and evidence herein, PW1 should not be disposed of her property. In re MAYVIJAY GIRL GOSWAMI v DR MOHAMED AN WAR ESSA & ANOR (2001) ZR 31, the Supreme Court held inter alia that: “Our Constitution does not countenance the deprivation of property belonging to anyone....” (emphasis supplied) [48] Further, in re WILMOT v BARBER (1880) 15 CH. D 105 at 106 where Fry in deliberating on the law of deprivation observed that: “It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he had acted in such a way as would make it fraudulent for him to set up those rights.” (emphasis supplied) WAS THERE DUE DILIGENCE ON THE PART DW1 PRIOR TO PURCHASING THE PROPERTY? [49] The question I am now left to determine is––whether DW1 could have gone further in his due diligence in order to ascertain the proprietary status of the subject property? I am inclined to believe DW1’s conduct vis-à-vis the property herein fell short of the standard of due diligence required when one is purchasing land, which position the Supreme Court iterated in a number of cases, including ELIAS TEMBO V MAUREEN CHIRWA, DUNCAN CHIRWA, THE ATTORNEY GENERAL AND LUSAKA CITY COUNCIL AND PEGGY KANDESHA CAZ APPEAL N 005 OF 20187. 7 RODNEY SAMANYIKA KAPENDA V. ENOCK KAWOKU CHITIYA AND ZCCM INVESTMENTS HOLDINGS LIMITED APPEAL NO. 194 OF 2021 J14 [50] Why have I taken this position? Well, looking at the anaemic and “as if I care” way in which the transaction herein between DW1; DW2 and husband was concluded, it is safe to settle that DW1 let the need to be diligent slide judging by how the transaction herein was clinched and the documents DW1 elected to rely on. [51] Further, the fact that DW1 cared less about ascertaining whether or not the transaction had the blessing of the personal representative with a tinge more seriousness. [52] In re NORA MWAANGA KAYOBA & ANOR v EUNICE KUMWENDA NGULUBE & ANOR 3 where the Supreme Court held inter alia that: “In purchasing of real property, parties are expected to approach such transaction with much more serious inquiries to establish whether or not the property in question has no encumbrances. Buying real property is not as casual as buying house-hold goods or other personal property.” (emphasis mine) [53] In the premises, DW1 was not a bona fide purchaser for value without notice, which therefore means that––DW1 was not a good faith purchaser who buys for value without notice of any other party's claim or equitable interest against a property. Black's law Dictionary, 10th Edition defines bona fide purchaser for value as: “Someone who buys something without notice of another's claim to the property and without actual or constructive notice of any defects on or infirmities, claims or equities against the seller's title, one who has in good faith paid valuable consideration for property without notice of prior adverse clams.” [54] Simply put where a buyer is or ought to have been aware of the other party's interest in the property, the person cannot be said to be a bona J15 fide purchaser for value without notice. The defence of BFPV is against claims of any prior equitable owner8. [55] Thus, permit me to make mention in conclusion that––seeing as PW1 did crisply inform PW1 that she was the legitimate owner of the property in question, it behoved DW1 to have mitigated his loss, alas, DW1 proceeded against the admonition given by PW1, even after tacitly acknowledging the same and the fact that the wife was essaying at encouraging DW1 to take remedial steps. DW1 brazenly went ahead to put down a foundation and deliver sand and bricks on the parcel in question9. [56] I forthwith order vacant possession of the piece of land whereat the defendant has begun his building, as the plaintiff herein is the legitimate owner of the tenement in question. I further, order each party to bear their own costs. [57] Either party is free to appeal to the High Court for Zambia within 30 days hereof. JUDGEMENT DELIVERED AT MBALA ON 25th JANUARY, 2024 ________________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE 8 MOSES MILAMBO (ADMINISTRATOR OF THE ESTATE OF ALFRED SIANDAVU) AND COL. JOSEPH KEITH KAMA V. FLORENCE H. MWEEMBA CAZ APPEAL NO. 009 of 2020. 9 DW1 should have endeavoured to ‘mitigate his loss’, as was guided in re EASTERN COOPERATIVE UNION LIMITED v YAMENE TRANSPORT LIMITED (1989) S.J. (S.C.) and MAAMBA COLLIERIES LIMITED V. SOUTHERN AFRICAN DELIVERY COMPANY LIMITED CAZ APPEAL NO. 122 OF 2019. J16