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SCZ SELECTED JUDGMENT No. 38 OF 2015

P.928

IN THE SUPREME COURT OF ZAMBIAHOLDEN AT LUSAKA(Civil Jurisdiction)

BETWEEN:

WILFRED BALASHUNDRAM

AND

BIBLE SOCIETY OF ZAMBIA

Appeal No. 124/2013SCZ/8/50/2013

APPELLANT

RESPONDENT

Coram:

For the Appellant:

For the Responde'1t:

Chibomba, Muyovwe and Malila, JJS

On 3rd November, 2015 and 24th November, 2015

Mr. K. Kaunda (.f Messrs Ellis & Company

N/ A (Messrs AMCLegal Practitioners)

JUDGMENT

Malila, JS deli'lered the judgment of the court.

Case refereed to:

1. George Lewis v. Zimco Limited 1992/HP/ 725

2. Wesley Mul:mgushi v. Catherine Bwale Mizi Chomba (2004} ZR 96

3. Mobil Oi: Zambia Limited v. Lotto Petroleum Distributors Limited (1977)Z-"'.336

4. Zambia Bata Shoe Company Limited v. Vin-Mas Limited SCZ judgmentNO.4 of ;994

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929

5. Mwenya ar.d Randee v. Paul Kapinga SCZ judgr:tent No. 12/ 19986. Chillingworth v. Esche (1923) All ER 977. Winn v Bull (1877) 7Ch. D 298. Eccles v. Bryant Pollock (1948) Ch. 939. Branca v. Cobarro (1947) KB 85410. Yo B. ar.d F. Transport v. Supersonic Motors Limited (2000) ZR 2211. Uutale 'J. Zambia Consolidated Copper Mines LimitEd SCZ No. 12,

1994.

Legislation referred to:

1. R"Jle 58(2) of the Supreme Court Rules, Chapter 25 of the Laws ofZambia

2. Statute ef Frauds, 16773. The Rent Act, Chapter 206 of the Laws ofZambic.

Works referred to:

1. Cheshire ani Fifoot on the Law of Contract 10th Edition2. HalsburJ;'s Laws of England (4th Edition) Fel. 93. Chitty on Contracts (General Principles), Vol.1,13th edition

This appeal is against the ruling of the High Court (Kondolo, J)

given on the 4th of February, 2013 in which the court granted the

respondent vacant possession of its property, namely, Plot No.

5918, Lunsemf.va Road, Kalundu (hereinafter called 'the subject

property'), on conditions specified in the Ruling. The appellant was

also ordered to pay all outstanding rent arrears. In the same

judgment, the court dismissed the appellant's counter claim for

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930

specific performance of an alleged contract of sale of the subject

property.

The respondent was the owner of the subject property which had

been let out to the appellant. In breach of :he lease agreement, the

appellant fell into rent arrears, prompting the respondent to

commence an action for an order for the recovery of the leased

premises. outstanding rent amounting to K18,OOO,000.00 and for

costs of the action. Long before the commencement of the action by

the respondent, the respondent had, on the 3rd December, 2010

offered :0 sell the subject property to the appellant for

K1,200,OJO,000. The sale was, however, not cor_eluded.

In opposmg the respondent's application, the appellant admitted

that he was m breach of the lease agreement as at the date of

commencement of the respondent's action on the 18th October,

2012, bu: that he had since been assoilzied of that breach and had

in fact made advance rental payment up to December, 2012. The

appellant also launched his own ela:m by way of a counter elaim,

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931

alleging L1at he had entered into an agreeoent for the purchase of

the subject property which he sought to have specifically performed.

The learned High Court judge upheld the respondent's claim in the

manner earlier indicated, but dismissed the counter claim.

Unhappy with the High Court's Ruling, the appellant appealed to

this court and framed three grounds of appeal as follows:

1. The court below erred in both law and fact when it dismissed

the appellant's counter claim since:-

(i) It relied on the case of George Lewis v. Zimco Limited

(1992) S.J. whose facts and subject are totally different

from the facts and subject herein;

(ii) Unlike in the said case of George Lewis v. Zimco (1992)

the sale herein is governed, amongst others, by the

Statute of Frauds of 1677;

(iii) The terms and conditions of the sale herein are known

as they are prescribed in the LawAssociation of Zambia

General Conditions of Sale;

(iv) The onus of preparing the contract of sale is on the

respondent as vendor. which obligation the respondent

has refused or neglected to lDldertake without a valid

reason;

J5

932(v) The court below in fact agreed that the offer letter

herein is quite detailed in that it contains a clear

description of the subject matter, a clearly stated price

and states the obligations of the parties.

2. The court below having agreed that the offer letter herein is

quite detailed erred in both law and fact by granting the

respondent liberty to enforce vacant possession herein; and

3. The court erred in both and law and fact by awardingcosts to

the respondent."

Both parties to the appeal, through their respective learned counsel,

filed in heads of argument.

At the hearing of the appeal on the 3rd of November, 2015 Mr.

Kaunda, learned counsel for the appellant, was present. There was

however, no appearance from the respondent's counsel on the

record, namely: Messrs AMCLegal Practitioners. Upon satisfying

ourselves from the records kept by the Court Clerk that the notice

of hearing was served on the respondent's advocates on the 8th

October, 2015, we proceeded to hear the appeal. In so doing we

took into :::.ccountthe written heads of argument filed on behalf of

the respondent.

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933

Mr. Kaunda indicated that he was relying on the written heads of

argument. In those heads of argument, the learned counsel alleged

multiple errors of law and fact and misdirections on the part of the

learned bal Judge.

Under gr.:mnd one he submitted that it was gross misdirection on

the part of the court to rely on the case of George Lewis v. Zimco

Limitedl1) because in that case what was involved was the sale and

purchase of a mo:or vehicle which did not require a contract to be

evidenced in writing as is the position in the present case involving

the sale of real property, being Stand Nuober 5819, Lunsemfwa

Road. Here section 4 of the Statute of Frauds 1677 applies. In the

present case tne requirement for a memorandum in writing to

evidence :he agreement for the purchase of the s'.lbject property

was satis::led by the offer letter given by the respondent to the

appellant and on which the appellant signified acceptance.

According to M:-.Kaunda, the offer letter contained the purchase

price, the identity of the property, the names of the parties and,

therefore, ':Jecamea complete agreement upon acceptance by the

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934

appellant. There was no disagreement whatsoever on any terms or

the condition of the sale. The learned counsel referred us to the

case ofWesley :vIulungushi v. Catherine Bwale Mizi Chomba(2) where we

stated, among other things, that the provision of Section 4 of the

Statute of Frauds 1677 requires the contract of sale of land to be in

writing or to be evidenced in writing. According to Mr. Kaunda

although the letter was written and signed by an agent of the

respondent, it nonetheless does not absolve the respondent from its

liability. For this proposition, the learned counsel referred us to our

decision in Mobil Oil Zambia Limited v. Lotto Petroleum Distributors

Limited(3). Although Horizon Properties was acting on behalf of the

respondent, a good contract, according :0 Mr. Kaunda, was

consummcted between the appellant and the respondent. The case

of Zambia Bata Shoe Company Limited v. Vin-Mas Limited(4) was also

cited in aid of this submission.

Mr. Kaunda took great reservation to the rejection by the court

below of the cor_tract evidenced in the letter of offer, particularly

after the learned judge had indicated in his judgment that the letter

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935

in question was quite detailed and contained a clear description of

the subject property, a clear statement of the price and the

obligations of the parties.

According to Mr. Kaunda, as long as the agreement on the sale of

land complied with section 4 of the S:atute of Frauds, the

agreemen: becomes enforceable and other terns such as the time in

which the paying of the purchase price is to be made, are only

relevant i: a term to that effect is contained in the note or the

memorandum evidencing the agreement. In the present case, went

on the learned counsel, there was no such term. And, in any case,

the appellant had at all times been ready to perform his obligations

but the respondent had allegedly refused to cooperate and hence

the counter claim.

The learnei counsel relied on the case of Mwenya and Randee v. Paul

Kapingal5)where the court, in considering allegations of delay to

complete a sale of land, referred to the learned authors of Cheshire

and Fifoot on the Law of Contract lOth Edition and stated that where

the parties expressly stipulate in the contract that time is of the

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936

essence, then it shall be so. Secondly, that where only one party

has been guilty of undue delay and is notified by the other party

that unless performance is completed within a reasonable time, the

contract will be regarded to be at ar_end, then time will again be of

the essence. And finally, that where the nature of the surrounding

circumstances :nakes it imperative that the agreed date should be

precisely observed.

The gist Df Mr. Kaunda's argume::lt under ground one, as we

understand it, is simply that because the letter of offer contained

the material conditions for the sale of the property, it constituted,

upon acceptance, a complete agreement which the appellant was

entitled to enforce. His further argument was that the obligation of

preparing the contract of sale lay with the vendor, which the

respondent in the present case was, but that it failed, neglected or

refused to prepare such contract of scle.

Under ground two, it was Mr. Kaunda's contention that the court

below, having agreed that the offer let:er was quite detailed, erred in

both law ar_dfact by granting the respondent liberty to enforce

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937

vacant possessIOn. No legal arguments were preferred by Mr.

Kaunda in his written heads of argument in support of this

allegation against the learned trial judge. Not unexpectedly, Mr.

Kaunda equally offered no arguments regarding ground three on

costs.

Through the heads of argument filed on behalf of the respondent by

Messrs A:'v1C Legal Practitioners, the respondent opposed the appeal

for various reasons. In relation to ground one, it was argued that

the facts of the case needed not to be on ail fours with the case of

George Lewis v. Zimco Limited for the learned trial court to rely on

that case in his judgment. The argument made under that ground

is that the learned trial judge in the court below borrowed the

principles that were explained in the George Lewis v. Zimco Limited(l)

case where the le:ters exchanged by the parties did not constitute

an offer a...'l.dacceptance respectively. capable of being the subject of

an order for specific performance. The court's reliance on this case

was merely to show that all the elements of the valid contract must

be presen: to warrant an order for specific performance. In cacu,

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938

the fact that there was no con:ract of sale executed in furtherance

of the pu:-ported agreement, and no consideration paid, reinforced

the position that no valid agreement was reached because the

essential element for such an agreement were not present.

It was further arg-J.edthat although there was no dispute that there

was an o::ferand that an acceptance was made, the said offer was

subject tc the condition to the effect that the contract of sale was to

be drawn and executed between the parties, which contract of sale

was to set out the terms and cond:tions of the sale of the subject

property. No such contract was made. The net result was that no

valid agreement for the conveya..J.ceof the subject property exists.

In regard to the issue of the Law Association of Zambia General

Conditions of Sale, it was argued on behalf of the respor-dent that

such conditions are mere guidelines and were superseded in any

case by special conditions where a contract of sale was drawn and

signed by the parties.

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939

It was fu:ther argued on behalf of the respondent that the learned

trial judge was right when he held that although the offer letter in

contentio::l was quite detailed, there was n~ valid contract of sale

since the offer was conditional upon the contract of sale being

drafted and signed by the parties. The case ofWesley Mulungushi v.

Catherine Bwale Mizi Chombal2) was cited to support the proposition

that the court wi[ decree specific performa...ce only if it would do

more perfect and complete justice than the award of damages. In

the instance case, it will not be perfect or complete justice for this

court to grant the appellant an order for specific performance.

Counsel for the respondent ended their written submissions on

ground or:e, by arguing that the respondent has no intention of

entering into the contract of sale of the property in question, and

therefore, a....order for specific performance will be unjust and will

cause irrepcrable damage to the respondent.

Under ground two, the learned counsel for the respondent

supported the learned trial judge's order granting the respondent

liberty to enforce vacant possession of the property. Wewere

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940

referred to the originating notice of motion and the accompanying

affidavit i:l the record of appeal and particu13.rly,to the relief sought

by the respondent in the lower court. The learned counsel argued

that the respondent relied on sectioJn 13(1)(a)and (e) of the Rent

Act, chapter 206 of the laws of Zambia, and that it proved at trial

that the appellant had defaultec. on paying rent due for the lease of

the proper~y, ana. above all, that the respondent required the

property for use by its employees. Therefore, the order of the court

below to the effect that the respondent be granted vacant

possession was the proper one t::>make in the circumstances. It is

for this reason that the respondent urged us to dismiss the appeal.

The learned counsel for the appellant filed in heads of argument in

reply. In these heads of arguoent in repl?, the position of the

appellant was rehashed and no substantial additional legal points

were advanced.

We have carefully examined the documents on the record of appeal

as well as the spirited arguments ma::leby the learned counsel for

the appellant. It seems to us that the real, and in fact only, issue

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941

for determination in this appeal is w~l.etherthere was an enforceable

contract for the conveyance of the subject property from the

respondent to the appellant. In other words, whether the

agreement for the sale and purchase of the property as evidenced in

the offer letter to purchase the property dated the 3rd of December,

2010 from Horizon Properties to Mel Shal Enterprises, constituted

an agreement which can squarely be subject of an order of specific

performance. We do not think that the arguments regarding

satisfaction of the requirements under the Statute of Frauds 1677

or those reg:rrding agency and the role of Horizon Properties played

in the tram,action have any relevance here. The submissions of

counsel in t::-tisregard are, with due respect, out of focus.

Given the significance to this dispute of the sale letter we take the

liberty to reproduce its relevant portions. It rea.ds as follows:-

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942"03-12-2010MELSHALENTERPRISESP.O. Box 34805Lusaka

Dear Sir,

OFFER TO PURCASE PROPERTY No. 5819, LUNSEMFWAROAD,KALUNDU

Follo'lo'ing your visit to the above mentioned property and yoursubsllGuent interest to purchase the same, we now offer it to you onbehalf of our client on the following terms and conditions:

1. The Vendor is selling as beneficial owner.2. The purchase price for the said property shall be ONE

BILLIONTWOHUNDREDMILLIONKWACHAand it shall bepaid in full to Bible Society of Zambia who is the Vendor.

3. Agency fees of Fifty Million Kwacha shall be paid directly toHorizon Properties, by the purchaser, as agreed between theparties.

4. The Vendor shall be responsible for Property Transfer Taxpayment Consent, while any outstanding utility bill will beborne by the Purchaser who is the tenant on the property.

5. This offer is valid for ONLYfourteen (141 days from thisdate and I shall be subject to the terms and conditionsdrafted in the Contract of sale.

6. Each party shall bear their legal costs.

Yours faithfully,Horizon Properties

(signed)Barbara M.K. KiwempindiDIRECTOR.OPERATIONS

Please indicate acceptance of this offer by signing both copies andreturning one to us.

I...WILFREDBALASUNDARAM...Do accept this offer(DIRECTOR)(signed) 14-12-2010"

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943

At the hearing :Jf this appeal, we sought clarification from the

learned counsel for the appellant as to how the letter which was

addressed to Mel Shal Enterprises became an offer to the appellant

in this case. M:-.Kaunda clarified that Mel Shal Enterprises is a

business narce owned and operated by the appellant. We opted

not to take this issue further, bearing in mind that the questions

surrounding the identity of the offeree were not raised at anyone

point either here or in the court below by the respondent.

Mr. Kaunda's view was that this letter, coupled with the appellant's

accepta...ce, constituted an agreeoent sufficient to be a subject of

an order for specific performance. The respondent, on the other

hand, argued that the letter in the form it was structured was only

a tentative agreement subject to the terms and conditions in a

contract of sale :hat was eventually to be drafted.

On examination, the letter of offer clearly states in paragraph 5 that

the offer was to be "subject to the terms and conditions drafted in

the contract of sale." The contract of sale envisaged in paragraph 5

of the letter of offerwas never drafted and signed by the parties.

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The ques:ion is whether the contract of sale constituted in the letter

of offer, is enforceable in these circumstances.

The learned authors ofHalsbury's Lawsof England 4th edition, do shed

some light on the position of the law on this issue. In paragraph

265 they write that:

"Sale of land 'subject to contract.' In contracts for the sale of

an interest in land, it is the almost invariable practice for the

parties to strike a bargain but to make it clear that they do

not intend to enter into a binding contract until a formal

agreement has been drawn up by their solicitors. Such an

intention is commonly indicated by the parties expressly

making their agreement 'subject to contract.' A similar

construction has also been put upon the followingexpressions:

'subject to the preparation and approval of a formal contract;'

'we are instructed to accept and have asked solicitor to

prepare contract'; 'subject to a proper contract to be prepared

by the vendor's solicitor'; subject to a suitable agreement

being arranged between your solicitor and mine'; subject to

the terms of the lease'; 'subject to formal contract to be

prepared by the vendors' solicitor if the vendor's shall so

require'; or where a formal contract is required by an

advertisement for a tender. Furthermore, it is also clear that

the parties may impliedly make agreement 'subject to

contract'.

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Where an agreement is made in the above mentioned

circumstances, even a signed offer, prima facie, cannot be

accepted so as to conclude a binding contract, the reason

being that the offeror clearly does not intend to be bound at

this stage."

At the hearing of the appecl, we brought this passage to the

attention of Mr. Kaunda in the hope that the learned counsel would

rethink the arguments he was advancing before us, bearing in mind

paragraph 5 of the letter of offer of the property :n question. Mr.

Kaunda, howeve::-,plowed on with indomitable faith in the hope that

he woulo::persuade us not to accept as the correct statement of the

law and, therefore, applicable to the present case, the passage from

Halsbury's Laws of England, as we have quoted it above. Undeterred

by our exertions, the learned counsel pursued his argument from

the stan:! point that the offer letter of 3rd December, 2010 became

an enforceable contract of sale of the subject property upon the

appellant's acceptance, and the respondent should not now resile

from that contract but should be ordered to proceed to draw up the

cO:1trac:of sale and carry the conveyance through to completion.

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946

As the learned authors of Halsbury's Laws of England state in the

passage we have referred to above, in contracts for the sale of land

such as the one before us, it is not un-.lsual for the parties to

express tentative or preliminary agreement to be 'subject to

contract.' This affords the parties to seek legal or other advice

before entering a binding ccntract. The expression 'subject to

contract' and similar expressions such as those mentioned in the

passage we referred to in Halsbury's Laws of England, have received

judicial recognition as a safe formular for avoiding legal obligations

when one of the parties to the contract was still intent on

consulting or rethinking the sale.

The learned authors of Chitty on Contracts (General Principles), Vol 1,

13th ediLon state as follows in paragraph 2-110(3):

"There is, thirdly, some difficulty, in applying the offer and

acceptance analysis to transactions such as sales of land

where parties agree 'subject to contract,' so that they are not

bound until formal contracts are exchanged. Strictly, an

'offer' subject to contract does not satisfy the legal definition

of an offer, since the person making such an 'offer' has no

intention to be bound immediately on its acceptance.

However, the agreement is generally made by the usual

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947process; the reason why the parties to it are not bound until

they exchange formal contracts is that the terms of the

agreement negative, until then, the intention to enter into

legal relations. Alternatively, a party could be regarded as

making an offer when he submits a signed contract for

exchange and this would be accepted when the exchange took

place."

There is a consistent line of judicial dicta from comparable

jurisdictions in England on this issue. In Winnv Bullm,there was an

agreement for a lease of a hcuse for a specified period 'subject to

the preparation and approval of a formal contract.' On these facts,

it was Leld that there was :10 enforceable contract. Jessel MR

remarke,::. at page 32 as follows:

"it comes therefore to this, that where you have a proposal or

agreement made in writing expressed to be subject to a formal

contract being prepared, it means what it says; it is subject to

and is dependent upon a formal contract being prepared."

In Chillingworth v. Eschel61, the parties agreed on the sale of certain

property 'subject to a proper contract to be prepared by the vendor's

solicitors.' Sargant W, held that there was no contract between the

parties. Equally, in Eccles v. Bryant PollockiS), the parties agreed on

the sale of certain property 'subject to con:ract.' When the contract

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948

was dravm up and counterparts prepared by each party, the

purchase:- signed his counterpart and posted it to the vendor, but

the latter did nct sign his counterpart. The Court of Appeal held

that there was no contract betweec the parties.

And yet, we are not unmindful of be fact bat a tentative agreement

which is not binding, may well be very different from a provisional

agreement which may be binding. In Branca v. Cobarro(9), it was held

that the wording of the agreement in that particular case showed

that the parties intended it to be binding agreement, and therefore,

that it would remain in force until its prov~sionswere embodied in a

formally drawn up document. In that case, the parties had signed

an agreement under which the buyer was to buy the seller's

m'.lshrcom farm. The agreement ended with the word 'This is a

provisional agreement until a fully legalized agreement drawn up by

a solicitcr embodying all the conditions herewith stated is signed.'

The natural question we have to ask here is whether, what the

appellant and the respondent conduded was a tentative agreement

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subject to another agreement or a provisional one which was

capable J: being 2arried into execution.

Looking at the wording of the letter, more especially paragraph 5

therefore, we are of the firm view that this was clearly a tentative

agreement which was conditional. As the learned High Court judge

correctly observed, the conditions to be set out in the contract of

sale yet to be drawn up remained unkno\\.TI. We do not ~nthis vein,

accept Mr. Kaunda's submission :hat all the relevant terms of the

contract were contained in the letter of offer. That letter of offer

simply sketched out in broad strokes the general points of

agreement. It did not state, for example, the date of completion;

when the purchase price was to be paid; how such purchase price

was to be paid - whether at once or in agreed instalments; when

vacant possession would be deemed to have been given to the

purchaser for purposes of certain liabilities, etc. All these matters

and possibly others, were no doubt to be covered in the contract of

sale that was to be drawn out and signed by the parties. Until, and

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950

unless that was done, the agreement between the parties remained,

in our considered view, conditi:mal and tentative.

As regards grou::1d two, it is alleged that smce tile learned judge

agreed that the letter of offer Viasquite detailed, he should not have

granted vacant possession to the respondent. Mr. Kaunda, as we

indicated already offered no legal arguments to support this ground

either in his Vlritten or oral submissions. The submissions made on

behalf of the respondent however referred us to the originating

notice of motion and supporting affidavit in addition to pointing to

section 13(1)la) and (e) of the Rent Act, c~1.apter206 of the laws of

Zambia.

Section 13 of the Rent Act imposes restrictions on a landlord's right

to possessioc of rented premises. It provides that:

(1) "Noorder for the recovery of possession of any premises

or the ejectment of a tenant therefrom shall be made

unless -

(a) Some rent lawfully due from the tenant has not

been paid.,or some other obligations of the tenancy

(whether under a contract of tenancy or under this

Act) so far as the same is consistent with the

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951provisions of this Act, has been broken or not

performed."

It is abundantly clear that this section sets out precondition for

ejectment of a tenant from any lease premises. Under 13(1)(e),an

order for possession or ejectment may be given where the premises

is reasonably required by the landlord for occupat~on as a residence

for himself or for his employee.

A perusal of the affidavit in support of the originating notice of

motion taken out by the respondent in the lower court, shows that

the basis of the application for ejectment of the appellant from the

subject property, was that he was in brea:::hof the obligation to pay

rent. There is no suggestion whatsoeve:- in the affidavit that the

respondent, as landlord, requ:.red the premises for its own

occupation or that of its employee. As is evident from the

originating notice of motion, the applicat:.on in the lower court was

made solely u:1der section 13(1)(e) of the Rent Act. We agree,

therefcre, with Mr. Kaunda that redolent of hindsight, the

respondent submitted as an afterthought that it sought ejectment of

the ap:;>ellantfrom the premises to accommodate its own employee.

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952

We also agree thc.t the submission is remirjscent of the loathsome

practice (II" counsel attempting to adduce evidence from the bar, and

it is deprecated.

By the appellant's own admission as the Ruling of the lower court

will show at R2, the appellant was indeed in breach of the

obligation to pay rent, which had accumulated to the order of

K18,OOO,C'C'O.OC as at the time of commencement by the respondent

of the action in t~e lower cou:-t. Those arrears were eventually

settled. It is in those circumstar:ces that, we understand the

learned cO'.lnsel for the appellant's submission that the order for

vacant possession of the premises sh.:mldnot have been made.

Our unders:anding of section 13: 1)(e)of the Rent Actwhich we have

already quoted and referred to is that a breach of the tenancy

agreement m regard to payment of rent entitles the lessor to obtain

an order for ejectment of the tenant. We have also examined clause

4 of the tenancy agreement at page 20 of the record of appeal. It

states as follows:

•••

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953

(bl "if the rent hereby reserved or any part thereof shall

remain unpaid for fifteen days after becoming payable

(whether formally demanded or not) or if any of the

covenants on the Tenant's part hereinbefore contained

shall not be performed or observed...then in any case, it

shall be lawful for the Landlord at any time hereinafter

to re-enter upon the said house or any part thereof in

the name of the whole and thereupon this demise shall

absolutely determine ..."

It is beY0::ldargument that a breach of the tenancy agreement in

the present case occurred. The respondent was entitled to invoke

section 13( l)(a) of :he Rent Act, as well as clause 4(b) of the tenancy

agreement. A combined reading of the two provisions leave us in no

doubt that the order of possession was properly given by the High

Court. Purging a breach of a tena.""1.cyobli3ation by settling rent

arrears does not obliterate the breach. Ground two is bound to fail.

Under ground three, the appellant alleged error on the part of the

judge in awarding costs to the respondent.

We have repeatedly stated that the award of costs should normally

be guided ty the principle that costs follow the event, the effect

being that be party who calls for:h the event by instituting suit,

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954

will bear the costs if the suit fails; but if this party shows legitimate

occasion by successful suit, then the defendant or respondent will

bear the costs. This position of the law was clearly articulated in

Y. B. and F. Transport v. Supersonic Motors Limited(lOI and in Mutale v.

Zambia Consolidated Copper Mines Limitedllli

As the successful party in the court below the respondent was

entitled to its :::osts. Ground three is without merit and it is

dismiss=-d.

For the foregoing reasons we believe all the grounds of appeal are

bereft or merit. The appeal is dismissed ir- its entirety with costs to

the respondent to be taxed in default of agreement.

C-, CQ1 \

H. Chibom':>aSUPREME COURT JUDGE

t~ .E. N. C. Muyovwe

SUPREME COURT JUDGE. Malila, SC

SUPREME COURT JUDGE