Hiteshbai Patel v Agyen-Frempong Kofi and Agyen-Frempong Osei 2017: Case summary

Hiteshbai Patel v Agyen-Frempong Kofi and Agyen-Frempong Osei 2017:The appeal was allowed and the court made an order for specific performance of the

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This is an appeal from a judgement of the high court dismissing the appellants’ claim for specific performance of the sale of property, a refund of excess money’s paid, damages and interest. The appellant and the respondents had entered into a contract for the sale to the appellant of a property known as subdivision ‘MR16/16 of farm no. 748 in Ndola for the sum of k105,000.00. The appellant paid the full purchase price and an additional sum of K48,800.00 to cover various expenses including building a perimeter wall, ground rent, municipal rates and incidental expenses.

The parties then drew up a deed of assignment in which the appellant indicated that the purchasing price of the property was k80,000.00. The reduction of the purchasing price in the deed of assignment turned out to be a catalyst for the respondents to abandon the contract. They felt the reduction in the purchasing price did not reflect the correct position and was done to avoid paying more tax. It was because of this and what the respondents termed as circumstances beyond their control and other factors in a letter to the appellant, did they feel that the appellant was a potential hostile neighbour that the contract was terminated. The respondents then offered the appellant a refund in instalments but the appellant did not accept and proceeded to issue an originating summons that was later converted into a writ of summons.

In the judgement of the high court, the judge said that the purchasing price was k105,000.00 but the appellant knowingly and intentionally reduced the price to k80,000.00 to pay less tax and therefore held that the act of avoiding to pay the correct tax was an illegal act making the contract unenforceable. The judge then proceeded to dismiss the case with costs.

The appellant then appealed. In the appeal, the appellant raised three issues, namely:

                              I.            The court erred in fact and law when it found that the case should fail as it was tainted with illegality when no such contract was produced by any of the parties.


                          II.            The appellant abandoned all other alternative claims in the writ of summons when there was no such averment.



                       III.            Failed to find for the appellant any relief, in respect to the alternative claims.

With regard to the first issue, the appellant stated that the only document submitted before the lower court to the extent and effect of proving purchase was the deed of assignment showing the purchasing price of k80,000.00. The judge in the court of appeal said that that the lower court made the judgement based on the finding of k105,000.00 as the deed of assignment made reference to different cheques reaching to the amount of k152,800.00. The respondents admitted owing that amount and the judge in the lower court therefore, took the view that the figure of k80,000.00 was a scheme to pay less tax to the Zambia revenue authority. As a result, the judge found that it was tainted with illegality and nullified it.

The appellant then proceeded to state that the judge in the lower court did not make an order for a refund and it was a misdirection by the judge as a refund should be there if a contract is tainted with illegality. The appellant further stated that parties to a contract should be presumed to take a legal course of proceedings and that the contract made between the parties might be capable of legal fulfilment as the parties had proceeded to apply for the states consent to assign the sum of k80,000.00 and the consent was granted.

The judge in the higher court then went on to state that the Zambia revenue authority (ZRA) is not bound by the figure in consent and reserves the right to determine the value of property for tax purposes. Even if the price on the deed of consent was genuine, ZRA would still determine the value of the property without putting into consideration the amount on the deed of assignment.

Section 12 of the property transfer tax act provides for the recovery of tax under the property transfer tax act and does not necessarily make contracts as the one entered into between the appellant and the respondent illegal. In the circumstances of both parties, the court below should have made an order for specific performance of the contract.

Furthermore, in the second ground of appeal, the appellant claimed that all other alternative claims were not abandoned and he had stated that he wanted the land,
not the money and there was no proof by the lower court that he had said otherwise. The higher court found that the second ground of appeal had merit and hence, there was an order for specific performance by the court. The third ground of appeal was connected to the second ground of appeal, thus was already catered for under the second ground of appeal.

All in all, the appeal was allowed and the court made an order for specific performance of the sale of the property.

 Full citation: Hiteshbai Patel v Agyen-Frempong Kofi and Agyen-Frempong Osei Appeal No. 13 of 2017

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