IN THE HIGH COURT OF MALAWI
COMMERCIAL CASE NUMBER 54 OF 2011
SUSANA MJUWENI PLAINTIFF
YAVINDE NYASULU DEFENDANT
CORAM: THE HONORABLE MR. JUSTICE L P CHIKOPA
Nkhono Mr. of Counsel for the Plaintiff
Mapira Mr. of Counsel for the Defendants
Banda, Court Clerk
The parties contracted for the sale of a piece of real property known as Plot Number 10/584 and 585. The contract sum was K33,000,000.00. According to both parties the contract sum was payable as follows:
i. K1,050,000.00 upon signing of the sale agreement;
ii. K31,950,000.00 payable ‘after the transfer of title deed into the name of the purchaser’. [Sic]
The sale agreement is dated March 29, 2011. As of the date of hearing this matter the full purchase price was not paid. The plaintiff came to court and demanded our determination on the following questions:
i. Whether there was a contract for sale of land known as Plot Number 10/584 and 585 being a dwelling house situate in Area 10, Lilongwe;
ii. Whether the defendant is in breach of such contract by not paying the plaintiff the whole purchase price within the agreed period pursuant to the agreed terms of contract between the parties herein;
iii. Whether the plaintiff is entitled to repossession of the said land due to the breach of such contract and whether the plaintiff is free and entitled upon such repossession to sell to another serious buyer who would be willing to pay the full purchase price and pay back to the defendant the difference upon subtracting allowable deductions;
iv. Whether the plaintiff is entitled to mesne profits against the defendant for the period that the defendant has been in occupation of the said premises being Plot No 10/584 and 585;
v. Whether the plaintiff is entitled to damages for breach of contract;
vi. Whether the plaintiff is entitled to costs of this action.[Sic]
Despite there being a slight disagreement as to how much is owing the defendant does not dispute that there is money owing from her to the plaintiff in relation to the purchase of the property. She however disputes that she is thereby in breach of the sale agreement or that the plaintiff is thereby entitled to inter alia repossess the property in issue.
This is a civil matter. The rule of thumb therefore is that he who alleges must prove their allegation on a balance of probabilities. We think we should refer to the rest of the law applicable herein as we deal with the issues raised in this matter.
THE ISSUES AND A DISCUSSION THEREOF
Like we have intimated above there is an amount outstanding on the sale of the property. The only questions on the one part are firstly the quantum and secondly whether the defendant is thereby in breach of the sale agreement. Depending on our conclusions on the foregoing part we might have to consider whether the plaintiff is entitled to the reliefs set out herein.
In paragraph 12 of her affidavit in support of this action the plaintiff claimed that she was owed the sum of K6,478,889.98 on the purchase price. The defendant on the other hand contends that the sum outstanding is K5,500,000.00. See paragraph 11 of her affidavit in opposition. The defendant has got it right. There is according to exhibit YN7 a sum of K1,000,000.00 which was paid to the plaintiff. This sum the plaintiff somehow neglected to talk about in her claim. She admitted such neglect in paragraph 9 of her affidavit in reply to the defendant’s affidavit. The amount owing for the record therefore is K5,500,000.00.
Whether There Was A Contract For The Sale Of The Land Known As Plot Number 10/584 And 585.
The answer is in the affirmative. It is exhibit SM 1 attached to the plaintiff’s summons.
Whether the Defendant Is In Breach of Such Contract
The plaintiff contends that the defendant was supposed to pay for the property in accordance with the contract which was in her view upon title in the property being transferred to the defendant. That the title having been so transferred and the defendant not having paid the balance of the purchase price the conclusion should be that the defendant is in breach of the sale agreement exhibit SM1 paragraph 1(c) thereof.
The defendant while admitting that she has a balance of K5,500,000.00 to pay denies being in breach of the contract. She argues that the contract did not specify at what time after the transfer of title the balance of the purchase price should be paid. That considering therefore that time is not generally of essence in land transactions, she cited the cases of Skipco (Malawi) Limited v ADMARC  MLR 344 and Matewere v Malawi Housing Corporation  MLR 241, she thinks she is still within the four walls of the sale agreement considering that she has made three payments of K25,000,000.00, K150,000.00, K300,000.00 and K1,000,000.00 since the signing of the sale agreement leaving a balance of K5,500,000.00. Further and/or in the alterative, the defendant argued that the question of her being if at all. That such being the case there is no way of ascertaining that the defendant is indeed in arrears.
In our judgment there is no denying the fact that the sum of K5,500,000.00 is owing from the defendant to the plaintiff. The question is whether the defendant is thereby in breach of the sale agreement exhibit SM1. Whether the defendant is in breach of the sale agreement depends in our view firstly on when the balance of the purchase price was payable under the sale agreement and secondly whether payment was not made when due. If the answer to the second question is on a balance of probabilities that the payment was not made when due the defendant will be held to be in breach of the sale agreement. If however payment was made when due or if it cannot be said whether or not it was so made the defendant will not be held liable.
The sale agreement, the relevant part of which we have quoted above, said payment of the balance was to be effected after transfer of title[our emphasis]. That is different from the wording used in respect of the deposit of K1050000.00. That was payable upon signing of the sale agreement[our emphasis]. The word upon has in our judgment a greater sense of immediacy than after. Upon refers to so soon after the signing of the sale agreement as was nearest to being contemporaneous with such signing. That is why in our further judgment in Clause 1(b) the plaintiff indeed the parties went on to acknowledge the fact that the initial payment had been paid and received at the time of executing the sale agreement. No similar clause was however inserted in the sale agreement as to the payment of the balance of the purchase price. The sale agreement instead said the balance was to be paid after the title had been transferred to the defendant. As to what constituted after was in our judgment up in the air. Up to the parties maybe. It cannot however be said that the parties thought, in so far as the sale agreement is crafted, that the balance of the purchase price would be paid upon the transfer of title, whenever that was, in the same fashion that the initial payment was paid upon the execution of the sale agreement. In so far as therefore the plaintiff’s claim for a breach was based on the fact that the balance of the purchase price was not paid upon transfer of title such claim is without substance. The balance of the purchase price was not payable upon transfer but after.
The other side in this matrix in our judgment is if the balance of the purchase price was according to the sale agreement payable only after the transfer of the title from the plaintiff to the defendant the questions then arise ‘when was the title transferred?’, secondly for how long could the balance of the purchase price remain unpaid after such transfer before it was deemed to be in breach of the sale agreement? And thirdly did in not having paid the balance of the purchase price to date the plaintiff breach the said sale agreement?
The plaintiff, as we have said above says she has since transferred title in the property to the defendant. Meaning as we understand her that the balance is overdue and the defendant in breach of the sale agreement. The defendant on the other hand contends that the transfer has not been effected in the alternative that there is no evidence to that effect. In the further alternative the plaintiff contends it is not clear when the happened if at all. Meaning again as we understand her that it is not possible to conclude on a preponderance of probabilities that the balance on the purchase price is overdue and the defendant in breach of the sale agreement. We must agree with the defendant. Having gone through the plaintiff’s affidavits herein we were unable to find anywhere where such proofs were proffered. This could easily have been done by bringing before this court the new document of title[or a certified copy thereof] showing that title is now vested in the defendant or a search certificate[in original or a duly certified copy thereof] indicating that title had indeed been transferred to the defendant. The two affidavits from the plaintiff do not exhibit such certificate or title document. We cannot therefore conclude that title was indeed transferred to the defendant. Meaning further that the balance of the purchase price payment clause could not have been triggered. But assuming that the title was indeed transferred on some indeterminate date we are of the considered view that the balance of the purchase price could only remain unpaid for a reasonable time after such transfer. This because, and as the defendant argued, time is not of essence in land transactions unless specifically specified by the parties. In other words the defendant was expected to pay the balance of the purchase price within a reasonable time after the title was transferred to if at all still remains unresolved we cannot determine what is a reasonable time after such transfer of title. We simply do not know when time started running. Similarly we cannot determine whether the defendant, not having paid the balance of the purchase price to this date, is so outside reasonableness in so far as time after transfer of the title is concerned as to be in breach of the sale agreement in so far as it relates to payment of the balance of the purchase price.
If we may remind ourselves two questions were asked with respect to the issue whether or not the defendant is in breach of the sale agreement. The first was has the title been transferred to the defendant? The second was has the defendant not paid the balance owing in terms of the sale agreement? In other words has she failed to pay the balance beyond a reasonable time after the date of the sale agreement? As we have seen above there is no evidence as to when the title passed to the defendant if at all. There is therefore no way of knowing when time started running or whether today is beyond a reasonable time after the date of the sale agreement. What we have is a situation, admittedly not very helpful to the plaintiff, where there is a balance on the purchase price but which same is not technically and in terms of the sale agreement a breach of contract. To the question therefore is the defendant in breach of the sale agreement the answer is in the negative.
Plaintiff Is Entitled To Repossess The Property Or Claim For Damages?
In view of our conclusions above these are irrelevant questions. There is no basis for the plaintiff to claim repossession or damages. There is no breach of the sale agreement. She however has other remedies including suing for the balance on proof that the same is due under the sale agreement.
The plaintiff’s claim is dismissed in its entirety.
The plaintiff has lost her case. She cannot have the costs herein. We thought about awarding them to the defendant. We thought not. There is no doubting the fact that there is a balance outstanding on the purchase price. We feel awarding her the costs would not be conscionable in the circumstances. Each party shall therefore pay its own costs.
Dated this May 30, 2012.
L P Chikopa