CHAPTER NINE

TRANSMISSION OF TITLE TO LAND – THE STATUTE OF FRAUDS

1677 AND THE EQUITABLE DOCTRINE OF PART PERFORMANCE

9.0 Introduction

At common law the general rule of English law is that contracts can be
made quite informally: no writing or other form is necessary 1. The Statute
of Frauds, which was passed in 1677, requires under section 4, that
contracts for sale of land or disposition of an interest in land must in order
to be enforceable, be supported by written evidence. The object of the
Statute is to prevent fraudulent claims based on false evidence but in
practice it worked badly as it enabled contracting parties to rely on what
were considered to be technical defences.2

9.1 Statute of Frauds, 1677

The preamble to the Statute of Frauds explained its objects: ‘for the
prevention of many fraudulent practices, which are commonly endeavoured to be
upheld by perjury or subornation of perjury’. The ‘mischief’ for which the
statute was providing a remedy was, therefore, that some transactions
were being conducted orally in such a way that important interests were
liable to be adversely affected by a mode of operation that invited forensic
mendacity, the remedy was to require some greater formality in the
record of such transactions than mere word of mouth if it was to be
enforced3.

Before the enactment of the Statute of Frauds 1677, there was no

requirement that a contract for the sale or any disposition of land or any
interest in land had to be evidenced in writing. The existing status quo
then led to fraudulent practices which were commonly endeavoured to be
upheld by perjury or subornation of perjury. The Statute of Frauds, 1677,
introduced requirements for contracts for sale of land or disposition of
any interest in land to be evidenced in writing failing to which they would
be unenforceable.

Section 4 of the Statute of Frauds 1677, as amended by the (English) Law

Reform (Enforcement of Contracts) Act, 1954 provides that:-

1
Chitty on Contracts, Vol 1, General principles, London: Sweet and Maxwell, 1999, Para. 4-001 at p.261.
2
Ibid.
3
Per Lord Simon of Glaisdale in Steadman Vs Steadman [1974] 2 ALL ER 977 at PP. 995-996.

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 no action shall be brought upon any contract for the sale or other
disposition of land or an interest in land, unless the agreement upon
which such action shall be brought, or some memorandum or note thereof,
shall be in writing and signed by the party to be charged therewith or
some other person there unto by him lawfully authorised.4

The constituent parts of section 4 are discussed below.

1. No action may be brought.

The Statute of Frauds does not avoid parole contracts, but only bars the
legal remedies by which they might otherwise have been enforced 5. The
effect of section 4 is that though a contract may be valid, it may not be
enforceable by an action at law.

2. The sale or other disposition of land or any interest in land.

The words “any interest in land” are comprehensive and cover leases,
mortgages as well as sales6.

3. Some memorandum or note thereof, is in writing.

The agreement itself need not be in writing. A ‘note or memorandum’ of
it is sufficient, provided that it contains all the material terms of the
contract. Such facts as the names or adequate identification of the parties,
the description of the subject, the nature of the consideration, comprise
what may be called the minimum requirements7.

On the content of a ‘note’ or ‘memorandum’, the Supreme Court in the

case of Mijoni Vs. Zambia Publishing Company Limited,8 observed thus:-

It seems to us that it is now settled that for a note or

memorandum to satisfy section 4 of the Statute of Frauds, the
agreement itself need not be in writing. A note or memorandum of it is
sufficient provided that it contains all the material terms of the contract
such as names or adequate identification of the parties, the description of
the subject matter and the nature of the consideration…. It has also been
said that letters may themselves constitute the contract and the written
evidence of it. It follows that whether there is a binding contract or not it
must depend on the construction of the letters.

4
The original section 4 of the Statute of Frauds was amended by the Law Reform (Enforcement of
Contracts) Act 1954. The Act applies to Zambia by Virtue of Chapter 10 of the Laws of Zambia.
5
Madison V Alderson [1883] 8 App. case 467 at 474, per Lord Selbourne.
6
Hayton, D, megarry’s manual of the law of real property 6th ed, London, ELBS, 1982, p.137.
7
Cheshire Fifoot and Furmston’s, law of contract, 11th Ed, Oxford, Butterworths, 1986, p.201.
8
Appeal No. 10 of 1986 (unreported).

161
 The memorandum need not be in any special form, nor is it necessary that
it should have been intended to act as a memorandum.9

“The question is not one of intention of the party who signs the document,
but simply one of evidence against him10”

In Zambia Building and Civil Engineering and Contractors Limited v

Georgopoullos,11 in an action which arose out of a dispute over a building
contract in which the plaintiff claimed specific performance of the sale to it
of the property by the defendant, it was held, inter alia, by the High Court
(Hughes J) that it is well settled that the memorandum required by the
Statute of Frauds need not be in a particular form, and may be constituted
by two or more documents which are clearly connected by reasonable
inference. In the course of delivering the Judgment his Lordship observed
and commented thus:-

The next issue for consideration is mainly one of law and relates to
the plaintiff's claim for specific performance of the agreement for
sale of the property at Wavell Street. In resisting this claim the
defendant firstly asserts that the document at page 1 of the bundle
of documents is not a sufficient memorandum as required by
section 4 of the Statute of Frauds.To meet the requirement of the
Statute the memorandum must adequately establish, (i) the parties,
(ii) the subject matter of the agreement, (iii) the price, and (iv) any
other essential term or condition of the bargain. It is unarguable
that the memorandum in this case sufficiently meets the
requirements of (i), (ii), and (iii). The defendant submits that
because there was also an agreement between the parties to effect a
building on the plot, an essential term of the bargain between them
was omitted, thus rendering the memorandum insufficient and the
agreement unenforceable. There is no direct evidence on the point,
but as a matter of inference and on the balance of probabilities, I
would find that the parties intended the two transactions to be
separate agreements. If it be the case that this inference is not
justified on the evidence and that the contract to build should be
regarded as an essential term of the agreement in question, I would
nevertheless find that the Statute of Frauds does not avail the
defendant. It is well settled that the memorandum required by the
Statute need not be in any particular form, and may be
constituted by two or more documents which are clearly connected
by reasonable inference (see Halsbury Statutes, Second Edition,
Volume 20, page 503). If the contract to build is regarded as an
9
Hayton, D, supra note 6 at page 138.
10
Re Hoyle [1893] 1 CH 84 at 99 per Bowen L.J.
11
(1972) ZR 228.

162
 essential term of the agreement between the parties, then, in my
view, the documents at pages 2 and 3 of the agreed bundle
constitute a sufficient memorandum in writing thereof clearly
connected with the document at page 1 of the said bundle.

In Krige and Another V Christian Council of Zambia,12 it was held, inter

alia, that the engrossment of the lease for execution and the accompanying
letter constituted a valid memorandum in writing of an agreement for a
lease which should have been registered under the Lands and Deeds
Ordinance (now Act) and further that the effect of non registration was
that the agreement was void for all purposes whatsoever.

4. Signed by the party to be charged or by some other person thereunto by

him lawfully authorised.

Only the person whom it is sought to hold liable on the agreement or his
agent, need sign the memorandum. What the section requires is a
signature by or on behalf of the party against whom it is sought to enforce
the contract. The word ‘signed’ means more than signing in the ordinary
sense of the word. What is required is that the name of the party to be
charged appears in some part of the document in some form, whether in
writing, typewriting, print or otherwise.13

In Mobil (Zambia) limited V. Loto Petroleum Distributors limited, 14 the

High Court (Hadden J) held, inter alia, that the plaintiff by inserting its
name twice in the final draft had sufficiently signed the agreement within
the meaning of Section 4 of the Statute of Frauds and the agreement was
enforceable.

9.2 Intervention of Equity – The Equitable Doctrine of Part Performance

In England the Doctrine of Part-performance which had become part of

the Statute law was abolished in 1989 by the Law of Property
(Miscellaneous Provisions) Act of 1989.15

It has been noted from the above that the object behind the enactment of
the Statute of Frauds 1677, was for the prevention of many fraudulent
practices. Notwithstanding section 4 of the Statute, the possibility of abuse
remained. The Statute which was enacted to prevent fraud became an
12
(1975) ZR 152.
13
Hayton, D, supra note 6 at page 140.
14
(1977) ZR 336. The case excerpted below under the section dealing with case law. See also Leeman v
Stocks [1951] CH 941.
15
See Megarry and Wade. the law of real property, 6th ed. London, Sweet and Maxwell, 2000 p. 650-652.

163
 engine of fraud itself. Lord Simon of Glaisdale in Steadman Vs.
Steadman16, succinctly explained the abuse of fraud which came about as
a result of enactment of the Statute. His Lordship also explained the
reasons for equity’s intervention as well as the nature of the doctrine of
part performance. His lordship observed and commented thus:-

The preamble to the Statute of Frauds explained its object: ‘For

prevention of many fraudulent Practices, which are commonly
endeavoured to be upheld by Perjury or Subornation of Perjury … ’ The
‘mischief’ for which the statute was providing a remedy was, therefore,
that some transactions were being conducted orally in such a way that
important interests were liable to be adversely affected by a mode of
operation that invited forensic mendacity. The remedy was to require
some greater formality in the record of such transaction than mere word of
mouth if it was to be enforced.
The second, competing, legal principle was evoked when, almost from the
moment of passing of the Statute of Frauds, it was appreciated that it was
being used for a variant of unconscionable dealing, which the statute itself
was designed to remedy. A party to an oral contract for the disposition of
an interest in land could, despite performance of the reciprocal terms by
the other party, by virtue of the statute disclaim liability for his own
performance on the ground that the contract had not been in writing.
Common law was helpless. But equity, with its purpose of vindicating
good faith and with its remedies of injunction and specific performance,
could deal with the situation. The Statute of Frauds did not make such
contracts void but merely unenforceable; and, if the statute was to be relied
on as a defence, it had to be specifically pleaded. Where, therefore, a party
to a contract unenforceable under the Statute of Frauds stood by while the
other party acted to his detriment in performance of his own contractual
obligations, the first party would be precluded by the Court of Chancery
from claiming exoneration, on the ground that the contract was
unenforceable, from performance of his reciprocal obligations; and the
court would, if required, decree specific performance of the contract.
Equity would not, as it was put, allow the Statute of Frauds ‘to be used as
an engine of fraud’. This became known as the doctrine of part
performance—the ‘part’ performance being that of the party who had, to
the knowledge of the other party, acted to his detriment in carrying out
irremediably his own obligations (or some significant part of them) under
the otherwise unenforceable contract. This competing principle has also
received statutory recognition, as regards contracts affecting interests in
land, in s 40(2) of the Law of Property Act 1925.
But what was in origin a rule of substantive law designed to vindicate
conscientious dealing seems to have come in time sometimes to have been
16
[1974] 2 ALL. ER 977.

164
 considered somewhat as a rule of evidence. It is easy to appreciate how
this happened. Part performance could be viewed as a way of proving an
agreement falling within section 4 notwithstanding the absence of
writing. Seen as such it was no doubt considered necessary to frame
stringent requirements to prevent the doctrine from carting a sedan
chair through the provision of the statute. If part performance was to be
evidence of a contract which could not otherwise and directly be proved,
the acts of part performance should themselves intrinsically be capable of
proving some such contract as that alleged. Oral evidence was not
admissible to connect them with the alleged contract: otherwise, it was
held, the statutory object would be defeated by allowing an interest in land
to pass on mere oral testimony. As the Earl of Selborne LC put it in
Maddison v Alderson ((1883) 8 App Cas 467 at 478, 479) (in a
passage I label ‘(A)’ for ease of reference later):
(A) “The doctrine … has been confined … within limits intended
to prevent a recurrence of the mischief which the statute was
passed to suppress … All the authorities shew that the acts relied
upon as part performance must be unequivocally, and in their own
nature, referable to some agreement as that alleged.17

9.3 Acts of Part Performance.

In order to be sufficient, the act of part performance has to “constitute an

indication that a contract existed; and further more the act had to be related in
some way to the land which had been the subject of the oral agreement. 18” Before
the decision in Steadman Vs Steadman, mere payment of money was not
accepted as a sufficient act of part performance.

The following have been held to be sufficient acts of part performance.

(a) Where vendor at purchaser’s request gave notice to two of his tenants
to quit;19
(b) Where vendor allowed his workmen to make alterations to his
premises under the supervision of purchaser;20
(c) Where purchaser took possession with vendors consent;21
(d) Where purchaser undertakes alterations to the property before the date
of commencement;22
(e) Where purchaser was allowed into possession before the contract and
remained in possession;23 and

17
[1974] 2 ALL ER 977 at pages 995-996.
18
Riddal, J.G, introduction to land law, London: Butterworths, 4th edition, 1988, p. 241.
19
Daniels v Trefusis [1914] 1 Ch 788.
20
Rawlinson v Ames [1925] Ch 96.
21
Kingswood Estate Co. ltd v Anderson [1962] 3 ALL ER 593.
22
Broughton v Snook [1938] 1 ALL ER 411.
23
Hodson v Heuland [1896]2 Ch 428.

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 (f) Where purchaser paid money to vendor and sent vendor a draft deed
of transfer under an oral agreement notified to, and confirmed by
vendor before the magistrates in the proceedings to which the vendor
and purchaser were parties.24

The following have been held to be insufficient acts of part performance:-

(a) Viewing of land by the purchaser;25
(b) Purchaser acts as a house keeper for vendor;26 and
(c) Purchaser with assistance of vendor applies for planning permission to build
on the land.27

The conditions that are required for the doctrine of part performance to be
invoked were discussed by Lord Simon of Glaisdale in Steadman V
Steadman. The judgment of Lord Simon is excerpted below under the
section dealing with case law. The case of Jean Mwamba Mpashi V
Avondale Housing project Limited,28 which is also excerpted below, dealt
with one of the conditions that needs to be satisfied, namely that the act of
part performance must be “unequivocally referable to the contract.” The
case also dealt with the principle established in Steadman V Steadman
that the mere payment of money or deposit could qualify as a sufficient
act of part performance.
The case of Konidaris V. Dandiker,29 also excerpted under the section
dealing with case law, shows that since the doctrine of part performance is
an equitable one, it is subject to equitable principles.
The effect of a sufficient act of part performance is to enable evidence of
all the terms of the contract, including terms of which the acts of part
performance have no relation.30

Lawrence J, explained the effect of part performance to be thus:-

“the effect of the removal of the barrier set up by the statute is to open the
door to parol evidence of the whole agreement.”

In England the doctrine of Part-performance which had become part of

the statute law was abolished in 1989 by the Law of Property
(Miscellaneous Provisions) Act of 1989.31
24
Steadman v. Steadman [1974] 2 ALLER.
25
Clerks v Wright [1737] 1 ALL ER 12 at 13.
26
Maddison v Alderson [1883] 8 App. Case 467.
27
New Hart Builders v Brindley [1975] 1 ALL. ER 1007.
28
Supreme Court Judgment No 12 of 1992[unreported].
29
Appeal No. 157 of 1999 (unreported).
30
Sutherland V Briggs [1841] 1 Hare 26 at p.32.
31
See Megarry and Wade “the law of real property”,4th ed, Stevens and Sons Limited, London, 2000 p.650-

166
9.4 Case Law

(a) For a note or memorandum to satisfy Section 4 of the Statute of Frauds,

the agreement itself need not be in writing. A note or memorandum of
it is sufficient provided that it contains all the material terms of the
contract such as names or adequate identification of the parties, the
description of the subject matter and the nature of the consideration.
Specific Performance of Contract of Sale.

MWENYA AND ANOTHER V KAPINGA (1998) ZR 17 (S.C)

[The facts are summarized under the section dealing with case law in the preceding chapter]

BWEUPE, D.C.J.: This is an appeal by the appellant against the judgment of the High Court granting the respondents
specific performance of a contract for the sale of Plot No. 4109 Sunningdale, Lusaka to the respondent by the 1st
appellant.

The 1st appellant, Miss Jane Mwenya by a letter dated 25th August, 1992, offered to sell to the respondent plot No.
4109 for the sale price of K12,000,000. As a precondition to the sale the 1st appellant requested the respondent to
pay K800,000 to assist her in redeeming the mortgage under which the house was at the time. The 1st appellant
received K800,000 and redeemed the mortgage. When the respondent sent the balance of the purchase price, the 1st
appellant refused to accept the money because the respondent allegedly had taken too long to find the money.

The respondent has lived in that house for six (6) years as a tenant since 7th January,1987, and had paid the
K12,000,000 into court ready to be collected by the appellant.

On 22nd September, 1993, a third party was added to the proceedings, Mr Jason Randee, now a second appellant, a
person to whom the 1st appellant has allegedly sold the house. The 2nd appellant is claiming that there is a valid
contract of sale between him and the 1st appellant in that in October, 1992, the 1st appellant sold the house to him for
K13,000,000. He paid K9,000,000 as deposit and remained with K4,000,000 unpaid.

The court was asked to resolve the following issues:

(a) Whether the contract of sale made by the 1st appellant and the respondent was ever brought to an
end by rescision or other method;
(b) Whether the contract of sale made by the 1st appellant and 2nd appellant (intervenor) was valid;
(c) Whether Intervenor was an innocent bona fide purchaser for value without notice and whether he
acquired good title to the house;
(d) Which one of the two men, respondent and Intervenor, should be recognised as a legal purchaser
of the house.

In its judgment the court said:

"The court has not been shown a copy or the original of the contract signed by the plaintiff and defendant.
The court does not know what the terms and conditions of the agreement were. As a result of this omission,
the court shall infer that the agreement was unconditional and that time of completion of the sale was not of
the essence...."

652.

167
The learned judge summarised the evidence. He said according to the evidence of the respondent , the contract was
made on 25th August,1992, when the respondent responded to the advertisement for sale of the house made by the
1st appellant. On 26th August, 1992, the respondent paid K800,000 to the 1st appellant. The respondent then started
to source for funds to buy the house. During September, 1992 the 1st appellant tried to get the purchase price from
the respondent but she failed. On 12th October, 1992, the 1st appellant decided to sell the house to the 2nd appellant
and signed a contract for sale with Mr Randee, the 2nd appellant. The court went on:

"The following account clearly shows that Miss Mwenya was too much in a hurry and did not give the plaintiff
sufficient time to look for the purchase price. She only gave him the month of September, 1992. I do not
think that delay of 30 days to find K12 million can be said to be inordinate or unreasonable. A delay of four to
six months would have been undoubtedly too long for any vendor to continue waiting for the purchase price.
The one month or one and half months delay by the plaintiff to find K12 million could not be said to be too
long to justify a rescission of a contract. Since time of completion of the sale was not a term of the contract,
the plaintiff was not guilty of breach of any term by the short delay in finding the purchase price.... I rule that
the contract of sale between plaintiff was still subsisting when the 1st appellant purported to rescind it, and it
still subsists now. The purported sale of the house to Mr Randee was a breach of contract on the part of the
defendant."

The appellants abandoned grounds 1 and 7. They argued grounds 2-6. The learned advocates for the appellants,
Miss Sharp contended in ground 2 that the learned trial judge erred in law by holding that a valid contract was in
existence when there was no evidence produced before it to prove such contract. What was in existence was
preliminary agreement which was not enforceable in the absence of a formal contract of sale. She argued that the
correspondence between the 1st appellant and the respondent amounted to a preliminary negotiation which was
included to culminate into a concluded contract but from which either party could retire before the formal contract
concluded. She then referred the court to Halsbury's Law of England 3rd Edition Vol. 34 page 192.

In ground 3 Miss Sharp submitted that the court below erred in law by granting the remedy of specific performance to
the respondent when there was a more appropriate remedy of damages since there was a bona fide purchaser for
value without notice: refer Pacific Mother Auctions Private Limited v Motor Credit (Hire Finance) Limited.32
She argued ground 5 that in the alternative, if this court finds that the 1st appellant's letter of 25th August, 1992
amounted to a valid contract, then the Judge erred both in law and in fact by not finding that the contract was
terminated by the respondent's own breach: See Encyclopedia of Forms and Precendents 4th Edition Vol 17 page
749, Sutton and Shannon on Contracts Butterworths 7th Edition page 325.

In ground 6, Miss Sharp submitted that the court below erred in law by applying the Sales of Goods Act 1893 to
transaction involving sale of Land.

The respondent's advocate Mr Musaba of Mungomba and Associates responded to five grounds of the appellants
grounds of appeal. He said the appellants' ground of appeal is misconceived in that there is sufficient evidence of a
concluded contract between the 1st applicant and the respondent which contract neither left anything to future treaty
nor specifically stated that the parties would treat the said contract merely as a preliminary agreement and/or subject to
a further or formal contract to be drawn. Mr Musaba argued that the sufficient note or Memorandum as desired by the
Statute of Frauds 1677 being the 1st appellant's letter of offer to the respondent dated 25th August, 1992, did not
indicate that the sale transaction would subject to a formal contract to be drawn up nor is such an inference capable of
being drawn from the said letter. In any case the preliminary negotiations were held by the parties prior to the letter of
offer. He referred to page 25 of the record of appeal and Fry on Specific performance 8th Edition page 25 paragraphs
506 - 508.

He argued ground 3 that notwithstanding the fact that completion was to be within thirty days from the date of contract,
the court did not fall into error in law when it held that the contract between the 1st appellant and the respondent was
unconditional in respect of time of completion in that there was nothing in the said letter indicating that time was of the
essence of the contract. He said the holding of the judge in this respect ought not to be misconstrued as having
implied that the contract between the parties was unattended by conditions in its entirety, but that even though the
parties agreed that completion would be within thirty days, nevertheless they did not agree nor intend that time be of

32
[1965] 2 ALL ER 105.

168
the essence of the contract. See Cheshire and Fifoot's Law of Contract 10th Edition 499 paragraphs 1 - 3 where the
learned authors say:

"By way of summary, it may be said that time is essential firstly if the parties expressly stipulate in the
contract that it shall be so; secondly, if in a case where one party has been guilty of undue delay, he is
notified by the other that unless performance is completed within a reasonable time the contract will be
regarded as at end; and lastly if the nature of the surrounding circumstances or of the subject matter makes it
imperative that the agreed date should be precisely observed."

Mr Musaba argued that nothing at page 25 indicates that time was of the essence. He said a contract can only be
repudiated if a notice is given within the stipulated period. He referred the court to Dennis Lyuwa v Cold Storage of
Zambia33 and concluded that in the absence of completion Statement by the vendor to the purchaser time was not of
the essence of the contract.
In ground 4 Mr Musaba submitted that the learned judge was in order to have decreed the remedy of specific
performance in favour of the respondent instead of damages and that the second appellant was not a bona fide
purchaser for value without notice. He argued that an order for damages would not have been sufficient to redress the
respondents plight and therefore the judge properly exercised his discretion in pronouncing an Order for specific
performance in the respondent's favour as being the more appropriate remedy. He referred the court to the case
Hutton v Walting34 where Jenkins, J. said:

"The normal common law remedy for breach of a contract, namely damages is not in all cases
an adequate remedy."

He also referred to the case of Tito v Waddel (No. 2)35 where it was stated:

The question is not simply whether damages are an "adequate" remedy but whether
specific performance as it were will do more perfect and complete justice than award of
damages. This is particularly so in all cases dealing with a unique subject matter such as
land.

Mr Musaba argued that the decree upon being pronounced was practically enforceable and has in fact since been
complied with as in fact, the respondent prior to and during the proceedings, was a tenant of the 1st appellant, and
already in possession of the property the subject of the present appeal. A certificate of title has since been issued in
the respondent's name and his family continues to live on the property…

Mr Musaba responded in ground 5 that the judge did not fall into error in fact or in law by not finding that the said
contract was terminated by the respondent's own breach in that acts or omissions were done or the part of the
respondent as to amount to a breach of the contract of sale. To the contrary the 1st appellant failed and/or neglected
to perform part of the contract as agreed on by the parties, in the contract being the 1st appellant's letter of 25th
August, 1992, thus:

(a) the respondent paying to the first appellant as part of the purchase price an initial amount of K800,000.00;
(b) that the 1st appellant using the said sum to redeem mortgage she had on the property under sale;
(c) after redemption, the 1st appellant then transferring title of the property to the respondent

However, the 1st appellant failed and/or neglected to transfer title of the property to the respondent before she could
receive the balance of the purchase price and as contracted between the parties. He referred the court to the case of
Killner v France36 where Stable, J., said:

"completion" in the contract had its usual meaning i.e. the complete conveyance of the estate and final
settlement of the business."

33
Appeal No. 4 of 1992 (unreported).
34
[1947] 2 ALL ER 641 at 641.
35
[1977] Ch. D.P. 106 at p.322.
36
[1946] 2 ALL. ER p.83.

169
He argued that in the instant case, the 1st appellant was firstly supposed to transfer title of the property to the
respondent: the complete conveyance of the estate, before the respondent could pay her the balance of the purchase
price: the final settlement of the business.

As regard ground 6, Mr Musaba submitted that though it was conceded that the sale of Goods Act 1893 does not apply
to contracts involving disposition of an interest in land nevertheless reference and/or reliance on the said legislation by
the judge is not sufficient as to warrant this court allowing this appeal for the following reasons:

(a) that the provisions of Sections 10 and 22 of the Sale of Goods Act 1893 on stipulations as to time
and a bona fide purchaser for value without notice are not at variance with the general law of
contract;

(b) that an award of damages to the respondents would not have been adequate to redress his plight
as he had acquired a very special and/or very unique interest in the property having lived in it for at
least eight (8) years as at the date of judgment and thus the decree of Specific Performance was
the more appropriate remedy. He then urged the court to dismiss the appeal with costs.

We have anxiously considered the oral evidence on record and the submissions by both learned counsel. We have
also examined the judgment of the learned trial judge, the documents and authorities cited. The issue for
determination, as we see it, however, is whether the letter written by the 1st appellant to the respondent on 25th
August,1992, constitute an offer.
The letter reads as follows:
"Mr. P. Kapinga
LUSAKA
Dear Sir,
re: SALE OF PLOT NO. 4109 - SUNNINGDALE

As per our discussion, I now offer you this Plot at K12 Million. The first payment of K800,000.00 has to be
paid immediately. On completion of this transaction, I will transfer the title deeds and you will pay me the
balance, and this will be within 30 days from the date hereof.

Kindly let me know if this offer is accepted.

Yours faithfully,
Signed
JANE MWENYA"

The above letter was written on 25th August, 1992 and on 26th August, 1992, the respondent accepted the offer and
paid K800,000 deposit as demanded in the letter of offer and which deposit the 1st appellant used to redeem the
mortgage on the property.

Miss Sharp on behalf of the appellant argued that the learned trial judge was in error when he held that a valid contract
was in existence when there was no evidence produced before it to prove such contract. She said what was in
existence was a preliminary agreement which was not enforceable in the absence of a formal contract of sale. She
further argued that the correspondence between the 1st appellant and the respondent amounted to a preliminary
negotiation which was intended to culminate into a concluded contract of sale.

In the case of Mijoni v Zambia Publishing Company Limited37 this court had this to say:

"It seems to us that it is now settled that for a note or memorandum to satisfy Section 4 of the Statute of
Frauds, the agreement itself need not be in writing. A note of memorandum of it is sufficient provided that it
contains all the material terms of the contract such as names or adequate identification of the parties, the
description of the subject matter and the nature of the consideration (See Cheshire and Fitfoot's Law of

37
Appeal No. 10/1986.

170
 Contract 9th Edition at p.186 under the heading: The contents of the note or memorandum). It has also
been said that latters may themselves constitute the contract and the written evidence of it. It follows that
whether there is a binding contract or not it must depend on the construction of the letters."

The letter dated 25th August, 1992, by the 1st appellant addressed to the respondent is not in dispute. It has identified
the parties, the subject matter of the agreement and the consideration of K12 million. The offer was made by Miss
Jane Mwenya to Mr P Kapinga as per their discussions to purchase Plot 4109, Sunningdale, Lusaka at K12 million.
The first payment of K800,000.00 had to be paid immediately. The name of the vendor and the name of the purchaser,
the subject matter plot 4109 and the consideration of K12 million were all featured in that letter of 25th August, 1992.
The accepatance of the offer was clearly made by payment of K800,000.00 deposit which the vendor used to clear the
mortgage. There was therefore nothing left to be included in the future.

In the case of Mundada v Mulwani and Others38 we said:

We will deal first with the question of the learned judge's discretion to make an order for specific
performance. In this respect we are quite satisfied that the majority of the authorities cited to us
related to specific performance of contracts other than the contracts for the sale. The law
concerning specific performance of contracts relating to the sale of land is quite clearly set out in
paragraph 1764 of contracts 25th Edition which reads in part:-

The law takes the view that damages cannot adquately compensate a party for breach of contract
for the sale of an interest in a particular piece of land or of a particular house (however ordinary)....
This authority is supported in countless other cases and this case it is quite clear that the learned
trial judge did not have his attention drawn to the fact that his discretion in relation to specific
performance for the sale of land was decidedly limited.

In this case the preliminary negotiations were had by the parties as indicated by the letter. We agree with the learned
author in Fry on Specific Performance 6th Edition at page 244 paragraph 506 - 508 that when the contract is not
expressly stated to be subject to formal contract it becomes a question of construction, whether the parties intended
that the term agreed on should merely be put into term or whether they should be subject to a new agreement the
terms of which are not expressed in details.
In Lloyd v Nowell,39 a writing purporting to be an agreement for a lease but expressed to be "made subject to the
preparations and approval of a formal contract" was held not to be a concluded contract and the vendor could not
waive such a stipulation. In the matter before us the parties intended that the terms agreed on should merely be put
into form.

In relation to delay Cheshire and Fifoot's Law of Contract 10th Edition on page 499 pages 1, 2 and 3 thereof puts the
matter thus:

By way of summary, it may be said that time is essential firstly, if the parties expressly stipulate in
the contract that it shall be so; Secondly, if in a case where one party has been guilty of undue
delay, he is notified by the other that unless performance is completed within a reasonable time the
contract will be regarded as at end; and lastly, if the nature of the surrounding circumstances or of
the subject makes it imperative that the agreed date should be precisely observed.

We are satisfied, therefore, that upon a proper construction of the 1st appellant's letter dated 25th August, 1992, as at
page 25 of the record a sufficient note or memorandum existed of which time was not of the essence. That there was
no unreasonable delay and that no completion statement was issued. We would also hold as did the trial judge that
there was no basis for rescission.

We now turn to ground four. It was submitted that the trial judge erred in law by granting the remedy of specific
performance to the respondent when there was a more appropriate remedy of damages since there was a bonafide
purchaser for value without notice. The respondent's counsel argued that the learned trial judge was in order to have

38
(1987) ZR 23.
39
(1985) 2 Ch. D.P. 744.

171
decreed the remedy of specific performance in favour of the respondent instead of damages and that a 2nd Appellant
was not a bonafide purchaser for value without notice. He said damages would not have been sufficient to redress the
Respondent's plight. He referred to the case of Tito Waddel (No. 2 1997) Ch. D.P. 106 at p. 322 where it reads:

The question is not simply whether damages are an 'adequate remedy but whether specific
performance as it were will do more perfect and complete justice than award of damages. This is
particularly so in all cases dealing with a unique subject matter such as land."

The Supreme Court went on to hold that the 2nd Appellant had constructive
notice when he purchased the property and that his purchase was subject
to the respondent's title or rights. 40 The Court finally confirmed the learned
trial Judge’s decision ordering the specific performance of the Contract of
Sale.

In Match Corporation Limited V Choolwe and Another, 41 Chitengi, JS, in the

course of delivering the judgment of the Supreme Court observed and
commented thus:-

In this case, as we have already said above, the relationships between the Plaintiff and the
defendant over the property did not start with the execution of the sale agreement under inquiry.
There existed, between the Plaintiff and the defendant, a relationship of landlord and tenant. And,
so far as we have been able to ascertain from the facts, it is clear to us that the payment of rentals
in advance and the agreement between the Plaintiff and the defendant to sell the property to the
Plaintiff, were substantially one and the same transaction. It could not be otherwise. The Plaintiff
advanced the defendant money while he was in the defendant's property. When the defendant
wanted to sell the property, the Plaintiff expressed interest in the property and said the advances
he gave to the defendant be treated as part of the purchase price. Clearly, these transactions
cannot, in relation to the sale and purchase of the property, be treated separately. Indeed, even the
Plaintiff and the defendant themselves say in the agreement they executed that the rentals paid in
advance would be part of the purchase price. The arguments and submissions by Mr. Ndhlovu that
the consideration was past consideration are, therefore, untenable. We accept Mr. Shonga's
submissions that there was valuable consideration, but not for the reasons he gave, but for the
reasons we have given. Having found that the payment of rental advances and the execution of the
sale agreement were substantially one and the same transaction and that the advance rental
payments constituted valuable consideration we find it unnecessary to consider all the other issues
raised by Counsel as to the validity or otherwise of the sale agreement between the Plaintiff and
the defendant. We only refer to the submissions by Mr. Ndhlovu that the sale agreement between
the Plaintiff and the defendant did not comply with Section 4 of the Statute of Frauds . We do not
accept these submissions. We have looked at the sale agreement between the Plaintiff and the
defendant and we find it a sufficient memorandum to satisfy Section 4 of the Statute of Frauds. The
parties' names, the property to be sold and bought, the consideration and the signature of the
parties are all in the sale agreement: Section 4 of the Statute of Frauds will not require anything
more than that. For these reasons we hold that the learned trial Judge misdirected himself when he
held that on the facts of this case there was no binding contract between the Plaintiff and the
defendant.

40
This aspect of notice is covered under Chapter 8 where this case is also excerpted in relation to the
doctrine of Notice.
41
Appeal No. 75 0f 2002 [unreported- the case is also excerpted under chapter eight in relation to the
doctrine
of notice.]

172
(b) Meaning of ‘signing’ or ‘signed’ under Section 4 of the Statute of Frauds, 1677.

Mobil Oil (Zambia) Limited V Loto Petroleum Distributors Limited (1977) Z.R. 336 [H.C]

[The facts of the case appear from the judgment Hadden. J]

The plaintiff claims possession of plots Nos 1708 and 1709, Mungwi road, Lusaka, and damages for loss of profit as a
result of non-use of the premises from the 1st March, 1976, until possession is obtained, the defendant counterclaims
and asks for an order for specific performance of an agreement that had been drawn by the plaintiff's advocates and
was awaiting execution and asks for damages representing moneys paid for providing security and insurance for the
property, the expense of repairing and maintaining the premises and loss and damage resulting from the plaintiff's
refusal to supply the defendant with fuel and lubricants since January, 1976.

In 1970, the defendant occupied part of plots Nos 1708 and 1709, Mungwi Road, Lusaka, which is the plaintiff's
Lusaka-depot, following an agreement between the parties whereby the defendant was appointed the plaintiff's agent
for the distribution of the plaintiff's products in an area extending from Mazabuka to Kabwe. On the expiration of this
agreement, a second agreement was executed on the 24th February, 1972, which commenced on the 1st March,
1972, and was for a period of two years. By a letter dated the 21st February, 1974, the plaintiff informed the defendant
that as it had not been possible to draw a new agreement, it was suggested that the current agreement continue until
the 31st March, 1974, to which suggestion the defendant agreed.

The new agreement proposed by the plaintiff took longer to prepare than was initially contemplated and a draft was not
sent to the defendant until about the middle of 1974. The reasons for this delay resulted from negotiations regarding
the amount of credit that the plaintiff would be prepared to allow the defendant, the rebates that were to be granted on
the sale of the plaintiff's products and provision in the agreement for the plaintiff to periodically inspect the defendant's
accounting records. After having received the draft the defendant consulted his advocate who in turn prepared a further
draft and submitted this to the plaintiff's advocates under cover of a letter dated the 22nd August, 1974.
Correspondence then passed between the defendant's advocates and the plaintiff and its advocates, not only with
regard to the new agreement but also with regard to the possible purchase of the premises by the defendant, and a
caveat was entered on the property by the defendant in July, 1975. Towards the end of September, 1975, a further
meeting was held to discuss the new agreement; yet a further draft (referred to herein as the final draft) had been
prepared, this time by the plaintiff, and during the discussions which lasted about four hours, it was extensively
amended. In November, 1975, certain cheques that the defendant had sent to the plaintiff were dishonoured and all
further negotiations ceased. Notices terminating the agreement of the 24th February, 1972, were sent to the defendant
who has refused to leave the premises, and the defendant discontinued supplying its product to the plaintiff on the 11th
December, 1975.

The agreement of the 24th February, 1972, in which the plaintiff was described as the company
and the defendant as the distributor, commenced on the 1st March, 1972, and was for a period of
two years or until terminated by either party giving to the other not less than three months notice in
writing of its intention to terminate the agreement PROVIDED THAT such notice shall not be given
before 1st March, 1972 and PROVIDED THAT the firm period of this agreement may be renewed
at the option of the Company by the Company giving to the Distributor notice in writing of its
intention so to renew on the same terms and conditions and not later than . . . "

No notice to renew the agreement was given by the plaintiff although the plaintiff did indicate a willingness to enter into
one. After further negotiations had taken place, the plaintiff prepared the final draft and this was discussed at the
lengthy meeting which was held towards the end of September, 1975, between Mr Osbourne, the sales manager of the
plaintiff company and who had conducted most of the negotiations for a new agreement on behalf of the plaintiff, Mr
Low, a fellow employee of the plaintiff company and Mr Tembo, the Managing Director of the defendant company. The
final draft was extensively amended and both Mr Osbourne and Mr Tembo said that they had both finally agreed to the
terms and conditions of the final draft as amended and all that was then required was for it to be re-engrossed and
signed.

In his evidence Mr Osbourne said :

173
 I spent about four hours with Mr Tembo and we agreed to the terms but on my return to Ndola I
received a message that the agreement had been withdrawn. Mr Tembo kept changing his mind.
There was definitely no agreement reached between the parties; and later on:

When I left the office of Mr Tembo it was my understanding that we had agreed on the terms.
Before I got back to my office I received a message to the effect that Mr Tembo had changed his
mind and wanted to discuss it further. That is why the agreement was not re-typed.

In his evidence about the meeting, Mr Tembo explained that there had been a dispute between him and the plaintiff
regarding the issue of credit notes in favour of the defendant, that the final draft was discussed in detail and altered to
record the agreement reached by the parties; that the plaintiff had agreed that a separate lease would be drawn
whereby the defendant would acquire the property after a period of ten years and that notes to this effect were
endorsed on the final draft. The meeting ended amicably and it was agreed that the credit notes would be forwarded to
the defendant. After the meeting the defendant sent the following telex message to the plaintiff:

"1. Instruct your lawyer to forward the contract of sale re Lusaka depot - lease assignment to Loto to B.
Munyama.
2. Wholesale agreement - there have been some wording corrections - omissions and additions. B.
Munyama is contacting your lawyers to finalise.
3. Finalise outstanding matters
K2,292.92 - credit note awaited
130.20 - credit note awaited
2,285.73 - credit note awaited
2,066.52 - credit note awaited
151.20 - credit note awaited
Tembo - Loto petroleum."

Section 4 of the Statute of Frauds, as amended by The Law Reform (Enforcement of (contracts) Act, 1954, provides
that a contract relating to lands, tenements or hereditaments, or any interest in or concerning them shall not be
enforceable unless it is evidenced by some memorandum or note thereof in writing, signed by the party to be charged
or by some person lawfully authorised by him to sign. The final draft prepared by the plaintiff is not signed but the
documents is headed "Mobil Oil Zambia Limited"; the names of both parties are set out; in the final draft, and it
concludes; As witness the hands the parties hereto or their duly authorised representatives the day and year first
before written.

In Hubert v Treherne and Others,42 an agreement of which there had to be a memorandum or note in order to render it
enforceable in accordance with section 4 of the Statute of frauds was prepared for the directors of the defendant
company; the names of both parties appeared in the agreement and it concluded with the words: "As witness our
hands." The document was not signed by either of the parties. At page 1342, Tindai, CJ, said:

I am not satisfied that there is in this case any signature at all. The names of the parties
necessarily appear in the body of the instrument, which would not otherwise be intelligible. To hold
that the mere introduction of the names of the parties was sufficient would be almost to repeal the
statute. Suppose this agreement had been prepared not by the secretary of the company but by
their attorney; could it have been contended that the insertion by him of his clients' name would
have been a signature within the statutes Yet I am not aware that the power of an attorney diners
from that of a secretary or any other person who may be employed to prepare such an instrument.
Then look at the form of these articles of agreement, which conclude thus: 'As witness our hands.'
These words evidently show that the names of the contracting parties were meant to be
subscribed, and that it was not intended that the insertion of the names in the body of the
instrument should operate by way of signature.

42
133 E.R 1338.

174
At page 1343, Erskine, J, said:

It does not appear that these articles of agreement were signed by the defendants, or by any agent
"hereunto lawfully authorised by them. We cannot help seeing that it was intended that the signature
of the parties should be added.

And at the same page, Maule, J, said:

"The articles of agreement of the 25th March, 1831 do not seem to me to be a memorandum signed by
anybody. Before the Statute of Frauds no one could have entertained a doubt upon that point.

Since the statute the courts, anxious to relieve parties against injustice, have not infrequently stretched the
language of the act. But none of the cases hitherto decided under this statute have gone so far as the present."

In Leeman v Stocks43, an auctioneer being the agent of the defendant, sold a dwelling-house to the plaintiff. Before the
auction commenced he wrote the defendant's name on a printed form of agreement as well as the date of the sale and
particulars of the property. After the auctioneer had accepted the plaintiff's bid he inserted the plaintiff's name in the
agreement together with the purchase price and requested the plaintiff to sign the agreement over a revenue stamp in
order to bind the plaintiff to the contract. The plaintiff signed as requested but neither the defendant nor the auctioneer
signed it. The plaintiff sued for specific performance of the agreement and the defendant contended that there was no
sufficient memorandum to satisfy the statute, in that the document itself contemplated that it should be signed by both
parties. This was accepted by the court but it also found that when the auctioneer obtained the plaintiff's signature to
the document, neither the auctioneer nor the plaintiff ever intended any other signature to be added to it; it was the
intention of both parties that the document should be the final written record of the contract. Roxburgh, J, in
considering Hurbert v Treherne , at page 1048 said:

The position in Hubert v Treherne was at once like and unlike the position in the present ease. So
far as the form of the agreement is concerned, the resemblance is close. Plainly, in Hubert's case
the agreement per se contemplated signature by both parties. Plainly, in the present case, the
agreement per se likewise contemplates signature by both parties. There is, however, the
important difference that in Hubert v Treherne there was no evidence outside the language of the
agreement. Here there is evidence which is, in my judgment, conclusive, if it is admissible. I think
there is no doubt that Hubert v Treherne is an authority for the proposition that evidence is
admissible and that, while the form of agreement is a matter of such importance that, in the
absence of any other evidence, a document in this form would not be held to be a sufficient
memorandum to satisfy the Statute of Frauds, nevertheless the fact that the document per se
contemplated signature by both parties would not be treated as conclusive, or, indeed, as
paramount evidence of the fact that the signature of both parties was actually required, If there is
evidence to the contrary which the court accepts.

Roxburgh, J, then pointed out that in Hubert's case the agreement clearly contemplated that the contracting parties
should sign it and that it was not intended that the insertion of the names of the parties in the body of the instrument
should operate by way of signature. He continued:

If that were all, the decision in Hubert's case would, no doubt, be of great assistance to the vendor
in the case before me, but COLTMAN, J, said:

It is very important that this statute should not be frittered away. Here, it appears that it was
intended that the signature of the parties should be fixed. This differs from the case of a bill of
parcels delivered out in the usual manner as a complete and perfect instrument. It is said the
parties treated the articles of agreement as a perfect instrument ...

Therefore, he plainly recognised that evidence of that matter was admissible. Then he continues:

43
[1951] 1 ALLER 1043.

175
 ' ... It is not certain that the plaintiff saw the articles; and there was no sufficient evidence of any
authority to give a out the copy on behalf of the directors.'

It is thus plain that he might have reached a different conclusion the plaintiff had seen
the articles and there was conclusive evidence of authority to give out the copy on behalf
of the directors. ERSKINE, J, was even more explicit. He said:

' It does not appear that these articles of agreement were signed by the defendants, or by
an agent "thereunto lawfully authorised by them.'

These passages seem to me to make it perfectly clear that it is open to the court to investigate the circumstances to
see whether the document came into being as a perfect agreement, and, if the court on the evidence finds that it did,
then Hubert v Treherne seems also to recognise that the court is not prevented from so holding by any impediment in
law."

The court found that there was a sufficient memorandum to bind the defendant and a decree of specific performance
was made.

In Evans v Hoare and Another44 [3] the defendant's authorised agents wrote a letter to the plaintiff, the defendant's
name appearing at the beginning of the letter. It was presented to the plaintiff for signature and he signed it. It was held
that the defendant's name, inserted in the letter by his authorised agent, amounted to a signature binding the
defendant within section 4 of the Statute of Frauds.

The final draft that was discussed at the meeting between Mr Osbourne, Mr Low and Mr Tembo, commences as
follows:

''MOBIL OIL ZAMBIA LTD.

Wholesale Distributors Agreement .
An agreement made this.......................... day of......... 1975 between MOBIL OIL ZAMBIA LIMITED, having
the registered office at Ndola in the Republic of Zambia (hereinafter called 'the Company') of the one part,
and LOTO PETROLEUM DISTRIBUTORS LIMITED, whose registered office is situated in Lusaka in the
Republic of Zambia (hereinafter called the 'Distributor') of the other part.
WHEREBY IT IS A GREED:''

I am satisfied that, following the decision of Evans v Hoare the plaintiff in inserting its name twice in that part of the
final draft to which I have referred has sufficiently signed the final draft within the meaning of section 4 of the Statute of
Frauds. The court must, however, to use the words of Roxburgh, J, in Leeman v Stocks, "investigate the
circumstances to see whether the document came into being as a -perfect agreement, and, if the court on the evidence
finds that it did, then . . . the court is not prevented from so holding by any impediment in law.'' After the meeting at the
end of September, 1975, both Mr. Osbourne and Mr Tembo were of the view that the final draft as amended
represented the agreement reached between the parties and they agreed to sign it and the lease, once the agreement
was re-typed and the lease prepared. Although Mr Osbourne said he received a message on his return to Ndola that
Mr Tembo had changed his mind, I find that this was not the case; Mr Tembo sent the telex message to Mr Osbourne
shortly after the meeting which clearly shows that he had not changed his mind. I am satisfied that the final draft as
amended represents an agreement entered into by both the plaintiff and the defendant and that it is a sufficient
memorandum for enforcing the agreement against the plaintiff as required by the Statute….

44
[1892] 19 B.T 93.

176
(c) Statute of Frauds, 1677 – Doctrine of part performance – Sufficient Acts of Part Performance.

STEADMAN V STEADMAN [1974] 2 ALL ER 977. [H.L]

In Steadman V. Steadman, the husband and wife were registered as the joint proprietors of the house in which they
lived with their child. In July 1968 the wife left the husband and in November, on application to the magistrates’ court,
she obtained a maintenance order of £2 a week for herself and £2.50 a week for the child. In April 1970 the wife
obtained a decree nisi of divorce and in June she applied to the county court for an order under s 17 of the Married
Women’s Property Act 1882 that the house be sold and the proceeds divided between herself and the husband.
Following considerable correspondence a tentative agreement was reached in February 1972 whereby the wife would
transfer to the husband her interest in the house for £1,500. At that time the husband was in arrears in paying the
wife’s maintenance in a sum of £194. On 2 March the matter came before the magistrates’ court in proceedings by the
husband for variation of the maintenance order and by the wife for enforcement of payment of the arrears. Before the
hearing the parties met and came to an oral agreement, subject so far as necessary to the approval of the justices, that
the wife would surrender her interest in the property for £1,500, that the wife would consent to the discharge of the
maintenance order in her favour, that the parties would consent to the continuance of the maintenance order in favour
of the child, that the husband would, before 30 March, pay £100 in part discharge of the arrears and that the wife would
consent to the remission of the balance of the arrears. At the hearing the husband’s solicitor explained to the justices
what had been agreed and the clerk obtained the wife’s confirmation of the terms. The justices thereupon approved
the agreement and, so far as it lay within their jurisdiction, implemented it by varying the maintenance order and
adjourning the proceedings with regard to the arrears. The court notified the husband in writing that: ‘The proceedings
have been adjourned for you to pay the sum of £100 not later than the 30 th March, 1972, as all the arrears except that
amount have today been remitted. If you fail to pay as directed, further proceedings will be commenced to recover the
amount due.’ The husband paid the £100 by 30th March. The husband’s solicitors prepared a form of transfer and sent
it to the wife’s solicitors for signature. They returned the transfer unsigned stating that the wife did not find the terms
acceptable. The proceedings under s 17 of the 1882 Act were restored for hearing, the wife contending that the
agreement of 2nd March, being an agreement for the disposition of an interest in land, was unenforceable under s 40a
of the Law of Property Act 1925 in that there was no note or memorandum in writing and no act of part performance.
Held (Lord Morris of Borth-y-Gest dissenting) – The agreement of 2 nd March was enforceable against the wife for the
following reasons—
(i) In order to establish facts amounting to part performance it was necessary for a plaintiff to show that he had acted to
his detriment and that the acts in question were such as to indicate on a balance of probabilities that they had been
performed in reliance on a contract with the defendant which was consistent with the contract alleged. There was no
general rule that the payment of a sum of money could never constitute part performance .
(ii) Although the payment by the husband to the wife of £100 would, by itself, have been insufficient to constitute part
performance, that payment taken in conjunction with the announcement of the oral agreement to the justices, the
abandonment by the husband of his right to claim full remission of arrears of maintenance and the preparation and
delivery to the wife of a form of transfer for her signature amounted to acts of part performance by the husband in that
the acts were such as to indicate that they had been carried by him in reliance on a contract with the wife of the nature
alleged. In the circumstances it would therefore be inequitable to allow the wife to rely on the defence under s 40(1) of
the 1925 Act and oral and affidavit evidence was admissible to prove the contract.

LORD SIMON OF GLAISDALE. My Lords, the facts which lie behind the issues here have been stated by Edmund
Davies LJ in the Court of Appeal ([1973] 3 All ER 977, [1974] QB 161) and by my noble and learned friends who have
preceded me. The respondent (‘the husband’) in effect is seeking to enforce that term of what the learned registrar
called ‘an oral package deal’ (by which is meant an indivisible contract consisting of a number of obligations on each
side) which relates to the disposition of an interest in land. The contract (of 2 March 1972) disposed of the various
issues raised by three legal processes: (i) a summons under s 17 of the Married Women’s Property Act 1882 taken
out by the appellant (‘the wife’); (ii) a summons under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960
taken out by the husband for variation of a maintenance order which had been made in favour of the wife and the child
of the marriage; (iii) a summons by the wife for enforcement of payment of arrears of £194 which had accrued under
the maintenance order. The terms of the contract were necessarily conditional on approval by the justices at the
hearing which would immediately ensue. They were in effect as follows: (i) the wife would consent to the discharge of
the maintenance order of £1·75 weekly in her favour; (2) the husband and the wife would consent to the continuance of
the maintenance order of £2·50 weekly in respect of the child; (3) the husband would, before 30 TH March 1972, pay
£100 in part discharge of the arrears; (4) the wife would consent to the remission of the balance of the arrears; (5) the

177
wife would surrender to the husband the interest which she claimed in the former matrimonial home; (6) the husband
would pay her £1,500 for such interest.
As will appear hereafter, it is only the obligations incumbent on the husband which are relevant to the doctrine of part
performance, with which your Lordships are concerned. But, in addition to his positive obligations set out under heads
(2), (3) and (6) above, which would on execution involve detriment to him, there were some tacit forbearances by the
husband: (a) it was open to him, on his complaint for variation of the maintenance order, to ask the justices to reduce
the maintenance order in respect of the child; (b) it would be unusual, to say the least, for justices to order the
discharge of maintenance arrears otherwise than by a weekly installment order; before ordering a payment of £100
within 28 days they would require positive proof that the husband had such a sum at his immediate disposal; the
husband forbore from putting the wife to proof; (c) the enforcement of arrears of maintenance is a matter of judicial
discretion, so that it was open to the husband to ask the court to discharge the entire arrears; (d) it is the practice not to
enforce more than a year’s arrears of maintenance (Pilcher v Pilcher); the evidence does not show how long the
arrears had been accumulating (this would depend mainly but not exclusively on whether the husband had been
keeping up the maintenance payments in respect of the child); and it might be that the justices would have refused to
enforce arrears of £100, even by installments.
I would emphasise that the agreement generally, and various terms of it specifically, provided for the justices to be
informed as to what had been agreed and to be asked to implement the matters which lay within their jurisdiction.
The justices, on being informed of the agreement between the parties and on being satisfied that the wife was a freely
and knowledgeable consenting party, approved it, and implemented so much of it as lay within their jurisdiction, by
varying the maintenance order on the husband’s complaint and by adjourning the wife’s complaint for variation, in order
that the husband might pay the £100 not later than 30 TH March 1972; they remitted the balance of the arrears. This
adjournment and remission were the only positive orders that the justices made on the wife’s complaint; they did not
actually order the husband to pay the £100, though the order states: ‘If you fail to pay as directed, further proceedings
will be commenced to recover the amount due.’ There was, in other words, no merger of the husband’s contractual
obligation to pay £100 in a subsequent judgment debt. On the justices’ approval the agreement between the parties
became contractually binding (Smallman v Smallman), subject to any question of enforceability in view of the want of
writing and signature to evidence it.
This is one of the most difficult situations where two legal principles are in competition. The first legal principle is
embodied in s 40(1) of the Law of Property Act 1925 which states:

‘No action may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the
agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the
party to be charged or by some other person thereunto by him lawfully authorised.’

This provision replaced that part of s 4 of the Statute of Frauds (1677) which related to interests in land. The preamble
to the Statute of Frauds Explained its object: ‘For prevention of many fraudulent Practices, which are commonly
endeavored to be upheld by Perjury or Subornation of Perjury …’ The ‘mischief’ for which the statute was providing a
remedy was, therefore, that some transactions were being conducted orally in such a way that important interests were
liable to be adversely affected by a mode of operation that invited forensic mendacity. The remedy was to require
some greater formality in the record of such transaction than mere word of mouth if it was to be enforced. The
continuing need for such a remedy for such a mischief was apparently recognised as subsisting when the law of
landed property was recast in 1925.
The second, competing, legal principle was evoked when, almost from the moment of passing of the Statute of Frauds,
it was appreciated that it was being used for a variant of unconscionable dealing, which the statute itself was designed
to remedy. A party to an oral contract for the disposition of an interest in land could, despite performance of the
reciprocal terms by the other party, by virtue of the statute disclaim liability for his own performance on the ground that
the contract had not been in writing. Common law was helpless. But equity, with its purpose of vindicating good faith
and with its remedies of injunction and specific performance, could deal with the situation. The Statute of Frauds did
not make such contracts void but merely unenforceable; and, if the statute was to be relied on as a defence, it had to
be specifically pleaded. Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by
while the other party acted to his detriment in performance of his own contractual obligations, the first party would be
precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable,
from performance of his reciprocal obligations; and the court would, if required, decree specific performance of the
contract. Equity would not, as it was put, allow the Statute of Frauds ‘to be used as an engine of fraud’. This became
known as the doctrine of part performance—the ‘part’ performance being that of the party who had, to the knowledge
of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of

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them) under the otherwise unenforceable contract. This competing principle has also received statutory recognition, as
regards contracts affecting interests in land, in s 40(2) of the Law of Property Act 1925.
But what was in origin a rule of substantive law designed to vindicate conscientious dealing seems to have come in
time sometimes to have been considered somewhat as a rule of evidence. It is easy to appreciate how this happened.
Part performance could be viewed as a way of proving an agreement falling within s 4 not withstanding the absence of
writing. Seen as such it was no doubt considered necessary to frame stringent requirements to prevent the doctrine
from carting a sedan chair through the provision of the statute. If part performance was to be evidence of a contract
which could not otherwise and directly be proved, the acts of part performance should themselves intrinsically be
capable of proving some such contract as that alleged. Oral evidence was not admissible to connect them with the
alleged contract: otherwise, it was held, the statutory object would be defeated by allowing an interest in land to pass
on mere oral testimony. As the Earl of Selborne LC put it in Maddison v Alderson45 (in a passage I label ‘(A)’ for ease
of reference later):

(A) “The doctrine … has been confined … within limits intended to prevent a recurrence of the mischief which the
statute was passed to suppress … All the authorities shew that the acts relied upon as part performance must be
unequivocally, and in their own nature, referable to some agreement as that alleged … ’

It may be questionable whether it was direct respect for the statute which led to such confinement of the doctrine, or
whether it was not rather because part performance seems sometimes to have been regarded as an alternative way of
proving an oral agreement; for equity allowed a person to prove by parol evidence that land conveyed to another was
so conveyed on trust for himself, notwithstanding s 7 of the Statute of Frauds: Rochefoucauld v Boustead ([1897] 1
Ch 196 at 206); Bannister v Bannister ([1948] 2 All ER 133 at 136)—the passages show that here, too, the guiding rule
was that the court would not allow the statute to be used as a cloak for fraud. However that may be, the speech of the
Earl of Selborne LC has always been regarded as authoritative, notwithstanding that what he said about part
performance was, strictly, obiter.
But Lord Selborne LC went on to effect a complete reconciliation between the provisions of the statute and the doctrine
of part performance in a passage ((1883) 8 App Cas at 475, 476) which is of crucial importance to the instant appeal,
and which I have labelled ‘(B)’:

(B) ‘In a suit founded on such part performance, the defendant is really “charged” upon the equities resulting from the
acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such
equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would
follow … All the acts done must be referred to the actual contract, which is the measure and test of their legal and
equitable character and consequences … The matter has advanced beyond the stage of contract; and the equities
which arise out of the stage which it has reached cannot be administered unless the contract is regarded. The choice
is between undoing what has been done (which is not always possible or, if possible, just) and completing what has
been left undone … it is not arbitrary or unreasonable to hold that when the statute says that no action is to be brought
to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the
contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the
contract. So long as the connection of those res gestae with the alleged contract does not depend upon the mere
parol testimony, but is reasonably to be inferred from the res gestae themselves, justice seems to require some such
limitation of the scope of the statute … ’

The following questions arise for determination in relation to the facts of the instant case: (1) what is meant by res
gestae in passage (B)? Are they different from acts of part performance of the alleged contract? If so, do they impose
some limitation—eg contemporaneity? Or are they words of extension—permitting, for example, evidence of
explanatory acts antecedent to the alleged contract (such as the correspondence between the solicitors in the instant
case)? (2) In passage (A) Lord Selborne LC says ‘referable to some such agreement as that alleged’: in passage (B),
‘referred to the actual contract’. Is there a discrepancy here? What must be the relationship between the acts of part
performance and/or the res gestae (if there is a distinction), on the one hand, and the alleged contract, on the other, in
order to raise an equity precluding the other party from relying on the statute? (3) Must the alleged (acts) of part
performance indicate specifically the term of the alleged contract to which the statute is pleaded as a defence (eg the
term relating to the disposition of an interest in land), or is it sufficient that the alleged (acts) indicate some contract? (4)
What does ‘unequivocally’ in passage (A) mean in this connection? What is the standard of proof required? (5) What

45
(1883) 8 App Cas 467 at 478, 479.

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does ‘of their own nature’ in passage (A) mean? Must each act of alleged part performance ‘of its own nature’ be
separately referable to the alleged, or ‘some such’, contract, or can they be regarded cumulatively—reinforcing each
other, so to speak? (6) For what purpose, if at all, is oral evidence admissible? (7) Can payment of a sum of money
ever be a relevant act of part performance? (8) What issues arise at the trial and how are they to be resolved?
These questions to some extent overlap. I do not think that it is possible to reconcile all the authorities and dicta.
There seems to be an uneasy oscillation between regarding the doctrine as a principle vindicating conscientious
dealing and as a rule of evidence. Concurrently with this, and reinforcing the latter view, there seems to have been a
hardening of equity’s arteries, an increasing technicality until quite recent times. The chancellor’s foot evolves into the
vice-chancellor’s footrule.

(1) Res gestae (ie things done). The concept is more familiar in the law of evidence, where it relates to the
admissibility of acts, declarations and incidents which either are constituents of, or accompany and explain, the fact or
transaction in question (see Phipson on Evidence). Lord Selborne LC probably had two reasons for using the words in
preference to ‘acts of part performance of the alleged contract’: (i) they are sometimes used in the law of evidence to
mark the distinction between the principal fact or transaction in question, on the one hand (as to which evidence is
always admissible), and ancillary facts, on the other (as to which evidence is only admissible if they are so closely
connected with the principal fact as either to form one continuous transaction with it or to be necessary to give meaning
to it): Lord Selborne LC was emphasising that what gave rise to the equity was, not the contract itself, but what was
done ancillary to it; (ii) one rationale for the res gestae rule of evidence is that the probability of an occurrence may
often be tested by considering its attendant circumstances (Dysart Peerage Case): so here, once it was considered
incumbent to do equity without undermining the statute, it was reasonable to look for attendant circumstances which
inherently rendered it probable that there had been an antecedent contract the obligations of which it would be
inequitable to allow a party to escape. But I do not think that Lord Selborne LC intended to import generally the rules
of the law of evidence relating to res gestae. Those rules often extend to admitting acts and declarations antecedent to
the principal fact where they either form one continuous transaction with it or are necessary to explain it. But an act or
declaration antecedent to a contract cannot be part performance of it; and it was the doctrine part of part performance
which Lord Selborne LC was concerned with. He speaks ((1883) 8 App Cas at 476) of ‘res gestae subsequent to and
arising out of the contract’. I do not think, therefore, that the correspondence between the solicitors before 2nd March
1972 can avail the husband in obviating the plea of s 40(1) (though it is available to aid him in establishing the alleged
agreement of 2nd March 1972, once the plea of the statute is obviated). Then there is authority that acts preparatory,
not merely to the contract, but to the performance of a term of the contract (such as compiling an abstract of title or
making a valuation) are not sufficient acts of part performance: but these certainly would seem to be res gestae
pursuant to the contract involving detriment to the plaintiff. Did the preparation of the conveyance on behalf of the
husband in the instant case stand alone, it might be necessary to give consideration to this line of authority: however,
on the view I take of other matters it is not called for. Again, I do not think that Lord Selborne LC’s description of acts
of part performance as res gestae under the contract imports from the law of evidence into this branch of the law the
requirement of substantial contemporaneity: equity’s doctrine of laches and the requirement of referability provide
superior and less technical safeguards against injustice. On the other hand, the fact that Lord Selborne LC used the
term res gestae throws some light on the admissibility of oral testimony in this branch of the law, since in the law of
evidence the doctrine of res gestae is very largely concerned with the question of admissibility of oral declarations.
(2) ‘Some such agreement’/‘the actual agreement’. I think that the discrepancy in expression foreshadows Upjohn LJ’s
formulation of the rule—the acts must be such as ‘prove the existence of some contract, and are consistent with the
contract alleged’ (Kingswood Estate Co Ltd v Anderson ([1962] 3 All ER at 604, [1963] 2 QB at 189) , citing Fry on
Specific Performance; see also Wakeham v Mackenzie ([1968] 2 All ER 783 at 786, 787, [1968] 1 WLR 1175 at 1180)).
Alternatively, Lord Selborne LC might have been drawing a distinction between the stage of part performance giving
rise to equities in favour of the plaintiff which preclude the defendant from pleading the statute, and the next state
where the plaintiff may lead evidence of the oral contract with sufficient particularity that equity will enforce it. Both
must now be accepted as valid ways of considering the rule.
The law here is not logical: it represents the compromise of the two principles to which I referred near the outset of this
speech. If the contract alleged is such that it ought not to depend on oral testimony, it is this contract, not merely some
contract, that the acts should prove. If the plaintiff has so performed his obligations under the contract that it would be
unconscionable for the defendant to plead the statute, it is immaterial whether or not the plaintiff’s acts prove the
contract—let alone some other contract. But it is the sort of illogical compromise, doing some deference to each of two
competing and inconsistent principles, in which English law abounds. There is no reason to disturb it so long as it does
substantial justice, as it seems to have done in all the recent reported cases. However, I have already ventured to

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point out that equity did not find it necessary to create the same difficulties as regards s 7 of the statute—
unembarrassed by a long line of authority, it took the direct route to oral evidence.
But the law as stated by Upjohn LJ is juridically justifiable. If the plaintiff proves that he carried out acts in part
performance of some contract to which the defendant was a party while the latter stood by, it becomes inequitable that
the latter should be allowed to plead, in exoneration of reciprocal obligations, that any such contract was unenforceable
by reason of the statute—particularly when it is borne in mind that few acts of performance point exclusively to a
particular contract, least of all a particular multi-term contract. But ‘some such contract’ must be a contract with the
defendant—otherwise no equity arises against him to preclude his pleading the statute.
(3) Must the act of part performance indicate that term of the contract which concerns the disposition of an interest in
land? This question has often been answered in the affirmative. Snell’s Principles of Equity for example states: ‘…
the acts must indicate the land concerned’. But where, as so often, the only term to be performed by the defendant is
the transfer of the interest in land, the fulfilment of the other conditions stipulated by equity will generally involve that
the effective act of part performance indicates the land concerned. The Earl of Selborne LC’s ‘referable to some such
agreement as that alleged’ is not so specific; and it has now, in any event, received Upjohn LJ’s gloss. In Wakeham v
Mackenzie a woman agreed to surrender her rent-restricted flat and keep house for an elderly widower in consideration
of his oral promise to leave her his house by will: her action was held to be sufficient part performance to make the
widower’s oral promise binding on his personal representative. The case must be compared with Maddison v
Alderson, where the only material distinction was that woman had no house of her own to give up. This distinction
might be sufficient to justify the inference in the later case that the housekeeper’s actions implied a quid pro quo, a
bargain, which had not been a justifiable inference in the earlier case (see Lord Blackburn in Maddison v Alderson (8
App Cas at 487)); but they could hardly be said to have indicated a bargain a term of which related to the widower’s
house.

It is unnecessary to determine the point in the instant case. The husband’s acts of part performance included two
which specifically indicated the land in question: (1) procuring his solicitor to inform the justices of the entire bargain
and to invite them to implement such of its terms as concerned them; (ii) procuring his solicitor to carry out the
obligation which, under the bargain, the husband had assumed of drafting the conveyance and sending it to the wife
(see Williams on Title)—this was the performance of an obligation arising from the contract, not preparation for
performance.
Other acts of part performance by the husband proved that there had been some contract with the wife, though without
specifically indicating those terms which concerned the house. The consent to the justices’ orders and the payment of
£100 are, in my view, only reasonably intelligible on the hypothesis that the issues raised by the cross-summonses in
the magistrates’ court had been settled by agreement. As for the other limb of Upjohn LJ’s formulation of the rule, the
husband’s acts were consistent with the contract alleged by him.
(4) ‘Unequivocally’. This could bear three meanings: (i) referable to the alleged contract and no other; (ii) clearly, on
more than a mere balance of probabilities; (iii) not equally referable to the hypothesis of a contract or some other
hypothesis, ie on the preponderance of probability.
The first view was apparently held at one time—in logical consistency with the principle that the doctrine of part
performance should not be allowed to undermine the statutory insistence that the contract must not be proved by oral
testimony. It would seem, indeed, to be a reflection of the tendency to regard the doctrine of part performance as a
rule of evidence. But it must often have led to a failure of justice, to equity helplessly standing by while the statute was
used as an engine of fraud; since, as Snell puts it ‘Few acts of part performance are so eloquent as to point to one
particular contract alone’. This idea is therefore now to be regarded as ‘long exploded’, to use Upjohn LJ’s expression
in Kingswood Estate Co Ltd v Anderson ([1962] 3 All ER at 604, [1963] 2 QB at 189).
As for the second view, there would be nothing unique in equity requiring that the act of part performance should
indicate beyond doubt that it was in pursuance of a contractual obligation. For example, for rectification, there must be
‘strong irrefragable evidence’ of mistake (Countess of Shelburne v Earl of Inchiquin ((1784) 1 Bro CC 338 at 341)): it
must ‘leave no fair and reasonable doubt upon the mind’ (Fowler v Fowler ((1859) 4 De G & J 250 at 265)) ; there must
be ‘convincing proof’ (Joscelyne v Nissen ([1970] 1 All ER 1213 at 1222, [1970] 2 QB 86 at 98)). A similar standard is
probably required to establish a secret trust (Ottaway v Norman ([1971] 3 All ER 1325 at 1332, [1972] Ch 698 at 712)) .
Or that persons who have lived together purporting to be husband and wife were not married, especially if there had
been some ceremony (Morris v Davies; Piers v Piers; Hill v Hill). Or to prove the abandonment of a domicile of origin
(Winans v Attorney General).
Nevertheless, the general standard of proof in civil proceedings is proof on a balance of probabilities. In some of the
situations referred to in the preceding paragraph justice may call for a higher standard of proof; but I can see no reason
why it should here—though no doubt, here as elsewhere, the evidence (and the nexus) will be more jealously

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scrutinised where the other party to the alleged contract is deceased. In 1000 passage (B) ((1883) 8 App Cas at 475,
476) the Earl of Selborne LC used the words ‘reasonably to be inferred’. In Wakeham v Mackenzie the alleged acts of
part performance can only on a balance of probability have been more likely to have been in pursuance of some
contract than otherwise. I am therefore of opinion not only that facts relied on to prove acts of part performance must
be established merely on a balance of probability, but that it is sufficient if it be shown that it was more likely than not
that those acts were in performance of some contract to which the defendant was a party.
(5) ‘Of their own nature’. This means merely that oral testimony is not admissible to show that the acts relied on were
in part performance of a contract: the acts must themselves on a balance of probability indicate this. But it does not
mean that each act must be considered seriatim by itself. The acts may throw light on each other; and there is no
reason to exclude light. In the instant case, for example, the payment of £100 would, standing by itself, have been
equivocal: it would not even marginally have been more suggestive of performance of a contractual term than
otherwise. But taken together with the other acts and forbearances of the husband in relation to the summary
matrimonial proceedings it becomes strongly indicative of a bargain. So, too, the preparation of the draft conveyance
when taken together with the statements made to the justices—provided that the latter were admissible in evidence.
(6) Oral evidence. The extent of the exclusionary rule is to preclude oral evidence to establish that the acts relied on
were in part performance of a contract; in other words, the nexus between the acts and the alleged contract, or some
such, cannot be established by oral testimony at the trial. But the acts themselves may be, and generally are, proved
orally. Moreover, spoken words may themselves be part performance of a contract.

‘Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant
fact, a witness may give evidence that they were spoken.’

(Lord Wilberforce in Ratten v Reginam ([1971] 3 All ER 801 at 805, [1972] AC 378 at 387) , in relation to the evidentiary
rule of res gestae). As such they are to be considered as of the nature of real evidence (see Lord Normand in Teper v
Reginam ([1952] 2 All ER 447 at 449, 450, [1952] AC 480 at 487)). So, in the instant case, the bargain between the
parties necessitated the justices being informed of what had been agreed, as a preliminary to the invitation to them to
implement part of the agreement. The statement to the justices was part performance of the bargain, including those
terms adverse to the husband; and oral evidence is admissible as to what was said to them. But ‘human utterance is
both a fact and a means of communication’ (Lord Normand in Teper v Reginam ([1952] 2 All ER at 449, [1952] AC at
486)). When it comes to determining whether acts of part performance of their own nature indicate the contract
alleged, or some such, words inevitably speak more specifically than deeds; but that is no reason for excluding them
either as facts or as means of communication. The statement to the justices as an act of part performance indicated in
terms that there had been an agreement between the parties and what were its provisions. Moreover, the ensuing
actions of the husband (in inviting the order of the justices, instructing his solicitor to prepare the conveyance, and
paying the £100) must be viewed in the light of the statement to the justices—they were integral res gestae in every
sense of that expression.
(7) Payment of money. It has sometimes been said that payment of money can never be a sufficient act of part
performance to raise the required equity in favour of the plaintiff—or, more narrowly, that payment of part or even the
whole of the purchase price for an interest in land is not a sufficient act of part performance. But neither of the
reasons put forward for the rule justifies it as framed so absolutely. The first was that a plaintiff seeking to enforce an
oral agreement to which the statute relates needs the aid of equity; and equity would not lend its aid if there was an
adequate remedy at law. It was argued that a payment could be recovered at law, so there was no call for the
intervention of equity. But the payee might not be able to repay the money (he might have gone bankrupt), or the land
might have a particular significance for the plaintiff (cf the equitable order for specific delivery of a chattel of particular
value to the owner: Duke of Somerset v Cookson) , or it might have greatly risen in value since the payment, or money
may have lost some of its value. So it was sought to justify the rule, alternatively, on the ground that payment of
money is always an equivocal act: it need not imply a pre-existing contract, but is equally consistent with many other
hypotheses. This may be so in many cases, but it is not so in all cases. Oral testimony may not be given to connect
the payment with a contract; but circumstances established by admissible evidence (other acts of part performance, for
example) may make a nexus with a contract the probable hypothesis. In the instant case, for example, what was said
(ie done) in the magistrates’ court in part performance of the agreement makes it plain that the payment of the £100
was also in part performance of the agreement and not a spontaneous act of generosity or discharge of a legal
obligation or attributable to any other hypothesis.
(8) The issues at the trial. A plaintiff alleges an oral agreement. If the defendant does not plead the statute, the
plaintiff may prove the agreement by any relevant evidence, including oral testimony. But if the defendant does plead
the statute, the plaintiff is barred unless he can establish that the defendant’s plea of the statute should not be admitted

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because its maintenance would be unconscionable. To do this the plaintiff has to prove that: (i) on balance of
probability he acted to his detriment; (ii) it was more probable than not he so acted because he was contractually
obliged to the defendant to do so; (iii) such actions were consistent with the oral agreement which he alleges. As
regards (i), the plaintiff’s detrimental actions can include words; and he can prove them by any relevant evidence,
including oral testimony. But he cannot lead oral or any testimony (other than a written confession by the defendant
which satisfies the requirements of the statute) as to (ii) and (iii); the facts proved under (i) must themselves answer (ii)
and (iii) in his favour. But if all three requirements are satisfied, an equity arises in his favour which precludes the
defendant from relying on the statute; and the plaintiff can then lead evidence (including oral evidence) to establish the
oral agreement on which he bases his claim for relief, as if the statute had never been pleaded. He still, of course, has
to prove such oral agreement on a balance of probability; and if the other party is dead the evidence will be rigorously
scrutinised.
In the instant case the husband proved to the satisfaction of the registrar the following acts which were to his detriment:
(i) procuring his solicitor to consent an order by the justices which placed him under a continuing legal obligation; (ii)
procuring his solicitor to forbear from seeking from the justices orders which might have been more advantageous to
himself; (iii) paying £100 to the wife before 30 March 1972; (iv) procuring his solicitor to draft a conveyance for
execution by the wife. Even if, contrary to my view, these matters could be considered in isolation from the statements
inviting the justices to play their part in implementing them, they still, in my opinion, make it more probable than not that
the husband acted as he did because he had contracted with the wife to do so; and they are consistent with the
agreement which the husband alleges. This makes it inequitable for the wife to allege that the agreement was
unenforceable because the formalities required by s 40(1) were not complied with. The registrar, therefore, rightly
admitted oral and affidavit evidence to establish the agreement alleged by the husband, which he found proved.
I would therefore dismiss the appeal.

(d) Act of Part Performance – payment of deposit – act of part performance must be referable to the contract or
transaction.

Mpashi v Avondale Housing Project Limited SCZ/12/1992 (unreported) (SC)

[The factsof the case appear from the judgment of the Supreme Court which was delivered by
Chaila J.S]
The appellant's case was that she was offered a house known as Sub-division 942/A/378a Avondale in Lusaka by the
respondent at the price K125, 000. The offer was made in writing to her. She accepted the offer, paid the sum of K15,
000 on 14th August, 1986, and paid a further sum of K10, 000 on 14th January 1987. After she had made those
payments the respondent's advocate Messrs Chaane and Company drew up a contract of sale which was sent to her
advocates for engrossment. Her advocates sent back the contract on 11th May, 1986. Later her advocates made
enquiries as to whether the contract of sale or assignment had been concluded. She then received a letter from, the
consultants of the respondent company indicating that the respondent was going to breach the contract. On 12 th
October, 1987 the respondent company made a fresh offer which the appellant rejected because the earlier offer was
still valid. The negotiations broke down and the appellant took out a summons on a specially endorsed writ

The learned commissioner heard the matter and took the affidavit evidence and the documents into account and came
to the conclusion that the payment of the deposit of K25, 000 did not constitute part performance and that the appellant
was not entitled to an order for specific performance of the contract. The learned commissioner dismissed the action
and ordered that the deposit of K25, 000 plus interest at the ruling bank rate be refunded to the appellant.

Mr. Mabutwe counsel for the appellant submitted two grounds. The first ground is that the learned trial commissioner
erred in law and in fact in holding that the negotiations for contract had not been completed and that, therefore, there
was no contract. Mr. Mabutwe has argued that there was a valid contract. He has argued that it is trite law of contract
that there must be an offer and acceptance. There was an offer made and the offer was duly accepted. He has argued
that the letter of offer sent to the appellant had a clause which read “subject to Contract". To him that meant once the
appellant had appended her signature then there was a valid contract. He has argued that there was no need for both
parties to sign the form of contract. He has maintained that the respondents had already committed themselves. He
has maintained that it was an accepted fact and the matter was not in dispute that the appellant had signed the
contract and in the circumstances of this particular case the contract was unilateral. Mr. Mabutwe has further argued

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that once the appellant had entered into the contract she was put later at disadvantage when the respondent increased
the price. The increasing of the price put her out of means to purchase the house. Mr. Mabutwe has argued that if the
court agreed with his argument that there was a valid contract then the appellant has been greatly prejudiced by the
turn of the events. He urged the court that the property be sold at a reasonable price. Before Mr. Mabutwe, completed
his argument Mr. Mundashi, counsel for the respondent informed the court that after the High Court ruling, the house
was offered to the appellant at a higher price. The house was subsequently sold. The respondent offered a refund to
the appellant but the appellant refused. Mr. Mabutwe replied that money was not accepted since the case was still
pending before the court. The other ground of appeal is that the learned trial commissioner found as a fact that the
appellant paid a total sum of K25, 000 and which sum was duly accepted by the respondent but the learned trial
commissioner refused to order for specific performance to which the appellant was still entitled. The learned counsel,
on part performance in his heads of argument, has argued that previously it was thought that mere payment of money
could never be an act of part performance. But, however, there is no such general rule it all depends upon the
circumstances obtaining in a given situation. He has argued that the circumstances of this case the facts warrant a
specific performance decree to be granted by the court. Mr. Mundashi, counsel for the respondent had filed two heads
of arguments.

(1) The learned trial commissioner did not err when he ruled that there was no binding sale as the earlier agreement
postponed the incidence of a binding contract by stating that that agreement was "subject to contract. c. f. Cheshire
and Fifoot’s Law of Contract, 10th Edition page 34.

(2) The mere payment of a deposit of K25,000.00 did not constitute part performance so as to make a clear inference
of an intention to be bound such as if after payment of the deposit the plaintiff was let into possession of the premises
c.f. Delaney vs Smith (1946) 2 All E.R. at page 23.

Mr. Mundashi has argued that there was no valid contract concluded between the parties as understood by law of
contract and sale of land. He has argued that the letter which was sent to the appellant did not amount to an
irrevocable offer. He later spoke of "subject to contract”. He has referred the court to Cheshire and Fifoot's Law of
Contract 10th Edition page 34. He has argued that the letter in question could not be construed as creating an
irrevocable offer because of the words "subject to contract”. Mr. Mundashi has further argued that there was no
evidence in court below and that the appellant was the only person to sign on payment of K25,000.00 Mr. Mundashi
has argued that there was no sufficient act to attract specific performance. The appellant was not given possession of
the house in issue. 'The house had been sold. The sale took place before the appeal was lodged. Mr. Mundashi had
further submitted that if the court decided there was a contract which had been breached then the court should
consider damages would be, in his opinion the difference of the value in 1987 and value at the time the appeal was
argued on 15th August ,1991.Counsel for the appellant has referred to various authorities, these are:

(1) Mobil oil (Zambia) Limited v Loto Petroleum Distributors Limited (1977)ZRL 336
(2) Mufalo v Nganga SCZ Judgement No. 24 of 1988
(3) Steadman v Steadman (1975) 2 ALL ER 1974
(4) Order 66 Rule I of the Rules of the Supreme Court.
(5) The Land (conversion of Titles) Act
(6) The Statutes of Frauds 1677

In the case of Mobil Oil (Zambia) Limited v Loto Petroleum Distributors Limited, 46 a High Court case, the court was
concerned with interpreting a draft agreement and the defendant's counter-claim for specific performance of the
agreement. The court held, after going through various authorities:

(1) The plaintiff by inserting its name twice in the final draft agreement had sufficiently signed the agreement within the
meaning of section 4 of the Statute of Frauds and the agreement was enforceable.

(2)The court must investigate the circumstances to see whether the document came into being as a perfect agreement,
and if the court on the evidence finds that it did, then the court is not prevented from so holding by any impediment of
law.

46
(1977) ZR 336.

184
(3) A Court will not grant a decree for specific performance of a contract if the party seeking the decree can obtain, a
sufficient remedy by a judgment for damages and such a decree not to be made when it would be impracticable to
secure compliance with it. The High Court judge opted for granting damages instead of specific performance.

In the case of Steadman referred to above the court held:

(1) That the alleged acts of part performance had to be considered in their surrounding circumstances and if they
pointed on a balance of probabilities to some contract between the parties and either showed the nature of or were
consistent with the oral agreement alleged then there was sufficient part performance of the agreement for the purpose
of section 40 (2) of the Law of property Act 1925.

(2) It was further held in the same case that the act of part performance did not have to be referable to that part of
the agreement for the disposition of an interest in land and that there is no general rule that the payment of
money cannot constitute an act of part performance of a parole contract within the meaning of section 40 of
the Law of Property Act.

Mr. Mundashi counsel for the respondent in his heads of argument has relied on two authorities. The first authority is
Cheshire and Fifoot's Law of Contract. 10th Edition page 34 . The second authority is the case of Delaney v Smith
(T.P.) Ltd in which the facts were that the appellants were the owners of a damaged dwelling house which was being
repaired. In April, 1944, an oral agreement was entered into between the respondent and the appellants agent,
whereby the respondent was to become tenant of the house when ready for occupation, at a weekly rental two
installments of which were payable in advance. The repairs were affected and the house was ready for occupation by
the second week in December 1944. Meanwhile, however, the appellants had decided to sell the estate on which the
house was situated and so informed the respondent by the letter dated December 4, 1944.The respondent obtained a
key of the house, and on December 11, 1944, entered into possession of the premises. On December 20, 1944, the
appellants forcibly ejected the respondent and his effects. In an action for damages for trespass the respondent
alleged that he was the tenant of the house and as such protected by the Rent Restrictions Acts. The appellants
pleaded, inter alia, that there was no note or memorandum in reference to the alleged tenancy as required by the Law
of Property Act, 1925, s. 40. The County court judge notwithstanding the absence of any memorandum in writing to
satisfy the section and the inapplicability of the doctrine of part performance found in favor of the respondent. The
grounds upon which the judge so found were that the appellants had to justify the eviction of the respondent; that in
their attempt at Justification, they were frustrated by proof of the agreement; and that the respondent, being in
possession, relied on the agreement not as a cause of action, but to defeat the plea that the trespass was justified: -
Then it was held although the respondent's possession was sufficient to support an action against a wrongdoer, it was
not sufficient as against the lawful owner; the respondent was bound to rely on the agreement for a tenancy not merely
to defeat the plea that the trespass was justified, but as an essential part of his cause of action and there being no
sufficient memorandum in writing: the Law of Property Act, s. 40, was answer to his claim.

The learned authors i.e. 'Cheshire and Fifoot in their textbook on the law of contract put it as follows:
A conditional assent to an offer does not constitute acceptance. A man who though content with
the general details of a proposed transaction, feels that he requires expert guidance before
committing himself to a binding obligation, often makes his acceptance conditional on the advice of
some third party, such as a solicitor.
The result is that neither party is subject to an obligation. A common example of this is everyday
life occurrence in the case of a purchase or a lease of land. Here it is almost an invariable practice
to incorporate the terms, after they have been settled in a signed document which contains some
such incantation as "subject to contract," or "subject to a formal contract to be drawn up by our
solicitors.” Unless there is cogent evidence of a contrary intention, the courts construe these words
so as to postpone the incidence of liability until a formal document has been drafted and signed.
As regards enforceability the document is not worth the paper it is written on. It is merely an
agreement to enter into a contract- a transaction which is a legal nullity – it may be disregarded by
either party with impunity. In the case of Barnca v Cobarro, the court was presented with a delicate
question of construction.
A vendor agreed to sell the lease and goodwill of a mushroom farm on the terms of a written
document which was declared to be “a provisional agreement until a fully legalized agreement,
drawn up by a solicitor and embodying all the conditions herewith stated, is signed.”

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 The court of appeal held that, by using the word “provisional” the parties had intended the
document to be an agreement binding from the outset though subsequently to be replaced by a
more formal contract. Had they used the word “tentative” and not “provisional” or had they
repeated the hallowed formula “subject to contract.” They would have indicated their intention not
to be bound until the completion of a later document. It is therefore in each case a question of
construction whether or not the parties intended to undertake immediate obligations, or whether
they were suspending all liability until the conclusion of formalities. Have they in other words made
the operation of their contract conditional upon the execution of a further document, in which case
these obligations will be suspended, or have they made an immediate binding agreement, though
one which is later to be merged into a more contract?

Upon the particular phrase “subject to contract” the pressure of litigation has stamped a precise significance. In other
cases it is often difficult to decide if the language used justified the inference of a complete and final agreement. The
task of the court is to extract the intention of the parties both from the terms of their correspondence and from the
circumstances which surround and follow it and the question of interpretation may thus be stated.”
In relying on this authority Mr.Mundashi has argued that the learned trial commissioner did not err when he ruled that
there was no binding contract of sale as the earlier agreement postponed the incidence of a binding contract by stating
that the agreement was “subject to contract.” It was common cause that the appellant was offered the house in
question and the appellant accepted the offer which was however made subject to contract. The appellant made two
payments of deposit but before the contract of sale was drawn up for signature by both parties, the respondent
informed the appellant that the price had changed. The appellant refused to accept the new price and she insisted on
the old price. The parties never exchanged the necessary contract and the contract was never signed. Mr. Mabutwe
has argued that the facts reveal a unilateral contract which meant that once the appellant had signed, then -the
authority existed which bound both parties.

We have considered the authorities and arguments of both parties. The facts clearly show that the contract was drawn
up but the vendors declined to sign on the ground that allegedly the property had been offered at a price which was
less than the cost of construction, and they were unwilling to sell the property at such a price. It is common cause that
the deposit was paid to the vendors and such deposit was referable to one particular transaction, There is no doubt
that there was no written contract between the two parties, but there remains only an oral contract which could only be
enforced through part performance. The decision in Steadman's case shows -that there is no general rule that payment
of money cannot be part performance but this payment must be referable to one transaction. The purchaser in this
case said the deposit was in respect of the house which had been offered to her. The deposit therefore referred only to
one particular transaction i.e. the purchase of the house in Avondale. The payment of the deposit in this case was
clearly referable only to one transaction; such payment therefore amounted to part performance of the contract and is
an exception to the rule requiring a memorandum in writing. There is consequently an equitable right for specific
performance. But in this particular case there was a mistake made by the vendor and of offering initial1y a lower price.
We consider that it would be unfair to bind the vendor to the price to which it did not intend to agree. It is a fact that the
house prices have been affected by considerable inflation and we are informed that the house has been sold to
another purchaser for the sum in excess of one million kwacha.

In view of our finding in this case we feel that it would be fair for the parties to share equally the profit resulting from the
sale. The appeal is allowed and we order that the respondent shall make a refund to the appellant the deposit of
K25, 000 plus interest at the ruling bank rate together with half the difference between the cost of construction of the
house and the price realized on its sale. In default of agreement between the parties we direct that the sum payable
shall be assessed by the registrar of the high court. There will be no order as to costs of this appeal and in the court
below. Costs of any assessment proceedings will be at the discretion of the registrar.

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(e) Doctrine of Part Performance- Equitable remedy subject to equitable principles - Specific Performance of
Oral Contract for sale of land.

Konidaris V Dandiker Supreme Court Appeal No. 157 of 1999 [S.C] Unreported

[The facts the case appear from the Judgment of the Supreme Court delivered by Ngulube C.J, as he then was]

For convenience, we will refer to the respondent as the plaintiff and the appellant as the defendant, which is what they
were in the action. In consolidated actions, the plaintiff sued the defendant together with the Lusaka City Council, the
Commissioner of Lands and the Attorney General in order to recover possession of Plot Number 3/Z/A/737 Vubu
Road, Lusaka and to regain and reinstate his title deeds to the plot. The plaintiff owned this property and had
constructed at one end of it a dwelling where he lived. In October 1990, the defendant approached the Plaintiff and
asked him to use part of the plot at the other end to dump and sell building Sand. The plaintiff agreed and it was
agreed the defendant would be paying K40, 000 as monthly rent. Other facts which were not agreed were resolved and
found by the learned trial judge after hearing the witnesses at the trial. The learned judge in accepting what the
defendant had alleged and rejecting the position taken by the plaintiff found as a fact that the plaintiff later agreed to
subdivide and sell the portion of the plot occupied by the defendant as soon as the defendant had put up some un
exhausted improvements as was required those days when vacant land could not be sold as such.. The learned trial
judge found as a fact that there was an oral agreement to this effect. He also found as a fact that the plaintiff must have
seen and noticed the developments taking place when the defendant put up a shop building and some offices, contrary
to his claim that the structures went up behind his back when he was temporarily out of the country. It was in evidence
that contrary to the oral agreement the plaintiff offered to reimburse the defendant the costs incurred in developing that
part of the land so that thereafter the defendant would be paying rent. This course of action was apparently not
acceptable to the defendant who had developed the land after applying for and obtaining planning permission based,
on the oral agreement that he would be sold the land once it was subdivided. The defendant decided to move
officialdom, including the Commissioner of Lands, behind the plaintiffs back. He got the land subdivided and obtained
title deeds to his portion after persuading the Commissioner of Lands to re-enter the plot.
The learned trial judge heard the evidence and even visited the site. He made a number of important findings some of
which formed the basis of the appeal. To begin with, the learned trial judge found that the defendant was more credible
than the plaintiff, hence the findings that the plaintiff was aware of the construction of buildings by the defendant and.
he must have agreed to sell part of the plot with structures to be erected by the defendant, contrary to the plaintiffs
assertions to the contrary. However the learned trial judge also held that the oral agreement for the sale of the land
was unenforceable in terms of S4 of the Statute of Frauds of 1677, for absence of any memorandum in writing signed
by the party to be charged with the transaction. He also found that the plaintiff had not parted with possession of the
land in contravention of the Land (Conversion of Titles) Act or at all so as to justify the re-entry by the Commissioner of
Lands so that such re-entry was contrary to the laid down statutory procedures and was in any case without the
requisite notice to the plaintiff.

With regard to the defendant's obtaining of a title deed after the plaintiff had, for whatever reason, repented of the oral
agreement to sell, the learned trial judge rejected the submission that the transactions behind the plaintiffs back were a
fraud on him but nonetheless considered the actions to have amounted to sharp practice. No one has tried to criticize
the learned trial judge's finding that the Commissioner of Lands acted outside the law in attempting to expropriate the
plaintiffs land without compensation, contrary to the relevant Article of the Constitution; or when he also found that the
State could not use the Lands Acquisition Act (whose procedures they did not even follow) to take land from one
person to benefit another individual. We agree that in so holding, the judge was on firm ground. In the event, the
learned trial judge nullified the re-entry, cancelled the subdivision and the certificate of Title issued to the defendant
and declared the plaintiff to be still the lawful owner of the whole of the plot. However, because the defendant had
erected the buildings under an oral agreement now held to be unenforceable, equity would intervene and accordingly
the plaintiff must pay compensation to the defendant for the buildings erected by the latter. The learned judge ordered
that the defendant would pay mesne profits and damages to the plaintiff in respect of loss of use and other losses and
that there be a set off of the amounts, due to each other. The damages for the plaintiff as well as the compensation for
the defendant in respect of the value of the buildings were ordered to be assessed by the Deputy Registrar…
Mr. Dudhia led in the argument of the second ground of appeal which related to the learned trial judge's refusal to grant
the defendant's cross prayer for specific performance of the oral agreement, for the sale of the land, relying on the
fairly elderly Statute of Frauds. It was submitted that the learned trial judge should not have relied so rigidly on the

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requirement of a written memorandum as required by the statute but that instead he should have had recourse to the
two equitable doctrines of part performance and promissory estoppel. It was argued that developing a property is an
act of part performance, citing the case of BROUGHTON -v- SNOOK47 where, acting on an oral agreement of sale, a
plaintiff incurred much expenditure on alterations and decorations to a country inn which in the circumstances of the
case were held to- be referable only to the verbal contract. It was held in that case that the expenditure in those
circumstances was an act which was sufficient to defeat the plea of the statute. Mr. Dudhia submitted that, having
found as a fact that there was an oral agreement that after the defendant developed the property it would be
subdivided and sold to him, he should have been granted specific performance under the equitable doctrine of part
performance after he had gone ahead to develop the land with the plaintiff’’s agreement. It was argued that the order
for specific performance could have directed that the price be agreed or in default it be ascertained by valuation, taking
into account the provisions by the appellant. It was common cause that bare land could not be sold those days.

Mr. Dudhia relied on a second doctrine, namely promissory estoppel which was essentially an extension of the old
estoppel in pais. He pointed out that while in the past such estoppel applied only to representations of fact and not of
intention, equity had since expanded the doctrine to cover representations of intention or promises. He cites, among
others, the case of CENTRAL LONDON PROPERTY TRUST LTD -v- HIGH TREES HOUSE LTD.48 Mr. Mudenda
countered all the submissions and arguments concerning specific performance by pointing out that this was an
equitable remedy which should not be available to anyone who comes with dirty hands. It was submitted that he who
practices sharp practice, as found by the learned trial judge, does not come with clean hands. In reply, Mr. Banda
submitted that the defendant did not engage in sharp practice as such so that his hands were not dirty.

The learned trial judge had all these issues before him and he made a finding of fact that there had been sharp
practice. The defendant was not a passive beneficiary but must have instigated all the moves to subdivide and obtain
title deeds. We do not see how the learned trial judge can be faulted in his determination. In any event, we agree with
Mr. Mudenda that it is not only fraud which makes hands dirty; even sharp practice does. Again, in invoking his own
equitable jurisdiction, the learned trial judge ordered that the plaintiff pay compensation to the defendant for the
improvements and developments carried out. We are unable to say that this did not adequately do equity to the
defendant and meet the justice of the case. In so saying equally reject the plaintiff’s submission that no compensation
should be paid, as raised by the cross appeal.

9.5 SUMMARY OF CHAPTER NINE.

A contract for sale or other disposition of land or an interest in land is

made in the same way as any other contract i.e either orally or in writing.
Although an oral contract for sale of land or disposition of any interest in
land may be valid it will be unenforceable by either party unless either the
statutory requirements of section 4 of the Statute of Frauds, 1677 or the
requirements of equity as to part performance have been satisfied. Section
4 of the Statute of Frauds requires that for a contract for the sale or other
disposition of land or an interest in land to be enforceable by action the
agreement upon which such action shall be brought or some
memorandum or note thereof shall be in writing and signed by the party
47
[1938] 1 All ER 411.
48
[1947] KB 130.

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to be charged therewith or some other person thereunto by him lawfully
authorized. The constituent parts of the section 4 have been discussed
above under section 9.1. After the passing of the Statute of Frauds, 1677 it
was realized that the Statute was being used for unconscionable dealings,
which itself was designed to remedy. The Statute became an engine of
Fraud. A party to a verbal or oral contract for sale of land or disposition
of any interest in land could disclaim liability (in spite of performance of
reciprocal terms by the other party) for his own performance on the
ground that the contract had not been reduced into writing. Common Law
offered no remedy in such a case or situation. Equity however, intervened
to deal with such unconscionable situations. “ Where, therefore, a party to a
contract unenforceable under the Statute of Frauds stood by while the other party
acted to his detriment in performance of his own contractual obligations, the first
party would be precluded by the Court of Chancery from claiming exoneration, on
the ground that the contract was unenforceable, from performance of his
reciprocal obligations; and the court would, if required, decree specific
performance of the contract. Equity would not, as it was put, allow the Statute of
Frauds ‘to be used as an engine of fraud’. This became known as the doctrine of
part performance—the ‘part’ performance being that of the party who had, to the
knowledge of the other party, acted to his detriment in carrying out irremediably
his own obligations (or some significant part of them) under the otherwise
unenforceable contract.” (Per, Lord Simon of Glaisdale in Steadman v
Steadman.)

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