Albert Zombe v Victor Mulenga and 14 Ors (2023/SID/61) [2024] ZMSUB 11 (25 January 2024)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SID/61 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN REPUBLIC OF ZAMB!Al THE JUDICIARY lt!~ L_ _ ~~t:-~ _,... MAGISTRATE CLA SS I~ P. O. BOX 420!~1. :.1!3A1..i'\l ~ ~ - ALBERT ZOMBE PLAINTIFF AND VICTOR MULENGA 1ST DEFENDANT GEOFFREY MWAPE 2ND DEFENDANT FANNY NAMPASA 3RD DEFENDANT JAMES SINYANGWE 4TH DEFENDANT HARRIET NANGAYI 5TH DEFENDANT JACKSON MUYEMBE 6TH DEFENDANT JUSTINE CHILAMO 7TH DEFENDANT EVARISTO MUSUKU 8TH DEFENDANT ACKIMS ZULU 9TH DEFENDANT DERRICK NKONDWA 10TH DEFENDANT EMMANUEL SIMPEMBA 11TH DEFENDANT NIZA MAKWAZA 12TH DEFENDANT AMOS MWASAMA 13TH DEFENDANT JOEL MUSONDA 14TH DEFENDANT PRISCA MUSONDA 15TH DEFENDANT Before: Hon. Deeleslie Mondoka J1 For the Plaintiff : Mr. S. Kandeke and Ms. J Chapinda For the 1st to the 15th Defendant : In person both of Messrs. Legal Aid Board. JUDGMENT CASES REFERRED TO: i. ii. iii. iv. v. vi. vii. viii. ix. KINGSTREET INVESTMENTS LTD V NEW BRUNSWICK5 [2007] SCC 1; [2007] 1 SCR 3; PEEL (REGIONAL MUNICIPALITY) V. CANADA, [1992] 3 S. C. R. 762; ROXBOROUGH V ROTHMANS OF PALL MALL AUSTRALIA LTD [2001] HCA 68; 208 CLR 516; SEMPRA METALS LTD V HMRC [2007] UKHL 34; [2008] 1 AC 561; DEVENISH NUTRITION LTD V SANOFI-AVENTIS SA (FRANCE) & ORS (REV 1) [2008] EWCA CIV 1086; LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. 21 OF 2020; BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50; BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6; BANDA V CHARLES LUNGU, SCZ APPEAL NO. 73/2016 (SELECTED JUDGMENT NO. 22 OF 2017); x. NEIGHBOURS CITY ESTATES LIMITED VS. MARK MUSHILI SCZ APPEAL NO. 47 OF 2013; xi. M’MEMBE AND POST NEWSPAPERS LTD (IN LIQUIDATION) V MBOOZI AND OTHERS APPEAL 7 OF 2021) [2022] ZMSC 4; J2 xii. HOUAREAU & ANOTHER V. KARUNAKARAN & OTHERS (CONSTITUTIONAL APPEAL) SCA C P03/2017 [2017] SCCA 33; xiii. BANDA V LUNGU APPEAL NO. 73 OF 2016[2017] ZMSC 60; xiv. UNION BANK ZAMBIA LIMITED V SOUTHERN PROVINCE COOPERATIVE MARKETING UNION 1995/97 ZR 207; xv. CREDIT AFRICA BANK LIMITED (IN LIQUIDATION) V JOHN DINGANI MUDENDA (2003) ZR 66; xvi. ACCESS BANK LIMITED V. OPEO ZAMBIA LIMITED APPEAL NO. 93 of 2020; xvii. MOORGATE V. TWITCHNGS (1976) QB 225; xviii. SANTLEY V WILDE (1899) CH; xix. xx. xxi. ZAMBIA STATE INSURANCE CORPORATION LIMITED VS ANTHONY MUYANA MUSUTU (1994) Z. R. 133; JOSEPH MULENGA V. THE PEOPLE SCZ APPEAL NO. 128 OF 2017; TUI UK LTD V GRIFFITHS [2023] UKSC 48; xxii. BROWNE V DUNN (1893) 6 R 67 AT 70, 76; xxiii. R v JAE [2021] QCA 287 at [45]; xxiv. LEGAL BRAIN TRUST (LBT) LIMITED V THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA APPEAL NO.4 OF 2012; xxv. FRANCINA MILNER JOAN V ANTHONY GEORGE HODGSON 2007/HK/433; xxvi. CHRISTOPHER SHAKAFUSWA AND ISAAC MWANZA V. ATTORNEY GENERAL THE ELECTORAL COMMISSION OF ZAMBIA 2018/CCZ/005 xxvii. DC BUILDERS V REES (1966) 2QB 617, AND xxviii. ANDERSON KAMBELA MAZOKA & ORS v LEVY PATRICK MWANAWASA & ORS (2005) ZR 138 (SC). STATUTE i. MONEY LENDERS ACT CAP. 398 OF THE LAWS OF ZAMBIA, AND J3 ii. LANDS AND DEEDS REGISTRY ACT CAP. 185 OF THE LAWS OF ZAMBIA OTHER MATERIALS REFERRED TO: i. ii. iii. iv. BLACK’S LAW DICTIONARY, 9TH EDITION, 2009; ALVIN, W. L. (2013). AN INTRODUCTION TO THE LAW OF UNJUST ENRICHMENT. SINGAPORE MANAGEMENT UNIVERSITY; PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010). Fin Scope. n.d. FinScope Africa: A Benchmark for Financial Access in African Countries. On Africa General and Cross-Country Reports webpage. http://www.finscope.co.za/new/pages/Initiatives/Africa-General-and- Cross-Country-Reports.aspx?randomID=065c04c5-8042-4863- a85b- 6cd1ac0c515e&linkPath=3&lID=3_5. Accessed August 2010 v. BARA (Bureau of Applied Research in Anthropology), 2010, “Baseline Study of Saving for Change in Mali: Results from the Segou Expansion Zone and Existing SfC Sites,” University of Arizona, Tucson, March 2010; and vi. ALEC STONE SWEET, “CONSTITUTIONAL COURTS” IN MICHEL ROSENFELD AND ANDRAS SAJO THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW, OXFORD UNIVERSITY PRESS, 2012. INTRODUCTION [1] This Judgement emanates from a claim wherein the plaintiff adjures for restitution of: (i) 1 cow and 1 calf valued @ K11, 000.00; (ii) 6 x 50kg bags of fertilizer valued @ K4, 800.00; (iii) shop situated at Nsokolo market valued @ K30, 000.00. [2] Further, the plaintiff claimed for any other relief that that court may deem and an order for costs incidental to this suit. BACKGROUND FACTS J4 [3] With that said, hereafter is a recapitulation of the facts in support of the claim. [4] On 14th September, 2023, when the matter came up for trial, the plaintiff took the witness stand as PW1 and testified as hereunder under the aid of his advocate via an elaborate line of questions. [5] PW1 in his testimony gave the operational workings of the Musumba Savings Group (hereinafter referred to as “the group”). And in his lowdown of the facts PW1 indicated that he joined the ranks of the group in 2021. PW1 made it clear that the group lent itself to the saving; borrowing of monies at an interest. [6] PW1 indicated that his initial saving with the group was a paltry K3, 100.00 and he indicated that he made a cash payment of the herein amount in the presence of all the group members and that no document was evinced to him as proof of payment (POP). [7] PW1 intimated that he only borrowed from the group twice. Firstly, he borrowed a K3, 000.00, and he remitted K4, 000.00 on the 6th day of June, 2021, which payment was made to the treasurer in the presence of the group and that no collateral was employed in the borrowing process. Lastly, on 6th December, 2021, PW1 borrowed a K14, 000.00 in the presence of the amanuensis, treasurer, chairperson. And the usual run of things was that no documents were executed to evince that the loan was taken, nor was there collateral involved. PW1 was expected to pay back K15, 000.00 only. It was his testimony that there were no documents to evince one’s inauguration to the group. [8] PW1 further testified that on 21st December, 2021, he paid a K5, 000.00 to the treasurer, with nary a witness other than his wife, EUNICE NACHILIMA, as the treasurer was washing her clothes to which no POP was issued. J5 [9] It was testified by PW1 that the meetings were held once every month, but then the group changed the same to once weekly for reasons PW1 did not know. The group used to meet at NSOKOLO BASIC SCHOOL. Alas, even after making the payment of K5, 000.00 the group kept asking for the money. The group proceeded to claim PW1’s shares and added the same to his debt owed. [10] And according to PW1 the debt he owed the group was K8, 100.00. PW1 the testified that on 31st December, 2021 he was arrested by BOYD SICHALWE, who identified himself as a police officer and taken by the same to the savings group at NSOKOLO BASIC SCHOOL. [11] PW1 was held at the school from 16:00hrs to 22:00hrs. PW1 asked for more time from the angry group within which to clear his debt but to no avail. It was his further testimony the group asked PW1 to pay up all that PW1 owed, and PW1 indicated that he had some fertilizer. Some members of the group then in the company of PW1’s wife went and collected from PW1’s mother’s house some 6 x 50kg bags of fertilizer (3 bags of Urea and 3 bags of D-compound fertilizer), at K4, 800.00 all told. They also sold my shop, which shop is valued at a paltry K30, 000.00 even after PW1 refused to have the same sold, the same forced PW1 to sell the same at K6, 000.00. [12] The group proceeded to appropriate a pregnant cow from my parents’ place. [13] Hereinafter is a lowdown of the items that the group seized as security for debt PW1 owed the group with corresponding valued assigned herewith: i. A shop : K30, 000.00 ii. Fertilizer : K4, 800.00 iii. Cow with calf : K8, 300.00 J6 [14] PW1 contend that the total value of all that was taken by the group is K53, 900.00 and less the K15, 000.00 which he owed to the group the group owes him K38, 900.00 all told. [15] During cross-examination PW1 contended the existence of a constitution and having allowed the selling of the shop, and it was established that PW1 got his last loan of K14, 000.00 on the 6th of December, 2021. Nothing was advanced in re-examination. [16] The plaintiff called as its witness one, EUNICE NACHILIMA, PW2 herein, born in the early aughts whose account of the facts dovetailed pristinely with that of PW1, except to add that: [17] PW2 testified that it was a certain DIDUS who the savings group sold the shop to at a consideration PW2 was not privy to. [18] During cross-examination it was established that PW1 last borrowed on the 6th day of December, 2021. Nothing was advanced in re- examination. THE DEFENDANT’S CASE [19] The defendant had none but three (3) witness to render an account–– the first witness was DW1, a quadragenerian who testified as hereunder. [20] DW1 in his testimony intimated that PW1 joined the savings group in 2021 when the cycle had already commenced. DW1 informed this court that the group as at 2023, had been in existence for 6 years. DW1 made it clear to the court that the group borrowed monies at a 10 percent monthly interest. Much to DW1’s credit the same gave this court a box score of the goings vis-à-vis the borrowings of PW1 as hereunder: i. On 3rd March, 2021, PW1 shared in 15 shares, each share attracting a value of K100.00 totalling K1, 500.00 and on the same day PW1 paid back a loan of K2, 200.00 with K200.00 J7 representing the 10% interest, and did on the self-same day borrowed a K3, 900.00. ii. On 28th April, 2021, PW1 remitted interest of K390.00 being for the principal unpaid loan of K3, 900.00. iii. On 2nd June, 2021, PW1 put in 1 soft share via mobile money, which share PW1 went with making a total of his borrowings K4, 400.00; payable amount being K4, 840.00 inclusive of 10 percent. iv. On 3rd July, 2021, PW1 paid the interest portion of the K4, 840.00 being K480.00, leaving a balance of K4, 360.00 making the payable amount inclusive of 10 percent K4, 796.00. v. On 21st August, 2021, PW1 failed to pay back the K4, 796.00, but remitted a K500.00, and on the very day his borrowing increased to K5, 816.00 making his loan payable as K6, 397.60 plus 10 percent interest. vi. On 4th September, 2021, PW1 made a loan repayment of K6, 397.60 and conveniently on the same day PW1 borrowed K15, 512.60 making his loan payable as K17, 063.86 inclusive of 10 percent interest. vii. On 9th October, 2021, PW1 put in 1 share as a soft loan which amount was yet on his mobile phone. PW1’s loan of K17, 063.86 accrued a monthly interest of 10 percent making the value K18, 770.246 payable in November, 2021. [21] it was DW1’s testimony that October, 2021 was the last share buying month as 31st December, 2021 was earmarked for sharing out. And on 6th November, 2021, PW1 put in 1 share and as a consequence the loan racked up to K18, 880.246; payable K20, 768.22. [22] On 11th December, 2021, PW1 made a loan repayment of K1, 500.00 with a residual balance of K19, 268.22. On PW1’s request, the group agreed to hold a meeting on 27th December, 2021 concerning PW1’s loan, J8 which loan was whittled down to K13, 266.22 as per the aid-memoire dubbed “MSG3” wherein it was shown that the cost of the shop was not enough to liquidate the loan, and thus, PW1 committed to top up, a cow and fertilizer to settle his debt of K13, 266.00, which debt was liquidated as hereunder: i. Cost of the cow : K6, 260.00 ii. Cost of the shop pledge as collateral : K6, 000.00 iii. Cost of fertilizer Grand total : K1, 000.00 : K13, 260.00 [23] Further to, it was agreed on the same day that the defaulting parties would be sent to police or court if on the 31st day of December, 2021 they did not liquidate the loan, which document PW1 along with other persons owing signed. The document is evinced herein as “MSG4”. [24] During cross-examination it was established that at the time PW1 was joining the group the rules were applicable. PW1’s counsel challenged the legality of the savings group stating that they had not been registered under the Money Lenders Act, thus were illegally operating, along with the interest they had been charge, as he alleged the same was penal in nature, thus unconscionable. [25] Further, counsel contended that because PW1 was the least educated in the group the same was put under duress by the group. Counsel also laboured the fact that by virtue of promising the shop as collateral the same created a mortgage. In re-examination DW1 stated that the group never used to sign for monies paid. DW1 further indicated to this court that PW1 was not under duress nor was he coerced. [26] To shore up the testimony of DW1, the defendants summoned as its witness, VICTOR MULEYA, herein referred to as DW2 whose testimony was much in the manner of DW1 except to augment as hereinafter. J9 [27] It was DW2’s testimony that PW1 approached him indicating his desire to be joined to the group, however some group members expressed their concerns, but upon being aptly vetted by the group and after sedulously interrogating his line of business, PW1 was adopted as a group member. [28] Prior to inaugurating PW1 into the group, the rules and regulations of the group were read to him and PW1 unreservedly consented to the rules and being governed by the same. DW1 explained that PW1 was informed that, it was monies borrowed and not the monies put in that attracted interest. And without dawdling PW1 began borrowing monies. [29] DW2’s cross-examination by counsel was much in the manner of DW1, wherein issues of legality and coercion where contended. [30] DW2 in re-examination elucidated that––the reason why the 27th day of December, 2021 was picked for a meeting was on PW1’s account. DW2 also asserted that the buyer of the shop DIDUS paid to PW1 and the PW1 to the savings group. [31] Finally, to ally the testimony of DW1 and DW2, the defendants’ summoned DW3, whose testimony was to the effect that: i. DW3 was the box keeper and that at no time did PW1 come to her with a payment of K5, 000.00 to liquidate his loan. ii. DW3 indicated that all monies were never collected except in the presence of group members for purposes of recording. [32] During cross-examination DW3 roundly repudiated receiving a K5, 000.00 from PW1 as part payment for his loan. And that marked the close of the defendants’ case. UNDISPUTED FACTS J10 [33] Having considered the evidence herein, I find the following to be common cause: (i) that PW1 was a member of the MUSUMBA SAVINGS GROUP; (ii) that he joined the savings group in 2021; (iii) that the group never used to receipt and or evince any proof of payment whenever a payment is made. DISPUTED FACTS [34] I find that the herein facts are in dispute: (i) that PW1 made a payment of K5, 000.00 to DW3 when she was at her home; (ii) that PW1 borrowed a K14, 000.00 from the savings group; (iii) that PW1 owed the group a pittance of K8, 100.00 and not the alleged K13, 266.00 the group forcibly took from him after selling the items herein being the subject of his suit; (iv) that the savings group forcibly sold his shop, cow and fertilizer in order to liquidate the fallacious debt of K13, 266.00 owed to the group. ISSUES FOR DETERMINATION [35] The legal issues that are so fundamental and ought to be resolved are as follows: (i) firstly, what does the notion of restitution entail; (ii) secondly, whether or not there was an instrument binding the plaintiff to the savings group; (iii) thirdly, whether or not the defendant is liable to reimbursing PW1 of the selected household articles herein highlighted; (iv) and lastly, whether or not the plaintiff is entitled to the reliefs sought? ABOUT SAVINGS GROUPS [36] I will preface the herein submission with the fact that this herein issue of savings is yet novel, as there is quote––“no proper legal framework regulating the same” unquote. And to have a working understanding of the same I will make ample reference to extra-judicial excerpts for purposes of establishing a context. [37] It is undeniable that the poor need financial services for the same reasons as anyone else: to manage risk (e.g., health emergencies, crop J11 failures, etc.), build assets, invest in productive activities, manage cash flows, and smooth incomes. Savings, credit, insurance, and money transfers can help poor people do all these things, but to date such services have been largely inaccessible to the rural poor. They need a safe way to save and borrow that is convenient, flexible, and available in their villages. Traditional microfinance has not, for the most part, been able to provide such services because it is too expensive to reach into remote rural areas (although cell phone technology is showing promise). [38] If financial institutions are only available outside a village, people in villages with are unlikely to use them. Villagers tend to avoid institutions that require initial fees for membership and guarantees for their loans.1 [39] Evidence from several FinScope studies2 in Africa suggests that less than half the population has access to any form of financial services, whether formal or informal. Of the rest, those that have access to banks and MFIs are mainly found in urban and peri-urban areas, or high- density rural areas that are usually served by a functioning road infrastructure. The rural poor, as a result, are disproportionately denied access. [40] From the foregoing excerpts and the prevalent practice vis-à-vis saving groups it goes without saying that the same complement Microfinance institutions. 1 BARA (Bureau of Applied Research in Anthropology), 2010, “Baseline Study of Saving for Change in Mali: Results from the Segou Expansion Zone and Existing SfC Sites,” University of Arizona, Tucson, March 2010. 2 Fin Scope. n.d. FinScope Africa: A Benchmark for Financial Access in African Countries. On Africa General and Cross-Country Reports webpage. http://www.finscope.co.za/new/pages/Initiatives/Africa-General-and-Cross-Country- Reports.aspx?randomID=065c04c5-8042-4863- a85b-6cd1ac0c515e&linkPath=3&lID=3_5. Accessed August 2010 J12 ANALYSIS OF THE LAW AND FACTS [41] Firstly, what is restitution? Well. I will glancingly and with aid of authorities demystify the concepts hereunder: i. Restitution In BLACK’S LAW DICTIONARY, 9TH EDITION, 2009; restitution is defined as being– “a body of substantive law in which liability is based not on tort or contract but on the defendant's unjust enrichment, or simply, return or restoration of some specific thing to its rightful owner or status”. ii. Unjust enrichment Black’s Law defines unjust enrichment, as a benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense. [42] From the hereinbefore it is worth noting that the notion of ‘restitution’ deals with correcting what might be an unmitigated injustice on the part of the claimant, as can be gleaned in the claim herein by PW1 against the defendants. [43] In re KINGSTREET INVESTMENTS LTD V NEW BRUNSWICK5 [2007] SCC 1; [2007] 1 SCR 3, the Supreme Court of Canada perfectly described the nature of a restitutionary award for unjust enrichment by explaining that … “Restitution is a tool of corrective justice. When a transfer of value between two parties is normatively defective, restitution functions to correct that transfer by restoring parties to their pre- transfer positions. [44] In PEEL (REGIONAL MUNICIPALITY) V. CANADA, [1992] 3 S. C. R. 762, McLachlin J. (as she then was) neatly encapsulated this normative framework: J13 “The concept of ‘injustice’ in the context of the law of restitution harkens back to the Aristotelian notion of correcting a balance or equilibrium that had been disrupted.” (emphasis supplied) [45] From the outset I would like to observe that––the issue that PW1 herein should be seeking is restoration of a loss owing to a disruption. The plaintiff in his claim has taken the liberty of assign monetary values to what is the subject of restitution when in his claim he makes an orison for restitution as hereinafter: (i) (ii) (iii) 1 cow and 1 calf valued @ K11, 000.00; 6 x 50kg bags of fertilizer valued @ K4, 800.00; shop situated at Nsokolo market valued @ K30, 000.00. [46] In re ROXBOROUGH V ROTHMANS OF PALL MALL AUSTRALIA LTD [2001] HCA 68; 208 CLR 516 the High Court of Australia in relation to unjust enrichment observed that: “restitutionary relief, as it has developed to this point in our law, does not seek to provide compensation for loss. Instead, it operates to restore to the plaintiff what has been transferred from the plaintiff to the defendant.” (emphasis supplied) [47] It is this focus on the immediate benefit received by a defendant, and the reversal of that transferred value, which shows why a restitutionary award does not focus on actual profits. In Lord Hope’s succinct words in re SEMPRA METALS LTD V HMRC [2007] UKHL 34; [2008] 1 AC 561 the (immediate) “gain…needs to be reversed”. [48] However, as explained above, this rationale is not confined to instances of restitution of unjust enrichment. In relation to wrongdoing, Arden LJ in DEVENISH NUTRITION LTD V SANOFI-AVENTIS SA (FRANCE) & ORS (REV 1) [2008] EWCA CIV 1086 said that situations arise where: J14 “There has been a transfer of value for which the wrongdoer must account”. [49] And in the Supreme Court of New Zealand, Tipping J has also observed that this same rationale underlies restitutionary damages (which he preferred to call “restorative damages”)3: “Financial remedies designed to restore to the plaintiff the monetary value of what the plaintiff has transferred to the defendant when, in the circumstances, the law requires restoration of that value.” [50] And dealing with the herein idea, the Court of Appeal in our jurisdiction in LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. 21 OF 2020, sympathized with in re BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50., concerning the test for unjust enrichment. The said criteria comprise the following questions: (i) has the Defendant been enriched? (ii) has the enrichment at the claimant's expenses? (iii) has the enrichment been unjust? (vi) are there any defences? [51] Further in re BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6, it was stated … “that if the first three questions are answered affirmatively and the fourth negatively, the claimant will be entitled to restitution.” [52] The legal issues highlighted herein and not elucidated shall be addressed anon. DETERMINATION [53] I am saddled with the burden of making a judgement of exquisite delicacy. [54] From the facts herein distilled, it can be gleaned that counsel for the plaintiff herein in prosecuting the issue adverted to a number of issues 3 STEVENS V PREMIUM REAL ESTATE LTD [2009] NZSC 15 at [99]. J15 that will inform this determination, including: the herein issue of restitution, money lending; penal interest, mortgages, and duress. SHOULD THE SAVINGS GROUP HAVE BEEN REGISTERED AS A MONEY LENDERS & WAS THE MONTHLY INTEREST CHARGED ON THE MONIES BORROWED PENAL INTEREST? [55] Going by the preamble, the purpose of the Money Lenders Act is to make provision with respect to persons carrying on business as money lenders. Section 2 of the Money Lenders Act provides for who money lenders are, and for purposes of context, the section provides as follows: “Every person whose business is that of money-lending or who advertises or announces himself or holds himself out in any way as carrying on that business”. (emphasis supplied) [56] On the interpretation of the said provision by the Supreme Court in the case of EDMAN BANDA V CHARLES LUNGU, SCZ APPEAL NO. 73/2016 (SELECTED JUDGMENT NO. 22 OF 2017), it was held that: “... a careful and patient examination in relation to the general scheme of the Money Lenders Act would reveal that a money lender only be such if: (a) His business is that of a money lending, or (b) He advertises or announces or in any way hold himself as carrying on the business of money lending.” (emphasis supplied) [57] Counsel for the plaintiff herein argued illegality of the savings group, as the same according to counsel should have been a registered money lending group, owing to the fact that group members borrow monies from the same. With regard to the plaintiff’s argument around non-compliance with the Money Lenders Act, counsel seem to champion the idea or position taken in re NEIGHBOURS CITY ESTATES LIMITED VS. MARK MUSHILI SCZ APPEAL NO. 47 OF 2013, namely, that J16 it is illegal for anyone to carry on the business of money lending without a licence issued to them under the Money Lenders Act, which view I also support. [58] Notwithstanding, it would be remiss to take the herein position as read without so much as consider the peculiarity of the case in casu. The Supreme Court of Zambia has spoken most prodigiously on the need to consider matters on their own peculiarity. This now brings me to the danger of simplistic construction of statute, which in this case would be a miscarriage of justice. [59] Thus, it would be arrantly unjust to shoehorn savings groups into being money lenders and contrary to M’MEMBE AND POST NEWSPAPERS LTD (IN LIQUIDATION) V MBOOZI AND OTHERS APPEAL 7 OF 2021) [2022] ZMSC 4, wherein the Supreme Court of Zambia embodied the observation made by the Court of Appeal of Seychelles, in HOUAREAU & ANOTHER V. KARUNAKARAN & OTHERS (CONSTITUTIONAL APPEAL) SCA C P03/2017 [2017] SCCA 33, that: ...it is an age old and well-established principle that every court has power to act ex debito justitae [as of right] to ensure that it exists for real and substantial administration of justice. (Underlined for emphasis) [60] Further, while a saving group may have expressions that ally it to a money lenders group and that it would not be a strange reality as in this case for one to conflate it with a money lender––savings groups are not per se money lenders according to what is envisaged by the Money Lenders Act (hereinafter referred to as the Act). They are distinguishable from what money lending is all about. Savings groups as herein highlighted are more complementary to microfinance. [61] I will go out on a limb here and assert that––one cannot construe a savings group as being money lenders proper without the real risk of J17 misstating––as that is a contradiction in terms. Including savings group into the definition of money lenders bodes ill with the Act, seeing as saving groups, i.e., the Musumba Savings Group do not have for their primary object the lending of money, in the course of which and for the purposes whereof they lend money. See section 2(c) of the Money Lenders Act Cap. 398 of the Laws of Zambia. (emphasis supplied) [62] More to the point––a money lender within the meaning of Section 2 of the Money Lenders Act, in re BANDA V LUNGU APPEAL NO. 73 OF 2016[2017] ZMSC 60 to explain Section 2 of the Money Lenders Act in which case the Court held that: … “Although the use of the word ‘includes’ in the above quoted definition of money lender (section 2 of the Money Lenders Act), 'Money Lender' would seem to render the definition of the term imprecise, a careful and patient examination in relation to the general scheme of the Money Lenders Act would reveal that a money lender only be such if: (a) His business is that of money lending, or (b) He advertises or announces or in any way holds himself out as carrying on the business of money lending.” (emphasis supplied) [63] Thus, in the context of this case, there was no evidence before the court which crisply suggested, even jointly that the defendants were caught by any of the definitions or descriptions which the statute assigns to a money lender. [64] Addressing the issue of penal interest, from the reading of the facts herein and the assessment of the evidence, the issue of interest does not arise seeing as there is nothing penal about the 10 percent monthly interest that the loans in the group carry. J18 [65] Further, a reading of the law will review that when interest, i.e., compound interest is involved, the parties must consent or agree and the agreement may be either express or implied from the nature of the dealings but a mere intimation, as is the case with the group. This was the case in re UNION BANK ZAMBIA LIMITED V SOUTHERN PROVINCE COOPERATIVE MARKETING UNION 1995/97 ZR 207 However, penal interest in whatever form is forbidden by law. See also the case of CREDIT AFRICA BANK LIMITED (IN LIQUIDATION) V JOHN DINGANI MUDENDA (2003) ZR 66. [66] In any case, the courts do not have discretion to determine the interest payable where the interest is payable as of right, by virtue of an agreement. Therefore, interest may be claimed in accordance with the applicable contractual terms. [67] In view of the herein submission, it was DW2’s testimony that PW1 was made aware of the regulations and or terms and conditions that govern the group before he voluntarily acquiesced to being a member of the same. [68] And speaking on the conduct by PW1––according to Sweet, at pages 820 to 824, the plaintiff, and the 1st through to the 15th defendants are in essence: “a product of what is termed relational contracting, because they seek to broadly frame the relationships between the parties who then agree on a set of basic goals and objectives. Such goals and objectives cannot cover specific details or all eventualities. Constitutions are incomplete because meaningful uncertainty will inevitably exist. Thus, the court's existence "gives the drafters of the drafters of these herein relational contracts confidence to strike constitutional bargains ex ante" and J19 guarantees "the credibility of commitments made ex post4.” (emphasis mine) [69] Thus, owing to the foregoing, the plaintiff (PW1) is thereby estopped from reneging on his obligation now that issues have unfolded inequitably. [70] In ACCESS BANK LIMITED V. OPEO ZAMBIA LIMITED APPEAL NO. 93 of 2020, it was held that: An estoppel by conduct arises where one person induces another to adopt and act upon an assumption of fact or an assumption as to the future conduct of the representor. The basic concept of an estoppel is that where a person has caused another to act on the basis of a particular state of affairs, he/she is prevented from going back on the words or conduct which led the other person to act on that basis if certain conditions are satisfied. Lord Denning MR in the MOORGATE V. TWITCHNGS (1976) QB 225, stated that estopped is a principle of justice and of equity which provides in basis terms that; "When a man by his words or conduct has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust and inequitable for him to do so". (emphasis added) WHAT ARE MORTGAGES AND HOW SHOULD THEY BE TREATED? [71] It was argued herein by counsel for the plaintiff that owing to the shop being pledge as collateral by PW1, the same created something akin to a mortgage, and thus selling the shop as did the defendants was void, as they did not have the blessing of the court. [72] By way of information––a Mortgage is a security effected by the creation or transfer of a legal or equitable interest in property as 4 Alec Stone Sweet, "Constitutional Courts" in Michel Rosenfeld and Andras Sajo The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, 2012 J20 security for the payment of a debt or for the discharge of some other obligation. [73] To boot––a mortgage was defined by Lord Lindley in SANTLEY V WILDE (1899) CH at page 474, as a conveyance of land or an assignment of chattels as security for the payment of a debt or the discharge of some other obligation for which it is given. The security is redeemable on the payment of the debt or the discharge of some other obligation, notwithstanding any provision to the contrary. Section 65 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia has somewhat altered the common law nature of a mortgage as defined by Lord Lindley in SANTLEY V WILDE. Section 65(1) of the Act provides that a mortgage is simply to operate as a security and not a transfer or lease of the estate or interest thereby mortgaged, The Section provides that: “A mortgage of any estate or interest in land shall have effect as security and shall not operate as a transfer or lease of the estate or interest thereby mortgaged, but the mortgagee shall have and shall be deemed always to have had the same protection powers and remedies (including a power of sale, the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits or any of them and, in the case of land held in leasehold, the right to receive any notice relating to the land the subject of the mortgage which under any law or instrument the mortgagor is entitled to receive) as if the mortgage had so operated as a transfer or lease of the estate or interest mortgaged.” [74] Thus, a mortgage may be created by a demise of land, by a transfer of a chattel or by a charge on any interest in real or personal property for securing a loan or money. J21 [75] With that in mind––when it comes to mortgages it is crucial to understand and appreciate section 4 of the Lands and Deeds Act which states that: … “Every document purporting to grant, convey or transfer land or any interest in land , or to be a lease or agreement for lease or permit of occupation of land for a longer term that one year, or to create any charge upon land, whether by way of mortgage or otherwise, or which evidences the satisfaction of any mortgage or charge and all bills of sale of personal property whereof the grantor remains in apparent possession, unless already registered pursuant to the provisions of “The North Eastern Rhodesia Lands and Deed Registration Regulations, 1905” or “The North-Western Rhodesia Lands and Deeds Registry Proclamation 1910” must be registered within the times hereinafter specified in the Registry or in a District Registry if eligible for registration, in such District Registry ”(emphasis mine) [76] Therefore, without reading words into the provisions as per section 4 of the Lands and Deeds Registry Act––for an instrument to qualify as a mortgage it must be––in writing and registered with the Lands and Deeds registry. Curiously, counsel for the plaintiff hoped to parlay the argument that PW1’s shop created a mortgage into the merits of the case by arguing that the shop was a mortgaged property, notwithstanding the fact that the same was neither written nor registered according to the provision of the section in question. [77] Further, in re ZAMBIA STATE INSURANCE CORPORATION LIMITED VS ANTHONY MUYANA MUSUTU (1994) Z. R. 133, where the Supreme Court held that all words in a statute must be given effect to and none may be regarded as otiose. [78] What is more–– Section 6 of the same Act provides that: J22 “Any document required to be registered as aforesaid and not registered within the time specified in the last preceding section shall be null and void.” THE RULE OF BROWNE V DUNN AND INCONSISTENT WITNESSES [79] At this point––I would like to address the plaintiff’s version of the facts herein, seeing as from the reading of the facts and appraisal of the evidence, it became undeniable that PW1 was skating over the facts–– at least in part I must add. How did PW1 do so? Well, PW1 came the raw prawn with the court, when knowing very well conveniently indicated that he only borrowed from the group––twice! PW1 indicated that his first loan was a paltry K3, 000.00 and last was a K14, 000.00, which loan he borrowed on 6th December, 2021. [80] Alas and alack, the unassailable evidence by DW1 and the documents are that PW1 borrowed from the group multiple times and at sundry times, as can be gleaned at paragraph 20 of this judgment, whose version of the facts was unchallenged5 at that. [81] In re TUI UK LTD V GRIFFITHS [2023] UKSC 48 it was cited that Lord Herschell LC (at pp 70-71) stated his understanding of the rule: “I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it 5 JOSEPH MULENGA V. THE PEOPLE SCZ APPEAL NO. 128 OF 2017 J23 is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems Page 22 to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.” (emphasis mine) [82] The rule in Browne v Dunn is a rule of practice––thus, in any trial – civil or criminal – if a party intends to contradict the evidence of a witness – either by way of submission to the judge or jury, or by other evidence – then the party (via their barrister) is required to put the substance of the contradictory evidence to the witness during cross-examination, so that the witness might comment on it. BROWNE V DUNN (1893) 6 R 67 AT 70, 76. (emphasis supplied) [83] And as McMurdo JA put it in R v JAE [2021] QCA 287 at [45]: “The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course”. (This decision contains a thorough analysis of the rule and the consequences of its breach.) [84] Therefore, there will be non-compliance with the rule if say– i. a party fails to challenge the evidence of a witness on some point; but later ii. makes assertions, or calls evidence to show, that the witness should not be believed: The trial magistrate is then to determine what ought to be done. J24 [85] Further, according to PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010) paragraph 12 – 36 at P. 365: “The credibility of a witness depends on his knowledge of the facts, his intelligence, his interestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury. Amongst the obvious matters affecting the weight of a witnesses’ evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case inquired into either in direct examination to enhance or in cross–examination to impeach the volume of his testimony. So, all questions may be asked in cross examination which tend to expose the errors, omissions, inconsistencies, exaggerations, or improbabilities of the witnesses’ testimony”. (Emphasis added) [86] In view of the hereinbefore, let it be known that, the testimony deployed to brace the plaintiff’s case is not beyond reproach, seeing as the same––militates against the plaintiff’s claim significantly so, primarily that, the entirety of the herein claim is predicated on the testimony of PW1––alas, there is not much chop to the evidence adduced by PW1 and PW2. Not to mention the claim that the borrowing from the group only attracted a K1, 000.00 top up for all loans drawn from the group. [87] And as I ring down the curtain on this issue, I feel burdened to comment on––the submission made by counsel for the plaintiff wherein the same posits that the savings group blamelessly preyed on the plaintiff herein because he was ‘unlettered’. Counsel observed J25 this vis-à-vis the rest of the group members who evidently had a formal training. I must resolutely assert here that the argument hereinbefore adverted to by counsel for the plaintiff veers from fact. [88] The contention by counsel inhabits the mercurial realm of the abstract– which argument is to say the least not ripe for adjudication by this court and cannot therefore be considered without the court engaging in speculation or an academic exercise. Why? A perusal of the incontrovertible document adduced in evidence marked “MSG4” evinces that––PW1 was one of 9 members who had not yet paid his dues as at the 27th day of December, 2021. And that the parties involved did make undertakings including PW1 that by the 31st day of December, 2021 they would make good their dues. [89] In re LEGAL BRAIN TRUST (LBT) LIMITED V THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA APPEAL NO.4 OF 2012, wherein it is stated that: A court will not hear a case in the abstract, or one which is purely academic or speculative in nature - about which there exist no underlying facts in contention. The reason for this doctrine is to avoid the hollow and futile scenario of a court engaging its efforts in applying a specific law to a set of mere speculative facts. There must be pre-existing facts arising from a real live situation that gives rise to, for instance, a breach of contract, a tortious wrong, or other such grievance on the part of one party against another. Absent such a dispute, the resulting exercise would be but an abuse of the court's process6. (emphasis mine) [90] Further––the plaintiff herein precipitously argued that, PW1 herein was under duress when he handed over, i.e., the 6 bags of fertilizer, shop, and the cow? Permit me to state roundly here that, in casu, had the 6 CHRISTOPHER SHAKAFUSWA AND ISAAC MWANZA V. ATTORNEY GENERAL THE ELECTORAL COMMISSION OF ZAMBIA 2018/CCZ/005 J26 facts related to duress in the context of procuring a contract, the idea of duress would have been given fundamental consideration. [91] Incidentally, all matters relating to duress in contract speak of the same in the context of prior execution of contract and not post! Case in point––FRANCINA MILNER JOAN V ANTHONY GEORGE HODGSON 2007/HK/433 in which the High Court held that: The elements necessary to set aside a contract on the ground of duress are as follows; actual violence, or reasonable fear, the fear must be caused by threat of considerable evil to the party, or his family, it must be a threat of an imminent or inevitable evil, the threat or intimidation must be contra bono mores; (extent something to which one otherwise was not entitled) and the moral pressure used must have caused damage7.' [92] Thus, it is not at all a slam dunk argument to decry, however accusatory, as counsel for the plaintiff is suggesting in the herein vicinity of––the defendants’ targeted PW1 in part that––PW1 was unlettered or that the defendants did forcibly appropriate the plaintiff’s (PW1) property, whose argument I must state offends good legal taste, especially in light of the fact that there are documents, which documents have been adduced in evidence, i.e., the rules and regulations to which PW1 fully subscribed and the document marked herein as “MSG4”where PW1 long with other group members made undertakings concerning the settlement of their debt. [93] And as an aside––counsel for the plaintiff argued in the vicinity of––the police role is not civil but criminal in nature, that their advice on matters of the law, even civil actions matter should be checked. In view of counsel’s submission, I want to admonish the general public by accenting this that––the epidemic and indiscriminate harvesting of legal advice from police officers particularly on civil issues is ill-advised 7 DC BUILDERS V REES (1966) 2QB 617 J27 and ill-conceived. And while my view may be received in certain quarters as not being consummate, it is however, impeccably so in this case, as the uninitiated take the advice by the police officer on trust. [94] And to coin a phrase– “not all colourless filtrations are drinking water”– thusly, I exhort the general public to err on the side of caution, and not to naïvely repose their trust in persons purporting to give legal advice like the police in this case, as they may not have a blameless grasp of the law. [95] Furthermore, this inimical propensity for soliciting legal advice from the police by credulous member of the public, makes nonsense of the need to receive legal advice from bona fide individuals, i.e., lawyers and or legal practitioners. And I will go out on a limb and say– I do not endorse such a pernicious practice. [96] In the premises, this case when viewed in the round, it can be gleaned from the facts that the plaintiff is disingenuous in his claim, as he is essaying at circumventing his obligation on making good on his debt to the savings group, which debt he acknowledges, but has astutely qualified the same as being a paltry sum of K8, 100.00 and as a consequence, PW1 has hitherto deprived the group of its monies. [97] Thus, I much as I sympathize with the plaintiff––I cannot in good conscious acquiesce to and or order restitution in accordance with the plaintiff’s herein claim, seeing as the facts herein and the evidence deployed do not warrant PW1 being awarded the reliefs sought8. [98] In other words––the evidence adduced before this court does not make the plaintiff a fitting recipient of the relief sought, seeing as his 8 ANDERSON KAMBELA MAZOKA & ORS v LEVY PATRICK MWANAWASA & ORS (2005) ZR 138 (SC) in which the Supreme Court held inter alia that: “A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case.” J28 shifty testimony and or evidence adduced does not absolve PW1 of his liability and neither does his testimony negate the fact that the plaintiff owed the savings group money. [99] [100] This matter is dismissed and each party to bear their own costs. Either party has the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGEMENT DELIVERED AT MBALA ON 25TH JANUARY, 2024 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J29