Beatrice Mwendaofyo v Rapid Freightt International Limited and Wallet Freight- Zambia Limited (APPEAL NO. 106 OF 2022) [2024] ZMCA 84 (29 February 2024)

IN THE COURT OF APPEAL APPEAL NO. 106 OF 202~ HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ~~pUBLIC cOURT01- BEATRICE MWENDAOFYO PELLANT AND RAPID FREIGHT INTERNATIONAL LIMITED lST RESPONDENT WALLET FREIGHT- ZAMBIA LIMITED 2ND RESPONDENT CORAM: KONDOLO SC, MAJULA AND PATEL, JJA ON: 22nd and 29th February 2024 For the Appellant: Mr. C. M. Mukonka of Messrs Caristo Mukono. Legal Practitioners For the 1 st Respondent: Not in attendance For the 2 nd Respondent: Mr. J Mazumba of Messrs Douglas & Partner. JUDGMENT KONDOLO SC JA, delivered the Judgment of the Court. CASES REFERRED TO: 1. Wilson Masauso Zulu v Avondale House Project Ltd (1982) ZR Kunda v Konkola Copper Mines PLC (2011) ZR 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of Justice Mrs. Y. Chem as she then was, delivered on 24th February, 2020 under Ca, No. 2016/HN/ 116. 1.2 The Appellant was the Plaintiff in the High Court and the Respondent was the 2 nd Defendant. Throughout this Judgm<: we shall refer to the parties as they appear in the appeal. 2.0 BACKGROUND 2.1 The Appellant travelled to China for the purpose of import goods to Zambia and in so doing, she utilized the services of 1 st and 2 nd Respondents. 2.2 The Appellant raised issue with how the shipment was done. I claimed the shipment was delayed and some of her goods ~ not shipped. She further complained about being double char on some items. 2. 3 She commenced an action before the High Court seeking fallowing relief; 1. The sum of US$8,587 being the value of the Plaintiffs goods not delivered by the Respondents 3. Refund of rentals paid by the Plaintiff 4. Damages for breach of Contract 5. Interest 6. Costs 7. Any other relief the Court may grant 2.4 The Appellant filed an amended statement of claim averring t she engaged the 1 st Respondent to freight her goods from Ch and the freight charges were paid through the 2 nd Respond<:: That the Respondents were sister companies. 2.5 That despite being paid freight charges the pt Respondent fai to ship the goods in a single container within a three-month per as agreed by the parties. 2.6 That the 1st Respondent is now shipping the goods in bits ( pieces and at the time the matter came to court some of Plaintiffs goods had not been shipped. 2.7 That the goods which had been shipped to Zambia were being k by the 2 nd Respondent in a warehouse in Kitwe and the Respondent had refused to release the said goods. 2.8 That the goods imported from China were meant for resale ~ 2 . 9 2 nd Respondent's Defence & Counter-Claim 2.10 The 2 nd Respondent filed a defence denying the Plaint assertions with regard to the alleged corporate relations: between two Respondents . 2 . 11 That the 2 nd Respondent was not a party to the agreem, between the Appellant and the pt Respondent as it was mere] receiving agent with a mandate to receive the consignment fr China and to collect the freight charges. It was not aware of agreement to ship the goods in a single container within a thr month period . 2.12 It was admitted that the Plaintiffs goods were at the Respondents warehouse but they had not been released to : because she had refused to settle shipping charges which w accruing at the rate of US$40 per day. 2.13 2 nd Respondents Counter Claim 2.14 The 2 nd Respondent averred that it was the pt Responde1 receiving agent for goods shipped to Zambia from China with mandate of collecting shipping charges on behalf of the Respondent. 2 . 15 That upon being notified that the consignment had arrived · Appellant went to the 2 nd Respondent's warehouse to collect l goods but she refused to pay the freight charges of US$904. 1 goods were therefore not released and are incurring ston charges of US$40 per day from 19th January, 2026 and by 1 October, 2017 the Appellant was owing the sum of US$24,69C storage charges and they were still accruing. 2.16 The 2 nd Respondent therefore counter claimed the following; 1. Payment of the sum of US$904 being freight charges. 2. Payment of US24,690 being storage charges up to 11 th October, 201 7 including charges that accrue after that date. 3. Interest 4. Costs and any other relief the Court may deem fit. 2 .1 7 Plaintiff's Reply & Defence to Counter Claim 2.18 The Appellant denied all the 2 nd Respondents averments. 2.19 That the consignment which arrived had some missing , wrong items. The Appellant requested that she collects __ __ _ ___ J.. . !L -~ - 1- __ J.. J..1-- nn~ n _____ ....3 _ _ -4-- --. C .... ,--.....l ~- --1---- +h-'VV"'\ 2.20 That the Appellant was not aware of the arrangements betw( the 1 s t and 2 nd Respondent and averred that she only enga1 the ist Respondent to ship her goods to Zambia and to be picl up immediately on arrival and she at no point engaged the Respondent to provide storage facilities. 3. HIGH COURT PROCEEDINGS 3 . 1 Appellants Arguments in the High Court 3.2 The Appellant testified as PW2 and provided the mate j evidence. She largely repeated the evidence in her statemen1 claim and reiterated that the delay in shipping had caused he1 suffer loss in rentals she had paid for a shop from where she \l to sell the goods she had imported. 3.3 She stated that whilst in China, an Agent called Emman Mutale assisted her in purchasing her goods and she left him~ the receipts so that he could collect the goods and send therr Zambia. She paid the 1 st Respondent US$4 ,435 for freight c asked that the goods be shipped to Zambia in a single 20-f container. 3.4 However, when the goods arrived 1n May 2015 they were 11 them and compiled a list of what was missing. When more goc arrived in December 2015 , she was asked to pay freight chari but she refused because as far as she was concerned, she l: already paid the freight charges in full. That the 2 n d Respond1 reacted by refusing to release the goods. 3.5 That the goods she had bought for resale were missing from · second consignment. That she had paid K18,000 in rentals fo shop from which she was to sell goods. 3.6 In cross examination the Appellant admitted that she entered i: a contract with the 1 st Defendant and not the 2 nd Defendant. 3. 7 She agreed that she had no document to prove that her goc were supposed to be in their own container and that the invc on record showed that her goods were in a groupage container 3.8 She admitted that once the goods were ready, they were to collected and delivered to the shipping agent ( 1 st Respondent) the agent (Emmanuel). 3. 9 She further admitted that she had not yet fully paid for somt the undelivered goods . 3 . 10 With regard to the shop, she said it was being rented by sister. 3.11 In re-examination she said that she had actually dealt with bi Respondents. 3.12 Respondents Arguments in the High Court 3 . 13 The Respondent called two witnesses DWl and DW2. 3.14 DWl Diana Meja the 2 nd Respondents marketing execut1 explained that when shipping goods from China to Zambia c normally engages an agent to assist in purchasing the goods a the agent remains with the receipts because not all the go< may be ready for collection after being purchased. The ag, collects the items when they are ready and delivers them to · shipping agent who weighs them and invoices the client. Tl are thereafter loaded in a container and shipped. 3. 15 Once the goods arrive the client is notified and if the goods not collected from the warehouse within 6 days, they attrac storage charge of US40 per day. 3.16 She stated that the client had requested a groupage contai and some of her goods remained because the container was f That when the rest of her goods arrived, the Appellant refusec pay the freight charges of US$904 and the 2 nd Respond refused to release the goods. 3.17 That it was Appellant's responsibility to follow up with l suppliers on the status of the unsupplied goods . 3.18 In cross examination DWl admitted that the manifest produc by the Appellant showed the goods which should have been the container and that the Respondent had paid for what was the manifest. She agreed that the manifest for the secc consignment was not produced in Court. 3 . 19 She further admitted that some items for which freight had b( paid by the Appellant, but not delivered to the 1st Responder warehouse, were left behind and therefore the claim additional freight charges was a double charge. 3 .20 In re-examination, DWl clarified that the Appellant was chari for the actual volume of goods in the container. 3.21 DW2, was the 2 nd Defendant's Operations Logistics Officer l Mulenga Sampa whose evidence was similar to DWl's. 4. HIGH COURT DECISION 4.1 The trial Court noted that the Appellant admitted under er examination that she entered into a contract with the Respondent but throughout her testimony she referred to the · Respondents as though they were a single entity and eventually called them sister companies. 4 .2 The trial Judge opined that the term sister company does not eJ in law and no documents were produced to establish any hold company/ subsidiary company relationship between the 1 Respondent companies . 4.3 The trial Judge found that the goods were to be shipped by the Respondent and received in Zambia by the 2 nd Respondent v1 was also going to receive freight charges. 4.4 The trial Judge found it, to not be in dispute , that the Appell contracted for a 20-foot container to transport all her goods once . 4.5 The trial Judge noted that the Plaintiff based her action in belief that some of her goods had been offloaded from her 20-f container. That the evidence showed that some of her goods l actually not been transported to the 1 st Respondent for shipm including some for which she had not completed paym( Further, the evidence did not show that her agent had delive all of her goods to the 1 st Respondent's warehouse. 4 . 6 After considering the evidence , the trial Court found as a fact t first consignment and she was therefore liable to pay the Respondent freight charges for the second consignment. 4. 7 With regard to the counter claim the Court observed that freight contract was between the Appellant and the 1 st Respond1 whom the 2 nd Respondent insisted was a completely separ entity. That it was therefore not clear in what capacity the Respondent was claiming storage charges as the invoice genera by the 1 st Defendant only listed the 2 nd Defendant as the receiv agent. 4.8 The trial Judge found as a fact that the 2 nd Defendant did : adduce any evidence to show the capacity in which it \l demanding freight charges. 4. 9 That the 1 st Defendant adduced sufficient evidence to show t the Plaintiff is liable to pay storage charges for goods in star, which she has refused or neglected to collect. That the Defendant had however not shown that the US$40 was agreec by the parties and that aspect was referred to the Registrar assessment. 5. APPEAL ,... ◄ rT"\.. " 1. The trial Court erred in Law and facts when it held that the Appellant is not entitled to the relief sought as the finding and Judgment is not supported by the evidence adduced before court. 2. The trial Court erred in Law in ordering the Appellant should pay storage charges as there was no legaljustificationfor such order and it is the 1st Respondent who was holding on to the goods. 3. The trial Court erred in Law when it made findings of fact that the goods were never off loaded as the evidence including that of the Respondent before Court indicated the opposite of such finding. 5.2 Appellant's Arguments 5.3 Ground 1 5.4 In ground 1 the Appellant argued that the evidence on record clear that there was a valid contract between the Appellant the Respondents. That it was also clear that there was failur perform the contract as the goods should have been shir together in a single 20-foot container which is not what happei l'T'\1 _ --'- T"-'t'ITn ____ ,C! ___ -3 .... ,__,._ -+--1-.- /\.._ ............... 11,...-+- ,. T.,r'\'V"\+.ct..rl h a r rrr'\nrlC' +, in possession of the 2 nd Respondent are all goods which sho1 have been in the first consignment. 5.5 The goods were supposed to have been delivered within th months but the very long delay caused the Appellant loss as · goods were meant for re-sale and she had paid for rental spi which was not used. 5.6 The Appellant made reference to an e-mail dated 29 th May 2( but has not directed the Court to where it was referred to in · evidence. We shall therefore skip the submissions in that rega 5 . 7 That the trial Court erred by finding that there was no breacl:'. contract when the breach was clear as , inter alia; the goods wh were supposed to have been delivered in one lot were deliverec bits and pieces; some of the goods were never delivered and · 2 nd Respondent had continued holding onto the Appella property. 5.8 Ground 2 5 .9 In ground 2 it was pointed out that the Appellant neither neglec nor refused to collect her goods but it was the 2 nd Respondent v refused to release them unless she paid the freight charges. 5 . 10 That the trial Judge made a finding that the 2 nd Respondent, should have therefore , on that basis , ordered the release of · Appellant's goods. 5 . 11 Ground 3 5.12 No separate arguments were advanced in ground 3. 6. 1 st RESPONDENT'S ARGUMENTS 6 . 1 As earlier indicated, the 1 st Respondent did not participate in t litigation as it did not file a defence and did not appear at · hearing and has not filed any process in this appeal. 7. 2 nd RESPONDENT'S ARGUMENTS 7 .1 The 2 nd Respondent relied on its heads of argument filed on ~ June, 2022. 7 .2 In response to ground 1, it was submitted that the Appellant 1 failed to show that she had a contractual relationship with the Respondent, therefore , the trial Judge was on firm ground wl she found that the Appellant had failed to prove breach of contr as claimed in her pleadings. The 2nd Respondent cited the ea of Wilson Masauso Zulu v Avondale House Project Ltd 111 f Kunda v Konkoa Copper Mines PLC 121 on the principle that who alleges must prove . 7.3 That the evidence at page 118 line 22 of the record of app showed that the goods which were not shipped were actually J delivered to the 1 st Respondents warehouse in China. 7.4 That ground 1 should fail on this score. 7 .5 In response to ground 2 it was submitted that the trial Jue found as a fact that the all the goods on the manifest were receb by the Appellant in the first consignment. Further that · Appellant was liable to pay freight charges for the secc consignment but had refused to do so. 7 .6 The 2 nd Respondent further pointed out that it had been forced store the Appellant's goods for an extended period of time and · storage had thus attracted a daily storage fee and the trial Ju< was therefore on terra firma when she found that having failed pay freight charges, the Appellant was liable to pay store charges. 7 . 7 The 2 nd Respondent closed by submitting that a review of grounds of appeal showed that the Appellant was only challeng findings of fact and it is trite that Appellate courts can only do where the findings of fact are perverse, not supported by evidence or where the trial Judge misapprehended the facts . ~ case of African Supermarkets T / A Shoprite Checkers v Mun and Another 131 was cited to that effect. 8. THE HEARING 8.1 At the hearing learned counsel for the Appellant submitted tl even though the heads of argument did not specifically addn ground 3, the ground was sufficiently covered by the argume: advanced in ground 2. 8. 2 We asked counsel to show us the basis of the con tract relationship between the Appellant and the 2 nd Respondent a he conceded that there was none and stated that the only is~ was that the 2 nd Respondent was illegally holding onto Appellants goods. 8.3 Counsel for the Respondent submitted that the trial judge was firm ground when she found that the Appellant was not entit to any of the reliefs claimed. 8.4 Counsel admitted that there was no contractual relations between the Appellant and the 2 nd Respondent. 8.5 We asked him to explain the basis upon which the 2 nd Respond was holding onto the Appellants goods and charging a storage : he was unable to point any document or other piece of evide: 9. DECISION 9 .1 We have considered the record of appeal and the argumei advanced by the parties. We shall address the three grounds appeal together. 9.2 We observe that despite the trial judge having found as a fact tl the pt and 2 nd Respondent are separate entities and the contr for freighting the Appellants goods was exclusive to the Appell, and 1 st Respondent the Appellant persisted with submitting though the Respondents were one and the same company. 9.3 Secondly, the entire appeal seeks to assail findings of fact. It is wonder that counsel for the Appellant in both in his oral c written submissions did not cite a single authority, neither c; law nor literary. 9.4 The trial Judge quite correctly found that the Appellant ente: into a contract with the pt Respondent only and we see no Ve: reason to interfere with the trial Judge's finding in that resp( See the case of The Attorney General v Marcus Kampun Achiume 141. 9. 5 The trial Judge noted that the 1 st Respondent did not react to Writ of Summons and the record shows that the 1st Respond did not file a defence and called no witnesses and has no office~ Zambia. 9 .6 That the 2 nd Respondent is only the pt Respondent's rece1v agent and also claimed that it was mandated to receive payme on behalf of the 1 st Respondent but provided no document evidence to that effect. 9. 7 The matter was basically undefended vis-a-vis the 1 st Respond but according to the case of Masauso Zulu v Avondale Hous: Project Ltd supra and a plethora of other decided cases, Appellant still needed to prove her claim. 9.8 With regard to the issue of the 20-foot container, we have difficl in understanding the trial Judge's conclusion that it was not dispute that the Appellant had contracted for a 20-foot contair When challenged on this issue in cross examination, the Appell admitted at page 174 of the record of appeal, that she was una to prove that she had contracted for a 20-foot container. The o document she had was an invoice for a group container. It was proved that the parties contracted for 20-foot container and documentary evidence pointed to the fact that her goods would transported in a group container. 9. 9 The evidence by DW2 is that the container in which the Appellar first consignment came was full and some of her goods were · heavy and had to be off-loaded. In our view there was no breacr. contract because the Appellant did not prove that she b contracted for exclusive space in any container. The evidence a shows that some of her goods were not even delivered to the Respondents warehouse. We do not think that breach of contr, against the 1 st Respondent was proved. 9.10 As there was no contract between the Appellant and the Respondent the question of breach of contract does not arise a the concept of agency was not referred to by either party. 9 . 11 In relation to the claim for damages for losses arising from rent the shop which she ended up not using, we agree with the ti Judge that the Appellant did not prove the loss. 9.12 With regard to the payment of storage fees, after making a find that the Appellant was not being overcharged with the frei: charges, the trial Judge at J 14 (p .23 of the record of appeal) sta as follows; "as a consequence of this finding, the Plaintiff should1 the freight charge attached to the goods which are in the Defendants warehouse." 9.13 On the very next page the trial judge makes a complete abo turn by stating as follows "It therefore, is unclear why the Defendant is demanding freight charges from the Plaintiff whei is not privy to the contract ... .. I find that the 2 nd Defendant did adduce any evidence to show the capacity in which it u demanding freight charges." 9.14 We agree with the latter position because the evidence clea shows that there was no contract between the Appellant and 1 2nd Respondent. 9 . 15 However, later on 1n the judgement, when addressing · counter-claim the trial judge at page J15 (page 24 of the rec1 of appeal) made another about-turn when she stated as follo 1 "I am satisfied that the 1s t Defendant had adduced suffici evidence to show that the Plaintiff is liable to pay storage char! for goods in storage which she has refused or neglected to con 9.16 We suspect the reference to the pt Respondent was inadvert because the 1 st Respondent had not demanded payment storage charges from the Appellant. Further, as earlier noted, 1 st Respondent did not file a defence and called no witnesses c could therefore not have adduced any evidence at all. 9.17 We presume that the learned trial Judge was referring to the : Defendant. However, even if that be the case, the trial Judg reasoning was flawed because her earlier finding was that the Respondent had no right to demand freight charges from 1 Appellant. The evidence showed that the Appellant attempted collect her goods but the 2 nd Respondent would not release th until she paid the freight charges which the trial Judge held tl they had no right to demand. 9.18 When she went to the 2 nd Respondent's warehouse, the Appellc expected to collect the second consignment the same way ~ collected the first one without paying any charges. If any chari were due, that was matter between herself and the Respondent. 9 .19 Apart from simply stating that it was the 1 st Responder receiving agent with a mandate to collect freight charges on behalf the 2 nd Respondent did not show that it had been askec: collect additional freight charges from the Appellant. 9.20 Further, it was not shown that the Appellant and the Respondent had agreed on the additional freight charges c most importantly, the 2 nd Respondent did not produce < document or contractual provision that empowered it to impou1 or detain the Appellants goods. 9.21 In our view, the 2 nd Respondent therefore illegally held onto t Appellant's goods. 9. 21 In the premises, the appeal partially succeeds and we therefc set aside the lower Courts order that the Appellant should p storage charges and instead order that the goods be immediat< released to the Appellant. 6.1 Costs are granted to the Appellant. ~ :::::=> ~ - ······································ M. M. KONDOLO SC COURT OF APPEAL JUDGE B. M. MAJULA .......... h.~.!:::.?. ........ . A. N. PATEL SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGl