Beatrice Zulu Njobvu v Nkululume Diesel Services Ltd and Anor (Appeal No. 12/2012) [2013] ZMSC 97 (5 March 2013)

J1 IN THE SUPREME COURT FOR ZAMBIA Appeal No.12/2012 HOLDEN AT NDOLA (CIVIL JURISDICTION) B ET W E E N: BEATRICE ZULU NJOBVU APPELLANT AND NKULULUME DIESEL SERVICES LTD 1 ST RESPONDENT CHRISTINE ZULU NJOBVU 2NDRESPONDENT Coram: Chibomba, Musonda, JJS, and Hamaundu, AJS On 4th December 2012 and on 5 th March, 2013. For the Appellant: For the Respondents: Mr. D. Mulenga of D. Mulenga and Company Mr. K. Msoni of J. B. Sakala and Company, Ndola JUDGMENT Chibomba, JS, delivered the Judgment of the Court. Cases referred to:- 1. The Attorney General vs. Marcus Kampumba Achiume ( 1983) Z. R. 1. The Appellant appeals against the Judgment of the High Court at Ndola in which the learned Judge held inter-alia, that the Appellant was not entitled to the house in question as the same was not part of her late husband's property. J2 The facts leading to this appeal are that the Appellant's husband used to work for the 1st Respondent, a family business, in which the 2nd Respondent was a director. The Appellant sued her late husband's mother, the 2nd Respondent and the 1st Respondent over House No. 4057, Nkwazi Extension, Ndola, claiming that this was part of her late husband 1s estate. The Appellant and her husband had moved into this house whilst it was still incomplete and then subsequently, the husband died. The family asked her to vacate the house on ground that the same belonged to the 2 nd Respondent who was the Appellant1s mother in-law and a director in the 1st Respondent Company. The Company had bought the Plot in the name of the 2 nd Respondent and then developed it. The Appellant and her husband were allowed to move in when the husband became unwell. On the other hand, the Respondents argued that the house was for the 2 nd Respondent and that it was built on a Plot bought with resources from the 1st Respondent Company for the 2 nd Respondent. J3 Following the Appellant's refusal to vacate the house, the Respondents commenced an action in the High Court in which the Respondents claimed the following relief from the Appellant: "(1) A declaration that the 2 nd plaintiff is the legal owner of plot number 4057, Nkwazi Extension, Ndola and that the 1st plaintiff lawfully purchased the property on her behalf. (2) An order of possession of plot number 4057 from the Defendant. (3) Costs of and incidental to these proceedings." The parties adduced evidence. After considering and analysing the evidence, the Court below came to the conclusion that the house was built by the 1st Respondent for the 2 nd Respondent. On this basis, the learned Judge in the Court below dismissed the Appellant1s claim to the house. He also dismissed the Appellant's Counter-claim for salary arrears not paid to her late husband and accumulated leave days. Dissatisfied with this decision, the Appellant appealed to this Court advancing four grounds of Appeal as follows:- 1. The Court below erred both in law and fact when it failed to take into account the fact that the Late Jimmy Njobvu was employed by the 1st Respondent until his death and that from January, 2008, to April, 2008, the deceased received no salary from the 1st Respondent which was at K2,000,000.00 per month. J4 2. The Court below erred both in law and fact when it found that the 2 nd Respondent is the legal owner of Plot Number 4057 Nkwazi Extension, Ndola and that the 1st Respondent lawfully purchased the same without due regard to the fact that the 1st Respondent is a body corporate capable of owning property in its own name. 3. The Court below erred both in law and fact when it held that Plot Number 4057 Nkwazi Extension, Ndola, formed part of the estate of the Late Jimmy Njobvu. 4. Any other grounds that shall become necessary upon study of the Judgment and Court proceedings. The learned Counsel for the Appellant, Mr. Mulenga, relied on the Appellant's Heads of Arguments. In support of the first ground of Appeal, it was contended that the Court below erred both in law and fact when it failed to take into account the fact that the Appellant's husband was employed by the 1st Respondent until his death and that from January, 2008, to April, 2008, the deceased did not receive any salary at K2,000,000.00 per month. It was pointed out that the 2nd Respondent, who was PW 1 1n the Court below, under Cross-examination, told the Court below that her son used to work for the 1st Respondent Company from 1994 and that he was not JS getting a salary and that they used to share profits at the end of the month. It was argued that there was also a monthly income shared as evidenced at page 104 of the Record of Appeal. It was contended that PW2 also told the Court below that the dues due to the Appellant's late husband were still outstanding as the same had not been paid. That the Appellant's husband used to work for the 1st Respondent is also evidenced at page 108 of the Record of Appeal. It was further contended that the Appellant1s evidence that her late husband used to work for the 1st Respondent was not challenged and so was her evidence that the Appellant had not been paid any benefits and that at the time of his death, her husband was owed salary arreas of K2,000,000.00 for the period January to April 2008 and accrued leave days from 2003 to 2008 as evidenced at pages 116-117 of the record. It was submitted that the Respondents admitted these facts and that it was inconceivable that the trial court arrived at the finding that the Appellant had failed to prove her Counterclaim as the Court below ought to have been concerned in establishing whether sufficient evidence had been adduced and then refer the matter for assessment. Therefore, that ground one should succeed. JG In support of grounds 2 and 3 of the appeal which were argued together, it was submitted that the Court below erred both in law and fact when it found that the 2 nd Respondent is the legal owner of Plot No. 4057, Nkwazi Extension, Ndola, and when the learned trial Judge ruled that the 1st Respondent had lawfully purchased the same. That this holding was without due regard to the fact that the 1st Respondent is a body corporate capable of owning property in its own name. That the Court below also erred when it found that the said house did not form part of the estate of the late Jimmy Njobvu. It was pointed out that the evidence on record shows that there was no Company resolution to build a house for the 2 nd Respondent or that the house 1n issue was bought from Mr. Kauseni in 2006. It was contended that ownership was changed as the Respondents were given a document of title at the time the plot was bought. That, however, the Respondents' witness, PW2, told the Court below that when the property was bought in 2006, a letter dated 27th March, 2006, was given. And that the late Jimmy Njobvu had disputed that the house was bought for their mother. It was further contended that PW3, George Kauseni, stated that at the J7 time of selling the house in question, he issued a letter of sale to the 2nd Respondent and that documentary evidence is there to show this. That, however, the evidence points to the fact that the changes in the documentation of ownership was done long after Jimmy Njobvu passed on in 2008 as evidenced at pages 85 to 86, 90-94 of the record of appeal. Further, that the documents for the house were being kept by the Appellant's late husband and that the 2 nd Respondent did not offer any explanation why he was keeping the documents. It was further contended that no evidence was led to show that there was a transaction between the Company and George Kauseni or that the Company had passed a resolution to buy the house for the benefit of the 2 nd Respondent. Further, that the 1st Respondent could not have provided resources to build the house in question as it was struggling to pay its employees and that the documentary evidence contradicts the Respondents' evidence that the plot was bought from Mr. Kauseni in 2006 in that the documents concerning proof of ownership were not executed then. It was further submitted that there was no Company resolution passed for changing documents after the death of the Appellant's husband and therefore, that it goes without saying that J8 Jimmy Njobvu, the late husband to the Appellant, purchased and owned the property in question. Therefore, that it was erroneous for the Court below to dismiss the Appellant's counterclaim and shy away from making appropriate orders. Hence, this appeal should succeed. On the other hand, in opposing this appeal, the learned Counsel for the Respondents, Mr. Msoni, also relied on the Respondents' heads of arguments. In response to the first ground of appeal, it was contended that the trial Judge did not err when he found that the Appellants husband was not an employee of the 1st Respondent. It was submitted that the learned trial Judge considered the evidence adduced by the Appellant regarding the counterclaim and found that the Appellant had not proved her claim to the required standard of proof of the balance of probabilities. It was submitted that the evidence on record shows that the 1st Respondent was a family business as evidenced at pages 108 and 118. Further, that the print out from the Patents and Companies Registration Office at page 98 of the record reveals that the deceased, Jimmy Njobvu, was a director of the 1st Respondent and that in fact, the Appellant also J9 disclosed that her husband was a director in the 1st Respondent as evidenced at page 118 of the record. Further, that the Appellant admitted in Cross-examination, that there were no pay slips issued to her husband as he was a director. Therefore, that the Court below was on firm ground when it held that the Appellant did not adduce evidence to show the salary that the deceased was earning and the specific conditions that he was enjoying. It was further argued that the Appellant did not also show how much terminal benefits the deceased was entitled to. That as such, even though PWl and PW2 alluded to the fact that the deceased used to work for the 1st Respondent, it is clear that the deceased was not getting a specific salary. That PW 1 also stated that they used to share profits at the end of the month as evidenced at page 134 of the record and that this is an indication that there was no fixed amount which was assigned to be paid to the deceased. It was contended that although the Appellant is seeking payment from the 1st Respondent, she is not legally entitled to demand benefits for the estate of the deceased as there is an appointed administrator of the estate. That Ground one therefore, has no merit. JlO In response to grounds 2 and 3 of the appeal, it was submitted that the Court below was on firm ground when it found that the 2 n d Respondent was the legal owner of the property in question and that the 1st Respondent lawfully purchased the same with due regard to the fact that the 1st Respondent is a body corporate capable of owning property in its own name. It was argued that there is undisputed evidence from three witnesses which show that at the material time, the property in question was purchased for the 2nd Respondent by the 1st Respondent and that PW 1 and PW2 testified to this effect in their capacity as directors of the 1st Respondent. It was contended that PWl also told the Court below that she 1s a founder member of the 1st Respondent and that PW3, the former owner of the property in question, gave clear and narrative evidence regarding what the directors of the 1st Respondent told him at the time he sold the property to them and that he explained that the sale of property could not be effected until the 2 nd Respondent who is the mother to the deceased and PWl had inspected the plot as evidenced at page 112. Further, that PW3 also, admitted signing the documents of sale in favour of the 2 nd Jll Respondent and not the Appellant's husband. It was further contended that although the Appellant told the Court below that her husband was the legal owner of the property in question, she failed to produce any documentary proof to that effect or to call any witnesses to confirm that the property was bought by her late husband. That the seller of the property refused signing any documents in favour of Jimmy Njobvu concerning the property in question. It was further submitted that even if the Court was to find that there was no resolution regarding the purchase of the property in question, the Appellant would still not be entitled to the property because the property was never intended to be bought for the deceased. Therefore, that the fact is that the 1st Respondent, which used its resources to build the property as evidenced at pages 105 and 108 of the record of appeal, is not claiming the property. In response to the argument that all the documents which were brought to Court show that the change of ownership was done J12 long after the deceased had died, it was submitted that PW2 in fact, produced exhibit Pl which shows that the property was acquired in 2006. In support thereof, reference was made to pages 103 and 108, of the record. Therefore that Grounds 2 and 3 also have no merit. We have seriously considered this appeal together with the arguments in the Heads of Arguments and the Judgment by the learned Judge in the Court below and the evidence on record. It is our considered view that this appeal raises only one major question. This is whether sufficient evidence was adduced in the Court below to support the Appellants claim that the house in question is the property of her late husband and whether the Appellant is entitled to claim its ownership. With respect to Ground 1 which attacks the learned trial Judge's finding that the Appellant had failed to prove her claim in the Counter-claim that her late husband was an employee of the Respondent and/or that her husband was employed under any specific conditions or to show the salary that he was earning and the leave days that had accumulated, our firm view is that the learned Judge made a finding of fact which was based on the evidence that was before him. We have said before and we repeat here that an Appellate Court will not reverse the findings of fact made by the trial Judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make. The case of Attorney General vs. Marcus Kampumba Achiume 1 refers. We are not at all satisfied that the Appellant in this case has shown that the findings of fact made by the trial Judge were either perverse or were made in the absence of any relevant evidence. We also abide by the principle that he who alleges must prove. In this case, we agree that the Appellant did not at all prove her claim in the Counter-claim that her late husband was an employee of the 1st Respondent as what came out from the evidence is that her late husband was a director in the 1st Respondent Company. Further, there is uncontroverted evidence which shows that in fact, the 1st Respondent was a family business in which the family used to share profits whenever this was J14 available and not a salary. It was also shown that the Company was struggling which fact the Appellant conceded. Therefore, Ground one of this appeal has no merit. We dismiss it. Grounds 2 and 3 attack the learned trial Judge's findings that the 2nd Respondent was the legal owner of Plot 4057, Nkwazi Extension, N dola, and that the property in question was lawfully purchased by the 1st Respondent for the 2nd Respondent. The major contention by the Appellant is that the learned Judge ought not to have so found as the evidence on record shows that the property in question belonged to the Appellant's late husband. We have considered the submission in relation to Grounds 2 and 3. We find that these grounds also attack the findings of fact made by the trial Judge. We repeat here what we have stated above. This is that this Court will not reverse the findings of fact made by the trial Judge unless it is satisfied that the said findings were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the evidence, no trial court acting correctly can reasonably make 1 . Our considered view is that the Appellant has not satisfied us on any J15 one of the above principles so as to persuade us to reverse the learned trial Judge 1s findings of fact in this matter. Further, the record shows that there is evidence from the 2 nd Respondent and two other witnesses including PW3 who sold the property in question to the Respondents. This evidence is clear and straightforward. It establishes that the property in question was sold by PW3 to the 1st Respondent for the benefit of the 2 nd Respondent and not to the Appellant's husband. Our firm view is also that the issue of there being no Company resolution to purchase the plot for the benefit of the 2 nd Respondent by the 1st Respondent as has been asserted, does not at all arise nor can the lack of resolution be used to the benefit of the Appellant. We fail to see how lack of a Company resolution in this case can support the Appellant's claim of right to the property or give any solace to her. Further, in Cross -examination, the Appellant did state that the documents that her husband signed disappeared from the house. She went on to state that she did not report the loss of these documents to the Police. She also stated that she was not there when her husband paid for the property in question to PW3. J16 In view of this, the learned trial Judge cannot be faulted for corning to the conclusion that the Appellant did not adduce any tangible evidence to support her claim of right to the house in question. We repeat here the Maxim that "he who alleges must prove." Therefore, the learned trial Judge was on firm ground when he upheld the Respondents' claim of right to the property in question. We find no merit in Grounds 2 and 3 of this appeal. We dismiss them. The Judgment by the learned Judge in the Court below is confirmed. The sum total is that all the three Grounds of appeal having failed, this appeal has failed on ground that it has no merit. The same is dismissed with costs to the Respondents to be taxed in default of agreement. H. CHIBOMBA, SUPREME COURT JUDGE r I I ,'' ~ r--.' ...... ·-·................................. r '- ~ L,, -..... I '/ I ...................... ~-........................... . _1/ &, I ~ ( P. MUSONDA, SUPREME COUR JUDGE E. M. HAMAUNDU, ACTING SUPREME COURT JUDGE