Collum Coal Mining No. 6 Shaft Industries Limited v Bowen Logistics Limited (2011/HP/553) [2021] ZMHC 130 (28 April 2021)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2011/HP/553 COLLUM COAL MINING No. 6 SHAFT PLAINTIFF INDUSTRIES LIMITED AND PRINCIPAL -[ ; ; APR 2;,_J REGISTRY BOWEN LOGISTICS LIMITED DEFENDANT Before the honourable Justice F. M. Chisanga on the 28th day of April 2021 For the Plaintiff For the Def end ant Major C A Lisita, Messrs Central Chambers NIA JUDGMENT Cases ref erred to: 1. Khalid Mohamed vs The Attorney General (1982) ZR 49 2. Mhango vs Ngulube & Others (1983) ZR 61 3. J Z Car Limited vs Chala and Another (2002) ZR 112peter 4. Barrow vs Arnold4 (1846) 8 Q. B 595 at 610 Statutes referred to: 1. The Rules of the Supreme Court (White Book) 1999 Edition 2. The Sale of Goods Act, 1893 1.0 INTRODUCTION 1.1 The plaintiff commenced this action by way of writ of summons for recovery of the sum of K216,706.52 being monies due and payable to the plaintiff for goods ordered and duly delivered to the defendant by the plaintiff at the defendant's own request and insistence. J1 1.2. The plaintiff also seeks for damages for breach of contract and interest on both claims. Costs are also sought. 2.0 BACKGROUND 2.1 The plaintiffs claim is amplified in the statement of claim. It reveals that on or about 15th March, 2011, one Yowela Chomba approached the plaintiffs Marketing Manager, Charles Zavare with an offer to purchase 600 tonnes of coal at K240,000.00. Upon acceptance of the offer, it was the parties' understanding that the 600 tonnes of coal would be delivered to the defendant's client, Zamanita Zambia Limited and further that the defendant would make payment at the latest a day after delivery of the last consignment. 2.2 The plaintiff duly delivered 555.99 tonnes valued at K216,706.52. Contrary to the agreement, on 13th April, 2011 when the plaintiff delivered the final consignment of 40 tonne4s to the defendant's client, it refused to accept the consignment, on the basis that they had enough stock thereby preventing the plaintiff from off-loading and delivering. On 14th April, 2011, the plaintiff demanded for payment of the tonnage already delivered, but the defendant started stalling and shifting the dates of payment forward in breach of the terms of the said agreement. J2 2.3 Several reminders for payment have proved futile as the defendant has declined, neglected and or refused to liquidate its indebtedness to the plaintiff for the supply of 555. 99 tonnes of coal. 2.4 In its defence, the defendant admits having entered into a contract with the plaintiff for the supply of 600 tonnes of coal at the price of K240,000.00. As regards the failure to offload the 40 tonnes of coal, the defendant contends that the same was only known to the plaintiff and further that it had nothing to do with Zamanita Zambia Limited's alleged refusal to accept delivery. The defendant also avers further that the plaintiff did not suffer any loss at all for the non-delivery of the 40 tonnes of coal as it was at liberty to sell it to another buyer. 2.5 On the first day of trial, counsel for the defendant was not before court. Counsel for the plaintiff was ready to proceed with the first witness. I ordered that the witness be examined in chief and the matter be adjourned for cross examination. 2.6 PWl was Mr. Charles Zavari, the plaintiffs Marketing Manager. He testified that on 15th March, 2011, he was approached by one Chomba, an agent of the defendant for the supply of coal. After discussions, they agreed that the payment would be made after delivery of the last consignment. It was also agreed that the coal would be delivered at Zamanita Zambia Limited. J3 2. 7 When referred to the delivery notes in the plaintiffs bundle of documents, PWl recognised them. He testified that some delivery notes indicate Parmalat because the initial impression they got was that the coal was going to Parmalat. When the defendant realized that Parmalat had enough coal, it was diverted to Zamanita. He asserts that on 31 st March, 2011, 2011, 30.300 tonnes of coal were delivered to Zamanita. On 1st April 2011, 31.600 tonnes of coal were delivered to Zamanita. On 1st April 2011, 31.600 tonnes of coal were delivered. On the same date, the plaintiff delivered 32.060 tonnes, 25.060 tonnes and 35.040 tonnes. On 2 nd April 2011, two loads were delivered; one of 31.540 tonnes and the other 25.800 tonnes. On 3 rd April 2011, three loads of coal were delivered as follows: 31.200 tonnes, 31.360 tonnes and 29.420 tonnes. On 6 th April 2011, 24 .480 tonnes was delivered on 13 April 2011. PW 1 testified that the recipient on behalf of the defendant acknowledged delivery of the said coal. The witness informed the court that when the last truck went to offload the last load, the driver was informed that the receiver had enough coal and the consignment was returned as a result. 2.8 The witness went on to state that after delivery, the plaintiff began following up payment. The defendant's excuse was that it had not been given its dues by Zamanita Zambia Limited. A check at Zamanita revealed that the defendant was paid immediately the consignment was delivered . PWl went on to state that the defendant kept deferring payment until mid year when proceedings were instituted. He testified further that at the time J4 of delivery of summons, it was discovered that the company was closed and the Director was no longer residing in Zambia. 2.9 When the matter came up for continued trial, counsel for the defendant withdrew from representing the defendant. He explained that the defendant was no longer trading in Zambia and could not be traced. The trial could not proceed as a result. 2.10 At the last sitting, the plaintiff closed its case. After being satisfied that service of the date of hearing had been effected by substituted service I adjourned the matter for judgment. 3.0 CONSIDERATION OF THE COURT 3.1 I have considered the evidence led herein. In considering the case now before me, the observations made by the Supreme Court in the case of Khalid Mohamed vs The Attorney General1 come to mind. Ngulube DCJ, as he then was, stated that: "A plaintiff cannot automatically succeed whenever a defence has failed; he must prove his case ... A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment." 3.1 Similarly in this case, despite the defendant's absence, the plaintiff in like manner bears the burden of proving his case on a balance of probability. It is not disputed that the plaintiff and the defendant entered JS into a contract for the supply of 600 tonnes of coal at the cost of K240,000.00. This is borne out of the defence in which the plaintiff's averment to that effect is admitted. 3.2 I have had sight of the delivery notes in the plaintiff's bundle of documents. But for two delivery notes that indicate Zamanita, the rest indicate Parmalat. PWl explains that this is so because the plaintiffs initial instruction was to deliver to Parmalat. The coal was then diverted to Zamanita when it was discovered that Parmalat had enough coal. This is probable because the defendant does not, it is defence, dispute delivery. 3.3 I therefore find that a total of 555.99 tonnes of coal was delivered by the plaintiff on behalf of the defendants to Zamanita Zambia Limited and Parmalat. The defendant, is therefore indebted to the plaintiff in the sum of K216, 706.52 . 3.4 The plaintiff's witness states that 40 tonnes remained undelivered because Zamanita Zambia Limited refused to accept delivery. The defendant's contention is that it was not responsible for Zamanita's failure to accept the 40 tonnes of coal, and that the plaintiff did not suffer any loss for the non-delivery as it was at liberty to sell the coal elsewhere . 3.5 A breach of contract is a failure, without legal excuse, to perform any promise that forms part of the contract. The parties contracted, at the defendant's instance, for the sale for 600 tonnes of coal for the price of JG .. K240,000.000. Sections 27 and 28 of the Sale of Goods Act are of relevance to this matter. They enact the following: Section 27: "It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale." Section 28: "Unless otherwise agreed, delivery of goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods." 3.6 It is undeniable that the defendant failed to procure acceptance of the 40 tonnes of coal. This was a breach of the contract between the parties. However, the plaintiff led no evidence to show the damage suffered as a result of the breach. PWl asserted that the last load was rejected. This alone is not enough. The damage suffered should have been proved. Mhango vs Ngulube & Others2 , affirmed in J Z Car Limited vs Chala and Another3, elucidates that it is for the party claiming the damages to prove the damage. 3. 7 It is trite that unjustified refusal to accept delivery of the goods from a seller renders the buyer liable for any loss occasioned by his refusal or neglect to take delivery of the foods. The rationale is that the seller is to be J7 .. put in the same position as he would have been in if the breach had not occurred. 3.8 The Common law measure of damages for non-acceptance of goods was stated in Barrow vs Arnold4 , as being the contract price less the market price at the contractual time for acceptance. 3.9 In the present case, the plaintiff has not shown its loss . It is left to conjecture what loss it suffered for non-acceptance, if any. In the premises, I will award the plaintiff nominal damages, in the sum of K2000. 4 .0 CONCLUSION 4.1 On the foregoing, I enter judgment in the sum of K216,708.52 for the coal it delivered at the defendant's instance, together with nominal damages in the sum of K2000. I award the defendant interest at short term deposit rate from date of Writ to date of judgment, and thereafter at average current bank lending rate until liquidation in full. Costs are for the plaintiffs, to be agreed and in default taxed. Dated the ....... ~~.day of ...... ~ ..... 2021 F. M. CHISANGA HIGH COURT JUDGE J8