Francis Mututa v Memory Goldwin (2023/SD/36) [2023] ZMSUB 20 (22 June 2023)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SD/36 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN REPUBLIC OF ZAMBI A THE JUD I CIA RY ~ 22 JUN z:m ~ MAGISTRATE C LA S P. O. BOX 42010 1, MBAL A FRANCIS MUTOTA PLAINTIFF AND MEMORY KATONGO 1ST DEFENDANT GOLDWIN CHISENGA 2ND DEFENDANT Before: Hon. Deeleslie Mondoka For the Plaintiff For the 1st Defendant For the 2nd Defendant : : : In person In person In person JUDGMENT Cases referred to: i. ii. iii. iv. Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548.; Deglman v Guaranty Trust (1954) 3 DLR 785; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Leslie Chikuse v. Jeremy Bakangaba Tshinkobo Appeal No. 21 of 2020; J1 v. vi. vii. Benedetti v Sawiris and Others (2013) UK SC 50.; Cyprus UK Limited v Menelaou (2015) UK SC 6; Savenda Management Services v Stanbic Zambia Limited (Selected Judgment No. 10 of 20 18); viii. Independent School Dist v Independent School District, 170 N. W.2d 433, 440 (minri. 1969); the People v O'Rourke, 124 Cal. App 752, 759 (Cal App. 1932); Attorney General v. Nawakwi (Selected Judgment No. 16 of 2016), and Zambia Revenue Authority v. Post Newspapers Limited (2016) (1) ZR 394. ix. x. xi. Statute: i. The Rent Act, Chapter 206 of the Laws of Zambia. Other material: i. Black’s Law Dictionary, 9th Edition, 2009; Introduction [1] This Judgement proceeds from an unliquidated claim wherein the plaintiff is claiming for restitution of household goods namely: (i) 1 deep freezer; (ii) 1 wooden double-bed; (iii) 2 king foam mattresses, and (iv) 1 display cabinet, unlawfully collected from the plaintiff’s house by the defendants as a way of recovering the sum of K1, 400.00, owed to them by the plaintiff in respect of rental arrears and unpaid water bills. The debt has since been cleared hence the claim for restitution. The plaintiff also seeks the court to award any other relief that the it may deem fit and an order for all the incidental costs. The matter was commenced on 5th May, 2023, by way of writ of [2] [3] summons (hereinafter referred to as the writ). J2 Background Facts [4] I have made it a point to sympathize with the thought from the storied jurist– Anthony Scalia, who said: … “Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case”. (Emphasis mine) [5] With that said, hereafter is a recapitulation of the facts in support of the claim– which facts are but a pars pro toto of the proceeding during trial. [6] When this claim was published– the 2nd defendant’s response was steeped in purposeful ambiguity. [7] On 8th June, 2023, when the matter came up for trial, PW1, the plaintiff herein, who much to his credit gave a pithy testimony replete with meaning. [8] In parenthesis– PW1 in this matter rehashed the testimony dinned to him by the proceeding witnesses. And the same went something, to the effect that– the 1st and 2nd defendant wade in the dwelling of PW1 and divested the house of all of PW1’s effects with no holds barred and put the property outside the house on account of rental arrears. [9] PW1 further indicated that– the 1st and 2nd defendant removed all his property and placed the same outside– in turn held in lien the following items: (i) a 220-240 litres deep freezer; (ii) a freezer stand; (iii) two double mattresses; (iv) 1 wooden bed. which behaviour the plaintiff found insufferable. PW1 silently indicated that, the 1st and 2nd defendant by doing all this were simply making a rod for their own backs. J3 [10] In tandem– the 1st and 2nd defendant loused up the plaintiff’s display cabinet. On PW1’s recollection, all this happened around about the 10th and 11th day of April, 2023. [11] During cross-examination the parties re-established that the items seized by the 1st and 2nd defendant belonged to the plaintiff. [12] The Plaintiff called as his second witness, PW2, SUSAN TEMBO– a tricenarian of old Location, Mbala, who testified as hereafter. [13] The 1st and 2nd defendant in tow– pitched up at PW1’s house; asked PW2 for the house keys and to avoid bandying words– PW2 resigned herself to the demand and surrendered the keys in question to the defendants. However, PW2 when peremptorily instructed by the defendants to remove the effects from the house, PW2 declined– and without let or hindrance, the defendants being at one, where at the coalface, as if to beat a deadline proceeded to remove the property out of the house in a rush. [14] The 1st and 2nd defendant, with a rather cavalier attitude wade through the house inchmeal until the last bit of property was removed and placed outside. [15] On 25th April, 2023, PW2 went to the 1st and 2nd defendant’s residence for to fetch the goods which the defendants had expediently kept for PW1. To which PW2 was told that the defendants that they would release most of the effects, but hold on to some of the items that they had removed from the house: (i) a 220-240 litres deep freezer; (ii) a freezer stand; (iii) 2 double mattresses; (iii) 1 wooden bed. [16] PW1’s display cabinet was damaged in the process of moving the items from the house. [17] During cross examination, the 1st and 2nd defendant implicitly acknowledged having removed the items from the house in question and said aught of value to gainsay damaging the cabinet in question. J4 [18] [19] There was nothing in re-examination. The plaintiff called the third and last witness, PW3, an adolescent born in the mid aughts whose account of the facts dovetailed admirably with the preceding witnesses, except to add that: [20] When PW3 went to the defendants’ house to fetch the items that had been held for safekeeping– the 1st defendant indicated that PW3 needed to sign a certain document evincing the fact that– (i) two mattresses; (iii) deep freezer; and (iii) wooden had been held as security for payment. It was PW3’s testimony that the same was steamrolled into signing for the items held in lien by the 1st and 2nd defendant. The document is marked “MK1” for identification purposes. [21] During cross-examination it was established that the cabinet was damaged owing the defendants hastily moving it. And that they took the items out of the house for rent owed. [22] Nothing was advanced in re-examination. The Defendant’s Case [23] The defence only had two (2) witness to render an account. DW1, the 1st defendant herself, MEMORY KATONGO, a tricenarian of New Location, working as a teacher-cum-pastor. [24] DW1 related that in September, 2022, she called PW1 and informed him that they had increased rentals from the usual K400.00 to K700.00, and a three (3) months’ notice was given to that effect. [25] Interestingly, PW1 committed to paying the same provided he had not shifted by January, 2022, PW1 would pay the revised rental consideration. In addition, the defendants and PW1 had earlier agreed that whenever PW1 was to pay his rent, he would also be paying for water bills. J5 [26] It was DW1’s testimony that, PW1 had defaulted in paying rentals for a four (4) months stint– spanning from January to April, 2023. [27] When DW1 and the 2nd defendant paid a visit to Chambeshi Water and Sewerage, they were mystified to learn that PW1 had not made considerable payments for water bills, consequently Chambeshi Water and Sewerage discontinued its service to supply water at the premises in question. DW1 provided a statement dated 31st May, 2023, from Chambeshi marked “MK2” giving a lowdown of the amount owed and payments made. [28] On DW1’s account, the water bill stood at about K2, 892.00. fortunately, when a payment of K800.00 was made by DW1, the utility company swung by to restore the supply of water. In their infinite wisdom– DW1 and the 2nd defendant aggregated the rental arrears with the water bill. And upon the same, DW1 and the 2nd defendant resolved that they would confiscate PW1’s: (i) two mattresses; (iii) 1 deep freezer; and (iii) wooden bed, as security for payment. This was on the 25th of April, 2023. [29] According to DW1, PW3 came with the slip evincing the payment of water bills at Chambeshi, and averred that they had paid for the water bills. And thus, no further payments were owed and as a consequence– the property in question should be released to them. Which proposition DW1 and the 2nd defendant demurred. A few days DW1 and the 2nd defendant received summons to appear before this honourable. [30] In cross examination, it was argued that PW1 denied owing K2, 800.00 in rental arrears from the months of January to April, 2023, at K700.00 monthly. further, that there were no receipts showing the corresponding payment that PW1 alleged to have made, and it was further established that PW1 employed the wrong payment modality J6 from the usual cash payment followed by a receipt. DW1 argued that he never gave PW1 any ATLAS MARA bank account or sanctioned him to pay into the account in question. [31] Under the mill of cross-examination DW1 indicated that the same was not sure that what they had done had the blessing of the law, when [32] [33] the distress was levied on PW1. There was nothing in re-examination. The defence called as its last witness, DW2, who in essence laboured the points made by DW1 except to add as hereunder. [34] That the house in question is an institution house and that DW1 and DW2 are basically custodians of the same. And that DW2 and DW1 had been give the mandate to receive and make out receipts whenever a payment for rentals is made by tenants. [35] DW2 confirmed that a document was drafted indicating the items seized during the eviction drama so that no issues would arise and or false claims on items not seized in the process. [36] It was DW2’s assertion was that permission was sought, from PW2, prior to entering the PW1’s house on the day in question, and that was how the items were removed from the house. [37] In cross examination, it was established that the property was in the care of DW1 and DW2. Undisputed facts [38] Having considered the evidence herein, I find the following to be common cause: (i) that PW1 was a tenant of DW1 and DW2; and (ii) that DW1 and DW2 removed the property of PW1 from the house in question. Disputed facts J7 [39] Having considered the evidence herein, I find the following facts to be disputed: (i) that PW1 does not owe DW1 and DW2 any monies in rent and or water utility bills; (ii) that the rentals were increased from K400.00 to K700.00 effective January, 2023; and (iii) that PW1 owes rent in excess of three (3) months, from January to April, 2023. Analysis of the law and facts [40] When the plaintiff commenced process by way of writ of summons, one of the reliefs sought was– restitution. Therefore, as a precursor to the herein issue, I will with aid of authorities explain the following concepts: (a) What is 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”. (b) What is 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. [41] Having defined the hereinbefore legal concepts– it is vital to note that– the law of restitution is the law relating to all claims, quasi-contractual or otherwise, which are founded on the principle of unjust enrichment … this view casts a net very wide. This account cuts across the boundaries which traditionally separate law from equity. Topics from such diverse fields as, for example, trusts, admiralty, and many branches of commercial law; and we have considered proprietary as well as personal claims have been included. Indeed, it is our belief that J8 only through the study of Restitution in its widest form can the principle underlying the subject be fully understood1. [42] The turn of the herein notion of restitution from merely being an academic driven ideation– was put beyond question in 1991 when the House of Lords in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548. gave its judicial blessing by recognising a claim for restitution based on unjust enrichment. This was complimentary to decisions already adopted by other Commonwealth jurisdictions who were in fact ahead on this measure, i.e., See Deglman v Guaranty Trust (1954) 3 DLR 785 (Canada); Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 (Australia). [43] 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 re in 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. Was the enrichment at the claimant's expenses? iii. Was the enrichment unjust? iv. Are there any defences? [44] 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.” [45] Nevertheless, while this case may have all– the bells and whistles and at a glance hold out for unjust enrichment and restitution. The same is nary about unjust enrichment and restitution per se. [46] What is of great moment here and should not be lost sight of, is that this issue is loosely tied to the notion and or legal remedy of restitution, which issue is simply– the legality of levying distraint on a defaulting tenant as did the 1st and 2nd defendant on the plaintiff (PW1). 1 Robert Goff and Gareth Jones, The Law of Restitution (London: Sweet & Maxwell, 1966) at p v. J9 [47] Further, in resisting the temptation to lean towards being discursive and get on with issues that are collateral to the subject in question. I will plainly spell out that– the law which governs relations subsisting between tenants and landlords is– the Rent Act, Chapter 206 of the Laws of Zambia, whose preamble provides that: … “An Act to make provision for restricting the increase of rents, determining the standard rents, prohibiting the payment of premiums and restricting the right to possession of dwelling- houses, and for other purposes incidental to and connected with the relationship of landlord and tenant of a dwelling-house.” [48] Thusly– it is without question that the Act in question is germane and or applicable to this case, as can be seen from section 3(1) of the same, which provides: … Subject to the provisions of subsection (2), this Act shall apply to all dwelling-houses in Zambia, whether or not the terms of the letting of such dwelling-houses include the use in common with the landlord or other persons authorised by him of other rooms in or amenities of or portions of the building of which the said dwelling- house forms a part or the grounds or gardens immediately adjacent thereto, and whether or not the terms of the letting include a provision for services or the use of furniture. (Emphasis mine) [49] In view of the foregoing– I cannot abandon myself to simply adopting what the plaintiff and the defendants have submitted, as that would be tantamount to me taking a very dim and parochial view of the issue herein. And doing that would be a glaring omission on my part– with the potential to inhibit justice and the proper development of jurisprudence. [50] And to assuage the sceptics– my position is buttressed by the Supreme Court’s holding in Savenda Management Services v Stanbic Zambia Limited (Selected Judgment No. 10 of 20 18), which is in the vicinity of– a judge should not confine his submissions to merely those of the parties; the same must tower beyond the submissions of the parties and interrogate the law and make reference to provisions of the law that have not been referred to by the parties. J10 [51] In the premises– I will not confine myself to the kneel-high appreciation of the facts and law, as evinced by the parties herein, but will call on much of my legal prowess so as to illumine and guide the parties herein. Determination [52] I have carefully considered and applied my mind to the facts and law herein. [53] It goes without saying that– it is within my province as a trial court to weigh the evidence before me and make findings of fact. While ascription of probative value to evidence of witnesses is pre-eminently the business of the court, there is in my view, no obligation on my part to bear evidence out that is plainly extraneous to the issues for determination. [54] With that said– I find the documents adduced by DW1 and DW2 marked “MK1”and “MK2”to be exiguous, as the same does not comport with the matter at hand. And as a consequence, I discount the said evidence for want of merit. [55] I hold the view that, one cannot derive a benefit from an impropriety implicit though it may be; and not to put too fine a point on– even when the same is birthed from a mistaken belief that one was acting within the confines of the law, as is the case in casu with the 1st and 2nd defendants. [56] And as trial Magistrate, I need to avoid making considerations extraneous to the law. Therefore, while I sympathize with the 1st and 2nd defendant, I cannot in the interest of justice and good conscience lend countenance to the practice of illegal distress, as doing so would be foisting values of bad faith on society and sponsoring an insalubrious regard for the law. [57] I call to aid in re The Attorney General v. Nawakwi (Selected Judgment No. 16 of 2016) the Supreme Court opined that courts should not be swayed by sympathy into making moral judgments. Additionally, the apex court held in re Zambia Revenue Authority v. Post Newspapers Limited (2016) (1) ZR 394, as follows: we wish to add that such J11 judgments deviate from the rule of law, the principle which endures consistency, certainty, uniformity, fairness in the delivery of justice. Thus, as a lower court I cannot depart from those precedents without appearing to lose faith in the doctrines of stare decisis and judicial precedents which are intended to ensure certainty and stability in the decisions of courts. (Emphasis mine) [58] This I say, notwithstanding– the righteous intent that might have possessed the defendants and enlivened them to champion the crusade– to unlawfully levy distress with the hope of recovering what might have been a just entitlement on their part. [59] Let me be quick to mention here that– intentions however noble are not a substitute for legislative dictates and or procedure. The defendants acted with wanton disregard, when they colonized the plaintiff’s dwelling. This move was altogether wrong and not in keeping with the dictates of the Rent Act2, Cap. 206 of the Laws of Zambia, as per section 14, which enacts as hereunder: ... “No distress for the recovery of rent in respect of any premises shall be levied except with the leave of the court”. (Emphasis mine) [60] Purposefully, the said provision is couched in mandatory terms and not left to the discretion of the landlord nor does it give the same latitude to act willy-nilly. [61] In Black's Law Dictionary, “Shall” is given the following import: … “as used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall”, is a word of command and one which has always or which must be given compulsory meaning.” (Emphasis mine) [62] In re Independent School Dist v Independent School District, 170 N. W.2d 433, 440 (minri. 1969), it was held as follows: 2 An Act to make provision for restricting the increase of rents, determining the standard rents, prohibiting the payment of premiums, and restricting the right to possession of dwelling-houses, and for other purposes incidental to and connected with the relationship of landlord and tenant of a dwelling-house. J12 … “When used in statutes, contracts or the like, the word “shall”, is generally imperative or mandatory.” (Emphasis mine) [63] Further, In the case of The People v O'Rourke, 124 Cal. App 752, 759 (Cal App. 1932), it was put as follows: … “In common or ordinary parlance, and in its ordinary signification, the term “shall”, is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced…” (Emphasis mine) [64] En passant– granted that, the 1st and 2nd defendant did indeed seek permission from PW2, and as a consequence the same were accorded access to the premises in question, the said permission would not to itself have legalized the levying of distress on the plaintiff. [65] And as to the allusion by the 1st defendant, that they had spoken to a police officer prior to them effecting distraint on the plaintiff– I will maintain here that– the epidemic and indiscriminate harvesting of legal advice from police officers particularly on civil issues is ill-advised and ill-conceived. And while my view may be received in certain quarters as not being consummate, it is however, impeccably true for the 1st and 2nd defendant, as the same took the advice by the police officer on trust. [66] And to coin a phrase– “not all colourless filtrations are drinking water”– thusly, I encourage 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. [67] 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 J13 legal practitioners. And I will go out on a limb and say– I do not endorse such a practice, as it is pernicious to say the least. [68] Finally, I nod sagely with the position tacitly advance by the plaintiff that, the defendants were not under the aegis of the law when they levied distress on the house in question, and should not be seen deriving a benefit from this impropriety. [69] To re-iterate, the defendants levied distress without the blessing of the of the law. And thus, this court cannot admit of an illegal levy of distrain without misstating, notwithstanding the poignant entreaties made by the 1st and 2nd defendant. [70] Thus, seeing as the extant legislation does not provide for levying of distress without approval or leave of court. It is my considered view, that the 1st and 2nd defendant cannot then derive a benefit from an illegality. The inevitable corollary of such an action is that the plaintiff shall recoup all the effects seized as security for payment and that 1st and 2nd defendant are to make full restitution of the goods in question to the plaintiff forthwith. [71] It is worth noting however, that this decision does not bar the 1st and 2nd defendant from pursuing a bona fide claim against the plaintiff, as this Judgment does not absolve the plaintiff from paying his dues should he be owing. [72] All parties have the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 22ND JUNE, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J14