Gift Chansa v Saudi Mohamed (2023/SID/71) [2023] ZMSUB 19 (14 September 2023)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SID/71 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN GIFT CHANSA PLAINTIFF AND SAUDI MUHAMED DEFENDANT Before: Hon. Deeleslie Mondoka For the Plaintiff For the Defendant : : In person In person JUDGMENT CASES REFERRED TO: i. ii. iii. iv. DAVID CHIYENGELE AND OTHERS V. SCAW LIMITED SCZ JUDGMENT NO. 2 OF 2017; BARCLAYS BANK ZAMBIA PLC V. PATRICIA LEAH CHATTA CHIPEPA (SELECTED JUDGMENT NO. 16 OF 2017); MAPPOURAS V. WALDRONS (2002) ALLER D 299; HOLMES LIMITED v BUILDWELL CONSTRUCTION COMPANY LIMITED (1973) Z. R. 97 (H. C.); v. vi. COLGATE PALMOLIVE (ZAMBIA) INC. APPELLANT AND ABLE SHEMU CHUKA AND 110 OTHERS SCZ APPEAL NO. 181 of 2005; PRINTING AND NUMERICAL REGISTERING COMPANY VS. SIMPSON (1875)) LR19 EQ 462; vii. ZIMBABWE ELECTRICITY SUPPLY AUTHORITY VS MAPOSA (1992) 2 ZLR 452; viii. ZAMBIA REVENUE AUTHORITY V HITECH TRADING COMPANY LIMITED ix. x. xi. xii. (2001) Z. R 17; THE MEDIANA [1900] AC, 113; SIBONGO V SHANKANGA (1969) ZR 149 (HC); SEMPRA METALS V HMRC 12007J 4 ALL ER; KABWE TRANSPORT COMPANY LIMITED V. PRESS TRANSPORT (1975) LIMITED: (1984) Z. R. 43; xiii. MANFRED KABANDA AND KAJEMA CONSTRUCTION V. JOSEPH KASANGA: SCZ JUDGMENT NO. 2 OF 1992; xiv. CHIBUYE V. ZAMBIA AIRWAYS CORPORATION LIMITED: SCZ JUDGMENT NO. 2 OF 1986; xv. FINANCE BANK ZAMBIA LIMITED AND MAHTANI V. SIMATAA SIMATAA, SCZ SELECTED JUDGMENT NO. 21 OF 2017; xvi. FIDELITY COMMERCIAL BANK LIMITED V KENYA GRANGE VEHICLE INDUSTRIES LIMITED CIVIL APPEAL NO 61 OF 2013; xvii. BOC GASES PLC V PHESTO MUSONDA (2005) Z. R. 119; xviii. PREMESH BHAI MEGAN PATEL V REPHIDIM INSTITUTE LIMITED (2011) Z. R. 134 VOL. 1; xix. DAVIS V LISLE [1936] 2 ALL ER 213; xx. LITIA LITIA V. ALEXANDER M. LWATULA SCZ APPEAL NO. 105 OF 2011, and xxi. M’MEMBE AND POST NEWSPAPERS LTD (IN LIQUIDATION) V MBOOZI AND OTHERS APPEAL 7 OF 2021) [2022] ZMSC 4. OTHER MATERIALS REFERRED TO: i. ii. iii. iv. v. vi. vii. THE CONSTITUTION, CHAPTER 1 OF THE LAWS OF ZAMBIA; G. MONAHAN ON ESSENTIAL CONTRACT LAW, 2ND EDITION, CAVINDESH PUBLISHING (AUSTRALIA) PTY LIMITED 2001; CHITTY ON CONTRACTS, VOLUME 1(GENERAL PRINCIPLES) 26TH EDITION, SWEET & MAXWELL, LONDON (1999) BY BEALE H G; LAW OF CONTRACT, 7TH EDITION BY P. RICHARDS, PEARSON LONGMAN, 2006; TREITEL ON THE LAW OF CONTRACT, EDWIN PEEL, 13TH EDITION, 2011; HALSBURY'S LAWS OF ENGLAND (CUSTOM AND USAGE) VOLUME 12(1); CHITTY ON CONTRACTS, GENERAL PRINCIPLES, SWEET AND MAXWELL; viii. HARVEY MCGREGOR, MCGREGOR ON DAMAGES (15TH EDITION), and ix. PHIPSON ON EVIDENCE 12TH EDITION 12TH EDITION 1976. INTRODUCTION [1] This Judgement emanates from a claim wherein the plaintiff sought a refund of K4, 000.00 being part payment the plaintiff paid towards a set of sofas procured at the defendant’s store––which seats the defendant went to repossess at the plaintiff’s house. [2] The cradle of the matter being that––the defendant on the 29th day of March, 2023, did enter upon the plaintiff’s abode and without her consent did get the sofas in question in her absence. [3] Further, the plaintiff sought a catch-all relief––of any other reliefs the court may deem fit along with an order for costs incidental to the suit herein. [4] The herein matter was commenced on 30th August, 2023, by way of writ of summons. BACKGROUND FACTS THE PLAINTIFFS’ CASE [5] Hereinafter is a distillation of the facts in support of the claim. [6] On 7th September, 2023, when PW1 stood trial––it was PW1’s testimony that––the couch in question was retailing at K12, 000.00. [7] PW1 at the stroke of the pen did execute an instrument binding her with the defendant at his distribution point––whereat she made an upfront fee of K2, 000.00 to secure the sofas. [8] Further, PW1 intimated that she received a phone call from the defendant whilst in Kasama asking that he be paid his debt. Following the said call, PW1 elected to remit the second instalment using mobile money to the tune of K2, 000.00. [9] PW1 indicated in court that, she was beleaguered by what could be styled––a fleeting financial crunch and could not make her payments, as and when they fell due, which goings-on occurred not long after making her initial deposit of K2, 000.00 on 29th March, 2023. Consequently, in the month August, 2023––careworn by the PW1’s behaviour, the defendant indicated that he wanted the sofas in question back and dismissed any overtures of concessions from PW1. [10] PW1 testified that, upon arrival at her home, she was gnawed by the fact that the defendant had forcibly and without her consent removed the chairs in question and took them back to his shop. This development went beyond a joke––thusly, enthusing PW1 to commence this action. [11] During cross-examination, PW1 fought her corner, and it was increasingly apparent that PW1 was made of sterner stuff, as she maintained unflinchingly that the sofas were realized at K12, 000.00 and that PW1 had hitherto made a payment of K4, 000.00. [12] Nothing of note was advanced in re-examination. THE DEFENDANT’S CASE [13] The defendant, a vicenarian of Muslim persuasion gave a sworn testimony hereunder as DW1. [14] It was DW1’s testimony that PW1 got the sofas in question in March, 2023, at a consideration of K14, 000.00, at DW1’s shop in the central business district (CBD) of Mbala in the Northern Province of Zambia. [15] DW1 related that he and PW1 did enter into an agreement for the purchase of a set of sofas––consequently, an instrument evincing the transaction was consummated by PW1 on the 29th day of March, 2023, to which PW1 made an initial deposit of K2, 000.00 and indicated that she was committed to servicing the debt of K12, 000.00 within a six (6) months stint at instalments of K2, 000.00 each month, and as a result, DW1 put the seats in question on the slate for PW1. DW1 tendered into evidence the agreement in question and the same was marked aptly as “SM1”. [16] After about a month––DW1 elected to call PW1 and nudge the same to make good on her undertaking––to pay the second instalment towards the sofas for that month being K2, 000.00, but PW1’s number was unreachable. On account of PW1’s evasive manoeuvres, DW1 was steamrollered into making frantic attempts at securing his debt when it was crisp to DW1 that PW1 was leading him a merry dance. [17] DW1 expatiated at length that, PW1 had hitherto welched on her obligation to settle the debt in question and that DW1 was dragooned into going on a hunt for PW1 who from April, 2023, had been moving from house to house evading her obligation. [18] It was DW1’s testimony that he had visited three (3) different houses where PW1 was reported to have been staying, but to no avail. By a stroke of luck––month end of August, 2023, DW1 located a house where PW1 used to stay, but the move was abortive. [19] In parenthesis, DW1 indicated to PW1 that he would go and collect the chairs in question on account of failure to make payment for the same. Fortunately for DW1, he found a child who was kind enough to direct him to where PW1 was residing, and DW1 took the liberty of leading himself into PW1’s house; retrieved the chairs and brought them back to his store where he put the same on sale at K5, 000.00. [20] Of great moment, is the fact that DW1 was impelled to act without the bidding of the police and blessing of the court because both the police and some officers at the court were to put it loosely––insensible to his cause. [21] During cross-examination, the rejoinder by DW1 put PW1 in a barrel, and as a consequence it was unimpeachably established that the sofas were retailing at K14, 000.00 and that DW1 was not in receipt of the K2, 000.00 which PW1 purported to have paid as a second instalment. Further, it was established that PW1 and DW1 had a collateral orally agreed that the balance of K12, 000.00 would be settled in six (6) months at K2, 000.00 monthly. Lastly, DW1 contend that PW1 only indicated to DW1 that she had financial challenges four (4) months inside her first payment. [22] Nothing was advanced in re-examination. UNDISPUTED FACTS [23] Having considered the evidence herein, I find the following to be common cause: (i) that PW1 and DW1 had an agreement and or contract for the sale of sofas; (ii) that PW1 had made an initial deposit of K2, 000.00, which amount was paid on the 29th day of March, 2023; (iii) that DW1 did enter the dwelling house of PW1 without her consent, and that DW1 did enter the dwelling of PW1 and he did bring the sofas from PW1’s abode to his shop; (iv) that the plaintiff (PW1) had used the sofas from March to August, 2023; (v) that there had been some shifting on the part of the plaintiff (PW1). DISPUTED FACTS [24] Having comb through the facts herein, I find the hereinafter facts to be in dispute: (i) that DW1 sold PW1 the sofas at a consideration of K14, 000.00; (ii) that PW1 has hitherto paid two deposits altogether aggregating K4, 000.00. ISSUES FOR DETERMINATION [25] I find the hereinafter issues fundamental and needing to be resolved: (i) firstly, whether or not there was valid contract between PW1 and DW1 for the sale of sofas; (ii) secondly, whether PW1 is at law entitled to a refund of K4, 000.00 as per the writ of summons; (iii) thirdly, whether or not the defendant is and or was in breach of contract and whether or not the same is liable to the plaintiff; (iv) and lastly, whether or not the plaintiff is entitled to other reliefs sought herein? ANALYSIS OF THE LAW AND FACTS [26] PW1 and DW2 in their dealings had what is in essence is styled––a contract. Hereunder are some fundamentals about contracts. [27] Firstly, it is crucial from the outset to define what a contract is? Well. According to the Learned Author of ESSENTIAL CONTRACT LAW, a contract is defined as: “An agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties. A legally binding agreement made between two or more persons by which rights are acquired by one or more to acts or forbearances on the part of the other or other. (Emphasis supplied) [28] Further, the according to the Learned Author of ESSENTIAL CONTRACT LAW1 at page 27 that: “A valid contract is a contract that the law will enforce and creates legal rights and obligations. A contract valid ab initio (from the beginning) contains all the three essential elements of formation: Agreement (offer and acceptance). Intention (to be bound by the agreement). Consideration (for example, the promise to pay for goods or services received”. (Emphasis supplied) [29] Secondly, what issues are of concern relating to performance of a contract? To help unpack this notion, I shall consider the Learned Authors of CHITTY ON CONTRACTS2 who stated the general rule relating to the performance of a binding contract at paragraph 22-001 as follows: “The general rule is that a party to a contract must perform exactly what he undertook to do. When an issue arises as to whether performance is sufficient, the Court must construe the contract in order to ascertain the nature of the obligation (which is a question of law); the next question is to see whether the actual performance measures up to that obligation (which is a question of ‘mixed fact and law in that the Court decides whether the facts of the actual performance satisfy the standard prescribed by the contractual provisions defining the obligation”. (Emphasis supplied) 1 G. MONAHAN ON ESSENTIAL CONTRACT LAW, 2ND EDITION, CAVINDESH PUBLISHING (AUSTRALIA) PTY LIMITED 2001 2 CHITTY ON CONTRACTS, VOLUME 1 (GENERAL PRINCIPLES) 26TH EDITION, SWEET & MAXWELL, LONDON (1999) BY BEALE H G [30] To boot––the Learned Author of LAW OF CONTRACT3, P. Richards on the effect of non-performance of a binding contract who states at page 113 a s follows: “Where a person fails to perform their side of the contract then subject to the mitigating factors, they will be in breach of contract. A breach of contract will always give rise to a claim in damages, no matter how minor or serious the nature of the breach. Whether an innocent party is entitled to treat the contract as at an end, so that they can treat the contract as discharged, depends on whether the breach is so serious that it goes to the root of the contract, that is there is a breach of a primary obligation”. (Emphasis mine) [31] Further, at page 319, the Learned Author of LAW OF CONTRACT stated thus on the effect of non-performance of a contract: “The innocent party has the right to elect to accept the repudiation as discharging the contract with the result that all future obligations under the contract come to an end, as do the obligations of the guilty party. Once the innocent party has decided to accept the repudiatory breach that party is entitled to recover for the loss of the benefit that the performance would have brought. The loss of these benefits accrues at the time of the repudiations”. (Emphasis supplied) [32] Maybe the more pertinent question herein would be––whether there was a valid contract between the plaintiff (PW1) and the defendant (DW1)? In this regard, I find it necessary to restate that a contract is an enforceable agreement and the Learned Author of the LAW OF CONTRACT4, Edwin Peel, in the 13th Edition, the position at page 1, states as follows: 3 LAW OF CONTRACT, 7TH EDITION BY P. RICHARDS, PEARSON LONGMAN, 2006 4 TREITEL ON THE LAW OF CONTRACT, EDWIN PEEL, 13TH EDITION, 2011 “Contract as enforceable agreement: A contract is an agreement giving rise to obligations, which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties”. [33] From the evidence herein, the plaintiff (PW1) agreed to buying and defendant (DW1) agreed to selling sofas at a consideration affixed in the written instrument at a K2, 000.00 monthly instalment for a six (6) months stint by way of their collateral oral agreement. [34] In view of the above, it goes without saying that, a contract gives rise to obligations that are enforceable or recognized by law. Further, that contractual obligations arise from the agreement of the parties concerned––case in point, PW1 and DW1 herein. It is trite law that for a contract to binding, there must be an offer and acceptance, an intention to create legal relations and consideration, as was patently the case in the agreement entered upon between the plaintiff and defendant. [35] Another issue perhaps of pertinence, which arises is––what are the consequences for breach of contract, either by the plaintiff or defendant? Principally, when a breach of contract occurs––a party affected is entitled to damages and in a case of serious breach, a party can terminate a contract. [36] I call to aid the Learned Author Edwin Peel on the LAW OF CONTRACT states at page 828 paragraph 17-049 that: “A breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing. A breach of contract may entitle the injured party to claim damages...” (emphasis supplied) [37] Lastly, it is not in dispute that there was a subsisting contract between PW1 and DW1 for the sale of sofas, which instrument was executed by PW1 on the 29th day of March, 2023. CHITTY ON CONTRACTS, GENERAL PRINCIPLES, SWEET AND MAXWELL, on page 747 where it states as follows: “The cardinal presumptions are that the parties have intended what they have in fact said, so that their word must be construed as they stand. That is to say the meaning of the document or of a particular part of it is to be sought in the document itself. One must consider the meaning of the words used, not what one may guess to be the intention of the parties”. (Emphasis mine) DETERMINATION [38] I have meticulously considered and applied my mind to the facts and law herein, and I am persuaded that this case roves within the corridors of contract law. [39] At this point, I have it on highest authority that––the plaintiff and defendant did on the 29th day of March, 2023, enter upon an agreement for the purchase of sofas, which sofas the plaintiff collected from the defendant’s shop upon remitting an initial deposit of K2, 000.00. [40] This I say, notwithstanding the fact that the agreement between the PW1 and DW1 was bereft of the thoroughgoing and intricate trimmings that make for an exhaustive written contract outfitted with boilerplates and other legal nuances, but it is to itself an agreement nonetheless. [41] In re COLGATE PALMOLIVE (ZAMBIA) INC APPELLANT AND ABLE SHEMU CHUKA AND 110 OTHERS SCZ APPEAL NO. 181 of 2005; the Supreme Court sympathised with the legal case of PRINTING AND NUMERICAL REGISTERING COMPANY VS. SIMPSON (1875) LR19 EQ 462, wherein Sir George Jessel observed as follows: … “If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice”. (Emphasis mine) [42] And yet, public policy itself does in some instances restrict freedom of contract for the public good. [43] Notwithstanding, the parties to a contract have the opportunity to determine an outcome satisfactory to all. Little wonder, therefore, that the policy of the law is to uphold and enforce agreements if they are fairly made and are not in contravention of some law or other overriding public policy5. [44] As hereinbefore established, the fundamentals of contract law dictate that––a violation of an agreement, being a breach of contract, entitles a party who believes that he or she has been harmed by such breach to bring an action for damages for the harm he or she allegedly suffered from the breach. It is important to recollect the principle of the law that where there is a right, there is a remedy. In words of one syllable–a right would be of little value if there was no remedy available in the event of its infringement. A breach of contract by one party necessarily entails an infringement of a contractual right of the other party. A remedy is given as a means of vindicating the right, or as pecuniary compensation in lieu of performance6. (Emphasis supplied) [45] There is, no doubt, public interest in disputes being brought to a binding conclusion by agreement. There must be strong reasons before a party is allowed to resile from an agreement freely reached. This is so whether the agreement could have been better or differently drafted or more fairly balanced between the parties. [46] It is obvious that PW1 and DW1 are equally bound by the terms of agreements and that the same should not be ignored or breached 5 FINANCE BANK ZAMBIA LIMITED AND MAHTANI V. SIMATAA SIMATAA, SCZ SELECTED JUDGMENT NO. 21 OF 2017 6 IBID merely because one party regrets the agreement he had reached. That would be unfair to the other party and it would undermine the sanctity of agreements, and more generally the public policy which encourages contractual relations. Both at law and in practice––It is not uncommon that one side or the other, and sometimes both, regret an agreement after it has been arrived at and concluded but such hindsight does not afford grounds for resiling from the agreement7. [47] And as a point of information––the Supreme Court in re ZAMBIA REVENUE AUTHORITY V. TIGER LIMITED ZAMBIA DEVELOPMENT AGENCY SCZ Selected Judgment No.11 of 2016 gave a bright line rule to the idea of public policy, never mind that the decision herein adverted to an arbitral award, when it sympathized with in re ZIMBABWE ELECTRICITY SUPPLY AUTHORITY VS MAPOSA (1992) 2 ZLR 452 (S), wherein the court asserted in the vicinity of: an outcome that constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible or fair-minded person would consider that the conception of justice in Zambia would be intolerably hurt by the outcome was contrary to public policy. (Emphasis supplied) [48] Broadly speaking, the herein idea speaks to principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society. To wit––courts sometimes use the term to justify their decisions, as when declaring a contract void because it is, i.e., “contrary to public policy”. (Emphasis supplied) [49] Curiously, PW1 herein contended that the contract entered into between the same and DW1, was for the purchase of sofas, at a consideration of K12, 000.00 and that she has hitherto made a 7 FINANCE BANK ZAMBIA LIMITED AND MAHTANI V. SIMATAA SIMATAA, SCZ SELECTED JUDGMENT NO. 21 OF 2017 remittance of K4, 000.00 as payment for the chairs in question, which allegation DW1 finds preposterous, as it is not in keeping with the instrument that PW1 signed on 29th March, 2023. [50] I inclined to the submission proffered by DW1 that, PW1 has not given a scintilla of evidence upon which to frame her demand. PW1 exiguously claimed that the sofas were retailing at K12, 000.00 and that she had hitherto remitted the sum of K4, 000.00. [51] In re KUNDA V. KONKOLA COPPER MINES PLC (APP NO. 48 OF 2005), the Supreme Court guided on who bears the burden of proof in a civil matter when it said: “He who alleges must prove that allegation. This principle is so elementary, the court has had on a number of occasions to remind litigants that it is their duty to prove their allegation, of course it is a principle of law that he who alleges must prove the allegations”. (Emphasis supplied) [52] And in re KUNDA V THE ATTORNEY GENERAL (1993-1994) ZR 1, it was held inter alia that: … “failure by the plaintiff to adduce evidence to quantify the net loss must react against her. The Supreme Court has frequently lamented these failures by the plaintiff, and the practice of expecting courts to make inspired guesses must be discouraged”. (Emphasis mine) [53] Further, in the case of CHRISTABEL NGIMBU V PRISCA CHISENGO KUCHEKA AND ELECTORAL COMMISSION OF ZAMBIA CCZ SELECTED JUDGMENT NO. 2 OF 2018 28, the Constitution Court cited with approval the Supreme Court decision in the case of MAZOKA AND TWO OTHERS V MWANAWASA AND TWO OTHERS (2005) Z. R. 138 wherein it is stated that: Where a plaintiff .... makes any allegation, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case. (Emphasis mine) [54] Consequently, the arguments proffered by PW1 threw me in for a loop– and I am not about to conspire against the entire structure of legal rules, which rules are fixed within rigidly narrow parameters, just because the plaintiff finds herself in the unique position of adverting a whale of evidence by parol with nary a shred of conventional evidence. [55] Further, the particularity of the case reveals that––the agreement between the plaintiff and the defendant was both oral and written. Oral insofar as the payment term of K2, 000.00 per month is concerned, whose payment was staggered over a six months period. Fortuitously, in PHIPSON ON EVIDENCE 12TH EDITION at page 798, the following observation was made: (i) additional terms where a contract, not required by law to be in writing, purports to be contained in a document which the court infers was not intended to express the whole agreement between the parties, proof may be given of any omitted or supplemental oral term, expressly or impliedly agreed between them before or at the time of executing the document, if it be not inconsistent with the documentary term. The inference that the writing was, or not, intended to contain the full agreement may be drawn not only from the document itself, but from extrinsic circumstances. (ii) collateral agreements and warranties moreover, although there exists a contract purporting to be fully expressed in writing, whether required by law to be so or not, proof may be given of a prior or contemporaneous oral agreement or warranty, not inconsistent with the document, and which forms part of the consideration for the main contract. (Emphasis supplied) [56] In re HOLMES LIMITED V BUILDWELL CONSTRUCTION COMPANY LIMITED (1973) Z. R. 97 (H. C.) wherein it was held inter alia that: where the parties have embodied the terms of their contract in a written document, the general rule is that extrinsic evidence is not admissible to add to, vary, subtract from, or contradict the terms of the written contract. There are however exceptions to this rule and learned Counsel for plaintiffs has relied on one of the exceptions that extrinsic evidence maybe admitted to show that the instrument was not intended to express the whole agreement between the parties (Chitty on Contract 23rd Edition, Vol. I, para. 620.). (Emphasis supplied) [57] And in BOC GASES PLC V PHESTO MUSONDA (2005) Z. R. 119, I was argued that: It is a fundamental rule of English law that extrinsic evidence is not admissible to vary or contradict the terms of the written document. To this basic proposition an important exception exists. Where owing to some error a written document fails to record accurately the terms of the parties’ true agreement, equity will rectify the document to make it accord with their agreement6… It is trite law that Parol Evidence rule is not an absolute rule, but is subject to numerous exceptions among which is the case brought before Court seeking an order that a document should be rectified to give effect to the true intentions of the parties at the time of the contract. (Emphasis supplied) [58] From the facts and or evidence borne out at trial it is crisp that the herein contract dated 29th March, 2023, for the purchase of sofas entered upon by PW1 and DW1 was in verity not intended to express the entirety of the parties’ agreement, and as such the same had collaterally and by implication agreed that the plaintiff would set a K2, 000.00 as monthly instalment against a balance of K12, 000.00, over a six (6) months stint. [59] Part of what the plaintiff was ventilating and or giving voice to was the fact that DW1 entered her house without her approval and collected the sofas in question. In view of PW1’s argument, it is fundamental to note that in re DAVIS V LISLE [1936] 2 ALL ER 213, it was held that: “It appears to be very important that it should be established that nobody has a right to enter premises except strictly in accordance with authority.” (Emphasis supplied) [60] Fit for purpose is what is provided in THE CONSTITUTION, CHAPTER 1 OF THE LAWS OF ZAMBIA in Article 17: “except with his own consent, a person shall not be subjected to the search of his person or his property or the entry by others on his premises”. The chief justice her ladyship, Ireen Mambilima, as she then was in re LITIA LITIA V. ALEXANDER M. LWATULA SCZ APPEAL NO. 105 OF 2011 commenting on article 17 of the constitution had the following to say: Article 17 provides for protection to privacy of home and other property. By the said Article, the Constitution seeks to protect citizens from unwarranted invasion of their premises by persons and or authorities. (Emphasis supplied) [61] En passant––permit to maintain here that, observations on obvious constitutional provisions as I determine disputes of a non-constitutional nature, is not, in my view, necessarily averse to the letter and spirit of the Constitution nor would it encroach or usurp the jurisdiction of the Constitutional Court. This I say as a rider to the Supreme Court’s position in re RICHARD NSOFU MANDONA V. TOTAL AVIATION AND EXPORT LIMITED ZAMBIA NATIONAL COMMERCIAL BANK PLC. ZAMBIA NATIONAL OIL COMPANY LIMITED (In Liquidation) INDENI PETROLEUM REFINERY COMPANY, SCZ Appeal No. 82 of 2009. [62] In the premises––am roundly persuaded that the DW1’s action of entering upon PW1’s dwelling and repossessing the sofas was reprehensible to say the least. [63] DW1 had no right to indelicately enter upon the dwelling of the plaintiff without her consent––DW1’s inability to take the issue in his stride was all wet––notwithstanding the fact that he was possessed by righteous intent which impelled him take the steps to secure his debt– not to put too fine a point it. It is writ large that––many a deleterious carrying-on is committed on the basis of what seems to be an innocent move. [64] For the avoidance of doubt, the plaintiff herein is not entitled to the refund claimed, as the same has not borne out evidence proving that the same merits the monies in question. The plaintiff merely alleged that the same was entitled to a refund of K4, 000.00 without so much as adduce evidence to establish her claim, i.e., proof of payment for the second instalment of K2, 000.00 the plaintiff alleged to have paid via mobile money. [65] This being the case––It seems a trifle unjust to leave the plaintiff (PW1) without legal redress for the legal injury or wrong which had been occasioned to her by the defendant. It is trite law that––‘failure to prove the loss/damage which was occasioned by a defendant should have affirmed the infraction of the plaintiff’s legal right by granting them nominal relief in the form of nominal damages whose purpose was explained by Lord Halsbury, L. C. in The Mediana, in the following terms: “Nominal damages' is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed8”. (Emphasis supplied) [66] Furthermore, Professor Harvey McGregor9, the author of the legendary Practitioners' and self-titled text, MCGREGOR ON DAMAGES (15TH EDITION) has stated, at paragraph 396, that: “technically, the law requires not damage but an injury or wrong upon which to base a judgment for the Plaintiff, and therefore an injury, although without loss or damage, would entitle the Plaintiff to judgment”. [67] The Supreme Court in re DAVID CHIYENGELE AND OTHERS V. SCAW LIMITED SCZ JUDGMENT NO. 2 OF 2017 and BARCLAYS BANK ZAMBIA PLC V. PATRICIA LEAH CHATTA CHIPEPA (SELECTED JUDGMENT NO. 16 OF 2017) awarded nominal damages of K500 to the successful parties. Further, in re FINANCE BANK ZAMBIA LIMITED and MAHTANI v. SIMATAA SIMATAA, SCZ Selected Judgment No. 21 of the Supreme Court sympathized with MAPPOURAS V. WALDRONS (2002) ALLER D 299 (para 15), when it explained that it owed it to the parties to explain that as was articulated by Kay L J nominal damages are ‘not intended to compensate for anything at all’ but are awarded simply to ‘mark the fact that there has been a breach of contract’. (Emphasis supplied) [68] In view of the above––I see no convincing rationale upon which to award nominal damages to the plaintiff, seeing as there has been no clear-cut breach of contract on the part of defendant. And while there might have been a caper on the part of the defendant occasioned by the act of entering upon the premises of the plaintiff and collecting the chairs in question, which act I must say, does not speak to breach of contract per se, but gives an inkling of trespass! When viewed in the round––it was the plaintiff herein who breached the accord between 8 THE MEDIANA [1900] AC, 113 9 HARVEY MCGREGOR, MCGREGOR ON DAMAGES (15TH EDITION) her and the defendant, when she violated the payment terms of K2, 000.00 per month payable over a six (6) months stint. [69] More to the point, in re ATLANTIC BAKERY LIMITED V ZESCO LIMITED SELECTED JUDGMENT NO. 61 OF 2018, the Supreme Court held among other things that: … “a court is not to decide on an issue which has not been pleaded. Put differently, a court should confine its decision to the questions raised in the pleadings. It can thus not grant relief which is not claimed. Litigation is for the parties; not the court. The court has no business extending or expanding the boundaries of litigation beyond the scope defined by i.e., parties in their pleadings. In other words, a court has no jurisdiction to set up a different or new case for the parties”. (Emphasis mine) [70] Thus, as sympathetic as I am to the plight of the plaintiff––I cannot allay her concerns with an award for damages for the defendant’s trespass, which damages she has not pleaded, notwithstanding the orison–– “any other relief, the court will deem fit”. And having established that the plaintiff is not entitled to the refund of K4, 000.00 herein, I hereby dismiss the plaintiff’s claim––the inevitable corollary of my decision is that I find in favour of the defendant. [71] This I have done in the spirit of being even-handed; with the hope of making a stab at doing justice10––owing but not limited to the fact the sofas in question were used by the plaintiff from March to August, 2023; coupled with the fact that the same were being move from house to house at the instance of the plaintiff in an attempt to evade defendant––thus experiencing wear and tear from the said use and movement. 10 M’membe and Post Newspapers Ltd (In Liquidation) v Mboozi and Others Appeal 7 of 2021) [2022] ZMSC 4 [72] [73] Each party shall 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 14TH SEPTEMBER, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE