Mr. Lee Africa Investment Limited v Charles Mungalu and Anor (APPEAL 49/2023) [2024] ZMCA 316 (19 November 2024)

N THE COURT OF APPEAL FOR ZAMBIA [OLDEN AT NDOLA '::ivil Jurisdiction) APPEAL 49/2023 :ETWEEN: IR. LEE AFRICA INVESTMENT LIMITED APPELLANT ~ND :HARLES MUNGALU IARGARET MUNGALU 1 ST RESPONDEN1 2NDRESPONDENT Coram: Kondolo S. C., On 1 3 th November and 19th November, 2024 or the"Appellant: Mr G. Tembo- Messrs James & Doris Legal Practitioners or the Respondent: Mrs Linda K. Zimba & Mrs K. Moono- Messrs A. D. Gray JUDGMENT anda-Bobo, JA, delivered the Judgement of the Court. ase Referred to: Anderson Kambela Mazoka, Lt General Christon Sif apitembo, Godfre Kenneth Miyanda v. Levy Patrick Mwanawasa, The Electoral Commission c Zambia, The Attorney General (2005) Z. R. 138 (S. C.) Rapid Global Freight Limited v. Zambia Railways Limited Appeal Ni 216/2019 egislation Referred to: The Sale of Goods Act, 18 90 1. Corporate Finance Institute ((fg:orporatefinanceinstitute. com}, 2. Halsbury's Laws of England 4th Edition 3. Winfield and Jolowicz on Tort, 1 7th Edition, 4. Phillip S. Jones in General Principles of the Law of Torts, 2 nd Edition, 1964 5. Clerk and Lindsell on Torts, 12th Edition (1961) D INTRODUCTION L This is an appeal against the Judgment of Honourable Justi M. Mapani-Kawimbe delivered in the High Court at Lusaka < 27th September, 2022. The Notice and Memorandum of Appe were filed into Court on 1st November, 2022. ) BACKGROUND The antecedents to this appeal are that on 15th October, 20: the Appellant filed into the High Court a Writ of Summ01 accompanied by a Statement of Claim seeking the followi1 reliefs: r. Damages for Trespass to Goods; u. Damages for conversion and Detention; ur. Damages for loss of business; w. Interest on all sums found due; -J2- vi. Any other Order the Court may deem fit; .2 In the amended statement of claim dated 1st March 2022, t Appellant averred that by an invoice dated 30th August 202 the 2 nd Respondent purchased various roofing sheets ai supporting materials from the Appellant's company for the su of ZMW 17,666.00. A payment of ZMW 15,000.00 was ma1 towards the price, with a balance of ZMW 2,566.00 still unpaii 3 Due to a promotion generating high demand, there we delivery delays, and on 10th September 2021, several custome arrived at the Appellant's premises demanding their purchasi items. As a result, the Appellant was forced to opera intermittently while attempting to address pending deliveries. i On 17th September 2021, the 1st Respondent and his agen allegedly broke into the Appellant's shop, seizing stock ai: other items totalling ZMW 309,590.00. ; In his defence, the Respondent contended that on 30th Augu 2021, the Appellant raised invoice No. 1191 for the sale goods amounting to ZMW 17,666.00 to the 2 nd Responder who instructed the seizure of the Appellant's goods to enforce -J3- Respondents claimed these actions were necessary to preser the goods, as the Appellant's premises were accessible to t public. Save that no admission was made to the amou mentioned in the statement of claim. :> The 2 nd Respondent filed a counterclaim, 1n which sl claimed the following reliefs: z. Payment forthwith of the sum of ZMW 15,721.00 bei; money paid to the Appellant by the 2 nd Respondent 1 the price of goods under the contract between t, Plaintiff and the 2 nd Defendant; u. Damages for the inconvenience and mental anguish; Ill. Interest there on; w. Costs; v. Further and other relief as the court may deem fit. ) DECISION OF THE COURT BELOW The Learned Judge dismissed the Appellant's claims for lack merit in the Judgment delivered on 27 th September 2022. The lower court dismissed the Appellant's claims for conversic and detention of goods, finding that the 2 nd Respondent did n -J4- when the Appellant failed to deliver the 2nd Responden goods, she was prompted to go to the store in search of thei The court ruled that since the goods had been fully paid for, t 2 ndRespondent was legitimately entitled to her goods aJ therefore could not be said to have converted or detained t Appellant's goods. Additionally, the court held that the reme, of lien was available to the 2 nd Respondent. 3 Conversely , the court upheld the 2 ndRespondent's counterclru 2 nd Respondent had paid this amount, and that the Appellan failure to deliver the iron sheets on time entitled her to refund. ~ The court noted that the 2 nd Respondent had removed in sheets from her house in anticipation of the delivery of the in sheets purchased from the Appellant within a week. Thus , tl Appellant's f~lure to deliver the iron sheets entitled the 21 Respondent to damages for inconvenience. The court awardc the 2nd Respondent damages for inconvenience, to be assessc by the Deputy Registrar, along with costs. -JS- L Dissatisfied with the judgment, the Appellant advanced tl fallowing grounds of appeal: z. The Judge below erred zn law and fact when she found that the Appellant was required to deliver the paid goods to the 2 nd Respondent contrary to the evidence on record to the effect that the 2 nd Respondent had not paid the full purchase price and that the contract between the Plaintiff and the 2 nd Respondent was an instalment cash sale; u. The Judge below erred in law and fact when she found that the Respondents did not trespass and convert the Appellants goods contrary to the evidence on record and the pleadings of the parties by finding that the Respondent had a lien on the Appellant's property; zu. The judge below erred both in law and in fact when she found that the Appellant had not sufficiently adduced evidence to show the amount of goods collected by the Respondents contrary to the evidence on record and the pleading by the parties. -J6- 1 Counsel for the Appellant filed into Court Heads of Argume on 28 th February, 2023. In support of ground 1, Counsel for the Appellant submitt1 that the lower court failed to appreciate the evidence indicati1 the 2 nd Respondent's incomplete payment. 3 Regarding ground 2 it was argued that the 2 nd Respondent w, not entitled to collect goods due to non-payment, disputing tl existence of a lien. Additionally, that, the lower court's findi1 that the 2 nd Respondent had not trespassed and converted t] Appellant's goods should be reversed. ~ Regarding ground 3 the Appellant claimed that eviden proving the i terns collected was not disputed and should ha' been accepted by the lower court. We were accordingly refern to the case of Anderson Kambe la Mazoka, Lt Gener1 Christon Sifapitembo, Godfrey Kenneth Miyanda v. Le1 Patrick Mwanawasa, The Electoral Commission of Zambi1 The Attorney General, 1 where the apex court held that: "The functions of pleadings, is to give the notice of the cas€ which has to be met and to define the issues on which th€ court will have to adjudicate in order to determine the matter~ -J7- closed, the court has to take them as such." J ARGUMENTS IN OPPOSITION L In the Respondent's heads of argument, it was contended und Ground 1, that the judge below did not err in law or fact whc she found that the Appellant was required to deliver the pa goods to the 2nd Respondent after she paid the sum of ZM 15,700.00. Reference was made to the letter from tl Competition and Consumer Protection Commission on pa 202 of the Record of Appeal, which cautioned the general pub: against dealing with the Appellant, and the testimony of Am, Ngali Nsasali on page 259 of the ROA regarding the assertic that the Appellant had received overwhelming responses fro the public and eventually ran out of stock, while supplie could not handle the orders requested by the Appellant. Base on this, it was submitted that the Appellant failed to deliver tl goods to its shop and, therefore, to the 2 nd Respondent. Regarding ground 2, it was argued that the Respondents d not trespass or convert the Appellant's goods. It was argue that the record of appeal shows that other clients we -J8- Appellant's first witness in the lower court. That the witne testified that customers became unruly due to the non-delive of their goods, and the 2 nd Respondent simply collected t items that had been paid for, which she kept and later return to the Appellant. 3 It was further argued that the removal of the goods from t Appellant's premises by the 2 nd Respondent was lawful, in th she was owed money and the Appellant's goods were n damaged in any way. To support this argument, reference w made to Halsbury's Laws of England, 1 where it is stated tha "The gist of an action of trespass is the unlawful taking, removing, or damaging of personal chattels." ~ With regard to conversion, it was submitted that the ~ Respondent's act of merely keeping the goods of the Appella was not conversion, as it did not demonstrate an intention exclude the Appellant's right as the owner of the goods. It w: further submitted, with respect to the right of a lien, that tl 2 nd Respondent collected the goods from the Appellant as s] was exercising her right of lien against the Appellant. -J9- --- --- o-------- -, -- ----- - -- ·------ ---- ------ ---- - - - - - - - - - J ----c::,- ,- - was on firm ground in finding that the Appellant had n sufficiently adduced evidence to show the amount of goo, collected by the Respondents. · It was argued that none of tl Appellant's witnesses testified as to what was loaded onto tl truck, while the 1st Respondent took an inventory of the goo 1 collected and even took photos. ) At the hearing, on 13th November, 2024, counsel for tl appellant, Mr. Tembo totally relied on the ROA and the heads argument filed on 28 th February, 2023. Mrs. Zimba, counsel f the respondent was granted ·leave to file heads of argument < which she relied. , In Reply, Mr. Tembo augmented on grounds 2, but al submitted with regard to trespass to goods, contending th courts must consider the goods in a twofold manner. That tl dispute is on the prices. That on the goods that were returne the court should find trespass. That for those goods that we not returned, the court should find that there was conversio That the assertion that no goods were converted is withff support as page 193 is clear on this. -J lO- 1 We have taken due consideration of the Record of Appeal, t grounds of Appeal and the Party's respective submissions. \ will address the grounds of appeal in the order they have be, presented. 2 Regarding groundl, the Appellant contends that the sale w an instalment sale, requiring full payment before goo delivery. However, according to the Corporate Finan lnstitute, 1 an installment sale is defined as: "A financing arrangement in which the seller allows the buyer to make payments over an extended period of time. In an installment sale, the buyer receives the goods at the beginning of the installment period and makes payments over time." 3 Based on this definition, in an installment sale, goods a typically delivered at the outset of the installment period. ~ Notably, the Appellant's arguments appear to contradict thi suggesting that delivery was contingent on full payment. ; The Appellant further argues that he was entitled to hold on the goods until fu ll payment, citing Section 38(l)(a) of Tl -J l 1- - - - - - - - . , - - - - - - - - - - - - - - - - - - - - - - - - , - - - - .1 . - - - - - - - - - - - - - - - - - - - - - -- support the Appellant's argument for retaining goods until fl payment is made, particularly in cases where the bulk oft: purchase price has been paid. J In this case, the lower court found that the 2 nd Respondent h completed payment, based on evidence of a deduction f unavailable PVC material, affirming that the 2 nd Responde was entitled to the goods. Thus, ground 1 lacks merit and dismissed. , Turning our attention to ground 2, the Appellant argues th the 2 nd Respondent trespassed and converted its gooc Additionally, that, the 2 nd Respondent had no lien because sl had not yet finished paying for the goods. It is trite that a lien is a right at common law to retain th which is rightfully and continuously in one's possessH belonging to another until the present or accrued claims of tl person in possession are satisfied. (See Halsbury's Laws England2). ) In the case of Rapid Global Freight Limited Zambia Railways Limited, 2 this Court stated that: -J12- "A lien is a possessory right as opposed to a proprietary right. A lien cannot exist unless the lien holder is in possession. It is a right of defence and not a right of action. It is held until the other party satisfies the amount of the demand." lO Thus, a lien requires possession by the lien holder, which w, absent here, as the 2 nd Respondent arranged for the gooc collection, and not that the goods were in possession . . 1 Having found that the 2 nd Respondent had no lien, we now tui to the issue of trespass and conversion. While evidence sho'il that the 2 nd Respondent a cted to protect her interests due uncertainty regarding the Appellant's operations, were h actions justified? .2 The learned authors of Winfield and Jolowicz on Tort, 1 ~ Edition, at page 748 define trespass to goods as follows: "Trespass to goods is a wrongful physical interference with them. It may take innumerable forms, such as scratching a panel of a vehicle, removing a tyre from it, or taking the vehicle itself from the garage, or in the case of animals, beating or killing them." -J 13- - - -- - - - - - - -- . - - . . - - - - -- - - - -- i - ------ - - c:, - - includes talcing someone's goods without their permission. T evidence before the lower court does not reveal that the ~ Respondent collected the actual goods she had boug] However, she did collect the Appellant's goods from the store safeguard her interests. We find this unacceptable because s had legal recourse against the Appellant rather than taking t Appellant's goods without his permission. L 4 The trial court found on page 29 of the Record of Appeal th the 2 nd Respondent did not trespass on the Appellant's stc because she was legitimately entitled to her goods. We belie the lower court did not focus on the actual claims as present, in the pleadings. The claim is specifically for trespass to gooc While we agree with the lower court that the 2 nd Respondent d not trespass by merely going to the Appellant's store, tl moment she took the goods belonging to the Appellant witho his permission that constituted trespass to goods . . 5 Regarding the tort of conversion, the learned author Phillip Jones in General Principles of the Law of Torts, 3 stat that: -J14- J J .., J dealing with goods zn a manner inconsistent with the rights of the owner, provided that it is also established that there is an intention on the part of the defendant to assert a right that is inconsistent with the owner's rights." l6 We also found support in the learned authors of Clerk a, Lindsell on Torts, 4 where it states: "The general rule is that the right to bring an action for conversion or wrongful detention of goods belongs to the person who can prove that, at the time of the conversion or detention, they either had actual possession or an immediate right to possess." . 7 It is well-established that trespass to chattels 1s an act th falls short of conversion. It does not require that damage 1 done to the full value of the property or complete loss of us The tortfeasor is responsible only to the extent of: - The damage caused by dispossessing another of t1 chattel (dispossession); or -JlS- - ----o - - ---- - ---- - - -------o ------ -- --------- --- ---- ... - - - - - - - of another; or - Damaging the chattel. l 8 Conversion, on the other hand, occurs when a person uses alters a piece of personal property belonging to someone el without the owner's consent. Conversion involves substant1 interference with the property owner's possessory interest ar it is clear from the above that the tort of conversion 1s mo serious in nature compared to that of trespass . . 9 The ROA shows that the 2 nd Respondent collected goods fro the Appellant's store that were not of the description she h~ paid for. She kept those goods against the interests of t] owner. Had the lower court addressed itself to the principL governing conversion and the evidence on record, it would ha' arrived at the inescapable conclusion that there was trespa: and conversion to goods. io In view of the above analysis, ground two succeeds. i 1 Under ground 3, the Appellant alleges that the lower cou erred 1n requiring evidence of items collected, as tl Respondent disputed only the amount, not the quantity . . -J16- goods returned, observing that inventory was taken upi collection. The court found that the list at page 7 of t Appellants bundle of documents could not authoritatively spe: to what the 2 nd Respondent was alleged to have taken outsi, what was returned. 23 The argument by the Appellant that the Respondents or disputed the amount and not the quantity therefore the co"L should have upheld its claim, lacks merit because failure of defence does not accord the claimant an automatic success. 24 He who alleges must prove his claim. The burden of proof L with the Appellant, who failed to substantiate the clai1 thereby justifying the court's conclusion. We opine that tl lower court was on firm ground to hold as it did. Ground thr lacks merit and it is dismissed. ) CONCLUSION In summary, we find no merit in grounds one and three, whi ground two succeeds. We therefore award damages to the Appellant for convers10 and the period for which they are payable, as well as the -Jl 7- - i - - - - - - - - - - - - - - - - - - - , - - - - - - - - - - - - - - - .1.- - . J assessment. We further award interest on the amounts due 1 be calculated in accordance with the Judgment Act. The appeal having substantially failed , each party will be~ their own costs. --------..,;:;-------- ~ .. ... •••............••. •.•.•.• •..•. ... M. M. KONDOLO, SC COURT OF APPEAL JUDGE B. M. M j ULA :ouRT OF APPEAL JUDGE ....... ~ •••••....... A. M. BANDA - BOBO COURT OF APPEAL JUDGE -J18-