Picla Women Empowerment Limited v Mercy Chileshe Lengwe (2021 /HN /186) [2025] ZMHC 145 (26 December 2025)

2021 /HN / 186 BETWEEN PICLA WOMEN EMPOWERMENT LIMITED PLAINTIFF AND MERCY CHILESHE LENGWE DEFENDANT Before Hon. Mr Justice D. Musonda. For the Plaintiff: Mr. D. S. Libati-Messrs D. S. Libati Legal Practitioners CASES REFERRED TO 1. Kimathi and Others vs. The Foreign and Commonwealth Office 2018 EWHC 2066. 2. Khalid Mohamed vs. The Attorney-General [1982] Z. R. 49 3. Wilson Masauso Zulu vs. Avondale Housing Project [1982] Z. R.172 J2 4. Abrath vs. North Eastern Railway Co (1883) 11 QBD 440 5. Chief Sunday Oguyande vs. Solomon Oluyemi Osunkeye and Another (S. C. 364/ 2002). 6. 7. Joseph Albert Mulenga and Another vs The People (2008) Z. R. l Zambia Revenue Authority vs. Hitech Trading Company Limited (2001) Z. R.17 LEGISLATION REFERRED TO: 1. The High Court Rules Chapter 27 1.0 INTRODUCTION 1.1 This judgment relates to a dispute arising from a community based financial arrangement where members pool their savings without formal bank collateral to empower themselves, called village banking. Its operationalization is premised on members contributing regular savings to a collective fund. The accumulated fund is then loaned to members who need it. 1.2 In this matter, the plaintiff alleged that the defendant was a n1ember of two village banking groups created under the auspices of the plaintiff company. As such member, the J3 defendant borrowed money from the two village banking groups amounting to K477, 376.31 which she failed to pay back on the due date. 1. 3 The defendant denied the allegation and stated that she did not owe the plaintiff any money or at all. The defendant alleged that, in fact, it was the two village banking groups she subscribed to who owed her money in form of a refund for the contributions she made. 1.4 Due to the rival claims regarding the liability of both parties, the parties approached the Court for resolution of the dispute. The plaintiffs claims as endorsed on the writ of summons were as follows:- (i) A payment of the sum of K4 77, 376.31. (ii) Interest as by statute provided. (iii) Costs. (iv) Any other and/ or further reliefs the court shall deem fit. 2.0 AVERMENTS IN THE STATEMENT OF CLAIM J4 2.1 The plaintiffs averments in the accompanying statement of claim were that the plaintiff borrowed money in the sum of K270, 954.00 and K 276, 581.00 from two village banking groups in the names of Innovative Savers and Women for Women Smart Savers Group respectively both of which were created under the auspices of the plaintiff company. 2.2 It was averred further that after a reconciliation of the defendant's indebtedness, some monies were deducted and it was found that the defendant owed Innovative Smart Savers and Women for Women Smart Savers Group the sums of K248, 307.64 and K229, 068.67 respectively, thereby bringing the total money owed to K4 77, 376.31. 2.3 The plaintiff complained that despite numerous demands to have the said money paid, the defendant had failed, neglected and/or refused to pay the same. JS 3.0 AVERMENTS IN DEFENCE AND COUNTER-CLAIM 3.1 The defendant filed an appearance and settled a defence to the claims on 21st October, 2021. 3.2 In her defence, the defendant vehemently denied owing the plaintiff any money. 3.3 The defendant's averments in support of the counter-claim were that she was a member of two village banking groups, namely ; Innovative Smart Savers and Women for Women Sma rt Sa vers Group to which she made monetary contributions. 3.4 She complained that the channeling of the monetary contributions to the plaintiff by the two village banking groups she belonged to wa s illegal. As a result of that alleged illegal act, the defendant averred that she suffered loss and damage. She thus counter-claimed for the following reliefs:- J6 (i) An Order that the plaintiff as a limited company has completely no legal basis in the affairs of village banking groups and could not be part of the same. (ii) An Order that the plaintiff could not in terms of the provisions of section 6 of the Financial and Banking Services Act conduct any financial business or provide financial business without business licences. (iii) An Order that all the moneys paid by the defendant to the two village groups and channeled to the plaintiff by the directors and/ or guarantors of the plaintiff under the guise of village banking be accounted for and paid back to the defendant with interest in the event of their being an excess. (iv) Costs. 4 .0 THE CASE FOR THE PLAINTIFF 4.1 The plaintiffs sole witness was Auxilia Mzumira Zulu a guarantor in the plaintiff company who testified as PWl. J7 4.2 Her witness statement filed into court on 1st August, 2024 revealed that the defendant was a member of two village banking groups created under the auspices of the plaintiff company. She identified the two village banking groups as Innovative Smart Savers and Women for Women Smart Savers Group. 4.3 The defendant was aware of the nature and operations of the two village banking groups. Each member was mandated to save money with the village banking groups and the same money would be lent as loans to the members. In line with that, the defendant obtained loans from both village banking groups which she failed to settle. 4.4 By way of two written agreements dated 1st September, 2020, the defendant confir med being indebted to the pla intiff in the sum of K270, 954.00 and K276, 581.00 respectively , thereby b r inging the total amount to K54 7, 535.00. JS 4.5 After reconciliation was conducted which involved the deduction of the monies invested by the defendant in the plaintiff company, it became clear that the defendant was indebted to the plaintiff in the sum of K477, 376.00 apportioned as follows :- (i) K 248, 307 .64 owed to Innovative Smart Savers. (ii) K 229, 068.67 owed to Women for Women Smart Savers. 4.6 PWl testified further that it was a term of the agreements that the amounts of money borrowed by the defendant would be paid back in full on or about 1st December, 2020. 4.7 PWl complained that despite repeated and several reminders for the payment of the total sum of K 477, 376.31 due and owing to the plaintiff, the defendant ignored, refused and/ or neglected to settle the said debt thereby necessitating the commencement of this action. 4 .8 There was no cross examination for this witness and that marked the close of the case for the plaintiff. J9 5.0 THE CASE FOR THE DEFENDANT 5.1 The defendant did not testify or call any witnesses. 6.0 THE PLAINTIFF'S FINAL WRITTEN SUBMISSIONS 6.1 Following its close of the case, the plaintiff filed its final written submissions into court on 8 th January, 2025. 6.2 The plaintiff started by reciting PWl 's testimonies and making reference to the documents in the plaintiffs bundle of documents which PWl did not refer to in her witness statement. 6.3 It was submitted that the defendant signed a document to acknowledge her indebtedness to the plaintiff in the sum of K477, 376.31 and was bound by that document. This amount was arrived at after a reconciliation of the figures was done. The plaintiff relied on an extract from Chitty on Contracts, General Principles, Volume 1. as follows:- JlO "When a document is signed the parties are bound by the terms of that document whether or not they had been ignorant of their precise legal effect." 6.4 It was submitted that the failure to pay the money back as agreed by the defendant was a breach of agreement and entitled the plaintiff to a decree for specific performance. The case of Trans-Continental Limited and Andrew Robb vs. Donald McIntosh and Eric Routledge was relied on for the definition and applicability of the doctrine of specific performance. 6 .5 In summation, the plaintiff beseeched the Court to enter judgment in its favor in the terms endorsed in the writ of summons. 7.0 CONSIDERATION, ANALYSIS AND DECISION 7 .1 I have considered the pleadings, the evidence on record and the plaintiffs final written submissions. Jll 7 .2 It is imperative to state that the defendant did not call any witnesses at the hearing of the matter. Bearing in mind that pleadings are not evidence, the defendant's counter-claim and defence fall on their own inanition. Suffice to state that since there was no witness to speak to what was pleaded by the defendant; there was no evidence of the assertions in her pleadings. 7.3 I am fortified in so stating by the case of Kimathi and Others vs. The Foreign and Commonwealth Office1 . In that case, it was affirmed that the contents of a case are not evidence in a trial, even though verified by a statement of truth. 7.4 I am wary that I am not strictly bound by that authority on the basis that it is from a foreign jurisdiction. However, I hold the view that the pronouncement made in that case is highly persuasive. My considered view is that it is the correct position of the law even here in Zambia and as such, I feel duty bound to follow it. J12 7.5 It should, however, be noted that even if the defendant did not testify or call any witnesses, it did not take away the legal burden from the plaintiff to prove its case on the burden of probabilities. 7.6 A catenae of case law such as the cases of Khalid Mohamed vs. The Attorney-General2 and Wilson Masauso Zulu vs. Avondale Housing Project3 underscore the foregoing. 7. 7 The common principle of law in the said cases is that 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. It follows that a plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case. 7 .8 In view of the foregoing, the question that needs determination in the premises of this case is whether the plaintiff has tendered sufficient evidence to be entitled to a judgment on its claims. J13 7.9 The plaintiffs assertion is that the defendant was a member of two village banking groups in the names of Innovative Smart Savers and Women for Women Smart Savers Group which were registered under the auspices of the plaintiff company. During the subsistence of her membership, the defendant borrowed money from the two village groups amounting to K547, 535.00. This amount was reduced to the sum of K477, 376.31 after a reconciliation of the figures was done. 7.10 The said figure was divided into two. K248, 307.64 was owed to Innovative Smart Savers and the sum of K229, 068.67 was owed to Women for Women Smart Savers Group. 7 .11 I have considered the testimony of PWl establishing the above facts. Having regard to the amount of money which the plaintiff was claiming, which I consider as colossal, I do not think that the defendant would deliberately decide not to defend the claim by appearing before court when the matter was called. The defendant's conduct in the circumstances of Jl4 this case is contrary to a person who 1s falsely accused of owing money. 7.12 The only assumption I can make from the defendant's conduct is that she deliberately absconded court knowing very well that she owes the plaintiff the claimed money. 7.13 In the premises, I accept the plaintiffs assertion and find as a fact that the defendant is truly and justly indebted to the plaintiff in the claimed sum of K477, 376.31. 7.14 In so proceeding, I am mindful of the evidential burden on each of the parties in this matter as underscored in the case of Abrath vs. North Eastern Railway Co4 . In that case, it was stated that:- "Whenever litigation exists somebody must go on with it; the plaintiff is the first to begin, if he has nothing he fails; if he makes a prima f acie case and nothing is done to answer it; the defendant fails. The test, therefore, as to the J15 burden of proof or onus of proof, whichever the terms is used, is simply this; ask oneself which party will be successful, if no evidence is given or if no more evidence is given that has been given at a particular point of the case, for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that if the case stops there, it must be decided in a particular manner. " 7 .15 I am further guided by the observation of the Nigerian Supreme Court in the persuasive case of Chief Sunday Oguyande vs. Solomon Oluyemi Osunkeye and Another5 In that case, it was stated that:- "It is not the general rule that whenever the evidence tendered by the plaintiff is unchallenged or uncontradicted, the plaintiff is entitled to judgment. .. the law in my view is settled that where evidence is given by a party to any proceedings, has not been challenged by Jl6 the opposite party who had an opportunity to do so, it is open to the court seized of the proceedings to act on the unchallenged evidence before it. ... Unchallenged evidence ought to be accepted by the court as establishing facts therein contained." 7.16 The brief facts of that case relevant to the within case were that on 30 th November, 1981 Ejiwunmi J . (as he then was), granted the application filed by the 2 nd respondent to join in the suit as the 2nd plaintiff. After a lot of delays caused by many factors until 1989 when the trial of the matter proceeded after the amendment of pleadings, the plaintiffs testified and called other witnesses. When after many adjournments, the defendant could not commence his defence, the trial court closed the defence and eventually took the address of counsel. Judgment was delivered in favour of the plaintiffs on the 2nd December, 1991. 7 .17 The defendant felt unhappy with the decision and appealed to the Court of Appeal. In its consideration of the issues J17 submitted to it for the determination of the appeal by both parties, the Court of Appeal, in its judgment per Oguntade J. C. A, (as he then was), who read the lead judgment stated :- "The appellant did not call evidence at the trial. The result is that the evidence called by the respondents was unchallenged. When evidence called by a witness is unchallengedJ the court is at liberty to accept such evidence in proof of the issue in contest. The lower court was therefore right to have accepted the evidence before it in proof of the fact that the appellant committed act of trespass on the land in the respondents' possessionJJ. 7 .18 I accept and apply that position due to its aptness to the matter in casu. The position is similar to that taken in a criminal case of Joseph Albert Mulenga and Another vs The People6 , wherein the Supreme Court said that a trial judge is at liberty to rely on unchallenged evidence. In the premises, I am satisfied that the plaintiff has proved on the balance of probabilities that the defendant is indebted to it in the sum of Jl8 K4 77, 376.31. I thus enter judgment in favor of the plaintiff in the said claimed sum of K477, 376.31. 7 .19 It should be noted that I did not make reference to the plaintiff's bundle of documents in my analysis above. This was all because the plaintiff's sole witness did not make reference to the documents in the plaintiffs bundle of documents. In my view, the non-reference to the documents in the witness statement entails that the court cannot consider that evidence on account that it is not properly before it. 7 .20 In so stating, I am fortified by the enactments of Order 19 Rule 2 (2) (c) of the High Court (Amendment) Rules S. I 58 of 2020 which makes it mandatory that the witness statement should contain all the facts relevant to the claim and make reference to the documents relied upon in the bundle of documents. 7 .21 The plaintiffs approach of rectifying that shortcoming by referring to the documents in the bundle of documents in its final submissions could not cure the said shortcoming. This is J19 so because submissions and arguments, spirited as they maybe, cannot be a substitute for sworn evidence as underscored in the case of Zambia Revenue Authority vs. Hitech Trading Company Limited7 . 8.0 ORDERS 8.1 The defendant shall forthwith pay the plaintiff the sum of K 477,376.31. 8.2 The said judgment sum of K 477, 376.31 shall accrue interest at the short term bank lending rate from the date of the writ to the date of this judgment and thereafter, at 7% per annum until full payment. 8.3 I award costs of this action to the plaintiff. The same shall