Rajan Patel v Attorney General (SCZ 14 of 2002) [2002] ZMSC 90 (5 June 2002)

(P.93) SCZ . Judgment No.14 of 2002 IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.l 14/2001 HOLDEN AT NDOLA (Civil Jurisdiction) RAJAN PATEL APPELLANT AND ATTORNEY-GENERAL RESPONDENT Coram: Ngulube, Chief Justice, Sakala and Chitengi JJS., 6th March and 5th June, 2002. For the Appellant: For the Respondent: Mr. M. Haimbe, Senior State Advocate. Mr. L. Matibini of L. M. Matibini and Company. _____________________JUDGMENT_____________________ Sakala, J. S., delivered the Judgment of the Court. Cases Referred to: 1. Bishopsgate Motor Financing Corporation Fs Transport Brakes Limited (1949) 1KB 322 at pages 336-337. 2. Rowland Fs Divall (192302KB 500) The Appellant’s claim for a declaration that he was the lawful owner of a vehicle registration number AAT5552, Mercedez Benz E.240 and the claim for the return of the same vehicle were dismissed hence the appeal to this court. For convenience, the Appellant will be referred to as the Plaintiff and the Respondent as the Defendant which they were in the court below. The facts which were common cause were that, on 9 July, 1999, while the Plaintiff : J2 : (94) was at his shop, he was approached by one Humphrey Musonda and Patrick Kangwa. The two informed him that they had a car for sale. He viewed this vehicle. It was a Mercedez Benz car registration number AAT 5552. He accepted to buy it. He immediately took it for road test. After the road test, they all returned to the shop. Mr. Kangwa showed him a WhiteBook, a National Registration Card and a Customs Clearance Certificate. The WhiteBook showed that it was issued and registered by the Zambian Government; the owner being Patrick Kangwa. The Plaintiff checked the engine and chassis numbers. They all corresponded with the WhiteBook. The Customs Clearance Certificate was issued by the Zambia Revenue Authority. Thereafter, the plaintiff* negotiated the price which was put at 28,000 USS . According to the Plaintiff, he told Mr. Kangwa that it would take sometime to source that kind of money. Mr. Kangwa indicated that he was returning back to Lusaka and leaving full authority and care of the motor vehicle to Mr. Humphrey Musonda. The following day the Plaintiff and Mr. Musonda went to Ndola Central Police Station at the Motor vehicle Division where Mr. Musonda gave the vehicle’s documents to the Police for verification. After verification, the two proceeded to the Officer-ln-Charge where Mr. Musonda swore an affidavit on behalf of Mr. Patrick Kangwa for change of ownership. On 12th July, 1999, the two went to the Road Traffic Division where they made the change of ownership in the joint names of the Plaintiff and his wife. On 13,h July, 1999, the two went to the office of the Plaintiffs lawyer where a contract of sale for the motor vehicle was made. The Plaintiff and Mr. Musonda signed this contract. z\fter the signing of the contract, the Plaintiff paid Mr. Musonda a sum of 28,000 LSS. (95) : J3: PW2, a Sub Inspector in the Zambia Police Service, confirmed receiving the Plaintiff and Mr. Humphrey Musonda at his office on 20lh July, 1999. He testified that they had come to change the ownership of the Mercedez Benz motor vehicle According to him, he did not believe that the vehicle was a stolen one. Mr. Humphrey Musonda testified as PW3. He told the court that on 8th July, 1999, he received a telephone call from Mr. Patrick Kangwa informing him that he had two motor vehicles to sale namely; a Mercedez Benz and Hilux. He requested Mr. Kangwa to bring the Benz as they needed to buy it in Ndola. Mr. Kangwa brought the vehicle the following day. He confirmed going to the Plaintiff’s office with Mr. Kangwa. He also confirmed the rest of the story as testified by the Plaintiff. On behalf of the Attorney-General, two witnesses testified. One of them, a witness from South Africa, testified that the vehicle in issue was hijacked in South Africa on 15th July, 1999. The matter was reported to the South African Police on the same day. The police opened a Docket which was circulated on the Interpol and on Police Computers. He testified that he identified this vehicle at the Police Headquarters in Lusaka. The second witness on behalf of the Attorney-General was a Detective Inspector in the Zambia Police Service who testified that he was also a liaison officer at Interpol section. He explained that sometime in October, 1999, they received information that a vehicle had been stolen from South Africa on 15th June, 1999 but that the information was entered in the computer in July, 1999. They commenced investigations in October, 1999. (96) : J4 : The learned trial court considered these facts. The court found that the Plaintiff had exhausted the investigations before he finally bought the vehicle in issue. The court also found that the Plaintiff' had bought the vehicle in good faith. The court observed that the issue was whether the Plaintiff had title to the property. The court considered the authority of BISHOPSGATE MOTOR FINANCING CORPORATION VS TRANSPORT BRAKERS LIMITED (1) cited by counsel for the Plaintiff. The court noted that that case dealt with the issue of hire purchase where the Plaintiff had handed over the possession of a vehicle under hire purchase agreement to the buyer who had made some down payment and agreed to pay the balance in monthly installments. The court observed that in that case, the log book in which his own name and address had to be entered had been given out while the car remained the property of the Plaintiff until the total amount had been paid. The court noted that on the facts of that case including on the issue of selling, LORD DENNING applied section 22 of the Sale of Goods Act. The learned trial judge pointed out, however, that the facts of the present case were different in that the seller had no right of title to sale the car. The court observed that a thief had neither ownership or title to pass to a buyer. After citing section 12(1) of the Sale of Goods Act, the court held that a thief in the present case had no right to pass ownership of a title to the purchaser. The court concluded that the vehicle had been stolen. Consequently, the court refused to make the declaration sought and ordered that the vehicle be returned to the rightful owners in South Africa noting that the only remedy to an innocent party as the Plaintiff was that as stated in the case of ROWLAND VS DIV ALL (2) : J5 : (97) namely of suing the seller for the price sold. The PlaintifFs claim failed . No order as to costs was made. Counsel for the Plaintiff relied on the submissions filed in the court below in which he tried to persuade the court that there was only one claimant in this case namely, the Plaintiff. Counsel also tried to persuade the court that even if the vehicle had been stolen the law recognized that the Plaintiff could acquire good title even if the seller had neither the property nor a right to dispose off that property. He cited the BISHOPSGATE MOTOR FINANCING CORPORA TION case( 1) to support his submissions. Mr. Haimbe on behalf of the Defendant submitted that the learned trial judge was on all fours with the law; contending that a thief with no title to property cannot pass title. He cited the case of ROWLAND V DIVALL(2) in support of his submissions. We have anxiously considered the facts not in dispute. While the Plaintiff has all our sympathies, the law is, regrettably, not on his side. Section 22 of the Sale of Goods Act still applicable in Zambia states:- : J6 : (98) “ Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. ” A market overt is defined as an open public and legally constituted. We cannot accept that the sale of a vehicle by people going to the Plaintiff s shop was a sale at the market overt as defined. On the facts of this case the Sale of Goods Act cannot assist the Plaintiff. Indeed, the whole transaction was conducted to the disadvantage of the Plaintiff. But as pointed out by the learned trial judge, all is not lost. The Plaintiff can still pursue the seller. For now this appeal is dismissed. We make no order as to costs. M. M. S. W. Ngulube, CHIEF JUSTICE. E. L. Sakala, SUPREME COURT JUDGE. JUDGE. JwC—