Shadreck Kapasa v Aboubacar Bocoum (Appeal No. 242 of 2023) [2024] ZMCA 231 (22 August 2024)

IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 242 of 2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: / SHADRECK KAPASA APPELLANT AND ABOUBACAR BOCOUM RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 19th & 22nd August 2024 For the Appellant: Mr. C. Hamwela of Messrs Nchito & Nchito standing in for Messrs. Mambwe Siwila & Lisimba Advocates For the Respondent: No Appearance JUDGMENT Patel, JA, delivered the Judgment of this Court. Jl CamScanner Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC) 2. Galaunia Farm Limited v National Milling Corporation Limited (2004) ZR 1 3. Khalid Mohamed v The Attorney General [1982] ZR 49 4. Gibson v Manchester City Council (1978) 2 All ER 583 5. Mhango v Ngulube & Others [1982] ZR 61 6. Crown Parts and Machines Inc v Konkola Copper Mines SCZ Appeal 228 of 7. Rating Valuation Consortium and Another v Lusaka City Council and Another {2004) ZR 109 8. Amchile Import & Export Limited and Others v Ian Chimanga (T/A Tawana Business Ventures) and Another - SCZ Appeal No. 43A/2011 9. Pamodzi Hotels PLC v Rosemary Nyangu Appeal No. 15 of 2011 (ZMSC) 2021 10. Nahar Investment Limited v Grindlays Bank International (Zambia) Limited (S. C. Z. Judgment 1 of 1984) [1984] ZMSC 1 11. Johnny's Trading Company Limited v Yewondwessen Megitsu [2019] ZMCA 12. Mobil Oil Zambia Limited v Patel [1988-1989] ZR 12 13. Kapembwa v Maimbolwa & Another [1981] ZR 127 Legislation & Rules referred to: 1. The Legal Practitioners Act, Chapter 30 of the Laws of Zambia. 2. The Legal Practitioners' Practice Rules 2002. J2 CamScanner 1.0 INTRODUCTION 1.1 This is an appeal against the judgment delivered by Hon. E. L. Musona J, on 31st January 2023 in favour of the Respondent who commenced an action against the Appellant for breach of an agreement for the supply of goods. 2.0 BACKGROUND 2.1 For the purposes of this section, the parties will be referred to as they appear in this Court. 2.2 The Respondent commenced an action against the Appellant (the Plaintiff and Defendant in the Court below) on 15th March, 2021 by way of Writ of Summons and Statement of Claim seeking the following reliefs: i. The sum of USO 110,000.00 being the outstanding balance on the amount paid to the Defendant for the supply of goods; ii. Interest on the sum due at the commercial bank lending rate iii. Costs 2.3 A brief background to this matter is that sometime in October 2020, the Respondent entered into an oral agreement (hereinafter referred to as "the agreement") with the Appellant in which the parties agreed that the Appellant would supply the Respondent with 3 kilograms (kg) of gold. It was agreed that the Respondent would then proceed to transport the gold to New York for resale and that the profits from the sale would be shared between the parties. J3 CamScanner 2.4 Further, it as the Respondent's claim that the Appellant informed him that he had to pay USO 120,000.00 hich as to be used for ta · clearance, exportation fees and other fees incidental ith the Zambia Revenue Authority (ZRA) for thee portation of the gold from Lusaka to Ne York. 2.5 It as further agreed that the Appellant ould be paid a sum of between USO 1,500 to USO 18,000 for every 1kg of gold that as to be sold in New York. 2.6 On 27 t h October 2020, the Respondent paid the Appellant the sum of USO 75,000.00 and on 28th October 2020, paid a further sum of K931, 350.00 as the outstanding balance on the USO 120,000.00 as per the terms of the agreement. 2. 7 According to the Respondent, the Appellant began to make e cuses as to why he could not deliver the gold. Despite repeated and persistent requests, the Appellant failed and neglected to deliver the gold. As a result, on 14t h ovember 2020, the Respondent reported the matter to Zambia Police for the Appellant obtaining pecuniary advantage by false pretenses. 2.8 After the matter was reported to the Police, this prompted the Appellant to supply the Respondent with 173.20 grams of gold and on another date, supplied the Respondents with 34.52 grams of gold, bringing the total amount delivered to 207.72 grams, worth only USO 10,000.00 instead of the agreed quantity of 3kgs of gold. J4 CamScanner 2.9 Despite further requests, the Appellant failed to deliver more gold. Consequently, on 4th January 2021, the Respondent wrote to the Inspector General of Police asking for assistance to retrieve the remaining USDll0,000.00 from the Appellant. 2.10 Thereafter, the Respondent commenced an action against the Appellant for the recovery of the outstanding balance as per their agreement. 2.11 On 3pt January 2023, the learned Judge of the lower Court delivered his Judgment in favour of the Respondent, ordering the Appellant to pay the Respondent the said balance, which assailed Judgment is now the subject of the appeal before us. 3.0 DECISION OF THE LOWER COURT 3.1 In summary, the lower Court considered the arguments, submissions of the parties as well as the evidence provided during trial in this matter. The learned Judge acknowledged the principles established by the cases of Wilson Masauso Zulu v Avondale Housing Project limited1, Galaunia Farm Limited v National Milling Corporation limited 2 and Khalid Mohamed v The Attorney General 3 in which the guidance given by the Court is that, it is the duty of the Plaintiff to prove his case against the Defendant. The learned Judge noted that a Plaintiff who did not prove his case cannot obtain judgment in his favour whatever may be said of the Defendant's case. JS CamScanner 3.2 The learned Judge acknowledged the evidence of the Respondent at trial when it was stated that the matter was referred to the state police. It was his reasoning that he proceeded with civil proceedings because it was not stated whether or not criminal proceedings were underway. 3.3 Further, the learned Judge also acknowledged the fact that the Appellant chose not to testify and considered his defence on record. 3.4 The learned Judge noted the history of the case and made the following observations: i. When process was served on the Appellant, the Appellant did not enter any defence until a default judgment was entered against him in favour of the Respondent. ii. The Appellant applied for an order to set aside the default judgment and the order setting aside that default judgment was granted. It was then that the Appellant filed his defence. iii. When the Respondent testified and called one witness, at the close of the case, the Appellant opted not to testify and called no witnesses. Nevertheless, the learned Judge took it that the Appellant placed reliance on its filed defence. 3.5 The learned Judge noted that the defence suggested that the Respondent was an agent of a said Mr. Soko. However, the learned Judge concluded that he had seen no indication on the evidence on record to show that the Respondent was an agent of a Mr. Soko or any other person or entity. J6 CamScanner 3.6 The learned Judge also held the view that the WhatsApp messages show that the Appellant met with the Respondent and that money was paid by the Respondent to the Appellant. He was satisfied that the Respondent paid the money, and the Appellant received the money, but did not deliver the gold thereby failing to perform his obligation. 3. 7 The learned Judge was satisfied that the Respondent had proved his case against the Appellant and ordered that the Appellant pay to the Respondent the sum of USDll0,000.00 being the outstanding balance on the amount paid to the Appellant for the supply of gold. He ordered interest at the short term bank deposit rate from the date the matter was filed into court to the date of judgment and thereafter, at the current bank of Zambia lending rate. He further ordered costs in favour of the Respondent to be taxed by the Deputy Registrar in default of agreement. 4.0 THE APPEAL 4.1 Dissatisfied with the outcome in the Court below, the Appellant filed a Notice and Memorandum of Appeal, on 16th February 2023, fronting two (2) grounds of appeal, namely; i. The High Court Judge erred in Jaw and in fact in relying on WhatsApp messages to establish that the Respondent had proved his case against the Appellant when there was no such evidence exhibited in the said messages. J7 CamScanner ii. The trial Court erred in law and in fact in ordering the payment of USO 110,000 when no evidence proved the payment of such amount to the Appellant. 5.0 THE APPELLANT'S HEADS OF ARGUMENT 5.1 We have duly considered and appreciated the Appellant's Heads of Argument filed on 1st August 2023. 5.2 The Appellant has argued the grounds of appeal separately. In relation to ground 1, the Appellant argued that for any contract to be enforced there must be agreed terms which are ascertainable. It is the submission that from the parties conduct you should be able to confirm an offer and acceptance and referred to the words of Lord Denning MR in the English case of Gibson v Manchester City Council 4 which stated as follows: "You should look at the correspondence for a whole and at the conduct of the Parties and see therefrom whether the Parties have come to an agreement on everything that was material. If by their correspondence and their conduct you see an agreement on all material terms, which is intended to thence forward to be binding, then there is a binding contract in law even though all the formalities have not been gone through. 11 5.3 It was the Appellant's submission that for a claim to be sustained, the Plaintiff must be able to demonstrate any legal right or interest in the matter at hand. It is the argument that they should show that they suffered an injury CamScanner or harm that can be rewarded by the Court. The Plaintiff always bears the burden of proving their case on the balance of probabilities, the Plaintiff must establish each element of the claim they are making. 5.4 The Appellant argued that in the evidence before the lower Court, the witnesses stated that they paid USD120,000.00 for taxes to the Zambia revenue Authority (ZRA). It was his argument that none of the witnesses confirmed the claim in the statement of claim, that payment was for the supply of gold. They instead said that payment was for tax payable to the ZRA. 5.5 It was argued that the Respondent failed to prove to the Court that the said USD120, 000.00 was received by the Appellant and that there is no proof that the aforementioned sum was ever withdrawn from the Respondent's account in any bank. 5.6 The Appellant further submitted that the number indicated on the WhatsApp conversations between the parties was not that of the Appellant. It is the argument that the Appellant's name is 'Shadreck Kapasa' and the name indicated in the conversation is 'Ibrahim Kapasa Gold'. It is his argument that no evidence was brought to show any nexus between the two names and the lower Court did not have material before it to make a conclusion in the manner that it did. s. 7 It was further submitted that there was no evidence of the terms of the agreement and stated that the Respondent showed contradiction in the amounts alleged to have been paid. It was argued that the alleged payment J9 CamScanner was for ZRA tax and not payment for gold and that the cheque which appears on page 89 of the Record of Appeal showed that the payee was 'RUDZI CORP' and not 'Shadreck Kapasa'. 5.8 With reference to ground two, it was the Appellant's submission that the trial Court erred in ordering the payments of USD110, 000.00 when no evidence proved the payment of such amount to the Appellant. The Appellant placed reliance on several cases such as Wilson Masauso Zulu v Avondale Housing Project Limited 1 and Mhango v Ngulube & Others 5 and invited this Court to reverse the finding by the trial Court that money was paid and received for lack of evidence to sustain the holding. 6.0 THE RESPONDENT'S HEADS OF ARGUMENT 6.1 We have duly considered and appreciated the Appellant's Heads of Argument filed on 29t h August 2023. 6.2 In relation to ground one, it is the Respondent's submission that the Appellant mis-interpreted the decision of the Court below because it isolates the trial Court's consideration of the WhatsApp messages produced by the Respondent without considering the other evidence produced on which the lower Court made findings of fact. 6.3 The Appellant placed reliance on the case of Crown Parts and Machines Inc v Konkola Copper Mines 6 and stated that the holding shows that there are three challenges a party can make as to evidence on the record. It is their submission that the first challenge relates to findings of fact, which can only JlO CamScanner be set aside upon satisfaction of the threshold that those findings are perverse or unsupported by evidence. The second challenge relates to the demeanor and credibility of witnesses, which is not lightly interfered with unless it is unmistakably shown that the Court fell into error. Lastly, the third challenge relates to documentary evidence that can be done either at discovery or by objection at the hearing. 6.4 It was the general submission that the reliability on the WhatsApp messages cannot be questioned and its analysis by the lower Court and subsequent finding where evidence reveals the existence of a contract is sacrosanct and should not be interfered with. 6.5 The Respondent also called in aid the case of Rating Valuation Consortium and Anoth er v Lusaka City Council and Another7 which decision supports the view that an analysis of correspondence and the conduct of parties is sufficient material from which the Court can discern the existence of a contract. 6.6 It is the argument of the Respondent that the Appellant seeks to erroneously isolate the WhatsApp messages to create an erroneous basis to impugn the decision of the trial Court. 6.7 In relation to ground two, it was the Respondent's submission that the Appellant insisted on a receipt of some sought as being evidence but failed to acknowledge that there was also video footage that showed the Appellant receiving t he money from the Respondent. Jll CamScanner 6.8 It was also argued that the Appellant's submission that the Respondent paid the Appellant so that he could pay ZRA fees with no receipt seeks to shift the burden on the Respondent to prove a fact that the Appellant has established. It is their argument that the maxim "he who alleges must prove" requires the Appellant to tender evidence about ZRA payment but failed to do so when he had the opportunity. 6.9 It is the argument that the Appellant was seeking to avoid payment of the sums that he received from the Respondent. 7.0 THE HEARING 7.1 At the hearing of the appeal, Counsel Hamwela tendered apologies on behalf of Counsel M. Lisimba for the Appellant. We accepted the apologies . Counsel Hamwela indicated that the Appellant would place reliance on the Record. 8.0 ANALYSIS AND DECISION OF THIS COURT 8.1 As we consider the appeal, we recognize that grounds one and two are interconnected. Therefore, we will address them together, noting that the Appellant reiterated his arguments from ground one in ground two, as detailed in paragraph 2.1 of the heads of argument. 8.2 We have had the occasion to review the Judgment of the lower Court. It is trite, that for a contract to be valid, it needs to meet certain criteria including an offer, acceptance, consideration and legal capacity. In the present case, J12 CamScanner we acknowledge the Appellant's submission that for any contract to be enforceable, there must be agreed terms which are ascertainable and that from the conduct of the parties, you should be able to confirm an offer and acceptance. However, we are of the considered view that the main issue ,s not centered on the validity of the agreement. 8.3 It is clear from the evidence on record, that there was an agreement between the parties based on their conduct. This is evident from the WhatsApp correspondence between them exhibited at page 78 of the Record of Appeal in which the Appellant enquires on the 'progress of the programme'. While there is no exhibit of written terms of the agreement, it is apparent that there was an oral exchange between the parties based on the follow up conversation between them. 8.4 It is our considered view that the central issue is whether the learned Judge was on firm ground in arriving at the conclusion that the Respondent had substantiated its claim for the award of the outstanding balance of USD110, 000.00 in the Court below. 8.5 It is trite that an appellate Court may only reverse findings of fact made by the trial Judge where the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the evidence, no trial court acting correctly could reasonably make. 8.6 There are a plethora of authorities by the Supreme Court on when an appellate court will interfere with a trial court's findings of fact. In the case J13 CamScanner of Amchile Import & Export Limited and Others v Ian Chimanga (T/A Tawana Business Ventures) and Another 8, Malila JS, as he then was, restated the Supreme Court's position as follows: "To succeed, a party urging an appellate court to reverse findings of fact by a trial court, must demonstrate that the trial court made findings which were perverse or in the absence of relevant evidence, or upon a misrepresentation of facts, or that on a proper view of the evidence before the court, no trial court properly directing its mind to it could make those findings." 8. 7 It is the Appellant's submission that this is a proper case in which revers a I of perverse findings can be ordered. We have had occasion to evaluate the submissions of both parties. We refer to the cited case of Wilson Masauso Zulu v Avondale Housing Project limited 1, in which the Apex Court emphasized, that he who asserts must prove. 8.8 We are prompted to recall the case of Khalid Mohammed v The Attorney General 3 in which the Supreme Court observed that: "An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so, the mere failure of the opponents defence does little to entitle him to judgment." 8.9 We note paragraph 1.13 of the Appellants arguments and are of the considered opinion that the burden does not rest with the Respondent to prove the Appellant's claims. It is clear from the aforementioned authorities J14 CamScanner that this burden lies on the Appellant. We have combed the Record of Appeal as well as the record of proceedings in the lower Court and are of the view that, while the WhatsApp messages do not expressly demonstrate liability, they are evidence that monies were expected to be received by the Appellant. If this were not the case, why then did the Appellant proceed to deliver gold to the Respondent? We are of the view that the Appellant's argument is misconceived as it is apparent from the correspondence that there was an obligation to be fulfilled which the Appellant failed to honor. 8.10 Moving on, it is the Appellant's submission that the learned Judge erred in awarding the Respondent the outstanding balance of USO 110, 000.00 when no evidence proved the payment of such amount to the Appellant. We note at page 52 of the Record, an exhibit marked "WKl" being the Respondent's Supplementary list of Documents with a bank statement from United Bank for Africa. 8.11 We have observed that this statement is not exhibited in the Record. However, we acknowledge the documents on record from pages 88 to 91 which include exhibits of the aforementioned cheque, a letter from the Respondent to the Zambia Police and a demand letter from the Respondent's Advocates to the Appellant which stated that on 27th and 28th October 2020, the sums of USO 75,000 and K931, 350.00 were paid to the Appellant respectively. 8.12 We note from the Record that the Appellant, instead of providing the Respondent with 3kgs as agreed, only supplied 207. 72 grams of gold valued JlS CamScanner at $10,000. We equally note page 121, lines 30- 35 which indicate that there was correspondence regarding the monies to be withdrawn, which the Appellant acknowledged. Further correspondence exhibited in the Respondent's Bundle of Documents demonstrates acknowledgment on the part of the Appellant that he had received the money seen at page 79 of the Record. 8.13 We are therefore of the considered view, that it is misguided to argue that there is no evidence or basis upon which the lower Court awarded the Respondent with the outstanding balance when there is clearly an abundance of evidence of an existing business relationship between the parties in which each party had specific obligations. 8.14 Furthermore, we have observed paragraph 1.10 of the Appellant's arguments in which he argued as follows: "In fact, there is no number indicated on the said conversation which would confirm that the said conversation was between the Appellant and the Respondent. The Appellanf s name is Shadreck Ka pas a and the name indicated in the conversation is Ibrahim Kapasa Gold" 8.15 It is our considered opinion that the Appellant is endeavoring to mislead this Court through evasive and unclear arguments, seemingly aiming to obscure the evident facts before us. It leads us to the question: if the conversation was not between the Appellant and the Respondent, and if there was no nexus between the two names, why was this not challenged at trial? J16 CamScanner 8 16 Furth ·t · h · er, 1 1s t e argument that the Respondent's alleged payment was for ZRA tax clearance and not for the supply of the gold . We ask ourselves: why did the Appellant supply 207.72 grams of gold if he was not paid anything? It is our considered opinion that these arguments are contradictory of the conduct of the Appellant and the evidence before us. 8.17 In view of the above, we also find relevance in Section 52(b) of the Legal Practitioners Act 1 which states as follows: "No practitioner shall mislead or allow any court to be misled, so that such court makes an order which such practitioner knows to be wrong or improper. 11 8.18 It also contravenes ru les 3(2)(f) and 32(1) and (2) of the Legal Practitioners' Practice Rules 2002 2. Rule 3(2)(f} provides that: "A practitioner shall not do anything in the course of practice or permit another person to do anything on the practitioner's behalf, which compromises or impairs or is likely to compromise or impair any of the following: ...... (!) the practitioner's duty to the Court. 11 8.19 We also refer to the case of Pamodzi Hotels PLC v Rosemary Nyangu 9 in which the Supreme Court held that as an officer of the Court, Counsel for the Respondent's duty to the Court was paramount even if his client gave contrary instructions. His role was not merely to push the personal interests of the Respondent, rather Counsel should have provided clear and proper advice to his client to avoid any compromise to his integrity and professional independence . Therefore, it was the Courts view in that case tha t Counsel )17 CamScanner should not have brought to Court a motion that is devoid of any merit simply because his client instructed him to do so. 8.20 In the case of Nahar Investments v Grindlays Bank International (Zambia) Limited 10 the Supreme Court held that: "Litigation must come to an end, it is highly undesirable that respondents should be kept in suspense because of dilatory conduct on the part of the appellants. /I 8.21 We therefore arrive at the inescapable conclusion that the only reasonable inference to be drawn from the circumstances of this case, is that there was a valid oral agreement that existed between the parties and that the Appellant had an obligation to supply 3kgs of gold to the Respondent which he failed to do. In the case of Johnny's Trading Company Limited v Yewondwessen Megitsu11, this Court held as follows: "In the event the validity of an oral agreement is at question, the fact that one party has already performed its responsibilities under the agreement may serve to confirm that a contract did exist." 8.22 We also note the cited cases of Mobil Oil Zambia Limited v Patel 12 and Kapembwa v Mimbolwa & Another 13 at paragraph 2.5 of the Appellant's arguments. We are of the considered view that there was no misdirection on the part of the learned Judge who was on firm ground to have accepted the evidence before him in arriving at his decision. CamScanner 8.23 We therefore agree wi t h t he Respondent's submission that this appeal is an imprudent use of this Courts time and frown on the condu ct of the Appellant. 9.0 CONCLUSION 9.1 We accordingly dismiss this appeal having found no merit in any of the grounds of appeal with costs to the Respondent, same to be taxed in default of agreement. M. J. SIAVWAPA JUDGE PRESIDENT F. M. CHISHIMBA A. N. PATEL S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J19 CamScanner