Sharon Mundia Nyimba Simwami v Precious Monde Mwiya [2024] ZMCA 320 (19 November 2024)

IOLDEN AT NDOLA Civil Jurisdiction) 3ETWEEN: ;HARON MUNDIA NYIMBA S , APPELLANT ,RECIOUS MONDE MWIYA RESPONDENT Coram: Kondolo S. C., , ______ Bobo, JJA On the 13th and 19th 1fdue.mll.er, 2024 ~or the Appellant: Mr. L. E. Eyaa of Linus and Partners 'or the Respondent: Ms W. Chimankata of Tom Shamakamba & Associates JUDGMENT randa-Bobo, JA delivered the Judgment of the Court. ~ases referred to: Spice Girls Ltd v. Aprilia World Service BV (2002). Derry v. Peek (1889) 14 App. Cas. 337. Nkongolo Farms Limited v. Zambia National Commercial Bank Limited, Ke Choice Limited (in receivership) and Charles Haruperi, SCZ No. 19 of 2007. Madison General Insurance Ltd v. Avril Comhil and Michael Kakoma, (202 ZMSC 168. William Mas autso Zu lu v. Avondale Hou sing Project Limited (1982). lther works referred to: The Evidentiary Foundation, 12th Edition, by Edward J. Imwinkelried The Black Law's Dictionary 8 th Edition, (2004) .1 This is an appeal against the Judgment of Honourable La Justice M. Mapani Kawimbe d elivered in the High Court Lusaka on 30 th June, 2022. The Notice and Memorandum Appeal were filed into Court on 11 th July, 2022 . . 2 The parties will be ref erred to as they appear in this court . . 0 BACKGROUND .1 The background to this appeal is that on 14t h January, 20: the Appellant filed into the High Court a Writ of Summo accompanied by a Statement of Claim seeking the followi reliefs: i. Specific performance of the said agreement; ll. Possession of the said house and premises; m. A declaration that the Plaintiff is the legal owner w entitled to enter and use the said house for whatei legal purpose; w. An order for damages for breach of contract in addition specific performance; v. Damages for loss of business calculated at K4,220 [, day from the day the Defendant evicted the Plaintiff frc the property until date of payment thereof; vi. Payment of the sum of Kl 0, 000. 00 which was lost by ti Defendant's illegal entry in the premises hereof; -J2- damaged property; um. An injunction to restrain the Defendant by herself, r servants or agents or othenuise howsoever fn remaining on or continuing in occupation of the sc house) from trespassing on the said property and fn interfering with the Plaintiffs quiet possession of t property; ix. Costs; x. Interest on the sums claimed . . 2 In her Statement of Claim, the Respondent asserted that, by written agreement dated 12th July, 2021, the Appellant agre, to sell , and the Respondent agreed to buy, House No . 07 located at Boma area, Senanga Ro ad, Senanga Distri( Western Province, for K250,000.00. The Respondent stat1 that she paid the Appellant Kl 70,000.00 on 30 th April 20: and transferred a motor vehicle (registration No. BAF 742721 valued at K65,000.00 as part payment, totalling K235,000.0 The Appellant then requested an a dditiona l K37 ,000 .00 , whic the Respondent agreed to pay. On 11th August 2021 and 7 th September 2021, tl Respondent paid the balance of the purchase price instalments of KlS,000.00 and K37,000.00, respectively. Upc -J3- the Appellant d emanded a n a dditional K24, 000 .00 for fixture 4 When the Respondent sought more time to raise t] K24,000.00, the Appellant denied this request and se individuals to remove the fixtures. These individuals damage property locks, doors , and removed the Respondent's person belongings , forcing her out. On the ot h er h aDd , the Appella n t a dmitted to s elling Hou No. 0713 but argued that the motor vehicle (valued K65 ,000.00) was not registered in the Respondent's nam rendering it unsuitable as part of the consideration. T] Appellant rescinded the contract before the full payment w, completed , with a K15 , 000 .00 bala nce remaining. S1 asserted that the Respondent fraudulently claimed to be tl new owner of the lodge business and attempted to defral her. The Appellant contended that the additional K37, 000.00 We agreed upon for renovations and that the K24, 000. C represented the cost of air conditioners the Respondei wanted but were installed by the Appellant. -J4- .1 In the judgment dated 30th June 2022, the learned Jud. upheld the Respondent's claims and granted an order f specific p erformance. The ROA , from pages 44 to 48 , shows th the judge found the Respondent did not fraudulen1 misrepresent any facts to the Appellant regarding vehic ownership. The court noted that both parties were well aware the vehicle ownership status. Furthermore, the court observ1 that the ownership issue could have been easily resolved by c order compelling the Plaintiff to transfer ownership to tl Appellant's name. 2 Regarding specific performance, the court held that there was valid contract between the parties and that, 1n tl circumstances of this case, an order for specific perf orman1 was necessary to serve the ends of justice. 3 As for the counterclaim for breach of contract and spec1 damages for expenses incurred in returning the vehicle Senanga, the court dismissed the counterclaim, stating that tl vehicle was properly tendered as consideration and that it wa in fact, the Appellant who breached the contract. -JS- there was a valid and duly signed sale agreement between t parties that had not been vitiated. Additionally, the Appella received the full purchase price, thus he was not entitled rescind the contract. ·. O THE APPEAL .1 Dissatisfied with the Judgement of the Court below, t Appellant launched the present appeal advancing the followi eight (8) grounds thus: 1. The learned High Court Judge erred in fact and law when she held at page J33 of the Judgment, that there was acquiescence on the part of the Appellant that the vehicle registration No. 7427 Z. M was acceptable as consideration at the time of the contract without considering the evidence showing lack of full disclosure by the Respondent as regards the vehicle at the time of the contract; ii. The learned High Court Judge erred in fact and law when she held at page J33 that the Appellant breached the contract while the evidence on record -J6- , J J J the said vehicle at the time of signing the contract itself constituted a breach on the part of the Respondent; m. The learned High Court Judge erred in fact and law when she held at page J34 of the judgment that the Respondent did not fraudulently misrepresent any facts as to the ownership of the vehicle registration number BAF 7427 ZM whe n the vehicle registration certificate which is proof of ownership was not in the name of the Respondent who did not disclose the same to the Appellant; w. The learned High Court Judge erred in fact and law when she held at page J34 of the judgment that the parties were well aware of the issues of no corroborating evidence to show that the letter of delivery or indeed letter of sale from Yokohama Motors Limited to the Respondent was ever given to the Appellant at the time of signing the contract of sale. -J7- ...., when she held at page J35 of the Judgment that the Appellant was not entitled to rescind the contract when there is evidence to show that the Appe llant was only aware of the issue of vehicle registration certificate being in the name of third party not privy to the contract of sale after the contract had already been entered into and lack of corroborating evidence from the Respondent that she made the Appellant aware of the same at the time of entering the contract of sale; vi. The learned High Court Judge erred in fact and law when she declared the Respondent as being the rightful owner of the property House No. 0713 Boma Road Area, Senanga, granted an order for specific performance and vacant possession, and awarded the Respondent Damages for breach of contract at page J 3 8 of the judgment, d espite evidence showing the lack of full disclosure as regards the vehicle registration number BAF 7427 ZM at the time of the -J8- the contract of sale)· vii. The learned High Court Judge erred in fact and law when she dismissed the Appellants counterclaim in its entirety when there is to show that the Respondent Jailed to give full disclosure as regards ownership as reflected on the vehicle registration certificate at the time of the contract)· viii. The learned High Court Judge erred in fact and law when she awarded the Respondent ZMWl) 250.00 for PW4)s wrongful ejection from the lodge based on PW4 )s witness statement when PW4 did not attend triat identify his witness statement thereby rendering him impossible to cross examine and no application was made to have the said witness statement admitted in evidence . . 0 CROSS APPEAL 1 The Respondent , also dissatisfied with the judgment, filed Cross- Appeal advancing two grounds as follows: 1. To the extent that the Honourable High Court Judge he that the Plaintiff was not entitled to damages for loss -J9- the Plaintiff is awarded damages for loss of businE from the date of the illegal eviction up to the date judgment. ii. To the extent that the Judge held that the Plaintiff w not entitled to the K 10,000.00 lost during the. illef eviction, the judgment should be varied to reflect that t Plaintiff is entitled to recover the lost amount from t Defendant. .0 ARGUMENTS IN SUPPORT OF THE APPEAL The appellant filed heads of argument on 11th July 2022. 2 Grounds 1 to 7 were argued together. In support of the grounds, it was submitted that the Respondent's offer of t vehicle as part payment, along with the delivery of said vehic to the Appellant, suggested that she was the registered ownt Reference was m a d e to the case of Spice Girls Ltd v. April World Service BV, 1 to illustrate reliance on misrepresentatic by conduct. In that case, the court held that the Spice Gir by participating in a commercial photo shoot, conveyed Aprilia World Service that all members of the group we -JlO- had an existing or declared intention to leave the group . . 3 The Appellant further argued that fraudule misrepresentation can occur where one party om: information, even if the entirety of the statement is true. It w submitted that the Respondent's failure to inform t Appellant that the vehicle was registered in another persor name supports the Appellant's right to rescind the contract< grounds of fraudulent misrepresentation. 4 On ground 8, the appellant argued that the witness stateme used to award ZMWl, 250.00 to the Respondent was n substantiated , as the witness did not testify, thereby lackii foundation. The Evidentiary Foundation, 1 was cite emphasising the need to lay a proper foundation befo admitting an item into evidence. It was argued that th requirement was not met in this case. The appellant urged the court to uphold the appeal. .0 ARGUMENTS IN OPPOSITION In the Respondent's heads of argument, it was contended th the main issue giving rise to the Appellant's allegations -Jl 1- white book for the motor vehicle registration No. BAF 74'. ZM . . 2 It was submitted that there was a valid sale agreeme between Yokohama Motors Limited and the Respondent, w: legally purchased the subject motor vehicle from Yokohar Motors Limited, as can be seen from page 132 of the Record Appeal. Consequently, the Respondent was the legal owner the motor vehicle and had the right to resell it a t the time s: entered into the contract of sale with the Appellar Furthermore, that the fact that the name appearing on tl white book is that of Yokohama Motors Limited does n invalidate the contract of sale between the Appellant and tl Respondent for the subject motor vehicle. It was also not, that the Appellant kept and used the vehicle for three montl without raising the issue of the vehicle's registration. The Respondent referred to the case of Derry v. Peek, 2 whe fraudulent misrepresentation was defined as "a Jal. statement made knowingly, or without belief in its truth, recklessly, careless whether it be true or false." -J12- fraudulent misrepresentation, as the Appellant had the whi book and letter of delivery from the outset and knew that tl motor vehicle in question was still registered under the nan of Yokohama Motors Limited. It was further argued that the Appellant failed to provide tl Court below with the necessary particulars to establish h claim in the lower court on fraud, as required in the case Nkongolo Farms Limited v. Zambia National Commerci1 Bank Limited, Kent Choice Limited (in receivership) a, Charles Han1.peri, 3 where the Court held that: "Where a party relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence by another party, he must supply the necessary particulars of the allegation in his pleadings ... Actual fraud arises from acts and circumstances of imposition. It usually takes the form of a statement that is false or suppression of what is true ... " Regarding the allegation of lack of full disclosure by tl Respondent in respect of the motor vehicle at the time of tl sale, it was submitted that one can only be held liable f< -Jl3- was argued that the Respondent had no special duty disclose the material facts pertaining to the motor vehicl However, that despite this, the Respondent did provide tl Appellant with full disclosure of all material facts surroundi1 the registration of the motor vehicle, as evidenced by tl Respondent's testimony. 7 On ground 8, the Respondent argued that the lower court w. on firm ground when it granted damages for wrongful evictic in favour of one of her clients. It was further submitted th the court's finding in the High Court was not based on t] witness statement of PW4, but rather on the Respondent's ov witness statement. Further tha t , th e Respondent testified the eviction of her client from the property on the very day sl was evicted from the property by the Appellant. ) ARGUMENTS ON THE CROSS APPEAL The Respondent also filed a cross-appeal on July 19, 202 The Appellants did not file heads of argument in opposition the cross-appeal. -J14- Respondent argued the two grounds of appeal together. It w submitted , r ega r ding th e issue of d a mages for loss of busine: that the court below erred in law when it held that there w no evidence adduced in support of the Respondent's claim 1 loss of business. The Respondent argued that she stated in her statement claim that she used to make K4,220 per day from her lodgi busine s s b efore she was evicted . She further clarified h claim for loss of business in her witness statement and duri: cross-examination, stating that she used to make Kl ,000 J: day from the rooms and K2,500 from dining and restaura services . .4 To support this argument, we were referred to the case Madison General Insurance Ltd v. Avril Cornhil a1 Michael Kakoma, 4 where the Court held that: "Special damages for financial outlay or loss in terms of earnings or profits are awarded on one principle-the imperative to properly plead, particularize, and prove damages. And this is universal." -Jl5- Kl0,000 for loss, it was submitted that the Respondent h, particularised the claim of Kl0,000 in her statement of clai1 and this was corroborated by the oral testimonies of PW2 a1 PW3. 0 HEARING 1 At the hearing of the matter, learned counsel for the parti, relied on their respective heads of argument in support of th<: respective positions to the appeal. Regarding the cross-appeal, Ms. Chimankata relied on tl arguments contained in the Notice of Appeal filed on 30 March 2023 . On the other hand, Mr. Eyaa stated th although the Appellant was not served with the cross-appec he would rely on the judgment of the lower court in opposir the cross-appeal. ).0 ANALYSIS AND DECISION ).1 We have taken due consideration of the Record of Appeal, tl Grounds of Appeal and the parties respective submissions. ~ will address grounds 1 to 7 of appeal together as they a interlinked, and as they were argued. -J16- non-disclosure of the vehicle's registration status. T question is whether there was sufficient disclosure and, if nc whether the Appellant was prejudiced in accepting the vehic as consideration. J.3 It is the Appellant's argument that the Respondent did n disclose to the Appellant at the time of entering into tl contract leading to the within issues, that the vehic registration number BAF 7427 ZM was registered in tl names of a third party who was not party to the contract sale. ).4 As noted above, the Appellant argues that the Respondern conduct constituted misrepresentation by failing to disclo that the vehicle was registered in another person 's name. As result, the Appellant contends that she was well within h rights to rescind the contract on grounds of fraudule misrepresentation. ).5 In determining the issue at hand, we have considered tl definition of fraudulent misrepresentation in Black's La Dictionary 8th edition, 2 as reproduced below; vis:- -J l 7- concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment." ).6 The essence of the above definition is that fraudule misrepresentation occurs when a party, relying on t misrepresentation, has been induced to act to his or h detriment. ).7 A review of the Record of Appeal (ROA) shows that the co"L found , as a matter of fa ct, that the Respondent was aware the ownership issue at the time the vehicle was offered as pc payment towards the purchase price. ).8 Even if we accept the Appellant's claim that she was unawa that ownership was in a third party's name, the ROA in di cat that she used the vehicle and had its documents. This rais the question: why didn 't she address the ownership issue an earlier stage? ).9 · Additiona lly, a lthough the Appella nt cla imed that no disclosure constituted misrepresentation, we find no prejudi suffered by the Appellant due to this registration issue. The -J18- her detriment. D.10 We concur with the lower court that the issue of change ownership could have been resolved between the parties through court intervention. The Appellant kept the vehicle j three months , indicating acceptance. As no prejudice occurre grounds 1 to 7 are dismissed for lack of merit. ) . 11 Turning to ground 8, we note that the lower court relied on witness statement from Mr. Jacob Mbewe without 1 attendance at trial or proper admission of the statement in evidence. Although the Respondent argues that the low court was on firm ground in awarding the Respondent Kl ,2: based on the Respondent's witness statement, we disagr with this proposition, as it is contrary to the facts on recor We took time to review the Respondent's witness statement the Record of Appeal (ROA), and nowhere in that statement d the Respondent mention specifically making a refund Kl,250 to PW4 following PW4's wrongful eviction from tl lodge. -J19- Avondale Housing Project Limited, 5 where the Supre1 Court guided that: "Before the court can reverse findings of fact made by the trial Judge, it must be satisfied that the findings in question were either perverse, made in the absence of any relevant evidence, made upon a misapprehension of the facts, or that on a proper view of the evidence, no trial court acting correctly could reasonably make." ).13 Having analysed the ROA, it is our view that this is a proper case in which we can reverse the lower court's findings, as t:t findings were made by relying on a statement whose conditio precedent to its admission into evidence was not satisfied. ).14 We accept the writing of the learned author of the bo1 Evidentiary Foundation 12th Edition, 1 referred to by t Appellant a bove . An excerpt of page 2 , is reproduced below: «For our purpose, the most important procedural rule is that the proponent of an item of evidence must ordinarily lay the foundation before formally offering the item into evidence. For example, the proponent of a -J20- offering the letter into evidence. Proof of the letter's authenticity is part of the letter's foundation' or 'Predicate '. Substantive Evidence law makes proof of authenticity a condition precedent to the letter's admission into evidence." J.15 In line with the foregoing, it is well-established that, for ai item to be admitted and used as evidence, procedure requir the proponent of the evidence to lay a proper foundation. v opine that the court's reliance on this un-admitted statemer and subsequent award based on it, was erroneou Accordingly, this ground succeeds, a nd the order is reversed. ).16 We now turn to the grounds under the cross-appeal. Und ground 1, the argument is that the lower court should ha awarded damages to the Respondent for loss of business fro the date of the illegal eviction to the date of judgment. Tl Respondent has argued that she produced eyidence by stati1 that she u s ed to m a ke K4 ,220 per day , which w, corroborated by oral evidence. In dismissing this claim, tl lower court, at page 48 of the ROA, found that the eviden -J21- with which we agree. ).17 The case of Madison General Insurance Ltd v. Avril Cornl and Michael Kakoma4 (supra) is instructive on the need for party claiming special damages, including loss of earnings profit, to particularize and prove the d a mages. We have al taken note of the holding in the same case , which clarified th such d a mages do not need to be proved beyond reasonat doubt, and that it is not always n ecessary to adduce receip or other documentary evidence to prove loss. However, it is a considered view that a claimant claiming loss of earnings profit, must convince the court as to how the claimed amou of special damages was arrived at, which the lower court four lacking in this case. Accordingly, this ground fails . . 18 Turning to ground 2 of the cross-appeal, the Responde claims that the lower court should have found that there was loss incurred during the illegal eviction. The ROA shows th the lower court lamented the Respondent's failure substantiate this claim, noting that the receipts produced show items purchased by the Respondent for the lodge were n explained in a manner that would allow the court to discei -J22- need for eviden ce to show how the loss was s uffer ed a nd how related to the Kl0 ,000.00 in damages sought. We find that t h lower court was on firm ground , and this ground fails for lack ( m erit. 0 CONCLUSION 1 In conclusion, we dismiss grounds 1 to 7 with costs. On tr other h a nd , Ground 8 s u cceed s . We set aside th e order for t r payment of Kl ,250.00 to the Respondent. The cross-appeal : without m erit and is dismissed. The appeal h aving substa ntial: fa iled , costs a re award ed to t h e Respon den t , to b e taxed i default of agreement. ........................................ ~ 'i:= M. M. KONDOLO, SC COURT OF APPEAL JUDGE B. M. MAJULA A. M. BANDA-BOBO :oURT OF APPEAL JUDGE COURT OF APPEAL JUDGJ -J23-