Sharon Namfukwe and Anor v Jimu Simkanzyeand 2 Ors (2023/SID/53) [2023] ZMSUB 18 (17 August 2023)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SID/53 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN REPUBLIC OF ZAMBIA THE JUDICIARY ~ · 17 AUG 2023 ~ MAGISTR ATE CLASS Ii P. O. BOX 4 2 0101, MBAL SHARON NAMFUKWE 1ST PLAINTIFF LILLIAN NAYAME 2ND PLAINTIFF AND JIMMU SIMUKANZYE 1ST DEFENDANT IVY NAMPONDA 2ND DEFENDANT BATHSHEBA NAMPONDA 3RD DEFENDANT Before: Hon. Deeleslie Mondoka For the 1st and 2nd Plaintiff For the 1st, 2nd, and 3rd Defendants : : In person In person JUDGMENT CASES REFERRED TO: i. ii. iii. MOSES V MACFERLAN (1760) 2 BURR 1005; LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. 21 OF 2020; BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50; J1 iv. v. vi. BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6; MERCANTILE BUSINESS FINANCE LIMITED V. SIBEC DEVELOPMENT LIMITED, 1992 1 WLR 1253; ZAMBIA NATIONAL COMMERCIAL BANK LIMITED V. KAPEKA BUTTON MHONE (2000) ZR 138; vii. HAONGA AND OTHERS v THE PEOPLE (1976) ZR 200 (SC); viii. GRAVE V. MILLS 7 H& N 917; ix. WESLEY MULUNGUSHI V CATHERINE BWALE MIZI CHOMBA (2004) Z. R. 96; x. KHALID MOHAMED v THE ATTORNEY-GENERAL (1982) Z. R. 49 (S. C.); xi. MTUMBI GOMA V ROY MWABA APPEAL NO. 124 OF 2020; xii. MARY MUSONDA VS ATTORNEY-GENERAL (1993-1994) ZR9; xiii. MIDLAND BREWERIES (PVT) LIMITED VS DAVID MUNGENYEMBE (SCZ JUDGMENT NO.3 OF 2017); xiv. ANTONIO VENTRIGLIA AND ANOTHER V PTA BANK SCZ JUDGMENT NO. 1 OF 2010; xv. xvi. JUSTIN CHANSA V LUSAKA CITY COUNCIL (2007) Z. R. 256, AND LISWANISO SITALI & OTHERS V. MOPANI COPPER MINES PLC (2004) Z. R. 176. OTHER MATERIALS REFERRED TO: i. ii. iii. iv. v. vi. vii. BLACK’S LAW DICTIONARY, 2ND EDITION, 1910; BLACK’S LAW DICTIONARY, 9TH EDITION, 2009; ALVIN, W. L. (2013). AN INTRODUCTION TO THE LAW OF UNJUST ENRICHMENT. SINGAPORE MANAGEMENT UNIVERSITY; CLERK AND LINDSELL ON TORTS, 12TH EDITION, (1961); CLERK AND LINDSELL ON TORTS, 14TH EDITION, 1975. PARA. 1150; HALSBURY'S LAWS OF ENGLAND (SUPRA) AT PG 389 PARA 616; PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010); viii. CROSS ON EVIDENCE 6TH EDITION (1985). J2 INTRODUCTION [1] This Judgement proceeds from an unliquidated claim which the 1st and 2nd plaintiff made against the 1st, 2nd, and 3rd defendants wherein the plaintiffs sought restitution of 7 x 90kgs bags of beans plus twenty-five (25) local chickens, which items were procured by the plaintiffs’ and later left in the custody of the 1st, 2nd, and 3rd defendants’, as the plaintiffs went in search of transport to ferry the goods in question. [2] [3] Further, the plaintiffs sought a catch-all relief that the court would deem fit along with an order for cost incidental to the suit herein. The matter was commenced on 12th July, 2023, by way of writ of summons, expediently read out in open court in the hearing of the both parties by this honourable court in intelligible fashion. BACKGROUND FACTS THE PLAINTIFFS’ CASE [4] Hereafter is a recapitulation of the facts in support of the claim. [5] When this claim was published– the defendants gave an unqualified denial to owing the plaintiffs as per the claim succinctly captured on the writ. [6] It was PW1’s testimony that on 11th July, 2020– PW1 with the 2nd plaintiff in tow procured 7 x 90kgs bags of beans and twenty-five (25) chickens and left the same at the defendants’ premises, pro tempore– up until she regained with transportation which was just the ticket for the items herein to be consigned to her preferred distribution point, whereat, she would soon conduct her trade. [7] In September, 2020– PW1 would call back– only to be told that their stock had been appropriated. In the heat of the moment– the defendants committed to compensating her for the items in question J3 upon harvesting, until on a dime the defendants vacated their position and refused to pay the plaintiffs. [8] PW1 related that, on the following season when they were to make good on their promise– the defendants gave the intimation that they could not make good, as the rains were rather de trop, which as a consequence affected the yield. [9] In 2022, when PW1 visited the defendants, she intimated that they had been hostile to her concerning the items in question, which behaviour prompted PW1 to approach the pillar of the community who unfortunately at the time could not resolve the matter, as it was loosely put– out of his province. [10] On 11th January, 2023, PW1 went back to the village headman, who in turn summoned the defendants herein, and helped to mediate the issue between PW1 and the defendants with the hope of resolving the matter ex curia. [11] At the meeting, the 3rd defendant indicated that she used the beans she had in her custody to settle the debt that PW1 owed to third-party. PW1 indicated that the attempt to have the issue resolve ex curia was an unmitigated disaster, as the same was characterised with sheer bedlam. Thusly– PW1 was advised to bring the matter before the courts of law. [12] Further, PW1 related that the 1st defendant to cap it all indicated that he had paid off a debt that PW1 owed to a third-party using the items in question. Albeit– the 1st defendant contended that he only owed PW1 four (4) tins of beans, and quickly volte-faced that he only owed PW1, two (2) tins and two (2) gallons of beans– and the 2nd defendant herein worshipped at the shrine of the 1st defendant’s testimony. [13] On the other hand– the 3rd defendant related that she only owed PW1 four (4) tins and half (½) a gallon of CHIPAPI beans. And touching the J4 issue of the chickens the 3rd defendant countered PW1 by asserting that– PW1 only left the same so that the 3rd defendant could keep the same. [14] In the main, the headman instructed that the 1st, 2nd, and 3rd defendants reimburse PW1 the 7 x 90 kgs bags of beans as soon as they harvested the beans the subsequent season and that the chickens be returned inside a sennight. [15] After a week, PW1 made inquiries into the matter of the chicken but to no avail. Two (2) weeks later no luck and after two months, suffice (it) to say– the defendants became hostile and violent towards PW1, and that they could not even have the summons issued against them signed. [16] As a consequence, PW1 spent a night at the headman’s abode, and on the morrow the 1st defendant come through with two (2) chickens as full payment for the chickens he owed PW1. PW1 then present the summons to him– but the 1st defendant refused to sign the same. [17] Consequently, a warrant of commitment on remand, marked “SN1” was issued against the 1st defendant pursuant to sections 202 and 227 of the Criminal Procedure Code, chapter 88 of the laws of Zambia, for the offence of contempt of court. Consequently, the 1st defendant was apprehended and brought to Mbala police post. [18] During cross-examination it was established that PW1 left ten (10) chickens and six (6) bags of beans at the 1st and 2nd defendants’ abode and that she left fifteen (15) chickens and one (1) bag of beans at the 3rd defendant’s dwelling. Further, it was established that the 3rd defendant alleged that the beans was eaten by goats and destroyed by the rains. [19] Nothing was advanced in re-examination. J5 [20] The Plaintiff called as its second witness, PW2, LILLIAN NAYAME, the 2nd defendant herein, whose exposition of the facts was much in the manner of PW1, except to supplement as hereunder. [21] PW1 and PW2 bought 7 x 90kgs bags of beans– five (5) bags were PW1’s and the 2 bags of the beans were hers. It was PW2’s account that she entrusted her two (2) bags with PW1 because of the familial relationship PW1 shared with the defendants. [22] During cross-examination it was established that PW2 did not instruct the 2nd defendant to pay the debt owed by PW1 to her debtor. Nothing was advanced in re-examination. [23] The plaintiffs called the third and last witness, PW3, EDWIN SIMUSAMBA, a headman whose account of the facts comported admirably with the preceding witnesses. [24] PW3 related that, it was on 11th January, 2023, when PW1 brought a complaint that the defendants had been given some beans and chickens to keep for her owing to a logistical snafu– and that soon as she had resolved and organised transport, PW1 would regain and collect the 7 x 90kgs bags beans and twenty-five (25) chickens, which she had left with the defendants on the belief that they would be a safe pair of hands. [25] The 1st defendant admitted owing PW1 the items in question, but later argued that he was only given 2 tins and 2 gallons of beans. The 2nd defendant indicated the she was told to give the beans as payment to a certain SIKOMBE. The 1st defendant argued that he was only given five (5) chickens. [26] And by a missive dated 26th July, 2023, marked appositely as “ES1”, authored by PW3– the same evinced that it was resolved that the defendants would reimburse the plaintiffs the 7 x 90kgs bags of beans J6 and twenty-five (25) chickens, which they had agreed to have owed the plaintiffs. [27] PW3 reiterated in his testimony that the defendants agreed that the chickens and the bags would be given back to the plaintiff. PW3 then ordered that PW1 be given back the beans that the plaintiffs owed by the 30th day of July, 2023, and that the chickens be given back to PW1 within two weeks from the date of their meeting. A document marked “ES2” was exhibited in this regard. [28] During cross-examination it was established that the headman had ordered that the beans be paid on 30th July, 2023. And that at no point did PW1 order that the debt owed to SIKOMBE be paid using the beans in question. [29] There were no questions in cross-examination. THE DEFENCE’S CASE [30] The defence had three (3) witnesses– DW1, the 1st defendant himself, JIMMU SIMUKANZYE, who much to his credit had an off the wall stylized sangfroid when giving the lowdown of the facts. [31] DW1 indicated that he used to work with PW1 from 2020, and that whenever she was doing her business of buying chikanda, finger millet and chickens, he would facilitate the transactions. [32] In 2021, PW1 borrowed seventeen (17) bags of maize from SIKOMBE, and agreed that in return she would give SIKOMBE fifteen (15) bags of fertilizer. PW1 in keeping with the promise paid off three (3) bags of fertilizer out of the fifteen (15) bags. [33] It was DW1’s testimony that he was instructed to use the 2 tins and 2 gallons of beans that the PW1 left in his custody as payment for the debt owed to SIKOMBE. DW1 then collected the tins in his house and those in the 3rd defendant’s house, which cumulative totalled up to J7 seven (7) tins and paid SIKOMBE. And upon paying using the seven (7) tins, SIKOMBE then said that PW1 would instead of paying back twelve (12) bags of fertilizer owed, would instead have to pay ten (10) bags owing to the quantity of beans he had used as payment. [34] In 2023, PW1 defaulted on her payment of the remaining fertilizer and was sued by SIKOMBE, and the courts ordered PW1 to payback the ten (10) bags owed to the same effectively 30th June, 2023. [35] It was DW1’s contention that, owing to the default by PW1 on her debt to the said SIKOMBE, PW1 has now turned and unfairly accused DW1 of keeping the bags herein as a way of securing payment for SIKOMBE. DW1 argued that he never had any bags of beans in his house. [36] During cross-examination it was contended that PW1 did not leave any 90kgs bags of bean in the house of DW1 and that DW1 was instructed by PW1 to settle her debt using the beans that he had in his home. DW1 indicated further that the only bag of beans left was a 50kgs bag belonging to PW2. Further, DW1 contended that he was instructed on the phone by PW2 that he should pay SIKOMBE using her beans. [37] Nothing was advanced in re-examination. [38] The defendants called as its second witness, DW1, who gave her testimony much in the manner of DW1, except to add as hereunder. [39] That PW1 instructed DW2 to pay SIKOMBE her debt– it was DW2’s testimony that she was disinclined to acquiesce to the request until PW1 insisted that the same be paid to SIKOMBE and DW1 obliged. [40] Thenceforth, PW1 commenced the matter with the headman, after the meeting the headman said the DW1 and DW2 had no issue to resolve against PW1. [41] It was DW2’s testimony that she kept beans for PW1 but not the amounts that she had alleged to have been their custody. J8 [42] During cross-examination DW2 disputed that PW1 came with a motor bike and collected 2 x 50kgs bags of her beans and left the PW2’s beans from the house of DW1 and DW2. DW1 and DW2 contended to have received the beans in the first place and that DW2 was instructed over the phone that the beans belonging to PW2 be used as payment for the debt PW1 owed to SIKOMBE. [43] The defendants last witness was DW3, BETHSHEBA NAKAPONDA, who related as hereunder. [44] In 2020, PW1 came to the village to buy chikanda and beans with PW2 around June of that year. PW2 never collected the beans from her home that year. The beans that DW3 sold PW2 was four (4) tins and two (2) gallons. [45] In 2021, PW1 came with the sister-in-law to PW2 so that the same could collect the beans in question, but never collected the beans. DW3 had indicated to PW2’s sister-in-law and PW1 that if the same had not collected the beans in good time the same may go to waste seeing as they had just replaced their roof with iron sheets. [46] In January, 2022, PW1 on the phone instructed DW3 to use the beans as payment for the debt PW1 owed SIKOMBE for the maize that she had taken from the same. DW3 told PW1 to tell PW2 to ask her herself. PW1 then gave PW2 the phone who confirmed the message herself. At the behest of PW2, DW3 then proceeded and paid SIKOMBE. [47] On 11th January, 2023, DW3 was summoned by the headman. At the headman’s place PW1 indicated that DW3 had used her 90kgs beans and fifteen (15) chickens. [48] It was DW3’s testimony that PW1 gave her daughter two (2) chickens to husband instead of the fifteen (15) chickens herein claimed. DW3 disavowed hearing anything about the beans needing to be reimbursed to PW1, but all the talk that happened was concerning the J9 chickens. DW3 then received a summons from this honourable court on 27th July, 2023. [49] During cross-examination DW3 disputed having an agreement with PW1 over the keeping of chickens, but that she only found her daughter of twelve (12) years keeping chickens for PW1 as per their agreement, which position PW1 found to be off her chump. DW3 also arrantly vacated the claim that goats had devoured the beans in question. It was DW3’s contention that PW1 left beans so that DW3 could pay off her debt. [50] Nothing was advanced in re-examination. UNDISPUTED FACTS [51] Having considered the evidence herein, I find the following to be common cause: (i) that the defendants owed beans to the PW1 and PW2; (ii) that PW1 used to do business with DW1 from 2020, and that PW1 would visit the village in question to procure the beans; (iii) that there is a familial relationship between PW1, DW1, DW2 and DW3; (iv) that PW1 owed SIKOMBE for ten (10) bags of maize taken on credit; (v) that there had been a suit against PW1. DISPUTED FACTS [52] Having comb through the facts herein, I find the hereinafter facts to be in dispute: (i) that DW1, DW2 and DW3 owed PW1 and PW2 7 x 90kgs bags of beans and twenty-five (25) chickens; (ii) that PW1 brokered a deal with DW3’s daughter for her to husband her chickens. ISSUES FOR DETERMINATION [53] And being prone to legal nuances– I find the hereinafter issues fundamental and needing to be resolved: (i) firstly, what does the notion of restitution entail; (ii) secondly, whether or not there was J10 conversion on the part of the defendants; (iii) thirdly, whether or not the defendant is liable to reimbursing PW1 and PW2 the 7 x 90kgs bags of beans and twenty-five (25) chickens, and whether the defendant do indeed owe the plaintiff herein; (iv) and lastly, whether or not the plaintiffs are entitled to the reliefs sought? ANALYSIS OF THE LAW AND FACTS [54] When PW1 and PW2 commenced process by way of writ of summons, one of the reliefs they sought was– restitution. Therefore, as a precursor to the herein issue, I will glancingly and with aid of authorities demystify the concepts hereunder: (a) What is restitution? In BLACK’S LAW DICTIONARY, 9TH EDITION, 2009; restitution is defined as being– “a body of substantive law in which liability is based not on tort or contract but on the defendant's unjust enrichment, or simply, return or restoration of some specific thing to its rightful owner or status”. (b) What is unjust enrichment? Black’s Law defines unjust enrichment, as a benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense. [55] In light of the claim by PW1 and PW2 against the defendants herein–I would wager according to: ALVIN, W. L. (2013). AN INTRODUCTION TO THE LAW OF UNJUST ENRICHMENT. SINGAPORE MANAGEMENT UNIVERSITY, that– the principle that no one shall be unjustly enriched at the expense of another has been invoked to rationalise the right to restitution in a number of cases which fall outside the provinces of contract and tort. This has eventually led to the recognition of an independent legal discipline known as the law of unjust enrichment. J11 [56] And dealing with the herein idea, the Court of Appeal in our jurisdiction in LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. 21 OF 2020, sympathized with re in BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50., concerning the test for unjust enrichment. The said criteria comprise the following questions: i. Has the Defendant been enriched? ii. Was the enrichment at the claimant's expenses? iii. Was the enrichment unjust? iv. Are there any defences? [57] Further in re BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6, it was stated … “that if the first three questions are answered affirmatively and the fourth negatively, the claimant will be entitled to restitution.” [58] On whether or not there was conversion on the part of the defendants, BLACK’S LAW DICTIONARY 2ND EDITION’s defined conversion as: … the wrongful possession or disposition of another’s property as if it were one’s own an act or series of acts of wilful interference without lawful justification with an item of property in manner inconsistent with another’s right whereby that other person is deprived of the use and possession of the property it is an act that interferes with the dominion of the true owner’s right and depriving him of the possession of the goods to an extent as to be inconsistent with the rights of the owner. [59] In more modern editions, the 9th edition to be particular, the tort of conversion is defined as, “the act of appropriating the property of another to ones benefit or to the benefit of another.” (Emphasis mine) [60] Nevertheless, like in all cases the loss must be proved. It is easy to prove the loss where the tortfeasor keeps the property in that the plaintiffs only needs to prove the value thereof, in the instant case – the 7 x 90kgs bags of beans and twenty-five (25) chickens, which is alleged to J12 have been appropriated by the defendants herein. Further, the plaintiffs have lead evidence germane to this matter. Thus, there can be no doubt that a wrongful taking of another person’s property as did the defendants constitutes the tort of conversion. [61] In support of the foregoing, the case of MERCANTILE BUSINESS FINANCE LIMITED V. SIBEC DEVELOPMENT LIMITED, 1992 1 WLR 1253, it was held inter alia that: … that to establish the tort of conversation, one needs to prove an overt act of withholding possession from the true owner… In casu, this overt act can be properly gleaned from the defendants’ denial and failure to hitherto avail the 7 x 90kgs bags of beans and twenty-five chickens to the plaintiffs. [62] Moreover, CLERK AND LINDSELL ON TORTS 12TH EDITION, (1961), the learned authors state that: - “The general rule is that the right to bring an action for conversion or wrongful detention of goods belong to the person who can prove that he had at the time of the conversion or detention, either actual possession or immediate right to possess” [63] In the case of ZAMBIA NATIONAL COMMERCIAL BANK LIMITED V. KAPEKA BUTTON MHONE (2000) ZR 138., it was stated inter alia that: - “Where the act done is necessarily a denial of the owner’s right or assertion of a right inconsistent therewith, intention does not matter. Another way of reaching the same conclusion would be to say that conversion consists in an act intentionally done inconsistent with the owner’s right though the doer may not know of or intend to challenge the property or possession of the true owner.” (Emphasis mine) J13 [64] At this point– it is worth noting that in a claim for conversion, the measure of damages is normally compensatory, with the object being to restore the respondent to the position which she occupied before the tort was committed. An award of damages in conversion must not operate to penalize the defendant or to grant a windfall. The law on this point is summarised in CLERK AND LINDSELL ON TORTS (14TH EDITION) para. 1150 which states; …. Damages for deprivation of goods – The damages to which a plaintiff who has been deprived of goods is entitled is prima facie the value of the goods together with any special loss which is the natural and direct result of the loss. (Emphasis mine) [65] HALSBURY'S LAWS OF ENGLAND (supra) at Pg 389 Para 616 on the measure of damages. The authors state – Nominal measure of damages. … In general, damages in conversion are compensatory, their object being to repair the actual loss which the claimant suffers by reason of the conversion. This conforms to the general rule that damages in tort must (so far as money can do so) put the person whose right has been invaded in the same position as if it had been respected. Accordingly, an award of damages in conversion must operate neither by way of penalty to the Defendant nor by way of windfall to the claimant. In general, there must also be a causal connection between the act of conversion and the loss sustained, and proof of actual loss. (Emphasis supplied) [66] Conventional measure: value of goods. The conventional measure of damages in conversion is the value of the goods converted together with any consequential loss which is not too remote. That measure normally applies where the conversion takes the form of a wrongful deprivation or misappropriation and the goods are not later returned. J14 DETERMINATION [67] I am saddled with the weight of meting out an even-handed decision in this matter. And having meticulously considered and applied my mind to the facts and law herein, and I am persuaded that this case rests squarely on the notion of conversion. [68] When viewed in the round– one cannot but settle it to be a forgone conclusion that, the defendants were playing fast and loose with the facts when they told their contrived version of the facts. [69] I find the whole palaver by defendants incredible to say the least– not merely that their version of the facts were not quite in the same ballpark, but that the defendants have not availed a scintilla of evidence to aptly establish their argument, except to engage in nothing more than talks with a smack of casuistry all in a bid to accentuate the fact that they only owed the PW1 and PW2 a paltry quantity of: two (2) tins and tow (2) gallons of beans on the part of DW1 and DW2 and four (4) tins and two (2) gallons on the part of DW3, with nary a say on the number of chickens owed to PW1, except when DW3 made a tangential reference to the same. [70] Curiously, DW3 expediently brought out the fact that she was in blissful ignorance on what she alleged to have been a matter that PW1 and her daughter, a minor of twelve (12) years I must add– had arranged that she would husband chickens for PW1– and further in her testimony, DW3 found it fit for purpose to not take issue with the well- established fact that she alleged that the goats had eaten the legumes in question. [71] And to fan the flames– DW1, DW2 and DW3 did not oppugn the fact that PW3 ordered that the beans and chickens be reimbursed to PW1 and PW2 on 30th July, 2023, and two weeks from the instruction by J15 PW3, the chickens were to be surrendered to PW1, but the defendants opportunely elected to pay off the beans they alleged to have had in their custody to a third-party– SIKOMBE. [72] I will go out on a limb here and say that– it is far-out that, DW1, DW2 and DW3 all received instructions from PW1 about her debt to SIKOMBE being settled at the instance of PW2, all under very unique circumstances– over the phone, and all of them claiming to have received instructions on how the debt was to be serviced using the beans they had in their possession, which beans some claimed they had not received from the PW1, and manifestly evincing varied quantities of the beans that they had received. [73] Thus, one cannot but settle that the defendants herein were skating over with the facts– how one may wonder? Well. by rehearsing what appears to be a contrived version of the facts. Further, PW3 in his testimony asserted that DW1 had agreed to being liable and owing until he suspiciously seesawed. [74] In re HAONGA AND OTHERS v THE PEOPLE (1976) ZR 200 (SC), it was held inter alia that: … “where a witness has been found to be untruthful on a material point the weight to be attached to the remainder of his evidence is reduced; although therefore it does not follow that a lie on a material point destroys the credibility of the witness on other points (if the evidence on the other points can stand alone) nevertheless there must be very good reason for accepting the evidence of such a witness on an issue identical to that on which he has been found to be untruthful in relation to another accused.” (Emphasis supplied) J16 [75] Further, according to PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010) paragraph 12 – 36 at P. 365: “The credibility of a witness depends on his knowledge of the facts, his intelligence, his interestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury. Amongst the obvious matters affecting the weight of a witnesses’ evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case inquired into either in direct examination to enhance or in cross – examination to impeach the volume of his testimony. So, all questions may be asked in cross examination which tend to expose the errors, omissions, inconsistencies, exaggerations, or improbabilities of the witnesses’ testimony”. (Emphasis added) [76] And addressing the issue of cross-examination– the learned authors of CROSS ON EVIDENCE 6TH EDITION (1985) stated that: “the object of cross-examination is two-fold, first, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted, and secondly to cast doubt upon the accuracy of the evidence-in-chief given against such party”. (Emphasis supplied) [77] Lord Mansfield in re GRAVE V. MILLS 7 H& N 917, stated that: … “a man shall not be allowed to blow hot and cold - to affirm at one time and deny at another - making a claim on those whom he has deluded to his disadvantage, and founding that claim on the very matters of the delusion. Such a principle has J17 its basis in common sense and common justice - and it is one which the courts of law have in modern times usefully adopted.” [78] In view of the foregoing– I find DW1, DW2 and DW3’s version of the facts to beggar belief– partly for the reasons hereinbefore highlighted. And in a further attempt at pulling the wool over this court’s eyes– the defendants expediently brought in the fact that PW1 owed SIKOMBE for seventeen (17) bags of maize which she had taken on the pretext that she would barter the same with fifteen (15) bags of fertilizer– and that PW1 was sued in default of the same in a local court, which version of the facts I find inconsequential and I hold the view that– I fail to see how PW1 suit by the said SIKOMBE can be deemed a notorious fact, not warranting the need for evidence– as I cannot do so without misstating. [79] The Supreme Court in re WESLEY MULUNGUSHI V CATHERINE BWALE MIZI CHOMBA (2004) Z. R. 96, it was held inter alia that where a trial court relied on evidence that was not before it, that amounted to a misdirection on the part of the court. (Emphasis supplied) [80] To boot, DW1 in advancing the preceding notion, spun a tale that– PW1 was implicitly attempting to unjustly enrich herself and service her debt when she claimed that the defendants owed her a fanciful number of 7 x 90kgs bags of beans and ten and fifteen free range chickens respectively, which DW1 and DW2 doughtily left out when recounting their sworn testimonies, nevertheless DW1 was seen surrendering two (2) chickens as atonement for his liability, which account he never challenged. [81] Notwithstanding, PW1 and PW2 cannot now be seen to make a virtue (out) of the defendants’ failure to aptly make their defence. This was the position in re KHALID MOHAMED v THE ATTORNEY-GENERAL J18 (1982) Z. R. 49 (S. C.), wherein it was held inter alia that: a plaintiff cannot automatically succeed whenever a defence has failed; he must prove his case. (Emphasis supplied) [82] Thus, it behoves the plaintiffs to prove that they are indeed entitled to the 7 x 90kgs bags of beans and twenty-five (25) chicken that they are claiming. The Court of Appeal in re MTUMBI GOMA V ROY MWABA APPEAL NO. 124 OF 2020, stated that: the law is clear that in civil matters a party needs to prove his case on a balance of probabilities. In so doing a party needs to adduce evidence in support of any of his or her claims. It stands to reason that in the absence of any evidence to support the claims they cannot be upheld. (Emphasis mine) [83] Moreover, the Supreme Court in re MARY MUSONDA VS ATTORNEY- GENERAL (1993-1994) ZR9 and MIDLAND BREWERIES (PVT) LIMITED VS DAVID MUNGENYEMBE (SCZ JUDGMENT NO.3 OF 2017) –it is abundantly clear that the onus is on a claimant to present documentary proof to support their claims and in the absence of any such proof or evidence, a litigant's claim should react against that litigant. (Emphasis mine) [84] Thus, should I inadequately deal with the issue– whether or not the plaintiffs have proved their claim against the defendants, the inevitable corollary would be an erroneous judgment and miscarriage of justice. In re ANTONIO VENTRIGLIA AND ANOTHER V PTA BANK SCZ JUDGMENT NO. 1 OF 2010, it was held that the failure by a trial Judge to adequately deal with evidence amounted to a miscarriage of justice. (Emphasis mine) [85] Further, it is worth noting that– ignoring evidence without disclosing the reason amounts to a gross misdirection which renders the judgment of the trial Court amenable to reversal as held in the case of J19 JUSTIN CHANSA V LUSAKA CITY COUNCIL (2007) Z. R. 256. (Emphasis mine) [86] And before I proceeded further– PW1 herein introduced evidence whose provenance is criminal in nature. I will pose here momentarily and address the procedural propriety of providing evidence from criminal proceedings in a civil matter– seeing as PW1 adduced a warrant of commitment on remand against DW1 pursuant to sections 202 and 227 of the Criminal Procedure Code in a civil matter. [87] Well. The correct position of the law as it currently stands in Zambia is that a civil court is precluded from referring to criminal convictions or relying on the results of criminal proceedings in civil trials1. To put it differently, the law does not outlaw the calling of criminal evidence into civil proceedings per se– the law instead proscribes the introduction, in evidence, of the conclusion in criminal proceedings, i.e., a conviction, in the context of civil proceedings but not the process. Interestingly, what PW1 called into evidence was not a conviction certificate, or a judgement, thusly–the same is fit and proper to be used as evidence in a criminal matter. [88] For the same reason– in re LISWANISO SITALI & OTHERS V. MOPANI COPPER MINES PLC (2004) Z. R. 176 the court held inter alia that: “In terms of admissibility of evidence, there is no difference in principle between a civil and a criminal case. In a criminal case, the judge always has a discretion to disallow evidence, if the strict rules of admissibility would operate unfairly against an accused.” (Emphasis supplied) 1 (i) KABWE TRANSPORT COMPANY LIMITED V. PRESS TRANSPORT (1975) LIMITED: (1984) Z. R. 43; (ii) MANFRED KABANDA AND KAJEMA CONSTRUCTION V. JOSEPH KASANGA: SCZ JUDGMENT NO. 2 OF 1992; (iii) CHIBUYE V. ZAMBIA AIRWAYS CORPORATION LIMITED: SCZ JUDGMENT NO. 2 OF 1986. J20 [89] Therefore, I see no procedural impropriety with the admission of such evidence. Further, I am persuaded that no injustice will be occasioned on the defendants by admitting the same into evidence other than the fact that justice will be served in the process. [90] In the main, I have interrogated the testimony by the witnesses and documentary evidence herein, i.e., “ES1”, the missive to this honourable court evincing the fact that the defendants did indeed owe the plaintiffs the items in question and lastly, “ES2”, being the minutes that PW3 had taken when they had been in conference. [91] It is glaringly apparent that DW1, DW2 and DW3, conjured up a jerry- rigged defence with very little chop to it– the arguments advanced, i.e., that they settled PW1’s debt at the behest of PW2, and that there was a suit wherein PW1 was ordered to pay SIKOMBE and the contention that PW1 by claiming for the 7 x 90kgs bags of beans and twenty-five (25) chickens, was simply scouting around, and using DW1 as a scapegoat; were arguments hard up for merit. [92] In view of the preceding facts and evidence– I am persuaded that the plaintiffs have proved their case on the balance of probability, and that the inevitable corollary is that the same may proceed for damages resulting from being kept out of his property, however, the plaintiff may but succeed in recouping only nominal damages. [93] Further, I cannot but in the interest of justice and good conscience lend countenance to what was said not in so many words in re MOSES V MACFERLAN (1760) 2 BURR 1005, wherein Lord Mansfield spoke of an action to recover assets and underscoring the need to refund– and assert that the plaintiffs should recoup whether– for assets paid by mistake; or upon a consideration which happens to fail; or for assets got through imposition, (express, or implied;) or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, J21 contrary to laws made for the protection of persons under those circumstances. (Emphasis provided) [94] Thus, having established the tort of conversion against the defendants, I award the plaintiffs nominal damages and order that restitution be made on the plaintiffs of the 7 x 90kgs bags of beans and twenty-five (25) chickens, in default of which the defendants are ordered to pay the market value of the 7 x 90kgs bags of beans and twenty-five (25) chickens, which shall carry interest from the date of issue of the writ until judgment, and thereafter at a rate of six percent per annum until payment. The plaintiff is also awarded costs incidental to this suit. [95] The same shall be settled by the defendants on or before the 30th day of November, 2023. [96] Either party has the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGEMENT DELIVERED AT MBALA ON 17TH AUGUST, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J22