Tusankine Saving Group (Mbalazi Simutowe Ignashi) v Joel Simwinga (2023/SD/33) [2023] ZMSUB 5 (18 May 2023)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SD/33 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN TUSANKINE SAVING GROUP PLAINTIFF (MBALAZI SIMUTOWE IGNASHI) AND JOEL SIMWINGA DEFENDANT Before: Hon. Deeleslie Mondoka For the Plaintiff For the Defendant : : In person In person JUDGMENT Cases referred to: i. ii. iii. Moses v Macferlan (1760) 2 Burr 1005; C and S investment & Others v. Attorney General SCZ Appeal No. 23 of 2003; Mercantile Business Finance Limited v. SIBEC Development Limited, 1992 1 WLR 1253; and J1 iv. In Zambia National Commercial Bank Limited v. Kapeka Button Mhone (2000) ZR 138. Other materials referred to: i. Subordinate Court Act, Chapter 28 of the Laws of Zambia. Other materials referred to: i. ii. iii. iv. v. Black’s Law Dictionary, 2nd Edition, 1910; Black’s Law Dictionary, 9th Edition, 2009; Clerk and Lindsell on Torts, 12th Edition, (1961); Clerk and Lindsell on Torts, 14th Edition, 1975. para. 1150; and Halsbury's Laws of England (supra) at Pg 389 Para 616. Introduction 1. This Judgement proceeds from a liquidated claim which the plaintiff made against the defendant for the sum of K13, 623.00 being an outstanding debt owed to the plaintiff by the defendant, which debt the defendant has failed and/or neglected to liquidate, together with interest and costs. 2. The matter was commenced on 17th April, 2023, by way of default summons, by the plaintiff in this matter, which claim was succinctly outlined in the default writ of summons (hereinafter referred to as the writ) and was expediently read out in open court in the hearing of the both parties by this honourable court in intelligible fashion. Background Facts 3. I will preface the background facts with a thought from a storied jurist– Anthony Scalia, who said: … “Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law J2 applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case”. (Emphasis mine) 4. With that said, hereafter is a recapitulation of the facts in support of the claim, which I heard viva voce evidence of. 5. When this claim was published, the plaintiff denied owing the plaintiff the quantum meticulously captured in the writ as K13, 623.00, but instead claimed that he only owed the plaintiff a paltry sum of K2, 900.00. 6. On 27th April, 2023, when the matter came up for trial, PW1, the chair- person of the savings group in this matter took the stand and related as hereunder. 7. In December, 2021, the defendant approached me (PW1) in the company of my cohorts and asked if he could interest us with a proposition for the establishment of a savings group, which he would mobilize and facilitate, seeing as he had received the requisite training in the area. 8. Elated by the proposition, we quickly organised our savings group, and established a weekly savings scheme, remarked PW1. As part of our modus operandi, we would save and borrow out the funds among ourselves with interest of about ten (10%) percent and this cycle was sustained for the better part of five (5) months. 9. We then reached a consensus that all outstanding debts were to be paid and consequently borrowing ceased thereat. 10. The defendant then gathered all the monies that had been collected on the pretext that he needed to surrender the funds for safe keeping at the office which had trained him, which office is hitherto terra incognita. J3 11. However, before that, PW1 referred the court to an aide-memoire marked “TSG1”, giving the lowdown on the defendant’s borrowings and debt. The same provided that the defendant had borrowed a K3, 148.00 which he never paid back, the defendant went ahead and requested for a K1, 658.00 (which was collected from the savings group) on the ruse that the same was needed for certification of their savings group with PACRA, and another K830.00, and said with that we would be having access to laying hens and fertilizer. 12. The total sum of the monies that the defendant collected from the group was K13, 623.00, which amount is the subject of this suit. 13. Upon receipt of the monies in question, the defendant employed multiple evasive manoeuvres in that– every time the meeting required his presence for to render an account on multiple occasion, the defendant was never available. 14. Disconsolate with the defendant’s behaviour, PW1 and allies elected to air their grievance before the headman of the area, and as a consequence, they broached the subject with him– by so doing they managed to procure the presence of the defendant, who under protest complied and did make an undertaking during the meeting that he would avail the funds in question, but has up till now not made good on his promise. 15. PW1 and sympathizers made a trip back to the headman and indicated to him that there had been not corresponding action on the part of the defendant, notwithstanding the undertaking he made in his presence. 16. The village headman was kind enough to write a charming letter dated 31st March, 2023, appositely referenced: “COMPLAINT FROM A SAVINGS GROUP AGAINST JOEL SIMWINGA” addressed to the J4 station Inspector, Mbala Police, as the matter was out of his purview. The missive is marked “TSG2”. 17. At the police station we were advised to proceed against the defendant by instituting a civil action against the same, seeing as the defendant had heretofore admitted to having and owing the funds in question. 18. PW1 indicated when cross-examined that he was speaking in the capacity of the chair-person of the savings group. 19. The Plaintiff called as its second witness, PW2, Riley Cheelah– a geriatric of a lively disposition; acute intelligence and well-advised– the same gave a regaling exposition of the facts very much in the manner of PW1, except to supplement as hereunder. In parenthesis, PW2 was to coined a phrase– a brilliant raconteur and spoke most prodigiously in his testimony. 20. When the defendant gathered us, he maintained that he was working in conjunction with social welfare. And being under the subordination the welfare, he would ensure that they would grant us the necessary aid regarding farming and farming supplies, in both poultry and animal husbandry. 21. PW2 related that, the group was won over by the defendant owing but not limited to the ideas he championed under banner of “faithfulness and integrity”, coupled with the promise of working with the government. 22. Further, the defendant’s active community health outreach coupled with: a winsome attitude; portrayal of competence, and being of a seemingly impeccable track record won us over until our agreement was consummated with the defendant. 23. The defendant also adverted that the money we would be collecting would be sent to a government office, which was never clearly disclosed. J5 24. PW2 maintained that to the best of his recollection– 14th June, 2022, was the tentative date scheduled for apportioning the money between us, alas, the same fell through, along with other successive dates. 25. Fortunately, we met the defendant after many failed attempts at addressing the issue concerning the sharing of the proceeds. He gave us an undertaking that that the monies would be availed and shared. 26. PW2 related that he had indicated to the defendant and made it abundantly clear that he was unwell and was scheduled to travel for further management by a letter dated 17th august, 2022, but owing to the undertaking made by the defendant he suspended the same and invested the monies with the hope of turning a profit. 27. Alas, PW2 has hitherto been having a thin time (of it) since the defendant went back on his word. I was referred to exhibits to “TSG3”, a patient referral form from Mbala General Hospital, for one Riley Cheelah, PW2, as well as others documents collectively referred to as “TSG4”, member share pass books. 28. There was a simmering tension between the defendant and PW2 during cross-examination, fortunately, before the close of cross- examination PW2 gathered his wits and stayed his frustrations. No questions were asked in re-examination. 29. The plaintiff called the third and last witness, PW3, a vicenarian whose account of the facts comported admirably with the preceding witnesses. 30. The long and short of PW3’s testimony was in part that, on 13th December, 2021, when the savings group was started, they used to save on a Thursday weekly. After three (3) months the defendant requested the that monies be sent to social welfare office. 31. The defendant proposed that the group needed to formalize their savings by way of certification for them to legitimately carry on the J6 business of saving, he suggested that contributions of K60.00 each be made, but in the interest of time and as a matter of convenience K1, 658.00 be drawn from the savings group as payment for certification. 32. PW3 maintained that, during the life time of the savings group, the defendant borrowed K2, 900.00, which he was supposed to payback at a ten (10%) percent interest which translated to roughly, K3, 190.00. 33. The defendant’s borrowings and the monies he got from the group, and funds for certification, with its accrued interest plus cash in hand from the individual group contributions aggregated to about K13, 623.00. 34. In cross-examination the defendant in interrogating PW3, inquired into why PW3 would he have given him money without having him sign for it? PW3 in response gave a pitiful response that– they trusted the defendant. 35. There were no questions in cross-examination. The Defence’s Case 36. The defence only had one witness to render an account, DW1, the defendant himself, JOEL SIMWINGA, a middle-aged man, who resides at Plot No. 317, Chila View, Mbala. 37. DW1 was considerate enough to preface his submission with how much he did not want to waste the courts time and as a consequence he would keep his submission brief and to the point. 38. He narrated that the savings group was inaugurated in December, 2021, and that according to their constitution (which was not exhibited), it was agreed that they would save for a productive period being a six (6) months stint. Upon the expiration of the same we needed to have shared out the monies, and all the borrowers in the group were implored to payback including myself, but I defaulted. J7 39. We extended the date for sharing the monies, that is how come I borrowed the K2, 900.00 which is the only money I owe the group. 40. We drew out K1, 658.00 from purposes of certification with PACRA and opening of an account with the bank. We got the money and paid, but issues arose of getting passport size photos and copies of National Registration Cards (NRC). 41. All that should have been done and/or availed in order to get the TPIN number and an account up and running, but the group left all that responsibility to me and I failed as result. 42. DW1 instanced another savings who managed to come up with all the necessary documentation and all went well with them. I failed to see how this non sequitur aided the defendant. 43. He then refereed this court to a document listing other borrowers who owed the group monies to the tune of K20, 210.00. the same is marked “JS1”. 44. In cross-examination the DW1 denied owing any monies besides the K2, 900.00 which he had borrowed from the savings group. Undisputed facts 45. Having considered the evidence herein, I find the following to be common cause: i. There was a savings group established at the instance of the defendant ii. The defendant borrowed K2, 900.00 from the savings group. iii. The sum of K1, 658.00 was taken from the savings group for purposes of certification. J8 Issues for determination 46. The legal issues that are so fundamental and ought to be resolved are as follows: (i) whether or not the defendant is liable to paying the K13, 1623.00 owed to the plaintiff, and or whether or not the monies taken by the defendant in this case can be construed as a debt? (ii) whether or not there was conversion? (iii) whether or not the plaintiff is entitled to the relief sought? Analysis of the law and facts 47. By way preface, I am drawn to Section 15 of the Subordinate Court Act, Chapter 28 of the Laws of Zambia, enacts as follows: … “In every civil cause or matter which shall come in dependence in a Subordinate Court, law and equity shall be administered concurrently; and a Subordinate Court, in the exercise of the jurisdiction vested in it by this Act, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or reliefs whatsoever, interlocutory or final, as any of the parties thereto may appear to be entitled to, in respect of any and every legal or equitable claim or defence properly brought forward by them respectively, or which shall appear in such cause or matter; so that, as far as possible, all matters in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided; and, in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail”... J9 48. Thus, on whether or not the defendant owes or whether there is a debt. Well, as to what facts the court would accept as sufficient to show that the defendant received the money on the plaintiff’s behalf, Lord Mansfield had provided the answer in Moses v Macferlan (1760) 2 Burr 1005: … “payments made under mistake or duress, or for a consideration that has failed, etc. On establishing any of these, the law would imply a promise… If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract” … (emphasis mine) 49. On whether or not there was conversion on the part of the defendant, 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. 50. 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) 51. Providentially, in re C and S investment & Others v. Attorney General SCZ Appeal No. 23 of 2003, the Supreme Court defined property as to include money. (Emphasis mine) 52. However, 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 plaintiff only needs to prove the value thereof, in the instant case – the amount J10 subject of conversion, which as a consequence has been appropriated by the defendant. Further, in the case in casu, the plaintiff has lead evidence germane to this matter and have as a result established their case. Thus, there can be no doubt that a wrongful taking of another person’s property as did the defendant constitutes the tort of conversion. 53. 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 defendant’s denial and failure to hitherto avail the funds in question to the plaintiff. 54. Additionally, 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” 55. In 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) J11 56. On Whether or not the plaintiff is entitled to the relief sought. In this case the plaintiff seeks for the payment of K13, 623.00, interest and cost incidental to the action. 57. 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 is 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. 58. Halsbury's Laws of England (supra) at Pg 389 Para 616 on the measure of damages. The authors state – 615. 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. 616. 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 J12 remote. That measure normally applies where the conversion takes the form of a wrongful deprivation or misappropriation and the goods are not later returned. (Emphasis mine) Determination 59. I am saddled with the burden of meting out an even-handed decision in this matter. 60. I have carefully considered and applied my mind to the facts and law herein, and I am persuaded that this case does not hinge merely on the fact that the defendant owes the same money in the sum of K13, 623.00, but implicit in the suit is the idea of appropriation. 61. It is worth noting that the defendant in his testimony has given nary a scintilla of evidence in his defence nor lead evidence of probative value to impeached the fact that he appropriated the funds in question, but he seems to be labouring under the misapprehension that by addressing the K2, 900.00 debt owed, ipso facto, absolves him of the fact that he appropriated the monies in question forgetting that his studied acknowledgment of the debt is of marginal bearing on the action. 62. However, this matter when viewed in the round– one cannot but settle it to be a forgone conclusion that, the defendant was playing fast and loose with the facts in telling his contrived version of the story. 63. I find his version of the facts to beggar belief, for the simple reason that he has not availed and or accounted for the monies that were given to him, except to engage in nothing more or less than casuistry to accentuate the fact that he only owes the group the paltry sum of K2, 900.00, which argument is in my considered opinion, a put-up job. 64. In a further attempt to pull the wool over this court’s eyes, the defendant expediently exhibited a list of members who owe the savings J13 group monies, which list I find inconsequential to the proceedings, seeing as it is but a desperate attempt at underwhelming the apparency of his conversion. 65. Therefore, in order to judiciously pronounce myself on the case in casu, a proper coalescing of equity and law fundamental. 66. I cannot but in the interest of justice and good conscience lend countenance to what was said in the case of Moses v Macferlan (1760) 2 Burr 1005, wherein Lord Mansfield spoke of an action to recover money which ‘ex aequo et bono’ (according to equity and good conscience) or ‘by the ties of natural justice and equity’ the defendant ought to refund. In underscoring the need to refund, he observed that the refund should be: … “for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express, or implied;) or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances” … (Emphasis mine) 67. The defendant did not in this matter impeccably dispute the fact that he appropriated the quantum in question except to niggle incessantly about how PW3 was remiss in assigning monies to him without so much as allowing him to sign against the same, as if to say, I merely exploited the naïve and porous way with which the monies were given to me. 68. While the defendant may have come into possession of the goods innocently– but, in remaining aloof, and assuming a nonchalant manner when required to render an account or give the lowdown on the whereabouts of the wherewithal, the defendant’s behaviour would engender in a right-thinking individual the logical inference that J14 he had converted the same to his own use and would subsequently be at fault of an “unauthorised assumption of the powers of the true owner”. 69. In the premises, I am persuaded that the plaintiff has proved its 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, nevertheless the plaintiff may but succeed in recouping nominal damages. 70. Thus, having established the tort of conversion against the defendant, I award the plaintiff nominal damages of K13, 623.00 against the defendant, which amount 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. 71. 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 18TH MAY, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J15