AJ Trading Company Limited v Chilombo (HN 668 of 1971) [1973] ZMHC 668 (26 February 1973)

A J TRADING COMPANY LIMITED v CHILOMBO (1973) ZR 55 (HC) HIGH COURT BRUCE - LYLE J 26th FEBRUARY 1973 I (Case No. HN 668 of 1971) 20 Flynote Contract - Sale of goods - Failure of purchaser to pay - Attempt by third party to settle - Admission of liability by third party. Contract - Statement of Claim - Denial of allegation in Statement of Claim - Effect of - Evidence admitted in rebuttal of allegation not formally denied by defendant in I answer to Statement of Claim - Effect of. 25 Headnote The plaintiff sold and delivered goods to the proprietor of a shop which subsequently came under the control of the defendant when the proprietor left the country after unsuccessfully negotiating with the defendant for the sale of the shop to the defendant. The proprietor failed to pay off the plaintiff in full before leaving and attempts were made by 30 the plaintiff to secure payment for the goods from the defendant during the time of the negotiations between the proprietor and the defendant and after the departure of the proprietor. The defendant made attempts to settle during the period of negotiations but never settled in full. The plaintiff brought an action against the defendant, alleging on his 35 Statement of Claim that the defendant was the proprietor of the shop - an allegation which was not formally denied by the defendant until after the trial started. The defendant then alleged that she was not the proprietor and no objection was made by the plaintiff's advocates to the I admission of this evidence. 40 ■ ■ 1973 ZR p56 BRUCE - LYLE J Held: (i) The efforts of the defendant to settle with the plaintiff did not amount to an admission of I liability but were merely designed to aid the negotiations then going on. 5 (ii) An admission by the defendant of an allegation in the plaintiff's Statement of Claim means that there is no issue between the parties on that point and no further evidence is admissible in reference to that point. (iii) The plaintiff's advocate did not object to admission of evidence of the defendant that she was never the proprietor of the shop. Therefore 10 the evidence, once admitted, could not be ignored by the court. ■ (iv) The court was bound to consider the probative value and effect of this evidence and as it was not challenged, the defendant was to be deemed not to have been the proprietor of the I shop when the goods were delivered. 15 Cases referred to: (1) Pioneer Plastic Containers Limited v Commissioners of Customs and Excise (1967) Ch. D. 597. Ellis and Co., for the plaintiff. I A J Mkandawire and Co., for the defendant. 20 Judgment Bruce - Lyle J: Plaintiff's claim against defendant is for K1,031.25 25 being balance of price of goods sold and delivered to the defendant. The Statement of Claim reads: ■ "1. The Plaintiff is a limited Company of General Dealers and 25 Wholesalers and Importers of general merchandise carrying on business at Moffat Avenue, Ndola, P. O. Box 102, Ndola. ■ 2. The Defendant was the proprietor of Bane Twampane Stores which Store was situated in Ndola. 3. On the date set out hereunder the Plaintiff's sold and delivered 30 to the Defendant various goods for retail at the said Bane Twampane Stores. Particulars 11 - 2 - 70 Invoice No. 141 - 48 K1,771.25 K1,131.25. ■ ■ 4. The Defendant has since the date of this Invoice paid to the 35 Plaintiff the sum of K640.00 leaving a balance of 5. The Defendant has refused or neglected to pay the said sum to the Plaintiff despite demand AND the Plaintiff claims the sum of K1,131.25." It appears the amount claimed on the writ is different from the 40 amount claimed in the Statement of Claim. It is however evident that the amount claimed on the Statement of Claim is wrong due to wrong arithmetical calculation on the part of the solicitors. The Statement of defence also reads: ■ BRUCE - LYLE J " (1) The defendant denies ever having ordered goods from the Plaintiff at any time therefore defendant does not 1973 ZR p57 I know anything about the invoices referred to in the Statement of Claim." Plaintiff's evidence in support of the claim is that as manager of the plaintiff company he had only one transaction with Bane Twampane 5 Stores. That plaintiff on 11 - 2 - 70 supplied goods to Bane Twampane Stores on Invoice No. 141/48 and that the goods were signed for by one L. J Patel. That the total value of the goods supplied was K1,771.25 and that Mr L J Patel was then the manager of Bane Twampane Stores Plaintiff manager said that on 2 - 11 - 70 a part - payment of K500 was 10 made by cheque, the drawer of the cheque being A Chilombo, the defendant, and on 5 - 12 - 70 a further payment by cash was made by Mr L. J Patel. Another payment was made by cheque drawn by A Chilombo dated 15 - 1 - 71 but this was returned by the Bank stating that the account I had been closed. 15 Plaintiff manager admitted that he was not present when the goods were delivered to Mr Patel and therefore his knowledge of delivery depended on the invoice. Mr Patel is no more in the country. He said he instructed his solicitors to write to defendant demanding payment I of the balance of the price of goods. Defendant then replied as follows: 20 ■ "Dear Sir, We don't know all about these credits from A J Trading Co. Ltd. We want to see a duplicate invoice. We remain waiting for you. Yours faithfully, 25 ■ J K. CHANDA, for Mrs A Chilombo." The plaintiff company thereupon sent the following reply dated 3rd May 1971: "Dear Madam, 30 ■ Re: A J TRADING CO. LTD Further to your letter of the 1st April we have heard from our clients as follows: 'In reply we have to inform you that the goods were sold and delivered to M/S Bane Twampane Stores of Ndola on 11th February, 35 1970, which is one of the businesses of the above debtor. Goods were sold amounting to K1,771.25 as per enclosed photostat copy of invoice No. 00141 - 48 and the receipt of goods was signed on the invoice by the manager Mr L. J Patel on delivery. ■ Part payment was made by cheque amounting to K500.00 40 drawn by A Chilombo on 2nd November, 1970. An amount of K140.00 was paid in cash on the 5th December, 1970. Another cheque was given to us amounting to K600.00 which was also drawn by ■ BRUCE - LYLE J Mrs A Chilombo but it was unpaid. We are enclosing herewith a photostat copy of the said cheque amounting to K600.00 which was ultimately returned by the Bank unpaid, which proves that Mrs A Chilombo knows and is liable I for this debt.' 5 Unless we receive your remittance in payment of the full amount, which is K1,131.25, within the next seven days, we will issue a writ of summons against you. 1973 ZR p58 Defendant subsequently sent the following letter dated 7th May, 1971: Yours faithfully, ELLIS AND CO." 10 ■ "Dear Sir, We acknowledge receipt of your letter dated 6th May, 1971, as regards the above shop. The above shop is no longer in existence the manager Patel run away to India. 15 The courts issued out orders to ■ have the goods sold on auction to pay off two creditors. We therefore have to pay the 14 firms including you from other sources and we are prepared to start paying you If there is any further correspondence regarding the above shop please direct them to Messrs Mkandawire and K100.00 per month until the whole amount is settled that is the best we can do. 20 ■ Solicitors, P. O. Box 1975, Kitwe, who are handling the Bane Twampane case for us. Yours faithfully, 25 ■ H. P. CHILOMBO. In the letter dated 7 - 5 - 71 written by H. P. Chilombo there was the offer to the plaintiff company of instalments of K100 per month. The evidence is that only one instalment was I paid leaving a balance of K1,031.25 which is being claimed on the writ. 30 The witness for the plaintiff said he did not know defendant and got to know about her from Mr Patel as the owner of Bane Twampane Stores. Under cross - examination witness admitted that he dealt with Mr Patel. That Mr Patel was the one who brought the cheque to him and that when the cheque was unpaid he approached Mr Patel. He also said that 35 A Chilombo had made no direct admission of the ■ delivery of the goods to her. Defendant in her evidence denied owning the Bane Twampane Stores and also denied ordering the goods on the invoice, neither had she received them. She however admitted issuing the cheques for K500 and K600 to the 40 plaintiff. ■ 1973 ZR p59 I BRUCE - LYLE J She said she got to know Mr Patel in 1969 when she traded with him by buying goods for Bane Twampane Stores. That it was during the "Economic Reform" when Patel approached her and asked her to buy the shop but she did not buy it. The arrangement with Patel was for her to buy the shop and to pay for it "little by little" but she did not pay 5 anything towards the purchase of the shop. She and another person by name Mrs Kalikeke were to buy the shop. Defendant further said that she signed for the two cheques for Mr Patel and that they were in settlement of Mr Patel's account. She said she did not know anything about the transaction until she 10 received a letter of demand from plaintiff's solicitors and she then instructed a Mr Chanda to write the letter of 1st April, 1971, on her behalf. She denied any knowledge of the letter dated 7th May, 1971, signed by a H. P. Chilombo. She said H. P. Chilombo is her son but she never instructed him to write the letter and that when the letter was written she was out of the 15 country. Under cross - examination defendant denied having an account with the bank in the name of "Bane Twampane Stores". She said the cheques she drew were on her current account with the Bank. She admitted being one of the directors of Catering Enterprises Ltd : 20 and that the company's letter sheets were used in writing the letters of the 1st April, 1971, and 7th May, 1971, but explained that both Mr Chanda and Mr H. P. Chilombo had access to them. Learned Counsel for the plaintiff has contended that there was no denial in the Statement of Defence of the plaintiff's allegation in the 25 Statement of Claim that defendant is the ■ proprietor of the Bane Twampane Stores and therefore that being an implied admission by the defendant, the evidence by her that she was never at any time the proprietor of that business is inadmissible. It is the law that the effect of the defendant admission of the fact pleaded in the Statement of Claim is that 30 there is no issue between the parties on that ■ point of the case which is concerned with those matters of fact and therefore, no evidence is admissible in reference to those facts. (Pioneer Plastic Containers Ltd v Commissioners of ■ ■ ■ ■ ■ ■ 1973 ZR p60 Customs and Excise [1].) In this case as in other decided cases on the issue, objection was raised to the admission of evidence to 35 rebut an admission of fact either express or implied, on the pleadings. In the present case Counsel did not object to the evidence by defendant that she was never and is not the proprietor of the business. It is trite law that on evidence admitted the Court is left to consider the probative value and effect of that evidence. It is therefore my view that the legal position 40 is that the fact not having been pleaded, Counsel for the plaintiff should have taken every care to exclude evidence by the defendant that she was never a proprietor of the business but as Counsel did not object and thereby admitted that evidence, the Court is bound to consider the case put forward by that evidence. 45 I BRUCE - LYLE J The evidence of defendant that she was never and is not the proprietor of Bane Twampane Stores stands unchallenged. Throughout the cross - examination of plaintiff it was directly and indirectly suggested to him that defendant was not the proprietor of the business and Counsel in view of that state of the pleadings on that issue, could have endeavoured to adduce evidence in support of the contention that defendant was the proprietor. I have no hesitation whatsoever in finding that plaintiff has failed to prove that at the time when the goods were delivered to Mr Patel on behalf of Bane Twampane Stores defendant was the proprietor of the 10 Stores. It is further contended by plaintiff's Counsel that cheques for part - payment of the amount owed by Bane Twampane Stores were issued by defendant and that therefore amounted to an admission by conduct that she owed the amount. Defendant has explained in her evidence how she 15 came to issue the cheques. It is her evidence that there were negotiations between her and Mr Patel for the purchase of the Bane Twampane Stores and therefore issued the cheques in payment of the debt owed by Mr Patel to plaintiff and that the cheques had reference to the transaction but the purchase of the business was never completed when Mr Patel left the 20 country. She said she signed blank cheques for Mr Patel which were filled in by him. She further said that there was no account in the bank in the name of "Bane Twampane Stores" operated by her and that the writing on the cheque (Exhibit E) was written by Mr Patel. She said she operated a current account in her none with Barclays Bank. Plaintiff did not adduce 25 any evidence to the contrary that defendant ■ operated an account with the bank on behalf of Bane Twampane Stores. I find that the cheques issued by defendant in part - settlement of the account relating to the goods supplied by plaintiff to Mr Patel for Bane Twampane Stores, could not be anything more than a financial assistance 30 to Mr Patel in relation to the transaction then being conducted for the purchase by defendant of Bane Twampane Stores. I have also no doubt in I my mind that Mr Patel wrote on the cheque (Exhibit E) "Bane Twampane Stores A/C" to remind him that the cheque had relation to the transaction between him and defendant. 35 There is no doubt that the letter dated 7th May, 1971, addressed to plaintiff's Solicitors (Exhibit D) was written on a headed form belonging to defendant's business and also that it contained an admission of the amount outstanding to the plaintiff and an offer to pay same by monthly instalments, but the letter was not written by or on behalf of defendant. 40 Defendant has said in evidence that although it was written by her son, it was written on her instructions as she was out of the country when it was written. This evidence has not been shaken neither has it been rebutted. If this letter had been signed by "J. K. Chanda" who signed the earlier letter of 1st April, 1971 (Exhibit B), the Court would have been in a 45 position to probably infer that the subsequent letter could have been written on the instructions of defendant and on her behalf. As the evidence on the issue of the letter of admission (Exhibit D) stands I am unable to find that it is an admission by the defendant of the claim. ■ ■ ■ ■ ■ BRUCE - LYLE J 1973 ZR p61 In result I would hold that the claim has not been proved. The claim is therefore dismissed and judgment is hereby entered for the defendant with costs. Order accordingly 1973 ZR p61