Amos Siwila and Anor v Chisa Estates Ltd (Appeal 132 of 2000) [2001] ZMSC 136 (28 March 2001)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA AND LUSAKA Appeal No. 132 of 2000 (CIVIL JURISDICTION) BETWEE N: AMOS SI WI LA 1s! Appellant ZAMBIA NATIONAL COMMERCIAL BANK LIMITED 2nd Appellant AND CHISA ESTATES LIMITED Respondent CORAM: Ngulube, C. J., Chibesakunda and Mambilima JJs On 6th December 2000 and on 28,h March 2001 For the appellants - M. Lisimba. of ZANACO For the respondent - J. P. Sangwa, of Simeza. Sangwa & Co. Ngulube CJ., delivered the Judgment of the Court. For convenience, we will refer to the respondent as the plaintiff, the second appellant as the bank or the first defendant and the first appellant as learned counsel or the first defendant. The brief history of the case is that the bank obtained a judgment against the plaintiff for a sum of K3,210.840.76 plus interest and this was in cause number 1994/HP/4323. The bank obtained its judgment on 21st March 1995. The writ of fieri facias was issued on 25ih February 1997 and it was endorsed with the full judgment debt plus interest at 6% and in this regard, the fi.fa. did not reflect credit for a sum of K2.265.880 which the plaintiff had paid in 1995 through the bank’s Kasama branch. As the bank had acknowledged in its letter of 5th May 1995. the judgment debt had been reduced to KI.732.448.52 plus interest at 6%. According to the plaintiffs witness and Chairman, he had made the part payment on advice from the bank’s then legal counsel Mr. Mabutwe and apparently considered the matter closed so that the balance plus interest was not paid. On 4th July 1997, the bailiffs seized in execution some animals and equipment which action galvanized the Chairman into action. He immediately travelled to Lusaka where he saw the first defendant. The plaintiff alleged that the Chairman and learned Counsel entered into an oral agreement on 8th July 1997 whereby the bank would call off the bailiffs and suspend the execution under the fi.fa.; the bank would advise the Chairman how much required to be paid; and the Chairman would settle the bailiff’s fees, in addition to making a down payment as demanded by learned Counsel. The first defendant denied ever entering into any such contract or agreement with the plaintiff and denied having undertaken to suspend the execution. The facts thereafter were that the execution was completed on 13,h August 1997 and KI,801855 was raised and subsequently remitted to the bank. The plaintiff considered that the first and second defendants had acted in breach of contract in failing to stop the bailiffs. Having heard the evidence from both sides, the learned trial judge concluded that there was no such contract as was alleged by the plaintiff. The court accepted the evidence of the defendants that there was no promise to suspend the execution and that this finding was consistent with the Chairman’s failure for some three months to contact the bailiffs at Mbala to pay their costs when he would have been expected to have seen them promptly shortly after seeing learned Counsel. The claim as pleaded having been rejected, judgment was still entered for the plaintiff, instead of for the defendant. This came about because the court considered that there was a wrongful execution when the bank endorsed the fi.fa. with the original judgment debt instead of a smaller sum after the payment of 1995. The court considered that execution based on the wrong figure rendered the whole execution wrongful so that the bank must pay damages to be assessed by the deputy registrar equal to the value of the equipment and animals taken in execution. A major ground of appeal, very properly conceded by Mr. Sangwa if we understood him correctly, was that it was wrong and not permissible to transform or extend an action alleging breach of contract to include a claim for wrongful execution. Although a claim can be decided on a variation, development or modification of the case pleaded and put forward, a radical departure from the pleaded case should not be entertained. We have said this in a number of cases in the past, such as MUMBA -v- ZAMBIA PUBLISHING CO. (1982) ZR 53; BURTON CONSTRUCTION LTD -v- ZAMINCO LTD (1983) ZR 20; CHIKUTA -v- CHIPATA RURAL COUNCIL (1983) ZR 26; and ZAMBIA SAFARIS LTD -v- MBAO (1985) ZR 1. That ground of appeal had to succeed and we are not surprised that the plaintiff cross appealed to try and get a judgment on their original cause of action. In any event, even had there been pleaded a claim for wrongful execution - as opposed to one for excessive execution - the claim would have floundered since at the time the bailiffs seized and sold the goods, the plaintiff still owed some money which justified enforcement by fi.fa. The letters relied upon which were written in October 1997 and which acknowledged the various payments were letters coming into existence after the event, months after the execution had been completed. We have considered the views of the learned authors of Halsbury’s Law of England, 4th edition; Vol. 17 at paragraph 457 when they discuss wrongful and irregular execution. They observe - “Where the judgment has been partly satisfied, however, and the debtor complains of an excessive execution for the balance, he must, in order to recover damages, prove either that the execution was obviously excessive or that there was malice and absence of reasonable and probable cause ”, Authorities are cited for these observations and we have no reason to disagree with the learned authors. One important point to note is that a claim for wrongful execution or for excessive execution would need to be specifically or generally advanced; but it can not be a natural extension to a claim for breach of a contract found never to have been entered into even. The grounds advanced by Mr. Lisimba had a lot of merit and we allow them and set aside the judgment for alleged wrongful execution. There was a cross appeal. Mr. Sangwa pointed out that the plaintiff wished to rely on the contract or agreement which was pleaded and which was said to have been partly oral, partly in writing and partly by conduct. He drew attention to the evidence and urged that the court below be varied so as to find that there was a contract which was broken and that damages be payable for the resulting wrongful execution in breach of agreement. The learned trial judge had before her the evidence of the chairman of the plaintiff company and that of learned Counsel who represented the bank in the alleged contract. The Chairman was advised by learned Counsel to pay up, including paying the bailiffs fees or to engage a lawyer who could apply for a stay of execution of the fi.fa. The Chairman opted to pay up and requested to learn what was the total outstanding indebtedness. The first defendant referred the Chairman to another official. It was not until several months later - after the execution had been levied - that there were payments and letters detailing the state of the repayments. The judge below was in a far better position than we are to resolve matters of credibility and she had both the Chairman and learned Counsel in front of her. She saw and heard them and she decided that learned Counsel was to be believed. She did not misdirect herself in anyway and the grounds of cross appeal can not possibly be entertained. We dismiss the cross appeal. In sum. the appeal is allowed and the cross appeal disallowed. There were arguments about costs and whether the first defendant should or should not also have been awarded costs. In the view that we take, the first defendant and the second defendant were dealt with jointly, with learned Counsel sued in an official rather than in a personal capacity. The need to name him personally was very doubtful in the circumstances but the position is still as we have observed. In the circumstances, there will be only one lot of costs for the defendants both here and below, to be taxed if not agreed. M. M. S. W. Ngulube CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE I. C. Mambilima ACTING SUPREME COURT JUDGE