Worker's Compensation Control Board v Chaplin Sawono (Appeal No. 11/2017; CAZ/8/0105/16) [2017] ZMCA 490 (14 September 2017)

. - :. J(·t ~-=-:-:-. :;,!~--:- :(~ • • ~ -'"}frtc co·r f - - -~'-A ~ . . ~ J IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) (ft2l!b l OI 0 -5 / 11, Appeal No. 1 1/2017 BETWEEN: AND APPELLANT CHAPLIN SAWONO RESPONDENT CORAM For the Appellant : For the Respondent: Mr. E. C. Banda S. C . of Messrs ECB Legal Practition ers. Mr. K. Mukonka of Messrs. Caristo Mukonka Legal Practitioner s . - - - - - - -- - - - - -- - - -- - - - - - - - · - - - - · - · - - - - - - · · - - · - Chishimba, JA, delivered Judgment of the Court Cases r eferred to: 1. Christopher Lubasi Mundia V Sen tor Motors Limited ( 1982) ZR 66 (H. C). 2 . Zambia Consolidated Copper Mines Investments Holding V Woodgate Holdings Limited (2011) Volume 3 110 3 . K. B Davies and Company (Zambia) Limited V Musunu No . 181 of 4. Kearney and Company Vs Agip Zambia Limited 1985 ZR 7 (S. C) 5. Augustine Kapembwa V Danny Maimbolwa and Attorney-General (1981) ZR 127 (S. C) 6 . Anderson Kambela Mazola and Others Vs Levy Patrick Mwanawwasa and Others (2005) ZR 138 (S. C). 7 . Kleinwort Benson Limited Vs Lincoln Council (1998) 4 ALL ER Other works referred to 1. Black's Law Dictiona ry 7 t h Edition, 1999 page 1536 -J2- This appeal arises from the Judgment of the High Court awarding the Respondent's claims for refund of money deducted from his salary for the liquidation of a car loan, payment of repatriation allowance , payment of sum retained, underpayment of tax on gratuity and damages for loss of use of the motor vehicle. The facts before the Learned Trial Court not in dispute are that; the Respondent was employed by the Appellant as Head of Audit and Risk Services on 20 th August 2009 for a period of three years subject to renewal. There was in place a self-liquidating Motor Vehicle Policy offered by the Appellant to its employees aimed at > · -:.~"¢': -:-,..-.. : _providi-hg-:!froto.r yehi@llO-S-:J~ . Djr½ctor~~-1,):rpsim.ilctr Ii~ ·$rith __ the . :;~"¢': ·-:'5- . J-_· ~ -· -~ -· ~ -· ~ -- personal to holder Vehicle Scheme. The Respondent being eligible to purchase a Motor Vehicle under the Policy obtained a self liquidating car loan from the Appellant. The modus operanda of the policy was that the entitlement amount was treated as an advance to be liquidated in equal monthly instalments over a period of four years. At the end of the contract, an employee would be entitled to purchase the vehicle at book value. In line with his entitlement of US$ 80,000 the Respondent purchased a Range Rover Motor Vehicle. The vehicle was purchased duty free and registered in the Appellant's name. -13- On the 16th of March 20 12 , the Respondent was advised to stay away from work until the expiry of his contract on 19th August 2012 . The Appellant proceeded to calculate the Respondent's benefits and deducted the balance of the book value of the motor vehicle. When the Respondent attempted to effect change of ownership of the vehicle into his name , he encountered difficulties with Zambia Revenue Authority (ZRA) who demanded that the applicable tax duties be paid in respect of the vehicle . The Appellant in its defence averred tha t though it acquired the ~ - ~ -- ~ -- ~ -- - vehfcle~uJ)1 f~ee, the·f ~ii"flty-1.iabi°Iity~th~eon was vay~l'e-cy the Respondent before change of ownership could be effected. The Appellant's defence was essentially that the Respondent bore the responsibility to pay the applicable tax duty because the price of the vehicle plus value added tax (VAT) exceeded the Respondent's entitlement of US$ 80,000. The Learned Trial Judge h eld that the Respondent was entitled to a refund of the money paid towards the self-liquidating car loan made to the Appellant as he had exercised the option not to purchase the vehicle. It was further held that it was the employer's responsibility to pay the tax duty for the vehicle registered in its name . The Learned Trial Judge further up-held -J4- the claims for r ep a triation allowance, retention a llowance and gratuity underpaym ent in the sum of K15 , 362.86. The App ellant r aised nine grounds of appeal namely th at; (i) (ii) The Learned Trial Judge erred in law and fact when he held that the claim for repatriation succeeds as there was no evidence to support this claim as the contract in question was not before the Court and further that the same was not specifically pleaded in the Writ of Summons and Statement of Claim. That the Learned Trial Judge erred in law and fact when he held that the retention allowance was illegal and amounts to effecting a lien against a portion of an employee's terminal benefits whilst at the same time holding that the same be paid subject to deduction of permissible expenses incurred by the Defendant. (iii) Th~ . the Learned !,(ial Judge erre9A_ -in law and f~_t when he ~ -• _ .held that the ~ _Defe ndant mad_e a mistake ~-in its initial -· ·t:1Yl1i'ptltat--ion of t nlf ·i':faintifFs terfflf;;;,_-z 'benefits 'r°'e§uu1rtg- in- an - ~~ ~ . over payment of tax to ZRA as there was no evidence to support this finding. (iv) (v) (vi) The Learned Trial Judge erred in law and fact when he held that the Plaintiff was only a potential beneficiary of any tax exemption and the problem relating to the taxes was a problem between the Defendant and the ZRA. That the Learned Trial Judge erred in law and fact when he held that the tax on the vehicle should be paid by the Defendant and the fact that it was not paid meant that the Plaintiff ended up with a vehicle valued way above his entitlement. That the Learned Trial Judge erred in law and fact when he held that this is one of the instances where the Plaintiff could opt to exercise his option not to buy the vehicle at the e nd of the contract when he had earlier found that it was clearly not the intention of the parties that an option to buy or not to buy the vehicles would be exercised by the e mployees at the end of their contracts. (vii) That the Learned Trial Judge erred in law and fact when he held it would amount to unjust e nrichment to allow the Defendant to keep both the car and the monies deducted towards paying for it when there was no evidence on record that -JS- the Defendant was in possession of the car or t hat the Plaintiff had surrendered the car. (viii) That the Learned Trial Judge erred in law and fact when he held that the Defendant should refund the monies that the Plaintiff paid towards the s e ttlement of his o w n Car Loan as there was no evidence on record to support such a finding and was not in conformity with the car loan/ motor vehicle policy as contained in the PlaintifF s Conditions of S ervice or Contract of Employme nt. (ix) That the Learned Trial Judge erred in law and fact when he held that the Defendant should have provided a relief vehicle to the Plaintiff for him to use up to the end of the contract as there was no evidence on record to support such finding and the same was not provided for in the contract of e mployment and the Plaintiff still had and has possession of the vehicle todate. The Appellant relied upon the Heads of arguments filed into Court and ~ -· at the -~-· hearing of the ~ -- appeal, ~ -- augmented the ~ - · In ground one, the Appellant's contention is twofold, that the claim for repatriation was not specifically p leaded by the Respondent and that ther e was no evidence adduced to support the claim as the contract in question was not before Court. In respect to the issue of pleadings, it was submitted tha t it is trite that a party who wishes to rely upon a claim must plead the issue. As auth ority, the Appellant cited the case of Christopher Luba si Mundia Vs Sent or Mot ors Limit ed fl J. The Appellant argued that the issue of repatriation was not pleaded by the Respondent, therefore the Learned Trial Judge misdirected himself when h e considered the claim. In any event that, the Respondent h a d -J6- failed to produce the contract of employment pursuant to which he was claiming repatriation. The alleged repatriation arose from his previous contract not before court. In ground two, Counsel for the Appellant submitted that the claim for retention allowance was not equally pleaded nor was evidence led in that respect as to the amount retained or the contract of employment providing for the sum retained. The Appellant argued that it retained the retention allowance to cover subsequent contingencies or bills that might arise until all ties pith the Resp9Pdent were se~red. No lien_},Yas created Ol)l_the gist of the argument is that though the Learned Trial Judge understood the working of retention allowance, h e misdirected himself at law b y awarding the retention allowance. In support of ground three, it is contended that the Judge erred in law and fact by holding that t h e Appellant had made a mistake in its initial computation of the b en efits r esulting in an overpayment to Zambia Revenue Authority (hereinafter referred to as ZRA) . It is argued that there was no evidence to support this finding. The Appellant in the second instance a rgues that the issu e of over paym ent to ZRA was not pleaded. Further tha t -J7- the Respondent had failed to prove the claim a nd was not entitled to the award. Our a ttention was drawn to the cases of Zambia Consolidated Copper Mines Investments Holdings Vs Woodgate Holdings Limited f2J and K. B Davies and Company (Zambia) Limited Vs Musunu r31 on the effect of a fa iled defence and lacuna in t he evidence. Namely that it must b e r esolved in favour of a party not responsible for the lacuna. Grounds 4 to 9 r elating to the issue of the liability of the tax duty applicable on the motor vehicle were argued as one. Counsel submitted that the issue revolves around the motor vehicle and _,>._ . _,>._ . ·_~;¢': ~ h e· tr~airnoot:;t;>f Jhl= -tax-,){: :;-,q'he_, Appe11Qn!'.'...;: a~gu_ed- ·t-rmt:;-the_ . _ _,>._ - j/,._ . .>-. - -~~-- Respondent obtained a loan of US$ 80 ,000 to purchase the vehicle. The Respondent travelled to Lusaka to seek rebate of tax on the vehicle as the tax component would h ave exceeded his entitlement. The Appellant submitted that the bone of contention arises from the Learned Trial Judge 's finding on the issue of tax, that the Respondent did not negotiate the tax exemption in his personal capacity and was only a potential beneficiary of any tax exemption. On the contrary it was the Respondent who championed the exemption a s h e opted to purchase a vehicle close to his entitlem ent and he could only do so by seeking a tax exemption under the Appellant's line Ministry. The Appella nt -J8- argued that s ince the Respondent opted to purchase a motor vehicle which with the tax component exceeded his entitlement, th e burden to pay taxes imposed by ZRA falls upon him. In any event even if the Appellant paid the tax, it would b e recoverable from the Respondent. The gist of the Appellant's argument is that the money advanced to the Responde nt for purchase of the vehicle was a loan r epayable b y way of d eductions. The vehicle b elonged to the Respond ent. The Learned Trial Judge err ed by h olding that the .,a_R espond ent wd an option...,._to exer cise vi;i_· a vie whet~ r to In fact the Respondent retained possession of the car until it was confiscated by the task force. It was argued that the Learned Trial Judge misdirected h imself by h olding that the monies paid for purch ase of the car be refunded to the Respondent. Doing so would amount to unjust enrichment of th e Respond ent wh o had e njoyed the u se and possess10n of t h e ve hicle at no consideration. The gist of t h e Appellant's contention is that the Appellant n ever retained possession of the vehicle. The vehicle was retained by the Respondent. It would be unjust enrichment on the part of the Respondent because he h ad obtained a loan, -J9- utilized it for his own u se and after d epreciation, the vehicle goes back to the Appellant whilst the Respondent get s back the money h e paid. In addition to compensa ting him for loss of use of the vehicle, the Appella nt submitted that though the Respondent contended that the vehicle was register ed in its name, a white book/ red book is not a certificate of title. It speaks to what to consider when investigating title. As authority the case of Kearney and Company Vs Agip Zambia Limited f4J was cited. As regards the holding by the Lower Court granting damages for loss 9{-use of motor }Aehicle, it was S>-tbmitted that g,1_elaim for loss _j,A. · ownership of a property or who can claim under some right incidental to ownership . As authority the case of Augustine Kapembwa Vs Danny Maimbolwa and Attorney-General f5J w as cited , in which the Suprem e Court stated tha t a man d eprived of use of his property by the wron gful act of another has recou rse to a claim for damages. In response to ground one Counsel for the Respondent submitted that the claim of repatriation was plead ed and evidence was led. The sou gh t sum of K7 0 . 1 million included th e claim for repatriation allowance. We were refe rred to p ages 408,409 and 84 -JlO- and page 427 of the Record of Appeal in respect of evidence led in relation to the repatriation claim. In any event, the evidence therein was not objected to during trial. In response to ground two, the Respondent submitted that Retention was not allowance contrary to the Appellant's arguments. It was money withheld at the time of payment of terminal benefits in anticipation of deductions not taken into account. The Learned Trial Judge was on firm ground in granting the release of the retention amount as the Appellant was not _w.·stified in holdAng the amoun.>-.appearing at ..l}age 80 of the~-· The Respondent in response to grounds 4 to 10 submitted that the Learned Trial Judge was on firm ground when he held that the Respondent was a potential beneficiary of any tax exemption and that the tax due on the vehicle was payable by the Appellant. The Respondent made references to clause 20.1 of the Conditions of Service at page 118 of the Record of appeal and to the letter dated 5 th April 2012 addressed to the task force regarding the ownership of the vehicle as owned by the Appellant. In addition, reference was made to the letter from ZRA at page 334 of the record requesting the Appellant to pay the tax for the vehicle. It -Jll- was argued that on the documentary evidence adduced, the Respondent, could not b ear t h e burden of tax as the vehicle was n ever registered in his name. Therefore, grounds four and five lack m erit. In response to ground 6 , it was contended t h at there was an option to purch a se by use of the words "the employee may purchase it". This option according to the Respondent was reaffirmed by the Appellant to ZRA in the letter. Further, that a Mr. Sichinga upon the termination of his contract was not .. _. allo~ed to purchas~_the vehicle . ~-. In response to grounds 7 and 8, the Respondent contended that it would amount to unjust enrichment as held by the lower court to allow the Appellant k eep both the purch a s e price as well a s the vehicle. That it was not in dispute tha t the car was registered in the Appellant's name and monies were deducted towards p ayment of the vehicle. Counsel's conten tion in r espect to ground 9 is that, since t h e contract of employmen t was to end on 19th of August 20 12 and the Respondent was told to stay away from work on 15th March, 2 01 2, h e was still an employee until the contract came to an end . Therefore, h e was entitled to a ll the ben efits under the Conditions -J12- of Service such as personal to holder vehicle. That the Learned Trial Judge was on firm ground by awarding damages for loss of use . As regards the money used to purchase the motor vehicle, Counsel for the Respondent submitted that it was never a loan per-se to him. The Respondent was not advanced any money to buy a car. The vehicle was purchased by the Appellant. We were referred to pages 170-173 as well as 191 of the Record of Appeal. Further, that the Respondent went in his capacity as an emijoyee to the Mj?istry negotiaWlg the issue CJi_-the duty fre~_ - We have considered the appeal, the Judgment of the lower Court, the Heads of arguments and authorities cited. In ground one the issues raised are as follows; whether the claim for repatriation was pleaded and whether evidence to support the claim was adduced to warrant the award by the Learned High Court Judge . It is trite that the function of pleadings is to give fair notice of the case which has to be met and to define the issues upon which the court will adjudicate in order to determine the matters in dispute between the parties. Unpleaded claims are precluded -J13- from con s ideration unless let in evid ence and not objected to by the opponent. We r efer to the Supreme Court decision in Anderson Kambela Mazoka and Othe rs Vs Levy Patrick Mwanawasa and Othe rsf6J We h ave p eru sed the pleadings particularly the Statement of Claim at pages 42 -43 of the record . Under paragra ph 1 O(E) the Respondent sought the sum of K70. l million b eing underpayments. There was evidence adduced in the lower court appearing at p ages 408-409 by the Respondent that the sum of K70. l million included the amount of K 6, 000 in resp ect of ~ -- ~ -- .,,,._ . ~ -· We are of the view t h a t this a mount was pleaded. The on ly issue is whether evid ence was a dduced to prove the entitlement. The Appellant contended th at no eviden ce was a dduced p articularly of the contract of employment pursuant to which h e was claiming repatriation. We are of the view t h at there was eviden ce adduced upon which th e Learn ed Tria l Judge b a s ed his award of the re patriation claim. Page 130 of the record of appeal 1s t h e contract of emp loyment d ated 20 th August, 2 009 between the parties which provided under clause 25( 1) th at "at the e nd of the contract, -J14- _, the Employee shall be paid K6, 000 ,000.00 n et as repatriation." Therefore, t h e Learned Tria l Judge was on firm ground in awarding the claim in respect of repatriation. We find no m erit in ground one and dismiss it accordingly. In ground two , the issue is whether the claim for payment of the retention s um withheld by the Appellant was pleaded and evidence led in that respect. In our view, the claim in respect of th e sum of ZMW 5 ,000 retained by the Appellant was pleaded by the Respondent. It is ./--· ~-- _,.. - .,.:._-,,;i:' c.."'-:< . . part ~ot_tht-s~~ of l\7Q.-1 fuillion clc!i111-_ed./-cis p n d erpaxrr?-fb.t~., The ~ ·rt~ ··- -< . """' ·- - ·""'•):;'° -·~ ~ - - . .,.,_-,* -~ < _,.. - ·- ·.-."'* .:""-!,: . _,.. evidence at page 410 of the r ecord of appeal by the Respondent that the sum of KS , 000,000.00 was d educted to cover for any subsequent liabilities was not disputed. The Appellant admitted having r etained the sum to cover any contingency arising. This is even acknowledged in t h e Heads of arguments by the Appellant. Therefore, the learned t rial Judge was on firm ground wh en he granted the claim for p aym ent of retention sum withheld by th e Appellant. In ground three, the issue for d etermination is whether the Lear n e d Tria l Judge erred in law a nd fact when h e held that th e Appella nt h a d m ade a mistake in its initial computation of th e . Jf -JlS- Respondent's terminal benefits resulting 1n an overpayment of tax to ZRA and awarding the claim for underpayment of tax on gratuity. The Appellant argued that this claim was not pleaded nor was evidence led in that r egard. The evidence by the Appellant in respect of overpayment of tax on gratuity to ZRA, was to the effect that, tax already paid was not deducted h en ce his claim. The Appellant itself at 3 07 of the record of appea l a dmits that the Respondent is entitled to claim the sum of KlS , 362 .86 albeit from ZRA as a r efund. This claim was pleaJ ed and evideJicce a dduced. ~ _We refer to we m emo - app~ilt~···;\:- page ~is~ort~ e- Rec~;J,¢:f~~ fhe ~p~~11~ :.to the Respondent advising of the recalculation of gr atuity for the contract p eriod which resulted in overpayment of Pay As You Earn (PAYE) in the sum of Kl 5, 362.86 . We a re therefore of the view that the Learn ed Trial Court was on firm ground in awarding this claim. The error h aving been occasioned by the Appellant, liability lay with it to r efund the sum a nd then in turn seek a refund from Z. R. A. We ar e of the view that ground three is d evoid of merit Grounds four to ten wer e argued as one as they r elate to the issue of the motor vehicle. The Learn ed Trial Judge ordered the -J16- refund of the sum of ZMW 383 ,600 to the Respondent being money dedu cted under the Self Liquidation Loan. We will deal with the grounds as one b ecau se the issues raised are similar and all relate to the motor vehicle. It is not in issue that the vehicle was brought into the country duty free and that the Red book shows the Appellant as absolute owner. Clause 20.1 (a) under the Self Liquidating Motor Veh icle Policy stipulated as follows; (a) "The policy is aimed at providing a motor vehicle to the C~:>I~issioner and D.!{~ctors on simil~ .lines with the !l~rsonal-to- J!.9Jp.~otor Vebi~£ -~ ~~ eme. - --- ..,,.. ..,,.. - · ::.;_-.;.~ .~ . ..,,.. Under the scheme, instead of providing personal-to-holder vehicle and what is popularly known as retiring with the vehicle, the Board will prescribe maximum entitlement to purchase a vehicle of his choice, which amount will be treated as an advance to be liquidated in equal monthly instalments over a period of four years. At the expiry of contract, the vehicle will have a book value at which the employee may purchase it. In the event of staff separation within the contract period, the employee will be entitled to purchase the vehicle at book value" . On the 16th March 2012 the Respondent was told to stay away from work until the expiry of his contract on 19th August 2012 . The book value balance of the vehicle was deducted from his dues. The Respondent contend ed th at he had exercised the option not to purchase the vehicle and that the amount advanced · .-:;.-=a ,:){ ..,="'!.~ - .~;'P .="'!~ .;J,._. - -J17- under the Motor Vehicle Policy was not a loan. Further that the tax liability due to ZRA was payable by the Appellant as owner of the vehicle. The first issue for determination is whether the advanced sum of US$ 79,084 was a loan to the Respondent. We have perused clause 20.1 of Self Liquidating Motor Vehicle Policy which refers to the entitlement being treated as an advance. Further at page 174 of the record of appeal is an application form by the Respondent for the sum of US$ 79,084. __ -.... =- .... ~ '-':"'a.,<( . ...,.. -1he form __ i:£?-?i~ie~ the reE_ovlry amouI)t ___ to-"\;e debite~d __ _!=>yj,lthe . - . :"'a..-;: • ..,,.. - ..,,.. accounts department monthly. In addition, the Respondent's pay - . - - .• '."'a!,c . .,;-- . - - . ~ ..,,.. - ~ .,;-- . .... -,- ~ ._..._.,.~ . .... .,. ~ is'.' • - Advice slip appearing at page 16 7 of the record of appeal shows a deduction of Kl0,432,406.13 (unrebased) in respect of the self liquidating loan. We are of the view that the amount availed to the Respondent for purchase of a motor vehicle was a loan. A loan is defined as the act of giving money or property or other material goods to another party in exchange for future repayment of the principal amount. The Appellant had advanced the sum to the Respondent for the stated purpose, who in turn was effecting monthly repayments . Upon the purchase of the motor vehicle , the Appellant paid an -J18- allowance to the Respondent itemized as a self-paying loan in the sum of ZMW16 , 049.85 from which monthly recoveries were made. We refer to pages 167 -169 of the record namely the Pay Advice slips fo r the p eriod December 2011 to February 2012 showing the a bove amount given to the Respondent as an allowance. The pay advice s lips furth er show the monthly d eductions of the sum of ZMW 10,432.40 in respect the self p aying loan. The Respondent in his eviden ce app earing at page 411 of the Record, testified that the scheme operated like any other personal to holder sch eme, «the only exception was that to ..,._. ..,._ . ~ -. .;.>,_. .;.>,_ . . :_:.,l{ -~N.abje you ·°1:J"'l:y;Jhe vefiicle: :~ ~.._dµg time, -::tkre-J;0mpa[Ly° gr:i-1Je-JJ9il _ an allowance which enabled you to pay for the vehicle" We are of the view tha t the Respondent would not have been entitled to the allowance of t h e sum of ZMW 16, 049. 85 if a vehicle h a d not been purchased for him. The Respondent therefore, only b ecome entitled to that amount by virtue of the vehicle purchased for him. He was availed a self- liquidating loan. The r ecoveries wer e not m a d e from his monthly earnings . Ra ther they were effected from an allowance t h at b ecame payable because he had purchased a motor vehicle under the scheme. Clearly this was a self liquidating loan advanced to the Respondent. -J19- The Responde nt argued that the vehicle purchased duty free was owned by the Appellant and as su ch he was not liable for payment of the imposed tax. We are of the view that the vehicle was for the Respondent d espite the title showing that it belonged to the Appellant. The Appellant only remained a bsolute owner of the vehicle until the advance was fully paid off as provided for in the scheme . We r efer to page 175 of the application form. It is not in dispute tha t the Appellant deducted the book value outstanding at the expiry of the contract from the Respondent's b en efits. There is further evidence that the Respondent was .,,._ . .,,._ . .,,._ . .,,._ . J>._. Respondent only purportedly d eclined to purchase the vehicle upon encountering the duty imposed by ZRA duty on the vehicle which subsequently led to the seizure. The Learned Trial Judge in our view misdirected himself in law and fact by holding that the tax should be paid b y the Appellant. The Respondent was lia ble to pay the tax due on his vehicle. Had the Respondent purchased a vehicle inclusive of taxes within the limit of his entitlement, the issue of tax would not have arisen. There was in fact evidence adduced on record that other Directors and employees who had purchased vehicles under the Scheme, paid r esidua l taxes demanded b y ZRA before change of -J20- ownership was effected. In addition, that they purchased vehicles within their entitlem ent inclusive of duty . We are further of the view that the Learned Trial Judge erred by holding that th e Respondent could opt to exercise his option to purch ase or not purchase the vehicle at the end of the contract. The vehicle was purchased for the Respondent in his personal capacity and not for the Appellant. The Responden t had already ex ercised the option to purchase hence the deduction of the book balance value of the motor vehicle . ->-As__. to tl?-e y. _ho1'di11:g that !!ie->vehicle "Ya§_ it-· possessjo~ ot · th e ..,,. - - - .-:;_-;; _ ... '.!; -·""'=< . .... .,- Appellant, the Learned Trial Judge erred in fact. Th e undisputed ·=-"'V:. ~""-:.,c . -.,;."'.:){ ·""'=< . .,..._.,~ - ~..; . ·-.-.~,'.){ .• :"'-:,c . - - - . ..,,. - .,- .,- eviden ce was that the vehicle was in the Respondent's possession who testified that the car was taken away from him by the Police after h e h a d b een told to stop going for work. In a ddition , DW 1 had testified t hat the vehicle had remained in the Respondent's possession. The vehicle was confiscated by the task force . We refer to page 94 of the record of a ppeal namely a Handing/ Seizure over Certificate certifying that on 29 th of March 2 01 2, th e Land Rover was seized from the Res pondent, Chaplin Sawono. -J 21- Having d etermined that the amount advanced for the purchase of the motor vehicle was a loan, we are of the view that it was a misdirection on the part of the Learned Trial Judge to h ave awarded the refund of the s u m of ZMW 383,600=00 that the Respondent had paid towards the settlement of th e Car Loan. The award would amount to unjust enrichment in that the Respondent has had use of the motor vehicle, and at the same time would b e refunded the loan obtained at t h e expense of the Appellant at no consideration by the Respondent. Unjust enrichment is d efined b y Black's Law Dictionary 7 th Edition, 1999 ,;A . -"'"- . -"'"- . -"'"- . -"'"-. "The retention of a benefit conferred by another, without offering compensation, in circumstances whe re compensation is reasonably e xpected." The House of Lords in Kleinwort Be nson Limited Vs Lincoln City Council 171 explain ed the principle of unjust enrichment in the fallowing terms; "The essence of this principle is that it is unjust for a person to retain a benefit which he has received at the expense of another, without any legal ground to justify its retention, which that other person did not intend him to receive. This has been the basis for the law of unjust enrichment." -J22- We therefore set aside the award and hold that the Respondent is not entitled to the refund of the sum of K383, 600=00. Ground 9 assails the Learned Trial Court's holding that the Appellant should have provided a relief vehicle to the Plaintiff for use up to the end of Contract and awarding damages for loss of use of the vehicle. It is not in dispute that the Respondent was told to stay away from work on the 15th of March 2012 before the expiry of his contract of employment on the 19th of August 2012. > . ...>-. · W:_~-q. I~qf the view'lltoot :having fQ\Vlcl-: .. t}:lat the Re&µ~~c;lent was~Q;: ~~ . ~ - .,>_. -->-. -->-. - - - - - - - - - possession of the vehicle up to the time when it was impounded he is not entitled to an award for damages for loss of use. It goes without stating the obvious that the Respondent was not deprived of the use of the vehicle by the Appellant. The vehicle was impounded by the task force on account of non-payment of duty imposed by ZRA. We therefore set aside the award of damages for loss of use of the motor vehicle. In respect of grounds one, two and three, we find no merit and uphold the decision of the Learned Trial Judge . -->-. - ..c.""-!,c • -J23- We accordingly find merit in grounds 4, 5, 6, 7 and 9 and overturn the Learned Trial Judge's d ecision and set aside the award of the refund of the sum of ZMW 383,600.00. We award costs to the Appellant, to be taxed in d efault of agreement. A_. F. M. Chishimba COURT OF APPEAL JUDGE ••••• · , · ··1 D. Y f:, COURT OF ••••••••••••••••• ga, SC AL JUDGE \ '