BJ Poultry Farms Limited v Nutri Feeds Zambia Limited (Appeal 166 of 2015) [2016] ZMSC 43 (9 March 2016)

l•• J1 (57) SCZ JUDGMENT NO.3 OF 2016 APPEAL NO. 166/2015 SCZ/8/71//2015 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN BJ POULTRY FARMS LIMITED Appellant AND NUTRI FEEDS ZAMBIA LIMITED Respondent Coram: Chibomba. Malila and Kaoma, JJS. On 151 March, 2016 and on 91h March, 2016. For the Appellant: For the Respondent: Mr. R. Mainza, Messrs Mainza & Co. Mr. E. K. Mwitwa, Messrs Mwenye & Mwitwa Advocates JUDGMENT Chibomba, JS, delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. Wilson Masauso Zulu vs. Avondale Housing Project limited (1982) Z. R. 172. The Attorney General vs. Marcus Kampumba Achiume (1983) Z. R. 1. Banda vs. Chief Immigration Officer and The Attorney General (1993 -1994) Z. R. 80. Nkhata and Four Others vs. The Attorney General of Zambia (1966) Z. R. 147. Zambia Railways vs. Pauline S. Mundia and Another (2008) Z. R. 287 Vol. 1. Khalid Mohamed vs. Attorney General (1982)Z. R. 49. Anderson Kambela Mazoka and 2 Others vs. Levy Patrick Mwanawasa and 2 Others (2005) Z. R. 138. Nutrimix Feeds Corporation Petitioner vs. Court of Appeals and Spouses Efen & Maura Evangelista (Philippines) G. R. No. 152219October 25, 2004. Other authorities referred to: 1. The Sale of Goods Act 1893. 2. Phipson and Elliot, A Manual of the Law of Evidence, 11 3. The online Free Dictionary at legal-dictionary.the free dictionary. th Edition, 2001. " J2 (58) The Appellant appeals against the Judgment of the High Court at Lusaka, dated 27th February, 2015 in which the learned Judge dismissed the Appellant's claim against the Respondent for damages for breach of contract. For convenience, we shall refer to the Appellant in this Court as the Plaintiff and the Respondent as the Defendant which they were in the Court below. The history of this case is that between 22nd October, 2011 and 8th November, 2011 the Plaintiff purchased 600 x 50 kg bags of layers mash from the Defendant at the total price of K64, 200,000.00 which was delivered to the Plaintiff by the Defendant. The Plaintiff alleged that after feeding its layers with the layers mash purchased from the Defendant, the chickens got sick and 699 birds died. The Plaintiff also claimed that there was a reduction in egg production. This prompted the Plaintiff to send samples of the layers mash to the University of Zambia for analysis and that the results showed that the feed was contaminated with Salmonella and E. Coli bacteria and that it was low in crude protein, calcium and phosphorous. Therefore, the Plaintiff claimed that there was breach of the implied term or condition of the contract by the Defendant as the layers mash in question was not reasonably fit for the intended purpose. So this • prompted the Plaintiff, by Writ of Summons, to seek the following reliefs (59) from the Defendant: - U(i) The sum of K168, 536,000.00being damages for breach of contract; (ii) (iii) Costs." Interest; and The Defendant disputed the Plaintiff's claim, claiming that the layers mash in question was fit for its intended purpose as the Defendant sold layers mash to other customers during the same period but received no complaints from them concerning the stock feed. And that Vetlab Zambia Limited, used to do regular tests at the Defendant's factory but that no Salmonella and E. Coli was found at the factory. At the hearing of the case, the parties adduced oral evidence which the trial Judge considered and analysed. In her Judgment dated 2yth February, 2015 the subject of this Appeal, the learned Judge was of the view that the questions before her where these:- (i) Whether there was an agreement between the Plaintiff and the Defendant where under the Defendant supplied and sold layers mash to the Plaintiff in response to which she found that it was not in dispute that during the period between 22nd October, 2011 and 8th November, 2011 the Plaintiff purchased 600x 50Kg bags of layers mash feed from the Defendant and the product was delivered to the , J4 (ii) Plaintiff and that the Plaintiff fed the layers mash in question to its layers. (iii) Whether it was the Defendant's layers mash which was submitted by (60) the Plaintiff to the University of Zambia for analysis in response to which she found that an inference could be reasonably made that the feed was the Defendant's layers mash as the Plaintiff's undisputed evidence on record was that it purchased the feed from the Defendant and that there was no other feed purchased by the Plaintiff from other manufacturers during the material period. As regards the cardinal issues for determination, the trial Judge observed that the issue was whether the layers mash in question was reasonably fit for the purpose for which it was bought or whether there was a breach of an implied warranty as to the reasonable fitness of the goods purchased. It was also her view that the applicable principles were those under the Sale of Goods Act 1893 (the Act). And that under Section 14 (1) of the said Act, where a seller sells goods in the course of his business, there is an implied term that the goods supplied must be of satisfactory quality and must be reasonably fit for their purpose or for which goods of the kind in question are normally supplied. And that it is the seller's duty to supply goods reasonably fit for such purpose. , J5 (61) She also took the view that in the sale of animal feeds, there is an implied warranty that the feed must be reasonably fit and suitable for the purpose which both parties anticipate and that to successfully prove liability for breach of the implied warranty, three things must be established. She put these as follows:- "(i) (ii) (iii) the injury occurred because the product was defective or That the Plaintiff sustained injury because of the product; That unreasonably unfit; and That the defect existed when the product left the hands of the seller." She was also of the further view that to determine the cardinal issue raised, the following questions had to be determined:- 1) 2) Whether the Defendant's feed in question was contaminated with Salmonella and E. Coli bacteria; and Whether Plaintiff's layers. the contamination was the cause of the loss of the On the questions posed, the learned trial Judge found that it was not in dispute that the seller was made aware of the particular purpose for which the layers mash in question was required; and that the goods in question were of a description which it is in the course of the Defendant's business to supply. As regards the argument that the layers mash in question was contaminated with Salmonella and E. Coli bacteria, the learned trial Judge referred to the Certificate of Analysis by the University of Zambia, J6 (62) Department of Food Science and Technology and to the evidence of PW2. She found that the contamination could not be attributed to the Defendant as there was inconclusive evidence with regard to the source of the contamination or that it originated from the Defendant's product at the time of manufacture. She therefore, was of the view that the feed could have been contaminated by outside factors. As regards the Plaintiff's claim that the contamination was the cause of the loss of the 699 layers, the learned trial Judge found that the claim was not supported by evidence as none was adduced as regards the cause of death of the chickens. As regards the claim that the layers mash in question was low on crude protein, calcium and phosphorous thereby causing low egg production, the learned trial Judge found that there was no evidence showing a correlation between the feed lacking the alleged minerals and the sharp drop in egg production. She referred to the analysis results sheet produced by the Plaintiff and observed that it did not state whether there was deficiency in the minerals in issue as it did not indicate what the requisite or required constituents thereof were. 'f J7 (63) Based on the above, the learned Judge came to the conclusion that the Plaintiff had failed to prove its case on a balance of probabilities that it was the Defendant's contaminated feed that caused the Plaintiff's chickens to die. And that the Plaintiff had consequently failed to prove that the Defendant had breached an implied warranty that the feed in question was reasonably fit for the intended purpose. So she dismissed the Plaintiff's claim in its entirety with costs. Dissatisfied with the decision by the learned Judge, the Plaintiff has appealed to the Supreme Court advancing four Grounds of Appeal as follows: "1. 2. 3. 4. That the learned trial Judge having found as a fact that it is not in dispute that between the period 22nd October and 8th November, 2011 the Plaintiff purchased 600 x 50kg bags of layers mash feed from the Defendant and that the Plaintiff fed the mash to its layers and further that there was no other feed purchased by the Plaintiff from other into error when she held that manufacturers during that period, fell the contamination cannot be attributed to the Defendant; The learned trial Judge misdirected herself in law and in fact when failed to show that the Defendant's feed she held that the Plaintiff adversely affected the Plaintiff's chickens; That the holding by the learned trial Judge that there is inconclusive evidence that the cause of deaths of the layers was a result of the presence of Salmonella and E. Coli is against the weight of evidence; The learned trial Judge erred in law and in fact when she held that the Defendant's feed was not contaminated with Salmonella and E. Coli nor was it the cause of the loss of the chickens in the face of documentary evidence that the samples analysed by the University , J8 of Zambia Department of Food Science and Technology were unsatisfactory." (64) At the hearing of this Appeal, the learned Counsel for the Plaintiff, Mr. Mainza, relied on the Plaintiff's Heads of Argument. In the said Heads of Argument, Counsel indicated that the Plaintiff was abandoning Ground five of this Appeal. In arguing Ground one, Mr. Mainza begun by quoting some portions of the Judgment of the learned Judge. In those portions, the learned Judge found that it was not in dispute that the Plaintiff purchased layers mash from the Defendant during the material period and that the Plaintiff fed its chickens with the said feed. And that from the Plaintiff's undisputed evidence which was to the effect that there was no other feed purchased by the Plaintiff from other manufacturers during the material period, she drew an inference that the feed which the Plaintiff took to the University of Zambia for analysis was the Defendant's feed. And that to determine whether the feed in question was reasonably fit for the intended purpose, she had to determine whether the said feed was contaminated with Salmonella and E. Coli bacteria and whether the contamination was the cause of the loss of the chickens. Counsel argued that the Plaintiff adduced J9 (65) evidence that it took a sample of the feed it bought from the Defendant for analysis. And that the Certificate of Analysis showed that the sample was contaminated with Salmonella and E. Coli bacteria. From the foregoing, Mr. Mainza forcefully argued that the Plaintiff had adduced sufficient evidence to prove that the only layers mash which was submitted to the University of Zambia for analysis originated from the Defendant Company. He then went on to point out that from the portions referred to above, it can be seen that the court below found as a fact that the layers mash in question was contaminated with Salmonella and E. Coli bacteria and that in accordance with PW2's evidence, this contamination can cause chickens to get sick and to even die. It was therefore, Mr. Mainza's position that the holding by the learned Judge that the contamination of the layers mash could not be attributed to the Defendant was erroneous and contradicted her own findings of fact as the Plaintiff did prove by way of documentary evidence that the layers mash it purchased from the Defendant was contaminated with Salmonella and E. Coli bacteria. Counsel also argued that the Defendant failed to prove that its layers mash was not contaminated as alleged by the Plaintiff. JlO (66) As regards the learned Judge's finding that the Defendant's samples taken for analysis at Vetlab Zambia limited were not found to be contaminated with Salmonella and E. Coli bacteria, Mr. Mainza submitted that the above finding was at variance with the testimony of DW1 who told the court below under cross-examination, that he analysed dust swabs from Rose Breeders Poultry Farm and not the layers mash manufactured by the Defendant Company. It was argued that quite clearly, the learned Judge fell into error as no witness testified that the layers mash in question was tested for Salmonella and E. Coli at the Defendant's plant and found to be negative. Further, that DW2 conceded under cross-examination, that it was practically impossible for the Defendant to test every batch of the feed for Salmonella before supply and that it is possible for the feed to be contaminated with Salmonella from its premises. Hence, this is a proper case in which this Court ought to interfere with the finding of fact by the trial Judge that the contamination could not be attributed to the Defendant as the said finding is not supported by evidence at all. As authority, the following cases were cited:- J11 (67) 1. Wilson Masauso Zulu vs. Avondale Housing Project Limited1 where we put it thus:- "The Appellate Court will only reverse findings of fact made by a trial Judge if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts". 2. 3. The Attorney General vs. Marcus Kampumba Achiume2 , Banda vs. Chief Immigration Officer and The Attorney GeneralJ . Grounds two, three and four were argued together. In arguing these three Grounds, Mr. Mainza, began by quoting the learned authors of Phipson and Elliot's Manual of the Law of Evidence, 11th Edition at page 73 where they state the law on the standard of proof required of the Plaintiff in civil matters. They put it thus-: "The general rule is that the party upon whom the persuasive burden of if his evidence proof rests (Le. usually the plaintiff) is entitled to a verdict establishes a preponderance of probability if he persuades the tribunal of fact that his version of the facts is more probable than that of his opponent." in his favour, Le. It was Counsel's position that in the premises, the learned Judge fell into grave error when she held that there was inconclusive evidence that the cause of death of the Plaintiff's chickens was as a result of the presence of Salmonella and E. Coli bacteria, thereby, suggesting that the Plaintiff ought to have proved beyond reasonable doubt that the cause of death of the chickens was the presence of Salmonella and E. Coli. That, J12 (68) however, in civil matters, the plaintiff is only required to prove his case on a balance of probability. Hence, Counsel's position that the Plaintiff adduced evidence to support its claim that its chickens started dying after consuming layers mash purchased from the Defendant and that this evidence was corroborated by documentary evidence on Record in form of the Certificate of Analysis from the University of Zambia and therefore, the Plaintiff did prove on a balance of probability that the Defendant's feed adversely affected its chickens and that the cause of death of the chickens was the presence of Salmonella and E. Coli in the layers mash. It was further submitted that the learned Judge also failed to take into account the evidence of the Defendant's own witness, DW4, who confirmed that he was aware that the Plaintiff's Managing Director, PW1, had complained to the Defendant's employees that her chickens were dying because of the feed bought from the Defendant and which evidence was favourable to the Plaintiff as it too corroborated PW1 's testimony that the cause of death of the Plaintiff's chickens and the drop in egg production was due to the contaminated layers mash purchased from the Defendant which the Plaintiff fed to its chickens. • J13 (69) It was Counsel's further contention that the lower court's failure to take into account DW4's evidence was a serious misdirection. Counsel, accordingly, urged us to reverse the finding that there was inconclusive evidence that the cause of death of the Plaintiff's chickens was as a result of the presence of Salmonella and E. Coli bacteria in the Defendant's feed. As authority, Counsel cited the case of Nkhata and Four Others VS. The Attorney General of Zambia4 in which the Court of Appeal set out the circumstances under which the Appellate Court may reverse the findings of fact made by the lower court. The Court of Appeal put it thus:- "A trial judge sitting alone without a jury can only be reversed on questions of fact if (1) the judge erred in accepting evidence, or (2) the judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (3) the judge did not take proper advantage of having seen and heard the witnesses, (4) external evidence demonstrates that the judge erred in assessing the manner and demeanour of witnesses." We, were, accordingly urged to reverse the Judgment of the court below with costs. On the other hand, in opposing this Appeal, the learned Counsel for the Defendant, Mr. Mwitwa, also relied on the Defendant's Heads of Argument which he augmented with oral submissions. We note that in his oral submissions, Counsel more or less repeated the arguments in the y Jl4 (70) Defendant's Heads of Arguments. We shall, therefore, sum them together. The gist of Mr. Mwitwa's submissions in response to Ground one was that the learned Judge was on firm ground when she held that the alleged contamination of the Defendant's layers mash with Salmonella and E. Coli could not be attributed to the Defendant. Counsel pointed out that although the sample that was tested by the University of Zambia was found to have been contaminated with Salmonella and E. Coli bacteria, the Plaintiff did not produce evidence to show the source of the contamination and that this can be seen from the evidence of PW2 who tested the feed. That PW2's evidence was that he could not tell whether the contamination happened at the point of manufacturing the layers mash at the Defendant's premises or it was as a result of post manufacturing and delivery that the contamination could have occurred at the Plaintiff's farm from other sources or whether the contamination existed at the point the feed was handed over to the Plaintiff. As regards the argument that the Defendant failed to prove that its feed was not contaminated with Salmonella and E. Coli bacteria, it was submitted that the burden of proving whether the Defendant's feed was contaminated with the bacteria in question and if the contamination existed Jl5 (71) at the time the feed was sold to the Plaintiff lay on the Plaintiff and not on the Defendant regardless of the Defendant's case. As authority, counsel cited, among others, the following cases:- 1. Zambia Railways vs. Pauline S. Mundia and Another5 where we put it thus: " ...the old adage is true that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable ... " 2. Khalid Mohamed vs. Attorney General6 where we held that:- unqualified proposition that a plaintiff should succeed "An automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment. I case has would not accept collapsed of its inanition or for some reason or other, judgment should nevertheless be given to him on the ground that defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need defence." proposition that even if a plaintiffs It was submitted that in the light of the above status, the Plaintiff's challenge of the findings of fact by the court below in Ground one is unfounded and the findings of fact should not therefore, be reversed as there is no basis upon which this Court can do so. As authority, Counsel cited the case of The Attorney General vs. Marcus Kampumba Achiume 1 where we explained the circumstances when an appellate court may reverse findings of fact made by the trial court. Jl6 (72) It was submitted that in the light of the above arguments and authorities, Ground one should be dismissed for want of merit. In response to Grounds two, three and four which were responded to together, Counsel submitted that since the Plaintiff failed to prove the source of contamination of the feed, the court below cannot be faulted for finding that there was no evidence to show that the Defendant's feed adversely affected the Plaintiff's chickens as was argued in support of Ground two. And that since PW1 admitted that the chickens could have died as a result of other factors as they were not analysed to prove that their death was as a result of contamination with Salmonella and E. Coli bacteria, the Plaintiff's argument under Ground three cannot stand. And further, that the Plaintiff's argument under Ground four should also fail as the Defendant had shown that there was no Salmonella or E. Coli bacteria in its feed which was analysed by Vetlab Zambia limited and the results of that analysis showed that there was no Salmonella or E. Coli bacteria in the feed and that the Defendant carried out routine checks for Salmonella and E. Coli bacteria at its premises. J18 (74) chickens was necessary to establish the real cause of death of the chickens. It was submitted that in the light of the above status, Grounds two, three and four cannot be sustained and should all be dismissed. In conclusion, we were urged to dismiss this Appeal in its entirety for lack of merit with costs. We have considered the Plaintiff's Grounds of Appeal, the written Heads of Argument for both parties as well as Counsel for the Defendant's oral submissions, the authorities cited, the record of proceedings in the court below, and the Judgment by the learned Judge in the court below. It is our firm view that all the four Grounds of Appeal in this Appeal are interrelated as they raise similar issues. For convenience and to avoid repetitions, we shall consider all the four Grounds of Appeal together. The said Grounds of Appeal raise the central question whether, in the circumstances of this case, the learned Judge was on firm ground when she found that the Plaintiff had failed to prove its case on a balance of probability that it was as a result of the Defendant's feed that was contaminated with Salmonella and E. Coli bacteria that caused the Plaintiffs J1g (75) chickens to die and that consequently, the Plaintiff was not entitled to any of the reliefs claimed as it had failed to prove that the Defendant had breached an implied warranty that the feed so supplied was reasonably fit for the intended purpose. In support of his position that the Plaintiff did prove on a balance of probability that the Defendant's feed adversely affected the Plaintiff's chickens and that the cause of death of the chickens was the presence of Salmonella and E. Coli bacteria in the said feed, Mr. Mainza took the position that this was a proper case for this Court to reverse the findings of facts by the learned trial Judge that the contamination of the feed could not be attributed to the Defendant. The thrust of Mr. Mainza's arguments in this respect, was that the Plaintiff had adduced sufficient evidence to support its claim that its chickens started dying after consuming layers mash which was purchased from the Defendant and that this evidence was corroborated by documentary evidence on record, namely, the Certificate of Analysis from the University of Zambia which showed that the Defendant's feed was contaminated with Salmonella and E. Coli bacteria. He also argued that the Defendant failed to prove that its feed was not contaminated. J20 (76) The gist of Mr. Mwitwa's arguments in response was that there was no evidence laid by the Plaintiff to establish that the cause of death of the chickens in question was Salmonella and E. Coli bacteria. And that the Certificate of Analysis from the University of Zambia relied upon by the Plaintiff does not state that the chickens died on account of the Defendant's contaminated feed and that PW2, the Plaintiff's expert witness, categorically stated in his evidence that he could not tell whether the Plaintiff's chickens were dying because of the particular feed which he analysed. We have considered the above arguments. From the outset, we wish to state that we entirely agree with Mr. Mainza that the standard of proof required of the plaintiff in civil matters is that the plaintiff must prove his case on a balance of probability (See Phipson and Elliot's Manual of the Law of Evidence, 11th Edition at page 73). This position is illustrated and fortified further by our numerous decisions including the case of Zambia Railways vs. Pauline S. Mundia and Another5 . In that case, we held that in civil cases, he who asserts a claim must prove on a balance of probability that the other party is liable. It is also true to say, as Mr. Mwitwa J21 (77) put it that in civil matters, the burden of proof lies with the party that asserts the affirmative of an issue. We, however, wish to observe from the outset that in the current case, perusal of the Record has shown that the learned Judge did not apply the higher standard of proof of beyond reasonable doubt applicable in criminal cases in this matter contrary to Mr. Mainza's argument. The learned Judge correctly applied the proper standard of proof applicable in civil cases which is proof on a balance of probability. She also properly directed herself and correctly reviewed the authorities on the subject. Hence, we find no reason to fault her. We, therefore, reject Mr. Mainza's argument in this respect. In deciding the issues before her, the learned Judge observed, and correctly so if we may say so at this stage, that the law applicable in this case is found in Section 14 (1) of the Sale of Goods Act, 1893. Section 14 (1) provides that:- "14 Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: (i) Where the buyer, expressly or by implication, makes fitness . .known to the seller the particular purpose for which the goods • J22 (78) (ii) are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose." The learned Judge was also on firm ground when she observed that there is an implied term or warranty in the sale of animal feeds that the feed must be reasonably fit and suitable for its intended purpose and that the seller has a duty to supply feed of satisfactory quality. In this matter, the learned trial Judge pointed out that the position of the law, as laid down in the case of Nutrimix Feeds Corporation Petitioner vs. Court of Appeals and Spouses Efen & Maura Evangelista (Philippines)B which she referred to in her Judgment, is that for the plaintiff to succeed in a claim for breach of an implied warranty, he must prove the following three ingredients. Firstly, that the plaintiff sustained injury because of the product; secondly, that the injury occurred because the product was defective; and thirdly, that the defect existed when the product left the hands of the defendant. The online Free Dictionary at legal-dictionary.thefreedictionary defines an implied warranty as:- J23 (79) "A promise, arising by operation of sold will be merchantable and fit sold." law, that something that for the purpose for which it is is The question that follows therefore, IS, in the circumstances of this case, did the Plaintiff adduce sufficient evidence to prove that there was breach of an implied warranty that the feed the Defendant supplied to the Plaintiff was not fit for the intended purpose? As correctly submitted by Mr. Mwitwa, the onus was on the Plaintiff to prove not only that the Defendant's layers mash was contaminated with Salmonella and E. Coli bacteria when it was delivered to the Plaintiff but also that the Plaintiff's chickens died as a result of being fed with the Defendant's contaminated feed. This duty lay squarely on the Plaintiff's shoulders as the party which made the allegation. Our firm view is also that the submission by Mr. Mainza that the Defendant did not prove that its feed was not contaminated as alleged by the Plaintiff cannot be more wrong but an ingenious attempt to shift the onus on the other party which cannot stand. As regards the Plaintiff's allegation that the contamination of the feed as alleged was from the source of the feed, bearing in mind the evidence • J24 (80) from the Plaintiff's own witness, PW2, who analysed the samples of the feed and prepared the Certificate of Analysis relied upon by the Plaintiff to support its claim that the contamination was from the Defendant's plant, our firm view is that Mr. Mainza's submission in this respect cannot be more wrong. The evidence of PW2 was that he was not able to determine or tell whether or not the source of the contamination was at the point of manufacture of the feed as the mere analysis of the feed itself could not establish the source of the contamination. His evidence was also that he never visited the Plaintiff's farm because the samples that he tested were delivered to him. He also conceded, under cross-examination, that the samples for analysis ought to have been collected from the original bags of feed supplied before they were opened. And that Salmonella and E. Coli bacteria can be found anywhere in the environment where there is faecal matter or where the feed is exposed to matter contaminated with Salmonella and E. Coli bacteria. In view of the above evidence, our firm view is that the learned trial Judge cannot be faulted for coming to the conclusion that although there was before her documentary evidence on record in form of the Certificate of Analysis issued by the University of Zambia, which showed that the • J25 (81) samples analysed were contaminated with Salmonella and E. Coli bacteria, the source of the contamination could not be ascertained as the samples submitted by the Plaintiff for analysis did not establish the source of contamination. Therefore, the learned Judge correctly analysed the evidence before her when she came to the conclusion that the evidence laid before her by the Plaintiff was inconclusive as to the source of the contamination or indeed, that the contamination originated from the Defendant at the time of manufacture or that it existed at the time of delivery of the feed to the Plaintiff. She was also terra firma when she observed that the feed could have been contaminated by outside factors. As regards the Plaintiff's claim that its chickens died as a result of being fed with the Defendant's feed that was contaminated as alleged, Counsel for the Plaintiff relied upon the Certificate of Analysis from the University of Zambia and on the evidence of DW4. The sum total of DW4's evidence was that he was aware that PW1 had complained to the Defendant's employees about the dying chickens and low egg production. However, this complaint by PW1 cannot and should not in any way be •• J26 (82) stretched as providing a link or connection between the samples that were analysed by the University of Zambia and the actual cause of the deaths of the Plaintiff's chickens. We say so because the indisputable and clear evidence on Record by the Plaintiff was that none of the 699 chickens that died were taken for analysis to determine the cause of death. Consequently, the position taken by the learned trial Judge that since no evidence was laid by the Plaintiff as regards the cause of the death of the chickens as no analysis of the sick or dead chickens was produced to show that the cause of sickness or deaths was Salmonella and E. Coli bacteria found in the samples of feed which was analysed by the University of Zambia, the Plaintiff's case failed to meet the threshold upon which liability could have been impugned on the Defendant's feed. Further, it is clear that in this case, the learned Judge was faced with two conflicting positions. The Plaintiff claiming on one hand that the loss of its chickens was as a result of eating the Defendant's feed which was contaminated with Salmonella and E. Coli bacteria, and the Defendant's position that its feed was not contaminated as alleged as the analysis of its feed supplied during the same period to Ross Breeders Poultry Farm tested negative of the alleged contamination. In her analysis of the • J27 (83) evidence before her, the learned Judge accepted the Defendant's version of the evidence which was to the effect that its feed was tested by Vetlab Zambia Limited and found not to have been contaminated. And that the Defendant sold feed to other customers during the material period but received no complaints about the feed or the alleged contamination. All we can say is that the learned Judge was entitled to accept the version that she found more probable than not. And she also gave reasons why she accepted the Defendant's version and not that of the Plaintiff. Therefore, we cannot fault her for coming to the conclusion that she did. The decision in Khalid Mohamed vs. Attorney General6 fortifies our position in this matter in that in the earlier case, we made it clear that the plaintiff cannot rely on the alleged "failed defence" of the defendant to sustain his claim against the defendant and that a plaintiff should not automatically succeed whenever a defence fails as the plaintiff must prove his case and that if he fails to do so, the mere failure of the opponent's defence does not entitle him to judgment. For the reasons given above, our firm view is that the Plaintiff's case has not met the standard upon which we can reverse the findings of fact made by the learned trial Judge as there is simply no basis upon which we •• • J28 (84) can interfere with the findings of fact in this matter or upon which we can draw an inference that the feed which was submitted to the University of Zambia for analysis and found to be contaminated with Salmonella and E. Coli bacteria is what caused the Plaintiff's 699 chickens to die as none of the sick or dead chickens was analysed to show the cause of death. Therefore, we are not satisfied that the Defendant breached an implied warranty that the feed it supplied to the Plaintiff was fit for the intended purpose, which could have formed the basis upon which we could have found the Defendant liable for the loss suffered by the Plaintiff. During the course of hearing this Appeal, we did put questions to the learned Counsel for the Plaintiff. The gist of these was whether the Plaintiff had adduced sufficient evidence to prove that its chickens died asa result of being fed with the Defendant's feed and why the chickens were not examined to confirm that they died of Salmonella or E. Coli bacteria. In response, Mr. Mainza more or less repeated the arguments in the Plaintiffs Heads of Argument. He however, also stated that he was not in a position to answer the question why the chickens were not examined. Clearly, Counsel's responses did not at all persuade us to change the position that we had taken of this Appeal that there was no link between the alleged J29 (85) contamination of the feed and the resultant deaths of the chickens as none of the 699 layers that died were taken for analysis to establish what could have caused the deaths- whether by consuming the feed contaminated as alleged or from other causes. The link is also broken as to whether the . contamination of the feed analysed was at the source of the feed at the Defendant's premises up to the point of delivery or at the Plaintiff's premises after delivery. Therefore, on the basis of the above status, we find no merit in all the four Grounds of Appeal. We dismiss them all. In sum, this Appeal lacks merit. We dismiss it with costs to the Defendant, to be taxed in default of agreement. _ :.. ~.\..'.c,._.l.(~_ ..'. H. Chibomba SUPREME COURT JUDGE SU alila ME COURT JUDGE 1l... L:.. J ~E ~- --'--"-R M. Kaoma ."._.-.......-r ; ~ .. SUPREME COURT JUDGE