British Airways PLC v Andrews Travel and Safaris Ltd (SCZ Appeal 188 of 2000) [2001] ZMSC 121 (27 June 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 188/2000 HOLDEN AT LUSAKA. (Civil Jurisdiction) BRITISH AIRWAYS PLC AND ANDREWS TRAVEL AND SAFARIS LIMITED Coram: Sakala, AG. DCJ., Chirwa and Lewanika JJS. On 15th February and 27th June, 2001. For the Appellant: Mr. N. K. Mubonda of D. H. Kemp and Company. For the Respondent: Mr. M. F. Sikatana of Veritas Chambers. Sakala JS., delivered the Judgment of the Court. JUDGMENT Case referred to: 1. Nkhata V The Attorney-General (1966) ZR 124. For convenience, we shall refer to the appellant as the plaintiff and the respondent as the defendant which designations they were at trial. This appeal is against a judgment of the High Court dismissing the plaintiff s claim and entering judgment in favour of the defendant on a counter-claim. The undisputed facts leading to the appeal are that the plaintiff is an airline operating flights from Lusaka to other destinations. The defendant is a travel and safari : J2 : agent operating from Lusaka. On divers dates but between March 1995 and July 1996, the plaintiff, pursuant to an agreement between the parties, gave to the defendant air-tickets for sale. The defendant sold the air-tickets belonging to the plaintiff valued at K67,513,377.78. According to the plaintiff, the defendant applied this money received from the ticket - sales to its own use. The plaintiff issued a specially endorsed writ claiming this amount. At trial the plaintiff produced documentary evidence in form of a letter written on behalf of the defendant suggesting that the defendant did not dispute owing the plaintiff the amount of money in issue. The defendant too, produced documentary evidence in form of receipts prepared by an employee of the plaintiff suggesting that the defendants paid money to the plaintiff which had not been credited to the defendant’s account. On the foregoing facts and on the oral and documentary evidence before court, the trial judge found that the defendant paid several amounts equivalent to the plaintiff s claim receipted in the plaintiff s books of account by an employee of the plaintiff, one George Mate, a Cashier. The court found that a fraud was committed on the plaintiff by their own employee who received and stole the money, and thereafter falsified the accounts and resigned. It was common cause that George Mate, the plaintiffs former employee, was subsequently arrested for fraudulent false accounting in connection with the stolen money. He escaped while on police bond. The court rejected a submission that the debt was still owing, but accepted a submission that the fraud was a matter between the plaintiff and its employee, George Mate and that the defendant had nothing to do : J3 : with it. The learned trial judge refused to hold the defendant liable on the basis of a letter in which it purportedly admitted its indebtedness and offered to pay. The court accepted the explanation that the purported letter of admission was written by a Financial Director before he was made aware by the Management Accountant of the payments made by the defendant to the plaintiff. In dealing with the counter-claim, the court observed that the plaintiff admitted receiving the amounts in issue including the refunds for the two air-tickets. Two grounds of appeal were advanced by Mr. Mubonda on behalf of the plaintiff. The first ground was that the learned judge erred in fact and in law by failing to take into account the fact that the defendant admitted owing the sum of money claimed by the plaintiff. We heard arguments by Mr. Mubonda on behalf of the plaintiff that the letter dated 10th October, 1995, written by the defendant to the plaintiff confirmed that a sum of K63,000,000 was owed by the defendant to the plaintiff. It was submitted that the letter was an unequivocal in its terms and made a proposal for the settlement of the debt in two installments. It was also submitted that the reasons by the trial judge for refusing to accept the letter as a basis for liability were erroneous because the author of the letter was not called as a witness and that the defendant was estopped from resiling from the letter. The second ground of appeal attacked the trial judge’s upholding of the defendant’s counter claim in the sum of US$40,471. The arguments on this : J4 : ground were that the sum, the subject of the counter-claim, had already been deducted before the plaintiff arrived at the sum claimed in the writ. On behalf of the defendant, Mr. Sikatana supported all the findings of the learned trial judge. He submitted that the plaintiff s own documentary and oral evidence established that the money in issue had been received and receipted by their own employee, George Mate, who misappropriated it. We have considered the documentary and the oral evidence on record. We are satisfied that on the facts not in dispute the issue for determination before the trial court centered on the question of credibility. The learned trial judge considered the letter written on behalf of the defendant which suggested that the defendant accepted liability. The court also considered the circumstances in which the letter was written. The court also considered the copy of receipts produced by the plaintiff showing that they were cancelled while the originals of the same receipts produced by the defendant were not cancelled and showed money paid to the plaintiff. The court accepted that the original receipts appeared genuine. The learned trial judge found that George Mate, an employee of the plaintiff, who did not give evidence, swindled the plaintiff. The trial judge concluded that the plaintiffs claim was untenable. These were all findings of fact. On the counter-claim, the learned trial judge was very brief. However, he found that on the evidence, the plaintiff admitted receiving the amount of US$20,058.36 and US$15,000 and that the refunds of US$2,743,000 and US$2,670,000 were not disputed. These were also findings of fact. : J5 : The gist of the arguments on behalf of the plaintiff is that we must reverse all these findings by the trial judge. In other words, the plaintiff is in substance attacking the learned trial judge’s findings of fact. The conditions for the reversal of a finding of fact of a trial judge were settled by the Court of Appeal, the predecessor to this Court, in the case of Nkhata Is The Attorney-General(l) when that court stated:- A trial judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the appellate court that: (a) (b) (c) (d) by reason of some non-direction or misdirection or otherwise the judge erred in accepting the evidence which he did accept; or in assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or it unmistakably appears from the evidence itself or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or in so far as the judge has relied on matter and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer. In our considered view, the evidence which was accepted fully justified the findings made. We have no doubt that none of the conditions quoted obtained here. In consequence, the trial judge’s findings cannot be disturbed. : J6 : Mr. Mubonda was at great pains to criticise the defence evidence in an attempt to show that the learned trial judge should not have come to the conclusion which he did. We are satisfied that on the facts, which were not in dispute, the learned trial judge was on firm ground. This appeal is, therefore, dismissed with costs to be taxed in default of agreement. D. M. Lewanika, AG. DEPUTY CHIEF JUSTICE. E. L. Sakala, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.