Deans Haulage Ltd v Dunavant Zambia Ltd (Appeal 107 of 2003) [2007] ZMSC 133 (13 December 2007)

1 J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 107 OF 2003 HOLDEN AT LUSAKA (CIVIL JURISDICTION) B ETW E E N: DEAN'S HAULAGE LIMITED APPELLANT AND DUNAVANT ZAMBIA LIMITED RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Mushabati, JJS. On 28th June, 2007 and 13th December, 2007. For the Appellant : N, Sipalo of Ngenda Chambers For the Respondents : M. Mwenye of Sharpe Howard and Mwenye JUDGMENT Mushabati, JS., delivered the judgment of the Court. Cases referred to: 1. Finance Bank Zambia Ltd Vs Administrator of the Estate of Billingsley (1999) Z. R. 30 2. Z. R. A Vs Hitech Trading Company Ltd (2001) z. R. 17 3. G. D. C. Hauliers Vs Trans-carries Ltd (2001) Z. R. 47 4. Zaza Vs Zambia Electricity Supply Company Ltd (2001) Z. R. 107 J 2 5. Mususu Kalenga Building and another Vs Richman's money lenders Enterprises (iggg) Z. R. 27 6. Communications Authority of Zambia and another Vs Kashita SCZ Judg. No. 17 of 2005 (unreported) Legislation referred to: 1. High court Rules Cap. 27 — 0.40 r 6 2. Supreme Court Act, Cap. 25 - S. S.24(1) (d) and 25 (1) (b) (I) 3. Supreme Court Rules Cap. 25 - R. 39 This is an appeal against the High Court judgment awarding the respondent a sum of K38,130,900 from the claimed sum of K85,000,000. The appellant had counter claimed K900,000 per day for each of the seven trucks and trailer that were detained on the orders of the respondent Company. The undisputed facts of this case were that the appellant and the respondent the entered into a written contract in which the appellant were contracted to transport and source seed cotton. One of the terms of the contract provided for pre-financing of the project and a sum of K85,400,000 was paid in advance to the appellant for the said purpose. J 3 In this judgment we shall continue to refer to the appellant as the defendants and the respondents as the plaintiffs, as this is what they were in the court below. A dispute later arose between the two parties, the plaintiff alleging that the defendant had failed to account for the advance payment of K85,000,000 and as a result it detained some truck belonging to the defendant. The defendants disputed the plaintiff's claim and instead counter-claimed damages from the plaintiff for having detained its seven trucks. The evidence in support of the plaintiffs claim was adduced from four witness namely P. W.l, Neil Garraway, the plaintiff Company's General Manager, P. W.2, Patrick Kaseje Banage, the Group Agriculture Manager, P. W. 3 Gracious Soko, Western Regional Manager and P. W.4, Alex Gilbert Vlahakis, a business man, engaged in trading and transport business. The sum total of their evidence was that the relationship between the two parties went back to 1997 when the defendants were contracted to transport cotton seed. This arrangement continued until 2000 when Lonrho Cotton Ltd restructured its marketing programme by reducing the buying depots. The new arrangement was to buy cotton directly from the farmers and have it delivered to Mumbwa Cotton Ginnery. Various transporters, J 4 including the defendants, were approached and informed of the new arrangement, which included the pre-financing scheme. The defendant Company was paid K85,400,000 under the new scheme. This amount was based on the number of trucks the defendant had. One of the defendant's trucks, namely AAE 6463, was offered as a collateral security for the K85,400,000 paid to the defendants. When the parties had agreed to the arrangement a formal contract was signed on 15th May, 2000. However, in June, 2000 it was observed that the defendant company did not adhere to the set out conditions and so Mr Dean Jolly, its Managing Director, was invited to some meetings where it was suggested that the defendant company should concentrate on transportation of the seed cotton and requested to refund the advance payment to the plaintiff company. Mr Jolly rejected the new arrangement and this prompted the plaintiff company to restrain the defendant's trucks from leaving the plaintiff's premises. Efforts to mediate were made but failed and at the end of it all it was discovered that a total sum of K38,130,900 was still owing from the defendant company. P. W.4 merely confirmed that the pre-financing arrangement was put in place during the year under review. He, himself, was advanced a total of K92,000,000 for the procurement of the seed cotton. When the defendant company failed to refund the advanced money, the plaintiff decided to sue the defendant company J 5 on the advice of its advocates and so it released the defendant's trucks. Mr Jolly refused to get the trucks. The defendant company called three witnesses, D. W. 1 Benson Banda, a driver, D. W.2 Peter William Fredman, Operations Manager, and D. W.3, Dean John Jolly, the Director. The gist of their evidence was that D. W.l was, on 4th June, 2000, sent to Mumbwa to collect some seed cotton from Shikalende depot and deliver it to Mumbwa Ginnery. The said seed cotton was purchased by a Mr. R. Muchena an agent of the defendant company. On arrival at the depot he found no packaging materials for the seed cotton. However, when the packaging materials were made available D. W.l was told by the Area Credit manager that the farmers were going to be allowed to sell their seed cotton only after they had paid back their loans and he directed or persuaded the farmers as a result to sell the seed to the plaintiff's company at a higher price than that which was offered by the defendant company. When D. W.2 came he, D. W.l, was finally allowed to load the seed cotton and delivered the consignment. When he tried to drive out of the Ginnery, after delivery, he was not allowed to do so. Instructions were later issued by D. W.3 to the effect that the procurement of the seed cotton should stop until further notice. None of the defendant's trucks were allowed to leave the ginnery. On the advance payment, D. W. 3 testified that the whole amount was used as per contract. However, the defendant company Ltd a J 6 counter- claimed for damages against the plaintiff for breach of contract and loss of business arising out of the detention of its trucks. These are the brief stories adduced by the parties. At the conclusion of the trial the plaintiff was awarded a reduced sum of K38,130,000 with interest. The defendant's counter - claim for breach of contract was dismissed. On loss of business to defendant was awarded damages equivalent to five days hire charges for seven trucks and these were to be assessed by the Deputy Registrar. The defendant was also awarded costs for fuel for the trips which the defendant company made to Mumbwa to secure the release of the trucks. The defendant appealed against the above orders and filed six grounds of appeal which are as follows: 1. That the trial Court erred in law and in fact by stating that the Appellant Company was in breach of the Contract when, in fact, it was the Respondent Company which was in breach. 2. That the Court below erred in law and in fact by accepting a different claim in the sum of K38,130,900.00 without amending the Writ wherein the sum of K85,000,000.00 was claimed. J 7 3. That the trial Court erred in fact by finding that the Appellant Company's trucks were detained for only 5 days when, in fact, the Appellant Company's trucks were detained for 56 days. 4. The Court below erred in not finding as a fact that the Contract had two separate Contracts within it with different implications. 5. The Court erred by not acknowledging the provisions in the Contract that if there was a default or breach of Contract the transporter then the contractor would "execute against the said charge to liquidate the said debt" and not detain the Appellant Company's trucks which breach at any rate is denied by the Appellant Company. 6. The Court below erred in law and fact in awarding the Plaintiff Company 70% costs as these were unjustified. Theses were supported by written heads of argument and brief oral submissions. The Counsel for the plaintiff, relying on his written heads of argument, made a brief oral submission. We shall consider these issues later in our judgment. At this point in time we wish to deal with the application made by the defendant for leave to adduce fresh evidence. This was made when we J 8 heard the appeal but refused to grant it. We promised to give our reasons later and we are now doing do. This court has discretionar/ powers under Section 25 (1) (b) (I) of the Supreme Court Act Cap. 25 as read with Rule 39 of the Rules of the Supreme Court Act, Cap. 25. However, this discretion may be exercised on satisfaction of some conditions. One of these conditions is that the piece of evidence, intended to be produced or adduced existed at the time the action was commenced and that it is relevant. Further it could not be adduced or produced in court because it could not be found even after a diligent search. We clearly made this point in the case of Finance Bank Zambia Ltd Vs The Administrator of the Estate of John Wesley Billingsley(l). We said, the court has a discretion to admit fresh evidence were it is established that the evidence could not have been obtained with reasonable diligence for use at the trial. We expressed a similar view in the case of Z. R. A. Vs Hitech Trading Company Ltd (2). h full trial was held in this case and the parties had the chance of inspecting each other's documents. We could not find any good reason why we should have exercised our discretion in favour of the defendant, whose, desire in our view, to adduce such evidence was just a mere attempt to have a second bite of the cherry, so to say. We were not J 9 satisfied that the defendant had adduced sufficient evidence for us to exercise this discretion in its favour and so we dismissed the application. We now come back to consider the main appeal. The appellant, in his heads argument, had included two other grounds of appeal which were not contained in the memorandum of appeal and this made the Counsel for the plaintiff to object to their inclusion because there was no amendment to the original grounds of appeal. Mr. Sipalo conceded and opted to rely on the grounds of appeal as contained in the memorandum of appeal. The gist of the appellant's heads of argument and submissions was that the plaintiffs were in breach of contract in that they failed to pre-finance the defendants operations to the extent it even failed to provide some money for fuel. On second ground of appeal it was argued that the court should not have awarded the plaintiff a sum that was not pleaded. The pleaded amount was K85,400,000 and not K38,130,900 which was not claimed. On the trucks the essence of the argument was that the court erred when it awarded the defendant damages for 5 days only when in fact the trucks were detained for more days though on different days. This is as per ground 3. i J 10 They were detained between 5th July, 2000 to 30th August, 2000 which worked out at a total of 347 days between all seven trucks. On the fourth ground it was argued that the defendant company was just contracted to transport the seed cotton not to buy the same. So according to the defendant there were two different contracts in one namely a contract to transport the seed cotton and another contract for purchase of seed cotton. On the fifth ground of appeal the main argument was that the plaintiff should not have detained seven trucks as a result of the purported breach of the contract. It should have detained only one truck, as contained in the agreement, though the breach itself was denied by the defendant. Finally the last ground was against the award of 70% of the costs to the plaintiff. It was argued that since both parties were partially successful in their claim then each them should have borne their own costs. In reply to Mr, Sipalo's detailed and lengthy heads of argument Mr. Mwenye argued that grounds one and two were merely an attack of the trial court's findings of fact which cannot lightly be reversed by the appellants court. J11 In fact this was the basis of his whole submissions. On the disputed amount of K85,400,000 he submitted that the defendant on its own acknowledged its indebtedness to the plaintiff through their own letter. On the second ground of appeal Mr Mwenye argued that there was evidence on record to prove that the amount in dispute was less than that claimed in the writ, in other words it had been reduced. It would have amounted to injustice if an award was to be made for a greater amount than that which was due. On the detention of the trucks it was argued that in fact the evidence showed that they were held during the long week-end and thereafter they were released. According to Mr Mwenye this was a finding of fact as well. On the fourth ground of appeal it was argued on behalf of the plaintiff that the lower court was not expected to make a ruling on that because it was not called upon to do so, in short the issue of two contracts in one was never raised at all in the court below. On the fifth ground it was submitted that the ground be dismissed because the trial court had already made a finding that the trucks were wrongfully detained and the defendant was awarded some damages. J 12 On costs which are the basis of the last ground of appeal, the plaintiff argued that costs are awarded in the discretion of the court as per Order 40 r 6 of the High Court Rules Cap. 27. We have considered the evidence on record and arguments by both Counsel. We have no doubt that most of the issues raised were findings of fact based credibility. As rightly argued by plaintiff's Counsel, findings of fact, based on credibility can rarely be reversed by an appellate court. This point was clearly spelt out in this Court's decisions in the cases GDC Hauliers (Z) Ltd Vs Trans­ Carriers Ltd (3) and Zaza Vs Zambia Electricity Supply Company Ltd (4). The trial court below had an opportunity of seeing and hearing the witnesses, unlike us in this court. We said in the former case that " findings of credibility are not to be interfered with by an appellate court which did not see and hear the witnesses at first hand". In Zaza's case (supra) we said; findings made by a trial court should not lightly be interfered with, in keeping with what this court has said on numerous occasions in the past. So in view of what we have stated above we find it otiose to separately consider the grounds of appeal attacking findings i J 13 of fact. In this regard all grounds of appeal fail to the extent that they attack the lower court's findings of fact. We are however, inclined to comment on some of the issues. On the second ground we wish to consider the question whether it was necessary to amend the writ on the simple ground that the amount proved to have been still owing was less than that in the claim. The defendant, itself, did acknowledge receipt of K85,400,000 as a pre-financing fund. It did so in its letter dated 26th July 2000 at pages 178 and 179 of the record. It said; on the 15th of May, 2000 we entered into an agreement with Lonrho Cotton 2000 to procure and supply cotton to LC 2000 and solicited and were availed pre-finance totaling K85,400,000 (cheque No. 267231) and not K101,400,000 as you have stated in your letter dated 20th July, 2000. Finally in the first paragraph of the same letter at page 179 they said; May we remind you that we have at no time stated that we were unwilling to repay your pre-financial loan. We have in fact been prepared to settle this as amicably as possible but you yourselves have been adamant as to the immediate recovery of these monies. J 14 We can not find any better admission of the debt, on the part of the defendants, than the above extracts from their own letter. If the amount claimed was reduced to a lower figure, we find nothing wrong with that to necessitate a formal amendment of the writ. It was not a separate claim which was unrelated to the amount reflected in the pleadings. So we find this argument untenable. It was argued under the fourth ground of appeal that the contract under which the sum of K85,400,000 was obtained contained two separate contract which the lower court ought to have considered. We find this argument strange. It was not pleaded in their defence. Neither was it raised in the court below. We have always said that an issue not raised in the trial court can not be raised in the appellate court, which was the case here. We said in the case of Mususu Kalenga Building Vs Richman's Money Lenders Enterprises (5) at page 28 in the third paragraph as follows; IVe have said before and we wish to reiterate here that where an issue was not raised in the court: below it is not competent for any party to raise it in this Court. The defendant's failure to raise that issue in the court below can only be blamed on itself and nobody else and we find no merit in that argument. * J 15 Finally the last ground of appeal attacked the lower court's decision to apportion costs to be paid to the plaintiff. Mr Sipalo argued that his was wrong because both parties were partially successful in their claims. In awarding costs to he plaintiff the trial court had this to say; In the circumstances of this case, I order that the defendant be liable for 70°/o of the plaintiff's costs. We understand this to mean that the learned trial judge took into consideration some factors which made her to award the said costs. This was within her discretion. As we said the case of Communications Authority of Zambia and another Vs Andrew Kashita (6) as read with Order 40 r 6 of the High Court Rules cap. 27 of the laws of Zambia a Court has discretion to award and apportion costs. If no such order is made only then shall the costs follow the event. In any case the appeal against the award of costs was incompetent because it was without the leave of the trial Court or this Court as per Section 24(l)(d) of the Supreme Court Act, Cap. 25. We have delved in detail on the award of costs purely for the guidance of the Courts below. We are therefore unable, to fault the learned trial judge in any way. The sum total of this judgment is that the appeal lacks merit. The lower court's judgment is up-held. The appeal is dismissed with costs to be taxed in default of agreement. J16 D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE SUPREME COURT JUDGE