Humphrey Sepiso Muyatwa v Vision Hired Ltd (Appeal 62 of 2010) [2011] ZMSC 31 (3 March 2011)

2 JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL NO. 62 OF 2010 (Civil Jurisdiction) BETWEEN: HUMPHREY SEPISO MUYATWA (MALE) T/A CAPTURE TECHNOLOGY DEBT TRACKING SYSTEM AND , , ' APPELLANT VISION HIRE LIMITED (A REGISTERED COMPANY) RESPONDENT CORAM: MAMBILIMA, DCJ, CHIBESAKUNDA and WANKI, JJS. On 7th December, 2010 and 3th March, 2011 For the Appellant: For the Respondent: In Person N/A JUDGMENT Wanki, JS, delivered the Judgment of the Court. This is an appeal, against a judgment of the High Court at Ndola, dismissing the Appellant’s claim for payment of commission and damages. On 11th April, 2006 the Appellant filed a Writ of Summons in which he claimed for:* 1. Payment of the amount of KI,200,000.00 being the amount due and owing to the Plaintiff by the Defendant therein as commission for service rendered by the said Defendant in his employment as the Debt Collector. 2. Damages for unlawful and unjustifiable determination of the Plaintiffs services by the Defendant under the circumstances as deposed in the statement of claim in support of the Writ of Summons and annexed hereto. J2 3. Court fees, legal charges and costs of and incidental hereof and as stipulated in the Statement of Claim aforesaid. The Writ of Summons was supported by a Statement of Claim which reads:- 1. The Plaintiff at the material times an agent of the Defendant Company and lawfully performing his duties as such Agent in pursuing and collecting amounts'of money from all persons indebted to the said Defendant Company. 2. The Defendant is a Limited Company and operates as Hire Vision Limited. 3. The Defendant engaged the Plaintiff as its Agent and Debt Collector and assigned him (Plaintiff) to collect the debts from one Mr. Saasa Musanje, the employee of the Bank of Zambia who the Plaintiff was informed had been reluctant and/or deliberately ignored to pay his debt to the Defendant Company. 4. That to the effect as the foregoing as in paragraph 3 of the Statement of Claim the Defendant Company made the said Saasa Musanje commit himself in writing on the 10th August, 2005 that he will be paying the said debt through the Plaintiffs Company the Capture Technology Debt Tracking System and failure of which the said company the (Capture Technology) would proceed to Court for the purposes herein. 5. That however, after the Plaintiff had commenced his duties and indeed collected part of the debt owing from Mr. Musanje, he was surprised to learn that the Defendant Company had without his (Plaintiff) knowledge or any warning that the Defendant Company will be dealing directly with Mr. Musanje himself that the Defendant Company had in fact written the Bank of Zambia, Mr. Musanje’s employer that the Bank of Zambia should collect its debt from Mr. Musanje together with the Plaintiffs dues on behalf of the said Defendant Company. 6. That by reason of the foregoing, the Plaintiff approached his said Principal, the Defendant Company herein and after some discussions the Plaintiff decided to take the action he has now taken claiming the following:- (a) Amount of KI,200,000.00 cash being the amount due and owing to the Plaintiff as commission for services rendered to the Defendant Company herein; J3 (b) Damages for unlawful and unjustifiable termination of the Plaintiffs service without notice and claims- K50,000,000.00 compensation for inconvenience caused to the said Plaintiff or any amount as the Court may decide; (c) Court fees, legal charges and costs of any incidental to the cause or action herein of not less than KI5,000,000.00. (d) Interest on the amount claimed (K51,200,000.00) at the rate of 45% per annum from the date of the Writ of Summons filed herein. The Defendant filed a defence stating that:- 1. The Defendant denies paragraphs 1 of the Statement of Claim and shall put the Plaintiff to strict proof. 2. The Defendant admits paragraph 2 of the Statement of Claim. 3. The Defendant denies paragraph two in so far as it states that the Defendant had engaged the Plaintiff as Agent. 4. The Defendant will further state that the Plaintiff was only verbally engaged to collect the sum of K4,100,000.00 from Mr. Saasa Musanje in return to receive a commission of 15% of the amount collected. 5. In response to paragraph 4 and 5 of the Statement of Claim, the Defendant will aver that contrary to the instructions given to the Plaintiff for collection of the money owing from Mr. Musanje in full within weeks of giving instructions and without consulting the Defendant, the Plaintiff entered into instalments arrangement with Mr. Musanje which was stretched over a period of more than one. 6. The Defendant will further state that the instalments were coming in at very irregular intervals such that the Defendant had to intervene when it became clear that the Plaintiff was failing to collect the money as instructed. 7. The Plaintiff has been paid the commission he is entitled to on the amount collected and the Defendant will aver that the Plaintiff is not entitled to the relief sought under paragraph 6 of the Statement of Claim. 8. The Defendant will further aver that the Plaintiff has never been an employee/servant, or Agent of the Defendant to claim for damages for unlawful and unjustifiable termination of service. 11 I J4 9. So as herein before specifically admitted the Defendant denies each and every allegation as if the same was set out and traversed seriatim. The Plaintiff gave evidence in support of his claim when the case came up for hearing and called no other witness. The Plaintiffs case was that on 3rd February, 2005, Vision Hire Limited, the Defendant employed him to collect money from a debtor Saasa Musanje of Bank of Zambia. The^amount to be collected was K4,800,000.00. Following his said employment he went to Musanje and handed him a demand letter which he wrote. On 4th February, 2005 he signed an agreement with Musanje that he would pay in instalments. In accordance with the agreement Musanje paid him K500,000.00 which he took to the Defendant. Later he collected a sum of K750,000.00 which he took to the Defendant. After that he took Musanje to the Defendant. It was agreed again that Musanje should pay his debt through him. Thereafter in August, 2005 when he went to him Musanje refused to give him any money as he alleged that the Defendant had written to the Bank of Zambia to recover the money from his salary and pay it directly to the Defendant. After learning that the Defendant had written to the Bank of Zambia, he went to the Defendant and asked them about the letter they wrote to Bank of Zambia behind his back. There was however, nothing that they came to. It was then that he instructed his lawyers to commence the proceedings. The amount that he was instructed to collect was not K4,100,000.00 as averred in the defence. According to him the Defendant had not paid him. In cross-examination, the Appellant said that he was supposed to be paid KI,200,000.00. The said amount was supposed to be paid by Musanje. He was supposed to collect the money K4,800,000.00 plus KI,200,000.00 as a Debt Collector. They did not agree on 15%. He told Musanje to pay K6,000,000.00 including collection fees. The collection fee was 25%. He was not paid commission for the KI,250,000.00 that he collected. J5 The Defendant called two witnesses Aston Chellah Maule, D. W. 1 and Muhamad Desai, D. W.2. In his evidence D. W.l stated that in February, 2004 he met the Plaintiff whom he had known as a Debt Collector. He explained to him about the problem of collecting money from two Bank employees Joseph Daka and Saasa Musanje who had got goods from their shop and gave them post dated cheques which were returned as unpaid after depositing them. After that he asked the Plaintiff to assist him to recover the money from the two debtors. He gave the Plaintiff a time frame in which to collect the money. They requested the Plaintiff to do it within 30 days and he agreed that it was possible. Thereafter he took the Plaintiff to his boss and it was agreed he would be paid 15% of what was owed and collected. That was 15% of any amount collected. The collection was erratic and the time frame was not respected. The Plaintiff took a month to collect the first K500,000.00 and a further four months to collect K750,000.00 from Musanje. They issued receipts of the money collected. D. W.l further stated that he met the Plaintiff in 2005 and they made the arrangement in February, 2005. The payments were not made according to what they agreed on. In August, 2005 the Plaintiff went to tell him he was having problems with getting the money from Musanje. As a result he decided to supplement the Plaintiffs efforts by writing a letter to the employers of Musanje, the Bank of Zambia. The letter did not stop the Plaintiff from collecting the money. He did not tell the Plaintiff about the letter. The money had not been collected and if he collected it he would be paid his fee of KI,200,000.00. The Plaintiff was paid his commission for the KI,250,000.00 he collected. In cross-examination D. W.l stated that he did not tell the Plaintiff to stop collecting the money. The Plaintiff was paid for the money he collected. He was paid 15% of the amounts he collected. His boss paid him. It was not true that he was not paid. He was surprised that he took the matter to Court after he was paid. IMS TTit r rm J6 In his evidence D. W.2 stated that the Plaintiff was engaged by D. W.l to collect debts from the Bank employees. The Plaintiff was not his employee. He was given one case of Joseph Daka and he successfully completed it and was paid 15% commission of the amount he collected. That was the agreed amount. After that the Plaintiff was then given the case of Saasa Musanje. He brought in two amounts, one for K500,000.00 and another for K750,000.00. He paid K75,000.00 for the amount K500,000.00. When the Plaintiff brought in the amount of K750,000.00 he was paid 15% cash. The full amount was not v & collected and the Plaintiff was not stopped to collect the money. In cross-examination D. W.l stated that he did not write the amount as it was a quite agreement. He was aware that the Plaintiff alleged that he was not paid anything. He was surprised he was saying that he was supposed to complain because the Plaintiff had failed to collect the money in full. He was paid his interest for the amount he brought. He was paid for whatever money he collected. The trial Court after considering the evidence before it was satisfied that the Defendant Company does not owe any money over the contract. The Plaintiff was required to collect the money owed by Saasa Musanje. That being the case, it found that the Plaintiff has failed to prove his case. The Plaintiffs claim was therefore dismissed with costs. The Plaintiff has appealed against the finding of the trial Court. In support of the appeal, the Plaintiff filed an amended Memorandum of Appeal and heads of argument which contained eleven grounds of appeal as follows: - 1. The Lower Court erred in holding that the Appellant and the Respondent had agreed to have the debts collected by the Appellant within a time frame of 30 days and that Appellant was to be paid 15% of the collected amounts in the absence of documentary evidence therefore. 2. The Lower Court erred in ignoring or omitting the documentary evidence comprised in a letter dated 26th October, 2005 wherein it is shown that the Respondent did not pay any commission to the Appellant and even the allegation that 15% was paid to the J7 Appellant was false and conflicting as between D. W.l and D. W.2. The Respondent failed to produce receipts or any form of document to support this and that the Appellant was to collect K4.8 million (and not K4.1 million) and that the Appellant commission was pegged at KI.2 million the Lower Court should have found in favour of the Appellant. (See the letter in the Bundle of Documents). 3. The Honourable High Court trial Judge erred in law and fact by not taking into account that the Respondent’s Accountant Aston Chellah Maule, Respondent D. W.l in the Court proceeding he stated that,, my boss did not show me where he had written he had paid him the money. 4. The Honourable High Court trial Judge erred in law and fact by not taking into account that the Respondent’s Accountant Maule breached the contract, in the Court proceeding he stated that I did not tell the Plaintiff about the letter, meaning he wrote the letter without the knowledge of the Appellant (Plaintiff) to terminate the contract indirect. 5. The Honourable High Court trial Judge erred in law and fact by not taking into account that the Respondent’s Managing Director E. W.2 in the Court proceeding he stated that, the sums were quite small for me so I did not mind to write the sums which is false and a big lie, before the Court. 6. The Honourable High Court trial Judge erred in law and fact by not taking into account that the Respondent’s Accountant Aston Chellah Maule D. W.l and the Respondent’s Managing Director D. W.2 both breached the contract. (a) D. W.l in the Court proceeding he stated that I did not tell the Plaintiff about the letter. Meaning the Appellant (Plaintiff) was not notified about the letter of terminating the contract. (b) D. W.2 in the Court proceeding he stated that D. W.l told me he would write a letter to the bank directly to recover the money. D. W.2 was aware of the letter but failed to stop the Respondent’s Accountant Aston Chellah Maule D. W.l to write the letter of terminating the contract indirect. I therefore strongly submit to the Honourable Lordships to dismiss the Court proceedings by Respondent’s D. W.l and D. W.2 with costs. J8 7. The Honourable High Court trial Judge erred in law and fact by­ not considering the evidence to the effect that the evidence of D. W.l and D. W.2 was in conflict. 8. The Lower Court’s omission or failure to consider and evaluate the conflicting evidence of D. W.l and D. W.2 as to payment of commission on the collected amounts of K500,000.00 and K750,000.00 on behalf proved fatal to the Appellant case and was misdirection of the law. 9. The Lower Court erred in referring to the payment of “interest” by either the,Appellant or Respondent. 10. The Court below misdirected itself on the fact that the Appellant was contracted to collect a sum of K4.8 million from Saasa Musanje and not K4.1 million and that the amounts collected were sums of K500,000.00 and K750,000.00 11. The Court under, did not take into account the issue of the letter written by the Respondent to Bank of Zambia without the knowledge of the Appellant and to find the Respondent had thereby breached the agency contract resulting in loss to the Appellant. When the appeal came up for hearing only the Appellant who appeared in person was present while the Respondent was not represented. The Appellant submitted that he would rely on the amended heads of argument and he further said that the Respondent had not filed a response. The Respondent did not attend the appeal hearing. We have considered the evidence on record, the judgment that has been appealed against and the grounds of appeal. In ground one, the Appellant has attacked the trial Court for holding that the parties had agreed that the debt be collected within 30 days and that the Appellant be paid 15%. The evidence on record on behalf of the Defendant has revealed that the parties agreed to have the debts collected within 30 days and that the Appellant be paid 15%. The trial Court’s holding is therefore supported by the evidence. In ground two, the Appellant has attacked the trial Court for omitting the documentary evidence showing that the Appellant was not paid commission. From the evidence on record, it is clear that the Appellant was paid commission on the two amounts of K500,000.00 and K750,000.00 that he collected. The trial Court did not therefore omit any documentary evidence. In ground three, the Appellant has attacked the trial Court for not taking into account the fact that D. W.l stated that his boss did not show him where he had written he had been paid. We do not see the relevance of this ground. There is evidence on record given by D. W.2 that because the amounts were small he did not write. In ground four, the Appellant has attacked the trial Court for not taking into account that D. W.l breached the contract. We have perused the evidence that was adduced by D. W.l we have not found the alleged breach of contract on the part of D. W. 1. In ground five, the Appellant has attacked the trial Court for not taking into account that D. W.2 stated that the sums were quite small so he did not mind to write. We do not see the relevance of this ground. In ground six, the Appellant has attacked the trial Court by not taking into account that D. W.l and D. W.2 breached the contract. We have found no evidence of any contract that was breached which the trial Court failed to take into account. In ground seven, the Appellant has attacked the trial Court by not considering that the evidence of D. W. 1 and D. W.2 was in conflict. We have examined the evidence that was given by D. W.l and D. W.2 we have not found the conflict. In ground eight, the Appellant has attacked the trial Court for failing to evaluate the conflicting evidence of D. W.l and D. W.2 relating to the payment of commission on the collected K500,000.00 and K750,000.00. J10 We have examined the evidence of D. W.l and D. W.2 and we have found no such conflict. D. W.l in his evidence stated that he paid the Appellant the commission. In his evidence D. W.l did not state that he paid commission. In ground nine, the Appellant has attacked the trial Court for referring to the payment of interest. We do not see the relevance of this ground. In ground ten, the Appellant has attacked the trial Court for holding that the Appellant was contracted to collect the sum of K4.8 million from Saasa Musanje and not K4.1 million and that the amounts collected were K500,000.00 and K750,000.00. We do not see the significant of this ground and we do not see how the trial Court misdirected itself. In ground eleven, the Appellant has attacked the trial Court for not taking into account a letter written by the Respondent to the Bank of Zambia. The letter written by D. W.l to the Bank of Zambia was not in issue and D. W.l explained the circumstances under which it was written. We do not see the relevance of this ground. We have not found any merit in all the grounds of Appeal. It follows that we have found no merits in the appeal which is accordingly dismissed. We make no order on costs. I. C. Mambilima, DEPUTY CHIEF JUSTICE L. P. Chibesakunda, SUPREME COURT JUDGE M. E. Wanki, SUPREME COURT JUDGE