Jackson Mwambazi (Trading as Kabeat Enterprise Food Suppliers) v The Attorney General (2013/HP/1875) [2021] ZMHC 121 (16 September 2021)

' V ' ,-,A r:' .1.. - \ . IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2013/HP/1875 JACKSON MWAMBAZI(Tradin Kabeat Enterprise Food Supplieu~ ....._ ~7"e~~~ PLAINTIFF AND THE ATTORNEY GENERAL DEFENDANT Delivered in open Court bij ~ Hon. Mr. Justice Mathew L. Zulu, at Lusaka the .. t .... clay of September, 2021 For the Plaintiff For the d ef endants: Ms. M. Banda with Mr. C. B. Bwalya, Messrs. KBF & Partners Col. M. Namwawa with Lt. A. S. Tembo, State Advocates JUDGMENT Cases referred to: 1. Victor Koni v. Attorney General(1990)S. J(SC) 2 . Florence Munthali v. Attorney General(1980) Z. R. 157(H. C) 3. Zambia Consolidated Copper Mines Ltd v . Goodward Enterprises Ltd( Appeal No. 89 of 1999) 4. Zulu v. Avondale Housing Project Ltd(1982) Z. R. 172 5 . United Bus Company of Zambia v. Jarisa Shanzi(1977) Z. R. 397 6. Kajimanga v. Chilemya( Appeal No. 50 of 2014) 7. Base Chemicals v. Zambia Airforce (SCZ Judgment No. 9 of 2011) J1 • Introduction This is the Plaintiffs claim for money owed for the supply of stationery to the Ministry of Defence Pleadings The Plaintiff commenced this action against Defendant on 17th December, 2013. The suit was by writ of summons accompanied by a statement of claim. The Plaintiff seeks the following reliefs: l. The sum of K708, 452.81 (Seven Hundred and Eight Thousand, Four Hundred and Fifty-Two Kwacha, Eighty One Ngwee) being the amount owed to the Plaintiff by the defendant for the supply of stationary to the Ministry of Defence between the period 2000 to 2001 and other expenses incurred(sic) ; 2. Loss of money the Plaintiff would have earned as a result of the supply of stationary(s ic); 3. Loss of business as a result of the prosecution; 4. Any other relief the Court may deem fit; 5. Interest at the current lending rates; and J2 6. Costs. In his statement of claim, the Plaintiff states that he is registered with the government to supply food . Between 2000 and 2001 , he received five orders via phone from the Defendant to provide stationery. The Plaintiff prepared an invoice, and the Defendant generated a Local Purchase Order(LPO) on the delivery of goods. The details of the five orders are as follows: Orde r Date of Orde r Date of Invoice Amount Local Purchase Order Numbe r Numbe r 2 4 -/ 01 / 2000 0 8/ 01 / 2000 K40 ,715 1679 10 AB -/ 0 5 /2000 - K75 ,930 149 952 AB -/ 08 /2000 08 / 08 / 2000 K50,415 14996 66 AB -/ 01 / 2001 - K50 ,415 149 966 AB -/ 11 / 2001 18/ 11 / 01 K66,29 5 165323 AB The Plaintiff states that he prepared invoices in the name of Kabeat Enterprises Food Suppliers, and the late Sergent Rogers Tembo received the stationery on behalf of the Defendant. The Plaintiff made several visits to the Defendant's offices to collect payment for the goods supplied, but the Zambia Army informed him that they J3 had no money. In the letters of 14th December, 2000, 14th September, 2001, and 12th January, 2002, from the late Col. Maleki to the Permanent Secretary Ministry of Defence, the former confirmed to the latter that the Defendant owed the Plaintiff money. Consequently, the Plaintiff was included on a list of suppliers submitted to the Ministry of Finance and National Planning for payment. The Plaintiff states that before he received payment in the total sum of K253, 770, he was arrested and prosecuted by the Defendant. The Court acquitted him on 17t h September, 2010. The Plaintiffs advocates wrote to the Defendant to demand the sum of K253, 770, but the Defendant has refused or neglected to pay the Plaintiff the money owed. The Defence The Defendant filed into court its defence on 20th October, 2020, after being granted leave to file its defence and bundle of documents out of time. The Defendant states that orders for supplies are made through the proper channels and in writing. It asserts that it does not issue LPOs after delivery as they are the initiating documents. J4 The Defendant disputes that the Plaintiff supplied the Zambia Army the goods alleged and further states that it has no record of the Plaintiff having done so. The Defendant states that to be recognized as a genuine supplier, one must r egister with the Ministry of Defence. It, therefore, puts the Plaintiff to strict proof of his allegation that his business was a registered supplier. The Defendant denies that the Plaintiff is entitled to the reliefs sought and puts him to rigorous evidence. Evidence at Trial The Plaintiffs case Simon Jackson Mwambazi was the sole witness, and he gave evidence as PW 1. PW 1 testified that in 2000, he received a call from the Quarter Master, Col Maleki, to supply stationery. PWl delivered the stationery and issued an invoice to the Quarter Master, who generated an LPO. The clerk at the Defendant Ministry signed received on the invoice and LPO. PW 1 testified that he received three orders for stationery in 2000 and two orders in January and November, 200 l. The orders were all performed and supported by signed LPOs and invoices. PW 1 testified that Col Maleki also JS confirmed that the Defendant owed the Plaintiff money. PWl told the Court that the Defendant has only paid him K30, 000. He testified that in 2004, he was arrested and prosecuted for attempting to obtain money by false pretense for the stationery supplied to the Ministry of Defence. The court acquitted PWl in 2010. PWl followed up on the payment but to no avail. PW2 testified that his business is on the list of suppliers owed by the Government compiled by the Ministry of Finance. He claims the reliefs sought in his writ of summons. Under cross-examination, PWl confirmed that the procurement procedure in the Army was different at the time of trial from the material date. He confirmed that in 2000, Col Maleki called him and gave him an order to supply stationery. When he provided the stationery, the receiving officer issued him with an LPO. He confirmed that the LPO was generated at the point of delivery to initiate payment of goods received. PW 1 confirmed that the LPOs did not indicate the stationery he supplied, but the invoices did. He confirmed that the delivery notes remained with the Defendant. PWl maintained that he received a part payment and the J6 confirmation letters showed what he delivered. PW 1 confirmed that the amounts claimed were arrived at by calculating the amount on the five purchase orders with interest and legal fees. PWl confirmed that he was a registered supplier with the Ministry of Defence, but he did not have the document the Ministry issues for registered suppliers. He confirmed that he was not aware that orders above KSO, 000.00 were supposed to go through tender procedures, and after that, a contract signed with the Army. This marked the close of the Plaintiffs case. Col Maggie Nakamba was the Defendant's sole witness, and she testified as DW 1. She told the court that she was the Director of Ordinance at Army Headquarters, Arakan Barracks. The Directorate is responsible for procurement and supply for all stores. DW 1 testified that when one of the departments needs supplies, the Directorate requests a minimum of three quotations from its registered suppliers (suppliers approved by the Ministry of Defence). They then select the one that meets their specifications. The Directorate issues an LPO to the chosen supplier. On delivery, the J7 rece1v1ng entity will check to ensure the goods meet the requirements and quantities in the LPO. The entity will receive the goods and request the supplier for an invoice and a delivery note to prove delivery. The entity will raise a receipt voucher, and a document called the Bill( this consists of the original copy of the LPO , Invoice, delivery note, and receipt voucher). The entity then sends the Bill to the Directorate. The latter is responsible for forwarding the Bill with an accompanying cover letter to Finance for payment once satisfied with the correctness of the information. DW 1 testified that the Defendant gave the supplier copies of the Bill. DW 1 testified that when they raise an LPO , they itemize the goods they are ordering, the quantity, description, price for each item, the total amount. She explained that the narration in the LPO's produced by the Plaintiff could only appear on the payment voucher and that it was difficult to know what the Army was ordering. DWl testified that only the Directorate is authorised to stamp LPOs and not the entity appearing in the Plaintiffs LPOs. She testified that J8 the Ministry of Finance could not pay a supplier without original copies of the Bill. When cross-examined, DWI confirmed that the pro forma invoice on page 20 of the Plaintiffs bundle of documents explained the items the Plaintiff was supplying on the LPO on page 19. She confirmed that the LPOs produced by the Plaintiff were government documents. DW 1 confirmed that the Defendant stores LPOs in a booklet and that she did not produce the LPOs for 2000 to check if the serial numbers matched. DW 1 accepted that the signature of the receiving officer on the Plaintiffs LPOs symbolized the receipt of goods. She also admitted that Col Meleki had at some point worked for the Army but no longer did. She confirmed that she did not know whether Col Meleki was authorised to sign LPOs. DWl confirmed that only commissioned officers at the Ordinance were allowed to sign LPOs. She also confirmed that she could not tell whether the clerk who signed the LPOs was commissioned but maintained that clerks were not commissioned officers. It was DW 1 's testimony that the issuing officer and the approving officer must be different. She testified that the signature of the issuing J9 officer and the approving officer on the Plaintiffs LPOs were different. DWI confirmed that she did not know if the Plaintiff was a registered supplier. She confirmed that the LPOs produced by the Plaintiff were duplicates. DWI confirmed that the Plaintiff received a part payment on LPO 149952AB on the Payment Advice on page 4 of the Plaintiffs supplementary bundle of documents. She further confirmed that she had never dealt with the Plaintiff. In re-examination, DWI clarified that the Army did not generate the LPO on page 19 of the Plaintiffs bundle of documents because the issuing entity should have been the Directorate, not Q Branch. Written submissions The Plaintiffs Submissions The Plaintiff submits that he had a contract with the Defendant, which was partly oral based on the call from Mr. Meleki, partly in writing based on the LPOs, and implied as there was evidence that he supplied goods to the Defendant but they did not pay him in full. JlO It is contended that the Defendant failed to impugn the LPOs because it did not produce the LPO book for the material period, which would have shown whether the serial numbers on the Plaintiffs LPOs appeared in the book. The Plaintiff submits that h e performed the contract, evidenced by the signatures on the LPOs that confirm receipt of the goods, the part payment, and the letters confirming the d ebt. The Plaintiff submits that under section 27 of the Sale of Goods Act, the Defendant had an obligation to pay the Plaintiff but failed to pay the amount due upon delivery of the goods. Counsel contends that according to s ection 38 of the Sale of Goods Act, the duty to d eliver and pay are concurrent. The Plaintiff argued that the procurement procedure is a concern of the procurement department and not the supplier. Counsel advanced that the Defendant has failed to produce documents to prove the procurement procedure from 2000 to 2001 and that DWI was not comp etent to testify on the procedure during this p eriod as she was not there at the time. On the deficiency in d etails of the LPO's produced by the Plaintiff, Counsel contends that the Plaintiff listed the goods supplied in the Jll 1nvo1ces referred to in the LPO. Also, the Defendant could not confirm whether the signatories on the Plaintiffs LPOs were authorised. Therefore, the court should accept the evidence as the Defen dant did not seriously challenge it as held in Victor Koni v . The Attorney General 1 ; and Florence Munthali v . The Attorney General2 . Regarding the need for the Plaintiff to be a registered supplier, Counsel contended that the contract was independent of the registration as found by the Supreme Court 1n Zambia Consolidated Copper Mines Limited v . Goodward Enterprise Limited3 . The Plaintiff claims that h ad he been paid, he would have used the money to supply stationery. He, therefore, claims loss of use of the funds. He also claims loss of business because of the prosecution and loss of business opportunities. The Defendant's submissions The gist of the Defendant 's submissions is that there was no contract of sale of goods between the Plaintiff and the Defendant. J12 The Defendant argued that the Plaintiff failed to prove that he delivered goods to the Defendant by producing delivery notes. Consequently, the Plaintiff is 1;1-ot entitled to any payment under sections 27 and 28 of the Sale of Goods Act. Counsel contends that the Defendant would only pay a supplier who presented the correct documents and followed the proper procedure. However, Counsel argued that the Plaintiff produced irregular LPOs and confirmation letters. The Defendant asserts that LPOs are irregular because they are stamped by the Chief Clerk Q Branch and not Ordinance Directorate. The issuing and receiving officers are the same, and the LPOs do not describe the goods supplied. Lastly, the Defendant contends that the amounts in the LPOs exceed the threshold amount for a single supply. The Defendant contends that the Plaintiff failed to show that he is a genuine supplier r egistered with the Defendant. Therefore, the Plaintiff cannot rely on the case of Zambia Consolidated Copper Mines v. Goodward Enterprises3 . Thus, the Plaintiff failed to discharge the burden of proof as espoused in Wilson Masauso v. Avondale Housing Project Limited4 . J13 Lastly, the Defendant went to great length to counter the claim for K708,452.81. Counsel contends that the Plaintiff did not produce evidence to support the calculations. The Defendant argues that interest against the State is capped at 6%, and the Plaintiff was wrong to apply interest at various lending rates. The Defendant contends that the Plaintiff applied interest from October, 2000 when he commenced the matter in 2013, contrary to section 2 of the Judgments Act and Order 38 rule 6 of the High Court Rules. Counsel contends that the Plaintiff can only be awarded interest under section 4 of the Law Reform Miscellaneous Provisions Act after delivery of Judgment. The Defendant adverted to the case of United Bus Company of Zambia v. Jarisa Shanzi5 • Consideration of the case I have considered the pleadings, the bundles of documents, the oral testimony of the parties, and the written arguments by Counsel. The Issue(s) J14 1. Whether the Plaintiff trading as Kabeat Enterprises supplied the Defendant with stationery thereby entitling him to payment. The Law and Analysis of the Facts The general principle of evidence is that he who alleges must prove . The Supreme Court espoused this principle in the case of Zulu v. Avondale Housing Project Ltd1in the following passage: ... I think that it is accepted that where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed any other case where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to Judgment, whatever may be said of the opponent's case ... The Plaintiff bears the burden to prove tha t he supplied stationery to the Defendant. I must point out that there is conflicting evidence from the Plaintiff and the Defendant on this issue. The Plaintiff has produced LPOs and confirmation letters to prove that he supplied the Defendant with stationery. The Defendant, however , contends that the LPOs produced were not generated by the Defendant. The way I see it, the Defendant is challenging the a uthenticity of the JlS Plaintiffs documents. The first issue I shall deal with is whether the Defendant generated the LPOs produced by the Plaintiff. This challenge is a classic example of the problem that arises when the parties n eglect to conduct discovery and inspection of documents, at which stage objections to documents could have been raised. In Kajimanga v. Chilemya6 , the Supreme Court pointed out the importance of discovery and inspection of documents. They guided that parties must raise objections to documents during discovery and inspection of documents or at any time before the close of trial. The efficacy of timely applications is to allow the other party to respond to the objection and, if possible, to make the necessary application. The Defendant questioned the authenticity of the LPOs during the defence case. The questions put to the Plaintiff concerning the LPOs concerned the failure to disclose the goods supplied and not that the Defendant did not generate those documents. In the circumstances, I find that although the Defendant challenged the authenticity of the documents during trial, the challenge was raised somewhat belatedly and did not allow the Plaintiff to possibly J16 call if any, evidence to show that these documents originated from the Defendant. Further and in any event, as the Defendant was making a positive assertion that the LPOs produced by the Plaintiff did not originate from it, it bore the evidential burden to prove this. DW 1 confirmed that the Defendant stores LPOs in a booklet. However, she did not produce the LPOs for 2000 to check if the serial numbers matched the Plaintiffs LPOs. I, therefore, reject the objection that the documents did not originate from the Defendant. The next issue is whether the LPOs were properly issued by the Defendant. The Defendant contends that the Plaintiffs LPOs were defective in form because, firstly, they do not have details of the goods or services rendered, the quantities, and price. Secondly, the LPOs were not issued and stamped by the Ordinance Directorate, the only entity in the Army mandated to procure goods. Thirdly, only commissioned officers could issue LPOs and not a clerk. I have considered the LPOs produced by the Plaintiff; they are stamped as having been issued by the Army Headquarters Q Branch. The LPOs were issued by the Chief Clerk and approved by Col Meleki. DW 1 J17 testified that only the Ordinance Directorate could stamp LPOs. She also testified that a clerk is not a commissioned officer and cannot stamp a document as an issuing officer. PWl confirmed that the LPOs did not specify the goods he supplied. Indeed, the LPOs show the requirement to specify, among others, the items ordered, the quantity, price, and amount. A comparison of the LPOs produced by the Plaintiff and those by the Defendant show that the latter were issued by the Ordinance Directorate while the former were issued by Q Branch Headquarters. However , both PW 1 and DW 1 confirmed that LPOs are prepared and issued by the Defendant. Therefore, I find that the Plaintiff could not be concerned with the Defendant's internal procedures on issuing LPOs. The Plaintiff could further not be responsible for any deficiencies, having found that the Defendant issued the LPOs. In any event, since the challenge on the proper procedure and office for issuing LPOs was advanced by the Defendant, they had the onus to adduce evidence to support this assertion. There was, however, no document to support DWl 's testimony in this regard. Therefore, I cannot hold the Plaintiff accountable for any a lleged J18 irregularity or deficiency on the proper issuing office and officers. Also, DW 1 did not dispute that Col Meleki worked for the Army, and she could not confirm whether he was a commissioned officer. The Defendant argued that the signature of the issuing officer and the receiving officer in the LPOs produced by the Plaintiff was the same. However, a perusal of the LPOs confirms that the issuing officer and the receiving officer were different. I accordingly reject the Defendant's argument that the Plaintiffs LPOs were not properly issued. I will now determine whether the Plaintiff has established that it delivered stationery to the Defendant. During trial, PW 1 maintained that the LPOs confirmed the delivery of goods. He also confirmed that he issued delivery notes to the defendant, but h e had not produced them before the Court. DW 1 testified that the LPOs were the actual order, and they showed the goods ordered. I have looked at the LPOs produced by the Plaintiff and the Defendant. I agree with the Defendant that the LPOs should have shown what goods the Defendant was ordering. However, the issue does not end h ere. J19 Even if the Plaintiff d id not produce delivery notes which would conclusively show that he delivered the stationery to the Defendant, a perusal of the LPOs indicates otherwise. The clerk at the Army confirmed receipt of the goods supplied. DWl conceded that the signature confirmed that the goods had been delivered. Further, even if the LPOs did not show the goods supplied, quantity, and prices, each LPOs makes references to an invoice. A perusal of invoice 51 shows the goods provided under LPO 165323AB, invoice 240 under LPO 165424 AB, and invoice 241 under LPO 167910 AB. The Defendant stamped these invoices. Further, the Plaintiff has produced confirmation letters from Col Meleki to the Permanent Secretary confirming that the Defendant owed him the equivalent of the five LPOs. The Defendant did not strongly challenge the confirmation letters. DWl also confirmed that the Plaintiff received a payment of K30, 000,000.00 under LPO 149952AB. I am, therefore, satisfied that the Plaintiff has, on a balance of probabilities, proved that he delivered stationery to the Defendant under five LPOs in the total sum of K253,770. J20 I will now deal with the issue of registration of suppliers with the Ministry of Defence. In his statement of claim, The Plaintiff has stated that he was a food supplier registered with the Government. However, the Defendant disputes this fact. The latter contends that a supplier had to register with the Ministry of Defence to be recognized as genuine. It is undisputed that there was a requirement for the Plaintiff to register with the Defendant to supply goods. The Plaintiff and not the Defendant bore the burden to prove that he was a registered supplier. PW 1 confirmed that he did not have the document the Ministry of Defence issues to registered suppliers. The Plaintiff, therefore, failed to discharge the burden of proof. The next question is, what is the effect of non-registration? From the evidence before me, DW 1 testified that registration of a supplier conferred on the supplier recognition that they were a genuine supplier. On the facts before me , I have found that the Plaintiff did supply stationery to the Defendant. I find that the failure by the Plaintiff to show that he was a registered supplier does not relieve the Defendant of its obligation to pay for the goods supplied. My finding is irrespective of whether there was a binding J21 and enforceable contract of sale or not. I am fortified by the case of Base Chemicals v. Zambia Airforce 7 . In this case, the Supreme Court found a valid contract existed between the plaintiff and the defendant. However, they observed that even if there was no contract between the parties, the Plaintiff would have been entitled to recover on a quantum meruit basis because there was evidence that the plaintiff carried out the works on the defendant's instruction. Lastly, the Defendant has submitted that the amounts of goods supplied by the Plaintiff under the LPOs exceeded the amount allowed under a single supply. The Defendant appears to argue that the orders should have been subjected to the tender procedure. The Defendant had raised this issue during the evidence of DW 1. I sustained the objection because the Defendant did not plead the issue. Having already ruled on the issue, I accordingly dismiss the argument. Conclusion and orders J22 On the totality of the evidence, I find that the Plaintiff has, on a balance of probabilities, established that he supplied stationery to the Defendant. I note that the Plaintiff is claiming K708, 452.81. This amount includes interest, costs, and other expenses. The Plaintiff has, however, not shown how he arrived at this amount. The Plaintiff has, however, established that the Defendant owes him K253,770.00 for the stationery supplied. In the circumstances, I accordingly enter Judgment 1n favour of the Plaintiff for K253,770.00. This sum will carry interest at the average of the short-term deposit rate from the date of writ to the date of Judgment. Thereafter, the amount will carry interest at 6 per centum per annum until complete payment. I award the Plaintiff costs of this action which are to be taxed in default of agreement. Leave to appeal is granted. . Jt+- Dehvered at Lusaka the .......... day of September, 2021 MATHEW. L. ZULU HIGH COURT JUDGE J23