Macwani v Industrial Credit Company Ltd (SCZ Appeal 31 of 1999) [1999] ZMSC 92 (15 November 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO 31/99 HOLDEN AT KABWE AND LUSAKA. (Civil Jurisdiction) KELVIN MACWANI AND APPELLANT INDUSTRIAL CREDIT COMPANY LTD RESPONDENT Coram: Ngulube, C. J., Sakala and Muzyamba JJS 11th August and 15th November, 1999. For the Appellant, Mr. Sikatana of Veritas Chambers. For the Respondent, Mr. C. Chonta of Ellis and Company. Sakala JS delivered the Judgment of the Court. J U D G M ENT Case Refered to: 1. DPP VS NG’ANDU [1975] ZR 253. This is an appeal against a judgment of the High Court awarding the appellant KI,470,932.60n representing ten percent commission on the recovery of computers and an award of K22,272 representing one percent commission on repossession of the bus as quantum meruit. On both awards, interest at 20 percent from the date of the writ was awarded with six percent post judgment interest. The brief facts of the case accepted by the trial court were that the appellant was, sometime in 1993, contracted by the respondent on agency basis to recover debts on its behalf at an agreed ten percent commission on every recovery. On several transactions the contract was honoured by both parties except on the two transactions which gave rise to this action. The first of this transaction related to the computers. The circumstances of the computers transaction were that, Standard Chartered Bank Ltd had a leasing division of which the respondent was the Managing Agent. The bank leased a number of computers to KPM Computers. This company fell into arrears which the court accepted amounted to K14,709,326.00. The appellant was instructed by the respondent to repossess these computers. The appellant recovered these computers. The court found that the appellant on the recovery of the computers was : J2 : entitled to his ten percent commission on the arrears of K14,709,326.00 which worked out to be KI,470,932.60. The court rejected the appellant’s claim of K2,522,725 as ten percent commission based on the appellant’s estimated value of the computers at K23 million. The second transaction related to the recovery of the Bus by the appellant. The bank leased a Bus, Registration No. AAH 9278, to Vincent Taxis. Vincent Taxis fell into arrears which the court accepted to have been K2,227,250. The respondent instructed the appellant to repossess the Bus. It was common cause that the appellant repossessed the Bus. He towed the Bus from Vincent Taxis to some point in Lusaka but had difficulties in taking it to its intended destination. The court found that since the Bus was not taken to its intended destination the appellant was not entitled to a full commission of ten percent. According to the trial court the job was partially executed in that the appellant repossessed the Bus. The court awarded the appellant K22,272 representing one percent of the commission. The court rejected the appellant’s claim of the full ten percent commission of the amount of K2,727,250.00 which the respondent had been claiming from Vincent Taxis as arrears. The appellant appealed to this court against the whole judgment. Before delving into the appeal proper, we wish to make certain observations. The first observation is that the actual contract between the parties and its terms under which the appellant was employed is not part of the record. The court proceeded to accept the contract and some of its terms on the basis of the pleadings and the evidence. The second observation is that the plaintiffs claim for ten percent commission was based in relation to the computers on the estimated value of the computers, while in the case of the Bus the claim for ten percent commission was based on the arrears. The third observation is that the court accepted that there was ample evidence that the appellant was employed as a debt collector and that the agreed ten percent commission was to be calculated on the actual debt recovered. These observations are pertinent in determining the whole appeal. These observations clearly support the proposition that : J3 : had the appellant recovered the actual debts as arrears on the computers and the Bus, the ten percent commission would have been calculated on the basis of the outstanding arrears recovered. In arguing this appeal before us, Mr. Sikatana asked the court to treat the memorandum of appeal as heads of argument. In the course of the submissions he abandoned ground two which was that the learned trial judge misdirected himself in fact and law by awarding the appellant commission based on KI4,709,326 as the value of the recovered computers instead of using K23 million as contained in the letter of the General Manager of the respondent. The first ground argued attacked the court’s award of one percent commission for the recovery of the Bus. Counsel submitted that the award of one percent commission when the appellant repossessed the Bus was a misdirection. Counsel contended that the assignment of the appellant was recovery of the arrears but where not possible repossession of the Bus. Counsel submitted that once the appellant repossessed the Bus he was entitled to the full commission. The second ground argued by Mr. Sikatana was that the court misdirected itself by not awarding some general damages for loss of business. He suggested that half of what he was due should have been awarded as general damages. The last ground argued by Mr. Sikatana related to interest. He submitted that the learned trial judge misdirected himself in fact and law by failing to award the claim on interest from November 1993, the date when breach of the contract occurred but instead awarded interest from the date of the summons which was 1st July, 1994. In response to the submissions Mr. Chonta pointed out that in relation to the submissions on interest the date pleaded in the statement of claim is the date of the writ. In responding to the other ground Mr. Chonta pointed out that the arguments by counsel for the appellant relate to findings of fact. He contended that on the authority of DPP VS NG’ANDU(l) this court can not interfere with the : J4 : findings of fact by the lower court. Counsel pointed out that the appellant had abandoned the Bus thereby risking it to theft. He urged the court not to interfere with the findings of fact. He supported the award of one percent commission on the recovery of the Bus. In relation to the claim for damages for breach of contract, counsel submitted that there was no evidence adduced to establish the damages suffered. We have considered the evidence and the pleadings on record as well as the judgment of the trial court and the submissions by both learned counsel. Despite the absence of the actual contract that existed between the parties, our understanding of the findings on the evidence on record as per our earlier observations is that the arrangement was for the appellant to recover debts due to the respondent under the lease agreement to their respective clients. Where this was not possible the appellant was to repossess the items in question. We are satisfied that whether the appellant recovered the arrears or the actual item; in this case the computers and the bus, his entitlement was ten percent commission of the arrears and not the value of the computers or the bus. The arrears on the computers were accepted to be K14,709,326. The award of KI,470,932.60 representing ten percent commission cannot be faulted. As regards the recovery of the bus it was common cause that the arrears stood at K2,522,725.00. This is the sum the appellant had to recover. He did not recover this sum but instead repossessed the Bus. If he had recovered the arrears he would have been entitled to ten percent commission of that sum. In terms of the agreement, we are satisfied that having repossessed the Bus, he should have been entitled to his full ten percent commission on the arrears on the Bus. The issue of whether the Bus was delivered to its intended destination was totally irrelevant. But had the respondent established the cost of towing the Bus from where it was abandoned, they would perhaps have been entitled to reduce that cost from what the appellant would have been entitled. The award of one percent commission for repossessing the Bus was therefore a misdirection. It is set aside. We award ten percent commission on : 15: repossession of the Bus. This works out to be K222,725. On damages for breach of contract we agree with Mr. Chonta that the appellant did not prove these damages. The effective date of interest awarded was as pleaded. We see no justitifation for criticising the trial court. This appeal has succeeded on one ground but has failed on the other grounds. The appeal is allowed to that extent. But we make no order as to costs. M. M.. S. W. Nguiube, CHIEF JUSTICE. E. L. Sakala, SUPREME COURT . JUDGE. W. M. Muzyamba, SUPREME COURT JUDGE. IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 45 OF 1998 HOUEN AT LUSAKA NGOSTINO KUNDA and THE PEOPLE CORAM: BWEUPE DCJ., CHAILA, MUZYAMBA JJS On Sth September, 1999 and 2nd November, 1999 For the Appellant - Mr. CHIRANBO, Acting Director, Legal Aid For the Respondent - Mr. OKAFOR, Principal State Advocate. JUDGMENT BWEUPE DCJ. delivered the judgment of the court. The Appellant was convicted of aggravated robbery contrary to Sec­ tion 294 subsection 2 of the Penal Oode. The particulars of the case were that o 30th December, 1996 at Ndola, the accused, jointly and whilst acting together with unknown person, did rob Lillian BWANGA of a radio cassette and K13,250 cash, altogether valued at KI53,250 and that violence was used or threatened to be use used in order to obtain the said property Instead of sentencing the accused to death, he was sentenced to life imprisonment for reasons which are not supported by law. The evidence was that on the 30th December, 1996 at about 2135 hours, PW 1 was selling some beers in Buntungwa Tarven when two men en­ tered. One of the sen was armed with a gun. The unarmed man is alleged to have searched PW 1 and got all the money she had and a radio cassette. PW 1 said she was able to know the man who searched her because the til- ley lamp was on and she had a closer look at the accused and also because the incident is said to have taken long. The accused was identified as - J2 - the man who did the searching of PW 1 and who stole the radio cassette. Sne added that the other man pointed a gun at her as the accuse searched her and stole some more money from her. An identification parade was conducted at which PW 1 identified the accused as one of the men who robbed her. The accused is said, by PH 2, not to have complained of anything with regard to the identification parade. There was no cross examination of PW 2. PW 3 also investigated the case and apprehended the accused. PW 3 is said to have witnessed PW 1 identify the accused after which he arrested the accused for the subject offence. This witness was also not cross examined. The accused said that on the material day he was either at the farm or at his house. Mr. CHIRAM0O argued one ground. Be said this was a case of a single identifying witness, PW 1. The incident took place at night and PW 1 never knew the accused before. He also said the court did not consider the accused's alibi. Mr. OKAFOR on the other hand said there was a tilley lamp and the robbery took two hours. The question of mistaken identity should be ruled out. Mr. OKAFOR did not, however, support the conviction on aggravated robbery contrary to S. 294 subsection 2. He said the evi­ dence on record did not prove the question of the gun. We have given this case our anxious consideration, lie agree with the learned Principal State Advocate, Mr. OKAFOR, that the question of the gun was not proved. However, we are of the view that as there was a til- ley lamp in the tarven and the incident took some time and PW 1 had a closer look at the accused; the question of mistaken identity would not arise. The accused was properly identified by PW 1, PW 2 and PW 3 who attended the identification parade and were not cross examined which means that the identification of the accused would not be put in question at - J3 - this late hour. We are satisfied that this case of ordinary aggravated robbery was proved beyond reasonable doubt. Since there was no evidence of the use of the gun, we acquit the accused on conviction of aggravated robbery contrary to Section 294 sub-section 2 of the Penal Code and in­ stead we convict the Appellant of aggravated robbery contrary to Section 294 sub-section 1 of the Penal Code. We will sentence the Appellant to 15 years iaprisonnent with hard labour froa the date of arrest. We have one short coament to aake» When the Appellant was convic­ ted of aggravated robbery contrary to Section 294 sub-section 2, be should, in our view, have been sentenced to death. He was sentenced to life iaprisonaent on the ground that the property stolen was ainiaal. That, in our view, is not the law. Had we not convicted the Appellant of Section 294, sub-section 1, we were going to rectify the law and sentence the accused to death. B. K. Bweupe DEPUTY CHIEF JUSTICE M. S. Chaila SUPREME COURT JUDGE N. M. Buzyaaba SUPREME COURT JUDGE