Livio Moresi v Kunzle and Anor (Appeal 153 of 2002) [2003] ZMSC 108 (2 December 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 153 OF 2002 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LIVIO MORESI APPELLANT AND ALFRED KUNZLE THE ATTORNEY-GENERAL CORAM: Chinva, Mambilima and Silomba, JJS. 1st respondent 2nd respondent On 5th December, 2002 and 2nd December, 2003. For the Appellant: Mr. A. G. Twumasi, of Kitwe Chambers For the lsl Respondent: Mr. K. Mbindu, of Jacques and Partners For the 2nd Respondent: Not Present JUD GM ENT Silomba, JS, delivered the Judgment of the Court. Case referred to:- 1. Kearney and Company Limited -Vs- Agip (Zambia) Limited and Ashalt and Tarmac Limited (1985) ZR, 7. J2 Legislation referred to:- 2. Customs and Excise Act, Chapter 322, Section 30. This is an appeal against the judgment of the learned trial Judge of the High Court sitting at Kitwe. By a writ of summons the appellant, who was the plaintiff in the court below, prayed for several orders, including a declaration that the motor vehicle, a Land Rover Discovery, Registration No. AAR 5390, was his property; an order that the said motor vehicle be released to him; an order for the preservation of the said motor vehicle and damages against the 1st and 2nd Respondents for the unlawful detention of the said motor vehicle. The case for the appellant and which he put before the lower court, was that he bought the motor vehicle now with Zambian registration No. / AAR 5390, a land rover discovery', in May 1997 in Switzerland from Emil Frey at 47,000 Swiss Francs. The person from whom he purchased the vehicle issued him with a service book in which his name was endorsed. Besides, he had a security code for the vehicle. With these documents, he proceeded to register the vehicle in Switzerland. For a while, he drove the vehicle in that country' before it was shipped to Lusaka. The appellant had all the original documents relating to the purchase of the vehicle, its shipment and customs, which were witnessed by a notary public in Switzerland. The documents, which were produced to the court below, by way of notice to produce, were insurance cover and confirmation licence issued from Zurich Canton Road Traffic Office in the name of the appellant. The blue book issued in Switzerland in the name of the appellant showed the registration number of the disputed land rover, (Zambian registration No. J3 AAR 5390) as No. 2H 73683, Chassis No. SALL IGM8 TA 700046. The appellant shipped the disputed motor vehicle to Zambia as his private car foi his own use while in Zambia. The vehicle was shipped in his name. The shipment was consigned to Makumbe Limited in Lusaka, with whom he had a work agreement as a Mechanic. The evidence of the appellant was that when the vehicle arrived in Lusaka, the 1st respondent went and removed it from Customs and registered it in the name of Tukongote Mining Limited; that when the appellant arrived in the country the Lsl respondent sent him to Tukongote Mining Limited where he worked for 4 months. While there, he came to know that the owners of Tukongote Mining Limited were Munde and Mubita. As far as the appellant was concerned, he had nothing to do with Tukongote Mining Limited. After 4 months the 1st respondent terminated the work agreement of the appellant with Tukongote Mining Limited. On leaving the company, the appellant took with him the said vehicle. He did not stay long with the vehicle because police and immigration officers came and retrieved it from him and took it to Customs and Excise. Later, the 1st respondent claimed the vehicle as his and the appellant was arrested by Zambia police. When the appellant was cross-examined he said that he was the one who imported the vehicle into Zambia but did not know where the import documents were. He said he was in Zambia on a temporal permit and that was why he did not need an import licence to import the vehicle into Zambia. The counter-evidence of the 1st respondent before the lower court was that, he knew the appellant when he was working for his father in Switzerland in the early 1990s. The appellant was involved in the car recovery service company owned by the father of the 1st respondent as J4 majority shareholder. The vehicle that was used in the car recovery service was the same disputed Land Rover Discovery, Registration No. AAR 5390. When the appellant decided to come to Zambia the car recovery service company was dissolved and all the equipment that belonged to the company was sold except the disputed vehicle. While in Switzerland, the appellant suggested to the father of the 1st respondent to export the disputed vehicle to Zambia to assist in the running of the mine. The lsl respondent’s father had no objection because he was hopeful that if the appellant and respondent worked together well, his son (1st respondent) would be in a position to repay the investment he (the father) had put in the mine. When the 1M respondent set off for Zambia the appellant remained in Switzerland to arrange for the shipment of the vehicle in a container to Zambia. The motor vehicle was finally shipped to Zambia under a rebate granted to Tukongote Mining Limited, a subsidiary of Makumbe Limited. The rebate was facilitated by the Mines Development Department of the Ministry of Mines and Mineral Development. The vehicle was subsequently registered in the name of Tukongote Mining Limited to which a red book was issued because duty and VAT were not paid. According to the 1st respondent, since the vehicle was imported under the Mines and Minerals Act, where no duty and VAT were paid, it was not transferable. As far as he was concerned, the 'appellant was not the owner of the motor vehicle since he had contributed nothing to its purchase. With reference to the confinnation licence issued by the Zurich Canton Road Traffic Office in respect of the vehicle, the evidence of the 1st respondent was that he did not doubt its validity. According to him the Zurich Canton Road Traffic Office is the institution that issues number J5 plates. Once the licence is issued the holder is shown as the registered keeper and in this case the vehicle was registered in the name of the appellant. However, the registration at the Zurich Canton Road Traffic Office did not mean that the appellant was the owner of the motor vehicle. According to the 1st respondent the appellant was only registered as keeper. The evidence of the 2nd respondent, given by a police officer, was that a report of theft of a Land Rover Discovery, Registration No. AAR 5390, was made to the police by the 1st respondent, the Director of Tukongote Mining Limited, on the 1st of April, 1999. The vehicle was reportedly stolen by the appellant. On the 4th of April, 1999 the witness, in the company of other police officers and the 1st respondent, retrieved the vehicle from a Chingola Garage and brought it back to Kitwe Central police station. Later, the appellant was summoned to the police where he also claimed the vehicle to be his. However, his claim was not backed by documentary evidence. On the other hand, the l'sl respondent had all the documentary evidence that the vehicle belonged to Tukongote Mining Limited. Besides, there was a fax from Bruno Kunzle, the father of the 1st respondent, confinning that the vehicle was his and that his son had the right to claim it. With this evidence, the police decided to handover the vehicle to Tukongote Mining Limited. At the close of the trial the issue that arose and which the learned trial Judge tasked himself to resolve was, whether or not the appellant had, on a balance of probability, proved that the motor vehicle, a Land Rover Discovery, Registration No. AAR 5390, was his. The learned trial Judge first considered the evidence in relation to the ownership of the same vehicle while in Switzerland and came to the conclusion that it was owned by the 1st respondents’ father; that the same vehicle was being used by the appellant in J6 running a vehicle recovery service, which was owned by the 1 respondents father as majority shareholder. The learned trial Judge found that there was no dispute as to the ownership of the vehicle in Zambia; that the vehicle was imported into the country by Tukongote Mining Limited, which applied for exemption from paying duty and VAT; that the exemption was granted by the Mines Development Department and a red book was issued to Tukongote Mining Limited, as owner of the vehicle. The learned trial Judge posed the question that if the vehicle was exported to Zambia by the appellant for Ins private use why did he not raise a query when he discovered that it was registered in somebody’s else name, that is, Tukongote Mining Limited? The learned trial Judge further found that according to evidence the appellant did not pay duty and VAT for the vehicle. There were no attempts by the appellant to pay upon discovering that duty and VAT had not been paid. As the appellant was very much aware that he was coming to Zambia not as an investor but as a mere Mechanic, he ought to have known that he was not exempt from paying duty and VAT, the learned trial Judge concluded. On the current status of the vehicle, the learned trial Judge emphatically stated that it was legally the property of Tukongote Mining Limited, which had a red book. On the basis of the facts of this case, the learned trial Judge distinguished the case of Kearney and Company Limited -Vs- Agip (Zambia) Limited (1) in which we said that a blue book is not evidence of ownership of a motor vehicle. He took the view that the facts of this case, when considered in their totality, support the finding that Tukongote Mining Limited, are the owners of the vehicle. On the role played by the 2 respondent, the learned trial Judge found no wrong-doina J7 on the part of the police officers in impounding the vehicle after a complaint had been made to them. Following his findings, the learned trial Judge dismissed the appellants’ claims against both the 1st and 2nd respondents, hence this appeal. The appellant has advanced four grounds of appeal, and has also filed heads of argument through Counsel. At the outset, Counsel for the appellant indicated to the court that he intended to argue grounds 1 and 3 as one. Grounds 2 and 4 were also to be argued as one. Grounds 1 and 3 read as follows:- 1. That the Honourable trial court erred in law and in fact in holding that the said motor vehicle belongs to Tukongote Mining Limited when there was clear evidence that Tukongote Mining Limited denied or disclaimed ownership for the said motor vehicle. 3. That the Honourable trial court erred in law and in fact in not considering all the evidence of payment by the appellant for the said motor vehicle. In support of the two grounds, Counsel for the appellant referred us to page 219, lines 20 and 21, of the record of appeal and submitted that the evidence of the 1st respondent thereat was to the effect that both Tukongote Mining Limited and Makumbe Limited did not have any receipts to show that they purchased the motor vehicle. Further, that at pages 61 and 64 Tukongote Mining Limited indicated that they had no claim over the vehicle. The appellant did not dispute the fact that the vehicle was imported by Tukongote Mining Limited and cleared by the 1st respondent. However, Counsel drew our attention to page 49 of the record relating to the import declaration form of the Zambia Revenue Authority, which showed the importer as Tukongote Mining Limited and the seller as Maeder Aircraft J8 Tire Company Limited. As against this evidence, Counsel referred us to the affidavit in opposition of the 1st respondent at page 42, paragraph 3(a) of the record at which, the deponent stated that the motor vehicle was owned by his father. He submitted further that the evidence of the 1st respondent was to the effect that, the vehicle was owned by the vehicle recovery service in Switzerland, a company owned by his father. To that extent he also submitted that even though the vehicle was imported by Tukongote Mining Limited, there was conflicting evidence as to who the owner was. Counsel stated that according to the appellant’s evidence he was the owner of the vehicle, which he sent to Zambia under Makumbe Limited. In response to the submission of the appellant’s Counsel, respecting grounds 1 and 3, the Counsel for the 1st respondent simply relied on his heads of argument. With regard to the assertion that the Ist respondent had disclaimed ownership of the disputed vehicle by Tukongote Mining Limited, Counsel contended in his heads of argument that such an assertion was not supported by the evidence before the lower court. We were referred to page 219 of the record of appeal, where the 1st respondent testified in chief that he was the majority shareholder of Tukongote Mining Limited and also Chairman and Chief Executive. As majority shareholder and Chief Executive, the 1st respondent never testified that Tukongote Mining Limited had disclaimed ownership of the vehicle. On the alleged payments for the vehicle by the appellant, we were referred to page 215 of the record where the appellant made reference to a leasing agreement, which he later admitted did not bear his signature. With such evidence, Counsel said that the learned trial Judge was on finn ground when he frowned upon the appellant's evidence on alleged payments. J9 The issue that comes out clearly under the two grounds of appeal, is one of ownership of the disputed motor vehicle. Following our anxious consideration of the record of appeal, the submissions from both sides and the heads of argument we are of the view that the learned trial Judge was on firm ground when he decreed, at page 17 of the record, that “the vehicle is, legally, the property of Tukongote Mining Limited.” Counsel for the appellant has referred us to the evidence of the 1st respondent, found at page 219 of the record, in which the 1st respondent states that, both Tukongote Mining Limited and Makumbe Limited did not have receipts to evidence the purchase of the vehicle by them. This statement cannot be far from the truth because it is the evidence of the 1st respondent that the vehicle was owned by his father in Switzerland before it came to Zambia. His evidence is that it was donated to the mine as part of his father’s investment so that the operations of the mines could be enhanced. The record of appeal shows that at one time Godwin David Mubita (page 61) and R. Monde (page 64) wrote letters, respectively to the police and the Department of Mines and Minerals Development, purporting to show that the vehicle was not for Tukongote Mining Limited but for the appellant. This was done without the knowledge or concurrence of the lsl respondent (see page 219, lines 22, 23 and 24). The authenticity of the letter of R. Monde was investigated and found to have been fraudulently written (see pages 84 and 85 of the record). It was as a result of very thorough investigations that the Mines and Minerals Development Department withdrew its instructions to the Commissioner General, Zambia Revenue Authority, to have the disputed vehicle transferred to the appellant’s new employer, Sheas Mining Company Limited, because it was misled (see letter J10 at page 48 of record). In view of the foregoing summary it is clear that at no time did 1 ukongotc Mining Limited disclaim ownership of the vehicle. We were referred to a document at page 49 of the record, which shows that the seller of the vehicle is Maeder Aircraft Tire Company Limited while the impoiler is Tukongote Mining Limited. The form is a Zambia Revenue Authority import declaration form and, therefore, a local document. But there is a more authoritative document at page 114 of the record, which is a bill of lading and which Counsel for the appellant could not challenge. A bill of lading is, under Section 30 of the Customs and Excise Act (2), a document that provides proof of goods that are imported into Zambia. In this bill of lading, the exporter of the Land Rover Discovery is shown as Gondrand Limited of Switzerland while the consignee is shown as Makumbe Limited of Lusaka. The name of the 1st respondent appears under the column "carrier’s receipt/marks and numbers.” With such evidence, the learned trial Judge was in error when he said that Tukongote Mining Limited imported the vehicle. What is correct is that the motor vehicle was consigned to Makumbe Limited, the holding company of Tukongote Mining Limited. The evidence of the 1st respondent was that, he was the Chairman of Makumbe Limited and Chief Executive Officer of Tukongote Mining Limited. In order to qualify for a rebate on duty and VAT the 1st respondent, acting on behalf of Makumbe Limited, decided to have the vehicle registered in the name of Tukongote Mining Limited, a company that was involved in actual mining operations. We have had difficulties in comprehending the law of Switzerland relating to the registration and ownership of motor vehicles in that country. We feel that the appellant and the 1st respondent and their Counsel, are to blame because, they have been preoccupied in stating or presenting JI 1 information or data that is most favourable to their respective sides, which has not been of assistance to us. But what has not been disputed is the evidence of the 1st respondent that, upon the dissolution of the car recovery service company in Switzerland, he decided to leave for Zambia; that the appellant remained behind to make arrangements for the shipment of the vehicle in a container to Zambia. We have already pointed out that the vehicle was, according to 1st respondent, given to him by his father to ✓ promote mining operations at Tukongote Mining Limited. The question that has never been answered, both in the court below and on appeal, is why was the vehicle consigned to Makumbe Limited, and not to the appellant, C/o Makumbe Limited, if the vehicle was really his? Upon his arrival in Zambia, the appellant did not want to inquire into the status of the vehicle, that is, whether it had been cleared with Customs and Excise. If indeed he( was the owner of the vehicle, the appellant was supposed to pay duty and VAT upon his arrival in Zambia. If duty and VAT had already been paid, by someone he was expected to refund the person who had paid on his behalf. Further, if the vehicle was not registered in his name, he was supposed to raise the issue of registration immediately after he set foot in Zambia. These issues are raised because we think that the appellant did not conduct himself in a proper and honest manner when he began to raise dust about the vehicle after the 1st respondent had terminated his employment with Tukongote Mining Limited. On the basis of our reasoning, the two grounds have no merit. We now move to grounds 2 and 4. These read as follows:- JI 2 2. That the Honourable trial court erred in law and in fact in holding that under the laws of Zambia the red book was evidence of ownership. 4. I hat the Honourable trial court erred in law and in fact in stating that the rule set by the Supreme Court in the case of Kearney and Company Limited -Vs- Agip (Zambia) Limited and Ashalt and Tarmac Limited (1) is distinguishable from the present case as nothing is stated to distinguish the same. In support of the two grounds, Counsel for the appellant briefly submitted that the learned trial Judge did not look at the evidence properly. Had the learned trial Judge examined the evidence as presented, the result would have been different, Counsel submitted. As far as he was concerned, the owner of the vehicle was the appellant and that the position taken by the trial court that the red book was evidence of ownership was wrong. He submitted that the decision of this court in the case of Kearney and Company -Vs- Agip (Zambia) Limited (1) was still good law, which the trial court should have followed, instead of distinguishing it without indicating the facts that were distinguishable. His view was that, a red book was the same as a blue book and, therefore, it cannot be evidence of ownership, but can be taken into account in arriving at a decision as to the ownership of the vehicle. In response, Counsel for the 1st respondent submitted that, in arriving at the decision that the red book was evidence of ownership that the motor vehicle was the property of Tukongote Mining Limited, the trial court had looked into the totality of the evidence before it. As far as Counsel was concerned, the case of Kearnev and Company Limited -Vs- Agip (Zambia) Limited (1) was distinguished to enable the teamed trial Judge to JI 3 arrive at the decision that on the basis of the red book, the vehicle was the property of Tukongote Mining Limited. We have duly considered the submissions, which hinge on whether the red book is evidence of ownership of the disputed motor vehicle and whether the learned trial Judge fell into error when he distinguished the case of Kearney and Company Limited -Vs- Agio (Zambia) Limited and Another (1) from the case at hand without assigning reasons for his stand. We would like to assume, in the absence of any evidence to the contrary, that a blue book or white book is the same as the red book. The difference, we think, can be discerned from the purposes for which the two sets of books are issued. From the record of appeal, it is clear that the red book was issued because no duty and VAT were payable on the motor vehicle. The vehicle had been imported by an investor to be used in his mining operations. The waiver of duty and VAT was given by Zambia Revenue Authority on the recommendation of the Department of Mines and Minerals Development because the vehicle was, if we may repeat, imported to be deployed in the mining operations of Tukongote Mining Limited. However, it would appear to us that, in the event that the vehicle is sold and its character substantially altered duty and VAT would have to be paid before a white book is issued to a new owner i We have visited our decision in the cited case of Kearney and Company (1) and our position has not changed. Thus, a blue book or white book “is not a document of title; at most it is some evidence to be taken into account when investigating the question of ownership.” In the present case, the red book forms the bulk of the evidence in determining the question of ownership of the land rover discovery vehicle and to that extent, we think J14 that the learned trial Judge fell into error in distinguishing the Kearney and Company case. The case should have actually been brought in, in aid. Given the evidence shown on the bill of lading, whereby Makumbe Limited is the importer of the disputed motor vehicle, and the subsequent rebate on the payment of duty and VAT in respect of the said vehicle in favoui of Tukongote Mining Limited, a subsidiary of Makumbe Limited, we harbour no doubts in our minds on the ownership of the motor vehicle as evidenced by the red book. Grounds two and four are equally unsuccessful Accordingly, the appeal is dismissed with costs, to be taxed in default of agreement. I ..................................................... D. K. Chirwa, SUPREME COURT JUDGE. I. C. M. Mambilima, SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.