Maamba Collieries Limited v Southern African Delivery Company (PVTY) Ltd (CAZ APPEAL NO. 122/2019) [2020] ZMCA 146 (15 July 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ APPEAL NO. 122/2019 BETWEEN: AND ift"lJWC OF lA · OJRT OF A Pr, :':181,4 t,i, J ~r-~ ~JIii: 1 1 5 JUL 20 D rt-, - :.l_- ,0 CIVIL REGISTRY 2 ·O . 80x 50067, LIJSl'-t l'-· MAAMBA COLLIERIES LIMITE ~L APPELLANT SOUTHERN AFRICAN DELIVERY COMPANY (PVTY) LTD RESPONDENT CORAM: KONDOLO SC, CHISHIMBA, MULONGOT I, J J A On 19th June, 2020and on 15th Julyt2020 For the Appellant : M r. J. Kalokoni of Mesrrs. Kalokoni & Company For the Respondent : L. Mayembe and L. Kabaso of Messrs KBF and Partners JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court CASES REFERRED TO: 1. Frank Bwalya Xl (suing on behalf of himself an.d hi!s capacity as Executive Director of Change Life Zambia Limited)i v Attorney General, Katele Kalumba (sued in his cap,aciJ.t y as the Secretary General of the Movement for Multiparty Democracy·) & William. Banda (2012) 1 Z. R. 354 2 . Newplast Industries v The Commissioner of La.nd.s & The: Attorney General (2001) Z. R. 51 3. Jarvis Williams (1995) 1 ALL ER 108 4. Lancashire v L & N. W Rly (1892) 2CH. 274 ALL ER 108 J2 of24 5. Attorney General v D. G. Mpundu (1984) ZR 6 6. Anderson Kambala Mazoka & Others v Levy Patrick Mwa nawa sa. and 2 Others (2005) Z. R. 138 7. Eastern Cooperative Union Limited v Yamene Transport Limit e d (1988-89) Z. R . 126 8 . Zambia Breweries Plc and Betternow Family Limit.ed. SCZ/174/2016 9. Hillesden Securities v Ryjack [1983] 1 WLR 959 10. Richard Kalyungu & 26 Others v Maamba ColUeries Umitedl SCZ/152/2011 11. Zambia Information and Communications Technology Authority v Razone Enterprises Appeal No. 129/2016 12. 0 Harris v Lombard NZ Ltd (1974] 2 :N'ZLR 161 13. Georgina Mu tale (T / A G. M. Manufacturers Ll mi.ted.} V Zambia National Building Society SCZ Judgment No. 5 of 200 2 14. Strand Electric and Engineering Ltd v Brisford Ent ertainment s Ltd [1952] 2 QB 246 TEXT REFERRED TO: 1. Clerk and Lindsell on Torts 12th Edition (1961)! p94 5 and 969 2 . Professor of Law at the University of Canterbury 3. McGregor on Damages, 16th Edition: Sweet and Maxwell. London (1997) This is an appeal against the Judgment of the Honorable Justice E . L. Muson a d a ted 29 th March 20 19 .. According to the statement of claim, around 19 th June, 2008 th e Plain tiff (Respon dent), a South African based company, requested its agen t Clive Bryan t o atten d to one of its trucks and he was allowed to park the truck, registration number NU 60233, J3 of24 and trailer registration numbers NU 14 7 4 7 and NU4203,0 at the Defendant's (Appellant) premises at Plot 2 156 Lumumba Road, in Lusaka with the permission of the Defendant's tenant Build-It. Hardware Ltd ("Build-It"). The Respondent was neither informed nor aware of any problems between the Appellant and Build-It. At the end of June, 2008 Build-It's tenancy came to an end and it moved out of the rented property but owing to rental arrears, the Appellant confiscated all of Build-Its property including the Respondent's truck. The Respondent explained that the truck did not belong to Build-It but the AppeHant refused to release the truck even after Build-It informed them in writing that the truck belonged to the Plaintiff. The Respondent then commenced an action against the Appellant seeking the following reliefs; 1. Damages for wrongful interference with goods. 2 . An order for delivery of the truck horse registration number, NU 60233 and trailer registration numbers, NU 14747 and NU 42030 or their value, namely, US$120,.000 and dam.ages for the detention thereof. 3. Injunction 4 . Interest J4 of24 5. Costs The Appellant filed defence and counter-claim in which it expressed ignorance of the Respondent's ownership of the truck and stated that as far as it was concerned the truck belonged to Build It. In its counter-claim, it sought the following reliefs;. 1. Damages for trespass on the Defendants property 2. Storage charges at K2,000 per night The Plaintiff called only one witness Clive Ernest Bryan as PWl who basically repeated the contents of the s tatement of claim. He stated that the Respondent's truck driven by Hoffman Bruce was parked at Build-It premises after he obta.ined perm1ss10n from its director Ms. Debra. Jones. He further confirmed that the Appellant refused to release the truck. He told the Court that the truck did not belong to Build-It and was registered under the name of Thunderflex Pty Ltd ('Thundedlex") a sister company to the respondent [sic]. In response to the counterclaim, PWl stated that the truck was parked under Build-It and the storage charges being claimed by the Appellant were unjustified because the Appellant had prevented them from towing the truck away. He h ad no idea of JS of 24 the lease between Build-It and the Appellant until he tried to tow the truck. The truck had been in the custody of the Appellant for 11 years. He asked that the Court orders the truck to be handed over to the Respondent and that the damages claimed be paid including costs. Under cross examination, PW 1 stated that the Respondent's claim was for wrongful interference. He agreed that Thunderflex was not a party to the proceedings and that he had no proof that Thunderflex had authorized the Respondent to commence the action before Court. He reiterated that he parked it under the authority of Build-It before he later discovered that Build-It owed the Appellant rental arrears. PWl was referred to the letter from Build-It to the Appellant (page 62 Record of Appeal) in which the Defendant was informed that the truck did not belong to Build-It and if they so wished, the Appellant could charge the Respondent a storage fee. PWl then stated that the storage fee was not paid because there was no feedback from the Appellant. The Appellant equally called only one witness, Golden Siamutwe (DWl), who worked under the Appellant's Mine Police J6 of 24 department. OWl stated that around June, 2008 a Mr. Bruce parked a truck and two trailers at the Appellant's premises. He testified that he personally dealt with Mr. Bruce who told him that the truck belonged to Build-It Hardware and he allowed him to park it there. After Build-It left the premises, the Appellant's management asked him to compile a report about the truck and trailers (page 92 of the record of appeal). He said they refused to release the truck to the Plaintiff because they only knew Build-It and they were claiming storage fees from 2008 at the rate of K2,000 per night. Under cross examination OW 1 agreed that his report referred to SAOC, the Respondent Company, and he conceded that Mr. Bruce was from the said company and that the truck was marked with the name SAOC. In re-examination OWl said that the letter from Build-It advising that the truck belonged to SAOC was not accompanied with any documents showing proof of ownership. The trial Court found that with due diligence, the Appellant would have established that the truck was indeed not the property of Build-It because the driver was not from Zambia, the truck and trailers sported foreign number plates, OW 1 's report indicated that the truck was labelled with the Respondent's J7 of 24 name 'SADC' and that Build-It advised the Appellant, in writing, that it was not the owner of the truck. Th e Court further found that the Appellant had exercised a lien against the wrong party. The case of Tear v Freebody (1858) 4 CB (NS) 228 was cited in which the defendant who exercised a lien against the property of the wrong party was found guilty of conversion. The trial judge, in casu, found that the Appellant's conduct amou nted to wrongful interference with the Respondent's property and awarded the Respondent the following reliefs; 1. Damages 1n the sum of US$500 per week from 2 nd July 2008 until full payment but in the same breath ordered that in default of agr eement, the award be assessed. 2. That the truck and two trailers be released forthwith. The learned trial Judge dismissed the counter-claim for trespass on the basis that he saw no trespass on the part of the Respondent because the trucks were parked at the Appellant's premises lawfully. The trial Court granted the claim for storage charges at the rate claimed of K2000 per night from 19th June, 2008 the date JS of 24 the truck was parked at the Appellant's premises, up to 2 nd July 2008 the date when the Respondent was prevented from towing the truck and trailers. Finally, the learned trial Judge awarded interest on the amounts awarded to each party and that each party would bear its own costs. Displeased with the findings of the lower Court, the Appellant has appealed against the Judgment on the following grounds; 1. The learned trial judge misdirected himself in both law and fact by refusing to nullify the proceedings in which the Respondent does not have any locus standi at all. 2. The learned trial judge misdirected himself in law and fact by awarding damages to the Respondent in the sum of US Dollars 500 per week from 2008 up to the date of full payment without any evidence adduced by the Respondent to support this amount at all. 3. The lower Court erred in law in capping the award on storage charges to less than 30 days only while , J9 of 24 awarding the Respondent endless dama.ges for loss of use of the truck and trailers whic:h are in fact not the property of the Respondent. 4 . The trial court misdirected itself in law and fact by failing to consider the reasons for w·hich the Appellant refused to release the truck and trailers to the Respondent herein and fo:r a llowing t h em to benefit from their own duplicity. 5 . The trial court misdirected itself both in law and fact by failing to address the admitted rent arrears whiich the appellant is being owed by the owners of the truck and trailers. 6. The trial court misdirected itself both in. law and fact by refusing to allow the Appellant to sell t he truck and trailers to recover the admitted :rental arrears. Both parties filed Heads of argument. The AppeHant's argument under ground 1 was that the Respondent had no locus standi in th e matter because according to the evidence of PW 1, the owner of the truck was Thunderflex who were not parties to this action . Further that no evidence was tendered proving ownership of the truck by the said non-party and there was an f ,JlO of 24 admission that the said Thunderflex did not give the Respondent authority to sue on its behalf. It was submitted that a person could only sue if they had sufficient personal and direct interest in a matter in the sense of being personally adversely affected by the alleged wrongdoing. That a party who fails to show such interest has no focus standi and the court has no jurisdiction to hear the matter and the proceedings are a nullity. Counsel cited the cases of . Frank Bwalya Xl (suing on behalf of himself and his ,capa,city as Executive Director of Change Life Zambia Limited) v Attorney General, Katele Kalumba (sued in his ,capacity as the Secretary General of the Movement fo:r Multiparty Democracy) & William Bandal1) and Newplast I:ndu stries v The Commissioner of Lands & The Attorney ,General. l2l The Appellant prayed that the appeal be dismissed on this ground alone as the Respondent was not the owner of the truck and therefore had no locus standi. The Respondent's initial reaction was that the . Frank Bwalya Case cited by the Appellant was a High Court case and therefore not binding on this Court and the Newplast Case can be distinguished from the case at hand because neither it nor the I Jll of 24 Frank Bwalya Case related to claims for wrongful interference with goods and were thus erroneously cited by t he Appellant. Clerk and Lindsell on Torts 12th Edition (1961) p94·5 and 969 was cited where it states that: "The general rule is that the right to bring an a .ction fo·r conversion or wrongful detention of goods belongs to the person who can prove that he had at the time of the conversion or detention, either ac:tual possessio•n. or immediate right to possess." Further, the cases of Jarvis v Williams f31and Lancashire v L & N. W Rly (4 l 108 were called in aid Counsel for the Respondent pointed out that the Record clearly showed that the truck was parked at the Appellant's premises by the Appellant's driver Hoffman Bruce a n d PWl after PWl obtained permission from the Build-It director Ms. Debrah Jones. Secondly, DW l 's report confirmed that the tru ck was parked by Bruce and was marked with the Respondent's n ame SADC meaning that it was therefore without dou bt th at the Respondent's had ex facie title to the truck a s it was in their possession when it was parked at the Appellant's premises. Clerk a:nd Lindsell 1(supra) was cited again where it states Jl2 of 24 that: ''If the Plaintiff makes ,out a good prima facie title possessio.n or otherwise, the defendant must in the first place imp,each that title .by showing that there is a better :right in someone else. '' H was pointed out in th is regard, that ever since the Appellant wrongfully detained the R:espondent's truck, 11 years ago, nobody other than the Respondent had come forward to claim ownership. It was opined that the Respon dent had locus stand.i and th is ground of appeal should therefore be dismissed. The AppeUant argued grounds 2 and 3 together and it was submitted that the Respondent neither pleaded nor proved loss of business amounting to US.$500 per week for eleven years as ordered by the Judge. Counsel cited the case of Attorney General v D. G. Mpundu f5l in which the Supreme Court indicated that special damages should be pleaded and the case of Anderson Kambala Mazoka & Others v Levy Patrick Mwanawasa a:nd 2 Others (6l in which it was h eld that parties are bound by their pleadings. • J l 3 o f 24 It was further argued that even in the event that damages were payable, ordering that they be paid over a period of 11 years was contrary to the well settled principle that a claimant must mitigate his loss as enunciated in the case of Eastern Cooperative Union Limited v Yamene Transp,o,rt Limited{7 ) where in the circumstances of that case, damages for loss of business were limited to a period of 6 months.. The case of Zambia Breweries Pie and Bette1rnow Family Li m ited!8l was also cited. Counsel opined that the trial Judge shou]d have capped his award of damages in the same manner that he capped the award of storage charges ordered against the Respondent. In response, Counsel for the Respondent pointed out that paragraph 10 of the statement of claim at page 23 of the record of appeal clearly indicated that the Respondent had been deprived of the use of the said truck and trailers and had suffered loss and the particulars of the loss were claimed at the rate of US$500 per day. That the evidence on record clearly showed that the court found that the truck and trailers were converted by the Appellant and the trial court was entitled to award dama ges for loss of use. Counsel cited t h e case of Hilleden Securities v Ryja.ck(9) in which the claimants' Rolls Royce was wrongfu lly sold to the J14 of 24 defendants by the person who hired it from the claimants. In the cited case, the court ordered payment from the date of its conversion by the Defendants to the date of its return. It was opined that the truck being a profit earning chattel which the Respondent could have hired out, the court had the power to grant the award that it did. Grounds 4 and 5 were .argued together and essentially addressed the same issues resulting in overlapping and repetitive sub111issions, even of arguments advanced in the earlier grounds. The essential aspects of the arguments are that the trial court should have considered that the Appellant refused to release the truck because on the night the truck and trailers were parked, the d river of the truck told OW 1 that the truck and trailers belonged to Build-It. That being the case and Build-It, having left the premises with rental arrears, the Appellant was entitled to hold a lien against the truck which it believed to be the property of Build-It. The other reason the Appellant refused to release the vehicle was because the Respondent refused to pay storage fees for the period the truck was parked a t the Appellant's premises. The Appellant submitte d tha t the Respondent was guilty of duplicity by "blowing hot and cold" because in one instant it .. J 15 of 24 claimed that the truck belonged to Build-It and in the next instant it claimed to be the owner. Counsel cited the case of Richard Kalyungu & 26 Others v Ma.am.ha Collie ries Limited(10l in which it was held that, "he is not to be heard he who says things contradictory to each other". Also cited was the case of Zambia Information and Communica t ions Technology Authority v Razone Enterprises(1It. In ground 6 it was argued that the Appellant should have been allowed to sell the truck so as to recover rentals. This wa s because at the time of parking, the Respondent had declared the truck as being the property of the Appellant's defaulting tenant, Build-It. The Appellant prayed that the appeal be allowed in its entirety. r The Respondent addressed grounds 4, 5 and 6 together and submitted that DW 1 had referred to his written report at page 89 of the Record of Appeal which indicated that the driver of the truck from SADC told him he was parking the truck under Bu ild It and that the truck was marked with the Appellant's name .. That nowhere in the report was it stated that the said properties belonged to Build-It and the letter from Build-It to the Appellant • J l 6 of 24 confirmed that the truck did not belong to Build-It and that these grounds of appeal must be dismissed. At the hearing Counsel for both parties briefly augmented their written arguments. Mr. Kalokoni, on behalf of the Appellant submitted that the trial Judge rewarded the Respondent with limitless damages of US$500 per week for its own default of failing to prove ownership of the truck. The Respondent reit erated that the action before the lower Court was for wrongful interference with goods and that their heads of argument had adequately demonstrated that the right to bring an action under such a cause can rest with a person who has m.ere possession. Mr. Kalokoni responded by stating that all the Appellant wanted was proof of ownership. He further stated that he agreed with the principal that an agent can sue on behalf of a principal and that Bruce should have sued on behalf of the Respondent as agent. We have considered the Record of appeal and the arguments advanced by counsel for both parties. We a gree with Counsel for the Appellant as submitted under ground 1, that the issue of locus standi goes to the jurisdiction of the Court to hear the • J'17 o f 24 matter. Counsel was unshakably entrenched in the view that in this particular case, locus standi could only b e established by proving ownership of the truck and this th read of t hought influenced his entire argument in this appeal. It was Counsel's view that ownership of the truck had not been proved and he cited authorities which indicated that a d aimant must show sufficient interest, both abstract and legal. The statement of claim shows that the claim. against the Appellant was for damages for wrongful interference with goods. The Respondent cited several authorities which show that in an action for conversion or wrongful detention of goods ownership of the converted goods need not be proved as the action can be commenced and sustained by a person who at the time of convers10n or detention had either actual. possession or immediate right to possess. That ownership of the goods need not be proved. Counsel for the Appellant did not offer any arguments on the law relating to wrongful or unlawful interference with goods .. We refer to the Canterbury Law Review (Vol 17, 2, 2011] Cynthia Hawes, Associate Professor of Law a.t the University • Jl8 of 24 of Canterbury where it cited the case of O Harris v Lombard NZ Ltd (121 as follows; Thus, no one but a person who has actual, de facto possession, or the immediate right to possession, of the goods at the time they are converted may bring an action in conversion, detinue, trespass or negligence. Because it is possession and not ownership which is protected, it is not necessary to show ownership to establish a right to sue, although of course an owner with possession has such a right. The right, however, is not a consequence of ownership, but of possession, which is a right included in unrestricted ownership. It is thus clear that possession of the goods is sufficient to establish an interest in the action before us. The evidence before the lower Court established the following; a. According to the report produced by DWl (page 92 of the record of appeal), the truck and two trailers were parked at the Appellant's premises by the Jl9 of 24 Respondent's driver and the truck was marked with the Respondent's name SADC b. The Appellant's tenant Build-It Hardware informed the Appellant, in writing, that the truck belonged to the Appellant. On the facts before the trial Court, we find that the Respondent was in possession of the truck and two trailers when they were parked at the Appellant's premises. The Respondent therefore had the necessary locus standi and ground 1 is consequently dismissed. Our reaction to ground 2 is that even though damages for loss of business was pleaded, the Respondent did not provide any evidence with regards to quantum. We agree with Counsel for the Appellant that the trial Judge erred by awarding the Respondent the sum of US$500 per week without adequate evidence. As held in the case of Georgina Mu tale (T / A G. M. Manufacturers Limited) V Zambia National Building Society l13l, in the absence of specific evidence of the value of the loss, justice would have been better served by referring the matter to the Deputy Registrar for assessment of damages instead of giving a figure which bears no relationship to anything in particular in the case. • J20 of 24· The manner 1n which the trial Judge awarded the sa.id damages cannot go without comment. This is what he sa.id, "Accordingly, therefore, I order US$500 per week from 2nd July 2008 till full payment. To be assessed in default of agreement." The learned trial Judge ordered a specific sum. bu t also referred the said sum for assessment which in our view was a misdirection as he should have only ordered one or the other. At common law, the tort of misappropriation of goods (now called wrongful interference with goods) comprised the tort s of detinue, conversion and trespass. Whereas the relief for the tort of detinue was generally for return of a chattel or recovery of its value, the relief for conversion was limited to the va]ue of the converted chattel. However, in the United Kingdom, the Torts (Interference with Goods) Act 1977 in effect abolished the tort of detinue and assimilated it into the tort of conversion and the reliefs previously available only under detinu e are now avai]able under conversion. See McGregor on Damages, 16,th Edition. at paragraphs 1374 to1376 and 1379. Ji21 of 24 The cited Act does not apply to Zambia and the corn.man law position continues to persist. In casu, the Respondent's statement of claim did not specifically s tate whether the claim was for detinue or conversion but simply sought the following; 1. Damages for wrongful interference with goods 11. An Order for Delivery up of the truck horse registration number NU 60233 and trailers registration numbers, NU 14747 and NU 42030 or their value, namely US$120,000 and damages for the detention thereof. The claim appears to be for the common law remedy of detinue which is an action for the return of the chattels. McGregor on Damages (supra) cites the case of General an.d Finance Facilities v Cooks Cars (Romford) [1963] 1 W. L. R 644, C. A. where Diplock L. J said as follows; "An action for detinue today may result in a judgement in one of three different forms: (1} for the value of the chattel as assessed and dama.ge:s for its detention; or (2) for return of the c hattel or recovery of its value as assessed and damages for its J22 of 24 detention; or (3) for return of the chattel and damages for its detention. " With regard to damages under detinue, McGregor on Damages (supra) cites the case of Strand Electric Co. v Brisford Entertainments !1 4l where the defendants had refused to return to the plaintiffs certain profit-earning electrical equipment which the plaintiffs hired out in the course of their business, and which the defendants had made use of during the detention for their own ends, the Court of Appeal held that the Plaintiffs were entitled in the circumstances to the full market rate of hire of such equipment for the whole period of detention. On the strength of the cited authorities, the learned trial Judge was entitled to order that the truck and two trailers be released to the Respondent forthwith. The Respondent is entitled to damages but not in the manner ordered by the learned trial Judge. The truck and trailers are profit-earning equipment meaning that the Respondent is entitled to the full market rate of hire of such equipment. Though unlike in the Strand Electric Co. Case (supra) there is no evidence that • J23 of 2 4 the Appellant used and profiteered from the chattels. In the circumstances damages cannot be awarded for the entire duration of the detention and the Respondent wou]d have been required to mitigate its loss as enuncia ted 1n Eastern Cooperative Union Limited v Yamene Transport Limited (supra). Damages are therefore awarded to the Respondent and the period for which they are payable and quantum thereof are referred to the Deputy Registrar for assessment. As earlier stated, the trial Judge erred when he awarded damages in the sum of US$500 per week and the awar d 1s therefore set aside. The second ground of appea] succeeds to that extent. With regard to ground 3, the evidence on Record is that the Respondent's truck and two trailers were parked at the Appellant's premises after permission was obtained from Build It who were the legal tenants at the time. When the Respondent tried to pick them up, the Appellant prevented them from doing so in the mistaken belief that they actually belonged to Build -It. The Respondent did nothing to warrant being cond emned to paying parking fees and the trial Judge erred in that regard. The T • J24 of 24 award for parking charges is consequently set aside and ground 3 therefore fails. The effects of our holding is that the truck and two trailers did not belong to Build-It and that grounds 4, 5 and 6 automatically fail and are consequently dismissed. Costs in the Court below are awarded to the Respondent and costs in this Court are awarded to the Appellant on account of succeeding in ground 2 which we see as the main issue in this Appeal. M. M. KONDOLO SC COURT OF APPEAL JUDGE F . M. CHISHIMBA COURT OF APPEAL JUDGE J. Z. MUL GOTI COURT OF APPEAL JUDGE