Motor Holdings Zambia Ltd v Raman (Appeal 109 of 2000) [2001] ZMSC 145 (13 February 2001)

IN THE SUPREME COURT FOR ZAMBIA Appeal No. 109/2000 HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) BETWEEN: MOTOR HOLDINGS ZAMBIA LTD Appellant AND RAJ RAMAN Respondent CORAM: Ngulube C. J., Chirwa and Late Muzyamba JJs On 8th November 2000 and on 13th February 2001 For appellant - M. Mutemwa, of Mutemwa Chambers For respondent - J. M. Chimembe, of JMC & Associates. I J U D G ME N T Ngulube, C. J. delivered the judgment of the court. When we heard this appeal, we sat with the Late Mr. Justice Muzyamba who had prior to his untimely demise indicated his agreement with the conclusion we reach. However, since the judgment was written afterwards, it should be treated as one by the majority. The respondent sued the appellant to recover a sum of pounds sterling 17,600 or its Kwacha equivalent, being commission earned on the sale of 176 motor vehicles. The defence was that this sum had already been paid to the respondent using a third party cheque. It was in evidence that the respondent had been given a third party cheque for the precise amount. When asked about such payment, the respondent is recorded to have said - “Mr. Viljoen paid me some; a cheque not related to this claim in the same amount. It has nothing to do with this claim. This was not from the defendant company; it had nothing to do with Motor Holdings. Motor Holdings was to pay me commission for the motor vehicles I sold for them. There was no third party arrangement to pay me my commission'’’. In contrast, two very senior persons testified for the appellant. DW1 was the Group Credit Controller whose evidence was that in February 1996, the third party was owing the appellant some money in pounds sterling while the appellant owned the respondent the sum claimed in the action. DW1 said arrangements were made for the third party to issue two cheques, one for 17,600 pounds payable to the respondent and another for 25,982 pounds payable to the appellant in settlement of the third party’s own debt to the appellant. The evidence of DW2 was that he was at the time the Finance Manager of the appellant and he was personally present „when the General Manager handed over to the respondent the cheque for 17,600 pounds in settlement of his outstanding commissions which the respondent was again claiming in the action. The learned trial Judge said that because there was nothing in writing to support DWs 1 and 2, their evidence was speculative and an assumption so that the respondent plaintiffs evidence was accordingly more believable. The learned trial Judge took some time discussing the doctrine of privity of contract although in the circumstances the whole of such discussion was irrelevant and immaterial. There was only one ground of appeal which alleged error of law and fact in the conclusion reached by the learned trial Judge. It was pointed out, quite correctly, that the defence had explained how they got the third party debtor to issue a cheque to the plaintiff respondent while the latter had himself utterly failed to offer any explanation for the cheque which he was given for the 17,600 pounds. It was pointed out that this arrangement which was perfectly understandable and straightforward did not raise any problems of privity. Mr. Chimembe supported the Judge and urged that we should not interfere with findings of fact. We have considered the submissions and have no difficulty in agreeing with Mr. Mutemwa. The learned trial Judge had given reasons for resolving the issue of credibility which were manifestly bad reasons. DWs 1 and 2 could not have been making assumptions or speculating about the payment of 17,600 pounds when even the plaintiff respondent himself admitted he had received such a cheque. In the passage which we have quoted, it is plain that the respondent had no explanation whatsoever for the payment which he got. In sharp contrast, the defence witnesses gave a lucid and straightforward explanation which ought to have been accepted had the learned Judge not misdirected himself with unnecessary considerations of privity. The appeal had merit and it is allowed. We reverse the Judge below and enter Judgment for the appellant, with costs to be taxed if not agreed. Before leaving this case, we wish to draw the attention of counsel for the appellant to Rule 58(2) of the Supreme Court Rules. The notice of appeal and the memorandum of appeal which was filed contained a lot of arguments and submissions, matters which are best left to the Heads of Argument. A memorandum of appeal should comply with the rule we have mentioned otherwise the whole of the memorandum may be struck down *5 and the entire appeal be thereby jeopardized. CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE