Musanya Katati v Yannick Kasonde (APPEAL NO. 307 /2022) [2024] ZMCA 334 (10 December 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 307 /2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN r \3L ,,\J,,-;--:.::--...;.- r ... - . •---..... _ ,/&/ 1 0 -~~ ,, Ill 01,riW I MUSANYA KATATI . ~ ~_::.i;ol'\ , , ~1c. ~~~ APPELLANT AND YANNICK KASONDE 1ST RESPONDENT WILLIAM KASONDE KANGWA 2ND RESPONDENT CORAM: Chashi, Makungu and Sichinga, JJA ON: 18th September and 10th December 2024 For the Appellant: C. Chungu, Messrs Nsapato & Co Advocates - Pro bono, on instructions from Law Association of Zambia (LAZ) For the ] st Respondent: NI A For the 2nd Respondent: In Person JUDGMENT CHASHI JA, delivered the Judgment of the Court Cases referred to: 1. Khalid Mohamed v Attorney General ( 1982) ZR, 49 2. Daniel Peyala v ZCCM - SCZ Appeal No. 81 of 2012 3. Chibwe v Chibwe - SCZ Judgment No. 38 of 2000 4. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR, 172 -J2- 1.0 INTRODUCTION 1. 1 When we heard the appeal herein Honourable Mr Justice D. L. Y Sichinga SC, sat with us. He is now no longer part of this Court. This Judgment is therefore a majority Judgment. 1.2 This is an appeal against the Judgment of Honourable Mr Justice E. Pengele, delivered on 31 st December 2021. In the said Judgment, the learned Judge held the Appellant liable for the disappearance of a Toyota Coaster Bus, Registration No. 5570, which belonged to the 2 nd Respondent. 1.3 Consequently, the Appellant was ordered to either return the bus in its original condition or compensate the Respondents in the sum of KS0,000.00. 2.0 BACKGROUND 2.1 This appeal revolves around a Toyota Coaster Bus, Registration No. 5570 (the bus), owned by the 2 nd Respondent. On 26th March 2022, the Respondents, who were plaintiffs in the court below, commenced an action against the Appellant by way of Writ of Summons. They sought an Order for the Appellant to -J3- return the bus to them in the same condition it was in at the time it was received. 2.2 According to the attendant statement of claim, the 2 nd Respondent acquired the bus in May 2009 . After experiencing a minor engine fault, and despite extensive repair efforts, the bus remained neither fully operational nor roadworthy. The 2 nd Respondent then sought the assistance of Mr. Bernard Kata ti (the deceased) for further repairs. 2. 3 It was asserted that the deceased and the 2 nd Respondent reached a verbal agreement, whereby the deceased would repair the bus, with the 2 nd Respondent agreeing to reimburse the cost. The 2 nd Respondent then transported the bus from Chingola to Mufulira. Following this, the deceased entrusted the bus to his son, the Appellant, requesting that he takes care of it while repairs were being completed. Since then, the bus has not been serviced, and the Appellant has failed to provide an account of its whereabouts following the deceased' s passing. 2.4 In his defence, the Appellant denied any knowledge of the verbal agreement between the deceased and the 2 n d -J4- Respondent, asserting that the Respondents' allegations were unfounded and driven by panic fallowing the deceased' s death. He claimed that he had no partnership with the deceased and therefore , could not be held liable for any alleged debt. 2.5 The Appellant further argued that he was not the appointed administrator of the deceased's estate and as such, lacked the legal standing to be sued by the Respondents. 2.6 At the trial, the Respondents testified and called four witnesses. The 1st Respondent testified that after unsuccessful repair attempts on the bus, the 2 nd Respondent's children decided to seek help from the Appellant and his siblings, who were mechanics. They asked the 2 nd Respondent to request the deceased to speak to his sons about assisting with the repairs. In 20 13, the deceased agreed, and the 1st Respondent and the driver took the bus to the deceased who handed it over to the Appellant, who assessed it and estimated the repair costs at Kl0 ,000.00. The 1st Respondent informed them that they needed time to arrange the funds. -JS- 2.7 In 2014, the 1st Respondent contacted DW3, the Appellant's brother, to inquire about the bus, only to learn that someone was interested in purchasing it. The family convened and agreed to sell the bus for K120,000.00, with a minimum acceptable price of KS0,000.00. However, when the 1st Respondent met the prospective buyer, he refused to sell, as the offered price was only KlS,000 .00. 2 .8 The 1st Respondent testified that after the deceased died in 2017, he found the bus missing from the Appellant's house. DW3 told him that a tree had fallen on the bus, and it had been sold for scrap metal. DW3 offered KlS,000.00 as compensation. The 1st Respondent then called the Appellant, who claimed the bus was still there but in poor condition. 2.9 The 2 nd Respondent's testimony was similar to that of the 1st Respondent. He added that when the bus was taken for repair, it was initially parked at the Appellant's house. In 2013, he visited the Appellant's home, where the deceased, the Appellant and Mr. Jere (PW3) were present. The Appellant detailed the repair requirements, -J6- and the 2 nd Respondent agreed to provide the funds once he received payment from his job. 2. 10 A few months later, the Appellant informed the 2 nd Respondent about potential buyers and suggested his son verify the offer and that they were willing to sell at K80,000.00. He stressed that he would not have sent the bus to the Appellant if the deceased had not agreed. 2.11 PW3 testified that he was present when the 1st Respondent left the bus at the Appellant's house. He noted that the Appellant was also present at that time, and the deceased asked the Appellant to assess what was needed to repair the bus. He explained that the deceased owned buses and the Appellant was responsible for their repairs , which is why the bus was taken to him. PW3 also mentioned that the Appellant had agreed to pay Kl ,000 per month as a refund for the bus when questioned by the police. 2.12 PW4 testified that he was present when DW3 informed the 1st Respondent that a tree had fallen on the bus and offered KlS,000.00 for the damaged bus. 2.13 PWS stated that the Appellant had told him a tree had fallen on the bus and that it was taken to Kitwe for -J7- repairs. PWS mentioned that he did not visit the location where the bus was parked because it was no longer there, and the Appellant had already informed him that the bus had been moved to Kitwe. There was no significant information provided in the evidence of PW6. 2.14 The Appellant testified and called three witnesses. According to the Appellant, when the 1st Respondent brought the bus to his house in 2013, he was in Namibia. Upon his return, the deceased informed him that the bus belonged to the 2 nd Respondent and could not be parked at the deceased's house due to space constraints. The Appellant was then instructed by the deceased to check the bus which he did through his mechanics but had no further communication regarding it until after his father's death. He eventually moved out of the house, which was later converted into a school. 2.15 Subsequently, the Appellant was later summoned to Chingola by the police, where he was briefly detained but released with advice to resolve the matter within the family. To maintain peace, he agreed to pay for the bus, -JS- prompting his mother to consider selling a house to cover the debt. 2.16 Under cross-examination, the Appellant confirmed that the bus was at his house and that the deceased had asked him to inspect it, which he did through his mechanics. He also confirmed agreeing to pay Kl,000.00 per month, to keep peace within the family and because the bus was brought to his house. However, he could not confirm whether the Respondents retrieved the bus from his house, as he had moved out in 2015. 2.17 DW2, the Appellant's wife, merely confirmed that she was at home when the bus was brought to their house. Mubanga Katati (DW3) testified that he was unaware of the bus until he visited the Appellant in 2013. He last saw the bus at the Appellant's house in 2016 and noted that it was no longer there on subsequent visits. 2. 18 Katati Kata ti (DW 4) stated that he only knew that the deceased was dealing with the Respondents regarding the bus. -J9- 3.0 DECISION OF THE COURT BELOW 3.1 Upon reviewing the evidence, the learned Judge found no dispute that the Respondents transported the bus to the deceased and subsequently parked it at the Appellant's house in 2013. Additionally, there was no dispute that the current location of the bus remained unknown to the Respondents. 3.2 The central issue, as identified by the Judge, was whether the Appellant could be held liable for the disappearance of the bus. The Judge concluded that the Appellant's claim of being in Namibia when the bus was brought to his house in 2013 was an afterthought. If this had been true, the Appellant would have presented it in his defence earlier, rather than waiting until his testimony in court. 3.3 The Judge also considered the 1st Respondent's testimony, corroborated by PW3, which established that when the bus was delivered to the deceased in 2013 , it was handed over to the Appellant. PW3's credible testimony convinced the Judge that the Appellant was present at the delivery and was tasked to assess and determine the necessary repairs. -JlO- 3.4 Furthermore, the learned Judge found that the Appellant's testimony confirmed the deceased had indeed asked him to oversee the bus repairs and inspect the bus, which the Appellant did, including instructing his mechanics. However, the Judge observed that the Appellant provided no evidence to show he subsequently distanced himself from responsibility for the bus, or returned it to the deceased once the repairs had commenced. 3.5 Regarding the Appellants claim that he had moved from the residence where the bus was parked, the Judge noted his failure to specify to whom he handed over the bus. Based on DW3' s testimony that the bus was last seen at the Appellant's house in 2016 and was missing during later visits, the Court concluded that the bus likely disappeared while the Appellant was still residing there. 3.6 The Judge ultimately determined that the Appellant likely sold or disposed of the bus after the deceased' s death, taking advantage of his claim that the agreement was solely between the 2 nd Respondent and the deceased to avoid responsibility. -Jl 1- 3. 7 Citing the case of Khalid Mohamed v Attorney General1, the Judge found that the Respondents had proven their case on a balance of probabilities and held the Appellant liable for the bus's disappearance. The Judge then ordered the Appellant to either return the bus in its original condition or pay the Respondents KS0,000.00, based on the unchallenged testimony that they had agreed to sell the bus for between KS0,000.00 and K120,000.00. 4.0 THE APPEAL 4 . 1 Dissatisfied with the decision of the lower court, the Appellant has appealed to this Court advancing four (4) grounds of appeal couched as fallows: 1. The learned Judge erred in law and fact by disregarding the Appellant's evidence to the effect that he was not privy to the arrangement concerning the bus in issue between the Respondents and his deceased father. 2. The learned Judge did not address his mind to the fact that at the time the bus in issue was handed over to his late father, he was in -Jl2- Namibia and could therefore not have been involved in any discussions between the Respondents and his late father. 3. The learned Judge erred in law and fact by disregarding the Appellant's evidence to the effect that the bus was only parked at his house by reason of having ample space which his late father's house did not have. 4. The learned Judge erred in law and fact by imputing liability on the Appellant regarding the whereabouts of the bus in issue in total disregard of the provisions of the law regarding disputes involving claims against a deceased person which are supposed to be brought against the Administrator of the estate of the deceased. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 Mr. Chungu, Counsel for the Appellant relied on the filed heads of argument dated 23 rd December 2022, which he augmented with brief oral submissions. In support of the first ground of appeal, it was argued that -J13- the evidence presented before the lower court demonstrated that he was not privy to the arrangement between his late father and the Respondents concerning the bus. 5.2 In support of ground two, it was posited that the Appellant presented his passport as evidence both before and during the trial to establish that he was outside the jurisdiction during the discussions about the bus. Despite this, the lower court dismissed this pivotal evidence. 5.3 Coming to ground three, it was argued that when the Appellant relocated to new premises, he had no knowledge of the bus's condition or location because it did not fall within the scope of his personal work. The bus was parked at his house purely due to space availability. 5.4 Regarding ground four, it was contended that the law is clear regarding the estates of deceased persons and claims against them. It was argued that the Appellant was not the administrator of the deceased and bringing a claim against him was wrong. Furthermore, the • -J14- Respondents failed to prove that the Appellant was solely responsible for the bus in question. 5 .5 During the oral submissions, Counsel referred us to the case of Daniel Peyala v ZCCM2 for the position that only parties to a contract can be sued. Counsel submitted that the contract was not with the Appellant but the deceased and this is admitted by the Respondents' in their own pleadings. 5. 6 Further reliance was placed on the case of Chibwe v Chibwe3 that findings of the court must be based on evidence on the record. 6.0 ARGUMENTS OPPOSING THE APPEAL 6.1 The 1st and 2 nd Appellants did not file any arguments opposing the appeal. As a result, they were prevented from participating in the hearing. 7.0 ANALYSIS AND DECISION OF THE COURT 7. 1 We have considered the evidence on record and the submissions by Counsel for the Appellant. We have also considered the impugned Judgment. In our view, the learned Judge appropriately identified the key issue for determination namely; whether the Appellant was -JlS- responsible for the bus and its subsequent disappearance. 7 .2 In civil matters, it is well established that the burden of proof rests with the party making the allegation. This principle ensures that the party asserting a claim provides sufficient evidence to support their case. The standard for the burden of proof in civil cases generally requires a balance of probabilities, meaning that the evidence must show that it is more likely than not that the claim is true. This principle has been affirmed in various cases including Wilson Masauso Zulu v Avondale Housing Project Lirnited5 and Khalid Mohamed v The Attorney-General1. 7 .3 From the evidence on record, it is undisputed that when the bus encountered mechanical issues, the 2 n d Respondent sought assistance from the deceased, given that both the deceased and his son, the Appellant, were involved in mechanics. The bus was transported to the Appellant's house in 2013, where it remained. The deceased requested the Appellant to inspect the bus and the Appellant subsequently directed his mechanics to assess it. The Appellant then communicated that the .:; -J16- cost of repairs would be Kl0,000.00. The bus was parked at the Appellant's house for an extended period until 2016 when it disappeared and its whereabouts remained unknown. 7.4 Grounds one, two, and three of the appeal are interrelated, as they all focus on the Appellant's contention that he should not be held accountable due to his alleged lack of involvement or presence during the negotiations and discussions concerning the bus. 7.5 The Respondents allege that there was a verbal agreement with the deceased, where the deceased would repair the bus, and the 2 nd R e spondent would reimburse the repair costs. The Respondents claim that the bus was handed over to the deceased and subsequently to the Appellant for assessment and repairs. The Appellant, however, denies knowledge of any such agreement, asserting that he was not privy to the arrangement between the Respondents and the deceased concerning the bus. 7 .6 In our view, the evidence on record seems to contradict the Appellant's assertions. There was indeed an informal arrangement between the deceased and the 2 nd • -Jl 7- Respondent regarding the repair of the bus. This arrangement was, however, known to the Appellant, who took some actions, such as assessing the bus and discussing potential repair costs, clearly demonstrating his involvement in the matter. The Appellant's claim of ignorance regarding the agreement does not absolve him of responsibility, especially given his acknowledged actions and the fact that the bus was in his possession for a significant period. 7. 7 Further examination of the proceedings reveals that after the deceased's death, there were discussions about selling the bus. During these discussions, the Appellant informed the Respondents of a potential buyer, but the Respondents declined the offer, deeming it too low. This interaction highlights the ongoing involvement of the Appellant in matters concerning the bus. 7.8 Subsequently , when the Respondents further inquired about the whereabouts of the bus, the Appellant and his brother, DW3, informed them that a tree had fallen on the bus and it was in a poor state. DW3 then offered K15,000.00, as compensation for the damage. Additionally, the Appellant himself agreed to pay • -Jl8- Kl ,000.00 per month for the bus, claiming that this payment was intended to maintain peace within the family. Moreover, the Appellant's aunt even offered title deeds for a house as compensation. In our view, these actions by the Appellant and his relatives suggest an acknowledgement of responsibility for the bus. 7. 9 Based on the foregoing, it is clear that the weight of the evidence strongly supports the Respondents' claims that the Appellant was responsible for the bus and had an obligation to either return the bus in its original condition or account for its current state. The verbal agreement between the deceased and the 2 nd Respondent, combined with the actions taken by the Appellant and his relatives, indicates a recognised obligation to repair and maintain the bus. Therefore, the Appellant's failure to fulfil this obligation and adequately account for the bus justifies the Respondents' demands for compensation. Therefore, we find no merit in grounds one, two and three. 7 . 10 Ground four addresses the Appellant's argument regarding his legal standing, wherein he contends that • -J19- he should not be held accountable as he is not the appointed administrator of the deceased's estate. 7. 11 In our view, this case extends beyond the mere question of estate administration. The core issue is the Appellant's accountability, particularly given that he had physical possession of the bus and was involved in its assessment and potential repair. Moreover, the Appellant's failure to return the bus or provide a satisfactory explanation for its condition and whereabouts weakened his defence. Therefore, we find the argument that the Appellant cannot be sued because he is not the administrator to be unpersuasive. We equally find no merit in ground four. 7 .12 In light of the foregoing, we uphold the decision of the lower court, holding the Appellant responsible for the failure to return the bus, based on the evidence of his involvement and control over the vehicle. Accordingly, the Appellant is ordered to pay the Respondents KS0,000.00, as ordered by the lower court. 7. 13 However, given the circumstances and to allow the Appellant sufficient time to raise the funds, a moratorium of 90 days is granted for payment. The -J20- Appellant must settle the amount in full within this period. 8.0 CONCLUSION The appeal 1s unmeritorious and is accordingly dismissed. Each party shall bear t eir own costs related court. J. CHASHI COURT OF APPEAL JUDGE C. K. MAKUG U COURT OF APPEAL JUDGE