Nizar Distributors Ltd v Premium Oil Industries Ltd (In Receivership) (Appeal 93 of 2000) [2001] ZMSC 150 (19 October 2001)

APPEAL NO. 93 OF 2000 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE & LUSAKA BETWEEN: NIZAR DISTRIBUTORS LTD APPELLANT and PREMIUM OIL INDUSTRIES LTD RESPONDENT (In Receivership) CORAM: Ngulube CJ, Chirwa and Muzyamba, JJS on 7th November 2000 and 19th October 2001 For the Appellant: For the Respondent: Mr. Muneku; Charles & Charles Mr. D. K. Kasote; Mwanawasa & Co. JUDG MENT Chirwa, J. S. delivered judgment of the court: - This appeal was heard before the demise of our brother Muzyamba, J. S. this judgment is therefore a judgment of the majority. This is an appeal against the judgment of the High Court delivered after the respondent adduced its evidence in support of its claim for K23,904,444.21 being the value of goods delivered by it to the appellant as a retailer and as agent. From the pleadings and evidence the learned trial judge found that the parties entered into a distribution agreement under which the appellant sold the respondents goods to customers on the Copperbelt at a commission. The learned trial Judge found that at the commencement of the action the appellant had sold goods worth K36,197,675.21 and after deducting commission of K12,295,231.00 the balance due and un remitted to the respondent was : J2 : K23,904,444.21 that being the amount claimed. The learned trial Judge considered the defence of the appellant which mainly evolved on the interpretation of the distribution agreement especially clause 7.0 which reads: - “7,0 The distributor shall be entitled to the following commission on all 6% ” From the defence as pleaded, the appellant wanted the respondent to account for all sales conducted on the Copperbelt not only by itself but other distributors and that it was entitled to commission on sales conducted by other distributors as well. The learned trial Judge found that the argument that the appellant was entitled to commissions on sales conducted by other distributors unattainable and that for instances of the sales for which remittance was claimed, there was no defence and she entered judgment in favour of the respondent with interest. There were three grounds of appeal which were fully supported by written heads of arguments on which Mr. Kasote relied. The first ground of appeal was the learned trial judge ought to have granted the application for an adjournment which was founded upon good grounds and that an order for costs would have sufficed to compensate the respondent. What we can decipher from this ground of appeal is that good ground upon which the adjournment should have been granted was that the advocates had just been instructed and that they had not had good time to prepare. The learned trial Judge refused to accent to the application for an adjournment. The case seems first came up for trial on 24th August 1999 when the appellant was represented by a different firm of lawyers. The matter was then adjourned and it only came before Court on 15th February 2000, an adjourned period of five months. During the adjourned period the appellant sat back only changed advocate four days before commencement of the trial. In : J3 : refusing an application for an adjournment, the learned trial judge observed that the five months adjournment, which adjournment was done in the presence of the then advocate for the appellant and in the absence of the advocate for the respondent and she was of the view that there was too much laxity on the part of litigants. We cannot fault the observations made by the learned trial judge. Litigants should not exhibit any laxity in prosecuting their cases. In this case it was clearly the laxity of the litigant itself without attributing any fault on its advocates. If it were the fault of an advocate the Court may consider the prejudice and damage to the client and may reluctantly adjourn. But even then there ought to be good reasons or else the litigant should have recourse to his lawyer. There are no merits in this ground and it is dismissed. The second ground is akin to the first ground. The ground of appeal was that the learned trial judge misdirected herself in law in refusing to amend the defence and therefore it was imperative to grant an adjournment in consequence of the plaintiff asking for it and the Court in the result arrived at an erroneous conclusion. Our remarks and those of the learned trial Judge on the first ground of appeal equally apply to this ground of appeal. The months living in hibernation works against the appellant. This ground of appeal is also dismissed. The third ground is that the learned trial Judge erred and misdirected herself in not considering or fully considering the submission advanced for the appellant particularly on the issues that PWTs evidence was largely hearsay and should not be acted upon. First of all we must point out that the Court is not bound by the submissions. Submissions are there to try to persuade the court to accept the party’s understanding of the case and law. The decision of the Court is based on the evidence before it. On the argument that the evidence of PW1 was largely hearsay, the case involved companies and officers testify either from personal knowledge or from the company documents. In this particular case the : J4 : respondent is under receivership and this places PW1 in a special position. He had to depend on the company's record and his evidence cannot therefore be regarded as hearsay. This limb of the ground cannot stand. The second limb of the ground is that under clause 7 of the distribution agreement the appellant was entitled to commission on all Copperbelt sales. We are unable to agree with the interpretation of this clause. The distribution agreement was not an exclusive distribution agreement so as to mean that the appellant was the sole distributor of the respondents’ goods on the Copperbelt. If it was meant to be so, that should have been specifically spelt out. Our understanding of the clause is that the appellant was entitled to commission if he sold the goods on the Copperbelt. He would not be entitled to any commission if he sold the goods anywhere, where may be the market was easier. The appellant, therefore, cannot claim commission on sales conducted on the Copperbelt by other distributors. All grounds of appeal in this case fail. The appeal is dismissed with costs, the costs of which in default of agreement to be taxed. M. M. W. S. NGULUBE CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE