Picla Women Empowerment Limited v Barbara Kango (22/HN/231) [2023] ZMHC 51 (29 June 2023)

BETWEEN PICLA WOl\llEN EMPOWERMENT LIMTED PLAINTIFF AND BARBARA KANGO DEFENDANT Before the Hon. Mr. Justice D. IVIusonda . For the Plaintiff : Ms. T. Chikubi, Messrs D. S. Libati Practitioners Legal For the Defen dant: No appearance CASES REFER1RltD TO: ·. ', ·:_·\t'.'/~,~~·,. ,: . t1:\ :-.... · .,, ,. J,...~ . . ,;• •· ,. J.~./-.:•; 1. Zulu vs A vondale Housing _P;r9j~¢.f L,iifliJed (1982) Z. R 172 . . . .. :,.-:~~ .. :~;<¥·· Bon~nza', . ;::, · c;'a_s h Express Limited 2. Malumani vs CAZ/ 08/ 330/ 2021 Introduction J2 1. On 23rd June, 2022, the plaintiff caused to be issued out of the Ndola District Registry a writ of summons and accompanying statement of claim for the following reliefs: (a) (b) (c) (d) Payinent of the sum of ZMW583.338. 72 In terest Costs Any other relief the Court deems fit 2. The statement of claim alleges that the plaintiff is a Company Limited by guarantee and involved, inter alia, in the business of empowering women's businesses. It is further alleged that the defendant was a member of two village banking groups created under the auspices of the plaintiff, n amely women for women smart savers and creative sn1art savers. 3. That as a member of creative smart savers group, the defendant obtained a loan of ZMW180, 000 which she was supposed to repay within th:t_"ee months; That the defendant also got a loan of ZMW 200,000 from women for women srnart savers which was repayable in three months. I I I I I I I . I J3 4. It is a sserted the defendant failed to pay back the loans obtained and on 1st September, 2020 the defendant acknowledged her indebtedness and committed to pay back ZMW253,000 in three months; that on 14th September, 2020 , the defendant acknowledged owing ZMW3 l l ,300 under women for women smart savers and undertook to pay back the money in three monthly installments. 5. That as at December, 2020, the defendant owed ZMW583,558. 72 under the two saving groups and has continued to ignore, refuse or neglect to settle the amount owing. It is alleged that this has caused the plaintiff to suffer loss and damage. 6. The defendant filed a defence in which it was largely conceded that the defendant obtained the alleged sums of money and later on 1st September, 2020 and 14th September , 2020 signed acknowledgements of debt documents. She alleges that the documents were signed under a genuine mistaken belief that it was part of the village bank ing groups. 7. According t o the defendant if it breached any contractual term , it was with the village banking groups and not the J4 plaintiff. The defendant further alleged the plaintiff could not con duct any business of lending money without the requ isite licence and that the plaintiff's director had been using the plaintiff to engage in money laundering, tax evasion and charging interest as high as 120%. 8. A reply to the defence was filed in which the plaintiff dispu ted being a member of any village banking groups. It also den ied being in the business of lending money or providing any financial services. 9. On 28th March, 2023 I heard the matter and only the plaintiff was present. On being satisfied that the defendant was aware of the matter, I heard the plaintiff's witness. 10. Luch inde Tembo Chilinda was PWl. She relied on her witness statement filed into Court on 25th January, 2023. Throu gh the witness statement, she told the Court that she is a guarantor in the plaintiff company. The plaintiff was formed for t he purposes of empowering women and for this purpose formed a number of village banking groups to help women have access to funds in their businesses. The defendant joined the plaintiffs two village banking groups JS and obtained a loan of ZMW180,000 under creative smart savers groups and ZMW200,000 under women for women smart savers group, both amou nts payable in three months. 11. The defendant was unable to repay the amounts in three months and on }st September,2020 signed an acknowledgement of the debt of ZMW253,000 under creative smart savers, and on 14th September, 2020 acknowledged owing ZMW31 l ,300 and undertook to pay back both loans in three months. She did not; and by December, 2020 she was owing ZMW469,886.92 to creative smart savers; while her savings stood at ZMW81,050. 12. Under won1en for women savers, her debt was . interest was ZMW353 ,471.80 while her savings and ZMW158 ,750 . When her savings and interest were accounted for, the defendant's total indebtedness to the two village banking groups was ZMW583,558. 72. 13. With th e one witness, the plai~tiff closed the case. It is for the plaintiff to prove its case notwithstanding the non appearance of the defendant. In Zulu vs Avondale Housing Project Limited1 , the Supreme Court put it thus: J6 " A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponents' case." 14. The evidence is plain that the plaintiff a Company Limited by gua rantee caused to be formed village banking groups namely creative smart savers and women for women smart savers. The defendant was a member of the two village bankin g groups and as a member contributed some money and obtained loans from the groups. By December, 2020, her savin gs and interest in both saving groups was ZMW239,800. The defendant's total loan amount outstanding stood at ZMW823, 358.72. Less the defendant's interests and savings, the total debt was ZMW583,558.72. 15. On 1st Septem ber, 2020, the defendant acknowledged owing creative smart savers group ZMW253,000. She undertook to pay th e debt in 3 equal monthly installments of ZMW85,000. 16. Sin1ilarly on 14th September, 2020 she acknowledged owing wo1nen for women smart savers the sum of ZMW311,300 J7 and promised to pay it back 1n three equal monthly installment s of ZMW103,710. 17. In both cases, she also pledged House No. CH2241, Chifubu as collateral. 18. In defence the defendant did not dispute owing the plaintiff but alleged the plaintiff was illegally conducting the business of lending money and charging exorbitant interest. She also alleged the plaintiff was involved in tax evasion and money laundering activities. She did not attend Court to substantiate her assertions. 19. Nonetheless, the evidence is plain that the plaintiff is a company limited by guarantee involved in the business of encouraging entrepreneurship and saving among its women members. According to the constitution of the plaintiff, document No. 1 - 5 of the plaintiffs bundle of documents, the core business of the plaintiff is promotion of saving, networking and business entrepreneurship among women who are encouraged to save and borrow from the women saving groups under the plaintiffs auspices. 20. In casu, therefore, I am satisfied that the defendant owed JS the plaintiff s two village banking groups the claimed amount of ZMW583,338.72 . She acknowledged owing the debt on 1st and 14th September, 2020 when she signed document s No. 6 and 7 of the plaintiffs bundle of document s. According to Chitty on contracts, general principles, Vol. 1 at page 583: " When a document is signed, the parties are bound by the terms of that document whether or not they had been ignorant of their precise legal effect". 21. The Court of Appeal in Malumani vs Bonanza Cash Expres Limited2 had the following to say: "Where the agreement of the parties has been reduced to w riting and the document containing the agreement has been signed by one or both of them, it is well established that the party signing will ordinarily be bound by the terms of the written agreement whether or not he has read them or not. He is ignorant of their precise legal effect." J9 In casu, I a m satisfied that the defendant is owing the plaintiff's saving groups and the plaintiff is entitled to the sum claimed ofZMW583, 338.72. 22 The defendant has 90 days to pay the debt and in default the plaintiff will have the liberty to sell the collateral: House No. CH 2241 Chifubu. The sum will carry interest at the lending rate as determined by the Bank of Zambia from writ to final settlement. costs will follow the event. DELIVERED 1lHIS 28TH DAY OF JUNE, 2022. ·······~~~~~ ...... . HIGH COURT JUDGE