Sabi v Thornhill Boarding and Day School (Appeal 34 of 2014) [2015] ZMSC 39 (27 July 2015)

1\ IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 34/2014 SCZ/8/308/2013 BETWEEN SAMUEL MWAPE SABI APPELLANT AND THORNHILLBOARDING AND DAYSCHOOL RESPOND NET Coram: Chibomba, Hamaundu and Kaoma, JJS 15th April, 2015 and 27th July, 2015 For Appellant: In Person For Respondent: Mr. M. C. Hamachila - Iven Mulenga and Company JUDGMENT Kaoma, JS, delivered the Judgment of the court. Case referred to: 1. Salomon v Salomon (1897) AC 22 The appeal is against the judgment of the High Court dated 20th August, 2013, dismissing the appellant's claim for payment of the sum of K205,800,000.00 for the hire of a Mitsubishi Rosa bus registration No. RAY 2004. Initially, Mota Investments Limited (2nd • J2 defendant in the court below), was the 2nd respondent to the appeal, but later, it was removed upon the appellant informing the Court that the appeal is only against Thornhill Boarding and Day School. The appellant has argued two grounds of appeal after three of the initial five grounds, that is, grounds 1, 2 and 4 were expunged from the Memorandum of Appeal for offending Rule 58(2) of the Supreme Court Rules, Cap 25. We shall now refer to grounds 3 and 5 as grounds 1 and 2 respectively. Ground 1 alleged that the trial judge failed to recognise the business pattern established between the two parties in relation to the payment system while ground 2 alleged that the judge glossed over the appellant's evidence in preference to the respondent's evidence which was not within the respondent's defence. In support of ground 1, in his heads of argument, the appellant first quoted the trial judge's finding that documentary evidence showed that prior to the period August, 2009 and April, 2011, which was in issue, the appellant rendered invoices to the respondent for use of the bus and in turn, the respondent paid for the services utilised but there was no evidence adduced of any further invoices or payments between August, 2009 and 2011. J3 The appellant then submitted that perusal of the documentary evidence on the payments made by the respondent to the appellant will show that no invoices were issued for those payments; and that the business pattern established between the parties was rate per day for designated routes with extra trips to be agreed when need arose. He further submitted that the bus was in the respondent's custody from the initial agreement until it was withdrawn in April, 2011; hence, there was no difference in the payment system even in the period August, 2009 to April, 2011. It was also argued that the absence of invoices for the period m issue cannot defeat the running contract between the parties since even for the previous period, there were no invoices issued but the respondent would pay based on the agreed rate per day and the number of days the bus was used from the last payment. On the other hand, Mr. Hamachila submitted that if the business pattern was a rate per day for designated routes with extra trips to be agreed when need arose, then evidence of the monthly or per term invoices should have been produced to prove that there was a contract for the period August, 2009 to April, 2011. It was argued that the respondent did, however, produce evidence in form , J4 of payment vouchers and a letter to show that there was a contract between itself and Mota Investments between 2010 and 2011. With regard to ground 2, we wish to state from the outset that we shall not consider the arguments the appellant has included in the heads of argument filed on 27th April, 2015 which were meant to support the expunged grounds 1, 2, and 4, as doing so would be as good as allowing the appellant to argue the expunged grounds. As we see it, the gist of the appellant's argument on this ground is that since the respondent did not plead in its defence that it hired the bus in question from Mota Investments, the trial judge should not have allowed the unpleaded defence; and that even assuming the judge was correct in admitting the unpleaded defence, there is no tangible evidence to show the existence of a contract between the respondent and Mota Investments in respect of the bus which belongs to the appellant. It was argued that if indeed, there was such contract, the respondent should have called a witness from Mota Investments to testify on the existence of such a contract, but what is on record are mere unsupported assertions full of contradiction. We were referred to the witness statement of DWl, particularly paragraphs 15 and -, • J5 16 where she stated that the appellant could not assert a contract with the respondent when for a period of 6 years, the bus was being used by the respondent on hire from Mota Investments and the appellant did not claim any payment for the hire of the bus. According to the appellant, the 6 years being referred to runs from 2004 to 2011 when he withdrew the bus from the respondent and over the same period, the respondent claims to have been making payments to Mota Investments. The appellant submitted that Mota Investments was not in existence in 2004 and that the respondent had always made payment to the appellant through his business name, RAYSAM Enterprises. That the respondent's assertion that it made payment to Mota Investments for use of the bus cannot be sustained because Mota Investment had its own fleet of buses as seen from the invoices given to the respondent. That the payments only covered the month of December, 2010 and January, 2011 and no evidence was led that the payments made by the respondent to Mota Investments were for the use of the appellant's bus; and all the alleged payments to Mota Investments were not acknowledged as having been received. In conclusion, it was argued that the evidence in support of the unpleaded defence of J6 the respondent having made payments to Mota Investments is so weak and unsupported such that it was a misdirection for the trial judge to have upheld it. Conversely, Mr. Hamachila submitted that the respondent adduced evidence showing that there was a contract between the respondent and Mota Investments which evidence was not objected to by the appellant during trial though it raised a defence which was not pleaded, and as such, was properly allowed by the court, which also properly directed itself. We have considered the arguments on the two grounds of appeal. We have also perused the whole record of appeal and the judgment appealed against. We propose to deal with both grounds of appeal simultaneously as they are related. It is quite clear that in considering the question of whether or not there was a contract between the appellant and the respondent for the hire of the bus, the learned trial judge looked at the documentary evidence before her. According to the judge, the documentary evidence showed that prior to the period in issue, that is August, 2009 and April, 2011, the appellant rendered invoices to the respondent for use of the bus and the respondent in turn paid • J7 for the services utilised. The trial judge also found that there was no evidence adduced of any further invoices or payments between August, 2009 and April, 2011. The appellant has criticised the judge for the finding that he rendered invoices to the respondent for use of the bus. We find this criticism baseless and unfair because in paragraph 5 of his statement of claim, the appellant clearly asserted that invoices were issued to the respondent and that the same were settled by the respondent but leaving an outstanding bill of K205,800,000.00 for the period August, 2009 to April, 2011. The fact that the appellant chose not to produce the invoices does not negate the fact. Therefore, it cannot be true as argued by the appellant that even for the period prior to August, 2009 to April, 2011, there were no invoices issued but the respondent would pay based on the agreed rate per day and the number of days the bus was utilised from the date of the last payment. From the appellant's argument, the alleged business pattern established between the parties was rate per day for designated routes with extra trips to be agreed when need arose. However, in his evidence in cross-examination, the appellant agreed that he only • J8 wrote to the respondent on 9th August, 2011 over the unpaid amount of K205,800,000.00. He did not allude to the alleged business pattern or say that there was no need for him to issue invoices to the respondent. When it was put to him that during the period of 3 years from 23rd January, 2008 to 9th August, 2011 no reminders were issued, his response was that there were reminders. However, he did not produce a single written reminder. We note also that while in paragraph 6 of his witness statement, the appellant said the respondent as far back as September, 2004 had been making payment for the bus to his business name called RAYSAM Enterprises and all various correspondences had been through RAYSAM Enterprises, he did not mention the business pattern of paying without invoices being issued. On the basis of all the foregoing, we decline to accept that such business pattern existed between the parties. Of course, because of the payments that were made by the respondent to RAYSAM Enterprises, even though there was no written contract between the parties, the trial judge inferred that a contract existed between the appellant and the respondent for the period 2004 to 2008. • • J9 But for the period 2009 to 2011, the judge refused to infer any form of contract between the parties for the reason that the appellant had not adduced evidence of any invoices issued to the respondent except for the invoice dated 9th August, 2011 showing a period of 21 months' use of the bus and that no monthly or per term invoices were produced or issued during the period in issue. In contrast, the trial judge believed the respondent's evidence showing that it paid to Mota Investments for the transport services incurred between 2010 and 2011. The trial judge also referred to the letter written to the appellant by DWI wherein she referred to a letter written by the appellant to the respondent where he stated that he was withdrawing the bus that went to the school through Mota Investments from rendering services. On this evidence, the judge concluded that the appellant had a contract with Mota Investments and not with the respondent and that he should follow up all issues pertaining to his bus with Mota Investments. According to the judge, the letter referred to above confirmed that during the period in issue, the contract was between the respondent and Mota Investments which was also confirmed by • • the payment vouchers issued and paid to Mota Investments for transport services for the bus, which evidence was never disputed. Furthermore, the trial judge referred to the appellant's evidence in cross-examination that he sued both the respondent and Mota Investments because both could be liable because they had the same director; and that Mr. Chungu, the proprietor of Mota Investments was a majority shareholder m the respondent company, so liability should attach to both. According to the judge the respondent could not be liable for an agreement entered into by Mota Investments merely because of the majority shareholder being the same. She quoted the famous case of Salomon v Salomon] on the legal personality of a company and rightly concluded that the respondent could not be held liable for the liabilities of Mota Investments, if any. It is the appellant's argument that the trial judge should not have given much weight to this evidence as it was based on a defence which was not pleaded. Although we expunged ground 2 from the memorandum of appeal, it is quite clear and this is accepted by Mr. Hamachila, that the respondent did not plead that it had a contract for the hire of the bus with Mota Investments. • •, J11 However, as rightly submitted by Mr. Hamachila, evidence of unpleaded matters was let into evidence and was not objected to, so the learned judge was obliged to consider the evidence. The only question was the weight to attach to that evidence. As we have already said, the trial judge believed the respondent's evidence over that of the appellant because there were no invoices issued or payment vouchers for the period in issue to support the appellant's claim against the respondent. As a result, we do not fault the trial judge for believing the respondent's evidence; and we do not accept the appellant's argument that the judge glossed over his evidence. The burden was on the appellant to prove on a balance of probabilities that the respondent owed him the sum claimed for the period in issue but he failed to do. The appellant spiritedly argued that he withdrew the bus since the contract was between himself and the respondent. The fact that he withdrew the bus is not disputed. However, the appellant did not produce the letter written to the respondent to withdraw the bus. That letter, according to DWl, indicated that the bus went to the school through Mota Investments. It is also quite clear that the appellant sued both the respondent and Mota Investments and he • • • H2 conceded at the hearing of the appeal that he has a default judgment against Mota Investments for the same amount claimed against the respondent, but he did not explain why he has not executed or enforced that judgment which is still valid. On the whole, we find and hold that the trial judge was on firm ground when she dismissed the appellant's claim against the respondent. Therefore, the appeal fails and is dismissed. The costs shall followthe event and are to be taxed if not agreed. ~.c; H. CHIBOMBA SUPREME COURT JUDGE c;jf5>L E. M. HAMAUNDU SUPREME COURT JUDGE _~.~ c-:::::C__ R. M. C. KAOMA SUPREME COURT JUDGE