Ngolofwana v Phillips Electrical Zambia Ltd (SCZ Appeal 102 of 1998) [1999] ZMSC 125 (2 March 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No.102 OF 1998 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: SAMUEL NGOLOFWANA APPELLANT AND PHILLIPS ELECTRICAL (Z) LIMITED RESPONDENT Coram: Ngulube C. J., Sakala and Muzyamba JJS 2nd December 1998 and 2nd March 1999 For the Appellant: V. K. Mwewa, V. K. Mwewa and Company For the Respondent: H. C. Banda, Ellis St Company JUDGMENT Muzyamba, J. S. delivered the judgment of the court. This is an appeal against a decision of the High Court dismissing the appellant's claims for damages for conversion of house No.7828 Lubuto, Ndola and its market value. Ine facts of this case are that Lawrence Ngolofwana, deceased owned the house in dispute. He was married to Mika Mulenga. They divorced shortly before he died. Upon his death the appellant was appointed Administrator of his estate. The appellant then rented the house to the respondent. The house was occupied by an employee of the respondent, Ringson Nkandu who eventually bought it wich a loan from the respondent. The house was again sold by the respondent to Bernard Mandandi. At the time Mandandi bought the house Ringson Nkandu was still in occupation. To obtain possession of the house Mandandi brought an action against Nkandu and on the evidence before him Chirwa J, as he then was, ruled that Mandandi was the lawful owner of the house having bought it from the respondent and granted Mandandi vacant possession. Later the appellant brought an action against the respondent for damages for conversion of the house and its market value. In addition to viva voce evidence there was documentary evidence before the learned trial Judge and in dismissing the Claims this is what he had to say at page 9 of the record: "After carefully addressing my mind to the whole evidence and submissions, I find that the Plaintiff is challenging the legality of che sale of the house by Phillips co Mr. Bernard Mandandi. 1 have had recourse and judicial notice of the Ruling in J2 : Cause No.1987/HN/513 wherein the High Court Judge then found that Bernard Mandandi was the rightful owner of the house. The effect of this finding is that it legalises the sale of the house to Mandandi, i.e. that he got good title to the house* And yet these proceedings before us are challenging that same finding of the High Court Judge who had the same jurisdiction as mine. The effect of this Court granting the Plaintiff's claim would be to act as a Court of Appeal over this Court's own decision. The proper course should have been to appeal to the Supreme Court against this Court's decision that Bernard Mandandi had good title to the house. In the result, I dismiss the Plaintiff's claim with costs to the Defendant." The appellant then appealed to this court on the following grounds: (a) That the Honourable trial Judge misdirected himself in law and fact when he failed to rule whether on the evidence before him the respondent had committed conversion. (b) The Honourable Trial Judge misdirected himself in law and fact when he ruled that the Appellant would not challenge the sale of the House to Mandandi as the Honourable mr. Justice Chirwa having the same jurisdiction with the trial court had ruled that the sale was legal. Mr. Mwewa submitted that the learned trial Judge erred by failing to make a finding on the appellant's claims. That he did not resolve the issue of whether or not on the evidence before him the respondent had committed the tort of conversion. That he simply relied on the ruling of Chirwa J, as then was, in a different cause. That in so doing he erred because the purpose of producing in evidence that ruling was not co challenge the legality of the sale of the house to Mandandi but to prove that the house was sold by the respondent to Mandandi and that in doing so it had committed the tort of conversion. That had the learned trial Judge addressed his mind to the issues before him he would have found for the appellant on botn Claims as there was documentary evidence to support the iopellant‘s casa. In response, i:r. Ban.ja sud^itied li’tt the real Issu? was who was tne true owner of tne abuse before it was solo to Hr. Was it tn* App^llint or Mika Muion^i. That the documentary evidence on record showed that Mika Rm Lene a was the true ^nar wd that sne sold It to Nka net ano that the respondsn; assisted hkaido fi<><mciuily to buy the house and tint to recover th a .toney frezni skandu the rsspoMHti ^rely factUla ted the sale of ths house to hr. Mandandi. That if there was any conversion at all than it was usd bv Hika ^wlonga and Uuic the respondent could act oe held liable for bar tortious act. That the learned trial Judge was therefore ri^nt in nis decision. He have considered the submissions oy ooU learaeu Counsel and the evidence on record, in particular the- land record and tna juu^eiit of tna local Court in a Civil Suit between the appellant and Mika Mulenga wnlch were tendered in evidence in the court below but not included in the record of appeal for reasons best known to the appellant. Dh.1 said in evidence that tna house was sold by Miki i&l&ivja co Rlngson Kkmou. That she oroduced a local court Jud^nt und a Land Record Card to prove her ownersnip of the bouse. Document <<o.l7 in the (defandant’s) -ispondent’s bundle of documents is a Local Court certificate of judgment in the •■natter of ownership of toe nouse between the appellant and Mi<a Mulsnga. The decision was rendered on 4th February 1932 but the certificate was officially steeped on 9th February 1982. The court decided cnat tne house belonged to Mika MuUnga. Tne land kecord at pa$e 12 of the saae oundie snows that following tn* local -court decision ownership of the housi i'us transfsrrad fro-n the appellant into the of Miki Muienga on 8th Fobruiry 1232. At pages 13-2C is 'lixa r;ulen3a‘s application to Mak urban District Council to sail toe house to lUnjson ^kandu. It is dated 16th March 1i82. The application was approved and on 17tn Maren 19^2 ownership of the nouse was transferred from Mika Muiwa to Hingson Nkandu. This is ciear at page 15 of toe sms bundle of documents. The entry snows that tne house was encumbered to the respondent for a loan* b.‘ documents reiiau -po.n uy .tr. M«ewa saow that the nuusa was sold by the respondent co nr. I4andandi. There is no doim about this, n?re is also no dpuo> Lbsi cuo respondent, nust nave sold the house as a <rtga'jee. The matter aoes no; eau nere, Tae real Issue, as Hr. danda rijutly put it, is who was th^ true owner of tiie nuuie. Was it cne appellant or Hika Muienga. The land kecorc h%vs Mferr^s to speaks for itself* The true owner of ine house before it was sola Jagson r«andu : J4 : was Mika Muienga and not the appellant. There was therefore no conversion committed either by Mika i'iulenga or the respondent and we have no doubt that had the learned trial Judge considered the issues before him instead of simply relying on the ruling of Chirwa J, as he then was, he would have come to the same conclusion. There is no merit in the appeal. It is dismissed with costs to be taxed in default of agreement. M.m. S. W. ngulube CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE