Shire Transport Limited v The Attorney General (SCZ APPEAL NO. 24 of 1991) [1991] ZMSC 54 (4 December 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 24 of 1991 HOLDEN AT NDOLA (Civil Jurisdiction) i ( SHIRE TRANSPORT LIMITED Appellant AND THE ATTORNEY GENERAL Respondent CORAM: Ngulube D. C. J., Gardner A. J. S, & Sakala J. S. 10th September and 4th December 1991 A» Chiinga of Chitabo and Co. for the appellant R. 0. Okafor, Assistant Principal State Advocate for the respondent .. ..... ................ : - • ' t JUDGMENT Gardner, A. J. S. delivered the judgment of the court. On the 10th of September, 19’91 we allowed this appeal and said ’ ■' » * ' ' / 'A that we would give reasons later. We now give those reasons. This is an appeal from an order of a judge of the High Court refusing to make an order preventing the removal of a vehicle from Zambia. ; : • ■ The facts of the case are that the appellant purchased a Mercedes Benz truck and trailer from the owner, Abdinoor. The truck had been involved in a traffic accident in Zambia having come from Kenya. The vehicle .was paid for by K100,000.00 cash and one Toyota Cressida car. At the time of the transfer Abdinoor handed over Kenyan blue books relating to the truck and trailer. These blue books were submitted to the local council and Zambian blue books were issued to the appellant. The appellant paid customs duty of K593.00. The vehicle was then repaired at a cost of <1,100,000.00 the total cost to the appellant was K2,400,000.00. In June, 1991 the appellant was informed by the police that they had received information from Kenya that the vehicle was stolen following : J2 : ' 5 a false insurance claim made by Abdinoor. The police then impounded the vehicle and the appellant issued a writ against the Attorney-General of Zambia claiming a declaration that the appellant is the lawful owner of the truck and trailer and claiming damages for detinue. The managing director of the appellant company was informed that the police intended to send the vehicle to Kenya at the request of Interpol, and, in order to prevent the vehicle leaving the jurisdiction, application was made to the High Court under Order 27, Rule 3 of the High Court Rules (Cap 50) for preservation of the property referred to in the main action. At the hearing of the^application before the High Court the appellant submitted an affidavit sworn by the managing director giving the details which we have recited in this judgment. The State did not produce an affidavit but relied on a statement from counsel stating that information had been received from the police in Kenya that the vehicle was stolen in Kenya and was required there. There is no information as to what court proceedings have taken place or are pending in Kenya and in the absence of such evidence it is clearly preferable that pending the trial of the main action in this case the vehicle in question should remain In this country. Ho doubt at the time of the main action the State will be in a position to inform the court if there is any judgment in Kenya which should be respected by our courts. In the meantime the application made by the appellant is a reasonable one especially as Mr. Chiinga has indicated that the appellant has no objection to the vehicle's remaining in the custody of the Zambian police pending trial. The appeal is allowed and we order that the vehicle must not be allowed to be taken from the jurisdiction of this country pending the -•■V trial of the appellant's claim for a declaration and damages for detinue. Pending such trial the vehicle NO. AAC 801 and trailer No. AAC 802 will remain in the custody of the Zambian Police, c ' : J3 M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE *••• 8. T. Gardner AG. SUPREME COURT JUDGE SUPREME COURT JUDGE