Suhail International Ltd v J.M Mwamulima Properties Import and Ors (Appeal 108 of 2015) [2018] ZMSC 574 (21 June 2018)

J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 108/ 2015 SCZ/8/031/2015 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: SUHAIL INTERNATIONAL LIMITED APPELLANT AND J. M MWAMULIMA PROPERTIES IMPORT AND EXPORT LIMITED LAFARGE CEMENT ZAMBIA PLC 1st RESPONDENT 2nd RESPONDENT CORAM : Chibomba, Hamaundu and Kaoma, JJS On the 7th October, 2015 and 21st June, 2018 For the appellant : Messrs Ranchhod, Chungu Advocates For the 1st respondent: Mr F. Besa, Messrs Besa Legal Practitioners For the 2nd appellant : Mr N. Nchito, S. C., Messrs Nchito and Nchito JUDGMENT Hamaundu, JS, delivered the Judgment of the court. Cases referred to: 1. Galaunia Farms Limited v National Milling Company and National milling Corporation Limited (2004) ZR 1 2. Mohamed v Attorney General (1982) ZR 49 3. Zulu v Avondale Housing Project Limited (1982) ZR 172 Works referred to: Phipson on evidence, fourteenth edition, (1990 London, Sweet & Maxwell) J 2 The appellant appeals against the judgment of the High Court which granted the 1st respondent’s claim against the appellant and the 2nd respondent for non-delivery of 6000 bags of cement; and also held that the appellant alone was liable to settle the judgment. The facts of this case are these: Between September and November, 2011, the 1st respondent bought 3,300 metric tonnes of cement from the 2nd respondent. That cement was worth K2,015,000,000 (unrebased). The arrangement was that the 1st respondent would pay for the cement at the 2nd respondent’s head office, here in Lusaka, and then collect the cement from the appellant’s depot in Livingstone. The 1st respondent collected the cement in batches. In December, 2011 the 1st respondent contended that out of the 3,300 metric tonnes of cement that it had bought, the appellant had not delivered cement amounting to 6000 bags. This was said to be worth K288,000,000 (unrebased). The appellant reported the matter to the police. Thereafter, meetings were held at which the appellant produced documents to show that the cement had been delivered. The 1st respondent disputed the documents. It is worth noting that notwithstanding that the 1st respondent had received the larger part of the consignment, it produced not a single J 3 document of its own at those meetings so that records could be compared. It merely disputed the documents that the appellant produced. When the parties failed to resolve their dispute, the 1st respondent brought the matter to court, claiming delivery of the 6000 bags of cement or the sum of K288,000,000, being the value thereof; and also damages for breach of contract. In defence, the appellant produced twenty invoices, some loading authorities and some delivery notes to show that the 6000 bags of cement had been delivered. It even produced a collection list that was signed by the 1st respondent’s representative. Again the 1st respondent did not produce any document generated by it. It chose, instead, to use the appellant’s documents and look for apparent weaknesses therein in order to prove its claim. The court below held that the 1st respondent’s burden of proof only went as far as asserting that it had not received the 6000 bags of cement; and that, thereafter, the burden shifted to the appellant to prove that it had delivered to the 1st respondent the 6000 bags of cement which was reflected on the tax invoices. Noting that the 1st respondent had asserted that the cement had not been delivered, the court then proceeded to examine the documents that the appellant J 4 had generated. The court then said that some tax invoices were not signed by the 1st respondent’s representatives. It also lamented the fact that the appellant had not produced other documents such as the log book. The court dismissed the list of collections which the 1st respondent signed through its representatives, saying that the list was merely a summary of the cement collected and that it could not constitute proof of delivery of the cement because it was only signed for by the 1st respondent on 20th December, 2011. Generally, the court condemned the appellant for not following its own procedure and held that it should bear the consequences. As between the appellant and the 2nd respondent, the court held that, since the liability arose from the omissions by the appellant and its employees; and also, that, since the contract between them placed liability on the appellant for any claim arising from those liabilities, the liability for this claim fell squarely on the appellant. The court dismissed the claim for consequential damages for loss of business but entered judgment against the appellant for delivery to the 1st respondent of 6000 bags of cement or payment of the sum of K288,000,000. The appellant filed the following grounds of appeal: J 5 “(i). The trial court erred in fact when the learned judge found that PW3 and PW5 were the only authorized agents of the plaintiff, there being no unyielding evidence to support this assertion while it was in fact established by both PW3 and PW5 that they were only part of the plaintiffs authorized agents and; that it was a finding which no court, properly addressing the facts, would reasonably arrive at. (ii) The learned trial judge erred in law by stating that neither the 1st defendant, (2nd respondent) nor the 2nd defendant (appellant) had discharged their evidential burden of adducing evidence to show that the 6000 bags of cement had been delivered to the plaintiff (1st respondent) when in fact tax invoice numbers OP/1645508, OP/1645509, OP/1645510, OP/1645511, OP/1645512, OP/1645513, OP/1645514, OP/1645515, OP/1645516, OP/1645517, in the 1st defendant’s (1st respondent’s) bundle of documents contain the customers signature confirming that the goods received from the plaintiff were in fact in good order and was, therefore, a finding which no court, properly addressing the facts, would reasonably arrive at. (iii) The learned judge erred in fact when he established that the collection list which appeared on pages 50 and 51 of the 2nd defendants (appellant’s) bundle of documents were a summary of what the 2nd defendant (appellant) was alleging had been collected by the plaintiff in order to assist the plaintiff in their investigations and that the collection list was not proof of delivery of any consignment of cement, when in fact it was PW3’s J 6 evidence under cross-examination that the collection list signifies that the cement was collected. (iv) The learned trial judge erred in law and in fact when he found that the 2nd defendant (appellant) and not the 1st defendant (2nd respondent) was liable for the non-delivery of 6000 bags of cement even after determining that there were no supportive invoices on record to prove that the 1st defendant (2nd respondent) in fact delivered the said bags to the 2nd defendant’s (appellant’s) warehouse AND after the 1st defendant conceded that the difference in the cement delivered and the documentation was caused by the 1st defendant’s (appellant’s) mistake in pricing. (v) The learned trial judge erred in law when he failed to ascertain the legal relationship that existed between the plaintiff (1st respondent) and the 2nd defendant (appellant) AND; that the learned judge ought to have declared that a contractual relationship existed merely between the plaintiff (1st respondent) and 1st defendant (2nd respondent) and that the 1st defendant could subsequently have recourse against the 2nd defendant (appellant) in an entirely separate suit.” We wish to dwell first on the second ground of appeal which raises the issue of burden of proof because we think that there is a serious question as to whether or not the court correctly apportioned the burden of proof to the parties in this case. J 7 The appellant’s advocates filed a notice of non-attendance. Therefore, the appellant’s arguments were those contained in the heads of arguments that had been filed by the advocates. On behalf of the appellant, the argument advanced on this ground was that the appellant had discharged its burden of proof. To support the argument, learned counsel pointed out that at the trial, the appellant had successfully demonstrated that all the invoices that the 1st respondent was disputing were reflecting on the collection list and were marked “cleared and collected”. Responding to that argument, Mr Besa, learned counsel for the 1st respondent, relied heavily on the trial court’s finding that looking at the invoices in dispute, the set of invoices that was issued on 30th September, 2011 did not bear any signature of the 1st respondent’s authorized agent; and that neither did the replacement set that was issued on 17th October, 2011 contain such signature. Counsel argued, further, that the invoices that related to the 6000 bags of cement were fraudulently signed as having been received by the 1st respondent’s representatives. Therefore, counsel argued, the appellant had not discharged its burden. J8 Submitting on this ground of appeal, learned counsel for the 2nd respondent referred us to our holding in Galaunia Farms Limited v National Milling Company and National Milling Corporation Limited*11. The holding states: “A plaintiff must prove his case and if he fails to do so, the mere failure of the opponent’s defence does not entitle him to judgment.” Learned counsel went on to point out that in this case, the 1st respondent had failed to prove its case as all its allegations were disproved by evidence presented before the court below. It was argued that the respondent’s action was on a misapprehension of the facts in that the claim was based on a set of invoices issued by the 2nd respondent on 17th October, 2011 when in fact those invoices were merely replacements of invoices that were issued by the 2nd respondent on 30th September, 2011. Those were the arguments by the parties on that ground. We have already pointed out that the issue regarding the discharge of the burden of proof was at the core of this action. So, we pose the question; Did the 1st respondent discharge its burden of proof in the court below? In Mohamed v Attorney General*2*, in a judgment by Ngulube, J 9 D. C. J, as he then was, we said: “An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent’s defence does not entitle him to judgment. I would not accept a proposition that even if a plaintiffs case has collapsed of its inanition or for some reason or other judgment should nevertheless be given to him on the ground that a defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need a defence.” Again, in Zulu v Avondale Housing Project Limited*3’, in a judgment by Ngulube, D. C. J, as he still then was, we said: “Mr Phiri’s general approach has been to allege that the respondent had not adduced evidence in support of the allegations in the dismissal letter. I have found that the respondent did in fact adduce such evidence. In the process, however, I have also pointed out the deficiencies in the appellants own evidence. It appears that the appellant is of the view that the burden of proof lay upon the respondent and it is on this that I would like to say a word. I think that it is accepted that where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed in any other case where he makes any allegations, it is generally for him to J 10 prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent’s case.” It appears that the view of the appellant in the Zulu v Avondale Housing Project Limited case was also the view that the 1st respondent had in this case; namely, that the burden of proof lay on the appellant and the 2nd respondent to prove that they had delivered the 6000 bags of cement to the 1st respondent. The correct position is that the burden of proof lay on the 1st respondent, being the plaintiff, to prove that he did not receive the 6000 bags of cement. The 1st respondent needed to do so by first presenting its own records for scrutiny. We have, however, noted, at the beginning, the conspicuous absence, among the documents presented to the court below, of the records generated by the 1st respondent. It provided no documents of its own to show the cement that it received on the consignment. The editors of Phipson on evidence, 14th edition (1990 London, Sweet & Maxwell) provide: “In civil cases the evidential burden may be satisfied by any species of evidence sufficient to raise a prima facie case” (para 4-10 page 57) J11 In this case the lower court’s view was that the 1st respondent had satisfied its evidential burden by merely asserting that it had not received the 6000 bags of cement; and that the burden then immediately shifted to the appellant and the 2nd respondent to prove that they had delivered the 6000 bags of cement to the 1st respondent. Had the position been that not a bag of cement had been delivered, at all, on the whole consignment, we would have agreed that a prima facie case would be raised by merely showing proof of payment. But as, we have said, the circumstances in this case were different: The 1st respondent’s total consignment was 3,300 metric tonnes of cement, out of which the 1st respondent received about 3000 metric tonnes. The disputed 6000 bags of cement only amounted to 300 metric tonnes. Therefore, the 1st respondent had, or ought to have maintained, records of the cement that it was receiving. The manner in which this dispute arose is also very peculiar: In December, 2011 the 1st respondent’s Chief Executive Officer, thinking that there was still some cement due, urged the appellant to expedite the delivery. He did not state how much cement, according to the 1st respondent’s records, was still due. He was J 12 informed by the appellant that it had delivered all the cement on the consignment. The appellant went on to invite the 1st respondent’s Chief Executive Officer to examine the invoices. When he saw the duplicate, or replacement, invoices issued on the 17th October, 2011 the 1st respondent’s Chief Executive Officer, then, claimed that the 1st respondent had not received the cement represented by those invoices; the cement reflecting on those invoices amounted to 6000 bags. As we have observed, the 1st respondent did not, either at that time or at any later stage present its records to show that those invoices were indeed not reflecting in its records. The Chief Executive Officer nevertheless escalated his contention into a dispute which, ultimately, came to court. Now, the Chief Executive Officer’s claim that there was still some cement due for delivery should have originated from an examination of the 1st respondent’s own records and not in the manner described above. Hence, when the 1st respondent’s Chief Executive Officer claimed that the 6000 bags shown in the replacement invoices of 17th October, 2011 had not been received by the 1st respondent, it was required of the 1st respondent to, then, present its records to show that, indeed those invoices, or the J 13 invoices of 30th September, 2011 which were being replaced, were not reflecting in its records. Infact, what the trial court lamented of the appellant should have been directed to the 1st respondent. This is what the lower court said at page J39 of its judgment, that is, on page 49 of the record of appeal: “The presence of the log book before the court would have gone a long way to aid the Defendants assertion especially the 2nd Defendant that the cement indeed was picked up by the plaintiffs...." The position, as we have said is that before the appellant was even required to produce a log book, it was the 1st respondent who was required to produce its records to show that the invoices in issue were not reflecting in the records; and, thereby, raise a prima facie case which would then have shifted the evidential burden to the appellant and the 2nd respondent to show that they had delivered the cement reflected in those invoices to the 1st respondent. But that was not the case. The 1st respondent, therefore, failed to raise a prima facie case. Consequently, the trial court fell in error by shifting the burden of proof to the appellant and the 2nd respondent when the 1st respondent had not even adduced evidence that raised a prima facie case. J 14 In any case, the appellant and the 2nd respondent did adduce evidence to substantiate their assertions. For example, the 2nd respondent did demonstrate that in fact, the invoices of 17th October, 2011 were merely replacements for those issued on 30th September, 2011. The appellant did adduce in evidence a list signed by the 1st respondent’s representative, acknowledging the cement that had been delivered to the 1st respondent; and that list contained the numbers of all invoices that the 1st respondent was disputing. The 1st respondent, on the other hand, was the only party in this action which did not produce any evidence to support its assertion. It chose, instead, to prey on any sign of weakness in the defence of its opponents. Consequently, as we held in the cases that have been cited above, the 1st respondent was not entitled to judgment, whatever could be said of the defence of its opponents. We, therefore, find merit in the appeal on this ground alone. As a result, we do not see the need to consider the other grounds of appeal because, in our view, those grounds should only have been considered if the 1st respondent had raised a prima facie case. As matters stand, the 1st respondent had failed to discharge its evidential burden. Consequently, it was not necessary to even consider the strength of the case for the appellant and 2nd respondent. J 15 We, therefore, allow this appeal. We set aside the judgment of the court below and dismiss the 1st respondent’s claim. The appellant and the 2nd respondent will have the costs, both here and in the court below, to be taxed in default of agreement. H. Chibomba SUPREME COURT JUDGE E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE