Attorney General v Randee (Appeal 1 of 1987) [1987] ZMSC 84 (30 November 1987)

IN THE SUPREME COURT OF ZAMBIA Appeal No, 1 of 1987 HOLDEN AT LUSAKA (Civil Jurisdiction) THE ATTORNEY GENERAL Appellant and GRAHAM RANDEE Respondent CORAM: Ngulube, D. C. J., Gardner, J. S. and Bweupe AJ. S. B. L. Goel, Senior State Advocate, for the appellant A. J. Nyangulu, Messrs Nyangulu & Company, for the respondent 29th October and 30th November, 1987 JUDGMENT Ngulube, D. C. J., delivered the judgment of the court Cases Referred to: (1) Heap -v- Motorists Advisory Agenyy Limited (1922) ALL E. R. REP.251 (2) Stadium Finance Limited -v- Robbins (1962) 2 ALL E. R. 633 (3) National Employers Mutual General Insurance Association Ltd -v- Jones, The Times, 6th April, 1987 This appeal Is brought by the Attorney General against the judgment of a High Court Commissioner ordering the release to the respondent of a motor vehicle Mercedes Benz 500 SEC registration number AAF 8585. On 6th March, 1984, the customs authorities seized the vehicle from the respondent and served on him a notice to the effect that the seizure was in terms of section 162 of the Customs and Excise Act, Cap. 662 in that the car was liable to forfeiture. From the affidavit evidence and the documents exlbited in the case, the following facts were either not in dispute or clearly not capable of dispute or challenge: On 29th September, 1983, one George Gideon Huysamer, a resident of Johannesburg, South Africa, purchased for R90,000 a brand new Mercedes Benz 500 SEC and had it 2/..............registered : : registered in his name with registration numbers JCF 161T. On 4th November, 1983 this car was stolen from him by a thief unkown but who was a confederate of a South African called Danny. Danny gave this stolen car to one Gordon Thomas Barnard, a resident of Northmead, Lusaka. On 21st November, 1983 Barnard gave this car to one Ibrahim Yusuf. Yusuf claimed that he had purchased this car from Barnard and had paid the price in June and July, 1983, long before the car was purchased by the true owner and long before it was stolen. The respondent's claim was that he bought this car from Yusuf. The documentary evidence shows that on 21st November, 1983, Barnard (who gave his postal address as Box 35364, Lusaka, which a number of other documents showed as belonging to Yusuf) arrived at the Chirundu border post with a car and applied for permission to have it cleared through customs at Lusaka. The declaration lodged showed that he had imported a Mercedes Benz 280S registration number FDT 634T and bearing an engine number and a chassis number which were totally different from those of the stolen Mercedes Benz, the subject of this appeal. The documents further show that on 1st December, 1983, Barnard had this 1980 Mercedes 280S valued for duty purposes. The form used for the purpose shows that the car was inspected and its condition and defects noted. It also revealed that a number of documents were furnished including an invoice dated 25th March, 1983, from Messrs Sharman Motors of South Africa, the alleged suppliers. The suppliers had in fact never dealt with the stolen Mercedes and forwarded an affidavit that their invoice was among a batch which had gone missing. On 23rd December, 1983, duty and sales tax amounting to K16,472.38n was paid and a receipt Issued in favour of Barnard in respect of Mercedes Benz registration number FDT 634T, but for the first time giving the engine and chassis numbers for the stolen Mercedes. On the strength of, inter alia, the documents referred to, a customs clearance certificate was issued in the name of Barnard and the respondent successfully applied to register the stolen car in his own name. It was not in dispute that Barnard did not clear the stolen car through customs; he did not have the car valued; nor did he pay the duty and sales tax when the particulars of the stolen car started to 3/.......................be J3 be endorsed on the official documents. Barnard was then not even in the country and this fact was admitted by Yusuf. It is not in dispute that It was In fact Yusuf and the respondent who continued to use Barnard's name since he was the importer who was required to clear the car. On the indisputable evidence which we have recited at fairly great length. It was thus never in dispute that the stolen Mercedes was and continues to be an uncustomed car within the meaning of that expression as used in the definitions Section of Cap. 662. It is also plain that there has been an elaborate fraud in connection with this stolen car. However, the respondent claimed that he was an innocent purchaser without notice. The learned trial commissioner accepted that the respondent purchased the car from Yusuf without notice that the car was liable to seizure; that the respondent did not know he was byying a stolen car; that there was nothing wrong with Yusuf paying Barnard for the car In advance; that the sale of the car to the respondent had been in market overt and that, as there was no way in which the respondent could have known of Yusuf's defect in title, he had acquired a good title and the stolen car should be returned to him. The upshot of Mr. Goel's submissions and arguments was that, the findings by the learned trial commissioner and the conclusions of law were all in the teeth of the evidence which we have already set out. He pointed out that, as a number of offences had been committed in relation to this car under section 141 of Cap. 662 (concerning false documents, false representations, and so on), it was liable to seizure under section 162. He pointed out that Yusuf was part of the fraudulent transaction and could not have paid for the car in June and July, 1983, as he claimed, when that car had not even been purchased by the true owner and certainly long before it had even been stolen. The official documents created in Barnard's name on the basis of misrepresentations by Yusuf and the respondent, according to Mr. Goel, all indicated that the respondent should not be heard to say that he was an Innocent purchaser when he had seen the documents and he had himself made use of them. Mr. Nyangulu argued that, the respondent was not party to the fraud and that, even if he had himself paid duty in someone else's name and had made use of the various suspect 4/.......................documents a : J4 : documents, he was an innocent purchaser. Mr. Nyangulu argued that a sale by private treaty of a second-hand car should be regarded as a sale in market overt and a good title should pass to an innocent purchaser. He very fairly conceded, however, that to date this car has remained uncustomed, since the documents used for its clearance related to a different car. We have considered the arguments and find that we agree with Mr. Goel that, the findings made by the learned trial commissioner cannot be supported. The position of an alleged innocent purchaser is recognised by Cap.662 itself in S.162(3) which reads: "(3) No seizure shall be made in terms of sitaecticn (1) where more than ei^rteen months have elapsed since the articles first became liable to seizure or where such articles have been acquired for their true value by a person Who was unaware at the time of his acquisition that they were liable to seizure:" It should be noted that the subsection is concerned with liability to seizure under the law relating to Customs and Excise, such as in respect of uncustomed goods and infrigements of such law: See section 162(1) and (2). The subsection quoted is otherwise not concerned with the law relating to stolen goods, a matter to which we shall shortly refer. However, on the facts and in relation to the subsection quoted, the respondent personally made use of documents which gave details of another car when It must have been obvious even to him that the documents he was using did not relate to this particular motor vehicle. We agree with Mr. Goel that, the fact that the respondent used documents which, on their face, related to a different car belies the claim that he had no knowledge of the fact that this car had no valid papers and could never be said to have been lawfully imported, let alone dealt with. In considering the possibility that a purchaser might be innocent, the court can only proceed on the basis that it is dealing with a reasonable person who is familiar with the requirements of the law and the paactice of customs clearance and sale of a vehicle which has allegedly been imported into the country. The respondent himself undertook a lot of the required procedures and it was he who first transformed the Mercedes 280S 'i"to a Mercedes 500 SEC on the official.... 5/.................... documents : J5 : documents. It would be absurd to suggest that he had no knowledge when he had clear knowledge of what he was doing. The stolen car remains uncustomed to date and various false documents were utilised. This being the case, the car was certainly liable to seizure and the respondent cannot be heard to say he was unaware of this state of affairs. It was argued that a good title had passed to the respondent because the sale was in market overt and he was an innocent purchaser from Yusuf who could pass title. This argument can be disposed of very shortly: Under section 21(1) of the Sale of Goods Act, 1893, which applies in Zambia, a person who is not the owner of the goods and who does not sell them under the authority or with the consent of the owner can pass no better title than he himself had unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. One of the exceptions to this nemo dat rule is to be found in s.22 of the Sale of Goods Act, in relation to sales in market overt. It should be observed, for the record, that neither the thief nor Danny nor Barnard nor Yusuf acquired any title which they can hide behind or put forward in a court of law as against the tune owner who is in South Africa and who did not conduct himself in any manner so as to be precluded from denying any of these gentlemen's authority to sell his car, which they undoubtedly did not have. As already stated, S.22 contains one of the exceptions and is to the effect that, where goods are sold in market overt according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without any notice of any defect or want of title on the part of the seller. We have already found that the respondent had notice of the defect or want of title on the part of the seller when he saw the irregular documents which he himself later used. It is thus unnecessary to discuss the question raised but if it were necessary to do so, we would have had no difficulty in demonstrating that the expression "market overt" has legal definitions and it would be untenable to argue that a sale by private treaty and between associates (since the address given for Barnard by the respondent on the documents procured by him was that of Yusuf) was a sale in the open market. The finding by the learned trial commissioner that there was any sale in the open market to an innocent purchaser was in the teeth of the evidence, particularly the documentary evidence, and is one which must be immediately set aside. 6/.................... The : J6 : The transactions herein were thoroughly fraudulent. The rule under S.21(1) of the Sale of Goods Act must apply so that people who steal cars could not confer any title: See Heap -v- Motorists Advisory Agency Limited (1). In our considered view, the authorities which lean in favour of an innocent true owner, as against an innocent purchaser, must be supported in cases where goods are obtained fraudulently, such as by theft: See Stadium Finance Limited -v- Robbins (2) and see also National Employers Mutual General Insurance Association Limited -v- Jones, (3), which was cited by Mr. Goel. If the respondent bought this car, as he says he did (although he has never mentioned the price which he paid), he has his remedies against his seller, Yusuf. In conclusion, we allow the appeal; the decision below Is reversed and we find that the respondent was not an innocent purchaser without notice and that he has not acquired any title to the car. We uphold the seizure.' The costs follow the event and will be taxed in default of agreement. M. S. N6ULUBE DEPUTY CHIEF JUSTICE b'.”k” Gardner” SUPREME COURT JUDGE B. K. BWEUPE ACTING SUPREME COURT JUDGE