Tombwe Processing Limited v Bak Storage Limited and Ors (Appeal No. 271 of 2021) [2023] ZMCA 310 (30 November 2023)

fJ IN THE COURT OF APPEAL OF ZAMBIA (cid:9) HOLDEN AT LUSAKA Appeal No. 271 of 2021 (Civil Jurisdiction) BETWEEN: (cid:9) t&LIC OF ,) 0%31oF AMS $' PEA- TOMBWE PROCESSING LI (cid:9) I' n (cid:9) Appellant AND (cid:9) >.,RGISTRY 1 80X (cid:9) 50067, BAK STORAGE LIMITED SALTLAKE HOLDINGS LIMITED 1S Respondent 2' Respondent CORAM: Mchenga, DJP, Banda-Bobo, Sharpe-Phiri, JJA on 15 November 2023 and 30 November 2023 For the Appellant: (cid:9) For the lS Respondent: Mr K. Banda of Messrs AMW & Company For the 21 Respondent: Mr R. Musumali of Messrs SLM Legal Practitioners Mr C. Nkhata of Messrs Paul Norah Advocates JUDGMENT SHARPE-PHIRI, JA, delivered the . Judgment of the Court Legislation referred to: 1. (cid:9) The Sales of Goods Act 1893 Cases referred to: 1. Twampane Mining Co-Operative Society Limited V E And M Storti Mining Limited (2011) Vol. 3 Z. R. 2. Galaunia Farms Limited v National Miling Company Limited and National Milling Corporation Limited (2004) Z. R. 1 3. Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 4. Mazoka and Others v Mwanawasa and Others (2005) Z. R. 138 5. Almaz Lulsegen (Female) V British Airways Limited (2008) Z. R. 186 Vol. 1 (SC) 6. Lombe Chibesakunda VRajan Lekhraj Mahtani (1998) S. J. 39 (S. C.) 7. Clement HMweempe V The Attorney General International Police Avis Rent A Car (2012) Vol. 2 Z 156 (S. C. JI 8. Lonrho Cotton Zambia Limited VMukuba Textiles Limited (2002) ZR 43 1. INTRODUCTION 1.1 (cid:9) This is a consolidated appeal consisting two appeals, one appeal being under cause number CAZ/08/2 15/2015 (Appeal 160 of 2021) which emanated from ajudgment of Sikazwe J, delivered on 2l of October 2015. The other appeal being under cause number CAZ/08/419/2020 emanating from a ruling of Lombe-Phiri, J given on 9 November 2020 under. 2. BACKGROUND 2.1 (cid:9) The background of the matter leading up to this appeal is that Tombwe Processing (the appellant herein), a company incorporated in Zambia commenced an action in the High Court on 11 November 2009 against 2 companies located in Zimbabwe, Bak Storage and Saltiake Holdings, (the 1St and 2nd respondents herein). 2.2 (cid:9) In the statement of claim, Tombwe alleged that on various dates from March 2009, it purchased tobacco from various suppliers, farmers, and marketeers of various sources. That such purchases were entered in their Goods Received Notes of their company. 2.3 (cid:9) Of all its purchases, none were procured from the Saltlake Holdings and Bak Storage, therefore the respondents had no legitimate claim over the goods it purchased and stored in their storage room over which the respondent's intended to lay a claim. 2.4 (cid:9) That, on 106' November 2009, Bak Storage and Saitlake Holdings sent representatives to Tombwe's premises in Zambia alleging that some bales J2 (cid:9) (cid:9) (cid:9) (cid:9) of tobacco belonging to the respondents were on the appellant's premises. That these agents had no documentary evidence to identify the tobacco and to claim repatriation of the bales of tobacco from Tombwe's premises to Zimbabwe. That Tombwe has never dealt with Bak Storage and Saitlake and as such they had no legitimate cause or justification to be on its premises. 2.5 Tombwe therefore sought the following reliefs from Bak Storage and Saltake Holdings: i) ii) A declaration that the appellant having bought and purchased the bales of tobacco on the open market, be declared to be the legitimate owners of the goods; Further, for an order declaring the decision by the respondents to remove from the jurisdiction, the appellant's tobacco to be null and void, illegal and lacking at law; and iii) For an order of injunction restraining the respondents by themselves, their agents or anybody purporting to act in such capacity from shifting the location of the tobacco to any other place, until after the determination of this cause and those costs be in the cause. 3.0 (cid:9) 1ST AND 2ND RESPONDENTS' DEFENCE AND COUNTER-CLAIM 3.1 (cid:9) The respondents filed a combined defence and counterclaim contending that Saltiake is a company incorporated in Zimbabwe and is in the business of contracting and buying of tobacco while Bak Storage is also a Zimbabwean Company carrying on business as a storage company. J3 IN 3.2 (cid:9) The contention of the respondents is that Saitlake procured a loan facility of US$1,900,000 from the Reserve Bank of Zimbabwe to support its procurement of tobacco in Zimbabwe. The said loan was to be repaid to the Bank by 30 September 2009. Upon being availed the facility, Saltiake purchased 1,800,000 kilograms of tobacco in Zimbabwe for sale to Savanna Tobacco. 3.3 The tobacco was stored at Bak Storage warehouse facility for onward supply to its customer. That in due course, they discovered that 500,000 kilograms of tobacco, more specifically 6,250 bales equivalent of US$2,217,995 had gone missing from Bak Storage facility. 3.4 That following institution of criminal investigations in Zimbabwe and Zambia by the respective Police Services and in particular Interpol Division, it was discovered that the tobacco had been stolen and smuggled into Zambia by known persons. 3.5 (cid:9) The respondents sent representatives to Zambia to assist the Zambia Police Service Interpol Division in carrying out investigations in pursuit of the 2 n respondent's tobacco bales which were stolen from Zimbabwe and smuggled into Zambia. 3.6 The said tobacco was traced to Tombwe Processing premises at Plot Number 5055 Mungwi Road, Lusaka. While at the appellant's premises, the Police team and their representatives identified several bales of tobacco belonging to Saltlake which were stolen from Bak Storage in Zimbabwe. J4 (cid:9) (cid:9) 3.7 That the tobacco bales that were identified at Tombwe's premises, had Zimbabwean growers' numbers, and some were clearly marked Saltiakes Tobacco and others had slips belonging to the Zimbabwe Tobacco Association Company (ZITAC) and the Barley Marketing of Zimbabwe (BMZ). 3.8 (cid:9) That a docket was opened in Zimbabwe in criminal case number Marimba- CR27110109 involving theft of 500,000 kilograms of tobacco bales of fine cured virginal tobacco stolen from the Bak Storage and Saltlake and smuggled into Zambia worth US$2,217,995.00. The respondents claimed that they had documentary evidence in their possession in relation to this case. 3.9 That resulting from the aforesaid stolen tobacco which was traced and identified at Tombwe's premises, Saltlake has suffered loss and counter- claimed for the following reliefs from Tombwe: i) The sum of US$2,21 7,995.00 being the cost of the lost Tobacco aforesaid; ii) Interest at the current Dollar bank lending rate; and iii) Costs. 3.11 The respondents contended that Tombwe was not entitled to any of the reliefs claimed in the Court below. J5 4. (cid:9) APPELLANT'S REPLY AND DEFENCE TO COUNTER-CLAIM 4.1 (cid:9) In response, Tombwe filed a reply and defence to counterclaim in which it insisted that it was never privy to or had knowledge of the alleged theft and smuggling of tobacco from Bak Storage facility and that this purportedly occurred out of jurisdiction. 4.2 (cid:9) Tombwe denied knowledge of the alleged criminal investigations instituted in Zimbabwe and the value and type of tobacco alleged as stolen. The other contention was that the use of local police by foreign nationals of different jurisdiction to conduct searches at Tombwe's premises was suspicious and an abuse of the system. Further, the presence of the representatives of the 21 respondent at the appellant's premises was to influence the local police in conducting an illegal search. 4.3 (cid:9) The appellant further contended that there was no proper identification of any of the tobacco found. That the 2 respondent had failed to show the alleged number, identity and connection but merely tried to investigate. The appellant further averred that it would insist on evidence of the alleged bags of tobacco at trial. 4.4 In the defence to the counterclaim, the appellant averred that the respondents had established the persons responsible for the disappearance of the tobacco at their storage facility and hence the counterclaim ought to have been directed at them rather than the appellant. The appellant refuted that the 2" respondent had suffered any loss at its instance as it had never dealt with the respondents. J6 (cid:9) (cid:9) (cid:9) JUDGMENT OF JUDGE SIKAZWE 5.1 (cid:9) The trial of this counterclaim was heard in Lusaka on 20 October and 28 November 2010. After considering the pleadings and evaluating the evidence, the trial Judge held that Saitlake Holdings had stored green tobacco at Bak Storage in Zimbabwe. That 6,250 bags of tobacco were discovered missing from Bak Storage warehouse. The value of the missing bales of tobacco was US$2,190,000. The drivers of the trucks which collected the bales of green tobacco from Bak Storage led the managers of Saltlake and a combined team of Zimbabwe and Zambia Police officers to Tombwe's premises in Zambia where they delivered the bales of tobacco. 5.2 With a search warrant obtained from the Magistrates Court and while conducting investigations, some bales of green tobacco and some empty bags of green tobacco were found in Tombwe's warehouse, which bore the identification of Saltlake's name tags and numbers for the 2' respondent's bales of green tobacco stored in Bak Storage warehouse. 5.3 (cid:9) The Court determined that the green leaf tobacco found in the appellant's premises was the tobacco that went missing from Bak Storage warehouse. The Judge further held that there was no possibility that the green leaf tobacco could have left Bak Storage warehouse in Zimbabwe in a normal way as an export. This was because Tombwe was not registered with the Zimbabwe Tobacco Marketing Board neither did the appellant prove before the trial Court that the bales in its possession were legally imported in Zambia from Zimbabwe. J7 (cid:9) (cid:9) 5.4 (cid:9) The Court further determined that the appellant failed to prove that it had bought the subject green tobacco in an open market in Zambia. The Court concluded that the only inference it could thaw was that the appellant received stolen green leaf (unprocessed) tobacco from Zimbabwe and must be accountable for it. The trial Judge further entered judgment in favour of the 2" respondent ordering Tombwe Processing to pay Saltlake the sum of US$2,190,000.00 being the value of 6,250 bags of green tobacco which went missing from Bak Storage warehouse in Zimbabwe. 6.0 (cid:9) APPLICATION TO SET ASIDE JUDGMENT 6.1 (cid:9) Following the judgment of Sikazwe, J of 21st October 2015, the appellant applied to set aside this decision on 5 July 2019. In the supporting affidavit of even date, the Managing Director of the appellant company set out the history of the case from the institution of the action on 11 November 2009 being represented by the firm of Nicholas Chanda and Associates, a one- man law firm. 6.2 (cid:9) He stated that unbeknown to the appellant, sometime between 2010 and 2012, their advocate Mr. Nicholas Chanda fell ill and could not continue to represent them and the firm of Messrs H. H Ndhlovu and Company was appointed as caretaker of the firm of Nicholas Chanda and Associates. Not having heard from their lawyer, they assumed that their case was awaiting a hearing date. 6.3 (cid:9) That a perusal of the Court record reveals that Mr. Tresford Chali of Messrs H. H Ndhlovu and Company purported to take over conduct of the matter and placed himself on record as representing their company. This is despite J8 (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) the appellant not having had any contact with Mr. Chali, nor having authorized him to prosecute the matter in the High Court on their behalf 6.4 That the respondent applied to have the matter set down for trial on 6 August 2010 and the trial was scheduled for 27 and 28 November 2010, which date was not communicated to the appellant. On 27 November 20 10, Mr. Chali informed the Court that he did not have instructions from the appellant to proceed with the matter as he had not received any response to the correspondence sent to the appellant and withdrew from the record. 6.5 That the record shows that on the said date, the respondent's counsel applied to dismiss the appellant's case and the matter was set for hearing of the respondent's counterclaim that afternoon. The respondents proceeded to present their counterclaim on 27 and 28 November 2010. 6.6 (cid:9) The deponent further contends that the appellant was unaware of the trial dates, did not make an appearance at Court, nor did any of its witnesses testify on its behalf. That judgment in the matter was delivered on 21 October 2015 in favour of the respondents for the sum of US$2,190,000. That at this time, Messrs H. H Ndhlovu had withdrawn from the record and therefore they were not aware of delivery of the judgment until it was brought to their attention by the respondent's advocates on 10 February 2016. 6.7 (cid:9) That being dissatisfied with the judgment, it had applied for special leave to review which was declined by ruling dated 17 December 2018. The deponent further contended that it had proceeded to appeal against the said High Court Ruling to the Court of Appeal, who although it dismissed the J9 (cid:9) (cid:9) Appeal indicated that the High Court judgment was defective. That it now seeks to set aside the judgment per the direction of the Court of Appeal. 6.8 (cid:9) In relation to the setting aside, it was the appellant's contention that the judgment was rendered in the absence of the appellant who was not given an opportunity to be heard. Further, that if the judgment is not set aside, the respondents will proceed to execute against the appellant which will make the appellant insolvent and result in losses of 860 jobs in Zambia. 6.9 In opposing the application, the respondent filed an affidavit on 29 June 2020 sworn by Chizyuka Muyovwe, the Country representative of the 2 respondent. It was the evidence of the respondents that the trial of the matter was heard on 27 and 28 November 2012 and that the record reveals that the parties were duly represented at the trial. It was further contended that contrary to the allegations by the appellant, the record showed that the appellant's advocates informed the court that the appellant was informed of the trial dates on 10 August 2012 and 18 August 2012. 6.10 That in addition, there was no formal notice of withdrawal from the advocates before commencement of trial on 28 November 2012. That, moreover, a status conference was called in 2015, 3 years after the trial had concluded on 28 November 2012 and judgment reserved. The appellant did not challenge or make any application to the Court in all that period. 6.11 The further contention was that the appellant's submissions at paragraph 32 and 33 of the affidavit in support was misleading as the Court of Appeal had not given any direction that the appellant should apply to set aside the judgment. That the Court of Appeal held at page J23 that the appellant's arguments before it was not suitable for an application for review but appear to be for setting aside. 6.12 It was also contended that the appellant was given an opportunity to present its case from 2009 when it commenced, to 2012 when the trial in respect of the counterclaim was conducted, until judgment was rendered in 2015. The respondents further argue that an inordinate period of time has passed since the case commenced in 2009 to date and it has suffered losses and would be greatly prejudiced if the case is reopened so many years later. 6.13 In the affidavit in reply dated 10 July 2020, the deponent essentially repeated the contents of the affidavit in support. It has been considered but will not be reproduced here. 7 (cid:9) RULING OF JUDGE LOMBE-PIIIRL 7.1 (cid:9) After careful consideration of the evidence and arguments of the parties on the application to set aside the judgment of Sikazwe, J of 21 October 2015, Lombe-Phiri, J rendered a ruling on 9 November 2020 in which she made the following findings of fact: i) (cid:9) There was a trial of the matter on 27 August 2012 where Counsel for the plaintiff was on record as Mr. T. Chali from HH Ndhlovu. The said lawyer did state for the record that he had attempted to obtain instructions from the plaintiff but had not obtained instructions from the plaintiff, so he was unable to proceed, and he excused himself ill ii) The Court decided to proceed with the defendant's counterclaim. The record of proceedings for the day does not show what pronouncement was made regarding the plaintiff's case. iii) The Court reserved its judgment in the matter and gave the parties time within which to file written submissions. The Court further set a date for a status conference. There was no reaction from the plaintiff, both with regard to the invitation to file written submissions and also to appear at the status conference. iv) The Court rendered its judgment based on what it had on the record on 21 October 2015. v) It is also an unchallenged fact that the plaintiff only became aware of the Court's final judgment in the matter in February 2016 from the defendant. 7.2 The learned Judge in the Court below further went on to make the following remarks: 'It is clear from the facts before the Court that firstly this application to set aside has been made very late in the day. The very first step this Court needs to take before even delving into the merits of whether there are prospects of success at trial, is whether the plaintiff should be allowed to make this application out of time. The circumstances before the Court are that the plain4ffhas been unaware of any activity on the case from 2010 - 2016 This is a very interesting phenomenon. The position of the plaintiff is one that is quite perplexing. It has been stated in the affidavit in support that the plaintiff's original lawyer became indisposed in 2010. The plaintiff knowing that this was the J12 situation and also that they were prosecuting a matter before the Court's albeit represented by counsel, should at the very least have taken time to appoint Counsel to take up the matter. Mr. T. Chali 's account at the trial are [is] believable that he wrote to the plaintiff company but received no response. The plaintiff having taken out an action should have demonstrated some interest in the matter before the Court. Clearly, the plaintzfffor whatever reason, went to sleep and were rudely awakenedfrom their slumber by the judgment of the defendants. As the circumstances present themselves it can therefore not be said that the plaintiff were [was] not given an opportunity to be heard by the Court. The record of the case will show that this was an action that was commenced in 2009, trial took place in 2012 andjudgment was rendered in 2015. Surely, during this entire period, the plaint'should have taken time to find out what was happening with their case. The conduct of the plaintiff is such that this Court cannot entertain an application to set aside the judgment based on the inordinate delay in bringing the application to set aside the judgment. I find that the plaintiff in this matter had constructive notice of the trial through the caretaker counsel but for reasons known only to themselves decided to keep away. I also find that the plaintiff' has not exhibited any strong reasons for reopening of the trial and also prospects of such success. Simply pointing out the errors in the style and form of delivering of the judgment does not amount to showing that there are real prospects of success. The defendant has already indicated that it is in the process of enforcing its judgment. The judgment of the Court, unless it is overturned on appeal, is what it is. J13 I find that critically looking at the facts of this case and the manner in which the Court handled it, there is nothing irregular about the manner in which the judgment was obtained. The Supreme Court has repeatedly stated that a trial Court ought to take control of the proceedings and ensure thatjustice is delivered in a timely manner. It would be setting a dangerous precedent to entertain applications to set aside judgments on the basis of plaintiff's absenting themselves from proceedings. The burden ofproving a matter lies on a party that brings the allegation. Litigants ought to be proactive in ensuring that their matters are prosecuted in a timely fashion. In view of the foregoing, Ifind that the application by the plaintiff lacks merit. The application is accordingly dismissed. Costs ordered for the defendants.' 8. (cid:9) THE APPEAL AGAINST THE RULING OF 9 NOVEMBER 2020 8.1 (cid:9) Being dissatisfied with the ruling of Lombe-Phiri, J of the High Court rendered on 9' day of November 2020, the appellant filed a Notice and Memorandum of Appeal on 10 November 2020 advancing four grounds of appeal as follows: i) ii) The Court below erred in fact and in law when it ignored unopposed evidence on record that the appellant ought to have made the application to set aside the judgment within 7 days of the judgment in the face of uncontested evidence that the appellant only came to be aware of the judgment in February 2016 long after the delivery of the judgment. The Court below misdirected itself when it accepted the account of Mr. Tresford Chali that he had corresponded with the appellant in the absence ofany evidence on record to prove that allegation in the face of the appellant uncontested account that it had never had any contact with Mr. Tresford Chali. J14 iii) The Court below erred in law and in fact when it determined that the appellant had constructive notice of the trial through the caretaker counsel when there was no evidence on record to show that the caretaker counsel had in fact brought the trial to the attention of the appellant to disprove the appellant's evidence that it had never had any contact with caretaker counsel. iv) The Court below misdirected itself in fact and in law when it determined that the appellant had not exhibited any strong reasons for re-opening of the trial and also prospects of such success in the face of glaring and fundamental flaws in the judgment dated 21 October 2015 which had been acknowledged by the Court ofAppeal. 9.0 (cid:9) APPEAL AGAINST JUDGMENT OF 21 OCTOBER 2015 9.1 (cid:9) Being dissatisfied with the judgment of Sikazwe, J of the High Court rendered on 21t day of October 2015, the appellant filed a Notice and Memorandum of Appeal on 21 May 2021 advancing four grounds of appeal as follows: i) That the Honourable Court misdirected himself in law and in facts when it awarded the Respondent the unconscionable sum of United States Dollars Two Million One Hundred and Ninety Thousand (US$2,190,000.00) being the value of 6,250 bags of Green Tobacco which went missingfrom the ' Respondent's warehouse on the face of evidence that the Zambian officers that conducted the investigations only found 113 bales of Green Tobacco in the Appellant's premises and not 6,250 as claimed. Further to that, there was no evidence to prove that amidst the 113 bags that were found at the Appellant's premises that the said bags were some of the actual bags that were missing from the ' Respondent's warehouse. ii) That the Honourable Court misdirected himself in law and in facts when it proceeded to hear the Respondent's counterclaim in the absence of the Appellant based on the sole statement of the Advocate Caretaker of Messrs Nicholas Chanda and Associates one Mr. T. Chali who said that he wrote to obtain instructions from the Appellant and that the latter did not respond. The Court proceeded to hear the Respondent's J15 counterclaim in the absence of the Appellant without Mr Chali actually providing evidence of the said letter seeking instructions from the Appellant. This being a grave miscarriage of justice that to pass a judgment against a party who was not given the opportunity to be heard, this Court should refer the matter back to the High Court for re- trial. iii) That the Honourable Court misdirected himself in law and in facts when it held that the Appellant did not adduce any evidence to prove that they purchased the bales of Tobacco at an open market as it is trite law that he who alleges must prove and the Respondents did not adduce any evidence to show that the very bales that were found at the Appellant's premises belonged to them. iv) That the Pt Respondent having not given any instruction to any lawyers in Zambia to pursue any matter against the Appellant makes the judgment that was obtained in the High Court against the Appellant a nullity and a grave miscarriage ofjustice hence the judgment should be set aside. 10. ARGUMENTS OF THE PARTIES 10.1 The appellant filed its heads of argument on 23 July 2021. The 1St respondent did not file any arguments. The 2nd respondent filed its heads of argument on 10 February 2021. The respective sets of arguments have been duly considered and will be referred to in the later part of this judgment. 11. THE APPEAL HEARING 11.1 The consolidated Appeal was heard on 15 November 2023. The appellant was represented by Counsel as indicated above. The Advocates largely relied on the filed arguments. Counsel briefly augmented ground 2 of both the appeal against ruling and the appeal against judgment. This will be recast where necessary in our analysis section. The (cid:9) respondent's J16 Advocate submitted that the dispute was mainly between the appellant and the 2nd respondent. He therefore prayed that the respondent should not be condemned to costs in any event. The 2' respondent's Advocate replied to the appellant's submissions, and these too, will only be repeated were necessary, in our analysis section. 12. OUR ANALYSIS AND DECISION 12.1 We have carefully considered the consolidated record of appeal dated 11 November 2021, the ruling of 9 November 2020 and judgment of 21 October 2015 and the arguments of the respective parties. 13. APPEAL AGAINST THE RULING 13.1 We will begin by addressing the grounds of appeal against the ruling of 9 November 2020. There are 4 grounds of appeal set out in paragraph 8.1. We propose to deal first with grounds 2 and 3 for reasons that will become obvious. We shall then address grounds 1 and 4 respectively thereafter. 13.2 As regards grounds 2 and 3 of the appeal of the learned Judge's ruling of 9 November 2020, our position is that these grounds raise issues that are related to grounds 2 and 4 of the appeal against judgement of 21 October 2015 and will be addressed accordingly when dealing with the appeal below. 13.3 We now address ground one of this portion of the appeal in which the appellant contend that the Court below erred in fact and in law when it ignored unopposed evidence on record that the appellant ought to have made the application to set aside the judgment within 7 days of the judgment in the face of uncontested J17 evidence that the appellant only became aware of the judgment in February 2016 long after the delivery of the judgment. 13.4 We have perused the ruling of our learned sister in the Court below. We find the contention of the appellant under this ground of appeal to be misplaced. The basis of the trial Court's dismissal of the application to set aside Judgment of 2015 was partly that the delay in bringing the application to set same aside was inordinate. This is as evidenced in her ruling at page R9 found at page 27 of the consolidated ROA. The relevant portion of the said ruling reads that 'surely, during this entire period the Plaintiff should have taken time to find out what was happening with their case. The conduct of the Plaint if is such that this Court cannot entertain an application to set aside the Judgment based on inordinate delay in bringing the application to set aside Judgment'. We augment this finding of the lower Court by observing that despite the appellant claiming to have only become aware of the judgment of 2015 some time in 2016, it waited until 5 July 2019 to bring the application to set aside same. The Supreme Court has guided that litigants who wantonly breach rules of Court sleep on their rights, and do so at their own peril. (Twanipane Mining Co-Operative Society Limited V E And M Storti Mining Limited)'. This ground of appeal therefore fails on that account. 13.5 We now address ourselves to ground 4 of this part of the appeal in which the appellant contends that the Court below misdirected itself in fact and in law when it determined that the appellant had not exhibited any strong reasons for re- opening of the trial and also prospects of such success in the face of glaring and fundamental flaws in the judgment dated 21 October 2015 which had been acknowledged by the Court of Appeal. 13.6 As our position in ground 1 above is that the said ground was misplaced, the same can be said of this ground as well. For purposes of clarity, we reproduce an J18 extract of our Judgment that the appellant erroneously is attempting to mislead us, that it contained an acknowledgment by this Court of irregularities in the Judgment of the lower Court dated 21 November 2015. The portion of our Judgment reads at page J23 also found at page 345 of the consolidated ROA dated 21 November 2021 as follows: "we are of the view that the statements offact disclosed therein are suitable for an application to set side Judgment pursuant to Order 35 Rule 5 of the High Court Rules rather than an application for special leave to review. The proper application would have been one to set aside Judgment as it was made in the absence of the Appellant' 13.7 The appellant are attempting to tilt this Court into agreeing that we acknowledged the alleged glaring irregularities in the Judgment of High Court of 21 November 2015. This position is fundamentally inaccurate and misleading. We merely opined that on the basis of facts that had been disclosed before us, an application to set aside was more appropriate than an application for special leave to review. This observation was not an acknowledgement of glaring irregularities in the Judgment of the High Court as the appellant is attempting to put it. For the said reason, this ground of appeal also fails as it lacks merit. 14. (cid:9) APPEAL AGAINST THE JUDGMENT 14.1 The appellant argued grounds 1 and 2 together. We have chosen to address ground 2 first and separately as it raises issues that go to the root of the respondents' counterclaim, which has largely given the basis of the appeal before us. Ground 1 and 3 will be determined simultaneously, thereafter, ground 4. J19 14.2 The contention in ground 2 is that the Honourable Court misdirected itself when it proceeded to hear the respondent's counterclaim in the absence of the appellant based on the sole statement of the Advocate caretaker of Messrs Nicholas Chanda and Associates, one Mr. T. Chali who said that he had attempted to obtain instructions from the appellant but that the latter did not respond. 14.3 The appellant have argued further that the court proceeded to hear the respondent's counterclaim in the absence of the appellant without Mr Chali providing evidence of the said letter seeking instructions from the appellant. The appellant argued that passing judgment against a party who was not given the opportunity to be heard, is a grave miscarriage of justice and urged this Court to refer the matter back to the High Court for re-trial. 14.4 The appellant's argument under this second ground is twofold; firstly, that the court relied on the submission of Mr. Chali that he had been unable to reach the appellant without availing evidence to this effect; and secondly, that the court allowed the respondents to proceed with their counterclaim in the absence of the appellant. 14.5 We will begin by considering the first argument of the appellant which is that whilst Mr. T. Chali, had informed the court that he had attempted to seek instructions from Tombwe Processing he had not shown the court evidence that he had indeed made efforts to contact the appellant. This argument suggests that as a Legal Practitioner Mr. Chali needed to provide evidence to the court of his inability to reach his client. As a Legal Practitioner, Mr. T. Chali is an officer of the court. As an officer of the Court, a Legal Practitioner has a duty to act in a professional manner, J20 trustworthy and to uphold the administration of justice. Trusting an officer of the court is fundamental to the functioning of the legal system. 14.6 Mr. Chali had informed the court that he could not reach the proprietor of Tombwe Processing to obtain instructions. He withdrew from the record on this basis. The Judge trusted the information given to it by Mr. Chali, which decision lay with the court itself. The court had no basis whatsoever not to trust the words of counsel. The contention that there was a requirement for counsel to provide evidence to the court that its client cannot be reached is wholly misconceived. There is no requirement at law for a Legal Practitioner to prove to a court that he has no instructions from his client. We find this argument by the appellant totally flawed. 14.7 The second issue under this ground is whether the trial Judge erred in hearing the counterclaim in the absence of the appellant. A review of the record shows the history of the proceedings in the lower court. The action was commenced on 11 November 2009. The appellant's counsel, Mr. Nicholas Chanda attended court on behalf of the appellant on numerous dates namely between 19 November 2009, 7 December 2009, 8 December 2009, and 17 December 2009 (see pages 466, 467, 468 and 475 of the consolidated ROA). On 25 January 2010, Mrs. Chopota standing in for Mr. Chanda requested for an adjournment. Although the application was vehemently opposed, the court allowed the adjournment to 27 January 2010 (page 476 of the consolidated ROA). 14.8 Orders for direction were issued on 2 March 2010. By the orders, the Judge directed the parties to set down the matter for trial 6 weeks after the close of its pleadings. The bundle of pleadings was filed on 29 April 2010 and J21 with closure of the pleadings, the appellant was to have filed a request to set down the matter for trial by 10 June 2010. The filing of a formal request for setting down for trial signifies, in the opinion of the Advocates, that the case is ready for trial. The request implores the Judge to schedule a time for the trial. 14.9 The respondent's Advocates, Messrs Chashi & Partners filed a request to set down the counterclaim for trial on 6 August 2010 (page 198 of the consolidated ROA). Notably, there is no evidence before us that the appellant's counsel filed a request for a trial date. This implies that the appellant (Plaintiff) was never ready to prosecute its case and proceed to trial. According to the record, no action was taken on the case by the appellant's counsel from 2010 until 2012. This is another instance of the appellant's sleeping on its rights, contrary to the guidance given by the Supreme Court in the Twampane case cited above. 14.10 Page 480 of the consolidated Record of Appeal shows that the matter came up for a hearing before the trial Judge on 9 August 2012. Mr T. Chali was on record as representing the appellant. Counsel submitted before the Court as follows: "We have first received these instructions as H. H. Ndhlovu & Co as caretakers of Nicholas Chanda & Associates. We are asking for an adjournment to enable study the file and obtain instructions from our clients." The Court adjourned the trial of the matter to 30 October 2012. J22 14.11 The matter came up for commencement of the counterclaim on 30 October 2012. Mr. Chanda was in attendance for the appellant. The trial commenced with the respondents opening their defence and counterclaim with their first witness, DWI, by the name of Mr Temba Peter Mliswa who proceeded with examination in chief and was cross-examined by Mr Chali as Advocate for the appellant. Trial ended with the conclusion of DWI 's evidence that day and Court adjourned to 28" and 291h of November 2012. 14.12 On 28' November 2012, the appellant's Advocates was absent. Mr Lukangaba, on behalf of the respondents informed Court that: "I got in charge [touch] with Mr Tresford Chali of H. H. Ndhlovu who are the care takers ofMessrs Nicholas Chanda & Co. They have not received any instruction from the Plaintiff Messrs Tombwe Processing Ltd. I also talked to Mr Chanda on the phone, and he said that that he had liaised with the Managing Director of the company and has not received any instructions and that there is no matter before Court I have four (4) witnesses lined up who have travelled from Zimbabwe.... 14.13 The matter was stood down, when it resumed later that day, Mr Chali was in attendance and informed Court that: "The non-attendance is due to the fact that Tombwe has not had any instructions from our clients. This is despite our ... to them at their request, dated 10/10/12 and also a follow up later dated 18/10/12 advising and also afollow up later dated 18110112 advising them on J23 date of hearing on 30/10/12 which letter was acknowledged the same. In the letter we requested they give instructions on how we proceed or instruct other Advocates. We had not heardfrom them since than the reason we could not attend this morning suffice to say the firm of Mr Chanda is under care and maintenance therefore any undertaking Mr Chanda takes should be proved and verified by Messrs H. H. Ndhlovu & Co. And State Counsel has instructed me to withdraw in this matter due to not availability of instructions. " 14.14 The respondents' Advocate then applied to dismiss the appellant's case based on the appellant's failure to prosecute its action. The respondents also sought permission to proceed with their counterclaim. 14.15 On the basis of this information of the appellant not being responsive, the trial Judge proceeded to hear the counterclaim in the absence of the appellant. The respondents proceeded with a brief re-examination of DW1 and examination in chief of three defence witnesses which marked the end of the respondents' case. The 3 witnesses were not cross-examined, and Counsel for the respondents submitted that they would file written submissions by Friday 30 November 2012. 14.16 Since that date, nothing appears to have happened until after almost 3 years on 13 of July 2015. On this day, Mrs Mweemba appeared for the 2 respondent. There was no appearance for the appellant and Pt respondent. The Court stated as below: J24 "Noting that there was a promise from the Advocates to file in written submissions and only the l Defendant hadfiled by 1 March 2013, the Court will go ahead and write judgment without the submissions from the other interested parties that is the Plaintiff and the 2" Defendant" 14.17 Judgment was subsequently delivered on 21st of October 2015. The foregoing are the facts giving rise to this ground of appeal which contests that the trial Court erred by proceeding with judgment without hearing the appellant's side. 14.18 We note from the proceedings of 9th August 2012 that Mr Chali was on record as representing the appellant and sought an adjournment to enable him to get full instructions to proceed with the matter. The matter was adjourned on this basis and when it came up on 301h October 2012, trial proceeded with the defendant opening their defence and counterclaim. Mr Chali cross-examined the respondents' first witness, DWI. For that day, trial ended with the respondents' first witness. 14.19 On 28 of November 2012, the matter came up for continued trial, but Mr Chali was absent. The matter was stood down and Mr Chali then reappeared to inform Court that he had no instructions from the appellant despite numerous efforts to get in touch with his client and had been instructed by the Managing Partner of his firm to withdraw on that basis. 14.20 Counsel initially affirmed his position before Court that he had been retained by the appellant and needed time to study the record, he was given time and on the subsequent date prosecuted the appellant's case as such. J25 Counsel having earlier confirmed receiving instructions from the appellant, subsequently requested to withdraw from the record based on failure to obtain instructions. Our view is that this was simply an attempt on the part of the appellant to delay or derail the course of justice in this case. 14.21 The appellant brought the action in the High Court on 11 November 2009. Having filed a defence to the counterclaim in 2010, it was fully aware of the counterclaim against it for the value of the missing bales of tobacco. The appellant had a responsibility to defend the claim diligently and promptly to .its logical conclusion. However, the appellant adopted a lacklustre approach in prosecuting its matter, which at the time it came up for trial had already been in the court system for 3 years. Judgment was eventually entered in the counterclaim on 21 October 2015, some 6 years after the action was commenced. 14.22 It is evident that the appellant had not connected with its lawyers for a long period of time such that its Counsel could not prosecute its case or defend the counterclaim against it. Despite bringing the action to Court, the appellant chose to sleep on its rights and the Court had, in the circumstances, the discretion to proceed in dispensing justice in the mailer without the presence of the appellant given the length of time the case had taken and the fact that the appellant was aware of the Court proceedings it had commenced and defended by way of defence to counter-claim. The trial Judge commented that the appellant should have ensured that its matter was being prosecuted and should have taken time to reappoint Counsel. We cannot agree more with the trial Judge. The appellant only has itself to blame for the position it finds itself in, that the counterclaim was heard in its absence. Given the foregoing history, we see no reason to J26 fault the trial Judge's decision to proceed with the trial in the absence of the appellant. This ground of appeal lacks merit and fails accordingly. 14.23 We now turn to address ground 1 which contends that the trial Judge misdirected himself when he awarded the respondent the sum of United States Dollars Two Million One Hundred and Ninety Thousand (US$2,190,000.00) being the value of 6,250 bags of Green Tobacco which went missing from the Pt respondent's warehouse. 14.24 The further contention is that the evidence of the Zambian officers that conducted the investigations had only found 113 bales of Green Tobacco in the appellant's premises and not 6,250 as claimed. Further to that, there was no evidence to prove that amidst the 113 bags that were found at the appellant's premises that the said bags were some of the actual bags that were missing from the Pt respondent's warehouse. 14.25 Under this ground of appeal, Counsel for the appellant cited the case of Galaunia Farms Limied v National Milling Company Limited and National Milling Corporation Limited' in which the court held that, 'A plaintiff must prove his case and if he fails to do so, the mere failure of the opponents defence does not entitle him to ajudgment.' 14.26 Counsel also argued that the claimant has the burden of proving a case on a preponderance of probabilities. The case of Masauso Zulu v Avondale Housing Project Limited' was cited in aid of this submission, where the court held that. '..where a plaintiff makes any allegation, it is generally for him to prove the allegations. A plaintiff who has failed to prove his case J27 cannot be entitled to judgment, whatever may be said of the opponent's case.' 14.27 Similarly, regarding who bears the burden of proof in civil eases the ease of Mazoka and others v Mwanawasa and Others4 was cited, where the court held that, 'As regards burden of proof the evidence adduced must establish the issue raised to afairly high degree of convincing clarity. 14.28 The contention of the appellant under this first ground is that the respondents did not furnish any conclusive evidence to prove that the bags of tobacco found at the appellant's premises were the property of the 2' respondent. The further contention is that there were only 113 bags of tobacco and therefore, the Court was wrong to award the 21111 respondent judgment against the appellant for all the missing 6,250 bags of tobacco without evidence. 14.29 To begin with, from the evidence on record in this case, there is no dispute that bags of green tobacco which were stolen from the Pt respondent's warehouse in Zimbabwe were converted to the appellants premises in Lusaka. This evidence is confirmed by the testimony DW2 appearing at pages 490 to 492 of the consolidated Record of Appeal. The witness testified that the driver of John Mack Haulage by the name of Ackim Washington led them to appellant's premises as the place where the said tobacco had been delivered. 14.30 The witness testified that 113 bales of Tobacco with the respondents' labels of growers from Zimbabwe and heaps of empty bags with the respondents' growers' market were also recovered from the appellant's premises on the J28 first day. This position is also confirmed by DW3 and DW4 at pages 492 to 497 of the consolidated Record of Appeal. On the second day of their intended search for the bags of tobacco at the appellant's warehouse premises, they were restrained by a Court order that the appellant had secured prohibiting the investigations being carried out at the premises. 14.31 The evidence on record indicates that the investigations revealed that the missing 6,250 bales of Tobacco taken from the 1" respondent's premises were delivered to appellant's premises. The evidence on record on this point can be found at pages 185 to 187 of the consolidated Record of Appeal which shows invoices a Zimbabwean transporter had issued for transportation of 28,000Kg of bales of tobacco from the Pt respondent's premises to Lusaka on 31 March 2009, 14 April 2009 and August 2009 respectively. The drivers for the trucks delivering the said tobacco were named as Akim, Washington and Akim respectively. These would appear to be the drivers mentioned in DW2's testimony at page 490 of the consolidated Record of Appeal. The number of bales transported on the three occasions are stated in the said invoices as 140,200 and 240 bales respectively. 1.32 DW2's evidence at the said page 490 was that there were extra 580 bales transported by the said drivers. DW2's evidence particularly at pages 494 was that investigations led them to discover 113 bales of the converted tobacco at the appellant's premises on the first day while the processing in the plant was still on going and on the second day, they were restrained by a Court order. There is no dispute the transportation or conversion of the tobacco was done without the 2"' respondent's knowledge nor the 1st respondent's Consent. J29 14.33 The appellant argued that only 113 bags of Tobacco, and not the entire 6,250 bags were allegedly found on its premises. However, it is common cause that on the second day of the undertaking the search warrant, the Police and the respondents were restrained by Court order from inspecting and examining the remaining Tobacco at the appellant's warehouse. It is tongue-in-cheek that the appellant, who deemed it necessary to obstruct the ongoing inspection of Tobacco at its premises, now laments over the trial Courts inferring from the evidence on record that the appellant received all the 6,250 bags of stolen green leaf (unprocessed) Tobacco from Zimbabwe after discovering 113 bags of Tobacco of the same green leaf Tobacco and heaps of its empty numbered bags at the appellant's warehouse. It was established in the case of Almaz Lulsegen (Female) V British Airways Limited' that civil courts are not precluded from thawing logical and reasonable inferences from evidence presented before Court. 14.3 The contention in Ground 3 is that the trial Judge misdirected himself when he held that the appellant did not adduce any evidence to prove that they purchased the bales of tobacco at an open market as it is trite law that he who alleges must prove and that the respondents did not adduce any evidence to show that the very bales that were found at the appellant's premises belonged to them. 14.35 In addressing ground 3, we begin by referring to past precedence on related issues and how the Apex Court in this jurisdiction has framed the law. The Supreme Court in the case of Lombe Chibesakunda V Rajan Lekhraj Mahtani6 held that 'the normal measure of damages for conversion is the market value of the goods converted'. J30 14.36 Furthermore, in the case of Clement II Mweempe V The Attorney General International Police Avis Rent A Car 7, it was also held that: "The thief or thieves who stole the BMW vehicle from its owner, on 23d May 2002, in South Africa, had no right to sell it to Galedou or anybody else. So, whoever bought it from the thief or thieves never acquired title to it. Accordingly, he passed no title to the 156 appellants." 14.37 Additionally, in another Supreme Court case of Lonrho Cotton Zambia Limited V Mukuba Textiles Limited', which we find largely on all fours with the issues in this case, the Supreme Court also held that: "0) Where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had. (ii) Where goods are sold in the market overt, according to the usage of the market the buyer obtains a good title to the goods, provided he buys them in goodfaith and without notice of any defect or want of title on the part of the owner. (iii) The defendant 'sfactory cannot be said to bean open market or market overt" 14.38 The brief facts of the aforesaid case were that on 20th of July 1997, the appellant dispatched 120 bales of lint cotton weighing 3 tons for export to South Africa through a freight company Walford Meadows. This cotton J31 did not leave the country but was taken to Ndola where it was sold by one Patrick Cholwe to the respondent. Cholwe had represented himself to the respondent as a farmer from Mumbwa and sold the cotton to the respondent as his own. Cholwe was subsequently apprehended by the police and prosecuted and convicted of theft of the cotton. By the time the theft was discovered the respondent had used up the cotton at its factory and the appellant instituted proceedings against the respondent to recover the value of the cotton. The learned trial Judge upon consideration of section 21, 22 and 23 of the Sale of Goods Act 1893, found that the respondent had acquired good title to the cotton and disputed the appellant's claim hence the appeal to the Supreme Court. 14.39 In the said case, the Court in its concluding paragraph stressed as follows: "It is common cause that the lint cotton which was sold to the defendant was the property of the plaint)ff. It is also common cause that the person who sold the cotton to the defendant, one named Cholwe, was prosecuted for and convicted of the offence of theft. From the evidence on record, there can be no question of the plaintiff by its conduct having clothed Cholwe with any authority to sell the cotton on its behalf The defendant could only acquire title if it can be shown that it bought the cotton in good faith without notice of any defect or want of title and that the sale took place in a market overt. The evidence on record is that the defendant was approached by Cholwe at its factory where the negotiations took place, and the sale was concluded The defendant 'sfactory cannot be said to be an open market or market overt by any stretch of the imagination. The defendant cannot therefore avail itself of the provisions ofSection 22 of the Sale of Goods Act. The learned trial Judge had also made a finding that J32 4 (cid:9) •S Cholwe had acquired a voidable title which he passed on to the defendant pursuant to Section 23 of the Sale of Goods Act. This finding flies on the fence of the evidence that Cholwe was prosecuted and convicted of the theft of the cotton. He had no title, voidable or otherwise that he could pass on to the defendant. For these reasons, we would allow the appeal and set aside the judgment of the court below and enter judgment for the plaintiff for the amount endorsed on the writ of summons with interest at the rate of 10% per annum from the date of issue of the writ till payment and costs. The costs are to be taxed in default of agreement" 14.40 From the foregoing authorities and the facts of this case, it is inconsequential how the respondent's tobacco was delivered to the appellant's premises. It is without doubt, that the said tobacco was delivered to the appellant without the consent of its owner, the 2nd respondent. Further, the delivery of the said tobacco cannot be deemed to have been a procurement on the open market by the appellant, firstly as the evidence on record is that it is illegal to export green leaf (unprocessed) Tobacco from Zimbabwe and secondly, the appellant's warehouse cannot be termed as market overt for the appellant to avail itself of the provisions of the Sale of Goods Act. 14.41 As such, the appellant could not have acquired a good title to the Zimbabwean Tobacco. The Court further adjudged that the appellant must pay the 2nd respondent for the value of 6,250 bags of green leaf Tobacco which had gone missing from the 1St respondent's warehouse. Based on the foregoing, we find no basis to interfere with the trial Judge's finding of fact regarding the bags of Tobacco and the Court's determination that the J33 I. (cid:9) - appellant must pay for the market value of the Tobacco. For the above reasons, Grounds 1 and 3 of the appeal are therefore unsuccessful. 14.42 The appellant in their fourth ground of appeal contends that the l respondent having not given any instruction to any lawyers in Zambia to pursue any matter against the appellant makes the judgment that was obtained in the High Court against the appellant a nullity and a grave miscarriage of justice and that it should be set aside. 14.43 Our position regarding the fourth ground of appeal is that the same is misplaced as the appellant has no standing, capacity, or interest to raise such an argument or contention on behalf of the I "respondent. This ground also fails for the same reason. Given our determinations in ground 2 and 4, it also follows that the grounds 2 and 3 against the ruling are equally unsuccessful. 14.44 Before concluding, we observe that this case has been in the Court system for approximately 14 years having commenced in November 2009. It is highly undesirable that litigation proceedings drag on for such a significant period. To maintain public confidence in the legal system, it is imperative that cases are concluded without delay. 14.45 A glance at the index of the record of appeal in this case reveals of the numerous applications brought before the courts in this matter. The appellant's counsel from the firm of Paul Norah Advocates concedes in their arguments of 7 May 2021 (page 369-372 of the consolidated ROA) that 'there has been a lot of activity in this matter..' After judgment, the appellant further filed an application for review of the judgment. J34 Being unsuccessful, the appellant brought another application to set aside the said judgment. Despite this fact, the appellant yet again brought this appeal making a further attempt to have this matter returned to the High Court for are-hearing. This is notwithstanding the guidance of the Supreme Court that there must be an end to litigation. 14.46 We must make clear that while parties have a legal right to access the judicial system, they do not have an absolute right to litigate endlessly, application after application, in an attempt to achieve a desired outcome. Litigants must be guided to appreciate that their legal rights are subject to limitation and to consideration for judicial time which should not be abused. 15.0 CONCLUSION 15.1 Given the foregoing, the appellant's appeals are unsuccessful in their entirety. The appellant to bear the costs of the 2nd respondent, to be taxed in default of agreement. C. F. R ché DEPUTY JUDGE PRESID g A. M. Banda-Bobo COURT OF APPEAL JUDGE N. A. Sharpe-Phir COURT OF APPEAL JUDGE J35