Tombwe Processing Limited v Jonathan Moono (APPEAL NO. 43/2008) [2013] ZMSC 65 (11 September 2013)

J1 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 43 / 2008 BETWEEN: TOMBWE PROCESSING LIMITED AND JONATHAN MOONO APPELLANT RESPONDENT Coram: Chibesakunda, Ag. CJ., Phiri and Muyovwe, JJS. On 10th August, 2011 and 11th September, 2013 For the Appellant For the Respondents Mr. W. Muleza of Muleza and Company Mr. A. Wright of Wright Chambers JUDGMENT Chibesakunda, Acting CJ., delivered the Judgment of the Court. Cases Referred to:- 1. Abraham Mohammed and Atlamtara Transport Limited v. Safeli Chumbu, (1993/1994) ZR4; 2. Lambe Chibesakunda v. Rajan Mathani, (1996) S . J 39; • 3. Currie v. Misa, (1975) L. R 10. Exel. 153 at 162; 4. Burton Construction Limited v. Zaminco Limited, SCZ Judgment No. 18 of 1983; 5 . Anderson Mazoka and Others v. Mwanawasa and Others, (2005) ZR 183; 6. Parpaite Freres v. Dickson, (1878) 26 WD QBD; J2 7. Courtiney and Fairbairn Limited v. Tolaini Brothers, (1975) 1 ALL ER 716; 8. Nkhata and Others v. Attorney-General, (1966) ZR 124; 9. George Malachi and Mabuye v. Council of Legal Education, ( 1985) ZR 10; 10. Benmax v. Austin Motor Co. Limited 11. Collett v. Van Zyl Brothers Limited, (1966) ZR 65; and 12. Wilson Masauso Zulu v. Avondale Housing Authority (1982) ZR 176 This matter consists of two appeals from the High Court; the main appeal and a cross-appeal by the Respondent, against a judgment entered in favour of the Appellant, on its counter-claim. The history of this matter is that on 9 th November, 2005, the Respondent commenced an action in the High Court, against the Appellant, by writ of summons accompanied with a statement of claim. By the said action, the Respondent claimed the following reliefs: (i) the sum of US$ 26, 250.00 being the value of the Respondent's goods, namely 3.5 x 5 hectarage of tobacco leaf, wrongfully detained and/ or converted by the Appellant on or about 4 th October, 2005, at the J3 - - - - - - - - - - - - - - - - - - - - - - - - Respondent's farm known as Malayila Farm in Malayila Village; (ii) damages for conversion and detention and, in the alternative, loss of profit; and (iii) interest, costs of the action and any other relief the court could deem fit. The statement of claim disclosed that on or about 4 th October, - ~ 2005, the Appellant took 3.5 x 5 hectarage of tobacco from the Respondent's farm. That, by a letter dated 10th October, 2005, the Respondent asked the Appellant to return the tobacco but the Appellant refused. That consequently, the Respondent suffered loss of profit as he had entered into a contract whereby he was supposed to supply the tobacco to a third party. In reaction to the statement of claim, on 4 th November, 2005, the Appellant filed a memorandum of appearance accompanied by a defence. In the said defence, the Appellant conceded that it sent its employees to get tobacco from the Respondent's farm. That the quantity of tobacco taken was , however, not 17.5 tons but 500 kg. That the Appellant took the tobacco in accordance with a loan agreement between the parties whereby, in consideration of farming inputs supplied to the Respondent on credit, the Respondent undertook to sell to the Appellant all tobacco produced by him, in order to repay the loan. That the Respondent failed to repay the loan. J4 The defence also contained a counter-claim where the Appellant asserted that the Respondent owed the Appellant US$ 1, 520.00, as an outstanding balance on the fertilizer that the Respondent obtained from the Appellant under this said loan agreement. In support of his allegations, the Respondent relied only on his own testimony. He told the trial court that on 4 th October, 2005, he left his tobacco farm and travelled to Chipata. That before he left the farm, he harvested the tobacco and placed it in sheds. That the quantity of the tobacco he harvested was from 3.5 x 5 hectarage, which was 17.5 tons, valued at US$ 26,250.00. That while in Chipata, he received a call from one of his farm workers who informed him that there were some people who had gone to the farm to collect the tobacco. The Respondent went on to testify that he returned from Chipata on 6 th October, 2005 and went straight to • his farm. That he found that all his tobacco had been taken away. That upon his return, he and his workers reported the matter to the police who issued him with a police report. That, however, he later learnt that the tobacco was taken by people from the Appellant Company who claimed that he owed the Company some money for an input loan he had obtained from the Appellant during the 2004/2005 farming season. The Respondent denied getting any input loan from the Appellant during the 2004 /2005 farming season. He explained to the trial court that the only input loan he got from the Appellant was during the 2003/2004 farming season '. JS when he got inputs worth US$ 1,800.00 and that he fully repaid the said loan. That even if he was indebted to the Appellant in the claimed amount, the tobacco it took from his farm was worth US$ 26,250.00 which was way over the amount claimed by the Appellant. It was his further testimony that on 17th March, 2005 , he had taken out an insurance policy with Professional Insurance Limited, insuring the tobacco against hail, fire, theft, malicious damage and accident. That the insurance company placed the value of the tobacco at US$ 26 , 250.00 which, according to him, was the same value he had calculated to receive if he had sold the tobacco taken by the Appellant on the open market. That in fact , he had entered into a contract with Stancom Tobacco (z) Limited (hereinafter referred to as "Stancom") to sell the tobacco at that amount. In defence to the Respondent's claims and in support of its counterclaim, the Appellant called three witnesses. DW 1 was Phyllis Chomba Chibende, a Management Trainee in the Appellant Company. Her evidence was that according to the contract signed by the Appellant and the Respondent, the Respondent was obliged to sell all the tobacco, falling under the agreement, to the Appellant. That the Respondent only delivered 15 bales of tobacco weighing 570 kilograms and valued at US$ 342.00, on 13th September, 2005. That when contacted, the Respondent said that he had failed to deliver the tobacco because he did not have transport. That J6 consequently, the Appellant's Operations Manager sent one of the Company's extension officers, Mr. Shelton Banda, with a canter to go and collect the tobacco. That there was urgent need to transport the tobacco because the longer it remained on the farm the more its quality would have deteriorated. DW2 was Miyoba Hamoonga, a Leafman in the Appellant Company. He testified that the loan agreement between the Appellant and the Respondent was signed by a Mr. B. Moono on behalf of the Respondent. That he knew Mr. B. Moono as a brother to the Respondent and as Farm Manager of the Respondent's farm. That during the 2004/2005 farming season, the Respondent obtained inputs from the Appellants as reflected on invoice No. 01815 dated 1st November, 2004 and 03529 dated 16th December, 2004. That the total value of the inputs received by the Respondent was US$ 1,862.50. That during the 2004/2005 harvest season, the only tobacco delivery made by the Respondent to the Appellant was on 13th September, 2005. That the delivered tobacco was worth US$ 342 and this amount was credited to the Respondent's account thereby reducing his indebtedness to US$ 1,520.50. The last witness called by the Appellant was Shelton Banda, an Extension Officer in the Appellant Company. DW3 testified that the Respondent's brother signed the loan agreement on behalf of the Respondent. That it was this brother who was running the farm because the Respondent was rarely at the farm. J7 ----- - - - - - - - -- - - - - - --------- --- - - - - - - - - - - - - On the evidence before him, the learned trail Judge found as follows: "the (Appellant) in their own evidence did admit that in the absence of the (Respondent), they did collect tobacco from the (Respondent's) farm, which they allege that it was about 500 kg, and of a lower standard. However, the (Appellant) has not adduced evidence from an independent source apart from the evidence of (its) employees to the effect that the said tobacco was substandard. The evidence of the (Respondent) shows that the (Respondent) did insure his crop for the value he now claims. After having considered the entire evidence, I am satisfied that the (Appellant) did collect tobacco from the farm of the (Respondent) while the (Respondent) was in Chipata. I reject the evidence of the (Appellant) that the tobacco they collected was of substandard. I therefore, find for the (Respondent). Costs shall follow the event." Dissatisfied with the learned trial Judge's judgment, the Appellant has appealed to this Court on the following grounds: 1. the learned trial Judge erred in law in not adjudicating on the Appellant's claim; J8 2. the learned trial Judge erred in law and in fact by not adjudicating on every aspect of the case, namely the fact that the contract between the parties where the Respondent was to sell all the tobacco to the Appellant and the fact that the Respondent also sold tobacco to some other buyers; 3. the learned trial Judge erred in law and in fact in not questioning and enquiring into how 17.5 tons of tobacco worth US$ 26,250.00 could have been ferried in one ton truck since it was common ground and there were documents before the court on this point; and 4. the learned trial Judge erred in awarding damages by basing upon the insurance value of the tobacco and not on the market at the time of the alleged loss in accordance with the case of Abraham Mohammed and Alantara Transport Limited v. Safeli Chumbu (1994) Z. R 4. In his Judgment, the learned trial Judge omitted to decide on the counter-claim raised by the Appellant. This Court, therefore, referred the matter back to the High Court for determination of the counter-claim. The counter-claim was decided by another High Court Judge who found that the Appellant had proved its counter claim of US$ 1,520.00, on a balance of probabilities. Dissatisfied with this decision, the Respondent has cross-appealed on the fallowing grounds: J9 1. the finding of the court below that the Appellant supplied - · - - - - - - · - · - - - - - - - - - - and/or delivered to the Respondent "50 x 50 kg 'B' Comp" and "25 x 50 kg urea", is unsupported by the pleadings and/ or the evidence or testimonies on the record; 2. the court below misdirected himself at law when he failed to take into account that the Appellant's counter-claim was anchored on a "Loan Agreement" and not on "Delivery Notes" or "Invoices"; 3. the court below failed to draw the proper conclusion and/ or failed to draw the proper inferences given the evidence on record; and 4. the award of costs in the circumstances of this case was injudicious. In support of the grounds of appeal raised in the main appeal, Counsel for the Appellant relied on his filed written Heads of Argument. He abandoned ground one which had been overtaken by the reference of the counter-claim to the High Court for determination. In ground two, Counsel contended that the loan agreement between the parties was valid and enforceable although the amount of the consideration was not indicated in the agreement. That the amount of the consideration could be deduced from the two delivery notes and the farmer's statements produced in evidence, by the Appellant, in the court below (see pages 64, 76 and 78 of volume I JlO - - - -- - - - - - - - - - - --- of the record of appeal). That, the farmer's statement showed that the total amount for the fertilizer supplied to the Respondent was US$ 1,862.50. That the Respondent did not adduce any evidence to show that he had paid the Appellant for the fertilizer delivered to him on credit. On ground three, Counsel argued that the learned trial Judge misdirected himself by failing to question how the 1 7. 5 tons of tobacco could have been ferried in a three ton truck. That the learned trial Judge should have taken into account DW3's evidence that the vehicle used to transport the tobacco was a three ton canter truck, registration number AAP 1799. As regards ground four, Counsel submitted that the learned trial Judge erred in law and in fact by awarding damages based upon the insurance value of the tobacco. Counsel contended that the evidence before the trial Judge showed that the quantity of tobacco taken by the Appellant was 5 carton boxes and not 17.5 tons. Counsel cited the cases of Abraham Mohammed and Alamtara Transport Limited v. Safeli Chumbuf1J and Lombe Chibesakunda v. Rajan Mathanif2J, to support his arguments under this ground. In response, Counsel for the Respondent also relied on his filed heads of argument. On ground two, Counsel submitted that the loan agreement relied on by the Appellant to get the J11 Respondent's tobacco was invalid and unenforceable for want of valuable consideration. That, in addition, the said agreement was not signed by the Respondent and it could not, therefore, bind him. He cited the case of Currie v. Misaf3J, to buttress his arguments. Counsel went on to argue that even assuming that the loan agreement was binding, there was no term in the said agreement that gave authority to the Appellant to enter the Respondent's farm and collect his produce. To reinforce this argument, he referred us to this Court's decision in Burton Construction limited v. Zaminco Limitedf4J. With regard to ground three, Counsel submitted that this ground was misconceived as it referred to 500 tons of tobacco which was not in the pleadings in the court below. We have noted that indeed ground three refers to 500 tons of tobacco. However, we have also seen that Counsel for the Appellant corrected this error in his heads of argument by replacing "500 tons" with "17.5 tons" (see page 3, line 1 of the Appellant's heads of argument for the main appeal) . With regard to ground four , Counsel argued that the court below did not entirely base the award of damages on the insurance value . That the learned trial Judge took into account the market value as there was evidence to show that the insurance value was , . J12 the same as the market value of the tobacco. He cited this Court's decision in Lorn.be Chibesakunda v. Rajan Mathanit2J, to augment - - - - - - -- - - - - his arguments . In support of the cross-appeal, Counsel for the Respondent combined his arguments for ground one with those for ground two. Counsel submitted that the court below should not have taken into account the delivery notes because the Appellant's counter-claim - was anchored on the loan agreement. To support these arguments, Counsel referred this Court to Anderson Mazoka and Others v. Mwanawasa and Others{5J and Parpaite Freres v. Dickisont6J. Counsel further argued that the delivery notes did not show the prices for the goods allegedly supplied to the Respondent and that, therefore, there could not have been a valid contact between the Appellant and the Respondent. Counsel cited Chitty on Contract 28th Edition volume 2 page 111 O, paragraph 43-038, to support this argument. He also cited the case of Courtney and Fairbairn Limited v. Tolaini Brothers{7J. On ground three, Counsel argued that the learned trial Judge should not have relied on the 'farmer 's statement of account without opening balance ,' appearing at page 71 of the further supplementary record of appeal, because the Appellant's counter claim was made 1n November, 2005 but the said statement indicated that the balance was due on 14th May, 2006. Counsel J13 prayed that this Court should interfere with the learned trial Judge's findings of fact on the authority of Nkhata and Others v. Attorney-Generalf8J, George Malachi and Mabuye v. Council of Legal Educationf9J and Benmax v. Austin Motor Co. Ltd<10J. With regard to ground four, which related to the award of costs, Counsel conceded that by virtue of Order 40 rule 6 of Cap 27, the learned trial Judge had the discretion to award costs to the Appellant. But that the learned trial Judge did not exercise his discretion judicially. Counsel cited Collett v. Van Zyl Brothers Ltdf11J to buttress this argument. In response to the arguments on the cross-appeal, Counsel for the Appellant relied on his filed written heads of argument. Counsel countered grounds one and two by contending that the Appellant's counter-claim was based on the fact that there was a loan agreement where the Appellant supplied agricultural inputs to the Respondent and that the said loan was supposed to be repaid, by the Respondent, by delivering tobacco equivalent to the loan amount to the Appellant. Counsel further submitted that the issue of the delivery notes was raised in the court below at page 84 of the record of appeal and that the learned trial Judge was, therefore, on firm grounds when he relied on the delivery notes. He cited the case of Anderson ' j L J14 Mazoka and Others v. Mwanawasa and Others5J, to support the foregoing arguments. Coming to ground three, Counsel argued that the court below drew proper conclusions and inferences in reaching the decision it reached. On ground four, Counsel argued that having found for the - Appellant on the counter-claim it was right for the learned trial Judge to hold that costs would follow the event. We have looked at the evidence on record as regards the main appeal and the cross-appeal, the submissions by both parties and the judgments appealed against. We will start with deciding on the cross-appeal. In our view, the issues for our determination are simply- (a) whether the Respondent owed the Appellant the amount of US$ 1,520.00, which was claimed by the Appellant in its counter-claim and; (b) whether the learned trial Judge properly directed himself when he awarded costs to the Appellant after finding that the Appellant had proved its counter-claim. The mru.n argument advanced before us on behalf of the Respondent was that the court below should have entirely relied on the loan agreement and should not have taken into account the ; . J15 delivery notes as forming part of the said agreement. We do not agree with this argument. In our view, the contract between the parties consisted of the loan agreement, the delivery notes and the 'farmer's statement without opening balance '. The consideration under the loan agreement could only be ascertained by taking into account the three sets of documents. DW3 explained to the trial court that the practice by the Appellant, in its business of financing farmers, was to calculate the total value of inputs supplied to a farmer, after it had ascertained that no further inputs would be delivered to that particular farmer. From the foregoing , it is our considered view that the delivery notes and the farmer 's statement formed part of the loan agreement between the Appellant and the Respondent as the complete agreement between the parties could only be ascertained by taking into account the three sets of documents. It is trite law that where it appears to the court that a contract was not intended to contain the entire agreement of the parties the court can consider extrinsic terms additional to those contained in the contract. The instant case is a proper example of an exception to the 'parol evidence rule '. The learned authors of Cheshire and Fifoot's Law of Contract (9th edition) have said, at page 114, that the parol evidence rule is not limited to oral evidence. That one of the exceptions to the rule is that "in the first place, the evidence may be admitted to prove a custom or trade usage and thus to 'add' terms which do not appear on the face of the document and which alone give it the meaning which the parties wished it to possess". Similarly, the learned authors of Chitty on Contracts, Volume I, 30th edition, have said at page 865, paragraphs 12-096 and 12-097, that the operation of the parol evidence rule is not confined to oral evidence; it has been taken to exclude extrinsic matter in writing. They have pointed out that: "however, the parol evidence rule is and has long been subject to a number of exceptions. In particular, since the nineteenth century, the courts have been prepared to admit extrinsic evidence of terms additional to those contained in the written document if it is shown that the document was not intended to express the entire agreement between the parties .... It cannot therefore, be asserted that, in modern times, the mere production of a written agreement, however complete it may look, will as a matter of law render inadmissible evidence of other terms not included expressly or by reference in the document. The court is entitled to look at and should look at all the evidence from start to finish in order to see what the bargain was that was struck between the parties." The Respondent has also argued that he did not sign the loan agreement and that, therefore , the said agreement cannot bind him. - --. J17 After studying the evidence on record, we are inclined to believe the evidence of the Appellant's witnesses, DW2 and DW3, that the person who signed the agreement on behalf of the Respondent was his brother and manager of his farm or, at the very least, a person whom he had presented as such. There is undisputed evidence on the record that the Respondent was rarely at his farm as he was working in Lusaka and , therefore , he used to spend most of his time in Lusaka. Although the Respondent said that he had farm workers, he did not bring any of his workers to come and shed light on who was managing the farm on a day-to-day basis in the light of the assertion that the Respondent was not spending most of his time at the farm and that the Appellant was invariably dealing with his brother. For the foregoing reasons , we hold that the loan agreement was validly signed, by Mr. B . Moono, on behalf of the Respondent. We now have to ascertain the exact amount owed by the Respondent to the Appellant under the counter-claim. The delivery notes show that the Respondent got 50 x 50 kg 'B ' compound fertilizer and 25 x 50 kg urea fertilizer from the Appellant. The 'B' compound fertilizer was delivered to the Respondent on 1st November, 2004 (see page 57 of the further supplementary record of appeal) while the urea fertilizer was delivered on 16th December, 2004 (see page 73 of the further supplementary record of appeal) . Consistent with DW3's evidence , the two delivery notes did not J18 - - - - - - -- - - - contain amounts for the fertilizer supplied to the Respondent. It was indicated that the values would be advised. The values were subsequently indicated in the 'Farmers Statement Without Opening Balances' as US$ 1,300.00 for the 50 x 50 'B' compound fertilizer and US$ 562.50 for the urea fertilizer (see page 52 of the further supplementary record of appeal). This brought the total amount under the loan agreement to US$ 1,862.50. However, the farmer's statement shows that the said loan amount was later reduced by US$342.00 which was credited to the Respondent's account for the tobacco he delivered to the Appellant in September, 2005. This then brought the outstanding balance to US$ 1,520.50. There is no evidence on record to prove that the Respondent paid this outstanding amount to the Appellant. We, therefore, hold that the Appellant proved its counter-claim against the Respondent. Accordingly, we hold that the Respondent's cross-appeal must fail. We have, however, noticed from the record that in its counter claim, the Appellant actually claimed for US$ 1,520.00 instead of US$ 1,520.50. We, therefore, enter judgment for the Appellant for the sum of US$ 1,520.00, together with interest from the date of the trial court's judgment, in accordance with the Judgment Act, Chapter 81 of the Laws of Zambia. J19 As for ground four of the cross-appeal, which questions the award of costs to the Appellant, we are of the view that the learned trial Judge complied with Order 40 rule 6 of Cap 27. - - - - - - - - - Coming to the main appeal, we will deal with all the three grounds of appeal together as they are related. In our view, the main issues for our determination are: (a) whether the Appellant was entitled to get the tobacco from the Respondent's farm; and (b) what quantity of tobacco the Appellant actually got. As we have already decided, when dealing with the cross appeal, there was a valid loan agreement between the Appellant and the Respondent under which the Respondent still owed the Appellant an outstanding balance of US$ 1,520.50. A perusal of the loan agreement shows that it obliged the Respondent to sell all the tobacco he produced to the Appellant. DW l's testimony shows that for the 2004 / 2005 farming season, the Respondent did not deliver his tobacco to the Appellant as required by the loan agreement. That his excuse was that he did not have transport. That as a result, the Appellant decided to arrange its own transport and sent its officers to go and get the tobacco from the Respondent's farm. In our considered view, from the evidence on record, the Respondent did not have any intention of delivering the tobacco to J20 the Appellant. In fact, at the time the Appellant went to collect the tobacco from the Respondent's farm, he had travelled to Chipata without first making arrangements for the tobacco to be transported to the Appellant. Furthermore, at pages 53 and 54, of the further supplementary record of appeal, there is an e-mail and a payment control voucher, respectively, which plainly show that, instead of - taking his tobacco to the Appellant, the Respondent sold some of it to Stancom. This was contrary to the loan agreement which required him to sell all his tobacco to the Appellant. On the basis of the foregoing evidence, we are of the view that there was nothing wrong with the Appellant collecting the tobacco from the Respondent's farm. The Appellant was entitled to the tobacco under the loan agreement. We do not, therefore, agree with the argument by the Respondent that the Appellant committed a trespass or conversion. In our view, the Burton Construction Limited Casef4J, relied on by the Respondent, IS very distinguishable from the instant case. In the Burton Construction Limited Casef4J the agreement between the parties was a hire purchase agreement where the plaintiff bought a quarry equipment from the defendant. The parties agreed that the ownership of the equipment passed upon the signing of the agreement. The plaintiff defaulted In paying the installments thereby prompting the defendant to repossess and auction the equipment. The plaintiff J21 then sued the defendant for damages for trespass to, and conversion of, the equipment. We said that "under a hire-purchase agreement .... goods are sold on credit and any seizure by the seller thereafter constitutes a trespass and conversion." In our view, unlike the position in the Burton Construction Limited Casef4J, the agreement between the parties, in the instant case, was not a hire-purchase agreement but a loan agreement. In addition, the Appellant did not seize the fertilizer it had supplied to the Respondent under the loan agreement but it collected the tobacco to which it was entitled under that agreement. For the foregoing reasons, we hold that the Appellants were impeccably entitled to collect the tobacco from the Respondent's farm. With regard to the quantity of tobacco collected by the Appellant, we are inclined to believe the evidence of the Appellant that it only collected 5 carton boxes of tobacco weighing 500 kg. We say so because, in our view, the evidence of the Respondent failed to prove, on a balance of probabilities, -that the Appellant collected 17.5 tons of tobacco. Firstly, although the Professional Insurance Company documents indicate that the Respondent insured 17.5 tons of tobacco at a total sum of US$ 26, 250 .00, it does not follow, ipso J22 facto, that the 17.5 tons was the actual quantity that was taken by the Appellant (for the insurance documents, see pages 42-53 of volume I of the record of appeal). Our conclusion is based on the following facts: (a) The insurance cover was done in March, 2005 while the Respondent alleges that the Appellant took his tobacco in October, 2005. The Respondent did not adduce any evidence to show that the quantity of the tobacco remained constant from March, 2005 to October, 2005. In fact, the evidence on record shows the converse. Further, as already shown elsewhere in this judgment, the evidence on record shows that on 13th September, 2005, the Respondent delivered to the Appellant 15 bales of tobacco valued at US$ 342 .00. Clearly, this effected a subtraction from the quantity of the tobacco valued by the insurance company. (b) There is evidence on record that the Respondent sold part of the tobacco he harvested during the 2004/2005 farming season, to Stancom. This can be seen from the e-mail and the payment control voucher, already referred to in this judgment. The e-mail shows that the Respondent sold 802 kg of tobacco to Stancom. As for the police report, it is our view that we cannot rely on it as establishing the true quantity of tobacco taken by the Appellant. In our view, the police report is not authentic in so far as proving the exact quantity of the tobacco is concerned. The police report shows ' l I 1 ' J23 - - - - - - - - - - - - - - - that the matter was reported to the police on 19th January, 2006 (see page 47 of the further supplementary record of appeal). This means that the Respondent obtained the police report way after he had instituted this matter in the High Court. He commenced this matter in the High Court on 9 th November, 2005 (see pages 17 and 18 of the further supplementary record of appeal). Furthermore, according to the police report, efforts to locate the lost tobacco had failed despite the police giving the Respondent enough time to look for it. However, the evidence on record clearly establishes that the Respondent discovered who had taken his tobacco about three months before the police report was generated. This can be seen from the letter his lawyers, Wright Chambers, wrote to the Appellant on 19th October, 2005, demanding payment of US$ 26,250.00 as the amount for 3.5 x 5 hectarage of tobacco which the Appellant had taken from the Respondent's farm (see page 46 of the further supplementary record of appeal). For the foregoing reasons, we are of the view that the police report is not authentic . It was obtained by the Appellant as an afterthought. We cannot, therefore, accept the quantity of tobacco indicated in the said report as being the true amount of tobacco that was taken by the Appellant from the Respondent's farm. Besides the foregoing, there is evidence from DW2, Miyoba Hamoonga, that the Appellant transported the tobacco in a three • J24 ton truck, registration number AAP 1799. This evidence was never challenged by the Respondent. Although the Respondent claimed that his farm workers were present when the Appellant took the tobacco, he did not call any of the workers to come and support his claim that the Appellant got 17.5 tons of tobacco . In our view, this was a grave omission especially in the light of the fact that the Respondent was not present himself when the tobacco was taken. In the circumstances, we believe the evidence adduced on behalf of the Appellant and hold that the Appellant collected 5 boxes of tobacco weighing 500 kg. However, we do not agree with the Appellant that the 5 carton boxes of tobacco, weighing 500 kg, which they collected from the Respondent's farm, were substandard. The Appellant did not adduce convincing evidence to that effect. If the tobacco was substandard the Appellant should have given it back to the Respondent. On the totality of the evidence on record, we hold that the Respondent failed to prove his claims to the required standard. The burden of proof was entirely on the Respondent to establish his allegations on a balance of probabilities. We said in Wilson Masauso Zulu v. Avondale Housing Authority12J, that: • J25 " ... where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed any other case where he makes any allegations, it is generally for him to 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. In affirming what we said in the Wilson Masauso Zulu Case<12J, we hold that the Respondent failed to prove his case on a balance of probabilities. We hold that the Appellant's appeal must succeed. In the circumstances, we will refer this matter to the learned Deputy Registrar for the determination of the value of the 5 boxes of tobacco weighing 500 kg. We order each party to bear their own costs both in this court and in the court below. L. P. Chibesakunda ACTING CHIEF JUSTICE G. . hiri SUPREME COURT JUDGE E. N. C. Muyovwe SUPREME COURT JUDGE