Zambia Revenue Authority v Independence Service Station (Appeal 137 of 2000) [2002] ZMSC 141 (21 May 2002)

IN THE SUPREME COURT OF ZAMBIA - APPEAL NO 137/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ZAMBIA REVENUE AUTHORITY AND INDEPENDENCE SERVICE STATION - - APPELLANT RESPONDENT CORAM: LEWANIKA, DCJ; CHIRWA JS, AND MAMBILIMA IS ON 29th March 2001 and 21st May, 2002. For the Appellant; Ms C Shapi, Legal Counsel, Zambia Revenue Authority For the Respondent; Mrs I Kunda, George Kunda and Company JUDGMENT Mambilima J S, delivered the judgment of the Court. Authorities referred to: (1) Augustine Kapembwa vs Danny Maimbolwa and the Attorney General [ 1981) ZLR 127. (2) Kenmuir vs Hattingh SCZ Judgment No. 31S 1971. (3) Nkhata and Four Others vs The Attorney-Genera I 1966 ZR 124. (4) The Attorney-General vs arcus Kampumba Achiume 1983 ZR 1 : J 2 : This is an appeal against the judgment of the High Court ordering the Appellant to release the Respondent's truck registration number ACE 3198/ACB 6334T which it had impounded, threatening to have it forfeited to the State, if the Respondent did not pay a sum of K6 million. The Respondent had moved the Court below by way of Judicial Review in which it challenged the decision of the Appellant intending to seize it's truck for alleged failure to pay duty on batteries transported on the truck. The facts which were before the lower Court were that the said truck was hired from the Respondent by a Mr Salimu Lubumbashi to transport torch cells from Ndola to Kasumbalesa. The said cells were in the Appellants warehouse in Ndola. The exporter escorted the truck from Kitwe up to Kasumbalesa. He went ahead of the truck and cleared at all check points as a result of which the truck was signaled to go through at each of these points. The truck was entered as having passed through the road block at Kafue bridge. At Kasumbalesa Border Post, the exporter assisted the driver to get a gate pass. This was produced in evidence in the Court below. Records at the Customs Offices at Kasumbalesa showed that the truck had crossed into the Democratic Republic of Congo. The Appellant contended that the consignment may not have left Zambia for the Democratic Republic of Congo because the relevant documents bore no signatures or the Customs Officers although they bore an official stamp. It was also contended that the exporter had no original documents and that there were no records to show that the truck had re-entered Zambia. The Appellant also alleged that the truck had not passed through Kafue bridge check point but that the officers there had entered the truck in their records on the instructions of the exporter. : J 3 : After evaluating the evidence before him, the learned trail judge found that there was convincing evidence that the truck in question was loaded with the consignment and that it passed through the Kafue Bridge check point. The court also found undisputed evidence that the driver of the truck was given a gate pass at Kasumbalesa Border Post authorizing him to enter the Democratic Republic of Congo. The court concluded that the consignment did enter Congo and rejected the insinuations that records showing that the truck entered Congo were a forgery for lack of proof and granted the prayer sought. The Appellant has advanced five grounds of appeal, namely; Ground 1 The court erred in law and in fact by not taking into account the evidence adduced by the two police officers manning the Kafue Bridge to the effect that although the details of the truck were recorded in the book, the truck with it's driver did not pass as the entry was made with the belief that the truck would later pass. Ground 2 The Court erred in law and in fact by not having regard to the fact that no details of the driver or the truck that he was driving appeared at the Immigration Border Poster Register thereby raising an inference that there was no exit from Zambia by the driver and that if indeed he had gone to the Congo Democratic Republic, then there would have been details showing the re-entry of the driver and his truck. : J 4 : Ground 3 The Court erred in law and in fact by relying on the evidence of a gate pass per se as undisputed evidence that the driver entered Congo Democratic Republic when the said gate pass is not proof of exit within the requirements of the Immigration Act. Ground 4 The Court erred in law and in fact by not taking into account the evidence adduced by the Respondent that although the so called copy of the acquittal had a customs stamp, it did not bear an officer's signature to make it credible and authentic. Ground 5 The Court erred in law and in fact in awarding damages to the Applicant as the detention of the truck was not unlawful or wrongful on the part of the Respondent, this being within the law as enshrined in the Customs and Excise Act. On the first ground of appeal, Ms Shapi referred to page 9 of the Record of Appeal, to a portion of the Judgment of the lower Court in which the learned trial Judge referred to the evidence of the Police Officers manning the check point at Kafue Bridge that the truck had passed through there, which evidence according to the trial Judge was also accepted by the Appellant. According to Ms Shapi, the Appellant does not dispute that entries were made in the Register. She submitted that the Judge misdirected himself in fact and erred by not : J 5 : considering the evidence of the two Policemen who in their testimony said in no uncertain terms that the truck in question did not pass through the road block. According to Ms Shapi, the Judge, not having taken into account this evidence, fell into a serious error upon which the Appellate Court should consider the Judgment arrived at. She has referred us to our decision in the case of Augustine Kapembwa vs Danny Maimbolwa and the Attorney-General (1) in which we laid down the principles under which an Appellate Court can interfere with findings of fact. One such principle is that in assessing and evaluating the evidence, the failed to take into account some matter which he ought to have taken into account. Submitted in support of the second ground of appeal, Ms Shapi again relied on the case of Kapembwa (cited above) and told the court that details of the driver and the truck he was driving were not at the Immigration point. The evidence of the driver was that he remained in the vehicle while some did the registration procedure for him. Ms Shapi argues that this is totally unacceptable since immigration procedure requires that one presents himself, as testified to by DW2, Charles Shula. She states that there is no evidence that in arriving at his decision, the Judge took into account the evidence of the missing details in consideration. On the third ground of appeal, Ms Shapi submits the driver of the bus made contradictory statements as to the documents he used to cross the border which statements discredit his testimony. Coupled with the missing entries in the immigration books, it would be dangerous to rely on his evidence. Submitting in support of the fourth ground of appeal, Ms Shapi stated that the Respondent had every reason to believe that the provisions of the Customs and : J 6 : Excise Act had been contravened. The action taken by the Respondent was statutory and within the law and as such, the Respondent was not entitled to any damages. The Appellant's action was based on strong suspicion and there was evidence pointing to the contravention of the Act. Since there was no malice or unreasonableness, the Respondent was not entitled to damages. Ms Shapi further submits that the Judge's decision, having been based on the ground that records at Kasumbalesa Border showed that the truck crossed into the Democratic Republic of Congo, there were no re-entry details. According to her, the transporter could not have been an innocent party. In reply to the first ground of appeal Mrs Kunda submitted that the learned Trial Judge was entitled to find as he did because of the issues involved were issues of credibility. She states that the Judge found as a fact that the details of the driver of the truck were recorded in the book at Kafue Bridge. According to Mrs Kunda, by referring to the entry in the book, the Judge took into account the evidence of the two Police Officers manning the road block and the bridge. She went on to state that the Judge found as a fact that the truck did actually arrive at Kasumbalesa Boarder Post where the driver was given a gate pass and where there was documentary evidence indicating that the truck did pass through. The Judge decided the case on the credibility of the witness. She referred us to the case of Kenmuir vs Hattingh (2) in which we stated that; "where questions of credibility are involved an appellate court which is not by the advantage of seeing or hearing, the witness will not interfere with the findings or facts made by the Trial Judge unless it is clearly shown that he fallen into error". Mrs Kunda has also referred to the case of Augustine Kapembwa vs Danny Maimbolwa and the Attorney General (1) in which we held that an appellant : J 7 : court will be slow to interfere with findings or fact made by trial court which is the opportunity and advantage of seeing or hearing the witness. On the second ground of appeal Mrs Kunda submits that the learned Trial Judge did not misdirect himself in law and in fact by accepting evidence of PW1. She urges that the Trial Judge found that the documentary evidence on record in fact tallied with the evidence of PW1 who is the Driver of the truck. He took into account the fact that there was evidence on record seeing that the truck did actually arrive at Kasumbalesa Boarder Post and that the Driver through the assistance of the exporter had been given a gate pass. On the third ground of appeal Mrs Kunda submits that the learned Trial Judge did not err by taking into account the evidence of the gate pass in addition to the other evidence which was produced before the court. She states that the gate pass is a public document which the Driver used to enter in to the Democratic of the Republic of Congo and so are the entries at Kafue Bridge and Kasumbalesa Border Post which the Trial Judge took into account with arriving at his decision. On the forth ground of appeal Mrs Kunda submits that the learned Trial Judge found misdirected in law and fact by taking into consideration the evidence of the acquittal that he arrived at his decision. She further submits that the acquittals had the Customs stamp on them and that the consignment on the truck had been cleared by ZamCargo and that it was actually loaded on to the truck for onward transmission to Congo. In reply to the forth ground of appeal Mrs Kunda submits that the Trial Judge did not err in fact bnd in law by holding with the Respondent truck was unlawfully detained and awarded damages to the respondent. She submitted further that : J 8 : on the totality of the evidence which was produced before lower Court and having held the evidence of all witnesses, the trial Judge has a fact that the Appellant abused its authority. To this effect, the appellant can not rely on the Customs and Excise Act to exceed its authority. According to Mrs Kunda, the Judge was right to have pointed out that the appellant should have dealt with the matter administratively instead of attempting to extend their internal administrative problems to some innocent people with whom they came into contact by virtue of their responsibilities. She states further that the Judge properly ordered the return of the Respondent truck and the refund of any monies paid. We have considered the evidence on record and the elaborate submissions by Counsel. As the learned trial Judge properly pointed out, this case hinged on the credibility of the people who dealt with the consignment which gave rise to this litigation. After evaluating the evidence which was before him, the Judge made findings of fact which led him to believe the Respondent's version of the case. As we stated in the case of Nkhata and Four Others vs the Attorney-General, (3), a trial Judge can only be reversed on questions of fact it (i) the Judge erred in accepting the evidence or (ii) the Judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored, or (iii) the Judge did not take proper advantage of having seen and heard the witnesses or (iv) external evidence demonstrates that the Judge erred in assessing the manner and demeanor of witnesses. This was emphasized in the case of the Attorney-General vs Marcus Kampumba Achiume (4) in which we held that an Appellate Court will not reverse findings of fact made by a trial Judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the : J 9 : facts or that they were findings which, on a proper view of the evidence, no trial Court acting correctly can reasonably make. We have examined the evidence which was before the lower Court. The evidence of the driver as to how he loaded the truck with consignment and traveled up to Kasumbalesa Border Post is supported by the entries at the Kafue bridge check point and at the border, culminating in a gate pass which was used to enter Congo. This is against the evidence of the two Police Officers manning the Kafue bridge check point to the effect that although the details of the tuck were entered in their register, they did not see the truck pass. The Judge considered the evidence pf the gate pass as well as the evidence confirmed by DW1 that records at Kasumbalesa Border kept by Customs Officers did show that this truck had entered Congo. With this evidence on record, it cannot seriously be argued that the learned trial Judge's findings of fact were perverse or were made in the absence of relevant evidence. The Appellant has not demonstrated that the Judge erred in assessing and evaluating the evidence which was before him. The five grounds of appeal are raising issue with the Judge's findings of fact on the evidence before him. We find no reason to interfere with the said findings of fact. In sum, this appeal is dismissed with costs to the Respondent. D. M. LEWANIKA DEPUTY CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE I. M. C. MAMBILIMA SUPREME COURT JUDGE