Evambo Tropical Manufactures Ltd v Zambia Bata Shoe Company Ltd (Appeal 144 of 2016) (11 June 2019) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 144/2016 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ^E COURT JUDICIARY AbHtt&RBPL EVAMBO TROPICAL APPELLANT AND 50067. ZAMBIA BATA SHOE COMPANY LIMITED RESPONDENT Coram: Musonda, A/ DC J, Kaoma and Kajimanga, JJS on 4th and 11th June, 2019 For the Appellant: Messrs J & M Advocates (Filed a Notice of NonAppearance pursuant to Rule 69(1) Cap. 25) For the Respondent: Mr. B. C. Mutale and Mr. E. Banda of Messrs BCM Legal Practitioners JUDGMENT MUSONDA, A/DCJ delivered the Judgment of the Court Cases referred to: 1. Zambia Consolidated Copper Mines Limited v James Matale (1995-97) Z.R. 144 2. Zambia Telecommunications Co. Limited v Mutale Nganga & Chulumbu Epiphanio SCZ Appeal No. 143/99 3. Masautso Zulu v Avondale Housing Project Limited (1982) Z.R. 4. Nkhata & Others v Attorney General (1966) Z.R. 124 5. NFC African Milling PLC v Lofoy Enterprises Limited SCZ Judgment No. 27 of 2006 6. Khalid Mohamed v Attorney General (1982) Z.R. 49 7. Galaunia Farms Limited v National Milling Corporation Limited (2004) Z.R. 1 J2 Other Works referred to: 1. Gamer, B, Black’s Law Dictionary, 9th edition 1.0 INTRODUCTION 1.1 The appellant has approached this court seeking to have us disturb or set aside a judgment by which the court below dismissed as lacking in merit, an action whereby the appellant had sought to recover a liquidated sum of K413,278.00 against the respondent on account of the circumstances we have adverted to in 1.2 below. 1.2 According to the appellant’s pleadings, the money in question allegedly represented the value of goods/inventory which, allegedly, had been over and above the goods/equipment which had been the subject of a Sale and Purchase Agreement (“the SPA”) which had been entered into between the appellant and the respondent but which goods were allegedly sold to a third party by the respondent following the consensual rescission of the SPA through a consensual court judgment. 1.3 The appellant also sought to secure additional relief against the respondent in the way of damages for inconvenience and loss of goods together with interest and costs. J3 2.0 BACKGROUND FACTS OR CIRCUMSTANCES TO THE COURT ACTION BELOW 2.1 The background facts or circumstances which had precipitated the appellant’s legal action in the court below could not have been any simpler. 2.2 The respondent, a public limited company, has been a wellknown or even a household name in many a household throughout the Republic of Zambia as a manufacturer and retailer of all manner of footwear and related products under its famous ‘Bata’ brand name. 2.3 According to the record relating to this appeal, sometime in or about year 2009, changing business dynamics compelled the respondent to change its business model by abandoning its manufacturing wing. This development resulted in having a number of the respondent’s staff retrenched or retired. We pause here to mention that the respondent’s retrenchment and retirement exercises of 2009 were a continuation of similar exercises which had been undertaken by the company earlier. J4 2.4 Over the course of continuing interactions between the respondent and a cadre of its former employees who had either been retired or retrenched as earlier alluded to, a business idea was conceived which culminated in having the respondent’s former employees incorporate a limited company, the appellant to this appeal, which was to serve as the vehicle to actualize the business idea in question. For completeness, that business idea entailed having the appellant continue to undertake part of the manufacturing business segment which the respondent had abandoned as disclosed early on in this judgment. 2.5. By a ‘To Whom It May Concern’ note dated 10th February, 2009 which was authored on the respondent’s note paper and which was duly signed on behalf of the appellant and the respondent, the two parties confirmed a transaction in terms of which the respondent had sold, while the appellant had bought, a variety of machinery and equipment at various prices which had been set out against each piece of machinery or equipment. 2.6 By a letter from the respondent to the appellant which was dated 21st May, 2010, the former accepted the latter’s offer to purchase its various machinery and equipment, raw J5 materials, 91 pairs of moulds, 313 pieces of knives and 2,137 pairs of lasts at the prices of K883,000,000.00 K660,000,000.00, K360,000,000.00, K60,000.00 and K67,000,000.00 respectively (total: K2,030,000,000.00). 2.7 In terms of the letter referred to in 2.6 above, two meetings were held on 13th and 19th May, 2010 between the appellant’s and the respondent’s representatives at which an agreement was reached in terms of which the appellant became entitled to use, at no cost, the respondent’s trade mark upon the condition that all the Bata branded shoes which the appellant was to manufacture were to be so manufactured for and exclusively sold to the respondent and that the appellant was to take on a major proportion of former employees of the respondent who had been dedicated to its leather factory. 2.8 On 10th June, 2011, the appellant and the respondent executed the SPA in respect of the respondent’s Leather Shoe Production Factory, machinery, equipment and raw materials at the total agreed price of K2,153,070,200.00. According to the record, the appellant paid a proportion of the purchase price while the balance was to be paid over a period of time. J6 2.9 The machinery and the other items which were the subject matter of the SPA were set out in an annexure to the Agreement in question and were generically described as: 2.9.1 Machinery and equipment (as listed); 2.9.2 Various machine accessories; 2.9.3 Raw materials; 2.9.4 91 pairs of moulds; 2.9.5 313 pieces of knives; and 2.9.6 2,137 pairs of lasts. 2.10 A prominent feature of the SPA was a clause which is universally or famously known as the ‘Romalpa’ or ‘retention of title’ clause which was embedded in clause 8 of the Agreement and was couched in the following terms:- “The title to all the equipment and raw materials shall remain vested in the vendor until the full purchase price shall have been paid to the vendor. The vendor shall take such steps as necessary to pass title to the purchaser at this stage including the issue of any applicable Value Added Tax invoices." 2.11 A related provision to clause 8 of the SPA was clause 14 thereof which was expressed in the following terms:- “Until the purchaser shall have paid the total purchase price for the equipment. J7 (a) the vendor’s representatives shall have the full and free right of access to the equipment; and (b) the purchaser shall not assign or transfer any of its interests under the (SPA) Agreement. ” 2.12 A point worth noting, even as we continue with the background narrative to the present appeal (and as is clearly self-evident from paragraphs 2.5 and 2.6 above), is the fact that, in some material respects, the SPA represented a culmination of earlier business arrangements (between the appellant and the respondent) which, under the terms of the SPA, had been ‘superseded’ following the execution of the SPA. 2.13 Another matter worthy of note, in the context of the SPA and all the associated business arrangements which had arisen between the appellant and the respondent, on the one hand, and the court dispute which had ensued between the duo, on the other, was the fact that, following the conclusion of the subject business arrangements between the appellant and the respondent, the former continued to occupy and to use a portion of the respondent’s warehouse for its manufacturing business. As things turned out, the respondent subsequently sold that warehouse and notified the appellant accordingly. The respondent also advised the J8 appellant to start making arrangements to relocate unless it could enter into a new tenancy agreement with the warehouse’s new landlord. 2.14 Following the appellant’s sustained failure to meet its rental obligations to the new landlord of the premises we have alluded to in 2.13, the new landlord caused a warrant of distress to be issued against the appellant for the purpose of recovering accrued rental arrears. 2.15 Under the terms of the warrant of distress referred to in the preceding paragraph, a certificated bailiff entered upon the premises known as Plot No. 36981, Mukwa Road, Industrial area, Lusaka for the purpose of distraining upon such goods and chattels at the said premises as were lawfully amenable to be distrained upon for the purpose of recovering the sum of K210,924,000.00 in rental arrears, together with costs, bailiffs’ fees and other associated costs. 2.16 Following the successful execution of the warrant of distress in question, the dealing certificated bailiff caused an advertisement to be published in a newspaper announcing a ‘bailiff’s public auction sale’ which was to be conducted on 15th December, 2012 and at which the various and numerous goods and chattels which had been distrained J9 upon as mentioned in 2.15 above were to be sold by public auction. 2.17 Sometime during the month of December, 2012, the respondent caused a ‘Notice of Claim to Goods Seized in Execution' to be issued in its favour pursuant to the provisions of Order 17, Rule 2(2) of the Rules of the Supreme Court, (1965 edition). 2.18 Under the terms of the Notice of Claim mentioned in 2.17 above, the respondent served notice to: (a) the landlord who had secured the warrant of distress in question; (b) the appellant; and (c) the certificated bailiff who had executed the warrant of distress, as to its claim to the goods/chattels which had been seized in execution or distrained upon pursuant to the warrant of distress earlier mentioned. 2.19 We pause again here to mention that, notwithstanding the paucity of conclusive evidence on the matter, there are sufficient indications on the record relating to this appeal which suggest that the respondent’s Notice of Claim did yield its intended outcome of forestalling the sale of the goods and chattels which had been seized in execution as earlier noted. J10 2.20 Notwithstanding the positive outcome alluded to in 2.19, the respondent was made to bear the financial burden of settling the rental arrears in question and paying off the certificated bailiff on account of his fees and the associated costs of execution. 2.21 The respondent subsequently instituted an action in the High Court under cause 2012/HP/1518 against the appellant which culminated in a consensual judgment in terms of which: 2.21.1 the SPA was rescinded on account of what was described as a total failure of consideration on the appellant’s part; 2.21.2 the appellant was ordered to deliver and surrender to the respondent all the goods/equipment in its possession which had been the subject of the SPA; and 2.21.3 neither of the parties was to have any further claim against the other in relation to the subject goods/equipment. 2.22 Following the development in 2.21 above, the respondent successfully proceeded to have the machinery/equipment which had been the subject of the still-born transaction with the appellant sold to another interested party. 2.23 Although the appellant did not initially appear to have had any serious or viable grievances vis-a-vis the consensual judgment earlier mentioned, it subsequently took the position that the goods/inventory which the respondent sold to the third party went beyond what the consensual judgment had envisaged in that what the respondent sold to the third party included the appellant’s own goods/chattels as well as those of other parties such as the appellant’s suppliers. 3.0 THE COURT ACTION: THE PARTIES* RESPECTIVE PLEADINGS 3.1 On or about 15th May, 2014, the appellant caused a writ of summons and statement of claim to be taken out in the court below against the respondent. The primary relief which the appellant sought in the afore-mentioned cause was the recovery of a sum of K413,278.00 which was expressed in the originating process in question as having represented "... the value of the goods/ inventory [which were sold by the respondent] in excess of the goods [which were the subject of a] consent judgment dated 22nd January, 2013.” J12 3.2 Although the nature of the appellant’s claim was not readily apparent from the endorsement on the writ of summons referred to in the preceding paragraph, the statement of claim which had accompanied the subject writ did disclose the fact that the sum of K413,278.00 earlier referred to in paragraph 3.1 represented the total value of goods which the respondent was alleged to have sold to the third party earlier mentioned but which had not formed part of the goods which had been the subject of sale by the respondent to the appellant. In this regard, the appellant asserted in its statement of claim that the goods/inventory which were being complained about had been owned and supplied to the appellant by other parties and were never the subject matter of the SPA. 3.3 In its reaction to the appellant’s allegations, the respondent denied having sold any goods/inventory/machinery other than what had been the subject matter of the SPA and the consent judgment earlier mentioned. 4.0 THE TRIAL AND EVIDENCE MARSHALLED 4.1 When the matter was subsequently tried in the court below, the two protagonists called one witness apiece. J13 4.2 Henry Chama (“PW1”) testified on behalf of the appellant, then plaintiff, while Howard Ngonga Mwinduka (“DW1”) gave evidence on behalf of the respondent, then defendant. 4.3 In his evidence-in-chief, PW1 confirmed that the appellant and the respondent had executed the SPA. 4.4 PW1 also confirmed that, not long after the execution of the SPA, the appellant started experiencing challenges vis-a-vis payment of the purchase price under the SPA and the loan which the appellant had procured from Access Bank Zambia Limited in connection with its business. The appellant was also unable to pay its workers’ salaries as well as meet its financial obligations to its suppliers. 4.5 Leaving aside the appellant’s difficulties as highlighted in 4.4 above, the company ran into rental arrears amounting to over K200,000,000.00. The appellant’s default in relation to its rental obligations prompted the landlord to issue the warrant of distress which we referred to early on in this judgment. 4.6 According to PW1, the execution of the warrant of distress resulted in the closure of the appellant’s factory and its entire business. This development also prompted the J14 respondent to take steps to claim the machinery and goods which had been affected following the execution of the warrant of distress. 4.7 Subsequent to the events in 4.6, the appellant and the respondent executed the consensual judgment which we referred to earlier in this judgment. This development led to the recovery, by the respondent, of the goods and machinery which had been distrained upon after it (the respondent) had settled the bailiffs’ fees and rental arrears as earlier mentioned. 4.8 According to PWl’s further evidence, following the recovery of the subject machinery and other goods by the respondent, the appellant ‘complained’ to the respondent over the fact that the goods/machinery which the latter had recovered included goods/machinery which were owned by other entities or third parties. 4.9 Upon being cross-examined, PW1 told the trial court that after the execution of the consent judgment between the appellant and the respondent as earlier indicated, ownership of the machinery and other goods which had been the subject matter of the SPA reverted to the respondent. J15 4.10 PW1 also informed the court below that the appellant’s representatives had approached the company which had bought the goods/machinery which the respondent had recovered and were informed that the new owner had bought everything which had been in the factory. 4.11 According to PWl’s further cross-examination testimony, as the appellant’s representatives did not find anything in the factory premises, they “assumed” that the respondent had sold them. The witness, however, confessed that he neither saw the respondent taking away nor selling the ‘missing’ goods in question. PW1 also confessed that the missing goods/machinery could not be found at the respondent’s premises. 4.12 Following the conclusion of PWl’s testimony and the closure of the appellant’s case, the respondent launched its defence with the presentation of DW1, the respondent’s solitary witness. 4.13 In his evidence-in-chief, DW1 confirmed the SPA between the appellant and the respondent. He also confirmed that, in spite of the SPA, the respondent had retained ownership of the goods/machinery which had been the subject matter of the SPA until the goods/machinery had been paid for in full. J16 4.14 The witness also confirmed the seizure, under execution, of the goods/machinery in question on account of non­ payment of rentals by the appellant. 4.15 DW1 further testified that the respondent was forced not only to settle the rental arrears but to meet the fees which the certificated bailiffs had demanded following the execution of the warrant of distress. 4.16 DW1 also informed the trial court that, in the light of the appellant’s inability to meet its obligations under the SPA, the respondent was forced to sell its goods/machinery to a third party. 4.17 According to DW1, “the goods [which] were sold were only those [which] were... listed as [the respondent’s].” The witness also informed the court below that both “[the appellant’s and the respondent’s] officials were present when the machines were sold off [and that] at that time, [the appellant] did. not make any claim. ” 4.18 The witness further testified that “[the respondent] had a list (of its goods) and that only those goods which were on the list were taken [by the new owner]”. DW1 flatly denied that any J17 machinery or goods other than what had been owned by the respondent were sold. 4.19 Under cross-examination, DW1 reiterated that at the time when the machinery and other goods were being sold, both the appellant’s and the respondent’s representatives were present. 4.20 The witness also reiterated in his cross-examination testimony that, at the time when the new owner purchased the goods/machinery in question, the parties were guided by a list which only contained the respondent’s goods/machinery and that nothing which did not appear on that list was sold to the new owner. 4.21 DW1 also acknowledged in his cross-examination evidence that the appellant had complained about some missing goods but insisted that the respondent did not take anything “in excess of what [had] belonged to [the respondent}. ’’ 4.22 Upon being re-examined, DW1 told the trial court that although the appellant’s representatives were present and did not complain at the time when the goods/machinery in question were being handed over to the new owner, they refused to be present at the time of the sale transaction itself. J18 5.0 PARTIES* RESPECTIVE ARGUMENTS AND SUBMISSIONS AT TRIAL 5.1 Following the closure of the case for the defence, the learned trial judge invited counsel involved to file their respective submissions. 5.2 According to the judgment appealed against, the judge below did acknowledge the fact of both parties having filed their respective submissions in that court. 6.0 CONSIDERATION OF THE MATTER BY THE TRIAL COURT AND DECISION REACHED 6.1 In his 4-page judgment, the learned trial judge considered/reviewed the evidence which had been laid before him on behalf of the two parties and made the following findings of fact, namely: 6.1.1 that at the time when the appellant executed the consensual judgment which we have been referring to in this judgment, the appellant had been in default of its obligations under the SPA; 6.1.2 that, arising from the finding in 6.1.1, the respondent was entitled to take possession of the machinery and other goods which had been the subject matter of the consent judgment; and J19 6.1.3 that, as none of the appellant’s representatives had seen the respondent or any of its representatives take away or, at any rate, sell any goods, machinery or equipment other than what had been listed in the consent judgment in issue, the appellant had failed to establish or prove the very basis of its entire claim. In the result, the learned trial judge adjudged the appellant’s claim as having been lacking in merit and accordingly dismissed the same with costs. 7.0 THE APPEAL AND THE GROUNDS THEREOF 7.1 The appellant was not satisfied with what its exertions in the court below had yielded and has now come before us buoyed by the following grounds “1. The learned Puisne Judge erred in law and fact, when he failed to recognise that the Consent Order dated 22nd January, 2013 expressly stated that the Appellant was to DELIVER the goods to the Respondent. However the Respondent imbued itself with authority to take possession, of the subject property in the absence of the Appellant or the Appellant’s representatives. 2. The Learned Puisne Judge erred in law and fact when he made a perverse finding of fact that the Appellant stated that the goods subject to this matter were taken by the bailiffs when the Respondent had taken possession of the factory and the goods thereof. J20 3. The Learned Puisne Judge erred in law and fact by asserting that the Appellant’s representatives were present when the Respondent took the goods and equipment from the factory yet this was not proved by the Respondent in the lower court and was not supported by any evidence thereof. 4. The Learned Puisne Judge erred in law and fact by disregarding the testimony of the Appellant and totally disregarding the documentary evidence produced by the Appellant in the lower court. 5. The Learned Puisne Judge erred in law and fact when he held that the Appellant did not see the Respondent physically take the excess property when he wrongly recognized that they had a right to collect property from the premises and that the Respondent was the only other party aside from the Appellant who had access to the factory. 6. The Learned Puisne Judge erred in law and fact when he disregarded the agreement dated 10th June, 2011 which outlined the property that rightfully belonged to the Appellant which was used in the factory and disregarded all other supplies bought by the Appellant, which were wrongfully taken by the Respondent.” 8.0 ARGUMENTS ON APPEAL 8.0.1 Counsel for the two sides in dispute filed their respective Heads of Argument. At the hearing of the appeal, counsel for the appellant were not before the court having filed a Notice of Non-appearance. However, Mr. B. C. Mutale and Mr. E. Banda, learned counsel for the respondent were before us and confirmed that they would rely on their filed Heads of Argument. J21 8.1 In those Arguments referred to in 8.0.1, learned counsel for the appellant argued the first two grounds separately while grounds three and four were argued together as were grounds five and six. 8.2 The gist of learned counsel for the appellant’s arguments around the first ground of appeal was that the judgment of the court below was fundamentally flawed in that it (allegedly) failed to effectuate the correct meaning and effect of the consent judgment dated 22nd June, 2013 in Cause No. 2012/HP/1518. 8.3 For convenience, we reproduce the relevant portion of that consent judgment below: “By Consent of the parties herein through their advocates IT IS HEREBY ADJUDGED and agreed as follows: (i) that the agreement of 12th June, 2011 be and is hereby rescinded on (sic.) ground of total failure of consideration on the part of the [appellant]; (ii) that the [appellant] do deliver and surrender the goods/ equipment in its possession which were the subject of the aforementioned agreement to the [respondent] forthwith; (Hi) that either party shall have no further claim against J22 the other with regard to the equipment herein... ” 8.4 According to the appellant’s counsel, the consent judgment, as quoted above, required or obliged the appellant to deliver and surrender the goods/ equipment in its possession which were the subject of [the sale and purchase] Agreement to the [respondent] (Counsel’s emphasis). 8.5 Counsel further contended, citing the incontrovertible evidence which was laid before the trial court to this effect, that the appellant did not actually deliver the goods/equipment which were the subject matter of the consent judgment to the respondent but that the respondent took possession of the goods/equipment on its own. 8.6 The appellant’s counsel also criticized, as “perverse” and unsupported by any form of evidence on record, the trial court’s ‘finding’ that the respondent was entitled to take possession of the goods/equipment in question. To reinforce the above argument, learned counsel drew our attention to our decisions in Zambia Consolidated Copper Mines Limited v James Matale1 and Zambia Telecommunications Co. Limited v Mutale Nganga & Chulumbu Epiphanio2 where we made the point that an appellate court is entitled to set aside or to discount a J23 purported finding or conclusion by a trial court which is not supported by evidence on record. Counsel accordingly urged us to adopt our reasoning in Matale1 and Nganga and Chulumbu2 and uphold the first ground of appeal. 8.7 In his reaction to the appellant’s exertions around the first ground of appeal, Mr. Mutale, the learned counsel for the respondent observed that the first ground of appeal essentially attacks findings of fact under circumstances when such an attack is clearly unwarranted. 8.8 Citing oft-quoted dicta from our decisions in Masautso Zulu v Avondale Housing Project Limited3 and Nkhata & Others v Attorney General4, counsel contended that only where an appellate court is satisfied that a trial court’s findings had been perverse or made in the absence of any relevant evidence or upon some misapprehension around some facts would an appellate court be properly entitled to interfere with or reverse the trial court’s findings of fact. 8.9 In the context of the matter at hand, the respondent’s counsel argued that the trial court’s findings of fact were neither perverse, nor made in the absence of any supporting evidence or upon some misapprehension as to the correctness of the relevant facts. J24 8.10 According to counsel, although the respondent had relinquished possession of the goods/equipment which were the subject of the SPA, it had retained its lawful ownership of the assets in question on the strength of the legal principles which govern conditional sales. Learned counsel accordingly urged us to dismiss the first ground of appeal. 8.11 With respect to the second ground of appeal, the gist of learned counsel for the appellant’s argument around this ground was that the “finding” by the trial judge to the effect that the goods/ equipment which had been the subject of the SPA were taken by bailiffs was perverse and, accordingly, is liable to be set aside or reversed. The case of Nkhata & Others4 was cited not only to support the above contention but to reinforce counsel’s invitation to have us uphold this ground. 8.12 In his reaction to counsel for the appellant’s exertions around the second ground of appeal, learned counsel for the respondent reiterated his arguments as well as authorities in relation to the first ground of appeal as we have reviewed them above. 8.13 Counsel for the respondent went on to make the point that in arriving at its findings of fact, the trial court placed J25 reliance upon the testimony of the appellant’s own witness (“PW1”) who confirmed before that court that he neither saw the respondent taking the goods/machinery which were the subject of the appellant’s grievances nor did he see the respondent selling the same. Counsel accordingly urged us to dismiss the second ground of appeal. 8.14 The third and fourth grounds of appeal (which were argued together) were essentially of the nature of attacks against the learned trial judge’s findings of fact, 8.15 The gist of the appellant’s opening arguments around the two grounds was that it was a misdirection for the court below to have dismissed the appellant’s claim that the respondent had taken or sold goods/machinery which were in excess of what the consent judgment had contemplated on the basis of that court’s finding that the appellant’s witness did not see the respondent’s representatives sell or take away the goods or machinery in question, 8.16 According to the appellant’s counsel, since the respondent was the only other party, aside from the appellant, who had keys to the premises where the subject goods/machinery J26 had been stored, the trial court should have drawn the inference and conclusion that only the two parties had access to those premises and, consequently, only a representative or an agent of either could have been responsible for the missing goods/machinery. 8-17 Counsel for the appellant also argued that the lower court did not give a proper evaluation of the evidence which was placed before that court in that the court (allegedly) gave greater weight to the testimony of the respondent’s witness at the expense of the appellant’s witness. 8.18 According to counsel, the lower court ought to have attached greater weight to the testimony of the appellant’s witness which, (the argument went), unlike the testimony of the respondent’s witness, was supported by documentary evidence. To support the above submissions, learned counsel cited our decision in NFC African Milling PLC v Lofoy Enterprises Limited5 where we said:- “In all Judgments, it is a cardinal rule that the court must reveal its mind as to why it drew certain conclusions and the facts supporting these conclusions. It is mandatory that [every] judgment must be anchored on evidence adduced before the court. ” J27 8.19 The appellant’s counsel further argued that, unlike the respondent whose witness had not produced the list which it (the respondent) claimed to have used for the purpose of identifying the goods/machinery which were sold to the new buyer, the appellant’s witness specifically identified the goods/machinery which had been outside the purview of the consent judgment and the SPA. 8.20 In sum, learned counsel for the appellant concluded his arguments around the third and fourth grounds of appeal by contending that the lower court not only failed to adjudicate upon all the matters which the two protagonists had laid before the lower court but also failed to give a proper evaluation of the evidence which the parties had deployed before that court. 8.21 In his arguments contesting grounds three and four, learned counsel for the respondent contended that the fact of the appellant’s representatives having been present at the time when the respondent took the goods/equipment from the factory could not be assailed given that the respondent’s evidence to that effect was not challenged in crossexamination. J28 8.22 Counsel went on to argue that the appellant had failed to prove its allegation and was not, therefore, entitled to have judgment entered in its favour. Learned counsel for the respondent went on to cite the cases of Mohamed v Attorney General6, Zulu v Avondale Housing Project Limited3 and Galaunia Farms Limited v National Milling Corporation Limited7 to support the proposition that he who asserts must affirm and that “a plaintiff who does not prove his case cannot be entitled to judgment" irrespective of what happens to the case for the opposing side. 8.23 As to the fifth and sixth grounds of appeal (which were also argued together), we have refrained from setting out the appellant’s brief arguments around the two grounds as they are no different both in form and substance from the earlier grounds. 8.24 The gist and substance of the respondent’s counsel’s reaction to the fifth and sixth grounds of appeal was essentially that, as the appellant had claimed or asserted that goods/machinery in excess of what had been owned by the respondent or which had been the subject matter of the consent judgment had been sold or taken by the respondent or its agents or servants, the onus rested on the appellant to J29 prove its claim or assertion to the applicable evidential standard of proof. To support the above contention, learned counsel referred us to a number of English and Zambian authorities on the points, including our much-quoted decisions in Khalid Mohamed v Attorney General6 and Zulu v Avondale Housing Project Limited3. In the former, we said:- “A plaintiff must prove his case and if he fails to do so the mere failure of the opponent’s defence does not entitle him to judgment.(at P.51) In Zulu v Avondale Housing Project Limited3 we said, at page 175: "... I think that it is accepted that where a plaintiff alleges that he has been wrongfully ... dismissed, as indeed in any other case where he makes any allegations, it is generally for him to prove those allegations..." 8.25 In relation to the matter at hand, learned counsel for the respondent argued that the onus was upon the appellant to establish or prove that the goods/machinery which had formed the basis of its grievances had been sold or taken away by the respondent acting by its agents or servants. J30 8.26 The respondent’s counsel further contended that, the lower court, which had the advantage of listening to the two witnesses who testified below made its findings of fact and resolved the issue we have alluded to in 8.25 above against the appellant. In counsel’s estimation, the appellant had failed to demonstrate in this court that we would be properly entitled to interfere with the lower court’s findings and conclusions. We were accordingly urged to dismiss the last two grounds and the entire appeal. 9.0 CONSIDERATION OF APPEAL AND DECISION 9.1 We are indebted to counsel on either side of this contest and propose to project our reflections around the grounds of appeal as argued in the same order in which they were canvassed before us. 9.2 The appellant’s first grievance, as encapsulated in its first ground of appeal, is that the lower court failed to accord due deference to the meaning and effect of the consent judgment which had bound the two parties and which had envisaged that the goods/machinery which had been the subject matter of the SPA were to be delivered to the respondent by the appellant. J31 9.3 As things turned out, the goods/machinery in question were not delivered by the appellant to the respondent but were, in fact, taken possession of by the latter at its own instance. 9.4 The gist of the appellant’s grievance around this first ground is that it was a misdirection for the trial court to have supported or lent its succor to the respondent in the way of acknowledging the latter’s entitlement to take possession of the goods and machinery in question contrary to what the consensual judgment had contemplated. 9.5 For his part, the learned counsel for the respondent saw nothing wrong with the lower court’s approach and disposition. 9.6 In the view of learned counsel for the respondent, the lower court’s disposition and the approach complained about belonged to the sacred realm of findings of fact, in respect of which trial courts enjoy special privileges and advantages to which, barring exceptional circumstances, appellate courts are expected to defer. 9.7 We have absolutely no difficulty to acknowledge and accept that the issues around which the appellant packaged its first ground of appeal are of the nature of findings of fact. J32 9.8 As correctly argued by learned counsel for the respondent, the disposition of this court, as, undoubtedly, should be that of any other superior court exercising appellate jurisdiction, is that only rarely can that sacred domain of findings of fact by the trial court be the subject of interference by an appellate court such as ourselves. 9.9 For the avoidance of any doubt, the fate of the first ground of appeal has not been helped by the fact that we find nothing in the findings of fact falling within the ambit of the first ground of appeal which can properly be described as perverse or unsupported by relevant evidence. 9.10 Perhaps we should also take a moment or so to briefly comment upon the substance of the appellant’s grievance as encapsulated in the first ground. 9.11 In essence, the gist of the appellant’s grievance or complaint as packaged in the first ground is that the respondent should have waited, ad infinitum, for the appellant to deliver to it (the respondent) the goods/machinery which, in spite of the SPA, had not been paid for and, crucially, in respect of which legal ownership and title had remained vested in the respondent. J33 9.12 Indeed, in the estimation of the appellant’s counsel, the respondent should have continued to wait for the appellant to deliver the goods/machinery in question even in the face of the appellant’s demonstrated inability to pay for them, let alone, to settle rentals for the premises where the same had been stored. We have also not forgotten the fact that, it was in consequence of the appellant’s apparent impecuniosity that the respondent’s goods/machinery became the subject of distrain on account of non-payment of rentals! 9.13 Clearly, we cannot possibly associate ourselves with the appellant’s position and reasoning as captured in its first ground of appeal. We truly find nothing amiss with what the respondent did in exercise of its legal rights in relation to the goods/machinery in question. In this regard, we call to mind the Latin maxim “he who exercises his right injures no one. ” 9.14 With regard to the second ground of appeal, we have been at a complete loss to appreciate how precisely this ground of appeal arose in the way of an attack against the trial court’s findings of fact. 9.15 We have scanned the judgment under attack and have found nothing in the judgment in question which could have formed a legitimate basis for the purported ‘finding of fact’ J34 upon which the second ground of appeal could have been founded. 9.16 In our review of the judgment in question, the only portion where we encountered something close to the meaning which the second ground conveys is at page 11, lines 1 to 7 of the record, where the following is recorded “At the trial of the action, Mr. Henry Chama, a Director in the plaintiff company, testified in support of the plaintiff’s case. Of particular relevance to the case was his evidence under cross-examination. He said that at the time the bailiffs went to the premises to execute for rent arrears on 10th November, 2012, all the goods complained of having been taken by the defendant were in store and were taken by the bailiffs.” 9.17 What seems clear to us from the portion of the trial judge’s judgment which we have quoted above is that the judge was giving an account of Chama’s testimony. Nowhere in the sentences we have highlighted above did the trial judge make, or even purport to make, any findings of fact. 9.18 Lest anyone be in any doubt, Black’s Law Dictionary defines a finding of fact as:- “... a determination by a judge ... of a fact supported by the evidence on record presented at a trial or hearing... ” J35 9.19 There is clearly nothing in the portion of the trial court’s judgment which we have reproduced above which suggests, even remotely, that the trial judge made a determination of the nature contemplated in the definition of the expression ‘finding of fact’ as suggested above. Clearly, the second ground has no legal or other sensible basis to stand on. We dismiss it. 9.20 Turning to the third and fourth grounds of appeal (which were argued together), we confirm having examined opposing counsel’s rival arguments around the two grounds. 9.21 We propose to start by examining the third ground because, although counsel argued the two grounds (three and four) together, there is really little, if at all, in common between the two grounds. As crafted, the third ground of appeal faults the trial judge for having “(allegedly) asserted that the appellant’s representatives were present when the respondent took the goods and equipment [which had been the subject matter of the SPA] from the factory [when] this was not proved by the respondent in the court below.” 9.22 It was learned counsel for the appellant’s contention that the trial judge failed to resolve the respondent’s witness (DWl)’s apparently contradictory testimony with respect to whether J36 or not the appellant’s witnesses were present at the time when the goods/equipment in question were taken away from the factory involved. 9.23 The appellant’s counsel further faulted the trial judge for having failed to pronounce himself upon the appellant’s contention that although no one saw the respondent taking away or selling the goods/equipment/machinery in question an inference ought to have been drawn on the basis of the fact that only the respondent and the appellant had the keys to the factory where the goods/equipment in question had been stored. 9.24 Although the appellant’s grievances around the third ground of appeal may well be legitimate, in our view, the decision of the trial judge on the point did not quite turn on the issues it is alleged, was not pronounced upon by the trial judge. In his judgment, the learned trial judge said the following; at P. 12 of the record:- "I ... find that the [respondent] was entitled to take possession of the equipment which was the subject of the consent judgment. As to whether the [respondent] took other machinery or goods, [PW1] conceded that he did not see the [respondent’s representatives [take away or sell] the goods in question. " J37 9.25 As we see it, the highpoint of the trial judge’s judgment was captured in the following words which occur at P. 12 of the record:- “ Therefore, in my view, the [appellant’s allegation that the [respondent] took and sold goods/inventory in excess of the goods [which] had been listed in the consent judgment was not proved... and that was the basis of the [appellant’s entire claim. ” 9.26 In our view, the cumulative effect of what we have discerned from the learned trial judge’s reflections as captured in paragraphs 9.24 and 9.25 above is that, whatever goods/equipment which the respondent’s representatives took from the factory involved was nothing other than what the respondent was entitled to take under the consensual judgment. This having been the case, the question of who was present when the goods/machinery in question were taken is of no moment indeed. Needless to say and, as counsel for the respondent correctly argued in the context of the third to sixth grounds of appeal, the onus rested upon the appellant to prove its assertions or claims to the applicable evidential standard of proof in line with what we have consistently said in countless decisions, some of which J38 have been adverted to early on in this judgment. The third ground fails. 9.27 Under the fourth ground, the appellant faults the court below for (allegedly) having disregarded both the appellant’s testimony as well as the documentary evidence which the appellant produced in that court. 9.28 When we examined the record and, specifically, the proceedings in the court below, the only evidence which was germane to the appellant’s grievances as they were fashioned in the court below and subsequently escalated to this court were articulated by PW1, the appellant’s sole witness, in the following terms (P. 116 of the record) “We wanted to do a physical stock take and to value them ]i.e., the goods/equipment] then surrender them to [the respondent] so that the balance would be ours, but [the respondent] took everything [which] was in the factory, we complained over that action to [the respondent] because there were goods which belonged to other people which they had taken. These appear at pages 39 to 60 (plaintiff's Bundle). We got no satisfactory answer from [the respondent]. That is when we decided to take the matter to court. ” 9.29 Under cross-examination, PW1 told the trial court the following (P. 117 of the record):- J39 “Yes, we approached the people who bought the equipment. The new owner said he had bought everything in the factory, we found nothing in the warehouse and assumed [the respondent] had sold them. No, I didn't see [the respondent] taking them away. No, I didn't see [the respondent] selling them. No, I didn't find them at [the respondent]'s factory.” 9.30 On the other hand, the evidence which was led on behalf of the respondent (via DW1) was to the effect that only goods/equipment/machinery which had been owned by the respondent were sold to and taken by the third party buyer. 9.31 The appellant’s disposition, as borne out in its Heads of Argument, suggested that whether or not the appellant’s representatives were present at the time when the goods/machinery in question were sold or taken away from the factory was immaterial. 9.32 In his judgment, the trial judge opined that the appellant had failed to prove its allegation that the respondent had taken and sold goods/machinery in excess of what had been listed in the consent judgment. J40 9.33 In our view, the learned trial judge made the determination alluded to in the preceding paragraph which was anchored upon a finding of fact which we have not been appropriately invited to interfere with on the basis of the principles which our predecessor court enunciated in Nkhata & Others v Attorney-General4. We dismiss this ground. 9.34 As to grounds five and six which were also argued together, we confirm having considered the two grounds and the arguments which counsel involved canvassed around them. 9.35 Ground five essentially faults the trial court for having accepted, as proven, the fact that none of the appellant’s representatives saw any of the respondent’s representatives take away any excess property from the premises where the goods/machinery which had been the subject of the SPA had been stored. 9.36 The appellant further complained under this same ground (five) that the trial court erred when it opined that the respondent had a right to take possession of the goods/machinery which had been the subject matter of the SPA. J41 9-37 We must observe here that, in taking the position we have highlighted at 9.35 above, the learned trial judge was spurred by the evidence which had been laid before him. We pause here for a moment or so and remind ourselves about what the learned judge said in his judgment (P. 12 of the record) "As to whether the [respondent] took other machinery or goods, Mr. Chama [PW1] had conceded that he had not seen the [respondent's] representatives do so. Neither had he seen the [respondent’s] servants sell the goods in issue or see those goods at the [respondent’s] premises. Therefore, in my view, the [appellant’s] allegation that the [respondent] took and sold goods/inventory in excess of the goods [which had been] listed in the consent judgment of 22nd January, 2013, was not proved... ” 9.38 It is self-evident from 9.37 above that, in expressing his opinions and reaching the conclusion which he had reached, the learned judge was doing so on the basis of the evidence which had been laid before him. In this regard, it is worth calling to mind that, in his cross-examination testimony, PW1 told the trial court the following (at P.l 17 of the record) :- “Yes, we approached the people who bought the equipment. The new owner said he had bought everything in the factory. We found nothing in the J42 warehouse and assumed [the respondent] had sold them... I did not see [the respondent] taking [the goods/equipment] away... I did not see [the respondent] selling them... I did not find them at [the respondent’s] factory. ” 9.39 With regard to the trial judge’s declaration to the effect that the respondent was entitled to take possession of the goods/equipment in question, we really cannot agree more with the trial judge and would reiterate our earlier observations in the context of the second ground of appeal. In sum, the fifth ground fails. 9.40 Under the sixth ground of appeal, the appellant faults the trial judge for having (allegedly) disregarded the Sale and Purchase Agreement dated 10th June, 2011 which had outlined the property which had belonged to the appellant in its factory but that the judge below (allegedly) disregarded all other supplies which were bought by the appellant and which, allegedly, were wrongfully taken by the respondent. 9.41 We must say, without the slightest hesitation, that the faulting of the learned trial judge in the manner captured in the appellant’s sixth ground of appeal is utterly unfair and completely unjustified. J43 9.42 To start with, not only did the trial judge acknowledge the existence of the Sale and Purchase Agreement which has been repeatedly referred to in this judgment, but that court was fully alive to the fact that the whole basis of the consent judgment which the court also repeatedly referred to in its judgment was the Sale and Purchase Agreement in question. This fact was self-evident from the consent judgment itself whose terms we fully set out early on in this judgment. 9.43 In regard to the appellant’s allegation that the lower court had disregarded other goods/supplies which the appellant had purchased and which (allegedly) were wrongfully taken by the respondent, our reaction is that the onus was upon the appellant to prove this allegation. This reaction accords and sits well with learned counsel for the respondent’s arguments around the sixth ground of appeal and the authorities cited to buttress the same. For the removal of any doubt, the respondent’s counsel’s contention and submission was that the appellant had failed to prove the allegation involved. In the premises, the sixth ground joins the five earlier ones in sharing the latter’s fate. J44 10.0 CONCLUSION As each one of the six grounds which had inspired this appeal has failed, the entire appeal stands dismissed. The respondent will have its costs and the same are to be taxed in default of agreement. M. MUSONDA ACTING DEPUTY CHIEF JUSTICE R.M.C. KAOMA SUPREME COURT JUDGE C. KAJIMANGA SUPREME COURT JUDGE