Simba Milling Limited v Kamanga Mukadi (APPEAL NO. 119/2023) (20 June 2025) – ZambiaLII

IN THE COURT OF APPEAL APPEAL NO. 119 /2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SIMBA MILLING LIMITED 2 0 JUN 2025 APPELLANT AND 'IVIJ Rti<li~TRY KAMANGA MUKADI RESPONDENT CORAM: KONDOLO SC, MAJULA AND MUZENGA JJA On 19th May and 20th June, 2025 For the Appellant: Mr. C. Chungu of Messrs Nsapato & Company in brieff or Mrs. Lilian S. Shea Tembo of Messrs M. L. Mukande For the Respondents: Mr. K. Kaunda of Messrs Kaunda Kaunda & Mwila Legal Practitioners JUDGMENT KONDOLO SC, delivered the Judgment of the Court; CASES REFERRED TO 1. Zambia Railways v Pauline S Mundia & Another 92008) ZR 287 Vol 1 • J2 of 23 2. Galaunia Farms Ltd v National Milling Company & National Milling Corporation Ltd (2004) ZR 1 3. Suhail International Ltd v J.M. Mwamulima Properties Import and Export Limited & Lfarge Cement Zambia PLC SCZ/ 108/2015. 4. Finance Bank Zambia Limited and Rajan Mahtani v Simataa Simataa SCZ/ Appeal/ 11/2017 5. Wilson Masauso Zulu v Avondale Housing Project Ltd (1982) ZR 6. Elias Tembo v Florence Chiwala Salati & Attorney General & Lusaka City Council SCZ/ Appeal/200/2016 7. National Drug Company Ltd and Zambia Privatisation Agency v Mary Katongo SCZ/79/2001 8. Printing and Numerical Company v Simpson (1975) LR19 STATUTES & PUBLICATIONS REFERRED TO 1. Phipson and Elliots Manual of the Law of Evidence, 11th Edition at page 73 2. Catherine Elliot and Frances Quinn's book Contract Law, 7th Edition, Pearson Longman, 2009 at page 9. 3. Sale of Goods Act 1893 J3 of 23 9. INTRODUCTION 1.1. This is an appeal against the Judgment of the Honourable Mrs. Justice M. M. Bah-Matandala delivered on 2°d February, 2023 under Cause No. 2016/HP/ 1846. 1.2. In the High Court Proceedings, the Appellant was the Defendant and the Respondent was the Plaintiff. 1.3. In this Judgment we shall refer to the parties as the Appellant and the Respondent. 10. BACKGROUND 2.1. This matter involves a claim by the Respondent that the Appellant had failed to deliver to him flour-meal which the Respondent had fully paid for. The Respondent consequently commenced legal proceedings and the amended writ of summons dated 12th February, 2021 claimed the following reliefs; 1. Delivery to Kasumbalesa Border Post of 1,200 by 25 Kilograms bags of Flour Meal which the Plaintiff [Respondent] paid for in full in the sum of US$18,000 on 25th August, 2016 which the Appellant [Defendant] has not delivered; J4 of 23 2. In the alternative refund of the said sum of US$18,000; 3. Damages for loss of business occasioned by the non-delivery of the said 1,200 bags of Flour Meal; 4. Interest on the monies and damages at the current bank lending rate until full payment. 3. HIGH COURT PROCEEDINGS 3.1. Respondent's (Plaintiff) Case 3.2. The Respondent's amended statement of claim stated that he purchased 3,600 x 25 kg bags of flour meal (flour) from the Appellant and paid the purchase price of US$54,000 in full by cash deposits into the Appellants bank account no. 1025412 held at Barclays Bank Mutaba Branch, Lusaka. 3.3. That there was a shortfall of 1,200 bags on the quantity delivered by the Appellant totalling a sum of US$18,000 and which remained undelivered and all efforts to have the bags delivered or to obtain a refund of US 18,000 from the Appellant have failed hence the claims made against the Appellant. JS of 23 3. 4. The record does not show any Court testimony by the Respondent. 3.5. Appellant's (Defendant) Case 3.6. The Appellant settled a defence admitting that the Respondent paid for and collected 3,600 x 25 Kg bags of flour from the Appellant. 3. 7. That the Appellant's customers were obliged to provide their own transport for collection of products. It was averred that the 1,200 bags of flour which the Respondent claimed had been supplied to him, was actually collected by a transporter personally organised by the Respondent. 3.8. DWl Ben Banda, the Dispatch Supervisor confirmed that the Appellant purchased three truckloads of flour with each truck to carry 1,200 bags. He stated that he dispatched the commodities according to the documents presented by the Respondent. 3.9. In Cross Examination, DWl stated the Respondent gave verbal instructions with regard to which drivers would collect the flour. He further stated that he did not have the contact details of one Mr. Mwanza and he didn't know the location of Casanova Investment Transport. J6 of 23 3.10. When pressed, DWl conceded that he made no mention of the third consignment in his examination in chief, 3.11. In re-examination, DWl reiterated that he did not keep details of the transporters. 3.12. DW2 was Mr. Kalombota Kalombota a former Sales and Marketing Manager at the Appellant company. He explained that the Respondent visited the Appellant Company on 28th June, 2016 whilst DW2 was still employed there. That he explained the Appellants procedure for purchasing flour to the Respondent who indicated that he would like to pay in US Dollar currency. 3.13. The Respondent was advised to deposit the Kwacha equivalent of invoices into the Appellant's US$ account held at ABSA Bank. That the Respondent thereafter paid for the equivalent of 3 truck-loads and after he submitted the deposit slip, the Appellant issued him with a receipt, a tax invoice and delivery note. 3.14. Three days later the Respondent sent three trucks to collect the flour and after producing the documentation they were allowed to load the exact amount of flour appearing on the 1nvo1ce. J7 of 23 3.15. He explained that the loading process started with the arriving trucks going onto the weighbridge to record the empty weight, followed by the truck being loaded according to the invoice and then going back to the weigh bridge to confirm the weight of the load. The driver would then sign a weighbridge slip showing the load and then proceed to the exit gate where the load would be recorded in a book. He stated that this could all be confirmed by the documents issued to the Respondent by the Appellant in June, 2016. 3.16. That on 27th August, 2016 the Respondent made another purchase which included 1,200 by 25kg bags white bread flour. He made a payment at the bank, brought the deposit slip and was issued with a delivery note and receipt. He informed the Appellant that he would collect the flour the fallowing day and left. 3.17. However, the Respondent came back after 45 minutes and gave instructions that he would send a truck the fallowing day and it would be carrying a 5000 litre water tank. He instructed that the flour be loaded onto the truck and covered with a tent and then the tank be loaded on top of the tent but not be covered by the tent. JS of 23 3.18. The next day a truck belonging to Casanova Investments turned up and the driver named Michael produced invoice no. 09527 saying it was given to him by the Respondent and the truck was consequently loaded with 1,200 by 25kg bags of white bread flour and proceeded to the weigh bridge. DW2 produced the invoice, delivery note, weighbridge slip exhibited at pages 4, 5, and 6 of the Appellant's bundle of documents and a CD marked "7" showing the truck exiting the premises with the tank tied up on top of it. 3.19. Cross-examination 3.20. DW2 insisted that he was at the dispatch when the truck was being loaded. He confirmed that the CCTV camera records people entering and leaving the premises but agreed that he had not played the CCTV footage for the Court to observe. 3.21. DW2 further stated that only the customer's name was recorded. That the Respondent's phone number was not collected and they did not call the Respondent to verify the driver's details. 3.22. When pressed further, DW2 conceded that the delivery note was signed by the driver and not the Respondent. DW2 J9 of 23 stated that the Respondent gave verbal instructions and there was no document to verify the said instructions. 3.23. DW2 further conceded that the registration number of the truck that collected the flour was not recorded and added that he could not remember if there was anything to show that the truck was from Casanova. 3.24. The Appellant closed his case. 3.25. HIGH COURT DECISION 3.26. The lower Court held that there was a valid contract of sale between the two parties and further observed that an invoice drawn by the Appellant acknowledged receipt of $54,000 dated 25th August, 2016. 3.27. That the evidence on record showed that the Respondent arranged with a company called Busyways to transport the flour for him and he only received 2,400 bags. 3.28. That the onus to prove that the 1,200 bags were delivered to the Respondent was on the Appellant who had failed to do so. 3.29. On the basis of the foregoing, the lower Court allowed the Respondent's claim in its entirety. JlO of 23 4. APPEAL 4.1. Discontented with the Judgment, the Appellant filed an appeal fronting the following grounds 1. The trial Court erred in law and fact when she held that the Defendants had no evidence on record to prove that they had dispatched the third consignment to the Plaintiff. 2. The trial Court erred in law and fact when she shifted the burden of proof to the defendants. 3. The trial Court erred in law and fact when she based her Judgment on mere assertions by the Plaintiffs witness which was not supported by any evidence on record. 4. The trial Court erred in law and fact when she held that the Defendants did not dispatch the third consignment to the Plaintiffs purported transporter when there is no evidence on record of such a transporter. 5. The trial Court erred in law and fact when she held that the Defendants breached a contract with the Plaintiff when the record shows that the Jll of23 Defendant never entered into a transport contract with the Plaintiff. 6. The trial Court erred in law and fact when she did not rule on the inadmissibility as evidence of the power of attorney that was not served on the defendants. 4.2. Appellant's Arguments 4.3. Grounds 1 to 4 4.4. These grounds were argued as one and it was submitted that the burden of proof lay with the Respondent who needed to prove that the Appellant did not dispatch the flour to the Respondent. In support of the principles that he who alleges must prove and that the mere failure of the Defendant's case does not entitle the Plaintiff to Judgment, the Appellant cited the cases of Zambia Railways v Pauline S Mundia & Another(11 Galaunia Farms Ltd v National Milling ; Company & National Milling Corporation Ltd (21 and Suhail International Ltd v J.M. Mwamulima Properties Import and Export Limited & Lafarge Cement Zambia (3I. The learned authors of Phipson and Elliots Manual of the Law J12 of 23 of Evidence, 11th Edition at page 73 were also cited on these points. 4.5. The Appellant contended that apart from unsupported assertions, the Respondent should have provided evidence to prove that he had engaged Busyways to transport the third consignment on his behalf. It was pointed out that the Respondent did not adduce any evidence to prove that he did not receive the third consignment. 4.6. That, on the other hand, it was never the Appellants duty to verify the identity of drivers and the Appellant proved that all three loads of the flour were dispatched upon production of the delivery notes and tax invoices exhibited at pages 57, 59 and 63 of the record of appeal. 4.7. Ground 5 4.8. It was submitted in ground 5 that the contract entered into between the parties was for the sale of flour which the Respondent was to pick up from the Appellant after paying for it. 4. 9. That the Appellant had no obligation to transport the flour to any destination meaning that there could be no breach of contract by the Appellant on the question of transporting the J13 of 23 flour. The case of Finance Bank Zambia Limited and Rajan Mahtani v Simataa Simataa 4 was cited where it was held l l that a breach of contract by one party necessarily entails an infringement of a contractual right of the other party. 4.10.Ground 6 4. 11. Ground 6 is in relation to a power of attorney testified to by PW 1 whose evidence was omitted by the Appellant when preparing the record. 4.12. The Respondent filed a motion to dismiss the appeal for irregularity on the basis that the record of appeal did not comply with the rules because the Appellant had omitted to include some of the proceedings from the Court below. 4.13. We considered the application but dismissed it for want of jurisdiction on account of the fact that the application was made out of time without the Respondent having obtained leave to do so. 5. RESPONDENTS ARGUMENTS 5.1. The Respondent applied to file its heads of argument out of time but the application was refused by a single Judge. J14 of 23 5.2. The Respondent filed a motion to reverse, vary or dismiss the Order of the single Judge but the application was dismissed. 5. THE HEARING 5.1. The hearing commenced with considering a motion filed by the Respondent to dismiss the appeal for irregularity on the basis that the record of appeal did not comply with the rules because the Appellant had omitted to include some of the proceedings from the Court below. 5.2. We considered the application but dismissed it for want of jurisdiction on account of the fact that the application was made out of time without the Respondent having obtained leave to do so. 5.3. Appellant's Arguments 5.4. Mr. Chungu on behalf of the Appellant stated that he was relying on the Record of Appeal and Heads of Argument filed on 21st April, 2023. 5.5. He submitted that the burden of proof rests on he who alleges and that the lower Court therefore erred when it shifted the burden to the Appellant. It was submitted that was especially in view of the fact that as per pages 11 and 169 of the Record JlS of 23 of Appeal, the evidence showed that the Respondent had engaged Busyways Company to transport the goods. 5.6. That Cassanova Trucking was not pleaded. 5. 7. Respondent's Arguments 5.8. The Respondent had no right of reply on account of his application to file heads of argument of time having been dismissed, 6. ANALYSIS AND DECISION 6. 1. We have considered the record of appeal as well as the arguments advanced by the parties and shall begin by addressing grounds 1 to 4 together, fallowed by ground 5 and lastly ground 6. 6.2. Grounds 1 to 4 6. 3. Grounds 1 to 4 attack the trial Court's finding that the burden of proof lay squarely on the Appellant to prove that it had dispatched the flour to the Respondent. 6.4. We note that the learned trial Judge proceeded as though all the Respondent had to prove was that he had paid for the flour and the Appellant had to prove that it had dispatched the flour meal to the Respondent. J16 of 23 6.5. The claim by the Respondent that the Appellant did not dispatch the flour to him is a negative assertion which is difficult to prove but nevertheless, the burden to prove negative assertions generally remains with the plaintiff because of the maxim onus probandi actori incumbit (the burden of proof lies on the Plaintiff) or as was held in the case of Wilson Masauso Zulu v Avondale Housing Project Ltd (51t hat even where no defence has been offered the plaintiff still has to prove his case 6.6. However, the burden of proof may shift to a defendant who makes positive assertions of his own whilst rebutting the plaintiffs evidence or advancing his own defence because where a party raises a defence, that party bears the burden to prove the elements of the defence. 6. 7. This reasoning was exemplified in the case of Elias Tembo v Florence Chiwala Salati & Attorney General & Lusaka City Council '61 where in a Judgment delivered by Musonda DCJ, the Supreme Court at pages J39-J40 stated that while we accept that it is an elementary rule of evidence that he that asserts or alleges must af.finn and, equally, that the burden of proof does not shift and consistently remains with the party J17of23 that ought to establish a particular fact, the evidential burden can and does shift during the course of a trial. 6.8. In the context of the case at hand, in its defence the Appellant made a positive assertion that it despatched the flour to the driver who came with the necessary documents. The said documents were referred to and produced in Court by DW2 as proof that the 1,200 bags of flour were despatched to the Respondent. The Respondent therefore provided evidence to support its assertion that the flour was despatched after the necessary documentation was produced. 6.9. The Respondent on the other hand simply stated that he had paid for the flour but made no effort to substantiate any of his claims to support his assertion that neither he nor anybody he sent had received the said flour. 6.10. In our view, regardless of the Appellant's arguments, the fact remains that the flour was despatched to someone who presented the documents required to facilitate the despatch and which were supposed to be in the custody of the Respondent. 6. 11. The fact that the 1,200 bags of the flour was collected is not in dispute. What is disputed, is the Respondent's assertion Jl8 of 23 that the flour was neither collected by himself nor a person sent by him. The Respondent however provided no explanation as to how the documents fell into the hands of whoever it was that collected the flour meal. The terms of the agreement between the parties was that the flour would be released upon production of the required documents. 6.12. The Appellant told the lower Court that the Respondent left verbal instructions that he would send a transporter to collect the flour. The Respondent stated that the flour was not collected by his appointed transporter but, other than his unsubstantiated assertion, he did not produce any evidence with regard to having engaged the said transporter or any transporter at all to pick up the third load. 6.13. The law is quite clear that a Plaintiff cannot simply sit back and wait for the Defendant's case to fail and if he does, he does so at his own peril. In addition to the cases cited by the Appellant, in the case of Wilson Masauso Zulu v Avondale Housing Project Ltd supra it was held that even where no defence has been offered the plaintiff still has to prove his case. 6.14. In the premises, we allow grounds 1 to 4. • J19 of 23 7. Ground 5 7 .1. The learned trial Judge identified the following questions for determination; 1. Whether there was a valid contract between the parties; 2. Whether the Defendant breached the contract; and 3. Whether the Plaintiff is entitled to the reliefs sought 7 .2. On the first question the learned trial Judge held that it was not disputed by both parties that there was a valid contract for the sale of flour, freely and voluntarily entered into by the parties. The Court cited the case of National Drug Company Ltd and Zambia Privatisation Agency v Mary Katongo 171 and Printing and Numerical Company v Simpson 181 on the binding nature of contracts entered into voluntarily. 7.3. The lower Court found that there was a contract between the parties. That the Respondent had paid for the flour in full but the Appellant had not proved that it had dispatched the said flour to the Respondent. 7. 4. \1/ e note that instead of specifically determining the Respondent's claims which were clearly set out in the writ of summons and statement of claim, the learned trial Judge decided to confine herself to determining whether a contract • J20 of 23 existed between the parties, whether that contract was breached and whether the Respondent was entitled to the reliefs sought. Even after so-doing, the lower Court, however, made no finding as to what kind of contract or agreement existed between the parties and the terms of such agreement. 7.5. The record shows that the Appellant was, inter alia, engaged in the business of selling flour and the Respondent visited the Appellant's premises for the purpose of purchasing some flour. The Appellant enquired about the price and procedure for purchasing, and after being advised, he proceeded to pay the total sum of US$54,000. 7.6. Even though there was no written agreement between the parties there was offer, acceptance, consideration, intention to create legal relations and capacity to contract which are the primary elements of an enforceable contract. See Catherine Elliot and Frances Quinn's book Contract Law, 7th Edition. 7. 7. The question that arises at this point is what were the terms of the contract? Section 3 of the Sale of Goods Act 1893 prescribes that a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing • J21 of 23 .. _ and partly by word of mouth, or may be implied from the conduct of the parties. 7 .8. The record shows that after the Respondent enquired on the procedure for purchasing flour, the following steps were explained to him; 1. The cash officer works out the value of the commodity the customer wishes to purchase and informs the customer accordingly. 2. After the customer pays a receipt is issued. 3. A tax invoice worth the value of the stock being purchased is issued and given to the customer. 4. A delivery note with details of the stock purchased by the customer is issued. 5. The customer must be in possession of the documents when collecting the stock. 7. 9. From the evidence on record the parties entered into a contract for the purchase of flour and the terms of the agreement were that after paying for the flour, the Respondent would pick it up from the Appellant upon producing all the relevant documents. There was no requirement for the Appellant to deliver the flour meal to the Respondent. 7. 10. After analysing the evidence, the learned trial Judge concluded her Judgment by stating that, "The claim succeeds in its entirety. The costs for the Plaintiff " • J22 of 23 7 .11. The first and pnmary claim in the Respondent's writ of summons is for an Order that the Appellant delivers 1,200 x 25 Kg bags of flour to the Respondent at Kasumbalesa border post. The learned trial Judge did not explain the rational for allowing this claim. We agree with the Appellant that the contract of sale between the parties did not require the Appellant to transport the flour to any destination. Ground 5 has merit and succeeds. 7. 12. Though rendered otiose by our finding that there was no breach of contract, it must be pointed out that by granting the Respondent all the claims sought, the learned trial Judge essentially granted the Respondent's claim for loss of business but, offered no reasoning on the award and further, did not order that the claimed loss she had accepted be assessed by the Deputy Registrar. 7.13. Ground 6 7. 14. Ground 6 is in relation to a power of attorney. The proceedings in relation to the witness who testified on this were not on the record. 7.15. Instead of filing a supplementary record as provided by the rules, the Respondent instead applied to have the appeal "I J23 of 23 " dismissed but as explained earlier 1n this Ruling, the application was refused. 7.16. In the end, ground 6 was rendered otiose. 8. CONCLUSION In the face of the outcome of the two applications by the Respondent being dismissed and our consideration of the grounds of appeal, this appeal is allowed in its entirety with costs to the Appellant. ~.... ................... . ~ M.M. KONDOLO, SC COURT OF APPEAL JUDGE B.M. AJULA K. ZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE