Kelvin Mutale Sampa v Salehe Mbaruku Sengulo and Anor (APPEAL NO 32/2023) (31 October 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIAAPPEAL NO 32/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) 1t.\'1.1 e,uc. OF ZAM8 ~RlOFj1~P - KELVIN MUTALE SAMPA • ~ PPELLANT ""'~~~ AND \ , .':::-.... C~Y--?./ SALEHE MBARUKU SENGULO ~~~ RESPONDENT 50067, LI.IS"' .T MBARUKU TRADING LIMITED 2N° RESPONDENT CORAM: SIAVWAPA JP, BANDA-BOBO AND PATEL SC JJA On 17th September and 31st October 2024 FOR THE APPELLANT: MR. W. MUHANGA OF MESSRS WILLIS, CLEMENT & PARTNERS LEGAL PRACTITIONERS FOR THE RESPONDENTS: MR. T. DAKA OF GEORGE KUNDA &CO J U D G M E N T SIAVWAPA JP delivered the J udgment of the Court Cases referred to: 1. Masauso Zulu v Avondale Housing Project (1982) ZR 172 2. Margaret Mulemena v Benny Chiholyonga & two others Appeal No 14 of2019 3. Nkhata & others v Attorney General (1966) ZR 14 7 4. Simon Miyoba v the People (1977) ZR 218 5. Morgan v UPS [2008] EWCA Civ 14 76 6. Attorney General v Musakanya ( 1 981) ZR 1 7. J.K Rambai Patel v Makesh Kumar Patel (1985) ZR 220 8. General Nursing Council of Zambia v Ing'utu Milambo Mbangweta (2008)2 ZR 105 9. Straker u Tudor Rose (a firm) [2007} EWCA Ciu 368 10. Zambezi Ranching and Cropping & two others u Associated Tobacco Company Appeal No 21 0 of 2020 1.0 INTRODUCTION 1.1 The Appellant herein appeals against the Judgment of the High Court, Commercial Division, delivered by the Honourable Mrs Justice, K.E Mwenda-Zimba. The learned Judge delivered the Judgment on 24th November, 2022 1.2 The learned Judge entered Judgment 1n favour of the Respondents in the sum of Kl, 220, 843.00. This is after she found that the Appellant had collected the sum of Kl, 400,000.00 from the Respondent on the pretext that he was going to pay tax to Zambia Revenue Authority (ZRA) for the release of the Respondents' truck and goods. 2.0 BACKGROUND 2.1 In March 2021, the Zambia Revenue Authority impounded a truck belonging to the 2nd Respondent which, was used to illegally import alcohol into the country. 2.2 In his efforts to have the truck and the goods released, the 1st Respondent approached one Mr, Ackim Lungu who was a member of the ruling Patriotic Front Party and chairman of the COM ESA Market where the 1st Respondent had an outlet for the alcohol. 2.3 After the 1st Respondent explained his predicament to Mr. Lungu, Mr. Lungu indicated to him that he knew the Appellant J2 as one who had influence to resolve the problem with ZRA. st Subsequently the 1 Respondent met the Appellant in the company of Mr. Ackim Lungu. The Appellant assured the 1st Respondent that he would help resolve the issue with ZRA. 2.4 Later ZRA demanded the sum of Kl, 220, 843.00 from the Respondents as final and full payment to have the truck and st the goods on it released. The Appellant then advised the 1 Respondent to give him Kl, 400, 000.00 so that he could facilitate for the payment of the sum due to ZRA while the balance would be his service and consultation fee. st 2.5 The 1 Respondent gave the Appellant the said amount of Kl, st 400, 000.00 but after sometime, the 1 Respondent became aware that the Appellant had not paid the money to ZRA. As a st result, the 1 Respondent looked for another Kl, 220, 843.00 and paid ZRA. st 2.6 Thereafter, the 1 Respondent tried several times to have the Appellant refund the Kl, 400, 000.00 but to no avail. This prompted the 1st Respondent to report the matter to the Police where the Appellant was summoned. After discussions, the Appellant made a written admission in which he agreed to pay back the Kl, 400, 000.00 with the initial USD 10, 000.00 payable on 2nd December 2021. 2.7 The Appellant, true to his word, took the sum of USDl0, st 000. 00 to the Lusaka Central Police Station. However, the 1 J3 Respondent refused to collect the money because the Appellant had called him and told him that the USDl0, 000.00 was the only mount he was going to pay the Respondents. The said amount was subsequently paid back to the Appellant. 3.0 THE ACTION IN THE COURT BELOW 3.1 In the writ of summons and statement of claim filed on 9th March 2022, the Respondents claimed as follows; Payment of the sum of ZMW 1, 400, 000.00 being the 1. money collected by the Defendant for the purposes of making payment to the Zambia Revenue Authority (ZRA) on behalf of the Plaintiffs which the money the Defendant paid himself as a commission. In the alternative, payment of the sum of ZMW 1, 220, 843. 00 being the money that the Defendant was initially supposed to pay to ZRA on behalf of the Plaintiffs which money the Defendant kept to himself as a commission. Damages for the fraudulent representations made by the 11. Defendant which representations induced the Plaintiffs to avail the sum of ZMW 1, 400, 000.00 to the defendant which the Defendant kept as his commission contrary to the agreement of the parties. Damages for the inconvenience, mental anguish and 111. stress caused by the Defendant as the Plaintiffs had to source the amount of ZMW 1, 220, 843.00 payable to J4 ZRA again when the said money was misappropriated by the Defendant. 1v. Interest on the amounts in (i), (ii) and (iii) above. v. Any other or further relief(s) the Court may deem appropriate and relevant. v1. Costs 4.0 DECISION OF THE COURT BELOW 4. 1 After considering all the evidence before her, the learned Judge found that it was not in dispute that the Respondents gave the Appellant the sum of ZMW 1, 400, 000.00 out of which the sum of ZMW 1, 220, 843.00 was to be paid to ZRA and the balance to be retained by the Appellant as commission. The learned Judge further found that in view of the agreement by the parties, the actual loss incurred by the Respondents was ZMW 1, 220, 843. 00 and ordered the payment of the same with interest. 4.2 The learned Judge however, dismissed the claim for fraudulent misrepresentations as well as the claim for damages for inconvenience, mental anguish and stress for lack of evidence. 5.0 THE APPEAL 5.1 Dissatisfied with the Judgment, the Appellant filed Notice and Memorandum of Appeal onlst December, 2022. The JS Memorandum of Appeal contains the following grounds of Appeal; 1. The learned Judge erred in law when she failed to resolve all the issues in controversy, in particular, when she discounted the evidence of the Appellant's witnesses 2. That the learned Judge erred in law and fact when she entered judgment in the sum of ZMW 1, 220, 843. 00 against the defendant 1n favour of the Plaintiff unsupported by evidence; and 3. The learned Judge erred in law in awarding costs to the Respondents in the wake of the fact that the Respondent only succeeded in one claim out of three, which did not merit costs 6.0 ARGUMENTS IN SUPPORT 6.1 The Appellant did not argue ground one. He just referred to section 13 of the High Court Act and the case of Masauso Zulu v Avondale Housing Project.1 In a nutshell, the two authorities speak to the need for Courts to resolve and determine all matters in controversy with finality. 6.2 The Appellant's grievance is that the learned Judge did not consider his evidence that he rendered a service to the Respondents for which he was entitled to payment. He claims that the learned Judge did not take into account the testimony of his witnesses and his submissions in that regard. J6 6.3 In ground two, the Appellant argues that the award of ZMW 1, 220, 843.00 was in contradiction to the evidence of Ackim Lungu who said that the Appellant had rejected the offer of ZMW 700, 000.00 as payment for the service. In support of this he quoted Ackim Lungu's statement to the police. He further reproduced extracts from the cases of Margaret Mu lemena v Benny Chiholyonga and others2 and Nkhata and others v Attorney General. 3 The two cases do not support the ground of appeal in any way. 6.4 In ground three, the thrust of the Appellant's argument is that having only succeeded in one out of the three claims the Respondents had raised in the Court below, it cannot be said that they succeeded to deserve an award of costs. 7.0 ARGUMENTS IN OPPOSITION 7.1 In opposing ground one; the Respondents have argued that the learned Judge determined all the issues before her and that the findings were premised on evidence. They have further argued that the learned Judge was in order to discount the statement given to the police on the basis of the case of Simon Miyoba v the people4 • 7.2 In ground two, the Respondents argue that the Court below properly assessed the evidence and awarded the amount of money that was found due to ZRA and paid by the Respondents. J7 7 .3 In ground three, the respondents anchored their argument on the principle that costs are in the discretion of the Court and follow the event. They also relied on the cases of Morgan v UPS5 and Attorney General v Musakanya6 where it was stated that Appellate Courts should be slow to interfere with the trial Court's exercise of its discretionary power. Further that a trial Court is entitled to award costs even where a party is successful in only one ground out of several pleaded. 8.0 OUR ANALYSIS AND DECISION 8.1 From all the arguments in this appeal, one issue that is settled is that the Appellant received a total of ZMW 1, 400, 000. 00, from the 1st Respondent, on behalf of the 2nd Respondent, in varied amounts, at different times. What is in dispute is what the said sum of money was intended to be applied to. 8.2 The two competing arguments are whether the said sum of money was given to the Appellant for the purpose of paying taxes to ZRA or as fees for the Appellant for the services he was to render to the Respondents. 8.3 The fact is that after collecting the said amount of money, the Appellant did not pay the taxes to ZRA which were assessed at ZMW 1, 220, 843.00. It is however, evident that he was somewhat instrumental in the release of the truck with the goods from Nakonde up to Lusaka. J8 8.4 This is supported by the emails passing between the Appellant and one Sydney Chibbabbuka, a Commissioner at ZRA, between 22nd May and 27th August 2021. The emails occur from page 168 to page 176 of the Record of Appeal. The goods were nonetheless, offloaded from the truck and detained by ZRA until the 1st Respondent sourced for additional finances and paid ZRA to secure the release of the goods. 8.5 Of significance is that the Appellant purports to have been entitled to a service and consultancy fee even if he did not secure the release of the 2nd Respondent's goods. More so that there was evidence before the trial Judge that the Appellant had asked for an amount in excess of ZMW 700, 000.00 to which the 1st Respondent had said he would pay after the truck and the goods were released to the Respondents. 8.6 There was no evidence before the trial Judge to the effect that the parties had agreed that the Appellant would only be required to secure the release of the truck and the goods from Nakonde boarder post and neither is there any evidence that the parties had agreed on a service and consultancy fee of ZMW 1, 400, 000. 00. 8.7 The question then would be; if this was a business deal, for what purpose did the 1st Respondent pay the Appellant the ZMW 1, 400, 000.00? In our view, there can only be one answer to the question, and that is, the money was intended J9 to secure the release of the truck and the goods from the custody of ZRA into that of the Respondents. 8.8 From the introduction part of this Judgment, it is clear that the Respondents were desperate to have the truck and the goods released at any cost. That is why the 1st Respondent was ready and willing to pay the Appellant each time he demanded some money. 8. 9 In her Judgment, at page 42 of the Record of Appeal, line 21, the learned Judge wondered why the Appellant would accept to refund the ZMW 1, 400, 000. 00 if the entire amount was his fees. This was after the learned Judge had dismissed the Appellant's argument that he made the written admission under duress. 8.10 There would be no basis upon which to disagree with the findings by the learned Judge. The Appellant collected the amount in issue and admitted it in writing. Given that the Appellant did not see the process of securing the goods through, it cannot be said that he was entitled to the claimed amount as his service and consultancy fee. 8.11 We also take the view that since the Appellant's task was to secure the release of both the truck and the goods; his fees would have been subject of negotiation upon accomplishing the task. Because the parties did not agree on the fees for the Appellant, we take the view that the fees for the part that the JlO Appellant played ought to have been subjected to an assessment. 8.12 However, since the learned Judge below did not order an assessment, we find no reason to interfere with her decision. The Appellant shall pay the Respondents the sum of ZMW 1, 220, 843. 00 as ordered by the Court below 8.12 On the third ground, which attacks the learned Judge for awarding costs to the Respondents, the Appellant seems to suggest that where a plaintiff raises more than one claim in the writ of summons and statement of claim, the Court can only award costs if the plaintiff is successful in all the claims. In this case, it is argued that because the Respondents only succeeded in one out of the three claims, they did not succeed. 8.13 In support of the ground, the Appellant quoted from the case of J .K. Rambai Patel v Makesh Kumar Patel.7 The case speaks to the principle that a successful party is entitled to costs unless found guilty of conduct that makes it improper to grant costs. The Appellant submitted that the Respondents were not successful. 8.14 He also submitted that the Court needed to exercise discretionary power judiciously in line with the decision of the Supreme Court of Zambia in General Nursing Council of Zambia v Ing'utu Milambo Mbangweta.8 Jll 8.15 The arguments above were however, settled by the Supreme Court of Zambia in the case of Attorney General v Musakanya (supra), 1n which the Court made the following pronouncement; "The Appellant has also appealed against the costs which were awarded to the Respondent in the Court below. Mr. Kinariwala says that there is no dispute as to the general principle of law that costs follow the event. Mr. Kinariwala contends, however, that in this case, the Respondent challenged his detention on the five grounds, but that he succeeded on one only and failed on the rest of them, including one which related to a Constitutional issue of general importance and which had not been raised in our courts before. In the circumstances, therefore, it was in his submissions; only fair the learned trial Judge should have ordered that each party bear his own costs. Mr. Kinariwala 's submission is obviously misconceived because the award of costs in the High Court was made on the basis that the Respondent had succeeded in his application, albeit on one ground only and that it was therefore, perfectly proper for him to be awarded costs" (Underlining for emphasis). 8.16 In the case of Straker v Tudor Rose (a Firm),9 Waller LJ stated as follows; "The key issue is whether the Judge misdirected himself. It is well known that this Court will be loath to interje re with the discretion exercised by a Judge in any area but so far as costs are concerned that principle has a special significance. The Judge has the feel of the case after a trial which the Court of Appeal cannot hope to replicate and the Judge must have gone seriously wrong if this Court is to interje re" 8.17 In the case of Zambezi Ranching and Cropping & two others v Associated Tobacco Company10, we awarded costs to a party that had partially succeeded in the High Court. This was based on one of the grounds of appeal which challenged the decision by the High Court for each party to bear their own costs. J12 8.18 In the case at hand, it is noted that of the several claims made in the Court below, the main claim was for the payment of the ZMW 1, 400, 000. 00 or in the alternative, the sum of ZMW 1, 220, 843.00. The learned Judge granted the claim in the alternative after holding that the Respondents gave the Appellant the sum of ZMW 1, 400, 000. 00 but that the Respondents were only entitled to a refund of ZMW 1, 220, 843. 00. 8.19 The two claims which failed were for damages arising out of the claims in the main and in the alternative. These, in our view, were the main claims and success in one of them, constituted substantial success which entitled the Respondents to costs. 9.0 CONCLUSION 9.1 The net effect of our Judgment is that the appeal is unsuccessful. We award costs to the Respondents here and below to be taxed in- defaultt f agreement. J .M. SIAVWAPA JUDGE PRESIDENT ~ f...A._r~ Q --------- ~ ------------ ------------~------------------ A.M. BANDA-BOBO A.N. PATEL SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J13