Sebtrec Zambia Limited and Ors v Development Bank of Zambia Limited (Appeal No. 148 of 2023) (11 July 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 148 of 2023 HOLDEN AT LUSAKA {Civil Jurisdiction) BETWEEN: 1 1 :· ·' ,. " SEBTREC ZAMBIA LIMITED ..lvL LuL I i5t APPELLANT CHRISTOPHER SIMBEYE ind APPELLANT RUTH EWETSE SIMBEYE 3rd APPELLANT AND DEVELOPMENT BANK OF ZAMBIA LIMITED RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA, PATEL, JJA On 18th June and 11th July 2024 For the Appellants: Mr. M. Nkhoma Messrs. Robert & Partners For the Respondent: Mr. E.B. Mwansa S.C. & Ms. C. Dokowe Messrs. EBM Chambers JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Legislation & Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 2. The Supreme Court Act, Chapter 25 of the Laws of Zambia 3. The High Court Act Chapter 27 of the Laws of Zambia Cases referred to: 1. Monarch Zambia Limited v Gilbert Hamalembo SCZ Appeal No. 97 of 1999 (unreported) 2. Andrew Tony Mutale v Crushed Stone Sales Limited {1994) S.J. 98 3. Mhango v Ngulube and Others {1963) ZR 61 4. Laston Phiri v Tropical Diseases Research Centre- SCZ Appeal No. 005/2014. 5. Jason Yumba and 22 Others v Luanshya Municipal Council- SCZ Appeal No. 005/2015) (Unreported). 6. Western Co-Op Haulage Limited and Western Province Co-operative Union Limited (In Liquidation) v Zambia Seed Company - CAZ Appeal No. 176 of 7. Finance Bank Limited v Africa Angle Limited, Ibrahim Yusuf, Sildky and Yvonne Phoebe Jedburgh Yusuf {1998) Z.R. 237. Other works referred to: 1. Halsbury's Law of England, Third Edition, Volume 11 at paragraph 291 2. Garner, B.A., & Black, H.C. (2009). Black's Law Dictionary 9th edition J2 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment on Assessment, of Honourable P.B. Mwiinga, sitting as Registrar of the Subordinate Court, dated 25th October 2022, (hereinafter referred to as the Judgment on Assessment). 2.0 BACKGROUND 2.1 It is noted that the main matter in the lower Court, was commenced in the Commercial Division of the High Court and Judgment was delivered by Nkonde J., as he then was, dated 16th August 2019. 2.2 The matter in the lower Court was a typical mortgage action, commenced under Order XXX rule 14xx of the Rules of the High Court, by the Respondent, against the l5t, 2nd and 3rd Appellants, (the Applicant and 1st, 2nd and 3rd Respondents respectively in the Court below). 2.3 From the Record of Appeal (RoA) before us, there is no record of the originating process before the lower Court. Suffice to note, that the dispute giving rise to the appeal herein, relates to the Judgment on Assessment, which was conducted pursuant to the ex-tempore Ruling, delivered by Chenda J., dated 11th March 2020. The said Ruling is noted at page 512 of the RoA. 2.4 It is common ground that the Applicant in the lower Court, caused to be issued a Writ of Execution, on 8th January 2020, which Writ, was set aside, for falling foul of the 180-day, grace period for the payment of the J3 Judgment debt, as per the Judgment of Nkonde. J referred to in paragraph 2.1 above. 2.5 The relevant and instructive portion of the Ruling of Chenda J., provided as follows: "I accordingly order that the Deputy Registrar do inquire whether there was any injury suffered by the 1st 2nd and 3rd Respondent as a , result of the wrongful and irregular execution by the Applicant and if so to assess any compensation sums due from the Applicant to the 1st 2nd and 3rd Respondent. , Lastly, I order that the Applicant shall bear the Respondents' costs of this application of the inquiry and assessment (as the case may be) before the Deputy Registrar. Such costs shall invariably be taxed in default of agreement ". 2.6 It is also noted that the Honourable Registrar, did conduct an inquiry, as directed by the Ruling of Chenda J. A copy of this Ruling, dated 3rd March 2021, (hereinafter referred to as the Ruling on Inquiry), is seen on pages 378 to 382 of the RoA. The pertinent point to note is that the Ruling on Inquiry, settled only the issue as to whether the Appellants suffered any damage, due to the premature, irregular and wrongful execution. 2.7 The proceedings for the assessment, at pages 546 to 580 of the RoA show the assessment conducted by the Registrar of the Commercial Division, Hon P.B. Mwiinga, whose Judgment on Assessment is noted at pages 16 to 35 of the RoA and which forms the subject of the Appeal before us. J4 2.8 On 16th February 2023, the l 5t, 2nd and 3rd Appellants, filed their respective Notices and Memoranda of Appeal. These are noted at pages 3 to 15 of the RoA. 3.0 DECISION OF THE LOWER COURT 3.1 For the purposes of this section, the parties will be referred to as they were in the Court below. 3.2 The learned Registrar proceeded to assess the quantum of damages suffered by the Respondents and referred to the cited case of Monarch Zambia Limited v Gilbert Hamalembo1 where the Supreme Court held as follows: "A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the defendant's case." 3.3 The learned Registrar noted that for a party to be awarded damages of whatever nature, there must be evidence adduced by the claimant, proving the claim or injury suffered and accepted the position advanced by Counsel for the Applicant, that no judgment can be entered in favour of a claimant, in the absence of evidence proving one's case. 3.4 The learned Registrar addressed each of the claims made by the Respondents. For this section, we shall capture the essence of what was decided as follows: a. Damages for trespass through illegally interfering with possession of stand 9, ltimpi, Garneton, Kitwe. JS The learned Registrar referred to the authors of Halsbury's Laws of England, Third Edition, Volume 11 at paragraph 2911 where it states: "Where the wounded feeling of the injured pride of a plaintiff, or the misconduct of a defendant, may be taken into consideration, the principle of Restitution in integrum no longer applies. Damages are then awarded not merely to compensate the plaintiff for the loss he has sustained by reason of the defendants wrongful act, but to punish the defendant in an exemplary manner, and vindicate the distinction between a full and innocent wrongdoer. Such damages are said to be at large, and, further, have been called exemplary, vindictive, penal, punitive, aggravated or retributory.11 3.5 The learned Registrar found from the evidence on record, that this was a proper case in which to award damages for trespass as claimed. However, he did not find the amount of ZMW 120, 000.00 justified, save for the fact of trespass, on the basis that there was no other evidence to suggest the extent of the loss occasioned to the 1st and 2nd Respondents due to the trespass. As a result, a sum of ZMW 3,000.00 was awarded as damages. b. Damages for mental trauma, mental torture, anxiety and emotional pain and distress. The learned Registrar held that these claims failed, as they offended the guidance of the Supreme Court, to the effect that a plaintiff must prove his case failing which he cannot be entitled to Judgment. J6 c. Damages for inconvenience. The learned Registrar observed that based on the evidence on record, the 2nd Respondent was inconvenienced. However, it was his finding that, not having proved how much he could have earned had his operations not been disrupted, he awarded the 2nd Respondent nominal damages of ZMW 1,000.00 for inconvenience. d. Damages for reputational injury or embarrassment On this aspect, the learned Registrar found that based on the evidence on record, and submissions by the p t and 2nd Respondents, the Applicant's actions caused him embarrassment. However, he found no basis for the claim of K8,500.00. Consequently, he awarded the 2nd Respondent damages in the sum of ZMW2,000.00. e. The Claim of ZMW 9,800 as Special Damages The learned Registrar was of the considered view that the claim was proved as required by law and accordingly awarded the 2nd Respondent ZMW 9,800.00 as special damages for the hire of the truck. f. Special Damages for the goods or items The learned Registrar agreed with the Applicant's submissions that these claims be dismissed for lack of merit, and he consequently dismissed the claims on the grounds that there was no evidence to sustain the claims under the law. J7 g. Aggravated Damages The learned Registrar found that the pt Respondent and 2nd Respondent were not legally entitled to this claim as there was no evidence to support the same. h. Exemplary Damages The learned Registrar found this to be a proper case in which to award exemplary damages to the p t and 2nd Respondents based on the Applicant's conduct, who elected to disobey the dictates of the judgment and proceeded to execute before the expiration of the grace period of 180 days. He took the view that this is conduct that could not go unpunished and awarded exemplary damages in the sum of ZMW 10,000.00. i. Claim of special damages to the 1st Respondent in the sum of ZMW 13,000.00 representing animals which died as a result of the execution which included 18 goats valued at ZMW 10,800.00, 10 village chickens valued at ZMW 1,000.00 and 3 turkeys valued at ZMW 1,500.00. The learned Registrar awarded special damages to the pt Respondent but only in the sum of ZMW3, 600.00 representing 6 goats exhibited as evidence of the animals that died. rd 3.6 The learned Judge proceeded to address the question of whether the 3 Respondent is entitled to any relief sought in this matter. The learned Registrar was of the view, that she was not entitled to any relief, because on record, there is nothing one could call evidence either directly or J8 indirectly adduced by the 3rd Respondent. In the absence of evidence, the learned Registrar dismissed the 3rd Respondent's case for lack of evidence. 4.0 THE APPEAL 4.1 Dissatisfied with the Judgment on Assessment, the 1st Appellant filed a Notice and Memorandum of Appeal on 13th February 2023, advancing two (2) grounds of appeal, namely; ,. The Court below erred in law and fact in attributing the claims for damages for mental torture and anxiety, inhuman and degrading treatment, emotional pain and distress to the 1st Appellant against what was/is revealed by the Application for Assessment of Damages in respect of the 1st Appellant. ii. The Court below erred in law and fact in refusing to award special damages to the 1st Appellant for animals namely; 12 goats, 10 village chickens and 3 turkeys slaughtered in the night the Respondent wrongly and irregularly took possession of the house over which the Respondent had full charge through their security guards. 4.2 The 2nd Appellant filed a Notice and Memorandum of Appeal on 13 th February 2023, advancing nine (9) grounds of appeal, as follows: i. The Court below erred in law and fact in having at the stage of assessment of damages despite acknowledging 1st Appellant the Appellant had suffered damages, to have allowed assessment to be overshadowed and mixed up with an issue to have been determined at inquiry stage namely the issue of damages found to J9 have been suffered vis-a-vis the issue of actual assessment of damages suffered. ii. The Court below was wrong in law and fact thereby scuttling the whole process of general damages using as a yardstick and relying on monetary figures indicated against general damages in the summons in respect of the 2nd Appellant. iii. The award of ZMW3000.00 as damages for trespass granted the circumstances under which the trespass occurred was on the lower side. iv. The Court below erred in law and fact in discounting and refusing to award general damages whether separately or as a global sum for mental trauma, mental torture, anxiety, emotional pain and emotional distress on the ground that there was no evidence to prove the claims. v. The award of ZMW1000.00 as damages for inconvenience granted the circumstances under which execution took place and what the 2nd Appellant underwent was on the lower side. vi. The award of ZMW2000.00 as damages for embarrassment granted circumstances under which the wrongful and irregular execution took place was on the lower side. vii. The award of ZMWl0,000.00 as exemplary damages considering the circumstances under which the wrongful and irregular execution took place was on the lower side. JlO viii. The Court below erred in law and fact in failing to award aggravated damages to the 2nd Appellant for alleged lack of evidence whilst acknowledging wrongful and irregular execution was carried out when it was raining. ix. The Court below erred in law and fact, under circumstances of this case and as per evidence on record following its establishing as per import of its 3rd March, 2021 Ruling that household goods in various rooms were damaged, to have at assessment refused to award assessed amounts for damaged goods on the grounds that there was no evidence goods were damaged and no receipt was exhibited. 4.3 The 3rd Appellant filed a Notice and Memorandum of Appeal on 13th February 2023, advancing one (1) grounds of appeal, namely; i. Whether the Court below did not error in law and fact through improper exercise of its discretion in light of various legal issues and facts apparent from record arriving at the finding that the 3rd Appellant was not entitled to damages for lack of evidence. 5.0 THE 15 2nd and 3rd APPELLANT'S ARGUMENT IN SUPPORT OF THE APPEAL \ 5.1 The heads of argument filed on 17th May 2023, are on record and have been duly considered by the Court. Jll 6.0 THE RESPONDENT'S HEADS OF ARGUMENT 6.1 The Respondent's heads of argument dated 25th July 2023, are on record and have equally been considered by the Court. 7.0 THE 1st ,2nd and 3rd APPELLANT'S ARGUMENT IN REPLY 7.1 The Appellants filed their respective heads of argument in reply on 14th June 2024, upon obtaining leave of a single Judge of the Court. We have noted that the Appellants have purported to file these 'under protest' to what they believe are the Arguments of the Respondent, filed out of time and without leave. 7.2 We have noted from the Record, and there is no confirmation as to when the three Appellants served their respective heads of Argument on the Respondent, nor is there any application for us to consider in terms of Order Vll1 of the Rules of this Court. We shall therefore not be drawn into a feeble attempt by Counsel to have the Respondent's heads of argument expunged for allegedly being improperly before the Court. 8.0 THE HEARING 8.1 At the hearing, learned Counsel placed reliance on their respective Heads of Argument as filed in Court. 8.2 Having reflected on the eleven {11) grounds of appeal, which have been quoted above, we have serious concerns on the propriety of the grounds and thereby the propriety of the appeal before us, considering the J12 provisions of Order X rule 9 (2) of the Rules of the Court of Appeal as read with section 12 of the Court of Appeal Act1 . 8.3 We will revert to this issue later in our judgment. 9.0 DECISION OF THE COURT: WITH RESPECT TO THE 15r APPELLANT 9.1 We have carefully considered the grounds of appeal, the impugned Judgment on Assessment of the lower Court, and the submissions of Counsel respectively. 9.2 We will interrogate the grounds of appeal as canvassed by the Appellants1 respectively. We note that of the two grounds of appeal, filed by the 1st Appellant, it has, by notice of abandonment/withdrawal, of 13th April 2023, abandoned its first ground of appeal. 9.3 With respect to ground 2, we note with displeasure that the 1st Appellant has not identified the error of law and fact, that was apparently made by the lower Court. This omission, we have noted, runs through the appeal and most of the grounds of appeal fall foul of this requirement. 9.4 We have combed the record of proceedings and have noted the respective affidavits filed by the Parties for the assessment. We have noted the Affidavit evidence of Chanda Mutati at page 304 of the RoA and have noted the contents therein. We have no reason to interfere, with the finding of the learned Registrar, on his refusal to award special damages, based on his finding that the Respondent had no control over the incident wherein J13 thieves had broken into the property and slaughtered the cited animals, the subject of the claim for special damages. 9.5 The learned Registrar based his determination, on decisions of the Supreme Court in the cases of Andrew Tony Mutale v Crushed Stone Sales Limited2 and Mhango v Ngulube and others,3 which established the principle, that a party claiming a special loss must prove that loss, and do so with evidence, for the Court to determine that loss. He also noted that any shortcomings in the evidence to prove special loss, would react against the claimants. 9.6 We have no reason to interfere with this finding of the lower Court. Ground 2 of the ist Appellant's ground of appeal is dismissed. WITH RESPECT TO THE 2nd APPELLANT 9. 7 With respect to the nine (9) grounds of appeal, we have scrutinized the grounds as presented. We have already remarked on the propriety of the appeal with reference to the mandatory provisions of Order X rule 9 {2} of the Court of Appeal Rules1 . 9.8 We are forced to make an observation, which appears to transcend beyond the 2nd Appellant, and seen to be a general trend in all the grounds of appeal raised by the three Appellants. The grounds of appeal, as couched, are argumentative and narrative and do not identify the error of law or fact, made by the lower Court, save to voice the dissatisfaction of the Appellants. J14 9.9 Order X rule 9 {2) of the Court of Appeal Rules1 provides as follows: "A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively. (the emphasis is by the Court). 9.10 We are alive to the mandatory nature of the Order cited above, and in the absence of any specific point of law or fact that was wrongly decided, all we can decipher from these grounds of appeal, is that the 2nd Appellant remains aggrieved by the Judgment on Assessment. 9.11 We have also noted that the 2nd Appellant appears to canvass the wholesome position, that the lower Court, in its Ruling on Inquiry, having found that the Appellants were entitled to damages, erred subsequently, by not awarding the Appellants, the quantum of damages they were seeking as is noted in ground 1 of the appeal. 9.12 This, in our considered opinion, is a flawed argument. It is clear, that the Ruling on Inquiry, was simply to determine whether there was need to escalate the process to Assessment. 9.13 The Honourable Registrar, in his Ruling on Inquiry, dated 3rd March 2021, at page 382 of the RoA, found as follows: "In light of the above, I am satisfied that the Applicants have succeeded in discharging their evidential burden of proving that the wrongful execution caused damage to them. What remains JlS therefore, same of which will be resolved through assessment proceedings, is the question as to the extent or quantum of the damages suffered. For the avoidance of doubt, in this Inquiry Ruling, I do find in favour of the Applicants as I hold the view from the evidence on record and the submissions that damage was caused to the Applicants due to the wrongful execution of the Respondent Bank." (emphasis added.) 9.14 It is our considered opinion, that the 2nd Appellant's grounds of appeal, as couched, apart from being narrative and argumentative, do not reveal where and how the lower Court erred with sufficient clarity for an appellate Court to set aside findings of fact, based only on dissatisfaction with the quantum awarded. By way of example, we note that ground 2, which we have quoted above, and repeat hereunder, for emphasis, reads: "The Court below was wrong in law and fact thereby scuttling the whole process of general damages using as a yardstick and relying on monetary figures indicated against general damages in the summons in respect of the 2nd Appellant." There is simply no ground of appeal as phrased. We dismiss ground 2. 9.15 Moving on, our observations above notwithstanding, grounds 3, 5, 6 and 7, canvass the argument that the award "was on the lower side." Without any hesitation, we dismiss the said grounds of appeal. 9.16 With reference to grounds 4, 8 and 9, similarly, the Appellants have misunderstood the effect of the Ruling on Inquiry and the Judgment on Assessment and appear to cite them interchangeably. We have anxiously scrutinized the Judgment on Assessment, the subject of the Appeal, and note the following at page 27 (J12} of the RoA: " ... / hold a firm view that the Ruling of the Registrar which found that the Respondent suffered damages cannot correctly be interpreted to mean that, all the claims as appear on the summons had been proved as having been damages suffered by all. For any claim specified on summonses, it is for the parties alleging to prove that the same was suffered and they can only do that through evidence." 9.17 It is further noted from the Judgment on Assessment, at page 32 (J17) of the RoA, the learned Registrar found as follows: "I now turn to the claim for special damages for the goods or items (i.e. household goods) in respect of goods from bedroom number 2, bedroom number 3, livingroom, dining room, study room, kitchen/pantry, bathroom and patio/veranda. These I will deal together. From the evidence on record, no receipt was exhibited to prove that damage was caused to any of the items consequent upon the same were replaced, neither was there any evidence to show that the goods shown in exhibits C4 to ClS that the goods were damaged. All the photos were showing were goods or items removed from the 2nd Respondent stated that they were transported and kept somewhere. I am alive to the fact that he said the receipts were damaged in the rain but, from the photos exhibited by the Respondents, his own mother and worker could be seen in the photo, J17 standing outside not under any shelter to suggest that it was raining. I do therefore did not believe him when he said all the receipts were soaked in rains without showing a photo of the soaked receipts. I do, consequently, agree with the submissions of the applicant to the effect that these claims be dismissed for lack merit. I do therefore dismiss the herein referred to claims for lack of merit as there simply is no evidence to support the claims as by law required". 9.18 We are fortified in our position that the learned Registrar, having made findings of fact and noted that evidence of certain claims, had not been placed before him, which essentially meant that the burden of proof had not been discharged, cannot now be the subject of an appeal. We dismiss grounds 4, 8 and 9. 9.19 Our observations above notwithstanding, we have also noted that nearly all the grounds of appeal seek to assail findings of fact. Undoubtedly, this was going to be an uphill battle for the Appellants to satisfy the threshold before which an appellate court may reverse such findings. Other than express their discontent, the Appellants have not discharged the burden incumbent upon them. WITH RESPECT TO THE 3rd APPELLANT 9.20 With respect to the single ground of appeal for the 3rd Appellant, apart from re-iterating our displeasure in the manner this ground of appeal is phrased, we note once again that the 3rd Appellant appears to have misunderstood the proceedings at assessment. J18 In canvassing her argument, she places reliance, yet again, on affidavit evidence placed before Chenda J., to support her claim, that the Court erred in finding that there was no evidence to support the award of damages to the 3rd Appellant. We will not interfere with the Ruling of the lower Court noted at pages 34 and 35 of the RoA. We equally dismiss this ground of appeal. 9.21 Before we end this Judgment, we are constrained to make some remarks in the manner this appeal was presented before us. We considered the appeal on its merits, purely in the interest of justice. Our observations noted at paragraph 9 above, entitled us to have dismissed the appeal. Time and again, in this jurisdiction, appellate Courts, have pronounced themselves on the requirements of grounds of appeal. Malila JS, as he then was, in the case of Laston Phiri v Tropical Diseases Research Centre 4 noted as follows: "We pause here to observe that grounds of appeal should be concisely drafted and straight to the point so that the error complained of, be it of fact or law, is apparent on its face. A perusal of the grounds of appeal in the present case reveals that they do not accurately accentuate the appellant's grievance with the lower court. They could have been more elegantly drafted with greater precision as to the misdirection and errors of law that, in the view of the appellant, afflicted the lower court's judgment." 9.22 In another decision of the Apex Court, in the case of Jason Yumba & 22 Others v Luanshya Municipal Council5 , Kajimanga JS, had occasion to consider whether the grounds of appeal were in compliance with rule 58 Jl9 (2) of the Supreme Court Rules2 . In dismissing the appeal, for being incompetent, at page JlS, the learned Judge noted as follows: "There can be no doubt that contrary to the mandatory requirements of rule 58 (2), the grounds of appeal as couched contain arguments and are in narrative form, a fact conceded by the learned counsel for the appellant at the hearing of the appeal. Time without number, we have emphasized in our various decisions the inescapable requirement by partes to comply with the rules of this court and the attendant consequences of failure to do so." 9.23 In a decision of this Court, (and which interrogated the provisions of Order X rule 9 (2) of our Rules1 ), rendered in the case of Western Co-Op Haulage Limited and Western Province Co-operative Union Limited {In Liquidation) v Zambia Seed Company6 , we had occasion to note, that rule 58 (2) of the Supreme Court Rules2 is comparable with Order X rule 9 (2) of the Court of Appeal Rules1, and which we have cited in paragraph 10.9 above. We further noted that the Supreme Court in the case of Finance Bank Limited v Africa Angle Limited and Others 7 noted that the memorandum of appeal did not comply with the rules in that it contains arguments. The Supreme Court pronounced in no uncertain terms: "This practice must stop." 9.24 All the offending grounds of appeal, in casu, cited in paragraph 4 above, are argumentative and narrative, as per the definitions of the words in Black's Law Dictionary 2 and fall foul of the requirement. J20 10.0 CONCLUSION 10.1 Without deviating from our observations in paragraphs 10.20 to 10.23 above and having found no merit in any of the grounds of appeal, we dismiss the appeal. 10.2 We have considered the issue of costs and while the argument that costs follow the event, finds favour with us, in the circumstances of the wrongful, and irregular execution, that brought upon the attendant applications in the lower Court and the appeal before us, we believe that the interest of justice is best served, by an order that Parties bear their respective costs in this Court. M. J. SIAVWAPA JUDGE PRESIDENT ~ b F.M CHISHIMBA A.N. PATEL S.C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J21