Febby Kunda v Tumfwane Savings Group (2023/SID/70) (28 September 2023) – ZambiaLII

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SID/70 FOR THE MBALA DISTRICT / REPUBLIC OF ZAMBIA !ft 1GTHE JUDI~CIARY ~ HOLDEN AT MBALA t (Civil Jurisdiction) MAGISTRATE CLASS f P.O. BOX 420101, MBALA , I -..._--=i.z_~.,..- - ' BETWEEN FEBBY KUNDA PLAINTIFF AND TUMFWANE SAVINGS GROUP DEFENDANT Before: Hon. Deeleslie Mondoka For the Plaintiff : In person For the Defendant : In person JUDGMENT CASES REFERRED TO: i. LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. 21 OF 2020; ii. BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50; iii. BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6; iv. HAONGA AND OTHERS v THE PEOPLE (1976) ZR 200 (SC); v. ATTORNEY GENERAL V. NAWAKWI (SELECTED JUDGMENT NO. 16 OF2016); J1 vi. PRISCA LUBUNGU V. OBBY KAPANGO & OTHERS AND NDOLA CITY COUNCIL SCZ APPEAL NO. 216 OF 2016; vii. NDOLA ENERGY COMPANY LIMITED V LAMAMUDA LIMITED APPEAL NO. 62/2014; viii. ATLANTIC BAKERY LIMITED V ZESCO LIMITED SELECTED JUDGMENT NO. 61 OF 2018. OTHER MATERIALS REFERRED TO: i. BLACK’S LAW DICTIONARY, 9TH EDITION, 2009; ii. ALVIN, W. L. (2013). AN INTRODUCTION TO THE LAW OF UNJUST ENRICHMENT. SINGAPORE MANAGEMENT UNIVERSITY; iii. PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010). INTRODUCTION 1. This Judgement emanates from a claim wherein the plaintiff adjures for restitution of household goods namely: (i) a ‘sum-sound’ home theatre with 5 speakers; (ii) kitchen rack; (iii) 8 breakable plates; (iv) a set of water glasses; (v) a set of mug cups; (vi) set of water glasses; (vii) a set of pots; and (viii) a set of food warmers, which goods were unlawfully collected and was simply not cricket for the savings group to collect the articles in question as security for the debt owed in the manner it did. 2. Further, the plaintiff claimed for any other relief that that court may deem and an order for costs incidental to this suit. BACKGROUND FACTS 3. With that said, hereafter is a recapitulation of the facts in support of the claim. J2 4. On 21st September, 2023, when the matter came up for trial, the plaintiff took the witness stand as PW1 and gave her testimony as hereunder. 5. It was PW1’s testimony that the savings group was scheduled to share out profits on 30th July, 2023––prior to the date of sharing out the profits, group members came to PW1’s home claiming that they needed the balances that PW1 and PW1’s husband were owing the group. 6. PW1 testified that attempts were made to try and reason with them on the matter but they were treading water. And they insisted that they needed to get property equivalent to what PW1 and husband were owing. 7. PW1 inquired as to whether they had papers from the police to allow them access into her home house and they answered in the affirmative. 8. PW1 asked for the papers they said they had before they could proceed but they claimed the same was at the police. 9. PW1 indicated that they then went to the police whereat they were apprised of the need to seek legal recourse in case of a default on the part of PW1, seeing as the same was a debt owed to the group, which according to PW1 was a mere K3, 446.00. The police took a dim view of the group members’ sophomoric behaviour exhibited at PW1’s house and advised that it was the group leaders who had the right to engage PW1 regarding the debt. 10. Not long after their visit at the bill, PW1 sat down with her husband chatting the way forward––the couple agreed that, they would pay up their debt and put the issue to bed in its entirety. Unluckily, before they could make good on their debt, an unknown character from Mufulira, on the Copperbelt purloined a K10, 000.00 from her (PW1) husband’s ZANACO account and as a consequence they could not service their debt as intended. J3 11. On 28th August, 2023, the group members returned to PW1’s house. PW1 and husband attempted to explain that they had been a victim of a financial crime, as some unknown scoundrel withdrew a K10, 000.00 from their account in two batches: a K6, 000.00 and a later a K4, 000.00. PW1 evinced documents marked “FK1”and “FK2”as evidence of the said theft, but the group could not have it. PW1 explained that if not for the ordeal they would have paid off the same. 12. It was PW1’s testimony that notwithstanding explanation tendered by them about losing a K10, 000.00, the group forcibly entered her premises and collected the following household goods: (i) sum-sound home theatre with 5 speakers; (ii) a kitchen rack; (iii) 8 breakable plates; (iv) a set of mug cups; (v) a set of water glasses; (vi) a set of pots; and (vii) a set of food warmers. They then exited; went into raptures for what they perceived as a howling success. 13. During cross-examination PW1 contended that the group entered the house forcibly, but it was established that they had a meeting with some group members who PW1 had allowed inside the house. 14. The Plaintiff called as its second and last witness, PW2, a youth of 19 years old, who gave her version of the facts very much in the manner of PW1, as she merely listed the household goods hereinbefore mentioned by PW1. 15. During cross-examination it was contended that the group’s behaviour was boisterous and that they were not allowed to enter the house. Nothing was advanced in re-examination. THE DEFENDANT’S CASE 16. The defendant had none but two witness to render an account––DW1, a tricenarian of Chulungoma, who testified as hereunder. J4 17. On 27th August, 2023, some members of the TUMFWANE savings group went to PW1’s house without so much as a ‘by-your-leave’. DW1 maintained that they went to PW1’s house with the hope of concluding the matter that had been broached at the police station. 18. DW1 indicated that PW1 came the raw prawn––when she inquired as to where the chairperson, secretary, and treasurer of the group where on the self-same day. PW1 then invited the same inside for a discussion concerning the debt PW1 and husband owed the group. 19. In the house, PW1’s husband informed the group representatives that they had lost money in his ZANACO account to the tune of K10, 000.00, whose fact DW1 and DW2 sympathized, but the ordeal as narrated did not derail them from pressing the inquiry––into the monies that the same owed the group as the same had inordinately delayed to settle the same. 20. PW1 and husband to coin a phrase––extricated themselves from DW1 and DW2 and stood in conference afar off and upon conferring with each other it was agreed that the hereinafter articles be surrendered as security for payment: (i) a radio with 4 speakers; (ii) a kitchen rack; (iii) 4 breakable plates; (iv) 1 plastic plate; (v) 6 mug cups; and (vi) 1 pot with 2 handles. 21. PW1’s husband was such a tattletale; that he beetled off and told his neighbour-cum-friend what had transpired and the same rapped the group members over the knuckles and threatened to have the same felt on their collar, but when he was given the lowdown of the matter herein, he understood and made short shrift of his earlier position and maintained that PW1’s husband was at fault. Soon after DW1, DW2 and group left PW1’s premises. 22. During cross-examination it was contended that the PW1’s neighbour said he was a police officer; PW1 argued that she did not affix her J5 signature anyway agreeing to say that––she had surrendered the articles that the group had collected. DW1 denied owing any monies besides the K3,446.00 all told, which amount she admitted having borrowed from the savings group. 23. Further, it was established that pursuant to section 9 of the TUMFWANE savings group constitution––the savings group through its members was at liberty to claim property equivalent to the quantum owed. And as a rider––DW1 unequivocally expressed that the property has not been sold but has merely been kept on the off chance that PW1 and husband settle their debt. The constitution is marked “TSG1” for purposes identification. 24. The defendant summoned its last witness––DW2, a vicenarian, whose testimony was much in the manner of DW1––thusly, to avoid carrying coal to Newcastle, hereunder is the testimony of DW1. 25. DW2 got on her soapbox and contended that––PW1 and husband owed monies to the group for a period in excess of 1 year––from September, 2022, which money they owed the group in their individual capacity, and it was DW2’s testimony that PW1’s husband as payment for his debt pledged and surrendered a home theatre with 4 speakers, and PW1 surrendered selected kitchen articles hereinbefore mentioned. 26. It was DW2’s testimony that PW1 and husband committed to discharging the debt in question by the 21st day of September, 2023, which debt has hitherto not been paid. 27. During cross-examination, PW1 contended that the constitution was only availed to her a few days before trial. And nothing was advanced in re-examination. 28. And that marked the close of the defendant’s case. J6 UNDISPUTED FACTS 29. Having considered the evidence herein, I find the following to be common cause: (i) TUMFWANE is a savings group wherein PW1, the husband to PW1, DW1 and DW2 are members; (ii) that PW1 and PW1’s husband had borrowed monies and have hitherto not paid back; (iii) that certain members of the savings group did enter the dwelling house of PW1 and collected selected items as security for payment; (iv) that PW1’s husband lost monies to the tune of K10, 000.00 from his ZANACO account. DISPUTED FACTS 30. I find that the herein facts are in dispute: (i) that PW1 was aware of the constitution way before the 28th day of August, 2023; (ii) that the group members in their numbers entered PW1’s abode without her permission. ISSUES FOR DETERMINATION 31. The legal issues that are so fundamental and ought to be resolved are as follows: (i) firstly, what does the notion of restitution entail; (ii) secondly, whether or not there was an instrument binding the plaintiff to the savings group; (iii) thirdly, whether or not the defendant is liable to reimbursing PW1 of the selected household articles herein highlighted; (iv) and lastly, whether or not the plaintiff is entitled to the reliefs sought? ANALYSIS OF THE LAW AND FACTS 32. Firstly, what is restitution? Well. I will glancingly and with aid of authorities demystify the concepts hereunder: (a) Restitution J7 In BLACK’S LAW DICTIONARY, 9TH EDITION, 2009; restitution is defined as being– “a body of substantive law in which liability is based not on tort or contract but on the defendant's unjust enrichment, or simply, return or restoration of some specific thing to its rightful owner or status”. (b) Unjust enrichment Black’s Law defines unjust enrichment, as a benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense. 33. In light of the claim by PW1 against the defendant herein–I would wager according to: ALVIN, W. L. (2013). AN INTRODUCTION TO THE LAW OF UNJUST ENRICHMENT. SINGAPORE MANAGEMENT UNIVERSITY, that––the principle that no one shall be unjustly enriched at the expense of another has been invoked to rationalise the right to restitution in a number of cases which fall outside the provinces of contract and tort. This has eventually led to the recognition of an independent legal discipline known as the law of unjust enrichment. 34. And dealing with the herein idea, the Court of Appeal in our jurisdiction in LESLIE CHIKUSE V. JEREMY BAKANGABA TSHINKOBO APPEAL NO. 21 OF 2020, sympathized with in re BENEDETTI V SAWIRIS AND OTHERS (2013) UK SC 50., concerning the test for unjust enrichment. The said criteria comprise the following questions: (i) has the Defendant been enriched? (ii) has the enrichment at the claimant's expenses? (iii) has the enrichment been unjust? (vi) are there any defences? 35. Further in re BANK OF CYPRUS UK LIMITED V MENELAOU (2015) UK SC 6, it was stated … “that if the first three questions are answered affirmatively and the fourth negatively, the claimant will be entitled to restitution.” J8 36. Secondly, was there an instrument binding the PW1 to the savings group? My port of call here is that––it is a given that savings groups are run by certain set of rules that bind the participants and create a semblance of a social protocol. Without further ado––was this particular group governed by such an instrument? Yes, and by that–– the players herein are bound by the same. 37. The learned authors in black’s law dictionary define a constitution inter alia as––a governing document adopted by an organization for its internal governance and its external dealings. It goes without saying that, the constitution may be an organization's most authoritative governing document, as can be gleaned herein. 38. The legal issues highlighted herein and not elucidated shall be addressed anon. DETERMINATION 39. I am saddled with the burden of meting out an even-handed decision in this matter. I have carefully considered and applied my mind to the facts and law herein, and I resolve as hereunder. 40. From the facts herein distilled, I am a trifle out of sorts by both the plaintiff and defendant’s version of the facts, seeing as it has become undeniable that they were skating over the facts––in part I must add. Firstly, I found it to beggar belief that PW1 as she rehearsed that, she was oblivious of the existence of a constitution to a savings group, whose savings group she had been part of for over a year. Secondly, I looked askance at the version of facts rendered by DW1 and DW2, seeing as the evidence tendered by PW1 marked “FK3” containing video recordings of certain members of the savings group invading the privacy of her home in their numbers, which evidence impeaches the J9 assertion by DW1 and DW2 that only: the chairperson, secretary and treasurer had accessed the dwelling of PW1. 41. Thusly, in re HAONGA AND OTHERS v THE PEOPLE (1976) ZR 200 (SC), it was held inter alia that: … “where a witness has been found to be untruthful on a material point the weight to be attached to the remainder of his evidence is reduced; although therefore it does not follow that a lie on a material point destroys the credibility of the witness on other points (if the evidence on the other points can stand alone) nevertheless there must be very good reason for accepting the evidence of such a witness on an issue identical to that on which he has been found to be untruthful in relation to another accused.” (Emphasis supplied) 42. Further, according to PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010) paragraph 12 – 36 at P. 365: “The credibility of a witness depends on his knowledge of the facts, his intelligence, his interestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury. Amongst the obvious matters affecting the weight of a witnesses’ evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case inquired into either in direct examination to enhance or in cross–examination to impeach the volume of his testimony. So, all questions may be asked in cross examination which tend to expose the errors, J10 omissions, inconsistencies, exaggerations, or improbabilities of the witnesses’ testimony”. (Emphasis added) 43. In view of the hereinbefore, let it be known that, the testimony deployed to brace the defendant’s, case is not beyond reproach, seeing as the same is to put it loosely––out in the field, i.e., when DW1 and DW2 observed that the items were handpicked by the plaintiff and awarded to the group, and that there was no cacophony characterized by––bookable behaviour of sauntering leisurely in the plaintiff’s house by certain group members, with no carte blanche assigned to them by the plaintiff herein. 44. Notwithstanding, I find it ostensible that the plaintiff’s argument and evidence suffers from the disadvantage of being arrantly skewed and pitifully lopsided––say, when PW1 argues that someone from Mufulira stole from PW1’s ZANACO account a K10, 000.00 and framing the same as a basis for their failure to service their debt, notwithstanding the fact that their debt to the savings group pre-dates the unfortunate ordeal herein mentioned. 45. And as an aside––I feel burdened to comment on the conduct herein typified by the plaintiff, which on the face of it seems to suggest that PW1 was blamelessly preyed on by members of the savings group. I want to make it crisp that, the system to which I am under the authority of does not lend itself to the need to allay the feelings of persons with a victim mentality approach, as that is not the drill that defines legal adjudication––in words of one syllable––the judicial system operates on the basis of the law and what the facts and not sympathy. The Supreme Court has, not in so many words, I must add spoken most prodigiously on the foregoing submission. Case in point, in re ATTORNEY GENERAL V. NAWAKWI (SELECTED JUDGMENT NO. 16 OF2016) and in re PRISCA LUBUNGU V. OBBY KAPANGO & OTHERS AND NDOLA CITY COUNCIL SCZ APPEAL NO. 216 OF 2016. J11 46. I will go out on a limb here and assert that: a robust adjudicator, must ensure that he is alert and invokes the inherent jurisdiction vested in him of weeding out hopeless, frivolous, and vexatious matters and those wrongly presented before him after giving the parties an opportunity to be heard1. 47. Furthermore, adjudicators must be wary of litigants who launch unchristian and vexatious matters, as an open sesame approach to suits would open the courts to abuse and as a consequence––the public would exploit the scarce judicial resources, as an accoutrement meet for use in instances where one wishes to renege on their obligation, i.e., under the misapprehension of what they reckon the law provides to be an action constituting an infraction. 48. Therefore, when viewed in the round, it can be gleaned from the facts that the plaintiff is disingenuous in her claim, as she is essaying at circumventing her obligation on making good on her debt to the savings group, which debt she acknowledges, but has astutely qualified the same as being a paltry sum of K3, 446.00, and as a consequence, PW1 has hitherto deprived the group of its monies. 49. Thus, it is not at all a slam dunk argument to decry, however accusatory, as the plaintiff herein has that––the defendant’s act of forcibly appropriating the plaintiff’s (PW1) property offends against good legal taste, especially in light of the fact that there is an instrument, i.e., a constitution, to which PW1 and the entire group subscribe to (whether implicitly or explicitly) and are governed by. 50. To my mind––the fact that the group is administered by a constitution, part of whose provision as at section 9 necessitates for the getting of property from the debtor equivalent to the debt owed as security for the same, does to itself take the sting out of the plaintiff’s argument 1 INDENI PETROLEUM REFINERY CO. LTD V. KAFCO OIL LIMITED; ANDREW BUNGONI; SILAS MUMBA AND EMMANUEL SHIKAPUTO SCZ SELECTED JUDGMENT NO.29 OF 2017 J12 and or claim and renders the same exiguous and a damp squid to say the least. 51. And as I ring down the curtain on this issue, I would like to address–– however briefly, the notion of the catch-all expression herein prayed by the plaintiff: “any other relief the court may deem fit”. The said expression, is not asking the court to limit its authority only to whatever is pleaded and relief sought for, but also for something more when situation so warrants. It is standard language or legalese that lawyers and litigants routinely included in their documents when making a claim. This phrase often gives the judge and or magistrate the ability and flexibility to award something which the judge believes is fair, but which the party forgot to ask for in the pleadings. So, this is a catch-all phrase which gives the arbiter to award other relief, if necessary. This general request is intended to protect a party who may have forgotten to request certain relief which might be advantageous at the final hearing and allows the court the flexibility to provide relief not specifically prayed for in the plaint. 52. Sadly, as much as I commiserate with the plaintiff over her situation––I cannot assuage her concerns with the relief she has not claimed, notwithstanding the orison–– “any other relief, the court will deem fit”. Why one my wonder? Well. The simple reason would be––it would be odd for this court to award legal remedies merely under “any other relief”, as that would fly in the teeth of the Supreme (hereinafter referred to as the court) in re NDOLA ENERGY COMPANY LIMITED V LAMAMUDA LIMITED APPEAL NO. 62/2014, wherein the court overturned a decision by a trial judge who had awarded a party what it had not claimed in its pleadings. 53. More to the point, in re ATLANTIC BAKERY LIMITED V ZESCO LIMITED SELECTED JUDGMENT NO. 61 OF 2018, the Supreme Court held among other things that: J13 … “a court is not to decide on an issue which has not been pleaded. Put differently, a court should confine its decision to the questions raised in the pleadings. It can thus not grant relief which is not claimed. Litigation is for the parties; not the court. The court has no business extending or expanding the boundaries of litigation beyond the scope defined by i.e., parties in their pleadings. In other words, a court has no jurisdiction to set up a different or new case for the parties”. (Emphasis mine) 54. Thus, I much as I sympathize with the plaintiff––I cannot in good consciously acquiesce to awarding in accordance with the plaintiff’s herein claim, seeing as the facts herein and the evidence deployed do not warrant her being awarded the reliefs sought. 55. In other words––the evidence adduced before this court does not make the plaintiff a fitting recipient of the relief sought, seeing as her testimony and evidence adduced does not absolve her of her liability and neither does her testimony negate the fact that she owes the savings group money. In any case, PW1 admits being indebted to the savings group, hence, the application of section 9 of the savings group’s constitution. 56. This matter is dismissed and each party to bear their own cost. 57. Either party has the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGEMENT DELIVERED AT MBALA ON 28TH SEPTEMBER, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J14