SALE

This was an appeal against the Judgment of the High Court in which the learned Judge entered judgment in favour of the Respondent in the sum of US$ 221,575.60 less the Respondent's commission of US$30.00 per ton of fertilizer sold as agreed, plus interest and costs. The history of this appeal is that the Respondent and the Appellant negotiated a Memorandum of Understanding to establish an interagency agreement for the sale of the Respondent's fertilizer by the Appellant. The Appellant was expected to sell the fertilizer on the Respondent's behalf and then deposit the monies into the Respondent's designated account. A dispute arose when the Appellant suddenly stopped depositing monies realized from the sale of the fertilizer into the Respondent's account. The Respondent claimed that 715.45 tons of fertilizer valued at US$ 221 575.60 was delivered to the Appellant while the Appellant denied receiving the alleged quantity of fertilizer claiming that it only received 413.75 tons which was delivered to its Ndola Depot and was received and signed for. The Appellant also claimed that it had mistakenly deposited ZMK 1 433 390 950.00 collected into its own account instead of the Respondent's, but that subsequently, that sum was remitted to the Respondent. The Appellant further claimed that it withheld the sum of US$ 20 868. 20 and K 2 386 051.20 in order to offset a debt which the Respondent owed it. The learned trial Judge accepted the Respondent's evidence that 715.75 tons of fertilizer was delivered and not the 413.75 tons the Appellant claimed to have received shown on the "Goods Received Notes (GRN)".

Held

1. Findings of fact made by a trial court can only be reversed where the appellate court is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts.
2. In law the word “agency” is used to connote the relationship which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties. The relationship of agency arises whenever one person, called “the agent” has authority to act on behalf of another, called “the principal”, and consents so to act. Whether that relationship exists in any situation depends not on the precise terminology employed by the parties to describe their relationship, but on the true nature of the agreement or the circumstances of the relationship between the alleged principal and agent.
3. The relationship of agency is created by the express or implied agreement of principal and agent, or by ratification by the principal of the agent's act done on his behalf. Express agency is created where the principal or some person authorised by him, expressly appoints the agent whether by deed, by writing under hand, or orally. Implied agency arises from the conduct or situation of the parties.
4. It is trite that in trading business, a commercial enterprise may employ a variety of techniques to ensure that its goods reach the intended market. In modern commercial transactions, agency is a vital tool in bringing goods and services to the market. So it is often convenient for the business enterprise to appoint one or more agents whose business is to effect sales. Therefore, the question whether or not a person was an agent of the other depends on the facts of each case.
5. The exchange rate applicable in foreign currency Judgments is the one ruling at the time of enforcement of the Judgment: Zambia Exports and Imports Bank Limited v Mkuyu Farms Limited, Elias Andrew Spyron and Mary Ann Langley Spyron (1993-1994) ZR 36 followed.
6. It is a settled principle of law discussed in a plethora of cases that he who alleges must prove.