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Court name
Supreme Court of Zambia
Case number
Appeal 15 of 2008

Mweempe v Attorney General, International Police & Another (Appeal 15 of 2008) [2012] ZMSC 29 (12 April 2012);

Law report citations
Media neutral citation
[2012] ZMSC 29

SCZ Judgment No. 13 of 2012

PAGE 292

 

IN THE SUPREME COURT FOR ZAMBIA                    APPEAL NO. 15/2008

HOLDEN AT LUSAKA                                                          SCZ/8/2007

(Civil Jurisdiction)

 

B E T W E EN :

 

CLEMENT H. MWEEMPE                                                 APPELLANT

 

AND

 

THE ATTORNEY GENERAL                                               1STRESPONDENT

INTERNATIONAL POLICE                                                2NDRESPONDENT

AVIS RENT A CAR                                                    3RDRESPONDENT

                                                           

 

        CORAM:     Chibesakunda, Silomba and  Mwanamwambwa, J.J.S.

                                On 7th April 2009 and 13th April 2012

 

For The Appellant:                            Mr. M. Magubbwi & Associates

For the 1st  and 2nd Respondent:                   Miss J. Kaumba, Deputy Chief

State Advocate


JUDGMENT


Mwanamwambwa, JS, delivered the Judgment of the Court.

 

Cases Referred to:

1.           Patel v A. G.[2002]  Z.R. 59.

2.           A. G. v Achiume  [1983] Z.R. 1.

3.           Mhango v Ngulube & Others[1983]  Z.R. 61.

4.           Zulu v Avondale Housing Project Limited[1983] Z. R. 172.

5.           Rowland v Dival [1923] 3 All E.R. 270.

6.           Gondwe v Supa Baking Company Ltd (In liquidation) and Akubat

[2001]  Z.R. 57.

7.           Lonhro Cotton Zambia Ltd v Mukuba Textiles Ltd[2002] Z.R. 43.

8.           Sithole v State Lotteries Board[1975] Z.R. 107.

9.           Lyons Brooke Bond v Zambia-Tanzania Road Services Ltd

[1977] Z.R. 317

10.       Carter Joel Jere v Shamayuwa & Attorney General [1978] Z.R. 204.

11.       Mohamed v Attorney General[1982] Z.R. 49.

 

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Legislation referred to:

  1. The Sale of Goods Act, [1893] – Sections 12, 21 and 22.
  2. The State Proceedings Act ,  CAP 71, Section 12.

 

 

The delay in delivering this Appeal is deeply regretted.  It is due to a heavy workload.  When we heard this appeal, Hon. Mr. Justice Silomba was part of the Court.  He has since retired.  Therefore this Judgment is by the majority.

 

This is an appeal against a Judgment of the High Court of 2nd October 2006, dismissing the Appellant’s several claims.  The Appellant’s claims, then as the Plaintiff, were as follows:-

1.           For a declaration and order that he is a bonafide purchaser for value of motor vehicles, registration numbers JEU 330 and JEU 1.

2.           For an order and declaration that he is the registered  and beneficial owner of the aforesaid motor vehicles.

3.           A declaration that any purported and/or actual seizure of the aforesaid motor vehicles by the Defendants and/or their Agents is illegal and wrongful and therefore void abinitio.

4.           For an order of attachment to the said motor vehicles, to the proceedings and an order restraining the second Defendant from interfering with the Plaintiff’s peaceful and quite enjoyment of the motor vehicle.

5.           Damages for wrongful seizure of the motor vehicles.

6.           Further or other relief.

7.           Costs.

 

The Appellant’s case in the Court below was that on 11th July 2003, Interpol impounded his two motor vehicles.  These were a Mercedes Benz, registration number JEU1 and a BMW 330, registration number JEU 330.  He was informed that they were impounded because they were stolen in South Africa.

 

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He testified that he bought the Mercedes Benz locally, in Zambia, through Mr. Zax Tembo, who was selling it on behalf of Mr. Isa Galedoe.  Then it was then registered in Zambia, as AAX 2002, in the name of Galedoe.   That at the time of buying it and changing ownership into his name, he did not know anything adverse about the motor vehicle because it was already cleared and registered in Zambia.  That after buying it he secured for it, a personalised registration number, JEU1.

 

As for the BMW, he said that he bought it from a Mr. Senkwe in South Africa.  That this Mr. Senkwe showed him a certificate of registration in South Africa, then as the owner there.  That the BMW was cleared by Interpol, at the border when it left South Africa.  He was given Interpol clearance documents.  That here in Zambia, he was given a customs import permit and clearance certificate by Zambia Revenue Authority (Z.R.A).  That on 2nd August 2002, he had it registered after the necessary clearance.  That there was no stage when he was told that the BMW was stolen from South Africa.  That there were no averse claims against it up to the time of registration.

 

The case for the defence rested on the evidence of five (5) witnesses.  These were D.W.1, Veronika Schreyer, a Manager with Avis Rent a Car, South Africa, D.W.2, Roelf Dieter Gevers, an Investigator, South Africa, D.W.3, Alexis Neoclaeous, an Operations Director (and a South African) D.W.4, Borniface Ngwira, an

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Assistant Superintendent with Zambia Police Service and D.W.5, Joseph Chanda Chipalata, a Detective Inspector, with the Zambia Police Service.

 

Their combined evidence was that on 17th May 2001, a company called AVIS RENT A CAR, released a Mercedes Benz Car C180, to a Mr. Msoni, on rent.  It was registered as C.P.R. 625 E.C., white in colour.  It was booked until 30th May 2001.  But it was not returned on that date.  It was later reported stolen.  Investigations revealed that it was taken to Zambia.  D.W.1 came to Zambia and identified it as the motor vehicle stolen from her company in South Africa.  Efforts to locate Msoni, to whom the Mercedes Benz was rented, failed.  When it was identified in Zambia, it was metallic green in colour.  That the customs clearance certificate for the Mercedes Benz was fake.  The numbers on the certificate were non- existent at Z.R.A.

 

As for the B.M.W motor vehicle, defence evidence was that it was stolen in a car hijack in South Africa, on 23rd May 2002.  Then, its registration number was 60RM GP.  That on 17th July 2003, it was impounded in Ndola, as a car stolen from South Africa.  In Zambia, it was initially registered as AAL 4769, in the name of Julia Ravena.  It later became JEU330 in the name of the Appellant.  There were two anomalies in connection with it.  One was that on the documents on which it was registered, the engine and chassis numbers did not tally.  They were different.  The other was that

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when it was registered as AAK 4769 in 1992, in the name of Julia Ravena, the colour was maroon.  But when the same BMW motor vehicle was registered in the name of Clement Mweempe, the Appellant, as JEU 330, it was a 2000 model, silver in colour.

 

There was evidence from D.W.4 that both the Mercedes Benz and BMW were not cleared by Interpol.  That the documents that were produced in the Court below, purporting to be Interpol Clearance Certificates were not from Interpol.

 

After evaluating the evidence, the learned trial Judge found as a fact:-                                                                               

(a)That the two motor vehicles, JEU1 abd JEU330, were bought by the Appellant from Zax Tembo, as an Agent for Galedou in Zambia and from Senkwe in South Africa, respectively.

 

(b)That both motor vehicles were stolen from South Africa; and

 

(c)That they were not properly registered in Zambia.  There was fraud in the registration of the motor vehicles.  The customs clearance numbers and Interpol clearance numbers given on the registration documents were non existent.

 

He then said that the issues for his determination were whether a thief or a person who had no authority from the owner of the motor vehicle to sell, could transfer ownership of the motor vehicle to the buyer; and whether the buyer acquired good title to the motor vehicle.

 

        He referred to Section 21 (1) of the Sale of Goods Act1893and held that since the motor vehicles were stolen in South Africa,

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Isa Galedou and Senkwe could not be the owners of the motor vehicles.  That they had no authority from the owners to sell the motor vehicles.  He pointed out that the Mercedes Benz was hired by a person who did not return it.  Therefore, under Section 21 (1) of the Act, the Appellant acquired no better title than the sellers.

 

        Next, he referred to Section 22 of the Sale of Goods Act1893, which deals with goods sold in market overt.  He found that there was no evidence that the Appellant bought the two motor vehicles in a market overt.  He added that even assuming that the Appellant had bought the motor vehicles from market overt, there was undisputed evidence from D.W.4 and D.W.5 that there fraud in the registration of the motor vehicles.  Therefore, the Appellant could not be said to have bought the motor vehicles in good faith and without notice of any defect or want of title on the part of the sellers.  He pointed out that the Appellant did not explain how the false Interpol clearance and customs clearance numbers, were used in registering the vehicles, particularly the BMW, which he bought in South Africa and brought to Zambia himself; and why he used documents relating to a 1992 motor vehicle in requesting the 2000 motor vehicle.  Following Patel v A.G.(1), he concluded and held that the thieves or the persons who sold the two motor vehicles to the Appellant, having no title themselves, could not pass title of the two motor vehicles to the Appellant.  He directed that the two motor vehicles be handed over to the South African Police so that they could be returned to the owners.

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There are four (4) grounds of appeal.  These read as follows:-

“1.         The Court below by reason of flawed evaluation of the evidence on record erred in fact and thereby made a wrong finding of fact on page J11 when it adjudged that both motor vehicles were stolen from South Africa, particularly in respect of motor vehicle JEU 330.

2. The lower Court further misdirected itself in law and fact on the same page by making a decision which is not supported by both the evidence on record and the pleadings, namely, that the vehicles were not properly registered in Zambia and that there was fraud in their registration.

3. The Court below also erred in Law and Fact when on the facts of the case, its simplicitor invoked the provisions of Sec 21 and 22 of the sale of Goods Act and thereby failed to evaluate or consider the effect of the provisions of Sec 23 of the same Act on the rights of the Plaintiff vis-a-vis the evidence on record.

4. The Court below further erred in law and fact on page J13 when it adjudged that the motor vehicles be returned to the owners in South Africa in that firstly there is no evidence of any claimant for JEU 330 and procedurally no party contested ownership in respect of JEU 1 by way of filing any pleadings.”    

 

 

On behalf of the Appellant, Mr. Magubbwi argues grounds one and three together.

 

He starts with BMW, JEU330.  This gist of his argument on the BMW is that none of the defence gave a grain of evidence against the motor vehicle, indicative of the fact that it was stolen from South Africa.  He bases this argument on the fact that no one came from South Africa to claim the motor vehicle as having been stolen from South Africa.  That by contrast, Avis Rent a Car claimed the Mercedes Benz as having been stolen from them.  He attacks, as perverse and unreasonable, the findings of the learned trial Judge that the BMW was stolen from South Africa.  So, he invites us to

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reverse them on the authority of A.G. v Achiume(2), Mhango v Ngulube and Others (3) and Zulu v Avondale Housing Project Limited(4).  In those cases we held that as an appellate Court, we would not reverse the findings of a trial Court unless we are satisfied:-

(a)        That the findings in question were either perverse or made in the absence of any relevant evidence or

(b)        That the findings are based on upon a misapprehension of the facts or

(c)        That the findings are such that on a proper view of evidence, no trial Court acting correctly can reasonably make.

 

He adds that the learned trial Judge glaringly erred in fact and law when he invoked Sections 21and 22of the Sale of Goods Act, 1893in the absence of any evidence to prove that the motor vehicle had been stolen and was sold to the Plaintiff by thieves or persons not being its owners.

 

In response on behalf of the Defendant, Mrs. Kaumba submits that although no one came from South Africa to claim ownership of the BMW motor vehicle, there is evidence on record that on 23rd May 2002, the BMW was stolen from a named owner, in a robbery.  She refers to the evidence of D.W.4 and D.W.5.  She adds that there is evidence from D.W.5 and D.W.6 that the BMW was fraudulently registered in Zambia.  It was not genuinely cleared by Customs office; and Interpol, as per the evidence of D.W.5.  Further that

 

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since it was not sold to the appellant in a market overt, he did not obtain title to it.

 

We have considered the submissions of Counsel and have examined the evidence and Judgment in the Court below, on the BMW motor vehicle.  We do not accept the submission by Mr. Magubbwi that none of the defence witness gave a grain of evidence that the BMW was stolen from South Africa.  As correctly submitted by Mrs. Kaumba, there was evidence from D.W.4 and D.W.5 that on 23rd May 2002, the BMW was stolen, in a robbery in South Africa, from a named owner.  This is as per Interpol circulation report and computer information.  The mere fact that no one came to claim its ownership does not mean that it was not stolen property.  That it was stolen property is confirmed by the improper and fraudulent way it was registered in Zambia.  According to the evidence of D.W.4, D.W.5 and D.W.6 that the “customs clearance certificate” on which the BMW was purportedly cleared  was not issued by Customs Office, and hence not genuine.  There is also evidence from D.W.5 that the chassis and engine numbers for the BMW did not tally.  Further, there is evidence from P.W.4 that the BMW was not cleared by Interpol.  It was registered at Road Traffic and Safety Agency (RATSA) on a purported Interpol clearance certificate that was not genuine.

 

Under Section 12of the Sale of Goods Act, 1893, there is an implied condition on the part of the seller that he has a right to sell

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the goods.  A seller cannot sell the goods which are not his property: See Rowland v Dival (5).

 

In the present case, the thief or thieves who stole the BMW motor vehicle from its owner, on 23rd May 2002, in South Africa, had no right to sell it to Galedoe or anybody else.  So who ever bought it from the thief or thieves never acquired title to it.  Accordingly, he passed no title to the Appellant.  In the circumstances, we hold that the learned trial Judge was on firm ground in finding that Senkwe or Galadoe had no authority to sell it to the Appellant.  On the evidence, there are no basis to reverse the findings of fact by the learned trial Judge on the BMW.  In our view, the learned trial Judge was right in invoking Sections 21and 22of the Sale of Goods Act, 1893.

 

On the Mercedes Benz, the gist of Mr. Magubbwi’s submission is that Lucky Msoni, with the licence of the 3rd Defendant, acquired voidable title to the motor vehicle when he leased it.  That despite the fraudulent manner Lucky Msoni may have acquired it, he effectively passed on title of the motor vehicle to the persons who later sold it to the Appellant.  He argues that this is so because the title of Lucky Msoni to the Benz was not avoided at the time of sale.  Therefore, the Appellant bonafidely and innocently purchased it from Galedou, through Zax Tembo.  That the Appellant is the legal owner.  In support of his submissions he referred us to Halsbury’s Laws of England,4th Edition, Vol 41, paragraph 748 and Section

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23 of the Sale of Goods Act, 1893.  The paragraph and section deal with voidable title and voidable contracts.

 

He further submits that the Appellant was an innocent purchaser for value and had no notice of any adverse claim to the Benz.  As such, he is protected by the law.  To support this argument he cited Audrey Wafwa Gondwe v Supa Baking Company(In Liquidation) and v. Akubat(6).

 

In response on behalf of the Defendants, Mrs. Kaumba submits that the learned trial Judge was on firm ground when he made a finding of fact that the Mercedes Benz was stolen from South Africa and in invoking Sections 21 and 22 of the Sale of Goods Act, 1893.  She points out that a car hire agreement should be distinguished from a hire purchase agreement.  That a hire purchase agreement is a rent to own purchase plan under which the buyer takes possession of goods, with the first payment and takes ownership with the final payment.  That it is a lease of the property by which ownership is transferred to the lessee at the end of the term.  That on the other hand to hire is to procure the temporal use of the property, usually at a set price.  She submits that under a car hire, a purported sale to a third party is null and void, for want of title.  A person who has no title to goods cannot pass title to another.  That under the hire purchase agreement, a third party assignment is voidable; but the doctrine of let the buyer be aware, applies.  She points out that in this case, the transaction

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between the 3rd Respondent and Lucky Msoni was a mere car hire agreement and not a car hire purchase agreement.  She says that the learned trial Judge correctly addressed himself on the law when he said that the issue he had to determine was whether a thief or a person who had no authority from the owner of a motor vehicle, could transfer ownership of it to the buyer, and whether the buyer acquired good title to such a motor vehicle; and in applying Section 21 of the Sale of Goods Act, 1893.  She then refers us to Lonhro Cotton Zambia Limited v Mukuba Textiles Limited(7).   In that case, on 20th July 1997, the Appellant dispatched 120 bales of lint cotton weighing 3 tons, for export to South Africa, through a freight company, Walford Meadows.  This cotton did not leave the country; but found its way to Ndola, where it was sold by one Patrick Choolwe to the Respondent.  Choolwe had represented himself to the Respondent as a Farmer from Mumbwa.  He sold the cotton to the Respondent as his own.  Choolwe was arrested, prosecuted and convicted of theft of the cotton.  By the time the theft was discovered, the Respondent had used up the cotton at its factory.  The Appellant instituted proceedings against the Respondent, to recover the value of the cotton.  The High Court, upon consideration of Sections 21, 22 and 23 of the Sale of Goods Act, 1893, found that the Respondent had acquired good title to the cotton.  On appeal, it was held as follows:-

(i)          Where goods are sold by a person who is not the owner thereof, and who does not sell them under authority or with the consent of the owner, the buyer, where goods are sold in the market overt, according to the usage of  the market,

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obtains good title to the goods, provided he buys them in good faith and without notice of any defect in, or want of title, on the part of the owner.

(ii)        The Defendant’s factory cannot be said to be an open market or market overt.

 

She argues that the Appellant did not buy the Mercedes Benz in a market overt.   He bought it from Zacks Mbewe, who was selling it on behalf of Galedou.  That Zacks Mbewe had taken it to the Plaintiff’s working place, where it was offered for sale.  She submits that such a sale cannot be said to be at open market overt, for the purpose of bringing the Appellant under the protection of Section 22 of the Sale of Goods Act, 1893.   In support of her submission, she cited Patel v Attorney General (1).   The brief facts of that case were these:  The Plaintiff was approached by two men, at his shop.  The two informed him that they had a car for sale.  It was a Mercedes Benz E240, Registration Number AAT5552.  He bought it for U.S. $28,000.   He had ownership changed in his name.  The Benz was later impounded by the Police.  There was evidence that it was earlier stolen in South Africa, in a car hijack.

 

The Appellant instituted an action for a declaration that he was the lawful owner and for the return of the motor vehicle.  The claims were dismissed by the High Court.  On appeal, this Court dismissed it and held:

(i)          Where goods are sold in the market, according to the usage of the market, the buyer carries good title to the goods,

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provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.

(ii)        A market overt is defined as an open, public and legally constituted place.

 

This Court further stated that the sale of a motor vehicle by people  going to the Plaintiff’s shop was not sale on a market overt.  She argues that the learned trial Judge was correct in applying Sections 21 and 22 of the Sale of Goods Act 1893, which deal with sale by a person who is not the owner of the goods and sale in market overt.

 

We have considered the submissions on both sides on the Mercedes Benz and have looked at the cases cited.  It is common ground that the Mercedes Benz was hired by Lucky Msoni from Avis Rent a Car.  The Benz was never returned. It was stolen from the owner.  Thereafter it was brought to Zambia. It was then privately offered for sale, and actually sold, to the Appellant, at his company.  The facts of this matter are very similar to those in Patel v Attorney General (1), as set out above.  In this case Lucky Msoni was a thief.  He stole the Mercedes Benz from Avis Rent A Car.  He had no title, voidable or otherwise, to the Mercedes Benz.  Therefore, he could not pass title to the person who bought the Benz.   Further, Section 12 of the Sale of Goods Act 1893, expressly states that there shall be an implied condition on the part of the Seller that in the case of a sale he has a right to sell the goods.  A

 

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seller cannot sell goods which are not his property: See Rowland v Divall (5).

 

On the facts of this matter, we are of the view that Galedou too, never acquired title to the Mercedes Benz.   So, he could not confer title to the Appellant.  On the authority of Patel v Attorney General (1),    We hold that sale of the Mercedes Benz to the Appellant, at the premises of his company, was not sale at a market overt.  Accordingly, the Appellant cannot avail himself of the protection under Section 22 of the Sale of Goods Act 1893.  In effect, we do not accept the submissions of Mr. Magubbwi on the Mercedes Benz.   Gondwe v Supa Baking Company Limited (6) he relies on bonafide purchaser for value, is out of context and does not apply, in this case.  That was case involving sale of land.  It was not a sale under the Sale of Goods Act 1893.

 

On the evidence, the learned trial Judge was correct in his findings of fact and in holding as he did.

 

On ground two the gist of Mr. Magubbwi’s submission is that the findings of the learned trial Judge that there was fraud in the registration of the motor vehicles was wrong and should be upset because fraud was not pleaded and was not supported by any evidence to the required standard of proof.  He says that paragraph 6 of the defence is vague and does not constitute a specific pleading

 

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of fraud, as required by the Rules of pleadings.  The paragraph in question reads as follows:-

“6.     That as regards the BMW, registration number JEU 330 silver in colour, the Defendants will aver that the same was reported and confirmed stolen from South Africa and that there are no details of its registration at the Road Traffic Commission Central Motor Vehicle Registry and no clearance details at Zambia Police Interpol Office.”

 

In support of his submission, he refers us to a number of authorities.   One of them is Zulu v Zesco Limited, S.C.Z. No.10 of 2005 (unreported).  He makes specific reference to a passage at page J.7 which reads as follows:-

“In any case, the issue of lack of authority by the person who wrote the letter of discharge and the need of consent of the Managing Director were never pleaded and argued by the parties.  They were generated by the learned trial Judge himself in his Judgment.  The issue of the Disciplinary Committee acting ultra vires their powers did not, therefore arise for consideration.”

 

In the alternative, he submits that even assuming the plea of fraud was available to the Defence, the standard of proof of fraud fell short of the required standard of proof, set by Sithole v  State Lotteries Board (8).   That case holds that if a party alleges fraud, the extent of the onus on the party alleging is greater than a simple balance of probabilities.

 

 

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In response on behalf of the 1st Defendant, Mrs. Kaumba submits that there is evidence by D.W.5 that the registration of the BMW was done fraudulently.  She adds that there was evidence by D.W.6, a Customs Investigator that the BMW was not genuinely cleared by Customs Office.  That this is the position of the 1st Respondent regardless of how the two motor vehicles were registered.

 

We have considered the submissions by both Counsel on this ground.  We have also examined the pleadings, evidence and submissions in the Court below.  This ground hinges on the pleading, or otherwise, of the Defence of fraud, by the Respondents, and the standard of proof on a plea of fraud.  The issue of pleadings was dealt with in Lyons Brooke Bond (Z) Limited  v Zambia Tanzania Road Services Limited (9).  In that case, Desai J. stated as follows:-

“The function of pleadings is to assist the Court by defining the bounds of the action, which cannot be extended without leave of the Court and consequential amendment of the pleading.  The unfortunate tendency to allow issues not defined in the pleadings to be raised without amending the pleadings, has been denounced: See, e.g. Hanbury v Bank of Montreal (18).”

 

There are some matters which the Defendant must specifically plead in his defence if he intends to rely thereon.  Order 18, Rule 8 (c) of the Rules of the Supreme Court provides that a party must, in any pleading subsequent to a statement of claim, plead

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specifically any matter which raises issues of fact not arising out of the proceeding pleading.  This Rule specifically enforces one of the cardinal principles of the present system of pleading, viz, that every defence must plead specifically any matter which makes the claim not maintainable.  A Defendant may raise, by his defence, as many distinct and separate and, therefore, inconsistent defences as he may think proper.  But all these defences must be clearly and distinctly pleaded, and the facts upon which one is grounded should be stated separately: no evidence of such matters can as a rule, be given at the trial if not expressively pleaded, as observed in Davies v New Merton Board Mills Limited (19)”.

 

In Carver Joel Jere v Shamayuwa and Attorney-General (10), this Court too, dealt with the issue and took it further.  In that case, Counsel for the Appellant contended that the defence put forward at trial was never pleaded and was never put to the plaintiff in cross examination; and therefore, the learned trial Judge erred in admitting the defence in evidence.  This Court observed and held as follows:-

“It is one of the cardinal rules of pleadings for the party to tell his opponent what he is coming to Court to prove and to avoid taking his opponent by surprise.  If he does not do that, the Court will deal with it in one of two ways.  It may say that it is not open to him, that he has not previously raised it and will not be allowed to rely on it; or it may give him leave to amend by raising it and protect the other party, if necessary by telling the case stand down.  Where defence not pleaded is let in by evidence and not objected to by the other

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side, the Court is not precluded from considering it.  This is emphasized in the case of the Robinson Settlement, Grant v Hobbs [1912] 1 Ch. D. 728:

The rule is not one that excludes from consideration of the Court, the relevant subject matter for decision by simply …. on the ground that it is not pleaded.  It leaves the party

in mercy and the Court will deal with him as just.”

 

In the present appeal, we agree with Mr. Magubbwi that the defence of fraud put forward in evidence, was not specifically and distinctly pleaded by the 1st Respondent.   But we note that when the 1st Respondent led evidence of fraud through D.W.4, D.W.5 and D.W.6, the Appellant did not raise an objection.  The evidence and the defence were let in.   We further note that fraud was argued on, in the submissions, by both the 1st Defendant and the Plaintiff in the Court below (See pages 129 (lines 35-40), 130 (lines 7-12), and 138 (lines 1-3,6-8, 10-13, 19-22).  In the circumstances, we hold that the learned trial Judge did not err in admitting the evidence and considering the defence of fraud.  It is too late at appeal stage, for the Appellant to challenge the evidence and defence of fraud.

 

As to the standard of proof, we are of the view that the evidence of D.W.4, D.W.5 and D.W.6, as evaluated by the learned trial Judge, was sufficient to prove fraud, on a standard greater than a simple balance of probability.  Indeed, we note that in the heads of argument before us, Mr. Magubbwi acknowledges that

 

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Lucky Msoni got the Mercedes Benz from the 3rd Respondent by fraud.

 

For the foregoing reasons, ground two of the appeal fails for lack of merits.

 

On ground four, Mr. Magubbwi raises three main arguments. 

 

Firstly, he challenges the findings of fact by the learned trial Judge, on the BMW and the Mercedes Benz.  With regard to the BMW, he argues that, given matters submitted under ground one and two, the finding by the learned trial Judge that the BMW was stolen from South Africa, is perverse, wrong and against the evidence.  Therefore, should be reversed.  As regards the Benz, he repeats his earlier argument that the Plaintiff is a bonafide purchaser and hence entitled to the declaration sought.

 

Secondly, he argues that under the State Proceedings Act, CAP 71 of the Laws of Zambia, the Attorney General can only conduct litigation on behalf of the State and not private companies or individuals.   Therefore, the Attorney General cannot legally represent the 3rd Respondent. 

 

Thirdly, he argues that the 3rd Defendant, not having filed any defence, it did not challenge the Appellant’s case at trial.  

 

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Therefore, no finding should have been made in favour of the 3rd Respondent.

 

In response on behalf of the 1st Respondent, Mrs. Kaumba submits that the failure by the 3rd Respondent to file a defence does not affect the case for all the Respondents, since as earlier submitted, the case was decided on the basis of sale by a person who was not the owner of the Mercedes Benz and was not a sale in market overt.  She argues that D.W.1 and D.W.2 testified merely as witnesses for the State, on the circumstances surrounding the theft of the Benz.  That there is nowhere on record where it is indicated that the 3rd Respondent was represented by the Attorney General.

 

We have considered the submissions on both sides.  On the status of the BMW and Mercedes Benz, we repeat what we said on grounds one and three; the gist of which is that both motor vehicles were stolen in South Africa.  Those who stole them had no title to pass to the subsequent buyers, including the Appellant.  They were not bought by the Appellant on market overt.  He was not a bonafide purchaser.  We also upheld the findings of fact by the learned trial Judge, on the motor vehicles.  There is no basis to reverse them.

 

On the second argument, we note that it is the conduct of the State, through its Agent, Interpol, which gave rise to these Court

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proceedings.  It is common ground that the 3rd Respondent came in as a victim of theft of the Mercedes Benz.  In our view, the State and the 3rd Respondent, have a common interest in this matter.  Their cases are closely inter-linked.  Accordingly, in defending themselves

in the Court below, it was in order for them to do collective effort.  Given the common interest of the State and the 3rd Respondent, in this matter, there is nothing illegal, under the State Proceedings Act, in the Attorney General extending his legal representation to cover the 3rd Respondent, as well.  Indeed, no authority has been cited by the Appellant, for his argument to the contrary.

 

As to the failure by the 3rd Respondent to file defence in the Court below, the short answer is found in the decision of this Court in Mohammed v A.G. (11).  In that case, Ngulube, the Hon. Deputy Chief Justice as hethen was, said this:

“The Defence was a denial that the Fire Ranger was acting in the course of his employment.  The learned trial Judge rejected this defence and Mr. Muzyamba submits that in that even and in every case where the defence set up is defeated, the Plaintiff ought to succeed as a matter of course.

An unqualified proposition that a Plaintiff should succeed automatically whenever a defence has failed is inacceptable to me.  A Plaintiff must  prove his case and if he fails to do so, the mere failure of the opponent’s defence does not entitle him to judgment.  I would not accept a proposition that even if a Plaintiff’s case has collapsed of its ignition or for some reason or other, judgment should nevertheless be given to him on the ground that a defence

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set up by the opponent has also collapsed.  Quite clearly, a defendant in such circumstances would not even need a defence.”

 

Following Mohammed’s case, we hold that it was for the Appellant in this case to prove his case in the Court below.  He

failed to do so.  So the 3rd Appellant did not even need to file a defence.  It was in order for the learned trial Judge to find in favour of the 3rd Respondent.

 

For the foregoing reasons, we find no merits in ground four.  We dismiss it.  All in all, this appeal is dismissed.  We award costs to the 1st Respondent, to be taxed in default of agreement.

 

 

 

 

 

…………………………………

L. P CHIBESAKUNDA

SUPREME COURT JUDGE

 

 

 

 

 

 

 

 

………………………………………

M. S. MWANAMWAMBWA

SUPREME COURT JUDGE