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CIVIL PROCEDURE-INJUNCTION-POWER
OF SINGLE SUPREME COURT JUDGE
Manal Investment Ltd v. Lamise Investment Ltd, SCZ Judgment No. 1 of
2001 (unreported).
The appellant had a registered design on a cloth which was similar to one
imported and used by the respondents to cover mattresses of an inferior
quality to that manufactured and marketed by the appellant. The appellant
sought an injunction which was denied by the court, to prevent the respondent
from using the design while the issue of patent protection was pending
in court.
An appeal to a single judge of the Supreme Court secured an interim
injunction. Upon appeal, the Supreme Court found that a single judge
of the Supreme Court has no power under section 4 of the Supreme Court
Act, Cap. 25, to determine a matter involving a decision of an appeal or
a final decision. The Court was mindful that this is bound to cause
difficulties since the Supreme Court does not sit everyday. Thus,
in a case where the High Court refused to grant an interim injunction,
the aggrieved applicant may have no immediate remedy and by the time the
appeal is heard irreparable damage may already have been caused.
This necessitates a review of these provisions.
In its ruling, the Court held that there were no valid grounds for
the High Court’s dismissal of the application for an injunction.
Furthermore, it was not disputed that the appellant had a copyright
in the registered design. The Court therefore allowed the appeal.
CIVIL PROCEDURE - EQUITABLE REMEDIES -
SPECIFIC PERFORMANCE
Zambia Consolidated Copper Mines Ltd v. Eddie Katalayi and Max Sichilongo,
SCZ Judgment No. 2 of 2001 (unreported).
When the appellants were winding up their operations in Kabwe, they advertised
the sale of, among other things, a bowling club, which the respondents
were members of. The respondents sought to buy the club and intimated
so to the Property Superintendent of ZCCM, who proceeded to help them register,
upon his advice, as trustees of the club. On the undertaking that
their request would be considered, they did not submit a bid. The
property was subsequently sold to a third party who put in a bid.
He sued the club members for possession of the building while the latter
sued the appellants for specific performance. The two actions were
consolidated and the members became the plaintiffs.
The trial court awarded specific performance of the sale of the club
house to the plaintiffs and ordered that the defendants give the purchaser
an alternative house. The defendants appealed. The Supreme
Court held that it was not possible without proper basis to ignore
the rights of an innocent purchaser for value and who had no reason to
suspect that there was an adverse claim. The appeal was allowed
and the appellants ordered to pay compensation to the club members.
LAND LAW – REPOSSESSION – WHEN
COMPENSATION PAYABLE
May Vijaygiri Goswami v. Dr Mohammed Anwar Esson and Commissioner of Lands,
SCZ Judgment No. 3 of 2001 (unreported).
The appellant owned stand No. 8492 Lusaka. Following the deportation
of her husband, the appellant lived abroad with him leaving the property
abandoned and neglected. The land was re-possessed by the second
respondent who served a notice of re-entry on a watchman for breach of
the covenant to pay ground rent and allegedly for breach of the development
clause. After re-entry, the land was swiftly allocated to the first
respondent and a certificate of title issued to him. No compensation
was paid. On appeal, the court ruled that the re-entry was lawful
and service of notice proper, but that compensation ought to have
been paid to the dispossessed owner whether re-entry was for good or bad
cause. The Lands Tribunal should therefore have ordered the government
to pay compensation for the real value of the property.
EVIDENCE – HANDWRITING EXPERT – ROLE OF
Giraffe Bus Services Ltd v. Abel Lwitikiko Mwandemwa,
SUCH Judgment No.
4 of 2001 (unreported).
The issue before the trial court was whether the respondent, a former employee
of the appellant had subsequently been allowed by the appellant to obtain
a direct tenancy of the house he lived in from the Lusaka City Council.
Initially, the respondent occupied the home by virtue of his employment
but continued to do so and pay the rent long after he left employment with
the appellant. At some stage the council changed the records so that
he became the direct tenant.
The appellant adduced evidence to the effect that the council’s action
was based on a letter which purportedly carried the Managing Director’s
signature but was actually forged. The Managing Director testified
so in his evidence and brought a handwriting expert to support his claim.
The trial judge rejected the claim of forgery. On appeal it was held
that the court may accept or discard the significance of the factors pointed
out by the handwriting expert and thereby choose whether to accept
his opinion or not. The Supreme Court upheld the trial court’s decision.
CONTRACTS – TERMINATION OF
CIVIL PROCEDURE – ABUSE OF COURT PROCESS
BP Zambia Plc v. Interland Motors Ltd, SCZ Judgment No. 5 of 2001 (unreported).
The parties signed a licence agreement under which the respondent (the
plaintiff) was to run a service station belonging to the appellant (defendant).
The agreement required the plaintiff to purchase and resell stocks of the
defendant’s products and inter alia, meet minimum targets in terms of volumes
or quantities sold. The agreement which was renewable was to run
for one year provided the necessary targets were met. Within a few
months, the defendant tried unsuccessfully to evict the plaintiff, following
the plaintiff’s successful counteraction for an injunction to stop the
eviction.
On the basis of the trial court’s findings that the plaintiff was entitled
to a renewal of the licence, the defendant was unable to effect eviction
at the end of the stated term. The defendant appealed against the
renewal of the licence and payment of compensation for fuel in underground
tanks, which pumps were uprooted by the defendant.
The Supreme Court held that there is no such thing as an
interminable licence agreement, allowed the appeal and ordered compensation
in favour of the plaintiff. They noted that the plaintiff’s action
in instituting a number of actions based on the same facts was an abuse
of the court process.
COURTS – INDUSTRIAL RELATIONS COURT –
JURISDICTION
N.B. Mbazima and Others Joint Liquidators of ZIMCO Limited (in Liquidation)
v. Reuben Vera, SCZ Judgment No. 6 of 2001 (unreported).
In an appeal against a decision of the Industrial Relations Court, the
complainant, Reuben Vera (now deceased and represented by his administrator),
sought a declaration that as a sitting tenant/occupant of the flat in issue,
he should have been afforded the first option to purchase it. The
lower court had ruled in his favour, holding that the sale of the flat
in question to a third party was null and void. The complainant’s
claim was based on conditions of service he enjoyed as an employee of a
subsidiary company of ZIMCO.
The liquidators appealed on the grounds that the Industrial Relations
Court had no jurisdiction to handle the dispute. After reviewing
the provisions of sections 85(2) and 108 of the Industrial and Labour Relations
Act, the Supreme Court ruled that the Industrial Relations Court’s jurisdiction
is limited to settling labour disputes falling under the Act. It
has no jurisdiction in conveyancing matters such as impugning of certificate
of land which must be brought before the High Court.
EVIDENCE – FINDINGS OF FACT – WHEN APPEALABLE
EMPLOYMENT – VICARIOUS LIABILITY PROOF OF
GDC Hauliers (Z) Ltd v. Trans-Carriers Ltd, SCZ Judgment No. 7 of 2001
(unreported).
The appellants were found to be vicariously liable for the indisputable
negligence of their employee who caused an accident on the Ndola/Kitwe
dual carriageway. The appellants sought to avoid all liability by
pleading that the employee who was engaged as a clerk was not authorised
to drive the truck and was neither engaged on the business of the employer
nor in the course of his employment when he got involved in the accident.
On appeal, the Supreme Court held that there was no basis for upsetting
the finding of fact or viva voce evidence as the same shall not be lightly
interfered with by an appellate court which did not see and hear the witnesses
first hand.
The court therefore concluded that when there is credible evidence
that an employee was actually authorised to perform tasks, such as driving
fellow workers, which would ordinarily not be associated with his designation
or job title, such evidence cannot be ignored and will support a finding
of vicarious liability if the worker was engaged on his employer’s business.
CIVIL PROCEDURE – APPEALS – JUDICIAL REVIEW – PROCEDURE UNDER THE
LANDS AND DEEDS
REGISTRY ACT, CIVIL PROCEDURE – RIGHT TO BE HEARD – MEANING OF
New Plast Industries v. the Commissioner of Lands and the Attorney-General,
SCZ Judgment No. 8 of 2001 (unreported).
The appellant had obtained leave to apply for judicial review against a
decision of the Acting Chief Registrar of Lands and Deeds canceling certain
entries in the register which had the effect of reverting ownership in
property No. Lus/2758/A to a Ms Sandra Nayame who had been sued together
with the respondents. The appellant sought orders of certiorari,
mandamus, declaration and damages. The Registrar’s action stemmed
from an allegation by Ms Nayame that the transfer of the property from
herself to the appellant was procured fraudulently. Before the hearing
of the application on substantive issues, the respondent raised a preliminary
issue relating to the procedure under section 87 of the Lands and Deeds
Registry Act, and questioning the propriety of commencing an action by
way of judicial review.
The High Court dismissed the appeal on the grounds that the appellant
had adopted an irregular and erroneous procedure. On further appeal,
the Supreme Court held that the mode of commencement of any action is generally
provided by the relevant statute and does not largely depend on the relief
sought. Thus, where a statute provides for the procedure of commencing
an action, a party has no option but to abide by that procedure.
The procedure provided under the Lands and Deeds Registry Act is an appeal.
Where an action under the Lands and Deeds Act is brought to the High Court
by means of judicial review when it should have been brought by appeal,
the court had no jurisdiction to grant the remedies sought.
With regard to the alternative claim that the parties were not afforded
a hearing, the Supreme Court held that the content of what amounts to a
hearing of the parties in any proceedings can take either the form of oral
or written evidence. This depends on the nature of the application
where the evidence in support of an application is by way of affidavit,
and the deponent cannot be heard to say that he was denied the right to
a hearing simply because he did not adduce oral evidence.
CONTRACT – NON-PERFORMANCE – INABILITY OF VENDOR TO MAKE GOOD TITLE
Audrey Wafwa Gondwe v. Supa Baking Company Limited and V.U. Akubat, SCZ
Judgment No. 9 of 2001 (unreported).
The appellant sought to purchase her half of a semi-detached house which
she occupied by virtue of her employment and which was offered to her by
the liquidators of the respondent. Unbeknown to her, the house had,
at the time the offer was made and accepted, been sold by the Zambia Privatisation
Agency to the second respondent who had responded to an advert and was
a bonafide purchaser for value.
The Court held that the second respondent could not be deprived of
his property. The Court determined not to allow the rule in Bain
and Others v. Fothergill and Others [1874-1880] All ER rep. 83, which provided
that where the non-performance of a contract resulted from the vendors
inability to make good a title, the purchaser could not recover damages
for loss of the bargain but only damages limited to expenses incurred by
the purchaser in investigating title, to apply. The rule cannot apply
where the vendor has voluntarily caused his own inability.
The court therefore allowed the appeal and ordered damages for breach
of contract on the footing of damages for loss of the bargain.
CIVIL PROCEDURE – INTEREST RATES PAYABLE – MONEY SEIZED BY ZRA
Zambia Revenue Authority v. Jayesh Shah, SCZ Judgment No. 10 of 2001 (unreported).
The appellants were required by judgment of the High Court to refund to
the respondent a sum of US $488,867.67, balance, after tax assessed on
money held in a dollar denominated bank account which was initially seized
by the Drug Enforcement Commissioner and later taken by the appellants.
Costs in that case were also agreed at US $12,221.69. The trial judge
awarded interest at the ‘dollar deposit rate’ from the time of appropriation
of the account to the date of judgment. Thereafter, the judgment
was to attract statutory interest. These rates of interest were understood
differently by the parties to the case leading to a dispute as to the amounts
payable and the exchange rate applicable.
On appeal, the Supreme Court held that it is advisable for the trial
court to ascertain and award specific rates of interest instead of leaving
it to the judgment creditor to do so, and perhaps to do so on disputable
advice from some of the financial institutions in the country. The
trial court should have conducted an enquiry to ascertain what is a fair
average rate of interest on dollar deposits in an interest bearing account.
Based on its own assessment, the Supreme Court ruled such fair rate to
be 10 per cent. In addition, the court ruled that a payment into
court does not put the sum awarded into the hands of the creditors; therefore,
the exchange rate applicable would be that at the point at which the creditors
actually took the money out of court.
CONTRACT – AGENCY – REFUND OF TAXES
COLLECTED BY THE AGENT BUT NOT
TRANSMITTED TO THE PRINCIPAL –
RESPONSIBILITY OF THE PRINCIPAL
Zambia Revenue Authority v. Hitech Trading Company Ltd, SCZ Judgment No.
13 of 2001 (unreported).
The issue on appeal was whether the appellant was liable for K948,301,742.71
in tax refunds due to the respondent. It was on record that the appellant
had instructed the First Merchant Bank to debit the accounts of the
respondent. The Bank had acted on the instructions but became insolvent
before it had transmitted the monies to the appellant.
The Court found that there was no dispute as to the rules of agency
regarding the responsibility of the principal for the acts of his agent.
Therefore, the appellant could not succeed on the arguments of insolvency
and non-receipt of the money The appeal was dismissed with costs.
CONTRACT – ILLEGALITY OF – FACTORS TO BE TAKEN INTO CONSIDERATION
Mohammed S. Itowala v. Variety Bureau de Change, SCZ Judgment No. 15 of
2001 (unreported).
The appellant sought to recover K24 million paid to the respondent in an
attempt to purchase US $10,000. The respondent had succeeded in refusing
to make the refund in the lower court on the grounds that the transaction
was illegal because of Bank of Zambia regulations which did not allow any
transaction of more than US $5,000 to be conducted by bureaux de change.
The court ruled that this was not a case which was covered by the maxim
ex turpi causa non oritur action and upheld the appellant’s entitlement
to a refund.
LICENSING – THE TOURISM ACT – EXEMPTIONS – WHEN AVAILABLE
New Fairmount Hotel v. Zambia National Tourist Board, SCZ Judgment No.
16 of 2001 (unreported).
The issue was whether a hotel which was already in existence and accustomed
to running a discotheque at the time when the Tourism Act, Cap. 155 came
into force was required to obtain a separate authorisation or licence to
operate the discotheque. In an effort to resist the obtaining of
a licence, the appellant launched proceedings for certiarori to quash the
demand for a licence and for a declaration permitting it to run the discotheque
without a licence. The learned trial judge dismissed the action and
was upheld by the Supreme Court on appeal.
COURTS QUORUM – DEATH OF ONE JUDGE BEFORE JUDGMENT – WHETHER REMAINING
TWO JUDGES CAN DELIVER A MAJORITY OPINION
Motor Holdings (Z) Ltd v. Raj Raman, SCZ Judgment No. 17 of 2001 (unreported).
The judgment is a ruling on a motion moved by the respondent and denied
by the court. A panel of three judges heard the appeal in the case,
but one judge died before judgment was delivered. The respondent
sought a rehearing of the case under rule 78 alleging unspecified accidental
slips or omissions. At the hearing he abandoned that line of argument
arguing that the two judges remaining on the case lacked the necessary
quorum and jurisdiction to render a judgment by majority.
The court ruled that in the event of the death of a judge who was one
of the three members of an appellate court which heard a case, a rehearing
must take place only if the remaining two do not agree and hence there
is a deadlock. If the remaining two agree, they constitute the majority
and their decision is the decision of the quorum.
TORT – NEGLIGENCE – DUTY OF CARE – WHETHER ZESCO ACCOUNTABLE FOR
DAMAGE DUE TO POWER FAILURE
Victor Namakando Zaza v. Zambia Electricity Supply Corporation Ltd., SCZ
Judgment No. 18 of 2001 (unreported).
On 2 September 1996, there was a power failure during which two of the
three phases supplying power to the appellant experienced on outage.
The appellant’s submersible water pump got damaged. He had to spend
K450,000 in repair costs. He was inconvenienced and had to fetch
water for domestic use from a neighbour. His tomato and onion crops
dried up. He attributed his losses to the negligence of the respondents
in not ensuring that when their fuse tripped, all three phases shut off
instead of one phase continuing to supply low voltage which damaged the
water pump whose motor got burnt.
The defence was that there was an unforseable failure of the equipment.
The learned trial judge held that the respondent did not breach its duty
of care and was not negligent. The appeal was dismissed on the grounds
that it is unrealistic to expect the supplier of power to guarantee that
it will never fail nor fluctuate. Therefore, the customer has a correlative
duty to take
precautionary measures in the form of surge protectors.
CONTRACT – DEFENCES – MISTAKE – RELEVANCE OF FINDINGS OF FACT
ANI Engineering Enterprises Ltd. and Atlanta Engineering Services Ltd v.
New Capital Bank Plc, SCZ Judgment No. 12 of 2001 (unreported)
The appellant launched proceedings to recover a sum of K58 million held
by the respondent to recover overpayments in interest claimed to have been
fraudulently made. The appellants denied any wrongdoing and argued
that the overpayments were at the most a mistake and could not be recovered
by the bank on the principle of unjust enrichment.
The trial court found evidence of fraud and was upheld by the appellate
court which dismissed the appeal on the grounds that the trial court’s
findings of fact were justified and precluded the possibility of non-recovery
of the interest paid by the bank because the customer had altered his position
on the assumption that the overpayment was legitimate.
CONTRACT – ACCRUED RIGHTS
Jacob Nyoni v. Attorney-General, SCZ Judgment No. 11 of 2001 (unreported).
This case involved the law of contract as it relates to contractual agreements
between employers and employees. It also involved the concept of
‘accrued rights’ of an individual. The basic question for determination
was: does an accrued contractual right conferred on an individual person
by a written law that has been repealed by another written law survive
the repeal? The Supreme Court of Zambia, in deciding this matter,
answered this question in the affirmative.
The appellant, Jacob Nyoni, who was the plaintiff at the trial stage
of the matter, had joined the Zambian Civil Service in the colonial period,
on 1 August 1956, when the retirement age was fifty-five years for male
employees and fifty years for female employees. In 1961 a new law
was enacted which introduced alternative retirement rules known as the
Civil Service (Local Conditions) Pensions Act, 1961.
This new law raised the retiring age from fifty-five
years to sixty years for male civil servants and from fifty years to fifty-five
years for female civil servants. Each employee engaged before this
enactment, was given the option of either retaining the pre-1961 lower
retiring age or adopting the new higher retiring age.
The appellant, who was a male civil servant, elected to irrevocably
adopt the new higher retirement age of sixty years. Twenty-five years
later, in 1986, another law was enacted, titled ‘The Civil Service
(Local Conditions) Pensions (Amendment) Act 1986’, which
repealed the 1961 law and
unilaterally reversed the retirement ages introduced by the 1961 law
to ‘those’ of the colonial period, namely, fifty years for women and fifty-five
years for men. This 1986 change was unilateral in the sense
that the employees this time around were not offered the option of either
retaining the higher retirement age or reverting to the old lower age.
In 1990, after serving in the civil service for thity-four years, the
appellant was retired when he attained the age of fifty-five years.
The legal effect of the repeal of the 1961 law by the 1986 law was the
subject of argument in the case, both at the trial and appeal stages.
Counsel for the appellant contended that the repeal did not affect
the appellant’s entrenched right to retire at the age of sixty years conferred
on him by the 1961 law. He argued that an accrued right could
only lapse as a result of a repeal if the repealing law expressly abrogates
the accrued right. He added that since the 1986 Act did not contain
provisions abrogating the appellant’s right to maintain the sixty years
retirement age, his right survived the repeal.
Counsel for the respondent argued in response, that a retirement age
was not a common law or basic right which would survive a repeal
by Parliament, not withstanding the absence of express provisions abrogating
it.
At the trial in the High Court, the Judge dismissed the appellant’s
action on the ground that the option conferred on appellant to retire at
the age of sixty years instead of fifty-five years was a mere privilege
which lapsed as a result of the repeal in 1986. In allowing the appeal,
the Supreme Court reiterated its earlier position, taken in the case of
Godfrey Miyanda v. The Attorney-General (1985) ZR 185, that accrued rights
were saved by a repealing law if the repealing law does not expressly state
their repeal. The court ruled that the appellant’s retirement at
the age of fifty-five years was pre-mature because his right to retire
at the age of sixty years was saved by the 1986 Act which repealed
the 1961 Act.
The court also relied on section 14 (3) (c) of the Interpretation and
General Provisions Act, Cap. 2, which provides thus: 14 (3) Where
a written law repeals in whole or in part any other written law, the repeal
shall not–
(c) affect any right, privilege, obligation or liability acquired,
accrued
or incurred under any written law so repealed.
AGENCY – DISCLOSURE OF PRINCIPAL
Zambia Revenue Authority v. Hitech Trading Company Ltd, SCZ Judgment No.
13 of 2001 (unreported).
The main argument in this matter centred on the question of whether a principal
was liable to a third party for the act of an agent who had a valid authority
from the principal but acted negligently or fraudulently. The Supreme
Court of Zambia, on 27 September 2000, held that the fraudulent or negligent
act of an agent did not divest the principal of his liability to the third
party.
The appellant, Zambia Revenue Authority, on 22 January 1998, appointed
First Merchant Bank (Zambia) Limited as its agent, and instructed
it to collect money on its behalf, from the respondent, Hitech Trading
Company Limited. The respondent company maintained two accounts at
the First Merchant Bank.
In the course of carrying out its agency duty, the Bank wrongfully
debited the respondent’s two accounts with the sum of K948,301,741.71,
and did not remit it to its principal, the Zambia Revenue Authority.
At the trial, Hitech Trading Company, i.e., the respondent, demanded a
refund of its money from the appellant. The appellant denied liability
to refund the money wrongfully debited from the respondents’ account by
its agent. The appellant argued that it could not refund the money
because it had not received it from its agent.
The trial court decided the matter in favour of the respondent, ordering
the appellant, the Zambia Revenue Authority, to refund to the respondent
the money being claimed. Although it admitted the existence of a
contract of agency between it and the First Merchant Bank, the appellant
was not satisfied with the decision of the trial court that it was liable
to a third party for an act done wrongly by its agent. It appealed
to the Supreme Court.
The Supreme Court decided the appeal in favour of the respondent,
i.e., upholding the decision of the trial court and dismissing the appeal.
The court relied on a rule in the law of agency which states that
when a person is an agent of a named principal, any third party dealing
with that agent is entitled to assume that there is no defect in the agency
agreement between the principal and his agent and that all the actions
of the agent bind his principal.
It rejected the appellant’s bid to be protected by section 84 (2) of
the Income Tax, cap 323, which exonerates a principal in deserving
circumstances.
Margaret M. Munalula
K. C. Chanda
University of Zambia
School of Law |
