IN THE HIGH COURT FOR ZAMBIA 2021/HKC/018

AT THE DISTRICT REGISTRY

HOLDEN AT KITWE

(Commercial Division)

Between:

INDE CREDIT COMPANY LIMITED PLAINTIFF

6 And

GREEN PARK TRANSPORT AND CONTRACTORS LIMITED 1sr DEFENDANT

REJI ANTHONY 2ND DEFENDANT

PRAJAM RESY MANNEMPLAVAN 3RD DEFENDANT

Before Hon. Lady Justice Abha Patel, S.C.

For the Plaintiff: Mr. Y. S. Simukonda

Messrs Noel Simwanza LP.

-- ·- ·. ....
For the Defendant: Mr. Mwalichenga • t : ...

.,.. .

Messrs James & Doris L. P.

' • • . • I •: 1•_::__,.,- ,

JUDGMENT

List of Authorities

1. Patrick Matibini, Zambian Civil Procedure, Commentary and Cases Lexis Nexis.

I
I
I pg. 1
I
, _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __J
 2. Chitty on Contract, The Law of Contracts, Specific Contracts 30th Edition Volume II London,
Sweet & Maxwell, 2008.

3. Chitty on Contract, The Law of Contracts, General Principles, 29th Edition Volume I, London,
Sweet & Maxwell, 2004.

4. Phipson on Evidence, 17th Edition Page 151.

5. The High Court Act Chapter 27 of the Laws of Zambia.

6. The Rules of The Supreme Court Practice 1999 Edition.

7. Sale of Goods Act 1893.

Cases Referred to:

1. BJ Poultry Farms Limited vs Nutri Feeds Zambia Limited SCZ Judgment No. 3 of 2016.

2. Colgate Palmolive Zambia Limited vs Able Shemu Chuka SCZ 181 of 2005.

3. Tijem Enterprises Lim ited vs Children International Zambia Limited 2010/HPC/0121.

4. Zambia Railways vs Pauline S. Mundia and Another (2008) Z.R 287 Vol. 1.

5. Wilson Masauso Zulu v Avondale Housing Project (1982) Z.R 172 (SC).

6. Nat iona l Drug Company Lim ited and Zambia Privatisation Agency vs Mary Katongo Appeal
No. 79/2001;

7. Rosemary Ngorima and 10 others vs Zambia Consolidated Copper Mines Appeal No. 97 of
2000;

8. Clement Chuuya and Hilda Chuuya vs J.J. Hankwenda SCZ Judgment No. 3 of 2002

9. Printing and Numerical Registering Company vs Simpson (1875) LR 19 EQ 462

10. Sylvester Musonda Shipolo vs Shadreck Maipambe Appeal No. 1/2016 (SCZ)

2021/H KC/018 J21 Page

 1. Introduction and Background

1. The Applicant commenced this action on 5th May 2020 by way of

Originating Summons typically filed under the provisions of Order 30 rule

14 of the Rules of the High Court Chapter 27 of the Laws of Zambia as read
with Order 88 of the Rules of the Supreme Court Practice (1999) Edition.

This was accompanied with an Affidavit in Support of even date.

1.1 The originating process was amended with leave of court and the amended

process filed on 15 June 2021 seeking the following reliefs:

i. Payment of USD207,412.12 by the 1st, 2nd and 3rd Respondents to the

Applicant, being money due under a Term Loan Facility executed between

the Applicant and 1st Respondent;

ii. Delivery and possession of the mortgaged property Stand No.4808 and

4768 Independence Avenue, Town Centre, Solwezi in North-Western

Province of the Republic of Zambia;

iii. Foreclosure and sale of the mortgaged property Stand No.4808 and 4768

Independence Avenue, Town Centre, Solwezi in North-Western Province of

the Republic of Zambia;

iv. Sale and/or eligit powers in respect of earth moving equipment namely a

JCB 3DX supper backhoe loader and JCB JS205LC tracked excavator placed

as security for a term loan facility between the Applicant and 1 st

Respondent;

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 v. Any other relief that the court deems fit;

vi. Interest, and

vii. Costs.

1.2 By a series of interlocutory applications, the hearing of the Originating

summons was adjourned on account of both parties for reasons ranging

from Covid to that of clients being out of jurisdiction, all of which are on
record and will not be repeated by the Court, save to note that the

Respondents filed their Affidavit in Opposition on 18th August 2021 and also

raised an issue calling for the matter to be dismissed for want of

jurisdiction, and in the alternative, seeking an order to deem the matter

commenced by Writ of Summons for reasons deposed in the supporting
Affidavit sworn by one Reji Anthony, the 2nd Respondent for himself, and

on behalf of the 1st and 3rd Respondents. The said application was
supported by skeleton arguments of even date. (hereinafter referred to as

,, the Respondents' application).

1.3 Again, for reasons which are on record, the Respondents application was

not heard on the scheduled return date of pt September 2021, pushing the

hearing of the application to after the conclusion of the election petitions

period.

1.4 Counsel for the Applicant opposed the Respondents' application by its

Affidavit in opposition and skeleton arguments file don 24 November 2021

2021/HKC/018 J41 Page

 to which the Respondents filed their Affidavit in Reply and skeleton

arguments in reply dated 6th December 2021.

1.5 The Respondents' application was heard on 6th December 2021, and there

being a notice of hearing issued by the Court, the matter proceeded despite

the non-appearance of Applicant Counsel for the applicant. In the preserve of

case management, and noting the serious issues in contention, the Court

issued an extempore Ruling ordering the matter to continue as if commenced

by Writ in accordance with Order 28 rule 8 of the Rules of the Supreme Court.

The Parties will henceforth be referred to as Plaintiff and Defendants.

1.6 The Court did at the Scheduling Conference of 20th January 2022 issue its
Orders for Directions and the matter proceeded to Trial on 22 June 2022.

2. The Plaintiff's claim

2.1 As noted from the introduction, the Affidavit in support of Originating

Summons served as the Plaintiffs Statement of Claim. It is pleaded that the

Defendants applied for a Term Loan Facility, in the sum of USO 228,520.00

on or about 30 February 2020 (hereinafter referred to as the Joan amount.)

A copy of the Facility Letter was marked 'P.8.1 1 and appeared in its Bundle

of Documents at pages 1 to 12. (hereinafter referred to as the Joan facility

letter.)

2.2 It was the Plaintiff's claim that the said loan was to be repaid in monthly

instalments of USD 17,279.00 and that interest was payable at 1.9% and

2.5% on the outstanding amounts.

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 2.3 That the loan was to finance the acquisition of Earth Moving Equipment

namely a JCB 3DX Super Backhoe Loader and JCB JS205LC Tracked

Excavator, payable from receivables from a named third party and or any

other resources due to the Defendants. The 1st Defendant's Board

Resolution to authorise this borrowing was exhibited and marked "PB2''

and appeared at page 13 of its bundle of documents. (hereinafter referred

to as the two pieces of earth moving equipment.)

2.4 The two pieces of earth moving equipment were pledged as security for

4t the loan and marked "PB3" and at page 14 of the Plaintiff's bundle is a
copy of the pre-executed Agreement of Sale in the sum of USO 328,301.00.

(hereinafter referred to as the sale value for the two pieces of earth moving
equipment).

2.5 That the loan was further secured by the deposit of Certificate of Title to

Stand 4808 and 4768 Solwezi. The Plaintiff referred to exhibits marked "PB

4,5 & 6" and at pages 16 to 28 of the Plaintiff's bundle, being the Security
Agreement and copies of the Title Deeds of the 2 properties respectively.
(hereinafter referred to as the two landed properties).

11
2.6 Marked and produced "PB7,8 & 9 and at pages 28 to 32 of the Plaintiff's

bundle, are copies of the Letter of Undertaking to execute a legal mortgage

and the Letter of Guarantee respectively.

3. Defence and Counterclaim

3.1 The gist of the defendants' defence is that it did not dispute the contents of

paragraph 4 of the Plaintiff's Affidavit. (the importance of this admission

will be addressed later in my Judgment).

2021/HKC/018 J61P age

r 3.2 The Defendants have pleaded that the rate of interest to be applied to the

outstanding balance was agreed at 1.9% and that the rate of 2.5% was to

apply at the end of the agreed loan period.

3.3 It was the defence that the monthly repayment plan was subject to the

monthly invoicing that the 1st defendant enjoyed with a company called

Buks Haulage Limited.

- 3.4 In response to the pledging of the two landed properties, the defendant
has averred that the properties were not incorporated in the loan facility
letter and was superseded by a sale agreement signed by the Parties on 6
October 2020.

3.5 The defendant also denied the Plaintiffs claims of exclusive rights over the
two landed properties and has maintained that the sale agreement

executed later in t ime replaced the facility letter.

e 3.6 The Defendant maintains that there was no default as at the

commencement of this action as the period for the repayment was up to

September 2021.

3.7 The defendants have also challenged the computation of the loan amount

and seeks an order of assessment to correctly assess the dues.

3.8 The defendant has also alleged that the Plaintiff seized the two pieces of

2021/HKC/018 J71 Page

 earth moving equipment

3.9 The defendant has also alleged that the Plaintiff seized the JCB 3DX Supper

Backhoe Loader for its own business and at a time when the 1st defendant

had a running contract with Siltekk Limited in the sum of KB,000.00 per day

and hence its counterclaim in the sum of Kl,520,000 being loss of revenue

for 190 days (hereinafter referred to as the counterclaim.}

e 3.10 It is the defendants defence that pursuant to a sale agreement, the two
.pieces of earth moving equipment were valued at USD328,301.00 which is
due from the Plaintiff to the pt defendant as at 6th September 2021, after

which ownership in the equipment was to pass to the Plaintiff.

3.11 In its counterclaim the pt Defendant seeks payment of the sum of

Kl,520,000 as pleaded above and the sum of USD 328,301.00 being the
purchase price as afore stated.

9 3.12 The record will reflect that the Plaintiff filed its Reply and defence to

counterclaim.

4. Issues for determination by the Court

4.1 From the Affidavit evidence of the plaintiff and the defence and

counterclaim settled by the Defendant, it is trite that the Court must

identify the issues for it to resolve in this matter. I note that the parties not

having agreed on issues for determination, the plaintiff filed its list of issues

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r
on 25 th March 2022. Having analysed the matter at hand, and at the end of

trial, the issues that require the Courts determination are the following:

i. What was the amount borrowed under the Term Loan Facility?

ii. What was the date of execution of the Term Loan Facility?

iii. What was the nature of the Agreement to sell earth moving

equipment executed between the Parties?

iv. Was there a mortgage created over Stand 4808 and 4768 Solwezi in
favour of the Plaintiff such that it is entitled to an Order of Delivery,

possession, foreclosure and sale for recovery of the amounts due to

it by the Defendants?

v. Has the Defendant succeeded in its counterclaim in the sum of

Kl,520,000.00 being in respect of lost income and whether the
Defendant is entitled to the sum of USD 328,301.00 being the un-

paid purchase price for the two pieces of earth moving equipment?

5. The evidence of the Parties

5.1 The Plaintiff led evidence through one Chipasula Chisanga, in his capacity

as Senior Relationship Manager of the Plaintiff Company and relied on his

Witness Statement of 14th March 2022 and the Plaintiff's bundle of

documents filed into Court on 3rd March 2022 respectively.

5.2 The contents of the Plaintiffs witness statement are on record and is

principally a repetition of the Plaintiff's amended Affidavit in Support filed

2021/HKC/018 J91Pag e
 in these proceedings on 15th June 2021 and which has been narrated in

paragraph 2 above.

nd
5.3 The defendant relied on the Witness Statement of Reji Antony, the 2
th
Defendant on behalf of himself and the other Defendants of 14 March

2022 and its bundle of documents of 3rd March 2022. The essence of his

evidence has been stated at paragraph 3 above.

6. The submissions

6.1 The submissions of the Parties having been filed, at the end of the Trial, and
on 6 July 2022 and 26 th July 2022 respectively, are on record, and have
been duly considered by the Court. The same will not be restated here,

save for emphasis where necessary, save to thank Counsels for their
diligence and industry, as they have assisted the Court in arriving at its
Judgment.

7. Documents in casu

7.1 I am of the considered view that before I embark on analysing the facts, the
evidence, the law as well as the supporting skeleton arguments and

submissions filed by Counsels, I will proceed to make reference to salient

documents, the subject of this action and thereafter make findings of facts,

for clarity of Judgment and to prevent repetition.

2021/H KC/018 J 10 I P age

 7.2 The 1st Defendant obtained a term loan facility from the Plaintiff in the sum

of USD228,520.00. This is set out on pages 1 to 12 and pages 2 to 13 in the

bundles of the Parties respectively.

7.3 The Term loan Facility is dated 30 February 2020, each page having been

initialled and signed by the Parties.

7.4 Extracts of the Board Resolution of the 1st Defendant dated 13 February

2020 which is produced at page 13/14 of the Plaintiff's bundle of

documents.

7.5 Agreement to sell personal property relating to the two _pieces of earth
moving equipment produced at pages 15 in both bundles of documents
respectively.

7.6 Security Agreement for the deposit of Certificates of Titles relating to Stand

4808 and 4768 Solwezi dated 24 February 2020 and produced at page
16/17 of the Plaintiffs bundle of documents. Also produced at pages 18/27
are copies of the Title Deeds for the aforementioned properties.

7.7 Letter of Undertaking to execute a legal mortgage and a Third-Party

Mortgage between the Plaintiff and the 2nd Defendant is produced at pages

28/30 and at page 1 of the bundles of documents respectively.

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f 7

7.8 Letter of Guarantee executed by the 2nd and 3rd Defendants relating to the

term loan facility is produced at pages 31/32 of the Plaintiff's bundle of

documents.

7.9 Schedules of transaction history between the Parties produced at pages

33/36 of the Plaintiff's bundles of documents.

7.10 Contract between the 1st defendant and Siltek produced at pages 18/20 of

the defendants bundles of documents.

8. Findings of Facts

8.1 From the evidence of the Parties, the documents produced and
submissions of counsels respectively, the following are findings of facts in
casu:

8.2 The Parties executed a Term Loan Facility in the sum of USD 228,520.00.

Much ado was made by defence counsel in his attempt to convince the
court that the date of execution of the term loan facility being 30 February
2020, a date which is non-existent, brought into issue the validity of the

Agreement itself. Having considered the argument, I find this to be a self-

defeating exercise, as the defendants in paragraph 6 of their defence,

categorically admit the contents of paragraph 6 of the Plaintiffs Affidavit in

Support, and in several places and documents placed before the Court

accept that the 1st Defendant obtained a term loan from the Plaintiff in the

sum of USO 228,520.00.

2021/HKC/018 J 12 I P age

\ .
r
A clear example of this is the document marked "PB2 l"annexed to the
Plaintiff's Affidavit in Support and being a copy of the Resolution passed by
nd rd
the Board of Directors of the pt Defendant, and attended by the 2 and 3

Defendant, dated 13th February 2020, approving the loan from the Plaintiff

to acquire the two pieces of equipment. I note also that there is

confirmation of the amount of the facility being the sum of USO

228,520.00. I therefore find that other than a clerical error in the date of

the term loan agreement, it was an agreement entered into and accepted

by both parties.

8.3 I also note that the two landed properties Stand 4808 and 4768 Solwezi,
were pledged as collateral for the term loan. This is evidenced by the

document referred to above as well as extracts of the board resolution

from the same meeting of directors as above and marked "PB2 (2) 0 and
received by Cavmont Bank Solwezi Branch, on 13 February 2020, the terms
of which show clear intention of clearing the indebtedness of the pt
defendant with Cavmont Bank so as to offer the same properties as

- additional collateral to the Plaintiff. These documents appear as annexures

to the supporting affidavit filed on 15th June 2021 and also appear in the
Plaintiffs Bundles, the contents of which were admitted by the 2nd

Defendant. Any attempts by the Defendants to disassociate themselves

from this finding are rejected as being against the weight of evidence

before the court.

8.4 The two pieces of equipment that were acquired by the term loan are

namely:

2021/HKC/018 J131P age

 JCB 3DX Supper Backhoe Loader 2019 model and

JCB JS205LC Tracked Excavator 2019 model

9. The Law

9.1 In my considered opinion, the legal principles that are being canvassed by

the Parties respectively, largely focus on the law of contract and the sale of

goods. I will begin by analysing the Plaintiff's first claim as identified in

paragraph 1.li above and consider whether the Plaintiff is entitled to

payment in the sum of USO 207,412.12 being money due under a term loan

facility executed between the Parties.

9.2 It is trite and the law is clear with regards the burden of proof in civil
matters. The law guides that where such burden is not discharged to the
satisfaction of the Court, the Party claiming is not entitled to its claims,

even in the face of a failed defence.

~ 9.3 I am alive to the statement of the Supreme Court in the cases of B.J.
Poultry Farms Limited vs Nutrl Feeds Zambia Limited and Zambia Railways

vs Pauline S Mundia, which cases have affirmed, time and time again, the

above principle on the burden to be discharged by the Plaintiff. I will accept

this in its totality, as there really is no need for the Court to reinvent the

wheel on this principle.

9.4 The defendant has submitted that the Plaintiff having failed to defend the

counterclaim as required by Order Lill rule 6 (2-5} of the High Court Rules,

2021/HKC/018 J 14 I Page
r

as amended by S.I. No. 27 of 2012, the Court is invited to enter Judgment

on Admission for the Defendant on the counterclaim. I have noted the

submissions of counsel on this issue as well as attempts of Counsel to

submit on pertinent sections of the Sale of Goods Act 1893 to persuade the

Court that the Plaintiff is obliged to pay for the two pieces of equipment at

the agreed value of USD328,301.00 being the purchase price agreed in

writing and on 6th October 2020, which according to defence counsel was a
new agreement entered into and which varied the Term Loan Facility of

e February 2020. This has been pleaded in paragraph 9 of the defence.

9.5 The Plaintiff has submitted on the law governing contracts by stating that
Parties are bound by the terms and conditions upon which they have
agreed. They have relied on the case of Tijem Enterprises Limited vs
Children International Zambia Limited in which case, Hon J Mutuna, as he

then was, quoted as follow:

"If there is one thing more than another which public policy requires, it is
that men of full age and competent understanding shall have the utmost
liberty in contracting and that their contract when entered into freely and
voluntarily shall be enforced by the Courts ofJustice".

9.6 It is the thrust of the Plaintiff's submission that clause 5 of the term loan

facility listed the security required for the amounts advanced. Counsel

referred the Court to documents marked collectively from pages 16 to 27 of

and 28 to 30 in its Bundle of Documents. What is evident to the Court, is

the pattern that emerges, of the Plaintiff obtaining executed documents to

2021/HKC/018 J 15 I Page
 support the lending under the term loan and in fulfilment of the conditions

under clause 5.

9.7 It is cardinal to note that as the transaction unfolded between the Parties,

and as default was made by the Defendants in servicing the monthly loan

instalments, the Plaintiff resorted to self-help measures while the

Defendants attempted to read into documents clauses that are not

supported by the weight of evidence. It was the defendant's submission

that the letter of sale, entitled 'Agreement to Sell Personal Propertyn which

appears at page 16 of the Defendants bundle of documents, had the effect

of altering the conditions of the term loan agreement.

A close scrutiny of this Agreement cannot be further from the truth. It is

apparent that this document was not executed by the Defendant, and the

defendant's witness admitted this under cross examination. As per the

pattern that appears consistent, this was another document prepared by
the Plaintiff, executed and hand-dated on 24 February 2020, though the

,e typed date on the document is 6th October 2020. The sale value of the two
pieces of land is USD 328,301.00 and title was supposed to pass on 6th June

2021. I therefore find that this document does not aid the case of the

Defendant at all, as the two properties were already offered as collateral in

accordance with clause 5 of the term loan facility.

9.8 My attention has also been drawn to the document at page 15 of the

Defendants bundle of documents marked "Agreement to Sell Personal

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f

Property" which appears to be an agreement for the sale of the two pieces
of equipment at an agreed value of USO 328,301.00

This Agreement, is hand dated 30 February 2020, was executed by the

Parties, though type dated 6th October 2020 and agreeing to transfer title of

the properties in 'an as is' condition on 6th September 2021.

9.9 From the evidence led by the Parties, the 2nd defendant appeared not to

understand the transaction that he had entered into with the Plaintiff. He

appeared to be a witness of limited understanding who admitted the

contents of all the documents shown to him and which are on record. He

did little, if at all, to aid his defence.

9.10 It is obvious that of the two Parties, the Plaintiff was in the stronger

position being the one that authored all the documents, and the
Defendants simply signed them, with little or no understanding of what

they/he were being called upon to execute. It is obvious too that despite all

the shenanigans at play, and the attempt by the parties to muddy the
waters, the term loan facility has not been challenged.

However, as has been stated and it is trite that Parties must discharge the

burden placed on them, I will address only two issues that are pertinent in

casu.

9.11 What is the amount due and outstanding to the Plaintiff?

2021/HK(j0lS J 17 I Page
 Is it the sum of USO 207, 412.12 claimed in the Originating Process?
Is it the sum of USO 87,049.05 being the residual balance outstanding at

the conclusion of the trial and having seized and sold the two pieces of

equipment.

9.12 Upon answering the question above, is the Plaintiff entitled to its

successive orders as prayed and foreclose on the properties offered as

collateral for the term loan facility?

9.13 I will then consider the Defendants counterclaim in the sum of

Kl,520,000.00 being the value of lost income and the sum of

USD328,301.00 being the purchase price for the two pieces of equipment.

10. Analysis of the law and facts

10.1 As has been noted above, the burden of proof is on the party alleging. Am I
satisfied that the Plaintiff is owed the sum of USO 87,049.05? I have

scrutinised the statements in the Plaintiffs bundle at pages 33 to 35. One

relates to Loan Id: 51138 and is a Kwacha Invoice Discount Facility and the
one appearing at page 35 Loan Id : 50889 is dated 31 December 2021 and

shows the balance due in the sum of USO 87,049.05. The Plaintiff's witness
was also shown a statement on page 14 of the defendants bundle which

confirmed that the amount outstanding at 31 August 2021 under Loan Id

50889 was the sum of USO 172,933.12.

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r
From the jumbled evidence of the Plaintiffs witness, it appears that the two

entries on 31 November 2021 and 1st December 2021 under the description

'part payment' may relate to the sale value of the two seized pieces of
equipment. However, this may appear to be speculation on the part of the

Court, as the evidence did not bring this out, nor does the Witness

Statement of the Plaintiff confirm this.

10.2 The Court must express its displeasure in the manner.the Plaintiff appears

to have repossessed these properties and after the commencement of the

action. There was no Order by the Court authorising the seizure nor was

there any agreement between the Parties. The Plaintiff in its originating

process seeks an Order of Sale and or Elegit Powers in respect of the

equipment.

Order 42 rule 3 of the High Court Rules is instructive and provides that

execution of a Judgment by way of a Writ of Elegit can only be done if the

execution by a Writ of Fieri Facias has failed. This of course requires that

Judgment must have been obtained, as a starting point. In the

circumstances in casu, no matter the fact of the defendant having left

Jurisdiction and or the earth moving equipment having been abandoned, all

of which allegations were not proved to the required standard, the Court

condemns the action of the Plaintiff in resorting to self-help measures,

when it was open to the Plaintiff to seek the necessary interim orders from

the Court.

2021/HKC/018 J 19 I Page
 10.3 The Court would be failing in its duty if it did not censure the Plaintiff for

this blatant abuse of power and while the matter is in Court. It is trite that

any sale under elegit is supposed to be closely supervised by the Court

which should also approve the price which must not only be fair but in the

best interest of both Parties. This was clearly pronounced by the Supreme

Court of Zambia in the case of Clement and Hilda Chuuya vs J.J. Hakwenda.

10.4 I am alive to the decision of the Supreme Court in the case of Sylvester

Musonda Shipolo vs Shadreck Maipambe where the court stated:

0
A Judgment must be anchored on (or supported) by evidence adduced
before the Court".

As lamented above, it is not the function of the Court to wade through

evidence and calculate the indebtedness of the defendant, for claims which
the Plaintiff has not been able to prove. I accept the defendant's evidence
and their submissions on the conflicting amounts claimed by the Plaintiff. It
is evident that the Plaintiffs operations are governed and regulated by the
Banking and Financial Services Act and the Plaintiff failed to provide clear
statements as required to the Defendants.

10.5 Suffice it to say, that this is the Plaintiffs action. I am not convinced that

the Plaintiff has discharged the burden placed on him. Authorities abound

on the issue of burden of proof. In Zambia Railways vs Pauline s Mundia

and Another it was held that:

2021/H KC/018 J 20 I Page

f

" .. the old adage is true that he who asserts a claim in a civil trial must prove
on a balance of probability that the other party is liable .... "

10.6 The Court is all too familiar with similar principles espoused by the case of

Wilson Masauso Zulu v Avondale Housing Project which echoes the

general rule of thumb that a Plaintiff who has failed to prove his case

cannot be entitled to Judgment, whatever may be said of the opponent's

case.

Phipson on Evidence, states as follows:

0
50 far as the persuasive burden is concerned, the burden of proof lies upon
the party who substantially asserts the affirmative of the issues. If, when all
the evidence is adduced by all parties, the party who has not discharged it,
the decision must be against him. It is an ancient rule founded on
considerations of good sense and should not be departed from without
strong reasons. "

e 10.7 The Plaintiff not having discharged the burden of proof, I have no hesitation
therefore in dismissing the Plaintiff's claims, save for its first claim
numbered (i) for payment in the sum to be quantified as directed below.

I therefore decline to grant the further orders as prayed and order that the

matter be referred to the Hon District Registrar for assessment of the

amount outstanding, if any.

2021/HKC/018 J 21 I Page
F

I also condemn in the strongest terms the attempt by both Parties to drag

in the Courts and its resources, to solve private law disputes, when they

themselves have not attempted to assist the Court in this exercise.

11. The Counter claim

11.1 I have already noted the burden of proof that the defendant ought to have
discharged to prove its counterclaim. Although I note that reference was

made to a running contract with a company called Siltek Limited, and the

purported loss of income for 190 days from 1st March 2021 to 6th

September 2021, there was no evidence placed before the Court, no

statements or bank remittances to show remunerations received, for the so

called contract, nor any witness called to support the existence of the said
contract.

The defendant's witness was shaky on this issue and admitted that they

had not placed any evidence before the Court to prove the counterclaim

other than what purports to be an Equipment Lease Agreement at pages 18

to 20 of the Defendant's bundle of documents.

I will not spend any more judicial time on this non-issue, as it has not been

substantiated to the required standard. I therefore dismiss the

counterclaim in the sum of Kl,520,000.00

11.2 As to the defendant's claim in the sum of USO 328, 301.00 being the agreed

purchase price for the two pieces of equipment, I am guided by the cases of

2021/HKC/018 J 22 I Page
 National Drug Company limited and Zambia Privatization Agency vs Mary

Katongo in which the Supreme Court stated:

"it is trite law that once the parties have voluntarily and freely entered into
a legal contract, they become bound by the terms of the contract and that
the role of the Court is to give efficacy to the contract when one party has
11
breached it by respecting, upholding and enforcing the contract.

• 11.3 In the case in casu, I have already noted that the Parties voluntarily and

freely entered into the term loan facility and the Agreement to sell personal
property whose value was agreed. I have also found that all documents

were prepared by the Plaintiff. It is also a fact that the Plaintiff was in a

stronger position than the Defendants in this transaction being the lender.

The old age adage: He who lives by the sword must die by the sword comes

to mind in this context, and in upholding this claim by the defendant.

12. Findings of the Court

12.1 For the avoidance of doubt, the amount due to the defendant, will follow

the referral to the Honourable District Registrar for the assessment of the
statement between the Parties.

Upon completion of the assessment proceedings, the sum owed to the

Plaintiff, will be offset from the sum of USD 328,301.00, and will form the

basis of Judgment entered for the Defendant and payable by the Plaintiff

within 30 days of the Assessment.

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f

12.2 As a post-script I add the observation that the purpose of pleadings is trite

and does not need judicial pronouncement. The authorities in t he

jurisdiction abound. I am alive to the principles espoused in noted cases

such as Wise v Henry {1985) ZR 179 and Bernard Chilunda vs Zakaria

Chinanzi (1979) ZR 195 and Admark Limited vs Zambia Revenue Authority

(2006) ZR 43.

I make these observations in the context that both the Plaintiff and the

- defendants, {in the prosecution of their counter-claim), did little to support

their respective statement of claim(s) as pleaded. From the start of the

action, to when it was concluded, Parties simply moved on and away from

the Pleadings as settled. In my considered opinion, the neatest thing

Counsel could have and should have done, was to apply to amend

Pleadings, rather than tread down the slippery slope of adducing evidence

from their Witnesses and as submitted in their submissions. This conduct

will obviously have an effect on the order of costs issued by the Court.

9 12.3 Ultimately, the discretion to award costs rests with the Court. In my
considered opinion, and in my discretion, and the Parties being successful

on their claims partially, I make no award of interest or costs.

Delivered at Kitwe, the 8th day of Novemb_~,r:-iotz.-:-_~ "-,

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