CIVIL CAUSE NO. 1058 OF 1997
CORAM: THE HON. MR JUSTICE F.E. KAPANDA____________________________________________________________
This matter was heard by late Justice Kumitsonyo (may his soul rest
in peace) but he never had the opportunity to pronounce his judgment.
I will therefore proceed to deliver the judgment which the court ought
to have made. In doing this I will be guided by the evidence that
was recorded by the late judge. I wish to further observe that the
record shows that the Defendant, and Counsel, did not make any appearance
at the trial of this action.
On the 25th day of June 1997 the Defendant, through Counsel, filed a notice of intention to defend the action that was commenced by the Plaintiff. As a manifestation of this intention the Defendant’s legal practitioners, on the 8th of July 1997, served on the Plaintiff its statement of defence. In this regard it is essential that the relevant parts of the pleadings that were exchanged between the parties should be laid out in this judgment.
In respect of the Plaintiff the following were the allegations of fact made in his statement of claim attached to the writ of summons:-
“1. The Plaintiff was at all material times, the Defendant’s employee.
2. At all times, the Plaintiff is and was the owner and entitled to possession of the goods particularised in paragraph 2 hereof.
3. At a date which the Plaintiff cannot specify, save that it was in or around the month of September 1994, the Defendant, its agents or servants acting on its behalf wrongfully took possession of the said goods and has failed or refused to deliver them up to the Plaintiff thereby converting the same to the defendant’s own use and wrongfully depriving the Plaintiff thereof.
Particular of Goods
4. By reason of the matters aforesaid, the Plaintiff suffered loss and damage.”
As regards the Defendant, the following relevant averments were made in the statement of defence that was served on the Plaintiff:-
“1. The Defendant refers to paragraph 1 of the Statement of Claim and states that the Plaintiff was its employees from the 23rd of July 1990 to the 8th of August 1994.
2. The Defendant refers to paragraph 2 of the Statement of Claim and denies the contents thereof.
3. The Defendant denies having wrongfully taken possession of the goods particularised in paragraph 3 of the Statement of Claim or at all. In the premises paragraph 3 is denied and the Plaintiff is put to strict proof thereof.
4. The loss and damage referred to in paragraph 4 of the Statement of Claim is denied.
5. The Plaintiff further denies each and every allegation contained in the Statement of Claim as if the same were herein set forth and traversed seriatim and puts the Plaintiff to strict proof thereof.”
It is observed, from the Defendant’s statement of defence, that the
parties herein joined issues on the Plaintiff’s lawsuit. In view
of this there was need for the matter to be set down for hearing so that
evidence could be adduced to prove the facts in issue. The matter
was first set down for hearing on the 12th-13th of November 1998 but on
the appointed day the matter was neither heard nor is there
On the 16th day of February 1999, when this action was called for hearing the Defendant, and its legal representative, were absent. The court invoked the provisions of Order 35 Rule 1 Subrule 2 of the Rules of the Supreme Court and proceeded with the trial of the action. The Plaintiff was then allowed to testify and prove his claim. It is on record that Plaintiff, together with his two witnesses, are the persons who testified before the court. I will now move on to consider the evidence that was offered by the Plaintiff to prove his claim against the Defendant.
Of the three witnesses who testified the first to be called was the Plaintiff who told the court that he was in the employ of the Defendant until sometime in September 1994 when his services, with the Defendant Company, were terminated. He further testified that as part of his fringe benefits his employers had leased a house for him at Bangwe. It was his further testimony that his services had been terminated whilst he was away to his home village.
The Plaintiff further told the court that his employers, upon terminating
his employment, proceeded to the said house in Bangwe and broke the door
of the house and entered to the house and took away his personal items,
particulirised in paragraph 3 of statement of claim, purportedly as security
for a debt, in the sum of K2,000.00, owed to the Defendant. It was
further given in evidence, by the Plaintiff, that his employers told him
that they were going to release his goods upon settlement of the said debt
The second witness to testify was the Plaintiff’s wife, PW2, a Mrs Mevis Kalombe (nee Kabambe). She basically repeated what the Plaintiff told the court to the effect that the Defendant took away the Plaintiff’s goods.
The last witness, to be called by the Plaintiff was Mrs Catherine Beula a neighbour of the Plaintiff. Her testimony was very short and it was essentially that the Defendant’s vehicle came to collect from the Plaintiff’s house at Blantyre. It was her further sworn evidence that at the time the Defendant’s motor vehicle came to collect the said goods the Plaintiff and his wife were not there.
The above is, in a nutshell, the evidence that the Plaintiff offered to prove the allegations of fact made in his statement of claim. I now proceed to isolate the issues for determination in this matter. In doing this I will be mindful of the fact that the Plaintiff is required to prove, in view of the non appearance of the Defendant, the allegations of fact made in the statement of claim.
Issues for Determination
As stated earlier, in isolating the issues for determination, considering
that there was non appearance by the Defendant this court must concern
itself with whether the Plaintiff has proved his
(a) whether the Plaintiff was the owner of the goods particularised in paragraph 2 of the statement of claim.
(b) whether the Defendant, its servants or agents, wrongfully took possession of the Plaintiff’s goods.
(c) whether the Defendant, its servant or agents, failed and refused to deliver the goods to the Plaintiff and thereby converted the goods to the Defendant’s use.
(d) whether the Defendant, its servants or agents, wrongfully deprived the Plaintiff of his goods.
(e) whether, as a result of the Defendant’s conduct, the Plaintiff has suffered any loss or damage.
It must be observed that, inspite of my singling out the questions that arise and fall to be decided in this matter, I shall not make mention of each one of them when I am making my findings of fact. But it is trusted that at the end of this judgment I will have decided on all the issues that require determination. I will now move on to make my findings of fact based on the uncontradicted evidence that was received by the court.
Law and Findings
burden and standard of proof
Without much ado let me proceed to make my determination on the pertinent issues on this matter. But before that let me point out that it is common ground that the Plaintiff was an employee of the Defendant until his services were terminated, or until he was dismissed from employment, sometime in August or September 1994. The exact dates when the Plaintiff was employed and dismissed, or his services were terminated, is of little significance.
Was the Plaintiff the owner and entitled to possession of the goods the subject matter of this action?
As I understand it, the position at law is that for a party to succeed
in an action for conversion he must prove, inter alia, that he is the owner
and entitled to possession of the chattel subject matter of the action.
I am of this view because of the definition of conversion as given in the
cases of BNN Nyirongo -vs- Attorney General Civil Cause No. 51 of 1994
High Court (unreported) and
Did the Defendant, its servants or agents, commit the tort of conversion in respect of the Plaintiff’s goods?
It is trite law, which requires no citation of a case authority, that conversion the wilful interference with any chattel, by the Defendant, in a manner inconsistent with the right of the Plaintiff without lawful justification whereof the Plaintiff is deprived of the use and possession of the chattel.
Turning to the present case, it is the finding and conclusion of this court that, on the undisputed evidence on record, the Defendant committed the tort of conversion. The Defendant’s taking of the Plaintiff’s goods amounted to an interference with the goods in a manner inconsistent with the rights of the Plaintiffs. It matters not that the Plaintiff had an unsettled debt with the Defendant. Indeed, it is in evidence that the Defendant had told the Plaintiff that it was going to recover the debt from the Plaintiff’s terminal benefits. Thus there was no need to take the Plaintiff’s goods as a lien. As a matter of fact the Defendant had another lien over the said terminal benefits. Further, it was wrong for the Defendant to have two liens in connection with a single debt that it was owed by the Defendant.
Moreover, it is in evidence that a good part of the debt was settled
through the pension money the Defendant got from Nico. In point of
fact the amount that remained unsettled is only the sum of K759.25.
It was unconscionable for the Defendant to refuse to return the goods or
part of the goods for a debt of only this meagre sum of K759.25.
If the list of the goods converted is anything to go by it would appear
that, despite the fact the value of same has not been ascertained, the
value of the goods is more than the said sum of K759.25 the Defendant is
The long and short of it is that the Plaintiff has proved his case against the Defendant. In the premises the Plaintiff would be entitled to damages for the said loss and damage.
Damages and costs
I have noted that the Plaintiff did not give evidence of the value of the goods the subject matter of this action. It is therefore difficult to assess the damages. In the light of this I order that the damages shall be assessed by the Registrar on a date to be appointed. Further, I award the costs of, and occasioned herein, to the Plaintiff. The said costs are to be taxed if not agreed upon by the parties.
Pronounced in open court this 10th day of December, 2001 at Principal