J1

(54)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 51/2009

HOLDEN AT LUSAKA/NDOLA SCZ JUDGMENT NO. 3 OF
2012
(Civil Jurisdiction)

B E T W E E N:

MIDLANDS BREWERIES (PVT) LIMITED APPELLANT

AND

DAVID MUNYENYEMBE RESPONDENT

Coram: Sakala, CJ., Silomba and Chibomba JJS.

On 3rd November, 2009 and on 18th January 2012.

For the Appellant: Mr. G. Nyirongo of Nyirongo & Co, Kitwe.

For the Respondent: Mr. D. Mazumba of Douglous and Partners.

JUDGMENT
Chibomba, JS, delivered the Judgment of the Court.

Cases referred to:-

1. Attorney General vs. Peter Ndhlovu (1986) Z.R. 12
2. Attorney General vs. Achiume (1983) Z. R. 1
3. Mary Musambo Kunda vs. The Attorney General (1993-94) Z. R. 1
4. Kafue District Council vs. Chipulu (1995-97) Z. R. 190
5. Victor Koni vs. The Attorney General 1990-92 Z. R. 20
6. Livingstone vs. Rawyards Company (1880) 5 A. C. 25
7. Duncan Sichula and Muzi Freight Forwarding Limited vs. Catherine
Chewe (2000) Appeal 123 S.C.Z.

When we heard this appeal, Mr. Justice Silomba sat with

us. He has since retired. This Judgment is, therefore, by the

majority.

This appeal is against the decision of the Deputy Registrar at

assessment. The learned Deputy Registrar awarded the sums of

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(55)

K6,500,000 as towing charges, K26,000,000 as repair costs of the

respondent’s minibus and K349,600,000 as loss of business for

184 days, the period under which the minibus was not

operational. He also awarded interest at short term deposit rate

from the date of the Writ up to the date of Judgment and

thereafter at current lending rate determined by the Bank of

Zambia and costs.

The facts leading to this appeal are that the respondent, a

business man, was running a fleet of minibuses. He was the

owner of a Mitsubishi Rosa minibus, Registration No. ACH 1442,

which used to operate on a daily route of Kitwe/Lusaka/Kitwe. On

16th August 2008, the minibus was involved in a road traffic

accident with the appellant’s motor vehicle, a Mitsubishi Fuso

Fighter, Registration No. ABG 2822. The respondent’s minibus

was damaged and it was off the road for a number of days. The

respondent commenced an action in the High Court at Kitwe,

claiming damages for loss of use of the mini-bus, repair costs and

towing charges.

By Consent Order dated 7th October 2008, the parties agreed

that Judgment be entered in favour of the respondent against the

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(56)

appellant for damages to be assessed by the Deputy Registrar

and costs. The learned Deputy Registrar, at assessment,

awarded the sums mentioned above to the respondent.

Dissatisfied with the awards, the appellant appealed to this

Court advancing three grounds of appeal as follows:-

“1. That the learned Deputy Registrar erred at law and facts
when he awarded K6,500,000.00 for towing charges
without documentary proof and or receipts.

2. The learned Deputy Registrar erred at law and facts in

awarding the Respondent the sums of K349,600,000.00
loss of business and K26,000,000.00 repair costs without
any documentary proof and or books of accounts for the
Respondent.

3. The learned Deputy Registrar erred at law and facts in

completely disregarding the appellant’s evidence at the
hearing.”

The learned Counsel for the appellant, Mr. Nyirongo, relied

on the Heads of Argument filed. He also augmented the Heads of

Argument with oral submissions. The three grounds of appeal

were argued together. It was argued, in the said grounds of

appeal, that the learned Deputy Registrar misdirected himself

when he awarded the above sums as repair costs, towing costs

and loss of business. Our attention was drawn to the learned

Deputy Registrar’s ratio decedendi which is couched as follows:-

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(57)

“There is no documentary evidence to prove how much was

being made per day and how much was spent on towing the
minibus from Lusaka to Kitwe. In this case, the Respondent
will be awarded his profit which he has lost as a result of
accident from 16th August, 2007 to 15th February, 2008 when
the bus left the garage….1st Defendant is also under the
obligation to refund towing expenses. It is the 1 st Defendant
who made the respondent incur that one. The booking fee is
not supported by any document. However, the Court has
awarded the whole of K6,500,000.00 in that there is no fixed
rate of towing charges. Each one charges his/her own rates.”

It was argued that this decision is wrong as there was no

evidence to support these findings. Further that this also shows

that the Deputy Registrar did not analyse the evidence adduced

by the appellant as he merely found for the respondent. We were,

accordingly, urged to reverse these findings on the basis of our

decisions in the cases of Attorney General vs. Peter Ndhlovu1,

Attorney General vs. Achiume2, Mary Musambo Kunda vs.

The Attorney General3 and Kafue District Council vs.

Chipulu4.

It was argued that the ratio decidendi and dicta in the above

cited cases were to the effect that the appellate Court will not

generally reverse the findings of facts made by the trial Judge,

except where the appellate Court is satisfied that the findings of

the lower Court were either perverse or made in the

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absence of any relevant evidence or upon a

misapprehension of the facts or they were findings which

on a proper view of the evidence, no

(58)

trial Court acting correctly can reasonably make. (emphasis

is ours).

It was pointed out that in Mary Musambo Kunda vs. The

Attorney General3, this Court dealt with a claim for loss of profit

and lamented the failures by plaintiffs to adduce evidence to

quantify the net loss. We also discouraged the practice of

expecting the Courts to make inspired guesses. We then went on

to award a token sum of K1,000 in acknowledgment that the

respondent in that case had lost something but which she did not

prove. In that case, in a claim for loss of profits for a month

amounting to K87,000 when the grocery shop was closed, the

respondent had admitted to not keeping accounts. The

respondent did not adduce evidence to quantify the net loss. We

also said this failure must react against her.

It was argued that in Kafue District Council vs. Chipulu4,

in which we dealt with a claim of K100,000.00 as transport and up

keep costs which was not supported by documentary evidence,

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we accepted the evidence that the respondent travelled from

Chipata to Kafue with his family and then back to Chipata. We,

however,

(59)

observed that the general rule that any shortcomings in the proof

of a special loss should react against the claimant. We also

stated that in order to do justice notwithstanding the indifference

and laxity of most litigants, the Courts have frequently been

driven into making intelligent and inspired guesses as to the

value of special losses on meager evidence.

It was contended that in the current case, the learned

Deputy Registrar made a glossy imbalanced evaluation of the

evidence as he did not evaluate the documentary evidence

adduced by the appellant. That PW1’s evidence was that before

the accident, he used to keep receipts but that these had been

misplaced. That therefore, since no documentary proof was

produced to support the claim for loss of profit and towing charge,

it was wrong for the Deputy Registrar to award the said sums.

Further that PW1 also testified that Receipts and accounts to show

the repair costs were there but that the one who was keeping the
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books of accounts was dead and that the books were at his home

for security reasons.

It was argued that PW1 did not, however, give reasons why

he did not bring the receipts and books of accounts to Court.

That,

(60)

therefore, on the basis of the above cited cases, the respondent’s

indifference and laxity should react sharply against him as his

failure to provide the much needed evidence was calculated to

defeat the ends of justice. That, accordingly, a token sum should

be awarded as loss of business and as towing charge. Further that

receipts were not produced to show that K35,000,000 claimed as

repair costs was infact paid to Okavango Garage for the body

works. We, were accordingly, urged to award the sum of

K18,000,000 as repair costs.

In his oral submissions, Mr. Nyirongo referred to the case of

Victor Koni vs. The Attorney General 5 and submitted that this

case should be distinguished from the current case in that in the

earlier case, the decision was based on the fact that it was not

expected that taxi drivers, by the nature of their business, would

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keep receipts of their transactions. That, however, in the current

case, the respondent’s evidence was that he used to keep records

and books of accounts for the minibus except that he did not

bring these documents to Court. The respondent, therefore,

opted not to bring critical evidence to Court which could have

assisted the Court

(61)

below to make a reasoned award on the loss claimed and that this

was an error.

On the other hand, the learned Counsel for the appellant, Mr.

Mazumba, relied on the appellant’s Heads of Argument which he

augmented with oral submissions. It was submitted that in this

case, it is not in dispute that the accident occurred and that the

appellant’s driver was in the wrong; the respondent’s motor

vehicle which was operating as a public transporter between

Kitwe and Lusaka was off the road from 16th August 2007 when

the accident occurred up to 15th February 2008, when it came out

of the garage.

It was contended that the respondent paid K35,000,000 as

repair costs and that PW2, a witness from Okavango Garage,

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confirmed that the respondent paid K35,000,000 as repair costs.

That, therefore, the learned Deputy Registrar was on firm ground

when he awarded the said sums as repair costs, towing charges

and loss of business.

In support of this argument, the case of Livingstone vs.

Rawyards Company6 was cited in which it was held that:-

(62)

“You should as nearly as possible get that sum of money which

will put the party who has been injured or suffered in the same
position as he would have been in if he had not sustained the
wrong which he is now getting his compensation or
reparation.”

It was further argued that although the minibus was

damaged in Lusaka, it had to be towed to Kitwe for repair at the

instance of the respondent. And that this was so done so that the

respondent could mitigate his loss. Therefore, that even though

documentary evidence regarding towing charges and daily

cashing was not provided, documentary evidence is not the only

evidence that is accepted in the Courts of Law. Viva voce

evidence is also accepted especially where the oral evidence

appears to be true and where no reason is given for suspecting it

to be false. Further that the charge of K55,000 per passenger

from Kitwe to Lusaka was not contested as the appellant did not
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bring any contrary figure nor did the appellant lead evidence to

this effect. In support of the above arguments, the case of Victor

Koni vs. The Attorney General 5 was cited in which we held

that:-

“(i) Where in the case of a business it is not customary to

give receipts and where the oral evidence of loss of profit
is not challenged it is not necessary for the claim to be
supported by independent or documentary evidence.

(ii) Where as in the case of a taxi driver, to employ a driver

to run the taxi whilst the appellant is incapacitated there
is a real risk of the loss of the taxi; there is no duty to
employ such a driver to mitigate the loss.”

(63)

The case of Kafue District Council vs. Chipulu3 was also

cited in which we stated that despite lack of evidence to support

the claim for transport and upkeep costs, the claim of

K100,000.00 was an intelligent and inspired guess of the special

loss.

The case of Duncan Sichula and Muzi Freight

Forwarding Limited vs. Catherine Chewe 7, was cited in which

we stated that an appellate Court should not interfere with an

award unless it was clearly wrong in some ways such as because

a wrong principle had been used or the facts were

misapprehended or because it is so inordinately high or so low

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that it is plainly a wrong establishment of the damage to which

the claimant was entitled.

It was contended that the record shows that the respondent

initially claimed K3,000,000 per day as loss of business but that

the Deputy Registrar reduced the sum to K1,900,000 per day

after removing the expenses which the respondent could have

incurred.

In augmenting his written submissions, Mr. Mazumba argued

that the respondent called a witness from the Okavango Garage

(64)

who confirmed that the respondent paid the sum of K35,

000,000.00 as repair costs.

In response to the claim that no evidence was adduced to

support the claim for loss of business, Mr. Mazumba submitted

that the respondent’s evidence was that although he did not

bank the money from cashing, he had some proof and that the

driver and the conductor can confirm how much he used to get

per day. He also said that he used to spend K800,000 on fuel and

K3,000,000 on personnel. And that the sum of K1,100,000 was

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an expense which was deducted by the Deputy Registrar. That

the respondent also stated that he used to keep receipts before

the accident but that he had misplaced them.

Counsel argued that although it was conceded that the Court

below did not take into account days for service of the minibus

and public holidays, the appellant did not challenge the

respondent’s evidence on what was being made per day.

On the towing charge, Mr. Mazumba countered that the

appellant was asked where the motor vehicle should be taken for

repair but that the appellant’s witness said he did not know.

(65)

Hence, the respondent towed the motor vehicle to Kitwe for

repair where he used to take it before the accident.

Counsel argued that although no document for towing fees

was produced, if the towing was done by professionals, it could

have even cost more. Therefore, that, the sum awarded is a

reasonable amount.

We have seriously considered this appeal together with the

arguments advanced in the respective Heads of Argument, the

authorities cited, the oral submissions by the learned Counsel for

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the parties and the Judgment by the learned Deputy Registrar at

assessment.

In resolving this appeal, we intend to begin with the third

ground of appeal. The major contention under this head is that

the learned Deputy Registrar did not take into account the viva

voce and documentary evidence on record as he only made

sweeping findings. For this reason, this is a proper case for this

Court to reverse the findings of fact on the basis of the above

cited authorities. It was argued that the findings were not

supported by the evidence on record.

(66)

We have considered this ground. On perusal of the record

and indeed, the Ruling by the learned Deputy Registrar, it is

agreed that to a certain extent, the learned Deputy Registrar did

not adequately analyze all the evidence before him as evidenced

by the manner in which he couched the Ruling in question. The

effect of this is that we are at large and we shall do the

assessment ourselves. Although grounds one and two were

argued together, we shall deal with each ground separately.

With respect to the first ground of appeal concerning the

award of K6,500,000.00 as towing charge, the major contention

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by the appellant is that the award of this sum is not supported by

any documentary proof or receipts to show that indeed, the

respondent paid this sum as towing charges. We agree with the

appellant’s submission that this being a special damage, the

respondent should have produced receipts or some other

documentary proof to show that this sum was paid as towing

charges.

However, it is a fact that the respondent’s motor vehicle was

a passenger transporter operating the route Kitwe/Lusaka/Kitwe.

It is also a fact that after the motor vehicle was involved in a road

(67)

traffic accident with the appellant’s motor vehicle, the minibus

was off the road for some time. It is also a fact that the motor

vehicle had to be towed from Lusaka to Kitwe for repair and

where the respondent resides.

It is a fact that the respondent incurred some cost for

towing his motor vehicle from Lusaka to Kitwe. Therefore,

although a receipt was not produced to support the claim under

this head and considering the distance between Lusaka and

Kitwe, we do not find the sum of K6,500,000 awarded under this

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head to be excessive or extravagant. Therefore, on the basis of

the principle in Kafue District Council vs. Chipulu3, we confirm

the sum of K6,500,000 awarded as towing charge under this

head. The first ground of appeal therefore fails.

For convenience, the second ground of appeal is split into

two portions.

The first portion challenges the award of K26,000,000.00 as

repair costs. The major contention is that there was no basis for

awarding this sum as the respondent did not produce any

documentary proof or receipts to show that indeed, he paid this

(68)

sum as repair charges. Further that the respondent told the

Deputy Registrar that he had the receipt and that therefore, his

failure to produce the receipt should react against him. We have

considered these arguments. We agree that this being a special

damage, a receipt should have been produced to show that

indeed, the respondent paid this sum as repair costs to Okavango

Garage.

We, do not, however, agree with the contention that the

respondent should have taken the motor vehicle to the

appellant’s chosen garage as the evidence on record has not

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shown any serious commitment by the appellant to take the mini-

bus to its preferred garage in Lusaka. We say so because if the

appellant was serious on this, the motor vehicle could have been

taken for repair before it was towed to Kitwe. The record shows

that a reasonable period elapsed between the date of the

accident and when the motor vehicle was towed to Kitwe without

the appellant picking it up for repair.

Therefore, the respondent cannot be faulted for towing the

motor vehicle and taking it to the garage in Kitwe where it was

repaired, especially, in the circumstances of this case where the

(69)

motor vehicle was involved in business. This was the respondent’s

effort to mitigate his loss.

We further agree that since the motor vehicle was damaged

in the accident, there can be no doubt that the respondent must

have incurred repair costs. It must also be noted that the

purpose for awarding damages under this head is to put the

plaintiff in the position he could have been had the wrong act not

been committed.
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Therefore, although no receipt was produced to show that

K26,000,000 was paid as repair costs, there is evidence from an

officer of Okavango Garage (PW2), which was to the effect that

indeed, the respondent was quoted and paid K26,000,000 as

repair costs.

Further, the record shows that although the accident

occurred on 16th August 2007, the appellant only wrote to the

respondent on 22nd December 2007 confirming the telephone

conversation of that same day requesting that the motor vehicle

be surrendered for repair. There is also an Invoice from

Okavango Garage which is at page 21 of the record of appeal

which shows that the respondent was quoted K35 Million as

repair cost. The Invoice at page 21 of

(70)

the Record of Appeal is stamped: “PAID”. Therefore, based on

the principle in the case of Victor Koni vs. The Attorney

General5, we confirm the sum of K26,000,000 awarded as repair

cost after deducting the sum of K9,000,000 paid by the Insurance

Company.

The second portion of the second ground of appeal attacks

the sum of K349,600,000 awarded for loss of business. The major

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contention is that the award was not supported by any

documentary evidence as the books of accounts which the

respondent said he used to keep for the motor vehicle were not

produced in Court. On the other hand, the respondent’s

argument was that the motor vehicle used to make K3,000,000

per day. That the Deputy Registrar, however, deducted fuel and

personnel expenses which left the sum of K349,600,000 awarded

in this matter.

We have considered the above arguments. It is our

considered view that it is a fact that as a result of the appellant’s

conduct, the respondent’s motor vehicle was damaged and that

as a result, it could not be used to carry passengers at a fee.

There can be no doubt that the respondent must have incurred

some loss of

(71)

business during the period his motor vehicle was not operating.

The evidence on record shows that although the respondent

had claimed the sum of K3,000,000.00 per day as loss of

business, the learned Deputy Registrar reduced this sum to

K1,900,000.00 per day after deducting operational expenses for

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personnel and fuel costs. However, it is also a fact that the

learned Deputy Registrar did not take into account the days when

the motor vehicle could not have operated on account of repair

and service and weekends. He ought to have taken this into

account.

After all is said and done and considering the distance

between Kitwe and Lusaka, we would deduct one day per month

for repair and service.

The learned Deputy Registrar assessed the number of days

the minibus was out of service at 184 days. If 184 days is divided

by an average of 30 days per month, it gives 6 months.

Therefore, the total number of days to be deducted from the 184

days for service and repair is 6 days.

(72)

We would also deduct one day per week for weekends when

the driver was resting as it is not expected that the driver would

work throughout without any rest. If 184 days assessed by the

Deputy Registrar is divided by 7 days, it gives 26 weeks. If one

day is deducted from 26 weeks, it gives 26 days as days of rest.

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If the 6 days for service and repair is added to the 26 days

for days of rest, it gives a total number of 32 days to be deducted

from 184 days. This gives 152 days. If 152 days is multiplied by

the sum of K1,900,000 per day, this gives a total sum of

K288,800,000. Therefore, we award the sum of K288,800,000 for

loss of business.

The second ground of appeal also fails except to the extent

reflected above.

To the extent of what we have stated, the appeal is allowed.

Costs to be taxed in default of agreement are for the

respondent.

……….………………………….
E. L. SAKALA
CHIEF JUSTICE

………………………………………… …………………………
S. S. SILOMBA H. CHIBOMBA
SUPREME COURT JUDGE (RTD) SUPREME COURT
JUDGE