AMC Contractors Ltd v Chibwe (Appeal 123 of 1998) [1999] ZMSC 124 (18 February 1999)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO, 123 OF 1998 HOLDEN AT NDQLA/LUSAKA (Civil Jurisdiction) BETWEEN: AMC CONTRACTORS LIMITED APPELLANT AND ROSEMARY BWALYA CHIB WE RESPONDENT CORAM: NGULUBE, CJ, SAKALA AND MUZYAMBA, JJS On 1st December, 1998 and 18th February, 1999 For appellant - Mr. M. Chitabo of Chitabo Chiinga Associates For respondent - In Person. JUDGMENT Ngulube, CJ, delivered the judgment of the cour:. For convenience, we will refer to the respondent as the plaintiff and the appellant as the defendant, which is what they were in the action. The defendant is a company owned and controlled by the plaintiffs ex-husband. The plaintiff is and was at all material times the owner of a Plot being stand number 305 Kamuchanga in Mufulira. There was on the Plot at the relevant time a house under construction. The defendant surreptitiously and wrongfully procured the transfer of the title deeds into the defendant's name whereupon the plaintiff sued for:- (i) "A declaration that the Applicant is the registered owner of and entitled to possession of the premises known as stand No. 305 Kamuchanga Mufulira. (ii) (iii) (iv) A declaration that the transfer or assignment of the subject property to A. M. C. Contractors Limited on the 18th March, 1992 is fraudulent, wrongful and unlawful and therefore null and void in Law. An Order directing the Registrar of Lands and Deeds to rectify the Register of Lands in this regard to reinstate the Applicant as such owner. An Order that the Respondents do pay to the Applicant damages for loss of use of the said property. (v) Further and other relief. (vi) Costs. Judgment was entered by consent of the parties in the following terms "UPON HEARING COUNSEL for Applicant and for the 1st Respondent and BY CONSENT of the parties herein IT IS ORDERED as follows:- 1. 2. That the Registrar of Lands and Deeds do rectify the Lands Register to reinstate the Applicant Rosemary Bwalya Chibwe as the registered owner of the property known as stand No. 305 Kamuchanga Mufulira. That the issue of the damages if any suffered by the applicant by reason of the change of ownership be referred to the District Registrar in Chambers for assessment. 3. That each party do bear their own costs." The assessment of damages was conducted before the learned District Registrar who considered the plaintiffs claims, as presented, under three main heads of claim. Accordingly, he awarded the plaintiff:- (a) KI million for what was called a lost opportunity to get a building or mortgage loan with which to complete the construction; (b) A sum of KI 5 million for what was termed the loss of an opportunity to sell the house to interested buyers; and (c) K24,418,900 representing the increased cost of completing the much delayed construction of the house. The appeal before us related to the propriety of the awards as well as the quantum. In addition, after the assessment and without any permission or agreement from the plaintiff, the defendant had gone to the Plot and completed the house and sought a rebate for doing so by way of mitigation of the damages which Counsel submits should abate. The self-help procedure adopted by the defendant without leave of the Court or agreement of the plaintiff now a Judgment Creditor was completely irregular. We are not surprised that the plaintiff complained to us about this gratuitous new "trespass" and indicated she would prefer the defendant to keep the house and pay her off. We heard detailed arguments and submissions. Mr. Chitabo made much of the fact that the defendant went and completed the house, a fact which he argued should be regarded as the equivalent of the payment of the close to K25 million which the learned District Registrar had awarded. The record shows that at the assessment the plaintiff had taken quotations exceeding K30 million from some contractors as the amount required to complete the construction to her requirements and preferred standard. On the other hand, the defendant had proposed a modest figure of K6 million to complete the house, a sum which could only have been enough for a sub­ standard finish from the plaintiffs point of view. The defendant has foisted his cheaper finish on the plaintiff who now wishes to reject the whole house and who opts to be paid so as to buy another property in Lusaka where she informed us she now lives. Mr. Chitabo also submitted that there was no basis for the award of the amounts for what were called the lost opportunities because there was no house in existence which could have been sold. We have given this case anxious consideration. The point must be made that the judgments of the Courts should as a general rule be carried out in the terms of such judgments. It is not permissible for a judgment debtor who is required to pay a sum certain as in this case to unilaterally devise an alternative remedy or counter proposal and carry that out, instead of obeying the decree of the Court. Having said that, we also recognise that the defendant has as an indisputable fact added some value to the plaintiffs house. It is her house, as adjudged in accordance with her own prayer in the Court below, and there can be no question of the plaintiff rejecting her house at this stage, as she sought to do. Some Credit will be given to the defendant and the only reliable measure of this credit is the evidence which the defendant gave at the assessment that it could carry out a somewhat low - cost completion at K6 million. We should not be understood to be sanctioning self-help of the kind undertaken by the defendant here. Indeed, we can very easily envisage a situation where far from affording mitigation, a defendant who intermeddles might aggravate the situation, as for instance where it became necessary for a plaintiff to demolish an unacceptable job and have it properly redone at additional expense. With regard to the awards in respect of a lost opportunity to borrow money and another to have completed and sold the house, there was merit in the complaint that these ought not to have been entertained. It seems to us to be self-evident that in fact, logically and rationally, the award of the current cost of completion offsets and incorporates the elements considered under the lost opportunities. She will keep the house which is a very valuable asset and which she can sell (if so minded) at current values. To award in addition for the loss of the opportunity to borrow money to complete the building as well as loss of opportunity to sell is to enable double recovery. The plaintiff would effectively have her Cake and eat it. It follows from the foregoing that it is our considered view that the learned District Registrar applied a wrong principle and came to a wrong conclusion. We allow the appeal and quash the awards of KI million and KI 5 million for the lost opportunities. We also give credit of K6 million which will be subtracted from the remaining approximately K25 million. The plaintiff will keep her house, which she is free to sell if she so wishes, and she will recover from the defendant approximately KI9 million balance and interest on the remaining award in respect of the cost of completing. Except as varied, we uphold this last award. In view of the irregular conduct of the defendant and in-the circumstances of this case, despite the outcome there will be no order as to costs. M. M. S. W. NGULUBE CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE