Armcor Security Limited v Given Lubinda T/A Eke's Little Shop (Appeal No. 176/2003) [2006] ZMSC 54 (24 February 2006)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 176/2003 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ARMCOR SECURITY LIMITED Appellant AND GIVEN LUBINDA T / A EKE'S LITTLE SHOP Respondent Coram: Sakala, CJ. Chibesakunda and Chitengi, JJS. on 30th June) 2005 and 24th February, 2006. For the Appellant : Mr. S. Mambwe of Messrs Mambwe Siwila & Partners For the Respondent: Mrs. N. B. Mutti of Messrs Lukona Chambers JUDGMENT Chitengi, JS, delivered the judgment of the court. In this judgment, we shall refer to the Appellant as the Defendant and the Respondent as the Plaintiff which is what they were in the court below. The facts of this case are that at the material time, there was in subsistence a contract between the Plaintiff and the Defendant whereby the Defendant provided and installed a security system called rapid response in the Plaintiff's shop. The operation of the system was that when it was activated a break-in into the shop would be signaled to the Defendant's control center and the Defendant's guards would rapidly rush to the Defendant's shop. On the night of 10th February, 1997 the Plaintiffs shop was broken into but the Defendant did not rapidly respond. The break in was later reported to the Police and brought to the attention of the Defendant. The Defendant's representative went to the Plaintiff's shop and about two days later wrote the Plaintiff a letter in these terms: - <'It was discovered that the alarm system had not been armed the night before by your personnel. Attached is a computer print out which confirm this. Our normal system is that we Jax or correspondent with clients the next day if their system is found to be open at 23: 30 hours the night before. We are now going to change our approach for industrial and commercial clients. If at 23: 30 hours your system is found to be open, we will either phone or send a vehicle to whoever you have appointed as your contad person. The onus is then on that individual to address the problem." On the night in question the Defendant did not get in touch with the Plaintiff. As a result of the break in, the Plaintiff suffered loss of groceries worth K7.3 million. The Plaintiff said the alarm was armed by him but it did not activate. But prior J3 to this incident, the Plaintiff never experience difficulties with the system. According to the Defendant's witness, Mr. Douglas Chisenga, who is the Defendant's operations Manager in charge of the control room, the Plaintiff's shop was provided with full alarm with two censors. This system is called censor and panic button. He said he has been Operations Manager for two years. He testified that the Plaintiff was shown how to use the alarm system. On the night of the break in the Defendant's control room could not respond because the Plaintiff did not alarm the system as shown by the computer print out. He said that the Defendant's Technical Department regularly checks alarm systems to ensure that they are fully operational. He testified that on the day following the night of the break in, a signal from the Plaintiffs shop was received at the control center and he alerted the Rapid Response which rushed to the Plaintiffs shop. On this evidence, the learned trial Judge found that the Plaintiff activated the alarm system before he left the shop; that the alarm system did not activate when unknown persons broke into the shop and that the Defendant was negligent. Having found the Defendant liable in negligence, the learned trial Judge awarded the Plaintiff K7,315,190.00 damages, the J4 value of the stolen goods and K2,500,000 damages for negligence. The Defendant now appeals to this court against the judgment of the court below. The Defendant filed a Memorandum of appeal with three grounds of appeal. But when we heard the appeal grounds one and three were abandoned. Only the second ground was argued. The second ground of appeal is that the learned trial Judge erred in both fact and law by holding that the alarm system did not activate by reason of the Appellant's negligence. Both counsel filed written heads of argument which they augmented with oral submissions. Mr. Mambwe, learned counsel for the Defendant, argued that the finding by the learned Judge that the Plaintiff armed the alarm system could not be made in view of the fact that the learned trial Judge in his judgment ignored the computer print-out showing that the alarm was left open and the letter on Page 35 of the record of appeal written by the Defendant to the Plaintiff on whether the alarm system was activated. Further, Mr. Mambwe pointed out that the learned trial Judge JS also ignored the evidence that when the panic button was pressed on the morning of the day following the night of the break, the signal was received at the control center and the Rapid Response went to the Plaintiff's shop, showing that the alarm system was in good working order. For these reasons, Mr. Mambwe urged us to reverse the learned trial Judge. Mrs. Mutti, learned counsel for the Plaintiff, submitted that the ground of appeal is based on points of fact. She said that no appeal lies to this court on a point of fact only unless it is a mixed point of fact and law. Mrs. Mutti submitted that the learned trial judge arrived at the conclusion after seeing the witnesses and observing their demeanor. But when asked by the Court whether the learned trial Judge properly evaluated the evidence, Mrs. Mutti, quite properly, conceded that the learned trial Judge did not evaluate the evidence properly. In answer to a question by the court, Mrs. Mutti did not also support the award of K2,500,000 damages for negligence. Both counsel cited authorities to us but on account of the view we take of this appeal, we do not find it necessary to recite these authorities. Suffice it to say that we have considered them. As Mr. Mambwe rightly submitted, the learned trial Judge ignored the evidence of the computer print out, the letter from J6 the Defendant to the Plaintiff which we have reproduced and the evidence of the events of the morning following the night of the break in. As Mrs. Mutti quite properly conceded, we cannot say that the learned trial Judge properly analysed the evidence in this case. Rather, the learned trial Judge merely said, without giving reasons, that he was satisfied that the ' Plaintiff activated the alarm. In the circumstances, it is difficult for us to see and follow the learned trial Judge's reasoning. Further, the learned trial Judge made no findings on the very vital document of the computer print out. f In our view, the trial of this case was totally unsatisfactory. We remit back this case to the learned trial Judge for retrial and with directions that he must consider all the evidence. Costs will abide the final outcome of these pr~ceedings . .................. m ......................... . E. L. SAKALA CHIEF JUSTICE ..................... t·~Y.: : ......................... . L. P. CHIBESAKUNDA SUPREME COURT JUDGE ············· .... E R-C ENGi SUPREME COURT JUDGE