Mulauzi (as personal representative and administratix of MJ. Mulauzi) v ESCOM LIMITED (Civil Cause 307 of 2007) [2017] MWHCCiv 9 (8 May 2017)

DUPLlCATE . M IGH COIJRT ._1BRAAV \ t_.. ·- ..... ,..,. J IN THE HIGH COURT OF MAIA WI PRINCIPAL REGISTRY Civil Cause No. 307 OF 2007 Between: BEATRICE MUIAUZI (as personal represent.a.rive and Administratrix of MJ. MUIAUZI) And ESCOM LlMITED. PIAINTIFF DEFENDANT Coram CC MATAPA KACHECHE E Banda Kambauwa Assisl,ml Registrar Counsel for the plaintiff Counsel for the Defendant 1. The plaintiff commenced this action in her capacity as the administratrix of the estate of ORDER ON ASSESSMENT OF DAMAGES MJ Mulauzi (deceased). 2. Before his demise the deceased used to carry on restaurant and rest house businesses at Mangochi Boma. I 3. The defendant, the sole supplier of electricity in the country, used to supply electricity to the business premises under account number 100434,1.11.. Meler number .57110 was installed on the premises. The plaintiff carried on the deceased's business upon his demise. ,1., According to the plaintiff, the premises used lo consume around 1000 units of electricity per month and rarely incurred bills in excess of K,1., 000.00 per month. However while she so kept her consumption to the minimum, the defendant through its agents or servcU1ts started sending wrong bills to the plaintiff. The bills, though quoting the correct account number were quoting the ',vrong meter number. 5. The wrong bills were higher tlm1 the normal consumption for the plaintiff. On or about 17"' May, 2005 the defcndcU1t posted, to the plaintiirs account, a consumption of 28, 070 units costing Kl 72, 830.29. According to the plaintiff in that month she had consumed the usual cUnount she had been consuming all along. 6. Although the plaintiff tried to resolve the issue with the defcnclcml both through its brcU1ch ollice at Mangochi and through its headquarters, the dclcnd,mt did not heed the plaintiirs complaint. Instead the defendant demanded that the plaintiff do clear the bill or face disconnection. Indeed the defend.ml carried out its threat when the plaintiff failed lo clear the bill in good time. - - DUPLICATE 7. The plaintiff was then forced to negotiate payment terms with the defendant just to have the defendant reconnect the electricity. Whereas the plaintiff tried to keep to her part of the agreement the defendant kept on disconnecting the plaintiff until she commenced the action herein. 8. According lo the plaintiff the conduct of the defendant has caused her loss: the plaintiff had to use charcoal and firewood lo cook in the restaurant instead of electricity. This affected her business in that cooking on firewood or charcoal is cumbersome and slow thereby leading to lower production of food and snacks. Apart from the slowness she had Lo suspend production of certain foods and snacks altogether, particularly those that are sensitive to smoke such as cakes, and those dependent on electricity for production such as ice cream. 9. The plaintilrs business environment was also affected in that she could not provide fans and light during night time. Her business was therefore restricted Lo day time before dusk. Her rest house business was completely killed off as people could obviously not patronize a dark rest house and, with it, went a portion of her restaurant customers as some resthouse customers used to buy food at the restaurant. 10. The plaintiff therefore claimed damages for breach of statutory duty; refund of the sums she wrongfully paid towards the clearing of the bills plus interest; damages for injurious falsehood and slander; damages for deprivation or loss of business and loss of profits. She also claimed costs of the action. 11. The defendant defended the action but ended up being found liable as a result of the striking out of the defence for non-compliance with mandatory meuiation rules and for the defence lacking merit. The judgment was for unliquidated damages. The matter was therefore set dmvn for assessment of damages. The first hearing "vas on 9'h July 2015. The plaintiJT was the sole witness on her own behalf. The Law and Determination 12. The principle is that the Court must, as nearly as possible , order an amount, as far as money can, which will put the plaintiff in the same position she would have been in if she had not sustained the wrong for which she is being compensated- per Earl Jowill in B1ill~'i1 TraJJsport Commission v Gowfcy[1956] AC 185. This principle has been endorsed in the High Court in this country and it has been said that it guides the court in coming up with a fair estimation of the damages- per Ndovi J in Maka.la v ALLomey Generrv11998] MLR 187 (HC). 13. It must be staled however that the plaintiff has a duly lo mitigate any loss that might occur due to the wrong. The principle was stated by Viscount Haldane in the leading case of Bnlish Wcsui1ghousc Co. v Underground Ry [1912] AC 673 al 689 where he said: DUPLlCATE "171e fi111dame11lal basis is dws compensation for pecuniary loss naturally llow1i1g limn d1c breach; but tin's first pni1CijJlc i's qu;J1fied by a second, which 1inposes 011 a pla1i1u!T the duty of'tahi1g all reasonable steps lo mitigate the loss consequent 011 die breach. ... " 14. Damages for loss of profits are special d,m1agcs and as such must be specifically pleaded and particularized and, of course, proved. The measure is based on the nature of business and the general return there from. (Sec Namandwa v. Tennel & Sons 10 MLR 383 applying Banows Engr. Ltd v. JVjewa, Supreme Court of Appeal, Civil Cause No. 7 of 1981, unreported, at p.386) . Analysis of Evidence 15. The lcslimony for the plaintiff, though reduced to a witness statement, was not systematically presented thereby making il very diflicull lo follow. As we will see later the plaintiffs testimony was presented in a confused manner thereby making it difficult Lo fairly assess the d,unages herein . . 16. The plaintiff testified thaL she had tried lo amicably resolve the issue with the defendant by, among other things bringing lo its agents' attention the disparity between the account number and the meter number. In cross-examination the plaintiff was adamanl in slating that the defcmhml was not willing lo yield up lo its mistal<.cs and rectify the same insisling the plaintiff could not ask questions but pay for the bill as presented for it represcnlcd her consumption of the electricity. 17. To illustrate that the defendant was billing her using wrong meter readings she presented a bill for the month of July 2005 payable by 8'" August 2005. Quoting the correct account number, the bill ref rrcd lo a wrong meter number 81159. She goes on to say that is how she was being billed all along. The correct mclcr number should have been 57110. 18. Now, my observation is that both the plaintiff ;md the defendant had it wrong in the manner they handled the evidence during assessment. Much of the evidence that they brought would have been perf'ccl for purposes of establishing liability rather than assessing the quantum of damages. 19. I make this observation because the issue of liability had already been scUlcd, as such there was no need for the plaintiff to begin stating how the bills were blotted and how it was wrong meter numbers that had their bills posted lo her account. In my view it would have sutliced if the plaintiff only slated that, as a result of the blotted bills she had failed lo pay, or struggled lo pay; that she approached ESCOM for a number of times; stating how many limes she did that; that the power was disconnected and for how long it was so disconnected. - 20. My second observation shows clearly how the whole testimony was messed up. The plaintiff was confused as lo which of the two accounts she had with the defendant she was pursuing the action on. 'fhe whole case, as seen from the statement of claim is based on the wrong billing of account number 1004~-M.44 whose owner was MJ Mulauzi and its meter number was 57110. However the details in the witness statement are clearly in respect of DUPLICATE account number 10079031 for JA Mussa whose meter number is " 138902. I do not know how the issue related to this account c;.une into contention deserving mention in the testimony of the plaintiff. 21. Indeed the plaintiff staled in cross-examination that the account number 10043444 had started having problems in 1997 and not in 2005. If we look at the balance sheet printouts lone exhibited by the plaintiff ;md the other by the defendant! it is clear that it is account number 10079031 that began experiencing problems in 2005, sp.ecifically on the first of May. On that day 28070 units were recorded against this account and were billed al Kl 72, 830.29. Prior Lo this, the bills never went beyond K500.00 and, to agree with the defence witness, the balance shccL does nol give an impression that the meter was actually been read prior to this elate. I am fortified in my underst.mcling by the fact that the columns for "READING" and "CONSUMP" do not have ;my figures from January 2003 up Lo first May 2005. On the contrary account number 10043444 seems lo have been perpetually in huge debt. It docs not even give me the impression that there was any consumption of electricity in respect of this account prior lo 1" April, 2006 as the columns for "READING" and "CONSUMP" do nol have any figures from December 2004 up to 1" April, 2006. 'The balance sheet starL<; from 1" December, 2004 so I cannot tell what happened prior Lo that dale. 22. As if this is not enough the plaintiff did nol sale which account belonged to which business premises. Ailhough an issue was nol raised by the defendant with this anomaly, I should point it oul that it }'Vas very important to the plaintill's case to distinguish the premises Lo which each account related. Is it that both accounts related lo the supply Lo the same premises? On the evidence there is nothing to show thus. If the accounts were in respect of the supply to diflcrcnt premises then she should have explained how the different businesses were affected on the basis of each account. 23. As it came out the testimony was without specifics as Lo what happened in respect to each account. In the end the plaintiff m;maged to confuse herself, the defendant and the Court. I ;un of the view that if she had concentrated on one accounl numbc~, or had it been that she had separated the claims, we would have had less trouble ;md she would easily have proved her case. Alas that. was nol what she did. 24. It was ,unid this confusion that the Court entered a judgment in respect of account number 10043444 when, in my view the claim and, subsequenliy, the judgment should have been in respect of account number 10079031 . 25. The L11ird observation is that although it seems the plaintiff intended Lo pursue claims on both accounts she did nol ,uncnd the statement of claim Lo reflect this desire. The end result is that she ended up confusing all of us in the exercise of assessment. I only began noticing Ll1is anomaly when the dcfendm1t brought its witness. Otherwise my initial impression was that we had been dealing with one account. 26. From now on I will concentrate on the issues reg,mling account number 1004341..4. The plaintiff claimed that electricity was disconnected from this account for a continuous period DUPLICATE of 8 years. The plaintill~ in cross-examination stated that she began having problems with the account in the year 1997 but that it was actually disconnected in 2005. She went on to say that she was noL reconnected until 2013. 27. Now this is an exaggeration. I do not know if the plaintiff was confused as to the dates clue to the cross-examination or she wanted to deliberately mislead this court. First of all both the statement of claim and Lhe witness statemenL do not refer Lo the date or period when electricity was disconnected. It was only when she was cross-examined thaL she attempted to recall as to when Lhe elecLriciLy was disconnected. This obviously leads Lo a situation where it would be difliculL to calculate Lhe period when the plaintilrs premises did noL have electricity. Secondly even at cross-examination she seems not Lo know exactly what she is saying. I must point out that the plaintiff impressed me as an intelligent person who could not easily fail to remember dates or periods within which events took place. But here I was disappointed. 28. Her case could not be helped either when she was forced to admiL that there were times within the eight year period that electriciLy was connected and disconnected on and off. At the s.une she denied that on certain dates clecLricity was actually connected as the debtors ledger report indicated. 29. However looki1;g at the evidence as a whole it seems Lo me that the electricity was disconnected sometime in August, 2005. T'hcre were on and off reconnections from this time up Lo J.umary, 2008 when the electriciLy was permanently reconnected alter n;1ediation following the commencement or this action. This is clc.u·ly acknowledged by the plaintiff through her counsel as shown in exhibit "D 1" and "D 2". I 30. The total period is two years .u1d five months. I will reduce the period by 2 months. I must point out that this reduction is incapable or being verified on the evidence available but as I pointed out earlier the plaintiff did acknowledge that at Limes the electricity was being reconnected on and off. It would therefore be unfair Lo penalize the defendant for total loss during the period. The actual period in which the plaintiff was wrongfully deprived or the electricity was therefore two ye,ffs and three months. 31. The plaintiff says she used Lo make a gross of K7, 000.00 per day from the rest house business as it was always fully booked. There was no much challenge Lo the plaintilrs testimony on this point although she failed to account for taxes which arc obviously payable on such a huge income. But in the absence or any contrary evidence I will not penalize the plaintiff in .u1y way. This tr.u1slates to K2, 555, OOO per year. She used to pay her workers wages .unounting Lo Kl, 200, 000.00 per year. Her net income for the ye.u· therefore ,unounted to Kl, 355, 000.00. I will thus award this amount for a period or 2 1/4 years. The total comes Lo K3, 648, 700.00. 32. The plaintiff said she used to mal(c between KI2, 000.00 to KI5, 000.00 per day from the restaur.u1t .u1<l si1ack businesses. The takings reduced to abouL K3, 000.00 Lo KS, 000.00 thereby making losses or about K9, 000.00 to KIO, 000.00 per day. For the reasons given - DUPI. JCATE above I will award K9,000.00 per day as there was no contrary evidence given. The total for the period comes to 7,391, 250.00. 33. Coming to the claim for sl,mder the plaintiff claims that by its conduct the defendant presented to the public thal she is a dishonesl person who could• not pay her bills. As a result the public began Lo shun her and her businesses thereby leading to the loss of her businesses. 34. In claims for slander the plaintiff ought to show actual d;.unage to her character as a result of the defendant's presentation. In this case the plaintiff m;.u1aged only to show that the conduct of the <lefcnd;.u1t affecled her business in that her customers stopped coming to patronize her rest house for lack of electricity ;.u1d not because they had negative view of her personality due Lo the defendant's conduct. Indeed from her testimony it is clear that her restaur;.u1t customers remained despite the disconnection. lL was only her reduced capacily that probably led the customers, especially those looking for products no longer available in the plaintiff's restaur;.u1t, to go elsewhere. 35. In the circumstances, I c;m only award a nominal Kl 00, 000.00. 36. Coming to the claim for the ;.unount wrongfully paid to settle the bills: my calculations from the accounl come to K169, 520.00. I award this sum. 37. On the issue of interest on this sum I direct that a proper assessment of interest do take place ;md iL accrues from January 2008. 38. The total award therefore comes to Kl 1,309,470.00 plus interest on the K169, 520.00. 39. I order thaL costs of these proceedings be for the plaintiff. 11.0. Since the defen<l;.mL is nol present for Lhe delivery of this order I further order the defend;.u1t should pay the aw;.u·cl within 21 clays after which the plaintiff shall be entitled lo execute. Delivered this _b! __ clay of __ ~ -------2017 @ CC Mata.pa Kacheche Assistant Registrar