BP. Zambia PLC v J.C Bousifield Limited & Madison Insurance Company Zambia Limited (Appeal 169 of 2004) [2007] ZMSC 56 (4 April 2007)

I IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) APPEAL NO. 169 OF 2004 BETWEEN: BP ZAMBIA PLC AND APPELLANT J. C. BOUSIFIELD LIMITED 1ST RESPONDENT MADISON INSURANCE COMPANY ZAMBIA LIMITED 2ND RESPONDENT CORAM: (cid:9) SAKALA, CJ, SILOMBA AND MUSHABATI, JJS On the I st November, 2005 and 4 1April, 2007. For the Appellant: (cid:9) For the 1 Respondent: (cid:9) d Respondent: (cid:9) For the 2 Mr. A. J. Shonga, Shamwana and Company Mr. Mosha, Chilupe and Company N/P JUDGMENT SILOMBA, JS, delivered the judgment of the court. Case referred to: 1. (cid:9) Collet -Vs- Van Zyl Brothers Limited. The delay in the delivery of the judgment is deeply regretted. The appeal is against the judgment of the High Court dated the 11th day of June, 2004. The facts giving rise to the appeal were that the truck and trailer, registration number AAM 6226, belonging to the respondent, was involved in a road traffic accident with the vehicle of the appellant on the 15th of June, 1996. The respondent's truck and trailer was, at the time, carrying a load of 40 tonnes of concentrates and was being driven along Masangano road in Luanshya. The truck was left hand drive. J2 As the driver of the truck (PW1) reached a bend of Masangano road, after a steep ascent, he saw a very fast on-coming motor vehicle, with lights on, cruising in the opposite direction. At the time, because of the steep ascent, PWI was driving in the 5th gear (the truck had ten gears) and was doing 50 K. P. H. As he took the bend towards his left side, he heard a bang on the right hand side of the truck. The result of the impact was that his passenger died. The truck, that was actually on the left lane at the corner or bend that curved towards the left side, was found in the bush on the opposite side of the road because, according to PW1, the front axle was ripped off and the front right hand tyre burst. With regard to the value of the damaged truck, the respondent's evidence was not categorical enough. It was believed to be around US $65,000. The truck was imported as a second hand vehicle. On the claim for loss of business, again the evidence was not categorical but it was put at between US $8,000 to 20,000 per month. On the cause of the accident, the evidence of the traffic section of the Zambia Police Service was that the driver of the vanette, an employee of the appellant, left his lane to go and hit the truck on the other side of the lane, forcing the truck to go off the road on to the other side. There was no oral evidence from the appellant even though it had denied liability. The evidence, which was tendered before the trial court and which was relevant to the proceedings, came from Madison Insurance Company Limited (hereinafter to be called "Madison Insurance"), the 2nd defendant in the lower court. The trial court heard from Madison Insurance that the appellant had a third party policy with the insurer; that the policy did not cover loss of business but that if the appellant had admitted liability the J3 1st respondent would have been paid the maximum of K10,000,000 for the damaged truck. The foregoing evidence was evaluated by the learned trial Judge thoroughly. The evidence, according to the learned Judge, established that the accident was as a result of the appellant's driver's negligence when he failed to keep to his lane, went to the lane of the on-coming truck and crashed into it. Since the motor vehicle of the appellant was being driven in the course of the driver's employment, the learned Judge held the appellant liable vicariously for the torts committed by its servant. On the claim for damages, the learned Judge awarded the respondent the sum of US $65,000 for the loss of the truck. On loss of business, the matter was referred to the learned Deputy Registrar for assessment. Since the appellant was found liable, Madison Insurance was ordered to pay K10,000,000, being the sum it was liable to pay on the full third party policy with the appellant. There are two grounds of appeal that were argued before us. These are as follows:- 1. 2. That the learned trial Judge erred in law and in fact when she ordered that the respondent should recover the sum of US $65,000 from the appellant when there was no evidence tendered to support such finding. That the learned trial Judge erred in law and in fact when she ordered that costs for the 2 defendant be borne by the appellant. Both the appellant and the 1st respondent have filed their written heads of argument. There are no heads of argument from the 2nd respondent but when we heard the appeal, Mr. Shonga, counsel for the appellant, told us, at J4 the outset, that he had spoken to Mr. Mumba Mailila, Attorney General, then counsel for the 2nd respondent, about the appeal; that Mr. Malila assured him that he would be bound by the decision of the court. Accordingly, the court dispensed with his attendance and decided to proceed with the hearing of the appeal. The record shows that Madison Insurance was not made a party to the appeal according to the notice of appeal. However, taking into account what Mr. Shonga told us and the fact that the second ground of appeal is directed at Madison Insurance, we decided to include it as the 2nd respondent in the appeal. On ground one, Mr. Shonga told the court that he had fruitful discussions with Mr. Mosha, counsel for the 1st respondent and because he had conceded to his suggestion, their combined approach was that the court should order the assessment of damages due to the (cid:9) respondent as a result of the damage caused to its truck by the employee of the appellant. Mr. Shonga said that they had not agreed on costs; they thought that this was a matter that was best left to the discretion of the court. Mr. Mosha had nothing to add; he simply agreed with the submission of Mr. Shonga. From both the oral submission and the heads of argument relating to ground two, the appellant's bone of contention was that the learned trial 2nd respondent be borne by the appellant. Mr. Shonga argued that such a finding did not amount to a Judge erred in directing that costs incurred by the judicious exercise of the learned trial Judge's discretion. While Mr. Shonga acknowledged that the awarding of costs lay in the discretion of the court, he submitted that the discretion should never be used arbitrary to defeat the ends of justice. The case of Collet -Vs- Zr! Brothers Limited " was called in aid. J5 Mr. Shonga referred the court to the statement of claim in the supplementary bundle of documents and pointed out that it did not raise any cause of action against the 2nd respondent and yet there were no steps taken by the 2'' respondent to disjoin itself from the proceedings. As far as he was concerned, the 2nd respondent chose to remain in the proceedings at its own peril. There were no submissions from the 1st respondent because the second ground of appeal did not concern it. We have carefully considered the record of the proceedings in the court below, including the judgment of the learned trial Judge, the . submissions made before us by counsel and the written heads of argument. Our reaction to the combined approach by counsel under ground one is that the award of US $65,000 was arrived at in the absence of documentary evidence or indeed any other evidence. We, therefore, agree with the approach taken and order that the quantum of damages occasioned to the Vt respondent's truck be assessed by the learned Deputy Registrar. The assessed amount should reflect, as far as possible, the value or values of the damage at the time of the accident. The order of the learned trial Judge, awarding the 0 respondent the sum of US $65,000 is quashed. To that extent, ground one is allowed. On ground two, we note from the writ of summons that the 2nd respondent was brought into the proceedings by the 1 respondent because of the third party insurance policy it had with the appellant. Under the third party insurance, the liability of the 2nd respondent was up to the maximum of K10,000,000. This is the amount the appellant would have claimed from the 2nd respondent upon being found liable. In our considered view, the claim did not depend on the 2nd respondent being a party to the proceedings. (cid:9) (cid:9) J6 In the circumstance, we find that the lower court's order compelling the appellant to pay the costs incurred by the 2nd respondent was not justifiable. At best, it is the 1st respondent, which should have been ordered to pay the costs of the 2 d respondent for dragging an innocent party into the proceedings. To that extent, we allow ground two and set aside the order of the lower court, ordering the appellant to pay the costs of the 2nd respondent. The appellant has succeeded on both grounds of appeal but we are not ordering any costs. Each party to bear its own costs. This is so because ground one was by mutual consent between the appellant and the 1st respondent that the quantum of damages be assessed by the learned Deputy Registrar while ground two was directed at the 2nd respondent. E. L. Sakala, CHIEF JUSTICE. S. S. Silomba, (cid:9) SUPREME COURT JUDGE. (cid:9) C. S. Mushabati, (cid:9) SUPREME COURT JUDGE. -