China Jianxi Construction Corporation v Arthur Kunsanama (Suing as an Administrator of the Estate of Late Baird Maurice Kunsanama) (APPEAL NO 188/2018) [2019] ZMCA 340 (19 November 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) " APPEAL NO 188/2018 BETWEEN: CHINA JIANGXI CONSTRUCTION CORPORATION APPELLANT AND ARTHUR KUNSANAMA (Suing as an Administrator of the Estate of Late Baird Maurice Kunsunama) ROAD DEVELOPMENT AGENCY 1sT RESPONDENT 2 ND RESPONDENT CORAM: KONDOLO, MULONGOTI AND SIAVWAPA, JJA On 25th September and 19th November 2019 FOR THE APPELLANT: Mr. C. Sianondo of Messrs Malambo & C FOR TH E 1 ST RESPONDENT: Mrs. K. Kabalata of Chalwe & Kabalata Legal Practitioners FOR THE 2ND RESPONDENT: Not in attenda n ce J u D G M E N T SIAVWAPA, JA, delivered the Judgment of the Court. Cases ref erred to 1. Pinne r V Everett (1969) 3 ALL ER 257, Sussex Peerage (1843- 1845) (65 RP) 1 2. Minister of Information and Broadcasting Services and Attorney General v Fanwell Chembo SCZ Judgment No. 11 of 2 007 3. Minestone Zambia Limited v Stanley Ndandula Appeal No. 192/2012 1.0. INTRODUCTION This is an appeal against the Judgment of the Deputy Registrar on assessment. The Judgement on assessment dated 24 th September, 2018 flows from a consent order entered into by the parties on 26 th September 2017. The consent order shows that the 1st Appellant and the 2 nd Respondent, who were 1st and 2 n d Respondents respectively in the Court, accepted Judgment on admission. They also consented to the Judgment on admission being referred to the Deputy Registrar for assessment. 2.0. JUDGMENT ON ADMISSION 2.1. The record shows that the Judgment on admission was entered on all the claims as endorsed on the writ of summons and statement of claim. 2.2. The writ of summons and statement of claim contain the following claims; i. n. m w. v. Damages for trespass to property and unlawful digging. An order for payment of damages being compensation for the damage done to the property. Any other relief the Court may deem.fit Interest on the sum awarded Costs of and incidental to the action. 3.0. JUDGMENT ON ASSESSMENT 3 . 1. After assessing the evidence before him, the learned Deputy Registrar made the following awards; (a) Trespass to land K40, 000.00 (b) Refilling the excavated pits Kl00, 000.00 and gravel for re-filling Kl50, 000.00 3.2. The total sum awarded was K290, 000 .00 with interest to be shared at 60% to 40% between the Appellant and the 2 nd Respondent. Costs were to be shared equally between the two. There was also an order that the Appellant indemnifies the 2 nd Respondent. 4.0. APPEAL 4 . 1. Dissatisfied with some portions of the Judgment, the Appellant filed a Notice and Memorandum of Appeal on 12th October 2018 containing the following grounds of appeal; 1. The Court below erred both in law and in fact in awarding more than nominal damages when the area affected was less than one percent. 2. The lower Court erred both in law and in fact in granting K 40, 000. 00 as damages for trespass without considering that to effect operations on the less than one percent land permitted by law the 1st Defendant needed to have access to the said land. 3.(i) The lower Court erred both in law and fact in awarding the sums of Kl 00, 000. 00 for re-filling the excavated pits and also Kl 50,000.00 for gravel required to cover the affected portions when the said reliefs were not pleaded. J4 (ii) Trial Court below erred both in law and fact in awarding the sums of Kl 00, 000. 00 for re-filling the excavated pits and also Kl 50, 000.00 for gravel required to cover the affected portions when the same are a duplication. 4 (i) The Deputy Registrar erred both in law and inf act in apportioning 60% and 40% without assigning any reason for the same. (ii) The lower Court erred both in law and inf act in ordering that the 2 nd Respondent (2nd Defendant in the lower Court) be indemnified by the Appellant without any reasons assigned contrary to the law. 5 .0. FACTS 5 .1. The Appellant, a Road Contractor was awarded a road construction contract by the 2 n d Respondent. Without the permission of the 1st Respondent, the Appellant went on the 1st Respondent's land and started quarrying gravel for use in the construction of the road. 5.2 . The portion of the land on which the quarrying was done suffered degradation in form of destroyed flora and holes left after the excavation. 6.0. ARGUMENTS 6.1. The Appellants filed arguments in support of the grounds of appeal. JS 6 .2. In ground one, the argument 1s that the award of compensation for damage to the land should have been restricted to nominal damages because the portion of land damaged was less than 1 % of the en tire land or a quarter of a hectare. For this argument, the Appellant has relied on Section 48 of the Public Roads Act No. 12 of 2002; in particular Sub Sections (1), (4) and (7) which are reproduced in the heads of argument. In a nutshell, Sub-Sections (1) and (4) give licence to a road authority (RDA) or any entity authorized by it (Road Construction Company) to enter upon any land and to take material necessary for construction, maintenance or road repair. Such entry and extraction of material shall be without compensation to the land owner except where the land so used exceeds 1 % or a quarter of a hectare. 6.3. In ground two, the argument is that since the Appellant had to access the land in order to obtain the road construction materials, there could be no damage for trespass in view of the argument in ground one that no compensation 1s payable where less than 1 % or a quarter of a hectare 1s used. J6 6.4. In ground 3, it is argued that the award of Kl00,000 and Kl50,000 for refilling the excavated pits and for gravel respectively is duplication of award more so that no claim for land restoration was made in the pleadings. 6.5. In ground 4 which is sub-divided into two, it is argued that the learned Deputy Registrar should not have apportioned the awards between the Appellant and the 2 nd Respondent without disclosing the reasons. The second part of the argument is that the learned Deputy Registrar should not have ordered indemnification without assigning a reason for it. For this argument Sub-Section (7) of Section 48 and Section 50 of the Act were relied upon in so far as they assign liability to pay compensation to the Road Authority. In pushing the argument further, the Appellant relied on a number of authorities which speak to the rules of statute interpretation to the effect that the natural and ordinary meaning of words or phrases ought to be used unless absurdity would result. Among the authorities cited are Pinner v Everett (1969) 3 ALL ER 257, Sussex Peerage1 and Minister of Information and Broadcasting Services and Attorney General v Fanwell Chembo2 to cite but a few. J7 7.0 . OUR DECISION 7 .1. We have taken great care to consider this appeal in light of the Judgment of the Court below and the arguments in support of the grounds of appeal. 7 .2 . We shall consider grounds one and two together because they both seek to persuade us to read Section 48 of the Public Roads Act No. 12 of 2002 as granting unfettered power to a Road Authority to enter upon any land for purposes of collecting materials necessary for road construction . 7.3 . We have taken particular note of Sub-Section (1) which is couched in the following terms; "A road authority, or any person duly authorised by it, shall at all times have the power to enter upon any land, except within the boundaries of a local authority area, and to take from there any material including water, other than water from an artificial dam, well or borehole except with the consent of the owner, necessary for the construction, maintenance or repair of roads or proposed roads and for providing in connection there with labour camps, access roads and space for stock piling and no compensation shall be payable except as provided in this Section." 7.4. We have however, noted that the Appellant conveniently skipped S u b-Section (2) in its arguments and went to Sub- J8 Section (4) which provides for circumstances under which compensation is payable. It is however, the reading of Sub-Section (2) which provides guidance on how a road authority can take benefit from Su b-Section (1) . We reproduce it h ereunder for ease of reference; "(2) Whenever a road (authority) considers it necessary to exercise the powers conferred by Sub-Section (1), it shall, after prior consultation with the owner, (underlining ours for emphasis) select any place or places which it may consider suitable from which to take material." 7 .5. It is ou r considered view th at Sub-Section (2) places a restriction on how a road authority may exer cise the powers conferred upon it by Sub-Section (1). It follows therefore, that a road authority cannot exercise the powers conferr ed upon it by Sub-Section (1) unless it has held prior consultations with th e owner of the land. It is the absence of such prior consultation that renders the entry in the case herein a trespass. A road authority or its agent cannot avail itself of the privileges under Sub-Section 1, without consulting the owner. I 8.0. COMPENSATION 8.1. The Appellant has argued that the 1st Respondent would have qualified for compensation if the area excavated had been in excess of the limits permitted under Sub-Section (4). We however, state here that Sub-Section (4) could only come into view if Sub-Section (2) had been complied with. The Appellant's default was its failure to comply with Sub Section (2) rendering its entry and activities upon the 1st Respondent's land illegal, giving rise to the tort of trespass. 8.2. The end result is that both the entry and the quarrying were illegal and in view of the fact that trespass to land is a tort actionable per se, we would find no cause to reverse the learned Deputy Registrar as he was on firm ground to find that a trespass had been committed. 83. It also follows that the argument for nominal damages must fail to the extent that there was actual loss suffered by the 1st Respondent as a result of the Appellant and the 2 n d Respondent's unlawful conduct. The normal measure of damages therefore, applies contrary to Mr. Sianondo's argument that awarding anything above nominal damages is tantamount to exemplary damages which was not specifically pleaded. JIO 9.0. ASSESSED ON HEADS NOT PLEADED 9.1. This objection is argu ed in gr ound three with the contention being that refilling the excavated pits and gravel to cover the affected portions were awarded on assessment not withstanding that the two heads were not pleaded. We note from the Judgment on assessment that the two h ead s carried the bulk of th e total amount awarded as the two h eads account for K250, 000.00 of the total K290, 000.00 awarded. 9.2. We h ave examined th e writ of summons and statement of claim and we find neither of the two heads in there. To buttress his argumen t, Mr. Sianondo h as reproduced, in the skeleton arguments, a lengthy extract from the case of Minestone Zambia Limited v Stanley Ndandula3 . We will not reproduce the entire extract but we will instead just pick-out a portion that speaks to the argument proffered by Cou nsel in ground three. "The Respondent was bound by his pleadings and he could not, at the point of assessment, introduce new claims that the trial Judge had no opportunity to adjudicate upon." JI I 9 .3. The import of the above statement is that the Registrar has no authority to assess a claim not pleaded and neither can he award a benefit not granted by the Judge. 9.4. In the case of a consent order or Judgment as was the case in the matter before us, only orders or awards contained within the consent Judgment are capable of being subjected to assessment. 9.5. In the consent order before the learned Deputy Registrar, the parties consented to entry of Judgment on admission. The admission relates only to the pleaded claims and the remedies thereof as set out in paragraph 2.2 of this Judgment. The learned Deputy Registrar therefore, went outside his mandate on assessment when he assessed the two heads which were not pleaded thereby not forming part of the Judgment on admission consented to by the parties. We are, inclined to allow this ground of appeal but only in so far as it awards for refilling and gravel which were not pleaded. 10. 0. THE ASSESSMENT 10.1. We have noted however, that in his assessment, the learned Deputy Registrar did not award anything for the actual damage to the land as pleaded under (b) of the statement of claim. This was an error on the part of the learned Deputy Registrar in view of the admission of liability to all the pleaded claims. The learned Deputy Registrar was duty bound to consider all the claims and what fell to be assessed was the quantum on each claim. 10.2. It is therefore, our considered view that had the learned Deputy Registrar not substituted the pleaded claims for the two un-pleaded claims, he was bound to assess the quantum of damage under (b). We accordingly take the liberty to transfer the quantum awarded under the un-pleaded claims to the claim under (b) and collapse the two into one amount of K250, 000.00. The total amount assessed by the Deputy Registrar therefore, remains the same. 10.3. In arriving at the above, decision, we also took into account Section 48 (ii) of the Act which makes it mandatory for Road Authority to fill the pits excavated. In this case, the Appellant did not fulfil that obligation by which reason, the 1s t Respondent will be put to great expense. The assessment under (b) will mitigate the loss and damage caused. 11. 0. APPORTIONMENT OF LIABILITY 11.1 In the Judgment the learned Deputy Registrar decided to apportion liability on a 60 to 40 percent basis between the Appellant and the 2 n d Respondent. He however did not • reveal the basis for that apportionment. 11.2. Ground 4 attacks that decision and we agree with the Appellant because quite apart from the failure to assign any reason for it, it is clear from the consent order that the two parties admitted liability in full . It follows, logically that the liability must be borne in equal shares by the two. Further, it is clear that, in the same way the order was made for the parties to share the costs equally the liability could not be shared unequally. We would therefore, allow ground 4 and instead order that the awarded amount with interest be paid by the parties in equal portions. 12. 0 . INDEMNITY 12. 1. The learned Deputy Registrar made an order that the Appellant should indemnify, the 2 nd Respondent and grounds 5 attacks that order. As stated in the preceding paragraph, both parties admitted liability. Indemnification arises where the principal, in a relationship of principal and agent suffers liability for the negligence or other default of the agent. This is a form of insurance against liability granted by one party to the other. This however, more often than not must be provided for in a contract. J 14 • There is nothing on record to show that the contract contained an indemnity clause in favour of the 2 nd Respondent. 12.2 . The Appellant has however, argued that the law places liability for compensation on the road authority and not the contractor. In that regard, we were referred to Sections 48(7) and 50 of the Act. 12.3. We have carefully considered the referred to prov1s10ns of the law and we agree that Section 48(7) ascribes liability to pay compensation. However, since that provision is in addition to the liability under Sub-Section (4) we note that the compensation therein 1s specific to damage or destruction to improvements on the land. 12.4. It is further noted that whereas Sub-Sections (4) and (7) are specific to the road authority, it must be had in mind that the same obligations and liabilities attaching to it, also attach to 'any person duly authorised by it' as provided for at the beginning of Section 48(1). 12.5. This position is also clearly stated in Section 50 of the Act which states as follows; "The rights granted to and the obligations of a road authority under the provisions of Sections twenty-nine, forty-two, forty-eight and forty-nine may be exercised by a contractor under the supervision or direction of the road authority engaged in the construction or repair of roads and on behalf of any road authority." We are however, at a loss as to the proviso to Section 50 which has been produced by the Ap pellant in the h eads of argument as follows; "Provided that in the case of any damage done by a contractor, any compensation payable under this Act shall be paid by the road authority concerned." 12.4. Our keen scrutiny of the Section and the entire Act has revealed no such proviso unless th ere is an amendment to Act No. 12 of 2002 which has not been brou ght to our attention. But be that as it may, even if we were to assume that the Act places no liability on a contractor, the Appellant is bound by the consent order by wh ich it consented to entry of J u dgment on admission. The Appellant seems to be raising arguments in an attempt to extricate itself from liability which it voluntarily admitted and consented to. Jl6 • 13. 0. CONCLUSION 13.1. We have noted from this appeal that there is an attempt to overturn the learned Deputy Registrar on substantive issues rather than the quantum as awarded on assessment. This assessment was premised on a consent order which embodied a Judgment on admission. It follows therefore, that the only legitimate questions to be raised are those relating to quantum and the heads awarded in relation to the pleadings. 13.2. It is therefore, futile to attempt to deny liability on the claims pleaded and awarded as that was settled by consent and where the consent has not been challenged, liability stays where it is. In this case, both the Appellant and the 2 nd Respondent share the liability for the claims pleaded and for which they consented to Judgment on admission. 14.0. OUTCOME 14.1 For the reasons stated above, the appeal herein is dismissed to the extent that the allowed grounds of appeal do not affect the decision in the Court below in a material way. The Appellant and the 2 nd Respondent shall pay the assessed sum of K290, 000.00 with the awarded interest in equal shares as well as the costs ordered in the Court below. J 17 • Costs in this Court shall be for the 1st Respondent payable by the Appellant and to be taxed in default of agreement. ----------- :::::::----,. ~ '--- M. M. KONDOLO COURT OF APPEAL JUDGE .. J. Z. MUL COURT OF APPEAL JUDGE ................... 1 ............... . M. J . SIAVWAPA COURT OF APPEAL JUDGE