Chingulira Ltd and Anor v Tundwe Farms Ltd (Appeal 48 of 1986) [1987] ZMSC 52 (15 September 1987)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 48 OF 1986 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN. CHINGULIRA LIMITED Appellant and CAREL JOHANNES VILJOEN 1st Respondent (Operating as Rusting Farm) and TUNDWE FARMS LIMITED 2nd Respondent CORAM: Silungwe, C. J., Gardner and Sakala JJ. S 11 March and 15 September 1987 For the Appellant : Mr. Malik of Messrs Cave, Malik and Company For the Respondents : Mr. Sakala of Messrs J. B. Sakala and Company JUDGMENT Sakala, J. S. delivered the Judgment of the court. For convenience, we jfill refer to the appellant as the plaintiff and the respondents as the defendants. The plaintiff, Chingullra Limited , by a specially endorsed writ, sued the defendants for the return of 300 cows, 100 heifers, 100 steers, 15 bulls and 150 cows and their issue after the 15th of April 1981 and damages for their detention. The plaintiff also claimed an injunction to restrain the defendants whether by themselves, their agents or servants or otherwise whosoever from selling or disposing of the said cattle. The plaintiff obtained judgment under Order 13 for the return of the animals set out in the writ and their issue, and damages for their detention to be assessed in default of agreement. The record discloses that there had been unsuccessful applications to set aside that judgment. It also shows that by consent the parties had obtained an order for inspection of the cattle and some farming implements. " ur - It is not clear from the record whether the inspection was carried out but the judgment obtained under Order 13 was amended and the matter adjourned for assessment of damages. At the hearing of the summons for assessment of damages, the plaintiff adduced evidence from two witnesses, Mr. B. R. Brigham and Mr. S. Straun, PWs 1 and 2 respectively. The record reveals that before the cross-examination of PW1, the court made a consent order that the parties submit in writing a calculation of the value of the animals. It is also not clear whether this order was complied with as no written calculation of the value of the animals is on record. At the close of the plaintiff's case, counsel for the defendant introduced in. evidence, through PW1, a document purporting to be an agreement between the parties concerning the animals and implements the subject of the claim. It muit be mentioned that counsel for the plaintiff then objected to its being introduced in evidence at that stage. The objection was over-ruled. The document was produced and marked as exhibit D1. The defence adduced evidence from one witness, namely, Mr. C. J. Viljoen. At the close of the defence case, both parties made very brief submissions. The learned District Registrar entered judgment in favour of the plaintiff in the sum of K332.400 as the value of the plaintiff's animals. The plaintiff was also awarded general damages in the sum of K180.965.30, less tax. Judgment was also entered in favour of the defendants in the sum of K200.000.00 being the value of undelivered machinery; and K5,100 for labour and expenses of keeping the animals. The plaintiff filed a notice of appeal against the whole of the District Registrar's judgment. Subsequently, the plaintiff filed a notice of withdrawal of appeal. However, the application to withdraw the appeal was refused by a single judge of this court as the consent of the parties to withdraw the appeal in terms of Rule 63 (3) had not J3 - been obtained. This meant that the plaintiff's appeal remained on record as the plaintiff's purported withdrawal of his appeal was a nullity. The single judge allowed the defendant to continue with the cross-appeal. Despite the order by the single judge, the plaintiff did not file a memorandum of appeal. The defendants cross-appealed against part of the District Registrar's judgment. The grounds of the cross-appeal as set out in the notice read as follows: (1) that the learned District Registrar erred in ruling that the value of the indellvered equipment was K200,000 only; (2) that the learned District Registrar erred In entering judgrent In favour of the plaintiff in the sun of K332.400 as the value of the plaintiff's animals; (3) the learned District Registrar misdirected himself in rejecting the defendants contention that the plaintiff had agreed that he, the plaintiff, expected not more than K250,000 for the whole deal. In arguing the appeal on behalf of the plaintiff in this court, Mr. Malik asked for leave to dispense with the memorandum of appeal. He submitted that the learned District Registrar had erred and misdirected himself in entering judgment in favour of the defendants in the sum of <200,000.00 for the undelivered equipment; having correctly assessed the value of the cattle. He contended that there should have been a counter-claim or different action by the defendants to claim the value of the undelivered equipment. He submitted that in the present action the District Registrar had no jurisdiction to enter judgment in favour of the defendants. Mr. Malik further argued that there was no evidence to suggest that the offer contained In exhibit D1 was executed. He urged the court to set aside the sum of K200,000.00 entered in favour of the defendants. On behalf of the defendants, Mr. Sakala asked the Court to dismiss the appeal for failure to prosecute It, there being no valid memorandum of appeal. He strongly objected to the application for leave to dispense with the memorandum of appeal. J4 - Turning to the cross-appeal, counsel submitted that the figures used by the District Registrar were the very maximum and, therefore, unfair. He contended that it was inconceivable that all the 300 cows could have been of the same weight. He submitted that the averaging of the 300 cows to be of the same weight was erroneous. Counsel further contended that while Mr. Brigham gave oral evidence on oath and was an expert, the learned District Registrar opted to disregard his evidence but instead accepted the affidavit evidence of a Mr. Whittemore who was not present to give evidence and whose affidavit was not served on counsel for the defendants. Counsel submitted that the method of calculation on which the District Registrar relied provided for in the affidavit evidence of Mr. Whittemore was not available to the defendants. He submitted also that the labour costs and other expenses incurred by the defendants as found by the District Registrar were totally Inade­ quate in the light of the evidence given by the defendants. Mr. Sakai a urged the court that since the evidence of Mr. Whittemore was not on record and since he was not cross-examined and in the light of the District Registrar having heavily relied on that evidence, the Court should order that the parties should work out a mutual formula of calculations. In reply to the arguments in the cross-appeal, Mr. Malik submitted that there was no evidence before the District Registrar apart from the evidence of Mr. Viljoen. He further contended that there were no figures provided to contradict the figures placed before court by the plaintiff. He submitted that the District Registrar had the benefit of an expert, Mr. Brigham, who had given viva voce evidence. Mr. Malik contended that it was no disadvantage to the respondent that the District Registrar used Mr. Whittemore's affidavit as opposed to Mr. Brigham's evidence since the figures as given by Mr. Whittemore in his affidavit and those testified by Mr. Brigham in his oral evidence were substantially the same. He submitted that this Court should be J5 - disinclined to reverse the District Registrar on the amount of damages simply because it would have given a lesser sum. He urged the Court to dismiss the cross-appeal. The appeal and the cross-appeal are both against the District Registrar's assessment of damages in as far as the same effect the respective parties. At this juncture, we wish to indicate that in the interest of justice, Mr. Malik's application for leave to dispense with the memorandum of appeal is granted as prayed. The issue before the District Registrar was one of assessment of damages for the return of the cattle and their issue and damages for the unlawful detention. From the facts of the case, we agree with Mr. Malik that there was no basis upon which the District Registrar awarded the defendant the sum of K200,000.00; there having been no counter-claim and there having been no judgment entered on the counter­ claim. We, therefore, set aside the award of K200.000.00 made in favour of the defendants. This conclusion takes care of Mr. Sakala's complaint against the inadequacy of the award of K200,000.00 as the value of the undelivered equipment. We must also add that we agree with -Mr. Malik that there was no evidence suggesting that the purported agreement contained in exhibit DI had ever been executed. The other complaint on behalf of the defendants in the cross­ appeal relates to the award of K332,400.00 as the value of the plaintiff's animals. We pointed out earlier that the order in respect of the Inspection of the animals and the consent order to submit in writing calculation of the value of the animals were not complied with. We are satisfied that, had both orders been complied with, the assessment by the District Registrar would have been simplified and some of the complaints in the cross-appeal would not have arisen. The argument on behalf of the defendants as regards the award for the value of the animals was that the figures used in the assessment by the District Registrar were the very maximum and, therefore, not J6 - fair as all the animals would not have had the same weight. The argument was further to the effect that the District Registrar in his assessment ignored the evidence given in court by Mr. Brigham but instead relied on the affidavit evidence of Mr. Whitemore which affidavit was not available to the defendants and Mr. Whittemore himself was not cross-examined on his affidavit. We wish to observe that the only evidence of figures In relation to the value of the animals was adduced by the plaintiff's witnesses only. The affidavit of Mr. Whittemore which we have had the opportunity to examine and which is on record, was on behalf of the plaintiff. Thus, the disregarded evidence and the affidavit evidence in relation to the value of the animals was all adduced on behalf of the plaintiffs. The defendants did not contradict that evidence by producing figures to the contrary. We are not in a position to explain how Mr. Whittemore's affidavit should be on record but not available to the defendants. Mr. Malik on the other hand contends that it was no disadvantage to the defendants that the District Registrar based his assessment of the value of the animals on the affidavit evidence of Mr. Whittemore as opposed to the oral evidence of Mr. Brigham. We have very carefully looked at Mr. Whittemore's affidavit evidence as well as Mr. Brigham's oral evidence. We note that going by the evidence of Mr. Brigham, the value of the animals is much less than going by the evidence of Mr. Whittemore. The value of the animals, according to the award of the District Registrar based on the evidence of Mr. Whittemore, Is over K332.000.00 while a simple arithmetical calculation using Mr. Brfgftam's evidence shows that the value of the animals would be about K127,000.00. On these figures, we are satisfied that by relying on the affidavit evidence of Mr. Whittemore which had not been available to the defendants, the defendants were disadvantaged. In our view, the situation may well not have arisen had the parties complied with both orderes of the court. J7 - In the light of the substantial differences in the net awards of the value of the animals, we are of the view that, by ignoring the evidence of Mr. Brigham and accepting Mr. Whittemore's affidavit evidence, the defendants were prejudiced in their case. For this reason, the cross-appeal on the award in relation to the value of the animals is allowed. We order that the Issue of the value of the animals be re-heard by the District Registrar : to afford the parties an opportunity to cross-examine the witnesses that may be called. In the result, both the appeal and the cross-appeal succeed in part. This being the case, there will be no order as to costs. A. M. Silungwe CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE