Chrismar Hotel Ltd v Cavmont Insurance Corporation Ltd (Appeal 116 of 2008) [2010] ZMSC 10 (21 September 2010)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT (Civil Jurisdiction) LUSAKA BETWEE N: APPEAL NO. 116 OF 2008 CHRISMAR HOTEL LIMITED AND CAVMONT INSURANCE CORPORATION LIMITED APPELLANT RESPONDENT CORAM: Chirwa, Silomba On the 16th February JJS and 21st September, and Chibomba, For the appellant: For the Respondent: Mr. P. Chungu of Ranchhod, Mr. S. Lungu and Ms. N. Nachalwe Company Chungu Advocates and of Shamwana J UDGMENT SILOMBA, JS, delivered the judgment of the Court. Cases referred to:- 1. Nkhata and Four Others -Vs-The 2. Justin 3. Attorney 4. Maamba Collieries Chansa -Vs-Lusaka City Council, -Vs-Kakoma, -Vs-Godfrey General General ZR, 147. SCZ Appeal No. 29 of 2007. ZR, 212. (1975} Mudenda Ng'andu, Attorney (1966} SCZ Appeal No. 8 of 2005. In this appeal, the Appellant is appealing against the judgment of the High Court dated the 16th of April, 2008 in which the learned trial Judge, sitting at Lusaka, dismissed claims for US $250,000.00 and loss of business in the sum of K8,350,000.00 from the Respondent, as the insurer of the Appellant's bus, following a road traffic accident in which the bus was damaged. J2 The facts not in dispute were that on the 4th of May, 2005 the Appellant and the Respondent signed a contract of insurance for the insurance of the Appellant's fleet of buses in which the Respondent undertook to indemnify the Appellant in the event of an accident, loss and/or damage to the insured buses. On the 2ih of June, 2005, a scania marcopolo bus Registration No. ABC 7883 was involved in an accident with another vehicle and the Appellant's bus was extensively damaged in the accident. Following the accident, the Appellant lodged a claim with the Respondent, which the latter refused to honour on the ground that the bus was being driven by an unlicensed person at the time of the - accident. To support the claims against the Respondent, the Appellant called three witnesses, whose statements are part of the record of appeal. The first witness was Harry Vaiden Findlay (PWl), the Appellant's Managing Director. His position in the witness statement confirmed the existence of an insurance policy with the Respondent covering the Appellant's fleet of buses against loss of, or damage to any of the insured (f No. ABC 7883, was insured He deposed 9 proceedings, PWl notified buses. According to the insurance policy, the bus, registration for US $250,000.00. that on the 2ih of June, 2005 the bus, the subject of the was involved in a road traffic accident in Solwezi. Consequently, the Respondent and provided the requisite documentation to facilitate the settlement of the claim. PWl deposed that despite the Appellant providing the requisite documentation for the processing the of the claim, Respondent, in breach of its undertaking to facilitate the settlement of the claim within fourteen working days, did not settle claim. the Appellant's J3 PWl further deposed that on the 10th of April, wrote 2005, the Respondent the Appellant for a police report on Form 75A instead of an earlier police report from the Zambia Police in Solwezi, PWl also which it found to be unacceptable. disclosed in his witness statement that in September, 2005 he was shocked to hear that the Appellant's driver, Simon Chulabantu, by the had been detained police on a charge of manslaughter for giving an unauthorized person, namely, Simon Phiri, to drive the bus that was involved in the accident. According to PWl, he was shocked to hear that because Simon Phiri held a valid PSV driving licence as an employee of the Appellant and as an Assistant to Chulabantu. PWl further deposed that he was later told by Chulabantu that he had been taken by the police to Ngonga Motel in Solwezi where he was tortured and made to sign a police statement to the effect was not the that he (Chulabantu) driver of the bus at the time of the accident. With this development, PWl became suspicious, in particular that the investigations were being conducted by police officers from Lusaka. His suspicion was confirmed when the Respondent produced a police report dated the 4th of October, 2005 confirming that the driver of the bus at the time of the accident was Simon Phiri, thereby contradicting the police report earlier which indicated 9 When PWl was cross-examined would not be liable. the Respondent licensed that Simon Chulabantu was the driver. he testified that if the driver was not He reiterated his earlier evidence in the witness statement that Simon Phiri had a valid driver's licence and when he was shown Simon Phiri's PSV licence the witness said that he did not know what Class 'C' licence stood for. His testimony was that he was not aware that Class 'C' PSV licence did not entitle Simon Phiri to drive a marcopolo bus but light trucks and small mini buses. Further, that he did not know that, that type of bus J4 fell in category 'CE' and whether Simon Phiri was not licensed to drive it. The witness's testimony was that he sent one of his workers to the scene of the accident; that while there he was not told who was driving the bus at the time of the accident and that the police report he received that did not indicate Simon Phiri was the driver but Simon Chulabantu. PWl conceded that the Respondent was �ntitled to undertake its own independent investigations on the accident. He also conceded that there was a possibility that Simon Phiri could have driven the bus at the time of the accident. The second witness for the Appellant was Eddie Kaumba Samakayi (PW2), Principal Officer and Chairman of Fidelity Insurance Brokers His Limited. evidence in chief, as contained in his witness statement, was that he acted as an insurance broker for the Appellant to negotiate terms of insurance policies with respective insurance companies and to attend to all insurance related matters, including processing and handling of all insurance claims on behalf of the Appellant. e With regard to the difficulties the Appellant had in securing payment, PW2 deposed that the request from the Respondent for the Appellant to provide - it with a police report on Police Form No. 75A was neither in line with insurance policy conditions nor was it specified in the insurance policy agreement entered into between the two parties; that it was not standard practice to limit and restrict the submission of a police report only on Form No. 75A for insurance claims. As far as PW2 was concerned, the police report submitted by the Appellant to the Respondent on the 14th of July, 2005 contained all the requisite information necessary to complete the claim settlement. JS PW2 further disclosed in his statement that in an attempt to resolve the issue he and PWl met Mr. Chima mu, an employ�e of the Respondent, on the 22nd of August, 2005 who assured them that the Respondent would respond to their request in due course but it failed never to do so. At this stage the Respondent pointed out to PW2 or to the Appellant in the police that there were irregularities report sent to it on the 14th of July, 2005 by the Appellant or that the information the Appellant provided was inconclusive. not In the circumstances, PW2 could e understand the basis for the Respondent's procrastination as the insurance policy did not require a declaration by the Appellant of any specific drivers for any of its insured buses. When PW2 was cross-examined, he testified that he was engaged at the point when the Appellant failed to get a response from the Respondent insurance company. He conceded that sometimes there were delays in settling and claims that it was not unusual for an insurer to fail to settle a claim within fourteen working days provided a reason was given for the delay. In his witness stated 9 the Appellant, drove a scania statement, Simon Chulabantu (PW3), the driver employed by that after loading passengers on the 2th of June, 2005 he marcopolo bus, Registration No. ABC 7883, from Solwezi bus stop 9 to Lusaka in the company of Simon Phiri (co-driver) and Alfred Chewe, conductor. When PW3 reached a curve near Solwezi River bridge, a collision occurred involving his bus and a Leyland bus, Registration No. ACH 1404, which was coming from the opposite direction. Thereafter, PW3 was unconscious and only woke up in Kitwe General Hospital with a lot of pain as a result of serious head and chest injuries. While he was still in Kitwe General Hospital, PW3 gave a statement to a police officer from Solwezi Police Station on the th of July, 2005 and on the 13th J6 of July, 2005 he reported to Solwezi Police Station where he was arrested and charged with the offence of causing death by dangerous driving. PW3 further stated in his witness statement that when he returned to Solwezi he attended an identification parade where a lady passenger identified him as the driver of the bus that was involved in the fatal road traffic accident. He later came to know the lady by the name of Ziyaye, a police officer. The witness deposed that on �he 13th of August, 2005, while in Solwezi, he made another statement to the police and was later interviewed by police officers from Lusaka who did not believe that he was the one who drove the bus when the accident occurred. According to PW3, the police officers thereafter drove him around Solwezi town in a vanette, beat him up and took him to Ngonga Motel where he was again beaten by the same police officers who wanted him to say that he was not the one who drove the bus. Because he was afraid of the police, he decided to agree by signing the statement prepared. the police officers When PW3 was cross-examined, he testified that at the time of the accident 9 testified the conductor tit how he survived Simon Phiri, his co-driver, was seated behind him on the staff seat. He that when he came out of the hospital he was told that Simon Phiri and had died in the same road accident. PW3 could not understand when Simon Phiri, who sat behind him and the conductor who sat on his left hand side died. He pointed out that there was no seat belt in the bus and that he held on the steering as he drove the bus. With regard to the state of the bus, PW3 testified to the trial Court that when he was shown the bus he noticed that its top part was bent on the driver's seat where there was more impact. PW3 denied that Simon Phiri drove the bus at the time of the accident. Responding to another question, the witness testified J7 that he could not understand how the police could write two statements, one saying that he was driving the bus and the other saying Simon Phiri was the driver of the bus. To rebut the evidence of the Appellant, the Respondent called four witnesses whose statements are part of the record of appeal. The evidence in chief of Inspector Ziyaye Mwaziona (DWl) of Solwezi Police Station, as contained in her witness statement, to the was that she boarded the bus belonging Appellant, bearing Registration No. ABC 7883, on the 2ih of June, 2005. Before the bus started off, DWl saw a middle aged man sitting seat and in the driver's 4) revving the engine of the bus. After a short while, DWl saw a young man sit in the driver's towards seat who began to drive the bus Lusaka. DWl further deposed in her statement that when the bus passed the Solwezi Social Club the driver of the bus failed to negotiate a corner and the bus was involved in an accident; that the young man who drove the bus died as a result of the accident. was and DWl later came to know who Simon Chulabantu was not the one that drove the bus from Solwezi she stated with certainty that he 9 to the point of the accident. II aware of a report alleging In cross-examination, DWl testified before the trial Court that she was not that she (DWl) received a share of K34 million from the management of Zoom Roadways Transport. She testified that on the 26th of July, 2005 there was an identification parade at Solwezi Police Station at which she identified Simon Chulabantu. She further testified the that she did not mention name of Simon Phiri as the one who drove the bus when investigators from Lusaka visited Solwezi. She also testified that she did not know the name of the driver when she got on the bus and that she did not tell the team of investigators J8 that the driver was a conductor aged twenty years. Clement Mumba (DW2), a Detective Inspector with Zambia Police in Lusaka, stated in his witness statement that he was part of a team of police officers that travelled to Solwezi to carry out thorough investigations aimed at establishing who drove the bus of the Appellant, Registration No. ABC 7883, at the time of the �ccident; that after interviewing many people they ended up interviewing Simon Chulabantu, time who was in charge of the bus at the material and he confessed that he was not the one who drove the bus at the time of the � accident but one Simon Phiri; that from their investigations and interviews with Simon Chulabantu the team established that Simon Phiri was twenty years old and that he died behind the wheel of the bus. Upon his return to Lusaka, DW2 inspected the damaged bus and from his observations he stated with certainty that the damage was such that it was highly improbable that the driver could survive the accident as the impact pushed the entire engine back to the driver's position. When DW2 was cross-examined, his was that he and other police officers were accommodated at Ngonga e testimony Motel at the expense 4f DW2 testified of the Respondent. further that Inspector Ziyaye (DWl) gave him the description of Simon Phiri following which he took a statement from her. He also by testified, way of repetition, that he interviewed Simon Chulabantu at Ngonga Motel and took a statement from him after he was warned and cautioned. The evidence of Jack Muke Kamau (DW3), as contained in his witness statement, was that as a senior underwriter he issued to the Appellant a commercial policy number 080.32.0015.05 on the 4th of May, 2005 covering eight J9 scania buses, including the one that was involved in an accident on the 2ih of June, 2005. The policy provided indemnity to the Plaintiff for its fleet of buses subject to the terms, conditions and exceptions contained in the policy. DW3 deposed that following the accident on the 2ih of June, 2005, the Respondent was notified verbally and in reaction to the information the Respondent dispatched its staff to Solwezi to go and obtain a police report and first hand information on the circumstances surrounding the fatal accident. He disclosed that on the 4th of August, 2005 the Respondent received a claim form from the Appellant stating that the driver of the bus at the material time was e Simon Chulabantu; that the information was contrary had to what the police stated to the Respondent's staff while in Solwezi and that on the 4th of October, 2005 the Respondent received a letter from the Appellant's advocates. The reaction of the Respondent was to deny liability under the policy on the ground that an unlicensed driver drove the bus contrary to the conditions and terms of the policy. The evidence contained in the witness statement of Andrew Ackim Chinyimba {DW4), Deputy Road Traffic Commissioner at the time, was that on the 23rd of August, 2005 his office received a complaint from the Respondent that reports there were contradictory on the road traffic accident in Solwezi involving the Appellant's bus, Registration No. ABC 7883. Consequently, DW4 assembled a team of police officers that included DW2. From the initial investigations DW4 personally conducted from the licensing records, it was revealed that Simon Chulabantu had a valid PSV licence while Simon Phiri no PSV licence. possessed on the 28th of August, 2005 where they DW4 and his team left for Solwezi interviewed many people. The interviews revealed the that Simon Phiri, conductor aged twenty years, drove the bus on the fateful day. DW4's team also JlO interviewed DW1, a passenger on the bus, who confirmed to them that the bus was driven by a young man fitting the description of Simon Phiri. Their further interview with Simon Chulabantu also confirmed that he was not the one who drove the bus. With the foregoing evidence before him, the learned trial Judge went through the entire_evidence on record, the skeleton arguments, authorities cited to him by the parties and the written submissions of counsel. From the evidence on record, the learned trial Judge found that it was common cause that there was a valid insurance contract between the parties which covered, among others, the scania marcopolo bus belonging to the Appellant, number was whose registration ABC 7883. He also found that it was incontrovertible that the bus was extensively damaged in a road traffic accident in Solwezi on the 27th of June, 2005. From the written submissions, including arguments, skeleton the learned trial Judge found that the Respondent's defence hinged on Clause (b) (ii) of the insurance policy under the general exceptions, which absorbed the Respondent e insurance 41 Judge, company from liability where an insured vehicle was not being driven by a duly and fully licensed driver. The controversy, according to the learned appeared to be which driver drove the bus at the time of the accident, considering that there were two police reports, one suggesting that the driver of the bus was not a fully licensed PSV driver and the other one showing that he was a fully licensed PSV driver. As far as he was concerned the success or failure of the case of the Appellant wholly hinged on this as it was at the heart of the case. He went through the evidence of the Appellant, especially the evidence of PW3, who testified that he was the one who drove the bus while Simon Phiri, his co-driver and who died in the accident, sat behind him on the staff seat. As an Jll employee of the Appellant, the learned trial Judge found that PW3 had an interest to serve: he also found his evidence to be flawed in that a person who sat behind him died and another Afred Chewe, a conductor, who sat on his left hand side also died while himself survived the accident. The learned trial Judge had occasion to visit, during trial, the damaged bus in the company oy the parties, including PW3. When PW3 was later cross­ examined, he told the trial Court that he noticed that the top part of the bus was bent on the driver's seat where there was more impact. The learned trial Judge e found that PW3's assessment of the impact was in line with what he saw and noted. He went further and opined that according to his perception it was inconceivable that anyone sitting in the driver's seat could have survived, even by any stretch of imagination. The learned Judge's reasoning was supported by the evidence of DW2, who also inspected the bus, and stated that the with certainty damage was such that it was highly improbable that the driver as the survived engine impact pushed the entire back to the driver's position. analysis the view that the evidence of e With the foregoing 9 (when Simon Phiri who sat behind him died) was nothing the trial Court; intended it was a red herring of the evidence, to mislead but mere sophistry; that that there was nothing PW3 that he could not understand how he survived the learned trial Judge was of miraculous about his survival in the accident because he was not in the driver's seat. He concluded with a finding that PW3 was not the driver of the bus at the time of the accident. This of was after he had taken into account the evidence DWl, whom he described as an independent, reliable and truthful witness who was a passenger in the bus and saw a young man step into the driver's seat, drove J12 off the bus but failed to negotiate a corner resulting in a fatal accident in which he died. On the evidence, the trial Court found that the driver of the bus at the time of the accident was Simon Phiri. Phiri's driving licence, tendered before the trial Court, was scrutinized by the learned trial Judge who found that the driving licence was issued to the deceased under Code 'C' when he was twenty years old. In terms of Section 116 (1) (c), especially sub-section Act, (3), of the Road Traffic Chapter 464, the learned trial Judge found that the late Phiri was not twenty-one years at the time he was issued with PSV driving licence; that his licence was void - ab initio and that he had no valid licence authorizing him' to drive the Appellant's marcopolo bus. In the circumstances, the learned trial Judge found that the accident fell within the exception pleaded by the Respondent. On the whole, the learned trial Judge found that the Respondent was absorbed of liability and dismissed the Appellant's claims. The appeal to this Court is premised on the ground that the learned trial Judge misdirected himself in law and fact when he found that the motor vehicle in a road traffic accident on the 2th of June, 2005, being a scania e involved marcopolo bus, Registration No. ABC 7883, was being driven by Simon Phiri and 9 not Simon Chulabantu and that the evidence on record shows this fact. Both parties filed written heads of argument, which were reinforced by the oral submissions by counsel. Arising from the only ground of appeal, the issues enumerated in the memorandum of appeal which were repeated in the Appellant's heads were:- of argument, (i) There was a police report on record which confirmed the identity of the driver as Simon Chulabantu; J13 (ii) The report which the Court elected to rely on was made much later in time to the one that the earlier report; the Court and that the Court never gave a reason for disregarding (iii) The evidence of DW1 and the report that she made to her Officer-in-Charge 2005, many weeks after the accident on 31st August, and did was only compiled not therefore give a reliable account of the events; (iv) The reliance showing her rank; on the evidence of DW1 was despite that she was corrupt and had in fact been disciplined by demotion the testimony of DW4 in (v) The Court's conclusion that the driver survived of the bus was not sufficient was not supported could not have possibly the visual examination when the Court inspected immediately after the accident occurred; by any evidence and that evidence AND FURTHER the bus it was not in the state that it had been of the bus at the time of the accident (vi) That the account survived rendered give one and that this part of DW2's testimony record of DW2 that it was highly was an opinion by order of the Court; the accident improbable for the driver by a person not competent was in fact expunged from the to have to (vii) Simon Chulabantu dangerous driving was actually charged with of the bus; that he was indeed the driver showing the offence of causing death by (viii) told a lie when she testified DWl clearly parade in a case where PW3 was charged to take charge the High Court on that charge when in fact not; of a motor vehicle that she attended with permitting and that PW3 was charged an identification driver in an unlicensed and appeared (ix) Simon Phiri when in fact the persons that were purporting to have confirmed that likeness had never met or seen Simon Phiri at all. The Appellant submitted in the heads of argument that the main thrust of the decision of the trial Court was that liability would be ascribed based on the fact of who was driving the motor vehicle at the time of the accident. From the learned trial Judge's finding, the Appellant thought that he was correct when he said, in his judgment, that "there appeared to be controversy regarding the driver of the bus at the time of the accident as can be discerned from the two J14 contradicting police reports. As I see it from the facts, the success or failure of the Plaintiff's action wholly hinges on this issue as it is at the heart of the case." The Appellant submitted that the trial Court proceeded to find, as a fact, that PW3 was not the driver of the bus at the time of the accident and that this was the finding the Appellant wished to challenge. The Appellant was alive to the fact that this Court rarely interferes with findings of fact of a lower Court, unless as stated in the case of Nkhata and Four Others -Vs-The attorney General. (ll The Appellant submitted that this was a proper case in which the Appellate Court could interfere with the lower Court's finding of fact. The Appellant's first It argument, arising from the principles enunciated in the Nkhata (ll case, was that by reason of some non direction or misdirection or otherwise the learned Judge erred in accepting the evidence which he did accept. The Appellant submitted that in making the finding of fact that PW3 was not the driver of the bus at the time of the accident the learned trial Judge accepted the evidence of DWl which he found to be more reliable and truthful as she was an independent witness with no interest to serve. As far as the Appellant was concerned, this was an erred conclusion that the Court made and that to out­ rightly accept DWl as a truthful witness with no interest to serve was a misdirection. The Appellant further submitted that the evidence of DW2 was that when a team of investigators from Lusaka went to Solwezi the expenses for the trip and investigation were borne by the Respondent; that it was during the investigations that DWl made a statement to the team from Lusaka. The view of the Appellant was that this fact should have put the lower Court on guard and treat the JlS evidence of DW1 with circumspection and not accept as the her (DW1) evidence truth. Secondly, it was submitted that in assessing and valuating the evidence, the learned trial \ Judge had taken into account, or failed to take into account some matter which he ought not to have taken. The Appellant submitted that there were conflicting police reports on the accident, which the trial Court acknowledged when r�viewing the evidence but gave no further to consideration that question when adopting the testimony of DW1. It was submitted that the report of K. Hambaza, Traffic Officer, Investigations was to the effect that PW3 was the driver at the time of the accident but the trial Court glossed over the report and failed to take it into account in reaching his decision. The Appellant, in the third place, submitted that it un-mistakenly appeared from the evidence itself, or from the unsatisfactory reasons given by the learned Judge for accepting the evidence that he could not have taken proper advantage of his having heard and seen the witnesses. In the view of the Appellant, DW1 offered inconsistency in her testimony; PW3 at an that when she identified identification parade she said that he was the one who allowed a young, slim dark man to take charge of the vehicle; that the parade she attended was for the offence of allowing an unlicensed person to take charge of a vehicle and that PW3 was in fact appearing in Court for the offence. As far as the Appellant was concerned, the testimony was suspect. It submitted that on the 26th of July, 2005, when the parade was held, the police were already investigating the case of causing death by dangerous driving and the suspect was PW3; that the position only changed when the report by the investigating team from Lusaka rendered its report on the 14th of September, 2005 and it did not occur to the learned trial Judge that DWl was already J16 assisting with investigations that had not technically commenced. It was, therefore, clear, the Appellant submitted, that the learned Judge did not take advantage of having seen and heard from DWl, who contradicted herself on a material question. On the fourth in the Nkhata and last principle (ll case, that states: In so far as the Judge has relieq on manner and demeanuor, there are other circumstances which indicate that the evidence of the witnesses is not which he accepted credible, as for instance, where those witnesses matter on some collateral deliberately gave untrue answer; the Appellant repeated the inconsistency of the parade and submitted that DWl deliberately gave untrue answer, that is that PW3 was being investigated for allowing a young man to take charge of the bus, and ought to have been treated with circumspection. The case of Justin Chansa - Vs-Lusaka City Council, (2l was cited to us, where we lamented of the the failure trial Court in failing to give reasons for ignoring certain evidence. With the foregoing elucidation, we were urged to disturb the lower Court's findings because the learned trial Judge failed to evaluate the evidence before him and take advantage of observing witnesses who were before him; that failure e to give reasons for rejecting the other evidence was fatal and ground for reversing the decision of the learned trial Judge. In his oral submission, by way of reply, counsel for the Appellant reiterated what was contained in the heads of argument. From the heads of argument in response, the Respondent submitted that the learned trial Judge was on terra firma when he found for the Respondent upon consideration of the facts and evidence presented before the trial Court. We were urged to uphold the learned trial Judge as there was no basis for J17 disturbing it. Coming to the only ground of appeal, was the Respondent's position that it hinged on a finding of fact that the bus was being driven by Simon Phiri who perished in the accident as opposed to Simon Chulabantu (PW3). The Respondent conceded that there were conflicting stories advanced by both sides in their respective pleadings, witness statements and oral testimonies of witnesses on the, basis of which the trial Court was entitled to make findings of fact. The case of Attorney General -Vs-Kokomo (3l was cited to illustrate the point we made in the case that "a Court is entitled to make findings of fact where the 9 parties advance directly conflicting stories and the Court must make findings on the evidence before it and having seen and heard the witnesses giving that evidence ---." We were urged not to disturb findings of fact, citing many cases, such as, Maamba Collieries -Vs-Godfrey Mudenda Nq'andu (4l that "it is trite law that in matters of findings of fact and questions the trial of credibility Court had the advantage of seeing and hearing the witnesses, which this Court does not have." - The Respondent submitted that the factual evidence of DWl and the only possible conclusion the learned trial Judge came to, that Simon Phiri and not e Simon Chulabantu was the driver could not of the bus at the time of the accident, be considered to have been made in the absence of any relevant evidence nor could it be argued that it was made upon a misapprehension of the facts and neither could it be deemed perverse to warrant faulting it. In that regard, the Respondent was of the view that the only ground of appeal had no merit and should be dismissed. J18 The Respondent then dealt with the issues raised under by the Appellant the only ground of appeal separately. We have gone through the Respondent's arguments on all the nine issues raised by the Appellant. Our considered view is that the arguments directly or indirectly tend to reinforce the Respondent's argument under the only ground of appeal that the learned trial Judge properly found that Simon Phiri drove the bus and perished in the accident and not Simon Chulabantu. A summary of the submissions is likely to be a duplication on a matter already outlined and to avoid falling into the same trap as the Respondent did we shall not summarize the Respondent's submissions on the nine issues or questions. We, however, reserve the right to revert to an issue discussed by the Respondent if, by so doing, the interests of justice will be better served. We have carefully considered the submissions in this appeal, including the cases cited to us, the evidence adduced at trial and the well reasoned judgment of the trial Court. From the submissions, the only issue in contention to us appears to be: Was Simon Chulabantu or Simon Phiri the driver of the bus at the time of the accident that occurred on the 2th of June, 2005 at Solwezi? Like the learned trial Judge, we pose this question because if the driver is found to have been Simon Chulabantu the case for the Appellant must succeed because the said Simon Chulabantu was a qualified PSV driver and had in his possession a valid driving licence that meets with the general exceptions of the insurance policy under Clause (b) (ii). On the other hand, if Simon Phiri was driver the case for the Appellant cannot be sustained as the uncontroverted evidence on record clearly shows that the late Simon Phiri did not hold a valid PSV driving and, licence therefore, not qualified to drive the scania marcopolo bus under Clause (b) (ii). J19 Like the learned trial Judge, we have followed the evidence of DWl with keen interest. This is the witness the learned Judge found to be truthful, reliable, independent and with no interest to serve. The learned Judge said this after assessing her demeanour and credibility as she gave evidence box. in the witness Apart from being a police officer, she was a passenger in the bus, having entered the bus before off. it started Her evidence was that a middle aged man took the driver's seat, started the engine and revved it. When he left the driver's seat, DWl saw a young man take over the seat and the bus started off. At a curve, the young man failed to control 9 the bus resulting young man turned out to be Simon Phiri. in the fatal accident in which the same young man died. The When DWl was cross-examined, she remained steadfast when she said that the man who drove the bus up to the time of the accident looked younger than Chulabantu. In our view, there was nothing ambiguous or inconsistent about her evidence that PW3 was not the driver of the bus at the time of the accident. Her evidence was an eye witness account of what happened and in this we find that the learned e regard e the time of the accident. the traffic report of Hambaza that showed that PW3 was the driver of the bus at As we shall soon show, the traffic report of Hambaza trial Judge was on firm ground to have discarded could not be relied on because it was not realistic. Further, we find the evidence of PW3 indirectly supportive of the evidence of DWl that he was not the driver at the time of the accident. After the accident, PW3 described his survival from the accident as miraculous. He could not believe that both Simon Phiri, who sat behind him in a seat reserved for staff and the conductor who sat to his left hand side died. His attempt in saying that he was . . J20 the driver of the bus was, as an interested person, intended the to improve chances of success of the case of his employer. However, this was not to be believed by the learned trial Judge who appropriately described his evidence as a fraud on the Court for the sole purpose of misleading the Court into believing that he was the driver at the time of the accident when he was not the one. We, therefore, agree with the lower Court that he survived because he was not in the seat. driver's Assisted by the evidence of DWl and DW2, the learned trial Judge was in a position to entangle the conflicting evidence adduced by the parties with a visit to the damaged bus. The visit was prompted by the application by the Respondent to which no objection was raised by the Appellant. The visit by the trial Judge had support under Order 29, rule 2(1} of the RSC which allows a Court to inspect any property or thing forming the subject matter of the proceedings. At page 8, paragraph 1-15, the learned authors of Phipson on Evidence state that- the Court on the relevant "the Judge may, either to assist themselves those witnesses witnesses evidence in the case." are recalled give demonstrations or other persons on his own motion or at the request of counsel, matters, had been at the material such as the position or things to be cross-examined, times, if so required. ask witnesses in which they that provided A view at which or answer questions is part of the trial and of the e The evidence on record shows that when the learned trial Judge visited the damaged marcopolo bus PW3 was there. The trial Court asked him questions to obtain full information and evidence on whether his survival was miraculours. After looking at the bus, and bearing in mind the evidence of DW2, on the condition of the damaged bus, the trial Judge opined that it was inconceivable that anyone sitting in the driver's seat could have survived the impact, even by any stretch of imagination. t •. J21 To a large extent, the view we hold is that the appeal is against of findings fact which do not entitle us to interfere with the overall decision of the learned trial Judge. On the facts, it is unavoidable to come to the conclusion that Simon Phiri was the driver of the bus. With this finding, we agree and uphold the decision of the learned trial Judge to dismiss the claim of the Appellant. The appeal is accordingly dismissed with costs to the Respondent. • ······················�···· ················ D. K. Chirwa, SUPREME COURT JUDGE S. S. Silomba, SUPREME COURT JUDGE H. Chibomba, JUDGE SUPREME COURT