Christopher Kaoma Chanda v Lusaka City Council (app/041/2020) [2022] ZMCA 228 (23 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APP/041/2020 BETWEEN: 2 3 JUN 2022 CHRISTOPHER KAOM~ CHANDA APPELLANT AND ~ LUSAKA CITY COUNCIL RESPONDENT CORAM: Makungu, Sichinga and Muzenga, JJA on 2CJth October, 2021 and 23rd June, 2022 For the Appellant: No appearance (Notice of non-appearance) For the respondent: No appearance JUDGMENT Sichinga, JA d eliver ed t h e judgm ent of the c;ou rt. Cases referred to: 1. Rosemary Chibwe v Austin Chibwe (2001) ZR 1 2. Mazoka and Others v Mwanawasa and Others (2005) ZR 138 3 . Undi Phiri v Bank of Zambia SCZ Judgment No.2 1/2 007 4 . Roland Leon Norton v Nicholas Lostron (2010) ZR 358 Vol. 1 5 . Wilson Masauso Zulu v Avondale H ousing Project Limited (1982) ZR 172 6 . Nobel's Explosives Company v British Dominions General Insurance Company [19 18] 1 SLT 205 7 . United States v Cartwright, 411 US 546 Legislat ion referred to: 1. The Judgments Act Chapter 81 of the Laws of Zambia Other works referred to: 1. Black's Law Dictionary, Bryan A. Gamer, 9th edition, A Thomson Reuters 1.0 Introduction 1.1 The appellant appeals against the decision of the High Court at Lusaka (Wanjelani J) delivered on 21 st November, 2019, in which the learned Judge found on a claim for lost property that the plaintiff (appellant now) had not, on a balance of probabilities, proved his case against the defendant Lusaka City Council (respondent now) for special loss suffered. Wanjelani J dismissed the plaintiffs claim with costs. 2.0 Background 2.1 On 15th June, 2004 the plaintiff entered into a lease agreement with the defendant relating to property LUM/ 09 / 3694 for a period of two (2) years. When the lease expired, the plaintiff remained in occupation of the subject property and continued to pay rent. 2.2 On 8 th September, 2014, the defendant wrote to the plaintiff giving him seven (7) days' notice to vacate the property. The said stand was created within the road reserve along Lumumba Road in the business district of Lusaka. In accordance with the notice, the reason ascribed for the termination of the lease was for an urgent government programme. -J2- 2.3 On 19t h September, 2014, the defendant Lusaka City Council put out a public notice that it would raze down and remove structures erected on land including along Lumumba Road within 48 hours. This was subsequently done, and the plaintiff's structure was among those razed down. The plaintiff went to the council to recover his chattels which were in the razed structures. He recovered some of the items. He then took out an action by way of writ of summons and statement of claim seeking the following reliefs: 1. 11. Car wash K453,845.00; Restaurant/take away Kl 11,548.00; 111. Barbershop K49 ,665.00; 1v. v. v1. Interest at the current bank of Zambia lending rate; Costs; and Further or any reliefs that the court may deem fit. 3.0 The decision of the lower court 3 . 1 After considering the evidence before her, Wanjelani J found that it was not in dispute that: the plaintiff and the defendant had entered into a lease agreement for the maintenance and adoption of a carwash for a two (2) year period; the plaintiff was in occupation after the expiry of the lease term, and continued to pay the rent; the defendant issued a seven (7) day notice to the plaintiff to vacate on 8 th September, 2014; on 19th September, 2014 the defendant issued a public notice for occupants to remove structures within 48 hours ; the -J3- plaintiff appealed against the said notice on 22n d September, 2014 and did not remove his property from the premises; and the defendant never responded to the appeal by 29th September, 2014 when it razed down the structures. 3.2 The trial court found that the plaintiff was not a tenant at will but that the lease became a tenancy from year to year. That the said lease ought to have been terminated by giving 3 months' notice in accordance with clause 18 of the lease. 3.3 The lower court found the defendant in breach of the terms of the lease as it gave the plaintiff seven (7) days' notice to vacate the premises and later 48 hours' notice to raze the structures as opposed to three (3) months provided in the lease. 3.4 The learned Judge found that the plaintiff did not plead damages for breach of contract or lead evidence to that effect. She found that the plaintiffs claim was confined to special damages. She determined that the plaintiff did not lead any evidence on the things lost or tell the court what was collected. That he did not show the court that he was permitted to carry out other activities such as the barbershop and restaurant in addition to the carwash. 3.5 The learned Judge found no basis upon which to make an informed opinion as regards the quantum of the alleged special and quantified loss. 3.6 Therefore, she determined that the plaintiff failed to prove his case on a balance of probabilities, and dismissed his claim with costs. -J4- 4.0 The appeal 4.1 The sole gr ound of appeal 1s that the court below misdirected itself both in law and fact when it held that the plaintiff had, on a balance of probabilities, failed to discharge the burden of proving the special loss he has suffered. 5.0 Appellant's arguments 5. 1 The a ppellant filed into court h eads of argum ent on 2 7 th March, 2 0 2 0 . In the first part of h is arguments, the a ppellant con tended tha t th e tr ial court misdirected itself when it sta ted tha t h e did n ot produce any eviden ce to show that h e wa s p ermitted to carry out other commercial activities such a s th e b arbershop and restau rant as opposed to just the carwash alluded to in the lease. He referred u s to the proceedings at p ages 12 1 to 122 of th e r ecord of appeal where h e gave eviden ce as follows: "We had a car wash along Lumumba Road and it had some structures which comprised of restaurant, barbershop, machine room and an office which was at the premises. In 2014, somewhere in June, we received notice that we needed to relocate the place. These are massive investments done in that place. We were given 48 hours to vacate the place. The time was too short, I therefore appealed to the council. I d id not get any response to the appeal. One morning we found our car wash was razed by the Lusaka City Council. We had an inventory -JS- for what the car wash had and went to the Council, they gave back what they could but most of the items were not recovered, hence my action." 5.2 The appellant contended that his evidence was never challenged. He submitted that various items were taken from his trading post by the respondent which were not surrendered to him when his properties were razed down. He argued that the respondent had an obligation to account for his property collected from the premises. Reference was made to the case of Rosemary Chibwe v Austin Chibwe1 in which the Supreme Court held inter alia that "it is a cardinal principle supported by a plethora of authorities that court's conclusions must be based on facts stated on record." 5.3 It was submitted that the reasons advanced by the trial court in arriving at the conclusion it did was in conflict with the Supreme Court's guidance in the Chibwe case. We were thus urged to interfere with and reverse the conclusion of the court below. 5.4 In the second part of his submissions, the appellant assails the trial court for holding that h e did not plead, in his statement of claim, damages for breach of contract or lead evidence to that effect. 5.5 Whilst the appellant conceded that he did not plead for breach of contract in his statement of claim, he, however, disputed the lower court's finding that he did not lead any evidence to -J6- that effect. He referred us to page J9 (page 20 of the record of appeal) where the lower court stated that: "The plaintiff contends that the lease was valid as the defendant had continued receiving rent after its expiry, and thus the defendant was in breach of the lease as it should have given the three months' notice stipulated therein." 5.6 We were also referred to DW2, Robson Banda's evidence at page 136 of the record of appeal where he stated that "termination agreement of 3 months with reference to the lease, 3 months' notice should have been given. " 5. 7 Reference was made to the lower court's finding to the effect that it found that there was a breach of the terms of the lease by the respondent. The appellant argued that the trial court would not have made such a finding if he had not led any evidence that the respondent was in breach of the lease. Reliance was placed on the case of Mazoka and Others v Mwanawasa and Others2 where the Supreme Court stated that: "If the court found that the matters were not pleaded, the Zambian cases are to the effect that where there is a failure to object to evidence led, the court is not precluded from considering that evidence." 5.8 He also relied on the case of Undi Phiri v Bank of Zamba3 for its holding that: " ... it is trite law that matters that a party wishes to rely upon in proving or resisting a claim must be pleaded. However, where a party does not object to the -J7- evidence on unpleaded matter, the court is not precluded from considering the evidence." 5.9 Similarly, the case of Roland Leon Norton v Nicholas Lostron4 for its holding that: "if an issue is not pleaded in the court below and is raised in evidence without any objection by the other party in the court below, the court has an obligation to consider that issue raised." , 5 .10 In light of these authorities, and the lower court's finding that there was a breach of the terms of the lease by the respondent, the lower court ought to have awarded damages for the breach. We were urged to allow the appeal. 6.0 Respondent's submissions 6 . 1 The respondent neither filed any written heads of argument nor appeared before us. 7.0 The decision of the Court on appeal 7. 1 We have carefully considered the record of appeal and the written submissions by counsel for the appellant. The challenge to the decision of Wanjelani J is that she made an error of law when she failed to consider the evidence of the loss suffered by the respondent as a result of the respondent's breach of the lease. 7 .2 In the first part of the argument, the appellant's submission is that the trial court arrived at an incorrect conclusion when it -JS- • held that he had not proved the loss suffered when the respondent razed and removed structures on its property. Further, that he did not prove that h e was permitted to carry out other commercial ventures such as the barbershop and the restaurant. 7 .3 Among the facts found not is issue by the trial court are: that the appellant appealed against the respondent's notice of eviction on 22nd September, 2014, and he did not remove his property from the premises; and that the respondent had not responded to the appellant's appeal by 29th September, 2014, when it razed down the structures on its premises occupied by the appellant. The learned Judge made these findings of fact after having heard the evidence and submissions from the appellant that after the car wash was razed, he carried out an inventory of what was lost and presented it to the respondent. According to his evidence, the respondent returned some property to him, however, most of the items as presented in the list availed to the respondent were not recovered. The learned Judge considered the list as unverified and formed the view that he was not entitled to the damages claimed. 7.4 The full list of missing items presented to the court was as follows: (a) Auto Bath Car Wash (Control Room and Office) No. Item Claim Award 1. 5 industria l cleaners K2,500 K 12,500 -J9- • 2. 4 x Wap Industrial High 3. 4. 5. 6. 7. 8. 9. 10. 1 1. 12. 13. Pressure washing machine K50, 000 each K200,000 8 x high voltage power motor Kl,200 each K 9,600 1 00m high pressure pipe 1 x micro wave K32/m Kl,200 6 x high pressure water guns K 250 2 5 x metal chairs 4 x display micro wave K K 500 K 3 ,200 K 1,200 K 1,500 K 1,625 K 2,000 1 x office table + 3 tables K 620 + K250 K 1,370 2 x tubeless tyres K 500 each K 1,000 4 x car seats 1 x storage truck 24 x empty crates (soft drinks) 14. 2 x fire extinguishers 15. 16. 1 x air conditioner 1 x domestic washing K 300 K 250 K 50 K 200 K4,300 K 1,200 K K 1,200 K K 4,300 machine K2,500 K 2 ,500 17. 4 x deep fryers K2,500 each K 10,000 18. Metal fabrication and concrete stones 19. Angle line fence K150,000 K 50,000 K 150,000 K 50,000 TOTAL K453,845 -JlO- Award K 2,500 K 5,400 K 1,000 K 1,800 K 2,550 K K K K K 400 64 K 2,500 K K K K 800 800 K 2,500 K K 30 K 90,000 Klll,548 1. 2. 3. 4 . 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. (b) Auto bath Restaurant operating items No. Item 1 x flour plate cooker 3 x fridges 2 x wooden tables 15 x pots 1 7 x plastic chairs 6 x metal chairs 2 x food warmers 5 xjadies 8 x glass cups Claim K2,500 Kl,800 K 500 K 120 K 150 K 65 K 200 K 30 K 2 x cases of apple max K 35 1 x deep fryer 1 x radio case K2,500 K 200 16 x empty bottles crates K 1 x meal bin 2 x stools 1 x oven K 250 K 400 K2,500 24 x ceramic plates 20 x plastic plates K K 1.50 19. Restaurant construction K 90,000 TOTAL -Jll- (c) Auto Bath Barber shop operating equipment No. Item Claim 1. 2. 3 . 4. 5. 6. 7 . 8. 9. 9 x barbing machines 2.5ltrs methylated spirit 750ml Dettol 6 x 500ml after shave 340ml blue magic 80ltrs plaster geyser tank 2 x long stools 3 x swivel chairs 5 x big mirrors 10. 4 x pieces of glass 1 1. Hair dryers 12. 13. 14. 15. 16. 12 x hair products 3 x work suits 4 x bathing towels Electric kettle 1 x plastic chair 17. Spare parts for barbing K K K K K K K K K K K K K K K K 65 15 280 800 450 60 45 65 Award K 4 ,050 K K K K K 85 35 K 1,600 K 2,400 K 2,250 K 1,800 K K K K K K 720 180 65 Machine K 400 K 18. Construction of ba rber Shop K 35,000 TOTAL K 35,000 K 49,665 7.5 It is a well settled principle in ou r jurisdiction that before an appellate court can interfere or reverse a finding of fact made by a trial court, it must be satisfied that the findings in question were either perverse or made in th e absence of any -J12- relevant evidence or upon a misapprehension of the facts, or that they were findings which on a proper view of the evidence, no trial could reasonably make. The case of Masauso Zulu v Avondale Housing Project Limited5 refers. 7.6 The finding made by the trial court that the appellant failed to discharge his burden of proving special loss is against the fact that he produced a comprehensive list of the items he claimed were missing as a result of the respondent's action. At pages 122 to 123 of the record, the appellant referred the court to contents of items that were in the car wash and restaurant. There was no finding by the trial court that the respondent had no opportunity to either verify or question the loss suffered. In fact, a perusal of the evidence on record reveals that the respondent never disputed that the items were destroyed. Further, the values as presented by the appellant were not disputed. 7. 7 With reference to the trial court's finding that the appellant did not produce any evidence to show that he was permitted to carry out other commercial activities such as the barbershop and restaurant, we refer to the relevant clauses of the lease which provide as follows : "11. Not to erect or permit to be erected in the car park any building; 12. Not to engage in any other commercial activity except those authorized by the Landlord." -J13- 7 .8 Whilst the trial court found other commercial activities, save the car wash, were not permitted by the lease, it is clear from the notice to vacate availed to the appellant that the eviction was not predicated on perceived breaches of the lease agreement. According to the letter dated 8 th September, 2014 addressed to the appellant by the respondent, the eviction was based on "the need for use of space along Lumumba Road for an urgent government programme. " 7 .9 On that analysis, it would appear that the respondent had acquiesced to the other commercial activities taking place on the property, that is, the barbershop and the restaurant. This can be seen from the fact that the other commercial activities were not raised in the respondent's defence as a ground to evict the appellant from the premises. In any event, the trial court found that the respondent did not plead that at the time of razing the structures, it was invoking its contractual right under clause 19 to re-enter for failure to pay rent. To that we would add that the respondent did also not raise any other breach as a basis to evict the appellant from the property. 7. 10 The considerations of perceived breaches and an unverified list were therefore irrelevant in proving the loss suffered by the appellant. It is trite that he who alleges must prove, and in civil matters, the standard is on a balance of probabilities. The burden of proof places the responsibility of establishing a particular fact on its proponent. The r equirement of proof -J14- • means that facts must be established to the satisfaction of the court, but this does not mean absolute certainty. In the case of Nobel's Explosives Company v British Dominions General Insurance Company6 at page 206, Lord Guthrie said: "Outside the region of mathematics, proof is never anything more than probability." 7. 11 Thus, in coming to a conclusion, a court is basically stating that the facts before it are as sure as they should be. The appellant having produced a list of unrecovered items, which the respondent did not dispute, had on a balance of probabilities discharged the burden to prove the loss he suffered since the material fact of razing down of the appellant's trading premises was not in dispute. The ancillary fact that the appellant had on the premises the property claimed to support his trade was equally not in contention. We see no basis on which to depart from this principle of law which applies consistently in civil trials. 7.12 For the reasons we have given, we find that the learned trial Judge misdirected herself when she concluded that the appellant failed to discharge his burden of proof. We accordingly set aside the lower court's judgment and allow the appeal. -JlS- 7. 13 We now turn to assess the loss suffered on the basis of the fair market value of the items lost. The learned authors of Black's Law Dictionary1 describe fair market value as: "The price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's length transaction; the point at which supply and demand intersect." 7 . 14 In the case of the United States v Cartwright7 fair market value was defined as: " ... the price at which the property would change hands between a willing buyer and a willing seller, neither under any compulsion to buy nor to sell and both having reasonable knowledge of relevant facts." 7 . 15 Fair market value frequently plays a role in determining the amount to recover for special damages. It can be assessed in various way s including: making comparative analysis of similar products; professional appraisal by having experts in particular products appraise them; or by averaging the highest and lowest price of an item. 7.16 Our assessment of the appellant's loss based on the fair market value is as fallows: (a) Auto Bath Car Wash (Control Room and Office) No. Item Claim Award 20. 2 1. 5 industria l clean ers K2 ,500 K 12,500 4 x Wa p Industria l High -J16- Pressure washing machine K50, 000 each K 60,000 22. 8 x high voltage power motor Kl,200 each K 9,600 23. 24. 1 00m high pressure pipe 1 x micro wave K32/m Kl,200 25. 6 x high pressure water guns K 250 26. 25 x metal chairs 27. 4 x display micro wave K K 500 K 3,200 K 1,200 K 1,500 K 1,625 K 2,000 1 x office table + 3 tables K 620 + K250 K 1,370 2 x tubeless tyres K 500 each K K 300 K 250 K 50 K 200 K4,300 K 1,200 K K K nil K 4,300 K2,500 K 2,500 K2,500 each K 4,800 K150,000 K 50,000 K 50,000 K 20,000 K176,945 28. 29. 30. 31. 32. 33. 34. 35. 4 x car seats 1 x storage truck 24 x empty crates (soft drinks) 2 x fire extinguishers 1 x air conditioner 1 x domestic washing machine 36. 4 x deep fryers 37. Metal fabrication and concrete stones 38. Angle line fence TOTAL -J17- (b) Auto bath Restaurant operating items No. Item Claim 20. 2 1. 22. 23. 24. 25. 26. 27. 28. 29. 30. 3 1. 32. 33. 34. 35. 36. 37. 38. 1 x flour plate cooker K2,500 3 x fridges 2 x wooden tables 15 x pots 1 7 x plastic cha irs 6 x m etal chairs 2 x food warmers 5 xjadies 8 x glass cups Kl,800 K 500 K 120 K 150 K 65 K 200 K 30 K 2 x ca ses of apple max K 35 1 x d eep fryer 1 x radio case K2,500 K 200 16 x empty bottles crates K 1 x meal bin 2 x stools 1 x oven K 250 K 400 K2,500 24 x ceramic plates 20 x plastic plates K K 1.50 Restaurant construction K 90,000 TOTAL Award K 2,500 K 5,400 K 1,000 K 1,800 K 2 ,550 K K K K K 400 64 K 2,500 K K K K 800 800 K 2 ,500 K K 30 K 90,000 Klll ,548 -J 18- (c) Auto Bath Barber shop operating equipment No. Item Claim Award 19. 20. 21. 22. 23 . 24 . 25. 26. 27. 28. 29 . 30. 31. 32. 33. 34. 35. 9 x barbing machines 2.5ltrs methylated spirit 750ml Dettol 6 x 500ml after shave 340ml blue magic 80ltrs plaster geyser tank 2 x long stools 3 x swivel ch a irs 5 x big mirrors 4 x pieces of glass Ha ir dryers 12 x h air products 3 x work suits 4 x bathing towels E lectric kettle 1 x plastic cha ir K K K K K K K K K K K K K K K K K 4,050 85 35 800 450 250 90 125 K K K K K 85 35 K 1,600 K 2,400 K 2,250 K 1,800 K K K K K K 720 180 65 Spare pa rts for barbing Machine K 400 K 36. Construction of barber Shop TOTAL K 35,000 K 35,000 K 49,665 7.17 In total we award the appellant th e sum of K338,158. The same to attract interest at the prevailing Bank of Zambia short term deposit rate per annum from the date of writ to the date of Judgment of the lower court and thereafter at commercial lending rate as determined by Bank of Zambia. -J19- ., 7 .18 For the foregoing reasons, we allow the appeal with costs to the appellant, to be taxed in default of agreement . ... . .. ... . . .. . ~~ ..... ... .. .. . C. K. Makungu COURT OF APPEAL JUDGE . .. . . . . . . . . . . . . - . ..... . D. L. . Siching , SC COUR OF APP AL JUDGE K . Muzenga COURT OF APPEAL JUDGE -J20-