Deans Haulage Ltd v Kalunde Import and Export (Appeal 111 of 2005) [2007] ZMSC 134 (5 August 2007)

JI IN THE SUPREME OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 111/2005 (Civil Jurisdiction) BETWEEN: DANA HOLDINGS LIMITED APPELLANT AND KALUNDE IMPORT AND EXPORT RESPONDENT Coram: Chibesakunda, Mushabati, JJS, Kabalata, AG. JS On 2nd August, 2006 and 5th August 2007 For the Appellant: For the Respondent: Mr J. C. Chashi, of Messrs Mweemba Chashi & Mr. Gondwe, of Buta Gondwe & Associates. Partners. ______________________ JUDGMENT_____________________ Chibesakunda, JS delivered the Judgment of the Court. Cases referred to: 1. Wilson Masauso Zulu V. Avondale Housing Project Limited - 1982 ZLR 172. 2. Philip Mhango V. Dorothy Ngulube and others (1983) ZR 61 3. Orman Corrigan (Suing by his next friend), Albert John Corigan V. Tiger Limited and ABDI Jumale (1981) ZR 60. 4. Zambia Publishing Company and Pius Kakungu (1982) ZR 167 5. George Chishimba V Zambia Consolidated Copper mines Limited (1999) ZR 198. 6. YB and F Transport and Supersonic Motors Limited (2000) ZR22. This is an appeal against the quantum of damages awarded by the High Court against the Appellants in a motor accident claim in which the Respondents had sued them claiming for: - J2 (1) An Order and or declaration that the Appellant attends to repair the Respondents’ Truck in order to restore the same in a state of repair as it was before the accident. (2) The sum of K2,000,000.00 for wasted Potatoes (3) Damages for loss of business from the 29th of September 2002 to the date the Respondents’ Truck was back on the road. The Court in the judgment awarded the sum of K8, 000,000.00 in favour of the Respondents against the Appellants, being the balance of the repair costs plus interests at Bank of Zambia recommended rate effective from 24th January 2003 up to the date of full payment. The Court dismissed the claim by the Respondents for damages resulting from damaged potatoes and rice, which the Respondents claimed as a result of the accident. The court also dismissed the claim for damages for loss of business as having being unsubstantiated. The Appellants being aggrieved by this decision of the High Court now has appealed to this court. Before the High Court, the evidence in brief was that the Appellants’ truck registration No. AAK4180 and the Respondents’ truck No. AAV990, on the 29th September 2002 at Chikokoshi near Kapiri Mposhi, were involved in a road traffic accident. The Appellants’ truck hit into the Respondents’ truck that was coming from the opposite direction. The Respondents’ truck was coming from Nakonde ferrying rice and potatoes on hire. It was not in dispute that the Appellants’ vehicle had technical problems on its way from Nakonde and that it had spent about to two three days driving between Nakonde and Kapiri Mposhi. According to the Police J3 report, the accident was contributed to the Appellants’ driver who was charged with careless driving and paid admission of guilty fine at Kapiri Mposhi Police station. According to the Appellants, the accident occurred when the Appellants’ driver went into the other lane and hit into the Respondents’ truck, which was coming in the opposite direction. The Police recorded damage caused to the Respondents’ truck as the rear fender, right tail board and diff. The Respondents initially made a claim to the Appellants. The Appellants in turn made their claim with their insurers. The Appellants presented the quotation for repair that the Respondents had obtained. This quotation put the total repair costs at K25, 778,250.00. The Appellants’ insurers only paid KI5, 000,000.00 to the Respondents leaving a balance of K9, 778,350.00 outstanding. The Appellants refused to settle this balance on the ground that the quotation included items that were not damaged in the accident. The Respondents on the other hand, claimed that all the items included on the quotation were damaged as a result of the accident and that the Police report did not include these items because the damage to these items was not visible and only become apparent during repair. Because of this, the Respondents came to court claiming the reliefs already quoted at J1-2. The case for the Respondents (who were the Plaintiffs before the High Court) was that as a result of this accident their truck registration No. AAK4180 was extensively damaged and the rice and potatoes worthy K2,000,000.00 which they were hired to ferry from Nakonde to Ndola went to waste. Their case was that because the Appellants’ insurers failed to J4 repair the truck they suffered loss of business. Their evidence given by two witnesses PW1 and PW2 was that on the day in question, the driver of the Appellant’s truck was totally at fault when the accident occurred and that this is wrhy he admitted guilty and paid a fine. Their position was that after this accident their truck was only able to move because PW1 did some repairs after the accident. They further testified that some of the items listed on the documents relating to the accident were not on the Police report because these items were discovered when the motor vehicle was repaired. The total repair costs was K2 5,000,000.00 which included items not listed in the Police report. The Appellants’ (Defendants at the High Court) evidence before the High Court was that they were not liable for the accident and that even though they admitted having been liable, the damage claimed by the Respondents was exaggerated. The evidence given by DW3, the Respondents’ driver at the time of the accident, was that the Appellants subsequently employed him after the accident happened and that the Respondents’ truck No. AAK4180 was not totally damaged. His evidence was that this truck was defective right from Nakonde. Because of its defective condition they spent 5 days from Nakonde to Kapiri Mposhi. The rice and potatoes were not damaged as a result of the accident. The potatoes were delivered intact by the roadside to the owners and rice was destroyed because of the way it was packed. DW3 testified that he in fact paid the owners of the rice because he accepted liability for packing the rice wrongly. Their case is also that, the vehicle even after the accident was mobile. It was driven from the accident scene to Kapiri Mposhi Police station, further, J5 it was even driven up to Lusaka. At Kabwe it was hired to ferry charcoal. According to the Appellants, if there was any damage to that truck, it might have happened after the accident at Chikokoshi near Kapiri Mposhi. They went into detailed argument explaining that, the motor vehicle could not have been driven from the accident scene had the diff been damaged as claimed by the Respondents. Thereafter, they argued that most of the items claimed by the Respondents to have been damaged in the accident were not even listed in the Police report as items damaged as a result of the accident. On the quantum to damages they argued that they were not liable for the loss of business. They refuted claims by the Respondents that they used to make K20, 000,000.00 between Nakonde and Ndola in their business. Their evidence was that when business was good they used to make K2,500,000.00 and when business was bad they used to make about KI,500.000.000 million. Their case is also that between February and December, 2004 this truck in question only made six trips and that only K7,900,000.00 was raised on these trips: Lusaka - Ndola “no money raised as the truck was empty; two return trips-Luangwa-Lusaka, K700,000.00 and K800,000.00 respectively; Nakonde-Lusaka KI,150,000.00, K875,000, K775,000.00 and KI 00,000 respectively and Mongu-Lusaka K700,000, making a total of K4,225,000.00, So their argument is that the evidence by the Respondents documentation on profits made by the Respondents was not a correct reflection. The Learned trial Judge having weighed the evidence and arguments before her, found, as already stated, that the Appellants were liable for the damages. She awarded the Respondents a sum of K25, 778,350.00. She J6 declined to award any damages for loss of business and even damages for the wastage of both rice and potatoes. Aggrieved by this decision the Appellants have come to this court. The Appellants in their argument raised two grounds of appeal. These are: 1. That the court below erred in law and in fact byDisallowing the shrivel bearing and seal in the claim for balance repairs. See pages 68-84 of the record of appeal and the court's specific findings on page J 16 which is page 86 of the records of appeal. In the first paragraph the Court disallows the shrivel bearings and seal but states that the other items correspond with the damage described on the Police report. 2. That the court below erred in law and in fact by not giving full effect to DW4's testimony that " the wheel drum secures the tyres to the vehicle", the wheel studs secure the wheels to the vehicle and the wheel would have come off the vehicle if the studs were damaged". That the half shaft is for motion and if damaged the vehicle would not move", and that for the two wheel bearings the vehicle would not have carried anything". J7 The Appellants in their argument argued that, the court below erred in law and fact by disallowing shrivel bearings and seal etc,, in the claim for the balance in the repair costs and further stated that the other items corresponded with the damages described in the Police report. It was argued that the Police report recorded the damages to the Respondents’ vehicle as rear fender, right tail, board and diff. The Appellants’ argument on this point was that, if the tyre or any other items were damaged as a result of the accident, the Police would have recorded such items, parts such as wheel drum, rear hub, steering, wheel bearings and wheel stances. These according to their argument, could have been detected and then included in the Police report. Their further argument on this point was that if those items were destroyed in this accident as claimed, the motor vehicle could have not been driven right from the accident scene to the Police station and thereafter to Lusaka carrying 32 bags of charcoal they referred to DW4’ evidence at page 164-168 where DW4 indicated what would have been the effect if any of the items were damaged. DW4 testified that if a wheel stud that secures the hub were damaged during the accident the two tyres on the right side would have come off and the vehicle could not have moved from the accident scene to the Police station and to Lusaka. They pointed out that quite contrary to these assertions, the Respondents’ motor vehicle moved first to Kapiri Mposhi Police station and later to Lusaka ferrying 32 bags of charcoal. Their argument therefore was that this evidence did not support the findings of the lower court. In arguing this point they argued that, looking at the description of the maneuvers of the vehicles as recorded at page 11 of the Supplementary record and the account of PW1 at page 24 of the main record, there was no much impact between the two vehicles involved in the accident. According to them looking at the description, the J8 two motor vehicles only scraped or just brushed each other. Citing the case of Wilson Masauso Zulu V. Avondale Housing Project Limited (1) and Philip Mhango K Dorothy Ngulube and others (2) they argued that although as a general rule, this court does not reverse findings of fact by the trial court except where this court is satisfied that such findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of those facts, this case fell in this exceptional category. They submitted therefore that the findings of the lower court were not supported by all the facts adduced m the evidence. Accordingly to them the evidence did not support the court findings that the motor vehicle was extensively damaged as a result of the accident. On this ground, they argued the appeal should succeed. On ground two the Appellants’ argument was more or less a repeat of ground one. Their argument was that the court should have accepted DW2 evidence or should have given reasons for not believing him. The Respondents in response argued that the arguments in ground one covered ground two and three. They argued that the lower court was on firm ground when it awarded damages in the sum of K25, 000,000,00. They pointed out to us that the figure of K8, 7780,350.00 resulted from the composition of the Police report over the damage to the Respondents’ truck after inspecting the accident in question. The Police listed the items that were damaged. The Appellants Company presented that list and their insurers Madson Insurance had in turn inspected the truck and assessed the cost of repairs for the truck. According to the Respondents the Appellants’ insurance company when assessing the repair took into account the Police J9 report and assessed the costs as K25, 778,350.00, The Appellant insurance company paid the K15, 000,000.00 leaving the balance of K10, 778,350.00, The Learned trial Judge at page 83 of the record having disbelieved the evidence that the shrivel bearings and seal were damaged in the accident subtracted KI,000,000.00 from the K9,778,350,00 leaving the balance of K8,778,350.00 which she entered as judgment debt to the Respondents. The Respondents therefore argued that if the Appellants questioned the valuation of these repairs, they should have questions their own insurance company and not them. They submitted that the Appellants Company never challenged the assessment to the repairs caused by its own insurance company. They further argued that at 137-138, the Appellants’ insurance company Madson Insurance Company acknowledged that they received the Police report before assessing the costs of the repairs. Dealing with the argument raised at the lower court that the court placed no weight at DW4’s evidence, the Respondents argued that DW4 was their employee and their driver as such he had an interest to serve, secondly they argued that he, DW4 had paid KI 62,000.00 and admitted in cross examination that he was a mere mechanics with no assessment experience of valuing motor vehicles. On the quantum of K25,000.000.00 they argued that relying on a wealthy of authorities such as Orman Corrigan,(Suing by his next friend) Ablert John Corrigan v. Tiger Limited and ADBI Jumale (3) and Zambia Publishing Company and Pius Kakungu (4) this court can only interfere with this quantum of damages if it is convinced that the trial court acted on some wrong principles or misapprehended the facts or that the award was so high or so low as to be utterly unreasonable. This was not so J10 in the case before this court. On ground three the Respondents argued that the lower court was right in awarding costs to the Respondents. Citing the cases of George Chishimba v Zambia Consolidated Copper Mines Limited (5) and YB and F Transport and Supersonic Motors Limited (6) they pointed out that a successful litigant should not normally be deprived of his costs unless the successful party did something wrong in the conduct to the action. We have looked at the issues raised in this appeal. As clearly stated this is an appeal against the quantum to damages. We agree with the Respondent that the general principle is that costs follow' the event. There are however, occasions that the court for some good reasons uses its discretion and make no order on costs. Applying the principle in the case of Orman Carrigan (suing by his next friend}, Albert John Carrigan V Tiger Limited and ABDI Jumale (3), in this case we cannot fault the lower court in awarding costs to the Respondent. Coming to grounds 1 - 2, its trite law that this court rarely interferes with the findings of the lower court. This court will only interfere with the findings of facts made by the lower court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant facts, etc. See the case of Wilson Masauzo Zulu V. Avondale Housing Project Limited (1). In this case before us the findings by the lower court at page 83 were anchored on the evidence before the lower court. There was evidence that the Appellant gave the Police report to its own insurance company, Madson Insurance Company which Company inspected the motor vehicle and evaluated the repair costs. The Appellants have argued that the JI 1 claim was exaggerated and that if all its items listed in the Police report were damaged, the motor vehicle would not have drove from the accident scene to Kapiriposhi Police station and thereafter to Lusaka carrying 32 bags of charcoal. The evidence of the Respondents, which the trial court accepted, is that there were some repairs done which made it possible for the vehicle to move, and that as a result of the accident, parts like the hub and half shaft were damaged and that because of all these damaged parts to the truck the repair costs come to £25,778,350,00. This figure of K25, 778,350.00 was arrived at by the Appellant’s own insurance company and as rightly argued by the Respondent’s company, tire Appellant Company never challenged these findings. It is rather late in the day for them to challenge this, at the High Court and much more before us. We therefore hold that the lower court correctly awarded the sum of £25,778,350.00 which after deductions of £15,000,000.00 paid by Madson Insurance Company plus £1,000,000.00 come to £9,778,350.00. We cannot therefore fault the lower court, we find no merit in the appeal we dismiss the appeal with costs. The £9, 778,350.00 will attract interests at bank of Zambia recommended lending rate effective from 25 July, 2003 to judgment of the High Court and thereafter the deposit rate up to the final payment with costs. L. P. Chibesakunda SUPREME COURT JU C. S. Mushabati SUPREME COURT SUPREME COURT