David Katumbi v Attorney General (APPEAL NO. 176 OF 1999) [2006] ZMSC 42 (28 March 2006)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 176 OF 1999 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: DAVID KATUMBI APPELLANT AND THE ATTORNEY GENERAL RESPONDENT CORAM: Sakala, CJ., Mumba and Silomba, JJS On 6th December 2005 and 28th March 2006 For the Appellant: Mr. I. C. Chali, of Chama Chali and Company For the Respondent: NIA JUDGMENT Sakala, CJ., delivered the judgment of the Court. Case referred to: > 1. Abraham Mohamed and Alantra Tr~nsport vs Chumbo (1993/1994) ZR p.4 ' ~· . . J1 This is an appeal from a Ruling of the Deputy Registrar on assessment of damages in which the Appellant was awarded, in October 1999, the sum of KS,226.90 as the cost for 3,990 litres of regular petrol and the sum of K475 for the cost of 19 drums seized by the Respondent in 1984. The short facts of the case were that in or about October, 1984, the Appellant was prosecuted before the Subordinate Court on a charge of transporting 19 drums of dangerous petrol in bulk without a licence, contrary to Regulation 16 (I )(2) of the Petroleum Act, Cap. 435 of the Laws of Zambia. Sometime in I 985, he was acquitted by the High Court which further ordered that the Appellant be given back the petrol and the 19 drun1s. The Respondent failed to return the petrol and the drums. The Appellant commenced these proceedings by way of a writ of summons. Subsequently, the Appellant obtained judgment in default of defence and damages to be assessed. The Appellant thereafter filed a notice for assessment of damages. In support of the notice, the Appellant gave oral evidence. In cross examination, he explained that he bought the regular petrol on 11th November, 1984 at K5,226.90 and paid K475 for the 19 drums. He testified that he was claiming to be paid the value of the regular petrol and the ,,. 19 drums at the current price. The Deputy Registrar considered the evidence and the submissions before him. On the authority of the case of Abraham Mohamed and Alantra Tr~nsport vs Cbumbu (t) in which this Court laid down the general rule that the normal measure of damages for tort is the value of the chattel at the time of the loss; the Deputy Registrar held that the Appellant was entitled to the value of 3,990 litres of regular petrol as at 1984. This also applied to the 19 drums. The Appellant was accordingly awarded KS,226.90 for 3,990 litres of regular petrol an~ K475 for the 19 drums seized in 1984. Hence this appeal to this Court. The appeal was based on one ground, namely, that the Deputy Registrar's approach to the assessment of damages was wholly wijust in the circumstances of this case. Cowisel for the Appellant relied on written heads of argument filed in Court based on this one growid. The gist of the written heads of argument was that the award by the Deputy registrar was a total denial of justice; and that applying the rule in Abraham Mohamed and Alantra Transport case to the present case would be unjust, considering the length of time it has taken for the case to be concluded. It was submitted that in order to do justice to the present case, the approach should be to award damages iti accordance with the value of the petrol and the drums at the time of the assessment. 1 .. /, •;_ .1 We have considered the Ruling of the Deputy Registrar and the submissions by counsel for the Appellant. There were no submissions on behalf of the Respondent but we proceeded to hear the appeal in accordance with our rules as we were satisfied that the Respondent was aware of the appeal coming up for hearing. We must point out at the outset that the principle enunciated in the case of Abraham Mohamed and Alantra Transport vs Chumbu <1), although that case was decided in 1993, still stands as good law. That case set the general rule that the normal measure of damages for tort is the value of the chattel at the time of the loss. In the instant case, we agree that the matter took long to conclude but the length of period is always taken care of by the award of interest. In our view, it would be unjust enrichment to award damages in accordance with the value of the petrol and the drums at the time of the assessment. For the foregoing reasons, this appeal is dismissed. We make no order as to costs. ········· ·· ·~ · · · ············ : .. E. L. SAKALA CHIEF JUSTICE F. N. M. MUMBA . SUPREME COURT JUDGE ·· ···· ·· ·~ · · · · · · ... S. S. SILOMBA SUPREME COURT JUDGE