Even Chaaba v Maxwell Chaaba (2004/HP/A.40) [2005] ZMHC 2 (25 July 2005)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) 2004/HP/A.40 BETWEEN: EVEN CHAABA PLAINTIFF AND MAXWELL CHAABA DEFENDANT ( FOR THE PLAINTIFF : Mr. M. N. NDHLOVU - CHIFUMU BANDA & ASSOCIATES FOR THE DEFENDANT : MR. M. KABESHA - KABESHA & CO. J U D G M E N T ON A PP E A L Cases referred to: 1. A. G. v Mupundu 1984 Z. R. 6 2. A. G. v Mumba 1984 Z. R. 14 3. Kunda v A. G. 1993/94 Z. R. 1 This is an appeal by the Plaintiff against the decision of the Subordinate Court, Class one, Mumbwa. The decision dismissed the Plaintiff's Claims for Compensation. The Appeal was heard by way of record. In the Court below, the Plaintiff Claimed the following reliefs:- 1. 2. 3. 4. Compensation for all the Works done on the Farm. Compensation for clearing 14 hectares of land. Any relief the Court may deem fit. Costs. The evidence on record shows that the Plaintiff is the younger brother to the Defendant. They are born from the same Father and mother. Their Father, D. W.2 gave each one of them a piece of land. The Defendant was given the land giving rise to this case. While the Plaintiff was given another piece of land elsewhere. The Plaintiff left his land and went to Lusaka. The Defendant stayed on his land. Later, the Defendant invited the Plaintiff from Lusaka, where he fell sick, to come and live on his land. The two lived in the Defendant's House. Differences arose between them. Their Father and the local Committee tried to reconcile them but in vain. The Defendant complained that their differences arose because the Plaintiff was disrespectful towards him and was uncompromising. There was evidence from their Father that the Plaintiff was disrespectful to the Father too. As a result of differences, the Plaintiff moved out of the Defendant's House and built houses and made a well on some spot within the Defendant's land. He built the House in the Defendant's paddock. Their differences were taken before the Palace Court of Senior Chief Shakumbila. It resolved that the Plaintiff vacates the Defendant's land. The Plaintiff agreed to do so but made Claims against the Defendant as stated above. During trial, the Plaintiff put his Claims at K97 million as Compensation for expenses and K20 million for disturbing his business as a Dunavant buyer. On behalf of the Plaintiff, Mr. Ndhlovu advanced two grounds of appeal. Ground one is that Contrary to the assertion at page J-12, by the learned trial Magistrate Class I that: "he the Plaintiff without permission started cutting or clearing a new field where he is growing Cotton Seed and Maize," the Plaintiff actually authorized to occupy the disputed land by his Father. Ground two is that the Judgment of the learned Magistrate did not address the question of Compensation of the expenses the Plaintiff incurred, in clearing 14 hectares of land and instead determined the question of ownership of land which was not in dispute. For convenience, I shall deal with the Second ground first. In his submission on this ground, Mr Ndhlovu quoted a portion of the trial Magistrate1s Court and attacked it. The quoted portion relates to ownership of the land which was not the issue in this matter. The quoted and attacked portion was not infact the verdict in this matter. After evaluating the evidence, the learned trial Magistrate dismissed the Claim in these words: \\This Court is failing to agree with the Plaintiff's prayer because he shifted from the home of the Defendant to the paddox where the Defendant's animals were to graze and destroyed the trees there, despite being warned several times. When the Plaintiff shifted .................. he should have gone to their Family village at his Father and start a new life since he had failed to develop his own land which his Father gave him. That being the case, the Plaintiff's Claim cannot be accepted but dismissed with Costs. Therefore, judgment is passed in the Defendant's favour ................. the Plaintiff should vacate the Defendant's land and go back to the family village at Situmbeko. And is given three months in which he should completely vacate the said land." In my view, the foregoing is the verdict in this matter and not the portion quoted by Counsel. Contrary to ground 2, the learned trial Magistrate considered the Claim for Compensation. He dismissed it on merits. He held that the Plaintiff was not entitled for Compensation for the Houses and well because they were made without authority and against the Defendant's express advice, on the Defendant's paddox. There is evidence at page 21 of the record of appeal that the Plaintiff's move destroyed the Defendant's paddox. This was not challenged by the Plaintiff. In my view ground two is misplaced. So are the arguments thereon. The trial Magistrate's decision to dismiss the Claim was based on evidence before him. In my view, he was justified in arriving at the verdict. I affirm his decision. Equity and the case of Spiro Konidaris and Ramtal Kanji Dandikar which the Plaintiff relied on do not help him because, from the evidence on record, he was in the wrong. Equity demands that he goes to it do so with clean hands. I affirm Mr. Kabesha's argument that the Plaintiff did not go to Court with clean hands. Therefore, he was not entitled to Compensation. I would add that the case gave rise to the issue of proof of the Claim. The case started as one for general damages. During trial, the Plaintiff Claimed specific figures of K97 million, for the expenses and K20 million for loss of business. These two figures constitute special damages or loss. The legal position is that special damages must be specifically pleaded and strictly proved. Such proof involves production of documents in the form of Receipts or Invoices. See: 1. A. G. v Mpundu 1984 Z. R. 6 2. A. G. v Mumba 1984 Z. R. 14 3. Kunda v A. G. 1993/94 Z. R. 1 In the present case, the Plaintiff's evidence on the two figures was as follows: "I used to hire people to clear all the trees in my field .......... I pray to this Court to award me my expenses amounting to K97,000,000. This is because I had a borehole here, some houses and when I shift to a new land I will need to clear new fields, new borehole and build some houses. And I also add K20,000,000 for disturbing my business as Dunavant buyer." See the bottom page 3 of the case record. This evidence was casual. It fell short of what is required to prove special damages. More over, when the Court below visited the field, it transpired that what the Plaintiff referred to as a borehole was infact an open well which was dry. See page 4 of the case record. Accordingly, ground two fails. I now move on to ground one. On this ground, Mr. Ndhlovu made lengthy submissions. The gist of his submissions is that the Plaintiff was allowed by the Father to cultivate the land in question. That though the Father lived at Situmbeko, the land still belonged to him because it was issued to him. He relied on Mwiinda v Gwaba 1974 Z. R. 188 and Section 4 of the Registration and Development of Villagers Act 1971. In reply on behalf of the Defendant, Mr. Kabesha submitted that the Court below could not be faulted for holding that the Plaintiff cleared the new field where he grew Cotton Seed and maize without permission. He argued that there was evidence from D. W.2 the Father that he had given the land to the Defendant. That it was the Defendant who decided as to who should use it and not the Father. That the Father referred the Pia intiff to the Defendant over use of the land. He pointed out that from record, there was no evidence that the Plaintiff had written authority from the Father to occupy the land. He pointed out that the Plaintiff had no objection to vacating the land. I have considered the evidence and arguments on this ground. A perusal of the record shows that the trial Magistrate1s finding was based on the evidence before him. This evidence was from the Defendant and the Father. Their combined evidence was that it was that the land was given to Defendant by the Father. That it was the Defendant, and not the Father, who decided who would use the land. Indeed, the Father referred the Plaintiff to the Defendant over use of the land. This evidence is found at pages 19, 20, 21, 22, 24, 26 and 28 of the Record of appeal. Further in paragraph one of the letter dated 12.2.99 to the Plaintiff, the Father referred the Plaintiff to the Defendant, over the latter's wish to have a piece of the land. After being so referred, the Plaintiff disregarded the Defendant1s authority over the land. He simply moved into the Defendant's fenced grazing land, occupied it and built houses and made a well thereon. This in my view is the disrespect the Defendant is complaining of, and which restrained their relationship; resulting into the Plaintiff being told to leave the land. There is evidence from the Father that the Plaintiff had shown disrespect towards the Father too. This evidence is found at page 26 of the record (bottom) and page 28 (middle). So, I hold that the finding challenged was based on the evidence before the learned trial Magistrate. So he cannot be faulted. I uphold his finding. Ground one also fails. The appeal is hereby dismissed. I award Costs to the Defendant, to be agreed upon and in default to be taxed. Delivered this 25th day of July 2005. ambwa UDGE 9