Fredrick Chola Simwizye v Zambia Consolidated Copper Mines Ltd and Anor (Appeal 117 of 2006) [2007] ZMSC 147 (5 September 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 117/2006 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: FREDRICK CHOLA SIMWIZYE Appellant AND ZAMBIA CONSOLIDATED COPPER MINES LIMITED 1st Respondent ATTORNEY GENERAL 2nd Respondent Coram: Lewanika, DCJ. Mumba and Chitengi, JJS. on 5th December, 2006 and 5th September, 2007. For the Appellant : Mr. M. Masengu of Messrs Michael Masengu & Company For the 1st Respondent: Mr. P. M. Chamutangi - Legal Counsel For the 2nd Respondent: No Appearance JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to: - 1. Revill V Newbery (1996) ALLER 291. 2. Augustine Kapembwa V Danny Mwambolwa and Attorney- General (1981) ZR 127. 3. Mohamed V Attorney General (1982) ZR 49. 4. Zulu V Avondale Housing Project Limited (1982) ZR 172. 5. Attorney-General V Achiume (1983) ZR 1 - J2 - In this case, the Appellant commenced an action in the High Court founded in negligence against the Defendants. This case was decided by the learned trial Judge on the evidence of the Appellant only. Although the Defendant entered Defence to the Statement of Claim they did not present witnesses to give evidence despite several adjournments. At the trial the Plaintiff gave evidence that on the 26th July, 1996 he went to see his sister in Wusakile around 06:00 hours only to find her ill. Thereupon he went to dig herbs which her sister had requested. He went to the western side of Wusakile with a small boy. On the way the hoe dropped from its handle and he went in the bush near the South Ore Body Shaft to look for a stick to fix the hoe in the handle. As he was fixing the hoe he heard a gun shot from the direction he was going to. Thereafter, he sawr four men coming from that direction, pursued by Mine and Zambia Police Officers. Within a short time there was another gunshot and a bullet hit his right leg and he fell down. The boy ran away. He was subsequently taken to Wusakile Hospital where eventually his leg was amputated. When cross-examined by counsel for first Respondent, he said he knew that the South Ore Body Shaft belonged to the first Respondent. But he denied that he was part of the large group of people. He said that he was not -J3- aware that he was supposed to obtain permission to enter the area. Nor was he aware that the place used to be invaded by thieves trying to steal copper and that the Mine Police and Zambia Police used to have running battles with thieves in the area quite often. He said he saw the groups of people running but denied being part of the group. The learned trial Judge visited the scene of the incident. At the scene, the Appellant said he was on the road and that he was going towards the shaft. The Appellant showed the court where he was when he was shot. The learned trial Judge’s observation was that the point where the Appellant was, was about 100 metres from the shaft. The Appellant said that the barrier to the shaft had not been there at the time. Lastly, the Appellant said that the area had a few shrubs and that most of them were quite far from where he has been when he was shot. In his Statement of Claim the Appellant alleged that the Respondents were negligent. As regards the first Respondent the Appellant alleged that: ■ (a) The first Respondent invited the second Respondent for whatever purpose and led the second Respondent through their operations in which they fully participated. - J4 - (b) The first Respondent failed to exercise a duty of care or to inform or advise the second Respondent that their security areas had boundaries. In respect of the second Respondent the Appellant averred that: - (a) The second Respondent failed to exercise the duty of care or/and in the alternative negligently shot in all directions wantonly. (b) The second Respondent opened fire or began shooting their guns in unjustified circumstances and shooting the Appellant who was an innocent person for no cause at all. The Appellant averred that because of the Respondent’s negligence he suffered personal injuries resulting in the amputation of his right leg and claimed damages for loss of his right leg, loss of amenities of life, pain and suffering and aggravated damages. The learned trial Judge dismissed the Appellant’s claim in its entirety. The learned trial Judge said that certain aspects of the Appellant’s evidence raised questions. The learned trial Judge also said that after visiting the scene he observed that the Appellant was shot barely 100 metres from the first Respondent’s plant. On the evidence of the appellant that he - J5 - saw a group of people coming from the direction where he was going, the learned trial Judge concluded that the group of people was coming from the first Respondent’s plant. And judging from the position from which the Appellant was shot, the learned trial Judge found that both the group and the appellant were already in the first Respondent’s plant area. The learned trial Judge then observed that the Appellant’s evidence did not give any satisfactory explanation as to why the Appellant chose to go and dig herbs at such an unusual hour of 06:00 hours. The learned trial Judge also observed that the scene of the shooting showed that there were more shrubs and bushes leading away from the first Respondent’s plant but the Appellant’s evidence did not disclose what that particular medicine herb was which could only be found very close to the first Respondent’s plant and not in the bush situated away from the first Respondent’s plant. In the circumstances, the learned trial Judge found the possibility that the Plaintiff was one of the group which invaded the first Respondent’s plant to be very high; that the shooting of the Appellant was not as a result of careless firing and that the shooting was intended to maim or injure anyone in the group and the question of negligence did not arise. The learned trial Judge then considered the lawfulness or unlawfulness of the actions of the Respondent’s officials and held that such other matters were not pleaded and that the - J6- Appellant’s claim was based on negligence which the Appellant failed to prove. The Appellant now appeals to this court and advanced two grounds of appeal. The first ground of appeal is that the lower court erred both in law and fact when it found that the Respondents were not liable because the Plaintiff did not plead for trespass to the person. The second ground of appeal is that the lower court erred both in law and fact when it held that there was no negligence on the part of the Respondents because the Appellant must have been part of the alleged mob which tried to invade the first Respondent’s property and that in any event the Appellant did not disclose to the Court the medicine he was looking for in the shrubs of the 1st Respondent’s land. The Respondents had a duty of care at common law even when the Appellant was alleged to be a trespasser or was about to commit a crime. The Respondent ought to have used reasonable force to a group of people referred to as a mob who were unarmed. The shooting which maimed the Appellant was done more than 100 metres outside the plant area. - J7- Counsel filed written heads of argument. Mr. Chamutangi, learned counsel for the first Respondent, also made brief oral submissions. In arguing ground one, Mr. Masengu, learned counsel for the Appellant, defined negligence as: - (a) A legal duty to exercise care and (b) A failure in the exercise of the care necessary in the circumstances of any particular case. Mr. Masengu then submitted that the firing of live ammunition cannot be done without duty of care unless in an act of war; Negligent shooting need not always he careless shooting as the learned trial Judge held. On ground two, Mr. Masengu submitted that use of excessive force amounts to an actionable wrong and suing in negligence amounts to actionable wrong(sic). As authority for this proposition Mr. Masengu cited the case of Revill V NewberryW. He pointed out that the appellant was maimed not only because of lack of duty of care by the Respondents but also because of a deliberate will to maim. Mr. Chamutangi, learned counsel for the first Respondent argued grounds one and two together. -J8- In his written submissions Mr. Chamutangi submitted that the appeal is basically against a finding of fact. Mr. Chamutangi then cited the case of Augustine Kapembwa V Danny Mwaimbolwa and the Attorney General!2) as authority for the statement that an appellate court would be very slow to upset a finding of fact made by the trial court who heard the witness. Mr. Chamutangi pointed out that in this case the learned trial Judge even visited the scene of the shooting. On the case of RevillW which Mr. Masengu cited, Mr. Chamutangi submitted that Revill!1) is distinguishable from the present case because the facts are different. Mr. Chamutangi then submitted on matters which are in the Defence but not in evidence. Needless to say, pleadings as such are not evidence upon which a court can decide a case. In this case the Respondents did not lead evidence. He concluded by saying that it would be against public policy for a trespasser or criminal to benefit from his crime. Mr. Chamutangi’s brief oral submissions are a repeat of his written submissions. We have carefully considered the evidence that was before the learned trial Judge, the submission of counsel and the judgment appealed against. -J9- The Respondents did not lead evidence in support of their Defence. But as we said in Mohammed V Attorney General^, the fact that the defence has failed does not relieve the Plaintiff of his burden to prove his case and entitle the Plaintiff to a judgment. The Appellant in this case was, therefore, bound to prove his case although the Respondents did not lead evidence in defence. Therefore, the question arises on the evidence whether on a balance of probabilities, the Appellant proved his case. After analyzing the evidence the learned trial Judge made a finding that the Appellant was one of the group of persons who had invaded the first Respondent’s plant area. As Mr. Chamutangi rightly submitted this was a finding of fact which an appellate court will be slow to interfere unless certain conditions are fulfilled. We have said in many cases, among them, Zulu V Avondale Housing Project Limited!4), Attorney General V Achiumd3) and the Augustine Kapembwa caseffl cited to us by Mr. Chamutangi, that before we can reverse findings of fact made by a trial Judge, we would have to be satisfied that: - (a) the findings in question were either perverse; or (b) made in the absence of any relevant evidence; or (c) upon a misapprehension of the facts; or - J10- (d) they were findings which on a proper view of the evidence, no trial court acting correctly could reasonably make. We have carefully read the judgment of the learned trial Judge and we are satisfied that he properly evaluated the evidence and that none of the grounds upon which we could interfere with a trial court’s finding of fact is present in this case. The learned trial Judge was painstaking and even went to the scene to see for himself and found that in fact, contrary to Mr. Masengu’s submissions, the Appellant was shot within the first Respondent’s plant area. In the circumstances, we have no basis upon which we can interfere with the learned trial Judge’s finding that the Appellant was one of the group of many people who invaded the first Respondent’s Plant. Having found that the Appellant was one of the group of persons who invaded the first Respondent’s plant, the learned trial Judge also made a finding that the Appellant was not carelessly shot but that the shooting was intended. On the evidence, we find this finding amply supported by the evidence and we cannot interfere with it. The shooting having been intended, the issue of negligence as the learned trial Judge rightly held in his judgment, does not arise. It is clear to us that having regard to the fact that the Appellant was shot in the leg, the shooting was intended not to kill the Appellant or - JI 1 - any of the other persons in the Appellant’s group but only to disable them. It is also clear to us that there having been only two shots fired there was no indiscriminate shooting as Mr. Masengu’s submissions suggest. In the event, we do not accept Mr. Masengu’s submissions on ground one that there was negligence proved. The first ground of appeal fails. The first ground of appeal having failed, the whole appeal must fail. We have, however, taken the trouble to deal with ground two also. In ground two, Mr. Masengu raised the issue of use of reasonable force; and his arguments and submissions and the case he cited to support his submissions on ground two deal with use of reasonable force in defence of person or property. These arguments would be relevant in a case of assault and battery. But in this action, the Appellant’s pleaded case was one of negligence. Of course, both assault and battery and negligence may result in the victim suffering injury. But the particulars of negligence are totally different from those of assault and battery*. In the circumstances the learned trial Judge could not find for the Appellant on a claim of assault and battery as it was not pleaded, in the alternative to the claim of negligence which was pleaded. -J12- The result of our juc|gment js that we find no merit in this appeal and we dismiss it. Having regard to the circumstances of this case, we make no order as to costs. D. M. LEWANIKA DEPUTY CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE SUPREME COURT JUDGE