Kalulu v Blantyre water Board (Civil Cause 275 of 1987) [1990] MWHC 10 (8 March 1990)

iste. - IN THE HIGH COURT OF MALAWI ty PRINCIPAL REGISTRY 2am ramp oe me a a aR CIVIL CAUSE NO. 275 OF 1987 ar rere eR eR am Se a a NY. ERD eS RR Sree ems BETWEEN: G. B. KALULU ...22.55500500080e00000 2>ooeo PLAINTIFF ~- AND - BLANTYRE WATER BOARD ...... oer20ee0-0 DEFENDANT Coram: MTEGHA, J. Nakanga, Counsel for the Plaintiff Makhalira, Counsel for the Defendant Mkumbira, Official Interpreter Gausi (Mrs), Court Reporter OURT OF , wie © MAL iy = 6 JAN1992 et ca eh me Re me Cet te tee cm cee pee eS ee mth Mee tne ah eh wD pete Se cm fang er i ER mem it es eon cae ee LIBRARY The plaintiff in this case, G. B. Kalulu, is claiming from the defendant, Blantyre Water Board, a corporation incorporated under Blantyre Works Act Cap. 72:02, for damages for wrongful entry on his premises and disconnecting water to the same premises for a period of 24 hours on 13th November, 1986. In the alternative, he is claiming damages for trespass and negligence and or breach of statutory duty in disconnecting the water for 24 hours. The particulars of negligence have Bee itemised and these are: (a) Failing to take any or any reasonable care to see that the plaintiff should not have his water supply interrupted for no just cause. (b) Causing or permitting the said water supply to be disconnected when the plaintiff had paid all the money due to the defendant. (c) Failing to warn the plaintiff of the said disconnection: and (d) Failing to provide a properly supervised work force so as to avoid the unjustified disconnection of the plaintiff's water supply. He is also claiming special damages of K105.00 as loss of, one month rental for the premises which were vacated by tenants after &. “> . water was disconnect.ed. ee aa The defendant denies negligence and pleads that it was entitled to disconnect the water because his bill of K11.91 was outstanding for three months, during which period, acting on the plaintiff's complaint, the defend- ant was observing the water consumption. The plaintiff's evidence was that in 1986, he was the owner of Plot No. 21018/63 at Zingwangwa. There was a house on this plot in which three tenants were Living, giving him a rental of K105.00 per month. He used to pay for the monthly water rates. In July, he got a bill for June for water rates for K43.04. This bill was considered to be too high and he took it to the defendant's offices to verify. They told him they would go and investigate, but in August, he got another bill for K4.62. He went back to ask which bill to pay; he was told to pay the bill for K4.62. He paid on 22nd September, 1986, Exhibit P2. Why he paid K9.00 instead of K4.62 is not clear. In October, 1986, he paid K4.75. To his surprise, on 13th November, his water supply was disconnected. He went to the defendants offices and he was told to pay K5.00 reconnection fee. This he did on Exhibit P4, and the water was reconnected. He was not satisfied with this, so on 13th February, 1987, he wrote to the defendant demanding K105.00 for the loss of income from his tenants who had moved out of the premises. He also demanded K5,00. reconnection fee, to be refunded to him. The defendant answered this letter and its reply was as follows: "IT ish to apologise for the error made in disconnecting your water supply, as you rightly pointed out that the mistake was made by our office. The error was rectified by our credit note no. 1886 dated 29th November. 1986, for K34.00 In respect of damages to personal behaviour, the Board acknowledges with regret for the inconvenience caused. The Board does not, however, accept the charge on the loss of K105.00 due to tenants vacating your premises. This is because when your water was dis- connected on 14th November, 1986, you came to the Board's offices personally and paid the reconnection fee of K5.00 and the water was reconnected the same day. For this reason, I see no connection or relevance between the water disconnection which only lasted for a day and your premises standing unoccupic d for a month. i hope the foregoing paragraphs answer your letter. Please find enclosed a refund of K5.00 for reconnection fee made in error." When the plaintiff received this letter, he wrote back in these terms: 2 = oe 9 0 & 6 “As you have now admitted that the mistake was caused by you, I, therefore, claim from you the sum of K300 as general damages for the inconvenience and embarrass- ment caused by you, K100.00 for damages for trespass to land and I also claim K105.00 for loss of rent. This is so because you failed to exercise reasonable care in performing your duties and thereby occasioned damage. You had ample time in which you should have found that I paid my water bill. If you cannot pay me the sum of K505.00 I will have no option but to institute legal proceedings against you." ee a ee ye Me, Se ee ae <aaee rina geen He thereafter did indeed institute legal proceedings. In cross-examination the plaintiff did agree that he was told to pay the recollection fee and the smaller bill, but not the K43.14 which the defendant would have to investigate. It was the evidence of DW1l, Davis C. Phiri, a Revenue Supervisor employed by the defendant, that if a customer complains about high water bills, he would be required to pay the amount and the Board would start to investigate, and if he has not paid he would be disconnected. It was the evidence of DW2, Mpaluko, who was employed by the defen- dant as a Senior Accountant, that in March 1987, he was told that the plaintiff was in the office complaining about the disconnection. He checked the books and found out that he was disconnected because he had not paid his bill. After checking, he was given a credit note of K34.090 and waived the reconnection fee. That is why he wrote the letter refun- ding K5.00. This then is the evidence before me. There is no dispute at all that the water supply was disconnected from the plaintiff's premises. There is also no dispute that the supply was reconnected the same day after the plaintiff paid the reconnection fee of K5.00. The question which needs to be determined is whether the disconnection was wrong or the defendant, through its agents and/or servants were negligent in doing so. If such were the position, the next question to be determined is whether there was trespass to land in the process of disconnecting the water supply. It is Hr. Makha- lira's submission that uncer $.16(e) of the Blantyre Water Works Act the defendant wes entitled to enter upon the plairn~ tiff's premises and discornect the water supply because there was an outstanding fill of at least K11.91 after a credit note of K34.00 was granted to the plaintiff. Section 18 of the Act stipulates: “It shall be lawful for ihe Board or any person duly authorised by it in writing to diminish, withhold, 4/ oe suspend, stop, turn it or divert the supply of water through or by means of any service or public fountain either wholly or in part or wherever the Board may think fit, and without prejudice to any water rate, meter, rent or other sums due or to become due under the Act - HIGH COUR? SS e Aja (e) if default be made in payment of any monies due under the Act from the occupier or owner of the pre- mises or so long as such default continues or at the request of the owner of the premises; or..... coo! It is clear before me that the plaintiff did owe some money, that is, about K11.91. This amount was discovered by the defendant when it gave the plaintiff a credit note of K34.00 on 29th November, 1985. This K34.00 was part of the sum of K43.14 being the June bill, which the plaintiff complained about in July, and he was told by the defendant that the defendant would investigate. It would appear, therefore, that from July up to 13th November, 1986, the defendant did not communicate to the plaintiff the result of its findings. Meanwhile, the plaintiff had been paying all monthly charges from July up to the date of the discon- nection, The defendant's evidence is that while the defendant is investigating a complaint from a consumer, the consumer is expected to pay for the water which he has reasonably consumed. This, in my view, is exactly what the plaintiff did; he was paying all the bills that were sent to him. The money which he owed the defendant was only ascertained on 29th November, sixteen days after the disconnection, The discon- nection of the water supply was not, therefore, due to the K11.91 which was discovered on the 29th November, 1986. ‘The defendant's defence that it was justified in disconnecting the water supply cannot be accepted. I am fortified in these findings by the admission which the defendant made in its letter of 4th March, 1987. It is Mr. Nakanga's submission that in disconnecting the water supply the defendant was negligent and trespassed the plaintiff's land which entitles the plaintiff to damages which he has claimed. In my considered opinion, the defendant failed to exercise the reasonable care in performing its duties. From July 1986, when the plaintiff went to complain about the high June water bill, to 13th November, 1985, the defendant should have certainly rectified the mistake, especially as the mistake was brought to its notice. At any rate, there was ample time for the defendant to tell the plaintiff what amount, out of the K43.14, the plaintiff should pay; instead, the defendant kept him in suspence until the disconnection. Negligence has, therefore, been proved to the requisite standard. B/essce It is also my considered view that when the defendant's servants entered upon the plaintiff's premises for purposes of this disconnection, they were trespassing as they went there to execute unlawful act. I will now consider damages. The water was reconnected the same day, and the inconvenience and embarrassment were minimal. For damages for negligence and trespass, I would award K200.00 to the plaintiff. The plaintiff also claims K105.00 as special damages > as rentals from the tenants who vacated the premises because of the disconnection. I am afraid there was no evidence to show that the plaintiff suffered this damage; water was dis- connected for a period of less than 24 hours, how could the plaintiff claim for one month rentals? Moreover, there was no scintila of evidence to show that the tenants left the premises; there was no evidence to show that the plaintiff actually had tenants on the premises. Special damages should be strictly proved. This head or damages cannot, therefore, succeed, In the premises, I award K200.00 as general damages for trespass and negligence. Costs, on the subordinate scale, are awarded to the plaintiff. This case could pro- perly have been brought in the subordinate court. Pronounced in open Court this 8th day of March, 1990 at Blantyre. 1, ~— YW 2, H. M. Mtegha JUDGE