Namukonda v Mudenda and Freborn Trading Ltd (APPEAL No.144/2021) [2023] ZMCA 193 (3 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA {Civil Jurisdiction) APPEAL No.144/2021 BETWEEN: AND APPELLANT GEOFFREY KALOMO MUDENDA FREBORN TRADING LIMITED 1 ST RESPONDENT 2ND RESPONDENT Coram: Kondolo, Makungu and Ngulube, JJA On the 15th day of June, 2023 and the 3 rd day of August, 2023 For the Appellant: For the Respondent: Mr. C. Taf eni of Suba Tafeni & Associates Miss C. Mwambazi of Douglas & Partners, Holding brief for Chibeluka & Partners JUDGMENT Makungu, J . A delivered the judgment of the Court. Cases referred to: 1. Patrick Dickson Ngulube v Rabson Malipenga (2015) Z. R 46 2. Philip Mhongo v Dorothy Ngulube and Others (1983) Z. R 61 3. Edson Mwanza v Chibuluma Chati Farms Limited & 3 Others CAZ 186/2019 4. JZ Car Hire Limited v Malvin Chala and Scirocco Enterprises Ltd (2002) Z. R 5. Moore v D. E. R Limited (1971) 1 WLR 1476 6. Kuta Chambers (Sued as a firm) v Concillia Sibulo (Suing as administratrix of the estate of the late Francis Sibulo) SCZ Appeal No. 122 of 2012 (Selected Judgment) 7. General Nursing Council of Zambia v lng'utu Milambo Mbangweta (2008) Vol. 2 Z. R 105 8. Madison General Insurance Co Limited v Avril Comhill & ,lfichae/ Kakoma SCZNo. 19oj2017 9. Mu.tale v Zambia Consolidated Copper Mines ( 1993-1994) Z. N 94 1.0 INTRODUCTION I. I This appeal is against part of the judgment of Mr. Justice E. Pengele of the High Court. The judgment was delivered on 23,c1 April, 2021 in favour of both respondents. It was to the effect that the 1st respondent's vehicle was damaged beyond repair in a road traffic accident caused by the appellant's negligence. 1.2 The 2nd respondent Frebom Trading Limited was the plaintiff in the lower court. The appellant was ordered to pay both respondents damages for negligence and costs. 2.0 BACKGROUND 2.1 On 6 th April, 20 I 9, the respondent's motor vehicle Toyota Corolla registration number ACX 9641, collided with the appellant's motor vehicle Toyota Rav 4 registration number BAA 5004. It was not in dispute that the accident was caused by the appellant's negligence. Further, that the third party J2 insurance cover which the appellant had with Professional Insurance Company was limited to K27, 000.00 which was paid before the action was instituted. 2.2 The respondent's claims against the appellant in the court below were as follows: (i) Payment of the sum of USO 6,650 less the sum of K27, 000.00 third party insurance payment being the replacement value of the damaged motor vehicle. (ii) Payment of the sum of KS00.00 per day from 12th April, 2019 to the date of passing Judgment being the taxi hire charges. (iii) Damages for negligence and inconvenience caused to the plaintiff. (iv) Damages for loss of use of the motor vehicle. (v) Interest on the sums to be found due to the plaintiff at the current bank of Zambia lending rate; (vi) Costs and any other relief the Court may deem fit. 3.0 LOWER COURT'S JUDGMENT 3.1 Upon holding a trial, the trial Judge considered the evidence before him and found that the 1" respondent bought the Toyota Corolla from the 2"<1 respondent at K40,000.00. That J3 the said vehicle was damaged beyond economical repair as the cost of repairing it would have been either equivalent to, or more than the cost of replacement. Therefore, the only feasible option was to replace the motor vehicle. 3.2 In determining the replacement value of the vehicle, the court considered several authorities including the case of Abraham Mohamed and Alantara Transport v Safeli Chomba in which the Supreme Court guided that: "The general rule as to the normal measure of damages for tort is the value of the chattel at the time of the loss." 3.3 The court found that the respondent's Toyota Corolla, 2001 model was imported into the country in 2014 by the 2 nd respondent who used it for its car hire business for a few years until December 2016 when it was sold to the l st respondent at K40,000.00. 3.4 At the time of trial, the is• respondent owed the 2 nd respondent K104,000.00 in car hire charges plus the purchase price of the vehicle. That is where the 2 1111 respondent's interest lay. 3.5 The lower court took into account the fact that the Toyota Corolla was used for a considerable period of time in Zambia J4 by both respondents and it had therefore depreciated in value. That the quotation for USD 6,650.00 for a Toyota Corolla, 200 l model which was produced by the 1 •1 respondent was for a similar second hand car which had never been used in Zambia. 3.6 In the absence of an assessment report of the motor vehicle in issue, the Judge was of the view that the value of the vehicle could only be compared to the value of a similarly circumstanced Toyota Corolla 2001 model which was imported into Zambia around 2014 and has been used in business for sometime. 3.7 The court found no merit in the claim for USD6,650.00. Therefore both respondents were found to be entitled to the replacement value of the motor vehicle being K40,000.00; the price at which the 1" respondent bought the vehicle from the 2 nd respondent, less K27,000.00 third party insurance already paid to them. This entailed that the appellant owed them the balance of Kl3,000.00. 3.8 The lower court noted that on l 9 1h July, 2019, the appellant had paid into court the sum of KlS,000.00. This meant that the full replacement value for the damaged Toyota Corolla JS was settled by the appellant on i 9:i, . July, 2019. That from the amount. paid into court. a balance of K2,000.00 remained. 3.9 The court p!·oceeded to considei· how much the respondent. was entitled to in terms of transport. costs incurred before 191h July, 2019. The respondent had proth.1ced receipts for taxi hire in an affidavit. in an effort to prove that the !·ate of car hire was K;)00.00 per day fron1 12''' April, 2019 to 31" July. 2019. 3.10 The lower court found the said receipts unreliable because 1.he respondent testified that he hired a taxi from Luanshya where he lived to Lt1 saka on 12th . July, 2019 and that he travelled to Lt1saka once a \\·eek for his business of real estate. However, despite his cluims, none of the receipts he produced showed that he ever hired a taxi 1.0 any place outside the Coppcrbclt Province. 3. i l Another reason for disn1issing the car hire receipts was that the respondent testified that he used to hitch hike at a fee of K20 whenever he did not have a rnotor vehicle and sometimes he used public transport. 3.12 ln light of the foregoing, the lower court found that it was not possible that the respondent hired a taxi on a daily basis. The J6 court was not convinced with the sequence of dates on the receipts as there were no receipts for the period between 6 1h May, 2019 to 5 th June, 2019. 3.13 The lower court further found that it was not in dispute that the respondent used to travel for work from Luanshya to Kitwe since he stays in Luanshya and his office is said to be located in Kit we. Applying the case of Moore v D. E. R Limited with similar facts, where it was held that the plaintiff was entitled to hire a comparable car and not a less expensive one, the lower court held that the respondent was entitled to the cost of hiring a taxi comparable to the Toyota Corolla that was damaged in the accident from 12•11 April, 2019 to 191h July, 2019; 85 days. 3 .14 In the absence of credible evidence as to the quantum of damages for loss of use of the Toyota Corolla, the court considered what would be the reasonable amount on the facts of the case. The court also found that there was no evidence relating to how many days in a week the respondent used to report for work at his company. Therefore, the respondent was awarded transport costs for 6 working days J7 per week, i.e, 5 conventional working days plus a day of the weekend. 3.15 The 1"1 respondent was awarded K200.00 per day for 85 days totaling K 17,000.00, minus the balance of K2,000.00 from the money paid by the appellant into Court as the cost for alternative transport. 3.16 The inconvenience suffered by the l•t respondent was found to have been substantially atoned for by the award of compensation for car hire. Nevertheless, he was awarded only K400.00. 3.17 Interest was granted on the total award and costs were awarded to both respondents. Leave to appeal was also granted. 4.0 THE APPEAL 4.1 The appeal is based on two grounds of appeal as stated in the memorandum of appeal: (ii The learned High Court Judge erred in fact and law when he awarded the plaintiff transport refund in the sum of K200 per day. JS (ii) The learned High Court Judge erred in fact and law when he awarded the plaintiff costs. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 During the hearing of the appeal, the appellant relied on the heads of argument dated l •t July, 2021. 5.2 The two grounds of appeal were argued separately. On ground one, the main contention is that the only reliable evidence adduced by the 1 •t respondent was that he used to hitch hike from Luanshya to Kitwe at K20 per trip. That the Court therefore erred in awarding him transport refund of K200 per day. That the award of K200 per day is baseless and excessive. To fortify this submission, Counsel referred to the case of Patrick Dickson Ngulube vs Rabson Malupenga111 where the Supreme Court referred to the case of Philip Mhongo v Dorothy Ngulube and Others121 and warned against courts making intelligent and inspired guesses on insufficient evidence before them as follows: "Any party claiming a special loss must prove loss and do so with evidence which makes it possible for the Court to determine the value of that loss with a fair amount of certainty". J9 5.3 Counsel submitted further that the respondent failed to substantiate his claim for a refund of K500 per day for transport costs. That the Court below therefore misdirected itself by filling in the gaps for the plaintiff. 5.4 On the 2nd ground of appeal, counsel for the appellant argues that in her defence, the appellant admitted to causing the accident but disputed the claim for US $6 650 as replacement value of the 1st respondent's motor vehicle and KS0O per day as refund of transport charges. 5.5 That the appellant offered to pay Kl 1, 950.00 on top of the insurance payment in the sum of K27 ,000.00 to bring the total payment to K38,950.00 in settlement of the matter. The appellant further offered to pay the respondents the sum of Kl,920.00 for bus fare costs from Luanshya to Kitwe and back for the period of 90 days between 12th April 2019 to 12th July 2019. 5.6 Upon the respondent rejecting the offer, on 19,h July, 2019 the appellant paid into court KlS,000.00 composed of Kll, 950.00 top up on insurance payment and transport refund of K3,050.00. JlO 5.7 Counsel contended that since the respondents had failed to prove their claims for US$6, 650 and K500 per day, they were not entitled to both awards for K200 per day for transport costs and K400 as damages for inconvenience. 5.8 As regards the 2nd ground of appeal, counsel contended that the respondents' case substantially failed and the appellant succeeded in her defence. He further argued that the respondents' success was more apparent than real and therefore they were not entitled to costs. To buttress this submission the case of Edson Mwanza v Chibuluma Chati Farms Limited and 3 Others131 was cited where we re emphasized the trite law that costs are in the discretion of the court which discretion, should be exercised judiciously. That normally costs follow the event but where an appellant's success is more apparent than real, he may not be awarded costs. 5.9 Reference was also made to the Malupenga case' where the Supreme Court held that: "Order 63/3/2 of the Rules of the Supreme Court 1999 Edition states that where a plaintiff is successful on the Jll issue of liability but recovers nominal damages only, the normal order for costs is in the defendant's favour." 5.10 Counsel therefore prayed that the award of costs be reversed and the appeal be upheld on both grounds. 6.0 RESPONDENTS' HEADS OF ARGUMENT 6.1 The respondents relied on the heads of argument dated 4 th August 2021. A summary of the same is as follows: 6.2 That the 1st ground of appeal has no merit because the evidence of the respondent on K20 for hitch hiking only arose in cross examination. That there was indeed evidence on record to the effect that the respondent would sometimes hitch hike when he did not have a car. There is no evidence suggesting that he hitchhiked every day. It is on that basis that the lower Court found that he did not hire a taxi on a daily basis. 6.3 That the award of transport costs was considered by the lower Court to be reasonable and just. The case of JZ Car Hire Limited v Malvin Chala and Scirocco Enterprises Limited14l was cited to confirm that the Court was at liberty to award an intelligent award if any. J12 6.4 That the lower Court's award was supported by the case of Moore v D. E. R Limited151 which the Court cited in the judgment. 6.5 Counsel contended that K200 per day was a nominal award. That following the accident, the respondent could not have fully resorted to 'hitch hiking. We were therefore urged to dismiss the 1st ground of appeal for want of merit. 6.6 To counter the 2nd ground of appeal, the- respondents' Counsel stated that the award of costs to the respondents was made on firm ground. He stated that the lower Court complied with the legal principles on awarding costs as elucidated 1n numerous cases including Kuta Chambers (sued as a firm) v Concillia Sibulo (Suing as Administratrix of the estate of the late Francis Sibulo)l61• 6.7 Counsel further submitted that the Malupenga case 1 which the appellant relied upon is not to the effect that where part of the plaintiffs case fails, costs should be awarded to the . • defendant. He submitted that Order 65 Rule 3(2) of the RSC 1 further clarifies the position by enacting as follows: "There is no unyielding rule that the successful party can always expect to recover costs from someone." J13 6.8 Counsel therefore submitted that courts take into account the circumstances of each case before exercising their discretion to award costs. That the admission by the . appellant that she caused the accident merited the award of costs to the respondent herein. Finally, counsel urged us to dismiss the 2 nd ground of appeal as well, with costs to the respondent. 7 . O ORAL ARGUMENTS 7.1 At the hearing of the appeal, Counsel for the appellant Mr. Tafeni, orally augmented his submissions on the issue of costs in ground 2, stating that the trial court ought to have taken into account the payment made into court in accordance with the holding in the case of General Nursing Council of Zambia v Ing'utu Mbagweta7 that when awarding costs, the court has to look at all the circumstances of the matter. 7.2 In response, Miss Mwambazi, counsel for the respondents submitted that the court below took into account all the reliefs and circumstances.of the matter. 7 .3 In response to our question whether both respondents were entitled to the reliefs sought, Miss Mwambazi stated that only Jl4 the 1st respondent was entitled to redress. That nevertheless, the court was on firm ground to award both respondents costs. 8.0 OUR ANALYSIS AND DECISION 8.1 We have considered the judgment appealed against, the evidence on record and the arguments for and against the appeal. 8.2 We shall deal with the grounds of appeal separately. The first ground of appeal challenges the award of transport refund to both respondents in the sum K200 per day. We begin our analysis, with the point conceded to by counsel for the respondent Miss Mwambazi, that the 2nd respondent was not entitled to the reliefs granted by the lower court. We are of the firm view that counsel rightly conceded to this point because it was only the 1st respondent who claimed for the remedies endorsed on the writ. This was due to the losses he had suffered as a result of the accident. The 2nd respondent was merely an interested party as it was owed money by the 1st respondent for car hire plus the outstanding balance of the purchase price of the said Toyota Corolla which the 1st respondent bought from the company. We accordingly set JlS aside the awards of K13,000.00 being the balance of the replacement value of the Toyota Corolla, K400.00 for inconvenience and KlS,000.00 being the total amount for alternative transport from 12th April, 2019 to 19th July, 2019 in as far as they relate to the 2nd respondent. 8.3 With this in mind, we shall proceed to determine whether the award for alternative transport at the rate of K200.00 per day to the 1st respondent was justified. We take note that the 1st respondent failed to prove his claim for K500 per day as transport refund as the receipts produced before the trial court were found to be unreliable. He also failed to show that he travelled by taxi from Luanshya to Kitwe and back six days a week, and that sometimes he booked a taxi from the Copperbelt to Lusaka for business. Since he had claimed special damages, he had the onus of adducing sufficient evidence to enable the Court determine the value of that loss with a fair amount of certainty; See Mhango v Ngulube and Others12l and the case of J. Z Car Hire Limited v Malvin Chala and Others15l- In the absence of such evidence, a plaintiff would be entitled to nominal damages. J16 8.4 In the J. Z Car Hire case, which involved a claim for loss of business which was not proved, the Supreme Court awarded the appellant a token figure of K250,00O.00 plus costs. Of relevance to the case before us is what the court had to say that: "If left alone, the court is at large and it may award intelligent awards if any." Following the above authority, we uphold the award of K200 per day for alternative transport as it was an intelligent award which was reasonable. Our understanding is that the award was not for a refund but for loss of use of the Toyota Corolla. 8.5 We find it expedient to clarify our position that K200 per day for return trips from Luanshya where the respondent lives to Kitwe where his office is situated translates to only KlOO one way which is nominal. We take judicial notice of the high taxi hire costs in this country. 8.6 We hold that the damages for loss of use of the Toyota Corolla were real. Further, we uphold the lower court's holding that the respondent was entitled to hire a car comparable to the one which was damaged in the accident as this is fortified by the case of Moore v D. E. R Limited5 • Consequently ground 1 fails. J17 8.7 It is clear that a substantial part of the awards granted to the 1st respondent had already been paid partly by the insurance company and partly into Court by the appellant. These facts should have been held in favour of the appellant; See the case of General Nursing Council v Ing'utu Mbangweta supra 8.8 Coming to ground 2, the appellant contends that the lower court erred in awarding costs to both respondents. Mr. Tafeni argued that the court should have taken into account all the circumstances of the case, especially the payment of money into court and efforts to settle the matter ex-curia. 8.9 In our considered view, the lower court did not exercise its discretion to award costs judiciously as it failed to take into account all the circumstances of the case. It is clear that a substantial part of the awards granted to the 1st respondent had already been paid into Court by the appellant. 8.10 Therefore, the costs order made by the lower court is hereby set aside. Instead we order that each party should bear its own costs in the lower Court. J18 • • 9.0 CONCLUSION 9.1 In sum, the reliefs awarded to the 2nd respondent are set aside. The 1st ground fails for lack of merit. However, the appeal succeeds on the 2nd ground. 9.2 Costs here are awarded to both respondents, to be taxed in default of agreement between the parties. > ----.,__ ...,_ .....•........•..................... M. M. KONDOLO, SC COURT OF APPEAL JUDGE C. K. MAKUNG COURT OF APPEAL JUDGE ...........................•..... P. C. M. NGULUBE COURT OF APPEAL JUDGE J19