Shaba v Mushauko and Anor (Appeal 67 of 2004) [2005] ZMSC 31 (29 November 2005)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 67/2004 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: GLORY KUMWENDA SHABA Appellant AND ROIDA MWAPE MUSHAUKO 1^ Respondent COMMISSIONER OF LANDS 2nd Respondent Coram: Chirwa, Chitengi and Silomba, JJS on 3rd August, 2004 and 29th November, 2005. For the Appellant : Mr. V. Malambo SC of Messrs Malambo 8s Co. For the Respondent: Mr. M. Kapumpa of Messrs Mumba S. Kapumba Advocates JUDGMENT ~ Chitengi, JS, delivered the judgment of the court. This is one of the numerous cases in which we have repeatedly said that the Lands Tribunal should critically look at its jurisdiction before entering upon any complaint brought before it. In this case there was alleged double allocation of some parcel of land by the Commissioner of Lands. One of the parties J2 contending for ownership of the parcel of land was issued with a certificate of title. The Lands Tribunal heard the complainant and made certain declarations and recommended to the Commissioner of Lands that the lease and certificate of title issued to one of the parties be cancelled. Clearly, the Lands Tribunal has no jurisdiction to make such an order or recommendation. Indeed, the Lands Tribunal could not cite the provisions in the Law under which they could make such a recommendation. The court with power under the Lands and Deeds Registry Act to order (not recommend) cancellation of certificates of title, rectification of entries in the Register, removal or reinstatement of caveats etc is the High Court; vide definition of “court” in Section 2 of the Lands and Deeds Registry Act. For the guidance of the Lands Tribunal, it should decline jurisdiction in every case where there is a certificate of title issued to one of the contending parties. The Lands Tribunal should also look critically at its jurisdiction as provided for in Section 22 of the Lands Act Cap 184 of the Laws of Zambia. We are happy that both counsel for the Appellant and Respondent conceded that the Lands Tribunal has no jurisdiction to hear and determine this matter. Accordingly, we allow this appeal and the glorified party can commence his action afresh in the proper forum. J3 Having regard to the circumstances of this case, we make no order as to costs. D. K. CHIRWA SUPREME COURT JUDGE SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE IN THE SUPREME COURT OF ZAMBIA SCZ/8/205/2003 HOLDEN AT NDOLA APPEAL NO, 155 OF 2003 (Civil Jurisdiction) BETWEEN: GEORGINA MUTALE (T/A G. M. Manufacturers) AND APPELLANT ZAMBIA NATIONAL BUILDING SOCIETY RESPONDENT CORAM: LEW ANIKA, DCJ, SILOMBA, JS AND MUNTHALI, AG. JS On the 7th September, 2005 and 27th October, 2005 For the Appellant: Dr. John Mubanga Mulwila of Messrs Ituna Partners. For the Respondent: Mr. Chrisy M. Besa, Legal Counsel of Zambia National Building Society JUDGMENT LEW ANIKA, DCJ, delivered the judgment of the Court. Cases Referred to:- 1. 2. 3. 4. 5. 6. Development Bank of Zambia -Vs- Mangolo Farms Limited (1995/1997) ZR. 65. Herbert Ejegalu Okwo Ozokwo -Vs- The Attorney-General (No. 2) (1985) ZR 218. Times Newspaper (Z) Limited -Vs- Lee Chisulo (1984) ZR. 83. Hastings O’brian Gondwe -Vs- BP Zambia Limited Appeal No. 53 of 2001. The Attorney-General -Vs- Lazarous Mwansa SCZ Appeal No. 105 of 1995. Josephat Hamaundu and Indeco Milling Limited -Vs- Geoffrey Webster Bowen SCZ Appeal No. 84 of 1995. 7. The Attorney-General -Vs- Humphrey Mapona SCZ Appeal No. 54 of 1996. J2 8. Abraham Mohamed and Atlantra Transport Limited -Vs- Safeli Chumbu (1993-1994) ZR. 9. Bank of Zambia -Vs- Anderson and Another (1993-1994) ZR 47. 10. Eric Bernard Schoeman -Vs- The Attorney-General SCZ Appeal No. 70 of 1995. This is an appeal against the assessment of damages by the District Registrar whereby he ordered that the Appellant be paid K70,000,000=00 as damages for the wrongful seizure of the Appellant’s goods by the Respondent with interest calculated at the short-term deposit rate from the date of writ of summons to date of judgment and thereafter at 6% up to the date of payment. The facts of the case are not in dispute and were common cause. The brief facts are that the appellant incorporated a company, G. M. Manufacturers Limited under which she used to run a factory that manufactured uniforms, dust coasts, safari suits and other items. The Appellant had no building of her own and therefore entered into a tenancy agreement with the Respondent as Georgina Mutale (T/A G. M. Manufacturers). This was a protected tenancy under the Landlord and Tenant (Business Premises) Act. The Appellant fell into arrears of rent and as a consequence and without any court order, the Respondent locked up the premises with all machinery and materials inside. These rent arrears were eventually settled. The Appellant brought an action in the High Court for the goods that got lost and damaged through the negligence of the Respondent and as a result of the unlawful seizure of her goods by the Respondent. The Appellant succeeded in her action and was awarded KI5,000,000=00 as damages by the High Court. The appellant was dissatisfied with the award and appealed to this court. On appeal, this court referred the question of quantum to the Deputy Registrar. J3 The Deputy Registrar assessed the damages based on the Appellant’s estimated value of goods that were damaged or lost through the wrongful and unlawful seizure. According to the Appellant’s affidavit evidence the value of the seized goods was K72,231,000=00 which calculation was based on the prices of the uniforms, uniform materials, machinery, stationery and other factory equipment ruling at the time of the seizure. However, the Appellant later on claimed for damages in sum of K143,523,000.00 being an estimation of the value of goods based on the current ruling prices provided by the Appellant’s hired loss adjusters. The issue in contention was and still is what measure should be applied in determining the award that must be granted to the Appellant. The Appellant has brought out three grounds of appeal as stated here below: - Ground One That the award of K70,000,000=00 by the learned District Registrar was so inordinately low as to be an unreasonable and an erroneous estimate of the damages for the wrongful seizure of the Appellant’s goods. Ground Two That the learned District Registrar erred when he refused to rely on exhibits “GCM 1” and “GCM 2”. Ground Three That the learned Deputy Registrar erred in law by awarding the appellant 6% interest from the date of judgment up to the date of payment instead of the average bank lending rate. Counsel for the Appellant argued both ground one and two as one ground. We are alive to the law that governs the award of damages in instances of this nature. For the sake of clarity, this court has always been guided by the decision in the case of Ozokwo - J4 14- The Attorney-General (2) in which we held that awards to the plaintiff must be realistic and should afford a fair recompense. The case of Eric Bernard Schoeman -Vs- The Attorney-General SCZ Appeal No. 70 of 1995 (10) provides a very useful guide as to what price or cost ought to be taken into account in arriving at the value price of goods that were damaged or lost. The case is clear - it is the cost of the goods at the time of the loss or damage and not the current price. Therefore ground one of the appeal is not sustained As for ground three, we would like to agree with Dr. Mulwila that the case of Hastings O’hrian Gondwe - Vs- BP Zambia Limited Appeal No. 53 of 2001 (4) decided by this court sets good guidelines on the interest to be awarded to a successful litigant. The interest rate due to the Appellant, as in this case, should be the average short - term deposit from the date of the writ up to the date of the High Court judgment and thereafter at the average lending rate as determined by the Bank of Zambia from the date of judgment up to the date of payment. This ground of appeal, therefore, succeeds. On the whole the appeal partly succeeds and partly fails. We, therefore, set aside the judgment of the District Registrar and substitute it with the following decisions:- (i) (ii) that the Appellant be awarded K72,231,000=00 damages for loss of goods calculated on the value of the goods at the time of the seizure; that the Appellant be awarded interest at the average short - term deposit from the date of the writ up to the date of the judgment and thereafter at the average lending rate as determined by the Bank of Zambia from the date of judgment up to the date of payment; and J 5 (iii) As the appeal has only succeeded in part, we make no order as to costs D. M. Lewanika, DEPUTY CHIEF JUSTICE. S. S. Silomba, SUPREME COURT JUDGE. S. S. K, Munthali, ACTING SUPREME COURT JUDGE.