Harry Sinyangwe (Suing as the duly appointed administrator of the Estate of the Late Elizabeth Sinyangwe) v Landslide Logistics and Ors (APPEAL NO. 23/2019) [2019] ZMCA 435 (25 October 2019)

IN THE COURT OF APPEAL APPEAL NO. 23/2019 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: HARRY SINYANGWE (Suing as the duly appointed administrator of the Estate of the Late Elizabeth Sinyangwe) 1 ST APPELLANT VIN LOGISTICS LIMITED 4TH RESPONDENT CORAM: KONDOLO SC, SICHINGA, SIAVWAPA JJA On 16th October, 2019 and 25th October, 2019 For the Appellant : Mr. A. Mbambara of Messrs. A. Mbambara Legal Practitioners For the 1 ST Respondent For the 2 nd Respondent For the 4 th Respondent : No Appearance : No Appearance : No Appearance JUDGMENT KONDOLO SC, JA delivered the Judgmen t of the Court CASES REFERRED TO: 1. Galaunia Farms Limited v National Milling Company & Another (2004) Z. R. 1. 2. Sondashi v Daily Nation (2014/HP/548) (delivered 27 April, 2015) J2 of 15 3. Griffiths v Arch Engineering Co (Newport) Ltd [1968] 3 ALL ER 4. Shamwana & 7 Others v The People (1985) ZR 41 (S. C.) 5. Baker v Market Harborough Industrial Cooperative Society [1953] 1 W. L. R.1472 6. France v Parkinson [1954] 1 W. L. R 1455 7. Anderson Kambela Mazoka, Lt General Christon Sifapi Tembo, Godfrey Kenneth Miyanda Vs Levy Patrick Mwanawasa, The Electoral Commission of Zambia, The Attorney General (2005) Z. R. 138 (S. C.) 8. Lyons Broke Bond v Zambia Tanzania Road Services ( 1972) Z. R. 9. Gerard McGee (a minor suing by his father and next friend Thomas McGee) v Francis O'Reilly and the North Eastern Health Board. The Supreme Court of Ireland (Judgment delivered 9 July 1996) https: // www .irishtimes.com/ sport/ function-of-pleadings-is-to define-issues-between-parties-not-to-go-into-evidence-1.100265 LEGISLATION REFFERED TO: 1. The High Court Rules, Chapter 27, Laws of Zambia OTHER WORKS REFERRED TO: 1. Digest of Judgements of the Supreme Court of Nigeria Volumes 1 and2 This is an Appeal against the Judgement of the High Court by Si tali J, as she then was, da ted 13 June 2018. The b ackground is that the Plaintiff, now the Appellant, sued as administrator of the Estate of his late wife, Elizabeth Sinyangwe who died when the mini-bus (registration number ABV 2670) in which she was a passenger, was smashed into by a truck (registration number ABH 2391) owned by the 1st Respondent whilst b eing driven by th e 2nd Respondent. The Plaintiff settled a Statem ent of Claim in which h e a lleged n egligen ce, the p articulars of which were that the 2nd Respondent cau sed the accid ent by driving on the wrong side of the road; failing to look out for other road users; failing to exercise due care whilst on the road and over speeding. The Appellant then claimed the following reliefs: J3 of 15 1. Damages for loss of dependency under the Fatal Accidents Act 1864 to 1908; 2 . Damages for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Act CAP 74; 3 . Refund of funeral expenses 4. Interest on all sums found due; and 5. Costs. In the defence filed by the 1st and 2nd Respondents, they admitted that the 2 n d Respondent crashed into the minibus but averred that the accident was caused by the 3 rd Party, who is now cited as the 4th Respondent, whose truck (registration number AAZ 6800) negligently rammed into the 1st Respondent's truck causing them to both lose control. In the process, the 1s t Respondent's truck crashed into the minibus. The 4th Respondent denied that it's vehicle n egligently rammed into the 1st Respondent's truck but that it was in fact the 1st Respondent's truck that rammed into the 4th Respondent's truck and later on hit into the minibus which consequently resulted in the death of Elizabeth Sinyangwe. The 3rd Respondent averred that it had issued the 1st Defendant with a third-party motor vehicle insurance policy and in the event that the 1st and 2nd Respondents were adjudged liable to the Plaintiff, the 3 rd Respondent's liability would b e limited to the sum insured under the said policy. J4 of 15 Only the Appellant and the 3 rd Respondent attended the hearing and the trial Court exercised its power under Order 35 rule 3 of the High Court Rules and decided to proceed with the trial because all parties were aware of the hearing date but were absent without notice. The Appellant testified that his wife died after the mini bus (registration number ABV 2670) she was travelling in was involved in an accident involving the said minibus and two trucks. The truck, which hit into the minibus, was the one owned by the 1st Respondent and driven by the 2nd Respondent. The Plaintiff explained the circumstances of the accident according to the police Report exhibited in the Appellant's bundle of documents. The Appellant called no other witnesses and Counsel for the 3 rd Respondent told the Court that his client would be calling no witnesses. Since the 1st and 2 nd Respondents were not present, the Court closed the trial. After considering the evidence and pleadings, the learned trial Judge stated that, even though the 1st, 2nd and 4 th Respondents were not present during the trial, the Appellant still had to prove his case because of the principle that "he who alleges must prove". She cited various authorities including the case of Galaunia Farms Limited v National Milling Company & Another 111 in which Sakala CJ, stated that "the burden to prove any allegation is alway s on he who alleges". The trial Judge compared the pleadings filed by the Plaintiff and those by 1st and 2 nd Respondents and held that, in view of the fact that they were in direct contradiction as to how the accident occurred; JS of 15 "it was very important for the Plaintiff to have adduced clear evidence to support his assertion that the accident complained of was caused entirely by the 2 nd Defendants driving." The Court observed that the Appellant did not witness the accident hence the need for him to have called an independent eyewitness or the police officer who authored the Road Traffic Accident Report. The learned trial Judge noted that the accident report confirmed that the 4 th Respondent's truck collided with the 1st Respondent's truck after which they both lost control and the 1st Respondent's truck ended up hitting into the mini bus. The Court held that the police Report therefore did not support the Appellant's allegation that the 2 nd Respondent's negligence was entirely to blame for the accident in which the deceased died. On that basis, the trial Judge accepted the averments in the 1st and 2 nd Respondents' defence that the accident occurred after the 4 th Respondent's truck rammed into the 1st Respondent's truck. The trial Court held that the Appellant had failed to prove its case on a balance of probabilities and was thus not entitled to any of the reliefs claimed. The case against the 3 rd Respondent was equally dismissed because it was premised on the Court's findings with regard to the 1st and 2 nd Respondents' liability. The Court further held that the Respondents' failure to appear at trial meant that they did not prosecute their claim against the 4 th Respondent and consequently dismissed the claim against the 4th respondent. Being dissatisfied with the Judgement, the Appellant has appealed and advanced two grounds of appeal as follows; J6 of 15 1. The Court below m isdirecte d itself in law andfact in holding t h at the Plai ntiff/Appellant faile d to prove the claim on a balance of probability when all the relevant evidence w as clearly before Court and was not rebutted by t he 1 st, 2 nd and 3 rd Defendants as well as the 3 rd party . 2 . The Court below misdirected itself in law and in fact when it fa iled to pronounce itself on the liabi lity of the 3 rd Defendant in relation to t he plaintiffs clai m in terms of the provisions of the Roads and Road traffic Act of t he Laws of Za mbia. At the hearing of the Appeal, only Mr. Mbambara, Counsel for the Appellant turned up and despite not appearing, none of the Respondents filed notices of non-attendance. The Appellant relied entirely on the heads of argument filed on 5th February, 2019 and Counsel informed the Court that the claims b etween the Appellant and 3 rd Respondent had been settled by way of Consent Judgement, which meant that all that remained for determination was the first ground of appeal. Under ground one, Counsel for the Appellant cited the case of Sondashi v Daily Nation 12l in which it was held that where the Plaintiff establishes a prima facie case against the Defendant, the burden of proof shifts to the J7 of 15 defendant to establish its defence. He submitted that the appellant had established a prima facie case that the deceased died after the vehicle she wa s in was hit into by the 1st Defendant's truck. It was further submitted that the 1st and 2 n d Respondent and the 4 th Respondent owed the deceased a duty of care and h e cited the case of Griffiths v Arch Engineering Co (Newport) Ltd 131 in which it was held that more than one person can owe a duty of care at the same time. Counsel pointed out that the police report adduced as evidence by the Appellant clearly showed that the 2 nd Respondent was negligent in his driving and that he was charged with causing death by dangerous driving. According to Mr. Mbambara, the 2 nd Respondent was later con victed of the said offence and we were asked to take judicial notice of the conviction which occurred in the High Court at Mazabuka on 14th November, 20 17 . He cited the case of Shamwana & 7 Others v The People 141 in which it was stated that, a Judge has the power to look at the r ecord of another judge and take judicial notice of its contents. It was further submitted that all the ingredients of negligence had been proved because in casu, there was a duty of care, a breach of that duty and the post mortem report showed that serious injury and death resulted from the breach of the duty of care. Mr. Mbambara cited the case of Baker v Market Harborough Industrial Cooperative Society 151 in which it was h eld that where two cars collide and JS of 15 there is insufficient evidence pointing to one driver as being more to blame than the other, the proper inference is that they are both to blame. Counsel noted that none of the Respondents called any evidence to rebut the evidence given by the Appellant and under such circumstances where the Appellant establishes negligence, the Court can allow the Appellant to recover in full against the Respondents. In support of this proposition, he cited the case of France v Parkinson 161 in which two vehicles collided at the center of cross roads of equal status and after the accident, the defendant said to the policeman "I was going along the road and we met in the middle". The Court held that there was a prima facie case that both drivers were negligent and the Plaintiff, who was a passenger, was allowed to recover, in full, from the Defendant because he did not call any evidence. Mr. Mbambara closed his arguments by stating that the Respondents had not adduced any evidence to rebut the Appellant's evidence and the Appellant was thus entitled to recover damages from the Respondents. We have considered the Record of Appeal and the heads of argument filed by the Appellant. As earlier indicated, the 2 nd ground of appeal has fallen away on account of the Consent Judgement entered into by the Appellant and the 3rd Respondent. It is important to note from the outset that the trial Court had very little material to work with to establish liability. The Appellant, who was the only witness, was not an eyewitness to the accident and none of the Respondents called witnesses or otherwise adduced any evidence during the trial. The J9 of 15 author of the Police Report, relied upon by the Appellant, was not called as a witness. The only fact, which was certain, was that the 1st Respondent's truck whilst being driven by the 2 nd Respondent hit into a minibus in which the Appellant's wife was a passenger and thereby caused her death. In its Judgement, at page J20-21, the trial Judge said as follows; "In view of the conflicting positions advanced by the Plaintiff, on one hand, and by the 1st & 2 nd Defendants, on the other, regarding the cause of the accident, it was very important for the plaintiff to have adduced evidence to support his assertion that the accident complained of was caused entirely by the 2 nd Defendants negligent driving ... It was therefore imperative for the plaintiff to have called one or more independent eye witnesses to the accident or any of the police officers, whom he said were at the scene of the accident, and who produced the road traffic accident report he relied on, to testify as to what the police officers, in the course of their investigations, found was the cause of the accident in which the deceased died. The plaintiff did not do this." The learned trial Judge further noted that the Police Accident Report relied upon by the Appellant indicated that the 4 th Respondent's truck hit into the 2 nd Respondent's truck which then lost control and hit into the mini bus. JlO of 15 On that basis, the trial Court ascribed very little credence to the Appellant's testimony and found that he h a d not proved his case. We have looked at th e Accident Report and in p articular, the p art of it that the Appellant referr ed to in his testimony at page 196 of the Record of Appeal. The relevant p age of the accident report is at page 165 of the record of app eal and states as follows; "M/V Reg No. AAZ 6800 - ASS 7851 T collided wit h M/V Reg No. ABH 2391 -AAZ 9361T which was coming from the opposite direction hence both trucks lost control and truck No. ABH 2391 went to h it into M/V ABV 2670 on the opposite lane and truck No. AAZ 6800 - ASS 7851 T went to hit i nto truck No. ABP1077-ABA1770T-ABA 1764T also on the opposite lane ... "The case was reported , scene visited and one driver M/Emmanuel Sakala was charged with causi ng death by dangerous driving ...... We can summarize the p olice Report is as follows; 1. The 4 th Respondent's truck (AAZ 6800) collided with the 1st Respondent's truck driven by the 2 nd Respondent (ABH 2 391) and both trucks lost control. 2. After losing control, the 1st Respondent's truck hit into the minibus which was corning in the opposite lane and in which the deceased was a p assen ger. • Jll of 15 3. The 4 th Respondent's truck, which had also lost con trol, went and hit into another truck ABP 1077. 4. The 2 nd Respondent wh o was driving the 1st Respondent's truck (ABH 2391) was charged with causing death by dangerous driving. Our u nderstanding of the police Accid ent Report is that it does not state which of the two trucks, between the 4 th Respondent and the 1st Respondent's trucks, was driven negligently. It simply states that they collided. Secondly, on the basis of whatever occurred, the police decided to charge the 2 nd Respondent with t h e offence of cau sing death by dangerous driving. Th e Record shows that non e of the Respondents atten ded the trial and thus addu ced no evidence. The trial Court relied on the defence filed by the 1st and 2 nd Defen dant in which they denied that the 2nd Respondent was n egligent and averred that it was in fact th e 3rd Party who negligently crashed into the 1s t Respondent's truck causing th e 2nd Respondent to lose control and crash into the minibus, resulting in the deceased's death. The trial Cou rt tr eated the aver men ts in the defence as though they were evidence when all they were, were p leadings. We refer to the Digest of Judgements of the Supreme Court of Nigeria, which describes p leadings as follows: "In civil matters the fate of every case depends on the pleadings and the evidence in support. A matter that is pleaded but not traversed remains a fact against the other side. Thus, where the Plaintiff pleads negligence and is not Jl2 of 15 specifically traversed and the Plaintiff goes on to prove the averment by evidence in court and the defendant offers no evidence whatsoever, that pleading remains uncontradicted and must be held against the Defendant." (emphasis ours) Th e Supreme Court has, in a plethora of cases, stamped its approval to the cited description of p leadings. In Lyons Broke Bond v Zambia Tanzania Road Services 171 it stated that the function of pleadings is to assist the Court by defining the b ounds of the action, wh ich cannot be exten ded without the leave of the cour t and without amen dment of the pleadings. In Anderson Kambela Mazoka, Lt General Christon Sifapi Tembo, Godfrey Kenneth Miyanda v Levy Patrick Mwanawasa, The Electoral Commission of Zambia, The Attorney General 181 the Supreme Court stated that: "Thefunction of pleadings, is to give/air notice ofthe case which has to be met and to de.fine the issues on which the Court will have to adjudicate in order to determine the matters in dispute between the parties. Once the pleadings have been closed, the parties are bound by their pleadings and the Court has to take them as such. " These au thorities show that pleadings cannot be considered or treated as evidence in a su it becau se their function is to ensure that par ties anticipate • the eviden ce that will be b rou gh t befor e Court to p rove th e issues raised and it is for this reason that p arties are bound by their p leadings. J13 of 15 Th e n atur e of p leadings and evidence was qu ite clearly summed up by the Irish Supreme Cour t in the case of Gerard McGee (a minor suing by his father and next friend Thomas McGee) (plaintiff) v Francis O'Reilly and the North Eastern Health Board (defendants) 191 in which the followin g was said ; "The whole purpose of a pleading, be it a statement of claim, defence or reply, is to define the issues between the parties, to confine the evidence of the trial to the matters relevant to those issues, and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters notfairly to be ascertainedfrom the pleadings. In other words, a party should know in advance, in broad outline, the case he will have to meet at the trial. In our system of civil litigation, the case is ultimately decided having regard to the oral evidence adduced at the trial. The machinery of pleadings and particulars, while of critical importance in ensuring that the parties know the ease that is being advanced against them and that matters extraneous to the issues as thus defined will not be introduced at the trial, is not a substitute for the oral evidence of witnesses and their cross examination before the trial judge. " The cited procedure is reflective of the Zambian l al t . eg sys em and 1n casu, JI4 o f 15 the only party that adduced evidence was the Appellant, who stated that the 1st Respondent's truck hit into the mini bus in which his wife was a passenger and she died on the spot as consequence of the accident. The Appellant had clearly established a prima fade case and the Respondents had the onus to challenge his evidence, which they did not do. The 1st and 2 nd Respondents did not deny that the 1st Respondent's truck hit into the minibus which was coming in the opposite lane but blamed it on the alleged negligent driving by the 4 th Respondent. The trial Judge correctly dismissed the claim against the 4 th Respondent because the 1st and 2nd Respondents failed to attend Court and prosecute the claim. Counsel for the Appellant informed the court that arising from this accident, the 2nd Defendant was convicted by the high Court for causing death by dangerous driving. He invited us to call for the record and take judicial notice of its contents. We see no need to address that particular argument, because the decision we have arrived at renders the request and our reaction to it, otiose. In the premises, the Appellant did in fact prove his case against the 1st and 2nd Respondents on account of their failure to challenge his Court room idence that the 2 nd Respondent caused the death of his wife when he ;gently crashed his truck into the minibus in which she was travelling. ,µeal consequently succeeds and the Appellant is granted the reliefs as 1amely; ,, " J15 of 15 1. Damages for loss of dependency under the Fatal Accidents Act 1864 to 1908; Damages for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Act CAP 74 and refund of funeral expenses, the quantum of which shall be assessed by the Deputy Registrar. 2. The awarded sums shall attract interest at the average short term bank deposit rate from date of writ to date of Judgment and thereafter until date of payment, at the current bank lending rate as determined by Bank of Zambia. 3. Costs are awarded to the Appellant both in this Court and the Court below. -------- ----~ ·-······ ~ M. M. KONDOLO SC COURT OF APPEAL JUDGE .................. i ............... . M. J. SIAVWAPA COURT OF APPEAL JUDGE