Chipale v Kabwe Municiple Council (SCZ Appeal 20 of 1999) [1999] ZMSC 96 (24 November 1999)

IN THE SUPREME COURT OE ZAMBIA SCZ APPEAL NO. 20/99 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: HENRY Cn i PALE AND I APPELLANT KABWE MUNICIPAL COUNCIL RESPONDENT CORAM: Sakala, Chirwa and Muzyamba JJs at Kabwe on 21st April 1999 and 24th November 1999 For the Appellant: in Person For the Respondent: Not present JUDGMENT Chirwa, J. S. delivered the judgment of the Conrt:- This is an appeal by the appellant, HENRY CHIP ALE, (hereinafter referred to as the appellant) against the decision of the High Court District Registrar refusing to award the appellant damages for loss of business; and damages for libel contained in a letter dated 9th May 1996 written by the respondent, KABWE MUNICIPAL COUNCIL, (hereinafter referred to as the respondent) to Zambia Railways Ltd. The appellant, in total claimed K 120,000,000.00 (one hundred and twenty million kwacha). I - J2 - We should put on record that the record of appeal in this case was not prepared in accordance with the rules of this Court but after looking at the history and circumstances of the case, we allowed the matter to proceed notwithstanding the irregularities. This should not be taken by litigants that the rules of the Court can be disregarded in the preparation of appeal records. Briefly, the appellant issued a writ of summons against the respondent. The claim endorsed on the writ reads:- “The plaintiff’s claim is for: (1) Damages for libel contained in a letter dated 9th May 1996, wherein the defendants wrote and published of the plaintiff as shown in document attached hereto (2) Damages for loss of business and earnings embarassement caused and inconveniences suffered arising out of loss of business instigated by the defendants, costs incidental hereto and costs. (3) In view of the above the defendants must pay me KI20,000,000.00 (one hundred and twenty million kwacha) as compensation.” The letter by the respondent that gave rise to the claim dated 9th May 1996 to Zambia Railways Ltd. reads as follows:- I - J3 - “The Company Secretary Zambia Railways Ltd. P. O. Box 80935 KABWE Dear Sir, SUB-LEASE OF RAILWAY RESERVE FOR COMMERCIAL | VENTURES NEAR TOWN CENTRE MARKET 1 would like io draw your attention to the above subject matter and wish to remind you that Kabwe Municipal Council is the planning authotiry where all planning permission must be approved. It has come to my attention that you have illegally sub-leased a stretch of land winco v\c icaaeu io you on long term as Railway Reserve io a Mr. Chipale for Commercial Ventures. This man in turn has encouraged people to build shuckles as restaurants and he is illegally levying them K500.00 per day and some KI5,000.00 per month. This is illegal. On behalf of the Council 1 request you to urgently cancel your offer to this man and there on remove the shuckles he has encouraged people to build on this land at your own expense Failure to comply to this letter within 21 days will result in legal action taken against your company. Yours faithfully, KABWE MUNICIPAL COUNCIL “ - J4 - As we said earlier on, the record is poorly prepared, however it is discerned fron|the learned District Registrar’s ruling on assessement that the appellant obtained judgment against the respondent in default of appearance and the matter then came before the District Registrar for assesstment. At assesssment the appellant gave evidence and called one witness. On behalf of the respondent one witness ga\Je evidence In his ruling the District Registrar found that the letter by the respondent to Zambia Railways was written to them as landlords and copies to whom it was sent were persons who ought to have recieved them by virtue of their employment with the respondent. He found that there was no real injury done io the reputation of the appellant; he therefore awarded the appellant nominal damages of only K3U,u00.00 (thirty thousand kwacha). He went to state that the letter alleged that the appellant had encouraged people to build “shuckles as restaurants” and that he was illegally levying them K5UU.00 (five hundred kwacha) per day and that some KI 5,000.00 (fifteen thousand kwacha) per month. He found this allegation capable of causing injury to one’s feelings and when not justified ought to attract a substantial amount of general damages and he awarded the appellant KI00,000.00 (one hundred thousand kwacha). On the claim of loss of business and earnings, the District Registrar found that the appellant never used io keep proper records and that the receipts produced were isolated and were no proof that indeed there was a business of maize being carried on. He therefore declined to award the appellant any award on this claim. The appellant has appealed against the whole of this judgment of the District Registrar. The notice of appeal and the grounds of appeal attached to it states that the District Registrar erred when he minimized the damage to libelous letter caused to the appellant; that the District Registrar erred in finding that there was no maize business as the appellant failed to produce any books and bank siaiemems; furilier he erred in finding that the appellant never suffered any mental - J5 - anquish to merit damages and that his conclusions were against the judgment already ob|tined on 26th February, 1997 and it was a misdirection not to award costs to the appellant. We have considered the evidence on assessment, judgment of the District Registrar and the appellants written submissions on both in the Court below and those filed in prosecuting the appeal. It is law that he who alleges must prove and this has been the law and this Court said so in the case ofZULU V aVONDAlE HOUSING PROJECT [1982] Z. R, 172 and in the case ofMHANGO V DOROTHY NGULUBE & OTHERS ] 1983] Z. R. 61 and it is not for the defendant to prove his case. In the present case, there was judgment in default of appearance. The writ issued by the appellant is a general endorsement writ and the endorsement of the same has already been quoted in this judgment. The claim as can be seen is for damages for libel and loss of bussiness and earnings. According to the endorsement on the writ the appellant gave a sum of K 120,000,000 (one hundred and t wenty million kwacha) as total sum of compensation embracing both |ibel and loss of business claims By doing this the appellant ‘’pleaded” special damages had to be specifically proved seriatum by evidence. In the present case the appellant never adduced evidence to prove the special damages. He generally averred that at one time he was banking with Finance Bank and thereafter he was keeping his millions of kwacha in the house. The appellant also somehow put on record is projected cash How and profits but these were never brought out during assessment of damages and the respondent had not been given chance to cross-examine the appellant on this On the totality of the evidence on assessment, we cannot fault the Iwn.w nG appiifcm finding that special damages had not been proved and he remained to consider general damages. We agree, the KI20,000,000.00 (one hundred and twenty million kwacha; claimed was not proved. On the question of general damages, the appellant still bore the burden of proof that he suffered some damages us a result of the respondent”s action or inaction. In the present case there was judgment entered in favoui of the appellant in default of appearance and whenjhe case came up on assessment of damages, it wtts for the appellant to prove that damage. - J7 - fact that we are an appellee Court and as we have said before, we can only reverse the findings of fact made by a trial Court when satisfied dial the findings in question are either pervese or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they are findings which, on proper view of the evidence, a trial Court acting correctly could not reasonably make. In the present case, right from the writ, it is not stated what was defamatory in the letter complained of. The appellant himself in his evidence on assessment does not say what was defamatory and what damave he sulfered more especially in the face of his own evidence that shows that the respondent's claims of the conduct of the appellant were found to be true by Zambia Railways. This Court cannot turn a blind eye to the lacuna in proof of libel even if there was judgment default of appearance; the appellant had to fulfill his obligation of proving his case. There is no burden on Hie respondent The awards for libel of K30,000.00 (thirty thousand kwacha) nominal and RluuuUU 00 tone hundred thousand kwacha) for the alleged injury to the appellant’s feelings, were plucked fium the air under circumstances where there was no liability. We would therefore set them aside. If these have been paid, they should be refunded tqjlhe respondent with imeiest from date of payment to today at current lending rate as advised by the Bank of Zambia. We now deal with the claim lor loss of business and earnings. Earlier in this judgment we did deal with the specific sum of K 120,000,000 00 (one hundred and twenty million kwacha) claimed by the appellant as a total stun lor libel and loss of bussiness and earnings. We said there was no proof of loss of this sum on assessment. We repeal this statement. We add specifically in relation to the claim ui toss ot business ami earnings that the appellant adduced no acceptable evidence to support his claim undei this head I he appellants assertations were based on projected income and profit which pi ejections found themselves on record but were not adduced during assessment before uie District Registrar. We cannot, therefore, fault the District Registrar’s refusal to u\oird me appellant an) damages lor loss of business. The appeal against the refusal by the District Registrar to award damages on this head is also dismissed. The substantive appeal therefore fails. - J8 - The appellant also, in his appeal, complained against the failure to award him cot|s for all his appearances in the High Court up to and including an assessment and fulling on assessment. We agree with the appellant that it is a general rule that a successful party ought to have costs in the action unless there is a good reason for denying him the costs. From the record, no reason is given why costs were denied to the appellant. Even if he appeared in person, there ought to have been expenses incurred in prosecminv his case in the High Court and having succeeded there he ought to have been awarded costs A'e allow this ground of appeal. We award the appellant costs in the Court below, to be agreed, in default to be taxed. As for the costs in this Court, we make no order as to costs. E. L. SaKAla a, rKL’Mii Cut RI'JUDGE D. K. CH1RWA SUPREME COURT JUDGE W. M. MUZ YAM BA SUPREME COURT JUDGE