John Chibobola Kapotwe v Meridian Biao Bank Ltd (In Liquidation) (Appeal 71 of 2002) [2003] ZMSC 137 (17 December 2003)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 71 OF 2002 (CIVIL JURISDICTION) BETWEEN: JOHN CHIBOBOLA KAPOTWE APPELLANT AND MERIDIEN BIAO BANK LIMITED (IN LIQUIDATION) RESPONDENT Coram: Lewanika, DCJ, Chirwa and Chibesakunda JJs on 22nd October, 2002 and 17th December, 2003 For the Appellant: Mr N Okwere, Messrs Okwere Associates For the Respondent: N/P Phoenix Partners JUDGMENT Chirwa, JS, delivered judgement of the Court:- Cases referred to: 1. 2. Mohamed and Alan Taro Transport Limited v Sasel Chumbu 11993-941 Z. R. 4 Mhango v Ngulube 11983] Z. R. 61 This is an appeal from the Deputy Registrar on assessment of damages in which the learned Deputy Registrar awarded the appellant £1,000.00 as damages for the value of goods lost whilst in custody of the respondent. The assessment was done on affidavit evidence. In the affidavit evidence, the appellant put in estimate value of the goods lost and also, attached pro-forma invoices indicating the current prices at the time of assessment. For the respondent, there was also affidavit indicating the goods seized from the appellant. At assessment, the J2 Deputy Registrar found that after comparing all records of the seized goods, only eight (8) items were not accounted and it is on these items that the appellant gave an estimated value and also quotations for the current price. In assessing the measure of damages, the learned Deputy Registrar correctly followed the law that the value of the goods is the value at the time of the loss as we stated in the case of MOHAMED AND ALAN TARO TRANSPORT LIMITED v SAFEL CHUMBU (1) and that proof of any special loss lay on the party claiming to prove such a loss and failure to do so, the party risks leaving the Court to make an intelligent guess as stated in MHANGO v NGULUBE (2). After considering the affidavit evidence and the law, the learned District Registrar held the view that the appellant and led sufficient evidence to assist the Court to reach at a meaningful assessment and although he would have awarded a token sum he gave, what he thought was reasonable and this is £1,000.00. It is against this award that the appellant has appealed. At the hearing of the appeal, there was no appearance from the respondent and no reason was given for the absence of Counsel and we proceeded to hear the appeal in terms of Rule 71(1) (b) of the Supreme Court Rules. Mr Okware then indicated that he would not make any oral submission but rely on his written heads of arguments. There is one ground of appeal, namely, that the learned Deputy Registrar misdirected himself in fact and in law when he ruled that the J3 appellant’s goods which went missing whilst in the respondent’s custody were £1,000.00 in value. It is argued in the written heads of arguments that the appellant gave the estimate value of the goods at the time of the loss and to show that he gave a reasonable estimate, he gave the current price of the goods. The prices or value were different and that if the learned Deputy Registrar correctly interpreted the MHANGO case, he would have found that the appellant gave sufficient evidence on which the Deputy Registrar could determine the value of the loss with a fair amount of certainty. It was shown in the argument that the essence of the quotation was to show that the appellant was not claiming the current value of the lost goods. We have considered this one ground and we agree that the appellant gave some material on which the learned Deputy Registrar could assess the loss. But the appellant’s evidence lacked one thing, namely the date of purchase of the goods. However, even if this information is missing the evidence clearly showed that the award of £1,000.00 is unrealistic. All the same, this lack of age of the items will go against the appellant in our attempt to do our intelligent guess on the value of the goods as the same of the loss. We therefore set aside the global award of £1,000.00. On this basis, we award the following: 1 Persian Carpet £1,500.00; 1 Persian rug £700.00; 2 easy brown chairs £200.00; 2 Swedish easy chairs £150.00; 1 office desk £700.00; 2 bedside lumps £50.00; 1 upright lounge lampshade £100.00 and 2 cushions £25.00. The total ward is therefore £4,225.00. J4 The appeal is therefore allowed in that effect. Costs to the appellant. DEPUTY CHIEF JUSTICE D K Chirwa JUDGE OF THE SUPREME COURT L P Chibesakunda JUDGE OF THE SUPREME COURT