Jones Siasamba v ZESCO Ltd (Appeal 30 of 2003) [2003] ZMSC 169 (25 July 2003)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 30/2003 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JONES SIASAMBA APPELLANT AND ZESCO LIMITED RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Chitengi, JJS on 8th April 2003 and 25th July 2003 For the Appellants: For the Respondent: Mr B Katuta of Lai-Lor Chambers Mrs M W Vukovic, Legal Counsel Chibesakunda, JS, delivered the Judgment of the Court JUDGMENT Legislation referred to: 1. The Zambia Electricity Act, Cap 433, Section 9. Cases referred to: 2. 3. 4. 5. 6. Sichula vs Catherine Chewe Selected Judgment No. 8/2000 Victor Namakando Zaza and Zambia Electricity Supply Corporation Limited SCZ Judgment No 18/2001 (unreported) Nkhata and 4 Others vs the Attorney General Z. LR 1966 P.124 Rylands vs Fretchers 1861-73 IAER Pl Wilson Zulu vs Avondale Housing Project [1982] ZLR 172 In this appeal the Appellant, who was the Plaintiff in the claim before the High Court, had two claims: 1. Damages on account of breach of contract by Zambia Electricity Supply Corporation Limited (ZESCO), the Defendants in the High Court, who are now the Respondents before us. In conjunction with this claim the Appellant had also a subsidiary claim for damages for breach of statutory duty under Section 9 of the Electricity Act, Cap 433 of the Laws of Zambia. J2 2. Damages resulting from the Respondents’ disconnection of electricity to his premises on account No. 206929, an account on which there were no arrears. The High Court decided in favour of the Respondents. The Appellant is now challenging that decision. The evidence before the High Court on the first claim is that the Respondents on 12th August 1996 supplied inadequate voltage of electricity to the Appellant’s premises, Plot No. 7280/m Makeni, Lusaka, resulting in the Appellant’s Franklin submersible water pump being completely damaged. The Appellant’s position, which was disputed by the Respondents, was that such supply of low voltage was caused by the Respondents’ inaction or action. The subsidiary argument to this argument by the Appellant is that the Respondents were in breach of Section 9 of the Zambia Electricity Act by failing to supply adequate power to the premises of the Appellant. The Appellant maintained in court that the Respondents should have explained to the court why there was a low voltage to justify their claim that this was an act of God. It was argued that in the absence of such evidence from the Respondent the court should not accept their defence that the supply of low voltage was an act of God. According to them this stand by them is fortified by the evidence, which was before the court that on 12th August 1996 the day was clear. There was no wind, no rains, no storms, etc. Their case is that the low voltage was man made. The Appellant referred to the case of Sichula vs Catherine Chewe (2) where this court held that, “a man made situation cannot be an act of God”, and urged this court to find in favour of the Appellant. The Appellant also referred to the case of Victor Namakando Zaza vs Zambia Electricity Supply Corporation Limited (3) and argued that this case was different from the Zaza vs ZESCO. The graveman of this argument is that the onus probandi of establishing the peculiar circumstances shifted to the Respondents to establish that a branch or snake or lightening caused the short-circuiting of the mains, - J3 - as this evidence was within the peculiar knowledge of the Respondents. The location of the cut jump was within the peculiar knowledge of the Respondent. Failure to do that should have resulted in the court accepting the evidence for the Appellant. The Respondents’ explanation of this low voltage was that this low voltage was caused by reasons beyond all human control, in that this was caused by natural failure of the equipment - Act of God. The Respondents, applying the rationale in the Zaza vs ZESCO case in which this court held in favour of the Defendants; the Respondents argued that the fault, which occurred was as a result of the cut high tension, which resulted in low voltage in the whole area. The Respondents referred the court to a technical report which explained the low voltage as follows:- “Memorandum To: Divisional Manager - Lusaka From: Regions Manager - Central REF: Memo/06/98 Date: 4th June 1998 RE: CLAIM FOR A BURNT FRANKLIN SUBMERSIBLE MOTOR, PLOT 7280/M - MAKENI From our investigations carried out, there was a fault on 12th August 1996, which also affected other customers. The facts are that on the mentioned date, an HT Jumper on red phase got cut at D342 on Zamplast overhead line. This resulted into low voltage in the area. Normal supply was restored at 17.36 hours. Details of the motor: SR No. 334681918M 460/380V J4 - 3 Phase 7.5KW 2875 RPM Model 062728000” The court below applying a ratio decindi in the Zaza vs ZESCO case dismissed the Appellant’s first claim. On the second claim which was a claim for damages for the Respondents’ disconnection of electricity on an account which had no arrears, the Appellant’s case was that on 28th May 1998 the Respondents wrongfully and again in breach of statutory duty under Section 9 of the Electricity Act disconnected the supply to the Appellant’s premises, namely Plot No. 7280/m Makeni, Lusaka bearing account No. 206929 (which account in credit). They cited Section 9 of the Electricity Act and argued that Plot No. 7280/m Makeni was not in arrears. The Appellant had two accounts. Plot number 7280/m Makeni had account No. 206929. The first account was No. 183398 on Plot 17/396a Makeni. The Appellant had shifted from account 183398, which was in arrears to plot 7280/m Makeni on account 206929. It was also common ground that the Appellant had not filled in cessation form indicating that he had moved from account 183398 to account 206929. He left outstanding bills on account 183398. The disconnection was done on account 206929 where he had no arrears. Also account 183398 still bore the name of the Appellant. The Appellant’s arguments before the High Court was that the contractual obligations remained with account 183398 and that account 206929 was not part to their other contractual obligations. It was also argued for the Appellant that by disconnecting on a dead account that act amounted to a breach of statutory duty under Section 9 of the Electricity Act. On the second claim of wrongful disconnection of electricity supply to Plot No. 7280/M Makeni bearing Zambia Electricity Account No. 20629 (which account J5 - was not credited) the Respondents’ response was that this disconnection was lawful as the Appellant never filled a cessation form. The Appellant did not communicate to the Respondents about his movement to Plot No. 7280/M Makeni and that the contractual obligation on account No. 183398 still remained with the Appellant wherever he was. The court held that the contractual obligation followed him personally wherever he was and that the Appellant had a legal obligation to pay the outstanding bill. So the disconnection was lawful. Now before us Mr Katuta, learned counsel for the Appellant, first took issue with the inclusion of documents from pages 12 - 17 in the record of appeal which documents he argued were never before the lower court. They were never pleaded. They were never produced in the court below. He prayed for them to be expunged from record. He went on to argue that he was praying for these documents to be expunged because there was the question of the authenticity of the documents in question. They were suspect documents. He pointed out to us the reasons for suspecting the authenticity of these documents. He submitted that at pages 12 - 17 was the Government Gazette Notice No. 3605 dated 1999. But looking at the actual documents the preamble to these bylaws says, “the bylaws for the 2000.” So he prayed for the expunging of these documents. Mrs. Vukovic in response objected to this preliminary point and argued that bylaws and laws can not be challenged on the grounds that were not pleaded neither were they produced in court as bylaws and laws are published in Government Gazettes for public information. So members of the public ought to know these laws and bylaws and as such the court is expected to take judicial notice of these laws and bylaws. She went to argue that the court below did not even rely on these documents in reaching the conclusion which it did. In dealing with this argument we note that the Respondents are not disputing that these documents were not produced. J6 - These documents were never produced in court below, neither were these bylaws pleaded in the pleadings in the court below. Although in principle we agree with Mrs. Vukovic that under Order 18, Rule 12 of the Rules of the Supreme Court, 1999 White Book principles of law are generally not pleaded, but looking at the arguments of Mr. Katuta we agree with him that since these documents were not before the court below they have to be expunged although this court can take judicial notice of the principles of law in them. We are fortified on our conclusion on this point because, as Mrs. Vukovic submitted, even the court below did not rely on these documents in reaching the conclusions it did. On the first claim by the Appellant, Mr. Katuta’s challenge is on the reasoning of the learned trial Judge. He argued that the learned trial Judge was wrong to have accepted the Respondents’ arguments that the supply of low voltage was an act of God, as according to him this was a man made problem. He reechoed his sentiments before the lower court that the Respondents should have explained how there was this short-circuiting, as this information was peculiar to them. They were in possession of that report which was produced before the lower court. They relied on the expert report on which no oral evidence was received to explain how the low voltage came about. According to him, in the absence of such explanation from the Respondents, the court should have accepted the evidence of the Appellant and should have held the Respondents liable for the Damages to the pump. His argument also is that there was evidence in the court below that on 12th August 1996 the sky was clear, no winds, no rains, no storms. He emphasized his point that the onus of establishing this act of God defence was on the Respondents. He drew a distinction between the Zaza vs ZESCO case and the case before us in that the case before us the onus shifted to the Respondents. He argued that their case was based on contractual obligation and that the Respondents were in breach of this contractual of statutory obligation under Section 9 of the electricity Act. He quoted Section 9 which says:- - J7 - “Except for causes beyond the control of the operator of an undertaking, and subject to any regulations made under this Act, no operator shall lessen or discontinue the supply of electricity stipulated in any contract of supply unless - a) b) the consumer has failed to pay charges lawfully due in terms of the conditions of supply or the agreement, as the case may be; or the consumer has failed to comply with conditions of supply or the regulations and failed to remedy the default within seven days of receiving, by registered post from the operator of the undertaking, a notice calling upon the consumer to do so. The Respondents’ response was more or less the same as their arguments before the lower court. They argued that the low voltage was caused by reasons beyond all human control in that it was caused by natural failure of the equipment. They argued that Section 9 of the Electricity Act cannot be invoked, as the cause of the low voltage was not man made. We are in difficulty in accepting Mr. Katuta’s arguments on onus probandi. The general principle which is well established and entrenched in our civil justice system is that whosoever claims must prove. This principle applies in all cases except where strict liability doctrine is invoked. As we said in the Zaza vs ZESCO case we do not see how the principle of strict liability as formulated in Rylands vs Flectcher (5) can be invoked on the facts before us where there is no issue of containment or escape of electricity. Even in this case, therefore we hold the view that there cannot be a question of faultless liability. We hold the view that in this case the onus cannot shift to the Respondents. Mr Katuta has sought to distance the Zaza vs ZESCO case rationale from this case. We see no reasons for distancing the Zaza vs ZESCO case to the case before us. In the Zaza vs ZESCO case like in this case the main contention was that the strict liability doctrine had to apply in cases where the defence is that of act of God. J8 - We see no merit in that argument. On the subsidiary claim which was that the Respondents were in breach of Section 9 of Zambia Electricity Act, in supplying low voltage to the Appellant We hold the view that as that act/omission was not deliberate. It was entirely due to circumstances beyond the Respondents’ control, Section 9 cannot be invoked. In fact Section 9 itself is very clear. It provides that where causes are beyond control of the operator of an undertaking, the operator or the supplier of electricity cannot be held liable for failure to discharge a contractual obligation. The Respondents are well covered by the provision of Section 9. On the second claim which was for damages for the Respondents' disconnection of electricity on an account which had arrears, the Appellant’s case was that it was wrong for the lower court to have held that the Respondents lawfully disconnected this account on which there were no arrears because it bore the name of the Appellant. Mr. Katuta again referred to Section 9 of the Electricity Act and argued that the Respondents were in breach of contractual obligation when they disconnected account No. 206929 instead of 183398. He further argued that the lower court erred when it held that the payment by the Appellant for K100 000 00 was an admission of the arrears outstanding at SD 17/396a Makeni. According to him this payment was made on number 183398. The disconnection was made on no. 206929 at Plot No. 7280/m Makeni. He referred to ZNBS vs Legan SCZ No. 79 of 2000 as being on all fours with the present case. He pointed out that the Respondents clearly admitted in evidence that they disconnected plot No. 7280/m Makeni - account No. 206929 to force the Appellant to clear the bills at 17/396a Makeni on account No. 183398. This, in his view, was unorthodox method of collecting arrears adopted by the Respondents which this court should not have supported. The Respondents’ response was that the court was right to have dismissed the Appellant’s claim. J9 - They argued that the Appellant never filled any cessation forms to indicate he was no long at account No. 183398 and further argued that even the disconnection notice bore his name. They pointed out to us that the Appellant’s failure to terminate the supply by filing in a cessation form meant he still had control over the supply of electricity to plot No. 17396a Makeni and that this was a personal obligation which followed him wherever he was. It was contended also that the Appellant did not deny that he owed the Respondents money for electricity supply. In the alternative their argument before us was that all these were findings of fact and that this court takes a dim view of reversing findings of fact by the lower court except where the findings are not supported by the evidence on record or perverse in keeping with what this court has held in a number of cases, e.g. Nkhata and 4 Others vs the Attorney General (4) and Wilson Zulu vs Avondale Housing Project (6). We note that according to the evidence on record it is correct that the Appellant never filed a cessation form. We therefore agree with Mrs. Vukovic that the contract between the Appellant and the Respondents was still in existence even if the Appellant was not in physical occupation at Plot No. SD 17/396a, Makeni. We also agree that having not filled in cessation forms the Appellant was still the consumer. He still had an obligation to pay the arrears. In the alternative we hold that the learned trial Judge was on firm ground when he made these findings of fact, which are supported by evidence on record. They are not perverse. We cannot fault the learned trial Judge. Because of these conclusions we hold that the appeal has no merit. We dismiss the appeal. We order costs for the Respondents. D. M. Lewanika DEPUTY CHIEF JUSTICE J10 - L. P. Chibesakunda SUPREME COURT JUDGE P. Chitengi SUPREME COURT JUDGE