Manica (Zambia) Ltd v Vidale Safaris Ltd (Appeal 142 of 1998) [2001] ZMSC 133 (1 June 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (civil Jurisdiction) APPEAL NO. 142/98 BETWEEN: MANICA (ZAMBIA) LIMITED APPELLANT AND VIDALE SAFARIS LIMITED RESPONDENT Coram: Bvveupe, DCJ; Chaila, Chirwa. JJS 27111 May, 1999 and 1st June 2001 For the Appellant: Mr. N. B. Mubonda of D. H. Kemp and Company For the Respondent: Mr. M. Sikatana of Veritas Chambers JUDGMENT Chaila, JS, delivered the judgment of the court. The appellant has appealed against the decision of the High Court awarding damages to the respondent for failure to honour the agreement entered between the parties. The facts of the case were that the plaintiff, hereinafter referred to as the respondent, took two crates of trophies for export for Messrs Silvia Bianci and Agostino Di Navone, both crates were weighed and Mr. Vidale gave the respondent documents necessary for the shipment of the trophies to Mr. Shadrick Mukubekube, an employee of the appellant. Tire documents - J2 - left in the possession of the appellant were export permits, valuation certificates, veterinary certificates and forms P5. The evidence showed that the crates were not shipped as per agreement. Some of the products like skins, started to rot and some items were missing. The appellant has advanced 6 grounds of appeal. He has, in addition, filed Supplementary submissions on which he has relied. He has further orally submitted that the evidence showed that it was the exporter’s responsibility to get the P5 form and the court ignored that piece of evidence. They have further argued that it was the respondent’s obligation to provide all the necessary documentation. On the damages, the counsel has argued that the court below did not follow proper procedures. He has maintained that the respondent should have given the value of goods. For the respondent, Mr. Sikatana has relied on his heads of argument. He has argued that there was no dispute on who was responsible to obtain the forms. He has argued that the appellant only obtained forms for one consignment. He further argued that the appellant, through a Mr. Mukubekube, undertook the responsibility to obtain the forms and urged the court to dismiss the appeal. We have read the submissions by both counsel and we are greatly indebted to them for the submissions. We have read the evidence on record and the judgment of the learned trial Judge. The evidence shows that the appellant left everything to obtaining the forms to Mr. Mukubekube. The evidence further shows that Mr. Mukubekube obtained only one form for one consignment. The evidence shows that the appellant failed to airlift the - J3 - trophies. We are in full agreement with the finding of the lower court. The appeal against liability is therefore, dismissed. On the assessment of damages, we have considered the learned trial Judge’s judgment. The learned trial Judge awarded: (a) US$13,320.00 as replacement value of the trophies; (b) USS 1,190.00 for hunting rights; (c) US$80.00 for export of game trophies; and (d) US$23,050.00 being the cost of a 21-day hunting safari to replace the trophies. In awarding these damages, the learned trial Judge stated: “In the light of this evidence, I am inclined to come to the conclusion that the trophies have attained zero value due to neglect and deterioration and for the plaintiff to be put in the position it would have been in had the trophies been shipped, there is need to replace the trophies. The only wy fresh trophies can be realized is by buying new licences. The game to be hunted shall be the same ones that were hunted in 1992 and from which the trophies, the subject of these proceedings, were extracted and the cost of replacement of the trophies shall be based on the current prices published by the Department of National Parks and Wildlife Services. ” We have considered the reasoning of the learned trial Judge. We are however, at pains to agree with him on his decision to firstly award damages to replace the trophies and secondly, make awards for hunting rights and for a number of days they are going to be in Zambia. We are of the opinion that - J4 - the other damages would be unjust enrichment. The compensation awarded covers the costs incurred in obtaining the last trophies. We feel that damages should be restricted to the replacement value of the trophies destroyed or neglected. The appeal on damages should succeed. We set aside the 2nd, 3rd and 4th heads of damages. We confirm the Is’ head of damages, which is US$13,320 at 3% from the date of the writ of summons. The appeal on damages succeeds. We shall make no order as to costs. M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE