Maybin Mukosha v Chimfwembe Mwenya (Appeal 30/2022) [2024] ZMCA 74 (12 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal 30 / 2022 (Civil J urisdiction) BETWEEN: MAYBIN MUKOSHA APPELLANT AND CHIMFWEMBE MWENY A RESPONDENT Coram: Majula, Ngulube and Banda-Bobo, JJA On 18 January, and 12t h February, 2024 For the Appellant No appearance For the Respondent Mr. W Simutenda ofT. M. B Advocates on Behalf of Chali Chitala Advocates. JUDGMENT MAJULA J A, delivered the J udgm en t of th e Court Cases referred to: 1. Phillip Mhango vs Dorothy Ngulube (1983) ZR 61 2. Wilheim Roman B u chman vs Attorney General (1994) S. J. 76 (S. C.) 3. Chango Muk.uma vs David Kangwa Nkonde SJ 11 of 2015. 4 . 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.). 5. William David Carlisle vs E. F. Hervey Limited (1985) ZR 179. 6. David Chiyengele and Others vs Scaw Limited SCZ Judgment No. 11 of 2015. J2 7. Cavmont Bank Limited vs Cereal Millers and Farm Limited & Other SCZ Appeal 277 of 2021 . 8. J. K. Rambai Patel vs Mukesh Kumar Patel (1985) ZR 220. 9. Y. B. and F. Transport Ltd vs Supersonic Motors Limited (SCZ No. 3 of 2000). 10. Scherer vs Country Investments Limited (1986) 1 WLR 615. 11 . Mutale vs Zambia Consolidated Copper Mines (1993 - 1994) ZR 94 (SC) Legislation & works referred to: 1. Sale of Goods Act 1894 (UK) 2. Harvey McGregor, McGregor on Damages (1997) 16th edition, London: Sweet and Maxwell. 1.0 Introduction 1. 1 The genesis of this appeal is a decision of the Honourable Lady Justice Lamba in the High Court who found in favour of the respondent after she had been approached with a grievance by the appellant over a dispute he had with the respondent regarding his Chevrolet vehicle. 1.2 The appellant was seeking recompense for damage occasioned to his vehicle which was allegedly stripped of its parts. The appellant also sought damages for trespass to property as well as restoration of the Chevrolet vehicle to its former condition. In a judgment delivered on 16 th September 2021, Lamba J dismissed the appellant's claims and this is what has triggered the appeal before us. 1.3 In this appeal, we will be interrogating the raising of issues on appeal that were neither pleaded nor brought before a trial J3 court. We shall also consider the circumstances in which nominal damages for loss of use of land may be awarded as well as the discretionary powers of a court to award costs. 2 .0 Background 2.1 The undisputed facts were that the appellant was a tenant of Mr. Chileshe Bweupe who was the proprietor of the property now owned by MDC Milling Company Limited in which the respondent is a director. During the tenancy, the appellant had placed some properties on the premises which included a Jeep , a Chevrolet motor vehicle, speed boat and a power generator. When he became aware of a change in ownership, the appellant removed most of his properties from the premises except the Chevrolet motor vehicle which remained there for over a year without the consent of the respondent. 2.2 Sometime later, the appellant went to the premises and discovered that the Chevrolet was not there. Upon further inquiry, he found the vehicle in a stripped state with a person called Richard. 2 .3 The respondent however contended that the said vehicle had become a nuisance which prevented him from commencing construction works for the milling plant. He therefore gave it away as scrap to Richard. 2.4 Piqued with the state in which he found the vehicle, the appellant issued a writ against the respondent seeking damages as well as restoration to its former state. The J4 respondent counterclaimed damages for loss of use of land and loss of projected earnings from the milling plant. 3.0 Decision of the lower court 3.1 The court below scrutinized the evidence and the submissions and found that there was no formal agreement between the parties for the appellant's vehicle to remain on the premises. She further found that the continued presence of the vehicle on the premises had become an inconvenience to the respondent and he could therefore not be blamed for removing it. 3.2 Overall the court found that the stripping of the vehicle could not be solely attributed to the respondent in that other people could have taken advantage of the situation and thereby removed some parts. 3.3. Ultimately, the appellant's claims were dismissed. The respondent was however awarded KS ,000 as nominal damages for loss of use of land was also awarded costs. 4.0 Grounds of Appeal 4.1 Unhappy with the outcome, the appellant 1s before us fronting three grounds couched as follows: "1 . The learned trial Court misdirected herself at law and on facts by failing to make a finding at law and fact that the JS respondent had no legal right to dispose of the appellant's property by giving it away to Richard. 2. The learned trial court misdirected itself at law and fact by making a.finding of facts that the respondent suffered loss of use of the premises when no evidence was led as to the use of the premises and income from the premises. 3. The learned trial court misdirected itself in awarding the respondent costs in the light of the evidence on record." 5.0 Appellant's Arguments 5.1 In the appellant's heads of arguments, it was submitted in support of ground one that the respondent did not have a legal basis to dispose of the vehicle without the consent of the owner. In addition, counsel for the appellant has drawn our attention to the Sale of Goods Act rule called nemo dat quod non hebat. That this rule has been codified in section 21(1) of the Sale of Goods Act. That the conduct of the respondent is contrary to the aforecited section 21 (1) of the Sale of Goods Act 1894 and therefore amounts to trespass to property. 5.2 Pertaining to ground two, the kernel of the appellant's submission was that the lower court misdirected itself when it made a finding of fact that the respondent suffered loss of use of the premises when no evidence was led to that effect. J6 5.3 We were therefore implored to reverse the finding of fact on the strength of the case of Phillip Mhango vs Dorothy Ngulube. 1 5.4 Pertaining to ground three, the appellant submitted that he ought not to have been condemned in costs given the conduct of the respondent in this m atter. 6.0 Respondent's Arguments 6.1 In the first ground of appeal, the respondent has contended that the appellant has raised an issu e that was never raised in the court below. That the question of liability was never put to the lower court for determination. It has been argued t h at the appellant had claimed for damages occasioned to the Chevrolet and the issue of whether or not there had been a sale had never been pleaded. On account of the appellant having raised unpleaded matters, we have been urged not to en tertain the appellant as it is against the established principles of law that unpleaded matters cannot b e raised on appeal. To reinforce this submission, Counsel has drawn the court's attention to the cases of Wilheim Roman Buchman vs Attorney General2, and Chango Mukuma vs David Kangwa Nkonde3 . Counsel has further placed reliance on t h e case Anderson Kambe la Mazoka, Lt General Christon Sifapi Tembo, Godfrey Kenneth Miyanda vs Levy Patrick Mwanawasa, The Electoral Commission of Zambia, The Attorney General 4 which enunciates the principle on the functions of pleadings as well J7 as William David Carlisle vs E. F Hervey Limited5 • These two cases clearly explain the purpose of pleadings which is that each party is given fair notice of the case intended to be set by others. In addition, that parties are bound by their pleadings. 6.2 It has been spiritedly argued by the respondent that the issue that there was a sale transaction between the respondent and Richard was never pleaded and therefore on this account, the first ground should suffer the fate of dismissal. 6. 3 Turning to the second ground of appeal, which is in relation to the nominal damages that were awarded, the respondent's reaction is that the court below was on firm ground when it made this award. In this regard reliance has been placed on the authors of McGregor on Damages who explain what nominal damages entail. 6.4 They have also adverted to the case of David Chiyengele and Others vs Scaw Limited6 and Cavmont Bank Limited vs Cereal Millers and Farm Limited7 which speak to entitlement to nominal damages where there has been a failure to prove actual damage. 6. 5 Moving on to the 3 rd ground which attacks the court below for having condemned the appellant to pay costs, the brief response is that there was nothing untoward by the decision of the court. It has been asserted that costs are in J8 the discretion of the court and the provisions of Order XL rule 6 of the High Court Rules have been called in aid. 6 .6 To further strengthen his argument, the respondent has cited the cases of J. K. Rambai Patel vs Mukesh Kumar Pate l8 and Y. B. and F Transport Ltd vs Supersonic Motors Limited9 which articulate the principle that a successful party should normally not be deprived of his costs. In relation to the case in casu, we have been called upon to uphold the award of costs on account of the fact that the respondent had succeeded in litigation and the court exercised its discretionary powers based on the foregoing authorities. 7.0 Hearing of the Appeal 7.1 Appellant's Counsel filed a notice of non-attendance when the matter came up for hearing on 18th January, 2024. Mr. Simutenda applied for leave to file heads of argument for respondent as service of the appellant's heads of argument had only been effected two days prior to the hearing of the appeal. The prayer was granted. 8.0 Decision of this court 8. 1 We have carefully reflected on the record of appeal and submissions of the parties. The frustration by the appellant stems from the manner in which the respondent disposed of his motor vehicle namely the Chevrolet. According to the appellant, this was contrary to the provisions of section 21 J9 of the Sale of Goods Act 1894. However, the Judge was of the view that the respondent could not be faulted for the manner in which he disposed of the Chevrolet. 9.0 Disposal of Goods 9. 1 The first ground of appeal is hinged on the provisions of the Sale of Goods Act 1894. Section 21(1). It has been argued that the respondent had no legal right to dispose of the property and by giving it to Richard, the appellant "equated it to an act of selling or other disposition". The respondent, on the other hand, has strongly contended that this issue was never raised in the court below and that being the case, it cannot be raised at this stage of the proceedings. 9.2 We have examined the opposing arguments and the record in particular the claims in the statement of claim that appear at page 17 of the record of appeal. Of particular interest are the following claims: " 1. Damages occasioned to the Chevrolet Motor vehicle by the defendant stripping off of spare parts and rendering it a shell or scrap; 3. Damages for trespass to property; 4. In the alternative restoration of the Chevrolet motor vehicle to its farmer condition." 9.3 It is crystal clear from the foregoing that the issue of liability of the respondent or there being a sale transaction was never raised in the court below. In the year 1996, the Supreme JlO Court clearly stated in the case of Wilheim Roman Buchman vs Attorney General2 that: "A matter not raised before a commissioner cannot be raised as a ground of appeal. " 9. 4 In Chango Mukuma vs David Kangwa Nkonde3 , the apex Court reiterated the position as was stated in Buchman. That being the position of the law we are inclined to agree with the respondent that the question of liability was never put to the lower court for determination and can the ref ore not be raised as a ground of appeal. Furthermore, the function of pleadings has been outlined in the case of Anderson Kambela Mazoka and Other vs Mwanawasa4 and numerous other cases. We therefore could not agree more with the respondent that the appellant did not plead the issue of sale. 9.5 In light of the foregoing, we are of the well-considered view that anchoring the first ground of appeal on the Sale of Goods Act is misconceived as it was never pleaded in the court below. We stand guided by the cases aforecited of Wilheim Roman Buchman vs Attorney General2 and Chango Mukuma vs David Kangwa Nkonde3 • 9.2 We accordingly find no merit in ground 1 and we dismiss it. 10.0 Loss of use of premises 10. 1 The dissatisfaction in the s econd ground of appeal anses from nominal damages awarded to the respondent for loss of Jl 1 use of the premises. The appellant has attacked the court's finding on the basis that the loss was unsubstantiated and no evidence was led but in spite of this, nominal damages were awarded. It is the contention by the appellant that the court misapprehended the facts and the respondent's counterclaim should be reversed. 10.2 The preceding argument takes us to scrutinize what nominal damages entail. Having perused the record, it is clear that the respondent did not present material to support a claim for compensatory damages. We, however, should not lose sight of the circumstances of this case in that the respondent did indicate that he wanted to use the premises for a milling plant and was inconvenienced by the presence of the Chevrolet. It can therefore not be disputed that the respondent suffered a legal wrong, but however did not substantiate the financial loss occasioned. That being the case, an award of nominal damages is what would vindicate him for an invasion of his rights. 10.3 Nominal damages are awarded in essence to a party whose legal right has been technically violated but who has not established that they are entitled to compensatory damages. It is our perspective that the court below was on terra .firma in awarding nominal damages given the circumstances of the technical violation of the respondent's rights although they were unable to prove any injury. We are fortified by the works of the learned authors of McGregor on Damages called in aid by the respondent where they stated at page 281 that: J12 "Technically, the law requires not damage but an injuria or wrong upon which to base a judgment for the claimant, and therefore an injuria, although without loss or damage, would entitle the claimant to judgment. Since a judgment awarding money was practically the only judgment which the common law could bestow, a judgment for a nominal sum of money or for "nominal" damages" was given. The best statement as to the meaning and incidence is given by Lord Halsbury L. C. in The Mediana where he said: "nominal damages" is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. " 10.4 Entitlement to nominal damages has also been examined in the case of David Chiyengele and Cavmont Bank Ltd vs Cereal6 . This case is in line with what the authors in McGregor on Damages that aptly articulated. On the basis of the fore going, we find that the award of nominal damages was in tandem with the law. 10. 5 We accordingly find the second ground of appeal to be devoid of merit for the reasons advanced. J13 11.0 Costs 11. 1 The third ground of appeal is criticizing the court below for condemning the appellant in costs. The question of an award of costs has been dealt with in a plethora of authorities. The principle in the award of costs is that the successful party is entitled to an award in other words, costs follow the event. This was pertinently enunciated by Dudley W, in the case of Scherer vs Country Investments Limited10 at page 64 where he stated: "The normal rule is that costs fallow the event. The party who seems to have unjustifiably brought another party before the court or given another party cause to obtain his rights, is required to recompense that other party in costs, but; the judge has unlimited discretion to make what order as to costs he considers that the justice of the case requires, consequently, a successful party has a reasonable party expectation of obtaining an order to be paid the costs by the opposing party but has no right to such an order for it depends upon the excuse of the court's discretion." 11.2 In our jurisdiction, the principle on costs was articulated in the case of Y. B. and F. Transport vs Supersonic Motors Limited9 in the Suprreme Court which held as follows: "The general principle is that costs should follow the event, in other words, a successful party should normally Jl4 not be deprived of his costs, unless the successful party did something wrong in the action or in the conduct of it." 11 . 3 The cases of J. K. Rambai Patel vs Mukesh Kumar Pate l8 and Mutale vs Zambia Consolidated Copper Mines11 all espouce the same principle. In this case, we are of the view that the learn ed Judge properly exercised her discretion in awarding costs to the respondent based on the fact that he had succeeded in his counterclaim. We therefore find no merit in this ground of appeal and we dismiss it. 12.0 Conclusion 12.1 In a nutshell, we find the entire appeal to be unmeritorious and we dismiss it. 12.2 Costs follow the event, to be taxed in default of agreement . .. .... . ... -~ ..... ..... ..... . ;,·-M·.t/4aj~ia COURT OF APPEAL JUDGE (fJLL P. C. M. Ngulube COURT OF APPEAL JUDGE ··· ····· ·~ ·· ··· ············ A. M. Banda-Bobo COURT OF APPEL JUDGE