Mkandawire v Attorney General (Civil Cause 605 of 2020) [2022] MWHCCiv 37 (7 July 2022)

REPUBLIC OF MALAWI IN ‘THE HIGH COURT OF MALAWI SITTING AT LILONGWE CIVIL DIVISION CIVIL CAUSE NUMBER 605 OF 2020 BETWEEN: DONALD KOMANI MKANDA WIRE CLAIMANT AND THE ATTORNEY GENERAL DEFENDANT BERPORE: CHILUNGA-CHIRWA (ASSISTANT REGISTRAR) APPEARANCES: Mr. Phombeya for the Claimant Mr. Kumwenda, Court Clerk and Official Interpreter ORDER ON ASSESSMENT OF DAMAGES ‘This is this court’s order upon assessment of damages in this matter. The assessment followed a default pulgment which adjudged that the Claimant be awarded repairing costs, hiring costs and costs of the acuon. “Phe claimant was the sole witness during assessment and he gave evidence which is uncontreverted. In this witness statement he states that he is the owner of motor vehicle registration number NA 6515, a Mercedes Benz AMD Salon, which wag extensively damaged as a result of a road traffic accident that occurred on the 28" day of January, 2020. It is stated that on the said day his wile Otchiwe NKosi, was using the car. It later collided with another vehicle which was negligently driven by the delendant’s agent/servant in the court of his employment, According to the statement, the accident led to damage of the claimant’s vehicle, as it had its front bumper damaged, offside lens broken and offside fender damaged. Attached are pictures of the damaged motor vehicle marked as DKM2. When the claimant went to Malawi Defence Force where the driver of the other vehicle was working, he was asked to bring quotations for the repair of the vehicle. The claimant obtained the quotauions and produced the same to the Malawi Delence Force, upon which they told him they would get back to him. ‘The claimant states that when he noted that he got no feedback lrom the MDF, he decided to hire alternative cars [rom the month of March until the Month of August, 2020 and the total burning anount came to MK13, 650,000.00. He attached copies of invoices fron Kambwali Investinents marked as DKM2 as evidence of the hires. He further states that in the month of August, 2020 he had EZK general supplies to fix the said vehicle and this amounted to MK7, 430, 427.00. He attached a copy of the invoice marked and exhibited as DKM4 as proof of moncy used in repairing the vehicle, He prayed that he be awarded the repairing costs, costs of hiring a replacement vehicle and costs of the acon. ‘Phe issue falling for consideration is how much should be awarded under the two heads of damages claimed, In the case of Ngosi t/s Mzumbazumba Enterprise v H. Amos Transport Company Limited [1999] 15 MLR 370 it was slated as follows: “assessinent of damages... presupposes that damages have been proved. The only matter that remains is the amount or value of the damages” In the casc of Livingtone v Raywards Coal Co (1880) 5 App Cas 25 at 89 it was stated as [ollows: “Where any myury is to be compensated by damages, in settling the sum to be given for reparauion you Should as nearly as possible get at the sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been hee he not sustuned the wrong for which he is now getting his compensation or reparation” There is a demarcation between general damages and special damages: the former are such that the law will presume to be the direct natural or probable consequence of the action complained of, The special damages, on the other end are such as the law will require special proof of what is claimed. (See the case of Stros Bucks Aktie Bolag v Hutchinson (1905) AC 514}. Special damages are required to be specifically pleaded and must also be strictly proved. ‘Uhis 1s according lo the case of Govati v Monica Freight Services (Mal) Limited [1993] 16(2) MLR 521 (HC). Accordingly, evidence must be adduced by the claimant claiming special damages. And where ihe evidence brought by a claimant fail to meet the strict requirement of proof, the special damages will not. be awarded. (sce Wood Industries Corporation Ltd v Malawi Railways Ltd [1991] 14 MLr 516), [have considered the evidence by the claimant in this matter in light of the above provisions of the law. The claimant has brought evidence supporting the hiring costs claimed, namely DMK3 and also evidence supporting the repairing costs, DMK4A, None of these have been challenged by the Defendant. 1 find that whatis contained in the documents is in line wilh what is claimed. | therelore award dhe damages claimed, namely: 1) MK 13, 650,000.00 as damages for hiring costs i) MIK7 430,127.00 as damages for repairing the vehicle Party and party costs shail be assessed by the Court. The Claimant should file bill of costs within |4. days of today’s date. ilis ordered. Any aggrieved party may appeal against this order within the stipulated time l[rame. Made in Chamber at Lilongwe this. fay of TAY nen 2022 Patrick Chiluniga Chirwa ASSISTANT REGISTRAR