Mwila and anor v The Attorney General (APPEAL NO. 172/2021) [2023] ZMCA 212 (31 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 172/2021 HOLDEN AT NDOLA (Civil Jurisdiction) \l'ouc OF lAMs, OFAP� / � -� ·75F Gist� ·O. Box soob7. � BETWEEN: \.\lt., BENSON MWILA (Suing in his capacity Topman Mwila} of the deceased as a er 1 ST APPELLANT 2ND APPELLANT SUSAN LOMBE (Suing in her capacity of the deceased Topman Mwila} as mother AND ATTORNEY-GENERAL RESPONDENT CORAM: KONDOLO SC, NGULUBE AND SHARPE -PHIRI, JJA. On 24th August, 2023 and 31st August, 2023. For the Appellant: Mr. M. R. Mumpa -Messrs. M. R. Mumpa and Associates For the Respondent: Mr. C. Watopa & Ms. M. Katolo-Attorney -General's Chambers JUDGMENT NGULUBE, JA, delivered the Judgment of the Court. Cases referred to: 1. Donoghue vs Stevenson (1932) AC 562 2. Anns vs London Borough of Merton (1977) 2ALL ER 3. RV Inland Revenue Commission exparte National of Self Federation Employed and Small Business \}'6\_\C Limited ( 1 F 1 7 Aiv161,.q i\.�o\lQ' �f M'"�"I � 4. Wilson Masauso Zulu vs Avondale Housing Project Limited (1982) ZR172 5. Smith vs Baker & Sons [1891] AC 325 Legislation to: referred 1. The Constitution of Zambia (Amendment Act) of 2016 2. The Intestate Succession Act, Chapter 59 of the laws of Zambia. to: Other works referred 1. Halsbury's Laws of England, 4th Edition Volume 34. 1.0 INTRODUCTION 1.1 This appeal is against a judgment of the High Court delivered by the Honourable Mrs Justice M. Mapani-Kawirnbe (as she then was) on 29th January, 2021. 1.2 By that judgment, the Court dismissed the appellants' claims for compensation and damages for lack of merit. The Court found that the appellants had failed to prove that the respondent acted negligently. 2.0 BACKGROUND 2.1 The background to this appeal is that on 6th March, 2020, the appellants who were the plaintiffs in the lower Court -J2- commenced an action by writ of summons and statement of claim against the respondent, (the defendant in the lower Court) seeking the following reliefs- (i) Compensation for loss of life 1n the sum of Kl ,200,000.00 (ii) Damages for negligence arising from cause of death (iii) Costs incidental to these proceedings (iv) Any other reliefs the Court may deem fit and just. 2.2 The appellants' contention in the lower Court was that Constable Daka (the 1st Defendant in the Court below) while on duty as a police officer, negligently shot the deceased Topman Mwila. It was alleged that Constable Daka was negligent as he mishandled the firearm which he cocked among a crowd which gathered and was unarmed at a car wash. That Constable Daka failed in his duty to protect lives of innocent people as mandated to do so by the state. 2.3 The respondent filed a Defence on 22nd September, 2020 and averred that on 24th September, 2018, Nkana Water and Sewerage Company (NWSC) employees went to Buchi Township with a Police officer, Constable Chrispine Daka, for -J3- the purpose of fixing a punctured water pipe. Upon arrival at the place, they found an illegal car wash with several young men washing motor vehicles there. When they saw the NWSC employees in the company of a Police officer, the young men became incensed and attacked Constable Daka. He tried to warn the young men but in the process, the deceased, Topman Mwila attempted to grab the firearm from the Police officer and in the process, the deceased was accidentally shot dead. It was averred that the deceased contributed to his death and died by misadventure. 2.4 The matter was set down for trial and the appellants called their witnesses. The first one was Howard Lombe, PWl, whose testimony day was that he was at the car wash on the fateful and as he waited for his car to be washed, some employees from NWSC arrived to fix a broken water pipe. PWl stopped them from fixing the pipe. The employees left and returned with a Police officer who was armed with a firearm and instructed the young men to stop washing the motor vehicles. He subsequently rebuked Topman Mwila for ignoring his instructions. -J4- 2. 5 Soon thereafter, PW 1 heard a firearm go off and later realized that Topman Mwila had been shot dead because he saw him lying in a pool of blood. PW 1 did not see the Police officer shoot the deceased because he lay down and covered his face. The deceased was rushed to the hospital where he was pronounced dead. 2.6 The respondent called two witnesses . The first was Constable Chrispine Daka who shot the deceased. His testimony was that on the fateful day, he accompanied NWSC employees to Buchi Township where they were going to fix a damaged pipe. Upon arriving there, DWI saw an angry mob who threw stones and empty bottles at the NWSC employees. 2. 7 Constable Daka tried to calm the situation down but the young men became unruly. They surrounded him and in the process, he cocked his gun. One of the young men threw a stone at the Police officer and and it hit the gun which tilted went off, resulting in the shooting of Topman Mwila. According to the Police officer, the deceased's death was accidental and was not as a result of negligence. -JS- 2.8 DW2's evidence was that his team went to the car wash to repair the lea.king pipe. There were five to six young men who after mobilizing their friends prevented the NWSC employees from repairing the pipe. That there were about twelve people in total who approached the NWSC employees one and slapped of them. His further evidence was that when he returned to the car wash with a police officer, some of the young men followed the police officer and started beating him. That the police officer wanted to raise the gun but the deceased, Topman Mwila went in front of him as he wanted to deflect the gun but it went off. 3.0 DECISION OF THE LOWER COURT 3. 1 The lower Court considered the pleadings and the evidence before it and came to the conclusion that Topman Mwila was shot dead by DW 1, Constable Daka. The Court further found that the NWSC employees and Constable Daka were confronted by an angry mob at the car wash. The Court accepted the evidence that the Police officer and the NWSC employees were attacked and beaten up by the mob and that the deceased Topman Mwila tried to grab the firearm from the -J6- Police officer and m the process, he was accidentally shot dead. 3.2 The lower Court found that the deceased put himself in harm's way when he attacked and wrestled the firearm from the Police officer. The Court concluded that the appellants failed to prove that the deceased acted negligently and went on to dismiss their claims for compensation and damages for lack of merit. 4.0 THE APPEAL 4.1 The appellants were dissatisfied with the judgment of the High Court and have appealed to this Court, advancing three grounds of appeal couched as follows- 1. The Court below erred both in law and fact when in fact there was cogent evidence pointing to the fact that Constable Daka acted negligently when he disregarded the normal police procedure of normal safety precaution when handling a firearm in every situation. 2. The learned trial Judge in the Court below erred both in law and fact when she heavily relied on the evidence of DWl and DW2 and failed to take into -J7- account that the said wi.tnesses DWl and DW2 had their own interests to serve. 3. The Court below erred both in law and fact when the Court held that the case was fundamentally flawed in that the plaintiffs came to Court in their capacities parents and not as administrators. 4.2 Prior to the hearing, counsel for the appellants filed heads of argument which they relied upon, with brief augmentation. 4.3 Arguing ground one, Counsel for the appellants that submitted in cases of negligence, the· question that the Court must determine is whether the defendant was in breach of his duty of care and whether the said breach caused damage to the plaintiff. Our attention was drawn to the case of Donoghue vs Stevenson1, where it was stated that- "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be -persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." -J8- 4. 4 The case of Anns vs London Borough of Merton2 was referred to, on the issue of whether there was sufficient relationship of proximity or neighbourhood between the deceased and the Police officer on the duty of care and whether there are any considerations that can negate or limit the duty of care. 4.5 It was submitted on behalf of the appellants that Constable Daka owed a duty of care to the deceased and that the breach of the said duty resulted in the death. The Court was urged to allow ground one of the appeal for the aforestated reasons. 4.6 In arguing ground two, it was submitted that the learned trial Judge misdirected herself by failing to take into account the fact that the deceased was a school boy who was still under the custody and care of the appellants, his biological parents and he did not own any property that would form part of his estate. 4.7 Counsel submitted that Courts should act judiciously and judicially when exercising their discretion and function. According to counsel, the lower Court should not have focused on whether the appellants had locus standi in the matter. Our -J9- attention was drawn to the case of R vs Inland Revenue Commission exparte National Federation of Self Employed and Small Business Limited3 where Lord Roskall guided that- "The term interest should perhaps be given as including any connection, association or interrelation between the applicant and the matter in which application relates." 4.8 Counsel went on to contend that the lower Court fettered itself with procedural rules contrary to the Constitution of Zambia (Amendment Act) of 2016. 4. 9 Counsel submitted that there was no conclusive evidence on record that there was an angry mob nor did any of the witnesses led to state who pulled the trigg er and consequently the death of Topman Mwila. 4.10 Counsel contended that, Constable Daka acted negligently regarding the use, control and custody of the firearm and consequently breached his duty of care to the deceased. Counsel argued that Constable Daka's testimony was marred with inconsistent accounts of what transpired on the material -JlO- day. We were urged to allow the second ground of appeal for the aforestated reasons. 4.11 Turning to ground three, it was submitted that the lower Court failed to assess and evaluate the evidence on record and erroneously concluded that the appellants failed to prove that the respondent was negligent in the circumstances. Counsel maintained that there was no conclusive evidence on record that DWl was attacked by a mob and that he was m a precarious position whose circumstances led to the death of the deceased. The case of Wilson Masauso Zulu vs Avondale Housing Project Limited4, was referred to, where Supreme Court guided that- "An appellate Court will only reverse findings of fact made by the trial Judge if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts." 4.12 It was submitted that the lower Court made perverse findings of fact regarding the evidence of PW 1, that his presence at the car wash that fateful day was questionable and that he appeared to have had another motive for being there because -Jll- of the way he reacted after the deceased was shot. We were urged to reverse the learned trial Judge's findings of fact which were allegedly erroneous and not supported by the evidence on record. Counsel urged us to allow the appeal. 5.0 THE COURT'S DECISION ON APPEAL 5.1 We have considered all the evidence on record, the judgment appealed against as well as the written and oral submissions advanced by counsel on behalf of the parties. We will now proceed to determine grounds one and two of the appeal in seriatim as they are intertwined. 5.2 Under grounds one and two of the appeal, the question for determination is whether based on the evidence on record, it can be said that the appellants proved their case on a balance of probabilities, that Constable Daka acted negligently when Topman Mwila was shot dead at the car wash on the material day. If we answer the question in the positive, we can then reverse the lower Court's findings of fact as they would have been made erroneously. 5.3 Under the first ground of appeal, it is not in dispute that Topman Mwila was shot dead by Constable Daka at the car -J12- wash on the material day. The issue that we must determine is whether the shooting was as a result of Constable Daka's negligence and whether he negligent The ly shot the deceased. learned trial Judge found that the evidence of PW 1 was questionable regarding his role at the car wash on the material day. 5.4 The Court found that the deceased acted to his own peril when he wrestled with the Police officer for the firearm which he was not trained to handle. The Court found that DWl 's evidence that the firearm was set in motion by one of the people in the mob that surrounded him was probable. The Court accepted the evidence that was presented before it to the effect that the deceased attacked the Police officer and tried to grab the firearm from him. 5.5 According to the Court, there was no evidence that the respondent acted negligently on the fateful day. The learned trial Judge accordingly dismissed claims. As the appellants' we determine whether or not these findings of fact were justified, we bear in mind the question whether the respondent -J13- acted negligently on the material day, resulting in the death of the deceased. 5.6 Both sides gave conflicting evidence as to what transpired on the material day. However what is clear from the evidence of the witnesses from both sides is that the workers of NWSC were prevented from fixing the pipe by the people who were at the car wash, making it necessary for them to return to the car wash with a police officer. It is also clear from the evidence of PW 1 and DW 1 that there was a confrontation between the deceased with other people at the car wash and DWl. 5.7 Further the evidence of DWl which was unchallenged was that he found an unruly mob at the car wash which prevented NWSC employees from operating on the punctured pipe at the said car wash. It was not disputed that the unruly crowd threw stones and empty bottles at the NWSC company vehicle and other vehicles passing by. They surrounded DWl who was trying to calm them down. When he tried to fire a warning shot, they threw a stone which hit the lower part of his gun and it went off while he struggled with the deceased who held the barrel of the gun. -J14- 5.8 The question is whether from the above circumstances, it can be said that the police officer acted negligently. In order to establish negligence, there must be- 1. A duty of care owed by the respondent to the deceased; 11. A breach of that duty by the respondent; 111. Damage caused to the deceased by the respondent which should have been caused by a breach of that duty. 5.9 There is no doubt that the police officer owed the deceased a duty of care because there was a sufficient relationship or neighborhood between the deceased and the police officer as espoused in the case of Donoghue v Stevenson. However, it is our considered view that the facts stated above do not reveal that the police officer breached his duty or that he was negligent in the way he handled his gun. We agree with the lower Court's finding that the deceased put himself in harm's way when he voluntarily took a risk of wrestling with a police officer who had a gun and was executing his duty. It is our considered view that the principle fit injuria of volenti non applies to this case. -JlS- 5.10 The learned authors of Halsbury's Laws of England, 4th Edition Volume 34 paragraph 63 state as follows with regard to the principle of volenti non fit injuria: "In order to establish the defence, must the plaintiff be shown not only to have perceived the existence of danger but also to have appreciated it fully and voluntarily accepted the risk. The Question whether the plaintiff's acceptance of the risk was voluntary is generally one of fact, and the answer to it may be inf erred from his conduct in the circumstances." 5.11 In the present case, we are of the view that the deceased perceived the existence of the danger when he and the crowd voluntarily wrestled a police officer who had the gun. We are ably guided by the case of Smith vs Baker & Sons5 where the House of Lords held that the question is not whether the injured party consented to run the risk of being hurt, but whether he consented to run the risk at his own expense so that he and not the party alleged to be negligent should bear the loss in the event of injury. Therefore, the consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk. We form -J16- the view that the deceased consented to the risk, at his own expense, that would follow from holding the barrel of the gun amongst a crowd that had got out of hand. The police officer cannot therefore be held liable for the death of the deceased. fail. Grounds one and two of the appeal therefore 5.12 In ground three of the appeal, the appellants contend that the lower Court erred when it held that the case was fundamentally flawed in that the appellants came to Court in their capacities as parents of the deceased and not as administrators. It was argued that the lower Court did not take into account the fact that the deceased was a school boy who was still under the custody and care of the appellants and that he did not own any property that would farm part of his estate. 5.13 It is important to note that as shown in the statement of claim on page 34 of the record of appeal, the deceased was 22 years old and therefore of majority age. In the proceedings in the lower Court, the appellants sought damages for negligence in their capacity as parents of the deceased. According to Section 24 of the Intestate Succession Act, Chapter 59 of -J17- the Laws of Zambia, only an administrator can legally deal with the estate of a deceased person. Section 3 of the Intestate Succession Act defines estate as- "A ll the assets and liabilities of a deceased, including those accruing to him by virtue of death or after his death and for the purposes of administration of the estate under Part III includes personal chattels." 5.14 The damages for negligence sought herein would, if granted form part of the deceased's estate. Therefore, the argument that the deceased did not own property which would constitute his estate cannot stand because even his personal chattels are part of his estate. We concur with the holding of the lower Court that this case was fundamentally flawed because the appellants commenced proceedings in their capacity as parents of the deceased and not administrators. This means that the parents of the deceased had no locus standi to commence the proceedings in the lower Court. They should have obtained letters of administration before commencing the action. -J18- 5.15 It follows therefore that the lower Court did not have jurisdiction to determine had no the matter as the appellants locus standi. fails. Ground three of the appeal also 6.0 CONCLUSION 6.1 In view of the foregoing, this appeal lacks merit and 1s accordingly dismissed. Each party shall bear its own costs. <:::: t :::::=:: :::,.. M. M. KONDOLO, SC COURT OF APPEAL JUDGE P. C. M. NGULUBE � E-�fil=Rl COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J19-