Richmans Money Lender Enterprises v Mususu Kalenga Buildings Ltd and Anor (Appeal 68 of 2002) [2003] ZMSC 135 (14 August 2003)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 68/2002 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: RICHMAN’S MONEY LENDER ENTERPRISES Appellant And MUSUSU KALENGA BUILDING LIMITED l»t Respondent WINNIE KALENGA 2nd Respondent Coram: Chirwa, Chitengi and Silomba JJS On 17th October, 2002 and 14th August, 2003 For the Appellant : Professor M. P. Mvunga of Messrs Mvunga Associates For the Respondent : Mrs. L. Mushota of Messrs Mushota & Associates JUDGMENT Chitengi, JS, delivered the Judgment of court. Case referred to: - 1. Abraham Mohammed and Alamtara Transport Limited Vs Safeli Chumbu (1993/1994) ZR 4 In this appeal we shall refer to the Appellant as the Plaintiff and the Respondents as the Defendants which is what they were in the court below. J2 From the papers on file, it appears that the Plaintiff successfully sued the Defendants in the court below for breach of tenancy agreement and unlawful detention of the Plaintiffs’ property by the Defendants. It appears also that the matter went to the Supreme Court on appeal and the Supreme Court upheld the High Court and ordered the Plaintiffs damages to be assessed by the Deputy Registrar. On 25th June, 1999 the Plaintiff took out a Notice of Assessment of Damages by the Deputy Registrar. The Notice of Assessment was supported by two Affidavits. The Notice of Assessment of Damages was heard on 22nd August, 2002. The Plaintiff was represented while counsel for the Defendants was absent. At the hearing of the Notice of Assessment of Damages the Plaintiff gave no viva voce evidence but chose to rely on the Affidavits in Support. The sum and substance of the two Affidavits in Support of the Notice of Assessment of Damages is that before the closure of the rented offices the Plaintiff, a money lending firm, had entered into contracts with various clients who pledged goods to secure debts. At the time of closure of the rented offices the Plaintiff had also a cash flow projection of K3,377,938,171.00 as per exhibit SJ4. As a consequence of the closure and breaking into the rented offices by the Defendant’s servants and/or agents, the Plaintiff lost goods worth K17,370,000.00. The Plaintiff also suffered general inconveniences, namely loss of customer confidence and trading integrity which are quantifiable and which ought to be made good of. The Plaintiff produced proforma invoices for the current prices of the goods lost as indicated in the inventory exhibit SJ5. For the invoices see exhibits SJ1 - SJ6 to the Further Affidavit. On these facts, the Deputy Registrar held that as the Plaintiffs claim relating to his client’s property was that it be returned, he would only order its return, since the Plaintiff had led no evidence of the replacement value of the property. On the cash flow projection claim the Deputy Registrar held that any prospective loss of business would only be limited to six months being the minimum notice required to terminate a tenancy under Section 5(2} of Landlord and Tenant (Business Premises} Act. Having said this, the Deputy Registrar dismissed this part of claim on the ground that the cash flow projection was not prepared by a certified accountant. On the claim for missing goods the Deputy Registrar held that the normal measure of damages for tort is the value of the chattel at the time of the loss. As authority for this principle the Deputy Registrar cited the case of Mohammed and Alamtara Transport Vs Safeli Chumbufl). Consequently, the Deputy Registrar refused to accept the current value of the items reflected in the invoices as the true measure of the Plaintiffs loss. The Deputy Registrar held that the true measure should be the value of the items as at 1997, the time the goods got lost. The Deputy Registrar ended by saying that the Plaintiff had failed to adduce sufficient evidence to enable him arrive at an assessment with a fair amount of certainty. However, doing his best, the Deputy Registrar awarded the Plaintiff damages in the sum of K2,000,000.00 in recognition of the fact that the Plaintiff lost some goods. The Plaintiff now appeals to this court against the Deputy Registrar’s judgment on assessment. The judgment is attacked on two grounds. Firstly, that the Deputy Registrar misdirected himself in fact by stating that the Plaintiffs claim with regard to his client’s claim was merely that the property be returned J4 when there is evidence on record that the replacement value be given. Further, the value of the items could be ascertained by deducting the depreciation over the years. Secondly, that the Deputy Registrar erred in entirely ignoring the evidence available and its weight resulting in awarding minimal damages which could not have been awarded had such evidence been considered. When arguing the appeal before us, Professor Mvunga argued the two grounds of appeal as one. It was Professor Mvunga’s submission that in fact the Deputy Registrar did not do the assignment. He said the Deputy Registrar did not take into account the evidence and documents produced by the Plaintiff. While conceding that the Deputy Registrar was correct in law in refusing to accept current prices, Professor Mvunga submitted that the Deputy Registrar should have taken into account the depreciation at the time of the loss. The Supreme Court on appeal ordered that the goods be returned but they were not returned. Hence, the preparation of the inventory with prices. It was Professor Mvunga’s submission that the Deputy Registrar misdirected himself when he refused to accept the cash flow projection on the ground that it was not prepared by a professional accountant. Any knowledgeable person can produce a cash projection. If the figures were inflated then the Deputy Registrar should have reduced them. There was a breach of agreement in this case. Mrs. Mushota for the Defendants submitted that the assessment was for loss of business due to the locking up of the Plaintiffs goods at the material time. In any case, Mrs. Mushota submitted, the Deputy Registrar was on firm ground when he held that there should have been evidence as to the value of the goods at the time they were bought. The case cited by the Deputy Registrar states that the value of goods is as at the time of loss. The list exhibited does not tally with the inventory of J 5 goods that got lost or damaged. The Deputy Registrar did the best in the circumstances. It was Mrs. Mushota’s submission that the prices given are unrealistic and the Plaintiff is trying to unjustly enrich himself. She went on to submit that the issue of breach of contract does not arise because it was already determined by the High Court and the Supreme Court which ordered the return of goods and the assessment. There is no merit in the appeal and it should be dismissed with costs to the Defendants. In reply Professor Mvunga submitted that there was no opposition to the prices quoted. We have considered the Affidavit evidence which the Plaintiff relied upon and the submissions of counsel. We have also looked at the Deputy Registrar’s judgment and we have considered the grounds of appeal. We agree that the Deputy Registrar misdirected himself when he said the Plaintiff’s claim with regard to the client’s property was merely that it be returned and that the Plaintiff did not give evidence as to the value of this property. The property in question are scanning machine, Hoover and moving camera and they appear on pages 24 and 25 of the Record of Appeal. The order to return these items was already made by the Supreme Court. It was, therefore, bad pleading for the Plaintiffs to claim the return of these items when an order to that effect had already been made by the Court. It was equally a misdirection, for the same reasons, by the Deputy Registrar to make the order he did to return the items. To order the return of the items was a matter to be dealt with by the Judge as he did. The Deputy Registrar’s duty was to assess the value of these items. In fact, what we understand the Plaintiffs to mean J6 is that these items are not theirs and they want them so that they can return them to their clients. However, what we have said does not mean that the Deputy Registrar should be faulted. When the Deputy Registrar was dealing with the items in the inventory at Page 21 of the record of appeal, for reasons which we can not easily discern, he was not aware that the inventory included the property referred to as the client’s property. So, the critical issue really is whether the deputy Registrar misdirected himself when he ignored the prices in the proformas. Professor Mvunga argued with much force that the Deputy Registrar misdirected himself. While conceding that the measure of damages is the value of the property at the time of loss, as we stated in the Chumbu case, Professor Mvunga argued that the Deputy Registrar should, by deduction of depreciation, have arrived at a reduced sum than that claimed. It was Professor Mvunga’s submission that as the matter stood the Deputy Registrar did no assessment at all. In any case, he argued, the prices that the Plaintiff gave were not challenged. Mrs. Mushota’s reply to all this was that the Plaintiff failed to produce evidence to support the sum claimed. She said, given the circumstances, the Deputy Registrar did his best. We do not accept the submissions by Professor Mvunga that the Deputy Registrar should have engaged himself in an exercise to find out by how much the property in question had depreciated in value at the time of the loss. Even if the Deputy Registrar were to engage himself in such an exercise he would have no starting point as the Plaintiff did not provide the purchase prices of the property. In any case, and most J7 importantly, it is the duty of the Plaintiff to lead sufficient evidence to prove his case. Where the Plaintiff has failed to lead sufficient evidence to prove his case, it is not the duty of the court to devise other methods that will make the Plaintiff’s case succeed, as it has been suggested to us. It would be improper for the court to take such a course. In the event we accept Mrs. Mushota’s submissions that the Plaintiff failed to prove his case and that in the given circumstances, as the Deputy Registrar himself said, the Deputy Registrar did his best. The result is that we affirm the Deputy Registrar’s award of K2,000,000.00. We now deal with the claim for loss of business. On this claim Professor Mvunga submitted that the Deputy Registrar misdirected himself when he refused to accept the cash flow projection on the ground that it was not prepared by a certified accountant. It was Professor Mvunga’s submissions that any knowledgeable person can prepare a cash flow projection. If the figures were inflated then the Deputy Registrar should have reduced them. We are unable to accept these submissions. The Deputy Registrar was on firm ground when he rejected the cash flow projection prepared by the Plaintiff. A cash flow projection will always have a basis which is normally the past financial performance. In this case there were no bank statements produced before the Deputy Registrar to satisfy him that the Plaintiff was a profitable business concern, which could earn the kind of money being claimed. In other words, there was no credible evidence upon which the Deputy Registrar could accept the cash flow projection prepared by the Plaintiff. The argument that if the Deputy Registrar considered the amounts inflated then he should have reduced them is untenable and begs the question to what levels and with what amount of certainty. The Deputy Registrar could not act on figures, which appear to us to have been plucked from the air. In the event, we cannot fault J8 the Deputy Registrar. There is no merit in this appeal and we dismiss it with costs to the Defendants to be agreed upon and in default of agreement to be taxed. D. K. Chirwa SUPREME COURT JUDGE Peter Chitengi SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE