Chinanda v Mukoma Nsala Estates Ltd (Appeal 112 of 1998) [1999] ZMSC 107 (8 December 1999)

o IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 112/98 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN S D CHINANDA APPELLANT AND MUKOMA NSALA ESTATES LIMITED RESPONDENT < U Coram: Chirwa, Lewanika and Chibesakunda, JJS, On.............. For the Appellants: For the Respondents: Mr ICT Chali of Messrs Chali, Mr V K Mwewa of Messrs J B Sakala Chama & Company, Ndola JUGEMENT Chibesakunda, JS delivered the Judgement in Court Cases referred to: 1. 2. 3. 4. 5. 6. The Attorney General and D G Mpundu (1984) ZR at P. 13 Mwaba Vs The attorney General Mutale Vs Crushed Stone Sales Limited (1993-94) ZR 154 SC The Attorney General V. Mwiinde (1987) SCJ 71 Mhango V Ngulube & Others (1983) ZRL 61 Koni V. The Attorney General SCJ No. 7 of 1990 This is an appeal by S D Chinanda (the original defendants now the deceased/appellant) in a claim by Mukoma Nsala Estates Limited (the original plaintiffs now the respondents in this court). The appellants are appealing against the assessments of the judgement sum awarded to the respondents by the learned Deputy Registrar on the 9th of May 1995 in the sum of K50,000,000.00 as damages for breach of contract. - J2 - The brief facts of this case were first summarized in the learned Deputy Registrar’s reserved judgement on 9th May 1995 and secondly in the learned Judge’s appeal judgement of 10th January 1997. From these two judgements the facts as established before die court were that the respondents sued the appellants for breach of contract. The record of those proceedings is not part of this appeal record. Suffice to say that Kabalata J found in favour of the respondents and ordered the parties to appear before the learned Deputy Registrar for assessment of damages. Rather sadly, before the damages were assessed die appellants (the original defendants) died. The damages were then assessed in the sum of K50,000,000.00. Subsequently a writ of feira facias was executed on 16th of May 1995 and certain goods belonging to the appellants (the original defendants) were seized and sold by public auction in partial satisfaction of the judgement debt. According to the Deputy Registrar’s notes the seizure of the goods was not only confined to the appellant’s (the deceased) goods but also to the personal goods of the administrator of the estate. These were seized and sold. This was so because the proceeds of the sale of goods of the appellant were not sufficient to liquidate the judgement debt. The matter was then taken before the Deputy Registrar and interpleader summonses were filed on 17th August 1995. In the reserved ruling of 18th of March 1996, the learned Deputy Registrar rightly rejected the interpleader summons on the grounds that by law there was no justification in seizing the personal property of the administrator in satisfaction of the judgement debt of the appellant. The respondents appealed before the High Court judge. - J3 - The learned Judge without any legal authorities or moral justification upheld the appeal against the appellants and hence the appeal before us. Mr Mwewa in arguing the appeal for the appellants has attacked the learned Deputy Registrar’s assessment of K50,000,000.00 as damages for breach of contract. It is his argument that the learned Deputy Registrar erred in law and fact by making the award of special damages when the same was not pleaded. Citing the case of The Attorney General Vs D J Mpundu (1), he submitted that it is trite law that for a party to succeed on any claim for special damages, the same ought to have been specifically pleaded. In this case special damages were not pleaded. The statement of claim is therefore defective and as such no award of special damages could be made on these pleadings because parties arc bound by their pleadings. His second limb of argument is that even the evidence adduced by the respondents (plaintiff in the original claim) did not strictly prove these special damages suffered as a result of the alleged breach of contract. Referring to the case of Mwaba Vs The attorney General (2) he argued that the respondents did not even on the balance of probabilities establish those damages. Mi- Chali in responding to the grounds of appeal on behalf of the respondents adopted more or less the same arguments he had advanced before the lower court. On ground one, he submitted that although the endorsement on the writ of summons was one for a claim of general damages, paragraphs 8 to 9 of the statement of claim, according to him did put the appellants on notice as to the nature of damages the respondents were going to claim, namely extra costs for - J4 - engaging other contractors, consequential losses suffered by the respondents for the delay of completion of construction, refund of deposits paid to the appellants and the value of ten pockets of cement. Citing Mutate Vs Crushed Stone Sales Limited (3) in which this court, inter lia, held that a failure to strictly follow some rules should not necessarily bar a person from relief and that it is a question of fact whether such failure has prejudiced the other side, and if so whether such prejudice can be satisfied by the award of costs, he submitted that the evidence before the Deputy Registrar addressed these issues and that the appellants were made aware of these issues. On ground two, he argued that the Deputy Registrar was on firm ground in making that award, because according to him there was evidence on record at pages 21-25 establishing on the balance of probabilities the special damages suffered by the respondent. He conceded to the point that some figures of loss presented before the court were rough estimates as the respondent did not keep records of these expenses. He argued that the learned Deputy Registrar based his calculations on these figures and that there was no exaggeration on the loss incurred by the respondents. He furthermore argued that the evidence of the respondent on assessment was unchallenged. We have looked at the evidence and weighed the arguments before us. We firstly feel duty bound to comment on the learned judge’s judgement of 10th January 1997. - J5 - We are totally at a loss in following the ratio diccid end i when he held as he did in his judgement that, “It is the duty of executors, as a matter of the due administration of the estate, to pay the debts of their testator with due diligence having regard to the assets in their hands which are properly applicable for that purpose, and in determining whether due diligence has been shown regard must be had to all the circumstances of the case. The duty is owed not only to creditors, but also to beneficiaries, for the ultimate object of the administration of an estate is to place the beneficiaries in possession of their interest and that object camiot be fully achieved unless all debts are satisfied.” In our view, his understanding of the law on the role and duties of an administrator flies in the teeth of the law and commonsense as we understand it. No administrator is expected to be personally liable for any obligations incurred by the deceased. He/she steps in the shoes of the deceased only to the extent that he/she administers the estate of the deceased. This was a serious misdirection and misinterpretation of law, which would send wrong signals to would be administrators. In our view, this understanding of the law would lead to all sorts of unwarranted seizure of property of parties who are strangers to proceedings before the court. As regards to the other ground of appeal, we entirely agree with Mr Mwewa’s argument that it is a well established principle of law that special damages must at all times be specially pleaded, together with particulars of facts thereof - The Attorney General V. E J Mwiinde (4). Failure to do so must result at all times in the court concluding that no special damages must be granted. In this case special damages were not pleaded. - J6 - It is totally absurd for the learned counsel to try and hide behind circuitous arguments. Such arguments are totally unattainable at law. The learned Deputy Registrar misdirected himself on this point. He ought not to have granted any damages under the head - special damages. The learned advocate has cited the case of Mutale Vs Crushed Stone Sales Limited (3). In our view this case is distinguishable from the case before us. In the case of Mutale the parties long before trial tried to reach an ex-curia settlement of medical expenses incurred by the appellant in Australia. Documents indicating medical expenses incurred also were exchanged before the case was heard indicating that he would be asking for “special damages” although the word “special damages” was used in a different context. The court held that the other side had been put on alert quite early in the proceedings. The other party therefore was not taken by surprise. In the case before us, the evidence that the learned counsel for the respondent is trying to rely on as putting the other side on alert came during the assessment before the Deputy Registrar. In our view this was totally late. Also in Mhango V Ngulube and Others (5), this court held that “Any party claiming special loss must prove that loss and do so with evidence which makes it possible for the court to determine the value of the loss.” In the case of Koni V. The Attorney General (6), this court emphasised the need for documentary or independent evidence to prove special loses. There was no such evidence before the court. What we are therefore saying is that the law in the Attorney General V. Mpundu (3) is still good law. - J7 - In this case the respondent did not produce evidence - documentary or independent evidence to prove the loss. The evidence was speculative. Courts must at all times deal with facts proved in assessing damages. Besides there is evidence at pages 22 - 23 on record that the respondent built another mill and started operating quite profitably. The learned Deputy Registrar did not take that into account in granting damages. He misdirected himself on that point. We therefore uphold the appeal. We squash the Deputy Registrar’s order on ‘Special Damages’. We also squash his order on ‘General Damages’. We order the matter to go back to the Deputy Registrar for re-assessment on General Damages. Costs for the appeal are for the appellants. CHIRWA SUPREME COURT JUDGE LEW ANIKA SUPREME COURT JUDGE L P CHIBESAKUNDA SUPREME COURT JUDGE