Samaki Fishing Enterprises Ltd v Shella and Aor (SCZ Appeal 12 of 1998) [1999] ZMSC 82 (2 June 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 12 OF 12/98 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: SAMAKI FISHING ENTERPRISES LTD APPELLANTS AND SAISON SHELLA (MALE) 1ST RESPONDENT AND HAPPY MWABA CHUNGU (MALE) (Suing as Administrator of the Estate of Harrison Mugawa (Deceased) 2ND RESPONDENT Coram: Bweupe, DCJ; Chaila, Chirwa, JJS 4th June 1998 and 2nd June 1999 For the Appellant: Ms S. Namwinga of Chali, Chama & Company For the Respondents: Mrs C K Kafunda of Kafunda& Company JUDGEMENT Chaila, JS, delivered the judgement of the court. This is an appeal against the decision of the High Court Commissioner. For convenience, we shall refer to the Appellant as “the Defendant” and Respondents as “the 1st and 2nd Plaintiffs” as they were in the court below. The facts as found by the learned trial Commissioner were that the truck of the 1 st plaintiff being driven by his workers was involved in a traffic accident with a vanettee belonging to the defendant. The driver of the truck and another employee died as a result of the accident. - J2 - The driver of the defendant’s vehicle sustained injuries. The driver of the defendant’s vehicle was prosecuted for causing death by dangerous driving. The High Court acquitted the driver after he had been given benefit of the doubt on the cause of the accident. The plaintiffs took out civil action against the defendants company. The learned trial Commissioner found the defendant liable and made awards which have given rise to this appeal. Ms Namwinga, counsel for the defendant decided to rely on the written heads of arguments. The other side, through Mrs, Kafiinda, also relied on their heads of arguments. Ms Namwinga informed the court that they were going to rely further on the arguments in the court below. These arguments appear at pages 110 and 111 of the record. She informed us that she was also going to rely on the judgement of the High Court in the criminal proceedings in the case of THE PEOPLE vs ALEXANDER CHIMWANZA SOKO HN/43/1989 appearing at pages 112 to 117 of the record. She further relied on grounds one to three in the Memorandum of Appeal. We would like to refer to these grounds. 1. The learned trial Commissioner’s findings of fact were not supported by the evidence before him, in particular with regards to who caused the accident. 2. The learned trial Commissioner’s award of K5 million for loss of business is not supported in law or by fact and is in any case excessive in the circumstances of this case. Further the awards relating to the towing charges and the hiring of alternative transport to transport the goods from the scene of the accident was in excess of the claim by the respondent. 3. The interest awarded and the period for which it was to run was excessive and outside the principles and guidelines set by this court. We would like to refer to the arguments by the counsel in the order they were presented. - J3 - On ground 1, Ms Namwinga argued that in his judgement, the learned trial Commissioner properly posed the question “Who caused the accident?”, but unfortunately, the learned trial Commissioner misled himself by relying on the testimony of PW1, PW2, PW4 and PW6 without going into details as to whether or not such testimony contained evidence to resolve the said question. Ms Namwinga argued that the learned trial Commissioner misdirected himself in concluding that PW1 had stated what had happened between the motor vehicles before he heard the bang. She argued that the witness did not know what happened to cause the bang. She concluded in her argument that in the face of the findings of the court which tried the criminal aspect of the same accident and which found no fault in the appellant’s driver, there was no basis upon which to find the defendant in this case liable. On behalf of the plaintiffs, Mrs Kafunda submitted that there was evidence to support the fact that the accident was caused by the defendant’s driver. She referred to the evidence of PW4 as being very specific on what hit the 1st plaintiffs motor vehicle. She further referred to the evidence on record and concluded that the evidence of the two witnesses, PW1 and PW2, was very supportive of the fact that the defendant’s vehicle did overtake the Ifa truck and thereafter proceeded to attempt to overtake the 1st plaintiffs truck. Mrs Kafimda has argued that the learned trial Commissioner was therefore, not in error when he relied on the testimony of these witnesses and was on firm ground when he found that the accident was caused through the negligence or carelessness of the defendant’s driver. Ms Namwinga firmly argued that since the criminal court acquitted the defendant’s driver, the civil court should not find him liable. We have considered the submissions of both counsels and the evidence on record and the judgement and submissions in the criminal court. We have noted that in the criminal court, the appellant was given the benefit of the doubt and was acquitted. It is trite law that in a criminal matter the prosecution must prove the case beyond all reasonable doubt and if there is any doubt, that doubt is exercised in favour of the accused. This is what happened in this case. - J4 - The accused was given the benefit of the doubt. It is trite law in a civil case that burden of proof is not as heavy as the one in a criminal matter. The plaintiff is required to prove the case on the balance of probabilities. We would like to refer to the case of KABWE TRANSPORT COMPANY LIMITED VS PRESS TRANSPORT (1975 LIMITED), 1984 ZLR page 43 where the question of a conviction in a criminal matter and its admissibility in the civil proceedings were discussed. The ratio decidendi in that case was that the learned trial judge had a duty to take into consideration the evidence presented before him and should make a definite conclusion. It does not therefore necessarily follow that since in the high court the defendant’s driver was acquitted, he cannot be found liable in the civil court. In this case the plaintiff adduced evidence and the learned trial Commissioner assess the evidence and concluded that the driver of the defendant was at fault. We have read the record and the evidence and we find nothing to justify us to disagree with his conclusion. The facts show that the defendant’s driver was properly found to have been liable. The appeal cannot succeed on this ground. We turn now to ground 2 of the appeal. Ms Namwinga has argued that the learned trial Commissioner in assessing damages awarded special damages of K200,000 for towing charges and K300,000 for hiring of motor vehicle for transportation of goods. She argued that in terms of the pleading in the amended statement of claim, the plaintiffs only claimed a total of K2,000 for towing charges and another K3,000 under paragraph (g) and that there was no evidence on record to support the higher awards given by the court below. Ms Namwinga has further complained on the award of KI 0,000 per week for hiring out the truck in the Luapula Province. She has complained of the award of K5 million for loss of business. She has argued that the 1st plaintiff had admitted that he had no road service licence to transport goods for other people for gain and that in terms of the Roads and Road Traffic Act, he was prohibited to use the vehicle as a public service vehicle for the carriage of goods. - J5 - She has further complained that the learned trial Commissioner erred in not indicating on how the court arrived at the sum of K5 million as appropriate award. She has argued that in view of lack of proof, the plaintiff was only entitled to nominal damages. Mrs Kafunda on ground 2 has conceded that the awards for towing and hiring charges were wrong and she has agreed that it would have been proper for the court to award K2,000 and K3,000 instead of what the court awarded. On the award of K5 million, Mrs Kafunda has argued that the plaintiff was only required to show that he was the owner of the vehicle that it was involved in the accident and the use to which it was put since his trade was not that of a Public Road Transporter. She argued further that he did not need a road licence to use his vehicle for business. She however, admitted that there was no indication how the learned trial Commissioner arrived at the sum of K5 million, but she maintained that at page 10 of the record, the 1st plaintiff used to make K10,000 per week for hiring his truck to other people. We have considered the learned trial Commissioner’s approach on this question of K5 million as loss of business. Both counsel have agreed that the learned trial Commissioner did not indicate how he had arrived at K5 million. In cases of this nature, it is incumbent upon the trial court to indicate how damages of this nature have been arrived at. It is agreed by both parties that the proper award for towing the truck and hiring another vehicle to ferry the goods after the accident should have been K5,000. The learned trial Commissioner misdirected himself in awarding more than K5,000. On the award of K5 million, the learned trial Commissioner did not indicate how he arrived at this decision. He left a lot of things in abeyance or unresolved. We agree with the submission of Ms Namwinga that the learned trial Commissioner misdirected himself on awarding K5 million for loss of business. The learned trial Commissioner should have taken into account a number of trips the defendant was making to ferry or take goods to Luapula and how much profit he was making. There were documents produced by the 1st plaintiff, these were not considered by the learned trial Commissioner. There was going to be a question of mitigating the loss and in a case of this nature, one would consider a period of three months and the frequency of trips per month to Luapula. - J6 - All these were not considered. Evidence was there to prove that the 1st plaintiff had a business of carrying goods to the Luapula Province. We were considering ordering a re-trial in the matter so that the lower court could decide on these unresolved issues, but taking into consideration the time and the delays it would taken, we are unable to do so. Bearing in mind that the learned trial Commissioner should have taken into account the factors we have mentioned above, we set aside the award of K5 million. We feel an award of K2.5 million would be reasonable. We award a sum of K2.5 million as loss of business. We now turn to the 3 ground, this is on interest. Ms Namwinga drew our attention to the fact that this court has set certain guidelines as to the rates applicable and argued that this court has usually awarded a quarter of the short term deposit on rate for the period between the issuance of the Writ and the date of the judgement and that after the judgement, the applicable rate is six per cent (6%) per annum until the debt is satisfied. She argued that the learned trial Commissioner erred in awarding interest at the prevailing bank rate from the date of the Writ and the time of payment. Mrs Kafunda has conceded that the court went wrong when it awarded interest at the then current bank lending rate, from the date of Writ to the date of payment. She is agreeable that the court awards interest at the average short term rate from the date of Writ of Summons to the date of judgement and current lending rate there up to payment. It is not in dispute that the learned trial Commissioner misdirected himself. We, therefore, set aside the awards and order that the interest from the date of the Writ of Summons to the date of judgement will be at the average short term deposit rate and thereafter six per cent (6%) per annum up to the date of payment. As to the question of costs, we order that each party bears its own cost. - J7 - BKBWEUPE DEPUTY CHIEF JUSTICE M S CHAILA SUPREMENT COURT JUDGE D K CHIRWA SUPREMENT COURT JUDGE