Coetser v Registrar of Land and Deeds (Appeal 14 of 1988) [1988] ZMSC 63 (29 September 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 14 of 1988 HOLDEN AT LUSAKA (Civil Jurisdictyin) .. by ..ue first proviso ■ i .vir.-t; ;• to (the -time for ".m-. -rJ w!Ii naturally GEDION PETRUS COETSER J: Appellant. Jal ' • -> 5-and:n u precludes th* rcrrrv from - REGISTRAR:OF LAND: ANDaDEEDSl>a;. Respondent) ly CORAM: Ngulube/ D. C. J., Bweupe and Chaila’,'AJJ?S?le z •. tJf? i'OTi?inje,’ • . ir;29th... Septeniber:d(,1988; J. H. Jearey of D. H. Kemp: & Company, fori-the^appellants 9-’ this No appearance for the respondents rhe case’there will be no JUDGMENT Ngulube, D. C. J. delivered the judgment of the court The appellant applied to a High Court judge for an extention of time within which to register probate affecting land. The application was made in terms of Section 6 of the Lands and'Deeds'Registry Act, Chapter 287 of the Laws of Zambia. ('There was;an affidavit in support in which it was explained that due to inadvertence or oversight grant of probate <ihad not been registered within the time required by the Act. The learned trial judge, without inviting argument and without considering thatthe application was.not-objected .to by .the.... Registrar of Lands and Deeds, held that the court,was precluded from making the order prayed for ip light of the provisions section 6 proviso (ii) of the Act. The appeal ,1s from such determination. We have no hesitation whatsoever in allowing this appeal and in granting to the appellant the order prayed'that the time for registration of the grants of letters of administration and probate '’f'Ti 'i? Jine* rtipf’--7’K’ "■v-iir be extended for a further period of thirty days. We agree with Mr. Jearey when he argues in his heads of argument that Section 5(3) of the Lands and Deeds Registry Act simply requires that probate of a Will shall be registered within twelve months. Section 6 of the Act provides that a document required to be registered which is not 2/.......... ....registered registered within the prescribed time is null and void but, in this regard, we agree entirely with Mr. Jearey that, by the first proviso to that section the court is given jurisdiction to extend the time for registration:; of any such documentiandthen the document,will-naturally be revalidated when registered. We do not agree with the learned trial judge that the second proviso r;to section 6; precludes the court .from enlarging time for registration. On the contrary, that proviso simply makes it clear that an unregistered grant of probate is void only so far as land is affected and not so far as the remainder of the estate is concerned. The proviso in,no way.precluded the court from extending the time as prayed for. For the reasons given, this appeal is allowed but on the facts of the case there will be no order as to costs. irj tc a High judgq for an cxtehtion of ; 'rjlstor probate Meeting Th® application. Oeds Act. M^ty. S< W< Ngql^^^ in ; . ;^y^CHIEI- •J mi -:e . jithir; the tiute required by i V!:? „ me, wii.n. Tit inviting ardent and : the . ication was not objected to by the /■ 'C:-;, *r' •-•-•h* “-t-* • B. K. Bweupe ACTING'JUDGE SUPREME COURT ' \i"- *’ • c . determine 11 on. m,"' ;lx. im:;r ^utto-arter in 'allowing this appeal and' r nr?v>d that the time for . M. <S.>Chaila«r. M— v-! '--'ihe.p- ACTING'JUDGE'SUPREME COURT arcane nt riv’t Action 5(3) y reCij'. re" thet -in obate o :onths- Section 6 er tha <> r ’ ■ snred which is not IN THE SUPREME COURT OF ZAMBIA SGZ JUDGMENT NO. .3P. ./19.8? (175 ) HOLDEN AT NOOLA (Civil Jurisdiction) SIL1RT BANDA Appellant v WALES SIAME Respondent CORAM: Ngulube, DCJ., Gardner, JS. AND Bweupe Ag. JS., 7th December, 1988. Nyembele, Ellis and Co., Counsel for the appellant Ms R. Nachtila, Kitwe Chambers for the respondent JUDGMENT Gardner, J. S. delivered the judgment of the court. This is an appeal against an order of damages made by a High Court Commissioner, in connection with injuries suffered by the respondent in a road traffic accident. There was evidence that as a result of the road traffic accident, the respondent suffered injuries to his right leg* He went into hospital oh one occasion when a remedial operation was carried out to his leg. Thereafter, some months later he had to return to the hospital for final treatment. There was no evidence that he suffered any permanent injury. The learned High Court Commissioner having heard the evidence made an award for pain and suffering in the sum of K8,000-00. Mr. Nyembele on behalf of the appellant, has argued that that award was inordinately high. It is a settled principle of this court that we will not interfere with any award of damages unless we find it to be totally inadequate, or, in the words of Mr. Nyembele, "inordinately high", or unless the trial court has misdirected itself. In this case we accept from the evidence, and this has been agreed by Mr. Nyembele, that the respondent suffered pain and suffering for a total of twenty weeks, for which we must be compensated. .../J2 ( 176 ) - 32 - ' : The genoral award for pain and suffering in the United Kingdom at the time of the trial of this action, which Was in April, 1985, Was in the region of £80-00 per Week. The principles Which this court has followed are that, whilst wo take notice of awards of damages made in the United Kingdom, WO do not dutomaticaily multiply Stith awards by the exact equivalent of the devalued kwacha. Following those principles and in accordance with the practice of the High Court arid this court id the past, We take the view that art appropriate award at the time of the trial should be K2OO-O0 per Week. The resulting slim, therefore, which should have been awarded to the respondent for his twenty weeks* pain and suffering should be K4,000-00. When we compete this With the dward made by the learned commissioner* We find, that* in our view, that award was inordinately high and should be interfered With by this court. We would like to give guidance to counsel so that claims for damages may be more easily settled between counsels in the future. Since the 5th of October, 1985, there has been a devaluation of the kwacha, and future awards for pain and suffering must take that devaluation into account. However, as we have emphasised before tn this court, this is not a simple matter of multiplying previous awards by the abount to which the kwacha has been devalued. Courts must take into account the general cost of living in this country and the real value that will be received. In calculating damages in future, therefore, awards should be less than what would result from a simple multiplication of previous awards as compared with the devalued, kwacha. This appeal is allowed and the award of K8,000-00 damages to the respondent is set aside. In this place we substitute an award in the sum of K4,000-00 with interest thereon at the rate .../J3 ... (177 ) - J3 - of iofi ffoiii the date of the accideht until the date of this judgment. Costs will follow the evetit and Will be awarded to the appellant. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE B. K. Bweupe ACTING SUPREME COURT JUDGE