Stallion Motors Ltd v A.M.C Contractors Ltd and Ors (SCZ 8 of 2002) [2003] ZMSC 163 (3 December 2003)

IN THE SUPREME COURT FOR ZAMBIA SCZ/8/2002 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: STALLION MOTORS LIMITED Appellant and A. M. C. CONTRACTORS LIMITED 1st Respondent ANTHONY SHAMBAKA (Suing as Administrator of the Estate of The Late Anthony Shambaka) BIZWELL MUSHINKA (Suing as Administrator of the Estate of The Deceased Edwin Mwape) ALBERT PAMESO (Suing as Administrator of the Estate Of the Deceased Felix Pameso) 2nd Respondent 3rd Respondent 4th Respondent CORAM: Chirwa, Chitengi and Silomba, JJS On 4th September, 2002 and 3rd December, 2003 For the Appellant Mrs. M. Kunda of Messrs George Kunda & Company For the Respondent Mr. M. Chitabo of Messrs Chitabo & Associates JUDGMENT Chitengi, JS, delivered the Judgment of the Court Authorities referred to:- 1. The Attorney-General Vs Marcus Kapumba Achiume 1983 ZR 1 J 2 In this appeal, we shall refer to the Appellant as the Defendant and the Respondents as the Plaintiffs, which is what they were in the court below. In a short compass, for purposes of this appeal, the facts of this case can be briefly stated. The first Plaintiff was at the material time a company involved in the repair of the road in the Congo Pedicle, that piece of the Congo which juts out into Zambia. People travelling from Mufulira on the Copperbelt to the Luapula Province have to use the road passing through the Congo Pedicle. The second, third and fourth Plaintiffs are the personal representatives of Anthony Shambaka, Edwin Mwape and Felix Pameso respectively, who were employees of the first Plaintiff and who perished in the road traffic accident under inquiry. Edwin Mwape was the first Plaintiffs site engineer while Anthony Shambaila and Felix Pameso did other jobs. Like any normal men, the deceased had wives and children. The road traffic accident happened at a place called Lubembe in the Congo Pedicle, which, according to the evidence, is some 45 or 55 kilometers from Mokambo. From the evidence, it is, generally, common cause that on the fateful day the weather was clear and the road was in good condition, although there was grass outgrowth on the sides of the road. The collision' happened at a place where the road curves and descends. The motor vehicles involved in this collision were a Toyota Hilux AAN 9986, driven by the deceased Edwin Mwape, and a Volvo Truck registration number ACC 9625 with a trailer registration number ACA J 3 8720T driven by Richard Bwanali, an employee of the Defendant. The truck and the trailer were laden with some 20 or 30 tonnes of fresh fish. The eyewitnesses to this traffic accident were only two. These were Richard Bwanali, who was the second defence witness and driver of the truck and Bwalya Mwisa, an employee of Chani Enterprises Limited, who was traveling in the truck with Richard Bwanali and the first defence witnesses. The other witnesses, that is, Austin Musubila Chibwe, the Managing Director of the first Plaintiff, and the Plaintiffs first witness, the two Police officers, D/Inspector Andrew Mbangweta Akaliwa (PW4) and Inspector David Sichande (PW5) went to the scene after the collision had already taken pl„ace. According to Richard Bwanali and Bwalya Misa, before the bend where the collision took place they were driving along a swampy place. There was water on both sides of the road and Richard Bwanali was driving in the middle of the road. After crossing the swampy place Richard Bwanali went to the right as they approached the bend. In the Congo one drives on the right side of the road. While going round the curve they saw a vannette approaching at high speed in their lane (right lane). Richard Bwanali flashed the lights to warn the driver of the vannette that he was in the wrong lane but in vain. The vannette collided with the truck and got trapped under the truck on the right front hand side of the truck. After the collision the truck pushed the vannette backwards for some 15 to 20 metres. The truck was a right hand drive. At the time of the collision the truck was doing about 50 to 60 km. Richard Bwanali did not stop immediately because the brakes and hydraulic pipes were broken. Richard Bwanali has driven through the Pedicle for six years. J 4 Before the collision, John David Kabunda (PW8) was with the deceased persons at the camp, which was on right side of the road as one comes from Mokambo. The deceased, Edwin Mwape, who was driving the vannette left with the other two deceased to check the road i works. The time was about 10:00 hours. Shortly after Edwin Mwape and the others had left he heard a loud bang of motor vehicles colliding. Shortly after that he got a report from villagers that a truck had hit the vannette. As a result, he rushed to the scene with the villagers. At the scene, he found the vannette trapped under the truck and Edwin Mwape and the others were dead or dying. After extricating the motor vehicles from each other John David Kabanda went to check the part of impact following the groove, made on the road by the vannette as it was being pushed backwards. John David Kabanda saw broken pieces of glass on the right side of the road as one goes towards Chembe from Mokambo. The truck collided with the vannette on the right side as one goes towards Chembe from Mokambo. But according to Inspector Sichane, he observed that the accident took place at a curve. He found the vehicles on the left side of the road as one comes from Mokambo and the vennette had been pushed backwards for about 200 meters. The front of the vannette was completely damaged. The truck had damages to its front right side and the right headlamp was broken. However, Inspector Sichande was not certain of the part of impact. In re-examination Inspector Sichande said the skid marks started on the right as one comes from Chembe, then to the left and back to the right where he found the motor vehicles. Philip Chikula Mwila, an Accountant with the Appellant, who went to the scene of the accident after receiving a report from Bwalya Mwisa (DW1) found the truck on the right side of the road as one comes from Chembe. The other motor vehicle had already been removed. He noticed J 5 that the truck had damages on the right side. The right hand side headlamp and sidelights were broken. According to him the point of impact was about 20 paces from the place where the truck was. But according to Inspector Akaliwa, the scenes of crime officer, the point of impact was on the right side of the road as one goes towards Luapula. Later, he said although the Police report said the accident occurred in the truck driver’s correct lane he did not agree. On these facts the court below found that the Defendant’s driver was negligent in his driving and, therefore, responsible for the collision. Consequently, the court below entered judgment for the Plaintiffs with damages to be assessed by the Deputy Registrar. The Defendant now appeals to this court against the judgment of the court below. In the Memorandum of Appeal the Defendant filed five grounds of appeal. But when arguing the appeal before us, Mrs. Kunda, learned counsel for the Defendant, consolidated grounds four and five, with the result that the grounds of appeal argued were only three. But after considering the arguments of counsel, we are of the view that the three grounds of appeal in fact boil down to one ground of appeal only, which is that the court below misdirected itself in holding that the Defendant’s driver was fully to blame for the accident and that he was guilty of negligent driving. Mrs Kunda filed heads of argument in which she cited many authorities and also made oral submissions. However, on account of the view we take of this appeal, we do not intend to reproduce the J 6 submissions in detail. Suffice it to say that we have given our anxious consideration to these submissions and the authorities cited to us. The thrust of Mrs. Kunda’s submissions and arguments is that the findings of fact made by the court below that the Defendant’s driver was driving at high speed; that the Plaintiffs driver was not speeding and that the Defendant’s driver was wholly to blame for the accident and was driving negligently are not supported by evidence. On the contrary, there is evidence from the Defendant’s witnesses that the Plaintiff’s driver was over speeding and that the Defendant’s driver was doing about 50 kilometres per hour. The Police report shows that the point of impact, as deduced by the Police from the scene of the accident, the collision took place in the Defendant’s driver’s rightful side of the road as one comes from Chembe. Further, Inspector Sichande (PW5) said that the skid marks started from the right as one comes from Chembe, showing that the accident took place in the lane of the Defendant’s driver. Mrs. Kunda also raised the issue of contributory negligence on the part of the Plaintiffs driver and argued that the court below misdirected itself in dismissing the Defendant’s counter claim to that effect. Mrs. Kunda argued that on the facts of this case, the court below should at least have found the Plaintiffs driver guilty of contributory negligence. It was Mrs. Kunda’s submission that the court below misdirected itself when it rejected the testimony of the Defendant’s eyewitnesses. Mrs. Kunda also drew our attention to the contradictions in the Plaintiffs evidence as to how far the vannette was pushed backwards by the truck. In view of these contradictions and the fact that the truck was laden with 20 to 30 tons of fish and that it was traveling at 50 kilometers per hour and that the accident took place at a bend, Mrs. Kunda J 7 submitted and argued that the vannette could not have been pushed for 100 or more metres backwards. The Plaintiff failed to prove how the vannette was pushed for 100 metres at a bend. Was it pushed in a straight line, Mrs Kunda asked? If the vannette was pushed backwards it was because the truck and its trailer were heavy and not because of speed. It was Mrs Kunda’s submission that the evidence by the Defendant’s witness that the vannette was pushed for about 10 - 20 metres was much more credible. Mr. Chitabo, learned counsel for the Plaintiffs, filed heads of argument and also made oral submissions. In his submissions Mr. Chitabo supported the findings of fact by the court below. It was Mr. Chitabo’s submission that the statement of the Defendant’s driver to the Police is at variance with his statement in court that he was driving on the right side of the road. To the Police the Defendant’s driver said the vannette went to the left side where he was driving. The fact that the impact was on the right side of the truck is ✓ consistent with the fact that the Defendant’s driver was driving on the left side or in the middle of the road. About the distance, the vannette was pushed backwards, Mr. Chitabo submitted that the court below resolved this issue at Pl7 of the record lines 14 to 15 where the court accepted the Plaintiffs evidence that the vannette was pushed backwards for 100 metres or more before the truck stopped. In any case, Mr. Chitabo submitted, even if the vannette was pushed backwards for 10 metres this shows speed. As to the condition of the road, Mr. Chitabo submitted that the road was good. J 8 About contributory negligence, it was Mr. Chitabo’s submission that there was no contributory negligence and that even if there was, it would only affect the damages. We have carefully considered the evidence that was before the court below, the submissions of counsel and we have looked at the judgment of the court below. As we see it, the determination of this appeal turns on the question whether on the evidence before it the court below was entitled to make the findings of fact it did. We have stated in many cases that, generally, this court cannot interfere with the trial Judge’s findings of fact. However, there are exceptions to this principle. One of the cases in which we stated the exceptions is the case of The Attorney-General Vs Marcus Karnpurriba Achiume (1). In that case we laid down the principle that the appeal court will only reverse findings of fact made by a trial judge when it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make. In the Achiume case we also laid down the principle that an unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make, and entitles the appeal court to interfere. On the evidence, we have no hesitation whatever to accept Mrs. Kunda’s submissions that the findings of fact made by the court below were not supported by evidence. We also accept Mrs. Kunda’s J 9 submissions that the court below misdirected itself when it dismissed the testimony of the Defendant’s eyewitnesses. In fact, on our part, we would say that the court below did not only make an unbalanced evaluation of the evidence tilted in favour of the Plaintiffs but also unjustifiably saw the Defendant’s entire case in very dim light. This, the court below did, although the Plaintiffs evidence was outweighed by the defence evidence. As we have already said, the only eyewitnesses to the accident were the Defendant’s witness. Indeed, in coming to it’s finding that the Defendant’s driver was driving negligently, the court below heavily relied on the evidence of the Defendant’s two eyewitnesses, which it greatly misapprehended. Commenting on how the collision occurred the court below said this: - “In the present case there is evidence from (DW1) that prior to the accident DW2 was driving in the middle of the road because the road was slopping on both sides. Further, there is evidence from DW1 again that there was tall grass on both sides. Although he was driving at high speed in the middle of the road and there were tall grasses on both sides of the road which must have limited the Volvo drivers view of the road when he approached the bend or curve where the accident took place DW2 never decelerated or reduced speed of his truck.. The result was that the accident became inevitable due to high speed. DW2 and the on coming vehicle, the vannette could not avoid the collision.” J 10 The court below concluded by saying:- “In short the accident occurred because (a) The Defendants driver was driving at an extremely high speed. (b) That ,he failed to keep proper look out for other vehicles on the road and this was accentuated or made worse by his high speed and tall grass and (c) That he failed to keep to his proper and own side of the road as he was driving in the middle of the road.” About the Defendant’s driver driving at extremely high speed, we have searched the record for the evidence that the Defendant’s driver was driving at high speed but in vain. On the contrary, the evidence on i record is that the Defendant’s driver was not driving fast. According to DW1, who was with the Defendant’s driver in the motor vehicle, the Defendant’s driver was doing about 50 to 60 kmph. And the Defendant’s driver put his speed at 50 kmph. The court below had, therefore, no evidence upon which it could make a finding that the Defendant’s driver was driving at extremely high speed. High speed cannot be presumed, as the court below did, from the fact that the truck was driving on a long journey. There is no such presumption of fact known to law. The court below also drew inferences of speed from the damage to the vannette and the distance the vannette was pushed backwards after the collision. The court below found that the vannette was crashed and pushed backwards for 100 metres or more. But having regard to the size of the motor vehicles involved in the collision, a small vannette and or truck and trailer laden with 20 to 30 J11 tonnes of fresh fish, and the fact that the collision took place at a descent, the crushing of the vannette cab, and not the entire vannette as the court below said, is not evidence of high speed. The sheer weight of ’the laden truck and trailer traveling at 50 or 60 kmph can cause such damage. In any case we would not rest our judgment on the distance at which the two motoi- vehicles stopped after the collision. This appeal must be determined on who was driving in the wrong lane. With respect to the Defendant’s driver driving in the middle of the road at the time of the collision, we hold that this finding of fact was also not supported by the evidence on record. As we have already said, the court below in coming to this finding heavily relied on the evidence of DW1. The Court below misapprehended DWl’s evidence. DW1 did not say that during the collision the truck was driving in the middle of the road. The relevant parts of DWl’s evidence are these: - “after crossing the river and as we approached Lubembe village we were going towards a river. On both sides there is water with a road in between. The truck was therefore traveling in the middle of the road.......... one travels on the side which is good. ” “After we crossed the swampy place we approached a bend near a village. We went towards the right hand side as drivers drive on the right hand side in Congo DR. We approached the curve and before we drove past the curve I saw a vannette approaching from the opposite side..... ” “The vannette was in our lane, which was on its left lane. Before I could realize the two motor vehicles collided........” J 12 On DWl’s evidence, we cannot find, as the court below did, that the collision took place while the Defendant’s driver was driving in the middle of the road. Looked at in light of the damage to the vehicles, such view of the evidence would be totally unreasonable because, contrary' to Mr. Chitabo’s submission, if the truck was driving in the middle of the road and the vannette was on the right side as one goes towards Chembe, then the damage to the truck would have been on the front left side and not on the front right side of the truck. When the evidence of the Defendant’s driver, DW1, the Traffic officer, Inspector Sichande (PW5) as to skid marks and the damage to the motor vehicles is taken together and correctly evaluated, the fact that the deceased driver of the vannette failed to keep to his proper side in that he was driving on the left side of the road going towards Chembe at high speed when he should have been driving on the right side going in the same direction stands out clearly. This evidence also clearly shows that the Plaintiffs’ witnesses were not telling the truth. Inspector Akaliwa (PW4) cannot refuse to accept the findings of the Traffic Officer when his job was that of taking photographs. Indeed, even the position of the truck in the pictures PW4 took shows that, for reasons known to himself, PW4 was not telling the truth when he said that the collision took place in the vannette driver’s lane. We have no doubt in our minds that had the court below property evaluated the evidence it would have come to the same conclusion as we have done. In the circumstances, we do not accept Mr. Chitabo’s submission that the court below was on firm ground when it made the findings it did. It is quite clear to us, as Mrs. Kunda submitted, that the findings of the court below were not supported by evidence. Further the court below J 13 also misdirected itself when it misapprehended the evidence and made an unbalanced evaluation of the evidence. The court below had no basis for rejecting the evidence of the eye witness outrightly. As to Mr. Chitabo’s submission that the Defendant’s driver gave a contradictory statement to Police, an allegation the Defendant’s driver denied, we can only say that in this appeal we are guided by the position of the motor vehicles and skid marks at the scene. For the reasons we have given we are bound to interfere with the findings of fact by the court below. We allow the appeal and enter judgment for the Defendant. The Defendant will have his costs in this court and in the court below to be agreed upon and in default to be taxed. The appeal having succeeded, it is now not necessary for us to consider the issue of contributory negligence. D. K. CHIRWA SUPREME COURT JUDGE PETER CfflTENGI SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE