Kangwa v Postal Services Corporation (SCZ Appeal 120 of 1996) [1999] ZMSC 67 (4 March 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.120/96 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: STANLEY JULIUS KANGWA Appellant and POSTAL SERVICES CORPORATION Respondent Coram: Chirwa, Muzyaraba and Lewanika JJs On 31st July, 1997 and 4th March, 1999 For the Appellant : Mr. L. P. Mwanawasa, S. C. of Mwanawasa & Co. For the Respondent: Mr. M. C. Mukonka, Legal Counsel, Postal Services Corporation JUDGMENT Chirwa, J. S. delivered the Judgment of the Court. The appellant sued the respondent for damages for personal injuries, loss of business and loss of amenities arising from a motor vehicle traffic accident that occured on 25th April, 1994 involving the appellant’s motor vehicle registration number EN 50067 and the respondent' motor vehicle registration number AAM 1292. The evidence for the appellant was by himself and two others. He testified that he owns a bedford truck registration number EN 50067 and that he uses this vehicle in transporting freight. On 25th April, 1994 he left Kapiri Mposhi around 13.00 hours in his truck with his driver Mumba Jere. He carried out 25 passengers and proceeded to go to Ndola. He sat at the rear of the truck with other passengers given room in the cab to two lady passengers. Near Blue Villa Pleasure Resort he saw a yellow truck following them and it wanted to over-take them. 2/ . . . - J2 - As the two vehicles were side by side he observed that the rear doors of the truck were open and as the yellow truck was overtaking the left door of the same hit him and he lost conciousness but regained it two minutes later on his way to hospital. He was admitted in hospital for two weeks. On his discharge, he was on a wheel chair for two months. In this accident he sustained broken pelvis and pubic bone, dislocated collar bone. As a result of this accident his social life has been affected, he cannot play golf or football which he used to play. He cannot run and also cannot sit in one position for more than an hour. Further he is unable to manage his business affairs. The second witness for the appellant was Mumba Jere the driver of his truck. He testified that on 25th April, 1994 he was on duty driving the appellant’s truck. Around 15.00 hours after passing Musangano he saw through his rear view mirror a yellow truck coming very fast. He signalled for it to over-take him. He also observed that its rear doors were open and as it was overtaking him and as it overtook him the door of this truck hit the appellant. He gave chase to this truck but did not find it. When he reached at a nearby roadblock where he was advised that the accident had already been reported and was further advised to take the appellant to the hospital. He also told the court that the appellant sustained injuries in the waist and could not sit. The third witness was Dr. Bulaya who told the court that the appellant sustained pubic bone fracture, also his pelvic bone was fractured. As a result of these injuries the appellant cannot lift heavy things, he will walk with a limp and that his libido has been affected and that this is likely to affect his marriage. For the respondent three witnesses gave evidence, the first being the driver of vehicle registration number AAM 1292. He denied been involved in an accident along the Kabwe/Ndola road on 25th April, 1994 and was surprised with the police report which said that he was involved in an accident. 3/ • • - - J3 - He said that his truck was white in colour and not yellow. The second witness was Road Traffic Officer who testified that vehicle registration number EN 5006? has never been issued with roads service licence prior to April, 1994. The third respondent’s witness was an insurance man who told the court that they insured motor vehicle registra­ tion number AAM 1292 and that they received a third party claim for compensation allegedly arising from an accident. After investigating the matter he found no evidence to prove the accident and disputed the claim. He said he inspected both vehicles and found that the rear doors of AAM 1292 were lower than the side of truck EN 5006? and it was impossible for the doors of AAm 1292 to have hit the appellant if he was inside the truck. The learned trial Commissioner after considering evidence found that the appellant had not proved his case. The identity of the vehicle that hit the appellant had to be proved on the balance of probability. He said there were many yellow vehicles plying on Zambian roads and it cannot necessarily mean that it was for the defendant. Further he doubted whether the appellant saw the alleged yelfcow truck when it was about to overtake them for if he did he could have seen the pending danger and possibly a/oided being hit. He also found that the appellant did not tell the court how he came to know the registration number of the respondents motor vehicle. As a consequence he dismissed the appellants case. In arguing the case for the appellant, Mr. Mwanawasa submitted four grounds of appeal. The first ground was that the learned Commissioner erred in finding that the appellant had not proved that the vehicle that hit him was the respondent's vehicle and his evidence and that of his driver had not been seriously challenged. 4/. . . - J4 - He argued that the appellant testified that the vehicle that hit him was a Leyland 10 ton truck yellow in colour. He was supported by his driver who testified that the vehicle that he saw was a PTC vehicle and it had its rear doors ajar. He submitted that it was too much of a coincidence that in May, 1994 the police should inspect a PTC comet vehicle whose rear doors were not closing and the respondent driver was charged with an offence of having "insecure doors." In answer to this ground of appeal, Mr. Mukonka for the respondent submitted that the learned Commissioner correctly held that the appellant had not proved on the balance of probability that the vehicle that hit him was for the respondent. He submitted that there were many yellow vehicles and these cannot all be said to belong to the respondent. Further the vehicle registration number AAM 1292 mentioned in the writ of summons and in the Statement of Claim was white as testified by DW3 and proved by the photograph taken by him and produced in court. We have considered this ground of appeal against the evidence on record. The only evidence of identity of the vehicle is by colour, make and tonnage. As against this evidence there is the evidence of DW3 that the vehicle he inspected was white and this is the vehicle that is quoted in both the writ and Statement of Claim. The learned Commissioner correctly held that not all yellow vehicles plying on the roads in Zambia are for the respondent. This holding is further strengthened by the evidence of DW3 on the colour. Further his evidence even went further that he inspected both the respondent’s and appellant’s vehicles and he found that the rear doors of the respondents vehicle were lower than the side body of the appellant’s vehicle and if this was so it was impossible for the respondent’s vehicle rear doors to hit the appellant who was inside a vehicle with higher side body. It is not for a defendant to prove his case it is for the plaintiff, in this case the appellant to prove his allegations. 5/ . . . - J5 - The fact that the colour of the vehicle and the photograph was shown to the appellant cannot go against the respondent. If there was serious dispute on the photograph, its production should have been objected to or an application made to recall the appellant to be questioned on this. On this ground of not prooerly identifying the vehicle that hit the appellant this appeal must fail and there is no need to consider other grounds of appeal. The appeal is dismissed with costs to be agreed, in default to be taxed. D . K . Chirwa SUPREME COURT JUDGE W. M. Muzyamba SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE