Attorney General v Parbhoo (SCZ Appeal 44 of 1996) [2000] ZMSC 107 (6 April 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) SCZ APPEAL NO, 44/96 BETWEEN: THE ATTORNEY GENERAL APPELLANT AND BACHOO PARBHOO RESPONDENT Coram: Bweupe, DCJ; Chaila, Chirwa, JJS 22nd April, 1998 and 6th April, 2000 For the Appellant : Mr. B. Mu in ba, State Advocate For the Respondent: Mr. R. Sirneza of Simeza Sangwa & Associates _________________________ JUDGMENT Chaila, JS, delivered the judgment of the court. The delay in delivering this judgment is greatly regretted, but this was due to circumstances beyond our control. The Attorney General, hereinafter referred to as the Appellant, has appealed against the decision of the High Court Judge (Mutale, J) in favour of Mr. Bachoo Parbhoo, hereinafter referred to as the Respondent. The learned counsel decided to rely on their heads of argument as their final submissions. The facts briefly are that the respondent’s vehicle, Toyota Hilux registration No. AAJ 7276 was damaged beyond repair on a highway between Lusaka and Kabwe by the servant of the appellant who was in charge of the Toyota Land Cruiser registration No. GRZ 289 BE. The accident took place on or about 7th November, 1991 around 09:45 hours in the forenoon when the GRZ 289 BE vehicle collided with the respondent’s motor vehicle which had stopped to give way to on-coming vehicles from the opposite direction. The collision was found to have been caused by negligence of the appellant’s servant. The respondent’s vehicle was extensively damaged to front and rear ends, - J2 - causing the chassis to collapse in the middle and became beyond economic repair and it was a write-off. The respondent further claimed damages for sustained minor cuts and bruises on the face and hands. The case took a bit of time to be heard. At first the parties asked for time to settle the matter out of court. When the matter finally took off, the appellant’s advocate was engaged in another matter and requested for the matter to wait until 10:30 hours but the learned trial Judge proceeded to hear the case and heard witness for the respondent who was the plaintiff in the lower court. At the end of the trial, the learned trial Judge awarded as damages K22 million as compensation for replacing the motor vehicle and gave K702,500.00 as loss of the use of the motor vehicle. He awarded interest at ruling commercial lending bank rate up to the date of the judgment and statutory interest rate after judgment and costs. The appellant has relied mainly on five grounds of appeal. The first two grounds deal with the Judge’s refusal to further adjourn the matter to allow the State to come and open the cross-examination and present their witnesses. The second ground is related to the first ground. The first ground is that the learned trial Judge on the last trial date in the adjourned hearing of the case erred in refusing to stand down the case to 10:30 hours and in ordering to proceed with the judgment despite a hand-written request by the appellant’s counsel that he had another commitment before another Judge at 09:00 hours in the morning of the same day. The appellant’s counsel submitted that the lower court misdirected itself in refusing the request. The appellants’ counsel argued that although the power of the court to adjourn cases is discretionary, that discretion must be exercised judicially. Mr. Kinariwala submitted that the case was scheduled to take place on 29“’ September, 1995 at 09:00 hours. As the counsel for the appellant had another case, namely receiving of the delivery of a reserved judgment by Sifanu, J, in another court at the same time, i.e. 09:00 hours, the counsel for the appellant sent a hand-written note to the presiding Judge through the presiding Judge’s Marshall requesting the court to stand - J3 - the case down to 10:30 hours. The learned trial Judge however refused to stand the case down to 10:30 hours and the counsel submitted that the court failed to exercise its discretion judicially. We would like to refer to the record at page 94 on 19lh May, 1995. The hearing of the matter took place before Mutale, J. There was no appearance on behalf of the State. Mr. Simeza appeared on behalf of the plaintiff. Mr. Simeza complained that the matter had been dragging too long at the instance of the Attorney General’s Chambers since the State Advocate had not been attending. Mr. Simeza asked the court to proceed in the absence of the State. The court agreed with the request of the plaintiffs Advocate and decided to proceed with the case. The court proposed that written submission be sent within three weeks and that judgment will be delivered after the service of submissions. On 26th July, 1995 Mr. Kinariwala, Principal State Advocate was in attendance and he made an application to arrest judgment. Mr. Simeza did not object to the application and the court decided to arrest judgment and ordered the trial to continue. The matter was adjourned to 28th and 29d' September, 1995 at 09:00 hours. On 29th September, 1995 Mr. Simeza appeared, there was no appearance again from the State. The record shows at page 96 that Mr. Simeza informed the court that he had just been talking to Mr. Kinariwala upstairs where he found him just standing and that Mr. Simeza suggested that Mr. Kinariwala should send one State Advocate to get a ruling before Sifanu, J. The court observed that it was surprised by the attitude taken by Mr. Kinariwala and submitted that he had received a hand-written note and that he wanted to personally attend the court delivering judgment but the court was surprised that from 09:00 hours to the time it sat at 09:45 hours Mr. Kinariwala had just been standing outside. The court observed that Mr. Kinariwala was using delaying tactics and was not interested in the case. The court further noted that another lawyer from the Attorney General’s Chambers could have attended to the judgment. The court further stated that it had ruled that that - J4 - was the last adjournment and that was two months ago. The court decided not to allow further adjournments and proceeded to judgment. The record clearly shows that Mr. Kinariwala for the State had been given ample opportunity to appear and present his case. We cannot find any justifiable reason why the State failed to attend, particularly after the application to arrest judgment had been granted. We agree with the sentiments by the learned trial Judge. We do not, therefore, agree with the State’s contention that the learned trial Judge failed to exercise his discretion judicially. The appeal definitely cannot succeed on this ground. The second ground is that the learned trial Judge erred in refusing to stand down the case to 10:30 hours and in ordering that he would proceed with the trial. Mr. Kinariwala argued that the principles of natural justice require that before the court proceeds to deliver its judgment, it must give an opportunity to both sides to present their case before the court. He argued that in refusing to adjourn the case, the learned trial Judge deprived the appellant their cross-examining the respondent and any other witnesses he may have presented and that the court further deprived the appellant in presenting his case by calling his witnesses and in so doing the learned trial Judge acted against the principles of natural justice. This ground is related to the first ground. We have already referred to what transpired in the lower court. The facts clearly showed that the State had been given ample opportunity to cross-examine the plaintiffs witnesses and to further present its own witnesses. The decision to proceed to trial by the learned trial Judge could not be regarded as breach of the rules of natural justice. Mr. Kinariwala had been given ample opportunity by the trial court. The appeal cannot, therefore, succeed on this ground. The third ground of appeal is on liability. This ground is that the learned trial Judge erred both in fact and in law in holding that the driver of GRZ vehicle was responsible for the accident when there was no sufficient evidence before the court in - J5 - arriving at the said finding. This ground will be conveniently dealt with the last two grounds, i.e. the fourth and fifth grounds. The fourth ground is that the learned trial Judge erred in law in awarding the sum of K22 million to the respondent as replacement value of the vehicle by way of damages. The fifth ground is that the learned trial Judge erred in law in awarding further damages in the sum of K702,500 to the respondent by way of loss of the use of the vehicle. From what we have already observed, the appellant did not adduce any evidence since he did not attend at the time the matter was closed and when they were given chance to present their case, they failed to turn up. The court however had full pleadings. There were Statement of Claim and Defence. The learned trial Judge had those documents before him and he took them into consideration in arriving at his decision on liability. The learned counsel for the appellant on liability submitted that the evidence of PW1 on the accident was totally hearsay and should have been rejected and since there was no any other evidence, the learned trial Judge should have not found the appellant liable. We have read the record and the documents which formed part of the pleadings. We have noted that PW1 was a Police Officer who made a report on the accident although he himself did not investigate the matter and produced a police report on the accident. Then there is evidence of PW2 who was in charge of the vehicle which was involved in the accident with a Government vehicle. He explained as to what transpired and how the accident occurred. We are, therefore, surprised to note that the appellant’s counsel was complaining that there was no other evidence. The record shows that there was ample evidence on which any reasonable tribunal could easily find liability on behalf of the appellant’s servant. The appeal cannot, therefore, succeed on this third ground. - J6 - Ground four deals with the award of K22 million. The appellant’s counsel has relied on the case of EASTERN COOPERATIVE UNION LIMITED Vs YAMENE TRANSPORT LIMITED, 11988-1989} Z. R. 126. This is a case where we held that where a chattel has been damaged beyond economic repair the plaintiff would be entitled to its market value as at the date of the accident. Mr. Kinariwala submitted that in this case the accident happened on 7111 November, 1991 and that the respondent would be entitled only to the market value of the vehicle as at 7th November, 1991. The counsel submitted further that the learned trial Judge went to award the market value of the vehicle as at the date of the trial or judgment; in doing so the learned trial Judge was in great error. On the award of K702,500 to the respondent by way of loss of the use of the vehicle, Mr. Kinariwala relied again on the case of EASTERN COOPERATIVE UNION LIMITED Es YAMENE TRANSPORT LIMITED, already referred to, that the problem of the period over which the amount for loss for use was resolved by the this Court in which we said: “ it has been and it is always the duty of the plaintiff to minimise his loss and where the plaintiff fails to do so, he cannot expect the court to award damages which will be limitless both as to time and extent. ” Mr. Kinariwala submitted that in view of the decision in the EASTERN COOPERATIVE UNION LIMITED Es YAMENE TRANSPORT LIMITED case, the learned trial Judge should have awarded damages for loss of use by way limiting it both as to time and extent. The counsel further submitted that the learned trial Judge awarded damages without limiting it as to time and extent. In so doing the learned trial Judge erred. The learned counsel for the respondent Mr. Simeza on the damages has vigorously argued that the learned trial Judge was on a firm ground when he awarded K22 million as replacement value of the motor vehicle and he defended the award of K22 - J7 - million. On the award of the loss of the use of the vehicle, Mr. Simeza argued that the learned trial Judge was correct and that the award should not be disturbed. We have addressed our minds to the law on the matter. We are greatly indebted to counsel for the authorities they have referred to us. Our decision in the EASTERN COOPERATIVE UNION LIMITED Vs YAMENE TRANSPORT LIMITED case was reinforced in the ABRAHAM MOHAMED AND ALANTRA TRANSPORT LIMITED Vs SAFELICHUMBU, 11993- 1994! Z. R. 4 in which this court held that: “The general rule as to the normal measure of damages for torts is the value of the chattel at the time of the loss. ” In this case the learned trial Judge awarded K22 million which was a replacement value, in other words, it was the value at the time of the trial of the matter. From the decided cases, this decision is contrary to our decision. The learned counsel for the appellant was on a firm ground when he submitted that the learned trial Judge erred in making such an award. The appeal on this ground must succeed. The award of K22 million is set aside. The evidence shows that there were quotations which were obtained and were part of the documents. The quotations were obtained immediately after the accident in 1991. The market value at that time was placed at not more than K2.6 million. The learned trial Judge should have not awarded more than K2.6 million. We therefore award this figure to the respondent. On the loss of use of the vehicle, Mr. Kinariwala has again urged this court to follow its decision in the EASTERN COOPERATIVE UNION LIMITED Vs YAMENE TRANSPORT LIMITED case. The learned trial Judge awarded K702,500. This figure was based on what was contained in the amended Statement of Claim. The figure represented the period from 8th November, 1991 to 30th September, 1992 and the loss was calculated on the bases of loss incurred to hire another vehicle in order to sustain normal business operations at the farm. The period represented roughly eleven months. In the EASTERN COOPERATIVE UNION LIMITED Vs YAMENE TRANSPORT LIMITED case, the duration and extent were discussed. In that case we laid down - J8 - principles that it’s the duty of the plaintiff to mitigate his loss. In the EASTERN COOPERATIVE UNION LIMITED Vs YAMENE TRANSPORT LIMITED case, we reduced the period to six months. In this case the loss has been extended to eleven months. This period in our view is too long. The period should have been limited to that of six months. We have allowed the appeal by the appellant against the loss calculated on the basis of eleven months. The amount, therefore, should be reduced accordingly. The figure is reduced to K383,182.00. We would like to point out that the learned trial Judge should have taken into account some salvage of the damaged vehicle. We do not however wish to take this issue further. We award a total of K2.6 million plus K383,182 which is K2,983,182. We wish to award interest on this sum from the date of the writ to the date of the judgment in the High Court at an average deposit short term interest rate and thereafter 6%. As to the costs, the appellant has succeeded in his appeal and he will therefore have the costs. B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE