Attorney General v Kapandula (SCZ Judgment 13 of 1988) [1988] ZMSC 76 (1 September 1988)

IN THE SUPREME COURT OF ZAMBIA SCZ JUDGMENT NO- 13 OF 1988 (96^ HOLDEN AT LUSAKA ' ‘" ^Appeal Not*36 of 1986 -^ff - <> ■ , . '-v • ■J 'h / .ft m dv’.rg;; >.f yj^ (Civil Jurisdiction) /•' ' ' ; to tgc ■. .y . THE ATTORNEY-GENERAL Appellant • h = J .-. He porict rxk possession or W; /. and . j?, . ;>y-they wra KATWISHI KAPANDULA : /Respondent CORAM: „;Ngulube, D. COJ„, Chomba and Gardner,-JJ. S. - ■■■ ■ A; / - . th-*t *•••• •? ilM I".- e 19th) February , 1987 and 1st September :i-V <M„E<Mwaba, Senior State Advocate ,:;forj^%)®PPey^^^ 'P.ci -Zului Messrs Zulu and Company,1-for the respondent KSOU .fo: ^'; /■''X■;. ■]■■..i 'yi'-./ X. / ■; V i'i. ." ■ f , . . - " J U ,D. G . M E N,T is to end Gardner, J. S/ delivered the judgment of the, county, > hz/ilUy but wr;h .only1--' - =■.:'•< Case Referred To: <—r—----—---------- ; \ ‘ ■; ■ 4,» , # .. "E-/ ■ u: c:;/<s t.t^t Vr? > < Sh<!‘ 0/ the / ... •; ’(1); ‘ Mafo -v- Adams (1970)'IqJb 548 r pirir,?;. ;■•■ ■ b? th; v/iu/,. ■ apj/iTifibf': ■ ; ? 5.. -='■ cost /f thb hbntir# Hcct'e This is an appeal from a judgment of the High Court awarding damages for the‘loss of:game meat. ■ i sp;?c.<:X/'■':/■ ;<?;•• ■. • • ' ■ ■.%, in claims for - nt: r7 Qr. jwtfepij^dont evidence should be ■ - :t In this judgment we will refer to ti|e appellant .as, the defendant and bthe;respondent as the plaintiff respectively. . ». the The facts of the case were that the plaintiff was in possession of a hunting licence, and, in or about July and August.1984,.shot an eland.and a harteboost which he was entitled to do under the terms of. his licence. Because he had transport difficulties the plaintiff returned,from Mumbwa district, where he had been hunting, to Lusaka,, and he.left three^of his. companions ip charge of the game meat, which resulted from the hunting. 2/ .while's ^(97) while he went to Lusaka to arrange for transport.'’ While the plaintiff was \ away, the police arrested the persons who h^d been left in charge of the meat, and, although they were shown the‘> hunting licence belonging'to the plaintiff, they wrongly formed the opinion that more game had,,been shot than was permitted under the licence, yTHe police took possession'of the game neat and apparently sold it by auction. In any event they, were ’t/ ' unable to return it to the plaintiff, the rightful owner, when h%demanded In his judgment the learned trial judge found that the meat had been wrongly detained by the police, and he awarded damages-jn-the sw K4., 00,0.00 for the value of the meat, K300, in respect, of;athree journeys , made by the plaintiff from Lusaka to Mumbwa and return, and K300 for the inccpvenience caused to the plaintiff. . ; : .<!-.& . ... ..... ? .. v.y ' ■ ■ ■ ; . g- • /t The defendant appealed against the judgment both as to liability and quantum. However, before this court, Mr. Mwaba, on behalf of the defendant, indicated that.he was not pursuing the appeal against liability but wished only to argue, the-question of quantum. His first argument was that the ;■>. K4,0C0 awarded in respect of the meat from the two animals shot by the plaintiffi was; excesss and that no evidence had been led’by^the,^ p. plaintiff ;to support his own estimate of the, value.inHef said,^n^ learrdd appropriate award should be no more than the cost of.the hunting licence. . p; Inui' ■ in" ■ _• support this part of the This court has on occasions indicated: that,hinjclaiins^ special damages, either documentary or independent?evidence.'should bed .1 I ’ •, • • •: ■ / called in support. By this we mean that, if money is actually paid out ‘ ' t p i J . V * f V' * • r ’ * by the plaintiff, evidence of such payment should be; placed before the court, and in other cases evidence from someone familiar with the-cost ofj/hatever is claimed should be available.r, In.this'case there wasiof; course* no documentary evidence or other evidence-to indicate the precise value of the moat wrongly detained and disposed of by the police, and the plaintiff’s advocates saw fit to rely on-the evidence of the plaintiff cif s alone to support the estimate of the valued of the lost meat. In taking this " ■ • ' • , 3/.... V.;..course’: . iG if; J . course the plaintiff's advocates took the risk that the learned trial judge might say that he was not satisfied with the evidence of the plaintiff alone, however, as there can be no other evidence to support this part of the claim except an estimate of the value, the‘learned trial judge was entitled to rely.on the unchallenged evidence-of the plaintiff if it was accepted that he was telling the truth. In>the event, that is precisely ” what the learned'trial judge did and there was no impropriety for which the learned trial judge's judgment in this respect should bo sot aside. This ground of appeal therefore fails. • P . Vi. SP ii,- S nf; • ' ' : ; •• ; pi With regard to the costs of transport, about which the plaintiff ! gave evidence, that he had made three return trips from Lusaka to Mumbwa; - at a cost of K50„00 each way, Mr. Mwaba argued that here again'there should have been documentary evidence of the cost of the’transport and that in i any event at least one of the trips would have been incurred)by the -‘plaintiff regardless of the loss of the meat. Mr. Zulu on‘behalf'of th&P plaintiff argued that the plaintiff's evidence as<to:the cost of th#' ifr i \ '^transport had hot been challenged in cross-'examination and, therefore,'’^ •• * s •, * that evidence should be accepted. to find -v:. ’P-P > !>“• • ;• 5 Me cannot imagine any grsss ; v /kp rctur'i :.;s '■ 1! This is a case where documentary evidence as to how much,wad paid for 'the transport could have been obtained by the‘plaintiff, and the learned -trial judge would have been entitled to indicate that the evidence'of the ■ plaintiff alone was insufficient to support this part‘of the claim.'?.- - ^Howeveih as a layman might well not have realised the importance'’of .; ‘ ^obtaining format receipts for'What were in ith’O .nature of< ordinary\taxi fares;;thc learned trial judge was entitled>td-accept the plaintiff's , ‘^statement as to what he had'paid. In thercourseJof his- evidencezthe f.<‘ ■plaintiff said'that he had hired transport at-the stated ^ateuf.^^ “fLusaka"to MumbWa to hunt and we agree with Hr. Mwaba that theicost of <<the trip to.tabwa to hunt and return to CUsaka would- havefbecn incurred : by the plaintiff in any event. This ground of?appeal therefore succeeds as to the cost, of one return trip, that is K100, and the damages Under this head should bo reduced to K200. J. t •iStfr 'n •i'/'-V • . ... ■■ - •.* ■ • ■' \ ■ <’ .-C'-i W-) the {q J 4/........... Mr. Mwbba^- Mr. Mwaba's third ground of appeal related to the damages for inconvenience, and he argued that no damages should have been awarded under this head., Mr. Zulu, although he supported the award, said that he knew of no authority to justify an award under this head. •■■■ v V^-’ ; . . •IV ' . ■ i '• ■ ■* The learned author of Mcgregor On Damages (14th Edition) at I . * • e paragraph 61, in discussing this subject indicates that the expression. "damages for inconvenience" is not generally found in tort, although damages have been expressly awarded under this head in deceit^ false imprisonment and nuisance. Of these thfee'; 'examples the' cases cited ' indicate that the torts themselves were the direct cause of the inconvenience alleged. In the case of Mafo -v- Adams (1) whore damages were awarded for deceit, the deceit itself caused the plaintiffto make^ad^unnecessary journey, and, in the other two examples, it is obvious that false imprisonment itself causes inconvenience add so does nuisance. In the case at present before us the inconvenience which we presume was the,subject1 of the damages awarded by the learned trial judge was that the plaintiff , had to make two unnecessary journeys from Lusaka to Mumbwa and,return in order to f indout what had happened to his meat. We cannot imagine any cases of detinue whore the plaintiff would not have made at least,one wasted attempt, to recover his good's and there must be numerous ;,such cases where such wasted attempts involve substantial journeys.;villainages for inconvenience in tort were never intended to cover the inconvenience of efforts made, in vain, by unsatisfied-plaintiffs to obtain what is rightfully due. to them. The examples cited in Mcgregor are exceptional and relate only to cases where the torts themselves arc the immediate , cause of the inconvenience suffered in specific cases. It is not intended / that such damages should be awarded to every litigant who suffers the inconvenience of having to pursue his claim. We agree with Mr. Mwaba that there was no justification for the award of K300 damages for inconvenience in this case and this ground of appeal therefore succeeds. This appeal is allowed and the award in favour of the plaintiff is set aside. In itsfplace we substitute an award of K4,000 for the value of the • lost meat and K200 the cost of two return journeys. : J5 ■ : (100) a; .y; i '■ • ; . < '•' -■ ‘ •/' this appeal will be the defendant/appeliant's. . ii6i-indent ■ '. ' ■ '.^W> ■ • '. ... ,V v.v lV? • ' ''st 3s;>V. • , ' Z . • r • ■tlA Ti“? dr)W?* ‘ ' . .... . u M. S. Ngulube ‘ /"DEPUTY CHIEF JUSTICE J ? E £ *1 r f 7 • ................ ?C TFZ M™Chombaw * & this SUPREME COURT JUDGE.. .. ' •. •■ . ■; Z'^7 • .. • B. T. Gardner SUPREME COURT JUDGE ‘I x; a of life f^li'Cour't awarding > -. J’•1 ‘Ar..-;?" to tntv. ApiMliantjaJ < iff r i\ icdy. ' ■ ' ? - > b •Z r / >k?ly and’JUKjust 1984r-shot an eiehtl and Z tiiat •' . pWntifi in possessive of a ?• •;ntitled to dn mtw th«-tcr»s of his nctnge>: •■■■ hfieuUi££ .t!\^ pisintitf,returned Trow s^^hwa ••IF’ ' ■ > - ’ ••; U'C 6-aw; sMt, which resulted fr&u the feinting, ;. ’? -anti he left thnf& of h/s: ■ 7.1......... .whi 10