Attorney General v Samuel Matipa (APPEAL NO. 42 OF 1986) [1988] ZMSC 89 (3 September 1988)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 42 OF 1986 HOLDEN AT LUSAKA (Civil Jurisdiction) THE ATTORNEY-GENERAL APPELLANT and SAMUEL MATIPA RESPONDENT Coram: Ngulube, D. C. J., Gardner and Sakala, JJ. S. 9th April, and 3rd September, 1987 For the Appellant B. L. Goel, Senior State Advocate For the Respondent B. B. Kaweche and Company JUDGMENT Ngulube, D. C. J., delivered the judgment of the court. Case referred to: (1) Times Newspapers Zambia Limited -vs- Kapwepwe (1973) ZR 292 For convenience we will refer tp the appellant, and through him to the state, as the defendants and to the respondent as the plaintiff, which is what they were in the action. This is an appeal by the defendants and a cross-appeal by the plaintiff in the circumstances hereinafter described. By his writ, the plaintiff claimed against the defendants damages and consequential loss caused to him by the defendant's alleged wrongful entry onto his farm wherefrom the defendant~• contractors carted gravel for the construction of the Ndola1Kitwe dual carriageway. The plaintiff's _ claim included a j)rayer for damages f9r trespas.s to his land as a consequence of such alleged wrongf_u.1 __ en__try. - The defe_ric~ c?n__sfs_!ed _a_lmost ___ _ entirely of general denials. It was common ground that, in the course of_ the construction of the dual carriageway, the contractors entered-upon the plaintiff's land for the purpose of carting gravel and that in the process they not only destroyed a staff house, an electric cable and a water pump pipe (altogether valued at K5,563) but also created a large unsightly crater, 6, hectare in extent, on the plaintiff's land rendering that portion of the farm unproductive. At the trial, a consent judgment was entered in favour of the plaintiff for damages to be 2/ ••••••••••••• assessed - J2 - assessed by the district registrar. The learned district registrar heard evidence and awarded the special damages of K5,563. There is no app appeal against this part of the award. The learned district registrar properly declined to award any special damages which were claimed by the plaintiff in respect of the cost of constructing a replacement of the plaintiff's bar and grocery which were not damaged and which have oot had to be relocated. There has been no appeal in this regard. The learned district registrar also declined to award the plaintiff the value ~~~ of __ gr-av_eL-taken_away_nor_the-value_of-1 anct_ and-p!"emises-now-fol"ming-th"'---- qua rry. He did not award any general damages for the trespass as such and for consequential losses. The foregoing are some of the complaints raised by the plaintiff in his cross-appeal. The learned district registrar determined that, in accordance with the case authorities which he cited, the plaintiff was entitled to receive compensation by way of damages based on the dimunition in the value of the farm. However, since the court found that there was no cogent expert evidence on which to base such an award, the damages could not be,computed and consequently none were awarded on that ground. What the learned district registrar did do, instead, was to make a gratuitous award of what was stated to be punitive damages in the sum, of K8,000 for alleged infringement of the plaintiff's constitutional rights in that, although what the defendants did was in the public interest, they deserved to be "severely punished" for infriging the plaintiff's fundamental rights. Tile defendants' appeal is against this award. It should be noted, in the first place, that, as we see it, the defendants could have, under the relevant section ofthe Roads and Road Traffic Act, Cap. 766, lawfully entered and taken gravel, subject only to the question of compensation: See Section 40. Their only error {and we can think of no other ground for the admission of or attaching liability in trespass) was that they did not comply witl1 section 40 (2) which required them to consult the plaintiff who was entitled to select for them a ,sit<i! for the quarry which would be_ more acceptable or les5- inconve- - --- ~--- --- --- --- -n ient -t-o him,- more-espec i aHy-th-at--the def-endants expected to-take-gravel--~ . - - - - ae they did-from an area exceeding one acre as envisaged in section 40 • -- - - It was -tlius oniji on the -grOund of Tai I ure to -e£erci se -the statutory rights and powers in proper conformity with, and compliance of, the law that tee defendants became alleged trespassers. For clarity, we should also repeat - -that- even where the· law-has·treen-followed; the Roads ·and Road-traffic Acr - - - - contemplates the payment of compensation in respect of, inter alia, disturbance and damage to unexhausted improvements: See section 40(4) 3/ ............ and - J3 - and (5). We have no difficulty in allowing the defendant's appeal against the award of punitive or exemplary damages in the sum of K8,000, which award we set aside. By the same tol<en, we reject the plaintiff's counter-argument in the cross-appeal that such damages should in fact be increased because of alleged infringements of Articles 18 and 19 of the Constitution (which prohibit unlawful deprivation of property and unauthorised entry on land, respectively). As already observed, the aefenaantscoulahave Iawfill1YTai<en -ffiegravel, and not been liable in trespass, had they observed the requirement of prior consultation with the plaintiff. But punitive or exemplarly damages must be specially_ pleaded, which was not the case here: See Order 18/8/3 RSC. plaintiff had pleaded them, he would still not have been entitled to them unless he established that the case fell within the principles for the award of such damages, as discussed in such cases as Times Newspaper Zambia Ltd -vs- Kapwepwe (1), which principles it is here unnecessary to repeat. The actions of the defendants in this case, which were admittedly and obviously in the public interest and which were in purported exercise of rights and powers otherwise lawfully available to them, could not properly be described as arbitrary or in contumelious disregard or in any other of the adverse descriptions attracting the award of punitive damages. The defendants appeal had to succeed and it is allowed. We now turn to the cross-appeal. If the On behalf of the plaintiff, Mr. Kaweche's first ground in the cross appeal complained that the learned district registrar should have made an award of general damages for the trespass in addition to the special damages which were given. Mr. Goel's reaction to this ground of appeal was to ask for a retrial of the whole of the action. He submitted that, by virtue of certain enactments, and in particular the third convenant in the third part ofthe schedule to the Land (Conversion to Titles) Act, Cap. 289, the defendants, as state and absolute landlord, have an over- riding right to enter at-any time,-with er without- notice, .and to take minBral s-arrd- that ,-a ccordtngly-,---the-con sent·· j udgment-w a s-pe r-incurlam-o r ------ per i_nfortu_nium~ We have given careful consideration ·~o t_he oppost[lg -- submissions and, in our-considered view, whatever the rights which are allegedly conferred by the Mines and Minerals Act, Cap. 329, and the Land (Conversion of Titles) Act, Cap. 289 - which Mr. Goel, relies upon - they are not contradictory to but complementary with the other provisions, such as section 40 of the Roads and Road Traffic Act, Cap. 766. follows, therefore, that even if other laws give the defendants the rights It 4/ .•....... -.•. of () - J4 - of absolute ownership, entry and carting gravel or taking minerals contended for by Mr. Goel, such rights have to be exercised in a certain way, namely, in this case, as prescribed by the Roads and Road Traffic Act. The argument that the consent judgment was by mistake does not arise __ and -is in¥alid. Mr. Goel also argued that, by virtue of the exceptions thereunder, the constitutional Articles already mentioned authorise a derogation from the rights conferred. He relies on the exceptions at Article 18(2) -- --- ____ __,o)-and-(x)-rn connection w!trf;-am6ng other-filings, -rignts to minerals - - - and Article 19(2)(a) and (c) in connection with, among other things, entry on land for public purposes beneficial to the community. He submits that there was no breach ofthe plaintiff's constitutional rights and therefore no trespass even from this viewpoint. The short answer to this argument is, in our view, that there is a breach where the other laws referred to in the exceptions, and which are relied upon, have not been complied with so as to bring the defendant!' actions within the exceptions under the constitutional provisions. ~le have already said that under section 40 of the Roads and Road Traffic Att, it is lawful for the defendants to take gravel but only after prior consultations The failure to comply with that requirement was what rendered the entry and the operation a trespass; other11i se, the plaintiff would have been expected to apply for compensation and arbitration, if necessary, in the manner envisaged by the Roads and Road Traffic Act. While we agree with Mr. Kaweche that damages are payable for trespass, we also agree with the learned district registrar that the more reasonable and normal measure of damages, in a case with such facts as obtaine~leere, is the dimunition in value and not the cost of restoration-although, as the discussions in the textbooks such as Clerk and Lindsell on Torts Show, sometimes these may coincide. Under general damages, the plaintiff asked for, among other things, the value of the gravel itself which he estimated to be K75,000. There can be no _ ques_tion of the defendants pay.ing for the gravel as such. For ooe thing, - -- - -the--propert-y-1 n--the-grave1--was--vested-1n-the def endants-and-ther·cou 1 d -- - - - -- In any case the normal measure, as already noted, does not extend to have lawfully taken it._ No such award can b~ made and we refuse to ma_ke it. the price or commercial value of the soil carried away. The plaintiff __ asso_c1_ske9 f_or__l(5_(),000_ ~s ti~ 1/alue of the land now_f_QrmJng_tb~~quar.ry. __ Subject to what we. shall say in a moment about unexhausted improvements, this claim once again cannot be entertained since that was not the dimunition in value of the plaintiff's farm. The plaintiff, further - 5/ ••••••••••••• tendered - J5 - In this regard, we note that the defendants' obligation to back tendered evidence that it would cost appro11:imately 1<155,000 to backfi 11 the pit. fill only arises under the Act where there is the danger of mosquitoes breeding. The plaintiff neither pleaded nor proved any such danger or the cost or necessity-of-back-filling-sufficiently to obviate-the danger-. Instead he spoke of the quarry as having become a breeding ground for criminals. The learned district registrar was not in error when he disallowed all the foregoing. As to the damages t'or'•tf'espass, these must be, in this case, on the basis, to begin with, that there was physical damage to the land and developl!dnts. There was actual damage to a staff house, a cable and a pump pipe totalling 1<5,563 which has already been awarded in the court below and against which there has been no appeal. Admittedly, these were in the nature of special and actual damages and are not the additional damages which the plaintiff contends ought to have been, and should now be, awarded. As already stated, the normal measure would be the dimunition in value. There was no direct evidence on the point other than a general indication that the defendants have left a substantial cnater which has rendered that part ofthe plaintiff's farm unproductive. \·/hat the value of the farm was before and what it is after the damage remains unkown. Tl1e learned district registrar could not, nor can we, assess the dimunition in value. It was for the plaintiff to adduce such evidence. However, there was evidence which gave an indication ofthe value of the direct loss of improvements suffered in relation to the portion of tl1e farm which iw now a quarry and which ought to have been awarded as damages in place ofthe claim for K50,000 for which there was no basis. The defendants' own witness, DW2, a professional valuation surveyor, gave evidence to the effect that he had assessed the value of the affected unexhausted improvements at 1<5,000 which he had proposed be paid to the plaintiff as compensation. This figure was inclusive of a sum of K2,000 offered in respect of the damaged staff house in relation to which the learned ~ist.ri_ct _ registr_ar a_ccepted, an~ awarded separately, t~e ___________ pla.i ntiff_l_s_J1igber flgure_of_ K!i,0O0. ___ The_balance_oLthe__defence offer_, _____ _ according to DW2, consisted of other improvements, such as the clearing - ·of land. We are of the opinion-that the plaintiff should-receive, as additional damages, K3,000 for the lost unexhausted improvements on the affected portion of the land which he had cleared, and which for that - - - ---- ----- - - -- -l"eason must be- regarded-as-having had the potential- for agl"icultural use.- Although Mr. Goel argued that the evidence was that the plaintiff had not actually used tl1at portion for farming, we are here concerned not with 6/ ..•••..•.••••.. the - J6 - the loss of farming but with the loss of the improvements as opposed to any consequential losses to whicl1 we now turn our attention. A plaintiff in trespass is also entitled to damages for losses if he can show that he has suffered any as a direct result of the defendant's -- tortious- activTt,Y. -we agree enfi rely wifn Mr: Raweche wflen he argued the In this regard obvious that damages for consequential losses are payable. we note that the reason for not making any award was that the learned district registrar found the proof lacking. The losses contended for in ----------~n1s appeaT were -lossof-use ana loss orbusiness. The statement of claim relied upon as raising a claim for loss of business alleged a loss of business in the bar and grocery. No evidence was led to establish such loss and we agree with the district registrar that a court cannot be expected to speoulate. The plaintiff also claimed the losses which we mentioned and which ~iere referred to in a report prepared by PW1 who was an architect called to testify on behalf oftbee plaintiff. ·This witness made a report in which he gave an estimate of loss of income suffered by the plaintiff, namely, distnrbance to farming about K1,000 per annum and loss of use of land affected at K1,550 per annum. The learned district registrar rule~ that he could not rely upon the architect's evidence on these matters since he was not an expert "valuer". It is quite clear that the plaintiff relied on PH1 as being Although PW1 was cross-examined as to his qualifications no comment was made by the learned district registrar that he intended to disregard the valuation evidence of this witness because of his lack of qualifica tions. qualified to give an expert opinion as to the value of disturbance to farming and loss of use of the !add. It is not stated but presumably the witness was paid a fee for his expert service and there is no doubt that he had held himself out to the plaintiff as being qualified to give the evidence which he gave, We must take judicial notice of the fact thtt there are not many qualified land surveyors in Zambia and it is our view that if a person otherwise of repute holds himself out as an expert in _ ---=-=-:-- _-----: tile v aluatlon eL farml r.g-land ~there ~no r!!awn~ ~ t~ abseoce -of ---evi den ce -of his ·incompetence,to· doubt_ hi s-ab1-uty-to- make-a-fa:rr-- - In this case, withoit warning, the district regis1rar rejected va luation. --- ---- some of the evidence put forward in this case with the result that there is an apparent lacuna in the plaintiff's case. In the circumstances of this case the learned district registrar should have told the plaintiff's --- - - - - -- - --counseI-·-that the··evidence of--hiS-witness wou1d-not-be·-accepted--in-·or·der-- --- -- - for counsel to argue the merits of the rejection or otherwise and, if necessary, to call alternative evidence. As it is, the court's 7/ ••••••••••••• examination - J7 - examination of PW1, although revealing a lack of specific professional qualifications, does not in any way indicate that the witness, an architect and presumably a man of integrity, was falsely holding himself out to be qualified to give such evidence when he was in fact incompetent. - - - - - - - - -W - i - ' · t~l¼HUGH~*nce of i~mi:iet~ne~e valua~io~&y-tlri~H.11ess:---- should have been accepted. In the result the damages awarded to the plaintiff should haee included a sum of K1,000 per annum for disturbance to his farming -------------- ---ac-tlvities-ancl K1,550 per annum for fciss of use of the land. In our view a realistice period should be taken into account in order to afford the plaintiff just compensation. We therefore award two years' compensation on this basis making the total under this heae K5,100. In sum, the appeal is allowed and the punitive damages set aside; the cross-appeal is allowed only to the extent that we have awarded the additional K8, 100. own costs. In view of this result, each side will bear their M. M. s. w. NgOiliube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUSTICE --- - - ------- - E.-L.-Sakala - -- - -- SUPREME COURT JUDGE - -