United Quarries Limited v Charity Wanjiku Oparaocha and Ors (App No. 56/2022) [2024] ZMCA 123 (25 January 2024)

IN THE COURT OF APPEAL OF ZAMBIA App No. 56/2022 HOLDEN AT LUSAKA (Civil . Jurisdiction) ~ < \ ' ~ . / /" ;_:, . ~ I BETWEEN: \ l,4'::l : 2 5 JAN 202~ . ;.t UNITED QUARRIES L~~~;~--e,c~i; ,~kELLANT - ('./::::D-~~----=· ~--'·> · ·· AND CHARITYWANJIKUOPARAOCHA 1 ST RESPONDENT OPARAOCHA ELIZABETH MUONGA 2ND RESPONDENT OPARAOCHA NKECHINYEREM WANJE 3RD RESPONDENT OPARAOCHA SHELLA NGOZI 4™ RESPONDENT OPARAOCHA NANA HUOMA 5m RESPONDENT OPARAOCHA CATHERINE MWENDI 6TH RESPONDENT PATRICIA THERESA GRAY GHUMRA 7m RESPONDENT Coram: Chashi, Makungu and Sichinga, JJA On 17th January, 2024 and 25th January, 2024 For the Appellant: No Appearance For the Respondents: Mr . . J. Katati of Messrs Dove Chambers JUDGMENT Sichinga JA, delivered the Judgment of the Court. Cases referred to: 1. Khalid Mohamed v The Attorney-General (1982) ZR 49 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1972) ZR 172 3. National Justice Compania Naviera SA v Prudential Assurance (1993) 2 Lloyd's Report 68 4. Nkhata and Others v Attorney General (1966) Z. R. 124 5. Miller v Minister of Pensions [1947] 2 ALL ER 374 6. Webster Kayi Lumbwe v The People (1986) ZR 93 7. Lupupa v The People (1977) ZR 38 8. Attorney-General v Kakoma (1975) ZR 212 9. Alfred Lwizi Sekute and 1056 Others CAZ Appeal No. 5 of 2021 10. Nobel's Explosives Co. v British Dominions General Insurance Co. {1918] 1 SLT 205 11. Nico Coultlis Transport Limited v BUKS Haulage Limited CAZ Appeal No. 65 of 2021 Other authorities referred to: 1. The Law of Evidence in Zambia: Cases and Material, John Hatchard and Muna Ndulo, 2019 2. Archbold Criminal Pleading: Evidence and Practice, John Frederick Archbold, Sweet & Maxwell 1.0 Introduction 1.1 This appeal is against a judgment of the High Court (Chawatama J) dated 29th December, 2021 pursuant to which the lower court awarded the respondents damages equal to the cost of repair to their damaged properties caused by the appellant's quarrying activities. 2.0 Background 2.1 The respondents, who were the plaintiffs in the court below, took out an action against the appellant, which was the defendant in the court below, on 9th January, 2015. In this J2 introductory part of the judgment, we shall refer to the parties by their designations in the court below. 2.2 According to the pleadings, the plaintiffs are residents of the area near where the defendant carries out its business of quarrying activities on property No. Farm 43a/K Great East Road, Lusaka. That the 1st plaintiff's house is 330 metres away from the defendant's quarrying activities. As a result of blasting of stones, her house has been damaged causing cracked walls and floors, penetrating roof and infringes on her quiet enjoyment of her property. 2.3 In 1991, the 1st plaintiff was granted an injunction restraining the defendant from quarrying owing to damage caused to her house. The defendant changed ownership in 2001. The new owners continued the quarrying activities. The plaintiffs later engaged the Zambia Environmental Management Agency (ZEMA), which conducted investigations and compiled a report confirming damage to the surrounding community. It is alleged that the defendant was ordered to put safety measures in place and to repair the affected properties. It complied with the order until 2013 when vigorous quarrying activities resumed. 2.4 Negotiations between the parties to settle their dispute did not yield any results. The 1st plaintiff's claims were for: i. Payment and I or compensation in the sum of K 1, 780,000.00 or in the alternative; ii. Rebuild new structures of the affected properties engaging professional workmen; Order of injunction; Damages; iii. iv. J3 v. vi. Further or other reliefs the court may deem fit; and Costs. 2.5 In its defence filed on 20th February, 2015, the defendant denied causing damage to the plaintiffs' properties and put the plaintiffs to strict proof. 3.0 Decision of the High Court 3.1 After the trial of the matter, the learned trial Judge found that it was not in dispute that the defendant owned a quarry business in the area where the 1st and 7 th plaintiffs live in their private homes. The learned Judge found that the defendant was liable for the damage caused to the plaintiffs' properties. 3.2 Consequently, she awarded damages to the plaintiffs for the loss occasioned to the properties. 4.0 Appeal before this Court 4.1 Dissatisfied with the decision of the lower court, the defendant appealed advancing the following grounds of appeal: i) The learned Honourable trial Judge erred in law and fact when she held that the damage to the 1st and 1th plaintiffs' properties was caused by the defendant without compelling evidence to that effect being adduced by the plaintiffs; and ii) The learned Honourable trial Judge erred in law and fact when she neglected and/or failed to consider the testimony of PW4, an expert witness who stated that the cause of the cracks damage to the 1st and 7th plaintiffs' properties was not ascertained. J4 5.0 Appellant's arguments 5.1 The appellant filed its head of argument on 11th March, 2022. 5.2 With respect to the first ground of appeal, it was submitted that the respondents failed to adduce any compelling evidence to the effect that the damage to the properties was directly and entirely caused by its acts and/ or omissions. In support of this submission, reliance was placed on the cases of Khalid Mohammed v The Attorney-General1 , and Wilson Masauso Zulu v Avondale Housing Project Limited2 , regarding the burden of proof. Reliance was also placed on the learned authors of The Law of Evidence in Zambia: Cases and Material1 where they state at page 22 that: " ... the burden of proof obliges a party to produce some evidence to enable the trier of fact acting reasonably to find the existence or non-existence of particular facts in issue ... the party is said to have the evidential burden, the burden of adducing evidence, or the burden of going forward." 5.3 It was submitted that the learned trial Judge departed from the principal of law "he who alleges must prove" when she held that the damage to the respondents' properties was caused by the appellant in the absence of the respondents' direct evidence to this effect. 5.4 With respect to ground two, it was submitted that PW4, a chemical engineer at the Zambia Environmental Management Agency testified that the cause of the cracks to JS the respondents' properties was not ascertained. That an expert witness possesses skills or knowledge which the courts may not possess. Reliance was placed on the case of National Justice Compania Naviera SA v Prudential Assurance3 on its holding that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. 5.5 Reliance was also placed on the case of Nkhata and Others v The Attorney-General4 on when an appellate court can reverse the findings of fact of a trial court. It was submitted that the learned trial Judge ignored the evidence of PW4 and heavily relied on the evidence of lay witnesses. 5.6 We were urged to uphold the appeal with costs. 6.0 Respondents' arguments 6.1 The respondents filed their heads of argument on 11th May, 2023. Mr. Katati, learned counsel for the respondents relied on the filed submissions. 6.2 In response to the first ground of appeal, it was argued that it was not in contention that on 17th March, 2012, the Mines Safety Department prepared a report which expressly stated that the 1st respondent's property was in danger of the effects of blasting, such as ground vibrations, dust, noise and flying rocks, carried by the appellant. Reliance was placed on the said report at page 108 to 112 of the record of appeal. JG 6.3 It was contended that the appellant accepted to repair the damage caused to the 1st respondent's property at a meeting held on 27th March, 2012. That the said meeting was followed up by a letter dated 31 st March, 2012. We were referred to the minutes of the meeting and the follow up letter at pages 113 and 114 of the record of appeal respectively. 6.4 The respondents contended that the 1st respondent reported an incidence to the police of a very large rock falling through her roof on 29 th December, 2014. Page 119 of the record of appeal refers. 6. 5 We were also referred to the valuation reports of the 1st and 7 th respondents' properties at pages 123 and 319 of the record of appeal respectively. That the said reports show extensive damage to the respondents' properties such as cracks on walls and floors, and damaged roofs which are not ordinarily wear and tear. It was submitted that the law on the burden of proof in a civil case was well settled. Reliance was placed on the case of Miller v Minister of Pensions5 where Lord Denning MR stated as follows: "Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of Justice if the evidence is so strong against a man as to leave only a remote possibility in his favour." 6.6 On this note, it was submitted that the respondents had proved their case on a balance of probabilities. J7 6.7 With respect to ground two, the respondents accepted that the testimony of PW4 shows that the cause of the cracks was not ascertained. However, that PW4's testimony does not conclusively show that it was not the activities of the appellant that caused the cracks either. That PW4 spoke to the pollution and environmental impacts of the appellant's activities and not the damage to the property that fallowed the blasts. 6.8 The respondents equally rely on the case of Nkhata and Others and the case of Webster Kayi Lumbwe v The People6 to the effect that an appellate court will not disturb or lightly interfere with findings of fact of a lower court, unless it is clear that the finding was erroneous. 6.9 Reliance was also placed on the learned authors of Archbold Criminal Pleading: Evidence and Practice2 where they state at paragraph 17 -76 that a court can decide not to place reliance on medical evidence or the opinion of a medical expert, if there are facts entitling it to reject or differ with the opinion. That this approach was confirmed in the case of Lupupa v The People7 . 6.10 It was submitted that on the totality of the evidence tendered at trial, the threshold to upset the findings of the lower court had not been met. We were urged to dismiss the appeal with costs. JS 7 .0 Our considerations and decision 7.1 We have carefully considered the grounds of appeal, the record of appeal and the submissions by counsel for the parties. The two grounds of appeal amount to saying that the respondents did not adduce sufficient evidence to prove that the appellant's quarrying activities resulted in the damage to the respondents' properties. We shall deal with both grounds of appeal together as they are interrelated. 7 .2 The appellant argued that the learned trial Judge found that the appellant's activities caused damage to the respondents' properties without any compelling evidence being adduced by the respondents. 7.3 The appellant has only pointed to what the 1st respondent said in cross-examination that her house was built in 197 4 and that the cracks on her house could not be attributed to its age. That there was no other evidence to prove that the appellant's quarrying activities caused the damage to the properties. 7.4 A careful perusal of the respondents' witness testimonies reveals that PW4, Wehby Simwayi, Principal Inspector at Zambia Environmental Management Agency (ZEMA) gave an account of his agency's monitoring of pollution, hazardous waste management, noise and matters related to safety in the area in dispute from around 2011. He narrated that in 2015 the appellant was served with a stop order to cease all operations due to non-compliance with issues related to safety, health and the environment. This was coupled with complaints from the neighbourhood. J9 7.5 PW4, said the stop order was partially lifted in November 2015 after the appellant met some conditions imposed in the order. However, complaints from the neighbourhood continued related to inter alia dust, noise and cracking of houses. He said he received a complaint from the 7 th respondent on 17th September, 2018 regarding her house being cracked. He said he along with other officers from the agency inspected the 7 th respondent's house and confirmed that it had cracks. PWl said he received several other similar complaints from the 1st respondent. 7.6 Under cross-examination, PW4 stated that ascertaining the cause of the cracks was not within ZEMA's mandate. He said he had referred the matter to Zambia Mines Safety Agency. Pages 460 to 468 of the record of appeal refer. 7. 7 PW 1, Catherine Mwendi Oparaocha, the 6 th respondent, narrated that she had lived in the area about 330 metres away from the appellant's operations since her parents built her family home in 1974. She recalled that the blasting by the appellant began in the 1990s and continued through various management. She remembered that the first major incident was in 2011 when a rock came through the asbestos roof of the house. She testified that the house was extensively damaged through cracks in the walls and floors to the foundation. Following a report to ZEMA in October, 2011 and February, 2012, an inspection was done on the property. Experts from the Mine and Safety Department were assembled at ZEMA's behest. This culminated in a report as shown at pages 108 to 112 of the record of appeal, JlO and to a meeting at the 1st respondent's residence at which the appellant agreed to repair all damages caused to her structures due to blasting. Page 113 of the record of appeal refers. 7.8 PWl testified that the house was repaired by the appellant following the 2012 meeting. However, the blasting continued, and on 29th December, 2014 there was an incident of a very large rock falling through the asbestos roof into the corridor. A report was made to Chelstone Police. The report is at page 119 of the record of appeal. According to the report, a police officer visited the scene and confirmed that a flying stone from the appellant's premises caused the damage. 7.9 Under cross-examination, PWl was firm in her assertion that the damage was caused by the appellant. 7.10 PW2, Charity Wanjiku Oparaocha, the 1st respondent gave a similar account as PWl. In addition, she referred to an evaluation report at page 123 to 159 of the record of appeal. At page 130 the report speaks to the damages to the 1st respondent's structures having been caused by blasting tremors over the years. 7 .11 After weighing the appellant's and respondent's evidence, the learned trial Judge held at page J 1 7 of her judgment (page 24 of the record of appeal) as follows: "I am satisfied that the plaintiffs have proved that the defendant is liable for the damage caused to the l st and 7th plaintiffs' properties." Jll 7.12 In our view, the learned Judge was entitled to make findings of fact after hearing the contrasting evidence by the parties. We are guided by the Supreme Court in the case of Attorney-General v Kakoma8 wherein the Court held that: "A court is entitled to make findings of fact where the parties advance directly conflicting stories and the court mu.st make those findings on the evidence before it, having seen and heard witnesses giving that evidence." 7 .13 It is trite law that at trial the respondents had the burden of proof. We recently addressed the burden of proof in civil matters in the case of Alfred Lwizi Sekute and l 056 Others9 where we stated at J 15 of our judgment as follows: "The emphasis in law on notions of proof and probability, is also a way of acknowledging that facts are not as concrete as they appear to be. The requirement of proof means that facts must be established to the satisfaction of the court, and this does not mean absolute certainty." 7.14 We referred to the dicta of Lord Guthrie in the case of Nobel's Explosives Co. v British Dominions General Insurance Co. 10 at page 206 where he stated as follows: "Outside the region of mathematics, proof is never anything more than probability." 7.15 It is relatively unusual for facts in a case to be conclusive. In concluding on the basis of the evidence, the court is stating no more than it is sure as it needs to be, or in a J12 technical sense, what the evidence shows on a balance of probability. 7.16 Our examination of the lower court's reasoning in her judgment that the respondents proved their case on a balance of probabilities is not farfetched after an evaluation of the evidence. 7.17 Further, her evaluation of PW4's evidence as an expert witness cannot be assailed because the witness stated in his evidence as highlighted above that it was not ZEMA's jurisdiction to ascertain who had caused the damage to the respondents' properties. 7.18 In the case of Nico Coultlis Transport Limited v BUKS Haulage Limited11 at page J45 of our judgment we stated that: "An expert witness ts one with knowledge or experience of a particular field or discipline beyond that of the layman, whose duty ts to gtve impartial optnf.on on partf.cu lar aspects of matters within his expertise which are in dispute. As a n.tle of practice an expert witness should always be qualified tn court before giving evidence. This is done by asking questions to determine expertise and failure to properly qualify an expert may result in the exclusion of his evidence." 7. 19 In the circumstances of this case, PW 4 said his du ties include licencing of environmental facilities, conducting compliance monitoring, investigations, conducting environmental impact assessment reviews. With respect to J13 ascertaining the damage caused to the respondents' properties, his agency invited the Zambia Mines Safety Agency. Page 468 of the record of appeal refers. 7 .20 In this case, the learned Judge was entitled to make a finding that the damage to the respondents' properties was caused by the appellant after hearing all the witnesses. We accept the respondents' submissions and the authorities cited. Both grounds of appeal lack merit. 8.0 Conclusion 8.1 In the net result, for reasons we have stated, this appeal lacks merit and is dismissed wi~tj>sts to the respondents. Same to be truced in default otikre./..ce. J. Cha$hi COURT OF APPEAL JUDGE ~ (A ,~ ~ C. K . . Makungu COURT OF APPEAL JUDGE / D. L. Y. Sichi j COURT OF APP J14