Zambia National Building Society v Legan Equipment Supplies Ltd (SCZ Appeal 79 of 2000) [2000] ZMSC 119 (5 September 2000)

THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) SCZ APPEAL NO. 79/2000 ZAMBIA NATIONAL BUILDING SOCIETY APPELLANT AND LEGAN EQUIPMENT SUPPLIES LIMITED RESPONDENT Coram: Sakala, Muzyamba and Lewanika JJS 6th June and 5th September 2000. For the Appellant, Mr. J. L. Kabuka of Kabuka and Company. For the Respondent, Mrs. I. M. Kunda of Kunda and Company. __________________________JUDGMENT______________________________ Sakala JS delivered the Judgment of the Court. Cases Referred to: 1. Me Gregor On Damages, IS Edition Paragraph 1378. 2. 3. Kawimbe VAttorney-General (1974) ZR 244. Winfield and Jolowicz On Tort, 13th Edition page 469. This is an appeal from an assessment of damages by the Deputy Registrar at Ndola. The salient facts of the appeal were common cause. The judgment leading to the assessment was by consent. For convenience, the appellant will be referred to as the defendant while the respondent will be referred to as the plaintiff, which they were in the court below. The basic facts cf the appeal are that the plaintiff are a limited company carrying out business on the first floor of the premises known as Mpelembe House, Ndola. They were at all the material time tenants of the defendant’s residential premises known as house number 30 Dr. Damie Street, situate at Northrise, Ndola, being the only property the defendant leased to the plaintiff on rental basis. At or about 15th November 1994, the defendant : J2: issued a warrant of distress purportedly under the law of Distress Amendment Act of 1888 against the plaintiff. The warrant was executed by a certificated bailiff purportedly to recover charges of rent in respect of the plaintiffs residential premises. It was common cause that the warrant of distress was issued without obtaining leave from a court of law. It was also common cause that there were no arrears of rent due. In pursuance of the warrant, a certificated bailiff entered the plaintiffs business premises at Mpelembe, Ndola and executed the warrant of distress by seizing the plaintiffs typewriter. The certificated bailiff only released the typewriter after the plaintiff paid a sum of K564,300,00 under protest. These facts were repeated by the plaintiff in his affidavit in support of the application for assessment. It is relevant to point out that the plaintiffs claim as endorsed on the writ of summons was for damages for tresspass and consequential loss arising as a result of an unlawful warrant of distress issued by the defendant executed by a certificated bailiff. In the statement of claim, the plaintiff claimed general damages and punitive damages in respect of the tresspass and wrongful execution and also claimed refund of the sum of K564,300.00 paid to the certificated bailiff which included the purported rent arrears and bailiff charges. The Deputy Registrar in his ruling observed that while the fact that the plaintiff was a tenant of the defendant was not in dispute, it was surprising that the defendant’s warrant of distress was effected at the defendant’s premises at Mpelembe when the tenancy is in respect of a residential plot at number 30 Dr. Damie Street, Ndola. The court found that while the warrant of distress was issued without leave of the court, there was infact no basis for issuing the same as there were no arears of rent due. TheDistrict Registrar held that this conduct aggravated the whole situation and : J3 : awarded general damages in the sum of K5m. He also awarded K2.5 million as punitive damages in order to stop landlords from interferring with their tenant’s peaceful enjoyment of the premises without justification. The court also ordered the defendant to refund the sum of K546,300.00 to the plaintiff. The defendant has appealed against these awards. Mr. Kabuka who filed written heads of argument argued grounds one and two together while the third was argued on its own. The summary of the three grounds of appeal are that, the learned Deputy Registrar misdirected himself in awarding K5million as general damages and that the same were in the circumstances inordinately high and unrealistic damages in a matter involving a typewriter and a sum ofK564,300.00 only. That the Deputy Registrar applied wrong principles of assessment by condemning the defendant to paying punitive damages of K2.5million. We heard submissions that the normal measure of damages in a warrant of distress matter is the value of goods wrongfully distrained and that where the said goods have been returned, this substantially reduced the damages to be awarded. Tills submission was rested on McGregor On Datnages(l). We heard Mr. Kabuka vehemently arguing that in the instant case only a typewriter was distrained, subsequently returned to the plaintiff with no actual damages occasioned and that the amount paid under protest was also refunded to the plaintiff. Mr. Kabuka submitted that in these circumstances, the correct measures of compensatory damages should have been a refund of the sum of K564,300.00 plus a nominal award to atone the inconvenience which the plaintiff might have suffered. We also heard submissions that the sum of K5million was inordinately : J4: high and an unrealistic measure of nominal damages. We were urged on the principle in Kawimbe VAttorney-General(2) that we should interfere with the assessment on the basis that the Deputy Registrar applied wrong principles or that the award was so high as to be utterly unreasonable. We were urged to set aside the award of K5million general damages. Reacting to these submissions based on grounds one and two of the appeal, Mrs. Kunda supported the award submitting that the learned Deputy Registrar properly directed himself by awarding K5million as general damages in the circumstances of this case. Counsel further submitted that on the facts not in dispute, the distress was wrongfully and illegally issued and executed at the wrong premises. Above all, the distress for rent was wrongful from the very start because no writ of distress existed as no rent arrears were in fact due and it is for this reason, she contended, that judgment was entered in favour of the plaintiff by consent. Mrs. Kunda further submitted that the defendant was a tresspasser ab initio in respect of the land as well as the actual goods distrained. It was Mrs. Kunda’s submission that the plaintiff was entitled to compensation in respect of the wrongful seizure of the typewriter as well as in respect of the tresspass. Above all, the plaintiff had been forced to pay a sum of K564,300 under protest. Mrs. Kunda urged us to examine the conduct of the defendant which was aggravating enough to warrant an award of substantial compensatory damages. She cited Winfield and Jolowicz On Tort(3) where tresspass is defined as an interference with possession. She also cited several cases in support of her submissions on grounds one and two of the appeal. : J5: We have considered the combined submissions on grounds one and two of the appeal. We have no hesitation in stating that the submissions on behalf of the defendant by Mr. Kabuka simplified the facts and overlooked the plaintiff s claim. The facts not in dispute raised issues of very serious concern. In the instant case, the distress was illegal. The rent was not due , no leave was obtained to execute the warrant. The warrant was executed on wrong premises altogether. These facts in our view deserve disapproval by any reasonable court. This appeal based on the combined two grounds of appeal ought to fail. The third ground of appeal seems to us to be more of a complaint against awarding K2.5m as a separate head of punitive damages. We heard very detailed submissions in relation to the principle of assessment governing punitive or exemplary damages. Mr. Kabuka conceeds that punitive or compensatory damages can be awarded but that the award in the instant appeal was not justified. We were referred to several authorities. The gist of the complaint seems to us to be that punitive or exemplary damages should not be awarded under separate head but must instead be packaged into the amount of compensatory damages which was not the case in the instant appeal. Mr. Kabuka submitted that the Deputy Registrar’s approach was wrong in principle and the punitive aamages should be set aside. We are satisfied that there is nothing unlawful in awarding punitive or exemplary damages separate from the award of compensatory damages. While in practice, one figure has always been awarded, what is relevant is whether the defendant’s conduct warranted the award. In the instant case, we are satisfied that the defendant acted in contumelious disregard of the plaintiffs right in the illegal execution of the warrant of : J6 : distress in contravention of the Rent Act which requires leave of the court to be obtained before a warrant of distress is issued for rent arrears. In the instant case, no rent arrears were actually due. The defendant’s conduct was in our view outrageous to merit an award of punitive damages. We wish only to add that illegality must never be encouraged by any court of law. This appeal is dismissed with costs to be taxed in default of agreement. E. L. Sakala, SUPREME COURT JUDGE, W. M. Muzyamba, D. M. Lewanika, SUPREME COURT JUDGE. SUPREME COURT JUDGE.