Zambia Revenue Authority v Haabeka (Appeal 126 of 2000) [2002] ZMSC 138 (24 April 2002)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA Appeal No. 126/2000 (CIVIL JURISDICTION) BETWEEN: ZAMBIA REVENUE AUTHORITY Appellant AND JOSEPH MULEYA HAABEKA Respondent CORAM: Ngulube CJ, Late Chaila JS and Chibesakunda JS On 5th April 2001 and 24th April, 2002 For the appellant - Lishomwa Muuka, In-house Legal Counsel For the respondent - H. B, Mbushi, of Messrs Ndola Chambers JUDGMENT Ngulube CJ, delivered the judgment of the court. Delay herein is deeply regretted. The judgment of the court was originally to have been written by our late brother Chaila but following upon his untimely death, this may now be treated as a judgment by the majority. The respondent carried on business as a public carrier; transporting customers’ goods from one place to another within the country. This public carrier’s truck was seized by the appellants for conveying the uncustomed goods of a client picked up from Kapiri Mposhi, a place - it should be noted - which is right inside Zambia. The appellants had invoked Section 149 (b) of the Customs and Excise Act, CAP.322, which prohibits aiding and abetting smuggling of goods. In ordering the release of the truck and the payment of damages for loss of use, the learned trial judge would have none of the appellants’ argument that the Section created an offence of absolute liability. Mercifully, an initial attempt to persist with such an argument before us was abandoned so that the appeal remained one against the quantum of damages awarded for loss of use. It is now unnecessary for us to set out the Section or to dwell upon it save to stress that the learned judge was on very firm ground when he insisted that the section required mens rea - an element of guilty knowledge - so that it is not a question of blindly and indiscriminately" attaching liability to a public or any carrier who for reward or gratis agrees to carry goods which unbeknown to him are uncustomed and which are already deep within the country. If such a strange view of the law could be entertained, owners of conveyances such as vehicles would have them seized by the appellant provided they found some uncustomed goods loaded by someone when the transporter had no way of knowing that the goods » were uncustomed. The sole issue which remained for our consideration was whether or not the award of damages for loss of income from the truck was extravagant or wrong in some way. The respondent had claimed loss at KI.5 million per month but the judge considered that K500,000 per month as a compromise average figure would be more appropriate. This figure was criticized by Mr. Muuka who argued that any award for loss of business should have been backed by some relevant evidence, such as income tax returns which would have shown the kind of income he was making from the vehicle. Absent such evidence,'Mr. Muuka proposed that the matter be referred back to the Deputy Registrar for reassessment of the quantum of damages. Mr. Mbushi countered this by pointing out, among other things, that the award worked out at just over KI 6,000 (sixteen thousand Kwacha) per day which he submitted was not an unrealistic figure. We agree. As we have said in many cases in the past, while unproven special losses will generally not be entertained, nonetheless we will not interfere if a trial judge has had a go at it with an inspired or intelligent “guesstimate” whose overall result is not exaggerated. In the case at hand, it is quite reasonable to expect that a public transporter of goods can make KI 6,000 per day, if not more infact. There was simply no merit in this appeal which we dismiss, with costs to be taxed if not agreed. *1 CHIEF JUSTICE. L. P. Chibesakunda, SUPREME COURT JUDGE.