Zesco Limited v Evans Musonda Chongo (APPEAL NO. 131 OF 2005) [2006] ZMSC 68 (6 June 2006)

IN THE SUPRE1\1E COURT OF ZAMBIA APPEAL NO. 131 OF 2005 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ZESCO LIMITED APPELLANT AND EVANS MUSONDA CHONGO RESPONDENT CORAM: SAKALA, CJ., CHlTENGI AND MUSHABATI, JJS On i 11 March and 6th June, 2006 For the Appellant: Mr. W. Chilundu, Senior Legal Officer For the Respondent: Mr. L. Moono, ofNkana Chambers JUDGMENT Sakala, CJ., delivered the judgment of the Court. Cases referred to: 1. Swarp Spinning Mills -vs- Sebastain Chileshe and 30 Others SCZ I Judgment No. 6 of 2002 Kafue District Council -vs- James Chipulu (1995-97) ZR 190 Attorney General -vs- D. G. Mpundu (1984) ZR 16 Miyanda -vs- Attorney General (1985) ZR 185 2. 3. 4. " This is an appeal against the quantum of damages in which, among several other awards, the Deputy Registrar awarded a sum of Kl4,000,000 for mental distress to the Respondent and another sum of Kl,100,000 for the hire of two deep freezers. The brief facts of the case, which were not in dispute, were · that the Respondent had entered into an agreement with the Appellant that the Appellant would be deducting electricity bill charges from his account. The agreement was called Direct Debit and Credit. The Appellant used to deduct the sum of Kl60,000 from the Respondent's bank account with Standard Chartered Bank. On 5th to 6th February, 2004, the Appellant .disconnected power supply from the Respondent's house. It was common cause that at the time of the disconnection of the power to the Respondent's house, the Respondent, who had been involved in the preparations of a wedding and traditional marriage counseling, had hired two deep freezers at Kl,100,000 to refrigerate food supplies which were to be used at the wedding ceremony. It was also common cause that visitors had camped at his home when the Appellant disconnected the electricity . • The Respondent sued the Appellant claiming damages, among others, for illegal disconnection of electricity supply to his house; costs of the food which went bad when power supply was disconnected; hired transport costs incurred during that night to buy take away foods for the people at home; hired transport costs incurred during that night· in an effort made to pursue the reconnection by the Appellant which proved futile; costs for unplanned take away food bought from the Restaurant for the invited friends and families; costs for the hiring of the two deep freezers and damages for breach of contract, inconvenience and mental distress as a result of the cancellation of the ceremony. The Respondent obtained an interlocutory judgment in default of appearance and defence. The damages were to .be assessed by the Deputy Registrar. Subsequently, the Respondent issued summons for ass.essment of damages. The summons was supported by a detailed affidavit in which a number CJ of claims and sums of money lost were made. At the hearing of the summons for assessment, both parties adduced oral evidence. In his oral evidence on the hiring of the two deep freezers, the Respondent testified that he hired two deep freezers at Kl,100,000; that the amount included transport that he also hired; and that the deep freezers, which were hired, did not serve the intended purpose because of • the disruption of power from 5th to 6th February 2004. He wanted the Appellant to refund the amount ofKl,100,000. In relation to the claim for damages for breach of contract, inconvenience and mental distress, he testified. that being the house of a bridegroom, which was in darkness, he suffered shock. The inconvenience he suffered extended. to being treated as a person who seemed not to be serious both by his relatives and even the taxi driver who ended up quarrelling with him as he asked for a lot of money, that he protested to the taxi driver but he ended up being further embarrassed as people came out to intervene and it appeared as though he was a very irresponsible person because of the events arising from the power disconnection. He testified that he was claiming K20,000,00Q for mental distress and inconvenience that he suffered. He based the claim on the value of the ,wedding that was cancelled. (J On behalf of the Appellant, the evidence was that there was no agreement or arrangement that was entered with the Respondent that power supply would not be disconnected . • The learned Deputy Registrar considered the evidence and the submissions on behalf of the parties. In dealing with the claim ofKl,100,000 for the hiring of the two deep freezers, the learned Deputy Registrar pointed out that the evidence of the Respondent was that since the power was disconnected, he paid.for the two deep freezers which never performed and the Appellant did not oppose this claim. The Court found that since there was no electricity, it was a fact that the deep freezers did not work. The Court thereafter awarded a suni ofKl.100,000. On the claim of K20,000,000 for mental distress, the Court found that this was a proper case for awarding damages for mental distre_ss. The Court relied on the case of Swarp Spinning Mills -vs- Sebastain Chileshe and 30 Others (I) l in which it was and the case of Kafue District Council -vs- James ·Chipulu < stated that: "it is now settled that the Court can give damages for the mental upset and distress caused by the Defendant's conduct in breach of contract", Q and that: "damages for mental distress in contract are a matter of policy ' limited to certain class of cases where the contract which has been broken was itself a contract to provide a peace of mind or freedom from distress." According to the Deputy Registrar; the Appellant did not seem to have opposed the claim of K20,000,000 but contended that it was on the higher side. The Court then made a comparison that in the present case, the Respondent was making preparations for a wedding and traditional marriage counseling coupled with a big number of visitors camped at his home when the Defendant disconnected the electricity. The Court found that the action of the Appellant was an extreme cause of mental distress on the same footing of torture as the Respondent had been at pains to explain to the visitors and make alternative arrangement for eating and lighting while counselors and family members hipped their anxiety and worries on the Respondent to explain what was happening and whether the ceremony was going to succeed. The Court found that the amount of K.20,000,000 claimed was a little higher and instead awarded a sum of Kl 4,000,000. The Appellant has appealed against the two awards on two grounds that the award of K14,000,000 for mental distress was not supported in law or fact and was in any case excessive in the circumstances of this case; and that the learned r Deputy Registrar misdirected himself when he awarded Kl,100,000 for hire of two deep freezers when the Respondent actually used the freezers for the purpose they were intended for . • ' Both Counsels filed written heads of argument based on the two grounds, augmented by brief oral arguments. The gist of the written arguments on ground one was that the Deputy Registrar misdirected himself by finding that this was a proper case for awarding damages for mental distress because the Respondent was himself in breach of the contract of supply by not paying for his bills; and that the award of Kl4 million was not supported in law. In his brief oral submissions, Mr. Chilundu pointed out that the Respondent was disconnected at 1530 hours on 5th February, 2004 and reconnected the following day at 0900 hours. He submitted that in the circumstances, an award ofK14 million Kwacha was too excessive. On ground two, the summary of the arguments was that the Deputy Registrar misdirected himself by ignoring the fact that . some of the food was . bought on 4th February 2004; and that the fact that the Deputy Registrar ruled that food could not have gone bad for the period it was in the freezers, indicated that the freezers were used for the purpose they were intended for. It was submitted that the Respondent should not have been awarded the sum for hire of the freezers. . , The short written arguments in response on ground one were that the claim for mental distress is supported by law and that in the instant case mental distress and inconvenience were specifically pleaded. The case of Attorney General V. D. G. Mpundu < 3l and the case ofMiyanda V. Attorney General < 4lwere cited in support of the awards for mental distress. It was pointed out that in the instant case, the Respondent was making preparations for his wedding when the Appellant disconnected power from his flat. He suffered mental distress and Q inconvenience in that the family members and the community at large treated him as a person who seemed not serious and not responsible. The gist of the response on ground two was that the claim of Kl,100,000 for the hire of the two deep freezers was not disputed .. We have considered the evidence on record; the judgment of the trial Q Court; and the submissions by both learned Counsel. As we pointed out in the case of Kafue District Council, "there is now a chain of authorities to support the award of damages for mental distress and inconvenience." However, this award must be proved and supported by evidence. Indeed, the duration of the distress and inconvenience should not be overlooked. In the instant case, we accept that the disconnection of power supply to the Respondent's house from • 1530 hours on 5th February to 0900 hours the following day caused him mental distress and inconvenience bearing in mind that he was preparing for a wedding. But we take note that the distress and the inconvenience was however a matter of some hours and less than a day. In awarding the damages for mental distress and inconvenience, the Deputy Registrar observed that the claim was not opposed but that it was contested as being on the higher side. Thus, the Court found that the claim of K.20,000,000 was a little higher and awarded a sum of Kl4,000,000 Q instead. The issue was not that the claim was not opposed, but whether it was proved. In the circumstances of this case and bearing in mind the awards made in previous cases, we consider that the award of Kl4,000,000 to be excessive. In the circumstances, we set aside that award. In its place, we award a sum of K 4,000,000. Ground one, therefore, succeeds to that .extent. On the claim ofKl,100,000 for the hire of the two freezers, the Court again Q found that the claim was not opposed. The Court, however, found that since there was no electricity, the freezers did not work and awarded Kl,100,000. We take note that this amount was the actual cost of hiring the deep freezers. We have already observed that the disconnection lasted for less than a day. It is therefore not correct that the freezers were not used for the intended purpose. The Court, therefore, misdirected itself to make an award for the hire of the freezers. We set • aside the award for the hire of the two deep freezers. Ground two of the appeal succeeds. In the result, the appeal is allowed as indicated. We make no order as to costs. Each party will bear its own costs . ....... ~ ............ . E. L. SAKALA CHIEF JUSTICE '--'..--. HI NGI SUPREME COURT JUDGE C. S. MUSHABATI SUPREME COURT JUDGE 0 •