Bridget Mtonga (Suing as Administrator for the late Ellen Banda) v Zambia Wildlife Authority (ZAWA) (APPEAL NO. 171/2022) [2024] ZMCA 245 (21 June 2024)

l . IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 171/2022 HOLDEN AT LUSAKA (Civil J u risdiction) BET WEEN: BRIDGET MTONGA APPELLANT (Suing as Administrator for the Late Ellen Banda) AND ZAMBIA WILDLIFE AUTHORITY (ZAWA) RESPONDENT CORAM: KONDOLO SC, MAJULA, BANDA-BOBO JJA On: 23rd May and 21s t June, 2024 For the Appellant: Mr. R. Malipenga Messrs Robson Malipenga & Company For the Respondent: Ms. N. K. Chango - Principal State Advocate & Mrs. B. M. Kamuwanga - Senior State Advocate of the Attorney Generals Chambers JUDGMENT KONDOLO SC JA, delivered the Judgm en t of th e Court . CASES REFERRED TO : 1. Attorney General v George Mwanza & Another (in his capacity as personal representative of the late Monica Mwanza) (2017) Vol 2 434 ZR 2 . Konkola Copper Mines Plc, Zambia State Insurance Corporation Ltd v John Mubanga Kapaya (of the late J2 of 19 Geoffrey Chibale) and 8 other Administrators (2004) ZR 3. Paul Roland Harrison v The Attorney General (1993) SJ 4. Times Newspaper Zambia Limited v Lee Chisulo ( 1984) ZR83 5. Betty Kalunga (Administrator) v Konkola Copper Mines Pie SCZ / 5 / 2004 6. London Passenger Transport v Upson [1949] UKHL J1209-1 7. Attorney General v D. G. Mpundu 8. Andrew Tony Mutale v Crushed Stone Sales Ltd (1994) SJ 98 SC 9. Zambia State Insurance Corporation And Zambia Consolidated Copper Mines Ltd v Andrew Mushili (Administrator of the Estate of the Late Nelson) ( 1988- 1989) ZR 149 10. Mhango v Ngulube & Others (1983) ZR 61, 66 11. Vincent Hingandu v Lynda Mataka CAZ/ 144/20 12. CR Holdings Limited v Mary Musonda CAZ Appeal/ 71/2019 13. Lochgelly and Coal Co Ltd v McMullan (1934) AC 1 HL 14. PatrickDickson Ngulube v Robson Malipenga SCZ Judgment No. 3 of 2015 LEGISLATION REFERRED TO 1. Zambia Wildlife Authority Act S. I. No. 12 of 1998 (The Act) J3 of 19 2. The Fatal Accidents Act 1846 3. The Law Reform (Miscellaneous Provisions) Act, Chapter 74, Laws of Zambia 4. https: //www.exchange-rates.org/ exchange-rate history/ usd-zmw-2022 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Hon. Mrs. Justice S. Kunda Newa delivered on 11 th March, 2022. 2.0 BACKGROUND 2.1 In the High Court, the Appellant was the Plaintiff and the Respondent was the Defendant. 2.2 The Appellant is the administrator of the estate of the late Ellen Banda who was on 26t h June, 2011 trampled to death by elephants which got away from a game park in Mambwe district. 3.0 PLAINTIFF'S CASE 3.1 The deceased's estate took out an action for negligence against the Zambia Wildlife Authority (ZAWA) claiming the following relief; J4 of 19 i. The sum of Kl,000,000 for loss of life of the deceased. ii. Sponsorship of the deceased's children up to university. iii. An Order for the Defendant to pay medical bills for the disabled. iv. Any other re lief that the Court may deem fit. v. Costs. 3.2 The Statement of claim indicated that the deceased was a single mother of 6 children and bread winner of the family. Four of the children were under her care. 3. 3 That one of the children was a school child and another aged 26 was mentally disabled and required medical attention. 3. 4 That the deceased was attacked and killed on the spot by two elephants on her way back home from her field. 3.5 That the Accident occurred on account of ZAWA negligently failing to discharge its duty under the Zambia Wildlife Authority Act S. I. No. 12 of 1998 (The Act) to protect and manage wildlife. JS of 19 4.0 DEFENCE 4 .1 The Respondent denied the claims and averred that the deceased was killed in a Game Management Area (GMA) which is occupied by humans and animals alike. 4.2 That ZAWA was under no obligation to closely monitor and follow animals that cross from the National Park into the GMA and humans who have settled in the G MA's are aware of human-wildlife conflicts and are required to exercise care as they go about activities in the GMA. 5.0 HIGH COURT JUDGMENT 5.1 The learned trial Judge found that the Respondent owed the deceased a duty of care to ensure that she was not at risk of harm from wildlife that co-exists with residents in the GMA and at page J23 (page 30 of the record of a ppeal) held as follows, "The evidence does not in any way establish that the deceased was in an area where she was not supposed to be, and by the elephant attacking her and stepping on her, resulting in her death, the Defendant failed to exercise its duty of care to the deceased, and is liable in negligence." J6 of 19 5.2 The learned trial J u dge considered the claim for loss of expectation of life and cited th e case of Attorney General v George Mwanza & Another (in his capacity as personal representative of the late Monica Mwanza) 111 wh ere the Supreme Court stated th at damages for loss of exp ectation of life sh ould be m oderate, taking into account the value of the Kwacha and inflationary tren ds . 5.3 The lower Court noted that 18 years earlier in the case of Konkola Copper Mines Pie, Zambia State Insurance Corporation Ltd v John Mubanga Kapaya (of the late Geoffrey Chibale) and 8 other Administrators 121 damages for loss of life were awarded at KS,000 . The learned trial J udge noted th at the cited case was decided 18 years earlier and after taking the effect of inflation into account, sh e awarded the sum of K20,000 as damages for loss of expectation of life with interest at the rate of 6% per annum from the date on which the writ was issu ed u ntil payment. 5.4 Th e lower Cou rt inferred th at th e claim for sp onsorship of the deceased's children u p to university was actu ally a claim for damages for dependency. It was noted that oth er than allegin g th at th e deceased was .a bread winner of the family, J7 of 19 there was no pleading in relation to the deceased's earnings or the means by which she earned a living. The learned trial Judge dismissed the claim for dependency because there was no information upon which it could be assessed. 5.5 The learned trial Judge did not address the claim for medical bills for the disabled. 5 .6 APPEAL 5.7 Dissatisfied with the Judgment, the Appellant h as appealed advancing two grounds as follows; 1. The lower Court misdirected itself in fact and law when it awarded damages at K20,000 to the Appellant for loss of life. 2. The lower Court misdirected itself in fact and law when it held that the Appellant did not provide evidence to support the fact that the deceased was the bread winner to the children she left behind whom she was looking after. 5.8 Appellant's Arguments 5.9 In ground 1, the Appellant reproduced, almost verbatim the trial Court's citation and presentation of the case of Attorney General v George Mwanza & Another (in his capacity as JS of 19 personal representative of the late Monica Mwanza) supra and also cited the much earlier case of Paul Roland Harrison v The Attorney General l3l where the Supreme Court held as follows, '7n this case, the seriousness of the case should have been taken into account in awarding damages . . . . . . having taken into account the High inflation that has taken place since the earlier awards, this must be reflected in later awards." 5.10 On the basis of the cited authorities it was submitted that the sum of K20,000. Awarded by the lower Court was far too low as it did not reflect the current cost of living and the seriousness of the case where the deceased suffered a gruesome death on account of the Respondent's negligence. 5.11 The Appellant encouraged us to interfere with the awarded sum on the strength of the decision in the case of Times Newspaper Zambia Limited v Lee Chisulo !4l where it was stated that an Appellate Court will not interfere with an assessment of damages unless the lower Court had misapprehended the facts or misapplied the law or where the damages are so high or so low as to be an entirely erroneous estimate of the damages to which the Plaintiff is properly entitled. 5.12 The Appellant's further argument in ground 1, was that the J9 of 19 trial Judge only awarded damages for loss of expectation of life and not for the negligence itself. It was submitted that the negligence arose from the breach of a statutory duty imposed on the Respondent by the Act and after finding that the Respondent had breached its duty under the Act, the trial Judge should have awarded the Appellant general damages for the breach. The following cases were cited in support of this submission; Betty Kalunga (Administrator) v Konkola Copper Mines 15l; London Passenger Transport v Upson 16l; Attorney General v D. G Mpundu 17l; Andrew Tony Mutale v Crushed Stone Sales Ltd 18l; Konkola Copper Mines Pie, Zambia State Insurance Corporation Ltd v John Mubanga Kapaya (of Late Geoffrey Chibale) and 8 Other Administrators supra. 5.13 It was on this basis submitted that the sum of K20,000 awarded to the Appellant for loss of expectation of life should be enhanced. 5.14 Ground 2 5.15 It was submitted 1n ground 2 that there was sufficient evidence on record showing that the deceased was a single , I" " JlO of 19 parent, bread winner and sole provider for her family. The Appellant cited the case of Zambia State Insurance Corporation and Zambia Consolidated Copper Mines Ltd v Andrew Mushili (Administrator of the Estate of the Late Nelson) (9 l with emphasis on where the Court said as follows ; "Dependents are entitled to the recovery of loss of pecuniary benefit (which may be actual or prospective) from the relationship which would be derivedfrom the continuance of life and which may consist of money, prosperity or services; the value of dependency". 5.16 It was stated that despite not having been specifically pleaded, the issu es raised in ground 2 were for loss of dependency and brought under the Fatal Accidents Act of 1846. 5.17 It was submitted that the Appellant was unable to provide the exact quantum figure of money earned by the deceased on a monthly basis because she lived in a rural area. That she was engaged in farming and other unknown activities whose income was not documented. 5.18 It was opined that the lower Court ought to have taken judicial notice of the way people live in rural areas in Zambia Jll of 19 and not placed a heavy burden of proof on the Appellant instead of applying the civil law standard of proof on a balance of probabilities. 5.19 The Appellant pointed out that PWl testified that all of the deceased's children were dependent on her and that PWl 's evidence was not rebutted. 5 .20 In further support of this argument, the Appellant cited several cases on the value of housewives which we shall not regurgitate for reasons that will become clear. 6.0 RESPONDENT'S ARGUMENTS 6.1 In response to ground 1, the Respondent submitted that it was settled law that damages for loss of expectation of life must be moderate. In support this , they cited the case of The Attorney General v George Mwanza Case supra where the Supreme Court cited the Konkola Copper Mines Case supra. 6.2 It was submitted that there was therefore no basis upon which to interfere with the trial Court's assessment of damages . The case of Times Newspaper Zambia Limited v Lee Chisulo supra was cited on the undesirability of appellate Courts interfering with an assessment of damages except where the Court had misapprehended the facts or " " \• ~ J12 of 19 misapplied the law or where an entirely erroneous estimate of damages was m ade. 6 .3 In r espon se to grou nd 2, t h e gist of th e respon se is th at h e who claims damages must prove the damage and loss and this must be done by produ cing evidence. The case of Mhango v Ngulube & Others (lOl was cited to that effect. 6.4 The Responden t further cited the case of Andrew Tony Mutale v Crushed Stone Sales Limited supra where the Su preme Court stated th at; "There is need for satisfactory proof to be provided before special damages are awarded." 6 .5 It was prayed that the appeal be dismissed. 7.0 HEARING 7 . 1 At t h e hearing both parties r elied on th eir respective heads of argument. 7.2 The Ap pellant au gmented by reemphasizing that t h e award of K20 ,000 in damages was inadequate considering that t h e deceased, a mother of 6 was killed by an elephant on her way from t h e field. 7 . 3 We were asked to consider that even villagers have economic value. ..:: 8 .0 ANALYSIS AND DECISION J13 of 19 8.1 We have considered the record of appeal and the arguments advanced by the parties and shall deal with the grounds in the order set out in t h e memorandum of appeal. 8.2 With r egard to ground 1, we addressed the law pertaining to claims for damages for loss of expectation of life and loss of dependency in the case of Vincent Hingandu v Lynda Mataka (l l l in which the Appellant had appealed against t h e sum of Kl S,000 awarded by the Registrar for loss of expectation of life. We took the opportunity to explain t h at damages for loss of expectation of life must be awarded under the Law Reform (Miscellaneous Provisions) Act whils t damages involving loss of dependency are awarded under the Fatal Accidents Act. 8 .3 In the cited case, we recalled that in the year 2020 we heard and decided the case of CR Holdings Limited v Mary Musonda 112i in which we considered that when the award was assessed by the lower Court, the exchange rate was at USD 1 to K20. We noted that was about five (5) times more than it was when the Supreme Court awarded the sum of \it , ,, ) KS,000 in the Konkola Copper Mines v John Mubanga Case supra in 2004. J14 of 19 8.4 As a consequence, we found that the sums of K200,000 and K l 00,000 awarded by the Deputy Registrar for loss of expectation of life were inordinately high and we reduced the awards to K25,000. 8.5 In the Vincent Hingandu Case supra we applied similar considerations and established that in the year 2019, when the award of K15,000 was assessed for each deceased person, the United States dollar (USD) was trading at 1 USD to K13 and on that basis, we found that the awards of KlS,000 were appropriate and not in any way excessive or outrageous and they were accordingly awarded. 8.6 In Casu, we have established that on 11 th March, 2022, when the learned trial Judge awarded the sum of K20,000, the exchange .rate was USDl to Kl8. In the CR Ho ldings Case supra the exchange rate was USDl to K20 and we awarded the sum of K25,000. We therefore accept the trial Judge's award ofK20 ,000 herein as being reasonable in view of the exchange rate of USD 1 to K 18 when she made t h e award. This argument is therefore dismissed. J15 of 19 8.7 We have also considered the argument that the lower Court did not award damages for negligence. 8.8 In order to establish a claim for negligence, the claimant must show that a duty of care existed and that there was a breach of that duty. When considering the claim for negligence, the learned trial Judge found that the Act imposed a statutory duty of care on the Appellant to protect people residing in the GMA from wild animals. She then found that the Respondent had been negligent by allowing the elephants to escape from the National Park into the GMA where they trampled the deceased to death. 8. 9 The claim before the trial Court was for negligence and the statement of claim at page 39 of the record of appeal shows that the breach of the statutory duty imposed by the Act was listed in the particulars of the alleged negligence. 8.10 The elements of the tort of negligence were stated by Lord Wright in, Lochgelly and Coal Co Ltd v McMullan 1131 as being, i) the existence of a duty of care owed by the defendant to the claimant; ii) a breach of that duty; \ - I 1• I J16 of 19 iii) damage or injury caused by that breach of duty. 8.11 Each element must be proved and compensation or damages arising from the breach of duty are generally only payable where there has been damage or injury. Damages in negligence are not assessed on the mere fact that there has been a breach of duty. 8.12 However, where a party clearly shows a breach of a duty of care such as a statutory duty owed to it, but fails to prove damage or injury, such a party could be paid nominal damages purely on account of the breach. 8.13 In casu, however, the breach of duty resulted in injury and death and that can be the only basis for damages . The claim for general damages claimed by the Appellant 1s misconceived and the question of nominal damages does not arise. The only damages due to the Appellant are those that are proved. Ground 1 therefore fails in its entirety. 8. 14 This brings us to ground 2 and the question of dependency where the Appellant has asked us to take judicial notice that it is difficult to obtain figures relating to income and expenditure with respect to individuals who live in rural areas. , __ J17 of 19 8.15 We can do no such thing as there is no published data on the Appellant's assertion. Quite to the contrary, we think that people in rural areas know exactly how much money they earn, the nature of their monthly food and domestic requirements and what they spend on other expenses such as school fees. In our view, the Appellant should have provided an estimate of the Deceased's income. 8.16 What we see here, was a total and complete failure to provide the lower Court with sufficient material upon which to assess dependency. The only claims for dependency are for «sponsorship of the deceased's children up to university" and for «An order for the Defendant to pay medical bills for the disabled" 8.17 With regard to the claim for education, no proof was presented as to which school the children attend, how much it costs to keep them in school and how the educational expenditure was met. 8.18 With regard to the claim for medical bills, no medical report was submitted. Further, no information was provided such as to which clinic or hospital the child attends, how much it costs and who pays the said medical bills. J18 of 19 8 .19 It appears that the Appellant adopted the approach that all that was required was to simply testify that the deceased had left six children who were her dependents because she was a single mother and sole provider. 8.20 The case of Patrick Dickson Ngulube v Robson Malipenga 141 demonstrated that in order to do justice, the Court ' sometimes fills in the gaps for litigants who take a casual approach to litigation. In so doing, Cou rts make intelligent and inspired guesses on insufficient evidence before them. However, the general rule of assessment of damages is that evidence of loss must be given and intelligent guesses are generally discouraged except where circumstances demand. 8 .21 In casu, there were no gaps to fill in because nothing whatsoever was presented by way of material to help the lower Court make an intelligent guess. We have said time and again that claimants have a duty to provide the Court with sufficient material upon which to make a decision and parties who fail to do so, place themselves at peril. 8.22 The elements that must be proved in a claim for dependency have been explained in a plethora of case law and it all begins with an appreciation of the deceased's income l \ . J19 of 19 followed by an assessment of personal expenditure and on each dependent followed by an estimate of how long the deceased might h ave been expected to live. The Appellant did not address any of these and we agree with the trial Judge that there was no material upon which the dependents of the deceased could claim damages for dependency, which was capable of being assessed. 8.23 We consequently dismiss this appeal in its entirety with costs for the app eal being awarded to the Respondent. .••.•..•.............•................ = M. M. KONDOLO SC COURT OF APPEAL JUDGE ·····~ r ········ .......... ,.~ ............. . B. M. MAJULA A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE \ \C OF 2 IP. I 0 ~ <\ PP[ 50067 . \.: