Clement Simuyembe v ZESCO Limited (APPEAL NO. 10/2016; CAZ/8/023/2016) [2017] ZMCA 481 (17 January 2017)

, ~ ; Ir~ :- ~. · ' J • . :,.,,.~~~;,..r·_. ~'. . _,J _r ~- j '- :.:/~~~~ . ~- . _r ~- ,/ ~ . - ~ _r L/ . .:.,;t·~ ... ~~- . ~ - .· - j ... . · . · .·~ . , IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) ' • • • • • • • I , ' I '-;;v ~ .. . ·,.;·~-="t~- - ~ I ~. Y j - ?,IF - . . . · · . - j _r : ::::..,. . ~ . . ->~~~~--~. · ..... :;:~~ . - APP¢A,L NO. 10/:2016 . CAZ/8/023/2016 BETWEEN: CLEMENT SIMUYEMBE APPELLANT AND ZESCO LIMITED RESPONDENT CORAM : Makungu, Sichinga and Kondolo SC, JJA on 17th January, 2017 and For the Appellant For the Respondent: Ms. N. Sikazwe Chief Legal Officer : In Person - -~ONDOLO SC, J~ delivered th~4:udgment of the __ . C_o.u""'-rt~- - - - -- - Cases referred to: - -~~._Attorney_~r~l v Pet~_;Q,iva~a Ndhlq_,v~~9~6) z.. R.-~"""-- 2. Nkhata a_nd others v ·Attorney General (1966) Z. R. 124 Legislation referred to : 1. The Electricity Act, Chapter 433 of the Laws of Zambia The Appellant has appealed against part of the Judgment of the ' ' ' High Court in which the High Court found that the property on s i. i . · ·which th~- Appellant had statloned his car ~ashing b{isine~s was located on land that was reserved for a wayleave b y the Respondent. The surrounding facts of this case are that on 30 th January, 2008, the Appellant was allocated a piece of land by the Lusaka City Council (LCC) on which he was permitted to set up a car washing business on certain terms and conditions. The Appellant was then provided with electricity by the Respondent after paying a capital contribution of ZMW2,405 . . .>-. _j/,._ . ->-. .>- . . _j/,._. .. ,. -- On 10th ~ece ·mb er, 20~3, the Respondent ·wrote to notify the ,;:; 'I}{ -,:-.__: :· ·- . ~-:, '}[ .• ~ ..-; :· .:;.;_-:, 'I}{ - -:'¾-: : ,:;::,.,}{: ·• ~~: : . . . - - .:_-:,,~ -• ""'..-: . .,,.. - Appellant that the car wash had encroached on a ZESCO power line - - -way- lea.v.g_an-El-h-e---wa-s--askecl-ttr-ciemo-lis-lrur-s-hift-his-s-tructure within 14 days. On 3 rd April 2014, the Respondent notified the - .rP'--Appellan t..--tliTfti:hey v.:pulcl :~fl'iin _4 ~ _ho1::IT.~aiscon:o.ect :-p~er to . his . . . - - - structure and either demolish it or move it from the way leave. The Appellant made good on its threat and cut power to the premises and demolished the Respondents structure. ... , .. :,.~ -:~ :· - ---- .... .. - ' , .. ~-,..- ;-;..,--...... - ...... ,. t ·\::;..;:: : ·- ~-:.,__ r-_ The Appellant ·commenced proceedings 1.n the High Co.urt . against the Respondent claiming the numerous categories of damages which included m ental stress and inconvenience, loss of business , unlawful destruction and loss of property and a refund of the capital contribution of ZMW2 ,405. The Appellant testified during the trial but did not call any other witnesses. He testified that following the receipt of the letters from the Respondent a meeting was convened where he was assured by a Mr. Chisanga that the demolition of the structure would not occur but despite such . assuran~·s ~he structuJte was demoli~ed . .. He also -~ ted that he ->-. ,. :::-=c~ .• -~ - ~ -::.~ ... ~ .. ~ ... - was surp~ised that only his cm-wash was\iemolish·2 ·1recause the;e~ -~~ · ~ ,; a-~ -•~..-: :·· ·- ~ . . ~ .¥ :-:. :· . ~ ¥ :-:. - .-· was another one opposite his which was not demolished. In cross examination he claimed that h e obtained planning - :~ ~~perm~~_sicm :rlf"Cfm . L~~~c;r- :effo/ Co1-!.11cil ~~C) ·bef gre -~nf'mencing. construction and that the Council was the planning authority. He claimed that the land had no plot number and he also denied giving the Respondent the address which appeared on the quotation for supply of power and on a receipt for payment for power. ., =:; . ~.=• DWl, Kennedy · Mwansa Chisanga testified . that the Respondent . initially erected temporary structures and was given temporary power supply and warned not to build permanent structures under the wayleave. He told the court that notices were issued to the Appellant after it was discovered that contrary to the permit given to him by the LCC, he had constructed permanent structures under the wayleave. He said that the Appellant only demolished the structures 6 months after the Respondent failed to comply with the third notice requesting him to move or demolish them. When cross examin@a.·, DW2 ~ .:;:=c~:;: --:,-.__: : testi~.ed ~ -~~ ·::'5- . - . ~ .;:=,~ -~-:. :: _ _ that peop\e are allowesl_ - to operate ~-. ~ -:~ •. ,;:=,~ , .. ~;,;;: : .• ~..__-:. :· temporary structures under a wayleave and the ~espondent's .,. - electricity meter was initially installed on a steel bar but the - - -- pi=obJ.g.m-ar-gsg.-wn-en-fle-bui-:l+-permanen-t-stru-ctur; court that wayleaves were pieces of land reserved for use by the Respondent to install electrical infrastructure and that they needed to be kept clear for the safety of the people who operated under the line . In cross examination h e said that he 'd only joined the Respondent company· in 2011 and was thus unaware if the ·Respondents inspectors. had in:spected the Respondents premises before power was connected. After considering the evidence, the trial Court found as a fact that the address 1246/46/ 1 Mosi-oa-Tunya Road Woodlands' found on the quotation and the capital contribution receipts were provided to the Respondent by the Appellant. The trial court also found as a fact that the Appellants car wash was built on the Respondents wayleave. The court also held the view that the planning permission issued .l-Y the council .~as irregular bji_eause tl?,e ColJ(lcil could not.>-· . ~ .:_:, :· ,...~..-:. .• ~ ,:::. ,-,::: -,~~ ....-:. :. ~ -~-=-:,).:.-: .• ~ ..-;_ :·· ~ :;,._:. 'I).; .. ~ ... :· ~ ,::..-=.-...-;;. -·~~ : ·give sbni'eone planning p ermission in tife wayreave witnourin-volving .,,-- the Respondent and that in any event, the Appellant did not provide - - -~any--deeB.men-tary-evidence--to-that-effe-c . . -~~he trial e-e>:trft"" ... said j:he :A.~11an ts _ credtbi'.lity was_ .taintecfby · the. -· obvious lie he told when he claimed that the address, '1246 / 46 / 1 Mosi-oa-Tunya Road Woodlands ', on the quotation and the capital contribution receipts was inserted by the Respondent. The court believed the evidence of DW 1 who testified that there were no permanent structures when the premises were inspected and that >:,,?:r~::r~ • ~'. • ., the ·~lectricity meter-was 'connected-to ~ ';teel bar. Cons~quently the - ' ' .· \ - ·- . , i . i. Court found · that the only structure that was on the property was the pole and the structures demolished were built later and without the approval of the Respondent. The trial Court also found that the Appellant received all the notices issued by the Respondent. The trial Court agreed with the submissions by learned counsel for the Respondent that according to Section 18 of the Electricity Act it was not mandatory for the Respondent to seek the Minister's ~-approval befc_µ:_e demolishin~_ · a structure ]l_elieved to h~e been . JI ~ .::_;;. ~ .• :"'-:,~-:_ :· · . ~ ;; .. ~~ .• :"'>;,-.;_ : · . ~ ,:::"",i; ·:.~ -.:._:·· ~ :~~~ ~~ ·.: - .. ~illegalfy or irre"gularly- constructed- on a wayleave. Tlie Courtrurther ~ c~"~ -.c~..-.;_ : · held that the Appellant, having received all the notices, had - - -~...,-uffis-i-e-nt-ftet-iee-t-e--reet-ify-the----mi-schierco-rrrplainea.<5115utne d1dn' . the demolition of his structures was not illegal because he unlawfully built his structure in the wayleave and ignored the notices that were issued to him. The trial Court, however, granted the Appellants claim for a refund of the ZMW2,405 capital contribution and awarded him interest on the said amount . ,. ~ ·······- · <•◄ _,, ............... .,..,. .. ' ..... - A , . . •• •• • - i . , - • - .. ~ •• ~~-:~;~ • ••: •; ; ;~ ~. - ~~ '- -.. :' - • - : ~ - ~ ;,_..:: ~~~•:--,►:•.;_:• •~ • •_~ ~ . : ~ • --;-:~~ ·, -. _ _.-. - • ~ ... "-A- • • • • ~ • • : • - • ~ : - ; : : - • • ( . . The Appellant was dissatisfied with the Judgment of the Court below and filed a Notice of Appeal and a Memorandum of Appeal in which he advanced six grounds of Appeal namely: 1. That the trial Court misdirected itself both in law and fact when it held that the Appellant did not have lawful permission to operate a car wash along Mosi-oa-Tunya road in Woodlands when there was documentary evidence on record to show that such permission was granted to the Appellant way back in 2007 and was being renewed ~ ~ on ?~Jr~ ~asis ~ -~=r~ --- ..,-- - -~ - - -• '""'--< _ · >· -~-=- ~ -,..~ -: : ..,-- - >· .:;:=.~ . .___~-~ :: _ __ - ~ -~~ 2. The Trial Court misdirected itself both in law and in fact when it proceeded to hold that the AP--nellant_mis_dire.cte.d ____ _ or misrepresented the Respondent to connect and install po\Y'er at the car wash in 2012 by inserting a wrong P,. . ~ ~s€'ftrice a_ddre~"""on tl!e Re~ndent's a1>pli~ation.. -for~~~ when no documentary evidence was adduced by the Respondent to rebut the testimony of the Appellant that the service address on the form, being plot 1246/46/ 1, was not provided by the Appellant. 3. The Trial Court erred in law and in fact when it held that the Appellant did not suffer any damages arising from '.: . · .. -,:.. : :::;._"'"":-:-.: -~ ··• .. i . ........ h ··· _,_ , .... .. ,, ._.,,. __ _.,,,_ " ... _ ,,, J -::-,.,..._ • ~ .__: ;,_ ~ : - : : -~ : ·-: ·::-- . - ... ·~ .... ...... . ..... _ ..... - . . ·••· , . . the ·actions of the Resp~ndent ~hen it demolished the structure yet the evidence on record shows that the Respondent had inspected the car wash premises in 2012 and following that inspection and having been satisfied, the Respondent supplied power to the premises, only to turn around two years later to claim that the car wash was under its wayleave and demolished the structures. 4 . The Court below erred in law and in fact when it proceeded to hold that the Respondent supplied power to the car wash to a single pole and not to a structure without the Court making an inference to the fact that --.>. · the R>spondent COPlpany cannot.>,and does ·nQ>_ · install -1~~ -,::-'5 : - - .. powef':io ~re poi~ ·Sot to st;u"ctu.~.: - - ,:=a.,i; ~-'5 : 5. The Court below erred in law and in fact when it - - - - - - -pr-oceeded- to--hol-d--t-hat- -t-he-structure-s-thar-we-r-e- erectetl at the car wash were permanent structures when no expert evidence was adduced that effect that to rebut the ,. IP:- -'.evidence---of fli'e Appellant'that th'e . stfuctifres at tne car . ,-P_;,,,..,. . ~ - ,. IP._;,,-- · - -~""'-' wash were temporal structures in accordance with the permission to operate a car wash granted by the Lusaka City Council. 6. The Court below erred in law and in fact when it glossed over the . Appellant's evidence to the effect that . the Respondent's actions were malicious when it demolished .... .... ,._ _ • ... ... •• • •s .~w ; '" " . -• • .._ _. ..,_ ,-. • .~ .,..._, ......... +. , .,.• ....... <••• , -•• -..,:,.,- •f~ ·-. . :.. .. ~ :. . ~; '-_i,i-..... : f.:; ·::-~ c... ·::·,,::.. -.~·........ • ~: •• ....ib,t-· . -,~ ....... ·· ":.:·<:-·:. ...... .,; • .. :~,,. .. ~~-f"-:•· the Appellant's car wash, leaving, M. K. Top car wash and Chifundo Market w h ich are equally in the -same vicinity with the Appellant's car wash and are still operating. The Appellant also filed written submissions 1n support of all his grounds of appeal. Ground One challenge s the trial courts finding that the permission granted by the LCC was irregularly issued . The Appellant submitted tha t the court ignore d the documentary evidence he provided ->-· p ermitting- hµn. to ope~ate a~_ar wash at thc1>_location and -t).e courts_ -:~~ ., ; -· ~ :. .,,-- -finding was tnerefore based on assumption~ He further submitted ~ -~-:, ,,; ~ :'\a_,,._ : . ~ ; ::~. ~ -~~~ . . ~ -:":~ -·~5 : . ~ ,~"',,; --~-:. : -- that the council was authorized to allocate land and give planning - - -pe-Fm-i-s-sien--an-cl--if--th-e·--Respondent-h:ad-a--pn:ml-e-ITT-wttn7he planning permission granted by the council that was a matter between the _ c_q-µncil -~11 the_ Resp~ent _aJJ.d shofilct~ not aff ecr :nffr'i_~ He urge? :p1P' the Court to interfer e with this finding of fact because the trial Court had ignored critical pieces of evidence and he cited the cases of the Attorney General v Peter Mvaka Ndhlovu 1 in which the 1 Attorney Gene ral v Pete r M vaka Ndhl ovu (1986) Z. R. 12 . <t:~~~r~'. ~~•- ,_; ·cou±-'t , citing the case of Nkhata a~d Others ·v Attorney General2 , commented on the basis upon which an appellate Court can interfere with a trial Judge 's findings of fact. In the cited case the court held as fallows; "By this grou nds of appeal the Appellant, in substance attacks certain of the learned trial judge's findings of fact. A trial judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the Appellate Court; -~-;~ -~ -~-a ) By reasonjN)f s ome non--"'1misdire,;:tion Ar otherwise the :· :: - - - ' judge errea in accepting th~ ·-evidenc~ which he did ~ ,:-=o~ -~~ :· ~ ,;=.~ --::~ :· - ~ .:.:.::a.,,; ~~ ~ .::;;_"J? -• ~ . accept; or ----------cb)---l-n--assessing·--and--evaf.1rati1ry-the-- eviaerice ~ne Jildge has taken into account some matter which he ought __ ,.p-,.,.... . not t-o :-1fltve, tals-en -~in'fff,.,.account, -:o;rfc1.1.led to- taicGFf;;to account some matter which he ought to have taken into account; or c) It mistakenly appears from the evidence itself, or from the unsatisfactory reasons given by the judge for Nkh at a and oth ers v Attorn ey General (1966 ) Z. R, 124 '~;1~> ~ ~-- <?;~--:~~-~ -- --~~~~~r>· --~-- -<~;1~~~-~ - <?;tr~-~-- ~ . . i '. i . i . -<::~;11;.=: ~ '. ; i . accepting -- it, that' he cannot have pr~per advantage of his having seen arid heard the witnesses; . . . . . . " In ground two, he submitted that there was no evidence to rebut his evidence that the address used was not given by him and so there was no misrepresentation on the address for installation. He further submitted that the application form was in the custody of the Respondent and a physical inspection was conducted meaning that any errors should have been spotted. found the structure on site when they conducted the first - - -- ·-nsI3@et-ieR- ancl-t-hey-wer---e-s-a-tisf-iedcm-d-pro-ceeded--ro-is-sue-hinrwith a quotation and they connected electricity the structure. He opined and he should have been granted damages. In ground four he submitted that the finding of the Court that the Respondent could install power to a pole and not a structure was a miscarriage· of justice. He argued that · the Respondent's safety , . standards require if to supply power to structures with propei w1nng and not to anything else . He further argued that a meter cannot be installed on a pole and that during the trial the Respondent failed to tell the court where the meter was installed. The Appellant, in ground five argued that the trial court should not have relied on the evidence of DW 1 that the demolished structures were permanent structures contrary to the permission granted by the LCC when DW 1 himself had admitted that he was not a qu.?lified planneL JJe opined that J_he court shou~ not have ma~~ a into grave error when it did so. Last of all, in Ground six, the Appellant submitted that the Court -~l~-td . ha'!.e furn& tha! th-e-:~rnolitigp ef:rftt~ -str~cture:~as · discriminatory and malicious because the car and market next to his car wash were not demolished by the Respondent. . . . ,___,. , __ . -•~· .. _..._.,., .. ~- •• . ~~r _: .: .. ... ~ ,·· .... <?;~1-~ - - . . -._..-~ - ..,... -~·-•: --~n •••~· - - , .._ ............ .,_, ,._, h ••• •••,_,.~ " • • , '<.- --'• ,,; ,._, ' . -....._~., _.,,-,,,....,..,.. ,.,., , ✓ .,.•,_,.,, . .... , . ,. __ ,._, __ ,_. ·:__;.·~~~..:~:.::.-... ,_. ·-:.-·~-~:- _ft:.~ ~--;;:;:··--.: ~-:""'"-~ . •, •·r, •:l •~ ·:· ... ,- ~~~-~~- ,,.. __ ,": • --~- ~ -~-~:---- ~~;-". .. ~~-•- l ••~.-'.~ ,;, ' ...... ~-,:- - --~ •·. •• ' : --. ....:I. ~·;. .. , . t. t . I We have considered' the grounds ., of Appeal advanced . by the, i . , i .: '. , . . , . , . . . . . Appellant, the Heads of Argument and the Judgment of the Court below along with the evidence on record . As regards ground one we wish to reproduce the relevant portion of Page J18 of when the court held as follows; "I accept the evidence of Messer Chisanga and Kasengele and find that the car wash was built in the defendant's wayleave. It is no wonder that the planning permissions -"'"-- from the L~aka City ColJ,(l-cil is '!-ot sp.>cific on the _ ~nd :;:,_,~-;. -~-'!:-iney· ~~2"-i:crtriJ:~al:ed ~ 1;";;'~;;:;;fn~--·-it -i; --~fj -~riding ~ t~hi -~1,:~-- planning permission was irregularly issued as I don't - - - - - -~hink-the-e.oun.cil-c-an-give-semeene--pla-nni-ng-permission- - in a wayleave without involving the defendant" As rightly submitted by the Appellant, this Court can interfere with the findings of the lower Court upon being satisfied that the findings of fact are bereft of all reasoning and are unjustifiable, a point we will not belabor as it is trite law. ·•_..j&~~,~ ..,, ..... pr t ' ... . ·• • • •-•• - - - -"c,; .. - <R • - · - - ~ :.,.~ t ·-: ~: .:-·. - • p --.... . -~... ~ .... --- . ..-••- • -~-- ~ ........ _,, ,._ . •. ~~: -.:-_·_ ..... 'In casu·, 1:he learned trictl Judge looked•·.at the evide~ce before him and arrived at the decision reproduced above. From the evidence on record the LCC did indeed grant permission to the Appellant to operate his car wash in the Woodlands area of Lusaka. However, the Respondent contended and the Court held that this car wash was operated in a wayleave. We have looked at the documentary evidence on record and note that the planning permission granted had a yearly tenure and was thus not a permanent authorization. The planning permission further states that only temporary -""-· structur~ -were to_ be e:i;~ted on the pr(). J_).erty subject t. S}l_approval by > · _ __ __,.t-is--n. Gt- i-n- 0:is-13u-te- t-h-at- t-he-!-aB:a-al-leea-t-ecl- te--th-e-App-eH-an-t- Wft located in the Respondents wayleave. However, as already stated, Respondent did not, in the Court below state that one is not allowed to operate in a wayleave but only that permanent structures should not be constructed there. . ... .... _ _ . . ._ _ ,_ , ._ ... _ ..... ~---- - - - - · ~· ~ - · - - - ; , ; 1/ ... ..... ~ - -- .. _ ... ~ .,..,.:-_ - -~.r. . . --- .• •'; 5' ·:~-:_ :-::.--~ • _ci_...,.___.. ... ~- ~ .. .... , ... .. 4.:.. . :~t:".-· . ~;~;;::~~: ~ ,, . :- ' . . \ . .· 'The lette;~ from the LCC' show that th~·-constructio~ ;f temporary ~ . . ' . i . structures was permitted and we presume this was the case so as to allow them to be removed at short notice. The Respondent was given three notices and a period of six months elapsed between the first notice and when his structure was demolished. The evidence shows that the Appellant spent about ZMW300,000 to develop the car wash and therefore, the only reasonable inference that can be drawn from the facts before this Court and the Court below were that he was unable to do remove his structures because they were immovaql_e structures ~d thus perman~nt structures.__.._. Section 18(2) of the Electricity Act reads as follows - - --- - --1(2)-IJ;-afie-r--a:-t-r-e:n-s-mi-s-sitm- l-i:ne- h-a-s·-been-eonstrttet-ed,--an y person erects any building or structure in such a with the supply of electricity through the transmission line in question) the operator of the undertaking who controls such transmission line may request the person concerned to remove or adjust the building or structure as· may be necessary) and if the person , . cdncemed fails -to comply ·with the request, the ope rator may apply to the Minister for an order for the removal or adjustment of the building or structure and, after due inquiry, the Minister may make such order as may be necessary. The section empowers the Respondent to request any person to adjust or remove buildings from its wayleave and provides the option of seeking assistance from the Minister of Energy. Seeking an order from the Minister is not mandatory. In the circumstances, the dem}l}ition of _the A:gpellants structw-e was lawful.~-· °".)!.: -•'.'¾-.;. : ...,.- Having found that the Appellant had erected permanent structures - - ---1,,,.nfl@-F-t-he--wayleave- anEi- t-h-at- t-he- el-ern0l-it-ie-fl--was--l-awfttl-, Grottnd 2 ,3,4 and 5 automatically become inconsequential. As regards ground 6, we would say that during the trial, the Appellant produced no evidence showing that the structures at the car wash and the market allegedly located next to him had permanent structures on them and he also produced no evidence to show that he and they were similarly" circumstanced'. The Appellant \. I. dici· not . ·prove hi~ --allegation of 'discrimination and being treated maliciously and ground 6 therefore fails. The appeal is dismissed and each party shall bear its own costs. .......................... -~ ......... . 1-r· ·..li-1.: -:1...,\:-------,-=-". ---.. C. K. MAKUNGU, JA COURT OF APPEAL JUDGE -~~- . .,._ ~ --·-·-- - - ~~--•" =-----· ' -~ -. . -:~~t :ji:;M:·KONi>:;~s·c:·:;A-· ,;:~~~~~ :··- c. -- ~-. . COURT OF APPEAL JUDGE