Poly Technic Limited v Howard Cooke (APPEAL NO. 38 of2018) [2018] ZMCA 404 (21 December 2018)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 38 of2018 Jl HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: POLY TECHNIC LIMITED AND HOWARD COOKE ---, - ' 2 \ Ot:.t: 2018 T . C\~\L REC\STRY. ~'t9x !.ltl~~US, . RESPONDENT CORAM: MULONGOTI, SICHINGA AND NGULUBE, JJA On 22nd August and 21•t December, 2018 For the Appellant: M. Mwanawasa, Messrs Dove Chambers For the Respondent: No appearance JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Nkhata and others vs Attorney General (1966) ZR 124. 2. Betty Kalunga (suing as Admi,.;_istrator o/the Estate of the late Emmanuel Bwalya) Vs Konkola Copper Mines Pie (2004) ZR 40 (SC). 3. Kabwe Transport Company Lipited vs Press Transport Limited (1984) ZR 43. 4. Litana vs Chimba and Another (1987) ZMSC 21. J2 This is an appeal against a Judgment of the High Court that was delivered on the 22nd of September, 2017. The background facts of the appeal are that on 15th May, 2013, the respondent drove his motor vehicle, registration number ALB 1558 along Green Gardens road. He was involved in a road traffic accident and his vehicle overturned near Kazani Lodge after it plunged into a trench that was dug by the appellant. The respondent stated that he and his passengers sustained serious injuries and that his vehicle was damaged beyond repair due to the negligence of the appellant. He further stated that he and his two passengers suffered permanent disability and that he lost his motor vehicle as it was extensively damaged. He alleged that the appellant dug a trench in the middle of the road but neglected to put any signs to warn motorists and other road users. The respondent accordingly claimed the sum of K854,960.00 as refund for medical and travel costs to India, Kl 10,000.00 as compensation to replace the damaged motor vehicle, K360,000.00 as compensation for permanent disability as well as costs. J3 In its defence, the appellant denied leaving the trench unsecured and stated that it put warning tapes, stop signs and a detour at the site which was manned by a night watchman. The appellant contended that the respondent was negligent as he contravened traffic rules by driving on the right-hand side and was over speeding, thus failing to stop and that this resulted in the accident. The trial Court analysed the evidence before it and found that the appellant, owed a duty of care to the respondent. The Court found that the evidence of the appellant's witness, DW 1 was unreliable because he kept changing his testimony during cross-examination. The Court concluded that the witness was not truthful and disbelieved him. On the totality of the evidence before it, be Court found that the respondent proved his case on a balance of probabilities and found that the appellant was negligent. Judgment was accordingly entered for the respondent and the matter was referred to the Deputy Registrar for assessment of the medical bills and travel costs. The Court also awarded the respondent special damages in the sum of Kl 10,000.00 for the replacement of the motor vehicle. J4 Dissatisfied with the Judgment, the appellant filed a memorandum of appeal on 9 th November, 2017, advancing four grounds of appeal as follows- 1. That the learned trial Judge erred in law and fact by failing to evaluate the evidence on record, and thereby arriving at a conclusion that the appellant did not put up warning signs. 2. That the learned trial Judge erred in law and fact when she solely relied on the evidence of the respondent in total disregard of the totality of the evidence on record, thereby arriving at the conclusion that the appellant was solely to blame for the accident. 4. That the learned trial Judge erred in law and fact when she relied on the evidence of a Police report that contained evidence of a criminal nature in civil proceedings. On ground one, we were referred to page 12 of the Judgment where the Court found as a fact that the appellant did not put up any warning signs. The Court came to this conclusion due to slight discrepancies in the testimony of DW 1, who was present at the scene of accident. We were referred to the case of Nkhata and JS others vs Attorney General 1 which sets out seminal principles on how a trial Judge sitting alone without a jury can have its findings of fact reversed, when the appellate Court finds that- (a) by reason of some non-direction or misdirection, or otherwise, the Judge erred by accepting the evidence which he did accept; (b)in assessing and evaluating the evidence, the Judge took into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; (c) it unmistakenly appears from the evidence, or from the unsatisfactory reasons given by the Judge for accepting it, that he cannot have taken proper advantage of his having seen or heard the witnesses; (d)in so far as the Judge relied on manner and demeanor, there are other circumstances which indicate that the evidence of the witnesses which he accepted, is not credible, as for instance, where those witnesses have on some collateral matter given an untrue answer. J6 It was submitted that the finding that the appellant did not put up warning signs ought to be reversed as it was a misdirection for the Judge to accept the evidence which made her arrive at this conclusion. It was submitted that the testimony of DWl contained slight discrepancies which could have resulted from honest mistakes, considering that he was illiterate. It was contended that this cannot be the basis for disbelieving his evidence and submitted that pictures of the scene that were taken a day after the accident were unreliable as they did not reflect the actual circumstances when the accident occurred. Counsel submitted that the material and relevant evidence was adduced by DWl who was present at the scene when the accident occurred, that the respondent failed to look out for the warning signs. The appellant prayed that ground one succeeds. On ground two, it was submitted that the testimony of the respondent was to the effect that he drove his motor vehicle at the speed of 60 kilometres per hour and that the vehicle was declared a write off after the accident, with passengers sustaining severe injuries. It was submitted that the damage to the motor vehicle and J7 the injuries that the passengers sustained cannot reasonably be expected from a motor vehicle travelling at a speed of 60 kilometres per hour or less. It was submitted that the Court's finding that the appellant was negligent and solely to blame for the accident was made in the absence of relevant evidence as the Court failed to make a reasonable inference of the respondent's contributory negligence in the accident. We were urged to consider how other jurisdictions have dealt with the issue of contributory negligence that was not pleaded but raised later in the day. It was contended that the Court should have exercised its discretion by apportioning liability between the appellant and the respondent, due to the issue of contributory negligence. We were referred to the case Betty Kalunga (suing as Administrator of the Estate of the late Emmanuel Bwalya) Vs Konkola Copper Mines Plc 2 where the Court held that- "in cases of contributory negligence, the damages recoverable by the plaintiff are reduced to such an extent J8 as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." . We were urged to order that the damages claimed by the respondent be accordingly reduced and allow ground two of the appeal. Ground three of the appeal was abandoned. On ground four, it was submitted that the learned trial Judge erred in law and fact when she relied on the evidence of a Police report that contained evidence of negligence to support civil proceedings. It was submitted that the learned trial Judge ought to have placed little or no weight on the Police report to support findings of negligence in a civil suit. It was contended that the Court disregarded the evidence of DW 1 and relied on the Police report to support findings of negligence. We were referred to the case of Kabwe Transport Company Limited vs Press Transport Limited3 where the Supreme Court stated obiter dicta that there is no provision for the calling of evidence in criminal proceedings to assist a decision in civil J9 proceedings. It was submitted that the Police report was drawn up on 19th June, 2013, a month after the accident occurred, on 15th May, 2013 and that the report was likely to be inaccurate considering, the passage of time. Counsel submitted that the Court erred as there was an unbalanced evaluation of the evidence of the parties. We were urged to allow ground four of the appeal. Counsel prayed that the appeal be allowed as the Court misdirected itself in many respects. The respondent did not file any heads of argument and did not attend the hearing of the appeal. The evidence of the respondent in the Court below was that there were no warning signs on the road and he denied over speeding. We have considered the record of appeal the submissions of Counsel and the Judgment appealed against. We agree with the learned trial Court's findings of fact that there were no warning signs and that the failure by the appellant to erect the same amounted to a breach of duty of care. We cannot assail the learned trial Judge findings of fact in this regard as they are supported by JlO the evidence on record. We therefore do not find merit in the first ground of appeal and we accordingly dismiss it. The second ground of appeal essentially challenges the learned trial Judge's findings of fact when she relied on the evidence of the respondent and blamed the appellant solely for the accident. The appellant argued that if the respondent drove his motor vehicle at 60 kilometres per hour, the damage that was occasioned to the vehicle and the severe injuries that he and his passengers suffered show a different picture, that the respondent was travelling at high speed, hence the damage and severe injuries suffered. However, as was stated by the learned trial Judge when she referred to the case of Litana vs Chimba and Another4, the absence of expert evidence on the estimated speed of the respondent's motor vehicle means that a trial Court cannot competently come to a conclusion about the speed of a vehicle. The appellant contended that there was sufficient evidence on record to satisfy the trial Judge that the respondent travelled at high speed and contributed to the accident. We do not find this evidence on record. Jll We are of the view that inspite of the appellant's spirited arguments, it was to blame for the accident due to its negligence. The appellant dug a trench in the road and did not warn road users about it by putting up warning signs. This led to the respondent's plunging into the trench and the accident occurred. The appellant raised an argument that the respondent ought to be held liable in contributory negligence. However, it was not pleaded and was only raised for the first time by the appellant's Counsel in submissions. The learned trial Judge considered the circumstances of the case and found that there was no contributory negligence on the part of the respondent and we cannot fault her for that. We do not find merit in this ground of appeal and we dismiss it. On ground four, that the learned trial Judge relied on a Police report that contained evidence of negligence to support findings in civil proceedings, the appellant relied on the case of Kabwe Transport Company Limited vs Press Transport Limited, it was argued that the Court erroneously relied on the Police report to make findings of fact for negligence in a civil case contrary to the authority highlighted above. It was submitted that the Police report was drawn Jl2 up on 19th June, 2013 when the accident occurred on 15th May, 2013 and that the trial Court misdirected itself in considering the Police report and arriving at its decision to find the appellant liable. We were urged to allow ground four of the appeal. We have considered ground four of the appeal which suggests that the Court found the appellant liable on the strength of the Police report that was alluded to in evidence by the plaintiffs second witness. We have considered the learned trial Judge's findings of fact in the Court below which the Court made based on the evidence of the respondent, who testified in the lower Court as the plaintiffs first witness. The Court stated at page J9 that "the plaintiff contends that the accident was caused by a trench dug across the road by the defendant who neglected to put warning signs to alert the motorists or other road users." This was the basis of the Court finding the appellant liable. We are of the view that the Court did not rely on the Police report to find the appellant liable in negligence. The Court analyzed the evidence before it and found the testimony of the respondent to be • J13 more credible. It was entitled to do so. We accordingly do not find merit in ground four of the appeal and it is dismissed. All grounds of appeal having failed, the net result is that this appeal is dismissed for lack of merit. ~~( COURT OF APPEAL JUDGE GA JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE