Warren N'gambi v A.K Patel (SCZ Appeal 119 of 2000) [2000] ZMSC 144 (31 August 2000)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No.l 19 OF 2000 HOLDEN AT KABWE AND LUSAKA (CIVIL JURISDICTION) BETWEEN: WARREN NG'AMBI APPELLANT AND A. K. PATEL RESPONDENT Coram: Ngulube, C. J., Muzyamba and Lewanika, JJ. S. 8th August and 31st August 2000 For the Appellant: Mr. A. M. Bwalya, Senior Legal Aid Counsel Standing in for Mr. A. Mbambara, Senior Legal Aid Counsel For the Respondent: Mr. M. Kabesha, Kabesha and Company JUDGMEN T Muzyamba, J. S. delivered the judgment of the Court. This is an appeal against an award of damages and surrender of salvage to the respondent. The brief facts of this case were that the appellant was the owner of an unregistered motor vehicle, a Toyota Hiace mini bus which he bought and imported from Dubhai. The declared value of the vehicle at Nakonde Border Post was K7,500,000-00 and the vat and duty paid was K2,126,710-00. The vehicle was involved in an accident at Chibombo turn off along Great North Road as it was being driven by PW.2, RICHARD MENSA. He hit into a stray cow. The cow belonged to the respondent. In the writ and statement of claim the appellant claimed $ 13,500 and K25,OOO,OOO respectively being the market value of the vehicle. Liability was not in issue and at the conclusion of the trial the : J2 : learned trial Judge entered judgment for the appellant for the sum of K9,626,710 being the declared value of the vehicle and the vat and duty paid on the vehicle by the appellant. In the meantime the respondent had paid into court the sum of K2,100,000 being the value of spare parts which the appellant intended to import from Dubhai to repair the vehicle. The appellant advanced four grounds of appeal. One, that the learned trial Judge erred in not awarding damages for loss of business. Two, by not taking into account inflation. Three, by giving the salvage to the respondent and four, by not putting the appellant in the same financial position he was at the time of the accident. We propose to deal with ground 1 first and then grounds 2 and 4 as they are inter-related and lastly ground 3. At the hearing of the appeal both learned Counsel relied on their written heads of arguments, which we have carefully read and considered. It is common cause that the mini bus not registered as such. It was not earning any income at the time of the accident. Where a Chattel is not earning an income at the time of damage no damages for loss of business arise. The appeal would fail on this ground. As regards grounds 2 and 4 and the argument that the court erred in not taking into account inflation and by failing to put the appellant in the position he was at the time of the accident it will suffice for us to say that the award of capital value of the vehicle and award of interest took care of the inflation and certainly put the appellant in the position he was at the time of the accident. The appeal would again fail on these grounds. As regards ground 3 and the argument that the learned trial Judge erred to give the salvage to the respondent we wish to say that where the owner of a damaged chattel recovers the frill value of the chattel the salvage goes to the tort feasor. That has always been the position at law. The learned trial Judge did not therefore err in giving the salvage to the respondent. The appeal also fails on this ground. It is dismissed with costs to be taxed in default of agreement. We were informed al the hearing of this appeal by Mr. Kabesha that the Judgement sum was paid into court. The appellant is therefore at liberty to apply for payment out of court. J3 M. M. S. W. NGULUBE CHIEF JUSTICE W. M. MUZYAMBA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE