IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 2615 OF 2000
KATUNDU HAULAGE LIMITED...............................................PLAINTIFF
CORAM: HON. JUSTICE A.C. CHIPETA
Mr Bazuka Mhango, of Counsel for the Plaintiff
Mr A. Chinula, of Counsel for the Defendant
Mrs N. Chingana, Official Interpreter
There is an interlocutory judgment dated 19th September, 2000 herein.
It was entered in default of service of defence by the defendant.
It adjudges the defendant to pay to the plaintiff damages and costs.
The background to the matter is that on 13th September, 1998 around
4.00 a.m. the plaintiff’s tanker and trailer registered No’s TO 2800 and
BG 3934 was involved in a fatal road accident. This was on Kalungama
bridge on the Salima - Balaka road where the defendant’s agents/servants
were carrying out certain engineering works. They omitted to put
up and alerting sign to traffic to use a diversion. When the tanker
and trailer crushed its driver died on the spot and the vehicle sustained
both reparable and irreparable damage. The tanks covered be repaired
both horse and the trailer were beyond repair.
On 1st November, 2000 the Registrar for good reasons heard the plaintiff
on assessment of damages in the absence of the defendant. The plaintiff
preferred one witness only in the person of Sylvester Bendicto Mpisa, its
Financial Controller. Consequent upon this the Register subsequently
delivered a ruling awarding the plaintiff K7,658,129.20.00 under various
heads. The defendant presently appeals against this award, mainly
on the basis that it is not supported by evidence.
A number of preliminary points arose at the hearing of this appeal.
First it transpired that the defendant had appealed outside the seven day
limit allowed by the rules. It came to light that the defendant only
became aware of the Registrar’s award some six days or so after delivery
of the ruling. By consent of the parties, since the defendant was
not so seriously out of time, I ordered that we proceed with the appeal.
Next the parties agreed on an amendment to the plaintiff’s statement
of claim. Through this consesus the amendment went through.
There then came by the plaintiff to lead evidence in the appeal.
It was argued that since under Order 58, and in particular Note 58/1/2
of the Rules of Supreme Court, appeal from the Registrar came to a judge
in Chambers by way of rehearing I ought to take live testimony in this
appeal. The defendant defected to this. My ruling was
that in my understanding the expression “rehearing” did not mean calling
witnesses all over again and hearing them. I felt that in this instance
the expression “rehearing” meant treating the evidence earlier presented
before the Registrar as if it was before me at first instance and deciding
on it as freely as I saw fit whether or not I ended up agreeing or disagreeing
with the Registrar’s reasoning.
Next after this I was given the impression that the parties had discussed
and apparently agreed that the plaintiff put in a further affidavit containing
what the plaintiff called certain essential facts to assist the court in
the final assessment of an appropriate award in this case. There
was no specification what these essential facts were. Counsel for
the defendant did confirm some discussion on the proposed further affidavit.
He was however not quite sure about the effect of affidavit vis-a-vis the
ruling I made on the expression “rehearing” but he indicated that he did
not want to stand in the way of the plaintiff’s case.
An adjournment of the matter was at this stage sought, as Counsel for
the defendant had to rush back to Lilongwe on Parliament business.
In my ruling on the application I made it clear that normally an appeal
proceeds on evidence taken in the court of first instance. An appeal,
I said, should not be used as an opportunity for improving on what was
omitted at first hearing. I did however acknowledge that rules allow
in rare cases for the presentation of additional or further evidence on
appeal. I thus said if the parties were agreed on this further or
additional evidence it should be understood that it was being admitted
at their instance and not at my invitation. To be fair I directed
that the plaintiff serve its intended affidavit quickly enough on the defendant
to enable the latter to respond to same, if need be.
When the said further affidavit was filed and served it because obvious
that I was quite mistaken in understanding the parties to be agreed on
the introduction of this further or additional evidence. From the
affidavit in opposition filed by the defendant and from the arguments that
proceeded the hearing of the appeal, thereafter, it struck me that in the
consesus the parties appeared to have reached, the defendant was not aware
of the extent to which the plaintiff intended to go with “essential facts”
in the proposed affidavit. To be quite frank the further affidavit
which is sworn by the plaintiff’s Managing Director and Chairman amounts
to a PWII in the case and it attempts to sure the defects and omissions
made at the initial hearing. Through this further affidavit, testimony
which Mr Mpisa failed to give has been brought up and documents Mr Mpisa
did not produce or tender have now been exhibited.
I am convinced that what I saw as a consesus was not real. I
further do not see any other special reason to justify use of this additional
evidence at this state when there is no explanation why it was initially
left out in the proceedings before the Registrar since the only reason
that led me to accept admission of this further affidavit on the plaintiff’s
part was this “consesus” I cannot after the crumbling of this base now
fairly utilize this affidavit in this appeal. It in reality amounts
to a second bite on the cake by the plaintiff in the presentation of its
case. One has to bear in mind that the plaintiff had all the liberty
to present whatever evidence stood in its favour at the initial hearing
at which the defendant was not even present. The plaintiff however
opted, without any external pressure, to call only one witness and to only
tender the documents it then tendered. For the plaintiff to now use
an appeal by the defendant as opportunity to supply for earlier defects
is, at the very least, quite unfair and in my view an abuse of the process.
I will accordingly strictly deal with this appeal in traditional fashion.
I will confine myself to a revaluation of the evidence that has before
the Registrar and proceed to decide whether to retain or overturn the decision
of the Registrar on that basis alone. To evaluate the Registrar’s
ruling as against evidence that was not presented to him cannot strictly
be appeal business. I thus fully reject the further affidavit and
all its new evidence from consideration as I am convinced that it was brought
in as an afterthought and merely to improve the plaintiff’s case after
noting that the earlier presentation was wanting in certain respects.
The Appellant concedes the occurrence of this accident, and that the
driver died as well as that the horse and trailer were damaged beyond economic
repair and that the tanks were also damaged but that they could be repaired.
The Appellant thus further concedes that the plaintiff faced fundal expenses,
that it is entitled to replacement of the damaged horse and trailer, and
that it is also entitled to repair costs of the damaged tankers, apart
from loss of use of the vehicle in question.
In this appeal the major query the defendant has raised to attack the
Registrar’s award is that it is mainly based on petty cash vouchers, invoices,
and quotations, and that there is not a simple receipt exhibited to confirm
the expenditures claimed. As regards loss of earnings arising from
loss of use of the vehicle, the main objection is that the plaintiff worked
out these details itself instead of, say, using auditors and that it omitted
such essential details as tax. The Appellant made it plain that it
was not disputing the expenses or the ability of the plaintiff’s to calculate
their loss of earnings, but that its concern was lack of concrete proof
It was argued on behalf of the plaintiff/respondent that a petty cash
system of accounting was as good a system as a receipts one and that in
this case use of invoices and quotations was equally effective in the demonstration
of the incussing of obligations and liability to pay.
To cut a long story short, let me say here that the defendant/appellant
raised a strong point here. A receipt is a far more powerful piece
of evidence in my view than any petty cash voucher, invoice or quotations.
A receipt more than any of these other documents of accounting tells more
clearly that an incussed obligation has been met with a payment duly acknowledged
by the provider of a service. Thus on any day a receipt that a coffin,
or fuel, or gas has been paid for or that a truck has been hired is for
better than a petty cash voucher indicating that so much money has been
put aside for this or that service. As regards quotations it is possible
to get such from several sources and for some of them to be higher and
for others to be lower. Thus the mere exhibition of a quotation need
not be taken as proof of the incussing of an obligation as one may easily
opt for a different or cheaper quotation. I thus cannot agree that
a petty cash voucher, an invoice, or a quotation can stand on the same
footing as a receipt.
Be this as it may, before I can consider whether to fault the Registrar
in this respect I have to bear in mind the time situation in which the
Registrar found himself. He had before him an interlocutory judgment
which had been entered in default of service of defence. He also
had before him only the plaintiff on assessment of damages despite service
of notice of appointment on the defendant. He had oral testimony
of a witness to back up the petty cash vouchers, invoices, and quotations
that were being tendered before him. There was no challenge or dispute
being raised against all this evidence and he enjoyed the advantage of
assessing the demeanour of the witness that was testifying before him.
In the circumstances, the combination of this oral and documentary evidence,
which stood uncontroverted, gave the Registrar as nearly clear a picture
as he could get as regards the plaintiff’s losses and recovery entitlements
as was possible.
True receipts, important as they are, were not tendered in evidence,
but as I have indicated the Registrar was not just blindly falling for
the petty cash vouchers, invoices, and quotations. He was considering
these after taking into account the oral testimony on oath of the plaintiff’s
Financial Controller who tendered them. Short of dreaming up his
own figures I think the Registrar was quite entitled to view the evidence
before him in the way he did and to make the awards be made.
I have myself gone through the evidence of Mr Mpisa alongside the documents
he tendered. I have also borne in mind that the Appellant is not
in fact questioning any of the expenditures covered on the petty cash vouchers.
I particularly note that the reasonableness of the figures being claimed
has not fallen into question. The expenditures attached to recovery
costs of the damaged vehicle, funeral expenses, hiring costs for transportation
of the remains of the driver to Karonga, and related staff allowances do
not appear to be out of proportion. I have seriously asked myself
whether the mere absence of receipts when there is instead testimony of
Mr Mpisa and petty cash vouchers and when it is clear that the accident
herein must have entailed this type of expenditure, should really make
the award of the Registrar faulty under this head. I take the view
in the circumstances that the Registrar was quite right in making the awards
be made despite absence of receipts in these areas.
As regards the quotations on cost of replacement of horse and trailer
while I stand by my remarks that quotation can come from any source and
can vary depending on the source, I am comforted in this regard that the
Registrar had to consider these quotations in the light of testimony by
a Financial Controller of the plaintiff, whom he had opportunity to assess.
The plaintiff’s horse and trailer having been damaged beyond economic repair
in the accident I have no doubt in my mind that the plaintiff was/is entitled
to their replacement. To require that the plaintiff buy the replacements
first and then display receipts for recovery from the defendant would on
my part appear somewhat unduly oppressive on a party already weakened by
the tort of the defendant. I fully subscribe to the Malawi Supreme
Court decision in MSCA Civ. Appeal No. 48 of 1995 Fernandes -vs- Karfreight
Deliveries Ltd that the plaintiff is entitled to restitutio in integrum
in this regard. I have however to evaluate the Registrar’s award
here in the light of the evidence presented to him. I think the quotations
presented to the Registrar complied with the buttressing testimony of Mr
Mpisa, the said evidence having stood unchallenged, gave the Registrar
a sound base for the award he made. I really cannot fault his ruling
just because there was no receipt shown to him for purchase of a replacement
horse or trailer. In making his award the Registrar does not appear
to me to have employed any wrong principle of law or on the evidence before
him to have made any award that may be described as extreme in any way.
I will therefore not interfere with the award he made under this head.
On repairs to the tanks my reasoning is the same. If the Registrar
had relied on naked quotations from Pew Limited I would have had cause
to worry about the award. He however also took in evidence buttressing
testimony from the Financial Controller. The obligation of the defendant
to foot the repair costs of the tankers damaged on the plaintiff’s vehicle
as a result of the accident is not in doubt at all. The evidence
before the Registrar went beyond a mere quotation from Pew Limited.
It extended to the fact that the tanks were taken there and repaired at
the quoted price and it stood unchallenged. I think in the circumstances
it would be idle to disallow the award simply because the Registrar was
not shown any receipt relating to the repair costs.
On loss of earnings due to loss of use of the vehicle in quotation the
main complaint I picked in the appeal was that the plaintiff rather than
someone independent did the calculations. In the absence of authority
barring a complainant from doing his/her own computation of loss of profits
in a like scenario I find myself reluctant to just rush and accept that
as a fault. I do bear in mind that it was acknowledged that the plaintiff
was well placed to make the calculations it made.
One other complaint raised on appeal under this head is that in the
computation of loss of earnings the tax factor was omitted. I think
this is quite a fundamental point. Exhibit P5 indeed entirely omits
that factor in its computation of the profits the plaintiff might have
made through use of this vehicle had it not been involved in the accident.
I think there is no escaping the point that if all had been well and profits
had indeed been made as estimated, the same would have been subject to
the ruling rate of tax for a business organization, liability to tax cannot
be thrown overboard just because we are dealing with estimated loss of
use and loss of profits. Leaving this aside however exhibit P5 appears
to be a genuine effort at projecting a true picture of what the going concern
of the plaintiff would have yielded over the time covered had it not been
for the interruption of the accident. It appears to me to properly
balance revenue as against operating costs and brings forth a balanced
picture. Again here I bear in mind that the Registrar had both the
testimony of the Financial Controller and exhibit P5 to go by, which at
the time stood unchallenged before he made the award. Save for the
tax factor which was not then raised I think the Registrar correctly arrived
at the award he made as regards loss of profit. Subject to a direction
that the awarded loss of earnings be subject to tax at the ruling rate
for a business organization for the period of 14th September, 1998 to 14th
October, 2000 I confirm the award the Registrar made.
I have in this case tried as much as possible to place myself in the
shoes of the Registrar when he heard evidence on assessment. The
essence of an appeal being essentially to correct errors the lower court
may have made on the material presented before it I have confined myself
to a revaluation of that evidence which was uncontested at the time and
tried to assess whether the Registrar engaged in any faulty reasoning in
reaching the awards he made. I have duly failed to find such fault
and I have refused to test the Registrar’s awards against evidence that
was not presented to him through no fault of his. All in all I have
held that all the awards made by the Registrar stand save for taking into
the tax factor on the award of K3,019,695.00 as regards loss of use of
the vehicle. Thus subject to this authorized deduction, the award
in favour of the plaintiff as made by the Registrar is confirmed in full.
The appeal of the defendant thus fails and is dismissed with costs.
Made in Chambers this 8th day of February, 2001 at Blantyre.