IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 1695 OF 2002
BETWEEN:
G.A. MWELUZA…………………………………………….PLAINTIFF
AND
ATTORNEY GENERAL
(MINISTRY OF EDUCATION)
………………………..…DEFENDANT
CORAM: TEMBO, ASSISTANT REGISTRAR
Ziyendam’manja, Counsel for the plaintiff
This is this court’s order on assessment of damages arising out the destruction of the plaintiffs’ property by students of Luchenza Secondary School who were negligently managed by the Ministry of Education represented by the defendant.
The assessment is done
pursuant to a default judgment dated 23rd March, 2004. The notice of hearing of this assessment was
duly served on the defendant who never appeared at the hearing. That left the plaintiff’s evidence
uncontroverted. The pupils of Luchenza
Secondary School completely destroyed the plaintiffs property at his residence
which was near the Luchenza Secondary School.
Some of the property was domestic and the other property was
commercial. The plaintiff consequently
claims damages for the destruction of the property as well as for loss of
business arising from that destruction.
The plaintiff lost a lot of
property as follows, a sofa set, dining set, 5 beds, 5 mattresses, coffee
table, a cupboard, one radio cassette, a radiogram, kitchen utensils and other
house hold goods, blankets, bed sheets, clothing for all his 14 children,
handbags, shoes, 27 chickens, 7 pigs,
an entire orchard, 76 x 70 kg bags of
maize, 2 x 50 kg of beans, 2˝ bags of sorghum, 3 x 50 kg bags of peas, 2
grocery shops, 6 one bed roomed houses,7 non-bed roomed houses 2 toilets, 2
bathrooms, a pigsty, 34 iron sheets, 3 door frames, 2 bicycles, hoes, axes,
wheelbarrows, 2 weighing scales, 10 crates of coca cola.
The plaintiffs’ grocery
stock was worth about K45,000.00 at the time of its destruction. The plaintiff let out his 6 one bed roomed
houses at K600.00 per month and the 7
non bed roomed houses at K300.00 per month. The plaintiff used to realise about K3000.00 daily from his
grocery sales.
The plaintiff bought each
bag of maize at K250 and would sell the
same at K800.00 making a gross profit of K550.00 per bag. The net profit per bag is unknown. Each of the plaintiffs’ pig was worth
K4,500.00. The plaintiff alleged that
by now he would have had 147 pigs due to breeding. But that is purely speculative in the absence of credible
supporting evidence.
The plaintiff valued all his property destroyed
herein at K938,000.00. He could not
produce receipts for his properties that he had acquired since the same were
destroyed by the fire herein. The
uncontroverted evidence on the value of
the plaintiffs’ appears credible when one considers the magnitude of his
property destroyed herein. This court
therefore accepts the valuation of the
plaintiffs’ property in the absence of proof of purchase thereof that was
destroyed herein. The normal measure
of damages for property that has been destroyed is the market value of such property. See Leisbosch
Dredger v S.S. Edison [1933] A.C. 449.
And so, this court awards the plaintiff the sum of K938,000.00 damages
for loss of property destroyed herein.
This court now turns to
the plaintiffs’ loss of business. This is with respect to the plaintiffs’
grocery stock, his maize, pigs and rentals.
For rentals the loss of business is represented by the value of lost
rentals lost between date of destruction up to date of assessment See
Banda v Attorney General Civil Cause No. 1727 of 1993. And herein the loss of business works out as the
product of the number of rooms and cost per room and the number of months since
July, 2000 when the rooms were destroyed to
May 2004 when the assessment was done i.e. 47 months.
Thus 7 rooms x 300/month x
47 months plus 6 rooms x 600/month x 47 months. This comes up to K267,900.00.
The sum of K267,900.00 for loss of rentals is awarded to the
plaintiff. With regard to the loss of business
with respect to the plaintiffs’ maize, pigs and grocery stock this court is of
the view that the best measure of loss of business ought to be the interest on
the capitalized value thereof of K95,500.00 from the date of destruction of
17th July 2000 to the date of the assessment herein of 13th
May, 2004. This is in line with the
measure of loss of profits as laid out in the case of Leisbosch Dredger v S.S. Edisson [1933] A.C.
449 at 468-469 that loss of profits be measured as interest on
capitalized value of the lost chattel, and in that particular case a ship. The rate of interest applicable shall be the
investment rate applicable for the relevant period from time to time at either
Stanbic Bank or the National
Bank. The computation shall be done and
be certified by the bank for the endorsement by this court. Cost of this action are for the plaintiff.
Made in Chambers at Blantyre this
………June 2004.