SCZ Judgment No. 14 of 2014
(348)
IN THE SUPREME COURT OF ZAMBIA
HOLDEN AT LUSAKA
(CIVIL JURISDICTION)
Appeal No. 103/2010
SCZ/8/96/2010
BETWEEN:
INTER MARKET BANKING CORPORATION
(ZAMBIA) LIMITED
APPELLANT
AND
GRAINCOM INVESTMENTS LIMITED
Coram:
RESPONDENT
Sakala, Chibesakunda, and Phiri, JJS
On 2nd November, 2011 and 18th March, 2014
For the Appellant:
Mr. N. Makayi
Of Messrs CRC & Co.
Messrs Tembo Ngulube & Associates)
For the Respondent:
Mr. F. Mutale
Of Messrs Lisimba & Co.
JUDGMENT
Phiri, JS, delivered the Judgment of the Court
Cases referred to:
1.
Jefford and Another vs. Gee (1970) 1 ALL ER 1202
2.
Victoria Laundry vs. Enoch Percy Kavindele, Appeal No. 98
of 1995.
3.
Philip Mhango vs. Dorothy Ngulube and Others (1983) ZR
61 at 66.
4.
Attorney-General vs. D. G. Mpundu (1984) ZR 6 at page 12
(349)
5.
Hayward and Another vs. Pullinger and Partners Limited
(1950) 1 ALL ER 581 to 582.
6.
Chaplin vs. Hicks (1911) 2 KB 786 (CA).
7.
Eastern Cooperative Union Ltd. vs. Yamene Transport Ltd.
(1988/1989) ZR 126 at page 128
When we heard this appeal we sat with the Hon. Mr. Justice E. L.
Sakala, Chief Justice (as he then was), Mr. Justice E. L. Sakala has
since retired. This judgment is therefore a majority decision.
This is an appeal against the decision of the Deputy Registrar on
assessment of damages following the settlement, by the parties, by
a Consent Judgment dated 25th June, 2008.
The brief history of this case is that the Respondent (who was the
plaintiff in the Court below) launched an action against the
Appellant (the defendant) arising out of the defendant’s seizure of
the
plaintiff’s
Account
which
had
a
credit
balance
of
K49,105,561.10. The Account was seized for a period of 18 months
and seven days. The Respondent’s claim was for the following:
J2
(350)
a)
Damages for wrongful seizure of the plaintiff’s money and
closure of Account.
b)
Damages for loss of business;
c)
Refund of a sum of K49,105,561.10 being money wrongfully
seized from the plaintiff’s Account;
d)
Interest; and
e)
Costs.
By consent Judgment, the Appellant admitted that the Respondent
was deprived of the use of its monies in the sum of K49,105,561.10
for a period of 18 months.
Pursuant to the consent Judgment, the Appellant paid to the
Respondent the sum of K66,613,304.11, broken down as follows:
(i)
K49,613,308.11 as refund of money seized by the Appellant.
(ii)
K15,000,000.00 as costs; and
(iii)
K 2,507,747.01 as accrued interest from the date of
commencement of the action to the date the seized money was
returned; being 10th May, 2007 to 21st July, 2008.
Pursuant to the same consent Judgment, the parties agreed to refer
the other claims for damages to the Deputy Registrar, for
J3
(351)
assessment. At the assessment, the Respondent was awarded the
following damages:
1.
The sum of K201,606,104.54 for loss of use of the seized
monies.
2.
K30,942,780.00 for loss of profit.
3.
K908,000.00 for refund of Bank charges.
4.
Interest at short term deposit rate from the date of the Writ to
the date of Judgment and thereafter, at current average Bank
rate from the date of Judgment to the date of full payment and
costs.
Dissatisfied with the afore-mentioned awards, the Appellant has
appealed to this Court; advancing four (4) grounds of appeal as
follows:
1.
The Honourable Deputy Registrar erred in both law and fact,
by awarding the Respondent damages in the sum of
K201,606,104.54 for loss of use of seized money by entirely
and exclusively relying on the average net credit and debit
balance entries in the Respondent’s Bank Statement of
Account. This award was made in the absence of relevant and
satisfactory evidence to prove a loss of this nature in the
circumstances of this case.
2.
The Honourable Deputy Registrar erred in both law and fact,
by awarding the Respondent damages for loss of business in
the sum of K30,942,780.00, by entirely and exclusively relying
J4
(352)
on the deposits made in the Respondent’s Bank Account over
a period of seven months. This award was made in the
absence of relevant and satisfactory evidence to prove a loss of
this nature in the circumstances of this case.
3.
In the alternative to ground 2 above, the Honourable Deputy
Registrar, in awarding damages for loss of business, erred in
law by failing to appreciate and understand that the claim for
loss of business was not specially pleaded as to be assessed in
view of the Consent Judgment dated 24th June, 2008.
4.
The Honourable Deputy Registrar erred in law, by awarding
the Respondent the sum of K908,000.00 as refund of Bank
charges, which claim was totally new and was not specially
pleaded for purposes of assessment as agreed by the parties
vide the Consent Judgment dated 24th June, 2008.
In support of the appeal, Learned Counsel relied on the Appellant’s
heads of arguments.
In ground 1, it was contended that the
damages for loss of use of seized monies in the sum of
K201,606,104.54,
was
awarded
in
consequence
of
the
misapplication of law and a misunderstanding of evidence required
to prove general damages on one hand and special damages on the
other.
It was further argued that since the Appellant did not
dispute depriving the Respondent’s use of its money in the sum of
K49,105,561.10 for a period of 18 months, what the Deputy
J5
(353)
Registrar
should
have
determined
was
the
nature
of
the
compensation to the plaintiff; and that the payment of interest from
10th May, 2007, to the date of refund of the money; namely, 21 st
July, 2008 was sufficient compensation.
In support of this argument, Learned Counsel cited the English
case of Jefford and Another vs. Gee(1) where Lord Denning made
the following statement:
“Interest should not be awarded as compensation for the
damage done. It should only be awarded to a plaintiff for
being kept out of money which ought to have been paid to
him”.
Learned Counsel also cited the Zambian unreported case of
Victoria Laundry vs. Enoch Percy Kavindele(2) in which this
Court held as follows:
“The rules of remoteness as formulated in the leading
cases preclude recovery of special damages or losses which
could not have been within the contemplation of the
parties or which cannot have been reasonably foreseeable
at the time of entering into the transaction. Conversely,
while interest is the normal compensation for failure to
pay money by due date, the award for damages cannot be
ruled out completely if the loss suffered was within the
contemplation of the parties”.
J6
(354)
It was Learned Counsel’s contention that from the time the
Respondent Company was seized or closed, the Respondent could
not have been making debits and credits and therefore, loss of
business could not have been incurred and that if any loss was
incurred, such loss became special damage as it was not in the
contemplation of the parties.
It was further argued that special damages need to be specifically
pleaded and proved; which was not the case in this matter where
the Deputy Registrar awarded a sum of K201,606,104.54 for loss of
use of seized money without evidence being led to prove this special
damage. In conclusion on ground 1, Learned Counsel argued that
the awarding of the damages for the loss in this case, was both for
general damages and special damages and, as such, the award
resulted in duplication of damages, which in the circumstances,
resulted into unjust enrichment of the Respondent.
In ground 2, the Appellant attacks the award of K30,942,780.00 as
damages for loss of business on the basis of deposits made to the
J7
(355)
Respondent’s Bank Account over a period of seven months in which
an audit was conducted without relevant and satisfactory evidence
to prove such a loss.
It was contended that the Deputy Registrar solely relied on the
evidence
of
Mumbwali
Simuzimbili
(PW2)
who
audited
the
Respondent’s books over a period of seven months over which he
found that the Respondent’s turnover was K355,000,000.00, and
arrived at the average of K55,000,000.00 per month which was
multiplied by 18 months from which a net profit was found to be
K5,177,130.00 per month after deducting expenses and tax
incidentals.
The Appellant’s argument here is that the Deputy Registrar should
have properly ascertained the Respondent’s net profit on the basis
of the actual evidence available instead of adopting the average
earnings per month. The Appellant’s contention is that the formula
used by PW2 at arriving at the monthly profits and which was
wholesomely adopted by the Deputy Registrar, was in consequence
of a total miscomprehension of facts and misapplication of law
J8
(356)
relating to award of special damages.
More so, that the
Respondent’s financial statement for the year ended 31st March,
2007 (page 78 line 12 of the Record of Appeal) shows that between
1st April, 2006 and 31st March, 2007, the Respondent had made a
net profit of K34,812,657.00. This meant that the average monthly
profits on dividing the annual profits by twelve months was
K2,091,054.75.
Therefore, there was no need for the Deputy
Registrar to use the annual gross turnover of K355,000,000.00
when the financial statement itself showed that the Respondent was
making an average monthly profit of K2,901,054.75.
Secondly, it was further argued that the Respondent’s business
inevitably meant that by the time of the closure of the Account, the
money it had to invest in business in order to make profit was
K49,105,561.10.
The Respondent was not able to conduct
business as a result of the seizure; this automatically led to loss of
profits.
However, the Respondent’s business was not completely
crippled. It continued to carry on business as it had maize stocks
in its stores. This is confirmed by PW1 at page 147 of the Record of
J9
(357)
Appeal. There was a loss on the Respondent’s business however,
because it did not have money to meet various orders. There was
need for proof of those orders.
However, during the assessment, PW1 failed to produce the
Respondent’s orders which, it was claimed, could not be met
because of the seized money; as they were unable to purchase and
resale, and make profits.
It was the Appellant’s contention that
failure by the Respondent to produce evidence of failed orders
should have reacted against the Respondent.
In support of this
argument, Learned Counsel cited the case of Philip Mhango vs.
Dorothy Ngulube and Others(3)
In that case, Chief Justice Silungwe (as he then was) outlined the
law relating to proof of special damages as follows:
“It is, of course, for any party claiming a special loss to
prove that loss to do so with evidence which makes it
possible for the Court to determine the value of that loss
with a fair amount of certainty.
As a general rule,
therefore, any shortcomings in the proof of a special loss
should react against the claimant. However, we are aware
that in order to do justice, notwithstanding the
indifference and laxity of most litigants, the Courts have
J10
(358)
frequently been driven into making intelligent and
inspired guesses as to the value of special losses on
meager evidence. In this case, it would have been easiest
thing to call an expert witness, but the first plaintiff chose
not to do so. The result is that the evidence presented to
the Court was unsatisfactory, and, in our opinion, the
Learned trial Judge would have been entitled either to
refuse to make any award or to award a much smaller sum,
if not a token amount in order to remind litigants that it
is not part of the Judge’s duty to establish for them what
their loss is”.
Ground 3 was argued in alternative to Ground 2. The argument is
that the Deputy Registrar in awarding damages for loss of business,
failed to appreciate and understand that the loss of business was
not specifically pleaded as to be assessed in view of the Consent
Judgment dated 24th June, 2008.
In support of this contention, Learned Counsel for the Appellant
cited the case of Attorney-General vs. D. G. Mpundu(4) which also
considered the effect of not appealing against a Ruling of the
Deputy Registrar on a preliminary objection on assessment. In this
case this Court stated as follows:
“It follows from what we have said above that the Deputy
Registrar erred in overruling the Appellant’s preliminary
objection but only to the extent that the Respondent was
allowed to lead evidence to prove special damages which
J11
(359)
had not been specifically pleaded in the Statement of
Claim”.
In the present case, the claim for damages for loss of business was
not outlined in the paragraphs of the main body of the Statement of
Claim, but only in the prayer. The question therefore is whether
this claim for loss of business was specifically pleaded as to entitle
the Deputy Registrar to let in evidence of such loss.
In the
Attorney-General vs. D. G. Mpundu case(4), this Court recast the
law as follows:
“It is thus trite law that, if a plaintiff has suffered damage
of a kind which is not necessary and immediate
consequence of a wrongful act, he must warn the
defendant in the pleadings that the compensation claimed
would extend to this damage, thereby showing the
defendant the case he has to meet and assisting him in
computing a payment into Court.
The obligation to
particularize his claim arises not so much because the
nature of the loss is necessarily unusual but because a
plaintiff who had the advantage of being able to base his
claim upon a precise calculation must give the defendant
access to the facts which make such calculation possible”.
It
is
the
Appellant’s
contention
that
the
Deputy
Registrar
misdirected himself in law by letting in evidence of loss of business
J12
(360)
when same was not specifically pleaded and particularized as
envisaged by law and the Consent Judgment.
In further support of this proposition, Learned Counsel cited the
English case of Hayward and Another vs. Pullinger and
Partners Limited(5) which outlined the law as follows:
“The Pleading alleges the contract and breach. It does not
contain any paragraph specifically alleging damages, but
in the prayer there is a claim for damage for wrongful
dismissal. It is conceded by Counsel for the plaintiffs, and
I think rightly, that he cannot recover in respect of any
special damage unless that special damage is pleaded……..
It is of course, when damage is alleged in general terms,
for an application to be made to obtain particulars of the
special damage, if any, relied on, but there can be no
obligation to ask for such particulars and I think the true
position is that, unless they are contained in the
Statement of Claim, evidence leading to damage in respect
of which damages are claimed cannot technically be relied
on at the trial”.
It was the Appellant’s view that the Respondent’s claim for loss of
business, having not been specifically pleaded and particularized in
the Statement of Claim, the Deputy Registrar faulted in letting in
evidence to prove the loss of business.
J13
(361)
The Appellant’s argument in support of Ground 4 was related to the
argument in Ground 3. This is that, the Deputy Registrar erred in
law by awarding the Respondent the sum of K908,000.00 as refund
of Bank charges, which claim was totally new and was not
specifically pleaded for purposes of assessment as agreed by the
parties in their Consent Judgment; that the refund of the Bank
charges was not mentioned in the Statement of Claim and in the
Consent Judgment.
Further, none of the Respondent’s witnesses led evidence at
assessment, to the effect that the Appellant had wrongfully
deducted Bank charges from its Bank Account. It was therefore the
Appellant’s contention that this award should not have been made.
In opposing this appeal, Learned Counsel for the Respondent also
relied on the arguments in the Respondent’s Heads of Argument. In
response to Ground 1, it was submitted that the Deputy Registrar
was on firm ground when he awarded the Respondent damages in
the sum of K201,606,104.54 for loss of use of seized monies; that
the Appellant’s argument that the award was made in the absence
J14
(362)
of relevant and satisfactory evidence to prove the loss, was vague
because no such evidence is disclosed.
It was stated that the
Deputy Registrar relied on the Bank Statement which clearly shows
inflows and outflows of money in the Respondent’s Bank Account;
and the Deputy registrar did not err when he took into
consideration the net month end balances for seven (7) months to
arrive at a monthly average on the basis of figures reflected on the
Bank Statement. That the Deputy Registrar did the best he could
by taking into consideration the net monthly balances on the Bank
Statement because the Respondent’s loss cannot be proved with
certainty as it arose from the denial of use of the funds which were
presumed to be used by the Bank when it was unnecessarily
withheld.
In support of this argument, the Respondent cites the English case
of Chaplin vs. Hicks(6) where it was held that the fact that damages
cannot be assessed with certainty does not relieve the wrongdoer of
the necessity of paying damages.
J15
(363)
On Ground 2, it is the Respondent’s contention that the Deputy
Registrar was on firm ground when he awarded K30,942,780.00
damages for loss of profits; that this award was based on the
evidence of PW2, Mumbwali Simuzimbili, which was not challenged;
and the Appellant never brought to the attention of the Court any
relevant and satisfactory evidence to prove otherwise. It was stated
that PW2 prepared the Respondent’s accounts and financial
statement and arrived at the net profit after all the expenses that go
with business, including tax obligations were deducted from the
monthly income; the net profit was found to be K5,157,130.00 per
month which the Deputy Registrar multiplied by six months (as
opposed to 18 months).
It was argued that the Appellants
argument in support of Ground 2 was misplaced and a total
misdirection.
On Ground 3, it is the Respondent’s contention that the Appellant
had raised the same issue; namely, that the claim for loss of
business was not specially pleaded, in a preliminary issue before
the Deputy Registrar before the assessment and a ruling was
J16
(364)
delivered to the effect that the Respondent’s claims were general
damages which did not require to be specially pleaded. There was
no appeal against that ruling; and it was the Respondent’s
argument that the Appellant cannot now raise the same issue,
when they accepted the Deputy Registrar’s ruling by withdrawing
their appeal.
On Ground 4, it is argued that only special damages like out of
pocket expenses required specific pleading; and not general
damages like refunding of Bank charges which did not require to be
specially pleaded. It is further argued that the Deputy Registrar did
correctly observe that there was a pleading on behalf of the
Respondent, under the head of “any other relief” under which the
refund of Bank charges was ordered and awarded. The reasoning of
the Deputy Registrar was valid because an injustice was caused to
the Respondent by the Appellant by unilaterally closing the
Respondent’s account and seizing the money; to lend to other
customers for profit over a period of 18 months.
J17
(365)
Learned Counsel for the Respondent urged us to dismiss this
appeal for lack of merit on all four (4) grounds.
We have carefully examined the record of appeal and considered the
grounds advanced, together with the arguments canvassed in the
respective heads of Argument and the authorities cited. We have
also considered the Ruling of the Learned Deputy Registrar
appealed against.
We propose to deal with grounds 1 and 2 together as they are
related.
The main contention in these two grounds is that the
Learned Deputy Registrar fell in error by awarding the sums of
K201,606,104.54 and K30,942,780.00 respectively, as damages for
loss of seized money and damages for loss of business, by entirely
and exclusively relying on the average net credit and debit balance
entries in the Respondent’s Bank Statement of Account and on the
deposits made in the Respondent’s Bank Account over a period of
seven months; in the absence of relevant and satisfactory evidence
to prove those losses in the circumstances of this case.
J18
(366)
At page 8 (lines 3-5) of the Ruling appealed against (at page 11 of
the Record of Appeal), the Learned Deputy Registrar states as
follows:
“Therefore
taking
the
credits
and
debits
into
consideration, the seven month-end net balances as per
exhibits
“JS3”
(Statement
of
Account)
totaled
K235,207,122.00 and the average was thus calculated at
K33,601,017.42.
……..It would follow therefore, that the loss of use of the
money at monthly average of K33,601,017.42 would be
multiplied by six months……. Therefore, the award under
this head, loss of use of money is K201,606,104.54”.
With regard to the award of K30,942,780.00 as damages for loss of
profit, the Learned Deputy Registrar states at pages 8 and 9 of the
Record of Appeal:
“The second claim by the plaintiff was for loss of profit.
This Court considered the method that the plaintiff used
to arrive at the amount of K5,157,130.00 as average profit
per month. The defendant did not have any opposition….
……This Court finds the average profit of K5,157,130.00
per month as reasonable and the method used to calculate
the loss of profit was correct. The plaintiff is hereby
awarded that amount as the average monthly profit…. The
amount awarded therefore is K30,942,780.00”.
J19
(367)
It is apparent from the foregoing that the Learned Deputy Registrar
only considered the oral evidence adduced by the plaintiff during
the assessment and discounted the Respondent’s objections. This
evidence was given by PW2, Mumbwali Simuzimbili, who prepared
an audit of the Respondent’s Financial Statements which were
admitted in Court as part of the affidavit evidence exchanged
(exhibit “JS2”). This document is entitled GrainCom Investments
Limited, Financial Statements, 31st March, 2007 (under Walis
Chartered Accountants) (pages 75-86 of the Record of Appeal). In
his Ruling at page R8 afore-quoted, the Learned Deputy Registrar
makes no reference to the Respondent’s Financial Statements, but
specifically refers to the “seven month-end net balances per exhibits
“JS3” (Statement of Account)”.
Exhibits collectively marked “JS3”
appear on pages 33 to 45 of the record.
These are handwritten
receipts issued to a number of Cooperative Societies and a Young
Farmers Club for the purchase of grain bags, seed maize and
fertilizer. We find this approach to be curious and extraneous
J20
(368)
because those receipts on their own are irrelevant to the process of
determining the average monthly net profit for a business.
The correct approach, in our view, should have been to refer to the
Respondent’s Financial Statements of Account which were already
before the Court as exhibit “JS2”.
(Pages 75-86).
This report
clearly shows that the profit for the year ending 31st March, 2007,
was K34,812,657.
We agree with Learned Counsel for the Appellant that had the
Learned Deputy Registrar properly directed his mind to the
evidence in the Respondent’s Financial Statements approved by the
Respondent’s Board of Directors on the 24th July, 2008, he would
have found that the Respondent’s annual profit for the year ending
31st March, 2007, was K34,812,657 and therefore that the average
monthly net profit was not more than K2,901,054.75.
The monthly net profit factor permeates both Grounds 1 and 2 of
the appeal in that the calculations approved by the Learned Deputy
Registrar took into consideration the incorrect figure of
J21
(369)
K5,157,130.00 as the average profit per month. Inevitably, this was
a misdirection because the available evidence did not support the
findings of the Learned Deputy Registrar.
The other factor used by the Learned Deputy Registrar in arriving at
the quantum of damages for loss of use of the money seized and
loss of profit is the six months multiplier period as opposed to the
entire period of 18 months that the Respondent’s Account was
under embargo. The Respondent’s argument was that an injustice
was caused to them by the Appellant unilaterally closing the
account and seizing the money. We must state that this position is
without contest. However, it is pertinent to observe that ‘redress’
must follow both the evidence and the rules; and should, in itself,
not lead to unjust enrichment.
This is the ratio of this Court’s
decision in the case of Eastern Cooperative Union Ltd. vs.
Yamene Transport Ltd.(7) which adopted what the Learned
authors of Clerk and Lindsell on Torts, 13th edition, paragraph
337, as follows:
J22
(370)
“337. It has been pointed out that no one is answerable
indefinitely for the consequences of his actions, but that
at the time he may well be saddled with responsibility for
greater injury than he expects. Somewhere a line has to
be drawn between the consequences for which a wrongdoer
is liable and those for which he is not…”.
The Learned Deputy Registrar made it clear in his Ruling, that he
based his decision to limit the period of liability to six months as
opposed to 18 months, one the afore-quoted authority. That is the
correct approach to the issue of liability, and we approve of it. This
approval, notwithstanding, does not alter the misdirection in the
manner the quantum was calculated in the awards contested in
Grounds 1 and 2.
We take cognizance that all the Respondent’s claims were
pecuniary; and could easily be quantified based on evidence
adduced. The Learned Deputy Registrar had a duty to receive and
consider all the necessary evidence which would assist in making
the assessment of what was due to the Respondents; this included
the uncontested Financial Statements and the Respondent’s Bank
Statement of Account. These Statements appear on pages 78 to 85
of the Record of Appeal under the Title “GrainCom Investments
J23
(371)
Limited, Financial Statements, 31st March, 2007”. At page 79 of the
record is the approval of the Statements by the Board of Directors
on 24th July, 2008.
Failure by the Learned Deputy Registrar to
consider these important documents that were readily available on
the record and, instead, to place reliance on the oral evidence given
by PW2 (Mumbwali Simuzimbili), was a serious misdirection that
calls for our interference with the findings; on the ground that the
awards were extraneous to the evidence and inordinately too high
for a cause that was largely settled without trial. We see no need
for us to deal with the other limbs of the arguments in support of
Grounds 1 and 2 as they are peripheral. We find merit in these two
grounds of appeal.
As already indicated, Ground 3 was argued in the alternative to
Ground 2. The Ground attacks the award of damages for loss of
business when such loss of business was not specially pleaded as
to be assessed in view of the Consent Judgment. We have found
merit in Ground 2 in so far as the manner the calculation of the
quantum of damages was done. As for the argument that loss of
J24
(372)
business should have been specially pleaded, we do note that the
circumstances of this case clearly indicate that the seized Account
was a business Account and therefore, that loss of business was
within the contemplation of the parties when the Account was
seized and kept away from the Respondent’s access.
We do not
agree with the Appellant’s contention that loss of business should
have been specially pleaded.
However, we do note that during
assessment the Respondent’s witness (PW2) testified that there was
a loss on its business because it did not have money to meet
various orders.
No evidence was adduced to prove those orders.
The Appellant’s contention is that failure by the Respondent to
produce evidence of their failed orders should have reacted against
the Respondent.
We agree with the Appellant’s position.
The
Learned Deputy Registrar’s award should have shown consideration
for the specific failed orders in order to ease up the assessment
under this head. Without this consideration, there is no defining
line between damages for loss of profit and damages for loss of
business. We agree that the Learned Deputy Registrar’s approach
J25
(373)
in assessment under this head was unbalanced and tended to
duplicate the award. The Appellant’s fear that those awards may
result in unjust enrichment of the Respondent, was well based. In
our view, the Respondent’s failure to provide proof of the failed
orders should have resulted in a nominal award; divorced from
being based on the monthly average net profit of K2,901,054.75. To
this extent, we find partial merit in Ground 3.
Ground 4 attacks the award of the sum of K908,000.00 as refund of
Bank charges. The argument is that this claim was totally new and
had not been pleaded in both the Writ of Summons and in the
Statement of Claim; and that it was outside the Consent Judgment.
The Respondent’s argument is that refund of Bank charges did not
require to be specially pleaded; and, in any event the Learned
Deputy Registrar did correctly observe that there was a pleading on
behalf of the Respondent, under the head of “any other relief” under
which the refund of Bank charges was awarded.
While we agree with the Respondent’s contention that refund of
Bank charges need not be specially pleaded in the circumstances of
J26
(374)
this case where, at the centre of the dispute is a Bank Account that
was unilaterally seized and kept away from the owners, it was
necessary
that
the
award
should
be
backed
by
evidence;
particularly in the case where the entire seized money together with
the accrued interest were returned to the Respondent by consent of
the parties.
We wonder where the Learned Deputy registrar
obtained the figure of K908,000.00
both the Consent Judgment
and the evidence before the Learned Deputy Registrar clearly
establish that the Account, which held K49,105,561.10, was
returned in full, to the Respondent together with costs and accrued
interest. We hold that the award of K908,00.00 as refund of Bank
charges
was
extraneous,
unsupported
by
hopelessly wrong that we must set it aside.
evidence
and
so
We accordingly find
merit in Ground 4.
As for interest, we note that the accrued interest on the sum of
K49,105,561.10 was refunded together with the seized money,
through head (iii) of the Consent Judgment, which reads as follows:
J27
(375)
“(iii).
K2,507,747.01 as accrued interest from the date of
commencement of the action to the date the seized
money was returned; being 10th May, 2007 to 21st
July, 2008”.
On the other hand, the Learned Deputy Registrar made the
following order on interest:
“4.
Interest at short term deposit rate from the date of the
Writ to the date of Judgment and thereafter, at current
average Bank rate from the date of Judgment to the date
of full payment and costs”.
In view of the foregoing positions, we find it necessary to give
further guidance in this case.
This is that, the Learned Deputy
Registrar should clearly discount the interest already agreed and
settled by consent; so as to avoid penalizing the Appellant twice in
interest; and that no interest should further be payable on interest
already paid.
The net result is that this appeal has merit and we accordingly
allow it. We order that this matter be sent back for reassessment
before the Learned Deputy Registrar; taking into account the legal
principles and guidelines to which we have referred. We will make
J28
(376)
no order for costs, as these were specifically dealt with in the
Consent Judgment that preceded the assessment.
(RETIRED)
E. L. SAKALA
CHIEF JUSTICE
L. P. CHIBESAKUNDA
ACTING CHIEF JUSTICE
G. S. PHIRI
SUPREME COURT JUDGE
J29