Civil procedure – Distinction between heads of damages and heads of tort – Liability must be established before heads of damages may be considered
Civil procedure – Whether co-plaintiffs can advance wrongful eviction claims under a co-plaintiff’s action for trespass
Evidence – Approach of appellate court towards findings of lower court based on the credibility of a witness
Beatrice Chileshe Sinyangwe, owned property in Makeni known as subdivision 13 of subdivision C of farm no. 401a. A man named Albert Sinyangwe owned property known as subdivision 377 of farm no.401(a) and mortgaged his farm to the 1st Respondent, to secure certain sums of money which he had borrowed. In 2000, the 1st Respondent obtained judgment from the High Court in a mortgage action for possession and sale of Albert Sinyangwe's property. On 14th August, 2001, the Sheriff of Zambia was inadvertently directed by the 1st and 2nd Respondents to Beatrice Sinyangwe's property where the Sheriff proceeded to evict all occupants on the property and threw out all the goods. The 1st Respondent then placed guards from the 3rd Respondent on the property, who then ensured that none of the occupants went back thereon. Beatrice Sinyangwe made representations to the 1st Respondent and was able to demonstrate that, in fact, execution had been effected on the wrong property. On 16th August, 2001, she, together with the other occupants of the property, moved back thereon.
The following year Beatrice Sinyangwe and the occupants of her property commenced an action predominantly pleaded on the tort of trespass to the property, with the exception of a claim for trespass to goods. No attempt was made to give particulars as to the nature of the claim or claims that each plaintiff was prosecuting against the defendants. Some of the occupants claimed to each have lost specific sums of money. The occupants also produced a
schedule of missing or damaged property. Lastly the occupants also claimed to have been wrongfully or illegally evicted. The High Court substantially awarded the claims by Beatrice Sinyangwe but dismissed all the claims of the other Plaintiffs. The other occupants were found not to have locus to maintain an action for wrongful eviction. Also, all household goods were deemed to be in the legal possession of Beatrice Sinyangwe and only she was awarded damages for trespass to the goods. The other occupants appealed.
Held:
1. Mental distress or inconvenience are not recognised heads of tort but are heads of
damages that are recoverable after a party has proved liability for a tort or breach of
contract. Hence, one cannot claim them without first proving the commission of a tort or
the breach of a contract.
2. In this case, the claims by the Appellants for damages arising out of the wrongful eviction
were defeated simply because they were prosecuted under the umbrella of Beatrice
Sinyangwe's action for trespass to her property. Certainly, that tort of trespass was very
restrictive of the Appellants. In this case, not only Beatrice Sinyangwe but all the
occupants on the property suffered consequences of the eviction. That eviction was an
action which directly and immediately flowed from the 1st Respondent's execution of a
court judgment on the wrong property. The execution on the wrong property arose from
want of due care by the 1st Respondent and its agents in identifying the property which
was the subject of the court's judgment. There were no better circumstances than these
in which to apply the “neighbor” test propounded in Donoghue v Stevenson. Alas, that
was not to be, as the claims were prosecuted under the umbrella of Beatrice
Sinyangwe's action for trespass to her property. The Appellants cannot now blame the
court below for deciding the whole matter predominantly under the tort of trespass to
Beatrice Sinyangwe’s property.
3. An appellate court will be slow to interfere with findings which are based on the credibility
of the testimony presented. In this case, what militated heavily against Kaleb
Sinyangwe's evidence of his business industry was his conduct after the loss of his
money. It was very strange that a person who loses a sum of money that Kaleb
Sinyangwe is said to have lost cannot immediately report the loss to the police or
complain about it to the 1st Respondent. The court below was on firm ground to find that
the conduct of Kaleb Sinyangwe far outweighed the evidence that he had presented.
Hence, the court was entitled to disbelieve the evidence presented to support Kaleb
Sinyangwe's version of the story.
Appeal dismissed