IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 1119 OF 2003
BETWEEN:
JAMES B. MASONGA …………………………………………………..PLAINTIFF
AND
SANI TYRES LIMITED ………………………………………………DEFENDANT
CORAM : TEMBO, ASSISTANT REGISTRAR
Mambulasa, Counsel for the Plaintiff
This is this court’s order on the assessment of
damages herein. The assessment was done
pursuant to a default judgment entered in favour of the plaintiff on the plaintiff is claim for damages for detinue,
conversion and loss of business herein.
The notice of hearing of the assessment was duly served on the defendant who never made any appearance at the hearing of the assessment. That means the plaintiff’s evidence is uncontroverted.
On 1st April, 2003 the defendant’s agents
Mr Campbell and others went to a garage where the plaintiff’s car was
undergoing minor repairs and took the keys of the plaintiff’s car. The defendants’ agents claimed that the
tyres fitted on the plaintiff’s vehicle belonged to the defendant. The
defendant’s agents took the keys to the plaintiff’s vehicle demanding that the plaintiff pay the price of the
tyres. The defendant’s agent Mr
Campbell, kept the keys for the plaintiff’s vehicle from that day the 1st April
2003 to 11th April, 2003 when he
finally returned the keys to the plaintiff. The plaintiff did not have any duplicate keys and for the time
when the keys were being kept by Mr Campbell the plaintiff could not use his
vehicle.
Actually on 1st April, 2003 the plaintiff’s
vehicle had been hired by a Mr Tambala to ferry people to a funeral at a charge
of K18,000.00 but that venture was frustrated by the defendant’s agents
wrongfull possession of the keys to the plaintiff’s vehicle. The plaintiff had to pay back the K18,000.00
to Mr Tambala. The plaintiff was using
his vehicle for hiring business and used to make around K5,000.00 per day. He did not though inform this court how much of the K5,000.00
went into operating expenses.
It is clear to this court that the plaintiff clearly
lost out the K18,000.00 that he had charged and had been actually paid to him
but which he refunded Mr Tambala
consequent upon the defendant’s agents acts herein. The sum of K18,000.00 is therefore awarded to the plaintiff for
the particular loss of business occasioned to him on 1st April,
2003. It is also clear that the
defendant is liable in damages for detinue ie the unlawful detention of the
keys herein from 3rd to 11th April, 2003 as claimed by
the plaintiff.
That detention of the keys caused the plaintiff to
fail to engage his vehicle in the hiring business for a period of 9 days. The measure of damages should therefore be
the business inconvenience to the plaintiff.
These damages ought only to be for detinue as there is no evidence of
conversion but only detinue . These two
torts nevertheless overlap.
The tort of trespass also overlaps with that of
detinue as detinue necessarily involves trespass. This court will award damages for trespass but not on the
aggravated scale as there is no
evidence aggravating the trespass herein.
As already stated earlier on the most convenient
measure of damages for detinue herein is the level of business inconvenience
occasioned to the plaintiff by Campbell’s detention of the key to the plaintiff’s vehicle. That is represented by the loss of use of
the vehicle by the plaintiff for the 9 days between 3rd and 11th
April, 2003. This court is aware that
the plaintiff was making about K5,000.00 per day from hiring out his
vehicle. But no indication was made as
to whether that was after deduction of
operating expenses or not. This court
also notes that the value of the kwacha has since fluctuated since the time of
the wrong herein. Further, damages for
loss of use are at large and depend on the particular circumstances of the case
under consideration. See Chinema
v World Vision International Civil cause Number 1097 of 1991.
In the present case this court is of the view that
the appropriate award consideration of all the circumstance above ought to be
K60,000.00 for detinue. The sum of
K60,000.00 is therefore awarded to the plaintiff as damages for detinue. As for the trespass the sum of K10,000.00 is
awarded to the plaintiff.
Costs of this action are also awarded to the
plaintiff who has wholly succeeded herein.
Made in Chambers at Blantyre this ……….day of April, 2004.
M. A. Tembo