No. S.C. 35/2002
Appeal No. 93/01
MINISTRY OF ENVIRONMENT AND TOURISM
COURT OF ZIMBABWE
JA, SANDURA JA & CHEDA JA
MARCH 4 & MAY 28, 2002
for the appellant
for the respondent
JA: This is an appeal against the decision of the High Court
awarding the sum of $30 664.01 for damages to the rented
residence that was occupied by the appellant on his tour of duty in
It is common
cause that the appellant was a foreign attaché based in London from
18 July 1989 to May 1993.
the end of his tour of duty he vacated a house that had been rented
for him by the Zimbabwean High Commission.
he left no check was carried out on the condition of the house and
the property therein. The check-out inventory was only
he had left. It is also common cause that attempts to have him on
the premises for the purpose of carrying out a check
successful and he left London with the keys to the property, only to
send them back from Zimbabwe some days later.
The list on
Annexure A shows that a lot of property was damaged in the
house. This is confirmed by the evidence of Mr Chuma
(Chuma), who also detailed the damage that he saw in the house.
court was therefore justified in finding that there was damage caused
to the property.
his evidence, the appellant admits the damage to the carpet but
denies damages to other items. On the microwave, he said he
in working condition. He could not explain how it could have got
damaged within four days after his departure, especially
as he had
kept and taken the keys with him. He could not explain how some
beds got broken. The trial court was therefore correct
Chumas evidence on the damage to the property.
therefore no doubt that the appellant was responsible for the damage
and liability for it was sufficiently proved.
issue to be resolved is the amount of damages claimed.
appellant argued that the damages were not proved. He quoted from
the record where the trial judge said at p 4 of the
am unable to specify in detail the extent of the damages caused or
indeed the cost of restoring all the loss that was occasioned
most circumstances that inability would be fatal to a claim such as
appellant also quoted the following cases in support of his argument
Pillay v Krishna &
Anor (1946) at 591
(the citation of this case is incomplete) and Constantine
Line v Imperial Smelting Corporation
(1942) AC at 174.
appellant was aware before his departure from London that attempts
were being made to inspect the property in his presence.
frustrated all efforts to carry out any checks. He kept the house
locked until he took the keys with him to Zimbabwe. It
that he would not let either the owner of the house or the staff of
the High Commission of Zimbabwe establish the extent
of the damage to
when confronted with particulars of the damage he could not give any
his absence a representative of the High Commission, Chuma, went to
check on the property with the owner and established that
he mentioned at the trial were damaged. These are referred to in
said the original claim was above £10 000.00, but he negotiated
with the owner and they settled on a compromise
figure of £3 780.47
(three thousand seven hundred and eighty pounds and forty-seven
the appellant argues that this figure was not proved, I should point
out that Chuma went and made a physical inspection of
The value of the damages was discussed in detail before a compromise
was reached. The figure agreed is far less
than what was claimed.
There is no way of proving a figure that has been negotiated and
agreed. In any case, all that the respondent
seeks to recover is
the amount that the respondent paid to the owner of the property.
The voucher filed with the papers is sufficient
proof of that amount.
did not just consent to paying the above amount but first satisfied
himself that it was in fact an appropriate figure
to pay for the
damages. He negotiated and settled the figure on behalf of the High
Commission and this is what the respondent paid.
cannot find any fault with this arrangement, neither has it been
shown that his assessment was faulty. The appellant deprived
himself of the opportunity to have the damages discussed in his
presence. It does not assist him to simply argue against this
in view of the details of the damages stated in the evidence.
trial court was satisfied with Chumas evidence and its
credibility. Its finding cannot be faulted. On the other hand,
there was nothing from the appellant to suggest that the value of the
damages could have been less than this figure.
the result, the trial courts findings and conclusion cannot be
faulted or interfered with.
appeal is dismissed with costs.
JA: I agree.
H Chitapi & Associates,
appellant's legal practitioners
Division of the Attorney-Generals Office,
respondent's legal practitioners