IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.

172/2021
\l'ouc OF lAMs,
HOLDEN AT NDOLA

-� ·75F
/�OFAP�

(Civil Jurisdiction)

BETWEEN:
�Gist�
·O. Box soob7. \.\lt.,
BENSON MWILA (Suing in his capacity as a er 1ST APPELLANT
of the deceased Topman Mwila}

SUSAN LOMBE (Suing in her capacity as mother 2ND APPELLANT

of the deceased Topman Mwila}

AND

ATTORNEY-GENERAL RESPONDENT

CORAM: KONDOLO SC, NGULUBE AND SHARPE - PHIRI, JJA.

On 24th August, 2023 and 31 st August, 2023.

For the Appellant: Mr. M.R. Mumpa - Messrs. M. R. Mumpa and Associates

For the Respondent: Mr. C. Watopa & Ms. M. Katolo- Attorney - General's
Chambers

JUDGMENT

NGULUBE, JA, delivered the Judgment of the Court.

Cases referred to:

1. Donoghue vs Stevenson (1932) AC 562

2. Anns vs London Borough of Merton (1977) 2ALL ER
3. RV Inland Revenue Commission exparte National Federation of Self
Employed and Small Business Limited (1 F 17
C Aiv161,.q
\}'6\_\
i\.�o\lQ' �f M'"�"I �
4. Wilson Masauso Zulu vs Avondale Housing Project Limited (1982)
ZR172
5. Smith vs Baker & Sons [1891] AC 325

Legislation referred to:

1. The Constitution of Zambia (Amendment Act) of 2016
2. The Intestate Succession Act, Chapter 59 of the laws of Zambia.

Other works referred to:

1. Halsbury's Laws of England, 4th Edition Volume 34.

1.0 INTRODUCTION

1.1 This appeal is against a judgment of the High Court delivered

by the Honourable Mrs Justice M. Mapani- Kawirnbe (as she

then was) on 29th January, 2021.

1.2 By that judgment, the Court dismissed the appellants' claims

for compensation and damages for lack of merit. The Court

found that the appellants had failed to prove that the

respondent acted negligently.

2.0 BACKGROUND

2.1 The background to this appeal is that on 6 th March, 2020, the

appellants who were the plaintiffs in the lower Court

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 commenced an action by writ of summons and statement of

claim against the respondent, (the defendant in the lower

Court) seeking the following reliefs-

(i) Compensation for loss of life 1n the sum of

Kl ,200,000.00

(ii) Damages for negligence arising from cause of death

(iii) Costs incidental to these proceedings

(iv) Any other reliefs the Court may deem fit and just.

2.2 The appellants' contention in the lower Court was that

Constable Daka (the 1st Defendant in the Court below) while

on duty as a police officer, negligently shot the deceased

Topman Mwila. It was alleged that Constable Daka was

negligent as he mishandled the firearm which he cocked

among a crowd which gathered and was unarmed at a car

wash. That Constable Daka failed in his duty to protect lives of

innocent people as mandated to do so by the state.

2.3 The respondent filed a Defence on 22nd September, 2020 and

averred that on 24th September, 2018, Nkana Water and

Sewerage Company (NWSC) employees went to Buchi

Township with a Police officer, Constable Chrispine Daka, for

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 the purpose of fixing a punctured water pipe. Upon arrival at

the place, they found an illegal car wash with several young

men washing motor vehicles there. When they saw the NWSC

employees in the company of a Police officer, the young men

became incensed and attacked Constable Daka. He tried to

warn the young men but in the process, the deceased, Topman

Mwila attempted to grab the firearm from the Police officer and

in the process, the deceased was accidentally shot dead. It

was averred that the deceased contributed to his death and

died by misadventure.

2.4 The matter was set down for trial and the appellants called

their witnesses. The first one was Howard Lombe, PWl, whose

testimony was that he was at the car wash on the fateful day

and as he waited for his car to be washed, some employees

from NWSC arrived to fix a broken water pipe. PWl stopped

them from fixing the pipe. The employees left and returned

with a Police officer who was armed with a firearm and

instructed the young men to stop washing the motor vehicles.

He subsequently rebuked Topman Mwila for ignoring his

instructions.

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2. 5 Soon thereafter, PW 1 heard a firearm go off and later realized

that Topman Mwila had been shot dead because he saw him

lying in a pool of blood. PW 1 did not see the Police officer shoot

the deceased because he lay down and covered his face. The

deceased was rushed to the hospital where he was pronounced

dead.

2.6 The respondent called two witnesses. The first was Constable

Chrispine Daka who shot the deceased. His testimony was

that on the fateful day, he accompanied NWSC employees to

Buchi Township where they were going to fix a damaged pipe.

Upon arriving there, DWI saw an angry mob who threw stones

and empty bottles at the NWSC employees.

2. 7 Constable Daka tried to calm the situation down but the

young men became unruly. They surrounded him and in the

process, he cocked his gun. One of the young men threw a

stone at the Police officer and it hit the gun which tilted and

went off, resulting in the shooting of Topman Mwila. According

to the Police officer, the deceased's death was accidental and

was not as a result of negligence.

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2.8 DW2's evidence was that his team went to the car wash to

repair the lea.king pipe. There were five to six young men who

after mobilizing their friends prevented the NWSC employees

from repairing the pipe. That there were about twelve people

in total who approached the NWSC employees and slapped one

of them. His further evidence was that when he returned to

the car wash with a police officer, some of the young men

followed the police officer and started beating him. That the

police officer wanted to raise the gun but the deceased,

Topman Mwila went in front of him as he wanted to deflect the

gun but it went off.

3.0 DECISION OF THE LOWER COURT

3. 1 The lower Court considered the pleadings and the evidence

before it and came to the conclusion that Topman Mwila was

shot dead by DW 1, Constable Daka. The Court further found

that the NWSC employees and Constable Daka were

confronted by an angry mob at the car wash. The Court

accepted the evidence that the Police officer and the NWSC

employees were attacked and beaten up by the mob and that

the deceased Topman Mwila tried to grab the firearm from the
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 Police officer and m the process, he was accidentally shot

dead.

3.2 The lower Court found that the deceased put himself in harm's

way when he attacked and wrestled the firearm from the Police

officer. The Court concluded that the appellants failed to

prove that the deceased acted negligently and went on to

dismiss their claims for compensation and damages for lack of

merit.

4.0 THE APPEAL

4.1 The appellants were dissatisfied with the judgment of the High

Court and have appealed to this Court, advancing three

grounds of appeal couched as follows-

1. The Court below erred both in law and fact when in

fact there was cogent evidence pointing to the fact
that Constable Daka acted negligently when he
disregarded the normal police procedure of normal
safety precaution when handling a firearm in every
situation.
2. The learned trial Judge in the Court below erred
both in law and fact when she heavily relied on the
evidence of DWl and DW2 and failed to take into

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 account that the said wi.tnesses DWl and DW2 had
their own interests to serve.
3. The Court below erred both in law and fact when the
Court held that the case was fundamentally flawed
in that the plaintiffs came to Court in their
capacities parents and not as administrators.

4.2 Prior to the hearing, counsel for the appellants filed heads of

argument which they relied upon, with brief augmentation.

4.3 Arguing ground one, Counsel for the appellants submitted that

in cases of negligence, the· question that the Court must

determine is whether the defendant was in breach of his duty

of care and whether the said breach caused damage to the

plaintiff. Our attention was drawn to the case of Donoghue vs

Stevenson1 , where it was stated that-

"You must take reasonable care to avoid acts or

omissions which you can reasonably foresee
would be likely to injure your neighbour. Who,
then, in law is my neighbour? The answer seems
to be - persons who are so closely and directly
affected by my act that I ought reasonably to
have them in contemplation as being so affected
when I am directing my mind to the acts or
omissions which are called in question."

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4. 4 The case of Anns vs London Borough of Merton2 was

referred to, on the issue of whether there was sufficient

relationship of proximity or neighbourhood between the

deceased and the Police officer on the duty of care and

whether there are any considerations that can negate or limit

the duty of care.

4.5 It was submitted on behalf of the appellants that Constable

Daka owed a duty of care to the deceased and that the breach

of the said duty resulted in the death. The Court was urged to

allow ground one of the appeal for the aforestated reasons.

4.6 In arguing ground two, it was submitted that the learned trial

Judge misdirected herself by failing to take into account the

fact that the deceased was a school boy who was still under

the custody and care of the appellants, his biological parents

and he did not own any property that would form part of his

estate.

4.7 Counsel submitted that Courts should act judiciously and

judicially when exercising their discretion and function.

According to counsel, the lower Court should not have focused

on whether the appellants had locus standi in the matter. Our

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 attention was drawn to the case of R vs Inland Revenue

Commission exparte National Federation of Self

Employed and Small Business Limited3 where Lord Roskall

guided that-

"The term interest should perhaps be given as

including any connection, association or
interrelation between the applicant and the
matter in which application relates."

4.8 Counsel went on to contend that the lower Court fettered itself

with procedural rules contrary to the Constitution of Zambia

(Amendment Act) of 2016.

4.9 Counsel submitted that there was no conclusive evidence on

record that there was an angry mob nor did any of the

witnesses state who pulled the trigger and consequently led to

the death of Topman Mwila.

4.10 Counsel contended that, Constable Daka acted negligently

regarding the use, control and custody of the firearm and

consequently breached his duty of care to the deceased.

Counsel argued that Constable Daka's testimony was marred

with inconsistent accounts of what transpired on the material

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 day. We were urged to allow the second ground of appeal for

the aforestated reasons.

4.11 Turning to ground three, it was submitted that the lower Court

failed to assess and evaluate the evidence on record and

erroneously concluded that the appellants failed to prove that

the respondent was negligent in the circumstances. Counsel

maintained that there was no conclusive evidence on record

that DWl was attacked by a mob and that he was m a

precarious position whose circumstances led to the death of

the deceased. The case of Wilson Masauso Zulu vs

Avondale Housing Project Limited4, was referred to, where

Supreme Court guided that-

"An appellate Court will only reverse findings of

fact made by the trial Judge if it is satisfied that

the findings in question were either perverse or

made in the absence of any relevant evidence or

upon misapprehension of the facts."

4.12 It was submitted that the lower Court made perverse findings

of fact regarding the evidence of PW1, that his presence at the

car wash that fateful day was questionable and that he

appeared to have had another motive for being there because

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 of the way he reacted after the deceased was shot. We were

urged to reverse the learned trial Judge's findings of fact which

were allegedly erroneous and not supported by the evidence on

record. Counsel urged us to allow the appeal.

5.0 THE COURT'S DECISION ON APPEAL

5.1 We have considered all the evidence on record, the judgment

appealed against as well as the written and oral submissions

advanced by counsel on behalf of the parties. We will now

proceed to determine grounds one and two of the appeal in

seriatim as they are intertwined.

5.2 Under grounds one and two of the appeal, the question for

determination is whether based on the evidence on record, it

can be said that the appellants proved their case on a balance

of probabilities, that Constable Daka acted negligently when

Topman Mwila was shot dead at the car wash on the material

day. If we answer the question in the positive, we can then

reverse the lower Court's findings of fact as they would have

been made erroneously.

5.3 Under the first ground of appeal, it is not in dispute that

Topman Mwila was shot dead by Constable Daka at the car

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 wash on the material day. The issue that we must determine

is whether the shooting was as a result of Constable Daka's

negligence and whether he negligently shot the deceased. The

learned trial Judge found that the evidence of PW 1 was

questionable regarding his role at the car wash on the material

day.

5.4 The Court found that the deceased acted to his own peril when

he wrestled with the Police officer for the firearm which he was

not trained to handle. The Court found that DWl 's evidence

that the firearm was set in motion by one of the people in the

mob that surrounded him was probable. The Court accepted

the evidence that was presented before it to the effect that the

deceased attacked the Police officer and tried to grab the

firearm from him.

5.5 According to the Court, there was no evidence that the

respondent acted negligently on the fateful day. The learned

trial Judge accordingly dismissed the appellants' claims. As

we determine whether or not these findings of fact were

justified, we bear in mind the question whether the respondent

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 acted negligently on the material day, resulting in the death of

the deceased.

5.6 Both sides gave conflicting evidence as to what transpired on

the material day. However what is clear from the evidence of

the witnesses from both sides is that the workers of NWSC

were prevented from fixing the pipe by the people who were at

the car wash, making it necessary for them to return to the car

wash with a police officer. It is also clear from the evidence of

PW 1 and DW 1 that there was a confrontation between the

deceased with other people at the car wash and DWl.

5.7 Further the evidence of DWl which was unchallenged was that

he found an unruly mob at the car wash which prevented

NWSC employees from operating on the punctured pipe at the

said car wash. It was not disputed that the unruly crowd

threw stones and empty bottles at the NWSC company vehicle

and other vehicles passing by. They surrounded DWl who was

trying to calm them down. When he tried to fire a warning

shot, they threw a stone which hit the lower part of his gun

and it went off while he struggled with the deceased who held

the barrel of the gun.

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5.8 The question is whether from the above circumstances, it can

be said that the police officer acted negligently. In order to

establish negligence, there must be-

1. A duty of care owed by the respondent to the deceased;

11. A breach of that duty by the respondent;

111. Damage caused to the deceased by the respondent which

should have been caused by a breach of that duty.

5.9 There is no doubt that the police officer owed the deceased a

duty of care because there was a sufficient relationship or

neighborhood between the deceased and the police officer as

espoused in the case of Donoghue v Stevenson. However, it is

our considered view that the facts stated above do not reveal

that the police officer breached his duty or that he was

negligent in the way he handled his gun. We agree with the

lower Court's finding that the deceased put himself in harm's

way when he voluntarily took a risk of wrestling with a police

officer who had a gun and was executing his duty. It is our

considered view that the principle of volenti non fit injuria

applies to this case.

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5.10 The learned authors of Halsbury's Laws of England, 4th

Edition Volume 34 paragraph 63 state as follows with

regard to the principle of volenti non fit injuria:

"In order to establish the defence, the plaintiff must

be shown not only to have perceived the existence of
danger but also to have appreciated it fully and
voluntarily accepted the risk. The Question whether
the plaintiff's acceptance of the risk was voluntary
is generally one of fact, and the answer to it may be
inferred from his conduct in the circumstances."

5.11 In the present case, we are of the view that the deceased

perceived the existence of the danger when he and the crowd

voluntarily wrestled a police officer who had the gun. We are

ably guided by the case of Smith vs Baker & Sons5 where the

House of Lords held that the question is not whether the

injured party consented to run the risk of being hurt, but

whether he consented to run the risk at his own expense so

that he and not the party alleged to be negligent should bear

the loss in the event of injury. Therefore, the consent that is

relevant is not consent to the risk of injury but consent to the

lack of reasonable care that may produce that risk. We form

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 the view that the deceased consented to the risk, at his own

expense, that would follow from holding the barrel of the gun

amongst a crowd that had got out of hand. The police officer

cannot therefore be held liable for the death of the deceased.

Grounds one and two of the appeal therefore fail.

5.12 In ground three of the appeal, the appellants contend that the

lower Court erred when it held that the case was

fundamentally flawed in that the appellants came to Court in

their capacities as parents of the deceased and not as

administrators. It was argued that the lower Court did not

take into account the fact that the deceased was a school boy

who was still under the custody and care of the appellants and

that he did not own any property that would farm part of his

estate.

5.13 It is important to note that as shown in the statement of claim

on page 34 of the record of appeal, the deceased was 22 years

old and therefore of majority age. In the proceedings in the

lower Court, the appellants sought damages for negligence in

their capacity as parents of the deceased. According to

Section 24 of the Intestate Succession Act, Chapter 59 of

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 the Laws of Zambia, only an administrator can legally deal

with the estate of a deceased person. Section 3 of the

Intestate Succession Act defines estate as-

"A ll the assets and liabilities of a deceased,

including those accruing to him by virtue of death or
after his death and for the purposes of
administration of the estate under Part III includes
personal chattels."

5.14 The damages for negligence sought herein would, if granted

form part of the deceased's estate. Therefore, the argument

that the deceased did not own property which would constitute

his estate cannot stand because even his personal chattels are

part of his estate. We concur with the holding of the lower

Court that this case was fundamentally flawed because the

appellants commenced proceedings in their capacity as

parents of the deceased and not administrators. This means

that the parents of the deceased had no locus standi to

commence the proceedings in the lower Court. They should

have obtained letters of administration before commencing the

action.

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5.15 It follows therefore that the lower Court did not have

jurisdiction to determine the matter as the appellants had no

locus standi. Ground three of the appeal also fails.

6.0 CONCLUSION

6.1 In view of the foregoing, this appeal lacks merit and 1s

accordingly dismissed. Each party shall bear its own costs.

<:::: t :::::=:: :::,..

M.M. KONDOLO, SC
COURT OF APPEAL JUDGE

P.C.M. NGULUBE �E-�fil=Rl

COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE

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