Msusa v ESCOM (Civil Cause No.381 of 2004) ((Civil Cause No.381 of 2004)) [2005] MWHC 110 (01 November 2005);




CIVIL CAUSE No.381 OF 2004


BERTHA MSUSA …………………………… …………...….……….. PLAINTIFF


ESCOM ……………………………………. …………………………. DEFENDNAT

Coram: T.R. Ligowe : Assistant Registrar

Chinula : Counsel for the plaintiff

Mphenzi (Miss.): Counsel for the Defendant

Chulu : Court Clerk Interpreter


The plaintiff, a tenant at Flat Number 11/30/D4 at Area 11 in the city of Lilongwe, which Flat is supplied with electricity by the defendant, had electricity disconnected at her flat despite having paid all her bills. Electricity was disconnected in June 2003, on 22nd September 2003 and 11th December 2003. The plaintiff brought action claiming damages in negligence, interest and costs of the action.

This is the assessment of the damages, a default judgment having been entered in default of the defendant’s defence.

The plaintiff testified that she had been paying all her electricity bills but she experienced the said disconnections. Upon checking the disconnection slip the first time she had a disconnection, she discovered it had different details from hers except the meter number. The flat No. was 11/30/1A, the tenants’ name was Martha Kakusa and the account number was also different. When ESCOM came to reconnect, she was assured the problem would be sorted out. Yet she experienced another disconnection on 22nd September which described as very humiliating and disheartening as she had visitors. Her sister from UK had come to get married and there were the fiancé and the bridesmaids. She looked irresponsible before them. When she presented the problem to ESCOM office at City Centre, she was again assured it would be sorted out. When she got back home she found the power back. She had another disconnection on 11th December 2003. She had just arrived around 4 pm from Blantyre on an official trip with her bosses and found water all over the floor in the kitchen from her defrost fridge. The carpet in the living room was socked. She reported about it and demanded that power be reconnected, but it had not been reconnected until 11 pm. She then wrote ESCOM Headquarters warning them she would take legal action. In response they wrote her on 27th March 2004. The letter was exhibited and marked EX P2. In the letter ESCOM apologized for the disconnections and for delaying to rectify the problem. The letter sates that the problem was misallocation of records. Account number 20051121 was allocated to meter number 18036 on plot number 11/30/1A while account number 20051124 was allocated to meter number 17276 on flat number 11/30/D4. It further states ESCOOM decided to correct the situation by reallocating the account numbers and payments and readings to relevant and respective accounts, the results of which were that the plaintiff’s account was overpaid by K6413.07. Before she received this letter there was yet another disconnection on 30th April 2004.

The defendant called two witnesses. Both accepted there was a problem with the system they use to maintain customers’ information and the billing system, in that their computers had conflicting information to what in fact it was leading to the first three disconnections and when this problem was rectified, the system flagged out a customer with a credit balance when it only had to flag out customers with debit balances. They would not better explain why on the second problem as they said the system was developed in the UK and had since referred the problem to their system supporters in South Africa but had not yet got any response. They however emphasized on the fact that every time electricity was disconnected and the problem reported ESCOM would quickly go to reconnect.

However there was negligence on the part of the defendants and a judgment was already entered to that effect.

The plaintiff claims general damages and I have to award her damages of a non pecuniary nature for the inconvenience or in jury to feelings that she suffered as a result of the defendant’s negligence. I must award damages that will compensate the plaintiff in so far as money can do it. And the award must be such that members of the society will be able to say that the victim has been well compensated. In so doing comparable injuries have to be compensated with similar awards. See Benson Nakununkhe v. Paulo Chakhumbira and Attorney General, Civil cause No. 357 of 1997 (unreported). Counsel for the plaintiff cited Hara v. Malawi Housing Corporation 16(2) MLR 527 in his submission which I find useful in this case. In that case the defendant sealed the house the plaintiff was renting on the pretext that he was in arrears of rent. The court, on the authority of Owen and Another v. Reo Motors (Britain) Ltd (1934) 151 LTR 274, Steel Fabrication Industries v. Norse International Ltd Civil Cause No. 269 (1984), Unango Estates Ltd and Another v. Michael Civil Cause No. 487 (1983) and Mleme v. Pantazis Civil Cause No 666 (1987) awarded the plaintiff K2 000 for the embarrassment caused on him by the trespass that lasted for a couple of hours. That was in 1993.

In this case today, I award the plaintiff K30 000 for the inconvenience, and injury to feelings that she suffered due to the defendant’s negligence. I also award her costs of the action.

The plaintiff also claims interest, but I make no award for that as interest is not claimable on damages. The courts jurisdiction under section 11(a)(v) of the Courts Act to direct interest to be paid is confined to cases of debt as distinct from damages. See John Bryan v. David Whitehead and Sons Malawi Ltd MSCA Civil Appeal No. 11 of 1998.

Made in Chambers this ……… day of November 2005.

T.R. Ligowe