Spectrum Corporation Services Limited v Lafarge Zambia Plc (Appeal No. 187/2023) (14 February 2025) – ZambiaLII

IN THE COURT OF APPEAL 187/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) 14 FEB 2025 BETWEEN: r:1V11. flUGISTRY 2 /• q ... .. p...Y-p,._ SPECTRUM CORPORATION SERVICES 'C'.MI!i!E. APPELLANT AND LAFARGE ZAMBIA PLC RESPONDENT CORAM: Siavwapa JP, Chishimba and Patel, JJA On 19th August 2024 and 14th of February 2025 For the Appellant: Mr. E.B Kaluba of Messrs. Mwenye & Mwitwa Advocates For the Respondent: Mr. R.M Simeza S.C and M. Nkunika of Messrs. Simeza Sangwa Advocates JUDGMENT CHISHIMBA JA, delivered the judgment of Court. CASES REFERRED TO: 1. City Wall Properties (Scotland) Limited v Pearl Assurance PLC (2007) 2. Association of British Travel Agents Limited v British Airways Plc (2002) All ER 204. 3. Cornish v Accident Insurance Company (1889) QBD 453 4. Konkola Copper Mines Pie v Mitchell Drilling International Limited & Another 2015 (ZR) 203 5. Friday Mwamba v Sylvester Nthenge & 2 Others SCZ Judgment No. 5 of2013 6. Colgate Palmolive (Z) Incorporation v Shemu and Others Appeal 185 of2005 7. Musinga v Daka (1974) ZR 37 8. Courtney & Fairburn Limited v Tolani Bros (Hotels) Limited ( 1975) 1 ALL ER 453 d J2 9. Datong Construction v Fraser Associates (suing as a firm) Appeal No. 163 of2019 10. Holmes v Buildwell Construction Limited (1973) ZR 97 11. Sam Amos Mumba v Zambia Fisheries and Fish Marketing Corporation Limited (1980) ZR 135 12. Mukuba v Association of Chartered Accounts (ACCA) Appeal No. 27 of 13. Galaunia Farms Limited v National Milling Company Limited (2004) ZR 1 14. Power Equipment Limited v Goldtronics Limited & Barclays Bank PLC (2012) ZMHC 53 15. Indo Zambia Bank Limited v Mushaikwa Muhanga (2013) ZR Vol 523 16. Husamuddin Gulam Hussein Pothiwalla Administrator, Trustee and Executor of the estate of Gulam Hussein Ebrahim Pothiwalla v Kidogo Basi Housing Corporative Society Limited and 31 Others Civil Appeal No. 330 of 2003 17. Nairobi ELC Appeal No. 36 of 2015 18. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 19. Communications Authority of Zambia v Vodacom Zambia Limited (2009) ZR 196. 20. BP Zambia PLC v Expendito Chipasha and 235 Others SCZ No. 57 of 21. Indeni Petroleum Refinery Company Limited v VG Limited SCZ No.22 of2007 22. Victoria Laundry v Enock Kavindele Appeal 98 of 1998 unreported 23. United Bank (Zambia) Limited v Southern Province Co-operative Marketing Union Limited S.C.Z Judgment 7 of 1997 24. Walford and Others v Miles and Another (1992) 2 A.C 128 25. Maimidoil-Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD (2001) EWCA Civ 406 26. B J Aviation Ltd v Pool Aviation Ltd (2002) EWCA Civ 163 27. May & Butcher v R (1934) 2 KB 28. Hillas & Co Ltd v Across Ltd (1932) L.T 503 29. Marcus Achiume v The Attorney General (1983) ZR 1 30. Attorney General v D.G Mpundu (1984) ZR 6 31. Mhango v Ngulube & Another (1983) Z.R. 61 (S.C.) OTHER WORKS REFERRED TO: 1. Clarity for Lawyers, Effective Legal Writing, Mark Alder, The Law Society, 2nd Edition, January 2006. 2. Halsbury's Laws of England, 4th Edition, Reissue, Volume (9) 1, Butterworth & Co Ltd, UK 3. Chitty On Contracts, Volume 1, General Principles 33rd Edition, Sweet& Maxwell, 2018, Thomson Reuters J3 4. McGregor on Damages by Harvey McGregor, 18th Edition, Sweet & Maxwell, 2009 U.K 1.0 INTRODUCTION 1.1 This is an appeal against the judgment delivered by Lady Justice Dr. Winnie Sithole Mwenda dated 10th January 2023. The learned Judge held that, the appellant be remunerated for works done on a quantum meriut basis in respect of incomplete work relating to Income Tax Benefits on the ground that there was no agreement for payment for works at the rate of five percent (5%) of tax benefits accrued to the respondent. In respect of benefits secured as regards Withholding Tax, that the appellant be renumerated in accordance with the market practice or prevailing rates of tax consultants. That clause 9 of the mandate did not set out the actual fees payable to the respondent. The matter was referred to the Registrar for assessment. 1.2 The appeal deals with the issue of the effect of an agreement to agree, and whether it is enforceable. 2.0 BACKGROUND 2.1 On the 6th of October 2015, the respondent engaged the appellant as a tax consultant to render an opinion on the tax J4 incentives granted by the Zambia Development Agency (hereinafter referred to as ZDA), which was submitted on the 14th of October 2015. 2.2 On 20th October 2015, the appellant and respondent entered into an agreement. The appellant was to submit a proposal for the prov1s1on of tax consulting services regarding the operationalising of the ZDA tax incentives with the Zambia Revenue Authority (ZRA). 2.3 On the 2nd of November 2015, the appellant sent the respondent a draft of its mandate in which it proposed a success-based fee equal to 15% of the resulting benefits and tax refunds for the tax consultancy services it had begun working on. On the 12th of November 2015, the respondent counter-proposed a success based fee of 5% of the resulting benefits and tax refunds. Thereafter, the appellant counter-proposed a success-based fee of 7.5°/o. The respondent insisted on 5% as the success-based fee which the appellant averred it accepted. 2.4 On 16th November 2015, the respondent formally appointed the appellant as its consultant on the alleged terms of a success based fee of 5%. JS 2.5 According to the appellant it fulfilled its contractual duties between November 2015 and December 2017 by lodging the necessary applications at ZRA for the dividends on withholding tax and the ZDA tax incentives. It further engaged in various negotiations, correspondence and meetings with ZRA. 2.6 The respondent on 20th November 2017, confirmed that it had received the tax benefits which did not correspond with the amounts agreed upon with ZRA and engaged ZRA on a tax reconciliation exercise. 2.7 On 21st December 2017, the appellant wrote to the respondent stating that it was willing to accept a reduced fee of K21,900,000.00 calculated on the 5% of the tax benefit of K437 ,500,000.00 on condition that the respondent settles the fee by 31st December 2017. The respondent rejected the proposed fee of K21,900,000.00 and counter-offered to pay the sum of K2,500,000.00. 2.8 The appellant claimed that it was entitled to the sum of K21,875,061.82 as its fees being 5°/o of the tax benefits accrued to the respondent. The appellant commenced the suit subject of appeal seeking the following reliefs: JG (i) The sum ofK 21, 875,061.82 as its contractual professional fees being 5% of tax benefits accruing to the Defendant amounting to K437, 501,236.42 as of 6th April 2018. (ii) An account of all the tax benefits that have accrued to the Defendant, in addition to and other than amounts mentioned at 1 above arising out of the incentives under the Zambia Development Act No. 11 of 2006. (iii) An amount equivalent of 5% of the tax benefits found to have accrued to the Defendant at 2 above. (iv) Damages for loss of use of amounts accruing to the Plaintiff from the Defendant. (v) Interest on amounts found due under 1 and 3 above from the date the tax benefits accrued to the Defe nda nt until payment. (vi) Costs and any other relief that the court will deem just. 3.0 DEFENCE AND COUNTERCLAIM 3.1 In its defence, the respondent averred that it proposed to pay the appellant the success-based fee of 5°/o of the tax refund that would be paid in its account. Payment was not based on the J7 gross benefit before deductions made by ZRA. Further, the said agreement on fees was not concluded and was subject to negotiations as outlined in the mandate. 3.2 The proposal by the appellant to ZRA for the apportionment of income tax was rejected by ZRA which instituted a tax integrated audit to determine the basis of the apportionment of company profits related to the new investment. 3.3 The respondent acknowledged that the appellant was entitled to be paid for services it rendered but disagreed with the appellant's interpretation of clause 9 of the mandate letter. 3.4 The respondent counter claimed as follows: i) that the court interprets the meaning of clause 9 of the mandate drafted by the appellant and executed by the parties. ii) A declaration that the clause of the mandate did not set out the actual fees payable but contained a proposal on fees which are still subject to negotiations. iii) An order that in the absence of an agreement on fees, an account be taken on the work done by the plaintiff with respect to services outlined under clause 3 of the mandate JS and of the said services commission be calculated in accordance with the prevailing rates of tax consultants. iv) In the alternative, that the court declares that the plaintiff is entitled to 5% of K46,582,208.18 paid to the Defendant by ZRA valued at K2,329, 110.40 4.0 DEFENCE TO COUNTERCLAIM 4.1 The appellant in its defence to the counterclaim averred that the terms of the contract were negotiated and agreed. Further, that the respondent acknowledged that the appellant was entitled to 5% of the tax benefits due to it. In addition, that the appellant performed its contractual obligations over the period of three years without remuneration from the respondent. 5.0 JUDGEMENT ON ADMISSION 5.1 On 1st August 2018, the appellant applied for judgment on admission for the sum of K2, 329, 110.40. The court below entered judgment on admission in of K2, 329, 110.40. 5.2 The matter proceeded to trial for the remainder of the claims. 6.0 DECISION OF THE COURT BELOW 6.1 The learned Judge considered the matter and framed the issues for determination as follows: Jg i) The percentage rate applicable as remuneration under the Mandate Letter; ii) Whether the Mandate Letter is enforceable; iii) Whether or not the appellant is entitled to payment as claimed in its statement of claim; iv) In the event that the appellant is entitled to payment, whether the same should be on the gross benefits secured or the net benefits paid into the respondent's account after offsets; and v) Whether or not the respondent has proven its counterclaim. 6.2 The learned judge found that the 5% success-based fee referred to in clause 9 was merely a proposal that ought to have been subjected to further negotiation. That the appellant's claim for the sum ofK21,875,061.82 being 5% of the tax benefits accrued to the respondent was not tenable to the extent of the percentage it was based on. 6.3 Regarding the enforceability of the mandate letter, the Court held that though generally, an agreement to agree is unenforceable, there are exceptions when such agreements may be enforced. In the absence of an agreement for fees, the Court JlO ordered that an account be taken for the work done by the appellant. 6.4 Addressing the question of whether the appellant was entitled to the claims stated in the statement of claim, the Court firstly found as a fact that the appellant worked up to July 2017 as evidenced by the tax invoice issued on 20th July 2017 as opposed to its averment that it worked until December 2017. The court below held that the sum of K21,875,061.82 was not claimable as it was based on work not done by the appellant. Further, that there was no evidence to show that the appellant was involved in the work that ensued after the integrated audit suggested by ZRA on 24th July 2017. 6.5 The Court also held that the appellant be remunerated based on the gross tax benefit before the offsets. The claim for damages for loss of use of money failed as the primary claims it was hinged on had failed. 6.6 Having found that the appellant did some work until July 2017, the Court ordered that the appellant be remunerated for the said work based on a quantum meruit basis. 7.0 GROUNDS OF APPEAL Jll 7.1 Dissatisfied with the decision of the Court below, the appellant has appealed raising four grounds as follows: 1) The court below erred in law and in fact when it held at pages J62 and J64 of the judgment that the Appellant should be remunerated in accordance with the market practice or prevailing rates of tax consultants, when in fact the parties had unequivocally agreed in the Mandate Letter dated 16th November 2015 that the Appellant's contractual professional fees would be 5% of the resulting benefits and tax refunds accruing to the Respondent on account of the Appellant's efforts. 2) The Court below misdirected itself in law and fact when it decided at pages J54, J57 and J58 of the judgment that the Mandate Letter dated 16th November 2015 was ambiguous and proceeded to resolve the alleged ambiguity against the Appellant to the effect there was no agreement on the fees payable to the Appellant. 3) The learned trialjudge erred in both law and fact when she held at page J79 of the judgment that the resulting benefit of K432,667,963.32 for income tax was attributable to the work done by Price Waterhouse Coopers (PWC) and not the Appellant, when in fact not, and thereby glossed over the fact that PWC had been appointed only to undertake the tax audit reconciliation exercise on work already done by the Appellant. 4) The court below erred in law and fact when it held at pages JB0 and JBl of the judgment that the appellant was not entitled to damages for loss of use of amounts accruing to the appellant because this claim was predicated upon the Appellant succeeding on its claims for 5% compensation on tax benefits accruing to the Respondent, despite the court making a finding that some remuneration had accrued and was outstanding to the Appellant albeit not at 5% of the benefits. J12 8.0 APPELLANT'S HEADS OF ARGUMENT 8.1 The appellant filed heads of argument dated 19th June 2023 and argued grounds one and two together. In ground one, the appellant contends that the Court erred when it held that the appellant should be remunerated in accordance with the market practice or prevailing rates of tax consultants when the parties had agreed that the appellant would be paid 5% of the tax benefits. 8.2 It was submitted that the respondent countered the appellant's initial proposed fee and maintained a rate of 5°/o. Furthermore, there was no intention to negotiate the rate further, after the appellant agreed to the success-based rate of 5%. The mandate proposal was accepted by the respondent signing the said document. 8.3 The appellant contends that when the tax invoice was sent, the respondent did not raise any issues with the rate. The respondent merely asked the appellant to hold off on its claims until the process was completed by ZRA. We were referred to pages 797 and _8 00 of the record of appeal on the communication alluded to. Though the respondent proposed J13 reducing the fee to K2,500,000.00 it did not dispute the rate charged. Reference was made to the email dated May 2018 3rd between appellant's advocates and the respondent's in-house counsel. There were benefits received by the respondent which it was intending to base its calculation at the agreed rate of 5%. 8.4 The appellant argued that the Court below neglected to consider that the respondent was agreeable to paying 5% of the tax benefits received. That what was in contention was the amounts received by the respondent in respect of the refunds and benefits. According to the appellant, the proposals in the mandate were unequivocally accepted by the respondent when it signed the said mandate. 8.5 It was submitted that the lower Court, in interpreting and construing clause 9 of the mandate letter, should have recognised that the respondent accepted all the proposals in the mandate. Additionally, the Court should have noted that the 5% rate was initiated and included in the mandate letter at the respondent's insistence. 8.6 The appellant contends that it was illogical and unjust for the respondent to propose and insist on the 5% rate of remuneration, allow the appellant to provide it services for two J14 years, access tax refunds and benefits and then turn around to disavow the remuneration rate after benefitting from its services. The letter dated 16th May 2018, exhibited at page 426 of the record of appeal was referred to, in which the respondent had confirmed to its board of directors that the appellant undertook the scope of works provided for. 8. 7 The appellant in ground two argued that the Court erred when it held at pages J54 that a portion of clause 9 clearly stated that the proposal therein was subject to negotiation, while another portion could easily be understood to be a proposal which is a term that the respondent agreed to when it executed the mandate. We were referred to the case of City Wall Properties (Scotland) Limited v Pearl Assurance PLC 1 11 on the principles of construction and interpretation of contracts. 8.8 The position of the appellant is that the Court below disregarded the evidence led that the respondent proposed and committed to paying no less than 5% of the tax benefits. It was misplaced for the Court below to find an ambiguity in respect of the provision regarding the rate payable when it was evident that the parties had agreed to a success-based rate of 5%. The respondent disregarded its obligations as agreed in the mandate JlS despite having confirmed that the appellant did the work it was contracted for. 8.9 In interpreting contracts, Courts should not search for ambiguity where the words have only one natural and ordinary meaning and are incapable of more than one interpretation. The contra proferentum rule states that where there is doubt about the meaning of a contract, the words will be construed against the person who put them forward. Sedley L.J described the rule as "a principle not only of law, but of justice" in the case of Association of British Travel Agents Limited v British Airways Pie 121. 8.10 The court was referred to the learned author of Clarity for Lawyers: Effective Legal Writing, Halsbury's Law of England, and the case of Cornish v Accident Insurance Company 13 1, on contra proferentum principle that the person who puts forward the wording of the proposed agreement may be assumed to have looked after his interest and that any ambiguity will be construed against the party responsible for it. The rationale of the contra proferentum rule against the draftsman is that a party who imposes terms on another should make those terms clear and should be the one to suffer if they J16 are not. The position of the appellant is that the respondent imposed the success-based rate of 5% on the appellant and ought to pay at the rate it proposed. 8.11 The appellant submitted that the Court in essence permitted the respondent to take advantage of the situation it created. The case of Konkola Copper Mines Pie v Mitchell Drilling International Limited & Another14 1 was cited in support of the argument. 8.12 We were implored to give effect to the agreement between the parties in its entirety. The Supreme Court decisions of Friday Mwamba v Sylvester Nthenge & 2 Others 1 5 I and Colgate Palmolive (Z) Incorporation v Shemu and Others 161 were cited to buttress the point that contracts entered voluntarily into by legal persons should be enforced by the courts. 8.13In ground three, the appellant submitted that clause 3 of the mandate letter provided the scope of work to be done. The witness statement of Arthur Nelson Ndhlovu and the letter dated 21st December 201 7, appearing at pages 415-416 of the record of appeal detailing the works done by the appellant was referred to. J17 8.14 It was further submitted that the letters at pages 399 to 404 of the record of appeal from Price Waterhouse Coopers (PWC) to ZRA relating to the integrated audit do not refer to any works for which the appellant was engaged by the respondent. Further, that the audit conducted by PWC did not involve any matters relating to the scope of work for which the appellant was engaged. 8.15 The appellant maintained that the letter dated 22nd. May 2018, from ZRA was written after ZRA had inspected the Limited Deductions Directions (LDD) claim that the appellant made on behalf of the respondent. In addition, that the LDDs on the withholding tax on dividends obtained as well as the income tax assessment were because of the work conducted by the appellant. 8.16 The appellant contended that the Court erred when it held that the work done on the income tax and withholding tax was not done by the appellant. The respondent's witness confirmed at trial that the appellant undertook the work it was contracted for as evidenced at pages 1051 lines 15 and 1052 of the record of appeal. We were also referred to the letter from the respondent to the appellant exhibited at page 426 of the record of appeal J18 where the respondent's board of directors confirmed the work undertaken by the appellant. 8.17 In concluding its arguments on this ground, the appellant submitted that the evidence on the record showed that the appellant conducted extensive work as required in the mandate which resulted in the respondent accessing the tax incentives and tax refunds. 8.18 In ground four, the appellant assails the failure by the Court to grant an award of damages for the loss of use of funds that would have accrued to it for work performed. We were referred to the learned authors of McGregor on Damages on the definition of damages as: "The pecuniary compensation obtainable by success in an action for the wrong which is either a tort or breach of contract; the compensation being in the form of a lump sum awarded at one time, unconditionally and in sterling." 8.19 It was submitted that the court below, having established that the appellant had done some work which it ought to be paid for, ought to have awarded the appellant damages specifically pleaded in the statement of claim. The case ofMusingah v Daka 171 was cited in support of the argument. J19 9.0 THE RESPONDENT'S ARGUMENTS 9.1 The respondent filed its heads of argument dated 17th January 2024. It was submitted that the mere signing of the mandate letter did not signify acceptance of the terms including clause 9. The respondent did not accept the proposed rate of 5%. Clause 9 provided that the 5% success fee was a proposal subject to negotiation. Arthur Ndhlovu (PWl) conceded under cross-examination at pages 1026 - 1028 of the record of appeal that the 5% fee was subject to negotiation. 9.2 According to the respondent, the parties agreed to leave the issue of remuneration to be negotiated later, thereby creating "an agreement to agree". We were referred to the case of Courtney & Fairburn Limited v Tolaini Bros (Hotels) Limited 18 l where the court found that no estimated sums were agreed in the contract by the parties thereby resulting in "an agreement to negotiate or agree fair, and reasonable contract sums." 9.3 As regards the appellant's position that the respondent accepted the 5%> proposal by signing the mandate, the respondent contends that the signing of the agreement did not signify acceptance of the 5% fee proposal in the absence of negotiations regarding the fee. The 5% fee proposal was subject to J20 negotiations before it could be accepted. As authority our decision in the case of Datong Construction v Fraser Associates (suing as a firm) 191 was cited in which we held that the signing and endorsing of the letter containing proposals did not amount to acceptance of the said proposals. 9.4 In response to the argument that the court below should have considered negotiations or email conversations prior to the mandate in interpretating clause 9, the respondent's position is that where parties put the terms governing their relationship in writing, only those written terms should be considered and nothing else should govern their relationship. The cases of Holmes v Buildwell Construction Limited 1101 and Sam Amos Mumba v Zambia Fisheries and Fish Marketing Corporation Limited 11 were cited to buttress the argument that extrinsic 1 1 evidence is not admissible to vary, subtract or contradict the terms of a written contract. 9.5 Regarding the contention advanced by the appellant that the respondent did not dispute the 5% fee after the invoice, it is the position of the respondent that the said issue goes beyond the scope of grounds one and two settled in the memorandum of appeal. The appellant is not at liberty to raise issues beyond the J21 grounds of appeal. Therefore, we should not consider additional grounds of appeal without leave of court. As authority reference was made to Order Rule 9 (3) of the Court of Appeal Rules and the case of Mukuba v Association of Chartered Accounts (ACCA). 1 12 1 9.6 In any event, the lower Court did not determine whether the communication following the appellant's invoice confirmed the 5% fee rate. Therefore, the Court below did not misdirect itself. There can be no misdirection where the Court does not make a finding on the issue. 9. 7 The gist of the argument by the respondent is that its response to the invoice stating that it was premature as the incentives from ZRA had not been availed to it could not be construed as not disputing the rate and in essence agreeing to the 5% rate. Further, that the respondent was not under any duty to comment on the propriety of the invoice when the appellant had not completed its work. 9.8 In addition, that silence on the fee rate cannot not be regarded as acceptance of the invoice. We were referred to the case of Galaunia Farms Limited v National Milling Company Limited 1131 in which the Supreme Court held that silence J22 cannot be regarded as acceptance and referred to the learned authors of Chitty On Contracts , General Principles, under the subject silence; that " An offeree who does nothing in response to an offer is not bound by its terms ... " 9. 9 As regards the contra proferentum rule and the contention that the respondent imposed the rate of 5%, therefore it should be the one to suffer the consequences of the unclear terms in the mandate letter, it was submitted that the appellant misunderstood the contra proferentum rule. That the contra proferentum rule is against the draftsman and the wording put forth in the agreement and if the words have room for doubt in the meaning. It is the appellant who drafted the agreement and proposed the 5% success fee rate. 9.10 Consequently, if the wording in the mandate leads to different interpretations by the parties, the appellant who put forward those words should suffer and not the respondent. The cases of Power Equipment Limited v Goldtronics & Another 1141 and Indo Zambia Bank Limited v Mushaikwa Muhanga 1 151 and the authors of Halsbury's Laws of England 4th Edition Reissue Vol 9 (1) were cited in support of this argument. J23 9.11 Counsel submits that where parties enter into a contract, the Court must ensure that only the terms set out in the contract are enforced. That the Court below rightly enforced the mandate letter by holding that the remuneration payable to the appellant under clause 9 was subject to negotiation. In support of this argument, we were referred to the cases of Husamuddin Gulam Hussein Pothiwalla (Administrator, Trustee and Executor of the estate of Gulam Hussein Ebrahim Pothiwalla) v Kidogo Basi Housing Corporative Society Limited and 31 Others l 16 l and Nairobi ELC 1 17 1 where the court held the view that courts of law cannot re-write contracts between parties and that parties are bound by the terms contracted. 9.12 In response to the argument in ground three, that the lower Court erred 1n attributing the resulting benefit of K432,667,963.32 for income tax to the work done by PWC and not the respondent, the respondent submits that the lower court thoroughly examined the evidence on record before making the said finding of fact. 9.13 An appellate court will only tamper with findings of fact made by a lower court if it is shown that the findings of fact were perverse, made in the absence of any relevant evidence, based J24 on a misapprehension of facts or that on a proper view of the evidence no court acting correctly can reasonably make. Reference was made to the cases of Wilson Masauso Zulu v Avondale Housing Project Limited 11s1 and Communications Authority of Zambia v Vodacom Zambia Limited 1191_ In the absence of the outlined circumstances, a trial court's findings should not be interfered with. 9 .14 The position of the respondent is that while some services were provided to it regarding tax incentives on income tax, it disputes that the appellant delivered a settlement for the said tax incentives. The appellant had proposed apportionment based on production volumes rather than sales volumes, which led to the ZRA rejecting the work. 9.15 Further, that ZRA demanded that an audit be conducted to determine the portion of the income that qualified for tax incentives. In response to ZRA's request, the appellant stated that a full integrated audit would delay the conclusion of the tax refunds and suggested that the integrated tax audit be done at a later stage. The letter dated 20th July 2016, at pages 741 -743 of the record of appeal was drawn to our attention. Additionally, that the scope of work did not include audit services. J25 9.16 The respondent contended that the appellant at page 393 of the record of appeal unequivocally conceded that the portion of income that qualified for the tax incentive was established during the ZRA integrated audit based on sales volumes. And that the appellant did not participate in the integrated audit as the said audit was done by PWC and the respondent's in-house team. 9.17 The respondent emphasised that the remuneration agreement for the services rendered was success-based, not time-scaled. That the Court should not consider the duration of over two years in which the appellant provided services as a basis for entitlement to remuneration. It is not enough that the appellant did some work such as hold meetings and communicate with ZRA. Clause 9 of the mandate provided for success-based remuneration and that the appellant was entitled to be paid only after delivering tax refunds or benefits to the respondent. Since the appellant did not secure a settlement, it is not entitled to any remuneration for the ZDA tax incentives on income tax. 9.18 In response to ground four, the contention by the appellant that it is entitled to damages for loss of use of funds based on the lower Court's holding that it was entitled to remuneration is a • J26 misdirection. Damages must be specifically pleaded and not merely endorsed as a relief in the statement of claim. 9.19 Citing Order 18 Rule 12 of the Rules of the Supreme Court, the respondent submitted that pleadings must contain the necessary particulars of any claim. The statement of claim did not set out any particulars supporting its claim for damages for loss of use of amounts accruing from the respondent. The appellant had the burden of proving the damages suffered for loss of use but did not adduce any evidence to justify the claims. 9.20 In any event, the respondent argued that the appellant cannot claim both damages for loss of use of money and interest on the said money because it would be a duplication of the claim. The Court below awarded the appellant interest on the resultant figures after assessment. The interest awarded would sufficiently compensate the appellant if successful on its claim for loss of use of money on assessment as held in BP Zambia PLC v Expendito Chipasha and 235 Others 1 201 and Indeni Petroleum Refinery Company Limited v VG Limited 1211 9.21 It was argued that for a party to successfully claim damages for loss of use of money in addition to interest, the parties ought to have contemplated at the time of the agreement that a delay J27 would result in damage suffered by the party that should have received the money. Reference was made to the cases of Victoria Laundry v Enock Kavindele 1221 and United Bank (Zambia) Limited v Southern Province Co-operative Marketing Union Limited 23 in support of the argument that 1 1 one can only claim loss of use of money in addition to interest if the loss was within the contemplation of the parties. The court was urged to dismiss the appeal with costs. 10.0 APPELLANT'S HEADS OF ARGUMENT IN REPLY 10.1 The appellant filed arguments in reply dated 7th February 2024. In respect of the cited case of Courtney & Fairburn Limited v Tolaini Bros (Hotels) Limited 81 the same is said to be 1 , distinguishable from the present case. In Courtney, the parties had not reached an agreement on the fees payable. In contrast, to the case at hand, the agreement stipulated a success-based rate of 5% without any provision for further negotiation of payment terms or the establishment of fair and reasonable contract sums. Declaring the agreement as an agreement to agree would negate the whole agreement and render it null and void for want of agreement. )28 10.2 Learned counsel contended that the phrase "we therefore propose, subject to negotiation, to be remunerated as follows" indicated negotiations on the fees which the parties held. The negotiations between the parties resulted in the agreement of a success-based rate of 5% to be paid to the appellant. 10.3 Regarding the work done on income tax, learned counsel submitted that the audit done by ZRA was to verify the said incentives and benefits claimed by the appellant. Counsel contended that the audit undertaken by PWC did not attend to the claim by the respondent. It did not include the scope of work for which the appellant was engaged. The Court below disregarded the evidence led by the appellant which was confirmed by the respondent that the appellant completed the services for which it had been engaged. The rest of the arguments in reply were rehashed. We were urged to uphold the appeal. 11.0 ANALYSIS AND DECISION OF THE COURT 11.1 We have considered the appeal, the authorities cited, and the arguments advanced by the learned State Counsel and Learned Counsel. The following facts are not in issue, that on the 16th of November 2015, the appellant and the respondent executed an J29 agreement (mandate letter) 1n which the appellant was appointed as Tax Consultant/ Advisor to the Respondent in relation to incentives granted to the latter under Zambia Development Agency Act No. 11 of 2006. This was in respect of withholding tax on dividends and income. The appellant, in the agreement, proposed to assist Lafarge the respondent herein to claim back withholding tax on dividends paid to its shareholder companies domiciled out of Zambia. Also to carry out a detailed review of an applicable basis of apportionment and device to meet the objectives of the assignment etc. It is further not in dispute that the mandate letter under the terms stipulated that the proposed remuneration rate of a success-based fee equal to 5% was subject to negotiation between the parties. 11.2 We hereinunder reproduce for ease of reference Clause 9 of the mandate letter which stipulates as follows: "Compensation Structure and Logistics We believe that the role of Consultant/Advisor to the Company in respect of the services noted in above under section 3 will require significant commitment of our time and specialist skills over the period of time. We therefore propose, subject to negotiation, to be remunerated as follows: J30 • This aspect will involve engaging the ZRA with regard to application/apportionment of tax incentives, refund of withholding taxes on dividends and, if necessary, lodge an appeal to the Revenue Appeals Tribunal. Accordingly, we propose a success-based fee equal to 5% of resulting benefit and tax refunds, this fee however excludes VAT and any reimbursable costs that will be agreed in advance and charged at cost; and • This success-based fee is best suited to engagements of this nature as the company will not be required to provide any advances of fees nor payment of fees in the event that there is no accruing benefit/tax refunds. Spectrum will only be compensated if they add value to Lafarge by delivering a settlement." 11.3 The issues for determination in this appeal as we seem them are as follows: (i) Whether the parties had unequivocally agreed by mandate letter that the professional fees would be 5% of the tax benefits/refunds accruing to the respondent? And whether the said agreement is enforceable. (ii) Whether the said mandate was ambiguous, and if so whether the ambiguity should be resolved against the draftsman, i.e. the appellant herein. J31 (iii) Whether the resulting tax benefit of K432,667, 963.32 was attributable to the work done by Price Waterhouse Coopers or the appellant. (iv) Whether the appellant was entitled to damages for loss of use of amounts accruing in respect of remuneration. 11.4 The appellant contends that by signing the agreement, the respondent agreed to the proposal of the 5% success-based fee. The basis of the above contention is the attestation clause in the agreement which reads as follows: "The Parties agree to all the terms and conditions and do hereby agree to sign as indicated alongside their respective names, entities and signatures." 11.5 The respondent on the other hand contends that the effect of signing the agreement was that it agreed to the term that the proposed success-based fee of 5% would be subject to negotiation and not that it had agreed to the proposed 5%. 11.6 We are of the view that the issues in grounds one and two are whether the parties had agreed to the success-based fee of 5% as remuneration and whether there was any ambiguity created by virtue of clause 9 and the attestation clause in the contract. J32 11. 7 We shall begin by identifying the nature of agreement entered between the parties. The contract between the parties in casu falls into the category of agreements to agree, because the term as to renumeration / success-based fee of 5%i was left unsettled and was subject to negotiation. Agreements to agree are contracts entered into subject to further negotiations and agreement by the parties. It is a well settled principle of law that an agreement to agree between the parties is void for lack of certainty. In the case of Walford and Others v Miles and Another 1241 the House of Lords stated as follows: "the reason an agreement to agree is unenforceable is because of lack of certainty." We also refer to the cases of Maimidoil- Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD 25 and B.J Aviation Ltd v Pool Aviation Ltd 26 in which the 1 1 1 1 law on agreements to agree was also stated as above. 11.8 An agreement to agree is not a binding contract if it lacks certainty due to vagueness or incompleteness. An agreement may be incomplete because the parties left out unsettled important points or requires further agreement to be reached on points left open, as is the case in casu. Parties may agree on J33 essential matters of principle but leave out important terms unsettled. 11.9 On the other hand, an agreement can be complete although it leaves out some meticulous details. According to the learned authors of Chitty on Contracts Volume 1 General Principles paragraph 2-134 at page 284 "parties to an agreement may be reluctant to commit themselves to rigid long-term arrangements, particularly when prices and other circumstances affecting performance are likely to change fluctuate. They sometimes attempt to introduce flexibility by providing that certain terms are to be agreed later or from time to time. The result of such a provision may be to make the agreement so uncertain that it cannot be enforced" The learned authors refer to the case of May & Butcher v R 12s1 in which an agreement for the sale of tentage stipulated that the price, dates of payment and manner of delivery should be agreed from time to time. The House of Lords held that the agreement was incomplete as it left vital matters to be settled. 11.1 0The key principles regarding agreements to agree are that where essential terms are to be agreed, a contract does not come into J34 existence because it is too uncertain. Where the parties intended to be bound, the court will attempt to preserve rather than destroy agreements. For example, where in the contract, there is an objective benchmark/machinery to determine the price/ fees such as reference to reasonable standard, the courts will employ the criterion to fix the terms or assess reasonable price/fee. 11.11 In determining whether a binding contract exists, courts apply an objective test and considers the following: (i) Whether the contract is sufficiently certain to be enforced (ii) Whether a reasonable man would say that the parties were in agreement and intended to create legal relations. A term will not be unenforceable merely because it requires further agreement of the parties if the courts can resolve the uncertainty. The courts are more inclined to uphold an agreement to agree where the contract provides a mechanism or objective criteria! by which to resolve the uncertainty. We refer to the cases of Hillas & Co Ltd v Arcos Ltd 128 and Mamidoil > Jetoil Greek Petroleum SA (supra) on the position of the law on agreements to agree. J35 The lower court ably cited the law on incomplete agreements stated in Halsbury's Laws of England vol 9(1) at paragraph 667, i.e. the general rule that an incomplete contract will be rendered unenforceable. The court below proceeded to hold that the mandate letter was unenforceable and that the appellant was entitled to be paid on quantum meruit basis for the incomplete work relating to income tax benefits. l 1.12We have carefully read the mandate letter and examined clause 9 which in part states, "We therefore propose, subject to negotiation, to be remunerated as follows'' and "Accordingly, we propose a success-based Jee equal to 5% of resulting benefit and tax refunds." 11.13 Our interpretation of the agreement is that the 5%i success based fee term mentioned in clause 9 was put forward as a proposed rate that was subject to negotiation. By signing the agreement, both parties mutually agreed to the terms as presented. The appellant's argument that signing the agreement implied unconditional acceptance of the 5% fee is without merit. The signing of the mandate letter did not signify acceptance of the terms of the 5%, success-based fee remuneration. The parties agreed that remuneration would be subject to J36 negotiation. Reference to communications between the parties after the mandate amounts to extrinsic evidence which is inadmissible. Hence, we shall not belabor an examination of the said correspondences. 11.14 We will also not belabor the arguments on ambiguity and contra proferentum rule (verba cartarum fortius accipiuntur contra proferentem) which the lower court correctly addressed and found ambiguity in respect of clause 9 and attestation clause of the agreement. We cannot fault the court below for resolving the ambiguity in favour of the respondent against the appellant. The contractual provision was properly construed against the party that drafted the mandate letter. 11.15 As to the issue of whether the success-based fee rate of 5% was agreed to between the parties, we are of the firm view that the term as to remuneration remained unsettled and was not agreed upon as it was subject to negotiation between the parties. Further, the mandate letter as to the success-based fee of 5% rate of remuneration cannot be argued to be certain so as to be enforceable. Was a mechanism or objective criteria! provided in the contract for us to resolve the uncertainty of the term of remuneration? The answer is a categorical no. Though J37 the contract between the parties 1s valid, the terms as to remuneration were left unsettled and the said term which was subject to negotiation is unenforceable. We therefore cannot fault the lower court in holding as such. 11.16 Having held that the term of 5% success-based fee is unenforceable, the issue to be resolved is whether the court erred in holding that the appellant be remunerated in accordance with the market practice or prevailing rates of tax consultants. We shall revert to this issue after we have determined whether the resulting benefit of K432, 667,963.32 was attributable to the work done by Price Waterhouse Coopers (PWC) instead of the appellant. l 1.17The appellant in ground three has argued that the Court erred when it held that the work resulting in the tax benefits for income tax was not done by the appellant when the evidence shows that the appellant did extensive work to ensure that the respondent accessed the tax benefits and refunds. The appellant is assailing the above finding of fact by the court below. The Supreme Court in Marcus Achiume v The Attorney General 1291 considered when an appellate court may reverse findings of a trial judge by stating that: J38 "Before this court can reverse findings of fact made by a trial judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." 11.18 We note that the lower Court found that the appellant secured tax benefits for the respondent regarding withholding tax on dividends and that it be remunerated in accordance with the market practice or prevailing rates of tax consultants. 11.19 In respect of tax incentives for income tax, we refer pages 8187 of its judgment appearing at page 89 of the record of appeal, the analysis by the court below, concluding in its holding that the appellant did some work before PWC came into the picture. That the guidance by ZRA that there was need for an audit to be done effectively operated as a rejection of the appellant's application. The lower Court attributed the figure of K432,667,966.36 in respect of resulting benefits for income tax incentives to the work performed by PWC. 11.20 The Court below ordered that the appellant be remunerated on a quantum meruit basis in respect of incomplete works relating to the income tax benefits. J39 11.21 The appellant's position is that the Court below glossed over the fact that PWC had been appointed only to undertake the tax audit reconciliation exercise on work already done by the appellant. The Court below stated as follows and held that: "I had earlier alluded to the fact that there is no dispute that the Plaintiff did some work until July 2017, which culminated into it issuing a tax invoice to the Defendant. I had also earlier stated that the Plaintiff is rightfully entitled to payment by the Defendant for this portion of work despite the efforts of the Plaintiff having been cut short when ZRA guided that an audit needed to be done, and which audit saw the engagement of PWC to complete the work pending." 11.22 The Court below considered what necessitated the engagement of PWC and the work performed by both the appellant and PWC. 11.23 The appellant argues that it did work for the respondent resulting in the tax benefit of K432, 667, 963.32 and that the Court was wrong in finding that the said tax benefit of K432, 667, 963.32 was attributable to the work done by PWC. In our view, this is the cardinal issue for determination under this ground whether the work resulting in the tax benefit of K432, 667,963.32 was attributed to appellant or PWC. ,. J40 11.24 The appellant referred to the portion of the judgment it contends with at page 87 of the record of appeal which reads in part as follows: "There is no dispute, however, that the Plaintiff did some work until July 2017 when it issued a tax invoice to the Defendant; and for this portion, the Plaintiff is rightfully entitled to payment by the Defendant. ... The only portion that was carried out by the Plaintiff and accepted in that form by ZRA was the claim for LDDs as regards WHT and the figure attributable thereto is K56, 343,611.90. This is the amount which the Plaintiff is entitled to be remunerated in respect of. The other portions bringing the figure to K432, 667, 963.32 are as regards to income tax, which is attributable to the work done by PWC." 11.25 The appellant argues that it submitted apportionment ratios to ZRA and did extensive work to ensure that the respondent received the tax incentives. Though the respondent acknowledges that the appellant did some work regarding the income tax incentives which involved meetings, email exchanges and a rejected apportionment, it contends that PWC conducted an audit requested by ZRA which culminated in the tax refund of K432, 667, 963.32. J41 11.26 At this point, it is not disputed that both the appellant and PWC did work relating to the income tax incentives. PWC carried out the audit. What is disputed is what work resultantly led to the tax benefits on the income tax. A recap of the communication between the appellant and ZRA is necessary for determining the work put in by the appellant regarding the said income tax. 11.27 In response to the appellant's application on 11th January 2016 for LDDs on WHT and ZDA tax incentives, ZRA on 31st May 2016 advised the appellant that regarding the tax incentives, an audit would be required to determine an apportionment mechanism. 11.28 Following the letter from ZRA, the appellant on 28th June 2016 wrote to ZRA submitting details of apportionment ratios using details in the audited financial statements covering the period from 1st January 2009 to 31st December 2015. ZRA on 6th July 2016 informed the appellant that a comprehensive integrated tax audit on the respondent would be required as part of the exercise of understanding the apportionment for the tax incentives. J42 11.29 This marked the close of communication between the appellant and ZRA regarding the tax incentives for the period of 2009 to 2015. 11.30 The evidence on record shows that the appellant prepared and submitted details of the apportionment ratios to ZRA as evidenced at pages 329 to 336 of the record of appeal. ZRA advised that an audit would be necessary to determine the apportionment mechanism, and it submitted its findings on the audit conducted between 15th August to 26th August 2016, on 17th October 2016. The appellant did not participate in the audit. Clause 3 of the mandate which outlined the appellant's scope of services did not include conducting an audit. 11.31 On 11th July 2017, the appellant wrote to ZRA advising that the income tax return for the charge year ending 2016 amounted to K21,416,664.54. In response, ZRA stated that the apportionment involved a charge year that had not yet been audited and that an audit would be scheduled at an appropriate time to confirm the basis and accuracy of the apportionment. 11.32 The appellant wrote to the respondent on 1st November 201 7 updating it on the meeting with ZRA on the status of the J43 income tax assessments on LDDs and WHT on dividends. The letter read in part as follows: 1) With regard to LDDs on WHT on dividends, ZRA advises that the total amount of K56, 343,612.00 approved in January 2017 has now been credited to your respective tax account by the Processing & Enforcement Unit. The same will be refunded to you by means of offsetting against other tax liabilities that your company might have, ZRA would not however disclose the nature of these other liabilities. 2) Under company income tax, the total assessments after various audit adjustments for the period 2009 to 2015 and taking into account the ZDA incentives but before penalties amount to K381, 157, 624.52. These assessments have since been approved by the Mining Unit and credited to your tax account by the processing and enforcement unit. Like above, the credits on your account will be refunded by way of offsets against other tax liabilities; and 3) ZRA further advises that they will be conducting an audit of the income tax for the charge year ending 31st December 2016 during the month of November 2017 before issuing a final assessment. We have attached an analysis of the assessments by charge year for your record. We wish to advise that as per our agreement dated 16th November 2015, the total resulting benefit under this J44 assignment amounts to K437, 501, 236.52 (being total ofK381, 157, 624.52 plus K56, 343, 612.00) .... " ll.33Based on the above letter, the appellant lodged a claim for 5% of the total benefits on the WHT dividends and the income tax benefits. Given the evidence before us, we hold and conclude that the appellant performed professional services work regarding the income tax benefits which was not only limited to communication and meetings with ZRA. It also included preparing and submitting apportionment ratios which ZRA responded to by advising that an audit would be the best mechanism to determine the apportionment ratios. ZRA did not reject the work submitted but requested for an integrated audit to determine claims. In our view the court below erred by stating that the guidance by ZRA that there was need for an audit to be done "effectively operated as a rejection of the plaintiff's application" The request by ZRA cannot be deemed a refusal, as it was a mere request for an audit to confirm and determine the apportionment ratios submitted by the appellant. 11.34 It is not in issue that the audit determining the apportionment ratios was conducted by PWC and ZRA. J45 11.35 The respondent submits that by its letter dated 11th July 2017, it advised ZRA on the apportionment for the year ending 2016, which ZRA noted and adopted as the basis of that apportionment. We note that the claim in the Court below arose from tax incentives from 2009 to 2015 and did not include 2016. Nonetheless, ZRA responded that an audit needed to be conducted for the year 2016. 11.36 The respondent has argued that notwithstanding the work done by the appellant, under clause 9 of the agreement, the appellant would only be entitled to remuneration if it delivered a settlement. The portion referred to in clause 9 states, "Spectrum will only be compensated if they add value to Lafarge by delivering a settlement." 11.37 It is our interpretation that in essence, this clause ensures that the appellant's compensation is tied to its ability to achieve a specific beneficial outcome for the respondent rather than just for the effort expended in providing the services. Their compensation 1s contingent upon the delivery of a settlement. 11.38 In this regard, we must ask ourselves what amounts to "delivery of a settlement". According to the respondent, J46 d delivering a settlement meant delivering tax refunds or benefits to the respondent. The respondent contends that the appellant's apportionment was rejected because the proposed apportionment was based on production volumes. That PWC delivered the settlement following the integrated audit which apportioned the proportions between the new and old investment resulting in tax refunds to the respondent. It was submitted that without the audit, ZRA would not have ascertained the apportionment of the income between the new and old investments. 11.39 We had earlier highlighted the work the appellant performed concerning the income tax benefits. Though we are inclined to agree with the respondent that "delivery of a settlement" meant the delivery of tax refunds or benefits, the critical question to be posed is on whose work was the income tax refunds or benefits based? Was it on the appellant or on PWC which conducted an audit? We are of the view that the work performed by the appellant was the basis or foundation upon which ZRA ordered the audit on the income tax benefits submitted by the appellant. After the audit, it culminated in the respondent accessing the tax benefits in the sum of J47 K432,667,963.32. The only reason the appellant's work did not culminate in the tax incentives is because ZRA requested for an audit to prove the income tax benefits claimed. 11.40 We are also of the view that though the audit ordered by ZRA was conducted by PWC, the appellant performed the groundwork culminating in the accessing of income tax incentives. The extensive works by the appellant was the basis/foundation upon which the audit was requested resulting in the secured tax incentives on income tax. ZRA's response to the appellant's submitted apportionment ratios was that it needed to conduct an audit to arrive at an acceptable apportionment ratio. 11.41 We therefore find that the court below erred in law and fact when it attributed the resulting benefit to work done by PWC. The basis of the work which resulted in the tax benefit of K432,667,963.32 is attributable to the works done by the appellant. PWC merely conducted an audit with ZRA. We therefore set aside the lower Court's finding to that effect as it was made upon a misapprehension of the evidence on record. We further hold that that the appellant is entitled to be paid J48 for services/work done resulting in the secured tax benefits to the respondent in the sum of K432, 667,963.32 from ZRA. 11.42 We now revert to the issue of the quantum of renumeration. The Court below ordered that the appellant on WHT be paid at the prevailing rates of tax consultants and on the incomplete work relating to income tax on quantum meruit basis. Having held that the appellant is entitled to be paid for the for work done which was the basis of the resulting tax incentives of K437,501,236.42, we hold that the appellant be paid on the prevailing rates of Tax Consultants to be assessed by the Registrar. We set aside the judgment of the court below to that effect and substitute it with the holding that the appellant is entitled to be remunerated for the work done which was the basis of the resulting tax benefits of the sum of K437,501,236.42 at the prevailing rates of Tax Consultants. 11.43 Turning to ground four, the appellant has challenged the lower Court's finding that despite holding that it was entitled to some remuneration, the Court held at pages 80 and 81 of the judgment that it was not entitled to damages for loss of use of amounts because the claim was predicated upon the appellant succeeding on its claim for 5% compensation on tax benefits. J49 11.44 The thrust of the appellant's argument is that the Court having found that it did some work on WHT, it was obligated to award the appellant the damages claimed. The appellant submitted that the claim for damages was specifically pleaded in its statement of claim. 11.45 The respondent argues that the claim for damages for loss of use of money was merely endorsed on the statement of claim and the appellant failed to particularise the damage or the loss suffered. 11.46 We have perused the statement of claim and note that the appellant claimed damages for loss of use of money. Contrary to the appellant's assertions that it specifically pleaded this claim, we find that it did not as there were no particulars provided for this claim. Damages fall into two categories, i.e. general or special damages. In the Attorney General v D.G Mpundu 13o1, the Court stated that: "In other words, usual, ordinary or general damages may be generally pleaded; whereas unusual or special damages may not, as these must be specifically pleaded in a statement of claim (or where necessary, in a counterclaim) and must be proved. 11.47 The claim for loss of use of money constitutes special damages, and to succeed, must be specifically pleaded and JSO substantiated with evidence. The Supreme Court in the case of Mhango v Ngulube & Another 1 31 1 held that: "It is, of course, for any party claiming a special loss to prove that loss and to do so with evidence which makes it possible for the court to determine the value of that loss with a fair amount of certainty. As a general rule, therefore, any shortcomings in the proof of a special loss should react against the claimant. 11.48 In casu, there was no evidence submitted by the appellant detailing the loss of use of money. In the absence of evidence to ascertain the claim for loss of use of money, the appellant is essentially requesting this Court to grant a relief that is not supported by any evidence. The learned authors of McGregor on Damages at paragraph 45-001 opine that: "The claimant has the burden of proving both the fact and the amount of damage before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case the proof of such allegation falls on him." 11.49 They further opine that: "Where he succeeds in proving neither fact nor amount of damage, he loses the action or if a right is infringed, recovers only nominal damages. Where he succeeds in proving the fact of damage but not its amount, this generally permits only an award of nominal damages .... " JSl (7 l 1.50The appellant having, failed to prove that it suffered damages for loss of use of money, is not entitled to the sought relief of damages. It is not enough for the appellant to merely claim damages, evidence of loss or injury must be adduced, more is expected. The appellant is only entitled to an award of interest on the sum found due by the Registrar upon assessment. 12.0 CONCLUSION 12.1 We uphold ground 3, set aside the lower Court's holding and substitute it with the holding that the work performed by the appellant was basis or foundation upon which ZRA ordered the audit conducted by PWC resulting in the tax benefit of K432, 667,963.32. The basis or foundation of the work performed therein was attributable to the work performed by the appellant, which is entitled to be paid at the prevailing rates of tax consultants in respect of the benefits secured. 12.2 The amount due shall be assessed and determined by the Registrar at the prevailing rate of Tax Consultants. The amount found due shall be paid with interest at the short-term deposit rate from date of writ to date of judgment, thereafter at the current bank lending rate until complete payment. J52 12.3 Costs are awarded the appellant to be taxed 1n default of agreement. .. ................... 1.... ......................... M. J. SIAVWAPA JUDGE PRESIDENT iufoFJ .................. . ....•........ F.M. Chishimba A.N Patel S.C COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE