Zambia Industrial Commercial Bank Limited v Lunga Resources Limited (APPEAL No. 71 of 2024) (21 February 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 71 of 2024 OLDEN AT NDOLA (Civil Jurisdiction) /. 4 FEB 2025 REGISTRY· BETWEEN: ZAMBIA INDUSTRIAL COMMERCIAL BANK LIMITED APPELLANT AND LUNGA RESOURCES LIMITED RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 1sth & 24th February 2025 For the Appellant: Mr. S. Chisenga Messrs. Corpus Legal Practitioners For the Respondent: Mr. C. Magubbwi Messrs. Magubbwi & Associates JUDGMENT Patel, JA, delivered the Judgment of the Court. Cases referred to: 1. Attorney General v Katwishi Kapandula (1988-1989) ZR 69 2. Eastern Cooperative Union Limited v Yamene Transport (1988-1989) ZR 3. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 4. Zambia Breweries Pie v Kayungwa-SCZ Appeal No. 82 of 2006 5. Pliable Engineering Limited v Mwamba - SCZ Appeal No. 70 of 2017 5. Susan Mwale Harman vs Bank of Zambia -SCZ Appeal No. 191 of 2015 7. Savenda Management Services Limited v Stanbic Bank Zambia Limited -SCZ Appeal No. 37 of 2017 8. JZ Car Hire Limited v Malvin Chala and Scirocco Enterprises Limited -SCZ 26 of 9. Hitech Logistics Limited v Uganda Italian Style Limited- CAZ Appeal No. 80 of 10. Emmanuel Mponda v Mwansa Christopher Mulenga, Christopher Mungoya and the Attorney General 11. Muyambango v Clement Banda -Selected Judgment No. 30 of 2016 12. Minister of Home Affairs, Attorney General v Lee Habasonda (2007) ZR 207 13. Kansanshi Mine Pie v Maini Joseph Mudimina & Others (Appeal No.149/2010) 14. Khalid Mohammed v The Attorney (1982) ZR 49 15. Clement H. Mweempe v AG and Others SCZ Judgment No. 13 of 2012 Texts and other materials referred to: 1. Harvey McGregor, McGregor on Damages 16 th edition (Sweet & Maxwell) J2 1.0 INTRODUCTION 1.1. This is an appeal against the Judgment of Musona E. L. J; delivered on 21st November 2023, in respect of an action commenced by the Respondent, (the Plaintiff in the lower court), against the Appellant (the Defendant below) seeking several reliefs detailed in its statement of claim. 1.2. The Hon. Judge in the lower Court granted Judgment in favour of the Respondent, now the subject of this appeal. 1.3. The Record of Appeal is presented in one volume. Reference to page numbers shall refer to the Record of Appeal unless otherwise noted. 2.0 BACKGROUND 2.1 For the purposes of this section, the parties shall be referred to as they appear in this Court. 2.2 The Respondent commenced an action against the Bank on 30th June 2023 under cause number 2023/HPC/0456 (the subject of the appeal), by Writ of Summons and Statement of Claim. The said process is noted at pages 34 to 39. In its statement of claim, the Responded pleaded that between May 2012 and July 2013, it and its (unnamed sister company) did obtain overdraft facilities from the Appellant which were secured by third party mortgages over properties known as Stand 7566 Kitwe and Stand 1024 Solwezi ("the properties"). J3 2.3 The Respondent further pleaded that following a default, the Appellant commenced an action under cause Number 2015/HPC/0333 (the second action), which culminated in a consent settlement order dated 10th May 2016. The said Order is seen on pages 156/157. ("the Consent Order"). 2.4 It was the Respondent's case that having settled the amounts claimed, the Appellant refused or failed to release the Certificates of Title for the properties held as security, and consequently claimed the following six reliefs: i. Immediate payment by the Defendant to the Plaintiff of the total sum US$1,550,000.00 being sums for loss of business on a Joint Venture arrangement as a consequence of the Defendant action of not releasing the securities under a settled loan facility. ii. A declaration that the Defendant has breached the terms of the Consent Settlement Order dated 10th May 2016 upon its failure to discharge and release the securities under the settled loan facility. iii. An Order of Injunction restraining the Defendant whether by itself or its agents from further withholding the Certificate of Title relating to Stand No. 7566 Kitwe and Stand No. 1024 Solwezi and further restraining the disposing of the properties without the consent and/or authority of the Plaintiff. iv. Immediate surrender and release of the said Certificates of Titles relating to the properties referred to in (iii) above. v. An Order for General Damages arising out of the Defendant's illegal and irregular actions. J4 vi. Any other and/or further relief the Court shall deem fit. 2.5 The Appellant caused to be filed its defence in which it named the sister company of the Respondent, as Tunta Mining Limited. (Tunta). It also pleaded that the facilities availed to Tunta, were secured by a deed of third party mortgage over the properties. 2.6 It was further its defence that Tunta was not a Party to the Consent Order and that it (the Appellant Bank), commenced another action against Tunta under cause Number 2020/HPC/0577 (the third action), to enforce the security it held on account of the default of Tunta. 2.7 It was the ultimate defence that in the third action, Judgment was entered in its favor on 29th March 2023 and the Bank was at liberty after a period of 120 days, to foreclose and take possession of the properties. 2.8 The defence is noted from pages 144 to 147. 3.0 DECISION OF THE LOWER COURT 3.1 Upon hearing the matter, the learned Judge in the lower Court, delivered his Judgment on 23rd November 2023 wherein he granted Judgment in favor of the Respondent. The Judgment, now the subject of appeal, is noted on pages 9 to 33 of volume 1. 3.2 With regard to the first relief sought by the Respondent, the learned Judge was satisfied that th is claim had been proved and ordered that the Appellant pay to the Respondent USO 1, 550, 000.00 being sums for loss of business JS on a Joint Venture arrangement as a consequence of the Appellant's refusal to release the title deeds and ordered the same to be assessed by the Deputy Registrar. 3.3 Regarding the second relief, the learned Judge determined that the Appellants refusal to surrender the title deeds constituted a breach of the terms of the Consent Order. 3.4 As for the third relief sought by the Respondent, the learned Judge viewed this as having been addressed at the interlocutory stage. He held that the decision was not final but was granted pending the hearing and conclusion of the matter by himself in the High Court. 3.5 Concerning the fourth relief, the learned Judge concluded that the Appellant should surrender the title deeds to the Respondent as the Respondent had fulfilled their loan obligation. He ordered that the title deeds be returned to the Respondent. 3.6 Regarding the fifth relief, the learned Judge found, based on the evidence, that the Respondent had suffered wrongs at the hands of the Appellant, having established that the Appellant breached the terms of the Consent Settlement Order. The learned Judge ordered the Appellant to pay general damages for these wrongs, to be assessed by the Deputy Registrar. He also ordered that costs of the action be taxed in favour of the Respondent by the Deputy Registrar, in default of agreement. J6 4.0 THE APPEAL 4.1 Dissatisfied with the outcome in the Court below, the Appellant filed its Notice and Memorandum of Appeal, on 23rd November 2023, fronting seven (7) grounds of appeal, namely; 1. That the Court below erred in law and in fact when it wrongfully held at page J18 and J19 of the Judgment that the Defendant claimed for and pursued a second mortgage action against the Plaintiff when there was no such claim or evidence on the record. ii. That the Court below erred in law and in fact when it held at page J20 of the Judgment that there was evidence that Tunta Mining Limited's overdraft facilities were secured by Stand No. 4665 Kitwe only and that the Defendant had no right to hold on to the title deed for Plot No. 7566 Kitwe, which the Court erroneously stated was in the name of the Plaintiff when there was no substratum of facts and no evidence supporting the finding. iii. That the Court below erred in law and fact when it held at page J22 of the Judgment that the Defendant pays to the Plaintiff USO 1,550,000.00 being sums for loss of business on a Joint Venture arrangement as a consequence of the Defendant's refusal to release the title deeds when there was no substratum of facts and evidence to prove the actual and special damages as required by law. iv. That the Court below erred in law and fact when it held at page J23 of the Judgment that when the Defendant declined to release the title deeds to the Plaintiff after the Plaintiff discharged its loan obligations the Defendant J7 breached the terms of the Consent Order notwithstanding that there was no term in the Consent Order that required the release of the title deeds. v. That the Court below erred in law and fact when it held at page J24 of the Judgment that the Defendant ought to and should release the title deeds to the Plaintiff because the Plaintiff had discharged their loan obligation notwithstanding that there was no legal or equitable mortgage between the Plaintiff and the Defendant pertaining to Stand No. 7566 Kitwe and Stand No. 1024 Solwezi. vi. That the Court below erred in law and fact when it held at page J22 of the Judgment that when the Plaintiff discharged their loan obligation the Defendant ought to have and should release the title deeds pertaining to Stand No. 7566 Kitwe and Stand No. 1024 Solwezi to the Plaintiff notwithstanding that a Judge of the High Court under Cause No. 2020/HPC/0577 had already determined that the discharge of the Plaintiff's obligations did not discharge Tunta Mining Limited's obligations therefore the properties were validly charged as security. vii. That the Court below erred in law and fact when it held at page J25 of the Judgment that the Defendant pays general damages arising from the Defendant's wrongful actions notwithstanding that there was no breach of contract by the Defendant and no substratum of facts or evidence upon which said damages should be paid. J8 5.0 PPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPEAL 5.1 We have duly considered and appreciated the Appellant's Heads of Argument filed on 22nd March 2024 and its arguments in reply of 14th May 2024. 5.2 The Appellant addressed grounds 1 and 2 together as they are closely related. In its argument, the Appellant submitted that it did not pursue a second mortgage action against the Respondent. It clarified that only one action was pursued against the Respondent for the recovery of the loan facility. Additionally, the Appellant explained that it did, however, pursue a separate action for the recovery of a debt owed by the Respondent's sister Company, Tunta Mining Limited, under Cause No. 2020/HPC/0577, which was exhibited before the trial Court at page 28 of the Appellants Bundle of Documents and appears at pages 208 to 231 of the Record of Appeal. 5.3 The Appellant argued that the trial Court's finding, which suggested that the Appellant was pursuing the Respondent for a second mortgage, contradicted the evidence showing that separate actions had been initiated against both the Respondent and Tunta Mining Limited. The Appellant contended that the record clearly indicated that there was no mortgage between the Appellant and the Respondent, as confirmed by the Respondent's witness during the trial. Therefore, the Appellant argued, for the trial Court to conclude that the Appellant was pursuing the Respondent for a second mortgage when no such mortgage existed between the parties, was a misapprehension of the facts, warranting a reversal of that finding by this Court, as no proper analysis had been provided for it. J9 5.4 It was further submitted that the Appellant's refusal to release the Certificates of Title to the Respondent concerning the Properties was not tantamount to the pursuance of a second mortgage action against the Respondent. Instead, it was simply a matter of the properties being pledged as security for a debt that had not yet been paid by Tun ta Mining Limited. The Appellant emphasized that the Respondent was not a party to the mortgage agreement that was executed by the Appellant and Tunta Mining Limited, and therefore, the Respondent had no locus to demand the release of the security. 5.5 The Appellant, in its arguments in support of ground 2, submitted that the trial Court erred in holding that Tunta Mining's overdraft facilities were secured by Stand No. 4665 l<itwe only. The trial Court ignored the evidence before it and went on to make a holding that was unfounded as there was no substratum of facts and evidence before the trial Court to support its finding. 5.6 In support of ground 3, it is the Appellant's submission that the Respondent failed to present any evidence at trial to substantiate its claim for the sum of US$ 1, 550,000.00 alleged to be the loss of business on a joint venture arrangement. The Appellant argued that the Joint Venture Agreement, which formed the basis of the Respondents claim, was not submitted before the trial Court. In the absence of the same, the Respondent's claim was unfounded and should not have been entertained by the trial Court. 5.7 Furthermore, it was argued that the Respondent failed to substantiate its claim for special damages at trial, and as such, the trial Court ought not to no have awarded the same, citing the case of Attorney General v Katwishi Kapandula1. 5.8 In support of ground 4, the Appellant drew our attention to the Consent Settlement Order which formed the basis of contention. It was argued that the basis of the Respondents argument with respect to the alleged breach of the Consent Settlement Order, was that, by refusing to release the properties to the Respondent after it had liquidated its debt under the Consent Settlement Order, the Appellant breached the terms of the Consent Settlement Order. It is the Appellant's submission that the Respondent failed lamentably in its duty to discharge its burden of proof as it did not lead any evidence to sustain its claim. 5.9 The Appellant submitted in line with the Courts holding under Cause No. 2020/HPC/0577, that if the terms of the consent settlement order were such that the Appellant was obligated to release the properties to the Respondent after the latter had settled its debt, the Consent Settlement order would have expressly stated such a provision. The Appellant submitted that there is no evidence of any commitment by the Appellant to release the properties nor is such a term included in the Consent Settlement Order. Further, the order did not contain any term obligating the Appellant to release the securities upon the Respondents debt repayment. Ultimately the Appellant relied on the case of Eastern Cooperative Union Limited v Yamene Transport2 arguing that the Respondent made an allegation which they failed to substantiate. Jll 5.1 O The Appellant proceeded to argue grounds 5 and 6 concurrently. The gist of the Appellant's argument is that the trial Court erred in law and fact when it held that the Appellant ought to have released the title deeds despite the Respondent's witness admitting to the fact that there was no mortgage between the parties and that there was a mortgage between the Appellant and Tunta Mining Limited which had not been discharged. 5.11 In arguing ground 7, the Appellant cited numerous cases on the law concerning the award of damages and argued that the issue of damages should not arise in this case as there were no contractual terms breached by the Appellant nor was there any breach of the Consent Settlement Order as discussed in ground 4. The Appellant contended that the Respondent failed to provide sufficient evidence to substantiate the claims made before the lower Court and given this failure, the lower Court should not have awarded damages to the Respondent. 6.0 RESPONDENT'S HEADS OF ARGUMENT 6.1 We have equally considered the Respondent's Heads of Argument filed on 24th April 2024. 6.2 The Respondent argued grounds 1,2,4,5 and 6 together. It was submitted that having paid its debts in full, the Respondent was therefore legally entitled to have its property returned to it by the Appellant. It is the Respondent's contention that where a mortgage has been discharged and the mortgagor has performed and satisfied all loan conditions and obligations, it is the duty of the mortgagee to surrender and re-convey to the J12 mortgagor any security that was pledged under the loan agreement or facility. It was further argued that the Respondent adhered to the Consent Settlement Order that directed the Respondent to pay the adjudged sum to the Appellant but the Appellant subsequently failed to release the same to the Respondent. 6.3 The Respondent submitted that the Appellant's refusal to release the title documents undermined the purpose of what a mortgage created over land is intended to achieve. The Respondent's main contention was that a mortgage had been created between the Respondent and the Appellant in respect of Stand No 7566 l<itwe and Stand No 1024 Solwezi. It was submitted that after fulfilling its obligations under the Consent Settlement Order, the Respondent requested for release of the title documents, but the Appellant refused. The Respondent claimed that this refusal was unreasonable and unlawful, causing them loss, injury and damages. 6.4 The Respondent addressed the issue of entitlement to an award of damages and combined grounds 3 and 7. The Respondent urged this Court to carefully review the Respondent's pleadings, particularly pages 33-37 of the Record of Appeal, the evidence at pages 252-257 of the Record of Appeal and the testimony of PW1. The Respondent argued that nothing pleaded was too remote or disconnected from the actions of the Appellant in declining to release the Respondent's Title Deed. 6.5 The Respondent submitted that the testimony of its witness demonstrated that the Appellant's refusal to surrender the title deed after the full repayment of the debt led to Seige Mining Limited terminating its joint J13 venture agreement with the Respondent, resulting in damages to the Respondent. 7.0 APPELLANT'S HEADS OF ARGUMENT IN REPLY 7.1 We have also reviewed the Appellant's Heads of Argument in reply filed on 14th May 2024, in which they have reiterated their arguments, all of which have been painstakingly considered. 8.0 THE HEARING 8.1 At the hearing, Counsel simply placed reliance on their heads of argument in support of their respective positions in the appeal. 9.0 ANALYSIS AND DECISION OF THE COURT 9.1 Although the Appellant has presented seven grounds of appeal as noted in paragraph 4 above, the thrust of its appeal and its heads of argument presented, place an obligation on the Court to view this appeal in the contextual matrix of three cases that were filed into Court, under three different cause numbers and with three different outcomes, by what appear to be related or sister companies on the part of the Respondent on the one hand, and the Appellant on the other hand, formerly known as lntermarket Banking Corporation Zambia Limited. 9.2 We have noted that the Respondent, in its heads of argument, appears to have opposed the seven grounds of appeal under two main issues. In its J14 submissions, the Respondent has advanced the two issues being whether the Bank was entitled to continue to hold on to the Title deeds despite the evidence in the Court below, that the Respondent had fully liquidated the outstanding facilities to the Appellant and in the face of a consent settlement order in which it undertook to release the Title deeds to the Respondent. By this line of submission, the Respondent has clustered the arguments under grounds 1, 2, 4, 5 & 6 together. 9.3 Secondly, whether the Respondent was consequently entitled to an award of damages and has dealt with grounds 3 and 7 to address the second issue. Irrespective, we will reveal our mind on the issues in contention. 9.4 The Appellant has presented its arguments under grounds 1 and 2 together. We are immediately alive with the argument that grounds 1, 2, 4, 5 & 6 all challenge findings of fact made by the lower Court, which we may reverse, only, if we find those to be perverse, made in the absence of relevant evidence and or upon a misapprehension of facts. Authorities abound that have established this principle, and we need not belabor this point, save to refer to a few of the cases such as Wilson Masauso Zulu v Avondale Housing Project Limited3 Zambia Breweries Plc v Kayungwa4, Pliable , Engineering Limited v Mwamba5 and Susan Mwale Harman vs Bani< of Zambia6 . 9.5 In support of its argument, the Appellant has referred to specific portions of the Judgment of the lower Court, namely at pages J18, J19, J20, J22, J23 and J24 which resulted in the findings, the subject of these combined five grounds. We have given an anxious ear to its heads of argument and refer to JlS paragraphs 2.4 to 2.46 thereof. The issue for our examination will undoubtedly traverse the three actions that we have referred to and determine which securities were held for which facility and whether the Appellant did in fact renege on its undertaking to release the securities. 9.6 We have scrutinized the statement of claim and the defence, (in this action), and have made reference to it in paragraph 2 above. We also note that per its claims endorsed at paragraph 2.4 ii above, the Respondent claimed as follows: "a declaration that the Defendant has breached the terms of the Consent Settlement Order dated 10th May 2016 upon its failure to · discharge and release the securities under the settled loan facility." 9.7 We have scrutinized the said Consent Settlement Order, noted on pages 156/7 which was entered under cause No. 2015/HPC/0333 (the first action). No matter which way we read it, the Consent Settlement Order makes no mention of the release of the securities. We have also noted that as per paragraph 7 of the defence of the Appellant (the defendant in the lower Court), the Consent Settlement Order was only with respect to the debt owed by the Respondent, Lunga Resources Limited. This is seen as a fact and pleaded as such. We have also not lost sight of the fact that even in the face of the Consent Settlement Order, the Respondent defaulted in the payment terms and as of 3rd February 2022, it was still in breach. This is admitted by paragraph 8 of the statement of claim at page 37. J16 9.8 At page 329, we note the following exchange with respect to the Consent Settlement Order: ''Direct the Court to the term of the consent settlement order that states that the defendant will release the mortgaged properties upon payment by the Plaintiff. Which term was breached? Final payment. Point me to the term. It is not there." 9.9 We have also looked at a letter seen on page 175, dated 3rd February 2022, referred to by the Respondent in paragraph 8 its statement of claim above, being a reminder to settle the amounts still outstanding from the Consent Settlement Order, from Messrs. Willa Mutofwe & Associates. A careful perusal of the letter reveals no undertaking, or at all, for the release of the securities. We are therefore, of the considered view that there was no undertaking whatsoever, either in the Consent Settlement Order, or in the letter by Counsel, which undertook that the Appellant would release the securities held in return for settlement by the Respondent. We also accept the argument that there was no security obtained against the facility obtained by the Respondent, and certainly none secured by a deed of mortgage, equitable or legal. 9.1 O We have also looked at the overdraft facility availed by the Appellant to Tunta, and a copy of the Deed of Mortgage between Lunga Family Trust Limited of the first part, Daniel Odutola Chushi Chishala, of the second part J17 and Tunta Mining Limited, the Customer, of the third part, to lntermarket Banking Corporation (Zambia) Limited. The said deed appears at pages 235 to 246. Page 245 clearly identifies the properties as Stand 7566 Kitwe and Stand 1024 Solwezi, the properties the subject of this appeal. 9.11 We have also had occasion to scrutinize the Judgment of Mbewe B. Jin the action under cause No. 2020/HPC/0577 appearing at pages 208 to 231 by which Judgment, it is clear that the properties were offered as security and were in fact mortgaged between the parties referred to in paragraph 9.10 above. There is no mention of the Respondent, Lunga Resources Limited in that action. 9.12 It is immediately clear that the lower Court totally misapprehended the evidence before it, in arriving at its finding that the Appellant claimed and pursued a second mortgage action against the Respondent, when in fact not. The lower Court further misdirected itself when it found that the overdraft facility availed to Tunta, was secured by Stand 4665 Kitwe, when in fact the deed of mortgage referred to in paragraph 9.10 above, shows without a shadow of doubt that the properties that were used as collateral were Stand 7566 Kitwe and Stand 1024 Solwezi. Page 245 is instructive. 9.13 We have no hesitation in setting aside the findings of fact, the subject of grounds 1 & 2 of the appeal. Although long winded, the heads of argument from paragraphs 2.4 to 2.46 clearly point to the misapprehension of the evidence by the lower Court. Grounds 1 & 2 are upheld. J18 9.14 It is as clear as day, that the findings the subject of grounds 1 & 2, led to the lower Court making further orders, and which as a necessary consequence of our determination above, must fall away as they have no leg to stand on. 9.15 Ground 3 challenges the award of the sum of USD1 ,550,000.00 payable to the Respondent, for alleged loss of business on a joint venture arrangement as a consequence of the Appellant's refusal to release the title deeds held by it. 9.16 It is trite that a Party claiming damages or loss of business, as the case may be, must place before the Court, evidence to substantiate the claim. The Supreme Court in the case of Savenda Management Services Limited v Stanbic Bank Zambia Limited,7 clearly guided and set aside the award made by the trial Court, on the basis that the said award was not substantiated and was clearly made on a misapprehension of facts. 9.17 In casu, and having already found that the securities held by the Appellant, were to secure the indebtedness of Tunta Mining Limited, a non-party in the appeal before us, and having already determined that there was no obligation on the part of the Appellant to surrender the title deeds, the order made by the lower Court must be set aside as there is no substratum of facts and evidence to prove the award of USO 1,550,000.00 as loss of business from the joint venture agreement. We set aside the order. Ground 3 is upheld. 9.18 It has been canvassed by the Respondent that this ground of appeal is based on a misapprehension by the Appellant, as there was no award for J19 special damages, the award made being confined to an award of damages which the lower Court was entitled to make. Whilst we agree with the Respondent that there was no claim or award for special damages, we are of the considered opinion that any further pronouncement on the matter is academic, as we have set aside the very finding on which the lower Court attempted to justify its award of damages. 9.19 We caution trial Courts, that even in circumstances where an award of damage is sustainable, the same can only be done in accordance with settled principles of law. The case of JZ Car Hire Limited v Malvin Chala and Scirocco Enterprises Limited8 is a decision of the Apex Court, which guided that a party claiming any damages must prove the damages. We stated the same in our Judgment rendered in the case of Hitech Logistics Limited v Ugondo Italian Style Limited9 In casu, we have also considered . the evidence before the lower Court, where, let alone substantiate the figure claimed, the Respondent did not even produce a copy of the so-called Joint Venture Agreement. This is noted from pages 324, 325 and 328. 9.20 At page 324, we have noted the following exchange from the transcript of proceedings in the lower Court: ''Is the joint venture agreement before this Court? Yes it is. Point the Court to the page where it is? No it is not before this Court." J20 9.21 At page 325 and 328, we note the following exchange: "Witness, is there evidence before this Honourable Court, on how you arrived at USO 1,550,00, yes or no? No Based on what you have read, do you have evidence before this Court, to prove the alleged invested sum of USO 325, 000? No Do you have any other evidence before this Court, to prove any investments that you made in relation to the joint venture? No" 9.22 In casu, the Respondent (as Plaintiff) claimed (see paragraph 2.4 (i) above): "Immediate payment by the Defendant to the Plaintiff of the total sum US$1,550,000.00 being sums for loss of business on a Joint Venture arrangement as a consequence of the Defendant action of not releasing the securities under a settled loan facility." 9.23 The lower Court simply adopted the colossal figure claimed for loss of business and awarded the same without any interrogation, which completely flies in the teeth of settled principles and case law. In a recent decision of the Supreme Court, rendered in the case of Emmanuel Mponda v Mwansa Christopher Mulenga, Christopher Mungoya and the Attorney General 10 the Apex Court, at page J42, with reference to liquidated , damages stated in the following terms: J21 " .... It is a matter of elementary knowledge indeed that the type of damages which are awarded on account of any proven tortious wrongs are wrongs of the second type, that is, unliquidated damages. Needless to say unliquidated damages are unspecified and, are therefore, subject to 'assessment' or 'establishment' or 'fixing' by the court." 9.24 It is our considered view, as guided by the Savenda Management Judgment, that the pleaded claim itself was so glaringly erroneous that the trial Judge was obliged to strike down the pleadings. The award by the learned trial Judge on the said claim, is nothing but acceptance of the submission in the form of pleadings. He does not sieve the evidence or attempt to analyze, assess or apply judicial reasoning or logic to it vis a vis the USD1 ,550,000 claimed. 9.25 For the Respondent to defend this outrageous award, by canvassing the argument that the damage suffered by the Respondent, flowed naturally from the refusal of the Appellant to surrender the Title Deeds, is an argument that has fallen on deaf ears. It is simply an attempt to jump on the gravy train. Reliance on McGregor on Damages1 will not assist the Respondent in trying to justify an award that has no leg to stand on, has not been proved and has no substratum of facts to support it. Ground 3 has merit, and we uphold it accordingly. 9.26 In dealing with ground 4, we are urged to look at the findings of the lower Court at page J 23 (page 31 ), when it found as follows: J22 "The terms of the Consent Settlement Order dated 10th May 2016, inter alia, were that the Defendant would discharge and release the securities once the loan is paid. When the Plaintiff discharged their loan obligations with the Defendant, the Defendant declined to surrender the title deeds to the plaintiff. Truly, I find this to be a breach of the Consent Order." 9.27 We have already found that there was no clause in the Consent Settlement Order (see paragraph 9.7 above), that obliged the Appellant to release the Title Deeds in that cause of action. The Consent Settlement Order has been revisited several times and is seen on pages 156/7. The Supreme Court in the case of Muyambango v Clement Banda 11 on the issue of unbalanced evaluation of evidence, stated as follows: ''Therefore, a finding of fact which is made in favour of one side of the story without any analysis as to how that side of the story has come to be accepted over the other is, certainly, perverse and cannot be allowed to stand." Clearly, and in our consideration, this statement can be applied to all the findings of fact made by the lower Court. This finding was a total misapprehension of facts and is accordingly set aside. Ground 4 is upheld. 9.28 Grounds 5 & 6 have already been settled by our determination that there was no obligation incumbent upon the Appellant to release or surrender the Certificates of Title relating to the properties in casu. We simply do not accept the submission by the Respondent, which we see again as a J23 wholesome attempt to mislead the Court and re-write the evidence in the appeal. To canvass the argument that the loans availed to Tunta Mining Limited, were not secured by a mortgage over Stand 7556 l<itwe, but rather Stand 4665 l<itwe and Stand 1024 Solwezi, are simply rejected as having no leg to stand on. We will achieve no benefit in reciting the arguments or the law extensively canvassed, save to state that grounds 5 and 6 have merit and are upheld. 9.29 With respect to ground 7, it is argued that the lower Court erred in ordering that the Appellant pay general damages arising from its wrongful actions. Again, it would serve no useful purpose for us to further interrogate this ground, which would be akin to flogging a dead horse, save to say that we will reserve our final remarks for the conclusion. Ground 7 has merit, and the order of damages is set aside. 10.0 CONCLUSION 10.1 The Appeal having been upheld; we note the quality of Judgment of the lower Court. We can do no better than end with the words of the Supreme Court in the case of Minister of Home Affairs, Attorney General v Lee Habasonda,12 when the Apex Court stated: "We must, however, stress for the benefit of the trial courts that every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities, if any, to the facts. Finally, a judgment must show the J24 conclusion. A judgment which only contains verbatim reproduction and recitals is no judgment. In addition, a court should not feel compelled or obliged and moved by any decided cases without giving reasons for accepting those authorities. In other words, a court must reveal its mind to the evidence before it and not just simply accept any decided case. " 10.2 A similar guidance was issued in the cited case of l(ansanshi Mine Plc v Maini Joseph Mudimina & Others13 in which the Supreme Court guided as follows: "in our view, there are four purposes of the judgment as enunciated by Justice Roslyn Atkinson, Supreme Court of Queensland: (a) to clarify your own thoughts; (b) to explain your decision to the parties; (c) to communicate the reasons for the decision to the public; and (d) to provide reasons for an appeal court to consider. It is particularly important that the losing party knows why he or she has lost the case. It is natural for someone who loses to feel disenchanted with the legal process, so it is important that the reasons for judgment to show that the losing party has been listened to, that the evidence has been understood, the submissions comprehended, and a decision reached." 10.3 In casu, it is clear that the learned trial Judge simply accepted the evidence of the Respondent. There was no evaluation, no attempt at any reasoning and no explanation as to why the trial Court preferred the evidence of one party over the other. The burden of proof in civil proceedings, as established J25 by seminal decisions such as the case Khalid Mohammed v The Attorney General 14 and the case of Clement H. Mweempe v AG and Others 15 were simply ignored, and the lower Court merely adopted the arguments and claims of the Respondent. ·10.4 In upholding this appeal as we have on all the grounds raised herein, we have no hesitation in setting aside the Judgment of the lower Court, with costs to the successful party, the Appellant here, and in the Court below. j M. J. SIAVWAPA JUDGE PRESIDENT -- F.M. CHISHIMBA A.N. PATEL S.C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J26