Afrizone Global Merchants Limited v Bank of Zambia (APPEAL NO. 165 OF 2018) [2019] ZMCA 327 (29 August 2019)

1 ) ' IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 165 OF 2018 Hf>LDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AFRIZONE GLOBAL MERCH APPELLANT AND BANK OF ZAMBIA RESPONDENT Coram: Chashi, Mulongoti and Lengalenga, JJA On: 21st and 29th August, 2019 For the Appellant: B. Mapani (Ms.) of Messrs. Muya & Co, agents for Messrs. Mulenga & Wallace Advocates For the Respondent: L. Zulu, In-House Counsel, Bank of Zambia JUDGMENT CHASHI, JA delivered the Judgment of the Court. Cases referred to: 1. Leopald Walford (Z) Limited v Attorney General (1974) ZR 250 2. Mary Musambo Kunda v Attorney General (1993-1994) ZR 1 3 . Kafue District Council v Chipulu ( 1995 - 1997) ZR 190 4. Nkhata and Four Others v The Attorney General (1966) ZR 5. Attorney General v Marcus Achiume (1983) ZR 1 ' 6. Macha Rainsford Hanziba and 21 Others v Lusaka Water and Sewage Company CAZ - Appeal No. 111 of 2017 7. Hygrotech Zambia Limited v Greenbelt Fertilizers Limited SCZ Appeal No.138 of 2015 8. Wilson Masauso Zulu v Avondale Housing Project Ltd ( 1982) Z. R. 172 Legislation referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The Re - Denomination Currency Act, No. 8 of 2012 3. The Judgments Act, Chapter 81 of the Laws of Zambia Other works referred to: 1. Phipson & Elliot, Manual of the Law of Evidence , 11 th Edition (2001) 1.0 INTRODUCTION 1.1 This appeal 1s against part of the Judgment, on assessment, delivered by the learned District Registrar, Hon. W . Sinyangwe, of the High Court at Livingstone, dated 29 th March 2018, awarding the Appellant the sum of Kl 17,025.00 as cost of improvements effected on the Respondent's premises in Livingstone. 1.2 The core issu es upon which this whole appeal turns are: a ) Whether there was any impropriety on the part of the Appellant when it altered the figures in the 2008 priced report to reflect a re based currency in accordance with The Re-Denomination of the Currency Act2 • b) Whether the District Registrar was on firm ground when he relied on the Bill of Quantities in awarding the sum of Kl 17,025.00 as the cost of improvements and c) Whether the Appellant is entitled to interest on the sums found due. 2 .0. BACKGROUND 2.1 The background facts and circumstances surrounding this appeal are scarcely in dispu te. 2 .2 The facts, as can be deduced from the evidence on record, are that the Appellant and the Respondent entered into a tenancy of business premises namely; Plot No. 467, Mosi-0- ( Tun ya Road, Livingstone ("the demised premises"), which property belongs to the Respondent herein. The parties further agreed that the Appellant should carry out some improvements on the demised premises, which were commenced. However, before the same could be completed, the tenancy was terminated. 2.3 Subsequently, the Respondent commenced proceedings against the Appellant by way of originating notice of motion, seeking inter alia possession of the demised premises and recovery of unpaid accumulated rentals. 2. 4 Before the matter could be heard and determined by the High Court Judge , the parties on 4 th October, 2016 entered into a consent order, wherein it was agreed inter alia that: "The applicant shall compensate the respondent for the cost of improvements effected by the respondent on the demised premises which cost shall be assessed by the District Registrar in the absence of an agreement by the parties." 2.5 Following the terms of the consent order, the parties failed to agree on the cost of works carried out by the Appellant. 3.0 THE CASE AND ARGUMENTS IN THE COURT BELOW 3.1 This compelled the Appellant to take out summons for assessment before the learned District Registrar. The said application was accompanied by an affidavit in s upport d eposed to by James Mumbi Kayafa, the Managing Director in t h e Appellant Company. 3.2 In the said affidavit, the Appellant exhibited a priced report prepared by D & T Yard Enterprise ("the Contractor") who supervised the project and the cost of improvements was pegged at K587 ,013.27. 3.3 It was further deposed that, as a result of the said improvements, the value of the demised premises had increased as indicated by the valuation report at page 37 of the record of appeal ("the record"). 3.4 In opposing the application, the Respondent filed an affidavit in opposition sworn by Raphael Phiri, the Assistant Director in the Procurement and Maintenance Services Department of Bank of Zambia. 3.5 The Respondent asserted that there was no evidence adduced by the Appellant to support the amount which was being claimed as the cost of improvements. No receipts were produced to show what was procured by the Appellant, when it was procured, how it was used and cost of procuring it. The absence of the receipts casts doubt on the authenticity of the priced report. 3.6 In addition, it was averred that the prices indicated in the priced report were grossly inflated considering the period when the improvements were effected. In this regard, the Respondent exhibited copies of quotations of some of the materials contained in the priced report at current market prices to show that the cost of materials was still lower than those contained in the priced report even after a period of eight years. 3. 7 According to the Respondent, the cost of improvements could not exceed Kl 75,536.74 indicated in the Bill of Quantities (BoQ) submitted by the Contractor to the Appellant. 3.8 The Appellant filed a further affidavit, in which it was averred that the Appellant engaged the Contractor on 29th February 2008 to carry out construction works on the demised premises and that acting on the Appellant's instructions, the said Con tractor prepared a priced report detailing all the works done and the total cost of the project. 3. 9 According to the Appellant, during the construction period, the Appellant took photographs of the various stages of the project leading to the current stage as exhibited in the further affidavit. 3.10 It was the Appellant's averment that the Respondent's reliance on the BoQ was erroneous as it was a document merely estimating the costs of the initial stages of the project. In addition, that the photographs exhibited by the Respondent in the affidavit in opposition were taken during the preliminary stages of the construction depicting about 20% of the works done. 3.11 At the hearing of the application, the Appellant called two witnesses and the Respondent called one witness. 3.12 The Appellant's first witness was James Mumbi Kayafa, whose evidence was materially similar to that contained in the Appellant's affidavit in support and further affidavit. However, during cross examination, he admitted that there was no evidence on record in the form of receipts to show how the amount being claimed in the priced report had been expended. In the absence of the receipts, it was just his word that the said monies were paid out. 3.13 He further explained that, the Contractor prepared the priced report sometime in January 2009 and acting on the Appellant's request, the Contractor changed pages 1 - 9 of the report to convert the figures contained therein to rebased currency. He further confirmed that the original report prepared in 2009 was not before the lower court. 3.14 Still under cross examination, he avowed that, the variations in the amounts contained in the BoQ and the priced report were necessitated by the fact that the Respondent altered the original design the parties had agreed upon and that works to incorporate the new design were carried out from 31 st December 2008 to 9 th January 2009, after which, the priced report was prepared. 3. 15 The Appellant's second witness was Daison Muyata, the Contractor and consultant engaged by the Appellant. He asserted that he was contracted by the Appellant to undertake renovations and construction of some structures on the demised premises. Mr. Muyata and his team commenced works in 2008 for a period of four months when they were r equested to halt their works on site in order for some issues to be resolved. 3.16 He was subsequently asked to prepare a priced report of the works done, including the materials used and the cost of labour. Accordingly, a report was generated indicating a total cost of K587 , 013.27. With regard to the absence of receipts, he testified that he obtained information about the prices of the materials from local suppliers as well as receipts relating to other works he had done during that period. 3.17 He further explained that all the improvements seen by the District Registrar during his site visit, were works done by October 2008 and that he did not go back to the site to do more works on the premises neither did he see any new developments when preparing the report. He confirmed that, when he appended his signature on the priced report in 2008, the figures contained therein were in un-rebased currency. 3.18 The Respondent's only witness , Raphael Phiri, attested that the report exhibited in the Appellant's affidavit in support was falsified, on account that the said report was prepared in 2009 and yet the contents of the report were in a rebased currency long before the re basing exercise had been introduced in 2012. Secondly, that the figures contained therein were exorbitant and unreasonable. He further pointed out some of the materials in the report whose prices were inflated and compared them to invoices of materials at current market prices. 3.19 In cross examination, he admitted that a BoQ reflects the anticipated costs of a project and that when it is prepared, materials need not be available. He went on state that it was possible for there to be variations between a BoQ and the actual cost when the work is done. 3.20 With regard to the valuation of the property, he stated that the valuation of the property was not relevant as it had nothing to do with the cost of improvements. That the figure in the valuation report represents the market value of the property and not the value of the works executed by the Appellant. In re-examination, he stated that the change in the design was only approved on 16th February 2009 and as such, the new designs could not be executed because the works ceased in 2008. 4.0 DECISION OF THE COURT BELOW 4.1 Upon considering the affidavit evidence, the evidence of the witnesses, the parties' respective arguments and the site visit, the learned District Registrar found as a fact that there were some improvements effected on the demised premises. And that in December 2008, the Contractor was requested to prepare a priced report of the works done. The same was done and a report generated indicating a sum of K 587,013.27. 4. 2 The District Registrar took the view that if the construction works had been halted in October 2008 and the priced report prepared in January 2009, it was implausible for the figures in the report to be expressed in a rebased currency. This was confirmed by the Contractor who admitted that the figures 1n the document had been altered. 4. 3 The District Registrar further noted that, the pnces contained in the priced report were exaggerated when compared with the receipts produced by the Respondent, which were unchallenged by the Appellant. The District Registrar was of the view that the priced report had no supporting documents in the form of receipts to justify the amount which was being claimed. Based on the foregoing, the District Registrar discarded the priced report. 4. 4 Having done away with the priced report, the thrust of the District Registrar's conclusion turned on the BoQ produced by the Respondent, which he foun d to be credible as it was prepared by the Appellant's Contractor and it set out the works to be done at every stage and the figures contained therein were expressed in un-rebased currency. 4.5 In addition, he found that the BoQ revealed that 40% of the works had been done at the time the Contractor was requested to stop working and that there was unused material on site, as well as the total value of the works pending at the time the works were halted. In view of the works he had seen at the site, the District Registrar awarded the sum of Kl 17, 025,00 as cost of improvements. 4 .6 It is this conclusion that prompted this instant appeal. 5 .0 GROUNDS OF APPEAL 5.1 Dissatisfied with the District Registrar's assessments, the Appellant has appealed to this Court advancing nine grounds of appeal. Grounds four and seven were subsequently abandoned. The remaining seven grounds are couched as follows: 1. The Learned District Registrar erred both in law and fact when he based the assessment of cost of improvements, by the Appellant on plot number 467 Mosi-O-Tunya Road in Livingstone, on value of materials used only and ignoring the cost of labour involved. 2. The learned District Registrar erred in both law and fact, when he failed to award interest on the cost of improvements that he assessed. 3. That the learned District Registrar erred in law and fact by ignoring the Appellant's valuation report of the effected improvements on plot number 467 Mosi-O-Tunya Road in Livingstone. 4. That the learned District Registrar erred in law and fact when he held that the Appellant's priced report presented in a rebased currency amounts to impropriety. 5. That the learned District Registrar erred in law and fact by ignoring that the Appellant's improvements are as per status Exhibit "JMK6-11" and Exhibit "JMK2" (Revised Plan No: 11121/D sheet 03 of March, 2008). 6. That the learned District Registrar erred in law and fact when he held that "RP7" was the status of works done by the Appellant. 7. That the learned District Registrar erred in law and fact when he, even after the Respondent had accepted and estimated the Appellant's cost of improvements at Kl 75,536,074, however awarded an amount of Kl 17,025.00, a figure which is far below a figure admitted by the Respondent. 6.0 THE ARGUMENTS IN SUPPORT 6.1 At the h earing of this appeal, Counsel for either side confirmed having filed their respective heads of argument, upon which they relied. Mr. Zulu, Counsel for the Respondent indicated his wish to orally augment the written arguments. 6.2 The gist of the arguments put forward for ground one, was that, there was a grave misdirection on the part of the District Registrar when h e failed or ignored to include the cost of labour in his assessment. According to the Appellant, the findings of the District Registrar were not sound as he failed to take into account the evidence on record from RWl and RW2 to the effect that consultation services and labour costs h ad been incurred amounting to K132,551.38. To buttress their argument, reliance was placed on the consultancy and construction agreement appearing at page 90 of the record, the priced report at page 26 of the record and the photographs exhibited in the further affidavit. 6.3 It was argued that, the District Registrar offered no explanation as to why such costs were not included in the assessment, in light of the fact that he acknowledged having seen improvements during his site visit. 6.4 On ground two, the Appellant criticized the District Registrar's failure to award interest on the sum found due. It was argued that the Registrar did not exercise his discretion judiciously. According to the Appellant, the demised property was a commercial property and as such, the transaction between the parties was of a commercial nature, entitling the Appellant to an award of interest on the sum due. We were referred to Order XXXVI Rule 8 of the High Court Rules and the case of Leopold Walford (Z) Limited v Attorney General, 1 in support of this argument. 6.5 The Appellant argued grounds three, five and six together and submitted that the priced report was the only comprehensive, reliable and fair document depicting the nature of improvements and value of the works executed by the Appellant on the premises. The priced report together with other documentary evidence on record such as the valuation report, the revised plan and the photographs, sufficiently proved the Appellant's case on a balance of probability. As the evidence of RWl and RW2 corroborated the contents of the priced report. 6.6 It was further argued that a BoQ is s imply a document which consists of materials required at the preliminary stage of the construction project while a priced report on the other hand, is an all-inclusive document, which takes into account the cost of all materials used from start to finish including labour costs, transport and other costs required to complete the project. 6. 7 It was argued that, against the weight of the evidence on record, the District Registrar relied on isolated incorrect entries in the report to discard the priced report when the errors cited in the report do not go to the root of the claim. Further that, the quotations exhibited by the Respondents only reflected Lusaka based prices and did not take into account other costs such as procurement expenses, transportation and labour costs. 6.8 It was submitted that, the amount which was being claimed by the Appellant is a fair estimation as an upper ceiling of the costs of improvement while the sum of Kl 75 ,536.74 as the lower limit. That the BoQ does not take into account fluctuations of prices in the cost of construction and does not take into account vital components of construction such as transportation, mobilization, labour, equipment, machinery and statutory charges. 6. 9 In support of ground four, it was argued that the District Registrar fell into grave error when he found that presenting the Appellant's priced report in a rebased currency amounted to an impropriety. 6.10 According to the Appellant, the Registrar misapprehended the import and effect of The Re Denomination of the Currency Act2 . It was argued that the Appellant's act of converting the figures in the priced report into rebased currency was in accordance with the statutory requirement and provisions of The Re Denomination of the Currency Act2 . That this was by operation of the law and as such does not amount to fraud or impropriety. 6.11 As to the seventh and final ground of appeal, it was argued that the Registrar erred when he awarded the sum of Kl 17,025.00, a figure which is below the amount admitted by the Respondent as amounting to the cost of improvements. According to the Appellant, the Respondent admitted that costs of not less than Kl 75,536.74 were at least incurred by the Appellant and it follows therefore that the Registrar ought to have awarded a sum between Kl 75,536.74 and K587,013.00. 6 .12 The Appellant further submitted that it was aware that there were no receipts produced in support of its claim but that in the view of the peculiar circumstances and nature of the evidence, the present case could b e distinguished from the cases of Mary Musonda v Attorney General2 and Kafue District Council v Chipulu3 where the plaintiffs in the said cases not only lacked receipts but they did not have any other documentary proof as a basis for their claims, while in the present case, the Appellant produced before the court not only oral and documentary evidence but also photographic and physical evidence to support its claim. 6. 13 On t h e other hand, t h e learned Counsel for the Respondent fervently supported the District Registrar's Judgment in its entirety. 6. 14 The Respondent's point of departure in attacking the first ground of appeal was that contrary to the Appellant's argument, it was clear from the evidence on record that 1n arnv1ng at the assessed sum, the District Registrar took into account the cost of labour. We were referred to the BoQ appearing on pages 65 - 75 of the record, which according to the Respondent is a document that was prepared by the Appellant's Contractor before court proceedings were ever in the contemplation of the parties and the relationship between them was convivial. 6.15 The Respondent went on to submit that at page 75 of the r ecord, is a summation of the total amount required to complete the works which was indicated as K292,561.24. That from the total amount, 40% of the works done and materials on site amounted to Kl 17,025.00 which included 10% as contingencies and 35% as labour. Based on the documentary evidence, it was clear that the District Registrar considered not only the materials on site but also the cost of labour. 6.16 According to the Respondent, the District Registrar was on firm ground when he discarded the priced report and the contents therein relating to the labour charges, as the said document was falsified. 6.17 With regard to the District Registrar's decision to discount the evidence of the Appellant's witnesses to the effect that the cost of labour at 35% amounted to K132,55 l.38, it was argued that this is a finding of fact which can only be reversed by an Appellate Court if it is perverse or not supported by the evidence on record. Citing the case of Nkhata and Four Others v The Attorney General4 it was submitted that the Appellant has not demonstrated that this is an appropriate case in which we should disturb the findings of fact. 6.18 In support of ground two, it was submitted that the District Registrar was on firm ground when he made no award of interest on the assessed sum, as his duty was merely to assess and make no further awards in a matter already subject of a sealed consent order. To make further orders would be a violation of an express court order. 6.19 According to the Respondent, the consent order executed by the parties dealt with the awards respective to the parties. The awards in clauses 3 and 5 relating to rentals and cost of improvements, respectively, attracted interest in accordance with Order XXXVI Rule 8 of the High Court Rules and the case of Leopold Walford (z) Limited v Attorney General, 1which provides that a Judgment sum shall carry interest from the date of the cause of action to the date of Judgment. 6.20 That an award of interest in favour of the Appellant on the cost of improvements without a corresponding award of interest on the rentals to be paid to the Respondent by the Appellant would have the effect of inflating the amount due to the Appellant at the detriment of the Respondent. 6.21 In response to grounds three, five and six, it was submitted that the Appellant's arguments were centered on the priced report which contained falsifications and was rightly discarded by the District Registrar. 6.22 It was argued that while indeed a BoQ is a document prepared at a preliminary stage and consists of materials required for construction of a project, in the present case, the BoQ in question went further and provided a status update of the project indicating that 40% of the works had been done . It was contended that, it would have been erroneous for the District Registrar to have ignored this evidence on the basis that the status of the project was contained in a document ordinarily prepared during the preliminary stages of a project. 6.23 It was the Appellant's contention that the site visit by the District Registrar confirmed the contents of the BoQ and based on that observation, he awarded the sum of Kll7,025.00 which was consistent with the BoQ. This was further confirmed by the evidence of RW2 at page 149 of the record to the effect that all the improvements observed by the District Registrar during his site visit were effected by October 2008 and that the said improvements depicted 40% of the works done. 6.24 In response to ground four , the Respondent essentially supported the District Registrar's decision to discard the priced report. According to the Respondent, the Appellant's witness admitted in his evidence that pages 1 - 9 of the priced report were altered. Further that RW2 , who was the author of the document, at page 150 of the record , stated that the document he signed in 2009 was not the one before court. 6.25 The Appellant's argument that the figures in the 2007 priced report were altered to reflect a re based currency is an admission of their impropriety. That the original document though in existence was not produced in court. 6.26 There was further impropriety when the Appellant alleged that the original document prepared in 2008 was the same report produced in court. According to the Respondent, the Appellant's own arguments support the court's finding that there was impropriety. 6.27 It was further submitted that the provisions of The Re Denomination of the Currency Act2 do not in any way permit a person to alter a report and pass it off as an original document. That there was no legal justification for the Appellant's act of altering the figures. We were ref erred to the provisions of section 12 ( 1) of the Act which provides as follows: 1) An act to be performed under a legal instrument shall continue to be a valid act after the re denomination of the currency and shall be given legal effect. 6.28 It was argued that, based on the above prov1s10n, the priced report in its original form had legal effect and as such there was no need for the said document to be altered to satisfy the provisions of the Act. The only conclusion that can be drawn is that the document was fabricated with the intention of passing it off as the original document. 6.29 With regard to ground seven, it was submitted that the essence of the Appellant's argument in ground seven was based on a complete misapprehension of the Respondent's evidence. That the contents of the Respondent's affidavit in opposition and in particular paragraph 9 were merely to show the court that the total cost of the project h a d it been completed by the Appellant would amount to Kl 75, 536.74. As such the cost of improvement for the unfinished project could not exceed the said amount. It was contended that the District Registrar was therefore, on firm ground when it awarded the sum of Kl 17.025.00 as the cost of improvement. 7.0 DECISION OF THIS COURT 7.1 We have considered the appeal together with the arguments in the respective heads of argument and the authorities cited. We have also considered the Judgment of the learned District Registrar. 7.2 In order to address the issues indicated above, we will not consider the grounds of appeal in the exact order as they were presented by the Appellant. We will deal with ground four first, followed by grounds three, five and six which we shall consider together as they are interrelated, thereafter we will consider grounds one, seven and lastly ground two. 7.3 We are of the view that the Appellant's grievance in the fourth ground of appeal consists primarily of an attack of findings of fact. The Appellant attacks the District Registrar's finding that the Appellant's action of converting the figures 1n the priced report to r ebased currency amounted to an impropriety. According to the Appellant, the reason for converting the figures contained in the report to rebased currency was simply to comply with t h e statutory requirements and the provisions of The Re-Denomination of the Currency Act2 . 7 .4 It is settled law that an Appellate Court will not readily interfere with the findings of fact of a lower court. This principle was enunciated in the case of Attorney General v Marcus Achiume 5 where the Supreme Court guided on when an Appellate Court will reverse findings of fact made by a trial court, namely that: "The appeal court will not reverse .findings of fact made by a trial judge unless it is satisfied that the .findings in question w ere either perverse or made in the absence of any relevant evide nce or upon a misapprehension of facts, or that they were .findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make ... An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make, and entitles the appeal court to interfere." 7.5 And we carried similar sentiments in our recent decision of Macha Rainford Hanziba and 21 Others v Lusaka Water and Sewerage Company6 • 7.6 Therefore, for the Appellant to succeed on ground three, it must establish one of the factors referred to in the above cases in order to justify such interference. 7.7 From the evidence, available on record, it is incontestable that the Appellant undertook some renovations on the demised premises sometime in 2008 and it was agreed that the Appellant would pass on the cost of those renovations to the Respondent for reimbursement. Accordingly, the Appellant instructed the Contractor to prepare a priced report depicting the cost incurred 1n renovating the property for onward transmission to the Respondent. The amount indicated in the report was K587,013 .27. 7.8 However, prior to the priced report, the Contractor prepared a BoQ indicating the materials required for the project, cost of labour and also the works that had been done as at December 2008. According to the BoQ, at page 75 of the record, the total sum collected was K292,56 l ,235.00, less 40% works done and material on site amounting to Kll7,024 ,494.00, leaving a total pending cost of Kl 75,536,741.00. 7. 9 The District Registrar in analyzing the evidence addu ced, considered the two documents before him . He discarded the priced report on account of impropriety and that it contained grossly inflated prices. He further found that the said report had no supporting documents in the form of receipts to prove the amount claimed. 7 .10 The Registrar was then left with the BoQ, which he found to be credible and awarded a sum of Kl 17,025.00 as total cost of improvements. 7.11 We cannot fault the District Registrar's decision to do away with the priced report for the following reasons; firstly, on a perusal of the evidence on record, the Appellant did not produce the original priced report with un-rebased figures prepared in 2009 but only the purported report that was converted to a rebased currency. The fact that the Appellant produced other documents before the District Registrar such as the valuation report and the consultancy and construction agreement which were still in un-rebased currency raised suspicion as to why the Appellant felt the need to only convert the priced report. If, indeed, the Appellant was complying with the law as it has fervidly argued, all documents produced by the Appellant ought to have been converted into rebased currency. 7.12 In the circumstances of this case, it would have been prudent for the Appellant to exhibit the original document with the un-rebased figures. The absence of the original document casts doubt on the authenticity of the report and supports the Respondent's contention that the figures in the priced report were manipulated. 7 .13 The facts therefore, seem to suggest that the Contractor did more than just convert the figures to rebased currency but tampered with the unit, quantity of materials and consequently the total cost. It, therefore, proved difficult for the District Registrar to ascertain the authenticity of the priced report 1n the absence of the original document. 7 .14 In any event, it is the duty of the Court to consider all the evidence before it and make an appropriate award bearing in mind the currency that was obtaining at the time the Contractor prepared the documents. Alternatively, the Appellant had the option of inviting the court to take Judicial Notice of the fact that the priced report was prepared in 2008 and the figures therein were in un-rebased currency. 7 . 15 Based on the foregoing, we agree with the Respondent's argument that the priced report in its original form continued to have legal effect as per section 12(1) of The Re-Denomination of Currency Act2 and there was no legal justification for the Appellant's decision to convert the figures to re based currency. 7.16 The second reason advanced by the Deputy Registrar for doing away with the report was the lack of supporting documents to justify the claim contained therein. It is a cardinal principle of the law of evidence that he who alleges must prove his case. We are fortified in this position by the learned authors of Phipson & Elliot, Manual of the law of evidence 1 who stated this position as follows: "the general rule is that a party upon whom the persuasive burden of proof rests (i.e. usually the plaintiff) is entitled to a verdict if his evidence establishes a preponderance of probability in his favour. i.e. if he persuades the tribunal of fact that his version of the facts is more probable than that of his opponent." 7. 1 7 This principle has been aptly stated in a myriad of cases such as Hygrotech Zambia Limited v Greenbelt Fertilizers Limited6 and Wilson Masauso Zulu v Avondale Housing Project Ltd7 . 7.18 Therefore, the burden of proof rests on the party who alleges to prove its case on a preponderance of probability. There must be evidence that is sufficient to justify the allegations. In this instance, the Appellant bore the onus of proving its case against the Respondent on a balance of probability that they are entitled to the amount claimed as cost of improvements. 7.19 The Appellant has through the priced report alleged that they are entitled to K587,013.27 as cost of improvements. The evidence on record, however does not show how the said amount was expended, there was no evidence 1n the form of receipts before the District Registrar to show that K587,013.27 was spent on the execution of the project. 7.20 It is also important to note that the two documents in question, namely, the BoQ and priced report, were prepared by the Contractor to show the status of works as at December 2008 after the construction works had come to a standstill. However, what is interesting is the disparity 1n the amounts contained 1n the two documents. According to the BoQ, the total cost of improvements was K292,561,235.00 and in the priced report the total cost was K587,013.27. 7.21 RWl, the Appellant's witness in his evidence, attempted to clarify the disparity in the amounts contained in the documents, he stated that the variation in the amounts was necessitated by the fact that the Respondent • changed the original design they had agreed upon and as such more works had to be done between 31 st December 2008 and 9 th January 2009 when the priced report was signed. 7.22 However, his evidence was in direct contradiction with that of the Contractor who testified that the works came to a standstill sometime in October 2008 and that no other improvements were effected on the property. 7.23 We are of the considered view that the inconsistency in the evidence of the Appellant's witnesses went to the root of the Appellant's case and without a proper justification for why the amounts in the two documents differed significantly, the priced report could not be relied upon. The evidence of the Appellant in this case was far from satisfactorily. 7.24 While we do agree that indeed a BoQ is a document that estimates the cost of a project, in this particular instance as rightly pointed out by the Respondent, not only did the BoQ give an estimation of the costs, it went further to show the status of the works done as at December 2008. The Appellants did not sufficiently justify their claim of K587,013.27 against the amount contained in the BoQ. 7.25 It follows therefore, that the findings by the District Registrar were borne out of the evidence available to him and could not, by any stretch of imagination, be said to have been perverse or made in the absence of any relevant evidence or upon a misapprehension of facts. 7.26 We cannot fault the manner in which the District Registrar dealt with the matter refusing to rely on the priced report and instead relying on the BoQ. Ground four of the appeal fails. 7.27 The gist of the arguments around ground three, five and six is that the District Registrar erred when it based its decision on the BoQ and not the priced report which was a comprehensive and more reliable document. Further, that the District Registrar did not take into account the valuation report, the Appellant's approved Drawing plan and the photographs depicting the various stages of construction. • • 7.28 The reasons for not relying on the priced report have been clearly set out in paragraphs 7.11 - 7.27. 7.29 Coming to the valuation report found at pages 37 - 52 of the record, our understanding is that, a valuation report basically determines the market value of an asset surveyed, in this case, the asset being the demised premises. A perusal of the valuation report reveals that the purpose of the valuation was to determine the current market value of the old bank building and the new developments effected on the premises. The current market value of the demised premises as indicated in the report is K3,400,000.00. We note the Appellant's argument that the effected improvements increased the market value of the property. 7.30 While we do agree that the improvements might have increased the value of the property, we are at pains to appreciate the relevance of the valuation report in assessing the cost of those improvements. The Valuation report could in no way assist the District Registrar in his assessment of the cost of improvements. 7.31 With regard to the photographs exhibited 1n the Appellant's affidavit as depicting the stages of construction. The Appellant forcefully argued that the photographs confirmed the expenses 1n terms of transportation, materials, water, equipment, machinery and labour charges. 7.32 We have had sight of these photographs and in our view the photographs only confirm that some improvements were effected on the premises, which fact is not disputed. However, the photographs alone in the absence of any other evidence such as receipts could not assist the District Registrar 1n assessing the cost of the improvements, as they have no value attached to them. 7.33 As earlier alluded to, it is the duty of the party alleging to adduce sufficient evidence to prove its claim in order to avoid dismissal of the case. Aside from the priced report which was discarded, the Appellant did not produce sufficient evidence to .guide the District Registrar in this respect. 7.34 The Appellant through its first witness admitted that there was no evidence in form of receipts to justify its claim. It was stated in the case of Mary Musambo Kunda v The Attorney General2 , that the failure by the Appellant to produce evidence in support of their claim must react against them. In the present case, the failure by the Appellant to call the necessary evidence must react against it. Therefore, in the absence of any other evidence indicating how much was expended, the District Registrar rightly worked with what was before him, that is the BoQ. Ground three, five and six fail. 7.35 With respect to ground one, the Appellant argues that in carrying out the assessment of cost of improvements, the District Registrar did not take into account the cost of labour in the sum ofK132,551.38. 7.36 Having perused the BoQ, it is clear that in arriving at the total cost of K292,561,235.00, the Contractor had included the labour cost at 35% amounting to K75,849,235. At page 75, the labour cost of K75,849,235.0q was added to the total cost of K292,561,235.00. And below that figure, is the amount deducted from the total cost which represented 40°/c> of the works done and also the material on site. 7.37 It follows therefore, that the works done on the demised premises included all inputs; not only the materials but all other costs including labour. The Appellant did not adduce any evidence to support their claim that the labour cost was Kl32,551.38. Ground one fails. 7.38 Coming to ground seven, it has been argued in paragraph 6.11 that the Respondent admitted that the estimated cost of improvements was Kl 75,536,074. In order to determine whether the Respondent admitted to the sum of Kl 75,536.74, it is important to revisit the evidence of the Respondent. The Respondent's witness in the affidavit in opposition and in particular paragraph 9 deposed as follows: "That in addition, it is my estimation that the cost of improvements cannot in any event exceed the sum of Kl 75,536.74 which is the amount submitted by the Defendant in the Bill of Quantities for completion of all works, but which works were in fact never completed in full ... " 7.36 Further, 1n his oral evidence, Mr. Phiri testified as follows: ''Another reason I have used strong words is that the applicant in 2008 gave us a costing of what they spent on the project when there was no contemplation of litigation, they gave to the bank the cost on the project in December, 2008 (RP7). Then 9 days later they gave another report of January, 2009 to this Court. On "RPI 7" prepared by the applicant submitted to the bank. Total collection C, K292,561,325.00 in the currency then. Below that they stated less 40% works done and material on site not used K117,024,494.00. This is the cost incurred as at December, 2008 which we found believable as this was done without duress. After this no further work was done." 7.39 Our understanding of the above excerpts of the evidence of the Respondent is that Kl 75,536.74 represents the pending cost on works to be done while the K 11 7, 024 represents the works done and the materials on the site (which sum the Respondent found to be realistic). The above pieces of evidence in no way amounts to an admission by the Respondent. The District Registrar was therefore, on firm ground when he awarded the sum of K117, 025.00. Ground seven fails. 7. 40 Lastly, ground two of the appeal attacks the learned District Registrar's failure to award interest on the sum due. It is clear from a perusal of the record that indeed the District Registrar 1n awarding the sum of Kl 17,025.00 did not make an order as to interest. It appears that the District Registrar and Counsel on both sides were oblivious to the provisions of The Judgments Act3 , which provides for the award of interest on ... judgment debts. provides as follows: Section 2 of The J d u gments Act3 "Ev · d ery JU gment, order, or decree of the H. h C ourt or of a subordinate court whereb y any sum of money, or any . costs, charges or expenses, is or are to be payable to zg any person shall carry interest a s may be determined by the court which rate shall not exceed the current lending rate as determined by the Bank of Zambia from the time of entering up such judgment, order, or decree until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment, order, or decree." 7.41 In light of the foregoing provision, we are of the view that the Appellant's argument has merit. The wording of the above provision is couched in mandatory terms. And it is clear that the proceedings before the District Registrar were for assessment of a sum payable to the Appellant. The District Registrar ought to have awarded interest on the sum as per The Judgments Act 3 from the date of the Judgment to the date of payment. 7.42 The Respondent's argument to the effect that awarding interest would be a violation of the court's order is flawed. The Deputy Registrar misdirected himself when he failed to award interest. Ground two of the appeal succeeds. 7.43 Interest is awarded on the sum due from the date of the Deputy Registrar's Judgment to date of payment. 8.0 CONCLUSION 8.1 The upshot therefore, is that this appeal fails except to the extent highlighted above. Costs to the agreement. taxed 1n default of J. CHASHI COURT OF APPEAL JUDGE -·~;······· ~ ........................................ F. M. LENGALENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE I