Attorney General v Kalowo Mooto (Suing in his capacity as Secretary of Zambia Association of Timber Foroestry based Industries) (APPEAL NO. 21 OF 2023) [2024] ZMCA 299 (19 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO . 21 OF 2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: AND 'JIIIIJ 19 NOV 2024 REGISTRY APPELLANT KALOWA MOOTO (Suing in his capacity as Secretary of Zambia Association of Timber Forestry based Industries) RESPONDENT CORAM : Chashi , Makungu and Sichinga, JJA ON: 12th and 19th November 2024 For the Appellant: B. M Kamuwanga (Mrs)} Senior State Advocate and N. N Mbao (Mrs) Senior State Advocate} Attorney Generafls Chambers For the Respondent: K MwicheJ Messrs Christopher and Frightone Legal Practitioners} standing in for Messrs MAK Partners JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Philip Mhango v Dorothy Ngulube & Others (1983) ZR, 61 2. Intermarket Banking Corporation Zambia Limited v Graincom Investments Limited - SCZ Judgment No. 14 of 3. Zambia National Building Society v Ernest Mukwama Nayunda (1993) SJ 33 (SC) 4. Eastern Co-operative Union Limited v Yamene Transport Limited - SCZ Judgment No. 3 of 1989 5. Gemstar Holdings Limited v Afgri Corporations Limited - SCZ Appeal No. 183 of 2014 6. Wilson Masauso Zulu v Avondale Housing Project Limited ( 1982) ZR, 1 72 7. Charles Kajimanga v Richard Bornface Chiluba and Another - CAZ Appeal No. 43 of 2018 8. The Attorney General v Felix Chris Kaleya (1982) ZR, 1 9. Victor Konie v The Attorney General (1990 - 92) ZR, 20 10. Tryson Mtonga v Warren Ng'ambi (2016) Vol 1, 100 11. Zambia Breweries Plc v Lameck Sakala (2012) ZR, Vol 2, Rules referred to: 1. The Supreme Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling on assessment of damages by the learned District Registrar , Mr P. Tembo (DR) , delivered on 22 nd April 2022 . 1.2 In the said Ruling, the DR awarded the twenty (20) Respondents various amounts of monies as damages. 2.0 BACKGROUND 2.1 On 11 th May 2015, the Respondents who were the plaintiffs in the court below, commenced an action against the now Appellant , by way of writ of summons claiming the following reliefs: (i) An Order that the bans and suspensions imposed by the Minister and Permanent Secretary of the Ministry of Lands Natural Resources and Environmental Protection on the timber licences were illegal; (ii) Damages for loss of business; (iii) An Order directing the defendant to pay accumulated interest on the bans arising from the failure by the plaintiffs to service their bank loans due to the ban; (iv) Costs. 2.2 In the accompanying statement of claim, it was averred that the members belonging to the Respondent Association , all had sawmilling and concession licences which entitled them to harvest timber from their various designated concession areas permitted by the licences . That the licences had conditions and obligations and provided for circumstances when they could be suspended or revoke d. 2.3 It was averred that sometime in 2012 , the Minister in total disregard of the licences and the law, imposed a ban on the licences. That this was followed by several other bans and suspensions by the Permanent Secretary. That the bans and suspensions were illegal as the officers had no powers to impose them as they were done in violation of the terms and conditions of t h e licences and the law. 2 .4 It was furth er averred that as a result of the ban and suspensions, the Respondents suffered loss and damages 2.5 The Appellant settled its defence on 1st April 2016, which contained b are denials. 2.6 On 2 nd June 20 20 , the parties entered into a consent Order whose contents were as follows: "BY CONSENT of both parties It is hereby ordered as follows: 1. That the Defendant do hereby pay damages to the respective plaintiffs for loss of business to be assessed by the District Registrar 2. That each party, to bear its own costs ... " (underlining is ours for emphasis only) 3.0 ASSESSMENT ON DAMAGES 3.1 On 28 th June 2021, the Respondents took out summons for assessment of damages pursuant to Order 37 / 1 of The Rules of The Supreme Court 1 (RSC). The affidavit in support, as well as fu rther affidavits in support were dep osed to by Kalowa Mooto as the Respondents representative. Exhibited to the affidavits were the Respondents' financial statements mainly for the years 2011 , 20 12 and 2 0 13 , orders for timber , delivery n otes, reports by auditors, supply/ sale purchase contracts, various licences, letters of credit facilities, various court Judgments, bank statements and valuation reports. 3.2 Th e damages for loss for the period of the ban were tabulated in t he affid avit in support as follows: "Company Amount 1. Fallsway Timbers Limited Kl0l,030,080.00 2. Geka Timber 3. Zamvest Ltd 4. Trulog Timber Merchants 5 . Buchete Kuyanda Kl 1,3 74,250.00 Kl,250 ,000.00 K7 ,370 ,822.00 Kl ,370 ,000.00 6 . Maramba Development Company Ltd Kl,350 ,000 .00 7. Mongwe Timber Enterprises Ltd Kl, 155,000.00 8. Supersonic International Zambia Ltd K25 ,377,520.00 9 . Fullsum Investment Company Ltd K4 ,300 ,000 .00 10 . Chongwe Main Market Co-operative Society - Kl,031,040 .00 11. L. M Timbers K6,318,000.00 12. Gilitach Enterprises and Food Supply Kl , 165,000.00 13. Twesheko Women's Club K687,360 .00 14. Shekala Timber Works Ltd K8 ,911 ,800.00 15. Kashamba Timber Association KS,400 ,000.00 16. Shengtai Wood Investment Co. Ltd K14 ,000 ,000.00 17. Sikale Wood Manufacturers Ltd K65 ,789,070.00 18. Sharma Brothers 19. Roray Enterprise 20. Terrain Tamers Ltd K3 ,012 ,000 .00 Kl ,400 ,000.00 K6,800,000.00 3 .3 The record of appeal (three volumes) together with the supplementary record (the record) shows that the Appellant did not file an affidavit in opposition to the Respondent's affidavit in support of assessment . They did however as shown at page 1026 of the record, file an affidavit 1n opposition to a further affidavit. 3.4 The Appellant was not present at the hearing of the assessment, at which Kalowa Mooto led evidence and was not cross examined. The evidence by Kalowa Mooto was basically as contained in various affidavits . The parties were however given an opportunity to file final submissions . 3.5 The Respondents submitted that they had suffered monetary losses and damages due to the failure to supply timber and timber products to clients with whom they had contracts. That some companies closed down permanently after failing to service their loans to banks, resulting in banks foreclosing on the assets of the companies and other personal assets pledged as security. 3.6 According to the Respondents , they had all provided evidence of the loss as per the orders , contracts and audited accounts exhibited in the affidavits. That the orders and contracts show the losses suffered, which they could not perform on , due to the illegal ban. That the audited accounts show how the businesses were operating before the ban and the profits and losses they made or suffered before the ban. 3.7 It was submitted that the audited accounts were meant to guide the court on what the Respondents lost as a result of the ban. In respect of the law, it was submitted that the claims by the Respondents in the assessment in respect of loss of business are known as special loss. Reliance was placed on the case of Philip Mhango v Dorothy Ngulube & Others 1 where the Supreme Court held that: "Any party claiming a special loss must prove that loss and do so with evidence that makes it possible for the court to determine the value of that loss with a fair amount of certainty." 3.8 On its part, the Appellant submitted that , it is a well settled principle of the law that if a Defendant causes damage to a plaintiff's profit earning asset , the plaintiff is entitled to damages to compensate him for the profits lost during the period. That the assessment of such losses ought to be done cautiously to avoid unjustly enriching a plaintiff claiming loss. 3.9 According to the Appellant, the Respondent had not justified their claims . Reliance was placed on the case of lntermarket Banking Corporation Zambia Limited v Graincom Investments Limited2 , where the Supreme Court stated as follows: "It has been pointed out that no one is answerable indefinitely for the consequences of his actions, but that at the time he may well be saddled with responsibility for greater injury than he expects. Somewhere a line has to be drawn between the consequences for which a wrongdoer is liable and for which he is not." 3.10 According to the Appellant, it 1s not every claim that the Respondent have made that the Appellant ought to be held liable for. That some of the actions leading to the loss incurred were at the Respondents' own peril , for which the Appellant cannot be held liable for . 3 . 11 It was submitted that , it is a principle of the law that a plaintiff wishing to have damages assessed for loss of business requires to show proper records to support a claim for loss of income or profit from such business. That in this case, the Respondents have failed to adduce proper evidence to support their claims. The Appellant also relied on the Philip Mhango case where the law relating to proof of special damages , was outlined as follows: "It is of course for any party claiming a special loss to prove that loss, 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. However, we are aware that in Order to do justice, notwithstanding the indeference and laxity of most litigants, the courts have frequently been driven into making intelligent and inspired guesses as to the value of special losses on meagre evidence. In this case, it would have been easiest thing to call an expert witness, but the first plaintiff chose not to do so. The result is that the evidence presented to the court was unsatisfactory and in our opinion, the learned trial Judge would have been entitled either to refuse to make any award or to award a much smaller sum; if not a token amount in order to remind litigants that it is not part of the Judge's duty to establish for them what their loss is." (the underlining is ours for emphasis only). 3.12 It was submitted that in matters relating to assessment for loss of business and in particular where such losses are to be evidenced by financial statement of accounts, the court is under a duty to properly direct its mind to what the profits were prior to the losses claimed, in order to ascertain the claims being made. 4.0 RULING ON ASSESSMENT 4.1 After considering the summons, the affidavit evidence and the viva voce evidence by Kalowa Mooto , the DR proceeded on the following footing as stated at page R28, line 13: "Regarding the plaintiffs' claims, it is trite that a business can suffer economic damage arising from a variety of illegal conduct. Damages in such a case are determined with the view of putting the affected company in the same position it would have been if the illegal conduct was not committed. In the case of Zambia National Building Society v Ernest Mukwama Nayunda 3 the Supreme Court held that: The essence of damages have always been that the injured party should be put, as far as monetary compensation can go, in about the same position, he would have been had he not been injured. He should not be in a prejudiced position nor be unjustly evicted." 4.2 The DR then went on to determine the claims of each Respondent. In order to understand how he proceeded, we will only look at the assessment in relation to two Respondents namely , Fallsway Timber Limited and Geka Timber. 4 .3 The claim by Fallsway Timber Limited in the affidavit as earlier alluded to , was for Kl0l ,030 ,080.00. The DR considered the orders the company was not able to service during the period of the ban and the loss as a result of its inability to service the loans it obtained from the banks and awarded what it was claiming in the affidavits . The DR also awarded claims in respect of the company's failure to service it's loans, which led to the foreclosure of equipment. In addition, the DR awarded the claim for interest which the company had continued to pay to the banks. Most of the claims awarded were part of the reliefs endorsed on the writ of summons but did not form part of the consent Order for loss of business. 4.4 In respect of Geka Timber which in the affidavit was claiming the sum of Kl 1,374 ,2 50.00, the DR awarded the sums for the contract for the supply of timber, which the company was not able to fulfil. 4.5 All in all, the DR opined that the Respondents had succeeded and awarded them the following amounts: 1. Fallsway Timber Limited i. US$ 307,442.73 ii. ZMK 57,312,844.00 2. Geka Timber Limited i. R 3,192,000.00 ii. ZMK 7,346,390 3. Zamvest Limited i. ZMK3,510,200.00 4. Trulog Timber Merchants Limited i. ZMK 126,016.00 ii. R 23,800,000.00 iii. US$ 6,577,200.00 5. Buchete Kuyanda i. ZMK 3,550,700.00 6. Maramba Development Co. Limited i. ZMK 3,534,000.00 7. Mongwe Timber Enterprises Limited i. ZMK 3,523,300.00 8. Full Investment Co. Limited i. ZMK 124,722.00 ii. US$ 1,512,000.00 9. Chongwe Main Market Co-operative Society i. US$ 440,000.00 10. L. M Timber Limited i. ZMK49,255.00 ii. R25,200,000.00 11. Gilitach Enterprises & Food Supply i. ZMK 19,960.00 ii. US$ 440,000.00 12. Twesheko Womens Club i. ZMK 16,543.00 ii. US$ 1,100,000.00 13. Shekela Timber Works Limited i. ZMK 215,347.00 ii. US$ 7,260,000.00 iii. R 26,250,000.00 14. Kashamba Timber Association i. US$ 483,000.00 15. Shegtai Wood Investments Co. Ltd i. ZMK 66,230.00 ii. US$ 1,344,000.00 16. Sikale Wood Manufacturers Limited i. US$ 19,200,000.00 1 7. Sharma Brothers i. ZMK 273,858.00 ii. US$ 1,250,000.00 18. Terrain Timbers Limited i. US$ 1,250,000.00 ii. R 26,250,000.00 19. Supersonic International Limited i. ZMK 7,367,230.50 20 . Rho-Rhay Enterprises Ltd i. ZMK 2,310,000.00 ii. R 3,780,000.00 4.6 The DR ordered that the awards be paid with interest at the average short-term deposit rate from the date of writ to the date of the Ruling and thereafter at an average lending rate as determined by Bank of Zambia until full and final payments . 5.0 THE APPEAL 5.1 Disenchanted with the Ruling, the Appellant has appealed to this Court advancing the following three (3) grounds: (i) The learned District Registrar erred both in law and fact when he failed to determine the actual period of the alleged ban prior to accepting the claims made by the applicants; (ii) The learned District Registrar erred both in law and fact when he admitted evidence of financial statements for previous financial years as a basis to show and calculate losses incurred by the Respondents. The District Registrar awarded damages for the subsequent year when no direct extrapolation can be made based on sound financial principles that previous profits would be made in subsequent years; and (iii) The learned District Registrar erred both in law and fact by awarding excessive amounts to the Respondents against established principles of evidence 6.0 ARGUMENTS IN SUPPORT 6.1 In its arguments , the Appellant argued all the three grounds of appeal simultaneously. It was the Appellant's submission that in considering the damages, the DR neglected to determine the actual period of the alleged ban, which was from 8 th November 2012 to 30 th April 2014. That in so doing, the DR rendered the Appellant indefinitely liable. Reliance was placed on the case of Eastern Co-operative Union Limited v Yamene Transport4 on the limitation of the period of injury and on mitigation of losses. 6.2 According to the Appellant, the DR wrongly awarded damages for previous years and subsequent years after the ban was lifted and also damages for contracts that had expired and licences that had not been renewed. 6.3 It was contended that 1n making the awards, the Respondents have b een unjustly enriched at the expense of the Appellant. Reliance was placed on the case of Gems tar Holdings Limited v Afgri Corporations Limited5 where the Supreme Court held as follows: "It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of, or some benefit derived from another which is against conscience he should keep." 6.4 We were urged to reverse the findings by the DR based on the case of Wilson Masauso Zulu v Avondale Housing Project Limited6 , which sets out as to when an appellate court can interfere with findings of the trial court when the findings were perverse and a misapprehension of facts and evidence. We were urged to set aside the Ruling on assessment and Order that a fresh assessment be done. 7.0 ARGUMENTS OPPOSING THE APPEAL 7 .1 The Respondent filed its heads of argument on 6 th March 2023, and argued the three grounds of appeal separately. In respect of the first ground, it was submitted that there was never a controversy between the parties as to the period of the ban. That the period of the ban was from November 2012 to February 2015. Our attention was drawn to paragraph 94 of the record. That the Appellant's contention that the period of the ban was from November 2012 to 30 th April 2014 was not correct. 7 .2 It was submitted that the DR demonstrated that he considered the affidavit evidence before him and that it was on the basis of that evidence that he reached his decision . 7 .3 According to the Respondent, the matter having been settled by consent Order, the parties understood that the issue of liability had been settled and what remained was the issue of quantum of damages , which was the assessment before the DR. Our attention was drawn to the case of Charles Kajimanga v Richard Bornface Chiluba and Another7 , where we held as follows : "An assessment is a hearing to determine what is due to the successful party or what was awarded. It is not for the Deputy Registrar on assessment to hear the case and possibly reverse findings of fact which were made by the High Court and upheld by the Supreme Court." 7.4 As regards the second ground , it was submitted that the DR in assessing damages, followed the principle in Inter Market Banking Corporation Zambia Limited, which was advanced by the Respondent and heavily supported by the Appellant. That it is therefore surprising that the Appellant is now appealing against its own position . That the correct position of the law as was laid down in the afore stated case , being that were losses are evidenced by financial statements of accounts, the court has a duty to properly direct its mind to what the profits were prior to the losses being claimed, is the correct position. 7.5 According to the Respondent, the claims for loss of business in this matter were substantiated by documentary evidence of failed orders which the Appellant also referred to before the DR and the financial statements of account. 7.6 In respect of the third ground, the Respondent refuted the Appellant's contention that the court awarded excessive amounts to the Respondent against established principles of evidence . It was submitted that all the amounts awarded were supported by documentary evidence of business transactions in nature. 7. 7 It was further submitted that the issue of the Respondent being unjustly enriched at the Appellant's expense 1s unfounded . That there 1s nothing 1n the awards to show unjust enrichment. 7.8 According to the Respondent, the Deputy Registrar did not apply any wrong principle nor misapprehend the facts. That the award was not so high as to be utterly unreasonable nor was it an entirely erroneous estimate of damages. We were urged not to interfere with the assessment by the DR and dismiss the appeal with costs. 8.0 OUR ANALYSIS AND DECISION 8.1 We have considered the arguments by the parties and the Ruling on assessment which is being impugned. We shall consider all the three grounds together as they are en twined and are basically questioning the approach taken by the DR in his assessment of damages for loss of business. 8.2 The Appellant is asking this Court to interfere with the award of damages by the DR, by having the Ruling set aside and ordering a fresh assessment of damages . This Court has the powers to do so in certain circumstances as set out in the case of The Attorney General v Felix Chris Kaleya 8 where the Supreme Court held inter alia as follows: "Before an appellate court interferes with the findings of the trial court as to the amount of damages, it must be shown that the trial court has applied a wrong principle or has misapprehended the facts or that the award was so high or low as to be utterly unreasonable or is an entirely erroneous estimate." 8.3 Equally, in the case of Victor Konie v The Attorney General9 , they had this to say: "An appellate court will not reverse t he court a quo on award of damages unless it is shown that the latter applied a wrong principle or m isapprehended the fac t s or that t he award was s o high or s o low as to be utterly unreasonable or that the estimate of damages was so erroneous as not to reflect the damages to which the plaint iff is not entitled." 8.4 In the recent case of Tryson Mtonga v Warren Ng'ambi 10 the Supreme Court held that an appellate court would only interfere with the quantum of assessed damages on the ground that the trial court acted upon some wrong principle of the law or that the amount awarded was manifestly too high or low. 8.5 It is evident from the consent Order of 2 nd June 2020, that, what was referred to the DR, was strictly assessment of damages for loss of business and nothing more. These are also referred to as lost business profit damages. Lost profits can only be recovered as special damages when they are proven with reasonable certainty, as a direct result of the breach and not result from other intervening factors. 8.6 A business with a lost profit must prove it was reasonably certain it would have earned profits, but for the conduct or incident at issue. To decide the amount of damages for lost profits, the business must prove the gross amount it would have received and then subtract from that amount the expenses that the business would have incurred had the incident or conduct not occurred. The understanding is that, the amount of lost profits need not be calculated with mathematical precision, but there must be a reasonable basis for computing the loss. 8.7 Although there are no adequate guidelines in our jurisdiction in respect to assessment of damages for loss of business, the case of Inter Market Banking Corporation Zambia Limited (supra) sets out some basic guidelines. That case was an appeal against the decision of the Deputy Registrar (DR) on assessment of damages following a consent Judgment by the parties. 8.8 At the assessment, the Respondent was awarded inter alia: (i) The sum of K201,606, 104.54 for loss of use of the seized monies; (ii) K30, 942,780.00 for loss of profit; (iii) K908, 000. 00 for refund of bank charges. 8.9 One of the grounds of appeal was that the DR erred in both law and fact by awarding the Respondent damages for loss of business in the sum of K30,942,780.00 , by entirely and exclusively relying on the deposits made in the Respondent 's bank account over a period of seven months. That the award was made in the absence of relevant and satisfactory evidence to prove a loss of that nature in the circumstances of the case. 8.10 The Appellant's contention was that the formula used in arriving at the monthly profits and which was wholesomely adopted by the DR was in consequence of a total misconception of facts and misapplication of law relating to award of damages, more so , that the Respondent 's financial statement for the year ended 31 st March 2007, shows that between 1st April 2006 and 31 st March 2007, the Respondent had made a net profit of K34,812,657 .00. That this meant that the average monthly profits on dividing the annual profits by twelve months was K2,091,054.75. It was contended that there was therefore no need for the DR to use the annual gross turnover of K355,000,000.00, when the financial statement itself showed that the Respondent was making an average monthly profit of K2,901 ,054 .75. 8.11 In its Judgment , the Supreme Court observed that the DR in his ruling made no reference to the Respondent's financial statements . They then went on to opine as follows: "We find this approach to be curious and extraneous because those receipts on their own are irrelevant to the process of determining the average monthly net profit for a business. The correct approach, in our view, should have been to refer to the Respondent's financial statement of account which were already before the court. This report clearly shows that the profit for the year ending 31 st March 2007, was K34,812,657. 00." 8.12 They then went on to state as follows: "We agree with the learned Counsel for the Appellant that had the learned DR properly directed his mind to the evidence in the Respondent's financial statements approved by the Respondent's board of directors on 24 th July 2008, he would have found that the Respondent's annual profit for the year ending 31 st March 2007, was K34,812,657.00 and therefore that the average monthly net profit was not more than K2,901,054. 75. The monthly net profit factor permeates both grounds 1 and 2 of the appeal in that the calculations approved by the learned Deputy Registrar took into consideration the incorrect figure of KS,157,130.00, as the average profit per month. Inevitably this was a misdirection because the available evidence did not support the findings by the learned Deputy Registrar." 8.13 We have gone to great lengths to quote from the Inter market Banking Corporation Zambia Limited case, to show that one of the fundamental documents to be relied upon in assessment of damages for loss of business or profits is the financial statements which would assist in formulating the net monthly profit. Although the financial statement were available , the DR in the assessment made no reference to them . In addition , the DR did not formulate any formula and arrive at the net monthly profit and neither did he take into consideration and apply the period of the ban. What the DR did was to instead wholesomely adopt the claims which were put forward by the Respondents in their affidavits in respect to orders and unfulfilled contracts and other extraneous factors without any evaluation. The failed orders and contracts on which the DR premised the awards should basically have been a secondary consideration and not the basis for the award . 8.14 In faulting the DR, in his assessment, we note that from the onset, he proceeded on the footing as if, he was assessing general damages or compensation or loss of opportunity damages and not special damages for loss of business or profits. Secondly, he proceeded without any formula and instead wholly adopted what was being claimed. In other words, there was no assessment at all. It should be noted that special damages are not based strictly on compensation. In the case of Zambia Breweries Pie v Lame ck Sakala 11 the Supreme Court held that where there is no evaluation of evidence at all, there was no assessment of damages. In casu, the DR had ample documentation before him, but made no attempt at evaluating the same. 8.15 Arising from the Inter Market Banking Corporation Zambia Limited case, it is important to note that, there should be sufficient financial records at the assessment, such as financial statements showing income, balance sheet and cash flow statements. Based on that, the DR should assess the net monthly lost profits and multiply the same with the period in which the damages occurred. Also, to be taken into consideration are avoided and mitigated costs. As was held in the Tryson Mtonga case, the plaintiff is obliged to take all reasonable steps to mitigate the loss and cannot recover damages for any such loss which he failed through inaction to avoid. Also expected growth and industry specific comparisons, as well as earlier alluded to, failed orders and contracts. 8 .16 As emphasized by the Supreme Court in many cases, such as the Philip Mhango and The Zambia Breweries Pie, when it comes to involving assessment cases on special damages as was the case in this matter, which involved complex claims for colossal amounts, it is inevitable to engage expert witnesses such as accountants, economists or business valuators. The expert witnesses will be able to assist the court in determining the amounts at stake. They will calculate and provide testimony as to what would have happened financially had the event in question not occurred. They will also be able to accurately depict what happened financially and separate the effects of the breach from other factors which might have contributed to the lost profits. 9.0 CONCLUSION 9 .1 In the view that we have taken, this is a proper case for setting aside the Ruling on assessment as the DR failed to evaluate the evidence, applied the wrong principles and also the estimate of damages was so erroneous as not to reflect the right damages. The Ruling by the DR is accordingly set aside and the matter sent back before another DR for fresh assessment of damages, at which assessment the guidelines given in this Judgment should be followed and an expert witness(es) should be engaged and made available to assist the DR in arriving at the correct awards. e Order that each party bears its own costs. J. CHASHI COURT OF APPEAL JUDGE C. K MAKUNGU COURT OF APPEAL JUDGE ,SC LJUDGE