Zambia Industrial Commercial Bank Limited v Lunga Resources Limited (APPEAL No. 71 of 2024) [2025] ZMCA 14 (21 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 71 of 2024 OLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: /. 4 FEB 2025 REGISTRY · 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. 2. 3. 4 . 5. 5. 7. Attorney General v Katwishi Kapandula (1988-1989) ZR 69 Eastern Cooperative Union Limited v Yamene Transport (1988-1989) ZR Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 Zambia Breweries Pie v Kayungwa-SCZ Appeal No. 82 of 2006 Pliable Engineering Limited v Mwamba - SCZ Appeal No . 70 of 2017 Susan Mwale Harman vs Bank of Zambia -S CZ Appeal No. 191 of 2015 Savenda Management Services Limited v Stanbic Bank Zamb ia 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 Ita lia n Style Limited - CAZ Appeal No. 80 of 10. Emmanuel Mponda v Mwansa Christopher Mulenga, Christopher Mungoya and the Attorney General 11. Muyambango v Clem ent Banda -Selected Judgm en t 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 16th edition (Sweet & Maxwell) J2 1.0 INTRODUCTION 1.1. This is an appeal against the Judgment of Musona E. L. J; delivered on 21 st November 2023, in respect of an action commenced by the Respondent, (the Plaintiff in the lower court), against the Appellant (the Defendant below) seeking severa l 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. Refere nce to page numbers shall refer to th e Record of Appeal unless otherwise noted. 2.0 BACKGROUND 2 .1 For the purposes of this section, the parties shall be refe rred to as they appear in this Court. 2.2 The Respond ent commenced an actio n against the Bank on 30 th 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 th at between May 2012 and Ju ly 2013, it and its (unnamed sister company) did obtain overdraft facilities from the Appellant which were secu red by th ird party mo rtgages 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 t o discharge and release the securities under the settled loan facility. iii . An Ord er of Injunction restraining the Defendant whether by itself or its agents from further withholding the Certificate of Title relatin g 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 re lief the Court shall deem fit. 2.5 The Appellant caused to be fi led it s defence in which it named the sister company of the Respondent, as Tunta Mining Limited. (Tunta ). It also pleaded that th e fac iliti es availed to Tunt a, were secu red by a deed of third party mortgage over th e properties. 2.6 It was fu rt her its defenc e that Tu nta was not a Party to the Consent Order and t hat it (the Appellant Bank), co mmenced anoth er action against Tunta under cause Number 2020/HPC/ 0577 (the third action), to enforce the sec urity it held on account of th e default of Tunta. 2.7 It was the ultimate defence th at in th e third action, Judgment was ent ered in its favor on 29t h March 2023 and t he Bank was at liberty after a period of 120 days, to foreclose and take possession of the properties . 2.8 Th e defence is noted from pages 144 to 147. 3.0 DECISION OF THE LOWER COURT 3. 1 Upon hearing the matter, the lea rned Judge in the lower Court, de livered his Judgment on 23rd November 2023 where in he granted Judgment in favor of the Respondent. The Judgme nt, now the subject of appeal, is noted on pages 9 to 33 of volum e 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 re lease 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 Appe llant 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 th e Appe llant, 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 Diss atisfied with the outcome in the Court be low, the Appellant filed its Notice and Memorandum of Appeal, on 23rd November 2023, front ing seven (7) grounds of appeal, namely; 1. Tha t the Court below erred in law and in fact when it w ron gfu lly held at page J18 and J19 of the Judgm ent that the Defendant cla imed fo r 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 w hen it held at page J20 of the Judgment that there was evidence that Tunta Mining Lim ited 's overdraft facilities were secured by St and No. 4665 Kitwe only and that the Defendant had no right to hold on to the title deed for Plot No. 7566 Kitwe, which t he Court erroneously stated was in the na me of the Pla intiff when t here w as no substratum of fa cts and no evid ence supporting the f inding. iii. That the Court below erred in law and fact w hen it held at page J22 of the Judgm ent that the Defendant pays t o the Plaintiff USO 1,550,000.00 being sums for loss of business on a Joint Ve nture arrangem ent as a consequence of the Defendant's refusal to release the titl e deeds when there was no substratum of facts and evidence to prove the actual and special damages as required by law. iv. Th at the Court below erred in law and fact whe n it held at page J23 of t he Judgment that wh en the Defendant declined to release th e title deeds to t he 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 t he 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 Pla intiff 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 ob ligations therefore the properties were validly charged as security. vii. That the Court below erred in law and fact when it he ld at page J25 of the Judgment that the Defendant pays general dam ages arising from the Defendant's wrongful actions notwithstand ing 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 agai nst the Respondent for the recovery of the loan facility. Additionally, the Appellant explained that it did, however, pursue a separate act ion 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 th e Appellants Bund le of Documents and appears at pages 208 to 231 of the Record of Appeal. 5.3 The Appellant argued th at the tri al Court's finding, which suggested that the Appellan t was pursuing the Respond ent for a second mortgage, contrad icted t he evidence showing that separate act ions had been initiated against both the Re spondent and Tunta Mining Limited . The Appellant contended that the record clearly indicated that th ere was no mortgage between th e Appellant and the Respondent, as confirmed by the Respondent's witness during the trial. Therefore, the Appellant argued, fo r the trial Court t o conclude that the Appellant was pu rsuing the Respondent for a second mortgage when no such mortgage existed between th e parties, was a misapprehension of the facts, warranting a reversal of that finding by this Court, as no prop er 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 mo rtgage 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 th e security. 5.5 The Appellant, in its arguments in support of grou nd 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 t rial Court ignored the evidence before it and went on to make a holding th at 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 Re spondent fa iled to present any evidence at trial to su bstantiate its claim for the sum of US$ 1, 550,000.00 alleged to be the loss of business on a j oint venture arrangement. The Appellant argued that the Jo int Venture Agreement, which formed the basis of the Respond ents 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 th e Respondent fai led 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 grou nd 4, the Appellant d rew our attention to th e Consent Settlement Order wh ich 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 refusin g to release the properties to the Respondent after it had li quidated its debt unde r the Consent Settlement Order, the Appellant breached the terms of th e Consent Settlement Order. It is the Appellant's submission that the Respondent fai led lamentably in its duty to discharge its burden of proof as it did not lead any evidence to sustain its cla im. 5.9 The Appe lla nt submitted in lin e w ith the Courts ho lding under Cause No. 2020/HPC/0577, that if the terms of the consent settlement order we re 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 t erm inc lu ded in the Consent Settlement Order. Further, the order did not contain any term obligating th e Appellant to release the securities upon the Respondents debt repayment. Ultimately the Appellant relied on the case of Eastern Cooperative Union Limited v Yamene Transport 2 argu ing 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 re leased 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 grou nd 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 term s breached by the Appellant nor was there any breach of the Consent Settlement Order as discussed in gro und 4. The Appellant contended that the Respondent failed to provide sufficient evidence to substantiate the claims made before the lowe r 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 fu ll, 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 t he Appellant subsequently failed to release the same t o the Respondent. 6.3 Th e Respondent subm itted 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 th at a mortgage had been created between th e Respondent and the Appe llant in respect of Stand No 7566 l<itwe and Stand No 1024 Solwezi. It was submitted that after fulfi lling its obligations under th e Consent Settlement Order, the Respondent requested for release of the title documents, but the Appellant refused. The Respondent claimed that t his 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 Cou rt 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 noth ing 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 th at the testimony of its w itness demonstrated that the Appellant's refusal to surrender the title deed after the full repayment of the debt led to Seige Min ing Limited terminating its joint J13 venture agreement with the Respondent, res ult ing in damages to the Respondent. 7.0 APPELLANT'S HEADS OF ARGUMENT IN REPLY 7. 1 We have also reviewe d t he Appellant's Heads of Argument in reply filed on 14th May 2024, in which they have reiterat ed th eir argume nts, all of which have been painstakingly considered . 8.0 THE HEARING 8. 1 At the hearing, Counsel simply placed reliance on t he ir heads of argument in su pport of thei r respective positions in the ap pe al. 9.0 ANALYSIS AND DECISION OF THE COURT 9.1 Although the Appellant ha s prese nted seven grounds of appeal as noted in paragraph 4 above, the thru st of its appeal and its heads of argument presented, place an obligation on th e Court to view this appea l in th e contextual matrix of three cases that were filed into Court, und er three different cause numbers and with thre e diffe rent outcomes, by what appear to be re lated or sister co m panies on t he part of t he Respondent on the one han d, and the Appellant on th e other hand, formerly known as lntermarket Bankin g Corporation Za mbi a Limited. 9.2 W e have noted that the Respondent, in its heads of argument, appears to have opposed th e seve n grounds of appeal under two ma in issues. In its J14 subm issions, the Respondent has advanced th e two issues be ing whether the Bank was entitled to continue to hold on to the Title deeds despit e the evidence in the Co urt below, t hat the Respondent had ful ly liquidated the outsta nding facilities to th e Appellant and in the face of a consent settlement order in w hich it undertook to re lease the Tit le deeds to the Respondent. By this line of submissio n, t he Respondent has cluste re d the arguments under grounds 1, 2, 4, 5 & 6 together. 9.3 Secondly, whether the Re spondent was conseque nt ly entitled to an award of damages and has dealt w ith grounds 3 and 7 to address the second issue . Irrespective, we will reveal ou r mind on the issues in contention . 9.4 The Appellant has presented its arguments under grounds 1 and 2 together. We are im med iately alive w ith the argume nt that grounds 1, 2, 4, 5 & 6 all challenge findings of fact made by the lower Court, wh ich we may reve rse, only, if we find those to be pe rverse, made in the absence of relevant evid ence and or upon a m isap prehension of facts . Authorities abound that have established this principle, and we need not belabo r this point, save to refer to a few of t he cases suc h as Wilson Masauso Zulu v Avondale Housing Project Limited 3 , Zambia Breweries Plc v Kayungwa4, Pliable Engineering Limited v Mwamba 5 and Susan Mwale Harman vs Bani< of Zambia 6 . 9.5 In support of its argume nt, the Appe llant has referred to specific portions of th e Judgment of the lower Court, namely at pages J18, J19, J20, J22, J23 and J24 w hich resulted in the findings, the subject of these combined five grounds. We have given an anxious ear t o its heads of argument and refer to JlS paragraphs 2.4 to 2.46 thereof. The issue for our exam in ation wi ll undoubtedly traverse the three actions that we have refe rred to and determine which securities were held for which facility and whether the Appellant did in fact renege on its undertaking to re lease the securit ies. 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 c laimed as fo llows : "a declaration that the Defendant has breached the terms of the Consent Settlement Order dated 10th May 2016 upon its failure to · discharge and rele ase 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 und er cause No. 2015/HPC/0333 (the first action) . No matter which way we read it, th e Consent Settlement Order makes no mention of the re lease of th e securities. We have also noted t hat as per paragraph 7 of the def ence of th e Appellant (the defendant in the lower Court), t he Consent Settlement Order was on ly with respect to the debt owed by the Respondent, Lunga Resources Limited. This is see n 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 term s and as of 3rd Feb ruary 2022, it was sti ll in breach. This is admitted by paragraph 8 of th e statement of cla im at page 37 . J16 9 .8 At page 329, we not e the following exchange wit h 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 let ter seen on page 175, dated 3 rd February 2022, referred to by the Respondent in paragraph 8 its statement of claim above, be ing a rem inder to settle the amounts still outstanding from the Consent Settlement Order, from Messrs. Willa M utofwe & Associates. A careful perusal of th e letter reveals no unde rtaking, or at all, for the release of the secu riti es. We are the ref ore, of the cons idered view that the re was no undertaking whatsoever, either in the Co nsent Settlement Order, or in the let ter by Counsel, which undertook that the Appellant would release the securities held in ret urn for set tlemen t by the Respondent. We also accept the argument that there was no security obtained against the fac ility obta ined 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 f acility availed by the Appellant to Tunta, and a copy of t he Deed of Mortgage between Lunga Fami ly Tru st Limit ed of the fi rst part, Dan iel Odutola Chush i Ch ishala, 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, t he properties th e subject of this ap peal. 9.11 We have also had occasion to scrutinize the Judgm ent of Mbewe B. J in the action under cause No. 2020/HPC/0577 appearing at pages 208 to 231 by wh ich 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 t he lower Court totally m isapprehended the evidence before it, in arriving at it s f inding t hat the Appe lla nt claimed and pursued a second mortgage action against the Respondent, when in fact not. The lower Court further misdirected itself when it found that th e 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. Alth ough long winded, the heads of argument from paragraphs 2.4 to 2.46 clearly point to the m isapprehension 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 Appe llant'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 securiti es 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 th at th ere 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, t he awa rd made being confined to an award of damages w hich the lower Court was entitled to make. Wh ilst we agree with the Respondent that t here was no claim o r award for special damages, we are of t he conside red opin ion t hat any furthe r pronouncement on the matter is academ ic, as we have set aside t he very finding on which the lower Court attempted to just ify its award of damages. 9.19 We caut ion t rial Co urts, that even in ci rcumstances w here an award of damage is sust ainable, the same can only be done in accordance with settled pri nc iples of law. The case of JZ Car Hire Limited v Malvin Chala and Scirocco Enterprises Limited 8 is a decision of the Apex Court, which gu ided that a party claiming any damages must prove the damages. We stated t he same in ou r Judgm ent rendered in the case of Hitech Logistics Limited v Ugondo Italian Style Limited 9 . In casu, we have also considered the evidence before the lower Court, where, let alone substantiate the figure claimed, the Respo ndent did not even produce a copy of the so-called Joint Venture Agreement. This is noted f rom pages 324, 325 and 328 . 9.20 At page 324, we have noted the following exchange from t he transcript of proceedi ngs in th e lowe r 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 yo u 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 yo u made in relation to the joint venture? No" 9.22 In casu, the Respondent (as Pla intiff) 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 Th e lower Court simply adopted the colossal figure cla imed for loss of business and awarded the same without any interrogation, wh ic h 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 , Christ opher Mungoya and the Attorney General 10 , the Apex Court, at page J42, w ith reference to liqu idated damages stated in the following terms : J21 " .... It is a matter of elementary knowledge in de ed 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 'assessm ent' or 'establishment' or 'fixing' by the court." 9.24 It is ou r considered view, as gu ided by the Savenda Management Judgment, th at t he pleaded cla im itself was so glaringly erroneous that the trial Jud ge was obliged to strike down the pleadings. The award by the lea rned trial Judge on th e said claim, is nothing but acceptance of the su bmission in th e 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 th e USD1 ,550,000 c laimed. 9.25 For the Respo nd ent to defend t his outrageous award, by canvassing the argument that the damage suffered by the Res pon dent , flowed nat urally from the refu sal of th e Appellant to surrender the Title Deeds, is an argu m ent that has falle n on deaf ears. It is simply an attempt t o jump on the gravy tra in . Reliance on McGregor on Damages 1 will not assist the Responde nt in trying to justify an award that has no leg t o stan d on, has not been proved and has no su bstratu m of facts t o sup po rt it. Ground 3 has merit, and we uphold it accordingly. 9.26 In deali ng with ground 4 , we are urged to look at th e findings of the lowe r Court at page J 23 (page 31 ), w hen it found as follows: J22 "The terms of th e 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 obliga tions 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 fo und that there was no clause in th e Consent Settlement Order (see paragraph 9.7 above), that obliged the Appellant to re lease t he Title Deeds in that cause of action. Th e Consent Sett le me nt Order has been revisited seve ra l t imes and is seen on pages 156/7. The Supreme Cou rt in t he case of Muyambango v Clement Banda 11 on the iss ue of unba la nced evaluation of evide nce, state d as fo llows: ''Therefore, a finding of fac t which is made in favour of one side of the story without any analysis as to how that side of th e story has come to be accepted over the oth er is, certainly, perverse and cannot be allowed to stand." Clearly, and in our considera tion , t hi s state ment can be applied to all the fin dings of fa ct made by th e lower Court. Th is finding was a total misapprehe nsi on of fact s and is accord ingly set aside. Ground 4 is up held. 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 Res po nde nt, wh ich we see aga in as a J23 who lesome attempt to mislead th e Court and re -write the evidence in the appeal. To canvass the argume nt that the loans availed to Tunta Mining Lim ited, 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 w ill achi eve no benefit in reciting t he arguments or the law extens ively ca nvass ed, save to state that grounds 5 and 6 have merit and are upheld. 9.29 W ith respect to ground 7, it is argued that the lower Court erred in ordering t hat the Appellant pay genera l damages ari sing from its wrongf ul actions . Again, it would serve no useful pu rpo se for us to further interrogate this ground, which wou ld be akin to flogging a d ead horse, save to say that we will reserve our final rema rks for th e conclusion. Ground 7 has merit, and the order of damages is set aside. 10.0 CONCLUSION 10. 1 The Appea l having been upheld; we note t he quality of Judgment of the lower Court. We can do no better than end with th e words of th e Supreme Court in the case of Minister of Home Affairs, Attorney General v Lee Habasonda ,12 w hen the Apex Court stated: "We must, however, stress for th e benefit of the trial courts that every judgment must reveal a review of th e 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 judgmen t. 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 simi lar guidance was issued in th e cited case of l(ansanshi Mine Plc v Maini Joseph Mudimina & Others13 in which the Supreme Court gu id ed as fo llows: "in our view, there are four purposes of the judgment as enunciated by Justice Roslyn Atkinson, Supreme Court of Queens land: (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 clea r t hat the lea rned trial Judge simply accepted the evidence of the Respondent. Th ere was no eva lu atio n, no attempt at any reasoning and no explanat io n as to why th e trial Court preferred th e evidence of one pa rty over the other. The burde n of proof in civil proceedings, as esta blished J25 by se m inal dec isions suc h as th e case Khalid Mohammed v The Attorney General 14 and th e case of Clement H. Mweempe v AG and Others 15 were sim ply ignored, and th e lowe r Cou rt me rely adopted th e arguments and c laims of t he Res pondent. ·10.4 In uphold ing t his appeal as we have on all t he grounds ra ised herein, we have no hesit ation in setti ng aside th e Judgm ent of the lowe r Cou rt, w ith c osts t o th e successful party, th e Appella nt here, and in th e 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