Advance Transport Limited v Landmark Carriers Limted and Anor (APPEAL NO. 143 OF 2023) [2025] ZMCA 95 (17 July 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 143 OF 2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: - ' VIL REGISTRY ) • -,# ADVANCE TRANSPORT LIMITED APPELLANT AND LANDMARK CARRIERS LIMITED 1 ST RESPONDENT SAVENDA GENERAL INSURANCE LIMITED 2ND RESPONDENT CORAM: Chashi, Makungu and Chembe , JJA ON: 18th June and 17th July 2025 For the Appellant: C. Tafeni, Messrs Suba, Tafeni & Associates For the 1st Respondent: J. Tembo, Messrs P. H Yangailo & Co For the 2 nd Respondent: N/A JUDGMENT CHASHI JA, d eliver ed the J u dgm ent of the Court. Cases ref erred to: 1. Nyirenda & Others v Kwalala - SCZ Appeal No. 32 of 1993 (1994) ZMSC, 161 2. Lumus Agricultural Services Limited & Another v Gwembe Valley Development Limited ( 1999) ZR, 1 -J2- 3. Muwindwa Mutemwa Mufundi (Married Woman) v Meanwood General Insurance Limited - CAZ Appeal No. 155 of 2020 4. JZ Car Hire Limited v Malvin Che la & Another -SCZ Judgment No. 26 of 2002 Legislation referred to: 1. The Authentication of Documents Act, Chapter 75 of the Laws of Zambia Other Works referred to: 1. Halsbury's Laws of England, 4 th Edition, Re-issue 2. Black's Law Dictionary, Eighth Edition, Brian D. Garner Thomson West 1.0 INTRODUCTION 1.1 This 1s an appeal against the Judgment of Honourable Mrs Justice A. Ntambo-Sitali, delivered on 15th February 2023 . 1.2 In the said Judgment, the learned Judge dismissed the Appellant's claims for transportation costs of the vehicle to South Africa and the repair costs. The Appellant was however awarded the sum of K30 ,000.00, against the 2 nd Respondent, b eing the limit of the full third-party insurance cover. The Appellant was also awarded K2 ,075.00, in respect to special damages incurred . In -J3- addition, the learned Judge awarded the Appellant damages for inconvenience, to be assessed by the Registrar. 2.0 BACKGROUND 2.1 The Appellant who was the plaintiff in the court below, commenced an action against the Respondents , which was subsequently amended on 15th March 2022, claiming the following reliefs: (i) Damages for negligence (ii) Repair costs in the sum of ZAR 196, 560. 75 (iii) Damages for loss of use in the sum of US$14,000.00 (iv) Damages for inconvenience (v) Special damages (vi) Costs of and incidental to the proceedings (vii) Interest on the sum found due from date of the accident 2.2 According to the attendant statement of claim, on 19th May 2021, the Appellant's Mercedes Benz Truck registration No. ACZ 1790, (the Vehicle), was hit into by the 1st Respondent's motor vehicle, which caused extensive damage . The 1st Respondent's vehicle was -J4- insured by the 2 nd Respondent. According to the Appellant, the accident was caused by the negligence of the 1st Respondent's servant in the course of his duties . The Appellant particularised the negligence. 2.3 The Appellant also provided particulars of special damages and averred that it had suffered loss, damage and inconvenien ce. It was further averred that, the Appellant's insurer on 6 th June 2021, informed the 2 n d Respondent about the accident and availed them the followin g documents: (i) Copy of police report (ii) Copy of driver's licence (iii) Copy of fitness certificate (iv) Copy of insurance certificate (v) Copy of white book (vi) Incident report with pictures of the damaged unit 2 .4 The 1st Respondent settled its defence on 23rd December 2021 and disputed that the Appellant had suffered special damages in the amounts stated and averred that it was not availed with full documentation relating to the -JS- Vehicle accident; in order for it to have an assessor assigned to agree on the costs of repair at a local garage, as is standard practice when a vehicle accident of that nature occurs. 2 .5 It was further averred that it was not given an opportunity to inspect the Vehicle to assess the extent of the alleged damage and appreciate the extent of the loss. According to the 1st Respondent, requests were made by the 2 nd Respondent, for it to be availed with a claim form and quotations from local garages for the purposes of the parties being given an opportunity to agree on the best quote and thereafter repairs could be undertaken on the Vehicle at a reasonable price. 2.6 It was averred that the 2nd Respondent was only given a copy of the police report, drivers licence and an incident report, which were insufficient to process the insurance claim. That the Appellant proceeded to have the Vehicle repaired in South Africa and thereafter, merely availed the 1st and 2nd Respondents with a copy of an invoice for repairs. -J6- 2. 7 According to the 1st Respondent, the Appellant did not satisfy the request for documentation for lodging a claim. That while the Appellant may have had a valid claim, certain criterion had to be met and procedure followed for the claim to be actioned. That had the Appellant followed the correct procedure, the Vehicle could have been repaired locally at a reasonable sum. It was the 1st Respondent's averment that the sums being claimed by the Appellant were exorbitant and excessive. 2.8 The 2 nd Respondent settled its defence on 11 th May 2022 and denied the claim for special damages. It averred that the Appellant did not follow the standard procedure to fully document the claim. Despite the 2 nd Respondent advising the Appellant and its insurance broker of the requirement to avail it with the third-party claim form and three local quotations, the Appellant did not comply, despite repeated requests. That the Appellant only availed a police report, drivers licence and an incident report which were not sufficient to process the third-party insurance claim. -J7- 2.9 It was further averred that the Vehicle was supposed to be inspected by the 2 n d Respondent's assigned assessor after full documentation of the claim. That neither the 2 nd Respondent nor its assigned assessor were given the opportunity to inspect the Vehicle to assess the extent of the alleged damage and appreciate the extent of the loss thereof. 2.10 The 2 nd Respondent averred that the Appellant without notifying the 2 nd Respondent, proceeded to transport the Vehicle to South Africa and had it repaired. Thereafter the 1s t and 2 nd Respondents were merely availed with a copy of the invoice for repairs. 2 .11 According to the 2 nd Respondent, had the Appellant or its broker availed it with full documentation as requested, that is the third party claim and three local quotations, the Vehicle could have been repaired locally at a reasonable and considerable sum and the 2 nd Respondent could have been liable to a total sum of K30 ,000.00, as its third party liability limit as per the certificate of motor vehicle insurance executed between the 2 nd Respondent and the 1s t Respondent. -JS- 2.12 The 2 nd Respondent denied that the Appellant is entitled to any reliefs at all from the 2 nd Respondent and averred that had the procedure been followed , the 2 nd Respondent would only have been liable to a total of K30,000 .00, as its third-party liability limit. 2 . 13 The Appellant in its reply to defence filed on 16th May 2022, joined issue with the Respondents and averred that it did inform the 2 nd Respondent about the accident and availed the necessary documentation. Further that it was not a party to the insurance between the 1st and 2nd Respondents. 3.0 CONSENT JUDGMENT 3 . 1 On 28 th March 2022, the Appellant and 1s t Respondent entered into a consent Judgment in respect to the claim for negligence as follows: " (i) The 1st defendant herein, having admitted in paragraph 3 of its defence that its employee Nelson Stanley, whilst driving the 1st defendant's motor vehicle in the course of his employment, on or about 19th May 2021 at or around 07:35 hours, did negligently hit into the plaintiffs Mercedes Benz Truck -J9- registration No. ACZ 1790, Judgment on admission be entered by the plaintiff against the 1st defendant, on the issue of negligence only; (ii) Damages to be assessed by the Registrar and· , (iii) Costs be for the plain tiff to be taxed in default of agreement." 4.0 DECISION OF THE COURT BELOW 4. 1 After considering the pleadings, the evidence, the parties' submissions and the consent Judgment, the learned Judge opined that the following issues were not in contention: (i) That the accident between the Appellant's motor vehicle Mercedes Benz Truck and the 1st Respondent's vehicle was caused by the negligent driving of Nelson Stanley, an employee of the 1st Respondent, in the course of his employment. (ii) The Appellant's vehicle was damaged as a result of the accident. -JlO- (iii) At the material time, the 1s t Respondent's vehicle was insured by the 2 nd Respondent under third party insurance policy with limited liability of K30,000.00. 4 .2 The learned J udge formulated the following issu e for determination: "Whether or not the Appellant was entitled to indemnity for the costs of repairs, following its failure to provide three repair estimates and its unilateral decision to have the motor vehicle repaired in South Africa." 4.3 The learned Judge then h a d recourse to paragraph s 486 to 4 88 of Halsbury's Laws of England 1 , wh er e the learn ed authors stated with regard to making a claim as follows: "486. Form of claim. The assured is usually required by a stipulation in the policy to make a formal claim upon the insurers, containing full particulars of the loss and to deliver proofs supporting it. In practice the claim is made on a printed form supplied by the insurers and indicating the nature of the -Jll- particulars required. The giving of proper particulars and proofs is usually made a condition precedent to any right of recovery for the loss. 4.87 Particulars required. The particulars necessary vary according to the nature of the insurance. They must be furnished such details as are reasonably practicable. Whether the details given are sufficient or not is a question of degree depending partly upon the materials available ... 488. Proof of loss. Proofs of loss are necessary documentary proofs; the loss may be proved by any satisfactory evidence. In requiring proofs, the insurers must not act capriciously; they must be satisfied with such proofs as would satisfy reasonable men." 4.4 Th e learned J udge opined th at s ince it is standard practice, sh e did not consider th e 2 nd Resp ondent's request for three rep air estima tes to b e unreason able as th at was th e only proof that would h ave en abled th e Respon den ts assess the extent of the damage to th e Vehicle and agree on th e cost of rep airs . Th at in th e -J12- absence of the estimates, it was difficult to ascertain that all the repairs carried out by VendiTime were a direct consequence of the accident. 4. 5 The learned Judge as a consequence held that the Respondents were prejudiced by the Appellant's failure to provide the three repairs estimates and the unilateral decision to repair the Vehicle in South Africa. She found that the Appellant's claim for transportation costs to South Africa and the repair costs incurred in South Africa failed and accordingly dismissed them. 4.6 The learned Judge then went on, however, to make a finding that the 1s t Respondent admitted liability for the accident and the police report shows that the right side of the horse was extensively damaged and the windscreen shattered. That the 2 nd Respondent also intimated that it was liable only up to the sum of K30 ,000 .00, on the third-party insurance claim. On that account, the learned Judge held that the 2 nd Respondent was liable to pay the plaintiff the sum of K30,000.00 , being the limit of the full third-party insurance cover. -J13- 4.7 With regard to the claim for special damages, the learned Judge found that the 1st Respondent was liable and awarded the Appellant the sum of K2,075.00. In respect to damages for inconvenience, the learned Judge awarded damages subject to assessment by the Registrar. 4.8 The learned Judge ordered that the Judgment sums shall carry interest at the average short-term deposit rate per annum prevailing, from the date of writ to the date of Judgment and thereafter at the current lending rate as determined by the Bank of Zambia, from the date of the Judgment up to the date of full settlement. 5.0 THE APPEAL 5.1 Disenchanted with the Judgment, the Appellant appealed to this Court fronting two grounds as follows: (i) The learned High Court Judge in the court below erred in fact and law when she found that the Respondents were prejudiced by the failure to provide three repair estimates and the unilateral decision to repair the Vehicle in South Africa; -Jl4- (ii) The learned High Court Judge erred in law and fact when she held that the defendants were liable in the sum of K30,000.00, being the 2 nd Respondents liability as stated in the certificate of motor vehicle insurance. 6.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 The Appellant argued both grounds concurrently. It was submitted that the Appellant's claims were from the beginning against the 1st Respondent, as the party that caused the damage and loss to the Appellant. That the 1st Respondent by consent Judgment admitted liability for negligence, subject to assessment by the Registrar, but the Judge proceeded to determine th e quantum of damages without referring the matter to the Registrar. 6.2 According to the Appellant, there was evidence on record regarding the extent of damage to the Appellant's Vehicle as seen from the police report, the pictures, the quotation from Polite Auto Spares dated 26th May 2021 , which stated that they were unable to repair the Vehicle due to unavailability of spares. That there was also the testimony of PWl and the invoice from VendiTime. That -JlS- there was no contrary evidence from the Respondents to show that the evidence presented was false or that the damage was not the consequence of the accident. 6 .3 It was submitted that it was erroneous in the absence of the evidence to the contrary, to conclude that it was difficult to ascertain that all the repairs were not a direct consequence of the accident. The Appellant found the trial court's reasoning that three quotations would have provided proof of damage very odd. 6.4 It was further submitted that there was no law which says that a single quotation cannot be the basis on estimating the price. According to the Appellant, VendiTime provided a detailed price of works done and there was no basis to dispute the price. It was the Appellant's contention that the Appellant did provide satisfactory proofs of its loss, which the court should have reasonably accepted. 6.5 It was further submitted that the Appellant was losing business as a result of the damage; it therefore had to take steps to transport the Vehicle to South Africa for -J16- repairs to mitigate its losses and in that respect decided not to pursue its claim for damages for loss of use. 6.6 The Appellant further submitted that it was not under any obligation to provide the three quotations. That there is no law, convention or contractual obligation which required the wronged party to look for quotations to avail to the wrong doer to carry out the repairs. That the Appellant therefore did not prejudice the Respondents in any way. 6.7 On the award of K30,000.00 to the Appellant as repair costs, it was submitted that it had no relationship whatsoever with the damage and loss suffered by the Appellant. That the fact that the 2 nd Respondent was willing to pay its limits shows that it was accepted that the damage to the Vehicle was well beyond the K30,000.00 limit. 6.8 The Appellant prayed that the appeal be upheld on both grounds and the Appellant be awarded the actual cost of repair in the sum of ZAR 196,560.75. -Jl 7- 7.0 18 T RESPONDENT'S ARGUMENTS IN RESPONSE 7 .1 The 1st Respondent filed heads of argument on 29th June 2023. In response to the first ground, it was submitted that it was clear from the record that the learned Judge did not determine the quantum of damages for negligence, which remains awaiting an application by the Appellant for assessment before the Registrar. 7 .2 The 1st Respondent was in agreement with the finding by the learned Judge that the 1st Respondent was prejudiced by the Appellant's failure to provide three repairs estim ates and the unilateral decision to have the Vehicle repaired in South Africa. It was submitted that the police report did not indicate the exact particulars of the damage because the police are not skilled mechanics and could not have said with certainty what exact damages needed to be repair ed. 7 .3 It was submitted as confirmed by PWl, that it was standard procedure for both parties to inspect the damage to the Vehicle after the accident. That the Respondents did not h ave an opportunity to inspect the -J18- Vehicle, which was prejudicial to the Respondents. That the absence of mutual inspection left it open for the Appellant to repair things which were not damaged by the 1s t Respondent and that would amount to unjust enrichment. 7.4 It was further submitted that none of the three quotations requested were ever submitted. That Polite Auto Spares could not quote because they did not have spares. The 1st Respondent was in agreement with the learned Judge, when she opined that it was difficult to ascertain that all the repairs carried out by VendiTime were a direct consequence of the accident. That consequently, there was failure by the Appellant to prove on a balance of probability that all the repairs were a direct result of the accident. 7.5 On the issue of mitigating the loss, it was submitted that by unilaterally electing to have the Vehicle repaired in South Africa and not making reasonable attempts to repair the Vehicle locally, the Appellant failed to mitigate its loss, thereby prejudicing the 1st Respondent further. -Jl9- According to the 1st Respondent, the Appellant was not entitled to spend excessively beyond what is reasonable. 7.6 As regards the second ground, it was submitted that the learned Judge was on firm ground in awarding the Appellant the sum of K30,000.00, as the amount being the limit for the Respondents liability. Reliance was placed on the case of Nyirenda & Others v Kwalala 1 on the limit on the insurance contract in terms of liability. It was submitted that an insurers liability is subject to what is contained in the insurance contract. That in this case, the 2 n d Respondent's liability for a third-party claim was K30,000.00. That therefore the Appellants argument that the 2 n d Respondent's willingness to pay their K30 ,000.00 limit demonstrates that it accepted the amount of damages being well beyond the K30,000.00 limit is misconceived. 7. 7 In concluding, it was submitted that there was no basis for this Court to disturb the findings of fact made by the trial court as it was on firm ground. The 1st Respondent prayed that the appeal be dismissed with costs. -J20- 8.0 2N° RESPONDENT'S ARGUMENTS IN RESPONSE 8.1 The 2 nd Respondent did not file any heads of argument and did not participate in the appeal. 9.0 THE HEARING 9.1 At the hearing, Mr Tafeni, Counsel for the Appellant relied on the Appellant's heads of argument which he augmented with brief oral submissions. When we queried him on whether the invoice from VendiTime, appearing at page 145 of the record of appeal (the record) had been authenticated in accordance with The Authentication of Documents Act 1 , Counsel was at a loss. 9.2 Mr Tembo, Counsel for the 1st Respondent equally relied on the 1st Respondent's heads of argument. 10.0 ANALYSIS AND DECISION OF THE COURT 10.1 We have carefully considered the Judgment being impugned and the arguments by the parties. Before addressing the two grounds of appeal, it is incumbent upon us to state from our perusal of the record and the Judgment in particular, that the learned Judge did not assess or determine the quantum of damages for -J21- negligence. As provided in the consent Judgment, the assessment of damages was referred to the Registrar and they are yet to be assessed. 10.2 Reverting to the grounds of appeal, the first ground attacks the finding by the learned Judge that the Respondents were prejudiced by the Appellants failure to provide three repair estimates and its unilateral decision to repair the Vehicle in South Africa. It's not in dispute that amongst other documents the 2 n d Respondent requested for from the Appellant were the three repair quotations. The Appellant did not provide those. They instead, without notifying the Respondents elected to transport t h e Vehicle to South Africa for repairs. It was only after the repairs , that the Appellant sent an invoice from VendiTime in the sum of ZARl 96,560.75 and requested for reimbursement. 10.3 According to the 2 nd Respondent, it could not process the third party claim in the absence of the three quotations. The same argument was extended by the 1st Respondent in its defence and arguments. On its part the Appellant's argument was that it had provided -J22- sufficient documentation to support its claim. In addition , that it was not under any obligation to produce the quotations as there was no law or mandate to support the same. 10.4 It is not in dispute that the 1st Respondent had a third party insurance policy with the 2 nd Respondent, which had a limit of K30 ,000.00. The certificate of motor insurance appears at page 196 of the record. The certificate does not show that it was a condition precedent for the 1st Respondent, as the insured to collect three repair quotations. Neither does it provide that the Appellant as a third party was under an obligation to provide the same. 10.5 In insurance law, a condition precedent is a term that must be met before the insurer has a legal obligation to pay a claim. In casu, notification of the accident and claim was a condition precedent, whilst the requiring of three quotations was not. The consequences of failing to provide the quotations where it is a condition precedent is that it might affect the insurers ability to assess and settle the claim efficiently. It is however, unlikely that -J23- the insurer will automatically deny the claim solely for that reason if the other requirements of the policy are met. 10.6 The obtaining of multiple quotes in the insurance industry is however best and good practice as it helps to ensure that the insurance company and the insured get a reasonable estimate for the damage and avoid potentially inflated repair costs. It also provides leverage in negotiations with the insurance company and also in terms of transparency, shows that the affected party had taken steps to find the most appropriate repair garage and the best price. 10.7 By not producing the formal quotations, it weakens the affected party's position, as the insurance company may argue that the affected party has not done enough to establish a fair settlement. Failure also leads to potential disputes, which may lead to delays during the claim processing. 10.8 As earlier alluded to, the 1st Respondent had a third party insurance cover with the 2 nd Respondent as the -J24- insu rer. The learned authors of Black's Law Dictionary2 , defines third party insurance as follows: "An agreement to cover a loss resulting from the insured's liability to a third party, such as a loss incurred by a driver who injures a pedestrian. The insured's claim under the policy arises once the insured's liability to a third party has been asserted." 10. 9 The third party insurance typically refers to insurance that covers damages caused to others (third parties) in an accident or incident. Third party motor insurance is the m inimum insurance legal requirement in Zambia. It covers damage to other people's property. If one is at fault in an accident, the insurer pays for repairs to the third party's vehicle or property. In that respect, it provides financial p r otection against claims made by others for damages. 10.10 As earlier alluded to, th e third-party insurance cover in this matter had a limit of K30,000 .00. An insurance coverage limit determines the maximum amount an insurance company will pay for the covered claim. The ref ore, a third-party insurance limit refers to the -J25- maximum amount an insurer will pay for claims related to damages caused by the policyholder to a third party. 10. 11 If a claim is filed and the said claim exceeds the coverage limit, the insured may be personally liable to the third party for the remaining claim (excess amounts). 10.12 The finding by the learned Judge that in the absence of the three estimates, it was difficult to ascertain that all the repairs carried out by VendiTime were a direct consequence of the accident, led her to conclude that as a result the Respondents were prejudiced by the Appellant's failure. As a consequence, she opined that the claim for transportation costs to South Africa and the repair costs failed. 10.13 Although volte face (in abrupt and complete reversal) in respect to the 2 nd Respondent, the learned Judge awarded the sum of K30,000.00, being the third-party insurance limit, our view is that there was sufficient evidence of extensive damage to the Vehicle provided by the Appellant as a third party, especially in view of the fact that the limit was far from the claim being made. • -J26- 10.14 After the award of the K30,000.00, the problem remained with the excess claim, which was to be borne by the 1st Respondent. It is evident that the Appellant did not provide any quotation, nor did it make the Vehicle available for assessment. The Appellant instead unilaterally without notifying the Respondents, took the Vehicle to VendiTime in South Africa for repairs. The Appellant only provided the Respondents with an invoice after the repairs were effected. Definitely the Appellant had not been transparent in his dealings. The Appellant's conduct was not only dilatory but also lacked candour and therefore made it difficult for the Respondents to believe that the repairs as invoiced were all as a consequence of the accident. 10.15 In its claim for repair costs, the Appellant placed heavy reliance on the invoice from VendiTime. As earlier alluded to, the Appellant did not provide proof before the court below and this Court that the invoice from VendiTime, South Africa was authenticated, 1n accordance with The Authentication of Documents Act 1 (the Act). • -J27- 10.16 Section 3 of the Act provides as follows: "Any document executed outside Zambia shall be deemed to be sufficiently authenticated for the purpose of use in Zambia if. ... (d) In the case of a document executed in any place outside Her Britannic Majesty's Dominions (hereinafter referred to as a ''foreign place") it be duly authenticated by the signature and seal of the office. (i) of a British Consul-General, Consul or Vice Consul in such foreign place; or (ii) of any Secretary of State, under-Secretary of State, Governor, Colonial Secretary or of any other person in such foreign place who shall be shown by the certificate of a Consul or Vice Consul of such foreign place in Zambia to be duly authorized under the law of such foreign place to authenticate such document." 10. 17 Section 2 of the Act defines "document" as any deed, contract, power of attorney, affidavit or other writing, but does not include an affidavit sworn before a Commissioner of the High Court. The same Section -J28- defines authentication as the verification of any signature or signatures on a document. 10 .18 The Act aims to ensure the validity and acceptance of docum ents executed outside Zambia. Such documents must be authen ticated before they can be used in Zambia. Documents not authenticated as per th e Act, may be deemed invalid and not usable in Zambia. If not properly authenticated, such documents are deemed invalid and cannot be r elied on at all. 10. 19 In the case of Lum us Agricultural Services Ltd & Another v Gwembe Valley Development Limited2 , the Supreme Court h eld inter alia as follows: "If a document executed outside Zambia is authenticated as provided by the Authentication of Documents Act, then it shall be deemed or presumed to be valid for use in this country and if it is not authenticated, the converse is true that it is deemed not valid and cannot be used in this Country." 10.20 In the case of Muwindwa Mutemwa Mufundi (Married Woman) v Meanwood General Insurance Limited3 , we • -J29- excluded reliance on the accident report, quotations for repairs and pictures obtained in South Africa, as they were not authenticated in accordance with the Act. This is what we stated at page J34: "It is our considered view that the said police report form and quotations for repair which are indeed writings as defined by the Authentication of Documents Act, required authentication. Since they were not authenticated in accordance with the Act, the Appellant could not rely on them. We therefore uphold the lower court's finding that the said documents were not valid for use in Zambia." 10.21 In the case before us, the invoice by VendiTime based on the aforestated authorities, required authentication. Since there was no proof that the invoice was authenticated, it is not valid for use in Zambia. 10.22 It is however not in dispute that indeed there was damage to the Appellant's Vehicle, which was caused by the 1st Respondent's negligence as admitted. As rightly found by the learned trial Judge, the accident was caused by the 1st Respondent driver's negligent driving, • -J30- which resulted in the Appellant's Vehicle being damaged. 10.23 Indeed as held in the case of JZ Car Hire Limited v Malvin Chela & Another4, it is for the party claiming damages to prove the damages. The invoice from VendiTime having been discounted as being invalid for use, the Appellant has failed to assist the court in arriving at a decision. We are however of the view that, that aside, this is a proper case for us to award nominal damages. 10.24 The learned authors of Black's Law Dictionary2 at page 418 had this to say on nominal damages: "Nominal damages are damages awarded for the infraction of a legal right, where the extent of the loss is not shown or where the right is one not dependant upon loss or damages .... Nominal damages are awarded if the plaintiff establishes a breach of contract or a tort of a kind that is actionable but fails to establish a loss caused by the wrong... The practical significance of a Judgment for nominal damages is that the plaintiff thereby establishes a legal right." 'Iii> -J31- 10.25 Notwithstanding the Appellant's failure to prove its claim, it is evident that there was damage caused to the Vehicle and we are inclined to award nominal damages of K20,000.00, as opposed to compensatory damages. The award will attract interest as ordered with respect to the K30,000.00 awarded by the court below against the 2nd Respondent. The nominal damages shall be paid by the 1st Respondent. 10.26 As regards costs, we are of the view that this is an appropriate case for us to order that each party bears J. CHASHI COURT OF APPEAL JUDGE C. K. MAK8NGU COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE