Aqua- Rent a Dispenser Limited T/A Aqua Pure Mineral Water v Zambia Breweries Plc and Anor (APPEAL NO. 184/2019) [2021] ZMCA 269 (26 July 2021)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) APPEAL NO. 184/2019 BETWEEN: "l:li( ~ \)l<I ( • ,.,p., F °/¼.;--- ' i , i AQUA-RENT A DISPENSER LI T / A AQUA PURE MINERAL WA 1l$~ 2 6 J L 2021 ' A~PELLANT - I y I ZAMBIA BREWERIES PLC NDOLA CITY COUNCIL 1 ST RESPONDENT 2ND RESPONDENT Coram: Kondolo, Makung u and Majula, JJA On the 19th day of Feb ruary, 2021 a nd th 26th day of July, 2021 For the Appellant For the 1s t Respondent For the 2 nd Respondent : Mrs . D . Findley - Mess rs D. Findley & Associates : Mrs . I. M. Kunda, SC - : M s . A. D. Grey Kunda - essrs George Kunda & Co. essrs A . D. Grey & Partners JUDGMENT MAKUNGU, JA delive red the Judgment of the coJ . Cases referred to: 1. Sithole v. The State L otteries Board (1975) ZR 06 2 . Justin Chansa v. Lus a ka City Council (200 7) ,R 2 56 3 . Blyth v. Birmingham Waterworks (1 856) 11 E . Ch. 781. 4. Chansa v. The People (19 75) ZR re-print Page 178 5. Continental Restau rant ancl Casin o Limited v. Chulu (2000) Z. R. 12 8 6. Sata v. Zambia Bottlers Limited (2003) Z. R. 1 7. Wilson Masauso Zulu u. Avondaale Hous ing roject (1982) ZR 172 Legislation referred to: 1. The Public Health A ct Chapter 295 of the La s of Zambia. 2 . Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations; Statutory fnstrum nt No. 2 8 of 1997. 1.0 INTRODUCTION 1. 1 This is an appeal a gainst the Judgme t of Justice Mugeni S. Mulenga of the High Court date d 29 th J ly, 2019 dismissing the appellant's case and awa r din g nomi al damages to the 1st respondent based on its counter claim . 2.0 BACKGROUND/UNDISPUTED FACT 2.1 The 1st responden t s ou gh t permissio from the 2 n d respondent to re-open and widen its entrance on resident Avenue -North, Ndola and to cut d own a tree wh ich as 3.4 metres away from the storm drain. It then engaged a ompany called WBHO to carry out the works . The 2 n d respon ent authorised the works on 26 th March , 201 3 and works were commenced soon thereafter. WBHO broke the storm rain and the old bridge, diverted the storm drain water a nd onstructed a new bridge. 2.2 The appellant, an entity tha t pack ges and sells processed water drawn from a borehole on it · premises , experienced a sewer overflow on its p remises som time in April, 2013 which was rectified by Ka fubu Water a n d ewerage Company on 16th April, 2013. There was also a man ole and a toilet about 2.5 and 6 metres respectively, away fr o the borehole. -J2 - .. 2.3 Subsequently, the app ellant complaints from its customers that its wa t er was foul sm Hing and contaminated. This resulted in the suspension of o erations. The appellant had water samples taken on 16 th M y, 2013 and tested by Kafubu Water and Sewer age Compan . The test revealed that there was neither Escherichia Coli ('E- oli ') nor total coliform in the borehole water. It was h owever disc vered that the packaged water contained 22 / 1 OOmls of total c liform, which was above the Zambia Bureau of Standards (ZBS limit for drinking water. 2.4 Water from the borehole at the neigh ouring premises Pelican House, had both E- coli a nd total c liform too-numerous-to- count (TNTC). The s a m p les taken on 17th May, 2013 from the appellant's premises yielded simil results but the total coliform in the packaged water increJ ed to 32/ l00mls. 2.5 Tests conducted by the Ministry of He th on 16th May, 2013 on 500mls each of processed a nd ra water from both the appellant and Pelican House reve ed no E-coli and total coliform in processed water but 4 a d 2 respectively of total coliform in each 500mls of raw water. Further tests done by the ZBS on 20 t h May, 201 3 and reported n 27 th May, 2013 revealed no E-coli while total coliform was TN C. -J3 - • 2.6 Subsequently, on 29 th May, 2 013, the . ppellant made a formal ! complaint to the 2 nd respond ent complr ning about the alleged contamination of its borehole water. Oh 6 th June, 2013 the 2 nd respondent issued an enforcement l otice ordering the 1st respondent to suspend works pending investigations into the I alleged contamination. 2. 7 In the meantime, foll owing a te st on th water conducted by the Ministry of Health on 4 th June, 2 013 that found the borehole water fit for consumption , the ap pellant resumed production of I bottled water within the month of Junci , 2013. However, neither the 1st respondent nor the 2 nd responl ent were informed of the resumption of the operations. 2.8 Following the issuance of the enforcement notice, the 2 nd respondent proceeded to conduct the [nvestigations resulting in a report in June , 2013 indicating that investigations were inconclusive as regards the ap, ellant's allegations and recommending that a hydraulic pumping test be done at the expense of both parties for a conclj sive determination of the allegations. This was not done b j cause the appellant was I averse to the idea. / -J4- 2.9 The 2 n d responde n t lifted the enfol ement notice on 19th September, 2013 and th e 1 ~t re spond ent continued with its operations. 2 . 10 The appellant alleged that the uprooting of the tree as opposed to cutting it down h ad caused the soil to be loosened thereby I allowing the contamin ated water to L ave! and consequently contaminate its bor ehole water. 1 hat the use of heavy machinery, in particular, a j a ck h ammer had caused cracks on the storm drain r esu lting in con tamina1tion and pollution of the water supply. 2.11 The appellant subsequently commenced an action by way of writ of summons a gainst th e re sponde l ts seeking the following reliefs: 1) Damages for loss of business)· 2) Damages for los s of business ( portunity and loss of reputation occasioned to the appellant as a result of the 1st and 2 nd respondents' negligence a ~ / or nuisance; 3) Damages for negligence and/ or nuibance)· 4) Interest on all amou nts fou nd due)· 5) Further or other relief as the court may deem fit; and 6) Costs. -JS - ,,. 2 . 12 The 1st respondent's d efence was that here was no negligence and no evidence of th e alleged d amage / _ It counterclaimed for the costs and expenses incurred due to the delayed construction works; loss of b usin ess ; cost for hire of storage premises; damages fo r inconvenience d legal costs. 2.13 The 2 n d responden t equally objected to the claims of negligence contending that it h ad p r operly grant d permission to the 1st respondent to carry out the surfa ce e cavation works. That it was impossible for vibrations on acc, unt of the use of heavy machinery to affect an undergroun d facility such as the borehole with a c oncrete thickness of 150mm to 200mm at the appellant's premises situated 60 etres away from the construction site. 2.14 The 2 nd responden t insisted that it dequately inspected the works and that there was an Envir on ental Impact Assessment Report for the entire project ap roved by the Zambia Environmental Management Agen cy. 2.15 The 2 nd respondent contended that i suance of an enforcement notice is standard p rocedure und er s ch circumstances. 3.0 EVIDENCE ON RECORD -J6- ,. 3.1 At the trial, the appellant called th ee witnesses. The 1s t respondent called five and the 2 n d res ondent called one. We shall only summarise the evidence rele ant to the appeal. 3.2 On behalf of the a pp ellant, PW3, Os orne Kasumba, a civil engineer conducted in vestigations to as ertain the causes of the contamination of the appellant's boreh le water and rendered a Hydro-geological Engineer's Repor1/. His findings and conclusions were tha t the cau se of th contamination was the water from the storm dra in ,;,;,rhich had · nfiltrated the water table through the loosen ed soil as a re sult o the uprooted tree. That the contaminated water reached the 1 osened soil through the storm drain that was b roken during onstruction works . This caused the contamination of the wat r table in the catchment area of the borehole b eing a radiu of 276m although the borehole was a ctually 60 m etres from the construction site. 3.3 PW3 was of the opin ion that the exp t report produced by the 1s t respondent showed that the m eas res taken to prevent the flow of water from the storm drain to he position where the tree had been uprooted were in.a d and hence the contamination of the water tab le t rough the loosened soil where the roots of the tree h a d been. -J7- ,. 3.4 PW3 further opined that the vibrations c used by the machinery accelerated the rate of infiltration. He stated that the overflowing manhole near the borehol was not the source of the contamination as there was no faecal coliform in the unprocessed water and that, in a ny c se, the overflow was on the surface. 3.5 On behalf of the 1st respondent, DWI, wiya Songolo, a Mining Engineer with consultancy exper ence 1n investigating pollution, carried out an investigatio to determine whether vibrations caused b y the construction orks could have created a route through which contaminants f om the drainage reached the appellant's borehole . His ass ssment of the ground vibrations in relation to the machine used and a review of the reports made by the 2 nd respondent , nd PW3, coupled with a site visit, led him to conclude that th vibrations occasioned by the hydraulic breaker were well with n the threshold, even as regards fragile buildings. 3.6 He explained that the ground is a g od absorber of vibrations and that the vibrations that reache · the storm drain were of minimum strength as it was firm ly b ried. -J8 - 3.7 As regards the borehole, h e concluded T at its casing could not have been affected by the vibra tions b ing below the damage threshold. Therefore, h e concluded tha the hydraulic breaker used to demolish the bridge a nd th storm drain for the diversion of storm water , could not ha e caused cracks in the drain leading to contamina tion of the ater in the borehole. 3.8 With regard to the evidence of PW3, So golo was of the opinion that water from the storm drain could / ot have travelled to the borehole as it was adequately b locked y the concrete and sand bags. He further stated tha t the upr oted tree was not in the drainage neither wa s there any wate where it stood . In any case, its removal was n eces sary t o pa e way for the expansion project. 3. 9 With respect to the soil formation, D 1 opined that the surface is composed of clay soil which has ve fine and close particles making it difficult fo r water to perco ate through the soil. The lower part is made of schist which is an impermeable rock which could neither allow for cont mination of the borehole water after the upro oting of the tree or the permeation of roots through it. -J9 - 3. I0 DWI further opined that contamina~ion of the radius of influence of the borehole, b eing less tJ an 30 metres from the manhole through seepage fallowing an o erflow, cannot be ruled out. Further that the conta minants an colour of the processed and bottled water indicated that th re could have been a problem with the appellant's p rocessinf system. 3. I I DWI concluded that the empirical evJdence showed that the civil works should b e ruled out as the cause of contamination as the vibrations were insignificant to cause filtration of contaminants to the boreh ole . He stal d that the source of the contamination could have only been as ertained if the hydraulic pumping test was carried out. 3. I2 DW2 , the Assistant Site Manager te . tified that construction works only began about two weeks af er the tree had been cut and that the 2 n d respondent never is ued any instructions to WBHO to repair cracks on the storm rain. 3. I3 DW4 , a Chemical Engineer Technologi t with Kafubu Water and Sewerage Company testified that he ·nspected the appellant's premises and discovered unsanitary conditions in that solid sewer had spilled over a nd re-us a ble ottles for packaging water were lying in the s ewage . He a ls found other unhygienic -Jl O- factors such as the m anual ca pping o bottled water and the I borehole being situated 6m away from a leaking toilet and 2.5m away from a manhole. 3.14 DW6, a Civil Engineer and Deputy irector of Engineering Services at the Nd ola City Council at the relevant time , confirmed that an en forc ement notice as issued against the 1st respondent following a complaint by t e appellant. He stated that his departmen t carried out in ves igations on the site and at the appellant 's premis es but did not rive at a conclusion on the source of the contamina tion as th re was need for further investigations. However , the hydrauli pumping test that was recommended could n ot be done because the appellant indicated that it would n ot fun d th e co t of the test. It was then that, a decision was taken to lift th e s spension of works as the 1st respondent was in cu r ring costs du to work stoppage. 4.0 DECISION OF THE COURT BELOW 4 . 1 The learned Judge considered the evidence before her and found that at the time the enforce m nt notice was issued, the appellant had resum ed p roduction f water on the basis that the Ministry of Health h ad on 4 th June, 2013 certified its -J l 1- borehole water fi t for consumption . Ho eve r , the appellant did not inform the respondents of this. Sh e found that the investigations carried out by th e 2 nd respondent were inconclusive and that there was need to conduct a hydraulic pumping test to p rove or disprove the · legations made by the appellant. However, this could not be done because the appellant was n ot willing to s hare ti e cost of the further investigation with the 1 sL responden t. 4.2 Guided by the case of Sithole v. The tate Lotteries Board,(1 1 the court below rejected the expert ev · dence of PW3 as it was not supported by satisfactory evidenc or facts as regards the alleged cracks and uprooted t ree. In p rticular, at page J .60 of its judgment, the court b elow rightly nl j ted that: " what is cardina l is tha t t e expert opinion must be based on fac ts to be he lpfi l to the court. Expert opinions that are not support d by facts have to be discarded." PW3 attributed the contamination t o he uprooting of the tree through which the storm drain watJ infiltrated the aquifer. PW3 had furth er testified that the tree as uprooted on a Friday -J12- and that on Monday, the a ppellant's bor hole was contaminated which was contrary to the evidence th t the tree was uprooted in March, 2013 while the works co menced the following month. 4. 3 The court below found that PW 3 's evi ence that the borehole drew its water from the aquifer did not sufficiently prove that it was the 1s t respondent 's works or wa er from the storm drain that polluted the borehole as there w s need for a conclusive test, being the h ydraulic pumping test as recommended by the 2 nd respondent. Therefore, the likeli ood of other sources of contamination, such as sewer overflo which was closer to the borehole than the construction site, h d not been eliminated in light of PW3 's evidence that longer water moves underground, the more it is purifie . She found that it was more probable that contaminated wat r from the sewer overflow and manhole, coupled with unsanit state of the appellant's premises, could have easily made it way to the borehole than contaminants 60 m etres away. 4.4 The Judge also noted that in spite of PWl 's evidence on the water purification system of the ap ellant, contaminants were found in the bottled water on s veral occasions, in large -Jl3 - .· quantities compared to the one result involving the borehole water which had a small qu a ntity; in particular, test results from 16th May to 23 rd May, 2 013 and etween 28 th May, 2013 and 3,rl June, 2013 showed the unsi tisfactory state of the bottled water. At page J64 of her judg ent, the learned Judge noted that: "This is a clear indication hat the purification system was either not effi ctive or there was contamination introduced afte the process. And this was yet another possible sour of contamination as revealed by the tests carried ou by Kafubu Water and Sewerage Company Limited o 16th and 17th May, 2013 which fou nd conta min nts in the packaged water and yet t here were none in the raw water from the borehole. The exp lanation dvanced by PWl that the borehole had been left run ing for 24 hours so as to clear out the contam inan does not assist the Plaintiff but confirms that t e purification system was compromised since it is intended to deal with contaminants ." -J14- 4.5 The learned Judge then considered e claim of negligence against the 2 nd respo ndent that it h · d failed to uphold its statutory duty by not ensuring that th 1st respondent carried out works as approved a nd in an el vironmentally friendly manner. She considered the p rovision of sections 65 and 78 of the Public Health Act Chapter 29 5 of the Laws of Zambia and found that the particula r works relat ng to the drainage fell under the jurisdiction of th e 2 n d re pondent who properly granted authorisation and was repr sented during regular inspections. She found that particular . of failing to adequately scrutinise and supervise the works we e not supported by any evidence as well as that on failure to s eguard structural and chemical damage to the app ellant's pr perty. 4.6 On the issue of the lifting of th e enfor ement notice, the court below found that the appellant did not prove that the 1st respondent's works occasioned any er cks in the storm drain. The court found that on the date of iss I ance of the enforcement notice, 6 th June , 201 3, there was no evidence that the appellant's borehole was contaminate 4. 7 All the claims against the 1 ~a res ponde t, were dismissed as the court found that , the provisions of the f nvironmental Protection -J1s - I and Pollution Control (Environmentt l Impact Assessment) Regulations , Statu tory Instrument No. 28 of 1997, showed that the 1st responden t's works involving t e widening of the gate and attendant works on the storm dr ·n and tree did not fall under the First Sch edule . The court further found that the appellant failed to prove that the bre ·ng of the storm drain walls resulted in cracks in the storl drain through which contaminated water infiltrated the a uifer and polluted the appellant's borehole which was 60 etres away from the construction site as there was n o evi ence of cracks, in any case. 4 .8 The learned Judge found the alleg tion of contamination through the loosened soil following t e uprooting of the tree, unproven in view of the fact that the t ee was 3 .4 metres away from the storm drain and was u proot d in March, 2013 after which the area was buried and comp cted. The works on the bridge and storm d rain only comme ced in mid-April 2013. Therefore , there were other possible s urces of contamination. 4. 9 As regards negligence, the court below found that while at some point, there was some level of contam nation of the appellant's borehole water, on th e facts of the ca , e , the appellant had not -J16 - I . . proved to the required standard that his contamination was occasioned by the 1st resp ondent. She ook the view that there was neither proof of d amage nor o causation by the 1st respondent's works as regards the borehole water. Thus the inference of negligence u nd er the maxi res ipsa loquitur, could not stand in view of the appella nt's fai ure to show that it was more probable that the contaminatio was caused by the 1s t respondent's act or omission. 4.10 On the 1st respondent 's counterclaim , he learned Judge found that there was no proof of special dam ges but that the facts of the case showed that th e 1st res pondent had suffered some damage due to the h alting of th e consJ uction process for some months. She found the appellant liab e in damages in view of its refusal to conduct the h ydraulic pu ping test to conclusively resolve the matter. Consequently, she awarded the 1st respondent nominal damages in the s m of K30, 000.00. 5.0 GROUNDS OF APPEAL 5.1 The appellant has advanced seven gro nds of appeal framed as follows: -Jl 7- 1. The court be low erred in la w a dfact in holding that the 1 st respondent did n ot breac the provisions of the Environmenta l Protection Control (Environmental Impact Assess ent) Regulation, 1997 Statutory Instrument No. 28 of 1997, in that; (a) The 1 st respondent did not require Zambia Environmental Ma nageme t Agency approval to carry out the works un er Phase two of the project; (b) The 1st Respondent did not employ adequate preventive measures and y allowing the storm drain water from the brok n storm drain to come into contact with loos ned soil where the uprooted tree was, t h e Re . :pondent breached the provisions of Sections 4, 5, 45 and 127 of the Environmental Managem nt Act Number 12 of 2011; (c) In faili ng to address t e issue that the 1st Respondent did not adhere to the recommendations mbia Environmental Manage ment Agency in t e project Brief. -J18- 2. The court e rred in law a n d fa 1 tin holding that the 2 nd respondent did not b reach its statutory duty in light of the evidence; the f act hat no investigations were carried out to d eter ine the source of contamination of Pelican Hous borehole and in light of the provisions of Sections 31 and 32 of the Town and Country Planning Act, Ch pter 283 of the Laws of Zambia and Sections 65 and 78 of the Public Health Act, Chapter 295 of thl Laws of Zambia and Regulation 12 of the Pub lic k-ealth (Drainage and Latrine) Regulations of the Pu lie Health Act. 3. The court below erred in law a dfact in holding that the appellant had not proved hat the 1st respondent was negligent in light of the e dence on record which ought to have been conside red j nd taken into account particularly: (a) The testimonies of DW2, DW3 and DW6 which confirmed the necessity if preventive measures to be emp loyed by the 1st espondent which were not employed; -J19- (b) By taking into account / and relying on the testimony of only DWl ank DW6, excluding the testimony of other witness s and the appellant's witnesses. 4. The court erred in law and fact in reaching its conclusion that there were ot r possible sources of contamination in that: (a) This conclu sion is at vari nee with the evidence on record particular ly th testimonies of PWl, DW4, DWS and DW6 and by further failing to state why the court p refi rred the testimony of DW4 and DW6 over the testimony of PWl in respect of its conclusion at there was manual capping of bottled wat : r at the appellants premises; (b) This conclusion oug ht t , have been carefully analysed and conside j d in light of its attributing effect on iabi lity to the 2 nd respondent. 5. That the court below erred in law and fact in holding that the appellant ought t o h ve specifically proved -J20- the allegation t hat the breaki1 g of the storm drain resulted in cracks of the stor drain when in fact large sections of the storm dr in were broken and evident that the s torm d rain w ter escaped from the storm drain i nto the surroun ing soil and thereby possibly contaminated the envi j onment; 6. The court below erred in la w an fact in holding that the appellant fa iled to adduce vidence: that the water from the stlrm drain reached the (i) position of the uprooted t ee in consideration of the evidence on record; (ii) that the contami nation co ld be attributed to the infiltration of the storm drain water into the loosened soil on the site o the uprooted tree; and (iii) in faili ng to consider he above factors of uprooting of the tree, b eaking of the storm drain, subsequent s eepa e of the storm drain water and its conta ct w th loosened soil as a ground of contaminatio of the appellant's borehole and/or its effect on the environment as per evidence on record. -J21 - 7. That the cou rt be low e rred j in law and fact in condemning the appellant b1 awarding nominal damages in the sum of K 30,0 0.00 by reason of the appellant having c omme nced he court action and refusing to carry out the hydr ulic pumping test in light of the fa ct that the ap e llant was not duty bound to fund t he invest igatio s to be carried out by the 2 nd respo ndent and in li ht of the provisions section 110 of the Environment l Management Act No. 12 of 2011, which the court bel wfailed to pronounce itself on in any event. 6.0 APPELLANT'S ARGUM ENTS 6.1 The appellant argued grounds one aind four together: With respect to whether the 1 sr re spon nt had breached the prov1s1ons of Statutory Instrument No. 28 of 1997, the argument was that DW2, DW3, DW4 and DWS testified that ZEMA approval was obtained for Phas One of the project but not for phase two as there was ne ither n Environmental Impact Assessment (EIA) nor a Project Bri f (PB) contrary to the provisions of Regulation 3(2)(b) a nd 34 l)(g) of the S. I. No. 28 of 1997 and section l l 7(b) of the Act. -J22 - I i I i 6.2 The contention was that while the PB m ~ es reference to phase I I i one of the project, there is no men tion o~ phase two works to be carried out . Pha s e two being p art ofj the same project, an I alteration or extension of the proj ect repuired a PB in terms of I Regulation 3(2)(b) of S. I. No. 28 of 1917. The appellant took issue with the holding of the cou rt beldw that the approval for i I phase two of the proj ect having been obtained from the 2 nd respondent, the 1st respondent had the ±-equisite authority. The appellant argued that Regulations 3 1 1d 32 do not specify that i the local authority should authorise such works but merely I ! state that the d eveloper shall notify thr authorising agency of any changes to the developn1en t and [the authorising agency shall inform the Council accordingly. It was contended that this was never done. 6.3 The appellant furth er argu ed that the etter dated 26 t h March , 2013 shows that th e 1st respondent was not authorised to uproot the tree , b rea k the s torm dra~n and divert the drain water. That the 2 nd respondent did notJ do anything even when I I ! it was brought to its attention that sucl works were carried out. 6.4 On breach of the provisions of section~ 4 , 5, 45 and 127 of the Act, it was submitted th at the court belolj w failed to address itself -J23- on the evidence on record in a rnv1ng at the conclusion that there was no proof of cracks in the storm drain. That the pictorial evidence is proof that the dra·n had cracks. 6.5 The preventive measures taken by the 1st respondent as stated by DW2 and DW3, is evidence that th storm drain was broken and that the measures were thus i adequate. Consequently, there was a possibility of water e caping and coming into contact with the loose soil wh ere the ree was uprooted. 6.6 Therefore, it was contended that the storm water escaped from the storm drain as pictures s how t at there was water in the storm drain while it was b eing demo ished. 6. 7 It was submitted that the conclusi n by the court below that there were other possible sources of contamination was not supported by the evidence on re ord. In particular, it was argued that DW3 never testified o any issue relating to the contamination of the borehole wat r at Pelican House or other possible sources, neith er did W 4 investigate any such contamination. 6.8 As regards manual capping of bo tles at the appellant's plant, the court preferred the evidenc of DW4 over that of PWl without giving any reasons, whic in t erms of the case of Justin -J24- Chansa v. Lusaka City Counc il !2 l is , misdirection. Further, the report of DW6 1nakes no rnention of he unsanitary premises of the appellant as a possible s ource o contamination and that this was another misdirection on th e 6.9 With respect to ground two , ment was as follows: In terms of sections 65 and 78 blic Health Act, the 2nd respondent, being a local authority, as a duty to maintain or prevent nuisance or conditions that e injurious to the public. Therefore , the fact that it was no t in ispute that the boreholes for the appellant and Pelican House ere contaminated, is proof that the 2 nd respondent breached its statutory duty. Despite being aware of the conta mination of he water supply at the two properties and the d anger that th pollution would cause to public health, the 2 nd respondent to k no practical measures to prevent the pollution or any step to remedy such pollution. Therefore , the failu re of the 2 nd espondent to carry out its statutory duties qualifies the a pp llant's claim for negligence against the 2 nd respo n den t. 6.10 It was further contended that in te-ms of Regulations 11 and 12 of the Public Health (D rainage an Latrine) Regulations Chapter 295 of the Laws of Zambia, a loc 1 authority is responsible for -J25- the coloured water test associated wit a drain. Therefore, it was unjustified to demand that the app Hant partake in a costly test of drains located on the 1st re spon ent's property. Clearly, the 2 nd respondent fail ed to adequate! examine, scrutinise or inspect the construction works . 6 . 11 With respect to ground three, the ontention was that the evidence of DW2 , DW3 and DW6 a , to the need to employ preventive measures with respect to he uprooting of the tree, preventing of cracks in th e storm drai through the use of heavy duty machinery and preventing the escape of water from the storm drain to the loosened soil, oug t to have been taken into account in arriving at a conclusion s to whether or not the 1st respondent was n egligent and w ether the appellant had succeeded in its claim s for brea h of statutory duty and nuisance. 6.12 Therefore, it was submitted that the evidence on record does not support the findings of the court b low and that the judgment should be reversed . 6.13 With regard to grounds five a nd the appellant contended that contaminated water from th storm drain did reach the -J26- ·' loosened soil where the tree was uproo ed from contrary to the findings of the court below. 6.14 The 1st respondent 's failure to take easonable measures to prevent the possible damage to the environment and consequential contamination of th appellant's borehole, amounts to negligence. Reliance w asp aced on the case of Blyth v. Birmingham Wate rworks.( 3 l 6.15 In support of the seventh ground of ppeal, it was submitted that it was wrong to condemn th appellant for nominal damages because , in terms of Regula ions 10, 11 and 12 of the Public Health (Drainage and Latrine) Regulations Chapter 295 of the Laws of Zambia, the drain w s the responsibility of the 1st respondent and any test as soc ated with it was the 2 nd respondent's responsibility . 6.16 It was further contended that the a pellant was duty bound to report the alleged contamination o its borehole water to the relevant authorities . 6.17 It was further contended that it is i relevant whether or not the appellant had resumed production of bottled water during the enforcement notice period as the ontamination had not been -J27- •• dealt with and the 1st respondent 's wor s were still threatening to cause further con tamina tion . 7.0 1 sT RESPONDENT'S DISQUALIFICAT ON TO BE HEARD 7 . 1 The first respondent's advocates h a d filed heads of argument out of time without leave of th e court hich they later withdrew. Consequently, they filed a m otion efore Hon. Justice B. M. Majula, JA for exten sion of ti111e wit in which to file heads of argument. On 30 th November , 202 Judge Majula dismissed the application as s he was not s tisfied with the reasons advanced for the d elay. 7 .2 Consequently , the 1st respon d ent fi ed a motion before us to reverse or vary the ruling of the sin gl Judge . Upon hearing the motion on 26 th March , 2 021, we d is issed it for similar reasons as the single Judge and forbade the st respondent from arguing the appeal viva voce. NON APPEARANCE OF THE 2N° ESPONDENT'S ADVOCATES 7.3 The 2 n d responden t's a d vocate s n e · her filed heads of argument nor appeared b efore u s . -J28- 8.0 OUR DECISION 8.1 We have consider ed the record of a ppe and heads of argument filed into court by the appellant. 8.2 The grievances of the appellant in th e st , 3 rd and 4 th grounds of appeal as we s ee th em, are that, th e 1st respondent breached the provisions of the Environn1ental M nagement Act, 2011 and its Regulations by firstly , not seeking pproval for phase two of its project; s econdly by not employi g adequate measures to prevent pollution of water; thirdl , by not adhering to recommendations made by ZEMA in he PB. Fourthly that, the 1st respondent was n egligent th ereb causing pollution of the appellant's boreh ole water . Fifthly t at the trial court erred to find that there were other p ossible s urces of contamination. 8.3 In terms of the Second Schedule to . I. No . 28 of 1997, projects involving breweries and plan ts require an Environment al Impact Assess men (EIA) before works can commence. The EIA Review Profile and the Comments on the draft Environmental Proj ect Brief ( PB) at pages 363 to 369 of the record of appeal show that th / project the 1st respondent intended to undertake was for the x pansion of the brew house and cellars at Northern Breweri s Plc . The said EPB was -J29- .. subsequently a p proved by ZEMA a per letter dated 2 nd February, 201 2 . 8.4 As regards the works relating t o the re-opening and widening of the entrance on Pr esid en t Avenu e and he associated works, we are satisfied that these did not fa ll wit in the purview of S. I . No. 28 of 1997. Consequ ently , n o a p prova was required from ZEMA before the 1st respon den t could car out the said works. It is for this reason th at the 1st res po dent proceeded to seek approval from the 2 n d re s pon d ent to arry out the other works for which approval was granted by etter dated 18th October, 2012. 8.5 Therefore , in terms of th e EMA, it annot be said that the 1st respondent's proj ect wa s in two p ha es as the works relating to the reopening of the ga te on Pre sid nt Avenue have nothing to do with the said Act. Consequent! , the first aspect of ground one fails. 8.6 With respect to the second a nd bird aspects, the issue is whether while ca r rying out works 0 1 the storm drain, water was allowed to come into contact wit loosened soil. There is no doubt that the storm d rain was br ken in order to build another bridge and that m easures were a k en to prevent water from -J30- .. escaping as evidenced by the photogr phs of progressions of works. The appellan t contends that these works and the measures undertaken were inadequat as water escaped into the loosened soil and cau sed pollution the aquifer. We are not persuaded that this was the case as D 2 testified that the tree was uprooted two weeks before works ommenced and that the soil in the area where it s tood was compacted. DW3 gave the opinion that water fr om the storm dr n could not find its way to the borehole as it was adequately blo ked by the concrete and sand bags. He furth er stated that the uprooted tree was not in the drainage neither was there any w er where it stood. 8.7 DWI Mwiya Songolo a Mining En with consultancy expenence 1n investigating of pollution, gave uncontroverted evidence that h e visi ed the construction site where he assessed the ground vibrat ·ons caused by the heavy duty machinery and he reviewed th reports made by the 2 nd respondent and PW3. He con.cl ded from the empirical evidence that the civil works shou ld e ruled out as the cause of contamination as the vibra tions ere insignificant to cause filtration of contaminants to the bor hole. His further opinion -J31 - t was that the source of contaminati n could have only been ascertained if the h yd r aulic pum ping test was carried out. 8.8 The evidence of DW4 the Ch em ical Engineer Technologist of Kafubu Water and Sewer age Compan , was to the effect that he inspected the appellant's premises d discovered unsanitary conditions in that solid sewer had s illed over and re-usable bottles for packa ging water \,vere lyi g in the sewerage . He found other unsanita ry conditions s ch as the borehole being situated only 6m a way fr om a leaking oilet and 2. Sm away from the manhole and th at th e b ottled ater was being capped manually. 8. 9 DW6 a Civil Engineer and Deputy Director of Engineering Services at the Ndola City Cou ncil st ted that his department carried out investigation s on the sit and at the appellant's premises but did no t arrive at a concl sion as to the source of contamination of the borehole water as there was need for further investigation s . 8.10 We are fully convinced that the d efend t's evidence mentioned above discredited the a p p ellant's evide 8.11 The appellant referred to th e p hotogr hs of works on record. -J32- storm drain was broken, there is n evidence that the water escaped to the "loosened soil. " This is upported by the evidence of DWl and DW2. In any case, there as no loosened soil as it had been compacted two weeks prior to the commencement of the works. In fact , what we see is evidence that as works progressed, the m easures put in pla e to avoid leakage of the water from the storm drain, took effec as the working area was dry. The pictures at pages 320 - 326 a d 328 - 341 of the record of appeal indicated this. 8.12 According to the evidence on rec rd, the 1st respondent uprooted the tree instead of just cutti g it down as authorised by the 2 nd respondent. Be that as it m , the appellant still bore the burden of proving its case on a bal nee of probabilities that the uprooting of th e tree the leakage of the contaminated wa ter into the a qu ifer. 8.13 The learned trial Judge took into a count all the evidence before her. She properly applied the case of Sithole v. The State Lotteries Board (ll where the S preme Court held inter alia that: "Where there is in fac t docu entary or pictorial evidence which forms the basis o{ the expert's opinion, -J33 - I it is necessary for these d oc ments to be properly proved and fo r the c ourt t o s e for itself the various points on which the expert bas s his conclusions." 8.14 We note that the evidence which t he a pellant says was ignored relates to preventive n1easure s and expert opinion evidence which was indeed t a k en into account. 8.15 In the case of Chansa v . The Peo ple 1 1 the Supreme Court held inter alia that: "When an expert gives e vid encj' it is the duty of the court to come to a fin di ng a nd Ie expert's evi.dence is merely there to assist the co rt in coming to its cone lusion. " 8.16 The lower court was able to see the wit esses and decide whose evidence was credible. Even if the court had believed the evidence of PW 1 to t h e effect that ther was no manual capping of bottled water by t he appellant, there as ample evidence that the bottled water was foun d to b e poll ted before the borehole water at the appellant's premises wa found to be polluted, meaning that the bottled water was not polluted while it was underground in the borehole but o the surface. For the -J34- foregoing r easons , t he 1st , 3 rd a n d th grounds of appeal lack merit and they are dismissed . 8.17 Ground two r elates to wbeth er th e 2 nd respondent was in breach of its statut ory d uty by not und e taking investigations to determine the source of con tam inati n of the borehole at the Pelican House . Althou gh th e appella t has the right to sue in the public interest in environmental T atters , the appellant did not sue on b ehalf of the owners of the ' elican House. Therefore , the 2 n d respondent w a s under n o leg obligation to investigate the alleged cont amination of th e bo ehole at Pelican House. Ground two is t h er efore also b ereft f merit. 8.18 Coming to the 5 t h a n d 6 th grou n d s of appeal 1n the tort of negligence , a compla inant is enjoine to prove that they have suffered actual d amage or loss before a court can find in their favour. Thus , in Co ntinental Re s t aur nt and Casino Limited v. Chulu (5 l the Supreme Court held t at: "The basis of awarding d a ma es is to vindicate the injury suffe red by the plaintift and no damages will be awarded if no proper e videnbe of medical nature is adduced." Further, in Sata v. Zambia Bottle rs Li ited (6 l it was held that: -J35- "Negligence is only actionable if actual damage is proved. The re is no right o action for nominal damages." 8.19 There was evidence th at cracks were al eady there in the storm drain in view of shrubs and other pl ts that were growing there. This in our view cannot be attributed to the 1s t respondent's works, notv;rithstanding hat the existing cracks were most likely worsened by breakin of the bridge and more cracks created. 8.20 We reiterate that the court below right y found that while there was evidence of contamination of t e appellant's borehole water, there was a lso evidence of o her possible sources of contamination. This is evident by the fact that tests conducted by Kafubu Water and Sewerage Co pany as per the testing report of 16 th May , 201 3 show' that hile total coliforms were not detected in the borehole water , 22' were detected in the packaged water. Similarly, on 17 th M , 2013 no total coliforms and E.coli were d etected in the b ore ole water while '31' total coliforms were d etected in the packa ed water. This shows that there was a problem of contaminatio in the appellant's factory. -J36 - , ( f 8.21 The lower court also allu ded to the lack bf a "h ydraulic pumping I I test" which cou ld h a ve ascertained wliether contamination of I the appellant's borehole was cau sed by the 1st respondent. I 8.22 The cause of th e contamination of tp.e appellant 's borehole I i I water was not d efi nitively proven a s the "h ydraulic pumping I test" was not d one . This we hold a gaib st the appellant on the I I authority of Wilson Masauso Zulu v. Avondale Housing Project Limited (7 l where it was held tliiat a plaintiff must prove his allegations and sh ould he fail to do so , he cannot be entitled to a Judgment whatever may b e s aid d>f the opponent's case. I I I I 8.23 There is therefore no m erit in gr oun fis 5 and 6 and they are dismissed. I I 8 .24 We now turn to gr ou nd seven which Fhallenges the decision of the lower cou r t to award nominal I damages in the sum of I K30 ,000.00 to the 1st re spondent. 8 .25 Under this ground , th e appella nt a lsq argued against the award of costs to both the 1st a nd 2 nd res pohdents. I 8.26 Although the issue of costs was not/ mentioned in the grounds of appeal, the r es pondents were g{ven ample opportunity to respond to the submissions but th ey/ did not. The issue of costs I I -J37- I is a legal one which can be b rought up at any time during the proceedings. For these reasons, we hav the jurisdiction to deal with both issues. 8.27 The appellant's learned counsel relied mainly on section 110 of the Environme ntal Manage m ent ct Number 12 of 2011 to fortify her contention that the courJ erred when it awarded nominal damages to th e 1" re s ponl ent and costs to both respondents. Section 1 10 reads a s folll ws: "110 (1) A person may sue f or da ages in respect of an act or o mission that con itutes a contravention of this Act or that is lik ly to have an adverse effect, w hether or n ot t at person or any other person has suffered , or is likely to suffer, any loss or harm from the a t or omission. (4) A court s ha ll not a w ard any costs or damages against a person who intitiates civil proceedings under subsection (1) u n i ss the court finds that the p rimary motivation or the proceedings was not a concern for t h e public interest or the enhance ment, protectio or conservation of the environment." -J38- 8.28 Counsel stated tha t the legislative inte t as regards section 110 is to encourage m em bers of the pu lie whether they had personally suffered damage or n ot to nitiate action against a potential wrongdoer, whose act or o ission contravenes the provisions of the Environmental Mana ement Act Number 12 of 2011 without fe ar of su ffering costs or damages. She therefore argued that a plaintiff in such atters should not be condemned to costs and/ or damages. 8.29 Further that it is irrelevant wheth r or not the appellant resumed production during the life of he "enforcement notice" as the contamination h ad not been dealt with and the 1st respondent's works were still threat ning to cause "further contamination. " 8.30 We totally accep t the appella nt 's c unsel's submission on nominal damages and costs as sectio 110 (4) is very clear. It entails that no pla intiff in an a cf on for pollution of the environment shou ld b e condemned to costs or damage~ unless the court finds th at the primary moti ation for the proceedings was not in the public interest or the enhancement, protection or conservation of th e environment. -J39- 8.31 In the present case , the awards of d a m ges and costs were not justified because there was no findin g t the effect that the key motivation for the proceedings was not concern for the public interest or the enhancem ent, protectio or conservation of the environment. 8.32 We are of the view that th e circumstan es of the case , do not at all support such a fin ding. 8.33 We find and hold tha t the a ppella nt's main motivation for the proceedings was a concern for the pro ection or conservation of the environment and in the public int rest as the intention was to protect its customers from consu ing contaminated water. The lower court therefore erred w en it ordered that the appellant should p ay nominal es to the 1st respondent and costs to both resp ondents. 8.34 Notwithstanding that th e appellant ad resumed production of bottled minera l water without in£ rming the other parties concerned , it is our considered o inion that it was utterly unjust to award the 1st respondent d mages for having stopped working during the period that th e nforcement notice was in force. -J40 - 8.35 For the foregoing reasons, the awards 9f nominal damages and costs are here by set aside. I 9.0 CONCLUSION 9.1 All things considered, the appellant failed to prove its case on the balance of probabilities. Even if we /accepted that it was not the duty of the appellant to bear th~ costs of the required hydraulic pumping test, the facts and It w would still stand that, it is the plaintiff's duty to prove his case and where a counterclaim is made, it is for the defel dant to prove it. 9.2 Only the seven th ground of appeal has succeeded. The ref ore, I the appeal is dismissed and we acc1rdingly order that each I party shall bear its own costs. I M. M. KONDOLO COURT OF APPEAL J DGE C. K. MAKUNGU COURT OF APPEAL JUDGE -~····~ I B. M. MAJULA ' ·-········ COltRT OF APPEAL JUDGE I I -J41-