Astro Holdings Limited and Anor v Arm Secure Limited (APPEAL NO 274/2023) [2024] ZMCA 343 (23 December 2024)

" IN THE COURT OF APPEAL OF ZAMBIA . APPEAL NO 274/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) ASTRO HOLDINGS LIMITED FURNITURE HOLDINGS LIMITED ADDIT TOURS AND TRAVEL LIMICfEB F ,!. C vKl Ut-Af'p4i_ AND .r; 3 DEC WZ4 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT ARM SECURE LIMITED RESPONDENT CORAM: Siavwapa, JP, Banda-Bobo and A. N. Patel, JJA On 17th September, 2024 and 23rd December, 2024. For the Appellant: Mr C. Sianondo and Mr C. Malambo of Messrs Malambo and Company and Ms. N. Mbuyi of Messrs Paul Nora Advocates For the Respondents: Mr. M. Ndalameta of Messrs May and Company JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. Cases referred to: 1. David Stephen Gatune v. Headmaster, Nairobi Technical 2. 3 . 4. 5. 6 . High School & Another (Appeal No. 79 of 1982) Pickles v. National Coal Board (1968) 2 All ER 598 Caxton Publishing Co. Ltd v. Sutherland Publishing Co. ( 1939) AC 178 Armed Wandi and Sma rt Transport v. Kostic Investments Limited (Selected Judgm ent No. 30 of 20 19) A. M. I v. Peggy Chibuye (1992) ZR 50 Ace Audit Express (Z) Limited v. Africa Feeds Limi ted (2009) J1 'f • 7. 8. Attorney General v. Marcus Kampumba Achiume (1983) ZR 1 Robson Banda (suing as administrator of the estate of the late Rosemary Phiri) v. Varisto Mulenga (suing as administrator of the estate of the late Steven Kabamba) (2003) ZR 121 9. William Carlisle Wise v. E. F. Hervey Limited (1985) ZR 179 10. Anderson Kambela Mazoka & 2 Others v. Levy Patrick Mwanawasa & 2 Others (2005) 11. Christopher Lubasi Mundia v. Sen tor Motors Limited ( 1982) ZR 66 12. Masautso Zulu v. Avondale Housing Project Limited ( 1982) ZR 172 13. David Chiyengele and Others v. Scaw Limited (Selected Judgment No. 2 of 2017) 14. Medical Stores Limited v. Kanyembe and Others (Appeal 139 of 2007) 15. China Hernan International Technical Cooperation v. Mwange Contractors Limited (2002) ZR 29 16. ZESCO Limited v. Harrison Tembo (Appeal No. 71 of 2016) 17. Barnabas Ngorima v. Zambia Consolidated Copper Mines Limited (Appeal No. 121 of2014) 18. Dominic Masauso v. Attorney General (2012) ZR 551 Volume 3 19. Pre Secure Limited v. Union Bank Zambia Limited and another (Appeal No. 13 of 2003) 20. Securicor Zambia Limited v. William Jack & Company (Zambia) Limited (Appeal No. 24 of 1990 21 . Sylvester Musonda Shipolo v. Mass stores (Pty) Limited (Mass Discounters Zambia Game) (Appeal No. 157 of 2014) 22. Mugala v. The Attorney General ( 1988-1989) ZR 171 23. YB and F Transport Limited v. Supersonic Motors Limited (2000) ZR 22 24. Consolidated Bank of Kenya Limited v. Securicor Security Services Kenya Ltd (2013) eKLR 25. Mwila v BP Zambia Plc. (2013) ZMH 26. Philip Mhango v Dorothy Ngulube and Ors J2 Legislation referred to: • • The Limitation Act, 1939 The Limitation Act, Chitty on Contracts (27th Edition, Vol 1, Page 1334) Other works referred to: • Chitty on Contracts (27th Edition, Vol 1, Page 1334) 1.0. 1.1. INTRODUCTION This is an appeal against the judgment of the Honourable Justice Ireen Zeko Mbewe delivered in the High Court at Lusaka, on 11 th July 2023. We shall refer to the parties as they appear in this court. 2.0. BRIEF BACKGROUND 2.1 The brief background is that the Respondent took out a writ of summons accompanied by a statement of claim on 21 st April 2021 before the High Court, seeking the following reliefs: 1. An order for the immediate payment of the sum of ZMWS,455, 157.80 as fees for the security services provided to the Defendant from 1st September 2016 to 30th March 2021; 2. Damages for breach of contract J3 3. Interest on the outstanding amount at 5% above First Alliance Bank Zambia Limited base lending rate from the date when the cause of action arose to the date of judgment and thereafter pursuant to section 2 of the Judgments Act, Chapter 81 of the laws of Zambia; 4. Further or other relief; and 5. Costs of and incidental to this action. 2.2 The 1st Appellant counter-claimed the following: 1. Damages for breach of contract 2. An Order for the payment of the sum of K40,189,309.68 being the amount outstanding after deducting the amount outstanding to the Plaintiffs; 3. The sum being loss of business; 4. Interest from the date the amount fell due until final payment 5. Any other relief the court may deem just 6. Costs of and incidental to this action . DECISION OF THE LOWER COURT The High Court delivered its judgmen t on 11 th July 2023, upholding th e Responden t's claim and awarded th e fallowing reliefs: i. An order for the immediate payment of the sum of ZMW 8,455,157.80 J4 3.0 3.1 ii. Nominal damages of K6000.00 for the breach of the contract; iii. Interest on the outstanding amount under (i) shall be at the short term deposit rate from the date of writ to Judgment and thereafter at the commercial lending rate until full payment; simple interest shall accrue on the nominal damages of K6,000.00 under (ii) from the date of Judgment until full payment. 3.2 As regards the counterclaim, the learned High Court Judge found that the Appellants partially proved their case and the court granted an order for the Registrar to assess the amount due to the Appellants for the value of goods stolen within the period not statute-barred at K2,500.00 for every loss suffered. The High Court Judge declined to award damages for breach of contract and other claims in the 4.0 4 .1 counterclaim. THE APPEAL The Appellants, dissatisfied with the judgment, filed a Notice of Appeal, fronting nine grounds as follows: (1). The Court below erred both in law and in fact JS in finding that the loss as a result of theft was statute barred; the Court erred in refusing to find for the Appellants by stating that finding for the Appellants on account of theft would be tantamount to seek to enforce a judgment; (2). The Court erred in law in finding imputation of negligence when what happened is theft and thereby conversion by the Respondent through its employees; (3). The Court below erred both in law and fact when, having found the Respondent's employees to have misconducted themselves through theft of Appellants' property, it gave effect to the limitation clause; (4). The Court below erred both in law and in fact in granting the sum of ZMW 8,455.157.80 to the Respondent without due regard to the amount which was paid to the Respondent and the loss which the Respondent caused to the Appellants; (5). The Court below erred in law and in fact in holding that the statement of account for the period January 2015 to September 2015 on page 14 to 18 of the Plaintiff's Bundle of Document shows payment paid to 3 rd Appellant which correspond with invoices on page 27, 28,29, 30, 32, 33 34 and 39 of the J6 Appellants Bundle of Document when no such correlation exists; (6). The Court below erred both in fact and law by finding that the terms of the unsigned and oral contract is the same as the executed contract of 2 nd July, 2015 contrary to the letter dated 27th July 2012 and the Respondent's pleadings; (7). The Court below erred in law and fact in: (a) Holding that the 1st Appellant failed to meet its contractual obligations when the Appellants were owed money by the Respondent. (b) in law in granting damages for breach of contract when the Appellants were owed by the Respondent. (c) in granting interest when the Appellants were owed. (8). The Court below erred in law in refusing to grant the Appellants damages despite the acceptance of theft by the Respondent's employees and also accepting that there were amounts outstanding for the Appellants; (9). The Court below erred both in law and in fact in failing to enter judgment on admission in favour of the Appellants by failure to specifically traverse the Appellants counterclaim by the Respondent. J7 5.0 5 .1 CROSS APPEAL The Respondent, also dissatisfied with the judgment, filed a Cross- Appeal a dvancing four grounds as follows: 1. The Court below erred in law and in fact when it held that the Appellants were entitled to compensation for goods stolen within the period not barred by statute and directed that there should be assessment yet the Court had already held that the contractual provision limiting damages to ZMW 2500 was valid. 2. The Court below erred in law and in fact when it directed that there should be assessment of purported amount owed from air tickets in circumstances where firstly the Appellants had simply failed to prove that they were owed, and secondly where the Court had already accepted the Respondent's evidence that it applied a set off to the air tickets debt and thereby pursued a lower claim in this action 3. The Court below erred in law and in fact when it held that there should be assessment for loss caused as a result of negligence yet the Appellants neither pleaded nor proved negligence in respect of goods stolen within the period not barred by statute, and in any event, if negligence were proved, loss would have been fixed at ZMW 2500; J8 6 .0 6.1 4. The Court below fell into error when it awarded 50% costs to the Appellants, instead of viewing the litigation as a whole and determining the substantial result which would reveal that the counterclaim failed. ARGUMENTS IN SUPPORT In the heads of argument in support of this appeal, it was submitted in ground 1, that the conviction for the theft occurred much later in the court process. Therefore, the imposition of the statute of limitations by the lower court was disconnected from the reality of the case. That a party can only be held responsible once the investigation report is completed, and after the conviction of those responsible. 6. 2 Reference was made to the cases of David Stephen Gatune v. Headmaster, Nairobi Technical High School & Another1 , Pickles v. National Coal Board2 , and Caxton Publishing Co. Ltd v. Sutherland Publishing Company3, among others, on when time begins to run for the purposes of the limitation period and the meaning of conversion. 6 .3 In arguing ground 2 , on the lower court's imputation of n egligence, it was submitted that the only way to prove J9 that the Respondent's actions as a security service provider fell short of the required standard, was through the investigation report fallowing the conviction of the employees, who were considered innocent until proven guilty. It was argued that time began to run from June 13, 2017, when the conviction occurred. Reference was made to the case of Armed Wandi and Smart Transport v. Kostic Investments Limited4 regarding the elements of negligence. 6.4 Under ground 3, it was submitted that the court erred in enforcing the limitation clause, as it should not apply where wrongdoing was committed by the Respondent or its employees. That the court incorrectly used the exemption clause to limit the value of goods stolen to K2, 500.00, given that the theft was perpetrated by the Respondent's employees. Reference was made to the cases of A. M. I v. Peggy Chibuye5 and Ace Audit Express (Z) Limited v. Africa Feeds Limited6 regarding circumstances where an exemption clause cannot be used by a party at fault in a contract. JlO 6.5 Under ground 4, it was argued that there is no evidence to show that an amount of K3, 783,340.12 was paid to the 3 rd Appellant. That therefore, the court erred in holding that the sum ofK8, 455,157.80 was due to the Respondent when there was documentation indicating that the balance was US$ 27 ,309.60 and no evidence was presented that this amount was paid to the 3 rd Appellant. Reliance was placed on the case of Attorney General v. Marcus Kampumba Achiume7 , which emphasizes the necessity for the trial court to conduct a proper review of the evidence to avoid misrepresentation of facts. 6.6 It was submitted under ground 5 that pages 14 to 18 of the Plaintiffs Bundle of documents did not show payments made to the 3 r d Defendant (3rd Appellant), that correlate with the Defendant's Bundle of documents on pages 27, 28, 29, 30 , 33 , 34, and 40 . It was argued that pages 14 to 18 contain the bank statement, while the invoices reflected in the Defendant's Bundle do not align with the bank statement. That the lower court failed to consider the documentary evidence on record. To support, this Jll proposition, reference was made to the case of Robson Banda (suing as administrator of the estate of the late Rosemary Phiri) v. Varisto Mulenga (suing as administrator of the estate of the late Steven Kabamba) 8 6. 7 Regarding ground 6, it was argued that the contents of the oral and written contracts did not match the pleadings, which stated that the written contract was left with Sanmukh R. Patel. Furthermore, that the contract that was purportedly delivered to Mr. S . R. Patel was not actually delivered, thus the terms of the pre-2015 contract did not apply to the 2015 contract. Reference was made to the cases of William Carlisle Wise v. E. F. Hervey Limited9 , Anderson Kambela Mazoka & 2 Others v. Levy Patrick Mwanawasa & 2 Others 10 , and Christopher Lubasi Mundia v. Sentor Motors Limited11 , among others, on the principles governing pleadings. 6.8 As for ground 7, it was argued that there is no dispute that the Respondent was employed to protect the Appellants' goods , which were stolen due to the Respondent's actions. It was submitted that the court's finding, that the party J12 owed cou ld not be subject to a breach of contract, and that no interest would accrue, was an error. This argument was supported by reference to the case of Masautso Zulu v . Avondale Housing Project Limited12 , indicating that the analysis of the court below cannot be sustained. 6.9 For ground 8 , it was submitted that in this case, there are not nominal but real damages; thus , the lower court erred in denying the Appellants damages. That the only way to restore the Appellants, is to compensate them for the losses incurred due to the theft of goods and the ongoing loss of business that could have been gained. Reference was made to the case of David Chiyengele and Others v. Scaw Limited 13 • 6.10 Regarding ground 9, it was argued that the Appellant failed to address paragraph 23 of the Defence and Counterclaim, which clearly indicated that the Respondent did not deny the counterclaim aspect. Consequently, the court should have entered judgment on admission in favour of the Appellants. Reference was made to the cases of Medical Stores Limited v . Kanyembe and Others 14 and China J13 7.0 7 .1 Hernan International Technical Cooperation v . Mwange Contractors Limited 15 . ARGUMENTS IN OPPOSITION In the Respondent's heads of argument, it was submitted that, with regard to grounds 1 and 2, the Appellants did not plead that the loss resulting from theft was due to the negligence of the Respondent. It was argued that a party claiming negligence must provide particulars of that negligence. Furthermore, the Appellants did not plead conversion in the court below, and thus, they cannot now raise an issue that was not previously raised. Reference was made to the cases of ZESCO Limited v. Harrison Tembo 16 and Barnabas Ngorima v. Zambia Consolidated Copper Mines Limited17 to support this argumen t . 7 .2 Regarding when time began to run, it was submitted that the 2nd Appellant's claim against the Respondent accrued when the alleged theft occurred between December 1 and December 29, 2014. This was the period du ring which the 2nd Appellant was entitled to make a claim against the Respondent. Reference was made to the Limitation Act, J14 Chitty on Contracts (27 th Edition, Vol 1, Page 1334), and the case of Dominic Masauso v. Attorney General1 8 . 7 .3 For ground 3, it was argued that the exemption clause in the contract between the Appellants and the Respondent was sufficiently broad to limit the Respondent's liability for any loss suffered by the Appellants. It was further argued that the exemption clause the Respondent relied on was clearly expressed, and therefore, the court cannot be faulted for upholding a clause that was voluntarily agreed upon by the Appellants. Reference was made to the cases of A. M. I Zambia Limited v. Peggy Chibuye5 , Pre Secure Limited v. Union Bank Zambia Limited and another19 and Securicor Zambia Limited v. William Jack & Company (Zambia) Limited20 • 7.4 Regarding ground 4 , it was argued that the court was on firm ground when it held that the Respondent was owed ZMW 8,455,157.80. Furthermore, that the lower court's findings of fact were supported by the evidence on record and should not be reversed. Reference was made to the case JlS of Sylvester Musonda Shipolo v. Massstores (Pty) Limited (Mass Discounters Zambia Game) 21 7 .5 On ground 5, it was contended that the Appellants' argument, that because the dates of the 3rd Appellant's invoices appearing on pages 148, 149, 150, 151, 155, and 158 of the record of appeal do not correspond with the transaction dates on the Respondent's statement of account, it follows that the 3rd Appellant's invoices were paid, is flawed . 7.6 It was argued that the Respondent's statement of account shows amounts that correspond to the 3rd Appellant's invoices, particularly invoices Nos. 1853, 1860, 1852, 1854, 2196, 2268, 2282, and 2646, as seen on pages 149, 151, 148, 150, 153, 154, 155, and 158, and these are shown on the statement of account at page 102 of the record of appeal. 7. 7 It was argued that the lower court properly considered the evidence on record and reached a conclusion supported by that evidence. To support this position, once again, J16 reference was made to the case of Sylvester Musonda Shipolo v. Mass stores (Pty) Limited21 . 7 .8 In response to ground 6 , it was submitted that in determining whether the terms of the oral contract were reflected in the written contract, the lower court duly considered the correspondence and conduct of the parties. 7. 9 Regarding ground 7, it was submitted that whether or not the Appellants owed money to the Respondent was irrelevant to whether the 1st Appellant complied with its contractual obligations. 7 .10 In response to ground 8 , the Respondent reiterated its arguments on grounds 1 and 2 , emphasizing that the Appellants did not plead that the theft occurred as a result of negligence on the part of the Respondent. As such, the trial court was correct in refusing to award damages based on the Appellants' pleadings. 7 .11 Regarding ground 9, it was submitted that the Respondent addressed the allegations of theft in the Appellants' counterclaim. That in the Amended Defence to the Counterclaim, found on pages 80 to 81 of the J17 record of appeal, the Respondent, in paragraph 15, reiterated the con ten ts of paragraph 22 of th e Statemen t of Claim, which traversed the allegations of th eft. ARGUMENTS FOR THE CROSS APPEAL The Respondent also filed a cross-appeal on April 4, 2024. On August 8, 2024 the Appellants filed heads of argument in opposition to the cross-appeal. 8.0 8.1 8.2 In the heads of argument supporting the cross-appeal, it was submitted that th e court below accepted th e limitation clause, and the matter should have ended there. It was argued that conductin g an assessment where liability for n egligence was established would, in effect, reject the exemption clause. Reference was made to ZESCO Limited v. Harrison Tembo 16 regarding the requirement that a trial court should not consider issues not pleaded. Further reference was made to the case of Mugala v. The Attorney General22 , arguing that in casu, the Respondent was non-su ited, by the cou rt treating the counterclaim as if it was based on negligence. J18 8. 3 It was further argued that the trial court gave no reasons for ordering the Respondent to bear 50% of the costs of the counterclaim. Reference was made to the case of YB and F Transport Limited v. Supersonic Motors Limited2 3 . 8 .4 The main argument by the Appellants in response to the cross-appeal, was that under normal circumstances, the court should have disregarded the limitation clause in the standard contract because the Respondent's employees were responsible for the stolen goods they were supposed to secure. Reference was made to, among other cases, Consolidated Bank of Kenya Limited v. Securicor Security Services Kenya Limited24 • 8.5 Responding to ground 2 and 3 of the cross-appeal, it was argued that the Appellants had proved their claims for air tickets, and the court properly assessed the evidence from both parties, finding that some amounts were due and could be determined at assessment. 8.6 Concerning the award of 50% of the costs to the Appellants, it was submitted that it would not be in the J19 interest of justice to deny the Appellants costs, as they had succeeded in obtaining a number of reliefs. 8. 7 In reply, the Respondent reiterated the arguments 1n 9.0 9 .1 support of the cross-appeal. HEARING At the hearing of the matter, counsel for the Respondent in submitting on its cross-appeal, relied on the record of appeal and heads of argument filed with brief oral augmentation. 9.2 Submission was made in support of the cross-appeal, that a cause of action arises when a party has material proof that will entitle them to succeed. It was submitted that June 13, 2017, when the convictions occurred, was the date the cause of action arose. Furthermore, that the case did not involve negligence, as the theft was carried out by the Respondent's guards. 9.3 It was further submitted that the three payments considered by the lower court were ZMW 1 million, as reflected on page 348 of the record of appeal, which is linked to the bank statement at page 31. Additionally, J20 ZMW 3 ,850,000.00 was also reflecting on pages 19 and 56, suggesting that the amounts were paid. 9.4 In opposition to the cross-appeal, it was argued that the case before the lower court was for the recovery of fees for security services, which the appellants had accepted. Furthermore, a counterclaim introduced by the appellants stated that goods worth US$500 ,000.00 were stolen from their premises, but no evidence was presented to support the value of the stolen goods. DECISION OF THIS COURT We have considered the appeal together with the arguments in the Appellants ' and the Respondent's Heads of Argument and the authorities cited. We have also considered the impugned judgment. 10.0 10 .1 10.2 The main issue for determination on appeal in this matter is whether the Appellants are entitled to compensation for the loss as a result of thefts that occurred through the Respondent's employees and whether the claim was statute barred . J21 10.3 In the first ground of appeal, the Appellants contend that the Court below erred when it held that the loss that occurred as a result of theft was statute-barred. On the other hand, the Respondent contends that the Appellants did not provide any particulars of any negligence in the pleadings and consequently this court should not consider the evidence put forward to prove that the Appellants are owed as a result of the theft. Further, that time began to run when the theft occurred between 1st and 29th December, 2014. 10.4 In addressing this ground of appeal, we are guided by Section 2 of the Limitations Act 1939, which provides as follows: "Limitation of actions of contract and tort, and certain other actions. ( 1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say: (a) actions founded on simple contract or on tort." 10.5 Further in the case of Wise v EF Hervey Limited9 the Supreme Court re-echoed the above provision regarding JLL pleadings and accrual of a cause of action when it held that: ''Pleadings serve the useful purpose of defining the issues of fact and of law to be decided; they give each party distinct notice of the case intended to be set up by the other; and they provide a brief summary of each party's case from which the nature of the claim and defence may be easily apprehended; (ii) A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right or entitlement to a judgment in his favour against the other." 10.6 Further guidance is found in the case of Mwila v BP Zambia Pie. 25 where the Court stated as follows: "the court will not come to the aid of a litigant who has sat on his rights for such a long time ...... . (the period runs from the point where the injury or problem was created!' 10. 7 A review of the evidence on pages 4 7 to 53 of the record of appeal reveals that the Appellants wrote to the J23 Respondents informing them of the thefts that occurred in December 2014, 22nd April 2015, and 19th March 2018. 10.8 It is clear, pursuant to the provisions of the Limitation Act cited above , that the thefts that occurred in 2014 and 2015 are statute-barred as the causes of action arose six years prior to the institution of litigation. We, therefore , opine that the trial Judge was on firm ground when she held that the Appellants were entitled to compensation for goods stolen within the period not statute-barred. We find no merit in this ground. 10.9 The argument under ground 2 is that the court erred when it held that there was an imputation of negligence. The Appellant argues that what happened is theft and thereby conversion by the Respondent through its employees. 10.10 A review of the record shows that the parties entered into a contract for the provision of security services and clause 12 specifically provided as follows : J24 "the company or any of its employees shall not be liable for any loss or damage to the clients, the clients, customers or visitor's property or injury or death. However, if the loss, damage, injury or death is caused due to the negligence by the company or any of its employees, the refund/ compensation amount shall not exceed K2,500.00 per event or incident on condition that the said damage/loss is reported in writing to the company within 3 days of its occurrence." 10. 11 The authors of Chitty on Contracts General Principles, Vol. 1, 20th Edition, had this to say on contractual principles: "the cardinal presumption is that the parties have intended what they in fact said, so that their words must be construed as they stand. That is to say, the meaning of the document or part of it is to be sought in the document itself: one must consider the meaning of the words used, not what one may guess to be the intention of the parties." 10.12 Our understanding of the above authority is that the meaning of a contractual agreement, where there is a written document, must be sought from the document itself. J25 10.13 It is our considered view that the lower court was on firm ground when it referred to the theft as negligence by the Respondent's employees because that was what was in the contract. The relief which was being sought, although arising from theft, emanates from a clause in the contract which specifically provides for relief to the other party where the theft is a result of negligence by the Respondent company or any of its employees. This ground lacks merit and is dismissed. 10.14 In ground 3, the argument is that the court erred when it gave effect to the Limitation Act, having found that the Respondent's employees misconducted th emselves. 10.15 In addressing this issue, guidance is sou ght from the case of Pre-Secure Limited v Union Bank Zambia Limited & llakumari Grish Desai19, where it was held that: " ... This clause was binding on the appellant and the respondents and the learned trial judge was in error in holding that the limitation clause was ineffective by virtue of a 'fundamental breach' of the contract on the part of the appellant ... " J26 10.16 It is, therefore, our considered view that the lower court was on firm ground to enforce the limitation clause. This ground lacks merit. 10.17 Under ground 4, the argument is that the court erred in granting the sum of ZMW 8,455,157.80 to the Respondent. The Appellant is of the view that the lower court did not consider the amount already paid to the Respondent and the loss which the Respondent caused to the Appellant. 10.18 A perusal of the record shows that before granting the payment above, the lower court considered the contract entered into by the parties dated 2 nd July 2015 and the correspondence that occurred between the parties. The record shows at pages J20 and J2 l that the lower court considered the set-off agreed upon by the parties. This ground therefore fails for lack of merit. 10.19 Under ground 5, the argument is that the lower court erred in holding that the statement of account for the period January 2015 to September 2015 on pages 14 to 18 of the Plaintiff's Bundle of Documents shows payment made to the 3rd Appellant which corresponds with invoices on pages 27, J27 28 , 29, 30, 32, 33 , 34, and 39 of the Appellants' Bundle of Documents . The Respondent's argument is that no such correlation exists. 10.20 A review of the record reveals that there was correspondence regarding the theft that occurred in 2015 and that the parties were engaged in discussions to settle the accounts. It is also clear from pages 28 to 39, that the 3 rd Appellant issued invoices for air tickets to the Respondent. 10.21 Furthermore, the letter at page 14 of the Plaintiffs Bundle of Documents shows that the parties were engaged in talks regarding compensation, and the 1st Appellant declined the proposal by the Respondent to make a claim on the Respondent's insurance. 10.22 We note that in addressing this issue, the lower court found as a fact that the parties had agreed to set off the amount due to the 3 rd Appellant from what the Respondent owed the 1st Appellant. We therefore find that the court's opinion under this ground and the reference to the aforementioned J28 • pages was based on facts. Therefore, this ground lacks merit. 10.23 As regards ground 6 , the argument is that the court erred when it held that the unsigned and oral contract was the same as the executed contract of 2 nd July 2015, contrary to the letter dated 27th July 2012 and the Respondent's pleadings. The evidence shows that the Respondent provided services prior to the signing of the contract executed on 2 nd July 2015. The lower court based its decision on the written contract, which was supported by the oral contract. This ground therefore lacks merit. 10.24 Under ground 7, the argument is that the lower court erred when it held that the 1st Appellant failed to meet its contractual obligations when (a) the Appellants were owed money by the Respondent; (b) in granting damages for breach of contract when the Appellants were owed by the Respondent; and (c) in granting interest when the Appellants were owed. 10.25 A perusal of the judgment of the lower court, as already analyzed above, reveals that the learned High Court Judge J29 • I • considered that the 1s t Appellant failed to meet its contractual obligations by not paying for the security services. Hence, the court was on firm ground to grant damages and interest based on that. This ground fails for lack of merit. 10.26 In ground 8 , the argument is that the court erred in refusing to grant the Appellants damages despite the acceptance of theft by the Respondent's employees and also accepting that there were amounts outstanding for the Appellants. 10.27 In addressing this issue, we have looked at the decision of the lower court at page 43 of the appeal record where the court, in denying the award of damages, stated that: "the 2 nd defendant has not shown what goods were stolen and the impact the said goods had on financial status or growth." 10.28 A perusal of the record reveals that indeed no such evidence was adduced in the lower court. We therefore find that the lower court cannot be faulted in the circumstances, for refusing to award damages. There is no merit in this ground. J30 . ' ' . 10.29 In ground 9, the argument is that the court erred by refusing to enter judgment on admission in favour of the Appellants due to failure to specifically traverse the Appellants' counterclaim against the Respondent. 10.30 It is clear from the record that the Appellants were asking to enter judgment on admission simply because thefts occurred and the amount claimed included the value of stolen items and profit. Having found that some of the theft claims were statute-barred, and that the 2 n d Appellant did not show how the losses were made, it is our considered view that the High Court Judge was on firm ground to not enter judgment on admission in the circumstances. Therefore, this ground also fails. 10.31 We now turn to the grounds under the cross-appeal. Under ground 1, the argument is that the court erred when it held that the Appellants were entitled to compensation for goods stolen within the period not barred by statute and directed that there should be an assessment, yet the court had already held that the contractual provision limiting damages to ZMW 2 ,500 was valid. J31 10.32 The lower court found as a fact that there were thefts that occurred and that some of the thefts , whose actions commenced after six years, were therefore statute-barred. It is our considered view that the court cannot be faulted for having ordered an assessment on the contractual provision limiting damages to ZMW 2 ,500.00. Th e learned High Court Judge stated in her judgment at pages J37 and 45 of the record of appeal, when ordering the assessment that: " .. .. the amount due to the Appellants for the value of goods stolen within the period not statute barred at K2500.00 for every loss suffered ..... " 10.33 It is our considered view that the lower court made it clear that the value to be assessed would be limited to K2 ,500.00 for every loss suffered. The court did not adjudge that the damage was limited to K2,500, but it was to apply for every loss that occurred. The figure was not a blanket figure, hence her stating as she did and how much damage each theft occasioned. Therefore, we see no merit in this ground as the assessment may m ean establishing J32 ' ' . . the number of thefts that occurred. This ground therefore fails. 10.34 Ground 2 seeks to fault the lower court for holding that there should be an assessment of the purported amount owed from air tickets. The Respondent's argument is that the Appellants had failed to prove that they were owed, and further that the court had already accepted the Respondent's evidence that it applied a set-off to the air tickets debt. 10.35 However, the record shows that the learned Judge stated that although she had found that there was proof of invoices issued by the 3rd Appellant in relation to air tickets issued to the Respondent, and the fact that there was evidence showing payments made to the 3rd Appellant, the evidence before her did not state in clear terms how much was due to the 3 rd Appellant for air tickets. This was the reason for ordering the registrar to assess the amount due to the 3 rd Appellant. This ground fails. J33 l, ... ·) • 10.36 Under ground 3, the argument is that the court erred when it held that there should be an assessment for loss caused as a result of negligence. The Respondent's argument is that the Appellants neither pleaded nor proved negligence in respect of goods stolen within the period not barred by statute. 10.37 In addressing this ground, we have looked at the letters at pages 263 and 264 of the record of appeal. The reading of the aforementioned letters reveals that correspondence between the 1st Appellant and the Respondent was to the effect that the parties did not dispute that the theft arose or was orchestrated by the Respondent's officers. It is also clear that the theft was not one but several. There was no need for the Appellants to plead negligence because this arose from a contractual clause which already spoke to negligence of officers and was not disputed. We find this ground unmeritorious. 10.38 The fourth ground questions the lower court's decision to order 50% costs to the Respondent. J34 10.39 According to the Respondent, had the lower court determined the whole case, the substantial result would reveal that the counterclaim in the lower court failed. 10.40 This ground lacks merit because it does not point to a specific error by the lower court. The learned Judge found that the counterclaim partially succeeded and she gave reasons. There is thus no merit in this ground. 10.41 In the case of Philip Mhango v Dorothy Ngulube And Ors26 the Supreme Court held that: "The court will not reverse findings of fact made by a trial judge, unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." 10.42 On the basis of the evidence on record, we opine that the Court was on firm footing in all the grounds, and there is no basis on which we can overturn it. 11.0 CONCLUSION 11.1 For the reasons stated above, we uphold the lower Court's J35 decision. Both the appeal and the cross-appeal are without merit and are dismissed. 10.2 Each party to bear own costs . ................ J .................. .. M. J. Siavwapa Judge President A. M Banda-Bobo Court of Appeal Judge .... ~~.(-:F) ......... . A. N Patel, SC Court of Appeal Judge J36