Bulk Transport Limited v Mopani Copper Mines Limited (211 of 2016) [2019] ZMSC 266 (28 November 2019)

' l IN THE SUPREME COURT OF ZAMBIA HOLDEN A'T KABWE ;(Civil Jurisdlction) BETWEEN: . . Appeal No,. 211/2016 BULK TRANSPORT LIMITED APPELLANT AND RESPONDENT Coram:: Mali1a, K :~jimanga and Kah uka, JJS On 5t11 Novembe:r, 201'9 a:nd 2,Sth No·vember, 2019 For the Appel. Zant: Mr. M. M. Sianondo, Messrs Malambo & Company For the Respondent: Mr. A. Gondwe, In-house Legal Counsel, Mopani Copper Mines Plc . . JUD GM ENT MALILA, . Js delivered the Judgment of the Cou rt. Cas·es .reforred to: 1 . . Nkata and 4 Others v. Attorney General (1966) . ZR 124 2 . . Antonio Ventriglia and Manuela Ventriglia v. Eastern and Southern African Trade and Development Bank (SCZ Judgment No. 13 of 2010) 3. Justin Chansa v. Lusaka City Council (2007) ZR 256 4. Wesley Mulungushi v. Catherine Bwale . Mizi Chomba (2004) ZR 96 5. Communications Authority v. Vodacom Zambia L'td. (SCZ Judgment No. 21 of 2009) 6. Khalid Mohamed v. Attorney General ( 1982) ZR 49 .. J2 7. Wilson Masau.so Zulu u. Avondale Housing Project Ltd (1982) ZR 172 8. Zambia Revenue Authority v .. Dorothy . Mwanza & Others {2010),(2) ZR 181 9. Simwanza Namposya v. Zambia State . Insurance Corporation Ltd {2010)(2) ZR339 10. Examinations Council ofZambia v. Reliance Technology {2014)(3)ZR 171 11. Attorney General u .. Kakoma ( 1975) ZR 2 16 Legislatio:n r·eferre·d to: Evidence . Act, chapter 43 of the Laws of Zambia 1.0 Introductio n 1. l The dispute, which in its legal bearing we are being called upon to determine in this appeal, concerns structural damage suff:ered by the appellant's buildings located at Far.m No. 839, Kitwe :(the property). The appellant a lleges that the said damage was occasioned by mining and related activities undertaken by the respondent. 1.2 The respondent denies most emphatically that its m 1n1ng activities or any activities attributable to it:s operations caused the damage alleged, or at all. 2 .0 Factual backg:rou:nd 2. l The appellant owns the property at which are office buildings, a shed, a subs t ation, a workshop, a guard house, an ablution J3 block and a canopy for a filling station. It is bordered by a two-meter-high h umpty-du mpty wall fence., with a double opening steel gate. It also b as a tarred d riveway and a parking area. 2.2 The respondent is a mining compan,y which, at all material times, was executing its expansiom program of open pit mining in an area known as Area IE, (the proposed m ining area) situated in the vicinity of, or proximate to, the appellant's property. 2.3 . In furtherance of ii.ts desire to expa nd its mining activities, the r esponden t was obliged by an environmental impact assessment directed by the Zambia Environmental Managemen t Authority '(then !Environmental Council of Zambia i(ECZ'fL to undertake a geotechnic.al and structural assess.ment the i»ur pos e of \which was to ascertain t he suscept ibiLity of dwellings and structures in the proposed mining area, to premature failuire or damage as a result of incr eased vibrations from blasting. To this end the ,,I J4 respondent engaged Messrs . JKL Associates, Geotechnical and Piling Engineers, to undertake the exercise. 2. 4 The appeUant alleged t hat the geotechnical and structural assessment undertaken iby ,JKL Associates involved underground iblasiting and othe r explosive related activities with dLre consequences to the structural integrity of its property as particu[arized at paragraph 2. 5 below. 2. 5 The appellant claimed that th.e blasting and explosive related activities drorne by or at the instance of the respondent caused cracking and partial sinking of some structures at its property., a £ac1t the appellant al[e,ges was confirmed in a professional report furnished to thre appellant by Messrs Mak Associates., ]Registered Valuation Surveyors and Asset/ Property Managers. :2.6 The said report recommended the demolition of all existing struotur es on the property and the construction of new buildings 'With expensive r einforcement, the cost of which construction was at that time estimated at US$ 1,005,000=00 .(One Million and Five Thousand United States Dollars). JS 3.0 L·egal action in the High Court and the judgment 3.1 On the basis of the foregoing facts, the appellant (then plaintiff) was aggrieved by the damage to its property which it attributed to the respondent's mining operations. It thus commenced court proceedings in the High Cou rt, claiming: (i) damages; (ii) loss of business; (iii) rental charges for lea sing of offices; (iv) an order direct ing the respondent (then defendant) to demolish and reconstruct the structures at is expense; (v) special damages; (vi) interest and (vii) any other relief the court may deem just. .3.2 For its part, the respondent rejected the notion that the geotechnical and st ructural assessment undertaken by JKL Associates, involved any underground or explosive related activities as alleged by the a ppellant. According to the respondent, what that assessment did in fact in volve, was an evaluation of the appellant's and third parties' buildings s o as to assess their state and s t ructural integrity before the mining operations in Area E were commenced. 3.3. The respondent thus denied that either it, or its JG commissioned agent, was responsible for the cracking and partial sinking of the appellant's building structures at the property. Not only did the respondent gainsay the appellant's claim, it also averred that the geotechnical and structural assessment by JKL Associates revealed that prior to the respondent's commencement of mining activities in Area E, the appellant's buildings, as well as those in the vicinity of the proposed mining area, were already in a state of cracks, parti,al sunkeness, or were otherwise showing signs of having undergone stress. 3.4 According to the report by JKL Associates, the area in the vicinity of the appellant's buildings furthermore revealed structural, foundational problems owing to the existence of collapsible earth in the nature of altered aeolian soils and poor or complete lack of storm water drains in the area, possibly .accounting for water ingress beneath foundations with the resultant weakened foundation soil structure, leading to collapse and hence the cracks. 3 .. 5 Mulongoti J (as she then wasl tried the matte r in the High JJ7 Court. Having assessed the evidence deployed before her, and hearing in mind the issues as defined by the pleadings, conc[uded in a judgment covere d in 74 folios , that the appeUant's 1(then plaintiff's) claim must faiL She dismissed it accordingly. 3 .6 The rea son ·for her decision was summed up in the peroration of her judgment where the learned judge pertinently remarked as foUows: On the totalit;y of tlhe evidence,, I find that the plaintiff has failed to prove ii.ts claims.. Let me also state that I ac,cept the defendant's submissions that the :plaintiff :needed to plead negligence and :S)Pecial damages ispec:ifically and to set ont the )Pa1rti<culajrs" In the net Jr,eisult, JI find that the plaintiff has failed to p.rove its case to the :req\u.ired stand.aJrd. I accordingly dismiss it .. 3. 7 It is this decision of the lower court judge that has so beleaguered the appeUant that it has now taken up the cudgels on appeal to us,. 4 .. 0 The g.rounds of a ,ppeal J8 4. 1 Before us, the lower court judgment is being assailed on eight grounds tormulated as follows: 1. Tb<e learned tr.ial judg1e e.rred in law a·nd in fact when she found, contrary t ,o the ov,erwhelming evidence on record, that the appellant failed to pr,ove that the r,espondent's mining activities, including blasting, c .racked the appellant's buildings in March, 2008 .. 2.. 'The learned trial judge ,e.ued in law and in fact when she opined that if the appellant''s guard house withstood the defendant's blasting and minin.g activities, m •o.st likely the main offices did so too and co.nsequ·ently when she held on a balance of probabilities that the appellant's buildings were already cracked at the tim,e. 3. The learned trial judge misdirected herself when she attributed cracking of the appellant's buildings to aging. 4 . The learned trial jud.ge fell into error when she held, in the abs·ence of any evid·ence to support her holding, that the guard house which was nearer the charge point would not have survived the blastin:g by the respondent and when she consequently held that this clearly proved that the cracks to the appellant's buildings wer,e already the.r,e at the time of mining activities. 5. ·The learned trial jud,ge ,erred in law and in fact when, despite finding that blasting activities could lead to damage to the appellant's 'buildin.g and :notwithstanding the evidence to that effect that was before he:r, she failed to consider the impact of J'9 the ''egg-shell-s:koll'' principle of the law of tort on the matt,ers in issu,e bef:o.re her. 6 . The learned trial judge misdirect,ed herself when sbe failed to consid,er the overwhelming ,evidenc,e hefo.re her which shows that the mining and blasting activities c ,onducted by the respondent had a detrimental and damaging erfeict on the appellanf's buildings. 7. 'The l,earned trial judge misdirected herself when she failed to distinguish between mining and blasting activity that ,occurre,d within a distance of 40 meters of tbe app,ellant's buildi:n,gs and that which occurred outside that distanc,e and when she consequently failed to consider the detrimental and damaging of suc:h mining and blasting activities effect on the app,ella-nt's buildings [sic!]. 8 . The liearn,ed trial judge misdirec·ted herself in law and in fact w.hen s:he co.nsequently held that the a :ppellant had failed to prove its case to the :r,e ,quired standard and when she dismissed tbe ap·pell:a:nt':s ,claim with costs. 4.2 There was, of course, no cross appeal filed by the respondent. 5.0 The appellant's argum,ents in support of the appeal 5.1 In sup port o f the foregoing grounds of appeal, fairly copious heads of argument ·were fiUed. Mr. Sianondo, learned counsel for th e appellant, int imated at the hearing of the appeal t hat he chiefly relied on those heads of argument, which he reinforced and supplemented orally. JlO 5.2 The filed heads of argument were divided and argued under two clusters as follows: cluster one comprising three grounds, namely, grounds two, three and four; and cluster two made up of five grounds, that is to say, grounds one, five, six, seven and eight. 5.3 In respect of grounds two, three and four, it was submitted that these grounds center on the broad question whether or not the appellant's buildings on the property were already cracked at the time mining operations were commenced by the respondent in Area E. 5 .4 Counsel argued that the learned judge in the court below had misdirected herself in holding, as she did, that they were already cracked at the time mining operations commenced. While admitting that the appeal premised on the grounds in cluster one largely sought to assail findings of fact, the learned counsel for the appellant contended that the challenge of those findings of fact could properly be situated within the exceptions to the rule so clearly enunciated in authorities such as Nkata and 4 Others v. Attorney GeneralOJ. J11 That rule is simply that as a court that did not have the advantage to listen to the witnesses testifying in the trial court and to assess their demenour, an appellate court is ill posi tioned to disturb findings of fact by a trial court . . S.5 The learned counsel was not unmindful that this rule admits of limited exceptions principally where the findings are perverse or not borne out of the evidence adduced, or the findings are so blatant in their defiance of logic that a reasonable tribunal, properly directing itself cannot arrive at the conclusions those finding carry or imply. 5 .6 In developing his argument further, counsel expressed discomfort with the questions which the learned judge had posed for herself as being determinative of the issue in dispute. These were whether the cracks to the appellant's buildings were as a result of blasting and mining activities; whether the respondent had complied with m1n1ng regulations and other requirements such as those set out in the Environmental Impact Statement (EIS) before embarking on the .mining and blasting activities; whether the appellant's J12 buildings on tihe property were cracked at the time t he property wa.s purchased Jfirom Zambia Consolidated Copper Mines Limited lZCCM') in 2000; and finally whether the appemant had provided sufficient evidence before the court to show 'that the ~espondent's activities crac~ed its building. 5. 7 These questions, according to counsel for the appellant, enrcom passed issues not raised in the pleadings but introduced merely through the tendered evidence. Counsel singled out the question of the buildings having already been in a c.radked state at the time of the appellant's purchase from ZCCM of the property in 2000, as having arisen in the evidence of DW3, M:illliington Mambwe, the admission of which evidence counse[ :for the appellant had objected to, but that 1lhe objection was overruled flippantly by the trial judge. 5.8 T.ihe learned counsel observed that in overruling his objection t<o the admission of D 'W3's evidence, the learned judge below found comfort in the phraseology employed in paragraph 9 of the Defrence to ft:he effect that: J13 Cleady even before the Defendant commenced minin:g operations in Area E, the Plaintiff's huildin:gs were already in a state from a combination of external factors and not as a r,esult of minin:g or blasting activities by the Defendant as those had not yet even be:gan. 5.9 In counsel's estimation, the court was wrong t o take the view that it took because the burden of proving the assertion as regards the state of the buildings at the time of the purchase of the property from ZCCM lay with the respondent. No evidence having been presented in support of the claim as regards the state of the buildings at the time of purchase that burden had not, according to the counsel been discharged. 5.10 Counsel submitted that the lower court judge adopted a very unceremonious approach in dealing with the maJor issue relating to the state of the buildings be£ore the commencement of blasting and mining activities in t heir immediate vicinity. This, according to counsel, contradicted the attitude recommended by this court as articulated in t he case of Antonio VentrigUa and Manuela Ventriglia v. Eastern and Sou them African Trade and Development Bankf2J. 5.11 Counsel for the appellant contended that in reaching the . J14 conclusion that the appellant's buildings were already cracked at the material time, the lower court judge relied heavily on the evidence of DW3 ·without explaining why she preforred that evidence to all t he other contradictory evidence adduced on the is sue. The judge did not, in counsel's submission, even consider some parts of DW3's evidence pertinent to the issue. This consequently explains why she fell into error and thus brought her findings of fact within the purview of the exception to the rule against interference by an appellate court with factual findings of a trial court as set out in the NkataOJ case. 5 . 12 The learned counsel further submitted that an examination of the evidence given by DW3 shows that the witness, as regards prior damage to the buildings, testified in respect of one building only that was originally built by ZCCM. That witness also testified t hat there was a completely new office block which was built parallel to the old one. The witness made no mention that the new building ever suffered cracks JlS or other damage during the period of his employment. The short point counsel made was that there was no evidence on record to support the lower court's finding to the eftect that all the appellant's buildings were already cracked at the time they were purchased from ZCCM in the year 2000. The learned judge should thus never have .made a global finding based on evidence that was not laid b efore her. 5.13 It was counsel's further submission that the lower court judge ignored the evidence of PW 1 as it related to the s t ate of the buildings at the date of the purchase of the property by the appellant. Refer ring us t o the case of Justin Chansa v. Lusaka City Council(3J, counsel submitted that as that case guided we should in these circumstances, interfere with the find ings of fact in the present case. 5.14 Counsel for the appellant also attr ibut ed misdirection to the lower court judge for expressing, in her judgment, the opinion t h at given that the wall fence .and the guard house - which were nearer to the respondent's area where mining activities were taking place - were not cracked or damaged, J16 considering also that the guard house withstood the mining and blasting activities, the other buildings must have been already cracked at the time. 5.15 In counsel's submission, the judge's op1n1on was not only without a factual basis; it contradicted the evidence of PWl t hat t he wall fence was intact because it had been rebuilt three or four times. Counsel also submitted that there was a scientific explanation given by PW3 as to why the wall fence had no cracks. The lower court judge ignored all this without any explanation. 5.16 To buttress the submission at paragraph 5.14, the learned counsel for the appellant cited the case of Wesley Mulungushi v. Catherine Bwale Mizi Chombaf4J where we stated, inter alia, as 'follows: Our concern is: where did the learned judge get the evidence that the respondent did not own the property in the absence of her own testimony? Since we have not come across any evi,dence by the r ,espondent that she did not own the property, we can safoly say tbe learned judge seriously misdirected himself by takin:g into c ,onside:ration evidence that was not befor,e him. H7 Drawing an analogy between this case and our sentiments in the Wesley Mu1ungush:iJ4J case, counsel submitted that there was a sound )legal basis upon ·whlch t he lower court judge in this matter should have her findings of fact reversed . 5. 1 7 The appellant's counsel then went on a different trajec tory with a v.iew to persuading us to accept that the appellant's buildings were not cr acked or sunken pnor to co:mmencement of the aUeged blasting and mining activities by the respondent. 5.18 Counsel sulbmiit'lted that the Evidence Act., chapter 43 of the Laws of Zam.lbia and t he lbest evidence rule, enjoined the court to accept the evidence of the witnesses who were best place cl ·to olbserve the matters in issue in this case, that is to say, wlhether or not t he !buildings 'Were cracked and damaged prior to commencement by the respondent of blasting activity; that D'W3 testified as to what he observed in 1998 including the fact that the buildings had undergone renovation. J18 5. l 9 DW3's testimony was confined to part of the property - not all the buildings. On the contrary PWl gave not only a more current account of the state of the buildings; he also testified on the state of the buildings at the time of the purchase of the property from ZCCM .. 5.20 It was also cont,ended that the respondent was in breach of the duty to conduct a baseline survey before undertaking any blasting activity; that it only did the said baseline study in November 2008, after blasting activity had already began. 5 .21 Counsel further submitted (in the alternative) that other than PWl 's testimony that the buildings were 100°/o intact when they were bought from ZCCM, neither party adduced evidence .as to the state of the buildings before the commencement of the mining and blasting activities. It should thus have £allowed, having regard to the burden of proof, that the issue was not proved. As it turned out the court below contradicted itself when it held that none of the parties had adduced evidence as to the state of the buildings before the commencement of the blasting and mining J1'9 activities. We were urged to uphold the appeal in respect of grounds two, three and four. 5. 22 The arguments in respect of .grounds one, five, six, seven and eight of the appeal were principally focused on impugning the 10,wer court's assessment of the evidence before it as it relates to the effect on the buildings of the blasting activities near the property. 5"23 The learned counsel for the appellant quoted extensively from the judgment of the lower court before submitting that the court had, before her, aU the material necessary to reach a decision that was consistent with what counsel considered as the correct findings contrary to what she made - findings that should have confirmed that the blasting activities undert~en by the respondent caused damage to the appellant's buildings. 5 . .24 In specific terms, the learned counsel for the appellant called our attention to the observations which the court below recorded in its judgment to the effrect that the EIS conditions were to be met before mining operations commenced - J20 including a baseline study to assess buildings at the property and those of neighbouring third parties before any mining and blasting activity was done and for settlements such as buildings to be protected from blasting effects. 5.25 We were also invited to consider the finding of the lower court that the appellant had not been given notification before mining activities began, and more pertinently that the respondent engaged in mining activities in Area E within 40 meters of the appeHant's buildings contrary to the applicable regulations. Also, that the respondent engaged in mining and b lasting sometime in June or November, 2008 and not in March, 2009. 5 .26 The learned counsel for the appellant also grumbled that the learned lower court judge did not reveal her mind as to whether she was inclined to reject evidence to the effect that vibration from mining operations would cause damage to surrounding structures .. 5.27 According to counsel !for the appellant, the lower court judge J21 rejected the evidence of PWl to the effect that mining operations began in March, 2008 but found as a fact t hat mining and b lasting began by . June 2008. Having so found, the learned judge did not specifically address her mind to the full import of that finding, and thereby misdirected herself. She also wrongly ref erred to a document which reflected the dates of blasting as being from March 2009 to July 2010., contrary to her other finding of fact. 5 .. 28 Counsel also observed that the learned trial judge had .made two contradictory findings of fact: first that mining and blasting activities were undertaken within 40 meters of the buildings and later that blasting took place at a distance of 100 meters or more.. These findings, according to counsel, were erroneous and amenable to reversal on appeal. 5.29 The appellant's learned counsel next argue d the point about the burden of proof. According to him it was the respondent which, in its defence, had averred that as at the date of the geotechnical and structural assessment in November 2008., J2.2 mining and blasting activity 1n Area E had not yet co.mmenced.. In these circumstances, all the appellant needed to do to discharge its own burden was to show that contrary to the respondent's claim, mining and blasting activities began prior to the undertaking of the geotechnical and structural assessment and not, as wrongly determined by the lower court, to demonstrate that it began in March 2008. 5.30 Counsel submitted that compliance with the conditions imposed under the EIS and by the Director of Mines and Safety were intended to ensure that mining was undertaken safely.. The evidence before the court showed that the respondent was in breach of those conditions by commencing mining and blasting in June 2008. Exemption was only granted in October 2 008, some good four months after the blasting and mining had commenced. 5.31 The learned counsel dispeUed the lower court judge's conclusion that the buildings could have succumbed due to aging, submitting that this was contrary to the evidence on J23 record which confirmed the violent effect of blasting activities admitted by the respondent and as testified to by PW 4. 5.32 Counsel submitted that at the very least, the court ought to have applied the egg-shell-skull principle in considering the appellant's claim even if it, like negligence, was not expressly pleaded. It ·was nonetheless clear that what the appellant sought is relief for a tort ious act committed by the respondent in breach of its duty not to cause harm to the appellant's buildings. 5.33 The justice of the case, submit ted the learned counsel, demanded that the lower court judge looked beyond nuances of the words 'negHgence' and 'egg-shell-skull' whether or not they were expr essly used in t he pleadings. Counsel prayed that we u phold the appeal on grounds one, five, six, seven and eight as well. 5.34 In his oral augmentation, Mr .. Sianondo rehashed and r eiterated the written argume n t s . He fervidly prayed that we uphold the wh o le appeal. J24 ,6.0 The responde:nt's arguments a;gainst the appeal 6 .1 The respondent's learned counsel stoutly opposed the appeal and in response to the appellant's heads of argument, filed opposing heads of argument. It is those heads of argument that Mr. Gondwe., learned counsel for the respondent, adopted and orally supplemented them at the hearing of the appeal. 6.2 In responding to grounds two, three and four of the appeal, it was submitted on behalf of the respondent that the appeal premised on those grounds should fail as those grounds challenged findings of fact by the lower court. He relied for that submission on the case of Communications Authority v. Vodaco.m Zambia Ltd.(SJ where it was held that an appellate court will not reverse findings of fact unless certain exceptional conditions exist. 6.3 The learned counsel for the respondent contended that on the basis of the submissions he had made at paragraph 6.2, this court :should not reverse the lower court's findings as the appellant had clearly :failed to bring their case and the J25 findings of the court ·within the permissible exceptions to the rule against inte rference by an appellate court with findings of fact by a trial court. 6.4 The alternative submission of counsel was that the lower court judge was right to hold that, on a balance of probabilities, the appellant's buildings were already cracked at the time of any blasting activities undertaken by the respondent as testified by D 'W3 . 6. 5 The learned counsel suggested that there was a contradiction between the pleadings of the appellant and the evidence adduced before the lower court in that in the statement of claim, the appeUant averred that in or about September 2008, the respondent engaged JKL Associates to undertake a geotechnical and structural assessment involving underground blasting activities. In the further and better particulars furnished by the appellant at the request of t he respondent, the former alleged that th e blasting activities s t arted in or about September or early November, 2008. 6.6 PW l's testimony, on the other hand, was that · he had J26 information that the heavy explosions occurred in March 2008. Additionally, while the pleadings refer to . J KL and Associates as having undertaken the blasting activities, the evidence tendered was that it was th e resp ondent that did. A JKL and Associates' representative, DW2 denied in his evidence that h e ever used explosives for t he geotechnical assessment. 6. 7 In the face of t hese contradictions, the learned judge in the court below was, according to counsel, correct to m~e t h e assessment she made to come to the conclusion that she did. Counsel reiterated that on the evidence, it was a legitimate conclusion she .arrived at that the appellant's buildings were already cracked and/ or damaged at the time t hat any b las ting activities could have started. 6 .8 The lea rne d counsel for the respondent referred us to the testimony of DWI to the effect that JKL and Associates were engaged to do a s truct ural baseline survey, which is so called b ecause it is done betore th e project starts. This evidence, Jll1 submitted tlhe .learned counsel, 11s corroborated by that of DW2 to the effect that his firm was engaged by the respondent to do the baseline survey before the commencement of the project. This was in October 2008 and work was concluded in November 2008 with the report being submitted in December '2008. 6. 9 The testimony of this witness wa:s that at the time of undertaking the survey the appe11an t's buildings were already cracked and that these structures had in the past expericenced stress and were at so:me stage underpinned. 6.10 According to counsel tor the respondent, the evidence of DW2 was reinf<orced by that of DW3 who testified that the buildings, which had originally been owned by ZCCM, his previous employer, were cracked and had suffered structural :failures which was noticed as early as 1990. At that time, according to that witness, it was noticed that the buildings' foundations were sinking. J:28 6. l l The learned counsel also placed much reliance on other parts of the testimony by DW3 to buttress his submission that the lower court judge was right in her conclusion. According to counsel the submission by the appellant that the baseline survey was undertaken after the mining activity had commenced in Area E, was at best a misrepresentation of the evidence given in court and at worst mischievous. 6 . 12 The learned counsel then dealt with another evidentiary issue, namely the exemption the respondent had sought from a mining regulation which required mining activities to be carried out outside a 40 .meters radius. He pointed to a letter in the record of appeal showing that exemption was only granted after the 14th October 2008, meaning that blasting activities, if any, could only lawfully have commenced after that date. 6.13 According to counsel, this was corroborated by the seismograph reading in the vibration monitoring report which showed all t he readings of each blasting activity. The report indicated that t he first reading was recorded on 14th J29 March 2009. The conclusion to be drawn from all this is that the baseline report was done before the blasting commenced in March 2009. 6.14 Counsel £or the respondent then set out the possible causes of the cracks to the appellant's buildings as set out in the baseline report to include the construction of the appellant's buildings on a conventional strip foundation; poor construction of the buildings; extensions to the buildings; and the presence of collapsible aeolian soils. He also pointed to previous attempts to underpin the structures and grouting as testified to by PW4, DW2 and DW3. 6. 15 It was also contended that the reason other structures within the vicinity of the appellant did not suffer any stress was because they were robustly built on piles and were designed to withstand differential settlement, if it were to occur. 6.16 As regards the appellant's argument that the learned judge below held without any legal or factual basis that the guard house and wall fence were intact, counsel for the respondent referred us to the evidence of PW3 where the witness . BO conceded that he had noticed that the perimeter wall did not have cracks. He also .[,eierred us to the witness"' concession that the w:al1 fence was doser to the respondent's open pit than w,ere the offices,. The witness is also irecorded to have testified that the gate part oif the w,all fence, 'where the guard house sits, was unaffected though it was closer to the open pit. According to counsel, it was on the !basis of aU this that the court made a finding and in the process expressed an opinion on the matter. 6.17 Turning to grou'[llds one, five,, six, seven and ceight, the [earned counsel for the respondent divided the arguments under separate argument points of .response as follows: 6 .1 7. 1 It was con tended that the im p.[,ession c.reated by the appellant that h[asting activities in Area E was within 40 meters oif the appellant's bui[dings, was total[y false. The letter \by the respondren t appllyin;g for an exemption to conduct mlill.llg activities within prescribed limits stated that tlh.e appellant's buildings were within 40 meters oif the Pit Limit - essrentiaUy J31 informing the Department of Mines Safety that the limit of the pit were within 40 meters and not that blasting would be carried out within the said 40-meter limit. 6. 17..2 Counsel also pointed out that from the report by African Explosives Limited (AEL) it was evident that blasting was conducted at more than 100 meters from the appellant's property. The different distances recorded in the report show that the blasts were only being conduct ed at over 100 meters. Counsel posited that the lower court had thus revealed its mind to the evidence b e£ore it . There was therefore no misdirection as alleged. 6 .. 1 7. 3 The respondent's learned counsel also dispelled the argument that it was incumbent upon the respondent to show when m1n1ng activities began. Counsel contended that it was wrong for the appellant to attemp t to shift the burden of proof on to the respondent. The case of Khalid Mohame d v. Attorney J32 Genera[(6J was cited to buttress the point that a party who makes a claim must prove it in order to succeed. Counsel reiterated that mining activities only began in March, 2009 and not in March, 2 0 08 as alleged by the appellant. 6.17.4 Counsel finally contended that the egg-sheU-skuH principle, which the appellant had invoked in its argument, was not available as it was not part of the appellant's case in the lower court. The appeHant neither pleaded nor proved negligence either. The egg shell-skuH principle t hus had, according to counsel, no application whatsoever to the present dispute . 6.18 Like his learned counterpart for the appeUant, Mr. Gondwe in his oral augmentation, rehashed while reiterating the h eads of argument. 6.19 Counsel e nded by praying that we dismiss the whole appeal for lacking merit . . Jl33 7.0 Consideration of the arguments of the parties and the dee ision ·of th,e cou:rt .. 7 .1 Upon careful consideration of th:e issues raised in this appeal, ilt is clear to us that tlh.e appeal either challenges the lower court's findings of fact or disputes the lower court's assessment of the evidence. 7. 2 All the grounds of appeal assign e:irror to the lower court judge in its asses.sment of the evidence deployed before :it and in coming up wiili findings off acrt :following such assessment. 7.3 Yet the law is fairly setUed that an appellate court should not ordinarily disturb or tamper with the trial court's findings of fact especially iJf those findings and conclusions reached are supported by c redible 1evidence. This rule of thumb is premised on the fact that the trial judge had the opportunity to hear the witnesses testify and to assess their demeanor. 7. 4 This count has consistently explained in numerous case authorities that as an appellate court we are loath to interfere with a trial court's findings of !fact save in very limited circumstances" In the case of Nka.ta and 4 Others v. Attorney J34 GeneralflJ, which was referred to by counsel for t h e appellant, we guided that: A trial judge sittin,g alone wit:hout a jury can only be reversed on questions ,of fact in 1(i) 1the judge erred in accepting evidence, or (ii) the judge erred in aS&essing and evaluating the evidence taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (iii) the judge did n,ot take proper advantage of having seen and heard the witnesses, (iv) external evidence demonstrated that the judg,e erred in assessing the manner and demea·nor of t'be witnesses. 7.5 Similar sentiments were s trongly carried in cases such as Wilson . Masauso . Zulu v. Avondale H ousing Project Ltdf7J (1982) and reiterated in others such as Zambia Revenue Authority v. Dorothy Mwanza & OthersfBJ, Simwanza Namposya v. Zambia State Insurance Corporation Ltdf9J and Examinations Council of Za,mbia v. R eliance Technologyr10J. 7 .6 Much as Mr. Sianondo ably addressed us on the perceived mer its of t his appeal by way of elucidation and elaboration on the grounds of appeal, complete with authorities, and his learned counterpart :(Mr. Gondwe) also addressed us on the respondent's opposition to the appeal, all their efforts were J35 coloured and subject to our finding on whether the appeal raises any points of law. 7.7 While the point is conceded that facts are the fountain head of law and that often one can hardly separate law from its factual .milieu, the dichotomy between law and fact in a ground of appeal must ,always be borne in mind. And so, we ask the question whether indeed the grounds of appeal in the present case are solely based on findings of fact by the lower court. 7.8 In order to sucoeed, a party calling upon an appellate court to reverse findings of fact of a trial court must demonstrate that the court below made findings of fact which were - to use the common language employed in this connection - perverse, or in the absence of relevant evidence, or upon a misapprehension of facts, or that on a proper view of the evidence, no trial court acting correctly could reasonably make .. 7 .9 Mr. Sianondo was in general agreement that the ficst duster . B6 of grounds, that is to say,, grounds two, three and four srnught to challenge findings of tact. His argument wa,s, however, that those .findings could properly be located in the permissible crrcumstances foe interfer,enoe as set out in t he NkataOJ case and others. . Mr. Sianondo part icuJlarly complained about the court's heavy cehan ce on part only of the evidence of DW3 as regards prio r damage to the buildings. [n doing so., the judge., according to counsel, ignored the evid,ence of PWl as it related to t he state of the building at the time the property was purchased. 7 .10 The gamut and premise of Mr. Sianon.rlo ))s suJbmission as far as we understand it, is that the court below made a poor job of assessing the evidence be[oce it; that in some instances the evidence befoce the court contradicted each other and yet the court pref er red some and not the other v1ersions of tthe evidence availed to it. 7. 11 The duty of appraising the evidence given at a trial is pre J37 eminently that of the trial court which saw and heard the witnesses . Th at responsibility does not lie with an appellate court. In Atto.mey Gene,~al v. Kakomao 1J, we stated that: [a] (court is entitled to m ake findings of fact where the parties a,dvance directly conflicting stories and the court must make t bose findings on the evidence before it having seen and heard t he witnesses :giving that e·vide nce. 7 .12 Our view is that the learned counsel 1s faulting th e lower court on t h e basis of its uwn assessment of the evidence by the witnesses who testified bef:ore it. To t h at extent counsel's efforts are unavailing. 7. 13 Mr. S.ianondo also took issue with the questions that th e learned judge posed as constituting the crux of the dispute between the parties. We have set out those questions at paragraph 5.6 of this judgment. The learned counsel's grievance was that the issues raised touched on matters that were not raised in the pleadings but arose only in the evidence, especially that of DW3. 7. 14 Our consid er ed view is that the real issue for determination J38 in this matter was whether or not it was the activities of the respon dent that caused the damage to th e appellant's buildings located at the p roperty.. In order to address this overarching question, the t rial judge was entitled to raise such subsidiary questions around that key issue as would assist the court address it. The saying that there are m any ways to skin a cat wou ld in t he pr esent circumstances translate into the fact that there is .more t han one way of reaching the desired conclusion. In the present case that conclusion resides in answering the overarching issue for determination. We th us think the appellant's argument in t his regard is bootless. 7. 15 In assessing the evidence of the appellant with regard to the cause of the cracks to the appellant's buildings and r oughly when, in the chronology of events that occurred, the learned lower court judge observed a t J63 as follows: . I :note als·o the contradictions in the plaintiff's witnesses as tco when the mining, including blasting . activities started. Whereas, PWI t ,estified it was in march 2008, in its statement of cfaim the plaintiff alleged that mining and blasting :activities I J3:9 began in Sept,einbe:r 2008. PW4 stated that the plaintiff told him that tbe defendant started m .ining in April 2008. 7. 16 The contradictions pointed out by the court as specified above were by n o means the only ones. Elsewhere in her judgment (J69) the learned judge observed that: PW3 further testified in cross-,examination that blasting permission was gra.nted in Octo'ber 2008. This n ,ot only contradicts his own 1testimony in chief but that ,of PWl as well. 7. 1 7 Taken in the round we are of the considered view that the lower court judge did record her reasons for preferring the evidence of DW3, wh o was not only a former employee of ZCCM from whom the buildings were purchased, but was also in the . Management Buy Out Team that had initially purchased the property. That witness testified that at the time of the sale of the property the buildings were damaged and already had cracks. This Ied the court to conclude as follows :(at J 72~: I thus am inclined to find, on a balanc·e ,of probabilities that the buildings were already cracked at the tim,e as testified by D'W3. And that the crac:ks could be due to a,ging as stated by PW3 and PW4 who attributed tbe cause to other causes apart fr.om blasti:ng just like the ·defendant' s witness:, DW2. J40 7.18 In our estimation, the trial judge did subject the evidence which was laid before her to a proper quantitative and qualitative assessment and arrived at proper findings of fact and conclusions. The appellant has not demonstrated sufficient reason to justify the impugning of those findings. ·we accordingly find no merit in grounds two, three and four of the appeal and dismiss them accordingly. 7. l 9 Turning to grounds one, five., six, seven and eight of the appeal, the grievance of the appellant which is not very diffierent from that in respect of the other cluster of grounds , is that the conclusions of the court were contrary to the evidence adduced before it. We have already stated that the lower court properly discharged her responsibility of asse ssing the evidence to come to the conclusion that she did .. 7.20 In regard specifically to the argument that the respondent had not give n notification before the mining activities b egan and that those activities ·were done within 40 meters of the appellant's buildings, we c an do no, better than quote a J41 whole passage from the judgment of the lower court to show the exact finding of the court on these issues. At J67 the court stated t hus: :1 am also inclined to find th:at the defendant did engage in mini:n:g activities in area 'E where the plaintiff's buildings are situat,ed within 40 meters of the pit. The experts (both plaintiff and defendant's witnesses) especially PW3 and DWl testified that mining activities were t ,o be conducted at least 150 to 200 meters away from third party's building. The evidence is clear that the defendant obtained clea·rance from ECZ and mining safety ,departme.nt in order to engage in mining blasting. The defendant was e·ven exempt,ed from mining regulation 602 as testified by DWl and to an extent DW3 ... The defendant thus engaged in mi:ning and blasting sometime in July or November 2008 and March 2009 as testified by its witnesses. 7 .. 21 The statement sets out the court's finding unambiguously. Our view is that the appellant's complaint is without basis. 7.22 We must also state that we find the criticism of the judge below for expressing an opinion in her judgment regarding the possibly more robust structural position of the guard house relative to other buildings on the property, rather unwarranted. In the course of determining disputes, judges • • J42 do indeed have the liberty to express opinions and views over many issues. Many such opinions may be entirely harmless comments made in passing and should not normally be a basis for a grievance in an appeal unless they are inextricably related to the overall decision. 7.23 In the present case, the issue was whether the mm1n.g activities of the respondent caused the damage to the appellant's buildings and not whether damaged buildings were weaker than the guard house. 7.24 We perceive the appeUant's grievance under the second cluster of grounds of appeal as being purely evidentiary. The appellant claims that it adduced sufficient evidence to prove its claim. The court, however, held in the passage we have reproduced at paragraph 3.6 of this judgment that the appellant failed to adduce sufficient evidence to discharge its onus. 7 .25 Our view 1s that the lower court directed itself to all the evidence bearing on the key issues to be det,ermin ed in this l • case" Consequently,, we fi.nd no ,merit in the second segment of the grounds of appeal either . 8 Co:nclusion 8 .1 The net .resuU is that the ·whole appeal collapses and is dismissed with costs to the respondent to be taxed in default of agreement. ~ I._,~ ~ ------ __..-··.;'· ...... ., .... _.. '• ... .. ·>-~ ~ ... t~~<:;: •••••••• --1\1:. :Mallila SUPREMECOWRTJUDGE ~ ·········~···-············ ··· C. Kajimru11ga SUPREME COURT JUDGE J. K. Kabuka SUPREME COllJRT JUDGE