County Tradecom and Infra Limited v Margaret Saili (T/A Chimas Trading Enterprises ) (Appeal 246 of 2024) [2025] ZMCA 134 (16 November 2025)

IN THE COURT OF APPEAL OF LUS Appeal 246 of 2024 HOLDEN AT NDOLA (Civil Jurisdiction) BETW EEN: 1 6 t::v 2025 REGISTRY 2 COUNTY TRADECOM AND INFRA LIMITED APPELLANT AND MARGARET BWALYA SAILI RESPONDENT (T/A CH/MAS TRADING ENTERPRISES ) CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 11th & 18th November 2025 For t he Ap pellant : Mr. C. Sianondo Messrs. Malambo & Company Fo r t he Re spond ent: Mr. M . Muban ga M essrs. Chilupe & Company JUDGMENT Patel, JA, delivered the Judgment of the Court l 6 t ::,·,J 2025 Jl Cases referred to: 1. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 172 2. Khalid Mohamed v. The Attorney General (1982) ZR 49 3. Andrew Chibeka v Edah Sikombe - Appeal No. 158 of 2013 4. The Minister Of Home Affairs, The Attorney General vs Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Centre For The Constructive Resolution Of Disputes) SCZ Judgment No 23 Of 2007. 5. Barton v Morris and another in place of Gwyn-J ones (deceased) [2023 ] UKSC 6. Philip Mhango v Dorothy Ngulube & Others (1983} ZR 61 7. Finance Bank Zambia Limited & Other v Simata Simata - Selected Judgment No.21 of 2017 J2 1.0 INTRODUCTION 1.1 This appeal a rises from a judgment of the High Court delivered by Honourable Mr. Justice E. Musona on 24th June 2024, in an action commenced by the Respondent aga in st the Appellant for breach of var ious ora l agreements for the delivery of goods agreed between the Parties . The learned trial Judge entered judgment in favour of the Respondent, whic h decision forms the subject of this appeal. 1.2 At the heart of this appeal lies the question of what occurs when Parties transact without a written agreement. The dangers of such unwritten contracts are manifest in the evidentiary difficulties they pose and the uncerta inty they create in resolving disputes through the Courts. 1.3 The issues in this appeal also center around findings of fact made by the lower Court and the principle of limited inte rference by the Appellate Courts. 1.4 The Record of Appeal is presented in two volumes and reference to page numbers sha ll refer to the Record of Appeal unless otherwise noted. 1.5 The Parti es shall be referred to as they appear in this Court. 2.0 BACKGROUND 2.1 The Respondent (Pla intiff below) commenced an action against the Appellant (Defendant below) in the High Court by way of Writ of Summons and Statement of Claim, which was subsequently amended and filed on 16th May 2022, seeking the fo llowing reliefs: J3 1. Payment for the sum of K23, 192, 984. 60 being the balance unpaid fo r soya beans delivered; 11. Payment of the sum of K262,800. 00 being the total sum due for transportation of soya beans; 111. Payment of the sum of K52,500. 00 being the total due for transportation of eggs; 1v. Payment of the sum of K193, 000.00 being costs for the repair of the Appellant's Toyota Hilux; v. Payment of 14% commission on cosmetics imported by the Appellant at the value of USD$84, 321.00; vi. Payment of the sum of K60, 000.00 refund for the tax paid by the Respondent to Zambia Revenue Authority (ZRA) on the cosmetics imported thus far; v11. Interest on the amount found due and payable; viii. Costs of and incidental to the proceedings; ix. Any other relief the court may deem fit. 2.2 According to the Statement of Claim, on or about 31 st May 2021, the Appellant and Respondent entered into a series of oral business transactions on various dates, which agreements included the trading of soya beans, provisions of transportation services, importation of cosmetics and the marketing and selling of the Appellant' s organic fertilizer. 2.3 The Amended Writ of Summons and Statement of Claim is noted from pages 22 to 28 of the Record. J4 2.4 On 18th May 2022, the Appellant, with leave of Court, filed its Amended Defence and Counter Claim challenging the Respondent's obligations of the oral business transactions as agreed between the Parties. According to the Appellant, the relations between the Parties took a turn for the worst wh ich led to both Parties raising claims and counterclaims. In its counter-claim, the Appellant sought the following reliefs: a. Damages for breach of contract; b. Refund of the sum of K12, 936, 119.00 c. Interest from when the amount was paid to the Respondent (Plaintiff) d. Any other relief the Court may deem just e. Costs. 2.5 In view of the foregoing, the Appellant contends that it has suffered loss and damage arising from the Respondent's failure and neglect to perform its obligations under the agreement. This grievance now forms the subject of th is appeal. 3.0 DECISION OF THE LOWER COURT 3.1 The learned trial Judge considered the Respondent's action and reliefs sought before him. With regard to relief (i) of the Statement of Claim, he noted that in the evidence of both parties that the Respondent did not always issue delivery notes for deliveries made, and this made it difficult to ascertain how many trips were actually made. JS 3.2 The lea rned trial Judge counted all the Weigh Bridge Tickets on record (wh ich the Respondent relied on to reflect payment s made for delive red soya beans), and noted that they were less than the total number indicated in the witness statement of the Respondent. Havi ng found no evidence to establish entitlement to the amount of K23, 192,984.60, the learned trial Judge dismisse d th e Respondent's claim for not having been substantiated. 3.3 With respect to relief (ii), being the transportation costs incurred in the delivery of soya beans by the Respondent to the Appellant, the learned trial Judge noted that there was no dispute as to whether th e soya beans we re delivered but th e dispute centred on who betwee n the Respo ndent and Appellant, should pay the costs of transportation . The learned trial Judge reviewed the Parties' bund le of documents and was of the considered view that there was evidence that the Appellant was to pay for the delivery trips. He noted that the Appellant's Ma nager signed t he sa id pages and that the arguments rais ed by th e Appellant cha llenging the signatu re wa s a mere afterthought and found merit in the Respondent's claim. 3.4 With regard to relief (iii), the learned trial Judge was of the considered view that there was no proof to show that the Ap pellant was supposed to pay the Respondent for transportation costs of the eggs and dismissed the Respondent's claim. 3.5 In addressing rel ief (iv) the learned trial Jud ge was satisfied with th e evidence before him in support of the Respondent's claim for the sum of K193, 000.00 for repair costs of th e Appellant's Toyota Hilu x Vehicle and noted that th e Appellant did not ch allenge this evidence at trial. He found t hat the J6 Respondent proved his claim and ordered that the repair costs be shared accordingly between the parties, and fu rt her ordered that the same be taxed in default of agreement. 3.6 With respect to relief (v), the learned trial Judge observed that th ere was no dispute that the Appellant had imported cosmetics using the Re spondent' s name. He was further satisfied that the Respondent had substantiated its claim that the Appellant imported the goods in its name and was entitled to a 14% commission from the proceeds of the sale of the cosmetics, which had been imported at a cost of USO 84,321.00 3.7 In addressing claim (vi), the learned tria l Judge was of the considered view that the Respondent had not produ ce d evidence to demonstrate that it had lent money to th e Appellant to enable the payment of tax, as claimed. This claim was therefore dismissed. 3.8 The learned trial Judge then turn ed to consider th e Appellant's counter-cl aim s. Upon evaluating the Appellant's evidence, he found no merit in the claims and dismissed th em accordingly. 4.0 THE APPEAL 4.1 Dissatisfied with the Judgment in the Court below, the Appellant filed its Notice and Memorandum of Appeal, on 10th July 2024, advancing five (5) grounds of appeal, as follows; 1. The Court erred both in law and fact by not; ,. Considering what constituted K12, 936,119.00 J7 11. Granting the Appellant amount which is due to the Appellant and by not implementing a set-off 2. The Court erred in law by not granting the Appellant dama ges for breach of contract. 3. The Court erred in law and in giving the sum of ZMW 262, BOO. DO without ascertaining how many trips were conducted and without considering the fact that there was no such agreement to the subsequent trips. 4. The Court erred in law and in fact in allowing the sharing of ZMW 193,000.00 and for holding that the sharing of repair costs was not contested. 5. The Court incorrectly held that the Plaintiff was entitled to 14% commission fro m the proceeds of sale. 5.0 THE APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 The Appellant fi led it s heads of argument on 6th Sept ember 2024. In essence, the Appellant contends that the learned trial Judge fai led to sufficiently demonstrate th e basis upon which his fin dings we re reac hed . It is the Appellant's submission that the Respondent breached the agreement of the Parties by failing to delive r the goods as agreed. Th e Appe lla nt fu rt her argues that there was no agreement pertain ing to transportation costs and that all expenses relating to the repair of the ve hicle in issue o ught to have been borne by the Respond en t . Lastly, the Appe llant disputes the Respondent ' s entitlement t o t he 14% commission on the proceeds of sale as awarded by the learned Judge of the lower Court. J8 5.2 These arguments have been duly considered and wholesomely appreciated. The same w ill not be recast save fo r emphasis w here appropriate. 6.0 THE RESPONDENT'S ARGUMENTS IN RESPONSE 6.1 The Respondent filed its heads of argument on 7th October 2024. These too, have been duly considered and appreciated, and w il l not be recast save for emphasis whe re appropriate. 7.0 THE HEARING 7.1 At the hearing of the appeal, Counsel Sianondo applied to amend th e Appe llant's Heads of Argument at page 3, paragraph 1.8, co rrecting the figure "156" to read " 56 ." The Court granted the application and the amendment was accordingly made. 7.2 Counsel re li ed on the two volumes of the record of appea l fi led with the Heads of Argument of 6th September 2024. He augmented Ground 1, seeking to demonstrate that the Parties had agreed on a unit price of Kll.00 per kilogram. Reference was made to pages 40 and 44 of t he Record, which showed columns indicating " 11," whic h according to him, refl ected th e agreed price. 7.3 Counsel further referred the Co urt to page 56, which showed that the price was subsequently adjusted to Kl0.70. He submitted that page 43 contained a summary of payments, ill ustrating the change in amounts. The second co lumn indicated the amou nt paid to the Respondent, exceeding K18 mi ll ion; the third J9 column reflected the quantity of soya beans delive red ; and the fou rth column demonstrated the adjustment of the unit price from Kll.00 to Kl 0 . 70. 7.4 Co unsel addit ionally drew the Court's attention to page 138 of the record, which contained a letter from t he Respondent dated 7th August 2021, indicating the Respondent's commitment to supply the rema ini ng soya beans. He argued that a Party not owing would not make such a commitment. Counsel submitted that the record contained no evidence of delivered soya beans and that, accordingly, t he lower Court erred in dismissing the Appellant' s counter-claim of K12,936,119.00 without provid ing calcu latio ns to justify the dism issa l. 7.5 On this basis, Counsel for the Appellant urged that the decision of the lower Court be reversed and t hat all grounds of appeal be allowed. 7 .6 Counsel fo r t he Respondent placed fu ll re liance on t he Heads of Response f iled on 7th October 2024. 8.0 ANALYSIS AND DECISION OF THE COURT 8.1 We have co nside red the assai led Judgment, t he authorities cited and submissions of Counsel. It is not in dispute that the Appe lla nt and the Respondent, on or about 31st May 2021, entered into an ora l agreement and that further oral agreements were subsequently concluded between the Parties on different dates. These agreements related to trading in soya beans, the provision of transportation services, motor vehicle repa irs, and the importation of cosmetics . These form the central issues in th is appeal. JlO 8.2 The key issue fo r determination in this appeal is anchored on the principle enunciated in Wilson Masauso Zulu v Avondale Housing Project Limited 1 and Khalid Mohammed v The Attorney General 2 . It is trite that in this appeal, we are ca lled to interfere with and set aside fi ndings of fact, on the principle that they are either perverse or not supported by the evidence placed before the Court. We are also called upon t o re-hash the basic principle of the burden of proof, resting on t he Plaintiff, or in this case, the Appellant, before any order or judgment is made in its favour. We must therefore determ ine w heth er, o n the evidence befo re us, t he Appellant ha s sufficient ly substantiated the claims advanced . 8.3 In addressing ground 1, it is the Appe llan t's submission that the lower Court erred both in law and fact by not cons iderin g what constituted K12, 936,119.00 and by not granting the Appe llant the said amount which is due t o the Appe llant and by not implem enting a set off. 8.4 We also note that th e Appe llant in ground 1, takes issue with the lower Court not finding in its favor on its counter-claim. It is well established tha t a counter-claim const itutes a claim in it s own right and, as such, t he counter-claimant, the Appellant in t his case, bears th e burden of proving its claims on a balance of probabilities. 8.5 In its amen ded Defence and Co unterclaim, th e Appellant averred that by 25th June 2021, it had pa id t he Respondent a total of K12,775,000.00 while the Respondent had only delivered soya bea ns valued at Kl,121,360.00. It was therefore the Appellant 's position t hat the Respondent remain ed indebted to Jll it in the sum of Kll,653,640.00 and the allegation of an upfront payment was consequently denied. 8.6 In support of the appeal, the Appel la nt raised an issue with the pricing of the soya beans. It was the Appellant's argument that the pricing of the soya beans varied during the course of their dea lings. We have had occasion to note from pages 39 to 43 of the Record, which are indicative of the fact that the soya beans were sold at Kll.00 per kg. Th is is also confirmed by PW2, the Respondent herself who states that this was the agreed price at 31st May 2021 seen at page 353 of the Record. We also acknowledge at page 43 of the Record, that on the "Buying Accounts" Statement, the unit price changed to Kl0. 70 on 23 rd June 2021 . 8.7 We have also taken note of the Weigh Bridge Tickets on Record, seen from pages 154 to 160, labe lled "Mustafa" (who is identified as DW2}, and marked "paid" on the document. Further, and at page 152 of the Record, there is a receipt dated 31st May 2021 showing that the Respondent received a down payment of K200,000.00 for two trucks of soya beans, to be collected the following day at a rate of Kl3.50 per kilogram. 8.8 It is clear to us that from 31st May 2021, and in the subsequent transactions that followed, the Record reveals evide nce of vary ing rates being applied. We therefore do not accept the Respondent's argument that there was no evidence of a change in price, as the contrary is apparent before us. Th is is clearly illustrated at pages 244 to 274 of the Record, which contain receipts reflecting different rates, convincing us that the terms of the agreement changed in the course of the dealings between the Parties. This position is J12 further supported by the statement of account filed by the Respondent in its Amended Supplementa ry Bundle of Documents at page 284 of the Record. 8.9 Having pain stakingly reviewed t he Record, we also note the letter at page 138, referred to by Counsel, is a letter from t he Res po nd ent's advocates dated 7th August 202 1, in w hich th e Respondent states th at she remains committed to comp leti ng the delivery of t he ba lance of soya beans owed to th e Appellant. What is clear to us, is tha t not all paym ents made by the Appel lant were acknowledged by the Respondent in writing. It is also apparent that where acknowledgements were made, they were inconsistent, and that delivery notes were not consistently record ed or entered in the Respondent's books to show the supply/delivery of soya beans. There is, in fact , add it ional evidence of some delivery notes issued to other companies . In view of these inco nsistencies, it becomes difficu lt if not impossible for this Court to determine with certainty t he exact amount owed for the goods delive red. Con seq uently, and in th e absence of sufficient evidence, th e Court is unable to confirm the Appe llant's assertion that th e Respondent received more money than th e va lu e of the soya bea ns act ua lly supplied. 8.10 We acknowledge th e Appellant's rel iance on th e case of Andrew Chibeka v Edah Sikombe 3 in which the Supreme Court stated as follows: "Although every judge will have one's own style of writing, there are essential requirements which ought to be followed. A Judgment needs to make the parties understand how the court has dealt with their case and reached its decision. A Judgment will achieve the above if it gives reasons for arriving at a particular order. 11 J13 8.11 The Su pre m e Court has t ime and again urged Superior Court s to provide well reasoned judgments, which reasons must articulate how and why certain decis ions are reached and an evaluation of t he evidence before the lower Court. In t he case of The Minister Of Home Affai rs, The Attorney General vs Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Centre For The Constructive Resolution Of Disputes) 4 the Su pre me Court whe n confronted wit h t he lower Court's judgment, expressed its displeasure in the fo llowing terms: "Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts." 8.12 The Appel lant argues that t he lower Court did not explain how it arrived at its decision. Having considered the evidence before us, we agree with the learned trial Judge that, by f iling a counterc laim fo r Kl2, 936,119.00, t he Appel lant bore the burden of proving entitlement t o t hat amount on a balance of probabi lities. In our view, that burden has not been discharged. There is simply insufficient evidence to support the amount claimed. We also agree with the Responden t 's submissions that the sums under this ground do not reconcile, given t he differences in rat es shown o n the Weigh Bridge Tickets and other receipt s on record. 8.13 We refer to the observations of the Supreme Court of the United Kingdom in the case of Barton and others (R espondents) v Morris and anot her in pl ace of Gwyn-Jones (deceased) (Appell ants) 5 , where the Court affirmed that oral J14 contracts are capab le of giving rise to binding legal obl iga t ions. However, as Lady Rose (with whom Lord Briggs and Lord Stephens agreed) observe d, that the exist ence and term s of such agreements are question s of fact to be determined from the su r roun ding circu mstances, con duct, and the spoken exchanges between th e parties. In this case, Lady Rose further observed at paragraph 12 of the decision as follows: (a) The express terms of the contract 12. When dealing with an oral contract, the terms which the parties expressly agreed must be divined from the evidence before the judge ... 8.14 In the same Judgment, the Court noted as fo llows at paragraph 184: 184. The matter does not end there, however, as the agreement made in this case was an oral agreement, the terms of which were never put in writing. When interpreting a written contract, English la w adopts an objective approach which requires the court to decide what reasonable people in the situation of the contracting parties would have understood the words used to mean. What the parties thought their obligations were is of no consequence. Ho wever, as Lord Hoffmann observed in Carmichael v National Power Pie {1999} 1 WLR 2042, 2050, th at "austere rule" does not apply to an oral agreement of which no definitive record was made. In such a case the court is not ascertaining the meaning of an agreed text as ex hypothesi there is no agreed text. Nor, unless a recording of the relevant conversation(s) was made, can the court know the exact words spoken nor the full context in which they were spoken, including other potentially relevant details and innuendos of the discussion. In these circumstances, the parties' subjective understanding of JlS what they agreed is admissible as evidence of what as a matter of fact they did agree: see also Thorner v Major {2009} UKHL 18, [2009] 1 WLR 776, para 82 (Lord Neuberger). Of course, as Lord Hoffmann commented in Carmichael at p 2051, the court may reject such evidence as unreliable. But where the judge makes findings of fact about what the parties understood the content and scope of their agreement to be, there would need to be a very powerful reason for an appeal court either to reject those findings or to conclude that the parties actually agreed terms which meant something different from what they both thought they had agreed. 8.15 In ou r view, the observations of their lordships in the cited case of Barton and others (Respondents) v Morris and another in place of Gwyn-Jones (deceased) (Appellants) 5 are relevant in casu. In the absence of complete evidence to substantiate the Appe llant's submissions, we are of the view that th e Court is left with uncertaint y and speculation as to what if anything, is owed between the Parties. 8.16 In the case of Philip Mhango v Dorothy Ngulube & Others 6 , the Supreme Court reasoned that: "Any party claiming a special loss must prove that loss and do so with evidence which makes it possible for the court to determine the value of that loss with fair amount of certainty. " 8.17 It is our view that the matter has largely become a "he said- she said" dispute, which only adds confusion. The Cou rt cannot be expected to draw conclusions in the absence of clear and reliable evide nce. J16 8.18 To reiterate, it is undisputed that some deliveries we re made and some payments effected fo r the supply of soya beans. Although Counsel Sianondo attempted to lead us through various pages of the Record, to show amounts paid and those outsta nding, there is more equity in referring the matter to assessment. In light of this, we are of the considered view that, in the interest of j ustice as it relates to grou nd 1, the matter shou Id be referred to the Registrar for assessment, so t hat a f ull reconciliation of accounts can be carried out to determine what is owed between the Parties in these circumstances. To this extent, we f ind merit in ground 1 of th e appeal. 8.19 With rega rd to ground 2, the Appellant submits that the lower Court erred by not awarding damages for breach of contract. The Appe llant referred to the case of Finance Bank Zambia Limited & Oth er v Simata Simata 7 and subm itted t hat there is no doubt that the Respondent in not delivering the goods as agreed, breached the contract and therefore, the Appellant is en t itled to damages for breach of contract. 8.20 We have had occasion to ana lyse the cited case of Finance Bank 7 and note that in this case, the Supreme Court refused to order a refund of the settlemen t amount or award substan t ial or specia l damages as the employer d id not prove loss of reputat ion. The Supreme Court stated as fol lows at page J38: "We have stated already that the penalty for breach of a settlement agreement could be specified in the agreement itself. In this case, it could be specified that a breach of the settlement agreement would immediately trigger the respondent's obligation to refund the J17 settlement sum. As a court our role in such a case would be to ascertain whether such a clause would not have been intended to punish the respondent and whether the penalty for breach was connected with the amount of loss which was contemplated by the parties at the time of contracts. This was not the case here. The appellants have not given any basis for claiming a refund of the Kl million which was paid in the settlement. The claim for that refund becomes even more difficult to justify when one considers the essence of damages for breach of contract as we have explained it. In an effort to ascertain the basis of the claim for a refund of the Kl million, we asked Mr. Chenda at the hearing of the appeal whether, if the settlement agreement had not been breached, the appellants would have been Kl million richer. He gracefully conceded that they would not. We are unable to ascertain from either the evidence or the submissions any basis for ordering a refund of the Kl million paid under the settlement. That claim is bound to fail and we dismiss it accordingly. 11 8.21 The Appellant further submitted that the only way to restore the Appellant is to be paid all the losses which were inflicted on it by reason of non- delivery on the part of the Respondent. It is clear from the evidence before us that there is insufficient and unconvincing evidence to support this claim . Having already determined ground 1 as above, we are of the view that the award of interest on the amounts to be assessed by the Registrar, is sufficient compensation for the Appellant. In any event, the trial Court found that the Appellant had not demonstrated any loss sufficient to justify an award of J18 damages for breach of contract. For these reasons, ground 2 fails for lack of merit. 8.22 Turn ing to ground 3, it is the Appellant's submission tha t with reference to the claimed amou nt of K262, 800 .00 for t ransporta t ion, the lower Court proceeded to grant t he amount to the Respondent without ascertaining how many trips were made. It was further submitted that there was no agreement as to transportation . According to the Respondent, t here is clear evidence of an agreement that t he Appellant wo uld bear tra nsportat ion costs. 8.23 We have had sight of page 39 of t he Record, which exhibits a receipt addressed to the Appella nt from the Respon dent wh ich clearly demonstrates an agreement between t he Parties w hich reads 'Mr Mustafa will pay 6000 transport for two trucks tomorrow'. In addition, page 44 of the Record also shows two transactions dated 3i5t May 2021 and 2nd June 2021 respective ly, both of which indicate "transport included". There is seen from pages 151 to 152 of the Record. 8.24 We have observed that the Appellant gave evidence at trial that there was no agreement rega rd ing tra nspo rt, and when questioned on the matter, appeared evasive. What is clear to us is that transportation costs did not apply to every transaction or delivery between the parties. This is evident from page 44 of the Record, where the list of transactions shows some including transport costs and others indica ting "no transport. " Notwithstanding th is, we are satisfied that there is evidence suggesting that the Appel lant was, in fact, responsib le for paying for certain delivery trips. J19 8.25 Furthermore, at trial the Appellant confirmed that not all receipts were included on record, with only some being presented, as seen at page 504 of the Record. In the face of this, the Court is unable to determine with certainty how many de livery trips were conducted or whether t he sum of K262,800.00 is fully substantiated. In light of this, we are of the view that there is merit in the Appellant's argument to the extent that the number of trips must be determined in order to ascertain the correct amount owed to the Respondent for transportation costs. Whi le it is evident that there were previous dealings bet ween the Parties involving various goods, some transactions do not clearly indicate transportation costs, as reflected on page 44 of the Record. Accordingly, this issue is referred to the Registrar for reconciliation and assessment of t he amount of K262,800.00 awarded to the Respondent for transportation costs. To this extent, there is merit in ground 3 . 8.26 Turning to ground 4, it is the Appellant's submission that the Respondent used the Toyota Hilux vehicle without paying for it and four (4) months later seeks to wash her hands off the vehicle. The Appellant's contention is that the Respondent should bear the costs of repairing the vehicle in issue. In response, the Respondent submitted that the Appellant's claim has no merit and argued that it should be d ismissed because there was an agreement to share the repair costs. 8.27 We have had occasion to peruse the record and note page 234 of the Record. It is manifestly clear that there is correspondence between t he Appellant and the Respondent in wh ich Mustafa (DWl) specifically, confirms and proposes that the Respondent and DWl share the costs of the engine repairs to which J20 DWl indicated that th ese can be shared between t hem . We further note that this was not contested at tr ia l. For the above reasons, we see no reason t o depart from the finding and subsequent rea soning of the lower Court. Ground 4 fa ils and is dismissed accord ingly. 8.28 Turning to ground 5, it is the Ap pellant's subm ission that there was no ta x fac ility which the Respondent had, which led the Appellant t o pay tax for the goods. We have noted pages 128 t o 130 of the Record, wh ich shows release orders from customs services division (ZRA) dated 7th August 2021 received in the na me of the Respondent. 8.29 Based on t he record , it is not disputed that the Appellant imported cosmet ic goods in th e name of the Respondent worth $84, 321.00. We have carefully and painstakingly exam ined the evidence before us. We note at page 510 of th e Re cord t hat the Appellant confirms that the tax was paid by the importer. When asked how much the tax was, he stated that he did not know and was dism issive of the questions at tria l, despite acknowledging that the goods were imported in th e name of the Appellant as seen at page 129 of the Record. 8 .30 With the above find ings, we are of th e firm view that the Appellant's arguments appear to be a tactic to deny th eir liability t o refu nd th e Respondent the 14% co mmission owed t o the Respondent. We find no merit in ground 5 and d ism iss it acco rdin gly. J21 9.0 CONCLUSION 9.1 The net effect of our determination is that the appea l partially succe eds with respect to grounds 1 and 3 whereas grounds 2, 4 and 5 lack merit ent ire ly and stand dismissed . 9.2 With respect to grounds 1 and 3, being the claims pertaining t o the delive ry and supply of soya beans as wel l as transportatio n costs, these are referred t o the Registrar for assessment and reconci liat ion of accounts between t he Appellant and the Respondent. 9.3 On the amounts to be assessed, we award inte rest to th e Appellant at short term ban k lend ing rate from th e date of th e acti on to the date of Judgment in the lower Court and interest th ereafter shall be ca lcu late d in accordance with the Judgment Act to the date of payment. 9.4 Owing to the circumstances of th is appeal and to our determination above, this is an appropriate case for us to order t hat Parties bear t heir own costs of the appeal. M. J. SIAVWAPA JUDGE PRESIDENT F. M . CHISHIMBA COURT OF APPEAL JUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGE J22