Duet Communications Ltd v Zambia Telecommunications Company Ltd (CAZ Appeal 179 of 2020) [2022] ZMCA 67 (6 October 2022)

IN THE COURT OF APPEAL OF ZAMBIA<fT^C^^^ HOLDEN AT LUSAKA (Civil Jurisdiction) , No. 179/2020 CAZ/08/302/2020 BETWEEN: DUET COMMUNICATIONS LIMITEajsd^^ APPELLANT CIVIL REGISTRY 1 AND ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED RESPONDENT CORAM : Chishimba, Siavwapa and Sharpe-Phiri JJA On the 20th April, 2022 and 6th October, 2022 For the Appellant : Mr. Kaunda of Messrs Kaunda Kaunda Legal For the Respondent : Mr. Mayondi In-House Legal Counsel Practitioners JUDGMENT Chishimba JA, delivered the Judgement of the Court. CASES REFERRED TO: 1) Phillip Mhango v Dorothy Ngulube & Another (1983) ZR 61 2) Atlantic Bakery Limited v ZESCO Limited Selected Judgment No. 61 of 3) Hakainde Hichilema & Five Others v The Attorney General SCZ Appeal No.28 of 2017 4) Khalid Mohamed v Attorney General (1982) ZR 49 5) Bank of Zambia v Ignatius Kashoka SCZ Appeal. No. 20 of 2016 6) BP Zambia PLC v Expendito Chipasha Chipalo & Others Selected Judgement No. 12 of 2014 7) Thomas Owusu and 142 Others v Attorney General Appeal 53/2011 8) Nkhata & Others v The Attorney General (1966) ZR 124 9) Huddersfield Police Authority v Watson 1947 -J.2- 10) Morelle Limited v Wkelina (1955) 1 ALLER 708 CA .11 ) Oliver John Irwin v The People 1993 S. J 6(S. | C) 12) Anthony Khetani Phiri v Workers Control Board SCZ No 2/2003 13) Colgate Palmolive Zambia Inc v Abel Shemu & Others SCZ 181 of 2005 14) Christopher Mundia Lubasi v Sector Motors (1982 ZR.66) 15) Finance Bank Zambia Limited v Weluzani Banda and 162 Other (SCZ No. 31 of 2019 16) YB and E Transport Limited v Supersonic Motors Limited (SCZ No. 3/2000) 17) Savenda Management Services v Stanbic Bank SCZ No. 10 of 2018 18) Attorney General v Achiume (1983) ZR 1 19) Paul Roland Harrison v The Attorney General (1993/ 1994) Z. R. 68 LEGISLATION CITED: 1) The Rules of the Supreme Court of England, 1999 Edition. 2) Blacks’ Law Dictionary 10 INTRODUCTION 1.1 This appeal is against the judgment delivered by the Hon. Madam Justice S. M. Wanjelani dated 10th July, 2020, dismissing the appellant claims and respondent’s counter claim. 20 BACKGROUND 2.1 The appellant and respondent entered into a Distributor Agreement dated 9th May, 2013 in which the appellant was engaged to sell the respondent’s products namely mobile scratch cards, sim cards and mobile phones over a period of five years. The terms of the agreement provided that the appellant would be paid commission by the respondent for the airtime -J.3- sold, as well as a one-off KI0.00 activation bonus for each sim card sold recharged with an amount of K20.00 airtime and two percent revenue share on each sim card sold. The revenue share was to be in form of stock and not cash. 2.2 Under Clause 29.4 of the agreement, the respondent bore the responsibility for preparing monthly reports of the Distribution Sales Performance indicating the amounts owing by way of remuneration. It was alleged that the respondent failed to prepare the said reports. 2.3 Due to the failure to render the monthly report and pay the commission, the appellant claimed the sum of K3,399,562.55 being unpaid activation bonuses and revenue shares owing as at 30th April, 2015. The appellant averred that it sold over 40,000 sim cards on behalf of the respondent. The appellant claimed cash as opposed to revenue share because it was no longer mandated to sell the respondent’s products. 2.4 The respondent in its defence and counter claim, pleads that the distributor agreement between the parties provided that the revenue share due to the appellant would be paid in the form of stock and not cash as claimed. The respondent further stated that what was due to the appellant was in fact the sum of K42, -J.4- 222.52 in revenue share and activation bonus based on the report generated by the IT department. The respondent averred that it did not pay because the appellant was owing it the sum of K900,971.00 arising from a credit facility in respect of the value of stock collected by the appellant over a period of time. 2.5 Under the said alleged credit facility, the appellant would issue postdated cheques in favour of the respondent for stock supplied to it. A number of the said cheques were issued on an insufficiently funded account and thus accumulated over time. For this reason, the respondent counterclaimed the sum of K900,971.00 with interest and cost. 3 .0 DECISION OF THE COURT BELOW 3.1 In her judgment, the learned Judge found that it was common cause that the 12% commission on airtime was paid. The court identified two issues for determination; whether the appellant was entitled to the sum of K3,399,562.55 in unpaid activation bonuses and revenue share; and secondly, whether the respondent was entitled to the counter claim sum of K900,971.00. 3.2 She considered the provisions of clauses 5.0 and 6.0 of the agreement in respect of the 2% revenue share and activation -J.5- bonus in relation to the specific claimed sum of K3,399,562.55. * Placing reliance on the Supreme Court guidance in the case of Phillip Mhango v Dorothy Ngulube & Another, (1) the learned Judge was of the considered view that when a plaintiff seeks a specific amount, he has a duty to prove the stated amount by producing evidence upon which the court can make an informed determination of the value of the loss. 3.3 The evidence adduced by PW4 was alluded to, who testified that the monthly reports of the sales performance were not prepared by Zamtel as required under Clause 29.4 of the contract. In lieu of the said reports the appellant calculated its claim based on the 47,000 sim cards sold as per targets set and the stubs received from the respondent. The lower court rejected this method, stating that nothing had been shown to establish the exact number of sim cards sold by the appellant and the total remuneration from which the revenue share and activation bonuses had been calculated. 3.4 The court below further found that no evidence had been produced to show which of the sim cards were topped up with a minimum of K20.00 within three months from date of the activation as the basis from which bonus would be paid. -J.6- Therefore, there was insufficient evidence adduced showing how V the appellant arrived at the claimed sum of K3,399,562.55. 3.5 The court equally found that though the respondent stated that the sum due to the appellant was only K42,222.53, the statement produced in its bundle of documents does not show how the respondent arrived at that amount. 3.6 Guided by the cases of Atlantic Bakery Limited v ZESCO Limited (2) and Hakainde Hichilema & Five Others v The Attorney General (3), the learned Judge reasoned that the amount claimed, having been specifically pleaded, the appellant had to meet the threshold for proving the claimed amount as required for a special loss or damage and was bound by its pleadings. 3.7 The court below opined that it was confined to the questions raised in the pleadings and had no jurisdiction to grant reliefs beyond that prayed for. That the appellant had boxed itself in by being specific in the amount claimed and was bound by the pleadings. 3.8 Further, the lower court found that no other evidence was led to show what could fall under the claim couched as “payment of other sums that will be found due and unpaid under the said -J.7- Agreement”. The lower court held that the appellant had not discharged the burden of proof and dismissed the claims. 3.9 In respect of the counter claim, the court began by addressing the issue raised by the respondent that because the appellant did not file a defence to its counter claim, the court was curtailed to receive evidence disputing the amount. The court stated that irrespective of there being no defence, a plaintiff is required to prove its claims as held in the Khalid Mohamed v Attorney General(4) case. 3.10 With regard to the allegation that a credit facility was offered to the appellant at a discount of 10%, the court considered the provisions of clauses 23.3 and 23.4 of the agreement as well as the postdated cheques issued to cover the said facility. The court held that no evidence was produced to the effect that there was modification to the contract requiring postdated cheques as per written notice. 3.11 The court took judicial notice of the fact, that the initials ‘R/D’ endorsed on the face of a cheques leaf refers to dishonored cheques. The lower court considered the cheques that had been issued on an insufficiently funded account that were said to make up the respondent’s claim. The learned Judge took the -J.8- view that there was no way of knowing whether or not the appellant had made alternative payments considering the fact that the cheques were issued over a period of time, during which time the respondent continued supplying the appellant airtime. 3.12 Further, that the presented cheques added up to the sum of K936,088.48 as opposed to the pleaded amount of K900,971.00. In addition, the lower court found the “detailed reconciliation statement” at pages 156 to 163 of the record of appeal, to be of no help as it did not disclose what document it was. The document had no title and that it appeared to contain other dealer accounts. The respondent did not highlight the dishonored cheques that totaled the claimed amount. That this was akin to expecting the court to look for a needle in the haystack. 3.13 The court found that the respondent had failed to discharge its burden of proof and dismissed the counter claim. 4 0 GROUNDS OF APPEAL 4.1 Aggrieved with the decision of the court below, the appellant advanced six grounds of appeal couched as follows: 1) The court below erred in both law and fact by treating the appellant’s claim for unpaid activation bonuses and revenue share as though they were special losses or damages, and thus -J.9- dismissing the said claims, when the said activation bonuses and revenue share are debts; 2) The court below erred both in law and fact by dismissing the appellant’s claim for unpaid activation bonuses and revenue share on ground that there was no evidence to support the claim for K3,399,652.55 contrary to the respondent’s express admissions of liability to pay the activation bonuses and revenue share, through pleadings and DW1; 3) The court below erred both in law and fact by dismissing the appellant’s claim for unpaid activation bonuses and revenue share on ground that the sum of K3,399,652.55 was not proved instead of referring the determination of the disputed amounts to assessment, as guided by superior court’s decision; 4) The court below erred both in law and fact by dismissing the appellant’s claim for unpaid activation bonuses and revenue share on ground that there are no reports herein and thus failing to appreciate the evidence on record to the effect that the information to be contained in the said reports is already on the respondent’s system, and accordingly the court below ignored and downplayed the settled principle that no person shall benefit from their own breach; 5) The court below erred both in law and fact by dismissing the appellant’s claim for payment of any other sums that will be found due and unpaid under the said agreement despite the respondent’s express admissions of liability through pleadings and DW1; and 6) The court below erred both in law and fact by not awarding costs to the appellant. 5 .0 APPELLANT’S HEADS OF ARGUMENT -J.10- 5.1 The appellant contends that the respondent has not denied liability under the Distributor Agreement. The only issue is the quantum of the amount due which the respondent pleads is ZMW 42,222.52. 5.2 In ground one, the appellant drew our attention to the learned trial Judge’s use of the words “loss” and “special loss or damages”, in the assailed judgment. That the court below proceeded on the footing that the claim of unpaid activation bonus and revenue share are special losses or special damages rooted in tort. It was submitted that the lower court erred because the said unpaid Activation Bonuses and Revenue Share are merely contractual debts, premised on the distributor agreement. 5.3 It was further contended that there is nowhere in the pleadings where the appellant pleaded and specified a sum as being for "special damages or loss’ which fact the court acknowledged in its judgment when it stated that: “Though this matter does not involve special damages ...’’Therefore, the court below fell into grave error in applying a principle relating to the law of tort, -J.il- specifically special damages or special loss, to a liquidated V debt/claim or demand premised on contract law. 5.4 On this basis, the appellant submitted that the holding in the case of Atlantic Bakery Limited v ZESCO Limited(2) relied upon by the lower court, does not apply herein, though the Supreme Court was on firm ground in holding that: “A court is not to decide on an issue which has not been pleaded. Put differently, a court should confine its decision to the questions raised in the pleadings. It can thus not grant relief which is not claimed.” 5.5 The appellant contended that the question that arises is whether it can be said that the issue or question of unpaid activation bonuses and revenue share has not been pleaded or specifically claimed by the appellant? The appellant submitted that the pleadings show that the above issues had been specifically pleaded and claimed. The only dispute the parties have is the quantum. 5.6 For the definition of debt or liquidated demand, we were referred to Order 6/2/5 of the Rules of the Supreme Court (RSC) 1999 Edition which provides as follows: "Debt or liquidated demand” -J.12- A liquidated demand is in the nature of a debt, i.e. a specific sum of money due and payable under or by virtue of a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be specified or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a "debt or liquidated demand”, but constitutes "damages. ..." 5.7 Therefore, the appellant cannot be said to have "boxed’ itself by specifying the sum as held by the trial court, or that the specified sum is disputed as still is the case herein. The appropriate approach was to have the debt or liquidated demand ascertained through assessment, as a matter of arithmetic or mere calculation. 5.8 The appellant submitted that the unpaid activation bonuses and revenue share are capable of being ascertained by mere arithmetic or calculation as the distributor agreement provides the formula under Clauses 5 and 6. 5.9 With respect to ground two, the appellant submitted that the dispute between the parties is on the quantum of the unpaid activation bonuses and revenue share. The respondent prepared what it called “Summary of the Plaintiff’s Revenue Share” appearing at page 344 of the record of appeal, which -J.13- though having a disputed sum of K42,222.53, is in itself an admission of liability or non-payment by the respondent as stated by DW1 in his evidence-in-chief and cross-examination. 5.10 The only issue the respondent had in relation to revenue share was that it was supposed to be paid for in form of stock. That Clause 5.4 of the agreement cannot be implemented in the manner the parties envisaged, as the parties are now estranged following the breach of the agreement by the respondent. This is because the appellant is no longer the respondent’s distributor. For this reason, it was contended that it would not be practical for the appellant to be paid the revenue share in form of stock. The only plausible way is for the appellant to be awarded the cash equivalent of stock, as per the endorsement on the writ of summons for a monetary claim of revenue share. 5.11 In light of the admissions of liability and non-payment by the respondent, it was argued that the court below ought to have sent the claims for assessment in line with the arithmetic formula, as opposed to dismissing the claims. The said admissions are evidence to support the claims. 5.12 The gist of ground three is that the lower court ought to have referred the determination of the disputed amounts of unpaid -J. 14- activation bonuses and revenue share to assessment rather than dismissing the claim altogether. The appellant submitted that having demonstrated that the unpaid activation bonuses and revenue share are a debt or liquidated demand, and not a special loss, and further that the respondent admitted liability to the extent of K42,222.53, the court below ought to have referred the matter to assessment by the Deputy Registrar to determine the actual amount due. 5.13 In support of this argument, we were referred to a plethora of cases which included Bank of Zambia v Ignatius Kashoka (5) and BP Zambia PLC v Expendito Chipasha Chipalo & Others*6* where the Supreme Court upheld a decision of the High Court to refer the question of the correct amount due for a liquidated demand to the Deputy Registrar for assessment. In both cases, the High Court did not dismiss the claims when the plaintiffs failed to prove how they arrived at the sums claimed having proved that there was non-payment. The High Court then referred the matter for assessment to determine the true value of the liquidated demand. Further, the case of Thomas Owusu and 142 Others v Attorney General *7) was cited on assessment. 5.14 Ground four attacks the decision of the lower court to dismiss -J.15- the appellant’s claims on the basis that there were no reports produced by the respondent from which the activation bonuses and revenue share could be ascertained. The appellant submitted that the respondent breached clause 29.4 of the agreement which mandated the respondent to prepare a report of the distributor’s sales performance which would indicate the amounts owing to the distributor, at the end of every month. This breach was acknowledged by the lower court in its judgment. 5.15 The bone of contention being that though the monthly reports were not availed to the court on account of not having been prepared or produced by the respondent. The information that would have been contained in the said reports had they been prepared, is "sitting’ on the information technology system of the respondent. This was confirmed by PW2 who testified that he made sure that all new sim cards that were activated were on the system in order to be billed. 5.16 PW3 equally testified that he generated raw information upon activation of sim cards, recharge and usage. Further, that PW5 stated that the respondent was required to produce a report on -J. 16- all sim cards that had been activated in a particular month from which the activation bonus could be computed. In addition, the respondent’s sole witness, DW also testified that a report would be made by the respondent based on the sim information submitted by the distributors to the IT Department showing the amount recharged on each card and the usage. 5.17 DW2 also stated in cross-examination that the respondent became aware once a dealer sold a sim card and active ted. Therefore, the lower court erred in failing to evaluate the evidence on record and holding that there was no evidence to determine the activation bonuses. 5.18 Citing the case of Nkhata & Others v Attorney General |8), we were urged to reverse the above findings of fact on the basis of failure to take into account some matter which the court below ought to have taken into account. In dismissing the claim on the basis that there were no reports, the court below in fact conferred a benefit on the respondent as a result of its own breach. The appellant went on to contend that the holding by the court below to the effect that there was no evidence to determine the Activation bonus and Revenue share and subsequent dismissal was made per incuriam. The definition -J. 17- of a judgment per incuriam by the learned Editors of Black’s Law Dictionary (8th Edition) page 1175 was cited. Reference was made to a number of cases on the principle of per incuriam namely Huddersfield Police Authority v Watson 1947 (9), Morelle Limited v Wkelina(10) and Oliver John Irwin v The People 1993 S. J 6(S. | C)(11). We were urged to uphold ground four and reverse per incuriam findings made by the court below. 5.19 In ground five, the appellant challenges the decision of the lower court, dismissing the claim for payment of any other sums that were to be found due and unpaid under the agreement in light of the respondent’s express admissions in the pleadings. The appellant contends that having erroneously dismissed the claim for activation bonuses and revenue share, the lower court should have entered judgment on the admitted sum of K42,222.53. The admission made in the pleadings, cannot be rejected as it required no further evidence or proof. 5.20 Therefore, the admission of liability by the respondent to the tune of K42,222.53, ought to have been awarded as damages under the claim of 'payment of any other sums that will be found due and unpaid under the said agreement’. As authority the case of Anthony Khetani Phiri v Workers Control Board (12) -J. 18- (supra) was cited where the net amount owing was in issue after the appellant admitted obtaining the loans, and the matter was referred for assessment. In any event, the court was not prevented from awarding a relief apparent from the pleadings. 5.21 Lastly, in ground six, we were urged to award costs to the appellant on the basis that the respondent did not dispute the fact that it has not paid activation bonuses and revenue share to the appellant, and breaching the agreement. We were urged to allow the appeal with costs to the appellant in both courts. 6 0 RESPONDENT’S HEADS OF ARGUMENT 6.1 The respondent filed Heads of Argument dated 20th November 2020. Grounds one, two and three are argued together as they are interrelated. It was submitted that the court below clearly pointed out that the matter did not involve special damages. Since the appellant was claiming a specific amount, evidence ought to have been adduced to that effect by the appellant claiming the sum of K 3,399.562.55. The principle of law that he who alleges must prove is well established. Therefore, the trial court could not be faulted for dismissing the claims. 6.2 With regard to the reliance by the court on the case of Atlantic Bakery Limited (supra), and the issue whether the appellant -J.19- had specifically pleaded for Activation Bonuses or Revenue Share, it was contended that the court only referred to this case when dealing with fact that despite finding breach on the part of the respondent, the court could not award damages for breach because they were not specifically pleaded. 6.3 In relation to Order 6 Rule 2(5) of the Rules of the Supreme Court, distinguishing a liquidated demand from a claim for damages, it was argued that in casu, the claim for Revenue Share and Activation Bonus is a liquidated demand not requiring further investigation beyond mere calculation as the formula for calculating the same is not disputed as per agreement on record. 6.4 The respondent contends that though it is not in dispute that the appellant was entitled to Revenue Share and Activation Bonuses, it did not prove the case in line with the pleading. The Distributor Agreement provided for payment of any Revenue Share in form of stock and not cash. The appellant claims payment of the same in cash without proving they were entitled to be paid in cash. Awarding payment of cash would be contrary to the terms of the contract. Reference was made to the Colgate Palmolive Zambia Inc. v Abel Shemu (13) cases (supra). The -J.20- second limb of argument in respect of the claim of Revenue Share, is that the appellant ought to have produced evidence of outgoing calls made by their customers (profile) from which revenue was generated. 6.5 It was also argued that the appellant ought to have produced evidence in respect of Activation Bonuses, which is due on customers in the dealer’s profile who had recharged with a monthly minimum of K20 within three months of activation. Mere evidence of the sale of airtime in itself did not entitle them to activation bonuses, without evidence that the actual customers did recharge with a monthly minimum amount stated above. That the appellant ought to have issued a subpoena for all relevant information as they did in respect of witnesses. Having failed to prove their case, no assessment for quantum could be ordered. 6.6 In the alternative, it was submitted that should we order assessment of the amount due, then in line with the Able Shemu case, the appellant should be bound by contract agreement and their pleadings. Therefore, only activation bonuses should be sent for assessment and that the claim for Revenue Share be dismissed. 6.7 The argument by appellant that cash payment for Revenue -J.21- Share is preferable, because it is no longer a dealer is untenable. Should the appellate court be of the mind to send the claim for Revenue Share for assessment, the appellate court must order that any payout due should be in form of stock. 6.8 Ground four attacks a finding of fact to the effect that based on the evidence before it, the claim for Revenue Share and Activation Bonus cannot be determined from the documents produced in court. The contention being that the above findings cannot be reversed as they were not perverse or made in unbalanced view of the evidence. The fact that the evidence required to prove the case is stored in the respondent’s system as alleged does not change the fact that the same was not produced before court. That the court did not misapprehend the evidence or fail to evaluate the said technical evidence that the information contained in the reports that ought to have been produced by the Respondent was sitting on ‘its’ technology system. It is not the duty of the court to look for evidence not brought before court. That duty rests on a claimant who could have simply issued a subpoena for the said records on the system. 6.9 The respondent reiterated that though the court found breach -J.22- of contract on its part, it could not award the appellant damages for breach because they were not pleaded. Therefore, the facts herein are distinguishable from the cited case of Zambian Breweries Plc v Lameck Sakala (supra) 6.10 Ground five assails the failure of the court to grant the appellant’s claims for payment of any other sums that will be found due and unpaid under the agreement despite the admission of liability. In this regard, reference was made to the functions of pleadings stated by the Supreme Court in the cases of Christopher Mundia Lubasi v Sector Motors |14) and Finance Bank Zambia Limited v Weluzani Banda and 162 Other ,15). Fair notice not having been given of the allegations raised against the respondent to enable it defend itself, the claims could not be granted by the court. 6.11 As regards the issue of the court not awarding the appellant costs the respondent submits that the lower court was on firm ground as costs are in the discretion of the court and generally follow the event. As authority the case of YB and E Transport Limited v Supersonic Motors Limited (16) was cited. Both -J.23- parties having been unsuccessful in their claim and counter claim, it was in order for them to bear their own costs. 7 .0 APPELLANT’S ARGUMENTS IN REPLY 7.1 The appellant filed arguments in reply dated 10th December, 2020 in which it was contended that the respondent has conceded to its submissions that the claims for activation bonuses and revenue share in the sum of K3,399,562.00 are not special damages. Therefore, on the basis of the agreement, the respondent ought to have conceded to the grounds of appeal in view of the fact that liability as regards activation bonuses and revenue share has been admitted by the respondent. 7.2 The argument that the claims are not special damages and were dismissed because the appellant pleaded a specific amount only confirms that the respondent has misapprehended or failed to appreciate the arguments. It was contended that the fact that the respondent is silent on the contention relating to the debts or liquidated demands, further shows that the respondent has no plausible response. 7.3 In addition, the appellant in addition contends that the absence of reports before court cannot be a basis for dismissing the claims. For this reason, the reliance on the Atlantic Bakery v -J.24- ZESCO Limited case (2) by the respondent is misconceived because in the said case, the court was in fact referring to the pleading of issues or pleadings as opposed to specific claims or remedies endorsed on the originating process. 7.4 To fortify its position, the appellant referred us to the case of Savenda Management Services v Stanbic Bank Zambia Limited (17) where the Supreme Court guided that the power created by section 13 of the High Court Act Chapter 27 of the Laws of Zambia, is limited to that of the court investigating if alternative remedies and reliefs are available from the pleadings and evidence deployed before it as opposed to suggesting, from a vacuum, fresh remedies or reliefs. The Judge is bound to the pleadings and evidence and to only grant reliefs and remedies arising from such pleadings and evidence, whether they are specifically asked for or not. 7.5 The appellant reiterated that the evidence of PW2 who was not cross-examined and PW3 confirms that though the respondent did not prepare monthly Distribution Sale Performance reports, the information to be contained therein was already on the respondent’s system. This is the information required to determine how much a particular sim-card was recharged in a -J.25- month and the number of calls that were made from it. Therefore, the argument by the respondent that the appellant should have produced evidence that some of the customers on their profile made calls and recharged their sim-cards with airtime within the first three months, is misplaced. This evidence can and is to be produced at assessment. 7.6 The appellant further submits that the respondent cannot use its failure to prepare the reports as a defence. Principles of law and equity cannot allow it to benefit from the said failure/omission. The appellant contends that given the large number of sim-cards involved (approximately 30,000), and the fact that the agreement between the parties gives a formula on how to compute activation bonuses and revenue share, the appropriate court to undertake the exercise of determining the correct amounts owed to the appellant, would be an assessment court. 7.7 As regards the argument that the appellant should be awarded stock as opposed to money, the appellant submits that this would be unfair because it is no longer an authorised dealer/distributor of the respondent. Had the respondent not breached the agreement by failing to pay revenue share on time, -J.26- the mode of payment would not be an issue. It was argued that an award of stock would force the appellant and respondent to work together when it is clear that their relationship has broken down irretrievably. 7.8 In response to the contentions raised by the respondent in ground four, the appellant reiterated that the evidence of PW2 and PW3 was clear that all the information on the sim-cards is sitting on the respondent’s system. Therefore, the lower court gravely erred in dismissing the claim on the basis that there were no reports produced in evidence when the lack of the said reports was occasioned by the respondent. The lower court found this failure to be a breach of the agreement. 7.9 The dismissal of the claims in respect of revenue share and activation bonuses, thus amounted to rewarding the respondent on account of its own wrong or breach. The court below ought to have ordered that the claims be assessed. 7.10 As regards the argument that the appellant did not plead breach of contract, it was submitted that the claims herein emanate from the fact that revenue share and activation bonuses have to date not been paid which is a breach of contract in itself. Therefore, the finding of the court below that there was no -J.27- evidence on which to determine the quantum of revenue share and activation bonuses due to the appellant, is perverse. The court below failed to analyse the evidence and admissions on record. 7.11 In respect of the contention that the appellant ought to have issued subpoenas for the information contained on the respondent’s system, the appellant maintains that this task is for the assessment court as it is a highly technical, laborious and painstaking process. 7.12 As regards the arguments raised in ground five by the respondent, the appellant submits that it is common cause that the relationship between the parties was governed by the distributor agreement. That a perusal of the claims endorsed on the writ of summons shows that among the claims as follows: (b) “payment of any other sums that will be found due and unpaid under the said agreement. ” 7.13 Based on the said agreement, the appellant was claiming unpaid revenue share and activation bonuses which are related to claim (b). 7.14 It was submitted that the evidence on record shows that the remuneration due to the appellant related to only airtime -J.28- commission, revenue share and activation bonuses. That as the appellant was not claiming airtime commission, it follows that any unpaid sums found due herein relate to revenue share and activation bonuses. Therefore, the lower court misdirected itself in dismissing the claim on the basis that it was not clear. It was further submitted on behalf of the appellant that under claim (b), the court below ought to have awarded the appellant the sum of K42, 222.53 which sum was readily admitted as unpaid and due to the appellants based on the clear pleadings and evidence on record. 7.15 Lastly, in response to the contentions raised by the respondent under ground six, it was submitted by the appellant that it had demonstrated that the claims were not special damages and that the respondent has admitted liability of not paying the revenue share and activation bonuses. Therefore, judgment ought to have been entered in favour of the appellant with costs. .0 COUNTERCLAIM/CROSS APPEAL BY THE RESPONDENT 8.1 The respondent filed a cross appeal, advancing three grounds couched as follows: 1) The court erred in both law and fact when it refused to award the respondent the claimed amount of -J.29- K900,971.00 based on the fact that there was no way of knowing whether the appellant had in fact, replaced the dishonoured cheques, after taking judicial notice of the fact that cheques that were issued by the plaintiff were in fact not honoured by the appellant’s banks; 2) The court erred in both law and fact when it refused to grant the respondent’s counterclaim based on the fact that the total sum of cheques that were presented before the court amounted to K936,088.48 while the claimed amount was K900,971.00; and 3) The court erred both in law and fact when it held that the “detailed reconciliation statement” was of no help as it did not disclose what document was, as it had no title and it contained other dealer accounts without highlighting the cheques. 9 .0 RESPONDENT’S COUNTERCLAIM ARGUMENTS 9.1 In ground one of the counterclaim, the respondent submits that it is not in dispute that the dishonoured cheques were issued by the appellant as part of their business relationship with the respondent. DW1 testified that the appellant would place orders by issuing postdated cheques equivalent to the amount of airtime purchased. This was guarantee for the payment of the -J.30- stock obtained. 9.2 While acknowledging the principle of law that it was the duty of the respondent to prove its counterclaim, it was submitted that the respondent discharged its burden of proof by producing verbal and documentary evidence of the cheques that were dishonoured. 9.3 It was argued that the lower court erred in assuming that the cheques might have been replaced without such evidence coming from the respondent. That in so doing, the court below was in effect looking for evidence on behalf of the appellant. That if the appellant had replaced the cheques, it ought to have pleaded that fact and produced evidence of the cheques or bank transfers that they used to replace the dishonoured cheques. There having been no such pleading, the trial court ought to have awarded the respondent the amount sought in the counterclaim. 9.4 The respondent contended that it produced an untitled reconciliation statement which clearly explained that the document was a reconciliation statement. DW1 further testified and referred to three cheques that were reflected on the reconciliation statement and not honoured by the appellant’s -J.31- bank. 9.5 Having exhibited the dishonoured cheques and the reconciliation statement together with the testimony of DW1, the respondent submitted that it had proved its case on a balance of probabilities. There was nothing more that could be said or done to prove the indebtedness to the respondent. 9.6 In ground two, the respondent contends that its case is similar to that of Bank of Zambia v Ignatius Kashoka (5). The only issue remaining to be determined being the quantum or total sum of cheques that were not honoured, the court ought to have referred the matter to assessment being uncertain of what the actual amount due was. 9.7 The respondent further contended that the appellant obtained stock and issued postdated cheques in the total sum of K936,088.48. The amount claimed was thus proved by the exhibited cheques. If anything was replaced, it is safe to assume that it was the difference between K936,088.48 and K900,971.00. 9.8 In the circumstances, we were urged to find that where there is a lacuna in evidence, the same should have been resolved in -J.32- favour of the respondent because the cheques produced were higher than the amount being claimed. In the alternative, that assessment would have been the way to proceed in that liability was established but the quantum was in doubt. 9.9 Lastly, in ground three, the respondent contended that DW1 testified that the reconciliation statement highlighted at least three cheques dishonoured by the appellant’s bank appearing thereon. That the court below failed to appreciate and understand the statement and instead, dismissed the claim on account of its failure to understand the statement. The court below had a duty to read and understand the reconciliation statement, even if it meant looking for all the other cheques that were dishonoured on it as the same is part of the evidence having been produced in the bundle of documents. 9.10 It was argued that a reading of the reconciliation statement shows that it only relates to the appellant’s account contrary to the assertion by the trial court that the reconciliation statement seemed to relate to other dealer accounts. Citing the case of Attorney-General v Achiume (18), the respondent urged us to reverse the findings of the court below. 10 .0 APPELLANT’S ARGUMENTS IN OPPOSITION -J.33- 10.1 The appellant opposed the cross-appeal and filed arguments in opposition to the appeal. In ground one, the appellant denied owing the sum of K900,971.00 or any sum indicated on the cheques before the court. Counsel stated that in terms of the distributor agreement, no stock could be delivered to the appellant before the cheques were cashed, paid or honoured. Therefore, no stock was delivered on the strength of the dishonoured cheques. 10.2 It was further argued that the cheques in issue were in fact not post-dated cheques in view of clause 23.1 of the agreement which required the receipt of funds in advance. Even if the cheques were postdated, it was contended that they needed to be first cashed, paid or honoured before stock could be delivered. 10.3 The appellant denied being availed any credit facility as the only facility was by way of bank guarantee. In any case, the respondent did not produce any evidence on the alleged 30-day credit agreement. No such credit facility was provided for under clauses 23.1, 23.3 and 23.4 of the agreement. 10.4 The appellant further contends that the evidence of PW1 that -J.34- the appellant does not owe any sum under the counterclaim was never challenged in cross-examination. The appellant argued that the mere production of the dishonoured cheques is not proof that the appellant owe the sums on the said cheques. There had to be a delivery note to confirm receipt of the goods, and in this case, none were produced. 10.5 Lastly, the appellant submitted that the nature of the stock allegedly worth K900,971.00 is un known as there was no documentary evidence or testimony to show whether it related to mobile phones, talk time scratch cards or sim cards and the respective numbers thereof. The failure of the respondent to specify the nature of the stock was because there was no delivery as there are no delivery notes to state what stock was supplied. 10.6 As regards ground two of the cross-appeal, the appellant repeated its arguments in ground one that in the absence of delivery notes to confirm what stock was delivered, it is irrelevant whether or not the amounts on the cheques total K900, 71.00 or K936,088.48. Therefore, the contention that the counterclaim should have been referred to assessment is -J.35- misconceived because liability in relation to the dishonoured cheques can only be proved by delivery notes with a value totaling the counterclaimed sum. 10.7 Lastly, in challenging ground three, the appellant submits that whether or not three cheques appear on the reconciliation statement does not change anything in the absence of delivery notes to confirm the stock worth the sum counterclaimed. 10.8 Further, DW1 expressed ignorance on who prepared the reconciliation statement in cross-examination and, as such, was not even competent to speak on it. Therefore, the entire reconciliation statement and the claim founding the cross­ appeal are an afterthought. This is because the said statement was prepared on 29th September, 2015 long after the pleadings had closed. The said reconciliation statement is unhelpful. We were urged us to dismiss the cross-appeal with costs. 11 .0 DECISION OF THIS COURT 11.1 We have considered the appeal, the arguments advanced by the parties and the authorities cited by Learned Counsel. 11.2 The following facts are not in dispute that the parties entered into a Distributor Agreement. The appellant contracted to sell the respondent’s products. Consideration was to be paid in -J.36- form of commission by the respondent, as well as a one off KI0=00 activation bonus for each sim card sold which recharged with K20 air time. Further, the two percent revenue share in respect of each sim card sold was to be paid in form of stock. The respondent was responsible for preparation of monthly reports in respect of the sales performance. It is further not in issue that the respondent did not produce the said monthly sales performance reports. 11.3 The dispute is in respect of the claims made by the appellant in the sum of K3,399,562.55 and the counter claim sought by the respondent in sum of K900,971. We shall start with the claims by the appellant. The issues raised in the grounds of appeal for determination in our view are as follows: (i) Whether the court below treated the claim by the appellant for unpaid activation bonuses and revenue share as special loses or damages that had to be specifically pleaded. (ii) Whether the appellant failed to prove its claim for activation bonuses and revenue share. (iii) Whether the respondent admitted liability in the pleadings in respect of the claims for activation bonuses and revenue share. (iv) Whether the court below erred by failing to refer to the Deputy Registrar (D. R)for assessments the determination of the actual amounts due in respect of the claim. -J.37- (v) Whether the court erred in refusing to award the respondent the sum of K900,971 sought in the counter claim. In a nutshell whether the respondent had proved its counterclaim. 11.4 In ground one, the grievance is that the court below erred in treating the appellant’s claim for payment of the sum of K3,399,562.55 in respect of unpaid activation bonuses and revenue share as special losses or damages. 11.5 A reading of the judgment of the trial court shows that the learned Judge stated that since the appellant had specified the amount of K3,399,562. 55 in its claim, it had a duty to prove the stated amount in the same way that special damages are proved: that is, by producing evidence upon which the court can make an informed determination of the value of the loss. 11.6 The appellant has argued that its claim is not for special damages but one for a debt or liquidated demand arising from the breach of a contract. In terms of Order 6 rule 2(5) of the RSC, the claim was for a debt or liquidated demand which could be ascertained as a matter of arithmetic. 11.7 We have perused the pleadings on record, specifically the writ of summons and the statement of claim by the appellant. The appellant claimed for: -J.38- (A) Payment of the total sum of ZMW 3,399,562.55 being unpaid activation bonuses and revenue share in breach of the Distribution Agreement between the plaintiff and defendant dated 9th May 2015. (B) Payment of any other sums that will be found due and unpaid under the agreement 11.8 In the statement of claim the appellant averred that the respondent had neglected or refused to pay the activation bonus and revenue share despite several reminders. The total amount owing as at 30th April 2015 was ZMW 3,399,562.55. 11.9 The respondent argued that the court below simply pointed out that the matter did not involve special damages. Whilst the appellant contends that the court held that the claim was for special damages. 11.10 A perusal of the judgment at pages J15 to J16 shows that the court stated that the appellant had claimed for the specific sum of ZMW 3,399,562.55 and cited the Philip Mhango case (supra). Further, the court below stated that though this matter does not involve special damages, a plaintiff seeking a specific amount has a duty to prove the amount stated by producing evidence to determine the value of the loss. The court at J19 went on to state that “the Plaintiff in its pleadings has opted to -J.39- specify the claim and has to meet the threshold of proving the amount claimed as required for special loss or damages.” We hold the view that the court treated the claims by the appellant as having the same standard of proof as a claim for special loss or damages claim. 11.11 The claim before the court is clearly not one for where the standard of proving the claim is as one of special loss or damages as held in the of Paul Roland Harrison v The Attorney General (19). It is one that can be ascertained by reference to the contract between the parties or as a matter of calculation. 11.12 In a claim for a debt or liquidated demand, the plaintiff need only state the nature of the claim and the amount being sought. To this end, Order 6 rule 6(1) of the High Court Rules Chapter 27 of the Laws of Zambia provides that: 6(1) Whenever the plaintiff’s claim is for a debt or liquidated demand only, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt or in respect of such demand, and for costs respectively, and shall further state that the defendant can pay the amount claimed and costs- 11.13 Therefore, we find and hold that the court below erred in -J.40- treating the claim for the sum of K3,399,562.55 in respect of unpaid activation bonuses and revenue share, as one which needed a higher threshold of proof as for special damages that had to be specifically pleaded and proved in a satisfactory manner. We find merit in ground one. 11.14 We shall deal with grounds two, three and four together as they are inter-related. The appellant argues that the claim for K3, 399,562.55 should not have been dismissed in view of the respondent’s express admissions of liability to pay, and that the claim ought to have been referred to assessment to determine the actual amount due to the appellant. Further, that judgment should have been entered for the amount admitted. 11.15 Clause 5.1 to 5.4 and 6.1 to 6.3 of the Distributor Agreement clearly shows that the appellant was entitled to a revenue share of 2% "based on the total outgoing revenue net of taxes and regulatory fees on all cumulative active customers in dealer profile”. The activation bonus was calculated at “KI 0.00 to be paid on every new activation made once the customer recharged with a minimum monthly top up of K20.00 within three months.” -J.41- 11.16 The evidence adduced on record is that the respondent was * under the obligation to prepare the distributor’s sales performance for the amount. Clause 29.4 stipulated that: “Zamtel shall at the end of every month prepare a report of the Distributor’s Sales Performance for that month. The report shall indicate the amounts owing to the Distributor by way of remuneration for that month. ” 11.17 The actual amount payable to the appellant could only be ascertained once the respondent prepared a monthly report in terms of Clause 29.4 of the agreement. It is not in dispute that the respondent failed to prepare the monthly sales performance. This amounted to breach of the agreement. The lower court correctly found as above. 11.18 On the issue of whether the appellant proved its claims, recourse is had to the evidence adduced on record. In his evidence-in-chief, PW1 told the court that the appellant had in fact sold more than 40,000 sim cards on behalf of the respondent upon which it was basing its claim. The respondent does not refute failing to produce the monthly sales performance reports. It contends that the said report are available, sitting on IT Systems and should have been -J.42- it subpoened. 11.19 The court below after analyzing the evidence adduced by the appellant namely that it sold 47,000 sim cards from set targets and stubs received from the respondent, held that in the absence of the monthly reports what was due to the appellant could not be ascertained. That no evidence was shown to establish the exact number of sim cards sold and topped up with minimum monthly sum of K20 within three months of activation. The court on the above basis held that the appellant had failed to discharge the burden of proof. 11.20 We take the view that the breach by the respondent, in respect of preparing the monthly reports of the distributor’s sales performance ought not have resulted in the appellant being denied its claim totally. 11.21 The evidence of PW2, PW3, PW5 and DW1 shows that the actual amount due to the appellant as activation bonuses and revenue share is ascertainable by producing the monthly sales performance report. DW2 testified that the appellant was entitled to Revenue Share and Activation Bonus. Upon preparation of reports, the Finance Department would compute -J.43- and communicate to the distributor the amount due. Liability in respect of Revenue Share/Activation Bonus was admitted. That the IT report was the basis the respondent used to calculate the sum of K42,000 admitted as due to the appellant. 11.22 Reverting back to the issue whether the appellant had proved its claim for unpaid activation bonuses and revenue share, we hold the view that the appellant had proved that it was owed money in respect of activation bonuses and revenue share. 11.23 The only issue is the quantum of amount due to the appellant as activation bonuses and revenue share. This amount can only be ascertained or computed from the monthly sales reports which are with the respondent who bore the responsibility of generating the said sales performance reports. Therefore, the court below erred by failing to refer the matter for assessment before the Deputy Registrar to ascertain the sum due in respect of activation bonuses and revenue share. We find merit in grounds two, three and four. 11.24 The respondent in its alternative argument, submitted that should we order assessment of the amount due, only the sums in respect of activation bonuses should be sent for assessment. That the claim for revenue share should be dismissed because -J.44- the contract between the parties provided for payment of the above in form of stock and not cash. 11.25 We reject the argument because, as submitted by the appellant, the contract is no longer in force, the appellant is no longer a distributor of the respondent following breach of contract by the latter. 11.26 In ground five, the appellant argues that the court below ought to have entered judgment in the admitted sum of K42,222.52, under the claim for payment of any other sums that will be found due and unpaid under the agreement. 11.27 As regards the issue whether the respondent had admitted liability in the pleadings in respect of the claims, the respondent in its defence averred that the value of stock due to the appellant for revenue share and activation bonus totaled K42,222.52. This sum was not paid because the appellant allegedly owed the respondent the sum of K900,971.00 11.28 We hold the view that the respondent having admitted the sum of K42,22.52, the lower court erred by not awarding the admitted sum in the judgment under the claim for any other relief ‘payment of any other sum found due and payable’ and referring the dispute balance for assessment. -J.45- 11.29 Ground six, in which the appellant seeks the award of costs on the basis that the respondent admitted that it did not pay activation bonuses and revenue share due to the appellant will be dealt with at a later stage. 12 .0 CROSS APPEAL 12.1 In the cross appeal, three grounds of appeal are raised which will be dealt with as one. The grounds assail the refusal by the court below to award the respondent the sum of K900,971. The issue raised for determination is whether the court below erred in refusing to award the respondent the said sum of K900,971. 12.2 The court below rejected the claimed sum of K900,971.00 which did not add up to the R/D cheques presented in the sum of K936,088.48. The court advanced the following reasons for rejecting the claim, that it had no way of knowing whether the appellant made alternative payments in view of the fact that the respondent continued supplying it airtime from the exhibited dishonored cheques dated 28th November 2011 and 9Lh March 2015. Further that the detailed reconciliation statements adduced by the respondent do not disclose what document it is, had no title and contained other dealer accounts. That the i respondent did not highlight the dishonored cheques that -J.46- totaled to the claimed sum. Being a quantified claim, (special claim) the court below found that the respondent had failed to discharge the burden of proof and dismissed the counter claim. 12.3 The respondent contends that it had offered the appellant a credit facility issuing airtime product^ at a discount of 10%. Postdated cheques equivalent to the airtime ordered would be issued as guarantee by the appellant. The respondent adduced evidence of dishonored cheques allegedly issued by the appellant. 12.4 The Distribution Agreement between the parties under clause 23.3 provided for access to Zamtel credit facility by the Distributor. To access the credit facility, the Distributor would have to provide Zamtel a valid irrevocable guarantee payment for a defined period of not less than one year. Further, Zamtel reserved the right to modify or revise the mode of payment as well as the amount of the guarantee or the terms of any credit facility provided that written notice of such modification or review is given to the Distributor. 12.5 It is not in dispute that no written notice of modification for the payment by postdated cheques for products was adduced. The respondent produced a generated account status report dated -J.47- 23 September 2015 of the balance of K900,971.95 for the period 29th September 2014 to April 2015. In addition, a reconciliation statement for the period 2013 to 2015 was produced which was not in chronological order dated 29th September 2015. The said reconciliation statement does not indicate the dishonored cheque numbers and the amounts. The reconciliation statement at pages 151 to 164 is not helpful. It does not indicate that it solely pertains to the appellant’s account. 12.6 In respect of the issuance of postdated cheques for stock ordered by the appellant, it cannot be disputed that it was a practice employed by the parties. Sila Siyame testified that all stock issued out to distributors including the appellant had postdated cheques issued by the distributor as security for the stock. 12.7 There was evidence adduced of 15 postdated cheques issued in various amounst by the appellant to Zamtel. We refer to the said cheques at pages 346 to 360. The said cheques were deposited by the respondent in its account held at Eco Bank Limited, Thabo Mbeki Branch on various dates. The said cheques accordingly bore the bank stamp by the teller. Two of the said cheques appear to be replacement cheques. The -J.48- cheques total to K936,088, whereas the claimed sum is K900,971=00. Though the respondent did not produce bank statements for the period in issue, evidence was adduced of the dishonored cheques issued by the appellant to the respondent deposited in its bank account. The appellant denied owing the sum of K900,971, without adducing evidence that it had replaced the dishonored cheques issued to the respondent. 12.8 Therefore, the court below erred by stating that she had “no way of knowing whether or not the plaintiff (appellant) made alternative payments, considering the fact that those issued were cheques over a period of time during which the defendant (respondent) appeared to have continued supplying the plaintiff with airtime... ” 12.9 The appellant in evidence did not adduce evidence that the dishonored ‘R/D’ cheques were replaced. The fact that the parties continued in the business relationship despite the dishonored cheques cannot be the basis of refusing to award the respondent the sum in respect of cheques dishonored issued by the appellant. 12.10 We are of the view, that the respondent had proved that the appellant issued dishonored cheques. The court below, having & -J.49- stated that it had no way of knowing whether the dishonored cheques were replaced, ought to have sent for assessment the amount due. The court below erred in refusing to grant the claim by the respondent. 13 .0 CONCLUSION 13.1 For the avoidance of doubt, we hold as follows; that the appellant has proved that it is owed money in respect of unpaid activation bonuses and revenue share. We order that the amount due in respect of activation bonuses and revenue share be determined by the Registrar by way of assessment. The respondent, having admitted the sum of K42,222.52 judgment on admission is entered accordingly. The said sum shall be deducted from the assessed sum found due. 13.2 In respect of the counter-claim, we enter judgment in favour of the respondent and order that the amount due be determined by the Registrar on assessment. The amount found due to the appellant shall be set off against the counter claim and any amount remaining outstanding to any party shall be paid accordingly. -J.50- i 13.3 On the issue of costs, we maintain the order in the court below, r • * the parties shall bear their own costs in both courts. । F. M. Chishimba COURT OF APPEAL JUDGE M. J. Siavwapa COURT OF APPEAL JUDGE N. A. Sharpe-Phiri' COURT OF APPEAL JUDGE