G.D.C Hauliers (Zambia) Ltd v Dubica Motors Ltd (Appeal 54 of 2009) [2012] ZMSC 112 (30 November 2012)

THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: G. D. C. HAULIERS (ZAMBIA) LIMITED AND DUBICA MOTORS LIMITED APPEAL NO. 54 OF 2009 p APPELLANT RESPONDENT CORAM: CHIRWA, AG. DCJ, CHIBOMBA AND WANKI, JJS On 3rd November, 2010 and 30th November, 2012 For the Appellant: Mr. Sangwa of Messrs. Simeza, Sangwa and Associates For the Respondent: Mr. M. Makayi of Messrs. Christopher Russel Cook and Company JUDGMENT WANKI, JS delivered the Judgment of the Court. CASES REFERRED TO:~ 1. Shawaza Fawaz and Another -Vs- The People, (1995) ZR 2, 12. 2. Eastern Co-operative Union Limited -Vs- Yamene Transport Limited, (1988 - 1989) ZR 126. 3. Chuba -Vs- The People. 4. Philip Mhango -Vs- Dorothy Ngulube and Others, (1983) ZR 61. OTHER WORKS REFERRED TO:- 5. Clark and Lindwell on Torts, 17th Edition page 219. When we heard this appeal Mr. Justice Chirwa sat with us. He has since retired. This is therefore a majority judgment. The appellant, GDC Hauliers Limited, being dissatisfied with the Judgment of the High Court given on 1st day of April, 2008 appealed to the Supreme Court against the whole Judgment. In a Writ filed in the Principal Registry, the respondent claimed for damages and consequential losses arising from the damage to its motor vehicle Registration No. 2896/2397T caused by the negligent driving of the appellant or their servant or agent on 2nd day of June, 1998 at Mazabuka on the Great North Road in the Southern Province of the Republic of Zambia. The respondent further claimed from the appellant loss of business for non-use of the motor vehicle. The appellant, in its defence denied that it was guilty of the alleged or any negligence or that the said collision was caused as alleged. The appellant further pleaded a counter claim. The case for the respondent was based on the evidence of three witnesses. Rabson Sakala, PW1, No. 27120 Constable Jonathan Daka, PW2; and No. 4746 Corporal Evaristo Kakoma, PW3. PWl’s evidence was that in June, 1998, he worked for the respondent as a lorry mate. On the fateful day, he was in the J2 truck Registration No. AAK 2386 which was being driven by Skinny Tembo en-route to Mozambique. As they were driving towards the South, they found a road traffic accident and the police who were in control signaled them to pass. Shortly after passing the vehicle they collided with a vehicle coming from the opposite direction. He later found himself in hospital and his driver died. The evidence of PW2 was that in June, 1998, he was assigned to control traffic at the scene where a truck carrying meal mealie had overturned. As he was at the scene, around 06.00 hours he saw the respondent’s truck going towards the South. He gave a signal for it to pass through. Subsequently, he heard a bang; and later, he discovered the respondent’s truck had collided with the appellant’s truck which was coming from the South. The driver of the respondent’s truck Skinny Tembo had died. The appellant’s truck was fast and it left its side and went to the right sweeping the road signs and collided with the respondent’s truck on the right side. The accident happened at a straight portion of the road. J3 PW3’s evidence was that, following the accident involving the appellant’s vehicle and the respondent’s vehicle in which the respondent’s driver, Skinny Tembo died, he arrested the appellant’s driver Thaddeus Ngenda and charged him with causing death by dangerous driving. The appellant’s case was based on the evidence of three witnesses, Thaddeus Ngenda, DW1; and Peter Mshanga, DW2, and Dr. Alfred Ngandu, DW3. The evidence of DW1 was that, on 1st June, 1998, he was driving the appellant’s vehicle towards the North. As he was driving and negotiating a bend, he saw a red/yellow vehicle overturned next to a Stationery Vehicle. He saw triangles and he flashed for the vehicle to respond. He moved closer to the overturned truck. He tried to avoid by going to the left and changed his course and maintained the middle lane and then banged into something. He was driving at 70 kilometres per hour. In front, he saw an overturned truck with triangles about 30 metres away. On his left side, there was a hill and there was a bend on the right side. He thought of braking the vehicle in front and he squeezed J4 himself between the overturned vehicle and the Stationery Vehicle. He managed to go through but hit into the trailer of the respondent’s truck. DW2’s evidence was that on the date in question he was driving his truck en-route to DRC behind DW1. As he was driving he found that DW1 was involved in an accident and he rushed him to the Hospital. He did not see any triangles. It was a foggy morning making the visibility unclear. DW3 gave expert opinion on the nature of the accident. After considering the evidence before it, the trial Court found that the appellant’s driver was to blame for what ensued and allowed the respondent’s claim in its entirety with costs. The trial Court also allowed the specific prayer for damages of US$29,000.00 with interest and referred the un-liquidated damages to the Deputy Registrar for assessment. The appellant has advanced four grounds of appeal, as follows 1. The learned trial Judge erred both in law and in fact when he found that the appellant failed to exercise more care and to keep a better look out thereby resulting in the collision. 2. The learned trial Judge erred both in law and in fact when he found that little or no weight would be attached to the expert ! J5 opinion as it was rendered 6 years after the accident had occurred. 3. The learned trial Judge erred both in law and in fact when he found that on a balance of probabilities, the appellant was to blame for the accident. 4. The learned trial Judge erred both in law and in fact when he held that the respondent was entitled to its claim in its entirety. In support of the foregoing grounds of appeal, Mr. Sangwa, Counsel for the appellant filed heads of argument on which he entirely relied at the hearing of the appeal. In relation to the first ground of appeal, Mr. Sangwa contended that the finding of the Court on this point was a complete disregard of the pleadings filed by the parties, which the Court below ought to have considered. Counsel pointed out that at pages 27 and 28 of the Record of Appeal, the respondent alleged that the accident was caused due to the negligence of the appellant’s servant or agent when he failed to stop when it was necessary to do so due to obstruction and gave the particulars of negligence as:- (a) Driving too fast and failing to heed traffic signs warning him to exercise caution due to an earlier accident which had blocked the road; (b) Failure to exercise a proper look out for other road users such as the plaintiff when he failed to observe that the Police J6 Officer at the scene of the accident had given the plaintiff the right of way to drive on. (c) Failure to apply his brakes in time or at all or so as to steer or control his vehicle as to avoid the said collision. It was emphasized that, these allegations are denied by the appellant and averred in the defence and counter claim, which appears at page 30 of the Record of Appeal and which was not adequately considered. Counsel submitted that these are the issues that the Court was expected to identify and address in the Judgment. He contended that the appellant was found liable without these issues being addressed. It was the duty of the Court below to determine whether the plaintiff had established the particulars of the negligence alleged before making any finding of liability. In support of the second ground of appeal, Mr. Sangwa argued that the fact that an expert’s opinion on a matter has been sought after some years is no cause to reject the opinion. It was contended that the Court below ignored what this Court said in SHAWAZA FAW AZ AND ANOTHER -VS- THE PEOPLE. U) “When dealing with the evidence of an expert witness a Court should always bear in mind that the opinion of an expert is his own opinion only, and it is the duty of the Court to come to its own conclusion based on the findings of the expert witness. As we said in Chuba -Vs- The People, J7 nt the opinion of a handwriting expert must not be substituted for the Judgment of the Court. It can only be used as to guide, albeit a very strong guide, to the Court in arriving at its own conclusion on the evidence before it. The same thing applies to the opinion of other expert witnesses.” It was submitted that, the Court below was therefore, in error to have discounted the testimony of the expert witness on the premise that it was rendered six years after the accident. In relation to the third ground of appeal, Mr. Sangwa repeated what he said in support of ground one of appeal. He emphasized that the Court below failed to provide a Seasoned Justification for the conclusion it reached. That the Court below was at law required to weigh the evidence provided by the parties to the proceedings and make the necessary determinations. Reliance was placed on CLARK AND LINDSELL ON TORT (5> where the authors have summed up the requirements which must be met before a finding of negligence can be made by a Court. They state that:- “ Requirements of the tort of negligence. There are six requirements, namely: (1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the type of person to which the plaintiff belongs by the type of person to which the defendant belongs is actionable; (2) careless behaviour by the defendant, i.e. that it failed to J8 measure up to the standard and scope set by law; (3) a casual connection between the defendant’s careless conduct and the damage; (4) fore see ability that such conduct would have inflicted on the particular plaintiff the particular kind of damage of which he complains. Requirements (3) and (4) perform different functions and are determined by applying different tests. Requirement (3) ascribes causal responsibility to the defendant, whereas the function of requirement (4) is to limit actionability by the plaintiff by determining whether he should have an action against the defendant. When these four requirements are satisfied, the defendant is liable in negligence. Then and only then do the next two considerations arise, namely (5) the extent of the responsibility for the damage to be apportioned to the defendant where others are also held responsible; and (6) the monetary estimate of that extent of damage. There is no magic in the order as set out, nor should it be supposed that Courts proceed from points (1) to (6) in sequence. Rarely, if ever, does a dispute involve all six. In a great many the point at issue is one or other of them, the rest being obvious and not even raised. The above, therefore, is only a presentation of the ingredients of liability for the purpose of exposition.” It was contended that, the Court below found the appellant liable for negligence without addressing any of these ingredients. In relation to the fourth ground of appeal, it was contended that the Court below failed to provide a reasonable basis for holding that the respondent was "entitled to its claim in its entirety.” It was submitted that where a party has been found liable it does not follow that the damages claimed must follow as a matter of right. The respondent has to prove the damages J9 claimed to have been suffered and for which he seeks atonement from the Court. Counsel argued that although the claims of US$29,000.00 damages caused to the motor vehicle and US$200 per day for loss of business from 14th July, 1998 were upheld as claimed in the respondent’s statement of claim filed in Court on 5th November, 1998, there is no evidence to show how the sum of US$29,000.00 was arrived; and how the loss of US$200 was incurred and did not specify the period this loss was to be borne by the appellant. The case of EASTERN CO-OPERATIVE UNION LIMITED -VS- YAMENE TRANSPORT LIMITED (2) was cited where we said:- “We find that, in keeping with the principles which require a plaintiff to mitigate his loss, a plaintiff who has a profit making chattel damaged beyond economic repair is under obligation to replace that chattel and in this regard the poverty or otherwise of the plaintiff is quite irrelevant. The damages must be assessed therefore, on the basis that a prudent plaintiff would have taken steps to replace the chattel which has been damaged. We take into account the economic situation which prevails in this country and which prevailed in the years 1980 and 1981 and consider that, the plaintiff should have replaced the bus in this case much earlier than June, 1986, when Judgment was delivered.” It was pointed out that there was no assessment of how the sum of US$200 per day was arrived at, although it was upheld by the trial Court. There is also no evidence showing what this J10 amount was; whether it was net profit that is, the amount generated by the vehicle on a daily basis net of expenses, or otherwise. Mr. Sangwa further contended that, the Court below was very casual in upholding the respondent’s claims and yet there are serious legal issues which ought to have been considered before the award of damages could be made. Reference was made to CLARK AND LINDSELL ON TORTS (5) where the authors have stated that:- “59. Damages for loss of use. In addition to having to pay the cost of repairing his damaged goods the owner will also be deprived of their use during the period needed for their repair, and for this loss he is entitled to recover. The question is what is the use which, but for the wrong, he would have had of his goods, and what (excluding the element of uncertain and speculative and special profits) he would otherwise have earned by their use. Thus, profits which would in any event have been lost because, for example, other necessary repairs were to be carried out are not recoverable. 60. It is generally reasonable for the owner of a damaged chattel to avoid any loss of profits by hiring a substitute for the period during which his own is under repair, in which case he is entitled to recover the cost of hiring as damages for loss of use. This is however, subject to two qualifications, namely, that the actual hiring of a substitute must be strictly pleaded and proved as special damage and that the hiring must be reasonable. The principle is that, the plaintiff may recover what his chattel would have earned if it had not been damaged, not that he may recover such out of pocket expenses as he may actually have incurred, and if, for example, the cost of JU hiring exceeds the profit which could have been earned, only the latter may be recovered. Moreover, if as a result of hiring a substitute the owner of the damaged chattel is enabled to make a greater profit than he would have done if his on chattel had not been damaged, that additional profit must be set against his loss.” It was submitted that the Court below should have assessed the amount of money generated by the vehicle that was involved in the accident and then as stated by this Court in YAMENE TRANSPORT (2) case, the period that this amount was to be paid, which is the period within which, taking into account the economic conditions applicable at the time, it would have taken the respondent to replace the motor vehicle or put it back on the road. It was argued that in this case, it was never the respondent’s case that the vehicle was completely damaged but that the sum of US$29,000.00 was the value of the damage caused to the vehicle, alternatively, what it would take to repair it. It was pointed out that at pages 47 to 52 of the Record of Appeal are quotations obtained reflecting how much it was to cost to repair the vehicle. These quotations are in Zambian Kwacha and there is no J12 evidence showing their connection with the sum of US$29,000.00. In the light of what is stated above, it was Counsel’s prayer that the entire Judgment of the Court below, be set aside and the matter be remitted back to the High Court to be tried by another Judge. On behalf of the respondent, Mr. Makayi filed the respondent’s heads of argument on which he relied at the hearing of the appeal. In response to ground one of appeal, Mr. Makayi pointed out that the trial Judge heard six witnesses in this matter. Of these witnesses, two were Police Officers, one an expert witness and two drivers. Counsel argued that the trial Judge, upon hearing all this evidence, and attending to a visit of the accident scene had enough evidence to convince him to find in favour of the respondent herein. The allegations that were traversed in the statement of claim as produced in the Record of Appeal, by the respondent were proved to the Court’s satisfaction. J13 Counsel contended that the trial Court did address all the issues traversed in the pleadings and that this can be seen from the fact that the Court summarized the claim, defence and counter claim in the preliminary stages of his Judgment, and went on to refer to various testimonies that he relied on in his Judgment and finally, based on the evidence, made a conclusion and finding of fact that the appellant was negligent and liable for the damage caused in the accident. He argued that the trial Court had an opportunity to hear evidence of the Police Officer, PW2, who actually witnessed the accident and he gave his opinion as a Police Officer as to who was at fault. It was submitted that with such overwhelming evidence of who was the cause of the accident it only follows that the Court found that the appellant failed to exercise more care and to keep b a better look out thereby resulting in the collision and as such, the particulars of the negligence were established. It was finally submitted that in the light of the evidence that was presented to the trial Court, the appellant’s first ground of appeal must fail. J14 In response to ground two of appeal, Mr. Makayi cited the case of SHAWAZA FAWAZ AND ANOTHER -VS- THE PEOPLE (D where we held that:- “When dealing with the evidence of an expert witness a Court should always bear in mind that the opinion of an expert is his own opinion only, and is the duty of the Court to come to its own conclusion based on the findings of the expert witness. As we said in Chuba -Vs- The People, the opinion of handwriting expert must not be substituted for the Judgment of the Court. It can only be used as to guide, albeit a very strong guide, to the Court in arriving at its own conclusion on the evidence before it.” Counsel argued that this principle simply states that the opinion of an expert witness must not be substituted with the Court’s own decision as such opinion merely guides or assists a Court to come to its own conclusion. He contended that the trial Judge who had the opportunity to go to the scene of the accident and hear the testimonies of eye witnesses weighed the value of the testimony of the expert witness who gave his expert opinion based only on information obtained from the appellant and made a finding that the probable value of the expert testimony was very weak, as the Court took into account the lapse of time between the period of accident and J15 when the expert was giving his opinion and what the expert used to come to his conclusion. It was further argued that the appellant’s reliance on the principle laid out in the SHAWAZA FAWAZ f1) case does nothing for their argument but merely bolsters the respondent’s position that the trial Judge was on firm ground and within his jurisdiction to put little or no weight to the evidence of the expert witness as the Court below had no mandatory obligation to agree with the expert opinion. In any event, Counsel pointed out, it can be seen from the testimony of the expert witness during cross-examination that the expert’s opinion posed more questions than answers to assist the Court and it is therefore, no wonder that the Court placed little or no weight to the expert’s evidence. He therefore, prayed that ground two must fail. In response to ground three of appeal, Mr. Makayi noted « that the trial Court heard witnesses, three of whom were eye witnesses and it visited the scene of the accident. It follows that the Court had sufficient evidence to determine liability in this matter. J16 Counsel pointed out that, the appellant has recited CLARK AND LINDSELL ON TORTS, 17* Edition & which outlines the requirements of tort of negligence. The authors said:- “.... There is no magic in the order as set out, nor should it be supposed that the Courts proceed from points (1) to (6) in sequence. Rarely, if ever does a dispute involve all six. In a great many the point at issue is one or other of them, the rest being obvious and not even raised. The above, therefore, is only a presentation of the ingredients of liability for the purpose of exposition.” It was argued that based on the evidence, the trial Court must have certainly put its mind to one, some or all of these ingredients such as the existence in the law of a duty of care situation i.e., the situation where the law attached liability to the appellant and also a casual connection between the appellant’s conduct and the resultant damage. Counsel noted that the trial Court also referred to the said authors in its Judgment at pages 16 and 17 of the record to demonstrate how the appellant failed in its duty to drive * appropriately and there being an onus on the appellant to show appropriate reason why its truck was on the wrong side of the road (the right side) as was shown by the evidence before it. And based on the said evidence, the Court did address the necessary J17 ingredients of negligence and attached such liability to the appellant. The appellant’s third ground of appeal, therefore, must fail. In response to ground four of appeal, Mr. Makayi pointed out that the respondent claimed a special loss of US$29,000.00 which the trial Court upheld. He argued that the Lower Court had before it, as shown at pages 47 to 52 of the record, quotations for the repair of the damaged vehicle and trailer from reputable entities. The appellant did not refute these quotations in the trial Court, during trial nor in any submissions either. It follows that, based on the evidence before the trial Court which included a police report that stated that there was extensive damage to the respondent’s vehicle and the quotation exhibited, it did come to the correct conclusion that the respondent did prove and was entitled to the loss claimed. The case of PHILIP MHANGO -VS- DOROTHY NGULUBE AND OTHERS & was cited where we held that:- “Any party claiming 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.” J18 Counsel argued that the Court clearly did take the position that the claim of US$29,000.00 as at the time of demand of the same by the respondent did equate to the amounts stated in the quotations that were presented to the Court which were to the tune of over K140,000,000.00. Mr. Makayi conceded that the sum of US$200 should be subjected to assessment. Counsel argued that the evidence that was presented to the Court below, if presented to any other Court of competent Jurisdiction, the other Court would still find that the appellant was responsible for the accident and therefore, liable for any and all claims made by the respondent. It was emphasized that since the Court below did direct that the un-liquidated claims which were awarded be referred to assessment, had the appellant requested the respondent that the issue of US$200 per day be part of Judgment that be referred to assessment, the respondent would have gladly obliged to such * request and have the loss of US$200 per day assessed. It was also pointed out that the Court below only referred to the specific damages that it awarded and not any other specific claims. It was J19 further argued that any other monetary claims ought to have been subjected to assessment as ordered by the Court below. In relation to the appellant’s prayer for retrial, it was argued that it is not necessary as the outcome would be the same and the only clarity that would be required from the Court is simply what claims should be assessed and what claims should be granted as specific damages. From the foregoing arguments, Counsel submitted that he was of the strong view that all the appellant’s grounds of appeal must fail and the appellant’s prayer that the entire Judgment of the High Court be set aside and the matter be remitted back to the High Court to be tried by another Judge must be dismissed. In reply, Mr. Sangwa submitted that he would like to make few comments on the respondent’s heads of argument. He argued that as would be noted from the Judgment, there is nothing in the Judgment to indicate that the Court below did evaluate the evidence of the witnesses. Ordinarily, that is what a trial Court is expected to do and make a finding of fact. That did not happen. J20 Counsel contended that the respondent is trying to fill up gaps for the Court below. All the assertions made by the respondent cannot be supported. He pointed out that the Court below discounted the expert evidence because it came six years after and not on the principles laid by the Court in the FAWAZ f1) case. The same is true what is advanced in ground three of appeal. Referring to page 4 of the respondent’s heads of argument, Counsel submitted that that is the assertion by the respondent. There is nothing in the Judgment to indicate issues of fact which made the Court arrive at the decision. There is also nothing in the Judgment to indicate what issues the Court below took into consideration to determine liability. The Court awarded the damages on the assumption that the respondent had spent the amount on expenditure. There is no evidence to prove such expenditure as non-was called to prove that. What was presented, were quotations. The Court awarded US$29,000.00 on assumption that the said amount had been spent. The Judgment cannot therefore, be allowed to stand. J21 We have considered the grounds of appeal, the appellant’s heads of argument; the respondent’s heads of argument; the submissions on behalf of the parties; and indeed the Judgment of the Court below that has been appealed against. We have also considered the authorities referred to. In ground one of the appeal, the Court below has been attacked when it found that the appellant failed to exercise more care and keep a better look out thereby resulting in the collision. It was argued that the finding of the Court on this point was in complete disregard of the pleadings filed which the Court below ought to have considered. On the other hand, it was argued that the trial Court did address all the issues traversed in the pleadings. According to the pleadings as at page 27 in the Record of Appeal, the respondent gave the particulars as follows: - Driving too fast and failing to heed traffic signs warning him to exercise caution due to an earlier accident on the road which had blocked the road. 2. Failure to exercise a proper look out for other road users such as the plaintiff when he failed to observe that the Police Officer at the scene of the accident had given the plaintiff the right of way to drive on. 3. Failure to apply his brakes in time or at all or so as to steer or control his vehicle as to avoid a collision. J22 4. By reason of the matters aforesaid the plaintiff claims damage and consequential losses due to non-use of the vehicle/’ The appellant in its defence in paragraph 2 at page 30 stated that: - “2. The defendant denies that it was thereby, guilty of the alleged or any negligence or that the said collision was caused as alleged in paragraph 2 of the statement of claim.” The Court below in its Judgment at page 17 lines 10 to 14 stated that:- “___ It seems to me that the defendant incurs a light burden why he chose to do what he did by going to the wrong side of the road as rightly pointed out by the learned authors Clark and Lindsell (5>. The Defendant would be expected to exercise more care and to keep a better outlook, when as in the instant situation he failed to do so leading to the collision which ensued.” The foregoing statement and finding by the Court below is pursuant to the particulars of negligence in paragraph 2, ‘failure to exercise proper look out for other road users__ On the evidence and as conceded by DW2, the appellant’s driver, that he left his side, the Court below cannot be faulted for finding as it did that the collision was caused by the appellant. Further, we have found that leaving ones side of the road and failing to exercise a proper look out amounts to negligence. J23 The Court’s findings cannot therefore, be said to be in incomplete disregard of the pleadings. In any case, the finding attacked is a finding of fact which as we see is supported by the evidence. No appeal can therefore, lie against the said finding of fact. In the circumstances, we find no merit in ground one. In ground two of the appeal, the appellant has attacked the trial Court when it found that little or no weight would be attached to the expert evidence as it was rendered six years after the accident had occurred. It was argued that that an expert’s opinion on a matter has been sought after some years is no cause to reject his opinion; and that the Court below was therefore, in error to have discounted the testimony of the expert witness on the premise that it was rendered six years after the accident. On behalf of the respondent, it was argued that the expert opinion merely guides or assists a Court to come to its own conclusion; and that the trial Judge who had opportunity to go to the scene of the accident and hear the testimonies of the eye witnesses weighed the value of the testimony of the expert J24 witness who gave his expert opinion based only on information obtained from the appellant made a finding. We have considered ground two; and the arguments on behalf of the parties and indeed the authority referred to. The Court below in its Judgment at page 15 of the record lines 9 to 12, stated that:- “___. His opinion was sought well after the accident had occurred specifically on 11th August, 2004, six (6) years after the accident. Clearly the probative value of his testimony would be weaker than if it was given almost contemporaneous with the accident rather than six (6) years after the accident And further, at page 17 in lines 15 to 18, the trial Judge said:- “As I stated at the outset, the expert evidence seems to be weaker coming, it did six (6) years after the accident. I would attach little or no weight to the expert evidence so advanced.” As would be noted from the foregoing quotations, the trial Judge, upon hearing the evidence before him and visiting the scene of the accident, exercised his discretion as to how much weight to attach to the expert’s evidence considering that the expert’s opinion was sought six years after the accident and the expert did not even visit the scene immediately after the accident but formed his opinion based on information supplied to him. J25 The trial Judge, in our firm view, did not depart from our p guidelines in the case of SHAWAZA AND ANOTHER -VS- THE PEOPLE. W In the circumstances, we find no merit in ground two. It is, accordingly, dismissed. In ground three of the appeal, the appellant has attacked the trial Court when it found that on a balance of probabilities, the defendant was to blame for the accident. The appellant repeated what it said in support of the first ground; and that the Court below failed to provide a reasoned justification for the conclusion it reached. On behalf of the respondent, it was argued that the trial Court heard witnesses, three of whom were eye witnesses and the trial Court visited the scene of accident. It follows that the Court had sufficient evidence to determine liability. We have considered ground three; the submissions on behalf of both parties, and the Judgment of the Court below. We have found that the Court based its decision on the evidence of three eye witnesses two of whom were Police Officers. Perusal of the evidence has revealed that the finding of the Court J26 was supported by the evidence. The trial Court cannot therefore be faulted for holding as it did, that:- “On the evidence I am satisfied on the evidence on the balance of probabilities that the defendant driver was to blame for what ensued.” Again, the appellant is contesting the findings of fact made upon evaluation of the evidence. We cannot upset them because it has not been demonstrated to us that the findings were perverse or made on a misapprehension of facts. In the circumstances, we find no merit in ground three which is, accordingly, dismissed. In ground four of appeal, the trial Court has been attacked when it held that the plaintiff was entitled to its claim in its entirety. It was argued that the Court below failed to provide a reasoned basis for holding that the respondent was ‘entitled to its claim in its entirety.’ That a party has been found liable, it does not follow that the damages claimed must follow as a matter of right. The respondent has to prove the damages claimed to have been suffered and for which he seeks atonement from the Court. J27 On behalf of the respondent it was argued that the respondent claimed a special loss of US$29,000.00 which the Court upheld; and that the Lower Court had before it, as shown at page 47 to 52 of the record, quotations for the repair of the damaged vehicle and trailer from reputable entities. The respondent, however, conceded that the sum of US$200 be subjected to assessment. We have considered ground four of appeal; the arguments on behalf of the parties; the trial Court’s Judgment and indeed the authorities cited. We have noted that the trial Court, at page 18 of the Record of Appeal, stated starting from line 2 that:- “The plaintiffs claim is allowed in its entirety with costs to be agreed upon in default to be taxed. As to the specific prayer for damages such as repairs incurred by the plaintiff in the shape of US$29,000.00, I would allow that claim with interest effective from 5th November, 1998 at the current rate to the date of this Judgment and thereafter 6% interest. Un-liquidated damages would be subject to assessment by Deputy Registrar.” As would be noted from the foregoing, the trial Judge did not in the Judgment state how he came to the amount of US$29,000.00 as there was no evidence. J28 In the circumstances, we find merit in ground four, it is, accordingly, allowed. The amounts determined by Court below are set aside. We direct that all damages be assessed by the Deputy Registrar. The appeal on grounds one, two and three is dismissed. Ground four is upheld. Each party to bear its own costs. D. K. Chirwa, ACTING DEPUTY CHIEF JUSTICE H. Chibomba, SUPREME COURT JUDGE SUPREME COURT JUDGE J29