Ju Fred Lungu Matenda v Road Development Agency (Appeal 132 of 2016) [2019] ZMSC 347 (6 August 2019)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 132/2016 SCZ/8/144/2015 BETWEEN: JU FRED LUNGU MATENDA AND ROAD DEVELOPMENT AGENCY Coram: Hamaundu, Malila and Kaoma, JJS On 9th juiy 2019 and 6th August, 2019 For the Appellant: Mr. A, D. Mumba of Messrs A. D. Mumba & Associates For the Respondent: Mr. R. Ngulube of Messrs Tembo Ngulube & Associates JUDGMENT Malila, JS delivered the judgment of the court. Case referred to: 1. Halsey v. Esso Petroleum Company Limited (1961) 2 ALL ER 145 2. St. Helen’s Smelting v. Tippings (1865) 13WR 1083; 11 ER 1483 3. Schenck et al v. The Ontario (1981) Can L111797 4. Wilson Masauso Zulu v. Avondale Housing Project Ltd (1982) ZR 172 5. J. Z Car Hire Ltd. v. Chale & Sciroco Enterprises Ltd (SCZ Judgment No. 20 of2002) 6. Mobil Oil Zambia Limited v. Ramesh M. Patel (1988-1989) ZR 12 7. Nkata & Others v. Attorney General (1966) ZR 124 J2 8. Locabail (UK) Ltd v. Bayfield Properties Ltd & Another (2002) 2 WLR 870 9. William Harrington v. Dora Siliya & Another (SCZ Judgment No. 14 of 2011) 10. Attorney General v. Kakoma (1975) ZR 21 11. Attorney General v. Morcus Kapumba Achiume (1983) ZR 1 12. Parter v. Magill (200) AC 2 AC 375 (HL) Legislation and Other Books referred to: 1. Public Roads Act No. 12 of2002 2. Winfield & Jolowicz on Tort 18th Edition at page 1007 (para 22-5) Of late, a persistent headache for people who use motorised transport to move from one place to another within the City of Lusaka, is traffic congestion on city and township roads. In the face of heavy traffic jams on these roads, the redesigning, reconfiguration and construction of by-pass roads in Lusaka and surrounding areas, while inevitably causing some inconvenience in the short term, has been largely greeted with a sense of welcome relief by most road users. When the respondent, commenced construction, in the first half of 2008, of a by-pass road off Lusaka-Kafue Road, through the commercial and residential areas of Kamwala township, up to Chilimbulu Road junction, many members of the public, particularly road users, were enthused and took the development in the spirit of hopeful expectation of relief from the frustrations arising from road J3 traffic congestion. This, however, did not appear to have been the case with at least one inhabitant of Kamwala Township: the appellant. For him, the road construction turned out to be an inconvenience, an irritation and hurtful to his property and his family’s health. His residence, which he personally owns, was at all material times located at the junction of Chongwe and Bombay Roads in Kamwala Township. The by-pass road was designed to pass alongside the appellant’s dwelling house along Chongwe Road, onto Luapula Road and through to Chilimbulu Road junction. The appellant also owned an automobile, a Mercedes Benz car, which he regularly drove and, using an unobstructed ingress/egress area along Chongwe Road, would drive out of his yard and into it, where he ordinarily parked the vehicle for the night. The construction of the by-pass road by the respondent or its agents soon became a source of considerable discomfort and annoyance for the appellant. According to him, in its undertaking of the road works, the respondent engaged in excavating the earth, noisily blasting stones, removing, replacing and resurfacing the old J4 gravel and tarring it using heavy equipment which the respondent allegedly positioned, rather inconsiderately, in front of the appellant's house. Thick dust was emitted from the blasting of the stones and from other road works. Those works are reported by the appellant to have caused tremors which heavily shook his house, resulting, according to him, in cracks to the structure, thus reducing what he called his house’s life span.’ He also grumbled that his health and that of his family were severely endangered by the thick dust produced by the road works. Often, when the blasting was in progress, the appellant, his family and his visitors would, according to the appellant, take cover by staying indoors and thereby not attending to normal or routine activities, including going for work or school. Over and above all this, the appellant claimed to have been unduly hindered in the exercise of his right to ingress and egress to his property by foot and by car. The appellant also complained that he was, by the activities of the respondent as particularised, denied, owing to the obstruction of the ingress/egress passage into his yard, the use of his motor vehicle for a period of ten (10) months from J5 March 2008 to December 2008, during which the said motor vehicle had to be parked at his residence. The consequence of parking the motor vehicle, according to the appellant, was that its insurance cover and road tax license expired without their being used for that period. This led the appellant to fail ‘to normally renew the said insurance policy cover and road tax upon their expiry because of the uncertainty of the period of the defendant’s road development program along Chongwe Road.’ Satisfied that the respondent had callously committed tortious wrongs against him and his family and was, at any rate, in breach of its statutory duty towards him and others in his position, to exercise all reasonable care and skill as a road designer, engineer or supervisor of the subject road development and construction works, the appellant sought to engage the respondent into a settlement of his grievance by suggesting that he be appropriately compensated. The respondent declined any such suggestion, protesting its innocence, and referring the appellant to Part II of the Public Roads Act No. 12 of 2002, instead. J6 From the appellant’s narration of events, it was only at the end of December 2008, that the respondent finally opened the access to the appellant’s gate after constructing a substandard bridge on the trench that had been created to separate the appellant’s premises from the newly tarred Chongwe Road. This bridge, according to the appellant, is so inferior in standard that it allows rainy water to collect over it, thereby further inconveniencing the appellant and his family. It was the foregoing circumstances that so annoyed the appellant that he took out an action in the High Court, claiming general and exemplary damages for loss of access easement to his property for ten (10) months; for nuisance caused to his house and for unreasonable restriction of his movement. The respondent denied most emphatically that it was liable in the sense claimed or at all, stating that adequate and timely public notices of the road works had been duly issued and publicly disseminated. Furthermore, a licensed blaster that carried out the blasting only did so for five days and this posed no danger to the J7 appellant’s house. Additionally, reasonable steps were taken to prevent the dust arising from the construction works. The matter was heard by the High Court which dismissed the claim in its entirety, holding that obstruction for each affected household to access their residences was minimal and this happened after due public notification had been given. On the appellant’s claim for damages for nuisance, the learned High Court judge held that there was no evidence adduced to support the claim and therefore that no damages were award able under that head. Concerning the claim for damages for denial of access, the court held that on the evidence, the appellant was not denied access to his residence as alleged for ten (10) months. The short inconvenience suffered was inevitable in a built-up area for works that fell within the necessary statutory obligations of the respondent to undertake. The court dismissed the claims relating to non-renewal of the insurance policy or road tax of the appellant’s automobile on the basis that nothing in the carrying out of the construction works by the respondent was outside its statutory obligation. The appellant, J8 according to the judge, had failed to discharge the burden of proving the respondent’s liability. The appellant has now launched the present appeal, premised on five grounds, rather four, to wit: 1. The lower court erred both in law and in fact in failing to seriously take into account provisions of the Public Roads Act, being the principal law under which the respondent operates particularly as relates to section 47 thereof to which the said respondent was obliged to react after the appellant submitted his claims in writing as required by the law established. 2. The lower court erred in fact and in law contrary to the evidence on record by stating at page J20 from line 8 and further on that “On the uncontested evidence, that no other person in the whole area other than the plaintiff raised any such complaint, I have no basis for finding the plaintiff was denied access to his residence for ten months as claimed. I find instead the interference could only have been for the period...” when it found that the appellant herein then as PW1 was the only person who commenced an action by failing to take into account that this was not subject to a group action in the circumstances. 3. The lower court erred both in law and in fact by being heavily biased in favour of the defendant mostly on assumptions and failing to adjudicate on the claim for general and exemplary damages in its judgment to the disadvantage of the plaintiff. 4. The lower court erred both in law and in fact in holding that water was actually being sprinkled while the construction works were being done based only on the evidence of DW1 who was not present J9 at the construction site at all the material times contrary to the evidence on record. 5. Such other grounds as may be filed and advanced upon perusal of the case record. The substance of the appellant’s argument under grounds one and two, which were argued together, is that the lower court did not pay due regard to section 47 of the Public Roads Act. That section enjoins any person who seeks compensation from the respondent arising from the exercise by the latter of the powers conferred on it by the Act, to submit his claim in writing setting out the nature of the interest and the details of the compensation sought. The quantum of compensation, in terms of that section, would be agreed and if not agreed it may be settled by arbitration. The appellant submits that he wrote to the respondent twice, requesting that an assessment of damages in respect of damage to his house, be undertaken and demanding compensation for such damage. The contention of the appellant is that it was wrong for the lower court to have held that, on the uncontested evidence, other than the appellant, no other person in the whole area, had raised any such complaint against the respondent, and that accordingly she had J10 no basis for finding that the appellant had been denied access to his residence for ten months as he claimed. In so holding, argued the appellant, the lower court failed to draw a distinction between a group action and an individual action. Counsel further submitted that section 47 of the Public Roads Act addresses or contemplates individual actions. The whole justification for the finding that the appellant was denied access to his residence was therefore wrong. The appellant was, in any case, entitled to seek a legal remedy in his own right as his circumstances were peculiarly different. Counsel for the appellant cited the case of Halsey v. Esso Petroleum Company Limited!1) where it was pointed out that the character of the neighbourhood is only a factor in so far as it relates to discomfort and inconvenience, not damage. We were also referred to the case of St. Helen’s Smelting v. Tippings!2) where it was established that a nuisance resulting in material injury or financial harm cannot be excused, regardless of the character of the neighbourhood in which they occur. Jll Ground three alleged bias on the part of the lower court judge on the basis of what the appellant called 'assumptions.’ Having made this submission, counsel for the appellant went straight into citing the Canadian case of Schenck et al v. The Ontario^ where the Supreme Court of Ontario found the respondent liable for the salt desiccation to apple trees as a result of the salt sprayed by traffic on the highways boar dering the appellant’s orchards. The respondent’s plea was that the use of road salt was in the public interest. Having cited this authority, the appellant’s learned counsel then contended that the lower court was biased against the appellant when it concluded in favour of the respondent on the doubtful evidence of DW1 who testified that the length of the road under construction was 'about 2 kilometers’ which statement, according to counsel, was not confirmed by any other witness. Ground four was on a short factual point. The appellant attributes error on the part of the lower court in its holding that water had actually been used to sprinkle the construction works based on the evidence of DW1. This witness, according to the appellant’s J12 learned counsel, was not present at the construction site at all material times as the evidence on record will show. The substance of the submissions of counsel on this ground were simply that first, DW1 was called as an expert witness when in fact the evidence regarding sprinkling of water did not require expert knowledge as it was purely factual; second, the evidence of DW1 was not corroborated; third, DW1 was not present at the construction site at all material times as he had gone on leave for 3-4 weeks; fourth, besides the emission of dust, the appellant had also claimed that there were splinters of stone flying to his dwelling premises which the respondent failed to control. Counsel identified the circumstances in which expert evidence is required before submitting that the evidence of DW 1, especially his opinions, should not have been taken into account as he was not testifying as an expert witness. In any case he was away on leave for a period of 3-4 weeks when the offensive works were being undertaken. J13 Counsel for the appellant also complained that the lower court judge had made conclusions based on a finding that water had actually been sprinkled at the construction site contrary to the evidence of PW1 who actually experienced the events along with PW3, both of whom testified as to the excessive dust emitted. The court chose instead, contrary to reason, to believe DW1 who had been absent on leave. We were urged to uphold the appeal. The learned counsel for the respondent opposed the appeal on multiple grounds. In regard specifically to ground one of the appeal, counsel contended that the learned trial judge did in fact address her mind to the Public Roads Act and, more particularly, section 47. It was contended that the interpretation by the appellant of the provisions of section 47 was isolated when it needed to be understood within the context of the preceding sections of the Act. Section 47(1) of the Act enacts as follows: Any person affected by the exercise of any of the powers conferred upon the Agency by section forty-four or forty-five who wishes to claim compensation in respect of the exercise of powers shall submit in writing, within thirty days of the date of the publication of any item in section forty-four or forty-five as the case may be, a statement J14 setting out the nature of the person’s interest, details of the compensation claimed in respect of land to be taken. Improvements likely to be removed or damaged and any expense or loss which may reasonably be incurred or suffered directly as a result of the exercise of those powers. Provided that the agency shall not reject any land claim only on account of the statement not having been submitted within the period of thirty days if, in the Director’s opinion, the statement could not reasonably have been submitted within that period. The learned counsel for the respondent had earlier on in his submissions reproduced sections 43, 44 and 45 of the Act. His contention was that what section 47 does is to provide for compensation to land owners that are misplaced from their land by virtue of section 43 and 44 of the Act, or persons having any rights over or in land in respect of which a proposed road may run where such land is taken from them. Mr. Ngulube referred us to the judgment of the trial court where the judge found, as a fact, that the road in question was an already existing road that was merely being upgraded from gravel to bituminous. The appellant did not suffer any loss of land or any right over any land as a result of the road works. J15 Counsel submitted that section 47 of the Act, does not capture claims such as those of the kind allegedly suffered by the appellant namely, damage to his house, which the appellant had in any case failed to prove. The learned counsel also submitted that the appellant merely contends that he wrote to the respondent requesting the respondent to assess damage caused to his house, but the respondent neglected to do so. Mr. Ngulube submitted that it was not enough to merely allege damage to his house; the appellant ought to have proved it in keeping with the adage that he who alleges must prove. He cited the case of Wilson Masauso Zulu v. Avondale Housing Project Ltd^) and J. Z Car Hire Ltd. v. Chale & Sciroco Enterprises Ltd® as authorities for that submission. Turning to ground two of the appeal the respondent’s learned counsel submitted that the lower court judge did not err as alleged, when she found on the uncontested evidence that no other person in the whole area other than the appellant raised any such complaint; that this was a finding of fact made on the basis of the evidence adduced before it. Counsel referred to the cases of Mobil Oil Zambia J16 Limited v. Ramesh M. PateV6) and Nkata & Others v. Attorney General^ on the position of this court in regard to reversing findings of fact by a lower court. He submitted that the conditions set forth in case authorities for an appellate court to disturb the findings of fact had not been satisfied in this case. We were urged to dismiss this ground of appeal. The respondent’s counsel opposed ground three of the appeal on the premise that it was unrealistic and unfair to attack the learned trial judge on allegation that she was biased. The learned counsel for the respondent quoted a passage from the English Court of Appeal judgment in Locabail (UK) Ltd v. Bayfield Properties Ltd & Another^ wherein the court explained its understanding of the existence of bias in situations of personal friendship or animosity between the judge and a member of the public involved in a case. Counsel also quoted our statement in the case of William Harrington v. Dora Siliya & Another^9) where we stated, inter alia, that: There is an increasing tendency by litigants and their advocates to make unwarranted personal imputations of bias against judges when they lose cases. Judges are not in a position to reply to such J17 imputations. We strongly disapprove of this practice. In our view, imputations of bias should not be lightly made against a judge. They should only be made in clear situations such as that described in Locebail (UK) Ltd v. Bayfield Properties Ltd & Another)8) as set out above. That was not the case here. Mr. Ngulube submitted that it was an unrealistic and unfair attack on the learned lower court judge to allege bias in the manner alleged by the appellant in ground three of his grounds of appeal. Quoting from Winfield & Jolowicz on Tort 18th Edition at page 1007 (para 22-5) that ordinarily an award of damages is made in order to compensate the claimant for his injury, counsel submitted that where, as in this case, the party claiming damages fails to prove them, the court should not award any damages. Counsel agreed fully with the lower court’s finding in this regard. We were thus urged to dismiss ground three of the appeal. Turning to the last ground of appeal, Mr. Ngulube supported the finding of the trial judge that water was actually sprinkled while the construction works were being undertaken as explained by DW1. In any case, the finding by the lower court in this respect was one of J18 fact and this court, as an appellate court, should not easily disturb such finding unless the conditions set forth for such a cause as explained in numerous authorities including Attorney General v. Morcus Kapurnba Achiurnet11). None of those requirements, according to counsel, were satisfied. We were implored to dismiss ground four of the appeal. We have paid the closest attention to the appellant’s claim, the defence by the respondent as well as to the arguments of the parties. At a general level the appeal raises the question of the circumstances in which a statutory body, invested with the responsibility of undertaking public works, may be liable to an individual arising from the performance of its mandate. We must state at once that public works undertaken by statutory bodies must be performed in a manner that causes the least inconvenience and harm to the public. It is incumbent upon such bodies to undertake, to the greatest extent possible, all necessary precautions and to exercise utmost care so as to avert endangering the health, life and property of any member of the public. The fact that such bodies have significant statutory backing entails that, like J19 public utility institutions, they fall within a continuum of transparency and responsibility to members of the public jointly and severally. Needless to state that subject to statutory limitations as set out in the Public Roads Act, the respondent' is, like any person natural or corporate, fully responsible for its tortious acts and omissions. The appellant in this case brought an action against the respondent claiming very specific reliefs which it situated within the Public Roads Act. The lower court rejected those claims as unproved. We turn to consider the grounds of appeal and the related arguments seriatim. As regards the first ground of appeal the question for determination is whether indeed the lower court judge did not take into account the provisions of the Public Roads Act, in particular section 47, by which the respondent was obliged to react the moment an affected party submits a claim. We have already reproduced the provisions of that section when we captured the submissions of counsel for the respondent. J 20 Section 47 cannot, as Mr. Ngulube quite rightly observed, be read in isolation from sections 44 and 45, which it mentions specifically. It states that a person affected by the powers of the respondent conferred upon it by sections 44 and 45 and who wishes to claim compensation, is obliged to submit a claim in the manner directed in section 45. What then are the powers conferred on the respondent Agency by sections 44 and 45? The powers of the respondent under section 44 and 45 flow directly from the obligations of the respondent under section 43(1). That section reads as follows: If during any investigation which is being made for the purpose of determining the course of any proposed public road, the Agency has reason to believe that the owner or any person having any rights over or in land over which the proposed road may run is within a distance of ninety-one meters on either side of the center-line of the proposed course of the road, doing any act or intending to do any act which is calculated to interfere with any proposed road, the Agency may, in writing, request the owner or person to cease doing the act within such period as the Agency shall stipulate or not to do the act. Under sub-section (2) of section 43, where any owner or person fails or refuses to comply with the request made under section 43(1), the Agency may, by notice reserve a strip of land against all use of it. J21 Sub-section (3), (4) and {5) all prescribe the manner in which the power in section 43(1) is exercisable. Section 44 deals with reservation of a road reserve by notice to the owners of the land concerned. Section 45 provides for withdrawal by the Agency or modification of reservation, while section 46 deals with unauthorised acts on reserved land. Section 47 deals with compensation, not in its genetic sense for all manner of wrongs that the Agency may be liable for and to any person, but only to persons affected by the exercise of any of the powers conferred on the Agency by sections 44 and 45 of the Act as we have explained them. Can the appellant’s claim as framed in his pleadings be located within the intendment of section 47 of the Act? In other words, was the appellant claiming compensation arising out of the respondent’s exercise of its powers denoted by section 44 and 45, that is to say, the power of reserving a road reserve? We think not. Our view is that the appellant’s claims cannot be so situated. They relate to loss of easement access, nuisance and unreasonable restriction from J22 movement of the appellant and his family. As Mr. Ngulube correctly submitted, the claims are not premised on any loss of land. Much as we are of the view that the respondent entity would be, in appropriate circumstances, liable for tortious actions against members of the public such as the appellant where, as here, a claim is brought out under a specific section of legislation - in this case section 47 of the Act, it ought to be clearly demonstrated that by the specified actions of the respondent, the provisions of the section in question were violated. It is not sufficient to merely allege a breach i of a section in relation to oneself. It must be shown how that section was violated. Even assuming, in the present case that indeed the appellant’s house had been structurally damaged as a result of the respondent’s activities, and that the health of the appellant and his family had been adversely affected by the road works, the statutory provisions cited by the appellant to ground his claim do not provide any pathway to the relief he seeks. J23 Having stated that the provision reEed upon by the appellant to further his grievance is in fact inapplicable to the circumstances of his case, it follows that submission of a request, no matter how many times, for an assessment of the damage caused to his house, was totally unavailing to the appellant. It seems to us that this claim should have been framed as an ordinary claim in tort setting out the usual ingredients to be proved, namely existence of duty of care, breach of that duty, loss suffered as a result of that breach and that the loss was not too remote a consequence of the breach of duty. Our reading of the lower court’s judgment does reveal that the lower court judge did, after all, in fact address her mind to section 47 of the Act, but nonetheless rejected the appellant’s claim. Granted what we have said about the appellant’s claim and section 47 of the Act, there appears not much point in taking the appellant’s argument further. Ground one has no merit and is hereby dismissed. Under ground two of the appeal, the appellant is unhappy with the lower court’s finding that the appellant was the only person in the whole area who raised a complaint against the respondent J24 regarding the road works. The specific sentence from the judgment that the appellant finds objectionable reads as follows: On the uncontested evidence, that no other person in the whole area other than the plaintiff raised any such complaint, I have no basis for finding the plaintiff was denied access to his residence for ten months as claimed. I find instead that the interference could only have been for the period when the defendant was working at the entrance of his house, which at most I find was not more than five days. We agree with the appellant that this statement, in the lower court’s judgment, if read in isolation and at a superficial level, conveys the meaning that because no other person in the whole area other than the plaintiff [appellant] had raised a similar complaint, it followed that the judge had no basis for finding that the appellant was denied access. In our view, that cannot be a valid basis for such a finding of fact. From a reading of the text of judgment preceding the portion complained of and quoted by us, it is clear that the learned judge devoted a considerable amount of energy explaining how she interpreted the evidence tendered before her. She spoke to the public notices that were disseminated regarding the road works and the appellant’s own admission that he was aware of those works. She J25 also observed, not without basis, that other residents, in virtually the same situation as the appellant, were generally content with the works and had nothing to complain about. She made her own conclusion after assessment of the evidence available to her. We think she cannot be faulted for that isolated statement in her judgment, which when read in context, gives a reasonable explanation as to why the claim was bound to fail. The real reasons for her decision are in fact discernable in the following passages from her judgment: The only evidence led by the plaintiff to support his allegation the obstruction was for a longer period was from his own brother, who admitted he was an occasional visitor, was a married man and lived in a different town. One would have expected a hoard of affected residents Willing to testify in a matter such as this, that raises an issue of public interest. There was not a single resident brought forward.... As we understand her, the judge was here raising the issue of the credibility of the evidence tendered and the weight she was to place on it. J26 We have stated time and again that assessing the credibility of witnesses and determining the probative value of the evidence is entirely in the domain of the trial judge. In Attorney General v. Kakoma(iol for example we put the position thus: A court is entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings on the evidence before it having seen the witnesses giving that evidence. The learned judge went further to make a finding of fact that when the works at the entrance of the residences, including that of the appellant, were being undertaken, the inconvenience which was ‘inevitable and necessary’ were kept to the barest minimum of 3-5 days. We are of the considered view that on the whole, ground two is equally destitute of merit. It is dismissed accordingly. Ground three of the appeal alleges bias on the part of the trial judge in favour of the respondent, mostly on assumptions in failing to adjudicate on the claim. At the hearing of the appeal, Mr. Mumba, learned counsel for the appellant, quite properly clarified that the ground and arguments on bias had not been appropriately phrased as the appellant had I J 27 meant to allege failure by the lower court judge to balance the assessment of the evidence deployed before her. To allege bias on the part of a judge is a serious indictment on the judge which should not be made lightly. We reiterate what we stated in William Harrington v. Dora Siliya & Another in a passage we have quoted earlier on in this judgment. An allegation of bias ought not to be made unless the maker can demonstrate such bias by reference to concrete instances from the record of appeal, for example through an inaccurate record of proceedings, or through failure by the court to record evidence favourable to a party, or indeed any other circumstances that would show that the judge haboured some personal animus against the complaining party. In determining bias on the part of a judge a fair starting point would be the test set by Lord Hopes in Parter v. Magiltf12) of the fair- minded and informed observer. In other words, what would a fair- minded and informed observer make of such conduct of the court as is pointed to by the complaining party? * J28 In the present case, the only reason the appellant alleges the judge was biased against him was because she ‘concluded in favour of the respondent on the doubtful evidence of DW1 who stated that the length of the road under construction was about 2 kilometers.’ This statement, according to the appellant, was not confirmed by any other evidence and yet was taken as the gospel truth. Clearly this cannot be a good enough demonstration of the existence of bias on the part of the lower court judge. We stated in respect of ground two that it is part of the responsibility of the trial court to assess evidence and assign value to it. That responsibility does not belong here. Furthermore, there are rules and principles that any person, unhappy with the assessment of evidence by a trial court, should invoke to challenge such assessment. The learned counsel for the appellant has not been very useful to us in this regard. Ground three must fail. Under ground four, it is contended that the evidence of DW1 should never have been given as much weight as the court appeared to have accorded it because DW1 was not present at the construction site the whole time. The evidence in question is one of sprinkling the I J29 construction area with water so as to minimize the incidence of dust rising into the atmosphere. We can state right away that this ground too has no merit and must fail. It is not for us as an appellate court to assess conflicting evidence, nor is it our function to determine the credibility of witnesses and make findings of fact. That is a function for the trial judge. If any such finding is regarded as perverse or made in the absence of evidence, or is so glaring in its defiance of logic as to be unreasonable, the party making such allegation must support such allegation by pointing to the evidence on the record. In the present case, it was not enough for the appellant to merely show that the respondent’s witness had gone on leave for a while during the relevant period. It should have been demonstrated that while the witness was on leave things were done differently, that is to say, no sprinkling of water occurred and the damage alleged occurred during that period. On the whole, we are of the considered view that the appellant’s claim was not substantiated with concrete evidence. The appellant could have done much more in the form of producing evidence of the t < J30 state of his house before the road works and after the road works. ' _ More importantly, he should have shown the causal link between the road works and the deterioration of his property. It is not enough to allege, as he did, that nuisance affected his residential house. He similarly should have gone further by way of producing concrete medical evidence regarding his and his family’s health, linking any health condition suffered to the road works. As it is, he merely made allegations in the particulars of his statement of claim that there was a ‘threat to the heath of the appellant, family and other members.’ Averments in pleadings such as these, are unavailing unless they are backed by cogent evidence. The upshot is that the whole appeal is destitute of merit. We dismiss it accordingly. The respondent shall have its costs to be taxed in default of agreement. ................. E. M. Harrraundu SUPREME COURT JUDGE . .........^**^**^^^^7^*'................ . 7^^. ... ■ ■... _______ Malila R. M. C. Kaoma SUPREME COURT JUDGE SUPREME COURT JUDGE