Lungowe Matakala v Builders Village Limited (2024/HP/0181) [2025] ZMHC 123 (13 November 2025)

LU GOW AT KALA BUILDERS VILLA GE LIMITED DEFEND NT BEFORE HON MRS JUSTICE S. KAUNDA NEWA THIS 13th DAY OF NOVEMBER, 2025 A a r the PlaintiJJ Ms Theresa Mwewa , Messrs ii & Kay Aduvcat !-or the Defendant : Mr Mulenga Mubanga, Jl,fessrs Chilupe and P rman nt Chambers JUDGMENT CASES REFERRED TO: 1. R v Silverlock 1894 Queensbench 2. Sitlto·le v The State Lotteries Board 19 75 ZR 106 3. Hol,nan v Johnson Holrna~ v dohnson 1975 1 Cowp 341 4. Chuba v The People 1976 ZR 136 5. Lyons Brooke Bond (Zambia) Limited v Zambia Tanzania Road Services Limited 19 77 ZR 317 6. Christopher Lubasi Mundia v Sentor Motors 1982 ZR 66 7. Wilson Masauso Zulu v Avondale Housing Project 1982 ZR 172 8. Attorney General v Marcus Achiume 1983 ZR 1 9. William David Carlisle Wise v E. F Harvey LiTnited 1985 ZR 179 10. Zambia National Building Society v Ernest Mukwamataba Nayunda 1993 - 1994 ZR 29 11. Anderson K. Mazoka and others v Levy ~Iwanawasa 2005 ZR 38 12. Kunda v Konkola Copper Mines Plc Appeal No 48 of 2005 13. Duff Kopa Kopa v University Teaching Hospital SCZ No 8 of 2007 14. Zambia State Insurance Pension Tn.tst v Zarnbia Extracts Oils and Colourants Lirnited and another 2013/HPC/295 15. Charles Kajimanga v Marmetus Chilemya Appeal No 50/2014 16. Finance Bank Zambia Limited and another v Simataa SCZ Appeal No 11 of 2017 17. Madison Ot,neral lfuu.rarace Contpa ,1y Limited v Avril CornhHI and Michael Kakoma Appeal No 19 of 2017 J 8. Msanide Phirl v BJIB Cori tractors Zambia Lltrtlted and two others CAZ Appeal No 136/2017 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England, 1965, 1999 Edition 3. The Zambia Institute of Architects Act Chapter 442 of the Laws of Zambia 4. The National Council for Construction Act No 10 of 2020 OTHER WORKS REFERRED TO: 1. Black's Law Dictionary, 9th Edition by Bryan A. Garner, Thompson Reuters 2009 2. Contract Law in Zambia 2 nd Edition, by Sangwani Patrick Ngambi and Chanda Chungu Juta, 2021 3. Halsbury's Laws of England, 4 th Edition Re-Issue, Vol 9 4. Trietel on the Law of Contract, 12th Edition 1. INTRODUCTION 1.1 Lungowe Matakala the Plaintiff herein, who is a Lecturer by profession and a client of Builders Village Limited, a company that is incorporated under the Companies Act No 10 of 2017 and offers building and construction services, commenced this action on 5 th February, 2024, by Writ of ·Summons, which was accompanied by a statement of claim and the other requisite documents against Builders Village Limited. 1..2 The reliefs sought are: z. A declaration that Builders Village Limited breached the contract which Lungowe Matakala entered into with the said Builders Village Limited; . IJ ii. An Orde r that. Br1ilders Vil!Cl[Je l,,Jn-1Jl ~d im mecllo t et.1-1 r !J airs and , °'Store . . Lungowe ,fataka l o 'c:: roof and c ilin.g which is valued al oppro.xirnal ly ZNtW400) 000. 00 to th e standard that was expected and agreed; m . Damages for th e costs of a lternative acco,nm,odation at the tim.e whe n Lungowe M a ta k a la 1s residence ·was uninhabitable for a period from October 201 9 to M a rch 2020) October 2020 to March 2021 1 October 2021 to March 2022 and October 2023 to January} 2024; zv. Damages for breach of contract v. Interest; vz. Costs)· and vzz. Any other relief that the Court may deem fit. 2. STATEMENT OF CLAIM 2.1 Lungowe Matakala stated that she entered into a contract with Builders Village Limited in which it was agreed that Builders Village Limited would design and build a roof and ceiling for Lungowe Matakala's home in or around April, 2019, and that the total cost for the materials and labour for that was approximately ZMW400, 000.00. 2.2 Her averment was that despite Builders Village Limited agreeing to provide quality service, in breach of contract, it . failed to construct the roof and ceiling to the required professional standards in that the roof had been leaking since inception, and had continued to do so, despite Builders Village Limited returning on site and fixing it on several occasions. It '1Vll s f:t. h~ J sf H ft'd t hut the frd lu n~ to co r1 ~ trlJc t tJ c orn petc·h t roof had fed to ,,,· tcns iv domaf c to L tngo -· M atc1-ka la 's eil.ing in the kit -h 'ti , livin g roorn a nd dinning room due t the dire t exposure to s u n and the rain . Her further avennent was th a t the ceiling in th e master bedroom and the children 's play room h a d also been extens ively d amaged . 2.4 Lungowe Matakala contended that the continue d leaking of the roof and ceiling had failed to protect her home despite . the grievances that she had raised and the interaction between herself and Builders Village Limited. 2.5 Thus, Lungowe Matakala stated that every rainy season from around October to March, she had had to find alternative accommodation due to the uninhabitable state of the house which was caused by the roof. 2.6 She added that Builders Village Limited through Mr Sam Sichilalu who was responsible for the design of the roof, would go to the house in an attempt to fix the leak and the _purported defect, but had failed to do so. 2. 7 Lungowe Matakala contended that as a result, she had suffered loss and damage, including anxiety, stress, anguish and inconvenience. 3. DEFENCE 3.1 Builders Village Limited in defence, admitted having entered into a contract with Lungowe Matakala to the extent that it was contracted to design and build a roof and ceiling. It stated that it did so in or about May 2020 and May 2021 and . that it installed the roof and ceiling. B u ild "rs Vill 3ge Litnit r ·ont'nde d thot Lungo v e Matakala '"'av rn1 =nt t i •:t t Z MW400, 000 .00 ~1 8 s p e nt on th e n1at rials a_nd bb ur, w-- s within h r p' uliar knowledge . 3.3 ·Furth r in its' d efence, Builders Viii ,: ge Limited stated th a t it h a d a d vise d Lung owe Ma t a k a l a t h at th e fl at roof t h at she sought to h ave built, required steel a s opposed to timber in order for it to be durable. However, Lungowe Matakala had insisted and opted to purchase timber for installation of the roof on the basis that she could not afford steel, and she ' already had timber that was available for use. 3.4 It was denied that Builders Village Limited failed to provide quality service in the construction of the roof and ceiling ·which led to the roof leaking from inception and Builders Village Limited returning to fix the roof on numerous occasions. The defence was that the professional standard that Lungowe Matakala alleged was within her peculiar knowledge. 3. 5 It was also stated that Builders Village Limited advised Lungowe Matakala that there was a warranty period of twelve months to cater for one rainy season, within which it could repair any leaks that were associated with newly installed roofs, and that thereafter, any works that would be done, would constitute maintenance works which were chargeable . . 6 The averment was that between May 2021 and May 2021, Builders Village Limited fixed the leak that related to the gutter after it rained, and before it installed the ceiling :Jdd 'ngtlw ,l fhi,"' -·r.t.'- duringfhc tfm e f.dr:\ . . l : n WltSC asnot ·- ~ - o "ltl icd b_; Lungn vc ntHJ HIH, tut u h: r caret ker . J.t- ,u-ts "t ued tl1f1t: Lu11 go ve Mat r;d a Ju ·ontnbu · d ·o the dm11a , ; by insisting on t he us , of tirnb r a, opposed to s · el for the . onstructfon of t h e llat roo f, Eu1d that the dama e w s further exacerbated by the p lacement of a heavy solar geyser a nd solar panels on the said roof, which compro-mised the strength and durability. 3.8 The defence was also that, further leaks that were associated with Lungowe Matakala's roof fell outside the said twelve months period, and constituted maintenance works the first and last which were done in or about October, 2021 when Lungowe Matakala reported drips of water that were occurring from the ceiling following some torrential rains. 3.9 Then in or around December, 2021, Lungowe Matakala reported another leak to Builders Village Limited, and it was agreed that Lungowe Matakala would proceed to engage a third-party roof expert of her choice, to conduct the maintenance works and fix the roof on the condition that Builders Village Limited would bear the cost of engaging the said expert, which Builders Village Limited did. 3.10 The claim relating to the days that Lungowe Matakala spent in alternative accommodation was denied, with Builders Village Limited contending that Lungowe Matakala only . spent two days in alternative accommodation in or about October 2021. at Fallsway Apartments in Lusaka, at a cost of J7 I · as n ade to be,-u-. 3.11 It \VR .. d 11i d t htH Lun, o e M.-1 U=tl Ala hn_d suff r · ·, t 1 -- •fl and dat'l:Htge n 'luding Hf-L ict r - B-8 ) anguish and in - on, eni n . Th d _fr,n e . a that Lungo • c Mn _aka ta. waj - n t entitl -d to an r li f. 4. REPLY 4 . 1 Lungowe Matakala in the amended reply, which was filed on _12th June, 2024, s tated that while Builders Village Limited on 2nd November, 2022 did mention that a flat roof metal framework was ideal but pricey, at no point did it state that use of timber would cause damage. 4.2 She further averred that Builders Village Limited had undertaken to send her money to buy the materials that were needed to fix the roof. 4.3 It was also Lungowe Matakala's reply, that it is common practice in Zambia to use timber to build roofs, and roofs do not leak. She stated that when timber was used to build roofs as was the case in this matter, Builders Village Limited as a professional, should have ensured that Lungowe Matakala did not suffer any loss or damage. 1-.4 Lungowe Matakala reiterated that Builders Village Limited's conduct fell below the standard of reasonable care, skill and diligence, and that it amounted to gross negligence. 5 Further reiteration was made, that Builders Village Limited's failure to construct a competent roof which led to extensive .damage to Lungowe Matakala's ceiling in the kitchen, living r n rn ,, nd th ' diointt roatrl du~ to f.h \ f"f: ,i, , · ~ · dt r-::,, datnng t th -- c-cHing in th~ rnn . tcr b ~droorn a · d th chH lren' · pfay rooni. ~rhe ~}t,tfrn reJatin: to the t wel e 1nonths ' v. arrc: nty W c ,s said to be ivithin B u il d ers Vi ll age Lim ited 's pe u liar knowledge, with Lungo we Matakala stating th at it was being said for the firs t tim e by Builders Village Limited, afte r it fa ile d t o attempt to fix the roof in 2023. 4 . 7 The assertions that Builders Village Limited fixed the roof were denied, with Lungowe Matakala maintaining that the roof had not been fixed, and it had continued leaking to date. 4.8 Lungowe Matakala denied having contributed to the damage to the roof, stating that the roof started leaking prior to the _solar geyser being mounted. 4.9 Her contention was that there are many homes that have roofs that are made with timber, and have solar geysers and solar panels mounted on them, but they do not leak, and that Builders Village Limited had agreed to this. 4.10 Lungowe Matakala stated that the contract that the parties executed did not have a warranty period for twelve months. 4.11 Her averment was that Builders Village Limited was first informed of the leak in the roof in October, 2020, which was . the first rainy season after the roof was constructed. She added that after that, Builders Village Li1nited had been on site every rainy season, in some years more than once, in an attempt to fix the leaks. · 19 4 .12 Lungowe Mat~lknla cont. -nd<Jc f h t ct. t no O t , e l e · £ts she ever 11 r :ed foJ t.l1os, v isit.· ot' for the vo k8 thHt w e re done . Therefore, sh · denied th ,;.tt th e S t id works w e re main ena:nce works. 4 .1 3 I t was stated tha t Lungowe Matak a la engaged a third-party roof exp ert after Builder s Village Limited a dmitt ed that it h ad failed to fix the leak, and that this was at Builders Village Limited's expense. However, even the third party could not ·properly fix the roof. 4.14 Lungowe Matakala averred that she had suffered loss and damage including residential costs during the periods when her home was uninhabitable due to the gross negligence and reckless conduct by Builders Village Limited. 4.15 It was also reiterated that the roof and the ceiling had continued to leak, and had failed to protect Lungowe Matakala's home, despite several grievances being raised and interaction being had by Lungowe Matakala with Builders Village Limited. 4.16 Lungowe Matakala stated that every rainy season around October to March the next year, she had to find alternative accommodation due to the uninhabitable state of her house which had been caused by the roof . . 17 It was repeated that Mr Sam Sichilalu of Builders Village Limited had to go back to the site in order to attempt to fix the roof either in person or by proxy, but had failed to remedy the defect to date. 5 . . SVU) N t, AT T lA~ . 1 her ---o~c . .rhif(-' I nildc rs ,ille· -' Limit c- d · •ft: H ·don PW1--LUNGOWE MATAKALA Lungo,, .~ Matal alr prod tr ed b r w itn e , idence. She testified in that witness stat ment, th .t sh 5. engaged Builders Village Limited to undertake .four construction tasks and installations at her residence being p lumbing, electrical wiring, roofing and the ceiling in March, 2020. 5.3 Her evidence was that with respect to the roof, Builders Village Limited was to design and build a hidden roof. Lungowe Matakala added that she had emphasized to Builders Village Limited, that she wanted a particularly hidden flat roof that would not leak, and that she had approached them as she had assumed that they were professionals who could build a hidden roof that would not leak. It was testified that Dr Sam Sichilalu had affirmed that 5.4 Builders Village Limited was capable of building a roof that would not leak, and that it was on that premise, that Lungowe Matakala proceeded to contract Builders Village Limited. 5.5 Still on Builders Village Limited, Lungowe Matakala testified that Dr Sam Sichilalu and Dr Brenda Bukowa of Builders Village Limited were employees of both the University of Zambia and Builders Village Limited. Therefore, as fellow ' ] 1 ' . NZ - Jons , Lun o · . , r fnf d nla hnd inf cn-1c t c d tifh th c. rn a ... i l\ •:t, n d ... / 'as u r U , . and th , c n t , r , cl in to n , r cd o rt tr . t . ,, . s. Lun .. , e fvh1te1ka la s testirnon v as th a t th ora l · ontr c t di f not contain a ,varr a nty p riod. 5.7 Her evidence was further that at th e ti1ne of d esigning the roof, Builders Village Limited had advised that a butterfly ·roof be constructed instead of a flat roof, because of the size of the house, which measured 14m by 16m. Lungowe Matakala testified that she had accepted the proposal as Builders Village Limited were the experts. 5.8 In still testifying, Lungowe Matakala stated that Builders Village Limited gave her the option between the steel framework and the timber framework, and that she opted for the timber framework because it was cheaper. As pleaded in the statement of claim, Lungowe Matakala stated that at no ·point did Builders Village Limited state that use of a timber framevvork would cause leakage or any damage to the roof. >.9 It was her testimony that Builders Village Limited designed and built the timber butterfly roof using the timber framework between March and May 2020. I-Ier evidence was that the roof bad a gutter that ran in the middle of the house. 0 Lungowe Matakala also stated that Builders Village Limited informed her to wait for one rainy season before installing the ceiling, stating that there might be a few leaks, which ·was apparently normal with a new roof. Thus, as advised, Lungowe Matakala waited, and in October, 2020 there were leaks, which Builders Village Limited attended to. Sh:. t r. -nl nh to tcsh(y t hf ,'l h 20~· l Build , rs. iHagc Urnited d sign · d HJ'·1d tr tilt th , C(' iHtlg io all the rt orns that wc:re dry , Th n in the rHin~ s -ason of that r.ar, th e re Wf~r e major .leak·- . cs, ,slating th at t h e d in ing room and the living room were affec te d . Lu ngowe Ma ta k a la stated that she inform d B u ilders Village Limited , b ut it d id n ot fix the d amage. 5.1 2 Furth er on the leak age, h er evid en ce was that in April, 2022 there were some light rains and once aga in , the r oof le aked, and she immediately informed Dr Sam Sichilalu and expressed her concerns regarding the ceiling, stating that the rains were light, yet there were leakages. Lungowe Matakala added· that she had asked what would happen when there were heavy rains, and that if they did not attend to the calamity, the ceiling would fall. 5.13 It was testified that Dr Sam Sichilalu assured Lungowe Matakala that Builders Village Limited would attend to the leaking roof. Therefore, Lungowe Matakala made several phone calls to Builders Village Limited asking them to go and . attend to the roof before the next rainy season and Dr Sam Sichilalu informed her that they would so, but they never did so. 5.14 Lungowe Matakala testified that she had reminded Dr Sam Sichilalu on the urgent need to repair the roof when they met at the UNZALARU workshop in Livingstone in early October, 2022. It was her evidence, that he promised to attend to the roof on his return from Chipata. 5.15 Tl en n 2 11<l O ·-toL -r, 1_02· , , he f Etd 'f-tfl.cd Dr Sa.m · i,ch il· l u who it1forn1 - d h - that h ou ld b on hi s a · fn,·tn Chipe1ta th e 1 ,. ·t day, b ut h ou Jd nol stoJ o · ·r in Ct-)ongwe as h had no t s een his frun ily sin ·· th ey had me t in Ljvingstone. ·Th refore, he could not attend to her, and h e had assured 11er that he would g o there on Monday 31 st October, 2022. 5.1 6 Lung owe Mataka la 's con tinu ed tes timony was with regard to fu rther efforts that she made to cont act D r Sam S ichilalu, and she testified that after he did not go t here on Monday 31 s t October, 2022, and the next day Tuesday 1 st November, 2022, it rained heavily, and the ceiling in the dining room fell with reference being made to the video, she had informed Builders Village Limited about the calamity. 5.17 Her further testimony was that Dr Sam Sichilalu on Wednesday 2 nd November, 2022, lamented that for flat roofs, metal frameworks were ideal, but pricey, and he purchased materials to repair the roof and he sent a team to go and work on the roof. 5.18 However, on 10 th November, 2022, there was heavy rain which poured into the living room, and Lungowe Matakala had to move out the sofas from the sitting room. She stated that her five year old daughter who had woken up and followed her, slipped and fell in pool of water and she hurt her leg, elbow and buttocks. Thus, Lungowe Matakala put her daughter on the dinning room table which she had earlier moved into the sitting room. Jl4 s. 19 Lu ngowe Mata.1 ala e:xplc-1ined tha t on J 0 th November, 2022 , the sitting rootn wa~ leH l<ing n1ore than the dinning room and after she h eard 3. loud ·ras h a t d h er daughter s cream, she went and found part of the ceiling on the floor in front of where her daughter was sitting. 5 .2 0 The tes tim ony that Lun gowe Matakala fu rther gave, was that her daughter was so devastated by the exp erience , an d she -could not sleep. She added that her daughter got up ar oun d 03:00 hours to go and stare at the ceiling which had fallen . Then later in the morning, Lungowe Matakala's daughter had cried, stating that the house was not safe. 5.21 Lungowe Matakala's evidence was that she had called Builders Village Limited and informed · them that she was moving out of the house, as it was a danger to her and the children. She testified that on 11 t h November, 2022, she went to Fallsway Apartments in Mass Media and Builders ·Village Limited quickly moved in to fix the roof and paid for accommodation at Fallsway Apartments for the night. 5.22 It was stated that the next day, when Lungowe Matakala called the workers at the house, she was informed that it had rained and the house had leaked. However, Dr Bukowa insisted that the house was safe, and she refused to pay for another night's accommodation at Fallsway Apartment. 5.23 Lungowe Matakala testified that she however refused to return to the house as it was still leaking, and it was prone ·to more parts of the ceiling falling. . J 1 .:-, 5 .2 4 lt \ tl un5 l\V . M t t I n • 1 :n H .s J , t .*co 'C • th tH. the , ite Vis-it R pm·t wPoof L ·cfcn" Jn~pect ion Re port d8t(2d , · 1 r~1 Oc obe·rr 0 ~ r w h ich: . Hf<, 'OrnpHed Hft ·r l\dtoH [•,;n Jn ccring Con"tru "tlon Lin1it "d di d t he asses ·rn n , re ~ aled "hat the ro { was poor!_ · d . s ign e d , a nd t h B.t B uil d · rs' Vi l.leg Limi ed did n ot construct a prope r and c a p a ble roof which w as suitable for her home. 5.25 She testified that as seen from the report which was at pages 1-1 7 of her bundle of documents, the recommendation was that a new roof altogether be constructed. 5 .26 However, the roof had not been constructed, and the home was not suitable for habitation, particularly during the rainy season when Lungowe Matakala was forced to find alternative accommodation. 5.27 In concluding her testimony, Lungowe Matakala stated that the failure by Builders Village Limited to construct a proper roof had caused damage to the ceiling in the kitchen, living room, dining room as well as the master bedroom and the children's play room. 5.28 She added that the wooden furniture, computers and the kitchen ele_ctric scale had been ruined by the rain water that had leaked into the house. CROSS EXAMINATION OF LUNGOWE MATAKALA 5.29 In cross examination, Lungowe Matakala testified when she was referred to paragraphs 26 and 27 of her witness statement, that she engaged a third party to repair the roof when it became apparent that Builders Village Limited could . 16 not d . .s< . H ,- t c ·,dcn c ~ H _ t h it sh r. r ·igf- gc · on e xp ·rt r oofc..-,1· hcz· chor c . -tnd f h o t ,,o fo rced , . lo ·h c e hlm . O ft ,J\ t· s forth .1 h e ,~ t -,:tirncH I~ , lhaf th cx p e r roof r l 1.s p · ed th r of. and rnad " r omrn . .ndat.ions '-ind inforrnc t her wh e'.'. t she n eded t bu1 . 5.31 . Lung we Matakala agreed that the services of the third party were borne by Builders Village Lim ited. 5 .32 Her evid ence, when she was r eferred to p aragraph 29 of the Site Visit Report which was at pages 1- 1 7 of her bundle of documents, and paragraph 29 of her witness statement was that she relied on the Site Visit Report as it was reliable. 5.33 Lungowe Matakala testified that Peter Kanema an expert signed the report. She however did not know Peter Kanema's qualifications. 5.34 . Her evidence was that before she sued, she did not bring the expert report to the attention of Builders Village Limited as she did not think it fit to do so. She could not answer if Builders Village Limited having been her contractor should have appraised the document. 5.35 In respect of her claims as pleaded, Lungowe Matakala's evidence was that she was living in Chikonkoto village when the house in issue was being constructed. 5.36 She agreed that in paragraph 7 of the statement of claim, .she had pleaded that she would pay for accommodation every rainy season. Her testimony was that she would stay at Fallsway Apartments at a cost of ZMW2, 300.00 per night. J 17 5.3 7 -Lungowe M f1taku1H's evid ·-nc<.., WO.$ that she paid for the s econd r1ight as B uild ers Vill r-tg ,) Lirnilc l onl paid for the first night, and th y r -fus -d to P'lY for th' . ,ccond night. 5 .38 Furth r in cros " exan1i.nation, Lungowe M , takaJa s tated that she spen t five nights at Legette in Ch alala at ZMWS00 .00 p er n ight wh ich ca m e to K2 , 500 .00, and that this was without the cost for fuel. 5.39 On other places that she stayed, her evidence was that it wa s in Chalala and State Lodge with her aunt and cousin. -Lungowe Matakala agreed that she did not bring it to Builders Village Limited's attention the other nights that she spent at alternative accommodation, as they had refused to pay. She agreed that she had no receipts to show how much she spent nights at the alternative accommodation, but she denied that it was because she did not sleep there. 5.40 Lungowe Matakala testified that she was not aware of the twelve months' retention period for the roof. She stated that the roof was installed and the ceiling was put after a year. -Lungowe Matakala agreed that she was aware that on a roof being installed, one had to wait for a year before putting the ceiling. RE-EXAMINATION OF LUNGOWE MATAKALA 5.41 In re-examination, Lungowe Matakala clarified that she did not have the receipts for the accommodation as she did not keep receipts, because she thought that she would not need them. 5.42 That marked the close of the case for Lungowe Matakala. DWI- SAM MICH. ELO SICHILALU 5.43 San1 Mi ·h Io Si- hiJ ,;1Ju who testifi d - n beh a lf f Builde rs Villa e Lim.ited produced his witness statement a -· his .evidence. He testified in that witness statement, that between May 2020 and May 2021 , Lu ngowe Matakala contracted Builders Village Limited to change the r oof from ordinary roof to a flat one, to install a ceiling and to conduct other modernization works at her home in Chongwe. 5.44 He testified that no plans relating to the house were availed to Builders Village Limited at the time. Thus, his team went to the house where they took measurements which were 14 x14 metres. 5.45 . It was his testimony that Builders Village Limited thereafter, issued two quotations to Lungowe Matakala one for steel trusses and another for wood trusses, which were at pages 1-2 of Builders Village Limited's bundle of documents. 5.46 Still in his evidence, Sam Michela Sichilalu testified that Builders Village Limited advised Lungowe Matakala against using wood trusses over the steel trusses, stating that wood is not durable, as it fends to bend over with time, pushing out the nails or bending the iron sheets which results in .leakages. 5.47 He went on to state that Lungowe Matakala despite being advised rejected use of the steel trusses and instructed that timber trusses be used as she had timber available. 5.48 That was how, based ·on the instructions, Builders Village Limited constructed a flat roof in or about May 2020. · .. nn-i M k .f1clo ._ _~ichifniu P -~J•fo•d th w. ~,~ f ~ li e "J ,He · .t •r Uufl 1<' .," l fUtt-~t' Lh ) th:'T,t 1 J.,. tti~t ·t• ,( 3 ;:1,)u =d~1, , a~ tnforrtl d At Jut th<; h 1<f c niortth!i' ' irnnt_ f- f:J B ttikl t::rs :Hl~g Limit. ~ ga\c •< ·'r "d one~ rain ~ a~ m: .nd within whi h period an Jeak assodHt d ritf th · n wly c·uH ro f. "hi h would be fixed at n o cost. Ho wever . any further work th 1~eafter, would be considered as maintenance, a nd would ·be conducted at a fee. 5.50 It was his testimony that between May 2020 and May 2021 within the warranty period, Builders Village Limited attended to a minor leak that related to the gutter by applying sealant to the gutter joint, and the issue was resolved. Sam Michela Sichilalu testified that this was before Lungowe Matakala moved into the house, and that at the time, it was occupied by a caretaker. 5.51 Then shortly thereafter, in or around April, 2021, Builders ·village Limited provided a further quote for works on the ceiling, which was at pages 3-4 of Builders Village Limited's bundle of documents, and it did a complete installation of the ceiling in or about May, 2021. 5.52 He testified that in or around October, 2021, outside the warranty period, following more rains, Lungowe Matakala reported that water was drizzling from the ceiling and Builders Village Limited carried out the maintenance works to address the issue. 5.53 Jt was stated that Lungowe Matakala demanded that Builders Village Limited pays for her lodging at Fallsway ,, 2 0 ApH1·tn)erH s Ht n rat of ZMW2, :~oo.oo p er night and ~he spent two nights thew Hl Build ·rs ViJlage Lirnitc ,l's cos t. 5.54 Sant Mi ·h e lo SichilaJ 1 in his con tinu e d testirnony, stated that t w a rds the end of the year 2 021 , it came to his attention, that Lungowe Matakala had installed solar panels and heavy sola r geyser d espite being a d vised about the non- durability of the timber trusses. 5 .55 He testified that thereafter, Lungowe Matakala in formed Builders Village Limited of another leak in the ceiling and demanded further maintenance works. 5.56 . Evidence was also given, that it was agreed between Lungowe Matakala and Builders Village Limited that services of an Lungowe Matakala would seek the independent flat roof exper t of her choice, who would conduct the maintenance works which cost would be borne by Builders Village Limited. 5.57 He stated that Lungowe Matakala proceeded to engage the expert and Builders Village Limited met the costs in full on 25th January, 2023. Sam Michela Sichilalu's testimony was .that it was agreed that there would be no more claims by Lungowe Matakala against Builders Village Limited in relation to the roof. 5.58 Thus, he denied that Builders Village Limited was indebted to Lungowe Matakala as claimed. CROSS EXAMINATION OF SAM MICHELO SICHILALU 5.59 When cross examined, Sam Michela Sichilalu testified that he holds a PHD in Engineering which he obtained from the -, Unive rsHj () f Pr toria in · oun /\fri c.a . He ug.r ccd tha t t h ere w1as no /\r ·hit c t n t Build rs Villr:p - L.imitc d. 5 .60 It\\ as a lso I is t • stin1ony, that there" e re Ci H Engineer s and Fore1nen who caz~ried out th e installation works , and that there was also support services whom they called as helpers. 5.61 "Sam Michela Sichilalu agreed that the helpers were not qualified but were experienced handy men. He explained that the Foremen were qualified, having craft certificates. 5.62 It was also his evidence, that Builders Village Limited was not registered with the Zambia Institute of Architects, but he could not state which provision of the Act did not allow them to register. 5.63 The evidence that \:Vas given, was that Builders Village Limited was registered Virith the National Council for ·construction (NCC) as it regulates construction. Further testimony was given, that Builders Village Limited was also registered with the Engineering Institute of Zambia. 5.64 Sam Michela Sichilalu explained to the Court that he was not aware that Builders Village Limited had to register with the Zambia Institute of Architects. 5.65 He was hovvever aware of the Judgment that was passed against Builders Village Limited, but he denied that each director of Builders Village Limited was fined the sum of 'Eight Thousand I(wacha (ZMW8, 000.00) in the Judgment, stating that only two directors were fined. 5.66 On why the fine was imposed, sam· Michela Sichilalu testified that it was because Builders Village Limited did not ,J22 ha ·ea li ·et·) -c foi- lt" -hilc' ~ltH'e, Hnd if t-v.cl off red th e sc·tvke of ar -hit c: tt. H'c. 5.67 He l\ -recd that u 1 2 0 ~O, Lunr n ,c Mot a k ~d a '!=! roof was r pnit- -d at Build -rs ViiLIH e Limit d's cost:. ft W ' agr -d th a aft r that, Lungow Mat kala stat d that the roof W e. s still leaking. 5 .6 8 Sam Michela Sichilalu a dmitted that it wa s a greed thereafter that Lungowe Matakala would engage a third party exp er t t o _repair the roof, and that Builders Village Limited would pay the expert. 5.69 When referred to paragraph 27 of Lungowe Matakala's bundle of documents, Sam Michela Sichilalu agreed that Builders Village Limited and the third party failed to repair the roof. 5. 70 Sam Michela Sichilalu on being referred to last paragraph of the report, which was at page 1 7 of Lungowe Matakala's bundle of documents, testified that it did not state that the _problem was due to the bad design. His evidence was that the gutter that they used was designed by the manufacturer, and it was not customized, but they just bought it and fixed it. 5. 71 His testimony was that the gutter was not the best design option, and it led to the eventual collapse of the roof. 5. 72 Sam Michela Sichilalu denied that Builders Village Limited recommended a flat roof in the first instance as it was affordable and durable in the long run. His position was that the had ud dscd Lun g o c Mo lnka h to do "1 fl a t roof with ste el trusse8 nd not '10 Jd c n tru '-' 'R . 5. 73 Whilst .·tating that a butt -rf1y ro of i a lso a fht roof, Sam 'Mi helo i hilalu testified that there is no butterfly roof, but that there are hipped, flat and skillion roofs in Zambia. 5. 74 He was referred to the last paragraph of the report at page 16 of Lungowe Matakala's bundle of documents, and he testified that it stated that there should be change from a hidden butterfly roof to another such as a hipped or a flat roof. 5. 75 His evidence, when he was referred to paragraph 8 of Lungowe Matakala's witness statement, was that it stated ·that Builders Village Limited recommended a butterfly roof instead of a flat roof, and that she had accepted as they were experts. 5. 76 Sam Michela Sichi1a1u testified that according to the report, it did not recommend a butterfly roof to remedy the damage which was caused. He stated that only a skillion roof did not have a gutter while the others had. 5. 77 That marked the close of the case for Builders Village Limited. 6. DECISION OF THIS COURT 6.1 I have considered the evidence and the submissions. FACTS NOT IN DISPUTE 6.2 It is common cause that Lungowe Matakala entered into an oral contract with Builders Village Limited, in which it was agreed that Builders Village Limited would design and build J 2 4 a roof and ,011 ~truct O , ,iJi 11 g for◄ . Lungowc Matakala's house in Chongwc around April, 2019 . The fa "ts whj h are a lso not in di ·pule, are that Builders 6 .3 Vi lla.g Limited d id constru ct a fl.at roof for Lungowe Ma ta ka la's h o u s e u sing w ood en trusses in o r aro u nd May , 2020, and th ereafter in 2021 , Builders Villa ge Limit ed installed a ceiling in the roof. 6.4 Also, not in contention, is that the roof started leaking in the rainy season in October, 2020, and Builders Village Limited repaired the said roof. 6.5 The facts which are further not in dispute, are that Lungowe Matakala continued to lodge complaints with Builders Village Limited in subsequent rainy seasons after that about the roof leaking, and that Lungowe Matakala contends that she spent two nights at Fallsway Apartments in Mass Media, as the roof leaked. 6.6 It is also not in contention, that as Lungowe Matakala continued reporting to Builders Village Limited that the roof had continued leaking, it was agreed that Lungowe Matakala engages a third-party roof expert to repair the roof at Builders Village Limited's cost, which vvas done. 6. 7 It is common cause that even after the third-party expert repaired the roof, Lungowe Matakala still reported to Builders Village Limited that the roof had continued leaking. 6.8 _The facts which are further not in dispute are that the third party roof expert did a report on the roof. ·ISSUES IN DI PUTE 6. 9 It b - in con ten ti< t·1 is iched th, cot tract that it. entered intr hrthcr n ti.id g iHagc Limited ith L ngowe M·•itaJ lt1a fo1· l CJ dC'si.g1- and ~.on~t.r-u · ,uon of the roof as wen a,, for th-" installatio11 f th -" 'eilh ,g, a nd th it -hould be or-d red to im1nediat ly repair and rest re . he roof and eiltng for Lungowe Matakala's house to the expected standard as agreed. 6..1 O The facts which are further in issue, are whether Builders •village Limited should pay Lungowe Matakala damages for breach of contract. 6.11 It is also in contention, whether Builders Village Limited should pay Lungowe Matakala the sum of ZMW 12, 000.00 being the costs of the alternative accommodation due to the uninhabitable condition of her house. ANALYSIS 6.12 Lungowe Matakala 1n her evidence, testified that she engaged Builders Village Limited to undertake four ·construction tasks and installations at her residence, being plumbing, electrical wiring, roofing and the ceiling in March, 2020. 6.13 With respect to the roof, it was her testimony, that Builders Village Limited was to design and build a hidden roof. Lungowe · Matakala added that she had emphasized to Builders Village Limited that she wanted a particularly hidden flat roof, that \Vould not leak, and that she had approa , hed thc:rn a,~ h 1 - H ' ' ,f 1s~~ 1r\(~d th:a ,, th -_-, . -v, -re pr .ii s iofH-lf"' ,ho could b tHd f hfrl, -ic . o ft. Htt ·o Jl d not JeaJ -. 6.14 • ung -e Mk t£1h·- 1f tof- 1 ,fl' - C< t rl tho.t D Ha.tn. ,~ l ·hil£du h d t-1-fiin11 d that Build r Vi. Hag Litnif: I as 1··~ pabl :. of buildin, a r . of that v.ould not 1--ak, and that i.t v ;- ,s t1n that pren1i that Lungo,ve Matakala pro • eeded to con tr c Builders Village Limite d. 6 . 15 She further tes tified that D r Sam S ic hilalu and Dr Brenda B u k o,;va of Builders Village Limited were employees of b o th the University of Zambia and Builders Village Limited . Therefore as fellow UNZA Dons Lungowe Matakala had ' ' interacted with them easily and casually, and they entered into an oral contract, which did not contain a warranty period. 6.16 Lungowe Matakala testified that at the time of designing the roof, Builders Village Limited had advised that a butterfly roof be constructed instead of a flat roof, because of the size of the house, which measured 14m by 16m. Her evidence was that she accepted the proposal as Builders Village Limited were the experts. 6.17 It was stated that Builders Village Limited gave Lungowe . Matakala the option between a steel framework and a timber framework, and that she opted for the timber framework because it was cheaper. . J2 7 6.18 Lun owe ,Mntako la's evidence wua that at. no point did Build -rs ViHa_ge Lit-r1itcd ~tate that u se of the timber framework would caus -' leakage or a n y damage to the roof. 6. 1 9 She explained that Builders Village Limited designed and built the timber butterfly roof, using the timber framework between March and May 2020. It was her testimony that the roof had a gutter that ran in the middle of the house. 6.20 Lungowe Matakala further told the Court that Builders •village Limited informed her to wait for one rainy season before installing the ceiling, stating that there might be a few leaks, which was apparently normal with a new roof. Thus, as advised Lungowe Matakala waited and in October, 2020 ' ' there were leaks, which Builders Village Limited attended to. 6.21 Her evidence was that in 2021, Builders Village Limited designed and built the ceiling in all the rooms of the house which were dry. Then in the rainy season of that year, there were major leakages, stating that the dining room and the 'living room were affected. Lungowe Matakala testified that she had informed Builders Village Limited, but it did not fix the damage. 6.22 Then in April, 2022, there were some light rains and once again the roof leaked, and Lungowe Matakala immediately inf armed Dr Sam Sichilalu and expressed her concerns regarding the ceiling, stating that the rains were light, yet there were leakages. She further testified that she had asked what would happ~n when there were heavy rains, and that 'if they did not attend to the calamity, the ceiling would fall. 6 .23 Howevct\ 01 ._ ·,tHYl ~t -hHA1U hml n. Si4Ur(1d L J ngo c . Mataka]a tha t: Buildci s VHiug ~ LirnHcd, t oukf cHtc nd to the lea_king r oof. Th us ., Lungowe Mat:a l .a, fa, trjadc se €re. I phone a Us, lo ·:B ui ld -'!"$ Vilh.gc Limit -d asking them to go and attend to the roof b efore t h e next r a iny s e a son, an d Dr Sam Sk hila.t u iufonned h e r th a t they would do so, but they n ever did. 6 .24 Lungowe MataJ<:ala als o testifie d about how she had reminded Dr Sam Sichilalu on the urgent need to r ep air the roof when they met at the UNZALARU workshop in Livingstone in early October, 2022, and that he had promised to attend to the roof on his return from Chipata. 6.25 However, on 22nd October, 2022 , when she had called Dr ·sam Sichilalu, he had informed her that he would be on his way from Chipata the next day, but he could not stop over in Chongwe, as he had not seen his family since they had met in Livingstone. She stated that he had assured her that he would go there on Monday 31 st October, 2022. 6.26 Then when he did not go there on Monday 31 st October, 2022, and the next day, Tuesday 1s t Novem.ber, 2022, it rained heavily and the ceiling in the dining room fell with reference being made to the video, Lungowe Matakala had informed Builders Village Limited about the calamity. 6.27 It was her evidence that Dr Sam Sichilalu on Wednesday 2nd November, 2022, lamented that for flat roofs metal ' frameworks were ideal but pricey, but he purchased materials to repair the roof and he sent a team to go and work on the roof. 6.28 Ho'" ever, on J 0111 No r-n1 bcr·, 2( \.,2 . the . c ns hcB · rain which pour -d int . fh c H · it1p t·onrt> o nd L· tr\ o M,· ,r. kal had to 111 v - nH th " ~ofrh front th ,. ;uing rnom , and th t th sitting i-0011'1 \; a f -oJ in tnor th _rl th · dinning room. Lun O\V-e Matakala t ~ ·tified that she hca r J a l ud e r e.s h an.cl her daughter - ream, and she went and found p a rt of the ·ce.iling on the floor in front of where her daughter was sitting. 6.29 The evidence that Lungowe Matakala further gave, was that her daughter was so devastated by the experience. 6.30 Thus, Lungowe Matakala called Builders Village Limited and informed them that she was moving out of the house as it was a danger to her and the children. 6.31 She testified that on 11th November, 2022, she went to Fallsway Apartments in Mass Media, and Builders Village Limited quickly moved in to fix the roof and paid for ·accommodation at Fallsway Apartments for the night. 6.32 It was stated that the next day, when Lungowe Matakala called the workers at the house, she was informed that it had rained and the house had leaked. However, Dr Bukowa insisted that the house was safe, and she refused to pay for another night's accommodation at Fallsway Apartments. 6.33 Lungowe Iv1ataka1a stated that she however refused to return to the house as it was still leaking, and it was prone to more parts of the ceiling falling. ,.34 ·Her evidence was that the Site Visit Report -Roof Defence Inspection Report dated 30th October, 2023 was compiled after Adroit Engineering Construction Limited did the ass "ff1"'tl. d1; h t-c -flied th f1 the roof I HS po rl de ·L d, u> i th tt Budd ,~ Hlngr1 Lin.if ·d di I 11of con tru t a pnJp r .nnd f: J oblc roof hi h a . 1itHbtc for her h ome . 6. S She 1- ti fi -d thnt the r orn 111cn.-.fati,on in the report, w r, that a n -'W r oof a ltogeth r be const ructed . 6 .36 Hov, ever, the roof had not been construct d , an d the home was not suitable for habitation, particularly during the rainy season when Lungowe Matakala was forced to find alternative accommodation. 6.37 Lungowe Matakala stated that the failure by Builders Village ·Limited to construct a proper roof had caused damage to the ceiling in the kitchen, living room, dining room as well as the master bedroom and the children's play room. 6.38 She added that the wooden furniture, computers and the kitchen electric scale had been ruined by the rain water that had leaked into the house. 6.39 On the other hand, Sam Michela Sichilalu of Builders Village Limited's evidence was that between May 2020 and May 2021, Lungowe Matakala contracted Builders Village Limited to change the roof from an ordinary roof to a flat one, to install a ceiling' and to conduct other modernization works at her home in Chongwe. 6.40 He testified that no plans relating to the house were availed to Builders Village Limited at the time. Thus, his team went to the house where they took measurements which were 14 x14 metres. ass · :ssment whi '•h re cu l d thot the roof v a poorly ·d "'Sign d 1 and that 1 ui ld ,r'" Vi l.l a Limite d did not construct proper nd capab le roof wh ich ,., as suit ble for her hom e. 6. 3 5 Sh e testified th at th e r ec on1me nd a ti on in t he report, was that a n ew roof a ltoge ther be construc ted . 6.36 However, the roof had not been constructed, a nd the home was not suitable for habitation, particularly during the rainy season when Lungowe Matakala was forced to find alternative accommodation. 6.37 Lungowe Matakala stated that the failure by Builders Village ·Limited to construct a proper roof had caused damage to the ceiling in the kitchen, living room, dining room as well as the master bedroom and the children's play room. · 6.38 She added that the wooden furniture , computers and the kitchen electric scale had been ruined by the rain water that had leaked in to the house. 6.39 On the other hand, Sam Michela Sichilalu of Builders Village Limited's evidence was that between May 2020 and May 2021, Lungowe Matakala contracted Builders Village Limited to change the roof from an ordinary roof to a flat one, to install a ceiling and to conduct other modernization works at her home in Chongwe. 6.40 He testified that no plans relating to the house were availed to Builders Village Limited at the time. Thus, his team went to the house where they took measurements which were 14 xl4 metres. 6. 41 lt \-Vas furthe r } is c-·idcnc ! thAf B tHdt 1n , HtHg Li,rnit : d ther· Hfi _, -. ;;,soui c o qu( f Hft ,n ,~ t.n L 1.ngo· fa take.ln one fi 'f' •t cl tr rnsc~ Hnd ~nof hct· fi , o td t r U~ fhs. -iun Mi h . Jo ~ichik Ju nhm t s tifi -d thH BuHdcr· · Hlage -Lin1ited ad i -d Lu n got r Mataka la £l ~riJn t using wood o, er th st el t 1L1s~es , stating th t wood Ls not durable s it tends to bend o er ,~ ith time , pushing o-ut the nails or ben d ing the iro n sheets which results in leakages . 6.43 He went on to state that Lungowe Matakala d espite b eing advised , rejected use of the steel trusses and ins tructed t h at timber trusses be used as she had timber available . 6. 44 That was how, based on the instructions, Builders Village Limited constructed a flat roof in or about May 2020 • 6.45 -Sam Michela Sichilalu told the Court, that as per the policy for Builders Village Limited, Lungowe Matakala was informed about the twelve months warranty that Builders Village Limited gave, which covered one rainy season and within which period, any leaks associated with the newly built roof, which would be fixed at no cost. 6. 46 He testified that any further works thereafter would be considered as maintenance, and would be conducted at a fee. 6.47 -Sam Michela Sichilalu also stated that between May 2020 and May 2021 within the warranty period, Builders Village Limited attended to a minor leak that related to the gutter by applying sealant to the gutter joint, and the issue was resolved. 6 .48 His evid t1 c wn~ t h o t thiR vo11 br,forc L mgo c M"itaka la mo, e d into the J H)LHH' , nod f- lint ut th e rfrn r,, H \:~•~occupied by n cm- -take r . .49 Th -'n shortJ., th rea n -r in or aroun.d .t\pri I, 202 l , Build .r • Vi1lag Lin1 it -3d p1·ovid ed "l fu rth r quote for work on the cei ling, and i t did a com plete in stallation of the ceil ing in o-r a bout May, 20 2 1. 6.50 It was Sam Michela Sichilalu 's testimony that in or a roun d October, 2021, outside the warranty period, following more rains, Lungowe Matakala reported that water was drizzling from the ceiling, and Builders Village Limited carried out the maintenance works to address the issue. 6 .'51 His evidence was that Lungowe Matakala demanded that Builders Village Limited pays for her lodging at Fallsway Apartments at a rate of ZMW2, 300.00 per night, and she spent two nights there at Builders Village Limited's cost. 6.52 Sam Michela Sichilalu stated that towards the end of the year 2021, it came to his attention that Lungowe Matakala had installed solar panels and heavy solar heaters despite being advised about the non-durability of the timber trusses. 6.53 Then thereafter, . Lungowe Matakala informed Builders Village Limited about another leak in the ceiling and demanded further maintenance works. 6.54 Sam Michela Sichilalu testified that it was agreed between Lungowe Mataka1a and Builders Village Limited that Lungowe Matakala would seek the services of an independent flat roof expert of her choice, who would J,13 conduct the tn s'.ljnt r-u-ttH:c 't od H, ·vh ic h c o ~Jl vnu l'd be borne by Budde.rs ViJla,g c Limif cd . 6.55 He stated thnf Lnn, __ o , Mr-ltl-d<FJIH prn c -d c d to c .nf; Ei gc the , · ert and Bui.ldcrs ilia c Limi t I m d h c of1t !-j in full on 511, J ::u1ua1y 1 2 0 3. Sarn Mic h lo Si ·hi l a l u st.ale { th ·1t it w .: .s a.gr ed that there wou ld b no more claims by Lungowe Matakala against Builders Vi llage Limited in relation to the roof. CLAIM FOR THE IMMEDIATE REPAIR AND RESTORATION OF LUNGOWE MATAKALA'S ROOF AND CEILING TO THE STANDARD EXPECTED AND AGREED -IN THE CONTRACT AND DAMAGES FOR BREACH OF CONTRACT 6.56 In the submissions, Lungowe Matakala referred to the learned authors Sangwani Patrick Ngambi and Chanda Chungu in the book, Contract La.w in Zambia 2 nd Edition at pages 309-310 stating that they state as follows at those pages: "The normal way in which a contract is discharged is that both parties perform their obligations under it. If only one party performs his obligations, then he alone is discharged and he acquires the right of action against the other. As a general rule, the parties must perform precisely all the terms of the contract, express and i1nplied in order to discharge their obligations." -· _---. J. _. 6 . 7 C gt idelin , tnitl h r in ·~ l ti- )fl dudn ~ th raitl , .., .._ c_ ... ...,'"' ns . 6. Rel ring on th b ok Corttract Law In Zambia c. m_.. he ·su bn1i ion "' as that the au th ors " i th re ard to bre, ch of contract at page 334 state that: "Breach of contract occurs if a party without lawful excuse fails or refuses to comply with thel.r obligations or perform what is due from them under a contract or perform their obligations in a defective manner. It may also occur where one party to a contract fails to comply with the terms of the contract." 6.59 ·on the categories of breach that are stated by the learned authors at that page, which entitle an innocent part to treat the contract as breached, and entitles them to damages, the submission was that these are outlined as where a party: 1. Unlawfully fails or refuses to perform his obligations under the contract; u. Provides defective performance; 111. Disables himself from perf arming his promise or part under the contract. 6.60 ·Trietel on the La.w of Contract, 12th Edition in paragraph 17-049 at page 823 was further referred to as having been relied on by the Court of Appeal in the case of h h th t i1 r ill d V n tru h rd r d to compl ·th the t rm of th c r Furth r hat by failing t o comply with th t rms of the con r ct, Builders Village Limited failed to· perform the con tract as expected . 6.62 R eliance was placed on the case of Duff Kopa Kopa v University Teaching Hospital /13/ stating th at it held t hat the test is the standard of the ordinary s kille d man ex ercising and professing to have that special s kill. It was also submitted that the said ~ase held that a man need not profess the highest expert skill, and that is well established law, that it is sufficient if he exercises the ordinary skill of a competent mari exercising that particular art. 6.63 In line with the above, it was submitted that Builders Village Limited having professed to be an expert on construction, architecture, construction and matters relating to building of structures, the standard of care that was expected from it was high in light of the skills that it had. qutrcd ~H h ·c .rd in acco1·dnncc ,,ith th c'~ ntrHc " ,- R J · coc.'h of c · ntncf. 6.6 Rcfe1-cncc " il-s mnd ~ h) the f~t)( r Dr frn -~c J-~rpo · -hkh as a.t I a :r ·' ., ' l - l 7 of LtH JJ o e · h h - kaJ 1 :.-" \ _ bt 'ncHe (Jf doc · unents ·"' hieb \\ F\, conduc cd b., Jt✓r1glnccrit1 , Co.r1~tr-ucf io · ' Liml . -d statfr U-rnt it sh r; -'d that th ruof t ns pm rl_ t ~ ign d a.nd it ~ N t 1 ta prop r •1nd apabl . r of for Lungow - MEttakr: la ·s hou 6.66 It was also stated that recommendation was m ade in the report that the roof be al together constructed due to the condition in which it was. 6.67 The submission was that the recommendation buttressed that Builders Village Limited provided substandard .performance, and it was therefore in breach of contract. 6.68 In that regard, it was stated that it was not in dispute that Builders Village Limited was contracted to design and construct the roof and to install the ceiling by Lungowe Matakala, and that it assured Lungowe Matakala that the roof would not leak. 6.69 Thus, Builders Village Limited designed and built a butterfly roof, but which would leak and it worsened over every rainy season. 6. 70 . Also submitted, was that Builders Village Limited held itself out as an expert and professional, and that Sam Michela Sichilalu in cross examination, agreed that Builders Village Limited was aware that there was a Judgment against it in a different suit where the directors of Builders Village Lim ited , -ere foihn ~ h · i~q ~i~1c,· h e hnd 'lf r-r c cL incd f'm' ht-,111; nor1 n v }t· H;:u\! \·\"trh the l f r h_y ,Hh nu, 7, unbin f,. 1!dif.ir t (~ , ·f 1\ n ,-- h · r('<; t~ ,-ur1d Thercfo 1e, Bu ilde r~ VilJ n. c Urni tc l lo.e k ed the cm n •te::n c -, arid ,_ kill t hal is r eq uired t und ,,.-u. k c -r f..tli n constru .. tirYt1 1 t, b ic h I d to th ~ d fe tivc , 1ch a; d - · ign ing r oof: work s, p '"'r fonnance. 6. 72 Sub1nission was also n1a d e, that the p erso ns from Builders Village Limited who carried out the works were not certified professionals or experts who had very littl e or insufficient educational background which San1 Michela Sichilalu admitted under cross examination. 6. 73 Thus, there was breach of contract and Lungowe Matakala was entitled to dmnages for breach of contract. 6. 74 Reliance was placed on the case of Zambia National Building v Society Ernest Mukwamataba Nayunda flO) as having held the following: uThe essence of damages has always been that the injured party should be put, as far as monetary compensation can go, in about the same position he would have been in had he not been injured." 6. 75 In response, Builders Village Limited submitted that Lungowe Mataka1a had re.lied on the third party that she engaged after Builders Village Limited allegedly failed to repair the· roof. However, that third party failed to repair the roof and Lungowe Matakala had been quick to apportion the blam on Buil for~ ·,rmrtg, Umi cd df)~pH • th r~ cxisten :c of the l 11t r ,~~ n it'L, p t:lTt . . 6,76 lt ·as C ( nt . 'id "'<i tha{ Lut)f't) fafrak~la'~ A~S rti,nn t h i,l ·Bu ild "'18 mf:\ ( Linljt(,d~~- in 'flP'0l ,H~ tf[) r ·pafr the roof Wa s, h er own Of inion w h .1 ·,h had not b ·en s , tp po rtcd by an · bj ti e i11dep - ndent e,·pert opin ion . 6 . 77 Ther fore, in the absence of suc h independen evidence, Lungowe MatakaJa could no t attrib u te the leakjng roof to Builders Villa ge Limited , as she may h ave contributed t o the worsening of the problem as she engaged a th ird p arty t o repair the said roof. 6. 78 On the expert report that Lungowe Matakala had relied on, ·the submission was that the author of that report was not called as a witness before this Court, to establish his qualifications and explain the basis upon which he reached at the findings that were in the report. 6. 79 Note was made, that the qualifications of the author of the report were silent, and in the absence of such evidence, the report was merely a statement of opinion by an unidentified person, and it had failed to meet the threshold of being admissible and reliable evidence, and it should be treated ·with caution, if not discarded altogether. 6.80 It was also submitted that relying on the Expert Report would prov1de an unbalanced and unfair evaluation of the matter, as the report was merely one sided. Further submission· was made, that Builders Village Limited was not made aware of the report prior to the trial, and it had not ~~'i-~~. . ' ·:t. .. ·~ ,~-~- - - b e n n 'la~onkd on P pporf n n it, to q 1wH ti m 1 it s' "ont c nt i n1 I h o d o l oL V, n~su tnp t i() Jl s or con :It, io t18. 6 . 1 Thu , th r -'J o ct 111 ·ct h a be 'I I p rcpA r d to su it I ungo w M a t a k a 1a 's a " . 6 .8 2 It wa s a lso u b1nitted that th is Court is not bound by t h e expe rt report, with contention being m a de , th a t the ex p e rt opinion in th e report was m ea nt to merely assist the Court ·in a rriving at a just decision . 6.83 The submission was that this Court is ent itled to scrutinise the reasoning, methodology and assumptions that underlined the expert report, and weigh them against the rest of the evidence. However, it was stated that the report standing alone, unsupported and untested, was likely to be relied on by this Court. 6.84 The words of Lord Russel of Kilowen CJ in the case of R v Silverlock 11/vvere relied on, which were as follows: ''We now come to the second objection, as to proof of the handwriting which affords a good illustration of that class of evidence called evidence of opinion. It is true that the witness who is called upon to give evidence founded on a comparison of handwriting must be peritus; he must be skilled in doing so but we cannot say that he must have become peritus in the way of his business or in any definite way. The question is, is he peritus? Is he skilled? Has he an adequate knowledge? Looking at the matter practically, is a witness is not sktll d ,th · Ju.dye wHl tell the Jury to disregard h,i vtdence. •- 6. 85 f'urth e r r -lj a n --- e v H • 1->Jo ccd <> .tl tl·1 People r41 wh -r, it VH" h -Id I h '\t : 1 Re o f c ·h b. u . a v The ''The evide11ce of a handwriting e.xpert is an opinion only and the matter is one on w .hich the court has to make a finding. In addition to his opinion the expert should place before the co,urt all the materials used by him in arriving at his opinion so that the court may weigh their relative significance. The principle is that the opinion of a handwriting expert must not be substituted for the judgment of the . court. It can only be a guide, albeit a very strong gu.ide, to the ·court in arriving at its own conclusion on the e·vidence before it." 6.86 The submission was therefore that the over reliance· on a . single untested document, without any supporting evidence or proper expert verification severely · undermined the credibility and probative value of Lungowe ·Matakala;s case, and that the Court should treat it as mere untested opinion which it is riot bound to accepL 6.87 As regards · the submission relating to Builders Village Limited being contracted to design and construct the roof, but that Builders V.illage Limited was not registered with the Zambia Institute· of i\rchitects, ahd as a result, two of its' directors ,vere fined ZMW8, 000.00 for the failure of such \_11 f registra.tion. t-l c sub1ni.s~ ,ion . . ~ thr•t fAJ n go \> , -· Mat.e k EJ.la i .n subruittin ~ug • .s t c d th r1f f ui.ld r ,_ · iH,Hge l i m H d p n rc~r c cl to be -.· perts in & i-c llit 'c ture , a nd oug.ht to hg c b .,n r : gist red with th z ,u11biH lnstHut of Ar hit ts (ZIA,J. 6 .88 It '" as also . •u bmitted that such argum :.. nt was mispl a e l, irr -levant to the p leadings , an d was of no probative value to the mat t e r tha t is presently b e fo re Court. 6 .89 To support that argument, it was stated that Lungowe Matakala in her pleadings, had alleged a failure to properly repair the leaking roof following a construction project. Further submission was made, that at no point had Lungowe Matakala allege that Builders Village Limited was engaged to provide architectural services, and the pleadings did not allege failure by Builders Village Limited to register with the Zambia Institute of Architects. 6. 90 Relying on the case of Attorney General v Marcus Achiume 181 it was submitted that a party is bound their pleadings. 6. 91 It was also submitted that it was factually incorrect for Lungowe Matakala to allege that Builders Village Limited presented itself as an architectural firm or as professionals who were authorized to offer architectural services. The assertion was that Builders Village Limited had never been an established firm of architects, but rather it was engaged by Lungowe Matakala to design and construct a roof, a service that fell within the scope of general building and construction, and which was not regulated architectural services, as defined in the Zambia Institute of Architects Act. 6. 92 Addition va,- h1ttdt'; Matuk• Jr f:. f'H1 J-, 'UiJ f ( u ~ f Hlf H' h - wn '\'~ ~ i ). > \ "! ' l [ .. Unger "' (! " H~ 1h~11· nf bi 1il J l f l ( _ ~r_•·~, - ' t ', f~ _ , t "-- , t , r nr e , c n tiu . t ioo · p 1nh·1- cror ~ nd n< t J pr·e ·-~.~ 1t d f< .. uJ'l tr, lg_,·(~. · ,i 6.9 It ., fut th~r su ,nine J t ha -' e n ff Buit d .- il l f - tlrn ' tc t. j r ·1 t O be f' , isl - r d ', ri l h t h Za m t- \fl, f n ~ i l ' e (J' -At" h.i t °'r v-hi .h v as not admitt d - th · i su f r -ut to , r- · lian \\ ould be one betv. een Builders Vi l1 ge Limit cl .· . d th rde·, ant regulatory autho rity, ar1d not on that dire tly affected the legal obligations b e t ween t h e p arties under the c ontract or a ltered the merits of Lungowe Mataka la's claims. 6. 9 4 The submission was that regulatory infractions such as failure to obtain registration did not automatically render Builders Village Lin1ited's obligations under the contract void or unenforceable, unless the subject matter of the contract .was itself :illegal or expressly prohibited by law, which had not been established in this case. 6.95 In still submitting, Builders Village Limited stated that Lungowe Matakala willingly arid voluntarily engaged Builders Village Limited without raising any objections to its' qualifications, standing or registration status at the· material time. Therefore, Lungowe Matakala could not now repudiate Builders Village Lirnited's involvement based on regulatory technicalities which were not directly related to performance .or the quality of the works that were done. 16 Builders Village ·Limited further submitted even if there existed regulatory penalties or fines which were ·imposed on its' director'\ tho n1 1 ttt r, ere admir·ti~f ati · san nonsf ·with no dir ct legul l eaHng on Lungo , c Mnt'' kala ~s pr1va te contractual clait ll ·, hic h ,ho il d I , f:TCijudt ' flt cd t pon on t h e basi " of 'on1Tnctu 1 11 µcrfor n1i-u1cc , th en ' a ih blc t' ktcs ' C atnd the apph "r:tbf ~ta u dar . I~ o f proof, H opposed .o p --culafiv argun1, nts ; bout th ~· regulator ·,omp.li -,n ·c th -- t. ne ither form d p art of the p le adings nor had demonstrat d any conn tion to the a ll eged defective works. 6 . 97 Lungowe Matakala in th e submissions in rep ly , referred to the h olding in th e case of William David Carlisle Wise v· •E. F Harvey Limited /9) where the Supreme Court held t hat: "Pleadings serve the useful purpose of defining the issues of fact and of law to be decided; they · give each party distinct notice of the case intended to be set up by the other; and th.ey provide a brief summary of each party's case from which the nature of the claim and defence may be easily apprehended;" 6. 98 Also relied · on, was the ca·se of Anderson K. Maioka and ·others v Levy Mwanawasa f11J where fr ·was held that: · ''The function ·of pleadings, is to give fair notice of the . case which has to be met and to define the issues· oti which the court wilt have 'to adjudicate in• . order to determine . thi ,natters in · dispute between the parties. Once the pleadings ftave been closed, the parties are bound 'by their pleadings arid the court has to talce them as such." 6.99 O .h -r Mundt (._- antb · tmt if; r- a~ it PlU - · r i c d n ·. is u 1.p ' U fi . b, j ~ -~ ~Jl .adin , -_ t ·" 6 1 l C· ·11 ·equcntl ,, the submi , sions s r ,. -d no fur ction d utiUty to both parties an d the Co u rt in the det rmin tion of this matter. 6.102 It v.ras also submitted in reply, that Builders Village Limited h a d contended that there was no evidence on record t o s h ow _that it did substandard work. However, Lungowe Matakala by her pleadings and her evidence at trial, had shovvn that the roof leaked and as result damage had been caused. Further, she had to vacate the house in order for Builders Village Limited to repair the roof. 6.103 Lungowe Matakala in continued reply stated that the expert report showed that the roof was poorly constructed, and in cross examination, · Builders Village Limited's witness San1 Michela Sichi1a1u, admitted that Builders Village Limited .conducted repairs to the roof of her house, as it was leaking, and that even after the repairs were done, the· house was still leaking. 6.104 The submission was that the admission wa·s proof that the work that Builders Village Lin1ited did on Lungovve Mat·::t1 ,.ala', hotv · n ,' -ub tnndord, nnd tn h c ::1c:h of th agr ~ n1ent 1 th c c ntr tc f . Thu~ , Lun :ro · c , fat ..-_ k c.dn 'R ho t , c , as u 11inhal it.abl . 6 . 105 011 · bj 'cti ·, lo th ,, p r t r -p rl, th - · c of Cha r les Kajimanga vMarmetus Chilemya r1 sJw r s relied · n tating that the S u prem e C ourt in that n1atte r , stated that in civil matters , p arti e s are provided wi th opport u nity t o o bject to any do cum en ts that are in tended to be brought before Court ·by the opposing party. 6.106 It was stated that the Court in that matter, stated that objections must be made timely to allow the other party to respond, and if possible to make the relevant application. DECISION 6.107 In this n1atter, the reliefs as sought by Lungowe Matakala are endorsed in the Writ of Summons and elaborated in the statement of claim. 6.108 The reliefs as claimed, are for a declaration that Builders ·Village Limited breached the contract, and for an Order to immediately repair and restore Lungowe Matakala's roof and ceiling. 6.109 The averinents as · made in the statement of claim, conter1d that Builders Village Limited agreed to build and design a roof and ceiling for Lungowe 1\!Iatakala's house, and that in doing so, Builders Village Limited agreed td provide quality service. · J J6 6. 11 0 Howev r th.c roof on bPirig · onstructcd 1 leaked au ing damn . - to th e I ·itch 'U, th.c Jivin g room, the dinning .room, th -~ n1aster b -droom and th -hildtcn's play roc ·m. 6 . 111 In d -fenc , Build -rs Vilktge Limited whilst ag:recing hat it " 'as contracted to construct the roof and ceiling, with regard to the roof stated t h at it had advised Lungo w e M atakala to use s teel trusses as opposed t o timber t r uss e s fo r the fl a t roof that she wanted to have constructed, as timber is less durable. 6.112 However, Lungowe Matakala insisted on using the timber trusses. 6.113 From the defence that Builders Village Limited filed, it can be seen - that it pleaded that between l\1ay 2021 and May 2021 after it constructed the roof, it fixed a leak that related to the gutter after .it rained, and before the ceiling was installed. It added that at the time, Lungowe Matakala vvas not residing ·on the premises, but rather, her caretaker was. 6.114 It was also Builders Village Limited's defence, that after that, · Lungowe Matakala put a heav~y-duty solar geyser and solar panels which compromised the strength and durability of the roof. 5.115 The averment in the defence was that Lungo\\re Matakala reported leaking of the roof in October, 2021 and · in December, 2021, which ·was outside the \v·arranty period of twelve months. · It was also stated that when the rook leaked in December, 2021 it was agreed that Lungowe Matakala engages a third party expert to repair the roof, as the roof w a s st:iH lc-,H kin g a ft er tu i l dcrc. Ulu~<1 Lirrti t c d r pa.ired the roof. Th e d f ,11 ce ,Vr LS thut thiR wa~ d rm e . 6.11 6 In h "r t stin-wn_ , Lun g o wc Ma:toJ.ta la at'"tte d tha t B ull dcr s Vill age Lfrnite d design e d an d built th e timbe r b utterfly ro of, u sing the t imber fra1nework between March a nd M ay 2020. S he a dded that th e r oof h a d a gutter that r an in the middle ·of the house. 6.117 Her evidence was that in October, 2020 , there were leaks, which Builders Village Limited attended to. Then in 2021, Builders Village Limited designed and built the ceiling in all the rooms that were dry. 6 . 118 She further stated that in April, 2022, there were some light rains, and once again 'the roof leaked. Lungowe Matakala testified that she immediately informed Dr Sam Sichilalu and expressed her concerns regarding the ceiling, stating ·that the rains were light, yet there were leakages. She furt:11er testified that she had asked what would happen when there were heavy rains, and that if they did not attend to the calamity, the ceiling would fall. 6.119 However, Dr Sam Sichilalu had assured Lungowe Matakala that Builders Village Limited ivould attend to the leaking roof. Thus, Lungowe Matakala 1nade several phone calls to Builders Village Limited, asking them to go and attend to the roof before the next rainy season, and Dr Sam Sichilalu 'informed her that they would. do so, but they never did. 6 .1 20 Then when they met Ht th e N7✓1 L!\RU ,. orkshdp frl Livin , stone in curly O c tober) 2 02 2 . T r . arn -, i hilaiu had J)ron1i~,ed f <J attend to tl 1 -' roof on his n:~turn frorn liipata. 6 . 121 H we, e1· 011 22nd October, 202 1 when she had called Dr an1 Sichilalu, he had informed her that he \. Vould be on his way fron1 Chipata th e n ext d ay, b u t h e c o ul d not s t op over in Chongwe as he had not seen his family since they had m et in Livingstone. She stated that he had assured her that he would go there on Monday 31 st October, 2022. 6.122 LungoVire Mataka.la testified that he did not go there on st Monday 31st October, 2022, and the next day, Tuesday 1 November, 2022, it rained heavily and the ceiling in the dining room fell. 6.123 Lungowe Matakala's evidence ·was that Dr Sam Sichilalu on Wednesday 2nd November, 2022, lamented that for flat roofs, metal frameworks were ideal, but pricey, but he purchased materials for repair of the roof, and he sent a team to go and work on the roof. 6.12~ Then on 10th November, 2022, there was heavy rain which poured into the living room and Lungowe Matakala had to move out the sofas from the sitting room, and that the sitting room was leaking more than the dinning room. 6.125 She explained that she ·had called Builders Village Limited and informed them that she was moving out of the house as it was a danger to her and the children. 6.126Thus, on 11th November Apartments M 1n ' 2022, she \vent to Fallsway . ass · Media, and Builders . Village Limited qui .klJ m< ►c'f'I i n , , V th ;-nof, fH"H' t pHht frrr th, tl( '( mmtH.fahon Hf 1•\ ·ll~ ·n" , 1, p:o·f m ~ ,,t ~ for th e Hi .t hL · _1,-· 7 a VA.-$ ... t.1f-t"d fhtH the i->'L ' I ck•., . \; h e n r.u.r-,go\,r ' r atei k e fa , 11 d thew,, d t ·r~ al th e hf 1~e, ., h, n ~ ;nfnrm cd thcJ,f .i hEJd ··ra'in -d and the hous , h ad leak rl . Ho\- c ·r Dr Bukowa insi "ted th,H the h use wa safe, a.n.d sh - r e fu e d to pay fot· another nights accommodation at Fallsway Apartments. 6.128 Lu ngowe Matak a la • tes t1fi e d h h t at s e 10 1 - wever refused to return t o t h e house as it was still l e aking, and it w a s p r one to more parts of the ceiling falling. 6.129 Her evidence was that the Site Visit Report - Roof Defence Inspection Report dated 30th October, 2023 was corripiled after Adroit Engineering Construction Limited did the ·assessment, rev ealed that the roof ·was poorly designed, and that Builders Village Limited did not construct a proper and capable roof, which was suitable for her home. 6.130 What can be seen from this, is that the roof was leaking after it was constructed by Builders Village Limited. Builders Village itself, attributed the first leak to the roof before the ceiling was installed to the gutter that was installed on the roof. 6.131 Builders· Village Limited at no point in its' defence pleaded ·that the timber trusses that Lungowe Matakala had elected to use in the construction of the flat roof led to the leakage of the roof. · 6.132 What Builders Village Limited did do in its' defence, state that after it repaired the leak that was caused was to by the . rt,o gutter. if b cn.n1l , L , nr, t h nt Lt 1,ri g ,o c ta t H k f.d i ,, h a d in ta11 f &.::l h -uv_ - hlt. , , ~e r ond !H )of p t-t ds o n t h r o of , _ hkh c orn1 ,-omi.qcd t.hr' dun-1 · ,;1;1 · of tJ c ro nf. · .1 ·'- · lt h o \ 1c , 1-, did not l ad an r , , idcn ce to show h o w th e timber t1~u s -s that were u ed to construct the roof, bende d or pushed out the nails there by causing the ]eakage to the roof, a s tes tifie d by S a m M .ichelo Si chilalu in his defence. 6.13 4 He merely stated so without providing evid en c e as t o how 'this caused the roof to leak. 6.135 Further no evidence was led by Dr Sam Sichilalu to demonstrate how the installation of the geyser and the solar panels contributed to the roof leaking or that the works that the third party did in repairing the roof as agreed contributed to the said leakage. 6.136 Objection in the submissions, was raised to the Expert Report which is at pages 1-17 of Lungowe Matakala's bundle of documents, on the basis th.at the author of the report was ·not called as a witness to substantiate · its contents and neither were their qualifications stated in the said report to determine whether they were indeed an expert. 6.137Thus, ·Builders · Village Limited vvas deprived of the opportunity to test the veracity of the report.· 6.138Lungowe Matakala in response contended that Builders Village Limited· did not object to the report" and therefore it had waived any right to object to the said report. . ' · .' 1h 1 6 . 13 Ord r B R,d 1 , of th Htd - of the upreme Court of Eng land, l 96 , l 9 dttiott 1 ~d· Ht ., H-1 fr Jtn i \ f{ it rl 1~e a r d to r ~ 1 .r t \ r if n ,_.~, efl•: ''( 1) E cept with the leave of the Coli rt or -pert evidence where all parties agree, no ex may be adduced at the trial o r hearing of any - cause or mat t e r unless t he p a rty seek ing -to adduce the evi.dence - (a) has applied to the ou C rt to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction ·given on the 'appiication, or (b) has complied with automatic directions taking effect under Order 25, rule 8 (1/(b). (2) Nothing in paragraph (1) · shall apply to evidence which is permitted to be given by affidavit or shall ·affect the enforcement under any other provision of-these Rules of a direction given under this parl of this Order.,, 6.140 The effect of this Rules is seen in the editorial or explanatory notes in Order 38/36/2 of the said Rules of the Supreme Court of England, which state that: "The · effect is to · preclude every party from adducing · any expert evidence at the · trial or hearing of any cause or matter tixcept (1) with the leaw, . ifth Court o r (:ii) wh · NJ all th~ p-arlf,1u1 agr~e or (3) rultt'!n . the tJtd ,1 l , g,ue,. 1,11 qffldavlt o,r (4) rnl1et"e the ,,arty 1tekirtg ·o addu:ce t1uch evidence has first applied the Cou.rt to determ.ine whether or not, and if so to what exter,t, to he must disclose the substance of his expe.rt evidence to any other party before the trial and he has complied with such direction or (SJ where he has complied with the automatic directions under 0.25, r.8 (1)/b). It is of prime importance that every party, whether plaintiff or defendant or third party, intending to use expert evidence of any character at the trial of civil proceedings, apply to the Court for a direction under rr.37, and 41, as the case may be, for otherwise he will simply be prevented from adducing such expert evidence at the trial, unless he secures the consent of all the other parties or applies to adduce such evidence by affidavit. The sanction for failure to apply for the direction of the Court to adduce expert evidence at the trial is the effective exclusion of the expert evidence of that party. " 6.141 A perusal of the evidence that is on record, reveals that Lungowe Matakala did not obtain the consent of Builders Village Limited to adduce the expert evidence. Therefore, she had to comply with the law that regulates the adducing of _expert evidence or opinion. 6 . 14 . Thet-c is 1-'I, {h h 1g Of1 o~(' 1'(' ( "( rd f' h ,,f.tf t-th O I !-t , h t l {' f,,,,U.r\J!', Of! Mat-[ika 1H HPf- li ,<tf tot htY-c( io n~ , ( t hf' · 1ou t, r <> fJd d u c t h e ., ·pc,rl t.csfimoii_v. 6.14 · Rule 43 of Order 38 of thl! Ru le of t·he Supreme Co-u.·rt of England· is E\s fnUo ws in 1 ro vi ~ion : "Where a party to any cause or matter calls as " witness the .m ,aker of a report which has been disclosed in acco rdance with a d irection giv e n under n1.le 37, the report may be put in evide nce at the commencement of its maker's examination i n chief or at such other time as the Court may direct." 6 . 144Notew orth y is that Order 5 Rule 21 of the High Court Rules Chapter 27 of the Laws of Zambia provides that: u21. In every case, ·and at every stage thereof, any objection to the reception of evidence by a party affected thereby shall be made · at the time the evidence is offered: Provided that the Court may, in its discretion, on appeal, entertain any objection ; to evidence received in ·a . si1.bordinate· · coiirl, objected to at the time it ·was offered." 6.145 Therefore~ -'Builders Village Limited ~{ trial, when Lungowe A1atakala sought to rely on ·the expett report which is at though · not pages 1-17 of her bun dle of documents had the liberty to object to the said expert report on the basis that the author had no( authenticated it. They did ndt do so. 6 .1'1·6 While Lun1,o v' Mntflknln ntJ,uc I. rel. ir 1g ()rJ the CAS o f Charles Kq/irn.anga v Manne .tu Chilet1iga (JI tha t no obje ·tion was J·uis d lJ Bui l fen , V ill cig • Lim i ted on the . exp - rt report, that d es not n1al e th e r port a Irni sibl as evid nee before the Court, as it is expert testimony which has not been authenticated. 6.14 7 The explanatory notes in Order 38/39/4 of the Rules of the Supreme Court of England state as follows: '~n expert witness is called primarily for his opinion evidence, and therefore when an order is made under 0.37 for the substance of any expert evidence to be disclosed, that means that the report of · the expert must provide both the substance of the factual description of the machine and (or the circumstances of the accident) his expert opinion in relation to that accident, which is the veryjustificationforcalling him." 6.148 As to the duties and responsibilities of expert witnesses, the editorial notes in Order 38/4/3 of the said Rules of the Supreme Court of England state that: "The duties and responsibilities of expert witnesses in civil cases were stated by Cre.'>swell J. in "The Ikarian Reefer" [1993/ 2 Lloyd's Rep. ·69 at Bl izs including: Expert evidence presented to the Court should he, and should be seen to be, the independent product of tlte e ,.,q:,e,·t u11tr1flu ,,, ed u ~• t'o form or co,1te11t by t'h - f!. J<_ig ,wie~- ,,>f Utlgdtion .. Art expert w1t-,1ess should pro vi.de in depettdetit assistance to t lte Court by way of obfect ive unbiased opinion fr1 re lation to m atters within his expertise. An exp ert witn ess in the High Co u rt s hould never assume the role of an advocate. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report." 5.149 In the case of Sithole v The State Lotteries Board 111 the Supreme Court stated as follows: "The court · is entitled to accept- an expert's that interpretation interpretation is based on special lraining -and skill, but it is not entitled to accept as factually evidence where . of fsti,tg o,n ;U,tr-ig· wht h tit -~ :1,ert 11a,11t1 he cat1 s ~ but tvlti~li, tftn court It - If ft1 u,aable t'o 416,,, 6.lSOThi~ en n l~m stl'c~_!-lcd the nc<'d fort 11c le 1,gt: b~- on f wrwt 11 nnaJJ Elf 1 H , ", • 15 1 Accord ingly, th e. ·pert report whicl1 is a t pages l - 17 < f Lu ngowe Matakala s b u ndle of documents not having met the r e qu irem ents fo r it to b e a d m is s i ble , t hi s Court can n o t rely on its ' contents . 6.152 It will further be seen that Lungowe Matakala in her submissions, raised issue with Builders Village Limited not having been registered with Zambia Institute of Architects and that its' directors were fined for such failure. 6.153 As such, this should be a basis for me to find liability on the part of Builders Village Limited, as it represented to Lungo,ve Matakala that it was competent to design and construct the roof and ceiling to the required professional standard. 6 . 154As righ.tly submitted by Builders Village Limited, Lungowe l\.1atakala did not by her pleadings con tend that Builders Village Limited represented that it ·was qualified to offer architectural services. Lungowe Matakala stated that Builders Village Lin1ited was contracted to design and construct a roof and in.stall the ceiling which was up to the required standards. 6 .155 There is no pleading that Builders Village Limited in contravention of the law, ·designed the roof. 6. 156 In the ca ,. 1, C o , . . ""•Oto,.s Limited 6J thr .· pl adit:1 h ,rl f{:1,,1: ,. Lnba f Mu, d .1-_ 'our ,f;lrAt _d th l fl s-nto.~ fr Ho l i ~f" ~ r \~ftr d A - 'Th ftui · Uo,a if,.,, t1.dlng I t ,y wf111 know:,i, ,, , to glfHt fair no, i - if ti _. a wldch ha _ ta he ,n41-t and to d~flne tlte ls ues on which the co·urt wUI have to adjudicate lr1 order to deterr11Lne the matters in dispute betweett tlte parties. Once the pleadings have been closed, the parties thereto are bound by their pleadings and the Court has to take them as such.,, 6.157 In terms of whether the failure to register with the Zambia Institute of Architects · rendered the , contract illegal, a registered architect is defined in Section 2 of the Zambia 'Institute of Architects Act, Chapter 442 of the Laws of Zambia as: ''''registered architect" means· a person registered under section twenty-eight and engages in the planning or supervision of, and erection or alteration of a building exceeding · one hundred and twenty square metres.'' 6.158 I ·have perused the said Zambia Institute · of Architects Act and T am unable to find a provision that relates to the ·consequences of one failing to register uhder the Act. The Act regulates the registration of Architects, and provides for the discipline of registered Architects. J SB 6.15 9 Th e Nat-ional Co-.,1·c-tl '-o-r C J• 2 0 20 in S cttorr 2 d d 1nc~ fl "' - ·o n fn c tor i t ~ : tru t-ton A .. , :t n'O 10 of " '" "contractor , n1ea,1 tttl i11dlvidual, .firm, ompany or body of p rso,i , who r.u1dertake to execute and complete constructio,1 works;,, 6. 16 0 Tl - 'ti n furth - r d - fin e ~ construction as : ''const~ction " ,neans the process of erect ing , extending, repairing, maintaining, r e trofitting, renewing, renovating, rehabilitating, altering, upgrading, restoring, refurbishing, converting, dismantling buildings and engineering infrastructure, and or demolishing of all types of includes temporary and any preparatory works required to undertake the works;" · · 6.161 It will be observed that under Section ·i O of the s ·aid Act provides that: ''10. (1/Aperson shall not carry on. business in the construction industry, without registering as a contractor under this Act. /2) A person shall not be considered to be carrying on , business· within the· meaning of this Part by reason only of the performance ·of that person's functions as an employee. (3) A person who contravenes .. subsection (1) commits an offence and is liable~ on conviction, to a fine n·ot exceeding five hundred thousand •· •' . .., · · P natty ,,nit , · , to t~npr:t onm ~,,tt for . 6-,.:·c-e-,e,dlng fl .t>e g ar~ or t-o botll.' t r ,m 11ot 6 -1 ·- Section 14 (1) of the !laid' Act pto tdcs thflL tj 14. (1) Tl1 ·e Courtcll shall esta bllsla gro.df!!J and classes in respect of registered contractors and maintain a record of the rtumber of registered contractors in each grade and class.,, 6.163 It has been seen that a registered Architect is defined by th e Zambia Institute of Architects, as one vvho engages in th e planning or supervision of, and erection or alteration of a building exceeding one hundred and twenty square metres. 6.164 A lay definition of planning, is the process of setting goals, . defining actions to achieve those goals artd the organizing of resources and efforts needed to carry out those goals. 6.165 Construction on the other hand, is defined by the National Council for Construction Act No 10 of 2020 as meaning the process of erecting, extending, repairing, maintaining, retrofitting, renewing, renovating, rehabilitating, altering, converting, restoring, refurbishing, upgrading, dismantling or demolishing of all ;types of buildings and engineering infrastructure, and includes temporary'and any preparatory . works required to undertake the works ~· 6.166 There is no pleading as · to the failure by Builders Village Limited to register ½rith the Zambia Institute of Architects. · 167 While that it is the case, it' is trite that · Courts will not enforce illegal agreements. 6 · 1 ~ R Hals,bt,Hy ' .. , l _w~ of Engltutd; 4,11 l£dltla,1 lle ,.fg9,tui, Yol 9 itt pan · g aph 386 in dml r ·· {r:i r·d -:.'t i lfc ~ U,nr : c:'Tltere are seve,·al cl:asse.s of con.tracts tuhlch though perfect as to form agreement and c onsideratio n are notgivenfull effect because they offend of t h e la w . So me contra cts may be illegal' ln the sen se that they involve the commissi o n of a legal wrong, whether by statute or the common law, or because they offend against fundamental principles of order or morality. Less objectionable contracts may simply be void by common law or statute.,, 6.169 In the case of Holm,aiz v Johnson (31 the Court stated that: ''The principle of public policy is this; ex dolo malo non oritum action~ No Court will lend its' aid to a man who founds his cause of action upon an immoral or illegal act~ If, from the Plaintifjs own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this · country, there the Court says he has no ·right to ·be assisted. It is ·upon that ground the Court goes; not for the · sake: of the defendant, but because they will not ·[end their aid to such a plaintiff. So, if the plaintiff and the defendant were to change sides, and the defendant was to bring the action against the plaintiff, the latter would have the advaniage of it;for where both a - .d if.tt r-ert tt . -q,,alty lit fault, 11ottot- f'1 ·t co, dlt,o 6 . l 70 Th 'UT- i~cm ~otn- t tn t Ii . ,. . o f Za,rtbla State lnsuraru. Je Pension Trust v Zambia Extracts Oils and Colourants Limited and anotherfI4J further n t -d th t: ''Where a contract which t .he pla in tiff seeks t o enforce is expressly or by implication forbid den b y the statute or common law, no Court will lend its' the consideration and the matter to be performed are to give it effect ..... but where assistance both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract in the performance of something to be done on his part." 6.171 The evidence on record shows that Builders Village Limited agreed to design and construct a roof and ceiling for Lungowe Matakala. As to how that amounted to an illegal contract has not been demonstrated and that aspect as made in the submissions fails. 6.172 It has also been shown from the evidence that after the roof was designed and constructed by Builders Village Limited, it .started leaking with Builders Village Limited stating that the initial leak was associated with the gutter that it placed on the said roof. 6 -173 The re· or·d ~hows tl'1•1t the re . · furtL , t· J t .k.:9 fr1 the roof l -d to the · _ fling of Luttgo e tvfHtakala's ho tsc Whi 11 -olla.p "'i.11 . 6.174 I have found that the expert repon ca11 only be admissible in tl is matt -•r if it is a uth entica ted by the author, it be-ing an exp ert r epor t. 6.175 Buildet·s Village Limited however having been contra cte d by Lungowe Matakala to design and construct the roof that leaked and which in turn caused the ceiling of her house to th k·tchen dinning .collapse, and resulted 1n damage 1n e ' . , · room, sitting room, master bedroom and the children's play room, it was in breach of contract. 6.176 This is on the basis that Builders Village Limited did not in its' defence lay any evidence before this Court to show that the leaking roof was contributed by use of the timber trusses that Lungowe Matakala paid for to be used to construct the said roof 6.177 Further, this is on the basis that Builders Village Limited .did not in its' defence lead any evidence to show that installation of the solar geyser and the solar panels contributed to the leak in the roof or that the third-party that was agreed by the parties to repair the roof in any way contributed to the said leakage of the roof. 6.178 The only evidence that is before Court, is that the gutter that Builders Village Limited installed as part of roof leaked and it caused damage and Sam Michela Sichilalu in cross examination agreed it led to eventual collapse of the roof. 6.1 79 Th e refor , Lun'-!) , , M"t PJ " ' n , , d H ~, I C ('( ' ('d ~~ o , i h er c tR,t ], fo r th Ter air Ht i d t'c ~tornti ) 1 o f r he t or r1 n ti if fs t r l t c t h,o t i'n co n tr 1 t .• ' lll innoce nt , :n·t i,~ ro l>c pfHc •d ir , t h e pos i ft' n t h 6 - lB O T h t th -_ ,.vou 1d hn e bee n , h Hd th e c c. n [nJ c f b n pe r form ed . d :tt:n ·t~ c .. d l ·' , , th ·, 'O ts o f r 1 a ir a n I r -RtoraUon of th roof and ' i lin g h ~tll b e a s s ssed b th e Re g i tra.r , t1nd a t whi h proce dings Lungowe Mata k a la, shall be at libe r ty to call the auth or of th e exp ert repor t t o substantiate the coS t of s u ch repair an d replacem ent of th e r oof. CLAIM FOR REIMBURSEMENT OF THE SUM OF ZMW12, ·000.00 AS COSTS SPENT ON ALTERNATIVE ACCOMODATION 6.181 With respect to this claim, Lungowe Matakala submitted that the evidence on record showed that the roof that was constructed led to Lungowe Mataka.la's house being uninhabitable especially in the rainy season. 6.182 It was stated that Builders Village Lirnited vvas aware of this. 6.183 Reliance was placed on the case of Finance Bank Zambia Lfmited and another v Simataa /16/ stating that the . -Supreme Court in that matter held that:· "It is . important to recollect the principle that where there is a right there is a remedy .... and breach of contract by one party ·necessarily entails an infringement of a contractual right by the other ·party." 6-184 Submission was made, that Lungowe Mataka1a and her two children had to leave the house when it leaked due to the arc ·n 1n1 d t~fion (< r ne ni -rhf r nd f h ,Hd n r !t pa id fi r t h -_ U r:1g1, f_..iml t c d 6 . 1.8 · in Ch a Ja la a( h . r· o v n . -p n fi r a ce rt a in p ri o d ,.n · 1 · h e nl_ r -turned hom after the r~aJn sub ided. 6 . 186 It '"·as also submitted that Lungo\ e Matakala complained about the c o nt in u e d leakin g of th e r oof an d B uilders V illage Lim ited agreed t ha t sh e e ngaged a th ird p arty t o rem e dy th e ·t d d id so, . d efect a t its ' ex pense. Thus, Bu1lders V11lage 1m1 e L ' · but however, that also proved futile as leaking of the roof continued. 6.187 Builders Village Limited 1n response, submitted that Lungowe Matakala had contended that she spent several .nights in alternative accommodation . 6.188 However, she had not adduced any evidence to support her claims. The cases of Kunda v Konkola Copper Mines Plc 112/and Wilson Masauso Zulu v Avondale Housing Project 17/ were relied on among other authorities, as having held that he who alleges must prove. 6.189 The claim by Lungowe Matakala is for costs for alternative accommodation, for the period October, 2019 to March 2020, October 2020 to March 2021, October 2021 to March .2022 and October 2023 to January 2024. · 1 The claim far costs for alternative accommodation is a claim for special damages. I say so because Black's Law Dictionary l,y Bryan A. Gant r, 90, Editio,i, Tho,,.as Reuters, 2009 nt rw gc 1iH ,kfi11(' ,q s i wciof doma,cJes aH ; ~~Dantag s t-ltat- are alleged to have been ~tu,taln.ed in tlte circu,nstances of a particular wrong. •Tobe awardable, special da,nages must be specifically c la imed and p r oved." 7. 1224 Furtl er, the Supreme Court in th case of Madi s on · General Insurance Company Limited v Avril Cornhill and Michael Kakoma /17/ s t a ted t h e f ollowin g as regards proof of special damage s : '~ claim for special damages such as loss of use must be proved through cogent evidence. This has been the consistent position of the law as restated in cases such as Zulu v. Avondale Housing Project. In Mhango v. Ngulube, we stated the position thus: 'Tt is, of course, for any party claiming a special loss to prove that loss and to do so with evidence which makes it possible for the court to determine the value of the loss with a fair amount of certainty." La.ter in the same judgment we observed and stated as follows: ''The result is that the evidence presented to the court was unsatisfactory and, in our opinion, the learned trial judge would have been entitled either to refuse to make any award or to award a much smaller sum, if not a toke,i anu,u, t ltt orJf!,. to rl!tnlnd .(#tlga .nt~ that it is ,1ot part of th.e Judge~11 duty to e tablislt for tl1e1n wltat their lotruJ 18 . ,, 6 . 1 0 Th refi re , in this 1na tt ~r Lun O\, e Ta taka l a b a ns th - burden of pro, ing that she did in. fa 't stay in the a ltern tiv a cornmodation during the periods as alleged. The evidence on record shows that from the time Lungowe Matakala took . ing the rainy occupation of the h ous e, 1t has b een lea 1ng ur k . d . s e ason . 6. 191 Accordin gly, as the dama ges for t e repair an h of the r oof a r e being assessed, the cos sp . alternativ e accommodation shal equa y e as 11 b . · t d restoration ent on the sessed and if not prov ed, the Registrar shall awar a to en aw d k ard as costs . for alternativ e accommodation. 7. CONCLUSION 7 . 1 Lungowe Matakala has succeeded on her claim for breach of contract and for the repair and restoration of the roof and ceiling which damages shall be assessed. 7.2 Her claim for the costs of alternative accommodation shall be assessed, and if not sufficiently proved, a token amount shall be awarded. 7.3 The amounts found due shall carry interest at the average short-term deposit rate from the date of issue of the Writ of Summons until Judgment, and thereafter at the Bank of Zambia lending rate until payment. Lungowe Matakala h av1ng been successful, she is awarded costs which shall be . taxed in default of agreen1ent. 7.4 Leave to appeal is granted. J67 DATED AT LUSAKA THE 13th DAY OF NOVEMBER, 2025 S KAUNDA NEWA HIGH COURT JUDGE i REPU ~uc OF z£ 1s1Ji.-----. . 1 3 NOV 2025 ~$ 1-,; r- •~· ~ ,- r , ~ , ~ r- - -:-" I\ ' 11/:--,_/f\ -~ ..:J '<11....:. • • '_;