Mushe Milling Limited v Ntasuwilanga Enterprises Limited (APPEAL NO. 239 OF 2021) [2022] ZMCA 206 (14 December 2022)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 239 OF 2021 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: \>\l~uc OF lAMa1 i\0 \ l~ lmA~ l •• D ., / l .... MUSHE MILLING LIMITED APPELLANT AND NTASUWILANGA ENTERPRISES LIMITED RESPONDENT CORAM: Chashi, Siavwapa and Banda-Bobo, JJA ON: 20th September and 14t h December 2022 For the Appellant: N. Mbuyi (Ms) and C. Nkhata, Messrs Paul Norah Advocates For the Respondent: M . A Musukwa and M. Musukwa, Messrs Andrew Musukwa & Co. JUDGMENT CHASHI JA, delivered the Judgment of the Court Cases referred to: 1. Abraham Mohammed and Alamtara Transport Limited v Safeli Chumbu (1993) S . J 78 2. Livingstone v Rawyards Coal Co. ( 1880) 5 App. Cas. 25 3 . Victoria Laundry v Newman Industries Limited ( 1949) 2 KB, 528 4. ZCCM Investments Holdings PLC v Mufalali & Others - SCZ Appeal No 238 of 2013 -J 2 - 5. The Attorney General v Felix Chris Kalenga ( 1982) ZR, 1 6. Times Newspaper Ltd v Alias Andrew Kashita ( 1982) ZR, 7. Victor Konie v Attorney General (1990-92), ZR, 20 8. Mhango v Ngulube & Others (1983) ZR, 61 Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of Other authorities referred to: 1. McGregor on Damages, 6 th Edition 2. Black's Law Dictionary by Garner, Eighth Edition 3. McGregor on Damages, 13th Edition 1.0 INTRODUCTION 1.1 This appeal is against the Judgment on assessment of the Registrar (Commercial Division), Honourable P. B Mwiinga, which was delivered on 22 nd January 2021 in favour of the Respondent , which was the plaintiff in the court below. 2.0 BACKGROUND 2.1 The background to this matter 1s that, the Appellant owned two plots namely, Stand No. 20610 and 20611 -J 3 - Lusaka. The Respondent owned Stand No. 20609 Lusaka. At the time of purchasing Stand No 20610, the Appellant was shown by the vendor and its surveyor, Stand No 20609 as Stand 20610. In view of that, the Appellant, in its expansion and development of the milling plant, encroached and built on stand 20609. The Appellant, in doing so, went on to borrow monies from the banks using Stand No 20609 together with the plant and machinery thereon under the belief that it was Stand No 206 10 Lusaka. In one of the borrowings, the Appellant borrowed US$3 ,750,000.00 secured by a mortgage d ebenture which appears at page 259 of the record of appeal (the record). 2 .2 On 20th November 2014, the Respondent commenced an action against the Respondent, claiming declaratory Orders that it was the owner of Stand No. 20609, removal and d emolition of structures built on the plot and further and/ or in the alternative substantial compensatory and exemplary damages for willful trespass, encroachment and illegal occupation and development of the land. It further claimed damages for loss of opportunity by the Respondent to own and use the land. 3.0 DECISION OF THE COURT BELOW -J 4 - 3.1 In the court below, the learned trial Judge P. M Nyambe SC, in her Judgment dated 4 th November 2016 made a finding, that Stand No. 20609 belonged to the Respondent. She however went on to state as follows: "As the evidence is to the effect that the Appellant has completed construction of the expanded milling plant which stands on the Respondents Stand 20609 and the Appellants 2061 0, it would not make logic or make practical sense to order as claimed under claims 4, 5, 6 and 7. I have also taken into account the fate of employees employed by the Appellant. In place of claims 4, 5, 6 and 7 upon which the claims succeed, it is ordered that the Respondent shall take possession of Stand No 20611 belonging to the Appellant, free of all encumbrances forthwith and without further court Orders." 3.2 The learned Judge went on to make a further finding that, the facts of the case show that the Appellant's own negligence or wilful blindness or contrived ignorance in -J 5 - ascertaining the boundaries, caused the so called innocent mistake under which the Appellant labored, if at all. 3.3 The learned Judge in ordering the Appellant to pay substantial compensatory and exemplary damages then directed as follows: "The evidence is clear that the Appellant has been able to raise millions of dollars by mortgaging a plot in the same area and of the same size as the plaintiffs Stand 20609. It is therefore ordered that the Appellant pays to the Respondent substantial compensatory and exemplary damages for wilful trespass, encroachment and illegal occupation and development of the premises and property to the detriment and for Zoss of opportunity by the plaintiff to own and use the said property as the Appellant has done, taking into account the value realized by the Appellant in mortgaging plots in the same area, of similar size to raise funds for its expansion of the milling plant. The same to be assessed by the Deputy Registrar as appropriate." 4.0 ASSESSMENT BY THE REGISTRAR -J 6 - 4 . 1 After considering the evidence and arguments by the parties, the Registrar dismissed the Respondents claim for substantial compensatory damages in the sum of US$7,858,387 .20. In dismissing the claim, this is what the Registrar said: "However, the question I ask myself is whether this is a proper case in which to award damages for loss of potential business opportunity to the tune of US$7,858,387.20 representing profits which are said to have been realized over a period of eight years ... (refer p age 15 of the record) ... The claim and prayer the plaintiff humbly implores me to award damages for loss of potential busin ess opportunity and profits. For the r eason given on this aspect, I d ecline to grant the prayer as, in my view, the p laintiff has failed to adduce evidence enough to prove its case on a balance of probabilities. I accordingly decline to award damages for loss of potential business opportunity and profits. " -J 7 - 4.2 The Registrar then wen t on to consider damages in respect to loss of opportunity to develop the land. In formulating the relief, the Registrar couched it in this manner. "The second prayer by the plaintiff is the award of damages in respect of loss of opportunity to develop Stand No. 20609 Lusaka; equivalent to the funds raised from the said land as the defendant has in the sum of US$3, 750,000 or more." 4 . 3 The Registrar in that respect was of the view that he was bound by the Judgment of the court below and found that this was a proper case in which to award to the plaintiff the total sum of US$3,750,000 .00 as damages for denied use of Stand 20609 as guided by the Judge. (this is what he said in taking into account) 4.4 The Registrar, in addition, awarded the sums of K320 ,723.91 as consequential damages related. He furth er awarded the sum of KS00,000 .00 as exemplary damages. 5.0 THE APPEAL -J 8 - 5.1 Dissatisfied with the Judgment, the Appellant has appealed to this Court, advancing three grounds couched as follows: (i) That the honourable court misdirected itself in law and fact when it awarded the Respondent the unconscionable sum of United States Dollars Three Million Seven Hundred and Fifty Thousand (US$3, 750, 000.00) as damages for loss of use of land on account of the loan facility that the Appellant benefitted from when the loan facility was attributable to several properties and assets and not just one property. That the court misdirected itself when it did not find that valuation of the property in question, being LUS/20611 , Lusaka is K540, 000.00. That the court further erred when it did not find that the Respondent had no viable business or good will that any bank would have taken into account in order to grant -J 9 - the Respondent a loan facility of US$3, 750,000.00 had the Respondent been in full possession of the property and that in any event, the Respondent did in fact obtain a loan facility from Cavmont Bank using its certificate of title for stand LUS/20609 and did in fact benefit therefrom. (ii) That the honourable court misdirected itself in law and fact when it awarded the Respondent the sum of United States Dollars Three Million Seven Hundred and Fifty Thousand (US$3, 750,000.00) as damages for loss of use of the land when the same court had already established in the same Ru ling that the Respondent did not adduce any coherent evidence to prove that it had a viable business opportunity that could have persuaded the court to award them damages for loss of business opportunity hence it goes without saying -J 10 - that an award of US$3, 750,000.00 as damages for loss of use is equally not justified as the Respondent did not have any viable business that would have persuaded any Bank to award the Respondent with the sum of US$3, 750,000.00 had they been in possession of the property, hence this amounts to unjust enrichment which goes against the principles of natural justice. (iii) That the honourable court misdirected itself in law and fact when it awarded the Respondent the sum of Zambian Kwacha Three Hundred and Seven Thousand Two Hundred and Twenty Three and Nineteen Ngwe (K307,223.19) as consequential damage when the Respondent did not adduce any evidence by way of exhibiting a contract of sale to prove that the Respondent was about to make -J 11 - K614,447.42 as proceeds of the sale had he been in full possession of his property. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 The first and second grounds were argued simultaneously as one. Our attention was drawn to the directive contained in the Judgment of the learned Judge which appears at page 171 of the record of appeal (the record) at page J27 of the Judgment, which we earlier alluded to. It was submitted that the Registrar, in awarding the Respondent the sum of US$3,750,000, relied on the aforestated directive which was obiter dicta and went on to state as follows: "For the avoidance of doubt, I do award to the plaintiff the total sum of US$3, 750,000.00 as damages for denied use of stand 20609. In arriving at this amount, I took into account as guided by the Honourable Judge at page J27 of the Judgment to the effect that I was to take into account, the value realised by the defendant in mortgaging plots in the same area, of similar -J 12 - size to raise funds for its expansion of the milling plant." 6.2 It was submitted that the Registrar erred in law and fact when he determined that he was bound by the learned J u dge's obiter dicta. It was further submitted that, even if the directive was not obiter dicta, the Registrar clearly misinterpreted the words. It was contended that, the words were to the effect that the Respondent be compensated for damages, taking into consideration the value realised by mortgaging the Respondent's property and not the value of all assets that the Appellant used as collateral to secure th e mortgage. 6.3 We were invited to analyse the mortgage debenture at pages 259- 279 of the record. It was submitted that the court will notice that the Appellant benefited from a loan facility of US$3,750 ,000 using a series of mortgages and debentures, which included several different properties, plants, equipment, a bank guarantee and property that was adjacent to the Respondents' property which was occupied by the Appellant. 6.4 According to the Appellant, the value of the bare land can -J 13 - be determined by referring to the valuation report at pages 242-258 of the record. That at page 249 , it shows that the value at the time the Appellant was obtaining a loan from Inda Zambia Bank Limited was in the sum of K540,000 6.5 It was submitted that the cardinal principle in awarding damages is ((restitution in integrum," meaning, in so far as money can do it, the law will endeavour to place the injured person in the same situation as he was before the injury was sustained. That the primary purpose of any award of damages is to compensate the party to whom h arm or loss has been occasioned. Further that damages serve as a means of restoring a party to th e position they were in prior to the damage , loss or injury occurring. 6.6 The Appellant to that effect relied on the case of Abraham Mohammed and Alamtara Transport Limited v Safeli Chum bu 1 , where the Supreme Court held as follows : "The general rule as to the normal measure of damages for tort is the value of a chattel at the time of loss." -J 14 - 6. 7 Fu rther reliance was placed on the case of Livingstone v Rawyards Coal Co.2 where Lord Blackburn had this to say on the measure of damages: "That sum of money which will put the party who has been injured, or who has suffered loss, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation." 6 .8 It was the Appellant's contention that in assessing the quantum of damages, it is not only imperative, but prudent to have due regard to the actual loss suffered by the Respondent, so as to arrive at the monetary value being the compensatory damages. That the claimant must prove the actual loss. According to the Appellant, this is therefore a proper cause in which to award the sum of K540,000.00 as per the valuation aforestated or the sum of K614 ,477.42 as per the alleged sale by the Respondent or better still, the average of the two values. 6.9 The Appellant contended that the award of US$3,750 ,000 amounts to unjust enrichment and is against public policy. That it was shown in the court below that the -J 15 - Respondent did not have any viable business that could warrant a bank to grant them a loan of US$3,750,000. It was submitted that the award was an enrichment to the Respondent at the expense of the Appellant who obtained a loan and paid it back with interest. 6.10 According to the Appellant, the Judgment of Nyambe J, was clear in that the assessment was to be conducted independently. That in his assessment, the Registrar should have only taken into account the actual value of the property that was lost. 6.11 As r egards the third ground, the Appellant submitted that the Registrar misdirected himself in law and fact when he awarded the Respondent the sum of K307,223. l 9 as consequential damages , when the Respondent did not adduce any evidence by way of exhibiting a contract of sale to prove that the Respondent was about to make K614 ,447.42 as proceeds from the sale, h a d h e been in full possession of the property . It was submitted that the award was speculative a s the Respondent did not provide evidence to prove actual loss. 7.0 RESPONDENT'S HEADS OF ARGUMENT -J 16 - 7.1 The Respondent filed its arguments on 8 th November 2021. In responding to the first and second grounds, the Respondent took us through the meaning of obiter dictum, as opposed to ratio decidendi and submitted that ratio decidendi refers to the portion of the Judgment that formed the basis of the Judgment. Our attention was drawn to pages J10-J13 of the Judgment from the court below. It was submitted that the Appellant's witness, Christopher Mutale admitted that the Appellant could not swap properties with the Respondent as one of the plots was already mortgaged. 7.2 Our attention was drawn to page 160 of the record, page J16 of the Judgment, where the learned Judge in the court below had this to say: "Clearly the defendant knew prior to the commencement of the expansion of the Milling plant that Stand No. 20609 belonged to the plaintiff at the stage when the defendants expansion plans were in the planning stage. It is the defendant's own negligence or disregard of -J 17 - the approved boundaries which led to the encroachment and not the fact that the defendant was shown adjoining Stand No. 20609 by the vendor of 20610. This assertion holds no water and is a futile attempt by the defendant to pass the buck and not take responsibility for its negligent action." 7.3 Further, the Respondent referred us to page 171 of the record (page J27 of the Judgment), where the trial Judge had this to say: "The evidence is clear that the defendant has been able to raise millions of dollars by mortgaging a plot(s) in the same area and of the same size as the plaintiffs Stand 20609. It is therefore ORDERED that the defendant pay to the plaintiff substantial compensatory and exemplary damages for wilful trespass, encroachment and illegal occupation and development of the plaintiffs premises and property to the plaintiffs prejudice and detriment; and for loss of opportunity by the -J 18 - plaintiff to own and use the said property as the defendant has done, taking into account the value realised by the defendant in mortgaging plot(s) in the same area, of similar size to raise funds for its expansion of the milling plant. The same to be assessed by the Deputy Registrar as appropriate." 7.4 It was submitted that, the aforestated Order by the court below, is binding as it forms the ratio decidendi. It was further submitted that, in fact apart from obtaining a loan of US$3,750,000 using a mortgage and not debenture, the Appellant also obtained K8,500,000 which translated to US$1,493,848.86 bringing the total amount the Appellant obtained by simply mortgaging a bare plot to approximately US$4,493,846.86 7.5 It was the Respondent's contention that the Registrar was correct when he awarded damages similar to what was obtained by the Appellant when it mortgaged a bare plot. That the Registrar awarded only US$3,750,000, when the full value obtained was approximately US$4,493,848.86. -J 19 - According to the Respondent, it is therefore at pains to see how the award was unfair. 7.6 It was the Respondent's submission that "taking into account" meant that the Registrar ought to have considered the amounts that were realised by the Appellant. That this was done by the Registrar when at page 19 of the record (J12 of the Judgment) stated as follows; "On this aspect, I do agree with the plaintiff that the defendant got a mortgage facility of over US$3,000,000. This is because Mr Christopher Mutale, did acknowledge the fact that an amount of over US$3,000,000 was obtained save that he added some included plant and equipment. This I found to have been contrary to the Judgment which clearly showed that they got US$3,000,000 by mortgaging a bare plot ... " 7.7 Based on the aforestated, we were implored to maintain the findings in the Judgment by Nyambe, J and the Ruling on review to the effect that, the Appellant should pay damages taking into account what was realised by -J 20 - mortgaging a bare plot. That we should not allow the Appellant to change the initial J u dgmen t , so that it may suit its cau se. 7 .8 On the issu e of m ortgages and debentu res, it was submitted that alth ough both are credit facilities offered by banking institutions, t h ey are different in form. That it is therefore a misconception for t h e Appellant to argue that the two are one. 7.9 On the issue of the measure of damages, the Respondent drew our attention to the learned auth or of McGregor on Damages 1 at paragraph 1501 , regarding a case of when a party wrongfully deprives another of land, where the following was stated: "Where the defendant wrongfully deprives the plaintiff of his land, the plaintiff will generally wish to recover not the value of land but the land itself. The principal action is therefore an action for the recovery of the land, historically better known as ejectment. Damages will thus generally be limited to loss arising from the period of wrongful occupation by the defendant." -J 21 - 7. 10 We were further referred to paragraph 1503-1505 where in stating that the normal measure of damages has evolved over time from the market value of the land in question to the benefit obtained by the defendant by being in possession of the land, the learned author had this to say "The normal measure of damages is the market rental value of the property occupied or used for the period of wrongful occupation or user. There is little authority, but this measure is consonant with general principle and with the name of the action for wrongful occupation as one for mesne profits... One issue which has received much attention by the courts is whether the plaintiff is entitled to the market rental value where he cannot be said to have lost this amount because he would not have let out the land during the period of occupation or more particularly would have let out its use during the period of the user ... " 7.11 According to the Respondent, based on that authority, Nyambe, J and the Registrar were on firm ground when -J 22 - they awarded damages in the sum of US$3,750,000 as damages for loss of use of land. That this was done taking into account that the Appellant had raised approximately US$4,493 ,848.86 from mortgages on a bare plot. 7.12 On the issue of unjust enrichment, it was submitted that this is an equitable principle of law which occurs when a person is enriched at the expense of another in circumstances that the law sees unjust. It was submitted that the 2016 Judgment gave direction as to the manner in which damages were to be assessed and the Registrar followed the direction. It was contended that the Respondent is entitled to damages that reflect the Appellant's benefit from the trespass and · illegal possession. That the said benefit is the mortgage and this therefore is not a matter in which unjust enrichment can be applied. 7. 13 In response to the third ground, the Respondent relied on the case of Victoria Laundry v Newman Industries Limited3 , where the court stated that it was unnecessary to prove that the defendant had specific knowledge of the contracts that had been lost as a result of their actions . -J 23 - That damages would be awarded for losses which could reasonably have been expected to be lost . The Respondent conceded that no contract had been exhibited to show what would have been realised, had the Respondent sold Stand No. 20609. That no contract could have been exhibited in respect to the potential buyer, because the Appellant was in possession of the land. That in the Respondents view, the value of the lost contract, K307 ,223.91 is reasonable and a direct consequence of the Appellant's occupation of the Respondent's land. We were urged to maintain the award 8.0 RESPONDENT'S CROSS APPEAL 8.1 The Respondent filed a notice of cross appeal on 7 th June 2021 advancing one ground of cross appeal couched as follows: "The learned Registrar of the court below erred in law and fact when he found that the Respondent was not entitled to damages for loss of potential business opportunity and profits relating to the television business." 8.2 The Respondent's contention is that the Registrar ought to -J 24 - have granted the damages for loss of potential business opportunity and profits relating to the television business considering that the Respondent had actually interacted and communicated with the Chinese counterpart with the intention of setting up the television factory. 8.3 Reliance was once again placed on the learned author of McGregor on Damages 1 at paragraph 1, where he states as follows: "Damages are pecuniary compensation obtainable by success in an action for a wrong which is either a tort or breach of contract." 8.4 It was submitted that, damages are awarded to a party after the said party has shown to the required standard of proof that there was a wrong committed against them. We wer e r eferred to paragraph 7 , where the learned author goes on to state as follows: "Before damages can be recovered in an action, there must be a wrong committed .... Even if a loss has been incurred, no damages can be awarded in the absence of a wrong; it is damnum sine injuria. -J 25 - Therefore the preliminary question to be answered before any issue of damages can arise is whether a wrong has been committed." 8.5 It was submitted that based on the Order by Nyambe, J the Registrar was directed to assess three main damages, namely: (a) Compensatory damages (b) Exemplary damages and (c) Damages for loss of opportunity to own and use the land 8.6 According to the Respondent, as regards damages for loss of opportunity by the Respondent to own and use the property, the Respondent had shown to the Registrar that it had intentions of setting up a television business on the land, as shown in the correspondence between the Respondent and their Chinese counterparts contained in the amended affidavit in support of notice of assessment of damages. That the Respondent also showed that the sole reason that prevented the Respondent from embarking in the television business venture was because -J 26 - the land on which they intended to set up the business was forcefully occupied by the Appellant. 8. 7 The Respondent further submitted that, it anticipated to be making a profit of about US$982,298 annually. That it was deprived of accessing the land for a period of eight years, therefore bringing the total it would have made to US$7,858,387.20 8.8 The Respondent conceded that there was indeed a contradiction on the dates by the witnesses, which the Respondent attributed to human error, which could not go to the root of the case because the document at page 19 of the record was proof that there was a meeting between the Respondent's shareholders and the minutes of the same meeting were duly executed by the Chairperson and the Secretary 8.9 The Respondent contended that the denial by the Registrar to award damages for loss of opportunity was in breach of his duty and directive to assess the damages payable. That it is trite that the object of assessment of damages is not to determine if a wrong has been committed but rather to using guidelines provided in the main case to determine -J 27 - the damages payable. Our attention was drawn to the case of ZCCM Investments Holdings PLC v Mufalali & Others4 where the Supreme Court stated as follows: "A Judgment on assessment is in essence the Judgment of the trial court as the direction on assessment proceeds from it. It is accordingly to be understood as "one whole complete Judgment" of the court." 8.10 According to the Respondent, the Registrar exceeded his powers by varying the Order of the trial Judge by entirely denying to award the Respondent damages for loss of opportunity to own and use the property. We were beseeched to overturn the decision of the Registrar denying the Respondent the award and Order the Appellant to pay damages for loss of opportunity and use in the sum of US$7 ,858,387 .20 9.0 APPELLANT'S RESPONSE TO THE CROSS APPEAL 9.1 The Appellants did not file heads of argument in response to the cross appeal. They instead relied on their arguments in support of the appeal. -J 28 - 10.0 CONSIDERATION AND DECISION OF THE COURT ON THE MAIN APPEAL 10.1 We have considered the Judgment being impugned and the arguments by the parties. Before we venture into the determination of the appeal, we hasten to state that we are concerned with the lawyer's non-compliance of our rules on the manner in which the grounds of appeal are couched. 10.2 Order 9 (2) of The Court of Appeal Rules 1 (CAR) provides as follows: "A memorandum of appeal shall set forth concisely and under distinct heads, without argument and narrative, the grounds of the objection to the Judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively." 10.3 A perusal of the memorandum of appeal herein shows-that apart from the grounds of appeal being prolix, they contain arguments and narratives, which is against the spirit of the aforestated provision of our rules. We should at this -J 29 - stage warn that if this tendency continues we shall, in future not hesitate to dismiss appeals for non-compliance. For now, we will proceed to determine the appeal, though with difficult in making out the grounds of appeal, as there was no objection to the grounds raised by the Respondent. 10.4 The first and second grounds of appeg.]_, when considered with the arguments seem to attack the Registrar for awarding the Respondent the sum of US$3,750,000 as damages for loss of use of the land. In the alternative, the Appellant argues that the learned Registrar should have awarded the Respondent the sum of K540,000 being the value of the land. 10.5 In the case of The Attorney General v Felix Chris Kalenga 5 , the Supreme Court, on when an appellate court can interfere with damages had this to say: "Before an appellate court interferes with the findings of the trial court as to the amount of damages, it must be shown that the trial court has applied a wrong principle or has misapprehended the facts or that the award is so -J 30 - high or so low as to be utterly unreasonabl«:, or is an entirely erroneous estimate." 10.6 The same holding was made in the case of Times Newspapers Zambia Ltd v Alias Andrew Kashita6 wherein the Supreme Court held inter alia as follows: "Although an appellate court will not normally interfere with an assessment of damages, it will do so where the lower court has misapprehended the facts or misdirected itself on the evidence. 10.7 We, from the onset, note that the award of US$3,750,000 was made under the heading of substantial compensation in respect to payment of damages for loss of opportunity to develop and use the land. The object of damages for breach as submitted by the Appellant is indeed to put the claimant as nearly as possible in the position he would have been but for the breach, in so far as is possible by payment of money. Compensatory damages are defined by the learned authors of Black's Law Dictionary2 at page 416 as; -J 31 - " 1 . Damages sufficient in amount to indemnify the injured person for the loss suffered-often shortened to compensatories. 2. See actual damages ... actual damages: an amount awarded to complainant to compensate for a proven injury or loss: damages that repay actual losses ... " 10.8 McGregor on Damages3 13th edition at page 3, paragraph 1 defin es damages as: "Pecuniary compensation, obtainable by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum, which is awarded unconditionally." 10.9 We note that the loss of use we are dealing with here arises out of tort and not contract. Therefore it is a consequential pecu niary loss in r esp ect to a b are piece of land and therefore t h e issu e of equating the recoverable damages to mesne p r ofits or r en tals d oes not arise -J 32 - 10 .10 We note that in formulating the award on the head of loss of opportunity to own and use the land, the learned Registrar went on to state as follows : "The second prayer by the plaintiff is the award of damages in respect of loss of opportunity to develop Stand No 20609 Lusaka; equivalent to the funds raised from the said land as the defendant has in the sum of US$3,750,000.00 or more. " (The underlining is ours for e mphasis only) 10.11 Having said that, the Registrar then opined that, he was bound by the Judgment of the court b elow and found that this was a proper case in which to award the Respondent, the total sum of US$3,750,000.00 as damages for d enied use of Stand 20609 as guided by the Judge. 10.1 2 In the Judgement on assessment, the learn ed Registrar observed and rightly so, that the assessment was to be based on the Orders and directives of the learned Judge of the High Court. We are of the view that, the directive by the court below was sort of ambiguous and therefore difficult to attach any valuable meaning to it. However, it -J 33 - is clear from what the Registrar stated on this head, that he misunderstood and misapprehended the directive by the Judge. 10.13 The directive as earlier alluded to was that, in assessing the damages, the Registrar should take into account the value realised by the Appellant in mortgaging a plot of bare land in the same area of similar size to raise funds for its expansion of the milling plant. Taking into account means the fallowing: ( 1) To consider or remember something when judging a situation (2) Take into or bear consideration (3) Bear in mind 10 .14 Taking in to account did not mean the Registrar had to simply equate the damages under this head, to the monies borrowed and secured by the mortgage debenture in the sum ofUS$3,750,000.00. The Registrar needed to conduct an independent assessment based on the evidence adduced by the Respondent in quantifying the damages and in doing so, take into consideration or bear in mind -J 34 - the amount raised by the Appellant borrowing money using a bare piece of land as collateral. The misunderstanding by the Registrar can clearly be deduced from his formulation of the issue for determination under this head of damages, that the damages should be equivalent to the funds raised from the said land as the Appellant had raised in the sum of US$3,750,000. 00 or more 10. 15 The Registrar then goes on to state that, he was bound by the Judgment of the court below and therefore this was a proper case in which to award the total sum of US$3, 750,000.00. It is our view that if indeed that is what the Judge meant, then there was no need for the Judge to refer damages on this head to assessment. The learned Judge could simply there and then have awarded the sum of US$3,750,000.00. 10.16 We note that at the assessment, the Respondent relied on the affidavit in support of the assessment, and one witness. There is no indication from the affidavit evidence and the evidence of its witness as well as an indication -J 35 - from the Registrar in his Judgment that the Respondent by any means quantified this head of damages; either based on the affidavit evidence or at assessment. 10. 17 We state herewith, that borrowing money from a bank and mortgaging ones property and assets is not fund raising nor does one make direct profit from doing that. The monies borrowed have to be paid back to the bank with interest and in most cases the borrower, due to default ends up losing property and assets to the bank. In the view that we have taken, we agree with the Appellant that there was no basis for the award as it was not quantified on assessment. Furthermore it is our view that the award was unconscionable and unjust enrichment and as such devoid of merit. 10.18 As earlier alluded to, the Appellant has , in the alternative, submitted that the Respondent should instea d be awarded the sum of K540,000 .00 which was the market value at the time the Appellant was obtaining a loan from Indo Zambia Bank. Our view, and in agreeing with the Appellant, is that this should have b een the learned -J 36 - Registrar's first port of call 1n line with the object of damages; in order to put the claimant who has suffered loss in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation. 10. 19 In the first place, before looking further into the assessment, the Registrar, should have awarded the Respondent for the value of the land. That coupled with the Order by the court below that the Respondent shall take possession of Stand No. 20611 belonging to the Appellant, 1n our view, amounted to substantial compensation in damages. In addition, the Registrar awarded the Respondent the sum of KS00,000.00 as exemplary (punitive) damages, to make up for substantial compensation. 10.20 In the view that we have taken, we accordingly set aside the award of US$3,750,000.00 and in its place award the sum of K540,000 .00 in general damages 10.21 The third ground of appeal attacks the award in the sum of K307,223.19 as consequential damages. The -J 37 - Respondent's position is that he was about to sell the land as a result of which he would have realised the sum of Kl ,500,000.00. However, because of failure to sell, he had to borrow the sum of K614 , 44 7 . 40 from the bank. On the other end, the Appellant contends that the Respondent, at the assessment, did not adduce any evidence of the transaction such as a contract of sale. According to the Appellant, the award was speculative as no evidence of the actual loss was provided. 10.22 Consequential damages, are damages or losses that do not flow directly and immediately from an injurious act, but that result indirectly from the act. The Respondent, in its argument, did concede that it did not adduce evidence of the transaction. Furthermore, there is no link between the Respondent's failure to sell the land and its borrowing from the bank. In short the Respondent failed to adduce evidence in the quantification of consequential damages. This ground of appeal succeeds and the award of K320 ,723.91 is accordingly set aside. -J 38 - 11.0 CONSIDERATION AND DECISION OF THE COURT ON THE CROSS APPEAL 11.1 According to the Respondent, the Registrar erred when he found that the Respondent was not entitled to damages in the sum of US$7 ,858,387 .20 for loss of potential business opportunity and profits relating to the television business. In agreeing with the reasons advanced by the Registrar in dismissing the award, it is our view that in any case the claim herein was an afterthought on the part of the Respondent as there was no nexus between the land and the television assembly factory. 11 .2 In any case, a claim for loss of potential business is a claim for special damages; which must be pleaded and proven with evidence. In emphasising this point, the Supreme Court in the case of Mhango v Ngulube & Others8 had this to say: " .. . it 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 that loss with a fair amount of certainty. As a general rule therefore, -. J -J 39 - any shortcoming in the proof of special loss should react against the claimant." 11. 3 There is no evidence on the record that this claim was pleaded and proven. It is clear from the Judgment by Nyambe J, that what she granted was loss of opportunity to own and use the land and not loss of potential business opportunity and profits. We are therefore at a loss as to how this claim came up for consideration on assessment. In the view that we have taken the cross appeal fails for lack of merit. 12.0 CONCLUSION 12.1 For the avoidance of doubt, the appeal succeeds and is accordingly allowed and the Respondent as a result, is entitled to the following damages. (i) The sum of K520,000 being the market value of the land at the time the Appellant was obtaining the loan from Indo Bank Zambia (ii) The sum of KS00,000 being exemplary damages as this head was not challenged by the Appellant ... -J 40 - (iii) The amounts above are to carry interest as awarded in the Judgment of Nyambe , J . 12 .2 The cross appeal fails and is accordingly dismissed . Costs are to the Appellant and th e to be paid forthwith. Same to b e taxed in J. CHASHI COURT OF APPEAL JUDGE j M. J . SIAVWAPA COURT OF APPEAL JUDGE A. M BANDA-BOBO COURT OF APPEAL JUDGE