Stuart Sikazwe (T/A Musekelelwa Enterprises) v Vurun Beverages Zambia Limited (2018/HP/0247) [2023] ZMHC 39 (29 March 2023)

IN THE HIGH COURT OF ZAMBIA ,. AT THE PRINCIPAL REGISTRY • HOLDEN AT LUSAKA (Civil Jurisdiction) .... BETWEEN: 2018/HP/0247 STUART SIKAZWE (T / A MUSEKELELWA ENTERPRISES) PLAINTIFF AND VARUN BEVERAGES ZAMBIA DEFENDANT Coram: Mikalile, J this 29th day of March, 2023 For the ]?laintiff: Mr. ,J. M. Chimembe - Messrs JMC & Associates For the Defendant: Mr. B. Mulunda- Messrs Apton & Partners .. JUDGJV. CENT Cases referred to: 1. Zambia Railways v. Pauline S. Mundia & Another (2008) ZR 287 2. Colgate Palmolive (z) Inc v Able Shemu Chuka and 110 Others, Appeal No. 185 of 2005 (unreported). · National Drug Company Limited and ZPA v Mary Katongo Appeal NO 79/2001 4. PhilipMhango v. Dorothy Ngulube_and Others (1983) ZR 61 Text referred to: Chitty on Contracts, General Principles, Volume 1 (30th edition) 2008, London: Sweet & Maxwell Introduction (1) The dispute herein arises from a Distribution Contract entered into by the parties. The said contract commenced on 6 th October, 2011 and was to last for 48 months. However, the contract did not determine by effluxion of time and as a result, the plaintiff commenced this action making various claims for refunds, losses suffered and 9amages for··breach of contract. The ., plaintiff is of the firm view that the defendant prematurely terminated the contract while ♦ I the ' defendant denies this f • allegation asserting that it merely suspended the contract because the plaintiff failed to meet its obligation under the contract. Pleadings (2) The action was commenced on 6 th February, 2018 by way of Writ of Summons and Statement of Claim. The plaintiff is claiming the fallowing reliefs: (i) The sum of K 132,207.42 made up of the following: - Deposit on empty crates - - - Short deliveries Target claim Fwenya fwenya promotion - Beer return - Price markdown - Empty crates claim promotion - - - - Visi cooler claim RGP 1 91 0 empty crates Ice box claim NGP 572 Ice box claim NGP 674 empty crates Security deposit - Rentals paid for the premises where the plaintiff was J2 K 42,734.97 K 9,485.83 K 3,091.90 K 3,875.43 K 3,645.29 K 7,373.00 K 12,000.00 K 8,000.00 K 8,000.00 K 6,000.00 K 1,000.00 operating wages for workers .. - transport costs to and from Lusaka - water and electricity K 12,000.00 K 12,000.00 K 1,200.00 K 1,800.00 (ii) Exemplary and general damages for breach of contract and znconvenience (iii) Interest and costs (iv) Any other relief the court may deem fit. (3) The statement of claim reveals that the plaintiff is a businessman specializing in the supply and distribution of various products and carries on business in Northern Province. (4) The defendant specializes in the production and manufacturing of soft drinks. (5) By a written contract dated 6 th October, 2011, the defendant appointed the plaintiff as its distributor for its products in Mpulungu District. The contract was to run for 48 months effective 6 th Octa ber, 2011. (6) It was also an express term of the contract that the plaintiff will pay a refundable security deposit of K 1,000.00 (rebased) to the defendant immediately upon signing the contract. (7) In April, 2013, the defendant unilaterally changed the system by appointing a super dealer with whom the plaintiff was to deal and before changing the system, the defendant asked the plaintiff to clear his accounts with the defendant. J3 w(8) The plaintiff asked the defendant to send him a statement of account from 6 th October, 2011 to -17th April, 2013. In the statement, the defendant alleged that the plaintiff had an outstanding debt of K 25,985.98 in liquid account, that is actual drinks, and a debt of K 70,487.00 for empty crates. (9) According to the plaintiff, from 5 th to 7 th August, 2013, he approached the defendant's officers, Vikas Kapoor and Ahmed Mustaqueen to reconcile the alleged outstanding amounts. Further attempts at reconciliation on 22nd and 24th August, 2013 failed. (10) The plaintiff also avers that the defendant owes him the sum of K 105, 207.47. As a result of the cancellation of the contract, the plaintiff incurred losses through rentals, wages for workers, transport costs, water and electricity totaling K 27,000.00. ( 11) The plaintiff further avers that upon failure to reconcile the accounts, on 6 th December, 2013, the defendant prematurely terminated the contract. {12) On 1st July, 2014, the defendant sued the plaintiff over the same matter but later discontinued the matter. However, the plaintiff incurred a sum of K 5,000.00 as legal expenses which amount he wishes to recover from the defendant. (13) According to the plaintiff, he has suffered loss and damage hence the claims that he makes. J4 ~(14) The defendant entered appearance on 14th -February, 2018. The defendant admitted that the plaintiff did pay the security deposit of K 1,000.00 but that the same was only refundable if the plaintiff met conditions set out in the distributorship agreement. (15) The defendant avers that the agreement was terminated in line with the termination clause in the agreement as the plaintiff had failed to make payments when they fell due. (16) The defendant denies ever owing the plaintiff the sums of money he is claiming or that it is responsible for the losses suffered by the plaintiff. The plaintiff is therefore not entitled to any of the reliefs sought. (17) The defendant further avers that at the time of termination of the distributorship agreement, the plaintiff admitted in writing to owing the defendant the sum of K 12,792.00. Despite several reminders, the plaintiff has refused, failed or neglected to settle the said debt. Consequently, the defendant has suffered loss and damage. (18) The defendant now counterclaims the following: i) An order that the plaintiff pays the sum of K 12,792.00 for the goods supplied to the plaintiff under the agreement. ii) Interest iii) Any other relief the court may deem fit iv) Costs. JS ( 19) The plaintiff filed a reply and defence to counterclaim on 4 th April, 2018 wherein he denied owing the sum claimed. Evidence at trial (20) The plaintiff testified on his own behalf and called one other witness. The defendant called one witness. Plaintiffs case (21) The plaintiff (PWl) testified in line with the statement of claim. He identified the contract at pages 2 to 10 of his bundle of documents and told court that it was valid until 6 th October, 2015. However, In April, 2013, the defendant appointed a super dealer from whom the plaintiff was to get the products. (22) The defendant told him to settle any outstanding account before switching to the super dealer. According to the plaintiff, he asked for a statement but the same was not given to him. Instead, he received an email indicating the outstanding balances for both empty crates and liquid products. The plaintiff disputed the balances. He identified the ledger maintained by the defendant as his account at pages 13 to 20 of his bundle. (23) In August, 2013, the plaintiff travelled to the defendant's business for a ledger reconciliation. It was found that the K 25,985.00 shown as a debit balance was not actually a debit but was supposed to be credited to his account for the products J6 received in damaged form. The K 70,487.00 was coming from an incomplete statement which the defendant gave him as shown on the document at page 16 of his supplementary bundle. According to the plaintiff, the defendant picked K 70,487.00 as the outstanding balance which was not the case. (24) It was the plaintiff's evidence that the bank reconciliation he conducted showed that he does not owe the defendant. The amounts appearing as owing were created by the defendant's under posting on the ledger maintained on his account. He showed court 3 cheques whose amounts when posted to his ledger were reduced as follows: K 23,370.00 to K 20,370.00; K 33,080.00 to K 31,400.00; K 24,000.00 to K 16,000.00. (25) The plaintiff then proceeded to testify on the amounts claimed and how each one of them arose. (26) It was further his evidence that the K 12,792.00 claimed by the defendant arose from the under posting on his account. (27) When cross examined, the plaintiff stated that the distributorship agreement was terminated on 6 th December, 2013. The termination letter was sent via email hence not signed. According to the plaintiff, the email of 17th July indicated that his statement of account had an outstanding amount of K 25,985.00 and no outstanding amount in the empty crates account. J7 (28) He also stated that the outcome of the reconciliation at the defendant's premises was that there was a dispute with the defendant insisting that there was an outstanding amount. · The plaintiff was referred to the document dated 7 th August, 2013, at page 6 7 of his bundle wherein he acknowledged owing the defendant the sum of K 25,479.00. The plaintiff, however, stated that he signed that statement before he had sight of the full statement of account which crune with the termination letter. (29) The plaintiff stated that the statement dated 17th March, 2014 at page 21 of his bundle showing an outstanding balance of K 12,792.98 was the final reconciliation of ·the ledger. The bank reconciliation, however, showed that this amount was paid to the defendant's bank account. (30) Still in cross, the plaintiff conceded that the contract under clause 4.5 allowed the defendant to cancel or suspend delivery of products when the plaintiff failed to pay for the products. (31) On the claim for legal fees for the matter commenced in the Subordinate court, the plaintiff conceded that he did not file a notice of appointment of advocates. It was his evidence that when his advocate proceeded to conduct a search, he was informed that there was no such matter. (32) In re-examination, the plaintiff testified that the K 25,479.00 that was initially claimed by the defendant was rendered void after the bank reconciliation. He also testified that the condition J8 was that he had to pay 1n advance before products could b e delivered. (33) PW2 was Emmanuel Njobvu, a Marketer/Business Administrator who told court that he was appointed by the plaintiff to carry out reconciliation of his business account with the defendant. (34) According to PW2, he looked at the bank statement showing the payments made by the plaintiff and compared it to what was delivered to the plaintiff. His conclusion was that the plaintiff had overpaid the defendant by K 217 .33. (35) Under cross examination, PW2 stated that the task performed for the plaintiff was an audit. He acknowledged having generated the stock movement document. Defendant's case (36) Defence Witness (DW) was George Mwanza, an accountant. He testified that the distribution contract did not last 48 months as the plaintiff defaulted on payments. According to DW, the contract was not terminated but was just suspended for failure of payment of K 12,000.00 by the plaintiff. The suspension was in accordance with clause 4.5 of the contract. The K 12,000.00 plus is still pending. (3 7) To arrive at this amount, a reconciliation was done around 2014 and the amount was brought to the plaintiff's attention. J9 The plaintiff agreed to owing the amount and signed for it as per page 23 of the defendant's bundle. (38) The witness disowned the termination letter dated 6 th December, 2013. It was his testimony that all communication from the defendant is on company letter head and is signed. The said termination letter has none of those features. The witness further testified that in matters of distribution contracts, letters are signed by the head of the sales department. (39) DW went on to address the claims. He disputed the claim for deposit on empty crates and averred that the plaintiff needed to prove it with deposit slips. He explained that the deposit on empty crates is an amount that the distributor pays the defendant before dispatching the first order but after signing the contract. That money is only refundable if the crates the plaintiff is holding within his distributorship are returned to the defendant. (40) According to DW, the plaintiff definitely paid the deposit before the first consignment was delivered to him but there ought to be proof of that payment. This payment should reflect on the crates statement at page 20 of the defendant's bundle. However, the statement shows an opening balance of 3,286 crates as at 1st January, 2013. On 3 rd January, 2013, a truck collected 698 crates leaving a balance of 2,588. In summary, the plaintiff ought to prove that all crates in his possession were returned to the defendant. JlO ·(41) The only deposit paid by the plaintiff was K 1,000.00 (42) On short deliveries, DW testified that when the plaintiff received deliveries, he would check the quantities and sign on the invoice. When the invoice was taken back to the defendant, any shortages or short deliveries were adjusted on the plaintiffs account according to what he signed for as received. Thus, the plaintiff should have shown the exact invoices showing the short deliveries which he feels were not adjusted on his account. (43) On target claim and fwenya fwenya promotion, DW testified that the plaintiff ought to prove which month the target claim and promotion were not posted to his account. (44) DW denied the beer return· claim. He alleged that at no point has the defendant dealt in alcoholic beverages. (45) On markdown, DW admitted that the defendant would at times ask the plaintiff to sale products below the cost price and the adjustment would thereafter be posted on the plaintiffs account. The plaintiff, however, needed to show court the transaction he was referring to. (46) On the empty crates claim promotion, DW explained that it is different from the deposit on empty crates and arose when the plaintiff sold products together with bottles under the defendant's instructions. He showed court an entry dated 31s t December, 2011 where there was a claim for 880 bottles in the J11 sum of K 1620.67. Thus, the plaintiff ought to show court which transactions led to the accumulation of K 12,000.00. (47) On the Visi cooler, DW testified that it's the defendant's equipment for cooling the defendant's products. Upon separation, the cooler is returned to the defendant. The same applies to the ice box. (48) On the claim for a refund of K 1000.00 security deposit, DW told court that it is paid back to the distributor upon meeting certain conditions as provided for under clause 6.9.5 of the contract. According to DW, the defendant is holding on to the deposit as the plaintiff is still owing K 12,792.00. (49) On the under posting alleged by the plaintiff, it was DW's evidence that these are as a result of the posting pattern on the plaintiff's account. For instance, he aclmowledged that the defendant received K 24,000.00 from the plaintiff on 7 th September, 2012 but the amount was split into two. K 8,000 was posted to the empty crates account. Another example was that of K 23,370.00 received from the plaintiff on 3 rd December, 2012. K 20,370.00 was posted to the liquid account and K 3,000.00 was also credited to the plaintiff as shown on page 21 of the defendant's bundle. The third amount was K 33,080.00 received from the plaintiff on 18th December, 2012. This sum was split into K 31,400.00 and K 1680.00 and credited to the plaintiff as shown on pages 19 and 21 of the defendant's bundle. J12 (50) On the claims for rentals, worker's wages, transport, utility bills paid and legal costs, DW testified that there was no agreement between the parties, therefore, the claims were unjustified. According to DW, the only justifiable claim is K 1,000.00 security deposit and this can only be paid once the K 12,792.00 is paid by the plaintiff. (51) Under cross examination, DW reiterated that any communication from the defendant must be on company letter head signed by the head of sales. The purported author of the purported letter of termination did not even sign it. He insisted that there was no termination. The plaintiff's account was just suspended. (52) In re-examination, DW told court that clause 4.5 of Distributorship contract speaks to when a suspension can occur, therefore, there was no need to write the plaintiff to suspend his account. (53) DW also testified that the plaintiff was reminded repeatedly to pay the K 12,792.00 owing but he neglected to do so. The account was only suspended after reconciliation. (54) He reiterated that the defendant has never sold beer. (55) This was all the evidence. Submissions J13 (56} At the close of the hearing, the counsel for the plaintiff und~rtook to file written submissions but did not do so despite being granted an order extending the time within which he could file. The defendant's counsel did file on the date ordered and I am grateful for these submissions. I shall not reproduce the submissions but will refer as and when required. Analysis and decision (57) The facts not in dispute are that the plaintiff and defendant entered into a Distribution contract on 6 th October, 2011 valid for 48 months, whereby the plaintiff would purchase the defendant's products, market and resell the said products. The contract, however did not last the stipulated period as the defendant stopped supplying the plaintiff with its products. According to the defendant, this is because the plaintiff breached the contract by failing to settle outstanding dues, which dues were brought to his attention. (58) What is in dispute is the state of the contract. The plaintiff, on the one hand, alleges that the contract was terminated and unjustifiably so as he does not owe the defendant. The defendant on the other hand alleges that it merely suspended deliveries due to failure by the plaintiff to pay what was due which is the sum of K 12, 792.00. (59) Thus, the issues for consideration as I see them are as follows: J14 i) Whether or not the defendant unjustifiably terminated the distribution contract entitling the plaintiff to damages for breach of contract. ii) Whether or not the plaintiff is entitled to the sums claimed in his writ. iii) Whether or not the plaintiff owes the defendant the sum of K 12,792.00 as claimed. (60) Before I delve into the aforestated issues, I remind myself that both parties have the onus to prove their claims. It was stated in the case of Zambia Railways v. Pauline S. Mundia & Another1 cited in the defendant's submissions that the old adage is true that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable. (61) I shall now deal with the issues. Whether the defendant unjustifiably terminated the distribution contract entitling the plaintiff to damages for breach of contract. (62) The evidence on record has established that more than one reconciliation exercise was carried out and the final one done on 17th March, 2014 established that the plaintiff owed the sum of K 12,792.00. The plaintiff acknowledged this sum by appending his signature against it. The evidence also shows that the J15 defendant stopped delivering its products to the plaintiff due to that outstanding amount. (63) On his part, the plaintiff contends that the defendant terminated the contract and is relying on the letter dated 6 th December, 2013 to support his assertion. But, the defendant's witness denied this letter and insisted that the contract was suspended in accordance with the contract and there was no need to write to the plaintiff. (64) I have carefully looked at the letter in issue. I note that as pointed out by the defendant's witness, this letter is not on the defendant's letter head as are all the documents from the defendant on record. Further, the letter was purportedly written by one Godwin Zulu . whose designation is stated as Account Development Coordinator. The letter is not signed. (65) Clearly, there is no proof that this letter was written by the defendant's employee and that he had the authority to write it. I am, therefore, inclined to agree with the defendant that it never wrote a letter to the plaintiff to terminate the contract. (66) My attention was drawn to clause 4.5 of the distribution contract which states: If the Distributor fails to pay the price for any of the Company's products within five {SJ days after the date of the invoice therefor, the Company shall be entitled (without prejudice to any other right or remedy it may have) to cancel or suspend any further delivery to the Distributor under any order, sell or othenvise dispose of any of Jl6 ·~~~=~==~---!!!!!!!!!!!!!!!--------------- - the Company's products which are the subject of any order by the Distributor, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment. (67) It was submitted by counsel for the defendant that the defendant invoked the foregoing empowering clause to suspend the contract as the plaintiff was in breach by failing to make payment. Reliance was placed on the case of Colgate Palmolive (Z) Inc. v. Able Shemu Chuka & Others2 and the case of National Drug Company Limited & Another v. Mary Katongo3 where it was held that: "It is trite law that once parties have voluntarily and freely entered into a legal contract, they become bound to abide by the terms of the contract and that the role of the Court is to give efficacy to the contract when one parly has breached it by respecting, upholding and enf arcing the contract" (68) As has been found, the plaintiff did admit to owing the sum of K 12,792.00 on 17th March, 2014. Therefore, the defendant cannot be faulted for proceeding as it did, that is, invoking the provisions of clause 4.5 of the contract to suspend or cancel further delivery of its products to the plaintiff. The plaintiff did not settle this amount to warrant lifting of the suspension. (69) There being no communication terminating the contract, I find that there was no termination. The defendant can be said to have chosen to treat the contract as continuing and had the plaintiff performed its obligation, the defendant would have been under an obligation to continue delivering its products to the plaintiff. (70) The defendant merely suspended supply of its products to the plaintiff in accordance with the contract. By signing the contract, the plaintiff agreed to be bound by it and was aware of the consequences of nonpayment of the product price which included suspension or cancellation of deliveries. As was stated in the Mary Katongo case cited above, when parties enter into a legally binding contract, it is for the court to respect the terms and conditions of that contract and not to interfere with the terms agreed upon. (71) Clearly, therefore, the defendant cannot be said to have breached the contract when it stopped supplying the plaintiff. I must hasten to add that I am yet to determine whether or not the plaintiff does indeed owe the sum of K 12,972.00. Thus, my finding that the defendant was not in breach is based on the admission by the plaintiff on 17th March, 2014 that indeed the said amount was outstanding. (72) Thus, the claim for damages for breach of contract and inconvenience fails. Whether or not the plaintiff is entitled to the sums claimed in his writ. Deposit on empty crates in the sum of K 42,734.97. J18 (73) The plaintiff has not shown proof that he deposited this amount into the defendant's account. The documents on record do not show such a deposit. The plaintiff, in re-examination, told court that he had to pay in advance for products to be delivered. If this is case, then his claim does not make sense because then it means that the balance ought to have been diminishing as goods were being delivered. There is no proof that it was a requirement that that amount would be paid by the plaintiff and would sit in the defendant's account. (74) Furthermore, it was the defendant's testimony that the plaintiff was required to surrender the remaining crates to the defendant. There is no proof that the plaintiff did so later on proof of the number of crates he surrendered. This claim therefore fails. Short deliveries in the sum of K 9,485.83 (75) The evidence of both parties was that these arose when the plaintiff received less goods than what he had ordered. The plaintiff gave an example of ordering 600 crates and only receiving 599 because one crate had damaged products. The defendant contends that there is no proof of this claim and I quite agree. There was need for the plaintiff to produce invoices showing what he ordered and paid for versus what he received. He did not even show how he arrived at the figure claimed. Target claim in the sum of K 3,091. 90 J19 (76) The plaintiffs evidence was that the defendant would credit his account with a commission if he reached the sales target. • (77) However, there is no proof of how much this commission was and when the plaintiff achieved success to entitle him to the sum claimed. The statement at page 17 to 18 of the defendant's bundle shows the target claims adjusted on the plaintiffs account. Clearly, therefore, the plaintiff ought to have shown the particular target commission earned that was not posted to his account. Fwenya fwenya promotion in the sum ofK 3.875.43 (78) According to the plaintiff, this arose when he had to give away products to winning customers. The sum claimed is the prize money he gave out. (79) Again, there is no proof of how this amount came about or when it was disbursed. One wonders why the plaintiff did not make a claim when the moneys became due. If at all he did, he ought to have produced documents to that effect to support his claim. Beer return in the sum of K 3 1645.29 (80} It was the plaintiff's evidence that the defendant supplied expired beer which he returned worth the sum stated but his account was not credited. The defence witness's testimony, however, was that the defendant has never sold alcohol. J20 (81) I have carefully perused the documents on record and I have not come across anything to sway me into agreeing with the plaintiffs assertion. The contract between the parties refers to 'all Pepsi brands' in schedule 1 but does not indicate that Pepsi brands include alcohol. Thus, the plaintiff has not succeeded to show that he is owed the sum claimed for beer returns. Price markdown in the sum of K 7,373.00 (82) The evidence of the plaintiff was that the defendant reduced the price of products when he still had stock bought at a higher pnce. As such this sum ought to have been credited to his account. (83) Again, the plaintiff needed to sho·w the particular transactions when his account was not adjusted fallowing markdown. Empty crates claim promotion in the sum of K 12,000.00 (84) According to the plaintiff, this arose when the defendant promoted sales and so he had to give away K 12,000.00 worth of empty crates to customers who did not have these empties. In support of this claim, the plaintiff referred court to the statement at page 1 of his supplementary bundle. (85) However, this statement simply shows that 3 00 crates were received and the value was adjusted by K 12,000.00. There is nothing to prove that these cr a tes were given away to customers. Furthermore, this claim apparently arose on or about 30th J21 November, 2011 and yet the plaintiff appears not to have made any claim until his account was suspended by the defendant • months later. K 12,000.00 or K 12 million then was and still is a substantial amount, therefore, it does not make any sense that the plaintiff would sit on this money. The logical conclusion is that he never made any claim for this amount because it was not due to him. Visi Cooler claim empty crates and ice box claim empty crates totaling K 22,000.00 (86) As with the other claims, it was incumbent upon the plaintiff to show when he gave away these empty crates and that the defendant failed or neglected to adjust his account accordingly. The documents relied on show that indeed coolers and ice boxes were delivered to the plaintiff but they do not provide the nexus to the empty crates that he allegedly gave out during the promotion. Security deposit in the sum of K l 1000. 00 (87} It is common cause that the plaintiff did deposit K 1,000.00 and that it was to be refunded to him when dealings ceased. According to the defendant, however, the said amount can only be refunded when the plaintiff settles his account. Thus, whether or not the plaintiff is entitled to be paid this amount is dependent on the outcome of the counterclaim. Rentals, wages, transport costs, water & electricity bills incurred • totaling K 27,000.00 • (88) The plaintiff's evidence 1s that he maintained the place of business whilst awaiting to resolve the dispute between him and the defendant. He thus paid rent at K 1,000 per month, wages at K 1.,000 per month and utility bills in the sum of K 1,800 for the 12 months he was in occupation of the premises. The plaintiff also claims to have spent K 1,200.00 on transport in his travels to Lusaka to sort out the issue with the defendant. (89) The defendant denied the claims asserting that there was no agreement providing for such expenses. (90) I have carefully considered these claims. I am of the view that the success of these claims, if any, was predicated on the success of the claim for breach of contract. As has been found, the defendant was not in breach. That being the case, the defendant cannot be held liable for losses incurred by the plaintiff through this expenditure. These claims therefore must fail. Legal fees - K 5 ,000 (91) The plaintiff claims that he paid a firm called S. W & Associates the sum of K 5,000.00 for the matter in which he was sued by the defendant in the Subordinate court. He produced a bank transfer to that effect. J23 (92) However, the evidence has established that the said law firm never filed a notice of appointment in the discontinued matter. • Further, a close scrutiny of the bank transfer reveals that it was done on 7 th February, 2014 and yet the action in the Subordinate Court was only commenced months later, on or about 2 nd July, 2014. (9~) Clearly, therefore, the possibility that the law firm was paid for other services cannot be ruled out. In light of this possibility, the claim fails. (94) All in all, the plaintiff has failed to prove the amounts claimed totaling K 137, 207.42 except the K 1,000 he paid as security deposit. The plaintiff cannot just throw figures at the court and expect the court to agree with him that these figures are legitimate without actual proof. Even his own witness (PW2) who carried out an audit on his account could not show that the plaintiff was owed the sums claimed. The only figure he found due to the plaintiff was K 217.33. (95) In the case of Philip Mhango v. Dorothy Ngulube_& Others4 it was held that-: Any party claiming a special loss must prove that loss and do so with evidence which makes it possible for the Court to determine the value but with a fair amount of certainty. As a general rule, therefore, any shortcomings in the proof of a spedal loss should react against the claimant. J24 (96) Quite clearly, the evidence presented by the plaintiff is unsatisfactory, and, as was stated in the foregoing case, this • ought to react against him . The counterclaim (97) The defendant has counterclaimed the sum of K 12,792.00. To prove this claim, the defendant produced a document indicating final reconciliation done on 17th March, 2014 and that the plaintiff is owing K 12,792.00. (98) In denying this claim, the plaintiff told court that it arose from the under postings on his account. In cross examination, the plaintiff stated that the bank reconciliation showed that this amount was paid to the defendant's account. (99) I have carefully examined the evidence on record. However, as pointed out by the defendant's witness, there was no under posting by the defendant. The statements on record clearly show that the defendant split the three amounts brought to the fore by the plaintiff, being K 24,000.00, K 23,370.00 and K33,080.00 and posted the split amounts to the liquid and crates accounts. For instance K 33,080.00 was split into K 31,400.00 and K 1,680.00 and credited to the. plaintiff. (lOO)In the circumstances, I find that the plaintiff does indeed owe the defendant the sum claimed as established by the final reconciliation which as seen above, the. plaintiff has failed to challenge. J25 Conclusion - (lOl)The plaintiff has failed to prove on a balance of probability that he is entitled to the claims made . The only amount found due is the s ecurity deposit p aid a t the com mencement of the contract with the d efendant. (102)However, the defendant has proved its counterclaim to the court's satisfaction and is therefore entitled to recover the sum of K 12,792.00. Final Orders (i) The plaintiff 1s hereby ordered to pay the defendant K 12,792.00 (less security deposit in the sum of K 1,000.00) with interest at the average of the short-term deposit rate from the date of counterclaim until judgment and thereafter at the ruling commercial bank lending rate until full settlement. (ii) The defendant is awarded costs of this action to be taxed in d efault of agreement. Leave to appeal is granted. Delivered at Lusaka this 29th day of Marc h, 2023 M. ~ ~ e HIGH COURT JUDGE J26