Suban Petroleum Zambia Limited v Dockland Construction Limited (APPEAL NO. 29/2009; SCZ/8/10/2009) [2013] ZMSC 82 (22 October 2013)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 29/2009 SCZ/8/10/2009 BETWEEN: SUSAN PETROLEUM ZAMBIA LIMITED APPELLANT AND DOCKLAND CONSTRUCTION LIMITED RESPONDENT CORAM: Sakala, C. J., Chibesakunda and Mwanamwambwa, J. J. S., On 11 th August 2009 and 22nd October 2013 For the Appellant: For the Respondent: Mr. MM Mundashi, SC, and with him, Miss L. Kasonde of Messrs Mulenga Mundashi & Company Mr. M Makayi, of Messrs Solly Patel, Hamir and Lawrence JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. • Cases Referred to: 1 . 2. 3. Zulu v Avondale Housing Proiect Limited (1982) Z. R.172. Mhango v Ngulube (1983] Z. R. 61. Zamtel Limited vs Mulwanda (& Another) SCZ Selected Judgment No. 7 of 2012. Other Works referred: 1. Halsbury's Laws of England Vol. 4 paragraph 1179 2. Anson's Law of Contract 28th Edition. Page 625. 3. Emden and Gills Building Contracts & Practice [1969) ~ Edition. Page 163. We regret the delay in delivering this Judgment. It is due to a heavy workload. Former Chief Justice Sakala was part of ,' J.. ,,, -J2- the Court that heard this appeal. He has since retired. Therefore this Judgment is by the majority. This is an appeal against the Judgment of the High Court, in favour of the Respondent, and against the Appellant. The case for the Respondent is that it was contracted by the Appellant, to construct a fuel station in Chaisa, along the Great North Road, Lusaka, in consideration for the sum of US $265,000=00. The contract was in writing on 1st September 2005. It was initially agreed that the job would be done from 1st September 2005 to 20th February 2006. That Ranking Engineering was engaged by both parties to supervise the work and to issue to the Appellant, certificates of the work done and its value. That the Respondent did the work quoted. That Ranking Engineering issued 7 interim payment certificates to the Appellant. These were dated between 4 th June 2006 and 20th August 2006. That the initial works did not include the Tank Farm, electrical and the roof works. That these were later added to the work. As a result of the extra work, the completion date was extended to 15th April 2006. That it could not complete the work on that date for two reasons. One was that heavy rains continued beyond 15th March 2000. The other was that other sub contractors engaged by the Appellant, failed to complete their portion of work on time. Among the sub contractors was Protech Limited, Drake and Gorham and Electrical Techniques Limited. The Respondent completed the works on 14th July 2006. That in breach of the Agreement, the I -J3- Defendant paid US $26,434.00 out of the outstanding amount of US $121,851.02 , leaving a balance of US $95,417.02 unpaid. That as a result, it suffered loss and damage. So it claimed against the Appellant, the following reliefs:- 1. Damages for breach of contract, for constructing the Filling Station. 2. Special damages in the sum of K436,192,920.00. 3. Payment of the sum of US $27,847.51, being the sum outstanding for retention money on electrical and civil works 4. Payment of the sum of US $95,417.02, being the outstanding sum, for the construction work done. 5. Interest and costs. The Appellant admitted having entered into a contract for the construction of a fuel station, but put the consideration for the project at US $260,000=00. However, its case was that six (6) interim payment certificates were issued, by Ranking Engineering. These were paid for. It disputed the 7 t h interim payment certificate because it had senous errors and discrepancies. This certificate was for US $118 ,467. That after some discussions, the certificate was revised and agreed at US $79,302.00. It then paid 2/3 of the revised sum. The payment was made after this case was commenced. The Appellant conceded that the total value of completed works , as a certified by Ranking Engineering Limited, was US $395 ,615 and not US $260,000.00. L ' ' -J4- The Appellant denied having agreed to the sub contracting of Electrical Techniques Limited. It said that the Tank Farm was not additional work; as the same was awarded to the Respondent, before the commencement of the construction work. That it agreed to extend the completion date from 20th February 2006 to 15t h April 2006 . That despite the extension, the Respondent further failed to complete on time. That the construction work was completed on 14t h July 2006. That as a result of the delay, the Appellant suffered loss of profit in the sum of K900,000 ,000=00. So, it counter claimed for K900,000,000=00 against the Respondent. After evaluating the evidence, the learned trial Judge identified two issues as being in contention. The first one was whether construction of the Tank Farm and electrical works , were part of the original scope of work and therefore, included in the contract price or whether these were additional works and outside the original scope of work and therefore , not included in the contract price. On the evidence, she found as a fact that the works relating to the Tank Farm and electrical, were not part of the original scope of work. That their price was not included in the contract price. Accordingly , she held that the Respondent was entitled to be paid for the value of extra works, namely the Tank Farm and electricals. That non payment by the -JS- Appellant, constituted breach of contract . And as a result, the Respondent suffered loss and damage . The second issue was whether the Appellant was entitled to the counter claim, as a result of the delay in completing the project some three months later. She found as a fact that time for completion of the Filing Station may have been of the essence, initially. But the set date of completion ceased to apply because of subsequent developments. These were:- (a) The additional works in the form of construction of the Tank Farm. (b) The failure by other contractors, like Drake and Gorham and Protech Limited, to complete their works. (c) The extended heavy rainfall. (d) Interventions by Environmental Council of Zambia and Energy Regulations Board. The learned trial Judge observed that these developments made it impossible to complete the project as initially contemplated. That in these circumstances, it could not be said that the Respondent was to blame for the delay. That on the contrary, the Respondent completed the work within a reasonable time. She concluded and held that the Appellant's counter claim for loss of business , due to the late completion of the Project, cannot hold. She then ordered as follows:- 1. That the Plaintiff's claim as prayed is granted. 2. That the Defendant's counter claim is dismissed. 3. That the Plaintiff is awarded costs, to be agreed or taxed, in default. -J6- Dissatisfied with the Judgment, the Appellant has appealed to this Court, raising three grounds of appeal. On behalf of the Appellant, Mr. Mundashi and Ms Kasonde urge us to consider grounds one and two together, although the two appear as separate grounds. Indeed, we note they are inter related. These read as follows:- "1 . The learned trial Judge in the Court below erred in law and fact by failing to conduct an inquiry and or to conclusively determine all issues that were before her as pleaded. 2. The learned trial Judge in the Court below erred both in law and fact by apparently taking the position that the Respondent's case had been proved merely upon failure of the Appellant's counter claim and consequently holding that the Respondent's claim as prayed be granted without an inquiry and or determination of the whether the Appellant's case on its own merits (without the counter claim) had been proved as pleaded." On ground one, Counsel refer us to the amended statement of claim at pages 40-43 and the particulars of special damages thereon. They point out that the figure framed in US Dollars as $216,140,625.00, was in fact supposed to be in Zambian Kwacha, K216,140,625.00 and not Dollars. They argue that this demonstrates the absurdity of the Judgment in the Court below that simplistically held that: "the Plaintiff's claim as prayed, is granted, with costs". .. -J7- They also attack the additional claim on page 42 of the Record of Appeal, which is tabulated as follows:- "(a) Tank Farm Construct, first attempt K185,865,000.10 (b) Second and third Attempt K 56,494,000.00 (c) New Tank Farm Construction with new Drawing K259,464,688.00 K501,813,888.00 Total at K4,500 per Dollar U. S. $111,514.15 They argue that what is not clear is whether this is part of the special damages or is it a separate head for liquidated or general damages. They add that at page 43 of the record of appeal there is a summary of the total loss and expense which appears to be a confused combination of "special damages)) and ((construction of the Tank Farm )). They then refer to the final prayer on the amended statement of claim as per page 43. They point out that the claim, as framed, is obfuscatory. They wonder whether it is a claim for general damages to be assessed or is it for specific damages which are liquidated to be assessed? They say, for instance, if the claim was for liquidated damages, what is the amount in the Statement of claim and how is it liquidated and specified? And that on the other hand ifit is to be assumed that it is the amount US $216,140,625.25 . ' -JS- on page 42 of the record of appeal, relating to construction of the Tank Farm, there is no evidence on record to show that those are the amounts that have been proved. That the amounts that have been specified in the statement of claim are crafted in a language that suggests that the claim is for liquidated damages. On the nature of liquidated damages and how they should be proved, they refer us to Anson's Law of Contract (28th Edition 2002), page 625 and JZ car hire Limited v Malvin Chola & Scirrocca. They submit that the amounts being referred to for the construction of the Tank Farm were not liquidated or specific damages. That they could only be arrived at on the basis that they were general damages. That there is no evidence to specifically prove these figures. Neither is there an order in the Court's Judgment referring the matter for assessment of damages. They argue that the Respondent's claim on the amounts representing damages for construction of the Tank Farm should be contrasted with the evidence which was canvassed by the Appellant that the revised final amount certified by the project consultant was US $79,302. This is as per pages 124, 206, 209 and 210 of the record of appeal. Counsel point out that the Appellant pleaded and adduced evidence showing that as at the date the Respondent commenced this action, the Appellant had already paid a total of US $52,868.00, against the revised certified value of US $79,302. And that the only outstanding amount due to the . ,• -J9- Respondent was US$26,434. In this regard, Counsel refer us to paragraph 9 of the amended defence and the evidence at pages 258 and submissions at page 269 of the record of appeal. Counsel argue that it was imperative that the learned trial Judge should have examined this aspect of the Appellant's defence, in the context of the Respondent's claim. That instead the trial Court simply took the position that as the counter claim had no basis, the Plaintiffs claim ought to succeed, without examining whether the amounts as specifically claimed in the writ and statement of claim had been proved. In support of the submission, Counsel cite Zulu v Avondale Housing Project Limited (1). In that case, this Court decided on the issue, as follows:- "The trial Court has a duty to adjudicate upon every aspect of the suit between the parties, so that every matter in controversy is determined in finality." Counsel add that this aspect of the defence was not addressed. And that the trial Court did not address itself to the issue whether the special damages had been proved. In this regard Counsel refer us to Mhango v Ngulube (and others)(2). In that case this Court held as follows: "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 of that loss with a fair amount of certainity." . ' -JJO- On ground two Counsel start by referring to the two issues as identified by the learned trial Judge, and as already set out above. They submit that the intertwined issues were central to the Appellant's counter claim that the Respondent had delayed the project and the Respondent's defence thereto that it had delayed the project due to being instructed to do work, which was not part of the original scope of works. Counsel submit that this is an issue that had to be tried separately, but did not obviate the need for the Court to conduct an inquiry into whether the Plaintiffs claim, as pleaded, had been proved. That the position taken by the learned trial Judge is totally misleading. That the so called issues identified by the learned trial Judge were in fact only one issue in relation to the counter claim by the Appellant. That the Respondent's claim itself, as set out in the amended statement of claim, constituted several issues that fell to be determined by the Court. They argue that the trial Judge ought to have identified issues pertaining to the claim by the Respondent. That, for instance, there was a claim for special damages. That the statement of claim put it at US $216,14 and $265. They ask if the trial Judge identified this issue and examine the evidence that was led to support that claim. They say that she did not. That there was no evidence to prove this claim. That, however, in the short order of the Court, the Judgment reads: "The Plaintiff's claim, as prayed, is granted, with interest and costs. " They argue that this order is bizarre and offends against all the principles that ought to be applied when determining a matter. They reiterate that the ·' I -Jll - learned trial Judge was duty bound to determine all issues surrounding the matter, as per the case of Wilson Masauso Zulu (1) cited above. In response on ground one, on behalf of the Respondent, Mr. Makai points out that the Respondent's claim is as set out in the amended writ of summons and amended statement of claim, at pages 38-43 of the record of appeal. He submits that it is clear that the figure of US $216,140,625.00, on page 42 of the record of appeal, is a typographical error. That the figure was calculated to be in Kwacha. He submits that the lower Court took cognizance of the typographical error. That K216, 140,625, is equivalent to US $48,031.25, at the agreed exchange rate of K4,500 to US $1.00. It is Counsel's position that it is misleading for the Appellant to present its argument in a manner that would merely confuse the Court. He submits that the Respondent in its amended statement of claim, under special damages, itemised the works that were done for the Appellant, in particular detail and the expenses that were part of the agreement between the parties. That there is the aspect of preliminary and general expenses that amounted to K216,140,625=00. That there is also the aspect of the Tank Farm that amounted to K220,052,295.00 (or US$48,900.51). That the Respondent went further to simplify the understanding of the claim for special damages, by adding the total amounts claim, at page 43, as follows:- .,• ) ' . • • -Jl2- (i) (ii) Preliminary and General K216,140,625.00 Construction of Tank Farm (US $111,514.51- $62,613.64) $48,500.5 Total amount claiming (exclusive of VAT K220,052,295.00 K436.192.920.00 He submits that the Respondent's claim was very clear. That it was a claim for breach of contract dated 1st September 2005. It was also a claim for special damages, amounting to K436, 192,920.00. It was also a claim for payment of a further sum of US $27,847.51, as a sum outstanding for retention of money and US $95,417.02, for balance of construction works done. Mr. Makai further submits that the lower Court's Judgment is littered with reference to evidence adduced by the Respondent, in the form of Engineer's Certificates and site meeting minutes that the Court relied on to determine the matter. As an example he says that at page J.9 (lines 4-13), the Court pointed out pages 16 and 17 of the Defendant's bundle of documents, that the Defendant's witness admitted that the original contract price of U. S. $260,000 did not include construction of the Tank Farm. That at page J-4, the lower Court alluded to the fact that the Defendant gave clear and unequivocal admissions that it owed the Plaintiff US$27,229.00. That was admitted in paragraph 9 of the re- -Jl3- amended defence, where the defence admitted owing only US$26,434.00 and US$97,568.00. We must point out at once here that the last argument is not accurate. Paragraph 9 of the defence does not admit owing of US$97,568.00. It admits owing of US$26,434.00 and US$795.68, as additional work for the submersible pump. These two figures add up to US $26,229.00. Counsel adds that at page 109 of the record of appeal is an interim Certificate No. 1 for electrical works, wherein a retention of US$8,006.75, for electrical works was recorded. That also the approved sum of US$32,601 was stated in the same electrical works Certificate. He points out that the Appellant's witness stated that he did not know if the Certificate was paid for by the Appellant. That at page 121 of the record of appeal, a revised retention amount of US$19.780.76 was recorded on the interim certificate No. 7. He argues that in the face of such evidence adduced by the Respondent, the lower Court was on firm ground in granting US $27,847.51, as outstanding for retention money on electrical and civil works, in line with J. Z. Car Hire Limited v Malvin Chola and Scirocco (202) Z. R. 112. In response on behalf of the Respondent, on ground two, Mr. Makai submits that the amended statement of claim, re amended defence and counter claim all stem from the same -J14- facts. That they were all supported by or the same evidence or lack of it. That in determining the issue of the amended statement of claim, re-amended defence and counter claim, the lower Court relied on the testimonies of the witnesses for the Appellant and Respondent. He points out that at page J12-13 (pages 19 and 20 of the record of appeal) the lower Court stated the evidence it relied on and the reasons for the failure of the counter claim. Counsel also refers to pages 342 and 348 for the evidence of witnesses. We have examined the Judgment in the Court below and have considered the submissions on grounds one and two. On pleadings and evidence, we are of the view that liability was established, in relation to certain issues and some of the specific figures claimed. In fact after construction was completed, the Appellant admitted liability. It undertook to pay the revised final certificate as issued by Ranking Engineering Consultants. And in the process, it pleaded for more time to pay, as it was facing financial problems. In this regard, at page 124 of the record of appeal, is the Appellant's letter which reads as follows:- "SUBAN PETROLEUM (Z) LIMITED 12th September 2006 Dockland Construction Limited PO Box36279 LUSAKA Attn: Mr. Nair - General Manager •• -Jl5- Dear Sir, RE: PAYMENT WITH RESPECT TO FINAL CERTIFICATE FOR CHAISA SERVICE STATION We refer to the revised final payment Certificate as issued by M/S Rankin Engineering Consultants dated 28th August 2006. Kindly note that at present we are going through a financial crisis but we are committed to pay your dues. Please find enclosed the copy of the deposit slip at your bank M/S Stanbic Bank (Z) Limited for an amount of 11a'd the value certified. We shall be clearing your dues at your earliest. Hope you will be able to understand our situation. Thank you Yours faithfully For/ Suban Petroleum (Z) Limited SIGNED Abidair Aden Financial Controller'' Although liability was established, there are certain claims that were not proved. We will start with those established. First among the issues established is extra works. Evidence on record shows that the Tank Farm and electrical were not part of the original scope of work. This evidence is found in the documents and the evidence of P. W.1, Francis Sujan. Documentary evidence is found at page 92. At that page is the Respondent's quotation for the construction of the Filling Station. At the bottom of the quotation is a note that reads as follows:- ' . -J16- "Kindly note that the following are not included in our quote:- 1. Works for Zesco and the connection fee. 2. Works for Lusaka Water and Sewerage Company. 3. Works for structural steel canopy and painting the same. 4. Entire Works for fuel tanks and pump installation. 5. Landscaping." The learned trial Judge analysed and considered this evidence. She then observed and concluded as follows: "More over, page 17 of the Defendant's bundle of documents, the excavation for the Tank Farm, back filling and the civil works required, and the excavation and back filling for all pipe works as required for the Tank and pump are listed as additional Works ....... " The evidence on record supports and confirms the contention by the Plaintiff that the work relating to the construction of the Tank Farm and electrical works were not part of the original scope of work. In this regard, it is note worthy that at page 38 of the Defendant's bundle of documents, the Defendant wrote to the Plaintiff for the complete details of the cost of the Tank Farm, in a letter dated 10th August 2006. If the cost of the Tank Farm had been agreed to in the initial price, why would the Defendant be requesting for its cost at a later stage? This confirms the fact that the construction of the Tank Farm was not part of the original scope of work and the price thereof was not included in the contract price." •· -J17- We hold that the learned trial Judge was on firm ground 1n holding that the Tank Farm and Electrical Works were additional works and that liability for them was proved. Her findings and holding were supported by the evidence on record. According to P. W.1, U. S.$72,600.71 was certified as the value of work due and payable to the Respondents from the Appellant. That was work for electrical. It was certified as due, by North Atlantic Engineers, who were appointed by the Appellant, as its electrical consultant. That out of this US $72, 600.76, the Appellant paid only US $40,000.00, thereby leaving the balance of US $32,600.76. This is as per pages 245 and 343 of the record of appeal. At the top of page 369, D. W.1, confirms that the Appellant agreed to pay US$40,000 for the electrical. As for the Tank Farm, Revised Certificate No. 7 of 8 th July 2006, puts its value at US $79,302.00. This is as per page 121 of the record of appeal. From the evidence on record, we are of the view that liquidated claims for the value of electrical and the Tank Farm were proved. Liability in respect of these two items was not in dispute. The learned trial Judge accepted the version of the Respondent. On the evidence on record, we agree with Mr. Makai that retention, in the total sum of US $27,847.51 was proved. Retention money is shown in the certificates issued by Rankin Engineering Consultants. These are the 1st Certificate at page .. I , , -J18- 102 and the revised 7 t h Certificate at page 121 of the record of appeal. Also proved is US $26 ,434.00, being the balance towards the value of the Tank Farm. This 1s admitted in paragraph 9 of the re-amended Defence and the evidence of D. W.1 , at page 258. This witness testified that when the Respondent commenced this action, the Appellant had already paid a total of US $52,868.00, towards the revised Certified value of US $79 ,302.00. This is the revised Certificate No. 7 at page 121 of the record of appeal. That left a balance of US $26,434.00. At trial, the Respondent did not dispute payment of US $52 ,868.00. Under cross examination, D. W.1 , said as follows: "The revised final payment is the one on page 40. The total amount was US $395,615.25. After we paid the figure of US $79,302.00. Everything was paid except the US $79,615.25." This is as per page 370 of the record of appeal. On the whole, we find this evidence vague. The figures do not tally. But what is clear is that the Appellant admitted owing US$79,615.25, as at the date of trial. Accordingly, we hold that this admitted figure was proved. We agree with the learned trial Judge that refusal by the Appellant to pay the proved sum was wrongful and breach of contract. \ .) •• -J19- We now move on to figures not proved, Mr. Mundashi and Miss Kasonde start their submissions by attacking the Respondent's particulars of special damages and the claims. At pages 42 and 43 of the record of appeal, these are pleaded as follows:- "PARTICULARS OF SPECIAL DAMAGES i) The Preliminary and General initially Charged 15% of the Contract sum i.e. (U. S.$265,000.00) for 4 months = US$265,000.00 For 4 months = US$ 39,750.00 One month preliminary and general= US$ 9,937.50 Pro-rata extension of time for 25 days 4 months 25 da~s = = 9,937.50x4 91937.50x25 = = US$39, 750.00 US$ 81281.25 TOTAL: US$40I031.25 = US$216I140I625.00 CONSTRUCTION OF TANK FARM i) ii) Tank Farm construct first attempt K185,865,000.00 Second and Third Attempt K 56,494,000.00 iii) New Tank Farm construction with New drawing Total at K4I500 per Dollar Tank Farm Construction (Certified) First, Second, Third attempt Construction with New Design Total Certified US$48I900.51 not certified K259,464,688.00 K501,813,888.00 (US$111 I514.15 ------------- ------------- US$17I237.45 US$45I376.19 US$62I613.64 •· -J20- SUMMARY TOTAL LOSS AND EXPENSES i) ii) Preliminary and General K216, 140,625.00 Construction of Tank Farm (US$111,514.15-US$62,613.64) US$48,900.50 K220,052,295.00 Total amount claiming (Exclusive of VAT) K436, 192.920.00 -------------- -------------- AND the Plaintiff claims:- i) Damages for breach of the Contract made between the Plaintiff and the Defendant dated on or about 1st September, 2005 for the ii) iii) Construction of the Filling Station in Chaisa, Lusaka. Special Damages as pleaded above. Payment ofthe sum of US$27,847.51 by the Defendant to the Plaintiff, being the sum outstanding for Retention money on Electrical and Civil Works. iv) The payment of the sum of US$95,417.02 by the Defendant to the Plaintiff, being the sum outstanding for the construction work done by the Plaintiff. v) vi) Any other relief the Court may deem fit. Interest thereon. vii) Costs." We agree with Mr. Mundashi and Miss Kasonde that the way particulars of special damages are pleaded at pages 42 and 43 of the record of appeal is not appropriate, vague and not clear. In the first place , we note that some figures on those pages are pleaded in American Dollars. Others are pleaded in Zambian Kwacha. The quotation for the construction project and the Certificates for payment, were all given in American Dollars. The Respondent would have done well to use American Dollars even in pleadings. As at 2006, when this -J21- case was commenced, it was not illegal to use American Dollars in business transactions. We wonder why in pleadings, the Plaintiff used both American Dollars and Zambian Kwacha. The result of this combination is confusion and inconvenience, even in writing Judgment. We believe that it is the use of two currencies that caused the mistake and confusion relating to the framing of 216,140,625 on page 42 in American Dollars, when that figure was meant to be in Zambian Kwacha. Under particulars of special damages, on top of page 42 (as quoted above) are six figures in American Dollars. These are tabulated under a sub-heading termed: (((i) The Preliminary and General Initially charged 15% of the Contract sum". When added, these six figures come to K216,140,025.00 (as corrected; but mistakenly given as US$216, 140,025.00 thereon). We do not understand how these figures anse. Mr. Makayi submits, on the issue, that the Respondent went further to simplify the understanding of the claim for special damages by adding the total amounts claimed at page 43, to come up with a total claimed sum. We don't agree. We have carefully examined the evidence of P. W. 1, both in chief and under cross examination. He was the only witness for the Respondent at trial. We have not been able to find anything in his evidence that proves the figure of K216, 140,025.00, claimed as ((Preliminary and General," at page 42. Mr. Makai's submission tries to make the figures appear simple. But he -J22- does not refer us to the documentary evidence or the evidence of P. W.1 , which establishes the figures in question. Pleadings alone, when put together with Counsel's submissions, do not constitute evidence, to establish a claimed figure. On the evidence, we are of the view that the aggregate claimed figure of K216,140 ,025 .00 was not proved. Then there is the 4 t h claim for US$95,417.02, being the sum outstanding for the construction work done by the Plaintiff. We have examined the evidence of P. W.1; both in chief and under cross examination. There is nothing showing how this figure arises. At page 349, there is mention of the Certificate of 3 r d August 2006, for US$118,467.00, having been issued by Rankin Engineering Consultants . P . W.1 said that the Respondent never received that money, as at the date of hearing. On the evidence, we cannot tell whether US$95 ,417.02 is part of US$118 ,467 .00 . On the other hand, this US$118,467.00 does not appear to have been specifically pleaded and claimed for. We are unable to see it in the statement of claim. In our view, US$95 ,417 .02 was not proved. In light of the foregoing, we agree with Mr. Mundashi and Miss Kasonde that it was necessary and important for the learned trial Judge , to have examined each figure , pleaded as special damages or liquidated claim, against the evidence on record. And then determine whether a given figure was established. On the facts of this matter, to generally say that: .. -J23- "the Plaintiff's claim, as prayed is granted with interest thereon", was not appropriate. On the evidence, some figures were established. Others were not. Here the trial Court was faced with a situation where liability was established, but some of the liquidated figures claimed, were not proved. In such a situation the trial Court should have ordered assessment of damages by the Deputy Registrar, in respect of figures that were not proved. We also note that the 1st claim on the amended statement of claim, is for damages for breach of contract by the Appellant. Our understanding is that these are general damages. The actual amount due, if any, can only be ascertained by assessment. Therefore, there ought to have been an order for assessment of damages. In the circumstances, we hold that the learned trial Judge erred in law by not ordering assessment of damages. We will come back to this issue later. Before we move to ground three, there are two issues we wish to address. These are relief and order in a Judgment. These two featured prominently in this appeal. We dealt with these issues in detail, in ZAMTEL LIMITED V MULWANDA (& Another) - Selected Judgment No. 7 of 2012. We repeat what we said at pages J12 to J16 of that Judgment. That \ . ... • I -J24- Judgment is not yet reported. So, we will attach it to this Judgment. For the reasons given above, grounds one and two partly fail as to liability and the specific claims proved. They partly succeed as to the figures not proved. We now move on to ground three. This ground deals with the counter claim. On this ground, Mr. Mundashi and Miss Kasonde submit that the learned trial Judge did not satisfactorily deal with the issue of the Appellant's counter claim. They submit that the defence to the Appellant's counter claim was twofold: first, was that the initially agreed completion date was 20th February 2006. But due to the fact that the original scope of work did not include the Tank Farm, additional instructions were given to the Respondent after 20th February 2006. Counsel submit that evidence on record does not show specific instructions given specifically for construction of the Tank Farm, after 20th February 2006. That the evidence on record suggests that the extension after 20th February 2006, was not to accommodate the additional works being the Tank Farm. That the extension was on account of the rains. In this regard, Counsel refer to the progress report No. 1 at page 184 of the record of appeal. It is dated 22nd September 2005, which is three weeks from the date of the Contract. They also refer to a letter of 9 th February 2006, at page 191. They point out that the letter clearly refers to extension on account of the heavy -J25- rains. Counsel argue that the fact that in 2005, several weeks into the Contract, the Respondent was talking of work on the Tank Farm, is not consistent with the findings that the Tank Farm, which partly led to the delay, was additional works, given after 20th February 2006. On the basis of the foregoing, they urge us to reverse the findings of fact on the authority of A. G. v Achiume [1983] Z. R.1. That second, is that the other sub contractors delayed their portion of work. They argue that if the Respondent itself was still doing construction, that should have completed months earlier, it would only be logical that the schedule of these consultants would have to fit into the extended period of the main Contractor. They argue that the learned trial Judge clearly misapprehended the facts when she concluded that the delay was justifiable. On completion period of contracts, Counsel refer us to the following:-: (a) Chitty on Contracts, 23 rd Edition, Vol 1, paragraph 1140. (b) Halsburg's Laws of England, Volume 4, paragraph 1179 and (c) De Groot vAttala [1973] Z. R. 77. Counsel further argue that the Respondent did confirm that the practical date for completion of all the works including the Tank Farm would be 15 th April 2006. Therefore, even if the Tank Farm is termed as additional work, the Respondent is precluded from asserting that the delay in completion was a result of the additional work it was contracted to do. That the -J26- conclusion by the trial Court that the Respondent's failure to complete the works by 15th April 2006 was as a result of other intervening factors, such as prolonged rains, is not supported by any evidence that there were rains up to July 2006. In response on behalf of the Respondent, Mr. Makayi submits that the learned trial Judge did satisfactorily deal with the Appellant's counter-claim. He refers to the notes as to what was not intended, which was entire works on fuel tanks and pump installation. He says that as per pages 251 and 252 of the record of appeal, the learned trial Judge went to great lengths to understand the use of the Tank Farm and how it was constructed. He points out that after it was agreed between the parties that the completion date be moved to 15t h April 2006, a site meeting was held on 13t h April 2006. The minutes of the meeting are at pages 97 to 100 of the record of appeal. That at that meeting, it was noted that the Respondent had observed the deadline for the stop shop. He argues that the trial Court put its mind to the counter claim and observed that the extension of time was due to factors beyond the Respondent's control; including extended heavy rains , as agreed upon by the Appellant in the letter of 9 t h February 2006. That sub contactors contracted, directly by the Appellant, such as Protech Limited, Drake and Gorham, who were still working on site by 5 t h July 2006. Zesco power connection, which was the responsibility of the Appellant, was only connected on 18t h June 2006. He points out that the Court also observed at page J12, -J27- that once additional works were introduced 1n the project, in the form of the construction of the Tank Farm, interventions by the Environmental Council of Zambia (E. C. Z.) and the delay by the sub-contractors, the initial date of completion ceased to apply. In support of his submissions he refers us to page 163 of W. A. Gills in Enden and Gills Building Contracts, 7 th Edition. It is Counsel's submission that the Appellant failed to prove that the delay in completion was as a result of the Respondent alone We have examined the lower Court's Judgment on the counter claim and have considered submissions by Counsel. As to whether the Tank Farm and electrical were additional works, we repeat what we have said on grounds one and two, above. Evidence on record shows that the main cause of the delay of completion of the Project was continued heavy rains after 15th March 2006. The rains made it impossible to complete the Project on the revised date of 15th April 2006. This issue is explained, in detail, by a letter dated 9 th February 2006, from the Respondent to the Appellant. The letter is at pages 191-192 of the record of appeal. The Appellant accepted the explanation over the continued rains. It agreed to an extension of the completion-date, as a result of the rains. -J28- Secondly, there is evidence that the Farm Tank had to be constructed about three times , because of it was initially wrongly designed by a party engaged by the Appellant. And as a result, by a letter dated 23 rd March 2006, Energy Regulations Board, intervened and directed that it be re-designed. That was done. This is as per pages 95-96, 342-345 and 367 of the record of appeal. This contributed to the delay. Thirdly, there is evidence that other sub contractors engaged by the Appellant, delayed in completing their part of work in the Project. These included Drake and Gorham. This is as per page 348 of the record of appeal. Fourthly, there is evidence that the final Certificate of Completion, issued by the Respondent's Consultant Engineers, does not reflect delay in completion of the Project. It does not give a penalty for delay, as per standard practice. This is as per pages 349 and 122 of the record of appeal. The learned trial Judge considered and accepted this evidence. And on that evidence, she found that the delay was justifiable. Accordingly, she held that the Appellant's counter claim was not established and dismissed it. On the evidence on record, we do not accept the submission by Counsel for the Appellant that the learned trial Judge misapprehended the facts of the case , to warrant reversal of facts on the authority of A. G. v Achiume. We are of the view that she satisfactorily considered the counter-claim. -J29- She was on firm ground in rejecting it. We uphold her decision on liability on the counter claim. From the evidence on record, we are of the view that the Appellant's counter claim was not genuine. It was an afterthought, aimed at avoiding paying what it owed the Respondent. We say so because as late as 12th September 2006, the Appellant stated that it was committed to paying what it owed the Respondent, on the revised final Certificate, issued by Rankin Engineering Consultants. It asked for more time to pay; because of financial problems. This is as per letter quoted above. As of then, the Appellant never talked of a counter claim, arising from the delay. The counter claim was raised only when the Appellant was sued for failing to settle the balance owing. It is also important to note that initially, the counter claim was put at K150,000,000. Then it was increased to K900,000,000. For the fore-going reasons, ground three fails for lack of merit. We now come back to the partial success of grounds one and two. We hereby order that the Deputy Registrar assess general damages and the figures not proved. Accordingly, this matter is hereby referred to the Deputy Registrar. Since the appeal has partly failed and partly succeeded on grounds one -J30- and two, we order that each party bears own costs of this appeal. • L.a-~IBESAKUNDA ACTING CHIEF JUSTICE