Swift Cargo Services Ltd v Lake Petroleum Ltd (Appeal 32 of 2016) [2016] ZMSC 283 (26 May 2016)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 32/2016 SCZ/8/349/2015 (Civil Jurisdiction) BETWEEN: SWIFT CARGO SERVICES LIMITED APPELLANT AND LAKE PETROLEUM LIMITED RESPONDENT Coram: Malila, Kajimanga and Mutuna, JJS on 5th April, 2016 and 26th May, 2016 For the Appellants: Mr. Mark M. Haimbe - Messrs Sinkamba Legal Practitioners For the Respondent: Mr. K. Msoni - Messrs J. B. Sakala & Company J U D G M E NT Malila, JS, delivered the judgment of the court. Cases referred to: 1. Nkata & Others v. The Attorney-General (1966) ZR 124 2. Mobile Motors v. Attorney-General (SCZ judgment No. 13 of2009) 3. Wilson Masauso Zulu v. Avondale Housing Project (1982) ZR 172 4. Lloyd v. Grace Smith & Companyfl 912) UK HL (1912) AC 716 5. Sestili v. Triton Underwriting Insurance Agency Pty Ltd (2007 SASC 6. Banda v. Mulenga (SCZ judgment No. 16 of2003) 7. Galaunia Farms Limited v. National Milling Company & Another (2004) ZR 1 8. Nkata and Others v. Attorney General (1966) ZR 147 (Reprint) 9. Zambia Revenue Authority v. Dorothy Mwanza and Others (2010) ZR vol. 2, 181 J2 10. Simwanza Namposhya v. Zambia State Insurance Corporation Limited (2010) ZR vol. 2, 339 11. Patrick Makumbi and 25 Others v. Greytown Breweries Limited and 3 Others, Appeal No. 032/2012 12. Attorney General v. Kakoma (1975) ZR 216 Other works referred to: 1. A Dictionary of Accounting (Owen 6.2 Law J. 2005, Oxford, Oxford University Press) 2. J. Munkman, Employer’s Liability 5th ed. at page 465 This appeal challenges a judgment of the High Court upholding the respondent’s claim against the appellant for the sum of KI,362,899.91, being the balance on the cost of fuel or petroleum products supplied to the appellant by the respondent. The High Court also awarded interest on the said sum, and costs to the respondent. It is necessary to paint the factual backdrop to the points of law debated before us in this appeal. The case for the respondent (as plaintiff in the lower court), as can be deciphered from the pleadings and the evidence, was simply that the respondent, which is in the business of importing and trading in petroleum products and owns filling stations in various places in Zambia, entered into an agreement sometime in 2012 with the appellant. In terms of that agreement, the appellant was availed a credit J3 facility under which the appellant’s vehicles were allowed to draw automotive gas (diesel) from the respondent’s filling stations upon raising a fuel order and without having to pay for it up front. Furthermore, the respondent installed a tank and pump facility at the appellant’s premises in Kitwe where the appellant drew fuel against fuel orders. The respondent was to be paid upon presentation of invoices for fuel drawn. The respondent alleged that the appellant had defaulted in paying for fuel drawn and in consequence, the sum of KI,362,899.91 had accrued and was owing as at 24th August, 2014. Accordingly, the respondent took out a writ of summons in the High Court, claiming the said money. In resisting the claim the appellant, not only filed a defence against the respondent’s averments, but also put up a counter-claim for an order for reconciliation of the accounts and other ancillary relief. The appellant denied the respondent’s claim in the lower court principally on grounds that between June, 2014 and August, 2014 it had been overcharged in a sum in excess of K900,000.00 by the respondent, and that what was required to be done is a reconciliation of the accounts. The respondent’s J4 response to the counter-claim was that a reconciliation was carried out but the appellant refused to accept the reconciled figures. After hearing the parties’ witnesses and evaluating the evidence before him, the learned trial judge was of the considered view that the respondent’s case against the appellant had been proved on a balance of probabilities and that the counter-claim put forth by the appellant was destitute of merit. He accordingly entered judgment against the appellant in the terms that we set out at the beginning of this judgment. Piqued by that judgment, the appellant has now appealed on eight grounds framed as follows: “GROUND ONE The court below erred in fact and law when it held that reconciliations of diesel supplied by the plaintiff were carried out despite evidence on record to the effect that no specific reconciliation was carried out as contended by the plaintiffs Finance Controller. GROUND TWO The court below erred in fact and law when it held that the defendant should have paid for the diesel allegedly supplied by the plaintiff despite the irregularities brought out at trial. J5 GROUND THREE The court below erred in fact and law when it held that the plaintiff was liable for its employees fraudulent activities despite evidence on record that the plaintiff was a beneficiary of the said criminal activities as it was paid the money there-from. GROUND FOUR The court below erred in fact and law when it held that a specific reconciliation was carried out despite evidence to the contrary by the Finance Controller and in absence of documentary evidence to that effect. GROUND FIVE The court below erred in fact and law when it held that the order for reconciliation was an attempt to buy time despite evidence adduced which demonstrated anomalies on the plaintiff’s claim thereby requiring reconciliation to be carried out. GROUND SIX The court below erred in fact when it held that the assertion that the beneficiary of the fraudulent activities was not the plaintiff on the grounds that the said was unsupported by other evidence despite evidence by the plaintiff’s own witnesses that all payments were made by cheques payable to the plaintiff. GROUND SEVEN The court below erred in fact when it ignored the fact that the plaintiff being the recipient of fraudulently obtained funds ought to have been held culpable of the said fraudulent activities and therefore liable to reconciliation to determine the state of affairs regarding the defendant’s account. GROUND EIGHT Any further grounds that the appellant may subsequently file.” J6 At the hearing of the appeal, Mr. Haimbe, learned counsel for the appellant, intimated that he was placing reliance on the written heads of argument filed in court. In regard to ground one, he contended that, contrary to the evidence on record, the learned trial judge made a finding that reconciliations of diesel supplied by the plaintiff (now respondent) were carried out as contended by the plaintiff (respondent)’s Finance Controller. More pertinently, Mr. Haimbe pointed to the statement by the learned judge at page 25 of the record of appeal, lines 11-15, where the judge stated that: “l accept PWl’s evidence that reconciliations of diesel supplied by the plaintiff to the defendant were done monthly and that a specific reconciliation was carried out by Mr. Gift Zulu and Oscar Kangwa in or about August, 2014 which confirmed that the defendant owed the plaintiff the sum of KI,362,899.91 but that this figure was not accepted by the defendant.” The learned counsel referred us to the evidence on the record of appeal, of PW1, Vaibhave Nagori, who confirmed that a specific reconciliation was carried out. According to the learned counsel, the evidence of PW1 appears to contradict the appellant’s version of events when in paragraph 5 of its defence J7 and counter-claim the appellant implied that it did not agree to a reconciliation being conducted. It was contended further that if there had never been a meeting held, there could never have been a reconciliation. This is further compounded by the testimony of PW1 that no reconciliation report was reduced to writing. The learned counsel also pointed to the evidence of PW2, Kamtesh Dalwadi, who testified that no specific reconciliation was ever carried out. Mr. Haimbe complained that the learned trial judge made a finding of fact based on PWl’s evidence in complete disregard of PW2’s evidence and did not give any reason for doing so. We were referred to the case of Nkata & Others v. The Attorney-General(1) where instances on which a trial judge could be reversed on his or her findings of fact, were articulated. It was counsel’s submission that the present case was a proper one in which the trial judge ought to be reversed on facts. To buttress the argument further, the learned counsel also cited the case of Mobile Motors v. Attorney-General!2). We were urged to uphold ground one of the appeal. J8 Mr. Haimbe, then turned to grounds two and three. These were argued compositely. Here, the appellant sought to challenge the holding by the trial court that the appellant should have paid for the diesel allegedly supplied by the respondent despite the irregularities that were identified, and that the appellant was liable for the fraudulent activities of its employees. The learned counsel contended that while the general rule is that an employer is vicariously liable to third parties for the dishonesty or fraudulent conduct of its employees which causes injury or loss to those third parties, provided that dishonesty or fraud occurs within the course of the employee’s employment, that general rule has exceptions. In Mr. Haimbe’s view, the situation before the court fell within the exception to the general rule. He did not clearly state what the exceptions were and how the circumstances here fell into such exception or exceptions. It would appear though that the learned counsel believes that vicarious liability will only attach to an employer where the party complaining of a wrongful act of the employee is not a beneficiary of such wrongful act. J9 Mr. Haimbe, further argued that while in this case fraud, embezzlement or dishonesty is not disputed, and the court placed emphasis on this aspect, the learned judge erred by failing to place equal weight on the issue as to who the beneficiary of such fraud, embezzlement and dishonesty was. In the learned counsel’s submission, the respondent was a beneficiary. In failing to recognize this reality, the trial court, according to Mr. Haimbe, fell into error. He cited the case of Wilson Masauso Zulu v. Avondale Housing Project!3) in which the court stressed the need for trial courts to adjudicate all matters in controversy. Under ground four, which is not dissimilar to ground one, the appellant argued that it was a misdirection on the part of the trial court to have held that a specific reconciliation was carried out despite evidence on record to the contrary. Not surprisingly, the learned counsel merely repeated the same arguments given in support of ground one. We were urged to uphold this ground of appeal. Ground five of the appeal took issue with the lower court’s holding that the order for reconciliation was an attempt to buy time despite the evidence adduced which demonstrated anomalies J10 in the respondent’s claim that could only be cleared through a reconciliation. The learned counsel contended that the appellant had, before the trial court, provided ample evidence pointing to the need for reconciliation. He referred us to the evidence of PW1 in the record of appeal and quoted the authors of A Dictionary of Accounting1 for the definition of “reconciliation” in support of his submission. Counsel prayed that ground five of the appeal be upheld. Ground six assails the trial court’s holding that the beneficiary of the fraudulent activities was not the respondent, a finding which, according to Mr. Haimbe, was contrary to the evidence before the court. He specifically singled out for criticism, the following statement from the judgment at page 30 line 1-8 of the record of appeal: “The Defendant’s only witness told this court that it stopped paying the Plaintiff when it discovered that the fraudulent activities had occurred and that the beneficiaries of these was the Plaintiff and the Defendant’s employees, an assertion unsupported by other evidence. I am fortified by the authorities afore mentioned that the Defendant should be held vicariously Ill liable for the fraudulent activities of its Chief Account and if it so wishes it can commence an independent claim against him in order for him to pay back what he stole from his employer.” Mr. Haimbe then went to considerable lengths to show us that this statement by the learned trial judge was erroneous as it flies in the face of the evidence on record from various witnesses’ testimonies, details of which he alluded to. The short of Mr. Haimbe’s argument was that there is overwhelming evidence on record which shows that the recipient of the funds, was the respondent. The signatories to the account to which the proceeds of fraud were channeled were employees of the respondent. The learned counsel ended his submission on this ground by invoking the spirit of equity. He reminded us of the equitable doctrine that he who comes to equity must come with clean hands and that on the evidence before the court, the respondent’s hands were soiled. The learned counsel implored us to uphold this ground of appeal. Under ground seven, the appellant’s contention was that the trial judge erred when he ignored the fact that the respondent, being a recipient of fraudulently obtained funds, should have been liable to submit to a reconciliation to determine the state of affairs regarding the appellant’s fuel account with the respondent. J12 The short point made by Mr. Haimbe under this ground was that the respondent should have been held culpable as an accessory for the fraudulent conduct of its employees. Mr. Haimbe referred to the cases of Lloyd v. Grace Smith & Company!4) and Sestili v. Triton Underwriting Agency Pty Ltd<5> to support his argument. He fervently prayed that we uphold this ground of appeal. In the final ground of appeal, which was structured in generic and anticipatory form in the memorandum of appeal, the appellant impugned the finding by the trial judge that the records of the respondent showed that it supplied diesel worth KI,319,089.50 and that the appellant failed to challenge them or produce documents to show the amounts excessively charged. As with other grounds, the point taken by Mr. Haimbe under this ground was that the appellant had in fact adduced sufficient evidence before the trial court to firstly, challenge the respondent’s claim of the amount allegedly owing, and secondly to show the amounts excessively charged. On the authority of the case of Banda v. Mulenga<6i, we were urged to overturn the holding of the lower court in this regard. J13 It was Mr. Haimbe’s chief prayer that the whole appeal be upheld as the evidence on record clearly conflicts with the holding of the learned trial judge. In response to the arguments made on behalf of the appellant, Mr. Msoni, learned counsel for the respondent, also relied on the written heads of argument filed in court at the hearing of the appeal following our granting him leave to do so. In responding to ground one, Mr. Msoni submitted that the finding of the trial court that a reconciliation of diesel supplied by the respondent was carried out, was in fact supported by evidence on record. We were referred to the testimony of PW1, who, according to Mr. Msoni, was emphatic regarding the issue of reconciliation which he said was done every month. PW1 mentioned the officers who did the reconciliation as Mr. Zulu and Oscar (page 186 of the record, lines 3 to 5). The witness also explained in re-examination that the respondent submitted weekly statements which showed (a) the date of supply, (b) fuel order number, (c) invoice number/delivery note number, (d) truck number and (e) the quantity of the fuel supplied. Furthermore, according to Mr. Msoni, the appellant’s own witness admitted in J14 cross-examination that what the respondent had produced before the lower court in its bundle of documents represented an accurate record of the fuel drawn by the appellant. The respondent’s witness also explained that the respondent would produce statements of accounts supported in each case by fuel orders and invoices which the appellant’s employee, Gift Zulu, would verify before making payment. The learned counsel for the respondent argued that the court below was on firm ground when it refused to grant an order for reconciliation because none of the documents produced before it by the respondent were challenged by the appellant. To buttress the submission that he who alleges must prove, Mr. Msoni cited the case of Galaunia Farms Limited v. National Milling Company & Another(7i. He submitted that the appellant failed to show the court below the basis upon which an order for reconciliation should have been made. In response to the appellant’s arguments under grounds two and three, Mr. Msoni began by pointing out that the respondent was not guilty of any wrong doing as intimated by the appellant in the submissions made on its behalf. The evidence on record J15 shows that the custodians of the fuel order book were the employees of the appellant and not the respondent. When DW1 suspected some fraud, he reported the matter to the police who recovered the disputed order book at the home of the appellant’s accountant, a Mr. Zulu, following which anomalies were detected in the order book. Mr. Msoni, submitted that although an attempt was made by the appellant’s witness to implicate the respondent’s witness in the fraud, there was no evidence of complicity adduced. In fact, the appellant’s witness admitted in cross-examination (page 188 of the record of appeal, lines 8 and 9 and page 196, line 7 to 19) that he had no evidence to show that Mr. Zulu paid Mr. Nagori (PW1) anything. We were beseeched to dismiss these grounds of appeal. Mr. Msoni next dealt with grounds four and five of the appeal together. Here, he stated that he relied on the arguments advanced in respect of ground one as, in his view, these two grounds are substantially a repeat of ground one. As regards grounds six and seven, which again he chose to treat together, Mr. Msoni submitted that he would place reliance J16 on the arguments he had made in respect of grounds two and three. In relation to ground eight, it was the contention of the learned counsel for the respondent that there was no misdirection, whatsoever, on the part of the trial judge when he found that the records produced before him showed that the respondent had supplied diesel worth KI,319,089.15 which had not been paid for. Mr. Msoni, informed us that in the court below, the respondent had filed four volumes of bundles of document covering 1,316 folios, to prove its case. He posited that the respondent’s first and second witnesses talked to these documents in their evidence. The appellant did not challenge any of the documents filed by the respondent either in cross examination of the respondent’s witness, or through its own evidence. Mr. Msoni, ended on a more portentous note by pointing out that the appellant’s grounds of appeal were against findings of fact. We were referred to the case Wilson Masauso Zulu v. Avondale Housing Project Limited(3) where we stated that an appellate court J17 will not routinely or lightly interfere with a trial court’s findings of fact. He also posited that the appellant had deliberately omitted to file the respondent’s bundle of documents in order to mislead the court. We were urged to dismiss the whole appeal. We have bene fitted immensely from the submissions of the learned counsel for the parties to this appeal. What is immediately discernable from the grounds of appeal and the arguments advanced in support of those grounds is that they are so integrally linked that a determination of one would invariably have a significant bearing on the others. From our perusal of the grounds of appeal and the heads of argument, and having mulled the issues and the law debated before us, we perceive the appellant’s complaints against the trial judge as comprising challenges of findings of fact. Under ground one, for example, the question whether a reconciliation on the diesel supplied by the respondent to the appellant was carried out, is clearly a factual matter determinable on the factual evidence presented before the trial court. J18 The substance of grounds two and three is that there is an exception to the general principle that an employer is liable for the dishonesty or fraud of its employees committed in the execution of the employees’ duties if the beneficiary of the dishonesty or fraud is the very party that alleges he has suffered loss or injury from the dishonesty or fraud. On the facts of the case, according to the appellant, the beneficiary was the respondent and, therefore, the case is consigned to the exception and not the general rule regarding an employee’s fraud or dishonesty. These two grounds, in our view, are premised on mixed law and fact, though they are largely factual. While determination whether the respondent was the beneficiary of the dishonesty or fraud of the appellant’s employee, is without doubt a factual matter, the argument regarding an exception to the rule on vicarious liability is a question of law. Ground four equally raises an issue of fact, being whether or not a specific reconciliation was undertaken. This is no doubt an evidentiary dispute. Ground five is clearly beyond the factual and legal realm. Was seeking an order for reconciliation an attempt to J19 buy time on the part of the appellant? This questions the motive or the mental state of the appellant which, absent an admission, can only be surmised from the available evidentiary facts. Grounds six and seven are likewise based on fact, the question assumed being who bene fitted from the appellant’s employee’s fraudulent activities? Ground eight concerns the burden of proof and whether it was on the evidence received by the trial court, discharged. We have repeatedly asserted that the settled position of the law is that this court is loath to interfere with findings of fact of a lower court, except in very limited circumstances. In Nkata and others v. Attorney General<8>, a case referred to by the learned counsel for the appellant, the Court of Appeal, predecessor to this court, guided that: “a trial judge writing alone without a jury can only be reversed on questions of fact if (i) the judge erred in accepting evidence, or (ii) the judge erred in answering and evaluating the evidence taking into account some matters which he should have ignored or failing to take into account something which he should have considered, or (iii) the Judge did not take proper advantage of having seen and heard the witnesses, (iv) external evidence demonstrates that the Judge erred in answering the manner and demeanor of the witnesses.” J20 We echoed the same views in Wilson Masauso Zulu V. Avondale Housing Project Ltd<3> where we stated that: “before the court can reverse findings of fact made by a trial Judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts or that on a proper view of the evidence, no trial court, acting correctly, could reasonably make.” Similar sentiments were strongly carried in Zambia Revenue Authority v. Dorothy Mwanza and Others<9> and in Simwanza Namposhya v. Zambia State Insurance Corporation Limited* 10>. To succeed on any of the ground impeaching solely findings of fact by the lower court, it ought to be convincingly demonstrated by the appellant that such findings were perverse, or made in the absence of relevant evidence, or upon a misapprehension of facts, or that on a proper view of the evidence, no trial court, acting correctly, could reasonably make. Under ground one, the real grievance taken by Mr. Haimbe against the trial judge was the finding that there was reconciliation of the fuel account when, according to him, the evidence on the matter was contradictory. Where the learned J21 counsel believes was the source of the contradiction in evidence, is when PW1, in cross examination, stated that the reconciliation was never reduced to writing. Furthermore, the evidence of PW1 appeared to contradict the defence and counter claim which implies that the respondent did not agree to a reconciliation being done. We have already stated that the dispute here is evidentiary; the issue being whether sufficient evidence to prove that a reconciliation occurred, was adduced or not. It is not infrequently the case that evidence adduced on a particular point may be contradictory or may be so conflicting that it is incapable of being reconciled on any basis. The trial court, as a tribunal of facts, will be obliged to evaluate that evidence and came up with findings of fact. We pointed out in the case of Patrick Makumbi and 25 Others v. Greytown Breweries Limited and 3 Others)nl that: “assessment of conflicting witnesses’ evidence is in the province of the trial court; it does not belong here.” J22 We also reiterated in that case, as we do here, what we Stated in the case of Attorney General v. Kakomal12) that: “[a] court is entitled to make findings of fact where the parties advance directly conflicting stories, and the court must make those findings on the evidence before it having seen and heard the witnesses giving evidence.” The evidence on the record as given by PW1 which Mr. Msoni, pointed to us during his submissions, was that reconciliations were done every month and the officers who did the reconciliations were mentioned by name by the witness (PW1). The witness also explained how the reconciliation was done. The appellant also admitted in the lower court that the records produced by the respondent regarding fuels uplifted against payments made were accurate. These are the same documents that showed the appellant owing the respondent the sum that was being claimed. It seems to us from a reading of the record of appeal, that there was sufficient evidence adduced upon which the learned trial judge based his findings of fact. We would hold that the judge’s findings in this regard were not perverse or made in the absence of evidence, or under a misapprehension of the facts and J23 the evidence. After making an assessment of the evidence on record, whether conflicting or not, as to whether or not there was a reconciliation undertaken, the learned trial judge came to the conclusion that there was such a reconciliation done. As a tribunal of facts, the lower court was entitled to do so, and did, in our view, come to the correct conclusion. Ground one is bound to fail. Regarding grounds two and three of the appeal, we have already stated that these raise questions of mixed law and fact. The learned trial judge is faulted for holding that the appellant should have paid for the diesel allegedly supplied by the respondent despite the irregularities brought out at trial. It seems to us that the appellant’s learned counsel is agreed with the general position regarding the liability of an employer for fraudulent and dishonest conduct of his employee in the course of his duties, as distilled by the learned trial judge from the authors of J. Munkman Employer’s Liability2 and also from the case of Lloyd v. Grace Smith & Co.<4>, as well as that of Sestili v. Triton Underwriting Insurance Agency Pty Ltd<5l. J 24 Counsel’s point of contention is that where the beneficiary of the fraudulent or dishonest conduct is the same person alleging loss or damage arising from the fraudulent or dishonest conduct, then no liability will attach to the employer. In the current case, according to Mr. Haimbe, the respondent was a beneficiary of the fraud or dishonesty of the appellant’s employee and cannot, therefore, hold the fraudulent employee’s employer vicariously liable. This, in our view, is indeed a point of law. It seems to us to be a fairly decent argument to make too. What Mr. Haimbe did not do, however, was to provide for our benefit, any legal authority that supports the argument that he makes that an exception to vicarious liability is when the complainant of a wrongful act is also the beneficiary. Consequently, we can see no justification in the present case for engrafting an exception upon the general rule which is remarkably free of qualifications, particularly an exception expressed in the terms that Mr. Haimbe uses. In any case, there is also a factual and evidentiary angle to this argument. Was the respondent really the beneficiary of the appellant’s employee’s fraudulent conduct? If this question were answered in the negative Mr. Haimbe’s argument regarding the J25 exception would collapse. The same factual question is also relevant to determining ground six of the appeal. It was submitted by Mr. Msoni, on behalf of the respondent, that an attempt by the appellant’s witness to implicate the respondent’s employee in the fraud turned out not to be supported by any evidence adduced by the appellant in the court below. In the appellant’s submissions in response to the respondent’s submissions, Mr. Haimbe stated thus: “Though the evidence on record shows the custodians of the fuel order book were the employee of the appellant, we submit that the beneficiary of the nefarious activities of Mr. Zulu was the respondent owing to the fact that the evidence on record shows that all the money realized from the payments were made to the respondent by cheque. It is our belief that Mr. Zulu was not carrying out his illegal activities because he was so enamored with the respondent but because he was acting in conjunction with the latter as that was the only way he would gain benefit from his endeavors as he was not in control with the respondent’s bank accounts.” (underlining our own for emphasis) There was no evidence on record pointed to by Mr. Haimbe in his submissions to the effect that the fraudulent activities of Mr. Zulu were done in concert with the respondent or its J26 employees. The statement that Mr. Zulu was acting in complicity with the respondent because payments to the respondents were made by way of cheque, is not supported by evidence either. As it is, we cannot rely solely on Mr. Haimbe’s belief that Mr. Zulu worked with the respondent to defraud the appellant for their mutual benefit, nor can we accept the inferential deduction that he makes that the fraudulent employee was acting in complicity with the respondent because that was the only way he could benefit. We find this conclusion rather obtuse, skewed and incomprehensible. We are therefore, unable to accept the arguments that Mr. Haimbe makes in regard to grounds two and three. We dismiss those grounds of appeal accordingly. Under ground four of the appeal which, as we had earlier on pointed out, is substantially the same as ground one, the appellant impugns the holding of the trial court that a specific reconciliation was carried out despite evidence on the record to the contrary. We have adequately addressed the concerns raised under this ground when we expantiated the legal position in regard to ground one of the appeal. Frankly, we do not think that this J27 ground raises anything that has not been covered under ground one. It stands to suffer the same fate as ground one. It has no merit and is accordingly dismissed. Ground five impugns the trial court’s findings that the appellant’s seeking an order of reconciliation was an attempt to buy time. We pointed out earlier on that the motivation or reason for refusal by the appellant to seek a reconciliation implies a state of affairs which, short of a positive admission by the appellant itself, can only be a matter of surmise or conjecture from available proven facts. Under this ground, the learned counsel for the appellant premised his argument on what he perceived as the trial court’s failure to take into account evidence that was adduced before him to support the claim for an order of reconciliation. We have already stated in this judgment that an appellate court will not ordinarily disturb or tamper with a trial court’s findings of fact, especially findings and conclusions reached after an assessment of evidence submitted before it at trial. The duty of appraising any evidence given at the trial is pre-eminently that J28 of the trial court which had the benefit of seeing and hearing the witnesses. The appellant’s argument is that the appellant did provide evidence justifying their call for a reconciliation. The learned trial judge dismissed the appellant’s plea in the words quoted by the appellant’s learned counsel at page 30 of the record of appeal as follows: “I agree with the plaintiffs submissions that the order for a reconciliation being sought by the defendant is an attempt by the defendant to buy time. I am of the considered view that the defendant has failed to prove its counter-claim on a balance of probabilities.” In our view, as a tribunal of fact the trial court cannot be faulted for making a finding of fact that the evidence adduced before it was insufficient to sustain the counter-claim. The appellant should demonstrate convincingly in what ways the finding of the trial court were perverse or not borne out of evidence. We do not think Mr. Haimbe has discharged this feat. Grounds six and seven raise substantially the same issue as was raised in grounds two and three, namely whether the respondent was a beneficiary of the appellant’s employee’s J29 fraudulent activities. Mr. Haimbe went to great lengths trying to show us what the different witnesses stated in the court below. He, for example, referred us to a statement in the witness’ statement of DW1, Goodward Mulubwa, at page 122 of the record of appeal in which the witness averred that the respondent was the recipient of the proceeds as the appellant made payments by cheques payable to the respondent. We were also referred to the evidence of PW1 at page 187 of the record of appeal, which was in more or less the same lines. It is undeniably the case that during trial, witnesses will give numerous statements and averments which will, by the very nature of litigation, normally contradict each other. Taken by themselves, and read in isolation, those statements and averments are often not entirely useful in determining a point in dispute. They only become useful if they are weighted against one another in the light of other evidence, and after an examination and cross-examination of their authors. As we have already stated, the trial court bears the responsibility of undertaking such assessment after taking all the necessary circumstances into account, including the demeanor of the witnesses. It is the evaluated evidence, rather than isolated J30 statements of witnesses that will be relevant in the final determination by the court. It is not sufficient to merely show that a particular statement was made and admitted in evidence at trial. While Mr. Haimbe pointed to some isolated statements of witnesses, the learned trial judge in the passage quoted by Mr. Haimbe from page 30 of the record of appeal, clearly came to a factual conclusion after an evaluation, of not only those statements which Mr. Haimbe fingered, but the other evidence as well. The court stated: “The defendant’s only witness told this court that it stopped paying the plaintiff when it discovered that fraudulent activities had occurred and that the beneficiaries of these was the plaintiff and the defendant’s employees, an assertion unsupported by other evidence. I am fortified by the authorities aforesaid that the defendant should be held vicariously liable for the fraudulent activities of its Chief Accountant and if it so wishes it can commence an independent claim against him in order for him to pay back what he stole from his employer.” In our considered view, the appellant’s grievance here, being one founded on facts and the evaluation of evidence by the trial court, cannot succeed in the absence of clear demonstration that one of the grounds exists upon which an appellate court can interfere with the factual findings of the lower court as we J31 articulated them in Nkata & Others v. The Attorney-General!1). Grounds six and seven are bound to fail and we dismiss them. Under ground eight, which as we pointed out already, was not originally framed in the memorandum of appeal, the appellant faults the trial judge’s finding of fact that the respondent had produced records confirming that the respondent supplied diesel worth KI,319,089.15 which records the appellant failed to challenge. Mr. Haimbe once again took us through the evidence of the witnesses. Mr. Msoni on the other hand submitted that four (4) volumes of bundles of documents covering 1,316 pages were submitted in evidence in the lower court to prove the respondent’s case. These documents were in fact accepted as reflecting the correct position by the appellant itself in the lower court, but were omitted from the record of appeal before us. We are impelled by this submission to digress and state that where the record of appeal is incomplete as was alleged by the respondent’s learned counsel in the present case, it beholves an aggrieved party to take out an appropriate application at the earliest time. We would be inclined to consider dismissing an J32 appeal based on a record of appeal that is non-compliant with the rules and in respect of which no application to make amends has been made. Here, the issue of the record being incomplete was only raised in passing by Mr. Msoni and not for our decision. We do not intend to pursue it further, but are certain that the parties have noted our view on this point. Reverting to ground eight of the appeal we have already given our position regarding evaluation of evidence given at trial vis-a-vis the role of the appellate court. No useful purpose will be served in repeating that position here. The effect of what we have already stated relative to the other grounds of appeal is that ground eight of the appeal also collapses. The net result is that all the grounds of appeal are without merit and are accordingly dismissed. Costs shall be for the respondent to be taxed in default of agreement. M. Malila, SC SUPREME COURT JUDGE C. Kajimanga SUPREME COURT JUDGE N. K. Mutuna SUPREME COURT JUDGE