Mozi Consultancy Limited v Zambia National Commercial Bank Plc (APPEAL NO.261/2022) [2023] ZMCA 364 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.261/2022 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: APPELLANT ZAMBIA NATIONAL COMMERCIAL BANK PLC RESPONDENT CORAM: KONDOLO S. C., MAJULA, AND CHEMBE JJA On 16tli November, 2023 and 22nd November, 2023 For the Appellant Mr. G. Mileji- Messrs Malambo & Co For the Respondent Mr. M. Chiteba with Mr. E. S. Lilanda - Messrs Mulenga Mundashi Legal Practitioners JUDGMENT CHEMBE, JA delivered the judgment of the Court Cases referred to: 1. Nkongolo Fanns v ZNBC Limited and 2 others (2007) ZR 19 2. Nkhata and four other v The Attorney General ( 1966) ZR 12 4 3. Mobil Oil Zambia Limited v Ramesh M. Patel (1988) ZR 8 J2 4. Augustine Kapembwa v Danny Maimbolwa & another (1981) ZR 5. The Attorney General v Marcus K Achiume (1983) ZR 6. Eagle Charalambous Transport V Gideon Phiri SCZ Judgment No 8 of 1994 Zambia Revenue Authority v Dorothy Mwanza and others (201 OJ ZR 181 7. 8. Colgate Palmolive (z) Inc v Shemu and others Appeal No 181/2 005 9. Cheall v Association of Professional, Executive, Clerical and Computer Staff ( 1983) ALL ER 884 10. Hoyds Financials Limited v Bisouite Zambia Plc SCZ/ 8/ 140/ 2009 11 . Wynina (Pty) Limited v MBCA Bank Limited SC 27/2014 12. Fumbelo v The People Appeal No 476/ 2013 13. Elias Kunda v The People (1980) ZR 100, 14. Tobacco Association of Zambia v Kayanje Farming Limited Appeal No 71 of 15. Excelerate Technology Ltd v Liadsay Cumber batch and others (2015) ELOHC 204 QB 16. Sylvester Nthenge SCZ Judgment No 5 of 2013 17. Sylvester Shipolo v Shadreck Maipambe Appeal No 01 /2 016 18. Power Equipment Limited v Goldtronics and Another 1998/ HP/ 1946 19. Philip Mutantika and another v Kenneth Chipungu SCZ Judgment No 13 of 20. CAA Import of Export v Bidvest Food Zambia Limited and 4 other 2013/HPC/0475 21. Msauide Phiri v BHB Contractors (z) Ltd and two others Appeal No 136/2017 22. Union Bank Zambia Limited v Southern Province Cooperative Marketing Limited (1997) ZLR 95 23. Ministry of Home Affairs v Lee Habasonda (2007) ZR 207 24. Situna v The People (1982) ZR 115 25. Chibwe v Chibwe SCZ 38 of 2000 26. Lesile Chibluse v Tshiukobo Appeal No 21 of 2021 27. Collect v Van ZYC Brothers Limited (1966) ZR 65 CA 28. Mutale v Zambia Consolidated Copper Mines Limited (1993-1994) ZR 94 29. YB and F Transport Limited v Supersonic Motors Ltd (2 000) ZR 22 J3 30. GDC Hauliers (Zambia) Limited v Trans Carriers Limited (2001) ZR 47 31 . Kanjala Hills Lodge Limited v Stanbic Bank Limited (2012) ZR 33 32. Chrismar Hotel Limited v Stanbic Bank (z) Limited (2017) ZR 20 33. Bank of Zambia v Caroline Anderson and another (1993) ZR 34. Attorney General v Marcus Achiume (1983) ZR 35. D. P Services v Municipality of Kabwe (1976) ZR 110 36. Fruit and Veg City Holdings (pty) Limited v Martin Simumba CAZ/ Appeal No 36 of2021 37. Lloyds Financials Limited v Bisonite Limited Plc SCZ 18/ 140/ 2009 1.0 INTRODUCTION 1. 1 This appeal emanates from the judgment of Judge W. S. Mwenda dated 24th August 2022 in which she ordered that the Appellant's claims which she upheld be assessed on the basis of quantum meruit and dismissed the Respondent's counter claim. 1.2 The Respondent filed a cross appeal challenging the dismissal of its counterclaim and other findings. 2.0 BACKGROUND 2.1 The Respondent, by letter dated 14th March 2016, engaged the Appellant to negotiate and facilitate tax liability reductions J4 relating to the tax audit findings by Zambia Revenue Authority (ZRA) . 2.2 According to the tax audit assessment dated 7 th March 2016, the tax liability stood at K79, 282, 989.00. This letter was a response to a letter from the Respondent dated 25th January 2016. 2.3 The Appellant prepared an objection to the assessment dated 7 th March 2016 which culminated in the reduction of the tax liability from K79 282 989.00 to K12026 224.00. 2.4 On 16th May 2016, the Appellant advised the Respondent through a letter that it had achieved 85% success on the assignment as the assessment had been reduced to Kl2 , 026, 224.00. The Appellant sent an invoice for the sum of 3, 909, 007. 15 dated 20th May 2016 which was calculated in accordance with section 4 of the engagement letter. The invoice was settled in full. 2.5 In the same letter, the Appellant advised the Respondent that there were other contestable matters which could reduce the liability further. JS 2.6 On 16th August 2016, the Appellant was engaged to carry out the second assignment in relation to the tax arrears arising out of the garnishee proceedings relating to Post Newspapers Limited. 2.7 The Appellant performed the assignment successfully and resolved the issue with ZRA. 2.8 On 19th October 2016, the Appellant wrote to ZRA requesting for a settled position and further waiver of penalties. ZRA, by letter dated 25th October 2016, agreed to waive the penalties which brought the amount due under the assessment to KB, 838, 836 .00. The Respondent paid the amount assessed in full on 27t h October 2016. 2.7 On 26 th October 2016, the Appellant, by letter, advised the Respondent of the audit closure and final assessment. It also included a fee note in the sum of Kl 488 .390.90 for the conclusion of the integrated tax audit and K538, 784.00 for the waiver of penalties in connection with the second assignment. In the same letter, the Appellant explained that there had been a casting error in the initial assessment which was presented J6 as K79 282,989 instead of Kl00 960,392.78 hence the additional fee. The Respondent settled the invoice. 2 .9 By letter dated 16th January 2017, the Appellant was engaged by the Respondent in the third assignment to reconcile all its tax accounts with ZRA including seeking a waiver of interest and penalties related to the demand notice dated 29th February 2016. The Appellant was also expected to carry out an integrated tax health check and develop tax planning strategies. 2 . 10 The demand notice from ZRA included principle tax of K48.44 million and penalties and interest of K52, 202, 224.30 bringing the total liabilities to Kl00, 646, 794.43. The Appellant wrote to ZRA on 1st March 2017 and made submissions to the effect that all the liabilities in the demand notice had been reconciled and s ettled. ZRA agreed with him in the letter dated 26 th June 2017. 2.11 The Appellant then proceeded to notify the Respondent and included a fee note in the sum of K2 849 627. 30 for settling the demand notice. J7 2.12 On 28th August 2017, the Appellant wrote to the Respondent about the conclusion of the assignment and the handing over of the final reports . The Appellants also included his final fee notes in the sums of K595, 482.33 for the health check assignment and K387, 078.76 for the integrated tax governance assignment. There was also a demand for K39, 221.50 on invoice number 24 7 which h ad not been settled. 2.13 The Respondent did not settle the Appellant's invoices which prompted the latter to commence legal proceedings to recover its fees. The Appellant demanded payment of the following sums. (a) K2 849 627 for services rendered in the reconciliation and closure of the ZRA demand notice as invoice No 247. (b) K39 221.50 being interest on the overdue payment under invoice No. 24 7 (c) K609, 757.52 for under taking the integrated tax health check. (d) K449, 011.00 being fees for services rendered in undertaking and integrated health check and issuing the tax governance report under invoice No. 34. (e) Kl 1 526. 00 being overdue interest on invoice 33 and 34. J8 (I} K4 500, 000. 00 as damages in lieu of termination of contract. (g) Cost. 2.15 The Respondent filed a defence in which it denied all the claims. The Respondent also filed a counterclaim demanding payment of the sum of Kl 813 715.41 which was overpaid due to the inflation of invoice number 235 and interest. 3.0 DECISION OF THE COURT BELOW 3.1 After analyzing the evidence and the arguments, the learned trial Judge dismissed the claim for K2, 849,627.30 under invoice No. 247 together with the attendant interest of K39, 221.50. 3.2 Regarding the claims for payment of K609, 759.52 and K449 , 011.36, the Court ordered that the Appellants claims be referred for assessment on quantum meruit basis. This was after making a finding that the letter of engagement was ambiguous on the computation of the sums due as it also referred to payment being based on time spent. 3.3 The trial Judge also dismissed the claims for overdue interest in the sum of Kl 1, 526.00 and K4, 500,000.00 in damages for J9 breach of contract. She also dismissed the Respondent's counterclaim on the ground that ZRA was aware of the casting error and that the correct figure was of the penalties and interest Kl00, 646,794.43. 4.0 THE APPEAL 4.1 Dissatisfied with the decision, the Appellant launched an appeal in which the following grounds were raised: i. The Court below erred both in law and/act in its analysis of the sequence of the three independent engagement letters, leading to its erroneous finding that even, having proved its case performance, the Appellant is not entitled to the amounts claimed in its pleadings in respect of tax health check and tax planning or governance reports but are to be determined on quantum meruit based on time spent and more so to ultimately deny the contractual sums due to the Appellant contrary to the facts on record and agreement between the parties; ii. The Court below erred in law and/act in its interpretation of tax engagement letters dated 16th January 2017 and signed on 10th February 2017 and engagement letter dated 14th March 2016 and signed on 17th March 2017, leading to the erroneous decision to have the sum claimed in respect of the reconciliation and closure of the demand notice of 29th February 2016 dismissed, contrary to the Court's own findings on record. JlO iii. The Court below misdirected itself in law and fact when it held that in relation to the damages in lieu of termination there was no way of ascertaining the value of the work and that clause 4 of the engagement letter executed on 1 ()th February 2017 creates an ambiguity that calls for reconciliation of the proposed fees when the contract and the same clause 4 the Court cited has a distinct remuneration formula for works pertaining to negotiations and obtaining a waiver of penalties and interest owed to ZRA by the Respondent. iv. The Court below misdirected itself in law and fact when, having found in part that the Appellant performed the contract with regard to the aspect of quantifying the penalties and interest owed by the Respondent, and also having found in part that the Appellant successfully submitted the self-declaration of liabilities arising from the Tax Health check to ZRA, and having equally found that the Defendant in breach, terminated the contract before making payment for the principle taxes, and having found in part that in relation to the claim for damages for breach, the Appellant be remunerated on quantum meruit preferred to later on to deviate from its own findings of fact and determination by dismissing the claim in its totality; and v. The Court below having found in part that contractual interest is due erred both in law and fact by not determining the exact contractual interest rate which should apply to the amount due. Jll 4.2 The Respondent, equally disconsolate with the decision of the Court below, filed a cross appeal advancing the fallowing grounds: 1. That the trial Judge erred both in law and fact when she dismissed the Respondent's counter claim for the sum of Kl, 813, 715.41 the same being the amount that was paid to the Appellant in respect of invoice No. 235: a. Without making a determination on whether the Respondent overpaid the Appellant the said K1813 715.41 and b. On account of the reason that the Respondent and ZRA were apparently put on notice of the contents of the Appellant's letter dated 26th October 2016, without due regard to ZRA's letter dated 8th September, 2017. 2. The learned trial Judge erred in law and/act when she held at page J87 that the outstanding liability regarding the demand notice of 29th February 2016 was fully settled on 27th October 2016. 3. The learned trial Judge erred in law and fact where she held at page JBS that the letter purportedly issued by ZRA dated 26th June 2013 was authentic; 4. That the learned trial Judge erred in both law and fact when she awarded costs to the Appellant without giving any reason and notwithstanding the fact that all the Appellant's claims as set out in the statement of claim were unsuccessful; and J12 5. The learned trial Judge erred in law when she entered judgment in favour of the Appellant on quantum meruit basis for matters that were not pleaded and on which she found that the Appellant did not prove in respect of the following liquidated claims: (a) Payment of the sum of K609, 759. 52 for services rendered in undertaking an integrated tax health check; and (b) Payment of the sum of K449,0l 1.36 being fees for services rendered in undertaking an integrated tax health check and issuing the integrated tax health governance report. 5.0 APPELLANT'S ARGUMENTS 5.1 The Appellant filed heads of argument in support of the appeal on 7 th November 2022. Counsel for the Appellant opted to argue grounds 1, 2 and 3 together. He submitted that the learned trial Judge misapprehended the facts of the case which resulted in flawed analysis and findings. 5 .2 It was contended that the trial Judge wrongly stated at page J78 of the Judgment that the Appellant's 1st assignment was related to closing of the ZRA demand notice when it was not. It was submitted that a further error was the trial Court's finding tha t the Respondent's refusal to p ay the fees under the first J13 assignment was due to the fact that it was not the sole actor in facilitating the tax savings under the demand notice date 29th February 2016 and that the Appellant had overcharged the Respondent under the second assignment for work done on the post newspaper issue. 5.3 The Appellant contended that the trial Court's erroneous reference to the demand notice of 2016 as being part of the 1st assignment influenced the Court's finding that the Appellant was paid in full in September 2016. 5 .4 Regarding the third assignment, the Appellant submitted that the trial Court made a correct finding that the Appellant had closed off the demand notice but it went ahead and held that the principle, interest and penalties were not set aside at the Appellant's instance. We were referred to page 93 of the r ecord of appeal. 5.5 The Appellant also referred to page 95 of the record of appeal where the learned trial Judge referred to a saving of K54 202 224.30 under invoice No. 247 when the actual figure was K52 202 224 .30. It was contended that the claim was dismissed as a result of the erroneous figure . J14 5.6 It was submitted that the trial Court's errors and misapprehension of facts led to a perverse con clusion that the outstanding liability r egarding the demand notice had been fully settled on 27th October 2016 and that the Appellant was not entitled to any further payments. 5 .7 We were referred to numerous cases inclu ding Nkongolo Farms v ZNBC Limited and 2 others1 , Nkhata and four other v The Attorney General2, Mobil Oil Zambia Limited v Ramesh M. Patel3, Augustine Kapembwa v Danny Maimbolwa & another4, The Attorney General v Marcus K Achiume5 , Eagle Charalambous Transport V Gideon Phiri6 and Zambia Revenue Authority v Dorothy Mwanza and others7 on wh en an appellate court can interfere with a trial court's findings of fact. 5 .8 The Appellant insisted that the evidence adduced showed that it did conduct a tax health ch eck and produced a final report together with a tax governance report in accordance with the terms of the assignment but was surprised that the third assignment was terminated. It was argued that the trial court erred by failing to enforce the contractual terms of the third JlS assignment as it related to payments. The Appellant referred us to the case of Colgate Palmolive (z) Inc. v Shemu and others8 . We were urged to uphold the first three grounds of appeal. 5 .9 In relation to ground 4, the Appellant submitted that the purpose of the third assignment was to quantify penalties and interest outstanding and make a declaration to ZRA on a self - disclosure basis to facilitate negotiations for their waiver. It was argued that after establishing that the Appellant had undertaken the assignment satisfactorily, the trial court should have awarded the Appellant the fees stated in the contract at page 337 of the record of appeal. 5.10 It was submitted that the trial Court fell in error when it held that there was nothing on record to assist the Court to come up with the value of the Appellant's work or how the figure of K4 500 000. 00 was arrived at. 5.11 The Appellant also bemoaned the trial Court's failure to award it the sum claimed after it was established that the Appellant had successfully obtained 100% waiver of penalties and interest due to ZRA. It was contended that by terminating the contract J16 after the task was performed, the Respondent stood to gain from its own wrong doing. The Appellant referred us to the case of Cheall v Association of Professional, Executive, Clerical and Computer Staf./9 5 . 12 It was submitted further that the trial Judge ought to have followed the guidance given by the Supreme Court in the case of Lloyds Financials Limited v Bisonite Zambia Plc10 in deciding whether to award the claim for K 4 500 000. 00 under the 3 rd assignment. 5.13 The Appellant maintained that the estimated penalties and interest revealed by the tax health check report was K120 458 382 .82 and the K4 , 500 000.00 being claimed was 4% of that figure . 5.14 Relying on the Zimbabwean case of Wynina (Pty) Limited v MBCA Bank Limited11 , the Appellant submitted that it was entitled to damages for breach of contract. 5 . 15 The Appellant argued that the learned trial Judge had failed to properly analyze the evidence before her. The argument in J17 support of grounds 1, 2 and 3 in that regard were repeated. We were urged to find that ground 4 had merit. 5 .16 With respect to the 5 th ground of appeal, the Appellant submitted the Court below should have determined the rate of interest applicable having found that interest was provided for in the contract. We were referred to section 2 of the Judgments Act and Order 13 / 1 / 5 of the Rules of the Supreme Court. It was submitted that the Court below erred by dismissing the claims for interest. 6.0 RESPONDENT'S ARGUMENTS 6.1 The Respondent filed heads of arguments in opposition to the appeal together with heads of arguments in support of the cross appeal. Counsel for the Respondent opted to argue grounds 1, 3 and 4 of the Appellants grounds of appeal together. 6.2 In relation to ground 2, the Respondent conceded that the trial Judge erred in her analysis of the three engagements by treating the assessment issued in January 2016 and the Demand Notice dated 26th February 2016 as one and the same. It was J18 submitted that the assessment formed the basis of the first engagement. 6.3 The Respondent, however, argued that despite the error, the Appellant did not prove its claim for payment of K2 849 627 .30 relating to the reconciliation and closure of the Demand Notice in the third assignment. It was submitted that the billing, according to the terms of engagement, was based on the amount of tax saving achieved by the Appellant. 6.4 It was submitted that the Appellant's claim for the sum of K2 849 627.30 was premised on the belief that the Appellant had achieved 100% savings on the sum of K52, 202, 224.30 reflected in demand notice for interest and penalties. It was contended, however, that the Appellant's witness had admitted under cross examination that at the time of its engagement, the interest and penalties in the demand notice had reduced from the initial sum of K52,202,224.30 and as a result the claim for K2 849 627.30 could not stand. 6.5 The Respondent submitted further that at the time of engaging the Appellant for the third assignment, the only amounts outstanding on the demand notice was K34 981.82 in interest J19 and K329, 981.82 in penalties as borne out by the printout obtained from ZRA in February 2017. We were referred to page 614 of the record where the period wise tax liability for PAYE was produced and compared with the demand notice to ascertain how much was owing at the time of the Appellant's engagement for the third assignment. 6.6 We were also referred to the Appellant's witness's testimony where he stated that the Appellant was to be paid for closing off the demand notice irrespective of the efforts made by the Respondents prior to its engagement which was contrary to the assertion in the statement of claim that it (the Appellant) was responsible for the waiver of the entire penalties and interest. 6 .7 Relying on the case of Fumbelo v The People12 , the Respondent argued the inconsistencies showed that the credibility of the Appellant's witness was questionable and the Court should not have attached much weight to it. We were also referred to the cases of Elias Kunda v The People13, Tobacco Association of Zambia v Kayanje Farming Limited14 and Excelerate Technology Ltd v Lindsay Cumber batch and others15 J20 6.8 It was submitted that the assertion that the Appellant was entitled to take full credit of the waiver irrespective of the sums outstanding at the time of engagement was contrary to the condition of the contract which required it to negotiate waiver of interest and penalties arising from the demand notice. Reference was made to the case of Sylvester Nthenge16. It was submitted that at time of the Appellant's engagement, the Respondent had already started the process of closing off the demand Notice. 6 .9 Our attention was drawn to the letter from ZRA dated 8 th September 201 7 which confirmed that as at 27th September 2016 , the outstanding amount on the demand notice was K329 , 993.02 for penalties and K34 981.82 for interest. 6 . 10 It was submitted that the Appellant relied on the letter from PW2 dated 26th June 2017 which stated that the outstanding p enalty of K329, 993.02 and interest of K34, 981.82 were waived on 26th June 201 7. We were invited to consider the letter from the Acting Commissioner Domestic taxes dated 4 th May 2018 who confirmed that the letter by PW2 did not correctly represent the Respondent's tax affairs at the m aterial time. J21 6.11 The Respondent noted that PW2 was the Appellant's subject matter expert for the assignment and could therefore not be relied upon to justify the Appellant's claim on the issue. It was submitted that PW2 who was an employee of ZRA at the material time accepted to work with the Appellant thereby raising a conflict of interest. We were urged not to place reliance on the letter authored by PW2 dated 26th June 2017 as it was unreliable. 6.12 Regarding grounds 1, 3 and 4, the Respondent submitted that according to the third engagement letter the Appellant was also expected to conduct an integrated tax health check and issue a report on the same and a tax governance report. It was also submitted that according to the terms of contract, the Appellant was to be paid upon successful conclusion of the assignment which would be signified by confirmation from ZRA that the audit was closed. 6.13 The Respondent contended that the payment could only be triggered by the successful conclusion of the assignment and no payment was due to the Appellant under the third engagement as the assignment was not concluded. It was J22 submitted that the PW 1 confirmed that the tax health report and the tax governance report were not finalized. We were referred to the case of Sylvester Shipolo v Shadreck Maipambe17 which discussed the effect of contracts with a condition precedent. 6.14 It was submitted that the Court correctly dismissed the claim for K4 500 000.00 because there were contradictions in the letter of engagement. We were urged to interpret the contract strictly against the Appellant who drafted it. Our attention was drawn to the cases of Power Equipment Limited v Goldtronics and Another18 and Philip Mutantika and another v Kenneth Chipungu 19 in that regard. 6.15 The Respondent supported the trial Court's finding at page J97 of the Judgment that the engagement letter was ambiguous as it provided that the fees for the third assignment were to be computed based on time spent but also included a table of the proposed fees based on percentages of the tax liability saved. It was submitted that the trial Judge was on firm ground when she dismissed the Appellant's claim for K4 500,000.00 as there was no proof that the assignment was concluded. J23 6.16 In the alternative, the Respondent argued that the Appellant had failed to prove that there was a breach of contract. We were referred to the case of CAA Import of Export v Bidvest Food Zambia Limited and 4 others20 and Msanide Phiri v BHB Contractors (z) Ltd and two others21 on when damages were payable for breach of contract. We were urged to dismiss grounds 1, 3 and 4 for being devoid of merit. 6.17 On ground 5, the Respondent lamented that the Appellant had not specified whether the interest it referred to in this ground was prejudgment interest or post judgment interest. After analyzing the Judgments Act, the Respondent submitted that awarding the Appellants K39 221.50 in interest would have resulted in an award of compound interest which was contrary to the Act. 6.18 It was submitted further, that the Court having already awarded prejudgment interest could not make an order for interest on interest in the absence of express agreement. The case of Union Bank Zambia Limited v Southern Province Cooperative Marketing Limited22 was cited. The Respondent maintained that there was no express agreement on the charging of J24 compound interest in the letter of engagement. It was also submitted that rate of interest was not disclosed in the engagement letter. We were encouraged to dismiss the 5 th ground of appeal. 7.0 ARGUMENTS IN SUPPORT OF THE CROSS APPEAL 7 .1 In support of the 1st ground of the cross appeal, the Respondent submitted that the Appellant was engaged on the first assignment to resolve the outstanding tax assessment for the period 2010-December 2014 which stood at K79 282, 989.00. 7.2 It was submitted that according to clause 4 of the engagement letter, the Appellant's fees were tied to the value of the liability saved from the assessment. The Respondent contended that the trial Court misdirected itself when it referred to the figure in the demand notice as opposed to the amount indicated in the assessment of January 2016. We were urged to reverse the finding on that score. 7.3 The Respondent submitted further that the sum of Kl 813 715.41 was over paid to the Appellant as a result of the misrepresentation on the value of the assessment. It was J25 argued that the Appellant had inflated the value of assessment to Kl00, 960,392.00 and caused the Respondent to pay an additional Kl 488 390.00 together with Reverse VAT which was paid directly to ZRA. 7.4 The Respondent maintained that at the time the Appellant was engaged for the 1st assignment, the value of the assessment had already been reduced to K79, 282,989 and this position was confirmed via letter dated 8 th September 2017. The Respondent denied that there was a casting error in the assessment sum which increased it to Kl00 960,392.78. It was submitted that the learned trial Judge misdirected herself when she found that ZRA had expressed the figure of Kl00 646 794.43 as the initial tax liability. It was argued that this figure actually related to the demand notice and not the assessment. We were implored to reverse the trial Court's findings in this regard as they were not supported by evidence. We were referred to the cases of Ministry of Home Affairs v Lee Habasonda23, Situna v The People24 and Chibwe v Chibwe25 which held that the trial court should consider all the evidence before it. J26 7.5 A further argument by the Respondent was that the Appellant was unjustly enriched by the overpayment. We were referred to the case of Leslie Chikuse v Tshinkobo26 where this Court considered the circumstances under which restitution can be ordered. We were urged to allow the 1s t ground of the cross appeal. 7 .6 In relation to ground 2 the Respondent submitted that the trial Court's finding that outstanding liability on the demand notice of 29th February 2016 had been fully settled on 27th October 2016 was not supported by the facts. It was contended that the Court below was laboring under the misapprehension that the liability of K8 838 826 .00 arose from the demand notice when it related to the assessment. The Respondent maintained that the Court's conclusions must be based on facts. 7. 7 It was also argued that the Court below misapprehended the facts when it held that the Appellant was not entitled to the sum of K2 849,627.30 for the successful waiver of K52 202 224.30 in interest and penalties. We were implored to vary this finding to reflect the fact that at the time the Appellant was engaged, the penalties and interest had significantly dropped. J27 7.8 Regarding ground 3, the Appellant submitted that the trial Judge erred when she held that the letter issued by ZRA dated 26 th June 2017 was authentic in view of the letter dated 4 th May 2018 from the Acting Commissioner Domestic taxes who clarified that the earlier letter did not reflect the correct state of the Respondent's tax affairs. It was argued that the letter in issue was authored by PW2 a team member of the Appellant and therefore could not b e relied upon. 7.8 It was submitted further the Respondent had proved that the letter was not authentic and therefore the Appellant could not seek protection under section 13 (5) of the Zambia Revenue Act. We were urged to allow this ground of appeal. 7.9 In relation to ground 4 , the Respondent challenged the awarding of costs to the Appellant when all its claims as set out in the statement of claim had failed. Relying on order XL Rule 6 of the High Court Rules, the Respondent submitted that the award of costs is discretionary and the rule prohibits the Court from awarding costs to the unsuccessful party. We were referred to the case of Collect v Van ZYL Brothers Limited27 which guided that judicial discretion must be exercised on J28 reason and justice. To the contrary it was argued a successful party should be granted his costs. The cases of Mutale v Zambia Consolidated Copper Mines Limited28 and YB and F Transport Limited v Supersonic Motors Ltd29 were cited. 7.10 In relation to ground 5 , the Respondent was of the view that the trial Court should not have entered judgment in favour of the Appellant on quantum meruit basis for matters that were not pleaded. These included payment for sum of K609 759.52 for services rendered in undertaking and integrated health check and K449, 011.36 for issuing the Health Governance Report. 7.11 It was argued that the trial court found that the Appellant did not prove the above liquidated claims. The Respondent was of the view that the Appellant should have amended the reliefs sought to include a claim for quantum meruit. It was submitted that trial judge fell into grave error when she entered judgment in favour of the Appellant on matters which had not been pleaded. J29 8.0 APPELLANT'S ARGUMENTS IN OPPOSITION TO THE CROSS APPEAL 8.1 The Appellant filed arguments in opposition to the cross appeal. It was submitted that the Appellant had discharged it burden of proof regarding the claim for K2 849 627 .30 as it had shown that it made several submissions to ZRA which had resulted in the waiver of the entire liability of K52, 202 224.30. There was evidence on record that Demand Notice No 1865342 was set aside demonstrating that the Appellant had fulfilled its obligations under the contract. 8.2 The Appellant maintained that the reversals in the demand notice were only done after its engagement. It denied that the only amounts that were outstanding on the demand notice were K34, 981 interest and K329 981 penalty. It was submitted the period wise tax payer liability from 2013 to 2015 which the Respondent presented to Court was misleading as the taxes and penalties were not static. 8.3 It was submitted further that despite some changes in the tax figures, the demand notice remained undischarged and the Appellant's duty was to close the demand notice which it did. It J30 was contended that there was no evidence to show that the Respondent intended the fees to be computed on the balance of penalties and interest instead of the amount reflected on the demand notice of K52 202 224.30. The Appellant maintained that it was entitled to compute its fees using the formula in the contract. 8.4 The Appellant argued further that the table produced by the Respondent at page 614 of the record showed that the principle liabilities fell after its appointment on 17th January 2017. 8.5 The Appellant denied that there was any contradiction between the evidence of PWl and the statement of claim as the accounts did not remain static. 8.6 Regarding the credibility of PW2, the Appellant referred to the case of GDC Hauliers (Zambia) Limited v Trans Carriers Limited30 and submitted that the contradictions did not go to the root of the matter. It was submitted further that PW2 was a member of the Appellant's team before he was employed by ZRA and did not actually participate in the assignment. The allegations against him were therefore unsubstantiated. J31 8. 7 Regarding the fee structure being ambiguous the Appellant argued that the words below the heading in clause 4 were a chapeau or preamble to the billing structure but the agreed fee structure was indicated below. The Appellant denied that there was any ambiguity in clause 4 on the payment method. It was submitted that all the fees were computed on the basis of what was agreed including the claim for K4 500,000 .00. 8.8 In response to the 5 th ground of appeal, the Appellant submitted that the terms of engagement contained a default clause on interest and the Court was in order to treat it as part of the judgment debt. We were referred to the cases of Kanjala Hills Lodge Limited v Stanbic Bank Limited31 , Chrismar Hotel Limited v Stanbic Bank (z) Limited32 and Bank of Zambia v Caroline Anderson and another33 in which it was h eld that pre-judgment interest should be merged with the judgment debt and may earn post judgment interest. 9.0 RESPONDENT'S ARGUMENTS IN REPLY 9 .1 The Respondent filed arguments in reply 1n which the arguments in opposition were rehashed. On ground one, the Respondent maintained that the Appellant was over paid J32 because it calculated its fees on the basis of an overstated assessment figure which included a non existent casting error. 9.2 The Respondent submitted that the Appellant's arguments that it had failed to demonstrate that it had applied for a waiver of the sum of K52 202 224 in the demand notice was misguided as it {Appellant) bore the burden of proof in the Court below. 9.3 In response to the assertion by the Appellant that the balances on the tax online system were different from those on the demand notice, the Respondent submitted that the Appellant was engaged to close the demand notice which related to specific tax periods which position was confirmed by the letter dated 8 th September 2017. 9.4 Regarding the authenticity of the letter dated 26th June 2017, the Respondent maintained that ZRA confirmed that the only liability that was outstanding was the penalty of K329 993.02 and interest of K34 981.82 contrary to the assertion in the farmer letter. 9.5 In relation to grounds 4 and 5, the Respondent rehashed its earlier arguments and I shall not summarise them here. J33 10.0 HEARING OF THE APPEAL 10.1 At the hearing of the appeal, both parties relied on their written heads of argument. Counsel for the Appellant augmented the written arguments by submitting that should the Court agree that the trial Judge misapprehended the facts, the matter should not be referred back to the High Court for retrial as there was sufficient material upon which a decision could be made. We were referred to the cases of Sikota Wina and another v The People (1996) ZR, Nachitumbi and another v The People (1975) ZR 285 and Aggie Zimba v The People Appeal No 243/2020 in support of their argument. Counsel rehashed the arguments in the heads of argument by way of emphasis. 10.2 For the Respondent, Mr. Lilanda also largely regurgitated his written arguments. He submitted that the issue for determination of this court was whether there were any sums due to the Appellant from the three engagements. 11.0 DECISION OF THE COURT 11.1 We have carefully considered the arguments by both sides, the record of appeal and the judgment of the Court below. We note J34 that most of the grounds of appeal are interlinked. To avoid repetition we will address grounds 1, 2, 3 and 4 of the appeal together with grounds 1, 2, 3 and 5 of the cross appeal. 11. 2 Perusal of the record of appeal reveals that the Court below dismissed most of the Appellant's claims. The trial Judge found that the Appellant had performed the third assignment relating to the tax health check and tax governance review but due to the ambiguity in the terms for payment in the letter of engagement, she referred the matter for the fees to be assessed on quantum meruit basis. She also found that the Respondent had breached the contract by failing to supply information. 11.3 The trial Court also dismissed the Respondent's counter claim on the ground that there was no overpayment on invoice No 235 as the Appellant correctly based his fee on the sum of 100 960 329.78 which was known by ZRA and not K79 282 989.00 . 11. 4 In this appeal, this Court needs to determine whether on the evidence before her the trial Judge was entitled to make th e findings that she did. J35 11.5 As stated in the background above, the Appellant was engaged to carry out three assignment by the Respondent between 2016 and 2017. In the first assignment, the Appellant was engaged to negotiate and facilitate tax liability waivers on the ZRA tax audit findings. The letter of engagement is at page 246 of the Record of Appeal. 11.6 We note that the amount of the tax liability was not indicated in the letter of engagement. However, by letter dated 7 th March 2016 (at page 261 of the record) ZRA informed the Respondent that the total tax liability stood at K79 282 989. 00 after being revised downwards from K99 , 178 954.00. The amount of tax liability on the assessment, therefore , according to ZRA and the Respondent at the time the Appellant was engaged was K79 282 989.00 . 11. 7 The Appellant performed the assignment satisfactorily and managed to get ZRA to waive interest and penalties resulting in the tax liabilities being reduced to K8, 838, 826 .00 which the Respondent paid. The Respondent also paid the Appellant K3 909, 007 . 15 as its fees for the 1s t assignment. J36 11.8 The Appellant was engaged on the second assignment by the Respondent by letter dated 16th August 2016 at page 692 of the record to resolve the tax arrears owed by the Post Newspaper Limited by convincing ZRA to set aside the penalty and interest. The Appellant performed the assignment and succeeded in having the issue resolved. 11.9 Following the successful completion of the second assignment, the Appellant sought payment of its fees by presenting Tax invoice No 235 (page 723) in the sum ofK2, 351,521.84. In the said invoice, the Appellant also included a claim for Kl 488 390.00 for the conclusion of the integrated tax audit under the first assignment. The Appellant paid this amount as well. 11.10 According to the Appellant, the additional amount was lawfully due after the realization that amount of liability under the first assignment has been understated due to a casting error. The correct amount should have been Kl00, 960, 329.70 11.11 The Respondent was of the view that the additional payment amounted to an over payment as the Appellant had been paid fully in accordance with the terms of the agreement in the first assignment at 5% of the total savings of K67 256 675.00. J37 11. 12 The trial Court found at page J 102 that the assessment base amount was KlOO 646,794.00 which was acknowledged by the Respondent in its defence. She referred to paragraph 8 of the defence where the Respondent confirmed that at the time of engagement on 10th February 2017 the tax services included in the demand notice issued by ZRA on 29th February 2016, with a total of KlOO, 646, 794.43 in taxes. 11.13 We note that both parties have submitted that the learned trial Judge misapprehended the facts when she referred to the demand notice and the assessment as one and the same thing. We agree with the parties that indeed the trial Judge was laboring under a misapprehension of facts when she ref erred to the demand notice liability of KlOO 646 794.00 in relation to the 1s t assignment. 11. 14 This misapprehension of facts led to wrong conclusions and findings. The Learned trial judge made a finding that the Appellant was paid in September 2016 for closing the demand notice which was not supported by the evidence. We therefore find that there is merit in the Appellants 1st ground of appeal. J38 11.15 Having agreed that the learned trial judge misapprehended the facts and made perverse findings, we have to consider on the evidence adduced whether the Appellant was entitled to the reliefs sought. Our view is that under the first assignment, the amount of liability that was assessed by ZRA was K79 282 989.00 and not Kl00 960 392.78 as claimed by the Appellant. This is borne out by the letter dated 7 th March 2016 (which was written in response to a letter from the Respondent dated 25th January 2016) that the tax liability stood at K79, 282 989.00. We note that the above correspondence suggests that the issue was being negotiated before the Appellant was engaged on 14th March 2016. As at that date, the Respondent through its own efforts had managed to have the tax liability adjusted from K99 178 954 to K79 282 989. 11.16 In view of the above, we do not accept the Appellant's argument that it was entitled to adjust the liability sum upwards to Kl00 960 329.78 due to a casting error to its clients detriment. We note that in fact the Appellant did not even notify ZRA of the purported error and negotiated the waiver on the basis of K79 282 989 .00. In any event the letter from ZRA dated 8 th J39 September 2016 showed that the reverse VAT that the Appellant claimed had been excluded was actually part of the K79 282 989.00. In other words, the Appellant cannot claim to have made a tax saving which ZRA did not acknowledge as owing. 11. 16 The learned trial Judge at page J 103 dismissed the Respondent's counterclaim on the ground that ZRA by letter dated 26th June 2017 acknowledged that the overall unreconciled tax liabilities in the D emand Notice stood at K 1 00, 646, 794.43. Clearly this was a misdirection by the trial court as the first assignment had nothing to do with the Demand Notice and the amount in issue was Kl00, 960 329.70. We find that the findings of the Court below in that regard were perverse and as decided in the case of Attorney General v Marcus Achiume34 , we can interfere with them. 11.17 In view of the foregoing, we find that the Appellant was overpaid when he demanded additional payment under invoice no 235 and the Respondent is entitled to a refund of the full amount paid of Kl,813,715.41. The 1st ground of the cross appeal has merit and is allowed. J40 11.18 Regarding the third assignment, the Appellant's position was that it was tasked to close off the demand notice from ZRA dated 29th February 2016, conduct an integrated tax health check and develop tax planning strategies (see page 332 of the Record of Appeal) which it fulfilled. It was argued that the trial Judge misapprehended the facts and found that the said demand notice had been fully settled on 27th October 2016. The Respondent agreed that the above finding of the court below was erroneous. 11 .20 We have perused the judgment of the Court below and are inclined to agree that the misapprehension of the facts led to wrong conclusions and perverse findings . We note that at the time the Appellant was engaged to undertake the 3 rd assignment on 16th January 2017, the demand notice of 2016 could not have been fully settled as it was one of things it was tasked to resolve. We agree that the Court below erred in making a finding that was not supported by evidence. We accept that the trial Judge did not fully address her mind to all the evidence that was before her before she dismissed the Appellant's claim for K2 , 849 , 627.30 . J41 11.21 The issue however, does not end there as the Respondent has argued that despite the errors in the findings of the Court below, the Appellant was not entitled to the payment as it did not make a tax liability saving of K52 202 224.30 under the demand notice. 11.22 The Respondent also argued that PWl was an unreliable witness as he gave inconsistent evidence in that he initially stated that K52 202 224.30 in tax liability was waived through his efforts upon being engaged by the Respondent. But during cross examination, he admitted that the figure was less than K52 202 224.30 when he was engaged (see pages 1300 and 1301 of the record). In cross examination at page 1335 of the record the Appellant's witness suggested that it was not restricted to act on the balance of the demand notice and expected to be paid for closing the demand notice irrespective of the efforts made by the Respondents previously. 11.23 In the arguments in reply, the Appellant did not address the issue of the inconsistent evidence by the Appellant's first witness but maintained that the admission could have been in reference to movement in the tax liability amount which did J42 not change the mandate to close off the demand notice. The Appellant supported the findings of the trial Judge that ZRA confirmed by letter dated 26th June 2017 that the liabilities and penalties in the demand notice amounted K52, 202, 224.30 and had not been revised downwards. 11.24 We note that the letter of 26th June 2016 was authored by the Appellant's witness PW2. As stated above the credibility of PW2 was in issue as he was closely associated to the Appellant having been initially on the Appellants team of officers expected to work on the assignment. In our view the weight to be attached to his evidence and letter should have been very low as his credibility was questionable. 11 .25 Having been so closely associated with the Appellant on the assignment, he should not have authored the letter dated 26th June 2017 to avoid actual or perceived conflict of interest. The feeble submission by Counsel for the Appellant that PW2 was not in the employee of ZRA at the time his name was put forward as a member of the Appellant's team amounts to evidence from the bar and does not assist the Appellant. Even if it were true that he joined ZRA after the assignment and did J43 not participate in it, h e ought to have declared interest in the issue. 11.26 In view of the above , we are of the view the learned trial Judge erred when she relied on the letter authored by a biased witness as proof that the Appellant had successfully achieved the setting aside of liability under the demand notice in the sum of K52 202 224.30. 11.27 We find the argument by the Respondent that the letter dated 26th June 201 7 was not authentic rather bizarre in view of the fact it was authored by PW2 who appeared as a witness. The argument really should have been that the letter was not reliable as it was authored by an interested party. We find no merit in the 3 rd ground in the cross appeal. 11.28 We must hasten to add that despite the finding at page J91 of the judgment, the Court below went ahead and dismissed the claim for K2, 694 078.08 because the demand notice wa s settled on 27th October 2016. This shows that the trial Judge gave conflicting findings on the same issue. The Appellant in our view cannot therefore place reliance on one contradictory finding and reject the other. J44 11. 29 The Respondent on the other hand relied on the letter from ZRA dated 8 th September 201 7 which stated that the outstanding sums on the demand notice as at 27th September 2016 stood at K329, 993.02 for penalties and K34 981.82 in interest. The net effect of this is that there were two conflicting positions from ZRA on the amount of tax liability on the demand notice at the time the Appellant was engaged on the third assignment. Due to credibility issues surrounding the letter dated 26th June 201 7, we are inclined to accept the position in the subsequent letter which was authored by the Acting deputy commissioner domestic taxes who was an independent party. We accordingly hold that the Appellant did not discharge the burden of proof that it had facilitated the waiver of K52 202 224 in tax liability and was therefore entitled to payment of the sum of K2 694 078.07. The second ground of appeal therefore fails. 11.30 However, we do note that there was undisputed evidence in the Court below that the Appellant did succeed in closing off the demand notice. The Appellant is therefore entitled to his fees for successfully causing the amounts of K329 993.02 and K34 J45 981.82 to be waived by ZRA. We accordingly refer th e matter to the honourable Registrar for assessment of the amounts to be paid to the Appellant in relation to the above on the basis of clause 4 of the terms of engagement. 11.31 The trial Judge ordered that the claims by the Appellant for K609, 759.52 for undertaking the integrated tax health and K 449, 011. 36 for the tax governance report be paid on a quantum meruit basis. The Appellant protested the order on the ground that the clause of payment of fees was ambiguous and that the liquidated claims were not proved. The Appellant's position was that the billing terms were clear and the Court should have enforced them. The Respondent on the other hand held the view that quantum meruit was not pleaded and should not have been awarded. 11 .32 We have perused clause 4 of the engagement letter for the third assignment which we have reproduced below: "FEES AND BILLINGS Our charges are computed on the basis of fees for the time spent on the affairs of the Bank, which depend on the levels of skill and responsibility involved and out of pocket expenses incurred in connection with the assignment. VAT and WHT will be added at the J46 current rates of 16% and 15% respectfully. In this instance, we have agreed a fee as follows: Administrative Base Fee Tax Health Check - Value Added Tax Tax withholding Tax Health Check Tax Health Check - Pay As You Earn Tax Health Check - Company Income Tax Tax closure of Demand Notice Reconciliation and Drafting of Comprehensive Integrated Self - Disclosure Report to the Commissioner General the Zambia Revenu e Authority of 3 ,500 12,500 9,500 9,500 9,500 5 ,500 5,500 basis Engagement of the ZRA on a self-disclosure to negotiate waivers of Penalties and interest arising from our findings and reconciliations arising the demand notice • Savings of at least 50% - 2 % of tax saved; • Savings of at least 80% - 3 % of tax saved; • Savings above 80% - 4 % of tax saved. Tax planning fees based on potential tax savings for at least one year's operations. 1.5% of estimated potential exposure on items selected for tax planning purposes based on actual figures for 2016 11.33 As can b e seen from th e ab ove ta ble, there wer e sp ecific fees for the tax health ch eck, closure of th e dem and n otice and drafting of a compreh ensive integr ated self-dis closure r eport. The fees for n egotiation of waivers of p en alties and interest arising from the self-disclosure were to be calculated on the basis of a percentage of the amount of savings. 11.34 To the extent that the amounts of K609, 759.52 and K449, 011.36 do not align with the fees provided for in the table above and the reference to the billing based on the time spent, we cannot fault the trial Judge for coming to the conclusion that there was a lack of clarity on how the Appellant arrived at those figures. We are inclined to agree that clause 4 as couched is ambiguous. The argument by the Appellant that the part of clause 4 that refers to billing based on time being a chapeau does not assist it. The chapeau ordinarily should not contradict the substance below it. We find no basis for interfering with the findings of the Court below in that regard. 11. 35 The Respondent contends that because the Appellant did not plead quantum meruit the Court was precluded from gr anting that relief. However, the Respondent does not dispute that the Appellant performed the work under the third assignment. The issue of remuneration for work done has not been addressed at all by the Respondent. J48 11.36 According to Black's Law Dictionary, quantum meruit 1s defined as" "The reasonable value of services; damages awarded in an amount considered reasonable to compensate a person who has rendered services in a quasi - contractual relationship" According to the learned authors ofHalsbury's law of England, Vol 8 quantum meruit is an equitable remedy where damages are awarded in an amount considered reasonable to compensate a person who has provided a service in a quasi contractual relationship. This definition applies to a situation where the fee for the service is not agreed. Ideally the claim for quantum meruit should be specifically pleaded. However in the case of D. P Services v Municipality of Kabwe35 it was held that "Alt hough the words quant um meruit have not been used in the p leadings, this in no way debars a p a rty f rom being entitled to such a claim." 11. 37 In the case Fruit and Veg City Holdings (pty) Limited v Martin Simumba36, we allowed a claim for payment for work J49 done on quantum meruit basis after finding that the Respondent had done work at the request of the Appellant and needed to be paid for it. 11 .38 In view of the foregoing authorities, the Respondent's submission that an order for quantum meruit can only be granted if it was specifically pleaded is incorrect. We therefore uphold the award of the court below that the fees relating to the tax health check report as well as the tax governance report be referred for assessment on quantum meruit basis. Grounds 3 and 4 of the appeal together with ground 5 of the cross appeal the ref ore fail. 11.39 The Court below dismissed the Appellant's claim for damages in lieu of termination in the sum of K 4 500 000. 00. According to the Appellant, this is the amount it would have earned had it been allowed to engage ZRA for a waiver of penalties and interest on self - disclosure basis. The Appellant contended that according to the tax health check report it prepared, the total penalties and interest estimate amounted to K120 458 , 382.85. The Appellant maintained that the above amount was guaranteed to be waived based on the tax amnesty it secured. JSO 11.40 The Respondent on the other hand contended the payment was to be triggered by the successful conclusion of the assignment. It was submitted that since there was no dispute that the Appellant had not completed the third assignment there was no basis for paying anything under the contract. 11.41 Whilst the Appellant acknowledged that the assignment was not completed, its argument was that the failure was caused by the Respondent who refused to supply information as agreed. We have perused the record of appeal and agree that the failure by the Appellant to conclude the assignment was directly caused by the Respondent who made it impossible by refusing to supply the required information or make payment of its principle liability to trigger the waiver or negotiation thereof. 11.42 We, however, hold the view that the Appellant cannot base his claim for damages on the waiver of interest and penalties which had not happened and was therefore speculative. We say so because no evidence was adduced to prove that ZRA had agreed in principle to waive the penalties and interest. JSl 11.43 We do not accept the Respondent's argument that the Appellant was not entitled to payment because the assignment was not concluded. The Appellant did actually perform the contract albeit not fully and is entitled to be paid for his work relating to the work done on the compiling the tax liabilities for self- disclosure. 11 . 44 What is not clear is the formula for calculating the value of the work done . Clause 4 of the letter of engagement in our view would only be applicable if the tax saved was known and not speculative as in this case. In order to prevent the Respondent from being unjustly enriched by the Appellant's work, we refer this matter for assessment by the Honourable Registrar for the value of the work done by the Appellant in that regard. 11.45 The Appellant in its pleading claimed payment of K4 500,000.00 as damages in lieu of termination. The claim was rejected by the Court below on the ground that the basis for the specific claim for K 4 500,000.00 in damages was unclear in the absence of agreement that such damages would be payable on termination. J52 11. 46 We have noted that no eviden ce was adduced to show that the Respondent had breached the agreement. In any event the engagement letter did not contain a provision on termination. The statement of claim included the following statement: "A sum of K4 500 000. 00 as damages in lieu of termination from the last phase of the contracted services or negotiation for waiver of penalties and interest with the Zambia Revenue Authority" 11. 4 7 The above claim is unintelligible as you cannot claim damages in lieu of termination. In any event no evidence was adduced to show how th e specific damages were compu ted. In the case of Lloyds Financials Limited v Bisonite Limited Plc37it was held that in a situation where a party is seeking damages from another he must prove them. In the present case the Appellant did not prove the damages in the court below. This ground of appeal therefore fails. 11. 48 In ground 5 the Appellant assailed the trial Court's failure to state the contractual interest due when it dismissed the claim for K39 022.50 being interest on the overdu e invoice No.247. Whilst the letters of engagem en t provide for charging of interest on overdue amounts, it did not specify the rate of interest JS3 applicable. The burden of proof lay on the Appellant to prove that interest in the sum of K39, 922.50 was due on invoice No 24 7 by adducing evidence to show how that figure was arrived at. The Appellant as the author of the engagement letter ought to have provided for the rate of interest applicable and cannot shift that duty to the Court. This ground lacks merit and fails. 11.49 In the 4 th ground of the cross appeal, the Respondent has challenged the lower court's award of costs to the Appellant despite its claims as set out in the statement of claim having failed. The Respondent acknowledged that costs were at the discretion of the Court but maintained that the Appellant had not succeeded in any of its claims. We find the reasoning of the Respondent to be flawed in that the Appellant did succeed on its claim for payment of the fees for work done on the tax health check report and the tax governance report. 11.50 The Court below merely ordered that the amount due be paid on quantum meruit basis. The Appellant therefore was the successful party and we cannot fault the learned trial Judge for awarding costs to it. This ground is devoid of merit and is dismissed. JS4 12.0 CONCLUSION 12. 1 Both appeals are partially successful. We set aside the judgment of the court below and make the following orders: 12. 1. 1 The fee payable for work done under the third assignment is referred to the Honourable Registrar for assessment on quantum meruit basis. 12. 1 .2 The Appellant is ordered to pay the Respondent the sum of Kl 813 715.41 being the amount overpaid. 12.2 The sums awarded shall constitute the judgment debt and shall attract interest at the short term bank deposit rate from date of writ and counter claim to the date of judgment and thereafter at the current lending rate as determined by Bank of Zambia until full payment. J55 12.3 Both parties having been partially successful, we therefore order that each party bears its own costs. M. M. KONDOLO S. C. COURT OF APPEAL JUDGE B. M. AJULA ----------~~----------- Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE