SCZ Judgment No. 14 of 2014
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IN THE SUPREME COURT OF ZAMBIA Appeal No. 103/2010
HOLDEN AT LUSAKA SCZ/8/96/2010
(CIVIL JURISDICTION)
BETWEEN:
INTER MARKET BANKING CORPORATION APPELLANT
(ZAMBIA) LIMITED
AND
GRAINCOM INVESTMENTS LIMITED RESPONDENT
Coram: Sakala, Chibesakunda, and Phiri, JJS
On 2nd November, 2011 and 18th March, 2014
For the Appellant: Mr. N. Makayi
Of Messrs CRC & Co.
Messrs Tembo Ngulube & Associates)
For the Respondent: Mr. F. Mutale
Of Messrs Lisimba & Co.
Phiri, JS, delivered the Judgment of the Court
Cases referred to:
1. Jefford and Another vs. Gee (1970) 1 ALL ER 1202
2. Victoria Laundry vs. Enoch Percy Kavindele, Appeal No. 98 of 1995.
3. Philip Mhango vs. Dorothy Ngulube and Others (1983) ZR 61 at 66.
4. Attorney-General vs. D. G. Mpundu (1984) ZR 6 at page 12
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5. Hayward and Another vs. Pullinger and Partners Limited (1950) 1 ALL ER 581 to 582.
6. Chaplin vs. Hicks (1911) 2 KB 786 (CA).
7. Eastern Cooperative Union Ltd. vs. Yamene Transport Ltd. (1988/1989) ZR 126 at page 128
When we heard this appeal we sat with the Hon. Mr. Justice E. L. Sakala, Chief Justice (as he then was), Mr. Justice E. L. Sakala has since retired. This judgment is therefore a majority decision.
This is an appeal against the decision of the Deputy Registrar on assessment of damages following the settlement, by the parties, by a Consent Judgment dated 25th June, 2008.
The brief history of this case is that the Respondent (who was the plaintiff in the Court below) launched an action against the Appellant (the defendant) arising out of the defendant’s seizure of the plaintiff’s Account which had a credit balance of K49,105,561.10. The Account was seized for a period of 18 months and seven days. The Respondent’s claim was for the following:
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a) Damages for wrongful seizure of the plaintiff’s money and closure of Account.
b) Damages for loss of business;
c) Refund of a sum of K49,105,561.10 being money wrongfully seized from the plaintiff’s Account;
d) Interest; and
e) Costs.
By consent Judgment, the Appellant admitted that the Respondent was deprived of the use of its monies in the sum of K49,105,561.10 for a period of 18 months.
Pursuant to the consent Judgment, the Appellant paid to the Respondent the sum of K66,613,304.11, broken down as follows:
(i) K49,613,308.11 as refund of money seized by the Appellant.
(ii) K15,000,000.00 as costs; and
(iii) K 2,507,747.01 as accrued interest from the date of commencement of the action to the date the seized money was returned; being 10th May, 2007 to 21st July, 2008.
Pursuant to the same consent Judgment, the parties agreed to refer the other claims for damages to the Deputy Registrar, for
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assessment. At the assessment, the Respondent was awarded the following damages:
1. The sum of K201,606,104.54 for loss of use of the seized monies.
2. K30,942,780.00 for loss of profit.
3. K908,000.00 for refund of Bank charges.
4. Interest at short term deposit rate from the date of the Writ to the date of Judgment and thereafter, at current average Bank rate from the date of Judgment to the date of full payment and costs.
Dissatisfied with the afore-mentioned awards, the Appellant has appealed to this Court; advancing four (4) grounds of appeal as follows:
1. The Honourable Deputy Registrar erred in both law and fact, by awarding the Respondent damages in the sum of K201,606,104.54 for loss of use of seized money by entirely and exclusively relying on the average net credit and debit balance entries in the Respondent’s Bank Statement of Account. This award was made in the absence of relevant and satisfactory evidence to prove a loss of this nature in the circumstances of this case.
2. The Honourable Deputy Registrar erred in both law and fact, by awarding the Respondent damages for loss of business in the sum of K30,942,780.00, by entirely and exclusively relying
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on the deposits made in the Respondent’s Bank Account over a period of seven months. This award was made in the absence of relevant and satisfactory evidence to prove a loss of this nature in the circumstances of this case.
3. In the alternative to ground 2 above, the Honourable Deputy Registrar, in awarding damages for loss of business, erred in law by failing to appreciate and understand that the claim for loss of business was not specially pleaded as to be assessed in view of the Consent Judgment dated 24th June, 2008.
4. The Honourable Deputy Registrar erred in law, by awarding the Respondent the sum of K908,000.00 as refund of Bank charges, which claim was totally new and was not specially pleaded for purposes of assessment as agreed by the parties vide the Consent Judgment dated 24th June, 2008.
In support of the appeal, Learned Counsel relied on the Appellant’s heads of arguments. In ground 1, it was contended that the damages for loss of use of seized monies in the sum of K201,606,104.54, was awarded in consequence of the misapplication of law and a misunderstanding of evidence required to prove general damages on one hand and special damages on the other. It was further argued that since the Appellant did not dispute depriving the Respondent’s use of its money in the sum of K49,105,561.10 for a period of 18 months, what the Deputy
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Registrar should have determined was the nature of the compensation to the plaintiff; and that the payment of interest from 10th May, 2007, to the date of refund of the money; namely, 21st July, 2008 was sufficient compensation.
In support of this argument, Learned Counsel cited the English case of Jefford and Another vs. Gee(1) where Lord Denning made the following statement:
“Interest should not be awarded as compensation for the damage done. It should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him”.
Learned Counsel also cited the Zambian unreported case of Victoria Laundry vs. Enoch Percy Kavindele(2) in which this Court held as follows:
“The rules of remoteness as formulated in the leading cases preclude recovery of special damages or losses which could not have been within the contemplation of the parties or which cannot have been reasonably foreseeable at the time of entering into the transaction. Conversely, while interest is the normal compensation for failure to pay money by due date, the award for damages cannot be ruled out completely if the loss suffered was within the contemplation of the parties”.
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It was Learned Counsel’s contention that from the time the Respondent Company was seized or closed, the Respondent could not have been making debits and credits and therefore, loss of business could not have been incurred and that if any loss was incurred, such loss became special damage as it was not in the contemplation of the parties.
It was further argued that special damages need to be specifically pleaded and proved; which was not the case in this matter where the Deputy Registrar awarded a sum of K201,606,104.54 for loss of use of seized money without evidence being led to prove this special damage. In conclusion on ground 1, Learned Counsel argued that the awarding of the damages for the loss in this case, was both for general damages and special damages and, as such, the award resulted in duplication of damages, which in the circumstances, resulted into unjust enrichment of the Respondent.
In ground 2, the Appellant attacks the award of K30,942,780.00 as damages for loss of business on the basis of deposits made to the
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Respondent’s Bank Account over a period of seven months in which an audit was conducted without relevant and satisfactory evidence to prove such a loss.
It was contended that the Deputy Registrar solely relied on the evidence of Mumbwali Simuzimbili (PW2) who audited the Respondent’s books over a period of seven months over which he found that the Respondent’s turnover was K355,000,000.00, and arrived at the average of K55,000,000.00 per month which was multiplied by 18 months from which a net profit was found to be K5,177,130.00 per month after deducting expenses and tax incidentals.
The Appellant’s argument here is that the Deputy Registrar should have properly ascertained the Respondent’s net profit on the basis of the actual evidence available instead of adopting the average earnings per month. The Appellant’s contention is that the formula used by PW2 at arriving at the monthly profits and which was wholesomely adopted by the Deputy Registrar, was in consequence of a total miscomprehension of facts and misapplication of law
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relating to award of special damages. More so, that the Respondent’s financial statement for the year ended 31st March, 2007 (page 78 line 12 of the Record of Appeal) shows that between 1st April, 2006 and 31st March, 2007, the Respondent had made a net profit of K34,812,657.00. This meant that the average monthly profits on dividing the annual profits by twelve months was K2,091,054.75. Therefore, there was no need for the Deputy Registrar to use the annual gross turnover of K355,000,000.00 when the financial statement itself showed that the Respondent was making an average monthly profit of K2,901,054.75.
Secondly, it was further argued that the Respondent’s business inevitably meant that by the time of the closure of the Account, the money it had to invest in business in order to make profit was K49,105,561.10. The Respondent was not able to conduct business as a result of the seizure; this automatically led to loss of profits. However, the Respondent’s business was not completely crippled. It continued to carry on business as it had maize stocks in its stores. This is confirmed by PW1 at page 147 of the Record of
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Appeal. There was a loss on the Respondent’s business however, because it did not have money to meet various orders. There was need for proof of those orders.
However, during the assessment, PW1 failed to produce the Respondent’s orders which, it was claimed, could not be met because of the seized money; as they were unable to purchase and resale, and make profits. It was the Appellant’s contention that failure by the Respondent to produce evidence of failed orders should have reacted against the Respondent. In support of this argument, Learned Counsel cited the case of Philip Mhango vs. Dorothy Ngulube and Others(3)
In that case, Chief Justice Silungwe (as he then was) outlined the law relating to proof of special damages as follows:
“It is, of course, for any party claiming a special loss to prove that loss to do so with evidence which makes it possible for the Court to determine the value of that loss with a fair amount of certainty. As a general rule, therefore, any shortcomings in the proof of a special loss should react against the claimant. However, we are aware that in order to do justice, notwithstanding the indifference and laxity of most litigants, the Courts have
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frequently been driven into making intelligent and inspired guesses as to the value of special losses on meager evidence. In this case, it would have been easiest thing to call an expert witness, but the first plaintiff chose not to do so. The result is that the evidence presented to the Court was unsatisfactory, and, in our opinion, the Learned trial Judge would have been entitled either to refuse to make any award or to award a much smaller sum, if not a token amount in order to remind litigants that it is not part of the Judge’s duty to establish for them what their loss is”.
Ground 3 was argued in alternative to Ground 2. The argument is that the Deputy Registrar in awarding damages for loss of business, failed to appreciate and understand that the loss of business was not specifically pleaded as to be assessed in view of the Consent Judgment dated 24th June, 2008.
In support of this contention, Learned Counsel for the Appellant cited the case of Attorney-General vs. D. G. Mpundu(4) which also considered the effect of not appealing against a Ruling of the Deputy Registrar on a preliminary objection on assessment. In this case this Court stated as follows:
“It follows from what we have said above that the Deputy Registrar erred in overruling the Appellant’s preliminary objection but only to the extent that the Respondent was allowed to lead evidence to prove special damages which
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had not been specifically pleaded in the Statement of Claim”.
In the present case, the claim for damages for loss of business was not outlined in the paragraphs of the main body of the Statement of Claim, but only in the prayer. The question therefore is whether this claim for loss of business was specifically pleaded as to entitle the Deputy Registrar to let in evidence of such loss. In the Attorney-General vs. D. G. Mpundu case(4), this Court recast the law as follows:
“It is thus trite law that, if a plaintiff has suffered damage of a kind which is not necessary and immediate consequence of a wrongful act, he must warn the defendant in the pleadings that the compensation claimed would extend to this damage, thereby showing the defendant the case he has to meet and assisting him in computing a payment into Court. The obligation to particularize his claim arises not so much because the nature of the loss is necessarily unusual but because a plaintiff who had the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”.
It is the Appellant’s contention that the Deputy Registrar misdirected himself in law by letting in evidence of loss of business
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when same was not specifically pleaded and particularized as envisaged by law and the Consent Judgment.
In further support of this proposition, Learned Counsel cited the English case of Hayward and Another vs. Pullinger and Partners Limited(5) which outlined the law as follows:
“The Pleading alleges the contract and breach. It does not contain any paragraph specifically alleging damages, but in the prayer there is a claim for damage for wrongful dismissal. It is conceded by Counsel for the plaintiffs, and I think rightly, that he cannot recover in respect of any special damage unless that special damage is pleaded……..
It is of course, when damage is alleged in general terms, for an application to be made to obtain particulars of the special damage, if any, relied on, but there can be no obligation to ask for such particulars and I think the true position is that, unless they are contained in the Statement of Claim, evidence leading to damage in respect of which damages are claimed cannot technically be relied on at the trial”.
It was the Appellant’s view that the Respondent’s claim for loss of business, having not been specifically pleaded and particularized in the Statement of Claim, the Deputy Registrar faulted in letting in evidence to prove the loss of business.
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The Appellant’s argument in support of Ground 4 was related to the argument in Ground 3. This is that, the Deputy Registrar erred in law by awarding the Respondent the sum of K908,000.00 as refund of Bank charges, which claim was totally new and was not specifically pleaded for purposes of assessment as agreed by the parties in their Consent Judgment; that the refund of the Bank charges was not mentioned in the Statement of Claim and in the Consent Judgment.
Further, none of the Respondent’s witnesses led evidence at assessment, to the effect that the Appellant had wrongfully deducted Bank charges from its Bank Account. It was therefore the Appellant’s contention that this award should not have been made.
In opposing this appeal, Learned Counsel for the Respondent also relied on the arguments in the Respondent’s Heads of Argument. In response to Ground 1, it was submitted that the Deputy Registrar was on firm ground when he awarded the Respondent damages in the sum of K201,606,104.54 for loss of use of seized monies; that the Appellant’s argument that the award was made in the absence
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of relevant and satisfactory evidence to prove the loss, was vague because no such evidence is disclosed. It was stated that the Deputy Registrar relied on the Bank Statement which clearly shows inflows and outflows of money in the Respondent’s Bank Account; and the Deputy registrar did not err when he took into consideration the net month end balances for seven (7) months to arrive at a monthly average on the basis of figures reflected on the Bank Statement. That the Deputy Registrar did the best he could by taking into consideration the net monthly balances on the Bank Statement because the Respondent’s loss cannot be proved with certainty as it arose from the denial of use of the funds which were presumed to be used by the Bank when it was unnecessarily withheld.
In support of this argument, the Respondent cites the English case of Chaplin vs. Hicks(6) where it was held that the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.
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On Ground 2, it is the Respondent’s contention that the Deputy Registrar was on firm ground when he awarded K30,942,780.00 damages for loss of profits; that this award was based on the evidence of PW2, Mumbwali Simuzimbili, which was not challenged; and the Appellant never brought to the attention of the Court any relevant and satisfactory evidence to prove otherwise. It was stated that PW2 prepared the Respondent’s accounts and financial statement and arrived at the net profit after all the expenses that go with business, including tax obligations were deducted from the monthly income; the net profit was found to be K5,157,130.00 per month which the Deputy Registrar multiplied by six months (as opposed to 18 months). It was argued that the Appellants argument in support of Ground 2 was misplaced and a total misdirection.
On Ground 3, it is the Respondent’s contention that the Appellant had raised the same issue; namely, that the claim for loss of business was not specially pleaded, in a preliminary issue before the Deputy Registrar before the assessment and a ruling was
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delivered to the effect that the Respondent’s claims were general damages which did not require to be specially pleaded. There was no appeal against that ruling; and it was the Respondent’s argument that the Appellant cannot now raise the same issue, when they accepted the Deputy Registrar’s ruling by withdrawing their appeal.
On Ground 4, it is argued that only special damages like out of pocket expenses required specific pleading; and not general damages like refunding of Bank charges which did not require to be specially pleaded. It is further argued that the Deputy Registrar did correctly observe that there was a pleading on behalf of the Respondent, under the head of “any other relief” under which the refund of Bank charges was ordered and awarded. The reasoning of the Deputy Registrar was valid because an injustice was caused to the Respondent by the Appellant by unilaterally closing the Respondent’s account and seizing the money; to lend to other customers for profit over a period of 18 months.
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Learned Counsel for the Respondent urged us to dismiss this appeal for lack of merit on all four (4) grounds.
We have carefully examined the record of appeal and considered the grounds advanced, together with the arguments canvassed in the respective heads of Argument and the authorities cited. We have also considered the Ruling of the Learned Deputy Registrar appealed against.
We propose to deal with grounds 1 and 2 together as they are related. The main contention in these two grounds is that the Learned Deputy Registrar fell in error by awarding the sums of K201,606,104.54 and K30,942,780.00 respectively, as damages for loss of seized money and damages for loss of business, by entirely and exclusively relying on the average net credit and debit balance entries in the Respondent’s Bank Statement of Account and on the deposits made in the Respondent’s Bank Account over a period of seven months; in the absence of relevant and satisfactory evidence to prove those losses in the circumstances of this case.
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At page 8 (lines 3-5) of the Ruling appealed against (at page 11 of the Record of Appeal), the Learned Deputy Registrar states as follows:
“Therefore taking the credits and debits into consideration, the seven month-end net balances as per exhibits “JS3” (Statement of Account) totaled K235,207,122.00 and the average was thus calculated at K33,601,017.42.
……..It would follow therefore, that the loss of use of the money at monthly average of K33,601,017.42 would be multiplied by six months……. Therefore, the award under this head, loss of use of money is K201,606,104.54”.
With regard to the award of K30,942,780.00 as damages for loss of profit, the Learned Deputy Registrar states at pages 8 and 9 of the Record of Appeal:
“The second claim by the plaintiff was for loss of profit. This Court considered the method that the plaintiff used to arrive at the amount of K5,157,130.00 as average profit per month. The defendant did not have any opposition….
……This Court finds the average profit of K5,157,130.00 per month as reasonable and the method used to calculate the loss of profit was correct. The plaintiff is hereby awarded that amount as the average monthly profit…. The amount awarded therefore is K30,942,780.00”.
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It is apparent from the foregoing that the Learned Deputy Registrar only considered the oral evidence adduced by the plaintiff during the assessment and discounted the Respondent’s objections. This evidence was given by PW2, Mumbwali Simuzimbili, who prepared an audit of the Respondent’s Financial Statements which were admitted in Court as part of the affidavit evidence exchanged (exhibit “JS2”). This document is entitled GrainCom Investments Limited, Financial Statements, 31st March, 2007 (under Walis Chartered Accountants) (pages 75-86 of the Record of Appeal). In his Ruling at page R8 afore-quoted, the Learned Deputy Registrar makes no reference to the Respondent’s Financial Statements, but specifically refers to the “seven month-end net balances per exhibits “JS3” (Statement of Account)”. Exhibits collectively marked “JS3” appear on pages 33 to 45 of the record. These are handwritten receipts issued to a number of Cooperative Societies and a Young Farmers Club for the purchase of grain bags, seed maize and fertilizer. We find this approach to be curious and extraneous
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because those receipts on their own are irrelevant to the process of determining the average monthly net profit for a business.
The correct approach, in our view, should have been to refer to the Respondent’s Financial Statements of Account which were already before the Court as exhibit “JS2”. (Pages 75-86). This report clearly shows that the profit for the year ending 31st March, 2007, was K34,812,657.
We agree with Learned Counsel for the Appellant that had the Learned Deputy Registrar properly directed his mind to the evidence in the Respondent’s Financial Statements approved by the Respondent’s Board of Directors on the 24th July, 2008, he would have found that the Respondent’s annual profit for the year ending 31st March, 2007, was K34,812,657 and therefore that the average monthly net profit was not more than K2,901,054.75.
The monthly net profit factor permeates both Grounds 1 and 2 of the appeal in that the calculations approved by the Learned Deputy Registrar took into consideration the incorrect figure of
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K5,157,130.00 as the average profit per month. Inevitably, this was a misdirection because the available evidence did not support the findings of the Learned Deputy Registrar.
The other factor used by the Learned Deputy Registrar in arriving at the quantum of damages for loss of use of the money seized and loss of profit is the six months multiplier period as opposed to the entire period of 18 months that the Respondent’s Account was under embargo. The Respondent’s argument was that an injustice was caused to them by the Appellant unilaterally closing the account and seizing the money. We must state that this position is without contest. However, it is pertinent to observe that ‘redress’ must follow both the evidence and the rules; and should, in itself, not lead to unjust enrichment. This is the ratio of this Court’s decision in the case of Eastern Cooperative Union Ltd. vs. Yamene Transport Ltd.(7) which adopted what the Learned authors of Clerk and Lindsell on Torts, 13th edition, paragraph 337, as follows:
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“337. It has been pointed out that no one is answerable indefinitely for the consequences of his actions, but that at the time he may well be saddled with responsibility for greater injury than he expects. Somewhere a line has to be drawn between the consequences for which a wrongdoer is liable and those for which he is not…”.
The Learned Deputy Registrar made it clear in his Ruling, that he based his decision to limit the period of liability to six months as opposed to 18 months, one the afore-quoted authority. That is the correct approach to the issue of liability, and we approve of it. This approval, notwithstanding, does not alter the misdirection in the manner the quantum was calculated in the awards contested in Grounds 1 and 2.
We take cognizance that all the Respondent’s claims were pecuniary; and could easily be quantified based on evidence adduced. The Learned Deputy Registrar had a duty to receive and consider all the necessary evidence which would assist in making the assessment of what was due to the Respondents; this included the uncontested Financial Statements and the Respondent’s Bank Statement of Account. These Statements appear on pages 78 to 85 of the Record of Appeal under the Title “GrainCom Investments
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Limited, Financial Statements, 31st March, 2007”. At page 79 of the record is the approval of the Statements by the Board of Directors on 24th July, 2008. Failure by the Learned Deputy Registrar to consider these important documents that were readily available on the record and, instead, to place reliance on the oral evidence given by PW2 (Mumbwali Simuzimbili), was a serious misdirection that calls for our interference with the findings; on the ground that the awards were extraneous to the evidence and inordinately too high for a cause that was largely settled without trial. We see no need for us to deal with the other limbs of the arguments in support of Grounds 1 and 2 as they are peripheral. We find merit in these two grounds of appeal.
As already indicated, Ground 3 was argued in the alternative to Ground 2. The Ground attacks the award of damages for loss of business when such loss of business was not specially pleaded as to be assessed in view of the Consent Judgment. We have found merit in Ground 2 in so far as the manner the calculation of the quantum of damages was done. As for the argument that loss of
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business should have been specially pleaded, we do note that the circumstances of this case clearly indicate that the seized Account was a business Account and therefore, that loss of business was within the contemplation of the parties when the Account was seized and kept away from the Respondent’s access. We do not agree with the Appellant’s contention that loss of business should have been specially pleaded. However, we do note that during assessment the Respondent’s witness (PW2) testified that there was a loss on its business because it did not have money to meet various orders. No evidence was adduced to prove those orders. The Appellant’s contention is that failure by the Respondent to produce evidence of their failed orders should have reacted against the Respondent. We agree with the Appellant’s position. The Learned Deputy Registrar’s award should have shown consideration for the specific failed orders in order to ease up the assessment under this head. Without this consideration, there is no defining line between damages for loss of profit and damages for loss of business. We agree that the Learned Deputy Registrar’s approach
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in assessment under this head was unbalanced and tended to duplicate the award. The Appellant’s fear that those awards may result in unjust enrichment of the Respondent, was well based. In our view, the Respondent’s failure to provide proof of the failed orders should have resulted in a nominal award; divorced from being based on the monthly average net profit of K2,901,054.75. To this extent, we find partial merit in Ground 3.
Ground 4 attacks the award of the sum of K908,000.00 as refund of Bank charges. The argument is that this claim was totally new and had not been pleaded in both the Writ of Summons and in the Statement of Claim; and that it was outside the Consent Judgment. The Respondent’s argument is that refund of Bank charges did not require to be specially pleaded; and, in any event the Learned Deputy Registrar did correctly observe that there was a pleading on behalf of the Respondent, under the head of “any other relief” under which the refund of Bank charges was awarded.
While we agree with the Respondent’s contention that refund of Bank charges need not be specially pleaded in the circumstances of
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this case where, at the centre of the dispute is a Bank Account that was unilaterally seized and kept away from the owners, it was necessary that the award should be backed by evidence; particularly in the case where the entire seized money together with the accrued interest were returned to the Respondent by consent of the parties. We wonder where the Learned Deputy registrar obtained the figure of K908,000.00 both the Consent Judgment and the evidence before the Learned Deputy Registrar clearly establish that the Account, which held K49,105,561.10, was returned in full, to the Respondent together with costs and accrued interest. We hold that the award of K908,00.00 as refund of Bank charges was extraneous, unsupported by evidence and so hopelessly wrong that we must set it aside. We accordingly find merit in Ground 4.
As for interest, we note that the accrued interest on the sum of K49,105,561.10 was refunded together with the seized money, through head (iii) of the Consent Judgment, which reads as follows:
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“(iii). K2,507,747.01 as accrued interest from the date of commencement of the action to the date the seized money was returned; being 10th May, 2007 to 21st July, 2008”.
On the other hand, the Learned Deputy Registrar made the following order on interest:
“4. Interest at short term deposit rate from the date of the Writ to the date of Judgment and thereafter, at current average Bank rate from the date of Judgment to the date of full payment and costs”.
In view of the foregoing positions, we find it necessary to give further guidance in this case. This is that, the Learned Deputy Registrar should clearly discount the interest already agreed and settled by consent; so as to avoid penalizing the Appellant twice in interest; and that no interest should further be payable on interest already paid.
The net result is that this appeal has merit and we accordingly allow it. We order that this matter be sent back for reassessment before the Learned Deputy Registrar; taking into account the legal principles and guidelines to which we have referred. We will make
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no order for costs, as these were specifically dealt with in the Consent Judgment that preceded the assessment.
(RETIRED)
E. L. SAKALA
CHIEF JUSTICE
L. P. CHIBESAKUNDA
ACTING CHIEF JUSTICE
G. S. PHIRI
SUPREME COURT JUDGE
