Engen Petroleum Zambia Limited v PJP Associates Limited (Appeal No. 174 of 2023) (2 October 2024) – ZambiaLII

IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 174 of 2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ENGEN PETROLEUM ZAMBIA LIMITED APPELLANT AND PJP ASSOCIATES LIMITED RESPONDENT CORAM: SIAVWAPA JP, BANDA-BOBO & PATEL, JJA On 17th September & 2nd October 2024 For the Appellant: Mr. F. Mudenda Messrs. Chonta Musaila & Pindani Advocates & Mr. S. Chisenga Messrs. Corpus Legal Practitioners For the Respondent: Mr. L. Mwamba Messrs Mwamba & Milan Advocates & Mr. M. Nkunika & Mrs. Z. Sampa Messrs. Simeza Sangwa & Associates JUDGMENT Patel, JA, delivered the Judgment of the Court Cases referred to: 1. Diego Casili v Access Bank and others -CAZ Appeal No. 259 of 2022 2. The Minister of Home Affairs, Attorney General vs Lee Habasonda (2007) ZR 3. Sun Country Limited and others v Rodger Redin Savory and Another SCZ Appeal No. 122 of 2006 4. Kansanshi Mine Pie v Maini Joseph Mudimina & Others SCZ Appeal No. 149 of 5. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC) 6. Attorney General v Marcus Kampumba Achiume (1983) ZR 1 7. Nkhata and four others v The Attorney General (1966) ZR 124 8. Colgate Palmolive Zambia v Abel Shemu Chuka SCZ Appeal No. 181 of 2005 9. Khalid Mohamed v Attorney General (1982) Z.R. 49 (SC). 10. Corpus Legal Practitioners v Mwanandani Holdings Limited (2014) ZR Vol 3, 11. R.R. Sambo N.N. Sambo and Lusaka Urban District Council v Paikani Mwanza scz Appeal No. 16 of 2000 12. Brisk Fast Limited and Another v Wonder Fundiwa and Others- CAZ Appeal No. 142 of 2022 13. NFC Africa Mining Limited v Lofoyi Enterprises Limited, Appeal 27 of 2006 14. Jason Yumba and 22 others v Luanshya Municipal Council -SCZ Appeal No. 055/2015 15. Mandona Freeboy v Joshua Nkandu -SCZ Appeal No. 006/2017. J2 16. Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited (2011) ZR 67 17. Philip Mutantika & Mulyata v Kenneth Chipungu -SCZ Appeal No. 13 of 2014 18. Communications Authority of Zambia v Vodacom (2009) ZR 196 19. Mukaba v Association of Chartered Certified Accountants (ACCA) -CAZ Appeal No. 27/ 2020 20. Chilumba Gerald v ZESCO Limited -SCZ Appeal No. 106/ 2014 21. Zambia Telecommunications Company Limited v Aaron Mulwanda and Paul Ngandwe (2012) ZR Vol. 1, 404 22. Abel Hachaambwa and others v Cheelo Mweemba -SCZ Appeal No. 175/ 2016 23. Manda Hill Centre Limited v Freshview Cinemas Limited -CAZ Appeal No. 154/2019 24. Madison General Insurance Company Limited v African Banking Corporation Zambia Limited - CAZ Appeal No. 310/2021 25. Solomon Laban Jumbe Ngwenya & Others v Hope Chanda and Focus Financial Services Limited- CAZ Appeal No. 001/2021 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No.65 of 2016 2. The Court of Appeal Act No. 7 of 2016 3. The High Court Act Chapter 27 of the Laws of Zambia 4. The Rules of Supreme Court, 1965 (1999 Edition) (the White Book) 5. The High Court Rules Statutory Instrument No. 58 of 2020 J3 1.0 INTRODUCTION 1.1. This is an appeal against the Judgment of Musona E.L. J; delivered on 24th March 2023, in respect of an action commenced by the Respondent against the Appellant (the Plaintiff and the Defendant respectively in the lower court). 1.2. It is noteworthy that arising out of the said Judgment of the lower Court, the Appellant has appealed the Judgment and raised seven (7) grounds of appeal, while the Respondent has also raised a cross appeal on three grounds of appeal. 1.3. We note that the Appellant filed its heads of argument on 9th June 2023 which are in extent of 45 pages. The Respondent, in its composite arguments in opposition and arguments in support of its cross appeal filed its heads of th argument on 17 July 2023 in extent of 57 pages. The Appellant caused to be filed its composite heads of argument in reply and arguments in opposition to cross appeal on 8th September 2023 in extent of 25 pages and the Respondent filed its heads of arguments in reply to the cross appeal on 18th September 2023. 1.4. From the onset, we echo our displeasure, as we have in many recent pronouncements in our judgments at the unnecessary volume of the arguments presented and grounds of appeal canvassed by the Parties respectively. As we have noted, a lot of the arguments are a repetition and add little or no value to the substance of the issues before the Court. We have in previous decisions frowned upon the verbosity of arguments which also offends the provisions of Order X rule 9 (10) of the Rules of the Court 1 . A case J4 in point is that of Diego Casili v Access Bank and others 1 in which we issued guidelines and which we will enforce in arguments filed henceforth. We advise Counsel and litigants to take note of this direction of the Court. 1.5. The issues in the main appeal and the cross appeal before us are not new. The Judgment of the lower Court is assailed for not meeting the requisites of a judgment. We are also being asked to set aside findings of fact for want of evidence and for findings being perverse in the face of settled authorities in our jurisdiction. The Respondent too, by its cross appeal, has challenged essentially similar findings of the lower Court in its attempt to convince us that the same are perverse and ought to be set aside. 1.6. Also canvassed are the often cited principles relating to the burden of proof, the sanctity of contractual terms once agreed between the Parties with emphasis on the power of this Court under section 24 of the Court of Appeal Act 2 when hearing a civil appeal. Ultimately, we are also asked to consider the principles in the award of costs. 1.7. With reference to the quality and content of the Judgment, reliance is placed on noted authorities such as The Minister of Home Affairs, Attorney General vs Lee Habasonda 2 Sun Country Limited and others v Rodger Redin Savory and Another 3 and Kansanshi Mine Pie v Maini Joseph Mudamina & Others 4 . We are also referred to Order XXXVI rule 2A of the High Court Rules 3 . 1.8. In an attempt to persuade us to set aside the several assailed findings of the lower Court on account of them being either perverse or not supported by evidence or a dereliction of the duty of the trial Court, our attention is invited JS to principles so firmly settled and entrenched by case law that we will not necessarily make pronouncements of what those are. The authorities referred to are Wilson Masauso Zulu v Avondale Housing Project Limited 5 , Attorney General v Marcus Kampumba Achiume 6 Nkhata and Four Others , v The Attorney General 7 , Colgate Palmolive Zambia v Abel Shemu Chuka 8 and Khalid Mohamed v Attorney General 9 • 1.9. On the issue of the award of costs, our attention has been drawn to the decisions of the Superior Courts in the cases of Corpus Legal Practitioners v Mwanandani Holdings Limited10 , R.R Sambo N.N Sambo and Lusaka Urban District Council v Paikani Mwanza 11 as well as Order 62/2/12 of the Rules of Supreme Court 4 . 2.0 BACKGROUND 2.1 For the purpose of this section, the parties shall mainly be referred to as they are in this Court. However, and to prevent confusion due to the nature of the Parties being both Appellant and Respondent in the respective appeal and cross appeal, the term 0 Vivo Energyn or "Engenn shall refer to the Appellant, while the term 'Supplier' or 'PJP' shall refer to the Respondent. 2.2 The Parties had entered into an agreement for the supply of certain agreed specific services relating to engineering, procurement, construction and management services, referred to as the Master Services Agreement (MSA) H02/038 on 1st July 2019. A copy of the said MSA is seen at pages 350 to 403 of Volume 2 of the Record of Appeal (Record). J6 2.3 It is noted that the duration of the MSA was for a period of twenty-four months, which term could be extended by prior written agreement. Clause 2.2 of the MSA refers. 2.4 Clause 24(1) of the MSA provided a termination clause whereby the Appellant was at liberty to terminate the MSA upon giving 30 days written notice to the Respondent, such notice was given by the Appellant to the Respondent by its letter dated 10th June 2020. 2.5 The Respondent aggrieved by the termination, commenced proceedings by Writ in the Commercial Division of the High Court on 24th February 2021 making the following claims: i. Payment of the sums due from the Defendant as pleaded; ii. Special damages for loss of income as pleaded; iii. Damages for breach of contract; iv. Interest on the sum due; v. Any other relief the court shall deem fit; vi. Costs. 2.6 By its amended Statement of Claim filed on 26th February 2021, the Plaintiff in paragraph 13 gave particulars of services rendered and which were unpaid and in paragraph 15, following termination, for those services rendered though not invoiced respectively. J7 2.7 By paragraph 16, the Plaintiff, 11PJP" made an additional claim for the sum of K283,516.09 in respect of disbursements incurred before the subsistence of the MSA and anchored this claim on clause 26.7 of the MSA. 2.8 By paragraph 18, 'PJP' claimed loss and damage as a result of the pre-mature termination and gave particulars of the claimed loss and damage. 2.9 The Appellant filed its amended defence on 30th July 2021 which is noted at pages 38 to 44 of the Record. 3.0 DECISION OF THE LOWER COURT 3.1 The lower Court's judgment is seen at pages 9 to 23 of the Record. The learned Judge reviewed the case before him and considered the pleadings and evidence of the Parties. He analysed the evidence of two witnesses called by the Respondent, namely, Kasonde Katengo, a director and Allan Lungu, a business manager. The learned Judge also considered the evidence of the witness for the Appellant, one Chinyanta Kayombo in his capacity as supply and distribution manager. 3.2 The learned Judge arrived at the conclusion that there were two agreements between the parties, the first of which was an oral agreement and the second, written. The learned Judge appeared to have guided himself on the issues of burden of proof and considered the nature of the reliefs sought. 3.3 In a rather brief Judgment, the learned Judge considered the following reliefs: i. Payment of the sums due from the Defendant as pleaded J8 The learned Judge made a finding that under the oral contract, some works were executed and proved. For works done after the written contract, he found that "proof of works is there". He also found that the Defendant did not protest the continued work of the Plaintiff and found that the Defendant ought to pay for the actual works done and referred the quantum for assessment by the Registrar. ii. Special damages for breach of contract On this claim, the learned Judge found no merit. iii. Special damages for loss of income as pleaded Having ordered payment in (i) above, the learned Judge dismissed the claim for loss of income. iv. Interest on the sum due The lower Court awarded interest on the successful claim at short term bank deposit rate from the date of action to the date of Judgment and thereafter at the current Bank of Zambia lending rate, same to be assessed in default of agreement. The lower Court also awarded costs to the Plaintiff. J9 4.0 THE APPELLANT'S APPEAL 4.1 Dissatisfied with the outcome in the Court below, the Appellant filed a Notice and Memorandum of Appeal, on 12th April 2023, fronting seven (7) grounds of appeal, namely; 1. That the learned trial Judge in the Court below erred both in law and fact when he rendered or delivered a judgment which does not or did not meet the benchmark of a Judgment. 2. That the Court below erred both in law and fact at page J11 of the Judgment by finding or holding that there was no dispute that the Defendant (sic) executed the works save for a few without specifying which few works were not done, thereby abdicating its duty to adjudicate upon the issue in controversy between the parties as to which actual works were done or not done as brought out in the parties' Pleadings thereby leaving the doors open for further litigation over the same issue. 3. That the Court below erred both in law and fact at page J12 of the Judgment by holding or finding that there was evidence that some works were executed under an oral agreement and some under a written agreement without specifying which works were done, thereby abdicating its duty to adjudicate upon the issue in controversy between the parties brought out in the parties' Pleadings and ignoring the evidence on record that the action was brought under the written Agreement entered into by the parties. JlO 4. That the Court below erred both in law and fact at page J13 of the Judgment by holding or finding that there were two contracts in the matter before it namely; one oral and other written and that there was no evidence to show that the oral contract was ever terminated, thereby contradicting itself at the same page when it found that the oral contract was superseded by the written Agreement and further ignoring the fact that the action was brought under a written Agreement between the parties. 5. That the Court below erred both in law and fact at page J14 and page J15 of the Judgment by finding or holding that the Defendant should pay the Plaintiff for the actual works done but not yet paid and that in default of agreement, assessment by the Deputy Registrar without first finding liability as to what actual works were done, thereby abdicating its duty to adjudicate upon the issue in controversy between the parties brought out in the parties' Pleadings and thereby transferring the finding of liability to the Deputy Registrar. 6. That the Court below erred both in law and fact at page J14 of the Judgment by holding at page J14 that it had already adjudged under Claim (i} for payment of the sums due from the Defendant as pleaded to be paid accordingly, thereby contradicting itself on what it earlier ordered at page J13 that the Defendant should pay the Plaintiff for the actual works done but not yet paid. Jll 7. That the Court below erred in law and fact when it did not act judiciously and awarded costs to Respondent notwithstanding the fact that the Respondent succeeded only in one claim which claim the Court could not even specify in regard to quantum despite the pleadings having specified liquidated sums. 5.0 THE RESPONDENT'S CROSS APPEAL 5.1 Equally disenchanted with parts of the Judgment of the lower Court, the Respondent did on 20th June 2023, file its Notice of Cross Appeal on the following three (3) grounds: 1. The Lower Court erred in law and fact when it ordered that the Appellant and Respondent agree on the payment to be made to the Respondent for works done but not yet paid and subjecting the same to assessment by the Deputy Registrar in default of agreement despite his finding that the Respondent had succeeded in proving that works had been executed by the Respondent but not paid for as pleaded; 2. The lower Court erred in law and fact when it held that the award for the claim of works done but not paid disentitled the Respondent from its claim for loss and damage and; 3. The Lower Court erred in law when it failed to pronounce itself on the Respondent's claim for damages for breach of the Master Service Agreement. J12 6.0 APPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPEAL 6.1 The overarching principle canvassed by the Appellant in its heads of argument and those filed in reply, rest on the fundamental defect in the quality and substance of the judgment of the lower Court. 6.2 With respect to ground 1, the gist of the Appellant's argument is that the judgment of the lower Court did not meet the minimum standard requirement of a judgment. The Appellant referred to numerous cases, namely; Minister of Home Affairs, Attorney General v Lee Habasonda2 Kansanshi Mine PLC v , Maini Joseph Mudimina & Others 4 and Brisk Fast Limited and Another v Wonder Fundiwa and Others 12 It is the submission that based on the . guidance from these authorities, every aspect of the suit between the parties should be adjudicated upon by a trial judge so that every matter in controversy is determined with finality. It was argued that the Appellant has been left uncertain as to what exactly the Respondent is entitled to under the Judgment in relation to the claim for payment of the sums due as pleaded. 6.3 The gist of the Appellant's argument in ground 2, is that the trial Court made a finding of fact in the absence of relevant evidence and upon a misapprehension of facts at page Jll of the High Court Judgment appearing at page 19 of the Record of Appeal by finding or holding that there was no dispute that the Appellant executed the works save for a few without specifying which few works were not done. To support this argument, the Appellant referred to the Appellant's Amended Defence at page 38 of the J13 Record, in particular at paragraphs 7, 8, 9 and 10 of page 38 to 39 of Volume 1 of the Record of Appeal. 6.4 The Appellant also referred to the exhibited Report on the Status of the Service Stations in its Bundle of Documents appearing at pages 417 to 420 Volume 2 of the Record of Appeal. It was argued that this report contains a summary of the works conducted by the Respondent and further confirms payment of the same by the Appellant. It was further argued that the lower Court erred by not specifying which works were done based on its analysis of the evidence presented by the Appellant and that presented by the Respondent, which has left the possibility for more litigation on the same issues. 6.5 The Appellant argued grounds 3 and 5 collectively and the gist of its arguments were outlined as follows: i. There is a need for purchase orders before any services could be rendered under the MSA. 6.6 It is the submission that this Court should give efficacy to the MSA by respecting, upholding and enforcing the terms of the MSA. The Appellant argued that the trial Court misdirected itself when it failed to consider the terms of the MSA, which state that the Respondent was required to provide services to the Appellant in response to a Purchase Order. It was argued that the Respondent was aware at all material times that there was a need for a purchase order to be issued by the Appellant before services could be carried out by the Respondent. J14 6.7 The Appellant argues that several purchase orders concerning the relationship between the Appellant and Respondent are found on pages 178 to 246 of Volume 1 of the Record, and that these purchase orders governed their relationship at all material times. ii. The Appellant submitted that the MSA was not varied by practice 6.8 The Appellant submitted that the Respondent argued in the lower Court that it was the practice of the parties that an instruction would be sent by email or telephone and then work would be performed by the Respondent. Thereafter, quotations would be issued, and then purchase orders would be prepared by the Appellant and finally invoices would be issued and then receipts. It is the Appellant's submission that the lower Court did not state its finding in relation to this issue. It was argued that the foregoing is absurd as it presupposes that the parties would never agree on the price before services are performed. 6.9 It is the submission that at all material times and as per the MSA, there was need for Purchase Orders to be issued first by the Appellant before any work could be performed by the Respondent. It was argued that the Respondent lamentably failed to prove the parties varied the terms of the MSA through the practice of the parties and thereby disregarded the need for a purchase order to be issued before services are rendered by the Appellant. 6.10 It is the further submission that in order to constitute a practice, there has to be repeated exercise or habit shown and that the one incident of an instruction in an email, does not confirm or constitute a practice sufficient to vary the MSA. It was argued that for any variation to be valid, the same must J15 be in writing and executed by both parties. The Appellant argued that it is evident from the evidence in the trial Court, that there was no such written variation of any of the terms of the MSA. As such, the alluded practice cannot be said to be binding. 6.11 It was further submitted that in the absence of purchase orders for the six (6) service stations in issue, the Respondent's claims relating to the said service stations have no basis and are therefore misconceived. iii. The Appellant submitted that there was no proof of works in the trial Court. 6.12 In support of the above, the Appellant invites this Court to consider the Respondent's evidence in the Court below in the Respondent's bundle of documents appearing at pages 52 to 298 of Volume 1 of the Record of Appeal. 6.13 The Appellant went to great lengths to demonstrate the above which can be seen from pages 25 to 33 of the arguments and ultimately submitted that there was a dereliction in the Court's duty by failing to specify which actual work it was of the view, had been proved by the Respondent in the Court below thereby abdicating its duty to adjudicate upon the issue in controversy between the parties. It is the Appellant's contention that by referring the matter to the Deputy Registrar, the trial Court was transferring its duty to make a finding of liability to the Deputy Registrar. It is the argument that the Respondent failed to discharge the burden of proof and therefore, the Respondent's claim regarding the payment of the sums due as pleaded ought therefore to have been dismissed. J16 6.14 In relation to ground 4, the gist of the Appellant's submission is that the finding of the trial Court, that there was no evidence that the oral contract was ever terminated, is erroneous. It is the argument that the Court below did not give effect to the MSA by finding that there was an oral agreement that also regulated the relationship between the parties. It is the submission that the MSA superseded any prior arrangements between the parties. As such, the Court is precluded from placing reliance on any prior arrangements or agreements between the Appellant and Respondent in respect of the services rendered during the duration of the MSA. 6.15 It is the submission that the MSA terminated any oral arrangement between the Appellant and the Respondent that may have existed prior to the MSA. Therefore, the Court below erred both in law and fact by holding or finding that there were two contracts in the matter before it namely; one oral and the other written and that there was no evidence to show that the oral contract was ever terminated. The Appellant urges this Court to reverse the lower Court's findings as they are perverse and were made upon misapprehension of facts and further that there were findings which on a proper view of the evidence on record no trial Court can reasonably make. 6.16 In relation to ground 6, the Appellant referred to NFC Africa Mining Limited v Lofoyi Enterprises Limited13 and reiterated the submission that a judgment must be clear and concise. J17 6.17 In ground 7, the Appellant argued that the trial Court erred in awarding full costs in the High Court to the Respondent, as the Respondent was unsuccessful in most of its claims. The Respondent only succeeded on one claim, which the Court failed to specify in regard to quantum, despite the pleadings indicating liquidated sums. The Appellant referred to section 24{l)(a) of the Court of Appeal Act 2 and urged this Court to find merit in the appeal and set aside the judgment of the lower Court. 7.0 RESPONDENT'S HEADS OF ARGUMENT AND ARGUMENTS IN SUPPORT OF THE CROSS APPEAL 7.1 The Respondent appears to have challenged the propriety of the grounds of appeal in its effort to convince us that all but ground one of the seven grounds of appeal, contravene the mandatory provisions of Order 10 rule 9 {2) of the Court of Appeal Rules 1 . It has called in aid several decisions of the Supreme Court which have stated the principle that the grounds of appeal ought to be set out in a concise manner without argument or narrative drawing out the point of law or fact that an intended appellant seeks to raise. Reference was made to the cases of Jason Yumba and 22 others v Luanshya Municipal Council14 and the case of Mandona Freeboy v Joshua Nkandu15 . The Respondent has urged us to dismiss the remaining six grounds of appeal. 7.2 On the principle that litigants are required to observe the rules of court, and the flowing dire consequences of non-compliance, the Respondent has referred to the cases of Twampane Mining Co-operative Society Limited v E J18 and M Storti Mining Limited16 , Philip Mutantika & Mulyata v Kenneth Chipungu 17 and Communications Authority of Zambia v Vodacom 18 . 7.3 The Respondent has also canvassed the position that the heads of argument filed by the Appellant are inconsistent and introduce arguments that are a complete departure and inconsistent with the grounds of appeal. It has submitted that the arguments of the Appellant advanced in respect of grounds 3 and 5 are a departure from the grounds set out in the memorandum of appeal. 7.4 The Respondent has placed reliance on a decision of this Court in the case of Mukaba v Association of Chartered Certified Accountants (ACCA)19 and the case of Chilumba Gerald v ZESCO Limited 20 a decision of the Supreme Court to argue the submission that the disparity between the grounds of appeal and the heads of argument is so blatant and seeks to introduce new and additional grounds of appeal without formal application. The Respondent calls upon us to expunge the offensive arguments from the record. 7.5 The Respondent then proffered opposing arguments to the grounds of appeal in its extensive and lengthy heads of argument. For reasons that will become obvious, we have not re-stated the essence of the arguments in opposition as the Record is comprehensive. 7.6 In its three-paged arguments tendered in support of its cross appeal, the Respondent in ground 1 has argued that the lower Court fell into error when it ordered that the Appellant and Respondent agree on the payment to be made for works done and subjected the same to assessment by the Deputy J19 Registrar despite finding that the Respondent had successfully proved that the works pleaded had been executed. 7.7 The Respondent in this ground has canvassed the position that the works, the subject of the dispute between the Parties, being liquidated claims, with supporting invoices and evidence, the lower Court ought to have ordered payments of the sums owed without referring the parties to assessment. 7.8 In its second and third grounds of cross-appeal, the Respondent contends that the trial court did not settle all issues in controversy between the Parties as mandated to do under section 13 of the High Court Act 3 . 8.0 APPELLANT'S HEADS OF ARGUMENT IN REPLY AND ARGUMENTS IN OPPOSITION TO CROSS APPEAL 8.1 In opposing the objection mounted by the Respondent regarding the propriety of the Appellant's grounds of appeal, coupled with the allegation that the arguments are inconsistent with its grounds of appeal, the Appellant has countered that the two issues raised by the Respondent are misconceived and devoid of merit as they ought to have complied with the provisions of Order XIII rule 5 (1) of the Court of Appeal Rules 1. 8.2 In responding to the main arguments, the Appellant has advanced its arguments in the same order as presented by the Respondent, commencing with ground 4, 2, 3 & 5, 6, 1 and 7. We have noted the arguments fully and mostly which are a repetition of the main arguments and augmented with J20 references and authorities canvassing the earlier arguments already considered by the Court. 8.3 In its heads of argument in response to the cross appeal, while agreeing with the lower Court's order referring the matter for assessment, the Appellant relied on grounds 3 and 5 of its grounds of appeal to argue the position that the lower Court erred in not pointing at which evidence confirmed or proved that the works on certain sites were executed and those works which were not. 8.4 In response to grounds 2 and 3 of the cross appeal, the Appellant has argued that the lower Court correctly dismissed both the claims for damages and urged us to dismiss the cross -appeal. 9.0 RESPONDENT'S ARGUMENTS IN REPLY TO ARGUMENTS IN OPPOSITION TO CROSS APPEAL 9.1 In its reply, the Respondent repeated its arguments tendered to support the grounds of cross appeal. We have fully considered the reply filed on 18th September 2023. 10. 0 THE HEARING 10.1 At the hearing of the appeal, Counsel placed firm reliance on the arguments filed in support of the appeal and cross appeal respectively, as noted in paragraph 1.3 above. In their viva voce submissions to augment their arguments, Counsel Mudenda and Chisenga invited the Court to note that the Judgment of the lower Court fell short of the required standard for Judgments J21 of a Court and pointed at several findings of the lower Court which were characterized as vague, unsupported by evidence and prayed for the appeal to be allowed in its entirety. 10.2 Counsel for the Respondent equally urged the Court to find that the evidence led in the lower Court was not challenged with respect to works done prior to the execution of the MSA and that the lower Court was on firm ground to find the existence of both an oral and written contract. 10.3 Counsel for the Respondent invited us to note that the objection it had raised to the manner in which the Appellanf s grounds of appeal was couched was proper, as the objection was directed at specific grounds and not all the grounds of appeal. It was Counsel Nkunika's submission that the Respondent was in order to raise the objection in the manner it did and referred us to our Ruling in the case of African Banking Corporation Zambia Limited v Helios Fair Fax Partners. It was counsel1s argument that an application under Order XIII rule 5 may only be raised if all the grounds of appeal are likely to be affected by the preliminary objection. 10.4 With respect to the cross appeal, Counsel placed reliance on the arguments and reply filed and referred to in paragraph 1.3 above. 11.0 ANALYSIS AND DECISION OF THE COURT 11.1 As we consider the voluminous and loaded range of arguments placed before the Court, we are of the considered view that we introspect the import and effect of ground 1 of the appeal from which all attendant consequences will J22 flow. The Appellant has strongly canvassed the point that the Judgment of the lower Court failed to meet the benchmark of a judgment which resulted in a dereliction of duty on the part of the learned Judge in the lower Court. 11.2 We were referred to Order XXXVI rule 2A of the High Court Rules, as amended by Statutory Instrument No. 58 of 2020 5 which provides as follows: "Wherei. An action is defended, the judgment shall contain a concise statement of the case, the points for determination, the decision on the case and the reasons for that decision; and ii. Issues in an action have been framed, the Court shall state in relation to each issue, the court's finding or decision and the reasons for that finding or decision." 11.3 In the cited case of Lee Habasonda 2 the Apex Court has addressed the required standard for judgments as follows: "We must, however, stress for the benefit of the trial courts that every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the Jaw and authorities, if any, to the facts. Finally, a judgment must show the conclusion. A judgment which only contains verbatim reproduction and recitals is no judgment. In addition, a court should not feel compelled or obliged and moved by any decided cases without giving reasons for J23 accepting those authorities. In other words, a court must reveal its mind to the evidence before it and not just simply accept any decided case. 11 11.4 A similar guidance was issued in the cited case of Kansanshi Mine Pie v Maini Joseph Mudimina & Others 4 in which the Supreme Court guided as follows: "in our view, there are four purposes of the judgment as enunciated by Justice Roslyn Atkinson, Supreme Court of Queensland: (a) to clarify your own thoughts; (b) to explain your decision to the parties; (c) to communicate the reasons for the decision to the public; and (d) to provide reasons for an appeal court to consider. It is particularly important that the losing party knows why he or she has lost the case. It is natural for someone who loses to feel disenchanted with the legal process, so it is important that the reasons for judgment to show that the losing party has been listened to, that the evidence has been understood, the submissions comprehended, and a decision reached. 11 11.5 The same principles of judgment writing were extensively canvassed by the Apex Court in the case of Sun Country Limited and Others v Rodger Redin Savory and Another3 which confirmed the stand taken in the case of Zambia Telecommunications Company Limited v Aaron Mulwanda and Paul Ngandwe21where at page JlO the Apex Court stated as follows: " .... we held that a Judgment should be thorough, exhaustive, and clear on issues. We further outlined the seven essential elements of a Judgment, namely: J24 1. An introductory structure, setting forth the nature of the case and identifying the parties; 2. The facts; 3. The law relevant to the issues; 4. The application of the law to the facts; 5. The remedy; and 6. The order. 11 11.6 In the cited case of Wilson Masauso Zulu 5 , the Supreme Court held as follows: "I would express the hope that trial Courts will always bear in mind that it is their duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined with finality. A decision which because of uncertainty or want of finality, leaves a door open for further litigation on the same issues between the same parties can and should be avoided." 11.7 It is acknowledged that while Judges have free reign to style and structure their judgments it is equally cardinal based both on statute and case law, that the said Judgment must meet and conform to the basic tenets and requirements. A Judgment must determine issues in dispute with clarity and precision without leaving loose ends or ambiguity, which will inevitably necessitate further and protracted litigation. 11.8 The Respondent has attempted to argue that the Appellant's argument with respect to ground 1 are general as it has not specified or attacked specific J25 portions of the Judgment which failed to meet the benchmark or threshold. It is the Respondent's argument that the Judgment of the Lower Court is capable of being enforced and relied on the authority in the case of Abel Hachaambwa and others v Cheelo Mweemba22 in which case the Supreme Court offered guidance in cases where even though the Judgment (the subject of any appeal) may be unconventional in style and structure, it may still be acceptable if there is a decision of sorts which is capable of being enforced. The Apex Court stated as follows: "Having said so, however, we must clarify that the poverty of a judgment in terms of style, syntax, or diction, cannot of itself ground the success of an appeal. It has to be established whether, on the particular circumstances of the case as presented, a decision of the court is discernable. In other words, the determinative question should be whether, notwithstanding the decidedly evident defiance of the qualities of a good Judgment as we have set them out in numerous case authorities, some of which we have alluded to in this Judgment, it is still possible to identify the soul of the decision and order of the court. Our reading of the lower court's Judgment is that in spite of its unorthodox formulation, there is, nonetheless, a decision of sorts and reasons for that decision. In the event the appeal cannot succeed merely on the premise that the shape or structure of the judgment is not conformist; it has to be on the efficacy of the reasons assigned by the Judge for his decision, or rather the lack thereof" J26 11.9 In our considered view, and borrowing from the above strong guidance, the analysis and evaluation of the evidence before the lower Court provides more questions than answers. There is no decision capable of enforcement, the orders made do not correspond with the scant reasoning offered, and mostly the claims and defence as pleaded by the Parties, are left hanging which necessitated the remaining grounds of appeal as well as the grounds of cross appeal. 11.10 In one breath, the learned Judge appears to make a sweeping finding that works were done, in response to a liquidated claim, and in the other breath, he appears to refer the quantum of works done, for assessment. We also note that ground 1 of the Respondent's cross appeal shows dissatisfaction with the Judgment on the same grounds as canvassed under grounds 5 and 6 of the Appellant's appeal. 11.11 It is clear to see that the Parties have each chosen to file extensive heads of argument, arguments in opposition and in reply to their appeal and cross appeal respectively, with verbatim extracts of evidence and proceedings in the Court below, in an endeavor to sway this Court into making findings of fact on disputed and contested evidence, and thereby disturb findings made by the lower Court pursuant to the enabling provisions of section 24 of the Court of Appeal Act2 . 11.12 We have directed our attention to a judgment of this Court rendered in the matter of Manda Hill Centre Limited v Freshview Cinemas Limited23 wherein we were able to make specific orders regarding the claims in that matter. In J27 that case, the learned Judge had made pronouncements and findings which were simply scattered piece meal, and we were able to extract and formulate the same as Orders of the Court. 11.13 In casu, we decline the invitation to do so as we will be straying into the arena of the lower Court. We are not sitting as the Court of first instance. The lower Court did not reveal its mind at all on the several competing issues in order for us to give judgment as the justice of the case may require. As we have noted, the lower Court in its scanty Judgment, not having revealed its mind, and not having analysed the evidence of the Parties, we cannot cherry pick those findings of fact that we agree with whilst making other findings of fact also from contested and competing arguments which were simply left un attended. 11.14 For the position we have espoused, and to not comment on the merits of the matter, we will not belabor to show how and where the Judgment of the lower Court, the subject of the appeal in casu is deficient, noting only, that it does not communicate a decision at all and least of all a decision capable of being enforced. Regarding a decision of the Court, the Supreme Court in the case of Zambia Telecommunications Company Limited (ZAMTEL) v Mulwanda and Another 21 observed at page 415 that: "A judgment is not supposed to be interpreted. It should be thorough, exhaustive and clear on all issues." 11.15 In the cited ZAMTEL case21 , the Apex Court cited with approval an article on 'Writing a Judgment' by Hon. Mr. Justice M.M. Corbett, the former Chief J28 Justice of the Supreme Court of South Africa, wherein commenting on an Order of the Court, he opined as follows: "As far as the parties are concerned, this is what the litigation was all about. This is what the winner will take to the sherifff or execution. Make sure that the order is properly formulated; that it reflects the intended result. 11 11.16 Without any hesitation, we find that the Judgment of the lower Court does not show any reasoning, nor does it show if the competing evidence was reviewed, nor any reasons to prefer the evidence of one party over the other. Simply put, we uphold ground 1 of the appeal. 11.17 With reference to all other grounds of appeal including grounds 2 and 3 of the Respondent's cross appeal, we will not address those for the final order that we will make. 11.18 We have in our judgment delivered in the case of Madison General Insurance Company Limited v African Banking Corporation Zambia Limited24 lamented on judgments and extempore Rulings issued by the trial courts which fall short of the expected standard. In that case, we referred to another appeal before us, emanating in the case of Solomon Laban Jumbe Ngwenya & Others v Hope Chanda and Focus Financial Services Limited25 from the same court as in casu, and in that judgment we opined as follows: "It is undesirable for a trial court (Judge) to render an unreasoned ruling .... Further, ex-tempore rulings are impromptu and do not entail J29 the same preparation as reserved decisions. Such a ruling whether the judgment gives it orally immediately after a hearing and publishes a written one at a later stage must indicate briefly the index, introduction, facts and a clear articulation of the points of determination, the relevant evidence, the applicable law to the facts of the case, the findings, reasoning and conclusion, The guidelines for writing rulings including ex tempore ones similar to the ones for judgment writing are given in the Habasonda case supra". 11.19 We echo the same guidance as above and note that our guidance and that of the Supreme Court, applies equally to judgments and rulings, reserved or delivered extempore. 11.20 We also address the attempt at raising a preliminary objection by the Respondent under the subheading "Propriety of the Grounds of Appeal" at page 2 of its Arguments of 17th July 2023. For the ultimate decision that we have made, we will not speak to the alleged inconsistencies of the arguments viz the grounds of appeal. We will also not be drawn into the arguments extensively canvassed as to the manner in which a preliminary objection may be taken against portions of the grounds of appeal as opposed to wholesome objections with reference to Order XIII rule 5 (1) of the Court of Appeal Rules.1 12.0 CONCLUSION AND ORDERS OF THE COURT 12.1 We set aside the Judgment of the lower Court and refer the matter back for re-hearing before a different Judge of the Commercial Division. J30 12.2 We also set aside the order of costs and order that costs shall abide the outcome of the proceedings in the lower Court. M. J. SIAVWAPA JUDGE PRESIDENT A.M. BANDA-BOBO A.N. PATEL S.C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J31