Olibul Investment Limited v Maicos Trading Limited and Ors (2023/HPC/0200) (14 May 2024) – ZambiaLII

IN THE HIGH COURT FOR Z~JJlA COFlJlhf 2023/HPC/0200 AT THE COMMERCIAL REGISTRYvuuRTOF~f.f HOLDEN AT LUSAKA I' ~ r.tA.RY lci \w "' (Civil Jurisdiction) J H MAY ~24 BETWEEN: ~OM, EN.Cli-\L -,;,,~ V OLIBUL INVESTMENTS LIMITED.._ox u0 A\1NTIFF ' 500Si, l ~- AND MAICOS TRADING LIMITED FIRST DEFENDANT KABANDA NSOFWA SECOND DEFENDANT (T/A ROAN CAPITAL ENTERPRISES) Before the Honourable Mr Justice K. Chenda on 14th May 2024. • For the Plaintiff : Mr J. Chibalabala of John Chibalabala Legal Practitioners r'or the First Defendant : Ms C. Siachika of Japhet Zulu Advocates For the Second Defendant : N/ A ---------------------------------------------------------------------------------------------- JUDGMENT (Delivered Ex-Tempore} ---------------------------------------------------------------------------------------------- 1 INTRODUCTION AND BACKGROUND 1.1 The Plaintiff is a Zambian company in volved 1n road transportation services, cross-border. • 1.2 The First Defendant is Zambian company whose dealings extend to export of the copper commodity. 1.3 The Second Defendant is an individual who has had dealings with the Plaintiff and First Defendant. 1.4 The Plaintiff took out this action by writ of su mmons and statement of claim filed on 20th March 2023 seeking: (i) $23,400 as balance on transport charges; (ii) $14,400 for demurrage; (iii) special damages of K48,000 for upkeep, board and lodge of drivers; (iv) interest; (v) any o·ther relief that the Court may deem fit; and (vi) costs. 1.5 The First Defendant contested the action through its defence filed on 3rd April 2023. It also counterclaimed • against the Plaintiff for: (i) damages for breach of contract; (ii) costs; (iii) any other relief the Court may deem fit. 1.6 The Second Defendant did not contest the action, let alone appear. The pleadings closed with a reply and defence to counterclaim, filed by the Plaintiff on 25th April 2023. • 2 CASE MANAGEMENT AND ISSUES 2 .1 The matter was re-allocated to me on 18th August 2023 and I convened a scheduling conference at which the characteristic Bar-Bench consultation took place to foster a problem solving environment. J2 2.2 It bore fruit in forn1 of entry of partial judgment on admission and streamlining of the remainder of the case into five key contentions embodied in an Order for Directions dated 14th November 2023 as: (i) is the First Defendant bound by the contract dated 23rd November 2022 and if not, what were the terms of agreement between the Plaintiff and the First • Defendant; (ii) whether, in view of the contract of 23rd November 2022, the Second Defendant was an agent for the Plaintiff or the First Defendant; (iii) was the Plaintiff entitled to keep the First Defendant's cargo marooned for the period 30th December 2022 to 12th January 2023 or for any period at all; (iv) has the Plaintiff suffered any injury for which the First Defendant and/or the Second Defendant ought to • atone and/ or has the First Defendant suffered any injury for which the Plaintiff ought to atone; and (v) is the Plaintiff entitled to any further relief against the Defendants or either of them and/ or is the First Defendant entitled to any relief against tne Plaintiff. J3 2. 3 The parties through Counsel, thereafter swiftly attended to all pre-trial preparations and the matter was set down for trial. 3 TRIAL AND CLOSING SUBMISSIONS 3.1 Trial took place today and the evidential catalogue from the parties was as fallows - 3.1.1 the Plain tiff called one witness namely Canaan Phiri • (PW) - finance manager of the Plaint iff; 3.1.2 the First Defendant called two witnesses who both serve on its board of directors namely Cosmas Mutale Mushile (as DWI) and Martyn Maida (DW2); and 3.1.3 the Second Defendant did not testify nor present any evidence. • 3.2 Counsel then addressed me viva voce in closing. This was after I formed the view that the case is fit and proper to invoke Order 36 Rule 2(l)(a) of the High Court Rules, under Cap. 27 to render my decision ex-tempore (which I hereby do below). J4 4 ANALYSIS AND FINDINGS 4.1 I wish to thank Counsel (for the parties present) for rising to the occasion to prepare and advance such eloquent, well thought out and useful submissions. 4.2 That said, 1 have closely studied the material on record, evidence and submissions. After a careful consideration my decision is as follows. • The contention of whether the First Defendant is bound by the contract dated 23rd November 2022 and if not, what were the terms of agreement between the Plaintiff and the First Defendant. 4.3 From the outset, I observe that the Plaintiff alleges in paragraph 4 of the statement of claim that the contract was entered into between the Plaintiff and the Second Defendant. 4.4 PW, DW 1 and DW2 all stated in their witness statements • that the Second Defendant entered into the contract with the Plaintiff. DW 1 testified in cross examination that Second Defendant's trading name was actually 'Roan Capital Enterprises' as per business names printout (at p48-49, Plaintiff's bundle). JS 4.5 I thus find that the PlaintifI's counterparty in the contract was actually the Second Defendant notwithstanding the apparent error in the name of the latter i.e 'Roan Logistics' instead of 'Roan Capital Enterprises'. 4.6 The learned authors of Chitty on Contracts (2004), Vol.1 (General Principles), London: Sweet and Maxwell, p. 732 at para. 12- 051 have this to say on interpretation of • contracts: "Adoption of the ordinary meaning of words. The starting point in construing a contract is that words are to be given their ordinary and natural meaning." (Emphasis added) . . 4. 7 The requirement to ascribe the ordinary and natural meaning to words used in a written agreement 1n the absence of ambiguity or absurdity was endorsed by the • Supreme Court in lndo Zambia Bank Limited v Mushaukwa Muhanga. (2009) ZR 266 at p. 277, lines 639. J6 4. 8 Further, in Cav,nont Capital Holdings Plc. v Lewis Nathan Advocates - SCZ Judgment No. 6 of 2016 at p. J35-36, the Supreme Court guided that a court is duty bound to interpret a written contract within its four corners instead of in light of or in conjunction with extrinsic evidence that contradicts or varies the written text. • 4. 9 Applying the aforesaid principles to the contract, it is evident that clause 4 allowed for assignment or transfer but made such right exclusive to the Plaintiff with no extension to the Second Defendant. 4. 10 Clause 11.2 of the contract for its part had a rigid amendment clause which dictated that any changes had to be in writing and signed for by both parties. 4. 11 Thus the argument by the Plaintiff that the First • Defendant's letter of 18th January 2023 (at p.31 of its bundle) sufficed to substitute the First Defendant for the Second Defendant is untenable as the letter was not signed by the Plaintiff and Second Defendant to endorse any change in parties to the contract, let alone transfer of rights and obligations. J7 4.12 Accordingly, the First Defendant is not bound by the contract as there is privity between the Plaintiff and Second Defendant to the contract. 4.13 Perusal of the contract shows that the Plaintiff was hired by the Second Defendant to offer transportation services. 4.14 Meanwhile, DW 1 and DW2 testified in cross examination that the First Defendant had hired the Second Defendant • to offer transportation services and that the Second Defendant sub-contracted the Plaintiff. 4.15 In other words the First Defendant hired the Second Defendant to transport cargo whilst the Second Defendant hired the Plaintiff to do the actual transportation of that cargo. 4.16 It 1s noteworthy that the aforesaid evidence was • unchallenged . 4. 17 The learned authors of Halsbury's Laws of England 5 th Edition, (2011) Vol. 6 (Building Contracts), London: Sweet and Maxwell at p.219, para. 245 posit: "Relationship between employer and sub-contractor: no privity of contract. JS There is no privity of contract between the employer and the sub-contractor or between the architect and the sub-contractor) although the employer or his architect may rarely nominate the sub contractor under the provisions of the main contract. The employer may) however) secure a direct warranty from a sub-contractor. (Emphasis added) 4.18 I therefore find that the Second Defendant had independent contracts with the First Defendant and with the Plaintiff, albeit relating to the same cargo . • The contention of whether, in view of the contract of 23rd November 2022, the Second Defendant was an agent for the Plaintiff or the First Defendant. 4. 19 In V1ew of the findings in the preceding contention, it follows that the Second Defendant vvas neither an agent for the Plaintiff nor the First Defendant. The contention of whether the Plaintiff was entitled to keep the First Defendant's cargo marooned for the period 30th December 2022 to 12th January 2023 or for any period at all . • 4.20 To begin with, DW2 admitted in cross examination that the wrongdoer was the defaulting Second Defendant not the Plaintiff. 4.21 Perhaphs more significantly, this contention 1s now moot as: J9 4.21.1 only parties to a contract can sue or be sued on it (Zambia Oxygen Limited & ZPA v Paul Chisakula & Ors. (2000) ZR 27 at p.30) such that assuming there was a wrong committed in form of marooning the First Defendant's cargo, it would have been incumbent on - a) the First Defendant to claim against the Second Defendant (under their agreement); and b) the Second Defendant to claim (against the • Plain tiff under the contract); 4.2 1.2 meanwhile the First Defendant did not extend its counter-claim to the Second Defendant, while the Second Defendant for its part would be disentitled from deriving a claim-benefit from the Plaintiff, in these circumstances which were brought about by the Second Defendant's own wrongs / default 1n payment (see Konkola Copper Mines Plc. v Mitchell Drilling International Ltd. & Anr. (2015) Vol. 2 ZR 203 at p. 221) . • The contention of whether the Plaintiff has suffered any injury for which the First Defendant and/ or the Second Defendant ought to atone and/ or has the First Defendant suffered any injury for which the Plaintiff ought to atone. and The contention of whether the Plaintiff is entitled to any further relief against the Defendants or either of them and/ or is the First Defendant entitled to any relief against the Plaintiff. JlO • 4.22 In the circumstances above, save for enforcement of the partial judgment on admission, the Plaintiff is not entitled to any further relief against the First Defendant. 4.23 Similarly, 4.23. l the First Defendant not being privy to the Plaintiffs contract with the Second Defendant; and 4.23.2 the Plaintiff not being privy to the First Defendant's • contract with the Second Defendant, there is no basis for the First Defendanfs counterclaim against the Plaintiff (Zambia Oxygen Limited & ZPA v . Paul Chisakula & Ors. (2000) ZR 27 at p.30 is again applicable). 4.24 However, when it comes to the Second Defendant, clauses 5.12 and 5.13 of the contract entitle the Plaintiff to levy a • financial charge of respectively 1% for the first 5 days and 2% per month on the unpaid dues. Clause 5.4 also made the Second Defendant liable for payment of duties and taxes. Jll • 4.25 Clause 3.3 of the contract also provided that the Second Defendant \vould indemnify the Plaintiff against the effects of the Second Defendant's breach in obligations. 4.26 Accordingly, over and above levying the financial charges, the Plaintiff is entitled to look to the Second Defendant for indemnity for all and any expenses incurred as a result of the Second Defendants default on payment obligations . • CONCLUSION AND ORDERS Reliefs ( 1)-(5) in the writ of summons 5.1 These claims succeed to the extent that the the Plaintiff is entitled to recover the follo\.ving against the Second Defendant, quantums to be assessed: 5.1.1 the unpaid balance due on the contract of 23rd November 2022; 5.1 .2 finance charges in accordance \Vith clause 5.12 and • 5.13~ 5.1.3 indemnity for demurrage and any other charges pursuant to clause 3.3; and 5.1.4 damages for breach of contract: Reliefs (i) and (iii) in the counterclaim J12 5.2 The First Defendant having failed to establish any breach of contract by the Plaintiff (actionable by the First Defendant), there is no basis to order damages against the Plaintiff or any other relief . Relief (6) in the writ of summons and (ii) in the counterclaim 5.3 Costs of litigation are a matter of discretion for the Court in terms of Order 40 Rule 6 of the High Court Rules, in Cap. • 27. 5.4 As for guidance in the exercise of that discretion, I heed the Supreme Court's judgment in Afrope Zambia Limited v Anthony Chate & Ors - Appeal No. 160/2013 at p.Jl6 where Wood, JS aptly stated: "lt is a settled principle of law that a successful party will not nonnally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party tuhich makes it improper for him to be granted costs.)) (Emphasis added) • 5.5 Given the outcome of the case, it is appropriate, fair and just to order that - 5.5.1 the Plaintiffs costs of obtaining partial judgment against the First Defendant under the order of 14th September 2023 and on recovery of any unpaid balance, shall be borne by the Firsl Defendant; and Jl3 5. 5. 2 the rest of the Plaintiffs and First Defendant's costs shall be borne by the Second Defendant (whose acts gave rise to this litigation) and taxed in default of agreement. J_- ----- Dated at Lusaka this _____ d of-------------- ----------------2024 K.CHENDA • Judge of the High Court • J14