Wellington Chuula Matimba T/A Netsim Solutions and Logistics v Consortium of Copperbelt Mining Ventures Limited (2023/HPC/0291) (13 March 2024) – ZambiaLII

I WELLINGTON CHUULA MATIMBA T / A NETSIM PLAINTIFF SOLUTIONS AND LOGISTICS AND CONSORTIUM OF COPPERBELT MINING DEFENDANT VENTURES LIMITED Before the Honourable Mr Justice K. Chenda on 13th March 2024 • For the Plaintiff : Mr T. Banda of Isaac & Partners For the Defendant : Ms. CK Puta & Mr KR Malipenga of Robson MaHpenga & Company ------------------------------------------------------------------------------------------------- JUDGMENT ------------------------------------------------------------------------------------------------- Primary legislation referred to: 1. The High Court Act, Cap. 27 of the Laws of Zambia Rules of Court: • l. The High Court Rules, created under Cap. 27 of the Laws of Zambia Case law: l . Richwell Siamunene v Sialubalo Gift -Vol. 3 (2017) ZR 335 at 354 2. Tresford Chali v Bwalya E.K. Ngandu- Appeal No.84/2014 at p.J32-33 3. Jonathan Van Blerk v AG & Ors- SCZ/8/3/2020 at p.J 114 4. Afrope Zambia Limited v Anthony Chate & Ors - Appeal No. 160/2013 at p.Jl6 \. Authoritative texts: 1. John Hatchard with O'Brien Kaaba, (2022), Principles of the Law of Evidence in Zambia, Cape Town: Juta and Company (Pty) Ltd, p. l 06 at para. 1 1 INTRODUCTION AND BACKGROUND 1.1 The Plaintiff herein is a businessman in the transport services industry while the Defendant is a corporate entity in the business • of exploiting the mine slug dump in Kitwe commonly known as the Black Mountain. 1. 2 The two parties had an interaction over the possibility of provision of transportation services by the Plaintiff to the Defendant to transport slug from the Black Mountain. 1.3 However, differences arose with the Plaintiff taking out this action on the basis that it provided trucks pursuant to a written contract but the Defendant allegedly refused to utilise them. The Plaintiff accordingly sought the following in the writ of summons and statement of claim filed 21st April 2023: 1.3.1 damages for breach of contract for the Defendant's failure to clear the Plaintiffs trucks; J2 t • 1.3.2 specific damages 1n the sum of K2,508,000 as reimbursement towards the total costs of expenses incurred by the Plaintiff due to the Defendant's breach of contract; 1.3.3 interest on the sums found due; 1. 3. 4 costs of and incidental to the proceedings; and 1.3.5 any other order that the Court may deem fit and just in the given circumstances . • 1.4 In its defence of May 2023, the Defendant disputed the Plaintiffs 9 th allegation of having provided the trucks and also questioned the validity of the written contract sought to be relied on by the Plaintiff. The Defendant counterclaimed for: 1.4.1 an order declaring the contract dated 15th July 2022 entered between Defendant and Netsim Solutions and Logistics Limited, as void for fraudulent misrepresentation and • illegality; 1.4.2 damages for misrepresentation; 1.4.3 costs; and 1.4.4 any other order that the Court may make. J3 1.5 In his reply and defence to counterclaim filed on 11th July 2023 the Plaintiff reiterated his grievances, the validity of the written contract and the refusal of the Defendant to utilise the trucks alleged to have been provided. The matter thereafter progressed as set out below. COMMON GROUND AND ISSUES FROM PLEADINGS 2.1 It is common ground that the Defendant and an entity Netsim • Solutions and Logistics Limited entered into an agreement. 2.2 It is also common ground that the Plaintiff is a sole trader operating under a business name Netsim Solutions and Logistics. 2.3 However, there appears to be no consensus on the whether the Plaintiff provided 12 trucks for the period of 18th July 2022 to 23rd August 2022 while the Defendant avers the Plaintiff did not provide the said trucks . • 2.4 Following the close of pleadings, I convened a scheduling conference on 25 July 2023 at which the Bar-Bench consultation yielded fruit th in terms of streamlining the case into the following core issues: i) was the agreement dated 15th June 2022 (the "Agreement") valid and binding; J4 ii) if so, is the Plaintiff privy to the Agreement or otherwise entitled to enforce it; iii) did the Plaintiff provide 12 trucks for the period 18th July 2022 to 23rd August 2022 and if so is the Defendant bound to honour the cost th ereo f; and iv) is the Plaintiff ent i tied to relief from the Defendant or is the Defendant instead entitled to relief against the Plaintiff. 2.5 Issues (i) and (ii) were interrogated at a preliminary hearing on 25th • August 2023 and determined in the negative in a ruling of even date. 2. 6 Issues (iii) and (iv) were reserved for trial after fulfilment of the preparatory directions given in the order for directions of 25th August 2023. 3 SUMMARY OF EVIDENCE • 3.1 Trial was held on 22nd November 2023 with the Plaintiff testifying as sole witness on his behalf and the Defendant calling one witness. The summary of the testimonies is as fallows: 3.2 The Plaintiff's testimony in chief co1nprised his witness statement of 10th October 2023 and a bundle of documents of 15th September 2023. JS 3.3 He stated that in 2022 he introduced the Defendant to an entity called Ramoji Resources to assist the Defendant exploit the Black Mountain. 3.4 It was the Plaintiffs testimony that after lobbying, he was engaged by the Defendant to transport slug from the Black Mountain to Kalulushi. • 3.5 He stated that he thereafter sub-contracted an entity called Mwaiseni to provide 12 trucks at K7,000 per day per truck as per contract at p. 7 -9 of the Plaintiffs bundle. 3.6 The Plaintiff testified that the sub-contracting costed him Kl20,000 for mobilisation of the trucks from Lusaka to Kitwe as per invoice at p.10 of the Plaintiffs bundle. 3.7 He stated that he sent the trucks to the Black Mountain and their • details to a Mr Warren Hinyama, Defendant's director as per instant message printout at p.12 of Plaintiffs bundle. 3.8 The Plaintiff complained that the Defendant however, did not clear the trucks for entry and he resorted to keeping them at a yard. His follow ups with the Defendant yielded no clearance. J6 3 .9 He testified that after 21 days his sub-contract with Mwaiseni ended and the trucks were demobilised at further expense as per invoice at p.11 of the Plaintiffs bundle. 3.10 He testified that the total expenditure that he incurred in the episode was K250,800. 3.11 Mr Matimba was cross examined by Ms Puta during which he • testified: 3 .11.1 the agreement that he entered into with the Defendant did not specify how many trucks he was required to supply; 3.11.2 the equipment hire agreement that he ~=-nered into with Mwaiseni for the trucks appears at p. 7 of his bundle and the Defendant was not party to it nor aware of it; 3.11.3 he hired 12 trucks under the said agreement; 3.11.4 at p.12 of his bundle is a WhatsApp message from him to • Mr. Hinyama listing trucks for clearance; l' 3. 11. 5 the trucks were never cleared by the Defendant and he had no authorisation from the Defendant to take them to the site but he took them to the site; 3. 11. 6 he had no evidence before Court to show that the vehicles were actually on site and that the Defendant was aware; J7 • 3. 11. 7 his knowledge that the trucks came from Lusaka is through Mw aiseni, which was supposed to deliver them to him in Kitwe· ' 3.11.8 he is aware that there are toll gates between Lusaka and Copperb elt but he does not have receipts from them before Co1.1rt to show the movement of the vehicles. 3.12 Mr Matimba was also cross examined by Mr Malipenga during • which he testified: 3.12.1 clause vii of the equipment hire agreement at p.8 of his bundle required N etsim to pay for fuel for the trucks but there were no receipts before Court to show that he actually paid it; 3.12.2 without any toll gate receipts to show that the trucks went to Kitwe, he had some pictures that he took of the trucks • in Kitwe but they were not before Court; 3.12.3 his proof that the trucks were in Kitwe was also shown by him sending a list for clearance; 3.12.4 after the trucks were not cleared, they were parked at a yard in Kalulushi but he had no witness before Court to prove it; JS 3.12.5 according to him the trucks reached Kitwe on the 30th or 31st July 2022 but according to paragraph 6 of his statement of claim they were delivered on 18th July 2022; 3. 12. 6 the statement of claim says he began to incur daily charges of K7000 from 18th July 2022 but he wants the Court to take August 2022 as the start date when he sent the list 3rd for clearance; • 3.12. 7 Mwaiseni sent two invoices to Netsim (at p.10-11 of his bundle), dated 15th July 2022 and 27th July 2022 respectively; 3.12.8 he paid the K120,000 on the first invoice in cash; 3.12. 9 Mwaiseni did not issue an invoice to him for the time the trucks were in Kitwe; 3.12.10 Mwaiseni has never made a demand for payment from him • because of the business relationship; 3.12.11 no one from the Defendant saw the trucks in Kitwe; 3.12.12 he did not call anyone from Mwaiseni or any of the drivers to prove that the trucks went to Kitwe because he did not think it necessary; J9 3.12.13 it is the practice in transportation that a vehicle cannot move to a loading point without a loading order but he mobilised vehicles without a loading order because it was not a requirement; 3.12.14 it took hi1n about two 1nonths to mobilise the trucks and before sending them to Kitwe he did not communicate with the Defendant that he was sending them; • 3.12.15 he saw the trucks in Kitwe and has witnesses who did but they are not before Court; 3. 12. 16 it is M waiseni that advised him that the trucks were coming from Lusaka; 3.12.17 he sent the Defendant pictures of the trucks but has not produced the pictures before Court; ... 3.12.18 no one from the Defendant's contractor (Ramoji Investments) saw the trucks in Kitwe on site; • 3.12.19 he complained about lack of clearance to the Defendant and was told to wait; 3.12.20 the trucks were delivered to him in Kitwe but he had no delivery note from Mwaiseni because they already had a con tract; and JlO 3.12.21 he knew all of the members of the Defendant company and it ,vould have been reasonable to inform the others when Mr. Hinyama did not attend to him but he did not. 3. 13 Mr Matimba was not re-examined and, on that note, he closed his case. 3.14 The Defendant presented its case with the testimony of Mr Warren • Hinyama {DW). His evidence in chief comprised a witness statement filed on 17th October 2023 and the Defendant's bundle of 15 September 2023. 1h 3.15 It was his evidence that he was a director in the Defendant company which was also engaged in engaging offt akers to purchase and take slug from the Black Mountain. 3.16 Mr Hinyama testified that the Plaintiff approached the Defendant • as a messenger of a potential offtaker and was advised by Mr Hinyama of the requirements before consideration. The requirements included the potential offtaker meeting the Defendant's management committee, as per text message printout at p. 9-19 of the Defendant's bundle. Jll 3.17 It was Mr Hinyama's testimony that the Plaintiff ignored the advice and signed the (now annulled) contract with another director of the Defendant Mr Bowas Kapita. 3.18 Mr Hinyama stated that thereafter the Plaintiff sent a list of vehicle number plates to be cleared and loaded by the Defendant. Further that he did so without any authorization from the Defendant nor payment as an offtaker. • 3.19 It was his testimony that the Plaintiff never sent any trucks to Kitwe but began to threaten the Defendant with litigation. 3.20 It was his testimony that the Plaintiff misrepresented himself to the Plaintiff as a representative of a company and yet all he had was a business name. 3.21 Mr Hinyama was cross examined by Mr. Banda during which he • testified: 3.21.1 the Plaintiff sent him a list of trucks for clearance on 3rd August 2022 but he did not clear them because he did not see them; J12 3.21.2 he did not provide reasons to the Plaintiff for not clearing the vehicles because the Plaintiff did not pay the Defendant the money it expected; 3 .21.3 whereas paragraph 23 of his statement says contractors' clear vehicles his position was that the Defe nda nt clears then contractors put on stickers; 3.21.4 the contractor (Ramoji Resources) has an office on site where • he (DW) is not personally on site such that it is possible that the Plaintiff brought the trucks and that he did not see them; 3.21.5 after the Plaintiff threatened to sue the Defendant, the Defendant was not inclined to let him bring the trucks because there were benchmarks to be followed. 3.21.6 if the Defendant had seen the trucks and if the Plaintiff had complied with the Defendant's procedures, the Defendant would have cleared the trucks; and • 3.21. 7 the Plaintiff was supposed to pay the Plaintiff an offtakers fee after stickers are given but before commencing operations. J13 3.22 When re-examined by Ms Puta, Mr Hinyama testified that the procedure used on site is not in the documents before Court. He also clarified that Ramoji Resources was hired to manage the operations and that once the Defendant clears trucks, the stickers are put on them and then the trucks are ready to go on site for offtaking. 3.23 On that note the Defendant closed its case. • 4 SUBMISSIONS FROM THE BAR 4.1 After conclusion of trial, the Plaintiff did not tender any final submissions whilst the Defendant tendered on 11th December 2023. 4.2 The Defendant's submissions were well researched and of immense use, for which I am grateful to Counsel. Owing to the peculiar circumstances of the case, I propose to dispense with a copious reproduction of their content. • 5 ANALYSIS AND FINDINGS 5.1 I have closely studied the material on record, evidence and submissions and after a careful consideration, my decision is as set out below. J14 The contention of whether the Plaintiff provided 12 trucks for the period 18th July 2022 to 23rd August 2022 and if so whether the Defendant is bound to honour the cost thereof 5.2 The learned authors of Principles of the Law of Evidence in Zambia(1), armed with jurisprudence from the Court of Appeal give a useful discussion on the discourse of burden of proof: "In civil cases the general rule is that 'they who assert must prove'. In most cases the legal burden ofp roof lies on the plaintiff • although in some situations, both parties may assume the legal burden on an issue(s). This recogni.zes that civil cases do not involve a criminal conviction nor punishment. In Hitech Logistics Limited v Ugondo Italian Style Limited, o.f Chishimba JA referred to the placing the burden of proof as follows: The legal burden of proof as to any fact in issue in a civil case lies upon the party who affirmatively asserts that fact in issue and to whose claim or defence proof of the fact in issue is essential. ... If the plaintifff ails to prove any essential element of his claim, the defendant will be entitled to judgment. The position of the defendant is somewhat different. Since the plaintiff affirmatively asserts his claim, the plaintiff bears • the burden of proving the claim and the defendant assumes no legal burden of proo.f by merely denying t he claim. However, if the defendant asserts a defence which goes beyond a mere denial (sometimes referred to as an affirmative defence) the defendant must assume the legal burden of proving such defence. An affirmative defence is most easily recognised by the Jact that it raises facts in issue which do not form part of the plaintiffs claim." (Emphasis added) J15 5. 3 I will now proceed to examine the evidence. 5.4 There is firstly some inconsistency on the part of the Plaintiff in terms of when the trucks were allegedly provided by him. It is alleged in paragraph 6 of the statement of claim that it was on 18Lh July 2022 while in cross examination by Mr Malipenga, the Plaintiff stated that the trucks reached Kitwe on either 30th or 31st July 2022 . • 5.5 Secondly, the Plaintiff conceded in cross examination that the trucks were not seen in Kitwe by any of the Defendant's officers nor by its contractor which maintains a presence at the Black Mountain site. 5.6 Thirdly the Plaintiff testified that he had taken pictures of the trucks in Kitwe but that he had not produced the pictures in Court. I find that strange because the Plaintiff has in his bundles produced • screen shots of messages from his telephone such that one would have expected that if at all the trucks had been photographed by him in Kitwe, he \Vould have hastily produced them at trial given this core contention which was known from the early stages of the case. J16 5. 7 Fourthly, the Plaintiff claims to have outsourced the trucks from a third party entity (Mwaiseni) which he said delivered the trucks to him in Kin~e. However he did not call anyone from there to testify to the allegation. 5.8 The Plaintiff also did not call any of the drivers of the trucks to testify about the alleged trip to Kitwe nor did he produce any documentation to evidence the handover of the trucks to him (the • Plain tiff) in Kit we. 5.9 The Plaintiff accepted in cross examination that under clause vii. of the equipment hire agreement, he was required to meet the fuel expense for the trucks. He however conceded that he did not have any receipts of fuel for the trucks. One would have expected that to be a given, if indeed the trucks had moved from Lusaka to Kitwe at his instance as alleged. • 5.10 When cross examined, the Plaintiff testified that the equipment hire agreement in clause v. provided for Mwaiseni to charge him K7000 per truck per day but he conceded that Mwaiseni had not invoiced him as such. J17 5.11 I find that strange as if indeed the trucks were dispatched to Kitwe and remained there for as many days as alleged, M waiseni surely would have levied the agreed charge for them. 5.12 The Plaintiff agreed when cross examined that there are several toll gates between Lusaka and Kitwe whose receipts could have con.firmed the trip of the trucks to Kitwe (and back). He however conceded that he did not produce any such receipts before Court. • S .13 When asked how he expected the Court to believe that the trucks went to Kitwe given the evidential gaps, the Plaintiff testified that he would not have sent a list of trucks for clearance if they were not on site. 5.14 l am also not persuaded that the copies of invoices produced by the Plaintiff said to be from Mwaiseni [for the trucks allegedly provided to the Defendant] are of any significance as: • 5.14.1 there is nothing on the narration that speaks to the trucks being supplied for business in Kitwe or that it relates to the equipment hire agreement between the Plaintiff and Mwaiseni; 5.14.2 there was no witness called from Mwaiseni to confirm that the trucks were actually supplied; and J18 5.14.3 the Plaintiff admitted that Mwaiseni has never made any demand to him for payment, which is strange as if at all the invoices were genuine one would have expected Mwaiseni to take steps to recover the significant amounts involved. 5.15 Further, I am not persuaded that the equipment hire agreement between Mwaiseni and the Plaintiff is of any relevance as firstly, the Defendant is not privy to it. Secondly, the agreement does not state • that it otherwise has anything to do with the Plaintiff's business with the Defendant instead of the Plaintiff's unrelated dealings in Kit'-"Ve. 5.16 Based on the foregoing, it appears to me that the Plaintiff requires this Court to infer that the trucks were actually provided by him. 5. 1 7 However, it is not the province of this Court to speculate and fill in the blanks through assumptions where the evidence is deficient. I • am fortified in that regard by the decision of the Constitutional Court in Richwell Siamunene v Sialubalo Gift<1 ). 5.18 Accordingly, I find that the Plaintiff has failed to prove (on a balance of probabilities) that he actually provided the trucks as alleged. Without any such finding there is no basis to make any secondary finding about whether the Defendant is bound to honour the cost. J19 The contention of whether the Plaintiff is entitled to relief from the Defendant or whether the Defendant is entitled to relief against the Plaintiff 5.19 Given the failure of the Plaintiff to prove that he actually supplied the 12 trucks to the Defendant, there is no basis for relief for the Plaintiff against the Defendant. 5.20 The Supreme Court presided by Mambilima CJ in Tresford Chali • v Bwalya E.K. Ngandu(2 gave the following guidance on the law J relating to pleading and proving of fraud: "The law regarding the pleading and proving of fraud is well settled. It is trite that fraud must be distinctl,y alleged and proved. This is evident from Order 18/8 / 16 of the RULES OF THE SUPREME COURT, 1999, which states that 'Any charge of fraud and 1nisrepresentation must be pleaded with the utmost particularly. ... ' Order 18/ 12/ 18 of the RULES OF THE SUPREME COURT, 1999, is also couched in similar terms. It provides that 'fraudulent conduct must be distinctly alleged and distinctly proved, and it is not • allowable to leave fraud to be inferred from the facts. In addition, the standard o,f proof for an allegation of fraud is higher than proof on a balance of probabilities, but lower that proof beyond reasonable doubt. A case on point in this regard is our decision in the case of SITHOLE VTHE STATE LOITERIES BOARD where we held that if a party alleges fraud) the extent of the onus on the party alleging is greater than a simple balance ofp robabilities." (Emphasis added) J20 l 5. 21 As far as conceptual definitions go the decision of the Supreme Court delivered by Wood JS in Jonathan Van Blerk v AG & Ors<3 ) is equally useful and I quote: "We are clear in our mind that fraud is a deceptive act done intentionally by one party in order to influence or induce another party to believe or accept the existence of a certain state o_f affairs when the actual state of affairs otherwise. A misrepresentation on the other hand is a representation of a miss-statement innocently or • negligently which wrongfully persuades another party to accept the existence of a given state of affairs. Both instances involve untruthfulness. n (Emphasis added) 5.22 Quite clearly therefore a litigant such as the Defendant who alleges being induced by fraudulent misrepresentation must in order to succeed: i) distinctly plead with particulars in the statement of claim the acts complained of; and • ii) through evidence, prove beyond a balance of probabilities that a deceptive act intentionally done by the Plaintiff influenced, induced or persuaded the Defendant to accept the existence of a certain state of affairs which state of affairs was actually different from that accepted. J21 . - 5.23 Turning to the case before Court, the Defendant's defence and counterclaim in paragraphs 21-23 reads: "21. The contract dated 15th June 2022, v.Jhich was signed by the Defendant and Netsim Solutions and Logistics Limited was signed as a result of misrepresentations and fraud by the Plaintiff herein. PARTICULARS OF MISREPRESENTATION I. The Plaintiff herein, knowingly and purposefully, represented himself to be a director and • shareholder of Netsim Solutions and Logistics Limited, when the said company was and is not duly incorporated with PA CR/',. as a limited company. II. The Plaintiff herein, knowingly and purposefully, represented to the Defe nda nt that Netsim Solutions and Logistics Limited was a duly incorporated company at PACRA in line with the Companies Act, when the said company was not incorporated but was simply a business name and whose registered nature of business was not in-line with mining or minerals. III. The Plaintiff herein, knowingly and purposefully, • represented to the Defendant's official, prior to the signing of the contract, that it oiuned and operated a factory used for re.fining minerals, which is a pre-requisite to signing the contract, when in fact they did own any factory and it was only discovered after signing the contract that the said factory was owned by another company which was already an off-taker. J22 . ' .. N. The Plaintiff herein, knowingly and purposefully, during negotiations, the Plaintiff purported to be representing Chinese Investors when he was not. Further, every time the Defendants sought to have a meeting with the Chinese Investors, the Plaintiff gave excuses as to why they could not make it for the meeting and till date they have never met the same Investors. V. The Plaintiff herein, knowingly and purposefully, proceeded to procure a contract with the Defendant on behalf of Netsim Solutions and Logistics Limited, knowing that the same entity was and is non-existent. • 22. Due to the Plaintiff's representations, the Defendant was induced into signing the said contract. 23. As a result, the Defendant has suffered loss and damage as a result of the Plaintiff's misrepresentation.,, 5.24 I therefore find that the Defendant has met the first threshold of distinctly pleading and particularizing the alleged fraud. 5.25 Moving on to evidence, the Defendant's sole witness Mr Hinyama • testified that he actually avoided dealing with the Plaintiff. Accordingly, I cannot see how Mr Hinyama's evidence is relevant to the Defendant's allegation of fraudulent misrepresentation by the Plaintiff. J23 • ' 5.26 Further, there was no evidence led of any loss or injury whatsoever sustained by the Defendant as a result of its limited interaction with the Plaint iff. 5.27 Consequently, there is no evidential basis for relief for the Defendant against the Plaintiff whether for alleged fraudulent misrepresentation or otherwise . • 6 CONCLUSION AND ORDERS 6.1 The Plaintiff's case against the Defendant fails and there is no basis for any other form of relief in his favour under s.13 of the High Court Act(t). 6.2 The Defendant too has failed to prove its counterclaim against the Plaintiff and there is no basis for any alternative relief against the Plaintiff under the stated provision of the High Court Act(1 ) . • 6.3 Turning to the issue of costs of litigation. They are a matter of discretion for the Court in terms of Order 40 Rule 6 of the High Court Rules(l). J24 • • • 6.4 As for the guidance in the exercise of that discretion, I heed the Supreme Court's judgment in A/rope Zambia Limited v Anthony Chate & Ors (4 where Wood, JS aptly stated: ), "It is a settled principle of law that a successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted costs." (Emphasis added) 6.5 In the case at hand, the Plaintiff and Defendant having failed in the • claim and counterclaim, respectively, it is fair and just that each party bears their own costs of this action and so it shall be. _________$. .d.J. _____ f ~ Dated at Lusaka this ----------------- da K. CHENDA Judge of the High Court • J25