Apogo Inter-Trade Limited v Inter- African Network for Human Rights and Development (1999/HP/A11) [2001] ZMHC 4 (4 September 2001)

IN THE HIGH COURT FOR ZAMBIA 1999/HP/All AT THE PRINCIPAL REGISTRY AT LUSAKA (CIVIL JURISDICTION) BETWEEN: - APOGO INTER-TRADE LIMTED Plaintiff AND THE INTER-AFRICAN NETWORK FOR HUMAN RIGHTS AND DEVELOPMENT Defendant BEFORE THE HONOURABLE MR. JUSTICE PETER CHITENGI IN CHAMBERS AT LUSAKA ON THE 4TH DAY OF SEPTEMBER, 2001. For the Plaintiff: For the Defenda11t: Mwanak:atwe Messrs JMM Consultants Shonga Messrs Shamwana & Company JUDGMENT Case referred to: - 1. Nkhata Vs Attorney General (1966) ZR 124 This is an appeal by the Defendant against the decision of the Subordinate Court, Lusaka. As revealed by the evidence of Mr. Okiror Oumo, the Principal Consultant of the Plaintiffs, Mr. Oumo approached Mr. Mwanajiti, the Executive Director of the Defendant, on 23rd March, 1998 for consultancy work. Mr. Mwanajiti asked Mr. Oumo to bring a sample of his works in order for him to determine his suitability. On 24th March, 1998 Mr. Oumo took two samples of his works to Mr. Mwanajiti. The first sample was on Rwanda Holocust and its implications on regional cooperation. The second was USAID assignment strategy plan for Zambia 1998 - 2002. Mr. Mwanajiti asked Mr. Oumo to leave the samples to be studied. On 26th March, 1998 Mr. Mwanajiti telephoned Mr. Ou.mo to come to his office. When Mr. Oumo went to see Mr. Mwanajiti, the latter expressed satisfaction with the work and hired Mr. Oumo to write a political report on the assignment of the MMD Government with particular reference to the oppression of the Judiciary, Executive and the Legislature. The second part of the report was to deal with Donor Community performance in Zambia. The report was to be presented within six weeks and payment for the report was to be made within two weeks after presentation. Mr. Oumo did research and produced a good report which he presented to Mr. Mwanajiti on 8th May, 1998. Mr. Mwanajiti then asked for time to enable him to read and refer the reports to one of the Consultants. On 6th June, 1999 Mr. Mwanajiti called Mr. Oumo to his office. Mr. Mwanajiti was very happy and extremely impressed with the report and said he had submitted it to another Consultant and that the report was a good report. Mr. Oumo found the report in the Library. Mr. Mwanajiti then said payment will be ready in two weeks' time. On 25th July, 1998 Mr. Oumo presented an invoice to Mr. Mwanajiti demanding payment for 3,000 USD payable in 7 days. There was no reply to this invoice, until February 1999 when Mr. Mwanajiti wrote disclaiming everything. On 9th February, he wrote Mr. Mwanajiti threatening legal action. Mr. Mwanajiti quickly replied that he was ready to go to Court. Mr. Owno then commenced this action. The contract was verbal and payment was discussed and Mr. Mwanajiti agreed to pay 3,000 USD. The evidence on behalf of the Defendant was given by Mr. Ngande Mwanajiti the Executive of the Defendant. The sum and substance of Mr. Mwanajiti's evidence is that whenever there is need for Consultancy the relevant officer will bring the need to the attention of Mr. Mwanajiti and that of his other colleagues. If the need is confirmed a draft contract will be made in accordance with the Defendant's procedures. This is done to avoid demands which are not properly approved. There has been no situation where anybody has been awarded a job without a contract duly signed. Before any Consultant is engaged and a contract is executed. The Defendant discusses with the prospective Consultant and agrees with him on the fees to be charged. This is done because everything is budged for and must be within the budget. Mr. Mwanajiti knew Mr. Oumo before he knew the Plaintiff. In 1998 Mr. Oumo went to see the Defendant saying he had been referred to the Defendant by one Dr. Miles Tudor, Governance Advisor to USAID. Mr. Oumo explained his function and said the Defendant may use his services. Mr. Mwanajiti told Mr. Oumo that the Defendant engages Consultants but told him that the Defendant's conditions were not lucrative as those of the other people Mr. Oumo said he had done work for. Mr. Mwanajiti also told Mr. Oumo that the Defendant would like his past work to assess whether they could work with him. Mr. Oumo then said he would bring samples of some of his works next time he came to the Defendant. Mr. Mwanajiti had the opportunity to view Mr. Oumo's past work which he gave back to Mr. Oumo. As there was no way to tell that Mr. Oumo was the author of the documents. Mr. Mwanajiti told Mr. Oumo that the Defendant had a team of Consultants working on one of their annual documents and that if Mr. Ou.mo was to be part of that team he had to provide samples of his works on Governance in Zambia. This topic was chosen because it was one of the easiest to deal with. At that time Mr. Mwanajiti introduced Mr. Oumo to the Defendant's Information Officer who is responsible for the project, Mr. Oumo produced the sample required. The sample was called Afronet and Apogo. An assessment of the MMD and Donor Good Governance performance. The report cover bore the name Apogo and Afronet and Mr. Mwanajiti pointed out that that was not how the Defendant received works but since it was a sample he did not waste much time on it. He believed the report was cleared off the desk like other documents. Mr. Oumo got in touch with Mr. Mwanajiti later and he told Mr. Oumo that he had not looked at the book and told Mr. Oumo to call so that they could discuss. Mr. Mwanajiti did not read the document entirely. Thereafter, Mr. Mwanajiti travelled on duty. Later Mr. Mwanajiti got an invoice that the Defendant owed Mr. Oumo money. Mr. Mwanajiti never executed any contract with Mr. Oumo. All documents and books received in the library are stamped 11received" and 11Afronet". In addition the document is entered in list of acquisitions. The report in question does not bear the Defendant1s markings. The documents were not processed in the library. Documents kept in the library will look like Exhibit MB, MC and MD. The Defendant is not indebted to the Plaintiff. On this evidence the trial Magistrate found that there was a verbal agreement between the parties and order the Defendant to pay the 3,000 USD the Plaintiff claimed. The Defendant now appeals against the whole of the judgement of the court below. Counsel relied on the submissions they filed before the court below. Mr. Mwanakatwe, learned counsel for the Plaintiff only emphasized that the Court had no cause to interfere or vary the finding of the Magistrate who had the opportunity to physically observe the witnesses and that the Magistrate1s assessment of the evidence was fair. Mr. Shonga, learned Counsel for the Defendant highlighted the fact that the amount of 3,000 USO was never agreed upon by the parties. If there was an agreement as to the amount the Plaintiff would not exhibit UN rates. I have perused the evidence, the papers on file and submissions of Counsel. From the Judgment of the Court below it is clear that the Magistrate decided the case on credibility and made findings of fact. The trial Magistrate found as a fact that there was an agreement between the parties as alleged by Mr. Oumo and that the Defendant was to pay the Plaintiff 3,000 USD. The conditions for reversal of a finding of fact of a trial Judge were settled by the Court of Appeal in the case of Nkhata Vs The Attorney General(]) when that Court stated: - A trial Judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the appellate court that: - (a) by reason of some non-direction or misdirecJion or otherwise the Judge erred in accepting the evidence which he did accept; or (h) in assessing and evaluating the evidence the Judge has taken into account some matter which he ought not to have taken into account, or Jailed to take into account some matter which he ought to have taken into account; or (c) it unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the Judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or (d) in so far as the Judge has relied on matter and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer. Of course the case of Nkhata (1) was dealing with an appeal form the High Court but the principles stated in that case apply equally to an appeal from the Subordinate Court to the Supreme Court. As Mr. Mwanakatwe rightly submitted the trial Magistrate had the advantage of seeing the witnesses give evidence and he decided whom to believe and made the f mdings. Therefore, the trial Magistrate's findings can be interferred with only if one or more of the factors stated above in the Nkhata case(l) are present. From the trial Magistrate's Judgment it is clear to me that in his assessment of the evidence the trial Magistrate failed to take into account matters which he ought to have taken into account but he took in account some matters which he ought not have taken into account. One of the reasons which swayed the trial Magistrate was that Mr. Oumo cannot be made to do free work simply because he was a refuge. Mr. Oumo did not in his evidence make any complaint to that effect. In any case the Plaintiff was not Mr. Oumo. More importantly the trial Magistrate did not take into acc0tmt the nature of the parties involved. Was it likely, :from Mr. Mwanajiti's explanation of the status of the Defendant, that an organisation like the Defendant would enter into oral contracts to spend an amount of money like 3,000 USD? In the circumstances the trial Magistrate should not have dismissed Mr. Mwanajiti1s evidence on the procedures and requirement of written contract in the manner he did. Further, if all the documents officially received in the library by the Defendant are stamped and recorded, why were the documents prepared by Mr. Oumo not stamped and recorded for a long time up to the date the parties went to Court if they were in fact works accepted by the Defendant as work done under an agreement to be paid for? The trial Magistrate dismissed the issue whether the documents were samples or not by that saying the Plaintiff rendered services and that he should be remunerated whether the document was a sample or not. But the issue whether the docwnents were samples or not was critical to the issue whether in fact the parties entered into an agreement. If the documents were samples then the probability is that there was no agreement entered into by the parties. Of course, labour would be spent on a sample but a sample is not for the benefit of the prospective customer. Had the trial Magistrate properly directed himself on the evidence he would have found that the fact that the two documents were not stamped by the Defendant and recorded in the usual manner lent weight to Mr. Mwanajiti's evidence that they were only samples. The Magistrate also failed to take into accom1t the fact that throughout his evidence in chief, Mr. Owno did not make any mention that they agreed on 3,000 USD payment. The amount of payment came only during cross-examination when in fact that was one of the main issues Mr. Oumo should have mentioned in examination in chief. ... On the evidence the Plaintiff did not prove on a balance of probabilities that there was a contract between himself and the Defendant. • • Mr. Shonga raised the issue of privy to a contract. Mr. Shonga submitted and argued that the Plaintiff was not a party to the alleged contract and that Mr. Ourno was acting on his own behalf. I agree with these submissions. Both the evidence of Mr. Oumo and Mr. Mwanajiti puts beyond doubt Mr. Oumo was acting in his own behalf. Mr. Oumo never at any stage in his dealing with Mr. Mwanajiti reveal that he was acting on behalf of the Plaintiff, Apogo Inter-Trade Consultants Limited came to light only after the dispute between the parties arose. The Plaintiff not being a party to the alleged agreement which has not been proved had no right to sue the Defendant. On this ground, even if there was an agreement as allegedly, the Plaintiff could not succeed because it was not a privy to the contract. For the reasons I have given I allow the appeal. The Judgment of the Court below is quashed and set aside. Costs will abide the event and to be taxed in default of agreement. DELIVERED IN CHAMBERS AT LUSAKA TIDS 4TH DAY OF SEPTEMBER, 2001. 7