Carmine Safaris Zambia Ltd and Anor v Zambia National Tender Board and Ors (Appeal 137 of 2003) [2005] ZMSC 40 (9 November 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 137 OF 2003 HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW AND IN THE MATTER OF: APPLICATIONS FOR HUNTING CONCESSIONS IN MUMBWA, NYAMPALA AND SICHIFULO GAME MANAGEMENT AREAS AND MW ANY A, CHIFUNDA AND UPPER LUPANDE GAME MANAGEMENT AREAS BETWEEN: CARMINE SAFARIS ZAMBIA LTD HARMONIOUS HAVEN ZAMBIA LTD I 1st appellant 2nd APPELLANT And ZAMBIA NATIONAL TENDER BOARD ZAMBIA WILDLIFE AUTHORITY THE ATTORNEY GENERAL LUANGWA CROCODILE SAFARIS LTD SOFRAM SAFARIS LIMITED LEOPARD RIDGE SAFARIS LIMITED 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT 5th RESPONDENT 6th RESPONDENT CORAM: SAKALA, CJ„ CHIBESAKUNDA AND CHITENGI, JJS 21st June, 2005 and 9th November, 2005 For the Appellants: Mr. M. Mwenye of Kajimanga and Company with Mr. S.. Sikota of Central Chambers For the 1st, 4th and 5th Respondents: Mr. W. Mubanga of Permanent Chambers For the 2nd Respondent: Ms. B. Majula, Legal Counsel For the 3rd Respondent: N/A For the 6th Respondent: Mr. W. M. Kabimba of Kabimba and Company JUDGMENT SAKALA, CJ., delivered the judgment of the Court. Cases referred to; 1. Frederick J. T. Chiluba vs. Attorney General Appeal No. 25 of 2002 7^y2. Associated Provincial Picture Houses Limited vs. Wednesbury Corporation [1947] ALL ER 60 Nyampala Safari (Z) Limited and 4 Others vs. Zambia Wildlife 3. । Authority and 6 Others SCZ No. 6 of 2004 ’ This is an appeal against the judgment of the High Court dismissing the Appellants’ application for Judicial Review of the decision of the 1st, 2nd and 3rd Respondents made on 28 November, 2002, awarding tenders for Safari Hunting Concessions to the 4th, 5th and 6th Respondents and others. There is also a cross­ appeal by the 1st Respondent on the question of costs not awarded to them. For convenience, the Appellants will be referred to as the 1st and 2nd Applicants, respectively; while the Respondents will be referred to as the 1st to the 6th Respondents, respectively, which they were in the Court below. Aggrieved by the decision of the 1st, 2nd and 3rd Respondents, the Applicants commenced these proceedings by way of an application for Judicial Review. They sought the relief of an Order for Certiorari and or Mandamus to move into the High Court for the purpose of quashing, the decision of the Zambia National Tender Board recommending to the Controlling Officer, who is the Permanent Secretary in the Ministry of Tourism, Environment and Natural Resources and the Director-General, Zambia Wildlife Authority, to award Hunting Concessions in the Mumbwa, Nyampala, Sichifulo, Mwanya, Chifunda and Upper Lupande Game Management Areas. Further or in the alternative; the Applicants sought a declaration that the Central Tender Committee of the Zambia National Tender Board complies with the recommendation of its Secretariat and direct the Controlling Officer and the Director General to award Hunting Concessions in the Mumbwa Game Management Area and Upper Lupande Game Management Area to Carmine Safaris Zambia Limited and Harmonious Haven Zambia Limited, respectively. I ■ The grounds upon which the reliefs were sought were that: The decision of the Zambia National Tender Board authorizing the Permanent Secretary in the Ministry of Tourism, Environment, and Natural Resources and the Director General of Zambia Wildlife Authority to offer contracts for Hunting Concessions in the Mumbwa Game Management Area to Swanepoel and Scandrol Safaris and the Upper Lupande Game Management Areas to Mangomba Safari and Nyampala Game Management Area to Leopard Ridge Safaris is irrational, irregular and procedurally incorrect in that the Technical Committee and the Secretariat of the Zambia National Tender Board, which evaluated the bids, recommended Carmine Safaris Zambia Limited for Mumbwa, Harmonious Haven Zambia Limited for Upper Lupande, and Swanepoel and Scandrol for Nyampala, respectively. The relevant facts leading to this appeal and the cross-appeal as contained in the respective parties’ affidavits and oral evidence were not in dispute. Sometime in December, 2001, the 2nd Respondent, through the Zambia National Tender Board, the 1st Respondent, invited for bids for the award of Safari Hunting Concessions in Zambia’s Prime and Secondary Game Management Areas through a tender document reference No. TB/ORD/072/01-549. It was a condition of the tender that Applicants would be evaluated and scored against certain specified criteria based on the Technical and the Financial Components Evaluations. A successful bidder had to attain a certain minimum score in both the Technical and Financial Components Evaluations. The 2nd Respondent’s representatives, together with the representatives drawn • from other government institutions, including representatives from the Zambia Chamber of Commerce and Industry and the Tourism Council of Zambia, among others, constituted the Technical Evaluation Committee which considered, evaluated and scored each bidder’s responsiveness to certain criteria. The results of the recommendations of the Technical Evaluation Committee were submitted to the Controlling Officer in the Ministry of Tourism Environment and Natural Resources. It was common cause that the 1st Applicant applied for Mumbwa, Nyampala and Sichifulo Game Management Areas in that order, while the 2nd Applicant applied for Mwanya, Chifunda and Upper Lupande Game Management Areas, also in that order. However, sometime in March, 2002, the Minister of Tourism, Environment and Natural Resources annulled the tenders for Hunting Concessions and purported to allocate the Hunting Concessions administratively. This action by the Minister prompted the 6th Respondent and four others to apply to Court for Judicial Review under cause No. 2002/HP/0231. In the ensuing Court action, the Minister’s decision was quashed. The Court ordered that the Tender for the award of Safari Hunting Concessions should proceed in accordance with the law. In the initial Technical Evaluation, the 1st Applicant and another were not evaluated for allegedly contravening the provisions of the Zambia Wildlife Act. This also led to a Court action in cause No. 2002/HP/0479 in which the High Court, on 28th August 2002, ordered that it be evaluated and considered for the areas applied for. According to the affidavit evidence in support of the application, following the two High Court decisions, the 1st Respondent verified the evaluation of the Tender for Hunting Concessions. The 1st Applicant and other bidders had been wrongly disqualified. But on 29th August 2002, the 1st Respondent recommended to the Central Tender Committee to authorize the Controlling Officer and the Director General of the 2nd Respondent to award the Hunting Concession for Mumbwa Game Management Area to the 1st Applicant. The Applicants produced a document marked exhibit “ANM4”, dated 29th August, 2002, known as BOARD PAPER NO. 1, containing a copy of the Recommendations to this effect. At the same time, according to the affidavit evidence in support, the 1st Respondent reiterated its earlier recommendation for the Central Tender Committee to authorize the Controlling Officer and the Director General of the 2nd Respondent to award Upper Lupande to j iL ? o j the 2 Applicant as approved on 5 March, 2002. Again in support of this, the Applicants referred to the document marked exhibit “ANM4”. Paragraphs 22-25 of the affidavit in support of the application state as follows: (sic) “22. That surprisingly, the Central Tender Committee of the Zambia National Tender Board without any reason and or justification at all J6 totally ignored the recommendations and instead directed and authorized the Controlling Officer, Permanent Secretary in the Ministry of Tourism, Environment and Natural Resources and the Director General of Zambia Wildlife Authority, to offer and award contracts for Hunting Concessions in Mumbwa Game Management Area to Swanepoel and Scandrol Safaris, Upper Lupande Game Management Area to Mangomba Safaris, Nyampala Game Management Area to Leopard Ridge Safaris and Sichifulo Game Management Area to Alfa Recreation Safari Limited. Produced and now shown marked exhibit ANM5 is the letter from the Secretary of the Zambia National Tender Board to the Controlling Officer, Permanent Secretary in the Ministry of Tourism, Environment and Natural Resources; 23. That Leopard Ridge Safaris and Alfa Recreation Safari Limited did not qualify for consideration in the bidding process at the very initial stage as they did not respond positively to the special instruction to bidders. They were specifically disqualified for not furnishing audited or certified accounts as per special instructions to bidders. Produced and shown marked “Exhibit ANM6” is a copy of an extract from the Evaluation Report; 24. That the Central Tender Committee of the Zambia National Tender Board also for no reason at all chose to direct and authorize the Controlling Officer and the Director General to award and offer contracts, contrary to recommendations, to Mangomba Safaris for Upper Lupande Game Management Area, and Luangwa Crocodile Safaris Limited for Chifunda Game Management Area. Produced and now shown marked “ Exhibit ANM7” collectively are letters to various J7 companies which had been evaluated as non responsive but through manipulation of the Central Tender Committee were awarded contracts; and 25. That both Mangomba Safaris and Luangwa Crocodile and Safaris Limited were companies which were non responsive in terms of the Bidding Document and could not therefore be considered for award of contracts. The Evaluation Report “Exhibit ANM6” at page 40 and 41 shows that these companies had not been responsive.” The affidavit evidence in opposition, by the Board Secretary of the 1st Respondent’s Board, on the other hand, stated that Board Paper No. 1, exhibit “A^M4” was a Confidential document; that it was not the document on which the award of the tenders was done because it was rejected by the Board on account that it had mistakes and had been replaced; that the document relied on by the Applicants was a wrong document; and that the tenders were awarded on merit and the Applicants fell short in the evaluation and the tenders were properly awarded to the highest scoring bidder on merit. Further affidavit evidence in opposition by the Director-General of the 2nd Respondent stated that apart from evaluating bids previously not evaluated, some bidders whose bids lacked certain information were eliminated; that the resultant Technical Financial Evaluations scores were weighted in favour of the most technically competent bidder and recommendations for allocations of Hunting Safari Concessions were made to the Controlling Officer under BOARD PAPER NO. 1, dated 27th November, 2002, marked “MHK4”; that since according to that document, the 1st Applicant had a low Technical Evaluation score of 43.5%, they could not be considered for Mumbwa Game Management Area, which was awarded to Swanepoel and Scandrol, who had a technical score of 70.4% as per report of the technical scores of bidders in respect of Mumbwa Game Management Area exhibited and marked “MHK5”; and that the 1st Applicant’s Technical Evaluation was still lower in comparison to that of Leopard Ridge Limited, who scored 73.6% as against the 1st Applicant’s 43.5% for Nyampala area awarded to Leopard Ridge Development Company Limited. « Paragraphs 22-28 of the further affidavit in opposition state as follows: “22 . That the document marked ‘ANM4’ and exhibited in the Applicant’s Affidavit, upon which they are basing their claims, was withdrawn and replaced with the document dated 27th November, 2002; i । 23. That it was the document of 27 November which was presented to the Board of the Zambia National Tender Board and upon which the decision for the allocations is based; 24. That the Applicant’s application is premised on a document dated 29 August, 2002 which document was withdrawn and replaced with the document dated 27 November 2002; 25. That with regard to the Second Applicant, and in relation to paragraph 17 of the Affidavit verifying facts, I wish to state that Upper Lupande has not been awarded to Kwalata Safaris, but to Mangoma Safaris who had a technical score of 59.7% as opposed to the Second Applicant’s technical score of 58.5%. That now exhibited and marked ‘MHK6’ is an extract of the technical scores of the Second Applicant and those of Mangoma Safaris the successful bidder; J9 That the Second Applicant is also basing its claim on document ‘ANM4’ which document was replaced by the document of 27 November, 2002; 27. That the Controlling Officer was thus in order in awarding the Hunting Concessions as she did on 28 November, 2002; and 28. That at any rate, the Contracts for the Hunting Concessions were awarded on 28 November, 2002 by the Controlling Officer while the Applicants commenced their action on 23 December, 2002 after the contracts had already been awarded. Exhibited here and marked ‘MHK7 collectively’ are letters awarding the Contracts for Safari hunting issued j by the Controlling Officer on 28 November, 2002.” We have very carefully perused the record of appeal. We have not been able to find any affidavit in reply to the two affidavits in opposition. We note, however, that Mr. Acme Nat Mwenya, in addition to swearing a joint affidavit on behalf of the Applicants, also gave viva voce evidence. This witness gave his occupation as the Director of the 1st Applicant. Much of his oral evidence in chief was a repetition of his affidavit evidence in support of the application. However, in cross-examination, Mr. Mwenya explained that document exhibit “ANM4”, dated 29th August, 2002, was found in his mail box “assumingly sent by a good Samaritan”. He agreed that the document was confidential but that there were no mistakes. He admitted that the 1st Applicant’s score was 43%; while that of the 2nd Applicant was 58.5%. This witness concluded his evidence in cross-examination as follows: “The score for Swanepoel and Scandrol Safaris Limited was 70.4%. The bids are not given to the highest scoring bidder. The bids are given to the highest scoring bidder who also bids well on the price. I agree we were beaten on the scoring.” The learned trial Judge addressed his mind to the affidavit, oral and documentary evidence. He considered the principles governing Judicial Review as enunciated by this Court in the case of F. J. T. Chiluba vs. The Attorney-General^0 . Then the trial Judge stated as follows: “In my view, the confusion in this application was triggered by the : characterisation of a recommendation as a determination. A 1 recommendation is a suggestion or advice, which can be rejected or accepted by the recipient. For the court to order an inferior body to act on the recommendation, or advice is tantamount to usurping the ‘ deter m in ative power ’ of that inferior body and this court will be abusing its powers by so doing. The Zambia National Tender Board therefore rightly rejected the recommendation or advice of 29th August 2002 ANM4, which triggered this action by the applicants and they rightly accepted the subsequent recommendation or advice of the Technical Committee. There is no want of jurisdiction nor excess of jurisdiction. There was no unreasonableness as they picked the High scores as admitted by the applicants witness. There was no procedural impropriety for the foregoing the application for “Judicial Review must fail. ”(sic) JI 1 The appeal to this Court is based on three grounds. These are: That the lower Court erred in law and fact when it held that there was no procedural impropriety in the 1st and 2nd Respondents granting Hunting Concessions to companies which were evaluated to be non responsive and /or ineligible contrary to Clauses 3.4, 3.4.1, 3.6 and 3.10 of the 1st and 2nd Respondents bidding documents; That the lower Court erred in law and fact when it decided that the 1st and 2nd Respondents had absolute discretion to accept or reject recommendations contrary to their own procedure and the rules of natural justice; and That the lower Court erred in law and fact when it decided that it was called upon to inquire into the merits of the 1st Respondent’s decision despite the Applicants making it clear in their Notice of Application and evidence that they were challenging the procedural propriety of the 1st and 2nd Respondents decision to grant Hunting Concessions to ineligible and non-responsive i conlpanies. The Applicants filed detailed written heads of argument augmented by oral submissions based on the above three grounds. The summary of the written submissions on ground one is that the 1st Respondent’s procedure on bidding for and allocation of Hunting Concessions, as per their bidding document exhibited, were very clear; that any bidder who did not comply with the requirements of the tender document was not eligible for further consideration; that the 4th and 6th Respondents and others should not have been considered further in terms of the bidding document; and that contrary to the tender rules, the 1st and 2nd Respondents granted Hunting Concessions to the 4 ,5 and the 6 Respondents and others, respectively. X1- xl_ X I, It was also pointed out on ground one that on the authority of this Court in the case of Frederick J. T. Chiluba vs. Attorney-General,(1) which case upheld the decision in Associated Provincial Picture Houses Limited vs. Wednesbury Corporation^; one of the grounds, upon which a decision of an administrative J12 tribunal can be reviewed, is procedural impropriety. It was submitted that the 1st and 2nd Respondents acted contrary to law and procedure in awarding Hunting Concessions to non-responsive and ineligible companies. The oral submissions by Mr. Mwenye on ground one were a repetition of the written heads of argument. The gist of the written heads of argument on ground two was that the 1st and 2nd Respondents issued Board Paper No. 1,exhibit “ANM4” on 29th August 2002 in which the Central Tender Committee recommended that the 1st Applicant be granted Hunting Concession in Mumbwa and the 2nd Applicant be grated Hunting Concession in Upper Lupande game Management Area; that document exhibit “MHK4” dated 27th November 2002, purporting to replace document exhibit “ANM4” only contains thp decision of the Board of Directors of the 1st Respondent and not the Central Tender Committee; that it is within the exclusive province of the Central Tender Committee to award tenders where the provincial, parastatal or Ministry Tender Committee have no jurisdiction; and that the Board of Directors of the 1st Respondent has no power to veto the decision of the Central Tender Committee. It was submitted that the Board of Directors of the 1st Respondent had no right to veto any/or throw out the decision of the Central Tender Committee, which has final determinative power when it sits to adjudicate tenders. It was further submitted that exhibit “ANM4,” Board Paper No.l, dated 29 August, 2002, was not a mere recommendation but a determination which could not be rejected. In the oral submissions by Mr. Mwenye, it was contended and conceded that in document “ANM4”, there was a recommendation but that the report was not a recommendation. The upshot of ground three is that the Applicants sought the relief of an order of certiorari in their application for Judicial Review; while claiming mandamus in the alternative. It was submitted that the Court abdicated its duty to adjudicate the matter by refusing to bring the decision of the 1st and 2nd Respondents into the High Court and quash it for being procedurally incorrect. The 1st, 4th, 5th, and 6th Respondents filed joint written heads of argument in which they responded to all the three grounds of appeal together. They supported the finding of the trial Court that there Was no want of jurisdiction nor excess of jurisdiction and no unreasonableness as the 1st and 2nd Respondents picked the highest scores as admitted by the applicants witness; and that there was no procedural impropriety in the granting of the Hunting Concessions to the successful bidders. , It was contended on behalf of the Respondents that it was common cause that the' 1st Applicant’s bid was not initially evaluated but that following the consent order of 30th April, 2002, the 1st Applicant was evaluated but had a low technical score of 43.5% and could therefore not be considered for Mumbwa Game Management area, which was awarded to SwanepoeTand Scandrol, which had a technical score of 70.5%. It was further contended that the 2nd Applicant’s bid was also evaluated in respect of Upper Lupande after the consent order but obtained 58.5%, as against Mangomba Safaris, who had the highest score of 59.7%. It was, thus, submitted that from the facts which were common cause, there was no procedural impropriety on the part of the 1st and 2nd Respondents in granting the Hunting Concessions to the 4th, 5th, 6th Respondents and others, as the grant was based on merit and the Applicants fell short in the valuation process. It was further submitted that exhibit “ANM4,” Board Paper No. 1, dated 29th August, 2002 and exhibit “ANM6” dated 28th February 2002, were rejected and replaced by the 1st Respondent’s Board. Hence, they were not used at the Board Meeting of 28th November, 2002, which made the decision to award the Hunting Concessions to the successful bidders. In this connection, it was pointed out J14 that the document used at the Board Meeting of 28th November 2002, was Board Paper No. 1, exhibit “MHK4”, dated 27th November 2002. Mr. Kabimba, for the 6 and 7 Respondents pointed out in his oral submissions that the issue of non-responsiveness did not arise in the Court below and was not in dispute but that the Court addressed its mind to the affidavit verifying facts on behalf of the Applicants. Mr. Kabimba further pointed out that this case was on all fours with the case of Nyampala Safaris (Z) Limited and 4 Others vs, Zambia . Wildlife Authority and 6 Others,(3) where the same tender process was challenged against the same Respondents and that it was the same valuation process which was upheld by this very Court in Nyampala case. I 1 Mr. Mubanga, for the 1st, 4th and 5th Respondents, before commencing his oral submissions, informed the Court that it was the intention of all the Respondents to be part of the cross-appeal that costs should have been awarded to the Respondents as the same follow the event. In responding to the submissions on behalf of the Applicants, Mr. Mubanga argued that the trial Court was on firm ground in rejecting the Applicant’s application for Judicial Review as admitted by their own evidence because document exhibit “ANM4”, dated 29th August 2002, was a wrong document because it had serious mistakes in it and had been replaced by document exhibit “MHK4”, dated 27(h November 2002, headed Board Paper No. 1. It was Mr. Mubanga’s submission that on the basis that all bidders, including the Applicants, had been evaluated according to the Technical Tender Evaluation Report, the appeal had no merit. Ms. Majula, on behalf of the 2nd Respondent, adopted the submissions of Mr. Kabimba and Mr. Mubanga. J15 We have very carefully considered the affidavit and documentary evidence on record, the submissions on behalf of the parties and the judgment of the trial Court. A careful analysis of the affidavit evidence and the submissions clearly shows that the Applicant’s case is based on document marked “ANM4”, while the Respondents case is based on document marked “MHK4”. It is common cause that both these I documents emanated from the 1st Respondent and were confidential documents. The Applicants’ case is that the 1st and 2nd Respondents acted contrary to law and procedure in awarding Hunting Concessions to the 4th, 5th, 6th Respondents and Others; and that according to Board Paper No. 1, dated 29th August, 2002, marked exhibit “ANM4”, the Central Tender Committee had recommended that the 1st Applicant be granted Hunting Concessions in Mumbwa, while the 2nd Applicant had been recommended to be granted Hunting Concessions in Upper Lupande Game Management area. It is also the Applicants’ case that document, exhibit “MHK4,” dated 27th November, 2002, purporting to replace document “ANM4”, only contained the decision of the Directors of the 1st Respondent and not the Central Tender Committee which has exclusive jurisdiction to award tenders and that the Board of the 1st Respondent had no powers to veto the decision of the Central Tender Committee. It would appear to us that the Applicants do not seriously dispute that document marked exhibit “MHK4”, dated 27th November 2002, replaced document exhibit “ANM4.” Perhaps this explains why the Applicants did not reply to the affidavits in opposition. The affidavit in opposition by Mr. Mouty Hapenga Kabeta, the Director-General of the 2nd Respondent, shows that the resultant Technical and Financial Evaluation scores were weighted in favour of the most technically competent bidder and the recommendations for allocations of Hunting Safari J16 Concessions were made to the Controlling Officer under a document dated 27th November, 2002, exhibited and marked “MHK 4”. The affidavit further shows that the Applicants had low technical evaluation scores. The affidavit also shows that Hunting Concessions were awarded by the Controlling Officer on 28th November, 2002. Although there was no affidavit in reply, Mr. Mwenya in his oral evidence on behalf of the Applicants, conceded, under cross-examination, that the bids are given to the highest scoring bidder who also bids well on the price. He further conceded that they were beaten on the scoring. i The Applicants’ application was for Judicial Review of the decision of the 1st and :2nd Respondents offering contracts for Hunting Concessions to the 4th, 5th, 6th Respondents and Others. The learned trial Judge in his judgment alluded to the basic principles underlying the process of Judicial Review. He found that there was no want nor excess of jurisdiction. He also found that there was no unreasonableness as they picked the highest scores as admitted by the Applicants’ witness. The present case, in so far as it relates to the issue of evaluating the Applicants bids, is on all fours with the case of Nyampala and 4 Others vs. Zambia Wildlife Authority and 6 Others(3). All the Respondents in the present case were also Respondents in the Nyampala case. In the Nyampala case, we reviewed the principles governing Judicial Review. One of the salient principles reviewed in that case is that the remedy of Judicial Review is concerned, not with the merits of the decision, but the decision-making process itself. J17 The Respondents’ case is that the document marked exhibit “ANM4”, dated th 29 August, 2002, contained mistakes and was replaced by document marked exhibit “MHK4”, on which the award of Hunting Concessions was based. The scores of the Applicants, according to document marked exhibit “MHK4”, fell short compared to the successful bidders, who were awarded Hunting Concessions. This fact was admitted by the Applicants’ witness. * The Applicants’ application was for Judicial Review. It is not for this Court to go into the merits of the replacement of document marked exhibit “ANM4”, with the document marked “MHK4”. । On the affidavit evidence in opposition, we are satisfied that after the Applicants challenged the initial process in Court, they were given fair treatment by the 1st and 2nd Respondents. The confidential document dated 29th August, 2002, on which hinged the Applicants case, was according to the evidence of the Respondents withdrawn. The award of Hunting Concessions was based on the document dated 27th November 2002. We agree with the trial Judge that there was no want or excess of jurisdiction. Equally, there was no unreasonableness in picking the highest scores based on document “MHK4”. The 1st and 2nd Respondents explained why document marked “ANM4” was withdrawn. As we have said, it is not for the Court to determine the merits for the withdrawal. On the evidence on record, even after the withdrawal of document “ANM4,” the Applicants followed the procedure which resulted in document marked “MHK4”, which showed all the bidders’ scores including those of the Applicants. J18 We find no procedural impropriety in the manner the Hunting Concessions were awarded. We, therefore, dismiss the appeal. On the facts of this case, we make no order as to costs. On the cross-appeal, we agree that a successful party should not be deprived of his costs. In the instant case, the trial Court observed that the 1st Respondent’s employees generated this action by leaking a confidential document and so declined to award costs. The Respondents argued that there was no such evidence. In our view, the fact that there were two confidential documents is not in dispute. In the • normal course of doing business, there should not have been two documents. The existence of two documents, undoubtedly led to this litigation. In the circumstances, the cross-appeal cannot succeed. It is dismissed and we also make no order as to cosis on the cross-appeal. E. L. SAKALA CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE P. CHITENGI SUPREME COURT JUDGE