Direct Shopping Guide Zambia Ltd v Zambian Inside Ltd (Appeal 48 of 2010) [2017] ZMSC 265 (28 April 2017)

< IN THE SUPREME COURT FOR ZAMBIA Appeal No. 48/2010 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DIRECT SHOPPING GUIDE ZAMBIA LIMITED APPELLANT AND ZAMBIAN INSIDE LIMITED RESPONDENT Coram: Muyovwe, Hamaundu and Lisimba, JJS On 5th February, 2015 and 28th April, 2017 For the Appellant: Messrs Chilupe & Permanent Chambers For the Respondent: Mrs. L. Mushota, Messrs Mushota and Associates JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Sithole vs. The State Lotteries Board (1975) Z. R. 106 2. Bater v Bater (1950) 2 All ER, 458 3. The Printing and Numerical Registering Company vs. Simpson (1875) L. R. R. 19 E. Q 462 4. Nkhata and Others vs. The Attorney-General (1966) Z. R. 124 5. Wilson Masauso Zulu vs. Avondale Housing Project Limited (1982) Z. R. 172 6. Kenmuir vs. Hattingh (1974) Z. R. 162 7. Bursewitz vs. Brown (1922) 42 NZLR 411106 8. Eddie Christopher Musonda vs. Lawrence Zimba Appeal No. 41/2012 Jl Legislation referred to: 1. Section 3 of the Law Reform (misrepresentation) Act Cap 69 of the laws of Zambia. Materials referred to: 1. Contract Law by Evan Mckendrick (1997) London: Mac Millan Press Limited at page 3 When we heard this appeal we sat with Hon. Mr. Justice M. Lisimba. He has since retired. Therefore this judgment is by the majority. This is an appeal against the judgment of the High Court which dismissed the appellant’s claim for KI 62,380,000 (unrebased) being the balance of money due to the appellant by the respondent for services rendered for printing Electoral Commission of Zambia (ECZ) flyers and other materials in respect of the 30th October, 2008, Presidential Elections. The learned judge found in favour of the respondent on its counter claim and awarded the respondent K69,457,331.00 (unrebased) with interest as damages for fraudulent misrepresentation. The brief facts are that the parties entered into a contract for the printing of flyers. According to Mr. John Chali Fulai the J2 t Managing Director for the appellant, a lady from the Post Newspapers called him to inform him that Mrs. Nadia Mbumwae the Managing Director for the respondent had been to the Post Newspaper with a request to print flyers for the respondent. He telephoned Mrs. Nadia Mbumwae for a meeting which took place in the presence of Mr. Michel Njoolo a friend of Mr. John Chali Fulai. Mrs. Nadia Mbumwae explained that the work involved flyers typed in full colour and she demanded that delivery should be by the following day. Mrs. Nadia Mbumwae did not disclose that the work was for ECZ. According to Mr. John Chali Fulai, he only realised after negotiations from the logo on the computer that the work was for ECZ. After negotiations they agreed to print 60,000 flyers at K2,200 per copy. Mr. John Chali Fulai demanded a down payment of 50 percent but Mrs. Nadia Mbumwae wanted a sample first. Mr. John Chali Fulai denied that he represented himself as having been referred by ECZ. According to Mr. John Chali Fulai, he could not call the lady from the Post as she was uncomfortable to testify because of the nature of her job. Mr. John Chali Fulai put the appellant's claim at K162,380,000.00 (unrebased) with interest. J3 Mr. Michael Njolo's testimony was that Mrs. Nadia Mbumwae called Mr. John Chali Fulai requesting to meet him. That Mr. John Chali Fulai later phoned her to get directions to the respondent's premises. He confirmed that they met Mrs. Nadia Mbumwae alone and she gave them an order for 60,000 flyers to be printed within 24 hours. According to Mr. Michael Njoolo, it was Mrs. Nadia Mbumwae who first contacted Mr. John Chali Fulai. On the other hand, the respondent’s story is that on 28th October, 2009 DW1 received a letter from ECZ requesting the respondent to engage one of ECZ’s registered printers to print advertisements for the monitoring of the vote, the count and the result totalling of the 2008 Presidential Elections. Mr. John Chali Fulai contacted her the same day and informed her that he had been referred to the respondent by ECZ with respect to the printing work which it had been engaged to contract printers. Mr. John Chali Fulai told her that the appellant was registered as a printer with ECZ and that is why he had been referred to her. Mrs. Nadia Mbumwae believed him as the said information was not in the public domain. J4 According to Mrs. Nadia Mbumwae, she was advised by Mr. John Chali Fulai that as an approved ECZ printer he knew the prices approved by ECZ. The parties then agreed that the price would be subject to approval by the ECZ. The appellant delivered the flyers on 29th October, 2008 before approval of the pricing was obtained from ECZ. Mrs. Nadia Mbumwae paid K20,000,000.00 (unrebased) to the appellant while waiting for approval from the ECZ. Due to the timing, as the Presidential Elections were taking place on 30th October, 2008, she failed to obtain the necessary approval from ECZ. On 14th November, 2008 Mrs. Nadia Mbumwae received another letter from ECZ to print in full colour a map of Zambia indicating the constituency boundaries and the party which won the said elections respectively. On the same day, she was approached by Mr. John Chali Fulai concerning the new works from ECZ, and knowing he was an approved printer she gave him an order for 62,900 units of A4 size flyers depicting Presidential Election results in colour on a map of Zambia. Mrs. Nadia Mbumwae believed the appellant was an approved printer using approved prices and was convinced that the price of K2,200.00 J5 (unrebased) per unit was reasonable and fair. She did not carry out any due diligence by comparing prices from other printers as she believed the appellant was a registered ECZ printer. She paid the appellant K53,000,000.00 (unrebased) down payment against the total price of K138,380,000.00 (unrebased) for 62,900 units of A4 flyers. On 8th December, 2008 the respondent received a letter from ECZ complaining about the poor quality of the flyers and the high price of the flyers which was up to seven times more than the normal market price. The letter also revealed that the appellant was not a registered printer. As a result, the respondent did not pay the appellant and instead decided to counterclaim for monies paid over and above the average prices charged by other printers. After analysing the evidence before him, the learned judge dismissed the appellant’s claim and found that the respondent was entitled to damages in the sum of K69,457,331.00 (unrebased) with interest for fraudulent misrepresentation on its counter claim. J6 Dissatisfied with the judgment of the lower court, the appellant has appealed to this court advancing four grounds of appeal couched in the following terms: 1. The learned judge erred in both law and fact by making a finding that there were inconsistencies in the evidence given by the appellant’s witness contrary to the evidence on record. 2. The court below erred in both law and fact by failing to appreciate and adjudicate that there was no fraudulent misrepresentation on the part of the appellant not only because no such representation or statement was made but also that the respondent failed to prove its defence either by corroborative evidence or any other evidence, or at all. 3. The learned trial judge erred in law and fact by nullifying the contracts entered into between the appellant and respondent dated 29th October, 2008 and 12th November, 2008 covering the respondent’s orders of 29th October, 2008 and 14th November, 2008 respectively in that the court had no jurisdiction to nullify the contracts that were freely and voluntarily entered into between the consenting parties nor to fix a new contract on behalf of the parties. 4. The learned trial judge erred in fact and law by making a finding that the circumstances under which the contract of 29th October, 2009 and also the Order for printing works dated the 12th November, 2009 were questionable and that the whole transaction was married with fraud and disadvantageous to the respondent contrary to the evidence on record. J7 5. The learned trial judge was biased against the appellant by failing or ignoring to take into account the evidence that weighed in favour of the appellant against that of the respondent thereby failing to adjudicate upon all issues in controversy judiciously. Messrs Chilupe and Permanent Chambers filed heads of argument on behalf of the appellant but made no appearance at the hearing of the appeal. In ground one, the gist of the appellant’s argument is that the learned judge failed to appreciate the sequence of events leading to the contract between the parties. It was contended that had the learned judge followed the sequence of events, he would not have concluded that Mr. John Chali Fulai and Mr. Michael Njoolo’s evidence was inconsistent. According to Counsel, Mr. John Chali Fulai stated that he first talked to Mrs. Nadia Mbumwae on the phone about her urgent requirement for printing services and that thereafter together with Mr. Michael Njoolo they proceeded to meet her. It was argued that the testimony of the appellant’s witnesses was not challenged. Counsel submitted that there was documentary evidence before the lower court showing that the contract entered into between J8 the parties on 28th October 2009 and executed on 29th October, 2009 was preceded by oral negotiations held on 28th October, 2009. It was pointed out that Mr. Michael Njoolo was not present at the time of execution of the contract and had the learned judge fully appreciated the context in which Mr. John Chali Fulai and Mr. Michael Njoolo’s evidence was given, he could not have arrived at the conclusion that there was inconsistency. In ground two, Counsel argued that the appellant was not guilty of fraudulent misrepresentation. Counsel also questioned whether the respondent proved its defence in the absence of corroborative evidence. That there was evidence that Mrs. Nadia Mbumwae took a sample of the flyer to Mr. Chris Akufuna at ECZ for approval and that Mr. Akufuna approved the sample prepared by the appellant. It was further pointed out that despite the respondent going back to the appellant for the second printing job for the Presidential Results Map in or about November, 2008 there was no mention of ECZ’s objection to the appellant’s engagement as printer. It was submitted that the respondent did not bring out the issue of misrepresentation even after the appellant issued a letter J9 of demand. According to Counsel, the letters from ECZ were obviously backdated to suit the respondent’s defence as the same were only brought to the attention of the appellant at trial. It was argued that fraudulent misrepresentation was not pleaded from inception. That this clearly showed that the respondent was determined to escape its obligations by any means including concocting false allegations of fraudulent misrepresentations against the appellant. Counsel relied on the case of Sithole vs. The State1 where we stated that: “ ... I agree however that there is nothing in the judgment to suggest that the learned judge appreciated that if a party alleged fraud, the extent of the onus is greater than simple balance of probabilities. ” In Bater v Bater,2 Lord Denning stated that: “A civil case may be proved by a preponderance of probabilities within that standard. The degree depends on the subject matter. A civil court when considering a charge of fraud, will naturally require a higher degree of probabilities than that which it would require if considering whether negligence were established.... a degree of probabilities which is commensurate with the occasion.” It was submitted that the respondent failed to prove false misrepresentation in line with the required standard of proof. It J10 was argued that Mr. John Chali Fulai and Mr. Michael Njoolo never told the respondent that they were sent by ECZ. Counsel submitted that the appellant was not aware that the respondent was engaged by ECZ. It was pointed out that the learned judge found that the information about printing was not in the public domain and that it was also not possible for the appellant to know who had engaged the respondent until they met Mrs. Nadia Mbumwae at the respondent’s office and after entering into a contract with the respondent. Counsel argued that the respondent’s allegation of fraud against the appellant was an afterthought. It was contended that the defence of fraud should have failed having regard to the failure by Mrs. Nadia Mbumwae to bring the witnesses namely Mr. Njekwa and Mr. Mfula who were allegedly present when Mr. John Chali Fulai allegedly walked into her office and represented himself as an appointed ECZ printer. Counsel argued that in fact the learned judge ignored the fact that when Mr. John Chali Fulai and Mr. Michael Njoolo went to see Mrs. Nadia Mbumwae at her office she was alone. It was contended that the surrounding circumstances do not suggest that any statement jii induced the respondent to enter into an agreement with the appellant as the dispute between them only arose after the appellant demanded for payment. Counsel prayed that the trial judge’s finding that the appellant’s representative Mr. John Chali Fulai imposed himself on the respondent’s representative Mrs. Nadia Mbumwae and/or made a false statement and suppressed the truth be set aside; that the whole judgment of the court below be set aside having due regard to the abundant evidence on record in favour of the appellant to the effect that at no time did the appellant lure or use trickery to enter into the contracts; of 28th October, 2008 and 10th November, 2008 for the printing of flyers and Presidential Election Results Map; and make a finding that the contract entered between the appellant and the respondent was freely and voluntarily entered into by two consenting parties and that there was no misrepresentation on the part of the appellant. In relation to ground three, it was submitted, inter alia, that the learned judge’s decision that K313.61 was the average price to print a full page colour on gloss material as opposed to K2,200 per copy was not only unrealistic and unconscionable but J12 amounted to the court fixing and imposing a new contract on behalf of the parties contrary to the legal principles on the law of contract. It was strongly argued that the claim by Mrs. Nadia Mbumwae that she was lured or tricked into entering into the two contracts was unjustified as the contracts were entered into after reaching a consensus. To buttress his argument Counsel referred us to Evan Mckendrick on Contract Law (to which we have had no access) where according to Counsel at page 3 the learned author states as follows: “The law of contract is perceived as a set of power conferring rules which enables individuals to enter into agreements of their own choice on their own terms, freedom of contract and the sanctity of contracts are the dominant ideologies. Parties should be as free as possible to make agreements on their own terms without the interference of the courts and their agreements should be respected, upheld and enforced by the court of law.” Counsel insisted that we must reverse the learned judge’s finding that the price per copy was K313.61 instead of K2,200.00 per copy. We were referred to the case of The Printing and Numerical Registering Company vs. Simpson3 in which it was stated that: J13 “If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be held sacred and shall be enforced by the court of justice.” It was argued that the learned judge based his conclusions on the purported average quotation from the three printers which were never verified adding that the purchase price could not have been dependent on a person or entity not privy to the agreement. In support of ground four, it was submitted that the learned judge leaned more to the respondent’s side and failed to adjudicate upon all issues in controversy judiciously. Counsel repeated his earlier submissions that when Mr. John Chali Fulai and Mr. Michael Njoolo went to Mrs. Nadia Mbumwae’s office she was alone. That after negotiations the two left and quickly returned with four samples as Mrs. Nadia Mbumwae had emphasized the urgency of the job. That they left samples as she said she had to take the samples to Mr. Akufuna at ECZ for approval. Basically, Counsel’s argument is that there was no inconsistency in the appellant’s evidence. Counsel attacked the judgment of the lower court for not including the fact that Mrs. J14 Nadia Mbumwae had gone to the Post Newspaper to request for printing services. There was evidence that Mrs. Nadia Mbumwae talked to a lady at the Post Newspaper and the said lady did not testify because of the nature of her job. It was submitted that the learned judge should have addressed this aspect in the judgment. We were urged to interfere in the trial court’s finding of fact as to the credibility of the respondent’s witness in line with the case of Nkhata and Others vs. The Attorney-General.4 In conclusion, Counsel urged us to quash the judgment of the court below and award the appellant the relief sought. Mrs. Mushota on behalf of the respondent relied on the heads of argument filed on 17th October, 2012 by Messrs Ellis and Company. She also relied on her heads of argument filed on 5th February, 2015 after we granted her leave. We now turn to the submissions filed on 17th October, 2012 by Messrs Ellis and Company. In response to ground one, it was submitted that in line with the case of Nkhata and Four Others vs. The Attorney General4 and Wilson Masauso Zulu vs. Avondale5 an appellate J15 court will rarely reverse a finding of fact by a trial court. This is because the trial court, unlike the appellate court has had an opportunity to hear the witnesses and observe the demeanour of the witnesses in cases where credibility of witnesses is in issue. On this argument, Counsel relied on the case of Kenmuir vs. Hattingh.6 It was submitted that the learned judge was on terra firma when he found that the appellant’s witnesses were inconsistent and gave varying statements on the number of times they had visited the respondent’s premises and discussions they had with the respondent. In response to ground two, it was submitted that the learned judge was on firm ground when he found that there was fraudulent misrepresentation on the part of the appellant; this finding was supported by evidence on the record which clearly showed that the appellant had misrepresented itself as an agent of ECZ. It was argued that corroboration is not mandatory to prove an allegation of fraudulent misrepresentation. Further, that the court can make a finding based on the evidence of one witness which principle is also applicable in criminal cases. It was submitted that what is important is the court’s evaluation of J16 the testimony of the witness taking into account factors such as demeanour and consistency. That in this case, the learned judge evaluated Mrs. Nadia Mbumwae’s evidence and found it to be credible after a thorough and detailed analysis. It was argued that on this ground, there is no basis upon which this Court can overturn the finding of fact by the learned judge. In response to ground three, it was submitted that the principle of law established in the case of The Printing and Numerical Registering Co. vs. Simpson3 is that in a contract all voluntary agreements are enforceable. However, an agreement that is made following a fraudulent misrepresentation is not freely and voluntarily made and gives authority to the court to find an agreement unconscionable and, therefore, void. We were further referred to the case of Bursewitz vs. Brown7 where according to Counsel, Sir John Salmond stated that: " the law in general leaves any man at liberty to make such bargains as he pleases, and to dispose of his own property as he chooses. However improvident, unreasonable or unjust such J17 bargains or dispositions may be they are binding on every party to them unless he can prove affirmatively the existence of one of the recognised invalidating circumstances, such as fraud or undue influence." It was submitted that misrepresentation vitiates consent on the part of the affected party who in turn is entitled to the necessary remedies namely rescission in line with Section 3 of the Law Reform (Misrepresentation) Act, Cap 69 of the Laws of Zambia. It was submitted that the respondent proved in the court below that it had relied on the fraudulent representations made by the appellant to the effect that the appellant was an ECZ approved printer when in fact not. It was contended that fraudulent misrepresentation having been successfully proved, the learned judge correctly nullified the contracts and found in favour of the respondent on the counterclaim in accordance with the law and remedies on fraudulent misrepresentation. In response to ground four, it was submitted that this ground is against findings of fact and Counsel reiterated their arguments in grounds one and two. J18 Turning to ground five, it was submitted that the matter was determined on the merits. Counsel submitted that the assertion by the appellant that Mr. John Chali Fulai was referred to the respondent by a lady from the Post Newspapers is hearsay and that the reasons for the lower court's refusal to allow the appellant to call witnesses after the close of the case by both sides was supported by the law and practice. Counsel submitted that the ruling on this issue by the learned judge dated 23rd June, 2009 was not appealed against. Counsel argued that the appellant has not demonstrated in what manner the learned judge exhibited bias against the appellant. We were urged to dismiss all the grounds of appeal for lack of merit. Coming to the heads of argument filed by Mrs. Mushota, she emphasized in ground one that the appellant did not come to equity with clean hands. In responding to ground two, she submitted that there was evidence of deceit and fraud in this case such as the production of defective maps by the appellant which it delivered to media houses and for which it had the audacity to demand payment. J19 She disputed the allegation by the appellant that ECZ backdated the letters to suit the respondent’s case yet the letters were signed by the Director of ECZ. That it was up to the appellant to call the Director of ECZ as a witness or to join ECZ to this action. Counsel argued that although the appellant accused the respondent of concocting the false allegation of fraudulent misrepresentation in order to escape its contractual liability, the appellant did not explain how Mr. John Chali Fulai knew about the information in detail as it was not in the public domain as the same had only been received within two hours and the respondent did not share the information with anyone. In response to ground three, it was submitted that the respondent would not have risked its reputation by engaging a total novice (the appellant) who was not registered with ECZ. Counsel pointed to the evidence on record showing that the respondent got the letter from ECZ on 28th October, 2008 between 15:00 hours and 16:00 hours and that it was obvious that the appellant got the leak of the job from an insider at ECZ. Counsel argued that the court below was on firm ground when it noted the fraud over unit prices on which the appellant got the J20 respondent to contract with it. That when ECZ refused to pay the exorbitant prices for printing demanded by the appellant, the respondent was directed to get quotations from well-known established printers registered with ECZ such as New Horizon Printing Press; Printech Limited and Pro Print which quoted unit prices far below and reasonable compared to the appellant. She submitted that the lower court was on firm ground when it awarded an average price for the work done by the appellant. We have considered the arguments advanced by the parties in this appeal. We find it convenient to deal with all the grounds of appeal together as they are inter-related. The question at hand is whether the appellant was guilty of fraudulent misrepresentation having regard to the evidence before the lower court. To start with, Counsel has attacked the learned judge for finding that there were inconsistencies between the evidence of Mr. John Chali Fulai and Mr. Michael Njoolo. We have read Mr. John Chali Fulai’s Amended Witness Statement as well as his evidence before the trial court. Mr. John Chali Fulai’s evidence J21 was that he was connected to Mrs. Nadia Mbumwae by the lady from the Post Newspaper. According to Mr. John Chali Fulai, he was informed by the lady that Mrs. Nadia Mbumwae had visited the Post Newspaper looking for printing services. And so, it was Mr. John Chali Fulai who phoned Mrs. Nadia Mbumwae and at that time, he was alone. The learned judge found inconsistency in Mr. Michael Njoolo’s evidence when in his witness statement he said: That on dates unknown but during the period for the Presidential Elections in 2008, my colleague one, John Chali Fulai Managing Director of the Company who stays at Plot No. 909, Simon Mwansa Kapwepwe Road, New Avondale, Lusaka received a call from a lady who was calling from somewhere behind Manda Hill asking to meet with him. He asked me to escort him as he didn’t know the place, (emphasis ours) The learned judge’s understanding of the above quote appears to mean that Mrs. Nadia Mbumwae was requesting to meet Mr. John Chali Fulai. In fact, one gets the impression that Mrs. Nadia Mbumwae was the initiator of the business deal which resulted from the meeting. And yet Mr. John Chali Fulai clearly stated that he is the one who initiated the first contact J22 ♦ with the respondent. We, therefore, do not find that the learned judge erred in his finding of fact. At the same time, and more importantly, we are quick to agree with Counsel for the appellant that the aspect of who called who first and in whose presence does not go to the root of the matter. However, what is in issue is the perception that Mr. John Chali Fulai gave of himself to Mrs. Nadia Mbumwae. It is not in dispute that he contacted her first on the day she was given the first order by ECZ and the learned judge accepted that he represented himself as having come from ECZ and that he was an ECZ approved printer. The letter from ECZ to the respondent dated 28th October, 2005 reads in part: "I wish to request that you immediately engage one of our registered printers to print advertisements for the monitoring of the vote, the count and the results totalling of the 2008 Presidential Election and cause the same to be published as flyers in all the daily newspapers by tomorrow 29th October 2008." Clearly, this was an emergency job which required delivery the following day and we cannot envisage a situation where the respondent would engage a printer who was not registered with ECZ. As it turned out, despite the fact that in his evidence John J23 Chali Fulai said the company had done a lot of business with ECZ, it was not an approved ECZ printer. We cannot fault the learned judge when he held as follows: “I find DW1 (Mrs. Nadia MbumwaeJ’s version of events to be more credible. She told the court that she had never met PW1 (Mr. John Chali Fulai) before and it was PW1 who contacted her first. I also believe her evidence that PW1 misrepresented to her that the plaintiff (appellant) was an approved printer and that he had been referred to her by the Commission. Ingrid Kunda who was the plaintiffs witness was never called to testify. The explanation given that her job did not allow her to testify in court is but incredible afterthought as she could have been easily subpoenaed. This leads me to believe DW1 when she told the court that PW1 must have had a link. This explains the coincidences in respect of both printing contracts. He phoned DW1 within two hours of the defendant (respondent) receiving the first contract. The information was not in the public domain. He issued an invoice for the second contract on 12th November 2008 which was the same day the letter from the Commission to defendant was written. The invoice is at page 11 of the plaintiffs bundle of documents. Page 1 of the plaintiffs supplementary bundle of documents shows that a delivery note dated 10th November, 2008 was prepared prior to the Commission instructing the defendant to print the flyers. These are not mere coincidences or mistakes. This leads me to believe DWl’s evidence when she told the court that PW1 said he knew prices approved by the Commission and that the plaintiff was an approved printer. I find DWl’s evidence more credible on the material facts than PW1 and PW2 (Mr. Michael Njoolo). Her J24 * » evidence shows that PW1 quite clearly misrepresented to her that he was sent by the Commission, that he was an approved printer and that the price would be approved by the Commission.” In this case, clearly the learned judge addressed his mind to the issues before him, bearing in mind the pleadings by the parties and he came to the conclusion that the appellant failed to prove its case on a balance of probabilities. We agree with Counsel for the respondent that what is important is the court’s evaluation of the evidence taking into account relevant factors such as demeanour. As we stated in the case of Eddie Christopher Musonda vs. Lawrence Zimba8 that: “.......it is a well established principle that the learned trial judge is a trier of facts, he has the advantage of observing the demeanour of witnesses to determine as to who was telling the । truth in the trial. Bearing that in mind, we cannot upset his findings...” In this appeal, Counsel for the appellant also argued that Mrs. Nadia Mbumwae’s evidence lacked corroboration and could not be sustained although it is not always necessary to call more than one witness to prove one’s case. Counsel for the appellant has rightly conceded that in any matter, a single witness can prove a case even in criminal matters. And so in the case in casu J25 the question of corroboration does not arise as the learned judge examined the evidence before him and believed the respondent's evidence against that of the appellant. On the strength of the authorities cited we cannot disturb the findings of fact made by the learned judge. Counsel also argued that the respondent did not plead fraudulent misrepresentation from inception. Be that as it may, the record shows that when the respondent engaged new advocates, they applied to amend the defence and counterclaim; which application was not opposed by the appellant. The appellant cannot now be heard to complain as they even filed a reply to the defence and counterclaim. We take the view, that the glaring face of fraudulent misrepresentation left the learned judge with no option but to believe the evidence of Mrs. Nadia Mbumwae who was clearly led into believing that the appellant was sent by ECZ and was an approved ECZ printer. We find no basis to disturb the finding by the learned judge that the appellant was guilty of fraudulent misrepresentation. J26 i Counsel for the appellant has also argued that the learned judge should have maintained the alleged agreed price of K2,200.00 per copy instead of imposing the amount of K313.61 per copy which he arrived at after taking into account the average quotation from three printing firms. Counsel for the appellant argued that the parties willingly entered into an agreement and it is not the duty of courts to interfere with an agreement between the parties. We agree with Counsel for the respondent that any agreement made following a fraudulent misrepresentation cannot be said to be freely and voluntarily made and gives authority to the court to find such an agreement unconscionable and void. In short, the law cannot allow the appellant to benefit from his own wrong doing. We agree that the learned judge having found that the appellant was guilty of fraudulent misrepresentation, he was entitled to hold that the contracts were null and void. This is the price of dishonesty. Naturally, the learned judge was obliged to consider the respondent’s counterclaim and to assess the damages, having regard to the evidence before him. We find that J27 the assessment by the learned judge of awarding the respondent the excess paid above average market value cannot be faulted. Of course, there was evidence from ECZ that K2,200.00 per flyer was seven times higher than the normal market price and also higher than the normal quote by its registered printers for the same quantity. It is obvious that since the work was being carried out for ECZ, the price of a flyer had to be approved by ECZ. The appellant can only blame itself for the position it has found itself in. All in all, in this appeal the appellant sought to reverse findings of fact made by the learned judge. We do not agree that the learned judge failed to properly evaluate the evidence. We have combed the evidence and we are unable to find any trace of biasness on the part of the trial court. The learned judge dealt with all issues in controversy and rightly found that the appellant failed to prove its case on a balance of probabilities. In conclusion, we do not find any merit in all the grounds of appeal. We decline to set aside the judgment of the court below J28 * . * and we dismiss the appeal with costs to the respondent to be taxed in default of agreement. E. N. C. MUYOVWE SUPREME COURT JUDGE ..................... ........................ E. M. HAMAUNDU SUPREME COURT JUDGE J29