Edpat Trade Investment Limited v Plessey Zambia Limited (2009/HPC/121) [2010] ZMHC 115 (24 February 2010)

IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (COMMERCl1{LIST) BE1WEEN: \ G!~-~~ ·-·-- -- ___ .......,. R [(; i,:·irn C I. Ef• )<, 15 COM~~[TTCIAL REGISTRY ~O BOX 50(16 7 . LU. St. KA _J :i , EDPAT TRADE INVESTMENT LIMITED PLAINTIFF AND PLESSEY ZAM BIA LIMITED DEFENDANT BEFORE THE HON, MR. JUSTICE C. KAJIMANGA IN CHAMBERS THIS 24TH DAY OF FEBRUARY 2010. FOR THE PLAINTIFF: Mr. B. C. Mutale, Mulenga Mundashi & Co. FOR THE DEFENDANT: Mr. E. Mwitwa, Messrs Musa Mwenye JUDGMENT Cases referred to: (1). Zambia Consolidated Copper Mines Limited v Goodward Enterprises Limited SCZ Judgment No. 7 of 2000 (2). Carver Joel Jere v DVR/SGT Shamayuwa and the Attorney-General (1978) Z. R. Other Authority referred to: Halsbury's Laws of England 4th Edition, Paragraph 561 The Plaintiff issued a writ of summons endorsed with the following claim: (i) Payment for the sum of US$22,500.00 due on the first contract; (H) Payment for the sum of US$31,899.24 on the ancillary works; (iii) Damages for breach of contract on the second contract; (iv) Interest at the current bank lending rate on any amount found due; and (v) Costs of and incidental to this action. The Plaintiff called one witness, Edgar Mwiinga Cholwe the Plaintiff's Managing Director. According to his witness statement, the Plaintiff and the Defendant entered into a written contract (first contract) on 6th March, 2007 in which the Plaintiff was engaged as subcontractor to erect a communication tower for Celtel Zambia Limited (Cetel) now Zain Zambia Limited at Thendele in Isoka which the Plaintiff successfully completed. The contract price for the first contract was US$52,875.00 inclusive of VAT. On or about 16th March, 2007 the parties through Order number P00167 entered into another contract similarly for the construction of a tower at Nkachibiya in Mpika (second contract) and that a deposit of US$22,000.00 was paid by the Defendant in respect thereof and that the contract price was US$55,000.00 inclusive of VAT. The witness statement also disc!oses that with respect to the first contract it became necessary to construct an access road and do clearance (ancillary works) so as to carry out the contract. PW1 personally communicated the need to carry out the ancillary works detailed on pages 16, 21, 22, and 23 of the Plaintiff's bundle of documents to the Defendant which consented. It was an express and/.nt. Jmplied term of the verbal contract with respect to the ancillary works that an amount would be ,- J2 . - . separately billed and the Defendant did in fact make some payments on the said works. I - - - With respect to the second contract the Plaintiff mobilized resources detailed on pages 17, 26 and 31 of the Plaintiff's bundle of documents for its performance but the Defendant without justifiable cause or explanation unilaterally terminated it. The Plaintiff constructed the access road and billed the Defendant the sum of US$139,231.00 which was disputed and the parties finally agreed that the amount be valued by Celtel. A valuation was conducted and despite the Plaintiff being paid the amount of US$61,899.24 the Defendant has only paid the Defendant US$30,030.00 leaving a balance of US$31,899.24 outstanding to date. The witness statement of PW1 further discloses that after the unllateral termination of the second contract, the Defendant purported to treat the deposit paid to the Plaintiff as part payment of the ancillary works done under the first contract and also offered the Plaintiff the sum of US$27,030.00 in full and final settlement of its claims against the Defendant which the Plaintiff rejected as being inadequate. The Plaintiff has as a result of the Defendant's action with respect to both the ancillary works to the first contract and the termination of the second contract suffered loss and damage. In cross-examination, PWl told the Court that the Defendant owes the Plaintiff US$22,500.00 on the first contract. He said that a purchase order was issued by the Plaintiff to the Defendant on this contract but he was later requested to return all the orders to the Defendant's country manager because the parties were not agreeing on the price. It was also his evidence that there was no written contract but the contract sum of US$52,875.00 was agreed. He said that the Defendant received a total payment of US$52,875.00 for the first contract but was claiming US$22,500.00 because they were given a second contract under order number 0655 for Kanchlbiya in Mpika. PWl testified that the amount for Kanchibiya was transferred to the Thendele contract because the Defendant had taken away the second contract from the Plaintiff. J3 PW1 also told t]1e Court that he disputed the price of US$45,000.00 for civil and < rigging work at Thendele indicated on the Plaintiff's tax invoice on page 1 of the Defendant's bundle .or-documents several times but went anead to carry out the works based on the Defenda~'s price because the Pla'intiff was under pressure from the Defendant and Celtel. He, however, conceded that he had no documents before Court showing that he djsputed the price offered by the Defendant. PW1 testified that there was a separate agreement between the Plaintiff and the Defendant with respect to the access road at Thendele and that initially there was no agreed price. He said that the Defendant paid the sum of US$35,285.25 in connection with these ancillary works. When asked whether he had anything in writing showing that the parties had agreed that the amount Celtel would come up with after evaluation would be the sum payable in total to the Plaintiff, PWl responded in the negative. He told the Court that Celtel came up with an evaluation of US$61,899.24 inclusive of VAT. PW1 said that the Plaintiff agreed with the sum of US$35,285.25 which when deducted from US$61,899.24 gives US$26,613.99. He conceded that the sum of US$31,899.24 being claimed in paragraph 4 of his witness statement was wrong and that the amount should read US$26,613.99. It was also the evidence of PW1 that the terms of the Kanchibiya contract were set out in the purchase order dated 6th March, 2007 in its left bottom column under "comments" and that the contract price was US$52,875.00. He said that the sum of US$55,000.00 in paragraph 6 of his witness statement was wrong. PWl told the Court that he collected a cheque for US$26,437.50 from the Defendant being 50% of the Kanchibiya contract. The witness conceded that it was difficult to tell that the picture at page 17 of the Plaintiff's bundle of documents was taken at Kanchibiya. He told the Court that they only mobilized the work force at Kanchibiya but no work was done and they agreed to eventually move out of the site. PWl testified that the credit note in the sum of US$26,437.50 at page 11 of the Defendant's bundle of documents was issued to the Defendant by the Plaintiff in J4 I . - - r • respect of the invoice dated 26th February, 2007 for the Kanchibiya site. He said that of this amount, the Plaintiff used about US$15,000.00 for Thendele works ilnd the balance of US$11,000.00 was for Kanchibiya. PW1 conceded that the Plaintiff had not accounted for the sum of US$26,437.50. He told the Court that the Plaintiff had an oblfgation to account to the Defendant and that they did so in form of credit notes as they were supposed to be given another site where they could have used that money. The witness testified that the tax invoice in the sum of US$26,437. S0 from the Plaintiff at page 12 of the Defendant's bundle of documents was in respect of part payment of road construction at Thendele. He conceded that this was the same amount appearing at page 11 of the Defendant's bundle of documents. It was also his evidence that he was informed that the said amount would be offset from the credit note that Plaintiff had issued to the Defendant and that he did not write to the Defendant explaining what the Plaintiff did with the money. PW1 also testified that the document on page 13 of the Defendant's bundle of documents is a bank voucher relating to the payment of US$26,437.50, the same amount on the credit note at page 11 and tax invoice at page 12 of the Defendant's bundle of documents. He said that the document at page 13 states "offset against CRN on new relevant site". PWl told the Court that the vouchers at pages 13 and 16 of the Defendant's bundle of documents all refer to the access road at Thendele and that adding the sum of US$26,437.50 to US$35,285.25 gives US$61,722.75. He told the Court that he did not agree that the sum of US$61,722.75 assessed by Celtel was a fair recompense for the work done in respect of the access road. PW1 said that the document at page 24 of the Defendant's bundle of documents is a purchase order dated 29th November, 2007 relating to the construction of the access road at Thendele in the sum of US$61,899.24. It was further his evidence that the Defendant paid US$52,875.00 in relation to the first contract and US$61,899.24 in respect of the access road at Thendele. JS DW1 was Johannes Petrus Jordaan, the Defendant company's Financial Controller. According to his witness statement, his main duties are to oversee all financial affairs of the Defendant and administering the Defendant's finances by issuing cheques, approving payments for c1I1 invoices and capturing data on the ACCPAC financial system which the Defendant uses. From the ACCPAC system and relevant documents he has been able to trace in relation to this matter, he ascertained that some time in early 2007, the Defendant was contracted by Celtel to build a telecommunications tower at Thendele in Isoka and the Defendant in turn engaged the Plaintiff as a subcontractor to erect the said tower. From the Plaintiff's tax invoice number 0074 dated 23rd January, 2007 appearing at page 1 of the Defendant's bundle of documents, the contract price agreed between the parties was US$45,000.00 or US$52,875.00 inclusive of 17.5% VAT. From the ACCPAC system and the Defendant's bank voucher dated 23rd January, 2007 appearing at page 2 of the Defendant's bundle of documents, the Defendant paid the Plaintiff 60% down payment in relation to the construction of the tower at Thendele amounting to US$27,000.00 (US$31,725.00 inclusive of VAT) on cheque number 000813 which was collected by PW1 and is on page 3 of the Defendant's bundle of documents.· The witness statement of DW1 also discloses that on 26th February, 2007 the Plaintiff issued to the Defendant a tax invoice number 0080 at page 5 of the Defendant's bundle of documents for the sum of US$9,000.00 (US$10,575.00 inclusive of VAT) representing 20% of the contract price and the Defendant paid the said amount on cheque number 000836 on the same day which was collected by PW1. The witness statement of DW1 further discloses that in addition, the ACCPAC records at page 28 of the Defendant's bundle of documents show that on 25th April, 2007 the Defendant paid the sum of US$5,287.00 representing a further sum of 10% on cheque number 000413. Furthermore, the Plaintiff issued a tax invoice number 0092 to the Defendant on 14th November, 2007 appearing on page 38 of the Defendant's bundle of documents for a further sum of US$5,287.00 being 10% JG retention fee and another invoice for US$2,585.00 at page 37 of the Defendant's bundle of documents for works carried out at a site called Muyombe. The Defendant issued a cheque number 000006 to the Plaintiff for US$7,872.00 on 15 th November, 2007 appearing on page 40 of the Defendant's bundle of documents in respect of the said invoices. DW1 believes that the Defendant settled its obligations to the Plaintiff in full in relation to the construction of the tower at Thendele in Isoka and the Plaintiff's claim for US$22,S00.00 is disputed in its entirety. DWl also states that from the Defendant's records, there was no amount agreed with regard to the construction of the access road and the ancillary works at Thendele site and the parties seemed to have entered into an oral agreement and that they were not initially part of the works relating to the construction of the tower. Prior to the construction of the access road, the Plaintiff issued a quotation number 0024 to the Defendant at page 4 of the Defendant's bundle of documents on 15th February, 2007 for US$1461888.98 in respect of the works that were to be done and subsequently issued a revised quotation number 0025 for US$91,655.29 on 2ih February 2007 at page 6 of the Defendant's bundle of documents. The Plaintiff constructed the access · road and carried out certain ancillary works but an evaluation by Celtel's consultants at pages 30 to 34 of the Defendant's bundle of documents indicated that the Plaintiff had not done the works in accordance with the Bill of Qualities. Celtel's consultants subsequently issued another valuation report at page 35 of the Defendant's bundle of documents in which they valued the works done by the Plaintiff at US$61,899.24 inclusive of VAT and on 29th November, 2007 Celtel eventually issued a purchase order to the Defendant for the said amount. On 21st May1 2007 the Plaintiff issue a tax invoice number 0090 to the Defendant for US$30,030.00 (US$35,285.25 inclusive of VAT) which was settled on 28th May, 2007 on cheque number 000443 and collected by PWl. The witness statement further discloses that prior to Celtel's evaluation of the work done by the Plaintiff on the access road and ancillary works and its payment of n the assessed amount of US$61,899.24 the Defendant had paid the Plaintiff the total sum of US61,722.75 inclusive of VAT in respect of the construction of the access road and incidental works, paid by cheque number 000443 in the sum of US$35,285.25 dated 28th May, 2007 and cheque number 000855 in the sum of US$26,437.50 dated ih March, 2007. Since Celtel only paid the Defendant US$61,899.24 in relation to the construction of the nc:c:ess road and the Defendant had already paid the Plaintiff a tot~I sum of US$61,722.75, the Plaintiff was adequately compensated for the work especially that the parties did not agree on any figure. With regard to the construction of the tower at Kanchibiya in Mpika the witness statement of DWl discloses that the Defendant paid the Plaintiff US$26,437.50 on ih March, 2007 on cheque number 000855 against the Plaintiff's invoice number 0081 as 50% down payment of the total amount agreed upon by the parties in the sum of US$52,875.00 inclusive of VAT which was collected by PWl. It appears that this contract was assigned to another subcontractor and on 26th March, 2007 the Plaintiff issued a credit note in favour of the Defendant for the said sum of US$26,437 .50 on the Plaintiff's tax invoice number 0083 on page 11 of the Defendant's bundle of documents. ·,,1, AGcording to,,the information gathered by DWl from the Defendant's officers in its employment at the time, the contract for the construction of the tower at Kanchibiya was mutually cancelled by the Plaintiff and the Defendant and it was agreed between the Defendant's then country Manager, Mr. Fredddy Janse Van Rensberg and PW1 that the said sum of US$26, 437.50 should be transferred or applied as part payment on the contract for the construction of the access road that was being undertaken by the Plaintiff at Thendele in Isoka. The witness statement of DWl further discloses that on 3rd April, 2007 the Plaintiff issued another tax invoice number 0085 to the Defendant appearing on page 12 of the Defendant's bundle of documents for the stiid sum of US$26,437.00 inclusive of VAT which indicated that the amount was a payment for the road construction at the Thendele site. According to the Defendant's bank voucher dated 4th April, 2007 the JS .. i' ;- said invoice was offset by the payment made to the Plaintiff on cheque number 000855 dated ih March, 2007 appearing at page 10 of the Defendant's bundle of documents. Before the Plaintiff commenced this action, the Defendant on a purely without prejudice basis did offer to settle this matter outside court by paying the Plaintiff a total sum of US$30,500.00 but the Plaintiff refused to accept the offer. In view of the above, the Plaintiff is not entitled to the claims set out in its writ of summons. In cross-examination, DW1 told the Court that as regards the sum of US$27,025.00 at page 29 of the Defendant's bundle of documents, there were negotiations between the Plaintiff and the then Defendant company's country manager and that at that stage it was not known what amount Celtel was going to pay for the road. He said that it was then agreed that the Plaintiff gives the Defendant an invoice in the sum of US$27,025.00 as settlement. DWl told the Court that he raised the cheque at page 5 of the Plaintiff's bundle of documents and the Plaintiff was requested to sign a letter accepting it as full and final settlement for two reasons; the first being that the parties did not have any indication from Celtel on the exact amount it would pay; and second, DWl was still trying to find documents on the dispute with the Plaintiff. In re-examination DWl testified that the statement at pages 25 to 29 of the Defendant's bundle of documents is a reflection of the transaction with the Plaintiff and the amounts it was paid. He told the Court that according to the documents he found on the ACCPAC financial system, the Defendant does not owe the money being claimed by the Plaintiff. On behalf of the Plaintiff, Mr. Mutale submitted that in the performance of the first contract the Plaintiff undertook ancillary works which included constructing an access road valued at US$61,899.24 by Celtel. Counsel contended that in spite of Celtel paying this amount to the Defendant, it has only paid the Plaintiff the sum of US$30,030.00 leaving a balance of US$31,899.24 which is still outstanding to date. J9 ' . Regarding the second contract on which a deposit of US$22,S00.00 was paid, counsel argued that the Plaintiff mobilized several resources and man power for the construction works at Kanchibiya and the workers had started clearing the site but without any lawful justification, the Defendant unilaterally terminated the contract. Counsel submitted that after the unilateral termination of contract, the Defendant purported to treat the deposit paid to the Plaintiff as part payment for the ancillary works done under the first contract and had also offered to pay the Plaintiff the sum of US$27,030.00 in full and final settlement of its claims against the Defendant which the Plaintiff rejected as being inadequate. According to counsel, the unilateral termination of the 2nd contract and the non-payment of the outstanding amount under the 1st contract and the ancillary works were a breach on the part of the Defendant. For the Defendant, Mr. Mwitwa submitted that during cross-examination, PW1 conceded that the Plaintiff was paid a total sum of US$52,875.00 inclusive of VAT and that the Defendant does not owe the Plaintiff US$22,500.00. Counsel argued that in further cross-examination, PWl attempted to amend the Plaintiff's claim in relation to the first contract by testifying that the sum of US$22,S00.00 was owed to the Plaintiff on the construction of the tower at Kanchibiya which he referred to at paragraph 6 of his witness statement as the (''second contract"). On the rules of court with regard to pleadings, counsel referred the Court to the case of Zambia Consolidated Copper Mines Limited v Goodward Enterprises Limited{1} where the Supreme Court stated that: •~ radical depa/1:ure from the case pleaded should not be allowed since, invariably, the opponent is ambushed and would have neither notice nor opportunity to meet it" J10 Counsel also referred the Court to the case of Carver Joel Jere v DVR/SGT Shamayuwa and the Attorney-General {2} where the Supreme Court stated that: "It is one of the cardinal rules of pleadings for the party to tell his opponent what he is coming to Court to prove and to avoid taking his opponent by surprise." Mr. Mwitwa submitted that the testimony of PW1 and his assertion that the claim for the sum of US$22,500.00 related to the second contract should not be entertained as doing so would amount to entertaining a radical departure of the case pleaded and was tantamount to an ambush on the Defendant. It was his further submission that in line with these authorities, the Court should not entertain the testimony of PW1 which contradicted the Plaintiff's claim in the statement of claim. Regarding the Plaintiff's claim for the sum of US$31,899.24 Mr. Mwitwa submitted that it is not in dispute that the Plaintiff and the Defendant entered into an oral contract for the Plaintiff to construct the access road leading to the tower erected at Thendele in Isoka; that the parties never agreed on the contract price; and that subsequently, they orally agreed to have Celtel (the main contractor) value the work done by the Plaintiff on the access road. Counsel submitted that in cross-examination, PW1 conceded that the parties did not enter into any written contract that the Defendant would pay the Plaintiff the total sum determined by Celtel's valuators as the value of the work done on the access road; and that the Defendant paid the Plaintiff an initial sum of US$35,285.25 on 28th Mary, 2007 against the Plaintiff's own invoice number 0090. It was contended on behalf of the Defendant that although the Plaintiff paid a further sum of US$26,437.50 by cheque number 0000855 dated ih March, 2007 as a deposit for the second contract, there was a mutual agreement between the parties that they should rescind or terminate the contract. Counsel stated that according to the unchallenged testimony of DWl in paragraph 27 of his witness statement, the Jll Defendant's former Country Manager told him that he had agreed with PWl that the second contract should be mutually cancelled and that the said payment of US$26,437.50 should be applied as part payment for the construction of the access road. Counsel further submitted that PWl conceded in cross-examination that he agreed to the termination of the second contract on the understanding that the Plaintiff would be given another contract by the Defendant to work on another site. Mr. Mwitwa contended that the Plaintiff did, by conduct, agree that the said sum of US$26,437. S0 should be applied to any outstanding payments on the construction of the access road at Thendele or that it should be treated as a credit note in favour of the Defendant. He also submitted that PWl conceded that the Plaintiff issued a credit note to the Defendant on 26th March, 2007 for US$26,437.50 inclusive of VAT which reads: "Reference is made to the Invoice earlier issued on 2 6/02/2007 Invoice number 0081 for Kanchibiya site which has been allocated to another contractor. This serves as a credit note for the amount of US$26,437.50 ... " Counsel submitted that the Court should find as a fact that the Plaintiff used the sum of US$26,475.50 reflected on the credit note to offset the amount payable to the Plaintiff for the construction of the access road at Thendele; and that the Defendant paid the Plaintiff a total sum of US$61,722.25 for the same, being the sum total of US$35,285.25 and US$26,475. S0. It was also submitted that since the Plaintiff failed to prove that the parties had agreed that the Defendant would pay the Plaintiff the total amount determined by Celtel valuators, the Court should find that the sum of US$61,722.25 paid to the Plaintiff by the Defendant against the sum of US$61,899.24 valued was a fair recompense to the Plaintiff even on quantum meruit as the Plaintiff was merely a subcontractors of the Plaintiff. Counsel urged the Court to take judicial notice that when one party engages another as a subcontractor the subcontractor would only be paid a portion or what the main J12 contractor earns. He contended that if the Court found that the Plaintiff was entitled to any money at all, the sum to be awarded should be US$176.99 being the difference between US$61,722.25 paid to the Plaintiff by the Defendant and US$61,899.24 determined by Celtel. Mr. Mwitwa also urged the Court to take into account the fact that the Defendant, accordingly to paragraph 29 of the witness statement of DWl had offered to settle this matter ex curia by paying the Plaintiff a sum of US$30,500.00 but it rejected the same. Counsel submitted that in view of the above, the Plaintiff's claim for US$31,899.24 as the balance due on the construction of the access road at Thendele should also fail. It was also submitted on behalf of the Defendant that the Plaintiff is not entitled to any damages as the Defendant did not breach the second contract for the construction of the tower at Kanchibiya in Mpika because the parties agreed to cancel the contract and to treat the Defendant's deposit of US$26,475.50 as a credit note in favour of the Defendant. Counsel contended that it was established during the cross-examination of PWl that the Defendant did not unilaterally terminate the second contract or transfer the deposit of the sum of US$22,500.00 to the first contract. It was also his contention , I that the evidence of PW1 in cross-examination is totally different from the case pleaded in the Plaintiff's statement of claim in relation to the second contract as the Plaintiff did not disclose the fact that it, through PWl, consented to the cancellation of the contract on the basis that the Defendant indicated that it would give the Plaintiff another site to work on. The Defendant, Counsel argued, had no opportunity to respond to such assertions as they were neither pleaded in the statement of claim nor were they raised in the Plaintiff's skeleton arguments or PWl's witness statement. It was contended that the Plaintiff failed to establish that the Defendant terminated the second contract unilaterally because its conduct in issuing a credit note to the Defendant on 26th March, 2007 demonstrates that there was an agreement by the parties to terminate the second contract. Counsel submitted that the law allows for a contract to be terminated by mutual consent of the parties and he referred the Court to J13 the Halsbury's Laws of England 4'1 Edition at paragraph 561 where the learned authors stated that: "where a contract is executory on both sides, the parties may terminate it by mutual consent ... Such rescission may take the form of express agreement or may be inferred from conduct as where neither party has insisted on performance of the contract for a long time or where the parties have acted in a manner inconsistent with the continuance of the contract ... 0 It was accordingly submitted that if the Plaintiff did not consent to the parties' mutual termination of the contract, it would not have issued the credit note but would hi]VC at least pursued the Defendant for compensation shortly after the Defendant engaged the Plaintiff in discussions about mutually terminating the contract. Counsel submitted that in the alternative, the Defendant would have simply retained the total deposit of US$26,437. S0 or a portion thereof as compensation for the Defendant's alleged breach of the contract. Counsel· ·further submitted that the Plaintiff cannot claim damages against the Defendant not only because the contract was terminated by consent of the parties but also because it failed to prove at the trial that it has suffered any damages as alleged; and that the Plaintiff failed to adduce any evidence to show that it actually spent any money for the mobilization of casual workers, buying of crushed stones, river and building sand. It was contended that PW 1 also admitted in cross-excnriinalion that the pictures appearing at pages 17, 26 and 31 referred to in paragraph 11 of his witness statement did not prove that they were taken at Kanchibiya and that they could have been taken at any other place in Zambia. The Court was referred to the case of Khalid Mohamed v The Attorney-Genera/(3) where the Supreme Court observed that "a plaintiff who has failed to prove his case cannot be entitled to judgmene whatever may be said of the opponent's case." J14 Regarding the claim for interest, Mr. Mwitwa submitted that the Plaintiff is not entitled to the same as it has failed to prove its case on all the issues on a balance of probabilities. On costs, counsel contended that should the court be of the view that the Plaintiff is entitled to any damages or the sum of US$176.99 it should be ordered that both parties should bear their own costs in view of the Plaintiff's refusal to settle this matter ex curia when it rejected the Plaintiff's offer of US$27,030.00. I have considered the affidavit evidence, skeleton arguments, authorities cited and the written submissions of counsel. The first issue to be determined is whether the Plaintiff is entitled to the sum of US$22,500.00 in respect of the first contract. There is no dispute that the Defendant subcontracted the Plaintiff on 6th March, 2007 to erect a communication tower for Celtel at Thendele in Isoka. According to the evidence on record, the contract price was US$52,875.00 inclusive of VAT. The incontrovertible evidence on record also shows that the Defendant paid this amount to the Plaintiff in instalments of US$31,752.00 on 23rd January~ OO? being 60% of the contract price; US$10,575.00 on 1st March, 2007 being 20% of the contract price; US$5,287.50 on 25th April, 2007 being 10% of the contract price and US$5,287.50 on 15th November, 2007 · being 10% retention fee. The sum total of these amounts is US$52,875.00. The evidence also shows that PW1 personally collected the cheques from the Defendant. PWl conceded in cross-examination that the Defendant paid the contract price of US$52,875.00 to the Plaintiff. However, PWl's evidence is that the Plaintiff's claim for US$22,SOO. OO arises from the fact that this amount was transferred from the second contract for Kanchiblya in Mpika to the first contract for Thendele in Isoka. I note from the statement of claim that this was never pleaded by the Plaintiff. According to paragraph 3 of the Plalntiff's statement of claim the sum of US$22,500.00 was a deposit paid by the Defendant on the second contract. I cannot, therefore, agree more with the Defendant that the testimony of PWl that the said amount was transferred from the second contrac½to the first one is tantamount to amending the pleadings. This practice is deprecated by courts as per the decision in Zambia JlS ,. • I . My finding is based on the fact that there is no evidence on record as to show how the Plaintiff accounted for this amount. When US$26,437.50 is added to US$35,285.25 which had been initially paid for construction of the access road the total comes to US$61,722.25 which is US$176.99 less than the sum of US$61,899.24 valued by Celtel. Since there was no agreement between the parties that the Defendant who was a subcontractor would be paid the whole amount to be assessed by Celtel, I find that the sum of US$61,722.25 is a fair recompense to the Plaintiff for the construction works. For the above reasons, I conclude that the Plaintiff's claim for US$31,899.24 in respect of ancillary works cannot succeed. The third claim is for damages for breach of contract in respect of the second contract. The Defendant's contention is that there was a mutual oral agreement by the parties to rescind or terminate the second contract in respect of which a deposit of US$26,437 . SO had been paid by the Defendant. I find merit in the Defendant's argument because if it were not so, the Plaintiff could not have given a credit note to the Defendant in the said amount. As correctly submitted by Mr. Mwitwa, the Plaintiff had the option to retain the deposit of US$26,437.50 for the Defendant's alleged breach of contract. The Plaintiff has not adduced any evidence that it complained about the termination of contract. Furthermore, I find that the Plaintiff did not produce any evidence on how much it incurred in mobilizing for the second contract. A scrutiny of the pictures on pages 17, 26 and 31 in the Plaintiff's bundle of documents does not show with absolute certainty that they were taken at the Kanchibiya site and when. As correctly conceded by PWl, these pictures could have been taken at any other place in Zambia. The Plaintiff having failed to prove the damages incurred or suffered, I conclude that on the basis of the principle in Khalid Mohamed v The Attorney General, its claim for the damages cannot also succeed. In the final analysis, I conclude that the Plaintiff has failed to prove its claim against the Defendant on a balance of probabilities and this action is therefore J17 .. -, ' Consolidated Copper Mines Limited v Goodward Enterprises Limited and Carver Joel Jere v OVR/SGT Shamayuwa and the Attorney-Genera/cited by Mr. Mwitwa. On the first claim, I determine therefore, that the Plaintiff having received the entire contract price of US$52,875.00, the Defendant does not owe it the claimed sum of US$22,S00.00. The first claim therefore fails. The Plaintiff's second claim is for US$31,899.24 in respect of ancillary works. It is common cause that the parties had agreed that an access road to Thendele site be constructed by the Plaintiff. Albeit there was initially no agreement on the price for the is evidence of payment by the Defendant of an works, there initial sum of US$35,285.25 to the Plaintiff on 28th May, 2007. The testimony of PWl and DWl is that both parties agreed that the amount to be paid to the Plaintiff would be determined by Celtel. The evidence on record shows that Celtel valued the works at US$61,899.24. PW1 conceded in cross-examination that there was no agreement by the parties that the total sum to be determined by Celtel would be paid to the Plaintiff. , , . The evidence also shows that prior to Celtel's evaluation, the Defendant had paid the Plaintiff US$26,437.50 on 7th March, 2007 being 50% down payment for the Kanchibiya contract which was subsequently terminated. According to DW1, the parties agreed that this amount be applied towards the access road at Thendele. Mr. Mwitwa contended thut by conduct, the Plaintiff agreed that the sum of US$26,437.!:i0 should be applied to any outstanding payments on the construction of the access road at Thendele or that it should be treated as a credit note in favour of the Defendant. I cannot agree more with him. My conclusion is fortified by the credit note issued by the Plaintiff on 26th March, 2007 which reads in the last sentence as follows: " ... This serves as a credit note for the amount of US$26,437.50 ... " In view of the above, I find that the Plaintiff used the sum of US$26,475.50 reflected on the credit note towards the construction of the access road at Thendele. dismissed. The view I take of this matter is that justice would be better achieved if the parties bore their own costs and it is so ordered. DELIVERED THIS 24TH DAY OF FEBRUARY 2010 C. KAJIMANGA HIGH COURT JUDGE J18