Enserve Limited v Zambian Breweries Plc (2024/HPC/0800) [2025] ZMHC 60 (12 August 2025)

IN THE HIGH COURT OF ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2024/HPC/0800 BETWEEN: ENSERVE LIMITED PLAINTIFF AND ZAMBIAN BREWERIES PLC DEFENDANT Delivered in Open Court before the Honourable Mrs. Justice K . E. Mwenda-Zimba on the 12th day of August, 2025. For the Plaintiff For the Defendant Ms. D. Chisengalumbwe & Ms. M. Gama of Messrs J. B. Saka/a & Company Mr. P. Chomba, Mrs. P. Mukunema & Mr. 0. Hasalama of Mulenga, Mundashi Legal Practitioners JUDGMENT Cases referred to: 1. Stern Ltd v . Vickers Ltd (1923) l KB 78. 2. Communications Authori 3. Wes le Mulun ushi v. Catherine Bwale Mzi Chomba 2004 ZR 96. 4. Muluchi Investment Ltd v. ZESCO Ltd. Appeal No. 85 of 2021 . 5. Zambia Breweries Plc v. Betternow Famil Limited A eal No. 174 o 2016. 6. JZ Car Hire Limited v. Malvin Chala and Scirocco Enterprises Limited (2002/ ZR 112. v. Vodacom Zambia Limited 2009 ZR 196. 7. Reliant Corporate Ventures Limited v. Zambian Breweries Plc (2024/HPC/0482}. 8. Anna Anthony Mross v. BHM Enterprises Limited CAZ. Appeal No. 58 of 2024. 9. Colgate Palmolive {ZJ Inc v. Abel Shemu Chuka and 110 Others, Appeal No. 181 0(2005. l 0. Printing and Numerical Registering Company v. Sampson (1875) LR 19 EO 462. 11. National Drug Company Limited and Zambia Privatisation Agency v. Mary Katongo SCZ, Appeal No. 79 of 2001. 12. Catherine Mi endi v. Utumishi Investments Limited Ken a Police Sta Sacco Society Limited ELC, Appeal No. 36 of 2015. 13. Henry Nsama and Others v. Zambia Telecommunications Company Limited (2014) ZR 85. \ 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. ital Board Trollo and Calls Limited v. Northwest Metro (1973} 2 All ER 260. National Airports Corporation Limited v. Reggie Ephraim Zimba and Another, (2000} ZR 154. Shevill v . Builders Llcensing Board (1982} 149 CLR 620. Cameo Equipment Zambia Limited v. Percy Chanda, Appeal No. 21 of 2017. Mobil Oil {Zambia} Limited v. Lota Petroleum Distributors (1977} ZR 336. Mirriam Mbolela v. Adam Bota 12017} 2 ZR 46. Attorne General v. D. G. M undu 1984 ZR 6. Ha ward and Another v. Pullin er and Partners Limited 1950 l All ER 581 · 582. Chie Muli London Chatham & Dover Railwa Co v . South Eastern Railwa 1893 AC 429. Savenda Mana ement Services v. Stanbic Bank Zambia Ltd 2018 3 ZR 160. Chibote Farms Ltd v. Buccaneer Products Ltd A eal No. 55 o f 1993 (Unreported}. Hadley v. Baxendale (1854} 9 Exch 341 . Attorney-General v. Sam Amos Mumba 11984} ZR 14. bamba and Z uma Mukumbut 1987 ZR 75. ia Co-o erative Federation Limited v. Legislation referred to: l . The Sale of Goods Act, 1893, Section 18 fl}, 27, 28, 37, and 50. 2 . The Rules of the Supreme Court of England, 1965 (1999} Edition {White Book, Order 38 Rule 36 fl}. 3 . The Law Reform {Miscellaneous Provisions} Act, Chapter 74 o f the Laws of Zambia, Section 4 . 4 . The High Court Act. Chapter 27 of the Laws of Zambia. Section 13. Other works referred to: l . Halsbury's Laws of England, Specific Performance (Volume 44( 1} (Reissue}. 2. R an Murra " Contract Law: The Fundamentals" 2 nd Edition 2014 Sweet & Maxwell London at page 354. 3 . Halsbu 's Volume 9 1 Contract 4 th Edition 'Re Issue . 1.0. INTRODUCTION AND BACKGROUND 1. 1. On 28th October , 20 2 4 , the plaintiff took out a writ of summons and s tatem ent of claim seeking th e following reliefs: 1. an order for specific performance of the agree ment ordering the defendant to take delivery of the remaining 249,000 kilograms of caustic soda stockpile valued at ZMW10 , 171 ,650.00 which the defendant ordered from the plaintiff; J2 2. immediate payment of ZMW10 ,1 71 ,650.00 equ ivalent to the cash value of the caustic soda ordered by the d efenda nt; 3. damages for breach of contract; 4 . damages for loss of anticipated profits, oper atio nal and business disruption; 5 . reimbursement for warehouse storage costs; 6 . interest; 7. costs of and incidental to this action; and 8 . any other relief that the court may dee m fit. 2.0. THE PLAINTIFF'S CASE 2.1. In its statement of claim, the plaintiff averred that on or about 1st December, 2022, the parties entered into a Short-Form Framework Agreement for deliverables (the 'Agreement'). 2.2. On 24th August, 2023, the defendant issued Purchase Order No. 229230 for 500,000 kg of caustic soda which was to be delivered to the defendant's Lusaka Mungwi outlet. On 7 th November, 2023, the defendant issued Purchase Order No. 230499 for a further 240,000 kg of caustic soda to be delivered to the defendant's Ndola outlet. 2.3. Upon receipt and confirmation of the Purchase Order, the plaintiff procured the caustic soda and advised the defendant to arrange delivery at its premises. However, the defendant informed the plaintiff that it did not have enough storage and that the plaintiff should keep the stock on its behalf from which it would be drawing from stockpile every month. J3 2.4. As a result, the plaintiff delivered 335,000 kg to the Mungwi plant against Purchase Order No . 229230 and 36,000 kg to the Ndola Plant against Purchase Order No. 230499 bringing the total delivered to 371,000 kg as at 29 th May, 2024. In an email of even date, the defendant informed the plaintiff that it was cancelling all the purchase orders and would not be receiving any additional caustic soda. At the time of the cancellation, the plaintiff had 369,000 kg of the defendant's caustic soda valued at ZMWlS,073,650 in its custody as at 28th July, 2024 . 2.5. The plaintiff averred that the defendant failed to give it the requisite reasonable notice as per Clauses 3.6 and 13.1 of the Agreement. 2.6. Following further email exchanges between the parties, the defendant insisted that it would not take any further deliveries of the caustic soda and would not be liable for any further payments. 2.7. In a bid to further avoid the Agreement, by a letter of 19t h June, 2024, to the plaintiff, the defendant indicated that the stockpile requirements were not met by the plaintiff and that the caustic soda supplied had a purity concentration of 91.6% and not the required 99% as per the defendant's laboratory analysis. J4 2.8. The plaintiff asserted that an independent examination by the Zambia Bureau of Standards (ZABS) confirmed that the caustic soda supplied to the defendant complied with the specified quality standards. 2.9 . In an email dated 26th July, 2024, the defendant requested for and took delivery of 30 tons of caustic soda on 29th August, 2024 to its Ndola outlet. It took a further 30 tons at its Ndola plant on 29th August, 2024. 2.10. It was alleged that on 16th August, 2024and31 st August, 2024, the plaintiff delivered 20 tons and 30 tons, respectively to the Lusaka outlet leaving a total outstanding balance of 249,000 kgs worth of stock valued at ZMW 10,171,650.00. The defendant has refused to take delivery of this stock and that as a result, the plaintiff has suffered loss and damage. The statement of claim went on to particularise the special damages, additional holding and storage costs. It added that it obtained two loan facilities as working capital to assist finance the purchase orders. 3.0. THE DEFENDANT'S DEFENCE 3.1. On 12th November, 2024, the defendant filed its defence. It averred that the Agreement for deliverables also comprised the Standard Terms (Schedule 1) and the Sample Statement of JS Works (Schedule 2) and its Annexures A, B, C, D and E . Further, that the plaintiff is a registered supplier of the defendant and would from time to time be requested to supply and deliver a specified quantity of the product ordered. 3.2. It admitted raising Purchase Orders No. 229230 and 230449 for caustic soda amounting to 500,000 kg and 240,000 kg, respectively, but denied that it was to be purchased and delivered to it at once. That it was agreed that the plaintiff would supply and deliver 30 tons or less at a particular request to deliver a part from the combined quantity of the caustic soda under the two purchase orders. 3.3. It was averred that by Annexure C under the agreement, the plaintiff was advised and agreed that the defendant did not offer any volume commitment to the plaintiff and in fact, the defendant reserved the right to order or request for a quantity less than 30 tons. 3.4. Further, that by Annexure A of the sample statement of work, the Agreement provided that the plaintiff should retain a minimum of 120 tons at the stockpile in Zambia and that risk was always with the plaintiff until the caustic soda was delivered to the defendant. J6 3.5. That as per Clauses 3. 7 and 13.1 of the standard terms of the agreement, the defendant could cancel, suspend or vary the purchase order or terminate the Agreement for convenience. According to the defendant, the plaintiff was aware of this and that there was a risk it assumed by purchasing the whole quantity under the two purchase orders. That at no time was the plaintiff informed or advised by any terms of the Agreement to purchase the whole quantity under the two purchase orders. 3.6. It was the defendant's position that it was agreed by the parties that to accord the plaintiff the notice period, the plaintiff was given an order for 30 tons each for delivery to the Lusaka and Ndola plants for 24th July, 2024 and 24th August, 2024 which the plaintiff agreed. 3.7. The defendant denied taking the 369,000 kg of caustic soda as it had cancelled the purchase orders in accordance with the Agreement and was not liable to pay for any more of the caustic soda. 3.8. That the letter of 19th June, 2024, that the supplied product was non-compliant, was written by the defendant on the strength of Annexure E of the agreement and the defendant could terminate the agreement for non-compliant with specifications. It was the defendant's position that the Agreement did not provide for J7 ZABS to conduct any tests on the caustic soda and that it was clear that the tests were to be done by the defendant. 3.9. It was the defendant's position that the Agreement never provided for the plaintiff to procure a loan in order to supply and deliver caustic soda. 4 .0. THE REPLY 4.1. In the reply of 12th February, 2025, the plaintiff reiterated the contents of the statement of claim. That it merely acted on the defendant's written instructions in the two purchase orders. That the plaintiff acted on the Orders despite the defendant not offering any volume commitment. 4.2. It alleged that it met the 120 tons stockpile requirement. 4.3. It insisted that whilst the defendant could terminate the Agreement at its convenience, it was still required to give at least 30 days' written notice of termination to the plaintiff as per Clause 13.1 of the standard terms, Schedule 1 of the agreement. 4 .4. The plaintiff averred that the termination of the agreement did not affect the rights and remedies of the plaintiff accrued up to the date of termination as per Clause 14.1. In addition, that as per Clause 14.3 of the Standard Terms, Schedule 1 of the Agreement, following termination, the plaintiff was required to J8 deliver to the defendant any deliverables completed or 1n development under the Agreement. 4.5. The plaintiff averred that Annexure C merely speaks to the list of delivery sites and truck specifications. 4.6. The plaintiff asserted that no agreement to accord the plaintiff the notice period was entered into between the parties. In addition, that the defendant was liable to reimburse the plaintiff for any expenses and charges incurred as at the date of termination as per Clause 3 .6 of the Agreement. 4.7. That there is a causal link between the defendant's breach of the Agreement and the resultant loss that the plaintiff continues to suffer as it continues to service the loan obtained to finance the two purchase orders. 5.0. THE EVIDENCE IN THIS MATTER 5.1. The first witness in this matter was Mutale Muchemwa, the Managing Director in the plaintiff company. His testimony was more or less a repetition of the statement of claim. He however referred me to various documents contained in the plaintiff's bundle of documents such as the purchase orders at pages 18 and 19, the payment advice (outward telegraphic transfers) , to show payment for the caustic soda from China wher e it was imported from, on pages 20, 23, 56, 61, 63 , 66, 68 and 70. He J9 also referred me to the delivery notes and goods received notes for the 335,000 kg delivered to Lusaka at pages 21, 22, 24, 25, 57, 59, 62, 64, 69, 71, 72, 74 and 36,000 kg delivered to Ndola under goods received notes number 75, 77 and 78 all of the plaintiffs bundle. 5.2. He also referred to the email from the defendant notifying the plaintiff that it would be cancelling the two Purchase Orders as shown at pages 80 and 81 of the same bundle. That this cancellation was done after drawing 165,000kg and 204,000kg from the Lusaka and Ndola plants, respectively. 5.3. That following the receipt of the email, he informed the defendant that 369,000kg of the defendant's caustic soda ordered by the defendant on purchase orders 229230 and 230499 valued at ZMW15,073,650 remained in the warehouse. That the defendant refused to take delivery of the remaining stock. On 29th May, 2024, the plaintiff, through its lawyers issued a letter of demand as shown at page 82 of the plaintiffs bundle of documents. 5.4. On 31 st May, 2024, the defendant responded to the letter of demand reiterating their refusal to accept any further deliveries of caustic soda and that they would not be liable to any further JlO payments as shown by the letter at page 83 of the plaintiffs bundle of documents. 5.5. He testified that on 13 th June, 2024, the defendant informed the plaintiffs advocates that they were prepared to accept delivery of stock for two months as shown by the letter at page 85 of the plaintiffs bundle of documents. 5.6. That on 19th June, 2024, the defendant informed the plaintiffs lawyers that the plaintiff had not met the stockpile requirements and that they would only take delivery of 120 tons of caustic soda and that a 14 days' notice period had been given. He relied on the letter at pages 88 to 89 of the plaintiffs bundle of documents to support of this evidence. 5.7. He swore that on 25th June, 2024, the defendant informed the plaintiff via email of a reported non-compliance regarding the purity of the caustic soda supplied to the Ndola facility. That the defendant also informed the plaintiffs lawyers that the consignment delivered in May by the plaintiff had low concentration of caustic soda. He referred to the email and letter on pages 86 to 87 and 91 respectively of the plaintiff's bundle of documents to support this position. 5.8. He testified that he requested the defendant to avail the plaintiff with a sample of the consignment with low purity to have it Jll - tested but that the defendant did not heed this request. That in an email of 26 th June, 2024, he informed the defendant that the plaintiff had submitted the caustic soda to the Zambia Bureau of Standards (ZABS) for testing and contacted the Chinese factory from where it was procured as shown by the letter at page 91 of the plaintiffs bundle of documents. 5. 9. He testified that the plaintiffs lawyers eventually sent the ZABS laboratory report via email to the defendant who then asserted that the test results did not relate to their consignment. He relied on the email at pages 99 to 101 of the plaintiffs bundle documents. 5.10. That in an email of 27th June, 2024, the Country Procurement Lead of the defendant sought confirmation regarding the delivery of 60 tons of caustic soda to the Lusaka and Ndola plants, respectively, as shown at pages 92 to 93 of the plaintiffs bundle of documents. 5.11. That subsequently, the defendant indicated that it would only accept 120,000kg of the remaining 369,000kg of caustic soda. In response to this request, on 29th July, 2024 and 291h August, 2024, the plaintiff delivered 30,000kg on each day to Ndola. On 16th August, 2024 and 31 st August, 2024, the plaintiff delivered 20,000kg and 40,000kg respectively to the Lusaka plant. J12 5.12. He testified that following the delivery of the 120,000 kg of caustic soda to the defendant, the plaintiff requested the defendant to take delivery of the remaining 249,000kg which the defendant refused, citing its contractual right to cancel the purchase order at any time as per the agreement. 5.13. He swore that the plaintiff obtained two loan facilities from the bank as working capital to enable it finance the two bulk purchase orders issued by the defendant. He relied on the term loan and order facility letters at pages 25 to 38 of the plaintiffs bundle of documents. That the plaintiff has continued to service the two loan facilities from alternative sources of income to its detriment whilst the defendant's caustic soda stockpile valued at ZMW 10,171,650.00 sits idle owing to the defendant's cancellation of the two purchase orders. He referred me to the bank statement at pages 111 to 126 of the plaintiffs bundle of documents to support his position. 5.14. He swore that the unexpected and prolonged retention of the defendant's stock by the plaintiff has resulted in the plaintiff incurring additional storage and handling charges amounting to ZMW45,000.00 as shown by the receipts at pages 84, 98, 102, 1084(sic) and 127 of the plaintiffs bundle of documents. J13 5.15. He testified that the cumulative lost profits amount to ZMW8,630,790.00 as of September, 2024 and placed reliance on the anticipated cash flow loss projections at pages 109 and 110 of the plaintiffs bundle of documents. 5.16. He swore that the defendant's actions have immobilised the plaintiffs capital and severely disrupted the plaintiffs cash flow constraining the plaintiffs ability to engage in other commercial activities, fulfil existing contracts and pursue new opportunities. 5 . 17. He insisted that the parties have had a cordial business relationship characterised by an established pattern of the defendant raising a purchase order and upon receipt and confirmation, the plaintiff supplying the caustic soda as required by the defendant. That it was the expectation of the plaintiff that the defendant would communicate that it did not require the entire stock prior to the plaintiff procuring the entire stockpile. 5.18. He testified that following the termination of the agreement, the plaintiff was required to deliver to the defendant any deliverables completed or in development under the agreement as shown at page 7 of the plaintiffs bundle of documents. J14 5.19. In cross-examination, he confirmed that the Agreement was to be read together with various Schedules and Annexures. When referred to Clause 1.3 of the Agreement, he agreed that it was signed as agreed with standard terms, Schedule 1, which were non-negotiable. He agreed that Schedule 2 had, among other things, the statement of works which in turn had special terms, commercial terms and general terms. 5.20. When referred to Clause 1.5 of the agreement, he testified that the terms of this Agreement did not take precedence over any purchase order. He agreed that the terms in any invoice or purchase order could not take precedence over the Agreement. When referred to Clause 1.6 of the Agreement, he agreed that the Agreement and Schedule 2 took precedence over the standard terms in Schedule 1 and confirmed that Clause 1.6 was subject to Clause 1. 7. 5.21. When referred to Clause 3.3 of Schedule 1, he confirmed that there was no obligation on the plaintiff to deliver any supplies unless the defendant issued a purchase order. That the purchase order would include the quantity and amount payable. He referred to an example of a purchase order at pages 18 and 19 of the plaintiffs bundle of documents. JlS 5.22. He testified that as deliveries were being made, the plaintiff was required to go with a certificate of analysis irrespective of the purchase order. That the defendant was only liable to make payment after it accepts delivery of caustic soda. That if the caustic soda was not accepted, the defendant would send it back and refuse acceptance. 5.23. He stated that the purchase orders were confirmation that the parties agreed to purchase the caustic soda in bulk. 5.24. When referred to Clause 13 of Schedule 2, he agreed that even if caustic soda was purchased there was an acceptance procedure agreed. When referred to annexure D, paragraph 1.1. and the 3 rd bullet under paragraph 1.3, he agreed that whenever caustic soda moved from being stored or about to be delivered, it had to have a certificate of analysis. That despite the certificate of analysis, the defendant had to check the caustic soda and confirm that it complied with the agreed quality. 5.25. He conceded that there is no clause that states that the defendant has to accept a certificate from ZABS. When r eferred to Annexure A and Clause 10 at page 17, he agreed that it was agreed that the caustic soda to be delivered would be from a Zambian based stockpile. When referred to Clause 11 of J16 Annexure A, he conceded that the defendant r etained the right to reject. 5.26. He conceded that there is no email suggesting that the defendant had no storage space for the caustic soda and asked the plaintiff to store it on its behalf. He testified that there is evidence to show that he purchased the caustic soda from his suppliers at pages 56, 66, 61, 63, 68 and 70 of the plaintiffs bundle of documents. 5.27. He added that payments for the caustic soda were made in instalments and that it was not correct that the plaintiff would only pay the supplier when the defendant indicated how much caustic soda was to be delivered. 5.28. ln further cross-examination by Mr. Hasalama, he confirmed that by a letter dated 26 t h June, 2024, the defendant informed the plaintiff that the stockpile was below quality but he denied that it was. He refused to retrieve it as it was not defective . That the batch at the warehouse is the same as the one that was delivered as per the letter of 26 th June, 2024 at page 20 of the defendant's bundle. 5 .29. It was his testimony that the plaintiff requested for samples of the stock that was tested from the defendant but that there was J17 no reply. He noted that the batches in N dola and Lusaka are the same and that there were no problems with the Lusaka batch. 5.30. He explained that the defendant tested some bags whenever the plaintiff made a delivery and that ZABS only tested what was at the plaintiff's warehouse and found it to be okay. He confirmed that the samples were taken to ZABS by a David Mand that he was present at the time they were taken. That it was the first time that the plaintiff experienced such as an allegation. 5.31. He testified that the notice period in the case of a material breach would not apply as this was not the case herein. He agreed with counsel that at paragraph 39 of his witness statement, the claim for lost profits of ZMWB,630,790 was from the order given to the plaintiff by the defendant. 5.32. He testified that the caustic soda remained with the plaintiff as the defendant refused to accept it. He however pointed out that the defendant collected more caustic soda from the so-called defective soda consignment. 5.33. When referred to Clause 21.1 of the standard terms at page 7 of the defendants bundle of documents, he confirmed that the statement guides that the defendant losses and liability are limited to ZMWB,630,790. J18 5.34. In re-examination, he explained that even if the defendant did not recognize the ZABS results, ZABS is the only firm mandated to carry out tests of compliance. That the defendant in an email and through its lawyer Deborah Bwalya acknowledged that ZABS are the ones that test their products. 5.35. The 2 nd witness in this matter was Choolwe Mudenda, an engineer in the defendant company. She confirmed the entry into the Agreement by the parties. 5.36. That the role of the defendant was to make Purchase Orders while the plaintiff was to ensure delivery in line with the specific purchase order and the specifications under Annexure E of the Agreement. In support, she referred me to Clause 7.8 of Schedule 1 at page 5 of the defendants bundle of documents. 5.37. She relied on Clause 5.1 at page 4 of the Agreement to testify that the plaintiff could only invoice the defendant for the purchase orders once the caustic soda supplied met the acceptance criteria under the Agreement. 5.38. According to her, under the Agreement, the plaintiff was supposed to make deliveries of caustic soda in 30-ton trucks or consignments. That in any case, it was a term of the Agreement that the defendant did not offer any volume commitment as it J19 had the right to order less or more of the 30-ton volume as shown at page 14 of the defendant's bundle of documents 5.39. She testified that upon receipt of the caustic soda, the defendant terminated the Agreement in accordance with Clause 13.1 of the agreement by giving the plaintiff 60 days' notice. That in a letter dated 26 th June, 2024, at page 20 of the defendant's bundle of documents, the defendant advised the plaintiff that it would take delivery of 30 tons at both the defendant's plants in Lusaka and Ndola during the notice period. 5.40. She swore that the Agreement provides that the defendant would not be penalised for the termination of the Agreement save for expenses and charges incurred prior to the termination. 5.41. In cross-examination, she confirmed that the defendant issued the Purchase Orders at pages 18 and 19 of the plaintiffs bundle of documents. She swore that there is no breakdown of how the quantities in the Purchase Orders were to be delivered to the defendant. She testified that the two Purchase Orders were binding on the parties the moment they were issued. 5.42. When referred to Clause 10.1 of the Agreement, she swore that as long as the caustic soda met the required specification, the plaintiff was obliged to supply and the defendant obliged to accept the delivery pursuant to the Purchase Order. J20 5.43. She confirmed that she was aware that the plaintiff procured the caustic soda from its suppliers pursuant to the two purchase orders issued by the defendant. 5.44. When referred to Clauses 1.1 and 1.2 under Annexure B at page 13 of the plaintiffs bundle of documents, she confirmed that what was required was that delivery is spaced within the week and not in one day. That the plaintiff was to ensure a constant supply of caustic soda to the defendant. 5.45. She admitted that without the reliable and continuous supply, the plaintiff would have been in breach of the agreement. She agreed that the plaintiff ought to have had sufficient stockpile to ensure continuous delivery based on the minimum requirement indicated by the defendant. 5.46. She testified that the plaintiff was given 60 days ' notice of termination but agreed that the notice given was immediate. That there is no evidence of the 60 days' notice. 5.4 7. She confirmed that she was aware of the letter at page 82 of the plaintiffs bundle of documents and that the plaintiffs counsel insisted that the proper notice be given to the plaintiff. When referred to Clause 3.6 of the Agreement, she denied counsel's contention that no reasonable notice was given to the plaintiff. J21 5.48. She denied counsel's contention that despite cancellation, the defendant was required to reimburse the plaintiff as the last sentence of Clause 3.6 had not been taken into consideration. 5.49. When referred to Clause 13.1, she denied counsel's contention that the defendant was obliged to give a minimum of 30 days' notice as Clause 13.2 had not been taken into consideration. 5.50. When referred to Clause 14.1, she denied counsel's assertion that the defendant was liable to pay for the two purchase orders. When referred to Clause 14.3, she denied the contention that the purchase orders were deliverables in development. That according to the statement of works, the plaintiff ought to have delivered these deliverables in development. 5.51. When referred to the letter at page 88 of the plaintiffs bundle of documents, giving the plaintiff 14 days' notice, she stated that the notice was supposed to be 60 days. 5.52. She testified that the defendant had issues with the quality prior to the cancellation and the concentration was 91.6% and not the required 99% . She conceded that the defendant proceeded to order more in July and August, 2024 subject to it being tested and that these orders were made after the cancellation of the two purchase orders. J22 5.53. She agreed that the agreement to request the plaintiff to supply 30 tons to Lusaka and N dola in lieu of notice was not before court. She testified that she could not recall the plaintiff asking for a sample of the alleged faulty caustic soda. 5.54. She denied being aware of the email at page 99 of the plaintiffs bundle of documents where the plaintiff requested for samples of the alleged non-compliant caustic soda. However, she was aware of the letter at page 90 of the same bundle which required the plaintiff to have a minimum of 120 tons of caustic soda but that she did not agree that it required a minimum . She confirmed that the plaintiff did not retrieve this consignment. She could not confirm whether the defendant still has the consignment. That the faulty consignment was delivered to the Ndola brewery. That she has not been informed by the Ndola brewery what has happened to the caustic soda and that she did not bother about its fate in her capacity as Project Manager. 5.55. She denied counsel's assertion that the issue of faulty caustic soda was a way of avoiding delivery of the soda. 5.56. She confirmed that the defendant takes samples to ZABS and that it also samples within. When referred to a ZABS Laboratory Test Report at page 97 of the plaintiffs bundle of documents, she did not agree that the purity of the sample was 99% . J23 5.57. When referred to paragraph 9 of her witness statement, she denied the contention that the defendant is liable for the expenses and charges of the two purchase orders. 5.58. In re-examination, she clarified that the two breweries are only able to store 30 tons each and thus, the two purchase orders would have required a staggered delivery over a period of time subject to the caustic test once delivered to the brewery. 5.59. On the 60 days' notice period, she referred to Clause 13.2 (a) at page 7 of the plaintiffs bundle of documents and clarified that the clause allows for immediate termination if there was a breach. She explained that according to the statement of works agreed upon, the brewery would receive caustic soda, test it and after verification would it be paid for. 5.60. She clarified that the defendant proceeded to order more despite cancellation in accordance with its discretion to purchase an additional 120 tons which was still subject to quality tests. 6 .0. THE PLAINTIFF'S FINAL SUBMISSIONS 6.1. On 30th May, 2025, Ms. Chisengalumbwe and Ms . Goma submitted that the two Purchase Orders issued by the defendant were active Statement of Work (SOW's) at the time that the defendant terminated the Agreement. That as per J24 Clause 2, the defendant breached the Agreement when it terminated it on 29 th May, 2024. 6.2. In relation to the defendant's position that the plaintiff assumed the risk by purchasing the whole quantity of caustic soda under the two Purchase Orders, they relied on Section 18 (1) of the Sale of Goods Act, 1893 to argue that the issuance of the Purchase Orders constituted an unconditional contract for the sale of specific goods in a deliverable state. That risk in the goods automatically passed to the defendant when the contract was made, notwithstanding that the caustic soda had not been delivered or paid for by the defendant. 6.3. They contended that by operation of Section 18(1) of the Sale of Goods Act, 1893, the property in the goods passed to the defendant the moment the contract was made. In support, they referred to the case of Stern Ltd v. Vickers Ltd .(1 > 6.4. On breach of contract , counsel relied on Clauses 13.1 and 3 .6 of Schedule 1 to the Agreement on the need for written notice of term ination. They submitted that despite the Agreement stipulating the notice period, the defendant disregarded these provisions and terminated with immediate effect. 6.5. Counsel argued that in view of Clause 14.3, the defendant was obliged to accept the caustic soda it ordered from the plaintiff J25 on the two purchase orders as it constitutes deliverables 1n development. 6.6. Counsel further argued that Clause 3.6 provides for the reimbursement of any reasonable charges or expenses. That it is only just that the plaintiff is reimbursed for the charges and expenses it incurred as they cannot be avoided since they are directly related to the termination. 6.7. They disputed the defendant's claims that the sample of caustic soda delivered in May, 2024, did not meet the specification as the sample tested by ZABS was 99% which directly contradicts the defendant's assertion as shown by the ZABS report at page 97 of the plaintiffs bundle of documents. They also pointed out that the issue of non-compliance with the required specifications was only raised a month after termination on 25 th June, 2024. They submitted that this was an excuse and a mere afterthought to justify the defendant's breach. 6.8. In regard to specific performance, they placed reliance on the cases of Communications Authorit v. Vodacom Zambia Limited,(2) and Wesle Mulun ushi v. Catherine Swale Mzi Chomba( l to argue that given the fact that market prices do not remain constant, it is only equitable that the defendant is compelled to take delivery of the stock it ordered. Counsel submitted that the plaintiff J26 - retained the defendant's stock on its behalf and has been willing to deliver the stock to the defendant at all times. 6.9. They argued that in awarding damages only, there would be risk of under-compensating the plaintiff as there would be failure to mitigate the plaintiff's losses as the plaintiff would have to sell the caustic soda at a loss. 6.10. In regard to whether the plaintiff is entitled to damages, they relied on Clause 21.1 of the Agreement and submitted that the plaintiff is entitled to damages as the defendant's breach caused business disruption and loss of profits that the plaintiff would have made on the Purchase Orders. They relied on the case of Muluchi Investment Ltd v. ZESCO Ltd14l to argue that the Purchase Orders constitute a legally binding contract. They further referred to Section 27 of the Sale of Goods Act, 1893 to argue that the defendant's refusal to accept the caustic soda that it ordered on the two Purchase Orders constitutes a breach of the Agreement. 6.11. Counsel referred to Section 28 of the Sale of Goods Act, 1893, to submit that delivery and payment are concurrent and that the plaintiffs readiness to deliver triggered the defendant's obligation to accept and pay. That the defendant's refusal to accept without a conclusively proven and accepted reason for J27 non-compliance constitutes a breach of the concurrent reason. They further relied on Section 3 7 of the Sale of Goods Act, 1893 to buttress this position. 6.12. In relation to the claim for damages they referred to the following authorities: 1. Section 50 of the Sale of Goods Act: 2. Zambia Breweries Pie v. Betternow Family Limited:(5 > 3. JZ Car Hire Limited v. Malvin Chala and Scirocco Enterprises Limited:(5 > and 4. Reliant Corporate Ventures Limited v. Zambian Breweries Plc .(7) 6.13. They argued that the plaintiff has successfully discharged its burden of proof and is entitled to an award of damages for breach of contract. 6 .14. In relation to the claim for reimbursement of warehouse storage costs as special damages, they argued that the defendant's abrupt refusal to accept the caustic soda it procured, which the plaintiff was obliged to store in bulk, has directly led to the prolonged storage of the d efendant's caustic soda. They referred to the case of Anna Anthon Mross v. BHM Enter rises Limited(5 > and Section 37 of the Sale of Goods Act to argue that storage costs are a direct loss resulting from the defendant's breach . J28 7 .0. THE DEFENDANT'S FINAL SUBMISSIONS 7.1. On 17th June, 2025, Mr. Chomba, Mr. Mukunema and Mr. Hasalama filed final submissions on behalf of the defendant. They contended that the ZABS report at page 97 of the plaintiffs bundle of documents should not be considered as the expert from ZABS did not testify. 7.2. They also submitted on the burden of proof which falls on the plaintiff. 7.3. They urged me to enforce the Agreement between the parties as held in Col ate Palmolive Z Inc v. Abel Shemu Chuka and 110 Others (9 > Printin v. Sam son(10 > and National Drug Company Limited and Zambia Privatisation Agency v. Mary Katongo.(11 > That the role of this Court is merely to enforce the contract as executed by the parties. They referred to the case of Catherine M endi v. Utumishi Investments Limited Ken a Police Staff Sacco Society Limited ELC,(12 > Henry Nsama and Others v. Zambia Telecommunications Com an Limited(13 > and Trollop and Colls Limited v. Northwest Metro olitan Re ional Hos ital Board(14 > to support this position. 7.4. Counsel argued that according to Clause 1.3 of the Agreement, the standard terms take precedence. That as per Clause 7 of the Agreement, the compliance with the Agreement could not be J29 varied by the parties. That the plaintiff failed to comply with some of the mandatory terms of the Agreement. That at all material times, the plaintiff was aware that the content of the caustic soda to be supplied to the defendant was 99% . 7.5. Counsel noted that there was no procedure implored to test the caustic soda by the parties to the Agreement. That however, under Clause 7 .8, in the absence of such procedure, acceptance of the caustic soda could only be done upon the defendant confirming that the caustic soda met the standard requirements in accordance with the Agreement under Annexure E. That under Clause 7 of the statement of works, Schedule 2 of the Agreement, the supplier was to provide deliverables 1n accordance with the specifications under Annexure E. 7 .6. That the failure to adhere to the mandatory specifications under Annexure E of the Agreement amounted to a material breach of the terms of the Agreement. Therefore, the plaintiff was not entitled to a 30 days' notice period and the defendant was at liberty to terminate the Agr eement immediately without notice as per Clause 13.2 of the Agreement due to the material breach. 7 . 7. Counsel also argued that the ZABS report relied on by the plaintiff at page 97 of the plaintiffs bundle of documents was not certified true and correct by the laboratory manager as J30 required. They also submitted that the individual who delivered the caustic soda to ZABS was not called by the plaintiff as witness to verify that the caustic soda tested was indeed from the plaintiffs warehouse. 7.8. In regard to the claim for damages, counsel submitted that this claim should automatically fail because of the above arguments. 7. 9. Counsel submitted that damages are only limited to the notice period in the contract where there has been a breach and that in this matter, there has been no breach by the defendant. Counsel relied on the cases of National Airports Corporation Limited v. Reggie Ephraim Zimba and Another,(15l Shevill v. Builders Licensing Board(15 ) and Cameo Equipment Zambia Limited v. Percy Chanda(17 l to support this position. 7.10. On whether the plaintiff 1s entitled to be granted specific performance, counsel submitted that this is an appropriate case where an order for specific performance cannot be granted as the contract was terminated in accordance with Clause 13.1 of the Agreement. Counsel argued that the defendant cannot be compelled to pay for undelivered caustic soda which does not meet the acceptable specification under the agreement. Counsel referred to the cases of Mobil Oil (Zambia) Limited v. Loto Petroleum Distributors(19l and Mirriam Mbolela v. Adam Bota.<19) Counsel J31 submitted that the plaintiff is precluded from delivering any caustic soda as the Agreement was legitimately terminated. That the issuance of the purchase orders did not amount to acceptance of the caustic soda as the same was subject to acceptance procedure in accordance with Clause 7.8 of the Agreement. That it was not a term of the Agreement that the plaintiff should purchase the caustic soda in bulk. 7 . 11. In regard to the claim for an order for loss of anticipated profits, operational and business disruption and reimbursement for warehouse storage, counsel's position was that since the defendant had established that the termination of the agreement was in accordance with the law, this claim should be dismissed. 7.12. Counsel referred to the case of Attorney General v. D. G. Mpundu(201 to argue that this claim is not a probable or direct cause of the termination of the agreement and therefore falls in the category of special damages. It was submitted that the plaintiff was required to specifically plead the special damage relating to this claim as well as particularise the same in the statement of claim. Counsel relied on the cases of Ha ward and Another v. Pullin er and Partners Limited(211 and Chief Bright Nalumbamba and Zambia Co operative Federation Limited v. Muliyunda Wakunguma Mukumbuta(22 ) to J32 argue that the plaintiff is not entitled to reimbursement of wareh ouse stor age fees as the price per kilogram of the caustic soda was inclu sive of th e storage and h andling p rice. 7.13. Th ey sub m itted that according to Clause 14, title and risk irresp ective of the purchase ord ers could only pass upon meetin g the acceptan ce criteria u nder the Agreement. 7.14. It was contended th at t h e parties were bound by the terms of the Agreement u n der Claus e 21 on entirety of the agreement. 7.15. On whether the plaintiff is entitled to interest, counsel argued that the p laintiff is not owed any funds or damages for interest to accrue. They relied on the case of London. Chatham & Dover Railway Co v. South Eastern Railway(23l and Section 4 of the Law Reform (Miscellaneous Provisions) Act, Chapter 7 4 of the Laws of Zambia. 7. 16. Counsel submitted that the court is bound by the party's pleadings and hence any reliefs beyond what is explicitly p leaded is not within th e court's purview. In this regard, they referr ed to Section 13 of the High Court Act, Chapter 27 of the Laws of Zambia and the cas e of Savenda Management Services v. Stanbic Bank Zambia Ltd<24lto support his position. 8.0. CONSIDERATIONS AND FINDINGS 8.1. I have considered the case before me, t h e parties' pleadings, evidence, submission s and authorities cited . J33 8.2. From the evidence on record, the following issues are not 1n dispute: 1. On 1 st December, 2022, the parties entered into a Short Form Framework Agreement for the supply of caustic soda; 2. Following this Agreement, the defendant issued two purchase orders for the supply of 500,000kg and 240,000kg for the defendant's Lusaka and Ndola outlets, respectively; and 3. On 29th May, 2024, the defendant wrote an email cancelling the purchase orders. 8.3 . To resolve this dispute, this court ought to determine- 1. whether the two Purchase Orders were binding on the parties and their standing in relation to the contents of the Agreement aforesaid; 2. whether the caustic soda supplied to the Ndola plant was below the acceptable levels of purity thereby leading to a material breach of the Agreement; and 3. whether the defendant was entitled to terminate the Agreement. 8.4. The first issue I will resolve is whether the Purchase Orders were binding on the parties and how they relate to the Agreement. To effectively deal with this issue, it is important to understand the terms of the Agreement. 8.5. A perusal of Clauses 3.3 and 3.4 of the Standard terms of the Agreement r eveals that it was a term of the Agreement that the plaintiff could only supply once it had been issued with a J34 Purchase Order. For reference, these clauses are in the following terms: "3.3. The supplier must not commence the supply of any Deliverables unless and until the Customer that enters into the SOW has issued a Purchase Order to the Su lier. For the avoidance of doubt, if no Purchase Order has been issued, neither the Customer nor any AB In Bev Affiliate will be liable for payment of any Charges for any Deliverables provided prior to the date on which a Purchase Order is issued the Customer. (SIC) 3.4 Purchase Orders shall be binding without the need for acceptance by the Supplier." [underlining for emphasis only] 8.6. From the above, it is clear that the Agreement and the purchase orders had to be considered side by side as no supply could be made without a purchase order. Clause 3.4 of the Standard Terms categorically states that purchase orders are binding without the need for acceptance by the supplier. 8.7. The above notwithstanding, it should be noted that according to Clause 1.6 of the Agreement, where there is any inconsistency, Schedule 2 (Statement of Work) prevails over the Standard Terms (Schedule 1). On the binding nature of a purchase order, there is no inconsistency between the Schedule 1 and 2. I note that Clause 13 of Schedule 2 and Annexure D of the Agreement give details on acceptance. However, this relates to the J35 acceptance of t h e good s and n ot accep tance of the actual purc h ase order. The two are differ en t . Therefore, the contents of Claus e 3.4 a pp ly. 8. 8 . On cancella tion of a purch ase ord er , Cla u se 3.6 states th at "Without prejudice to its other rights, the Customer may cancel, suspend or vary any Purchase Order, at any time , rovided that it gives the Supplier reasonable written notice. In the event of any cancellation, suspension or variation of the Purchase Order, the Customer will reimburse the Supplier for any reasonable charges or expenses it has incurred (being only charges or expenses to which the Supplier is committed , and which cannot be avoided , and are directly related to such cancellation , suspension or variation and provided that such charges or expenses are in accordance with what the Supplier and the Customer agreed to in terms of the relevant SOW. The Supplier shall at all times use its best endeavours to mitigate any such charges or expenses)." [underlining for em p h asis only] 8.9. From the a b ove Cla u se, th e defendant could cancel a purchase order by giving t h e p laintiff reason a b le written notice. In such a case, the defendant would have to reimburse the plaintiff for any reas on able charges or expens es incurred, which the plaintiff cannot avoid. 8.10. I m ust state t h at the Court of Appeal has had occasion to d eal with wh eth er purchase orde r s are bindin g on parties. This was in Muluchi Investment Limited v. Zesco Limited ,<4lheavily relied on by th e plaintiff. In th at cas e, the Cour t determined that purchase J36 or der s bind parties once accepted by the supplier as they are contractual agreements. They s tated that- " ... a Purchase Order is indeed a contractual agreement between the purchaser and the supplier and becomes legally binding once it has been accepted by the supplier. The Purchase Order, in our view, details the goods or services that the buyer has agreed to buy and the terms of the purchase." 8 . 11. It, therefore, follows that the Purch ase Orders issued by the defendant to the plaintiff were binding on the parties herein. 8.12. The qu estion, therefore, r emains whether the defendant was bound to take d elivery of the remaining stockpile of caustic soda on Purchase Orders No. 229230 and 230499. The plaintiff argued that at the time of the purchase of the caustic soda, the defend ant advised it to keep th e stock on the defendant's behalf and that it would be d rawin g from it. There is no evidence to support this pos it ion. However , Clauses 1.1 and 1.2 of Annexure B guide t h at- "En serve LTD must provide caustic soda on a continuous and reliable basis and maintain required service levels, bearing in mind the geographical area , product and service offering and operational requirements. The estimated delivery frequency should be spaced over the w eek (Monday-Friday) and not all in one day, but should be in f ull t ruck loads for the contracted truck types for every Delivery Site ." 8.13. Clause 10(2) of Ann exure A adds that- J37 "Enserve LTD shall supply caustic soda from a Zambia based stockpile of a minimum size of 120 metric tons (pre-certified stockpile)". 8.14. From the above, it is clear that the plaintiff was required to maintain a minimum tonnage of caustic soda and supply on a continuous and reliable basis. This entails that even if the defendant did not ask the plaintiff to keep caustic soda on its behalf, the plaintiff needed to maintain a minimum tonnage and deliver reliably during the course of the Agreement. 8.15. The defendant also argued that the plaintiff was to deliver caustic soda in 30 tons or less. I do not agree with this position. A look at Annexure C, at page 14 of the defendant's bundle of documents shows a table, listing delivery sites, address and truck type. The truck type is listed as "30-ton, truck". Below that is a note which states as follows: "Note: The Customer does not offer any volume commitment to Enserve LTD. The Customer reserves the right to order more or less than above quantities ... " 8.16. From the above, it is clear that the type of truck that was to be used for delivery is a 30-ton truck. This Annexure does not specify the quantity of soda ordered as per purchase order but the size of the truck to be used for delivery. Further, the note guides that the customer had a right to order more or less than J38 the quantity of the truck. The defendant sought to rely on this clause to argue that it was not bound to the tonnage in the two pur chase orders in issue. However, I do not agree with this contention. Clearly, the table relates to the type of trucks to be used for delivering and not the volume in the purchase orders. The ordering of m ore or less relates to the amount to be delivered on a p articula r day and not a purch ase order. 8 . 17. My views above are fortified by Clause 7.2 of the Agreement which states that- "The Supplier must deliver the Deliverables. in ful l. to the place, and accordin to the timelines s ecified in th e SOW the Deliverables shall be delivered DDP (delivery duty paid , incoterms 2020) at such a time and place." (underlining for emphasis) 8 . 18. In any case, ther e is evidence that the plaintiff had, on various occasions, delivered more than 30 tons as shown by delivery notes of caustic soda such as the ones at pages 57, 64 and 72 of the plaintiffs bun dle of documents when the plaintiff delivered 50 tons, 36 tons and 40 tons, respectively. There are no purchase orders for these tonnages because the aspect of volume commitment u n der Annexure C did not relate to purchase orders but to the actual delivery and truck types. In any case, the purchase orders in issue were issued by the J39 defendant and had a due date. The defendant cannot be seen to reject its own documents. 8.19. From the foregoing, I am of the view and I find that the purchase orders were binding on the parties and that the defendant was bound to accept delivery. 8.20. I will now consider the issue of termination. 8.21. My review of the evidence shows that there are three issues relied upon as the reasons for termination. Firstly, on 29 th May, 2024, the defendant sent the following email to the plaintiff: "Morning Mutale, Please note that we are cancelling all the Purchase Orders for Caustic from Enserve. We will not be receiving any additional Caustic going forward Choolwe Mudenda." 8.22. Upon receipt of this email, on 29th May, 2024, the plaintiff, through its advocates, wrote to the defendant stating that it had not been given proper notice. 8.23. On 31 st May, 2024, the defendant wrote the following letter to the plaintiff: "Dear Sirs RE: TERMINATION OF CONTRACT FOR THE SUPPLY OF CAUSTIC SODA-ENSERVE LIMITED Reference is made to the above captioned matter and your letter dated 29th May ,2024. J40 We would draw your attention to Clause 2.6 of the General Terms and Conditions of the Short-Term Framework Agreement which you duly cite : "without prejudice to its other rights , the customer may cancel, suspend or var y any Purchase Order," Based on this provision, we kindly urge you to communicate to your client that we will not take delivery of any further material, and will therefore not be liable for further payments. Our Valentine Muta le will visit your client's premises at 10:00 hours on Monday to have sight of any stock that your client has in storage dedicated for our use. We trust that the above is sufficient to resolve this matter ... " 8.24 . On 13 th June, 2024, th e defen dant wrote the following letter to the p lain tiffs a dvocates: " ... Having liaised with your client and visited their premises, we are in a position to discuss taking delivery of stock for two months. We await your client's instructions ... " 8.25. On 19th June, 2024, th e defendant wrote the following letter to the plain tiff: " 19th June , 2024 JB Sakala and Company Stand 6458, Los Angeles Boulevard Longacres Lusaka Dear Sirs RE: TERMINATION OF CONTRACT FOR THE SUPPLY OF CAUSTIC SODA-ENSERVE LIMITED Please note that the 14 day written notice to En serve was provided by Procurement Manager, Choolwe Mudenda, on May 20th 2024. J41 The caustic soda stockpile required to be held by Enserve is a minimum of 120 tons as per the Short Form Framework A reement Annexure A-Su lier' s Pricin Break-Down, section 10.1 (pg.13). the stockpile is required to be pre-certified; routine samples are tested by the Customer's representatives to meet specifications; and a detailed analysis of the pre-certified stockpile is required to be sent to the customer for approval on a monthly basis, at minimum, or prior to weekly deliveries. Note that the above stockpile requirements were not met by the Supplier and thus Customer approval was not provided for the stockpile to be deemed " pre-certified". The expectation is for the supplier to hold a minimum of 120 ton of caustic soda, Any additional volumes beyond the min 120 tons that was purchased and stored by the Supplier is at the Supplier' s own risk as the Customer does not offer volume commitments for quantities above the minimum of 120 tons per the note contained in the Short Form Framework Agreement. Annexure C-List of delivery sites: "Note: The Customer does not offer any volume commitment to Enserve L. T. D. The Customer reserves the right to order more or less than above quantities. " In any event, the balance of the 300 tons on the respective attached POs have lapsed in terms of delivery due date (Dec 2023 and Mar 2024). Ndola placed a PO in July 2023 for 240 tons with an additional PO placed a month later in Aug 2023 for 150 tons PO due date Oct and Dec 2023 respectively. Lusaka placed a PO in Aug for 500 tons PO due date Mar 2024. Zambia Breweries Pie agree to purchasing the stockpile of only 120 on at the current Agreement rate of ZMK40.85/kg DDP from the formal notice of termination date of the 29th of May 2024. Any volumes delivered from May, 20th 2024 onwards will be included in the total count of 120 tons to be delivered at site. We await your client's conformation of the proposition. Yours faithfully" 8.26 . On 25 th June, 2024, the defendant wrote to the plaintiff stating that its Nd ola team h ad reported a non compliance with regards J42 to caustic soda delivered from the recent batches. That it awaited the plaintiff to supply the correct percentage purity of 99%. 8.27. From the above correspondence, it is clear that the defendant firstly cancelled the purchase orders for no reason and later stated that it had terminated the Agreement for the same reason. After that it stated that it terminated the Agreement as the 120 tons pre-certified caustic was not met. It is interesting that the correspondence citing cancellation of 29 th May, 2024 and 31 s t May, 2024, cited Clause 2.6 (although it quoted 3.6) as the reason for termination while the correspondence of 19th June, 2024 cited the failure to maintain minimum tonnage. Further, the one for 26 th June, 2024 talked about failure to meet the 99% purity specifications. 8.28. As noted above, the procedure for cancellation under Clause 3.6 and termination for failure to meet specifications and maintain minimum tonnages are different. 8.29 . Clauses 3.6, 3.7 and 13.1, respectively, of the Agreement state that- "3.6. Without prejudice to its other rights, the Customer may cancel, suspend or vary any Purchase Order, at any time, provided that it gives the Supplier reasonable written notice. In the event of any cancellation, suspension or J43 variation of the Purchase Order, the Customer will reimburse the Supplier for any reasonable charges or expenses it has incurred (being only charges or expenses to which the Supplier is committed, and which cannot be avoided , and are directly related to such cancellation , suspension or variation and provided that such charges or expenses are in accordance with what the Supplier and the Customer agreed to in terms of the relevant SOW. The Supplier shall at all times use its best endeavours to mitigate any such charges or expenses). 3. 7. the supplier shall be fully liable for any breach by the Supplier Personnel of the terms of the agreement.. .. 13.1 The Customer may without penalty terminate this Agreement and/or any SOW under the Agreement for convenience by providing not less than 30 days' notice to the Supplier in writing at any time ." 8.30 . From Clause 3.6, it is clear that the defendant could vary, cancel or s u s p e nd a Purch a s e Order at any time as long as it gave reasona ble notice. If t h e defendant exercised this option, it had to r eim burse the plain tiff for any reasonable charges or expenses incu rr ed which could n ot have been avoided. If the d efendant exer cised th e ter min ation option under Clause 13.1, the defend ant would h ave to give the p laintiff 30 days notice in writing. If t h e term ination was d ue to a material breach under Clause 13.2, the d efendant could terminate immediately. J44 8.31. The cancellation of the purchase orders was communicated in the email and letter of 29th May, 2024 and 31st May, 2024, respectively. Clearly, there was no notice given and this was pointed out by the plaintiff in its letter from its lawyers of even date . I, therefore, do not hesitate to find that the cancellation was in breach of the Agreement. 8.32. The termination of the agreement which purported to give notice of 14 days was made on 19th June, 2024. It referred to termination by Choolwe Mudenda, the procurement manager of 20th May, 2024. This notwithstanding, there is no evidence of 30 days notice. The defendant argued that it complied with the 30 days notice when it asked the plaintiff to supply for a further two months. However, this letter of 26th June, 2024 did not state and the parties did not agree that the supply would save as notice for the termination. Therefore, the purported termination under Clause 13.1 was in breach of the Agreement which required 30 days notice. 8.33. The defendant also argued that the caustic soda delivered to its Ndola plant in May, 2024 did not meet the purity requirement of 99%. 8 .34. A perusal of the agreement in regard to the purity of the caustic soda provides in Clause 7 .8 that- J45 "7.8 all Deliverables shall be supplied, tested and accepted in accordance with any procedure agreed in the SOW, and in the absence of such procedure set out in the SOW, shall if applicable having regard to the nature of the Deliverables, be subject to acceptance by the Customer confirming in writing that the Deliverables meet the requirements of relevant Specifications." 8.35. The above guides that the deliverables, in this case, the caustic soda shall be tested in accordance with the agreed procedure in the statement of works. A perusal of the statement of works reveals that under Clause 2.2.2. The supplier, the plaintiff in this case, was supposed to conduct appropriate checks and undertake appropriate quality control and quality assessment procedures to ensure that it complies with the requirements. Annexure D makes it clear that each delivery by the plaintiff was to be accompanied by a certificate of Analysis to site. There is no evidence that this was not done. Under Clause 10 of Annexure A, a representative of the customer, the defendant in this case, was required to routinely sample and test the pre certified stockpile according to the specifications outlined in the Agreement. 8.36. In the present case, the defendant allegedly tested a sample of caustic soda that had already been delivered to it at its Ndola plant. Further, there is uncontroverted testimony that when the J46 plaintiff asked to test the same sample, there was no reply . Whilst the defendant was entitled to test the caustic soda, there is no evidence that the pre-certified stockpile was found to be non compliant. 8.37. If the defendant genuinely had issue with the caustic soda, why did it only test the stockpile after the cancellation of the purchase orders? Additionally, why did it not allow the plaintiff to confirm the results of the batch it tested to confirm that indeed the caustic soda was below specification? Further still, if the batch that was tested was not of the agreed specification, why did the defendant collect more caustic soda from the plain tiff? To me, this appears to be an afterthought on the part of the def end ant. 8 .38. Additionally, there is no official report detailing the test of the caustic soda that was deemed to be below agreed specification aside from the email conversation dated 25th June, 2024. 8.39. The defendant also placed heavy reliance on the unreliability of the report from ZABS. Indeed, the ZABS report was not spoken to by an expert and the form states that the results can only be used in litigation with permission. However, there is nothing to assail its contents. The emails on record show that the report was shared with the defendant and the defendant was asked to J47 confirm its contents. The defendant was also informed that ZABS was willing to assist with verifying the tests done by the defendant. The defendant did nothing about all this. It now wishes to challenge the report which was not objected to before. Further, this is a civil matter and not a criminal matter where the standard of proof is higher. The fact that there is evidence that the plaintiff requested for samples shows genuiness on its part. If it was not genuine, it would not have requested for samples. On a balance of probabilities and considering the failure by the defendant to show that the caustic soda was not compliant or to avail the samples, the account by the plaintiff appears more plausible. 8.40. From the foregoing, I find that there is no evidence to show that the plaintiff supplied non-compliant caustic soda. I find that the allegation that the caustic soda supplied in May was non compliant is clearly an afterthought. 8.41. I must state the termination under 13.2 which requires no notice is subject to Clause 14.1. This Clause states that- "14.1 The expiry or termination of this Agreement or any SOW does not affect any rights and remedies of the relevant parties accrued up to the date of termination, and clauses 10 (Intellectual Property), 9 (Insurance), 14 (Consequences of Termination) and 15 (Confidentiality) shall continue to apply as well as any other provision which expressly or by J48 implication is intended to come into or remain in force on or after termination. 14.3 Following the termination of th is Agreeme nt or any SOW, the Supplier must deliver to the Customer a ny Deliverables completed or in development under the rel evant SOW and give to the Customer any and all assistance reasonably required in connection with the transfe rring of the procurement and supply of the Deliverables to an alte rnative supplier." 8.42 . In the present case, it is not in dispute that there were deliverables in development at the time the defendant stated that the caustic soda was not complaint. 8.43. The defendant also cited failure to maintain a minimum of 120 tons of caustic soda. However, upon inspection of the plaintiff's premises by its representation, it simply stated that it was in a position to take delivery of stock for two months. This is as contained in a letter of 13th June, 2024 quoted to above. This letter does not show that the plaintiff had less than 120 tons of caustic soda at its premises. 8.44. All in all, I find that the purchase orders between the parties were binding and that the termination by the defendant was not in accordance with the Agreement. The defendant breached the Agreement between the parties. J49 8.45 . Having r esolved th e above issues, I now come to the plaintiffs claim s . 8.46. Th e first relief sou ght is an order for s p ecific performance of the agreem en t for the defendant to t ake d elivery of the remaining tons of cau stic soda stockpile valued at ZMW l0, 17 1,650.00. I have found a b ove that the defendant breach ed the contract and should have taken delivery of the remain in g stock pile und er th e Purch ase Order s No. 229230 and 230499. 8.4 7. It is trite law th at s p ecific p er form ance is an equitable remedy gr anted at the Court's discretion and is granted in cases of inad equacy of any other remedy. In the case of Chibote Farms Ltd v . Buccaneer Products Ltd(25l the Supreme Court held that- " specific performance was an equitable remedy granted at the discretion of the court and that its jurisdiction is based on the inadequacy of the remedy at law" 8.48. Further, the learned a u th ors of Halsbury' s Laws of England , Specific Performance (Volume 44(1) (Reissue)) stated that- "879. Failure to be ready and willing to perform the contract. A plaintiff seeking to enforce a contract must show that all conditions precedent have been fulfilled and that he has performed, or been ready and willing to pe rform , all the terms which ought to have been performed by him, and also that he is ready and willing to perform all future obligations JSO under the contract. A contractual term purporting to oust this principle cannot fetter the court's discretion to grant or refuse specific performance after taking account of the plaintiffs conduct. Subject to certain exceptions, any failure on his part or breach of his own obligation bars his claim to specific performance ... " 8.49. The learned author Ryan Murray, in his book, "Contract Law: The Fundamentals" 2nd Edition, 2014, Sweet & Maxwell London at page 354 gives d irection as t o when s p ecific p er formance may be granted. He said that- "as specific performance is an equitable remedy, the Court will not grant specific performance if it would be inequitable to do so. For example, if the award of specific performance was to result in unnecessary hardship for one party then to make such an award would be contrary to the equitable principles that govern specific performance .. . " 8.50. In the case herein, the defen dant was supposed to take delivery of the caustic soda in t h e two pu rchase orders. However, it did not. In m y view, specific performance will do more perfect justice than an award of damages. This is because the caustic soda was s p ecifically or dered and p urchased for the supply to the defendant. I consider it equitable that t he defendant should take delivery of th e remaining stockpile of caustic soda valued at ZMW lO, 171,650 .00. I accordingly gr ant the plaintiff this relief. JSl 8.51. The s econ d relief sough t is the imm ed iate payment of the sum of ZMW l0,171,650.00 equivalent to the cash value of the caustic soda order ed by the defendant. I do not hesitate to grant this relief. The defen dant is ordered to pay the sum of ZMWl0, 171,650.00 being the value of the caustic soda ordered once the plaintiff m akes delivery of the same. 8.52. The third relief sought is for damages for breach of contract. It is not in dispute that the defendant's termination of the Agreem en t was against its terms. I have found that it breached the Agreemen t between th e parties. In the case of Hadley v. Baxendale ,(25lth e Court h ad the following to say about damages for breach of contr act: "where two parties have made a contract which one of them has broken , the damages which the other party ought to receive in respect of such a breach of contract should be such as may fairly and reasonably be considered either arising naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the payable result of the breach of it." 8 .53. In JZ Car Hire Limited v. Malvin Chala and Another,(6 l the Court held that it is for the party claiming any damages to prove damages. 8.54. Further, the learned authors of Halsbury's Volume 9 (1 ), Contract, 4th Edition put it th is way- J52 " ... Of course, the amount of damages recoverable depends on what has been promised and performed , because the primary purpose of damages for breach of contract is to offer the promise the value of performance. Whilst the innocent party is entitled to damages as of right. to recover more than nominal damages he must prove loss." (Underlining for emphasis) 8.55. In the present case, the plaintiff has not brought any evidence to show that it suffer ed damages and the kind of damages it suffered. Additionally, I have found that the p laintiff is entitled to specific per formance of the contract and will, therefore, be p laced in the position it would have been in had the contract been performed. Therefore, whilst the plaintiff is not entitled to damages generally, it is entitled to nominal damages. I accordingly award it nominal damages In the sum of ZMWl0,000.00. 8 .56. The fourth relief sou ght IS for loss of anticipated profits, operational and business disruption. The principles on the award of damages for loss of business are settled. In the case of Attorney-General v. Sam Amos Mumba,1271 the Supreme Court held that - "Where loss of business forms part of the claim , it must be pleaded as special damages and strictly proved." J53 8.57 . From the above holding, it is clear that the plaintiff ought to have outlined the amount of damages for loss of business in its pleadings and produce evidence showing the loss suffered. 8.58. A perusal of the anticipated cashflow loss projections reveals that the anticipated cash at the end of five months would have been ZMW8,063,790.00 as shown at page 109 of the plaintiffs bundle of documents. However, whilst this anticipated cash flow chart is compelling, it does not clarify, nor did the plaintiff clarify how it concluded that it would have made that much money in the five months it projected. There is no evidence backing this anticipated cash analysis. It does not show how the four cycles would have yielded the 20% cash in each cycle as alleged. As pointed out above in the Attorney-General v. Sam Amos Mumba<27 > case above, loss of business must be strictly proved by the plaintiff. It has not done so. I, therefore, find no merit in this claim. 8.59. The fifth claim is for re-imbursement of warehouse storage costs . The plaintiff claimed that it had accumulated storage and handling charges amounting to ZMW45,000.00 over a period of 5 months at the rate of ZMW9,000.00 per month. A perusal of the receipts exhibited in support of this position at pages 84 (ZMW9,000), 98 (ZMW9,000), 102(ZMW9,000), 104(ZMW9,000) J54 - and 127(ZMW9,900) of the p laintiffs bundle of documents reveals t h at the se are receipts for p ayments amounting to ZMW45,90 0 on d iverse d ates from June, 2024 to October, 2024. These are d ates b eyond the d u e date of the 2nd Purchase Order. This claim is supported and was not controverted. I, therefore, find that the plaintiff is entitled to reimbursement for warehouse stor age costs in the sum of ZMW45,900. 9.0. CONCLUSION 9 . 1. In con clusion , I find that the p laintiff h as proved its case on a balance of probabilities. I accordingly enter judgment in its favour in th e following terms: 1. the plaintiff's claim for an order of specific performance is granted ; 2 . the plaintiff is ordered to deliver the remaining 249 tons of caustic soda to the defendant by 29th August, 2025; 3 . following the delivery, the defendant is ordered to pay the sum of ZMW10 , 171 ,650.00; 4 . the plaintiff is awarded ZMW10,000.00 as nominal damages; 5. the plaintiff is awarded special damages in the sum of ZMW45,900; and 6 . that the above sums shall carry interest at the average short term bank deposit rate from date of writ to the date of Judgment and thereafter, at the current bank lending rate as determined by the Bank of Zambia until full payment. JSS - 9.2. The plaintiff is entitled to its costs. These are to be taxed 1n default of agreement. Delivered at Lusaka this 12th day of August, 2025 . K. E. Mwenda-Zimba HIGH COURT JUDGE JS6