Glass Glazers Limited v Investcorp Zambia Limited (APPEAL NO. 266/2022) [2023] ZMCA 336 (23 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 266/2022 BETWEEN: GLASS GLAZERS LIMITE APPELLANT AND INVESTCORP ZAMBIA LI CORAM: KONDOLO SC, MAJULA AND CHEMBE JJA ON 16™ AND 24™ DAY OF NOVEMBER, 2023 For the Appellant: Mr. W. Muhanga of Messrs Willis Clement & Partners, Legal Practitioners For the Respondent: Mr. W Simutenda of M & B Advocates JUDGEMENT KONDOLO SC, JA delivered the Judgment of the Court. CASES REFERRED TO: 1. Gerrison Zulu v Zambia Electricity Supply Corporation (2005) ZR 39 SC 2. Yuill v Yuill [1945] 1 All ER 183 3. Tebuho Yeta v Africa Banking Corporation ABC (Zambia) Limited SCZ/ 117 /2013. BOOKS REFERRED TO: 1. The Due Process of Law, London Butterworths, 1980 J2 of 20 1 . INTRODUCTION 1.1. This appeal is against a judgement delivered by Musona J in which he dismissed the Appellants claims against the Respondent arising from a Subcontractor Contract entered into by the parties. 1.2. In the High Court, the Appellant was the Plaintiff and the Respondent was the Defendant. We shall refer to the parties as Appellant and Respondent throughout this judgement. 2 . APPELLANTS CASE 2.1. The Appellants Statement of claim averred that it was awarded two sub-contracts by the Respondent as follows; 1. Construction of a guard house on behalf of the Zambia Revenue Authority; and 2. Construction works in Chinsali, 2 .2. The litigation is with respect to the sub contract for construction of the guard house of which, according to the Appellant, the initial contract price was Kl 70 , 000 which after variations ended up at the total sum of K201,000. 2.3. That the Appellant successfully executed the works and the main contractor had handed over the project. J3 of 20 2.4. That the Respondent paid th e Appellant the sum of Kl00,000 with KS0 ,000 allocated to each of the two con tracts. Th erefore, only KS0,000 was paid towards construction of the guar d house leaving a balance of Kl Sl,000. 2.5. That despite not having paid the Appellant 1n full, the Respondent furnished the Appellant with a snag list and the Appellant attended to all the requested rectifications. 2.6. That sometime in February, 2020 the Respondent requested th e installation of a gate boom. The Appellant advised th at because it wasn't included in the origin al contract, the gate boom could only be installed with a written variation to th e contract. 2.7. That despite several reminders, the Respondent had, in breach of the contract, refu sed, neglected and/ or ign ored to pay the balance of KlSl,000 resulting in the Appellant being deprived of the use of the sums due . Hence commencing the action claiming the following reliefs: 1. Immediate payment of the sum of KlSl,000 being the balance due to the Plaintiff having been sub contracted by the Defendant and upon completion of the Guard House for Zambia Revenue Authority. J4 of 20 2. Interest on the said sum due and payable at the rate as prescribed by Order 36 of the High Court Act Cap 27, Laws of Zambia from date of issue of the Writ to date of full and final settlement. 3. Damages for breach of contract, loss of money usage and or loss of revenue/opportunity cost and reinvestment for profit making. 4. Costs 5. Any other relief this Honourable Court may consider fit to award in the circumstances. 3 .0 . DEFENDANTS CASE 3.1. The Defendant settled a defence in which it agreed that the original contractual sum was Kl 70,000 but which increased to K201 ,000 after the client varied th e scope of works. 3.2. The Respondent however stated in the same breath that the variations were actually agreed at the sum of KlS,000 which was paid to the Appellant on the 31 st October 2020 thereby bringing the Plaintiffs agreed contractual sum to Kl85,000. 3.3. The Respondent averred that the Appellant did not complete the works because it failed to install the electric gate motor which was part of the contracted works. That the Respondent ended up installing the electric gate motor at the cost of JS of 20 Kl8,781. 3.4. That despite the Respondent requestin g the Appellant to attend to various snags, the Appellant failed to do so and the Defendant ended up attending to them at the cost of Kl 2,500. 3.5. That despite failing to complete the works and attend to the snags, the Respondent paid the Appellant in full. 3.6. The Respondent filed the following counterclaims; (i) An order for payment of the total sum of K31,281 being in respect of the cost of supply of the gate motor and the sum of K12,500 being in respect of the cost of attending to snags by the Respondent at the Respondents own cost. (ii) Interest on (i) above at current Bank of Zambia lending rate. (iii) Costs (iv) Any other relief the Court may deem fit under the circumstances. 4.0. DEFENCE TO COUNTERCLAIM 4.1. The Appellant denied the Respondent's claims and insisted that the Respondent was indebted in the sum of Kl51,000 . J6 of 20 4.2. The Appellant stated that it was never overpaid as contended by the Respondent but was paid money towards another project known as the Chinsali project. 4.3. The Appellant denied the claim of K12,500 relating to the snags contending that it had actually attended to all the snags. 4.4. The claim for the Respondent installing the gate motor was accepted stating that the sum due could be set off against the Appellants dues subject to proving the cost of installation. 5 . HIGH COURT DECISION 5.1. The learned trial judge opined that this dispute involved the simple matter of analysing the payments made by the Respondent to the Appellant against the contract sum. 5.2. The trial judge found as a fact that the following payments were paid by the Respondent; 1. 24th August 2020 K50,000 2. 21 st September, 2020 - K 5,000 3. 21 st September 2020 Kl00,000 4. 31 st October, 2020 K 15,000 5. 10th December, 2020 K 35,000 TOTAL K205,000 J7 of 20 5.3. The learned trial court found that the since the Respondent was claiming the sum of Kl51 ,000, he was in fact overpaid by K54,000. 5.4. The trial Court declined to consider the claim in respect of snags because neither party had proved its assertion on this point. 5.5. With respect to the counter-claim, the trial court held that the Appellant had admitted that it did not supply and install the gate motor and found the Appellant liable for its cost in the sum of Kl8,781. 5.6. The learned trial judge added the overpayment of K54 ,000 and the Kl8,781 and found the Appellant liable to the Respondent in the total sum of K72,781 plus interest at the short term bank deposit rate from the date this matter was filed to date of judgement and thereafter, at the current Bank of Zambia lending rate. 6 . APPEAL 6.1. The Appellant promptly appealed on the following 4 grounds; 1. The learned trial judge misdirected h imself when during trial he opted to cross examine witnesses, as opposed to clarifying parts of the witness's testimony JS of 20 and proceeded to make findings of fact, which findings emanated from the said cross - examination without analysing the evidence in totality and reflected that in the judgement. 2. That the honourable judge in the Court below conducted himself with hostility towards counsel for the Plaintiff during trial and continuously interfered and interjected his cross-examination, without allowing counsel to properly cross-examine the witness, thus depriving counsel from obtaining and clarifications from the witness, as such the Court was balanced towards the Defendant (Respondent herein). 3. The learned trial judge misdirected himself when he found that the total payments made to the Plaintiff Company (Appellant herein) was in the sum of K205,000 contrary to the evidence on the record when he made the following findings: 3 . 1 The finding of the judge that there was a payment of KS0,000 on the 24th August 2020 which he said was not in dispute was erroneous, as the said payment was clarified as being for a different project for Chinsali and was paid before J9 of 20 the Guard house project for Chinsali came into being. 3.2 The learned trial judge misdirected himself and misapprehended the facts when he found that the Plaintiff Company (Appellant herein) had received a sum of Kl00,000 on 2l8t September 2020 and applied the whole amount towards the ZRA Guard House contract; a subject of these proceedings, when the only amount that related to the said ZRA contract, was KS0,000 out of the Kl00,000, and this was clarified in re examination by the Plaintiffs witness, supported by documentary evidence and the evidence of the Defendants ((Respondents herein) witness. 3.3 The finding by the judge that the payment of K35,000 on 10th December, 2020 was towards the ZRA Guard House project was not supported by any evidence during trial and this finding was contrary to the Plaintiffs evidence on the record. 4. The learned trial judge misapprehended the law and the facts and fell in grave error when he found that a sum of KlS,781 that the Defendant (Respondent JlO of 20 herein) claimed to have spent on the supply and installation of the gate motor was to be reimbursed by the Plaintiff (Appellant herein), when such a finding or order was to result into unjust enrichment for the Defendant Company (Respondent herein) as the Plaintiff (Appellant herein) never received or benefited from the said amount for it to be recovered from them. 6.2. APPELLANTS ARGUMENTS 6.3. The Appellant argued grounds 1 and 2 together. The gist of the submissions was that the learned trial judge continually badgered counsel for the Appellant by frequent interjections including cross examining witnesses. 6.4. It was opined that because of this the lower Court lost sight of the fact that even though the case before him was in relation to the ZRA Guard House, some of the payments presented as evidence were in relation to the Chinsali Project. That the trial judge prevented th e Appellants counsel from articulating this point and from cross examining the Respondents witnesses. 6.5. Counsel observed that the learned trial judge tabulated Jll of 20 specific sums of money amounting to K205,000 and asked DW 1 if tha t was the position and DW 1 answered in the affirmative, When the Appellants counsel tried to cross examine the witness so as to establish which project the sums were towards, the lower Court interjected. It was argued that the trial judge ended up misapprehending the facts and making an unbalanced evaluation of the evidence. 6.6. Counsel cited th e case of Gerrison Zulu v Zambia Electric ity Supply Corporation 111 where the Supreme Court cautioned trial judges against inserting themselves into the substantive question during the trial but to listen to the evidence and ask question only to clear a point. 6.7. It was p ointed out that the parties were involved 1n two projects, the Guard House Project and another one in Chinsali District (the Chinsali Project) . It was argued to this end that the K50,000 paid on 24th August, 2020 which the trial judge credited to the ZRA Guard House Project in Lusaka, was actually paid towards the Chinsali Proj ect which was already running as the contract for the ZRA Guard House Project h ad n ot even been executed. That the trial judge • • J12 of 20 wrongly stated that the sum was not disputed when it in fact was. We were urged to allow this ground. 6.8. Ground 3 (i) repeated the argument in relation to the KS0,000 paid on 24th August, 2020 which the learned trial judge credited to the guard House project. The Appellant reiterated that the trial judge made a wrong finding of fact that the Appellant was not disputing that the KS0,000 was paid towards the guard house project. 6.9. Ground 3 (ii) attacked the learned trial judge's finding on the Kl00,000 p ayment of 21 st September 2020 which he credited to the Guard House project. We were referred to the sub contract at page 38 Record of Appeal (ROA) made in respect of the Guard House project which indicates that the initial payment of Kl00 ,000 was divided as KS0,000 towards the Guard house and KS0,000 towards the Chinsali Project. The trial judge was again accused of concentrating only on the receipt at p age 81 ROA which only referred to the Guard House project. We were urged to read the receipt together with the sub-contract and overturn this finding of fact. 6.10. Ground 3 (iii ) sought to impugn the learned trial judge's finding that the sum of K35,000 paid on 10th December, 2020 was also made towards the guard house project. That J13 of 20 the trial judge m a de this allegedly erroneous finding after referring to item 11 on the document at page 87 ROA entitled Receipt Record. 6.11. The Appellant argued that the said Receipt Record reflected several paym ents but the trial judge singled out this one payment as being made in respect of the guard house project, de spite DW2 having admitted that the only transaction on 10th December, 2020 was the sum of KS0,000 for Chinsali. 6.12. Ground 4 challenged the lower Courts finding that the Appellant was liable for the cost of the gate motor because it would amount to unjust enrichment of the Respondent as the Appellant n ever received nor benefited from the amounts received. 6 . 13. It was argued th a t the Appellant wa s n ever paid any money to install the gate motor. 7.0 RESPONDE NT'S ARGUMENTS 7 .1. In relation to grounds 1 and 2 the Respondent submitted that the learned trial judge was not unnecessarily interjecting in the proceedings but merely seeking clarity on certain issues and that he was perfectly entitled to do so . J14 of 20 7.2. In grounds 3(i), 3 (ii) and 3 (iii) the Respondent merely argued that the trial judge made sound findings of fact based on the evidence available to him. 7.3. In ground 4 , it was argued that the cost of the gate motor was included in the contract price and it was in fact one of the snags on th e ZRA snag list. That the Appellant failed to attend to it and the Respondent did so, at the cost of K18,781 and evidence was provided to that effect and accepted by the trial judge. 8 .0 . THE HEARING 8.1. At the hearing both parties stated that they wold wholly rely on the record of a ppeal and filed heads of argument. 9 .0. DECISION OF THIS COURT 9.1. We have considered the record of appeal and the arguments advanced by the parties and we note that this entire appeal rests entirely on the alleged intrusive conduct of the learned trial judge during the proceedings and on his findings of fact . 9.2. Grounds 1 and 2 and 3 (i) will be addressed together. 9.3. With respect to th e Appellants complaint that the trial judge inserted himself into the dispute between the parties, the J l S of 20 transcript of proceedings supports the allegation . Instead of maintaining his position as an umpire, the learned trial judge at times became a player. At some point, this even resulted in the learned trial Judge attempting to limit the Appellants counsel to cr oss examining only on issues arising from examination in chief. 9. 4. Lord Denning in his book, The Due Process of Law, London Butterworths, 1980 had this to say on the conduct of judges where he cited the advice given by Lord Greene MR in Yuill v Yuill 121 where Lord Greene explained that ''justice is best done by a judge w ho holds the balance between the contending parties without himself taking part in their disputations? If a judge should himself conduct the examination of witnesses, h e so to speak, descends into the arena and is liable t o have his vision c lauded by the dust of conflict". 9.5. Lord Denning explained that "the judges part in all this is to harken to the e vidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure ......... and at the end to make up his mind where the truth lies. If he goes beyond this, he .,, J16 of 20 drops the mantle of a judge and assumes the robe of an advocate; the change does not become him well". 9.6. Further in this ground, we agree that the trial judge seemed to misappreh end that payments were being channelled towards two proj ects and this resulted in a failure to ask the right questions and concentrating on the wrong things leading to an unbalanced evaluation of the evidence. This was probably as a consequence of allowing his vision to be clouded by th e dust of conflict 9.7. Appellate cou rts are discouraged from interfering with findings off act made by trial courts except in circumstances where the findings of the trial cou rt are perverse or made in the absence of any relevant evidence or upon a misappropriation of the facts. See Tebuho Veta v Africa Banking Corporation ABC (Zambia) Limited 121 . 9.8. Despite having asked so many questions, the trial judge failed to get a clear position with regard to the KS0,000 paid on 24 th August, 2020. Th e Appellant claims it was for the Chinsali Project becau se the Guard House Project had not yet commenced . 9 .9 . It is quite true th at in view of PWl 's re-examination the lower court made an erroneous finding of fact that the Appellant J17 of 20 was not disp u ting that the said KS0,000 was paid towards the guard h ou se project. 9.10. We have considered this particular payment and observe that the p aym ent voucher at page 79 of the record of appeal clearly states tha t it is for the Guard House. 9.11. The Appellant did not explain why the detail indicates Guard House and it must be noted that nothing prevents a payment being made in anticipation of a contract if the parties so agree . We wou ld agree with the trial judge's finding that the KS0,000 paid on 24th August, 2020 was in respect of the guard house a s indicated on the receipt. 9.12. Grounds 1 and 2 succeed on the basis that the t rial judge overreach ed when seeking clarity from counsel and the parties. However , despite the trial judges poor handling of th e matter , on a ccount of our observations regarding the said KS0 ,0 00 paym ent, ground 3.1 fails on the merits. 9 . 13. In relation to ground 3.2, paragraph 3 of the sub contract indicates th a t th e works were being performed in relation to the Guard Hou se project but a s correctly pointed out by the Appellant, paragr aph 5 indicates that the Kl00,000 advance payment s h a ll be divided a s KS0,000 towards the Guard House project and KS0 ,000 towards the Chinsali project. ... _, J18 of 20 Therefore, even though the receipt indicates Kl00,000 towards the guard house project, the guardhouse subcontract indicates that the sum was to be shared between the two projects. Ground 3.2 therefore succeeds. 9.14. With regard to ground 3.3, we agree with the Appellants argument th at the trial judge's finding that the sum of K35,000 was paid in respect of the guardhouse was perverse. Ther e is nothing on the record to support that finding and th e cross examination of DW2 was quite clear in that regard. 9. 15. An examination of the payment receipt Record at page 87 ROA shows tha t two payments were made on 10th December, 2020 amountin g to KS0,000 which sum DW2 said was paid in relation to the Chinsali project. Ground 3 ,3 should succeed. 9.16. In ground 4 , the Appellant does not dispute that the gate m otor wa s included in the scope of works and therefore part of the total contract sum of K 201,000. 9 . 17 . Even though the Appellant was not actually paid the cost of the gate m otor, it is claiming the total contract sum which includes the cost of the gate motor. J19 of 20 9. 18. This was confirmed by the Appellants witness PWl at pages 193 and 197 ROA in cross examination and re-examination respectively where he said that initial scope of works included a motorised gate. The Appellant installed the gate but not the gate motor 9.19. It follows that the sum of K18,781 being the cost of the gate motor should be deducted from the total contract sum as it was not fitted by the Appellant. Ground 4 consequently fails. 9.20. The Appellants claim was for payment of the balance of the contract price in the sum of K151 1000 from wh ich the following sums should be deducted; 1. K50 1000 paid on 24th August, 2020 2. K18, 78 1 being the cost if the gate motor 9.21. The end result is that the Appellant is entitled to payment of the sum of K82, 219 in relation to the subcontract for the guard house project on which we award interest at the average short-term deposit rate per annum from the date of writ to date of Judgement on appeal and thereafter at six percent per annum until final settlement. 9.22. Having failed on grou n ds 3.1 and 4 , th e a ppeal is only p artially su ccessful and each party sh all bear its own costs. J20 of20 ::::::::---.._ M. M. KONDOLO, SC COURT OF APPEAL JUDGE B. M. M JULA COURT OF APPEAL JUDGE &bPnk ..•...........................•....... Y. CHEMBE COURT OF APPEAL JUDGE