Jammie Hayes v Yapi Merkezi Insaat Vee and Ors (2022/HPC/230) [2023] ZMHC 66 (8 May 2023)

IN THE HIGH COURT OF z!::1,~j~~,,i AT THE COMMERCIAL RE,.- HOLDEN AT LUSAKA (Civil Jurisdiction) _.,.,,__ BETWEEN: JIMMIE HA YES AND 2022/HPC/230 PLAINTIFF YAPI MERKEZI INSAAT VE SANAYI ANONIM SIRKETI lST DEFENDANT YAPIRAY DEMIRYOLU INSAAT SISTERMLERI SANAYI VE TICARET ANONIM SIRKETI 2ND DEFENDANT BOMBARDIER TRANSPORTATION SWEDEN AB 3RD DEFENDANT Delivered before the Honourable Mrs. Justice K. E. Mwenda-Zimba on the 8 th day of May, 2023. For the Plaintiff For the 1st and 2 nd Defendants : For the 3 rd Def end ant Mr. M. Banda and Mrs . S. Chibesakunda-Kaluba of Nanzila Advocates and Mr. R . Musumali of SLM Legal Practitioners Mr. M. Ndalameta and Ms. D. Nalishuwa of Musa ~ Dudhia and Co. Mr. C. P. Chula of Chibesakunda and Co. JUDGMENT Cases referred to: William David Carlisle Wise v. E. F Hervey Ltd (1985) ZR 179. Craven Ellis v. Canons Limited (1936) 2KB 403. DP Services Limited v. Municipality o(Kabwe (1976) ZR 110. Smith v. Hughes (1870/ OB 597. 1. 2. 3. 4. 5. Base Chemicals Limited v. Zambia Air(orce and Attorney-General (2011) 2 ZR 34. 6. Kansanshi Mining v. Francis Ndilila TIA Ndilila Associates, Architects (2011} 3 ZR 389. 7. Garnac Green Company Ink v. HMF Faure and Fairclough (1967) 2 ALLER 353. 8. Way v. Latilla (1937) 3 ALL ER 759. 9. Manharial Harli Patel v. Surma Stationers Limited (2009} ZR 112. 10. Harja Import and Export Limited v. ZRA Appeal No. 48 of 1998. 11. Ringford Habwanda v. Zambia Breweries (2012) 3 ZR 75. 12. Khalid Mohammed v. Attorney-General (1982) ZR 49. 13. Masauso Zulu v. Avondale Housing Profect (1982) ZR 172. 14. Dangote Industries Limited v. Enfin Appeal No. 53 of 2020. 15. Kennedy v. Lee (1817) 3 MER 441. 16. Tailor v. Allon (1966) 1 OB 304 17. Nico Coultis Transport Limited v. Buks Haulage Limited CAZ Appeal No. 65 of 2021. 18. Clifton v. Palumbo (1944) 2 ALL ER 497 at 499. 19. May and Butcher Limited v. Keen (1934) 2KB 17. 20. Gibson v. Manchester City Council (1978} 2 ALL ER 583. Legislation referred to: 1. The Rules of the Supreme Court, 1999, Order 15 Rule 1(3). 2. The Public Procurement Act of 2020, Section 74 fl) and 2. 3. The Public Procurement Regulations 2011, Regulation 22 paragraph 2 and 3 The High Court Rules as amended by SI No. 58 of 2020, Order XXXI Rule (3). Other works referred to: 1. Patrick Matibini. Zambian Civil Procedure: Commentary and Cases Volume 1 at page 139. 2. G. H. Trietel on the Law of Contracts, 11 th edition at page 582. 3. Sweet and Maxwell in Chitty, 25th edition, volume 1 at page 26. 4. Halsbury's Laws of England, 4 th edition, Vol. 8 paragraph 390. 1.0 INTRODUCTION AND BACKGROUND 1.1 By an amended writ of summons and statement of claim of 9 th February, 2023, the plaintiff (Mr. Hayes) took out this action against the defendants for, among other things, 1. the sum of EUR4,890,468.20 being 0.5% of the contract price; 2. interest and costs; and 3. any other or ancillary relief. 1.2 The amended statement of claim disclosed that the 1st and 2nd defendants (Yapi Merkezi and Yapiray) are parent and subsidiary companies respectively. That the 3 rd defendant (Bombardier) is incorporated in Sweden and carries on business as a manufacturer of public rail transport, vehicles, trains, signaling and communication systems. -12- 1.3 It disclosed that the three defendants, along with PT Inka of Indonesia (assuming the role of supplier only), formed a consortium called Team Sweden Railway (TSR) for purposes of bidding for a tender to rehabilitate and modernise Zambia Railways Limited (ZRL) project in 2017. About 3rd January, 2018, Bombardier through a letter of authorisation appointed Mr. Hayes as its agent to consult for TSR as regards preparation and submission of tender documents, liaison with Government, that is, Industrial Development Corporation (IDC) , ZRL and all stakeholders. He agreed to be such agent as a local consultant and served for a period of 3 years. 1.4 Subsequently, about 11 th December, 2020, TSR was restructured and Bombardier relinquished its role as TSR leader leaving Yapi Merkezi and Yapiray as TSR lead representatives to pursue the contract but without terminating Mr. Hayes' appointment. That however, Bombardier remains a TSR partner due to its previous contractual obligations and unsettled payment disputes with ZRL dating back to 2014. That settlement of the 2014 contractual obligations remained a condition of the 5th March, 2021, contract award with ZRL-IDC . 1. 5 The amended statement of claim revealed that by their conduct, expressly and implied, Yapi Merkezi and Yapiray retained Mr . -13- Hayes as agent. That on several occas10ns, he engaged the defendants to reduce the agreement for his services in writing but they never responded. That he dutifully attended to all obligations to the benefit of the defendants culminating into the award of the contract by ZRL and IDC to them and that there was no break in his service between 3rd January, 2018 and 23rd April, 2021. 1.6 He averred that Yapi Merkezi and Yapiray executed the contract as representatives of TSR for the sum of EUR978,093,639.00 on 5 th May, 2021. That having rendered his services, he submitted a claim for payment of his professional fee modestly paid at 0.5% of the contract price which is an industry average in investment banking of EUR4,890,468.20. That he submitted his invoice shortly after signing of the contract having received an indication from the defendants that they intended to terminate his appointment. That to date, they had not paid his fee despite not objecting to it. That termination of the contract was communicated to him on 23rd April, 2021 without a formal document. 2.0 THE DEFENDANTS' DEFENCES 2.1 On the 9 th of May, 2022, Yapi Merkezi and Yapiray filed their defence. They denied that they are parent and subsidiary -14- companies respectively. Instead , that Yapi Merkezi is fully owned by Yapi Merkezi Holding AS. That Yapiray has individual shareholders who also hold shares in Yapi Merkezi Holding AS. 2. 2 The defence disclosed that TSR com prised of Born hardier, PT Inka and Yapiray submitted a bid and was awarded a contract titled Engineering, Procurement and Construction ("EPC+ F contract") on 5 th of May, 2021. Phase 1 of the contract covered site investigation works and the amount 1s about EUR12,000,000.00. That phase 2 which is the main contract covers engineering, procurement and construction works. That it was a term of the contract that the defendants, which excludes Bombardier, would arrange financing for the contract and receive payments in milestones after the financial close of the agreement between ZRL/IDC and Foreign Exim bank which would be arranged by TSR. That the works under phase 2 had not commenced and therefore, no payment had been made to the consortium. 2.3 This defence disclosed that during the bidding stage, Bombardier appointed Mr. Hayes to act as its agent and Yapi Merkezi and Yapiray were not informed of this appointment and they were not party to the agreement. That in any event, on the date the said agreement was entered into, Yapiray and Yapi -15- Merkezi were neither partners of TSR consortium nor nominated sub-contractors. That following execution of the contract, the defendants appointed a local representative of the project and that it was at this point that Mr. Hayes demanded payment for services rendered to Bombardier. 2.4 Yapiray and Yapi Merkezi averred that no agreement was entered into by the defendants and Mr. Hayes entitling him, to a success fee of 0.5% of the contract price. That even assuming that he was entitled to this fee, Yapiray and Yapi Merkezi would show that any payment was not yet due as works under phase 2 had not commenced and no payment had been made by ZRL and IDC. 2.5 On the 27th of July, 2022, Bombardier filed its defence. 2.6 It denied appointing Mr. Hayes to act as its agent or consultant for the project. It stated that it was not part of the TSR consortium which secured the main contract with ZRL. Further, that it was part of discussions during 201 7 for the setup of the consortium and that a draft consortium agreement was drafted but never signed by the parties. Eventually, the consortium structure was modified in December, 2020 and the consortium, which submitted an offer within the tender, was formed without it. -16- 2.7 The defence disclosed that on 2 nd January, 2018, an email request was made by a Mr. Bengt Rostlund to Christian Bengtsson of Bombardier for letters authorising Mr. Hayes to have initial talks with Canadian financiers or other potential financiers on behalf of Bombardier. By way of the same email, Mr. Bengt Rostlund sought a letter of similar nature in respect of prospective discussions with corporate representatives of Barrick Mines. That Christian Bengtsson drafted letters pursuant to the request of Bengt Rostlund which were delivered to both Mr. Hayes and Bengt Rostlund via email of 3 rd January, 2018. That the request made by Bengt Rostlund and letters drafted by Christian Bengtsson were limited in scope and unambiguous in that they did not constitute a contract. 2.8 The defence reiterated that Bombardier was not a party to the main contract and that the authorisation letter of 3 rd January, 2018 did not state that a fee would be paid. That further, the said letter did not create contractual relations as claimed. Bombardier denied that it was a TSR partner and added that it was not privy to the rights and obligations which emanated from the contract between TSR and IDC/ZRL. That in addition, it had not entered into any form of sub-contract with Yapi Merkezi and Yapiray. It denied being party to the contract which -J7- was executed on 5 th May, 2021 for the sum of EUR978,093,639.00. Further, that it did not agree to fees of 0.5% of the value of the main contract and that in any event, it was not a party to the contract of 5 th May, 2021. It denied that it was succeeded by Alstom Sverige AB. 3.0 THE EVIDENCE PRESENTED IN THIS CASE 3.1 Mr. Hayes was the first witness in this matter. He testified through his witness statement of 10th November, 2022, that at the material time, he was an investment banker and business advisor carrying on trade in Lusaka. 3.2 That his demand for payment represents compensation for financial advisory and local professional services rendered to the three defendants over a period of 3 years and 3 months that is, 3 rd January, 2018 to 5th March, 2021. That the defendants at the material time were members of a consortium known as TSR. He referred to various documents in his bundle of documents. 3.3 It was his evidence that TSR was formed in 2017 as confirmed by Team Sweden consortium agreement which was represented to him by Christian Bengtsson of Bombardier who led its formation. He revealed that the 3 original partners were Yapiray, Bombardier as leader ofTSR and PT Inka of Indonesia. -J8- That the consortium submitted a tender to ZRL for a rehabilitation project which requested bids from potential suppliers. That by a letter of authorisation of 3rd January, 2018 written by Bombardier as leader of the TSR, he was engaged by the consortium. That on that basis, he rendered his services as local advisor of Bombardier whose major activity at that time was TSR and its objective to get the contract in issue. 3.4 That according to the said letter of authorisation, his engagement was wide and unlimited. He outlined the milestones he achieved as follows: 1. Responded to an agent issue were ZRL claimed 3.6,000,000.00 from Bombardier claimed that Bombardier owed it 3.6,000,000.00; 2. He conducted an exhaustive due diligence with key stakeholders both within and outside Zambia. That for example, he held email conversations with the director of government relations for First Quantum Minerals Limited; 3. He established collaboration with key decision makers at high level on behalf of TSR and facilitated introductions through arrangement of luncheons and dinner event throughout the engagement; 4. On 6 th September, 2018, a mandate was issued by the IDC board instructing IDC and ZRL to work with TSR in order to reach a contractual agreement. That he drafted a TSR proposal to ZRL outlining the full scope of the TSR proposal and it was signed by Christian Bengtsson and presented to the IOC board and a mandate was issued in the affirmative; -19- 5. That on 8th November, 2018, he organised the TSR, ZRL/IDC kick-off meeting in Chisamba for 2 days and he was introduced by Christian Bengtsson as the TSR advisor; 6. He conceived and organised another stakeholder's week long meeting in Lusaka in May, 2019; 7. In May, 2019, meetings provided an opportunity for important introductions during dinner at the Swedish Ambassador's residence in Lusaka and he and Shezad Salim, Bombardier's vice president were introduced; 8. That in May, 2019, a stakeholder week set the stage for agreement on the way forward that funding for the environmental impact assessment and feasibility assessments of the TSR business case was provided by Swedfund. That it was also decided that a request for direct bid status from ZPPA be obtained; 9. That on 2nd July, owing to his services as local advisor, TSR was awarded the direct bid status. That he worked closely with IDC and TSR for a period of 5 months to guide the process through approval; and 10. That on 10th August, 2020, TSR began its contractual negotiations with ZRL and IDC with Christian Bengtsson as representative of Bombardier, the leader of the consortium with 7 other TSR representatives. 3 .5 He testified that on 4th December, 2020, the structure of the TSR changed by mutual agreement of its members and Yapi Merkezi became the leader of the consortium while Bombardier and Inka became nominated sub-contractors on the project. That the reason was to facilitate closure on the negotiations and -JlO- enhance the effectiveness of the TSR, ZRL-IDC collaboration. That control shifted to Yapi Merkezi and Yapiray but the TSR was intact. 3.6 That by email of 4 th December, 2020, he was informed through Yapiray that he would remain vital to the successful inclusion of the effort to win the contract. That he honoured the request and continued to render his services. That on the same day of the leadership change, he was requested by Yapi Merkezi to continue as advisor to TSR in its new partnership configuration. He testified that on 5th March, 2021, the TSR executed its final contract and the following day, he was invited to a luncheon to commemorate the successful contract and to acknowledge his role in the success for effort. That on the 7 th of March, 2021, Yapiray representatives departed the company without responding to his concerns on payment. 3. 7 It was his evidence that on 19th April, 2021, he submitted a draft settlement proposal to Yapiray representatives and their response was that they lacked knowledge of the engagement and acknowledgement with expression of intent to pay at an undetermined time. He disclosed that he held 3 settlement meetings on the 2nd and 3rd of June, 2021, 10th of November, 2021 and 29 th of November, 2021 with representatives of the -Jl 1- consortium. He testified that the change in the structure of the TSR notwithstanding, he rendered his services to all TSR members in good faith from 3 rd January, 2018 to 5th March, 2021. That the defendants had benefited from his professional services for 3 years and 3 months. 3.8 When cross-examined by Mr. Ndalameta, Mr. Hayes confirmed that he is not licenced as an Investment Banker in Zambia. He denied that the letter of authorisation only appointed him as local adviser to Bombardier. He however confirmed that the letter of authorisation does not engage him to prepare or submit a bid to the Zambian government. It was his evidence that when he received the letter of authorisation, he discussed the fees to be paid with Bombardier but that he did not have any documents to prove this discussion. 3.9 When referred to his letter appearing at page 6 of Yapi Merkezi and Yapiray's bundle of documents where he was, among other things, making a claim for payment, he confirmed that in that letter, he wanted to be paid for the period September, 2020 to March, 2021. He confirmed that according to paragraph 2 at page 6 of the said letter were he sought USD70,000.00, he stated that he received USD90,000.00 from Yapi Merkezi and Yapiray. -112- 3.10 When referred to various invoices making up the USD90,000.00 appearing in the same bundle, he confirmed that he never paid tax to the Zambia Revenue Authority (ZRA) on these payments. He denied that what Yapi Merkezi and Y apiray were paying for was different from the appointment by Bombardier. It was his evidence that the termination of his services was earlier than 23rd April, 2021. 3.11 When referred to the work he was supposed to complete as stated at page 6 of Yapi Merkezi and Yapiray's bundle of documents, he admitted not having completed the task of registering Yapi Merkezi and Yapiray in Zambia at PACRA. He further admitted that he neither obtained an investment licence for Y apiray nor register it at ZRA. He also admitted that he did not obtain visas for Yapiray officers. He conceded that he did not obtain ZEMA approvals for Yapi Merkezi and Yapiray. Further, that he did not establish Yapiray's office. He however maintained that he attended to all his obligations as stated in his witness statement. He agreed that he was aware that Yapiray sent Serdar Gedik to come to Zambia and attend to all these tasks. 3.12 When referred to the caption of the contract signed with the government appearing at page 44 ofYapi Merkezi and Yapiray's -J13- supplementary bundle of documents, he refused to confirm that the phrase "plus financing" meant that money for financing the project had to be sourced by the defendants. He agreed that according to clause 14 of the contract at page 162 of the same bundle, there were two phases to the contract. When referred to the milestones he said he achieved in his witness statement, he agreed that the said matters do not fit in with public procurement. He testified that his relationship with the defendants terminated on 5 th March, 2021. Further, that he did not agree that Yapi Merkezi and Yapiray's signing of the contract is not an investment banking matter. He further agreed that he was not aware of any Statutory Instrument that prescribed 0.5% of the contract price as an industry average. 3.13 He agreed that the terms of 0.5% of contract price were not agreed with any of the defendants. Further, that it is different from the 0. 140% he stated at paragraph 1 of page 6 of Y api Merkezi and Yapiray's bundle of documents. He denied that since financial closure had not happened, there was no basis to pay him. When referred to an email by Volkan to himself appearing at page 14 of his bundle of documents, he disagreed that in that email Volkan was referring to payment only during phase 2 and if financing was arranged. -114- 3 . 14 When cross-examined by Mr. Chula, he agreed that the letter of authorisation had no price on it. When referred to an email at page 4 of Bombardier's bundle of documents, he denied that the email from Bengt Rostlund of 2nd January, 2018 was a precursor to him receiving the letter of authorisation. He agreed that the invoices which add up to the ZMW90,000.00 he received were all directed to Y apiray. He agreed that to date, there has been no evidence of any payment to him from Bombardier. When referred to document 35 of his bundle of documents, he stated that it was directed to the TSR consortium. He later changed and stated that it was directed to Yapi Merkezi and Yapiray. 3.15 In re-examination, he testified that the letter of authorisation consisted of Bombardier, PT Inka and Yapiray. That the scope of work in the letter of authorisation was very broad. He testified that the payments of USD90,000.00 were not payments but were meant to cover expenses from the defendants. That it was funding and not payments. He testified that Bombardier may have left the consortium but it were to supply the project therefore, it achieved its objective and ostensibly whether it were a contractor or not, it remained a sub-contractor. -115- 3.16 The second witness for Mr. Hayes was Sinonge Masiliso, former director of Infrastructure at ZRL. His evidence as contained in his witness statement does not talk about the issues that are in dispute before Court. 3.17 He outlined how he met Mr. Hayes and expressed his opinion on the knowledge that Mr. Hayes has in matters of investment. He testified that Mr. Hayes shared a document titled "feasibility" with him and that the document looked familiar since he was director at ZRL. 3.18 When cross-examined by Mr. Ndalameta, he testified that the document labelled "feasibility" was not before Court and that he did not know whether Mr. Hayes had secured £900,000,000.00 finding for the contract. He added that all he knew was that Mr. Hayes was engaged as an advisor but he did not know the terms of his engagement. 3.19 Serdar Erdinc Gedik was the third witness called in this matter. He was called on behalf of Yapi Merkezi and Yapiray. He testified that he is the director and country representative of Yapi Merkezi and Y apiray and was involved in the bid submission process for the ZRL-IDC contract. 3.20 That the first bid was submitted on 27th March, 2020 and contract negotiations ensued around August, 2020 following -116- the issuance of an award letter by JDC on 2 nd July, 2020. He disclosed that the first bid was submitted by a consortium called TSR which at the time was comprised of Bombardier as leader, Yapiray and PT Inka. The TSR comprised of the Yapi Merkezi and Yapiray executed the contract on 5 th March, 2021. 3.21 That phase 1 of the contract covers site investigation works and its value is USD 12,000,000.00 while the main contract covers engineering, procurement and construction works. It was his testimony that it is a term of the contract that the defendants would arrange financing for the main contract, receive payments in milestones after the financial close of the agreement between ZRL/IDC and Foreign Exim bank which would be arranged by the TSR. That financing had not been secured and therefore, the works under phase 2 had not commenced and therefore no payment had been made to the defendants. 3.22 He added that Mr. Hayes was not involved the bid submission process or negotiation stage. That he was introduced to Yapi Merkezi and Yapiray by Bombardier as its local adviser and not representative of TSR. He added that Yapi Merkezi and Yapiray did not engage Mr. Hayes as their representative or consultant and did not co-author the letter of authorisation. Further, that -JI 7- Mr. Hayes was introduced to Yapiray and he offered consultancy services and shared an engagement letter dated 29 th August, 2019 which Yapi Merkezi and Yapiray did not agree to and therefore did not engage him. 3.23 That according to clause 1 of the proposed letter of engagement, parties were to negotiate a success fee prior to signing it and that payment of such success fee would be delayed to the 1st instalment drawdown in accordance with the rehabilitation project schedule. That Yapi Merkezi and Yapiray neither signed nor agreed to the engagement letter and further no success fee was agreed to . That even assuming a success fee was agreed to, it would not be payable until phase 2 works had started. 3.24 When cross-examined by Mr. Banda, Mr. Gedik testified that he was not aware that Mr. Hayes was involved in the bid submission before 24th April, 2020. That the final bid submission was made on 12th February, 2021 and that he was not aware if Mr. Hayes was part of the process because he was not part of it. 3.25 He disclosed that the bid was prepared by a team in Turkey and because it was during Covid, no one from Turkey could be in Zambia personally. As a result, Mr. Hayes was used to submit the documents physically. -JI 8- He clarified that Mr. Hayes participated 1n submitting the documents physically. 3.26 When referred to emails appearing at pages 12 and 15 of Yapi Merkezi and Yapiray's bundle of documents from Volkan Yilmaz, he testified that the email was a request from Mr. Hayes and that Mr. Volkan replied. That in the reply, Mr. Volkan did not agree to the request made by Mr. Hayes where he did not accept the request. As regards the email from Volkan at page 15, his understanding of it was that if Mr. Hayes had participated in the "financement" of phase 2, then payment would have been made to him during phase 2. He testified that there was no written agreement between Yapi Merkezi and Yapiray and Mr. Hayes as regards any payment. 3.27 When cross-examined by Mr. Musumali, Mr. Gedik testified that he had not witnessed Mr. Hayes doing any work for the company. When referred to the first document numbered 18 in Mr. Hayes' bundle of documents which is an email from Celik of Yapiray to Mr. Hayes, he stated that this was a request from Yapiray's finance department asking for a bid. He denied that there were any instructions given to Mr. Hayes in that email. 3.28 When referred to another email appearing as document 10 of Mr Hayes's bundle of documents, he testified that this was -JI 9- another request from Mr. Volkan to Mr. Hayes. He agreed that Yapiray had direct communication with Mr. Hayes. When referred to a photograph numbered document 33 in Mr. Hayes' bundle of documents which is a picture of people eating, he confirmed that Mr. Hayes was in the picture and that people were sharing a meal. He further stated that the picture was taken on the 5th or 6th of March, 2021 just after signing of the contract in Lusaka. He testified that there was no written contract and no termination between Yapi Merkezi and Yapiray and Mr. Hayes. That after the letter of award, Yapi Merkezi and Yapiray continued to submit bids and that for a period of 9 months, they held negotiations with IDC and ZRL. When referred to an email at the bottom of document 14 of Mr. Hayes' bundle of documents, he stated that the email was not a termination of the agreement with Mr. Hayes. 3.29 When cross-examined by Mr. Chula, he confirmed that the invoice at page 1 to 4 of Y api Merkezi and Y apiray's bundle of documents was issued under the name Anapoco Consulting. When referred to a letter at page 5 of the same bundle, he stated that this was a request by Mr. Hayes to provide services to Y api Merkezi. When referred to invoices and payments at pages 25, 28, 35-36 and 43 ofYapi Merkezi and Yapiray's supplementary -120- bundle of documents, he testified that these were payments for services rendered by Mr. Hayes in the 7 months . He agreed that as at 11 th December, 2020, Bombardier was no longer part of the consortium. 3.30 In re-examination, he testified that document 18 which is an email from Celik to Mr. Hayes does not contain instructions for work Mr. Hayes was to do. That it was an offer or request from Mr. Hayes. 3 .31 The 4 th witness in this matter was Volkan Okur Yilmaz, the General Manager in Yapiray. He testified that Yapi Merkezi and Yapiray are part of the consortium called TSR that executed a contract with ZRL/IDC. That the background to this, is that in 201 7, ZRL and JDC invited interested parties to bid for the rehabilitation of the Chingola, Livingstone railway line. 3.32 That on 13th April, 2017, TSR comprising Bombardier, Yapiray and PT Inka submitted the first bid. Following submission of this bid, TSR engaged in direct negotiations with ZRL and JDC and based on the agreed technical scope and financial terms, TSR submitted its final bid on 12th February, 2021. That the final bid was submitted by Yapi Merkezi and Yapiray. That Yapi Merkezi joined the TSR on 21 st December, 2020. It was his evidence that Mr. Hayes was not involved in the bid submission -121- process. That Bombardier introduced Mr. Hayes to Yapiray on 14th August, 2020 but that Mr. Hayes was never introduced as a representative of TSR. He denied that Yapi Merkezi and Yapiray engaged Mr. Hayes to represent them and that this can be seen from his email with Mr. Hayes of 23rd April, 2021 and 1st September, 2021 at pages 12 and 14 of Yapi Merkezi and Yapiray's bundle of documents. 3.33 That following the introduction, Mr. Hayes offered to provide consultancy fees to Yapiray based on terms shown in the letter of 29th August, 2019 appearing at pages 1-4 of Yapi Merkezi and Yapiray's bundle of documents. That however, his request was not agreed to. That when Bombardier introduced Mr. Hayes, it requested for assistance from Y apiray to pay Mr. Hayes for the services that he rendered to it for a period of 8 months. 3.34 That Mr. Hayes invoiced his work in the sum of USD70,000.00 and he was fully paid and in fact received a total sum of USD90,000.00. That he has no basis for demanding 0.5% of the contract price. Further, that in his letter of 14th August, 2020, he proposed a success fee of 0.14% of the contract price and further, that the success fee be paid to him from the first drawdown from the project financing. He referred to a letter at pages 5-7 of Yapi Merkezi and Yapiray's bundle of documents -122- and in particular, clause 1 at page 6. He added that Yapi Merkezi and Yapiray did not agree to Mr. Hayes' proposal and even assuming that Mr. Hayes was entitled to a success fee, it would only be payable from the project financing which financing had not been secured to date. 3.35 When cross-examined by Mr. Banda, Mr. Volkan testified that after Bombardier left the consortium, only Yapi Merkezi and Yapiray remained upto date of his testimony. When referred to document number 27 of Mr. Hayes' bundle of documents, which is a memorandum on the restructuring of the consortium, he disclosed that this was an intention letter to IDC to change members of the consortium. That it discloses that Yapi Merkezi and Yapiray would be members of the consortium with PT Inka and Bombardier as sub-contractors. Therefore, PT Inka and Bombardier are not part of the consortium. He testified that after Yapi Merkezi and Yapiray became a consortium, Mr. Hayes was requested to submit documents prepared in Istanbul. He disclosed that he met Mr. Hayes in 2020 and not 2019. He admitted arranging a trip for Mr. Hayes to Cape Town for purposes of him meeting with legal representatives of Bombardier. -J23- 3.36 He reiterated that Mr. Hayes was rendering services to Bombardier. That despite him making arrangements for Mr. Hayes to travel to Cape town, it did not mean that he was representing the consortium. He admitted that before coming to Zambia, they had asked Mr. Hayes to do a few things. He however denied that Mr. Hayes was representing Yapi Merkezi and Yapiray because he had no letter of authorisation. 3.37 According to him, when they could not be in Lusaka, they used Mr. Hayes as a courier to deliver documents to IDC and in this respect, he was paid. He added that Mr. Hayes requested to go to Tanzania and Yapi Merkezi and Yapiray paid for his trip. He added that Mr. Hayes described himself as a very knowledgeable banker who would assist with financing but that later, they realised that he was not. When referred to an email he wrote on the 4 th of December, 2020 to Mr. Hayes appearing at page 8 of Mr. Hayes' bundle of documents, he insisted that Mr. Hayes was engaged as a courier. When referred to document 5 in Mr. Hayes' bundle of documents, he confirmed that he wrote this email telling Mr. Hayes to pass on instructions to someone and that Mr. Hayes was working as a courier in this case. -J24- 3 .38 It was his evidence that when Yapi Merkezi and Yapiray were in the consortium, Mr. Hayes was working as a courier but before that, he worked for Bombardier. He denied that Mr. Hayes worked as its agent. He recalled that Yapi Merkezi and Yapiray failed to agree on fees with Mr. Hayes. 3 .39 When cross-examined by Mr. Chula, he disclosed that the invoice of 23rd August, 2021 numbered as document 35 in Mr. Hayes' bundle of documents was sent to Yapi Merkezi and Yapiray by Mr. Hayes. He stated that Mr. Hayes did not secure financing for phase two and therefore, he did not provide any intermediary. 3.40 In re-examination, it was his evidence that Mr. Hayes was paid USD90,000.00 for his services. 4.0 MR. HAYES' SUBMISSIONS 4.1 On the 2nd of March, 2023, Mr. Banda and Mr. Musumali filed final submissions on behalf of Mr. Hayes. They began by giving an introduction and background to the case. They also outlined the issues for determination as considered by Mr. Hayes. 4.2 On whether there was a cause of action in this matter, they submitted that the letter of authorisation and the continued offering of services to the TSR shows that there was one. Counsel referred me to Order 15 rule 1 (3) of the Rules of the Supreme -125- Court, 1999 and William David Carlisle Wise v. E. F Hervey Ltd.<1 > 4.3 On whether Mr. Hayes was duly appointed through the letter of authorisation, it was his submission that the said letter clearly states that Mr. Hayes was appointed as local advisor. Counsel referred me to the case of Craven Ellis v. Canons Limited<2 > which established the principle that if a plaintiff has done work for a defendant on the assumption that a contract exists between them, but the contract is in truth a nullity, he may obtain reasonable remuneration for his work by suing in quasi contract on a quantum meruit. That the obligation to pay reasonable remuneration for work done where there is no binding contract is imposed by a rule of law and not by an inference of facts arising from the acceptance of goods. It was his submission that the said principle had been applied in the case of DP Services Limited v. Municipality of Kabwe.<3 > 4.4 On whether the defendants were jointly liable for the professional services rendered to the TSR by Mr. Hayes notwithstanding the change in leadership of the consortium, he invited me to note that Bombardier continues to be a nominated sub-contractor and therefore, a stakeholder in TSR. He invited me to consider the case of Smith v. Hughes<4 > on construing the real intentions from the way a party conducts himself. That in -126- the present case, the TSR through the letter of authorisation caused Mr. Hayes to render his services to the consortium for 3 years and 3 months. That according to the law of agency, all he did was ratified by the defendants. He concluded by stating that Mr. Hayes was a duly appointed agent of the defendants and that his services went beyond initial talks with financiers. 4.5 On whether Yapi Merkezi and Yapiray having benefited from the professional services rendered from the 3rct of January, 2018 to 5 th March, 2021 are jointly liable with Bombardier to pay the renumeration for the work done, he submitted that Mr. Hayes and Yapi Merkezi and Yapiray were unable to agree on fees or compensation payable following the termination of their engagement. That given that the defendants questioned Mr. Hayes' appointment, the case of Craven Ellis v. Canons(2l referred to above, is an appropriate point to note. 4.6 On whether notwithstanding the change in the TSR leadership on 11 th December, 2020, Bombardier remained a part of the TSR and a beneficiary of Mr. Hayes' services on account of the 100% financing package arranged by Born hardier through the Export Credit Agency of Sweden, he submitted that the defendants' second witness failed to explain the contradictions that show that Bombardier was still a member of the TSR. That -J27- this is shown in the bill of quantities at page 31 of Yapi Merkezi and Yapiray's supplementary bundle of documents and the attendees of the meeting for the minutes at document 48 in Mr. Hayes' supplementary bundle of documents. Counsel contended that Bombardier remained a partner in the TSR. He relied on Section 74 (1) and (2) of the Public Procurement Act of 2020 which prohibits the assigning of a contract to a third party. That the fact that Bombardier was appointed as a nominated sub contractor to perform signalling and system integration on the project means that it remained a member of the consortium. He went on to refer to Regulation 22 paragraph 2 and 3 of the Public Procurement Regulations 2011 on the role of a lead bidder. 4. 7 On whether Mr. Hayes was entitled to professional remuneration for the work done, he invited me to consider the case of Base Chemicals Limited v. Zambia Airforce and Attorney General(5> as well as Kansanshi Mining v. Francis Ndilila T/A Ndilila Associates. Architects<5 > which endorsed the concept of quantum fees based on custom and usage. He submitted that Mr. Hayes is on firm ground to demand payment of 0.5% of the contract price as an average chargeable in his profession. 4.8 On whether or not Bombardier was jointly liable with Yapi Merkezi and Yapiray for remuneration for the services rendered, -]28- counsel submitted to a large extent on the law of agency. He relied on Garnac Green Company Ink v. HMF Faure and Fairclough<7l as well as Way v. Latilla.<0l He submitted that Bombardier having appointed Mr. Hayes as local advisor was liable as a legal obligation to pay him for the two-year period he worked directly for them. That even though there was no scope of works in the letter of authorisation, the contract was legally enforceable and created rights for Mr. Hayes to seek remuneration or commission from Born bardier. 5.0 YAPI MERKEZI AND YAPIRAY'S FINAL SUBMISSIONS 5.1 On the 17th of March, 2023, Mr. Ndalameta and Ms. Nalishuwa filed final submissions on behalf of Yapi Merkezi and Yapiray. 5.2 They began by giving a summary of the documents filed on record and the evidence. Counsel contended that Mr. Hayes had no cause of action against Yapi Merkezi and Yapiray as there is no factual situation establishing a right by which he can claim against them. To this end , they relied on the following authorities; 1. William David Carliste v. E. F. Hervey Limited.< 1l 2. Manharial Harji Patel v. Surma Stationers Limited;<9land 3. Patrick Matibini, Zambian Civil Procedure: Commentary and Cases Volume 1 at page 139. -129- 5.3 That the letter of authorisation shows that Mr. Hayes was engaged by Bombardier as its local advisor. That despite the letter of authorisation, Mr. Hayes claimed that he was engaged to ensure that the defendants' contract with ZRL and IDC was signed. That this argument cannot be tenable as the tender in question went through the procurement process. Counsel went on to refer me to Section 32 of the then Procurement Act as read with Regulation 17 of the Procurement Regulations which provides for direct bidding as a method of procurement. They contended that the process went through all the stages and counsel outlined them as contained in regulations 111, 113, 114, 115 and 120 of the Procurement Regulations. 5.4 On whether by the letter of authorisation, Mr. Hayes was duly appointed to represent the TSR, counsel reiterated the position that the letter of authorisation shows that Mr. Hayes was engaged by Bombardier. They argued that the case of Craven Ellis v. Cannon Limited<2 > relied on is different from the present case. That in the Craven Ellis case, there was a contract of employment executed by the parties which is not the situation in the present case. 5.5 That further, the DP Services Limited v. Municipality of Kabwe< 3 > can also be differentiated from the present case. That in that case, -130- there was proof of correspondence between the parties to the effect that the respondent accepted liability to the appellant in connection with at least 3 financial years. That further, the Court found that the appellant was a firm of professional accountants and that the employment of a person in a professional capacity raises a rebuttable presumption that he is to be paid for those services. 5.6 That in the present case, there is no correspondence flowing between Mr. Hayes and Yapi Merkezi and Yapiray agreeing that he would act as their local advisor and that he would be paid EUR4,890,468.20. Counsel outlined the services which Mr. Hayes offered to give as stated at pages 1 to 4 of Yapi Merkezi and Yapiray's bundle of documents. That it was established at trial that Mr. Hayes did not perform the scope of work he offered. Further, that he confirmed that he did not register Yapi Merkezi and Yapiray in Zambia and admitted that he did not know who attended to the incorporation of Yapiray. 5. 7 On whether the defendants are jointly liable to pay remuneration for the professional services rendered to the TSR, counsel heavily relied on the principle of privity of contracts to the letter of authorisation. They relied on the learned author G. H. Trietel on the Law of Contracts, 11 th edition at page 582. -131 - 5.8 As regards liability, counsel argued that Article 3 of the consortium agreement sets out the scope of work for each party which is distinct. That further, Article 5 of the consortium agreement provides that each party to the agreement is to be responsible for all the management of its respective scope. That therefore, were Bombardier authorised Mr. Hayes to act as its local advisor, the same was limited to his scope and such authorisation cannot be pinned upon and enforced against Yapi Merkezi and Yapiray. 5.9 On whether Yapi Merkezi and Yapiray having benefited from the professional services rendered by Mr. Hayes are jointly liable with Bombardier, counsel repeated their submissions above. That even assuming that Mr. Hayes was entitled to payment from Yapi Merkezi and Yapiray, the invoice of 19th February, 2021 was drawn by him in his capacity as managing director of ANAPOCO. That the same was settled by Yapiray which made payments to Mr. Hayes in the sum of USD90,000.00. That therefore, he was remunerated and is not entitled to be remunerated again. 5.10 As regards the removal of Bombardier from leadership of the TSR, counsel submitted that the same had no impact on the relationship established between Mr. Hayes and Bombardier. -132- That although Bombardier was ultimately not the lead, it had issued the letter of authorisation. Counsel reiterated their position that Yapi Merkezi and Yapiray were strangers to the purported letter of authorisation and that a third party to a contract cannot enforce or be seen to seek fulfilment of an obligation under it. 5.11 On whether Mr. Hayes was entitled to professional remuneration for the work done, they submitted that he had not produced any evidence to show that he is licenced to practice as an investment banker. That therefore, he cannot claim payment for professional services rendered. That it is his obligation to prove what he alleges. Counsel relied on the case of Harja Import and Export Limited v. ZRA.< 10 > Further, that the case of Kansanshi Mining Pie v. Francis Ndilila<5 > relied upon by Mr. Hayes does not help him as it dealt with the award of fees based on the concept of custom and usage in the profession of architects. That since he is not a licenced investment banker in Zambia, he is not regulated by any professional body for any argument on custom and usage to make commercial sense. 5.12 On whether Bombardier was jointly liable with Yapi Merkezi and Yapiray for the remuneration for services rendered by Mr. Hayes from the time of appointment, they submitted that there -133- was no contract or agreement between Yapi Merkezi and Yapiray and Mr. Hayes. He relied on Ringford Habwanda v. Zambia Breweries. < 11>That if the Habwanda case were relied on to ascertain whether or not there was intent by Yapi Merkezi and Yapiray to be bound by the letter of authorisation, the same would not be answered in the affirmative because the correspondence would show that the letter of authorisation had been prepared by Bombardier. 5.13 With regards to intention, Mr. Ndalameta and Ms. Nalishuwa submitted that GH Treitel on the Law of Contract, 11 th edition at page 162, advances a position that an agreement, though supported by a consideration, is not binding as a contract if it was made without any intention of creating legal relations. That the review of the record in the present case, does not point to an intention by Yapi Merkezi and Yapiray to be bound by the letter of authorisation. 6.0 BOMBARDIER'S FINAL SUBMISSIONS 6.1 On the 17th of March, 2023, Mr. Chula filed final submissions on behalf of Bombardier. He began his submissions by relying on the case of Khalid Mohammed v. Attorney-Genera1< 12 > and Masauso Zulu v. Avondale Housing Project<13 > on the need for a plaintiff to prove his case regardless of the defendants' case. -134- 6.2 He submitted that the letter of authorization was meant for Mr. Hayes to have initial talks with a Canadian Pension Fund or other potential financiers. He referred me to the email at page 4 of Bombardier's bundle of documents to show this. That the letter of authorisation was issued in response to Mr. Hayes' need to be given audience by third parties and not to act as an agent for Bombardier. 6.3 He added that the letter of authorisation lacks elements to form a binding contract or intention to create contractual legal relations and it lacks certainty to its terms and conditions, therefore, unenforceable. He relied on the case of Dangote Industries limited v. Enfin<14 > to support his submission. 6.4 On formation of the contract, counsel highlighted the various aspects of a contract. That there has to be agreement, contractual intention and consideration. That in answering the question whether there is agreement, the Courts have applied an objective test that is, if the parties have to all outward appearances agreed in the same terms upon the same subject matter neither can generally deny that he intended to agree. That it is evident from Mr. Hayes' pleadings that there is a disconnection between Bombardier's intention in sending the unambiguous letter of authorization and a scope of work that -135- Mr. Hayes carried out in accordance with the interpretation of the authorization letter. 6.5 Counsel pointed out the definition of an offer as discussed in Sweet and Maxwell in Chitty, 25th edition, volume 1 at page 26 as well as acceptance in the same book at page 33. He went on to highlight the case of Kennedy v. Lee(15 l and Tailor v. Allon<15l on the aspect that the primary function of contract law is to facilitate such exchanges by providing a reasonable assurance that each party would be held to his undertaking. That the construction of the authorization letter is significantly important when considering the value of the amount being claimed by Mr. Hayes. That even if the Court were to make one of the following determination that there was a contract or a quasi- contract or a justifiable claim in quantum meruit, Mr. Hayes had failed to produce evidence of any substantive work. 6.6 He highlighted the case of Nico Coultis Transport Limited v. Buks Haulage Limited(17l where the Court of Appeal stated that proving a fact in dispute is different from giving examples. That Mr. Hayes was giving examples as stated in his paragraph 9(b) of his witness statement. Counsel went on to state that the letter of authorization was non-binding on the parties. He further contended that it was not certain as to the type of service, -136- mission and purpose of the contract. Further that it was too remote and was not intended to create legal relations. He relied on Clifton v. Palumbo. < 19l 6. 7 Counsel went on to discuss the issue of price and its importance in a contract. To this end, he referred me to May and Butcher Limited v. Keen.<19l He went on to discuss the evidence and cross examination by Mr. Ndalameta and himself. He further discussed the notice of award and public procurement as provided for under the Public Procurement Act 2008, as amended by Act No.15 of 2011. 6.8 Mr. Chula submitted that having dropped out of the consortium, Bombardier was no longer to derive any benefit from the final contract between ZRL and IDC on the one hand and Yapi Merkezi and Yapiray on the other. That further, Bombardier is not even guaranteed a sub-contract from Yapi Merkezi and Yapiray. 6.9 He contended that Yapi Merkezi and Yapiray commenced engaging directly with IDC with two updated letters of tender and a further two final letters of tender. Counsel also discussed the payments made by Yapi Merkezi and Yapiray to Mr. Hayes. He invited me to note that no single payment was made by Bombardier to Mr. Hayes and further that the invoices on -137- record were not directed to Bombardier. That this is because Mr. Hayes was fully aware that he had no contractual right whatsoever against Bombardier. 6.10 Counsel went on to respond to Mr. Hayes' submissions which were more or less a repetition of his submissions above. He submitted that the case of Kansanshi Mining v. Francis Ndilila(5l is not applicable as Mr. Hayes is not a registered architect where fees are governed by statute and as such, his analogy was misplaced. That a local advisor does not belong to any profession that attracts professional fees. 7.0 MR. HAYES' SUBMISSIONS IN REPLY 7.1 On the 27th of March, 2023, Mr. Banda filed submissions in reply. However, I shall not repeat the submissions here as they are more or less a repetition of the earlier final submissions. 8.0 CONSIDERATIONS, FINDINGS AND CONCLUSION 8.1 Before I begin analysing the evidence in this case, I wish to state that Bombardier did not call any witnesses. However, I note that in the final submissions, Mr. Chula referred to documents contained in Bombardier's bundle of documents. It should be noted that witness statements have to refer to specific documents in the bundle. If there is no witness statement -J38- referring to the bundle, the bundle is as good as useless. This is because neither counsel nor the Court can speak to, or interpret, the documents in the bundle. The witness statement explains what the specific documents referred to are about. Therefore, even if Mr. Chula referred to the said bundle in his submissions, the reference cannot be taken as speaking the truth of the contents of the bundle because no one spoke to the documents sought to be relied on. 8.2 I also wish to comment on the manner documents were prepared by Mr. Hayes in this case. In his witness statement, Mr. Hayes referred to documents. However, his bundle of documents was not properly prepared. Instead of numbering pages, it numbered documents such that there were documents with one number. For example, a lot of pages had the number 18 and it was difficult for this Court to follow. Further, during trial, it became apparent that the bundle of documents on record was different from the bundles the parties had in terms of the numbering and arrangement of documents. This posed a challenge when documents were referred to during trial in that it was not clear which document was speaking to what paragraph of the witness statement and whether the Court and the parties were looking at the same document. -J39- 8.3 For example, under paragraph 9(b) of his witness statement, Mr. Hayes referred to document 18 in his bundle. However, there are so many documents numbered 18 in the bundle therefore leaving it to the Court to guess which one. It should be noted that it is not the role of the Court to attach evidence to a party's statement or vice versa. The statement ought to be clear as regards what document it refers to. Mr. Hayes' witness statement failed to meet this elementary requirement of the rules of procedure. 8.4 In saying the above, I rely on the provisions of Order XXXI Rules (1 ), (2) and (3) of the High Court Rules as amended by SI No. 58 of 2020. These Rules say that- (1) Each of the bundles under Order XIX shall- a. be bound up in book form in chronological order; b. have the pages thereof serially numbered; c. . contain a complete index of the contents thereof; d. bear the receipt number of the fees paid on filing; and e. be endorsed on a back sheet thereon the title of the action, together with the names, physical addresses, email addresses and telephone numbers of the advocates for the parties, or, in the case of a party who has no advocate, of that party. (2) The documents shall be clear and legible. (3) A bundle which does not comply with the provisions of sub rule (1) shall not be accepted for filing. -140- 8.5 The above notwithstanding, I have considered all the documents in the bundle, the pleadings, the evidence adduced and the submissions filed. I have also carefully analyzed the authorities cited and their applicability to the case before me. I decided to consider the bundle on grounds of access to justice and abiding by Article 118(2)(e). More so that there was no application to strike it out. 8.6 From the evidence, it is clear that the relationship leading up to the claim by Mr. Hayes started with his appointment as local advisor by Bombardier. This appointment was through a letter of authorization. 8.7 This letter is dated 3 rd January, 2018 and appears as document (1) in Mr. Hayes' bundle of documents. It is as follows: "Jimm Hayes Lusaka, Zambia Letter of authorization Dear Sirs, Team Sweden Railway, led by Bombardier Transportation Sweden, is currently working together with the Ministry of Finance, Ministry of Transport, IDC and Zambia Railways Limited to provide a cost effective and sustainable offer to rehabilitate the railway in Zambia. Mr. Jimm Hayes is the local advisor of Bombardier Transportation Sweden and has the authorization to engage in financial matters related to the rehabilitation of railway in Zambia. -J4 l- Best regards. Signed Christian Bengtson Head of Swedish Rail Export Programme."[underlining for emphasis only] 8.8 It is clear from the above letter that Christian Bengtsson of Bombardier introduced Mr. Hayes as the local advisor of Bombardier. The letter is clear in this regard. Despite Bombardier leading the consortium, the letter of authorization stated that he was its local advisor. The letter did not say that he was the local advisor for the TSR. 8.9 The question therefore, as regards Bombardier is whether Mr. Hayes performed the task as local advisor and whether he is entitled to be paid. 8.10 The evidence before Court will show that apart from the letter of authorization, there was no other written agreement between Mr. Hayes and the defendants. However, from the conduct of the parties, it can be discerned that Mr. Hayes and the defendants had a relationship. I say so considering firstly documents 3 to 7, 19 to 21 of Mr. Hayes' bundle of documents. These documents show that there was a demand by ZRL from Bombardier Transportation Denmark AS of USD3.6 million it paid as advance payment. The documents show correspondence between Mr. Hayes and Christian Bengt and -142- Volkan Okur Yilmaz, the witnesses for Yapi Merkezi and Yapiray. The correspondence shows that the three were trying to resolve the issue surrounding the demand made by ZRL against Born bardier. 8.11 Further, document 10 in Mr. Hayes' bundle is an email from Volkan Yilmaz. It states as follows, in part: "Hi Jim As told on the phone, I am here summarising our needs from your side; Please talk with IDC, let them focus on singing the main contract first. ZRL is still opening the new subject about the scope of Trackwork. They must close and fix the scope because they have already been informed that the cost of the additional scope. Now, ZRL should accept it or refuse it, that's all. And then, we start the price negotiation with IDC from the overall price of the contract. Why I am saying that because ZRL now is asking even 5 USO/rail meter workmanship prices, this is very silly for now. This contract is an EPC contract and lump sum; therefore, we should degree on the top price and sign the contract after deciding on a clear scope. Please talk with IDC and inform them ZRL must fix the scope first then, we will gather the PT and BT pricing and prepare the consolidated top price and come and agree with IDC ... " [underlining for emphasis only] 8.12 On the 8th of August, 2019, Onur Celik of Yapiray wrote the following email to Mr. Hayes: -143- "Hello Mr. Jimm Hayes, We as Yapiray, in order to carry out the project (Zambia) effectively which is expected to be carried out in accordance with the current budget conditions, your precious support is expected to solve the problems related to the following tax topics ... " 8.13 On 30th July, 2020, Mr. Hayes wrote an email to Volkan Yilmaz and Christian Bengtsson. In this email, he was giving Yapi Merkezi and Yapiray's two witnesses an update on the issues surrounding the contract, the stage of negotiations, the work he had done and what he thought needed to be done going forward, among other things. 8.14 The fourth document 18 in Mr. Hayes' bundle is an email from Mr. Hayes to Muchindu of IDC. In that email, Mr. Hayes began by apologising for words used by Christian in a letter of 23 r d April. He further shares an unsigned copy of the consortium agreement and goes on to clarify certain issues from Christian's communication. 8 . 15 From the above communication, it is clear that Mr. Hayes was working with the defendants in getting the ZRL/IDC contract. It is also clear that his role went beyond submission of documents. He provided advice to the defendants and acted as an intermediary with ZRL/IDC. Christian and Volkan also engaged him on a number of issues and gave him tasks. This is -J44- not to say that he performed all his tasks as he admitted in his cross-examination that he didn't . 8.16 I must add that during trial, Volkan admitted having sponsored Mr. Hayes on trips to South Africa and Tanzania. In further cross-examination, he testified that Mr. Hayes was sponsored to South Africa to meet legal representatives of Bombardier. 8.17 The question I ask is why Yapiray would sponsor Mr. Hayes to meet Bombardier's legal representatives. The only logical answer is that Yapiray had an interest in the meeting. In my view, the above conduct by the defendants shows that there was an agreement with Mr. Hayes for performance of the tasks he performed. 8.18 I must state that a contract can be construed from the conduct of the parties. I say this on the authority of Gibson v. Manchester City Council(20>where the Court held that- "if by their correspondence and their conduct, you see an agreement on all material terms, which was intended thence forward to be binding, then there is a binding contract in law even though all the formalities have not gone through ... " 8.19 In the present case, an objective construction of the conduct and email correspondence above shows that despite the letter of authorisation having come from Bombardier, Yapiray and Yapi Merkezi, by the conduct engaged Mr. Hayes as well. -J45- 8.20 My views above, are further fortified by among other emails, the following: 1. The email of 23rd of April, 2021 from Volkan to Mr. Hayes. It reads, in part, that- "Thank you for your consulting services until now about the Zambia rehabilitation project. Your consultancy services will be compensated as we agreed before during phase i ... " [underlining for emphasis only] 8.21 Apart from confirming that Mr. Hayes performed consultancy services to Yapiray, the use of the phrase "until now" which is under-lined shows that there was a contract for consultancy services between Y apiray and Mr. Hayes which was terminated on the 23rd of April, 2021. 8.22 The email of 23rd April, 2021 at page 12 of Yapi Merkezi and Yapiray's bundle of documents says in part as follows: " ... You have been introduced to us by Bombardier at the beginning and thank you for your consulting services until now about Zambia. As we Yapi, are ready to provide compensation to you for your services on the mutual agreement based between us under the agreed condition previously ... " [underling for emphasis only] 8.23 Again, the above email is an acknowledgment by Yapiray that Mr. Hayes was entitled to compensation. This acknowledgment for compensation confirms the existence of a contract with Mr. Hayes. -146- 8.24 Yapiray and Yapi Merkezi contended that Mr. Hayes was already paid USD90,000.00 for his services. These payments were on 19th February, 2020 (USD25,000.00), 26th August, 2020 (USD20,000.00), 28th December, 2020 (USD20,000.00) and 21 st January, 2021 (USD25,000.00). 8.25 Mr. Hayes contended that these payments were for operations. Yapiray and Yapi Merkezi contended that the payments were for his consultancy. 8.26 A review of the narrative on the remittance information on the payments says "commission fee related to local support in the confirmation of contract terms for the rehabilitation and modem Zambia Railways Limited." The rest of the payments all show "consultancy fee". Therefore, the documents speak for themselves. The understanding was that the payments were for consultancy or commission fees. I accordingly find that the USD90,000.00 paid to Mr. Hayes was commission fees and not operations. 8.27 The question I wish to address at this point is whether Mr. Hayes is entitled to payment of "EUR4,890,468.20 as a reasonable amount being 0.5% of the relevant contract price" as claimed in his pleadings and witness statement. 8.28 On 29th August, 2019, Mr. Hayes wrote what he termed as -J47- "engagement letter to Yapiray". This letter was written under the letter head of a company called "Anapoco Consulting". Paragraph 4 of the said letter was as follows: "Our Fees In terms of our formal engagement and authorization to represent Yapiray here in Lusaka, we require a 'signed engagement agreement' and the engagement fee of $30,000.00 USD upon signing the engagement letter. The fee will be considered due and payable upon completion of all negotiations associated with the subject matter of this proposed engagement. However, the actual payment may be delayed until the first instalment is drawn down in accordance with the rehabilitation schedule." [underlining for emphasis only] 8.29 It would appear as if the proposed letter of engagement above was not concluded because on the 14th of August, 2020, Mr Hayes wrote another letter to the consortium. It appears at pages 5 to 7 ofYapi Merkezi and Yapiray's bundle of documents. Paragraphs 1 and 2 of the said letter say- "REGARDING THE THREE MAIN POINTS OF OUR DISCUSSION 1. 2018 to now. relates to "performance and Compensation: A success fee equivalent to 0.140 percent (zero point one-four%) of the total contract value is modest. In terms of a payout schedule, the fee should be paid within 30 days following the first drawdown from the project financing. Bear in mind that the project has been delivered after a period of 32 months without contract and no financial support for 12 months. The success fee on the other hand will remain delayed until after yet another milestone has been achieved. As mentioned earlier, I must -J48- remain engaged in order to achieve financial closure. 2. Now Until Close of Contract and Financial Closure (Sustainability): For the next seven months (September through February) an amount of USD70.000.00 should be adequate. As mentioned earlier, I must remain engaged. I need to reach agreement with legal counsel and continue to support IDC and its Board relative to the contract proceedings. Yapi must have as much support as required in order to mobilize for the site investigation. I am preparing a separate document for that purpose. Financial close is imperative and leaving things to chance at IDC-MOF would be leaving matters hanging in the balance especially since I have already engaged various contracts in Sweden regarding the finance issue in its entirety." [underlining for emphasis only] 8.30 Although there is no acknowledgement of this correspondence on record, the defendants did not dispute it. He proposed USD70,000.00 for the next 7 months and this was paid to Mr. Hayes. An initial USD20,000.00 had been paid to him on the 19th of February, 2020 making the total USD90,000.00. What he claims now is 0.5% of the contract price although he had proposed 0.140% of the total contract value in the above letter. 8.31 It is pertinent to note that there is no proof that the proposed success fee was agreed by the parties. However, it is clear that Yapiray and Yapi Merkezi performed some of the clauses in the letter. This can be seen from the payment of the USD70,000.000 for the ensuing 7 months after the letter. My -149- finding above is fortified by the email of 23rd April, 2021 from Volkan to Mr. Hayes where he stated that the consultancy fees would be paid in phase 2 as agreed. There is no claim for the period before that and it would appear that the commission fees paid covered all the work he did and what remained is the success fee. 8.32 I note that Mr. Hayes claimed payment on a quantum meruit basis. This argument was in the submissions. There was nothing in the pleadings. Despite it not having been pleaded, I will consider it on the authority of D. P Services Limited v. Kabwe Municipality<3 ) referred to above where the Supreme Court held that- Although the words "quantum meruit" have not been used in the pleadings, this in no way debars a party from being entitled to judgment for such a claim. 8.33 The above authority shows that this court can consider a claim for quantum meruit even if there was no pleading for it. 8.34 Having said the above, I draw solace from the learned authors of Halsbury's Laws of England, Vol. 8 paragraph 390 on when this relief is available. The authors put it this way- "If services are rendered and accepted in pursuance of an agreement which is unenforceable, remuneration is payable on the basis of a quantum meruit." [underlining for emphasis only] -J50- 8.35 What is cardinal from the above is that quantum meruit is available where there is a contract but this contract is unenforceable. There is no contract which is unenforceable in the present case. 8.36 The question to be answered at this stage is whether the contract by conduct in this case entitled Mr. Hayes to EUR4,890,468.20. Mr. Hayes has not shown how he is entitled to this fee. He relies on the Ndilila case on custom but has not explained which custom applies to the work he was doing. In any case, he conceded that he is not registered with any professional body in Zambia to practice as an investment banker. 8.37 Further, there is no agreement anywhere in the evidence which shows that the parties agreed to the amount claimed. What is clear is that Mr. Hayes proposed a success fee of 0.140% of the total contract price. Although there was no agreement to this, Yapi Merkezi and Yapiray partially performed this proposal through payment of the USD70,000. This showed acceptance of the said agreement. 8.38 My finding that the terms above were agreed by Yapi Merkezi and Yapiray are fortified by the emails of 23 rd April, 2021 to the effect that payment to Mr. Hayes would be paid during phase 2. -JS 1- 8.39 Further, the evidence on record shows that there has been no finding or financing for the project. It follows that Mr. Hayes by terms proposed by him, is not entitled to payment at this stage. 8.40 According to the letter of 14th August, 2020 referred to above, the success fee was to be paid within 30 days following the first drawdown from the project financing. It is not in dispute that there is no project financing for the project yet. It follows that Mr. Hayes' success fee has not accrued. It will only accrue 30 days following the first draw down from the project financing. 8.41 It should be noted that as the person alleging, Mr. Hayes is obliged to prove his case on a balance of probabilities. See: Masauso v. Avondale Housing Project.( 13l 8.42 In the present case, he has proved that he is entitled to payment not at 0.5% but 0.140% of the contract value. Further, this amount is to be paid to him within 30 days following the first drawdown from the project financing. 8. 43 I must add that the evidence before me shows that Mr. Hayes initially started by working after being engaged by Bombardier. He was introduced to Yapi Merkezi and Yapiray by Bombardier. There was no termination of the agreement by Bombardier and the termination of his services was by Y apiray in an email of 23rd April, 2021 appearing as document 14 of his bundle of -152- documents. I agree that this email was not copied to Bombardier. However, there is no letter of termination of his services as local advisor for Bombardier. However, the services he was offering were for one project and the intention was that the work was for all three defendants. This is also apparent from the fact that Y api Merkezi and Yapiray were active in resolving the issue surrounding the claim of USD3.6 million by ZRL from Bombardier. 8.44 Further, the evidence that he traveled to Cape Town to meet Bombardier's legal team was not refuted. This shows that the defendants were all benefiting from Mr. Hayes' services. Mr. Hayes contended throughout his testimony that the defendants were working as one. Therefore, it shows that if he had this understanding, the invoices he sent and the payments he received of USD90,000.00 was for the services rendered to all defendants. There is no evidence on record that he billed Bombardier separately or that he claimed any fee from it separately. I, therefore find that the payment of USD90,000 was a commission for the work Mr. Hayes did for all the defendants. 8.45 All in all, I find that Mr. Hayes has not proved his claim for EUR4,890,468.20. I further find that his entitlement to 0.014% of the contract sum has not yet accrued. It will -J53- accrue 30 days following the first draw down from the project financing. 8.46 Due to the nature of this case and considering that the plaintiff, though successful, brought this claim prematurely, I order that each party bears their own costs of these proceedings. Delivered at Lusaka this 8 th day of May, 2023. K. E. Mwenda-Zimba HIGH COURT JUDGE -)54-