MTN Zambia Limited v Investrust Bank PLC (Appeal 155 of 2015) [2016] ZMSC 36 (9 March 2016)

',. Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Appeal No. 155/2015 SCZ/8/218/2015 BETWEEN: MTN ZAMBIA LIMITED APPELLANT AND INVESTRUST BANK PLC RESPONDENT Coram: Chibomba, Malila and Kaoma, JJS on 1st March, 2016 and 9th March, 2016 For the Appellant: Mr. W. Mwenya of Messrs Lukona Chambers For the Respondent: Mr. N. Nchito, SC, of Messrs Nchito & Nchito Jun GMENT Malila, JS delivered the judgment of the court. Cases referred to: 1. Nkata and Four others v. Attorney General (1966) ZR 124. 2. Attorney General v. Marcus Kapumba Achieme (1983) ZR 1. 3. Kenmuir v. Hattingh (1974) ZR 162. 4. Augustine Kapembwa v. Danny Maimbolwa and Attorney General (1981) ZR 127. 5. Zambia Revenue Authority v. Dorothy Mwanza and Others (2010) Vo/.2 ZR 181. J2 6. Clement H. Mweepe v. Attorney General, International Police, Avis Rent- a-Car (2012) ZR (2) 7. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 8. Mountstephan v. Lakeman (1871) LR7 QB 196 at page 202. 9. Meschi v. Lep Air Services Limited (1973) AC 331 10. Selly Yoat Asset Management Limited v. Remotesite Solutions Zambia Limited (2010)(2) ZR 35 Legislation referred to: 1. Chitty on Contracts: Specific Contracts, Vol. 2, 27th ed. para 42-001 2. Chitty on Contracts: Specific Contracts Volume II page 1553 This appeal is against a judgment of the High Court given on the 29th of July, 2015 in which the appellant's claim against the respondent, as guarantor of a certain facility, was dismissed. The appellant (as plaintiff in the High Court) took out an action against the respondent (as 1st defendant) and Celpay Zambia Limited (as 2nd defendant), seeking in the main, payment by the respondent of the sum of K5,000,000,000 deemed payable to the appellant under a Payment Guarantee dated 10th February, 2012 given by the respondent in favour of the appellant to secure payment of all sums collected by Celpay Zambia Limited from the appellant's distributors under an agreement dated 22nd February, J3 2010 together with interest; and damages for breach of contract against Celpay Zambia Limited specifically, and other ancillary relief. At the time of the trial, a default judgment had been entered against Celpay Zambia Limited, which remains subsisting. The learned High Court judge crystalised the issue for determination as revolving on the construction of the Payment Guarantee, in particular, the purpose of the Payment Guarantee given by the respondent in favour of the appellant. While the appellant contended that the purpose of the Payment Guarantee was to secure the remittance to the appellant of the monies collected by Celpay Zambia Limited from the appellant's distributors under the contract of 22nd February, 2010, the respondent maintained that the Payment Guarantee was intended to secure payments in respect of airtime stock which Celpay Zambia Limited was to purchase from the appellant on credit. • J4 After assessmg the testimonies of the parties' witnesses, and upon perusal of the documentary evidence submitted, as well as appreciation of the rival arguments advanced by counsel for the parties, the learned judge came to the conclusion that the Payment Guarantee was intended to secure all payments respecting airtime which Celpay Zambia Limited purchased on credit from the appellant, provided that such airtime stock was released to Celpay Zambia Limited with the approval of the respondent in terms of the provisions of Clause 9 of the Payment Guarantee. The learned judge held that the appellant had failed to show that the debt which Celpay Zambia Limited incurred arose from stock it obtained on credit and which was released with the approval of the respondent. The respondent's liability under the Payment Guarantee had not, according to the learned judge, arisen. He dismissed the appellant's claim on this basis. Disenchanted by that decision, the appellant launched the present appeal, fronting five grounds set out in the Amended Memorandum of Appeal as follows: J5 GROUNDONE 1. The trial judge in the court below erred in law and fact when he held that the facility letter dated 30th January, 2012 referred to an Agreement for credit sale of airtime between the Appellant and Celpay Zambia Limited. GROUNDTWO 2. The trial judge erred in law and fact when he suggested that the reference to the Agreement dated 22nd February, 2010 in the letter of Guarantee dated 10th February, 2012 was an error when neither the Respondent's pleadings nor the evidence on record supported such finding. GROUNDTHREE 3. The trial judge fell into grave error when he completely ignored the evidence on record to the effect that the Agreement for Provision of Money Collection Services dated 22nd February, 2010 entered into between the Appellant and Celpay Zambia Limited was the only contract which was secured by the Payment Guarantee dated 10th February, 2012. GROUNDFOUR 4. The trial judge erred in law and fact when he held to the effect that none of the Clauses in the Payment Guarantee dated 10th February, 2012 were inconsistent with one another and consequently the contra proferentem rule was inapplicable to the construction of the terms of the said Guarantee. GROUNDFIVE 5. The trial judge erred in law and fact when he made a finding of fact that the Payment Guarantee dated 10th February, 2012 was issued to secure all payment respecting airtime which Celpay J6 Zambia Limited would purchase from the Appellant on credit in the absence of evidence on record to that effect. Both parties filed in copious heads of argument in support of their respective positions. Additionally, the appellant filed a list of extracts of authorities. At the hearing of the appeal on 1st March, 2016, learned counsel for the respective parties indicated that they would rely entirely on the heads of argument filed. What emerges from those heads of argument is that the grounds of appeal are so intrinsically linked, one to the other, making repetition in the arguments inevitable. We, nonetheless, set out the arguments of counsel in extenso so as to facilitate a consummate consideration of the issues we are being called upon to determine. In regard to ground one, it was the appellant's argument that the learned trial judge erred when he held that the facility letter dated 30th January, 2012 referred to an agreement for credit sale of airtime between the appellant and Celpay Zambia Limited. According to the learned counsel for the appellant, the finding of fact by the learned judge on this issue was not borne out of the evidence on record. The facility letter dated 30th January, 2012 J7 does not make any reference to any agreement for credit sale of airtime. Furthermore, the said letter refers to the facility being the "Performance Guarantee" and not the "Payment Guarantee" and that the "Payment Guarantee" dated 10th February, 2012 which formed the basis of the appellant's claim in the court below makes no reference to the "banking facilities letter dated 30th January, 2012" which the learned trial judge seemed to have relied on in his decision. Counsel submitted that the finding of the learned trial judge as regards the "banking facilities letter dated 30th January, 2012" were perverse and not supported by evidence on record. To buttress this submission, the learned counsel called in aid the Zambian Court of Appeal case of Nkata and Four others v. Attorney Generalll) where the court indicated the circumstances when a trial judge can be reversed on questions of fact. Other cases cited by the learned counsel for the appellant in support of the same principle were those of Attorney General v. Marcus Kapumba Achiemel21, Kenmuir v. Hattingh(3), Augustine Kapembwa v. Danny Maimbolwa and Attorney General14) and Zambia Revenue Authority v. Dorothy Mwanza and OtherslSI. J8 The short point made by the learned counsel for the appellant on this ground was simply that there was no basis for the trial judge to anchor his decision on the facility letter dated 30th January, 2012 as the said letter did not make reference to any matter relating to the Payment Guarantee subject of these proceedings. According to the learned counsel, the record shows that the Payment Guarantee dated 10th February, 2012 was issued to secure performance by Celpay Zambia Limited under an Agreement for Provision of Money Collection Services dated 22nd February, 2010 and that no contract or agreement for credit sale of airtime entered into between the appellant and Celpay Zambia Limited was either referred to in evidence, or produced in court to warrant the trial judge's finding of fact on this issue. We were urged to uphold this ground of appeal. The learned counsel for the respondent made a rather brief response to the appellant's arguments on this ground. It was counsel's submission that the findings of the trial judge came after a proper analysis of the issue regarding the purpose for which the guarantee in question was issued. The learned judge referred to the J9 credit facility letter which is in the record of appeal and which shows quite plainly under clause 4.1 that the performance guarantee facilities were to allow Celpay to obtain Airtel and MTN products on credit. According to the learned counsel for the respondent, clause 9 of the facility letter stated in what way the respondent's guarantee offered to Celpay Zambia Limited was to operate. The learned judge was, therefore, according to counsel for the respondent, on firm ground when he found that the credit facility letter of 30th January, 2012 confirmed the existence of an agreement for the credit sale of airtime and other products between the appellant and Celpay Zambia Limited. According to counsel, what was lacking in the evidence of the appellant, was proof that their claim for money collection services was covered in the Payment Guarantee. There was, in the learned counsel's view, overwhelming evidence that the transaction guaranteed was for the credit sale of airtime. It was counsel's fervent prayer that this ground of appeal be dismissed. no Under ground two of the appeal, the appellant alleged misdirection and error on the part of the trial judge when he suggested that reference to the agreement dated 22nd February, 2010 in the letter of guarantee dated 12th February, 2010 was an error when neither the respondent's pleadings nor the evidence on record supported such a finding. The learned counsel for the appellant referred us to the passage in the court's judgment which reads as follows: "Thus, although no contract between the plaintiff and the 2nd defendant for credit sale of airtime and other products 'as stated in clause 1 of the Guarantee is before the court, this credit facility letter confirms that indeed such contract existed, albeit it might not have been dated the 22nd day of February, 2010.''' And to another passage at J30 that: "In the view that I take, if there is any error in the Guarantee, such error relates to the date of the contract to which the Guarantee was ancillary, otherwise the whole guarantee is inoperable." According to counsel for the appellant, both the pleadings and the evidence before the trial court show that there was no question raised that the date 22nd February, 2010 as the date of the agreement to which the Guarantee was ancillary, was given in error. To the contrary, the evidence on record shows that the only J1i agreement or contract executed between the appellant and Celpay Zambia Limited for the purpose for which the Guarantee was issued is the "Agreement for Provision of Money Collection Services" dated 22nd February 2010. The learned counsel posited that the findings by the trial judge to the effect that reference to the 22nd February, 2010 as the date of the contract between the appellant and Celpay Zambia Limited was in error, is perverse and is not supported by the evidence on record. Counsel relied on the same authorities as for ground one to support the submission that there is justification in the present case to reverse the lower court's findings of fact. The learned counsel further submitted that at no stage in the proceedings did the respondent, either by pleading or evidence, suggest any other contract or agreement. The learned counsel cited the case of Clement H. Mweepe v. Attorney General, International Police, Avis Rent-a-Car(6) to support the submission that matters such as mistake or error must be specifically pleaded by a defendant if he intends to rely on them. Counsel prayed that ground two of the appeal be upheld. J12 For his part the learned counsel for the respondent supported the learned trial judge on his finding which was assailed by the appellant under ground two of the appeal. It was counsel's contention that the issue of a possible error m the letter of Guarantee dated 10th February, 2012 was raised by the appellant itself in the lower court and the trial judge was duty bound to consider it. We were referred to our statement in the case of Wilson Masauso Zulu v. Avondale Housing Project Limited(7) that: "The trial court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality." In order to show that the issue regarding the possibility of an error was actually raised by the appellant in the court below, the learned counsel for the respondent referred us to the appellant's final submissions at page 212 of the record of appeal where it was stated as follows: "My Lords, both PWl and OWl further confirmed that there was no agreement or contract entered into between the Plaintiff and the 2nd Defendant for the sale of airtime on credit as erroneously referred to under clause 1 of the payment guarantee." J13 According to the learned counsel for the respondent, the issue of "erroneous reference" to clause 1 of the Payment Guarantee having been raised by the appellant, the trial judge had to consider it as he did at J29 of his judgment, page 37 of the record of appeal in the followingterms: "Interestingly, the witness relied on this very clause to assert that the contract was not for the sale of airtime but for money collection services. Counsel for the Plaintiff furthered the issue when he suggested in his submission that clause 1 erroneously referred to 'credit sale of airtime' instead of 'money collection services.''' According to the respondent's learned counsel, the learned trial judge merely proceeded to expantiate on an issue of error that was first raised by the appellant itself. The court then considered the evidence on this aspect as given by PWl. It was counsel's submission therefore, that the trial judge cannot be faulted for considering the appellant's evidence and submission that there was an error in the Guarantee when it made reference to the contract for credit sale of airtime. We were implored to dismiss this ground of appeal. J14 Under ground three of the appeal, the appellant complained that the learned trial judge ignored the evidence on record to the effect that the agreement for the Provision of Money Collection Services dated 22nd February, 2010 entered into between the appellant and Celpay Zambia Limited was the only contract which was secured by the Payment Guarantee dated 12th February, 2012. The learned counsel argued that the evidence on record establishes that the Payment Guarantee dated 10th February, 2012 by the respondent was issued to secure the performance of Celpay Zambia Limited under the Agreement for Provisions of Money Collection Services dated 22nd February, 2010. We were referred to pages 62-73 of the record of appeal for the said Agreement for Provision of Money Collection Services of 22nd February, 2010. Counsel submitted that no contract or agreement was produced before the trial court by the respondent for the credit sale of airtime to justify the court's coming to the conclusion that it did. The learned counsel also referred us to the evidence of the appellant's witness, Mildred Chica, to the effect that the Payment Guarantee dated 10th February, 2012 was issued by the respondent to secure the performance by Celpay Zambia Limited under the Agreement for Provision of Money Collection Services dated 22nd February, 2010 and was consistent with the documentary evidence referred to. We were also reminded that in cross-examination of the respondent's witness, Essau Mtonga, he admitted that the Agreement for Provision of Money Collection Services was the one appearing at pages 62-73 of the record of appeal. This, according to the learned counsel for the appellant, is the agreement referred to by date in the Payment Guarantee dated 10th February, 2012 issued by the respondent. The learned trial judge was also criticized that rather than rely on all this evidence, he relied on the facility letter dated 30th January, 2012 executed between the respondent and Celpay Zambia Limited as the basis for his decision. According to the learned counsel for the appellant, a perusal of the said facility letter of 30th January, 2012 reveals the followingglaring facts: (il it is not referred to at all in the Payment Guarantee dated 10th February, 2012; (ii) it refers to the execution of a Performance Guarantee in relation to the Credit Sale of airtime; J16 (iii) the appellant is not privy to the terms of the facility letter; (iv) the facility letter does not refer to any agreement for the credit sale of airtime as the learned trial judge believed. It was the learned counsel's argument that as the findings of the trial court on facts were wrong and contrary to the evidence before it, the court came to a wrong conclusion and ought to be reversed m accordance with our decision in the case of Zambia Revenue Authority v. Dorothy Mwanza and OtherslS) The learned counsel for the appellant then explained the nature of a guarantee. Citing Chitty on Contracts: Specific Contracts, Vol. 2, 27th ed. para 42-001, the learned counsel submitted that a contract of suretyship is in essence a contract by which one person (the surety) agrees to answer for some liability of another (the principal debtor) to a third person (the creditor). According to counsel, as at the date of issue of the Payment Guarantee dated 10th February, 2012 the only contract or agreement that existed between the appellant and Celpay Zambia Limited, the purpose for which the said Payment Guarantee was issued, was the Agreement for Provision of Money Collection Services dated 22nd February, J17 2010, and therefore, that this was the only contract that was referred to in the letter of Payment Guarantee dated 10th February, 2010. It was the appellant's counsel's contention that a guarantee is a contract of an accessory nature, being always ancillary and subsidiary to some other contract or liability on which it is founded and that without the support of such other contract, it must fail. For this submission, reliance was placed on the case of Mountstephen v. Lakeman(8). The learned counsel then took us through the provlslOns of the Agreement for Provision of Money Collection Services. More purposely, clause C, and clause 4.1 were quoted. We were urged to uphold ground three of the appeal. The learned counsel for the respondent predictably supported the decision of the learned trial judge under ground three when the judge found that the guarantee in question did not cover the agreement for Provision of Money Collection Services dated 22nd February, 2010. The learned counsel referred and quoted from the J18 judgment of the trial judge where he stated that the Guarantee makes consistent reference to credit sale of airtime. The learned counsel submitted that the question whether or not a guarantor is liable for a particular debt is one of substance rather than form. To buttress this submission, the learned counsel quoted Lord Diplock in the case of Meschi v. Lep Air Services Limited(9) where he stated that: "Every case must depend upon the true construction of the actual words in which the promise is expressed." In the understanding of the learned counsel for the respondent, the promise in the Payment Guarantee, which was consistent through out the document, was that the respondent would secure the debt arising from credit purchase of airtime. We were referred to clause 1 of the Payment Guarantee. After quoting from the learned authors of Chitty on Contracts: Specific Contracts, the learned counsel submitted that contracts of guarantee should be strictly construed in favour of the surety and no liability is to be imposed on the surety which is not clearly and distinctly covered in the contract. It was the learned counsel's position, therefore, that there was no error or misdirection on the part of the learned trial J19 judge in holding as he did. We were beseeched to dismiss ground three of the appeal as well. Under ground four, the appellant faulted the learned trial judge in holding that he perceived no ambiguity in the provisions of the Payment Guarantee subject of the present appeal and, therefore, that the contra proferentem rule was inapplicable. To drive home the point that clauses 1 and 9 of the Payment Guarantee were in fact ambiguous, the learned counsel for the appellant broke down the Payment Guarantee to the following salient points: (i) "It was to secure payment under a 'contract' executed between the appelIant and Celpay Zambia Limited dated 22nd February, 2010. (ii) The said clause 1 proceeded to refer to the subject matter of the 'contract' as credit sale of airtime and other merchandise." Clause 9 limited liability to products released only with the consent or authority of the respondent. According to the learned counsel for the appellant, the evidence before the court shows that no other agreement was concluded between the appellant and Celpay Zambia Limited except J20 that for the Provision of Money Collection Services dated 22nd February, 2012 and therefore, that the terms of the Payment Guarantee are ambiguous as it refers to the Agreement for Provision of Money Collection Services by date, and at the same time refers to the credit sale of airtime and other merchandise in both clause 1 and 9. The learned counsel went to great lengths to show who prepared the said Payment Guarantee. He also cited a multitude of authorities, replete with excerpts and quotations from books and judicial dicta on principles of interpretation of contractual provisions and the contra proferentem rule. He submitted that the learned trial judge would have resolved the ambiguity by resorting to the contra proferentem rule. To decline to do so in the circumstances, was a misdirection. Counsel prayed that this ground of appeal be upheld. On ground four, the gamut and premIse of the argument for the respondent in response was that the common thread runnmg through the Payment Guarantee is that it was furnished as security for the payment of merchandise and stock drawn on the guarantor's J21 instructions, and that this is clear from clauses 1, 4 and 9 of the Payment Guarantee. It was the view of the learned counsel for the respondent that any ambiguity justifying the invocation of the contra proferentem rule, must arise in the same document being construed, and not as between two separate documents. In the present case the appellant's argument is that the terms of the Payment Guarantee were inconsistent with the Agreement for Money Collection Services dated 22nd February, 2010. The contra proferentem rule was, according to the respondent's counsel, inapplicable for this reason. Additionally, the respondent was neither a party, nor did it draft the contract dated 22nd February, 2010. The appellant accepted the Guarantee obtained by Celpay Zambia Limited from the respondent when it was clear that under the Guarantee, the respondent would only be liable for credit sale of airtime and stock drawn on the respondent's instructions. We were referred to a passage in our judgment in the case of Selly Yoat Asset Management Limited v. Remotesite Solutions Zambia LimitedllOl that: "The cardinal presumption is that the parties have intended what they have in fact said so that their words must be construed as they stand. The meaning of a document or a particular part of it is sought in the document." J22 Counsel submitted that ground four is without merit and should be dismissed. Ground five of the appeal, like ground three challenged a finding of fact by the learned trial judge. The trial judge was faulted for making a finding that the Payment Guarantee was issued to secure all payments respecting airtime which Celpay Zambia Limited would purchase from the appellant on credit. It was argued that this finding was made in the absence of evidence on the record. The learned counsel essentially repeated the substance of the arguments and authorities already made in regard to other grounds challenging findings of fact. We were urged to uphold this ground of appeal too. The respondent's counsel made a brief, succinct, lucid and precise response on this ground of appeal. He submitted that the liability of a guarantor cannot be unduly extended to cover aspects which were not in contemplation of the guarantee; in this case, money collection services. What is clear is that Celpay Zambia Limited obtained this guarantee from the respondent for the J23 purpose of obtaining airtime on credit. The learned judge, according to counsel, properly guided himself on the available evidence and came to the correct conclusion. We have carefully considered the evidence on record, the judgment of the learned trial judge as well as the opposing arguments of counsel. The five grounds of appeal appear to us to, in the main, challenge findings of fact by the learned trial judge. As we have pointed out earlier on in this judgment, the issues raised in these grounds are not substantially dissimilar. In fact they are integrally linked. We intend, therefore, to consider and address the five grounds globally. The learned trial judge evaluated the evidence presented before him and made findings of fact. The appellant has requested us to overturn these findings of fact for being perverse and not supported by evidence or for being contrary to the evidence, or being premised on a misapprehension of the evidence tendered. J24 The position of the law, as all the authorities cited by the learned counsel for the appellant show, is well settled. It is that an appellate court should not ordinarily disturb or tamper with the findings of fact made by the trial court, especially if those findings and conclusions reached are supported by a proper assessment of the evidence. This principle, as we have asserted time and again, is premised on the fact that the duty of appraising the evidence given at the trial is preeminently that of the trial court which saw and heard the witnesses. The question is whether there is justification in the present case to overturn the lower court's findings of facts. Under the first ground of appeal, counsel impugned the learned trial judge's holding that the letter dated 30th January, 2012 referred to an agreement for credit sale of airtime between the appellant and Celpay Zambia Limited. This has occasioned considerable discomfort for the appellant. It is, of course, beyond argument that a guarantee is premised on the existence of another contract, or relationship between the party in whose favour the guarantee is given and a third party. In this regard, we accept the position stated in the case of J25 Mountstephan v. Lakeman(8)which was quoted by the learned counsel for the appellant that: "A guarantee is essentially a contract of an accessory nature, being always ancillary and subsidiary to some other contract or liability on which it is founded, with the support of which it must fail." The contestation in the present case relates to the contract to which the Payment Guarantee is ancillary or subsidiary; was it for credit sale of airtime or for provision of money collection services. The thrust of the appellant's argument is that the only contract executed between the appellant and Celpay Zambia Limited and dated 22nd February, 2010 is the Agreement for Provision of Money Collection Services, and that this was the contract referred to in clause 1 of the Payment Guarantee. Before the learned trial judge, a somewhat odd situation presented itself. The Payment Guarantee, on the basis of which the respondent's liability was called, was not talking to the agreement purportedly produced as being the main agreement to which the Payment Guarantee was ancillary. J26 It is rightly common cause In the present case that the appellant has founded its claim against the respondent on the basis of the provisions of the Payment Guarantee of lath February, 2012 and no other document. The Payment Guarantee is, therefore, the primary document governing the relationship between the appellant and the respondent, and by extension, the liability of the respondent to the appellant. It is imperative, therefore, that we reproduce verbatim the relevant provlslOns of the Payment Guarantee gIven the interpretational controversy they have generated. The said Payment Guarantee Number IBP/GTEE/2012/02/ 12 is dated lath February, 20 12. The relevant provision, in clause 1, 4 and 9 respectively, state as follows: "1. The Beneficiary concluded a contract with Celpay Zambia Limited of Celpay Zambia Limited, No. 1 Central Park, Cairo Road, P. O. Box 36859, Lusaka ('the Applicant') for credit sale of airtime and other products under contract dated 22nd February, ('the Contract'). As security for the payment of merchandise, a guarantee by a bank shall be furnished. 4. The above paragraphs 2 and 3 notwithstanding, the guarantee shall only extent (sic) to cover the company's obligation under the contract which shall accrue from the date of this guarantee. • J27 9. Notwithstanding any other provisions of this guarantee, the Guarantee shall only secure stock drawn on the guarantor's instruction. " We understand the liability of a surety under a guarantee to be a matter primarily of construction or interpretation of the guarantee itself and not necessarily the contract or agreement from which performance is guaranteed. The contract of guarantee itself should be strictly construed in favour of the surety. The main reason, III our view, for such an approach is that the surety is entering into liability, not for himself but for a third person, It is, therefore, the duty of the creditor to see that the obligation of the surety is couched in clear terms so that both the surety and the creditor have a common understanding of the liability assumed by the guarantor. In our considered view, a creditor such as the appellant in the present appeal, is obliged to disclose to a guarantor any unusual features of the contract between the creditor and the debtor which makes it materially different in a potentially disadvantageous respect from what the guarantor might naturally expect. J28 . A reading of the provisions of the Payment Guarantee makes it clear that it related to credit sale of talk time and nothing else. If the learned judge was inclined to take the course which the appellant was prodding him to pursue, namely, that the agreement to which the Payment Guarantee referred was the Agreement for Provision of Money Collection Services dated 22nd February, 2010, he may well have been within legal bounds to hold the Payment Guarantee to be ineffectual for not recording accurately the intentions of the parties. We have no doubt whatsoever that the Payment Guarantee refers specifically to liability arising from credit sale of airtime and not money collection services which is referred to in the agreement of 22nd February, 2010. A perusal of the Agreement for Provision of Money Collection Services has some striking suggestions that it was the agreement contemplated in the Payment Guarantee. The date clause which mentions 22nd February, 2010, conforms with what is in the Payment Guarantee and so is the parties clause and clause (4) on the necessity for a bank guarantee. Beyond that, however, J29 everything else is totally alien to the agreement envisaged in the Performance Guarantee. Under recital (cl, Celpay Zambia Limited was to provide a financial service solution to the appellant relating to collection and remittance of funds on behalf of MTN from its distributors or dealers. In our considered VIew, although the said agreement was dated 22nd February, 2010, it was not the agreement envisaged or contemplated III clause 1 of the Payment Guarantee which specifically spoke of a contract for credit sale of airtime. The learned trial judge looked vain for the correct agreement which could accord with the provIsIOns of the Performance Guarantee. Although the contract for credit sale of airtime was not itself produced at trial, the learned judge was satisfied that such an agreement existed. He stated the following at J32 page 40 of the record of appeal: "In the view I take, the witnesses were not helpful to the court in disclosing the true identity of the contract to which the Guarantee was ancillary. Thank goodness, a meticulous reading of all the documents on record reveals that there was, in fact, an agreement between the Plaintiff and the 2nd Defendant whereby the latter would purchase products from the former on credit. Among other J30 documents, the credit facility letter dated 30th day of January, 2012 which was produced on pages 11 to 16 confirms the existence of such agreement. It is interesting to note that the said facility letter specifically refers to a facility described as 'Performance Guarantee Facility for ZK5,000,000.00' in clause 3.2 thereof." We have perused the facility letter dated 30th January, 2012 referred to by the learned trial judge. It was produced before the trial judge by the respondent. It now appears at page 179 of the record of appeal. It does refer to, among other facilities, the "Performance Guarantee" to MTN Zambia for K5,000,000,000.00. The purpose of that Performance Guarantee is set out in clause 4 and includes to allow Celpay Zambia Limited "to obtain Airtel and MTN products on credit." We cannot agree, therefore, with the submission of the learned counsel for the appellant that the facility letter of 30th January, 2012 does not make reference to credit sale of airtime. We accept though, the submission that the facility letter refers to "Performance Guarantee" rather than "Payment Guarantee" as stated in the Payment Guarantee itself. Frankly the argument by the appellant premised on semantics, though filled with a touch of unwarranted optimism, is not worth much of the appellant's time. J31 We do not hold as perverse the finding by the trial judge that although the contract dated 22nd February, 2010 for the sale of airtime on credit was not produced before the court, there was nonetheless a facility letter of 30th January, 2012 referring explicitly to a facility for the purchase of airtime on credit. Elsewhere in his judgment, the learned judge remarked that: "The fact that the contract to which the Guarantee relates is not before court is nonetheless immaterial in the circumstances of this case. Since the existence of the said contract has been established, the Guarantee would be enforceable provided any claim made thereunder is tenable within the context of the Guarantee." The evidence which was before the trial court does not demonstrate that the respondent as guarantor had shared any assumption made by the appellant that the guarantee covered anything else than what was expressly provided for in it, namely, credit sale of talk time subject to the guarantor's approval. On a proper conspectus of the circumstances before us, we do not think that the findings of fact of the learned trial judge which are being assailed in this appeal are perverse. The factual finding that the letter of 30th January, 2012 referred to an Agreement for " J32 the credit sale of airtime between the appellant and Celpay Zambia Limited was based on actual evidence submitted before the court. Grounds one, three and five are bereft of merit. As regards the contention by counsel for the appellant that the learned trial judge was wrong to suggest that there was an error in the Payment Guarantee in its reference to the date, 22nd February, 2010 we are persuaded by the arguments put forth by the learned counsel for the respondent. It was the evidence led before the court and counsel's own submission that raised the possibility of an error upon which the learned trial judge ventilated his views. In our opinion, those views are at best obiter and do not form the basis of the decision of the court. We are on this basis inclined to dismiss ground two of the appeal. As regards the argument that the learned trial judge should have applied the contra proferentem rule, we agree with the learned trial judge when he held that the provisions of the Payment Guarantee were neither ambiguous nor inconsistent with each other. J33 We regard the contra proferentem rule as one of last resort where there is genuine ambiguity in the document itself and not in two different contractual documents. On a proper construction of the guarantee, there was no such ambiguity. The learned trial judge could not be (aulted in this regard. Ground four of the appeal is bound to fail. in our considered Vlew, the learned judge came to the conclusion that he did in his judgment after a meticulous review of the evidence before him and after a proper assessment of the arguments of the parties. His conclusions cannot be assailed. All the grounds of appeal raised are devoid of merit and are bound to fail. We uphold the judgment of the court and dismiss the whole appeal with costs. H. Chibomba SUPREME COURT JUDGE ~ M. . a, SC sy1?- ME COURT JUDGE ~12:-~=-. c;=~C-- .. R:-M-:-e. Kaoma '-.- SUPREME COURT JUDGE