Mulewa Mkoma v Bolabet Company Limited (CAZ/08/046/2020; CAZ Appeal No. 062/2020) [2022] ZMCA 222 (28 January 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ Appeal No. 062 /'2020 CAZ/08/ 046/2020 BETWEEN: MULEWA MKOMA AND BOLABET COMPANY LIMITED RESPONDENT CORAM : Chishimba, Majula and Muzenga JJA On the 18th November, 2021 and 28th January, 2022 For the Appellant : Mr. L. T. Tindi of Messrs Legal Aid Board For the Respondents: Mr. Y. Yosa of Messrs Musa Dudhia & Co. JUDGMENT Chishimba JA, delivered the Judgement of the Court. CASES REFERRED TO: I) Mirriam Mbolela v Adam Bota SCZ Judgment No. 26/20 17. 2) Phoenix General Insurance Co. of Greece SA v Administratia De Stat (1987) 2 ALL ER 152 3) Zambia Extract Oils & Colourants Limited & Another v Zambia State Insurance Pension Trust Fund Board of Trustees (2016) 2 ZR 316. 4) Mohamed S. Itowala v Variety Bureau De Change (2001) ZR 5) Krige & Another v Christian Council Of Zambia ( 1975) Z. R. 152 6) Daylesford Syndicate Limited v Dott (1905) 2 Ch. 629 - 630 7) Lewis & Queen v N. M. Ball Sons 48 Cal. (1957) 8) Yango Pastoral Company {Pty) Ltd v First Chicago Australia Ltd. ( 1978) CLR 410 -J.2- 9) The Rating Valuation Consortium And D. W. Zyambo & Associates (Suing As A Firm) v The Lusaka City Council & Zambia National Tender Board (2004) Z. R. 109 10) Nkongolo Farms Limited v Zambia National Commercial Bank Limited & Others (2007) ZR 149 11) Olley v Marlborough Court Ltd (1949) 1 All ER 126 12) The State Lotteries Board Of Zambia v Alice Tembo (1988 - 1989) Z. R. 16 13) Wilson Masauso Zulu vs Avondale Housing Project Limited (1982) ZR 172 LEGISLATION CITED: 1) The Betting Control Act Chapter 166 of the Laws of Zambia. OTHER WORKS REFERRED: 1) Chitty on Contracts: General Principles. 26th edition. 2) Chitty on Contracts: General Principles. 27th edition. Vol. 1. 3) Halsbury's Laws of England. Vol. 9, paragraph 425. 1.0 INTRODUCTION 1. 1 This appeal arises from the judgment delivered by Hon. Mr. Justice C. Zulu delivered on 24 th January, 2020. The court below dismissed the claims by the appellant on the basis that the betting transactions are illegal for want of a license on the part of the respondent to bet with the public. 1.2 The appeal raises the issue of the effect of a bookmaker continuing to trade pending renewal of a license and the effect on contracts entered into by the booker, whether there are illegal and unenforceable. Further~ whether the bookmaker's . J,3- rules prohibit the placing of bets for the same match in one .,. combination more times and consequences therein. 2 .0 FACTUAL BACKGROUND 2.1 The appellant was a regular sports bettor at Bolabet Company Limited (respondent), a boolanaker running a business of sports betting. On 11th March, 2015, the appellant placed two sets of bets for football matches that would be played on that day and on the 15th March, 2015. In the first set, he took out ten tickets in a row with the same prediction of twenty-eight matches at K7.00 per ticket. The maximum pay out on each ticket was K86 , 139.06, in the event that the predictions were correct. 2.2 In the second set, the appellant purchased ten tickets at K6.00 involving twenty-eight matches. The maximum pay out by the appellant on each ticket was Kl00, 000.00, v.rhere the predictions are correct. 2 .3 The games were played. The appellant averred that his predictions in all the matches proved to be correct. The ref ore in the first set of tickets, he was entitled to a total win of K861, 390.60 and Kl, 000, 000.00 for the second set of tickets. The total winnings being K 1, 861, 390.60. -J.4- 2.4 Upon the appellant presenting his tickets to claim the winnings, ..,. the respondent refused to honour all the tickets except for one with a payout of K86, 139.06 on the basis that the other nineteen were invalid tickets. 2.5 The respondent averred in its defence that Act No. 10 of its Betting Rules prohibits the placing of bets for the same match in the same combination replicated more than once, unless expressly varied by the respondent. For this reason, the respondent could only honour one ticket and refund the appellant the costs of the nineteen tickets which were invalid. 2.6 Arising from the above dispute, the appellant issued a writ of summons against the respondent seeking the following reliefs: 1) The payment of the sum of Kl , 860, 000.00 being the amount that the plaintiff (appellant} won as a result of the outcome of the bet; 2) Interest; 3) Costs and 4) Any other relief that may seem just and fair to the court. 3.0 EVIDENCE BEFORE THE TRIAL COURT 3.1 During trial, the appellant testified that when he presented his twenty tickets to the respondent, he was informed that payment had been blocked. Upon engaging the manager, he was -J.5- .. informed that the claim could not be paid out because the bets were placed contrary to the respondent,s betting rules. The director of the respondent~ a Mr. Co bra told him that only one ticket in the first set for KlOO, 000.00 and another for K86, 139.06 in the second set, would be paid, with the rest being disqualified. 3.2 The appellant stated that the manner in which he placed the bets in issue was no different from the way he had done previously and that there had been no complaint from the respondent. The tickets bore different bar codes and that the issue of the rules was only brought to his attention when the payment in respect thereof was blocked. He led evidence showing that he had previously placed bets in the same manner. 3 .3 DWl 1 Bratislar Salipur, a director in the respondent, testified that the respondent has rules for betting which are displayed prominently in its Downtown, Lusaka shop. After the appellant's bets came to pass, he received a call from Mr. Jerico in France, who was electronically monitoring the system, that there were some irregular tickets that had been replicated. -J.6- Salipur then instructed the manager at Downtown to call the ... appellant and inform him that only one of the twenty tickets would be honoured in view of the irregularity which was contrary to Act No. 10 of the rules . 3.4 In cross-examination, DW 1 stated that the betting rules ,.vere dependent on having a valid license to operate. The respondent's license expired on 28 th February) 2015 and a new license was issued on 28 th April, 2015. The appellant's bets were placed on 1 Ith March, 2015 after the license had expired. He explained that the application for renewal of the license was made before the license had expired and that a receipt had been issued by the Ministry of Finance in lieu of the license that allowed them to continue operating. 3.5 DW4 , Andrew John Wheeler, the operations manager for Bet Arena, a sports betting company testified that the tenor of Act No. 10 of the respondent 1s betting rules was universal to other betting companies and an international practice. 4.0 DECISION OF THE COURT BELOW 4 . 1 In determining the matter before him, the learned judge considered Act No. 10 of the respondent>s betting rules which -J .7- prohibit the placing of bets in one combination more times. The court also considered the competing arguments by the parties. 4.2 The court below found as a fact that the respondent had no license to carry on the business of a bookmaker in view of the expired license at the relevant time. Though the issue was not pleaded and only brought 1n through the appellant's submissions, the learned Judge proceeded to consider it in view of the case of Mirriam Mbolela v Adam Bota 111 which holds that illegality, once brought to the attention of the court, overrides all questions of pleadings, including any admission made therein. 4.3 The lower court reasoned that section 5 of the Betting Control Act Chapter 166 of the Laws of Zambia, requires that any person who carries on the business of a bookmaker be licensed and operate as per the terms of the license. Section 5 reads as follows: 5 ( 1) No person shall carry on the business of a bookmaker otherwise than in accordance with the provisions of a license issued to him under this Act authorising him to carry on the said business at the premises named therein • .. -J.8- or at any race meeting authorised in terms of section eighteen: Provided that nothing in this section shall apply to an employee of any licensed bookmaker acting in the course of such employment at the licensed premises of such bookmaker or at an authorised race meeting. (2) In the case of a partnership of bookmakers, each partner shall require to be licensed. (3) Any person who carries on business as a bookmaker otherwise than in terms of a license issued under this Act shall be guilty of an offence and shall be liable on a first conviction to a fine not exceeding one hundred penalty units and on any second or subsequent conviction to a.fine not exceeding five thousand penalty units. 4.4 The court below considered the case of Phoenix General Insurance Co. of Greece SA v Administratia De Stat 123, which holds that it is trite that courts will not enforce a contract that is expressly or impliedly prohibited by statute. 4.5 He also considered the case of Zambia Extract Oils & Colourants Limited & Another v Zambia State Insurance Pension Trust Fund Board of Trustees 13 ) in which the Supreme Court found that a mortgage transaction that was made and performed by a the financial service provider who had no license contrary to section 17 of the Banking and Financial Services Act, was not invalid. However, upon -J.9- considering section 20 of the Betting Control Act , he found that a betting transaction that is unlawful is unenforceable or illegal. 4.6 The said section 20 provides as follows: It ls hereby declared that any debt arising from any betting transaction lawfully made under the provisions of this Act may be enforceable before the courts of Zambia in the same manner as any other civil debt. 4. 7 The learned Judge further reasoned that though the Betting Control Act was clear that there is no requirement on the part of a bettor to have a license to bet, section 5 of the Act made it mandatory for a book maker to have a license to carry on the business of a bookmaker as operating without a license is not only a crime, but unlawful in view of section 20. 4.8 Therefore, enforcement of a betting debt or purported debt arising from a betting transaction entered into with a bookmaker who has no license is illegal and unenforceable . 4.9 The learned Judge considered in the alternative, whether the respondent was liable to pay the alleged betting debt in view of Act No. 10 and took the view that it was not. This was because the betting rules were conspicuously displayed on the wall at -J. 10- the shop at Downtown and that the appellant was well-versed in the game of sports betting. 4.10 Though each of the tickets was entered into the system ~ this did not mean that the respondent forfeited the right to test the validity of the tickets when presented for payment. The doctrine of estoppel advanced by the appellant to estop the respondent from not honouring the 19 tickets was unenforceable as each ticket represented a separate contract which was only valid if executed in compliance with the rules. 4 . 11 The respondent was entitled to invalidate the 19 tickets having been played in violation of Act No. 10 and that the bar codes did not make each ticket different. Therefore, the betting transactions in issue having been illegal for want of a license by the respondent to bet with the public, it followed that the undertaking by the respondent to honour one ticket for K86, 139.06 is unenforceable. 4 .12 The lower court then dismissed the claims in their entirety and ordered that each party bears its own costs. 5. 0 GROUNDS OF APPEAL -J.11- 5.1 The appellant, being aggrieved with the decision of the court below, has appealed and advanced the following grounds: 1. The learned trialjudge erred in/act and in law when he held that the argument by the appellant that he was unaware that the respondent had no license was immaterial when in fact the respondent conducted itself in a manner that a reasonable member of the public would believe that it was licensed; 2. The learned trialjudge erred in/act and in law when he held that lack of a valid license by the respondent vitiated the contract and could not benefit the appellant when the appella,nt had no knowledge of the illegality which should have entitled him to the amounts realizable from the won bets; 3. The learned trialjudge erred in fact and in law when he held that the appellant had constructive notice of Act No. 10 and placed bets in violation of the said Act which prohibits the duplication of the same bets more than once by the same bettor without considering the exception clause under Act No. 10 and without considering the possibility of the respondent having impliedly varied the terms of Act No. 10 based on its conduct with the appellant; 4. The ,learned trialjudge erred both in la.wand in fact when he held that the appellant had knowledge of the rules as no game can be played without rules and referred to evidence of DW2 regarding Gal's Sport Betting without taking judicial notice as to the period of its registration; 5. The learned trial Judge erred in fact and law when he held that his decision to render the betting transaction illegal and unenforceable cann,ot be said t,o a ,id the defendant or bookmakers and undue excitement to evade their obligations but proceeded -J .12 - .,. not to compel the defendant (respondent) not to pay the plaintiff {appellant); and 6. The learned trial judge erred in fact and law when he held that section 20 of the Act cannot be waivered to conveniently suit the plaintiff to accommodate illegality or personal advantages for a party or parties to cont~act when the plaintiff had n,o prior notice of the illeg,ality by the defendant. 6.0 APPELLANT'S ARGUMENTS 6.1 The appellant filed heads of argument in support of the appeal dated 21 st April, 2020 in which grounds one and two were argued together. It is submitted that at the material time, the respondent was not licensed to carry on the business of a bookmaker as its license had expired. By carrying on the business, the respondent was in contravention of section 5 of the Betting Control Act. Consequently, in terms of section 20 of the Act, the betting contract made between the parties was void and unenforceable. 6.2 The appellant further submits that he conducted business with the respondent innocently, unaware that the respondent had no license. The respondent conducted itself like a licensed bookmaker. For this reason, the appellant is entitled to the payment of money claimed. In addition that the appellant being -J.13- neither at fault and not in pari delicto with the respondent, there is nothing to prevent him from being entitled to the reliefs sought. 6.3 For the general position of the law on enforcement of illegal contracts to be successfully applied, regard must be had to vanous issues and the circumstances surrounding the formation, performance and enforcement of the said contract, including the level of participation to the wrongdoing of both parties. 6.4 It was contended that to do otherwise, would lead to giving relief to the wrongdoer by allowing him to escape from his legal obligations. As authority; we were referred to the learned authors of Chitty on Contracts: General Principles. 26th edition, at paragraph 1138 where it states that neither party can sue on a contract if: a. both knew that it necessarily involved the commission of an act which to their knowledge, is legally objectionable, that is illegal or otherwise against public policy, or b. both knew that the contract is intended to be performed in a manner which, to their knowledge ls legally objectionable in that case, or -J.14- c . the purpose of the contract is legally objectionable and that purpose is shared by both parties, or d. both participate in performing the contract in a manner which they knew to be legally objectionable. 6.5 We were further referred to the case of Mohamed S. ltowala v Variety Bureau De Change <41 where the Supreme Court held that: "A party cannot sue upon a contract if both knew that the purpose, the manner of performance and participation in the performance of the contract necessarily involved the commission of an act which to their knowledge is legally objectionable." 6.6 In ground three, the appellant contends that the exception clause under Act No. 10 of the betting rules and the possibility of the respondent having impliedly varied the terms of the said rules based on its conduct, ought to have been considered by the lower court. The appellant argued that he has never seen the betting rules said to be displayed on the counters as he rarely used the counters. He contended that he used to pick the books from the respondent and bet from his home which was near Downtown Shopping Mall . For the results of the matches, the appellant accessed them via mobile phone. -J.15- 6. 7 In any event, that a closer look at the picture at page 365 of the record of appeal shows that the rules are not visible to a bettor when a customer is standing by the counter and worse still, when the shop is overcrowded. 6.8 The appellant insisted that he had always placed his bets in the same manner 1 had won some and was paid without objection from the appellant. Reference was made to the testimony of PW2, that DWl was aware of this manner of play, and would, in his absence , delegate the cashiers to pay customers that won on such tickets. This testimony was contended as unchallenged. 6.9 In referring to Act No. 10 of the betting rules, the appellant submitted in the first instance that his understanding of the rule is that the respondent ought to communicate to its customers its exercise of discretion. Secondly, that the rule reveals that repeated tickets, whether they are winning or losing tickets, are to be refunded to the customer since they are void. In this case, the appellant was never informed of instances where the respondent waived its discretion by paying where similar bets were made. Neither was the appellant refunded for the repeated tickets. Therefore, the respondent cannot rely on Act No. 10 . 6. 10 The case of Krige & Another v Christian Council of Zambia (SI was called in aid where the court stated that: "For a party to rely on estoppel, there must be a representation acted on by him to the extent that he alters his position to his prejudice." 6.11 It was argued that the respondent, by not observing its own rules, was encouraging the appellant to place its bets in a way that went beyond mere discretion. 6.12 In ground four, the appellant contends that it was a misdirection on the part of the court below to hold that the appellant was claiming that the respondent had no rules. This is in view of the contention that the appellant used to buy the book and bet from home as the place was crowded most of the time. The appellant had a genuine expectation that if he did not get notice or constructive notice of the rules, at least one of the employees of the respondent could have men tioned them to him as he frequently placed his bets in such a manner. The court misdirected itself by stating that the appellant was familiar with betting rules as played by other betting companies as -J.17- companies have the liberty to waive the rules and make it clear v.rhether they would go by the rules or not. 6.13 In ground five, the appellant contends that having regard to the circumstances of the case and the nature of the business conducted, the respondent or any bookmaker stands to benefit pursuant to section 20 of the Betting Control A,ct if construed otherwise. This is not the intention of the legislature and that the application of the said rule will only permit the respondent and other prospective offenders to unjustly enrich themselves by carrying on business unlicensed. 6.14 The appellant further contends that the testimony of DWl and DW2 shows that the respondent merely objected to the tickets in issue in order to protect its business as the amounts in issue were colossal and would result in business folding close. This is prejudicial to customers who genuinely win huge sums of money. Therefore) refusal to enforce the contractual obligations is not only contrary to public policy but would conversely send encouraging messages to the bookmakers to transact unlicensed as long as they are not caught. This defeats the aim of the Act. -J.18- 6.15 In ground six, the a ppellant repeats its arguments raised in grounds one and two, that having transacted innocently with the respondent, he is entitled to a waiver of the provisions of section 20 of the Betting Control Act . That a waiver of the enforcement of the provision prohibiting the enforcement of the contracts between the parties will not only conveniently suit the appellant, but protect other unsuspecting customers the respondent transacted with and for future protection. 6 . 16 The appellant contends that in the spirit of protecting the public , section 5(3) of the Act , provides sufficient penalties against the erring respondent. To anchor the above argument, the case of Daylesford Syndicate Limited v Dott 16l pages 629 - 630 was cited where Brickley J stated that: "1 think that the purpose of the statute is sufficiently served by the penalties for the offender: the avoidance of the contract would cause grave inconvenience and injury to the innocent members of the public without furthering the object of statute. Moreover, the value of the relief given to the wrongdoer if he could escape what would otherwise have been his legal obligation might, as would in this case, greatly outweigh the punishment that could be imposed on him." -J.19- 6.17 The case of Lewis & Queen v N. M. Ball Sons (7 J was also called in aid where the court stated as follows: "It is true that when the legislature enacts a statute forbidding certain conduct for the purposes of protecting one class of persons from the activities of another, a member of the protected class may maintain an action notwithstanding the fact that he has shared in the illegal transaction. The protective purpose of the legislation is realised by allowing the plaintiff to maintain his action against a defendant within the class primarily to be deterred. In this situation, it is said that the plaintiff is not in pari delicto." 6.18 We were urged to hold that the appellant in the circumstances of this case is not in any way at fault, and as such, is entitled to succeed in his claims notwithstanding the prohibitions in section 20 of the Betting Control Act. 7.0 RESPONDENT'S ARGUMENTS 7.1 The respondent filed heads of argument dated 8 th July, 2020 in which the grounds of appeal were dealt with and split in two groups. Grounds one, two, five and six were argued as one while grounds three and four were argued simultaneously. 7.2 In grounds one, two, five and six, the respondent contends that two issues have been raised for determination as follows; whether illegality rendered the contract unenforceable and -J.20- whether the appellant was entitled to be paid his purported winnings despite the illegality. 7. 3 As regards the argument advanced on the purported lack of knowledge of the illegality, it was submitted that it is trite that illegality, when validly raised, vitiates the contract and cannot be raised to vary the terms of the agreement. We were referred to Chitty on Contracts 27th edition, Vol. 1, paragraph 16- 007 where the learned authors state as follows: "Illegality may affect a contract in a number of ways but it is traditional to distinguish between (1) illegality as to formation and (2) illegality as to performance. Broadly speaking, the first refers to the situation where the contract itself is illegal at the time it is formed." The learned authors further state that: "Contracts may be illegal when entered into because they cannot be performed in accordance with the terms without the commission of an illegal act. Thus the contract may involve a breach of the criminal law, statutory or otherwise, or alternatively, it may be a statutory requirement that the parties to the transaction possesses a licence and where they do not, the contract will be illegal as formed." 7.4 In this regard, it was submitted that the argument advanced by the appellant that the respondent lacked a valid licence, renders the contract between the parties, illegal as formed, and -J .21- therefore void. This entails that the appellant is not entitled to any relief sought. It follows that the illegality issue raised by the appellant is self-defeating as was noted by the court below. 7 .5 The respondent further submits that any perceived illegality actually precludes the appellant from suing upon the contract and does not alter the terms of the contract. A reading of section 5 of the Betting Control Act does show that the alleged illegality does not aid the appellant as section 20 of the said Act renders the transaction between the appellant and the respondent illegal and unenforceable. Therefore, the court below was on firm ground when it construed the provisions of sections 5 and 20 of the Act while relying on the case of Zambia Extract Oils & Colourants Limited & Another v Zambia State Insurance Pension Trust Fund Board of Trustees 13>. This is because the plain and ordinary meaning of section 20 of the Act renders a debt arising out of an unlawful betting transaction void and unenforceable. 7.6 The respondent submits that the fact that the appellant was not aware of any purported illegality is neither here nor there in an instance where the in tention of the legislature is expressly to -J.22- render the debt unenforceable. Chitty on Contracts Vol. 1 para. 16-0011 was again called in aid where the learned authors state: "Unenforceability by statute arises where a statute itself on its true construction deprives one or both of the parties of their civil remedies under the contract in addition to or instead of imposing a penalty upon them. If the statute does so, it is irrelevant whether the parties meat to break the law or not. In the c,ase of contracts rendered illegal by statute, one has to consider, not what acts the statute prohibits but what contracts it prohibits: but one is not concerned at all with the intent of the parties. If the parties enter into a prohibited contract, that contract is unenforceable and ignorance of the parties of the law does not make it less so." 7. 7 To further buttress the argument, the respondent drew out attention to Halsbury,s Laws of England. Vol. 9 , paragraph 425 where the learned authors state as follows: "There is no general nde that ignorance of the facts constituting the illegality entitles a party to enforce the contract; it seems that where the statute prohibits the very formation of the contract, neither party may enforce it even if ignorant of the illegality.» 7.8 It was submitted that while the effect of section 5 of the Act was to penalize specific conduct and not to render contracts unenforceable, the effect of section 20 was to render -J .23- unenforceable a debt arising out of bets which are unlawfully made. The question of the respondent conducting itself in a manner as if it had a license or any purported lack of knowledge of any illegality by the appellant, does not arise. We were urged to dismiss grounds one, two and six. 7. 9 As regards ground five, the respondent referred to the case of Yango Pastoral Company (Pty) Ltd v First Chicago Australia Ltd (BJ cited with approval in the Zambia Extract Oils & Colourants Limited} where it was stated that the question whether the statute was passed for the protection of the public is one test of whether it was intended to vitiate a contract ma.de in breach of its provisions. The second being that it would be contrary to reason and principle to allow one circumstance to override all other considerations in the interpretation of a statute. 7.10 It was submitted that the purpose of the Betting Control Act is to protect the public from the recovery of debts arising from unla\Vful betting transactions by making such transactions unenforceable by not compelling the respondent to pay the appellant the purported winnings. In support if this argument, -J.24- we were referred to the case of The Rating Valuation Consortium And D. W. Zyambo & Associates (Suing As A Firm) v The Lusaka City Council & Zambia National Tender Board (9 l where the Supreme Court, citing Chitty on Contracts p.620 stated as follows: "(3) The courts have .also been sensitive to the fact that non enforceable may also result tn unjust enrichment to the party to the contract who has not performed his part of the bargain but who has benefited from the performance by the other party. As was stated by Devlin J. , in the St John Shipping case, non-enforcement of the contract may result in the forfeiting of a sum which "will not go into the public purse but into the pockets of someone who is lucky enough to pick up the windfall or astute enough to have contrived to get it." 7. 11 Arising from the above, the respondent argued that it cannot be said that it will pick a windfall or be unjustly enriched by the non-enforcement of the betting transaction because the appellant was only entitled to recover the money pledged as a stake on the bets. The gist of the argument being that) it is the appellant who would be unjustly enriched on the basis of an illegal, void and unenforceable contract if the respondent is or was compelled to pay him the illegal winnings. -J.25~ 7.12 In addressing grounds three and four, the respondent submits that by attacking the holding to the effect that the appellant had both actual and constructive notice of the betting rules, the appellant is actually attacking findings of fact. The case of Nkongolo Farms Limited v Zambia National Commercial Bank Limited & Others 1io1 was called in aid for the general rule that an appellate court rarely interferes with the finding of facts by the lower court, unless such findings are not supported by evidence on record or the lower court erred in assessing and evaluating the evidence by taking into account matters which ought not to have been taken into account or failed to take into account some matters which ought to have been taken into account or mistakenly, the lower court failed to take advantage of having seen and heard the witnesses and this is obvious from the record or the established evidence demonstrates that the lower court erred in assessing the evidence. 7.13 As there was no correspondence or written communication between the parties prior to entering into the betting contract as the appellant bought a ticket from the bookmaker, it is submitted that what was created between the parties falls -J.26- within the realm of standard form contracts. According to Chitty on Contracts, 27th edition, Vol. 1 at paragraph 12- 009, such a contract is contained in a ticket, receipt or some standard form document whose conditions must be brought to the notice of the party to be bound before or at the time the contract is made: if communicated after the contract is concluded, they will be of n o effect. 7.14 At paragraph 12-011 , Chitty on Contract s supra, explains that it is not necessary that the conditions contained in the standard form document should have been read by the person receiving it) or that he should have been made subjectively aware of their import or effect. The respondent cited the case of Olley v Marlborough Court Ltd 1111, to show that the rules may be incorporated in a prominent public notice which is plainly visible when the contract is made. 7.15 It was submitted that the respondent had satisfied the test that the appellant had been aware of the betting rules as the same had been sufficiently displayed in the betting shop as shown in volume 2 pages 331 to 365 of the record of appeal. This was a finding of fact by the court below. It was further shown in -J.27- evidence that the banner giving notice of the placement of the rules was displayed at a height where even when the shop has many people present, it is still visible as per page 362 of the record of appeal. 7 . 16 With regard to printed notices, it was submitted that the appellant led evidence that he was a frequent patron of the betting shop at Downtown Shopping Mall where the rnles were prominently displayed. PW2, DWl and DW2 also testified that the betting rules were displayed in the shop. The appellant also testified in cross-examination that he had seen the various notice boards on which the betting book, notices of special offers and results are displayed. He also displayed a proficient understanding of the rules of sport betting in cross examination. Therefore, the appellant ought to be deemed to have had actual notice of the betting rules. 7 .17 The respondent submits that the argument that the lower court erred when it referred to the evidence of DW2 regarding Gal Sports Betting without talcing judicial notice as to period of its registration is devoid of merit. This is because the finding of the court below was premised on the appellant's own evidence in -J.28- which he displayed a proficient knowledge of betting rules. Therefore the reference to DW2 ,s evidence was a corollary matter that reinforced the finding that the appellant had actual notice of the betting rules. 7.18 In any eventt the respondent submits that there was no evidence before the court below regarding the registration of Gal Sports Betting, and that the date of registration is not a matter the court can take judicial notice of. Further, the appellant did not appear surprised when he was informed that he would not be paid because his bets were in breach of the betting rules. 7.19 As regards the waiver of the betting rules, the respondent placed reliance on the case of The State Lotteries Board Of Zambia v Alice Tembo u 21 where the Supreme Court stated that: "By the terms of the rules that governed the lottery the respondent was bound and it was not open to the Court to waive its application." Therefore, the appellant is bound by the betting rules and it is not open to this court to waive their application. The betting rules form part of the contract with the appellant and he cannot escape their application. -J.29- 7 .20 In response to the contention that the acceptance of similar bets previously made, mnounted to a waiver of the rules and entitles the appellant to the payment of the Kl, 860, 000.00 it is submitted that same is without merit and ought to fail. This is because the appellant acknowledged that Act No. 10 applied to the transaction between him and the respondent which gave the respondent the discretion to waive its application. 7.21 It is submitted that each time the appellant placed a bet at the respondent bookmaker, a new contract was entered into. It follows that the appellant cannot rely upon any waivers that may have been previously granted, assuming such waivers were granted, to assert that the rules do not apply to transactions between him and the respondent. The appellant is seeking to force the respondent to exercise its discretion in his favour, this amounts to talcing away the bookmaker's contractual discretion and varying the terms of the contract. 7.22 With respect to estoppel, the respondent submits that there can be no estoppel in this matter because none of the bets produced in evidence by the appellant previously accepted by the respondent were shown to be winning bets. Estoppel would only -J.30· arise if it was demonstrated by the appellant that he had in fact t won and had been paid on bets made in breach of the rules. 7 .23 In a nutshell, that the respondent would only be estopped from enforcing the rules if it had actually paid the appellant previously on duplicated bets. The appellant having failed to prove the above point, no estoppel arises in this case. 7. 24 We were urged to find the appeal devoid of merit and to dismiss it with costs to the respondents. 8.0 . DECISION OF THE COURT 8.1 We have considered the appeal, the evidence adduced in the court below as well as the authorities cited and arguments advanced by the learned Counsel for both parties. 8.2 The facts not in dispute are that the appellant a seasoned bettor had purchased twenty tickets from the respondent {bookmaker) which he placed as bets on sporting events occurring on the 11th and 15 th of March 2015 . His predicated outcome in respect of the matches was successful. Upon presentation of his 'alleged' winning tickets for encashment, the respondent declined to pay the respondent on the basis that the bets were placed contrary to the rules under the Betting Control Act. That the respondent -J.31- .. t could only honor one ticket wining pay out in the sum of K86, 139.06. 8. 3 During trial evidence was led in to the effect that the respondent's license had expired at the time of the transactions. Arising from above ,the appellant in his submissions argued that at the time the bets were placed, the respondent had no license to carry on the business of a book maker, therefore the rules relied upon were of no effect. 8.4 The court below held that enforcement of a betting debt arising from a transaction where the book maker had no license is illegal and unenforceable and declared the transaction illegal. 8. 5 Grounds one, two and six deal with the issues arising from the above holding of the court. In our view the questions raised for determination in the appeal are as follows; l. The effect of contracts entered into by a bookmaker pending renewal of license, whether the same are vitiated and are illegal and unenforceable; if the ans,wer is in the negative, ,other issues arise for determining in respect of the claims sought such as; (i) Whether the appellant had constnictive notice of the rule prohibiting the duplication of the same bets more than once by a bettor -J.32- (ii} Whether the said rule prohibiting the duplication of the same bets was impliedly varied (i ii} Whether the decision by the court below rendering the betting transaction illegal and unenforceable aided the bookmaker to evade its obltgatlons. 8.6 Sports betting is the activity of predicting sports results and placing a wager on the outcome legally through a bookmaker or sports book. The majority of bets are placed on adverse sports ranging from football, racing, and boxing etc. It is trite that when a bet is placed with a licensed bookmaker, a legally enforceable contract is entered into. The terms and conditions of the bet m ust be made available by the bookmaker. A bettor must make himself familiar with the terms and conditions which are specific to the bookmaker. 8.7 The profession of accepting sport wagers 1s regulated. The relevant legislation in our jurisdiction is the Betting Control Act Chapter 166 of the laws of Zambia. Section S(i) prohibits against unlicensed booking making or carrying on business as a bookmaker and prescribes the penalties. Under section 12, the Act further provides for renewal of book making licenses. . J.33- 8.8 As earlier stated, it is not in issue that the license held by the respondent had expired at the time the appellant transacted with the respondent. Prior to expiry of the said license, a renewal application had been submitted to the relevant betting licensing board by the respondent and the decision of licensing authority was being awaited. The evidence by the respondent on record is that the licensing board had authorized it to continue trading pending renewal of its license. 8.9 The issue for determination is what is the effect of continuing to trade pending renewal of license and the effect of contracts entered into by the entity. Are the said contracts entered into unenforceable and illegal? 8.10 It is trite that Governments' control over various activities through issuance of licenses is in order to ensure that a particular activity is pursued in a manner which is consistent with the protection of public safety or desirable in public interest. 8.11 In casu, there was a license issued to the respondent. Prior to expiry, an application for renewal was made to the relevant betting licensing board. Whilst renewal was pending, betting -J.34~ continued to be carried on by the bookmaker. Could the respondent continue to conduct its business by accepting bets placed by the players pending renewal? 8.12 We are of the view that where an application for a renewal of license has been made and the licensing committee/board has not by the date of expiration of the license reached a decision, such a license shall continue in force until the decision of the committee is made known. 8 .1 3 In casu, the application for renewal of the betting license was made when the license was still valid and had not yet expired. 8. 14 Only in cases where the license renewal application having been made before the expiration date of the subject license and there is a delay in the decision, then the previous license remains in force pending the decision of the issuance authority. According to Halsbury;s Laws of England (supra) paragraph 65, "where an application for renewal is duly made, the extsting permit or license continues in force until determination of the application.,, Even in instances where for arguments sake a renewal is refused, the pennit or license continues until the expiration of time for notice of appeal or abandonment of the appeal. ~J.35- 8.15 This must be contrasted with failure to renew a license before its expiration date where the permit lapses or results in automatic cancellation of the license. Such entity/person \vhose license has expired can only obtain a new one by applying for a new license pursuant to the requirements of the law. In the circumstances of this case, namely that renewal was made prior to expiry of the license, coupled with the authorization made by the licensing board to the respondent to continue to trade pending renewal, the contracts entered into between the bookmaker and players during the said period are legal and enforceable. In any event, the license continued being in force until determination of the application for renewal. 8 . 16 On the above basis, we hold that the court below erred in law and fact when he held that lack of a valid license vitiated the contract. We will not belabor to consider the arguments advanced as to whether or not the appellant was aware that the respondent's license as a bookmaker had expired or had knowledge of the alleged illegality. This is because of our holding that the license continued being in force pending determination of the renewal application and that the contracts -J.36- were legally entered into. Therefore> it goes with stating the obvious that issues of knowledge of illegality are otiose. In any event, there is no requirement on the part of the bookmaker to exhibit the notice of application for renewal on the premises. We refer to Halsbury's Laws of England, 4 th Edition, Volume 4 ( 1) paragraph 63. 8.17 We now move on to determine the issue of whether the appellant had constructive notice of the rule prohibiting the duplication of the same bets more than once by a bettor. 8.18 It is trite that a licensed betting office must be managed in accordance with the rules laid down by statute in casu, the relevant law being the Betting Control Act (supra). In regard to the requirement of written material, a licensee must not only display his betting license but must also exhibit on those premises notices in positions as may be prescribed, in conspicuous places inside the premises setting out the terms on which he invites persons to bet on the premises. See Halsbury's laws of England paragraph 73 and 76. 8.19 In line with the above , the respondent has betting Rules applicable to its course of betting on sports events that bettors -J.37- accepts and adheres to. We refer to the Rules at page 341 of the record of appeal volume 2. 8.20 The pertinent rule being Act 10 which stipulates as follows; "There is no possibility to place bets for the same match in one combination more times, except if the bookmaker, in certain case does not indicate different. If there is in the combination the same event indicated more time, combination the same event indicated more time, combination is considered as void, and the customer will be refunded. There is no possibility ...... . etc see me ......... " 8.21 The court below made a finding of fact that the betting rules were conspicuously displayed on the wall at the premises of the respondent and that the appellant was well versed in the game of sports betting. 8.22 The appellant contended that he had never seen the betting rules displayed on the counters because he rarely used the counters, as he merely picked up the books and played from home. In the second instance, he contended that the rules in the bundle of documents appearing in the record of appeal are not visible and cannot be seen when a customer is by the counter or worse still when the shop is overcrowded. -J.38- 8.23 In our view, the evidence by the respondent that the rules are ~ prominently displayed on the counter as required by the law was not controverted. PW2, DWI and DW2 testified that the betting rules were displayed in the shop. The record shows at pages 331 to 365 the rules displaced prominently. Contentions that the appellant played from home are not relevant. The fact remains that the rules were conspicuously displayed clearly visible to the bettors. Act 25 of the Bookmaker's Rules stipulates that "these rules will be placed clearly on visible places at all deposit places of the Bookmaker. It is considered that every customer is familiar with those rules and accepts it without any reserve." In fact a perusal of the documents adduced in evidence, reveal a display of the said rules which are clearly placed in visible places and are conspicuously displayed. 8.24 We therefore cannot overturn the finding of fact made by the court below to that effect. Findings of fact can only be overturned where they are made in the absence of any relevant evidence, or upon a misapprehension of facts. See the cases of Wilson Masauso Zulu vs Avondale Housing Project Limited! 131 -J.39- ~. 8.25 Equally we are of the view that the findings of fact that the ~ appellant was well versed in the game of sports betting was properly made by the court below. This was based on the evidence by the appellant during trial, where he as the court below stated "demonstrated his fine powers as to how the game of sport.s betting was played and was also deemed to have constructive notice." This is fortified by the evidence of the appellant (PW 1) appearing in the record at pages 533 to 538, revealing that he had been patronizing the bookmaker. Bola bet betting on football games since July 2013 and described in detail how the game is played. The court below further had the benefit of observing his demeanor as he candidly demonstrated prowess of the game. We decline to reverse the finding of the court based on the evidence on record. 8.26 Having affirmed the holding of the court below that the appellant had notice of the betting rules of the respondent we hold and come to the inescapable conclusion that the said rules clearly prohibited the duplication of the same bets more than once by a bettor. -J.40- 8.27 The appellant in respect of the rules further argued that the rule prohibiting duplication of the same bets more than once was impliedly varied, or waived because previously, they had accepted bets placed in such manner. 8.28 We do not accept the argument. The appellant was aware of the rules prohibiting duplication of bets more than once. Act 10 of Bola bet rules, stipulated that there was no possibility to place the bets for the same match in one combination more times. No evidence was adduced to show that the respondent indicated that it had accepted to honor the placing of bets for the same match in one combination more times. Mere acceptance of the bets placed in such manner does not equate to a waiver or variation or an obligation to honor bets, placed in contravention of Act 10. 8.29 The effect of Act 10 as stipulated in the rules is that the bets placed for the same match in one combination of the same event indicated more times, the combination is considered void and the customer would be refunded. 8.30 It is not in dispute that the appellant placed bets for the games in respect of the twenty tickets in the same combination i.e -J.41 · duplicated the same bets more than once. We therefore, hold that the nineteen tickets were void as they were placed contrary to Act 10. 8. 31 Therefore the court below erred to the extent of holding that respondent was not liable to pay the appellant even for the one ticket for K86, 139.06, on the basis of want of a license to bet. Having earlier held that the license was in effect until determination of the renewal application, we hold that the appellant is entitled to the winning in respect of one ticket bet in accordance \.vith the rules. In respect of the nineteen ticket placed contrary to Act 10 of Bola bet rules, the respondent is not entitled to claim the winnings arising from duplicated bets. The appellant is merely entitled to a refund of the cost of nineteen tickets. 8. 32 The above holding does not aid the bookmakers or allow them to evade obligations as argued by the appellant. 8.33 We accordingly overturn the decision of the court below dismissing all claims and substitute it by the holding that the appellant is entitled to the sum of K86, 139 .06 in respect of one ticket bet in accordance with Act 10 of the respondent's rules ·J.42- and refund of the costs of nineteen repeated tickets placed as bets for the same match in the duplicated combination. The appeal partially succeeds. 8.34 We award costs to the appellant. F. M. Chishimba COURT OF APPEAL JUDGE ......... ~ ......... . B. M. Majula K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE