VS Cargo Management Services v Labadee Trust (Appeal No. 28/2023) [2024] ZMCA 78 (12 April 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL No. 28/2023 BETWEEN: VS CARGO MANAGEMEN APPELLANT AND LABADEE TRUST RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & BANDA-BOBO, JJA On 20th February, and 12th April 2024 For the Appellant: Mr. K. Wishimanga Legal Practitioners with Mr. J. A. Kayuni of Kayuni and Partners and Mrs. M. Phiri-Nkunika of Messrs Milner and Paul Legal Practitioners of A. M. W. For the Respondent: Mr. E . K. Mwitwa of Mwenye and Mwitwa Advocates JUDGMENT SIAVWAPA, JP delivered the Judgment of the Court Cases referred to: 1. Western Co-operative Haulage Limited and Western Province Co-operative Union v Zambia Seed Company limited, Appeal No 176/ 2021. 2. Mandona Freeboy v Joshua Nkandu, Appeal No 006 of 2017. 3 . Yotam Mtonga v Examinations Council of Zambia, Appeal No 2 4 of 2012. 4. Union Bank (Zambia) Ltd v. Southern Province Co-operative Marketing Union Ltd (1995-1997) ZR 207. Legislation referred to: 1. Statutory Instrument No. 21 of 1994. 1.0 INTRODUCTION 1.1 This appeal is against the Judgment of the Hon. Mr. Justice Bonaventure B. Mbewe by which he granted judgment in favour of the Respondent. This Judgment is also a composite one because we have also included a Ruling to a preliminary objection raised by the Respondent. 2.0 BACKGROUND 2.1 Sometime in June/July 2007, the Appellant made an inquiry to the Respondent about a possibility of the Respondent securing cement for delivery to the Appellant at its bonded warehouse in N dola. 2 .2 The Respondent sourced the cement in total 2,816 tons and delivered the same to the Appellant's bonded warehouse on terms as set out in the Rate Schedule (see page 433 volume 2 Record of Appeal) 2 .3 Among the terms 1n line 20 1s "payment terms" which provides as follows : value payable upon "Payment of 50% of contract commencement of loading in Durban. Payment of remaining 50% of contract value payable upon arrival of wagons in Ndola. " J2 2.4 The consignment was shipped in two batches by train from Durban to Ndola each comprising 1,408 metric tons. The Appellant paid for the commodity according to the above set out terms but only to the extent of the first 50% of the contract value. 2.5 By email dated 5 th September, 2007, the Respondent forwarded invoices to the Appellant for final settlement of the contract sum of 50% (see page 400 volume 2 Record of Appeal). The said invoices are at pages 401 and 402 vol. 2 Record of Appeal. 2.6 By email dated 25th October, 2007, the Respondent informed the Appellant that it was taking over the balance of the cement still in the Appellant's warehouse. 2.7 In response, by email dated 26th October, 2007, the Appellant stated that all the cement delivered by the Respondent was still in the warehouse as none had been sold. 2.8 Thereafter, the Respondent made efforts to sell the cement, but there were some disagreements over the pricing between the Appellant and the Respondent. J3 2.9 On 28th November, 2007, the Appellant sent a list of costs it had incurred to the Respondent whose total came to USD 25, 310.53. 2.10 On 20th December, 2007, the Respondent sent fresh invoices to the Appellant (see pages 418 to 223 volume 2 Record of Appeal) and demanded for full payment as soon as possible. 2.11 This prompted the Appellant to make fresh demands of amounts of USD 293,125.00 inclusive of storage charges for part of the period the cement was in its ware house. (See page 424 volume 2 Record of Appeal) 2.12 On 14th April, 2008, the Appellant informed the Respondent that the 50% that it had paid on the initial invoices settled the bill as the remaining half was taken over by the Respondent. 2.13 On 12th May, 2008, the Respondent made an inquiry about the balance of the cement in the warehouse which it sought to sell to an interested buyer. The Respondent further demanded payment of the balance on the full consignment of cement. 2.14 On the same date, the Respondent sent a fresh invoice to the Appellant for the outstanding amount of USD 787,416.00 exhibited at page 428 volume 2 of the Record of Appeal. J4 • 2 . 15 On 9 th June, .the Respondent sent another email to the Appellant reminding it of the outstanding balance on the cement as shown at page 437 volume 2 of the Record of Appeal. This email was met by an email from the Appellant with attached invoices relating to the costs the Appellant had incurred through handling and storage of the cement. (Page 438) 2.16 After numerous mail exchanges between the parties, without coming to an agreement, the Respondent commenced an action in the High Court. 3.0 CLAIMS BEFORE THE HIGH COURT 3.1 By Writ of Summons and a Statement of Claim both dated 29t h January, 2009, the Respondent made the following claims. (i) The sum of Three Hundred and Ninety-Two United States Dollars (USD 393, 792.00) being the amount due and owing to the Plaintiff by the Defendant in respect of the costs incurred by the Plaintiff in dispatching a consignment of bagged cement from Durban to an agreed destination in Ndola. (ii) Interest at the agreed rate of 15.5% per annum calculated from the date of delivery of the bagged JS cement to the Ndola warehouse on the 28th September, 2007, until full and final (iii) Any other relief s the Court may deem fit and (iv) Costs. 3.2 The Appellant entered Appearance, Defence and Counter Claim on 2 nd March, 2009. 3.3 On 8 th October, 2013, the Respondent filed an amended Statement of Claim, and an amended Reply and Defence to Counterclaim. 3.4 On 27th January, 2014, the Appellant filed an amended Defence and Counter Claim. 3.5 The Respondent filed an amended Reply and Defence to Counter Claim on 7 th May, 2014. 3.6 On 12th May, 2014, the Respondent filed its Reply to amended Defence and Counter Claim. 3. 7 After numerous interlocutory applications, the cause was set down for hearing on 6 th November, 2019. 4.0 DECISION OF THE HIGH COURT 4.1 After considering all the evidence, oral and written, the learned Judge delivered the judgment which is the subject of this appeal. J6 4.2 In his Judgment, the learned Judge considered the following questions; i. What type of agreement existed between the parties to the action. n. Whether or not either or both parties are liable under such agreement in terms. a) General contracted sum/ monies; b) Tax liability, specifically payment of the fines to the Zambia Revenue Authority (ZRA); c) Storage charges; d) Repair to the warehouse platform/ Ramp. 4.3 In addressing the first question, the learned Judge, considered the initial communication and documents passing between the parties, in particular, the Term Sheet and invoices. 4.4 The learned Judge found that the Term Sheet/Rate Schedule dated 17th July, 2007, provided for terms of payment in relation to the 2, 816 MT of bagged cement for delivery to the Appellant at 50% of contract value on commencement of loading and 50% of contract value on arrival of wagons in Ndola. J7 4 .5 The learned Judge resolved that the subsisting agreement between the parties was a contract for conduct of business or a simple contract. 4.6 Regarding the second question sub-divided into four parts, the learned Judge rejected the Appellant's argument that the adjusted balance and the letter by which the Respondent took over the cement implied a joint venture. 4. 7 The learned Judge referred to the provision 1n the rate schedule under "GENERAL" providing for adjustments based on currency and fuel levy fluctuations. He also accepted the explanation that the letter indicating the taking over of the cement was the exercising of the lien by the Respondent to recover the balance due. 4 .8 In dealing with the Appellant's argument that the Respondent could not unilaterally alter the rate of the cement stated in the Rate Schedule, the learned Judge stated that it was a fact that the Appellant had not paid the remaining 50% of the contractual sum and was therefore, under obligation to pay. The learned Judge also upheld the contractual rate of interest set at 15.59% per annum on the outstanding amount until final settlement. 4.9 On who is liable for Zambia Revenue Authority taxes, the learned Judge relied on the exclusion clause in the Rate J8 Schedule. The clause excluded the Respondent from liability for, among others, customs duties and/or Value Added Tax (VAT) payable outside South Africa. On that basis, the learned Judge dismissed the Appellant's claim for a refund on the Taxes to Zambia Revenue Authority. 4.10 As for storage charges, and the containers 1n which the cement was stored, the learned Judge found nothing in the Rate Schedule or in the numerous correspondences passing between the parties placing storage charge liability on the Respondent. 4. 11 On the issue relating to the repair of the warehouse and the Ramp, the learned Judge dismissed the claim by the Appellant because the responsibility of handling upon delivery of the cement and the attendant costs were excluded from the Respondent in the exclusion clause. Ultimately, the learned judge upheld the Respondent's claims and dismissed the Counter Claim. 5.0 THE APPEAL 5.1 Dissatisfied with the outcome, the Appellant filed its Notice and Memorandum of Appeal on 12th September, 2022. 5.2 The amended Memorandum of Appeal contains nineteen grounds of appeal which we will not reproduce them here J9 but we will deal with them as and when it becomes necessary in this judgrnent. 6.0 PRELIMINARY OBJECTIONS TO THE APPEAL 6.1 On 14th July, 2023, the Respondent filed a Notice of Motion to raise preliminary objections to the appeal. The Motion was made pursuant to Order vii rule 1 ( 1) and Order 13 rule 5 ( 1) of the Court of Appeal Rules. 6.2 The Appellant filed list of authorities and skeleton arguments in opposition to the Notice of Motion on 16th February, 2024. 6.3 The Respondent raised four grounds of objection to the appeal as follows; 1. Contrary to Order X rule 9, (5) (g), (h) and (i) of the Court of Appeal Rules, Statutory Instrument No 65 of 2016 (hereinafter "the CAR"), the record of appeal contains documents, which are not material or relevant to the determination of the appeal; these documents appear, for instance, at pages 94 to 112, 197 to 298, 320 to 336, 352 to 379 (in volume 1); pages 556 to 594, 605 to 711 (in volume 2); 767 to 776, 784 to 795, 807 to 828 and 941 to 1002 (in volumes 3 and 4). 2. The Appellant's 19 grounds of appeal as s et out in the amended memorandum of Appeal file into Court on 16th may, 2023, contain arguments and narrations, contrary to order X rule 9 (2) of the CAR 3. The Appellant's heads of Argument (sic) filed into Court on 16th May, 2023, do not set out the list of authorities relating to each of JlO the grounds of appeal as required by Order X rule 9 (8) of the CAR. Further, or in the alternative, the appellant did not file a separate List of Authorities to be cited in support of each other. 4. The Appellant's Heads of Argument (sic) filed into Court on 16th May, 2023, do not clearly set out the main heads of the Appellant's arguments together with the authorities to be cited in support of each head of argument, as required by Order X rule 19 (10) of the CAR. 6.4 At the hearing of the Appeal, Mr. Mwitwa, counsel for the Respondent, informed the Court that he would only argue preliminary objection 2 as he had abandoned the other grounds. He however, urged us to comment on the abandoned grounds. 6.5 The thrust of Mr. Mwitwa's oral submission in support of the objection is that he had difficulties in the manner the grounds of appeal were couched. He urged us to interrogate ground two with reference to our Ruling in Western Co operative Haulage Limited and Western Province Co operative Union v Zambia Seed Company limited 1. In that case, we dismissed the Appeal for being incompetent as the grounds of appeal were argumentative and in form of narratives contrary to Order X rule 9 (2) of the Court of Appeal Rules. 6.6 In opposing the Motion, Mr. Wishimanga and Mr. Kayuni, counsel for the Appellant, submitted that the grounds of J11 appeal were compliant with Order X rule 9 (2) as they first set out the error by the Court below and then the law without narratives and arguments. 6 . 7 Counsel also referred us to the Ruling of the Supreme Court of Zambia in the case of Mandona Free boy v Joshua Nkandu2 , in which the Court stated that it had discretion under Rule 58 (4) of the Supreme Court Rules weather or not to dismiss the appeal for non-inclusion of defendant's bundle of documents in the record. 6.8 In reply, Mr. Mwitwa discounted the submission that Rule 58 of the Supreme Court Rules, which is similar to Order X rule (2) of the CAR gives discretion whether to dismiss or not. He referred us to the case of Yotam Mtonga v Examinations Council of Zambia3 , in which the Supreme Court held that Rule 58 (2) of the Supreme Court Rules was mandatory. 7.0 OUR DECISION ON THE MOTION 7.1 We have considered the motion and the arguments for and against. The Respondent has asked us to dismiss the appeal on the basis that the grounds of appeal are set out as narratives and arguments contrary to Order X rule (2) of the Court of Appeal Rules. J12 7.2 In our view, the grounds of appeal advanced by the Appellants as set out in the Amended Memorandum of Appeal could have been framed better. However, we do not think that they are fatally flawed to offend against Order X rule 9 (2) of the Court of Appeal Rules. 7.3 Counsel for the Respondent referred us to the Supreme Court Ruling in Yotam Mtonga (supra) as it decides that Rule 58 (2) of the Supreme Court Rules is mandatory. However, our reading of Order X rule 9 (2) is clear to the effect that it is mandatory for the appellant to prepare the Memorandum of Appeal as stated. Rule 9 does not however, spell out the consequences of non-compliance with its prov1s1ons. 7.4 In this case, we seek recourse to Rule 17 (2) which provides as follows; "If the Record of Appeal is not prepared in the prescribed manner, the appeal may be dismissed." Because the Memorandum of Appeal forms a vital component of the Record of Appeal whose defect renders the Record defective, We opine that the discretion bestowed upon the Court by rule 1 7 (2) whether or not to dismiss a non-compliant Record of Appeal, applies to a defective memorandum of appeal. 7.5 In the referred to case of Western Co-operative haulage Limited and Another, (supra), we held that the ground of J13 appeal under consideration was not concise and contained legal arguments and narratives. In this appeal, we have not found as such. We therefore, dismiss the Notice of motion to raise a preliminary issue for lack of merit. 8.0 ARGUMENTS IN SUPPORT OF THE APPEAL 8.1 The Appellant filed heads of arguments on 31 st January, 2023 containing fifty-one pages. 8.2 The Appellant has argued the grounds in the following clusters; Ground one is argued alone, Grounds two and three are argued together. Grounds four, five, six, seven and eight are argued together. Grounds nine, ten and fourteen are argued together. Grounds twelve and thirteen are argued together and grounds fifteen , sixteen, seventeen and eighteen are also argued together. We will deem grounds eleven and nineteen abandoned. 8.3 The gist of the arguments in ground one is that the learned Judge erred to sustain the Respondent's locus standi on the basis that Hon. Mr. Justice Kajimanga had granted an order for substitution of party. 8.4 The Appellant argues that 1n light of the learned Judge's order expunging the Cession Agreement, the locus standi of the Respondent fell away. The Appellant pointed to page J14 1067 paragraphs 16 to 25 of the Record of Appeal for the order expunging the Cession Agreement. 8.5 On grounds two and three, the Appellant begins by citing cases in which the Supreme Court of Zambia held that appellate courts should be slow to reverse findings of fact by a trial court unless the findings are perverse, not based on relevant evidence, based on misapprehension of facts or that on a proper view of the evidence, no trial court acting correctly and reasonably can make such a finding. 8 .6 Based on the said law, the Appellant has asserted that the findings by the Court below that the Appellant had agreed to the Rate Schedule/Term Sheet was not supported by the evidence. 8 . 7 The Appellant further argues that since the Agreement between the parties was verbal, there was no evidence of the Appellant accepting the Rate Schedule as it was not signed by the parties. 8.8 In grounds four, five, six, seven and eight, the Appellant asserts that the learned Judge erred in finding that the relationship between the parties was that of a simple contract in the face of evidence that it was a joint venture. JlS 8.9 The Appellant argues that the verbal agreement between the parties was for a joint venture based on the testimonies of the Appellant's witnesses in the court below. 8.10 The Appellant has widely criticized the learned Judge alleging that he did not take a proper view of the evidence before him. 8.11 The Appellant has also relied on the email dated 25th October, 2007, from the Respondent to the Appellant stating that the Respondent had taken over the cement and instructed the Appellant not to dispatch any of it from the warehouse. This was to assert the Respondent's control over the cement. 8.12 The arguments in grounds nine, ten and fourteen are that; the learned Judge ought not to have awarded the Respondent the claimed sum of USD 393, 792.00 because the Respondent took over the cement and in fact sold some of it without accounting for the proceeds. 8.13 The Appellant re-affirms the earlier stated position that the Respondent had control over the cement and that it did not exercise a lien on the cement. J16 8 . 14 In grounds twelve and thirteen, the Appellant disputes the award of interest at 15.59% per annum for want of agreement to such a high interest rate by the Appellant. 8 .15 It is the Appellant's argument that the said interest is penal in nature and therefore , illegal and not enforceable. It r elied on the Supreme Court of Zambia's decision in the cas e of Union Bank (Zambia) Ltd v Southern Province Co-operative Marketing Union Ltd4 • 8 . 16 Grounds fifteen, sixteen, seventeen and eighteen relate to the Appellant's counterclaim by which it sought re imbursement of the Appellant's costs incurred during the handling and storage of the cement in its warehouse . This claim included costs on repairing the Rump and Value Added Tax refund. 8.1 7 The Appellant has criticized the learned Judge for finding that the claim for storage charge refund was an afterthought as it was not pleaded contrary to evidence. The Appellant is also of the view that the Respondent was liable to pay storage charges from the time it took over control of the cement and sold it to various customers. 9.0 ARGUMENTS IN OPPOSITION 9 . 1 The Respondent did not file heads of argument 1n opposition. J17 10.0 OUR ANALYSIS AND DECISION 10.1 As a starting point, in the analysis, we note that all the grounds of appeal fronted in this Appeal are on findings of fact by the learned Judge. The Appellant has acknowledged this fact in its heads of argument. As such, we will treat the grounds of appeal in accordance with the guidance given by the Supreme Court in numerous decisions. 10.2 The first ground of appeal attacks the learned Judge for upholding the Respondent's locus standi based on the Ruling rendered by Mr. Justice Kajimanga in the High Court. 10.3 The issue of the locus standi of the Respondent is anchored on the Cession Agreement which appears from page 481 to 484 and 485 to 488 volume 2 of the Record of Appeal. 10.4 By the said Cession Agreement, the joint liquidators of Boss Logistics, the company that delivered cement to the Appellant, ceded all its rights claims and interests herein, to the creditors of Boss Logistics. 10.5 On the basis of the said Cession Agreement, Boss Logistics applied for substitution of parties before Mr. Justice Kajimanga to substitute the Respondent for Boss Logistics as the Plain tiff in the Court below. J18 10.6 In the Ruling dated the 7 th March, 2013, Mr. Justice Kajimanga granted the orders to substitute parties and ordered accordingly. 10.7 In the arguments 1n support of the first ground, the Appellant asserted that the trial Judge expunged the Cession Agreement which was the basis upon which the Respondent replaced Boss Logistics as the Plaintiff. 10.8 For the above assertion, the Appellant referred us to page 1067, lines 16 to 25, volume 4 of the Record of Appeal where the learned judge stated as follows: "Upon the Counsel for the Defend ant raising an objection to and praying that parts of paragraphs 4, 26 and 31 of the Plaintiffs submitted witness statement number 1 filed into Court on 18th February 2015 be expunged for the reasons advanced and the Plaintiffs' counsel not objecting to the expunging of sentence 2 in paragraph 4 and sentence 26, I hereby grant the expunging on the documents that were before him but rather maintaining a factual position as to what he did not see those documents showing or reveal". 10.9 Clearly, what was sought to be, and was eventually expunged from the Record, were specific paragraphs in the Plaintiff/Respondent's witness statement. The above quoted extract of the proceedings does not refer to the Cession Agreement but the witness statement. 10.10 Clearly, the Appellant set out to mislead the Court into believing that the Cession Agreement was expunged from the Record by the lower Court when in fact not. This kind of advocacy is to be frowned upon, and it is condemned in the J19 strongest sense. It follows therefore, that ground one 1s dismissed for lack of merit. 10.11 The next point of the Appellant's discontentment is the finding by the Court below that the relationship that the parties created was a simple contract. The learned Judge based his finding mainly on the Rate Schedule sent to the Appellant by email. 10 .12 The schedule is dated 1 7 th July, 2007, and one of the significant parts of the Rate Schedule is the "Payment Terms" part. This part sets out how and when payment for the full consignment of cement should be made, namely; 50% of contract value upon commencement of loading m Durban and payment of the other 50% upon arrival of wagons in N dola. 10.13 The main argument advanced in rebuttal is that this Rate Schedule was not agreed to by the Appellant and neither did it sign it. 10.14 It is however, noted that there was a conversation about cement between the Appellant and the Respondent prior to the issuance of the Rate Schedule. 10.15 At page 516, volume 4, of the Record of Appeal, is an email dated 2 nd July, 2007, from Arny Tern Itave representing Boss Logistics headed: "CEMENT ENQUIRY" addressed to J20 Alessandra representing the Appellant. The email states as follows: "Hi Sandra, with reference to your conversation with Elmna on Friday please let me have the full details regarding the cement enquiry for me to prepare you a proposal". 10.16 To the above email, Sandra responded on 4 th July, 2007, as follows: "Hi Amy: 1. The cement is coming from China 2. Packaging in 50kg bags on 5 T pallets 3. Total tonnage between 15,000 to 30, 000 T 4. All port fees upon loading of wagon and delivery to Ndola to be charged for as well as storage fees as we do not have the capacity to rail the whole consignment". 10.17 The following day, on 5 th July, 2007, the Respondent issued what it called: BOSS LOGISTICS PROPOSAL FOR THE RAIL TRANSPORT OF BAGGED CEMENT FROM DURBAN TO NDOLA IN ZAMBIA BY RAIL. The document runs from page 51 7 to page 521 volume 4 of the Record of Appeal. At page 520, line 20 under "Payment Terms", it provides as follows; "Payment terms are strictly on presentation of order before loading will commence". 10 .18 At page 523, volume 4, of the Record of Appeal, is a letter (email) from Alessandra (Sandra) to Tenford titled; CEMENT FROM MBEYA. The letter is dated 11 th July, 2007. The letter is based on a prior conversation between J21 the two and Sandra is enquiring about sourcing cement 8000 MT from Mbeya for export to the Democratic Republic of Congo. 10.19 In the penultimate paragraph Sandra states as follows: "I would like to travel to Mbeya to meet with the team to first access whether they can handle any orders and would like your assistance in this regard. " 10.20 At page 524, volume 4, of the Record of Appeal, are three emails with the first one at the bottom of the page originating from Etrina (Respondent) to Sandra (Appellant) reading as follows: "Hi Sandra, with reference to the earlier discussion between yourself and Andris, please find attached our invoice number INA42358 and INA42358, respectively covering 50% of the contract value of 1 tram load of cement (1408 mts) to the value of USD 197,120.00 each. The vessel carrying the cement parcel will birth in Durban post on Sunday 19/8/2007 and trains are scheduled to be loaded immediately upon receipt pf funds. Please advise full payment details once payment has been effected". 10.21 The other two emails dated 20th and 23rd August, provide further detail on the loading and transportation arrangements for the cement from Durban to Ndola. 10.22 In all the above cited correspondence, it is clear that it is the Appellant that needed cement and the arrangement with the Respondent was for its transportation from Durban to N dola. J22 • • 10.23 It is also clear that in all the conversations that the parties, through their representatives had, there is no evidence that the Appellant opposed or rejected the proposal for the transportation of the cement by the Respondent from Durban to Ndola and the Rate Schedule attached to the transportation. 10.24 The argument by the Appellant that it did not accept the Rate Schedule and the other condition because it did not sign the documents is defeated by the fact that the Appellant complied with the condition to pay 50% of the contract sum before the consignment could be delivered to Ndola. 10.25 What is in dispute is the Appellant's failure or refusal to pay the balance of 50% once the consignment had been delivered to N dola. 10.26 The argument by the Appellant that the oral agreement between the parties was for a joint venture with each party bearing 50% of the transportation cost and sharing profits is an afterthought as there is no such suggestion on record. 10.27 Reliance by the Appellant on an oral agreement suggesting a joint venture in the face of numerous emails exchanged between the parties speaking to a transportation contract of a specified quantity of cement J23 • but without even the slightest hint of a joint venture is disingenuous. 10.28 Further, the argument that the letter by which the Respondent announced the take over of the cement 1n the warehouse does not indicate a joint venture. 10.29 All in all, there is no basis upon which to interfere with the learned Judge's finding that the relationship between the parties was a simple contract. Grounds two and three have no merit and we dismiss them accordingly. 10.30 In the next cluster of grounds of appeal, four, five, six, seven and eight, the Appellant is by and large, seeking to establish that the learned Judge did not consider or he misapprehended the evidence by the Appellant relating to the agreement being a joint venture. 10.31 In so doing, the Appellant reviews in detail the evidence adduced by the Appellant's witnesses which, in our view, was totally unnecessary. Given what we have already stated in the analysis of grounds two and three, the nature of the agreement between the parties, not being a joint venture, we will not belabour the issue. 10.32 In grounds nine, ten and fourteen, the Appellant seeks to impugn the findings by the Court below that the Respondent had proved its entitlement to the sum of J24 USD 393,792.00 being the 50% balance on the contract sum. 10.33 The main narrative in the arguments is that upon taking over the cement in the warehouse, the Respondent sold some of the cement. 10.34 In its further quest to show that the learned Judge below erroneously awarded the amount of USD393, 792.00 as outstanding balance on the cement, the Appellant has referred to page 746 volume 3 of the Record of Appeal. At that page is an invoice dated 23rd January, 2008, which states the outstanding balance as USD28,206.00. 10.35 What we note is that the said invoice is different from the two invoices namely INA42357 and INA42358 which are the basis of the litigation herein. However, it is curious to note that none of the Appellant's witnesses stated, in their witness statements and at trial, that of the total contract sum only USD28,206 was outstanding. 10.36 The correct position however, is that according to the Rate Schedule and invoices INA42357 and INA42358, each train carried cement worth USD393, 624 and so what is invoiced under TRAIN 1 and TRAIN 2 is the 50% of the full contract sum. This position is shown through invoice INA42398 at page 160, volume 1, of the Record of Appeal. The invoice is dated 5 th September, 2007, and it J25 • shows bagged cement net value USD393,624 less 50% of contract value of USD797,120. This was in respect of Train 2 . 10.37 Our understanding of invoice INA 42677 occurnng at page 7 46 volume 3 of the Record of Appeal is that the two amounts of USD 197, 120 and USD 196, 504 paid on 7 th September, 2007, represent 50% of Train 1 and Train 2 collectively paid at the time of transporting the cement to Ndola. The 50% claimed in this matter is the total balance on both Trains upon delivery of the cement to Ndola. 10.38 In our view, this is why, in the Court below, the Appellant did not argue that it had actually paid almost the full contract sum as is being argued here. The Appellant largely argued that the agreement was a joint venture to which each party had to contribute 50% of the transport cost from Durban to Ndola. In the circumstances, we find no merit in the grounds on this limb and we dismiss them accordingly. 10.39 In grounds twelve and thirteen the Appellant has taken issue with the award of interest at 15.59% per annum on the outstanding balance. It has argued that the same amounts to a penalty which is unlawful. J26 • 1 O .40 The Appellant has placed reliance on the Supreme Court of Zambia's decision in the case of Union Bank (Zambia) Ltd v. Southern Province Co-operative Marketing Union (supra). In that case Ngulube, CJ; as he then was, put the matter as follows; "Furthermore, the law has always generally frowned upon penalties including any penalty for non-payment of money. It seems to us that even where there has been specific agreement that upon failure to pay a sum of money in breach of contract a larger sum shall become payable, this would be a classic example to a penalty provision which can generally not be entertained. This is the effect of one of the ruling expounded in the leading case of Dunlop Pneumatic Tyres Co. v. New Garage and Motor Co. in relation to a sum and unconscionable, a sum in terrorem of the other party rather than the genuine pre-estimation of loss" stipulated which extravagant is 10.41 In the same judgment, the Court went further to state; "We are not surprised that the Government intervened to affirm the common law when it passed a statutory instrument No. 179 of 1995) under the Banking and Financial Services Act (21 of 1994) to formally ban penal interest. " 10.42 In this case, Clause 4.9 of the Standard Trading Conditions issued by the Respondent provide as follows; "If any amount due to the company in terms of this agreement are not paid on due date such outstanding amounts will bear interest at the rate of 15. 59% per annum from the date due until date of payment, both days included". J27 .. 10 .43 It is clear to us that because the transaction between the parties herein was not that of Creditor and Debtor, the interest rate set out in the Standard Trading Conditions is caught up by Statutory Instrument No. 21 of 1994 and the Union Bank case (supra) 10.44 We therefore, have no hesitation in finding that the said interest is illegal and unenforceable. We accordingly set it aside. We instead award interest at the London Interbank Offered Rate (LIBOR) from the date of the writ to date of final payment. 10.45 The last grounds of appeal as clustered together are; fifteen, sixteen, seventeen and eighteen which all attack the learned Judge for dismissing the Appellant's Counter Claim. 10.46 The grounds specifically relate to the Appellant's claim for storage charges, Value Added Tax and repairs to the damaged platform/ramp. 10.47 The Appellant has anchored its arguments on the ground that once the Respondent took over control of the cement in the warehouse, it became responsible for storage charges. On Value Added Tax, it has argued that the same is payable by the buyer while for the repairs to the platform/ramp, it has argued that the Respondent had J28 - earlier accepted responsibility and agreed to finance repair works. 10.48 In dealing with the question of who is responsible for storage charges, it is important to note that from the word go, this was a contract of transportation of the Appellant's cement from Durban to Ndola on terms as per the Rate Schedule. 10.49 Storage was in the Appellant's bonded warehouse. As such, it was at no cost at all but even assuming there was a cost for storage of the cement, it is the owner of the goods responsible for the cost. 10.50 The question is whether the responsibility shifted upon the Respondent declaring that it had taken over the control and sales of the cement. 10.51 It is noted that notwithstanding the declared takeover of the cement in the warehouse by the Respondent, consultations over the marketing and selling of the cement continued between the parties. Emails passing between the parties since 25th October, 2007, when the takeover declaration was made, show that both parties were involved in the marketing of the cement. The Respondent had asked that it gets USO 16 for each bag J29 sold and any amount above that would go to the Appellant. 10.52 This is an indication that although the Respondent had declared a takeover of the cement, in essence, it only wanted to recover the balance on the contract price which, as at 14th April, 2008, still stood at USD 393, 624 for 1, 408MT. 10.54 As of 28th November, 2007, negotiations were still on going on the marketing and selling of the cement at a price that would enable the Respondent collect USD 16.50 per bag. In the circumstances, we find no reason to overturn the Court below on the fact that storage charges were the responsibility of the Appellant post the declared takeover of the cement by the Responsible. 10.56 On Value Added Tax the Appellant has argued that it is the responsibility of the buyer of goods to pay the Tax. This is correct and, in this case, the Appellant was the buyer of the cement for resale and therefore, carries the Tax burden. This limb must equally fail. 10.57 As regards repairs to the platform/ramp, to the extent that the Respondent agreed to meet the cost, it shall do so. This limb must therefore succeed. J30 I • ' ' • 11.0 CONCLUSION 11.1 In our view, this was a contract that was not astutely handled by the parties thereto, and hence the numerous applications that beset it prior to the hearing of the cause by the High Court. 11.2 Ultimately, the appeal has substantially failed succeeding only in two out of the seventeen of the nineteen grounds argued. 11.3 Costs shall be for the Respondent to be taxed in default of agreement. J M. J. SIAVWAPA JUDGE PRESIDENT F. M. CHISHIMBA A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J31