Yingstar Investment Company Limited v Netur Plex Investment Limited (Appeal No.55/2024) [2025] ZMCA 30 (24 February 2025)

IN THE COURT OF APPEAL 0 HOLDEN AT NDOLA (Civil Jurisdiction) yP.1' OF APP Appeal No .55/ 2 024 BETWEEN YINGSTAR INVESTMENT C APPELLANT AND NETUR PLEX INVESTMENT LIMITED RESPONDENT CORAM: Siavwapa JP, Chishimba and Patel, JJA On 18th February and 24th February 2025 For the Appellant: Mr. H. B Han tum bu of Messrs Muleza Mwimbu For the Respondent: No appearance by Messrs Zambwe & Partners & Company JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court. CASES REFERRED TO: 1. Garnac Grain Company v HMF Faure Fairclough (1967) 2 ALL E R 353 2. Rudnap (Zambia) Limited v Spyron Enterprise s Li mited ( 1976) ZR 326 Chibamba Shakumbila 3 . Netta Shimwambwa Patrick v SCZ/8/248/2014 4 . Nkhata & Others v Attorney Ge neral (1966) ZR 124 5 . J Evans and Son (Portsmouth) Limited v Andre a Mezario Limite d (1976) 2 ALL ER 6. Colgate Pa lmolive (Z) Inc v Abel Shemu and 110 Others SCZ Ap peal No. 181 of 2005 J2 7. National Drug Company Limited and Zambia Privatisation Agency v Mary Kasongo SCZ Appeal No. 79 of 2002 8. Davy v Garret (1878) 7 CH 473 9. Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) ZR 138 10. Kunda v Konkola Copper Mines PLC SCZ Appeal No. 48 of 2005 11. Attorney General v Kakoma (1975) ZR 212 12. The Attorney General v Marcus Kampumba Achiume (1983) ZR 1 13. Galaunia Farms Ltd v National Milling Company Ltd and Another (2004) ZR 1 LEGISLATION REFERRED TO: 1. The Sale of Goods Act 1893 OTHER WORKS REFERRED TO: 1. Essential Contract Law 2. Halsbury's Laws of England 4 th Edition (_Reissue) 1998 Volume 9 (1) 3 . Chitty on Contract, Volume 2 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of Judge E. L Musona awarding the respondent the sum of USD 10,295 .00 and exemplary and compen satory damages arising from breach of an oral contract. 2 .0 BACKGROUND 2.1 The r espond en t, who wa s th e plaintiff in the Court below, commen ced an action against t h e appellant, to recover the sum of USD 10,295 .00, arising from an alleged ora l con tract for the supply of water labels for its business. Th e respondent, in J3 March 2022, approached the appellant through its managing director, Ying Ying Chi referred to as Ms. Jenny to supply water bottle labels for its business from China via its supplier. 2 .2 The supplier generated an invoice for the sum of USD 10, 295.00 with the specific dimensions for the water labels being 312 millilitres for the 500-millilitre bottle and 288 millilitres for the 280-millilitre bottle. Payment of USD 10,295.00 was subsequently made to the appellant's managing director for the supply of water labels which included shipping costs against the said generated invoice. 2 . 3 The appellant sent the respondent pictures and videos of the ordered water labels as proof of manufacturing. The respondent observed that the labels were smaller and contacted the respondent about the incorrect product of goods ordered. The appellant insisted that all was in order. The labels delivered were small in size with the wrong dimensions and sizes rendering the goods defective and unusable. 2.4 The respondent sought to resolve the issue of the defective labels with the appellant because it directly dealt with the J4 manufacturer. The appellant neglected and ignored the request insisting it was not at fault for the defective la bels. 2 .5 In its defence , the appellant averred that ther e was no oral contract between the appellant and the respondent. Instead, the r espondent approached the appellant's employee, for assistance in getting connected to its supplier for water labels in China. The payment of USD 10,295. 00 was paid directly to the manufacturer in China. It was not paid to the appellant. That there was no agency agreement between the appellant and the r espondent or between the appellant and the manufacturer in China. Further, the appellant did not r eceive any commission for aiding the procurement of the labels . 2 .6 Regarding the specifications of the water labels, the appellant asserted that the respondent provided the manufacturer in China with the dimensions of the water labels with the assistance of the appellant's employee. The appellant averred that it did not agree to supply the respondent with labels. That t h e manufacturer in China was responsible for the defective labels and should compensate the respondent. JS 3 .0 DECISION OF THE COURT BELOW 3 .1 The Court found that it was not in dispute that there was an oral contract between the appellant and the respondent. The only dispute between the parties was who should refund the amount claimed by the respondent. The Court also found th at the respondent did not deal directly with the supplier in China but dealt with the appellant, to whom money was paid by the respondent. 3 .2 The Court found the appellant liable because the respondent did not directly deal with the supplier in China. According to the Court, the a ppellant created in the mind of the respondent the impression that the goods would be free from defect and fit fo r use. The Court further held that the a ppellant misled the respondent and turned down the respondent's advice on the dimensions of the labels . As a result, the Court found that the appellant was indebted to th e respondent and ordered payment of the sum claimed. Further, that the defective water labels supplied to the respondent, be given to the appellant. In respect of the claim for exemplary and compensatory damages, the Court found that the appellant acted in contumelious disregard J6 of the respondent 's rights and fell in breach of th e contract, th ereby awarding the sought damages to be assessed by the Deputy Registrar in default of agreement. 4.0 GROUNDS OF APPEAL 4 .1 The appellant, being dissatisfied with th e decision of the Court below appealed advancing five grounds of appeal couched as follows: i) The Honourable Court erred both in law and in fact when it held that the oral contract of supply between the appellant and the respondent was valid contrary to the evidence that showed that the appellant's business is the production of water and not the supply of water bottle labels; ii) The Court below erred both in law and in fact when it proceeded to hold that the appellant is indebted to the respondent contrary to the evidence adduced that established the respondent's full knowledge and acceptance to take a risk on the probability of reduction in size as a result of heat during transportation; iii) The Honourable Court erred both in law and in fact when finding for the respondent on all the reliefs when the evidence on record established that the director of the appellant was acting in her personal capacity of assisting the respondent as an agent whose sole function was to establish legal relations between the principal and the agent and that once that relationship was established, she dropped out of the picture and was not a party to the contract; J7 iv) The Court erred both in law and in fact when it established that the ingredients of a verbal contract were present contrary to the evidence on record that there was no benefit or consideration paid to the appellant; and v) The Court erred in law and in fact when it failed to appreciate evidence on record that showed the appellant's director sent the money from the respondent to China and had no interest in the transaction whatsoever. 5 .0 APPELLANT'S HEADS OF ARGUMENT 5 .1 The arguments relating to the grounds of appeal are interrelated, and as such they will be considered together. The appellant contends that the evidence adduced in the Court below did not reveal that the appellant and the respondent entered into an oral agreement. On the contrary, the evidence showed a relationship between the managing director of the appellant and the respondent. Learned counsel referred us to pages 4 7 to 55 and pages 60 to 70 of the record of appeal in support of the submission. 5.2 It was argued that a company cannot enter into an oral agreement on its own but through its authorised officers. The company's intention as to what it intends to achieve must be clear and known. In casu, there were no intentions by the JS appellant to contract with the respondent. All this demonstrated that the appellant was not a party to the agreement. 5 .3 Counsel submitted that the ingredients of a valid contract were missing. According to the learned authors of Essential Contract Law , the essential elements of a valid contract a r e offer and acceptance , as well as the intention to b e bound by the agreement and consideration. In this instance, the appellant had no intention to be bound by th e agreement between the managing director and the respondent. 5 .4 The evidence showed that the managing director dealt with th e respondent in her p ersonal capacity, as a friend of the respondent's managin g director. This is further evidenced by the lack of a receipt issu ed by the appellant for the funds received and th e lack of the appellant's involvement in the transaction. It was contended that the mere fact that the managing director was an employee of the appellant d id n ot, in and of itself, establish the a ppellant's liability. 5 .5 Learned counsel argued that according to the principle of privity of contract, only parties to the agreement can sue for breach of contract arising from that agreement. The appellant was not a J9 party to the contract between its managing director and the respondent and therefore cannot be sued for breach of contract. It is t h e position of the appellant that its business is to manufacture water and that it does not procure water bottle labels fo r r esale. 5 . 6 It was con tended that the managing director was assisting th e r espondent as an agent to facilitate relations between the respondent and the manufacturer 1n China. Once th e relationship between them was established, h er role as an agent was concluded. We were referred to the learn ed authors of Chitty on Contract Volume 2 at paragraph 31-001 where the learned a uthor explains th at the relation s hip be tween the principal and agent arises where the principal consents that the agent shall act on his b ehalf and the agent consents to act. 5 .7 Learned counsel argued that the appellant did n ot consent to enter into a contract of agency with the respondent. With consent lackin g, which is vital in establishing agen cy between parties, there was no contract between them. In support of this argument, we were referred to the case of Garnac Grain Company v HMF Faure Fairclough(ll where the Court JlO emphasised that the relationship between principal and agent can only be established by consent of the principal and the agent. Additionally, counsel argued that the respondent did not adduce any evidence at trial that the appellant or its managing director was paid a commission for acting as an agent. 5.8 Counsel submitted in the alternative, that if the managing director was found to be an agent of th e respondent, the respondent would be precluded from recovering from the managing director because the lav.r on agency precludes a principal from claiming for refund or compensation from his own agent on account of a third-party's default. The case of Rudnap (Zambia) Limited v Spyron Enterprises Limitedt2 l was cited in support of the argument. 5 . 9 Learned counsel contended that the Court b elow ought to have accepted the testimony of the appellant 's witness when she stated she was merely assisting the respondent in obtaining cheaper water labels from h er source in China. Not only did she assist the respondent in obtaining th e water labels, but she also assisted the respondent in procuring an injection m achine and other spares. Jll 5 .10 In furtherance of the argument that the agreem ent did not constitute a valid contract, counsel submitted that there was no promise to pay for the goods or services received. The money r eceived by the managing director was solely for the cost of the labels and shipping costs. Counsel poses how then the appellant can b e held lia ble when the money was sent to the manufacturer as intended. The manufacturer in China ought to be h eld liable for delivering wrong-sized labels. 5 .11 The appellant submitted that h ad th e Court b elow properly evaluated the eviden ce , it would have concluded that the appellant was not lia ble. Learn ed counsel pointed us to the case of Netta Shimwambwa Shakumbila v Patrick Chibamba!3 l where the Supreme Court stated that the trial court should ensure a b alanced view of th e evidence because an unbalanced evaluation of evidence is a misdirection and can b e interfered with by the appellate court. Therefore , we were urged to interfere with the findings of the Court as held in Nkhata & Others v Attorney Genera}!4 l. 5 .12 It was also argued that the r espondent was m ade aware of the possibility of the risk of the reduction in the size of the labels J12 due to heat during transportation . Counsel referred to pages 60 and 61 of the record of appeal to d em onstrate that the respondent also had direct dealings with the manufacturer in China. Further, pages 66 and 67 of the record of appeal indicate that the respondent was involved in the procurement process of the water labels up to their delivery. 5 .13 The appellant went on to submit on agency relationship earlier referred to , which we shall not rehash , save to state that the position of the appellant is that there was no relationship of agency b etween the parties . 6 .0 RESPONDENT'S HEADS OF ARGUMENT 6. 1 The respondent argued grounds one, two and four together. Learned counsel submitted on the validity of an oral contract stating that it is r ecognised at law. Counsel referred to the evidence at trial, both PW 1 and DW 1 confirm ed that the appellant and r espondent entered a n oral agreement for the supply of the water labels. Counsel also referred us to an extract from Chitty on Contracts where th e a uthors state that the gen eral rule is that a party to a con tract must p erform wh at h e J13 undertook to do. Therefore, when parties enter into a contract , they are bound by the terms of the agreement. 6 .2 In respect of the d efinition of a contract, that it is an agreement giving rise to obligations enforced or recognised by th e law, we were referred to the fo llowing authorities , the learned author of Essential Contract Law, Halsbury's Laws of England Butterworth 4 th Edition (Reissue) 1998 Volume 9 (1), J. Evans & Sons (Portsmouth) Limited v Andrea Mezario Limited(5 l_ The respondent's contention is tha t the lower Court was on firm groun d wh en it held that the appellant was indebted to the r espondent and ordered payment of the sums claimed. 6 .3 Learned counsel submits that the respondent was under an obligation to make payment for the water labels whilst the appellant was required to supply the said water labels. The appellant could not th erefore claim to not be a party to the contract when it undertook to supp ly t he respondent with the water la bels . The appellant, however, failed to supply the respondent with the correct description of goods which render ed them unfit for use. Counsel r eferred to the cases of Colgate Palmolive (Z) Inc v Abel Shemu and 110 Others(6 l and Jl4 National Drug Company Limited and Zambia Privatisat ion Agency v Mary Kasongo(7) on the role of the courts to uphold, give efficacy and to enforce contracts that parties have freely and volun tarily entered. Therefore, the appellant ought to be held liable for failing to fulfil its contractual obligations. 6 .4 Regarding the appellant's assertions that th e managing director was acting in her personal capacity, learned counsel submitted that the managing director did not inform the respondent that she was acting in her persona l capacity. Counsel contended that th e managing d irector had the opportunity to disclose that s h e was working in h er personal capacity but did not do so. 6.5 In response to ground three, it was argued that it was not the first time the appellant and the respondent engaged in a similar transaction. In this instance, the appellant did not give the manufacturer correct measurements for the water labels but instead, gave the manufacturer its own m easurements . In support of this assertion, counsel referred us to communication between the managing director . of th e appellant and the managing director of th e respon dent at pages 49, 61 and 62 of the record of appeal. The said managing director had the full JlS authority of the appellant's affairs and operations, and thus assured the respondent that it could secure the water labels. 6 .6 Counsel referred to section 35 of the Sale of Goods Act 1893 to demonstrate instances when a buyer would be deemed to have accepted defective goods. In casu, the conduct of the respondent did not amount to acceptance of the defective water labels. 6. 7 In conclusion, it was argued that the appellant had an interest in the transaction. We were urged to dismiss the appeal with costs. 7.0 APPELLANT'S HEADS OF ARGUMENT IN REPLY 7 . 1 The appellant filed heads of argument in reply dated 5 th June 2024. The appellant disputed the respondent's assertion that the appellant approached the respondent. The said assertion was not true and was not supported by evidence . 7.2 The appellant reiterated that the essential elements of a contract were missing. In the absence of an agreement to pay for the service rendered or the intention by the appellant to create a binding and enfor ceable agreement, the purported contract was unenforceable. Counsel further submitted that I J16 whilst in J Evans and Son (Portsm outh) Limited v Andrea Mezario Limited(51 , held that parties are at liberty to contract, there must, however, be an agreement by both parties to enter into the contract. In this case, the managing director entered in an oral agreement in her personal capacity with the respondent but without the intention to bind the appellant. 7 .3 Learned counsel contended that the respondent's averment that the appellant shipped the respondent's goods is unsupported by evidence. We were referred to the evidence of communication in the Court below where the appellant's managing director was advising the respondent to arrange for the shipping of the good s . This evidenced that the managing director refused to accommodate the respondent's goods on the ship. The evidence was unchallenged and the Court below ought to have accepted it and found it credible. 7.4 It was submitted that the respondent knew that th e money was paid to the manufacturer and the a ppellant derived no benefit from the transaction. There was no misrepresentation by ~he appellant in this case. A party r elying on misrepresentation must specifically plead and the fraudulent conduct must be J17 distinctly alleged and proved as stated in Davy v Garret'8l. In Anderson Kambela Mazoka and Others v Levy Patrick Mwanwasa and Otherst9 l, the Court stated the function of pleadings was to give fair notice of the case to the other party and to define the issues the Court would have to adjudicate upon. In casu, the Court below misdirected itself by awarding exemplary and compensatory damages to the respondent on unpleaded or unparticularised items . 7 .5 With regard to the invoice, counsel contended that there was no evidence showing that the appellant issued it. It does not make sense for the respondent to receive the invoice in Chinese lan guage that it cannot appreciate the contents. Learned counsel submitted that the respondent ought to have translated the invoice to English to dispel any contention of who issued the invoice. The case of Kunda v Konkola Copper Mines PLCt10l was cited to highlight the principle that, he who alleges must prove. 8 .0 AT THE HEARING 8 .1 The appellant relied on its heads of argument in support and in reply dated 7 th March 2024 and 5 th June 2024 respectively. J18 There was no appearance by the r espondent. Its h eads of argument have been taken into account. 9 .0 ANALYSIS AND DECISION OF THE COURT 9.1 We have considered the appeal, the authorities cited, arguments and submissions presented by the learned counsel. The undisputed fact is that the appellant's managing director , Ms J enny, was given the sum of USD 10,295.00 by the respondent for the purchase of water labels from a supplier based in China. It is also not in contention that the water bottle labels r eceived by the respondent were incorrect or bore the wrong dimensions. The issues for dispute in our view are as follows: i) Whether there was an oral contract between the parties for the supply of water bottle labels, and if so whether there was a breach of contract; or whether the appellant's director entered into a contract on the appellant's behalf with the respondent. 9.2 In resolving the above issues, we shall also determine the contention of the agency relationship. In our view, the k ey issue to address is whether a contract existed between the appellant J19 and the respondent. The parties have ably defined a contract as an agreement between parties, creating mutual obligations that are enforceable by law. The basic elements required for an agreement to be legally enforceable are mutual assen t expressed by a valid offer, acceptance and consideration , capacity and legality. There are two types of contracts, oral and written. An oral contract is made with spoken words and is just as valid as a written agreement. However, oral agreements present a ch allenge 1n proving their existence as opposed to written contracts where the substantive requirements i.e. consideration etc are found on the face of the written document. 9 .3 The substantive requirements of an oral contract are not different from a written contract 1.e. offer and acceptance, intention to create lega l r elations, certainty of terms and considerations. To establish or prove an oral contract or agreement, clear evidence must be a dduced of the intention of the parties to create legal obligations by exchange of words or by conduct, and terms consistent with con temporaneous documents. J20 9 .4 In determining th e issue before us of whether there was an oral contract, we have considered the relevant documentary evidence and the conduct of the parties obj ectively. The availability of relevant documentary evidence reduces the need to rely solely on th e credibility of witnesses to ascertain the existence of an oral con tract. 9 .5 The appellant contend ed that no oral contract existed, while the respondent maintained that a valid oral contract was in place. In instances wh ere parties advance directly conflicting n arrations of events, the Supreme Court in Attorney General v Kakoma(11l h eld that: "A court is entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings on the evidence before it having seen and heard witnesses giving that evidence ." 9 .6 In its judgment, the Court below found that it was not in dispute that the parties h ad entered into an oral supply contract, despite the a ppellant's ass ertions to th e contrary. An a ppellate Court will not interfere with a trial court's findings of fact unless it is satisfied that th e findings in question were either perverse or made in th e absence of any relevant eviden ce or upon a J21 misapprehension of the facts or that they were findings which , on a proper view of the evidence no trial court acting correctly can reasonably make. This principle was affirmed in the case of The Attorney General v Marcus Kampumba Achiumel121. 9 .7 The respondent asser ted that it made a paym ent of USD 10,295.00 after the appellant issued it an invoice for the water labels. However , the index to the appellant's bundle of documents in the Court below r eferred to the invoice as "Defendant's invoice from its supplier" implying that the invoice was issued by the supplier, not the appellant. Moreover, the invoice is in Mandarin , not English, and there is no evidence to indicate that it was generated by the appellant. Furthermore , without a translation, it is impossible to determine who issued the invoice or to whom it was addr essed. In fact, th e full details of the invoice remain unknown due to the absence of an English translation. In our view, the invoice would b e a crucial piece of evidence to support th e r espondent's claim th at the appellant was involved in the transaction and h ad entered into an oral agr eement with the r espondent. J22 9 .8 Nonetheless , the evidence adduced by the respondent's managing director, Mr. Yousseff Mortada (PW 1) is that he transacted with the appellant and was given a receipt which we note was not produced on record. He stated that the appellant does not manufacture labels or supply labels and that, "He paid Jane , the money was going to China . He did not pay for the services Jane used the money but did not refund." Though Jane received the cash he paid the commission, PW 1 h ad no proof of the evidence of payment of the commission. 9 .9 Ying Ying Chi (DWl) , (Jane) the managing director for the appellant entity, testified that the money for water bottle labels was paid to her. She never issued the respondent a receipt because she paid the money on behalf of the respondent to a company in China. She was merely assisting the respondent. The respondent also dealt with the company in China. DW 1 refused r esponsibility for the subsequent loss. 9 . 10 The record at pages 61 to 69 shows translated text messages between the parties. In respect of the payment of money , the messages show that the respondent was dealing with "Jenny" and not the appellant company. We hereinafter quote and J23 reproduce some of the m essages read as follows; "Hello Jenny can I come to see you tomorrow morning to pay you balance and give you label?" Barcodes were equally sent to Jenny. "Jenny when can I pay you so we start our order." 9.11 We are of the firm view that the respondent dealt with Jenny in her personal capacity and not the appellant company. 9.12 We have also examined the essential elements of a contract to determine whether there was an agreement as alleged. Counsel for the appellant contends that the appellant's managing director agreed to assist the respondent in procuring water labels from China in a personal capacity , not on behalf of the appellant. The appellant denies the involvement in any such agreement. Counsel's position is that the fundamental elements of a contract are absent in this case: there was no offer and acceptance by the appellant, no intention to create legal relations, and no consideration paid to the appellant. Accordingly, no contract was formed between the appellant and the responden t . 9.13 In response to the appellant's argument that no agreement existed between the parties, the respondent argues that all the J24 essential elements of a contract were met. It was contended that both PW l and DWl (the appellant's managing director) admitted at trial that a contract existed between the parties. However, after thoroughly reviewing t h e record of proceedings, we find no such admission by DW 1. The evidence presented by DW 1 was that she personally dealt with the respondent and directly received payment from them. She further explained that no receipt was issued for the money received. The text messages support the above, as the respondent asked Ms. Jenny when it could come to make payment. 9 .14 Reverting to the elements of a valid contract, in this case, it is not in dispute that no consideration was given to the appellant. The question that arises is whether a commercial contract can be held valid withou t consideration. For contracts such as the one alleged by the respondent, the authors of Halsbury's Laws of England at paragraph 720 opine that: "The general rule in the case of agreements regulating business relations, it follows almost as a matter of course that the parties intend legal consequences to follow. Ordinarily, such an implication will be deduced from the existence of consideration, and this is particularly the case where a party signs an agreement .. J25 knowing it to be such, even where t he agreement is drafted by aymen. " 9 . 15 In the absence of consideration , it is difficult t o assess whether the parties intended to create legal relations or whether any legal cons equences would arise . As for the question of intent to create legal relations , the test applied is an objective one. The learned authors of Halsbury's Laws of England at paragraph 718 state as follows: "Ordinarily, the test will be the objective one of whether a reasonable person would regard the offer made to him as one which was intended to create legal relations; but what is decided may be considerably influenced by the importance of the agreement to the parties, and this is especially the case if one of them has performed his side of the contract. " 9. 16 In this case, the respondent approached the appellant's managing director, Ms. Jenny, for assistance in procuring water lab els. Ms. J enny agreed to help by sourcing them from a supplier in China, with n o payment or commission being offered for the service. The unch allen ged evidence establis h es that th e app ellant's business is focused on the production of mineral water and other bottled water products. The respondent pleaded in the Court below, that the appellant h a d agreed to supply the J26 water labels. However, it is clear that neither the appellant nor its managing director acted as the suppliers of the water labels. The actual supplier was a company in China, which received a payment of USD 10,295.00 for the supply and shipment of the labels. 9 1 7 A review of these facts leads to the conclusion that a reasonable entity, such as the respondent or its managing d irector , would not have viewed the offer to assist as intending to create legal relations with the appellant. Given the absence of consideration and the lack of inten t to establish a legal agreement, we find that no oral contract existed between t he appellant and the respondent, nor was there an agency relationship between the parties. 9 .18 In civil cases, the burden of proof rests on the alleging party, as held in Galaunia Farms Ltd v National Milling Company Ltd and Another'13l, and must be met on a balance of probabilities. In this case, the respondent bore the r esponsibility of proving that the oral contract existed between itself and the appellant. Based on the above, we hold the firm view that th ere was no oral agreement concluded between the parties. The respondent J27 failed to prove that it entered into an oral contract with the appellant for the supply of water bottle labels. 9.19 Having held that there was no oral agreement between the partie s, we hold the view that the following findings by t he Court below were made upon a misapprehension of facts: i) That there existed an oral supply contract between the appellant and respondent; ii) That the appellant dealt with the respondent; and iii) That the respondent paid money to the appellant who generated an invoice. 9 .20 We accordingly set aside the findings of the Court below stated in paragraph 9. 19. 10.0 CONCLUSION 10. l We accordingly set aside the judgment of the lower Court and substitute it with the holding that the re was no oral contract between the appellant and the respondent for the supply of water bottle labels. We also find that the appellant is not indebted to the respondent fo r the claimed sum nor entitled to exemplary and compensatory damages, ther e b eing no contract J28 between the parties. We award costs to the appellant, to be taxed in default of agreement. .................. 1 ................... . M. J. Siavwapa JUDGE PRESIDENT •....................................... F. M. Chishimba i~ f~CJ • • • • • • • • • • • • • • • • • • • • • • • • • t tee . . . •• A. N. Patel SC COURT OF APPEAL J'UDGE COURT OF APPEAL JUDGE