Concepts Travel and Tours Limited v Minor Hotels Zambia Limited (Appeal No. 186 of 2024) [2025] ZMCA 120 (28 August 2025)

IN THE COURT OF APP·EAL OF ZAMBIA Appeal No. 186 of 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN : 2 8 AUG 2025 CONCEPTS TRAVEL AND TOURS LIMITED APPELLANT AND MINOR HOTELS ZAMBIA LIMITED RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA 17th June & 28th August 2025 For the Appellant : No Appearance Messrs. Anthony Assoc iates For the Respondent: Mr. K. Phiri Messrs. Corpus Legal Practitioners JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Cases referred to: 1. Colgate Palmolive (Z) Ltd v Able Shemu and Others -SCZ Judgment No 11 of 2005 2. Zambia State Insurance Corporation Limited v Zambia Bottlers Limited Pension Scheme, Copperbelt Bottling Company Pension Scheme, Zambia Metal Fabricators PLC Pension Scheme, Zambia Oxygen Li mited (now BOC) Pension Scheme, Kafironda Explosives limited (now African Explosives) Pension Scheme- SCZ Appeal No. 181 of 2009 3. Bidvest Food Zambia Limited & 4 others v CAA Import and Export- SCZ Appeal No. 56of2017 4. Davis Evans Kasonde v Zambia Revenue Authority- SCZ Appeal No. 84 of 2015 5. Barbara Bwalya Chibulu v Joseph Zulu and The Electora l Commission of Zamb ia- SCZ Judgment No. 49 of 2008 6. The Attorney General v Marcus Kampumba Achiume (1983) ZRl 7. Khalid Mohammed v The Attorney Genera l (1982) Z. R. 49 8. Bidvest Food Zambia Ltd and Others v CAA Import and Export Ltd (SCZ 8 of 2018) [2020] ZMSC 166 (6 August 2020). 9. Wataari & 11 others v registered Trustees of Telposta Pen sion Scheme (Civi l Appea l 390 of 2019) [2023] KE. CA 1171 (KLR) (6 October 2023) (Judgment) 10. Zambia Electronic Clearing House Limited v James Kalengo -CAZ Appeal 239 of 11. Maikisa Matthew llukena v Patents and Company Registration Agency [2024] ZMCA 319 J2 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Justice B. C. Mbewe, delivered on 18th April 2024, in respect of an action for breach of contract commenced by the Appellant against the Respondent in the Commercial Division of the High Court. 1.2 It is a well settled position of the law that in matters of contractua l relations, and disputes emanating therefrom, the Court will give effect to contracts freely entered into by Parties w ith contractual capacity. The celebrated case of Colgate Palmolive (Z) Ltd v Able Shemu and Others 1 is instructive. 1.3 In the appeal before us, there was no written contract placed before the trial Court, which was invited to consider whether there was breach of contract in the manner it was terminated and consequent reliefs flow ing from the termination. 2.0 BACKGROUND 2.1 For the purposes of the appeal, the Parties shall be referred to as they appear in this Court. 2.2 The Appellant (Plaintiff in the Court below) commenced an action on 22 nd September 2020 against the Respondent (Defendant below), by way of W rit of Summons and Statement of Claim seeking the fol lowing reliefs: i. Damages in the sum of K 480, 000.00 for breach of contract; ii. Damages for repudiation of contract iii. Interest on all sums found due iv. Costs of this action J3 2.3 The dispute in this Appeal is anchored on the Respondent 's alleged breach of contract, specifically its failure to give the Appellant reasonable notice of termination of transport services. The Appellant contends that this omission did not afford it sufficient time to wind up its affairs at the Respondent's premises. 2.4 In its Statement of Cla im, the Appellant averred that the parties entered into a contract making the Appe llant the exclusive provider of transportation services for the conveyance of the Respondent's guests at commercial rates charged to the guests. 2.5 According to the Appellant, the contract was on a year to year basis and could not be terminated except for cause . It was averred that it was an implied term of the agreement that sufficient and reasonable prior notice would be given . According to the statement of claim, the Appellant performed its obligations under the agreement and paid the Respondent 10% commission as contracted . 2.6 According to the Appellant, the Respondent 's Managing Director, purported to terminate the agreement with immediate effect, w ithout cause or notice by WhatsApp message on 5th January 2020 and that the Appellant has suffered loss and damage. 2. 7 The Appellant obtained Judgment in Default of Appearance and Defence on 26th November 2020, which was subsequently set aside by the Court's Ruling of 20th January 2021. 2.8 On 2nd February 2021, the Respondent filed its Defence and denied that the contract was exclusive to the Appellant. It was averred that the agreement J4 was yearly up till December 2019 and was subject to renewal upon written notice of intention to renew. The Respondent denied terminating the contract but exercised its right to not renew the contract and averred that the agreement was terminated by effluxion of time. 2.9 The Record of Appeal is presented in one volume and reference to page numbers shall refer to the Record of Appeal unless otherwise stated. 3.0 DECISION OF THE LOWER COURT 3.1 The trial Court considered the following questions for determination: i. Whether there was an existing contract between the parties; ii. Whether the Respondent breached the contract in the manner notice was given to the Appellant and; iii. Whether the alleged breach entitled the Appellant to damages as claimed. 3.2 In addressing the first question raised, the learned trial Judge acknowledged that there was no written and signed contract between the Parties. He found that the existence of the contract was arrived at from communications exchanged and payments made between them. Upon reviewing further correspondence between the Parties, which included exhibited documents of draft contracts unsigned by the parties, the learned trial Judge noted that while these documents served as a guide to the Parties' intended terms, they did not establish the binding terms governing their relationship. He nonetheless agreed with the . Appellant that the contractual arrangements between the Parties operated on a year-to-year basis. JS 3.3 The learned trial Judge found that the correspondence from December 2019 to March 2020 showed that although Parties were in the process of renewing the contract for the year 2020, the process was not successful, which led to the Respondent terminating the contract on 5th January 2020. 3.4 In addressing the second and third questions identified above, the learned trial Judge found that the Parties were in discussion for a new contract for 2020. He noted that the Respondent made up its mind not to award the Appellant the contract and communicated its termination of the relationship by letter of 5th January 2020. Looking at the state of affairs, the learned trial Judge found that there was a general consensus between the Parties that the contract was at an end and a new contract would be entered into after the Respondent concluded its internal processes. He found that the communication from the Respondent of 5th January 2020, forma lly communicating the termination was reasonable in the circumstances. He found that the short notice was adequate notice . 3.5 Consequently, the learned trial Judge found that the Appellant had not discharged its burden of proof to prove that the Respondent breached the contract between the Parties on a balance of probabilities and dism issed all the Appellant's claims. 4.0 THE APPEAL 4.1 Dissatisfied with the outcome in the lower Court, the Appellant filed its Notice and Memorandum of Appeal, on 17th May 2024, fronting four (4) grounds of appeal, namely : J6 ,. The learned puisne Judge erred in fact and at law in holding that the Respondent was not in breach of its contract with the Appellant. ii. The learned puisne Judge erred in fact and in law in holding that the Appellant's contract with the Respondent was not automatically renewed and that the Appellant simply held over providing the services pending the conclusion of a new contract; iii. The learned puisne Judge erred in law and in fact when he failed to consider that the notice given by the Respondent implied the existence of a subsisting contract with the Appellant; iv. The learned puisne Judge misdirected himself in fact and at law when he held that the Respondent's short notification for termination of the contract was adequate notice. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 We have duly considered and appreciated the Appel lant's Heads of Argument filed on 16th July 2024. It is noted th at the Appellant has abandoned ground 3 of the appeal. Grounds 2, 1 and 4 shall be addressed respectively in the sa me manner presented by the Appe llant. 5.2 The gist of ground 2 of the Appellant's argument is that there was previous course of dealings between the Parties that implied a renewa l of the contract. The Appellant referred to the case of Zambia State Insurance Corporation Limited v Zambia Bottlers Limited Pension Scheme, Copperbelt Bottling Company Pension Scheme, Zambia Metal Fabricators PLC Pension Scheme, Zambia Oxygen Limited (now BOC} Pension Scheme, Kafironda Explosives Li mited (now African Explosives} Pension Scheme2 at page J29: J7 "Course of dealing means that past business between the parties raises implication as to the terms implied in a fresh contract where no express provision is made on the point at issue." 5.3 It was argued that the Respondent did not communicate any intention not to renew the contract for 2020, until 5th January 2020 and that there was a subsisting contract between the Parties on 5th January 2020 when the Respondent terminated the same. 5.4 In respect of grounds 1 and 4, the Appellant submitted that the learned trial Judge erred in law and fact when he held that the Respondent was not in breach of its contract with the Appellant and that the Respondent's short notification for termination of the contract was adequate notice. 5.5 On the issue of notice, the Appellant argued that there was no express provision relating to the notice period for termination . The Appellant placed reliance on the case of Bidvest Food Zambia Limited and 4 others v CAA Import and Export3 and quoted as follows: l} Where no termination clause exists, a contract is determinable by reasonable notice; and 2) What constitutes reasonable notice is determined bearing in mind various factors such as the length of the parties' relationship, inter alia; and 3) In the absence of a reasonable notice period, the terminated party is allowed to claim an equitable indemnity whose purpose is to compensate the terminated party for the losses suffered because it did not receive a notice period." J8 5.6 The Appellant submitted that sufficient or reasonable notice of termination is a necessary term, which ought to be implied in the contract. It was further argued that no time was given to the Appellant to demobilize from the Respondent's premises. 5.7 On the issue of breach, it was submitted that the Appellant went to great lengths to prepare for the contract which had been automatically renewed before the same was terminated abruptly. 5.8 It is on this basis that the Appellant argues that it is entitled to an award of an "equitable indemnity" to compensate for the loss suffered by the Appellant. 6.0 THE RESPONDENT'S HEADS OF ARGUMENT 6.1 We have duly considered and appreciated the Respondent's Heads of Argument filed on 13th August 2024. 6.2 In response to ground 2, it is the Respondent's submission that the Appellant has not provided evidence for the Court to overturn any of the findings of fact. It is the argument that the fact that both Parties consented to an exclusive unwritten transportation agreement that was re newed yearly, did not necessarily imply an automatic renewal of each contract. 6.3 It is the argument that previous contracts from 2017 to 2019, were all independent of each other. The Respondent relied on the case of Davis Evans Kasonde v Zambia Revenue Authority 4 in which the Supreme Court rejected the argument that past renewals created an expectation for future renewals. J9 It is the strong argument that the Appellant's expectation of automatic renewals does not constitute a binding obligation on the Respondent. 6.4 It is the Respondent's submission that the Appellant was not assured of a new contract by the Respondent and neither was any promise made that the 2019 contract would be renewed in 2020. 6.5 In response to grounds 1 and 2, the Respondent submitted that it communicated with the Appellant, its decision not to renew the contract shortly after the previous contract term ended on 5th January 2020. 6.6 It is also argued that the timing, although slightly after the expiration date, did not constitute a breach as the contract had already expired by effluxion of time on 31st December 2019. It is the submission that the term "adequate notice" should be interpreted within the context of the contract's natural expiration. 7.0 THE APPELLANT'S ARGUMENTS IN REPLY 7.1 We have also considered and appreciated the Appellant's Heads of Argument in reply filed on 21st August 2024. 7.2 It is the Appellant's argument that the lower Court misapprehended the fact that the contract under discussion did not relate to the existing contract but was for different services. J10 8.0 THE HEARING 8.1 Messrs Anthony Associates having filed a notice of non-appearance, Counsel Phiri was invited to respond to the appeal. He placed reliance on the documents before the Court. He prayed that the appeal be dismissed with costs. 9.0 ANALYSIS AND DECISION OF THE COURT 9.1 We have carefully considered the arguments and submissions of both Parties as well as the impugned Judgment of the lower Court. We are of the considered view that the central issue for determination in this appeal is whether the learned trial Judge was on firm ground in finding that the Respondent was not in breach of contract and in declining to grant the reliefs sought by the Appellant. 9.2 We have constantly guided litigants that an appeal must be anchored on discernible issues of fact and law. Where a party is simply dissatisfied with a Judgment of the lower Court, an appeal will be viewed simply as an attempt for a second bite of the cherry. The circumstances in which an appellate Court may set aside findings of fact are slim and narrowly construed. The question we ask ourselves, before we embark on such a venture, is whether the findings arrived at were so perverse and against the weight of evidence, or whether they were made upon a misapprehension of facts and findings upon which no trial Court acting correctly can reasonably make. 9.3 Authorities abound in the Jurisdiction, and we place reliance on the cases of Barbara Bwalya Chibulu v Joseph Zulu and The Electoral Commission of Jll Zambia 5 in which case the Apex Court reiterated the principles it had pronounced in the ce lebrated case of The Attorney General v Marcus Kampumba Achiume 6 . 9.4 Without losing sight of the above, it is trite also that the Party who alleges, must prove and the Appellant needs to be ab le to show t hat it discharged this burden adequately. Again, celebrated decisions of the Supreme Court on the issue of burden of proof as settled by the case of Khalid Mohamed 7 need no further elaboration. 9.5 With the above noted, in determining the issue before us, we shall consider the appea l in the man ne r ado pted by the Appellant. We have noted t hat the Appellant has elected to abandon ground 3 of the appeal. With respect to ground 2, the Appellant contends t hat the Respondent did not communicate any intention not to renew the contract for 2020, until 5th January 2020, and that the re was a subsisting contract between the Parties on 5th January 2020, when the Respondent terminated the same . 9.6 It is not in dispute t hat the parties had a contractual relationship spanning the years 2017 to 2019. Having perused the record, we observe that no written contract was exh ibit ed befo re the Court. What is clear from the Record is t hat the Parties conducted themselves in a manner indicative of a contract ual relationship throughout the period in question . The main question before this Court is whether the te rmination of th at relat ionship was lawfully and properly effected. 9.7 While we note t hat the parties have refer red us to Bidvest Food Zambia Limited and 4 others v CAA Import and Export -Appeal No.56 of 20173 in J12 their heads of argument, we find it necessary to emphasize the importance of citing the correct lega l authorities. In this regard, the proper citation is Bidvest Food Zambia Ltd and Others v CAA Import and Export Ltd 8. 9.8 We note the Appellant's reliance on the aforementioned case taken from para 12.39, which states as follows: l} Where no termination clause exists, a contract is determinable by reasonable notice; and 2) What constitutes reasonable notice is determined bearing in mind various factors such as the length of the parties' relationship, inter alia; and 3) In the absence of a reasonable notice period, the terminated party is allowed to claim an equitable indemnity whose purpose is to compensate the terminated party for the losses suffered because it did not receive a notice period. 9.9 We also refer to the Kenyan decision of Wataari & 11 others v Registered Trustees of Telposta Pension Scheme9 in which the Court of Appeal stated as follows at paragraph 26: "26. The Supreme Court of Seychelles in Allen Jean & Another v Wellington Felix & another, Civil Side No 15 of 2008 taking aid from a decision rendered by Lord Denning U in Packer v Packer {1954} P 15 at 22{7}, extended the scope and applicability of the doctrine of Legitimate Expectation to the domain of private contract law. It accepted the plea of 'legitimate expectation' and awarded damages to the Plaintiff. The reasoning, upon which the said court was driven to award damages is extracted herein under: J13 "19. At the outset, I note that the instant case breaks a new ground in our contract law. The court is called upon to determine in this matter, whether a "legitimate expectation" of a party based on fairness/reasonableness and to an extent, based on an implied consensus ad idem would give rise to an implied term in a private contract and vice versa. This new question is an inevitable development in the evolution of contract law. This development though seemingly a new vista in contract law, is necessary for the advancement of justice in this time and age, especially when we are embarking on the voyage of revising our Civil Code and to meet the changing and challenging needs of time and society. Indeed, all social contracts governing the individual interactions in society eventually metamorphose into legal contracts or relationships such as marriage, family, trade unions, associations, government (vide Rousseau's - 1712-1778 - social contract theory), etc. Hence, Contract Law has to evolve as society progressively evolves more and more from Status to Contract as Henry Sumner Maine observed in his book Ancient Law (1861) thus "we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract. 20. The concept of legitimate expectations originally developed in English law. It is generally applied only in matters of Judicial Review and falls within the domain of public law. It is truism that this concept is not traditionally applied in matters of contracts, J14 which entirely falls within the domain of private contract law. This concept cannot on its own constitute a valid cause of action in contract; and the courts cannot directly apply this concept to do justice in contracts invoking the principle of fairness or reasonableness. 21. However, now time has come to rethink, remold and extend its application to other branches of law such as Contract, as it constantly evolves. In my considered view, a legitimate expectation of a party to a contract and a breach thereof shall constitute a valid cause of action in law provided that: i. the said expectation is based on an implied term of the contract; ii. such terms are implied on the ground of fairness or reasonableness; or an implied consensus ad idem; iii. the aggrieved party to that contract had relied and acted upon that implied term (as has allegedly happened in this matter); and iv. There had been a breach thereof, by the other party to the contract." 9.10 What is clear from the evidence on record in casu, is that by letter dated 5th November 2019 on page 161 of the Record, the Respondent expressed an intention to terminate the business relationship with the Appellant. Subsequently, on 5th January 2020, having failed to reach an agreement or sign a new contract, the Respondent issued a formal letter of termination as seen on page 194 of the Record. JlS 9.11 In the Wataari9 case, the Court of Appeal of Kenya, found that an implied agreement arose from the conduct of the defendant, giving rise to a legitimate expectation. The circumstances in the present appeal, however, are distinguishable. From the evidence, it is clear that the Respondent, through their conduct, clearly communicated to the Appellant their intention not to renew the contract for the year 2020. 9.12 The Supreme Court, in the cited case of Davis Evans4, on the issue of legitimate expectation of renewal of contract, rejected the argument and held as follows: " ..... Our perusal of all contracts entered into between the parties to this appeal shows that they are all independent of each other and offered at the sole discretion of management without any input whatsoever required from the appellant. The appellant did not claim that he was assured of a new contract by anyone acting on behalf of the respondent or that contract referred to any other condition precedent to be met by himself. And none of the subsequent contracts, in any way referred to the previous one, meaning they were standalone contracts, each with its independent terms and conditions. 11 9.13 In our considered opinion, the above finding is on all fours with the issue before us. In a Judgment of this Court, delivered in the case of Zambia Electronic Clearing House Limited v James Kalengo10 , we stated on the issue of 'legitimate expectation' as follows: "This principle of legitimate expectation cannot be said to be applicable in this case as the respondent had a fixed term contract J16 which came to an end by effluxion of time and without any assurances being given by the Appellant that it was committed to renewing his contract for a further term. " 9.14 The position was similarly affirmed in the Court's decision of Maikisa Matthew 1/ukena v Patents and Company Registration Agency11 , wherein the appellant was informed of the non-renewal of the contract of employment seven days prior to its expiry. In that matter, the Court found that there was no conduct on the part of the Respondent (the employer) that cou Id have reasonably given rise to a legitimate expectation of renewal. Accordingly, the Court concluded that the circumstances of the case did not support a finding of a reasonable expectation of renewal of the contract of employment . 9.15 We are of the settled view that we cannot, by any stretch of imagination, accept the Appellant's argument that the Respondent did not communicate any intention not to renew the contract for the year 2020. A fixed term contract is simply that. We find no merit in ground 2 and dismiss it accordingly. 9.16 With respect to grounds 1 and 4, the Appellant argues that the manner in which the termination was effected, was detrimental and constituted a breach of contract. Having thoroughly examined the record, we are of the considered view that, in the absence of any express term addressing termination, and upon a holistic review of the evidence, the learned trial Judge was on firm ground in finding that the contract came to an end each year by effluxion of time. This position is further supported by the Appellants ' arguments in reply at paragraph 2.3 thereof, in which the Appellant J17 conceded that the 2019 contract had come to an end on 31st December 2019. It is also notable that the Respondent's letter of intention to terminate, dated 5th November 2019, was acknowledged and received by the Appellant. 9.17 In our considered view, the sequence of events constitutes sufficient evidence to substantiate the Respondent's position that the notice was both adequate and reasonable. It is trite that the term 'adequate notice' ought to be interpreted within the context of the contract's natural expiration. The Supreme Court in the cited case of Bidvest8 considered the notice periods for termination of unwritten agreements and stated as follows: "The view of the Court below was that neither party can determine what is reasonable notice until it comes to give notice at which time that party wanting to give notice must look at the existing situation between the parties to determine the reasonable notice period." 9.18 It is our view that while there was correspondence that may be suggestive of an intention to renew the relationship for 2020, the same was premised on the request for certain information as seen on page 173 of the Record. The Respondent further made it clear, through its said letter of 5th November 2019, that it no longe r wished to proceed with the contractual arrangement. 9.19 On the issue of damages, the Appellant argues that, due to the Respondent's alleged breach, equitable indemnity ought to be awarded . However, having found that there was no breach, it follows that this argument must fail. We accordingly agree with the learned trial Judge's finding that the Appellant not J18 having discharged the burden of proof incumbent upon it, is not entitled to the reliefs sought. 9.20 The Appellant's submissions are, in our opinion, reflective of dissatisfaction with the decision of the lower Court, rather than a demonstration of any legal issue based on breach of contract or its entitlement to equitable indemnity or damages. We are of the considered view that it has not succeeded in proving any of its claims. We find no me rit in the subm issions on breach of contract. Grounds 1 and 4 fai l accordingly. 10.0 CONCLUSION 10.1 Having found no merit in grounds 2, 1 and 4, the appeal stands dismissed with costs to the Respondent. j M. J. SIAVWAPA JUDGE PRESIDENT ~ F. M. CHISHIMBA A. N. PATEL S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J19