Gecamines Exploitations and Anor v Dudley International Ltd (Appeal 215 of 2000) [2001] ZMSC 119 (5 June 2001)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 215 OF 2000 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: GECAMINES EXPLOITATIONS 1st APPELLANT GROUPE SODIMIZA 2nd APPELLANT AND DUDLEY INTERNATIONAL LIMITED RESPONDENT CORAM: NGULUBE, CJ, CHAILA AND LEWANIKA, JJS. On 6th March and 5th June, 2001. For appellants - A. Wright, of Messrs Malambo and Silwamba. For respondent - I. C. T. Chali, of Chali Chama and Company. JUDGMENT Ngulube, CJ, delivered the judgment of the Court. In the action, the respondents were the plaintiffs and the appellants the defendants. As pleaded, the plaintiffs claimed a sum of US dollars 1,825,000 as sums due and earned from the defendants between 1995 and 1997 for the shipment of the defendants’ cargo in the form of minerals and other products from the Democratic Republic of Congo as well as procurements for the defendants of industrial spares from,the international markets. The defendants denied ever engaging the plaintiffs to carry out any such assignments for them. During the trial, the claims on the writ turned out to be red herrings, together with claims that the plaintiffs supplied maize, fertilizer and spare parts to the second defendant. Finally, the claims were based on agreements entered into between a company called NEWCO and the defendants. The plaintiffs claimed that they were entitled to a 10% finders fee as commission verbally agreed to be payable by the 2nd defendant for sourcing and finding for them much needed financing. The plaintiffs claimed they found NEWCO and introduced them to the defendants; and that NEWCO made available US dollars 3 million so that the defendants owed the plaintiff a commission of US dollars 300,000. The defendants through DW1 admitted to financing of US dollars One million only. The plaintiffs also claimed that, under the agreements between NEWCO and the defendants, the plaintiffs were to transport copper and other minerals sold by the defendants to NEWCO for which the plaintiffs would be paid what they called in a letter of demand commission on exports at the rate of US dollars 36.65 per ton by 45,000 tons, equalling US dollars 1,604,250. The defendants denied that all that tonnage was sold and carried. The total of transport commission and finder’s fee came to US dollars 1,904,250 and this was the very amount the learned trial Judge awarded to the plaintiffs. The defendants had denied that the plaintiffs were their agents or were doing any transporting at their instance and request since the plaintiffs were not parties to the contract and since delivery to the buyers was in any case f.o.t. (free on truck) Likasi so that if the plaintiffs carried any copper to the sea ports, they did so for the buyers NEWCO and not for the sellers the defendants. The learned trial Judge heard the evidence and considered the documents; he was persuaded by the plaintiffs and gave judgment for the claims discussed, not those in the writ. The defendants have raised a number of grounds and arguments. Some criticize the acceptance of and reliance upon disputed documents such as the contract for the sale of copper to which the plaintiffs were not privy and the alleged agreement for the payment of commission; others criticized the way the issue of credibility of the witnesses was resolved; and several other points. There was only one witness called on each side and the learned trial Judge found that the witness for the plaintiff was more believable. It was he who had testified to being sent by the second defendant to look for financing and who said the contract between the sellers and buyers assigned obligations to the plaintiff to see to the transportation. The plaintiffs witness admitted that the plaintiff only carried or arranged to be carried two consignments of copper so that at no time were 45,000 tonnes carried. The complaint was that the sellers suddenly altered the arrangements, leaving the plaintiffs out in the cold. We have considered the arguments and submissions in this case. From the evidence below, it was true that the plaintiffs took an active part in the initial meetings and arrangements between the sellers and the buyers. They were even mentioned in the contract for the sale and purchase of copper which assigned a role to them. The question was which party' to the contract undertook obligations to the plaintiffs, that is to say, whose agents were they? It was also apparent that the defendant’s decided to cut out these middlemen, resulting in the letter of complaint of 6th September, 1997, from the plaintiffs to the first defendants when the plaintiffs claimed a finder’s fee in respect of the financing and the commission on the transportation of 45,000 tonnes of copper. The awards were based on these two claims and not on the claims as constituted in the writ and pleadings. The parties did not raise before us any issue whether the case had been ultimately decided on a legitimate extension, variation or modification of the original claim and so we approach this matter as if that had been the case. The case was also resolved on an issue of credibility. We heard much argument in favour of our interfering and against such interference. We reaffirm the principles which we have followed over the years that we are not tp interfere lightly with findings based on an issue of credibility when we do not enjoy the same advantages as a trial Court which sees and hears the witnesses at first hand. The arguments advanced here were the same ones rejected below. We cannot be called upon to simply substitute our views unless it is demonstrated that the Judge below fell into serious error; or he or she has given a bad reason for believing one version and disbelieving the other; or the court below has made a mistake in some way and made a finding which is not tenable or reasonable on the evidence adduced. In this regard, there should be no problems of privity of contract in the transactions as ultimately formulated in the letter of 6lh September, 1997. On an issue of credibility, the learned trial Judge accepted that the plaintiffs found or sourced financing from NEWCO for a commission and that the plaintiffs transported copper to the sea ports for the defendants. They are to be paid for work done or services actually rendered. However, the amounts claimed by the plaintiffs were not supportable on the evidence before the court. As for the 10% finder’s fee, the evidence of the witness for the defendants was not challenged or contradicted that NEWCO provided finance of no more than One million dollars (see p. 143 of the record of appeal). The award based on three million dollars was wrong; it should be based on One million dollars. The judgment below is varied accordingly. Again, ther©) was no evidence that 45,000 tonnes of copper were carried. Even Mr. Chilufya (the witness for the plaintiffs,) admitted that only two consignments were carried. The commission on exports of 36.65 dollars per tonne should therefore be limited to the tonnage actually carried in the two shipments. The judgment below is varied accordingly. It follows that the appeal succeeds to the extent indicated, with costs to be taxed if not agreed. M. M. S. W. Ngulube CHIEF JUSTICE. M. S. Chaila SUPREME COURT JUDGE. D. M. Lewanika SUPREME COURT JUDGE.