Medha Consultancy Limited v Lake Petroleum Limited (2024/HKC/58) [2025] ZMHC 39 (24 June 2025)

IN THE HIGH COURT FOR ZAMBIA 2024/HKC/ 58 AT THE COMMERCIAL REGISTRY HOLDEN AT KITWE PLAINTIFF LAKE PETROLEUM LIMITED DEFENDANT Before the Ho.n. l\'lr. Justice E. Pengele on 24th June, 2025. For the Plaintiff: Mr. Mike Benwa of Messrs. Mike Benwa Legal For the Defendant: Mr. D. S. Libati of Messrs. D. S. Libati Legal Practitioners Practitioners JUDGMENT Cases referred to: 1. Khalid Mohamed V. The Attorney-General (1982) Z. R. 49; 2. Hitech Logistics Limited V. Vugondo Italian Style Limited, Appeal No. 80 of 2020; 3. Colgate Palmolive (Z) Inc. V. Abel Shemu Chuka and 110 Others, Appeal No. 185 of 2005; 4. Printing and Numerical Registering Compa (1875) LR 19EQ 462; and -~ :, - . .: '·:, , •' .. / '/,1 . --~~·:: ' ; ' . ---' CamScanner 5 . The Rati n g Va lua tion Cons ortium and D. W. Zyambo & As s o ciates (S u i n g as a Firm) V. The Lusaka City Council and Zamb ia Na tional T e nde r Board (2004) Z. R. 109. Legis lat i o n referred t o: a. R ules of the Supreme Court, 1999 Edition. Othe r works referred to: (i) "Chitty on Contracts", 25 th Edition. 1 . I NTRODUCTION 1.1 This action was commenced b - the Plaintiff o n - 7 th September, 2024, by writ of summons nd stat m e nt f claim. The Plaintiff has asked th e Cour f r th f ll win reliefs: (i) the immediate payment of th e sum of USD 379,400.00 being the principal loan amount together with the contractual intere t accrued as at the date of the writ of summons herein, which sum of money the Defendant has failed , refused and/ or neglected to pay to the Plaintiff; (ii) an order that the Defendant pays the further accruing monthly contractual interest of the sum of USD4,200.00 per month, until the date of the final and full payment; (iii) damages for breach of contract; (iv) interest on all sums found due: (v) costs of and incidental to these proceedings; and . J2 ~ CamScanner I I (vi) further or other relief that the Court may deem fit. 1.2 On 14 th October, 2024, the Defendant entered appearance and filed a defence. 1.3 On 29 t h October, 2024, the Plaintiff filed a reply to the Defendant's defence . 2. STATEMENT OF CLAIM 2 .1 In its statement of claim , the Plaintiff has stated that, sometime in December , 2019 , the Defendant requested the Plaintiff for a loan in the sum of US$140,000.00. The Defe ndan t promised to repay the loan within a period of three mon ths from the date of disbursement. The Plaintiff passed a r es olution to lend to the Defendant the aforesaid sum with in teres t. 2 ...... The Plain tiff went on to say that on 9 th December, 2019, the Plaintiff and the Defendant entered into a written agreement und er which the Plaintiff lent to the Defendant the sum of US$ 14 0 ,000.00. The Defendant agreed to repay the loan with interest at a monthly rate of 3%. 2.3 The Plaintiff pleaded that the Defendant has refused, failed and/ or neglected to pay back the loan amount, together with the agreed upon interest. According to the Plaintiff, it has suffered loss and damages for a period of over 57 months as a result of the Defendant's default. 3. DEFENCE 3.1 The Defendant stated that the correct position is that the Plaintiff purchased fuel dispensers from the Defendant at the -J3- CamScanner total amount of US$ l 00 ,000.00. The Defendant received that amount on 24 th Dece mber, 2019. 3.2 Th e Defendant denied the Plaintiffs claims a nd main tained that the said claims are mischievous, misplaced, frivolous and vexatious . 4. REPLY 4.1 The gist of the Pl aintiffs reply was that it does not deal in any fuel products a nd , th r i r , h as never been in need of purchasing a ny fu 1 di p nse rs . According to the Plaintiff, it includ ed th n rrc ti n of fu el dispensers in the bank transfer at th e in n.1 tion of t h e Defendant . The Defendant had info rmed the Pl in tiff th at the Defendant needed the money for the p 1 · ha e of fuel dispensers. 4.2 Th e Plai ti f \Yent on to say that, in the event that this Court agrees \,ith the Defendant that there was an agreement for the purch ase of fuel dispensers, the Court should order the De fendant to refund to the Plaintiff the sum of USS 100,000. 00, under the limb of any other relief. Further, the Court should order the Defendant to pay to the Plaintiff damages for breach of contract for the Defendant's failure, refusal and/ or neglect to deliver the alleged fuel dispensers to the Plaintiff. In addition, the Court should award the Plaintiff interest. 5. EVIDENCE FOR THE PLAINTIFF 5 . 1 At trial, the Plaintiff called one of its Directors, Sairam Boyina (PWl), as its only witness. -J4- CamScanner 5. 2 Th e gist of h is tes tim ony was th a t, sometime in December, 2 01 9, th e Defend ant a ppr oa ched the Plaintiff with a request for a loan of US$ 14 0 ,000 .00 . The Defendant indicated that it needed th a t m on ey to purcha se fuel dispensers in addition to oth er needs of the Company. The Def~ndant promised to pay back th e money within a period of three months. 5 .3 The w itne ss went on to testify that the Plaintiff passed a r e solution on 9 t h December, 2019, to lend the Defendant the aforesaid sum with interest. In this regard , he referred the Court to page 1 of the Plaintiffs bundle of documents. 5 .4 It was PWl 's testimony that on 9 th December, 2019, the Plaintiff and the Defendant entered into a written agreement under which the Plaintiff lent to the Defendant the sum of US$140 ,000.00. The Defendant agreed to repay that money with a monthly interest of 3%, translating to US$4 ,200.00 per month. In support of the foregoing , the witness referred me to page 3 of the Plaintiff's bundle of documents. 5.5 The additional testimony of PWl was that he paid the Defendant US$40,000.00 in cash. Thereafter, he instructed First Capital Bank to transfer the sum ofUS$100,000.00 into the Defendant's bank account held with Eco Bank. That amount was accordingly transferred into the Defendant's bank account and the Defendant confirmed receipt. 5 .6 According to the witness, at the time of transferring that amount the Defendant instructed him to indicate in the narration of the bank transfer that the money was for the -JS- CamScanner Defendant's purchase of fuel dispensers which the Defendant needed in its business operations. He did not see any problem with indicating the said narration. This was because the Defendant is known to deal with fuel products and owns a number of fuel service stations around the Country, which require the use of fuel dispensers. To this extent he referred the Court to the document appearing at page 15 of the Plaintiffs bundle of documents. 5.7 PWl proceeded to testify that, after the Plaintiff had disbursed the full loan amount, the Defendant refused, failed or neglected to repay that amount together with the agreed interest. 5.8 It was PWl 's further testimony that, sometime in 2022, the Defendant's Director and Finance Manager gave the Plaintiffs Director the Defendant's general ledger which showed how much the Defendant had received from the Plaintiff. According to him, the said general ledger showed that the Defendant had received a total sum of US$140,000.00 from the Plaintiff. For this, the witness referred the Court to the document appearing at page 16 of the Plaintiffs bundle of documents. 5. 9 The witness went on to testify that the Defendant owes the Plaintiff interest in the sum of US$239,400.00 as at 27th September, 2024. The loan continues to accrue monthly interest of US$4,200.00. -J6- CamScanner I 5.10 It was the additional testimony of the witness that it is not true that the transaction between the Plaintiff and the Defendant involved the Plaintiff purchasing fuel dispensers from the Defendant. The Plaintiff does not deal in any fuel products and has ne, er needed to purchase any fuel dispensers or fuel in the amount of US$140,000.00. In his opinion, this is ,;vh\ the Defendant has not produced any quotation , in,·oice, r ceipt or delivery of the alleged fuel dispensers. Further, the Plaintiff has not signed any agreemen t in,·oi e, deli, ery note or quotation relating to the alleged fuel dispensers. 5 . 11 The \\itness proceeded to testify that, in the event that this Court agrees \\ith the Defendant that there was an agreement for the purchase of fuel dispensers, the Court, under the limb of any other relief, should order the Defendant to refund the Plaintiff the sum of US$ l 00,000.00, which the Defendant confirmed to have received. Further the Court should order the Defendant to pay damages for breach of contract in view of the Defendant's failure, refusal or neglect to deliver the alleged fuel dispensers to the Plaintiff. In addition, the Court should award interest on the amount found due. 5.12 Under cross-examination, the witness confirmed that the document appearing at page 1 of the Plaintiffs bundle of documents is the resolution of the Plaintiff. He agreed that, without the said resolution, the agreement would not have proceeded. -J7- CamScanner 5.13 When he was referred to page 5 of th e Plaintiff's bundle of documents, the witness confirmed that there is no indication of any office bearer of the Defendant Company on that page. He also testified that there is no name indicated in relation to the signature appearing on that page. Further that there is no indication as to ,,vho signed the agreement on behalf of the Defendant. 5.14 When furth er cross- xa min ed, the witness accepted that he did not bring to ourt any r esolution made by the Defendant to enter in to th trans action. 5 . 15 In r e spons e to anoth e r question, PWl agreed that the emails appearing at pages 6 to 14 of the Plaintiffs bundle of do cu ments y1:ere written by him and did not have replies from the Defendant . 5.16 Under further cross-examination, the witness said that the document appearing at page 15 of the Plaintiff's bundle of documents was an instruction to the Plaintiffs bank to pay the Defendant Company. He agreed that the narration indicated was "purchase of fuel dispensers". In response to another question the witness stated that the narration was not correct. 5.17 In re-examination, PWl clarified that the Finance Manager clearly instructed him that, since the Defendant deals with petroleum stations, the Defendant wanted to use the funds to purchase fuel dispensers. 5.18 That marked the close of the Plaintiffs case. -JB- CamScanner 6 . EVIDENCE F OR THE DEFENDANT 6 . 1 After th e clos e of the Plaintiff's case , the learned Counsel for th e Defen d a n t indicat ed t o th e Court that the Defendant would n ot call a ny witn ess . 7 . SUBMISSIONS 7 . 1 On 7 t h May, 2025, th e learne d Counsel for the Plaintiff filed written submission. 7 .2 On 21 s t May , 2025 , the learned Counse l for the Defendant also fil e d written submissions. 7 .3 I have attentively read through the writte n submissions filed by Counsel for bo th partie s . I am indebte d to Counsel fo r the ex tensive r e search that w e nt into crafti ng the s ubm issions . 7 .4 I have taken the submissions into accoun t in arriving at m y decision. However , I will not reproduce d the co ntents of the submissions in this Judgment. 8 . CONSIDERATION AND DECISION 8 .1 I have taken time to carefully con s id er the ·writ of summons and state ment of claim , th e d efence and t h e re ply to th e defence. I have also given du e r egar d to the te stimony of the Plaintiffs sole witne ss . Furth e r , I h ave take n into account the written submissions fil e d by th e learned Counsel for the parties. 8 .2 It is not In dispute that, sometime In December, 2019, the Plaintiff and the Defendant had some transaction . It is also common cause that, under that transaction , the Plaintiff paid s ome money to the Defendant. -J9- CamScanner 8.3 Wh a t is in di s pu te is the nature of that transaction and how m u ch money th e Pl ai ntiff pa id to the Defendant. 8 .4 Th Plaintiff's position is that the transaction was a loan agreem ent. According to th e Plaintiff, it advanced to the Defendant a loa n in the sum of US$ 140,000.00 on 9 th De cember, 2019 . The loan was s upposed to be repaid in a p eriod of three mon th s with interes t at a monthly rate of 3 %. 8 .5 Conversely th e position of th e Defendant is that the Plaintiff purchased fu el dispe nsers from the Defendant at a total cost of USS 100,000 .0 0 . The Defendant confirmed in its defence th a t it received that amount from the Plaintiff on 24 th December 2019. 8.6 Th e broad qu estion that I must resol ve , therefore , relates to the n a ture of th e transaction that the parties entered into in December , 2019 , and how much money \Vas given by the Plaintiff to the Defendant under that transaction. 8 . 7 Counsel for both parties have recognized the trite principle that "h e who ass erts must prove". Courts in Zambia have had occas ion to pronounce themselves on that principle 1n num e rous decide d case. In the frequently cited case of Khalid Mohamed V. The Attorney-General1, the Supreme Court said the following: "An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the -JlO- CamScanner 8. 3 What is in dispute is the n ature of th a t trans a ction and how much money th e Pl a in tiff p aid to th e Defendan t . 8 .4 The Plain tiffs positi on is th at the tran s ac tion w a s a loan agreement. Accord in o to U1 Pla in tiff, it a dvan ced to the Defend ant a loan in th su m of US$ 14 0 ,000 .00 on 9 th Decemb er, 201 ~. Th 1 n w , s s u p p os d t o b e repaid in a p e r iod of th r nth s \\i t h in t -r st a t a m on thly rate of 3 %. 8 .5 s iti 11 f t h D i n dan t is that the Plaintiff pu r c h n s r from the Defendant at a total cost The Defen d a nt confirmed in its defence tJ1 h t amoun t from the Plaintiff on 24 th 8 .6 The that I must resolve , therefore, r elates to the n e tran s a ction that the parties entered into in De e e-. _ Q 19 an d how much money was given by the Plai tiff to e Defendant under that transaction . 8. 7 Cou s e _or b oth parties have recognized the trite principle that "he \,-h o as s erts must prove". Courts in Zambia have had occasion to p r onounce themselves on that principle 1n numerous d ecided case. In the frequently cited case of Khalid Mohamed V. The Attorney-General1, the Supreme Court said the follo wing: "An unqualified proposition that a plaintiff should s uc c eed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the -JlO- CamScanner opponent's defence does not entitle him to judgment. I would not accept proposition that even if a plaintiffs case has collapsed of its inanition or for some reason or other, judgment should nevertheless be given to him on the ground that defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need defence." 8.8 However, Counsel for the Plaintiff has gone on to canvass the contention that the Defendant bears the burden of proving its affirmative defence. According to Counsel for the Plaintiff, the Defendant's affirmative defence is that the transaction between the parties involved the Plaintiff purchasing fuel dispensers from the Defendant in the sum of US$100,000.00. Counsel submitted that the Defendant has thereby assumed the legal burden to prove the foregoing affirmative defence. In this regard, Counsel has referred me to the decision of the Court of Appeal in the case of Hitech Logistics Limited V. Vugondo Italian Style Limited2 . 8 . 9 In the Hitech Logistics Limited2 case, the appellant raised the contention that the court below shifted the burden of proof to the appellant, who was the defendant in the lower court. In that case, in its defence and counterclaim ' appellant had made certain assertions such as that the bill the of lading was amended on 31 st October, 2014, and that the -Jl 1- CamScanner ls w ' r : obta in d u n d er pre-c leara n ce before th e bill of ~ 0 Ind in b ·was amended. C\ . 10 The ou rt of Appeal in that case said the following: " Th e learned author Peter Murphy in his book "Murphy on Evidence" in respect of the burden of proof states at pages 89 and 90 that; "The legal burden of proof as to any fact in issue in a civil case lies upon the party who affirmatively asserts that fact in issue and to whose claim or defence proof of the fact in issue is essential ... If the plaintiff fails to prove any essential element of his claim. the defendant will be entitled to judgment. The position of the defendant is somewhat different. Since the plaintiff affirmatively asserts his claim, the plaintiff bears the burden of proving the claim and the defendant assumes no legal burden of proof by merely denying the claim. However, if the defendant asserts a defence which goes beyond a mere denial (sometimes) referred to as an affirmative defence) the defendant must assume the legal burden of proving such defence. An affirmative defence is most easily recognised by the fact that it -Jl2- CamScanner / raises facts in issue which do not form part of the plaintiffs claim". In t he present case the affirmative defence by the appellant (defendant} was that the bill of lading was amended on 3pt of October 2014 and further that the Release Order was obtained under pre-clearance. Having asserted the affirmative defence, which went beyond a mere denial, the defendant assumed the legal burden of proving such a defence. The appellant in this matter failed to prove his assertions that the bill of lading was amended on the 4 th of December 2014 and the goods were obtained under preclearance even before the bill of lading was amended." 8 . 11 I agree with the Plaintiff that, in the present case, the Defendant has raised an affirmative defence. The Defendant has not merely denied the claim made by the Plaintiff that the Plaintiff advanced to the Defendant a loan in the sum of US$ l 40,000.00 . The Defendant has affirmatively asserted in its defence that the correct position of the alleged transaction was that the Plaintiff purchased fuel dispensers from the Defendant for a total amount of US$100,000.00. It is clear that the Defendant's defence raises facts in issue which do not form part of the Plaintiffs claim. 8.12 Consequently, I agree with the Plaintiff that the Defendant bears the burden of proving its affirmative defence. -J13- CamScanner 8.1 3 As rightly submitted by Counsel for the Plaintiff, despite having the burden to prove the aforementioned affirmative defence, the Defendant did not call any witness at trial. 8 .14 I must point out that merely pleading alleged facts, as the Defendant did in its defence, cannot be ipso facto proof of what is pleaded. This is because it is trite law that pleadings contain only facts and not evidence of what is pleaded. What a party has pleaded 1nust b e proved by evidence. In this regard , Order 1 . rule 7 of the Rules of the Supreme Courta, pro\ id es that- "( 1) Subject to the provisions of this rule, and rules 7 A, 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits." 8.15 Consequently, since the Defendant did not call any witness at trial to give evidence to prove the affirmative defence, I hold that the Defendant has failed to prove its affirmative defence. 8.16 I must hasten to state that the collapse of the Defendant's affirmative defence does not imply that the Plaintiffs case should automatically succeed. As decided in the case of Khalid Mohamed V. The Attorney-General1, which I have already made reference to in this Judgment, "A plaintiff -Jl4- CamScanner .must p rove his case and if he 11 • fa ilure of the opponent's def; ads to do so the mere ence does not entitle him to judgment". 8. 17 Th e ques tion, therefore still rem . "h , pro ved its claims on a balance of probabi1Jties?" ams, as the Plaintiff ,'-) 18 T he Plaintiff has anch d • . its claims on the agreement p ro duced at pages 2 to S of its bundle of documents. ore According to the Plaintiff, pursuant to that agreement, the Defendant borrowed US$140,000.00 from the Plaintiff. 8 . 19 In his submissions, the learned Counsel for the Defendant has raised some issues against the aforesaid agreement. The essence of the contentions by Counsel for the Defendant is that the agreement appears to have been a total fabrication. 8.20 I agree with the contention by Counsel for the Defendant that there are some unsatisfactory aspects touching on the authenticity and reliability of the agreement. 8 .21 I see credence in the submission by Counsel for the Defendant that PWl did not mention the name of the specific person or persons, from the Defendant Company, who he was dealing with when allegedly lending the money to the Defendant. 8.22 A review of the testimony of PWl shows that his approach was to merely make assertions against the Defendant, as a Company, without pointing out any natural person from the Defendant Company who allegedly represented the -J15- CamScanner Defendant Company. I find that approach by PWl to be strange and unsatisfactory. 8 .2 3 For in s tance, PWl made assertions about the Defendant being in desperate need of money to boost its business. He made allegations about the Defendant persuading the Plaintiff to lend the Defendant money. He claimed that the Defendant entered into the subject agreement. He went on to state that he paid the Defendant a cash amount of US$40,000.00 before doing a bank transfer to the Defendant's bank account of US$100,000.00. 8.24 However, in all the above, PWl did not mention any human being from the Defendant who PWl allegedly dealt with. 8.25 The foregoing is despite PWl claiming that the Plaintiff agreed to lend money to the Defendant because PWl knew and trusted the Defendant's Directors. It is difficult to understand why, in his testimony before me, PWl did not mention even just one of those Directors he claims to have known and trusted. 8.26 In his testimony, PWl did not even mention which human being, from the Defendant Company, he handed over the US$40,000.00 cash to. It is only in the written submissions that Counsel for the Plaintiff has attempted to connect two separate US$20,000.00 amounts to some sums appearing in the Defendant's bank statement and what the Plaintiff has said is the Defendant's general ledger. -J16- CamScanner 2 1 In th e written submissions C 8 . , ounsel for the Plaintiff has s u bmitted that the Defenda t' n s general ledger and bank statement the US$ 4 0 ,000.00, broken down as US$20,000.00 on 9 th the Defendant received show that December, 2019 and US$20,ooo.oo on 27th December, 2019. Further that the Defendant received US$100,000.00 on 24 th December, 2019. 8. 28 However, the foregoing submissions by Counsel for the Plaintiff do not seem to align properly with the testimony of PWI. This is because the testimony of PWl shows that he only made the bank transfer of US$100,000.00 after he had paid the Defendant US$40,000.00 in cash. For clarity in this regard, in paragraph 9 of PWl 's witness statement, PWl stated in part as follows: "9. After having paid the Defendant the sum of $40,000.00 in cash I further instructed the bank, First Capital Bank, to transfer the sum of $100,000.00 into the Defendant's bank account held with Eco Bank by way of a telegraphic transfer/ SWIFT .... " 8.29 In addition, there seem to be some incompatibility between the testimony given by PWl, the submissions of Counsel for the Plaintiff and the agreement, with regard to when the payment of the US$140,000.00 was made. As indicated above, PWI 's testimony was that the US$40,000.00 was paid in cash before the US$ 100,000.00 was paid . Counsel for the -J17- CamScanner 1'1;1 11 11111 I \ ... 111 . I \ I I' '1 I" .. Ill I u, m20,ooo.oo, 1 i , '( ) 11 11 ,,·1·\ 1'1', i 11 I l l' 1/; 1' q 11: () , ind h nrIi1 ~ willlf'. fl r-llnl cm nt, lh c t •:i l11 11 1111,· li1· I'\\/ I :i l1 d w~1 lh 11 ()r (h . p 1y 111t•11( ! , ' I ' ·i 111 111' lhl' l)dl 11<ln11I. n k11owl dgcd Ilic' Lf~ ' (/; I 10,000.00 on ih I l 11·1•11d 1 •1-. .' O 111 , "'" · 11 tl11· 11n 1't''1 ' nw11I Wfl H Aip-n cl. To this · l r'1 •1· t. i11 I1.1 1·: 1!~1':l }ll\ ~, nl' ltiii \\it111 1 As :-dnl ern nl , PWl hns 1 ' !'t°I d 111 · ·d 111, ti1 lh1 w i11 1; 1·lrnt:·W nl' 1hr 11gr cc 111 cnt: "l. l lu~ l t'Jult r b 1s It ut th,. Borrower One Hundred uHI F , t~ tl'hommnd United States Dollars \l~l l•hl,000.00) Dollnrs i·eccipt whereof the Ho n owc.· he t'b) n Jcnowlcdgcs to have received." : ' .,, I l'llC' .tl , . · ·L 11 s1• s li11w:-: tlrn t thr De fend a nt a llegedly .1 · k11 \\' I , I; ', I 1·c·l· c' i~ t o f tlw full US$1 40~000.00 fron1 the l 'Lti1ltilr' 1q , 11 s ig ni11 g I ht· 1f'Tt'C' m cnt on 9111 D mb r, 2019. l'lii .· i. · , 111 11-. 11·\ · tr, t !It' l f' sl im c n y or PW] th a t th n1oney was . p.ti I., · ll . ,r;.1(),0() l.00 l' 1S h nnct l A t r US$100 000.00 bank . . t r.1t1sl'<-r. 1-'11 r tlt t· 1-. tli. I l' lnt1::-c is not consist "nt with the .·ulin1i. ·si 11 1s rn :1d c· liy ' m rnscl for 1hc Plnintiff n this issue, \\' lt1 1 .1 h·.111 t·c d tl w pn sili < 11 thnt tht' U8$ 40.000.00 was paid l1-1 11' h ·.· , ( l l,' $.: 0 ,0 UO.( 0 on l\\'O ctiffc r nt dat s. ~.,, .' I'll ·r' l!'l c'!1r I(\ l11 furth er i•·nµ:::; \\ hi ch mRk the authenticity t' t 11' :11: 1· ·c· 111c nt ·1'!'_\' 1ucslionnb1 . Th Plaintiff and the P ·f •11d 111 t .,re· lin,ill-d li 1b ility ornµ nni s a nd not ordinary 11 11111 . \11 l · 1n~• ~. It i~ in r ontt'S IRbl · th a t it is not legally -Jts. CamScanner p ss ibl for the Plaintiff's witness to have dealt with the D fenda n t Company without the involvement of any of the huma n beings through whom the Defendant operates. 8.33 IV[ore curious is the fact that even in the alleged agreement, there is no identifiable natural person who allegedly bound the Defendant to that agreement. There are just what appear like stamps or seals for the Defendant and a signature against a portion where someone was supposed to sign on behalf of the Defendant. It is not clear whether whoever signed there was in fact someone from the Defendant. This is because there is no name and position for v. hoever allegedly signed. Further, in his testimony, PWl did not tell the Court which person from the Defendant supposedlv signed the agreement on behalf of the Defendant. 8.34 PWl confirmed under cross-examination th a t the a greement does not have the address for the Defend ant · and that there is no name and position for th e p erson who a llegedly signed on behalf of the Defendant. 8. 35 On the totali ty of the foregoing, I am inclined to find as a fact that the Plaintiff has failed to prO\ e on a balance of proba bilities that the Defendant executed the agreement a ppearing pages 2 to 5 of the Plaintiff's bundle of documents. I, consequently, hold that the Defendant cannot be bound by th e contents of that agreement. 8.36 In s o holding, I am buttressed by the decision of the Supreme Cour t in the case of Colgate Palmolive (Z) Inc. V. Abel -J19- CamScanner Shemu Chuka and 110 Others3 • In that case, citing with approval the decision in the case of Printing and Numerical Registering Company V. Simpson 4, the Supreme Court said the follo wing: "If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by Courts of justice." 8.3 7 However. the i~ sue d es not end there. This is because the Defend nt t dispute the fact that it received a bank transfer 000 .0 0 from the Plaintiff. In paragraph 4 of its e. th Defendant confirmed receiving the said _..+ ... '1 December , 2019 . It is common cause that the amount said uaJ1sa.ction is also reflected in the Defendant's bank statemen t appearing a t page 3 of the Defendant's bundle of documents. 8.38 Consequentl · I fin d as a fact that the Defendant received USS 100,000.00 from the Plaintiff on 24 th December, 2019. 8 .39 There is no evidence to show that the Defendant has paid that money back to the Plaintiff. To this ex tent, I hold that the Defendant must pay that money back to the Plaintiff to avoid unjus t en richment. In the case of The Rating Valuation Consortium and D. W. Zyambo & Associates (Suing as a Firm) V. The Lusaka City Council and Zambia -J20- CamScanner Na tional Tender Board5 , the Supreme Court cited with a pprova l a n extract from the learned authors of "Chitty on Contracts", 25 th Editionli1, Paragraph 1147, at page 620, thus- "The courts have also been sensitive to the fact that non-enforcement may also result in unjust enrichment to the party to the contract who bas not performed his part of the bargain but who has benefited from the performance by the other party. As was stated by Devlin J., in the St John Shipping case, non-enforcement of the contract may result in the forfeiting of a sum which "will not go into the public purse but into the pockets of someone who is lucky enough to pick up the windfall or astute enough to have contrived to get it." 8.40 Although the above case of The Rat ing Valuation Co nsortium 5 dealt with th e doc trin e of illega lity, I hold t hat th e p ronouncem en ts of th e Court on unjus t enrich ment apply to th e fac ts of this case with equal fo rce . 8.4 1 I h old th a t, jus tice dem ands th at the Defendant 1s not unjustly enrich ed but is ord ered to refu nd the Plaintiff the money th at th e Plaintiff a d vanced to th e Defendant. For that purpo se , I will treat th e money a d, anced by the Plaintiff to th e Defendant like mon ey lent to the Defendant with a promise to p ay back. -J21 - CamScanner B.42 The Plaintiff asserted , in the alternative, that the US$100,000.00 must be pa1·d w1'th d contract. amages for breach of 8 .43 I hold that the Plaintiff has not adduced evidence of any contract which has been breached by the Defendant, in relation to that US$ I 00,000.00, to warrant an order for damages. 9. CONCLUSION 9.1 In conclusion, I have only found merit in the Plaintiffs case to the extent that the Plaintiff advanced to the Defendant a sum ofUS$100,000.00 on 24th December, 2019. I order that the Defendant must pay back to the Plaintiff that amount with interest at the prevailing Secured Overnight Financing Rate (SOFR) from 24 th December, 2019, to the date of full settlement of the judgment sum. 9.2 The Plaintiff having succeeded to the above extent, I order that the Defendant shall pay the Plaintiffs costs, to be taxed in default of agreement. 9.3 Leave to appeal is granted. Delivered at Kitwe this 24 th day of June, 2025. E. PEN ELE HIGH COURT JUDGE -J22- CamScanner