Michael Kunda v Zambian Lotto Limited (APPEAL No. 95 of 2023) [2024] ZMCA 146 (4 July 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 95 of 2023 HOLDEN AT KABWE (Civil Jurisdiction} BETWEEN: MICHAEL KUNDA AND U 4 JUL 2024 APPELLANT ZAMBIAN LOTTO LIMITED RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 21st May & 4th July 2024 For t he App ellant : M r. J. K. Matende Messrs. Lega l Aid Board & M r. Ch anda Chungu LAZ Pro-bo na prog r am For t he Respondent: M r. T. Muna lula Mess rs. Lu senga M ulongoti Advocates JUDGMENT Patel, JA, delive red t he Ju dgment of t he Cou rt. Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others (2005) Z. R. 138. Carroll v An Post National Lottery Company (2008} IEHC 50 R v Tower Hamlets London Borough Council, ex parte Ahmed (1997} EWCA Civ Parker v Taswell (2002} (incomplete citation) Simpkins v Pays (1955) 1 WLR 975. The Attorney General v Katwushi Kapundula ZLR 1988-89 p 69. K. B Davis and Co (Zambia) Limited v Andrew Masunu SCZ Appeal No. 181 of 2006 Kakoma v State Lotteries Board of Zambia (HP 1256 of 1979} [1981) ZMHC 8 (11 August 1981}. 9. Ludecke v Canadian Pacific Airlines Limited {1979) 26 N. R. 3033 (SCC) 10. George Kakoma v The State Lotteries Board of Zambia (1981} Z. R. 111 (HC} 11. Khalid Mohammed v The Attorney General [1982) ZR 49 12. State Lotteries Board of Zambia v Tembo (SCZ Judgment 3 of 1988) [1988) ZMSC 11 13. Brinkibon v Stahag Stahl (1983} 2 AC 34 14. Carlill v Carbolic Smoke Ball Co (1893) lQB 256 Legislation referred to: 1. The State Lotteries Board of Zambia Act No. 7 (Volume VIII, Cap. 439}, Statutory Instrument No. 35 of 1993. 2. PickaLot Draw (Amendment) Rules, 1993 J2 Texts referred to: 1. Contract Law in Zambia, second edition 2021, by Sangwani Patrick Ng'ambi and Chanda Chungu 2. 3. Smith & Keenas's English Law- ELBS/Pitman 1990. London at page 187 Chitty on Contracts {33 rd Edition, 2021), Sweet & Maxwell, ed. Hugh Beale, Benedicte Fauvarque-Cosson, and Jacobien Rutgers 1.0 INTRODUCTION 1.1. This is an appeal against the Judgment of Mbewe I. Z. J; delivered on 26th January 2023, in respect of an action commenced by the Appellant, (the Plaintiff in the lower court), against the Respondent (the Defendant below) seeking a declaration that the Appellant, is the winner of Mega Jackpot No. 1756 drawn on 12th March 2020. 1.2. The lower court declined to enter judgment in favor of the Appellant. 1.3. In this appeal, there are some undisputed facts, which neither need to be interrogated, nor pronounced upon. It is not in contention that the Appellant, who we also refer to as the Punter, as he was, in his relationship with the Respondent, was a seasoned participant of the Zambian Lotto. He had created and maintained an account using his mobile MTN platform to transact. He was familiar with the rules, or what we can refer to as the terms an.d conditions of play, and in his own evidence, confirmed that he had participated in, and played J3 ! the Zambia Lotto for several years before the Mega Jackpot draw No. 1756 of 12th March 2020. 1.4. The Appellant has urged us to find that he ent ered into a contract and that having fulfilled his obligations, or his part of the contract, we should make pronouncements confirming that he was the winner of the Mega Jackpot draw No. 1756 in the sum of K4, 099,900.00 2.0 BACKGROUND 2.1 For the purposes of this section, the parties shall be referred to as they are in this Court. 2.2 On 6th May 2020, the Appellant commenced an action in the Commercial Division of the High Court, Writ of Summons and Statement of Claim seeking the following reliefs: i. A declaration that he was the winner of the K4, 099, 900.00 Mega Jackpot drawn at 21:30 hours on the 12 March 2020 bearing the numbers 04, 12, 22, 27, 28 and 32 on financial transaction #1306762605 from MTN Zambia. ii. Interest on the sum of K4, 099,900.00. iii . A declaration that the Appellant, having fulfilled his part of the game, it was of no consequence that the Respondent did not forward the ticket number to him. iv. Damages for breach of contract. v. Any other relief the court may deem necessary. vi. Costs. J4 2.3 Of relevance to the appeal is the fact that the Appellant, on 12th March 2020, around 11:52 hours, placed a bet on Zambia Lotto mega jackpot using his MTN mobile number 0964673780. 2.4 It was the Appellant's evidence that he entered pick numbers 12, 04, 22, 27, 28 and 32. It was pleaded, in his statement of claim , that he expected to receive three (3) messages as follows: i. Acknowledgment message from Zambian Lotto specifying entry into the draw and betting conditions to be followed by the player. ii. Financial transaction ID message from MTN confirming payment made by the player to Zambian Lotto through MTN Mobile Money platform. iii. Confirmation of entry into the draw and issuance of Ticket details by th e betting company (Zambian Lotto). 2.5 The issue in dispute was whether it was proved that the Appellant entered pick ball numbers 12, 04, 22, 27, 28 and 32. 2.6 Of relevance to this appeal, was the Appellant's evidence that of the three (3) messages, the Appellant received two {2) w hich stated as follows: i. "Thank you for playing with us. Your ticket details will be issued within 5 minutes after you confirm your payment. (Zambian Lotto received at 11:53 AM}" ii. //Ye/lo, payment of ZMW 7.00 to Zambian Lotto is successful at 2020-03- 12, 11 :53:03, your new balance 145.30 ZMW financial transaction ID J5 #1306762605, thank you for using MTN Mobile Money. (MTN Zambia received at 11:54 AM}." 2.7 The Appellant did not receive the third message showing ticket details from Zambian Lotto and decided to play another ticket at 20:57 PM with the pick nu mbers (ba lls) 13, 14, 23, 30, 41, 01, which numbers were different from the first t icket . 2.8 This time, the Appe llant received all three (3) messages, by text, as follows: i. Thank you for playing with us! Your ticket details will be issued within 5 minutes after you confirm your payment. (Received on March 12 at 20:58 PM} ii. Yellow payment of ZMW 7.00 to Zambian Lotto is successful at 2020-03- 12, 20:59:08, your new balance 138.30 ZMW financial transaction ID # 1307788644, thank you for using MTN Mobile Money. (Received on March 12 at 20:59 PM} iii. Thank you for playing with us! Ticket# 115941002017561450135938 draw # is 1756, draw date 12/03/2020, pick# (balls) 14 23 30 41 0113, purchase date 12/03/2020 and Provider (MTN} transaction# 1307788644. (Received on March 12 at 21:03 PM}. 2.9 It is further undisputed, that a draw was conducted by th e Respondent, on the evening of 12th March 2020, televised on ZNBC TV 1 at 21:30pm, and the winning numbers drawn from th e mixing chamber, were 04, 22, 32, 27, 28, 12 BONUS 39 as winning numbers for the jackpot of K4, 099, 900.00 on draw #1756. J6 2.10 The Appellant insisted that the numbers drawn on Television, were the same num bers he had picked and pl aye d, meaning he had won t he Za m bian Lotto Mega Jackpot for this pa rticu la r d raw. 2.11 The TV Prese nter, however declareq that there being no winner, the j ackpot for the next game, to be played on 14 March 2020, was esca lated t o K 4, 116, 500.00. 2. 12 Aggrieved w it h the out come of the draw, t he Appe llant, on 13th March 2020, went to the Respondent's office, and made several attempts to reso lve his situation as documented on record. It was generally the Appellant 's position, that t he Respondent breached the terms and conditions of the contract, causing the Appellant to suffer loss and damage. 2.13 Th e Respond ent fi led its defence, on 20 th April 2020, denying t he Appellant's allegations and prayed that the Appellant's case be dismissed with costs . 3.0 DECISION OF THE LOWER COURT 3.1 In summa ry, the lower Court considered the arguments and submissions of the pa rti es . Th e lea rn ed Jud ge placed reliance on the case of Wilson Masauso Zulu v Avondale Housing Project Limited 1 and Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others2 where the Supreme Court held that: "A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case. " J7 3.2 The Learned Judge centered her decision on the issue of what happens when a confirmation message is not sent. She was of the view that there was no independent evidence, on record, to prove that the Appellant picked the winning numbers. She noted the lack of proof in the form of a confirmation message from the Respondent showing the draw number of the first ticket, the date, ticket number and the selected numbers. It was her considered view that the first draw was not duly entered in accordance with the procedure of Zambian Lotto. 3.3 The learned Judge found that a valid entry required three messages, and in casu, the Appellant had only received two. She determined, that if any of the three conditions are not met, it is ineligible for the game. It was her finding that there being no valid entry ticket, the Appellant had failed to establish that he complied with the requirements of playing the lotto. 3.4 The learned Judge also held the view that the ticket is an offering to the public, who purchase a ticket to accept the offer, and that the consideration is the amount paid for the numbers. 3.5 It was her considered view that the elements required for a contract such as offer, acceptance, consideration and intention to create legal relations and existence of agreed terms were lacking. It was inferred that there was an invitation to treat to the general public and that a contract could only be consummated, if the Appellant had satisfied all the elements of a binding contract. JS 3.6 The learned Judge was of the opinion that the Appellant did not produce any evidence to show that parties intend ed to create legal relations without satisfying the terms and conditions. The Court accepted the Respondent's submission, that there was no performance of the obligations to render the contract valid, because the winner of the jackpot must be a holder of a valid ticket. 3.7 The ultimate outcome was that the Judge, determined that the Appellant had not demonstrated any breach of contract, leading to the denial of the Appellant's claims. 4.0 THE APPEAL 4.1 Dissatisfied with the outcome in the Court below, the Appellant filed a Notice and Memorandum of Appeal, on 3rd February 2023, fronting three (3) grounds of appeal, namely; i. That the Court below erred in law and fact when she found that the elements for a contract such as offer, acceptance, consideration and intention to create legal relations and existence of agreed terms were somewhat lacking, contrary to the evidence before the court. ii. That the Court below erred in law and fact when it found that since the plaintiff failed to ensure he got or made a follow up on the third message, it was erroneous of him to claim the ticket was part of the draw contrary to settled principles of law and the facts before the court. Jg ::. iii. That the court below erred in law and fact when it held that the Appellant failed, on a balance of probab ilities, to prove his case against the Respondent contrary to the clear evidence before the court. 5.0 APPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPEAL 5.1 We have duly considered and ap preciated the Appe llant's Heads of Argument filed on 4th Apri l 2023. 5.2 The Appellant proposed to argue all grounds of appeal separately. From here on, we shal l summarize th eir points of contention. In relation to ground 1, the appellant argued that contrary to the finding of the Court below, all the elements of a contract in the case were present, namely offer, acceptance, int ention to create legal relations and consideration . 5.3 The Appel lant proceeded to add ress the principles of contract, to an on line lottery environment, and buttressed the same in turn as follows: a. Offer i. It was his submission that what constitutes an offer, in an online lottery, is the invitation to select the prediction numbers and placed reliance on the case of Carroll v AN Post National Lottery Company,3 where the Court held that: "In the context of an electronic lottery, the offer is the invitation to the participant to select a set of numbers and to submit those numbers for consideration in the particular draw. The participant, J 10 by submitting those numbers and the stake money, is accepting the offer." ii. It was t he Appellant's submission, that the record would show that the Court held that "the ticket is an offering to the public w ho purchase a ticket to accept the offer". It was the Appellant's argument, that this view fe ll short of the proper consideration of an online environment, where the 'ticket' is an electronic form, that the public responds to, by entering the numbers that they predict. iii. The Appe llant's contention is t hat t he offer in casu, was w hen the Respondent, through its agent, MTN, provided the electronic options for the Appellant to enter his prediction number. It is the argument, that it is th is option, that gave the Appel lant an opportu nit y to play, in anticipat ion of the mega jackpot, should he predict the correct numbe rs, that were t o be drawn during the live draw that was broadcasted that evening. b. Accepta nce 1. The Appellant placed reliance on the case of R v Tower Hamlets London Borough Council, ex pa rte Ah med 4 where the court, in reference to online lot tery, stated as follows: "Acceptance of the offer was signified by the pressing of the "submit" button on the computer screen by the participant. The process of submission was thus equivalent to the posting of a letter or the dispatch of a telex message." J 11 ! ii. The Appellant placed further reliance on Parker v Ta swell 5 wh ich case involved an online lottery, and the court held as follows : "Acceptance occurred when the participant submitted their entry electronically. The court also held that the terms and conditions of the contract were incorporated by reference and that the participant was bound by them. 11 iii. It is thus the Appellant's submission, that acceptance in this case happened when the Appellant entered the prediction numbers and in response, the Respondent, through its agent, MTN, sent t he following message to the Appellant: "Thank you for playing with us. Your ticket details will be issued within 5 minutes after you confirm your payment. '' iv. It is the refore the ir argument that t here was acceptance of the offe r herein. c. Consideration i. It is the Appellant's submission, that the payment of consideration was received by the Respondent, through its agent, MTN, and the Appellant received a text stating as follows: "Ye/101 payment of ZMW 7.00 to Zambian Lotto is successful as 2020-03-12. 11:53:03, your new balance is 145 ZMW financial J12 transaction ID #1306762605, thank you for using MTN Mobile Money." ii. It is the Appellant's submission, that it can be logically deduced, that the payment of ZMW 7.00 from the Appellant, clearly, was a loss of monetary value by the Appellant, for the promise of the mega jackpot in the event that the predicted numbers are drawn. d. Intention to Create Legal Relations 1. The Appellant placed reliance on the leading English case of Simpkins v Pays6 and cited with approval by the learned authors of Chitty on Contracts1 on the ·definition of a reasonable person, who stated as follows: "Whether a reasonable person in the position of the parties would have concluded, from the outward manifestations of agreement that the parties intended to be legally bound." ii. It is the Appellant's submission that the running of a lottery business by the Respondent, advertising a mega bonus of monetary value of K4, 099, 900.00 and inviting the public to pay for tickets, leads to the inescapable conclusion, that there was intention on the part of the Respondent to form legal relations. 5.4 In relation to ground 2, it i~ the Appellant's general contention that the lower Court's consideration of the 3rd message w as erroneous. Firstly, it is the Appellant's submission, that the learned Judge was wrong to have regarded the J13 3rd message, to be an integral part of the terms and conditions of the contract. It is his argument that the terms and conditi ons shown at pages 218 to 225 of the Record of Appeal (RoA}, do not provide for the 3rd message as a condition precedent, to the formation of a contract and that with the contract having been formed by the Appellant clicking the submit button, the 3rd message would in any case be too late to be part of the contract. 5.5 Secondly, it is his submission that the Court below was wrong to have referred to the ticket as an offer, since the offer is the form for entering the predictions and in any case, if the 3rd message were to be the ticket/offer it would be impossible to accept as the 3rd message was the last thing a player would receive long after the play and left him with no further action on his part. 5.6 It was his submission that the learned Judge erred, as the Appellant, having taken all the steps in playing, could not be faulted for a system failure, or otherwise on the part of the Respondent and, or its agents. 5.7 In relation to ground 3, the Appellant based its subm ission on the arguments for grounds 1 and 2, and stated that the net result should be that the Appe llant did in fact prove his case against the Respondent, on the balance of probabilities. 6.0 RESPONDENT'S HEADS OF ARGUMENT 6.1 Counsel Munalula tendered his explanation to the Court, and informed the Court, that he had only become aware of the appeal, through a message from Counsel Matende, a week before the same was scheduled to be heard. He further explained, that although he was counsel on record in the lower Court, J14 he had since moved Law Firms, and was unaware of the pending appeal, let alone the date of hearing. He also expla ined that he had attempted to file a consent order to file the Respondent' s Head s of Argument, having obtained instructions from the Respondent, and that he had served an advance copy on the Appellant. 6 .2 In the circumstances before us, we allowed the application, having noted that Counsel had filed a Notice of change of Advocates and gave leave to the Respondent to file its Heads of Argument and to argue the appeal. 6.3 These arguments have been duly noted and were augmented with oral s·ubmissions by Counsel Munalula. 7.0 THE HEARING 7.1 At the hearing, Counsel Chanda Chungu, placed reliance on the heads of argument already on record and by way of augmentation argued that there were three main issues in the appeal before us. He submitted that firstly, there was a va lid contract between the Appellant and the Respondent. Secondly, he addressed the effect of the absence of confirmation of the ticket numbers and thirdly, he submitted on the effect of unchallenged evidence in the trial in the lower Court. 7.2 It was his further submission that based on the elements of contract, a va lid contract was created at the point the Appe llant, th e punter, entered his numbers of choice and made payment to confirm his selection. He referred to page 128 of the RoA. It was his argument, that the confirmation of the J15 contractual agreement, in the form of the thi rd message, was the bone of contention, and which had been misapplied by the lower Court. 7.3 It was Counsel's submission, that the absence of the confirmation message and its consequent liability, rests with the Respondent. He also referred the Court to page 129 of the RoA, in support of his submission, that the Appellant having presented proof of the numbers that he played, was evidence which was not challenged in the lower Court and urged the Court to hold that unchallenged evidence is admissible and placed reliance on the case of Attorney General v Katwushi Kapundula 7 • 7.4 Counsel relied on the decision in the case of K. B. Davis and Co (Zambia) Limited v Andrew Masunu 8 , to support his submission that any lacuna in evidence should be resolved in favor of the party that did not cause the lacuna. 7.5 Counsel Chungu also re lied on the case of Ludecke v Canadian Pacific Airlines Limited 9 , to support the argument that a contract exists, even if the tic ket is absent or irregular. 7.6 In opposing the appeal, Counsel Munalula argued that the failure to receive the third confirmation message, was a clear indication that the Appellant had not entered the draw on the material day. He argued that the messages were transmitted on the MTN platform, via the Unstructured Supplementary Service Data {USSD) code. The Appellant's contention that he was a winner of Jackpot he never entered, was correctly rejected by the lower Court, a holding he urged us to uphold. J 16 7.7 He referred us to paragraph 1.5 of the Appellant's heads of argument, which confirmed that the anticipated third message was not received by the Appellant, although it was not disputed that he attempted to play the game. It was his argument that a contract has severa l segments and cannot be governed in isolation with the rules, that Counsel Chungu had attempted to place on record. 7.8 He dispelled Mr. Chungu's argument that the contract was concluded at the point the Appellant made payment. It was his submission that the Appellant did not satisfy the chain of transaction, which was fundamental to his claim for a w in ning ticket. It was further his argument that as a seasoned player, the Appellant knew the rules of the game and knew there was a toll -free number which he could have called but did not. 7.9 In response, Counsel Chungu, urged us to find that the contract having been comp leted, the Respondent was bound to honor its terms. 8.0 ANALYSIS AND DECISION OF THE COURT 8.1 As we consid er the grounds of appea l, we have taken on board the arguments and submissions of counsel, pertaining to ground 1, in which the Appellant has submitted that the Court below erred in law and fact, when it found that the elements for a contract such as offer, acceptance, consideration and intention to create legal relations and existence of agreed terms were somewhat lacking, contrary to the evidence before the court. J17 8.2 We have had the occasion to review the judgment of the lower Court. It is trite, that for a contract to be valid, it generally needs to meet certain criteria including an offer, acceptance, consideration and legal capacity. 8.3 We have reviewed the grounds of appeal and the arguments presented to this court and believe that this appeal revolves around a single crucial issue: i. Whether the Appellant has demonstrated sufficient evidence to substantiate his claim that he is the winner of the Mega Jackpot No. 1756 drawn on 12 March 2020? 8.4 In answering this question, we refer to paragraph 13.7 to 13.9 of the Judgment of the lower Court, at page 68 of the RoA, which reads as follows: "{13. 7) I shall not belabor the importance of a confirmation message f rom the defendant. I will instead highlight the consequence of not receiving one. [13.8} The evidence on record shows a confirmation message is substantial proof that a draw was duly entered as it contains the vital information of the ticket. It therefore follows that without this message from the defendant, there is no way of proving a customer played the alleged pick numbers, establishing the draw number and ticket number, and the date the draw was entered. {13.9} The consequence can be deduced from the events of the present case. As earlier alluded to, the plaintiff has failed to substantiate his claim J 18 of having played the first ticket and winning the jackpot with the numbers picked herein ... " 8.5 We are guided by the case of Wilson Masauso Zulu v Avondale Housing Project Limited1, in which the Apex Court emphasized, that he who asserts must prove. In view of the same, we have had occasion to analyze the case of Kakoma v State Lotteries Board of Zambia 10 , though being a decision of the High Court, involved the issue of an original lottery ticket, which the Plaintiff did not have, and which was rendered void . The learned judge in the Kakoma case stated as follows: "I hold the view that the original ticket was lodged "within the designated security area at the State Lottery Head Office, Cairo Road, Lusaka. " This was done before the draw to which the ticket related was conducted and was immediately after the defendant accepted the receipt of the money, the tickets and till roll and took custody of the same. It cannot in my view be argued that when an original ticket is lost in the custody of the defendant then it "was not lodged" within the designated security area. In the absence of any evidence to the contrary I hold that the original big three ticket no. 636747 was received by the defendant." - page Jll of the judgment. 8.6 In the Kakoma case, although the Court noted that the Plaintiff's t icket was duly lodged as required, it was found that the plaintiff, having bought his pick-a-lot ticket, subject to the conditions and rules governing pick-a-lot draws, among them being, that his holding of the ticket created no lega l relationship between J19 him and the board. Thus, even if the original ticket was rece ived by the defendant, the plaintiff had failed to establish that he has a claim which he could enforce in court. 8.7 Turning to the appeal before us, we have carefully reviewed the record of appeal and find ourselves constrained by the evidence exhibited by the Appellant. The Appellant, by his witness statement, confirms that he started playing Zambian Lotto from 2017 using the mobile MTN platform. He further confirms that Zambian Lotto places educationa l advertisements daily, of how to play, where to play and how to win. We have also noted the various efforts made by the Appellant to contact the Respondent and MTN as well as engage with ZICTA. 8.8 We have also had occasion to review the terms and conditions of Zambia lotto at pages 128 and 145 of the RoA, being copies of the Terms and Conditions. We have paid close attention to the wording on page 128 of the RoA and which according to Counsel Chungu formed the contract between the Parties. Under the heading 'How to Play on MTN', the rules read as follows: "Firstly have MTN Money account with minimum of Kl Dial * 303# on your MTN Mobile Phone The Lottery Menu will show Select Zambian Lotto Service on the Menu Then confirm age. To enter for the Draw type any six lucky numbers of your choice from 1 to 42 separated by space or you can select the Quick pick option on the Menu J20 (Quick Pick is a service where numbers are selected randomly on the phone by the system). Then select the confirm/approve option which means you have entered for the Draw ..... you will then receive a confirmation message from Mobile Money followed by a message from Zambian Lotto showing: o o o o Draw Number Date Ticket Number Your Number Selection and other necessary ticket information. " (Emphasis is by the Court). 8.9 We have also visited t he Zambia Lotto website at www.lottozambia.com and have had the opportun ity to review the terms and conditions on the webs ite. Of relevance, was t he fol lowing: 9. Lottery Services 9.3. The Ticket is valid only upon its registration on the Company's servers of the Lottery Central System. In case any differences in information between physical stores and the Company's Lottery Central System, data stored in the Lottery Central System shall prevail. 9.8. The Company may declare a Ticket invalid when : • The Company reasonably believes that the person claiming the Prize is not the holder of the relevant Account; • The Ticket has not been issued or sold by the Company; J21 • The Company reasonably believes that information provided by the person claiming the Prize is incomplete or has been altered or tampered with; • The Ticket is defective, in whole or in part. Draw results are stored in the Lottery Central System. The Company will only pay a Prize based on the official results of the relevant Draw, stored in the Lottery Central System. The Company reserves the right to decline any payment against any incorrectly announced number of the Draw. " 8.10 We have also considered Zambia Lotto Procedures, which read as follows: "2. 7. Winning Ticket - a Ticket that contains at least one Line that matches the Winning Numbers and entitles you to the Prize, subject to the conditions of these Rules and the Terms". 8.11 We have also acknowledged the Respondent' s explanation of how the MTN USSD works at page 226 of the RoA, which reads as follows: "In this case, the client paid through Mobile Money, he received an SMS from MTN having the transaction ID, while we didn't receive the payment status fro m MTN side, so it remained unknown. The SMS ticket's data isn't sent to the client (because the payment status was not confirmed as successful) and the problem was that he didn't report it to ZLL Team. Knowing that he is a regular client, and he knows the rules." J22 8.12 We are prompted to recall the case of Khalid Mohammed v The Attorney General 11 in which the Supreme Court observed that: "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 opponents defence does little to entitle him to judgment." (emphasis ours). 8.13 We note the Appellant's evidence at trial, when he was asked by Counsel for the Respondent on whether he had anything to show that he had played the winning numbers, that he claimed to have played, to which the Appellant was unable to provide evidence to support the fact that he keyed in the said numbers. He was only able to show a photocopy of the prediction numbers he claims to have written regarding draw #1756. We have combed the record of proceedings in the lower Court, and cannot find any evidence led by the Appellant, to show that he had a record of his winning numbers and which he had produced before the Court. 8.14 To the contrary, the Record of proceedings in the lower Court clearly shows that the Appellant under cross examination, confirmed that he did not rece ive the third message as was noted at line 10 of page 538 of Volume 2 of the RoA. Further on page 541 of the RoA, the Appellant when asked whether playing under the Zambian Lotto system, he received the last part being the draw number, the date, the ticket number, the number selection and other necessary ticket information, he confirmed that he did not. The submission by Counsel for J23 the Appellant, that unchallenged evidence ought to be accepted as admissible by placing reliance on the case of AG v Katwushi Kapundula 7 is rejected outright. 8.15 We are of th e considered opinion, that the argument by Counsel, of the contract having been completed at the point of payment, has missed the critical element of the terms and conditions of play. A punter, must, as a necessary consequence of his play, be either a holder of a physical ticket, or be in receipt of the third message, confirming his ticket details and number selection, if played on a digital mobile platform, to be considered as a valid entry for that play. A handwritten entry, in a personal notebook, of the punter cannot be sustained as evidence of play. Any other form of evidence, of proof of play, is simply not feasible within the rules of the game. 8.16 Smith and Keenans: English Law 2 with reference to a condition in contract state as follows: "a condition is a vital term which goes to the root of the contract. It is an obligation which goes directly to the substance of the contract or is so essential to its very nature that its non-performance may be considered by the other party as a substantial failure to perform the contract at all." 8.17 We have considered the cited case of Carroll v AN Post National Lottery Company3 , relied on by the Appellant, and note, that other that the definition of what constitutes an offer, in an electronic lottery system, quoted at paragraph 5.3 above, the decision in the Carroll case, does little to aid th e Appellant's case. In the Carroll case, the Plaintiff's playslips were processed with J24 errors by a staff member of the defendant' s company's Lotto agent. One of the playslips, (had it been correctly processed), happened to be the w inning numbers for the draw. In a lengthy Judgment, which examined critical aspects of contract law, and the law of agency and others which are not relevant in casu, it was held that the plaintiff could not recover, as he ought to have been aware of the terms and conditions of play, which rules were endorsed on the back of his ticket. The Court, in that case, also dismissed the pla intiff's claim for damages, finding that the plaintiff failed to prove the causal link between the alleged negligence and the damages claimed. 8.18 We refer to the judgment of the lower Court at page 35 of the RoA, in which the learned Judge noted, that it was the Respondent's evidence at t rial, (Defence Witness 1), that for a bet to be eligible as entered in the draw, it has to be submitted, received and fully acknowledged by the Respondent. It was its evidence that bets placed at the booth, are acknowledged as eligible, through machine printed tickets showing numbers, whereas those played via a mobile platform, such as the MTN platform, are considered eligible, through a ticket ID sent in a confirmation message. The learned Judge also noted that according to the Respondent's system, if a ticket ID is not generated, then the particular ticket is considered not to have entered the draw and a refund may be made to a participant. 8.19 Whilst we have paid close attention to the submissions of the Appellant, and have anxiously considered the elements of offer, acceptance and intention to create legal relations, we are of the considered view, that it is misguided to argue, that the contract was fulfilled, simply upon payment by the Appellant of J25 the consideration value. It is fundamental, that an offer may be made subject to conditions which may be expressly stated or implied in the circumstances. Failure to satisfy such a condition renders the offer incapable of being accepted. In casu, it was an accepted fact, led by the Appellant's own evidence, that he expected to rece ive three messages. It is also not disputed that he only received two. The critical third message, which rendered him eligible for the draw, was missing. In the circumstances, we are of the view that it is moot to argue, that having paid the consideration, absolved the Appel lant of any further conduct on his pa rt. 8.20 We have also noted at page 642 of Vol 2 of the ROA, evidence of Defence Witness 2, who confirmed that the Zambia Lotto System keeps logs of activity. However, the database is not stored in Zambia, as it is an online database, from Azuri server, which comes from another country. It was explained that the logs show the ticket, time played, and time payment was accepted. 8.21 We also find relevance in the case of State Lotteries Board of Zambia v Tembo, 12 to the one before us, on the issue of the system. In that case, the Supreme Court disagreed with the learned trial co mmissioner, w ho disregarded rule 12 (6) of PickALot Draw Rules 1975 which rule provides as follows: "12(6) No prize shall be paid unless the Director is satisfied that the original ticket was lodged within the designated security area at the State Lottery Head Office, Cairo Road, Lusaka, before the draw to which the ticket relates was conducted." J26 8.22 In the cited Tembo case, due to the collector's negligence, the Respondent's ticket was not placed in the appropriate place, and she was not paid the Jackpot. The learned trial commissioner found the rules to be unfair and oppressive, and which he suggested ought to have been amended. He declined to give effect to the rules and entered judgment for the Respondent. 8.23 The learned trial commissioner disregarded this rule, on the basis that a ticket handed in to an employee of the Appellant, could not be said not to have been in the possession of the Appellant. The Supreme Court noted that the rules were not concerned with possession, but with the participating tickets, being physically located in the designated security area. It was emphasized that by the terms of Section 20 (3) of Cap 43 and as a matter of statutory law, the Respondent was bound by the rules. 8.24 The Supreme Court, in arriving at its decision, considered sympathy for the player in the appeal since there was no suggestion of culpable conduct on her part, but the principle, that the particular rule of play being cardinal, was upheld on the wider consideration that the Appellant should not be exposed to the possibility of spurious claims and allowed the appeal. 8.25 We are of the considered view, that this interpretation by the Apex Court, is of relevance in the case before us, to the extent that paragraph 9.3 (quoted at paragraph 8.9 above), of the Terms and Conditions of the Lotto Zambia website read as follows: "The Ticket is valid only upon its registration on the Company's servers of the Lottery Central System. In case any differences in information between J27 physical stores and the Company's Lottery Central System, data stored in the Lottery Central System shall prevail." (emphasis ours) 8.26 In the cited case of The State Lotteries Board of Zambia v Tembo12, the Supreme Court held t hat: "A rule governing the lottery stipulated that prizes would not be paid to holders of tickets which are not already deposited in a designated security area at the time of the draw." 8. 27 In the modern day of instant communications and transactions, mostly on third part y platforms, the challenges are ma ny, an d perhaps novel, not j ust in our jurisdiction. We are of the considered view, t hat such modern methods of transact ion, must be appreciated, with a commonsense approach . It is inconceiva ble t o argue, t hat the con t ract was completed at the stage of payment. We have al ready found above that the th ird message, be ing critical, as proof of play, was an integra l part of the contract documentation, irrespective of the argument that the Appellant had no role t o play in transm itting the third message . He acknowledged that it was a requirement to f ulfill the contract. 8.28 In our research, we have had occasion to reflect on the guidance of the authors, in the book entitled Contract Law in Zambia3 , under the sub-head ing 'instantaneous modes of communication'. Th e learned authors, Sangwani P. Ng'ambi and C. Chungu at page 47, state as follows: J28 " In the case of more modern methods of communication, the picture is not so clear. The important factor seems to be how instantaneous the method is". 8.29 Lord Wilberforce, in a decision of the House of Lords, rendered in the case of Bri nkibon v Stahag St ahl13 , commenting on the legal effect of instantaneous communication, contended that: " ... There may be some error or default at the recipient's end which prevents receipt at the time contemplated and believed in by the sender. The message may have been sent and/or received through machines operated by third persons. And many other variants may occur. No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie." 8.30 What is apparent to us, is that the Appellant admitted that the transaction, the subject of th is appeal, was not complete, as the third confirmation message was still pend ing. This is clear not only from his witness statement and evidence but also by his pleadings in his statement of claim in paragraphs 7 and 10 thereof. 8.31 We note the Respondent's argument that the status of the first bet of the Appe llant was unknown . In addition, our focus rests on the terms and cond itions, which make it clear and categori cal that, in order to have successfully entered a draw, a player would need to have the third confirmation ticket which constitutes a val id ticket . Without this, and without proof of the J29 • entry of the pick numbers entered by the Appellant, it is impossible to resile fro m the decision of the lower Court. 8.32 We have also had occasion to review statutes such as the Pickalot Draw (Amendment) Rules, 19932 which though do not speak directly to this case, lend credence to our finding. Wed raw particular relevance to Section 2 which states: "Ticket Holder" means any person whose particulars match details on a ticket. 11 Section 10 (1) of the Pickalot Draw (Amendment) Rules2 states the fo llowing: 11 Every ticket for a Pickal ot Draw completed in terms of this Part - (a) Shall be clearly written in respect of all the selections entered, the name and address of the purchaser; {d) Shall not be valid for the purpose of claiming any prize unless the original ticket and duplicate ticket bear the same ticket number and serial number and the entry on duplicate copy agrees in all respects, with the entry on the original copy. 11 8.33 It is our considered view that the absence of the third message, essentially means that the Appe llant's draw was incomplete. We can do no better than echo the words of the lower court which stated at page J59, page 64 of the ROA as follows: "I remind the Plaintiff that a decision of the Court is based on the evidence presented by the parties which assists the Court make factual findings. J30 • ' Unfortunately, in this case, the Court has been left to- go on a hunting expedition for evidence which has not been presented. " 8.34 In the circumstances, the Appellant has not advanced sufficient evidence, to prove that the predicted numbers of his first ticket, were the ones he entered into the draw. The Appellant bears the responsibility to support his claim, wh ich, in our opinion, he has not done. The argument by Counsel, that having played and paid, the burden must shift to the Respondent, to disprove the Appellant's allegation, is not tenable in our system of justice. We were not referred to any authority to support this proposition, and one which we reject outright. 8.35 Although much time and attention has been placed in canvassing the basic principles of contract law, we are of the considered view that we do not need to make any pronouncements on the issues of offer, acceptance, consideration and or the intention to create legal relations. The facts in this case simply required the Appellant to hold the third confirmation which is the ticket details, which he simply did not receive. To hold otherwise, would open a flood gate of claims, spurious or otherwise. 8.36 We have no hesitation in holding, that t he contract, so to speak was not consummated or completed, for not having fulfilled the series of transactions required by the punter. It was evident that the Appellant was famil iar with the rules of play and was aware that he was required to receive three messages, the third being the confirmation message with the ticket details and his choice of numbers . In a physical play, a punter would not leave without his ticket. By parity of reasoning, the argument that having paid the sum of K7.00, does not J31 • relieve the Appellant of ensuring that the series of transaction was duly completed, holds weight. 8.37 In the digital world to which we have now migrated, a reasonable user of digital networks, must ensure that he completes a transaction, more especially one, that uses multip le platforms, across different interfaces. An illustration that comes to mind, is the purchase of electricity units, from the utility company ZESCO, using mobile or banking platforms. A reasonable and prudent consumer, would as a matter of logic, ensure that he receives the units, displayed on a ticket, to correspond with his purchase. He will not simply make payment, and then insist that he has completed a contract, and continue to sit in darkness, if for some network or other technical issues, the units are not forthcoming. It is argued, in that scenario, that the contract of purchase, has simply not been concluded. By analogy, the same logic applies in casu. Further, the submissions by the Appellant, to compare the facts of this case, with the principles of a unilateral contract, espoused by the decision in the case of Carlill v Carbolic Smoke Ball Co 14 , or the effect of a missing contract, in the case of Ludecke v Canadian Pacific Airlines Limited 9 , are misplaced in the context of this case. 8.38 Whilst we may only sympathize with the Appellant, the Court is not the correct forum for the regulation of such issues. Before we conclude this Judgment, we note with concern, the lack of recent and or updated legislation and rules to govern and monitor the conduct of betting institutions. We are al ive to the fact that there are currently numerous betting institutions and casinos in our J32 , jurisdiction, which are popular, and which use digital, electronic and or various mobile platforms. We see the immediate need for this industry to be regulated and for safeguards to be put into place for its protection and regulation. 9.0 Conclusion 9.1 We accordingly dismiss this appeal having found no merit in any of the grounds of appeal. 9.2 Although costs normally follow the event, we find that on the novel facts of the case before us, we make no order of costs in th is Court. M. J. SIAVWAPA JUDGE PRESIDENT F. M CHISHIMBA COURT OF APPEALJUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGE J33