Morgan Naik v Amadeus International Limited and Anor (2024/HPC/0426) [2025] ZMHC 64 (1 September 2025)

AMADEUS INTERNATIONAL LIMITED 1st DEFENDANT RAJENDRAKUMAR SOMBHAI PATEL 2 nd DEFENDANT Before Hon. Mr. Justice Bonaventure C Mbewe Marshal Esther Ng'uni Resea:rch Advocate : Mwiche Ntinda- Ndhlovu For the Plaintiff jo, the Defendants In Person Mr. A Sakala, Mr. C Chiluba and Mrs W C Kayope of Messrs. Simeza Sangwa and Associates JUDGMENT Legislation and Other Authorities Referred to: 1. Chitty on Contracts, General Principles, Vol. 1 (Par 2 - 003), 25th Edition, 1986, Sweet & Maxwell; Jl 2. Halsbury's Laws of England Volume 9, 4th Edition reissue, 1998, Butterworths; 3. Smith and Keenan's English Law - ELBS/ Pitman 1990 London atpage 187; 4. H. G Beale's 'Chitty on Contracts', General Principles Volume 1 25th Edition, London, Sweet and Maxwell, 1986; 5. Pollock, F., Pollock's Principles of Contract, 13th ed., Stevens & Sons, 1950. Edited by Sir Percy H. Winfield. Cases referred to: 1. Vincent Mijoni v Zambia Publishing Company Limited SCZ Appeal No 10. 1 986 (S. C) (Unreported); 2. Mwenya and Randee v Kapinga SCZ Judgment No 4 of 1998 (S. C); 3. The Rating Valuation Consortium and D. W. Zyambo and Associates (Suing as a firm) v. Lusaka City Council and Zambia National Tender Board Selected Judgment No. 13 of 2004 (S. CJ; 4. Base Chemicals Zambia Limited and Mazzonites Limited v Zambia Air Force and the Attorney General SCZ Judgment No 9 of 2011 (S. C); 5. Percy Trentham Limited v Archical Lux.fer Limited (1993) 1 Lloyd's Reports 25 (C. A); 6. Humphrey Chela and Getrude Chela v Parmalat Zambia Limited SCZ Appeal No 48/ 2008; 7. Finance Bank Zambia Limited, Rajan Mathani v Simataa Simataa SCZ Selected Judgment No 21 of 2017; 8. Michael Kunda v Zambia Lotto Limited Appeal No 95 of 2004; J2 9. Zambia Telecommunication Company Limited v Joshua MukawailaAppeal No 131 of2021; 10. Jones v Daniel (1894) 2 ChD 332; 11. Galaunia Farms Limited v National Milling Company Limited and Another SCZ 1 of 2004 (S. CJ; 12. Gondwe v Attorney General Appeal 34 of 2016 (S. C); 13. Dunlop v Selfridge Limited 1915 AC 847; 14. Yingstar Investment Company Limited v Netur Plex Investment Limited Appeal No 55/ 2024; 15. George Lewis v ZIMCO Limited (1992J S. J (S. CJ; 16. Hyde v Wrench (1840) 3 Beau 334; 17. Currie v Misa (1875) LR 10 Ex 15.; 1.0 INTRODUCTION 1.1 By a Writ dated 13th June 2024 the Plaintiffs claims are for: (i) A lump sum payment of the mutually agreed settlement of USD 1, 300, 000.00 net of any applicable taxes and any bank charges; (ii) An order that all criminal and civil matters pending between the parties herein were mutually agreed to have been fully settled, by virtue of the settlement agreement of 14th October 2022, and as such an order to compel the said parties to discontinue all such pending matters against each other, which have since that date been going, in breach of the said settlement agreement; (iii) Interest on claim (i) J3 (iv) Costs of and incidental to these proceedings and; (v) Any other relief the Court may deem fit; 2.0 PLEADINGS Plaintiff's Statement of Claim 2.1 In his Statement of Claim of 13th, June 2024, it is provided that the Plaintiff is a Zambian national, the 1st Defendant is a limited company incorporated under the provisions of the Laws of Zambia, and the 2 nd Defendant is a Zambian National, who 1s shareholder and director of the 1st Defendant. 2.2 The Plaintiff provides that the parties herein have prior been involved in civil and criminal matters against each other. The Plaintiff also states that such matters came to their full and final settlement or conclusion on the 14th of October 2022. 2.3 The Plaintiff, avers that the said matters arose from preliminary findings made by the Patents and Companies Registration Agency (PACRA), as per its letter to the Plaintiff dated 02nd March 2017. The said letter provided that there was reasonable cause to suspect that the Plaintiffs alleged removal as director and shareholder in the 1st Defendant J4 Company was at the instigation of the 2 nd Defendant and may have been fraudulent and for his own personal gain. 2.4 The Plaintiff further provides, through his pleadings, that in the month of September 2022, the Defendants through their advocates, also now on record, Messrs. Simeza Sangwa and Associates eventually offered the Plaintiff through his former co-advocates Messrs. Mwenye and Mwitwa Advocates; a sum of USD 1, 300, 000.00, net of any applicable taxes and any bank charges, for the sole purpose of a full and final settlement of all civil and criminal matters that were and are still pending in the Court of Appeal, High Court and Subordinate Court of Zambia. According to the Plaintiff, the Defendants had initially offered USD 1, 200, 000.00 through the Plaintiff's other co-advocates Messrs. Mutemwa Chambers. 2.5 It is provided in the pleadings that the Plaintiff's former co - advocates Messrs. Mwenye and Mwitwa Advocates communicated the Defendant's said final offer to the Plaintiff on the 07th of October 2022, which the Plaintiff accepted. 2.6 According to the pleadings, by a letter dated 13th October 2022, the Plaintiffs former co-advocates Messrs. Mwenye and Mwitwa Advocates communicated the Plaintiff's JS unequivocal acceptance of the Defendant's final offer for settlement to the Defendants' advocates who acknowledged receipt of the said letter on the 14th of October 2022. 2. 7 The Plaintiff avers that the letter of 13th October 2022, did not obtain any response and on the 08th of November 2022, the Plaintiffs former advocates wrote another letter which at this time obtained a response on the 21 st of November 2022, in which the Defendants through their advocates provided that their client saw no benefit pursuing an amicable settlement of the matters and would in the premises leave the matters to be determined by the Court. 2.8 According to the pleadings through the aforesaid letter of 21 st November 2022, in which the Defendants had changed their minds as regards having mutually fully and finally settled all disputes between the parties herein, the parties had already prior mutually concluded a binding and enforceable contract for the Defendants to pay the Plaintiff a settlement amount of USO 1, 300, 000.00, net of any applicable taxes and bank charges. The said amount was to represent full and final settlement of all criminal and civil matters between the parties that were still pending in the Court of Appeal, High Court and Subordinate Court of Zambia. J6 2.9 The Plaintiff contends that the Defendant's shift or change of its mind constituted breach of a binding and enforceable agreement, and the same is of no legal effect 2.10 The Plaintiff therefore repeats his claims against the Defendant as endorsed on the writ. Defendant's Defence 2.11 In the Defendants' Defence, filed on the 04th of July 2024, the Defendant provides that there have been ongoing criminal and civil matters at the instance of the Plaintiff which matters have all been unsuccessful. 2.12 The Defendants provide that that contrary to the Plaintiff's contention, there was no full and final settlement of the said matters and such preliminary findings are in the Plaintiff's peculiar knowledge. 2.13 The Defendants state that in the 111011th of September 2022, they did through their advocates, Messrs. Simeza Sangwa and Associates eventually offer the Plaintiff USD 1, 300, 000.00, net of any applicable taxes and any bank charges, for the sole purpose of a full and final settlement of all civil and criminal matters that were and are still pending in the Court of Appeal, High Court and Subordinate Court of Zambia. This was done through the Plaintiffs former co- advocates Messrs. Mwenye and Mwitwa Advocates following a sum of USD 1, 200, 000.00 having been in initially offered to the Plaintiff J7 through his other co - advocates Messrs. Mutemwa Chambers. 2.14 The Defendants further aver, that no mutually binding and enforceable settlement agreement or contract was ever entered between themselves and the Plaintiff and that the Plaintiffs proposed terms of settlement were never accepted by the Defendants. 2.15 The Defendants, further provide that the Plaintiff is not entitled to any reliefs sought in his pleadings. Plaintiff's Reply to Defendant's Defence 2.16 In the Plaintiffs' Reply to the Defendants Defence of 18th September 2024, the Plaintiffs' averments are similar to what is contained in their statement of claim save for the following facts. 2.17 The Plaintiff maintains that there was full and final global settlement of all matters between the parties via the letters dated 07th October 2022, 18th October 2022, and 08th November 2022. 2.18 The Plaintiff concludes his submission by denying having proposed any terms to the settlement agreement but only requested the Defendant to consider the time frame of signing the formal agreement or contract and that settlement of the JB amount was not to be left open ended, hence the proposed date to that effect. 3.0 TRIAL Plaintiffs' Case 3.1 The Plaintiff fielded one witness the Plaintiff who testified on behalf of himself in the matter. 3.2 In his statement of 29th November 2024, the Plaintiff Mr. Morgan Naik, who is a farmer and former shareholder and director in the 1st Defendant testified that he and the Defendants herein have been involved in civil; and criminal matters against each other, which arose from or are attributable to the preliminary findings made by the Patents and Companies Registration Agency PACRA as per its letter to him dated 02nd March 2017. 3.3 According to the witness, the said findings made by PACRA were to the effect that there was reasonable cause to suspect that his alleged removal as one of the four founding directors or shareholders in the 1st Defendant company at the instigation of the 2 nd Defendant and for his own gain may have been fraudulent. 3 .4 The witness provided that 1n September 2022, the Defendants called for a meeting to be held between J9 themselves and the Plaintiff at the Defendants' advocates premises. 3.5 According to the witness, it was mutually agreed at the said meeting that an amicable full and final settlement of all civil and criminal matters involving the Plaintiff and Defendants herein, which were at the material time still pending in various Courts of law, be expeditiously negotiated and concluded with the net effect of a monetary settlement in the Plaintiffs favour. 3.6 The witness further provides, that as a consequence of the aforesaid meeting the Defendants, through their advocates, eventually made a final and unequivocal offer to the Plaintiff whose terms were to pay him the sum of USD 1, 300, 000.00, net of any applicable taxes and any bank charges, for the sole purpose of full and final settlement of all matters pending in various Courts of law. 3. 7 The witness provided that the aforesaid terms of the final, unequivocal and unconditional offer by the Defendants were accepted by the Plaintiff pending conclusion of the signing of the formal settlement agreement or contract and payment. According to the witness, the same was accepted via letter dated 13th October 2022, received by the Defendant's advocates on 14th October 2022, thereby constituting a concluded, binding and enforceable settlement agreement or contract from that point in time onwards. JlO 3.8 The witness, provides that it is clear from the contents of the last paragraph of the Plaintiffs letter dated 07th October 2022, that the Plaintiff instructed his former co - advocates Messrs. Mwenye and Mwitwa Advocates, an irrevocable undertaking also extended to the Defendants that if the settlement amount was paid to the Plaintiff before the criminal matter against the 2 nd Defendant was formally withdrawn by the State at his request, he would not change his mind or position in relation to the settlement or settlement amount. 3.9 The witness testified that in the last four paragraphs of the aforesaid letter of 13th October 2022, it is clear that he merely sought the indulgence advice and consideration of the Defendants to the effect that any formal settlement agreement to be signed by the parties herein and payment of the settlement sum must be concluded on or before 21 st October 2022, at the very latest as opposed to leaving the time frame of the same open ended. He further stated that this in itself did not amount to any conditionality or proposed terms of settlement. 3.10 According to the witness, his letter of 13th October 2022, did not receive any response from the Defendants which led to the Plaintiff's advocates follow up letter of 08th November 2022, which was to the effect that the Plaintiff was still amenable to resolving all outstanding matters between the parties on the terms set out in the initial letter of 13th October 2022, which reconfirms that the Plaintiff did not propose any new terms nor set any conditions to his acceptance. Jll 3.11 The witness testified that the letter of 08th November 2022, prompted a response from the Defendants advocates dated 21st November 2022, at page 6 of bundle to the effect that the Defendants had changed their minds fives weeks later, because they had seen no benefit in pursuing an amicable settlement of the matter and would in the premises leave the matter to be determined by the Court. 3.12 The witness contends that the said letter from the Defendant's advocates of 21st November 2022 constituted a breach of the parties' concluded agreement and is of no legal consequence or effect. 3.13 In cross - examination, the Plaintiff witness testified that he and the Defendants have had different civil and criminal matters against each other since 2017, emanating from the contents of the letter dated 02nd March 201 7, from the Patents and Companies Registration Agency which letter was not before Court. 3.14 The witness also stated in cross examination, that he had no specific proof of the meeting alleged to have been had between himself and the Defendants at the Defendant's premises but did however state that the consequence of the particular meeting was what is currently in contention between the parties. J12 3.15 The Plaintiff witness in cross examination also, reiterated that there were initially discussions between the Defendants advocates and his former co-advocates Messrs. Mutemwa Chambers and Mwenye and Mwitwa Advocates. He also acknowledged that there was an initial proposal to resolve all matters for USDS, 000, 000.00, and following this, the Defendants' advocates rejected the proposal and counter proposed USDl, 200,000.00, which eventually ended in the USD 1, 300, 000. 00 offer whose terms are before Court. 3.16 The Plaintiff witness also stated that in his letter of 13th October 2022, he did undertake that if the settlement amount was paid to him before the criminal matter against the 2 nd Defendant was formally withdrawn by the State at his request, he would not change his mind or position in relation to the settlement or settlement amount. He acknowledged that the same was at his request, but was not a condition for the settlement but a mere request. 3.17 The witness also stated that the letters from his former advocates of 13th October 2022, and 08th November 2022, were written without persuasion from him but as per his instructions and added extra terms without his instruction. He further clarified that his instructions were contained in his letter to his former co - advocates of 07th October 2022. 3.18 The witness also stated that the initial proposal by the Defendants had no time frame and that in paragraph 5 of his reply in pleadings he proposed a time frame be set for the J13 agreement between the parties to be formalized though no specific date was provided. 3. 19 The witness indicated that the terms of the settlement as set out by the Defendants had no time frame and also testified that proof of the formalized settlement was contained in the letter of 13th October 2024. 3 .20 The witness also testified that the use of the words "proposed settlement", in the letter of 08th November 2022, was in the context of formalization of the settlement in a formal document which remains pending to date. 3.21 The Plaintiff did however aclmowledge that according to the letter of 13th October 2022, the proposed time frame for what had to be signed had elapsed and following this t h e Defendant's former co - advocates asked the Defendant to state the position on the proposed s ettlem en t . 3 .22 The Plaintiff witness also testified that the letter of 21 st November 2022, did indicate that the Defendants were no longer interested in settlement though there was already a contract between the parties. 3.23 The witness noted the Causes CAZ/08/309/2023 and CAZ/08/ 129/2023, initiated by himself and against the 1st Defendant herein acknowledging that the same were active and dated beyond his letter of 13th October 2023. He also stated that he did not personally request for the criminal J14 matter against the 2nd Defendant to be withdrawn as the latter was discharged. 3.24 In re - examination, the witness reiterated that the letter dated 13th October 2022, bore a mere request and not new terms to the parties' settlement. Defendant's Case 3.25 The Defendants called two witnesses 3.26 The first witness on behalf of the Defendant was Rajendrakumar Sombhai Patel of Lusaka, who 1s a shareholder and director in the 1st Defendant company, as well as the 2 nd Defendant in the matter. 3.27 He testified that he and the Plaintiff have been involved in numerous civil litigations before the Courts of law over the years, and that they have also had criminal matters on issues that have also been subject of civil litigation. 3.28 The witness testified through his statement, that sometime in 2021, the Plaintiff through his then advocates Mutemwa Chambers proposed an amicable settlement of the matters between he and the Defendants. 3.29 According to the witness the proposal was not pursued for various reasons. Later in August 2022, the Plaintiff's advocates reached out to the Plaintiff with an offer to settle JlS the pending matters amicably and the Plaintiffs advocates offered USDl, 300, 000.00, which the Plaintiff rejected and instead counter-offered the sum ofUSD5, 000, 000.00, which the witness rejected stating the same was unreasonable. 3.30 According to the witness, the proposed terms of settlement were that the Plaintiff would discontinue the criminal proceedings pending against the 2 nd Defendant in the Subordinate Court and that he would further withdraw the caveats registered against Farms 1872, 1873 and 1088 belonging to the 1st Defendant and in consideration thereof the Plaintiff would receive a sum of USDl, 300,000.00 3.31 The witness testified that, following rejection of the said offer, he continued to appear before the subordinate Court at Lusaka and also the matter relating to the removal of the caveats placed against the 1st Defendant's farms along with several other matters continued before the Courts of law. 3.32 According to the witness, at the time discussions were on going, the Plaintiff was on stand leading his evidence before the Subordinate Court and proceeded with his testimony after discussions failed on the 19th of March 2024, when he: the 2 nd Defendant was discharged by the Court. 3.33 The witness testified that at no time did the Plaintiff withdraw the criminal matter as should have been the case under the proposed settlement. He also stated that he did not see value in engaging in any further negotiations with the Plaintiff after J16 the Plaintiff demanded USDS, 000, 000.00 through his then advocate Mr. Mutemwa SC. 3.34 The witness, stated that by the time the letter from the Plaintiffs former advocates was received by his advocates, he had already informed his advocates that he was no longer interested in any further discussions with the Plaintiff and he continued to be prosecuted before the Courts law as the Plaintiff continued to oppose the removal of the caveats registered against Farms 1872, 1873 and 1088, Kabwe. 3.35 The Plaintiff provides that he had not engaged in any further negotiations with the Plaintiff either by himself or his advocates in the matter 3 .36 In cross - examination, the witness confirmed that sometime in 2021, the Plaintiff did through his then Advocates Mutemwa Chambers propose an amicable settlement of all the matters between himself and the Defendants and the proposal was not pursued for various reasons. 3.37 The witness was not re - examined. 3.38 The second witness on behalf of the Defendant was Robert Mbonani Simeza, a Legal Practitioner practicing under the name and style Simeza Sangwa and Associates. J17 3.39 He testified that he has known the 2 nd Defendant and his family since 1995/95 and he has over the years represented the 2 nd Defendant, his siblings and their business interests. 3.40 According to the witness: the 2 nd Defendant has been engaged in litigation with the Plaintiff since about 1997 and he has represented the 2nd Defendant throughout the said period except at some point when he was represented by Claydon Hakasenke and Company. 3.41 He also stated the litigation spanning over the years has largely been at the instance of the Plaintiff herein and his company Rana Marketing Limited, which company was later wound up by the High Court for failing to settle debts accrued from orders for costs made against the company. 3.42 The witness testified that the difference between the Plaintiff and 2 nd Defendant also triggered criminal complaints being pursued against each other and over the years the 2 nd Defendant's siblings have been concerned about the endless litigation between the parties which took a toll on the 2 nd Defendants health and even resulted in a heart attack. 3.43 According to the witness, Maheshkumar Sombhai Patel consequently requested that his advocates including the witness consider finding a speedy solution to the matters between the Plaintiff and 2 nd Defendant in light of the latter's health having been affected as well as the 1st Defendants J18 business being adversely affected via ex - parte orders for appointments of receivers being obtained against it. 3.44 The witness testified that in or about 2021, the Plaintiff through his then advocates Mutemwa Chambers, wrote to the Defendants proposing an amicable settlement of all matters between the parties by payment of monetary compensation which was rejected. 3.45 The witness testified that the Defendants did not see the basis for the Plaintiff demanding monetary compensation when his claims had been subject of litigation before the Courts of law and the Courts of law dismissed all of the farmer's claims against the Defendants. 3.46 The witness also testified that following the rejection of offer to settle the matter, the parties continued with their matters before the Courts of law and the Plaintiff in addition lodged a criminal complaint against the 2nd Defendant. 3.47 Consequently and according to the witness, he called the Plaintiff and inquired whether he would consider a proposal for an amicable settlement of all differences with the Defendants. The witness then invited the Plaintiff for a meeting and insisted the Plaintiff be accompanied by his advocate for the said meeting. It was at this point the Plaintiff requested to see the witness alone without his lawyers and the witness rejected the same. J19 3.48 The witness testified that eventually a meeting was scheduled at which the Plaintiff attended with his then advocate Mr. Mutemwa S. C, and during the meeting, the witness made a proposal for settlement of all matters between the parties at USDl, 300,000.00, whose terms were that the Plaintiff would withdraw criminal charges against the 2nd Defendant and terminate the ongoing prosecution before the Subordinate Court. Further, that the Plaintiff would remove the caveats placed against Farms 1872, 1873 and 1088, Kabwe, and the parties would discontinue all matters pending before the Courts of Law including the various taxation proceedings against the Plaintiff. Further, that the 2 nd Defendant would equally discontinue the criminal complaint he had lodged against the Plaintiff with the Director of Public Prosecution. 3.49 The witness stated that the Plaintiff rejected the proposed offer and instead demanded the sum of USD 5, 000, 000.00 and his lawyer at the close of the meeting informed the witness that he would persuade the Plaintiff to reconsider. The witness stated that he did phone the Plaintiffs advocate Mr. Muternwa S. C a few times to follow up on whether he had persuaded his client yet the responses remained the same. 3.50 The witness stated after the Plaintiff rejected the USD 1, 300, 000.00 offer and made a counter offer of USDS, 000, 000.00. The said USD 1, 300, 000.00 offer lapsed and the parties continued with litigation before the Courts of law. J20 3.51 The witness testified that he at one point received a phone call from Mr. Mutemwa S. C, who informed him that he had been consulted by the Plaintiff as regards the matter and would revert in due course and it was at this point the witness informed his client the 2 nd Defendant that discussions had failed because the Plaintiff did not accept the offer of USO 1, 300, 000.00 3.52 The witness testified that on the 14th of October 2022, he received a letter from Mwenye and Mwitwa Advocates, stating the Plaintiff had accepted the offer of USDl, 300, 000.00 which he had earlier rejected, and he thereafter had discussions with counsel Eddy Mwitwa of the same firm. The witness informed Mr. Mwitwa of his client, the 2nd Defendants position of being uninterested in pursuing settlement as the prosecution and other cases had continued before the Courts of law. 3 .53 The witness also provided that the 2 nd Defendant did between October 2022 and 10th May 2024, continue to appear in Court in the criminal matter until the 10th of May 2024 when he was discharged. 3.54 Additionally, the witness testified that since 13th October 2022, all civil cases between the Plaintiff and Defendants continued to be prosecuted as before. The matter relating to the removal of caveats continued until 15th August 2024, when the appeal of the Plaintiff went before the Court of Appeal and a final decision rendered on 22nd August 2024. J21 3.55 The witness reiterated that there was no agreement reached or entered between the parties herein to the best of his knowledge 3.56 In cross examination, the witness provided that the only evidence he brought to prove the fact that the 2 nd Defendant had prior suffered a heart attack as well as that the Plaintiff had obtained ex parle orders against the Defendant was his oral testimony. 3.57 The witness also stated in cross examination that the letter of 13th October 2022, does not contain all the ingredients of a valid binding subsisting and enforceable agreement or contract between the parties herein. 3 .58 The witness also testified that hi statement of claim and the said letter were contradictory as it was indicated within pleadings that his offer was for USDl, 200, 000.00 whilst the letter referred to USDl, 300, 000.00. 3.59 The witness, when queried, denied the contents of 13th October 2022, having communicated a mere request of the Defendant and further testified that the letter of 08th November 2022, of the Defendants' advocates was a follow up to the Plaintiff's earlier letter of 13th October 2022, which is the counter offer. 3.60 The witness clarified, in his cross-examination, that the Plaintiff did make a counter offer for USDS, 000, 000.00 to J22 the Defendants through Mr. Mutemwa Mutemwa of Mutemwa Chambers in a meeting he attended with both the Plaintiff and his counsel. He further testified that he had had follow up meetings with Mr. Mutemwa and the said position never changed, though to his surprise weeks later he received a letter form Mwenye Mwitwa advocates long after the initial off er had lapsed. 3.61 The witness further clarified that there was never an offer made by the Defendants to Mwenye and Mwitwa Advocates, as the off er was made to the Plain tiff in the presence of Mr. Mutemwa Mutemwa State Counsel, at the Defendants' advocates premises in presence of the witness. According to the witness, at this time is when the USO 1, 200, 000.00 was discussed, whose reaction is confirmed by the letter from Mwenye and Mwitwa Advocates of 08th November 2022, which is that that the Plaintiff requested USDS,000 0000.00 and the same remained the position maintained for several weeks as maintained in his meetings and telephone discussions with Mr. Mutemwa. According to the witness: it is at that point he informed his client that the agreement could not be reached. The witness further stated that he was never aware of Messrs. Mwenye and Mwitwa and when he received a letter from the firm making an off er of USO 1, 200, 000.00 it took him by surprise as the same were not initially part of the discussion the discussion J23 3.62 The Plaintiff further testified that the letter of 21st November 2022, communicates the Defendants rejection of the counter offer from the Plaintiffs advocates 3.63 The witness was not re - examined. 4.0 SUBMISSIONS 4.1 The averments in the parties submissions are similar to what is contained in their evidence and pleadings save for the fallowing facts: Plain tiff's Submissions 4.2 In the Plaintiffs' submissions of 17th March 2025, the Plaintiff provides that he and the 2nd Defendant were shareholders and directors in the 1st Defendant company and have been involved in civil and criminal litigation against each other arising from the preliminary findings made by the Patents and Companies Registration Agency (PACRA) as per their letter to the Plaintiff of 02nd March 2017, in which PACRA provided that there was reasonable cause to suspect that the Plaintiffs removal as director in the 1st Defendant at the instigation of the 2 nd Defendant may have been fraudulent. 4.3 The Plaintiff avers through his submissions that sometime in the third week of September 2022, the 2nd Defendant on behalf of both Defendants, called for a meeting to be held at his advocates premises, the Plaintiff provides that a prior J24 meeting was held between the Plaintiff and Mr. Robert Mbonani Simeza (the Defendants 2 nd witness) of Messrs. Simeza Sangwa and Associates. 4.4 The Plaintiff provides that it was mutually agreed, at the said meeting, that an amicable full and final settlement of all civil and criminal matters involving the Plaintiff and Defendants be reached with the net effect of monetary settlement in the Plaintiffs favour. 4.5 The Plaintiff further submits that as a consequence of the said meeting, the Defendants, upon successful conclusion of all negotiations between the parties, made a final offer to the Plaintiff through his former co - advocates Messrs. Mwenye and Mwitwa whose terms were for the Defendants to pay the Plaintiff the sum of USDl 300, 000.00 net of any applicable taxes and bank charges for the sole purpose of full and final settlement of all civil and criminal matters that were at the material time pending before the Courts of Zambia. The Plaintiff avers that this was opposed to the Defendants initial offer of USDl, 200, 000.00 4.6 The Plaintiff submits that the aforesaid terms were accepted without any purported rejection, modification, alteration or introduction of new terms pending the signing of a formal settlement agreement/ contract and payment. 4.7 According to the Plaintiff, the law governing contracts is to the effect that it must contain the following key ingredients: J25 1. 11 . Unequivocal offer Unequivocal acceptance 111 . Meeting of minds or mutual assent (consensus ad idem) 1v. Consideration v. v1. Intention of the parties to enter into a legal relationship Parties of full age and with capacity 4.8 Citing a plethora of authorities, including that of Chitty on Contracts, General Principles, Vol. 1 (Par 2 - 003), 25th Edition 1986, Sweet & Maxwell p620; Halsbury's Laws of England, 4 th Edition, Volume 9 at par 740; Vincent Mijoni v Zambia Publishing Company Limited (.l); Mwenya and Randee v Kapinga (2); The Rating Valuation Consortium, DW Zyambo and Advocates (Suing as a Firm) v The Lusaka City Council, Zambia National Tender Board (3); Base Chemicals Zambia Limited and Mazzonites Limited v Zambia Air Force and the Attorney General (4); Percy Trentham Limited v Archical Luxfer ·Limited (5), the Plaintiff submits that the letter dated 13th October 2022, contains all of the above requisite ingredients, and as such by virtue of the said letter, a valid binding, subsisting and enforceable agreement or contract had already been constituted on 14th October 2022. 4.9 The Plaintiff further submits that the letter of response from the Defendants advocates dated 21 st November 2022, demonstrates that the Defendants' purported change of mind was made 38 days following communication of the J26 Defendants unequivocal acceptance of their offer which had been received on the 14th of October 2022, and the same was of no legal consequence. 4.10 The Plaintiff submits that the Defendants' claim, through their pleadings, that their change of minds was on grounds that the Plaintiff had purportedly proposed different terms which were never accepted by them, is a direct contradiction to the letter of 21 st November 2022, to the effect that the change of minds was communicated that the Plaintiff no longer saw a benefit in pursuing an amicable settlement of the matter. The Plaintiff provides that such reason, as per the pleadings, is an afterthought. 4.11 The Plaintiff also contended in submission, that the final two paragraphs of the letter of 13th October 2022, clearly demonstrates that the Plaintiff had requested that there should be no further proceedings in any of the pending Court matters leading to the signing of the settlement agreement and as such advice on the next steps was sought from the Defendants advocates by the Plaintiffs former co - advocates on his behalf. The Plaintiff, reiterating that any settlement agreement be signed on or before 21 st October 2022, at the very latest amounted to a request in that he sought indulgence from the Defendants to consider such request and the same did not vary or vitiate the Defendant's offer in general. J27 4.12 The Plaintiff in this vain cited The Rating Valuation Consortium, DW Zyambo and Advocates (Suing as a Firm) v The Lusaka City Council, Zambia National Tender Board (3), wherein the Court held: "Looking at the document 113 - 114 again it is possible to construe this letter as amounting to acceptance and especially connecting that letter to the subsequent conduct of the respondent, it has been argued by the respondent that this document contained new terms. However, applying the principles already referred to in Chitty on Contract (21) we hold the view that the mention of five percent (5%) contract price amounted to seeking indulgence from the Respondents. The Appellants were asking for an indulgence form the Respondents to consider paying them in advance the five per cent (5%). In our view, that request did not vitiate the offer in general. We are fortified in taking this view, especially looking at the language in the letter dated 9 th February 2001. In paragraph (1), we quote, "we refer to your letter of engagement dated 2 nd February 2001 and confirm our acceptance of the terms I conditions as stipulated .. " In paragraph (2) the Appellants are saying "We request that the contract in our engagement can be drawn in the name of the incorporated company" and in paragraph (3), the Appellants are saying that, they J28 are prepared o be bound by the terms / conditions and that "we will commence the main valuation exercise and the compilation of data/ calculation on theft.at rate assignment by 15th February 2001." Even the last condition at page 2 of that letter, which talks about giving incentives to the Respondents' workers, is not putting an obligation on the respondents but rather explaining to the Respondents how the Appellants intended to carry out the works dutifully. In our view these terms cannot be said to vary or vitiate the terms of offer by the Respondents and as such did not amount to a counter offer. However, it is common ground that the letter of 9 th February 2001 at page 113 was authored by the 2 nd Appellant and it is common ground that the 1st Appellant was non - existent at that time and as such not capable of entering into any legally binding contract. The 2 nd Appellant could not have acted as an agent for a non-existent principal. We also note that a counter offer should be distinguished form an inquiry, request or suggestion, which does not in itself proffer new terms but merely seeks further elucidation of terms of the offer - Stevenson v McClean (10). Therefore, the view we take is that the learned trial Judge was on firm ground when he held that the two fundamental ingredients of a legally binding J29 con tract were not there in this arrangement and as such there was no legally binding agreement." 4.13 The Plaintiff maintains in his submissions that he was not offered a sum ofUSDl, 300, 000.00 and rejected the same by counter offering USDS, 000, 000.00, as he immediately accepted the offer of USD 1, 300, 000.00 by the Defendants. He provided that the Defendants via their witnesses could not provide proof of such assertions. 4.14 Citing the cases of Humphrey Chela and Getrude Chela v Parmalat Zambia Limited (6), and Finance Bank Zambia Limited, Rajan Mathani v Simataa Simataa (7), inter alia, the Plaintiff submits that this Court should preserve the value and sanctity of the contract and disallow the Defendants from resiling from the valid binding and subsisting contract. 4.15 The Plaintiff in submission also quotes Smith and Keenan's English Law - ELBS / Pitman 1990 London at page 187, which provides "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 (.:Onsidered by the other party as a substantial failure to perform the contract at all." J30 4.16 The Plaintiff contends that the Defendant's obligation to pay him the settlement sum goes to the root of the agreement / contract of 14th October 2022, and such its non-performance amounts to a substantial failure to perform the contract. 4.17 The Plaintiff argues that the documents within the Defendants bundle of documents came into existence long after a valid, binding, subsisting and enforceable settlement agreement or contract had already been constituted between the parties on 14th October 2022. 4.18 The Plaintiff concludes his submissions providing that the Defendants have completely failed to prove any of the allegations contained in their Defence and prays for the reliefs sough in the writ of summons with costs Defendant's Submissions 4.19 In the Defendants' submissions of 17th April 2025, the Defendants maintain that the Plaintiff did not conclude a mutually binding and enforceable contract with the Plaintiff. 4.20 Citing the authorities of Halsbury's Laws of England Volume 9, 4th Edition reissue, 1998, Butterworths, Michael Kunda v Zambia Lotto Limited (8), and Zambia Telecommunication Company Limited v Joshua Mukawaila (9), the Defendants provide that there was no valid contact in the absence of an offer and acceptance accompanied by consideration. J31 4.21 The Defendants submit that the letter of 13th October 2022 came after the offer from the Plaintiff had lapsed as the Plaintiff did not accept the offer of the defendants of USDl, 300, 000.00 but insisted on the sum of the USDS, 000, 000.00. 4.22 According to the Defendants, sometime in September 2022, the Defendants offered him the sum of USDl, 3000, 000.00 as a settlement amount which was then rejected by his advocate Mr. Mutemwa S. C, and the Plaintiff counter offered USDS, 000, 000.00, at which time the Defendants offer lapsed and ceased to exist. 4.23 The Defendants further submit that even where the Plaintiffs letter dated 13th October 2022, constituted acceptance. The purported acceptance contrasted the terms proposed by the Defendants in their offer to the Plaintiff, and the same introduced additional terms of settlement. 4.24 According to the Defendants' submissions the letter dated 13th October 2022, constituted a counter offer because the Plaintiffs advocates demanded that a settlement agreement be signed between the parties and payment of the settlement sum be made on or before 21 st October 2022. Further, that the Plaintiff would only withdraw the criminal matter against the 2 nd Defendant if the settlement was paid on or before the said date. The Defendants maintain that these terms or conditions were never discussed or agreed upon with the 2nd Defendant. J32 4.25 The Defendants are fortified in such arguments citing the authority of Jones v Daniel (10), which held: "A counteroffer may come upon a scene not bearing its badge on its sleeve but dressed as an acceptance. In principle to be effective an acceptance must accept all the terms contained in the offer. In practice however, many so-called acceptances while purporting to accept also attempt to introduce new terms, such an acceptance is in fact a counterclaim." 4.26 The Defendants citing the cases of Galaunia Farms Limited v National Milling Company Limited and Another (11), and Gondwe v Attorney General (12), provide that the specified mode of acceptance that the settlement agreement needed to be signed and the sum paid on or before 2 1st October 2022, was never discussed and agreed with the Defendants. The Defendant contends in this vain that no binding agreement or contract was ever reached by the parties. 4.27 The Defendant further argues that the Plaintiff's counter offer as in the letter dated 13th October 2022, required that the settlement agreement be signed and the sum settled by 21 st October 2022, which eventually lapsed. 4.28 The Defendant citing the cases of Dunlop v Selfridge Limited (13), and Yingstar Investment Company Limited J33 v Netur Plex Investment Limited ( 14), provides that the Plaintiff, in return for withdrawing pending cases, was to be given monetary consideration in a bid to resolve all legal disputes between the parties and in this vain consideration did not pass between the parties. For there to be a valid and enforceable agreement between them. 4.29 The Defendant contends that the absence of consideration is evidence that the parties never intended to create legal relations. 4.30 The Defendants maintain that there was no enforceable agreement reached between the Plaintiff and Defendants, and the Plaintiff is therefore not entitled to any payment from the Defendants and pray that the Plaintiffs case fails with costs to the Defendants. 5.0 ANALYSIS AND DECISION 5.1 I have carefully considered the pleadings in this case as well as the Witness Statements admitted in evidence. I have also analysed the evidence from cross-examination of the parties and finally, perused the submissions filed in support of the case. I find that I have the jurisdiction to determine this matter. Undisputed Facts J34 5.2 Having considered the evidence herein, I find the following to be common cause: that the parties herein either by themselves or through their advocates did engage in various modes of communication including meetings and letters with intent of arriving at an agreement that would settle the issues between them. In September 2022, the Defendants offered the Plaintiff the sum of USDl, 3000, 000.00 as a settlement amount which was then rejected by his advocate Mr. Mutemwa S. C. The Plaintiff counter offered USDS, 000, 000.00, which the Plaintiff accepted by letter dated 13th October 2022. The Plaintiffs advocates stated that a settlement agreement be signed between the parties and payment of the settlement sum be made on or before 21 st October 2022 as well as that the Plaintiff would only withdraw the criminal matter against the 2nd Defendant if the settlement was paid on or before the said date. The Defendants later wrote on 21 st November 2022, stating that they had had a change of heart and would not pursue the settlement. Disputed Facts 5.3 The facts in dispute herein are: whether or not the Plaintiff and Defendants eventually arrived at an agreement or settlement that is mutually binding and enforceable. The Defendants argue that the letter dated 13th October 2022, constituted a counter offer. The Plaintiff argues that his letter of 13th October simply requested payment by a certain date and did not introduce new terms and was therefore not a counter offer. Issue for Determination 5.4 The issue for determination therefore, in this cause, is whether or not the parties herein concluded a mutually binding and enforceable agreement in line with the principles of the law of Contract. i.e. did the Plaintiff's letter of 13th October constitute a counter offer and thereby nullify the Defendant's agreement to settle at an amount of USDl, 300, 00.00? 5.5 In the Supreme Court authority of The Rating Valuation Consortium and Another v. Lusaka City Council and another (3), the court held: "What should guide the court in analyzing business relationships should be whether or not the parties conduct and communication between them amounted to an offer and acceptance. What is regarded as an important criterion is for the court to discern a clear intention of the parties to create a legally binding agreement between themselves. This can be discerned by looking at the correspondence and the conduct of the parties as a whole." 5.6 In order to arrive at the determination of whether or not the parties herein concluded a mutually binding and enforceable J36 agreement in line with the Principles of the law of contract, it is legally required and of utmost necessity that their conduct and communication be analysed in order that the Court may discern the intent of the parties and whether or not this conduct and communication amounted to an offer and acceptance 5. 7 The Plaintiff, through his pleadings, provides that that sometime in the month of September 2022, the Defendants through their advocates, also now on record Messrs. Simeza Sangwa and Associates offered him through his former co - advocates Messrs. Mwenye and Mwitwa Advocates; a sum of USD 1,300,000.00, net of any applicable taxes and any bank charges, for the sole purpose of a full and final settlement of all civil and criminal matters pending in the Courts of Law between the parties. According to the Plaintiff, the Defendants had initially offered USD 1, 200, 000.00 through the Plaintiff's other co-advocates Messrs. Mutemwa chambers. The Plaintiff further avers that he did on the 07th of October 2022, communicate to his former co - advocates Messrs. Mwenye and Mwitwa Advocates the Defendants' said final offer of USDl, 300, 000.00 and instructed them to communicate his acceptance of the same to the Defendants' advocates. 5.8 According to the Plaintiff, his co - advocates' communication of 13th October 2022, on his behalf operated as a valid, final, J37 unequivocal and unconditional settlement of the offer without any rejection, modification or alteration of its terms. 5. 9 The Defendants provide in the matter mostly through their 2 nd witness, that that sometime in 2021, the Plaintiff made an initial proposal through his advocates Mutemwa Chambers to resolve all maters between the parties by payment of monetary compensation and this proposal was rejected by the Defendants. The Defendants further state that sometime in or about August 2022, the Defendants offered the Plaintiff USDl, 200, 000.00 which was later raised to USD 1, 300, 000.00, as the settlement to end all civil and criminal matters pending before various Courts of Law. 5.10 The Defendants provide that the Plaintiff did not accept the proposed offer and instead demanded the sum of USDS, 000, 000. 00 resulting in a series of telephone communication between the Plaintiffs Advocate Mr. Mutemwa S. C, and the Defendants' Advocate Mr. Robert Simeza, S. C discussing the matter. 5.11 The Defendants further state that the counter offer of USDS, 000, 000.00 resulted in the lapse of the of USDl, 300, 000.00 by the Defendants and their parties continued with litigation before the Courts of Law. 5.12 However, the Defendants received the letter dated 13th October 2022, from the Plaintiff's advocates Mwenye and Mwitwa Advocates stating that the Plaintiff had accepted the J38 USDl, 300, 000.00 offer which he had earlier rejected, additionally the Plaintiffs advocates wrote the letter of 08th November 2022, prompting the Plaintiffs advocates response of 21 st November 2022, which letter communicated that the Defendants saw no benefit in pursuing an amicable settlement of the matter and would in the premises leave matters to be determined by the Courts. 5.13 Due to the cardinal role of these letters afore-mentioned within the proceedings they are reproduced below: 5.14 The letter by the Plaintiff to his advocates dated 07th October 2022, exhibited at page 1 of the Plaintiff's bundle of documents provides. "Re: Myself, Amadeus International Limited and Rajendrakumar Sombhai Patel Settlement Negotiations. I refer to the above matter and various telephone conversations and meeting with your Mr. Eddie Mwitwa of even date and hereby confirm that I have accepted the offer of United States Dollars One Million Three Hundred Thousand (US$1, 300, 000.00) net of any applicable taxes ("settlement amount") from Mr. Rajendrakumar Sombhai Patel communicated to yourselves by his lawyer Mr. Robert Si,meza, SC in full and final settlement of all civil and criminal matters that are currently pending in the Court of Appeal, High Court and Subordinate Court of J39 Zambia. Kindly communicate the said position to Messrs. Simeza Sangwa & Associates. I also confirm that of the said settlement sum you are entitled to collect your fees in the agreed sum of Unites States Dollars Sixty Five Thousand (US$ 65, 000. 00) inclusive of Value Added Tax. Lastly, I wish to advise that it is my desire that the agreement and payment should be concluded even before the matter before Hon. Chiyayika against Mr. Rajendrakumar Sombai Patel is formally withdrawn by the State on my request. In this regard, I hereby give you my irrevocable undertaking that if the settlement amount is paid to me before the said matter is withdrawn by the State, I will not change my mind or position in relation to the settlement or the settlement amount. I also advise that you kindly request Messrs. Simeza Sangwa & Associates that there should be no Jurther_proceedings in any of the pending Court matters leading up to the signing of the settlement agreement. Yours faithfully Morgan Naik" 5.15 The Salvo Jure Letter by the Plaintiffs Advocates to the Defendants advocates of 13th October 2022, reads: "Attention: Mr. Robert M. Simeza, SC. "Without Prejudice" Dear Sirs J40 Re: Morgan Naik, Amadeus International Limited and Rajendrakumar Sombhai Patel - Settlement Negotiations. We refer to the recent telephone conversations between yourself and our Mr. Musa Mwenye, SC in relation to the above matter and confinn that we have received instructions fonn Mr. Morgan Naik to act for him therein as co - counsel with Messrs. Mutemwa Chambers. Further we hereby confinn that our client has accepted the offer of United States Dollars One Million Three Hundred Thousand (US$1, 300, 000.00) net of any applicable twces ('settlement amount") from your client Mr. Rajendrakumar Sombhai Patel as full and final settlement of all civil and criminal matters that are currently pending in the Supreme Court, Court of Appeal) High _Court and Subordinate Court of Zambia involving our client; Amadeus International Limited; and Rajen.drakumar Sombhai Patel, as well as the complaints that were lodged against our client by yours with the Zambia Police and the Drug Enforcement Commission and any other intended complaints against our client with any other law enforcement agencies. Our Client also instructs any settlement agreement to be signed by the parties and the payment of the settlement sum should be concluded on or before 21 st October 2022 at the very latest. J41 Lastly, we advise that our client has gwen us an irrevocable undertaking, and extends the same to yours, that if the settlement amount is paid to him before the criminal matter before Hon. Chiyayika against Mr. Rajendrakumar Sombai Patel is formally withdrawn by the State at his request. he will not change his mind or position in relation to the settlement or the settlement amount. Our clients also requests that there should be no further proceedings in any of the pending Court matters leading up to the signing of the settlement agreement. Yours faithfully MWENYE AND Ml,VJTWA-ADVOCATES'' 5.16 The second Salvo Jure communication by the Plaintiff's Advocates to the Defendant's advocates of 08th November 2022, reads: "Attention: Mr Robert M. Simeza, SC. «without Prejudice" Dear learned State Counsel, Re: Morgan Naik, Amadeus International Limited and Rajendrakumar Sombhai Patel - Settlement Negotiations. J42 We refer to our letter of 13th October 2022 and your telephone conversation with the undersigned of 20th October 2022. In keeping our professional duty to foster ex curia settlement of matters, we have taken the liberty of writing this letter to you without any persuasion from our client as we await your client's reaction to our letter of 13th October 2022. We also write to implore your client, through your esteemed chambers to take advantage of our client's present goodwill and 1villingness to bring the matters between them to a definite and amicable conclusion. We also advise that in the period of waiting for your client to respond to our letter dated 13th October, we have done everything in our power to ensure that our client does not change his mind on the proposed resolution of the matter and the settlement sum, which we understand our client initially pegged at US$ 5 million but eventually reduced to United States Dollars One Million Three Hundred Thousand (US$1, 300, 000.00) net of any applicable taxes and bank charges, as indicated in our last correspondence. We thus trust that it is in the interests of both parties to resolve this matter sooner rather than later, in a spirit of give and take. J43 From our conversations with our client, we can also advise that our client is also amenable to discussing and resolving any difficulties or impediments that may be standing in the way of concluding the settlement or any anticipated difficulties. We would be glad to hear from you in this regard. We would be most grateful to have your written response on or before Friday 11 th November 2022 on your client's position on the proposed settlement and thank you in anticipation of your favorable response. Yours faithfully MWENYE AND MW/TWA-ADVOCATES» 5.17 The Plaintiffs letter of response, also Salvo Jure of 21 st November 2022, provides: "Dear Sirs Re: Morgan Naik, Amadeus International Limited and Rajendrakumar Sombhai Patel - Settlement Negotiations. We apologise for the delayed response to your letter dated 08th November 2022. The delay was a result of our relentless effort to try and persuade our client to settle the matter amicably on tenns J44 discussed but it would appear our client sees things differently. Regrettably, our client sees no benefit in pursuing an amicable settlement of this matter and will in the premises leave the matters to be detennined by the Court. Yours faithfully Simeza, Sangwa & Associates" 5.18 I glean from the record, being the letter of 08th November 2022, contained at page 4 - 5 of the Plaintiffs bundle, cross examination of the Plaintiff witness and the Plaintiff's cross examination of the Defendant's 2nd witness that the Plaintiff did propose resolution of all outstanding matters between the parties at a settlement sum of USDS, 000, 000.00. 5.19 By the Plaintiff's own admission, via his pleadings the Defendants through their advocates Messrs. Simeza Sangwa initially offered him USD 1, 200, 000.00 through his co - advocates Messrs. Mutemwa chambers and eventually offered USDl, 300, 000.00. 5.20 The Plaintiff contends that he accepted this said offer via the letter dated 13th October 2022. 5.21 The record, demonstrates the fact that following the Plaintiffs proposal to resolve all outstanding matters between the J45 parties at a settlement sum of USDS, 000, 000.00 the Defendants via their advocates negotiated the amount to USD 1, 200, 000, which was eventually adjusted by the Defendants to USDl, 300, 000.00, to end all civil and criminal matters pending between the parties before various Courts of Law. 5.22 What follows is the letter by the Plaintiffs advocates Messrs. Mwenye and Mwitwa of 13th October 2023 reproduced above. 5.23 The learned authors of Halsbury's Laws of England Volume 9, 4th Edition reissue, 1998, Butterworths at 603 provide the following as elements for a valid contract: "To constitute a valid contract ( 1) there must be two or more separate and definite parties to the contract; (2) those parties must be in agreement, that is there must be consensus on specific matters ( often referred to in the older authorities as 'consensus ad idem'); (3) those parties must intend to create legal relations in the sense that the promises of each side are to be enforceable simply because they are contractual promises; (4) the promises of each party must be supported by consideration, or by some other factor which the law considers sufficient. Generally speaking, the law does not enforce a bare promise (nudum pactum) but onlv a bargain." J46 5.24 The persuasive authority of George Lewis v ZIMCO Limited (15) also referred to in the case of Humphrey Chela and Getrude Chela v Parmalat Zambia Limited (6) at page Jg provides: "In order to determine, whether in any given case, it is reasonable to infer the existence of an agreement, it has long been usual to employ the language of offer and acceptance. In other words, the court examines all the circumstances to see if the one party may be assumed to have made a firm "Offer" and if the other party m ay likewise be taken to have "accepted11 that offer. 5.25 Halsbury1s Laws of England, Volume 9, 4 th Edition, Butterworths, aforecited opines at paragraph 720 that: <rThe general rule in the case of agreements regulating business relations, it follows almost as a matter of course tha.t the parties intend legal consequences to follow. Ordinarily, such an implication will be deduced from the existence of consideration and this is particularly the case where aparly signs an agreement knowing it to be such, even where the agreement is drafted by 1 aymen » 5.26 The aforecited authority of Humphrey Chela and Getrude Chela v Parmalat Zambia Limited (6) at page Jl 1 further provides: J47 "We have read the record of appeal and also considered the issues in this appeal. After looking at the facts and taking in to account the legal proposition, it is clear to us firstly that, even if the Appellants paid the amount of K4.5million, that would not have advanced their case because the Appellants did not accept the Respondent's offer to buy the flat in question at KlOOmillion. Had they accepted that offer, the payment of K4.5million would have been considered as consideration moving from the Appellants to the Respondent and that could have brought about a binding contract. However, in this case, the Appellants instead of accepting that offer to purchase the fl.at in question at KlOOmillion, counter offered to buy the property for K40 million. That was not the end of the story. In response to this offer, the Respondent also counter offered to the Appellants in that they demanded that the Appellants pay K40 million in two installments, the first of K20million to be paid at the signing of the contract and the other K20million to be paid in two subsequent KlOmillion installments. Again that offer was not accepted by the Appellants. In our view this is a classic example of case where the minds of the two parties never met. So there was no agreement on the same thing in the same sense. We are therefore J48 satisfied that there was no binding contract between the parties. What comes out in the record is offers and counter offers which have no legal effect." 5.27 Further, H. G Beale's 'Chitty on Contracts', General Principles Volume 1, 25th Edition, London, 1986, Sweet and Maxwell, Para 1147 at page 620 (9) provides: "An offer is defined as an expression of willingness to contract on specifi,ed tenns made with the intention (actual or apparent) that it is to become binding as soon as it is accepted by the person to whom it is addressed ... An offer can be accepted by a reply provided that reply does not vary any of the terms in the offer nor does that reply introduce entirely new terms, because if such a reply does that, then that reply amounts to a counter offer." 5.28 The crucial letter from the Plaintiffs advocates Messrs Mwenye and Mwitwa of 13th October 2023 provides in part that: "Attention: Mr. Robert M. Simeza, SC. "Without Prejudice» Dear Sirs J49 Re: Morgan Naik, Amadeus International Limited and Rajendrakumar Sombhai Patel - Settlement Negotiations. We refer to the recent telephone conversations between yourself and our Mr. Musa Mwenye, SC in relation to the above matter and confirm that we have received instructions form Mr. Morgan Nailc to act for him therein as co - counsel with Messrs. Mutemwa Chambers. Further we hereby confirm that our client has accepted the offer of United States Dollars One Million Three Hundred Thousand (US$], 300, 000.00) net of any applicable taxes ('settlement amount") from your client Mr. Raiendrakumar Sombhai Patel as full and fi.nal settlement of all civil and criminal matters that are currently pending in the Supreme Cou rt, Court o[Appeal, High Court and Subordinate Court of Zambia involving our client; Amadeus International Limited; and Ra;endrakumar Sombhai Patel, as well as the complaints that were lodged against our client by yours with the Zambia Police and the Drug En forcement Commission and any other intended complaints against our client w ith any other law enforcement agencies. Our Client also instructs any settlement agreement to be signed by the parties and the payment of the settlement sum should be concluded on or before 21 st October 2022 at the very latest. JSO Lastly, we advise that our client has qwen us an irrevocable undertalcinq, and extends the same to your~ that if the settlement amount is paid to him before the criminal matter before Hon. Chiyayika against Mr. Rafondrakumar Sombai Patel is formally withdrawn by the State at his request. he will not change his mind or position in relation to the settlement or the settlement amount. Our clients also requests that there should be no further proceedings in any of the pending Court matters leading up to the signing of the settlement agreement. Yours faithfully MWENYE AND MWITWA-ADVOCATES" 5.29 It is evident from the record, that following the meeting in which the Defendants offered the Plaintiff the sum of USD 1, 300, 000. 00, to end all civil and criminal matters pending between the parties before various Courts of Law, discussions continued to be had between the Defendants' and Plaintiff's counsel in relation to the matter, the net effect of such discussions maintained the Defendants' offer of USDl, 300, 000.00, which the Plaintiff in his letter communicates to have accepted though further instructs that a settlement agreement be signed to that effect and both the sum be paid and settlement agreement be executed on or before 21st October 2022 at the very latest. The net effect of this instruction or action is that it resulted in a counter offer. It is JS1 trite law that conditional acceptance is insufficient and cannot be deemed as such (acceptance) as it causes the original offer to lapse. 5.30 While the learned authors of H. G Beale's 'Chitty on Contracts', General Principles Volume 1, 25th Edition, London, 1986, Sweet and Maxwell, aforecited provide that an off er can be accepted by a reply they emphasize that this is only provided that reply does not vary any of the terms in the offer nor does that reply introduce entirely new terms. The terms of execution of a settlement agreement and payment of the settlement sum on or before 21 st October 2022, are neither discussed nor introduced prior to the letter of 13th October 2023, and thus entirely new. They are not clarifications to me. 5.31 The Plaintiff's express10n of willingness to contract on specified terms, which were made with the intention of becoming binding as soon as they were to be accepted by the Defendants, meets the standard definition of an offer, in casu, a counter offer as the Defendants had made their own express10n of willingness to contract on specified terms themselves. The Plaintiffs response therefore cannot be said to have been a valid, final, unequivocal and unconditional settlement of the offer without any rejection, modification or alteration of the terms of the Defendants' offer. I reject the Plaintiffs contention that his response constituted a mere suggest request or suggestion as the same was in the form of J52 a clear instruction to his counsel which instructions were to be conveyed to the Defendants. 5.32 I am fortified in this position by the authority of Jones v Daniel (10) "A counteroffer may come upon a scene not bearing its badge on its sleeve but dressed as an acceptance. In principle to be effective an acceptance must accept all the terms contained in the offer. In practice however, many so called acceptances while purporting to accept also attempt to introduce new terms, such an acceptance is in fact a counterclaim." 5.33 The English landmark authority of Hyde v Wrench ( 16), held that when a counter offer is made, it supersedes and destroys the original offer making the original offer no longer available. It is therefore necessary that, not only should the acceptance mirror the offer but anything outside of that constitutes a rejection of the offer either via outright rejection, counter - offer or some other legally recognizable means such as conduct. 5.34 In addition, the Plaintiff's advocates letter of 08th November 2022, reproduced above, states in part: (( J53 In keeping our professional duty to foster ex curia settlement of matters, we have taken the liberty of writing this letter to you without any persuasion from our client as we await your client's reaction to our letter of 13th October 2022. We also write to implore your client, through your esteemed chambers to take advantage of our client's present goodwill and willingness to bring the matters between them to a definite a nd amicable conclusion. We also advise that in the period of waiting for your client to respond to our letter dated 13th October, we have done everything in our power to ensure that our client does not change his mind on the proposed resolution of the matter and the settlement sum, which we understand our client initially pegged at US$ 5 million but eventually reduced to United States Dollars One Million Three Hundred Thousand (US$1, 300, 000.00) net of any applicable taxes and bank charges, as indicated in our last correspondence. We thus trust that it is in the interests of both parties to resolve this matter sooner rather than later, in a spirit of give and talce. From our conversations with our client, we can also advise that our client is also amenable to discussing and resolving any difnculties or impediments that may be s tanding in the way of concluding the settlement or any J54 anticipated difficulties. We would be glad to hear from you in this regard. We would be most grateful to have your written response on or before Friday 11 th November 2022 on your client,s position on the proposed settlement and thank you in anticipation of your favorable response. Yours faithfully MWENYE AND MvVITWA-ADVOCATES,, 5.35 The reference in such correspondence to the Plaintiff's "willingness to bring the matters between them to a definite and amicable conclusion and the willingness to resolve this matter sooner rather than later, in a spirit of give and take", demonstrates that the matters had beyond the 13th of October 2023, not obtained the status of having been concluded or resolved "definitively." The correspondence further refers to the Plaintiff's terms as a "proposed resolution" and "a proposed settlement" in paragraphs 3 and 5 of the letter respectively; this demonstrates in clear terms the status of the matter even in the contemplation of counsel being: existence of ongoing negotiations in a bid to settle the matters between the parties. I therefore reject the Plaintiff's contention that the letter of 13th October 2023, constituted an agreement between the parties. The correspondence and conduct of the parties does not, in my view demonstrate agreement, meeting of minds or consensus on specific JSS matters ( 'consensus ad idem) as legally required of a binding contract. 5.36 I, at this juncture, find it necessary to emphasize for the record, to litigants and potential litigants at large that such serves the purpose of Salvo Jure or "Without Prejudice" communications between legal counsel and their fell ow advocates on behalf of clients. Because advocates seek to act in the best interest of the client as well as arrive at just resolution of matters on their behalf: proposals and communications are made among them on their clients' behalf and at their (client's) instruction. Such communications and open dialogue until justly resolute are so properly without prejudice to avoid parties seeking to act on them prematurely or to gain an upper hand on the other. These discussions eventually foster ex - curia settlements or amicable resolution of matters that would otherwise have been contentious and concluded on an unsatisfactory note for one or more of the parties; they also by this avenue (ex - curia settlement) de - congest the ever so busy Courts of Law. 5.37 Nevertheless, examination of the pleadings demonstrates that the purpose of the proposed settlement between the parties was to achieve full and final settlement of all matters: civil and criminal, pending before various Courts of Law between the parties herein for a monetary sum. I note from the record that the Plaintiff at no point withdrew his complaint in the criminal case against the 2nd Defendant J56 which was at the time of their negotiations open and he was on stand. The 2nd Defendant according to the Notification of Discharge exhibited at page 1 of the Defendants' bundle was discharged on the 10th of May 2024. 5.38 I further, by pages 24 to 26 of the said bundle, note causes CAZ/08/309/2023 and CAZ/08/ 129/2023 initiated by Plaintiff and against the 1st Defendant herein both dated beyond his advocates' letter of 13th October 2023. 5.39 I as well note, the Defendants' advocates letter of 21 st November 2023, exhibited at page 6 of the Plaintiffs bundle communicating that their client sees no benefit in pursuing amicable settlement of the matter and will in the premises leave the matters to be determined by the Court. It goes without saying that the Defendants paid no monetary sum to the Plaintiff for this purpose. 5.40 In the English of authority of Currie v Misa (17), the Court defined consideration as: "consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other" 5.41 Another definition was given by Sir Frederick Pollock in a treatise on Contract Law at page 133; J57 "An act or forbearance of the one party, or the promise thereof; is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.» This definition was adopted by Lord Dunedin in Dunlop v Selfridge ( 13) 5 .42 The Zambian Court of Appeal in the case of Yingatsar Investment Company v Netur Plex Investment Limited (14), at page J24 held that: "in the absence of consideration, it is difficult to assess whether the parties intended to create legal relations or whether any legal consequences would arise" 5.43 Consideration can be said to be g1v1ng, doing or allowing something in return for the other party's act or promise. The record not only demonstrates the Defendants' rejection of the Plaintiffs counter-offer but that no consideration was exchanged between either of the parties. Given the trite position that "he that comes to equity must do so with clean hands", a lack of the exchange or the passing of consideration within the purported agreement as contended by the Plaintiff further dismantles his contention that the parties had an agreement or meeting of minds. Suing for a purported breach of contract that the Plaintiff himself did not act upon would J58 raise significant concerns as to the "validity'' of the purported agreement even in the mind of any reasonable man. 5.44 In the Premise, the Plaintiffs claim fails in its entirety and is dismissed forthwith. 6.0 CONCLUSION 6.1 By reason of the afore - stated I find that the Plaintiff has failed to prove his claims against the Defendants on the balance of probabilities. 6.2 I make no order as to costs Delivered at Lusaka this 1st day of September, 2025. ' ........ . .... • HIGH COURT e G , G' '%, ~ ,. . / ,J ~ S.., J59