MTN Zambia v Tekeniko Solutions (Appeal No. 296 of 2023) [2024] ZMCA 106 (28 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) Appeal No. 296 of 2023 CAZ/08/303/2023 BETWEEN: AND ~~ ,J J ' TEKENIKO soLq TION ·, Appellant Respondent ~ORA_M: Chashi, Makungu and Sharpe-Phiri, JJA on,30 April 2024 and 28 May 2024 For the Appellant: Mr. S. Chisenga of Corpus Legal Practitioners For the Respondent: Mr. P. K. Chibundi and Mrs. M. C. Chilufya of Mosha & Company JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court Legis lation referred to: 1. The Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia 2. The Competition and Consumer Protection Act, No. 2 of 2010 Cases referred to: 1. William David Carlisle Wise v E. F. Hervey limited SCZ Judgment No. 18 of 2. Dr. Patrick Nkhoma v Southern Cross Motors Limited, the Competition and Consumer Protection Commission & The Attorney General (2018/HP/ 0803) JI 3. Zambia National Holdings Limited and United National Independence Party (UNIP) v The Attorney General (1984) Z. R. 63 4. Godfrey Miyanda v The High Court SCZ Judgment No. 3 of 1994 5. Nationwide Airlines (Pty) Ltd (in Liquidation) v South African Airways (Pty),(2016) 4 All SA 153 (GJ) 6. Comair Limited v South African Airways (Pty) (2017) ZAGP HJC 10 7. Michael Chilufya Sata MP v Zambia Bottlers Limited (2003) ZR 1 1. INTRODUCTION 1.1 This is an interlocutory appeal against a Ruling issued by Kafunda, J of the Lusaka High Court on 17 May 2023. In the lower Court, the appellant was defendant, while the respondent was the plaintiff. The ruling under appeal pertains to the dismissal by the learned trial Judge of the appellant's application seeking to dismiss the respondent's case on a point of law. 1.2 In arriving at the decision, the trial Judge referenced Section 40 of the Interpretation and General Provisions Act. He asserted that the imposition of a penalty or fine by or under the Competition and Consumer Protection Act did not exempt from being held accountable for damages under private law. 1.3 Furthermore, the trial Court determined that the respondent's statement of claim outlined a valid cause of action against the appellant. If substantiated successfully, this cause of action would attach liability to the appellant. 2. BACKGROUND TO THE MATTER 2.1 A brief overview of the case reveals that the respondent initiated legal proceedings on 16 August 2022, by filing of a writ of summons and statement of claim against the appellant. The respondent claimed for the following reliefs: z. A declaratory order being that the defendant is liable to the Plaintiff for loss of business revenue in the Mobile Terminated SMSes and Mobile Originated SMSes in bulk mobile project occasioned by the illegal anti- competitive dominance of the defendant; ii. A declaratory order being that the defendant is liable to the plaintiff for loss of business revenue in the Tiki Financial Solutions project occasioned by the illegal anti-competitive dominance of the defendant; iii. An order that the said damages for loss of business revenue and expectations be assessed by the Court against the Defendant and paid to the Plaintiff; iv. v. Any other relief the Court deems.fit; and Costs of and incidental to this action; 2.2 The essential details outlined in the statement of claim in the lower court revealed the following background facts leading to the mentioned legal action: The respondent operated as a sophisticated software development, aggregation, and integration company, primarily centered on mobile J3 solutions. Throughout the relevant period, it conducted its operations under the legal entity, Technosoft IT Solutions Limited. 2.3 The appellant served as a provider for configuring short codes across various mobile network operator platforms, specifically related to Mobile Terminated SMSes and Mobile Originated SMSes (referred to as 'MT SMSes and MO SMSes' ). This service held a significant market share in this domain. 2.4 In 201 7, the respondent, operating under its registered legal entity Technosoft IT Solutions Limited, entered into an agreement with an international client called Geopoll Mobile Surveys. Under this agreement, the respondent was tasked with managing short code 5055 across three mobile network operators in Zambia: Zambia Telecommunications Company Limited (Zamtel), Airtel Zambia PLC, and the appellant. 2.5 It was asserted that the respondent fulfilled all the prerequisites outlined by the various network providers. While Airtel Zambia PLC and Zamtel agreed to configure the respondent's short code on their platforms, the appellant, despite the respondent meeting its requirements, informed the respondent on 12 September 2016, that it would not proceed with configuring the short codes. The reason given was that the appellant was developing a similar system configuration and to avoid cannibalization. This rationale for refusal was later altered on 21 November 2017, when the appellant claimed that the respondent's client, Geopoll, had purportedly failed to fulfil a previous contract with them. However, this claim was devoid of merit. 2.6 The respondent proceeded to conduct business case projections for both MT SMSes and MO SMSes on the platforms of Airtel Zambia PLC and Zam tel Limited. Within the initial quarter of operations, there was a notable increase in revenue for SMS volumes. However, these business operations experienced a sudden and significant decline due to the appellant's unlawful dominant practice of refusing to allow the configuration of the respondent's short codes. 2. 7 As a result of the delay and subsequent refusal by the appellant to configure the short code 5055, the respondent lost its contract with Geopoll Mobile Surveys around 2018. This loss occurred because the respondent lacked access to the MT SMSes and MO SMSes of the appellant's subscribers. 2.8 In approximately 2016, the respondent also initiated an electronic money application in collaboration with an Indian developer called Exceptionaire Technologies, leading to the establishment of Tiki Financial Services. Payments were made for the designs of this service. However, due to the anti-competitive actions in configuring the respondent's bulk SMS project, Tiki Financial failed to succeed, causing the respondent to incur losses due to the appellant's actions. JS 2.9 It has been determined that the appellant's refusal to configure the short codes for the respondent was not motivated by their intention to develop a similar system. Rather, it was an action driven by the appellant exercise of non-competitive dominance in the mobile network operator market. 2.10 As a consequence of these events, the respondent lodged a complaint with the Competition and Consumer Protection Commission (CCPC) alleging that the appellant's refusal to configure short code 5055 on its network platform constituted an abuse of dominance in the mobile network operator market. The CCPC subsequently issued a ruling on 19 March 2019, under case number CCPC/AOD/010. 2.11 In that ruling, the CCPC determined that the appellant had indeed abused its dominance in the mobile networks operator market by denying configuration of sh01t codes for the respondent. This denial effectively hindered the respondent's business services in the MT SMSes, MO SMSes and Tiki Financial Solutions. Through the present action initiated in the court, the respondent seeks to demonstrate that the violation by the appellant resulted in substantial revenue loss amounting to ZMW 552,396,325.43 during the years 2016 to 2021. 2.12 The respondent's contention in the lower court was that although the CCPC imposed a fine on the appellant equivalent to 2% of its annual turnover solely for the year 2016 due to its infringement of dominant market position in the mobile network operator market - a fine that the appellant has since paid, this remains inadequate to sufficiently compensate for the ongoing losses incurred to date. 2.13 Furthermore, the respondent contends that the appellant persists in abusing its market dominance, leading to continued losses for the respondent, despite numerous attempts by the appellant to rectify the revenue loss it caused. 3.0 THE APPELLANT'S DEFENCE IN COURT BELOW 3 .1 In its defence filed in the High Court on 3 1 August 2022, the appellant refuted the respondent's allegations. It asserted that the respondent failed to fulfill the prerequisites outlined by the appellant for configuring a zero rated service on short code 5505 for conducting a mobile-based survey, contrary to the respondent's assertions. 3 .2 The appellant disclosed that at the time of the request for short code configuration, the respondent was not a legally incorporated entity. Additionally, the appellant explained that its refusal to configure the short code stemmed from several inconsistencies in the respondent' s requests and its demands for the appellant to engage in unlawful activities. These inconsistencies were reportedly uncovered during the appellant's internal approval processes. 3 .3 When initially approached by the respondent for the configuration of the short code, the appellant noted that the short code in question was owned by Technosoft IT Solutions Limited, a distinct legal entity separate from the respondent. Additionally, the respondent requested access to the entirety of the appellant's subscriber base, a request that raised legal J7 concerns for the appellant as such action contravened regulations set forth by the Zambia Information and Communication Technology Authority. Furthermore, it came to light that the respondent' s partner, Geopoll, had previously entered into a contract with the appellant but failed to fulfil its obligations. This history raised doubts about the respondent's ability to deliver on the current contract. 3 .4 The appellant reiterated that its decision to decline configuring the respondent's short code stemmed from various inconsistencies unearthed during its internal approval procedures, emphasizing that no legal relationship was established between the two entities. The appellant contended that its legal prerogative to refuse to engage in a contract was the root cause of the purported decline in the respondent' s business revenues. 3.5 Furthermore, the appellant refuted any claims of engaging in anti competitive behaviour, asserting that its subsequent refusal to engage with the respondent was justified by legitimate business reasons. 3.6 Additionally, the appellant disclosed that the decision made by the CCPC was appealed on 30 April 2019, to the Competition and Consumer Protection Tribunal. Subsequently, a Settlement Agreement was reached between the CCPC and the appellant. Under this agreement, the appellant consented to the withdrawal of the proceedings before the Competition and Consumer Protection Tribunal, effectively resolving the matter. J8 I.. 3.7 Moreover, the appellant refuted allegations of abusing its dominance and argued that it cannot be held liable for any losses incurred by the respondent. The appellant emphasized that no contract was ever entered into between itself and the respondent, thus absolving it of any responsibility for such losses. 3.8 Furthermore, the appellant asserted that despite complying with the CCPC's directive to pay 2% of its turnover, it has continued to receive letters of demand from the respondent, asserting claims which the appellant deems baseless. 4.0 APPELLANT'S APPLICATION IN COURT BELOW 4.1 On 12 October 2022, the appellant filed a summons to dismiss the action in the lower Court on a point of law, which ultimately led to this appeal. The summons was based on the determination of the following legal points: z. That the Competition and Consumer Protection Commission Board decision of 19 March 2019 is not a chose in action and consequently, the plaintiff did not acquire personal property rights in the said decision to be able to bring an action in that the Competition and Consumer Protection Act, 2014 does not provide for private civil law remedies for damages or compensation for persons that make complaints under it or are affected by the decisions of the Competition and Consumer Protection Commission; and J9 ii. That the action, commenced by the plaintiff on 16 August 2022, does not disclose a reasonable cause of action under private law and should accordingly be dismissed. 5.0 DECISION OF THE TRIAL COURT 5.1 In his assessment of the application before him, Justice Kafunda, expressed his opinion in his ruling on page Rl 5 that the appellant's argument claiming that the decision of the CCPC Board does not grant a chose in action to the respondent is unsustainable. He noted that the respondent's case was not actually based on the CCPC decision but rather on the alleged dominant activities of the appellant. The trial Court found that the core of the respondent's case rested on the argument that it suffered loss and damage due to the appellant's dominant activities. 5.2 Furthermore, in the respondent's endeavour to establish that the appellant indeed engaged in such injurious behavior, it was inevitable for the respondent to refer to facts related to the said activities, some of which, were under consideration before CCPC. The trial Court concluded that the respondent was therefore entitled to bring an action based on the right to seek redress for the loss or damages allegedly incurred as a result of the appellant's activities. JIO 5.3 In reaching this conclusion, the trial Judge relied on the provisions outlined in Section 40 of the Interpretation and General Provisions Act, which states: "The imposition of a penalty or fine by or under the authority of any written law shall not, in the absence of express provision to the contrary, relieve any person from liability to answer for damages to any person injured." 5 .4 The trial Court concluded on this matter that according to the foregoing provision, the imposition of a penalty or fine by or under the Competition and Consumer Protection Act does not exempt the defendant from liability to respond to damages under private law. Additionally, the trial Judge made a distinction between the present case and the case of Patrick Nkhoma v Southern Cross Motors Limited and Another. In the Patrick Nkhoma case, the pleadings asserted a chose in action based on the decision or judgment of the CCPC, which was not the situation in the current case. 5. 5 In determining the second point of law regarding whether a cause of action had been disclosed in the respondent's case, the trial Judge referred to the Supreme Court decision in the case of William David Carlisle Wise v E. F. Hervey Limited. 1 According to the trial Judge's analysis, it is established that a cause of action is considered disclosed when a factual situation is alleged containing facts upon which a party can attribute liability to another or establish a right to entitlement for a remedy from the Court against another individual. JI I 5.6 The trial Court proceeded to note in its ruling, on page R18, that respondent's submissions were based on purported actions by the appellant, which, according to the respondent led to a loss of revenue. These assertions, if substantiated, could lead to the appellant being held accountable and may afford the respondent a legal remedy. The Court concluded by determining that the respondent's statement of claim did indeed outline a valid legal basis for action against the appellant. 6.0 APPELLANT'S GROUNDS OF APPEAL 6.1 Expressing discontent with the ruling delivered on 17 May 2022, the appellants filed a Notice and Memorandum of Appeal on 16 June 2023 outlining three grounds of appeal as shown below: i. That the Learned Judge in the Court below erred in both law and fact when it held at page Rl 5 of the ruling that the plaintiffs action was anchored on facts that asserted that the defendant 's alleged illegal dominant activities that allegedly caused loss to the plaintiff and not anchored on the impugn,ed decision of the Competition and Consumer Protection Commission as submitted by the defendant notwithstanding that it is only the Competition and Consumer Protection Commission that has jurisdiction to determine illegal dominant activities being the abuse of dominance and therefore, the plaintiffs action was incompetently before the High Court; Jl2 zz. That the Learned Judge in the Court below erred in both law and fact when it held at page RI 6 of the ruling that the Patrick Nkhoma2 case is distinguishable from this case in that the reliefs sought in that case were amount [among] others, a declaration that a citizen of Zambia who lodges a complaint against a person or enterprise under the provisions of the Competition and Consumer Protection Act No. 24 of 2010 has personal property rights in the Judgment and/or decision rendered in his favour by the Board and the Competition and Consumer Protection Commission or the Competition and Consumer Protection Tribunal, when the claims by the plaintiff for alleged illegal market dominance can only be established after a complaint is lodged with the Competition and Consumer Protection Commission and after the Board of the Commission has made a determination whether there was abuse of dominance or not; and m. The learned Judge in the Court below erred in both law and fact when he held that the plaintiff's statement of claim disclosed a cause of action against the defendant and neglected to consider that there was no legal or contractual relationship between the appellant and the respondent upon which the claims could be anchored upon as the only nexus between the appellant and the respondent that existed was the said decision of the Board of the Competition and Consumer Protection Commission. 7.0 ARGUMENTS OF THE PARTIES 7.1 The appellant filed heads of argument on 15 September 2023. We did not have sight of the respondent's arguments at the time of this decision. 7.2 The appellant's arguments have been duly considered, although they will not be reiterated here but will be referred as needed. 8.0 HEARING OF THE APPEAL 8.1 The appeal was presented before us on 30 April 2024. Both the Appellant and the Respondent were represented by their respective counsel, as previously mentioned. Counsel relied on the heads of argument filed into Court on 15 September 2023 and 25 April 2024 respectively. The arguments will not be restated here but will be referenced as necessary in the analysis portion of the judgment. 9.0 DECISION OF THIS COURT 9 .1 Having thoroughly examined the grounds of appeal, the record of appeal and the arguments put forth by both parties, we intend to address the three grounds of appeal in the sequence they have been presented. 9.2 In the first ground of appeal, the appellant contends that the learned Judge in the lower Court erred in both law and fact by stating, at page R15 of the ruling, that the plaintiffs action was based on facts alleging the defendant's purported illegal dominant activities, which allegedly resulted in loss to the plaintiff, rather than being grounded on the contested decision of the Competition and Consumer Protection Commission, as argued by the defendant. The appellant argues that since it is solely within the jurisdiction of the Competition and Consumer Protection Commission to determine Jl4 illegal dominant activities, specifically the abuse of dominance, the plaintiffs action was incompetently brought before the High Court. 9.3 The appellant contended that the Competition and Consumer Protection Act confers exclusive jurisdiction upon the CCPC to investigate, determine, and impose fines or penalties in cases involving the abuse of dominance by parties. In support of this argument, the appellant referenced Section S(c) and 16 of the Competition Act. These provisions read as follows: "5. The functions of the Commission are to - (c) investigate and assess restrictive agreements, abuse of dominant positions and mergers; .. " 9.4 Further, Section 16 aforesaid further provides that: "16. (1) An enterprise shall refrain from any act or conduct if, through abuse or acquisition of a dominant position of market power, the act or conduct limits access to markets or otherwise unduly restrains competition or has or is likely to have adverse effect on trade or the economy in general. (2) For purposes of this Part, "abuse of a dominant position" includes- (a) imposing, directly or indirectly, unfair purchase or JJ S selling prices or other unfair trading conditions; (b) limiting or restricting production, market outlets or market access, investment, technical, development or technological progress in a manner that affects competition; (c) applying dissimilar conditions to equivalent transactions with other trading parties; ( d) making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by nature or according to commercial usage have no connection with the subject matter of the contracts; (e) denying any person access to an essential facility; (I) charging an excessive price to the detriment of consumers; or (g) selling goods below their marginal or variable cost. (3) An enterprise that contravenes this section is liable to pay the Commission a fine not exceeding ten percent of its annual turnover." 9.5 Furthermore, the appellant elaborated on the issue of jurisdiction by citing precedents from the Supreme Court, specifically referencing the cases of Zambia National Holdings Limited and United National Independence Party (UNIP) v The Attorney General3 as well as Godfrey Miyanda v The High Court.4 In these cases, the Supreme Court affirmed that the limits and authority of each Court in Zambia are delineated within the relevant legislation. ]16 9.6 The appellant further countered the authorities cited by the respondent in the lower Court, specifically referencing the cases of Nationwide Airlines (Pty) Ltd (in Liquidation) v South African Airways (Pty)5 and Comair Limited v South African Airways (Pty).6 In those cases, the respondent sought to convince the trial Judge that an individual who has incurred loss or damage has the right to initiate legal action in a civil court to seek damages. The appellant argued against this by asserting that these cases were not applicable to the present situation because the South African Competition Act, unlike the Zambia Competition and Consumer Protection Act, explicitly provides for a civil remedy for individuals who have suffered loss or damage due to prohibited practices under the Competition Act. 9. 7 The respondent rebutted that contrary to the appellant's arguments on this ground, the trial Court's position was that the action by the respondent was not premised entirely on the decision of the Competition and Consumer Protection Commission Board. It was argued that the Court acknowledged which facts related to the behavior of the Appellant that fell under the consideration of the Competition and Consumer Protection Commission. The Respondent insisted that its case is not founded on the decision of the Competition and Consumer Protection Commission alone but is also based on the loss and injury caused to it as a result of the Appellant's dominance activities. Jl 7 9.8 We have carefully reviewed the appellant' s arguments on this ground. While acknowledging that the Competition and Consumer Protection Act does not offer any civil remedies for breaches under the Act, we note that Section 40 of the Interpretation and General Provisions Act, which the trial Court relied upon is quite explicit on this matter. It states: "The imposition of a penalty or fine by or under the authority of any written law shall not, in the absence of express provision to the contrary, relieve any person from liability to answer for damages to any person injured." 9.9 The prov1s10n 1s clear and unambiguous; unless there are contrary provisions, the imposition of a penalty or fine under any written law does not exempt any individual from being held accountable for damages to any injured party. 9 .10 Therefore, in the absence of any explicit prohibition against seeking civil remedies under the Competition and Consumer Protection Act, the High Court maintains its jurisdiction to adjudicate such civil actions, as demonstrated in the current case. 9.11 This stance is supported by the Supreme Court ruling in the case of Michael Chilufya Sata MP v Zambia Bottlers Limited.7 In that instance, the Supreme Court deliberated on whether civil remedies would be accessible for circumstances falling under criminal sanctions outlined in the Food and Drugs Act. Jl8 t 9.12 The Court' s verdict in the above case was follows: "We shall deal with the second and third grounds of appeal together as we believe that they are interrelated. There is no dispute that the bottle of sprite produced in the court below was adulterated as it contained a dead cockroach. Section 3(b) of the Foods and Drugs Act makes it a criminal offence to sell any food or drink which is contaminated with any foreign matter. The penalties/or a breach of this section are contained in Section 31(2) of the Act and these are, in the case of a first offence, a fine not exceeding one thousand penalty points or to imprisonment for a term not exceeding three months, or to both. Thus, it will be observed that the only remedies/or a breach of Section 3(b) of the Food and Drugs Act are criminal sanctions and there is no provision for the recovery of damages in a civil suit. As the learned authors of Charlesworth on Negligence observed at paragraph 1104: "it would seem that if the statute has imposed a penalty for its breach but was silent as regards any remedy in civil law for damages there may be a presumption initially that the remedy prescribed by the criminal law is the only remedy." Further, the learned authors go on to point out that unless the statute or regulations provide to the contrary, the burden rests on the Plaintiff to prove on a balance of probabilities that the breach of duty caused or materially contributed to his damage. In other words, negligence is only actionable if actual damage is proved, there is no right of action/or nominal damages. As Lord Reading, J1 9 C. J. said in the case of E. Suffolk Rivers Catchment Board v Kent (5) "Negligence alone does not give a cause of action, damage alone does not give a cause of action; the two must co-exist." There was no injury or damage caused to the appellant by the adulterated drink as he did not consume any part of it. Even Dr Kawimbe the medical practitioner called by the appellant in the court below admitted that no treatment was prescribed for the appellant and his children for the "nausea" caused by the sight of a dead cockroach in an unopened bottle of sprite. Grounds 2 and 3 cannot also succeed and in the event, we dismiss the appeal with costs, the costs are to be taxed in default of agreement." 9 .13 From the afore mentioned, one could argue that the Supreme Court proceeded to address the civil claim of negligence where the Food and Drugs Act explicitly outlines criminal sanctions. The sole reason the civil action could not be sustained was due to the determination, based on evidence, that no harm befell the appellant as he had not consumed the adulterated beverage. Additionally, we believe that in the absence of any explicit prohibition within the enabling criminal legislation, a civil remedy remains inherently accessible under Section 40 of the Interpretation and General Provisions Act. For this reason, this ground of appeal fails. 9.14 In the second ground, the appellant argues that the learned Judge in the lower Court erred in both law and fact by stating, at page R16 of the ruling, that the Patrick Nkhoma case is distinguishable from the present case. The distinction made was that in the Patrick Nkhoma case, the reliefs sought included, among others, a declaration that a citizen of Zambia who files a complaint against a person or enterprise under the Competition and Consumer Protection Act No. 24of2010 possesses personal property rights in the judgment or decision rendered in their favour by the Board, the Competition and Consumer Protection Commission, or the Competition and Consumer Protection Tribunal. However, claims regarding alleged illegal market dominance can only be substantiated after a complaint is lodged with the Competition and Consumer Protection Commission and after the Commission' s Board has decided regarding the presence of abuse of dominance. 9 .15 The respondent submitted in reference to the second ground of appeal that the Dr Patrick Nkhoma case cited by the Appellant is distinguishable from this case. It argued that in that case the claimant sought to assert proprietary rights in a decision of the Competition and Consumer Protection Commission decision whereas in the current case, the respondent is not seeking to do that but only referring to the said decision as part proof that the Appellant has acted wrongfully. 9 .16 Based on the rationale provided in our analysis of the first ground, this ground of appeal similarly lacks merit. Moreover, we acknowledge that the Dr Patrick Nkhoma case upon which the appellant relies, is a High Court J21 decision that did not specifically consider the provisions of Section 40 as mentioned earlier. Furthermore, the position taken seems to contradict the procedure adopted by the Supreme Court in the cited Michael Sata case. Therefore, for these reasons, this ground of appeal also lacks validity. 9.17 In the third ground of appeal, the appellant contends that the learned Judge in the lower Court erred in both law and fact by concluding that the plaintiff's statement of claim established a cause of action against the defendant, while allegedly neglecting to consider the absence of a legal or contractual relationship between the appellant and the respondent upon which the claims could be anchored. The appellant asserts that the only connection between them was the said decision of the Board of the Competition and Consumer Protection Commission. 9 .18 Considering our previous discussions on the first and second grounds of appeal, we find ourselves inclined to concur with the trial Judge's assessment that the facts presented in the pleadings do prima facie support a case for consideration, to be substantiated to the required standard during civil proceedings. The determination of whether the respondent has proven the injury and resulting damages it claims to have suffered, and whether such harm was a consequence of the appellant's breach of duty, can only be fully addressed at trial. Such matters cannot comprehensively be resolved at a preliminary stage. For these reasons, this ground of appeal is also deemed unsuccessful. 10.0 CONCLUSION 10.1 Having arrived at the conclusions outlined above, the appeal 1s unsuccessful in its entirety. 10.2 The appellant is directed to bear the respondent's costs incurred in this appeal, which shall be taxed in default of agreement. C. K. Makungu COURT OF APPEAL JUDGE ~ ~ N. A. Sharpe-Phiri COURT OF APPEAL JUDGE J23