Atlantic Bakery Limited v Zesco Limited (Appeal 47 of 2016) [2018] ZMSC 371 (20 December 2018)

SELECTED JUDGMENT NO. 61 OF 2018 IN THE SUPREME COURT OF ZAM IA HOLDEN AT KABWE ( Civil Jurisdiction) BETWEEN: AND ZESCO LIMITED P.2308 APPEAL No. 47 /2016 SCZ/8/334/2015 APPELLANT RESPONDENT Coram: Hamaundu, Malila anJ Mutuna, JJS On 6th November, 2018 and 20th December, 2018 For the Appellant: Mr. K. C enda, Messrs Simeza, Sangwa & Associates For the Respondent: Mr. A. P. Mulenga, In-house Legal Officer, ZESCO JUDGMENT I I MALILA, JS, delivered the J udgl ent of th e Court. Cases referred to: 1. Shilling Bob Zinka v. Atto11-ey-General (1990-92) ZR 73. 2. Attorney-General v. Marcas A chiume (1983) ZR 1. 3. Examinations Council of Zambia v. Reliance Technology Limited (2014) (3) ZR 171. J2 Legislations referred to: 1. Electricity Act, chapter 4 33 of the laws of Zambia 2. Zambia Electricity Supply A ct, chapter 813 of the laws of Zambia 3. Electricity Act (Amendme nt) Act No . 21 of 2003 4. Government Gazette Notice No. 232 of 1 990 P.2309 At all material times, the appellant ran a bakery business I m the Emmasdale Area of Lr saka. The respondent is the dominant and in a sense a moiilopolistic public utility firm with a network infrastructure for ge+ ration (including in some cases the exclusive right to import), t ansmission and distribution of electricity for households and inttlustrial use in Zambia .. The dispute that has escal ted to this court, arose from a power supply agreement number d 1094955 made sometime in 2000 between the appellant, as a \ onsumer and the respondent, \ as the supplier of electricity. Th t disagreement started when the appellant raised some concer1 regarding the increase in the value of the invoices that it was rec~iving for electricity consumed ' in its bakery operations. The appei lant formed the view that the bills were inflated and were thus no a true reflection of the power consumed by it. J3 P.2310 Following some complaint s m a de by the appellant to the respondent regarding this sta te of affairs, the respondent sent its employee to attend to the appellant's protestation. What the appellant did not at that stage realise was that its complaint about the seemingly inflated \electricity bills would further compound its electricity billing position and lead to a complete withdraw of electricity supply to its premises by the respondent. Subse quent to the visit to the a ppellant's premises by the respondent's a gent or employee , the re spondent alleged that the appellant h a d tampe red with th e electricity supply metering equipment at its premises in such a manner as to make the meter underread the actua l eleytricity consumed by the appellant, thus resulting in a huge \loss of billable kilowatts of electricity on the part of the respondt nt. I The respondent disconnected power to the a ppellant's premises and ultimately demanded \ payment of the sum of K213,398,664.95, representing wha t i considered was the value of the lost kilowatts of electricity up tb August 2 007 . Over and a bove that sum, the r espondent also cnarge d the a ppellant an l l I J4 P. 231 1 additional Kl,750,951.19 which it called a fraud charge for the alleged meter equipment tampering. According to the appellant, its request that the respondent provides an account for the sum demanded, was not heeded by the respondent. The appellant claims t at although it was convinced that the respondent's invoice of K 13 ,398,664.95 was unjustified and extortionate, it settled the b il nonetheless under protest in order I to mitigate its business losse 1 • This followed a letter of demand from the respondent's advoc tes. Electricity to the appellant's business pre mises , which ha b een disconnected on 31 st August, I 2007, was not, however, re I onnected following the payment. This prompted the appellan \ to seek and obtain an ex-parte injunction on 17 th October, 20 , 7 r estraining the respondent from withholding power supply to he appellant's premises. That ex parte injunction was subsequrrntly confirmed following an inter partes hearing on 6 th Septem i r , 2013. Meanwhile, on 18th S . tember, 2007 , the respondent served on the appellant yet refle cting power consumption 1,nother invoice (No. 204738321) I I y the appellant of 109831 Kwh I JS P. 2312 for the period 1st August, 2007 to 1st September, 2007. The billed amount was K14,928,494.42. The appellant objected, pointing out that in its judgment, the invoice tendered was a replica of the earlier invoice No. 203745141 which the appellant had settled on 29th August, 2007. The appe lant received no response. According to the appell I , t, repeated requests were made to the respondent to justify the I ,'harge of K213, 398,664.95 but to no avail. It is these develop l nts that motivated the appellant to issue originating process i the lower court claiming: I I I (a) a declaration that the espondent refunds the monies paid m excess of the actual con umption by the appellant; (b) a declaration that the rel ondent 's invoice No. 204 738321 was a duplication of its earlier i voice No. 203745141; (c) a declaration that the \respondent's decision to charge the appellant the sum of K21 · ,398, 664. 95 was arbitrary and contrary to section 7 of the Elec ri.city Act, chapter 433 of the laws of Zambia; (d) an order that the respon ent renders an account of the sum of K21 3,398,664.95 charg d to the appellant on invoice No. 204597941 as August, 2 0 7 bill; (e) an order of specific pe }iormance of agreement No. 1094 955 between the appellant a I d the respondent for the supply of I electricity; J6 P. 2313 (f) an order of injunction restraining the respondent and its agents or employees from disconnecting the supply of electricity to the appellant's premises on the basis of the dispute invoice No . 204738321; (g) damages for breach of contract, interest and costs. The respondent's reaction to all these claims by the appellant was one of emphatic enial. Its position was that it discovered that the appellant 1ad tampered with the supply meter for electricity and thus pr ~eeded to disconnect electricity supply to the appellant's premis s. Before doing so, a meter test I' was done which assisted the r i s pondent to come up with the I total sum of K213,398,664.95, eing the re-billed sum together with Kl,750,951.19 being a l~raud billing charge for the tampering by the appellant of the metering equipment. The respondent maintains that payment of its electricity 1nvo1ces and any fraud ch ge is no guarantee for its continuation o e ectnc1ty supp ~ services. • f I . . . . I d t en1e a ot er . d h claims and allegations made , by the appellant and, or I I alternatively justified its actions 1y reference to the tampering of the electricity meter which it attr buted to the appellant. I I J7 P.2314 After hearing the parties and exam1n1ng the evidence deployed before him, the learned High Court judge dismissed the appellant's claim in its entirety, holding that there was no evidence from the appellant specifying the amount paid in excess of the actual consumption and hat, in any case, the appellant did not challenge the amount de anded by the respondent. As regards the issue of t e allegedly duplicated August, 2007 bill, the learned judge tre 1ted the matter as factual and preferred the respondent's evid :hce over that of the appellant, holding that there was no such The learned judge also de '.lined to grant the declaration I I sought by the appellant that the ·espondent's decision to charge I the plaintiff the sum ofK213,398,:664.95 was contrary to section 7 of the Electricity Act. He held t at the respondent was justified I to rebill the appellant using a 1ealistic estimate of electricity consumed fallowing the fraud ient activity of the appellant through its agent or employees, apparatus. If · · h h . tampenng wit I I t e metenng · J8 P.2315 The judge dismissed the appellant's prayer for an order that the respondent renders an account for the sum of K213,398,664.95 on the ground that the appellant had not protested, either in writing or otherwise , about this matter; the only complaint it made being tha1 the respondent was taking too long to reconnect the power sup ly after the payment. On the issue of specific pe formance of the power supply I I I contract, the learned judge held that it was a clear understanding of the parties t at the appellant was to be I supplied with electricity for as 1 ng as it paid for its electricity consumption and did not tamper with the respondent's meter. The judge also entered judgme against the appellant in the sum of Kl4,928,494.42, represer ing the outstanding amount for the September, 2007 bill. Al we point out later on in this judgment, the learned judge, Mlso treated this amount as damages awardable to the respon~ ent for the appellant's breach of the undertaking as to damages .et out in the injunction which, as we have stated already, had been granted against the I I respondent. J9 P . 2316 On the appellant's prayl r that the respondent fully compensates it for damage r uffered as a result of the disconnection of power supply to the appellant's premises , the learned judge held that the respondent was justified to disconnect power supply in vi tW of the appellant's action of tampering with the metering eqr ipment. Any business losses incurred, according to the judr e, was self-inflicted and the appellant could thus not claim y relief under that head. With respect to the I appell t's prayer for an injunction against the respondent for t I~ latter not to interfere or discontinue the supply of electri ity to the appellant's premises I on the basis of the disputed inv I ice No. 204 73821, the learned I judge reiterated his finding thal there was no duplication of invoices. He accordingly re-ech l d his holding that the sum of Kl4,928,492.42 was due to the interlocutory injunction the co I espondent. He discharged the I I tt had granted on 13th June, 2012. The judge's conclusion w 1s that the appellant had come to equity with soiled hands . He , ·eclined all the other relief that I the appellant had sought. JlO P. 2317 Unhappy with the High <Court judgment, the appellant appealed, fronting five grounds as follows: I. The learned trial judge misdirected himself in law and in fact when he found that the ~espondent acted within permissible grounds of law in line with section 7(2) of the Electricity Act to do an estimate based on scient r c and expert evaluation of the meter. 2. The learned trial judge mil directed himself in law and in fact when he found that the r spondent did not need to render a detailed account of how it a~ ved at the sum of K213,398, 664. 95 because the payment w1} made by the appellant to respondent Without protest r Writing OT otherwise. the 3. The learned trial judge mistlirected himself in law and in fact when he found that the pellant had not proved breach of contract against the weight if evidence on record. 4. The learned trial judge mi directed himself in law and in fact when he found that the loss rt business suffered by the appellant arising from the disconn Ttion of electricity supply by the respondent was entirely the !appellant's fault and as such it was the appellant who was in b ~ach of contract. I 5. The learned trial judge in th lower court erred in law and in fact when he awarded the res ondent the sum of K 14,928,494.42 I (unrebased) which was no lpleaded as a counter-claim by the respondent. Jll I P.2318 The appellant filed its headk of argument. At the hearing of the appeal, Mr. Chenda, learned counsel for the appellant, intimated that he was placing absolute reliance on those heads of argument. The respondent too, filed its heads of argument and Mr. Mulenga, learned counsel fo:r the respondent, confirmed his reliance on those heads. As regards ground one oft e appeal, it was contended on I behalf of the appellant, that the ower court fell into grave error in coming to the conclusion that t he respondent was justified to make an estimate based on what the court regarded as scientific evidence and expert evaluation If the meter and citing section 7(2) of the Electricity Act as juJlt fications for this. The court purportedly quoted this section I rbatim as follows: "Provided that if for any cause it as not been possible to read for any cause, or where a meter has no I been installed the corporation shall estimate the time consumed i I the previous three months due I allowance being made at the co p oration 's discretion for seasoned or other charges in the consumption ruse of e lectricity on those premises I or the locality." J12 P.2319 The learned counsel for the appellant made a technical argument, namely that the provision purportedly quoted by the learned judge, that is to say, section 7(2) of the Electricity Act, does not, in fact, exist. Consequently, the interpretation of the law and its application to findings of fact which the learned judge I l made, were erroneous. CounsJ l suggested that perhaps the correct provision which the cou t may have intended to cite is I section 7 of the Electricity Act w ich enacts that: "Subject to section eight, the c arge made by an operator of an undertaking that supplies electri ·ty to the public shall be determined in accordance with the license go eming the undertaking." The foregoing being the case, Mr. lChenda argued that section 7 I I formed the basis upon which the ppellant premised its claim for a declaration that the respon to charge the appellant K213,398,664.95 was ontrary to the Electricity Act. The holding by the court that the respondent had demonstrated that its estimates of the dispute! ! billed amount were based on i scientific and expert evaluation o ~he meter, anchored as it was, in a non-existent provision of th I law, was misconceived. We were thus urged to uphold groun~ one of the appeal. J13 P . 2320 In reacting to the appellan 's arguments regarding ground l one of the appeal, counsel for the respondent contended that the provision allowing the respondent's action is found in the Zambia Electricity Supply by-laws (the zf sco by-laws) made pursuant to section 5 of the Zambia Electdcity Supply Act, chapter 813 of the laws of Zambia and published in Government Gazette Notice I as No. 232 of 1990 and are still in force. Those provisions do empower the respondent, where \it is not possible to read the meter for any cause, to estimate the consumption by reference I I to average electricity consumptio by the affected consumer in the previous months. Mr. Mulenga submitted tha I although the lower court did cite a wrong Act in its judgn1e] t, the respondent had in its I submission made reference to L tion 7(2) of the by-laws to support its action regarding he estimated value of the appellant's electricity consumpti h. Counsel termed the citing of a wrong statute by the lower c0urt as a 'clerical error which does not go to the root of the mat er and the Judgment ought to . be amended under the slip rule.' !counsel urged us to dismiss I I I l I I l ground one of the appeal. J14 P.2321 We have considered the parties' respective positions on this ground. The substance of the appellant's argument is that the trial judge quoted and based his holding on a non-existent provision. The question is whether this affects the legal soundness of the conclusions that the judge arrived at. At the hearing of the appeal~ we sought clarification from I Mr. Mulengaon a number of issue~. This was in view of his claim that what the respondent alluded ~o in the lower court was not section 7(2) of the Electricity Act L which does not exist - but which the lower court nonetheless appeared to have quoted. The I I respondent instead claimed to kve referred to the Zambia I Electricity Supply by-laws. We as ! ed Mr. Mulenga to show us where, in the record of appeal, the r spondent is recorded to have referred the lower court to those -laws of 1990, made under the Zambia Electricity Supply Act chapter 813 of the laws of Zambia. He was unable to do so. At first, Mr. Mulenga graciously I I stated that he has never seen those \y-laws. Later, he contended that he had seen them and th \ ~ they are still valid and applicable. I I JlS P.2322 We also asked Mr. Mulenga whether, given that the current edition of the laws is 1995 with all the subsidiary legislation appearing as regulations in the schedules to the Act, the said 1990 by-laws are still applicable. He maintained that they were applicable. Beyond that statement, Mr. Mulenga did not develop the argument on the validity and continued application of the by laws. l We have addressed our min ~ to the issue of the provision of section 7(2) of the Electricity A It, chapter 433 of the laws of I Zambia, purportedly quoted by th, :learned trial judge and upon which he based his finding that t8 e respondent was justified to estimate the actual electricity cons ' med by the appellant during I I the relevant period. A perusal oft ~ Electricity Act as amended by the Electricity Act No. 21 of 2 ~ 3 , does indeed confirm Mr. I Chenda's submission that the lear ed judge did refer to a non- existent provision, namely the p ~ported section 7(2) of the I Electricity Act. Section 7 of the Elec ,ricity Act has no subsection and appears as quoted by Mr. Che 9-a in his submissions as we have earlier reproduced it. What co, pounds the misdirection is I I that the learned judge even purport · d to quote verbatim in his J16 P.2323 judgment a section that does not exist. Not only that, he refers to the same section repeatedly in his judgment. We have also examined Government Gazette Notice No. 232 of 2nd March, 1990 in which the Zambia Electricity Supply by laws 1990 made pursuant to t~ e Zambia Electricity Supply Act, chapter 813 of the 1971 ed ition of laws of Zambia, were I promulgated. The non-existe ! provision which was quoted by the learned judge below as bei gin section 7(2) of the Electricity I Act, chapter 433 of the laws o I Zambia, in fact, mirrors clause 7(1) of the 1990 by-laws. Wh ~ is worth noting is that under I , let, chapter 433 of the laws of section 31 of the Electricity Zambia, the Zambia Electricit Supply Act, chapter 813 of the I I laws of Zambia ( 1971 edition) as repealed and replaced. If it could, however, be de 'onstrated that the 1990 by-laws still subsist and are applicable, the mere fact that there was an erroneous reference as to the la in which the power to make the l applicable subsidiary legislatio ' resides, would not necessarily I be fatal to the respondent's pos lion. In the case of Shilling Bob I Zinka v. Attorney-GeneralOJ, this '.court held that regulations J17 P.2324 promulgated under incorrectly cited legislation did not invalidate the regulations if those regulations could in fact be made under another existing statutory provision. Here, we would be inclined to accept that if the power to make an informed assessme It of billable electricity where a meter reading could not be rel"ed upon or was unavailable, was vested in the respondent b some enabling legislation or regulation, it would be immate ial that a wrong provision or Act i I was cited. However, the Zambia Elec ricity Supply Act, chapter 813 of I the (1971) edition of the laws f Zambia pursuant to which the I said by-laws were passed was, h.s we have already pointed out, repealed by section 31 of the E l ctricity Act, chapter 433 of the current (1995) edition of the la js of Zambia. In terms of section 5 of .he repealed Zambia Electricity I I Supply Act, the Zambia Electri 1ty Supply Corporation (ZESCO) is specifically empowered to m f e by-laws, subject to approval by the Minister. It was unde I that provision that Electricity Supply by-laws 1990 were mad I J18 P. 2 325 In terms of section 30 of the existing Act, i.e. the Electricity Act, it is the Minister who is empowered to make regulations for the better carrying out of the provisions of the Act, and has in this regard, by Statutory Instrument made numerous regulations. Subsidiary legislat on made on various aspect of the Electricity Act are appended to We are not unmindful oft e provisions of section 15 of the Interpretation and General Pro isions Act, chapter 2 of the laws of Zambia, which allows for cont nuation of subsidiary legislation I t I made under repealed legislation I The section provides that: Where any Act, Applied Act or I rdinance or part thereof is repealed, I any statutory instrument issue4 \under or made in virtue thereof shall remain in force, so far as it is i ~onsistent with the repealing written law, until it has been repealed 'py a statutory instrument issued or made under the provisions of sua:~ repealing written law, and shall be deemed for all purposes to have ~een thereunder. were expressly repealed by a sta The test then becomes one 'f whether the by-laws of 1990 I tory instrument issued by the I Minister under the Electricity Act , or whether they are otherwise inconsistent with the Electricity \ct. This is the argument that we would have expected Mr. Mule ga to have developed and J19 P.2326 driven home to our satisfaction. As we lamented earlier on, he did not do so. Unsurprisingly, given Mr. Chenda's line of argument on this point, he did not come anywhere close to pursuing this argument either. What appears clear to us s that the Electricity Act does not, I m fact, empower any elect lcity generating and supplying I company to make by-laws, a indeed the whole Act does not I make reference to by laws. Thi in itself does not, however, mean that the by-laws of 1990 Furthermore, a review of t e inconsistent with the Act. l regulations made under the Electricity Act does not show y single provision that revokes or repeals the 1990 by-laws. I I these circumstances, we are inclined to agree with the learn d counsel for the respondent that the 1990 by-laws are still vali and applicable. The respondent's reliance on them to make an estimate of the power consumed was thus justified. Ground one of the appe is therefore bound to fail and we dismiss it accordingly. J20 P.2327 Under ground two of the appeal, the appellant's contention 1s effectively that the learned High Court judge misdirected himself when he found that the respondent did not need to render an account of how it arrived at the sum of K213,398,664.95 because td e payment was made by the appellant without any protest ither in writing or otherwise. Counsel submitted that t j evidence on record shows to the contrary, that the appellant p id under protest as it had on the I 19th September, 2007 requeste I the respondent for a breakdown of how the sum of K213,398,6 4.95 for the appellant's August, 2007 account was arrived at. The demand for a breakdown of that sum was, according to co sel for the appellant, made long before the court proceeding commenced. Electricity was disconnected without warnin resulting in huge loses being incurred by the appellant in its bakery business. In these circumstances, the appellan was forced to pay the sum demanded by the respondent 1n the hope that the respondent would forthwith restore power. J21 P.2328 We were in this connection referred to two letters dated 11 th September and 19th September, 2007 respectively from the appellant's lawyers to the Legal Counsel and the Managing Director respectively, of the respondent. The first of these letters stated in part that: "Your Commercial Manager h d expressly undertaken to reconnect supply within 5 minutes of o f client settling the K213,398,664.95 demanded of him on account o ,fines, penalties etc. which payments we assume atoned for all the w t ngs allegedly committed by our client. It was in fact on the strength ot this undertaking by your Commercial Manager that our client agreed , p settle the money demanded without questioning how you arrived at he assessment. .. " The later letter states in part: "We also are instructed to de and a breakdown of how you arrived at the sum of K213,398,664.9 billed to our client purportedly as the lient has nonetheless settled. This August, 2007 bill which our amount appears to have been a ii ·ved at arbitrarily by your Commercial Manager and is over and abo Je the actual consumption and fraud charges slapped on our client." ~ Counsel called our attention to some items of evidence given in the lower court appearing in th I record of appeal with a view to showing that the business posit' In of the appellant was dire; that the appellant in truth only had Hobson's choice regarding J22 P.2329 paying the sum demanded by the appellant, and that there was in fact no scientific method employed in coming up with the K213,398,664.95 declared as due. The court, therefore, misdirected itself in determini g that the appellant accepted without protest to pay the said sum. Ground two should, accordingly to counsel, succeed. The respondent reacted to e arguments under ground two I by maintaining that the lower ourt was right to hold that the J1 K213,398,664.95 was paid by tjhe appellant to the respondent ' I without protest on its part 1or through trickery on the respondent's part. It was sub ·:tted that an audit of the meter I was done by the respondent at the appellant's premise s which confirmed a considerable redu tion in the appellant's power consumption by two thirds. I · In these circumstances, the respondent had the option of eit er prosecuting the appellant or I rebilling it. The latter course wa 1taken after both parties agreed. l I The process of re billing involve Ian estimate of an average cost of K14,000.00 per month for 5 months. According to the respondent, this charge was not f1-rbitrary but was based on J23 P.2330 comparative data of actual cdnsumption reached using the charges approved by the regulator. The learned counsel then quoted section 7 of the ZESCO by-laws of 1990 which we have earlier referred to. His conclusion was that the respondent was rigl t to make the assessment of the consumption of power by the ppellant. We were urged to dismiss ground two of the appe I ;. I In our estimation, the ques ,on under this ground of appeal I is whether there was, in the fir t place, any need to render an account; if yes, whether such account was rendered. If not rendered, whether the reason rJ! failure to render it was legally I I justified. I I Whether or not the respond nt was obliged to justify its bill when called upon to do so is, in L r view, a question which goes I beyond mere contractual or sta tory provisions applicable to the two parties. We are here de ling with a government owned, strong, sector dominant body n one hand and a weak and I I vulnerable consumer on the oth ~ hand. This is a reality which h . t 1s court cannot ignore 1n its q est to o Justice to t e parties. d h · · · · · · I J2~ \ P.2331 Public utility institutions shch as the respondent, which I respects al monopoly service, ought to be h prov1 e w at 1s, 1n a · ·d · · above board in determining their charges and in their dealing I with consumers generally. We take judicial notice that the respondent is a parastatal body, government-own. Being a monopoly institution backed by J atute - the respondent enjoys a significant measure of advanta s fashioned for its protection. The respondent's conduct sh , ld I therefore fall along a continuum of transparency and rJ ponsibility to individuals and society - the whole electricity con~uming public - deriving from its parastatal and proprietary fun1 tions. The monopoly position of the respondent in itself mak s the consumer vulnerable. Additionally the many statutory s eguards in the Electricity Act designed to ensure the smooth pro ision by the respondent of its services, coupled with the provisi s meant to deal with errant consumers of electricity supplied y the respondent, puts the respondent firm in a position of ne absolute privilege. In these circumstances, it is not too much o ask of an entity occupying market dominance in the manner hat the respondent does, to be responsive to individual custom s, and accord a smidgen of J25 P.2332 respect to electricity consumers no matter how insignificant such customers may appear to be. Although the learned judge in the court below held that the payment of K213,398,664.95 was done without protest on the part of the appellant, the acts on record reveal quite the opposite. On 11th Septemb , r 2007, a letter was written by Messrs Simeza Sangwa & Ass ciates on behalf of the appellant, explaining the basis upon which the payment was made by the appellant of the K213,398,664 95. On 19th September, 2007, the appellant through a letter, a .'.ain written on its behalf by its I advocates, did request the res , ondent to provide a breakdown of I how it arrived at the dispute figure of K213,398,664.95. We have already reproduced port ons of those letters earlier on 1n I I • • this judgment. The appellant's explanar n, as we decipher it from the record, particularly from the 10 letters we have lately referred to, was that payment of the Jpunt demanded was forced upon it. In consideration of its bu iness interests, and in order to · · m1t1gate its osses, 1t ma t t e sat ~ \ h · · ·d payment on h t e understanding that power wou ~ be restored immediately after I J26 P.2333 effecting the payment. The learned judge does not appear to have taken this into account, adopting instead the approach that the appellant's conduct justified the respondent's action. Clearly, the holdmg by Te lower court that the appellant • I willingly paid the sum of K2 3,398,664.95 is contrary to the evidence on record. It is a fin ing which finds no support in the evidence deployed before the C ,r rt and just as little in logic. The respondent demanded an r xplanation of the sum of K213,398,664.95. The responl nt should have given an account of how it came up with that su '. . I The respondent also c ged the appellant a sum of I Kl ,750,951.19 which it termed ~s a fraud charge. At the hearing I ienga to explain the legal basis of the appeal, we asked Mr. M for this fine or penalty. He l s unable to do so and in fact f 11 grace u y conce e I I such penalty though it was i posed by the respondent as a I I that t ere as no ega prov1s1on sanct1on1ng d d . . h I . . deterrence measure. J27 P.2334 While the respondent is entitled under section 9(b) of the Electricity Act to discontinue the provision of services to a consumer who breaches the conditions upon which power is supplied, it is not for the respondent to arbitrarily impose punitive measures over an a ove w at 1s owe to 1t 1or services • d1\ h . d ·c- .. already provided. Under Part V of the Electricity Act there are criminal sanctions prescribe for interference with electricity supply and for tampering with the suppliers apparatus. They do not include arbitrary charges uch as the one imposed on the appellant by the respondent. It is thus not in the dom ·n of the respondent to mete out punishment or charge fines for any breach of contract or transgression of the provisions of the Electricity Act. There is an orderly way of redressing any \ontractual or statutory violation of obligation by a consumer. fan entity is allowed to charge penalties without any statutory acking there is a real danger for that entity to introduce l bitrariness extravagance and unconsciousability and to pass bn the cost of its inefficiencies to the consumer under the guise o penalties. J28 P. 2335 Ground two has merit, and it is upheld accordingly. The respondent is ordered to render a satisfactory account of how it arrived at the sum of K 213,398,664.95 within thirty days from the date hereof failing which it should refund the said sum to the appellant. The fraud charge ofKl,75 ,951.19 should never have been I imposed in the first place. We s~ all under ground three and four deal with the appellant's claim ~ at it was not involved in meter tampering. Whether or not , the appellant is right in its I explanation, the charging of a fi 'e or penalty which is not backed by the law, was illegal. The r ' spondent is hereby ordered to I I refund the money paid to the : ppellant as a penalty of fraud I charge forthwith. The appell · t shall, unless some other acceptable arrangement for ere tting the appellant with the said amount is agreed, be entitled to ecover same as a liquidated civil I debt. Turning to grounds thre and four of the appeal, the appellant's argument was tha I had the learned trial judge I properly directed himself, he w uld, on the evidence available, not have held that the appellant had not proved a breach of I I J29 P.2336 contract by the respondent, and that he would likewise not have concluded that the appellant's loss of business was entirely of the appellant's own making. The learned counsel went o considerable lengths to explain what a breach of contract en ails before submitting that the respondent was in breach of it obligation to supply electricity when it did not reconnect p I iWer supply to the appellant's premises following the settleme t by the appellant of the invoices I ' presented to it. It was not, accor ing to counsel for the appellant, I the appellant who was in bre 1ch of contract but rather the I respondent. He quoted section i9 of the Electricity Act which I enacts as follows: I "Except for causes beyond the co trol of the operator of an undertaking, I and subject to any regulations pde under this Act, no operator shall lessen or discontinue the supply if e lectricity stipulated in any contract of supply unless:- I I (a) the consumer has fa ~e d to pay charges lawfully due in terms of the condition I of supply or the agreement, as the case may be; or I I l J30 P.2337 (b) the consumer has f ailed to comply with conditions of supply or the regulations arid f ailed to remedy the def a ult within seven days of receiving, from the operator of the undertaking, a notice served on the consumer in accordance with section twenty-nine calling upon the consumer to do so." Mr. Chenda submitted that the tnport of this provision is that a supplier is only entitled to disco tinue supply where the charge is lawfully due but has not bee \ paid. In the present case the charge of K 213,398,554.95 w k arbitrary and unlawful and I could not form the basis of discon ) nuance of supply of electricity l I to the appellant. Mr. Chenda also advanc d the argument regarding compliance following a notice of d e ult. The gist of his argument was that the Electricity Act allo a supplier of electricity to discontinue electricity supply wh with the conditions of supply an re there is failure to comply \ I \ the consumer has failed to remedy the default within seven d ~ s of receiving the notice. In the present case, the appellant di .lonnected power supply on I the day it issued the notice to the a : pellant. I I J31 P.2338 Mr. Ch end a then sought to show that available evidence did not confirm any meter tampering on the part of the appellant. He stressed that the respondent did not lead any cogent evidence to show that the appellant had in fact tampered with the meter. The respondent's respons to the arguments on grounds three and four was rather brief and to the point. First, it was I submitted that the respondent ~d tendered into the trial court evidence confirming that the me ler at the appellant's premises was running in reverse as a res I t of a clear instance of meter I I I I tampering. The appellant agree \ to have his account re- billed rather than be prosecuted. Whe the appellant was served with I the September, 2007 bill (No. \ 204738321) amounting to Kl4,928,494.42, he refused it, leading to the . . f d isconnection o power supp y at :1s premises. I I. . Counsel for the respondent quoted section 7 of the ectncity ct, w ic we ear ier rep 10 uce in t is JU gment. d . h' . d . . A h' h 1· H e El also quoted clause 5(2) of the ZE CO by-laws of 1990 which t I settle \\ d I l reads as follows: \ J32 P.2339 "The corporation may without prejudice to any right or action or other remedy open to it, disconnect the supply to a customer's premises on a number of events which in particular section 5(2)(!) include tampering or interference of any of the ! plant or apparatus belong to the corporation's network." The learned counsel furthermor I of the Electricity Act which p r ohibits con su mers from altering, I adjusting, handling, operating, tampering or interfering with the referred us to section 9(3)(iv) property of the undertaker. For he respondent, this provision, together with the others referred o, interpreted in the light of the evidence of tampering with the I etering equipment, meant that I the respondent was aptly justifie in its actions. I We have no misgivings wh a oever in holding that grounds three and four have no merit. Ti e finding by the lower court I that the appellant had tampere \with the metering apparatus I was one of fact. We have stated t me and again that this court, I as an appellate court, is loathe t \\disturb findings of fact made by a trial court which had the pri · ege of hearing and seeing the I witnesses first hand and making a credibility assessment. The cases of Attorney-General v. Marcas Ac iume2 and Examinations council of Zambia v. Reliance Technology Limited3 e a uthority for that position. J33 P.2340 There was no attempt, not even a feeble one, on the part of the appellant's learned counsel in arguing this ground, to demonstrate that the findings of fact by the trial judge were perverse and not borne out of the evidence adduced, or were so glaring in their defiance of logic that a trial court, properly directing its mind to the evidenL could not have made those findings. Above all, there is admiJ ion by the appellant that there was tampering of the metering eq \ ipment which resulted in the \ meter under-reading the power \consumed. Such tampering amounts to a breach of the power upply contract which entitles the respondent to discontinue fi ,~thwith (without notice) the power supply service under sectio 19(2) of the Electricity Act and I the 1990 by-laws. As the respondent was entit ed to discontinue the power I supply service on grounds set fort \ above, it follows that losses arising from such disconnection s ~uld lie where they fall. The I claim for compensation was thus ri '.htly rejected. Ground 3 and I I 4 have no merit and they are dismi . \sed accordingly J34 P.2341 Under ground five of the appeal, the appellant's grievance was with regard to the sum of Kl 4, 9 28,494.42 awarded by the lower court judge to the respondent. It was contended by Mr. Chenda that it was wrong for the lower court to have awarded this sum to the respondent when the same was not claimed by the appellant in its defence and co te r claim. In its response, the respon l nt submits that one of the I appellant's claim in its statem h t of claim was that the September, 2007 bill wa s a replica of the August bill hence the appellant's refusal to pay it. How ver , the evidence on record I I I I shows that the two bills related to p different billing cycles and therefore, the said amount remaine I r utstanding as a debt owed to the respondent. The respondent further subm ~ted that it was unable to ' secure payment of that sum because : f the injunction which was obtained by the appellant. Under th t injunction the appellant had made an undertaking to p ay d artla ges in the event that the I s a consequence of the respondent suffered any damage injunction. J35 P . 2342 The learned trial judge dealt with the issue of the K14,928,492.42 1n a somewhat confusing manner. He considered this amount as representing the September 2007 bill which he held was not a duplication of the August 2007 bill. He further found that this amouJ could not be recovered owing to the injunction which the appellant had secured against the respondent. Under that injun tion, the appellant had made an undertaking as to damages. Tlie court concluded that: The plaintiff having underta~en to pay all such damages as the I defendant may suffer becau+ of the injunction, I hold and find that the defendant has suffered the loss of the said .. .. . . . and I enter judgment in the sum of K 14 928,494.42 with interest at short bank term deposit rate from the d Jte of the September 2007 bill up to the date of the judgment debt t~ereafter interest to run up to date of payment. [sic!] Probably motivated by t e zeal to stymie delay that would result by insisting that the respondent should make a specific claim for what it regards a ~ outstanding in respect of the September 201 7 bill, the le~ ned judge made an order which violates a fundamental rule of civil procedure, namely that I evidence can only be consi ered where a plea which that evidence supports has been p t forward in the pleadings. A court I I I J36 P.234 3 is not to decide on an issue which has not been pleaded. Put differently, a court should confine its decision to the questions raised in the pleadings. It can thus not grant relief which is not claimed. Litigation is for the parties; not the court. The court has no business extending or expa ding the boundaries of litigation beyond the scope defined by i.e parties in their pleadings. In other words, a court has no jurisdiction to set up a different or new case for the parties. We agree with Mr. Chen a that by taking this somewhat proactive approach in regard to the sum of K 14,928,494.42, the judge fell into error. As pointer out. by the appellanf s learned counsel, the respondent did n bt claim this sum in its counter claim although the natural imp cation of the finding by the court I that the September bill was no a duplication of the August bill, was that the bill was pending s tettlement by the appellant. It was up to the respondent to recoveV it in the best available manner. We reiterate that it is not the ro of the judge to grant liquidated sums of money which are not _nleaded by a party. Ground five of the appeal succeeds. J37 P. 2344 The net result is that this appeal partially succeeds . Grounds 1, 3 and 4 fail for reasons we have articulated while grounds 2 and 5 succeed. For the avoidance of doubt, we hold that the respondent should render a proper accoun as to how it came up with the I disputed bill of K 213,398,664.95 within 30 days of the judgment, failing which the saidl sum shall be recoverable by the appellant. It should equally refup d the penalty or fraud charge it levied the respondent in the s Im of K 1,750,951.19. We also reverse the judgment entered in the sum of K 14,928,449.42. Each party shall bear its o n costs. ~ ·······~~~ ............. . M. MALILA __.-- SUPREME COURT JUDGE