The consortium, known as Corisco Design Team (Codet), had
appealed against a High Court decision that rejected its claim for US$16 175
740, being fees allegedly owed to it by ZimSun for the services of
architectural designs in terms of an agreement between the parties for the
construction of the Equatorial Guinea hotel.
But three judges of the superior court ruled that the
consortium could not sue the hotelier in terms of a contract it was not privy
to, finding the appeal hopeless.
ZimSun, also known as African Sun Leisure (Pvt) Ltd, had
acted as an agent for the government of Equatorial Guinea and sought
consultancy services from Codet to build two hotels and a tourism training
school in that country.
This was after President of the Equatorial Guinea Teodoro
Obiang Nguema Mbasogo, while on a State visit to Zimbabwe sometime in 2006, was
accommodated at Elephant Hills Hotel in Victoria Falls and was impressed by its
majestic architectural design and quality of service, and desired to have a
similar hotel constructed and run on the same standards in his home country.
Codet claimed that ZimSun engaged them in April 2007 as
consultants for the purposes of designing and developing hotel and training
school buildings for the Equatorial Guinea government.
The consortium further argued that ZimSun had instructed
them to prepare architectural, engineering designs, technical documentation and
all other project designs and documentation, adding that the hospitality group
also instructed Codet to meet the project costs relating to the development of
the hotels.
A contractual dispute arose with Codet suing ZimSun at the
High Court in 2018 and lost, prompting the consortium to take the matter up the
appeal loft ladder in a bid to overturn the lower court’s decision.
But a three-judge panel of Justices Elizabeth Gwaunza,
Tendai Uchena and Samuel Kudya, tossed out the appeal on the grounds that it
could not sue in terms of a contract which it was not privy to.
“The appellant (Codet) failed to establish a prima facie
case against the respondent and there was no evidence upon which a reasonable
man could find for it,” said Justice Uchena writing the judgment of the court.
“The court a quo (High Court) correctly granted the
respondent’s (ZimSun) application for absolution from the instance.”
The court also ruled that the lower court correctly
exercised its discretion when it ordered Codet to pay ZimSun costs on the legal
practitioner and client scale.
ZimSun, through its lawyer Advocate Thabani Mpofu, had
sought costs on the legal practitioner and client scale.
It was the court’s view that the Codet represented by
Ozywell Manyara pursued a hopeless appeal fully aware that the deal entered
into by the parties did not entitle the appellant to make any claims until the
government of Equatorial Guinea had approved the project.
In spite of being fully aware that the government of
Equatorial Guinea had not approved the project, Justice Uchena said Codet noted
and pursued the hopeless appeal against ZimSun.
ZimSun had denied ever entering into an agreement with
Codet.
The hospitality company argued that Codet had no right to
claim any payment from it and that the work done was carried out at the
parties’ risk.
According to ZimSun, payment would have been made upon
approval of the designs which apparently were rejected by the Equatorial Guinea
government on the basis of high costs.
ZimSun denied hiring Codet as alleged.
Codet legal counsel, Advocate Lewis Uriri, argued that his
client, in terms of the High Court Rules of 1971, fitted well within the
definition of an association, whose associates can sue in the name of the
association.
He said although
Codet was an unincorporated association, it was properly before the court,
arguing that the correct position was that while it was true that
unincorporated associations as Codet had no legal persona, contracts made or
purportedly made by unincorporated associations were not mere nullities,
especially where the person who signed the contract had the express or implied
authority of some or all the members of the association as in the pesent case. Herald
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