Wednesday, 10 November 2021

HOPELESS APPEAL : SUPREME COURT DISMISSES US$16M LAWSUIT

A CONSORTIUM of local architects, surveyors and engineers’ has lost a US$16 million claim in outstanding consultancy fees against ZimSun (Pvt) Ltd for the construction of an upmarket Equatorial Guinea hotel, as the suit is legally unsound to warrant the court’s interference, the Supreme Court has ruled.

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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