HARARE – A consortium of local architects, surveyors, and engineers have lost their bid to get hotel chain ZimSun Zimbabwe to pay them US$16 million over a botched deal to construct two hotels in Equatorial Guinea.

The consortium, known as Corisco Design Team or CODET had already lost the claim at the High Court before “pursuing a hopeless appeal… which has no merit” at the Supreme Court.

Supreme Court justices Elizabeth Gwaunza, Tendai Uchena and Samuel Kudya slapped the witness who chose to represent the consortium in the case with costs.

“I am of the view that the appellant represented by Ozywell Manyara pursued a hopeless appeal fully aware that the agreement entered into by the parties did not entitle the appellant to make any claims until the government of Equatorial Guinea had approved the project,” Justice Uchena said in the November 3 judgement, with Gwaunza and Kudya agreeing.

Uchena said Manyara took a risk of being ordered to pay costs on behalf of CODET, a company yet to be registered.

“The appeal has no merit. It is accordingly dismissed with costs at the legal practitioner-client scale to be borne personally by Manyara.”

CODET had issued summons against ZimSun in the High Court demanding 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.

ZimSun, also known as African Sun Leisure (Pvt) Ltd, had apparently 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, according to court papers, was after President 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 so impressed by its majestic architectural design and quality of service that he 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 hotels 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.

However, ZimSun – represented by Advocate Thabani Mpofu – filed its opposing papers denying 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.

Payment, according to ZimSun, would have been made upon approval of the designs which apparently were rejected by Equatorial Guinea’s government on the basis of high costs. The project estimate was US$300 million.

The Supreme Court judges said: “There is nothing on record to prove that CODET entered into an oral agreement with ZimSun. The written agreements did not prove the existence of the contract given that ZimSun did not sign them. An inference can be drawn that ZimSun did not sign the documents because it was not in agreement with the terms contained therein.

“ZimSun alleged that it engaged CODET to provide services in the event the project it intended to embark on was approved by the government of Equatorial Guinea… Approval by the government of Equatorial Guinea was a condition precedent in the agreement between ZimSun and CODET.”

The judges also said because the initial agreement was between ZimSun and the Equatorial Guinea government, CODET “as a company yet to be formed was not privy to the initial contract and could not seek specific performance against ZimSun.”

“In light of the above, the appellant could not sue the respondent in terms of a contract it was not privy to. The appellant failed to establish a prima-facie case against the respondent and there was no evidence upon which a reasonable man could find for it,” the judges said.

Advocate Lewis Uriri appeared for CODET.