CAVENDISH UNIVERSITY – ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

108-886
STUDENT NO
COMMERCIAL LAW
MODULE:
Mr Emmanuel Kaluba
LECTURER:

MODULE CODE: CUZL 312

ASSIGNMENT NUMBER: 1

DATE HANDED OUT: 23 August 2023

DATE DUE IN 15 September 2023

DAY/EVE/DL: Distance Learning

ASSIGNMENT BRIEF

Details for the Assignment

(Tutor: - please tick as applicable)

SL ASSESSMENT SKILLS Please Tick

1 Good and adequate interpretation of the question

2 Knowledge and application of the relevant theories

3 Use of relevant and practical examples to back up theories

4 Ability to transfer and relate subject topic to each other

5 Application and use of appropriate models

6 Evidence of library research

7 Knowledge of theories

8 Written business English communication skills

10 Self assessed ‘time management’

11 Evidence of field research

Tutor’s Marks contribution

(Administrative only)

LECTURER’S FEEDBACK
LEGAL ADVICE

ISSUES:

1. Whether Favourite Chickens Limited (Restaurant) can be criminally liable for the acts or
omissions of Idiot Phiri.
2. Whether Favourite Chicken Limited (Restaurant ) can bring any recourse against Idiot
Phiri

RULE OF LAW:

An agency is a relationship which exists between two parties where one party known as the
Principal delegates power expressly or impliedly to another person or party known as the Agent
to act or assume the legal position 1. The agency relationship is established by either express
appointment or by operation of the law.

The express appointment requires the consent of both the principal and the agent and normally
takes the form of a contract. In the case of Chaudhry v Prabhakar,2 it was held that

“Acting out of friendship and without payment does not preclude the existence of an
agency hence, it is imperative to note that an agency can therefore exist even in instances
where there is no consent or arrangement between the parties. Consent may arise
through various means, when agency arises other than by express appointment, it is said
to arise by the operation of the law”

An agent affects the legal rights of the Principal by making sure that the contract discloses the
interest and names of the Principal on whom he is acting on behalf. The agent may sometimes
make the principal criminally liable.

In Zambia, the Competition and Consumer Protection Act3 protect the rights of consumers and
this Act aims to protect consumers against unfair trade practices

1
https://www.lawteacher.net/free-law-essays/commercial-law/defining-the-agency-relationship-commercial-law-
essay.php#ftn1 accessed on 5 September 2023 at 12:13pm
2
[1989] 1 WLR 29,6
3
No 24 of 2010
Section 45(a) of the Competition and Consumer Protection Act provides for the definition of
unfair trading practice. The provision reads as:

A trading practice is unfair if-

(a) It misleads consumers;

Section 46 (1) (2) of the Competition and Consumer Protection Act provides that:

“(1) A person or an enterprise shall not practice any unfair trading.

(2) A person who, or an enterprise which, contravenes subsection (1) is liable to pay the
Commission a fine not exceeding ten per cent of that person's or enterprise's annual turnover or
one hundred and fifty thousand penalty units, whichever is higher”.

Section 47 (b) (I) of the Competition and Consumer Protection Act provides that:

(b) makes a false or misleading representation concerning :

(i) the price of any goods or services; is liable to pay the Commission a fine not
exceeding ten per cent of that person's or enterprise's annual turnover or one hundred
and fifty thousand penalty units, whichever is higher.

Section 51 of the Competition and Consumer Protection Act provides that

(1) A person or an enterprise shall not charge a consumer Price display more than the
price indicated or displayed on a product or service.

(2) A person who, or an enterprise which, contravenes subsection (I) is liable to pay the
Commission a fine not exceeding ten per cent of that person's or enterprise's annual
turnover

ANALYSIS

1. Whether Favourite Chickens Limited (Restaurant) can be criminally liable for the
acts or omissions of Idiot Phiri.
 The vicarious liability model of corporate criminal liability allows a corporation to be
convicted of a criminal offence by imputing the acts reus or performance of a legally
prohibited act of an individual to a corporation4. In Canadian Dredge & Dock vs. R5 in this
case it was held that:

“A corporation liability is derived from the fault of its employee, officer or agent”

About the herein issue of Idiot Phiri who was employed by Favourite Chicken Limited
(restaurant) as a marketing agent and in the course of his employment, the sales manager
instructed him to update the new princes of the two chicken pieces, salads and French fries. Idiot
upon receiving the instructions given by the sales manager unintentionally updated the catalogue
for the month of February 2023, which was bearing old prices. Per the facts at hand, Idiot obeyed
the instructions, given to him by his boss, and when posting the adverts he was in the course of
employment. This puts the favourite chicken vicariously liable for the wrongful act or omission
of Idiots during the ordinary course of business in Dubai Aluminium Co Ltd v Salaam6 The
House of Lords held that “as a point of law, whether the conduct of an employee occurs during
the “ordinary course of employment” is to be given an “extended scope” (para. 22) as the
underlying legal policy of vicarious liability recognises the risks borne by business enterprises to
third parties, and that when “those risks ripen into loss, it is just that the business should be
responsible for compensating the person who has been wronged.” (para. 21). The fact that the
partner’s conduct was not authorised by his co-partners and the personal innocence of the co-
partners thereto is not relevant to their vicarious liability the partner was acting in his capacity
as an employee of the firm when he aided in drafting the consultancy agreement and other
documentation. Thus, the firm was held vicariously liable for the damages borne by the
partner’s dishonest assistance”.

Similarly, in Lloyd vs. Grace Smith & Company7 in this a solicitor's clerk was held to have
acted within the scope of his employment when he fraudulently induced a client to convey
properties to him. As the clerk was paid to do conveyancing, he was within the
course of employment.
4
Jennifer Bwalya “An analysis of Legislation on corporate criminalisation and criminal sanctions in Zambia” 2019
on page 45
5
(1985) 1 SCR 662 at 20
6
[2002] 3 WLR 1913
7
1912 AC 716
Furthermore, the acts or omissions of idiots by sending the wrong information to the consumers
were contrary to Section 46(1) (2) Competition and Consumer Protection Act, which prohibits
unfair trading practices. Additionally, the act of idiot was contrary to Section 47(b) (1) for false
or misleading representation of goods or services by way of attaching a catalogue for February
2023, which was bearing old prices. Placing advertisements in Zambezi Daily Mail was
misleading the public on the price of goods and services offered by the restaurant, contrary to
Section 51(1) (2) of the same Act.

2. Whether Favourite Chicken Limited (Restaurant ) can bring any recourse against
Idiot Phiri

Favourite Chicken Limited (restaurant) can bring a recourse against Idiot Phiri for his acts and
omissions, which led the restaurant to be criminally liable. Since there was the existence of a
contract between the idiot and the restaurant, it means that the employers can bring a course for
damages under the law of contract. However, under agency when one party violates the duty, the
remedies for the breach of that agreement arise from the contract. The remedies include
damages, termination of agency etcetera8. The damages are available only to a principal, third
party and agent. In Deep Sea Fishing and Ice Co v Fernham9 it was held that:

“Where an agent commits a serious breach of duty, the agent can be dismissed by the principal.
In addition, the principal can commence an action in tort instances where the agent commits a
tort of conversion or sue for damages if the agent commits a pure breach of contract”.

Furthermore, in Turpin v Bilton10 in this case Bilton (agent) was instructed by Turpin (principal)
to insure a ship against ‘the perils of the sea’. Bilton failed to obtain insurance and the uninsured
ship (in transit from Newcastle to Rio de Janeiro) was lost at sea following a storm. Turpin sued
for damages. It was held that Bilton was in breach of contract in not obtaining insurance.
Ordered to pay damages to compensate for the loss.

CONCLUSION

8
Reloy. R.M and Jentz G.A Business Law (New York; West Publishing company, 1988) p. 67
9
(1957) 2 ALL ER 204
10
(1843) 5 Man & G 455
The offence, which the restaurant is being charged with, is a statutory offence created by the
Statute and such offences are strict in that they do not require proof of mens rea in the form of
intention, recklessness, knowledge or even negligence. All that is needed is proof of actus reus.
In this case, the restaurant is vicariously liable for the criminal acts of idiot Phiri, committed in
the course of employment. Furthermore, it is an offence for a trader under the Competition and
Consumer Protection Act to advertise goods or services if the advert is likely to mislead the
public because Consumers make purchasing decisions acting on product and service information
available.

The restaurant is entitled to bring the course against Idiot Phiri for breach of Contract because
idiot did not execute his duties with due diligence as required by a reasonable man. The remedy
available is a suit for damages.
BIBLIOGRAPHY

STATUTES

Competition and Consumer Protection Act No. 24 of 2010

CASE LAWS

Chaudhry v Prabhakar [1989] 1 WLR 29, 6

Canadian Dredge & Dock vs. R (1985) 1 SCR 662 at 20

Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913

Lloyd vs. Grace Smith & Company 1912 AC 716

Deep Sea Fishing and Ice Co v Fernham (1957) 2 ALL ER 204

Turpin v Bilton (1843) 5 Man & G 455

BOOKS

Jennifer Bwalya “An analysis of Legislation on corporate criminalization and criminal sanctions
in Zambia”

Reloy. R.M and Jentz G.A Business Law (New York; West Publishing company, 1988) p. 67

SITES

https://www.lawteacher.net/free-law-essays/commercial-law/defining-the-agency-
relationship-commercial-law-essay.php#ftn1 accessed on 5 September 2023 at 12:13 pm