Table of Content
1. court's findings on the high court's determination. (Para 19)
2. determining whether technical expertise was adequately represented in court. (Para 20 , 34 , 39)
3. defendants' argument centered on technical failings. (Para 21 , 28)
4. conclusion on failure to provide expert evidence. (Para 50)
5. failure to provide necessary expert evidence undermines assumed successful fulfillment of contract obligations. (Para 52)

(1) The defendants' witnesses lacked expertise and technical knowhow despite holding senior management positions in the 1st defendant and being involved in the project. (See para 57 of the Judgment of the High Court).

(2) The plaintiff's witnesses, PW2 and PW3 demonstrated that they had the technical expertise and knowhow of the working of the Project. (See para 58 of the Judgment of the High Court).

(3) The plaintiff's evidence that the POC was a stand-alone system was to be preferred over the defendants' contention that the POC was an end-to-end broadcast solution. (See para 59 of the Judgment of the High Court).

(4) Versions 3.8(a) and 3.8(b) are different. (See para 61 of the Judgment of the High Court).

Findings Of The Court Of Appeal

[19] The Court of Appeal affirmed the decision of the High Court and dismissed the defendants' appeal. The learned judges of the Court of Appeal in their judgment stated that the crucial issue raised in the case was, what was the correct test protocol to be used: version 3.8(a) or version 3.8(b). (See para 53 of the Judgment of the Court of Appeal).

[20] The Court of Appeal took note of the learned High Court Judge's finding that the plaintiff's witnesses, PW2 and PW3, demonstrated that they had the technical expertise and knowhow of the workings of the Project. This led the Court of Appeal to affirm the decision of the High Court and to hold that the test protocol version 3.8(b) utilised was not mutually agreed to by the parties and that it was substantially different from version 3.8(a) and that thus the plaintiff was entitled to reject the test results of the test protocol of version 3.8(b).

Submissions Of The Defendants

[21] The learned counsel for the defendants submitted that the plaintiff was supposedly the expert who would solve the problems faced by the 1st defendant in its digital broadcasting. The main point in the case before the High Court was whether the plaintiff had solved the problem that it was engaged to remedy. What this meant was whether the POC SAT had been achieved.

[22] It was the contention of the defendants that the issues raised before the Court were admittedly of a technical nature. The learned counsel for the defendants submitted that the learned High Court Judge did not direct parties to lead expert evidence on the technical issues. Parties were left to determine the nature of their evidence thought sufficient to establish their respective cases. Consequently, no expert witness was called by either party at the trial.

[23] The defendants contended that the plaintiff's fact witnesses, PW2, PW3 and PW4, who claimed to have a technical background, amongst others, at the trial had made the following critical admissions in their evidence on essential points which wholly undermined the plaintiff's case as follows:

(i) the test criteria and components of POC SAT version 3.8(a) and 3.8(b) were the same. The diagrams drawn to illustrate versions 3.8(a) and 3.8(b) were also the same;

(ii) the plaintiff was aware and accepted that whether the system had "frozen" during the POC SAT was not the only criteria for the plaintiff to pass;

(iii) the plaintiff recognised the 1st defendant's desire to test the system functionality and performance from end-to-end;

(iv) the POC SAT conducted in April 2008 was not a trial run; and

(v) there were no documents to show that the plaintiff had in fact passed version 3.8(a).

[24] The 1st defendant also contended that the test results recorded failure of the plaintiff's solutions at various stages, resulting in the failed POC SAT.

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