African Supermarkets Limited (T/A Shoprite Checkers) v Margaret Chilekwa (Suind as Administratrix of the Estate of the late Donald Bwalya Chitimukulu) (APPEAL NO. 061 OF 2012) [2013] ZMSC 58 (21 August 2013)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: AFRICA SUPERMARKETS LIMITED (T / A SHOPRITE CHECKERS) AND MARGARET CHILEKWA (Suing as Administrator of the Estate of the late Donald Bwalya Chitimukulu) APPEAL NO. 061 OF 2012 APPELLANT RESPONDENT CORAM: WANKI, JS, LISIMBA AND HAMAUNDU, AG. JJS On 4 th December, 2012 and 21 st August, 2013 - For the Appellant: Mr. K. Bota of Messrs. William Nyirenda and Company For the Respondent: Mr. G. Locha of Messrs. Mweemba and Company JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. Stanley Mwambazi -Vs- Morester Farms Limited, (1977)' ZR 108, 110. - 2. Govinabhai Baghibhai and Vallabhai Bagabhai Patel -Vs- Monile Holding Company Limited, (1993 - 94) ZR 20. 3. 4. 5. 6. Water Wells Limited -Vs- Wilson Samuel Jackson, (1984) ZR 121. Commonwealth Development Corporation -Vs- Central African Power Corporation, ( 1968) ZR 70. Kankomba and Others -Vs- Chilanga Cement Pie, (2000) ZR 129. The attorney General -Vs- Aaron Kampumba Achiume, (1983) ZR 1. Jl \ r I .\. 7. Shocked -Vs- Goldschmidt, (1998) ALL ER 372, 377. 8. Phillip Mhango -Vs- Dorothy Ngulube, (1983) ZR 62. OTHER WORKS REFERRED TO:- 9. Rules of the Supreme Court of England and Wales, 1999 Edition Order 14. 10. High Court Rules, Chapter 27 of the Laws of Zambia Order 116. 11. Lands and Deeds Act, Chapter 185 of the Laws of Zambia Section 4. - The appellant appealed to this Court against the whole Ruling of the High Court at Livingstone on 9 th March, 2012. The respondent on 23 rd November, 2009 filed a Writ of Summons in her capacity as administrator of the estates of the late Donald Bwalya Chitimukulu claiming inter alia KS00,000,000=00 for special and specific damages against the appellant. Other parties who are not party to this appeal who - included Zambia Railways Limited and the Attorney General were subsequently joined to the action as 2 nd defendant and 3 rd defendant respectively. All the three defendants entered their respective defences. In its defence the appellant stated that it had a Lease Agreement with the 2 nd defendant; in relation to subject property. J2 ·-. ' , However, in its defence the 2 nd defendant stated that the Lease Agreement with the appellant related to plot 1171 and not the subject property. In the circumstances, the respondent believed and rightly so that the appellant's defence was no defence on the merit in light of the 2 th and 3 rd defendants' defence; and that if the matter was to proceed to trial, there was nothing at all that the Court will be determining as the appellant's defence had failed and did not amount to a defence on merit but an admission of having trespassed on the respondent's land relying on a totally wrong Lease Agreement for a different piece of land. The respondent therefore applied for summary judgment pursuant to Order 14 Rule of the Rules of the Supreme Court (9l. The Court below after considering the application found that the appellant had no defence to the respondent's claims therein and that even if the matter was to be adjourned for hearing there would be no issue to be heard as between the respondent and the appellant. The Court below therefore proceeded to grant the application by the respondent as against the appellant; and accordingly J3 I O I ◄ I granted judgment 1n default of defence pursuant to Order 14 Rule 1 of the Rules of the Supreme Court (9 J. The appellant has advanced four grounds of the appeal, namely:- 2. 3. 4. The Court below erred in fact and in law to hold that there are no issues to be heard as between the respondent and the appellant and entered default judgment in favour of the respondent against the appellant when there is on record a clear defence for the appellant against the respondent's claims. The Court below erred in fact and in law to hold that the lease between the appellant and 2 nd defendant had been shown as having been made in relation to different property without testing the 2 nd defendant's claim or the 2 nd defendant proving its case. There are triable issues between the rest of the parties in the non resolution of which renders the decision of the Court below to lack finality. The Court below erred in fact and law to grant the default judgment to the respondent against the appellant which default judgment effectively grants a liquidated sum of KS00,000,000=00 and other the respondent proving its case or loss or damage but simply on the basis that the appellant's defence had effectively been negated by the 2 nd defendant's defence or that the appellant's defence had collapsed. damages without unliquidated respondent The Court below erred in law and in fact to grant judgment the notwithstanding background that it is on record that the same Court had in an earlier Ruling on a point of law delivered on 13th December, 2010 made a finding that the land in question being subject of Certificate of Title in favour of the 2 nd default J4 ' ' I defendant and the respondent's basis for the claim of ownership of land in question being based on an unregistered document, the respondent's said document was null and avoid. The Ruling appealed against is contradictory of the finding in the Court's said earlier Ruling. The appellant filed heads of arguments in support of its grounds of the appeal. Mr. Bota relied on the heads of argument at the hearing. Counsel however made some extensions. In support of ground one of the appeal Mr. Bota drew the Court's attention to the holding of the Court below in the Ruling complained of at RS lines 1 to 3. (Record of Appeal page 12) where it was said as follows:- "The 1st defendant has no defence to the plaintiff's claims herein that even if the matter was adjourned for hearing there would be no issues to be heard as between the plaintiff and the 1st defendant." Counsel submitted that contrary to the foregoing holding that the appellant has no defence , the appellant verily has a defence, which is at pages 32 and 33 of the Record of Appeal and was referred to by the Court below in its Ruling inter alia on page R2 (page 9 , Record of Appeal lines 4 to 10) as follows:- "The 1st defendant settled a defence to the plaintiff's claim in which defence 1st defendant indicated that they had gone upon the said property by virtue of a lease executed between the 1st defendant and the Zambia Railways Limited since Zambia Railways were not party to the cause, the 1st defendant issued JS r f I I " process for joinder and Zambia Railways Limited were joined to the proceedings as the 2 nd defendant. Also joined was the Attorney General who became the 3rd defendant." Mr. Bota contended that with the defence disclosed by the appellant, it was an error for the Court below to grant the respondent summary judgment for at least two reasons: - "Firstly, it is contrary to the settled law that Courts should allow triable issue to come to trial and not to deny a party the right to have his case heard. Secondly, even going by Order 14 Rule 1, Rules of the Supreme Court which the respondent relied on in her application to the Court below, according to Counsel the appellant's defence adequately answered to what was required of it." It was argued that the rule that triable issues should proceed to trial was emboldened in the case of STANLEY MWAMBAZI -VS- MORESTER FARMS LIMITED (1l where Gardner J. S. put it as follows:- "At this stage it is the practice in dealing with bonafide interlocutory applications for Courts to allow triable issues to come to trial despite the default of the parties." Mr. Bota contended that the ratio 1n the case of GOVINABHAI BAGHIBHAI AND VALLABHAI BAGABHAI PATEL - VS- MONILE HOLDING COMPANY LIMITED (2l is also instructive in this matter where this Honourable Court held in respect to J6 I I I default judgment that even if the defendant did not act bonafide, the Court will set aside a default judgment if a triable issue is disclosed. Further, the case of WATER WELLS LIMITED -VS- WILSON JACKSON( 3l was cited where this Court stated that:- "Although it is usual on an application to set aside default judgment, not only to show a defence on the merits, but also to give an explanation of the default, it is the defence on the merits which is the more important plan to consider. We agree with them that it is wrong to regard the explanation for the default instead of the arguable defence as the primary consideration. If the plaintiff would not be prejudiced by allowing the defendant to defend the claim then the action should be allowed to go to trial." It was pointed out that Order 14 Rule 1 Rules of the Supreme Court (9l which the respondent had relied upon in her application enacts as follows:- "1-(1) where an action to which this rule applies a Statement of Claim has been served on a defendant and that the defendant has given notice of intention to defend the action; the plaintiff may, on the grounds that the defendant has no defence to a claim included in the Writ or to a particular part of such a claim or part except as to the amount of any damages claimed, apply the defendant." for Judgment against the Court to Mr. Bota submitted that for the respondent to be entitled to her application under Order 14 Rule 19, the following ought to have been in place:- J7 I f ] I - I (i) (ii) The Statement of Claim should have been served on the appellant; and The appellant should have given notice of intention to defend the action; and (iii) The respondent must have been of the op1n1on that the appellant had no defence to the claim. Counsel argued that it is where 'notice of intention to defend' is applicable, therefore, that this rule applied. It was pointed out that Order 1 Rule 4, Rules of the Supreme Court (9l ti defines 'notice of intention to defend as:- containing a "An acknowledgement of service statement of the effect that the person by whom or on whose behalf it is signed intends to contest the proceedings to which the acknowledgment relates." Mr. Bota submitted that in the instant case, the appellant did more than merely indicating that it intended to contest the proceedings but had actually filed a defence. It was argued that the filing of a defence therefore, clearly put the appellant's case to be outside the preview of the rule. It was pointed out that Practice Note 14/ 1/2 of the Rules of the Supreme Court at page 163 indicates as follows with regard to the application of Order 14:- "The purpose of Order 14 is to enable a plaintiff obtain a quick judgment where there is plainly no defence to the claim." J8 I f j l Mr. Bota submitted that the appellant having had disclosed a defence on the merits, there was no room for the respondent to obtain a quick judgment under Order 14 (9l. Counsel pointed out that the respondent's deposition in her supporting affidavit, paragraphs 7 to 12 (pages 226 lines 3 to 22 of the Record of Appeal) has been reacted by the appellant in its Affidavit in Opposition filed on 29 th November, 2011. It was contended that in light of the foregoing , this was a proper case for the Court below to find that this was a case with issues or questions which ought to be tried; competing pleadings call for testing of evidence and not summary disposal of a case. Mr. Bota pointed out that Practice Note 14/0/2 of the Rules of the Supreme Court (9) is again instructive when the learned authors opine as follows under the 'Editorial - Introduction:- "Unless (1) the Court dismissed the application, or (2) the defendant satisfies the Court (a) that there is an issue or question in dispute which ought to be tried, or (b) that there ought for some other reason to be a trial, the Court may give judgment for the plaintiff. A defendant may show cause against an application for summary judgment and the Court may give the defendant leave to defend either unconditionally ... " J9 ' I ' ' Counsel submitted that the ratio 1n the case of COMMONWEALTH DEVELOPMENT CORPORATION -VS- CENTRAL AFRICAN POWER CORPORATION t4l ought to have been more reactive against the respondent's application when, the Court commenting on Order 14, Rules of the Supreme Court (9l and Order No. 10 High Court Rules (IOJ opined at page 76 as follows:- "I have therefore to decide whether the defendant company has set up a bona fide defence or has raised an issue against the claim which ought to be tried ... and it is only if am satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant may I give judgment for the plaintiff. Order 14 and consequently our Order XI was not intended to shut out a defendant who could show that there was a triable issue applicable to the claims as a whole from laying his defence before the Court .... That a summary judgment should not be granted when any serious conflict as to matter of factor any real difficulty as the matter of the law arises." It was pointed out that the Court below had in any event in - its Ruling of 13th December, 2010 found not only that the land in question was the property of the 2 nd defendant but also that the basis for the respondent's claim to the subject piece of land being an unregistered document was null and void. Mr. Bota contended that the respondent had put it plainly in her depositions that she was aware that the appellant had a JlO defence. It was submitted that the respondent's awareness of the appellant's defence should have been held against her. Reference was made to Practice Note 14/7 /4 of the Rules of the Supreme Court 1997 Edition which is in this instance applicable where the learned authors opine as follows:- "If before the issue of summons the plaintiff knows that the defendant is relying upon contention which would entitle him to unconditional leave to defend, he cannot properly invoke the jurisdiction of the Court under Order 14 to give him summary judgment, neither he nor any one on his behalf can make the Affidavit in Support stating that "in his belief there is no defence to the claim or part to which the application relations" (see rule 2(1)). The belief that must be deposed to is, not that the ground of defence relied upon is not good, or substantial or has been raised very late or will in all probability fail at the trial, but that there is defence to the claim or part. If therefore notwithstanding the plaintiff proceeds under Order 14, the application should be dismissed. If however, before the issue of the summons, the defendant does know more than state that he has a defence, but does not specify any grounds, the plaintiff may still proceed under Order 14." such knowledge, Grounds two and three of the appeal were argued together. In support Mr. Bota pointed out that the Ruling of the Court below in part reads as follows:- "The plaintiff's claim to the property in question is based upon the appointment as an administrator of the estate of the late Mr. Donald Chitimukulu to whom the plot in question was offered by the Livingstone City Council as shown in documents 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in the plaintiff's bundle of Jl 1 ' ' I documents filed into Court on 15th April, 2010 though unregistered as required by statute. The 1st defendant has not shown any basis upon which they claim a right to Plot No. LIV 1924 as their only defence to the plaintiff's claim was a lease between themselves and the 2 nd defendant which lease as having been made in relation to a different property." Counsel submitted that even notwithstanding the recognition that the basis of the respondent's claim being "unregistered as required by statute," the Court below proceeded e to grant the respondent's judgment. It was argued that clearly, the respondent had failed to prove her claim for the property and was thus at law disentitled to a judgment in her favour. Mr. Bota argued that they are buttressed in this submission by the holding by this Honourable Court in the case of KANKOMBA AND OTHERS -VS- CHILANGA CEMENT PLC !5l where it was stated as follows:- "It is trite law that he who asserts must prove and as we stated in the case of Mohammed -Vs- Attorney General and restated in Zulu -Vs- Avondale Housing Project Limited that "unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment." In support of ground four of the appeal, Mr. Bota pointed out that in its Ruling of 13th December, 2012, the Court below J12 ~ . ' indicated that the defendants had shown that the respondent's basis for the claim of ownership had not been registered in the Registry of Lands and Deeds as required under the provisions of Section 4 of the Lands and Deeds Act." The relevant part of the said Ruling which is at page 209 lines 13 to 21 of the Record of Appeal is as follows:- • "The defendants in this application have shown that the land in question is the property of the 2 nd defendant who has title to the same. That the plaintiff's basis for the claim of ownership has not been registered in the Registry of Lands and Deeds as required under the provisions of Section 4 of the Lands and Deeds Act, Chapter 185 which non registration renders the document the basis of the claim to the plot null and void by reason of the provisions of Section 6 of the Act, Chapter 185 (Lands and Deeds Act)." Counsel argued that this Honourable Court's holding in the case of the ATTORNEY GENERAL -VS- AARON KAMPUMBA ACHIUME (6l is worthy of note where the head note reads as follow:- e "(ii) The appeal Court will not reverse findings of fact made by a trial Judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the evidence, no trial Court acting correctly can reasonably make. (iii) An unbalanced evaluation of the evidence where only the flaws of one side but not of the other are Jl3 ' ' t ' considered is a misdirection which no trial Court should reasonably make, and entitles the appeal Court to interfere." Mr. Bota submitted that in so far as the Court below glossed over and altogether ignored what it had found as a fact in an earlier Ruling and therefore, ended up contradicting itself, its Ruling is amenable to be interfered with. In augmenting the appellant's heads of argument at the - hearing of the appeal Mr. Bota submitted that it would be noticed that grounds two and three have been argued together. Counsel pointed out that he only wished to make some extensions to those grounds. It was further pointed out that the principal claims of the respondent in her pleadings as per page 19 is for KS00 ,000,000=00 for special and specific damages for trespass to the said piece of land; and that the piece of land 1n issue 4t according to page 18 lines 3 and 4 is number Liv 1924. Counsel argued that the law on special damages according to this Court's guidance in the case of PHILLIP MHANGO AND DOROTHY NGULUBE !8l, that any party claiming special loss must prove that special loss and must do so with evidence which makes it possible for the Court to determine the loss with fair J14 amount of certainty. Mr. Bota contended that contrary to the guide lines the Court below without calling for any proof and evidence granted the claim. This, Counsel agued was an error which ought not, be sustained. Regarding ground five of the appeal Mr. Bota, contended that the Court below contradicted itself. Counsel submitted that it would be noted from the record that during the time the Court • below was dealing with this matter, it delivered at least two reasoned Rulings; the first Ruling was delivered on 13th December, 2010 (it is at pages 207 to 210 of the record) ; and the second was delivered on 9 th March, 2012 and it is on pages 8 to 12 which Ruling is the subject of this appeal. It was contended that in both Rulings it was the finding of the Court that number Liv 1924 does not belong to the respondent but it belonged to • Zambia Railways , 2 n d defendant. It was pointed out that the Court below on page 209 of the Record lines 13 to 21 stated that: - "I have considered the arguments in this case. The defendants in this application have shown that the land in question is the property of the 2 nd defendant who has title to the same. That the plaintiff's basis for the claim of ownership has not been registered in the Registry of Lands and Deeds as required under the provisions of Section 4 of the Lands and Deeds Act, Chapter 185, which non registration renders the Jl5 ' ' ' ' ' document the basis of the plaintiff's claim to the plot null and void by reason of the provisions of Section 6 of the Act, Chapter 185 (Lands and Deeds Act)." And on page 11 of the Record lines 1 to 4 the Court below said that:- "There is evidence also to the effect that the 2 nd defendants were the title holder to property at plot 1924 Livingstone as shown in the Certificate of Title No. 10282 exhibited as "CB3" in the affidavit of Charles Bota and that property number 1924 was re entered by the Commissioner of Lands on 5 th March, 1996." It was argued that, notwithstanding the foregoing findings, the Court below proceeded to award special damages and damages for trespass to the respondent who is not the owner. It was Counsel's submission that there can be no clear case of unjust enrichness than the ruminations of the Ruling of the Court below. Counsel contended that the Court emphasized the apparent weakness in the appellant's case and glossed over, clear and fatal flows in the respondent's case. It was argued that this is unbalanced evaluation which this Court has guided ought not to be. J16 ' , ' ' .. The respondent filed heads of argument on which Mr. Locha relied. Counsel informed the Court that the said heads of argument cover most of the issues except one issue. In response to ground one of the appeal Mr. Lo cha contended that the Court below did not err in fact and in law when it held that there were no issues to be heard between the respondent and the appellant and proceeded to enter judgment in - default of defence. Counsel argued that the Judge in the Court below was on firm ground when he made the holding that there were no triable issues as between the respondent and the appellant. It was submitted that the Court below arrived at this decision after having looked at the respondent's claim, the appellant's defence to the respondent's claim, as well as the 2 nd defendant's defence to the Third Party proceedings issued by the appellant and the third defendant's defence to the respondent's claim. It was Counsel's argument that the said defences to the respondent's claim filed by the 2 nd and 3 rd defendant as well as the 2 nd defendant's defence to the Third Party proceedings issued J17 by the appellant effectively settled and resolved the issue as between the respondent and the appellant. It was contended that there were no triable issues between the respondent and the appellant to be resolved at full trial after the said pleadings were filed. It was further Mr. Locha's argument that Order 14, Rule 1 • of the Supreme Court Rules empowers the Court to summarily determine the matter as between the plaintiff and the defendant or defendants if it is of the view that the defence as filed by the defendant or defendants does not raise triable issues to warrant a full enquiry. Counsel pointed out that the said Order 14, Rule 1 of the Supreme Court Rules (9l provides that:- "1-(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim the Writ, or to a particular part of such a claim, or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant." included in It was contended that from the foregoing , the said Order 14, Rule 1 of the Supreme Court Rules (9l confers power to the Court to enter judgment, if the Court has reason to believe and is J18 satisfied that the defence filed by the defendant does not raise any triable issues. Mr. Locha argued that the judgment which the Court below entered in favour of the respondent was not a judgment based on failure to file a defence. Counsel submitted that this was a summary judgment that was rendered by the Court after evaluating the appellant's defence as well as the defences which were filed by the 2 nd defendant and the 3 rd defendant respectively. It was further argued that if this Court was to consider this as a judgment in default of defence, a proposition which they seriously doubt, it was submitted that the appellant, failed to show the defence on merits in the Court below and failed to • . advance sufficient grounds to persuade the Judge to order that the matter should proceed to trial. The case of SHOCKED -VS GOLDSCHMIDT (7l was cited where it was said that:- "... these cases relating to default judgments are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant's explanation both for the default and for any delay, as well as against prejudice to the other party." J19 . ' It was argued that in the instant case, the Judge in the Court below granted the summary judgment after evaluating the appellant's defence and came to a conclusion that on all fores, the said defence was not a defence on merits to warrant the case to proceed for trial. From the foregoing Counsel submitted that ground one of the appeal should be dismissed. - In response to ground two of the appeal, Mr. Locha contended that the Court below did not err in fact and in law when it held that the lease between the appellant and the 2 nd defendant was made in relation to a different property without testing the 2 nd defendant's claim or the 2 nd defendant proving its case. Counsel submitted that the Judge in the Court below was on firm grounds when he held that the Lease Agreement signed between the appellant and the 2 nd defendant was in relation to a different property being plot number 1171 and not property number Liv 1924 which is the subject to these proceeds. It was argued that there was no proof documentary or otherwise to show that the appellant and the 2 nd defendant had J20 entered into a Lease Agreement in respect of property number Liv 1924. Mr. Locha pointed out that to the contrary, the 2 nd defendant's defence to the Third Party proceedings issued by the appellant clearly shows that the 2 nd defendant entered into a Lease Agreement with the appellant in respect of property number Liv 1 924 . The Court was referred to page 22 paragraph 3 of the Record of Appeal. It was submitted that this is confirmed further by the Lease Agreement between the appellant and the 2 nd defendant which is attached to the summons for joinder at page 96 of the Record of Appeal and the appellant's bundle of documents at page 162 of the Record of Appeal. It was contended that with this evidence clearly before the Judge in the Court below, there was nothing about the Lease Agreement which needed to be tried by the Court below; and further there was nothing that the 2 nd defendant was required to prove in respect of the Lease Agreement because it spoke for itself in relation to the subject property which was under lease. Mr. Locha submitted that where an agreement between parties is reduced into writing, the parties to that agreement are J21 to be bound by the contents of what is on the agreement and no external evidence or material can be used to vary the terms of the said agreement. Reference was made to Cheshire, Fifoot and Furmstons on Law of Contract, 13th Edition which at page 126 provides that:- "The parties are to be confirmed within the said four corners of the document in which they have chosen to be bound." - Counsel therefore submitted that the Judge was on firm ground when he found as a fact that the Lease Agreement between the appellant and the 2 nd defendant was in respect of property number 1171 and not property number Liv 1924. It was contended that this finding of fact is well anchored on the contents of the defence filed by the 2 nd defendant to the appellant's Third Party notice which defence is on page 221 of the It Record of Appeal. It was pointed out that the finding is fortified further by the Lease Agreement which the appellant and 2 nd defendant signed, which Lease Agreement was exhibited by the appellant in their Affidavit in Support of the application to join the 2 nd defendant to the action. J22 I . O I Mr. Locha submitted that the appellant has not disputed the said Lease Agreement and neither has it raised any issues regarding the contents of the Lease Agreement in order to subject the same to a trial. According to Counsel there is nothing to prove or argue on the said Lease Agreement. Furthermore, it was argued that the respondent was not privy to the said Lease Agreement between the appellant and the - 2 nd defendant. Mr. Locha contended that if there are any issues to be settled, that should be done between the appellant and the 2 nd defendant who are parties to the agreement. It was argued that this should not affect other people who are not parties to the agreement. Counsel submitted that if there are any issues or disputes in the Lease Agreement between the appellant and the 2 nd defendant those issues, can better be resolved in the Third Party proceeding which have been issued by the appellant against the 2 nd defendant. It was argued that this should not affect the· respondent, and the respondent should not be denied to enjoy the fruits of a judgment entered in its favour on the basis of disputes over a J23 contract to which she is not privy to. It was further argued that this ground of appeal should be dismissed. In response to ground three of the appeal, Mr. Locha contended that the Court below did not err in fact and in law when it granted the default judgment to the respondent which judgment effectively granted the respondent the sum of KS00, 000, 000=00. - Counsel submitted that the Judge in the Court below was on firm ground when he entered the judgment in default of defence. It was contended that the Judge in the Court below entered the judgment after he considered the appellant's defence and after looking at the defences filed by the 2 nd and 3 rd defendants. Mr. Locha argued that the effect of 2 nd and 3 rd defendant's defences was that they exposed the appellant's defence and watered it down, rendering the appellant to have no defence on merits to the respondent's claim. It was pointed out that the respondent's claim was for special damages in the sum of KS00,000,000=00 and the sum was specifically pleaded as shown on the endorsement on the Writ of Summons which is at page 16 of the Record of Appeal as J24 I ' ' ' ' well as in the Statement of Claim which is at pages 18 and 19 of the Record of Appeal. According to Counsel once the Court pronounced the judgment the respondent was entitled to all remedies as endorsed on the Writ as well as in the Statement of Claim. It was submitted that the Judge in the Lower Court's finding was fortified by the fact that the appellant's defence did not raise specific issues or defence against the particulars of special damage which were specifically pleaded by the respondent. It was pointed out that the respondent did specifically plead the special damage in the sum of KS00,000,000=00 and, in the absence of a defence to counter this claim, the Court below was on firm ground to grant the claim as the same was pleaded in the Writ of Summons as well as in the Statement of Claim. It was further submitted that the respondent was under no obligation at that stage to prove loss or damage because the Judge in the Court below had found as a matter of fact that the purported defence which was filed by the appellant was not a defence to warrant the matter to proceed for trial as there were no issues to be tried between the respondent and the appellant. J25 I , I ' ' ' I From the foregoing, Mr. Locha submitted that this ground of appeal should be dismissed. In response to ground four of the appeal, Mr. Locha contended that the Court below did not err in law and fact when it granted the respondent the default judgment on the 9 th March, 2012, notwithstanding the fact that it had earlier on March 4 th , 2010 made a ruling that the matter should proceed to trial. It was Counsel's argument that the Judge in the Court below was on firm ground when he entered judgment in default of defence on 12th March, 2012. It was contended that the judgment of 9 th March, 2012 was granted by the Court below after having looked at the defence to the respondent's claim which was filed by the 2 nd defendant and the defence to the Third Party proceedings which was filed by the 2 n d defendant against the appellant's Third Party proceedings as well as after having looked at the 3 rd defendant's defence. Mr. Locha argued that all the three defences by the 2 nd and 3 rd defendants on record clearly watered down the defence which was raised by the appellant against the respondent's claims. J26 Counsel pointed out that the 2 nd defendant's defence to the appellant's Third Party proceedings which is on page 221 of the Record of Appeal clearly shows that the 2 nd defendant never entered into a Lease Agreement with the appellant in respect of property number Liv 1924 which is subject of this action. It was contended that the said defence shows that the property which was the subject to the Lease Agreement was property number 117 and not Liv 1924. Counsel noted that this position is affirmed further by the Lease Agreement signed between the appellant and the 2 nd defendant which Lease Agreement is on page 96 of the Record of Appeal. Mr. Locha's argument was that after the 2 nd and 3 rd defendants filed in their respective defences to the respondent's claim as well as the Third party Proceedings, the issue of ownership or title to property number Liv 1924 was effectively resolved and settled. Counsel contended that there was no dispute as to who the rightful owner of property number Liv 1924 was to warrant a trial as was ordered by the Judge in the Court below in his earlier Ruling of 4 th March, 2010. It was argued that this issue was resolved conclusively at that stage, as it was clear J27 I ' ' ' . ,. that property number Liv 1924 had been offered to the respondent by the Livingstone City Council as per documents on pages 73 to 81 of the Record of Appeal. It was submitted that a trial between the respondent and the appellant was going to be necessary and desirable if the 2 nd and 3 rd defendants were not joined to the proceedings and had not filed their respective defences . Mr. Locha contended that the said defences effectively dealt with the issue of title to property number Liv 1924 which issue the Judge in the Court below had sought to be tried in his earlier Ruling dated 4 th March, 2010. It was argued that the said Ruling had effectively been overtaken by the events which occurred after the 2 nd and 3 rd defendants were joined to the proceedings. And that there was no contradiction between the Rulings delivered by the Court below on 4 th March, 2010 and 9 th March, 2012. It was further argued that the Court below in its Ruling dated 4 th March, 2010 never found that the respondent's claim to ownership of property number Liv 1924 was null and void because it was based on an unregistered document as is being claimed by the appellant in ground four of the appeal. J28 .. I • I f I I f It was contended that to the contrary all what the Court below said was that there was need to determine or discover who the title holder to the land in issue was; in support the Court was referred to page 61 paragraph 15 of the Record of Appeal. Counsel argued that this issue has already been resolved by the respective defences filed by the 2 nd and 3 rd defendants as shown above. From the foregoing, it was submitted that this ground should be dismissed. Mr. Locha finally submitted that from the foregoing arguments; and the totality of the evidence as well as the authorities cited this appeal lacks merit and all the four grounds of appeal advanced by the appellant should be dismissed with costs. In augmenting the respondent's heads of argument at the hearing of the appeal, Mr. Locha submitted that most of the issues are covered except one issue. Counsel contended that the Ruling of December, 2011 was made against the respondent and the appellant; and the parties were only two. It was pointed out that in that Ruling Zambia Railways and the Attorney General were not parties. It was further pointed out that in the second J29 C 9' ; Ruling of March, 2012 Zambia Railways and the Attorney General had been joined as 2 rd and 3 rd defendants respectively. Mr. Locha submitted that it was on the basis of the defences filed by the two said defendants that the Court below found that the appellant's defence was not a defence at all and that there is nothing to go for trial between the respondent and the appellant. Counsel emphasized that this was a judgment based on the pleadings. It was, therefore , prayed that this appeal be dismissed. We have considered the grounds of the appeal; the heads of arguments filed by the parties; and the submissions on behalf of the parties by Counsel. We have also considered the judgment of the Court below which is the subject of the appeal; the appellants defence and the authorities that have been cited. In ground one of the appeal, the appellant has challenged the Court below for holding that there were no issues to be head between the appellant and the respondent and entering judgment in favour of the respondent against the appellant when there was on record a clear defence for the appellant against the respondent's claims. J30 C ,-., I f I { \ f We have considered the arguments in support of ground one of the appeal and in response. We have also examined the defence that was filed on behalf of the appellant and the defence by the Third Party to the claim of the appellant. In the defence the appellant averred that:- 1. 2. 3. 4. 5. Paragraph 1 of the plaintiff's statement of claim is denied and well avers that it has no knowledge of the contents of this paragraph. The defendant also has no knowledge whether the plaintiff is the duly appointed administrator of the estate of the late Donald Bwalya Chitimukulu or whether the necessary standing to act in this matter and puts the plaintiff to the proof thereof. the plaintiff has that The contents of paragraph 2 of the defendant's Statement of Claim are admitted in so far as the plaintiff avers is Africa the Supermarket Limited, Registration Number 33740/95 T / A Shoprite, a company incorporated in terms of the Company Laws of the Republic of Zambia with business address being Plot 1925, Manda Hill Shopping Centre, Corner of Great East and Manchinchi Roads, and Lusaka, Zambia. defendant The contents of paragraphs 3, 4, 5, 6, 7 and 8 defendant has no knowledge of the plaintiff's averments contained in these paragraphs and puts the plaintiff to the proof thereof. The contents of paragraph 9 of the plaintiff's statement are denied and the defendant shall aver that Stand 1924, Livingstone is registered in the name of the plaintiff has any legal title to Stand 1924 and the defendant puts the plaintiff to the proof thereof. The defendant shall further aver at trial, in respect of paragraph 9 of the plaintiff's Statement of Claim that Zambia Railways Limited is the registered lease holder of Stand 1924, Livingstone and furthermore that said J31 JI . ..,, • ' / > ,, I erroneously the property was Commissioner of Lands on 5 th March, 1996 and no title has been issued to the plaintiff or any other party since. re-entered by 6. 7. 8. 9. 10. The contents of paragraph 10 of the plaintiff's Statement of Claim are denied in so far as the plaintiff's alleges that the defendant entered on to the land wrongfully. The defendant entered upon Stand 1924 Livingstone with permission of Zambia Railways Limited pursuant to a Lease Agreement dated 1st September, 2009. In respect of paragraph 11, the defendant admits that it entered upon Stand 1924 and demolished a foundation slab. The defendant avers that it was entitled to demolish the slab and construct an access road upon Stand 1924 pursuant to Clause 6(i) of its Lease Agreement with Zambia Railways Limited. Furthermore, the defendant specifically denies that it demolished two (2) built but incomplete house on Stand 1924. In implication hereof the defendant specifically avers that only one (1) dwelling on Stand 1924 was demolished but that said dwelling was demolished by the occupier thereof after being evicted by the Zambia Railways Limited. The contents of paragraph 12 are admitted in so far as the plaintiff avers that the defendant caused to be constructed an access road aver Stand 1924, Livingstone. The defendant specifically avers that it was entitled to construct said road pursuant to Clause 6(1) of the defendant's Lease Agreement with Zambia Railways Limited. In respect of the plaintiff's claim for special damages the defendant shall aver that the Lease Agreement mentioned herein above provided at Clause 13 that Zambia Railways Limited undertook to indemnify the defendant against any liability or damage resulting from any adverse claim or consequence arising from inter alia "with any law, regulation rule or order of the Government or any other competent authority." loss J32 , \.. . ' r 11. In any event, that the defendant denies that the plaintiff suffered any damages and the quantum of the plaintiff's averred damages. The defendant puts the plaintiff to the proof hereof. 12. Save as herein before previously admitted the defendant dies each and every allegation in the Statement of Claim as though the same were herein set out and traversed seriatim. AND the Third Party's defence to the claim of the 1st defendant was that:- 1. The Third Party Zambia Railways Limited denies paragraphs 1, 2, 3, and 4 of the 1st defendant's defence to the plaintiff's Statement of Claim and will state at the hearing of this action that the contents thereof are within the peculiar knowledge of the 1st defendant. 2. With regard to the contents of paragraph 5 of the 1st defendant' s defence the Third Party denies Zambia Railways was the registered lease holder of Stand No. 1924 Livingstone at the material time in issue. The Third Party will further aver that the Commissioner of Lands REGISTERED a Re-Entry Certificate on the said Stand No. 1924 on the 5 th day of March, 1996 against the Third Party. The property had reverted to the Commissioner of Lands. 3. With regard to the contents of paragraph 6 of the 1st defendant's defence to the plaintiff's Statement of Claim, the Third Party Zambia Railways Limited denies that it authorized the 1st defendant to enter upon Stand No. 1924 Livingstone. It will aver at the hearing of this action that the Lease Agreement between the 1st defendant and the Third Party Zambia Railways Limited being the 1st defendant relates to VACANT LAND PART OF FARM 1171 RAILWAYS STRIP RESERVE LIVINGSTONE for which the Third Party Zambia Railways Limited still holds a Provisional Certificate of Title No. 1171/8. referred to by 4. With regards to paragraph 7 of the 1st defendant's defence, the Third Party Zambia Railways Limited J33 5. 6. 7. 8. 9. repeats the averments in paragraph 3 above and will also state at the hearing of this action that Clause 6(i) relates to the existing Lease Agreement mentioned in paragraph 3 above. The contents of paragraphs 8 and 9 are denied in so far as these relate to an alleged Lease Agreement over Stand No. 1924 Livingstone which is not the property of Zambia Railways Limited. As regards paragraph 9 of the 1st defendant's defence, the Third Party Zambia Railways Limited denies the contents thereof in so far as these relate to a Lease Agreement allegedly over Stand No. 1924 and repeats the contents of paragraphs 3, 4, and 5 of its defence to the claim exhibited in the 1st defendant's Notice. The Third Party Zambia Railways Limited therefore denies that it entered into a Lease Agreement with the 1st defendant over Stand No. 1924 as alleged. The Third Party Zambia Railways will aver that the Lease Agreement entered the 1st defendant and itself authorized the 1st defendant to construct the access road on the Vacant Land Part of Farm 1171 Railway Strip Reserve Livingstone as alleged. into between In the premises, the Third Party Zambia Railways Limited denies that it is liable to the plaintiff's claim itemized as (i), (ii), (iii), (iv) and (v) and the 1st defendant in respect of the alleged or any indemnity or contribution as alleged or at all. SAVE as herein before admitted the Third Party Zambia Railways Limited denies each and every allegation in the 1st defendant's defence and or Third Party Notice Claim as though the some were herein set out and traversed seriatim. As would be noted from the foregoing reproduction of the pleadings the appellant in its defence alluded to various issues that included the Lease Agreement between the appellant and the J34 2 nd defendant; the capacity of the respondent to sue, (Locus Standi); dispute of the alleged damages etc, however, the Court dealt only with the issue of the alleged Lease Agreement between the appellant and the 2 nd defendant on the basis of which the Court below decided that there was no defence to go for trial between the appellant and the respondent and accordingly entered judgment in default in favour of the respondent. As we have stated above there were issues between the appellant and the respondent which would have been properly resolved after a trial. We therefore agree with the submissions on behalf of the appellant that with the defence disclosed by the appellant, it was an error for the Court below to grant the respondent a summary judgment. In the circumstances, we find that ground one of the appeal has merit. It is accordingly allowed. Since in our view the appeal hinges on ground one of the appeal and in the light of the course, we propose to take we will not consider the other grounds of the appeal. In the circumstances, we find merit in the appeal and the decision by the Lower Court to enter judgment in default is set aside. We are of the view that this is a proper case to be referred J35 back to the Court below for trial. We accordingly ref er the case to the Court below for trial by the trial Judge. We order that the respondent bears the costs both before the Court below and before this Court which will be subject to taxation in default of taxation. r ~~ .. ~./1.: ....................... . M. E. Wanki, SUPREME COURT JUDGE. M. Lisimba, ACTING SUPREME COURT JUDGE. ~ ·~· ··· ······ ····················~ E. M. Hamaundu, ACTING SUPREME COURT JUDGE. J36