Buxs Petroleum Limited v Kapichila Energy Limited (2023/HPC/0708) [2024] ZMHC 220 (15 April 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jur isdiction) BETWEEN: 2023/HPC/0708 BUXS PETROLEUM LIMITED PLAINTIFF AND KAPICHILA ENERGY LIMITED DEFENDANT Before: Honourable Lady Justice Chilombo Bridget Maka e For the Plaintiff: Mr. M. Nyirenda - Messrs. SLM Legal Practitioners For the Defendants: Mr. R. Katumbi - Messrs. Willa Mutofwe & Advocates RULING Legislation Referred to: 1. The High Court Rules, Chapter, 27 of the Laws of Zambia. 2. The High Court (Amendment) Rules, 2012. 3. The Rules of the Supreme Court of England ( 1999 Edition) . Cases Referred to: 1. Ellis vs. Allen (1914) CH, 1904. 2. China Henan International Economic Technical Cooperation vs. Mwenge Contractors Limited SCZ Judgment No. 7 of 2000. 3. Zega Limited vs. Zambezi Airlines Limited and Diamond General Insurance Limited SCZ Judgment Appeal No. 39 of 2014. 4. Khalid Mohamed vs. The Attorney General (1982) Z. R, 49 (S. C) 5. Zambia Revenue Authority vs. Shah (2001) Z. R, 60. 6 . Himani Alloys Limited vs. Tata Steel Limited (2011)15 sec 27. 7. Finance Bank Zambia Pie vs. Lamasat International Limited CAZ Appeal Number 175 of 2017. Other Works Referred to: 1. Dr. P. Matibini's Zambian Civil Procedure- Commentary and Cases (Volume!) Lexis Nexis, 2007 1. Introduction. 1. 1. This is a Ruling pertaining to the Plaintiffs application for an Order to enter Judgment on Admission. The Plaintiff's application was made pursuant to Order XX 1 Rule 6 of the High Court Rules and Order 27 Rule 3 of the Rules of the Supreme Court of England ( 1999 Edition). 1.2. The application was initiated via summons, bolstered by affidavit and skeleton arguments, all formally lodged with the Court on February 14, 2024. 1.3. On 15 th of March, 2024, the Defendant opposed the application by submitting to the Court, an affidavit 1n opposition, along with supporting skeleton arguments. 2. Background. 2.1. On 11 th of October, 2023, the Plaintiff initiated this matter by way of Writ of Summons accompanied by a statement of claim. The reliefs being sought as endorsed on the Writ are as follows:- i. An Order for the payment of the sum of K611,491.40 being the amount due to the Plaintiff from the R2 Defendant being the outstanding amount of the fuel that was supplied to the Defendant by the Plaintiff; ii. Interest; and iii. Legal costs. 2.2. The Defendant entered appearance and settled its defence on 12 th December, 2023. 3. Plaintifrs Affidavit Evidence in Support. 3.1. The affidavit in support was deposed by a Raymond Musumali, an Advocate representing the Plaintiff. 3.2. Mr. Musumali's testimony primarily highlighted that the Defendant's defence, particularly outlined in paragraphs 4, 5 and 6, included admissions of the Plaintiffs claims stated in the Writ of Summons. That the acknowledgment of a balance totaling K611,49 l .40 by the Defendant generally indicates a lack of dispute regarding the debt owed to the Plaintiff. 3.3. It was averred that the Defendant's assertion of recovering this amount from a third party, for subsequent payment to the Plaintiff, does not constitute a valid defence against the Plain tiffs claims. 4. Plaintifrs Skeleton Arguments in Support. 4.1. The Plaintiff cited Order XXI Rule 6 of the High Court Rules and Order 27 Rule 3 of the Rules of the Supreme Court of England as the foundation for its application. Additionally, the R3 Plaintiff placed reliance on Order LIII Rule 6(2) and (5) of the High Court (Amendment) Rules 2012. 4.2. The crux of the Plaintiffs arguments centered on the admission of its claim by the Defendant, particularly highlighted in paragraphs 4, 5, and 6 of the defence. The Plaintiff urged this Court to consider entering Judgment on admission based on these admissions . 4.3. The Plaintiff brought to the Court's attention the precedent set forth in the case of Ellis vs. Allen( 11, where the House of Lords elucidated that expedited Judgment may be warranted when one party has unequivocally admitted certain facts. Asserting that the Defendant has not contested its indebtedness to the Plaintiff, the Plaintiff argued that this constitutes an appropriate case for the entry of a Judgment on admission. 4.4. The Defendant's defence was characterized as legally insufficient to warrant a full trial, thus not meeting the standards expected in a commercial action. To support this argument, the Plaintiff referenced the case of China Henan International Economic Technical Cooperation vs. Mwenge Contractors Limited(21 , wherein the Supreme Court highlighted that a Plaintiff could seek Judgment on admission when the Defendant has admitted certain facts or aspects of the case. The Plaintiff urged the Court to consider this precedent favorably. 4.5. The Plaintiff prayed that the Judgment on admission be entered in its favour for the sum of K611,491.40. R4 5. Defendant's Affidavit Evidence in Opposition. 5.1. The Defendant's affidavit in opposition was sworn by Felix Mtika, a Director in the Defendant company. 5.2. His testimony indicated that the Defendant had not explicitly admitted to owing the Plaintiff the sum claimed in its defence. He firmly believed, based on advice from the Defendant's Advocates, that an admission must be unequivocal, precise , and unambiguous. e 6. Defendant's Skeleton Arguments in Opposition. 6.1. The Defendant directed the Court's attention to Order 27 Rule 3, specifically highlighting the explanatory notes under sub rule 2 of the Rules of the Supreme Court of England. These notes stipulate that a Judgment on admission can be entered when admissions, whether express or implied but unequivocal, are made. 6. 2. That this guidance was confirmed in the case of Zega Limited vs. Zambezi Airlines Limited and Diamond General Insurance Limitedl 3l. 6.3. Building upon the aforementioned authorities, the Defendant argued that it had not made any admissions in its defence to justify the entry of a Judgment on admission. That contrary to the Plaintiffs contentions, the defence accurately depicted the true nature of the agreement between the parties. 6.4. The Defendant asserted that the Plaintiff is endeavoring to deceive the Court by fabricating a false narrative to support its RS e claim, despite the presence of contentious issues raised in the defence. Additionally, it was argued that the admission upon which the Plaintiff seeks to rely is neither clear nor unconditional. 6.5. Furthermore, the Defendant cited the case of Khalid Mohamed vs. The Attorney Genera}l4 l, in which the Supreme Court emphasized that a Plaintiff does not automatically prevail merely because a defence fails, rather, that the Plaintiff must substantiate its case. 6.6. The Defendant reiterated that its defence has brought forth contentious issues falling under the jurisdiction of this Court for adjudication. Furthermore, it argued that entering Judgment on admission in the presence of such contentious matters would be prejudicial to the interests of justice. 6.7. The Defendant prayed that the Plaintiff's application be dismissed with costs. 7. Hearing. 7 .1. At the hearing, on 20 th of March 2024, Counsel representing both parties were in attendance. 7.2. On behalf of the Plaintiff, Mr. Nyirenda informed the Court that he was relying on the affidavit and skeleton arguments previously submitted in support of the application. He further emphasized that a Judgment on admission may be appropriate when a defence consists solely of bare denials and R6 fails to address the specific claims outlined in the originating process. 7.3. Mr. Nyirenda urged the Court to exercise its discretion in favor of the Plaintiff, emphasizing that the Defendant had admitted to owing the Plaintiff the sum claimed. 7.4. In response, Mr. Katumbi, Counsel for the Defendant, also relied on the affidavit and skeleton arguments previously submitted in opposition. 7.5. Mr. Katumbi also referenced the case of Zambia Revenue Authority vs. Shah(5l to emphasize the need for matters to be heard on merit. 7.6. He implored this Court to dismiss the application. 8. Consideration and Determination. 8.1. I have considered the Plaintiff's application and its attending documents. I have equally considered the Defendants opposition as presented in the affidavit and skeleton arguments. 8.2. It is trite law this that this Court is vested with discretionary powers to enter Judgment on Admission 1n proper circumstances. This power is derived from Order XXl Rule 6 of the High Court Rules which enacts as follows:- "A party may apply, on motion or summons, for judgment on admissions where admissions of facts or part of a case are made by a party to the cause or matter either by his pleadings or otherwise." R7 8.3. The Supreme Court had occasion to pronounce itself on the effect of the foregoing provision in the case of Himani Alloys Limited vs. Tata Steel Limitedl 6l wherein it was held that:- "Where admissions of facts have been made in the pleadings or otherwise, whether oral or in writing, the Court may, at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may see fit, having regard to such admission." 8.4. Applying the aforementioned prov1s1on, the Plaintiff approached this Court through a summons seeking an Order to enter Judgment on admission in its favor. The Plaintiff contended that the Defendant had admitted owing the sum claimed in the Pleadings, specifically within the defence. The Plaintiff maintained that the Defendant's defence consisted of mere denials that did not directly address its claim. The Plaintiff also invoked Order LIii Rule 6(2) - (5) of the High Court (Amendment) Rules, 2012 which provides that:- "(2) The defence shall specifically traverse every allegation of fact made in the statement of claim or counter claim, as the case may be. (3) A general or bare denial of allegations of fact or a general statement of non-admission of the allegations of fact shall not be a traverse thereof. (4) A defence that fails to meet the requirement of this Rule shall be deemed to have admitted the allegations not specifically traversed. R8 (5) Where a defence fails under sub-rule (4), the plaintiff or defendant, or the Court on its own motion, may in an appropriate case, enter judgment on admission." 8.5. The Defendant refuted the assertion of making admissions in its defence, contending instead that it had raised issues for trial and elucidated the true nature of the agreement with the Plaintiff. The Defendant maintained that for a Court to enter Judgment on Admission, an admission must be unequivocal, a condition it argued was not satisfied. 8.6. Furthermore, the Defendant argued that the Plaintiff is not entitled to Judgment unless it proves its case, even 1n instances where there is a failure of a defence. 8.7. The above argument, as I interpret it, seems to be a rebuttal to the Plaintiffs reliance on Order LIII Rule 6 of the High Court (Amendment) Rules, 2012. 8.8. The legal principles governing the entry of Judgment on admission are well-established and have been applied in numerous cases within our jurisdiction. As the name suggests, for a Court to enter Judgment on admission, there must be admissions of facts, either in the pleadings or otherwise. This necessitates a meticulous examination of the purported admission to determine if it fulfills the prerequisites for such an Order. 8.9. The aforementioned aligns with the decision 1n the case of Finance Bank Zambia Plc vs. Lamasat International Limited17 l, where the Court of Appeal held as follows:- R9 "The court has discretionary power to enter Judgment on admission under Order 27 of the High Court Rules. This power is exercised in only plain cases where admission is clear and unequivocal. An admission has to be plain and obvious, on the face of it, without requiring a magnifying glass to ascertain its meaning. Admissions may be in pleadings or otherwise. A court cannot refuse to grant Judgment on admission in the face of clear admissions." 8.10. Following the guidance provided above, the discretion to enter a Judgment on admission can and should be exercised when the admission is clear, explicit, evident, and unequivocal. The admission must be readily apparent. 8.11. The learned author of the book Zambian Civil Procedure - Commentary and Cases also addressed the conditions that an admission must satisfy on page 609, stating that:- "The essential conditions that must be satisfied before a Court pronounces judgment upon admission are:- i. ii. The admission must have been made either in pleadings or otherwise; The admission must have been made orally or in writing; iii. The admission must be clear and unequivocal; and iv. The admission must be taken as a whole and it is not permissible to rely on a part of the admission, ignoring the other part. v. The jurisdiction to pronounce judgment on admission made by a party is discretionary and, in the absence of reason to the contrary, the judgment ought to be pronounced in order to save time and costs." RlO 8.12. In this application , the Plaintiff asserted that the Defendant made the admission in its defence. The pertinent paragraphs of the defence , namely 4 , 5 , and 6, are reproduced below: - "4. That paragraph 5 of the Plaintiff's Statement of Claim is not in dispute save to state that the Defendant sold the Plaintiff's fuel on credit at the Plaintiff's request because the plaintiff was not a duly licensed oil marketing company at the material time and the Defendant remitted all the money realized from the credit sales upon receipt of payment from the said third party customers. 5. Paragraph 6 of the Plaintiff's Statement of Claim is not in dispute. 6. Paragraph 7 of the Plaintiff's Statement of Claim is denied and the Defendant shall aver at trial that the outstanding balance of ZMW611,490.80 to be collected by the Defendant and remitted to the Plaintiff remained owing from one particular client known as scirocco enterprises limited, who the Plaintiff insisted that the Defendant discloses." 8.13. To fully comprehend the context of the Defendant's response and to evaluate whether the aforementioned constitute admissions of the Plaintiffs claim, it is essential to examine paragraphs 5 , 6 , and 7 of the Statement of Claim. Thus , I reproduce them below:- "5. That as at 19th June, 2023, the Defendant admitted owing the sum of Kl,008,325.60 to the Plaintiff as the outstanding sum for the fuel that was supplied by the Plaintiff. R11 6. On 7 th July, 2023, 21 st July, 2023 and 8 th August, 2023, the Defendant made payment of Kl 10,000.00, K125,000.00 and K161,490.00 respectively to the Plaintiff leaving the sum of K611,490.80 as the outstanding amount due to the Plaintiff. 7. That the Plaintiff shall aver that on several occasions, demand was made for the payment of K611,490.80 by the Plaintiff but the Defendant has neglected to make payment." 8.14. A thorough examination of the opposing stances indicates that the Plaintiff is indeed owed a sum of K61 l,490.80, a fact not contested by the Defendant. However, the Defendant has challenged the assertion that it is solely liable for the outstanding sum. Instead, the Defendant has merely disclosed its role in the transaction. 8.15.1 am of this view because paragraph 4 of the defence directly addresses paragraph 5 of the Statement of Claim. In paragraph 4 of its defence, the Defendant does not contest that the Plaintiff was owed a total sum of Kl,008,325.80. However, it provides additional details regarding the transaction that resulted in this amount being owed. 8.16. Paragraph 5 of the Defence did not challenge the assertion that the Defendant paid the respective stated sums in paragraph 6 of the Statement of Claim. 8.17. In contrast, paragraph 6 of the defence denies the Plaintiff's assertion in paragraph 7 of the Statement of Claim and introduces a third party as the debtor, thus completely distancing itself from owing the Plaintiff. R12 8.18. I therefore find that the Defendant has not admitted to owing the Plaintiff in its pleadings or otherwise. The admitted fact is confined to the Plain tiff being owed the sum claimed, by a third party and not the Defendant. Therefore, the admission relied upon by the Plaintiff fails to meet the necessary conditions of being clear, obvious, and unequivocal. 9. Conclusion. 9.1. After careful examination of the pleadings cited by the Plaintiff as containing an admission, I conclude that the Defendant has not acknowledged owing the Plaintiff the claimed sum. The essential conditions for admission, upon which this Court could enter Judgment on admission, have not been met. 9.2. Consequently, this is not a proper case in which this Court can exercise its discretionary powers to Order the entry of a Judgment on admission. 9.3. The Plaintiffs application for an Order to enter Judgment on admission is therefore dismissed for want of merit. 9.4. Costs of this application shall be in the cause. 9.5. Leave to appeal is hereby granted. Dated at Lusaka this 15th day of April, 2024 . ... ............ ~.: .......... . Chilombo Bridget Maka HIGH COURT JUDGE R13