Downtown Shopping Complex Ltd v First National Bank Limited (Appeal No. 222/2023) [2024] ZMCA 336 (9 December 2024)

IN THE COURT OF APPEAL OF ZAM~ HOLDENATKABWE (Civil Jurisdiction) BETWEEN: ~~i ppeal No. 222/ 2023 ·. /_ .... "(_,, .. ~,or,,,"~. _(_ r - ---- -, ".. \ ~ · ! ) . . ··•. o 9 DEC 20:1• L_. ____ ~ -- ., I '<-- ... -~ \ ..l':':~ .. >•/ Cl'•Jil. REG!ST.". Y 1 ·,:._;;-~ 5C0S7, .... ;..,;.-- . / / DOWNTOWN SHOPPING COMPLEX LTD---=-- APPELLANT AND FIRST NATIONAL BANK LIMITED RESPONDENT Coram: Kondolo SC, Banda-Bobo & Muzenga, JJA On 16th October, 2024 and 9th December, 2024 For the Appellant: Mr. V. K. Luswili of Messrs. Lenard Tembo Legal Practitioners For the Respondent: Mr. F. Muzimu of Messrs. Corpus Legal Practitioners JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Chazya Silwamba v. Lamba Simpito (2010) Vol. 1 ZR 475. 2. Photo Bank (Z) Limited v. Shengo Holdings Limited - SCZ Appeal No. 126/2006 of 2008. 3. Mayuni Estate Limited v. MPH Chartered Accounts (2013) Volume 3 ZR 120. 4. Gilbert v. Smith,117 SC 307, 109 S. E. 114 (SC 1921) (1975- 1976. 5. Ellis v. Allen, 202 Ark, 1007, 154 S. W 2d Ark.1941). J2 6. Golden Filed Limited and Charles Hasting Banda (Trading as Nationwide Estate Agents) 2017 /HPC/0181. 7. Anderson Kabela Mazoka and Others v. Levy Mwanawasa (2005) ZR 138. 8. Zega Limited v. Zambezi Airlines Limited and Diamond General Insurance Limited - SCZ Appeal No. 39 of 2014. 9. Finance Bank Zambia PLC v. Lamasat International Limited - CAZ Appeal 27 /2018. 10. Swain v. Hillman (1999) EWCA Civ 3053. 11. Hakainde Hichilema and Another v. The Attorney General - SCZ Appeal No. 4 of 2019 12. The People v. Shamwana and 7 Others (1985) ZR 41. Legislation referred to: 1. High Court Rules, Chapter 27 of the Laws of Zambia. 2. Regulation No. 5(1) of the Value Added Tax (General) Regulation, 2010 Statutory Instrument No. 88 of 2010. 3. The Rules of the Supreme Court of England (1999) Edition (White Book) Volume 1. Authoritative Works 1. Patrick Matibini SC, Zambian Civil Procedure: Commentary and Cases, Volume 1 2017, Durban: LexisNexis. 2. Bryan Garner, Black's Law Dictionary, 8th Edition, Thomson Reuters. 1.0 INTRODUCTION 1.1 The genesis of this appeal is from a decision rendered by Honourable Lady Justice C. Lombe Phiri on 30th June 2022 who declined to enter judgment on admission in favour of the Appellant. In this appeal, we are being called upon to scrutinise what J3 constitutes an unequivocal admission. In addition, whether a claim for judgment on admission and a counterclaim can run parallel. Put differently, should the defendant's claim for the amount paid to the Zambia Revenue Authority (ZRA) be treated as a separate claim? 2.0 BACKGROUND 2.1 The Appellant, as the Plaintiff, filed a statement of claim on December 5, 2019, regarding the Respondent's liability for undeclared value-added tax (VAT). Due to foreclosure, the Appellant had previously lost possession of a property, the Downtown Shopping Complex on Kafue Road, Lusaka. 2.2 The Appellant contends that VAT became due on that income after the Respondent took possession of the property and started collecting rental income. That VAT should have been remitted to the ZRA from October 2016 to July 2017. 2.3 On September 11, 2019, the Appellant received a demand from the ZRA for unpaid VAT amounting to ZMW 2,189,529.17 for that period, corresponding to when the Respondent had possession of the property. 2.4 The Appellant's statement of claim on page 30 of the Record of Appeal outlines two specific demands: J4 (i) A declaration that the Respondent is liable to pay the VAT accrued during the period it possessed and controlled the property. (ii) An order for the Respondent to pay ZMW 2,189,529.17 in VAT to the Appellant for onward payment to the ZRA. 2.5 The Respondent, in its defence filed on December 20, 2019, denied liability for the taxes, stating that: - The Defendant is not responsible for paying any VAT on rental income credited to the Appellant's account, as it was applied for its benefit. - The Respondent's possession of the property was strictly to recover debt owed to them, and, as such, they do not owe the Appellant the claimed sum of ZMW 2,189,529.17. 2.6 In reply, the Appellant argues that although the Respondent admitted to possessing and running a business by collecting rental income from the property, the Respondent denied liability to pay the VAT sum of ZMW 2,189,529.17. 2.7 The Appellant claims that the Respondent should pay the VAT for the period they had possession and control of the property, from which the business income was generated. 2.8 The Appellant notes that the pleadings were closed on January 21, 2020, and after this, they remained the same until the Appellant applied for judgment on admission on June 1, 2022. JS 3.0 DECISION OF THE COURT BELOW 3.1 From the facts before her, the learned trial Judge set out the issue for determination as being whether the Respondent's payment to ZRA was an unequivocal admission of liability. Her finding was that from the correspondence between the parties, there was no suggestion that liability was settled. The Judge held that the Respondent had explained why it had paid the sum of ZMW 2,189,259.17 to Zambia Revenue Authority. 3.2 In view of the above, the learned Judge dismissed the application to enter judgment on admission. 4.0 GROUNDS OF APPEAL 4.1 Unhappy with the decision, the Appellant has graced our doors fronting two grounds couched as follows: "1. The learned Court below erred in both law and fact when it dismissed the Appellant's application for Judgment on admission on the basis that the liability between the parties was not settled without considering that the only liability in dispute before court at the time of the Appellant's application was whether or not the Respondent was liable to pay the undeclared VAT to Zambia Revenue Authority {ZRA) during the time it had possession and control of the Appellant's property. 3. The learned court below erred in both law and fact when it dismissed the Appellant's application for judgment on J6 admission on the basis that the admission of payment by the Respondent of ZMW 2, 189,529.17 to Zambia Revenue Authority {ZRA) being undeclared VAT for the period October 2016 to July 2017 does not amount to unequivocal admission without taking into account that the Respondent in its defence had refused liability to pay VAT assessment to ZRA for the period it had possession and control of the Appellant's property." 5.0 APPELLANT'S ARGUMENTS 5.1 In its written heads of argument, the Appellant points out that the Respondent had written to the ZRA regarding the VAT sum, and in that correspondence, both ZRA and the Respondent were reminded of Regulation No. 5(1) of the Value Added Tax {General) Regulation, 2010 Statutory Instrument No. 88 of 2010. 5.2 The cited regulation outlines that if a property or control of a business changes hands due to legal processes (like foreclosure or winding-up), the person who takes possession of the property or business is responsible for the VAT obligations. 5.3 The Appellant believes that the law establishes who should be liable for paying VAT to the Zambia Revenue Authority (ZRA) during the relevant period when the Respondent had possession and control of the property. J7 5.4 Although the Respondent initially denied responsibility for this VAT in its defence, the Respondent later paid the exact amount (ZMW 2,189,529.17) to ZRA. This led the Appellant to apply for judgment on admission. 5.5 The Appellant's position remains that there was no issue to be determined once the VAT was paid, except for legal costs. The Appellant cites the Chazya Silwamba v. Lamba Simpito1 case to assert that there is no need for further evidence when facts are admitted. Once admitted, it is no longer a matter in dispute. 5.6 Furthermore, a commentary from Zambian Civil Procedure by Honourable Justice Patrick Matibini is referenced to emphasise that a party can only present evidence based on what has been pleaded. A party cannot advance a case that is inconsistent with its pleadings. 5.7 The Appellant submits that once the Respondent paid the VAT sum of ZMW 2,189,529.17 to ZRA, the dispute over whether the Respondent should have paid the VAT ceased to be an issue. 5.8 In conclusion, the Appellant argues that the question of who should pay the VAT between the parties was resolved when the Respondent made the payment, leaving no further matters to be litigated other than the costs. JS 5. 9 According to the Appellant, the Respondent also shared this view in an affidavit where their employee acknowledged that the plaintiff's claims had been "overtaken by events" due to the VAT payment. 5.10 The Appellant categorically states that there was no claim for repayment of the ZMW 2,189,529.17 by the Respondent on the court record at the time the application for judgment on admission was made. 5.11 The Respondent, in its affidavit opposing the application for judgment on admission, exhibited a draft Amended Defence and Counterclaim. The Appellant points out that this was used as a basis to argue why the court should not enter judgment on admission. However, this draft was not officially filed and was yet to be part of the court record. 5.12 The Appellant argues that the lower court considered this draft counterclaim an unsettled liability, but this was premature, as the counterclaim had yet to be formally added to the case. 5.13 The Appellant refers to Order 15 Rule 2 Sub Rule 1 of the Supreme Court (White Book) Rules3 , which provides that a counterclaim can proceed even if a judgment has already been entered for the plaintiff. This implies that the Respondent could still J 9 pursue their counterclaim separately, but it does not affect the Appellant's application for judgment on admission. 5.14 To cement its position, the Appellant calls in aid the case of Photo Bank (Z) Limited v. Shengo Holdings Limited 2 to illustrate the handling of counterclaims in legal proceedings. In that case, a counterclaim was raised after the Respondent had obtained judgment by default, showing that counterclaims can be raised even after judgment is entered. However, this precedent reinforces the argument that the Respondent's counterclaim could proceed separately, which should not have delayed the court's ruling on the admission. 5.15 The Appellant highlights the Supreme Court's position that raising a counterclaim does not amount to denying the plaintiff's claim, particularly when the claim is liquidated and has already been admitted. That the Supreme Court ruled that a counterclaim, which functions as a form of set-off, must still be proven and cannot serve as a basis for setting aside a judgment that has been correctly entered. 5.16 The Appellant concludes that the lower court's failure to recognise that the counterclaim was not on the court record led to a misinterpretation of the liability status between the parties. JlO 5.17 The Appellant asserts that since the issue of whether the Respondent had paid the tax arrears to ZRA was settled, the remaining issue was whether the Appellant was entitled to legal costs. Therefore, they argue that this ground of appeal should succeed. Ground Two 5.18 The Appellant claims that the lower court erred in dismissing their application for judgment on admission. They argue that the Respondent's admission of owing ZMW 2,189,529.17 to the Zambia Revenue Authority (ZRA) in undeclared VAT from October 2016 to July 2017 should be treated as an unequivocal admission. They believe the court failed to account for the fact that the Respondent had refused liability for the VAT assessment when they had possession and control of the Appellant's property. 5.19 The Appellant argues that the critical issue is what constitutes an unequivocal admission under Order 21 Rule 6 of the High Court Rules, 1 which states that a party can apply for judgment on admission when admissions of facts or part of the case are made either by the pleadings or other means. 5.20 The Appellants cite Justice Chisanga in the case of Mayuni Estate Limited v. MPH Chartered Accounts3 to explain the meaning of Jll 'admission.' According to the cited judgment, admission is not technically defined in the High Court Rules1 but should be understood in its ordinary sense, such as acceptance, concession, disclosure, or divulgence. 5.21 In the aforecited case, reference is made to precedents that clarify how applications for judgment on admission should be considered. For instance, in Gilbert v Smith, 4 it was held that when there is no dispute between the parties, and there is an admission of facts, the plaintiff should be able to obtain the order. 5.22 Ellis v Allen 5 , is also cited where it was held that an admission applies even when it is clear that the admission of facts would make it impossible for the opposing party to succeed. 5.23 In essence, the Appellants assert that based on these precedents and the definition of admission, they are entitled to a judgment on admission. 5.24 The Appellants further posit that the Respondent admits to issuing a cheque in favour of the plaintiff for ZMW 7,028,000, which was dishonoured. This cheque was issued as payment for outstanding rentals, and there is no dispute between the parties about this issue. 5.25 The Appellants point out that, based on the ordinary meaning of the word "admission" as defined by the Oxford Compact J12 Thesaurus, the Respondent's actions constitute an unequivocal admission of liability. That while the Respondent initially denied liability to the Zambia Revenue Authority (ZRA), the payment of VAT arrears to ZRA acknowledges or accepts that the Respondent was liable for the sum of ZMW 2,189,529.17. Therefore, this payment should be viewed as an admission of liability. 5.26 The Appellant points to the Respondent's own statement, where it is mentioned that the Appellant's claims have been overtaken by events due to the payment of ZMW 2,189,529.17. They contend that this is another clear confirmation that the claim has been settled by the Respondent. 5.27 The Appellants aver that the lower court erred in stating that the Respondent's explanation for the payment does not amount to an unequivocal admission of the claims. They submit that the Respondent's right to pursue repayment of the sum does not vitiate the fact that a judgment on admission should be entered in favour of the Appellant. 5.28 The Appellants thus maintain that the Respondent's payment of the VAT arrears is a clear admission of liability, and the lower court misdirected itself by dismissing the judgment on admission. They reference the case of Golden Filed Limited and Charles Hasting Jl3 Banda {Trading as Nationwide Estate Agents),6 where the court found that the elements of admission were satisfied based on the defendant holding a sum of ZMW 340,000.00 that belonged to the Plaintiff. The court ruled that judgment on admission should be entered on that fact alone. The Appellants use this ruling to argue that a similar principle should apply in their case. 5.29 The Appellants maintain that the Respondent's claim for repayment of the amount paid to ZRA should be treated as a separate claim. This distinction is important because the Appellant's claim for judgment on admission was already on record at the time of the application. 5.30 Thus, the Appellants argue that the second ground of appeal should also succeed, as the Respondent's payment of the ZMW 2,189,529.17 is an admission, and the Respondent's right to pursue repayment is irrelevant to the judgment on admission . 6.0 RESPONDENT'S ARGUMENTS 6.1 The Respondent's arguments revolve around the discretion of the court and how the court exercises that discretion. The Respondent seems to argue that the jurisdiction of the lower court in determining whether to enter a judgment on admission is discretionary. That this means that the lower court has the Jl4 authority to decide whether or not an unequivocal admission has been made by the Respondent. 6.2 The Respondent contends that the lower court exercised its discretion properly in determining that no unequivocal admission had been made. The claim is that the lower court made the right decision based on its assessment of the facts and circumstances. 6.3 There is a further argument that the Appellant's appeal has been overtaken by events. This refers to the contention that subsequent actions, such as the payment made to the Zambia Revenue Authority (ZRA), affect the viability of the appeal. 6.4 To support its position, the Respondent cites specifically Order XXI Rule 1 of the High Court Rules, 1 which allows a party to apply for judgment on admission when the truth of the claim or part of the case is admitted. Referenced also was Order 27 Rule 3 of the Rules of the Supreme Court,3 which permits the court to give judgment based on admissions of fact, without waiting for the determination of any other issues. 6.5 The Respondent emphasises that the court's jurisdiction to enter judgment on admission is discretionary, not automatic. That this discretion is outlined in Order 27 Rule 3(7) of the White Book,3 which states that the court "may, as it thinks just" issue a J15 judgment on admission, provided there is no reason to the contrary. The court's discretion is typically exercised to save time and costs, unless other considerations are at play. 6.6 The Respondent argues that the Appellant's grounds of appeal disregard the fact that entry of judgment on admission is not a right but is subject to the court's discretion. The Respondent relies on Zega Limited v. Zambezi Airlines Limited and Diamond General Insurance Limited,8 where the court noted that such decisions should be exercised with judicial discretion to prevent unfair judgments that could deny defendants a chance to fully defend themselves. 6. 7 While the court has discretionary powers, the Respondent asserts that this discretion should be exercised judiciously. In this case, the lower court, in their view, made a correct judgment by considering all circumstances holistically and determining that no unequivocal admission had been made by the Respondent. 6.8 Citing the case of Finance Bank Zambia Pie v. Lamasat International Limited,9 the Respondent emphasises that the court has discretionary power to enter a judgment on admission only in cases where the admission is clear and unequivocal. The J16 court should not need to interpret or magnify the admission to ascertain its meaning, as it must be obvious on its face. 6.9 The Respondent refers to Order 27 Rule 3(2) of the White Book3 , which provides that admissions of fact may be express or implied but must be clear. They further define an 'unequivocal' admission using the Black Law Dictionary, 4th Edition, meaning clear, plain, and capable of only one interpretation without doubt. 6.10 The Respondent argues that their actions, including paying the outstanding tax liability to the Zambia Revenue Authority (ZRA), do not constitute an unequivocal admission of the Appellant's claims. They refer to their Affidavit in Opposition and other arguments submitted (pages 202-223 of the Record of Appeal) to support their position that no clear admission was made. 6.11 The Respondent also points out that during the material period (October 2016 to July 2017), they had possession of the property at Stand No. 36451 Lusaka (Downtown Shopping Mall) after obtaining a favourable judgment. 6.12 The Respondent references a prior judgment dated 17 September 2014 for a total sum of ZMW 17,189,615.43 (the "Judgment Debt"). During the material time, rents collected from the J17 Appellant's tenants were applied towards settling this judgment debt. 6.13 On 30 June 2017, the Judgment Debt was refinanced and taken over by Cavmont Bank, and the Appellant regained possession of Downtown Shopping Mall. The Respondent received ZMW 14,112,446.26 as full and final payment for the debt owed by the Appellant. However, this refinancing was entered into based on a mutual mistake that all debts were settled, not accounting for the tax liability to the Zambia Revenue Authority (ZRA). 6.14 The Respondent contends that the ZMW 2,189,529.17 paid towards the tax liability was done using funds that should have been applied to settle the Judgment Debt. The Respondent asserts that the Appellant is still indebted for the tax liability, as this was not included in the refinancing settlement. 6.15 The Respondent's letter to the ZRA states that, despite paying the tax liability, they reserve the right to pursue the Appellant for repayment. This demonstrates that the Respondent did not unequivocally admit liability for the claims made by the Appellant. 6.16 The Respondent references the case of Chayza Silwamba v. Lamba Simpito1 to argue that all admissions or denials must be J18 unequivocal. Half-admissions or evasive responses should not be considered admissions. 6.17 The Respondent asserts that the lower court's ruling was based on the explanation for the payment made to the Zambia Revenue Authority (ZRA) and the affidavit provided in opposition. The court found that the Respondent's letter to ZRA, which reserved the right to seek repayment, indicated that there was no unequivocal admission of liability. 6.18 The Respondent argues that the lower court exercised its judicial discretion properly in determining that there was no unequivocal admission. The court took a holistic view of the case and concluded that this was not a proper case for entering a judgment on admission. 6.19 The Respondent further contends that the central issue of whether they were liable to pay the undeclared VAT to ZRA while in possession of the Appellant's property remains unresolved. The matter is still ongoing, and the court was right to refrain from entering a judgment on admission as the issue had not yet been fully settled. J19 6.20 The Respondent argues that the Appellant's appeal is premature, as it delves into the merits of the main issue, which is the liability for payment of VAT. This issue is still under contention and should be determined by the lower court before it is addressed in any higher court. 6.21 Referring to the case of Swain v. Hillman,1° the Respondent contends that only cases fit for summary judgment should bypass a trial. The current case, involving unresolved VAT liability, is not fit for summary resolution and must proceed to trial. 6.22 Citing Zega Limited v. Zambezi Airlines Limited and Diamond General Insurance Limited,8 the Respondent emphasises that the court must exercise discretion when deciding on judgments by admission. The court must ensure that any admission is clear and unequivocal because judgments on admission bypass trial and deny the defendant the opportunity to fully defend themselves. 6.23 In furtherance of their submissions, the Respondent argues that the Appellant's appeal has been overtaken by events, particularly due to the filing of the Respondent's Amended Defence and Counterclaim on 11 August 2022. In this amended defence, the Respondent asserts that the Appellant was responsible for all taxes and liabilities related to the mortgaged property, including the VAT .- J 20 assessment. This has significantly altered the factual landscape, and the lower court should now adjudicate based on these current pleadings. 6.24 The Respondent invites the court to take judicial notice of the court record in the lower court, asserting that the court has the authority to take note of its records as well as those of other judges. The Respondent relies on the case of The People v. Shamwana and 7 Others12 to support the argument that judicial notice is permissible and should be applied in this case. 6.25 The respondent again references the case of Hakainde Hichilema and Another v. The Attorney General,11 where the Constitutional Court took judicial notice of another judge's court record . 6.26 Based on these arguments, the Respondent submits that the Appellant's grounds of appeal lack merit and should be dismissed with costs awarded to them. 7.0 HEARING OF THE APPEAL 7.1 The appeal came up for hearing on 16th October 2024 and both parties placed significant reliance on the heads of arguments filed herein. They also proffered brief oral submissions which we shall consider in determining the appeal. J21 8.0 CONSIDERATION AND DECISION OF THIS COURT 8.1 We have carefully considered the record and the arguments by counsel and we are indebted for their industry. The grounds of appeal are interrelated and we shall therefore deal with them together. 8.2 The grievance by the Appellant in the pt ground emanates from the lower court's decision to dismiss its application for judgment on admission. According to the Appellant, the Respondent was liable for payment of VAT to the ZRA during the time it had possession and control of its property. 8.3 On the other hand, the Respondent has argued that the Court correctly exercised its discretion, based on its assessment of the facts and circumstances of the case, to refuse to grant the judgment on admission. 8.4 In the 2nd ground, the Appellant bemoans the stance taken by the court below that there was no unequivocal admission of liability. The Respondent is of the view that the payment did not constitute an unequivocal admission. 9.0 JUDGMENT ON ADMISSION 9.1 It is clear to us that the issue before us revolves around whether or not there was an unequivocal admission on the part of the J22 Respondent to necessitate the entering of a judgment on admission. It is settled law that judgment will not be entered unless there has been an unequivocal admission. 9.2 To put the word 'unequivocal' in its proper context, we shall draw guidance from Black's Law Dictionary, 8th Edition at page 334 which defines it as follows: - clear; plain; capable of being "Unequivocal understood in only one way, or as clearly demonstrated; free from uncertainty, or without doubt; and, when used with reference to the burden of proof, it implies proof of the highest possible character and it imports proof of the nature of mathematical certainty." 9.3 We have also looked at the relevant provisions in relation to when an admission can be entered. Order 27 Rule 3 of the Rules of the Supreme Court of England provides as follows: "Where admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such judgment, or make such order, on the application as it thinks just." J23 9.4 We shall now proceed to look at case law. We, too had occasion to weigh in on the matter in the case of Finance Bank Zambia Pie v. Lamasat International Limited9 where we held: "1. 2. The court has discretionary power to enter judgment on admission under Order 27 of the High Court Rules. This power is exercised in plain cases where is clear and the admission 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 by pleadings or otherwise [ ... ] A court cannot refuse to grant judgment on admission in the face of clear admission." 9.5 Furthermore, the Apex Court made the following insightful comments in the case of Zega Limited v. Zambezi Airlines Limited and Diamond General Insurance8 when they held: facts and "The court, on examination of the circumstances has to exercise just judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of appeal on the merits. Therefore, unless the admission is clear, unambiguous and unconditional, the discretion of the court should not be exercised to deny the valuable right of the defendant to contest the claim, in short, the discretion should be used only where there is clear admission which can be acted upon." J24 9.6 From where we stand, we maintain the position in the aforecited cases which explicitly guide that the Judgment on admission must be plain and obvious. It is clear from the foregoing that the court has judicial discretion when to enter judgment on admission and it ought to evaluate each case on its own merit. The guiding factor is that the admission must be clear and unequivocal. 9.7 In casu, there is no dispute that the Respondent paid the VAT sum of ZMW 2,189,527.17 to the Zambia Revenue Authority. The burning issue is whether the said payment constitutes an admission warranting the exercise of the Court's discretion in favour of the Appellant. 9.8 Upon reflection it is our considered view that the issue of who was liable to pay VAT to ZRA was a matter fit for determination after a trial. It is our view that the lower court exercised its discretion properly when it refused to enter judgment on admission for the reasons it advanced which were that the correspondence between the parties does not suggest on the face of it that liability was settled between the parties. She further held that: "the defendant had explained as to why the payment was made meaning that there was no unequivocal admission of the claims." J25 9.9 In the circumstances of this case, we are of the view that summary judgment would be an inappropriate step as it would bypass a trial when there is a matter yet to be resolved on the VAT liability. In light of the foregoing, we are fortified that the trial Court was on firm ground in the exercise of her judicial discretion. We are further strengthened by the cases of Zega Limited v. Zambezi Airlines Limited and Diamond General Insurance Limited8 and Finance Bank Zambia Pie v. Lamasat International Limited9 which state in no uncertain terms that an admission must be clear and unequivocal. 9.10 We, therefore, find no merit in both grounds of appeal, and we dismiss them accordingly. 10.0 CONCLUSION 10.1 In essence, our decision is: 1. The court acted within its discretionary powers and judiciously assessed the case and can, therefore, not be faulted. 2. A court has discretionary power to enter judgment on admission where the admission is clear and unequivocal. 3. The payment of ZMW 2,189,529.17 towards the tax liability does not constitute an admission of the Appellant's claims. ..!. J 26 Therefore, there was no unequivocal admission warranting judgment on admission in favour of the Appellant. 10.2 Costs follow the event, to be taxed in default of agreement. z ===- .............................. ~ ... ......... . :::::-----. M. M. Kondolo, SC COURT OF APPEAL JUDGE A. M. Banda-Bobo K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE