Eoge Zambia Limited v Star Oil Company Limited (2023/HPC/0598) [2023] ZMHC 70 (16 November 2023)

059~ 2023/HPC/mrr2 IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: EOGE ZAMBIA LIMITED AND STAR OIL COMPANY LIMITED DEFENDANT Before the Honourable Mr. Justice L. Mwanabo on 16th November, 2023 v For the Plaintiff: Ms Chilufya Luanda Sinkala of Messrs. MAY & CO For the Defendant: Ms Jane Ng,andu of Messrs Kaumbu Mwondela Legal Practitioners EX TEMPORE JUDGMENT ON ADMISSION Cases referred to: 1. China Henan International Economic Technical Corporation v. Mwange Contracts Limited (2002) ZR 28 2. Finance Bank Limited v Lamasat International Limited CA~ Appeal No. 175 of 2018 Legislation referred to: 1. Order 53 Rule 6 (1 - 5) of the High Court Rules CAP 27 of the Laws of Zambia 1. The Plaintiff herein commenced an action on 25th August, 2023 against the Defendant by way of Writ of Summons accompanied with a Statement of Claim, claiming an order for payment of the sum of ZMW719 573.50 as outstanding balance for the supply and delivery of petroleum products, damages for breach of contract and for fraud and interest. The Jl statement of claim contains comprehensive details of the action and claims by the Plaintiff. 2. ORDER 53 RULE 6(2) (3) AND (4) OF THE HIGH COURT RULES on which the application is premised gives jurisdiction to the Court to enter judgment on admission where a defence contains bare denials and provides as follows: " (2). The defence shall specifically traverse every allegation of fact made in the statement of claim or counter-claim, as the case maybe. (3). A general or bare denial of allegation of facts 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 requirements of this rule shall be deemed to have admitted the allegations not specifically traversed. (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" 3. In the case of CHINA HENAN INTERNATIONAL ECONOMIC TECHNICAL CORPORATION V. MWA. NGE CONTRACTS LIMITED1 it was held that: "The new dispensation in commercial matters require parties to plead their cases with precision and in detail early in the litigation in order to assist the courts in narrowing and defining the issues in contention. Judgment on admission can in appropriate cases, be entered at scheduling conferences because J2 this is the time when the court considers, the pleadings and directions the matter should take, case flow management techniques require that the court should be in control of the pace of litigation and properly direct the course of events." 4. It was further held in the case of FINANCE BANK ZAMBIA LIMITED V LAMASAT INTERNATIONAL LIMITED2 that: the court has discretionary power to enter judgment on admission where the 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. Admission may be by pleadings or otherwise. A court cannot refuse to grant judgment on admission on the face of clear admission. 5. I have carefully considered the affidavit evidence and skeleton arguments filed by the parties. At the hearing of this matter Counsel for the Plaintiff informed the Court that the Plaintiff did not wish to pursue the claim for damages for fraud and for breach of contract. I was urged to enter judgment on admission for the sum of ZMW719,573.50 plus interest from the date of cause of action. When asked by the Court on the date of cause of action, Counsel for the Plaintiff stated that it is 22nd June, 2023 when the first demand letter was issued to the Defendant. 6. Counsel for the Defendant indicated that of the sum ofZMW719,573.50 the Defendant had paid ZMW300,000.00 leaving a balance of ZMW419,573.50 and that judgment on admission should be entered on that amount. In response, Counsel for the Plaintiff confirmed only the sum of ZMW200,000.00 to have been paid by the Defendant and that the balance now stands at ZMW519,573.50. There appears therefore to be a J3 dispute on the payment and receipt of the sum of ZMWl00,000.00. Unfortunately, the revelations of payments made or received was brought to the attention of the court as evidence from the bar by Counsel on both sides. If both Counsel had properly applied their minds to resolving the matter, proper manner of adducing such evidence to the Court should have been employed. 7. I have studied the Defendant's defence and its clear that apart from paragraph 5 which disputes the assertion by the Plaintiff that Mr. Abdul Khalif claimed that the Defendant had paid ZMWl00,000.00 which the Plaintiff claims not to have received, the rest of the paragraphs of the defence contain bare denials. However, following the withdrawal of that claim by the Plaintiff it has become unnecessary to speak more on the issue. 8. I am well guided by the authorities I have referred to above herein that: a defence must specifically traverse every allegation of fact made in the statement of claim or counter-claim, as the case maybe and general or bare denial of allegation of facts or a general statement of non admission of the allegations of fact shall not be a traverse thereof, a defence that fails to meet the requirements of 53 RULE 6(2) (3) AND (4) OF THE HIGH COURT RULES is deemed to have admitted the allegations not specifically traversed. The foregoing gives jurisdiction to the Court to enter judgment on admission. 9. I accordingly enter judgment on admission pursuant to 53 RULE 6(2) (3) AND (4) OF THE HIGH COURT RULES in favour of the Plaintiff for the sum of ZMW719,573.50 less any payments made by the Defendant against this sum. The alleged payment of the sum of ZMWl00,000.00 J4 which clearly remains in dispute, the onus is on the Defendant to show proof of payment of that amount to the Plaintiff. The proof should show the account where payment was made and the owner of that account. If the account where payment was made docs not belong to the Plaintiff or its advocates, again the duty is on the Defendant to regularize the payment. In the event that parties fail to agree, either party should make an application to the Deputy Registrar to determine whether the said payment was duly made to the Plaintiff. The Judgment sum shall attract interest at short deposit rate from 22nd June, 2023 (being the date of first demand letter as the actual date of cause of action has not been provided in the pleadings) to the date of Judgment thereafter at current bank lending rate as advised by the Bank of Zambia up to full payment. 10. As regards the claim for damages for breach of contract, I wish to make this observation as the issue I want to address has been overtaken by the withdrawal of the relief for damages for breach of contract. A statement of claim where there is a relief for damages for breach of contract should give particulars or details in the pleadings to support the claim for that relief. The mere default to pay, for instance, does not automatically entitle the Plaintiff to damages for breach of contract because the payment of interest is meant to cushion the Plaintiff against losses in value of the money due to delayed payment. Where the Plaintiff has suffered damage as a result of the delayed payment it is the duty of the Plaintiff in its pleadings to show how the same has arisen and basis on which assessment may be premised if the claim is not liquidated. I do not think that merely stating in the endorsement a relief for damages for breach of contract is enough: more details must be provided to premise JS the relief. I should add that same goes for all reliefs. The pleadings must show the basis on which the relief is premised and what damage the Plaintiff suffered giving rise to the claim for that relief. Our case law is replete with cases to the effect that parties are bound by their pleadings and that the purpose of pleadings is to inform the opponent and of course the Court of the case or issues for determination. I must state that a party who applies for judgment on admission should also examine the reliefs sought and consider which ones can be accommodated by a judgment on admission and which ones may have to proceed to trial. It is a sign of failure to understand the purpose of judgment on admission where a party simply files summons for judgment on admission without marrying the application to the reliefs sought that can be accommodated by the application and without specifying the extent to which the judgment on admission would extinguish the matter or the issues for determination. The application should specify whether the judgment on admission sought is partial or full judgment of the matter. I must reiterate that the purpose of applying for judgment on admission is to enable the applicant obtain speedy judgment as opposed to waiting until full trial and probably lead to disposal of the whole matter quickly. I would not encourage an application for judgment on admission that is not aimed at achieving this purpose. 11. I award costs to the plai cement. L. MWANA 0 JUDGE OF THE HIG J6