Future Development Limited and Ors v David Mulaisho (2024/HPC/0336) [2024] ZMHC 213 (2 August 2024)

' • • IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: HIG FUTURE DEVELOPMENT LIMITED ... OM, ,ERCIAt or VISION JUD c A z IA 2024/HPC/0336 PLAINTIFF T / A SKYTECH MOBILE PLAZA AND DAVID MULAISHO D 2 ~ 202 REGlc.-;JRy LUSAKA DEFENDANT Coram: Hon. Lady Justice Chilombo Bridget Maka For the Plaintiff: Mr. J. Phiri - Messrs. D. Simwiinga Advocates For the Defendant: Messrs. Dzekedzeke & Company - No Appearance RULING Legislation Referred to: 1. The High Court (Amendment) Rules, 2012. 2. The Rules of the Supreme Court of England 1999 Edition Cases Referred to: 1. Finance Bank Zambia PLC vs. Lamasat International Limited CAZ Appeal No. 175/2017 2. Ellis vs. Allen (1914) 1 CH 904 at 909 3. Himani Alloys Limited vs. Tata Steel Limited(2011) 15 sec 27 1. Introduction 1.1. This is the Plaintiff's application for Judgment on admission filed into Court on 25th June, 2024. 1.2. The application is made pursuant to Order 53 Rule 6 (2) (3), (4) and (5) of the High Court (Amendment) Rules, 20 12 as read together with Order 27 Rule 3 of the Rules of the Supreme Court, 1999 edition. 1. 3. The summons for Judgment on admission was accompanied by an affidavit and skeleton arguments both of even date. 1.4 . The Defendants did not file any opposition to the application. • 2. Background 1.1. The Plaintiff commenced action against the Defendant on 13th May, 2024 seeking the following reliefs:- i) Immediate payment of the total amount owed of $21,617.68; ii) Damages for breach of contract; iii) Interest at the current commercial bank lending rates; iv) Costs; and v) Any other relief the Court deems fit. • 1.2. The Defendant filed its Defence and Counter Claim on the 24th May, 2024. 1.3 . Subsequent to the foregoing, the Plaintiff took out summons for Judgment on admission on 25th June 2024, being the subject application. 3. Affidavit in Support 3. 1. Zakariya Nadif Abdullahi, the Director of the Plaintiff Company, was the deponent of the affidavit. R2 3.2. The essence of the deposition was that the Defendant admitted the Plaintiffs claim in his defense. This admission is contained in paragraphs 5 and 6 of the defence. 3.3. Additionally, the Defendant acknowledged and admitted the debt in a document exhibited as "ZNA 1." 3.4. The deponent further averred that since the Defendant has clearly admitted the claim, there was no need to proceed to trial. The Court was urged to enter judgment on admission and grant the reliefs sought. 4. The Plaintifrs submissions 4 .1. The submission was that this Court h as jurisdiction to enter judgment on admission pursuant to the provisions of Order 53 Rule 6 of the High Court (Amendment) Rules, and Order 27 Rule 3 of the Rules of the Supreme Court, which were quoted. 4.2. It was submitted that a review of paragraphs 5 and 6 of the defence clearly shows that the Defendant admits owing the Plaintiff the sums claimed in the statement of claim. 4.3. The case of Finance Bank Zambia PLC vs. Lamasat International Limited11) was cited, in which the Court discussed what constitutes an admission and when the power to enter judgment on admission can be exercised. 4.4. The other aspects of the submission pertain to the Debt Settlement Agreement dated 24th May 2024. It was contended that t he said document contains a plan and R3 • • clear a dmissions, thus justifying the entry of Judgment on admission. 4 .5 . The second limb of th e submission was that the defense contains general and bare denials of allegations of fact. This was contrary to the provisions of Order 53 Rule 6(3) of the High Court (Amendment) Rules, which states that a general or ba re denial of allegations of fact shall not be a traverse th ereof. 4.6. It was argued that the d efen ce therefore fails to meet the • requirements of Order 53 Rule 6(2)-(4) of the High Court (Amendment) Rules. The Plaintiff urged this Court to exercise its discretion and enter Judgment on a dmission • against the Defendant. 4. 7. Order 27 Rule 3 (7) was quoted to th e effect t hat the jurisdiction of the Court is discretionary, but in the absence of r eason to the contrary, the Order is made so as to save time and costs. 4.8. The case of Ellis vs. Allen12)was cited on the object of Order 27 of the Rules of the Supreme Court as follows: " .. . the object of the rule was to enable a party to obtain speedy Judgment where the other party has made a plain admission entitling the former to succeed. It applies where there is a clear admission of facts in the face of which it is impossible for the party making it to succeed". 4.9. The Plaintiff's prayer was that this Court grants the application with costs. R4 5 . Hearing of the Application 5 . 1. At the hearing of the application on 15th July, 2024, Counsel for th e Plaintiff was in attendance. There was no appearan ce by Counsel for the Defendant. 5 .2. On behalf of the Plaintiff, Mr. Phiri informed the Court that he was relying on the affidavit in support and the skeleton arguments . 6. Consideration and Determination • 6 . 1. I have considered the Plaintiff's a pplication along with the affidavit in support and skeleton arguments . 6.2. It is trite law that a Judgment on admission can be entered in favour of a party in an appropriate case. The provisions of the law that clothe this Court with discretionary jurisdiction to enter Judgment on admission are Order 21 Rule 6 of the High Court Rules, Order 27 Rule 3 of the Rules of the Supreme Court and Order 53 Rule 6 sub rule 1 - 5 of the High Court (Amendment) Rules. • 6.3. The exercise of th e discretion is dependent on the Court being satisfied that there is an admission of facts either through p leadings or otherwise, or the defence has not m et the requirements under Order 53 Rule 6 of the High Court {Amendment) Rules. 6.4. In the case of Himani Alloys Limited vs. Tata Steel Limitedl3 ), the Supreme Court stated that: RS "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 questions between the parties, make such order or give such Judgment as it may see fit, having regard to such admission. 6.5. In this case, the Plaintiff alleges that the Defendant has admitted his indebtedness in his defence. The specific paragraphs that contain the alleged admissions are paragraphs 5 and 6 of the defence. The two paragraphs state as follows: "5) The 1st Defendant admits the contents of paragraph 5 of the statement of claim only to the extent that cell phones were supplied to Defendant and the Plaintiff will be put to strict proof during trial regarding the value claimed. 6) The 1st Defendant admits the contents of paragraph 6 of the statement of claim and it will aver at trial that the Plaintiff equally owes the Defendant commission for the sale of the cell phones which needs to be deducted from the amount claimed by the Plaintiff". 6.6. It is evident from the foregoing, that the Defendant admitted that the Plaintiff had supplied cells phones to him but disputed the value of $18,233.68. As regards the averment that the Defendant also R6 • • obtained cash of $3,384 from the Plaintiff, the same was not specifically traversed. 6 .7. As regards paragraph 6 of the defence, the defendant admitted that he has refused to pay the p laintiff the su m of $21 ,617 .68. He however averred that the Plaintiff equally owes h im commission for the sale of the phones which amount should be deducted from the amount claimed. 6.8. My review of paragraphs 5 and 6 of th e defence th erefore is that they do 11.ot contain clear and unequivocal admissions. I am therefore unable to enter Judgment on admissions based on th e pleadings. 6.9. In the case of Finance Bank Zambia PLC vs. Lamasat International Limited the Court stated as that: "The Court has discretionary power to enter Judgment on admission under Order 27 of the Rules of the Supreme Court of England. This power is ex ercised in only plain cases where admission is clear and unequivocal. An admission has to be plain and obvious o n the face of it, without requiring a magnifying glass t o 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." 6.10. In addition to the pleadings, the Plaintiff has also relied on the letter of agreement dated 4 th February, 2024 to assert admission of the debt by the Defendant. 6. 11. I have considered the said letter of agreement and my view is that it is not clear that the Defendant was R7 • • admitting the debt owed ar1s1ng from the cell phone transaction. It is instead clearly recorded that the Defendant was taking full responsibility of the sum of $15,564 which he would pay within one month. It was not stated what this sum of money was for. Consequently, its connection to the factual allegations pertaining to the phone transaction is missing. 6. 12. Additionally, the second page of the said letter of agreement only has names and figures written thereon with no explanation or link to the sale transaction between the parties. The document further seems to be at variance with paragraph 5 of the statement of claim which contains two figures of $18,233.68 and $3,384. 6.13. Therefore on account of the foregoing, I am unable to agree with the Plaintiff's submissions that the said document is proof of admission of the debt owed to the Plaintiff by the Defendant. 6.14. The last issue to consider is whether the defence as a whole consists of general or bare denials of allegations of fact. I note that the Plaintiff has not pointed out any specific paragraph in the defence which it is alleged consists of bare denials. 6.15. I have nonetheless holistically considered the defence to ascertain whether the plaintiff's claims are valid. My view is that the defence does not consist of bare denials. The Defendant has traversed the allegation of fact contained in the statement of claim as discussed above. The R8 • • plaintiffs quest to therefore enter judgment on admission pursuant to Order 53 Rule 6 of the High Court (Amendment) Rules cannot be sustained. 7. Conclusion. 7.1 The plaintiffs application for Judgment on admission has no merit. 7.2 The application is accordingly dismissed with costs in cause 7.3 Leave to appeal is granted . Dated at Lusaka this 2nd day of August, 2024 ,, ••••••••••••••• • ••••••••••• Chilombo Bridget Maka HIGH COURT JUDGE .. • • R9