Inde Credit Company Limited v Broderick Investments Limited and Ors (2023/HPC/0687) [2024] ZMHC 244 (6 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: 2023/HPC/0687 INDE CREDIT COMPANY LIMI LAINTIFF AND · BRODERICK MUMBA AMINATA PHIRI l ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT Before the Honourable Lady Justice Chilombo Bridget Maka. For the Plaintiff: Ms. N. Chibuye - Messrs. Nchito & Nchito. For the Defendants: Mr. T. Munalula - Messrs. Lusenga Mulongoti Advocates. RULING Legislation Referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia. 2. The Rules of the Supreme Court of England, 1999 Edition (White Book). Cases Referred to: 1. Muyuni Estates Limited vs. MPH Chartered Accountants (sued as a Firm) (2013) Z. R, 120. 2. Chazya Silwamba vs. Lamba Simpasa (2010) Z. R, 475. 3. Printing and Numerical Registering Company vs. Simpson (1875) LR 19, Eq. 462. 4. Colgate Palmolive Inc. vs. Able Shemu Chuka and 110 Others Appeal No. 181 of 2005. 5. R vs. The University of Cambridge (1723) Istra 557, 567. 6. Himani Alloys Limited vs. Tata Steel Limited (2011)15 sec 27. 7. Zega Limited vs. Zambezi Airlines Limited and Diamond General Insurance Limited Another SCZ Judgment Appeal No. 39 of 2014. 8. Finance Bank Zambia Pie vs Lamasat International Limited CAZ Appeal Number 175 of 2017. 1. Introduction. 1.1. This Ruling pertains to the Plaintiff's application seeking the entry of a Judgment on Admission in its favour. 1.2. On 15th May 2024, the Plaintiff applied for the entry of a Judgment on Admission through a summons, supported by an affidavit and skeleton arguments. 1.3. The Defendants contested the Plaintiffs application by submitting an affidavit in opposition along with skeleton arguments. 2. Background. 2.1. On 3 rd October, 2023, the Plaintiff initiated the main action against the Defendants by way of Writ of Summons accompanied by statement of claim. The reliefs being sought by the Plaintiff are as follows:- i. Payment ofUS$302,938.05 being money owed to the Plaintiff as at 30th July, 2023; ii. Interest on the amount above at the contractual interest rate of 11 % per month from 30th July, 2023 until date of payment; iii. Damages for breach of Order Financing Facility; R2 iv. An Order for the enforcement of the Personal Guarantee of the 2nd and 3rd Defendants; v . Costs of recovery; and vi. Any other relief that the Court may deem fit. 2.2 . The Defendants entered appearance and settled their joint defence on 7 th February, 2024. 3. Plaintiff's Case. 3.1. The evidence presented in support of this application was that the Plaintiff availed monies to the 1st Defendant through various letters for Order Financing and Invoice Discounting facilities which were guaranteed by the 2 nd and 3 rd Defendant. That the 1st Defendant defaulted on the repayment of the various amounts lent togeth er with the contractual interest. It was averred that the total sum owing amounted to US$302 ,938.05. 3.2. It was further averred that through var10us email correspondence made between the 1st Defendant and employees of the Plaintiff between May and August, 2023, the 1st Defendant acknowledged owing the sum of US$231 ,408.83. Therefore, that Judgment on admission should be entered in the Plaintiffs favour to avoid further litigation. 3.3. In its legal arguments, which commenced with a factual background, the Plaintiff relied on Order 21 Rule 6 of the High Court Rules and Order 27 Rule 3 of the Rules of the R3 Supreme Court of England (White Book) to su pport this application. 3.4. It was submitted that even thou gh the Defendants did not admit owing the total sum being claimed, the Defendants admitted obtaining the principal sum in paragraph 2 of the defence as well as in the email correspondence. Reference was made to the case of Muyuni Estates Limited vs. MPH Chartered Accountants(sued as a firm)(1l to define the word admission as an acknowledgment, acceptance, concession, disclosure or divulgence. 3.5. It was asserted that the Defendants acknowledged the debt by stating that they were availed banking facilities to which some payments were made. That it is immaterial that there may be outstanding questions to be determined or that what was admitted is not the entirety of the sum claimed by the Plaintiff. To buttress this proposition, the case of Chazya Silwamba vs. Lamba Simpasa(2 l was called to aid. 3.6 . It was argued that in this application, what is of relevance is merely admitting to owing a debt. 3. 7. The Plaintiff further referenced the case of Printing and Numerical Registering Company vs. Simpson'31 which was cited with approval in Colgate Palmolive Inc. vs. Able Shemu Chuka and 110 Others'41 to highlight that parties are bound by terms of a contract they freely entered into and that Courts are bound to enforce them. R4 3.8. It was submitted that based on the fact that the Defendants conceded to the existence of a loan agreement, they are obliged to pay the claimed sum of US231,408.83. 3.9. The Plaintiff prayed that the application be granted with costs. 4. Defendants' Case. 4 .1. The core of the evidence in opposition was that the Defendants had not made admissions in the email correspondence or the pleadings as alleged. That the Defendants clearly stated that they had made several payments and had requested the Plaintiff to account for the sums paid but to no avail. 4.2. It was averred that the statements exhibited in the affidavit in support does not speak to any admission, neither were they subject of the matter before Court. Further, that the reference to the email correspondence was misleading and uncorroborated because there were no suggestions of attachments. 4.3. The Defendants' arguments equally commenced with a background of the case and a submission that there was no basis for the entry of a Judgment on admission. 4.4. It was argued that there was no admission in this matter but that a material dispute existed regarding the amount and interest owed which requires this Court's determination. That the Plaintiff had not demonstrated any admission on the Defendants' part. RS 4.5. It was contended that the law under Order 27 Rule 3 of the White Book does not speak to the circumstances prevailing in this action. Th at there must be express admission for a Court to enter Judgment on admission. It was p ointed out th at acknowledging to having contracted facilities did not constitute an admission of a debt. It was submitted that this application was an attempt to deny the Defendants an opportunity to be heard. This proposition was supported by the case of R vs. The University of Cambridgel5l. 4 .6. It was further submitted that th e Plaintiff failed to demonstrate that th e defence had failed in line with Order 53 Rule 6 of the High Court Rules. Therefore, that this was not a proper case in which to enter a Judgment on admission. 4.7. The Defendants prayed that th e application be dismissed with costs for want of merit and that the action be set down for trial. 5. Hearing. 5.1. The application was h eard on 29 th May, 2024 and Counsel representing the respective parties were in attendance. 5.2 . On behalf of the Plaintiff, Ms. Chibuye placed reliance on the filed affidavit and skeleton arguments dated 15th May, 2024. She added that exhibit "NC l " in the affidavit in support shows an acknowledgment by the Defendants. Ms. Chibuye prayed that Judgment on admission be entered in the Plaintiff's favour. R6 5 .3 . On behalf of the Defendants, Mr. Munalula equally relied on the affidavit in opposition and accompanying skeleton arguments dated 27th May, 2024. 5.4. In reply, Ms. Chibuye reiterated that the correspondence was between the 2 nd Defendant and the Plaintiff and no dispute arose as to the veracity of the correspondence . 6. Consideration and Determination. 6 . 1. I have considered the Plaintiff's application, its supporting documents as well as the documents in opposition. 6.2. It is trite law that this Court is imbued with discretionary powers to enter Judgment on admission in appropriate circumstances. This power is derived from the provisions under Order 21 Rule 6 of the High Court Rules which states that:- "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." 6. 3. The circumstances under which this discretion can b e exercised were outlined by the Supreme Court the case of Himani Alloys Limited vs. Tata Steel Limited(61 as follows:- "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 R7 judgment as it may see fit, having regard to such admission." (Underlined for emphasis) 6.4. Additionally, the admission referred to in the above decision must be clear, unambiguous and unconditional. I am fortified in this view by the holding in the case of Zega Limited vs. Zambezi Airlines Limited and Diamond General Insurance Limitedl7l wherein it was held that:- "The Court, on the examination of facts and circumstances has to exercise its 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 an appeal on 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." 6.5. It is therefore imperative to assiduously examine the alleged admission to ascertain whether the criteria set out above is met. 6.6. The Plaintiff, 1n its evidence in support of this application exhibited email correspondence marked "NC 1" between the Plaintiff and the 1st Defendant, which were said to contain the said admission. It was further asserted by the Plaintiff that the Defendants acknowledged that they had contracted the loan facilities in the pleadings, which according to it, sufficiently constitutes an admission. 6.7. I have carefully examined the email correspondence as well as the pleadings referred to. From the pleadings, I note that R8 the 1s t Defendant did acknowledge a nd admit to the existence of two facilities with specified sums. However, the Defendants averred that the said facilities had been paid in full with the exception of what was termed to be excessive and illegal interest. Therefore, I find that there was no admission of the debt in th e pleadings. 6.8. As regards the email correspondence marked "NC l ", I note that the only email from the 1s t Defendant that appears to resemble an a dmission is the one dated 15th August, 2023 . Therein, the 1s t Defendant wrote th at:- "Morning Delax We expect some payment this week. We had delays for the last 1 month. Will advise once the funds come in. Regards." 6.9. The above, 1n my considered view does not sufficiently constitute an admission. This is owing to the fact that it does not specify that it relates to a particular debt. Additionally, even the preceding emails do not make reference to any particular sum being owed. Therefore, I find that there was no clear, unequivocal and unambiguous admission made in the email correspondence. The sums claimed, a lbeit different in the writ and in this application , have not been clearly or plainly admitted by the Defendant. I am fortified in this finding by the case of Finance Bank Zambia Pie vs Lamasat International Limited(8l in which the Court of Appeal guided 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." 6.10. From the foregoing, it is clear that this is not a proper case in which to exercise the discretion to enter Judgment on admission. 7. Conclusion. 7.1. The Plaintiff's application for the entry of Judgment on admission lacks merit on account that the Defendants had not admitted the claimed sums as alleged. Merely acknowledging the existence of the facilities does not constitute a clear, unambiguous and unconditional admission. 7.2. Consequently, the application for the entry of Judgment on admission is hereby dismissed. 7 . 3. Costs shall be in the cause. 7.4. Leave to appeal is hereby granted. Dated and Delivered at Lusaka this 6 th day of June , 2024 . ............... ~.~ ......... . Chilombo Bridget Maka HIGH COURT JUDGE RlO