Premium Lubricants (Z) Ltd v Ravasia Petroleum Ltd (2025/CRMP/2238) [2023] ZMSUB 23 (24 November 2023)

-1-J- IN THE SUBORDINATE COURT OF THE 2025/CRMP /2238 FIRST CLASS, FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA BETWEEN; c.rusuc OF ZI\MG, -'1 . JUOICIA. RY .~ MAGISTRA1E COURT COIJPLEX ~ PREMIUM LUBRICANTS (Z) LTD • 2 4 NOV 2025 IFF AND SENIOR RESIDENT MAGISTRATE RAV ASIA PETROLEUM LTD '.itFENDANT For the plaintiff: Mr I Ndajoka, Mr T Changu, Messrs. Nawa Mataa Advocates For the defendant: Mr E Kaluba, Messrs. Munkanta Mulenga Legal Practitioners Before: Hon Leah Kabala ta at Lusaka this 24th day of November 2025 JUDGMENT --------------------------------------------- Cases refe1Ted to: 1. Miller v Minister of Pensions (194 7) 2 ALL ER 3 72 2. Hope Bwalya V Blue Lifestyle COAJ CAZ/52/2018 3. Lusaka West Development Company Limited, B. S. K. Chiti (Receiver), Zambia State Insurance Corporation v Turnkey Prope1iies Limited (1990) S. J. (S. C.) 4. Rush and Tompkins Ltd v Greater London Council and Another [1989] AC 5. Tomlin v Standard Telephones & Cables Ltd [1969] 1 WLR 1378 The plaintiff filed into Court Default \Vrit of Summons on the 16/7/2025. The plaintiff claims the sum of K82,998.20, being debt owing by the defendant, plus costs and interest at the bank cmTent lending rate. 1. Sum claimed: K82,998.20; 2. Court fee: K108 .00; 3. Solicitor's costs: nil; 4. Service fee : Kl00.00; -2-J- 5. Mileage: Kl00.00; Total: K83,306 .20 It is worth stating at the outset that the burden of proof in civil proceedings such as the present one lies squarely with the plaintiff. Notwithstanding the defences available to the defendant, the primary responsibility to prove the allegations against such a person remains with the plaintiff on a balance of probabilities. The burden however, shifts on the defendant to establish his defence on the same standard. In Miller v Minister of Pensions (1), it was stated: "It must cany a reasonable degree of probability, but not so high as is required in criminal cases . If the evidence is such that the tribunal says: we think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not". The matter was scheduled for hearing on the 8th October 2025. The plaintiff submitted that they filed into Court a default writ of summons on the 16/7/2025, accompanied by affidavit verifying debt which they were relying on. The amount claimed was K83,306 .02, being amount owed for the supply of lubricants oil which has not been settled in full to date. The defendant submitted that they will rely on the amended affidavit sworn by Farook Seedat on the 25/9/2025. They argued that the plaintiff in their opposition have relied heavily on without prejudice letters, which should not be before the Court. They stated that without prejudice letters are not admissible, RE: Rush and Tomking Limited V Greater London Council (1989) AC 1280, and Zambia State Insurance corporation and another V Chanda ( 1999) SCZJ 9. The Court provided for instances when without prejudice letters could be used. The recent case of Hope Bwalya V Blue Lifestyle COAJ CAZ/52/2018, where the Court reiterated the general rule that without prejudice letters are inadmissible. -3-J- They stated that the said exhibits which come from the affidavit verifying debt specifically PM6, is not admissible before Court. They further stated that the plaintiff has not furnished the Court with the required infonnation for determination of this suit, because the said exhibits, invoices and statements have not been acknowledged by the defendant. They said the statements emanate from the plaintiff and are not acknowledged by the defendant. They stated that the statements are inconclusive and urged the Court to look at PMl0. The plaintiff state that it received Kl 0,000.00 from the defendant but PM7 is showing K19,000.00 as paid. The defendant stated that the plaintiff has not adequately satisfied the Court how the defendant is indebted to the plaintiff for the sum claimed. They prayed that the matter be dismissed for the foregoing reasons. Plaintiff responded as follows. 1. Counsel relying on without prejudice letters. They will rely on the case brought by counsel, and stated that there are times when without prejudice documents can be relied on, merely to show Court that there was an agreement reached, RE: PMS. PMS seeks to confirm what PM6 is saying that there was an agreement reached. That the defendant did act on the agreement and paid the sum ofK19,000.00, of which Kl0,000.00 was payment to offset the sum total of K92,99S.20. leaving a balance of KS2,000.00. PM7 payment is the defendants acknowledging the debt premised on the letter of demand marked PMS. 2. Counsel stated that there was no acknowledgement on the delivery notes that were issued by the plaintiff to the defendant, had there not been any acknowledgement, the defendants would not have responded to the Court process in paragraph 6 in amended affidavit in opposition on 25/9/2025. They agreed they entered into an agreement for the supply and delivery of lubricants to the defendant. That statement confirms that there was an agreement and goods were supplied and delivered to the defendants. -4-J- 3. Further counsel has made response to this claim and has denied or accepted main matter that debt is owed. The goods were supplied and delivered and payment remains unpaid to date. They pray that the Court hears and detennines the matter based on its merits and defendant are compelled to pay the debt and that the matter is rightfully before the Court. DECISION OF THIS COURT The issue of without prejudice was discussed in a plethora of cases including the following: In the case of Hope Bwalya V Blue Lifestyle (2), the Court held the Court held that we have addressed our minds to the holding of the Supreme Court in Lusaka West Development Company Limited, B. S. K. Chiti (Receiver), Zambia State Insurance Corporation v Turnkey Properties Limited (3), in which it was stated that as a general rule, without prejudice communication or correspondence is inadmissible on grounds of public policy to protect genuine negotiations between the parties with a view to reaching a settlement out of comi. The Court went on to cite the case of Rush and Tompkins Ltd v Greater London Council and Another (4). It conceded that this was only but a general rule which meant that there may be situations such as in the case of a settlement, where the issue for determination demands the production for such without prejudice correspondence. In the case in casu, no settlement was reached. In Tomlin v Standard Telephones & Cables Ltd (5), the question arose as to the effect of the words "without prejudice" on ( 1) the admissibility of the letters and (2) the existence of a binding agreement between the parties. The Court held that firstly, the letters were admissible before the Court because the question is the existence of a binding agreement in those letters. Secondly, the Court held the use of the words "without prejudice" solely have the effect of excluding an offer by the letter's writer, if the other party does not accept the offer. However, if the party to which the "without prejudice" offer is made accepts the offer, then a binding agreement is mutually reached. Thus, the words "without prejudice" did not preclude the intention of -5-J- the parties to agree to liability on a "50/50 basis," with solely the question of quantum to be determined. The Court emphasised that the subsequent correspondence of the parties also implicitly accepted that basis of liability, with the Parties negotiating on the basis of a concluded agreement. Thus, the letters constitute a mutually-reached binding agreement on the basis of liability, and the words "without prejudice" do not preclude this binding effect. After considering the authorities aforesaid, there are times when without prejudice letters can be used to show that there was an agreement reached. For instance, in this case PW8 confinns what PW6 was saying that there was an agreement reached. PM6 without prejudice 2/12/2024 states: Please be informed that our client does not dispute owing your client the sums as claimed. However, due to the harsh conditions, our client is unable to settle the sum owed in one instalment. Thus, our client proposed that he settles the debt with instalments of Kl 0, 000. 00 per month until final payment. Letter from plaintiff advocates to defendant advocates, dated 2/12/2024 We are pleased to inform you that we have received instructions from our clients to accept your proposal to settle the total sum of K92,998.20 in instalments of KJ0,000.00 per month ..... PMS is letter of demand for K82,998.20, and overdue instalments of KJ0,000.00 per month for February and March 2025. The defendant acted on that agreement and paid Kl 9, 000.00 marked PM7 towards the debt, Kl 0,000.00 to offset the sum of K92,998.20, balance of K82,998 .20. PM7 is payment of defendant's acknowledgment of debt emanating from PM5, letter of demand for payment of K92,998.20. Paragraph 6 of the affidavit in opposition to default writ of summons: That the contents of paragraph 5 and 6 of the plaintiff's affidavit in support are acknowledged and undisputed to the extent that the plaintiff and defendant herein entered into an agreement for the supply and delivery of lubricants to the defendant herein. This clearly shows that there was acknowledgment of the terms of the demand letter by the defendant. Having looked at the above authorities. I find that the letters without prejudice can be used in this matter to show that there was an agreement reached and -6-J- acknowledged by the defendant including the condition of the 10% debt collection fee in PM6. The defendant responded to the claim by paying K19,000.00 towards the debt, PM7 . Despite several demand follow ups, the defendant has failed or neglected to pay the amount owing to the plaintiff for the supply and delivery of the lubricants. Consequently, the letters constitute a mutually-reached binding agreement on the basis of liability, and the words "without prejudice" do not preclude this binding effect. The plaintiff has proved its claim on a balance of probabilities. I ORDER AS FOLLOWS 1. The defendant to pay the plaintiff the sum of K82,998 .20, (kwacha eighty two thousand nine hundred and ninety eight, and twenty ngwee,) 2. Costs to be borne by the defendant to be taxed in default. 3. The defendant to pay interest at the average short-term deposit rate per annum as determined by Bank of Zambia from time to time from the 16th July 2025, being the date of commencement of the action to the date of this Judgment. Thereafter, at the current Commercial Bank lending rate as detennined by Bank of Zambia till full satisfaction of the Judgment debt. 4. Right to appeal is 30 days. 5. Security for costs on appeal is K5000.00 . Dated at Lusaka this 24th November 2025 Leah Lomadinga Kabalata ----- s . R emor es1 en a i ~ .. >'a Yurnc,,c.. RY . -,r.i ' t BUC OF ZI\M81 ...:i t M "d ~\AGl5!RATE COURT COMPLEX 2 ~ NOV 2025 :it:NIOR RESIDENT MAGIST o x 30202.