Airtel Networks Zambia Plc v James Kumwenda (APPEAL NO. 19 OF 2020) [2021] ZMCA 223 (23 July 2021)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 19 OF 2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AIRTEL NETWORKS ZAMBIA PLC APPELLANT AND JAMES KUMWENDA RESPONDENT CORAM: CHASHI, SIAVWAPA AND BANDA - BOBO, JJA ON: 18th May and 23rd July 2021 For the Appellant: M. Manda, Messrs. Manda, Pasi and Advocates For the Respondent: F. B. Nanguzgambo~ Messrs. F. B. Nanguzgambo and Associates JUDGMENT CHASHI, JA delivered the Judgment of the Court. I -J 2- ' Cases referred to: 1. Rukhsana Mohammed, Mohammed, Ramsha Mohammed (A minor suing by ukhsana Mohammed, her Mother and next Friend) v Ali Gh lam Siddique Mohammed (Sued in his personal capacity and is capacity as Administrator of the Estate of Ghulam Siddi ue Mohammed (deceased) Siddique Anis Ghulam (2012) ZR, V 1 2, 522 2. Standerwick v Royal Ordnance Pie 1966) 8 C. L. 3 . A. J. Trading Company Limited v hilombo (1973) ZR, 55 4. Contract Discount Corporation Li ited v Furlong and Others (1948) 1 All ER 276 5 . Finance Bank Zambia Pie v Lama at International Limited - CAZ Appeal No. 175/2017 6. Green v Rozen ( 1955) 2 All ER, 796 7. Finance Bank Zambia Limited v oel Nkhoma - SCZ Appeal No. 77 of 2015 8. William David Carlisle Wise v E. F. Hervey Limited (1985) ZR, -J 3- • 9. Col Paul Chikuswe Chilanga (Rtd) v Lt. Gen S. A. Chisuzi (Rtd) I Sued in his capacity as the Army Commander - SCZ Appeal I No. 53 of 2017 I 10. Corpus Legal Practitioners v Mwanandani Holdings Limited - ' SCZ Appeal No . 134 of 2010 l 11. Zega Limited v Zambezi Airlines Limited and Diamond Insurance Limited - SCZ Appeal Nol 39 of 2014 12 . Foveros Mining Limited v Bell Equi1pment Zambia Limited - CAZ Appeal No. 115/2018 13. Northwold Investments Ltd v Diamb nd General Insurance Limited - CAZ Appeal No. 135 of 2ol1s 14. Kalyoto Muhalyo Paluku v Gran~y's Bakery Limited, Ishaq Musa, Attorney General and Lusa~a City Council (2006) ZR, Legislation referred to: 1. The Penal Code, Chapter 87 of the ;Laws of Zambia Rules referred to: 1. Rules of the Supreme Court (White !Book) 1999 Edition 2 . The High Court Rules, Chapter 27 9f the Laws of Zambia I 1.0 INTRODUCTION -J 4- I Ruling of Hon. Mrs. Justice 1.1 This appeal emanates from the Ruth Chibbabbuka delivered on I the learned Judge Ruling, I 12 th July, 2019. In the said refused the Appellant's application for entry of judgrlient on admission and to dismiss the counter claim for failure to disclose a reasonable I cause of action and the claims ~ei:1g res judicata. I 2.0 BACKGROUND 2.1 The brief facts leading up to the! Ruling subject of this appeal i are that, the Respondent[ under Cause Number I I 2017 /HB/ 130 commenced proceedings by way of writ of summons against the now Appellant claiming rentals , damages and compensation arising from the Appellant's trespass who dug trenchr~s andi laid optic fibre cables on the I Respondent's land. I I ' 2.2 On 7 th May, 2018 , the parties executed a Consent Order which was endorsed by a Judg~. In the said Consent Order, I the parties agreed inter alia as follows: . I 1) That upon signing and sealing of the Consent I Order, the Respond,ent and the Appellant shall -J 5- I have no further claims against each other in 1. respect to the matter; · 2)The Appellant ! shall pay the Respondent K95, 000. 00 as full and final settlement of the matter; I I 3) The Appellant to reloctite the fibre cables located on the Respondent's prop erty by 31 st May, 2018; and I I 4)That the action agai fist the Appellant dated 28th December, 2017 is wifhdrawn in its entirety. 2.3 In pursuance of clause 2 of the Consent Order, the Appellant I paid the Respondent the sum of ZMW295,000.00 instead of I the agreed ZMW95,000.00. When the Appellant made a demand for a refund of the exc I ess amount, the Respondent admitted to having received thei amount of ZMW295,000.00 but refused to pay and that if what led to the Appellant I commencing an action under Qause No. 2019/HP/0336 for ' the refund of the said sum. 2.4 In response to the claim, the Respondents filed a defence and counter claim. The Appellb t then took out an action that judgement on admissio:n be entered against the Respondent on the basis that t~ e Appellant admitted having -J 6- received the ZMW200,000.00. '. Further, that the counter claim be dismissed for failure to disclose a cause of action and that the issues raised thert!:in were res judicata, having been dealt with in the Consent Order under Cause No. 2017 /HB/ 130. 2.5 In opposing the application, th e Respondent admitted to having received the ZMW 200,000 .00 but alleged that the said money was not erroneously paid to him , as it corresponded with the initial . amount, he sought under cause No. 2017 /HB/ 130. In addition, that the Respondent I believed that the ZMW95,00o.90 that was agreed to be paid by the Appellant was only mean:t to cover monthly rentals up I to 31 st May, 2018. The Respondent maintained that he was entitled to the ZMW200 ,000.0O. 2.6 It was further averred that because the Appellant failed to I relocate their fibre cables by 3:l s t May, 2018 in accordance with clause 3 of the Consent Order, the Respondent counter claimed for rentals and loss of income. 3.0 THE COURT BELOW -J 7- 3. 1 After considering the pleadings and the arguments, the I learned Judge opined that the crux of the matter rested on the question as to how a consent order that has been breached can be enforced by either party to the said consent I I order. 3.2 In resolving this issue, the learned Judge took note of the I fact that neither party had clJ:allenged the Consent Order I I executed under Cause No. 2017 /HB/ 130 but that both parties acknowledged that there had been a breach in I I relation to the terms and conditions that were set out in the i I said Consent Order. 3.3 The lower court considered the terms of the Consent Order I and found that upon signing of, the same, the parties agreed not to have any further claims ~gainst each other in respect I of the matter. The lower court then ref erred to the High l Court case of Rukhsana Mohahlmed, Norman Mohammed, Ramsha Mohammed (Minor suing by Rukhsana I Mohammed, her mother and ! next friend) v Ali Ghulam Siddique Mohammed (Sued itn his personal capacity and I his capacity as Administrator of the Estate of Ghulam Siddique Mohammed (deceased)) Siddique Anis Ghulam 1 I -J 8- where it was held that agreements that purport to oust the jurisdiction of the court are coptrary to public policy and void as a result. 3.4 The learned Judge found that, ! although the Respondent's claims under cause No. 2017 ;kB/ 130 were not adjudged on their merits, the nature of the wrongdoing allegedly committed by the Appellant was ; criminal trespass which fell in the realm of public interest. As a consequence, the Judge held that the portion of the col sent Order that sought to oust the jurisdiction of the court to determine a claim related to the action was void. 3.5 The Judge also found that, the i failure by the Appellant to relocate the fibre cables by 3 i st May, 2018 was a clear I departure from the provisions of the Consent Order and created a new set of facts which the Respondent was entitled I to rely on in pursuit of a fresh ~action by way of a counter i claim. 3.6 The Judge further found that, the Respondent could not enforce the provisions of the Com.sent Order under the same i cause as it was a term of the Cdnsent Order that th e action I I -J 9- under the said cause had been ';Vithdrawn in its entirety. As a result, no further process cduld be filed apart from an i application for costs. 3.7 The court opined that, as a new set of facts had been created I by the Appellant's failure to remove the cables from the Respondent's premises by 31 st ray, 2018, the Respondent I was entitled to claim as against the Appellant from 1s t June, ' 2018. That, therefore, it was premature to enter judgment on I ! admission at that stage in view : of the new facts. On that basis, the court refused to dismiss the counter claim as it disclosed a cause of action and she directed the Respondent I to redo and refile the defenj e and Counter claim in accordance with Order 18/ 18~2) of The Rules of the Supreme Court 1 so that there ~s clear distinction between the defence and counter claim. I 4.0 GROUNDS OF APPEAL 4.1 Dissatisfied with the Ruling of the lower court, the Appellant launched an appeal before this Court, advancing six (6) I grounds of appeal, couched as follows: 1. The Court below misdirectcrd itself both in law and in -J 10- I I I fact when it held that it was premature to enter I judgment on admission in !view of the new set of facts I that had been created by the Appellant's failure to I i I remove the cable from the Respondent's premises. ! 2. The court below misdirecte~ itself in law and fact when ! it held that there was no fy rther process that could be i filed after the entry of the ;consent Order under cause I No. 2017 /HB/ 130 apart frdm an application for costs. I 3. The court below misdirecte~ itself in law and fact when I it held that there was a ne:W set of facts created by the i non - removal of the cable by the Appellant. ! 4. The court below misdirectdd itself in law and fact when I it held on its own motion, that the Appellant committed I i criminal trespass and procr eded to expunge portions of the Consent Order i i s jgned under Cause No. ! 2017 /HB/ 130 on the b ~sis of public policy which I issues were neither before 1the court nor in issue. I 5. The court below misdirected itself in law and fact when I ! it held that the Respotident's counterclaim (in its I original form) disclosed a ~easonable cause of action). I -J 11- 6. The court below misdirected itself in law and fact when it condemned the Appellantj in costs despite the finding ' for the Appellant that the 'Defence and counter claim were defective. 5.0 ARGUMENTS IN SUPPORT I 5.1 Mr. Manda, Counsel for the App:ellant, relied entirely on the i I filed written heads of argument ; dated 14th February, 2020. Counsel argued grounds one and three together and ref erred ! I us to page R12 of the lower court's Ruling where it stated as follows: "As a new set of facts has fbeen created by the Plaintiff not having removed its cable from the Defendant's premises by the 31 st May 2018, the Defendant is entitled I to claim as against the Plaintiff from 1st June 2018. It is I therefore my considered view that it will be premature to i enter Judgment on admissic;n at this stage in view of the I new set of facts that has been created by the Plaintiff's failure to remove the cµble from the defendant's premises." 5.2 According to Counsel, this findirig by the lower court was a -J 12- misdirection as it failed to app reciate that firstly, where there is a clear admission, a party is at liberty to apply for judgment without waiting for the determination of any other I I question between the parties, thus an application for entry of judgment on admission cannot be considered premature. We were ref erred to Order 21 Rule 5 of The High Court Rules 2 and Order 27 Rule 3 of rfhe Rules of the Supreme ' i i I Court 1. 5.3 Counsel further called into aid 1the cases of Standerwick v Royal Ordinance Plc2 , A. J. Trading Company Limited v Chilombo3 , Contract Discount Corporation Limited v I i Furlong and Others4 and FiJiance Bank Zambia Plc v Lamasat International Limited5 . 5 .4 Secondly, that the lower court /in its Ruling, opined that a new set of facts had been created enabling the defendant to : ' ! claim against the Appellant. Ac~ording to Counsel, the said new facts were subject of a : counter claim which is a separate action from the main ~ction. 5.5 It was argued that, the lower <l:ourt failed to appreciate the distinction between the counter claim and the main action -J 13- and that had she done so, s~ e would have found that granting judgment on admission '. would not have affected the i Respondent's right to counter clk.im on the new set of facts. We were referred to Order 15 R4le 2(4) of The Rules of the Supreme Court 1 . It was contended that, the Appellant's failure to remove the I cable from the Respondent's preriises had no legal effect on ! the Appellant's application for judgment on admission. 5.6 In support of ground two, we \\[ere referred to page Rl 1 of ! the lower court's Ruling, where the court concluded that since it was a term of the Consent Order that the matter was withdrawn in its entirety, there :was nothing else that could I be filed in the case as it stood withdrawn. In arriving at this I i i I ! conclusion, the lower court relied on the Mohammed 1 case. 5.7 According to Counsel, the Mohammed 1 case was misapplied I in that, in the present case , theire were specific orders made I I I i by the court, which were the b[asis upon which the parties i agreed to withdraw the matte'r and in the event of any I I breach, the innocent party was ; entitled to enforce the order in that cause. 5.8 It was argued that, a consent order is like any other order of -J 14- the court only that it is made wi~h the consent of the parties. ! I Counsel relied on Order 42/ ~A/4 of The Rules of the I I Supreme Court 1 and submittf d that a consent order is I enforceable in the ordinary course of court business and I that therefore , there was nothing that prohibited the Respondent from enforcing the judgment that ordered the removal of the cable by 31 st Mat , 2018. ! : That the mere fact that the m a tter stood withdrawn, did not I render the Consent Order invalid or unenforceable. Counsel i ! ref erred to the case of Green ~ Rozen 6 . In support of ground four , ou~ attention was drawn to page i I I 5.9 Rl0 of the lower court's Ruling, where it held as follows: ! I I ! I I i I I I I I I i I I I I "Nonetheless, though the / claim was brought to court by way of civil suit it is apparent that the nature of the wrongdoing purportedly : committed by the Defendant I I I I which is criminal trespas/s in that matter is one of public interest. Consequently, f hold that the portion of the I I Consent Order that see~s to oust the jurisdiction of the I I courts to determine a c(aim related to the action of the I Defendant which action / is still subsisting as evidenced I -J 15- I from the submissions by boJh parties in the present case i I is void." I I 5 . 10 Counsel argued that, the aboye holding is a misdirection and it is inconsistent with the definition of criminal I trespass provided for in sectiqn 306 of The Penal Code. 1 According to Counsel, in the present case, the Appellant unintentionally laid its oJjtic fibre cables on the I i Respondent 's land and there ~ as no intent to commit any i I I offence or to enter onto the Respondent's land. That the I Appellant was only made awak-e afterwards and the matter I Order. was settled by way of consent I I It was further submitted thar, the Consent Order did not I i I raise issues of public policy. It was an agreement which the I I court ought to have given effect to. And the fact that the I parties agreed not to bring a)ny other claims against each ! other did not mean that the I court's jurisdiction had been I ousted. We were referred ti the case of Finance Bank I Zambia Limited v Noel Nkhoma7 . I I It was argued that, a conserh order being a valid order of ! the court, the learned Judge/ had no jurisdiction to reverse 5.11 5 . 12 an order of another High Court Judge in the absence of an -J 16- f application challenging it. 5.13 With regard to ground five , it was argued that, although the ! lower court agreed at page ~ 13 of the Ruling that the ! counter claim was irregular in form, the court still found i I that it raised a reasonable caut e of action. Counsel referred us to the counter claim appeaiing at pages 42 of the record and submitted that it did q ot disclose any reasonable I cause of action. We were ref erred to Order 18 Rule 19 ! I Rules of The Rules of the ~upreme Court 1 and it was submitted that I I in determirp.ing whether the pleading discloses a cause of action, dvidence is inadmissible , that I I therefore, the court ought n 9t to look at the evidence on i record but consider the pleadib gs at face value. I It was contended that in the /instant case, the lower court I I went beyond the pleadings arid considered new set of facts. i We were referred to William / David Carlisle Wise v E. F. I Hervey Limited8 . According to Counsel, a pel usal of the contents of the counter claim reveal that ther e were no facts disclosed and i I no disclosure of any head of/ liability at law, as a result, it was unknown whether the claim was 1n tort, contract or statutory duty. We were referred to the case of Col. Paul Chikuswe Chilanga (Rtd) v Lt. Gen S. A. Chisuzi (Rtd) i ' I Sued in his capacity as the Army Commander9 . -J 17- i I I I I I I I ! ! 5.14 In Support of ground six, it wa!s argued that it is trite law that the award of costs is with~½ the discretion of the court. I I Counsel called into aid t~ e case of Corpus Legal I Practitioners v Mwanandan'.i Holdings Limited 10 and I I submitted that the court did ! not exercise its jurisdiction I judicially. At page Rl3 of thci Ruling, the court found in I favour of the Appellant and ordered amendment of the pleadings entailing that the Appellant was a successful I party. That the Application h;aving been prompted by the i I defects in the Respondent's ! pleadings, the Respondents I ought to bear the costs. We w~re urged to allow the appeal. I 6.0 ARGUMENTS IN OPPOSITION 6.1 Counsel for the Respondent,; Mr. Nanguzgambo, equally I I relied on the filed written h t ads of argument dated 20 th i March, 2020. In response to ground one and three, Counsel I submitted that, the lower cout t was on firm ground when it I -J 18- held that it was premature to eiiter judgment on admission I I as a new set of facts had been created by the Appellant's failure to remove the fibre cableJ by 31 st May, 2018. It was argued that to date, the! said cables are still on the I I I Respondent's land which is ccintrary to the terms of the i Consent Order. Counsel referre~ us to the case of Finance Bank Zambia Pie v Lamasat 1nternational Limited5 and i I I submitted that the Respontj.ent's admission was not I unequivocal to warrant the ent~y of judgment on admission. I ! It fell short of the requiremen1s that ought to be satisfied I before such an order can be grapted. Counsel further referred us 1to the Consent Order and I I i submitted that, based on the iw;ohammed 1 case, the learned Judge cannot be faulted whf n she held that no other proceedings could be taken in/ the withdrawn action, for it I was extinguished by the withdr;awal and that the only option I I 6.2 left was to commence a fresh a dtion on the new set of facts . 6.3 With regards to the disclosure of reasonable cause of action, it was argued that, the learnejd Judge correctly found that I the Respondent's amended :defence and counter claim I ' appearing at pages 41 of the r ecord disclosed a reasonable I I cause of action. And that, the learned Judge, correctly I -J 19- observed that the format of the said defence and counterclaim were contrary to Order 18 Rule 18(2) of The I I I Rules of the Supreme Court• r d she accordingly directed that the Respondent redo his pleadings. 6.4 With regards to ground six, ~t was submitted that, the I I Appellant's application in the coµrt below was twofold, firstly I I it was dealing with entry of ji dgment on admission and I secondly, with the dismisJal I of the Respondent's counterclaim on grounds that itJ was res judicata and that it i ! was contrary to the provisions t f Order 18(18) of The Rules of the Supreme Court 1 . / i 6.5 According to Counsel, the low~r Court dismissed the first issue but upheld the Appellant s application on the second I issue and ordered amendment / of the counter claim within I 14 days. The Appellant was th erefore, partially successful and was not entitled to dismiss the appeal. costs. We were urged to I i I . i c anh I I I I 7.0 DECISION OF THIS COURT -J 20- 7.1 We have considered the evidence on record, the impugned Ruling of the lower court and the submissions by both . parties. I I , I ' 7.2 We note that, at page R7 of the kuling, the learned Judge in arriving at her decision opined that, the crux of the matter rested on the question as to hol a consent order which has ' i been breached can be enforqed by either party to the consent order. ' I I ! In our view, the lower court forb ulated the wrong issue for determination. Upon perusal of the record, it is clear that the application before the J-qdge was for judgment on ' admission, therefore, all the Jjudge needed to do was to ' I consider the facts before her arid determine whether or not there was an admission of liability by the Respondent. I 7. 3 Order 21 Rule 6 of The High C~urt Rules 2 under which the Appellant sought entry of judgment on admission provides i I as follows: "A party may apply, o motion or summons, for cancelled judgment on adm1·ssions where admissions of -1 21- I facts or part of a case are 11(1-ade by a party to the cause or matter either by his pleadings or othenvise" I I Similarly, Order 27 Rule 3 of The Rules of the Supreme Court 1 provides that: "Where admissions off act I r of part of a case are made by a party to a cause or malter either by his pleadings or I othenvise, any other party! to the cause or matter may apply to the Court for sucf judgment or order as upon those admissions he may de entitled to, without waiting i for the determination of any other question between the I parties and the Court may )give such judgment, or make I such order, on the application as it thinks just. An I application for an order under this rule may be made by I motion or summons." 7. 4 It is clear from a reading of the ;said provisions that they are enabling prov1s1ons and i a..ie neither obligatory nor dictatorial. For that reason, the court has discretionary ! power to grant judgment on j'admission and such power I ought to be exercised sparing y. In our recent decision of ! Finance Bank Zambia Pie I v Lamasat International -J 22- Limited5, which has also stated as follows: i beei i I cited by both parties, we <<Jt is trite that the court has discretionary power to enter judgment on admission u 1der Order 21 Rule 6 of the I High Court Rules. This power is exercised in only plain i I cases where the admissio'ri is clear and unequivocal. There is a plethora of deci~ions on the admissions and I entry of judgment. An adry,ission has to be plain and I i obvious, on the face of it w ithout requiring a magnifying I i glass to ascertain its meaJing. Admissions may be by I i ! , pleadings or otherwise... The requirements to be s dtisfied before the court can I ! pronounce or enter a judgm, nt on admission are that the I admissions have been maqe in either the pleadings or otherwise, and must be cledr and unequivocal. " I ' 7. 5 Further in the case of Zega Limited v Zambezi Airlines i Limited and Diamond Insura~ ce Limited 11 , the Supreme Court stated as follows: «we wish to state from the outset that it is true that under both Order 21/6 of fhe HCR and Order 27/3 of I the RSC the court is empqwered to enter judgment in -J 23- i favour of a party based on ~he admissions of fact made i by the other party on its qlaims(s). However, we must I also hasten to mention tha~ the position of the law as I spelt out under Order 27i / 3/ 2 of the RSC is that I I • admissions of liability byl the party against whom I I judgment on admission is sought to be entered may be I I I express and or implied andi that the admission must be clear. This position was ecl oed in the case of Himani I i Alloys Ltd vs Tata Steel Limited in which the Supreme Court of India made it blear, inter alia, that the admission must be a conscibus and deliberate act of the I party making it and showing an intention to be bound by i i it. And that unless the adm~ssion is clear, unambiguous and unconditional, the discr~tion of the Court should not be exercised to deny the valLable right of a defendant to I I contest the claim against hiry-. " 7 .6 In light of the authorities referred to above, it is clear that in i exercising its discretionary pow;er, the court must bear in mind that a judgment on admiJsion is a judgment without trial which essentially denies the defendant of his right to contest the claim. In short, t~e discretion of the court I I -J 24- should only be exercised when : there is a clear, categorical and unequivocal admission whi¢h can be acted upon. ' I 7.7 On a further interpretation of ~ e provisions referred to, the use of the word "otherwise" suggests that it is open to the i Court to base the judgment :on admissions dehors the I j I pleadings, such as statemed ts i I made by a party or correspondences exchanged beti een the parties. ! 7.8 That being said, we have peruseq the record and at pages 68 I - 69 of the record is the Appell~ t's letter of demand dated I 13th February 2019 sent to the Respondent, wherein the i I i I Appellant demanded for a reful[ld of the ZMW200,000.00. In response to the letter of deml d, the Respondent wrote a I letter dated 19th February, 2019 ! appearing at pages 83 - 86 I I of the record, in which the I Respondent acknowledged receipt of ZMW200,000.00 but 7 enied that the said amount i was erroneously paid to him. t he Respondent refused to I refund the money and maintain~d that he was entitled to it. The Respondent subsequently i ote another letter dated 1st I May 2019, appearing at page 6 ~ of the record and it reads in part as follows: I ! -J 25- I I I "RE: K200,000.00 OVERiPA YMENT IN CONSENT JUDGMENT JAMES I KUMWENDA vs AIRTEL NETWORKS ZAMBIA PLC (2017/HB/ 130) I Admittedly, when I the payment of r1ceived I K295, 000. 00 I was convinced that it was my legal i money because it tallied U1ith the total of my claims. I Admittedly too, the length ~f time that passed before I was made aware was too lqng for me and my family not ! I to have spent the money. Having said this, we would like you to avail me and my family time to come to Lul aka and sit with you at a round table and discuss fhe way forward. We also i would like to put forward bur proposals as regards to settling the K200, 000. We would like to also discuss I other issues concerning bot4 parties. We hope and trust I that after this meeting all is1ues concerning both parties I will be settled once and f ~r all so that we can both I continue living in harmony ... ; Yours Faithfully Signed James Kumwenda" -J 26- 7. 9 In our view, this letter dated 11s t May, 2019 indicates an admission by the Respondent ;that he received the excess I ZMW 200,000.00. In the said !letter, the Respondent even went as far as requesting to tneet with the Appellant in ! order to put forward proposals as regards settling the l ZMW200,000.00. This in or-r ! . . view 1s a clear and unambiguous admission on thy part of the Respondent. It is intentional and indicates a ~eliberate act on the part of ' the Respondent to act on its admission and to be bound by I i it. 7.10 Notwithstanding this clear admission of liability by the I Respondent , we will proce~d to also consider the Respondent's defence appearip g at pages 41 - 42 of the I ' record. We note that, the Respondent via its defence ! : I . attempted to circumvent the t ~rms of the Consent Order by ! I alleging that the payment of ZMW200,000.00 was not an i overpayment but was the almount owed to him as it I I corresponded with his initihl claims I in the writ of summons. As we see it, the is$ues raised in the defence fly I I in the teeth of the principles gdverning consent orders. -J 27- J 7.11 It is evident that the claims r .sed in the writ of summons under cause No. 2017 /HB/ 13b were resolved by way of a Consent Order. The consent order being contractual in nature, the parties of their own volition agreed to the terms contained therein, which wer~ merely confirmed by the I I Judge . Therefore, the Respon1 ent cannot now claim that I he was still entitled to the · ZMW200,000.00 when he i agreed to receive ZMW95,000. 1 0 as full and final payment. The consent order, having th~ effect of an order of the court, is legally binding on the parties to it and as a result, the parties are estopped from r neging on their agreement. 7.12 We therefore , hold the view that, had the lower court considered the pleadings and t he correspondence between I the parties, it would have foljlnd that there was a clear I admission of liability on the p r t of the Respondent in the sum of ZMW200,000.00. The ~ower court, therefore, ought to have entered judgment acco~dingly. 7 . 13 We also note that the lower court declined to enter I judgment on admission on aclount of the fact that a new set of facts had been created by the Appellant's failure to remove its fibre cables from thJ Respondent's land. I I I J ' & -J 28- 7.14 While we do agree with the tri:al Judge that the failure to remove the fibre cables in accdrdance with clause 3 of the Consent Order, created a new set of facts upon which the Respondent could make a fresh claim, our point of I i l departure is that the said claim was indeed, subject of the I Respondent's counter claim an'.d as such, it ought to have I been considered as a separate 1ction from the main action. In the case of Foveros Mining :Limited v Bell Equipment I I 7.15 Zambia Limited12 we held thatl i "The law that a counter-clailm is a distinct action is well established. The mere fict that the Appellant is challenging the acknowl~dgment of debt in its ' counterclaim cannot be useJ as a basis for setting aside I ! the judgment on admission rgranted to the Respondent." 7.16 Further, in the case of Northwqld Investments Limited v i Diamond General Insurance Llmited 13 i I , we held that: "counterclaims are proceed~ngs in their own right and the rules relating to costs apply in equal measure." I 7.17 In light of the cases referred ~o above, the counterclaim being an action in its own righl, should not have operated as a bar to entering judgment on admission. An entry of i l e,. . ' • -J 29- Judgment on admission wo ld not have affected the Respondent's right to countercl ·m on the new set of facts. The learned court, therefore, m sdirected itself when it held that it was premature to ente judgment on admission in view of the new set of facts t at had been created by the Appellant's failure to the cable from the Respondent's land. 7.18 In the view that we have taken, we accordingly set aside the Ruling of the lower court dee 'ning to enter judgment on admission and hereby enter ju gment on admission in the admitted sum of ZMW200,0 0.00 which shall attract interest at short-term comm er ial bank rate from the date of the writ until date of Jud ment and thereafter at the current lending rate as deter ·ned by the Bank of Zambia merit in grounds one and thre 7 . 19 Coming to ground two of the ppeal, the Appellant assails the lower court's holding at p ge R 11 of the Ruling to the effect that the Respondent cou d not enforce the provisions of the Consent Order because ·twas a term of the Consent Order that the matter had be n withdrawn and that as a -J 30- result, no further process co ld be filed apart from an application for costs. 7.20 As earlier stated, a consent ord r is a judge approved order and as such, it has the effect of a judgment of the court and can be enforced like any ju gment of the court if one of the parties were to breach t In the case of Kalyoto Muhalyo Paluku v ranny's Bakery Limited, Ishaq Musa, Attorney and Lusaka City Council 14 the Supreme Court "Whether all the parties to cause or matter are agreed upon the terms in which ju gment should be given or an order should be made, a ju gment or order in such terms may be given effect as aju gment or order of the Court." 7 .21 Therefore, the learned Judge isdirected herself when she held that the consent order, w ich as seen above, has the effect of judgment of the cour , could not be enforced. As correctly argued by Counsel fo the Appellant, the Consent Order contained specific order which had to be effected by a certain time and the Appel ant having breached those terms, it was only logical that the Respondent enforce the Order of the court. I I • -J31- i 7.22 In our view, it was not the intJ ntion of the parties that by the inclusion of a clause stipr ating that the action had ! ; been withdrawn, meant that the consent order itself could not be enforced. It being a jr dgment of the court, the Respondent had every right t enforce it as opposed to commencing a fresh action. 7 .23 For the above reasons, we agree with Counsel for the Appellant that, the Appellant, ~ aving breached clause 3 of ! the Consent Order, the Responr ent ought to have enforced the consent order like any other judgment of the court. I Nonetheless, it is our vie, I , I that no prejudice was occasioned on the Appellant by; the Respondent proceeding by way of a counter claim. Tb the extent that the lower I ! court misdirected itself when! it held that the Consent Order could not be enforced, w 1 find merit in ground two of the appeal. 7.24 With regard to ground four, the Appellant attacks the lower court's finding that a portion qf the Consent Order sought to oust the jurisdiction of the cburt. We have observed that in arriving at that conclusion ) the learned Judge heavily i I , I ! " .. -J 32- relied on the Mohammed 1 and declared the said clause of the Consent Order voir . ' 7.25 We have had the opportunity to read the Mohammed 1 case, and in our view, the said case I was wrongly applied to the facts of this case. In that case the court was dealing with an ouster clause contained in a consent agreement which sought to exclude the jurisdictirn of the court, whereas, in I the present case, the court was dealing with a consent order, which is for all intents J d purposes an order of the court confirming the agreement! between the parties. I ' 7.26 We, therefore, agree with Counst l for the Appellant, that the learned Judge was wrong in int~rfering with the contents of the Consent Order given byl another Judge of equal jurisdiction and on its own m , tion in the absence of an application or fresh action by e1 her party. We find merit in ground four of the appeal. I ! 7.27 Coming to ground five, the AJpellant assails the Judge's finding at page Rl3 of the Rulit g, that in its original form, i the counterclaim disclosed a ca~ se of action. We have perused the Respondent's defence and counter I I claim appearing at pages 41 - ~2 of the record, and while f { I ~ -J 33- we do agree that the format Qf the defence and counter claim in its current state offendJs the provisions of Order 18 ! of The Rules of the Supremle Court2 , as stated under paragraph 7.14 above, we agr~e with the trial Judge that i the Appellant's failure to remo!ve the fibre cables, created i I new set of facts upon which tt e Respondent could claim. On that basis, the learned J-udge cannot be faulted for ! I finding that the counterclaim ~isclosed a reasonable cause ! of action. And she correctly ordered that the pleadings be amended. Ground five fails 7 .28 With regard to ground six dealing with the award of costs , it has long been established th~t costs follow the event. We, I I therefore concur with Counsel ~or the Respondent that the I ; Appellant in the court below ~ as only partially successful in its claims and as a result, d ~d not entitle them to costs . I ! ' In any event, costs are in the d~scretion of the court and in ! I our view, such discretion was 1 exercised judiciously. We see no basis for setting aside thr order of the court. Ground six fails. I l ( I • ·! 8.0 CONCLUSION -J 34- 8.1 The net effect of our decision is that, the Appeal having substantively succeeded, we ort er that the matter be sent back to the High Court lbr determination of the counterclaim before another Jud ge. Costs to the Appellant, to be : aid forthwith. Same to be I i ! J. CHASHI COURT OF APPEAL UDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE I ,> A. IM. BANDA- BOBO COURT OF APPEAL JUDGE