China Henan International Economic Technical Cooperation v Mwange Contractors Limited (SCZ/8/235/2001) [2002] ZMSC 170 (25 February 2002)

IN THE SUPREME COURT FOR ZAMBIA SCZ/8/235/2001 HOLDEN AT LUSAKA [Civil Jurisdiction] BETWEEN: CHINA HENAN INTERNATIONAL ECONOMIC TECHNICAL COOPERATION APPELLANT AND MWANGE CONTRACTORS LIMITED RESPONDENT Coram: Lewanikar DO, Sakala JS, Mambilima AJS. On 24th January, 2002 and 25th February, 2002 For the Appellant: Mr. M. Malila of Phoenix Partners Mr. D. Locha of D. H. Kemp & Co. For the Respondent: Mr. A. M. Kasonde of M. Kasonde & Co. JUDGMENT MAMBILIMA AJS, delivered the Judgment of Court. On 24th January, 2002, we heard this appeal and allowed it with costs to the Respondent. We said we would give our reasons later, and this we now do. This is an appeal against the Ruling of the Court below given on 3rd October, 2001 in which the Court entered Judgment on Admission at a Scheduling Conference on the ground that the Defence which was filed by the Appellant did not rebut in full the allegations contained in the Statement of Claim. The Appellant has advanced six grounds of appeal, namely: "1. The Court below misdirected itself in not considering a Judgment given or obtained in the absence of the other party as equivalent to a default Judgment and therefore liable to be set aside, or alternatively that such Judgment is liable to be set aside in its own right. 2, The learned Judge in the Court below did not act judiciously when he failed to consider that a Scheduling Conference afforded the Defendant's Counsel opportunity to make an application including an indication to amend the defence and therefore that it is improper to enter Judgment on admission in the absence of such party. 3. That Court below acted contrary to established practice and procedure in proceeding in the absence of Counsel for the Defendant without in the first place satisfying himself that there was proper service of the Notice of Hearing on the Defendant or its Counsel. 4. The Court below misdirected itself in law when it considered the general traverse contained in paragraph 3 of the Defendant's Defence as an admission of the Plaintiff's claim. s. The Court below misdirected itelf in proceeding with the Scheduling Conference in view of the Plaintiff Counsel's expressed reluctance to proceed in the absence of the Defence. 6. The Court below misapprehended the provisions of the law and the relevant Practice Direction when it held that Judgment on admission need not be applied for by the Plaintiff. He further erred on point of fact when he held that in this particular case the Plaintiff had applied for Judgment.: At the hearing of the appeal, it was evident that the main grievance by the appellant was that the Judgment on Admission was entered at the Scheduling Conference in the absence of its Counsel and that had Counsel been present, he could have had an opportunity to apply to amend the Defence for it to comply with the Practice Directions which govern commercial matters. Mr. Malila, for the Appellant, also submitted that Judgment on admission ought to be entered upon application by a Party and not by the Court on its own Motion. Mr. Kasonde, for the Respondent conceded that had the learned Counsel for the Appellant been present at the Scheduling Conference, he would have had an opportunity to amend the Defence. He argued however that whether such an amendment if made could have introduced a viable defence on merits, is another issue. Rule 2 of the Practice Directions which govern commercial matters states: "2. The Defence shall specifically traverse every allegation of fact made in the statement of claim or counter-claim as the case may be. A general or bare denial of such allegations or a general statement of non-admission of them shall not be a traverse thereof. A Defence that fails to meet the requirements of this direction shall be deemed to have admitted the allegations not traversed and in an appropriate case the Plaintiff may be entitled to enter Judgment on admission." The statement of claim which was filed by the Respondent is very detailed. It explains the facts on which the Plaintiff relies and claims damages for breach of contract. The Defence filed by the Appellant contains three paragraphs: "1. The Defendant admits paragraphs 1 and 2. 2. The contents of paragraphs 3, 4, S, 6, 7, 8, 9 and 10 are denied and the Defendant shall put the Plaintiff to strict proof thereof. 3. SAVE as hereinafter expressly admitted the Defendant denies each and every allegation contained in the statement of claim as through seriatim" This Defence clearly falls far short of the standard required in commercial cases as provided by Practice Direction 2. It does not traverse specific allegations of fact contained in the Statement of Claim. It is a general statement of non admission, containing bare denials. The new dispensation in commercial matters is that Parties must place their cards on the table early in the litigation to assist in narrowing issues of contention and for the real issues in the dispute to surface. It is not prudent for a Party to wait for trial before exposing their side of the story. At the Scheduling Conference, the nature of directions given to chart the course of events in the case depends in the Main, on the issues raised in the pleadings before the Court. At that stage these pleadings are contained in the Statement of Claim and Defence. When issues are well defined in the Statement of Claim and the Defence, the Court is in a position to properly direct the Parties or indeed decide whether to refer the matter to Mediation or Arbitration. In keeping with the Practice Directions, where a Defence in a commercial matter does not satisfy the requirements of Rule 2, the Court is entitled to enter Judgment on admission in an appropriate case. Mr. Malila argues further that the Court can only enter such Judgment on admission upon application either by Motion or Summons. For this proposition, he referred us to Order 27 rule 3 of the Supreme Court Rules and Order 21 Rule 6 of the High Court Act. Order 27 Rule 3 of the Rules of the Supreme Court(White Body) provides: "Where admission of fact or of part of a case are made by a Party to a cause or matter either by his pleading or otherwise, any other party to the cause or matter may apply to the Court for such Judgment or Order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such Judgment or make such Order, on the application as it thinks just An application for an Order under this rule may be made by Motion or Summons". Order 21 Rule 6 of the High Court Rules states that: " a Party may apply on Motion or Summons, for Judgment on admission where admissions of facts or part of a case are made by a Party to the cause or matter either by his pleadings or othetwise". Under these Rules, a party is at liberty to apply to Court for Judgment on admission. In the context of commercial matters, however, Order 53 of the High Court Act provides for a Scheduling Conference to be held after filing of a Memorandum of Appearance and a Defence. If a Defence fails to meet the requirements of Practice Direction 2, "the Plaintiff may be entitled to enter Judgment on admission" This, in our view, does not entail a Party going back to take out Summons or a Motion to enter Judgment on admission. The Judgment can be entered at the Scheduling Conference because this is the time when the Court is considering the pleadings; what directions to give and decide whether the matter should proceed further. The Case Flow Management techniques at play require the Court to be in control of the pace of litigation and properly direct the course of events. It would be absurd to expect a Court which is in control, to pause and wait for an application where clearly the Defence is deemed to have admitted the claim. This is without prejudice to Order 27 Rule 3 of the Rules of the Supreme Court and Order 21 Rule 6 of the High Court Act where a Plaintiff "may" apply by Motion or Summons to enter Judgment on Admission. We allowed this appeal for the reason that the Judgment on Admission in this case was entered in the absence of Counsel and the reason given for the absence of Counsel at the Scheduling Conference was that the Counsel was not aware of the return date of the Scheduling Conference since she was not served with the Notice for the Scheduling Conference. The Record shows that there was no Affidavit of Service filed by the Plaintiff to counteract this position. The Court below ought to have been satisfied with the service of the Notice of Scheduling Conference before entering Judgment on Admission. It is our view that had the Defendant's Counsel been present at the Scheduling Conference, he would have had an opportunity to make an appropriate application to amend the Defence. To this effect, procedural justice was compromised. For these reasons, we allowed the appeal and referred the matter back to the Court below to proceed with the Scheduling Conference. D. M. Lewanika DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE I. C. Mambilima ACTING SUPREME COURT JUDGE 9