Danubia HI (Pty) Limited v We Create Entreprenueral Centre Zambia Limited (2023/HPC/0680) [2024] ZMHC 214 (19 February 2024)

IN THE HIGH COURT FOR ZAMBIA 2023/HPC/0680 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DANUBIA HI (PTY) LIMITED PLAINTIFF AND • WECREATE ENTREPRENUERAL CENTRE ZAMBIA LIMITED DEFENDANT Coram: Hon. Lady Justice Chilombo Bridget Maka For the Plaintiff: Mr. B. Mwanza - Messrs. Nsapato & Co. Advocates For the Defendant: Mr. S. F. Chipompela - Messrs. Joseph Chirwa & Co. 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. Zega Limited vs. Zambezi Airlines Limited and Diamond General Insurance SCZ Appeal No. 39 of 2014 2. Finance Bank Zambia PLC vs. Lamasat International Limited CAZ Appeal No. 175 of 2017 3 . Motherland Enterprises Limited vs. Trumpet Security Systems Limited (HP1829/2019) 4. Larfarge Zambia Limited vs. Mwenya Chambula (Trading as Bubu Trading) 2018 ZMHC 280 5. France Bank Zambia PLC vs. Lamasat International Limited Appeal No. 27 of 2018 6. Kafue District Council vs. James Chipulu SCZ No. 13 of 1997 7. Chikuta vs. Chipata Rural Council 1974 ZR 241 8. Shell and BP Zambia Limited vs. Cornidaris and Others (1974) ZR Page 9. Muyuni Estate Limited vs. MPH Chartered Accountants (2013) Vol 2 ZR 120 [2020) ZMHC 294 10. Post Newspaper vs. Rupiah Bwezani Banda SCZ No. 25 of 2009 11. China Henan International Economic Technical Corporation vs. Mwange Contractors Limited 2002 ZR 2 1. Introduction 1.1. On 22 nd January, 2024, the Plaintiff took out summons for Judgment on admission pursuant to order 21 Rule 6 of the High Court Rules as read together with order 27 Rule 3 of the Rules of the Supreme Court, 1999 edition. 1.2. The summons was accompanied by an affidavit in support and skeleton arguments. The Plaintiff filed an affidavit in opposition and skeleton arguments on 30th January, • e 2024. 2. Background 2 .1 The plaintiff commenced action against the defendant on 2 nd October, 2023. The Plaintiffs claims as indorsed on the R2 writ of summon s which was accompan ied by a statement of claim were a s follows:- i. Immediate repayment of the sums due and owing being EUR 7,590.00 and USD 18,781 .00. ii. An order compelling the Defendant to furnish the Plaintiff with withholding tax certificate(s). iii. Damages for breach of Contract. iv. Interest on the sums due . v. Costs for and incidental to these proceedings. 2.2 The defendant entered app earance and filed defence on 16th October, 2023. Th is is what prompted the Plaintiff to file the current application. 3. The Plaintifrs Affidavit in Support 3.1 The affidavit was deposed to by Mr . Beard Mwanza, counsel seized with con duct of the matter on behalf of the Plaintiff . 3.2 The gist of the dep osition b eing that upon his study of the defence , he concluded that it was replete with admissions and bare denials . 3.3 It was deposed that the defendant has admitted to owing the Plaintiff EUR 7,590.00 in paragraph 5 and 7 of its defence. Fur ther that a reading of paragraph 6 of the defence, reveals that the defendant has admitted owing • • R3 USD 18 ,781.0 0 . That th e defendant however dis putes the amount purporting that it is inclusive of withh olding tax. 3.4 It was Mr. Mwanza's deposition that this is a fit and proper case for the Court to exercise its jurisdiction to enter judgment on admission. Fur ther t h at th e admissions are clear a nd u nequivocal a nd as such judgmen t on a dmission should b e entered . • 4 . The Plaintiff's Skeleton Arguments • 4. 1 The submissions began with a citation of Order 21 Rule 6 of the High Court Rules and Order 27 Rule 3 of the Su preme Court Ru les of England upon which the a pplication is anchored. 4.2 It was su bmitted th at pursuan t t o th e cited p rovision s, the Court can grant judgm en t on a dmission based on the party's admission s in th e pleadings. 4 .3 The cases of Zega Limited vs. Zambezi Airlines Limited and Diamond General Insurance( 1 ), Finance Bank Zambia PLC vs. Lamasat International Limited(2 ), Motherland Enterprises Limited vs. Trumpet Security Systems(3 ) and Larf arge Zambia Limited vs. Mwenya Chambula Trading as Bubu Trading(4 l were quoted to show th e jurisprud ence on J udgment on ad mission. The common prin ciple bein g that the Court's discretionary power to en ter judgmen t on a dm ission can only be R4 exercised in plain cases where admission 1s clear and unequivocal. 4.4 The Plaintiffs contention was that the admissions by the defendant were clear and unambiguous. Reference was made to paragraph 5, 6 and 7 of the defence which according to the Plaintiff contained uncompromised admission of liability by the defendant. 4 .5 The other limb of the submission was that the defence shows that the defendant does not make any specific traverse of the claims before Court as it avers bare denials. That such bare denials should be construed as admissions in line with Order 53 Rule 6(2-5) of the High Court Rules . 4.6 The Plaintiff urged the Court to enter judgment on admission on all claims and Order that the defendant avails tax clearance certificate relating to withholding tax. 5. The Defendant's Case 5.1 The affidavit in opposition was filed into Court on 30th January, 2024 . The defendant's director Ms. Nambula Kachumi swore the affidavit. 5.2 The gist of the evidence was that the defendant did not admit that it owed the Plaintiff the sum of USD 18,781. The defendant however admitted that it owed the Plaintiff the amount of EURO 7,590,00 which was accrued under the EURO Contract. • • RS • • 5.3 The defendant contended that the principal sum owed with regard to the claimed sum of USD 18,781, was in contention in so far as it included interest and tax obligations. Th e defendant's averment was that it did not make any admissions to owing the claimed said sum of . monies. 5 .4 It was further deposed that this Court can not enter judgment on admission as there was no clear and unequivocal admission towards the principal amount which was unliquidated at the moment. 5 .5 Ms. Nambula further deposed that the affidavit in support of the application was deposed to by Counsel for the Plaintiff. That Counsel should not have deposed the affidavit in a contentious application rather he should have deposed to procedural matters. 6. The Defendant's Skeleton Arguments 6.1 The Defendant acknowledged that this Court has discretionary powers to enter judgment on admission. This power is derived from Order 27 Rule 3 of the Rules of the Supreme Court 1999 edition which was cited. 6.2 As regards the essential elements that must be satisfied for the Court to enter a Judgment on admission, Dr. Matibini's book, titled Zambia Civil Procedure, Commentary and cases was quoted. R6 • 6.3 It was argued based on th e above orders and authorities, that this Court should not gran t judgmen t on admission as the defendant disputes owing the Plain tiff th e principal sum of USD 18,7 81. Consequently, th at th ere was no clear and unequivocal admission from the defendant. 6.4 The cases of Finance Bank Zambia PLC vs. Lamasat International Limitedl5l and Zega Limited vs. Zambezi Airlines Limited and Diamond General Insurance Limited11I, were cited in support of the submission that where there is no clear and unequivocal admission, the Court cannot enter judgment on a d m ission. 6.5 As regard s Counsel for the Plaintiff deposing th e affidavit, it was submitted th at th e affidavit is invalid both in substance and form , and as such must not b e con sidered by Court . 6 .6 The cases of Kafue District Council vs. James Chipulu161 and Chikuta vs. Chipata Rural Counci1171were cited to • posit t h at Cou nsel is precluded from swearing affidavits on b ehalf of clients wh ere the matter is contentiou s. 6 .7 Further cited was the case of Shell and BP Zambia Limited vs. Cornidaris and Others181 were the Court held that it is h ighly u ndesirable that legal practitioners should introduce evidence by swearing affidavits; the contents of wh ich are hearsay. R7 6.8 Counsel urged the court not to consider the affidavit in support of the Plaintiffs application as it was sworn by Counsel. 6.9 The Defendant's prayer was that the application for judgment on admission should be dismissed with costs. 7. Affidavit in Reply • 7.1 The affidavit in reply is dated the 9 th February, 2024. It was deposed to by Mr. Beard Mwanza, Counsel seized with conduct of the matter on behalf of the Plaintiff. 7 .2 Counsel insisted that the defendants pleadings reveal • clear and unequivocal admissions. 7 .3 As regards averments that he swore the affidavit, Counsel deposed that the same was not wrong as the deposition do not pertain to contentions of facts that are not within his knowledge. That he reviewed the pleadings and believed that they contain admissions. 7.4 The skeleton arguments that accompanied the affidavit in reply were largerly a repetition of the skeleton arguments in support. 7 .5 In urging the Court that this is a fit and proper case to enter judgment on admissions, paragraphs 5, 6 , and 7 of the defence were reproduced. It was submitted based on the quoted paragraphs that the defendant had admitted liability, which admission was clear and unequivocal. R8 • • 7.6 The case of Muyuni Estate Limited vs. MPH Chartered Accountantl9 ) was cited on the meaning of admission. It was in that r egard submitted that the defence entirely acknowledged , or accepted that th e defendant owes a debt to the Plaintiff with regard to the dollar amount as what was disputed was the amount claimed. 7.7 As regards th e submission that the affid avit in support is invalid because it was sworn by Counsel, Mr. Mwanza argued that the submission had no legal backing. That the author ities cited are not applicable to this case as the issues in th e affidavit are matters relating to pleadings and points of law. 7 .8 It was the Plaintiffs submission th at Counsel for the Plaintiff rightly deposed th e affidavit. That the averments contains no hearsay as th ey per tain to matters perceived by Counsel. The case of Post Newspaper vs. Rupiah Bwezani Bandal10 ) was cited to posit the holding of the Supreme Court that the Chikuta case did not impose a blanket ban on swearing of affidavits by Coun sel. 7.9 It was reiterated that the rnle against Counsel swearing affidavits applies where hearsay allegations are made and where there are contentious factual matters. Counsel argued that the submission that the affidavit is not valid has no merit and should be dismissed. 7.10 Counsel u rged the Court to enter judgment on admission with costs . R9 • • 8. Hearing 8.1 At the hearing of the application, both parties were represented by Counsel. On behalf of the Plaintiff, Mr. Mwanza informed the Court that he was relying on the affidavit in support, affidavit in reply and respective skeleton arguments . 8.2 In addition, Counsel submitted that the issue for determination was whether or not the defendant's pleadings contain admissions for the Court to enter judgment on admission. Counsel reiterated that a review of paragraphs 5 and 7 of the defence contain clear admissions of the defendant owing the Euro amount whilst paragraph 8 contain admission of the Dollar amount. It was further reiterated that the defence as a whole contain bare denials which amount to admissions. 8.3 As regards the dollar amount, it was submitted that the defendant denies owing the exact amount but not that it owes the Plaintiff. 8.4 Counsel's submission was that judgment be entered with regard to the dollar amount and the matter be set for assessment of the actual amount payable. 8.5 As regards submissions relating to Counsel deposing an affidavit, Counsel repeated the arguments in the written submissions. 8.6 Counsel reiterated that this is a proper case to enter judgment on admission with costs. RlO 8.7 Mr . Chipom pela also informed the Court that he was relying on the affidavit in opposition and skeleton arguments . 8.8 He confirmed that the defendant had admitted owing the plaintiff the sum of EUR 7,590.00. That what was denied was the sum of USD 18,781.00 as pleaded in paragraph 8 of the defence and paragraph 7 of the affidavit in opposition. The defendant's argument being that the amount claimed by the plaintiff is a combination of tax and interest that was not agreed to by the parties in their contract. 8.9 Counsel advanced the view that referring the matter for assessment could not work because the principal amount has not been disclosed as well as the rate of interest. Further that the issue of withholding tax will be left hanging at assessment. • 8 .10 As regards the arguments relating to Counsel deposing an • affidavit, Counsel relied on the case of Kafue District Council vs. James Chipulu(6 ), cited in the written skeleton arguments . Counsel urged the Court to expunge the affidavit sworn by Counsel. 8 .11 Lastly, Counsel submitted that costs be in the cause or each party to bear its own costs. 8.12 Mr. Mwanza's submissions in reply was that the issue of the principal amount and interest payable will be ascertained at assessment. Rll • • 8.13 As regards the defendant's submission that the issue of withholding tax will be left hanging at assessment, Mr. Mwanza's reply was that the Court can make an order accompanying the judgment on admission that withholding tax be paid or the Certificate of tax be availed. 8.14 As regards the prayer that the affidavit in support be expunged from the record, Counsel submitted that the application was being made in an affidavit in opposition instead of being brought by summons in accordance with order 30 Rule 1 of the High Court Rules . 8 .15 Lastly that though costs are in the discretion of the Court, the general rule is that costs follow the event. Counsel reiterated his prayer that the application should be granted with costs. 9. Consideration and Determination 9 . 1 I have considered all the affidavit evidence and the skeleton arguments by both parties . 9.2 It is trite law that Order 21 rule 6 of the High Court Rules grants this Court discretionary power to enter judgment on admission. The Order is couched as follows: i. A party may apply, on motion or s ummons for judgment on admissions where admission of facts or part of t h e case are made by a party to the cause or matter e ither by h is pleadings or otherwise". R12 -~--------• 9 .3 Or der 27 Ru le 3 of the Rules of th e Supreme Cou rt equally relied upon in support of the application enacts as follows: "Where admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings 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." • 9.4 In addition to the foregoing provisions, Order 53 rule 6 of the High Court Rules provides as follows; "2). The defence shall specifically traverse every allegation o f fact made in the statement of claim or coun terclaim as the case may be. 3.)A general or bare denial of allegations of fact or a general statement of non admission of the allegations of facts shall not be a traverse thereof. 4 .) A defence that fails to meet the requirements of this ru le shall be deemed to have admitted the allegation not specifically t r aversed. 5.)Where a defence fails under s ub rule (4) the plaintiff or defendant or court on its own motion, may in an appropriate case , enter Judgment on admission. R13 • • 9 .5 In Finance Bank Zambia PLC vs. Lamasat International Limited(2 l cited by both p arties in the sk eleton a rguments, th e Court stated as follows: "The Court has discretionary power to enter judgment on admission under Order 27 of the High Court Rules. This power is exercised in only plan 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". 9.6 In China Henan International Economic Technical Corporation vs. Mwange Contractors Limited'111 th e Su prem e Cou rt stated as follows: 'In the new dispensation in Commercial matters require parti es to plead their cases with precision and in detail early in the litigation in order to assist the courts in narrowing and defining the issues in contention ... Where a defence in a Commercial matter does not satisfy the requirements of Rule 2, the Court is entitled to enter Judgement on admission in an appropriate case". 9. 7 Th e plaintiff in a dvancin g this application has relied on th e affidavit in su pport filed together with the s u mmons. The defen dant h as ch a llenged th e said affidavit asserting that Rl4 • • since it was deposed to by counsel it should be expunged from the record. 9.8 It is common cause that the above issue of whether or not the affidavit deposed to by counsel is invalid and as such should be expunged from the record has been raised in the affidavit in opposition dated the 30th January 2024. 9.9 As was submitted by Mr. Mwanza in his submissions in reply, a preliminary issue challenging an affidavit cannot be raised in an affidavit. This because Order 5 rule 15 of the High Court Rules prohibit the inclusion of extraneous matters in an affidavit. This order states as follows: "An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion." 9 .10 Counsel for the defendant ought to have been aware of the provisions of order 5 of the High Court Rules which regulates the form and contents of affidavits . Counsel should have as such avoided to include such extraneous matters in the affidavit and later on proceed to make arguments. 9 .11 On account that the issue challenging counsel's swearing of the affidavit has not been properly brought before court, I find the same to be incompetent and it is accordingly dismissed. RlS • • 9 .12 I now come to the plaintiffs application to enter Judgment on admission. The plaintiffs assertion is that an examination of the defence filed into Court on 16th October, 2023, is replete with admissions. That the defendant admitted owing the Plaintiff EUR7590.00 in paragraphs 5 and 7 of the defence. As regards the sum of USD 18,781.00 the Plaintiff contends that paragraph 6 of the defence shows an admission of this amount. 9 .13 The Plain tiff on their part admits owing the Plain tiff EUR7590 which accrued under the Euro Contract. As regards the sum of USD18 ,781 .00 the Plaintiff's position is the amount is disputed as the principal amount is in contention. 9 .14 I have examined the pleadings filed by the parties. As regards the sum of EUR7,590.00 accrued under the Euro Contract, it is common cause that the admission is clear and unequivocal. The defendant has admitted owing the Plaintiff the said sum of monies in both its defence and in the affidavit in opposition. Counsel has equally confirmed this admission in his oral submission at the hearing. 9 .15 I therefore on account of the said admission, enter judgment on admission in favour of Plaintiff in the sum of EUR7,590.00. 9.16 As regards the claim of USD18,781.00 under the Barrick Contract, the defendant averment in paragraphs 6 and 8 of the defence are couched as follows: R16 • "6. Further to the above paragraph the second contract (Barrick Contract) the Defendant has never refused honoring the sum owed however the parties have not agreed the sums owed as the Plaintiff is considering the amounts with the amount of withholding tax which tax has already been paid and interest that was never agreed to. 8. Further to the same, the Defendant denies the claim of Eighteen Thousand Seven Hundred Eighty-one Dollars (USDlS,781.00) as the sum includes withholding tax amounts which is cleared at the behest of Barrick Lumwana Mining Company or Plaintiff, further the Plaintiff [sic] shall aver that the Plaintiff has increased the amount owed by including self calculated interest on the amounts claimed. 9 . 1 7 The opposing affidavit on th e oth er h an d states that the defendant has not made any a dmission to owing the Plaintiff th e sum of USD1 8 ,781 .00 because th e principal amou nt of money owed is in contention viz-a -vis whether inclusion of interest a nd tax obligation as th e defendant h as challenged h ow the plaintiff has arrived at demanding for USD 18,78 1.00 9 .18 A careful examination of th e foregoing clearly shows that the defend ant has clearly admitted owing the Plaintiff under th e Barrick Contract. The admis sion is clear a nd unequivocal. The only contention relates to the actual quantum of the amount owed. I thus agree with the R17 Plaintiffs submission that liability has been admitted with regard to the Barrick Contract, save for the interest. 9 .19 Further, the defence contains bare denials of the averments in the statement of claim. Whilst stating that the sum of USD18,781.00 is denied for including Tax and interest, the defendant has failed to state what the correct principal sum is. This is a clear indication of an admission as submitted by the plaintiff . • 10. Conclusion. 10.1 I find merit in the plaintiffs application for Judgment on admission. I therefore enter judgment on admission in favour of the plaintiff in the sum of EURO7,590.00 whilst the amount owed under the Barrick Contract is subject of assessment. 10.2 The amount of EURO7,590.00 will attract interest at 3% • per annum from date of writ to full settlement. 10.3 The principal amount owed under the Barrick contract will be assessed by the Registrar. The issue of contractual interest which is denied will be resolved at trial. 10.4 The defendant shall avail certificates of withholding tax prior to the assessments failing which the principal sums to be assessed and paid shall be inclusive of withholding tax. R18 10.5 The Judgment su m at assessment will attract in terest at 3% per annum from date of writ until final settlement. 10.6 Costs incidental to th is a pplication are awarded to the Plaintiff to be taxed in d efau lt of agreement. 10.7 Leave to appeal is h ereby granted. Delivered in Chambers at Lu saka th is 19 th day of February, 2024 . .... ..•......... ~ .: ...... . Chilombo Bridget Maka HIGH COURT JUDGE • • R19