Khembule Commodities Limited and Anor Nalikwanda Agro Processing Limited (Appeal No. 273/2024) [2025] ZMCA 152 (18 November 2025)

IN THE COURT OF APPEAL OF HOLDEN AT NDOLA (Civil Jurisdiction) ,:.;:;;:_: '-- ppeal No.273/2024 BETWEEN KHEMBULE COMMODITIES i. J. K'W~~mm;~ VICER KHEMBULE AND 1 ST APPELLANT 2 ND APPELLANT NALIKWANDA AGRO PROCESSING LIMITED RESPONDENT CORAM: Siavwapa JP, Chishimba and Patel, JJA On 11 th and 18th November, 2025 For the Appellant: No Appearance For the Respondent: Mr. M. S. Chungu of Messrs Mwamba & Milan Advocates JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Cour t. CASES REFERRED TO: 1. Zega Limited v Zambezi Airlines Limited and Diamond General Insurance Limited (SCZ Appeal No. 39/2014) 2. Himani Alloys Limited v Tata Steel Limited (2011) 3, Civil Cases, 721 3. Kapoko v The People (2016/CC/0023) 4. Stanley Mwambazi v Morester Farms Limited (1977) Z. R. 108 5. R v The University of Cambridge (1723) 1 Str 557, 567 6 . Zambia Revenue Authority v Shah (SCZ Judgment No. 10/2001) 7. Water Wells Limited v Wilson Samuel Jackson (1984) Z. R. 98 J2 8. Shocked & Another v Goldschmidt (1998) ALL E . R. 383 9 . Chifuti Maxwell v Chafinga Rodney Mwansa & Another (SCZ Appeal No. 96 of 2024) 10. Antonio Ventriglia & Another v Finsbury Investment Limited (SCZ Appeal No. 2 of 2019) 11. Access Bank Zambia Limited v Group Five/ Zcon Business Park Joint Venture (Suing as a firm) (SCZ/8/52/2014) 12. Bwalya Lumbwe v Ronald Simwinga (CAZ Appeal No . 96 of 2024) 13. Natural Valley Limited v Brick and Tile Manufacturing Limited and The Attorney General (SCZ Judgment No . 32 of 2021) 14. Chansa v Attorney General (2019/CCZ/OO4) 15. Mercy Chileshe Lengwe v PICLA Women Empowerment Foundation Limited (Appeal No. 86/202) 16. Chazya Silwamba v Lamba Simpito (2010) Z. R. Vol. 1 475 LEGISLATION REFERRED TO: 1. The Supreme Court Practice (White Book) 1999 Edition (RSC) 2 . The Constitution of Zambia (Amendment) Act No. 2 of 2016 3. The High Court Rules, Chapter 27 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This is an appeal against the ruling d elivered by Judge Maka Chilombo dated 8 th May 2024, refusing to set aside the Judgment on Admission dated 16th January 2024 . 1.2 The appeal addresses the law on setting aside a Judgm ent on Admission obtained in default of pleadings. Whether a Judgment on Admission can be entered in default of pleadings i.e. , defence. 2 .0 BACKGROUND J3 2.1 The Respondent, (Plaintiff) in the Court below, issued an Amended Writ of Summons and Statement of Claim dated 31 st October 2023 , claiming the sum of K890 , 800 being a refund of money paid to the Appellants (Defendants). The Respondent a lso claimed for damages for breach of contract, special damages as pleaded, interest and costs. The said Amended Writ and Statement of Claim was served on the Appellant. No defence was filed by the Appellant. 2.2 On the 22 nd November 2023, the Respondent applied for entry of Judgment on Admission. The Court was satisfied that there was proof of service of the process, as well as the attendant application. The Court entered Judgment on Admission pursuant to Order 21 Rule 6 of the High Court Rules (HCR) in favour of the Respondent for the sum of K890 , 800. Damages for breach of contract and special damages to be assessed by the Registrar. Leave to appeal was granted. 2.3 Thereafter, a Garnishee Order to a ttach/ answer a judgmen t was issued . Before the Garnishee proceedings could be heard inter partes , the Appellants a pplie d to set aside the Judgmen t on Admission and to stay execution of the said judgment. 3.0 DECISION OF THE COURT BELOW J4 3 . 1 The learned Judge considered the reasons for the delay, i.e., the need by the Appellants to reconcile numerous transactions and to engage Counsel. The Court found the reasons unacceptable and stated that time continued to run . Further, that the non attendance at the hearing of the application for en try of Judgment on Admission was n ot a result of accident or mistake. 3.2 The Court below held that the Appellants had not demonstrated sufficient cause to justify setting aside the Judgment on Admission. That instead of appealing the decision, the Appellants chose to apply to set it aside. The Learned J u dge dismissed the application to set aside the J udgment on Admission with costs. 4.0 APPEAL 4.1 Being dissatisfied with the decision of the High Court, the Appellant appealed, raising the following grounds: 1. That the Court below erred in law and fact when it held that the Appellants had not demonstrated sufficient cause to justify setting aside the judgment on admission; 2. That the Court below erred in law and fact when it declined to set aside the judgment on admission despite the Appellant demonstrating that it had a defence on the merits; and JS 3 . That the Court below erred in law and in fact when it held that the consideration for setting aside a judgment obtained after trial were equally the same in setting aside the application for judgment on admission before that Court. 5.0 HEADS OF ARGUMENT BY THE APPELLANTS 5.1 The Appellants filed heads of argument dated 27 th September 2024. It was submitted that the Court below erred in law and fact when it held that the Appellants had not demonstrated sufficient cause to justify setting aside the Judgment on Admission. Reference was made to Order 27 Rule 3 of the Rules of the Supreme Court (White book) 1999 Edition (RSC) , the cases of Zega Limited v Zambezi Airlines Limited and Diamond General Insurance Limited 111 and Himani Alloys Limited v Tata Steel Limited 121 on the ingredients for entry of Judgment on Admission. 5.2 The argument by the Appellants is that the Court below ought not to have declined to set aside the Judgment on Admission in view of the exhibited intended defence. That though the Respondents claimed the sum of K890 , 800 .00 , the Appellants only admit owing K277 , 448.40. The discr epancies in the actual amount owed bring to light triable issues warranting setting the aside the Judgmen t on Admission. 5.3 Article 118(2) (e) of the Constitution of Zambia (Amendment) J6 Act number 2 of 2016 and the case of Kapoko v The People !3 l on the administration of justice without undue regard to procedural technicalities was cited as well as the case Stanley Mwambanzi v Mo rester Farms Limited !4 l. In addition, R v The University of Cambridge !5 l on the requirement of a party b eing given an opportunity to make his defence was cited. 5.4 The Appellants concede the fact thatjudgment on admission was entered as a result of default in pleadings. However , sufficient reasons have been shown in the exhibited defence to warrant the setting aside of the Judgment on Admission. The Judgment therein was not as a result of an express or implied admission, and is akin to a judgment in default. In a nutshell, that Judgment on Admission was improperly granted based on default pleadings, undermining the principle that Judgment on Admission should only be entered where admissions are clear and unequivocal. 5.5 In ground two, the Appellants submit that the Court below erred in law and fact by refusing to set aside the Judgment on Admission despite the defence exhibited in the affidavit in support of the summons for an order to set aside the said J7 judgment. That the reason for the delay in filing a defence was exp lained, i.e. , the time needed to review all t r ansactional documents between the parties in order to reconcile the amounts due and to engage counsel. Therefore, the Court below should have considered the defence. The cas es of Stanley Mwambazi (Supra) and Zambia Revenue Authority v Shah (6 l were cited on the desirability fo r matters to b e d etermined on m erit. 5 .6 The p osition of the Appellants is that m atters must b e d etermined on merit r ath er than focusing on the reasons for th e d elay in entering appearance and defence. As auth ority the case of Water Wells Limited v Wilson Samuel Jackson (7l was cited. 5. 7 Ground three assails the holding of the Court that the considerations for setting aside a Judgment ob tained after trial were equally the sam e as those a p p licable in setting aside a Judgm ent on Admission. According to th e Appellants , the considerations are distinct. A judgment aft er trial is based on evidence presen ted and to set aside such a decision, stringent criteria are con sidered such as reason for th e delay as well as whether a miscarriage of justice would r esult if allowed to stand. Wher eas, setting aside a judgment on admiss ion is focu sed on wh eth er t h e admissions made are clear, unconditional and J8 whether there are legitimate triable issues. The standard in the latter is less stringent. The case of Shocked & Another v Goldschmidt (Sl on the different consid erations applicable to setting aside a default judgment and a judgment after trial was referred to as authority. 5 .8 The Appellants contend that the Court below applied a stricter, standard, d enyin g them an opportunity to have their defence heard on merits. We were urged to set aside the Judgment on Admission , allow the Appellants to file their defence and for the matter to proceed to trial. 6.0 RESPONDENT'S HEADS OF ARGUMENT 6 .1 The Respondent began by addressing ground 3 , which it submits raises a jurisdictional issue, which can be raised at any stage of the proceedings. The position of the Respondent is that the lower Court had no Jurisdiction to hear the application to set aside the Judgment on Admission and ought not to have heard it. The said application was made pursuant to Order 35 Rule 5 of the High Court Rules which applies to judgments delivered after trial, as h eld in the case of Chifuti Maxwell v Chafinga Rodney Mwansa & Another (9l . 6.2 According to t h e Respondent , Order 35 Rule 5 was inapplicable J9 a nd the Appellants' recourse was to a ppeal the entry of Judgment on Admission. Therefore, the lower Court was divested of jurisdiction to hear the a pplication . We were urged to dismiss the a ppeal for want of jurisdiction because the lower Court was equally divested of jurisdiction. The case of Ventrigilla & Another v Finsbury Investment!10l was cited as a uthority that "out of nothing comes nothing" "nitil dat qui non habet}} (he gives nothing who h as nothing) . 6.3 The Respondent, in the alternative, submits that the lower Court was on firm ground for stating that the reasoning in Chifuti Maxwell case encompasses the hearing of applications such as the entry of Judgm en t on Admission in the a bsence of a party. Order 35 Rule 5 of the High Court Rules allows a Court to proceed in th e absen ce of a party. Judgment on Admission was delivered after a hearing. There was no attendance by the App ellants despite service. Therefore, the reason for the delay/ absen ce is the primary consideration in setting aside and not whether there is a defence on merit. 6.4 In response to ground one, the arguments are twofold, firstly , that th e issue r elatin g to the entry of Judgment on Admission JlO was not raised in the High Court. We should not therefore, consider the said submissions. In the second instance , that the issue is whether the High Court was on firm ground when it declined to set aside the Judgment on Admission entered in the absence of the appellants. 6.5 It was argued that the considerations for setting aside judgment entered in the absence of a party and judgment in default are distinct, governed by different rules , i.e. Order 12 Rule 2 and Order 35 Rule 5 of High Court Rules. In the latter, it is the defence on merit which is the paramount consideration. In the former , the consideration is the reason for the absence of the applicant from the hearing. Sufficient cause must be shown, i.e. justifiable reasons for not attending the hearing of the application for Judgment on Admission. The reasons advanced of reconciling their accounts and engaging counsel are not sufficient cause . Therefore, the lower Court cannot be faulted for holding as such. 6.6 In respect of Article 118 (2) (e) the Constitution cited by the Appellants, the position of the Respondent is that it is not intended to protect litigants who disregard the rules of Court or shield them from the realities of non-compliance with the Rules Jll of Court. The Courts should not aid litigants in circumventing the Rules of Court. The delay by the Appellants for three months in reacting to the action exhibits a complete disregard of the Rules. The case of Access Bank Zambia Limited v Group Five/ Zcon Business Park Joint Venture (Suing as a firm) ( l ll was cited as authority. 6. 7 The Respondent, in response to ground two, reiterates that the primary consideration for setting aside a Judgment on Admission made in the absence of a party is the reason for the absence. The issue of defence on merit is irrelevant. As regards the cited cases of Stanley Mwambazi(supra) as well as Water Wells Limited(supra), it was submitted that t h e applications to set aside ajudgment in default under the Order 20 Rule 15 now Order 20 Rule 3 of High Court Rules are not applicable herein. The Respondent prayed that the appeal be dismissed with costs. 7.0 HEADS OF ARGUMENT IN REPLY 7 .1 In response to the jurisdictional issue raised that the application was improperly before the Court below, the Appellants s u bmit that it was properly made before the Court pursuant to Order 35 Rule 5 of the High Court Rules . 7 .2 The Appellants reiterated that the Court below failed to properly J12 apply the correct legal principles in reaching its decision. The contention being that in setting aside a Judgment on admission, the validity and fairness of the admissions made are considered. Whereas in a default judgment, the reason for the failure to respond to a claim within time is considered. That the issue in this appeal is the criteria to be demonstrated by an applicant when seeking to set aside a judgment on admission. The appellants submit that when faced with an application to set aside a judgment granted on the premise of default in pleadin gs, the Court must carefully consider whether the legal principles applied in granting the said judgment were sound and whether those principles should govern the d ecision to set aside. We were implored not to dismiss the appeal but to consider it in light of the broader principles of fairness, justice and the right to a fair hearing. In a nutshell, that the Court below erred in its assessment of the legal principles governing the setting aside of the judgment. Therefore, we should allow the appeal with costs. 8.0 AT THE HEARING 8.1 There was no attendance by the Appellants' advocates. The learned Counsel for the Respondent r eiterated that the appeal, J13 herein , does not relate to the ruling declining to set aside a judgment in default but to a ruling declining to s et aside a Judgment on Admission entered in default of p leadings . Therefore, the criteria of a defence on merit do not apply in this appeal. Reference was made to our own decisions in Bwalya Lumbwe v Ronald Simwinga(1 2 l and the Suprem e Court decision in Chifuti Maxwell v Mwansa and Another (Supra) on the principles applicable to setting aside a judgmen t obtained in the absence of a party as opposed to a judgment in default of d efence. In the former, sufficient reasons must be advanced to set aside such a judgment. That we should dismiss the appeal with costs. 9 .0 ANALYSIS AND DECISION OF THE COURT 9 . 1 We have considered the appeal, the authorities cited and arguments advanced. It is not in issue that the Court below entered Judgment on Admission in d efault of pleadings (defence). Thereafter , the Appellants applied to set aside the Judgment on admission. The Court below refused to set aside the Judgment on Admission. Hence the appeal before us . 9.2 We note that the grounds of appeal raise the issues of whether sufficien t cause to warrant setting a side the Judgment on J14 Admission was shown and the applicable principles therein , i.e. whether the considerations for setting aside a judgment obtained after trial or in the absence of a party are the same as those applicable in setting aside a Judgment on Admission. As opposed to the principles applicable to setting aside a judgment in default of defence. 9 .3 However, we are of the view that it is pertinent to consider the manner in which the Judgment on Admission was entered by the Court below, even though the a ppeal is against the ruling refusing to set aside the Judgment on Admission. We are conversant with the fact that the Appellants did not appeal the entry of Judgment on Admission. This issue goes to the jurisdiction of the Court below. 9.4 As noted from the background facts of the appeal, the Appellant did not file a defence in the lower court. The lower Court, upon application by t h e Respondent, entered Judgment on admission in default of pleadings. The Appellant subsequently applied to set aside the judgment on admission, which was dismissed. 9.5 The principal considerations in the s etting aside of a Judgment in default and Judgment on Admission are distinct, with different procedural bases and implications. 9.6 In the case of Chifuti Maxwell (Supra), the Supreme Court JlS dealt with th e issue of the exercise of discretion by a judge to set aside a judgment entered in the absence of a defendant. The Supreme Court considered that factors in determining whether or not to set aside a judgment pursuant to Order 35 Rule 5 of the High Court Rules, which gives discretion to proceed to hold a trial in the absence of a defendant. 9.7 To set aside such a Judgment, sufficient cause must be shown. Th e Cour t stated that the primary consideration to set aside a judgment is the reasons for the absence of the party applying and not the defence on the merits. In our decision in the case of Bwalya Lumbwe(supra), we dealt with the issue of setting aside a judgment obtained in the absence of a party and stated as follows : "It is trite that for any application to s e t aside a judgment entered in the absence of a pa rty, t he key cons ide ration must be anchored on sufficient cause." 9.8 That it is the explanation for the absence of the absent party that is most important. We refer to Order 35 Rule 1( 1) of the Rules of the Supreme Court, providing as above. J16 9. 9 As regards the setting aside of a judgment in default, it is the defence on the merit that is the mor e important point for consideration in setting aside such a judgment. 9 .10 In ground three, the Appellants contend that the Court erred in holding that the consideration s for setting aside a judgment obtained after trial are the same as in setting aside a judgment on admission . In our view, the considerations in respect of setting aside a judgment obtained after trial and a Judgment on Admission are the same. We cannot fault th e Court below for stating as such. The Court below did not misapply the applicable principles. Therefore, regardless of the purported demon strated defence on the merit exh ibited to the application to set aside the J u dgment on admission, the lower court had only considered whether sufficient cause had been shown for the failure to attend court. And not the defence on the merit. 9 .11 The Appellants argue that the considerations should be as those for setting aside a judgment in default. Order 12 of the High Court Rules provides for the entry of Judgment in default, setting out instances when this type of Judgment m ay be entered. It is a judgment without trial due to the defendant's default in entering a defence. J17 9.12 The Supreme Court in the case of Natural Valley Limited v Brick and Tile Manufacturing Limited and The Attorney General (l 3 l gave s ome guid ance on m a tters where Judgment in default may b e enter ed. The Cou rt stated th us: "The distinction we have made is important because it is not in all cases where a party is entitled to entry of default judgment where the opposite party omits or neglects to file a defence as was argued by Ms M . Mwanawasa. Order 12 rule 1 of the High Court Act allows entry of judgment in default where a writ of summons is endorsed with a liquidated demand. Rule 2 of the same Order provides for entry of interlocutory judgment and issuance of a notice of assessment where a writ is endorsed with a claim for pecuniary damages and the defendant fails to enter a defence. Similarly, Rule 4 provides that in a matter where a writ is endorsed with a claim for damages in respect of detention of goods, a plaintiff may enter interlocutory judgment. In a matter where the writ is endorsed with a claim for recovery of land or mesne profits, a plaintiff may enter judgment pursuant to rules 6 and 7 where a defendant defaults to file a defence . The examples we have given in the two preceding paragraphs are the only ones specifically provided for under the rules for entry of default and interlocutory judgments." 9 .1 3 Order 12 Rule 10(2) goes on to provide for setting aside of Judgments made under this Order as follows: "Where judgment is entered pursuant to the provisions of this Order, it shall be lawful for the Court or a Judge to set aside or vary such judgment upon such terms as may be just." J18 9.14 On the other hand , Order 21 rule 6 of the High Court Rules as read with Order 27 rule 3 of the (White Book) gives the Court jurisdiction to enter judgment on admission. Order 21 rule 6 stipulates th at: "A party may apply, on motion or summons, for cancelled 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. " 9.15 Order 27 rule 3 provides as follows: "Where admissions of fact or 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." 9.16 In Chansa v Attorney General 1141 the Con stitutional Court pointed out that: "Note 27 /3/2 states that whilst admissions may be express or implied, they must be clear. Note 27 /3/4 further states that such admissions may be made expressly in a defence to a counterclaim or may be admissions by virtue of the rules such as where a defendant fails to traverse an allegation of fact in a statement of claim or there is a default of a defence or a defence J19 is struck out and accordingly the allegations of fact in the statement of claim are deemed to be admitted. Admissions serve the purpose of enabling a party to obtain judgment within less time and with less expense as a party need not prove the admitted facts. They may even eliminate the need for a trial. Consequently, an admission must be clear and unequivocal. However, the fact that an admission has been made must be demonstrated to the Court's satisfaction." (Underlining for emphasis) 9. 1 7 There is no procedure stipulated specifically for setting aside a Judgment on Admission by the trial Court. It is covered under the general provisions for setting aside a judgment or decision of the Court. 9.18 The jurisprudence on entering Judgment on admission is settled that the Court must be certain on the evidence, either in the p leadings or otherwise that the defendant has admitted a claim. That is to say, a judgment on admission can only be entered wher e a Court is satisfied that the admission ther ein is clear, unambiguous and unequivocal. We echoed this in our decision in Mercy Chileshe Lengwe v PICLA Women Empowerment Foundation Limited ' 151 where we pointed out that: J20 "It is trite law that a court has power to enter judgment on admission where the evidence reveals that the admission is clear and unequivocal." 9.19 In our view, the absence of a defence by a defendant does not entitle the Plaintiff to apply or obtain a Judgment on Admission. In an application for Judgment on Admission, there must be an actual, clear admission of liability by the defendant made in pleadings or other forms , such as correspondence and affidavits, etc. 9.20 The procedure where no defence is filed within the stipulated timeframe, but the d efendant has been served with process, the Plaintiff is entitled to apply for Judgment in d efault of defence rather than obtaining Judgment on Admission. In the a pplication b efore the lower Court for entry of Judgment on Admission, where ther e is no defen ce, the Plaintiff did n ot prove th at th e Appellant had made a clear and unequivocal admission of the claims through other m eans stated above . 9. 2 1 We are of the view that in instan ces or circumsta n ces wh er e there is a clear a dmission and no d efen ce filed , a Judgm ent on Adm ission can be entered. Otherwise, wher e th ere is a failure to file a defen ce, the Plaintiff can apply for J udgem ent in Default J21 of Defence. We hold the view that a Court cannot treat the failure to file a defence as a "deemed" admission of the p leaded facts. A default Judgement is entered because of a procedural default and not because the Defendant has made an explicit admission. 9 .22 We are conversant with Order 53 Rule 6(4) of the High Court (Amendment) Rules , where , by operation of the Rules of court, a fact is deemed admitted where there is failure to specifically traverse an allegation of fact contained in the defence. This is not the basis upon which the lower Court entered Judgment on Admission. 9.23 It therefore follows that a Judgment on Admission cannot be entered on account of a defendant having failed to file a defence. In the case of Natural Valley Limited v Brick and Tile Manufacturing Limited and The Attorney General (supra) the Supreme Court faced with an appeal regarding a judgment in default and a Judgment on Admission, observed that: "A reading of the summons reveals that the application sought two things , that is, entry of judgment on admission and in default of defence. The former application related to the Second Respondent whilst the latter, related to the Appellant. J22 In regard to the default judgment entered against the Appellant, although the Learned High Court Judge did not expressly pronounce that she was entering default judgment against the Appellant, we are of the firm view that this, in fact, is what she did. This is revealed by the portion of her ruling which states that " ... no defence was filed for the 2 n d Defendant and as such there is no need to proceed to trial ... ". Thus, the basis of the judgment was the want of a defence to signify the Appellant's intention to defend. We therefore, do not agree with Mr. N. M. Mulikita's argument that the judgment entered in respect of the Appellant was a judgment on admission." Underlining for emphasis 9.24 This d ecision, in our view, goes to show that a j udgment entered in d efault of defence is, in fact , a judgmen t in defa ult a s it d oes not m eet the threshold r equired for a Judgm en t on Admis sion. 9 .25 The application by the Responden t for Judgm ent on Admission wa s made pur suant to Order 21 Rule 6 of the High Court Rules and Order 27 Rule 3 of the Rules of Supreme Court. Th e ground as stated in the a ffid avit in support was th a t th e Appellants wer e s erved with the a m ended Writ of Summons a nd Statem ent of Claim , b u t failed to en ter appearance a nd d efence . 9. 26 The lower Court relied on Order 21 Rule 6 and the cas e of Chazya Silwamba v Simpito1161 tha t an a dmission m ay also a rise wh er e th er e is a d efa u lt of d efence. Th e learned Judge in casu s tated a s follows : J23 " the defendants have not entered defence to the plaintiffs claim. The default of defence therefore as submitted by Counsel for the plaintiffs is hereby deemed as an admission of the claims. On account of the foregoing, I find that this is a proper case in which I should exercise my discretion and enter judgment on admission ... the defendant deemed to have admitted the plaintiff claims" 9.27 The Court below proceeded to enter Judgment on Admission. Order 21 Rule 6 of the High Court Rules allows a party to apply for a Judgment on Admission made 1n pleadings or otherwise without waiting for determination of other issues. Order 27 Rule 3 of the (White book) also provides for applications for judgment where admissions of fact on the part of a case are made by a party to a cause or matter either by his pleadings or otherwise . 9.28 The two provisions do not speak to the entry of Judgment on Admission in default of pleadings. They allude to entry where admissions of facts are made by a party in his/her pleadings or otherwise. We are therefor e at a loss to understand why the learned Judge proceeded to enter Judgment on Admission when there were no pleadings, (defence) or otherwise, in which the Appellants made admissions of facts in r espect of the claims. Neither was failure to file a d efence deemed a dmissions based on failure to traverse allegations of fact in defence, as there was J24 no defence to speak of. 9.29 The learned Judge relied heavily on the High Court decision of Chazya Silvamba v Lamba Simpito (supra) where Judge Matibini, as h e then was, stated as follows ; "In practice an admission maybe made expressly in a defence, or in a defence to counterclaim. An Admission may also arise by virtue of the rules. For instance, where a defence fails to traverse an allegation of fact in a statement of claim, or where there is a default of a defence, or a defence is struck out and accordingly the allegation of a fact in a statement of claim" 9.30 The cited case is not binding on us and is distinguishable, the d efendant therein had filed a defence and counterclaim. Admissions were made in the counterclaim upon which Judgment on Admission was entered. 9.31 We are of the view that the lower Court improperly en ter ed J udgment on Admission when there were no admissions of liability made in the pleadings or otherwise. The Court below could not enter Judgment on Admission in d efault of pleadings. 9.32 Having held that there was no basis to enter Judgment on Admission , the Court below ought to have set aside t h e Judgment on Admission. At the most, the learned Judge J25 ought to have entered a Default judgment because of a procedural default. We find merit in the appeal for the reasons stated above. 10.0 CONCLUSION 9.1 We find that the appeal has merit. We hereby set aside the Ruling of the Court below dated 8 th May, 2024, refusing to set aside the Judgment on Admission. We substitute it with an Order setting aside the Judgment on Admission dated 16th January 2024. The matter is remitted back to the High Court before the same learned Judge. The costs shall abide the outcome of the decision in the Court below. M. J. SIAVWAPA JUDGE PRESIDENT F. M. CHISHIMBA COURT OF APPEAL JUDGE ........ --£.s. f.'::'.t ........ . A. N. PATEL S. C COURT OF APPEAL JUDGE