Yolam v Yolam and Anor (Appeal 52 of 2004) [2005] ZMSC 39 (10 November 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO.52/2004 HOLDEN AT LUSAKA. {Civil Jurisidiction) BETWEEN: VUTINE YOLAMU LINA YOLAMU NJELEKA YOLAMU (Of her own behalf and of her next of kin Charles Yolamu a minor) i AND 1st APPELLANT 2nd APPELLANT 3rd RESPONDENT^ A. T. TYETYE ENTERPRISES LTD RESPONDENT Coram: Lewanika, Ag. CJ, Chitengi and Mushabati, JJS. On 15th day of September, 2005 and 10th November, 2005. For the Appellants: A. J. Shonga of Shamwana & Co. For the Respondent: E. B. Mwansa of EBM Chambers JUDGMENT Mushabati, JS., delivered the Judgment of the Court. The respondent sued the appellants for recovery of K95,000,000 in respect of rehabilitation works done on Farm No.488a Plot No.l Leopards Hill Road, Lusaka on behalf of the appellants. The respondent further claimed for K49,600,000 costs incurred by him on materials and other expenses pursuant to the conditions of their contract. J 2 The appellants entered a memorandum of appearance accompanied by a defence. The respondent joined issue with the appellants over the said defence but on 9 April, 2003 filed an application for judgment on admission. The application was heard and Judgment was entered in favour of the respondent hence this appeal. At the time we heard this appeal we allowed it and promised that we would give our reasons later and we are doing so now. The appellants filed one ground of appeal namely that:- The learned Judge in the court below arrested both in law and in fact when he in ignored the contents of the appellants’ defence in its entirety and held that the applicants’ 2ndpart of paragraph 5 of their defence was an admission of liability to the respondents. Mr. Shonga made a brief oral submission in addition to his written heads of argument. The counsel for the respondent Mr. Mwansa entirely relied on his written heads of argument. We have carefully considered submissions by both counsel. We have further looked at paragraph 5 of the defence upon which the judgment on admission was based. The said paragraph reads:- Paragraph 7 is also denied. And the defendants with aver at the trial that the plaintiff has suffered no loss, if any at all The defendants will further prove that MARTHA MUSHIPE, as lawyer for the estate informed the defendants and Legal Practitioner’s Committee at LAZ that she had already paid the plaintiff In our view we are not satisfied that the above quoted paragraph contained an admission on which a judgment could be entered. In fact when the respondent received the applicants’ defence he joined issue. He did not J3 apply for judgment on admission. He only did so much later after he had filed his reply and defence to the counter-claim. All in all we are satisfied that the appellants did not admit liability. The appeal is therefore allowed. We order a retrial before another judge. Costs shall be in the cause. D. M. Lewanika DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE i C. S. Mushabati SUPREME COURT JUDGE