Zambia Seed Company Limited v Dwambe Farms (2008) Limited (APPEAL NO. 43/2017) [2017] ZMCA 503 (26 October 2017)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 43/2017 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ZAMBIA SEED COMPANY LIMITED APPELLANT AND DWAMBE FARMS (2008) LIMITED RESPONDENT ~ -- ~ -- ~ -- . Coram: ¥•=- .. CbJsanga JP, Ct,c1stiJ and Muloag9ti JJA On pt Aug·u;t, 2017 and 26th- October, 2017 - . ..... "P ~~..: ....... "1.~· ••. :,( . --XV'-.);;, .,c . • For the Appellant: Mr. 0 . Sitimela of M essrs Fraser Associates For the Respondent: Mr. A. Tembo of M essrsTembo, Ngulube and Associates JUDGMENT MULONGOTI, JA delivered the j udgment of th e Court. Cases referred to: 1. Ellis v Allen {1914} 1 Ch. 904 at 909 2. Agri-options v Jeffrey's Bakery Limited {2015/HPC/0031} unreported 3. Ca/edonian Railway v. North British Railway {1881} 6 App. Cas. J1 s This is an appeal against th e Ruling of the High Court, commercial list of 13th February, 2017, refu sing the plaintiff's application for an order that judgment on admission be entered against the defend ant. The relevant facts leading to th e application, are that the plaintiff (now appellant} supplied the defendant (now respond ent} with assorted agricultural seed product at a total cost of K137,664.00. The respondent failed to pay in accordance with the 30 day credit facility agreed by th e parties. This prompted the appellant to sue for the sum with interest at current commercial bank lending rate plu s 20%. The defendant admitted that the seed was supplied by the plaintiff. However, it averred that the product sup pli ed was of unmerchantable quality as it failed to germinate and where J.germinated it ~ -d stunted gro"':Jh. ~-- The plaintiff then applied before th e High Court for an order that Judgment on Admission be entered against the defendant pursuant to Order XXI Rule 5 of the High Court Rules. The plaintiff contended that th e defendant admitted owing the sum cl aimed and promised to pay on or by 16th November, 2016. The plaintiff produ ced a letter exhibit "GZl" of its affidavit in su pport of the application as proof of the defendant's admission. The def endant did not fil e an affidavit in opposition and did not attend the hearing of th e application. J2 The Court below, upon analyzing th e letter exhibit "GZl", observed th at at the bottom right hand corner of th e letter were handwritten notes signed by an unnamed signatory, which notes, it could not decipher. These handwritten notes we re what the pl aintiff contended was an ad miss ion to pay by 16th November, 2016. Furth ermore, acco rdin g to th e deponent of the affid avit in support, t he hand written end orsem ent was that of Mr. Patel, one of t he Directo rs of the defendant com pany. The Cou rt opined that " ... bearing in mind the illegibility of the handwritten endorsement1 I find this to be an opportune juncture to pause for the purpose of introducing handwritten emphasizing importance of lucidity when the evidence ... 11 The Court th en had recourse to Ord er V Rul e 19 of the High _;,>._ . Court Rules and found that it required handwritten notes or st ate ments .,,>._ • _to be tt-P~~~t~e-~ ~nd aj~l~•_S~~d. i~ the ·pfJ~fr.w~ed manr:ie.t .,j~~Qrding to- .:~~ -~~ the Court th e rationale is that the handwritten st atement s mu st be - - - - - .,,>._ • .,,>._ . .,,>._ . ~ ~ presented in a manner which must be read and deciph ered by the Court. Since there was no typewritte n transc ript before her rega rdin g th e ad miss ion, she was not satisfi ed tha t th e scri bbl es endorsed on the letter of d emand con tain an admission. And that to exacerbate the situation, the signatory of the purported stat ement was not identified. Consequen tly, th e Judge refu sed to grant the app licati on. The appe llant appealed aga in st th e Ruling. It raised three gro u nds of appeal as follows: "1. The Court below erred in law and fact by holding that the endorsement or inscription on the exhibit before it , in support of the appellant's application for entry of Judgment on Admission did not amount to a J3 statement of admission as it did not assist the court in determining the identity or authenticity or genuineness of the defendant's signature. 2. The erudite Judge in the Court below erred in both law and fact by holding that the signature and endorsement or inscriptions on the exhibit before her did not comply with the provisions of Order V Rule 19 of the High Court Rules, Chapter 27 of the laws of Zambia. 3. The findings of the Court below were against the weight of the evidence on record." Both parties filed heads of argument. The appellant contend in ground one that its applicatio n in the Court ~low was _premi~d on Order XXI_Jule 5 which do~_not state the f~!m .:_=,~t~ sLg:h _acfmts~io~,.n_e~d be ·neitb:e!:~oe_s it srate,th~. Jh~_maker.~.{;s~_h: · admission should state his name when making it. The exhibit 'GZl' which is at page 31 of th e record of appeal, was addressed to the respondent's Man ager and not any other officer. Thus, it is argued, the Court ought to have ta ken that fact into account. Therefore, the issue of identity or authenticity ought not to have arisen as the respondent is a limited company whose day to day affairs are run by the Manager and or Board of Directors. According to the appellant it would be placing an unnecessary burden on th e appellant to assu me that it would have to adduce evidence into court to prove th e authenticity of the respondent's Manager or Directors' signatures as th e respondent may have more th an one such officer. J4 For its part, the respondent argued in relation to ground one that the Court below was on firm ground when it relied on Order V Rule 19 and in its holding that Judgment on admission could not be entered because the inscription on the exhibit did not amount to a statement in admission as it did not assist the Court in determining the identity or genuineness of the defendant's signature. The English case of Ellis v Allen 1 was relied upon where it was held that "the admission may be express or implied but it must be clear ... " According to the respondent in casu, the statement was not clear and cannot even be read. The Court was supposed to be satisfied as to its genuineness, which was not the case here. The respondent amplified that an assumption cannot be made that the ~spondent wa.s ajmitting to whawas written just)ecause a_ state~_ent :;_-:,,,){.~ -~ . W_Iitten 00,}a~tter_ that w~ ~n:ia_ndlng ffiQn~<to_b~ pa i@=a.,to-J~E{ _ appellant. With regard to ground two the appellant submitted that the Court erred in relying on Order V Rule 19 because that Order is only resorted to where a litigant is relying on any handwritten document. In such instance there ought to be a printed or typewritten copy of such document produced before Court. Be that as it may, the appellant actually complied with this requirement as the said inscription was fully printed and explained in paragraph 6 of the affidavit in support. The respondent submitted that ground two lacks merit because Order V Rule 19 requires that " ... there shall also be exhibited therewith a typewritten or printed copy thereof certified in such affidavit to be a true and correct copy of JS the original. n This was therefore, a mandatory requirement derived from the use of the word shall. Paragraph 6 of the appellant's affidavit in support does not qualify as the Rule does not require a person to explain what has been handwritten but instead for there to be a typewritten or typed out and printed verbatim copy of the handwritten document. This entails no words should be added or subtracted to the typewritten document. As to ground three the appellant's submission was that the findings of the Court below relating to the authenticity of the signature on the exhibit were not in contention and were not at any point raised by the respondent as the respondent, in any case, neither filed its affidavit in ~position nor a:t,t.ended the hea~g of the appliC)i_tion. Therefor~~_the -· .;~~ }gdg~...ought tii.t.iase \v..eighed -~ttte:e·vide_nce -fu-=sto_ced1e.r and- rnooej>et _ determination, The respondent contended that ground three also lacks merit as the Court below did not go against the weight of the evidence on record as it was not satisfied with the genuineness and authenticity of the signature. Furthermore, that the respondent in its Defence denied all the allegations raised by the appellant in its Statement of Claim, failing which it risked judgment on admission being entered against it. The unreported High Court decision in the case of Agri-options v Jeffrey's Bakery Limited 2 was cited as authority. J6 Th e respo nd ent also expl ain ed t hat it fil ed its affid avit in oppos itio n lat e on t he sa m e day of th e Rul ing. Th e affidavit clea rly showed t hat it did not admit t o the m oney as being owed t o t he appellant . However, it agreed that it wo uld pay th e amo unt owed on ce th e repl ace ment seed w as del ive red. W e have co nsid ered th e arguments by both co un se l. Cri sply, t he question th e appea l raises for thi s Cou rt 's consid eration is w hen a Judgm ent on ad mission can be entered based on a han dw ritte n not e or document. Better still, w hether Judgment on admi ssio n ca n be ent ered on handw ri t t en notes or sc ribbl es wh ere th e re spondent (defend ant) has den ied th e appellant's (pl aintiff's) all egatio ns in its Defe nce. We wi ll consider all th e t hree ground s of appea l sim ultan eously . Th e appellant f il ed th e applica ti on to enter Judgm ent on ad miss ion pu rsuant to Ord er XX I Rul e 5 of the High Court Rules, w hich is co uched thu s: "If any defendant shall sign a statement admitting the amount claimed in the summons or any part of such amount✓ the Court or a Judge on being satisfied as to the genuineness of the signature of the person before whom such statement was signedJ and unless it or he sees good reason to the contrary✓ shallJ in case the whole amount is admitted✓ or in case the plaintiff consents to a judgment for the part admitted✓ enter judgment for the plaintiff for the whole amount or the part admitted✓ as the case may beJ andJ in case the plaintiff shall not consent to judgment for the part admitted✓ shall receive such statement in evidence as an admission without furth er proof n J7 The Court below, after examining the handwritten notes on the exhib it 'GZl' of the affidavit in support of the application, found that the notes or scribbles were not clear. She was also not satisfied as to authenticity and genuineness of the signature. Having had sight of the handwritten notes on exhibit 'GZl', we couldn't agree more with the Court below that the handwritten notes are illegible. We cannot therefore, fault the Court below for dismissing the application on the grounds that she was not satisfied as to genuineness and authenticity of the signature. Order XXI Rule 5 is clear that the Court ought to be satisfied as to genuineness of the signature of the person before who such statement ~ - of admission was signed. We should, actually stress, that Order XXI Rule -> · 5- i~~✓.t? . Utrral mean,~ ~~~it_e absu t,SJ~:)! ~~~rally me,~VJ ~jl~ the CoyiJ~ ~ :"a~ .;- must be;ati;ffed with the genuineness of the signature ~f th~ person > · > · > · . · before whom the defendant signed the statement of admission. In our considered view this is absurd as clearly the Court is supposed to be satisfied with the genuineness of the defendant's signature before judgment on admission is entered, as interpreted by the Court below. The judge was therefore on firm ground. We are fortified by Lord Blackburn in Caledonian Railway v. North British Railway3 in which he referred to the golden rule of construction that: J8 "There is not much doubt about the general rule of construction Lord Wensleydale enunciated that which he called the golden rule of construing all written engagements. I find that he stated it very clearly in Grey v Pearson [1857] 6 HL 61 in the following terms: "I have been long and deeply impressed with the wisdom of the rule, now I believe, universally adopted-at least in the Courts of Law in Westminster Hall-that in construing wills, and indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid t.f\e absurdity and-'ihconsistency, httt no further.""->-· ¥ • • • 3;'--=: ,).; ---!""b--<. - In casu Order XXI of the High Court Rules dea ls with admissions generally while Rule 5 specifically deals with admissions by defendants. So it is absurd for the Court to be satisfied with the genuineness of the sign ature before whom th e stat em ent of adm iss ion was m ade and not that of the def endant. To that exte nt Rule 5 is therefore inconsist ent with the rest of Ord er XXI. Accordingly, we co nstru e it to mean that the Court should be satisf ied with the genuin eness of the d efen dant' s signature, w hich we opine was th e intention of the drafters. J9 Additionally, we note that the respondent, in its Defence filed in the High Court on 3rd January, 2017, admitted that the plaintiff (appellant) supplied it with seed but averred that the seed supplied was of unmerchantable quality. The respondent further averred that the appellant was not entitled to the claims or reliefs sought as there was failure of consideration. To us, it is clear that the respondent did not admit to the plaintiff's claims of payment of K137,664.00. Whether the plaintiff is entitled to payment and whether the seed is of unmerchantable quality are triable issues to be resolved after the tria l. We find also that the Court below was on firm ground for relying on Order V Rule 19 as to the manner in which a handwritten notes can be relied_.>_on or produced in court. WE;.t_·agree with t~- respondent's_...._. -argM~ts _th.at - p1i"ffig_µJp·h_ 6 _of tfte> siffidavit in ·sBf:)pJ)'rt°.which ~ -;-.>( : appellant contended explained the handwritten notes does not qualify. As canvassed by the respondent, the handwritten notes should be typewritten or photocopied and certified true copy, in line with Order V Rule 19. It is clear there was no such typewritten or certified photocopy of the handwritten notes before the Court below. The Judge considered the application based on the evidence before her and cannot be faulted. JlO In light of all the foregoing, we find no merit in the appeal. It is dism issed with costs to the respondent. F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL ~ -- .; :,_~ -~_: __ f_-~ -J~--.z __ :-:~u--~-o--~•:P-T-, -~--~ ,;:,~ ~ . COURT OF APPEAL JUDGE Jll In light of all the foregoing, we find no merit in the appeal. It is dismissed with costs to the respondent. F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL , . . ~~ .. · ..,,_, .:.,::=;ii,oLoori-..,::~. - COURT OF APPEAL JUDGE Jll