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SELECTED JUDGMENT N0.32 OF 2018

P.1126

IN THE SUPREME COURT OF ZAMBIA APPEAL N0.188/2015

HOLDEN AT LUSAKA

(Civil Jurisdiction)

BETWEEN:

APPELLANT

AND

BRICK AND TILE MANUFACTURING LIMITED 1 ST RESPONDENT

THE ATTORNEY GENERAL 2ND RESPONDENT

Coram Wood, Musonda and Mutuna JJS

On lOth July 2018 and 20th July 2018

For the Appellant Mrs. M. Zaloumis and Ms M. Mwanawasa

of Dove Chambers

For the First Respondent Mr. N.M. Mulikita of Messrs N.M.

Mulikita and Partners

For the Second Respondent Mr. I. Imasiku, Principal State Advocate

of Attorney General's Chambers

JUDGMENT
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The judgment of the Court was delivered by Mu tuna, JS .

Cases referred to:

1) Re Gospel of God Church, Isaac Matongo v Shadreck Masedza and
the Attorney General ( 1977) ZR 292
2) Katongo v Attorney General (1975) ZR 148

Statutes referred to:

1) High Court Act, Cap 27
2) Rules of the Supreme Court, 1965, volume 1 (1999 edition).

Introduction
1) This appeal calls into question the effect of failure

by a party to answer to a statement of claim

served upon it by way of filing a defence to such

statement of claim. It challenges the decision by

the Learned High Court Judge entering judgment

in default of defence .

2) The Appeal also discusses the effect of an

admission by one defendant on a co-defendant.

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3) Last of all, we will endeavor to explain the

remedies which are available to a party aggrieved

by the entry of a default judgment. We will, in this

regard, consider whether or not an aggrieved

party can appeal against such a judgment.

Background

4) The facts of this case are that the First

Respondent purchased properties known as

subdivision 4 of subdivision A of Farm 379a and

subdivisions 5 of subdivision A of Farm 379a

Lusaka ("the properties") in 1973 from Lusaka

Building and Transport Company Limited.

Pursuant to the said purchase , the First

Respondent was issued with certificates of title

numbers 35056 and 35057 by the Second

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Respondent acting through the Registrar of Lands

and Deeds.

5) On 4th March 2004, the Commissioner of Lands

issued notices of intention to re-enter in respect of

the properties. Subsequently, certificates of re-

entry were issued and the properties were

allocated to the Appellant and certificates of title

to the properties were issued to it.

6) Sometime in 2009 , the First Respondent

attempted to pay ground rent at the Lands

Department for the properties but discovered that

they had been allocated to the Appellant by the

Commissioner of Lands following the issuance

of the notices of intention to re-enter and

certificates of re-entry.
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7) Later in 2010, the First Respondent discovered

through a search on the properties that the

Commissioner of Lands had cancelled the re-

en tries. This was by way of preliminary entries

which appeared on the print out which had been

issued by the Lands Department in respect of the

properties. It, therefore, engaged the

Commissioner of Lands to confirm this position

but its efforts did not yield any results.

8) Meanwhile, the Appellant started developing the

two properties which prompted the First

Respondent as Plaintiff in the Court below, to take

out an action against the Second Respondent and

the Appellant claiming the following reliefs:

8.1 a declaration that it is the rightful title holder of the

properties;
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8.2 a declaration that the purported re-entries on the
properties effected by the Commissioner of Lands are
null and void;
8.3 an injunction against the Appellant restraining it from
interfering with the First Respondent's quiet enjoyment
of the properties;
8.4 an order that the First Respondent should be granted
access way to the properties by the Appellant;
8. 5 any other relief that the Court deems fit; and
8.6 Costs.

9) After the First Respondent took out the action it

caused the process to be served upon the Second

Respondent and the Appellant, as First and

Second Defendants respectively. In response , the

Second Respondent caused an application to be

filed for an order to strike it out from the

proceedings as a party for misjoinder.

10) In support of the Second Respondent's application

mentioned in the preceding paragraph, was an

affidavit in which the Second Respondent

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acknowledged the error in the issuance of the

notices and certificates of re-entry. It also

explained the steps it had taken in rectifying the

error.

11) The Learned Deputy Registrar heard the Second

Respondent's application and dismissed it on the

ground that the action could only be determined

properly if the Second Respondent remained as a

party. This prompted the Second Respondent to

file a defence to the action. The Appellant,

however, neglected to file a defence and merely

filed a conditional memorandum of appearance

predicated on an application to strike out the writ

of summons for irregularity.

12) Later, the First Respondent filed an application

before the Learned High Court Judge for entry of

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judgment on admission and 1n default of

pleadings and to strike out pleadings against the

Second Respondent and the Appellant,

respectively. This was pursuant to Order 30 rule

8 and Order 21 rule 6 of the High Court Act as

read with Orders 2 7 rule 3 , 18 rule 19 and 19

rules 5 and 7 of the Rules of the Supreme

Court, 1965, (1999 edition) volume 1 (White

Book). In support of the application the First

Respondent filed an affidavit. The other two

parties opposed the application by way of

affidavits. It is the ruling from this application

that this appeal arises.

Contentions by the parties and arguments by the First

Respondent
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13) The First Respondent contended that the affidavit

filed by the Second Respondent in support of the

application for misjoinder amounted to an

admission of the claim against it. As such, the

Second Respondent and Appellant ceased to have

legitimate defences.

14) In relation to the Appellant, the First Respondent

contended that it had not responded to its claim

by way of filing a defence. Consequently, the

action against it, was undefended.

15) The Second Respondent's response to the

application was that the contents of the affidavit

in support of the application for misjoinder did

not amount to an admission. Further, the First

Respondent had no cause of action against the

Second Respondent because the Commissioner of

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Lands did not re-enter the properties, hence the

cancellation of the certificates of re-entry.

16) The Appellant, contended that it was still the legal

holder of the certificates of title issued in relation

to the properties. As such, it is the owner of the

said properties. Further, the admissions made by

the Second Respondent in the affidavit in support

of the application for misjoinder do not affect its

rights in the properties.

Consideration of the application by the Learned High

Court Judge and decision

17) The Learned High Court Judge considered the

contentions of the parties and arguments by the

First Respondent's counsel and found that in

terms of Order 21 rule 6 of the High Court Rules,

a plaintiff is at liberty to apply for judgment on

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admission where a defendant by the pleadings or

otherwise admits the claim. She then considered

whether the evidence placed before her revealed

an admission of the claim by the Second

Respondent and concluded that the cancellation

of the re-entries and confirmation by the

Commissioner of Lands that the First Respondent

is the registered owner of the properties amounted

to an admission. Further, the judge reasoned that

the First Respondent had not ceased to be the

registered proprietor of the properties, therefore,

the case was a proper case for entry of judgment

on admission.

18) In regard to the Appellant, the Learned High

Court Judge found that it was affected by the

judgment entered against the Second Respondent

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because its affidavit in opposition was not a

sufficient rebuttal to the First Respondent's claim

in the absence of a defence to the writ of

summons and statement of claim. That only

when a defence and other pleadings are filed does

a Court proceed to hold a trial in a matter.

Consequently, since there was no defence filed by

the Appellant she could not hold a trial in the

matter.

19) The Learned High Court Judge concluded by

pronouncing judgment against both the Appellant

and Second Respondent.

Grounds of appeal and arguments by the parties before

this Court

20) The Appellant is aggrieved by the decision of the

Learned High Court Judge and has launched this

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appeal advancing three grounds of appeal as

follows:

20.1 The trial Judge erred in fact and law when she entered
judgment on admission against the Appellant and the
Second Respondent based on the Second Respondent's
admission without hearing the Appellant.

20.2 The trial Judge erred in law when she entered judgment
against the Appellant based on the premise that the
Appellant did not file a defence when reliefs sought
against the Appellant were declaratory in nature.

20.3 The trial Judge erred in fact and in law when it declared
that the Second Respondent is the legal owner of the
properties.

21) The Appellant and Second ·Respondent filed heads

of argument prior to the hearing of the appeal.

The First Respondent did not file heads of

argument but relied upon the Second

Respondent's arguments. Counsel for the

Appellant and First Respondent also made viva

voce arguments at the hearing of the appeal.

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22) In respect to ground 1 of the appeal, the

Appellant's argument was that the admission

made by the Second Respondent was not binding

on it in accordance with Order 27 rule 2 sub-rule

2 of the White Book. Therefore, the Learned High

Court Judge ought to have referred the matter to

trial because it had intimated its intention to

defend by filing a conditional appearance.

Further, she ought to have considered the

evidence adduced by the Appellant in the affidavit

in opposition to summons for misjoinder.

23) Under ground 2 of the appeal, the Appellant

questioned the entry of default judgment in view

of the declaratory relief sought in the claim. The

position taken by the Appellant was that a Court

cannot enter summary judgment or default

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judgment in a matter where the relief sought is for

a declaration. Reliance was placed on the decision

by Sakala J (as he then was) in the case of Re

Gospel of God Church, Isaac Matongo v

Shadreck Masedza and the Attorney General1

where it was held as follows at page 292:

11
The power to grant a declaration should be exercised
with proper sense of responsibility and with full
realization that judicial pronouncements ought not to be
issued unless there are circumstances that call for their
making. The discretion should be exercised with care
and caution and judicially. In particular the Court will
not make a declaratory judgment where an adequate
alternative remedy is available."

24) The Appellant contended that prior to making his

decision, Sakala J, warned himself against the

danger of making declaratory judgments and

proceeded to review the evidence adduced by the

parties. As a result of this, the Appellant took the

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view that since there were contentious issues

presented before the Learned High Court Judge

she should have adopted the procedure by Sakala

J by putting the Appellant on its defence through

a trial.

25) In conclusion, the Appellant referred to the

decision by Care, J in the case of Katongo v

Attorney Generaz2 whose principle is similar to

that stated by Sakala J on the undesirability of

granting declaratory judgments where an

alternative remedy exists.

26) As regards ground 3 of the appeal, the position

taken by the Appellant was that the decision by

the Learned High Court Judge to declare the First

Respondent the legal owner of the property

amounted to granting summary judgment. This,

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according to the Appellant, was a misdirection

because Order 14 rule 4 sub-rule 9 of the White

Book does not permit the entry of summary

judgment in circumstances such as those that

had confronted the Learned High Court Judge.

27) In the viva voce arguments, counsel for the

Appellant, Ms M. Mwanawasa argued that Order

12 rules 1 to 7 of the High Court Act set out the

claims in relation to which default judgments can

be entered. She contended further that where

process 1s endorsed for a declaratory judgment

the Court cannot enter default judgment if a

defendant omits to file a defence but orders that

the matter proceed to trial as if no default had

been made in accordance with Order 12 rule 8 of

the High Court Act.

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28) In response, the Second Appellant's arguments by

and large addressed the merits of the claim by

the First Respondent in the Court below. Our

summary of the heads of argument does not

reproduce these parts of the arguments and

focuses only on the relevant arguments in relation

to the three grounds of appeal. The authorities we

were referred to were also not relevant to the

determination of this appeal. As such, we have

not referred to them

29) Arguing ground 1, the Second Respondent

contended that the Learned High Court Judge was

on firm ground 1n entering judgment on

admission 1n view of the admissions revealed in

the affidavit in support of the application for

misjoinder.
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30) Turning to ground 2 of the appeal, the Second

Respondent argued that the pleadings that had

been deployed before the Court had included a

defence and that the Learned High Court Judge

was on firm ground when she refused to hold a

trial in the matter because the Appellant had

neglected to file a defence.

31) In regard to ground 3, the Second Appellant

argued that the Appellant having failed to file a

defence the Learned High Court Judge was on

firm ground when it declared the First

Respondent the rightful owner of the properties.

32) In the viva voce arguments, counsel for the First

Respondent Mr. N.M. Mulikita argued that the

appeal is misconceived because the judgment

entered by the Learned High Court Judge was a

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judgment on admission and not a defa ult

judgment. According to counsel, this 1s evident

from the summons filed by the First Respondent

in the Court below pursuant to which the Learned

High Court Judge delivered the ruling which is

the subject of this appeal. He argued further that

the Learned High Court Judge was on firm ground

when she entered the judgment because the

Appellant neglected to file the defence.

Consideration of the grounds of appeal and decision of

this Court

33) Grounds 1 and 2 raise the issue whether or not a

Court can enter default judgment where a claim

seeks a declaratory judgment. In determining

these two grounds of the appeal we would like to

begin by revisiting the application which was

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before the Learned High Court Judge. 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.

34) In regard to the defa ult 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, infact, is what

she did. This is revealed by the portion of her

ruling which states that "... no defence was filed

for the 2nd 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

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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.

35) The distinction we have made 1s important

because it 1s 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 en try 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

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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.

36) 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.

37) 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. The question, therefore,

is what then happens in respect of claims not

specifically provided for such as the one which

had confronted the Learned High Court Judge, for

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a declaratory judgment? Order 12 rule 8 provides

as follows:

"In all actions not otherwise specifically provided for by

the other sub-rules, in case the party served with the
writ of summOJ!S does not appear within the time limited
for appearance upon the filing by the plaintiff of a proper
affidavit or certificate of service, the action may proceed
as if such party has appeared."

38) The effect of the rule we have set out in the

preceding paragraph in relation to this appeal is

that the learned High Court Judge should not

h ave granted the order for default judgment

against the Appellant because the remedy sought

in the writ of summons was for a declaratory

judgment. She, instead, should have issu ed an

order for directions to chart the course for a trial

in the matter as if the Appellant had filed a

defence.
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39) It was thus, a misdirection on part of the Learned

High Court Judge to enter judgment in default

and hold that there was no need for a trial in the

matter in relation to the First Respondent's

claim as against the Appellant.

40) In arriving at the decisions we have made in the

preceding paragraphs we have relied entirely on

our interpretation of Order 12 of the High Court

Act. We have not found it necessary to consider

the holding in the cases referred to us by counsel

for the Appellant namely, In Re Gospel of God

Church1 and Katongo v Attorney General2

because the circumstances in this case are

distinguishable from those in the two cases. This

case involves a default judgment, as such,

evidence on the main issue was not heard, while

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in the other two cases evidence on the issue in

dispute was heard.

41) Taking the issue further, even assuming that the

judgment entered was judgment on admission, it

would still have been a misdirection on the part of

the Learned High Court Judge because, as the

Appellant has argued, the admission by the

Second Respondent (if it can be said to be such)

did not extend to the Appellant and it could,

therefore, not be bound by it. The reason for this

is that the wording of Order 27 rule 2 sub-rule 2

of the White Book is that an admission is only

binding on the person who makes it.

42) Having found that the Learned High Court Judge

misdirected herself by entering default judgment

against the Appellant, the question we would like

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to pose is what is the remedy available to the

Appellant? Order 12 rule 10 sub-rule 2 of the

High Court Act provides the remedy of setting

aside and it is worded 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."

(The underlining is the Court's for emphasis only.)

43) In the light of the provisions of Order 12 rule 10

sub-rule 2 it would appear, on its face , that the

Appellant ought to have gone back to the Learned

High Court Judge and sought to set aside the

default judgment alleging that it had a defence on

the merits. The appeal would in such a case

appear to be the wrong remedy to resort to.

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44) We have considered the options in the preceding

paragraph and hold that the nature of this case is

such that the correct remedy is an appeal and not

setting aside before the Learned High Court

Judge. This arises from the fact that our holding

is that the Learned High Court Judge ought not,

1n the first place, to have entered default

judgment because the Order does not provide for

default judgment in the light of the relief sought

in the Court below. Consequently, the default

judgment was not "entered pursuant to the

provisions of ... Order [12}" and cannot, therefore,

be remedied in accordance with Order 12 rule

10 sub-rule 2 of the High Court Act. Arising

from this, there is merit in grounds 1 and 2 of the

appeal.
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45) Coming to ground 3 of the appeal, in view of our

holding in respect of grounds 1 and 2, this ground

of appeal must equally succeed. A declaration can

not be pronounced without a full hearing of the

matter because no interlocutory or default

judgment can be made in respect of such relief.

We hold, therefore, that there is merit in ground 3

and uphold it.

Conclusion

46) All three grounds of appeal having succeeded, we

allow the appeal with costs to abide by the

outcome of the Court below. We accordingly set

aside the default judgment entered against the

Appellant and remit the record back to the High

Court be dealt with by the same judge by invoking

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the provisions of Order 12 rule 8 of the H igh

Court Act. That is to say, she must issue

directions for tria l as if the Appellant had filed a

defence and proceed to hold a trial at the close of

pleadings in the usual way.

• ___:::;::;,::_=---- - - --
" =-M.- MUSONDA- SC
SUPREME COURT JUDGE

N . M NA
SUPR IB COURT JUDGE