BSBK Limited v Dhanesh Atmaram Tewani (APPEAL NO. 310 OF 2024) (31 October 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 310 OF 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BSBK LIMITED APPELLANT AND DHANESH ATMARAM TEWANI RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA ON: 16th September and 31st October 2025 For the Appellant: J. Njovu and K. Khoma (Ms), Messrs Likando Kalaluka. & Co For the Respondent: M. Desai, B Stephen and M. Chungu, Messrs Mwamba & Milan Advocates JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Finance Bank Zambia Plc v Lamasat International Limited - CAZ Appeal No. 27 of 2018 2. The Attorney General v Marcus Kapumbe Achiume (1983) ZR, 1 3. Group Five Zambia Limited v Nuco Industrial Services Limited - CAZ Appeal No. 50 of 2022 -J 24. J. Evans and Son Portsmouth Limited v Andrea Merzario Limited (1967) 1 WLR, 1078 5. Midlands Breweries Limited v Summit Brokers Limited - CAZ Appeal No. 200 of 2024 6. China Copper Mines Limited v Tikumbe Mining Limited - CAZ Appeal No. 048 of 2020 7. Zambezi District Council v Zolick Kazanda Chantika 111 (Suing in his Capacity as Senior Chief Ishindi of the Lunda Chiefdom) - CAZ Appeal No. 149 of 2018 8. Ellis v Allen (1911-13) All ER, 906 9. Himani Alloys Limited v Tata Steel Limited (2011) 3, Civil Cases 721 (India) 10. Zega Limited v Zambezi Airlines and Diamond General Insurance Limited - SCZ Appeal No. 39 of 2014 Rules referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The Supreme Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 This is an interlocutory appeal against Judgment on admission, by Honourable Mrs Justice K.E Mwenda-Zimba, delivered on 16th May 2024. 1.2 The learned Judge entered Judgment on admission in favour of the Respondent, who was the plaintiff in the • -J 3court below, in the sum of US$303,799.00, as at 28th February 2024. 2.0 BACKGROUND 2.1 The Respondent herein commenced an action on 29th February 2024, by way of writ of summons claiming the following reliefs: (i) Payment of the sum of US$287,525.00 being the sum outstanding on repayment of plaintiffs investment in the defendant company; (ii) An Order that the defendant renders an account of the profits made from the plaintiffs investment in the defendant's company; (iii) Interest and costs. 2.2 The Appellant settled its defence on 24th March 2024, denying liability, save for the sum of US$10,000.00. According to the Appellant, the Respondent appeared to be incorporating the third-party claim for US$400,000.00, which was loaned by Focus Electronics Pte Limited (Focus) of Singapore to Scaw Trading DMCC of United Arab Emirates (Scaw), both of which are limited liability companies, capable of suing and being sued in their own names. -J 42.3 On 8th April 2024, the Respondent issued summons for Judgment on admission. According to the affidavit deposed to by the Respondent; sometime in January 2022, he entered into an oral agreement with the Appellant (the contract) to invest the sum of US$525,000.00, in the Respondent. That the investment was to accumulate interest. 2.4 That the said monies were paid in three instalments between 24th January and 9th February 2022. It was asserted that between 4th September 2022 and 28th October 2023, the Appellant paid back the sum of US$415,000.00. 2.5 According to the Respondent, the principal sum and accumulated interest as at 4th January 2024, stood at US$702,525.00. That the outstanding balance after taking into consideration the repayments as at that date, stood at us$287,s2s:oo. 2.6 It was further asserted that the liability was admitted by the Appellant by a statement of account dated 4th January 2024, which was produced and shown marked "DATl" 2.7 Subsequently, after deducting the repayments made, the outstanding balance stood at US$ 303,799.00, as at 28th -J 5February 2024. That this amount was equally admitted by a statement of account dated 28th February 2024. That despite making the admissions, the Appellant has failed and or neglected to pay the outstanding amount. The statement of account was produced and shown marked "DAT2". ("DATl" and "DAT2" shall collectively be referred to as statements of account.") 2.8 According to the Respondent, the statements of account were issued by the Appellant freely and voluntarily and were addressed to the Respondent in his personal capacity. That the issuance of more than one statement showed a sequence that the Appellant was well aware of the investment made and the amount due to the Respondent. 2.9 Further according to the Respondent, the Appellant made unconditional and clear admissions, that it owed the Respondent. 2.10 The application was opposed by the Appellant who filed an affidavit deposed to by its accountant, Nishkant Badule. The deponent, asserted that he prepared the statements of -J 6account, which indicated the monies invested by the Respondent as follows: (i) US$100,000.00 by bank transfer dated 20.01.2022; (ii) US$25,000.00 by cash payment, made directly to the deponent. 2.11 According to the deponent, the statements of account show that the sum of US$400,000.00, was transferred from Focus to Scaw. Exhibited was a copy of the loan agreement between the parties dated 18th January 2022 and marked "NBl" for the sum of US$100,000.00. Also exhibited were two proforma invoices from Scaw to Focus relating to the sum of US$400,000.00. 2.12 It was deposed that, he inadvertently included the third party accounts in the Respondents statements of account. That the Respondent has no standing to claim for monies which were advanced by Focus to Scaw. 2.13 In his affidavit in reply filed on 8th May 2024, the Respondent deposed that the sum of US$400,000.00, was transferred to the Appellant from Focus at his instance and instructions. The deponent exhibited emails relating to the movement of the said amount. The same were -J 7collectively produced and shown marked "DATl". That therefore the argument of inadvertent inclusion was an afterthought. 3.0 DECISION OF THE COURT BELOW 3.1 After considering the application, the pleadings, affidavit evidence and the arguments, the learned Judge made reference to Order 53 of the High Court Rules 1 (HCR), which provides for Judgment on admission. Reference was also made to Orders 21 / 5 and 6 HCR and Order 27 /3 of The Rules Of The Supreme Court2 (RSC) and opined that the court had jurisdiction to enter Judgment on admission, for admissions made in pleadings or documents other than pleadings. 3.2 The case of Finance Bank v Lamasat International Limited1 was cited where we held as follows: "An admission has to be plain and obvious on the face of it, without requiring a magnifying glass to ascertain its meaning. Admission may be in pleadings or otherwise. A court cannot refuse to grant Judgment on admission on the face of a clear admission." -J 83.3 The learned Judge made a finding that the statements of account were on the Appellants' letter head and they included payments from Focus to Scaw. Further that the statements of account were prepared and signed by the Appellant, which went to show that, what was included was a true reflection of the status of the debt between the parties. 3.4 The learned Judge opined that, it was clear that the Appellant's contention was not true. That from the evidence on record, it was clear that the payment from Focus, was at the request of the Respondent as well as payment to Scaw. That it was also clearly shown by the correspondence between the parties, how the US$400,000.00, was paid from Focus to Scaw. According to the learned Judge, the Appellant was being untruthful, when it stated that the US$400,000.00, was inadvertently included in the statements of account. 3.5 The learned Judge went on to add as follows: "I wish to add that the plaintiff is not entitled to this money because he arranged for it to be paid to the -J 9defendant, from a 3rd party, but because this was the arrangement between them as shown in exibit "DAT 1" to the affidavit in reply. Considering the above, I dismiss the defendant's contention in this regard." 3.6 The learned Judge found merit in the application. According to the learned Judge, the statements of account were clear and unequivocal. She accordingly entered Judgment on admision in the sum of US$303,799.00, as at 24th February 2024, with interest and costs. 4.0 THE APPEAL 4.1 Disenchated with the Judgment, the Appellant appealed to this Court, advancing four (4) grounds of appeal couched as follows: (i) The learned High Court Judge erred in law and fact when she found that there was an arrangement between the parties for the Respondent to be paid the monies which are subject of Judgment on admission as shown in exhibit "DATl" of the affidavit in reply, without the benefit of subjecting the same to trial and -J 10yet the said exhibit "DATl" does not on the face of it show such an arrangement nor does it state/mention that the Respondent was to be paid the said monies. (ii) The learned High Court Judge misdirected herself in law and fact when she dealt with the application for Judgment on admission, as if she was dealing with a matter commenced by originating summons or originating notice of motion which require that it be disposed of by Affidavit evidence, as she proceeded to disregard certain submissions, and disbelieve and believe certain evidence without the benefit of cross examination nor seeing the demeanor of the witnesses. (iii) The learned High Court Judge misdirected herself in law and fact when she found that there was unchallenged evidence that between th 4 September 2022 and 28th October 2022, the Appellant paid a total of US$415,000.00 to the Respondent contrary to the evidence on record -J 11which show that the Appellant only paid US$115,000.00 to the Respondent while the US$300,000.00 was paid by Scaw Trading DMCC and Indus (another third party) to Focus Electronic Pte Limited, and not the Respondent. (iv) The learned High Court Judge erred in law and fact when after finding that the agreement exhibited as "NBl" is not the entire agreement between the parties, proceeded to infer the further terms of the agreement between the parties as opposed to referring the matter to trial .to ascertain the entire agreement between the parties 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 In arguing the first ground, it was submitted that the learned Judge misdirected herself when she concluded that there was an arrangement between the parties, when she relied on exhibit "DATl" in the affidavit in reply. That a perusal of "DAT 1 ", only shows that a third party named Focus emailed the Respondent that it would pay money to the suppliers. That it does not show -J 12any arrangement. Further, that "DATl" does not show that the payment from Focus to Scaw, was at the request of the Respondent. That there is no evidence on the record, which speaks to that. 5.2 According to the Appellant, the finding by the learned Judge was perverse and made in the absence of any credible evidence and was based on a misapprehension of facts. That this Court therefore in accordance with the case of The Attorney General v Achiume2 has the powers to reverse that finding of fact. 5.3 In arguing the second ground, it was submitted that the learned Judge erred, when she dealt with the matter based on affidavit evidence, as if the same was commenced by originating summons or originating notice of motion, whereby she proceeded to disregard and regard certain submissions and disbelieved certain evidence without the benefit of cross examination nor seeing the demeanor of witnesses. 5.4 According to the Appellant, when the court started choosing what evidence to believe and not to believe, or to disregard certain of the Appellant's submissions -J 13which negate the admission, then there was no clear and unequivocal admission. 5.5 As regards the third ground, it was submitted that the learned Judge erred in finding that the Respondent was paid by the Appellant in the sum of US$415,000.00. It was submitted that there was no evidence on the record at all. That the only evidence on record was the payment of US$115,000.00. 5.6 In arguing the fourth ground, it was submitted that the only determinable agreement between the parties was the loan agreement exhibited as "NBl" in the affidavit in opposition. That the loan agreement shows that the Appellant borrowed the sum of US$100,000.00 on an interest free basis. That the Appellant further borrowed US$25,000.00, in cash on the same terms. That the said loan was repaid and the only outstanding balance was US$10,000.00. That the learned Judge ought not to have entered Judgment on inferred or imputed terms. -J 146.0 ARGUMENTS IN OPPOSITION TO THE APPEAL 6.1 In response to the first ground, it was the Respondent's contention that exhibit "DATl" in the affidavit in reply, shows that the Respondent was instructing "Sam" to transfer the sum of US$400,000.00. That Focus agreed to transfer the amount and charged the Respondent interest. It was submitted that, to that effect, the Respondent and Focus entered into a finance agreement. It was submitted that the statements of account shows that the Respondent received the amount of US$400,000.00. 6.2 It was further submitted that "DATl" in the affidavit in reply shows that the Respondent instructed Focus to transfer the monies to the Appellant, which was done. That after agreeing to transfer, Focus sent an email to the Respondent, the Appellant and Scaw, stating that they would be sending the monies. That this clearly shows that the transfer from Focus to the Appellant was all arranged by the Respondent, of which the Appellant was well aware -J 156.3 In response to the second ground, it was contended that the Appellant did not seem to appreciate the law on Judgment on admission. Reference was made to Order 21/6 HCR, and submitted that Judgment on admission may be entered after an application by way of summons or motion. It was submitted that the law applies to actions commenced either by writ of summons or originating summons. That in either case, the court is entitled to look at pleadings or documents between the parties. Our attention was drawn to the case of Group Five Zambia Limited v Nuco Industrial Service Limited3 where we held that: , "Furthermore, the courts are also empowered to look outside the pleadings in appropriate cases, such as drawing from evi.dence of prior correspondence between the parties as to the clarity of where liability is due. This is the position that was upheld by the Court of Appeal in the said Zambezi District Council case." 6.4 According to the Respondent, it is clear that the application is made by way of summons or motion, -J 16which 1s supported by affidavit evidence. The documents showing admission are exhibited thereto and the court is entitled to draw from the evidence contained in the affidavit. 6.5 It was submitted that the affidavit evidence clearly shows the arrangement between the Respondent and the Appellant with the third parties. That the statements of account show a clear and unequivocal admission made on the part of the Appellant, leaving no contentious issue to be tried. 6.7 In respect to the third ground, it was submitted that the court's conclusion that US$415,000.00, was paid to the Respondent by the Appellant, was based on the totality of the documents before court. 6.8 In response to the fourth ground, it was submitted that the Appellant's submission does not reflect the true position. That where the parties have entered into a written agreement, the court is still entitled to look at the entire evidence to determine the full agreement, especially where the written agreement does not reflect the entire agreement between the parties. The -J 17Respondent placed reliance on the case of J. Evans and Son Port~mouth Limited v Andrea Merzario Limited4 , where the court held as follows; "The court is entitled to look at and should look at all evidence from start to finish in order to see what bargain was struck between the parties. " 6. 9 That the aforestated is in line with the exception to the parole evidence rule. It was submitted that the court below was on firm ground when it held that the emails exhibited as "DATl" in the affidavit in reply, shows a further part of the agreement. That there was clearly no need for the court to proceed to trial as the documents exhibited by the Respondent were clear. 7.0 THE HEARING 7.1 At the hearing, Mr Njovu and Khoma (Ms), relied entirely on the Appellant's heads of argument. Equally Mr Desai and Mr Chungu, Counsel for the Respondent relied on the Respondent's heads of argument which they augmented with brief oral submissions. -J 187.2 We did however not allow Counsel for the Respondent to address us on the issue of the competence of the grounds of appeal, which they alleged were narrative and argumentative and as such were in contravention of Order 10/9 (2) of The Court of Appeal Rules1 (CAR). 7.3 Although Counsel drew our attention to the cases of Midlands Breweries Limited v Summit Brokers Limited5 where we considered procedural objections , which were contained in the body of the heads of argument; we did not allow Counsel to proceed as that was an improper manner of raising objections to the appeal. 7.4 Order 13/5 (1) (2) CAR provides for preliminary objections as follows: "(1) A Respondent who intends to make any preliminary objection in relation to an appeal shall give notice of such preliminary objection to the court and the other parties within fourteen days from the date of receipt of the record of appeal; -J 19- (2) An appellant who intends to make any preliminary objection in relation to an appeal shall give notice of such preliminary objection to the court and the other parties to the appeal, within fourteen days from the date of receipt of the heads of argument or supplementary record of appeal if any." 7.5 In the view that we took, preliminary objections should not be part of heads of argument but should be raised in accordance with Order 13/5 (1) and (2) CAR. 8.0 OUR ANALYSIS AND DECISION 8.1 We have considered the record of appeal and in particular, the Judgment on admission, which is being impugned and the arguments by the parties. Before considering the grounds of appeal, we are of the view that it would be prudent for us to lay out the principles relating to entering of Judgment on admission. 8.2 As we stated in the cases of China Copper Mines Limited v Tikumbe Mining Limited6 and Zambezi District Council v Zolick Kazanda Chantika III (Suing -J 20in his Capacity as Senior Chief Ishindi of the Lunda Chiefdom)7; Order 21 HCR and Order 27 /3 RSC provide for entering of Judgment on admission by a party to a cause or matter on application, either by pleadings or otherwise. The court 1n that respect exercises discretion. 8.3 Order 27 /3/2 RSC, states that admission may be express or implied, but must be clear on the meaning of "either by the pleadings or othenuise". Order 27 / 3 / 4 RSC states that, such admissions may be made express in a defence or in a defence to a counterclaim or by virtue of the rules, as where the defendant fails to traverse an allegation of fact in a statement of claim or there is default of a defence or a defence is struck out and accordingly, the allegations of fact in the statement are deemed to be admitted. The rule goes on to state that the admission may be made in a letter before or since the action or even orally, if the admission can be proved. 8.4 The case of Ellis v Allen8 confirmed the object of Order 27 RSC, as being to enable a party obtain a speedy -J 21Judgment, where the other party has made a plain admission entitling the plaintiff to succeed and that it applies where there is a clear admission on the face, which it is impossible for the party making it to succeed. 8.5 That position was confirmed in the case of Himani Alloys Limited v Tata Steel Limited9 and by our Supreme Court in the case of Zega Limited v Zambezi Airlines and Diamond General Insurance Limited1 0 , where they stated as follows: "We wish to state from the outset that it is true that under both Order 21/6 HCR and Order 27/3 RSC, the court is empowered to enter Judgment in favour of a party, based on admissions off act, made by the other party on its claim (s). However, we must hasten to mention that the position of the law as spelt out under Order 27/3/2 RSC, is that admission of liability by the party against whom Judgment on admission is sought to be entered may be express and or implied and the admission must be clear. This position was -J 22echoed in the case of Himan Alloys Limited, in which the Supreme Court of India made it clear, inter alia that the admission must be a conscious and deliberate act of the party making it and showing an intention to be bound by it. And that unless the admission is clear, unambiguous and unconditional, the discretion of the court should not be exercised to deny the valuable right of a defendant to contest the claim against him." 8.6 The Supreme Court went on to state the following: "The purpose and applicability of the rule relating to admissions which may be relied upon in an application for Judgment on admission was discussed in the Ellis case, and from the above, it is clear that the admissions relied upon must be unconditional and/or unequivocal. The learned authors of Black's Law Dictionary, at pages 1663 and 1667, define the terms unconditional and unequivocal respectively as follows: -J 23- "Unconditional - not limited by a condition, not depending on uncertain event or contingency absolute." "Unequivocal - unambiguous clear, free from uncertainty." It is clear from the authorities aforestated, that the power of the court to enter Judgment on admission is discretionary and that in order for the court to enter Judgment on admission, the admission(s) relied upon, must not be limited by any conditions and that it must be clear." 8.7 Having stated the law, we now revert to the grounds of appeal which we shall address in the sequence as argued. The first ground attacks the finding of fact by the learned Judge, when she found that there was an arrangement between the parties for the Respondent to be paid monies as shown by exhibit "DATl" in the affidavit in reply. According to the Appellant, this issue needed to be subjected to a trial as "DATl" on the face -J 24of it, does not show the arrangement as alleged by the Respondent. 8.8 We note that the genesis of the application for Judgment on admission are the statements of account. When the application was made, the Appellant in the affidavit in opposition alleged that the sum of US$400,000.00, was inadvertently included in the statements of account. It is in refuting that allegation that the Respondent produced the emails contained in "DATl" to clarify and to put the allegation to rest. 8.9 "DATl" clearly shows that the emails were related to the movement of the sum of US$400,000.00. It further shows that the Appellant was alive to the arrangement and the movement of the said amount. We find no basis on which to fault the learned Judge as the finding of fact based on "DAT 1" was clear, justifiable and not perverse 1n any manner. 8.10 The second ground of appeal is a bit difficult to digest. It seems to be attacking the manner in which the learned Judge considered the application. The application was made by summons and supported by - -J 25an affidavit and skeleton arguments. In opposing the application, the Appellant filed an affidavit and skeleton arguments. In reply, the Respondent filed an affidavit and skeleton arguments 8.11 In considering the application, there is no barrier on the part of the court to take into consideration all the pleadings before the court, the affidavit evidence_a nd the arguments 1n analyzing and evaluating the application. Doing so, did not essentially mean, the matter was one which should have been subjected to trial to test the demeanor of witnesses when the documents before the court clearly spoke to the situation. 8.12 We do not agree with the Appellant that the evaluation and analysis by the Court meant that there was no clear and unequivocal admission in the statements of account. Guided by the Zega case, the statements of account standing on their own clearly and unequivocally show that there was an admission on the part of the Appellant and that they were made and signed of~ by the Appellant on its letter head consciously -J 26and deliberately. The learned Judge however could not resist the evaluation and an analysis, because of the assertion by the Appellant that the sum of US$400,000.00, was inadvertently included in the statements of account. This is what brought about the evaluation and analysis and not the statements of account on their own. 8. 13 The third ground attacks the finding of fact by the learned Judge that the Appellant paid the Respondent the sum ofUS$415,000.00. According to the Appellant, that finding was not supported by evidence. We note that, this averment was made by the Respondent in paragraph 10 of the statement of claim and it was not specifically denied or traversed by the Appellant in its defence. These payments are also tabulated in the statements of account which were prepared by the Appellant. It is therefore startling, to hear the Appellant allege that the payments were not supported by evidence. 8.14 The fourth ground alleges that the learned Judge after finding that the loan agreement exhibited as "NBl" was -J 27not the entire agreement, the learned Judge inferred further terms of the agreement. We do not agree that the learned Judge inferred any terms. The averments and assertions by the Respondent were that in addition to the loan agreement, there were verbal agreements. These were supported by the statements of account in terms of what was paid out and repaid as well as correspondence exchanged between the parties. In our view there were no inferences made by the learned Judge nor findings not supported by evidence. 9.0 CONCLUSION 9. 1 The appeal lacks merit and is accordingly dismissed with costs to the Respondent e are to be taxed in default of agreement. J. CHASHI COURT OF APPEAL JUDGE m u P .C.M. NGULUBE A.M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE