MINING INDUSTRY PENSION FUND v DAB MKTG (PVT) LTD 2012 (2) ZLR 132 (S)

Flynote

Practice and procedure — admission — binding nature of — court not entitled to ignore admission unless it is withdrawn — no need for plaintiff to prove admitted fact — absolution not competent if plaintiff fails to prove such fact — when court may go behind admission — possible where admission contrary to facts

Headnote

The respondent leased premises from the appellant, in which it conducted its various operations, including the manufacture of foodstuffs and pharmaceuticals. Over the years in which the respondent was in occupation of the premises, leaks occurred in the roof and various aspects of the respondent's operations had to be curtailed or terminated. Because the respondent considered that the appellant was responsible for the upkeep and repair of the building and its roof, rentals were not paid. The appellant claimed an order for the cancellation of the lease, plus arrear rentals and holding over damages.

The respondent, in its plea, admitted that it was indebted to the appellant on the grounds alleged and in the amount claimed, but it pleaded that it was excused from paying the amount of the appellant's claim because the appellant was indebted to it for damages which it claimed in the counter-claim filed with its plea. It prayed for judgment on the main claim to be stayed until there was judgment on the counter-claim. In the counter-claim, the respondent alleged that the appellant was required to maintain the external structure, including the roof of the premises, and that, in breach of its obligations, the appellant failed to repair the roof of the premises, forcing the respondent to shut down its operations. The

A respondent claimed that, as a result of having to shut down its operations, it lost profit in a sum stated in the counter claim.

On the basis of the evidence before it, the trial court found that the appellant had breached the terms of the lease agreement by failing to keep the gutters in a good state of repair. Having established liability, the court found that the respondent had failed to show the nature of the loss that it suffered and which flowed from the established breach and on that basis absolved the appellant from the instance on the counterclaim.

On the main claim, the court also absolved the respondent from the instance. Its reasoning was that the respondent was entitled to an abatement of rentals for the period during which the premises could not be used for the manufacture of pharmaceuticals. It found that the respondent was entitled to pay reduced rentals during the period it had limited use of the premises and was further not obliged to pay any rentals for the period after it ceased production all together. On this basis, it held that the amount of rent due to the appellant was unknown and thus absolution should be granted.

Held, that a formal admission made in pleadings cannot be ignored by the court before which it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue or facts admitted. Thus, where liability in full is admitted, as happened here, no evidence is permissible to prove or disprove the defendant's admitted liability. In terms of s 36 of the Civil Evidence Act [Chapter 8:01], it was not necessary for the appellant to prove the extent of the respondent's liability, as this had been admitted. The formal admission by the respondent was by law conclusive of the issue of liability and the amount, and no onus lay on the appellant to establish the amount. Absolution was therefore not competent. There may be instances where a court may go behind an admission and give a finding of fact at variance with an admission made on the pleadings, but this would only be where it is clear, after a full investigation, that the admission is contrary to the facts and where injustice would result from an adherence to the admission. This was not such a case.

— Held, further, that with regard to the counter-claim, loss of profit following breach of contract is an assessable loss to be proved by evidence, and should not be confused with loss of future earning capacity, which calls for compensation for diminished earning capacity and is assessed as general damages. Damages for lost profit must be proved and cannot be presumed. They must be capable of some arithmetical calculation and cannot be assessed from nothing. The evidence led tended to show general loss, not lost profit, and the court was right in ordering absolution from the counter-claim.