Kasumpa Mwansa Kabalata v Zambia Telecommunications Company Limited (APPEAL NO.72/2023) (26 February 2025) – ZambiaLII

I THE COURT OF APPEAL OF ZAMBIA APPEAL NO.72/2023 HOLDEN AT NDOLA ( Civil Jurisdiction) KASUMPA MWANSA KABALATA LLANT AND ZAMBIA TELECOMMUNICATIONS C MPANY LIMITED Coram: Chashi, Makungu and Banda-Bobo, JJA On 19th and 26th February, 2025 For the Appellant: Mr. E. B. Mwansa- State Counsel of EBM Chambers with Mr. J. Kayuni of Kayuni & Partners. For the Respondent: Mrs. S. C. Phiri In-house Counsel JUDGMENT MAKUNGU JA, delivered the judgment of the Court. CASES REFERRED TO 1. Chibwe v. Chibwe (2001) Z.R 1 2. Chilima v. Chilima (2006) Z.R 103 3 Corbett- Tribe v. The Zambia Publishing Company Limited (1973) Z.R. 9 (H. CJ 4. Mpande Nchimunya v. Stephen Hibwami Michela (SCZ/ 12/ 1997 5. Christopher Lubasi Mundia v Sentor Motors Limited (1982) ZR 69 6. African Banking Corporation Zambia v. Mubende Country Lodge Limited SCZ Appeal 116 of2016 LEGISLATION REFERRED TO: 1. Married Women's Property Act, 1882 2. The High Court Act, Chapter 2 7 of the Laws of Zambia 3. The Subordinate Court Act, Chapter 28 of the Laws of Zambia 4. Matrimonial Causes Rules No. 20 of 2007 5. The English Law Extent of Application Act, chapter 11 of the Laws. 6. The Sheriffs Act, Chapter 37 of the Laws of Zambia OTHER MATERIALS REFERRED TO 1. Gamer, B.A. (2004) Black's Law Dictionary, Thompson West. 8th Edition 2. Halsbury's Laws of England Volume 17 1.0 INTRODUCTION 1.1 This appeal emanates from the decision of Judge C. Zulu of the High Court dated 30th December, 2022, in cause number 2010/HP/769 in favour of the Respondent. The appellant was seeking among other reliefs, general and special damages for unlawful and wrongful execution of a writ of fieri Jacias (fifa) and defamation. 2.0 BACKGROUND 2.1 The facts not in dispute are that around 2003, Mr. Eric Irvine Kabalata of Flat No.4, BP NIPA, Muchisa Road, Rhodes Park, J2 Lusaka, before marrying the appellant, (plaintiff in the court below) entered into a contract with the respondent (defendant in the Court below), whereby the latter agreed to provide mobile telephone services at a fee. And in 2005, the respondent sued the appellant's husband in the Subordinate Court under Cause 2005/SSP/762, seeking to recover the sum of K16,977,454.18 arising from the aforesaid contract. A default judgement was obtained on 8th June, 2006. Execution of judgement was carried out on 14th October, 2009, by the Sherriff of Zambia. By the time execution was carried out at Flat no 4 BP NIPA, Muchisa Road, Rhodespark, Lusaka, the appellant was married to Eric Irvine Kabalata. The appellant under the said Cause No. 2005/SSP /762, took out Interpleader Summons, as a claimant, claiming ownership of the seized goods, on the ground that they did not belong to her husband, but herself. The application resulted in a Consent Order dated 30th October, 2009, pursuant to which the seized goods were returned to the plaintiff. 2.2 The kernel of cause number 2010/HP/769, was that the said execution was unlawful and wrongful, because the seized goods belonged to the appellant and not her husband, and that as a result of the said wrongful execution, the Appellant and her J3 children were made to suffer mental anguish, embarrassment, defamation and loss of amenities. 2.3 In its defence, the respondent countered that, the execution by Writ of .fieri facias (fifa) was levied on the actual address the Appellant's husband gave. It was averred that at the time of carrying out the execution, there was no way of ascertaining that the properties found at the said address belonged to the appellant and not her husband. 4.0 DECISION OF THE LOWER COURT 4.1 The learned trial Judge after analyzing the evidence, found that the respondent lawfully and regularly obtained a default judgment against the appellant's husband Mr. Irvine Kabalata on 8th June, 2006, against the debt he owed the appellant for provision of telephone services. At the time judgment was obtained, the home address for the appellant's husband was Flat No. BP NIPA, Muchisa Road, Rhodespark, Lusaka. This is the same address he provided to the respondent at the time he was applying for the services. It remained the same address of his residence after he married the appellant. J4 4.2 When execution was levied on October 14, 2009, the appellant was still married to Mr. Irvine Kabalata. 4.3 That it was evident that the appellant's husband never notified the respondent of any change of address. In fact, in her letter dated 29th June 2006, the appellant confirmed that the default judgment on 28th June 2006, was left at their residence while her husband was outside the country. 4. 4 That the absence of Mr. Kabalat a from the "matrimonial home" at the material time, did not provide immunity from seizure of whatever was perceived to be his or family assets. 4.5 On the claim for damages for defamation, it was adjudged that the defamatory words allegedly made by Mr. Zulu, an employee of the respondent, were not pleaded. 4.6 The Court resolved that the execution of the fifa was not wrongful or unlawful and dismissed the appellant's case with costs. 5.0 THE APPEAL 5.1 Dissatisfied with the decision of the Court below, the appellant appealed to this Court fronting the following three (3) grounds of appeal: JS 1. The Court erred in law and fact when it held that the appellant's goods could be levied against by the respondent; 2. The Court below erred in law and fact when it held that the execution was not irregular, wrongful and unlawful; and 3. The Court erred in law and fact when it held that since there was no ounce of illegality with regards to execution then the alleged defamation was untenable. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 In support of the above grounds of appeal, the learned Counsel for the Appellant relied on the heads of argument dated 23rd March 2023. 6.2 The gist of counsel's argument under-ground 1 was that, the Court erred when it held that the appellant's goods could be levied against by the respondent. On page 23, lines 12 to 14 of the record, the lower court held as follows: "Where one spouse is independently adjudged to be a judgment debtor, the whole family assets sitting at the residence reasonably known to be for the couple is at a legitimate risk of execution." J6 6.3 Counsel submitted that the court below erred by combining the doctrine of privity of contract and principles of family law. Counsel added that the two branches of law are distinct. 6.4 He stated that the principles of family law cannot be imported into contract law. To buttress the foregoing submissions, counsel cited several cases including Chibwe v. Chibwe1 and Chilima v. Chilima,2 in which the Supreme Court emphasized that the principles of contract have been greatly altered by section 56 of the Matrimonial Causes Act, number 20 of 2007. 6.5 Counsel further submitted that a contract between a third party and a party to the marriage cannot be extended to the spouse who is not privy to it. 6 .6 In light of the foregoing, it was submitted that the doctrine of privity of contract excludes any third parties from deriving benefit or performing the contract to which they are not parties. 6. 7 Counsel cited the Married Women's Property Act, 1 section 1(2) which applies by virtue of Section 13 of the High Court Act and Section 2 of the English law Extent of Application Act, Chapter 11 of the Laws of Zambia, which gives women the right to own property independently of their husbands. J7 6.8 Under-ground 2, counsel submitted that the lower court erred in law and fact when it held that the execution of the judgment was not irregular. He contended that enforcing the contract against the Appellant offended the principles of privity of contract and the Married Women's Property Act 1882. 6. 9 Further, counsel submitted that the respondent never served the originating process on the defendant (appellant's husband) personally under the original cause and was fully aware that the assets to be executed belonged to a non-party of the contract. He cited Order VII Rules 1 and 3 of the Subordinate Court Rules which clearly state as follows: "(l) Personal Service of a petition, notice, summons, order or other document of which service is required may be made by any person. (3) Unless, in any case, the Court thinks it is just and expedient otherwise to direct, service shall be personal; that is, the document to be served shall be delivered to the person to be served himself." J8 6.10 On Ground 3, Counsel indicated that the Court erred in law and fact when it held that since there was no ounce of illegality with regard to execution, then the alleged defamation was untenable. He submitted that Mr. Zulu an employee of the respondent shouted to the crowd that the appellant was a crook. The words were defamatory and caused damages to the appellant's reputation. Counsel cited the case of Corbett- Tribe v. The Zambia Publishing Company Limited,3 where Windeyer, Jin Uren v John Fairfax and Sons Pty Ltd stated that: "When it is said that in an action for defamation, damages are given for an injury to the plaintiffs reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot; be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurable. It seems to me that, properly speaking, a man defamed does not get compensation J9 for his reputation. He gets damages because he was injured in his reputation, that is, simply because he was publicly defamed. For this reason, compensation by damages operates in two ways- as a vindication of the plaintiff to the public and as consolation to him for a wrong done." 6.11 Finally, the appellant's counsel prayed that the appeal be allowed. 7.0 RESPONDENT'S HEADS OF ARGUMENT 7. 1 The respondent's counsel relied on the heads of argument dated 6th September 2023. In opposing ground one, counsel contended that third party's goods in the custody of a judgment debtor can be taken in lawful execution of Court judgment. Where this happens, an aggrieved third party can take out an inter-pleader summons to claim their goods or property. This position was enunciated by the Supreme Court in the case of Mpande Nchimunya v Stephen Hibwani Michelo4 . 7 .2 She further submitted that the trial Court was on firm ground and had addressed its mind to the issue of whether a third party's property in possession of the judgment debtor can be JlO subject of an execution of a judgment. The appellant's property, merely got caught up in a lawful execution. 7 .3 Regarding the appellant's argument that the lower Court's application of family law to contract law, and it alleged failure to apply the Married Women Property Act to the facts was erroneous, is flawed because the right to enforce a judgment of the Court is not enshrined in contract law. Further, where property of a third party is in custody of a judgment debtor, such property is at risk of being executed under a lawful execution of a Court judgment. This is what the lower Court was trying to say when he rejected the appellant's arguments that though the goods executed on were at her husband's residence, she owned them thereby making the execution unlawful. 7 .4 According to counsel, the appellant's reliance on the Married Women's Property Act of 1882 is misconceived as matrimonial property cannot be distributed or divided between spouses during the subsistence of the marriage. The appellant's marriage was still subsisting at the time of the execution. In support of this submission, reliance was placed on the case of Chilima v Chilima2 . J11 7.5 To counter ground two, counsel repeated his arguments under ground one, on the aspect of the execution having been lawful. Additionally, he referred to Halsbury's Laws of England Volume 17 page 274 at paragraph 457, which states inter alia: "An execution is wrongful where the indorsement on a writ directs the sheriff to levy at a wrong address or on the goods of a person other than the execution debtor." 7.6 Counsel submitted that the appellant's argument that she notified the respondent that the assets in the house where they stayed belonged to her as she is the one who bought them, is untenable as she could only claim ownership of the goods following the seizure via interpleader procedure under Order XLI rules 53 to 56 of the Subordinate Court Act. 7. 7 As for the appellant's argument that the respondent knew that the goods that were seized were hers as shown in the Consent Order dated 30th October 2009, the respondent's counsel argued that the Consent Order did not have retrospective effect to mean that the ownership of the goods had been proved before execution of judgment took place. J12 7.8 She further submitted that the lower Court was on firm ground, in holding that a forewarning that the judgment debtor was away from the matrimonial home, was not legally binding to halt the execution. Counsel further argued that the respondent had no locus standi to challenge the validity of the Court proceedings and subsequent enforcement of the judgment against her husband because she has never been a party to the Court proceedings between the respondent and her husband. 7.9 On ground three, with regard to the lower Court's dismissal of the appellant's claim for damages for defamation, the respondent's counsel argued that particulars of the defamatory statement attributed to the defendant were not given. That the appellant stated in paragraph three of her statement of claim under the subheading general damages, that the basis for defamation was the mere act of seizing the appellant's goods by the bailiffs, "suggests that the appellant was and is a delinquent person ... " no evidence of any statement attributed to the respondent or Mr. Zulu was disclosed. To fortify her argument, she referred to the case of Christopher Lubasi Mundia v Sentor Motors Limited5 where the Supreme Court held inter alia that litigants are bound by their pleadings. J13 7.10 That the appellant casually referred to defamation only in the reliefs sought. She finally submitted that the lower Court's findings were on firm ground on the claim of defamation, and ground three must also fail. 8.0 ANALYSIS AND DETERMINATION 8 .1 We have scrutinized the record of appeal and the heads of argument filed by the appellant. 8 .2 The main question in this appeal is whether the execution of the .fifa was unlawful and wrongful. The other question is whether as a result of the execution, the appellant and her children suffered mental anguish and stress, embarrassment, defamation and loss of amenities as she had claimed. 8.3 Since the grounds of appeal are interwoven, we shall tackle them together. 8.4 Enforcement of judgments is provided for in Order 42 of the High Court Rules3 as fallows: "All property whatsoever, real or personal, belonging to a party against whom execution is to be enforced, and whether held in his own name or by another party in trust for him or on his behalf (except the wearing apparel and bedding of himself or his family and the tools and implements of his trade, if any, to J14 the value off ive hundred thousand Kwacha or, in the case of a farmer, one million Kwacha is liable to attachment and sale in execution of the decree." 8.5 Order 7 Rule S(a) of the Subordinate Court Act, provides for service other than personal service. It states: "Where it appears to the court (either after or without an attempt at personal service) that, for any reason, personal service cannot be conveniently effected, the court may order that service be effected either (a) by delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served." 8.6 Further, in the case of Mpande Nchimunya v. Stephen Hibwami Michelo,4 the Supreme Court held that: - "Where a writ of execution is regularly issued and goods of a judgment debtor are seized, then the question of wrongful execution or seizure does not arise. This is so even when goods of a third person in possession of a Judgment debtor are seized in execution thereof." (Emphasis by underlining is ours) JlS 8. 7 Moreso, Section 14 (2) of the Sheriffs Act,7 provides as follows: "In every case of execution, all steps which may legally be taken therein shall be taken on the demand of the party who issued such execution, and such party shall be liable for any damage arising from any irregular proceeding taken at his instance." (Emphasis by underlining is ours) 8.8 In light of the foregoing, we note that there was a valid judgment against the appellant's husband. The writ of execution was properly issued and directed to the residential address of the judgment debtor, Mr. Eric Irvine Kabalata at Flat No. 4, BP NIPA, Lusaka. According to the appellant, he had gone to the United Kingdom for school. It was established that as a married couple they used to live together. It is evident, therefore, that the respondent duly followed the procedure to enforce the judgment. 8.9 Where goods of a third person in possession of a judgement debtor are seized in execution of a judgement and the execution is regularly issued, then the seizure or execution cannot be said to be wrongful even though the goods seized did not belong to J16 the judgment debtor. (see Mpande Nchimunya v. Stephen Habwani Michelo,4 ). 8.10 We hold that in this case, the writ of execution was lawfully issued and there was no mala fides in seizing the goods that were on the premises although it was later proved that they belonged to the appellant. 8.11 This raises the question; "What is the remedy or course of action open to the innocent third party affected by the execution?" 8. 12 The answer lies in Order XLI rules 53 to 56 of the Subordinate Court Act, Cap 28, on interpleader summons. Rule 56 provides as follows: " Where the whole or any part of the claimant's claim is not admitted by the party issuing the execution, the Under-Sheriff shall make application to the clerk of the court to issue, and the clerk of court shall issue, a summons calling before the court the claimant and the party issuing execution, and the court shall hear and determine the claimant's claim, and make such order between the parties in respect thereof, and of the costs of the proceedings, as it shall think fit, and shall also adjudicate between such parties, or either of them, and the Under-Sheriff with respect to any damage or claim or to damages J17 arising or capable of arising out of the execution, and make such order in respect thereof, and of the costs of the proceedings, as it shall deem fit. .... " 8.13 In addition, in the case of African Banking Corporation Zambia v. Mubende Country Lodge Limited,6 the Supreme Court adopted the interpretation of interpleader in Black's Law Dictionary, 8th Edition as: "A suit to determine a right to property held by a disinterested third party (called a stakeholder) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to litigate ownership. Typically, a stakeholder initiates an interpleader both to determine who should receive the property and to avoid multiple liability." (Emphasis added) 8.14 The said Court rules and case law are quite specific. There is no doubt that interpleader proceedings are a mechanism employed by a disinterested stakeholder (usually the Sheriff of Zambia) to facilitate litigation on ownership of property seized by the sheriff or the bailiffs in execution of a judgment when an interested party lays a claim to such property. J18 8.15 We are of the view that according to Order XLI rule 56 of the Subordinate Court Rules, the appellant ought to have claimed damages in the interpleader proceedings, as the Court has the jurisdiction to adjudicate on ownership, related orders, damages arising from the execution, and costs. 8.16 Therefore, the court below was on firm ground in applying the case of Mpande Nchimunya, 4 when it stated at J15 that: "As rightly noted in the case of Mpande Nchimunya the remedy in a situation such as this, perhaps lies in interpleader proceedings, which of course the plaintiff pursued and yielded fruits, rather than take out a suit against a judgment creditor pursuing a validly issued judgment and execution process. The misfortune the plaintiff experienced was not caused by the defendant pursuing the fruits of its judgment but the nonfeasance of the plaintiff's husband avoiding paying his adjudged debt to the defendant." 8.17 However, we note that the record of appeal contains a ruling by the Hon. Lady Justice E.P. Sunkutu dated 19th March 2019, in cause number 2010/ HP/0769, from pages 153 to 170, in which she allowed the appellant to commence a fresh action. The ruling was made upon hearing the respondent's application to dismiss the appellant's action for being res judicata. J19 8.18 On the issue of defamation, we uphold the lower court's findings that there were no proper pleadings and no proof of the allegations. (see the case of Christopher Lubasi Mundia v Sentor Motors Limited supra) 8.19 In the premises, we hold that the decision of the lower court is sound on all the issues that were in controversy between the parties. 9.0 CONCLUSION 9 .1 In closing, the appeal is dismissed in its entirety for lack of merit with costs to the respondent, the same to be taxed in default of expenses. J. C SHI COURT OF APPEAL JUDGE C. K. MAKUNG COURT OF APPEAL JUDGE ········~ ········ ........ ' A. M. BANDA-BOBO COURT OF APPEAL JUDGE J20