Picla Women Empowerment Limited v Falka Mubikayi (2022/HN/256) (26 December 2025) – ZambiaLII

1 IN THE HIGH COURT FOR ZAMBI 2022/HN/256 AT THE DISTRICT REGISTR ~f'uit z"'""e, HOLDEN AT NDOLA .,. , ~~or;~.. ••' ·•· ··, .q L: ~ ~~J (Civil Jurisdiction) { 6 BETWEEN c1v1ln£c,smv /:, NOOLAHIGHCOUMT PICLA WOMEN EMPOWERMENT LIMTED PLAINTIFF AND FALKA MUBIKAY I DEFENDANT Before the Hon. Mr Justice D. Musonda For the Plaintiff : Mr D.S. Libati - D.S. Libati - Legal Practitioners For the Defendant : Mr J. N. Hara with Ms G. Sakala and Ms B. Masikini, Bw~;r.;~ ~ -. Legal Practitioners. •' .,~ ~1.,'f"' a,$-?:J!t;.,1•,/ , RU CASES REFERRED TO: : - _,JI/I 1. Re Bramblevale Ltd (1970)3 ALL ER 1062 2. Savenda Management Services Ltd vs Stanbic Bank Zambia Ltd and Another (2018) Vol. 3 Z.R. 160 3. Misiya vs Misiya (1972) Z.R.269 LEGISLATION REFERRED TO: 1. The High Court Rules, Chapter 27 2. The Debtors Act Chapter 77 3. The Rules of the Supr~me Court of England (The White Book) 1999 Edition R.2 This is a composite ruling on the plaintiffs application for an order to commit the defendant to prison for contempt of Court; the defendant's motion to raise a preliminary issue and the defendant's application to set aside writ of fieri facias for irregularity. BACKGROUND On 12th July, 2022, the plaintiff commenced the present matter seeking, inter alia, payment of the sum of ZMW 327,000 and interest. On August, 2022, the defendant entered appearance and filed 5th a defence and counterclaim. On 17th October, 2023, the matter was referred to mediation. The parties managed to settle the matter at mediation as follows: "That the defendant shall pay as a full and final settlement to the plaintiff K235, 000. The said amount shall be paid as follows: R3 (a) KSO, 000 on or before the last date of February, (b) Seven (7) installments of K25,000 each to be paid on or before the last day of the months of April, June, August, October, December, 2023, February, and April 2024. (c) The last installment of Kl 0, 000 shall be paid on or before the last day of June, 2024. (2) Payments shall be made through the plaintiff's advocates. (3) Each party to bear their own costs. On 27th September, 2023, the plaintiff filed exparte summons for leave to commit the defendant to prison for contempt of Court. On 12th October 2023, I granted the leave. On 12th October, 2023, the plaintiff filed a notice of motion for an order of committal pursuant to Order 52 rule 3 of the Rules of the Supreme Court of England. It was supported by an affidavit R4 deposed to by Auxilia Mzumira Zulu. List of authorities and skeleton arguments were also filed. On 22nd November, 2023 the defendant filed an affidavit in opposition and a notice to raise a preliminary issue together with skeleton arguments. The motion sought the determination of the Court on the following: 1. Whether the order granting leave for an Order of committal of the defendant to prison should be set aside for want of disclosure of material facts by the plaintiff. 2. Whether the entire application for committal of the defendant is defective, incompetent, irregular and abuse of the Court process. On Dece1nber, 2023, the defendant filed summons for an 8th order to set aside writ of fifa for irregularity. The summons was supported by an affidavit deposed to by the defendant and skeleton arguments. RS On 15th January, 2024, the plaintiff filed an affidavit in reply; an affidavit in opposition to an affidavit in support of the notice of intention to raise preliminary issues, and an affidavit in opposition to the defendant's application for an order to set aside the writ of fieri facias . Also filed were list of authorities and skeleton arguments. CONSIDERATION AND DECISION A consideration of the affidavit evidence shows that on 7th December, 2022, the parties reached a settlement in terms of which the defendant was expected to pay the sum of K235,000 in installments. The contention of the plaintiff is that the defendant has not obeyed the mediation consent settlement order and is therefore in contempt of Court. The defendant objects to the application stating that she had not failed to pay the judgment debt. According to her, she has paid close to K125,000. She further took issue with the fact that the consent Order did not have a penal notice to warrant the committal proceedings. R6 In my view, the all-important question is whether the defendant can be committed to prison for defying an order for the payment of money? In Re Bramblevale Ltd1, Lord Denning said the following regarding contempt of Court: ''.A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond a reasonable doubt. " The Supreme Court in Savenda Management Services Ltd vs Stanbic Bank Zambia Ltd and Another2 remarked as follows: "The burden of proof of contempt of court is indeed proof beyond reasonable doubt that the alleged contemnor committed the act and that it was contemptuous. There must also be mens rea. This is because the proceedings are quasi criminal in nature though civil and in line with the case of Re Supply of Ready Mixed Concrete... it is an essential prerequisite to a finding of contempt that the factual basis R7 shall have been proved beyond all reasonable doubt and there shall have been mens rea on the part of the alleged contemnor. In casu, therefore, the plaintiff has to show that: (i) there is an order or judgment of the court; (ii) the judgment or order was served personally on the defendant; and (iii) the defendant has willfully disobeyed the order or judgment. According to Order 31 rule 12 of the High Court Rules, Chapter 27 of the Laws of Zambia, a mediation settlement, once it is signed by the parties, the mediator and registered under Order 37 rule 7 of the rules, has the same force and effect as a judgment, order or decision and can be enforced in the like manner. RS In casu, therefore, it is plain that a judgment was made that required the defendant to pay some money to the plaintiff by a certain date. That judgment has not been obeyed. I am equally certain that the defendant is fully aware of the judgment. The general rule is that no judgment or order of a Court requiring a person to do or abstain from doing any act may be enforced unless a copy of the judgment or order has been served personally on the person. According to "AMZl", a copy of the mediation settlement, the defendant personally signed the order or judgment. The question is whether she willfully disobeyed the order of the Court. A mere failure to pay a judgment debt is not contempt of Court. It becomes contemptuous if it can be shown that the failure to pay is deliberate. For example, if it can be established that the defaulting party has or has had the means to pay the judgment debt but willfully refuses to pay, that would be acting in contempt of Court. In Misiya vs. Misiya3 the following was said regarding default to pay a judgment debt: R9 ''In this case an application was made for an order to commit the plaintiff in the action for disobedience to an order which had been made directing him to pay a sum of money to the plaintiff.. attachment rs never granted except for disobedience of an order to do or abstain from doing some specific thing. Here the only order which could be made in pursuance of the undertaking is to pay the money. The words of the Debtors Act, 1869, s. 4, show that under such circumstances, if the case does not come within any of the exceptions mentioned, there can be no imprisonment for default in payment for money is due as a debt. " Section 3 of the Debtors Act Chapter 77 of the Laws of Zambia places a restriction on the imprisonment of a person who defaults in paying a debt. Section 4 of the Act allows the committal of a person for failure to pay a judgment debt when it can be shown that the person making default either has or has had since the date of the judgment or order the means to pay the sum in respect of which he has made default, and has refused or neglected or refuses to pay the same. RIO In casu, it has not been shown that the defendant has had the means to pay the judgment debt and has willfully neglected to pay the amount ordered. The evidence shows that she has been struggling to pay the agreed sums. She has however endeavored to make some repayment in total of K130,000. In my view, this is not a case in which committal of the defendant can be directed. I therefore decline to order her committal. Regarding the defendant's application for an order to set aside a writ of fieri facias for irregularity and being an abuse of Court process, it is clear that the defendant is indebted to the plaintiff. The defendant does not dispute this fact. The contention is that the plaintiff issued a writ of fieri facias for the sum of K210,000 when the amount owing is less than K210,000. She exhibited "FM 1" to prove the deposit slips. It is said that she has so far paid the plaintiff close to K130,000. If that is correct, her indebtedness must be around KB0,000. According to the plaintiff the defendant has only made repayment amounting to K95,540. There is a dispute as regards the exact amount the defendant has Rll paid. What is clear, though, is that the amount owing is less than K210,000. According to "AMZ3" on 27th March, 2023 the plaintiff issued a writ of fieri f acias for the sum of K2 l O, 000. I have looked at the exhibit marked "FM 1". I observe that most of the repayments were made after the writ was already issued. On 26th December, 2023 the sheriff rendered a return of the writ. A number of items were collected from the defendant. At the time the writ of fierifacias was executed, the defendant1s indebtedness had reduced. Arising from the foregoing, can it be said that the writ was irregularly issued? In my view, the writ of fieri facias was endorsed with the correct amount-K210,000. This was the amount owing at the time the writ was issued. Subsequent to the issuance of the writ, the defendant made some payments. These had no bearing on the writ that had already issued. In my assessment, therefore, the writ was regularly obtained for the correct amount that was owing at the material time. Rl2 CONCLUSION As a result, I do not agree that the issuance of the writ of fieri facias was an abuse of process or that it was irregularly issued. This application therefore must fail and with costs.