Lake Trans Mozambique Lda v Ubaba Logistics Limited and Ors (2022/HN/06) (31 December 2025) – ZambiaLII

BETWEEN: LAKE TRANS MOZAMBIQUE LDA JUDGMENT CREDITOR AND UBABA LOGISTICS LIMITED JUDGMENT DEBTOR CHUNDU HOSEA SIMFUKWE 1 ALLEGED CONTEMNOR sT TAMARA HAMAYANA ALLEGED CONTEMNOR 2ND Before Honourable Mr. Justice D. Musonda For the Judgment Creditor: Mr. D.S Libati- Messrs D.S Libati Legal Practitioners. For the Judgment Debtor and Al~eged·-~2-~tit~ginio rs: Ms. M.S. C Kampamba- Messrs Celine Nair & (lOmpany: · ,,AA• • • I ' • ·1 .; • Legislation Referred To: 1. The Rules of the Supreme Court ( 1999) Edition. R2 Cases Referred To: 1. Beatrice Nyambe vs. Barclays Bank Zambia PLC (2008) Z.R Vol. 2 195. 2. Hussein Versi, Van Tall Logistics & Forwarding Limited vs. Airsea Clearing & Forwarding and Omar Awadh Transport Limited CAZ Appeal No. 24 /2020. 1.0 Introduction. 1. 1 This Court was approached in this matter through a Notice of Motion for a committal Order following the judgment debtor's failure to liquidate the judgment sum in full. 1.2 The application was made pursuant to Order 52 of the Rules of the Supreme Court of England ( 1999) Edition. 1.3 The terms of the Notice of Motion were that the two directors of the defendant company namely Chundu Hoseah Simfukwe and Tamara Hamayanda (hereinafter referred to as the 1st and 2°d alleged contemnors respectively) be committed to prison for contempt of court for R3 th defying the Consent Order dated 25 January, 2021 as follows: - (i) Failing to complete payment of the judgment sum of US$51, 056.12 by the 31st May, 2022; (ii) Neglecting to complete the full payment with a balance of US$32, 055.60 remaining outstanding; (iii) Defying the writ of sequestration issued on 15th March, 2024. 2.0 Factual Background of the Matter 2.1 The judgment creditor took out a writ of summons against the th defendant on 11 January, 2022 claiming, inter alia, an Order for payment of the sum of US$51, 056 m respect of manganese transportation from Serenje to Beira 1n Mozambique. 2.2 On 24th January, 2022, the parties executed a Consent Order wherein, the principal sum of US$51, 056.12 was admitted by the judgment debtor and that the same would be paid in 05 R4 monthly installments with the first being on 31st January, 2022. 2.3 The defendant defaulted on the Consent Order and the plaintiff issued a writ of fieri facias on 1st April, 2022 for the outstanding balance of US$36, 056.12. There was no report on record to explain what occurred after the writ of fieri facias was issued. 2.4 However, on 15th March, 2024, the judgment creditor issued a writ of sequestration. The record is again silent on whether the said writ of sequestration was executed or not. 2.5 On 29th May, 2024, the judgment creditor applied and was granted an ex-parte Order for leave of this Court to apply for an Order for committal of the 1st and 2nd alleged contemnors, being directors in the judgment debtor company for contempt of court. RS 2.6 This ruling, therefore, concerns the question whether or not; the two alleged contemnors should be committed to prison on grounds highlighted in paragraph 1.3 above. The application was accompanied by an affidavit and supporting skeleton arguments. 3.0 The Judgment Creditor's Affidavit Evidence and Arguments. 3.1 The affidavit in support of the application was deposed to by Jawad Mohammed, the finance manager in the judgment creditor company. 3.2 He deposed that the judgment debtor was in default of meeting the terms of the Consent Order dated 25th January, 2021 and a total sum of US$ 31, 055.60 was outstanding. Several attempts were made to execute on the Consent Order but they all proved futile. On that basis, the judgment creditor wished to have the alleged contemnors, being the two directors in the R6 judgment creditor company, committed to prison for contempt of court. 3.3 The judgment creditor's arguments were premised on Order 52 / 2 of the Rules of the Supreme Court and the case of Sebastian Saizi Zulu vs. The People to highlight the jurisdiction of this court to punish for contempt of court and the nature of contempt of court respectively. The judgment creditor's position was that since the judgment debtor failed to obey the Consent Order dated 25th January, 2021, it was in clear contempt of court. 3.4 The judgment creditor further relied on the case of Mungaila Mapiko and Another vs. Chaande (Mungaila Royal Establishment), and Kundiona vs. The People to posit that the scope of contempt of court is wide and is not restricted to words spoken or act done calculated to bring a court into contempt or to lower its dignity and authority. j R7 3.5 The judgment creditor complained that the judgment debtor's conduct defeats the very fiber and concept of the rule of law which this Court should uphold. 3.6 The judgment creditor prayed that the said two alleged contemnors should be committed to prison for willfully defying the court Orders. 4.0 Affidavit Evidence in Opposition and Arguments. 4.1 The judgment debtor and the alleged contemnors opposed the application and filed an affidavit 1n opposition and accompanying arguments into court on 23rd July, 2024. 4.2 The gist of the affidavit in opposition was that it was erroneous for the judgment creditor to cite the alleged contemnors for contempt without piercing the corporate veil. R8 4.3 In addition, it was argued that the judgment creditor had not shown the purported conduct of the alleged contemnors, and therefore, the application before court was otiose. 4 .4 It was deposed that the actions complained of by the judgment creditor do not amount to contempt of court. That in any case, the alleged contemnors were not served with the proceedings and as such, they were not privy to the proceedings. 4.5 The arguments in the accompanying skeleton arguments were that the application was irregular in that it cited the directors in their individual capacity without first having the judgment debtor's corporate veil pierced. The case of Salomon vs. Salomon was relied on to posit that since the judgment debtor was a company civil matters should not be enforced by way of contempt as that goes against the rules of enforcement of judgments in Zambia. R9 4.6 Order 52 Rule 1 (3) of the Rules of the Supreme Court (1999) Edition, the cases of Attorney General vs. Times News Paper Limited, Monde Jane Mungaila Mapiko (Suing on behalf of the Traditional Council of Mungaila Royal Establishment vs. Victor Mukabe Chaande, and Elias Kundiona vs. The People were cited to highlight the nature and applicability of the contempt of court proceedings. 4. 7 Further relied on was the case of Beatrice Nyambe vs. Barclays Bank Zambia PLC to augment the proposition that since the consequences of contempt are serious, there is always need for the court to exercise great care when dealing with applications relating to contempt of court. 4. 8 The Court was urged to be satisfied that the allegation against the alleged contemnors was proved beyond reasonable doubt as underscored in the case of Re: Bramblevale. RlO 4. 9 It was argued that the application before court was frivolous and vexatious and in line with the principle of law in the case of Finsbury Investments Limited vs. Antonio Ventriglia and Others and Order 2 Rule 1 of the Rules of the Supreme Court of England ( 1999) Edition, the Court should dismiss it. 4.10 It was further argued that 1n addition to not serving the contempt proceedings on the alleged contemnors, the judgment creditor did not lead any evidence to establish that the alleged contemnors acted deliberately in their conduct. The case of Savenda Management Services Limited vs. Stanbic Bank Zambia Limited was called in aid to augment the proposition that the evidence against the alleged contemnors was not proved beyond reasonable doubt. The defendant's prayer was that the contempt proceedings should be dismissed for being irregular. 5.0 Evidence in Reply and Arguments. Rll 5.1 The judgment creditor's affidavit 1n reply and skeleton arguments were filed into court on 7th August, 2024. 5.2 The gist of the said affidavit in reply was that the alleged contemnors were fully aware of the circumstances giving rise to this application. The alleged contemnors, despite being aware of the proceedings, willfully disobeyed the Consent Order and the subsequent writ of fieri facias and sequestration. 5.3 It was deposed further that the since the alleged contemnors did not settle the debt owed to the judgment creditor, they acted in contempt of the Order of this Court. 5.4 In support of the foregoing, the judgment creditor argued in the accompanying skeleton arguments that the alleged contemnors did not challenge the judgment creditor's evidence R12 that they deliberately and willfully refused to fulfill the terms of the Consent Order and further that they were served. 5.5 It was further argued that the proceedings were properly served on the judgment debtor's advocates of record (Messrs J. & M. Advocates) in line with Order 4 Rule 1 of the High Court Rules and Order 67 Rule 1 of the Rules of the Supreme Court (1999) Edition. According to the judgment creditor, this was proper service. 5.6 The judgment creditor added that the alleged contemnors did not dispute the judgment creditor's allegation of contempt of court. In view of the foregoing, the judgment creditor submitted that this is a proper case for the Court to grant an Order of committal to prison of the alleged contemnors. 6.0 Hearing of the Application. R13 6.1 At the hearing of the application, both counsel relied on the affidavits and skeleton arguments filed in support and in opposing the application. 7 .0 Consideration and Decision. 7 .1 I have considered the parties' affidavit evidence and skeleton arguments upon which they relied to argue and oppose the application for committal. I have further considered the judgment creditor's affidavit and arguments in reply. 7.2 It is trite that it is the bounden duty of the courts to effect court judgments and orders, and to ensure speedy resolution and closure of disputes. A judgment for the payment of money may be enforced by, among others, contempt proceedings. This is premised on the court's inherent power to uphold its dignity and integrity in the dispensation of justice. R14 7.3 In this matter, it is common ground that the parties executed a Consent Order for the sum of US$51, 056.12 on 25th January, 2021. The said judgment sum was agreed to be paid in varying monthly installments. Following that, the judgment debtor defaulted on the Consent Order and a writ of fieri facias and later, a writ of sequestration were unsuccessfully issued to enforce the Consent Order. 7.4 Both parties were ad idem that only a sum of US$31, 055.60 was owed by the judgment debtor to the judgment creditor. Based on that, the judgment creditor took out contempt proceedings against the directors of the judgment debtor alleging that the duo was in willful disregard of the terms of the Consent Order dated 25th January, 2021. 7.5 The judgment debtor, while acknowledging its indebtedness to the judgment creditor, disputed that its directors- the alleged contemnors were in contempt of court. Firstly, that the contempt proceedings were not personally served on the RlS alleged contemnors and secondly, that contempt proceedings could not be issued against the directors before the corporate veil of the judgment debtor was pierced. 7.6 The question for determination, therefore, 1s whether the contempt proceedings against the alleged contemnors are properly before court to warrant the alleged contemnors' committal to prison. 7. 7 The parties demonstrated profound knowledge regarding the nature, purpose and application of contempt proceedings against any person who tends to abuse the court proceedings or anyone who impedes the administration of justice. 7.8 I affirm that civil contempt of court occurs, among others, where there has been a failure to obey a judgment or order or to carry out an undertaking. R16 7.9 The enactment of Order 45 Rule 5 of the Rules of the Supreme Court ( 1999) Edition provides three options for enforcement of a court order against a corporate entity; a writ of sequestration against the corporate property, a writ of sequestration against the personal property of any director or other officer of the body corporate; or by an order of committal against any director or other officer of that body corporate. 7.10 Be that as it may, it is cardinal to state that the default rule is that contempt proceedings should be personally served on an alleged contemnor. In line with that, the court guided in the case Beatrice Nyambe vs. Barclays Bank Zambia PLC1 that: "Contempt of court quite apart from being concerned with the authority and dignity of the court, also ultimately deals with the liberty of the individual. The consequences of disobeying Court Orders whether properly or improperly obtained are very serious. It is for this reason that the Court must exercise great care when dealing with applications R17 relating to contempt of court. It is imperative that the rules are strictly followed." 7 .11 It is clear from the above that the power to punish a contemnor ought to be exercised onerously and only when it is clear that there was wanton disobedience of a clear Court Order and the alleged contemnor was fully aware of it. 7 .12 This brings me to the alleged contemnors' contention that they were not served with the Consent Order which directed that the judgment debtor pays the agreed sum of US$51, 056.12. 7.13 The law on civil contempt of court is well settled. The service that is required is personal service on the alleged contemnors. It is not enough that the alleged contemnors were directors in the judgment debtor which acted through them from the inception of the matter to the time the execution of the Consent Order was attempted. R18 7.14 The enactments of Order 65 Rule 2 (3) and Order 45 Rule 7(9) of the Rules of the Supreme Court provide for documents which require personal service and one of them are orders, to which obedience maybe enforced by committal or sequestration. 7. 15 The Court of Appeal in the case of Hussein Versi, Van Tall Logistics & Forwarding Limited vs. Airsea Clearing and Forwarding and Omar Awadh Transport Limited2 also emphasized the need for personal service on alleged contemnors of the Order requiring obedience. 7. 16 The facts of that case which are on all fours with the matter in casu were that the respondents, who were plaintiffs in the High Court, issued a writ of summons against the appellants who were defendants claiming the sum of US$159, 146.32, damages for loss of business and income; damages for breach of contract and interest. On 16th July, 2019 the parties entered into a consent judgment whose terms were that the R19 respondents would recover the judgment sum together with costs of the action. 7 .1 7 The appellants defaulted on the consent judgment and efforts to execute on the consent judgment proved futile. On 3rd September, 2019, the High Court granted an Order for the arrest of the 1st appellant who was a director in the 2nd appellant company. In its Judgment, the Court of Appeal stated as fallows: - "It is trite that the provi.sions of Order 45 Rule 5 ( l} of the RSC must be read together with Rule 7. Enforcement cannot be obtained unless a copy of the order is served personally on the person in default. As regards an order requiring a body corporate to do an act, it shall not be enforced unless a copy of the order has been personally served on the officers against whom an order of committal is sought and served before the expiration R20 of the time within which the corporate body was required to do the act." 7 .18 The Court went further and stated: - "The respondents contend that there was and is no logical need for the appellants to claim that they ought to have been served with the Consent Judgment because they participated in arriving at it and undertook to pay on time. Further, that the 2nd appellant was aware of the contents of the judgment and even made a partial payment. ... Order 45 Rules 7 makes explicit the conditions precedent to enforcement of the judgment or order of committal, by specifying the documents to be served, the time within which the person on whom such orders must be served and the terms of the penal notice to be endorsed. ... We are equally of the view that an order of committal of a person for disobedience to an order requiring him to do a given act within a given time as in casu will not be directed unless a copy of that order with the proper endorsement has been personally served upon him in due time. The fact that a person is aware of R21 the order or that his lawyers are aware of it is not suf[i.cient to dispense with service of the order." (Underlined for emphasis) 7.19 The Court expressed the view that it is in the public interest for strict obedience to court judgment/order, proper court processes must be followed in enforcing them particularly those relating to an order of contempt committal against persons/ directors etc. The conditions precedent to the enforcement of a judgment or order by order of committal or sequestration must be met. 7.20 In the matter under consideration, the judgment creditor stated that the Consent Order, the writ of fieri facias, writ of sequestration and the committal proceedings were served on the judgment debtor's previous advocates of record. R22 7.21 Following the guidance in the case of Hussein Verst, Van Tall Logistics & Forwarding Limited vs. Airsea Clearing and Forwarding and Omar Awadh Transport Limited2, I am not satisfied that this was proper service for the purposes of committal proceedings. The judgment creditor's evidence as contained in its affidavit in support and reply was undoubtedly bereft of information establishing the discharge a prima facie burden beyond reasonable doubt that the alleged contemnors were fully aware of the Order requiring obedience and that they wantonly disobeyed it. 7.22 It was not sufficient that the alleged contemnors were fully aware of the proceedings and they executed the Consent Order. What was needed was personal service of the contempt proceedings as well as the documents that needed obedience on them personally and not their advocates of record. 7.23 There being no proper service as aforestated, I find that the committal proceedings are not properly before court to warrant R23 the committal of the alleged contemnors to pnson for contempt of court. I further find that it is otiose to address the other concerns raised by the alleged contemnors and the judgment debtor. 8.0 Decision. 8.1 In view of the reasons I have given above, I dismiss the whole contempt proceedings against the alleged contemnors. I Order that costs of the application be in the cause. DATED THIS ......•..••... HIGH COURT JUDGE.