Pone Musuku v AB Bank Zambia Ltd (2022/HP/1296) (5 November 2025) – ZambiaLII

., IN THE HIGH COURT OF ZAMBIA 2022/HP/1296 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) PONEMUSUKU PLAINTIFF 0 5 NOV 2025 AND REGISTRY 8 AB BANK ZAMBIA LTD ~:::::~ DEFENDANT For the Plaintiff: Mr. E. Simfukwe, Ms E. Sikombwa and Mr. B. Mwanzafrom Mesdames Mushipe & Associates For the Defendant: Mr. B. Mwanza Junior, Mr. Z. M. Mubiana and Ms. M. Kanyanta ofM essrs Nsapato and Company. JUDGMENT A. CASES REFERRED TO: 1. Zambia Radiological and Imaging Co. Ltd v Development Bank ofZ ambia Appeal No.28 of2016 [2016} ZMSC 286; 2. Rosemary Ngoma and 10 Others v Zambia Consolidated Copper Mines Ltd (2003) ZMSC; 3. National Drug Company Limited and Zambia Privatization Agency v Mary Katongo Appeal No. 79/2021; 4. Lambe Chibesakuda v Rajan Lekhraj Matani (1998) S.J 39 SC; 5. Mr. Lee Africa Investments Limited v Charles Mungalu (2024) ZMS 316; 6. Mobile Motors Zambia Ltd v Mubanga and Attorney General (2012) ZMSC57; 7. Christopher Lubasi Mudia v Sentor Motors (1982) ZR 66; 8. Barclays Bank (Z) LC and Frank Mutambo Appeal No. 9 of 2019; 9. Mwale v Mtonga and Another SCZ No. 25 of 2015; 10. Mazoka and Others v Mwanawasa and Others (2005) ZR 138· ' 11. Kapoko v The People No. 23 of 2016 ZMSC6; Page 1 of 48 12. Mususu Kalenga Building & Another v Richman's Money Lenders Enterprises (1999)ZMSC 5; 13. Hiteshbhai Patel v Agye Frempoong Kofi & Another SCA Appeal No.13 of2 017; 14. Zambia Extracts Oils and Colourants Limited v Zambia State Insurance Board of Trustees (2016) 2ZR 316; 15. Pulse Financial Seroices Limited (TlA Entrepreneurs Financial Center) v Pamela Bwalya Lambe (2020) ZMH C472; 16. Colgate Palmolive (Zambia) Inc. v Abel Shemu and 11 0 Others Appeal No. 181 of2 005; 17. Mwamba Nthenge and 2 Others; 18. Masauso Zulu v Avondale Housing Projects (1982) ZRl 72; 19. Morgan v Sim (1885) UKPC 33; 20. J. Z. Car Hire v Chala Sirrocco Enterprises SCZ No.26 of 2002; 21. Mhango v Ngulube SCZ No. 5 of 1983; 22. Snoopa Metal Ores Trading Co. LLC PTY v Tassdemir Mining Company Limited and 2 Others 2024/H PC/ 0192; 23. Richwell Siamunene v Sialubalo Gift (2017) ZR Vol.3~ 355; and 24. Chilola Intertrade and Others v Economic Empowerment Commission CAZ, Appeal No. 282 of2 022. B. LEGISLATION REFERRED TO: 1. The Constitution ofZ ambia Act No. 2 of 2016 2. The Movable Property (Security Interest) Act No. 3 of2 016 3. The Companies Act No 10 of 2017 4. Banking and Financial Services Act No. 7 of2 017. C. OTHER WORKS REFERRED TO: 1. B. A. Gamer, Black's Law Dictionary, 1 ()th Edition, 2009, Thomson Reuters, USA. 1. INTRODUCTION 1.1. This matter was commenced by the Plaintiff on 24th August, 2022, by way of Writ of Summons and Statement of Claim. By Leave of Court granted on 31st May, 2024, the Writ of Summons was amended. Page 2 of 48 1.2. The Defendant entered a Memorandum of Appearance and filed a Defence and Counterclaim on 12th September, 2022 which was latter amended on 6th July, 2023. 2.0. PLEADINGS 2.1. The Plaintiff claims that on or around 20th October, 2020, he acquired a loan facility from the Defendant in the sum of Seventy Thousand Kwach (70,000.00) repayable with interest within a period of Twelve months. 2.2. The facility was secured by collateral valued at Ninety-Eight Thousand Three Hundred Kwacha (98,300) itemized as follows: 2.2.1. Madza Motor Vehicle MPVR/A J C5747C valued at K40,000.00 2.2.2. Inventory valued at K30,000.00 2.2.3. Household goods valued at K24,000.00 2.2.4. Fixed assets valued at K4,300.00 2.4. The Plaintiff avers that notwithstanding his default in repaying the outstanding balance of Forty Five Thousand Kwacha (K45,000.00.), the Defendant collected all the collateralized items. Further that a search at the Road Transport and Safety Agency Office by the Plaintiff revealed that the Defendant had changed the ownership of the collateralized Motor Vehicle Registration No. AJC 5747 using the loan facility documents. 2.5. According to the Plaintiff, despite making payments in the sum of Twenty Five Thousand Kwacha (K25,000.00) to reduce Page 3 of 48 the outstanding balance to Forty Five Kwacha (K45,000.00), the Defendant collected collateralized items valued at Ninety Eight Thousand Kwacha and Three Hundred Kwacha (K983,000.00) without any regard to the Twenty Five Thousand Kwacha which had already been paid thereby reducing the unliquidated balance to only Forty Five Thousand Kwacha (K45,000.00). 2.6. The Plaintiff would at trial aver that the Defendant went out of the terms of the said facility by levying distress on the Plaintiffs business place at Shop No. 2 Collosal Mall, Mumbwa Road wherein the Defendant collected items which were valued at Nine Hundred and Eighty Three Thousand Kwacha (983,000.00) without a Court Order, the authorization and consent of the Plaintiff. The particular of the items said to have been collected from the shop are: 1 Circle Drive valued at K420,000.00 1 Mud Board for 180 Sinomach Grader valued at KlB0,000.00 HydraulicPumpforJCB valued at K120,000.00 2 Grade Boom for Sinomach Grader valued at Kl00.000.00 2 Rippers for Grader CAT 140H valued at K28,000.00 16 Rippers each valued at KS000.00 K25,000.00 16 Big Bucket Tips collectively valued at K71,000.00 4Tips valued at KS000.00 each K20,000.00 1 Tyre 1 712265/ 70 valued at K2, 000. 00 1 JBC Tyre valued at 16,000.00 TOTAL VALUE K983,000.00 Page 4 of48 2.7. It is the Plaintiffs averment that the Defendant's action and conduct was wrongful and unlawful, extremely prejudicial to the Plaintiff and amounted to unjust enrichment as it collected items that were not part of the Loan Facility Agreement and without regard to other payments made by the Plaintiff and without a Court Order enabling it to leery execution. 2.8. The Plaintiff would aver that some of the items that were collected and seized by the Defendant or its agents were subject of other contracts with some Local Government Councils and Mines (referred to herein as entities) who had already made part payments toward the procurement of the said items. That because of the Defendant's illegal conduct, when the said entities went to pick up their spares that the Plaintiff had already confirmed availability, they found that the said items were not with the. Plaintiff contrary to the earlier confirmation. Further that the entities reported the Plaintiff to the Zambia Police and he was arrested and detained on allegations of Obtaining Money by False Pretences. 2.9. The Plaintiff would aver that he spent a lot of money on Lawyers to help him secure his release from Police custody and he lost his business by being in Police detention as a result of the Defendant's conduct. 2.10.The Plaintiff stated that the Defendant had neglected to return the items which were not part of collateral for the Loan Page S of48 despite several pleas and reminders by the Plaintiff resulting in the Plaintiff being greatly inconvenienced. 2.11.The Plaintiffs averment is that the interest which the Defendant has been adding is against the Bank of Zambia Regulations. That according to the Regulations, where payment of principal or interest is in arrears for more than ninety (90) days, the Financial Service Provider is supposed to declare the loan non - performing and recover only the principal amount, any interest in arrears due and expenses incured in the recovery of amounts owed by the borrower. Further that the Defendant is and was expected to stop interest applicable to the credit facility after 90 days and all interest charged thereafter were unlawful. 2.12.The Plaintiff would aver that because of the Defendant's action and conduct, he has suffered loss and damage, prejudice and inconvenience. That he seeks the following: 2.12.1. An Order that the execution conducted by the Defe nda nt without Court Order was wrongful and unlawful. 2.12.2. An Order for compensation in the sum of Four Hundred and Fi.fly Thousand Kwacha (K450,000.00) for loss of sales and profit as a result of the Defendant's illegal seizure of the Plaintiffs goods. 2.12.3. Compensation in the sum ofT hirty -Five Thousand Kwacha (K35, 000. 00) being money the Plaintiff spent on legal fees to secure his release from Police Page 6of48 Cells where he was arrested on allegations of Receiving Money by False Pretences. 2.12.4. An Order for payment of the sum of Nine Hundred and Eighty Three Thousand Kwacha (983,000.00) in respect of the value of the assorted items illegally collected from the Plaintiffs shop. 2.12.5. Damages for wrongful and unlawful execution. 2 .12. 6. Damages for loss of business. 2.12. 7. Interest and any sum found due. 2.12. 8. An Order for Costs and any other relief the Court shall deem fit. 2.13. The Defendant in its Defence denies the contents of the Plaintiffs Statement of Claim and avers that the outstanding balance on his indebtedness in May, the month of confiscation of the Defendant's assets, was in excess of ZMW79,485.81 and not ZMW45,000.00 as alleged and that he would be put to strict proof. 2. 14. Regarding the change of ownership of the Motor Vehicle, the Defendant denied this assertion except to say that it had the Defendant included as an additional owner based on the Agreement between the Parties. That the Defendant would aver that the confiscation of assets was done after the Plaintiff failed to repay the Laon and was effected within the terms and conditions agreed upon by the Parties and that the Plaintiff would be put to strict proof of his allegations. 2.15. The Defendant would aver that the Plaintiff granted it a floating charge with respect to the items collected from Shop No. 2 Colossal Mall, Mumbwa Road pursuant to the Page 7 of 48 Agreements entered into by the Parties. That the floating charge crystalized upon default thereby allowing the Bank to proceed with confiscation of the aforesaid items to recover the debt. That under the Terms and Conditions, the Plaintiff agreed and gave prior consent to the effect that all pledged assets may be confiscated upon default without a Court Order. 2.16.The Defendant's averment was that at the time of confiscation, the Plaintiff did indicate the values of the confiscated inventory and that the Plaintiff would be put to strict proof. That the seizure does not amount to unjust enrichment as the Plaintiff is indebted to the Defendant having failed to pay the Laon on agreed terms. 2.17. The Defendant would aver that the interest applied to the Loan is within the provisions of the Bank of Zambia Regulations as well as the Loan Contracts entered into by the Parties and that the Plaintiff would be put to strict proof of his claims. That the Defendant had infact only collected the principal amount owing and interest payable on the facility since the 3rd instalment. Further that the Regulations do not preclude the Defendant from charging interest due at the contractual rate on a non performing Account but that the Regulations are a guide on the amounts recoverable on a non performing Loan. 2.18.In its Counter Claim, the Defendant averred that the Plaintiff was on 20th October, 2020, availed a Loan Facility in the sum of K70,000.00 disbursed pursuant to a Credit Agreement to be repaid in 12 months equal instalments of ZMW8,045.19 Page 8 of48 inclusive of interest of 5.00% per month calculated by the Bank from the date of credit disbursement to the date of full loan payment. That the same was advanced to the Plaintiff for the sole purpose of increasing his working capital. 2.19. It was averred that the Loan was secured by chattels and inventory provided by the Plaintiff pursuant to a Collateral Contract dated 20th October, 2020, as well as a Personal Guarantee provided by a Third Party. That it was an express term of the Credit and Collateral Contract as well as the terms and conditions incorporated therein by virtue of the Collateral Contract that the Defendant would seize all pledged assets in an event of defaulting by the Plaintiff. 2.20.The Defendant would aver that the Loan having expired on 1st November, 2021, and the Plaintiff having paid only 6 of the 12 contracted instalments, the Defendant enforced its Security Agreements and proceeded to collect some of the assets pledged pursuant to the said Agreements. That despite several reminders to the Plaintiff to pay the outstanding balance, he has failed and/ or refused to liquidate the outstanding Laon amount which stood at ZMW120,964.93 as at 12th September, 2022, and that the Plaintiff remains indebted to the Defendant. 2.21. The Defendant therefore Counterclaims: 2. 21.1. Payment of the sum of ZMWl 20,964.93 being the outstanding balance owing from the Plaintiff to the Defendant as at 12th September, 2022, on account of the Laon advanced to him at his own request and Page 9 of48 secured by way of chattels, fixed assets and inventory. 2.21.2.An Order that the Seizure effected by the Defendant pursuant to the Credit and Collateral Contract dated 2CJth October, 2020, is lawful and validly executed pursuant to the aforesaid Agreements. 2.21.3. An Order that the said assets collected as aforesaid be sold to settle the Loan. 2. 21. 4. Damages for breach of contract. 2.21.5. Interest on the outstanding amount at the contractual rate until full and final settlement of the debt herein. 2.21. 6. Costs of and incidental to these proceedings. 2.21. 7.Any other relief that the Court may deem fit. 2.22.In the Plaintiffs Reply and Defence to Counterclaim, it was reiterated that the goods seized amounting to K983,000.00 were not part of the collateral and that the seizure was done without a Court Order thereby prejudicing the Plaintiff beyond the terms of the Loan Facility Agreement. 2.23. Further that, assuming the Plaintiff was truly still indebted to the Defendant in the sum of Seventy Nine Thousand Four Hundred and Eighty one Ngwee (K79,485.81) as alleged by the Defendant, which allegation is false, the Defendant would still lack justification for its illegal conduct of seizing the Plaintiffs goods at Shop No. 2 Colossal Mall, that were not part of the collateral and when the Collateral goods were sufficient to cover any default by the Plaintiff. 2.24.The Plaintiffs position is that there was no Floating Charge whatsoever in respect of the said Loan facility which was Page 10 of48 secured by specific collateral items with ascertained value and not a "Floating Charge". That there was no mortgage between the Defendant and the Plaintiffs shop No.2 Colossal Mall, pursuant to which the Defendant would have seized the goods under the pretext of "crystallization of a floating charge". Further that if the Defendant's claim for "floating charge" was true, the Defendant should have commenced an action and until or unless the Court granted the Order, the Defendant would not seize/ confiscate the Plaintiffs goods illegally and wrongfully. 2.25. The Plaintiff reiterated that the Defendant's action is tantamount to unjust enrichment and that the unlawful conduct by the Defendant caused the Plaintiff gross inconvenience, financial loss and damage. 2.26.In the Defence to Counterclaim, the Plaintiff would aver that in an event of default, the Loan Facility Contract did not empower the Defendant to seize goods beyond the value of the facility and outside the items used as collateral without a Court Order. 2.27. The Plaintiffs averment was that the alleged outstanding balance in the sum of One Hundred and Twenty Thousand Nine Hundred Sixty-Four Kwacha Ninety-Three Ngwe (Kl20,964.93) was an afterthought and as such is not a subject of any Laon Facility Agreement between the Parties. That there is no factual situation, the existence of which entitles the Defendant to obtain from the Court the remedies contained in the Defendant's Counterclaim. Page 11 of48 3.0. THE HEARING 3.1. At the Hearing held on 29th May, 2025, the Plaintiff herein referred to as (PWl) relied on his Witness Statement filed on 10th March, 2023, together with his Bundle of Documents filed on 7th December, 2022 and Supplementary Bundle of Documents filed on 14th August, 2024. 3.2. The Plaintiff largely repeated what is contained in the Statement of Claim and referred to Page 9 of his Bundle of Documents which is the Loan Agreement. 3.3. It was PWl's testimony that the Defendant's agents went to his Shop, No.2 Colossal Mall, Mumbwa Road, trading as Auto Link, wherein they illegally without any Court Order or producing it and without any reasonable cause or consent from himself, collected assorted items that were not part of the Loan Facility or collateral valued at K983,000.00 as shown at Pages 17 to 18 of the Plaintiffs Bundle of Documents. 3.4. Further that consequently, some of the items that were collected were subject of other contracts with Councils and Mines and the Plaintiff was being pursued to deliver them. That as a result of the above irregularities, PWl had been prejudiced and his business has been affected as he had lost all his highly distinguished and trusted customers. 3.5. In Cross Examination, PWl confirmed that he had signed a Loan Agreement and Collateral Agreement with the Defendant and that the Agreement is what governed the relation between the Defendant and himself. He also agreed Page 12of 48 that the Collateral Agreement included a Collateral Evaluation document and that he had also signed a Sale Agreement for his Vehicle. 3.6. PWl, conceded that there are some items in his Bundle of Documents which he wrote after receiving letters from the Defendant. That it is therefore fair to state that when the Bank gave the documents to him, he understood the contents and that he had agreed to pay back the Loan within a period of one year which he had failed to do. 3.7. It was PWl's concession that there was agreement between the Bank and himself that interest would be charged on all outstanding amounts at the rate of 5°/o on the principal amount. He agreed that from the last time he made payment, the value can not be the same as the interest had been increasing on a daily basis. He however denied that the K45,000.00 which had remained had accrued a lot of interest because he had been in default for a long time. He reiterated that what he means is that the amount of K45,000.00 should not change. 3.8. When asked why the amount should remain the same, PWl 's response was that the balance of K45,000.00 should remain the same because the collateral which was placed on the same Laon was fixed at K40,000.00. 3.9. PWl denied that it was a term of the Credit Agreement that the only evidence of money owing would be the Defendant's Record. When referred to Page 3 clause 10 of the Defendant's Bundle of Documents, he responded in the affirmative that Page 13 of 48 by that clause, only the Books of the Bank would be evidence of what was owed. 3.10. When asked whether it was his contention that the Defendant unlawfully confiscated his property, PWl responded affirmatively. He admitted that it was a term of the Credit Agreement that the Bank would seize goods in the event of default. PWl responded in the negative when he was asked whether by the Terms of Credit and Collateral Agreement there was a clause that stated that he had consented. 3.11. PWl did not agree that as part of the Sale Agreement of the Mazda, he had asked for change of ownership. He declined to confirm that ownership of the Mazda was infact not changed insisting that it was changed and that he meant that he was no longer the owner of the Vehicle. 3.12. When referred to Page 8 of the Defendant's Bundle of Documents and asked what the document was, PWl's response was that it was a White Book and the owner was Mutamba Pone Musuku and the other is AB Bank. PWl conceded that by that document, he was still the owner of the Vehicle and that the Defendant only put its details as part owner because it has an interest in the collateral. 3.13. PWl agreed that his claim was that the Defendant got goods worth about a million kwacha from his shop. Responding to the question who was at the shop when the goods were seized, PWl 's stated that there were three (3) gentlemen, that is to say, a cleaner by the name of Douglas Page 14of48 Siakasoka, a salesman called Lubinda Mwikisa and his elder brother Tyrus Mwetwa Musuku. 3.14. He responded in the negative to the question whether what I was seized from his shop are goods that he sells on a daily basis. When asked whether he was selling the goods seized to the Council, his response was that they had a contract with the Council and Mines where they were going to sell the goods. 3.15. When pressed further that because they were stock, the goods seized were part of the inventory, PWl responded in the negative. That according to him, inventories are defined as extra items which were not part of the collateral. 3. 16. Upon being referred to the Plaintiffs Bundle of Documents filed on 7th December, 2022, at Pages 18 and 17, PWl stated that the document showed a list of items and it was signed and witnessed by Patrick Banda and Douglas Siakasoka who was at the shop when the goods were collected. 3 .1 7. On being referred to Page 9 of the same Bundle and asked what the document was, PWl responded that it was a list of items (spares) taken from his shop and that the same was not signed by anybody. When asked whether the list signed and acknowledged by his employees and the one at Page 9 were tallying, PWl's response was that they were not. 3.18. When asked that infact the unsigned document had more items than the signed one, PWl's response was that it was Page 15 of48 not correct. Upon being referred to Page 18 and asked whether on that list there was a Circle Drive and a Mud Board for a Sino Grader, PWl 's answer was in the negative. He finally conceded that the list at Page 9 had more items than the one at Page 18. 3.19. PWl in responding to whether there was any other signed document on the list of goods collected apart from the signed one, said no. When referred to Page 9 and asked whether he agreed that it could have been signed by anyone since it was not acknowledged, he stated that there was no way of knowing who had authored it. PWl conceded that because there are two lists in his own Bundle of Documents, the one which is signed should be believed more. 3.20. PWl did not agree that he was still owing the Bank. When referred to Page 10 of the Plaintiffs Bundle of Documents and asked whether that was the statement of the Laon, he answered affirmatively and that the amount indicated as outstanding in the last now was K98,570.00 as of 28th July, 2021. That from that statement he had not paid that money. When it was put to him that if money is not paid then it is still owing, PWl's response was a no. 3. 21. Upon being referred to Page 30 of the Defendant's Bundle of Documents and asked what document it is, PWl responded that it was a status of the Loan dated 12th September, 2022, and that what was owing was the amount of Kl20,964. 93. That he has made no payment from that date but did not agree that after his default, the Page 16 of48 Bank gave him enough time to make good on his Loan. Further that he was not given time by the Bank when he wrote to it to give him more time and that he remembers the Bank sending him a letter once following the default. 3.22. PWl agreed that the Bank did write a citatory letter to him. That he did not see what was put to him as a warning Letter or the letter of demand said to have been written. That the only letter he saw was a citatory letter which he could not remember when it was written since so much time had passed. 3.23. On whether he agreed that he wrote a number of letters requesting to be given more time by the Bank, PWl 's response was that he wrote two (2) letters, including the one on harassment by the Defendant and that the other one was asking for leniency. He agreed that he did not make enough instalment payment to liquidate the entire Loan. Further, he conceded that in the Loan Agreements read as a whole, the Defendant could confiscate the collateral. 3.24. In Re- Examination on the disparity in the lists appearing at Pages 9 and 18 of the Plaintiffs Bundle of Documents, PWl stated that the first list was different from the one written by the Defendant. 3.25. Clarifying on whether what he owed was the amount of K47,000.00 or Kl20,000.00, PWl stated that he received a letter from the Defendant indicating that the balance which he was supposed to pay was K47,600.00 and that he Page 17 of48 confidently presumed that this was the final payment which he should pay. 3.26. The Plaintiffs second Witness was supposed to be 35 year old Lubinda Mwikisa, a salesman of Garden House. When the Witness Statement said to have been filed by him was shown to him, he denied the signature appearing there and vehemently stated that it was not his. Given this position, I declined to admit the same into evidence. 3.27. Mr. Simfukwe on behalf of the Plaintiff informed Court that with the 2nd Witness having denied signing the Witness Statement, the Plaintiff would dispense with his testimony. He further informed Court that the Plaintiff would also be dispensing with the testimony of the Witness. 3rd 3.28. The Defendant's first witness was 45 year old Victor Nyirenda, a Banker at the Defendant company and a resident of No. 3 Chinika Residential, off Mumbwa Road (herein after referred to as ("DWl "). He relied for his evidence in chief on his Amended Witness Statement filed on 17th April, 2024. 3. 29. It was his testimony that as Business Officer at the Defendant's Cairo Road Branch, he is responsible for creating and managing an own loan portfolio, conducting direct promotion and/ or other marketing activities on a regular basis, screening potential client's eligibility, taking loan applications and arranging appointments with clients, ensure high quality standards of the Bank in relation to complying with the Bank's Credit Policy, Procedures and all Page 18 of48 Memos and Regulations concerning the Credit Department among other roles. 3.30. DWl stated that he came to know the Plaintiff as he was the Business Officer who attended to the Plaintiff when he approached the Bank for a Loan in October, 2020, for purposes of increasing his working capital. That DWl opened the Plaintiffs Loan Application, asked questions on the business and the collateral provided by the Plaintiff both at his house, namely House No. 2115 Mable Village, Garden House, Lusaka and at his business located along Mumbwa Road at Colossal Building. Further that the assessed house hold goods, fixed assets and inventory amounted to K98,600.00 as indicated at Pages 4-5 and 1314 of the Defendant's Bundle of Documents. 3.31. It was DWl's testimony that among the assets provided as security by the Plaintiff was a Motor Vehicle, Mazda Registration No. AJC 5747 for which he willingly executed security documents. That DWI also executed an irrevocable instruction to sell and a Vehicle Sale Agreement in favour of the Defendant allowing the Defendant to dispose of the Vehicle in order to recover its exposure under the facility. Further that the Plaintiff by letter dated 20th October, 2022, also gave an instruction as indicated at Pages 9 to 12 of the Defendant's Bundle of Documents that the Bank may proceed to change ownership in respect of the stated Motor Vehicle. 3.32. According to DWl, the other asset provided by the Plaintiff included Household goods, valued at ZMW24,300.00, Fixed Page 19 of 48 Assets valued at ZMW4,300, Inventory valued at ZMW30,000.00 as well as a Motor Vehicle valued at ZMW40,000.00. I was referred to Pages 4 and 14 of the Defendant's Bundle of Documents. 3.33. DWl's testimony was that after assessing the Plaintiffs business as well as his collateral composition, it was established that the Plaintiff was eligible for a Loan and the sum of ZMW70,000.00 was disbursed to him on 20th October, 2020, to be repaid in Twelve (12) months instalments. That however, the Plaintiff has never paid a single instalment on time from the time the Loan was disbursed and continued to repay his Loan late until it fully matured. Further that DWl would usually call the Plaintiff advising him to ensure timely repayment of the Loan to no avail. Further still that DWl regularly served the Plaintiff with reminder letters, warning letters, invitation letters and demand letters to ensure repayment of the Loan. I was referred to Pages 3 to 8 of the Defendant's Supplementary Bundle of Documents. 3.34. It was DWl's evidence that at the time of expiry of the tenure of the Loan, the Plaintiff had only paid six (6) of the Twelve (12) agreed instalments (Page 9 of the Defendant's Supplementary Bundle). That DWl served on the Plaintiff a letter dated 13th January, 2022, demanding payment of the sum of ZMW74,823.33 which stood as owing as at that date but to no avail. Further that DWl served a letter on the Plaintiff dated 28th February, 2022, clarifying to him that the sum owing was not ZMW45,000.00 as alleged Page 20 of48 considering that the Loan had remained unpaid for at least 272 days as at that date (Pages 22 and 26 of the Defendant's Bundle of Documents). 3.35. DWl stated that he made an additional call to the Plaintiff and informed him of the Bank's intention to seize the security pledged as a result of persistent defaults. That because of these defaults DWl began to prepare Protocols for confiscation and possession of the pledged items in accordance with the provisions of the contracts entered into with the Plaintiff, further that the Confiscation Protocol was signed and acknowledged by the Plaintiff (Pages 15 to 18 of the Defendant's Bundle of Documents). 3.36. It was DWl's testimony that the Defendant through his supervisor at the time, Mwamba Mulenga and Lameck decided to enforce the Contracts by effecting confiscation of some of the Plaintiffs assets pledged to the Bank of 12 May, 2022, pursuant to the Agreement entered into with the Plaintiff. That when they reached the Plaintiffs shop, they found two (2) of his shop attendants namely Douglas Siakasoka and Maate who allowed them entry into the shop after they had introduced themselves and asked whether the Plaintiff was around. 3.37. DWl's related evidence was that upon being informed that the Plaintiff was away, his supervisor Mwamba Mulenga called the Plaintiff and informed him that they would proceed with the confiscation of the inventory as pledged under the contract. That the Plaintiffs wife who is also a Co-Borrower to the Loan was notified but she did not go to Page 21 of 48 witness the confiscation while the Plaintiff pleaded on the phone to be given some time as he was scheduled to return to Lusaka that evening. 3.38. It was DWl's testimony that because of the status of the Loan and the fact that the Plaintiff had been indicating that he would pay the Loan but to no avail, they proceeded to effect the confiscation of the Inventory from the Business. That DW 1 's supervisor listed the items collected from the Shop and the two shop attendants provided the values for the items listed and one of the attendants namely Douglas signed as a witness of the items collected (see Page 10 of the Defendant's Bundle of Documents). 3.39. Further that all the items collected formed part of the assets which were earlier assessed by the Defendant. That DW 1 indicated this collateral as Inventory on the Collateral Evaluation Form because it is revolving in nature since it forms part of the client's daily sales and hence can not be specifically described. That it formed part of the Inventory found in the Shop and pledged to the Bank as indicated on the Collateral Evaluation Forms and Collateral Contract and it is on that basis that the Inventory was collected. 3.40. According to DWl, when confiscating the items his supervisor and himself ticked the items which were collected on the Confiscation Protocol duly signed by the Plaintiff consenting to the confiscation of his asset in an event of default. That the items were taken to the Defendant's warehouse facility in Roma. Page 22 of48 3.41. DWl's testimony is that from the sale of goods confiscated pursuant to the agreement with the Bank, only a sum of ZMWlS,614.00 net of maintenance fees, the Auctioneer's commission and Value Added Tax (VAT) was realized reducing the sum due from ZMW120,946.93 to ZMWlOS, 350.93 (see Pages 2 to 9 of the Defendant's Supplementary Bundle of Documents). 3.42. It was stated by PWl that the Plaintiff asked for forgiveness of the debt due, but the said request was denied by the Defendant (see Pages 23 to 25 of the Defendant's Bundle of Documents). 3.43. In Cross Examination by Mr. Simufukwe on behalf of the Plaintiff, DWI confirmed that the Defendant granted a Loan facility of K70,000.00 to the Plaintiff for a duration of 12 months and that the Plaintiff had only paid 6 instalments at the end of 12 months. 3.44. On the balance outstanding amount at the lapse of 12 months, DWl's response was that the balance was K120.000.00 plus. DWl confirmed that the Loan Agreement and the Collateral Agreement were governed by the terms contained therein and that nothing else governed the Agreement other than those. 3.45. It was DWl's confirmation that the Mazda was part of the pledged collateral but denied that the Vehicle had been confiscated. He however confirmed that the Plaintiff had signed a Vehicle Sale Agreement and that the same was to be used in the event of default. Page 23 of 48 3.46. DWl declined to confirm that at the time of the Loan falling into default, the balance outstanding was K45,000.00. He confirmed that after maturity of a Loan and there is a default, there is standard procedure for the Bank to treat the Loan as a bad debt. Further that in the event of default, the recourse for the Bank is to take the pledged collateral. On the question whether he agreed that interest stops accruing after the Bank takes the confiscated collateral, DWl 's response was in the negative. 3.47. Responding to the question on how many months had passed for the bank to take the collateral after the Loan matured on 1st November, 2021, DWl's response was that it was immediately the Plaintiff stopped paying and there was formal communication to that effect even before 6 months passed to that effect. 3.48. When it was put to DWl that the fact that it took 6 months to take possession of the pledged would amount to unjust enrichment on the accumulated interest, DWl 's response was that he did not agree. 3.49. Upon being referred to Page 19 of the Defendant's Bundle of Documents and asked what the document was, DWl stated that it was a list of items that were confiscated from the shop. When asked whether the list was exhaustive on what had been confiscated, DWl 's response was that it was not. He stated that the list was signed by Douglas as well as one of the officials of AB Bank. Further that the list shows the amounts of the items confiscated. Page 24 of48 3. 50. When referred to Page 9 of the Plaintiffs Bundle of Documents and asked to confirm that the list showed everything that was confiscated from the Plaintiff, DWl stated that the list showed some items with exaggerated figures and not everything confiscated. 3.51. In further Cross Examination by Ms. Sikombwa, DWl confirmed that what is appearing at Page 19 of the Defendant's Bundle is the list of what they collected on 12th May, 2022. He admitted that only KlS,000.00 was realized from the sale of the items and that he had no proof of how much of that amount was maintenance fee. 3.52. When referred to Paragraph 2 at Page 29 of the Defendant's Bundle of Documents, DWl stated that the date of the document was 28th July, 2021, and the amount appearing at Paragraph two was ZMW36,887.26. When asked what date and the amount was on the document at Page 30 of the Defendant's Bundle was, DWl stated the date was 12th September, 2022, and the amount was K120,000.00 plus. On why the two figures in the two documents were different, DWl responded that one was the amount outstanding at the expiration of the Loan Agreement period. He agreed that the amounts were different and the time frame between the two documents was too short. 3.53. Upon being referred to page 8 of the Plaintiffs Bundle of Documents dated 7the December, 2022, DWl stated that the list of ticked items was part of what was confiscated. He responded that the Vehicle was not collected because it was unavailable. Page 25 of48 3.54. In continued Cross Examination by Mr. Mwanza, DWl admitted that under the Agreement, the pledged items included a Motor Vehicle valued at K40,000.00, Shop Inventory valued at K30,000.00, Household goods valued at K24,000.00 and Fixed Assets valued at K4,300.00 totaling K98,600.00. He agreed that these were the items the Plaintiff agreed to secure the Loan with. DWl stated in response to a question on payment that it was not correct to state that before any collateral was collected, the Plaintiff made a total payment of K25,000.00 to reduce the outstanding debt. 3.55. In further Cross Examination by Mr. Simufkwe, DWl did not confirm that all the pledged items were confiscated. He however confirmed that not all the property confiscated had been sold. On whether the Bank required a Court Order before the sale, DWI responded that not in this regard. 3.56. On whether it was not reasonable to conclude that since the Plaintiff had made payment, the outstanding balance on the amount secured should have reduced accordingly, DWl responded in the negative. He added that they collected part of the collateral despite the payments made in 6 months. DWI admitted that apart from the items which totaled K98,000.00 in collateral they also collected additional items from the Plaintiffs shop worth slightly less than Kl,000,000.00 which were not part of the original Collateral Agreement as exhibited. 3.57. DWI also agreed that the extra items were seized without any Court Order. He however denied that the Defendant Page 26 of48 and its agent had exceeded the limit set out in the original agreement. 3.58. DWl was referred to Clause 6.1 at page 2 of the Plaintiffs Bundle of Documents and asked whether he agreed that according to the Clause, the Agreement was governed by Zambian Law, and his response was in the negative. 3.59. In Re- Examination, DWl clarified that not all the collateral was collected but only part. Regarding the absence of a Court Order, DWl stated that under the Loan Agreement, the Defendant has a right to collateral without prior notice. 3.60. DW2 was 38 year old Mwamba Bwalya Mulenga resident of Flat 4, RC, Chilanga who relied for evidence in chief on his Amended Witness Statement filed on 17th April, 2024. 3.61. As a Business supervisor at the Defendant's Cairo Road Branch, he is responsible for supervision of credit activities of the team which include anticipating, planning and supervising the daily activities of the team to ensure maximum compliance, heading credit committees and taking Loan decision on a daily basis and ensuring a high quality loan portfolio whilst creating an open discussion among Credit Committee members among other roles. 3.62. DW2's testimony mirrored that of DWl. He stated further that he chaired the Credit Committee which approved disbursement of the Loan to the Plaintiff on 20th October, 2020, and that he also chaired Recovery Committees constituted to monitor performance of the Plaintiffs Loan. That at the time of expiry of the Loan tenure, the Plaintiff Page 27 of48 had only paid Six (6) of the Twelve (12) agreed instalments. Further that due to these persistent delays, DW2 instructed the Business Development Officer to begin preparation for Loan enforcement of the Loan and Security Agreements. 3.63. It was DW2's testimony that he instructed the Disbursing Business Officer, DWl, to serve warning letters, invitation letters and demand letters on the Plaintiff to ensure that the outstanding amounts were timely recovered (see Pages 3 to 8) of the Defendants Supplementary Bundle of Documents. 3.64. Further testimony by DW2 mirrored that of DWl so it will not be reproduced again. According to DW2 after collecting the items that formed part of the collateral of the Plaintiffs shop, he led the team to the Plaintiffs house where the house help and the employees from the business premises witnessed the confiscation of some of the house hold assets pledged. That although DW2 had notified the Plaintiffs wife of the confiscation, she did not go to the house. 3.65. In Cross Examination by Mr. Simfukwe, DW2 confirmed that the Defendant had granted a Loan facility of K70,000.00 to the Plaintiff. He also confirmed that at the expiration of the Loan period, the Plaintiff had paid 6 instalments but that he was not sure of the exact amount outstanding at expiration. He however denied the assertion that what was outstanding was K45,000.00. Page 28 of 48 3.66. DW2 agreed that the Loan Agreement was governed by the laws of Zambia. He also agreed that in respect of the pledged collateral they did conduct their assessment on the pledged items valued at K98,600.00. He further confirmed that the Defendant had since confiscated the pledged items though not all of them. That the biggest item not confiscated was the Motor Vehicle which was not collected as it was not available. Further that one of the steps taken to possess the Motor Vehicle was the indorsement of the Defendant as Absolute Owner on the White Book. 3.67. DW2 did not agree that after the Loan has matured and there is a default, that loan is treated as a bad debt. He stated that taking collateral is not the only recourse available to the Defendant after default. That depending on the nature of default, other recourse is engagement with the client and if this fails then a confiscation is carried out. 3.68. He agreed that the purpose of engagement is to come up with some sort of agreement on how the Loan can be cleared on new terms. It was DW2 's testimony that the Loan Agreement period expired in November, 2021, and confiscation happened 7 months later in May, 2022. DW2 did not agree that after confiscation of the collateral items interest stops accruing. He also did not agree that the Bank waiting for 6 months to execute amounts to unjust enrichment by the Defendant on interest accrual. 3.69. DW2 responded that the Defendant did not have a Court Order when confiscating the Plaintiffs items. He confirmed that the pledged items were sold and that during the sale, Page 29 of48 the Defendant did not have a Court Order. He did not agree that after confiscation of the pledged items, the Plaintiff did not have to pay anything to the Defendant. 3.70. In further Cross Examination by Ms. Sikombwa, DW2 agreed that the items appearing at Page No. 19 of the Defendant's Bundle of Documents are the ones confiscated from the Plaintiff. He however could not confirm that the amounts indicated are the values of the items. On who signed the documents, DW2 responded that it was the Bailiff appointed by the Bank. That only KlS,000.00 was raised from the sale of the items. He confirmed that the amount showing the list at Page 19 is higher than the amount the Defendant claims were realised. 3.68. There were no questions in Re- Examination. 4.0. SUBMISSIONS 4.1. The Plaintiff filed final Submissions on 30th June, 2025, while the Defendant filed its Submissions on 22nd July, 2025. Submissions in Reply were filed on behalf of the Plaintiff were filed on 29th July, 2025. 4.2. I am grateful to the Parties for their spirited Submissions. I will not reproduce the lengthy Submissions but will refer to them where necessary. 5.0. CONSIDERATION AND DECISION OF THE COURT 5.1. I have considered the Pleadings, the evidence and submissions by the parties. Page 30 of48 5.2. There is no dispute that the Plaintiff was availed a loan facility by the Defendant in the sum of Seventy Thousand Kwacha (K70,000.00) which was to be paid within a period of 12 months. There is also agreement that the loan was secured by collateral as contained in the Collateral Agreement by the Parties. 5. 3. As I see it, what is in dispute and falling for my determination is whether there was a breach of the Loan Agreement and Collateral Agreement in accordance with the law by both Parties. Other claims necessarily ensue from this germane issue and will be dealt with in the course of this Judgment as well. 5.4. The Plaintiff concedes that the loan amount was not settled within the 12 months period as stipulated in the Agreement. The Plaintiffs contention is that the Defendant, a Financial Institution acted outside the boundaries of the law by seizing assets beyond those pledged when the Agreement was executed and with the agreed amount which resulted in the Defendant additionally seizing unpledged assets. That this raises questions whether the Defendant's actions were consistent with the law and whether the seizure amounts to the Tort of Conversion. 5.5. My attention was drawn to the cases of Zambia Radiological and Imaging Co. Ltd v Development Bank of Zambia 1 , Rosemary Ngoma and 10 Others v Zambia Consolidated Copper Mines Litd2 National Drug Company Limited and , Zambia Privatization Agency v Mary Kalongo3 all on the Page 31 of48 guidelines and proposition that parties are bound by the terms of the contract freely entered into by the parties. 5.6. Regarding the Tort of Conversion, the Plaintiff placed reliance on the cases of Lombe Chibesakuda v Rajan Lekhraj Matani4 Mr. Lee Africa Investments Limited v Charles , Mungalu5 and Mobile Motors Zambia Ltd v Mubanga and Attorney General6 and also on the Learned authors Clerk and Lindsell on Tort. 5. 7. The Defendant's position is that matters of Conversion and breach of Article 16 of the Constitution of Zambia should not be considered by the Court as parties are bound by their Pleadings. The case of Christopher Lubasi Mundia v Sent or Motors7 was cited for the position that the function of Pleadings is to give fair notice of the case which has to be met and define the issues for adjudication by the Court. Further, the case of Barclays Bank (Z) LC and Frank Mutambo8 was called in aid for the position among others that submissions are neither part of pleadings nor evidence. 5.8. It is a well settled principle of law that the essence of Pleadings is to enable litigants to come to trial well equipped to meet the case of the opposing party. The significance of this is that Pleadings must contain clear and material facts on which the pleader relies for the claim, defence or reply as articulated by the Learned Author Patrick Matibini in Zambia Civil Procedure Commentary and Cases at Page 565. Page 32 of48 5.9. In the Supreme Court case of Mwale v Mtonga and Another9 Malila Js, as he then was, expressed the functions , of Pleadings as follows: "Pleadings are intended to prevent either party from springing up surprises at trial, or allowing an issue to creep out of the wood work, they serve the additional purpose of isolating the issues of law and/act that wi.llfall to be determined by the Trial Court. We have been very consistent in restating the significance of pleadings and there is now a rich corpus Juris of judicial dicta by this Court on the subject". 5.10. In another case of Mazoka and Others v Mwanawasa and Others10 Sakala CJ cited with approval the dicta of Chirwa , J, in the case of Mundia v Sentor Motors7 Limited as follows: "The function ofp leadings is very well known, it is to give fair notice of the case which has to be met and to define the issues on which the Court will have to adjudicate in order to determine the matter in dispute between the parties. Once pleadings have been closed, the parties thereto are bond by their pleadings and the Court has to take them as such". 5.11. In the Submissions in Reply on behalf of the Plaintiff, I have been referred to Article 118 (2) (e) of the Constitution of Zambia Act No. 2 of 2016 for the position that justice must be administered without undue regard to procedural Page 33 of48 technicalities. This is in reference to unpleaded issues of conversion and deprivation of property under Article 16 of the Constitution. 5.12. The view I take is that a correct reading and understanding of Article 118 (2) of the Constitution can not be used to circumvent the need for parties to plead their cases in a manner that does not undermine the Supreme Court decisions of Mwale v Mtonga and Mazoka and Other v Mwanawasa and Others9 referred to above. Article 118 (2) (e) of the Constitution is not meant to cure deficiencies in pleadings. 5.13.In the case of Kapoka v The People11 the Constitutional , Court held that: "Article 118 (2) (e) can not be treated as a 'one size fits all answer' to all manner of legal situations. Article 118 (2) (e) is a guiding principle of adjudication framed in mandatory terms. It is a basic truth applicable to different situations. The Article's beneficial value is an electic fashion depending on the rule before it. Each court will need to determine whether in the particular circumstances of the particular case, what is in issue is a technicality and if so compliance with it will hinder the determination of a case in a just manner". The Court further stated at Page J33 that: Page 34 of48 "Article 118 (2} is not intended to do away with existing principles, laws and procedures, even where the same may constitute technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality". (emphasis mine). 5.14. In my view, the holding above clarifies that the Constitutional requirement to administer justice without undue regard to technicalities is not a blanket licence for indiscipline or laxity. Rather, it is a safeguard against rigid adherence to rules only where such adherence would cause a manifest injustice and not where a party has simply failed to follow procedure. 5.15.In the present case, there must be a level playing field for the parties to litigation and the Plaintiff can not resort to the provisions of Article 118 (2) of the Constitution as a panacea for deficiencies in the Prosecution of his case. If that were the case, most, if not all litigants would have no incentive to comply with Rules of Court and Procedure. In fact it would be tantamount to abetting laxity and non observance of rules by practitioners and litigants in general. 5.16.The net effect of my discourse above is that the Plaintiff fell short of the guidance regarding pleadings so the unpleaded issues will not be entertained by this Court. 5. 17 . The Plaintiff submits that the Defendant did not lawfully register or issue an Enforcement Notice prior to executing against the Plaintiff's Property and that the absence of a Court order renders the seizure of the non collaterised assets unlawful. Section 71 of the Movable Property (Security Page 35 of48 Interest) Act No. 3 of 2016 ("the Act") was relied on for the position that a secured creditor shall prior to enforcing the secured creditor rights register an enforcement notice in the collateral registry in the prescribed manner. 5.18.Reliance was also placed on Section 6 (1) of the Act on resolution of inconsistency between the provisions of the Act and any other written law relating to security interests in moveable property. I was invited to consider the case of Mususu Kalenga Building & Another v Richman's Money Lenders Enterprises12 for the position, among others, that if the notice was not complied with, there was a requirement to commence proceedings for possession. 5.19.My attention was drawn to the cases of Hiteshbhai Patel v Agye Frempoong Kofi & Another13 and Zambia Extracts Oils and Colourants Limited v Zambia State Insurance Board of Trustees14 on the fundamental principle in assessing the effect of statute law on contracts. 5.20.According to the Plaintiff, the absence of an Enforcement Notice underscores a disregard for procedural and statutory accountability. That with regards to the second limb, the absence of a Court Order renders the Seizure of Non Collaterised Assets unlawful. Section 72 of the Act was adverted to on what a secured creditor taking possession and disposing collateral should take note of. 5.21.The case of Pulse Financial Services Limited (T/A Entrepreneurs Financial Center) v Pamela Bwalya1 5 was called in aid for the position that a creditor can only benefit Page 36 of48 from Section 72 of the Act if the borrower agreed in the Loan Agreement to relinquish possession without a Court Order. 5.22.The view I take is that to appreciate and place the Plaintiffs arguments above in their proper context, recourse must necessarily be had to the Credit Agreement, Collateral Agreement and the terms and conditions as executed by the parties. 5.23.I am fortified in proceeding this way by the case of Colgate Palmolive (Zambia) Inc. v Abel Sh.emu and 110 Others16 where the Supreme Court held that: "If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have utmost liberty to contract and their contract when entered into voluntarily shall be enforced by Courts ofj ustice". 5.24.Further comfort is to be found 1n the case of Mwamba Nthenge and 2 Others17 where the Supreme Court at Page J96 while quoting Page 3 of Evan Mckendric's Book on Contract Law held that: "The law of Contract is perceived as a set of power conferring ndes which enable individuals to enter into agreements of their own choice on their own terms. Freedom of contract and sanctity are the dominant ideologies. Parties should be as free as possible to make agreements on their own tenns without the interference of the Courts or Page 37 of48 Parliament and their agreements should be respected, upheld and enforced by the Courts". (emphasis mine). 5.25. The Credit Agreement duly executed between the Parties and appearing at Pages 2 and 3 of the Defendant's Bundle of Documents makes provision for rights and obligations of the parties. I have taken the liberty to reproduce the relevant excerpts: "Clause 7.1. The Bank and its authorized representatives can at any time during the duration oft he Credit Agreement, visit the business and physical residence of the borrower (s) in order to cany out monitoring and check the financial situation, verify existence and state the collateral, verify the use oft he credit and in the event off ailure to pay any instalment to confiscate/ seize the collateral. Clause 7.4 The Bank has the right to unilaterally terminate the Agreement and to demand immediate and full payment oft he entire outstanding principal, interest, collection fees and other charges related to loan recovery as well as to immediately confiscate any collateral securing the loan in any of the following case (each an event of default) (a) ......................... . (b) ......................... . (c) ............................ " Page 38 of 48 5.26.By Clause 5.1 of the Collateral Agreement appearing at Pages 4 and 5 of the Defendant's Bundle of Documents, the Agreement embodies the entire understanding of the Parties and the Collateral Contract Terms and Conditions as found on www,abbank.co.zm exhibited at Pages 6 and 7 of the Defendant's Bundle of Documents form an integral part of the Collateral Agreement. Clause 2 at Page 6 of the Defendant's Bundle in relation to the Collateral Contract Terms and Conditions which provides the following rights and obligation to the Defendant. "i) The Bank has unlimited access to the collateral through out the duration of the Credit Agreement. ii) The Bank and its authorised representatives shall have the right to visit at any time and without the need for prior notice, the business and household premises of the Borrower (s) in order to verity the existence and state of the collateral and business. The Bank shall furl.her have the right to enter the premises of the owner of the collateral to confiscate the collateral assets in the event the Borrower (s) fails to honour the terms of the Credit Agreement. iii) Furl.her to the above, the owner of the collateral hereby consents to the Bank's entry on premises, possession, seizure, confiscation of the collateral assets and disposal of the same without a Court order after the expiry of the Notice period (if any) provided under the confiscation protocol herein Page 39 of48 attached which forms an integral part of this contract". 5.27.I have also looked at the Collateral Evaluation appearing at Page 4 of the Plaintiffs Bundle of Documents which shows the Collateral furnished by the Plaintiff as Household goods, Fixed Assets, Inventory and Mortgages. 5.28. My focus 1s on the category referred to as 'Inventory'. According to Black's Law Dictionary, Inventory refers, among others, to: "A detailed list of assets" 5.29.My understanding from the above 1s that inventory encompasses assets or stock at any given point in time or on hand. Given the position I have taken, the goods which the Plaintiff claims he was holding to supply other purported customers qualified as inventory and therefore liable for seizure at the time the Defendant seized the goods. It was clear even at trial in evidence that the Defendant did not understand and ther efo re appreciate the significance of the word inventory even at the time the Collateral Evaluation as appearing at Page 4 of his Bundle of Documents was being executed. 5.30. The net result of my finding above is that the Plaintiffs claim for compensation of the assorted items collected from his shop amounting to K983,000.00 has failed totally. 5.31.I have addressed my mind to Section 71 of the Act which requires a secured creditor to register an Enforcement Notice in the Collateral Register before proceeding with Page 40 of 48 seizure of assets. I have also gleaned Section 72 of the Act which clearly provides, among others, that there is no need for a Notice or a Court Order through judicial process where the creditor consents in the Credit Agreements. This provision was infact relied upon in the case of Pulse Financial Service Limited (T / A Entrepreneurs Financial Centre) v Pamela Bwalya1 5 . 5.32.By Clause 2 of the Collateral Contract Terms and Conditions, the Plaintiff had consented to the Bank's seizure of collateral and disposal of the same without a Court Order. 5.33. The inescapable conclusion I reach is that the Plaintiff has not made out a case for a declaration or order that the execution by the Defendant without a Court Order was wrongful and unlawful. 5.34.I propose to deal with the Plaintiffs claim for Orders for compensation of K450,000.00 and K35,000.00 together as they appear to be related. I have gleaned the Statement of Claim which reveals that the Plaintiff has not furnished particulars of the loss of business in the sum of K450,000.00. 5.35.Additionally, other than a mere assertion regarding the amount of K35,000.00 purportedly expended by the Plaintiff as payment for legal fees to secure his release from Police custody, there is no evidence placed before me to bolster such a claim. A review of the Plaintiffs Bundle of Documents filed on 7th December, 2022, and the Plaintiffs Supplementary Bundle filed on 4th August, 2024, reveal no basis at all for these claims. Page 41 of48 5.36.There is not an iota of evidence furnished by the Plaintiff on the claims for compensation. Because there is no evidence, the Plaintiff has not proved that it suffered damages entitling him to the award of damages of loss of business and damages on money spent on legal fees to secure his release from police cells. 5.37.1 am guided by the case of Masauso Zulu v Avondale Housing Projects18 cited with approval by the Supreme Court in Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa 10 usefully brought to my attention by the Plaintiff where it was stated that: "It is accepted that where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed in any other case when he makes an allegation, it is generally for him to prove these allegations. A plaintiff who has failed to prove his case can not be entitled to Judgment whatever may be said of the opponent's case". (emphasis mine) 5.38. I also find comfort in the case of Morgan v Sim19 where it was held that: "The party seeking to recover compensation for damages must make out that the party against whom he complains was in the wrong, the burden ofp roof is clearly upon him, and he must show that the loss was attributed to the other. If at the end, he leaves the case in even scales and does not satisfy the Court that the loss was occasioned by the default of the other party, he can not succeed". Page 4Zof 48 5. 39. In this jurisdiction, I wholly adopt the Supreme Court guidance in the case of J .Z. Car Hire v Chala Scirrocco Enterprises20 that: ~'This Court has said it in a number of cases such as Zulu v Avondale Housing Project and Mhango v Ngulube and Others that it is for the party claiming damages to prove the damage, never mind the opponent's case". 5.40.To amplify the Mhango v Ngulube21 case referred to 1n Paragraph 5.39 above, the Supreme Court stated that: "It is, of course, for any party claiming a special loss to prove that loss and to do so wi.th evidence which makes it possible for the Court to determine the value of that loss with a fair amount of certainty. As a general rule therefore any shortcomings in the proof of a special loss should react against the claimant. The result is that the evidence presented to the Court was unsatisfactory, and in our opinion, the Learned Judge would have been entitled either to award a much smaller amount, if not a token amount in order to remind litigants that it is not part of the Judge's duty to establish for them what their loss is". (emphasis mine) 5.41. Though not binding on me, I am also persuaded by what my Learned brother Chenda, J. stated in the case of Snoopa Page 43 of 48 Metal Ores Trading Co. LLC PTY v Tassdemir Mining Company Limited and 2 Others22 that: "It is not in the province of this Court to speculate and fill in the blanks through assumptions where evidence is deficient. I am fortified in that regard by the decision of the Constitutional Court in Richwell Siamunene v Sialubalo Gi.ft23 ". 5.42. Given the state of the Plaintiffs evidence or lack of it on the claims for compensation in the sum of K450,000.00, and K35,000.00, I find no substratum that would entitle me to award these claims and damages. 5.43. The Defendant in its Counterclaim contends that the Plaint iff owes it the sum of K 105,350.9 3 based on what was indicated in Clause 10 of the Credit Agreement that the Bank Record will be the only evidence of the credit and sum due to the Defendant. The Plaintiff on his part maintains that having paid part of the loan amount, only the balance of K45,000.00. 5.44. From the Statement of Claim and the Defence filed by the Parties, the Defendant was at all material times a Financial Institution duly registered in Zambia pursuant to the Companies Act and the Banking and Financial Services Act No. 7 of 2017. The short title to the Act is couched as: "An Act to provide for a licencing system for the conduct of banking or financial business and provision of financial services; to provide for the incorporation of standards, principles and Page 44 of48 concepts of corporate governance in institutional systems and structures if banks and financial systems and structures of banks and financial institutions, to provide for the said business practices and consumer protection mechanisms, to provide for regulation and supervision of banking and (i.nancial services; to repeal and replace the Banking and Financial Service Act, 1994; and to provi.de for matter connected with or incidental to the foregoing". (emphasis mine) 5.45. The import of the above is that although the Plaintiff and Defendant signed a Credit Agreement which governed their relationship, the same has to be viewed in light of the Banking and Financial Services Act. 5.46. There is no dispute that the Plaintiff did not finish paying off the loan in breach of the Agreement and that is why his property was seized. The Defendant's contention is that while some of the seized goods were goods were sold, they did not cover the whole loan amount and they are the reason the money owed was reduced to Kl0S,350.93 and that is why the Defendant seeks to sell the remainder to recover the balance. 5.47. According to the Defendant the loan expired on 1st November, 2021, and by that time, the Plaintiff had only paid 6 months of the 12 contracted instalments after which the Defendant enforced its Security Agreement and proceeded to collect some of the Assets pledged. Page 45of48 5.48. As I see it, the loan by the Plaintiff became non performing. Section 110 (1) of the Banking and Financial Service Act provides that: "110 (1) A financial service provider shall recover the following amounts from a borrower on a non performing credit facility (a} the principal amount owing when the credit facility becomes non performing (b) any interest in arrears due in accordance with the credit facility agreement but not exceeding the principal amount owing when the loan becomes non performing; and (c) expenses incurred in the recovery of the amounts owing by the borrower (2) This section does not apply to interest awarded in terms of Court order or Judgment and occurring after making of the order or Judgment." (emphasis mine) 5.49. The import of the above provision is that it places a cap on the charging of interest on non-performing loans to the principal amount outstanding and any interest due at the time of default including the expenses incurred in the recovery of the amounts due. Applying this to the present case, it means that the Defendant's Counterclaim seeking to sell the remainder of the seized assets succeeds only to the extent of the amount recoverable when the Plaintiffs Page 46 of48 loan became non perfa rming in accordance with Section 2 of the Banking and Financial Services Act No. 7 of 2017. For avoidance of doubt, Section 2 of the Act defines a non performing loan as: "a loan in respect of which payment of principal or interest is in arrears for more than ninety days". 5.50. I am inclined to agree with the Plaintiff's submission that continuing to apply interest to the whole debt indefinitely would fall foul of the provisions of the Banking and Financial Services Act as aptly stated 1n the case of Chilola Intertrade and Others v Economic Empowerment Commission24 usefully cited by the Plaintiff. 6.0. CONCLUSION 6.1. Based on the evidence adduced by the Parties, I am not satisfied that the Plaintiff has proved his case on the balance of probabilities as by law required. Accordingly, the Plaintiffs claim for compensation and damages are dismissed in their entirety. 6.2. The Plaintiff breached the terms of the Credit Agreement and the Defendant's Counterclaim for payment of the outstanding balance due from the Plaintiff succeeds only to the extent of the amount recoverable when the Plaintiffs loan became non performing. 6.3. The Seizure effected by the Defendant pursuant to the Credit Agreement and Collateral Contract dated 20th Page 47 of 48 October, 2020 was lawful and validly executed pursuant to the said Agreements. 6.4. Accordingly, an Order 1s granted for the sell of the remaining assets seized by the Defendant from the Plaintiff to the extent of the amount recoverable when the Plaintiff's loan became non performing. 6.5. The Defendant is awarded damages for Breach of Contract by the Plaintiff. 6.6. The Matter is referred to the Deputy Registrar for assessment of damages and determination of the amount due to the Defendant from the Plaintiff at the time the Plaintiff's loan became non performing in accordance with Sections 2 and 110 of the Banking and Financial Services Act No. 7 of 2017. 6.7. Each Party to bear their own costs. DELIVERED AT LUSAKA THIS 5Te DAY OF NOVEMBER, 2025. I. M. MABBOLOBBOLO HIGH COURT JUDGE Page 48 of48