ABSA Bank Zambia Plc v Liamba Mwabafu Libakeni (2024/HPC/0338) (14 June 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2024/HPC/0338 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: ORDER 30 RULE 14 OF THE HIGH COURT RULES CAP 27 OF THE LAWS OF ZAMBIA AND ORDER 88 OF THE SUPREME COVRT RULES 1999 EDITION AND IN THE MATTER OF: THE PROPERTY COMPRISED IN A LEGAL MORTGAGE RELATING TO SUBDIVISION NO. 40/20 OF STAND 4195, LUSAKA AND IN THE MATTER OF: FORECLOSURE POSSESSION AND SALE OF THE MORTGAGED PROPERTY BETWEEN: • <CA y ABSA BANK ZAMBIA PLC PLICANT JUN 2024 '1 AND c,~ .. ru.-..,. r y LIAMBA MWABAFU LIBAKENI 7 \. RESPONDENT Before: The Hon. Mr. Justice L. Mwanabo on 14th day ·of June, 2024 For the Plaintiff: Mr. C. Malambo of Messrs. Malambo & Co For the Defendant: N/ A • EX TEMPORE JUDGMENT CASES REFERRED TO: 1. Reeves Malambo v Patco Agro Industries Limited (2007) ZR 177 2. Galaunia Farms Limited V National Miling Company Limited and Another (2004) ZR 1 3. Mohammed Vs Attorney General ( 1982) ZR 49 4. Zulu V Avondale Housing Project Limited ( 1982) ZR 172 5. S. Brian Musonda (Receiver of First Merchant Bank Zambia Limited V Hyper Food Products Limited and Others SCZ. Judgment No. 16 of LEGISLATION REFERRED TO: 1. Order 30 Rule 14 of The High Court Rules Cap 27 of The Laws of Zambia 2. Order 88 of The Rules of The Supreme Court of England, 1999 Edition 1. The Applicant herein commenced this action under Order 30 Rule 14 of the High Court Rules1 (HCR) and 88 of The Rules of The Supreme Court2 • • 2. Order 30 Rule 14 provides as follows: "any mortgage or mortgage, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclosure or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons returnable in the chambers of a Judge for such relief of the nature or kind following as may by the summons be specified, and as the • circumstances of the case may require; that is to say - Payment of moneys secured by the mortgage or charge; Sale; Foreclosure; Delivery of possession (whether before or after foreclosure) to the mortgage or person entitled to the charge by the mortgagee or person having the property subject to the charge or by any other person in, or alleged to be in possession of the property; Redemption; Reconveyance; 3. The contents of Order 88 RSC are qu·te similar to those of Order 30 Rule 14 HCR. The affidavit in support of the action herein exhibited the mortgage deed, loan statement and a letter of demand. The mortgage deed bears an endorsement from the Ministry of Lands as evidence that it was duly registered. According to the affidavit in support of the originating summons, the Applicant availed a loan facility to the Respondent in the total sum of ZMW210,000.00 (re based) sometime in 2010. The loan was secured by a 1st legal mortgage over Subdivision No. 40/20 of Stand 4195. • 4. There is clear evidence that the Respondent defaulted in repaying the loan as shown by the demand letter and the loan statement with an outstanding amount of ZMW410,312.81. Demand for payment of the loan was made by letter dated 5th April, 2024 but no payment was made to meet the demands hence the action herein. 5. The arguments in support of the action have shown that this is indeed a mortgage action and reference was made to Order 88 RSC2 and Order 30 Rule 14 HCR1 as the correct provision for bringing the action herein before Court. My attention was drawn to the case of Reeves Malambo v Patco Agro Industries Limited1 which is to the effect that a breach of contract occasioned by failure to repay a debt according to agreed instalments entitles the aggrieved lender to call in the debt in full and sale the property. The amount claimed is composed of the principal amount in the sum of ZMW205,803.87 and interest in the sum of ZMW204,508.95 6. According to the evidence adduced herein, I find that the Applicant has proved its claim against the Respondent as the same is not even opposed. I have taken into consideration the guidance of the Supreme Court in the cases of Galaunia Farms Limited v National Miling Company Limited and Another2, Mohammed vs Attorney General3 and Zulu v Avondale Housing Project Limited4 to the effect that: "The burden to prove any allegation is always on the one who alleges. ... " "An unqualified proposition that a Plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A Plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to Judgment. I would not accept a proposition that even if a Plaintiffs case has collapsed of its inanition or some reason or other Judgment should nevertheless be given to him on the ground that a defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need a defence." 7. I accordingly enter judgment in favour of the Applicant against the Respondent for the sum of ZMW410,312.81 as shown by the loan statement. The said Judgment sum shall attract interest at the agreed rate of 8% per annum from the date of action to date of judgment, thereafter, at the average current bank lending rate as determined by the Bank of Zambia till date of full payment. 8. I further order that the Respondent should pay to the Applicant the Judgment sum plus interest within 60 days from the date hereof. In the event of default, the Applicant shall be at liberty to pursue and enforce all the remedies claimed on the originating summons over Subdivision No. 40/20 of Stand 4195, Lusaka as guided in the case of S. Brian Musonda (Receiver of First Merchant Bank Zambia Limited V Hyper Food Products Limited and Others5 9. Costs are awarded to the Applicant and in default of agreement to be taxed. r:o lr;G.L, r """'e rc'.T• C 'lq/ ./cI, v . < :t ... LASTONE MWANABO HIGH COURT JUDGE