Barclays Bank of Zambia Limited v Ian Peter Smith (Appeal No. 11/90) [1990] ZMSC 20 (4 September 1990)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 11/90 HOLDEN AT LUSAKA (Civil Jurisdiction) 6AACLAYS uANK Of ZAMUIA LIMITED Appellant and IM PETER SH ITH Respondent CORAM: Gardner> AJ .s.. Chail a and Lawrence. JJ. S. 1 4th Sepiember, 1990. Mr. M. Lwatula of Ellis and Co., appeared for the appellant There WdS no appearance for the respondent J J u G il t:. :I T Gardner. AJ. S •• delivered the jugment of the court. Tllis is an c.1ppe<1l against an order deprivin~1 the appellant of costs and ordering tI1e appellant to pay ti1e costs resul Un~ from in1i}roµer issue of a writ of f ieri f acias by t:12 respondent. The facts of this case are that the respondent issued a writ claiming payment from the appellant of money due under a building contract. The writ was issued against the appellant in the na;;ie of Barclays Bank Zambia Limited and was addressed and served upon the appe 11 ant I s branch in U vi ngstone, wr1ereas the head office of the appellant whose, full na1ne is 3arclays Bank of Zambia Limited is in Lusaka. The appellant did not respond to the incorrectly entitled and served writ and the respondent issued a writ of fieri facias claiming the runount clain~d in the writ and in fact incorrectly stated that amount in the writ of execution. As a consequence execution was levied against the ••• /J2 ••• .. JZ - appellant for the Sllll of K164.023.35 and costs of K90,258•25. Application was made to the district registrar to set aside the writ and the judgment and.when this application was refused, an appeal was made to the High Court. After hearing the appeal the learned judge found that the writ. which bore an incorrect name and which was wrongly served, resulted in an incorrect default judgment. He therefore set aside the judgment the orders as to costs. Hm~ever, in of the court and set aside tJis judgment tie found that the respondent ~1as entitled to the costs thrown away. The appellant now appeals to this court against that order relating to costs and also applies for a specific order that the amount paid undefnudgment should be repaid to the appellant. He are satisfied that the appellant, having been successful in his arguments before the High Court judge albeit they were technical, was entitled to repayment of everything that had been paid under the judgment that had been ordered to be set a~ide and in no way could it be held responsible for any costs. Having considered the judgment of the learned High Court judge we are of the view that he must have assumed that, by setting aside the judgment in default and the orders ~s to costs, the amount of the default judgment would automatically be refunded to the appellant, and, indeed, as a result of the setting aside of the default judgment that is what should have happened. We are informed that in fact the amount of the default judgment has not been paid and we must therefore remedy that situation. The appeal is allowed, the order as to costs made by the learned trial judge is set aside andj in its place, we make th~ follo'.-Jing order. The default judgment is set asicie, the defective writ of fieri facia.s ii set aside and we order tllat the amount paid to the i~espondcrnt in respect of the j udgr.ient debt, the costs on that debt and tne bailiffs fees be returned to the appellant within three months of the date of this judgment. ~e further order tl,at the respondent shall 11ave leave to amend the writ to include the correct name and address of the appellant, and we order that this writ be served upon the appellant's advocates in accordance with the undertaking to accept service given in this court. All costs incurred by the appellant in the High Court and .•• /J3 ••• - J3 - in this court will be paid by the respondent to the appellant. ···················· B. r. Gardner ACTING SUPREME COURT JUDGE ·····~·············· M. S. Chail1 SUPREME COURT JUDGE .•...•.•.....•....•. A. R. Lawrence SUPREME COURT JUDGE