Eastways Investments Limited v Lestart Enterprises Limited and Another (HP 847 of 2015) [2015] ZMHC 141 (9 October 2015)

. , • IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2015/HP/0847 ~ ~ BETWEEN: EASTWAYSINVESTMENTS LIMITED AND LESTART ENTERPRISES LIMITED JUDGMENT DEBTOR MOTA ENGIL ZAMBIA INTENDED GARNISHEE Before the Honourable Mrs. Justice M. C. Kombe on 9th day of October 2015 in Chambers. For the Judgment Creditor Mr. R. Ngulube from Messrs Tembo Ngulube and Associates For the Judgment Debtor For the Garnishee N/A N/A RULING Case referred to: 1. Breza Engineering Limited v G M International Limited and Konkola Copper Mines PLC (2010)1 Z. R 46. Other material referred to: 1. The Supreme Court Practice 1999 Edition (White Book). . ' • This is a Ruling on the judgmen~ creditor's ex parte application to issue Garnishee Order ::-Jisifor the attachoent of the fur_ds due and or accruing from the Garnisr_ee to the judgment debtor. The application was supported by an affidavit deposed to by FRED MWALE, the Manager for operations in the employment service of the judgment creditor. He deposed that on 13th August, 2015, the judgment creditor obtained a judgment a,sainst the judgment debtor in the sum of KIOO, 100.00; that on 8th September, 2015, the judgment creditor issued a Writ of Pieri Facias against the judgment debtor which was re~urned nulla bona. A copy of the Sheriffs Debit and Advice Note was produced and marked as 'FMl'. It was furtr.er deposed that it was clear that the judgment debtor did not have assets known to the judgment creditor that could be seized to recover the . Judgment debt; that however, he knew as a matter of fact that the judgment debtor had supplied various road construction equipment to the Garnishee upon whicl: it was paid hire charges/rentals at the end of the month; that the basis of th:s infcrmation was the :act that the Judgment debt herein arose because the judgment debtor failed to remit the funds to the judgment creditor which had been collected from the Garnishee. He produced a copy of the unsigned contract by the judgment debtor which gave rise to the Judgment debt herein. The same was marked as 'FM2'. At the hearing learned counsel fcr the judgmer_t creditor Mr. R. Ngulube informed tl:e cou:-t that he was rely::ngon the affidavit in support filed on 22nd September, 2015. He submitted that the Judgment debt arose from the failure by the judgment debtor to remit funds that were collected from the Garnishee. Further, that as the affidavit showed, the judgment debtor had a business relationship with be Garnishee where monies for hire of construction equipment were paid every month. That those were the funds that the R2 judgment creditor intended to attach until such a time when the Garnishee Order was made absolute. In response to a c,uestion from the c.:)Urton the basis of the judgment creditor's contention that there was a business relationship between the Garnishee and the judgme:1t dettor. Mr. Ngulube submitted that paragraph 7 of the affidavit showed that the j'.ldgment debtor and the Garnishee had a business relationship. The court was also referred to clause 6 of exhibit marked 'FM2'. Counsel submitted that clause 6 showed that the equipment that the judgment debtor was hiring f:-om the judgrr,ent creditor was being hired out to the Garnishee. In response to a question from the court that the purported contract marked "FM2' between tI',ejudgment creditor and the judgment debtor was not signed, counsel submitted tI'.at the contract was signed by one party and not the other and the fact that there was a judg:nent meant that the parties relied on the provisions of the contracts. He submitted that this is what led to the cause of action. Mr. Ngulube further submi:ted that what he was asking for was an interim order and the other side woLid be given an opportunity to be heard. Those were the subrr-issions which I have carefully considered. By this application, I have been invited to grant a Garnishee Order Nisi for the attachment of fur.ds due and/ or accruing from the Garnishee to the judgment :Iebtor. Oreer 49 of the Rules of the Supreme Court (White Book) gives the -court the discretion to order the garnishee to show cause and to attach the :Iebt due ar:d accruing to the judgment debtor. Paragraph 49/2/3 of the White Book also provides: 'In every case, grounds of his belief must be stated.' the sources of the deponent's information or the R3 Further, the SUFreme Court in the case of Breza Engineering Limited v G M International Limited and Konko [a Copper Mines PLC held that: creditor 'In order tv obtain a Garnishee Order Nisi, it is not enough for the the judgment to merely inform the Court judgment debtor is awaiting payment from the garnishee. The test whether a debt there must be a debt of which the judgment debtor can enforce payment if he desires to. ' is attachable is that that As is evident from the above cited case, the test to be met before a court can grant a Garnishee Order Nisi attaching a debt is very clear. The judgment ::reditor mt:st show :hat there is a :lebt due from the garnishee on which the judgment debtor can enforce payment. I have considered the evidence addt:ced by the judgment creditor in support of this application. The source of the information and the belief that there is a business re:ationship between the jt:dgment debtor and the Garnishee and that :here is a d~bt dt:e from the Garnishee to the judgment debtor is the unsigned contract marked 'FM2' purportedly entered into between the judgment creditor and the judgment :lebtor. The judgment credi:or contends that the said contract gave rise to :he cause of acti:m herein. Clause 1 of the said contract makes reference to a running contract between :he judgment deb:or and the Garnishee. It reads as follows: 'The Hiree (judgment debtor) has a running Contract of supplying road equipment to MOTAEl"'GILZAMBIA(Garnishee). ' :'Iowever, this contract between the judgment debtor and the Garnishee has not been adduced. Further, no other evidence by way of communication or correspondence between these parties has been adduced to enable this court make an inference or ascertain that there is a legal relationship between the judgment ceditor and the Garnish~e and that there is a debt due from the Garnishee en which the judgment debtor can enforce payment. R4 I am of the considered view that for the purposes of this application, it is not enough for the j".1dgment creditor to merely rely on the unsigned contract :narked as 'FM2' as the source or ground of it~ belief that there exists a "::>usinessrelationship between the judgment debtor and the Garnishee and that there is a debt due to the judgment debtor from the Garnishee. I say so because in the absence of other evidence showing the intention of the parties, :he unsigned contract does not meet the test as elucidated by the Supreme Court in the Breza Engineering Limited case. In view of the foregoing, I find that a prima facie case has not been established by the judgment creditor that there is in existence a business relationship between the judgmer-t debtor and the Garnishee and that there is a debt due to the judgment debtor capable of being enforced. The net result of my finding is that the judgment creditor has failed to meet the test for the attachment of debt. Accordingly, the application for the grant of a Garnishee Order Nisi is dismissed as it lacks merit. Delivered at Lusaka this 9th Day of October, 2015 M.e KOMBE JUDGE R5