F and F Bearing Company LLC v Kabango Investment Limited (2021/HPC/265) [2022] ZMHC 114 (27 April 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN F AND F BEARING COMPANY LLC TIFF AND KABANGO INVESTMENT LIMITED DEFENDANT Before the Honourable Mr Justice K. Chenda on 27th April 2022 EX-TEMPORE RULING On Application for Payment in Instalments I have LISTENED ATTENTIVELY to the arguments and CLOSELY STUDIED the documents on record. After a CAREFUL CONSIDERATION, my decision is as follows. 1. THE LAW ON PAYMENT IN INSTALMENTS 1. 1 Order 36 Rule 9 of the High Court Rules Chapter 27 of the Laws of Zambia allows for this Court to order a judgment debt to be paid in instalments. 1.2 There is however no guidance in terms of considerations for grant of such relief. 1.3 The gap can be filled from provisions of Order 4 7 Rule 1 of the Rules of the Supreme Court, 1965 as contained in the White Book 1999 edition (the "RSC") which empower this Court to order payment of a judgment debt in instalments on grounds of inter alia inability to pay as evidenced by an affidavit of means. 1.4 Order 4 7 Rule 1 (3) of the RSC prescribes that such affidavit of means must show the nature and value of applicant's asset base and extent of their liabilities. 1. 5 In Zambia Export and Import Bank v Mkuyu Farms Limited and Others1 , the Supreme Court guided that: " . . . . . . . . a court may order that a judgment debt be satisfied by instalments upon sufficient cause being shown by the judgment debtor}}. 1.6 From the foregoing, the onus is upon a party (seeking an order to pay in instalments) to provide evidence of means substantiated by a full and frank disclosure of the nature and value of their assets and liabilities to justify a proposed payment plan. ANALYSIS, FINDINGS AND ORDERS 2.1 In the application before Court, the Defendant alleges that it entered into a contract to purchase cobalt from a third party entity which commodity was delivered but has not yet been paid for by the Defendant. 2.2 The Defendant further alleges that it has also entered into a second contract to resell the cobalt to another third party entity at a mark-up which it posits will be sufficient to pay the first entity and to settle the judgment debt owed to the Plaintiff. 2.3 The Defendant avers that it is only after the above transactions have concluded that it can be able to pay the judgment debt as a lump sum. 1 (1993/1994) Z. R 36 at page 40 R2 2 .4 However, perusal of the application documents does not show any disclosure by the Defendant of its income and its asset base, including liabilities (if any). Such would have been useful to assess the financial state of the Defendant. 2. 5 Thus it remains in the realm of speculation as to whether the Defendant is indeed incapable of liquidating the judgment debt as a lump sum as distinct from it being a mere preference. 2.6 I accordingly dismiss the application to pay the judgment debt in instalments but with no order as to costs. 2.7 Consequent to that, the order of stay of execution granted ex-parte on 13 th April 2022 is hereby discharged. Dated at Lusaka this __________ {:_j_!!_ --- day of---------~ ----- 2022 \ --- --- - ------ --- --- --- -- --- , -- -- - --- - -- -- - - K. CHENDA Judge of the High Court R3