Genesis Finance Limited v Comfort Select Investment Limited and Anohter (HPC 323 of 2013) [2016] ZMHC 97 (12 April 2016)

IN THE HIGH COURT FOR ZAMBIA 20I3/HPC/0323 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) Order 30 Rule 14 of the High Court Rules Chapter 27 of the Laws of Zambia and Order 88 Rule 1 of the Rules of the Supreme Court of En ."(~~., • - ,.<;:.'<,;,:::.' In the matter of: BETWEEN: ----- GENESIS FINANCE LIMITED AND ~.•. Y • .,-'1,::.0. ••• lA.,81A c...••..:" ~ .,(~'i..• \O\C\;....~ J.... ••••• p.?R 1\i\u .~ ,? CO/. M<RC',~LR EGI'W'! ~. ';Th Uo;.:-" RO. Box500b1.\) COMFORT SELECT INVESTMENT LIMITED NEVES LOIVER LUAMBULA IST RESPONDENT 2ND RESPONDENT BEFORE HON. MADAM JUSTICE PRISCA MATIMBA NYAMBE, SC AT LUSAKA IN CHAMBERS For the Applicant: For the I st Respondent: For the 2nd Respondent: Mrs. D Findlay Assisted by Ms. M Kabimba Messrs D Findlay& Associates No appearance Mr. M L Hamachila Ivan Mulenga & Company RULING Legislation referred to: 1. Order III Rule 2 of the High Court Act Cap 27 of the Laws of Zambia 2. Order 30 Rule 14 of the High Court Rules Chapter 27 of the Laws of Zambia 3. Order 88 Rule 1 of the Rules of the Supreme Court of England 1999 Edition :. This is the 2nd Respondent's application to set aside sale for being unfair, and inconceivable and manifestly unjust Pursuant to Order III Rule 2 of the High Court Act Cap 27 of the Laws of Zambia. The application is supported by an affidavit and affidavit in reply together with skeleton arguments. The application was opposed and the Applicant filed an affidavit in support dated 5th June 2015 together with skeleton arguments and lists of authorities. The history of this case is that the action was commenced on 13th June 2013 before Judge Wood. On 13th September 2013 Judge Wood granted the Applicant an Order for Foreclosure, Possession and Sale of the Mortgaged Property. Writ of possession was issued on nnd January 2014. The 2nd Respondent then made an application to Stay the Writ of Possession, Stay the sale and regain possession. This application was heard by Judge Wood on 4th February 2014. Wood dismissed the application with costs in a ruling dated 10th March 2014. Judge In his ruling Judge Wood found that: "The explanation being advanced (by the Z'd Respondent) in the affidavit in reply can only be describedas the work of a very creative mind and a pack of lies in the light of the overwhelming documentary evidence which shows that he (the r Respondent) signed all coercion". He accordingly dismissed the application with costs. the documents freely and without R2 .. The above facts were not challenged by the 2nd Respondent in the hearing before this Court. Judge Wood was on firm legal grounds in dismissing the aforesaid application. Mrs. Finlay also submitted that the subject property has been sold, and an account rendered showing that there is still an amount owing to the Applicant. In view of this fact there is nothing to stay as the subject property has already been sold. With regard to the affIdavit of one Neves Oliver Luambula flIed in support of the application to Stay Execution of Judgment dated 10th September 2013 on firstly the 2nd dated 20th August 2014, account of another Judgment Respondent has already made an application to Stay Execution of the Judgment dated 10th September 2013, which application was heard and determined in a Ruling dated 10th March 2014. The application was dismissed with costs. No appeal has been lodged against the Ruling dated 10th March 2014. The record will show that neither the Judgment dated 10th September 2013 granting Possession and Foreclosure and Sale to the Applicant, nor the Ruling dated 10th March 2014, dismissing the application for Stay have either been set aside or appealed against. Therefore both the Judgment and Ruling are valid and binding on the Respondents. R3 '. Until either of the Court orders have been set aside or stayed, the Applicant is entitled to enjoy the fruits of its Judgment by way of enforcement, execution and sale of the Mortgaged Property. Moreover as stated above events have overtaken the 2nd Respondent's application aforesaid as the Applicant following the Court order of 10 th September 2013, and the ruling dated loth March 2014 the Applicant has already disposed off the subject property with the registration and transfer having been effected in accordance with laid down legal procedures. On the basis of the foregoing the Application is dismissed with costs to the Applicant, to be taxed in default of agreement. Dated this r.~~~.dayof r;t.f~~..~ •....•...•....••..••...•....••...• Prisca M. Nyambe, SC JUDGE R4