Jockim Sakala v Alice Banda (2019/HP/A027) [2024] ZMHC 163 (25 September 2024)

IN THE HIGH COURT OF ZAMBI AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JOCKIM SAKALA AND ALICE BANDA R1 IC OF z COURT OF zqA1841 PRINCIPAL 2 5 ST. P REGISTRY - 2 -- - 130X 50067, LOS?"11‘ 2019/HP/A027 APPELLANT RESPONDENT BEFORE HON MRS JUSTICE S KAUNDA NEWA THIS 25th DAY OF SEPTEMBER, 2024 For the Appellant For the Respondent : Mr. J. K Matende, Legal Aid Counsel, LAB : In Person RULING LEGISLATION REFERRED TO: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England, 1999 Edition 1. INTRODUCTION 1.1 On 17th July, 2024, the Respondent, Alice Banda made an application for an Order to vest property, pursuant to Section 14 of the High Court Act, Chapter 27 of the Laws of Zambia. The application was supported by an affidavit and a List of Authorities and Skeleton Arguments. 1.2 The Appellant, Jockim Sakala filed an affidavit in opposition to the application on 6th August, 2024. R2 2. BACKGROUND 2.1 Alice Banda sued Jockim Sakala in the Local Court for divorce. The Local Court on divorcing the parties, directed that all the properties that the parties had acquired be shared equally, and that Jockim Sakala compensates Alice Banda the sum of Ten Thousand Kwacha (K10, 000.00), and pays her Six Thousand Kwacha (K6, 000.00) as her share of the proceeds of the vehicle that Jockim Sakala sold. 2.2 Alice Banda was also given custody of the children of the family. 2.3 Dissatisfied, with the decision of the Local Court, Jockim Sakala exercised his right of appeal to the Subordinate Court. The Subordinate Court after hearing the matter de novo, decided as follows: i. That the house in Kamanga be given to Jockim Sakala. ii. That the house in Kanyama be given to Alice Banda. iii. All the vehicles be given to Jockim Sakala. iv. Alice Banda to have custody of the children with access to Jockim Sakala. v. Alice Banda to be maintained at K400.00 per month for a period of Twelve (12) months. vi. All the children to be maintained at K500.00 per month subject to review yearly. vii. Jockim Sakala to pay the school fees and medical bills for the children and provide clothing for them every Three (3) months. R3 2.4 Jockim Sakala, was again dissatisfied, and he appealed to this Court. On record is an Order which was issued by the Subordinate Court on 11th July, 2019 discharging the appeal, as Jockim Sakala had failed to prosecute the appeal over a year after he paid security for costs. 2.5 The High Court which had conduct of the matter then, on 14th August, 2019, granted an Order staying execution of the Judgment of the Subordinate Court pending determination of the appeal. In an Order dated 11th February, 2021, I stated that there was no appeal before this Court, the Subordinate Court having discharged the appeal on 11th July, 2019. 2.6 I further noted that the High Court granted an Order to stay execution of the Judgment when the appeal had been discharged. Therefore, the stay of execution had no force, there being no appeal before this Court. 2.7 Thereafter, Alice Banda instituted contempt proceedings against Jockim Sakala, and on hearing the motion, in a Judgment which was delivered on 2023, I found that Jockim Sakala had not given the house, number 117/17 Kanyama to Alice Banda, and he was in contempt of Court, as he had disobeyed the Order of the Court. 2.8 I further found Jockim Sakala in contempt of Court as he had not paid Alice Banda the maintenance of Four Hundred Kwacha (K400.00) per month, for Twelve (12) months. With regard to the children of the family, I found that Jockim Sakala had not disobeyed the Order for maintenance of the children as the said children were in his custody. R4 2.9 I stated that it therefore followed, that Jockim Sakala had not disobeyed the rest of the Orders as they related to the children. 2.10 I sentenced Jockim Sakala to simple imprisonment for a period of Nine (9) months, which sentence was suspended, on the condition that he would within Thirty (30) days from the date of Judgment, hand over the house No 117/ 17 Kanyama to Alice Banda. 2.11 This was in Order to allow for arrangements to be made to relocate the children, should they not wish to live her, in view of the evidence that was on record. I also directed that this would be done by both Jockim Sakala and Alice Banda in the presence of their advocates, during the said period, verifying the keys to the house, and appearing in Court on 5th September, 2023 at 08:20 hours. 2.12 On that date, in the presence of the Court, Alice Banda was to be handed over the keys to house No 117/ 17 Kanyama, as well as the documents for the said house. In default of compliance, the suspended sentence would be invoked, and Jockim Sakala would be liable to be committed to prison for the said period of Nine (9) months. 2.13 In respect of the maintenance for Alice Banda at Four Hundred Kwacha (K400.00) for a period of Twelve (12) months, which amount totaled Four Thousand Eight Hundred Kwacha (K4, 800.00), Jockim Sakala was directed to pay the same into Court by 4th September, 2023. In R6 RESPONSE BY JOCKIM SAKALA 3.2 Reliance was placed on the affidavit in opposition to the application. REPLY BY COUNSEL FOR ALICE BANDA 3.3 In reply, Counsel stated that there was nothing on the record to show that the property was mortgaged, and that in fact the alleged Mortgagee had not even been named. Thus, the Order should be granted. 4. DECISION OF THIS COURT 4.1 I have considered the application. It was made pursuant to Section 14 of the High Court Act, Chapter 27 of the Laws of Zambia which provides that: "14. Where any person neglects or refuses to comply with a Judgment or Order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the Court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the Court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it." R8 4.5 The argument was that the motion was not filed within Fourteen (14) days of the grant of leave. AFFIDAVIT IN OPPOSITION 4.6 Jockim Sakala in the affidavit in opposition deposed that the property in issue was pledged as security for a debt, and the Creditor is still keeping the documents for the property. He also deposed that he had not yet paid off the loan. It was also averred that Jockim Sakala surrendered the keys to the house to Alice Banda. DECISION 4.7 I did in my Judgment after the Notice of Motion for contempt proceedings was heard, note that there was no evidence that the property House No 117/17 Kanyama was pledged as security for any loan. I also stated that the Judgment of the Subordinate Court awarded that house to Alice Banda and there was no appeal against that Order. 4.8 Black's Law Dictionary by Bryan A. Garner, 9th Edition, Thomas Reuters, 2009, at page 1699 defines a vesting Order as: "A Court Order passing legal title in lieu of a legal conveyance." 5. CONCLUSION 5.1 There being a Judgment of the Subordinate Court, which granted House No 117/17 Kanyama to Alice Banda and there being no evidence that the said house is encumbered as it was pledged as security for a loan by Jockim Sakala as alleged, and Jockim Sakala having failed to vest the said R9 property in Alice Banda, I grant the application for vesting Order. 5.2 The Registrar of the High Court shall do all acts and execute all documents to vest the property in Alice Banda's name from Jockim Sakala. Each party shall bear their own costs and leave to appeal is granted. DATED AT LUSAKA THE 25th DAY OF SEPTEMBER, 2024 S. KAUNDA NEWA HIGH COURT JUDGE P47.a ens i li/CH r 4: ! i 4 4,.. 4.....„ , s ---„,, C'e),.i.z.„.. 0 % - "Ilet •*1 son_ " . J ...- ''.. -up. ' 4,1,1 ,,,,... • A -,,,,,!C•ii