Kapambala Construction Ltd v Zambia State Insurance Ltd (Appeal 12 of 2000) [2000] ZMSC 101 (4 August 2000)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: APPEAL NO.12/2000 KAPAMBALA CONSTRUCTION LIMITED APPELLANT AND ZAMBIA STATE INSURANCE CORPORATION LIMITED RESPONDENT Coram: Chirwa, Muzyamba, Lewanika,JJS. On 6*1’ July and 4th August, 2000. For the Appellant: E. Mwansa, of E. B. M. Chambers. For the Respondent: M. Mundashi of Mulenga, Mundashi & Co. JUDGMENT Lewanika, JS. delivered the Judgment of the court. On 6th July, 2000 we dismissed this appeal with costs and said that we would give our reasons later and we now do so. The parties herein entered into a consent order whereby it was agreed that the appellant settle the sum of KI 0,789,050.00 with interest at 35% per annum from 1st May, 1998, within a period of 90 days commencing the 4th day of December, 1998, in default of which the respondent shall be at liberty th to issue a writ of possession. The consent order was filed in court on 8 January, 1999, and signed by the Judge on 21sl January, 1999. The appellant did not pay the money within the agreed time and the respondent obtained an order of possession and foreclosure of the equitable mortgage on 4th March, 1999, which was signed by the Judge on 9th March, 1999. -J2- The gist of the argument advanced by Counsel for the appellant is that at the time that the order of possession was granted, the 90 days within which the appellant was to pay the money had not run out. The rationale behind this argument is that since the consent order was signed by the Judge on 21st January, 1999, the 90 days was expiring on 21^ April, 1999. This argument is fallacious as it overlooks the fact that the parties had themselves agreed that the 90 days was to run from the 4th December, 1998. This appeal was doomed to failure from the onset as it was totally devoid of merit. D. K. CHIRWA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE