Moses Himbala Hatembo (T/A Galaxy International) & Another v Union Bank Zambia Limited (In liquidation) (Appeal 8 of 2007) [2008] ZMSC 34 (17 July 2008)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) Appeal No. 08/2007 IN THE MATTER BETWEEN: MOSES HIMBALA HATEMBO (cid:9) (T/A Galaxy International) 1ST APPELLANT JAFFICO LIMITED (cid:9) 2ND APPELLANT AND UNION BANK ZAMBIA LIMITED (cid:9) (In liquidation) RESPONDENT Coram: (cid:9) Chirwa, Mumba, Silontha JJS, On 13th May 2008 and 17th July 2008 For the Appellants: (cid:9) Mr S. S Zulu, SC of Messrs Zulu & Company For the Respondent: (cid:9) Mr L. Mwanabo of Messrs Lewis Nathan JUDGMENT Mumba, JS, delivered the Judgment of the court. This is an appeal against the decision of the Deputy Registrar on 31st March 2006. Appellants borrowed monies from the respondent and provided property at Subdivision No. 58 of Farm 1751, as r -J2- collateral. The money borrowed was with interest at the respondent's rate and was supposed to be repaid by March 1995. After failure to pay back the money, the respondent sued to enforce the terms over the property held as collateral. On 29th April 1998, the respondent obtained judgment in the sum of K138,568,105:58 which was found to be • outstanding as at 1st February 1996. Interest was awarded at the respondent's rate from February 2006 to the date of judgment, 29th April 1998. Thereafter interest was awarded on whatever remained outstanding, at 6% per annum till final payment. In the same judgment, appellants were given up to 30th April 1998 to pay the outstanding balance with interest, in default, foreclosure was ordered on the property. It was also a • term of the judgment that if payment was not made on time, appellants were to deliver the said property to the respondent. Since that judgment, there was default of payment, the property was seized whereby rentals were collected by the respondent towards payment of the judgment debt. V -J3- On attempts by the appellants to try and get the respondent to reconcile the payments and to find out the balance outstanding, the respondent, now in liquidation, has been unable to deliver on the outstanding balances. Appellants instituted court process whereby the High Court ordered the parties to appear before the Deputy Registrar so that reconciliation on the outstanding balance could be done. The Ruling of the Deputy Registrar, in the main, was that documents to support each party's assertions in terms of payments made or balance due, were not produced. It was, therefore, not possible for the Deputy Registrar to conduct any reconciliation in order to arrive at the status of compliance with the judgment of the 29th September 1998. What the learned Deputy Registrar found unusual in the Ruling appealed against and, which must be pointed out, was that the respondent, before it went into liquidation, had the debt ascertained by the High Court judgment of 29th September 1998. After liquidation, a new figure of K357,238,058:54, was V -J4- shown by the liquidators as outstanding, yet no evidence was adduced to show how that figure was arrived at. The liquidators should have produced records on payments made by the appellants and ought to have produced the documents for reconciliation. (cid:9) The record shows that during the proceedings before the Deputy Registrar, a bank statement was produced by the appellants' witness, one, Alfred Sepiso Mate, showing that K97 million was what was outstanding as at 1st March 2001. There was also evidence that the respondent started collecting rentals from the property of the appellants since March 1991. The Deputy Registrar made no findings of fact on the evidence adduced, as according to him, the evidence was insufficient. This appeal is centered on the disputed outstanding balance in view of the rentals which are currently running towards the payment of the judgment debt. This is clearly a matter requiring reconciliation on the basis of the High Court judgment of the 29th September 1998. We, therefore, do not find it necessary to recast grounds of appeal nor indeed to -J5- discuss the submissions of the parties. What we believe is the way forward in concluding this matter is that each party must produce documents relied upon for its assertions, either on the payments made or on the balance due. We refer the reconciliation to the Deputy Registrar. The Deputy Registrar is hereby Ordered to seek assistance from the Zambia Institute of Chartered Accountants to nominate a firm of accountants/ auditors, to do the reconciliation following this judgment. Thereafter, the Deputy Registrar to draw up a formal Order. Professional fees of the accountants/ auditors to be borne by the parties equally. We allow the appeal and we order each party to bear its own costs. D. K. CHIRWA SUPREME COURT JUDGE (cid:9) (cid:9) JUDGE F. N. M. MUM BA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE