NATIONAL PENSIONS AUTHORITY v PHIRI (2022/HP/0367) [2025] ZMHC 96 (10 October 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: NATIONAL PENSIONS AUTHORI AND STANLEY PHIRI 21/A Ambyence Enterprises 2022/HP/0367 RESPONDENT Before the Honourable Mrs. Justice R. Chibbabbuka on the 10th day of November, 2025 For the Applicant: Ms. A. Aongola, In- house Counsel For the Respondent: Mr. P. Chiteta, Messrs. A Chola Kafwabulula Legal Practitioners RULING Legislation referred to: The Rules of the Supreme Court of England, (White Book) 1999 Edition. 1.0 Introduction This ruling pertains to the applicant's application for leave to issue a writ of possession which was filed on 9 th January, 2023, by summons made pursuant to Order 45 Rule 3 of the Rules of the Supreme Court of England, J 9.99 edition. R1 2.0 The Applicant's Affidavit in Support The application is supported by an affidavit of even date as the summons, deposed to by one Butete Kaliye, the Head of Real Estates in the applicant institution. The deponent deposes that on 9 th March 2022, the applicant commenced this matter against the respondent herein seeking, among others, the following reliefs: 1. Payment of the sum of K 243, 855.15 being outstanding rental arrears owing to the plaintiff by the defendant as at March 2022 in respect of the premises otherwise known as Shop No. G47A Levy Business Park, Stand No. 27455 Cnr of Kabelenga and Church Roads, Lusaka, Zambia or indeed any other amounts that the Court will find as owing from the defendant. 2. Payment of the sum of K 1, 473.60 being outstanding utility charges owing to the plaintiff by the defendant in respect of the premises otherwise known as Shop No. G47A Levy Business Park, Stand No. 27455 Cnr of Kabelenga and Church Roads, Lusaka, Zambia as at March 2022 or indeed any other amounts that the court will find as owing from the defendant. 3. Payment of the sum of ZMW243, 855.15 being outstanding rental arrears owing to the Plaintiff by the Defendant as at March, 2022 in respect of the premises otherwise known as Shop No. G4 7 A Levy Business Park, Stand No. 27455 Cnr of Kabelenga and Church Roads, Lusaka, Zambia or indeed any other amounts that the Court will find as owing from the defendant. 4. Immediate vacant possession of Shop No. G47A Levy Business Park, Stand No. 27455 Cr of Kabelenga and Church Roads, Lusaka. 5. Interest on the amount outstanding. That the Court record will show that on 6 th June 2022, this Court entered Judgment against the defendant wherein the defendant was directed to pay outstanding rentals arrears by 31 st July, 2022. Despite the plaintiff demanding R2 that the defendant heed to the court's judgment, the defendant has unjustifiably failed, refused or deliberately neglected to liquidate the judgment sum and yield vacant possession of the demised premises. In view of the same, the continued refusal to pay the judgment sum and yield vacant possession by the defendant has a dire consequence of affecting the viability of the plaintiff much to the disadvantage of the members of the public who depend on the National Pension Scheme. 2.1 The Applicant's Skeleton Arguments . I I In support of the application, the applicant filed skeleton arguments wherein counsel ref erred the court to the provisions of Order 45 Rule 3 of the Rules of the Supreme Court of England, 1999, Edition, which provides that: "(1) Subject to the provisions of these rules, a judgment or order for the giving of possession of land may be enforced by one or more of the following means, that is to say - (a) writ of possession; (b) in a case in which rule 5 applies, an order of committal; (c) in such a case, writ of sequestration. (2) A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without the leave of the Court except where the judgment or order was given or made in a mortgage action to which Order 88 applies. (3) Such leave shall not be granted unless it is shown- (a) that every person in actual possession of the whole or any part of the land has received such notice of the proceedings as R3 appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled; and (b) if the operation of the judgment or order is suspended by subsection (2) of section 16 of the Landlord and Tenant Act, 1954, that the Plaintiff has not received notice in writing from the tenant that he desires that the provisions of paragraphs (a) and (b) of that subsection shall have effect." Counsel argued that this court has the power as per the cited law to grant leave to the plaintiff to issue a writ of possession against the defendant. Counsel prayed that the order sought be granted with costs. 3.0 The Respondent's Affidavit in Oppositio11 In opposing the application, the respondent filed an affidavit wherein he admitted to the averments that this matter was commenced against him, and a judgment subsequently obtained in favour of the applicant. He deposes however that rental payments were affected by an act of God being COVID 19 which ran from 2020 to early 2022. That his assertion that COVID 19 affected him can be attested to by the applicant's statements of account. That the applicant was, at the time of his affidavit, accepting the payment of the rental arrears which were being promptly made. The business is incapable of settling the rental arrears without the premises being operated by it as this is the only income generating business available to him. This is a proper case for an order to settle rent arrears in instalments and for refusal of leave for an order for vacant possession. R4 4.0 The Hearing 4.1 In support of the application, counsel for the applicant relied on the affidavit and skeleton arguments filed in support of the application. Counsel went on to argue that the applicant obtained a judgment against the respondent herein which it should not be denied immediate enjoyment of. That the affidavit in opposition merely bears witness to the applicant's position that the respondent has failed to adhere to the terms of the consent judgmen t. Counsel p rayed for the grant of the order sought with costs. 4.2 In opposition, cou nsel for the respondent relied on the affidavit filed in opposition to the affidavit in support of the application, which he restated. He prayed for th e dismissal of the application and that the defendant be given a second chance to settle the judgment. 4 .3 In reply, counsel for the applicant argued that the respondent is always falling behind on the payments, and that his business might not be a going concern as he might have the court believe. 5.0 The Decision of the Court I am indebted to counsel for their arguments, which I have clearly considered. It is trite law that a writ of possession is a court order by which a judgment of the court for recovery of land or property may be enforced. Pursuant to Order 45 Rule 3 (a) of th e Rules of the Supreme Cou rt of England, 1999 edition, which has been reproduced above, it is a precondition to granting leave that notice to the person in possession of the property, in this case the respondent, is given of the proceedings to enable him to apply to the court for any relief to which he may be entitled. In casu while the applicant's application was filed ex-parte, he had notice of the application as he was served with the notice of hearing of the RS ., application on 21 st April; 2023, and even filed an opposing affidavit and appeared to the hearing of the application . As to whether the applicant is entitled to an order of leave to issue a writ of possession, I have examined the consent judgment in this matter in which the parties agreed under clause 7 that on default, the applicant shall be at liberty to possession of the dewiscd premises. The defendant has conceded to defaulting in paying off his debt in accordance with the consent judgment and has attributed his default to the covid pandemic. While this may have been valid at the time, the defendant has had ample time from the date of this application to the date of this ruling to liquidate the debt owed to the applicant. The applicant is entitled to possession of its premises and hence leave to issue a writ of possession is accordingly granted. Costs of this application are awarded to the applicant to be taxed in default of agreement. Leave to appeal is gra.11ted. R6