Omnia Fetilizer Zambia Limited v Mulbec Investments Limited and Anor (APPEAL NO. 25/2023) [2024] ZMCA 206 (17 April 2024)

·. IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 25/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 11 APR 2024 OMNIA FERTILIZER ZAMBIA LIMITED APPELLANT AND MULBEC INVESTMENTS LIMITED LACKSON MUNAKABAYO 1 ST RESPONDENT 2 ND RESPONDENT CORAM: MCHENGA DJP, NGULUBE AND CHEMBE, JJA On 27th March and 17th April, 2024 For the Appellant: Mrs. J. L Simukoko - Messrs Fraser and Associates For the Respondent: Mr H . M. Mulunda - H. M. Mulunda & Company JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. Leopold Walford (Z) Limited vs Unifreight (1985) ZR 203 Zambia Revenue Authority vs Jayesh Shah SCZ No. 2 of 2007 Yonnah Shimonde and Another vs Meridian BIAO Bank Limited (1997) ZR 49 Zambia Telecommunications Company vs L iuwa SCZ 16 of 2002 Barclays Bank Zambia Plc vs Zambia Union of Financial Institutions and Allied Wor kers (200 7) ZR 106 Legislation referred to: 1. 2 . The High Court Rules, Chapter 2 7 of the Laws of Zambia The Judgments Act, Chapter 81 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This is an appeal against a Ruling of the High Court delivered by the Honourable Lady Justice C. Lambe- Phiri on 5 October, 2022. By that Ruling, the Court found that the appellant could not claim post judgment costs and interest following the settlement of the Judgment debt as contained in the Consent Judgment that was entered into by the parties. 1.2 The court further found that costs were provided for in the consent judgment and that the demand for post judgment costs by the appellant was unfounded. The lower court was of the view that the respondent could not be held liable for post judgment costs which were not endorsed in the Consent Judgment. 2.0 BACKGROUND 2 . 1 The brief background to the appeal is that the parties entered into a consent judgment which was endorsed by the Court on 12 September, 2019. On 31 January, 2020, the respondents filed summons for stay of execution of the Consent Judgment, pending an application to review and vary the consent Judgment. -J2- 2.2 The appellant made attempts to recover the sums that were due under the Consent Judgment by way of Writ of Fieri Facias and subsequently, a Writ of Eligit was filed on 3 November, 2021 which was executed on 27 February, 2022. The respondent filed summons to stay the Writ of Eligit pending the application to set it aside for irregularity. On 28 January, 2022, a payment was made to the appellant to satisfy the Consent Judgment. 2.3 The learned Deputy Registrar delivered a Ruling on 28 March, 2022 and the respondents appealed against the Ruling on grounds that a wrong party who had no locus standi in the matter issued the Writ of Eligit. 2.4 The lower court considered the issues that were raised before the Learned Deputy Registrar. One of the issues that the court considered was whether the Learned Deputy Registrar was on firm ground in deciding to set aside the Writ of Eligit for irregularity. The court noted that the Writ of Eligit was issued at the instance of Omnia Small Scale Limited, who were not parties to the proceedings. 2.5 The court found that any proceedings taken out by a non-party are not legitimate and ought to be dismissed. The appellant called on equity to allow an amendment to the Writ of Eligit. The lower court considered the appeal and ruled that the learned Deputy -J3- Registrar was on firm gr ound in deciding to set aside the Wirt of Eligit. 2.6 The second issue th at the lower court considered was whether the appellant could claim post Judgment costs and interest as the Judgment debt as contained in the Consen t J udgment which had s ince been fully settled. 2. 7 The lower court was of the view that when parties execute a consent judgment, they are bound by it and that the appellant was demanding post Judgment costs after the issuance of the Writ of Eligit. The court dismissed the appellants' application as it was of the view that it was unfounded and then set aside the Writ of Eligit. The cou rt stated that the respondent could not be held accountable for post judgment costs which were not agreed upon in the Consent Judgment. The court accordingly dismissed the application for lack of merit. 3.0 THE APPEAL 3.1 Disenchanted with the Judgment th e appellant has appealed to this court fronting three grounds of appeal couched as follows- l. The court below erred both in law and fact when it ruled that a wrong party who had no locus standi in the matter issued the Writ of Eligit when it was simply a mis-description of the plaintiff which was in any event entitled to the fruits of the judgment and no prejudice was occasioned to the defendants. -J4- 2. The court below erred both in law and fact when it ruled that the respondent cannot be held liable for interest as it had not been specified in the Consent Judgment which the default statutory provisions of section 2 of the Judgment Act as read together within 0.36 rule 8 of the High Court Rules Cap 27 are explicitly clear in this regard. 3. That the court below erred both in law and fact when it failed to award the plaintiff costs by failing to look at the conduct of the respondent and ought to have exercised its discretion in favour of the plaintiff which had gone to several lengths to enforce its judgment which it had successfully recovered against the defendant. 4.0 APPELLANT'S CONTENTIONS 4.1 In arguing ground one, the appellant submitted that in the Writ of Eligit, the plaintiff was described as Omnia Small Scale Limited which was a purely typograph ical error and was merely a m is description of the p laintiff and did not prejudice t h e defendants in any way. Relian ce was placed on Order 18 Rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia, which provides for the amendment of proceedings at any stage. 4 .2 The case of Leopold Walford (Z) Limited vs Unifreight1 was referred to where the Supreme Court guid ed t h at b reach of a regulatory rule is curable and not fatal, depending u pon the nature of the breach. The appellant fu rther cited the case of -JS- Zambia Revenue Authority vs Jayesh Shah2 where the Supreme Court held that although Rules must be followed, the effect of a breach will not always be fatal if the rule is merely regulatory. It was submitted that the mis-description of the appellant in the lower court was not fatal and could have been cured by an amendment. 4 . 3 The second ground of appeal attacked the lower court for holding that the respondents cou ld be h eld liable for interest as the court was of the view that it had not been specified in the Consent Judgment. 4 . 4 Reference was made to section 2 of the Judgments Act wh ich reads- "Every Judgment, Order or decree of the High court where by any sum of money or any costs, charges or expenses is or are payable to any person shall carry interest as may be determined by the court which rate shall not exceed the current lending rate as determined by the Bank of Zambia from the time of entering such judgment order or decree until the same shall be satisfied. " 4.5 It was argued that the principal sum that was du e to the plaintiff under the Consen t Judgment and interest were merged to form a n ew p rincipal sum called the judgment debt. The case of Yonnah Shimonde and Another vs Meridian BIAO Bank Limited3 was cited where t h e Supreme Court guid ed that when a judgm ent of -JG- the court is given, any principle and interest merge into the Judgment debt. 4.6 Turning to ground three, it was argued that although the parties agreed on time lines in the Consent Judgment, the respondent defaulted on the said time lines and that this led to the appellant levying execution until full payment of the judgment sum a nd costs. 4 .7 The case of Zambia Telecommunications Company vs Liuwa4 was referred to where it was stated that- "Interest is paid for keeping the claimant out of his money." 4.8 It was argued that to deny the appellant costs would be unjust, in the circumstances. We were urged to allow the appeal for the afor estated reasons. 5.0 RESPONDENTS' CONTENTIONS 5.1 The respondents' Advocates filed their heads of argument on 23 February, 2023. Responding to ground one, it was submitted that Omnia Small scale Limited appearing on the Writ of Eligit and Omnia Fertilizer Zambia Limited, the appellant are two different and distinct persons at law. It was argued that the lower court cannot be faulted for having found that a wrong party, who had no locus standi had issued the Writ of Eligit. -J7- 5 .2 Accordin g to Counsel, it was not a mis-description or a typograp h ical error and th at the lower court was th erefore on firm ground when it found that Omnia Small Scale Mining Limited had no locus standi and went on to dismiss the Writ of Eligit. Counsel stated th at the irregularity is not curable and that Judgment was already entered by way of Consent. We were u rged to dismiss the first grou nd of appeal. 5.3 Responding to ground two, it was submitted that the lower court was on firm ground when it denied th e appellant's claim for interest becau se it was n ot included in the Consent Judgment and that the claim amounted to varying or amending the consent j u dgment. 5.4 It was submitted that the Judgment sum was paid to the appellant in instalments and that the full and final settlement of US$4,692 .83 was paid on 28 January, 2022. It was contended that the appellant was overpaid by US$576.69, which the respondents contend ought to be paid back to them. 5 .5 Th e case of Barclays Bank Zambia Plc vs Zambia Union of Financial Institutions and Allied Workers5 was referred to, where it was held that- "Execution can only be levied on amounts found due by the court i n a Judgment or agreed by the parties to an action and incorporated in a Consent Judgment." -J8- 5.6 It was submitted that the lower court was on firm ground when it dismissed the claim for interest and we were urged to dismiss the second ground of appeal for lack of merit. 5.7 Responding to ground three, it was submitted that the Consent Judgment indicated that the sum of US$2,100.00 would be paid by the respondents in costs, which costs were paid in the sum of ZMW30,000.00, the Kwacha equivalent of US$2, 100.00. According to Counsel, no post judgment costs were awarded to the appellant. We were urged to dismiss the third ground of appeal and dismiss the appeal in its entirety for lack of merit. 6 .0 CONSIDERATION OF THE MATTER AND DECISION OF THE COURT 6.1 We have considered the parties respective arguments and the Ruling being impugned. 6.2 The first ground of appeal alleges that the lower court erred in law and fact when it ruled that a wrong party issued the Writ of Eligit. A perusal of the record reveals that the Writ of Eligit was issued in the name of Omnia Small Claims Limited instead of the appellant herein, Omnia Fertilizer Zambia Limited. 6.3 The said Omnia Small Claims Limited was therefore a non- party and as such did not have locus standi to make any application, including the issuance of the Writ of Eligit. We are therefore of the view that the lower court was on firm ground when it set aside -J9- the Writ of Eligit for irregularity as it was issued by an entity which was not a party to the proceedings. 6.4 We are further of the view that the Writ of Eligit was issued irregularly and therefore, the first ground of appeal is accordingly dismissed for it lacks merit. 6.5 The second ground of appeal attacks the lower court for holding that the respondents cannot be held liable for interest which was not specified in the Consent Judgment. Our view is that the lower court was on firm ground because the parties executed a Consent Judgment and were accordingly bound by the terms of the said Consent Judgment. The record further shows that the respondents settled the judgment sum in full and also paid the appellant's Advocates costs in full , as per the terms of the Consent Judgment. We agree with the lower court that the issue of post judgment costs was not agreed upon by the parties in the Consent Judgment and therefore cannot be claimed in the absence of a court order. Accordingly ground two of the appeal is dismissed for lack of merit. 6.6 The third ground of appeal attacks the lower court for failing to award costs to the appellant and taking into consideration the conduct of the respondent, in the circumstances. The record from the lower court indicates that costs in the sum of US$2, 100 were paid by the respondents and were specifically included in the -JlO- Consent Judgment. The record further indicates that the appellant was not granted postjudgment costs by the lower court and as such, we are of the view that the third ground of appeal also fails for lack of merit. 6. 7 In the view that we have taken, the appeal lacks merit in its entirety and we accordingly dismiss it. Costs are awarded to the respondents, to be taxed in default of agreement. C. F. R. MCH DEPUTY JUDGE PRESIDENT P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -Jll-