African Banking Corporation Zambia Limited T/A Atlas Mara Zambia and Anor v Dimitrios Monokandilos and Ors (2019/HP/1997) [2024] ZMHC 144 (15 February 2024)

SM3 fN THE IllGII COURT FOR ZAi\ffiIA AT THE PRINClP AL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdicrion) · 1: FEa 2024 2019/HP/1997 . . I I BETWEEN AFRICAN BANKING CORPORA110 LIMITED (TI a as Atlas Mara Zambia) 1 bf PLAINTIFF FINA CE BANK ZAMBIA LIMITED 2nd PLAINTIFF AND DIMITRIOS MONOKANDILOS FILA ORA KOURI MAMBWE Sl WlLA & LlSL.\1. BA ADVOCATES (Sued and Trading as a Finu) l,1 DEFENDANT znd DEFENDANT yd DEFE 1DANT Before tlte .llonourab!e Lady Justice C. Lombe Phiri in Chambers For the P1 and .zui Plaintiffs: Mr K Kcn,11ana - Simeza Sangwa Associates For the fl' and z,,,. Defendants: . M.r M J,isimba - Messrs Mambwe St'wila and Lisimba Advocates. For the 3"1 Defendant: NI A JUDGMENT CASES REFERIU~D TO: J. Wilson & Another v Tumman & Fretson [1884] EngR 844 134 ER 2. Chuck v Cremer (1846) 1 Coop temp Cott 338; 47 ER 884 I I_ I I I I I I I I I I I I 3. Mulenga v Mutnbi, Ex Parte Mhango (1975] Z. R 76 4. l\tla.nvell Mwamba & Stora Solomon Mbuzi v Attorney General of Zambia f 1993] 3 LRC 166. 5. Clissold v Cratchley & Anothe1· [1910] 2 K. B 244 6. Churchill v, Siggers 1854 3 E.& B 929.937.938 7. lndo ZAMBIA Bank Limited v lvfushaukwa Mnhanga, SCZ Judgment o. 26 of2009 8. Krige & Another v Christian Cow1cil of Zambia (1975) ZR 152 3. 9. Industrial Finance Company Limited v Jaques & Partners (1981) ZR 75 10. Amos Siwila & Zanaco v Chisa Estates Limited Appeal No. 132 of 11. Byrne v Kanweka (1967) Z. R 82 12. Khalid l\tlohammed v Attmney General (1982) ZR 49 13. Wilson Masauso Zulu v Avondale Housing Project (1982) Z. R 172 14. Atton1ey General v E . B. Jones Machinists Limited (2000) Z. R.. 114 15. Monis v Salberg [1889] 22 QBD 614 16. Mpande Nchimunya v Stephen Hibwani Michelo (1997) S. J. (S. C.) LEGISLATION REFERRED ~.[Q.;_ 1. Banking & Financial Services Act, I 994, Cap 387 Laws of Zambia 2. The High Court Act Chapter 27 of the Laws of Zambia OTHER MATERIALS REFERRED TO: l. Halsbury's Laws of England 4 th Edition Volume 17 2. Robert K.. Barnhart, The World Book Dictionary, World Book Inc, Publishers of The World Book Encyclopedia, 1998 12 I Pae e I I 1. I I I I I I 3. The Rules of the Supreme Comt of England (white book) 1999 Edition 4. R. F. Y. Heuston, 'Salmond. on To1ts'I Su1 Edition, Sweet & Maxwell 5. R.,,,. M. Dias 'Clerk &Li!t.dsellon Torts' 15th Edition , S\l',rcet& Maxwell 1982 1. INTRODUCTION l.1 lt must be stated for the record that the delay in the dclive1y of this Judgment is deeply regretted , Tl was not deliberate or in disregard of the importance of delivery of judgments in a timely fash ion and as prescribed by the law. lt was occasioned by the excessive workload of the Court and the relocation to a new station. 2. SUMMARY OF STATEMENT OF CLAilvf 2 .1 This is a matter where the P laintiffs took out a Writ of Summons and Statement of Claim seeking the follow ing reliefs - i. The r Plaintijfclaims: a. Damages for: 1. Trespas5~- u. Wrongful execution and or abuse ofthe civil process; and b. Interest at such rate and for such period as the Cou,t shall deem just on any amount that shall be found due and payable to the P1 Plain.tiff under pamgraphs I (a); tt. The /51 Plaintijjfurther claims: a. The sum of J3 I Page I I I I I I I I I I 1. US$88, 748. 34, ·which was paid to che Sheri.ff'of Zambia; and u. US$949,933.87 paid into Court; b. Interest on the m oney due under paragraphs 2(a) which the /'" Plaintiff would have realised had the P1 Plaintiff lent its money to customers in the normal course of its business; iii. The Plaintiffs claim: a. an injunction to restrain the Defendants by themselves servants, agents or othenvise howsoever }1'0111 trespassing upon the Plai11tijfs' premises or purporting to e11force the judgment for the sum of US$949, 933. 81 and interest under Cause No. 20121 HPCI 577 against the Plat'ntijfs,· b. Costs of and occasioned by this action. 2.2 In the Plaintiffs 1 Statement of Claim filed into Court on 10th D ecember 2019 it was averred that the P 1 Plaintiff was a licensed commercial ban k and the majority shareholder of the 2nd Pla intiff commercial bank. 2.3 lt was stated that the 1>1 and 2nd Defendants were Plaintiffs under Cause No. 2012/HPC/577 wherein the 2nd Plaintiff was a Defendant. F urthermore, the 2nd Plaintiff was the P laintiff under Cause No. 1996/ HP/ 4739 and the P 1 Defendant was the pt Defendant. It was further stated that the 3rd Defendants were the advocates of the pt and 2nd Defendants under Cause No.2012/HPC/577. J4 I f> a e e I I I I I I I I I I I I 2.4 The Plaintiffs averred that on or about 17ni May 1998, the 2mi Plaintiff obtained a judgment againsl the I sr Defendant under Ca use No. 1996/ HP /4739 for Lhc s um of US$1,200 1000.00 and interest at 12% per annum from 22 nd November 1996, until the date of full payment, and as at 30th September 2019, the debt stood at US$4,491,090.41 as unpaid by the P 1 Defendant. 2.5 lt was further averred that on or about 29th March 20 18, the 3rd Defendants acting as advocates fo r the 1st and 2nd Defendants obtained judgment under Cause No. 2012/HPC/577 in favour of the 1 si and 2nd Defendants, against the 2nd ·Plaintiff for the sum of US$949,933.8] and interest thereon . 2.6 On 1J111 September 2019, the Defendants by Writ of Fieri Facias levied execution on the pt Plaintiff at its premises situated at Atlas Mara House, Corner of Church and Nasser Roads, Ridgeway, I ,usaka, in enforcing the judgment for the sum of US$3,924,896.81 inclusive of interest against the 2nd Plaintiff 2. 7 It ,,vas stated that Defendants wrongfully trespassed on the pt Plaintiff's said premises and wrongfully seized the goods of the 1st Plaintiff, thJough Bailiffs and or officers appointed thereon to assist in the execution. 2.8 The P laintiffs averred that at the time of issuance of the said Writ of Fieri Facias, the said judgment had been wholly satisfied by the 2m1 Plaintiff under the Ex-Parte Garnishee Order Nisi dated 6th July 2018. JS I P a ge I I I I I I 2.9 It was stated that as part of the condition in granting a stay of execution of the Writ of Fieri Facias, the P 1 P laintiff was forced co pay the sum o f US$88,748.34 as bailiffs fees and Kl2,444,132.91 equivalent to 0S$949,933.87 at the exchange rate then obtaining into Court. 2.10 rt was averred that as a result of l11e said action the P la intiffs had been put to substa ntial loss a nd expenses in defending the said action, whereas the 1st Plaintiff suffered Joss of business, custom and goodwill and bad its trade and business interrupted and disrupted. 2. ll The Plaintiffs m aintained that the 31 " Defendants took out the Writ of Pieri Facias in bad fa ith, ·with malice a nd with the motive of damaging the 1 ~t Plaintiff's business rather than furthering the interests of the 1st and 2nd Defendants and/ or without reasonable cause. 2 .12 The Plaintiffs laid out their particulars as follows : (a)Although the p r Plaintiff was the major shareholder in the 2nd P laintiff, the actio n and the judgment under Cause No.20 I 2/HPC/577 were against the 2nd Plaintiff. (b)The Writ ofFieri Facias was executed on the pt Plaintiff. (c) The Order of the Court staying execution of the judgment of the Court against the 2nd Plaintiff was discharged on 16111 September 2019, and on 17th September 2019, the 3rd JG I Pa e e I I I I I I I I I I I Defendants issued the Writ of Fieri F acias, which was executed on 181 h September 2019. (d)Thc issuance of the said Writ of Fieri Facias was not preceded by any inquiry as to wbctbcr the 2nd Plaintiff was aware of the discharged Order of Stay or whether the 2nd Plaintiff could settle the judgment debt or communicated details where the judgment debt co uld be remitted; (e) The Defendants knew that the pt Defendant had been indebted to the 2nd Plaintiff since 22nd November 1996, in the sum of US$1,200,000 and interest thereon, which debt remains unpaid; (f) The pr Defendant was present on 18th September 2019, at the 1 n Plaintiffs premises givjng instructions to the Bailiff and other officers engaged by the Bailiff on what assets of the 1 s ' Plaintiff to seize; (g)The pt Defendant engaged in altercations with the is1 Plaintiffs employees bringing the l st Plaintiff's operations to a standstill; (h)The pt Defendant directed the Bailiff and other officers engaged by the Bailiff to seize the 1st Plaintiffs server thereby paralysing the operations of the 1 sl Plaintiff; (i) The Defendants knew that the P1 Plaintiff did not have movable assets worth US$3,924,896.81 that could be the subject of seizure; and J7 I Page I I_ I I I I I I I I I I U) The 3rd Defendants knew that the 2nd Plaintiffs indebtedness to the 1st and zmi Defendants had been discharged and therefore not capable of enforcement under the Ex-Parte Garnishee Order Nisi dated 6th July 2018. 2.13 Lastly, it was avencd that the Defendants threatened and intended unless rcstTaincd by this Court to continue and repeat their vvrongful acts . 2.1 1sT AND zNn DEFENDANT'S DEFENCE 2.1.1 The P 1 and 2nd Defendants' filed their Defence on 2 l51 December 2019 wherein they averred that the High Court judgment under Cause No. 2012/HPC/577 was confirmed by the Court of Appeal in a J udgmcnt dated 2 9ui November 2019. 2. 1.2 It ·was slated that their execution was not wrongful in that: 1. rrhe execution was directed against the 2nd Plaintiff and not the 1st Plaintiff 11. T he amount endorsed to be levied was the principal judgment sum and not USD3,924, 89681. 111. The execution was pursuant to a regularly issued judgment of the High Court using normal execution procedures. 2.1.3 The I5l and 2nd Defendants further averred that there was no difference between the 1st and 2nd PlaLntiffs as the former acquired the latter under the provisions of the J8 I Page I I I I I I I I I I Banking and financial Services Act 1994 at the material time. 2.1.4 lt was stated that the judgmenl was therefore executable at any premises of lhc 1st and 2nd Plaintiffs. According to the I st and 2'1 d Defendants' Defence, the 2nd Plaintiff never obtained any Garnishee in Ca use No. 2012/HPC/577 which was being enforced and the said Ex-pa1te garnishee proceedings were the subject of ongoing proceedings under cause number 1996/ HP / 4739. 2.1.5 The !51 and 2nd Defendants further stated in their Defence that the 2nd Plaintiff's attempt to bring its alleged judgment against the 1st and 2nd Defendants in Cause No. 1996/ HP / 4739 into Cause No. 2012/HPC/577 was refused by the Supreme Court and classified such an attempt as frivolous, vexatious and an abuse of court process, which frivolity, vexatio usness and abuse of court process \vas now being transferred into this cause. It was stated that the stay of execution and conditions attached thereto were granted to the 2nd Plaintiff. 2.1.6 T he l51 and 2nd Defendants averred that they would plead cstoppcl by fact and equitable cstoppcl against the 1st and 2nd Plaintiffs in that the Plaintiffs were estopped from claiming that there was and is a difference between the 1st and 2nd Plaintiffs because the p t Plaintiff was the one who paid the bailiff fees and money into Court and not the 2nd J9 I Page Plaintiff thereby emphasizing the absence of any difference bet ween the 1st and 2 nd Plaintiffs. 2 .1. 7 It ·was stated that it was the Plain tiffs' stubbornness m refusing to pay that caused them the alleged loss and expenses. F urthermore by letter dated 201h September 20 19 addressed to the Chief Justice and authored by the Plaintiffs' Advocates Simeza Sangwa and Associates, the Advocates disclosed that the 2nd Plaintiff was willing to pay the judgment sum but that their said Advocates advised them not to pay and therefore any losses and expenses suffered were self-inflicted and/or inflicted by Plaintiffs' Advocates. 2. 1.8 The !51 and 2nd Defendants maintained that the Writ of Fieri Facias was regularly issued pursuant to a judgement which entitled them to recover US$949,933.87 from the Plaintiffs and attempts to set aside the Writ of Fieri Facias under Cause No. 2012/PC/577 failed as the Writ of Pieri Facias was properly issued. It was stated that the entire action was malicious, an abuse of court process and frivolous as it related to the same issues before other Courts. 2. I. 9 lt \•Vas a vcrrcd that the P laintiffs knew or ought to have known that they were the same entity and such fact was on the Plaintiffs1 official website. I 1. I no I P n g e I I I I I I 2.1.10 In response to the Plaintiffs' particulars 1 it was averred as follows: a) There was no difference between the 1 s1 and 2nd Plaintiffs in terms of banking law as the pr Plaintiff acquired all the assets and liabilities of the 2nd Plaintiff. b) The Writ of Fieri l ... 'acias was executed against the 2nd Plaintiff whose assets and fiabilities were assmned by the P 1 Plaintiff. c) The I st and 2nd Defendants were at liberty to execute the judgment immediately afler the stay of execution was discharged after a period of over one year following inter-parte argu.ments. There was no need for further delay to enjoy the fruits of the judgment. d) That on the day of execution the Plaintiffs \Vere provided with account details of the 3rd Defendant into which to pay the judgment sum and interest by the bailiffs bur they refused to do so on the misguided advice of their said Advocates. The Advice was misguided in that the Advocates knew that the Supreme Comt had declared the attempt to link the judgment in Cause No.1996/HP/4739 to Cause No. 20 i2/HPC/577 as frivolous, vexatious and an abuse of the court process. Jll I P nee I I I I I c) That the 2nd Defendant was not a party to Cause N o.1996/ HP I 4739 t)That bailiffs \Vere professionals who did not need to be directed in the performance of their duties. g) lt was ridiculous to suggest that an altercation wou.ld bring the operations of the Plaintiffs to a halt. 2 .1.11 Lastly, the p t and 2nd Defendants averred that to date of filing their Defence, the 2nd Plaintiff had obtained a stay of execution from the Supreme Court pending the hearing of their application for leave to appeal to the Supreme Court, which in thei1 view was mischievous and an abuse of court process. 2.1.12 The P 1 and 2nd Defendants denied that the Plaintiffs were entitled to the reliefs sought and urged the Court to dismiss the action with costs. 2.2 3RD DEFENDANT'S DEFENCE 2.2.1 The 3rd Defendants' filed their Defence on 241 h December 2019 wherein they averred that the judgment under Cause No. 2012/HPC/ 577 wa.s confirmed by the Court of Appeal in a judgment dated 29th November 2019. 2.2.2 ft was averred that the 3rd Defendants were not a party to Cause No. 2012/ HPC/ 577 but only acted as Advocates and as such were not the ones who levied the execution. It was stated that the execution \Vas directed against the 2"J Plaintiff and no t the p r Plaintiff. The amount 112 I Page I I I I I I Jl3 I f' <1 t: e I endorsed to be levied was the principal judgment sum and nol US$3 ,924,896.81 and the execution was pursuant to a regularly issued judgment of the Court using the normal execution procedures. 2.2.3 The Yd Defendants further averred that there was no difference between the p t and 2nd Plaintiffs as the former acquired the tatter under the provisions of the Banking and Financial Services Act 1994 and therefore the judgment was executable at any premises of the pt and 2nd Plaintiffs. 2.2.4 The 3rd Defendant stated that the 2nd Plaintiff never obtained any garnishee in Cause No. 2012/ HPC/577 which was being enforced and further stated that the 2nd Plaintiff's attempt to bring its alleged judgment against the p t and 2m1 Defendants in Cause No. 1996/ HP / 4739 into Cause No. 2012/ HPC/ 577 was denied by the SupTeme Court which classified the attempt as frivolous, vexatious and an abuse of cou1t process. 2.2.5 lt was stated that the said frivolity , vexatiousness and abuse of court process were now being transferred to this cause. The 3rd Defendants averred that the stay of execution and conditions attached thereto were granted to the 2°0 Plaintiff. 2.2.6 The 3rd Defendants pleaded both estoppel by fact and eq uitable estoppel against the ]51 and 2nd Plaintiffs and I I I I I I I I averred that the Plaintiffs \Vere cstoppcd from claiming that there was a difference between the I st and 2 nd Plaintiffs because the is1 Plaintiff paid the bailiff fees and money into Court instead of the 2n11 Plaintiff emphasizing the absence of any difference between the 1st and 2nd Plaintiffs. 2.2.7 The 3rd Defendant averred that it vvas the Plaintiffs' stubbornness in refusing to pay that caused them the alleged loss and expenses. The 3rJ Defendants fu rther plead cstoppd by fact and equi table estoppel against the l5L and 2nd Plaintiffs and averred that by letter dated 20th September 2019 addressed to the Chief Justice and authored by the Plaintiffs1 Advocates Simeza Sangwa and Associates, the Advocates disclosed that the 2nd Plaintiff was 'Nilling to pay the judgmem sum but the said Advocates advised them not to pay and therefore any losses and expenses suffered were sclf~inflictcd and/or inflicted by their Advocates. 2.2.8 It was sta ted that the 151 and 2nd Defendant had a Judgement which entitled them to recover US$949,933 .87 from the Plaintiffs and did so by the issuance of the Writ of Fieri Facias. Although attempts were made to set aside the Writ of F ieri Facias under Cause No.2012/HPC/577, the same failed as the Writ of Fi.cri Facias was regularly issued. J14 I Pag e I I I I I 2.2.9 The 3rd Defendants further stated that this action was malicious, an abuse of court pTocess and frivolous as it related to the same iss ues that \,vere before other courts. Additionally, the Plaintiffs knew or ought to have known that they were the same entity , a fact which was on the Plaintiffs' official website. 2.2. 10 In response to the particulars, the 3rd Defendant averred the following: a) There was no difference between the pt and 2nd Plaintiffs at lavv as the 1~ Plaintiff acquired all the assets and liabilities of the 2nd Plaintiff. b) The Writ of Pieri F acias vvas executed against the 2nd Plaintiff whose assets and liabilities were assumed by the 1st Plaintiff. c) The P 1 and 2nd Defendants were at liberty to execute the judgment immediately after the stay of execution was discharged after a period of over one year following inter-parte arguments. There was no need for further delay to enjoy the fruits of the judgment d) The Yd Defendants knew of no law which required inquiries before execution; That on the day of execution the Plaintiffs were provided with account details of the 3rd Defendant into which to pay the judgment sum and interest by the bailifts but they refused to do so on the misguided advice of their said ns I Pae e I I I I I Advocates. The Advice was misguided in that the Advocates knew that the Supreme Court had declared the attempt to link the judgment in Cause No.1996 / HP / 4739 to Cause N o. 20 12/ HPC/ 577 as frivolous, vexatious and an abuse of the court process. 2.2.11 Lastly , the Yd Defendants averred that as at the dace of filing their Defence, the 2nd Plaintiff had obtained a stay of executio n from the Supreme Co urt pendin g the hearing of their appJication for leave to appeal to the Supreme Court, which in their view was mischievous and an abuse of court process. 2.2.12 The 3'd Defendants denied that the Plaintiffs were entitled to the reliefs sought and urged the Court to dismiss the action with costs. 3 TRIAL 3.1 PLAINTIFFS' CASE 3 .1.1 At the trial of the matter, the Plain tiffs called two (2) witnesses. 3.1.2 Mutule 13wcmbya Muscba a Legal Practitioner and the l st Plaintiffs in~house legal advisor was PWl. He testified that the issues between the parties were mostly historical, the key of which were t\vo matters. The fll'st matter was commenced in 1996 by the 2'"1 Plaintiff against International Investments and Finances Limited and its 116 I Page I I I I I I I I t\vo guarantors namely D imitrios Monokandilos and K.ostas 1:vlastrokoli, arising out of a default on a credit facility. 3.1.3 P'\Vl stated that in this matter judgment was obtained in favour of the 2nd Plaintiff and confirmed this by referring the Court to the judgment at page I of the Pla intitrs Bundle of Documents. p·\Vl told the Court that the said judgment ordered the 2nd Plaintiff to recover from D imitTios Monokandilos and Kostas Mastrokoli the sum of US$1 >200,000.00 with interest at the rate of 12% per annum with effect from 22nd November 1996. 3.1.4 PWl testified that after the aforem entioned judgment, the 2nd Plaintiff was unable to satisfy the judgment debt as against the l51 Defendant as all efforts to execute the judgment were met with 'nulla bona' returns. 3.1.5 PWI stated that the 2nd Plaintiff then took out garnishee proceedings against the pc Defendant resulting in an Ex partc Garnishee Order granted in favour of the 2nd PlaintHl~ garnishing the 1 H Defendant. PWl confirmed that the said Ex-pa1ie Garnishee Order appeared at pages 69 to 71 of the Plaintifr1s Bundle of Documents. 3.1.6 According to PWl, the said Ex-parte Garnishee Order attached aU debts due and accruing to the judgment debtor to satisfy the judgment. According to PWl, the Garnishee Order was still subsisting to date. PWl went J171 Pag e I I I I I I I I I I on to state that the said Garnishee Order was served on the JSi Defendant's Advocates namely Messrs. Mambwe Siwila and Lisimba Advocates and Central Chambers as evidenced by the letter of service appearing at page 72 of the Plaintiff's Bundle of Documents. 3.1. 7 PWI went on to testify that, in the second key matter, judgment was obtained in favour of the 1st and 2nd Defendants, which action related to a claim by the I st and 2nd Defendants against the 2ndPlaintiff arising out of an allegation that the 1 i t Plaintiff had recovered funds from their joint account. 3.1.8 When referred to page 2 of the P laintiffs Bundle of Documents 1 being a Statement Claim with the Cause No.1997/ HP/136 relating to the second key matter, P"\¥1 told the Cowt that following its commencement the matter was abatted and subsequently reinstated on the commercial list of the High Court and issued a new Cause No. 2012/HPC/577 culminating in a judgement against the 2nd Plaintiff. The said judgment dated 29lh March 2019 was identified and appeared at page 19 of the Plaintiffs Bundle of Documents. 3.1.9 PWl stated that after the judgement1 there was an application to stay of execution pending an appeal of the judgement to the Court of Appeal which application was granted to the 2nd Plaintiff. The said Ex~parte Order for J181 P a ge I I I I I I I I I stay of execution pending appeal appeared at page 67 of the Plaintiffs Bundle of Documents. 3. 1. 10 According to PWl, no action was taken on the matter) whilst the stay of execution was in force, however on 18th September 2019, officers from the Sheriff of Zambia, accompanied by the P 1 D efendant and two ladies w ho intToduced themselves as the daughters of the p r Defendant set upon the premises of the 1st Plaintiff. 3.1. 11 PWl told the Court that fo ll.owing the arrival of the Sheriffs at the p t Plaintiff's premises he called State Co unsel John Sangwa ,vho was acting for the 2nd Plaintiff to inquire why a Writ of Fieri Facias had been endorsed with the 1st and 2nd Defendants as Plaintiffs and the 2nd Plaintiff as Defendant a nd being executed on premises of the rs· Plaintiff. the 3 .1.12 PW 1 referred the Court to page 117 of the Plaintiffs Bun dle of Documents being the W rit of Fieri Facias which read ''you a1·e hereby -commanded in the President's name that of the goods and chattels of Finance Bank Zambia Limited you caused to be made tl1e sum of US$949,933 .81 and also interest at 7% per annum from 26th February 1996 to 29th March 2019 and thereafter at current bank lending 1·ate, as determined by Bank of Zambia, which said swn of money and interest were lately before the High Court in a certain action wherein Dimitrios Monokandilos and Filandria J19 I P a ~ e I I I I I I I Kouri were Plaintiffs and Finance Bank Zambia Defendant by a Judgment of the said Court bearing date 29th March 2018, to be paid by the said Finance Bank Zambia Limited". 3.1.13 PWI went on Lo testify that according to State Counsel John Sangwa there was a stay of execution in those proceedings, however upon PWl 's engagement with Bailiff Liyuwa of the Sheriff of Zambia , he informed P"\1/1 that the stay of execution had been discharged and presented him a copy of the Writ of Pieri Facias which had an amount endorsement in pen at its bottom . PWl could not remember the exact amount but it was circa in excess of US$3,900,000.00 which the bailiff instructed to be paid into an account of the 1st Defendant, domiciled at ECO Bank Zambia, failing which he would commence collection of the assets of the P 1 Plain tiff. 3.1. 14 P"\1/1 infonned the Court that the l 51 Plaintiff ,vas connected to the 2nd Plaintiff via a share purchase arrangement which was entered into between their respective shareholders. He stated that the shares of the znct Plaintiff were transferred to the !51 Plaintiff making the ts' Plaintiff the majority shareholder of the 2nd Plaintiff. PWl refened the Court to the shareholding in 2nd J'laintiffBank at pages 130 to 134 of the Plaintiffs Bundle of Documents. JZO I P ,i g e I I I I I I I I I I 3.1.15 PWl picked up his testimony that he was present together with the then Managing Director of the pt Plaintiff Bank Mr. James Koni, Bailiff Liyuwa and another officer from the Sheriff of Zambia as well as the 1st Defendant when the demand for payment was made. P,¥1 stated that he indicated that they were willing to have the matter resolved without any disruption to the business as they waited for their lawyers to advise them on the status of the matter. 3.1.16 PW1 further testified that they were then joined by State Counsel Robert Simeza and State Counsel John Sangwa, but before their anival, the Sheriff had indicated that they had refused to pay and therefore called their agents to start collecting goods. 3 .1.17 PWl stated that the 1st Defendant directed the agents of the Sheriff of Zambia towards the 1st Plaintiff Banks's server room and despite pleas to the bailiffs, the police officers who accompanied the bailiffs compelled the I st Plaintiffs staff to open the door to the server room at whkh point the bailiffs and the 1st Defendant entered the server room and began disconnecting the 1st Plaintiff Bank's server and thereby debilitating all of the bank's operations. 3. 1.18 PVvl further stated that attempts were made to lift segments of the server out of the premises and a number J21 I I-' a g e I I . - I I I I I of these segments were lifted causing an entire shutdown of the P 1 Plajntiff's core banking system. 3 .1.19 When refe1Tcd to paragraph 8 of the 1st and 2nd Defendant's Defence, touching o n execution and pleading cstoppcl as to the difference between the pt and 2"(] Plaintiffs, P"'\Vl told the Courl that following the execution on the 1 si Plaintiff, the 2nd PlaintHf's counsel was engaged ,:vho indicated having filed an application before the Cou1t of Appeal to stay execution pending the delivery of the judgment of the Court of Appeal, which at the time was due for ruling. 3.1.20 P"\V1 stated that in the said application for stay of execution before the Court of Appeal, a condition was placed that the 2nd Plaintiff pays into Comt the judgment debt as a condition for granting the stay. In addition to paying the Sheriff of Zambia's fees amounting to approximately US$88 1000.00. 3.1.21 PWl confirmed that the said amounts were paid as evidenced at page 127 of the Plaintiff's Bundle of Documents being a payment instruction by the 1st Plaintiff in the sum of Kl 2,444, 132.91 (Judgment sum equivalent) to the beneficiary account of the Court of Appeal at Stanbic Bank. 3.1.22 PWl told the Court that the pt Plaintiff settled tl1e sums as opposed to the 2nd Plaintiff owing to the decision by J22 I Page I 1 .. I I I I I I I I I I I I I the Sheriff of Zambia to ignore the intimation that the pr Plaintiff \Vas nor a party to the proceedings upon which the Writ ofFieri Facias was being executed. 3. I .23 P"\Vl stared that the destruction that came with the removal of ftuniture, equipment and mostly the server made the l51 Plaintiff desirous of bringing the execution to a halt as it suffered severe damage and presented a factual scenario that the pt Plaintiff was insolvent and incapable of settling its debt's in the financial sector. 3.1.24 PWl further stated that given rhe significant damage suffered following the execution and the threat of continued execution, the F Plaintiff was placed in a position where it could not afford any further disruptions and had to expedite the process of obtaining the stay of execution by making payments to the Sheriff of Zambia and the judgment debt, notwithstanding that it was not a party to the proceedings in which judgment had been entered, but to escape any further continued cxcc11tion on itself. 3.1.25 In response to paragraph 9 of the l61 and 2nd Defendant's Defence touching on rhe Plaintiffs' stubbornness in rcfusjng to pay, PWl told the Court that the pt Plaintiff was not a party to those proceedings and had not been served any demand to pay the judgment sum. PWl stated that the first demand for such payment came through the Writ of fieri Facias directed at the 2nd Plaintiff. J23 I rage I .. I I 3.1.26 PWI added that only about 20 minutes elapsed between the presentation of the Writ of Pieri Facias and the commencement of the execution process and. it had also come to their attention that a demand for settlement of the judgment sum had not been made on the 2nd Plaintiff and therefore the averments in paragraph 9 were incorrect. 3.1.27 Furthermore, when directed to paragraph 14 of the is1 and 2nd Defendant's Defence relating to assets, liabilities, the stay of execution and the execution, PWI reiterated that the Writ of Fieri Fac.ias that was executed was issued to be executed against the 2nd Plaintiff1 but executed on the 1 sl Plaintiff. 3.1.28 P'Wl stated that this would have been without issue had the !51 Plaintiff been a party to the judgment and the Writ of Ficri Facias addressed for execution on the assets of the I st Plaintiff PWl added that because the 1st Plaintiff was not a party to the action pursuant to which the stay of execution was discharged, there was no liberty to have its assets executed upon, even after the lifting of the stay of execution. 3.1.29 PWl further stated that in relation to paragraph 14 (g) of the 1 •1 and 2nd Defendant's Defence, PWI pointed out that disabling the server in the said altercation disabled the pt Plaintiff's core banking system, which was only J24 I P a g e I .. I I I I I I I I I I reinstated a week later, creating what PWl referred to as a stoppage to the operations of the P' Plaintiff. 3.1.30 When referred to page 118 of the Plaintiffs Bundle of Documents being a Writ of Fieri Facias PWI told the Court that it read ''the Defendant Finance Bank Zambia Litnited operates as Atlas Mara Zambia, Atlas Mara House, corner ChUich/Nasser Road, Lusaka". PWI told the Court that the statement co ntained in the Writ of Fieri Facias was factually incorrect as the 2nd Defendant was a different entity from the 1st Plaintiff and had its license as a financial institution withdrawn by the Bank of Za mbia in 2018. 3.1.31 PW I added that the 2nd Plaintiff maintained its corporate status separately from the 1 si Plaintiff PWl mentioned to th e Court thar it came to his attention particularly that the discharge of the stay of execution did not come to the attention of the 2nd Plaintiffs counsel by his reading of the letter written by the 2nd Plaintiff's counsel addressed to the Chief Justice. PWI confirmed that the said letter appeared at pages 13 to 15 of the !51 and 2nd Defendant's Bundle of Documents. 3.1.32 PWI further stated that the said letter at pages 13 to 15 of the p t and 2nd Defendant's Bundle of Documents, aided b is testimony that there was n o refusal or stubbornness on its part to settle the sums or indeed justify the execution of a judgment debt on the premises of an entity J25 I Pa g e I I I I I I I which was not a party to the proceedings which the Writ of Fieri F acias was issued. 3.1 .33 When cross-examined by the 1st and 2nd Defendant's co unsel, and referred to page 13 of the pt and 2nd Defendants' Bundle of Documents, PWI confirmed that the Defendant referred to in the said letter was the 2nd Plaintiff and not the l 5 1 Plain tiff. 3.1.34 Upon reference to page 2 paragraph 3 of the same letter, PWI confirmed that the 1st Plaintiff \Vas willing to pay the judgment debt as per the letter. PWl however stated that the letter pointed out advice by counsel against paying judgment debt, bur did not know if that was the reason why m oney was not paid. 3.1.35 When referred ro page 1 of the Plainti.frs Bundle of Documents being an Order under Order 13 HCR then under Cause No. 1996/ HP/4739, PWI confirmed that the 2nd Defendant in these proceedings was not a party to these proceedings under cause number 1996/ HP I 4739 and therefore unenforceable against the 2nd Defendant. 3.1.36 PWI confirmed the existence of r,vo distinction matters. PWI stated that in the case where the execution occurred , the dispute arose from the application of funds sitting in an account w ith the 2 nd Plaintiff being applied towards the satisfaction of a debt under a guarantee. J26 I P ac 1:: I I , I I I I 3.1.37 PWl further confirmed that the dispute, in that case, was that the 2nd Plaintiff had used money in the l st and 211d Defendants' joint account belonging to the 1st and 2nd Defendants to pay off a debt that one of the parties allegedly had with the 2nd Plaintiff. 3.1.38 According to PWI, the High Court found that the 2nd Plaintiff had no right to use the funds in the 1st and 2nd Defendants ' joint account as per the judgment at page 39 of the pt and 2nd Defendant's Bundle of Documents. PWl stated that the said j udgment was appealed against as the 2nd Defendant was dissatisfied, culminating m similar a decision as that of the High Court on appeal. 3.1.39 PWl confirmed that the 2nd Plaintiff wanted to appeal against the Court of Appcaljudgement, however, leave to appeal was denied by the Court of Appeal and further leave from a single Judge of the Supreme Court also failed. 3.1 .4.0 PW. I further confirmed that as at now the judgement of the Court of Appeal was that the 2nd Plaintiff could not t1se ·the 1st and 211 1 Defendants' joint account to pay off ' the debt. When referred to pages 69 -71 of the Plaintiffs' Bundle of Documents, PWl confinncd that the same was a Garnishee Order issued on 6th July 2018 and after the judgement in Cause No.2012/HPC/0577 appearing at pages 19- 39 of Plaintiffs' Bundle of Documents. J27 l Pae e I I I I I J28 I Page 3.1.41 r,v1 added context that the Ex-parte Garnishee Order Njsi attempted to garnish all debts due and accruing from the Garnishee being the 2nd Plaintiff attaching a judgment against the 1st Defendant in this cause. 3.1.42 P,v1 confirmed that Ex-partc Garnish Order Nisi was attaching money under Cause No. 2012/HPC/0577 which ,vas contra1y to what the Court held as the 2nd Plaintiff was no t entitled to use the money. 3.1.43 PWl also confirmed that the 1st and 2nd Defendants were entitled to execute their judgment and at the time the Vlrit of Fieri F acias was issued and executed there was a judgment in place which could be executed and there was no stay of execution because it had been discharged. 3.1.44 When referred to the Writ of Fieri Facias at page 19 of the 1st and 2nd Defendant's Bundle of Documents, PWl agreed there was no mention of the 1 sl Plaintiff and the amount indorsed on the Writ was not US$3 1000,000.00 but US$949, 933.81. 3.1.45 PW! confomed that the Writ of P ieri Facias mentioned the 2nd Plaintiff operated as Atlas Mara being the l st Plaintiff. PWl stated that Atlas Mara was the 1st Plaintiff's trading name and therefore not a corporate body so as to have any relationship with the 2Jid Plaintiff. P, :v1 added that the 2nd Plaintiff had never used the name of Atlas Mara. . . I I I I I I 3.1.46 PWl reiterated that the pt Plaintiff was the majority shareholder m the 2nd P laintiff, following a share transaction, which said transaction/agreement was not before the Court. PWl. mentioned that he had seen portions of the said share transfer agreement, and the same would have been m the custody of various shareholders in the two Plaintiffs. 3.1.47 PWl informed the Court that he did not know what wouJd happen to the 2nd Plaintifrs customers' accounts following the share transfer agreement, however, he stated that there was an integration of the 1st and 2nd Plaintiffs' core banking systems which put their respective customers on the same platform and were now operated by the 1st Plaintiff. 3.1.48 PWI confirmed that he had previously worked for the 2 nd P la intiff before the 1st Plaintiff, following the purchase of shares. PWl agreed that apart from taking over the 2nd Plaintiff's accounts, the l51 Plaintiff also took over employees. 3.1.49 PWI fmther confirmed that at the time the 1st Plaintiff purchased the shares, the 2nd Plaintiff had a debt portfolio which was taken over by the P 1 Plaintiff. Hm,vever, PWl stated this did not mean that this case was taken over. He stated that what had been taken over was a contingent liability in that if a judgm ent arose, the ultimate entity JZ9 I Pa g e I ' . I I I I I I I which would bea r the loss would be the 1st Plaintiff, however, liability would attach to the 2m1 Plaintiff which still existed and not the l st Plaintiff. 3.1.50 PWl admittedly stated that he had no evidence of the said contingent liability before the Court as that was not a fact to be proved. PWl denied that availing of the share sale agreement would have resolved most of the issues in dispute as the issues related to the execution on the P 1 Plaintiff. 3.1.51 PWl confirmed that the P 1 Plaintiff had been holding itself out and telling members of the public that it was one entity with the 2nd Plaintiff PVvl stated that the document at pages 1 and 2 of the 161 and 2m1 Defendants Bundle of Documents confirmed this position revealing an amalgamation of the 1st and 2nd Plaintiffs and the new entity acquiring many branches across the country. 3.1.52 PWI further confirmed that at the time the pt Plaintiff obtained the shares from the 2nd Plaintiff there was a need for the Bank of Zambia to approve the arrangement which according to PWl was done. 3.1.53 When referred to page 10 of the I st and 2nd Defendants Bundle of Documents which was a letter from the Bank of Zambia dated 19th December 2019, PWl confirmed that according to the said letter, the P 1 Plaintiff was acquiring the 2nd Plaintff and would birth a new entity. BO I Page I . ' I I I I 3.1.54 Furthermore, PWI confumcd that a.ccording to the aforementioned letter, all the liabilities and assets of the 2nd Plaintiff were now those of the 1 s, Plaintiff. PWl informed the Court that the merger between the p t and 2nd Plaintiff occwred around August 2018 . According to PWI the 1st and 2nd Plaintiff still existed but only one Bank emerged from the merger being the 1st Plaintiff. 3.1.55 PWl stated that the execution took place in September 2019 after the merger. PWl fu1ther stated that he was unaware of what the public was informed as to what ought to be a liability of the 1st and 2nd Plaintiffs respectively. PWl confirmed that from this merger all operating branches were under the I st Plaintiff. 3.1.56 PWl informed the Court that according to his knowledge, the account which led to the execution had been closed many years ago. PWI insisted that when the Sheriff of Zambia pounced on the 1st Plaintiff, they pounced on the entity as the 2nd Plaintiff had its registered address as per the Patents and Companies Registration Agency printout, and was not domiciled at pt Plaintiffs premises and still retained its corporate capacity. 3.1.57 When referred back to pages 1 and 2 of the pt and 2nd Defendants Bundle of Documents, PWl confirmed the merger of the pt and 2nd Plaintiff and the new brand J31 I Page I .. I I • I I I I I I namely the l st Plaintiff emerged with its headquarters where the execution took place. 3.1.58 When cross-examined by the 3111 Defendant1s counsel, PWl confirmed that he worked for the l st Plaintiff who had made a statement to the public that the 151 and 2nd Plaintiff had become one. He stated that no one could be fau lted for believing the said jnformation as that was what had been availed to the public domain. 3 .1. 59 \1/hen referred to the press release at page 9 of th c I st and 2nd Defendant's Bundle of Documents specifically paragraph 4, PWI confirmed the mention of a merger and no (!lention of issues or limitations being reserved with the 2nd Plaintiff. 3.1.60 PWl told the Court that he had perused portions of the share transfer agreement, relating to a certain number of loans which came into dispute. When referred to page 2 of the l sr and 2nd Defendant's Bundle of Documents, PWl confirmed that same depicted three entities, namely Altas Mara and the 1 s1 and 2nd Plaintff with Atlas Mara claiming over 90 years of banking experience. 3.1.61 P\Vl stated that the same depiction showed that the 2nd Plaintiff had been incoqJorated on 2Yd September 19861 and the is( Plaintiff and various pre-entities as far back as l 956, hence the collective of over 90 years in banking. J32 I P ;i t: t · I • t I I I 3.1.62 PWl confirmed that when referring to Atlas Mara one was talking of the 1st and 2nd Plaintiff together. 3.1.63 When re-examined PWl clarified that the issue on whether it was because of counsel's advice that there was a refusal of payment in that, it was only communicated that there was advice of counsel and communication of refusal to pay in respect of Finance Bank Limited ,,vhich is a party relating to the proceedings as captioned and not the 1st Plaintiff. 3.1.64 PWl further clarified regarding the Bank of Zambia letter at page 10 of the JS1 and 2nd Defendants Bundle of Documents, that his understanding of the guidance of what Section 29(2)(a) of the Banking and Financial Services Act provided was that the transfer of assets and liabilities was not absolute but subject to what would be agreed to vest in the new entity. 3.1.65 Furthermore, when refe1Ted to page 110 of the !51 and 2nd Defendants Bundle of Documents, PWI clarified that the 181 Plaintiff was explaining the implication of the approval for the acquisition of the 2nd Plaintiff by the 1st Plaintiff to employees of the 2nd Plaintiff indicating that their contracts of employment fell within the bracket of a provision and that would allow their employment contracts to be treated as though they had been employed by the I s i Plaintiff. PWl stated that this did not include the liabilities that were contemplated in this case. J331 Page I I I I I I I I I 3.1.66 PWl clarified that after the effective date of the merger, two entities existed, one being the l51 Plaintiff and the other the 2nd Plaintff, however, operations would be conducted under the 1 ~1 Plaint.ff under the brand Atlas Mara Zambia. According to PWI, this related to the commercial operations and not the existence of only o ne entity because the 2nd Plaintiff still had som e assets awaiting transfer. 3.1.67 PWI also stated that in agreeing that Atlas Mara Zambia was the l51 and 2nd Plaintff, the introduction of the new brand termed Atlas M.ara Zambia was a combination of the business of the pt and 2nd Plaintff and a trading brand, not a corporate entity. 3.1.68 PWl added rhar the business of the merged entities would run und er the new brand hence the experience of the two brand s being combined to show the wealth of experience and did not entail that the previous entities were now defunct nor that Atlas Mara Zambia was a new corporate entity tha t survived that merger. 3.1.69 PWl further added that the 2nd Plaintiff continued and continues to exist as part of the merger process. 3.1. 70 PW2 was Collins Masumbnko a Security Manager testified that he oversaw the general security of the p t Plaintiff. He stated that some of the security features housed at the 1st Plaintiff Bank were both physical and J34 I Page I .. I I I I I I I I electronic measures, notable of which was Closed-circuit television (CCTV) placed in restricted areas only accessible to security personnel and selected senior members. 3.1.71 PW2 testified that the CCTV comprised of Internet Prolocol cameras (IP cameras) connected to a network video recorder which fed into servers. PW2 told the Court that the said IP cameras were placed in selected areas of the pt Plaintiff Bank to keep a record of the activities taking place. 3.1.72 He stated that the records were stored m the security office w hich was a restricted area on devices protected by passwords, and firewalls making them very secure. When referred to page 141 being a thumb drive, PW2 identified the same as consisting of footage he had obtained of the 1st Plaintffs premises, on 18th September 2019 between 09:00 to 12:00 hours depicting a caucasian gentleman whom he later came to learn was the 2nd Defendant together with some policemen and officials frmn the Sheriff of Zambia office. 3.1.73 PW2 then narrated through the various video footage on the thumb drive and stated that in one video one could see a gentleman from the office of the Sheriff of Zambia accompanied by the 2nd Defendant and two policemen. Between 09: 11 hours and 09:31 hours, one could see a group of people entering the p r Plaintiffs premises and I I I I I I proceeding to restricted areas, and a short while after, could be seen leaving the premjses carrying furniture. 3.1.74 In another video footage at 11:44 hours a security guard could be seen being pulled by a bailiff accompanied by the police head towards the 1st Plaintiffs customer restricted premium lounge and at 11 :50 hours, the 2nd Defendant could be seen entering the same area. 3.1.75 PWl stated that the last video showed the bank's vault area which isn't easily accessible. 3.1.76 When cross-examined by the I st and 2 nd Defendant's Counsel, PW2 confirmed that in the footage shown, the l51 Defendant was at all times in the company of bailiffs. PWl added that the 1st Defendant could not be seen picking up any items in the footage. 3.1.77 PW2 confirmed that non-customers could access the premium longue. PW2 told the Court that he was not aware that the 1~1 Defendant had permission to be on the pt Plaintifrs premises. He stated that the said premises were not that of the 2nd Defendant but the 1st Plaintiff and according to PW2 the 1st Plaintiff acquired the 2nd Plaintiff and continued to cany on business the l51 Plaintiff. 3. 1.78 When cross-examined by the yd Defendant's Counsel, P"\V2 confomcd that he joined the 1st Plaintiff on the l st March 2018. PW2 stated that he was aware that the J36 I Page I I I I I bailiffs did not trespass as they had a Court document allowing them to execute. 3. 1.79 There was nothing asked in re-examination. 3.1.80 This marked the end of the Plaintifrs case. 3.2 JST AND 2ND DEFENDANT'S CASE 3.2.1 The 1st and 2nd Defendants relied on the evidence that would be given by the 3n1 Defendant. 3.3 ya DEFENDANT'S CASE 3.3. l DWl was SUas Mambwe a Senior Legal Practitioner, practising under the name of Mambwc, Siwila and Lisimba Advocates, the 3rd Defendants in this matter, and the y.i Defendants' sole witness. 3.3.2 He testified that this matter arose from a \1/rit Fieri Facias that was issued against the 2nd Defendant trading as Atlas Mara Zambia under Cause No. 2012/HPC/0577. 3.3.3 DWI stated. that when the matter was commenced m 1997 under the firm Central Chambers he was by then an associate. He stated that the claim that was instituted by the I st and 2nd Defendants related to a joint account that the two held as husband and wife with the 2nd Plaintiff. 3.3.4 According to o,v1 the issue then was that the 2nd Plaintiff had debited their joint account without their consent to satisfy a debt of the 3rd party company in which the P 1 Defendant was a director. DWI stated that J371P age I . ' I . : I I I I I I I BS I Pas r! I I soon after the case was commenced under Cause No. 1997/HP/136, the P' Defendant was deported from the country and the case halted until he returned to Zambia in 2010. 3.3.5 DWI told the Court that by 2010 he bad left Central Chambers and was practicing law under the name and style of the firm Mambwc, Siiwila and Lisirnba Advocates, which firm the l 51 Defendanl instructed to join Cause No. 1997 / HP /136 alongside Central Chambers. 3.3.6 n,v1 further told the Court that he issued a notice of intention to proceed which prompted, the 2nd Plaintiff to apply to dismiss the action for want of prosecution and after arguments before the Deputy Registrar, the matter was allowed to proceed . DWI stated that several appeals by the 2nd Plaintiff thereafter all failed. 3.3.7 DWI testified that in 2012 following the inLroduction of the commercial registry, he applied to have the matter transferred to the commercial division, thus explaining the two (2) Cause No . 1997/ HP/136 and 2012/HPC/ 0577. 3.3.8 D"'\Vl further testified that when the matter was before Justice A. M. Wood as High Couit Judge then, the 2 nd Plaintiff applied to amend their pleadings to include the .. l I I I I I I I I • circumstance that led to a judgment they had obtained against the l51 Defendant under Order 13 of the High Court Act then. 3.3.9 According to DWI, Justice Wood ruled that the circumstances of the two cases were very different and the two matters could not be tried together, therefore the amendment was refused . The matter was then reallocated to Justice W. S. Mwcmba and again the 2nd Plaintiff attempted to amend their pleadings, to include their counterclaim against the 1st Defendant, which attempt failed. 3.3.10 DWI went on to state that the 2nd Plaintiff appealed the Higb Court decisions and again the appeals failed. DWI referred the Court to page 4 of the Plaintiffs' Bundle of Documents being a judgment on appeal. According to DWI I a judgment was eventually obtained under Cause No. 2012/HPC/0577 in favour of the I st and 2nd Defendant in this matter, which in effect decided that it was wrong for the 2nd Plaintiff to debit the joint account of the I st and 2nd Defendants and ordered that that money which had been debited approximately US$949,000,000 be paid back to the 1st and 2nd Defendant. 3 .3 .11 DWI stated that immediately after the judgment was delivered the 2nd Plaintiff obtained a stay of execution pending a hearing in the Court of Appeal before the presiding judge and the application was heard inter J39 I Pa Be I I I I I I I I I I J40 I Pag e parties and ll1c rnling was reserved. The parties then prese nted the ir arguments in the Court of Appeal and Judgment ·was rese1ved. 3.3. 12 According to DWI ,;vhile a,;vaiting delivery of the Court of Appeal Judgement, about a year later the High Court delivered a ruling on its inter-pa1tc arguments for the stay of execution and discharged. its earlier Ex-parte Order for stay pending appeal. 3.3.13 DWI told the Court that he then 1eceived instructions from the l st and 2nd D efendants to levy execution bearing in mind that the judgment had been delivered over a year prior and there \Vas no stay of execution. 3.3.14 DWI fmther told the Court that at the time of preparing the Writ Fieri Facias, he inquired on the status of the 2 nd Plaintiff, and was made aware through public media and public information that the 2nd Plaintiff had stopped operating as a bank and all its accounts, including its branch network, had been taken over and where now operating as the 1 s1 Plaintiff. 3.3.15 DWI testified that the information he found was to the effect that the 2nd PlaintfI had been acquired by the p r Plaintff and arising from the acquisition, the entity that continued to operate as a bank was the 1 sr Plaintiff. I I 3. 3 .16 When referred to pages 1 -5 of the P 1 and 2nd Defendants' Bundle of D ocuments, DWI told the Court that the same were extracts he pulled ftom the pr Plaintiff's website which confirmed the acquisition of the 2nd Plaintiff, in that the two banks held themselves out as one which to his understand revealed that there was a merger between the 1st and 2nd Plaintiff which became known as 'Atlas Mara Zambia' with 90 years of combined banking expcnence. 3.3.17 DWI fu.1thcr sta ted that it was evident that the P 1 Plaintiff acquired, the 2J1° Plaintiff on 2nd July 2016. He stated that he also visited the Wikipedia research engine for more information about Atlas Mara Zambia, which revelations appeared at page 6 of the isl and 2nd Defendants' Bundle of Documents, in that Atlas M ara Zambia \Vas established on P 1 December 2016 when the 1st and 2nd Plaintiff merged and had its headquarters situated at Atlas Mara House at the cmner of church road and Mansa road in the city of Lusaka. 3.3.18 DWI infom1ed the Court that the pt Plaintiff even put out a press release in the daily mail dated 10111 Febmary 2020, which appeared at page 9 of the 1st and 2nd Defendantst Bundle of Documents. Armed with all this information DWl proceeded to prepare a Writ Pieri Facias by endorsing the Writ with the information that J41 I P a g e I .. I the 2nd Defendant was operating as Atlas Mara Zambia at the given address on the Writ Fieri Facias. 3.3.19 According to DWI, one could also see both the pt and 2nd Plaintffs' logos at a billboard near their premises, however owing to the injunction in this matter, DWl was not sure if the said logos were still there. DWI stated that when he endorsed the address, he was not acting with malice or ill intention as pleaded by the Plaintiffs, but acted on information that was in the public domain. 3.3.20 DWI testified that when the execution was effected he received a phone call from State Counsel John Sangwa who told him that he was going to sue Messrs. Mambwe 1 Siwila and Lisimba Advocates. Upon the threat, DW1 authored a letter to the Bank of Zambia asking for infonnation on the stalus of the 2nd Plaintiff given that they were regulators. 3.3.21 DWI confirmed to the Court that the letter at page 11 of the 1 ~c and 2nd Defendants' Bundle of Documents was the letter he authored explaining the circumstances of his request and asking to be avail documents on the merger. 3.3.22 In response a letter was written to DWI, which letter appea1·ed at page 10 of the 1st and 2nd Defendants' Bundle of Documents and in essence stated that consent was given by the Bank of Zambia for the 1 s ' and 2nd Plaintiffs to merge and f01m one new entity the 1st Plaintiff, and J4Z I Page I I I I I directed DWI to the law that regulated such transactions which provided for what happened to the assets and liabilities of the old entities. 3.3.23 According to the said letter, all assets and liabilities of the 2nd Plaintiff \Vere transferred and became binding on the P 1 Plaintiff trading as Atlas Mara Zambia. DWI stated that to his understanding the Judgment of the High Court against the 2nd Plaintiff was a liability that had been transferred, assumed and became binding on the 1st Plaintiff. 3.3.24 DWI informed the Court that the Judgment of the High Court was confirmed by the Comt of Appeal and was unenforceable because an order of stay of execution was granted pending the 2nd Plaintiff's attempt to obtain leave to appeal against the decision of the Court of Appeal judgement. 3.3.25 In relation to the 2nd Defendant, D"\Vl testified that Messrs Mambwe, Siwila and Lisimba Advocates settled her Defence as her advocates having been sued because of the Writ of F ieri Facias he issued. 3.3.26 DWl stated that the 2nd Defendant was not present in the video footage shown to the Court on the day of execution by the Plaintiffs nor was she even in the country at the time of the execution and therefore could not have trespassed or gone to the 1st Plaintiffs premises. J43 I rage I I I I I I I I I I I I 3.3.27 DWI further informed the Court that the garnishee order sought to obtain the same money that both the Court of Appeal judgement and the High Cotut judgement ordered to be paid to the 1st and 2nd D efendant thereby defeating the t\~10 judgments. 3.3.28 He further stated that he was made aware of a complaint from the Plaintiffs' advocates authored by State Counsel John Sangwa to the Chief Justice relating to the manner in which the ruling that discharging the stay of execution by Judge Mwemba was delivered and transmitted to the parties. 3.3.29 DWI stated that in the said letter State Counsel John Sangwa informed the Chief Justice that the 2nd Plaintiff was willing to pay the judgment sum but he advised them not to pay. 3.3.30 The aforementioned letter was said to appear at pages 13- 15 of the 1st and 2nd Defendants' Bundle of Documents. It was DWI 's testimony that had payment been made the extent of the execution would not have been as it was. 3.3.31 When cross-examined DWI denied working on the subject action while at Central Chambers and reiterated that the action commenced when he was at Central Chambers. DWI confirmed being instructed to conduct the matter in 2010 upon the pt Defendant's return to J44 I r- age I I I I I I I I I I Zambia and pursued the matter against the 2nd Plaintiff, with the Plaintiffs being lhe 1sc and 2nd Defendants. 3.3.32 DWI confirmed that the Statement of C1aim appearing at page 2 of the P laintiff1s Bundle of Documents was the same claim that was transferred. to the Commercial Court culminating in a judgment in favour of the I st and 2nd Defendants against the 2nd Plaintiff. 3.3.33 DWl confirmed that the P 1 Plaintiff was not mentioned in the St.atement of Claim or judgment earlier mentioned. DWI confumed that he had instructions to issue the Writ of Fieri Facias which Writ he con finned appeared at page 117 of the Plaintiffs' Bundle of Documents dated 17th September 2019. 3.3.34 DWI confirmed making enquiries as to the state of the 2nd Plaintiff at the time of issuing the Writ of Pieri F'acias and admitted that he never informed the Court when be looked a.t the publications on the internet and the daily mail publication. 3.3.35 When referred pages l 12,6 and 9 of the pc and 2nd Defendant-s' Bundle of Documents) DWI confirmed that there was no indication as to ·when the documents were accessed. DWI however confirmed that the press release at page 9 of the 1st and 2nd Defendants' Bundle of Documents was issued on 10°1 February 2020. J45 I Pa g c I I I I I I I 3.3.36 DWI could not confirm if the documents at page 2 of the 1 si and 2 m1 Defendants> Bundle of Documents were referencing a brand and not an entity. DWI told the Court that the letter issued by State Counsel John Sangv,ra appearing at page 13 of the is[ and 2nd Defendants' Bundle of Documents was issued after the Writ of Pieri Facias had been filed. 3.3 .37 DWI confirmed that he never wrote to the 2nd Plaintiffs advocates demanding payment before issuing the Writ of F ieri Facias and never received a letter from the 2nd Plaintiff indicating that they were unwilling to pay. 3.3.38 H e further confirmed that the Writ of Ficii Facias was endorsed to be executed at Atlas Ma:ra House and stated that at the time of execution 1 he was not there. DWl maintained that the 211d Plaintiff operated as Atlas Mara Zambia. 3.3.39 When referred to page 140 of the Plaintiffs' Bundle of Documents being a view trnde mark, DWI confirmed that its registration date was 2SC11 September 2018. He stated however that despite, the 2nd Plaintiff not being listed as owncrs 1 they appeared on the mark image and not by name. 3.3.40 When referred to the Patents and Companies Registration Agency printout relating to the 2nd Plaintiff at page 130 of the Plaintiffs' Bund.le of Documents, DWl J46 I P ag e I I • I I I I I I I I I I I I confirmed that the 2nd Plaintiffs registered office was Finance I louse 1st Floor Heroes Place Cairo Road. 3.3.41 When further re ferred to the Patents and Companies Registration Agency printout relating to the 2nd Plaintiff at page 135 of the Plaintiffs' Bundle of Documents, D"\V1 told the Co un that the P 1 Plaintiff's registered office was stand No. 746, Sub Division B, Corner of Church and Nasser Road, Atlas Mara House. n,v1 confirmed that this address was in essence the same as that endorsed in the Writ of Fieri Facias. 3.3.42 DWl confmned that the Defendant on the Writ of F ieri Facias he issued was the 2nd Plaintiff and the p t Plaintiff did not appear anywhere on the Writ of P ieri Facias. 3.3.43 When crossed examined over the Ex-parte Garnishee Order Nisi at page 69 of the Plaintiffs' Bundle of Documents, DWI confirmed that the said order attached the proceeds of the judgement under Cause No. 2012/HPC/ 577 before he took out the Writ of Fieri Facias. According to DWI did not know whether or not the said Ex-partc Garnishee Order had been set aside. 3.3 .44 When referred to his letter al page 11 of the 1st and 2nd Defendants; Bundle of Document<; DWl confirmed that the two entities he was referring to were the JS1 and 2nd Plaintiff and not one entity. DWI confirmed that nowhere at page 2 of the 1st and 2nd Defendants' Bundle J47 I P ,lg P I I.• I I I I I I I I I of Documents did it say that the 2nd Plaintiff seized to exist nor did the Patents and Companies Registration Agency. 3.3.45 According to DWI he never conducted a search on Atlas Mara Zambia. He confirmed thal he proceeded to prepare the Writ of Fieri Facias by endorsing it with the information that the 2nd Plaintiff was operating as Atlas Mara Zambia and stated that at some point both bank insignia were at the premises, however, DWI admitted he had no evidence of this before the Court. 3.3.46 DWI stated that the judgment of the High Court was ripe for execution once the stay of execution was discharged. He confmned that there was no evidence to show that he served the ruling discharging the stay of execution on the Plaintiffs. DWI confirmed that following the execution State Counsel John Sangwa sued, however, there was no action between State Counsel John Sangwa and himself as parties. 3.3.47 When referred to the letter authored by State Counsel John Sangwa at page 13 of the }51 and 2nd Plaintiffs Bundle of Documents, DW1 confirmed that the said letter referenced the need for judges and judicial officers to uphold Article 19(10) of the Constitution. 3.3.48 DWI confirmed that his letter to the Bank of Zambia appearing at page 11 of the 1st and 2nd Defendants' J48 I Pa ge I I I I I Bundle of Documents was dated 12th December 2019 and the response thereto 19c1i December 20 I 9. He further confirmed that the press release was at page 9 of the P 1 and 2nd Defendanfs Bundle of Documents was dated 10th February 2020, dating the said documents after the Writ of Ficri Facias was issued and the Ex-partc Ganishcc Order Nisi. 3.3.49 When re-examined n,v1 clai-ified that despite the letters appearing at page 13 of the P 1 and 2nd Defendants 1 Bundle of Documents and the documents at pages page 9 and IO all dated after the execution was carried out. The same did not change the position of 1st and 2nd Plaintiff. According to DWI they merely confirmed the information he had. 3.3.50 n,v1 fu1thcr clarified he never wrote to the 2nd Plaintiff to confitm the position that they had been advised by Counsel not to pay as he saw no need to do so. 3.3.51 When referred to the signage at page 1 of the 1st and 2nd Defendants' Bundle of Documents, DWl clarified that the signa.ge had two images in terms of signage; one being the 2nd Plaintiff depicting a lion head and the other logo circular in nature depicting the 1st Plaintiff. 3.3.52 \Vhen further re-examined by the Yd Defendant's Counsel, and referred to pages 11 and 12 of the 1st and 2nd Defendants' Bundle of Documents, DWI told the Court J49 I Page I I I I I that he was asking the Bank of Zambia to clarify the status of the pt and 2nd Plaintiff trading as Atlas Mara Zambia because the Bank of Zambia approved the takeover. 3.3.53 DWI also clarified. that the threat issued by State Counsel Jolm Sangwa, that he would be sued meant tllat the pr Plaintiff would sue his firm because of the execution. 3.3.54 This marked the close of the Defendants' case. 4 SUB1\1ISSIQNS 4.1 At the close of the defences' case, the parties were invited to make their submissions. Both parties filed their submissions - the Plaintiff inclusively filing submissions in Reply. It ought to be stated that the submissions ,vcrc collectively quite voluminous therefore no attempt will be made here to reproduce them. A summary of the thrust of the submissions will however be provided. 4.2 It also must be stated from the outset that the purpose of submissions is to assist the Comt in arriving at a just decision. The Court is therefore by no means bound by the propositions advanced in the submission nor is the Court unduly swayed by the perceptions created by them; 4.1 PLAINTIFF'S SUBMlSSIONS 4.1 .1 The Plaintiffs' submission started by addressing the burden of proof. It was submitted that the Plaintiffs bore the JSO I Page I I I I I I I burden of proving the claims against the Defendants and the standard required was that on a balance of probabilities. Reference v,:as made to a p lethora of a uthorities that discussed these principles. 4.1 .2 According to the Plaintiffs, their case was anchored on two ca uses of action firstly being trespass occasioned by wrongful execution of a Writ of P ieri Facias broken dow n further as the execution of the Writ of Fieri Facias on the wrong address and pa11y and that at the time of execution the judgment debt bad bee n satisfied. Secondly malicious execution or abuse of Court process by the Defendant 4.1 .3 In addressing the trespass based on the execution of the Writ of Fieri Facias at the wrong address and. party, it was submitted the execution was carried out on the !51 Plaintfff who was not a judgment debtor under Cause No.20 12/HJJC/577 at its premises situated at Atlas Mara House, Corner of Church and Nasser Roads, Ridgeway, Lusaka. 4.1.4 It was stated that the execu tion was levied on the ~!rong address in enfo rcing the judgment against the 2nd Plaintiff. The Sheriffs therefore acting on these instructions wrongfully broke into and entered upon the l st Plaintiffs premises and seized the l st PlaintifPs goods and chattels thereby trespassing on the said premises. JSl I Page I .. 1. I I I 4.1.5 Reference ,vas made to the learned authors of Halsbu1y's Laws of England OJ 011 wrongful execution. It was submitted that it was a trespass if the sheriff was directed to execute at a wrong address or executed a judgment debt which at the time of execution, had been satisfied. 4.1.6 According to the Plaintiffs, there are no Zambian cases on the point, therefore the Court was referred to the case of Wilson & Another v Tmnman & Fretson°> wherein Tindal, C. J. , stated: "If the defendant Ttt1'11ttnan had directed the sheriff to take the goods of the preset1t plaintiffe, undel' a valid writJ requiring him to take the goods of another persott than the defendant in the original action, such previous direction would undoubtedly have made hitn a trespasser, 011- the principle that all who procure a trespass to be done are trespassers tltemselvesJ and tlte S/zerriff would be supposed not to have taken tlie goods merely under the authority of tfte writ, but as the serva,it of the plaintiff''. 4.1.7 It was further submitted that the person who caused another to trespass was himself liable for the trespass. In a nutshell, the bailiffs V.-'ere trespassers and the judgment creditor and the lawyer who moved the sheriffs office were liable for trespass. 4.1.8 According to the 1st Plaintiff, it was the wrong party to be levied upon as it was not a party to the proceedings under ;s2 I P a g e I I I I J53 I Page I Cause No. 2012/ IIPC/0577 ·which resulted in the judgment pursuant to which the Writ of Pieri Facias was issued. 4.1. 9 It was further stated that the judgment was not available for enforcement because it was stayed by the 2°d Plaintiff by an Ex-partc Order dated 4th April 2018 and discharged by ruling delivered on 161 h September 2019. On 1 ?h September 2019, the Defendants issued their Writ ofFieri Facias which was executed on 18th September 2019, at Atlas Mara House, Corner Church/ Nasser Roads, Lusaka. 4.1. 10 According to the Plajntiff, the instruction given by the Defendants to the Sheriff was of utmost importance. The contention is not if the Writ of Fieri Facias was rightfully issued, but that the wrong instruction was given to the Sheriff in terms of the address and the description of the judgment debtor endorsed on the Writ of Pieri Facias. 4.1.11 It was submitted that it was the execution of the Writ of Pieri Facias ar the wrong address that made the Defendants liable to the P 1 Plaintiff for trespass. It was further submitted that the 2r,d Plaintiff's registered address publicly available from the Patents and Companies Registration Authority had them located at First Floor, Finance House, Heroes Place, Cairo Road, Lusaka and the p r Plaintiff at Stand No. 746, Sub-Division B, Corner I I .)· .. I I I of Church and Nasser Roads, Atlas Mara House, Lusaka, where the execution of the Writ of Pieri Facias was carrjcd out. 4.1.12 Furthermore, the Plaintiffs pointed out that there was a misdescription on the Writ of F ieri Facias in that the 2nd Defendant operated as Atlas Mara Zambia. It was submitted that information from the Patents and Companies Registration Authority revealed that "Atlas Ma.ra Zambia 11 was the trademark name oftbc 1st Plaintiff and not the 2nd Plaintiff. 4.1.13 l t was submitted that the 1st and 2nd Pla intiffs were two separate legal entities, and the only connection bet'\-veen them was that the 1st Plaintiff was the majority shareholder in the 2nd Plaintiff and at law they remained two separate legal entities, accountable in their own right for their respective debts, therefore making the execution on the I st Plaintiff to recover money payable by the 2nd Plaintiff wrongful and rendering the Defendants liable in trespass. 4.1.14 According to the Plaintiff, the evidence on record revealed the trespass by the bailiffs in the company of the p t Defendant, at the 1st Plaintiff's premises on 18th September 2019. 4. 1.15 It was stated that the })laintiffs established their case of trespass against the Defendants and discharged the J54 I Page I i,• I I I I I I I I I I I I burden of proof. Additionally, it was stated that the Defendants did not deny that execution of the Writ o f F ieri Facias on the l •1 Plaintiff and maintained that there was no difference bcrn1een the I s1 and 2nd Plaintiff because the JS' Plaintiff acquired the 2 nd Plaintiff under the provisions of the Banking and Financial Services Act (Repealed). 4.1.16 It was submitted that accordjng to the Defendants' defences their averments ctid not constitute a defence against the claim for trespass occasioned by wrongfol execution of the \V'rit of F ieri Facias, and therefore could not be absolved of liability, for five reasons addressed as foJlm,vs: (l)The Defendants' own evidence contradicted that the Plain_tiffs were one and the same. It was submitted that the argument that the execution of the Writ of Pieri Facias on the P 1 Plaintiff was proper in that the I st Plaintiff took over the assets a nd liabilities of the 2nd Plaintiff contradicted the information contained in the Vvrit of Ficri Facias because then, there should have been no reference to the 2nd Plaintiff o n the Writ of Pieri Facias because according to the Defendants, the !51 Plaintiff had taken over the 2nd Plaintiff. (2)The Defendants 'evidence did not support the notion that the 1st Plaintiff and 2nd Plaintiff are the same. Jss I P a i; r I . ' I I I I I I I I I I I I I It was further submitted that in contending that the l st Plaintiff and rhe 2nd Plaintiff were the same, the Defendants relied on documents and law which neither supported their defence, as they could not absolve themselves from the fact that they gave the wrong instructions to the Sheriff who acted on the said information and n-cspasscd on the J 5l Plaintiff. The Plaintiffs maintained that the evidence of DWI from the four sources being Atlas Mara's Website, press statements, Wikipedia, and correspondence with Bank of Zambia did not suppmt their defence as the information was put together after the event and did not fonn the basis of the Defend ants' decision to direct the Sheriff to levy execution on the pr Plaintiff at its address. ft was stated that although the Defendants refened to the Banking and Financial Services Act, they did not specify the sections of the Act ·which support their defence. It was highlighted that Section 26 of the Banking and Financial Se:rvices Act provided as follows: "26. (1) A bank or finandal institution slta/1 not effect a corporate restrud11ri11g tra11sactio11 with attother company that is 11ot a bank, financial institution or fi11attcial business. (JA) A bank or fi11a11dal institution may effect a corporate restruduri11g transaction with another company that is a finattcial business as long as the battk or financial institution is the survivittg )56 I P ii e e I I I I co,npany ,md the business being acquired through such transaction only conducts activities that the bank or financial ittstitt,tion is permitted to cottduct. (2) A bank or fittancial institJ1tiott shall not effect a corporate restructuring transactio11 with another bank or financial institution without the prior written consent of the Bank of Zambia. (3) A transaction effected ill contravention of this section shall be void. According to the Plaintiffs, the said provision could not be read independently of Section 25 of the Banking and Financial Services Act, which defined corporate restructuring and provided for two types of corporate restructuring transactions being a merger and or asset transfer. It was submitted that whether the transaction involved a merger or asset transfcr1 according to Section 29(1) of the Banking and Financial Services Act, the bank or financial institution formed to which the assets and liabilities are transferred was referred to as ''the new entity", while Section 29(I)(b) of the Banking and Financial Services Act, went on to provide for "the old entity" It was stated that neither Section 26 or Section 29 of th.e Banking and Financial Services Act, supported the Defendants 1 assertion that there was no distinction between the 1st and 2nd Plaintiffs. Furthermore, it was argued that he who alleges must prove. JS7 I Page I I I I I I It was stated that the Defendants had not led any evidence to establish the nature of the corporate restructuring transaction that occurred bctv.1een the Plaintiffs whether it vvas a merger or transfer of assets and liabilities. Since the issue of oneness had been raised by the Defendants in their defences1 the burden therefore rested on them to adduce such evidence. According to the Plaintiffc; when a corporate rest1·uctuting transaction occurred, the effect on the assets and liabilities of the old and new entities were dependent on the nature of the corporate restructuring transaction. Therefore one must have examined the agreement entered into between the new and old entity to establish what assets and liabilities had transferred and in the absence of evidence from the Defendants on the nature of the corporate restructuring transaction that the Plaintiffs entered. into, there was no foundation, basis or material which could be interrogated to detcnnine whether the liability of the 2nd Defendant in Cause No. 2012/HPC/577, was one of those liabilities that passed to the is1 Plaintiff. (3) The Plaintiffs stated that assuming that the 2nd Plaintiff had ceased to exist, or its interests and liabilities had transferred to or had passed on to the l st Plaintiff, the Defendants should not have engaged in self-help measures. Instead, before issuing any Writ of Execution they should have applied pursuant to Order 16 Rule 1 of the Higb Court Rules or Order 15 Rule 7 of the Rules of the Supreme Comt, for substitution of parties in J58 j P il g e I I I I I I I I I I Cause No. 2012/ HPC/ 577, so that proceedings could continue against the I 51 Plaintiff as the judgment debtor. It was submitted that if the Defendants were convinced that the liability of the 2nd Plaintiff arising from Cause No. 2012/HPC/577 had been transferred and assumed by the is1 Plaintiff they did not have the authority, on their own to alter the parties in that judgment. In maintaining their position that the 2nd Plaintiff ceased to exist and that its assets and liabibties were taken over by the 1st Plaintiff, it v,1as a material change, which had an impact on the satisfaction of the judgment and the right course of action should have been to remove the 2nd Plaintiff in Cause No. 2012/HPC/577. (4) It was further stated that a judgment or order of the Court whether regular or irregular must be obeyed . No one had the right to amend the judgment of the Court to extend the liability of the 2nd Plaintiff to the 1.51 Plaintiff. It was submitted that apart from offending the provision of Order 15 Rule 7 of the Rules of the Supreme Court, the execution of the Writ of Ficri Facias on the 1st" Plaintiff violated the cardinal principle of law that orders of the Court whether regular or irregular or whetheJ they reflect the correct position between the parties or not, must be obeyed. Reference was made to the case of Chuck v Cremer cz> which held as fol.10\,vs: J59 I rage I ;.• I I I I I I I I I "A party, who knows of a11 order, whether null or valid, regular or irregular, camtot he pemtitted to disobey it ... It would be most dangerous to !told that the suitors, or their solicitors, could themselves judge whether au order was null or valid - whether it was regular or irregular. That tltey should come to the Court and not take upott themselves to determine such a question. That the course of a party knowing of an order, which was ,mil or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be disch(:n-ged. As long as it existed it must not be disobeyed. " The Plaintiffs contended that the judgment was against the 2nd Defendant and therefore the execution ought to have been against the 2nd Defendant and not the 1st Plaintiff. The Defendants were obliged to take the judgment of the Court as it was and not as it ought to have been. (5) The execution of the judgment on the First Plaintiff ,vas against the concept of natural justice. It was submitted that there was a violation of the concept of natural justice by the Defendants' decision to instruct the Sheriff of Zambia to levy execution on the goods and chattels of the I st Plaintiff in thal no person shall be condemned without being heard. Reference was made to the cases of ) and. Maxwell ~Iulcnga v Munibi. Ex Parte Mhango < J6o I rag o I I I I I I I M wamba & Stora Solo1non 1'Ibttzi v Attorney General of Zambia <4 ) _ 4.1.17 In furtherance to tbe tl'espass, it was submitted that the Judgment debt under Cause No . 2012/HPC/0577 had been satisfied when the Writ of Pieri Facias was executed on the pc Plaintiff. The Plaintiffs contend that they bore the burden in proving that the Judgment debt under Cause No. 2012/ HPC / 577 was the subject of a Garnishee Order that satisfied the Judgment debt under Cause No. 1996/ HP/4739. 4.1.17 The Court was referred to the case of Clissold v Cratchlev & Another <5 > on trespass occasioned by execution of a Writ where the judgment debt had been satisfied. According to the Plaintiffs, if they could show that at the time of execution, the judgment relied upon as the basis of the execution had been satisfied, it would provide the basis for an action in trespass. 4.1.18 It was submitted that a judgment could be satisfied by payment of the judgment debt or by some means other than payment of the money and that a Writ oJFieri Facias was a means of enforcing a judgment of the court and ··where the judgment debt has been satisfied there is nothing to enforce. J61 I Pag e I , . I I I 4.1.19 The Plaintiffs contended that where the judgment debt has been satisfied and nonetheless execution was issued, the satisfied judgment creditor was liable in damages for trespass and the complexion of the case changed to jnclude a claim for malicious prosecution or malicious abuse of the process of Court where there is evidence that the issuance of the Writ of Fieri Facias was actuated by malice. 4.1.20 According to the Plaintiffs, under Cause No. 1996/HP/ 4739 1 the 2nd Plaintiff was the Plaintiff and the l51 and 2nd Defendants were Dimitrios Monokandilos and Kosmas Mastrokolias. In this matter, judgment was entered in favour of the 2nd Plaintiff against the Defendants for US$ l ,200,000.00 together with interest at the rate of 12% per annum with the effect from 22nd November 1996 until full payment. 4.1.21 Under Cause No. 1997 / HP /1 361 which was lateJ moved to the Commercial List and given a new Cause No. 2012/IIPC/0577 j udgment was entered in favour of Dimitrios Monokandilos in the sum of US$949,933.81 and interest thereon at the rate of 7% per annum from 26th Februa1y 1996 to the date of the judgment, thereafter at the current bank lending rate as determined by Bank of Zambia. 4.1.22 lt was pointed out that the situation which emerged was J62 I P a g P I I I I I I I I that the parries had successful judgments against each other albeit varying sums. The 2nd Plaintiff set out to satisfy its judgment and :moved the Court under Cause No. 1996/HP/ 4739 for a Garnishee Order to garnishee the proceeds of the judgment under Cause No. 2012/HPC/ 0577, to satisfy the judgment debt under Cause No. 1996/HP/ 4739. 4 . 1.23 It vrns further stated that the purpose of the application was for the 2nd Plaintiff to use the money due to the pt Defendant under Cause No 2012/HPC/577, to satisfy the 1st Defendant's indebtedness to the 2nd Plaintiff under Cause No. 1996/ HP / 4739. 4. 1.24 The Plaintiffs contended that by Order of the Court, the 2nd Plaintiff had satisfied the judgment under Cause No. 2012/HPC/577 and therefore ceased to be of any effect and there was nothing to enforce . It was also stated that to date the said Garnishee Order has never been discharged and for as long as the Garnishee Order remains in force, there is no judgment to execute in Cause No. 2012/ HPC/ 577. 4.1 .25 It was submitted that the Defendants had not provided any defence to their decision to issue the Writ of Fieri Facias in Cause No. 2012 / HPC/577, in the face of the Gan1ishcc Order and therefore the issuance and execution of the Writ of Ficri Facias, in the face of the Garnishee Order, was trespass on the pr Plaintiff. J63 I P a p, e I I 4.1.26 It was contended that in addition to trespass the issuance and execution of the Writ of Fieri Facias provided for the foundation for a cause of action for malicious execution and / or abuse of the process of Court, which the Defendants denied. 4.1.27 According to the Plaintiffs, the p1inciple of law on malicious execution was laid down in the case of Churchill v Siggers (6 > wherein the Court said: "It would not be creditable to our jurisprudence if t!te debtor had no remedy by action where !tis person or goods have been taken ht execution for a larger sum tltatt remaitted due upolt the judgment, .. . the creditor well knowing that the sum for which execution is sued out is excessive, attd his motive being to oppress or injure the debtor." 4.1.28 The Plaintiffs submitted that the difference between the two causes of action (trespass and malicious execution) is that in the case of trespass, there is no need to prove malice. However, proof of malice is required in the case of malicious execution as stated by Vaughan Willia.ms > wherein it was stated: L. J ., in Clissold v Cratchley < "I am of opinion that this appeal must be allowed, although I do not think tltat tlte pri1tciples of law upon which I base my judgment are in any way contravened by J64 I Page I I I I I I I I I I J65 I Pa g c the judgments delivered iu the Divisio11al Court. Whett tltose judgments aye read, it is clear that both of them recognize tl,e distitictiott between an action 011 the case and an action of trespass; they recognize that in an action on the case for maliciously suing out process the a/legation of malice is one of fact which must be proved by the plai11tijf, and that, if it is 11ot proved, the action cannot he supported. They further recognize that, if an actio11 for malicio11s/y suing out process is not an action 011 the case but cm <1ctio11 of trespass, malice is itt no sense essential to its maintenance. I am not sure !tow it came to pass t!tat, recog11izi11g these distinctions, tlte judges in the Divisional Court decided the present case on tlte basis that tltis action could not succeed wit/tout proof of malice. The plaintiff i1t the action shows tltat there were alternative causes of action alleged: the action was in part for maliciously issuiug process, attd alternatively for trespass: tfte county court judge in terms recognized this fact in his j11dgme11t, which was delivered as a judgment itt an action of trespass. Arriving, as I do, at the co11clusio11 that this was an action of trespass, and that it was totally unnecessary for the plaintiff to give evidence of malice, it is necessary to see whether a11ytltittg can be relied 011 as showing that a judgment in trespass was wrong. I can see nothing at all to warrant such a co11dusio11." I .. I ,- I I I I I I I I 4.1.29 It was submitted that Writ of Fieri Facias issued and executed on the 1st Plaintiff maliciously and without any probable cause in the hope that t.he 1st Plaintiff, fearing loss of business, custom and goodwill and interruptions and disruptions in its trade and business, would pay. 4. 1.30 According to the Plaintiffs, the Defendants knew the !51 Plaintiff was no l the Judgment Debtor, but issued an instruction to execute on it. 1t was stated that even though there was a corporate restructuring as defined by the Act between the l51 and 2nd Plaintiff there was no reason to issue execution against the I sr Plaintiff. 4.1.31 It was also submitted that the Writ of Pieri Facias was not preceded by a demand for the judgment debt to be paid before an appointed d.atc 1 before execution, which position taken by the Defendants was contrary to Order 42 Rule 4 of the High Court Rules on the issuance of Writs of Execution. 4.1.32 It ·was further submitted that in addition to no demand for payment being made, no inquiry was made concerning the 2n d Plaintiff's capacicy to settle the judgment sum and the Defendants did not communicate the details of the account where the judgment sum was to be remitted . J66 I Page I I I I I I I I I 4.1.33 The Plaintiffs maintained that Defendants offered no explanation why their account details were not communicaled to the Plaintiffs before they issued the W1it of Fieri Facias, which failure according to the Plaintiffs could only be explained by the fact that the Defendants were actuated by malice. 4.1.34 lt was also noted in the Plaintiffs' submission that the 1st Defendant was present at the time of execution of the \1/rit of Ficri Facias and the Defendants knew that the 1 s1 Plaintiff had no movable asset worth US$3,924,896.81 that could be the subject of seizure, making it evident that the intention of the Defendants was not to seize goods and chattels but to injure the 1st Plaintiff in its business, custom, and goodwill and disrupt its trade and business. 4.1.35 The Plaintiffs further maintained that the 3I0 Defendants were liable for t1cspass, in that the bailiffs executed on the 1 s1 Plaintiff on the instructions contained in the Writ of F ieri Facias dated 17 September 2019, issued by the Third Defendants as Advocates for the JS' Defendants in Cause No. 2012/ HPC/ 577. 4.1.36 It was submitted that the fact that one acted as an Advocate was not a defence in action for damages for trespass founded on wrongful execution as both the J67 I f> a g e I I I I I I I I I judgment creditor and the Advocates responsible for issuing the Writ of Execution become liable for trespass and malicious execution . 4.1.37 Lastly, it was prayed that the Court finds in favour of the Plaintiffs, in relation to the claims for damages for trespass and malicious execution, and refer the matter to a Registrar for assessment. 4.1 .38 The Plaintiffs prayed to be awarded the sum of US$88, 748.34 paid to the Sheriff of Zambia as fees and the sum of US$949,933 .87, paid into Court; interest on the said sums, damages for trespass malicious execution and finally costs. 4.2 DEFENDANTS' SUBlvIISSIONS 4.2.1 The Defendants in their submission stated that the facts in this matter were largely undisputed in that the P 1 and 2nd Defendants were Plaintiffs and the 2nd Plaintiff was Defendant under Cause No. 2012/HPC/577 which resulted in a judgment that was later upheld by the Comt of Appeal. The said judgment was stayed and by ruling delivered over one year later it was discharged. 4.2.2 The Defendants pointed out that under Cause No. 2012/HPC/577, the dispute was whether or not the 2nd Plajntiff as they did , use funds in the pt and 2nd Defendants' joint account to pay off the debts of a third party without their consent. J68 I Pit g e I I I I I I I I I I 4.2.3 It was stated that the 2nd Plaintiff had also obtained a judgment under the then Order 13 of the High Court Rules, against Dimitrios Monokandilos and another party relating to a third party debt wherein the 2nd Defendan t herein - F ilandra Kouri was not a party. 4.2.4 According to the Defendants, a series of appeals were launched after an attempt by the 2nd Plaintiff to introduce a Counterclaim into the Ca use No. 2012/HPC/577 using the said judgment under Order 13 of the High Court Rules, which failed on account of being frivolous and vexatious . 4.2.5 It was submitted that fol1owing the discharge of the Stay of Execution, the 3rd Defendants as Advocates for the !51 and 2nd Defendants issued a Writ of Fieri Facias to be executed at Atlas Mara House1 Corner Church/Nasser Roads, Lusaka, where the is1 Plaintiff operated from. 4.2.6 The Defendants took time to examine the respective cases, and according to them the Plaintiffs case was that the 1st Plaintiff was a separate and distinct Company from the 2nd Plaintiff against whom the judgment in Cause No.2012/HPC/577 was obtained, and therefore execution of the Writ of Fieri Facias on their premises, against the 2nd Plaintiff, amounted to trespass and ,vrongfu1 execution and or abuse of the Civil process. J69 l P age I I I I I I I 4.2. 7 It was pointed out that the l st Plaintiff only purported to be the major shareholder in the 2nd Plaintiff and was not responsible for the liabilities of the 2nd Plaintiff. 4 .2.8 In examining the 2nd Plaintiffs Case, it was stated that the 2nd Plaintiff denied owing the Defendants any money under Cause No. 2012/HPC/577 as the same had been wholly satisfied by virtue of the Ex-parte Garnishee Order Nisi, making an injunction the only relief for the 2nd Plaintiff, which according to the Defendant was dismissed and in light of no appeal it was prayed that the 2nd Plaintiffs case be dismissed with costs. 4.2. 9 Turning to their case the Defendants stated that the issuance and execution of the Writ ofFicri Facias against the 2nd Plaintiff at the premises of the 1st Plaintiff was neither wrongful nor an abuse of court process and did not amount to trespass as the 1 ~t Plaintiff was responsible for the assets and liabilities of the 2nd Plaintiff following the merger/ amalgamation of the two entities. 4.2.10 It was stated that the Defendants had the legal right to execu te the Writ of Pieri Facias in the absence of a Stay of Execution of the IIigh Court and Court of Appeal Judgments . 4.2.11 The Defendants laid out the issue for determination as follows: J70 I f' a e e I I I I I I 1) Whether or not the l s1 Plaintiff was liable for the debts of the 2nd Plaintiff, for it was there could be no trespass for which damages would ensue. 2) Whether or not the Writ of Fieri Facias was wrongfully issued/ executed to warrant a refund of the USS88,748.34 Sheriff fees a nd the US~949,933.87 equivalent paid into Co urt. 4.2. 12 In addressing the 1st Plaintiff's liability for the debts of the 2nd Plaintiff, it was submitted that the pt Plaintiff merged with the 2nd Plain tiff and according to the Bank of Zambia, the merger was governed by the Banking and Financial Services Act. 4.2.13 Reference was made to Section 29 (2) of the Banking and Financial Services Act as follows: "(2) wlie11 the corporate restructuring transaction takes effict- (a) All assets and liabilities of the old entity or, in the case of a transfer of assets and liabilities, those assets and liabilities agreed to be tra11sferred, shall vest i11 and become binding upo11 the 11ew Bank or transferee; (b) The new e11tity shall ltave t!te same rights and shall he subject to tire same obligations as were, immediately before the transaction took effect, binding upon the old entity; in the case of a tra11sfer of assets and liabilities, the J71 I Page I I I I I I I same rights anc! obligations as were applicable to the old entity with respect to t!te assets and liabilities transferred; (c) All agreements, appointments, transactions and documents relating to the subject matter of the trattsactiott and made, entered into, drawn or executed by, wit!t or bi fiivour of the old entity, and in force immediately before the transaction took effect; shall remain in fall force and effect and shall be deemed to have been made, entered into, drawn or executed by, with or in favour of t!te new e11tity; and ( d) Any mortgage, bond, pledge, guarantee or other instrument relating to the subject matter of the transaction and made or given to secure future advances, facilities or services by the old entity, which was bi force immediately before tlte tratt.sactioft took effect, shall remain of full force and effect and shall be deemed to be a mortgage, bond, pledge, guarantee or instrument given to or in fa.vour of the new entity as security for future advances, facilities or services by that Bank". 4.2-. 14 The Comt was referred to the definitions of an amalgamation or merger given by the learned authors of The World Book Dictionary <2 > as follows: ''Amalgamate- (i) to comblne to form a wltole,· unite ( any things that are distinct, such as elements, ideas or parts,· merge J72 I Page I I I I I I I I I Amalgamation- the result of amalgamating; a uniform whole formed of previously distinct elements, societies1 etc; combination; blend; union Merge- to cause to be swallowed up or absorbed so as to lose its own character or identity; combine or cot1solidate Merger- the act of merging or the condition of being merged; consolidation1• combination" 4.2. 15 Tt was submitted that the effect of an amalgamation or merger was that two prior entities becmne one and there was no longer any distinction between the two. It was stated that in this case following the acquisition the surviving entity being the p c Plaintiff assumed all the assets and liabilities. 4.2.16 The Defendants mentioned that the evidence before the Court pointing to the fact that the l st Plaintiff took over the assets and liabilities of the 2'\{1 Plaintiff was overwhelming. 4.2.17 It was further submitted that the Plaintiff had not adduced any documentary evidence addressing the extent of the contingent liability and on the strength of the case of the Indo Zambia Bank Limited y Mushaukwa Muhanga < > it was stated that it must be assumed that the contents such evidence could have been in favour of the Defendant.s. J73 I P i:l g ~ I I I I I I I I I 4.2.18 Furthermore, it was stated that the pt Plaintiff was estoppcd from denying a fact they represented as true to members of the public. Reference was made to the case of K1·ige & Another v Christian ConnciJ of Zambia < 8> on estoppel. 4.2. 19 The Defendants in answering whether the Writ of Ficri Facias "vas wrongfully issued or executed, submitted that it was executed at the premises of th e 1 s( Plaintiff because it took over the liabilities of the 2nd Plaintiff by the provision of the law and therefore not wrongful. 4.2.20 It was submitted that the Writ of Fieri Facias was issued pursuant to the High Court judgment following a discharge of the stay of execution of the judgment and failure to do so '"'ould have been professionally negligent for a lawyer. The Court was referred to the case of Industrial Finance Company Limited v Jaques & Partners (9 > touching on the duty of a lawyer to protect his clien t>s instructions so that if it is shown that the lawyer failed to exercise his duty to the cost of his client, the lawyer ought to make good and pay for that damage. 4.2.21 The Defendants also stated that despite evidence showing the 1 ~l Defendant at the l st Plain _tiff s premises, that was all that it showed and d id not prove that the 1st Defendant was directing the bailiffs on how to execute. According to the Defendants they are not aware of any J74 I P ., e i. I I 11s I P a r, <> I law that prohibited a party from being present when their judgment was b eing executed. 4.2.22 Turning to the Ex-parte Garnishee Order Nisi it v.,ras submitted that the said Order Nisi was in contravention of not only the High Court judgment as confirmed by the Court of Appeal but also the Supreme Court judgment which decreed that the attempt to execute the Judgment under Order 13 of the High Comt Rules in Cause No. 2012/HPC/577 was frivolous and vexatious and amo unted to abuse of Court process. 4.2.23 It was submitted t hat the said Ex-partc Garnishee Order Nisi conflicted with Orders of Superior Courts and was therefore null and void and of no effect. The Defendants maintain ed that even assuming the Ex-parte Garnishee Order Nisi was not null and void, it would still not make the execution of the Writ of F icri Facias wrongful as it was being executed by the 2nd Defendant herein as 211d Plaintiff, who was not a party to the Garnishee Order Nisi. 4.2.24 The Court was referred to the case of An10s Siwila and Zanaco v Chisa Estates Limited cio) which discussed in part wrongful execution. 4.2.25 In summation and conclusion , it ·was submitted that the I s1 Plaintiffs claim for trespass was legally untenable for multiple reasons being as follows: l)The l8' Plaintiff assumed the assets and liabilities of the 2nd Plaintiff. 2) The law provided that follow ing a merger the new entity being the l s ' Plaintiff became responsible for all the liabilities of the old entity. 3) T he l51 Plaintiff held itself out as one bank with the 2nd Plaintiff. 4) The Defendants had a va lid Judgment of the High Court which had not been stayed when executing the Writ of Pieri Facias 5) It was irrelevant that the 2nd Plaintiff had remained registered at the }latents and Companies Registration Agency. 4.2.26 It was submitted that the pt Plaintiff's claim for wrongful. execution and/ or abuse of process was incompetent because there was a judgment which needed to be satisfied and the 3rd Defendants were professionally obligated to execute the J udgment at the risk of being deemed professionally negligent by their clients. 4.2.27 The Defend a nts were of the view that the l5' Plaintiffs claim for US$88,748.34 and US$949, 933.87 were untenable because the Sheriff fees were paid in the course of a regular execution of a Judgment of the High Court and the payment into Court was pursuant to a Court Order which granted a stay of execution in the P' Plaintiffs favour and therefore to expect this money to be paid back defied logic. I I I I I I I J76 I Pa g c I I I I I 4.2.28 lt was submitted that the Plaintiffs failed to prove their case on a balance of probabilities and prayed that the case be dismissed with costs. 4.2.29 Lastly, it was pointed o ut that the Plaintiffs ought to have proved their case on a balance of probabilities and therefore it was stated that it was incumbent on the Plain tiffs to prove th e nature of the transaction between the Plaintiffs. 4.2.30 It was also stated that there was no need to apply for an alteration of parties rn Cause No. 2012/HPC/577 because Section 29 of the Banking and Financial Services Act provided for an automatic vesting of the assets and liabilities of the 2nd Plaintiff into the 1 s1 Plaintiff. 4.2.31 The Defendants m aintained that no law required a person executing a judgment to issue a demand letter when there was a judgment to be satisfied and that Order 42 Rule 4 of tl1e High Court Rules which the Plaintiffs cited related to judgments in default. 4.3 PLAJNTIFF'S SUBMlSSIONS IN RF. PLY 4.3.1 In Reply to the Defendants' submissions, the Plaintiffs submitted that the Defendants had not responded to the issues raised in the Plaintiffs' final submissions but 177 I Page I I I I I I addressed their own issues m rebuttal to the Plaintiffs' case. 4.3.2 It was reiterated that the Plaintiffs bore the burden of proving their case against the Defendants on a balance of probabilities and for the Defendants in response to show that the Plaintiffs did not. 4.3.3 It was submitted that the Defendants could not devise their own issues for determination, independent of those raised by the Plaintiffs. 4.3.4 According to the Plaintiffs, the issues for determination as per the Defendants were outs ide the scope of the pleadings and a mischaracterisation of the issues in controversy bctvveen the parties as issues for determination were always garnered from the pleadings settled by the patties as per the case of Byrne v Kanweka 4.3 .5 It was submitted that to succeed in their claims, the P laintiffs needed to establish that the Writ of Fieri Facias was executed on the wrong party and on the hand, to succeed in their defence the Defendants' duty \Vas to establish that the Writ of Pieri Facias was executed on the right party. 4.3.6 J.t was stated that the Plaintiffs addressed the law on trespass founded on the execution of a Writ of F ieJi J78 I P a g c I I I I I Facias at a wrong address and party, which law the Defendant<; did not contest. 4.3. 7 It was further submitted that the Defendants did not state where, in their pleadings, they gathered that the claim of the sum of US$949 1933.87 and USD88,748.34 was an issue for determination as these were remedies that the Plaintiff sought. 4.3.8 The Plaintiffs reiterated that the judgment debt bad been satisfied and the execu tion of the Writ of P ieri Facias on the I st Plaintiff, in the face of the Ex-parte Garnishee Order Nisi amounted to trespass. 4.3.9 ft was submitted that the definitions of amalgamation or merger did not assist the Defendants as the word "merger" did not appear in Part 2 of Chapter 3 of the Banking and Financial Services Act which provides for "corporate restructuring transaction" involving banks and financial institutions and the nature and character of the transaction was defined in Section. 25 of the Banking and Financial Services Act. 4.3.10 It was further submitted that the assertion the surviving entity being the P1 Plaintiff following the merger assumed all the assets and liabilities was factually and legally inaccurate. J79 I P Jee I I I I JBO I r ,1 sf' I 4.3 .11 T he Plaintifts contended that in the absence of evidence fro m the Defendants o n the na ture of the corporate restructuring transaction that the Plaintiffs entered into, no fo undation, basis or material could be interrogated to determine whether the liability of the 2nd Plaintiff in Cause No. 20 12/HPC/ S77 was passed to the 1st Plaintiff. 4.3.12 It was stated the Defendants had not established the nex us bet\~1een the claim that the P 1 Plaintiff took over the assets of the 2nd Plaintiff and the info1mation gleaned from the Websites, press statements, Wikipedia, and correspondence vvith the Bank of Zambia, whose evidentiary value was challenged and did not form the basis of the Defendants' decision to execute on the pt Plaintiff 4.3 .13 The Plaintiffs argued tha t the D efenda nts had mfaapplicd the law in the Mushaukwa Muhanga (7> ca.se as the issue in the said case was not about failing or omitting to avail the Court certain documents, but the construction of the provisions of the document before the Court. 4.3.14 It was stated that there was no obligation on the part of PWl to show how the debts of the 1 si and 2nd Plaintiffs were treated as the case was about trespass and therefore that burden lay with Defendants. 4.3.15 It was ~tated that the Plaintiffs were creations of the law, and whether the Plaintiffs were one entity or not was a I I I I I J81 I P a g (' matter of both law and evidence, therefore the principle of estoppel, as applied in Krige cs> could not apply to the issues in this case. 4.3.16 According to the Plaintiffs, the Defendants' reliance on the Mushaukwa Mul1ang~ and Krige CB) cases revealed the dangers of uplifting statements by the appellate Co urts without considering the context in which they were made. 4.3.17 It was submitted that the fact that the 2nd Plaintiff remained registered with the P atents and Companies Registration Agency was material to this case as accordi ng to the Companies Act, unless and until a company was removed from the register of companies, it continued to exist as a corporate entity separate and distinct from its owners. 4.3.18 The Plaintiffs pointed out that the Defendants' submissions were misplaced in that the issue in this case was not the legality of the judgment, but whether the Writ of Fieri Facias contained the correct information and if at the time the goods were seized the j udgment debt had been satisfied. 4.3 .19 In response to the professional negligence in not executing the Judgment as submitted by the Defendants, it was stated that the pursuit or protection of the I I I I I I I I I Defendants' interests could not be undertaken with disregard to their obligation to ensure that the Writ of Fieri Facias contained accurate instructions to the Sheriff and did not excuse the 3rd Defendants from ensuring that, at the time of issuing t11e instructions to the Sheriff, the j udgment debt was still unsatisfied. 4.3.20 It was submitted that the 1st Defendant's presence was pleaded as one of the particulars of malice in the execution of the Writ of Fieri Facias on the l51 Plaintiff. The Cou1t was referred to the learned authors of Clerk & Lipdscll on Torts < ) fo r the definition of trespass and justification thereof as follows: "Every unwarrantable entry 011. another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commandiltg the defendant to show cause qua re c/ausum querentis fregit. For every man. 's land is in the eye of the law inclosed a11d set apart from his 11eigltbours; a11d that either by a visible and material Jena, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing 011.ly itt the contemplation of law, as when one man's land adjoills to another's in the same field.'' "Justification of trespass. An entry upon the plaintiffs la11d is 11ot a trespass if it be justifiable. Justificatiott of the J82 I Pa g c I I I I I I I I I I I I I entry may be afforded either by operation of law, or by the act of tfte plaintiff or of It.is predecessors ill title, where the entry is made u11der a right of easement or of profit a prettdre, or 1111der a lice11ce and a like rule applies whe,·e persons deviate on to private land because the ow11er of such laud has obstructed a right of way adjacent thereto" 4.3.21 It was submitted that the JS1 Defendant's presence on the 1st P lain tiffs premises o ught to have been sanctioned by law or by the Plaintiff to be lawful. Furthennorc, the Plaintiffs submitted that the Garnishee Order was not in confli ct ·with Superior Courts, and until and unless a court of competent jurisdiction declared it null and void, it was valid and binding on the Defendants. 4.3.22 It was stated that while there was money owing to the 2nd Defendant in her own right it would still not make the execution of the Writ of Ficri Facias correct as it was wrongly issued and executed at the instance of both the 1s t and 2nd Defendants and nothing showed it was taken out solely by the 2nd D efendant. 4.3 .23 The Plaintiffs went on to submit that the Defendants could not claim that the Plaintiffs failed to prove their case when they had not responded to the Pla intiffs' submissions. J83 I Page I I I I I I I I I 5 LAW 5.1 It is a trite principal of law that "he who alleges must prove!). It is therefore imperative that any party that brings forward a claim against another carries the burden of such proof. They are the ones, who arc required to show why they must succeed on their claim to the requisite standasd. 5.2 In the case of Khalid Mohamed v The Attorney General <t2J the Supreme Comt held that: - "a Plaintiff must prove his case and if lte fails to do so the mere failure of the opponent's defence does not e1ttitle him to judgment." 5.3 Furthermore, in the case of Wilson Masauso Zulu v Avondale Housing Project < 13l, Ngulube, DCJ, as he then was, stated the following: "I think that it is accepted that where a plain.tiff alleges, as indeed any other case where he makes any allegations, it is generally for him to prove those a/legations. A plaitttijf wlto ltas failed to prove !tis case can11ot be entitled to judgment, whatever may be said of the oppo11e11t's case." 5.4 It's very clear from the issues raised in this matter that it has a lot o f history and one can lose. sight of the issues at play. This matter is anchored in trespass following the issuance of a Writ of Fieri Facias purpotcdJy indorscd with a wrong address and / or amid a settled j udgmcnt debt. J84 I P ag e I I I I I I I I I I I 5.5 In the case of Attorney Gener~l y E. B. Jones Machinists Lilnited ( l > , which in essence deals with a Shcrift'1s u:nmunity during execution , it was held that:- "I11 every case of ex<?Cution, all steps which may be taken therei11 shall be taken on demand of the pat·ty who issued suclt execution and such party shall be liable for any damage arising from any irregularproceedi11g taken at his instance. 5.6 Under Ordel' 45/1/14 of the Rules of the Suprc1nc Court it states as follows: ''Wrongful seizure by sheriff-· Where a sheriff, being misled by an indorsement put upon a wn't of fl. fa. by .the solidtor of tlze execution creditor, seized goods ofthe wrong person, it was held that tfte execution creditor was licihle itt .an ,JCtion oftrespass[ ... J But where there is 11otlti1tg untrue itt tlte directiotts ilt the indorsement so as to mislead the sheriff, the action is not maintainable against the judgment creditor." 5.7 At common la,v, it is an actionable trespass to set the law in motion so that the wrong pcrson 1s goods arc seized. The learned authors of Salmond on Torts <4> at page 551 states as follows: 1011 tlte same principles, it is an actionable wro,tg maliciously ' attd without reasonable a11d probable cause to issue execution against the property of a judgment debtor." 5 .8 Furthermore the learned authors of Clerk & Lindsell On Torts < \ at paragraphs 18-42, the authors take the view that damages will 185 I ra ge I I I I I I I I I I I lie for the malicious selling in motion of Court process, where for instance part of the debt has been paid : ''If a judgment debt has been satisfied without the creditors' k11owledge and he proceeds to levy execution, he may still be liable in trespass, though, in the absence of malice, he cam1ot be liable for tna/icious abuse of process. 5.9 In Halsbun-'s Laws of England (ll at paragraph 457, after stating the position where malice exists, the text states as follows : "A11 execution is also wrongful where the indorsement on a writ directs the skeriff to levy at a wro1tg address or 011 the goods of a person other than the execution debtor, or where the goods are seized under a writ of fieri facias issued after payment of the whole of the judg111e11t debtor, or after a valid tender of the amount due: i1I such case a claim fies ,,t the iltstance of the petso,r aggrieved without proof of malice, for wlten a judgment debt has been paid, the judgment is tto longer of any force or effect, a11d an execution issued under it is void." > it is stated as 5.10 At paragraph 432 of the same volume of Halsburv < follows : "The writ of execution must be indorsed by tlze person issuing it with the address agairtst whom it is issued."·. .. ..... if tlte indorsement is erroneous and the sheriff is .......... .,.. misled into seizing goods which are 11ot liable to seizureJ the solicitor who made tire iudorsement and his client are liable with trespass, but neither ....... . . is liable if the itidorsement is correc~ so that Ja6 I P Jg, I I I I I I I I I I I I I the sheriff, although he seized the wrong goods, was not misled by it. If the sheriff is misled by the ittdorseme,tt, however, and damages for a co11sequenf trespass are recovered against him, he catt mailltaitt a11 action for an indem11ity agabtst the judgment creditor. n 5.11 lt seem s from the foregoing therefore that the wrongful setting in motion of the seizure by a judgment creditor is actionable as a trespass even if malice js not shown . An action for trespass will lie if the wrong person)s goods are attached. 5.12 In the case of Morris v Salbcr~ the defendant had recovered judgment in a n action on bills of exchange against GM Morris. A writ to the sheriff to execute on h is good s was taken out by the defendant's solicitor) who endorsed the writ with the address of his father, G Mo rris resided elsewhere. T he sheriff entered the prem ises of G Morris and seized the goods. He sued for damages for trespass and wrongful seiz ure of goods. The jury expressly found that the sheriff was misled by the direction of the solicitor. The judge, it seems, then found for the defenda nt on the basis that the endorsement on the warrant did not amount to a direction to the sheriff to seize the goods of the plain tiff. In reversing this decision Lord Esher MR said: "The question in any case whether it does amount to a direction to seize tlte particular goods seized appears to be a question of fact for tlte jury or otlter tribmtal wltic!t ltas to decide t!te facts. Theref ore we lzave in tltis case something indorsed on the writ by the defendant's solidtor, by whose action itt making such 1s1 I P t1 e e I I I I I I I I I indorsem.ent the defendant is hound; and, even if it was not meant to be a direction to seize t/J.e goods seized, yet I think if it was in such a form as to mislead the sheriff into thinking that it was, the result would be the same; for, if a p erson makes a statement that may well mislead, and does, in fact, mislead, the sh.erif.f into thinking that he was directed to seize the goods seized, it seems to m e that such a statem ent renders the maker of it liable as if lte /tad intended to give such a direction." 5.13 Under Order 42 of the High Court Rules, it is clear that a Writ of Fieri Facias is lo be made in the form specified in Form H. C. Civ. 41 Sch. 1., which contains in tabulated form all the particulars required for the execution vvhich are set out in Order 42 of the High Court Rules as follows: "All property whatsoever, real or perso11al, belongi11g to a party against wltom execution is to be enforced, and whether !te!d in /tis own name or by another party in trust for him or Ott his behalf (except the wearing apparel and beddittg of himself or Iris Ja,ni/y and the tools and implements of his trade, if atty, to the value of five hundred K waclta or, in the case of a farmer, one million Kwacha) is liable to attachment and sale i1I execution of tlte decree" (tmderfined for emphasis) 5.14 Conversely from all the above in the case of Mpande Nchimunya v Ste hen Hibwani Miehe o !16> it was held as follows : J88 I P a g c I I I I I I I We wish to say from the outset tit at where a writ of execution is regularly issued and goods of a judgement debtor are seized then the question of wrongful execution or seizure does not arise. This is so even where goods of a third person in possession of a judgme11t debtor crre seized in exec11tlo11 thereof. [ ..•. ] These rules are quite specific. They 11eed 110 elaboration. We therefore agree with Mr Silweya tlzai the plaintiff ought to have taken out ittter pleader s111111110ns i11 the Mo11ze Magistrate's court where the exemtio11 was issued i11stead of bringing att action against the defettdatrt. Had he done so the matter would 110 doubt have been resolved as provided for by the rules. We wish to reiterate ltere what we said earlier on that where goods of a third person in possession of a judgement debtor are seized i,1 execution of a judgement and tlte execution is regularly issued tlte1t the seizure or executiott ca111tot be said to be wro11gful. This actio11 was therefore 11ot maitttaittahle at law" 4.15 Now in addition to the 151 and 2nd Defendant being sued the Plaintiffs have also found issue with their Defendants lawyers, hence joining them to this suit. Clearly this is so because they arc the ones that drew up the offending Writ of Fifa that led to the execution in question. Regarding liability of Counsel Meanwood Venture Ca~ital Limited ~n.!l Cai!ellaro Investntcnts Limited (Trading as Kifco Packrutillg iu Receivcrship(SCZ/8/23/2021), Chief Justice, Dr. Mumba Malila, in delivering hfa ruling cited the case of Savior Chibi a v C stal Gardeb Lode Restaurant Limited (AP. eal o. 97 /2013) where lt was observed that: J89 I P cl e e I I I I I I I I I I I I I I I "litigants whose lawyers, because of their inadequacies or lack of attention or clumsi11ess, cause loss to litigant1s case, have themselves to tha11k 11 • 5 ANALYSIS 5.1 Upon anxious consideration of the pleadings, evidence and submissions of the parties it is quite eviden t that the issues that are under co nsideration in this matter center upon hvo cardinal questions: 1) How was tire judgment executed in this matter?; and 2) What was tlte motivato11 for t!te execution of tlte judgme,tt itt the 111a1111er it was executed? 5.2 If the above questions arc answered then they will address the claims laid o ut by the Plaintiffs of wrongful execution amounting to trepass and I iability of the advocates founded in negligence. 5.3 What is not in dispule in this matter is the validity of the judgment. It is not in dipute th at the Defendants obtained a verdict in their favour even after an appeal from the Court of Appeal. Its also not in dispu te that the exparte stay that was obtained by the Plaintitls ,.vas d ischarged by the High Cou1t, following an exparte hearing . While the Plaintiffs were displeased with the manner in which the said ruling was delivered, it remains a fact not in dispute that the stay was discharged. It is also not in dispute that following the discharge of the stay of execution the Defendants, by their counsel, w ho arc the 3rd Defendants, caused to be issued a Writ of Fieri Facias, wherein it was endorsed that the add ress of execution of the same was the Head Office of the pt Jgo I 11 ;i g (' I I I I Plaintiff on Independence Avenue. Its further not in dispute that without any notice to the Plaintiffs the Sheriff proceeded to execute the Writ of Fieri Facias on the Head Office of the is1 Plaintiff. Tha t in so executing the Writ of P ieri Facias, equipment in the !51 Plaintiffs Server room was disconnected and removed. Its further not in dispute Lhat the l51 Defendant was present at the time of execution. These facts not being in dispute they are found as facts in this case. 5 .4 Clearly from the pleadings and the submissions the Plaintiff is not challenging the issue of the Writ of Ficri F acias. If that were the case the challenge ought to have been launched before the Court where the Judgment was delivered. Instead, the grievance of the Plaintiff is that the Writ of Fieri Facias \Vas wrongly iss ued and with malice thereby entitling, especially the 151 Plaintitff, damages for trespass. The position of the Plaintiffs is that the 1 si ::ed ::r:::in:;ff :~e :o :~::::'. a:: s:::~y~::c~:~;~;:; If r ' ; to / ~tingunder the face of the 1 si Plaintjff. Evidence has been placed before the Court in the form of P ACRA printouts to I demonstrate that the t\vo 1 1st and 2nd Plaintiff, are two separate persons at law. In a ttempting to show to the contrary the Defendants have attempted to demonstrate that on the face of it , the pt and 2nd Plaintiff have held themselves out as one entity, operating under the cover of the I st Plaintiff. 5.5 In answering the first question it is pretty clear that the Writ of F ieri Facias, which was drawn up by the 3rd Defendants, as J91 j P age I I I I I I I I I I I counsel for the 1st and 2nd Defendants, had been endorsed with the address of the I 51 Plaintiff. According to the evidence ofDWl, Mr Silas Mambwe, this was done under the belief that the two entities i.e. the Plaintifts had merged. However, the Planintiffs have demonstrated that the status quo at the material time was that the two were separate entities as exhibited in the unchallenged evidence of lhe PACRA printouls. Had there been some due diligence done on the part of Counsel, it would have been found tlrnt the correct p lace of execution of the writ of fieri facias was at the registered office of the 2nd Plaintiff and not the Headquarters of the ]51 Plaintiff, who were not party to the proceedings. It was the responsibility of Counsel to ensure that the Writ was execu ted on the correct party. To leave something as grave as execution of a judgment to assumptions can only attract what occurred in this case. f find that had Counsel taken due diligence to conduct a search at the Companies Registry (PACRA), which is the lawful custodian of information regarding corporate personality of an en tity, he would have found that while there was a merger of the two banks for operational purposes, the two continued to maintain their own distinct legal personalities . TherefoTe, had the desire been to levy execution on the entity that had presumably taken over the other entity, it was necessary to take the appropriate course of action to join it to the proceedings. I concur with the P laintiffs that the manner in which the Writ of Fieri Facias was executed amounted to self help measures without the blessing of the Court. T hat being the case it must be stated what this amounts to. Reference, here is made to the description of a wrongful J92 I i, ;:i e e I I I I I I I I I execution as provided for "Halsbnrv's Laws of En land Vol 7 at para. 457, cited above. There it is squarely stated that ''an execution is wrongful where the indorsement on a writ directs the sheriff to levy at a wrong address ... ". As has been found, it is clear that a wrong address was endorsed on the Writ of Pieri Facias therefore the proved facts in this case point to a wrongful execution. The case here can be distinguished from the case in Mpande Nchimw1ya v Stephen Hibwani ~fichelo, cited above. In that case it was not found that there was wrongful execution as the goods were in the possession of the judgment debtor. 5.6 Having found that there was a wrongful execution., owing to the endorsement of a wrong address by counsel, it ought to be resolved whether an action founded on trespass can be sustained. According to Order 45/ 1 / 14 of the Rules of the Supreme Court of England, where it is found that there was wrongful seizure on the part of the sheriff, having been misled by an in dorscmcnt put on a writ of fifa by the solicitor of the execution creditor, it was held that the credilor ·was liable in an action for trespass. Clearly, from the foregoing, it can be seen that an action in trespass can be sustained and it is sustained in this case. On a balance of probabilities the Plaintiffs have demonstrated that there was a case of U'espass founded on wrongful execution. 5.7 Having so found it now turns lo determine who should be held liable on the actions of the trespass and wrongful execution. Now two issues have been raised with regard to the issue of wrongful execution. The first one relates to the wrong endorsement of the J93 I P a r, e I I I I I I I I I I I address for exec ution on the writ of Fifa. The Second relates to the satisfaction of the judgment debt by the 2nd Plaintiff by payment into Comt of the full amount adjudged. Now a pronouncement has been made regaJding the wrong endorsement of the address. In relation to the payment into Court it was the evidence of the Plaintiff that the same was communicated to the Defendant by way of Notice filed into Cou1t on 30th O ctober, 2019. It is also evidence on the record that the VI rit of Fifa in issue was executed on 18th September, 20 I 9. Clearly, it can be seen that the execution took place before the pay1nent into Court. The status at the time of the execution of the Writ of Fifa, even if it was wrongly issued, was that the judgment debt was still outstanding. In that regard the judgment creditor could not be faulted for pursuing the debt owed to them. I find that there was no malice or an abuse of the process of the court in the issuance of the Writ of Fifa. In addition it is found that the 3rd Defendants are liable for the trespass and wrongful execution. Being counsel for the 1 sr and 2nd Defendants they ougbt to have taken due diligence in ascertaining the proper place of execution. From their searches, as demonstrated by their exhibits, this came too late in the day. The reasoning of the Chief Justice in the case of Meanwood Venture Ca ital Limited and Capellaro Investments Limited is adopted here. In this case a basic search at PACRA, would have saved the Defendants all this trouble. It is a basic rule in execution that a judgment debt should not be executed on a non-party to the proceedings. The Yd Defendant should therefore be held squarely liable for the claims of trespass and wrongful execution, without any malice. J94 I Pa g c I I I I I I I 5.8 Having found that the execution was wrongful> it is accordingly set aside and an order of restitution is made with regard the pt Plaintiff. Further in relation to the claims made the following is ordered that the 2"'1 Dcfendnat is liable in damages for trcpass and wrongful execution . The said damages to be assessed and paid with interest on the current lending rate as determined by the Bank of Zambia from the time of entering up this judgment. 5.9 1) Regarding the sums claimed: a. US$88,748 .34 which was paid to o the Sheriff of Zambia; and b. US$949,933.87 paid into Court 5.10 These will be paid back to the P 1 Plaintiff by the P 1 and 2nd Defendants. However, no interest is ordered on the basis that the l51 Plaintiff would have realised the sam e if the pt Plaintiff h ad lent the money to its customers in the normal course of business. 'This is because the Plaintiff has not demonstrated this loss in its evidence. While it is appreciated and accepted as notorious that Banks are in the business of lending monies and earning interest therefrom, this was a claim that should have been specifically proven by evidence of loss. Ordering such interest would be speculative in nature. 6 CONCLUSION 6.1 The questions put forth as follows: a) How was the judgment executed in this matter?; and b) W hat was the motivaton for the execution of the j95 I P age I I I I I I I I I I judgment in the manner it was executed? having been answered it is found that the Plaintiffs have succeeded on their claims against the Defendants to the exten t as stated above. 6.2 Costs are o rdered for the Plaintiffs, to be taxed in default of agree1nent. 6.3 Leave to appeal is granted. Delivered at Livingstone this 15th day ofFebraury, 2024. J96 I P ;i Ge