Als Capital Limited v Beatech Enterprises Limited and Anor (2024/HPC/0258) [2024] ZMHC 185 (22 July 2024)

IN THE HIGH COURT OF ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2024/HPC/0258 IN THE MATTER OF IN THE MATTER OF IN THE MATTER OF IN THE MATTER OF BETWEEN: ALS CAPITAL LIMITED AND ORDER XXX RULE 14 OF THE HIGH COURT RULES, CHAPTER 27 OF THE LAWS OF ZAMBIA. ORDER 88, RULE 1 OF THE RULES OF THE SUPREME COURT OF ENGLAND, 1965 (1999 EDITION) AS CONTAINED IN THE WHITE BOOK. AN EQUITABLE MORTGAGE OVER STAND NO. S/LUSAK/SLN_0031/7882- 628 SQUARE METRES, LUSAKA AND STAND NO. S/LUSAK/SLN_0031/5013- 586 SQUARE METRES LUSAKA IN THE LUSAKA PROVINCE OF THE REPUBLIC OF ZAMBIA. OF STAND FORECLOSURE, POSSESSION AND SALE NO. S/LUSAKA/SLN_0031/7882-628 SQUARE METRES LUSAKA AND STAND S/LUSAK/SLN_0031/5013-586 NO. SQUARE METRES LUSAKA IN THE LUSA PROVINCE OF THE REPUBLIC OF Z M Ci Ci JguR.r OF ZA .r::. Rrf_~A~irv,s:: l:.;_!UL 2024 ~ R.fGisr, .... ·· '7J._<...l APPLICANT P.o. 80 , .. ~6 Ry !X .:J005 ~ -- 7, lUsA!(A .... BEATECH ENTERPRISES LIMITED ALLAN NGWEWA lBT RESPONDENT 2Nn RESPONDENT Delivered extempore before the Honourable Mrs. Justice Mwenda-Zimba on the 22nd day of July, 2024. For the Applicant For the 1•1 Respondent For the 2 nd Respondent Mr. M. Nahshuwa of Mulenga Mundashi Legal Practitioners Mr. P. Ng'ambi of OMM 13anda & Company In person JUDGMENT Case referred to: Colgate Palmolive {ZJ Inc v. Able Shemu Chuka & Others, Appeal No. 181 0[2005. 1.0 INTRODUCTION 1.1 The applicant commenced this matter by Originating Summons for payment of outstanding loan amounts and foreclosure. 1.2 The 2 nd respondent does not deny that the loan was obtained. He states that the 1st respondent went away with all the money therefore it should pay. 1.3 The 1st respondent also does not deny obtaining the loan. It states that the applicant only advanced ZMW686,702.34 and not the sum of ZMW850,000.00. That it purported to deduct the remainder of it in unexplainable hidden charges not brought to the notice of the respondent. Further, that the interest of 60% per annum is unconscionable. 2.0 CONSIDERATIONS, FINDINGS AND CONCLUSION 2.1 I have considered the Originating Summons, the parties' affidavits oral and written arguments and authorities cited. J2· 2.2 I have reviewed the documents exhibited to the parties' respective affidavits. 2.3 I note exhibit "RSMI" to the affidavit in support which is a facility letter signed by Beatrice Chisanga on behalf of the 1st respondent and the 2nc1 respondent signed himself. According to clause 3 of th~ R:li<i ln8n fa~iHty, the parties agreed that interest rate would be at 60% per annum. I, therefore dismiss the 1st respondent's contention in this regard. 2.4 As regards the unexplained charges, l note that in clause 4 of the same agreement, the parties agreed that 5% of the transaction value would be paid upfront as loan management fee. 5% of ZMW850,000.00 is ZMW42,500.00. It was also agreed that ZMWS00.00 would be paid as a disbursement fee. 2.5 Apart from the above, exhibit "RAKl" to the affidavit in opposition shows a payment voucher. It was signed by the 1st respondent. It shows deduction of ZMW42,500.00 as loan management fee, ZMW70,297.66 as ALS Capital loan repayment No. 1162 and Jepro Consultancy fee of ZMWS0,000.00. Exhibit "RSI" to the affidavit in reply is a letter from the 1st respondent requesting that ZMWS0,000.00 be paid to Jaypro Capital Limited. A total of all these payments or J3 deductions from the loan amount is ZMW163,297.66. When this runount 1s deducted from the loan amount of ZMW850,000.00, the balance is ZMW686,702.34 which was the amount paid to the 1st. respondent. 2.6 As regards the 2nd respondent's defence, I note that exhibit "RS2" to the affidavit in reply is a letter of consent to the use of his two properties S / LU SAK/ SLN_0031 /7882 and S/LUSAK/SLN_0031/5013. He agreed to the use of his two properties. 2.7 From the above, it is clear that both respondents agreed to be bound by the terms of the agreement. See: Colgate Palmolive (Z) Inc v. Able Shemu Chuka~_Others Appe_c1I No.181 of2005 on the effect of signing an agreement. 2.8 As regards the outstanding sum, I note from the statement that it does not show the figure claimed as at 6th March, 2024 of ZMWl,039,596.00. 2.9 I note that the figure as at 31 st January, 2024 is ZMWl,010,436.94. However, this statement has an income rate of 60% and another interest of 5<% which is not clear. Therefore, I am not able to tell the amount due as a result. The above -J4- notwithstanding, there is no dispute that the respondents defaulted and are owing. What is not clear is the amount due. 2.10 From the above, I find that the applicant has proved its case on a balance of probabilities. 1, accordingly enter Judgment in its favour. However, I order 1.hat. the amount due be assessed by the Registrar of this Court. 2.11 The amount assessed shall carry interest at the contractually agreed rate of 60% per annum from date of Writ to date of assessment and thereafter at the current bank lending rate as determined by the Bank of Zambia until full payment. 2.12 I order that the Judgment sum plus interest be paid within 90 days from date of assessment failing which the applicant will be at liberty to foreclose, repossess and sale the mortgaged properties being Stands S/LUSAK/SLN_0031/7882 and S /LU SAK/ SLN_0031/5013 Lusaka. 2.13 I award costs to the applicant. against the respondents. These are to be taxed in default of agreement. Dated at Lusaka this 22nd day of July, 2024. ········~················p K. E. Mwenda-Zimba HIGH COURT JUDGE -JS-