Dody Malaika v Roger Lufunda (2022/HP/1659) [2024] ZMHC 118 (5 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2022/HP/1659 BETWEEN: DODY MALAIKA AND PLAINTIFF ROGER LUFUNDA DEFENDANT Before Judge M. D Bowa on 5 th of June 2024. For the Plaintiff' Mr. H Munsanje of H Munsanje & Co For the Def end ant: In person RULING Authorities referred to: 1. Mwinga and Another v. Zanaco SCZ Judgment No. 51/2014. 2. Diana Lason v. Brett Stack, Newlyn PLC (2018) EWCA Civ 803. 3. Order 36 r 9 of the High Court rules Cap 27 of the Laws of Zambia 1.1 The defendant applies for the payment of the judgment sum in installment by summons dated 20 th March 2024. He also applied for an exparte order for a stay of execution of the judgment dated 1st March 2024 pending the hearing of the application for payment of judgment sum in installments. The order granting the stay pending interparties hearing was granted on the 23 rd of April 2024. R1 1.2 In an amended affidavit in support of the application dated 30th April 2024, the judgment debtor avers that he is desirous of liquidating the judgment sum but is unable to pay it as a lump sum as he is unemployed and provider for his family of four. He proposes to liquidate the judgment sum in monthly installments of klSOO commencing May 2024 subject to an upward adjustment when funds become available. 1.3 He discloses that he was successful in a suit involving 81 other litigants that was before the Supreme Court. Further that an assessment hearing was held on 17th April 2024 in the Industrial Relations Division to be followed through with written submissions expected to be filed before the end of June 2024. • 1. 4 The funds he is expecting relate to his pension from Zanaco which he asserts is substantial and will be in a position to clear the debt once paid. He averred further that he is a retiree and depends on income as set out below. 1. NAPSA- K2859 2. Zambian State Insurance- K2556 R2 1.5 In a combined affidavit in opposition for the stay of execution of judgment and payment of judgment sum in installments dated 3 rd May 2024, the Plaintiff avers that the claim in this action was for money had and received by the Defendant in a failed contract of sale for a piece of land. That prior to the commencement of this action the Defendant had admitted owing the sum of KlS0,000 and promised to pay the money in installments commencing 28 th July 2020 and to conclude before 31st January 2022. He did not fulfill that promise. The agreement was exhibited "DMl." 1.6 The Plaintiff contended that the Defendant cannot and should not attach the payment of the judgment sum to his purported challenges after he had expended the money paid to him under a failed agreement. In addition, that the Defendant had from April 2021, not shown any willingness or seriousness to discharge his indebtedness to the Plaintiff. 1. 7 He therefore found it preposterous for the Defendant to now ask the court to grant him a prayer to pay the judgment debt in 100 monthly installments. In addition, that the Defendant has not exhibited the means in which he proposes to pay for R3 • • f 1. 9 When asked by the court what period 1n installments payments if any would be acceptable , Mr. Munsanje stated that his client may be willing to consider payments not exceeding 6 months. 1. 10 In reply the Defendant maintained that he would only be able to pay after the assessment has been done. Court's Consideration 1. 11 I have carefully considered the application before me . Order 36 rule 9 of the High Court Rules Chapter 27 of the Laws of Zambia gives discretion to the court for sufficient reason to allow a judgment debtor to pay a judgment sum 1n installments. The rule provides that: • "9. Where any judgment or order directs the payment of money, the Court or a Judge may, for any sufficient reason, order that the amount shall be paid by installments, with or without interest. The order may be made at the time of giving judgment, or at any time afterwards, and may be rescinded or varied upon sufficient cause, at any time. The order shall state that, upon the failure of any installment, the whole amount remaining unpaid shall forthwith become due." 1. 12 In Mwinga and Another v. Zanaco 1 , the Court highlighted the importance of payment in installments being made within a RS ' reasonable time frame. In a fairly recent English decision of Diana Lason v. Brett Stack, N ewlyn PLC2 , the Court observed that 1n a case where the judgment debtor cannot really afford to pay anything towards a costs order, it could not interfere with judgment creditor's right to seek enforcement of the judgment by whatever means that are available to them. The Court went further to hold that: "For the court to grant an installment order, it must be presented with a realistic repayment schedule backed up by evidence that the creditor can be expected to receive the amount of principal and interest within a reasonable period of time." 1. 13 I wholly adopt the reasoning and the conclusion in the Lason case that the interests of the judgment creditor are perhaps more important than the judgment debtor in such matters. • That therefore, the courts must be unwilling to interfere in a judgment creditor's ability and desire to seek enforcement of a judgment by whatever means possible. 1. 14 Aside from bemoaning what he professes to be his low income and averment of his obligation to look after his family, the Defendant presents no compelling evidence of how he R6 . f proposes to pay the judgment sum. The Defendant's sense of alarm at the prospect of the judgment sum being paid in the proposed K 1500 monthly installments is understandably justified under the circumstances as this would translate into about a 100 month wait to receive full payment. This is neither a reasonable time frame nor do I find it an unacceptable proposal. 1.15 The Defendant makes reference to a Supreme Court judgment in his favour by which he expects to be paid a substantial sum that will settle the debt after assessment. He has not exhibited the judgment. Mr. Munsanje graciously intimated a willingness to accept installment payments not exceeding 6 months. This I find, is the only window that can be availed to the Defendant in the circumstances of this case. 1.16 Conclusively therefore, I am not satisfied that sufficient basis has been advanced to persuade me to grant the relief sought in the amounts and length of time proposed. I would however allow the Defendant to pay in six six(6)equal monthly installments commencing 30th of June 2024. In the event of failure to pay any installment the whole amount outstanding R7 I shall become due and the Plaintiff will be at liberty to enforce his judgment by whatever means available to him including and not limited to the issue of writ of fifa. 1.17 Costs for this application are for the Plaintiff to be taxed in f;,/T(___ Dated at Lusaka the ......................... day of ....................... 2024 :::I U r-iZ...__ default of agreement. • JUDGE R8