Dominic Twinjika v Barbara Hatoongo Moyo Twinjika (2020/HP/D/F/299) [2025] ZMHC 14 (20 March 2025)

IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BLIC Ci.. ·11co. Rlo "PAL 2020/HP/D/F/299 BETWEEN: DOMINIC TWINJIKA AND • BARBARA HATOONGO MOYO TWINJIKA 20,5 ~ ---·~~ 5;,..'f. J". PETITIONER RESPONDENT BEFORE THE HONOURABLE MR. JUSTICE S. V SILOKA ON THIS 20TH DAY OF MARCH 2025. For the Petitioner: Mr. N. Bota and C. Maluza from Messer's Makebi Zulu & Advocates For the Respondent: Mr. W. C. Kayope and Ms. N. Mwilafrom Messer 's Simeza Sangwa & Associates COMBINED RULING CASES REFERRED TO: 1. LC and DK Limited (In Receivership) Vs Lovemore Chikuni CAZ/ 08/ 409/2 020; 2. NFC Mining Plc Vs Techpro Zambia Limited (2009) ZR 236; 3. Lizzy Musauka Vs Mpasi Dube SCZ Judgement No. 64 of 2019; 4. Maureen Muyoba Vs Godwin Muyoba 2018 Z. R; 5. Isaac Tantameni C Chali (Executor of the will of the late Mwalla Mwalla) Vs Liseli Mwala (Single Woman) 1997 ZMSC 39; 6. Peggie Zule (Suing as administrator of the estate of the late James Zule) Vs Lucia Kamanga Makina and Walter Mununga Kangai 2017 HPF/ 0036; 7. Chola Chakonta, Agness Nyondo Chakonta and Administrator of the estate of Patrick Malaya 2015/ HP/2447; 8. Lynch Vs Segal (2006) Can LII 42240(ONCA}; 9. Watchel Vs Watchel (1973) 1 ALL E. R 113; 10. Sanikonda Phiri vs Elestina Zulu (2008) HP A 70; 11. Lysaght Vs Edwards (1876) 2 CH D 499; and 12. Chibwe Vs Chibwe 2001 Z. R 1. LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Lands and Deeds Registry A ct Chapter 185 of the Laws of Zambia; 2. The Black's Law dictionary, 9th ed 2009; 3. The Rules of the Supreme Court of England 1999 Edition (White Book) 1965; and 4. The High Court Act Chapter 27 of the laws of Zambia. 1.0. INTRODUCTION 1.1. This Ruling shall encompass two applications. The First application being the Plaintiffs application for an Order to set aside Writ of Possession for irregularity which was commenced by summons accompanied by an Affidavit in Support and skeleton arguments of even dates. 1.2. The second Application is the Respondent's Application to vest property No. F/378a/ B/435 (the party's matrimonial home) and Mercedes Benz C-Class, registration No. BAL 7304 commenced by summons accompanied by an affidavit in support and skeleton arguments all dated 30th March 2022 . 2.0. PETITIONERS AFFIDAVIT EVIDENCE IN SUPPORT 2.1. The Affidavit in Support was deposed to by Dominic Twinjika who deposed that he is the Petitioner herein therefore competent to -R2- depose this Affidavit. He deposed that this matter was commenced in 2020 for dissolution of marriage. 2.2. The Deponent deposed that on 25 th March, 2022 this Honourable Court delivered a Judgement wherein the Respondent was given a property in Salama Park among other Orders. 2.3. The Deponent also deposed that on the 30th of March 2022, he filed an application to stay execution of the Judgement delivered by the Court, and an Order dated the 6 th April, 2022 was granted by the Court staying the execution of the Judgement. 2.4. The Deponent further deposed that he is aware that the Respondent filed a Writ of Possession on the 20 th of September, 2022. That the property subject of the Writ of Possession is subject to a Stay and does not belong to the Petitioner but belongs to one Suzen Ngweshi, the Petitioner's late Mother. 2.5. Further that he is advised by Counsel on record that the Respondent ought to have discharged the Order of Court dated the 6 th April, 2022 before making any further steps in the matter and that the Respondent cannot take out a Writ of Possession on a property that does not belong to the Petitioner. 2.6 . It was the Deponents further deposition that he 1s advised by Counsel that the Writ of Possession taken out by the Respondent -R3- ought to be set aside for irregularity and that no prejudice will be occasioned to the parties by this application if granted. 3.0. PETITIONERS SKELETON ARGUMENTS IN SUPPORT 3.1. In support of the application, Counsel for Petitioner submitted that this application is made pursuant to Order 2 Rule 2 of the Rules of the Supreme Court of England 1999 Edition (White Book) 1965 which provides thus: "An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, Judgement or Order therein shall not be allowed unless it is made within a reasonable time before the party applying has taken any fresh step after becoming aware of the irregularity." 3.2 . It was Counsel's submission that this application to set aside the writ of possession for irregularity has been made within reasonable time and no fresh step has been taken. 3.3. Counsel referred the Court to Order 45 Rule 3(2) and (3) (a) of the Rules of the Supreme Court of England (white Book) 1965 which provides that: "3. Enforcement of judgment for possession of land (2) A Writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without leave of the Court except where the Judgement or -R4- Order given or made in a mortgage action to which Oder 88 applies. (3) such leave shall not be granted unless it is shown: (a) that every person in actual possession of the whole or part of the land has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the court for any relief to which he may be entitled, ,, an ... d 3. 4 . Counsel further referred the Court to the case of LC and DK Limited (In Receivership) Vs Lovemore Chikuni (1l wherein the Court stated that: "The rationale for seeking leave is to ensure that the person in actual possession of the land subject of the mortgage being enforced, is made aware of the proceedings and availed an opportunity to seek any relief from the Court to which he may be entitled to .. . Our view is that the above power did not entitle the 1st Appellant to arbitrary issue a writ of possession without obtaining leave of court. The 1st Appellant ought not only notify the Respondent of the proceedings but sought leave to issue a writ of possession by instituting foreclosure proceedings against the mortgagor of the property." 3.5. It was Counsel's position that as the record will show the Applicant proceeded to enforce judgement in breach of the law as they omitted to obtain leave before issuing a writ of possession. -RS- 3.6. Counsel further drew the Courts attention to the case of NFC Mining Plc Vs Techpro Zambia Limited 12 l wherein the Court warned that failure to comply with court rules by litigants could be fatal to their case and that Rules of Court are intended to assist in the proper and orderly administration of justice and as su ch must be strictly followed . 3. 7. Counsel also submitted that the Petitioner is not even the owner of the property subject of the writ of possession, and the Court will note from the record that the owner of that property is one Suzen Ngweshi and not the Petitioner as confirmed by the Ministry of Lands Printout. 3.8. Counsel submitted that the Court should take Judicial Notice of the fact that entries in the Lands Register show Suzen Ngweshi as the owner and the same appears on the Certificate of title. Further that it is trite law that title is conclusive evidence of ownership of land and it extinguishes all other rights in the land, this is as per Section 33 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia. 3.9. It was Counsels prayer that this Honourable Court sets aside the Respondents Writ of possession for irregularity. - RG- 4 .0 . RESPONDENT'S AFFIDAVIT EVIDENCE IN OPPOSITION 4.1. The Affidavit in I Opposition was deposed to by Barbara Hatoongo Mayo Twinjika, who deposed that she is the respondent herein therefore competent to depose to this Affidavit. She deposed that on the 13th of May, 2021 this Honourable Court granted the Petitioner a decree Nisi for divorce and referred the issue to property settlement to the District Registrar Honourable D. Simusamba, who delivered a judgment on the 25th of March 2022 awarding the Respondent Plot No F /378a/ B /435 (the party's matrimonial home) and Ordered the Petitioner to transfer or register the said property in the Respondent's name. 4.2. The Deponent deposed that the Matrimonial home was bought in 2019 during the subsistence of their marriage and was pending issuance of Certificate of title. That after commencement of the Divorce proceedings in 2020, the Petitioner fraudulently had the Certificate of title issued in Suzen Ngweshi's name. 4.3. That after Judgement the Petitioner filed an application to set aside Judgement and to stay execution of the Judgement. Further that the Petitioner filed an Ex-parte application to stay execution of the Judgement but the application was not granted by the Court and neither was the said application given an Inter-parte date of hearing. -R7- 4.4. The Deponent deposed that on the 20th of September, 2022 , she issued a Writ of Possession against the Matrimonial property and while execution was taking place the Petitioner's Advocates contacted the Deponents Advocates to stop the execution so that the matter could be discussed amicably, however, the discussions failed. 4.5. It was the Deponent's deposition that on the 8 th of February, 2023, her Advocates were served with an order staying execution of the Judgement dated 6 th April, 2022. It was the Deponent's deposition that the said Order appeared for the first time and yet it purports to have been granted more than a year before execution. 4.6. Further that the Deponents Advocates had conducted several searches on the Court files, and at no point was there any record of an order staying execution of Judgement, neither does the said order appear in the Courts electronic system. 5 .0. RESPONDENT'S SKELETON ARGUMENTS IN OPPOSITION 5 .1. In opposing the Application, Counsel for the Respondent ref erred the Court to Order 45 rule 3 (2) of the Rules of the Supreme Court of England 1965 edition (White Book). It was Counsel's submission that the Petitioner contends that the Writ of Possession was irregularly issued because the Respondent did not seek leave to issue the said writ. -R8- 5.2. It was Counsel's submission that the rationale for leave to be issued as per Order 45 rule 3 (2) (3) is to ensure that the person in actual possession of the property is made aware of the proceedings and availed an opportunity to seek any relief from the Court which he may be entitled to. It was submitted that there was no need to seek leave herein as leave to issue the writ of possession was entrenched in the Judgement of the learned District Registrar, as the Judgement vested the right to take possession of the property without notice. 5.3. Counsel referred the Court to the case of LC and DK Limited (in receivership) and Another Vs Lovemore Chikuni Chiyanta. 1 1 wherein the court held that: "Before determining whether the writ of possession was irregularly issued warranting the setting aside by the court below, we must ascertain whether the respondent was aware of the proceedings between the 1 st and the 2 nd appellant. The said proceedings sought specific performance of the sale of subdivision C of S/S No.30 of Farm No. 397 Lusaka ... in our view, the respondent was not aware of these proceedings which culminated into consent judgement for the possession of property belonging to the respondent pledged as security for a loan. -R9- The Court further stated that: "The essence of justice entails that a person cannot be liable for an order or judgment unless he had been given fair notice of the proceedings to enable him appear and defend himself." 5.4. It was Counsel submission that the Petitioner herein had actual notice of the proceedings that vest the matrimonial home in the Respondent, therefore there was no need for leave before issuing the writ of possession. 5 .5 . It was Counsel's submission that the Ex-parte order staying execution is null and void as it was issued after the Learned Deputy Registrar had seized to have jurisdiction. Further that this Order did not exist until 8 t h February, 2023 when it mysteriously appeared. 5.6. With regards ownership of the Matrimonial home, he submitted that while a Certificate of Title is conclusive proof of ownership, the property in question is a family property. 5 .7. Counsel referred the Court to the case of Lizzy Musauka v Mpasi Dube(31 wherein the Supreme Court held that: "As long as the property qualifies to be family property, the actual legal title in the Capital asset is not a material consideration. Whether the house is registered in the wife's name or not is not a determinative factor anymore than it would be if the house was registered in the -RlO- husband's name. what the Courts look at is the totality of the family asset." 5.8. It was Counsel's submission that Plot No. F/378a/B/435, the Matrimonial home, is considered to be a family asset acquired during the subsistence of the marriage with the intention that it would be for the use and benefit of the family. 5.9. Counsel further drew the Courts attention to the case of Maureen Muyoba v Godwin Muyoba 14l where the Court stated thus: "Suffice to note that that the position of the law on property adjustment after divorce is settled in this country following the landmark case of Chibwe v Chibwe. The Courts will not tolerate any kind of shrewdness when it comes to property settlement and any change of ownership of property solely intended to deprive one party upon dissolution of marriage will have no effect on property settlement proceedings." 5.10 . Counsel submitted that the contract of sale for the Purchase of the said matrimonial house was executed in 2019 and the issuance of the Certificate of Title was only done in 2021 after the property settlement hearing. It was Counsel's submission that the Petitioner with the intention to deprive the Respondent of her entitlement fraudulently had the property registered in his mother's name. -Rll- 6.0. AFFIDAVIT IN REPLY 6.1. The Affidavit was deposed to by Dominic Twinjika, the Petitioner herein. He deposed that on the 30th of March, 2022 he instructed his Lawyers Messer Siwale & Lisimba Advocates not to transfer the plot in contention because it belongs to Suzen Ngweshi and not him. 6. 2. The Deponent deposed that his Advocates later made an application to set aside judgement dated the 25th March, 2022 on the ground that the property did not belong to the Petitioner. 6.3. It was the Deponents deposition that he has never been charged with the offence relating to fraud of Plot No F /378a/ B /435. However, he is aware that the said property was offered to his late mother Suzen Ngweshi and that the said property has never vested in his name to subsequently issue the Certificate of Title in the mother's name. 6.4. Further, the Deponent deposed that the Order to stay execution dated 6 th April, 2022 was not served on the Respondent because the file was missing and when it was found the Respondent was served with the said Order. -R12- 7 .0 . SKELETON ARGUMENTS IN REPLY 7. 1. In support of the Application, Counsel submitted an argument that was a rehash of what had already been submitted in the skeleton arguments in support. 7.2. However, Counsel added 1n his submission that any Order declining to set aside the Writ of Possession in issue against the late Suzan Ngweshi's property is wrong as this Court will be deciding against the interest of a party who has not been given an opportunity to be heard, Counsel's submission was as per Isaac Tantameni C Chali (Executor of the will of the late Mwalla Mwalla} v Liseli Mwala (Single Woman}51. 7 .3. It was Counsel's submission that the Respondent did not therefore seek leave to issue the Writ of Possession as the owner of the property was not made aware of the proceedings. 7.4. With regards the Respondents submission that the Petitioners recourse lies in an appeal instead of this application, Counsel for the Petitioner submitted that a judgment not heard on the merit (default Judgement) can be set aside and matters can go on appeal where they have not been heard on the merit in the courts below, hence the reason why the Petitioners recourse not laying in an appeal. -R13- 8 .0 . AFFIDAVIT IN SUPPORT OF SUMMONS FOR A VESTING ORDER 8.1. The Affidavit was deposed by Barbara Hatoongo Mayo Twinjika. She deposed that by the Judgment dated 25th March 2022, the Court awarded her among other things property No F / 378a/ B / 435(the party's "matrimonial home") and Mercedes Benz C-Class registration No BAL 7 304. 8 .2. The Deponent deposed that she is advised by her advocates that a demand was made to the Respondent to execute documents of conveyance transferring ownership of the house and the car to her. 8.3. Further, that the Respondent in defiance of the judgement has refused and neglected to effect the property transfer. That she has been advised by her advocates to obtain a vesting Order from this Honourable Court to vest ownership of the Matrimonial property and the Motor Vehicle in the Applicants name. 9 .0. SKELETON ARGUMENTS IN SUPPORT 9.1 . In support of the Applicants application, Counsel referred the Court to The Black's Law dictionary, 9 th ed 2009 which defines vesting order as follows: "A Court Order passing legal title in lie u of a legal conveyance." -R14- 9.2. Counsel further referred the Court to Section 14 of the High Court Act Chapter 27 of the laws of Zambia which states thus: "Where any person neglects or refuses to comply with a judgement or order directing him to execute any conveyance or other document or to endorse any negotiable instrument, the Court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contact document or instrument so executed or endorsed shall operate and be for all purposes availed as if it had been executed or endorsed by the person originally directed to execute or endorse it." 9.3. It was Counsel's submission that the provision above clothes the Court with power to grant a Vesting Order in circumstances where a party neglects or refuses to comply with a judgement or order of the Court specifically requiring that party to execute a conveyance. Further that for this order to be granted there must be a prior judgement or order of the court on which such an application is premised. 9.4. Counsel submitted that in casu, there was a Judgement passed on the 25 th March 2022 which ordered that ownership of the matrimonial property and the car be transferred to the applicant. -RlS- The Respondent has not adhered to the Judgment, therefore this application is properly before this Court. 9.5. Counsel also referred the Court to the case of Peggie Zule (Suing as administrator of the estate of the late James Zule} Vs Lucia Kamanga Makina and Walter Mununga Kangai 161 where the court held: "For this section to be invoked, there must be neglect or failure by a party to comply with a Judgment or order issued by a court of competent jurisdiction." 9.6. It was Counsel's submission that this is a proper case for this Honourable Court to grant a vesting order to enable the applicant to enjoy the fruits of the judgement without any further recourse to the respondent in casu. 9.7. Counsel submitted that a Vesting Order is also utilized by the Court in family law disputes where it is often unlikely that there will be an amicable or mutual transfer of property. To buttress this point Counsel referred the Court to the case of Chola Chakonta, Agness Nyondo Chakonta and Administrator of the estate of Patrick Malaya 171 where the Court stated that: "In other contexts, a Court may grant a vesting order where it has determined that a trans/ er of title is appropriate but due to the nature of the legal proceedings, it is unlikely that an actual conveyance of -R16- title can be effected on a consensual basis. This situation may arise in contentious family law disputes over property or where a party's beneficial ownership is disputed. " 9.8. It was Counsel's submission that in the Canadian case of Lynch Vs Sega'll8l the Courts granted a vesting order transferring property to a spouse in order to satisfy previous Court order. It was Counsels submission that courts observed that in family law disputes, a vesting order was essentially an enforcement order. 9.9. It was Counsel's further submission that the applicant has been granted the matrimonial property and the car. The applicant's application before this Court is therefore a means of enforcing the Judgement which granted her the said properties because of the Respondents refusal and neglect in effecting a transfer of ownership. 10.0 . HEARING 10.1 . The matter came up for hearing on the 27th of February, 2025. At the Hearing, Counsel submitted that they would be relying on the documents on record. 11.0. ISSUES FOR DETERMINATION 11 . 1. The following issues have been framed for determination: -Rl 7- i. Whether or not the land in question is Jami ly property subject to property settlement? ii. Whether or not leave to issue the Writ of possession was required in the c ircumstances of the case? iii. Whether or not the Writ of possession is irregular on grounds that it was issued on a property subject to a stay of execution and belongs to a third party? iv. Whether or not a Vesting Order should issue in favour of the Respondent in this case? 12 .0 . ANALYSIS AND DECISION 12. l. I have considered the affidavit evidence adduced by both parties and the competing skeleton arguments filed into Court. i) Whether or not the land in question is family property subject to property settlement? 12.2. The beginning point is to define what family property or family assets are, the case of Watchel Vs Watchel(9l is the main case in point wherein the Court stated thus: "Family assets are items acquired by one or the other or both parties married with the intention that these should be continuing provision for them and the children during their joint lives and should be for the use, for the benefit -R18- of the family as a whole. Family assets include those capital assets such as matrimonial home, furniture and income generating assets such as commercial property. " 12.3. This Position was reaffirmed in the case of Sanikonda Phiri vs Elestina Zulu 110i where the Court held that: "I have already stated elsewhere in this Judgement that on the basis of the case of Musonda and Chibwe(supra) cases, family assets have been defined as including things acquired by one or the other or both parties with the intention that they should be continuing provision for them and their children during their joint lives and use for the benefit of the family as a whole." 12.4. Clearly from the definition above, all property acquired for the benefit of the family such as the matrimonial home are family property. By this definition I find no difficulty in finding that the matrimonial house in question is family property. 12.5. However, the story does not end there, the Petitioner insists that the property does not belong to him but to his late mother Susen Ngwenshi. As such, it cannot be said to be family property subject of property settlement and no writ of possession ensuing from such property settlement can be enforced on this property. The Respondent on the other end disagrees and argues that the property was in fact purchased by the Petitioner and the title was -R19 - only procured in the mother's name to defeat the Property Settlement Order. 12.6. I have carefully examined the competing arguments and the affidavit evidence on which the arguments are founded. I note that the Respondent has shown a contract of sale relating to the house and the same does not in any way mention the Petitioner's mother or contemplate that the property is being acquired on her behalf. On the other hand, the Petitioner has exhibited an offer letter and argues that the property was offered to his mother. 12.7. Upon examining the two competing positions I am persuaded by the Respondent that the Petitioner had acquired the property for the benefit of the family as per the Contract of sale. I am persuaded in so holding by the case of Lysaght Vs Edwards (111 in which JESSEL, MR had this to say at page 506 of the report; " ......... the moment you have a valid contract for sale the vendor becomes in equity a tntstee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase money, a charge or lien on the estate for the security of the purchase money, and a right to retain possession of the estate until the purchase money is paid, in the absence of express contract as to the time of delivering possession". -R20- And further that; "It must, therefore, be considered to be established that the vendor is a constructive trustee for the purchaser of the estate from the moment the contract is entered into". 12.8. From the above, it is clear that from the 16th of September, 2019 the property belonged to the Petitioner and the vendor was merely a constructive trustee for the Petitioner. The Petitioner therefore cannot be heard to argue that just because there was an offer letter of sorts then he acquired no rights to the property as the offer was sent to his mother. 12.9. Further, the property settlement was commenced on 22nd April, 2021 and the Petitioner did not at that point raise the issue of ownership of the property in his arguments or evidence at the property settlement proceedings. It is only after the property settlement had been concluded and the matter was pending judgment that the title is issued in the Petitioner's mother on the 2nd of June, 2021. 12.10. This sequence of events herein shows a lack of a clear explanation of how a property where a Contract of sale was between one Chibwe Mubanga and the Petitioner ends up with a title in the name of the Petitioner's mother. Rather it reveals that the title was processed in the mother's name to frustrate the enforcement of the -R21- property settlement. To this end the Supreme Court's guidance in the case of Chibwe Vs Chibwe 1121 is instructive where the Court stated thus: "We also hold the view that all properties which were listed at pages 40 to 4 7 be longed to the respondent and that those which were transferred during the proceedings to AMC Contractors, a company owned by the respondent, cannot escape the order of this court as the trans/ er of such properties must have been done to avoid the outcome of these proceedings. In our view those transfers have no effect on our order." 12.11. Similarly, I am persuaded by the reasoning of my Learned sister Judge Maka in the case of Maureen Muyoba Vs Godwin Muyoba{ 4l which is instructive when the Court stated thus: "Suffice to note that the position of the law on property adjustment after divorce is settled in this country following the landmark case of Chibwe v Chibwe. The Courts will not tolerate shrewdness when it comes to property settlement and any change of ownership or property solely intended to deprive a party upon dissolution of marriage will have no effect on property settlement proceedings." 12.12. Coming to the facts of this case it is clear to me that the Petitioner registered title in the name of his mother as an afterthought and -R22- as a means of ensuring that the mat rimonial house escapes consideration during proper ty settlement. Consequently, I find that the matrimonial house is property liable to property settlement in this case and an enforcement order can b e issued against it. ii. Whether or not leave to issue the Writ of possession was required in the circumstances of the case? 12 .13. Order 45 Rule 3(1)(2) of the Rules of the Supreme Court of England (White Book) 1999 edition provides thus: "3. Enforcement of Judgment for possession of land: (1) Subject to the provisions of these rules, ajudgement or order for the giving of possession of land may be enforced by one or more of the following means, that is to say- a) Writ of possession ... (2) A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without the leave of the Court except where the judgement or Order was given or made in a mortgage action to which Order 88 applies." 12. 14. Further the explanatory notes under Order 45 / 3 / 1 of the Rules of the Supreme Court of England (White Book) 1999 provides for the effect of the Rule in the following terms: "Effect of Rule: -R23- Under this rule, leave is required in all cases to enforce a judgment or order for the giving of possession of land except in a mortgage action to which 0. 88 applies or an order for possession under order 113." 12.15. From the above provisions it is clear that a litigant cannot issue a writ of possession without leave of Court unless the action is a mortgage action or it is an action for possession under Order 113 of the White Book. 12. 16. The Respondent has argued that the rationale is to put one on notice to allow them defend themselves and the rationale having being fulfilled leave was not necessary and this argument seems to be anchored on Order 45 Rule 3(2). I am not persuaded by this argument as the order they seek to rely on as providing the rationale, in fact provides for the consideration to be considered in granting leave. It in effect applies where an application for leave has been made. 12. 1 7 . In view of the foregoing, I find that the Writ of Possession having been issued without the requisite leave of Court is irregular, I accordingly set it aside for irregularity. In finding as I have, the third issue relating to whether the Writ of Possession is irregular because it was issued on a property subject to a stay of execution -R24- has been rendered otiose. I shall now proceed to the fourth and final issue relating to the vesting order. iii. Whether or not a vesting order should issue in favour of the Respondent in this case? 12.18. Section 14 of the High Court Act Chapter 27 of the Laws of Zambia provides that: "Where any person neglects or refuses to comply with a judgement or order directing him to execute any conveyance or other document or to endorse any negotiable instrument, the Court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contact document or instrument so executed or endorsed shall operate and be for all purposes availed as if it had been executed or endorsed by the person originally directed to execute or endorse it." 12. 19. According to The Black's Law Dictionary 9 th edition 2009 a vesting order is defined as: "A court Order passing legal title in lieu of a legal conveyance." 12.20. Further in the case of Peggie Zulu (Suing as Administrator of the Estate of the late James Zulu) v Lucia Kamanga -R25- - --- -- - -- - - - - - - - - - - - - - - - - -- - -- -- - - Makina and Walt er Mununga Kangail61 Honourable Judge Sharpe Phiri had the following to say on section 14: "The preceding section empowers a court to nominate another person to execute instruments where there has been neglect or refusal to comply with a Judgement or Order of the Court. For this section to be invoked there must be neglect or failure by a party to comply with ajudgement or Order issued by a Court of competent Jurisdiction." 12.21. In the case of Chola Chakont a, Agness Nyondo Chakonta a nd Administrator of the Estate of Patrick Malaya 171 wherein the court stated that a Court may grant a vesting order where it has determined that a transfer of title is appropriate but due to the nature of the legal proceedings, it is unlikely that an actual conveyance of Title can be effected on a casual basis. This situation may arise in contentious family law disputes over property or in civil disputes where the plaintiff is claiming specific performance or where a party's beneficial ownership is disputed. 12 .22. From the above authorities it is clear that this Court has the discretion to grant a Vesting Order where there is failure or neglect to complete a transaction following a Court Order or Judgment. In casu, the judgment of the Registrar dated 25th March, 2022 awarded the matrimonial house and the Mercedes Benz to the -R26- Respondent, accordingly the Petitioner was under an obligation to transfer title to the said properties to the Respondent by virtue of the said Judgment. 12.23. The Petitioner has however, refused to transfer the property to the respondent. This refusal can be seen from the application to set aside the judgment of the Deputy Registrar which was dismissed by the ruling dated 27th September, 2024 and the fact that to date the property has not moved to the Respondent. 12.24. In view of the facts above, it is clear that the situation in casu does fall within the ambit of the section 14 of the High Court. Further, a perusal and consideration of all the factors in this case, reveals that this is a proper case for this Honourable Court to exercise its discretion to grant the Vesting Order sought more so that I have already found above that the matrimonial house was rightly considered during the property settlement. 12.25. For the avoidance of doubt, the Vesting Order is hereby granted in favour of to the Respondent. 13 .0 . CONCLUSION 13 .1. In conclusion, I find that the Matrimonial home is family property therefore subject to property settlement. I further find that the Writ of possession issued by the Respondent was irregular. -R27- t 13.2. Lastly, I hereby Vest the matrimonial home property No. F / 378a/B/ 435 and Motor Vehicle Mercedes Benz C-Class registration No . BAL 7304 in the name of the Respondent. DELIVERED AT LUSAKA THIS 2QTH DAY OF MARCH, 2025. • • • • •••••• •• , • • • • • • • • • • • • • • ::~~-OMIC & FINANCIAL CRIMES DIVISION REPUBLIC Of ZAMBIA HIGH COURT OF ZAMBIA S . V. SILO 2 0 MAR 2025 AfA ---. J'-'_l_U JUDGE S. V. SILOKA P. 0 . BOX 50067, LUSAKA -R28·