Genesis Finance Limited v Longreach Commodities Limited and Others (HPC 144 of 2012) [2015] ZMHC 104 (23 April 2015)

IN THE HIGH COURT FOR ZAMBIA 2012/HPC/0144

AT THE COMMERCIAL REGISTRY

HOLDEN AT LUSAKA

(Civil Jurisdiction)

IN THE MATTER OF: Order 30 Rule 14 of the Rules of the High Court Cap 27 of the Laws of Zambia and Order 88 Rule 1 of the Rules of The Supreme Court Rules (1999).

BETWEEN:

GENESIS FINANCE LIMITED APPLICANT

AND

LONGREACH COMMODITIES LIMITED 1^ST RESPONDENT

BENNIE BERNARD MAKWATI 2^ND RESPONDENT

JOSHUA MUKONKOTO 3^RD RESPONDENT

ENVIOLATE EMMA NHERERA 4^TH RESPONDENT

TENDAI THOMAS MAKWATI MULENGA 5^TH RESPONDENT

FARAI CHRISTOPHER MULENGA 6^TH RESPONDENT

BEFORE THE HON. MR JUSTICE JUSTIN CHASHI IN CHAMBERS ON THE 24^th DAY OF APRIL, 2015

For the Applicant: M J Kawama, Messrs D Findlay & Associates

For the 1^st 2^nd Respondent: N/A

For the 3^rd Respondent M Mukupa, Messrs Isaac & Partners

For the 4^th, 5^th, & 6^th M.C Kaoma (Ms) Messrs KMG Chisanga Advocates

Respondents

_____________________________________________________________________________________

R U L I N G _________________________________________________________________

Legislation referred to:

1. The High Court Act, Chapter 27 of The Laws of Zambia

2. The Commissioners For Oaths Act, Chapter 33 of The Laws of Zambia

On the 23^rd day of March 2012, Genesis Financial Limited commenced proceedings herein against Longreach Commodities Limited, Bennie Bernard Mukwati and John Mukonkoto, the 1^st, 2^nd and 3^rd Respondents respectively by way of an Originating Summons accompanied by an affidavit in support.

A lot of developments thereafter took place. Amongst them was the entering of a Judgment on admission against the 1^st, 2^nd and 3^rd Respondents on the 31^st day of October 2012, which led to the issuance of a Writ of possession on the 1^st day of November 2012.

On the 16^th day of September 2013, the Applicant and the 1^st Respondent filed a Consent Order in which it was agreed that the 1^st Respondent would pay a reduced sum of K425, 000.00 and the Applicant would then discharge the two Mortgaged properties namely Subdivision 13 of Stand No. 3506 Kitwe and Subdivision 20 of Stand No.11062 Libala, Lusaka. It is not clear as to what has happened as regards to adherence of that Order.

The Writ of possession was subsequently stayed and Enviolate Emma Ngerere, Tendai Thamas Makwati Mulenga and Ferai Christopher Mulenga, the 4^th, 5^th, and 6^th Respondents were subsequently joined as parties to the proceedings. Further to that, the Judgment on admission as it related to the repossession and sale of Subdivision 20 of Stand No. 11062, Libala was set aside and it was ordered that the rest of the Judgment on admission will subsist.

Counsel for the 4^th, 5^th and 6^th Respondents then filed an affidavit in opposition to the Originating Summons on the 4^th of September 2014.

It should also at this juncture be noted that there is an application by the 3^rd Respondent still pending to set aside the Writ of possession in respect of the Mortgaged property on the basis that the amounts due under the aforestated Consent Order have since been paid.

At the hearing of the Originating Summons, Counsel for the Applicant relied on the affidavit in support deposed to by John Siakachoma and Counsel for the 4^th, 5^th, and 6^th Respondents equally relied on their affidavit in opposition.

A careful perusal of the affidavit in support of the Originating Summons reveals that although the same is commissioned, it is however not dated.

Order 5 Rule 20 (g) of The High Court Rules¹, on affidavits states that:

“ The jurat shall be written, without interlineations, alteration or erasure (unless the same be initialed by the Commissioner) immediately at the foot of the affidavit and towards the left side of the paper and shall be signed by the Commissioner.

It shall state the date of the swearing and the place where it is sworn”

Equally, Section 6 of The Commissioners For Oaths Act² provides as follows:

“Every Commissioner for Oaths before whom any Oath or affirmation is taken or made under this Act, shall state truly in the jurat or attestation at what place and on what date the Oath or affidavit is taken or made”.

It is clear from the aforestated provisions of the law that it is mandatory that the jurat to an affidavit must state the date of the swearing. Therefore an affidavit that does not show in the jurat the date the Oath or affirmation was taken as is the case in the affidavit in this Cause, offends the Mandatory Provisions of Order 5 Rule 20 (g) of The High Court Rules¹ and Section 6 of The Commissioners For Oaths Act² and to that extent is incurably defective.

In the view that I have taken the affidavit in issue is expunged from the record and as a consequence, the Applicant’s claim has no leg to stand on and is accordingly dismissed.

It follows therefrom that any outstanding Writ of possession is also set aside.

I will grant the Respondents costs with the exception of the 1^st and 2^nd Respondents who shall bear their own costs.

Same to be taxed in default of agreement.

Leave to appeal is hereby granted.

Delivered at Lusaka this 24^th day of April 2015.

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Justin Chashi

HIGH COURT JUDGE