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Civil procedure – Execution – Whether execution can be levied pursuant to amount agreed as costs but not incorporated or recorded in a consent judgment
Civil procedure – Writs of execution – Judgment or order of court an essential condition to payment of money to a party to proceedings – Prescribed forms require judgment or order of court to be basis of execution
Civil procedure – Writs of execution – Effect of issuance in the absence of a court order
The Respondents took out an action against the Appellant in the court below sometime in 2003. The matter was later concluded in their favour following a judgment of the Supreme Court delivered on 28 July 2014, which ordered costs against the Appellant and directed that the same be taxed in default of agreement. The parties then exchanged correspondence in which costs were agreed at the sum of K250,000.00 and the Appellant proposed to settle the same in instalments. The proposal was, however, rejected by the Respondents who then caused a writ of fifa to be executed against the Appellant to recover the said agreed costs. Subsequently, the Appellant applied to the Deputy Registrar for an order to set aside the writ of fifa for irregularity on grounds that there was no judgment or order of the Court for payment of any quantified sum of money by the Appellant to the Respondents as costs. The Deputy Registrar dismissed the application. The Appellant then appealed to a judge of the High Court, contending amongst other things, that the learned Deputy Registrar erred in law and fact when he held that there was no requirement for a formal order before enforcement. The High Court Judge dismissed the appeal.
The Appellant appealed.
1. Execution can only be levied on amounts found due by the court in a judgment or agreed to by the parties to an action and incorporated into a consent judgment. The parties having agreed to the sum of K250,000.00 as costs, a consent order to that effect should have been entered or sealed before the Respondents could levy execution. Barclays
Bank Zambia Plc v Zambia Union of Financial Institutions and Allied Workers (2007) ZR
2. A judgment or order of the court is a sine qua non for the payment of money to a party
in any proceedings. It is clear from the authorities that execution should only have been
effected by the Respondents after a consent order indicating the agreed costs had been
filed into court. Furthermore, the prescribed forms of a writ of fifa and the accompanying
praecipe, both make reference to a judgment or order as being the basis of execution.
The said forms also require that the date of the order or judgment of the court is
3. The issuance of the writ of fifa was irregular for want of an order of court, by consent or
otherwise, specifying the costs agreed. Allowing parties to levy execution merely on the
basis of agreed amounts contained in letters which are exchanged by the parties without
reducing them into consent judgments or orders would be a recipe for anarchy in the
administration of justice.
Civil Procedure- Application for leave to appeal – Documents filed with the court must contain draft grounds – Effect of failure to include draft grounds of appeal
Civil procedure – Effects of, and rationale for, money paid into Court before trial – Acceptance of money paid into court after judgment