Banda v Nyirenda and Others (2016/HP/2317) [2025] ZMHC 163 (16 May 2025)

Key Facts

Deceased Name

Issues

• The court determined whether the default judgment entered against the 1st Respondent was invalid because the Applicant failed to obtain mandatory leave from the court before issuing the writ of possession, as required by Order 12 Rule 9 of the High Court Rules.
• The court considered whether the 1st Respondent's full payment of the judgment debt into court on 12th and 17th January 2018, as per the Court Order dated 15th January 2018, legally redeemed the mortgaged property and whether this payment invalidated the Applicant's subsequent possession and sale of the property.
• The court assessed whether the 7th Respondent, as a beneficial owner and assignee of the mortgaged property, was legally competent to challenge the writ of possession and seek redemption following the death of the original mortgagor (1st Respondent).
• The court addressed whether the 7th Respondent's filing of an amended affidavit without prior court leave constituted procedural irregularity under the High Court Rules and RSC, and whether this invalidated the substantive application.
• The court evaluated whether the Applicant, as an equitable mortgagee, could lawfully sell the mortgaged property without first obtaining a court order for foreclosure, as required under Zambian law and referenced precedents.

Holdings

• The court determined that the Applicant's sale of the property was illegal as no court order for foreclosure or sale was obtained. The equitable mortgagee lacks power to sell without judicial sanction, and the Respondents retained the right to redeem the property.
• The writ of possession issued to the Applicant was set aside, and the Respondents were declared entitled to redeem the property as assignees in title. The Applicant was ordered to retrieve the owed amount from court with interest.
• The court ruled that the Respondents' payments to the court satisfied the debt, and the Applicant's failure to challenge the default judgment did not extinguish the equity of redemption. The property must be conveyed back to the Respondents within 30 days.

Remedies

• The Court has set aside the writ of possession in issue, allowing the Respondents to retain their rights to the property.
• Costs for the application are awarded to the Respondents to be taxed in default of agreement.
• The property must be conveyed back to the Respondents within 30 days of this ruling.
• The Applicant is awarded interest on the money owed from the date of the suit to the date of payment in Court at the average short term deposit rate as determined by Bank of Zambia.
• The Respondents are declared entitled to redeem the property as assignees in title.

Monetary Damages

Probate Status

Legal Principles

• The court held that a judgment in default of appearance must be entered with leave of the Court under Order 12 Rule 9 of the High Court Rules, and such judgments cannot be enforced if they exceed the reliefs pleaded. The Applicant's default judgment was deemed invalid for lacking required leave, rendering the subsequent writ of possession and sale unauthorized. The court emphasized that equitable mortgagees cannot sell or foreclose properties without a court order, as demonstrated in cases like FMC Finance Limited vs BAPO and Pemba Lapidaries vs Industrial Credit Company Limited.
• The court applied equitable principles to prevent unjust enrichment by the Applicant, who sought to retain possession and sell the property after the mortgagor paid the debt in full. The ruling clarified that even if a mortgagor assigns their equity of redemption, they retain the right to redeem the property until a court order for foreclosure is obtained. The Applicant's unauthorized sale was invalidated as it violated the mortgagor's equitable right to redemption.

Succession Regime

Precedent Name

• Shilling Bob Zinka Vs Attorney General
• Hangling Xing Building Company Limited Vs Zam Capital Enterprises Limited
• Intelligent Mobility Solutions Ltd vs. Lamise Trading Limited
• Pemba Lapidaries and Another vs Industrial Credit Company Limited
• S. Brian Musonda (Receiver of the First Merchant Bank Zambia Limited) vs Hyper Foods Products Limited
• Mwanza Vs Simpasa and Another
• Isaacs Vs Robertson
• Lyson Brooke Band Zambia Limited vs Zambia Tanzania Road Services
• Amos John Mulemena Vs NIEC Agencies Limited and Another
• Hakainde Hichilema and Five Others vs. Attorney General
• Kasaba Industrials Vs Intermarket Banking Corporation
• FMC Finance Limited vs BAPO Bakery and Others

Cited Statute

• High Court Act Chapter 27 of the Laws of Zambia
• High Court Rules (White Book)
• RSC 1999 edition
• High Court Rules (White Book) and RSC 1999 edition

Judge Name

Passage Text

• "The Court's guard a party's equitable right of redemption. It is not in the interest of justice to deny a party the right to redeem the property where there are prospects of paying the borrowed sum in reasonable time."
• "It is clear that an equitable mortgagee does not have power to sell the mortgaged property as a way of enforcing the mortgage. He however has the right to obtain an order of Court for foreclosure and once the property is foreclosed, the mortgagor's right of redemption is completely extinguished and property must be conveyed to the mortgagee by the Mortgagor unconditionally."
• "The property should be conveyed back to the Respondents within 30 days of this ruling. Costs for the application are awarded to the Respondents to be taxed in default of agreement."

Beneficiary Classes