Are you a judgement creditor struggling to unravel the puzzle of enforcing judgement in your matter? This article is the missing piece tailored to equip you with feasible options to facilitate the enforcement of monetary judgments. In this article we shall briefly discuss the following mechanisms available for the enforcement of judgments.
- Writ of fieri facias;
- Garnishee proceedings;
- A Charging Order;
- Appointment of a Receiver;
- Writ of Elegit;
- Order for Committal and
- Writ of sequestration.
The journey to the destination of an executed judgement is not limited to a single route, all of the aforementioned enforcement mechanisms may be used by the judgement creditor-simultaneously or consecutively. This entails that a Judgment Creditor is not confined to utilising one method of enforcement only. Remember, one size does not always fit all. This is especially true where a judgment provides for monetary relief as well as relief that involves land or shares for example. With the array of options available to you as the judgment creditor, it is pivotal to be intentional in your choice of which enforcement mechanism.
Each cause before Court is unique, the method used to execute judgement and the material facts of the cause itself must correspond. The judgment creditor ought to assess the practical application of each enforcement method taking into consideration the material facts of the Judgment seeking to be enforced.
Writ of Fieri Facias (fifa)
A crowd favourite, the fifa. Unlike its complex pronunciation, the Writ of Fieri Facias is popularly used as an enforcement mechanism for its simple and direct enforcement. Evidence of its simplicity is in one of its prerequisites, the judgment creditor must possess knowledge of the judgment debtor’s physical address. In addition to the physical address of the judgement debtor, you as the judgement creditor must ensure that the amount endorsed in the fifa corresponds with the amount stipulated in the judgment seeking to be enforced. The saying, “nothing more, nothing less” applies in this instance as the courts have an obligation to only enforce that which is owing in order to uphold the principals of justice. The rate of interest awarded in the judgment shall also be clearly indicated in the fifa.
When a writ of fifa is issued out of the court and received by Sheriff, the Sheriff will seize the goods of the judgment debtor and thereafter place an auction advert in a newspaper of nationwide circulation. Should there be no successful claim by an interested party to the goods seized by the Sheriff, the Sheriff shall proceed to auction the goods as advertised. The proceeds of the sale shall be tendered towards the sums endorsed on the fifa. Should the Sheriff not find sufficient property during seizure (resulting in a nulla bona return) or should the proceeds of the sale be insufficient to satisfy the amounts endorsed on the fifa, a judgment creditor can use another execution mechanism. In a judgment creditor’s attempt to enforce a judgement there are limits on the extent of the judgment creditor’s entitlement. These include, assets that are not owned by the judgment debtor, the judgement debtor’s basic necessities such as clothing, beddings as well as clothing and beddings belonging to members of their family.1
The case of Sinomine International (Zambia) Engineering Company Limited vs Jianxi De Jin Xin Industrial Company Limited, China – Zambia De Jin Xin Cement Limited and Zhao Jianbao (2022/HP/ARB/013) is an example of successful application of a judgment by way of fifa.
Garnishee Proceedings
To avoid any possibility of disappointment, please note that garnishee proceedings have absolutely no affiliation to the delightful toppings on your salad. A Garnishee Order is a peculiar judgment enforcement mechanism as it allows the judgment creditor to recover debt through a third party known as a Garnishee who is indebted to the judgment debtor. Initially, a judgment creditor will apply to the court for a garnishee order nisi which requires the third party to illustrate why a garnishee order absolute should not be issued. In the case the application is undisputed or unsuccessfully challenged, the court may issue a Garnishee Order Absolute. The Garnishee Order Absolute acts as a pledge that Garnishee will furnish the judgment creditor with the amount stipulated on the order on behalf of the Judgement Debtor. See the case of Indo Zambia Bank Limited v Light House Investment Limited and Others [2017] ZMHC 13 for an illustration of the garnishee order at work.
Charging Order
A Charging Order provides the judgment creditor with a method of enforcement equivalent to that of a mortgage over land specified in the judgment. A judgment creditor who obtains a Charging Order on the judgment debtor’s interest in land becomes in effect a secured creditor.2
A charging order is known for its secure enforcement. It gives the judgment creditor legal interest over the property of the judgment debtor that is subject to the charge. In the instance the judgment debtor does not pay, separate proceedings to initiate for an order of sale of the land under the charging order will need to be set in motion by originating summons guided by the rules relating to mortgages. If immediate payment is a priority for you as a Judgment Creditor this method of enforcement by Charging Order may not be an ideal choice for you.3
To obtain a charging order absolute, a judgment creditor will first have to obtain a charging order nisi calling on the judgment debtor to show cause why their beneficial interests in certain property in order to enforce a judgment should not be made absolute. Should the judgment debtor fail to show cause the court may then make the charging order nisi absolute. Charging orders can be obtained not only on land, but also on securities or an interest in partnership property as well as any other such securities.
Once a charging order is obtained over the property of a judgment debtor, the property only stands charged but a judgment creditor cannot execute on the property until they finally apply and obtain an order for sale of the assets charged under the charging order absolute. An example of a case where a charging order absolute was successfully obtained is the case of Alios Finance Zambia Limited vs Geohydro Consulting Services Limited and 3 others (2015/HP/1155) in a Ruling dated 15 December 2023.
Appointment of a Receiver
A receiver’s playbook in the football sense is somewhat akin to that of a Receiver in the legal sense in that their role is to receive and distribute. In circumstances where the co-operation of a judgment debtor (a company) is proving to be challenging, the court may appoint a Receiver over specific assets belonging to the judgment debtor on application of the judgment creditor.
A Receiver maybe appointed either by the Court or by deed of appointment. A Receiver is primarily tasked to manage the judgment debtor’s security/assets so as to realise the debt owed to the judgment creditor. The court may also give the Receiver liberty to take such measures as might be necessary to force a sale of the property to clear the debt. Nevertheless, a Receiver has a duty to manage the judgment debtor’s property in good faith and for their best interest before opting to dispose of the property.4
An illustration of a case where a receiver was successfully appointed is the decision of LC and DK Limited (In Receivership) and Angel Poultry Limited v Lovemore Chikuni Chinyama [2021] ZMCA 172 as well as the case of Livingstone Motor Assemblers Limited (In Receivership) v Indeco Estates Development Company Limited SCZ Judgment No. 1 of 2013.
Writ of Elegit
Writ of Elegit. A writ of fifa with a knack for hectors. An elegit is a mode of execution through which a judgment debtor’s land (real property evidenced to belong to the judgment debt by title deed or letter of sale) can be delivered for debt to the Judgment Creditor until the judgment debt is paid. Similar to a writ of fifa, an elegit is addressed to the Sheriff of Zambia and upon receipt of the same, the Sheriff shall proceed, upon payment of the Sheriff’s fees, to the premises of the judgment debtor where they will execute the elegit by seizure of the premises and delivering the same upon the judgment creditor until the judgment debt is paid. When a judgment creditor takes possession of the judgment debtor’s property under an elegit, the judgment creditor is in the same position as mortgagee in possession. Therefore, a judgment creditor must be mindful that they have a duty to use their best endeavours to liquidate the judgment debt as soon as possible. Options include applying to sell the judgment debtor’s property.5
Therefore, in the event that a judgment creditor takes possession of the judgment debtor’s property and fails to realise any profits from it, the judgment debtor will be at liberty to apply to the court for an inquiry of the income which they would reasonably realise and the sum found will be credited to judgment creditor. An example of a case where a writ of elegit was successfully applied is the case of Aeradio Zambia Limited vs ZM & P (B.V.I) Holdings Limited (2021/HP/1060).
Order for Committal
This remedy is available for wilful disobedience of judgment or order of the court. Committal proceedings warrant the gravity their name implies. This method of execution requires a party seeking to apply for an order for committal against any party must first obtain leave of court because of the seriousness of committal proceedings themselves. Enforcement of a judgment or order for committal cannot be obtained unless a copy of the order is served personally on the judgment debtor in default.6 In a case where a body corporate is the party in default, it shall not be enforced to act unless a copy of the order has been personally served on the officers against whom an order of committal is sought. Service must be done before the expiration of the time within which the corporate body was required to do the act.7
It must be noted that the rules of service apply in this mode of enforcement. The fact that a person is aware of the order or that it was made in Court when he was present or that his lawyers are aware of it is not sufficient to dispense with service of the order. The order must be served and served correctly. The Court granted leave to issue committal proceedings in the case of Mungaila-Mapiko and Another (Mungaila Royal Establishment) v Channde [2012] ZMHC 76, which illustrates this mode of enforcement clearly.8
Writ of Sequestration
Time waits for no one. As a judgement creditor you can enforce judgment by a writ of sequestration where the specified time frame in which a judgment debtor is required to perform an act has lapsed.
Sequestration is the process by which property is removed from the possessor pending compliance with a court order.9 Similar to an order for committal, requisite documents must be served accordingly on the body corporate in order to confirm an application for a writ of sequestration against the corporate property, if it is sought to proceed by way of a Writ of Sequestration against the property of any director or other officer of that body.10
With this comprehensive outline of the options available for the execution of a judgment, you can navigate these court intricacies and claim what is rightfully yours with a method best suited for your particular circumstances.
1Zambia Institute of Advanced Legal Education, ‘Study Module: Subordinate Court Civil.Procedure’(First Edition, Ziale 2022)
2Hill Robert Hill, Helen Wood, Suzanne Fine. A Practical Guide to Civil Litigation 377
3Caroline Marsh v L M Kristals Limited [2016] HPC 0558
4Storti Mining Limited v Twampane Mining Cooperative Society Ltd [2013] ZMHC 5
5Patrick Matibini, Zambia Civil Procedure Cases and Commentary: Volume 2, (Lexis Nexis, 2017)
6Hussein Versi v Airsea Clearing & Forwarding Limited Appeal No.24 of 2020
7Ibid
8Ibid
9Patrick Matibini, Zambia Civil Procedure Cases and Commentary : Volume 2, (Lexis Nexis, 2017)
10Order 45 Rule 7 of the Rules of the Supreme Court of England, White Book, 1999 Edition
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