The Lusaka Lusaka High Court has dismissed a matter in which Savenda Management Services Limited was seeking an order for immediate payment of over K7.6 million balance, from Stanbic Bank Zambia Limited.

High Court Judge Bonaventure Mbewe struck out the pleadings by Savenda Management Services for abuse of court process, stating that the case has been fully adjudicated upon by other courts and was therefore frivolous.

In this matter, Savenda Management Services Limited had sued Stanbic Bank Zambia in the Lusaka High Court Commercial registry, seeking an order for immediate payment of the balance of over K7.6 million.

Savenda was also seeking an order for damages of breach of contract, interest, costs and any other relief that the court may deem fit.

However, Stanbic Bank Zambia Limited asked the Court to strike out the case for being an abuse of Court process.

According to summons to strike out pleadings for abuse of court process, Stanbic Zambia stated through its lawyers, Eric Silwamba, Jalasi and Linyama Legal Practitioners, that the originating process filed by Savenda was irregular.

It added that this was so because the originating process offends the provisions of Order 18 Rule 19 sub Rule 34 of the Supreme Court (White Book) 1965, Volume 1, 1999 edition, which bar re-litigation of a natter that had been successfully determined to finality by a court of competent jurisdiction, rendering the same to be abuse of the court process and a contravention of the principle of res judicata.

But Savenda argued, through its lawyer Kapungwe Nchito, that the matter was properly before court as the court enjoyed unlimited and original jurisdiction to hear matters in both civil and criminal.

It submitted that the bank’s application to strike out all proceedings for being an abuse of court process, was frivolous, vexatious and intended to defeat the ends of justice by denying Savenda their rights under the contract.

However, in his ruling delivered on December 5, justice Mbewe upheld the preliminary issues raised by Stanbic Bank, which included among others, that the process was an abuse of court process as it was anchored on an action that had been litigated upon, rendering the action frivolous and vexatious.

“I find that on the totality of the claims that are being pursued by the plaintiff (Savenda) are anchored on an agreement made in respect of execution of the High Court Judgement in cause number 2014/HPC/0076 which judgement was later set aside making the said judgement unenforceable; and further, in view of my finding that this case is re judicata as it has been fully adjudicated upon by other courts including the Supreme Court as well as my finding that this case constitutes an abuse of court process on account of it constituting a multiplicity of actions, this action is clearly unsustainable and therefore frivolous or vexatious and hereby strike out the plaintiff’s pleadings for abuse of court process,” he stated.

Judge Mbewe found that the originating process issued by Savenda against the bank, was irregular and consequently dismissed the action.

“Costs to the defendant (Stanbic), in default of agreement to be taxed,” he ruled.

In its statement of claim, Savenda Management Services Limited stated that on or about February 13, 2014, it commenced proceedings against Stanbic Bank Zambia under cause no. 2014/HPC/0076, by way of writ of summons and statement of claim.

Savenda further stated that it claimed for K192,500,000.00 damages for loss of business, an order that Savenda be immediately de listed from the Credit Reference Bureau (CRB), damages for negligence, damages for injury to business reputation, costs and any other relief.

It stated that on or about August 17, 2016, judgement was delivered in its favour and the court found that Savenda had proven its case on a balance of probability and was entitled to all the reliefs sought.

“Savenda levied execution against the goods of Stanbic Bank by Writ of Fieri Facias and the court bailiffs seized the bank’s good as may be sufficient to realise the judgement debt and any related expenses. On or about September 21, 2016, Stanbic Bank negotiated with Savenda’s lawyers at the time, to stop the execution and entered into an agreement for the following; K9.625 million was to be paid towards the judgement sum inclusive of legal costs, the sheriffs fees was to be paid and the process of de listing Savenda from the CRB was to begin,” read the statement of claim.

“Relying upon Stanbic’s undertaking mentioned above and Stanbic having paid K2 million towards the agreed K9.265 million, Savenda instructed the sheriff to stop the execution.”

Savenda stated that in breach of the agreement, Stanbic had failed to make the contractual payments when they fell due.

It further added that Stanbic had made demands to be repaid K2 million and to be repaid the sheriffs fees when they have already enjoyed the benefit which accrued once the execution was stopped.

Savenda lamented that in consequence of the failure by Stanbic to make the payments when they fell due, it had suffered loss and damages.