Barclays Bank Zambia PLC v Zambia Spinners Ltd (SCZ 8 245 of 2004) [2006] ZMSC 13 (15 December 2006)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN SCZ/8/245/2004 BARCLAYS BANK ZAMBIA PLC Appellant and ZAMBIA SPINNERS LIMITED Respondent Coram: Chirwa, Chitengl and Silomba JJS on 19th October 2005 and 15th December, 2006 For the Appellant: Mr V Dean, Corpus Globe For the Respondent Mrs L Kasonde, Mulenga Mundashi & Co. RULING Chirwa, JS delivered the Ruling of the Court Cases referred to: MERYIEL GAIL NELROSE MARSHALL V RORY Mc DOUGHALL 1989 Si. SC MANAL INVESTMENTS LIMITED V LAMIS INVESTMENTS LIMITED [2001] Z. R. 24 The delay in delivering this Ruling is deeply regretted. This was due to misplacement of the record. Briefly, the history of the matter is that the appellants, Barclays Bank Zambia PLC, were bankers of the respondent, ZAMTEX SPINNERS LIMITED. In the course of the business relationship, the respondent obtained a loan of K250,000,000 on agreed terms and conditions. This loan was later secured by a mortgage on Plot number S/DA of Stand No. 1892, Livingstone. The respondent defaulted on this mortgage loan and the R2 money due on this loan came to K513,598.038.89 which included interest. The respondent, were in the mean time placed under liquidation and the liquidator asked the appellant for the title deed to property S/DA of Stand No. 1892, Livingstone for the liquidator to sell it as part of a process of liquidation. The appellants responded and agreed to release the title deed but insisted that they be treated as secured creditors claiming the amount of K513,598,038.89. The liquidator acknowledged that the appellants were secured creditors but in the sum of K250,000,000 plus interest from 3rd April 2003. It seems this was not agreed upon by the parties as a result the respondent took out Originating Summons seeking a number of declarations and orders. The High Court ruled that the appellants were secured creditors in the sum of K250,000,000 plus interest from 3rd April April 2003 and not as demanded by the appellants who demanded K513.598.038.89 inclusive of the interest. After the judgment of the High Court the appellant applied for stay of execution of the judgment pending appeal. This was denied. An application by the appellants to have the unsecured interest paid into court was also denied. Whilst pending the determination of the appeal, the appellants applied to a single judge of the court for a protective order under Order 29 rule 2(3) of the Supreme Court rules, 1999 edition. In arguing this application before a single judge of this Court Counsel for the appellant submitted that Section 4 of the Supreme Court Act gives some powers to a single judge as it does to the full court in matters not involving final R3 decision. To re-enforce his argument, Counsel referred to case of MERYIEL GAIL NELROSE MARSHALL V RORY Mc DOUGHALL (1), a decision of this court in which it upheld the injunction granted by a single judge, pending appeal. For the respondent, it was argued that on strict interpretation of Section 4 of the Supreme Court Act, a single judge of the court has no jurisdiction to issue an injunction and the case of MANAL INVESTMENTS LIMITED V LAMPS INVESTMENTS LIMITED (2) was relied upon. The learned single judge considered the arguments and authorities advanced before her, she recognized that there were two conflicting decisions of this court on whether or not a single judge can grant an injunction, was persuaded by the earlier decision in MERYIEL GAIL NELROSE MARSHALL (1) where an injunction issued by a single judge pending appeal was upheld. She therefore, in granting the Protection Order referred the matter to the full court for further clarification on this point. In arguing the motion before us both Counsel repeated the arguments advanced before a single judge save that before us Counsel for the respondent further argued that the matter was wrongly before us as the matter In issue was the payment of unsecured sum into Court, which application was refused by a single judge and there has been no appeal against that refusal. It was argued that the matter cannot come before us for clarification. In the course of advancing this point, Ms Kasonde gave us an understanding that the money in issue would be kept safe where it was and would not be used pending the determination of R4 this matter. With this undertaking, we reserved our ruling. We, however, regret the delay in rendering this short ruling. We have considered the arguments advanced before us and before the single judge and the two decisions of this court on the jurisdiction of a single judge on granting injunctions. We are mindful that the Supreme Court is the highest court and it is not strictly bound by its decisions but for the sake of clarity and positioning of the law, it follows its decisions. Being faced with two contradictory decisions of the Court, the single judge was bound to follow the latest decision of the Court on the point and this is as contained in the case of MANAL INVESTMENT LIMITED (2) where, while accepting the possible irreparable damage that may have been caused by the High Court's refusal to grant an injunction, bearing in mind that the Supreme Court does not sit everyday, we recognized the need to oak of the provision relating to appeals in injunction matters, thereby upholding that a single judge of this court has no jurisdiction to grant an injunction. In the course of arguments before a single judge, it was conceded that a protection order has the same effect of an injunction. It follows that in accordance with the latest decision of R5 this court, a single judge has no jurisdiction to grant an injunction. The protection order granted by a single judge of the court is therefore set aside. We order that costs will be costs in the pending appeal. hirwa JUDGE OF THE SUPREME COURT engi Jub (cid:9) F THE PREME COURT S Silomba JUDGE OF THE SUPREME COURT