First Merchant Bank Zambia Limited (In Liquidation) and Anor v Al Shams Materials Company Limited and Anor (SCZ/8/258/2009) [2012] ZMSC 122 (31 December 2012)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/8/258/2009 BETWEEN: FIRST MERCHANT BANK ZAMBIA LIMITED (IN LIQUIDATION) 1 ST APPELLANT THE ATTORNEY GENERAL AND AL SHAMS MATERIALS COMPANY LIMITED JAYESH SHAH 2ND APPELLANT 1sT RESPONDENT 2ND RESPONDENT CORAM: MUMBA, AG. DCJ, MWANAMWAMBWA AND WANKI, JJS On 18th July, 2012 and 31 st December, 2012 For the 1st Appellant: Mr. N. Nchito, of Messrs. Nchito and Nchito For the 2 nd Appellant: Mrs. C. Mulenga, Assistant Senior State Advocate For the 1st Respondent: Mr. M. Chitundu of Messrs. Barnaby and Chitundu Associates For the 2 nd Respondent: In Person. JUDGMENT Wanki, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. Ruth Kumbi -Vs- Robinson Kaleb Zulu, (2009) ZR 183. 2. Nahan Investments Limited -Vs- Grindlays Bank International (Z) Limited, (1982) ZR 81. 3. University of Zambia Council -Vs- Calder, (1998) ZR 48. 4. Zambia Consolidated Copper Mines Limited -Vs- Patrick Mulemwa, ( 1995) 5. 5. Samuels -Vs- Linzi Dresses Limited, (1980) 1 ALL ER 803 at 812. 6. Re Jokai Tea Holdings, (Note) [1992] 1 W. L. R. 1196 C. A; (1993) 1 ALLER. 630. 7. MacFoys -Vs- United Africa Company Limited, (1961) 3 ALL ER 1169, 11721. OTHER MATERIALS REFERRED TO:- 8. Supreme Court Rules (White Book) 1999 Edition Orders 3/5/9; 251/3; 45/ 1/42. By a Notice of Motion pursuant to Order 8 RSC and Rule 48 of Chapter 25 of the Laws the 2nd respondent moved the Court to be heard that the Ruling of Judge M. E. Wanki in this matter dated 18th November, 2010 be varied, discharged or reversed by the Court. The Notice of Motion was supported by an affidavit that was sworn by Jayesh Shah, the 2nd respondent. The 2 nd respondent filed heads of arguments. In the arguments, the 2 nd respondent pointed out that in his ruling dated 18th of November, 2010, the single Judge at page 5 held that:- "As would be noted from the background, that appeal was dismissed on 23rd November, 2009 and the Order dismissing the appeal read:- "Upon hearing the 2 nd appellant and upon reading the affidavit of one Jayesh Shah filed J2 herein, it is hereby ordered and directed that the action to appeal to the Supreme Court be and for want of prosecution." is hereby dismissed At page 6 he held that:- "The appeal that was filed on 13th November, 2009 having been dismissed on 23rd November, 2009, there remains nothing that can be dismissed by the Supreme Court." It was further pointed out that the following evidence was on record and available to the single Judge on the 18th November, 2010 - paragraphs 5 and 6 of the 2nd respondent's Affidavit in Support of Summons to dismiss matter for want of prosecution read as follows:- "5. That on 29th October, 2009 this Honourable Court delivered its ruling on the respondent's application where in both applications were granted on Condition that the respondents comply with an Order issued on 5 th June, 2000 to pay the Judgment debt into Court. 6. That I have been advised by my advocates and verily believe that if dissatisfied with the ruling of this Court, the respondents should appeal within 14 days from date of the ruling which they have not done. They have disobeyed the Order to pay into Court which is a condition precedent for them to appeal thus there is no appeal. Therefore they have failed to prosecute the matter - . " It was claimed that the 23rd November, 2009 transcript of the proceedings as produced by the 1st appellant in their record J3 of appeal No. 51 of 2010 and filed into Court on 8 th April, 2010 (almost 6 months prior to the hearing before the single Judge on 6 th October, 2010) at page 998 reads:- "Ex-parte: On 29th October, 2009 this Court in its ruling allowed the 1st respondent i.e. BOZ, to appeal to the Supreme Court on condition that they comply with this Courts Order of 5 th June, 2000 to pay the Judgment debt into Court. More than 3 weeks have passed since the 29th October Order. A search was conducted and it is exhibited as "JSl" on 13th November, 2009, and the record before Court will show no money has been paid into Court. This just goes to show that the 1st respondent may have abandoned their decision to appeal to the Supreme Court. In the circumstances, I ask the Court to dismiss the leave to appeal to the Supreme Court. There is an Affidavit in Support." It was submitted that the Law must be concerned with the substance of the thing and not the form. The substance shows what the application was all about. Besides, there is the well known rule that an application stands, to be granted or dismissed on the basis upon which it has been made. It was argued that, that is the rule that ought to apply to this matter. J4 It was pointed out that the transcript is clear as to what was applied for and before this Court on the 23rd of November, 2009. It was painted out in Support of Summons to dismiss appeal for want of prosecution dated 6 th October, 2010, the 2 nd respondent's UNCHALLENGED affidavit at paragraph 14 state:- "14. That in addition, this appeal ought not to be entertained in this Court in view of the irregularity in lodging the appeal without fulfilling the conditions of the leave." It was contended that the single Judge failed to take into consideration that, the 1st appellant's appeal dated 13th November, 2009 was filed in the Supreme Court without the 1st respondent abiding by the conditional leave to appeal. It was claimed that the Notice of Appeal dated 13th November, 2009 is not only: (a) Invalid; (b) Void ab initio; (c) Incurably bad. because it could only be properly said to have been lodged only after the condition set by Justice Phiri on 29th October, 2009 had been complied with; the condition being:- Js "That the order of this Court issued on 5 th June, 2000 against the Judgment Debtor to pay the monies due into Court be first complied with ... " It was argued that the condition set by Justice G. S. Phiri, J, on 29th October, 2009 when granting leave to appeal, was never abided by the 1st appellant and the appeal therefore never came into being. The condition imposed by the Judge granting leave was a condition precedent and had to be abided by the 1st appellant before the act to which it related could come to friction, such condition had to be met. It was pointed out that there was the 2nd respondent's unchallenged affidavit evidence dated 6 th October, 2010 which at paragraph 14 states:- "14. That in addition, this appeal ought not be entertained in this Court in view of the irregularity in lodging the appeal without fulfilling the condition of leave.'' It was contended that the single Judge accepted that a notice of appeal which contained a false and misleading statement was a valid notice of appeal. It was pointed out that the leave granted to the appellant on the 29th October, 2009 at page 10 was conditional upon the 1st appellant paying the Judgment debt into Court be first JG complied with because it is still valid and overdue. Justice Phiri in his ruling delivered on 29th October, 2009 states:- "Having considered all the aspects, and unfairness to all parties, I will allow the leave sought for the appeal to the Supreme Court against the ruling of this Court delivered on the 24th of July, 2009 as well as the stay sought; but in addition that the Order of the Court issued on 5 th June, 2000 against the Judgment Debtor to pay the monies due into Court be first complied with because it is still valid and overdue.'' It was contended that the appeal was therefore VOID and as held in MACFOY -VS- UNITED AFRICA COMPANY LIMITED (7l "If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something in nothing and expect it to stay there. It will collapse." It was argued that the fact that the 1st appellant had on 13th November, 2009 lodged their appeal into the Supreme Court:- (a) Without abiding by the conditional leave; (b) Knowingly misstated that leave was granted on 29th October, 2009 when in FACT what was granted was conditional leave. were good and sufficient grounds for the single Judge to dismiss the 13 th November, 2009 Notice of Appeal. J7 It was further contended that the 13th November, 2009 Notice of Appeal is not only defective but it is VOID as the parties are wrongly stated:- AL SHAMS MATERIALS LIMITED 1 ST APPELLANT JAYESH SHAH AND 2ND APPELLANT FIRST MERCHANT BANK ZAMBIA LIMITED (IN LIQUIDATION) 1st RESPONDENT THE ATTORNEY GENERAL 2ND RESPONDENT It was argued that that does not make sense how could the appeal have been made by respondents who were NOT dissatisfied with the Ruling of Hon. Justice G. S. Phiri, delivered on 29th Octa ber, 2009. It was pointed out that the 1st appellant's Notice of Appeal to the Supreme Court was pursuant to Rule 49 of the Supreme Court Rules. Rule 49 Sub rule (3) states:- "3. A Notice of Appeal shall be substantially in Form CIV /I of the Third Schedule." The third schedule provides for the appellant or its Advocates to sign the Notice of Appeal. Jg It was claimed that the Notice of Appeal dated 13th November, 2009 is not signed and is thus incomplete and should have automatically been struck off. It was submitted that the foregoing are in themselves good and sufficient grounds for the single Judge to have dismissed the Notice of Appeal dated 13th November, 2009. In relation to the ruling dated 27th July, 2011, it was submitted that if the Court is still not persuaded to either strike out and or dismiss the 13th November, 2009 Notice of Appeal, then, the challenge that the Court will invariably face is that:- (a) In the absence of an appeal to the Supreme Court the parties have accepted the ruling of Honourable Mr. Justice G. S. Phiri delivered on the 27th July, 2011; (b) This ruling is now part of the Record and therefore properly placed before the Court. It was contended that the parties have since 27th July, 2011 accepted the last ruling of Mr. Justice Phiri and the Court has not been invited an appeal to either set aside and or vary the 27th July, 2011 ruling - thus the Court will be left with no choice but to dismiss the 13th November, 2009 Notice of Appeal. Jg It was pointed out that in his submissions before the single Judge on behalf of the 1st appellant on 19th October, 2010 Mr. Nchito submitted that:- "This Court is entitled to have judicial notice of any matter that is before any other Court that is relevant and to take judicial notice of the record and its contents. The Court rightly or wrongly granted the application to dismiss the appeal by the High Court. A Court order rightly or wrongly is a Court order until removed on review or appeal." It was further pointed out that Justice Phiri in his ruling delivered on the 27th July, 2011 at page 9 held that:- "The Order signed on 23rd November, 2009 at the instance of Messrs. Sharpe and Howard was an ex-parte Order; and so was the Order of 28th January, 2010 signed at the instance of Messrs. MNB Legat Practitioners. The difference is that the Order of 23rd November, 2009 contains an error in paragraph 3 where it says:- "The action to appeal to the Supreme Court ....... '' instead of conditional leave to appeal to the Supreme Court ......... " On the other hand, the Order of 28th January, 2010, at the instance of Messrs MNB Legal Practitioners complete misrepresentation and a common mistake in the circumstances of this." contained a Further, at page 11 of the same ruling Justice Phiri ordered a substitution:- ,iFurther, for purposes of clarity, the only, leave granted by this Court on the 28th January, 2010, was the leave to appeal against the ex~parte Order of 23rd November, 2009. I further order an alteration in the third paragraph thereof in so far as it states "the action to appeal" for which I substitute with "the conditional leave to appeal." J10 And at page 11 Justice Phiri has set out his reasoning for ordering the substitution which is:- "This removal and alteration of the ex-parte post Judgment orders in the matter I have done is the only true reflection of the actual facts in this case which will reflect an unaltered record of the proceedings, both for the purpose of the current applications presently before me and an appeal, if any. I have made the Orders that I have made in this ruling under a firm belief that the actual facts in this case remain factual and not twisted in order to deny the Judgment creditor the fruits of his Judgment.'' It was argued that the High Court as a Superior Court of inherent Jurisdiction is entitled to correct any patent error on an order that it has made. This it did via the ruling of 27th July, 2011. That ruling is extant and has not been appealed. It was contended that a precondition to the exercise of such a power is that both parties must be heard by the Court. It was pointed out that, it is clear from the ruling of 27th July, 2011 which is now part of the record in the absence of an appeal is valid and binding on all parties. Further, it was contended that the ruling of 27th July, 2011 also clarifies that the Judge did not grant the wide order which he was made to sign on 28th January, 2010 which was as a J11 result of sharp practice of the 1st appellant's legal practitioners which constitutes fraud. It was argued that it is trite principle of law that a judgment, ruling, and order signed as a result of fraud is invalid and can properly be recalled. It was claimed that, the Order of 28th January, 2010 in this matter has been recalled and varied on 27th July, 2011. That being the case, the ruling of the 27th July, 2011 :- (a) Clarifies all issues between the parties; (b) Correctly states what is on the case record; (c) And supersedes all developments to the contrary. The 2 nd respondent therefore, prayed that the Notice of Appeal dated 13th November, 2009 be dismissed with costs. In augmenting his heads of argument, at the hearing of the appeal, the 2 nd respondent submitted that on 29th November, 2009, he was not aware of the appeal by Bank of Zambia as was deposed in the affidavit which was before the single Judge in October, 2010 sworn by himself on 6 th October, 2010, page 42 of the motion in paragraph 14. He referred to page 23 of the Supplementary bundle; and to page 16, paragraphs 5 and 6. J12 He contended that they have not complied with the condition precedent for them to appeal. The appeal should therefore be dismissed as no money has been paid to date. The 2 nd respondent referred to the proceedings on page 54 of the Supplementary record. He also referred to page 4 7 of the Supplementary record. He relied on page 52 of the Supplementary record, last paragraph, the submission by Counsel. He contended that there was no appeal against the ruling at page 31 of the Supplementary record. The 1st respondent filed heads of argument in support of the motion. In its heads of argument, the 1st respondent started by giving a brief background, that: on 24th July, 2009 G. S. Phiri sitting as High Court Judge delivered Judgment under Cause No. 1998/HP/2097 in favour of the respondents in which he ordered the appellants to pay interest at the rate of 24 percent per annum on the Judgment; being dissatisfied with the ruling, the appellants subsequently applied to the Court for leave to appeal to the Supreme Court against the said ruling of 24th July, 1998. The Court, Justice Phiri in ruling of 28th October, 2009 granted the leave to appeal sought on condition that, the earlier Order of 5 th June, 2000 for payment of the Judgment Sum into Court is first complied with as it was still valid and long overdue; in spite the leave to appeal to the Supreme Court and the Order for Stay of Execution granted being conditional, the appellants proceeded on 13th November, 2009 to lodge the appeal without meeting the conditions set by the Court; further the appellants failed to file the record of appeal even after over 9 months had elapsed from the date the conditional leave to appeal was granted and did not obtain leave of the Court to file the record; outside time - ; in the light of the said delay to lodge the appeal and he failure to meet the conditions attached to the leave, the respondents applied on the 23rd November, 2009 to the Court below for dismissal of the conditional leave granted. The Lower Court in considering the said application granted the relief sought which was to dismiss the leave to appeal granted on 23rd November, 2009; the appellants being aggrieved with the dismissal of the leave to appeal subsequently appealed to this Court which appeal was heard by the court in Ndola and awaits J14 the delivery of Judgment, that appeal is in respect of the Order of Justice G. S. Phiri of 23rd November, 2009 which dismissed the leave to appeal and not the appeal (clarified by the Judge in a subsequent ruling dated 28th July, 2011 which ruling has been accepted by the parties to these proceedings); following the dismissal of the leave to appeal, the respondents proceeded to apply before a single Judge of the Supreme Court for dismissal of the appeal for want of prosecution, which application was heard and determined by the single Judge who delivered the ruling on 18th November, 2010. In relation to the ruling of 18th November, 2010, it was pointed out that as earlier submitted, the application that was before the singe Judge made by the respondents was one for dismissal of the appeal dated 13th November, 2009 for want of prosecution. In his ruling of 18th November, 2010 the single Judge held that, the appeal had already been dismissed on 23rd November, 2009 and as such there was no appeal to dismiss thereby rendering the application an abuse of Court process and dismissed it with costs. It was claimed that it is the ruling appealed against. Jls It was argued that in so far as the single Judge was concerned the application to dismiss the appeal for want of prosecution had already been heard and determined by G. S. Phiri on 23rd November, 2009. It was submitted that if this is the correct position it suggests that a High Court Judge can dismiss an appeal pending before the Supreme Court which is not attainable. It was contended that what Judge G. S. Phiri, dismissed on 23rd November, 2009 was leave to appeal and not to appeal. It was emphasized that it has been established Judge G. S. Phiri, dismissed the leave to appeal and not the appeal for want of prosecution. It was claimed that, the respondents Advocates Messrs. Sharpe and Howard Legal Practitioner's drafted the Order to the effect that the action to appeal to the Supreme Court had been dismissed for want of prosecution which was wrong as there was no such an Order by the Court. It was pointed out that the Order that was given was for dismissal of the leave to appeal and had nothing to do with dismissal for want of prosecution. J16 It was contended that the Court attaches weight to the actual Order pronounced by Phiri; J, on 23rd November, 2009 which is to grant the relief sought of dismissing leave to appeal. No weight should be attached to the erroneous Order that was drawn by the respondent's previous Advocates as it is not correct reflection of the Order pronounced by the Court. In fact, this position has been confirmed by Phiri, J, in his ruling of 27th July, 2011 and in particular, at page 11 thereof from paragraph 12 to 15 thereof. In conclusion, it was pointed out that this notice of motion arises from the ruling of Phiri, J, made on 28th October, 2009 in which he granted conditional leave to the appellants to appeal against his ruling of 24th July, 2009. It was contended that, the conditions were not satisfied though the appellants proceeded to lodge an appeal. Consequently the respondents applied to dismiss the conditional leave which was indeed dismissed on 23rd November, 2009. It was further pointed out that following the dismissal of the leave to appeal (which is the subject of the appeal dismissed in Ndola), the respondent applied to dismiss the appeal for want J17 of prosecution which was denied with costs on account of the same application having been granted on 23rd November, 2009. It is the ruling appealed against herein. It was contended that there has never been any application for dismissal of appeal for want of prosecution save the one before the single Judge and as such, the Court fell in error to hold that the application was abuse of Court process. It was argued that even the erroneous Order for dismissal of the action to appeal for want of prosecution signed by the Court below, cannot be the basis for the Court to dismiss the application for dismissal of the appeal for want of prosecution. This is so because the correct Order made by the Court was to dismiss the leave to appeal and not the appeal as clarified by the ruling of 28th July, 2011. In augmenting the 1st respondent's heads of argument, Mr. Chitundu submitted that, the notice of motion is filed by the respondents pursuant to Order 8 of the Supreme Court Rules, Chapter 25. They relied on the heads of arguments in support. hs Counsel pointed out that this notice of motion is in respect of the ruling of the single Judge, exhibited as J56 in the affidavit in support of the motion. The respondent's application was for an Order to dismiss appeal for want of prosecution. It was submitted that, in his ruling the single Judge held that, the application had already been to the High Court before G. S. Phiri, J, and was dismissed. It was contended that the application that G. S. Phiri, J, dealt with was one for the dismissal of conditional leave to appeal and not to dismiss the appeal for want of prosecution. He invited the Court to page 20 of the Supplementary bundle, the proceedings before G. S. Phiri, J. Counsel submitted that following the dismissal of the leave an application was made to dismiss the appeal. It was argued that, at the time an application was made before G. S. Phiri, J, there was no appeal before the Supreme Court pending but a purported appeal. The application before G. S. Phiri, J, was granted on 29th November, 2009 the purported appeal was lodged on 13th November, 2009. J19 When asked by the Court, Mr. Chitundu responded that, while the appeal was pending before the Supreme Court his client went to the High Court. Counsel finally submitted that the single Judge held that the appeal had been dismissed when there was no Order to that effect. He was applying that the decision by the single Judge be set aside and the appellant's appeal be dismissed. The 1st appellant filed an Affidavit in Opposition that was sworn by Leonard Nkole Kalinde, Assistant Bank Secretary Litigation at the Bank of Zambia. The 1st appellant also filed heads of argument. In its heads of argument, the 1st appellant started by giving background that: on 13th November, 2009 the 1st respondent filed a notice of appeal against Judgment of the High Court of 24th July, 2009. On 23rd November, 2009, the appellants herein applied ex-parte to the High Court to dismiss the 1st respondent's appeal for want of prosecution and an Order of even date was rendered by the High Court in the following terms:- "Upon hearing the 2nd applicant and upon reading the affidavit of Jayesh Shah filed herein, it is hereby ordered and directed that the action to appeal to the Supreme Court be and is hereby dismissed for want of prosecution." J20 By an Order dated 28th January, 2010 the High Court granted the 1st appellant inter alia leave to appeal its Order of 23rd November, 2009 as well as leave to file the appeal out of time. The Record of Appeal was filed on 9 th April, 2010. Despite obtaining the Order of 23rd November, 2009 by which the appeal of 13th November, 2009 was dismissed by the High Court, the appellants made yet another application before a single Judge of the Supreme Court to dismiss the same appeal for want of prosecution in the Supreme Court. The return date for the Summons was 19th October, 2010 before the single Judge. By a ruling dated 18th November, 2011 the single Judge ruled as follows at page R6:- "The appeal that was filed on 13th November, 2009 having been dismissed on 23rd November, 2009, there remains nothing that can be dismissed in the Supreme Court. It is therefore an abuse of Court process for Mr. Jayesh Shah who knows or is aware that the appeal of 13th November, 2009 was dismissed at his instance and for Messrs. Sharpe and Howard who drew the Order dismissing the appeal to flle the present application to dismiss an appeal which was dismissed on 23rd November, 2009." It was argued that it is trite law that an Order of the Court remains effective until it is removed by review or an appeal. It was pointed out that, Order 39 of the High Court Rules confers J21 power on a Judge of the High Court to review his own decision as long as a Litigant has not appealed from that decision, Order 39(1) reads as follows:- "Any Judge may, upon such grounds as he shall consider sufficient, review any Judgment or decision given by him (except where either party shall have obtained leave to appeal, and such appeal is not withdrawn), and, upon such review, it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm the previous Judgment or decision. Provided that where the Judge who was seized of the matter has since died or ceased to have Jurisdiction for any reason, another Judge may review the matter." It was contended that there is no provision in our laws for the same matter to be dismissed twice. On 23rd November, 2009, the High Court dismissed the 1st respondent's appeal that was filed on 13th October, 2009. The 1st respondent obtained leave to appeal against the decision on 28th January, 2010 and lodged its record of appeal thereafter. The appellants cannot therefore seek to obtain the same Order in the Supreme Court. It was pointed out that according to Order 39 of the High Court Rules a High Court Judge is competent to vary its Order provided an appeal has not been lodged in the matter. It was argued that, in the matter at hand, as the appeal was lodged on 9 th February, 2010, the Order of 23rd November, 2009 and any J22 subsequent Order made prior to the appeal cannot be varied by the Court. It was submitted that the single Judge was on firm ground when he ordered that the appeal that was filed on 13th November, 2009 having been dismissed on 23rd November, 2009, there remains nothing that can be dismissed in the Supreme Court and that the appellant's application was an abuse of Court process. The Court was therefore, prayed to dismiss the notice of motion with costs. In augmenting the 1st appellant's heads of argument, Mr. N chi to submitted that, firstly he wished to rely on the Affidavit filed in Opposition to the motion and the heads of argument. Thirdly, he would urge the Court to take judicial notice of the fact that most of what is being canvassed in the appeal Number 51 of 2010 which was heard on 20th March, 2012. In addressing the Notice of Motion, it was pointed out that, the application before G. S. Phiri, J, is found at page 15 of the Supplementary record; the Affidavit in Support is at page 16; J23 and the Order that was obtained was reduced in writing and is at page 24. That Order was subsequently served on them. Following leave granted to him, the 2 nd respondent filed detailed further heads of arguments on 1st August, 2012. We have considered the motion; the Affidavit in Support; the arguments in support and in response. We have also considered the ruling of the single Judge that has been appealed against; and the authorities that have been referred to. The issue that we have been invited to consider 1n this motion is whether the single Judge erred or misdirected himself when he held that, the appeal that was filed on 13th November, 2009 having been dismissed on 23rd November, 2009, there remains nothing that can be dismissed by the Supreme Court; and that it was therefore an abuse of the Court process for the 2 nd respondent to file an application to dismiss an appeal which was dismissed on 23rd November, 2009. It is common to the parties that the appeal that was filed by the 1st appellant on 13th November, 2009 against the High Court ruling, was dismissed by the High Court for failure to comply J24 with a condition in the conditional leave at the instance of the 2 nd respondent. The filing of the appeal on 13th November, 2009 to the Supreme Court against the High Court Order effectively removed the matter from the Jurisdiction of the High Court. As at 23rd November, 2009, the High Court had no Jurisdiction over the matter or it was fuctus officio. That being the case, the purported dismissal of the appeal filed on 13th November, 2009 on 23rd November, 2009 was null and void for want of Jurisdiction. The appeal of 13th November, 2009 could only be dismissed by this Court, which has Jurisdiction. However, the Order made by the High Court on 23rd November, 2009 was a valid Order and remained as such until it was set aside by the High Court on review pursuant to Order 39 of the High Court Rules, or by this Court upon an application. Since the appellant had already filed an appeal to this Court against the Order of 23rd November, 2009, the review process could not be pursued leaving only one option open to the 2 nd respondent, namely moving this Court. J2s The application that was made by the respondents on 6 th October, 2010 was the option to challenge the Order that was made by the High Court on 29th November, 2009. The single Judge therefore, misdirected himself to hold as he did. As stated above, the High Court was functus officio. The purported dismissal of the appeal made on 13th November, 2009 was incompetent for want of Jurisdiction. The appeal made on 13th November, 2009 was therefore still effective, contra:ry to the single Judge's holding that there was nothing that could be dismissed by the Supreme Court. The single Judge was supposed to determine the application before him. In the circumstances, we find merit in the motion; and we accordingly vary the decision of the single Judge. Since it 1s clear from the affidavit evidence and submissions before the single Judge that, the appellants did not fulfill the condition set in the conditional leave to appeal before entering the appeal of 13th November, 2009, we would grant the application and Order that, the appeal filed on 13th November, 2009 is dismissed for failure to meet the condition to pay the Judgment debt into Court. J26 The appelinu ts t.o pay the costs of both the application before the singk lJ udge and this motion which will be subject to taxation in dcfoulL of agreement. F. N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE J27