Intermarket Banking Corporation v Kavino Limited and Others (HPC 12 of 2014) [2015] ZMHC 129 (14 August 2015)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2014/HPC/0012 IN THE MATTER OF: BE WEEN: T An application for an Order of foreclosure, possession and sale of property known as Stand No. 12650 Lusaka which was subject of a Third Party Mortgage between as the Applicant and the Respondents Jor-repayment of loans. -/-\/1. couRT OF <: •..•..•..• .t,;-. -d~!'lCUrity \J {/V' 06~ -?-' ~UDICIA'U / '.,.""1 INTERMARKET BANK! G 1 4 AUG 2015 CORPORATION ~ AND KAVINO LIMITED KAMAL SAXENA RUBINA MOHAMED IMRAN :r APPLICANT 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT BEFORE THE HON. MR JUSTICE JUSTIN CHASHI IN CHAMBERS ON THE 14TH DAY OF AUGUST, 2015 For the lSI and 2nd Plaintiffs: For the lsI and 2nd Respondent: For the 3rd Respondent: B. Kasompe (Ms), Messrs Tembo Ngulube & Associates N/A S. Chikuba and B. C Mutale, Messrs BCM Legal Practioners RULING Legislation referred to: 1. The Supreme Court Practice (White Book) 1999 -R2- When the matter came up on the 12th day of August, 2015 for hearing of the application for leave to appeal on behalf of the 3rd Respondent, Counsel for the Applicant indicated that she had filed a Notice of Intention to raise preliminary issues on the 11th day of August, 2015. The Notice is pursuant to Order 14/ Afl as read with Order 33/3 Rules of the Supreme Court and is supported by an affidavit deposed to by Counsel and skeleton arguments. According to the said affidavit, this Court on the 14th day of July, 2015 dismissed the 3rd Respondents application for abuse of the Court process and Ordered that costs for that sitting be paid before any further application can be filed by the 3rd Respondent. That a demand for costs has been made to that effect and the 3rd Respondents have not responded and that the process of determining the costs is yet to be concluded. -R3- It is further deposed that contrary to the Order of the Court, the 3rd Respondent on the 17th day of July, 2015 proceeded to file an application to stay the Ruling of the 14th day of July, 2015 and the Judgment of 21st day of October, 2014 and leave to appeal and appeal out of time respectively before payment of costs. In essence the preliminary issue is whether the 3rd Respondent can proceed to make the application before payment of the costs as Ordered by the Court. At the hearing, Counsel relied on the Notice, affidavit m support and the skeleton arguments. In response, Counsel for the 3rd Respondent submitted VIva voce that the preliminary issues have wrongly been brought under Order 14I All of the Rules of the Supreme Court as that Order relates to issues on a point of law, determination of which brings the matter to finality, further that, the intended appeal is also against the said Ruling on the 14th day of July, 2015 which includes the issue of costs. -R4- Counsel urged the Court to dismiss the preliminary issues. In determining the issue, I have carefully taken into consideration the Notice, affidavit evidence, skeleton arguments and the parties respective viva voce submissions. As earlier alluded to, the Notice to raise preliminary issues is premised on Order 14I A/l as read with Order 33I 3 of the Rules of the Supreme Court. Indeed as rightly observed by Mr. Chikuba, Counsel for the 3rd Respondent, Order 14I AI 1 provides for the Court to determine any question of law or construction of document where it appears to the Court that such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. Which is not the case herein and Order 14I Allis therefore a wrong provision to rely on at this stage. However, the application is also based on Order 33I 3 and I will accordingly proceed to determine the issues, based on that Order. Indeed the Court made an "Unless" Order on the 14th day of July, 2015. As is evident from the record, the Order as to costs was a -RS- puritive Order in view of the flagrant abuse of the Court process by Counsel for the 3rd Respondent, despite having rightly been advised and directed by the Court. A glean of the documentation relating to the 3rd Respondents application for leave to appeal to the Supreme Court does not by any means seem to suggest that the 3rd Respondent is aggrieved by the Order for costs, but by the Order for dismissal of the 3rd Respondent application on account of abuse of the Court process. To allow the 3rd Respondent not to comply with the "Unless" Order of the Court will amount to granting an unlimited license to Counsel for the 3rd Respondent to continue on the path of unleashing unnecessary applications which are clearly an abuse of the Court process. These "Unless" Orders are meant to streamline the processes and to put an erring party in stead. There is therefore need for parties to comply with such Orders of the Court. In the view that I have taken, the 3rd Respondent should settle the costs pertaining to matters relating to and incidental to the sitting -R6- on the 14th day of July, 2015, before engagmg the Court on any application. I was inclined to expunge the 3rd Respondent's application from the record, however in exercising my discretion, I will have the same adjourned sine die with liberty to restore once the 3rd Respondent has settled the costs. Costs of this hearing shall be in the cause. ':!J1 in Chashi HIGH COURT JUDGE