Jes Mining Co Limited & Others v Boscia Limited (Appeal 202 of 2007) [2018] ZMSC 32 (16 May 2018)

J 1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL N0.202/2007 BETWEEN: JES MINING CO LIMITE ERIC ROUTLEDGE ARTHUR NDHLOVU PETER M. KANG'OMBE (3rd & 4 th Appellants as Joint Receivers of JES Mining Co. Limited) AND BOSCIA LIMITED 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT RESPONDENT Coram: Mwanamwambwa, DCJ, Hamaundu, Kajimanga Kabuka and Mutuna, JJS On 23rd January, 2017 and 16th May, 2018 For the 1st and 2nd appellants: Messrs Chugani & Co For the 3 rd and 4 th appellants: Messrs MNB Legal Pr actitioners For the respondent : Mr V. Michelo, Messrs V. N. Michelo & Partners JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court. This motion is brought by the respondent under Rule 78 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia, the slip J J 2 rule. The respondent would like us o correct our judgment o·f the 2nd March, 2010 with regard to the portion where we said that the respondent, in its secon·d attempt to restore the mareva injunction that it had ~earlier obtained, did. not show evidence that it had obtained leave to proceed against the receivers ·of the 1 t appellant. The background to this motion ~s his: The respondent su·ed the 1st an·d 2 nd appellant s for money due to it on a faile~d joint business ven ure b~ etween it and the appellants. Before the matter proceeded to trial, the responden applied for, and obtained, judgment o·n admission against the two appellants. in the sum of US$30~ 0· ,00·0 .. The l ·t appellant was subs.equently placed under receivership, whereupon the 3 rct and 4 th appellants were appointed rec~eivers. The rec~eivers proce~ed·ed to· advertise some assets for sale. The respondent then ap·p ied for, and obtained, a mare·va inJU:nction against the 1 t appellant on 22nd February, .2008. On 11 th March, 2008, the 1 t appellant, through he receivers, ap·p "ed ex parte and obtained an order setting aside the mar.eva injunction. On - - 21 · April, 2008 the respondent appli d for what rt termed a "spe·cial • J3 rev,iew)' of the· or·der setting asid~e the Mareva injunction. ·The court rejected that application on th·e folio · .. ing grounds;. (i) That it w.as out of time; and, (ii) That the respondent, in any event, had not obtained leave to pro,ceed ag,ainst the receivers. The court directe·d that th~e respondent w ·as at liberty to make an·oth~er applicatio~n which w.as in compliance with the law .. Th~e resp~on.dent 4th appellants to the act1on in their capacity .as receivers,, on 28th May, .2008. The respondent then app1ied again for '(spe.cial review·" ·of the order settin.g aside the mareva injuncti·o'n. This tim·e, the applicatio~n was grante ~d .and the mareva inju.nctio·n was. restore·d on 5 th June, 2.008. The appellants applied to set the injunctio~n aside. Their ap~plication was reJecte~d. Th·ey, then,. appealed to this ~court .. In our judgn1ent, we lam.ented the entertainment by the c~ourt below of numer·ous applications and c·o~unter-applications. ·we s.aid that that w·as a ~demonstration of a la·ck of appreciatio~n of the rules. of procedure by the: learne:d tr1al judg·e., After reviewing Ord.er 3 ·9 of the High Court Rules, Chapter 27 of the Laws of ·ZaDl · 1a and Order 59 of the Rules or· the Supr·eme ~Court (White Boo.k) we can1e to the • • J4 conclusio,n that the only applications which the lear ed judge c ~orr~ectly entertain~ed were; the fir t application in which she granted the Marev~a injunction; and,, the s ·cond application in which she set the injunction .aside. We went o~n to hold that the s.ubsequent applicatio~ns were misconceived bec,a s ~e Order 39 of the H·,gh Co·urt rules , under which the,y were premised, ·do,es se ou ~conditions under which the procedure for r,~eview c.an be tnvoked; on~e o~f which is that th.e court has to be satisfie·d that there are .sufficient grounds to in ·· oke i . We noted, however, that th.e learned jud,ge in this case ·did not disclose th·e grounds upo~n which she was satisfied that th~ere was, merit in respondent's second attempt to r -store the injun~ct1o~n, which succe ~ed~ed, we srud I he following: "Also there is no proof on the record. that leav·e was soug;ht and granted to the r ·e:spo . ,dent to, proce·ed against the re: ceiv~ers''. It is. this statement that has given r·se to this. motion. The res.p~on~den t refe·rre·d us to an order h aded '"Ex parte ~Order for lea,ve to Add Recelvers to pro,ceedings.'', dated 2 nd May, 20·08. .. • J 5 At the hearing, the appellants and. th~eir r·espective advocates ' W·ere not present. Upon proof ·that they had been served with the notices o~f hearing, we proceeded to hear the motion. Mr Michelo,. learned counsel for the resp·O·ndent submitte·d that the order that W·e have cited above ha·d been on the supplementary record of app~eal when th·e app·eal ·was b·eing argued. He argued that, ha·d we seen that ·order, we wo·uld h .ave re.alized that the r ·es . ond·ent had been granted leave to ad.~d the rec.eivers as parties to the action; and th.at, therefore, we would not have made that state·ment in the judgement . . When we· po~inted out to counsel that the· order that was. being referred to· us was an order for joinder ·of parties to th·e action and not an order for leave to proc~eed against a company in receivership, ·CO·unsel resp·on.ded that, .ac·cording, to him, the two ord~ers were one and th·e satne thing. First, we wish to point out that joining. a party to an .action, on one hand, and seeking. leave to proceed against a company in receivership, on the ·other, ,are two different steps that serve two differ.ent purpo·ses. In one,. a litigant will add a party to the action mainly be·cause he has a claim against such party; or that the p~ arty to be added has. an interest in the action or may be affected by the· outcome .. In th·e other a.pplication, leave is sought to commence or • cont1nue proceedings against a company becaus·e of the company's J 6 changed ~circumstances .. In this case, the lst appellant was already a party to the ,actio~n .. Once ,a receiver is, app~ointed, it is only the receiv~er who is allowed to represent the company. There was, therefore, no need to join the receivers 1n th~eir individual names to the action unless the r~espond~ent wante·d to sue them in their in~dividual ~capacities. It was sufficient to m.erely show that the 1st appellant was now in receivership. The receivers would then be the only re ~cognize ~d rep~resentatives ~of the 1 st ,appellant. We ·wish to p ~oint o~ut at this '·u· nctur - that wh~en we s,aid that there was no pro·of that leave was J - -- - e - ·.-- - - _, sought and granted to proceed against the re~ce1vers, we wer~e lo~oking for an order, that granted the respon.dent leave to continue proceedings ag,ainst the 1st appellant in view of the fact that it was now und~er rec~eivership .. We were not looking for th~e or~der of joinder which, as we have· explained, is, granted for a different purp~.ose . Fo~r that reaso~n ., we wer~e not wrong in our observation that the order granting the respo~ndent leave to co~ntinue proce·~edings against the 1st appellant was not on re ~cord. Having said that, however, e wish to say that our statement, in so far as it conveyed the meaning that there is need to apply fo·r leave to p~roceed against a ~company in receivership , was inc~orrect. • • While S~ection 281 of the Com. p~an.ies A~ct, Chapter· 388 ~of the Laws J7 o~f Z·a.mbla pro~vides. that, when a win~ding-up order has be~en. made, or a p~rovisional liquidato~r has been ,appoint~ed, no action or except by leave of the ~court . Ther~e is no sin1ilar provisio~n that applies to a C·Ompany that is in receive·rship. We h.av~e found n.~o p~rovtsions of law els~ewer~e that prohibit the commence·m ·ent,, or· c~ontinua · ion,. of an any requiretne·nt for th~e respondent to seek leave of the court to continue procee·dings ag.ainst the 1· t app·ellant w:he·n the lat. er ·went ·nto receivership. the .app ~eal. The second attempt by the respon~dent to res ore the granted contrary to the conditions set out und~er Order 39 of the High Court R.ules. That was the main reason why w~e held it to~ have been misconceived. Our observation that there was no evidenc·e ~on b~e ~en sought and granted was made merely in passing .. • J 8 I For the above reason, this motion is without merit. We dismiss it. Since the appellants did not take any step to defend this motion, we make no order as to costs. ---- .... - • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • E. M. Hamaundu SUPREME COURT JUDGE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • C. Kaj1manga SUPREME COURT JUDGE , • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • J. K. Kabuka SUPREME COURT JUDGE • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . r.: ..... utuna GE ----.. ,