Mary Mwenda (suing on her own behalf and on behalf of 209 Ors) v B P Zambia Plc (APPEAL NO. 154/2008) [2013] ZMSC 93 (29 October 2013)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. ~54/2008 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN MARYMWENDA (Suing on her own behalf and on behalf of 209 Others) AND APPELLANT B P ZAMBIA PLC RESPONDENT Coram: Sakala, CJ, Chibomba and Wanki, JJS On 24 t h January, 2012 and on 29 t h October, 2013 For the Appellant: For the Respondent: Mr. W. Mubanga of Chilupe and Perma nent Chambers Mr. A. J. Shonga Jr. , SC, of Shamwa n a and Company JUDGMENT Chibomba, JS, Delivered the Judgment of the Court . Cases referred to: 1. 2. 3. Construction Sales Limited vs. Standard Bank Zambia Limited (1990-1992) ZR 157. Clement Chuuya and Another vs. J. J. Hankwenda SCZ Appeal No. 3 of 2002. Zambia Seed Company Limited vs Chartered International (PVT) Limited (1999) ZR 151 Legislation and other materials referred to: 1. 2. 3. The High Court Act, Chapter 27 of the Laws of Zambia. The Rules of the Supreme Court, 1999 Edition. Atkins Court Forms, Second Edition Vol. 1 at page 1 72, paragraph 1 • ... J2 When we heard this Appeal, Hon. Mr. Justice E. L. Sakala, Chief Justice, sat with us. He has since retired. This Judgment is therefore, a majority Judgment. The Appellants appeal against the Judgment of the High Court at Lusaka, in which the learned Judge held inter-alia, that the Respondent had fully satisfied the Consent Judgment and consequently, he declined to grant to the Appellants , an Order for reconciliation of the sums claimed. Simply put, the facts leading to this appeal are that the Appellants filed a Writ of Summons in the High Court at Lusaka in which they sought payment of the balances of their redundancy packages. They had been paid redundancy packages based on one and half month's pay instead of two months pay by the Respondent. So, the sum claimed to be due was K743,887 ,267.00. The parties exchanged pleadings. On 11 th October, 2006 , the parties executed a Consent Order which states as follows: - "BY CONSENT of the parties Defendant pay the Plaintiff the following sum of money. it is agreed that the 1. K520,289,987 on or by 31 st October 2006. 2. Kl,929,704,786 on or by the 30th day of November 2006. J3 It is further ordered that the above payments represent full and final settlement of any and all claims the Plaintiffs may have against the Defendant herein." As first instalment, the Respondent paid the sum of K641,368,096.46 instead of K520,289,987.00 reflected in the Consent Order. In paying the second instalment, the Respondent deducted the sum of K44,928, 169.00 that had been over-paid in the first instalment. Dissatisfied with this deduction, the Appellants filed an application before the Deputy Registrar for Reconciliation of the sum(s). They claimed that the sum of K44,928, 169.00 that had been deducted was in fact , in respect of parties who had been omitted from the schedule of beneficiaries. They alleged that these parties were not included in the Consent Order. After hearing the application, the learned Deputy Registrar ruled that the claim for K44,928,169.00 had no basis as what the Respondent had paid was the total sum that was agreed in the Consent Order. Dissatisfied with the decision of the Deputy Registrar, the Appellants appealed to a High Court Judge in Chambers. After hearing both parties, the learned High Court Judge came to the •.. J4 conclusion that the learned Deputy Registrar was on firm ground when he held that the Appellants were not entitled to the sum claimed. He also held that the Respondent cannot be faulted for arithmetic mistakes of the Appellants as the Appellants got the global figure bargained for in the Consent Judgment. Dissatisfied with the decision of the learned Judge in the Court below, the Appellants appealed to this Court advancing three grounds of appeal as follows: - "1. The Court below fell into error by conducting a reconciliation on its own when the application before it was one for leave for inquiries and accounts. pursuant to 0.23 of the High Court Rules as read with 0.43 r.2 of the Supreme Court Practice 1999 Edition to enable a full inquiry to take place in what manner the Respondent has fully satisfied the Consent Judgment. 2. 3. By refusing the Application for inquiries and Accounts the Appellants have been denied the opportunity to carry out a reconciliation of which parties have been paid full SEPARATELY and DIRECTLY by the Defendant under the Consent Judgment. The Court below was in error when it refused the opportunity to put matters right when proper parties have remained unpaid following the Consent Judgment." The learned Counsel for the Appellants, Mr. Mubanga, relied on the Appellants' Heads of Argument which he augmented with oral submissions. Mr. Mubanga informed us that although the . , JS Appellants · had filed three grounds of appeal, the same were interlinked and entwined. He then went on to submit that this appeal was premised on Order 23 of the High Court Act, and Order 43/2 of the Rules of the Supreme Court. These respectively state that: - Order 23 "1. In any civil cause or matter in which all parties interested who are under no disability consent thereto, and also, without such consent, in any civil cause or matter requiring any prolonged examination of documents or accounts or any scientific or local examination which cannot, in the opinion of the Court or a Judge, conveniently be made by the Court in the usual manner, the Court or a Judge may, at any time, on such terms as it or he may think proper, order any question or issue of fact, or any question of account arising therein, to be investigated or tried before a referee, to be agreed on between the parties o appointed by the Court or a Judge. 2. Where an order has been made under Rule 1, the Court or a Judge shall furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall direct the parties, if necessary, to attend upon the referee during the inquiry. The instructions shall specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation. 3. The Court or a Judge may, at any stage of the proceedings, direct any necessary inquiries or accounts described in Rule 1 to be make or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. Order 43/2 ... ' JG 1. 2. The Court may, on an application made by summons at any stage of the proceedings in a cause or matter, direct any necessary accounts or inquiries to be taken or made. Every direction for the taking of an account or the making of an inquiry shall be numbered in the Judgment or order so that, as far as may be, each distinct account and inquiry may be designated by a number." Mr. Mubanga submitted that these Orders provide for an Order for inquiries and accounting. In his view, an inquiry can be made by either party applying or by the Court on its own motion. He submitted that in the current case, the terms of the Consent Order were not being challenged as the Appellants seek an Order that the matter be sent back to the Deputy Registrar so that an Inquiry can be done. In support of Ground 1, it was contended that under both the Rules of the Supreme Court and the High Court Rules, proceedings after or under judgment or parallel thereto are allowed. That the proceedings in the current case, though within the main action, proceeded independently of each other as they flowed from the Consent Order and that these proceeded without attacking or challenging the actual Consent Order. Therefore, that there was no justification for the Respondent to contend that the Appellants have J7 challenged the Consent Order. That the Appellants merely made an application under Order 23 of the Rules of the Supreme Court (RSC), 1999 Edition. It was submitted that taking out proceedings after or under or in parallel with the Judgment or raising a dispute as to whether or not the Judgment or Consent Order has been satisfied or whether there is still any outstanding matters is within the provisions of the law cited above. And that this can be done, for example, by ordering an account to be taken as was allowed in the case of Construction Sales Limited vs Standard Bank Zambia Limited1 . In that case, this Court observed as follows: - "We agree with Mr. Chama that under Order 43 (2) an application for an account to be taken may be made in any cause or matter." It was further submitted that even in trying to enforce a Judgment, parties are entitled to go back to Court and that there is no question of the Court being functus-officio or being perceived as questioning or challenging a Consent Order. That the case of Clement Chuuya and Another vs J. J. Hankwenda2 buttresses this argument. In this case, it was held as follows: - JS "We reaffirm also that where a Judgment creditor in possession of the debtor's property from which an income could be derived willfully defaults by failing to realize any income from the property the debtor can apply to Court for an inquiry of the income which would reasonably have been realized and the sum found should be credited to the Judgment debtor." And that: - "While we do not disturb the original Judgment, we also recognize the harmful effect of the Respondent's irregular efforts to realize his Judgment. In this regard, we remit the case to the High Court with the directive that, on application by either party, the Deputy Registrar should ascertain what is properly still owing if anything to the Judgment creditor on the Judgment plus interest and legal costs including bailiffs fees. The Deputy Registrar should also ascertain what the debtors have paid as well as what they should be credited as having paid in respect of the income the Judgment creditor should have received from having taken possession of in Makeni, being Farm No. Judgment debtor's property F687A/16/D/A. The side that will be found to be owing the difference will pay the same to the other". Therefore, that on the basis of the Hankwenda 2 case, there is need in the current case to determine in what manner the Respondent has satisfied the Judgment since the Court had not ordered any question of account arising therein to be investigated or tried before a referee agreed on by the parties as provided under Order 23 (1) of the High Court Rules. It was pointed out that this is so considering that the Respondent was paying several parties. And that in the Hankwenda2 case, by ordering the Registrar to ascertain what the debtors had paid as well as what should be . .,;..._ J9 credited as having been paid in respect of the income, is the same thing the Appellants applied for in the Court below. Order 23 Rule 1 and 2 of the High Court Rules was cited and has been recast above. It was submitted that under the above cited Rules, the Court is empowered to at any stage of the proceedings and on such terms as the Court deems fit, to order an investigation or trial before itself or before a referee in order to determine like in this case, the facts surrounding the various payments between the parties. Therefore, that in the circumstances of this case, the Court below fell into error by doing a reconciliation on its own without following the laid down procedure of appointing a referee who would have carried out an inquiry and reported back to the Court after conducting investigations. It was further argued that even assuming the Court had done its own investigations, the Court ought to have taken into account the facts disclosed in the Summons and Affidavit in Support of the Application for Inquiries and Accounts. And that had the Court taken these facts into account, it could have come to the conclusion JlO that an inquiry and accounts be conducted and w ould have so ordered. In support of Ground 2, it was submitted that had the Court below paid attention to the Affidavit in Support filed on 20t h April, 2007, the learned Judge would have come to the conclusion that an Order for Inquiry and Accounts was justified under Order 23 of the High Court Rules and Order 43 of the Rules of the Supreme Court. It was argued that the only reason an Order for Accounting and Inquiry was not made was ignoring or glossing over of the contents of the Affidavit in Support and Summons as the Appellants would have shown that the Order sought was justified and should have been granted. Further, that the Affidavit in Opposition filed on 22 n d June, 2007 confirms the following circumstances: - "(1) that the Respondent had breached the Consent Order by paying K641,368,096.46 as opposed to K520,289,987.00 and alleged an overpayment but in the same Affidavit in particular Paragraph 15 at Page 130 of the Record stated that the Respondent had fully complied with the provisions of the Consent Order and had fully satisfied its indebtedness to the Appellants and fully discharged its obligations in the matter. (2) that in Paragraph 17 the Respondent had stated among other things that the Consent Order directed the Respondent to make special amounts and the order did no specify which JU persons were to receive the said amounts save hat the amounts were paid to the Appellants; and (3) that the Order did not indicate to which particular Appellant the amounts were made and it was therefore not possible for the Respondent to provide the payment voucher." It was further submitted that the contents of the Affidavit in Reply appear to disclose a plausible explanation as to why it was necessary and justified to make an Order for an Inquiry and Account as the facts and averments in the said Affidavit ought to have been subjected to trial so that the evidence would have been tested. Hence, the finding by the Court below that the Respondent cannot be faulted for arithmetic mistakes of the Appellants amounts to bias as there is no supporting evidence to justify such finding. And that the refusal by the Court below to order Inquiry and Accounts, denied the Appellants an opportunity to carry out a full reconciliation and harmonization of various payments which the Appellants had been paid separately and directly by the Respondent under the Consent Order. The learned Counsel for the Appellants then went on to repeat the contents of the Summons that was filed on 3 rd October, 2006 and the effect of the payments that were made. .. . J12 In support of Ground 3 , it was contended that the application for an Inquiry and Accounts was made to correct the situation that had risen over the payments. And that the deduction of the sum of Kl21 ,078,082.00 from the final tranche must be frowned upon by this Court as the same is inequitable and irregular. And that the Respondent's action was a gross attempt at a set-off which cannot • be sustained at law and equity, as a right of set-off can only exist when interest of parties exist in the same right. As authority, Order 18 of the Rules of the Supreme Court was cited which provides that: - "18 / 17 / 3 Same parties, in same right - set-off was only available in respect of debts or liquidated demands due between the same parties in the same right. So against a claim by the Plaintiff as Executor or Trustee, the Defendant cannot set-off a debt due to him from the Plaintiff personally (Rees v. Watts ( 1855) 11 Ex. 410); and, conversely, to a claim against the Defendant as Executor, the latter cannot set-off a debt due to him personally (Re Dickinson [1888] W. N. 94; Phillips v. Howell [1901] Ch. 773 nor to a claim against an Executor personally a debt due to him as Executor personally a debt due to him as Executor (Nelson v. Roberts (1893) 69L. T. 352). • Nor, against a claim by the Plaintiff, can a debt due from his agent personally be set-off, unless the Plaintiff authorized or allowed the agent to contract as principal (George v. Clagett (1797) 7 T. R. 359, Smith's L. C. Vol. II; Exp. Dixon (1876) 4 Ch. D. 133; compare Richardson v. Stormont, Todd & Co. Ltd [1900] 1 Q. B. 701); nor against a claim to a several debt can a joint debt be set-off (Re Pennington & Owen Ltd [1925] Ch. 825, C. A.). See further Dole Dried Fruit and Nut Co. V. Trustin Kerwood Ltd [1900] 2 Lloyd's Rep. 309, C. A." , . J13 It was submitted that it was wrong to deduct the alleged over payment from the final group that had nothing to do with the second group under which the problem arose. On the other hand, in opposing this appeal, the learned Counsel for the Respondent, Mr. Shonga, Jr., SC, also relied on the Respondent's Heads of Argument which he augmented with oral submissions. In response to Ground 1 of this Appeal, it was contended that the Court below was on firm ground when it dismissed the Appellants' application for an account and inquiry as this was not a proper case for such an account and inquiry to be done. It was submitted that by the time the Appellants made this application, the Respondent had completed payment of the sum agreed upon in the Consent Order. It was further submitted that under the Consent Order, the Respondent was expected to pay the total sum of K2,449,994,773.00 in two instalments. And that the Respondent paid the first instalment on 1st November, 2006 by paying the sum of K641,368,096.46, instead of paying K520, 289, 987.00 stipulated in the Consent Order. That as a result, the Respondent J14 made an over payment of Kl21, 078, 082.00. And that in paying the second instalment, the Respondent paid the sum of Kl,808,626, 704.00 instead of Kl,929, 704,786.00 after deducting the sum overpaid in the first instalment. That by so doing, the Respondent fulfilled the terms of the Consent Order by paying the total sum of K2,449,994,773.00. It was submitted that there is no doubt that the Respondent fully satisfied the terms of the Consent Order and therefore , that it supports the findings of the lower Court which declined to grant the application for an account and inquiry to be taken by the Appellants. It was further submitted that the application in question was made after the Consent Order was satisfied and p erfected by the 4t Respondent. It was submitted that this Court has in the past been reluctant to interfere with Consent Orders or Judgments as can be deduced from the case of Zambia Seed Company Limited vs Chartered International (PVT) Limited3 in which this Court held that:- "By law the only way to challenge a Judgment by consent would be to start an action specifically to challenge that consent Judgment." I And that this Court went on to observe that:- JlS "Conceivably so, because they consented to summary judgment thus were bound by the summary judgment. In our view, the summary Judgment however was a final Judgment as defined in Halsbury's Laws of England, Fourth Edition, page 238, thus: - liability of the defendant 'A Judgment obtained in an action by which a previously existing is ascertained or established and as judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against finally is determined in favour of the plaintiff or the defendant. the defendant the plaintiff to We do not accept Mr. Matibini's argument that there are areas of the claim which need supplementary orders. By law the only way to challenge a Judgment by consent would be to start an action specifically to challenge that consent Judgment." It was pointed out that the application by the Appellants sought the inquiries to be made as follows :- 1. That an account be taken as to the difference between the sum of K520,289,987 and the sum of K641, 361, 096. 46 being the alleged overpayment by the Defendant to the Plaintiffs. 2. That the Defendant do pay to the Plaintiffs the sum found to be due to the Plaintiffs upon taking such an account if any. 3. That the Defendant do account to the Plaintiffs payment Vouchers relating to Final Payment on terminal benefits. 4. That the Defendant do pay the sum of K44,928,169.00 being in respect of the parties omitted from the schedule of beneficiaries as particularised in the Affidavit filed herewith." It was contended that granting this application would amount to granting to the Appellants supplementary orders arising from the J23 "cannot be blamed for the Appellants' arithmetical errors" . Nowhere in the Consent Order is it stipulated or suggested that the Appellants would be paid individually by the Respondent. We, thus, agree with the submissions by the learned Counsel for the Respondent that how the Appellants were going to distribute the amounts paid by the Respondent was up to them as that had nothing to do with the Respondent. The Appellants and their Counsel had full power to ensure that everyone concerned was paid and/ or included on the List. Having found that there is no merit in all the three Grounds of Appeal, the sum total is that this Appeal has wholly failed on ground that it has no merit. The same is dismissed. In the circumstances of this case, we order that each party bears its own costs. E. L. Sakala (RTD) CHIEF JUSTICE H. Chibomba SUPREME COURT JUDGE M. E. Wanki SUPREME COURT JUDGE ~0 .. ................. J13 It was submitted that it was wrong to deduct the alleged over payment from the final group that had nothing to do with the second group under which the problem arose. On the other hand, in opposing this appeal, the learned Counsel for the Respondent, Mr. Shonga, Jr., SC, also relied on the Respondent's Heads of Argument which he augmented with oral submissions. In response to Ground 1 of this Appeal, it was contended that the Court below was on firm ground when it dismissed the Appellants' application for an account and inquiry as this was not a proper case for such an account and inquiry to be done. It was submitted that by the time the Appellants made this application, the Respondent had completed payment of the sum agreed upon in the Consent Order. It was further submitted that under the Consent Order, the Respondent was expected to pay the total sum of K2,449,994, 773.00 in two instalments. And that the Respondent paid the first instalment on 1st November, 2006 by paying the sum of K641,368,096.46, instead of paying K520, 289, 987.00 stipulated in the Consent Order. That as a result, the Respondent J14 made an over payment of K121, 078, 082.00. And that in paying the second instalment, the Respondent paid the sum of Kl,808,626, 704.00 instead of Kl,929, 704,786.00 after deducting the sum overpaid in the first instalment. That by so doing, the Respondent fulfilled the terms of the Consent Order by paying the total sum of K2,449, 994,773.00. It was submitted that there is no doubt that the Respondent fully satisfied the terms of the Consent Order and therefore, that it supports the findings of the lower Court which declined to grant the application for an account and inquiry to be taken by the Appellants. It was further submitted that the application in question was made after the Consent Order was satisfied and perfected by the Respondent. It was submitted that this Court has in the past been reluctant to interfere with Consent Orders or Judgments as can be deduced from the case of Zambia Seed Company Limited vs Chartered International (PVT) Limited3 in which this Court held that:- "By law the only way to challenge a Judgment by consent would be to start an action specifically to challenge that consent Judgment." And that this Court went on to observe that:- JlS "Conceivably so, because they consented to summary judgment thus were bound by the summary judgment. In our view, the summary Judgment however was a final Judgment as defined in Halsbury's Laws of England, Fourth Edition, page 238, thus: - liability of the defendant 'A Judgment obtained in an action by which a previously is existing ascertained or established and as judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against finally is determined in favour of the plaintiff or the defendant. the defendant the plaintiff to We do not accept Mr. Matibini's argument that there are areas of the claim which need supplementary orders. By law the only way to challenge a Judgment by consent would be to start an action specifically to challenge that consent Judgment." It was pointed out that the application by the Appellants sought the inquiries to be made as follows:- 1. That an account be taken as to the difference between the sum of K520,289,987 and the sum of K641, 361, 096. 46 being the alleged overpayment by the Defendant to the Plaintiffs. 2. That the Defendant do pay to the Plaintiffs the sum found to be due to the Plaintiffs upon taking such an account if any. 3. That the Defendant do account to the Plaintiffs payment Vouchers relating to Final Payment on terminal benefits. 4. That the Defendant do pay the sum of K44,928,169.00 being in respect of the parties omitted from the schedule of beneficiaries as particularised in the Affidavit filed herewith." It was contended that granting this application would amount to granting to the Appellants supplementary orders arising from the L J16 Consent Order and that this would also amount to revisiting the Consent Order and introducing new issues for determination that were never agreed upon by the parties. Further, that since the Appellants agreed to the terms of the Consent Order, they are bound by the terms of the Consent Order. And that once these payments were made , that constituted full and final payment of all their claims. Therefore , that the Respondent complied fully with the terms of the Consent Order. It was further submitted that the law relating to Consent Judgments and Orders is very clear. It places t he burden on lawyers to ensure that they take into account all issues when entering into Consent Orders. Order 42/SA/4 of the Rules of the Supreme Court was cited. This Rule provides that: - "Since a consent judgment or order under the procedure will not be seen, less examined by any judicial officer, solicitors have an increased burden in ensuring it is expressed fully clearly and with precision and caries into effect the intention of the parties without ambiguity or possibility of a conflict of construction." It was further contended that whilst agreeing with the Appellants ' submission that an application for an a ccount can be made at any time during trial, in the current case, however, the J17 application was made after the Consent Order had been satisfied and hence, the matter was concluded when the final payment was made. Therefore, that the current case should be distinguished from the case of Clement Chuuya and Another vs J J Hankwenda2 because firstly, the current case involved a Consent Order which had specific terms which were complied with by the Respondent and secondly, the terms of the Consent Order in question were not ambiguous as the parties knew exactly what their intentions were. That in the case of Clement Chuuya and Another vs J J Hankwenda2 , the issues that were dealt with are at variance with the current case in that the earlier case dealt with procedure to be followed when dealing with a Writ of Eligit. And that the facts and the principles enunciated in the earlier case cannot in any way be applicable to the current case. And that in the earlier case, the Court was correct in interfering with the manner in which execution was done as the issues in that case involved a Writ of Eligit whereas the position is very different in the current case. Therefore, that Ground 1 of this Appeal should fail. 41t J18 In response to Ground 2 of this appeal, it was s1,1bmitted that the lower Court was on firm ground when it refused to grant an order for an account and inquiry to be taken as this was not a proper case in which such an order should be granted. It was pointed out that the Consent Order does not at all provide for any person to be paid separately and directly under its terms as the Consent Order is very specific and provides for two payments to be e made to the Appellants. That the Respondent made full payment of the amount contained in the Consent Order. It was further argued that although an application for an account can be made at any time, the authorities show that this should be done during the course of the action. As authority, Atkins Court Forms was cited whereunder the learned authors state that:- "Accounts are taken in the course of litigation, to ascertain the ultimate amount which, on consideration of a number of debits and credits, one litigant owes to another ... " Further, that Order XX (1) of the High Court Rules also recognizes that such an application can be made at any time but during the proceedings of a matter in Court. However, that in the current case, the Consent Order had already been satisfied by the t J19 time the Appellants made the application in question. And that as can be seen from the Affidavit in Support of this application, the Appellants were merely attempting to introduce new matters for the Court's consideration which cannot be allowed. Hence, Ground 2 of this Appeal should also fail. In response to Ground 3, it was submitted that the Court - below was on firm ground when it refused to grant the application in question as the Consent Order had already been satisfied. Hence, it was strange that the Appellants in this Ground argue that there were parties that remained unpaid after the Consent Order and then blame the Respondent for that when it is clear that the main thrust of the matter lay with the first instalment in the Consent Order under which the Respondent overpaid the Appellants. It was pointed out that the Consent Order did not make any other demands on the Respondent as the distribution of the money to the various Appellants rested on and was a preserve of the Appellants themselves. Hence, the lead Appellant, Mary Mwenda, knew who the actual recipients of the money were. It was pointed out that it is strange that the Appellants have alleged that there was no overpayment when the figures clearly explain the position. And J20 that in order to fully satisfy the conditions of the Consent Order, the Respondent deducted the amount overpaid in the first instalment from the last instalment. Hence, the Court below correctly observed that the Appellants got the global figure that they bargained for in the Consent Order. Further, that there was no self enrichment on the part of the Respondent and hence, Ground 3 of this Appeal should also fail. We have seriously considered this appeal together with the arguments in the Heads of Argument and the oral submissions by the learned Counsel for the parties and the authorities cited. We have also considered the Judgment by the learned Judge in the Court below. It is our considered view that this appeal raises the question whether in the circumstances of this case, an inquiry or an account should have been ordered by the Courts below. These circumstances are that the parties had entered into a Consent Order which had specific terms on how the Respondent was going to pay the Appellants over the claim against it. It is not in dispute that when the Respondent paid the first instalment, there was an overpayment on that instalment. There is also no dispute that when the Respondent paid the second instalment pursuant to the e e J21 Consent Order in question, the Respondent deducted the amount that was overpaid in the first instalment. This is what led to the application that has resulted into this appeal before us as the Appellants claimed that the sum deducted was for the parties who were not on the List of those paid under the Consent Order. Although three grounds of appeal have been raised and - argued, we intend to resolve all the issues raised in those grounds of appeal together as they are interrelated. In accordance with our understanding of the Consent Order at page 105 of the Record of Appeal, the parties agreed what the Respondent would pay as first and second instalments. The parties also agreed that those payments would represent "the full and final settlement of any and all claims the Appellants may have e against the Respondent". In our considered view, the learned Judge in the Court below cannot be faulted for not ordering an inquiry or an account to be taken as that would have been extraneous to what the parties had agreed upon in their Consent Order which specifically stipulated the amounts each payment would be. The Consent Order also clearly states that the payment of the sums stipulated in the J22 Consent Order would represent full and final settlement of all claims by the Appellants against the Respondent. It is therefore, our firm view that once the Respondent paid the amounts agreed upon in the Consent Order, the Respondent complied with the terms of the Consent Order. Hence , the Consent Order became fulfilled and perfected. We do not, therefore, accept - arguments by the Appellants that the balance claimed was for those parties who were not part of the Consent Order as the Appellants got that which they asked for and consented to. Therefore, although both Order 23 of the High Court Rules and Order 43 of the Rules of the Supreme Court empower the Court to order an inquiry or an accounting to be made, our firm view 1s that this is not an appropriate case where such an order - should and/or ought to have been made as by the time the application was made, the terms of the Consent Order had been fulfilled and the Consent Order had been perfected. We do not, therefore, agree with the submissions by the Appellants that they were denied the opportunity to carry out a full reconciliation as what they got is what they asked for. Neither can the learned Judge be faulted for stating that the Respondent J23 "cannot be blamed for the Appellants' arithmetical errors" . Nowhere in the Consent Order is it stipulated or suggested that the Appellants would be paid individually by the Respondent. We, thus, agree with the submissions by the learned Counsel for the Respondent that how the Appellants were going to distribute the amounts paid by the Respondent was up to them as that had nothing to do with the Respondent. The Appellants and their Counsel had full power to ensure that everyone concerned was paid and/or included on the List. Having found that there is no merit in all the three Grounds of Appeal, the sum total is that this Appeal has wholly failed on ground that it has no merit. The same is dismissed. In the circumstances of this case, we order that each party bears its own costs. E. L. Sakala (RTD) CHIEF JUSTICE \ ~ H. Chibomba SUPREME COURT JUDGE M. E. Wanki SUPREME COURT JUDGE