Zambia National Commercial Plc v Setrec Steel and Wood Processing Limited and Ors (APPEAL No.135/2014) [2015] ZMSC 190 (14 May 2015)

GJ APPELLANT 1 sr RESPONDENT 2ND RESPONDENT 3RD RESPONDENT SETREC STEEL AND WOOD PROCESSING LIMITED SEBASTIAN KOPULANDE ~ COLLINS KOPULANDE ·· . CORAM: Chibomba, Hamaundu and ~~6ma, JJS. March, 2015 and 1 ih May, 2015. On 3 rd ·, For the Appellant: Mrs. S. Wamulume, Senior Legal Manager, ZANACO Bank PLC. For the Respondents: Mr. L. C . Zulu, Malambo and Company. RULING ···- ., _ Chibomba, JS, delivered the Ruling of the Court. Cases Referred to:- 1. 2. .3. 4. st Karl Paul Lcmbe vs. Kearney and Company Limited (1979) ZR 20 Erne Scott Miller vs. Attorney General (1980) ZR 126 R.oger r,n:ies N United us a ers (Z) Limited vs. K?pwepwe (1973) ZR 292 ew cpo~pany of Zambia Limited vs. Shanzl (1977) ZR 397 Legislation referred to:- e Court Act, Chapter 25 of the Laws of Zambia. The S~P;~urt Act, Chapter 27 of the La~s of Zambia. The Hig The Rules o f the supreme Court, 1999 Edition. 1. 2 . 3. When e th Appeal in this matter was called for hearing, the learned for the Respondents, Mr. Zulu, informed the Court that the Counsel R2 Respondents had filed a Notice to Raise Preliminary Objection. He requested the C ourt to determine the Preliminary Objection raised before hearing the Appeal. The Notice to RaiSe Preliminary Objection was filed pursuant to Rule 19 (1) of the Supreme Court Rules (SCR), Chapter 25 of the Laws of Zambia. The Preliminary Objection raised . is that the 0 ( Appeal was not properly before the Court as it was brought in contravention of the provisions of Order 30/1 o (1) and (4) of the High Court Rules .· ·\__ I ( HCR)l Chapter 27 of the Laws of Zambia, on ground that the Ruling appealed against is not a decision or order of the Deputy Registrar on assessment of damages and that as such, this Court has no jurisdiction to entertain the Appeal. The facts of this case are settled and are as reflected -in our J udgrnent dated 13th June I 2013. We . do not thereforeI intend to repeat these J udgrnen here Suffice to say that it was as a result of our Order in that _ ~-' · . t which directed the Deputy Registrar to assess the amount owing ondents to the Appellant for the period 5th August! 2004 to 16th . R P by the es December1 Judge ha P d 20os. In our Judgment, we found that the learned High Court roperly ascertained the sum of K21076,001,382.63 as owing for ; I · .· d July 2004 to 5th August, 2004. We also ordered the learned the per 10 ' Deputy Regis . trar to sit with two assessors to be nominated by each party to assist · in determ· · R3 · inmg the sum(s) owing to the Appellant for the period in question. Following this Order, the Appellant filed Summons for Assessment of th e outstanding sum before the Deputy Registrar. However, before the assessment could be done, the Respondents issued a Writ of Subpoena Duces Tecum pursuant to Section 27 (1) of The High Court Act, Chapter ';) I" 27 of the Laws of Zambia, to compel the Appellant's Managing Director to appear before the Deputy Registrar and to produce Statements of Account - \ I for all the Respondents' bank accounts from 1 st February, 1999 to April, 2014. The Appellant then applied to set aside the Writ of Subpoena Duces Tecum pursuant to Order 38/19/25 of the Rules of the Supreme Court (RSC). The ground for the objection was that the production of the Respondents' bank statements starting from as far back as 1999 to 2014 as ordered in the Writ of Subpoena Duces Tecum, would amount to re- . opening of the entire mortgage action and could result into the Deputy .(_c . t Regis rar delving into issues that the High Court and this Court had already 'th And that this would also amount to the Deputy Registrar • the Judgments of this Court and that of the Court below when the dealt W1 . . reviewing Deputy e R gistrar's mandate was merely to assess what was due to the t after 5th August, 2004. Appellan (J R4 After hearin th . 9 e parties, and in her Ruling dated 13th May, 2014, the learned Deputy R egistrar declined to set aside the Writ of Subpoena Duces Tecu · m issued on ground that since there was no specific finding of What was owed at the date of the Judgment as that was the reason why the matte~ was referred for assessment, to prohibit the production of the Respondents' bank statements from 1 st February, 1999 to April , 2014 and to only limit those from 5th August, 2004 to April, 2014, would amount to denying the Respondents the right to prosecute their case. \.. ' Dissatisfied with the Ruling by the learned Deputy Registrar, the Appellant appealed to this Court. As already stated, at the hearing of the Appeal, Mr. Zulu informed us that the Appellant had filed a Notice to Raise Preliminary Objection which he requested us to first determine as it touched on the jurisdiction of this Court. This Ruling therefore, relates to the Preliminary Objection raised. In supporting the Preliminary Objection raised, Mr. Zulu emphasized (i· . tended Appeal by the Appellant was not properly before the Court that the 1n R l as the u 1 ·ng being challenged is not a decision or order on assessment of damages. an appea counsel cited Order 30/1 0 (4) of the HCR, which provides that from a decision or order of the Registrar on assessment of hall lie to the Supreme Court. It was Mr. Zulu's position that in damages s RS the cu rrent case th ' e assessment by the Deputy Registrar has not yet been done as the issue before the Deputy Registrar was whether or not a subpoena h s ould be issued. He contended that the objection being raised is therefore d . , proce ural as this Court has no jurisdiction to hear the appeal 0 ( ,p from the Deputy Reg istrar which is not on assessment of damages in terms of Order 30/1 O ( 4) of the HCR. It was Mr. Zulu's further submission that the question whether the Deputy Registrar was on firm ground in ordering a subpoena to be issue~ must or has to be decided by a High Court Judge and not by this Court. And that only thereafter can the assessment by the Deputy Registrar be done. Counsel therefore, urged us to uphold the Preliminary Objection raised. on the other hand, in opposing the Preliminary Objection, the learned Counsel for the Appellant, Mrs. Wamulume, relied on the Appellant's Arguments in Opposition to the Notice to Raise Preliminary Objection filed,_ ( . h he augmented with oral submissions. whtc s It was argued, in the Appellant's Heads of Argument that in Ernest p ul Lembe vs Kearney and Company Limited1 , Order 30/1 o (1) of CR was found lacking or inadequate. In that case, it was held that a order or direction by the Deputy Registrar on a matter referred to Karl a - the H . . dec1s1on , him by a jud . R6 . ge is made on behalf of that judge and an appeal does not therefore lie to th . e same Judge or to a judge of the same jurisdiction . That this Was based on the provision of Order 58/2 of the Rules of the Supreme Court (RSC) which provides that Appeals from all judgments, orders or d . · · ecis1ons of a master in England shall lie directly to the Court of /) Appeal. Hence, in that case, it was held that an appeal from the Deputy Registrar was incompetently before the High Court as it should have been \ I lodged in the Supreme Court. It was further argued that a similar decision was made by the High Court in Roger Scott Miller vs Attorney General2 in which it was observed that from previous decisions of this Court in Times Newspapers {Z) Limited vs Kapwepwe3 and United Bus Company of Zambia Limited vs Shanzi4 , the Supreme Court had long established the procedure to be Q followed, which is that appeals from decisions of the Deputy Registrar lie to reme court irrespective of the provisions of Order 30/1 0 (1) of the \ t · That the court also observed that the provisions of Order 30/1 o (1) S the up HCR. CR were at variance with the Supreme Court Act and the H of the . . dec1s1ons ' of this court. Therefore, that in light of this apparent contradiction the procedure of the Supreme Court and Order 30/1 0 (1) of the between R7 HCR! the provisio f . ns o the White Book should be called in to assist1 as wa~ (J I ' done in Ernest K arl Paul Lembe vs Kearney and Company Limited1 . Further, that Order 58/2 of the RSC, provides that even when ar 0rd er is interlocutory, a~ appeal would still lie to the court of appeal as par1 of an appeal against the final order or judgment as it would be irregular that . ' an appeal against the interlocutory order or decision should lie to a High Court Judge at Chambers while an appeal against a final order go to the \ ( ) court of appeal. And that in the current case, the decision of the Deputy Registrar relates to the production of bank statements from 1999 to date, which production the Appellant has objected to as it would result in the learned Deputy Registrar re-opening the Mortgage action and eventually questioning the decision of this Court, which ascertained the sum of K2,076,001,382 .63 as due to the ·Appellant as at 5th August, 2004. It was argued that the decision by the Deputy Registrar to order that bank statements for periods already reviewed by this Court be producll~ . ' . nts to the Deputy Registrar interpreting the Judgment of this Court amou . h has already ascertained the sum of K2,076,001,382.63 as owing as whIc at th August, 2004. It was contended that there would be no court other is court that would be competent to state if such statements should than th uced during the assessment proceedings. And that to insist that the d be pro R8 filed/intended A PPeal be before a High Court Judge, would in fact, bE allowing a ower Court to examine the final findings of this Cour1 Therefore th t • ' a on Y this Court can hear and determine the intended Appec as the decision appealed against risks overturning the Judgment of thi~ Court. p In her oral submissions, Mrs. Wamulume submitted that althougr there is yet to be a final decision by the Deputy Registrar at assessment, the Appellant's appeal before this Court is truly an appeal arising ftuh, assessment by the Deputy Registrar. That the decision that was made by the Deputy Registrar is an interlocutory decision made during assessment. Secondly, Mrs. Wamulume submitted that there is a clear contradiction between the provisions of Order 30/1 0 (1) and Order 30/1 O (4) of the HCR as on one hand, sub rule (1) provides that any appeal from the decision of the Deputy Registrar lies to a High Court Judge at Chambers while on the other hand, sub rule (4) provides that appeals ( ,~, · asses sment by the Deputy Registrar shall lie to the Supreme Court. Hence , t O the W counse sub-rules in question are not in tandem. Stemming from this ' I took the view that sub-rule (4) ought to have gone further so as to 'd as done under Order ·5a of the RSC which states that interlocutory prov1 e appeals f ram th Appeal. e Deputy Registrar at assessment lie to the Court of R9 Mrs . Wamulume's further position was that no other court is competent to hear the intended Appeal other than this Court as the Appellant's Appeal is based on the interpretation of this Court's Judgment over the Deputy Registrar's decision which allowed the production of bank (0 statements from 1999 to 2014 when this Court had ascertained the sum of K2,076,001,382.63 as owing to the Appellant as at 5th August, 2004. An~ ( that it will be in the interest of justice to allow the Appeal to be heard by this Court and not any other court. In reply, Mr. Zulu , submitted that contrary to Mrs . Wamulume's submission, the assessment by the Deputy Registrar has not yet been done. That as such , the Appeal is · based on an interlocutory application ·O \ W hich is not an assessment. Hence, as per Order 30/1 0 (1 ), HCR, a High cour t Judge at chambers should hear the intended Appeal. It was also M ri( .. ._,, ubmission that there is no contradiction between the two sub-rules · , Zulus s b U as su -r . Registrar le (1) says that all appeals from the decision of the Deputy lie to a High Court Judge at chambers as a general rule while _ sub-rule (4 ) is specific as it has isolated decisions on assessment to lie to the supreme court. RlO In response t . . . 0 the authorities relied upon by Mrs. Wamulume, it was Mr. Zulu's po T SI ion that the cases were decided prior to the enactment of Statutory Instrument No. 71 of 1997 which brought in sub-rule (4 ). Hence, the amendment was meant h to deal with all the confusion t e learned Counsel for the Appellant alluded to. And that the confusion no longer exists as there is no lacuna or deficiency in our law any more as lQ sub-rule (4) restricts appeals to the Supreme Court to decisions on assessment of damages. As such, there is no need to fall on Order 58/2 o·, r· the RSC relied upon by the learned Counsel for the Appellant. Counsel stressed his position that there has to be an assessment in the matter before an appeal can lie to the Supreme Court. Therefore, that the intended Appeal in this matter is not properly before this Court as this Court has no jurisdiction to entertain it. we have seriously considered the Preliminary Objection raised toge ther with the written and oral submissions by the learned Counsel for _ · ~, the parties and the authorities cited. We have also considered the Ruling by the learned Deputy Registrar. It is our considered view that the Notice to . Preliminary Objection raises one major question. This is whether the Raise in question is properly before this Court. This question requires us Appea . t pret the provisions of Order 30/10 (1) and (4) of the HCR in order for to ,n er Rll us to ably determine the question whether the Appeal in question lies before this Co urt or to a High Court Judge at chambers because on one hand, sub-rule (1) •d prov, es that an appeal from the decision, order or direction of th R . e egIstrar shall be before a High Court Judge at Chambers wh·1 1 e on the other hand, sub-rule (4) provides that an appeal from the decision or order of the Registrar on assessment of damages shall lie to [ ) I the Supreme Court. . t Mr. Zulu has contended that the Appeal in question lies to a H"l~n Court Judge at Chambers and not before this Court as the assessment of damages had not been done by the Deputy Registrar. Mrs. Warhulume's submission in response, on the other hand, was that the Appeal is properly before this Court as the learned Deputy Registrar was exercising her jurisdiction stemming from the Order of this Court to assess the damages. i t . -' We have considered the above arguments. Our firm view is that the Appeal in question is properly before the Supreme Court as the learn (' · t Registrar in making the decision appealed against, was exercising Qepu Y ' . •sdiction on assessment of damages as mandated by this Court in her JUrl the Judgrnent dated 13th June, 2013. We, therefore, agree with the tion by Mrs. Warriulume that since the Deputy Registrar's obse rva . d' f on to conduct the assessment came from this Court, the Appeal in juris IC I R12 question should r . le before this Court because it would be absurd to ask a High Court Jud ge at chambers, to interpret and review the Judgment of this Court so that he/she could determine the qwestion whether the Deputy RegiStrar was on firm ground in ordering that the Appellant's Managing Director be subpoenaed to appear and produce the statements of account for all the Respondents' accounts from 1999 to 2014. The reason being that it was this Court and not the High Court Judge which found that I although the sum of K2,076,001 ,382.63 had been ascertained by the Coun. ( below as owing to the Appellant by the Respondent as of 5th August, 2004, the sum owing from 5th August 2004 to 16th December, 2008 had not been ascertained and consequently, ordered and mandated the Deputy Registrar to do the assessment. Since the Deputy Registrar was exercising her jurisdiction of assessing the damag·es when she dealt with the application that led to the concerned Appeal, our firm view is that the Appeal in quest t ·on is properly before the Supreme Court and hence, this Court has. ( · • . · d' tion to hear and determine it. juns 1c As regards Mrs. Wamulume's pertinent submission that the . . prov1s1on of order 30/10 (1) and (4) of the HCR, are not in tandem with each O e th r and her suggestion that sub-rule (4) ought to have gone further ·de that all interlocutory appeals from the decision or order of the to prov1 Deputy Registrar sh Id . ou lie to the Supreme Court in line with the provision R13 of Order 58/2 of th . of the Master r e RSC which provides that all appeals from the decision · les in the Court of Appeal in England; our response is that we see no conflict between the two sub-rules as sub-rule (4) was in fact enacted to clarify the position as to which appeals from the decisions or orders of the Deputy Registrar go to a High Court Judge at Chambers and/or to this Court. In this vein, we accent the submissions by Mr. Zulu that the cases ( Mrs. Wamulume cited were decided prior to the enactment of Statutory Instrument No. 71 of 1997 which brought 'in sub-rule ( 4) which has dealt with all the confusion she alluded to. We do not, therefore, see any lacuna or deficiency in our rules of procedure as sub-rule (4) now restricts appeals to the supreme Court to decisions or orders on assessment of damages. ) As such, there is no need to fall on Order 58/2 of the RSC or to align the pro~rsr . •on of Order 30/10 (4) to bring it in tandem with Order 58/2 of the ( ,. RSC as our own rules are clear and explicit and spell out the type of appeal . that WI lie before a High Court Judge at chambers and that which will lie · directly to the Supreme Court. R14 th For e · reasons given above, the Notice to Raise Preliminary Objection fails on ground that it has no merit. The same is di~missed with st co s to be taxed in default of agreement. p c= -~Q_ I • • • • • • • t • • t • • ♦ ♦ e I • I t t ♦ • I • • ♦ 0 ♦ ♦ f ♦ • • • ♦ • ♦ I ♦ ♦ f f O • ♦ • ♦ • ♦ ♦ • H. Chibomba SUPREME COURT JUDGE (:.--·-... '\ ...................... ·z ._. G -:, Gz'/); --/; . / :i': .................. . E. M. A'amaundu SUPREME COURT JUDGE I •• ,_:-:..-· ~?} J J 0 -· ., ( <.