William Aidoo (Sued as Chairperson for Expatriate Teachers Committee) v Final Frontiers Africa Holdings Limited (Sued as Consultant for Expatriate Teachers Committee) (APPEAL NO. 244/2023) [2024] ZMCA 112 (31 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 244/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: \VILLIAM AIDOO (Sued as Chairperson fo r Expatn Teachers Committee) 1 ST APPELLANT FINAL FRONTIERS AFRICA HOLDINGS LIMITED (Sued as Consultant for Expatriate Teachers Committee) 2ND APPELLANT AND MORRISON NYARKU OBENG & 31 OTHERS RESPONDENTS THE ATTORNEY GENERAL 33RD RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 3()th April, 2024 and 31st May, 2024. For the Appellants Ms. M. Mukupa and T. Kasweshi - Messrs Ellis and Company For the Respondents : Mr. J. Madaika, Messrs J & M Advocates For t he 33rd Respondent Ms. K. Mofya, Acting Senior State Advocate, Attorney General's Chambers JUDGMENT NGULUBE, JA, deliver ed th e Judgmen t of th e Cou rt. Cases referred to: 1. 2. Stanley Mwambazi vs Morrester Farms Limited (1977) Z. R. 108 Simeza Sangwa & Associates vs Hotellier Limited & Ody's Works Limite d-SCZ/ 8/ 402/2 01 2 3 . Twampane Mining Co-operative Society Limited vs E and M Storti Mining Limited -SCZ Judgment No. 20 of 2011 . 4 . Zambia Revenue Authority vs Nasando Isikando & 3525 Others - SCZ/ 8/ 340/ 2012 Balkanbank vs Taher /1995} 2 All ER 904 Comhill Insurance Plc vs Barclays [1992} CA Transcripts 948 5. 6. Legislation referred to: 1. The State Proceedings Act, Chapter 71 of the Laws of Zambia Ot her works referred to: 1. Rules of the Supreme Court (White Book) 1999 Edition 2 . Halsbury's Laws of England, 3rd Edition 3 . Black's Law Dictionary, 8th Edition 1.0 INTRODUCTION 1. 1 This is an appeal against the Ruling of the Honourable Mrs. Justice R. Chibbabbuka , High Court Judge- General Division in which she ordered that t he 33rd respondent should pay the monies due to the 1 st to 32nd respondents into Court. -J2- 2.0 BACKGROUND TO THE DISPUTE IN THIS APPEAL 2.1 The brief background to the matter is that the 1st to 32nd respondents (the plaintiffs in the Court below) commenced a matter seeking a mong oth er reliefs: i. A dee laration that the varied Consent Judgment dated 25th July, 2020 was procured by fraudulent misrepresentation or mistake by the 1 st and 2 nd appellants (the defendants in the Court below) by adding 300 more persons without recourse to the respondents; ii. An Order that the amounts due to all similarly circumstanced plaintiffs under the consolidated cause number 2007/HP/201 and similarly circumstanced plaintiffs who were not party to the consolidated matter be assessed and determined by the Court and that the 1 st and 2nd appellants provide a comprehensive list of all similarly circumstanced expatriate teachers; iii. An Order that the 3rd respondent directly pays the 1 st to 32nd respondents the amounts now outstanding according to the number of teachers and teaching contracts executed between the 1 st to 32nd respondents and the 33rd respondent; iv. An Order that the 33rd respondent not disburse any further payments to the 1st and 2 nd appellants until this -J3- matter is determined or until further order by the honourable Court; and v. Costs. 2.2 The respondents made an application for an order for payment of money into Court by the 33rd respondent, pending determination of the matter. They contended that they had been receiving erratic payments for their dues from the 33rd respondent which were made through the 2nd appellant. That the 2°d appellant has been misappropriating money meant for the respondents and similarly circumstanced expatriate teachers. 2 .3 It was averred that the respondents discovered after the commencement of the present action that the 2 nd appellant had requested to be paid by the 33rd respondent monies due to the 1 st to 32nd r espondents . That if the monies were paid to the 2 °d appellant, they would not properly be distributed and the action would be rendered nugatory. 2.4 They contended that it was in the interest of justice to order that the 33rd respondent directs the Ministry of Finance to pay the money into Court pending determination of the matter instead of paying to the 2°d appellant. That if the money was paid to the 2nd -J4- appellant as was done previously, the respondent would h ave no recourse to recover their dues. 3.0 DECISION OF THE LOWER COURT 3.1 The learned Judge considered the evidence before her and was of the view that if the 33rd respondent continued remittance of the respondents' dues to the 2 nd appellant, the Court's Judgment would be rendered an academic exercise if the varied Consent Judgment was set aside. The lower Court was also of the view that if the application was not granted, it was possible that persons who are not entitled to payment from the 33rd respondent would receive payment. That it was in the interest of justice that the monies owed to the expatriate teachers is paid into Court pending determination of the matter. 4 .0 THE APPEAL 4.1 Dissatisfied with the Ruling of the Court below, the appellants launched this appeal advancing the following four grounds- 1. The Court below m isdirected itself in f inding that it was in the best interest of justice to grant the 1 st to 2nd respondents' application for an order for payment of money into Court; -JS- 2. The Court below misdirected itself when it allowed the 1st to 32nd respondents' application for an order for payment of money into Court pending hearing and determination of the matter without having afforded the appellants and the 33rd respondent an opportunity to be heard; 3. The Court below misdirected itself when it granted the 1st to 32nd respondents' application for an order for payment of money into Court notwithstanding the Consent Order for stay of proceedings filed into Court by the parties on 11 th May,2023;and 4. The Court below erred in law in granting an application anchored on Order 29 of the Rules of the Supreme Court of England against the State. 5.0 THE APPELLANTS' ARGUMENTS 5.1 The appellants filed Heads of Arguments into Court. Grounds one and two were argued concurrently while the other grounds of appeal were argued seriatim. 5.2 In support of grounds one and two, it was submitted that the Ruling being assailed was not made in the interest of justice because the appellants and the 33rd respondent were not heard. 5.3 It was submitted further that by Consent Order dated 11 th May, 2023 the parties executed a Consent Order to stay proceedings for -J6- 30 days in order to secure the appellants and the 33rct respondents ' opportunity to be heard on t h e a pplication in the event that the ex-curia settlement failed. That however, the Court below did not sign the Consent Order which was filed a week before the Ruling but proceeded to deliver the Ruling dated 17th May, 2023 . 5.4 The arguments advanced in support of ground three were the same as those in support of grounds one and two. Save to submit that that prior to 14th May, 2023, which was the date of the Ruling, the parties agreed to extend the time to facilitate an ex curia settlement, in accordance with Order 11 Rule 2 of the High Court Rules. That the lower Court did not adhere to Order XIX Rule 3(2) of the High Court Rules, Practice Direction No. 10 of 1968 and Article l 18(2)(d) and (e) of the Constitution of Zambia wh ich demonstrate the spirit of the law regarding the facilitation of ex curia settlements and not paying undue regard to procedural technicalities. To buttress this argument, reference was made to the cases of Stanley Mwambazi vs Morrester Farms Limited, 1 Simeza Sangwa & Associates vs Hotellier Limited & Ody's Works Limited2 and Twampane Mining Co-operative Society L i mited vs E and M Storti Mining Limited. 3 ·J7· 5.5 Counsel submitted th at the lower Court gave no indication that the Consent Order would not be sign ed and did not give the appellants and the 33rd respon dent a n oppor tunity to be heard in opposition to th e application, which was the intention of the Consent Order. 5.6 In ground four , it was argued that the effect of the lower Court's Ruling was that it essentially granted an injunction and an order for delivery of property against the state. Further that the Ru ling prohibited the state from making payments th rou gh the appellants and made an order to pay the monies available to the Court. That the application in the lower Court was based on Order 29 of t he Rules of the Supreme Court which provides for injunctions, deten tion and/ or preservation of property but the application is prohibited by law in Section 16 of the State Proceedings Act, Chapter 71 of the Laws of Zambia. That this Section prohibits the grant of an injunction against the State. For the definition of injunction, reference was made to Order 29/lA/2 of the Rules of the Supreme Court, Halsbury's Laws of England 3 rd Edition and the Black's Law Dictionary 8th Edition. -J8- 5.7 Lastly, it was submitted that for the foregoing reasons, this Court should set aside the Ruling of the lower Court. 6.0 HEARING 6.1 At the hearing of the appeal, the learned Counsel for the appellants relied on the grounds of appeal and heads of argument filed. The learned Counsel for the respondents Mr. Madaika and Ms. M. Mofya from Attorney General's Chambers were not permitted to file arguments in Court as they were way out of time and did not seek leave to file the same in the proscribed time. 7.0 CONSIDERATION OF THE MATTER AND DECISION OF THE COURT 7 . 1 We have carefully considered the record of appeal, the grounds of appeal and the Ruling appealed against. The grounds of appeal advanced by the appellants revolve around the lower Court's order that the 33rd respondent pays the sums due to the 1st to 32nd respondents into Court. The grounds of appeal shall therefore be addressed concurrently as they are intertwined. 7 .2 This appeal raises three issues: whether it was in the interest of justice for the lower Court to have made an order for payment of money into Court without g1v1ng the appellants and the 33rd -J9- respondent an opportunity to be heard; whether it was proper for the Court below to grant an order for payment into Court notwithstanding the Consent Order signed between the parties; and whether it was proper for the Court to grant an order of payment into Court which is equivalent to granting an injunctive relief against the state. 7 .3 Regarding the first issue, it was argued that the appellants and the 33rd respondent were not given an opportunity to be heard. We have perused the record of appeal and the record of proceedings does not show what transpired at the hearing of the application for an order for payment of money into Court. However, on page 5 of the heads of argument the appellants explain what transpired at the hearing of the application for extension of time on 12th December, 2022. According to the appellants, at the sitting of 12th December 2022, the Court adjourned the matter for a Ruling on 14th May, 2023. 7. 4 This could not have been a Ruling for extension of time because the Court had already granted the application. It is therefore safe to conclude that the matter was adjourned for a Ruling on the application for an order for payment into Court and the lower Court directed the parties to file their affidavits in opposition. -JlO- 7.5 This position is confirmed on page R4 of the Ruling of the application for an order of payment into Court on page 18 of th e record of appeal, where the lower Court stated that- "At the hearing of 12th December, 2022, this Court directed that this application will be determined on the filed documents. The defendants were ordered to file their opposing affidavits and arguments, if any. On perusal of the record, this Court notes that the defendants have not filed any opposing arguments." 7 .6 We are therefore of the considered view that the appellants and the 33rd respondent were given an opportunity to be heard through the affidavits in opposition which they were directed to file into Court. The appellants and the 33rd respondents had about five (5) months to file affidavits in opposition but they did not do so. The lower cannot therefore be faulted for proceeding in the manner it did. 7. 7 The second issue raised by the appellants is that the Ruling of the lower Court was proper in view of the fact that the parties had executed a consent order dated 11th May, 2023 to secure an opportunity for the appellants and the 33rd respondent to file an affidavits in opposition. That the Consent Order was for stay of proceedings for 30 days pending the parties' exploration of -J11- possible ex curia settlement, but the Court proceeded to deliver th e Ruling on 17th May, 2023. 7.8 We have per used clause three (3) of t h e Consent Order staying proceedings pending ex curia discussions which is on page 10 1 of the record of appeal. It provided as follows- "That if no Consent 0rder/Judgment is filed by the parties within the stated thirty (30) days, then the matter shall, after the lapse of the said thirty (30) days, become active agai n and the defendants shall be at liberty to f i le affidavit(s) and skeleton arguments to the application for an order d irecting the 3 rd defendant to pay monies into Court. " 7 . 9 Clearly the intention of the parties was that the proceedings in the lower Court would be stayed for thirty (30) days after which the appellants and 33rd respondent who would be at liberty to file affidavits in opposition to the application. 7.10 It is important to note the sequence of events that occurred prior to the parties executing the Consent Order. At the hearing of the application for extension of time on 12th December 2022, the Court granted the said application and adjourned the matter to 14th May, 2023 for Ruling. The Court directed that the application for payment of money into Court would be determined on the -J12- documents and the parties would file into Court their affidavits in opposition. 7 .11 After the hearing of 12th December, 2023, the affidavits in opposition were not filed but the parties proceeded to file the Consent Order staying proceedings on 1 1th May, 2023. By this date, the Court had already ordered the parties to file their affidavits in opposition. By entering into the Consent Order the parties were effectively varying the lower Court's direction to file the affidavits. The said Consent Order was not approved by the lower Court prior to delivering the Ruling. 7.12 It is trite that a Consent Order takes effect once it is approved by the Court. In the case of Zambia Revenue Authority vs Nasando Isikando & 3 , 525 Others4 the Supreme Court of Zambia relied on the English case of Balkanbank vs Taher5 where Lord Justice Staught on cited the case of Cornhill Insurance Plc vs Barclays,6 in which it was held that- "When a Judge approves a Consent Order, it takes effect as if made by him after argument." 7.13 It follows that since the Consent Order was not approved by the lower Court, it did not take effect and what the parties agreed upon merely remained an agreement between them. This implies -J13- that the order given by the lower Court for the appellants and the 33rd respondent to file the affidavits in opposition was still subsisting at the time the Ru ling was delivered. We are therefore of t h e firm view t h at the lower Court was on firm ground when it proceeded to deliver the Ruling despite the Consent Order executed by the parties. 7 .14 The third issue raised by the appellants is that the Ruling of the lower Cou rt was tantamount to granting injunctive relief against the state. For this position, the appellants relied on Section 16 of the State Proceedings Act, Chapter 71 of the Laws of Zambia, which prohibits the Court from granting injunctive reliefs against the state. The basis of the appellants' submission is that the lower Court ordered the 33rd respondent to pay the money owed to the respondents into Court. 7 .15 We find it necessary to address our minds to the provisions of Section 24 of the State Proceedings Act which provides for attachment of moneys payable by the state. It provides as follows "(l) Where any money is payable by the State to some person who, under any order of any court, is liable to pay any money to any ot her person, and that ot her person would, if the money so payable by the State were money payable by a subject, be entitled u nder rule s of -J14- court to obtain an order for attachment thereof as a debt due or accrui ng due, or an order for the appointment of a sequestrator or receiver to receive the money on his behalf, the High Court may, subject to the provisions of this Act and in accordance with rules of court, make an order restraining t he first-mentioned person from receiving that money and d irect ing payment thereof to that person or to t he sequestra t or or receiver. " 7 . 16 This Section allows for the Court to restrain any person entitled to receive money on behalf of another, from receiving that money and directing the payment to a sequestrator or receiver. In the present case it is clear that the parties had entered into a Consent Order for payment of money by the 33rd respondent to the 1st to 32n d respondents. Therefore, this is a debt that is due to the 1 st to 32nd respondents. The appellants received the money on their behalf. 7 .17 The said Consent Order is the subject of the proceedings in the lower Court in which the respondents alleged that the appellants misappropriated the money paid by the 33rd respondent. It is therefore our considered view that it was proper for the lower Court to have ordered for payment of monies due to the respondents into Court. -JlS- 8.0 CONCLUSION 8.1 In the view we have taken, this appeal has no merit and we accordingly dismiss it. We award costs to the respondents, to be taxed in default of agreement. P. C. M. NGULUBE COURT OF APPEAL JUDGE Cci K . MUZENGA COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -J16-