Civil Procedure – Whether the High Court for Zambia is equivalent to the Divisional Court in England so as to require leave before commencing committal proceedings for contempt
Civil Procedure – High Court rules couched so as to permit actions to be judge driven and disposed of promptly
Civil Procedure – Whether the High Court can summarily dismiss a matter on its own motion in the absence of either party taking issue with the proceedings
The background to the appeal is that the Appellant is engaged in the business of processing, refining and selling petroleum products to various oil marketing companies throughout Zambia. As a result the Appellant sold oil products to the 1st Respondent and the 1st Respondent was indebted to the Appellant in the sum of K 1 374 206 709. 32 (un-rebased), prompting the Appellant to demand payment. The Appellant commenced an action against the 1st Respondent claiming the amount in dispute and simultaneously sought a mareva injunction to restrain the 1st Respondent from removing or disposing of its assets in Zambia until judgment. The Learned High Court Judge granted the mareva injunction ex-parte initially, and subsequently confirmed it after an inter partes hearing.
Later in the proceedings, the Appellant moved the Learned High Court Judge by way of a notice of motion, pursuant to Order 52 rule 4 of the Rules of the Supreme Court (White Book), for an order of committal for contempt of court against the Second, Third and Fourth Respondents. Upon receipt of the process, the Learned High Court Judge scheduled a status conference at which he was informed that the dispute had been settled in respect of the claim for K1 374 206 709. 32 and that the only issue pending before him was in respect of the motion for committal for contempt of court. The Learned High Court Judge duly set the matter down for hearing of the motion on 10 June 2014 and on that day requested counsel for the parties to address him on the issue whether the motion for contempt of court was properly presented in view of the fact that there appeared to be no leave of the court obtained prior to filing it in line with Order 52 rule 2 of the White Book.
In response counsel for the Appellant informed the Learned High Court Judge that he recalled that leave had been granted earlier but could not immediately confirm as he did not have the whole file on the matter. He therefore, sought an adjournment to enable him check his record and revert to the court. The Learned High Court Judge granted the adjournment and at the next sitting of the substantive application counsel for the Appellant informed him that leave had not been sought prior to the filing of the notice of motion, as such, none was granted. He however, proceeded to argue that the lack of leave did not render the motion incompetent because such leave was only necessary if the application was commenced before a Divisional Court. Counsel’s position was that there was no Divisional Court in Zambia so he was prompted to make the application pursuant to Order 52 rule 4 of the White Book which is the applicable rule in Zambia. Counsel argued further that in terms of Order 52 rule 4 of the White Book, there is no requirement for leave to be obtained prior to the filing of a motion for contempt of court. The Lower Court concluded that the High Court of Zambia exercises the same powers, authority and jurisdiction as the Divisional Court in England. He accordingly summarily dismissed the substantive application with costs on his own motion. The Appellants appealed.
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Section 9(1) of the High Court Rules Chap 27 of the Laws of Zambia provides that:
“The court shall be a Superior Court of Record and in addition to any other jurisdiction conferred by the Constitution and by this or any other written law, shall within the limits and subject as in this Act mentioned, possess and exercise all jurisdiction, powers and authorities vested in the High Court of Justice in England.”
Section 10(1) the High Court (Amendment) Act No. 7 of 2011 provides, in part, that:
"The jurisdiction of the court shall, as regard practice and procedure, be exercised in the manner prescribed in this Act ... or any other written law, or by such rules orders or directions of the court as may be made under this Act ... or such written law and in default thereof in substantial conformity with the Supreme Court Practice 1999 (White Book) of England, and subject to subsection (2) the law and practice applicable in England in the High Court of Justice up to 31st December 1999."
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Held:
1. A Divisional Court in England is equivalent to the High Court in Zambia. What this means is that when a party seeks to make an application for committal for contempt before the High Court the same must be commenced in accordance with Order 52 rule 2 of the White Book. This is not only in line with the case law referred to by the Learned
High Court Judge but also the practice and procedure that our High Court has adopted for a long time now. Leave is therefore required prior to moving a motion for contempt of court in the High Court unlike in the Supreme Court. The Appellant had to obtain leave of court in accordance with Order 52 rule 2 of the White Book prior to making its application for contempt of court. Leonard Banda v Dora Siliya and Mumba (2013) 3 ZR 174 followed.
2. The High Court Rules are couched in a manner that all actions before that court are Judge driven, which entails that a Judge of that court has the responsibility of ensuring that all actions before him are stirred to their logical conclusion promptly. In doing so, the High court has the responsibility of ensuring that it adopts the quickest method of disposing of a matter before it, justly and having, afforded the parties an opportunity to be heard. To achieve this, there is built in the practice and procedure of the High Court and indeed appellate courts, a system whereby, an obviously hopeless, frivolous or vexatious matter may be dealt with at interlocutory stage without having to await a full hearing. This ensures that there is a saving on the already overstretched resources of the court and indeed that matters are disposed of at least cost to the parties. A robust judge must ensure that he is alert and invokes the inherent jurisdiction vested in him of weeding out hopeless, frivolous and vexatious matters and those wrongly presented before him after giving the parties an opportunity to be heard. A Learned High Court Judge is not deprived of the duty of exercising this discretion based on the fact that a party has submitted to such proceedings whose commencement has been called into question because the mere fact of submitting to such proceedings does not cure the defect nor does it amount to acquiescence of the defect. Finsbury Investments Limited v Antonio Ventriglia, Manuel Ventriglia and Ital Terrazo Limited (in receivership) SCZ Judgment No. 42 of 2016 followed.
3. Order 14A rule 1 of the White Book permits a judge of the High Court to raise an issue on his own motion and to dismiss the substantive matter if the determination of the issue substantially disposes of the matter. The explanatory notes to the foregoing Order under Order 14A rule 2 sub-rule 2 of the White Book indicate that “... the court may proceed to make such determination at any stage of the proceedings...”. The Lower Court properly exercised its jurisdiction because the 4 conditions set out in Order 14A rule 2 sub rule 2 of the White Book were met. The Respondents intimated their intention to defend the motion by filing affidavits in opposition. The question posed was suitable for determination without a trial or hearing because its determination hinged on the interpretation of the law, practice and procedure and not findings of fact. The
determination also resolved the matter with finality because it rendered the hearing of the substantive application otiose. Lastly, the Court invited the parties to address it on the issue prior to rendering its ruling.
