Bank of Zambia v Chungu and Others (206/2005) [2008] ZMSC 6 (30 January 2008);

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IN THE SUPREME COURT OF ZAMBIA SCZ Judgment No. 6 of 2008

HOLDEN AT LUSAKA APPEAL NO. 206/2005

(CIVIL JURISDICTION)

B E T W E E N:

BANK OF ZAMBIA APPELLANT

AND

AARON CHUNGU 1^ST RESPONDENT

ACCESS FINANCIAL SERVICES LTD 2^ND RESPONDENT

ACCESS LEASING LIMITED 3^RD RESPONDENT

CORAM: Sakala, CJ., Chibesakunda and Mushabati, JJS.

On 5^th July 2007 and 31^st January 2008

For the Appellant : Mr. N. Nchito with Mr. M. Nchito of MNB

Chambers

For the Respondent : Mr. J.P Sangwa of Simeza Sangwa & Associates

__________________________________________________________________

J U D G M E N T

__________________________________________________________________

Sakala, CJ., delivered the Judgment of the Court.

Cases referred to:

1. Iberian Trust Ltd Vs Founders Trust Investment Co. Ltd [1931] 2KB87

Jelsen (Estates) Ltd V. Harvey [1984] I ALL ER 12

Chiltern District Council Vs. Keane [1985] 2 ALL ER 11)

Mungean V Wheatley, [1856] 6 Exch.465

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Legislation referred to:

1. The Banking and Financial Services Act: Section 84B (a)

Order 52 Rule 4 (2) RSC

This is an appeal against the Ruling of the High Court delivered on 19^th October 2005, in which the High Court dismissed the appellant’s two preliminary issues as being of no merit.

The two preliminary issues were:

1. Whether it is competent to allege and pursue before the High Court, an Order for committal for contempt alleging disobedience of an Order of a superior Court to the High Court;

Whether the Motion for contempt is legally tenable in the absence of specification as to what specific action the Respondent is obliged to undertake under the judgment and/or Order which they have disobeyed.

The history of the appeal is that sometime in April, 2003, the Appellant placed the second and the third Respondents under compulsory liquidation. The Respondents challenged the decision of the Appellant by commencing proceedings in the High Court by way of Judicial Review.

On 1^st September 2004, the High Court delivered its Judgment in the proceedings for judicial review and quashed the decision of the Appellant to place the two Respondent Companies under compulsory liquidation.

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On 3^rd September 2004, the learned trial Judge signed a formal Order of Certiorari. In the Order, an additional remedy of damages against the Appellant, to be assessed by the Deputy Registrar, was included.

The Appellant appealed against both the Judgment and the Order of the High Court. Pending the hearing of the appeal of the main action, the Appellant applied for an Order to Stay Execution of the High Court Judgment and the Order. The High Court refused to grant the application for Stay. However, on 26^th April 2005, a single Judge of this court granted the Order of Stay of Execution.

On 4^th May 2005, the Respondents filed a Notice of Motion for an Order of Committal for contempt of court, alleging that the Appellant Bank had disobeyed the High Court Judgment of 1^st September 2004, and the formal Order of Certiorari dated 3^rd September 2004. Before the Notice of Motion for an Order for Committal could be heard, the Appellant raised the said two preliminary issues.

The trial Judge dealt first with the second preliminary issue. In dealing with the second preliminary issue, the court observed that the Appellant was claiming that there was nothing specified which the Appellant was required to do or not to do under the Judgment; and that in the absence of specification, the Appellant was unable to respond meaningfully to the application for committal for contempt of court.

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The trial Judge referred to the reliefs sought by the Respondents in the application for judicial review, namely: an Order for Certiorari, to quash the decision made by the Appellant to close and place the Respondents into compulsory liquidation; and a declaration that the decision of the Appellant was and is invalid, void and of no effect.

The trial Judge noted that the Appellant defended its action in the application for judicial review. The court then posed the questions whether there was no specific issue for which the Respondents were seeking relief and whether the Appellant was defending no specific issue?

The court pointed out that when it delivered its Judgment in the application for judicial review, it granted the Order for Certiorari and made the declarations sought; and that this was a specific decision which the court made.

The trial Judge then referred to the specific relief that was being sought in the application for committal for contempt, namely:

“An Order that Dr. Caleb Fundanga in his capacity as Governor of the Bank of Zambia as well as Chairman of the Board of Directors of the Bank of Zambia be committed to prison for the Appellant’s contempt of the Judgment of the court delivered on 1st September 2004, and the Order of Certiorari dated 3^rd September 2004, quashing the Appellant’s decision of 11^th April, 2003 to close and liquidate the Applicants”.

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The learned Judge pointed out that there was nothing ambiguous in the above statement which clearly sought to have the contemnor committed to prison for not complying with the court’s decision which quashed the Appellant’s decision to close and place the Applicants’ Financial Institution into liquidation.

The learned Judge noted the Appellant’s contention that it wanted to act on the court’s decision that the Appellant has an alternative remedy under Section 84B (a) of the Banking and Financial Services Act; Cap 387 of the Law of Zambia; but the court pointed out that the alternative was alluded to as obiter dictum and did not form part of the decision of the court.

In relation to the first preliminary issue, the court simply pointed out that it had indicated the relief being sought by the Respondents; that the relief was not the decision of the Supreme Court made on 26^th April 2005, but that the decision of the High Court delivered on 1^st September, 2004 and the Order signed on 3^rd September 2004, which the Appellant allegedly failed to comply with.

For the foregoing reasons, the trial Judge found no merit in the preliminary issues and dismissed them with costs.

Dissatisfied with the Ruling of 19^th October, 2005, in which the High Court dismissed the preliminary issues, the Appellant appealed to this court against that Ruling. The Appellant filed four amended grounds of appeal; namely:

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1. That the learned trial Judge erred in law and in fact when he failed to address his mind to the effect of the Stay of Execution granted by the single Judge of the Supreme Court on 26^th April 2005 in relation to the proceedings before him as the Order had the effect of ousting his jurisdiction. In the alternative that the learned trial Judge misdirected himself when he failed to address his mind to the issue of whether it was competent to allege and pursue before the High Court an Order for Committal for contempt alleging disobedience of an Order of a superior court to the High Court;

2. That the learned trial Judge erred in law and in fact when he held that the motion for contempt contained sufficient particularity to enable the Appellant to defend himself;

3. That the learned Judge erred in law and in fact when he held that the Judgment of 1^st September 2004 contained a specific decision which could be enforced by way of committal proceedings; and

4. That the learned Judge erred in law when he made a finding on the actions undertaken by the Appellant pursuant to Section 84 B(a) of the Banking and Financial Services Act. In the alternative that the trial Judge misdirected himself in law and in fact when he held that the Appellant acted on the obiter dictum which did not form part of the decision when in fact they acted pursuant to Section 84 B(a) of the Banking and Financial Services Act, a statutory power that they can

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exercise and which they exercised and was not challenged by the Respondents in any way or at all.

The Appellant filed written heads of argument and a list of authorities based on three grounds of appeal. The written heads of argument on ground three covered ground four.

The gist of the written heads of argument on ground one is that in addressing the first preliminary issue, the High Court failed to address its mind to what effect the Supreme Court Ruling of 26^th April, 2005 would have in relation to the proceedings of committal; that in normal circumstances, the jurisdiction to commit a person for disobeying a Judgment or Order vests in the court whose Judgment or Order has been disobeyed; that circumstances can, however, arise that oust that jurisdiction; and that one such circumstance is where the Judge vested with such authority is called upon to decide on matters outside his area of competence.

It was pointed out that in the case at hand, there is a Supreme Court Ruling that made critical pronouncements on the Judgment of 1^st September, 2004 and stayed the order of 3^rd September 2004. It was submitted that without doubt, the Ruling of the Supreme Court will require interpretation in the contempt proceedings; and that a High Court Judge is precluded from either interpreting the said Ruling or making any findings on it as it is a court inferior to the Supreme Court.

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It was further submitted that since the High Court cannot interpret the Supreme Court Ruling, its jurisdiction to decide issues of contempt in relation to its order and Judgment has been severely affected to the extent that it has been ousted.

In the alternative on ground one, it was contended that notwithstanding the wording of the Statement accompanying the application for committal, the Respondents are alleging that the Appellant had disobeyed the Supreme Court Ruling. It was submitted that in such an instance, the contempt proceedings cannot be commenced before an inferior court. It was contended that the trial Judge should have declined jurisdiction when presented with the application for committal.

In his brief oral submissions on ground one, Mr. Nchito submitted that when the application for contempt was being made, there was in operation a stay granted by the Supreme Court; and that in that regard, the jurisdiction of the High Court was infact ousted. It was contended that if there was any contempt, it should have been brought before the Supreme Court. Yet, the Ruling of the High Court was that it was the High Court Order which was being disobeyed; when infact there was a stay from the Supreme Court. It was pointed out that even the Respondents were not clear of what they were trying to do because in their affidavit in paragraph 18 they said they were attempting to act on the Ruling of the Supreme Court.

The summary of the written heads of argument on ground two is that the second preliminary issue raised by the Appellant in the court below was that the Judgment

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of 1^st September 2004 in the application for judicial review lacked specificity, and as such, a motion for contempt was not legally tenable; and that in dismissing the second preliminary issue, the court below addressed itself to both the Judgment on judicial review and the motion for contempt and held that both were specific enough to enable the Appellant to defend himself against contempt proceedings.

It was contended that the holding of the court below was erroneous.

In relation to the Judgment of 1^st September 2004, it was pointed out that as noted by the trial Judge; the Judgment granted the relief of Certiorari; quashing the decision of the Appellant to place the 2^nd and 3^rd Respondents under compulsory liquidation; and the relief of a declaration that the decision of the Appellant was null and void and of no effect. It was submitted that in these circumstances, the Judgment is one that is capable of having more than one interpretation in that it could imply that the two Respondent companies be returned to the 1^st Respondent; and that the Judgment could also be read to permit the Appellant to reconsider the issues involving the two, the 2^nd and 3^rd Respondents and arrive at a decision after taking into account what the Judgment had said. It was pointed out that it was important to note that the Judgment did not mandate the Appellant to handover the companies.

It was submitted that since the court was silent on what positive or negative step the Appellant was to take, a potential difficulty arose in determining the precise scope of the form of the Judgment. The case of Iberian Trust Ltd Vs Founders Trust Investment Co. Ltd⁽¹⁾ was cited in support of this submission. In that case, Luxmoore J, in delivering the Judgment of the court stated as follows :

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“In order to constitute a contempt of court for which the directors may be punished there must be willful disobedience either by the company or its servants or its directors to do something which it has been ordered to do. Now turning back to Rowlatt J.’s order, what is it that the defendant company had been ordered to do which the company and its directors have failed to do? In terms, the order does not direct the defendant company to do anything- it says: ‘that the plaintiff do have a return of the said shares within fourteen days.’ Am I to spell out of that an order on the defendant company to do something? I think not. If the Court is to punish anyone for not carrying out its Order, the order must in unambiguous terms direct what is to be done”

Also reference was made to Halsbury’s Laws of England, Vol, 9,4^th Edition, paragraph 59, page 36, wherein, it is stated that contempt proceedings cannot be commenced as a means of enforcing an unambiguous order.

It was further submitted that when the above two authorities are applied to the present case, it is without doubt that we are faced with a Judgment capable of more than one meaning and thus contempt proceedings are not legally tenable. It was pointed out that the order in the Iberian Trust⁽¹⁾ case was infact more forthright than in the present case and yet the court of appeal in the Iberian⁽¹⁾ case refused to read into it what was not specifically stated.

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It was submitted that the trial Judge, therefore, erred when he held that the Judgment of 1^st September 2004 was specific enough to be executed by way of contempt proceedings.

In relation to the motion for contempt, Order 52 Rule 4 of the Rules of the Supreme Court, 1999 edition was cited in great detail. It was pointed out that of particular relevance to ground two is Order 52 Rule 4 (2) which requires that grounds of the application in an action for contempt must be included in the Notice of Motion. It was argued that in the present case, the Respondents sought an order that:

1. “That Dr Caleb Fundanga Governor and Chairman of the Board of Directors of the Bank of Zambia, the Respondent, be committed to prison for the Respondent’s alleged contempt of this Court in disregarding the Judgment made on 1^st September, 2004 and the Order of Certiorari made on the 3^rd day of September, 2004.

That the said Dr. Caleb Fundanga do pay to the applicants’ their costs of and incidental to this application and the order be made thereon.

That such further or other order may be made as to the Court shall seem proper.”

It was submitted that the Notice of Motion in the instant case did not comply with Order 52 Rule 4 (2) RSC as it did not state, on the face of it, the grounds of the application. The case of Jelsen (Estates) Ltd V. Harvey⁽²⁾ was cited in support of this submission. Also cited was the case of Chiltern District Council Vs.

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Keane⁽³⁾ in which a Notice of Motion was served on Mr. Keane which stated grounds of the application to commit in general terms. A complaint was raised as to whether the Notice of Motion complied with Order 52 Rule 4 (2). After quoting Order 52 Rule 4 (2) and (3), Sir John Donaldson MR, in delivering the Judgment of the Court of Appeal, had this to say:

“The Notice of Motion was personally served on Mr. Keane, but it only stated the grounds to commit in general terms. It recited the undertaking and the injunction, and then alleged that there had been a breach. This on the authorities is not sufficient. It has been said in many cases that what is required is that the person alleged to be in contempt shall know with sufficient particularity to enable him defend himself, what exactly he is said to have done or omitted to do which constitutes a breach of Court.

The particular undertakings and injunctions in this case cover a wide range of activities. Mr. Keane was entitled to know whether it was said by the council that he was in breach of every single requirement of those orders or only of some, and if so which of them and the notice failed to give him that information.

Every Notice of application to commit must be looked at against its own background. The test as I have said is: does it give the person alleged to be in contempt enough information to enable him to meet the charge? If for example, a defendant is subject to an injunction to leave a stated house not later than a particular time on a particular day then it would be

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sufficient to say that he had failed to comply with that order, because it only permits one breach, namely failure to leave the house by the time stated. But where the order is not in such simple form and it is possible for the defendant to be in doubt what breach is alleged, then the notice is defective”

It was submitted that from the foregoing legal authorities, it is without doubt that the trial Judge erred when he held that an accompanying statement was specific enough to warrant the hearing of the Motion of Committal. It was further submitted that the error was twofold: Firstly: the ‘specification’ alluded to by the trial Judge was not printed on the Notice of Motion; but on a Statement accompanying the application for leave to issue the Notice of Motion for Committal. It was submitted that this was contrary to Order 52 Rule 4 RSC.

Secondly: the ‘specification’ as upheld by the trial Judge in his Ruling was on all fours within that rejected in the case of Jelsen (Estates) Ltd Vs. Harvey⁽²⁾. It merely stated the court order allegedly disobeyed; but not the acts complained of.

It was further argued, as argued before the trial Judge, that the need to inform the Appellant in very specific terms was due to the fact that contempt proceedings, by their nature, are criminal proceedings; and sanctions, if any derive from courts of criminal jurisdiction. Thus, it was stated in Chiltern District Council vs Keane⁽³⁾ that “ …. Where the liberty of a subject is involved, the court has time and again asserted that the procedural rules applicable must be strictly complied”

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It was submitted that in the absence of grounds of complaint in the Notice of Motion in the present case, the finding of the trial court should be reversed and the application for contempt proceedings be dismissed for being defective.

The gist of the written heads of argument on ground three is that the Appellant raised two preliminary issues in the court below: one relating to the jurisdiction of the court; and the other relating to the absence of specification of what the Appellant was supposed to do.

The Appellant contended that no reference was made whatsoever in the preliminary proceedings to the Appellant’s actions under Section 84 B (a) of the Act. Yet, the trial Judge, in making his Ruling on the preliminary issues, stated as follows:

‘The court is aware that the Respondent has been saying that it wants to act on the Courts decision that it has an alternative remedy under Section 84B (a) of the Act.

The Respondent, as well as its advocates, are aware, just as the Court is, that the above was a mere obiter dictum which did not form part of the decision or the ratio decedendi of the court. The Respondent cannot act on the obiter dictum which is not binding.’

It was submitted that the above expressions were the trial Judge’s concluded views as to whether the Appellant was in contempt or not; and that in so expressing

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himself, the trial Judge failed to recognize the limits on preliminary hearings, trespassed into the merits of the case and thus failed to avoid pre-judgment. It was urged that the trial Judge’s findings should be set aside.

In the oral submissions on ground three, Mr. Nchito submitted that ground three buttresses ground two; and that the court acknowledged that it did not confer the power on the Appellant to act as the power to act was there by law and for that reason the Appellant proceeded to act as per provision of the law.

Mr. Nchito further submitted that there can be no contempt against an order that has been stayed by a superior court as that does not demand any specific action to be done.

Mr. Sangwa, on behalf of the Respondent, informed the court that he did not have time to file written heads of argument; but he was granted leave to respond to the Appellant’s arguments orally. He also filed an authority on behalf of the Respondents.

In his oral response, Mr. Sangwa dealt with all the arguments and submissions on the three grounds together. In his response, Mr. Sangwa pointed out that there was a Judgment of the lower court; which granted Certiorari and subsequently an order was drawn up. The Appellant applied to stay both Judgment and the order of Certiorari. According to Mr. Sangwa, the Ruling of the single Judge of the Supreme Court was very specific; it stayed the issue relating to damages and

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assessment and not the order of Certiorari and not the entire Judgment of the 1^st of September 2004.

Mr. Sangwa pointed out that attempts were made to enforce the Judgment of the court; and when it was not possible, contempt proceedings were commenced. He submitted that it was not correct that the Respondents were trying to enforce the Ruling of the Supreme Court; and that reference to Section 84 B(a) of the Act was merely obiter dictum.

According to Mr. Sangwa, the authorities cited on behalf of the Appellant did not address the issue at hand, which was what was the effect of the Order of Certiorari once issued. That the Appellant’s decision having been quashed, what was the effect of that. According to counsel, the effect of quashing is that it has no effect. Counsel relied on the case of Mungean V Wheatley,⁽⁴⁾ where it was held that a writ of Certiorari delivered to an inferior court suspends the party’s actions; and if he proceeds, it is contempt.

We have carefully reviewed and considered the arguments and the submissions by both learned counsel in some great detail in order to narrow down the issues for determination as raised by the grounds of appeal. We have also carefully perused the Judgment appealed against. A critical examination of the grounds of appeal and the arguments clearly shows to us that they raise two questions for determination; namely: Whether the trial court had jurisdiction to entertain an application for committal for contempt in a matter that had been before a single

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Judge of the Supreme court; and whether the Notice of Motion stated specific grounds of what the Appellant was supposed to do or not to do?

The short summary of the complaint in ground one is that the trial Judge failed to address his mind to the effect of the stay of execution granted by a single Judge of this court on 26^th April, 2005 in relation to the proceedings before the trial Judge as the order of stay of the single Judge of this court had the effect of ousting the trial Judges’ jurisdiction.

The alternative complaint in ground one is that the trial Judge misdirected himself when he failed to address his mind to the issue of whether it was competent to allege, by the Respondents, and to pursue before the trial court an order for committal for contempt alleging disobedience of an order of a superior court to the High Court.

According to the Appellant, in normal circumstances, the jurisdiction to commit a person for disobeying a Judgment or order vests in the court whose Judgment or order has been disobeyed; that circumstances can arise that oust that jurisdiction, one such circumstance is where the Judge vested with such authority is called to decide matters outside the area of his competence.

The Appellant pointed out that in the instant case, there is a Supreme Court Ruling that made critical pronouncements on the trial court’s Judgment of 12^th September 2004; and stayed the order of 3^rd September, 2004. It was submitted that the Ruling of the Supreme Court will require interpretation in the contempt

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proceedings before the High Court; and that a High Court Judge is precluded from either interpreting the Supreme Court Ruling or making any findings on it as it is a court inferior to the Supreme Court.

It was submitted that since the High Court cannot interpret a Supreme Court Ruling, its jurisdiction to decide issues of contempt in relation to the order and Judgment is severely affected to the extent that it has been ousted.

The Appellant contended in the alternative that irrespective of the wording of the Statement accompanying the application for committal, the Respondents are infact alleging that the Appellant had disobeyed the Supreme Court Ruling. It was submitted, on this alternative limb that in such a situation, the contempt proceedings could not be commenced before the High Court; and that the High Court should have declined jurisdiction to entertain the application for committal for contempt.

Further submissions on ground one were that when the application for committal was being made; there was in operation a stay granted by the Supreme Court; that in that regard the jurisdiction of the High Court was in fact ousted; and that if there was any contempt it should have been brought before the Supreme Court.

The short summary of Mr. Sangwa’s response is that there was a Judgment of the High Court which granted Certiorari; followed by the drawing up of the order. The Appellant applied to stay both the Judgment and the order of Certiorari; that the Ruling of the single Judge was very specific; it only stayed the issue of

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damages and assessment; and not the order of Certiorari or the entire Judgment of the High Court of 1^st September, 2004.

In dealing with the first preliminary issue, the trial Judge had this to say:

“As to the first leg of the preliminary issue, I have indicated above, the relief being sought by the Applicants.

The relief is not the decision of the Supreme Court made on 26^th April, 2005 but the decision of the Court delivered on 1^st September, 2004 and the Order made on 3^rd September 2004 which the Respondent failed to comply with.

For reasons given above, I find no merits in the preliminary issue. The same is therefore dismissed….”

It is quite clear to us that the trial Judge in dismissing the first preliminary issue did not address his mind to the effect of the decision of the single Judge in relation to the proceedings for committal that were before him.

It is perhaps significant at this juncture to look again at facts not in dispute. It was common cause that sometime in April, 2003, the Appellant placed the Respondents under compulsory liquidation. The Respondents challenged the decision of the Appellant by commencing an action in the High Court. On 1^st

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September, 2004, the High Court delivered a Judgment quashing the decision of the Appellant to place the two Respondents under compulsory liquidation. The Judgment was followed by a formal order of Certiorari in which an additional remedy of damages was included. We do not understand why the remedy of damages was included when the trial Judge’s Judgment was very clear.

However, it was also common cause that the Appellant appealed against the Judgment of 1^st September and the Order of 3^rd September 2004. It was also common cause that pending the appeal against the Judgment and the Order, the Appellant applied for an order to stay execution of the Judgment and the Order to the trial Judge. The trial Judge refused to grant the stay. But on 26^th April, 2005, the single Judge of this court granted the Appellant an order to stay execution.

If we pose here for a moment, the picture that emerges from the facts not in dispute is that the Appellant having failed to obtain a stay from the trial court, appealed to the Supreme Court and at the same time applied to stay the High Court Judgment of 1^st September 2004 and the Order of 3^rd September 2004 to the Supreme Court.

At this stage, we take note that although we have not seen the proceedings before the single Judge of this court, that it is clear from the single Judge’s Ruling of 26^th April, 2005 that the proceedings between the parties had been moved from the High Court to the Supreme Court, where they were headed:

“In the Supreme Court of Zambia,

Holden at Lusaka, SCZ/8/239/2004”.

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The opening paragraph of the single Judge’s Ruling reads: “The Appellant’s application is for stay of execution of the Order of the High Court made on 3^rd September, 2004.”

However, despite the proceedings now being in the Supreme Court, on 4^th May 2005, the Respondents filed a Notice of Motion in the High Court for an Order of Committal alleging that the Appellant Bank had disobeyed the High Court Judgment of 1^st September, 2004 and the Order of 3^rd September 2004. It is this Notice of Motion for an Order of Committal which made the Appellant to raise the issues that led to the appeal before us. The single Judge of this Court in dealing with the application for stay had this to say:

“I am aware that a mere appeal is not a sufficient ground upon which a stay can be granted. In this case I am doing so because there is merit in the application.”

We are satisfied that the single Judge did acknowledge that there was an appeal against the Judgment of 1^st September 2004 and the Order of 3^rd September 2004.

We have examined the Ruling of the single Judge. We agree with the submissions of Mr. Sangwa that the Ruling of the single Judge was very specific; that it only stayed the issue relating to damages and assessment; and not the entire Judgment of the trial court of 1^st September 2004.

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In our considered view, however, the issue was not the stay or the partial stay of the entire Judgment of the High Court; but whether committal proceedings for contempt of court could be commenced in the High Court when the subject matter was pending in the Supreme Court?

We are satisfied and accept the arguments and submissions that the trial Judge failed to address his mind to the effect of the stay of execution granted by the single Judge of this court. Whether partial or not, we accept the submissions on behalf of the Appellant that the order of stay by the single Judge of this court had the effect of removing the proceedings from the High Court into the Supreme Court; thereby ousting the trial Judge’s jurisdiction in the matter. In short, the trial Judge had no jurisdiction to entertain an application for committal for contempt in a matter that was already before the Supreme Court.

The trial Judge also failed to address his mind to the question of whether it was competent to allege and pursue, before the trial court, an order for committal for contempt alleging disobedience of an order of a superior court in the High Court.

We, therefore, uphold ground one of appeal and hold that the trial Judge erred in law and infact when he failed to address his mind to the effect of the order of stay of execution granted by the single Judge on 26^th April, 2005. That order, although partial, had the effect of ousting the trial Judge’s jurisdiction. It was equally not competent for the Respondents to allege disobedience of an order of the Superior Court in the High Court. Ground one of appeal is, therefore, allowed.

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On ground two, suffice it to state that we agree with the submissions of the Appellant that the Judgment of 1^st September, 2004 was one that was capable of having more than one interpretation. It could imply that the two companies be returned to the Respondent, and could also be read to permit the Appellant to reconsider the issues involving the two companies and arrive at a decision after taking into account what the Judge had said. And since the trial court was silent on what positive or negative step the Appellant had to take, a potential difficulty did truly arise in determining the precise scope of the form of the Judgment.

Equally, the Motion for committal for contempt on the face of it, did not also comply with the provisions of Order 52 Rule 4 (2) RSC as it did not state on the face of it the grounds of the application. The Motion did not specify with sufficient particularity the acts that constituted contempt.

In the case of Jelsen,⁽²⁾ the Motion merely alleged that the Court’s Order had been broken and gave no particulars whatsoever. When it came up for hearing, the Judge at the outset dismissed the Motion because it did not comply with Order 52, Rule 4. (See also Chiltern District Council Vs Keane⁽³⁾).

For the foregoing reasons, ground two of appeal is also allowed.

On ground three, the Appellant’s contention is that the trial Judge erred in law and in fact when he held that the Appellant acted on the obiter dictum which did not form part of the decision, when infact the Appellant acted pursuant to Section 84

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B (a) of the Banking and Financial Services Act, a statutory power that they exercise and which they exercised.

The argument on ground three was that the Appellant only raised two preliminary issues in the court below; namely: one relating to jurisdiction of the trial court; and the other relating to the absence of specifications of what the Appellant was supposed to do. It was submitted that no reference was made whatsoever in the preliminary proceedings to the Appellant’s actions under Section 84 B (a) of the Act. Yet, the court, in making a Ruling on the preliminary issues had this to say:

‘The court is aware that the Respondent has been saying that it wants to act on the Courts decision that it has an alternative remedy under Section 84B (a) of the Act.

The Respondent, as well as its advocates, are aware, just as the Court is, that the above was a mere obiter dictum which did not form part of the decision or the ratio decedendi of the court. The Respondent cannot act on the obiter dictum which is not binding’

The submissions on the foregoing quoted paragraph were that the expressions were the trial Judge’s concluded views as to whether the Appellant were in contempt or not; that in so expressing himself, the trial Judge failed to recognize the limits placed on preliminary hearings, trespassed into the merits of the case and thus failed to avoid pre-judgment; and that the allegations that the Appellant were

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acting on obiter dictum failed to appreciate the fact that the ‘obiter dictum’ is actually a statutory power conferred by an Act of Parliament on the Appellant.

Our short answer to ground three is that whether the remarks by the court relating to Section 84 B (a) of the Act were obiter dictum or not, Section 84 B (a) of the Banking and Financial Services Act empowers the Appellant to take any action against any erring financial institution. The issue of obiter dictum did not arise. We, therefore, allow ground three.

In the result, all the grounds of appeal having been successful, the appeal is allowed. The Judgment of the trial court dated 19^th October 2005, dismissing the Appellant’s preliminary issues is quashed and set aside. We, accordingly, uphold the Appellant’s preliminary issues.

For avoidance of any doubt, we uphold the Appellant’s two preliminary issues. The application for committal for contempt of court is set aside on the grounds of the trial Judge’s lack of jurisdiction and the notice of motion being defective for lack of specifics.

Costs will follow the event, to be taxed in default of agreement.

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E.L. Sakala L.P. Chibesakunda C.S. Mushabati

CHIEF JUSTICE SUPREME COURT JUDGE SUPREME COURT JUDGE