On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list.Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017. The appellant wrote to the Registrar requesting the reasons for the order. ...
On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list.
Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017. The appellant wrote to the Registrar requesting the reasons for the order. These are they.
The facts of this case are as follows:
The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252 after quantification by the Labour Court.
However, before the third respondent could make any payment, it was placed under judicial management. The first respondent, who works for the second respondent, was appointed the Judicial Manager.
The appellant then filed with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors. The claim was provisionally accepted but later revoked at the instance of the first respondent.
This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199 - without an order of court converting his Zimbabwean dollar claim to United States dollars.
He had, it seemed, done the conversion of the amount himself.
The appellant then approached the court a quo seeking to be re-instated on the list of creditors.
The specific order that he sought read as follows:
“It is ordered that:
1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.
2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.
3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:
(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.
(b) Interest at the prescribed rate on all overdue payments.
(c) First, second, and third respondent pay costs of suit.”
A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect that there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.
The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;
(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and
(b) The claim lodged by the appellant before the Master of the High Court was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.
Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief:
“It is prayed that;
1. The High Court judgment be set aside.
2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.
3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.
4. The respondents pay the whole litigation cost for this matter.”
In their heads of argument, the respondents raised three points in limine with regards to the relief sought:
(i) Firstly, they contended that the appellant failed to pray for the success of his appeal in this court, hence, the relief sought was incompetent.
(ii) Secondly, they argued that the relief which the appellant was seeking, on appeal before this Court, was different from that which he sought in the court a quo.
(iii) Thirdly, the respondents argued that the relief sought was 'fatally defective' in that the appellant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.
In response to these points in limine, the appellant, in his heads of argument, argued that there is no provision in the Rules which requires a party to expressly state whether or not the appeal should succeed as the judges can themselves simply state that the appeal succeeds or not.
He explained, that, the intention that the appeal succeeds is apparent from the very act of appealing itself.
With regards to the allegation that he now seeks what he did not seek in the court a quo, the appellant's position was that only the method of enforcement had changed but he still sought the same relief.
On the point that he was not seeking any substantive relief against the first two respondents except for costs, the appellant argued that it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt.
The Court found there was merit in the respondents points in limine...,.
Finally, and as correctly observed by the respondents, the appellant's claim for costs against parties from whom no substantive relief was sought was incompetent and therefore not to be sustained.
In this respect, the court notes, that, the appellant, in his draft order, did not seek the setting aside and substitution of the High Court's decision upholding the point in limine concerning the mis-joinder to the proceedings of the second respondent.
That part of the court a quo's decision therefore stands unchallenged, with the result that the second respondent was, in reality, wrongly cited in this appeal.
It follows that the order of costs sought against it is incompetent.
In any case, the court finds no merit in the appellant's submission, that the second and third respondents were liable to him 'in delict' and are therefore properly sued for costs.
The proceedings a quo were clearly not delictual in nature, and, the appellant's claim for costs cannot, by that token, be founded on them.
