The relevant background to the appeals herein may be
summarised as follows.
The dispute between the parties, in both appeals, commenced
in the High Court by way of civil action. After all the parties had filed their
pleadings, it was agreed, at the pre-trial conference stage, that a specific
point of law be determined by the High Court by way of Special Case procedure.
The point of law to be determined was the legal effect of section 54 of the
Banking Act [Chapter 24:20] on any shareholder of a banking institution placed
under curatorship.
According to the judgment of the court a quo, it purported
to proceed in terms of a joint pre-trial conference minute dated 11 March 2015.
More importantly, the learned judge stated that he was dealing with the Special
Case agreed by the parties in a document that was signed by all the parties.
The document was dated 11 March 2015 but date-stamped 19 October 2015. The
learned judge then set out the specific point of law to be determined and
proceeded to expound his interpretation of the import of sections 53, 54 and 55
of the Banking Act [Chapter 24:20]. However, it is apparent from the judgment
of the court a quo that it failed to determine the question stated by the
parties in the following respects;
(i) Firstly, it did not articulate the answer to the
question in the operative part of its judgment.
(ii) Secondly, it delved into questions that were not
properly before it and determined them in its operative order without
indicating the procedural or jurisdictional basis upon which it was empowered
to do so.
In our view, the court a quo did not confine itself to the
specific issue before it and thereby misdirected itself.
We note, in passing, that the joint pre-trial conference
minute referred to in the judgment of the court a quo
does not form part of the record before us. None of the counsel who appeared in
this matter was able to shed any light on the existence or otherwise of this
supposed minute.
In our view, the absence of the minute is a
fundamental irregularity that should be rectified in due course so as to ensure
substantial compliance with the procedure prescribed in civil trials.
In the result, the appeals are partially allowed on
the basis that:
(i) The court a quo did not clearly and definitively
determine the specific legal issue that was referred to it for determination;
and
(ii) It proceeded to grant relief that was not
specifically sought in the Special Case referred to it.
Accordingly, it is ordered that:
1. The appeals herein be and are hereby partially allowed.
2. The judgment of the court a quo be and is hereby set
aside.
3. The matter be and is hereby remitted to the court a quo
for a proper determination of the Special Case before it.
4. Each party shall bear its own costs.
