GWAUNZA
JA:
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$26,076,252.00 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 USD3,057,199.00, 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 reinstated 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 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,
in particular, that the appellant's notice of appeal did not
satisfy the provisions of Rule 29 of the Supreme Court Rules. This
Rule provides that;
“29.
Entry of appeal
(1)
Every civil appeal shall be instituted in the form of a notice of
appeal signed by the appellant or his legal representative, which
shall state
—
(a)
the date on which, and the court by which, the judgment appealed
against was given;
(b)
if leave to appeal was granted, the date of such grant;
(c)
whether the whole or part only of the judgment is appealed against;
(d)
the grounds of appeal in accordance with the provisions of r 32;
(e)
the exact nature of the relief which is sought;
(f)
the address for service of the appellant or his attorney;”
The
wording of the provision shows that the Rule is mandatory in nature,
meaning that any document labelled 'Notice of Appeal' must comply
with it in order to be a valid notice of appeal.
The
information required in terms of this provision must be clearly set
out even where it may be obvious or deducible from the given text of
the grounds of appeal.
The
purported notice of appeal in
casu,
in the court's view did not meet the requirements set out in the
mandatory provision cited. It also fell short in other respects as
indicated below.
The
respondents are correct in the submission that the appellant's
failure to pray for the success of the appeal in this court before
the judgment a
quo
could be set aside and substituted, constitutes a serious defect in
the notice of appeal.
Rule
29(1)(e) is specific in its language and requires that the relief
sought be exact and competent so that the court is left in no doubt
as to what exactly the appellant seeks.
In
Ndlovu
v Ndlovu and Another,
SC 133-02, MALABA JA, as he then was, dealing with a similarly
defective notice of appeal, held that;
“The
exact nature of the relief sought was not stated. What was prayed for
in the notice of appeal was that the judgment of the court a
quo
be
dismissed with costs. It is the appeal which is dismissed or allowed.
If the appeal is allowed the judgment or decision appealed against is
then set aside and a new order substituted in its place. In this case
it was not known what order the appellants wanted this Court to make
in the event the appeal succeeded.”
These
words are fully applicable to the circumstances of this case. The
respondents point in
limine
in this respect is accordingly upheld.
The
second point in
limine
raised by the respondents, concerning new relief being sought on
appeal by the appellant, also has merit.
As
correctly observed, the appellant approached the court a
quo
seeking to reinstate his claim on the third respondent's list of
creditors in the office of the Master of the High Court. The
application a
quo
having failed, the appellant on appeal now sought an order granting
him leave to register his claim for payment of USD3,057,199.00 by the
third respondent, for purposes of enforcement.
This
request presupposes, quite erroneously, that the High Court made an
order reinstating his claim on the creditors list.
This
not having happened, the relief now sought is not one that is open to
this Court to grant.
An
appeal court by nature is one that considers and assesses the
correctness or otherwise of the decision of a lower court on any
particular issue. Where no such issue is considered by an inferior
court, it follows generally, that there is nothing for the appeal
court to determine.
It
is in the appellant's interest to fully appreciate this point,
which was aptly captured in
Dynamos
Football Club (Pvt) Ltd & Anor v ZIFA & Ors
2006 (1) ZLR 346 (S) 355. MALABA JA (as he then was) in that case
held that generally a party cannot seek, on appeal, relief that they
did not seek in the lower court.
See
also Goto
v Goto
2001 (2) ZLR 519 (S) where the court held that it was not open to the
appellant in that case, in the absence of an amendment to her
declaration, to claim on appeal something which she did not claim in
the court a
quo.
The
exception to this rule was outlined in the Dynamos case (supra)
where it was held as follows;
“There
are, however, other decisions to the effect that the appellate court
has a discretion in appropriate cases to grant relief claimed for the
first time on appeal if it is satisfied that all the facts on which
the court of first instance would have decided the matter had it been
raised with it were available for its consideration and such facts as
are essential to the decision are common cause or well-nigh
incontrovertible. See Workmen's Compensation Commissioner v
Crawford and Anor 1987 (1) SA 290 at 307G; Donelly v Barclays
National Bank Ltd 1990 (1) SA 375 at 380I-381A.”
When
this is applied to the facts of this matter, it is evident that the
requirements listed, which would have entitled the appellant to seek
the relief in question for the first time on appeal, have not been
met.
Related
to this issue, this Court finds, as did the court a
quo,
that the amount claimed by the appellant was not converted into US
dollars by a court of competent jurisdiction.
It
was not enough for the appellant to attempt a conversion on his own,
using a rate that was not known and coming up with a figure which no
court had endorsed.
Consequently,
the appellant (a
quo)
failed to establish a proper basis for the inclusion of the US dollar
amount that he sought, on the third respondent's list of creditors.
The
judgment of the court a
quo
cannot, in this respect, be faulted.
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 misjoinder 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.
It
is noted that a number of matters have been struck off the roll by
this Court on the ground that the relief sought was not exact in
nature and that as a result the related notice of appeal was
incurably defective. See
Ndlovu
& Anor v Ndlovu & Anor (supra).
However,
in this case, the court found that the appeal was not only incurably
defective but wrong and bad in law.
The
appeal could therefore not properly be struck off the roll because
the appellant had no avenue, legally or procedurally, to follow in
case he was inclined to bring the same appeal before this Court.
It
is emphasized in this respect that the appellant could not have
secured the relief that he sought in the court below from the first
respondent, for the simple reason that he had ceased to be the
Judicial Manager of the third respondent, which in its turn had
ceased to be a company under judicial management. There was,
therefore, no longer a list on which the appellant's claim could be
included.
In
addition to this, the
second respondent was improperly sued from the beginning because it
was not an interested party in the dispute, it being the first
respondent's employer.
Given
that the appellant's notice of appeal was, for the reasons stated,
fatally defective, that he sought relief that was incompetent and
that he sought to sue parties that not only had no interest in the
suit but, in the case of the first and third respondents, had ceased
to possess the status
indicated, the court's unanimous view was that the appeal ought to
be dismissed, not struck off the roll.
GUVAVA
JA: I
agree
ZIYAMBI
AJA: I
agree
Atherstone
& Cook,
respondents legal practitioners
