PATEL
JA: At
the hearing of this matter, counsel for the respondents raised the
preliminary points that the appeal was invalid and that the relief
sought by the appellant was incompetent. His argument ran as
follows.
Firstly,
the court a
quo
determined the application before it by holding that it was not
urgent. Its finding as to the absence of jurisdiction only formed
part of its reasoning and was purely obiter.
Again, the court did not enquire into the substantive question as to
whether or not the stay of execution sought by the appellant should
be granted. It did not make any decision on the merits of the matter
and, therefore, its decision was purely interlocutory. Consequently,
as the appellant did not seek or obtain any leave to appeal, as
required by law, the appeal is not competent for want of such leave.
Additionally,
the notice of appeal is also incompetent because it does not state
the date when leave to appeal was granted, as is required by Rule
29(1)b) of the Rules of this Court.
Secondly,
the relief sought by the appellant is for the dismissal of the points
in
limine
raised by the respondents in the court below and for the application
before that court to be granted in terms of the draft order. This, it
is submitted, is incompetent because the substantive merits of the
relief sought were not considered or determined by that court.
Dealing
with the first point, section 43(1)d) of the High Court Act [Chapter
7:06]
provides that no appeal shall lie
from an interlocutory order or interlocutory judgment made or given
by a judge of the High Court without the leave of that judge or, if
that has been refused, without the leave of a judge of the Supreme
Court.
What
is to be determined in
casu
is the nature and effect of the decision of the court a
quo.
Prior
to that decision, the respondents had obtained a writ of execution
against the movables of the appellant to satisfy the sum of
US$291,214.13 awarded by the arbitrator. They had also proceeded to
serve an application for a garnishee order on the applicant and its
bankers, which operated to freeze the appellant's bank account.
Thus,
as at the time of its urgent application, the appellant was exposed
to the imminent disposal of its library books, computers and other
equipment, as well as the inability to access its bank account.
On
these facts, we take the view that the court's refusal to deal with
the matter as being urgent, whether correctly or otherwise, had the
effect of finality. In that sense, the decision was final and
definitive and not merely interlocutory.
As
for the jurisdictional aspect, the Court is unable to agree with Adv.
Ochieng
that the finding of the learned judge declining jurisdiction to hear
the application was simply obiter.
He
specifically addressed his mind to the question of jurisdiction and,
having found that no reasons had been advanced for departing from the
need to exhaust the remedies available in the Labour Court, he held
that “the two preliminary points raised by the respondents must be
found in favour of the respondents”.
This
constituted a positive ruling on the jurisdictional point that was
not merely ancillary or incidental to the finding of non-urgency.
We
accordingly hold that the appeal is not incompetent for want of the
appellant having obtained leave to appeal from the court a
quo
or from this Court.
Turning
to the second point, it is trite that an appeal must be directed
against the actual decision that is appealed against.
However,
it would be premature for us to deal with this aspect of the appeal
at this stage. Properly regarded, it cannot be disposed of as a
preliminary issue. Rather, it is a matter for determination as and
when the appeal is heard on its merits.
In
the result, both points in
limine
taken by the respondents are hereby dismissed, with no order as to
costs. The appeal is postponed sine
die.
MALABA
DCJ:
I agree
GOWORA
JA:
I agree
Ziumbe
& Partners,
appellant's legal practitioners
Kadzere,
Hungwe & Mandevere,
1st
and 2nd
respondents legal practitioners
