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
