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Mopani Copper Mines PLC v Monlo Investments Limited (Appeal 36 of 2011)  ZMSC 17 (13 March 2018);
Civil Procedure – Appeal – Serious misdirection by lower court not raised as ground of appeal – How appellate court will treat it
Civil Procedure – Effect of court becoming functus officio after delivering rulings – Limited jurisdiction to deal with rulings thereafter
On 11 March, 2006, the Respondent issued a writ of summons against a company called Cementation Rockmechanics Civil Exploration and Mining Zambia Limited (the “Defendant”) for K 193 690 876. 25 (now K193 690. 88) together with interest and costs. On 22 May, 2006 the Respondent obtained an attachment order for K 245 000 000 (K 245 000) against the Appellant for monies due to the defendant from the Appellant. Judgment in default of appearance was entered on 9 June 2006. On 15 June, 2006, the Respondent obtained a garnishee order nisi and on 28 June, 2006 the garnishee nisi was made absolute. The Appellant applied to set aside the garnishee order absolute on 7 July, 2006. The application to set aside the garnishee absolute was dismissed on 8 August, 2006. The matter did not end there.
On 22 November, 2006 the Respondent took out a summons for the interpretation of the ruling of 8 August, 2006 and for the taking of an account of how the garnishee had distributed a sum of USD 159 851. 75. The application was heard on 1 February, 2007. In a ruling delivered on 19 February, 2007, the learned judge held that she was satisfied with the statement of account given by the garnishee regarding the distribution of USD 159 851. 75. On 21 January, 2010 the learned judge granted an ex-parte order for leave to issue a writ of fieri facias against the Appellant as garnishee for the sum of K144 230. On 27 January, 2010, the Appellant took out an ex-parte summons for stay of execution of the writ of fieri facias and to set aside the ex-parte order for leave on the ground that it was irregular. In her ruling delivered on 17 March 2010, the
learned judge reversed her earlier rulings.
The Appellant appealed.
1. In her ruling delivered on 17 March 2010, which gave rise to this appeal, the learned judge
reversed her earlier rulings. Surprisingly, the Appellant never raised this aspect of the ruling
as a ground of appeal. Be that as it may, it was so serious a misdirection on the part of the
learned judge that this court is compelled to raise it as it is fundamental to the appeal.
2. Quite apart from the 17 March 2010 ruling disclosing the fact that she did not apply her mind
to the authorities which were deployed before her (even though she was not obliged to
consider them), the judge fell into error when she decided to review her decision because
she became functus officio the moment she delivered her rulings of 8 August 2006 and 19
February 2007. She therefore ceased to have jurisdiction in so far as the two rulings were
concerned. The only limited option which she did not have in this case, was to review the
rulings in accordance with Order 39 of the High Court Rules Cap 27 of the Laws of Zambia.