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Court name
Supreme Court of Zambia
Case number
SCZ 8 246 of 2016

Drill Africa Company Limited v Konkola (SCZ 8 246 of 2016) [2018] ZMSC 19 (04 April 2018);

Law report citations
Media neutral citation
[2018] ZMSC 19
Coram
Hamaundu, JS
Musonda, JS
Mutuna, JS

Civil Procedure- Application for leave to appeal – Documents filed with the court must contain draft grounds – Effect of failure to include draft grounds of appeal

Civil procedure – Effects of, and rationale for, money paid into Court before trial – Acceptance of money paid into court after judgment

The High Court held trial in the absence of the Appellant as the Court was satisfied that the Appellant was aware of the court date. The Court proceeded in line with Order 35 rule 3 of the High Court Rules which allows the court to proceed with the hearing of a matter in the Defendants absence where there is proof of service of process relating to the hearing and no probable cause of absence of the Defendant. After the trial, the Court rendered a judgment on 3 June 2016 prompting the Appellant to apply to set aside the judgment and to stay execution pending the application to set aside judgment. Both applications were dismissed by way of a ruling dated 6 July 2016. Following from this, the Appellant applied for leave to appeal against the judgment out of time and leave to appeal against the ruling of 6 July 2016. The High Court considered the affidavit evidence filed in support of the application and found that it merely expressed the Appellant's dissatisfaction at both the judgment and the ruling. It also found that the application did not set out any grounds upon which the leave sought could be granted.

Meanwhile, to prevent execution from being levied the Appellant caused the judgment sum and interest in the sum of K80, 783.84 to be paid into court. By consent, the said sum was later paid out of court to the Respondent. The Appellant renewed the application before a single judge of the Supreme Court. He dismissed the application to renew an application for leave to appeal out of time against a judgment of the High Court dated 3 June 2016 and an application for leave to appeal against a ruling dated 6 July 2016. The basis on which the judge dismissed the applications was that the Appellant did not disclose compelling grounds to enable the Court exercise jurisdiction to grant leave to appeal. As the judgement debt was settled by consent of the parties, the appeal was rendered academic as there was nothing to appeal against since the judgement had been settled. The Appellant then filed a motion to set aside the ruling of the learned judge pursuant to rule 48 (4) of the Supreme Court Rules.

Held:
1. In terms of Order 59 rule 14 sub-rule 22 of the White Book, when advancing arguments
on realistic prospects of success, an applicant must refer to draft grounds of appeal for
the consideration of the court. These draft grounds, as a practice, should be contained
in the documents filed with the Court. This practice affords a court an opportunity to
consider, prima facie, if the proposed grounds have realistic chances of success. The
Appellant neglected to do this in its application both in the High Court and before the
Single Judge and indeed before the Full Bench. Therefore, although this motion is a
renewal of the application which was dismissed before the Single Judge, it is
misconceived for want of the draft grounds of appeal for the intended appeal. It is not
enough for counsel to advance the grounds, as he did, in the skeleton arguments
2. The acceptance of funds paid into Court stays further proceedings in the matter. This is
in relation to moneys paid in and accepted before the beginning of the trial or hearing of
the matter. In addition the rationale for the practice of paying moneys into court is that it
has an effect on the order as to costs which a court will make at the end of the
proceedings and, if made in settlement of an amount claimed, interest stops running
from the date of the payment. The latter is relevant only if the court upholds the claim in
relation to which the moneys were paid into court. The Order does not make provision
for moneys paid in and accepted, as in this case, after the judgment is entered. Further,
whilst Order 22 Rule 3 sub rule 6 prescribes a method of applying for payment of such
moneys out of court, it does not provide for a consent order as a means for payment
and acceptance of moneys out of Court. Notwithstanding this lacuna in the rules, the
circumstances of this case lead to the conclusion that the payment out of court was done
in full and final settlement of the claim because it was made after judgment and issuance
of a writ of execution.
Motion dismissed
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Notes:

Order 59 rule 14 sub-rule 22 of the White Book provides that:
The ground on which leave to appeal is sought must be specified. This can be done either by setting out the
grounds of the proposed appeal in the notice of ex parte application, or by annexing to that notice a draft notice of
appeal.
Order 22 Rule 3 sub rule 6 of the White Book provides that:
The acceptance of money paid into Court, if duly made, has effect in two ways, namely ( 1) whether the money
paid in is accepted before or after the beginning of the trial or hearing of the action, the acceptance will operate as
a stay of further proceedings; if the money was paid in and accepted before the beginning of the trial or hearing of
the action, the Plaintiff is entitled as of right to receive payment of the money without, or in the cases mentioned in
rr.4 and 10, subject to, an order of the Court and to tax his costs; but if the money paid in is accepted after the trial
or hearing of the action has begun, the money may not be paid out to the Plaintiff without an order of the Court,
which order must deal with the costs of the action. The payment in and its amount are matters which the Court
must take into account when exercising its discretion as to costs upon making such order. The stay of further
proceedings resulting from the acceptance of money paid into Court takes effect immediately the notice of
acceptance is given to each defendant, and it operates ( 1) in respect of all further proceedings in the action or in
the particular cause or causes of action to which the acceptance relates, and (2) as against not only the defendant
making the payment but all other defendants sued jointly or in the alternative with him; but such stay does not
extend to the question of costs.
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