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Court name
Supreme Court of Zambia
Case number
Appeal 116 of 2016

African Banking Corporation Zambia v Mubende Country Lodge Limited (Appeal 116 of 2016) [2020] ZMSC 18 (26 March 2020);

Law report citations
Media neutral citation
[2020] ZMSC 18
Case summary:

Civil Procedure – Interpleader proceedings – Purpose of Interpleader proceedings – Whether an injured third party can claim damages for wrongful execution in interpleader proceedings
Civil Procedure – Order 14A of the White Book – Whether conditional memorandum of appearance amounts to an intention to defend

Headnote and holding:

Headnote

This is an appeal from a ruling of the High Court which declined to grant the Appellant’s application to dismiss the matter on a point of law. On 24 June 2015, the Appellant issued a writ of possession under Cause No 2009/HPC/0735 which was executed on Plot Nos 9181/M, 9182/M and 9184/M Luanshya where the Respondent conducted its business. Being a non-party to that matter, the Respondent issued a notice of claim by way of interpleader in which it claimed ownership of all the goods and chattels seized in execution of the writ of possession. Whilst the interpleader proceedings were pending, the Respondent took out an action against the Appellant and the Sheriff of Zambia claiming among other things, damages for wrongful execution and trespass on its business premises.
On 23 October 2015, the Appellant filed a conditional memorandum of appearance together with a notice of motion for an order to determine a point of law and to dismiss the action pursuant to Orders 14A and 33 of the Rules of the Supreme Court of England (White Book). The Appellant sought a determination by the court below as to whether or not the matter was properly before it in light of the pending interpleader proceedings under Cause No 2009/HPC/0735. After considering the motion and arguments advanced by the parties, the court below found that the conditions favourable to invoking Order 14A and Order 33 of the White Book were not present in the matter and dismissed the Appellant’s application. The Appellant appealed

Held
1. Interpleader proceedings are a mechanism employed by a disinterested stakeholder (the Sheriff of Zambia to be specific) to facilitate litigation of ownership of property seized by the Sheriff in execution of a judgment when an interested party lays a claim to such property. This is the only purpose of interpleader proceedings. They are restricted to only facilitating an interested party to prove his claim of ownership of the property seized in execution of a judgment. For this reason, the Respondent could not have competently launched the claim sought in this action under Cause No 2009/HPC/0735 as his locus standi in the latter cause was restricted to filing a notice of claim for the sole purpose of triggering interpleader proceedings.
2. There are certain requirements which must be satisfied before a matter can be disposed of on a point of law. One such requirement, according to Order 14A/1-2/2 of the White Book is the giving of notice of intention to defenda.
3. What constitutes a notice of intention to defend, in the context of the High Court rules, is the filing of a memorandum of appearance which is accompanied by a defence. It therefore, follows that the filing of a memorandum of appearance with a defence is a pre-requisite to launching an application under Order 14A of the White Book. Contrary to Order 11 rule 1 of the High Court rules, the Appellant did not file a memorandum of appearance and a defence before invoking Order 14A of the White Book.
4. The filing of a conditional memorandum of appearance without a defence is only applicable in circumstances where a defendant wishes to contest the validity of proceedings with a view to set aside the writ. This is governed by Order 11 rule 4 of the High Court rules. Other than what is envisaged in Order 11 rule 4, a conditional appearance can never be extended or over stretched to constitute a notice of intention to defend in the context of an application under Order 14A of the White Book which is intended to finally determine a matter without a full trial of the action.
5. The import of Order 33 rule 3 of the White Book is that a preliminary point of law can be raised at any stage of the proceedings, including the period before trial. Parties need not wait for setting down the matter for trial before an application to determine a preliminary
point of law can be raised. Order 33 rule 3 however, cannot be invoked independently or to the exclusion of the mandatory requirements of Order 14A of the White Book.
_______________________________________
a.Order 14A/2/3 of the White Book provides that:
The requirements for employing the procedure under this Order are the following:
a) The defendant must have given notice of intention to defend.
b) The question of law or construction is suitable for determination without a full trial of the action

Coram
Musonda, DCJ
Hamaundu, JS
Kajimanga, JS