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Supreme Court of Zambia - 2013 November

11 judgments

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11 judgments


November 2013
Andrew Mulimba and Anor v Attorney General (APPEAL NO. 117/2005) [2013] ZMSC 72 (27 November 2013) State must pay pre‑judgment interest under court rules; general damages permissible for breach of equitable right of first refusal, assessed as market value less contract price. State proceedings — pre‑judgment interest — interaction of Section 20 State Proceedings Act and Judgment Act/High Court Rules; Interpretation of orders awarding "plus interest"; Equity — breach of right of first refusal — remedy by damages where specific performance impracticable; Distinction between general and special damages; Measure of damages: market value at contractual completion less contract price.	27 November 2013
Lafarge Cement Zambia Limited PLC v Sinkamba (Citizens for a Better Environment) (Appeal 169 of 2009) [2013] ZMSC 31 (26 November 2013) Default judgment entered prematurely was irregular; respondent lacked locus standi to claim EPF funds, appeal allowed with costs. Civil procedure — default judgment — requirement to allow full 21‑day period for appearance — irregularity if judgment entered prematurely; locus standi — private person cannot recover or demand deposit into government Environmental Protection Fund (EPF); scrutiny of writ endorsements — claims must have legal basis and not be speculative; review and setting aside — once judgment is irregular necessity to exhibit defence falls away	26 November 2013
Societe Nationale des Chemis de Pur du Congo v Kakonde (Appeal 183 of 2008) [2013] ZMSC 19 (26 November 2013) A High Court claim for gratuity was dismissed as res judicata after prior Industrial Relations Court mediation on terminal dues. Res judicata — terminal dues; mediation settlement — effect of prior Industrial Relations Court proceedings; piecemeal litigation; opportunity to litigate all matters arising from same cause of action; finality of litigation	26 November 2013
ZESCO Ltd v Maphenduka (Appeal 40 of 2008) [2013] ZMSC 46 (19 November 2013) Appeal dismissed: dishonesty unproven—lack of diligence insufficient; compensation and specified interest awarded to the respondent. Employment law — unfair dismissal; disciplinary findings — dishonesty distinguished from lack of diligence; appellate admission of fresh evidence; standard of appellate review of factual findings; interest on awards under Law Reform Act.	19 November 2013
Hybrid Pultry Farm (Z) Limited v Kalwa Food Products Limited (APPEAL NO. 102/2008) [2013] ZMSC 71 (14 November 2013) Court upheld trial judge’s discretion on costs, refused correction of alleged clerical error, and dismissed the appeal. Costs — judicial discretion under Order 40 Rule 6; Instalment orders — merit and mootness where judgment debt paid; Correction of clerical errors — Order 20 Rule 11 inapplicable absent accidental slip; Leave to appeal out of time — procedural relief and subsequent grant by single judge.	14 November 2013
Zachs Apuleni v Konkola Copper Mines Plc (APPEAL NO. 89/2008) [2013] ZMSC 69 (14 November 2013) Dismissal upheld: the applicant’s unauthorised circulation of confidential medical images justified dismissal despite procedural irregularity. Employment law — wrongful dismissal — unauthorised circulation of confidential medical images — breach of e-mail and acceptable-use policies — procedural irregularity in charging employee does not vitiate dismissal where misconduct proven.	14 November 2013
Zambia Railways Ltd v Mubanga (Appeal 189 of 2007) [2013] ZMSC 45 (14 November 2013) A Registrar cannot assess damages without a court directive; such an assessment is a nullity. Industrial Relations Court — Registrar’s jurisdiction — Assessment of damages — Rules 76 & 77 — Requirement of assignment by Chairman/Deputy Chairman — Assessment without directive ultra vires and a nullity — Jurisdictional defects exceptional and cognizable at appeal.	14 November 2013
Amos John Mulemena v NIEC Agencies Ltd and Anor (SCZ 15 of 2013) [2013] ZMSC 40 (13 November 2013) A successor that takes over and sells a judgment debtor’s assets may be joined post-judgment to enable enforcement. Industrial Relations Court — functus officio after judgment — joinder of successor post-judgment — Rule 55 (ends of justice/abuse of process) — enforcement of judgment against transferee of assets.	13 November 2013
Finsbury v Ventriglia (Appeal 11 of 2009) [2013] ZMSC 17 (13 November 2013) A non‑party adversely affected by an interlocutory injunction may apply to the granting court to have it discharged after material change. Civil procedure — interlocutory injunction — status of ex‑parte order; non‑party locus standi to apply to dissolve injunction; appellate court's inherent jurisdiction to reopen/discharge interlocutory orders and admit fresh evidence where exceptional circumstances and real injustice exist; material change of circumstances (lifting of receivership, deportation) as ground for discharge	13 November 2013
Attorney General v Seong San Company (Appeal 182 of 2010) [2013] ZMSC 16 (12 November 2013) The appellant became a constructive trustee by releasing seized funds, and the administratrix is also liable. Constructive trust — Tracing of seized funds — Disposal of exhibits — Prohibition and Prevention of Money Laundering Act s18(4) — Equity vs limitation — Privity of contract exceptions — Costs on partial success	12 November 2013
Director of Public Prosecutions v Musonda (Appeal 159 of 2013) [2013] ZMSC 35 (4 November 2013) Local Government Act disciplinary steps do not excuse prosecution, but inadequate investigation defeated the theft conviction. Criminal procedure v. administrative/disciplinary procedure; Local Government Act does not bar prosecution of council officers; definition of "person employed in the public service" under Penal Code; burden of proof and investigative dereliction; insufficiency of evidence leading to acquittal	4 November 2013