HH 335-18 LAMB DISTRIBUTORS (PVT) LTD versus ALLIED TIMBERS (PVT LIMITED

LAMB DISTRIBUTORS (PVT) LTD

versus

ALLIED TIMBERS (PVT LIMITED

 

 

 

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 14 May 2018 & 20 June 2018

 

 

Opposed Matter

 

 

S. Mubvuma, for the applicant

R.E. Nyamayemombe, for the respondent

 

 

            MUZOFA J: On 14 May 2018, I delivered an ex tempore judgment dismissing the application by the applicant.

            On 21 May 2018 the applicant’s legal practitioners requested for reasons, these are they.

            This matter came as an opposed application for correction of an order in terms of order 49 r 449 of the rules of this court. The order sought to be corrected ordered that:

“The defendant shall pay the plaintiff the sum of $52 982 together with interest thereon at the rate of 5% per annum from the date of this judgment to the date of payment, plus a third (1/3) of the plaintiff’s costs of suit.”

 

Before the matter was argued on the merits, a preliminary point was raised for the

respondent.

It is trite that a preliminary point, if properly taken in an application or action, it is

capable of disposing of a matter without the need for the court to proceed into the merits of the case.

            Mr Nyamayemombe for the respondent submitted that, the judgment between the parties was issued by this court on 25 January 2017 under HH 42/17. The respondent noted an appeal against the judgment under SC 75/17. The appeal is still pending before the Supreme Court.

            The appeal suspended the judgment by this court by operation of law. Also that this court had become functus officio and may not make further orders with regard to the matter. Further that the application infringes the respondent’s constitutionally enshrined right of appeal.

 

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