The appellant was employed by the first respondent as its Financial Manager. The first respondent intended to retrench the appellant together with other employees, and retrenchment negotiations took place but did not result in agreement. During negotiations, the first respondent discovered alleged misconduct by the appellant, specifically that he had converted large sums of money belonging to the first respondent to his own use. The first respondent suspended the appellant and sought approval from the Ministry of Public Service Labour and Social Welfare for his dismissal. Before approval was granted, the appellant filed an urgent application in the High Court seeking an order directing the attachment of the first respondent's funds held by the second, third and fourth respondents (banks), before any judgment was granted in his favour, and payment of the attached funds to him. The High Court dismissed the application with costs, and the appellant appealed to the Supreme Court. The appeal was struck off the roll with consent of both counsel, but there was disagreement on who should bear the wasted costs.
It was ordered that the wasted costs shall be borne by the appellant.
An applicant seeking attachment of assets as security must: (1) disclose the existence of litigation or a claim against the respondent - attachment cannot be granted as security for an undisclosed claim not yet instituted as there is no legal basis for such attachment; (2) disclose the total amount of funds sought to be attached and provide reasons for the quantum claimed, rather than seeking attachment of all funds without specification or justification; (3) demonstrate a prima facie right to the attachment by addressing the merits of the underlying dispute, including dealing with any defences or allegations that would affect the viability of the claim. Where an appeal is struck off the roll by consent but parties disagree on costs, the court should determine costs allocation by assessing whether the appeal had merit - if it had merit, costs should be borne by the respondent; if devoid of merit, by the appellant.
The Court observed that in employment disputes involving allegations of misconduct (particularly financial misconduct such as conversion of employer funds), an employee challenging suspension or dismissal must address the misconduct allegations in their founding papers, as the success of any claim against the employer will depend upon whether the employee has a good defence to those allegations. The Court also noted that unsubstantiated allegations (such as the claim that the employer was disinvesting and liquidating assets) will not assist an applicant in establishing urgency or the need for attachment.
This case establishes important principles regarding applications for attachment of assets as security before judgment is obtained. It clarifies the requirements that must be met for such applications, including the need to disclose the existence of underlying litigation, to specify the amount sought to be attached with justification, and to demonstrate a prima facie right to the attachment by addressing the merits of the underlying claim. The case also provides guidance on the approach courts should take in determining costs allocation where an appeal is struck off the roll by consent - namely, by assessing whether the appeal had merit.