Investrust Bank PLC v Hearmes Mining and Trading Ltd and Ors (Appeal 137 of 2015) (28 October 2020) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA Appeal No. 137/2015 HOLDEN AT KABWE SCZ/8/194/2015 (Civil Jurisdiction) BETWEEN: INVESTRUST BANK PLC APPELLANT AND HEARMES MINING AND TRADING LIMITED 1st RESPONDENT ROSEMARY MULENGA 2nd RESPONDENT IAN NKAKA LOMBE RESPONDENT CHIBESA CHRISTINE LOMBE 4th RESPONDENT CHILESHE MORIA LOMBE 5TH RESPONDENT MWANSA NANCY LOMBE 6th RESPONDENT CHITI JASON LOMBE 7th RESPONDENT CHOMBA PAUL LOMBE 8th RESPONDENT Coram: Hamaundu, Malila and Chinyama JJS on 6th October, 2020 and 28th October, 2020. For the Appellant: Mrs. N. Simachela of Messrs Nchito and Nchito Advocates. For the 1st Respondent: N/A For the 2nd & 3rd Respondents: Mr. G. Kalandanya of Messrs GM Legal Practitioners For the 4ih to 8th Respondents: N/A J2 JUDGMENT Malila, JS delivered the judgment of the court. Cases referred to: 1. Finsbury Investment Ltd & Others v. Antonio Ventriglia and Another (2013) (2) ZR 412 2. Re v. Uddin (a Child) 3 All ER 550 3. Revision ofMulla and Others v. Jabi (Selected Judgement No. 1 of 2018) 4. Trinity Engineering (Pvt) Ltd v. Zambia National Commercial Bank Ltd (1995-1997) ZR 166 5. Attorney General, Development Bank of Zambia v. Gershom Moses Button Mumba (2006) ZR 77 6. BP Zambia Ltd v. Lishomwa and Others (Appeal No. 72 of2007) 7. Chibote Limited, Mazembe Tractor Company Limited and Others v. Meridien BIAO Bank (In liquidation) [Selected Judgment No. 11 of2003] 8. Godfrey Miyanda v. Attorney General (1985) ZR 243 9. Preston Banking Co. v. William Allsup & Sons (1895) 1 Ch D 143 10. Nyimba Investments Ltd. v. Nico Insurance Zambia (Appeal No. 130/2016) 11. Leonard Kanyanda v. Ital Terrazo Ltd (in receivership) [Appeal No. 125/2016] Legislations referred to; 1. Supreme Court Rules, Chapter 25 of the Laws of Zambia 2. Supreme Court Act, Chapter 25 of the Laws of Zambia 3. Rules of the Supreme Court (1999) (edition) White Book 4. Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) J3 1.0. Introduction 1.1. When we heard this motion on the 6th October 2020, we dismissed it with costs to the second and third respondents. 1.2. We undertook to give our reasons later. These are they. 2.0. Background facts and nature of the claim 2.1. The purpose of the motion before us was to “review judgment pursuant to rule 48 and 78 of the Supreme Court Rules Chapter 25 of the Laws of Zambia.” The Supreme Court passed the judgment in question on 12th June, 2018. 2.2. The affidavit in support of the motion was deposed to by Chrispin Isukanji Daka, the Head of Credit in the applicant bank. 2.3. He avers that the applicant brought the motion upon advice from its counsel that in the judgment given by the Supreme Court on 12th June 2018, the court did not adjudicate on all aspects of the suit as presented to it. J4 2.4. In particular, the court was informed, through paragraphs 12 to 15 of the affidavit in support of the motion, that: 2.4.1. this motion is now brought before this Honourable Court to review the said judgment for its failure to consider S/D ‘96* of S/D ‘A’ of Farm 841, Kitwe in the enforcement of security claim. 2.4.2. that the only properties considered were the three held by the 2nd Respondent as administratrix of her late husband’s estate. 2.4.3. that the record of appeal shows, at page 164 that the Appellant also sought enforcement for the security S/D ‘96* of S/D ‘A’ of Farm 841, Kitwe as per Appellant’s Amended Originating Summons filed on the 25th of June, 2013. 2.5. At the hearing of the motion, Mrs. Simachela, learned counsel for the applicant, relied on the affidavit in support and the skeleton arguments which had been filed. 2.6. Asked whether the motion did not in fact violate the timeline prescribed under rule 48 of the Supreme Court Rules as amended, on which the motion was premised, Mrs. Simachela submitted that the motion was principally taken out under rule 78 of the Rules of the Supreme Court. J5 3.0. Arguments in support of the motion 3.1. In the heads of argument filed in support of the motion, the applicant’s grievance was focused on the part of our judgment [at J15] where we stated that: In the circumstances, we are satisfied that, on the evidence presented before the court below, the appellant proved its claims.... Therefore, success on the monetary judgment was, essentially, success of the action. In this case the appellant ought to have succeeded on its monetary judgment in the court below first as it has succeeded here. This means this appeal has succeeded. 3.2. The gravamen of the applicant’s grief is that notwithstanding the holding of the court in its judgment as captured in the preceding paragraph there was no pronouncement made in respect of S/D ‘96’ of S/D ‘A’ of Farm 841, Kitwe which property did not form part of the estate of the deceased, and the second respondent was the legal owner of it and had pledged it as one of the securities by way of a third-party mortgage for the overdraft facility granted to the first respondent. J6 3.3. According to the applicant, as the court did not in its judgment pronounce itself on the validity of the third-party mortgage over S/D ‘96’ of S/D ‘A’ of Farm 841, Kitwe it was now necessary for the court to correct itself. It was contended that this court had given guidance in the case of Finsbury Investment Ltd & Others v. Antonio Ventriglia and Another^ that: we have taken time to look at authorities relating to the jurisdiction of an appellate court to review, vary or rescind its final decision. In our view, it is beyond contest that, as a general rule, this court’s decisions are final. However, this court has power to reopen and revisit its own decision in exceptional circumstances... where the interests of justice demand that it be done. 3.4. The learned counsel also quoted from the English case of Re v. Uddin (a Child)(2) where the court summarized the circumstances in which an appellate court can reopen its final decision as follows: The Court of Appeal or the High Court will not reopen a final determination of any appeal unless - J7 (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy. 3.5. It was counsel’s submission that the case before the court constitutes one of exceptional circumstances for three reasons: first that not all matters brought before the court were adjudicated upon; second in light of the finding of the court that the first to the third respondents are rightfully indebted to the applicant for the overdraft facilities given to the first respondent, it is in the interest of justice for the court to pronounce itself on the enforceability of the security over S/D ‘96’ of S/D ‘A’ of Farm 841 Kitwe; and thirdly, that if the court pronounced itself on the enforceability of the security the appellant will be enable to recover a portion of the judgment sum owed to it. 3.6. Counsel prayed that the motion be allowed. J8 4.0. The respondent’s factual opposition to the motion 4.1. The second and third respondents opposed the motion, and on their behalf, an affidavit in opposition sworn by the second respondent, Rosemary Mulenga Lombe, was filed. 4.2. She averred that her counsel had informed her, and she believed him, that the judgment of this court, which the applicant sought to have reviewed, was final and could not be reviewed in the manner suggested by the appellant; that this court has no power to review its own judgment. 4.3. The deponent further stated in her affidavit that an application for review, whenever it was warranted, must be made within a reasonable and/or prescribed time. In the present case, the applicant made its application more than two months after delivery of the judgment. 4.4. It was further averred that the motion for review is irregular for not stating the grounds upon which it is premised. 4.5. The deponent went to great lengths explaining the identity of the property mortgaged, the ownership of the same and who J9 executed the security documentation. We do not consider all these factual or historic details to be of relevance to the issue for determination. 5.0. The argument in opposition to the motion 5.1. In the skeleton arguments filed in opposition to the motion, it was contended that both rules 48 and 78 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia, relied upon by the applicant, were wrong rules to invoke. Quoting each of the rules separately, counsel contended that the applicant globally quoted rule 48 without specifying the sub-rule relied upon. 5.2. After arguing that most of the provisions of rule 48 were inapplicable as they related to applications before a single judge, counsel zeroed in on rule 48(5) which relates to applications to the full court, but submitted that this provision too, fell short of the requirement that a motion should state the grounds upon which it is made. The present motion refers, for the grounds of the application, to the affidavit in support, contrary to the law. J10 5.3. Counsel also contended that as is clear from the contents of paragraph 12 of the affidavit in support, the motion is for review of the judgment granted that the court allegedly failed to consider S/D ‘96’ of Farm 841, Kitwe in the enforcement of the security when in fact all matters relating to enforcement of security were dealt with in the judgment. 5.4. It was further submitted that a matter that has already been decided cannot be reargued as the applicant proposes to do as such a matter is resfudicata. Counsel referred to the case of Revision of Mulla and Others v. Jabi<31. 5.5. Counsel also questioned the capacity in which the second respondent is being pursued in the enforcement of the securities on the purported mortgage. The appellant, it was submitted, failed to disclose this. 5.6. The learned counsel made numerous other arguments and cited case authorities which, in the view we take, are totally unnecessary. Jll 6.0. Issue for determination 6.1. The real question for determination in this motion is whether, given what the applicant requires of us to do, as we have set it out in the opening paragraphs, the method by which this court has been moved is appropriate. 6.2. Put differently, is this an appropriate application to commence under rules 48 and 78 of the rules of the Supreme Court? 6.3. A related question is whether there has been compliance with the timelines set forth in the rules. 7.0. Our analysis and decision 7.1. We have stated already that the applicant has taken out this motion the purpose of which is for us to review our judgment of 12th June, 2018. 7.2. Rule 48, as correctly observed by counsel for the respondent, deals with civil applications. Sub-rules (1) to (4) deal with such applications to a single judge of this court while sub-rule (6) relates to drawing up of orders in such applications. Sub­ rule (7) prescribes the form which a notice of motion should J12 take, while the form of a summons is covered under sub-rule (8). Clearly then, the only relevant sub-rule of rule 48 is sub-rule (5) which reads as follows: An application involving the decision of an appeal shall be made to the court in the like manner as aforesaid, but the proceedings shall be filed in quintuplicate and the application shall be heard in court unless the Chief Justice or presiding judge shall otherwise direct. Quite evidently, rule 48(5) is procedural. It prescribes the methodology of moving the court; what needs to be done and when, rather than the substance upon which the court is to be moved. Rule 78 on the other hand provides as follows: Clerical errors by the court or a judge thereof in documents or process, or in any judgment, or errors therein arising from any accidental slip or omission, may at any time be corrected by the court or a judge thereof. Our understanding of these two provisions, that is to say, rule 48(5) and rule 78 is that the substantive power to undertake correction of clerical errors or accidental slips is donated to the court by rule 78 while rule 48(5) merely provides the pathway. J13 7.7. Rule 78 of the rules of the Supreme Court made under the Supreme Court Act, Chapter 25 of the Laws of Zambia, is similar to the provisions of Order 20 rule 11 of the Rules of the Supreme Court (1999) (edition) White Book, which provides that: Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by this court on motion or summons without an appeal. 7.8. An error in a judgment may be corrected when it is necessary to understand the express intention of the court. Thus, in Trinity Engineering (Pvt) Ltd v. Zambia National Commercial Bank Ltd<4> we stated that correction was necessary to give proper expression to the court’s ‘manifest intention.’ 7.9. As we stated in Attorney General, Development Bank of Zambia v. Gershom Moses Button Mumbai, the slip rule is intended to facilitate correction of clerical errors or mistakes in a judgment arising accidentally and is not intended to be used as a vehicle for a dissatisfied party to have a matter and the judgment reviewed. J14 7.10. Explaining the purpose of rule 78 in BP Zambia Ltd v. Lishomwa and Others^ we observed as follows: In our view, the respondents are simply dissatisfied with our judgment and would have us vary our judgment so as to bring about a result more acceptable and favourable to them. They simply want to have another bite at the cherry. This court rejected such an application in Chibote Limited, Mazembe Tractor Company Limited and Others v. Meridien BIAO Bank (In liquidation^7) case where we held that: 1. An appeal determined by the Supreme Court will only be reopened where a party, through no fault of its own, has been subject to an unfair procedure and will not be varied or rescinded merely because a decision is subsequently thought to be wrong. 2. There was no error, omission or slip in the judgment. The applicant was simply dissatisfied with the judgment and sought the Supreme Court to vary the judgment so as to bring about a result more acceptable. 7.11. In the case of Godfrey Miyanda v. Attorney General^) we observed that: There is no rule which allows the Supreme Court generally to amend or alter its final judgment; as all the issues raised in the application were canvassed and given due consideration in the judgment complained of, there was nothing accidental in the judgment. J15 7.12. We have already stated that before us the appeal is that we review our judgment so as to make pronouncements on a specific security. This situation is not entirely different from that which confronted an English court in the Preston Banking Co. v. William Allsup & Sons!9) where Lord Halsbury LC elaborated the position as follows: If by mistake or otherwise an order be drawn up which does not express the intention of the court, the court must always have jurisdiction to correct it. But this is an application to the Vice Chancellor in effect to rehear an order which he intended to make but which it is said he ought to have made. 7.13. We deplored an effort by a movant of a motion under the slip rule in Nyirnba Investments Ltd. v. Nico Insurance Zambia!10) to have us review our judgment. We there stated as follows: From the wording of the motion and the grounds for bringing it, it is manifestly clear that the validity of the judgment of this court is being challenged. The purpose of the applicant’s application before us is clear. It is an appeal or request for a review cloaked in the guise of a motion under the slip rule. This court has consistently refused to be dragged into this pitfall. J16 7.14. We can do no better than adopt those words in the present motion. 7.15. Yet, we also take congnisance of the fact that in the arguments made on its behalf, the applicant is effectively urging us to reopen the appeal and reconsider the arguments made or not addressed. We have been referred to case authorities that support that line of argument, but certainly not the arguments for correction of a judgment under the slip rule. 7.16. Our view is that this is not the kind of application that should be brought under rule 78 of the Supreme Court Rules. 7.17. More grievously perhaps is that the motion was taken out under rule 48 which requires that a decision in respect of which a motion is taken under sub-rule (5) should have been made not more than fourteen days previous to the motion. 7.18. The Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) amended Rule 48(1) of the Supreme Court Rules so as to insert the fourteen days limit. It now provides as follows: J17 (1) Applications to a single judge shall be made by motion or summons, within fourteen days of the decision complained of which shall state the grounds of the application, and shall if necessary be supported by affidavits... 7.19. Rule 48(5) under which the present application was taken states that: An application involving the decision of an appeal shall be made to the court in like manner as aforesaid but the proceedings shall be filed in quadruplicate and the application shall be heard in court unless.... 7.20. In Leonard Kanyanda v. Ital Terrazo Ltd (in receivership^1 V we held that the use of the phrase “in like manner” in sub-rule (4) and sub-rule (5) means that any application under these sub­ rules must, like those brought under sub-rule 1, be made within fourteen days of the decision complained of. 7.21. As has been demonstrated by the respondents in the present case, the judgment which prompted the motion was made in June, 2018 way over the fourteen days required for the launch of any motion raising issue with it. The motion comes way too late in time. J18 7.22. For the reasons that we have articulated, the motioned was bound to fail. It is for these reasons that we dismissed it with costs to the second and third respondents. E. M, namaunuu SUPREME COURT JUDGE J. ChiriVama JVTFMalila SUPREME COURT JUDGE SUPREME COURT JUDGE