Andrew Kumwenda v Kumwenda (Appeal 99 of 2007) [2008] ZMSC 40 (14 August 2008)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 99 OF 2007 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ANDREW KUMWENDA APPELLANT VS EUNICE MARY KUMWENDA RESPONDENT CORAM: Sakala, CJ., Silomba and Mushabati, JJS. On 21st May, 2008 and 14th August, 2008 For the Appellants: Mr M. P. Muyawala of Dzekedzeke and Company For the Respondents: Mr N. K. Mutuna of NKM and Associates RULING Mushabati, JS., delivered the Ruling of the Court. Cases referred to: 1. Trinity Engineering (PVt) Ltd Vs Zambia National Commercial Bank Lfdf1995/1997J Z. R. 166 2. Chibota Ltd and others Vs Meridian Biao Bank (Z)Ltd (Liquidation) [2003] Z. R. 76 Legislation referred to: Supreme Courts Rules, Cap. 25 - R.78 This is an application under Rule 78 of the Supreme Court Cap. 25, which is a slip rule. The application is at the instance of the Respondent. The Respondent is seeking an order to correct accidental errors and omissions in the judgment of this court delivered on 20th March, 2007. (cid:9) (cid:9) (cid:9) R2 It is contended as follows.: (i) At pages 8 to 8 this Honourable Court purports to distribute plots G.130 and 131 by ordering that the said properties were bequeathed to the appellant by me (Respondent) and as such they are his properties. On the said assumption At page 8 -9 this Honourable Court purports to distribute plots G 130 and 131 by ordering that the said properties were bequeathed to the Appellant by me and as such they are his properties. On the said assumption the Honourable Court ordered that the properties should be distributed to the Appellant. The errors here are firstly that these two properties G130 and 131 were not the subject of this appeal. Secondly, the properties were disposed of by the Appellant long before the High Court matter was determined. (ii) At page 14 line 20 this Honourable Court rules that property known as C17/25 which it is presumed is C17/025 forms part of the matrimonial property and must be distributed on a 50/50 basis by the parties as it was jointly owned. The error here is that this Honourable Court omitted to note that the said property is vested in my name with the child of the family Alice Ngulube having a beneficial interest upon my death. This is as is evidenced by Land Record Card at page 145 of the record of appeal. The said property can not therefore be subject to distribution as my intention when purchasing the property was that it should finally vest in the said Child Alice Ngulube. (iii) At page 14 lines 7, 8 and 9 of the judgment this Honourable Court makes a finding that house No. C17/025 John Laing like other houses was acquired or built by the combined efforts of the two parties R3 through their respective contributions though not properly ascertained. The error here is that the record of appeal clearly shows at pages 200 to 218 that I obtained long service bonuses, kilometer and subsistence allowances to construct the houses whereas at all material times the Appellant was unemployed. It can not therefore be said that the houses were built by the combined efforts of the parties through their respective contributions though not properly ascertained, it is easy to ascertain from the record of appeal that I contributed exclusively to the construction and acquisition of the properties and not so for the Appellant. (iv) (cid:9) Finally, the Honourable Court omitted by way of a slip, to rule on the preliminary issue raised by my Counsel one NIGEL KALONDE MUTUNA during the hearing regarding the offensive submissions by the Appellant. At pages 5 and 6 of the Appellant's heads of argument filed on 13th July 2005 paragraph d, the Appellant among other things alleges that my Counsel's conduct in these proceedings has been unprofessional. This was brought to the attention of this Honourable Court by my Counsel at the hearing of the appeal and this Honourable Court undertook to make a ruling on same in the judgment following an apology tendered by the Appellant. However, this Court omitted to make such ruling in its judgment. The respondent filed her heads of argument together with the record of appeal on which she entirely relied. The gist of her Heads of argument is that this Court made some errors and omissions in this case, firstly on the ground that Plots 130 and 131 were not in contention in the court below and so were not subject of the appeal that was before us. Reference to the said plots by this court therefore, amounted to extraneous consideration. R4 Secondly the court erred when it held that the property known as C17/025 was jointly owned by the appellant and Respondent and so entitled to 50/50 shares in it. The court erred because the said plot was owned by the Respondent with beneficial interest going to the child of the family Alice Ngulube on the death of the respondent. The court ought to have respected the Respondent's wish or intention of passing on the said property to her Child on her death, when deciding the sharing of the property in this case. The property has never been a matrimonial property or home. The third error was that this court found it as a fact that the properties in issue • were purchased or built through combined efforts of the appellant and the respondent when in fact the houses in issue were acquired by the respondent through her own resources. The lower court properly held that it was the respondent who was, at the material times, in formal employment whereas the appellant was not. This being the case, the appellant had no means or resources to build the said houses. Finally; it was argued that this court failed to make a ruling on the appellant's attack on the Respondent's advocate's professional behaviour. The appellant • alleged that he had not behaved properly in the handling of this case. The appellant also relied on his written heads of argument. Basically the argument is that there were no clerical errors or o missions in this case. The Respondent was a mere attempt to have the court reviews its on judgment, of which it has no powers. R5 We have considered the arguments by both parties. The issues raised in this motion were not of any clerical nature. Neither were there any omissions or grammatical errors. We agree with the learned counsel for the appellant that this motion does not fall under the slip Rule 78 of the Supreme Court Rules, Cap. 25. The respondent's attempt was intended to re-open the appeal thus frying to have a second bite at the cherry, so to say. • What we said in the cases of Trinity Engineering (PVT) Ltd Vs Zambia National Commercial Bank Ltd(') and Chibote Limited and 3 others Vs Meridian Biao Bank (Z) Ltd (In liquidation)(2) is true of this case. In the Trinity Engineering case we said: That the slip rule was meant for the Court to correct clerical mistakes or errors in a judgment arising from accidental slips or omissions. In the present case the applicant was effectively seeking the reviewing and setting aside of the previous judgment which was not permissible. Application dismissed. Likewise in the Chibofe Limited case we said: (1) An appeal determined by the Supreme Court will only be reopened where a party, through no fault of its own has been subjected 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. R6 In view of what we have said and the authorities we have referred to above we find no merit in this application as it is misconceived. We dismiss it with costs to the appellant. In default of agreement the costs shall be taxed. E. L. Sakala CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE