Basf South Africa (Proprietary) Ltd v Agrifocus Limited (2018/HPC/0419) [2020] ZMHC 437 (6 October 2020)

\ IN THE HIGH COURT FOR ZAMBIA AT THE <COMMERCIAL REGXST~Yltil•'ii' 98?H HOLDEN AT LUSAKA (Civil Jurisdiction) J 0 u c BETWEEN: 2018/HPC/0419 BASF SOUTH AFRICA (PROJ?JlUETARY) LTD PLAINTIFF AND AGRIFOCUS LIMITED DEFENDANT CORAM: Hon. Lady Justice Dr. W. S. Mwenda in Chambers at Lusaka the 6 th day of October, 2020 For the Plaintiff For the Defendant: Mr. L. Chanda of P. H. Yangailo and Company Mr. R. Mwala of AMW and Company Legal Practitioners RULING Cases referred to: I) Abb Oy v. Luanshya Copper Mines Plc., SCZ Judgment No.7 of 2015 (Unreported). 2) Limpic v. Mawere and Others [2014] 2 Z. R. 303. ' ~· 3) Godfrey Miyanda v. Attorney General (1985) Z . R. 243. 4) Trinity Engineering (Pvt) Limited v. Zambia National Commercial Bank Limited , S. C. Z. Judgment No. 7 of 1996 (Unreported). 5) Bright v. Seller (1904) Z. R. 1 K. B. 6. Legisiation referred to: 1) Order 2 0, rule 11 of the Rules of the Supreme Court of England and ¾'ales, 1999 Edition (the White Book). 2) Practice Note 20/ 8/2 of Order 20 of the White Book. 3) Practice Note 20/ 8152 of Order 20 of the White Book. R2 This is the Defendant's application for interpretation and/ or amendment of judgment. The application was made pursuant to Order 20, rule 11 of the Supreme Court Rules, 1999 Edition ("the White Book") and is by way of Summons and supporting Affidavit ("the Affidavit in Support"). The Summons, Affidavit in Support and Skeleton Arguments were all filed on 8 th May, 2020. The Affidavit in Support was sworn by one Kebby Wishimanga, Counsel seized with the conduct of this matter on behalf of the • Defendant, in which capacity he swore the Affidavit. Mr. Wishimanga averred that by a Ruling dated the 28th day of April, 2020 ("the Ruling"), this Court granted the Plaintiffs application to amend pleadings. That, at page R15 of the Ruling this Court held that: "Finally, with regard to the Defendant's argument that allowing the Plaintiff to amend its pleadings will necessitate the preparation of a new d efence by the Defendant and thereby incurring new costs, it is my view that the concern can be addressed by an order for costs in favour of the Defendant. " Mr. Wishimanga further asserted that during oral arguments in I court, it was the Defendant's prayer that the costs occasioned to the Defendant from the commencement of the action be granted as the amendment would necessitate a totally new action as per P:r.a,ctice Note 20/8/2 of Order 20 of the Rules of the Supreme Court of England and Wales, 1999. Further, that exhibit 'LZ2" to the Affidavit in Opposition to Affidavit in Support of Summons for Leave to Amend Writ of Summons and Statement of Claim, in fact even R3 exhibited the costs incurred by the Defendant 1n defending the action until the date of the application. It was Mr. Wishimanga's understanding that in view of the above, the costs order referred to by the Court at page R15 related to the costs of the entire action. That, however, at the same page Rl5 of the Ruling, this Court awarded the Defendant costs of the application, which was echoed at page R 16 of the Ruling. That, consequently, it was his belief that the intention of the Court was to • grant the costs of the action in accordance with Practice Note 20/8/2 of Order 20 of the White Book and not costs of the application. He averred further, that his understanding was communicated to the Defendant and the Plaintiffs advocates and as proof of this averment, he produced as exhibit "KWl" a copy of the letter addressed to the Plaintiffs advocates. It was Mr. Wishimanga's further averment that he believed that justice would b e served if the Court interpreted its Ruling as to costs and granted a consequent amendment thereof. Skeleton Arguments to buttress the application were filed on behalf of the Defendant. It was submitted that generally the court will become functus officio upon delivery of a judgment in a given cause, thereby automatically bringing the jurisdiction of the court to an end. However, provisions and precedents do exist for situations where the same court may be called upon to correct or clarify the contents of a judgment. The purpose of this power is in no way a means to change the outcome of the matter, its sole purpose being to give effect to the meaning and intention of the •• .. R4 • court in passing judgment. It was further submitted that the authority the court has to exercise its power in such a manner is referred to as the "Slip Rule", which is provided for by Order 20, rule 11 of the White Book. The Order reads as follows : "Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal." It was submitted that what will immediately catch the Court's attention is that the Order refers to clerical mistakes or some form of slip or omission. It was contended that the true intention of the court in awarding costs to the Defendant was for the costs of the action and not just the application. That, this is strengthened by the fact that the Court made reference to Practice Note 20 / 8 / 2 under Order 20 of the White Book which provides that after an amendment , all previous proceedings are forgotten. Further, that this is buttressed by the wording of Practice Note 20/8/52 which state s as follows : "The usual penalty imposed as a term for giving leave to amend is that the party seeking the amendment should pay in any event all the costs incurred and thrown away by the amendment and the costs of any consequent amendment. This is what is meant by the "Costs phrase "on the usual terms as to costs", see 0 .62, r.3 (6). thrown away". If any wider or different order as to costs is desired, the Court should be asked to make a special order as to costs". It was submitted that the costs of the action should have followed naturally from the grant of amendment as provided above. Further, and in any case, the Court was in fact even asked to make a special order of costs of the action consequent on the amendment • RS I , .. ,: . I and the Defendant exhibited all the fee notes showing the amounts expended by the Defendant and for which the Plaintiff ought to have been condemned in costs. Further, that Practice Note 20/11/1 of Order 20, goes on to provide as follows: "This rule therefore applies only in cases where there is a clerical mistake in a judgment or order or an error arising from an accidental slip or omission. Apart from the rule, the Court has an inherent power to vary its own orders so as to carry out its meaning and to make its meaning plain. " In further support of the Defendant's application, it was submitted that this application is solely premised on moving this Court to make its meaning plain and to make its intention clear as guided by the law. That, in this regard, the Supreme Court in the case of Abb Oy v. Luanshya Copper Mines Plc. 1, took note of Practice Note 20 / 11 / 1 above by stating that the court has an inherent power to vary its own orders so as to carry out its meaning and to make its meaning plain. The Court went further to caution that the error or omission must be an error in expressing the manifest intention of the court. The Defendant iterated that the application has been necessitated by the Defendant's quest for clarity which may only be helped by a better expression of this Court's intent as envisaged in its ruling. That, in the case of Limpic v. Mawere and Others2, the Supreme Court noted that the key element that justifies the variation or correction of a judgment or order is that it must be in the interest of justice and not to satisfy a dissatisfied party. It was submitted that it is in the interest of justice that the application be granted and that the manifest intention of the Court R6 be made very clear based on the authorities cited. That, for the reasons aforementioned, the Defendant prays and urges the Court to indulge the parties herein for the sake of guiding on what the true intention of the Court was as envisaged by the Ruling in this cause and where necessary, to amend the Ruling in order for it to reflect the same. The Defendant also prayed for costs. The application was opposed and to this effect, the Plaintiff filed an Affidavit in Opposition to Affidavit in Support of Summons • for Interpretation and/ or Amendment of Judgment ("the Affidavit in Opposition") sworn by one Loiwe Shawa, who is employed by BASF Zambia Limited as Managing Director and Business Development Manager Southern Africa. It was his evidence that he had read what purported to be an Affidavit in Support of Summons for Interpretation and/ or Amendment of Judgment deposed to by Kebby Wishimanga and his response inter alia, was that the averments in paragraph 7 of the Affidavit in Support regarding the Defendant's prayer during oral arguments in court to the effect that the Defendant be granted costs from commencement of the action, is a legal argument and should not be contained in an affidavit. Further, that the Defendant has chosen to deliberately misinterpret the Ruling of the Court, which is clear and spelled out in clear and unambiguous terms. It was further averred 1n opposition, that this Court clearly pronounced itself as to what costs were awarded to the Defendant and to make an application for an interpretation and/ or amendment is unnecessary and merely meant to derail this matter R7 and more importantly, this Court. Further, that the deponent was advised by the Plaintiffs advocates and which advice he verily believed to be true and correct, that if the Defendant is /was not satisfied with the costs awarded, the only remedy it has is to appeal the decision of this Court to the Court of Appeal. With regard to the averments in paragraph 11 of the Affidavit m Support, wherein the deponent expressed the belief that the intention of the Court was to grant the costs of the action and not • the costs of the application, the deponent stated that he was advised by the Plaintiffs advocates and verily believed the same to be true, that the said paragraph contained a legal argument and should not be contained in an affidavit. It was admitted that the Defendant through its advocates on record had communicated its understanding of the Court's Ruling and the Plaintiff did not respond to the same as evidently the Defendant has chosen to misconstrue this Court's Ruling in relation to costs. Further, that contrary to the Defendant's averment in paragraph 13 of the Affidavit in Support, justice has already be served in this matter as the Defendant has been awarded costs and the same is clear suffice to state that the Defendant is not satisfied that the costs awarded by this Court in its discretion are only relating to the Plaintiffs application. That, therefore, the Defendant's application is totally misconceived, unnecessary and derailing this matter and should be dismissed with the contempt it deserves. The Plaintiff filed Skeleton Arguments and List of Authorities in Opposition to Summons for Interpretation and/ or Amendment of • R8 • Judgment on 24th June, 2020 wherein the Plaintiff gave the brief facts of the application before Court, namely, that on 28th February, 2020 the Plaintiff made an application to amend Writ of Summons and Statement of Claim; which application was duly granted by this Court in its Ruling of 28th April, 2020. It was submitted that in its Ruling alluded to above, this Court clearly stated that: "Costs of and incidental to this application are awarded to the Defendant." That, evidently the Defendant was not satisfied with this Court's decision relating to the quantum of costs awarded, thus necessitating this application by the Defendant. It was submitted that Practice Note 20 / 11 / 1 of Order 20 of the White Book clearly stipulates that the slip rule is applicable only in cases where there is a clerical mistake or error arising from an accidental slip, the idea being to make the meaning clear. It was contended that a perusal of the Ruling of 28th April, 2020 as regards costs awarded to the Defendant is clear and demonstrates the intention of the Court which intention was plainly communicated to the parties; it does 4' not contain any clerical mistakes and/or error to be corrected by this Court as the Court evidently took into account all the issues that were raised by the parties in their supporting affidavits on record and oral submissions in chambers; therefore, there is no clerical mistake or error to correct. It was submitted further, that the core of this application is that the Defendant is dissatisfied with this Court's order relating to costs and instead of appealing against the decision in as far as ., e R9 i ., costs awarded are concerned, the Defendant is trying to mislead this Court by invoking the provisions of Order 20, rule 11 of the White Book, which in the Plaintiffs view, is not applicable. It was contended that even assuming that there was a clerical mistake by this Court, which the Plaintiff insists there was not, the Defendant in its Summons and Skeleton Arguments in Support has clearly asked this Court to 'interpret and/ or amend the judgment'; which according to the Plain tiff, is more than asking this Court to merely correct a clerical mistake but in essence, is asking the Court to substitute its decision with a more favourable order as regards costs awarded to the Defendant. Further, that Order 20, rule 11 cannot be used to "interpret and/ or amend" as interpreting and amending goes far and beyond merely correcting clerical mistakes which is what Order 20, rule 11 is intended for. That, the Defendant clearly wants this Court to amend its decision under the guise of applying the slip rule as envisaged in Order 20, rule 11, which is not permissible at law. To augment the Plaintiffs submission it was submitted that in the case of Godfrey Miyanda v. Attorney General3, the Supreme Court stated 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 there was nothing accidental in that judgment complained of, judgment. " That, furthermore, in Trinity Engineering (Pvt) Limited v. Zambia National Commercial Banlc Limited4, the Supreme Court held, inter alia, that: RlO "The slip rule was meant for the Court to correct clerical mistakes or errors in 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 is not permissible. " (Underlining by the Plaintiff) It was submitted that clearly there are no clerical mistakes or errors to be corrected in this Court's Ruling of 28th April, 2020 as the ruling is clear and stated in plain and unambiguous terms. That, the fact that the Defendant is not pleased with the quantum of costs awarded does not give it the power to invoke the provisions of Order 20, rule 11. Further, that in any event, costs are granted at the Court's discretion and if the Defendant is not satisfied with the exercise of that discretion, it has recourse to the Court of Appeal to appeal against what it considers improper. It was further submitted that the Defendant's application is, strictly speaking, one bordering on this Court's application of the law as far as costs are concerned, which this Court cannot delve into as it has already pronounced itself, and whether legally correct or not, it is not within the preserve of this Court to interfere with. The Defendant cited the case of Bright v. Seller6, where the House of Lords reportedly stated inter alia: "The Court cannot correct its own mistake in law or otherwise even though apparent on the face of the order. " It was submitted in conclusion that it is the Plaintiffs humble submission that this is not a suitable case for this Court to invoke the slip rule because it is not applicable and the reasons advanced by the Defendant are not sufficient. That, if the Defendant is R11 dissatisfied with the award of costs it was granted by this Court it can challenge the same on appeal and not before this Court. That, the Plaintiff prays that the Defendant's application should be dismissed with costs. There was no oral hearing of this application as the parties had agreed that the Court renders its ruling based on the documents filed for the said application. I have considered the application before me together with the - Affidavit in Support and Skeleton Arguments in Support. I have also considered the Affidavit in Opposition and Skeleton arguments in Opposition. The application before this Court is for interpretation and amendment of judgment. The said application was made pursuant to Order 20, rule 11 of the Supreme Court Rules, 1999 Edition ("the White Book"). Order 20, rule 11 of the White Book provides as follows: "Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal." The issue for determination by this Court in this application is, in my view, whether or not there is a clerical mistake or an error arising from an accidental slip or omission in the Ruling of 28th April, 2020 with regard to costs which can be corrected by the Court. It has been submitted on behalf of the Defendant that this application is solely premised on moving this Court to make its meaning plain and to make its intention clear as guided by the law. In this regard, the Supreme Court in Abb Oy v. Luanshya Copper R12 Mines Plc. (supra) stated that the Court has an inherent power to vary its own orders so as to carry out its meaning and to make its meaning plain. The Court went further to caution that the error or omission must be an error in expressing the manifest intention of the court. The Defendant reiterated that the application has been necessitated by its quest for clarity which may only be helped by a better expression of this Court's intent as envisaged in its Ruling. That, in the case of Limpic v. Mawere and Others (supra), the Supreme Court noted that the key element that justifies the variation or correction of a judgment or order is that it must be in the interest of justice and not to satisfy a dissatisfied party. It was submitted that it is in the interest of justice that the application be granted and that the manifest intention of the Court be made very clear based on the authorities cited. The Plain tiff, on the other hand, has opposed the application on the ground that there are no clerical mistakes or errors to be corrected in this Court's Ruling of 28th April, 2020 as the ruling is clear and stated in plain and unambiguous terms. It has contended that it is clear that the Defendant was not happy with the ruling of this Court with regards to costs and with this application, was in effect trying to have this Court review its earlier decision, which the Supreme court in Trinity Engineering (Pvt) Limited v. Zambia National Commercial Bank Limited (supra), stated was not permissible in an application under Order 20, rule 11 of the white Book. R13 It has further been submitted by the Plaintiff that the core of this application is that the Defendant is dissatisfied with this Court's order relating to costs and instead of appealing against the decision in as far as costs awarded are concerned, the Defendant is trying to mislead this Court by invoking the provisions of Order 20, rule 11 of the White Book, which in the Plaintiff's view, is not applicable. It was contended that even assuming that there was a e clerical mistake by this Court, which the Plaintiff insists there was not, the Defendant in its Summons and Skeleton Arguments in Support has clearly asked this Court to 'interpret and/ or amend the judgment'; which according to the Plaintiff, is more than asking this Court to merely correct a clerical mistake but in essence amounts to asking the Court to substitute its decision with a more favourable order as regards costs awarded to the Defendant. That, Order 20, rule 11 cannot be used to "interpret and/ or amend" as interpreting and amending goes far and beyond merely correcting clerical mistakes which is what Order 20, rule 11 is intended for. The brief background to the application before this Court is that on 28th April, 2020, this Court granted the Plaintiffs application to amend the Writ of Summons and Statement of Claim and in doing so, ruled as follows with regard to costs: "Costs of and incidental to this application are awarded to the Defendant." It is the above ruling on costs which the Defendant wants this Court to clarify by making its intention clear. Further, the Defendant has asked this Court to interpret and/ or amend the ruling above in order to make the Court's intention clear. It is the t • e R14 Defendant's contention that the intention of this Court was to award costs occasioned to the Defendant from the commencement of the action and not to limit the costs to the application before court. The Defendant argued that the Court's intention to award costs to the Defendant from commencement of the action can be seen from the Ruling of the Court of 28th April, 2020 at page R15 where it said: "Finally, with regard to the Defendanes argument that allowing the Plaintiff to amend its pleadings will necessitate the preparation of a new defence by the Defendant and thereby incurring new costs, it is my view that the concern can be addressed by an order for costs in favour of the Defendant." While agreeing with the Defendant that the court has an inherent power to vary its own orders so as to carry out its meaning and to make the meaning plain as stated by the Supreme Court in the case of Abb Oy v. Luanshya Copper Mines Plc. (supra), I am of the view that in the present case the ruling on costs is clear and does not need any variation or amendment in order to clarify it. Contrary to the submission by Counsel for the Defendant that the intention of this Court in the Ruling alluded to was to award costs to the Defendant from commencement of the action, a reading of the order on costs, clearly shows that the intention of this court was to order the Plaintiff to pay to the Defendant the costs of and incidental to the application for amendment of the Writ of Summons and Statement of Claim. It is also clear from the statement made by this Court at page R15 of the said Ruling that the Court was addressing the Defendant's concerns that allowing the Plaintiff to amend its pleadings would necessitate the .. RlS preparation of a new defence by the Defendant and thereby incurring new costs. The Court clearly indicated that the concern (about incurring new costs) could be addressed by an order for costs in favour of the Defendant (underlining by the Court for emphasis only). There is nothing in the Court's quotation from page R 15 above to indicate that the Court was referring to costs incurred by the Defendant from the beginning of the action. I am of the view that the quoting by the Defendant of Practice Note 20/8/52 is proof that the Defendant is dissatisfied with the award of costs by this Court as the said Practice Note is giving an explanation on how costs should be awarded. Further proof that the Defendant is dissatisfied with the award of costs by this Court lies in its argument that the Court was asked to make a special order of costs of the action consequent on the amendment and the Defendant exhibited all the fee notes showing the amounts expended by the Defendant and for which the Plaintiff ought to have been condemned in costs. For the above reasons, I am in agreem ent with the submission by the Plaintiff that the Defendant was simply not happy with this Court's ruling on costs and instead of appealing against the said order, decided to bring an application under the slip rule. It is manifest from a reading of Order 20, rule 11 of the White Book which is referred to as the "Slip Rule" , that it was meant to provide a means for a court to correct clerical mistakes 1n judgments or orders or errors arising from accidental slips or om1ss10ns. It was by no means meant to extend to applications for R16 .. ' interpretation and amendments of judgments or orders. As correctly submitted by the Plaintiff, Order 20, rule 11 cannot be used to "interpret and/ or amend" as interpreting and amending go beyond merely correcting clerical errors or accidental slips, which is what Order 20, rule 11 is intended for. Therefore, Order 20, rule 11 is not appropriate for the application before this Court as there is no clerical mistake or error in the Ruling of 28th April, 2020 arising from an accidental slip or omission which can be corrected by the Court. Clearly, the Defendant was dissatisfied with the decision of this Court on costs and since leave to appeal was denied in the Ruling of 28th April, 2020, the Defendant should have applied to a Judge in the Court of Appeal for leave to appeal against this Court's ruling on costs. The net result is that the application for interpretation and amendment of judgment has failed and is accordingly, dismissed with costs to the Plaintiff, to be agreed or taxed in default of agreement. Leave to appeal is granted. Delivered at Lusaka this 6 th day of October, 2020. DR. W. S. MWENDA JUDGE