Chipasha and Ors v Swarp Spinning Mills PLC (Appeal 129 of 2006) [2009] ZMSC 146 (14 May 2009)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 129/2006 HOLDEN AT LUSAKA (CIVIL APPELLATE JURISDICTION) BETWEEN: DARIUS CHIPASHA AND 99 OTHERS APPELLANTS AND SWARP SPINNING MILLS PLC RESPONDENT Coram: (cid:9) Sakala CJ, Mumba, Chitengi JJS On 16th July 2008 and 14th May, 2009. • For the Appellants: Non Appearance For the Respondent: Mr. K. H Makala of Messrs Makala and Company JUDGMENT Chitengi, JS, delivered the Judgment of the court. In this case, we delivered the final Judgment on 5th . September, 2007. Both the Appellants and the Respondent were partially successful in their appeal and cross appeal, respectively. Subsequent to this, the Appellants took out a Notice of Motion pursuant to Rule 78 of the Supreme Court Rules, which is our slip Rule, to rectify errors, mistakes and omissions in our judgment aforesaid. The notice of Motion was supported by an affidavit, the contents of which have nothing to do with errors envisaged by Rule 78. The contents of the affidavit in fact are a challenge of our judgement. (cid:9) (cid:9) r Quite rightly, Mr Makala, learned Counsel for the Respondent, did not file an affidavit in opposition, but filed a Notice to Raise a Preliminary issue. In the Notice to Raise Preliminary issue, Mr. Makaka pointed out that the prayer sought in the Motion is that the court should review its judgment when the court has no jurisdiction to do so. At the hearing of the Notice of Motion, the Appellants and their Counsel did not appear. Dr Soko, learned Counsel for the • Appellants, filed Notice of Non Appearance and written heads of argument. Mr. Makala, learned Counsel for the Respondent, appeared and filed written heads of arguments and addressed us orally. In the view we take of this Motion, we do not find it necessary to restate the written heads of argument and the oral submissions by Mr. Makala and the written heads of argument filed by Dr Soko. (cid:9) Suffice it to say that we have given the submissions our careful consideration. As Mr. Makala rightly submitted, this Notice of Motion is in effect an invitation to us to 40 (cid:9) review and upset our final judgment. This Notice of Motion has nothing to do with clerical error, or accidental slip etc. The Judgment is clear. As we have said, the matters raised are actually a challenge of the correctness of our judgment. This Notice of Motion should not have been brought at all and it is a total abuse of court process as it has nothing whatsoever to do with Rule 78, which is our slip Rule. Counsel for the Appellants must incur our censure for bringing this Motion which even one V who has a cursory look at Rule 78 cannot imagine bringing to court. The Notice of Motion has no merit in it and we dismiss it with costs to the Respondent to be agreed upon and, in default, to be taxed. E. L. SAKALA CHIEF JUSTICE F. N. M. MUMBA (cid:9) SUPREME COURT JUDGE (cid:9) PE SU • -" NGI EME CLURTcJUDGE I