Development Bank of Zambia and Anor v Jet Cheer Development Co (Zambia) Ltd (SCZ 1 of 2001) [2001] ZMSC 115 (26 June 2001)

IN THE SUPREME COURT FOR ZAMBIA SCZ RULING No. 1/2001 HOLDEN AT NDOLA AND LUSAKA Appeal No. 64/2000 (1) (CIVIL JURISDICTION) BETWEEN: DEVELOPMENT BANK OF ZAMBIA 1 ** Appellant AND LIVINGSTONE SAWMILL LIMITED 2nd Appellant AND JET CHEER DEVELOPMENT CO. (ZAMBIA) LIMITED Respondent CORAM: Ngulube C. J., Chaila and Lewanika JJs On 7th March and 26th June 2001 For the 1st appellant - L. P. Mwanawasa, SC, Mwanawasa & Co. For the 2nd appellant - A. M. Wood, Wood & Co. For the respondent - S. Sikota and K. Hang’andu, of Central Chambers Ngulube CJ., delivered the ruling of the Court This court heard the appeal in this case and delivered a final judgment in which the appellants were the successful parties. The trial court was reversed and we held that a contract for the sale of certain property had been validly rescinded. We also held that the respondent ought not to have been awarded specific performance because of conduct we regarded as coming to equity with dirty hands. Reference should be made to the judgment referred to for its full terms, import, purport and effect. In that same judgment, (2) we did not award to the vendors forfeiture of part or all of the deposit paid which was accordingly refundable to the purchasers. There were three motions brought before us, two by the respondents and one by the appellants. It should be noted for the record that such motions are increasingly becoming common place when they should be extremely rare and we will take this opportunity to restate when they can properly be made. The parties invoke the slip rule, which is Rule 78 of our Supreme Court Rules, CAP. 25 and this is in the following terms: “78. 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 ” The parties also invoke the English slip rule which is Order 20 Rule 11 of the Rules of the Supreme Court which we quote from the 1999 White Book - “20/11 — 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. ” In the documents filed by the respondents, they wished this Court to review its judgment, alternatively to order a stay of the same while they prosecute a fresh action against their opponents to set aside the judgment allegedly obtained by fraud. Thirdly, they wished to introduce allegedly fresh evidence by which they would deny that then- vendors were owed any money under the mortgage or had any longer the right to sell or even to appoint the person who was given the task of entering into the contract. As Mr. (3) Mwanawasa correctly pointed out in response, to deny that the first appellant had any locus standi would entail that the receiver appointed to enter into contract would have had no such standing either and the whole of the contract relied upon a non starter. We have no doubt that the respondents did not seek to bring about such a self defeating consequence: However, they also asked for a retrial; their counsel argued that they would seek to show at a retrial that their opponents had perjured themselves at the trial. In all the submissions or arguments, not once was any mistake through accidental slip or omission pointed out. We wish to reaffirm what we have said in the past: In GODFREY MIYANDA -v- THE ATTORNEY-GENERAL (No.2) (1985) ZR 243 we made it clear to the effect that unless it can be demonstrated that the court slipped up in some way which could not have been intended, the rule can not be invoked simply because a party is dissatisfied with the final judgment and wishes it to be varied or changed so as to bring about a result more acceptable to that party. This court cannot simply be called upon to change its mind in a case. Though not quite in point, the principle of stare decisis is instructive when it requires this court of last resort to follow a previous decision even if it was erroneous unless there were compelling reasons to resile from it or to overrule it. The reasons for this include the need for consistency and certainty since the abandonment of the rule would make the law an abyss of uncertainty: See PATON -v- ATTORNEY-GENERAL AND OTHERS (1968) ZR 185 which was quoted with approval as recently as in MATCH CORPORATION LTD. -v- DEVELOPMENT BANK OF ZAMBIA AND ANOTHER SCZ Judgment No. 3 of 1999. (4) Similarly, there is need for finality to a case and a general rehearing of an appeal already fully heard and decided on the merits can very rarely if ever be justified and then perhaps only on the most compelling grounds in order to avoid a serious failure of justice. Not even an allegation of fraud can justify a rehearing. In this regard, we draw attention to what this court said in TRINITY ENGINEERING (PVT) LTD -v- ZAMBIA NATIONAL COMMERCIAL BANK LTD (1995 - 97) ZR 166 when we said at page 168 - “There can be no doubt that this Court has powers on motion to correct any accidental slip or omission in expressing its manifest intention. But this is not what the respondent is seeking. It is seeking to set aside the judgment and re­ open the appeal. Has this Court jurisdiction to re-open an appeal or indeed review its own judgment? Order 59 rule 1 subrule 60 RSQ 1995 edition provides in part: ‘The Court of Appeal has power to alter its decision before its order has been perfected, but it has no power to rehear an appeal after its orders has been passed and entered, even on the ground of subsequent discovery of facts which tend to show that the order of the Court of Appeal was obtained by the fraud practiced in the Court below. The remedy in such a case is by action to set aside the order as having been obtained by fraud. ’ Quite clearly, therefore, this Court has no jurisdiction to review its judgment or set it aside and re-open the appeal. If it were not so then there would be no finality in dealing with appeals. ” It was in the same TRINITY case as reported at (1995 -97) ZR 189 when we affirmed that we can not be called upon to stay execution of a final judgment of ours, which was one of the matters raised here now before us. What we have said about the respondents’ motion under the slip rule applies with equal force to the allegation by the first appellant that the court accidentally failed to (5) order forfeiture of the deposit. The contract was on record and so was the evidence of the roles played by the parties, including the agent appointed by the first appellant in the transaction. This application, like the one by the respondents, cannot be entertained. We have not forgotten that the respondents were asking for a retrial in order to adduce further evidence and to show fraud. As Mr. Mwanawasa properly conceded, it was wrong for the High Court to have rejected a fresh action we understand was launched by the respondents to try and set aside the judgment as substituted by us for alleged fraud committed at the trial below. In the extract from the TRINITY case which we have quoted, there is quoted an excerpt from Order 59 rule 1 from the 1995 White Book. (See also White Book 1999 Order 59/1/151). The way to set aside a final judgment which has already been passed is by a fresh original action seeking to do so on the ground that the order was obtained by a fraud practiced on the court below. The leading case still cited for this is FLOWER -v- LLOYD (1877) 6 Ch. D.297 and the judgments by Jessel, M. R., and James, L. J., are very instructive. At pages 299 to 300, the Master of the Rolls said - ‘‘The question which we have to decide is whether, final judgment having been pronounced by the Court of Appeal dismissing an action with costs, the Plaintiff in that action is entitled by motion to apply for leave for a rehearing of the appeal before the Court of Appeal on the ground of subsequent discovery of facts which shew or tend to shew that the order of the Court of Appeal was obtained by a fraud practiced on the Court below. If there were no other remedy I should be disposed to think that the relief now asked ought to be granted, for 1 should be slow to believe that there were no means whatever of rectifying such a miscarriage if it took place; but I am satisfied that there is another remedy. In the first place it must be remembered that the old (6) practice remains where not interfered with by the new rules, and secondly, it must be remembered that all the jurisdiction of the old Court of Chancery is transferred to the High Court of Justice. Now, had the Court of Chancery any jurisdiction to give relief in such a case? It plainly had. I will read from the well- known treatise of Lord Redesdale (2): "If a decree has been obtained by fraud, it may be impeached by original bill, ” and he goes on to say, "without the leave of the Court’’ - but there are very few such cases, in most cases you must obtain leave — "the fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated. And where a decree has been so obtained the Court will restore the parties to their former situation, whatever their rights may be. ’’ So there is no doubt that under the old practice you could have brought an original bill to impeach a decree for fraud, and could have got relief if fraud in obtaining the decree was proved. ” In a concurring judgment, the Lord Justice said, at pages 301 to 302 - “I agree with what has been said by the Master of the Rolls, that in the case of a decree (or judgment as w call it now) being obtained by fraud there always was power, and there still is power, in the Courts of Law in this country to give adequate relief. But that must be done by a proceeding putting in issue that fraud, and that fraud only. You cannot go to your adversary and say. "You obtained the judgment by fraud, and I will have a rehearing of the whole case " until that fraud is established. The thing must be tried as a distinct and positive issue; "you’’ the Defendants or "you" the Plaintiff "obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of fraud. ’ That would be tried like anything else by evidence properly taken directed to that issue, and wholly free from and unembarrassed by any of the matters originally tried. That was the old course of the law, and there seems to be no reason why that should not be now followed; and if it is true that there was a fraud practiced upon the Court, by which the Court was induced to make a wrong decree, the way to obtain relief will be to bring a fresh action to set aside the decree on the ground of fraud. ” The third member of that court, Baggallay, L. J., agreed. We too most respectfully concur. We understand the High Court may have been reluctant to entertain the action to set aside for fraud practiced at the trial probably out of deference to this Court. The point t0 be made is that far from reversing the Supreme Court, the interests of justice are better (7) served by setting aside any verdict in favour of a party that obtained it by fraud which is proven in an original action not challenging the judgment of this court but in essence impugning the entitlement and right of the opponent to a verdict through the medium of a fraud practiced on the trial court from whence came the record relied upon by the apex court. The law frowns upon fraud and any attempts to profit by it. In sum, all the motions are unsuccessful. There will be no order for costs. M. M. S. W. Ngulube! CHIEF JUSTICE M. S. Chaila SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE