Harja Import and Export Ltd v Zambia Revenue Authority (Appeal 48 of 1998) [2000] ZMSC 109 (18 July 2000)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL NO.48/98 (CIVIL JURISDICTION) BETWEEN HAJRA IMPORT & EXPORT LIMITED APPELLANT AND ZAMBIA REVENUE AUTHORITY RESPONDENT Coram: Chirwa, Muzyamba and Chibesakunda, JJS on 28th September 1998, 2nd March 2000 and 18th July 2000 For the Appellant: Mr Simeza of Simeza, Sangwa & Associates, Lusaka For the Respondent: Legal Counsel, Zambia Revenue Authority, Lusaka JUGEMENT Chibesakunda, JS delivered the Judgment of the Court Acts referred to: (. Customs and Excise Act Chapter 322, section 204 2. 3. 4. 5. Rule 78 of the Supreme Court Rules Halsbury’s Laws of England Volume 37,4th Edition RSC Order 20 Rule 11 of the Supreme Court Rules RSC Order 59 Rule 10 (1) of the Supreme Court Rules Cases Referred to: 1. 2. SCZ No. 48 of 1998 Ernest Sikalali Vs Pamodzi Hoel SCZ Appeal No. 115 of 1995 This appeal comes quite surprisingly for the second time before us. This time we proceeded to hear the appeal in the absence of the counsel for the respondent as allowed by our Rules upon accepting assurances by the J2 learned counsel and Master of the Supreme Court that the other side had been notified. The appeal had come before this court initially in September 1998. In our judgment of the 23rd of March 1999, Selected Supreme Court Judgment No. 48/98, we held that there were no merits in the appeal and we dismissed the appeal with costs because according to us:- “The considered view we hold is that the arguments advanced by Mr Simeza for the appellants do not hold as Section 204 of Cap 322 (1) says: “If an importer of any goods is of the opinion that the goods are incorrectly classified by the Commissioner-General under any item of the customs tariff, he may, if he pays the amount demanded as duty by the Commissioner-General or furnishes security to the satisfaction of the Com mission-Gen eral for the payment of that amount, within three months after the payment or furnishing of security, appeal to the Tariff Court against such classification.” In this case the appellants are seeking to avoid the application of this provision by seeking a judicial review. In our view, this is evading the law and as such cannot be allowed.” Mr. Simeza in his appeal now before us has argued that there is need for this court to reconsider the decision reached by this court under what he calls, ‘Slip Rule’. As at the time this matter was re-heard by this court the respondents were not represented, the arguments of Mr. Simeza are the only arguments for consideration by the court. J3 Mr. Simeza, the learned counsel for the appellant, raised two heads of arguments 1. That this court ought to adopt the approach adopted by the House of the Lords in England in the “Pinnocet Case,” a recently celebrated case in which the House of the Lords on more than one occasion sat and held different decisions justifying their sitting on more than one occasions by stating that according to them justice demanded that they re-sat. It is therefore his argument that we reexamine our previous decision in this matter. He argued that this was more so because our decision in the previous decision was solely based on invocation of Section 204 of Customs and Excise Act Cap. 322 (1) which was repealed. He however abandoned that ground particularly when he was reminded by the court that at the time of the commencement of the action in question the section was in existence. 2. That since our judgment was based on the allegation that the appellants had not complied with section 204, he argued that this court erred as there was no evidence before this court to conclude that the parties did not comply with the procedures as provided in section 204. He went on to argue that the parties were never afforded the chance to advance arguments on noncompliance or otherwise of the requirements of Section 204. According to him had the parties been alerted to this provision and its implications they would have had a chance to assist the court on whether or not there was failure or J4 avoidance to comply with the requirements of Section 204. He argued that the conclusion of this court was based on an assumption that section 204 was not complied with and as such this court should revisit its decision and allow the parties to advance arguments on the requirements of section 204. We have addressed our minds to these arguments advanced before us. Firstly, it is a well established principle that this court is bound by its decisions except where there are two conflicting decisions or where a previous decision was per incuriam. This is so because the maxim “interest reipublicae ut finis litium” must apply. The learned counsel has urged this court to reconsider its decision. We have had an occasion to consider this argument in the case of Ernest Sikatali Vs Pamodzi Hotel (2). In that case we cited rule 78 of our own Supreme Court Rules which says:- “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.” and held that slip rule or accidental mistake rule is only applicable if the court which made that decision finds a clerical mistake or some error arising from some accidental slip or omission or where the court finds it necessary to vary the judgment or order so as to give effect to that court’s meaning and intention of judgment. According to the learned Authors of Halsbury’s Laws of England, 4th Edition, Volume 37, page 518:- J5 ■‘The jurisdiction of the Court of Appeal which is part of the Supreme Court of England must be exercised so as to secure as far as possible that all matters in dispute between parties should completely and finally determined................ ” The same learned Authors at page 696 have stated that:- “The Court of Appeal applies the presumption when dealing with appeals that the lower court’s decision is correct.” The burden of rebutting this presumption rests with the appellant. Applying these principles to this case before us the considered view we hold is that there was no such accidental slip or mistake in our previous judgment. What the learned counsel is now saying to us in our view is that we ought not to have relied on Section 204 in reaching our decision as we did not afford them chance to argue it. Firstly, we are of the view that the learned counsel is taken to know the law. He ought to have alerted himself to the need of establishing that his clients complied with section 204 in respect of the seizure of goods. Need he be reminded of the cardinal principle that he who alleges must prove. It is not up to the court directly or indirectly to assist in establishing his claim. Secondly, except in exceptional circumstances this court has no power to receive further evidence. Therefore in view of the foregoing, we once again hold that in our view there is no merit in the appeal. Also in our view there are no exceptional circumstances for us to hold that justice demands re-sitting and rehearing the appeal as was in the Pinnocet Case. We therefore dismiss the appeal with costs.