Muhongo v Attorney General (Appeal 59 of 1987) [1988] ZMSC 68 (31 May 1988)

IM THE SUPREME COURT OF ZAMBIA Appeal No. 59 Of 1987 HOLDEN AT LUSAKA ............... ......... ( .. (Civil Jurisdiction) ' ;Lo : : p "Ji ue vie in this ca^ ■ KALALUKA MUHONGO Appel1ant > :■ uor^ft<and:udqmGi'it aiK» the sssessmFnt or damages THE ATTORNEY-GENERAL?n RESPONDENT^ts « CORAM: Ngulube, D. C. J., Gardner/ J. S. and Bweupe, AJ. S. . s-r,, -c .;n .... -'f-urr j’rH Jn f'/S to to the writ ano t that 31.st;jMayj?« 1988(y, fcprt^en D. M. Luywa, OF Luywa and Company /for the appellant a^’X« L. Goel, Senior State Advocate, for the respondents^ </ Cj£,?.»7< Sh’/.i’d /: ■ S'?f V-G Ngulube, D. C. J.’delivered the ruling of the court ... • ■ \y- ■. .-if -^.i jtoerty to apply; and costs or tne th^t th* l<a '".-ould f-- z, The appellant (the plaintiff) in this appeal took out a specially -hifMA * ! USWJ ti! 1 H SiX , , ■ tf t IC ! U;“ . - . ’ ■ & ‘ • endorsed writ in the High Court in which a specific sum of money-said ‘ ' • r - J ■ n ‘:Q . I -1' ■ r ■ to be the value of a boat which was damaged-was claimed together with a hiring fee. Consent judgment was entered before the learned trial judge and thereafter the matter proceeded to assessment of damages. During the assessment, the plaintiff again repeated the claim as endorsed on the writ. Having listened to the arguments on both sides, it is quite clear to us that the plaintiff's position now is that a r terrible mistake was made right from the very beginning. For that ' c, C. ‘." ; Cb0 reason, an application has been made by Mr. Luywa to amend the writ and to begin the entire action afresh. Mr. Goel on behalf of the defendant has opposed the application and he has4argued,, among, other.,. things, that there ought to be finality to litigation. While we agree with Mr. Goel's submission and while it is'obvious that the parties should expect to be bound by their pleadings and by the manner in which they have presented their case, it is also clear that where an obvious mistake has been made‘and’where/the'justice’of the case demands that matters be put right,’it is’in the’wider interests J2 of justice to allow the plaintiff to correct such obvious mistakes. We have given very careful consideration to all the submissions and we are satisfied that justice will only be seen to be done in this case by making the following order: . We set aside the consent judgment and the assessment of damages which was based upon such consent Judgment. We award all the costs of the previous proceedings in the. court below and in this appeal to the defendant. We allow an amendment.to the writ and direct that the plaintiff do file and serve the amended writ within the next fourteen days. Thereafter the following order for directions shall apply. The amended statement of claim should be served within twenty-one days; the defence to the amended statement of claim should be served within twenty-one days; the, reply1 if any within fourteen days; discovery by lists upon notice within fourteen days; Inspection ten days thereafter; trial before a single judge at Lusaka within six weeks of the close of pleadings; liberty to apply; and costs of the fresh action in the cause.; For clarity, we should Indicate that the:; costs occasioned by the amendments up to and including the delivery of a new defence will be the defendant's and to be borne by the ' <!’’ plaintiff in any event. : .1 ‘ ft of Ganges.. ....... ...' ■:>, . i it. pt 1 f f' jU tM CUjm ,... ...... . . . h- Unad to th# plaintiffs p0£itP» now it that a ( M.o^SVt-Nguiube^ .... DEP^^ th- •viUre action efrsshy Mr- Geel on Uhalf of the the Wii$>ti^ anif ne nas arg^d, anssng " ' . ■^j,. • . B. T. Gardner, ... -uysupreme court judge'' •’ ’ X'nn:. uy ;;&• ay . ' ' m nretKnv.vj r.^ir Casa, it 1" B. K. Bweupe?^ th* ACTING SUPREME COURT JUDGE