Mkushi District Corporative Union Ltd v Stanbic Bank Zambia Ltd and Anor (Appeal 75 of 2005) [2019] ZMSC 288 (21 January 2019)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 74/2005 BETWEEN: MKUSHI DISTRICT COOPERATIVE— aH>ElLANT UNION LIMITED ^<0- BOX 80067 AND STANBIC BANK ZAMBIA LIMITED WHITE BREWSTER KUMWENDA xst RESPONDENT 2nd RESPONDENT Coram: Chibomba, Phiri and Wanki, JJJS On 24th April, 2013 and 15th January, 2019 For the Appellant: For the Respondents Mr. M. Z. Mwandenga Of Messrs MZ Mwandenga & Co. Mr. S. Chisenga Of Corpus Legal Practitioners Phiri, JS, delivered the Judgment of the Court JUDGMENT Cases referred to 1. Trinity Engineering Limited vs. Zambia National Commercial Bank (1995-1997) Z. R. 166 The Hon. Mr. Justice E. Wanki was part of the Court that heard this Motion. He has since retired and this Judgment is by the majority. We deeply regret the delay in delivering this Judgment. This case has a long history. As will become apparent, there were a number of related Motions filed at the instance of the appellant after the first and final judgment of this Court was delivered on the 16th October, 2008. The current Motion was filed under Rule 71(b) of the Supreme Court Rules, Chapter 25 of the Laws of Zambia, seeking an order for leave to restore an application to amend an earlier Motion filed incorrectly by the appellant’s General Manager named Harrison Kalota (instead of the appellant’s Counsel) on the 21st February, 2011 under Rule 78 of the Supreme Court Rules. The latter Motion sought an interpretation of the second judgment of this Court delivered on 30th July, 2010 in which this Court gave an earlier interpretation to its earlier judgment delivered on the 28th October, 2008. In the Motion to amend the General Manager’s Motion, the learned Counsel for the appellant sought to add the following orders: i) That the judgment of this Court dated 10th August, 2010 (sic) be set aside; J2 ii) That the judgment dated 28th October, 2008 (sic) be deemed to be effective “as is” or “as was”; and iii) That costs of and incidental to the notice of Motion be borne by the respondents. None of these three orders were pleaded or included in the main Motion which the current Motion sought to amend and restore. There is an affidavit in support of the Motion to amend sworn by Mudford Zacharia Mwandenga giving the relevant background. In summary, the affidavit avers that Harrison Kalota filed a notice of Motion on his own but later instructed Messrs Marshal Chambers to represent the appellant; that when the matter came up for hearing on 21st November, 2012 Messrs Marshal Chambers withdrew from the case; that following the retention of Messrs M Z Mwandenga and Company to represent the appellant, it was observed that Mr. Harrison Kalota’s Motion did not specify the orders that were sought from this Court and that his affidavit in support of his Motion mainly contained complaints about this Court’s judgment delivered on 30th July, 2010; that when drafting the Notice of Motion, the said Harrison Kalota inadvertently did not J3 include orders that the appellant was seeking from this Court; that the redrafted Notice of Motion will be in substantial conformity with the Rules of this Court which inter alia, prescribe that orders being sought should be specified; and that the respondent would not be prejudiced or disadvantaged in any way by the proposed amendments. The Motion to amend Harrison Kalota’s application was opposed by an affidavit sworn by Twaambo Kalenga Chirwa and filed on 17th April, 2013. The averments in this affidavit were, in summary, that the proposed amendments were not tenable at law as they intended to expunge the final judgment of this Court in this matter; and that if allowed, the orders sought could prejudice the 1st respondent’s rights accrued under the final judgment. In addition to this opposition, learned Counsel for the 1st respondent filed a Notice to raise a preliminary issue on whether the Notice of Motion filed on the 21st February, 2011 pursuant to Rule 78 of the Supreme Court Act, Chapter 25 of the Laws of Zambia was properly before this Court, and whether the appellant being a Company can be represented by its General Manager in this J4 litigation. In support of the 1st respondent’s notice, heads of argument were also filed in which the 1st respondent cited the authority of our decision in the case of Trinity Engineering Limited vs. Zambia National Commercial Bank^1^ in which we pronounced the need for finality in dealing with appeals. At the hearing of this matter on 20th February, 2013, the learned Counsel for the appellant only presented the Motion to amend the Harrison Kalota’s application which, he acknowledged, was faulty and not in conformity with the Rules of this Court. There was no argument or submission on the merits of the original Motion filed by Harrison Kalota, which the 1st respondent’s Counsel vehemently objected. In order to have a holistic view of what was before us, it is necessary to note that the final judgment in this case was rendered by this Court on the 16th October, 2008 (SCZ Judgment No. 41 of 2008) in favour of the appellant. Thereafter, there was an attempted execution levied against the respondents in the sum of K13, 562,758,240.65 (unrebased) which the appellant claimed was the judgment debt after the successful appeal. Thereafter, the J5 appellant filed a Motion under Rule 78 of the Rules of the Supreme Court seeking an interpretation of the final judgment. The judgment of this Court in the said Motion was delivered on the 30th July, 2010. That judgment summarized the awards and made no order for costs as the awarded sum was found to have been paid together with interest. It was after that judgment when the said Harrison Kalota, the appellant’s General Manager personally filed another Motion pursuant to Rule 78 of the Rules of the Supreme Court alleging that the judgment of 30th July, 2010 contradicted the final judgment of 16th October, 2008. It is worth mentioning that all the parties in this case were legally represented both in this Court and in the Court below. The record of proceedings in this Court shows that the scheduled hearings of Harrison Kalota’s Motion could not proceed on three occasions due to non-attendance of the appellant’s Counsel until the Motion was struck out sine die. It is that Motion which the learned Counsel for the appellant sought to amend and restore. It is clear, therefore, that the issues that were brought to us are aimed at facilitating a revisit or review of the final judgment of J6 this Court, which activity was already done in 2010 culminating in the second judgment delivered on 10th August, 2010 in which the final judgment was clarified at the instance of an earlier Motion filed on behalf of the appellant. We were also asked to reinstate an incompetent Motion filed by Harrison Kalota on which we openly advised the said Harrison Kalota when he appeared before us; that his Motion was faulty and untenable for a number of reasons; including his defective affidavit filed in support thereof; an incompetent jurat; wrongly formatted exhibits, and failure to address a valid objection raised by the respondent’s Counsel in his Notice to raise preliminary issues. For the foregoing reasons and observations we see no value in restoring an incompetent Motion. We dismiss the Motions to restore and amend Harrison Kalota’s Motion, with costs to the respondent, to be taxed in default of agreement. H. Chibomba SUPREME COURT JUDGE GrS. Phiri SUPREME COURT JUDGE J7