Motor Holdings (Z) Limited v Raman (SCZ 17 of 2001) [2001] ZMSC 34 (12 December 2001)

MOTOR HOLDINGS (Z) LIMITED v RAJ RAMAN Supreme Court Ngulube, C. J, Chirwa and Mambilima J. J. S. 21st November 2001 and 13th December 2001 (SCZ Judgment No. 17 of 2001) Flynote Civil Procedure – rehearing of a matter – Conditions thereof. Courts – Coram - Majority ruling – Effect of. Headnote Counsel for the respondent brought a motion under the slip rule alleging accidental slips or omissions. Counsel advanced a proposition in the motion to the effect that where one of three Judges who heard an appeal dies before the judgment is delivered the remaining two Judges are deprived of the necessary quorum and therefore lack jurisdiction to render a Judgment by the majority. Held: (i) The determination of any question before the Court shall be according to the opinion of the majority of the members of the court hearing the case. In the event of the death of a Judge who was one of the three members of an appellate court which heard a case, a rehearing must take place only if the remaining two do not agree and hence there is a deadlock. No rehearing can be necessary when a majority of the Judges are agreed and even assuming the deceased Judge been alive he would have dissented. Legislation referred to Supreme Court Act, Cap. 25, s. 3. Case referred to: Kelly and Company v Kellond [1888] QBD Vol. 20-569. Work referred to: Halsbury’s law of England 4th Edition volume 10 paragraph 726. W. M. Kabimba of Messrs Kabimba and Company, for the appellant. J. M.. Chimembe of JMC Associates, for the respondent. Judgment NGULUBE, C. J. delivered the judgment of the court. This is a ruling on a motion moved by the respondent. When we heard the motion, we denied it and said we would give our reasons later. This we do now. On 8th November, 2000, a penal of three Judges heard the appeal in the case and this was in keeping with Section 3 of the Supreme Court of Zambia Act, Cap. 25, which in subsection 1 ordains that the court should sit with an odd number of judges being not less than three. The panel in question consisted of Ngulube, CJ, Chirwa, JS and the late Muzyamba, JS. After the hearing but before the delivery of the judgment, the Ccurt suffered the grievous loss of Justice Muzyamba who expired. In keeping with a longstanding practice of this court, the judgment of the court if it would have otherwise been a single unanimous judgment or the individual judgments where at least two judges are agreed, is delivered as one by the majority. This is what we did in this case. The respondent brought a motion colourably under our slip rule, that is Rule 78, alleging unspecified accidental slips or omissions. At the hearing, counsel abandoned that line of argument without advancing a single submission. Instead, he dealt with a proposition advanced in the motion to the effect that where one of three Judges who heard an appeal dies before the judgment is delivered, the remaining two Judges are deprived of the necessary quorum and therefore lack jurisdiction to render a judgment by the majority. This startling proposition was said to be supported by the case of Kelly and Company -v- Kellond (1). Counsel relied on the following observation by Lord Esher M. R. at page 572:- “This court is composed of six members, and if at any time a decision of a lesser number is called in question, and a difficulty arises about the accuracy of it, I think this court is entitled, sitting as a full court, to decide whether we will follow or not the decision arrived at by the smaller number.” A perusal of the Master of the Roll’s preceding and subsequent remarks shows that the point – which counsel here has missed – was that the Court of Appeal was Appeal was there discussing the principle of stare decisis which is still followed to date. The Court of Appeal follows its own previous decisions unless resiled from for very good cause in a subsequent case. They were not discussing the question of sitting to reverse or vary a final judgment already delivered. Most certainly, they were not discussing what should happen when one of the judges who heard an appeal dies before judgment is rendered. It was suggested that a rehearing should ensue as a matter of course. While this may be inevitable where the remaining Judges are evenly divided – (such as one against one; two against two; and so on)- no rehearing can be necessary when a majority of the judges are agreed and even assuming had the deceased judge been alive he would have dissented. The suggestion that the majority cannot carry the day flies in the teeth of the law, the very Section 3 of the Supreme court of Zambia Act cited by counsel who relied on Subsection 1 which requires an uneven number to sit, not being less than three. In Subsection 2, it says:- “ (2) The determination of any question before the court shall be according to the opinion of the majority of the members of the court hearing the case. The subsection is an exact and complete answer to counsel’s submissions. It follows therefore that in the event of the death of a judge who was one of the three members of an appellate court which heard a case, a rehearing must take place only if the remaining two do not agree and hence there is a deadlock. If the remaining two agree, they constitute the majority and their decision is the decision of the coram. We consider that our approach is the correct one and that it has some support from paragraphs 726 of Vol. 10, Halsbury’s Laws of England, 4th Edition; where examples are given in the notes of a judgment written by a deceased Judge being adopted as his own and delivered by a colleague who sat with him, and an example of a case being sent for rehearing where two remaining Judges did not agree. It was for the foregoing reasons that we rejected the motion which, as it turned out, was not even under Rule 78 any more. Costs follow the event. Motion rejected