Oliver John Irwin v John Irwin (Appeal 89 of 2004) [2007] ZMSC 47 (29 August 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: APPEAL NO. 89 OF 2004 OLIVER JOHN IRWIN AND JOAN IRWIN APPELLANT RESPONDENT CORAM: LEWAN1KA, DCJ, CHIBESAKUNDA AND SILOMBA, JJS. On the 20th September, 2006 and 29th August, 2007 • For the Appellant: Mr. F. Mudenda of Lewis Nathan Advocates For the Respondent: Dr. Rodger M. A. Chongwe, SC, of R. M. A. Chongwe and Company For the Intervening Party: Mr. V. Malambo, SC, Malambo and Company RULING SILOMBA, JS, delivered the ruling of the Court. Case referred to:- 3. (cid:9) Miyanda -Vs- The Attorney General (1985) ZR, 243. The delay in the delivery of the ruling and the consequential inconvenience caused to the parties is deeply regretted. In our judgment of the 24th of March, 2006 we remitted a matter to the Deputy Registrar with a directive that the appeal to a Judge at Chambers, which was on the 5th of August, 1992 adjourned sine die with liberty to restore by consent of the parties, be restored so that the appeal can be determined. The directive to the Deputy Registrar followed an appeal to the nd of October, Court against the ruling of the learned trial Judge of the 22 R2 2003 in which he dismissed the appeal to a Judge at Chambers for want of prosecution despite the fact that the appeal had been adjourned sine die and had not been restored. As a result of our directive, the Deputy Registrar, in his ruling of the 17th of July, 2006, granted an application to restore the appeal to a Judge at Chambers. Consequently, the respondent, being aggrieved by the ruling, filed a notice of motion pursuant to Rule 48(5) of the Rules of the Supreme Court, as read together with Section 8 (ii) and Section 25(i) (b) (iv) of the Supreme Court of Zambia Act, Chapter 25, challenging our directive to the Deputy Registrar on the ground that it was given per incur/am for the easons:- following reasons:- 1. (cid:9) 1. That under section 8 (ii) of the Supreme Court Act the Court is empowered to exercise its jurisdiction where- the "Act or the rules of Court do not make provision for any particular point of practice and procedure; "the practice and procedure of the Court shall be in relation to civil matters, as nearly as may be the practice for the time being observed by the Court of Appeal in England." 2. That in his Ruling the Deputy Registrar has stated; citing with approval the decision of the Court of Appeal in Young -Vs- British Aeroplane Company Limited (1944) 2 AELR 293; that as with the Court of Appeal in England only the Supreme Court of Zambia can depart from its own decision given per incur/am. The lower Court has no such power. It is for this reason that the Respondent asked the Deputy Registrar to send back this decision to the Court. 3. The question of law now being raised by the Respondent has never been raised in this Court before as far as is known by the Respondent. It is necessary for the Court to give direction regarding its own decisions which are given per incur/am. I R3 As already pointed out, the notice of motion was filed pursuant to Rule 48(5) of the Rules of the Supreme Court of Zambia Act and, as per the notice of motion Rule 48(5) was to be read together with Section 8 (ii) and Section 25(i) (b) (iv) of the Supreme Court of Zambia Act. In terms of Section 8 (ii), the notice of motion alleges that the procedure and practice observed by the Court of Appeal in England is not compatible with our 24th of March, 2006 directing the Deputy decision in the judgment of the Registrar; that the directive is inconsistent with the provisions of Order 3, rule 6 of the Rules of the Supreme Court and the authorities therein cited • underpinning the practice and procedure of the Court of Appeal in England. Both parties filed affidavits in support of and in opposition to the notice of motion. When we heard the motion, both parties relied on their respective affidavits and made elaborate submissions consistent with their filed heads of argument in order to give credence to their respective positions. However, in the view we take of the motion we do not intend to delve into the heads of argument and the submissions, suffice to say that we have duly considered them. The issue, as far as we can ascertain, is whether the court has power to review its own decision under Rule 48(5), let alone allow the parties to argue the appeal again. At the outset, we wish to make the point clear, which in any case is consistent with our previous pronouncements, that this court, unlike the Court of Appeal in England, is the final court of appeal for the Republic. As such, the decisions we make are final and binding on the parties. For example, we stated in Mivanda —Vs- The Attorney General, (1) R4 that "there is no rule, which allows the Court generally to amend or alter its final judgments; as all the issues raised in the application were canvassed and given due consideration in the judgment complained of, there was nothing accidental in that judgment. The foregoing re-statement of the law means that we have no jurisdiction to review our judgment or set aside the same and re-open the appeal. As a final court of appeal, our power is limited to the correction of any clerical errors arising from any accidental slips or omissions in a judgment pursuant to Rule 78 of the Supreme Court Rules. On the basis of our reasoning, the motion has no merit and is dismissed with costs to the appellant to be taxed in default of agreement. Our judgment of the 24th of March, 2006 still stands. D. M. Lewanika, DEPUTY CHIEF JUSTICE. L. P. Chibesakunda, (cid:9) SUPREME COURT JUDGE. (cid:9) PET.... (cid:9) S. S. Silomba, SUPREME COURT JUDGE.