The Attorney-General and Anor v Gershom Moses Burton Mumba (APPEAL NO. 50/2002) [2006] ZMSC 59 (29 May 2006)

.. ...,..,,,,. IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 50/2002 HOLDEN AT LUSAKA · SCZ Judgment No.19/2006 (247) (Civil Jurisdiction) BETWEEN: THE ATTORNEY-GENERAL DEVELOPMENT BANK OF ZAMBIA l•t Appellant 2nd Appellant And GERSHOM MOSES BURTON MUMBA Respondent Coram: Sakala, CJ. Mumba and Chitengi, JJS. On 22nd March, 20,06 and 29 th May, 2006 .·, .' For the 1st Appellant: I/ Mr. J. Jalasi Principal State Advocate For the 2 nd Appellant: Mr. B. Gondwe - Legal Counsel For the Respondent: Mr. W. Mubanga of Messrs Per~anent Chambers JUDGMENT Chitengi, JS, delivered the judgment of the court. Case referred to: - 1. Trinity Engineering (PVT) Ltd V Zambia National ' Commercial Bank Ltd (1995/1997) ZR 189. ' ' - 12 - Legis1ation referred to: - 1. Rule 78 Supreme Court Rules Supreme Court Act (248) Chapter 25 of the Laws of Zambia Works referred to: - 1. Blacks Law Dictionary at Page 563 This is a Notice of Motion by the Respondent pursuant to Rule 78 of the Supreme Court Rules, Chapter 78 of the Laws of ·,: Zambiaf1J and Order 20 Rule 11 of the Rules of the Supreme Court 1999 Edition to correct a judgment. The Notice of Motion is supported by .flil Affidavit sworn by the Respondent, Gershom Mos<:,s Burton Mumba. !/ This case is not without history. The Respondent who, prior to the termination of his services on 18th June 199~, was the Managing Director of the Second Appellant, commenced an action in the Industrial Relations Court for wrongful dismissal. Q The Industrial Relations Court found for the Respondent and awarded the Respondent damages equivalent to the unfinished period of his contract of service and to be computed on the emolum_ents .. ofthe Respondent's successor in office and which emoluments were superior to those enjoyed by the Respondent. On appeal by the Appellants, we reversed the Industrial Relations Court's award and instead made an award of 12 - J3 - months pay plus allowances calculated on the Respondent's last salary and allowances. (249) We delivered the judgment allowing the appeal on 19th December, 2002. In that judgment, we did not award the Respondent interest on the damages we. awarded him. Subsequent to our judgment of 19th December, 2002 the Respondent took out a Notice of Motion plea~ing that we had inadvertently omitted to award him interest on the damages. We were readily amenable to the Respondent's prayer and we awarded him interest on the damages. When awarding the Respondent interest .we said this: - it· :, ,/ "We agree that this is a case that falls under Rule 78 of the Su}Jreme Court Rules, which is our slip rule. We have looked at the Plaintiff's Notice of Complaint and note that interest was pleaded. We are satisfied that had we had in our minds at the time. we delivered the judgment the fact that interest had been pleaded we would have included it in our judgment and we would not have made the omission which we now correct." We awarded the Respondent 10% interest in respect of the " damages irr Kwacha and 3% interest in respect of the damages in dollars. - J4 - (250) Our judgment to that effect was delivered on 19th April, 2004. After that nothing was said about this q;:tse and we thought the case was finished. We deceived ourselves. Almost two years later, the Respondent has come to us again claiming more money by way of interest saying that we made another mistake, which we should correct. This time the alleged mistake to be corrected is that we should have awarded the Respondent 7% interest on the dollar co+nponent of the damages and not 3%. The contents of the Affidavit in Support of the Notice of Motion mostly contaii;;i. argument. To the extent that the Affidavit deals with facts, its theme is that the award of 3% interest on •• the dollar component of the damages was an error or clerical ,/ # . mistake, which can be corrected within the Rules. The second Appellant filed an Affidavit in Opposition sworn by Q its Director of Finance, one Rose Gertrude Kacha Malila Phiri. Apart from referring to matters, which are for argument, the second Appellant's Affidavit devoted itself to how foreign currency interest is determined under a regime called LIBOR which is an acronym of London Interbank Offered Rate. We say no mbre about LIBOR because we cannot rest our Judgment on the practice of LIBOR. - JS - (251) Coun,sel addressed us at length. But on account of the view we take of this Notice of Motion, it is not necessary for us to ,, reproduce the details of the submissions and the authorities cited to us. Suffice it to say that we have given the submissions and the authorities cited therein our careful consideration. We accept Mr. Mubanga's submissions that a successful party is entitled to interest. We also agree with Mr. Mubanga that this court has the jurisdiction to correct its judgment. Mr. Musukwa, learned counsel for the second Appellant does not advance argu~ent c9ntiary to these submissions. _,, :' As we see itl/ the critical issue is whether this- application falls under the slip rule. Mr. Mubanga submitted Qi.at the correction can be made on the Notice of Motion because this is not a matter of either appeal or rehearing. It was Mr. Mubanga's submission that what happened here was an error in copying and not Judicial reasoning. He said the court did not establish its reasoning on the 3%-interest. It was Mr. Mubanga's submission that there was a clerical error to be corrected. In answer to these submissions, Mr. Musukwa submitted that this application does not fall under the slip rule. It was Mr. - J6 - Musukwa's submission that the court considered all respects of the matter and did not make a· mist;:i.ke or error in the judgment qualifying it to be dealt with under the slip rule. (252) At this juncture, we wish to say that we have our own Rules and case law dealing with correction of judgment. Therefore, in determining this Notice of motion we have first to look to our own Rules and jurisprudence. In our, laws, the Rule dealing with correction of judgments is Rule 78 of the Supreme Court. Rule 78 reads: - ., " 78. Clerical errors by the court or a Judge thereof in document;:; or process, or in any judgment, or error therein arising from any accidental slip or omission may at any time be corrected by the court or Judge thereof" • I • Rule 78 does not define "clerical error'. Blacks Law Dictionary, works cited by Mr. Mubanga, defines "clerical error" at page 563 as: - ''An error resulting from a minor mistake or inadvertence, especially in writing or copying something on the record and not from judicial reasoning or determination." In the high'water mark case of Trinity Engineering (PVT) Ltd V Zambia National Commercial Bank Ltdl11 on slip rule; we held that the slip rule was meant for the court to correct - J7 - cleric?} mistakes or errors in a judgment ans1ng from accidental slips or omissions. (253) After reviewing the law on slip rule, we have to consider whether the award of 3% interest on the dollar component of the damages amount to a clerical error in terms of Rule 78. We have no difficulty in holding that there was no clerical error. Contrary to Mr. Mubanga's submissions that we made no decision on interest, our judgment is clear that we applied our minds to the interest on foreign currency and awarded the Respondent 3%. This is what we said when awarding the it' Respondent 3°/o interest: - . ;, "About interest on dollar. As we have said in several cases i/1,,terest on foreign currency is genetally low. In this case we award the Plaintiff interest on the dollar component of the damages at 3% from the date of Notice of Complaint until final payment." These words are clear in their terms. Even an elastic interpretation of this passage cannot lead one to the conclusion that there was a clerical error arising from accidental slips or omissions. In the event, we accept Mr. Musukwa's, submissions that the Court made a decision on the interest of 3%. .. 0 - JS - (254) The e_rrors envisaged by Rule 78 should be errors within the documents, or process or judgment under inquiry. In the earlier Notice of Motion, we had no difficulty to award the ~ Respondent interest because clearly we made an omission to award the Respondent interest, which he had pleaded and there was no reason to deny the Respondent interest. In this case, there is nowhere in the judgment where we referred to 7% interest before we awarded the Respondent 3% interest. In his submissions and arguments, Mr. Mubanga referred to an earlier case where we awarded 7% interest on foreign currency. Further, _Mr. Mubanga also talked about the need •· :, for consistency. These arguments make us firm and confident in our minc\l.s that this application has nothing to do with correcting clerical errors but has something to do with challenging the correctness of our judgment when we awarded the Respondent 3% interest on the dollar component of the damages. In the event, we accept Mr. Musukwa's submissions that the Respondent in this case is effectively seeking a review of our Judgment of 19th April, 2004. As we said in the Trinity Engineering (PVT) Limited case(11, we have no jurisdiction to review our judgment and to reopen the appeal. We also said that there should be finality in dealing with appeals. --- - - - - - - - - - - - - ------ - - - - - - - J9 - We find no merit in this motion and we dismiss it. But having regard to the circumstances of the -entire case, we make no ~ order as to costs. (255) ~ ........................................ E. L. SAKALA CHIEF JUSTICE ~ ·········~······························· F. N. N. MUMBA SUPREME COURT JUDGE :, .1 !/ ETE ITENGI SUPREME COURT JUDGE 0