Trinity Engineering (PVT) Ltd v Zambia National Commercial Bank Ltd (SCZ JUDGMENT No 7 of 1996) [1996] ZMSC 56 (22 May 1996)

TRINITY ENGINEERING (PVT) LTD v ZAMBIA NATIONAL COMMERCIAL BANK I LTD G (1995 - 1997) ZR 166 (SC) SUPREME COURT I BWEUPE DCJ, CHIRWA and MUZYAMBA JJS H 9 April and 22 May 1996 (SCZ JUDGMENT No 7 of 1996) Flynote Practice - Judgments and orders - Correction of - Slip rule - Not for reviewing and setting I aside I previous judgment. Headnote After allowing an appeal the applicant applied for the correction of the Court's judgment on the basis that the award should have been expressed in kwacha and not US dollars. It I was suggested that the Court could do so on the basis of the slip rule. J 1995 - 1997 ZR p167 I NGULUBE CJ Held: That the slip rule was meant for the Court to correct clerical mistakes or errors in a judgment arising from accidental slips or omissions. In the present case the applicant was effectively seeking the reviewing and setting aside of the previous judgment which I was not permissible. A Application dismissed. E C Lungu, Andrew Masiye & Co, for the appellant. C Mabutwe, Director of Legal Services ZNCB, for the respondent. I Judgment B Ngulube CJ, delivered the judgment of the Court. This is an application under order 50 rule 1 subrule 55 of the RSC 1993 edition to set aside the judgment of this Court given on 29 January 1996 on the ground that material evidence on record was not considered by the Court. When we heard arguments we dismissed the application and said we would give our reasons later and this C we do now. The brief history of the matter is that in the Court below the parties signed and filed a consent judgment expressed in US dollars in favour of the appellant. The judgment was approved by the trial Court. Later the respondent applied to set aside the judgment alleging mistake and fraud in obtaining the consent. The trial D Court found that there was no mistake or fraud but nevertheless allowed the application and set aside the judgment on the ground of illegality of the contract, ie that it contravened the exchange control regulations then in force. The appellant then appealed to this Court. There was no cross-appeal on the lower Court's E finding that there was no mistake or fraud in singing the consent judgment. We heard arguments and considered the appeal and we were satisfied that there was nothing illegal about the whole transaction and allowed the appeal and restored the consent judgment. In the application presently before us it was argued by Mr Mabutwe that had we considered the F documentary evidence that was before us we would have found that the agreement was to pay in kwacha and not US dollars and that the amount held by the respondent to the appellant's credit was far less than the amount stated in the consent judgment. Further, that the appellant was to bear the exchange loss fluctuations. G He I therefore urged the Court to set aside the judgment using the slip rule and relied on order 59 rule 1 subrule 17 RSC 1979 edition. In response, Mr Lungu argued that the slip rule was meant for the Court to correct clerical mistakes or errors in a judgment arising from accidental slips or omissions and that practice was found in order 20 and not order 59 cited by Mr Mabutwe. That in this case Mr Mabutwe was seeking more than mere correction of the H judgment. That in any event there were no mistakes or errors in the judgment to be corrected. We have considered the arguments by both counsel. We note that although the application was brought under order 59 rule 1 subrule 55, 1993 edition Mr Mabutwe did refer us, in his argument, to order 59 rule 1 subrule I 17, 1979 edition. Unfortunately we do not have the 1979 edition in our library. We have however looked at the various I I I I I White Books starting from 1976 to the 1995 edition and we found that order 59 deals with appeals to the Court of Appeal and has nothing to do with amending judgments. I The power of the Court to amend judgments for accidental J 1995 - 1997 ZR p168 slips or omissions is found in order 20 of RSC and rule 78 of the Supreme Court rules, cap 52 which provides: '78 Clerical errors by the Court or a judge thereof in documents of process, or in any judgment, or errors I therein A arising from any accidental slip or omission, may at any time be corrected by the Court or a judge thereof.' There can be no doubt that this Court has powers on motion to correct any accidental slip or omission in expressing its manifest intention. But this is not what the respondent I is seeking. It is seeking to set aside the B judgment and re-open the appeal. Has this Court jurisdiction to re-open an appeal or indeed review its own judgment? Order 59 rule 1 subrule 60 RSC, 1995 edition provides in part: I 'The Court of Appeal has power to alter its decision before its order has been perfected, but it has no power to C rehear an appeal after its orders has been passed and entered, even on the ground of subsequent discovery of facts which tend to show that the order of the Court of Appeal was obtained by the fraud practised in the Court below. The remedy in such a case is by action to set aside the order as having been obtained by fraud.' Quite clearly, therefore, this Court has no jurisdiction to review its judgment or set it aside and re-open the D appeal. If it were not so then there would be no finality in dealing with appeals. As regards Mr Mabutwe's argument that we did not consider the documents on record we would comment that the documents no doubt formed the basis for a negotiated settlement out of court between the parties E that gave rise to the consent judgment. Therefore, the question of our considering the documents did not in any way arise. It was for these reasons that we dismissed the application with costs to the appellant to be I taxed in default of agreement. F Appeal dismissed. I I 1995 - 1997 ZR p168