Hybrid Pultry Farm (Z) Limited v Kalwa Food Products Limited (APPEAL NO. 102/2008) [2013] ZMSC 71 (14 November 2013)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 102/2008 HOLDEN AT LU[,:AKA (Civil J urisdiction) BETWEEN: HYBRID POULTRY FARM (Z) LIMITED APPELLANT AND KALWA FOOD PRODUCTS LIMITED RESPONDENT CORAM: Mambilima, DCJ, Chibesakunda, JS, as she then was, and Mwanamwambwa, J. J. S. On the 4 th of February 2010 and 14th November 2013 For the Appellant: Mr. C. Chonta, of Lewis and Nathan Advocates. For the Respondent: Mr. N. Sampa of Mumba Malila and Partbners. JUD6MENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. Hatter v Harris (1892) AC.560. Legislation referred to: 1. Rules of the Supreme Court, 1999. Order 62, Rule (10). Order 20, Rule 11. 2. Rule of the High Court. Order 40, Rule 6, -- J2 Order 36, Rule 9. This is an appeal agai11-st two Rulings of the High Court. Tl~e 1st Ruling is dated 26 th April 2007. The second is dated 23rd January 2008. In the 1st Ruling, the High Court refused to grant and order to correct the Appellant's perceived clerical mistake in the Judgment, arising from "accidental slip." The alleged clerical mistake and accidental slip relate to the non-awarding of interest and costs, in the Ruling of 29 th January 2007 to pay Judgment debt by e instalments. The Judgment in question was in default of appearance and defence. And it warded interest and costs to the Appellant. In the 2 nd Ruling, the High Court refused to grant the Appellant leave to appeal out of time on the ground that it was guilty of long delay in applying for leave to appeal out of time. The facts of the matter are as follows: On the 14th November, 2006, the High Court entered e Judgment in default of appearance and defence, for the Appellant, in the sum of Kl 73,.896,500.00, " plus interests thereon from 15th August 2006, till full and final payment and costs." On 30th November, 2006, the Respondent applied for an order to pay the Judgment debt by instalments. The lower Court granted the Respondent an Order to pay the Judgment sum, which then stood at K133,000,000.00, in four (4) equal instalments. On costs, the J3 lower Court said: "I award no costs." Next , the Appellant applied to the lower Court, for an order that it be awarded r,osts for that application. It claimed that the lower Court's Ruling accidentally omitted to award costs and interest in it's favour. The lower Court refused the application. It held that there was no error or omission to correct; since the default Judgment had already awarded interest and costs. The lower Court further held that the award of costs lies within the discretion of the Court. And that it had decided not to award costs to either party. After about four (4) months from the refusal, the Appellant applied to the lower Court, for leave to appeal out of time against it's earlier Ruling. On 23 rd January 2008, it refused to grant leave on the ground that the delay of four (4) months was inordinately too late. On 27 th March 2008, the Appellant was granted leave to appeal out of time by a single Judge of this Court. There are four (4) grounds of appeal. These read as follows: Ground One: The Court below erred in not warding costs to the Appellant arising from the Respondent's application to pay the Judgment debt in instalments. Ground Two: J4 The Court below erred in purporting to exercise its discretion on the applic~tion to pay in instalments wh-:!n there was no sufficient affidavit of means. Ground Three: The Court below erred in its ruling of 26th April, 2007 in finding that there was no accidental error in its ruling 29th January 2007 and also erred by failing to award costs to the Appellant. Ground Four: The Court below erred in its ruling of 23rd January 2008 in rejecting - with costs the Appellant's application for leave to appeal. On ground one, on behalf of the Appellant, Mr Chonta refers us to a number of authorities on costs. One among them is Order 62, Rule 2 (10) of the Supreme Rules, 1999 , which states that: "where a party successfully enforces a legal right and in no way misconducts himself then he is entitled to costs as of right." The other is Order 40, Rule 6 of the High Court Rules. He e submits that the Ruling on the Application to pay by instalments does not show the Appellant being blameworthy of anything. That in fact is to the contrary, the lower Court found the Respondent guilty of non-disclosure of material facts. But the Court proceeded to deny the Appellant the costs of the application. And no reason was advanced for that. JS In response, on ground one on behalf of the Respondent, Mr Sampa refers to Order 40, Fule 6 of the High Court Rules . He submits that the learned Judge in the Court below based his discretion on costs on the fact that as at the time of the Ruling of 29 th January 2009, the Respondent had liquidated a substantial part of Judgment debt. That it cannot, therefore, be contended that the learned Judge gave "no reason" whatsoever for directing that each party bears it's own costs. He adds that the learned trial Judge had stated that he had considered the merits of the application and decided that he was not going to ward costs to any party. We have considered ground one and the submission of Counsel. We have also examined the Ruling appealed against on costs. Order 40 Rule 6 of the High Court Rules, governs the award of costs. It provided as follows: "The costs of every matter and of each particular proceedings therein shall be in the discretion of the Court or a Judge and the Court or a Judge shall have full power to award and apportion costs in any manner it may or he may deem just and in the absence of an express direction by the Court or a Judge, costs shall abide by the event of the suit or proceeding." The issue here is the application by the Respondent to pay Judgment debt by instalments. The learned trial Judge found the application to have merit. And he granted it. When it came to costs J6 he used his discretion not to award costs to either party, for that particular applic: 1..tion. ~aving examined the wide discretion~ powers granted to a Judge on the award of costs, by Order 40, Rule 6, we find no fault in the way the learned Judge in the Court below, exercised his discretion, to award no costs . In our view, Order 40, rule 6 of the High Court Rules is exhaustive. We do not find it necessary to resort to the English Supreme Court Rules 1999. We uphold the decision of the learned High Court Judge. We find no merit in ground one and dismiss it. Ground two challenges the lower Court decision of 29 th January 2009, to allow the Respondent to pay the Judgment debt by 4 equal instalments. Given the time factor, we consider this issue long done and water under the Bridge. The Judgment debt has already been fully paid. It did not serve any purpose to pursue the issue on appeal. This ground has no merit at all. It is hereby dismissed. On ground three, Mr Chonta submits that the grant of the Order to pay in instalments was the subject of the attempt by the Appellant to correct what was manifestly an error. That is so because the lower Court fell into error in ordering that the debt be paid in four equal instalment, as interest had been awarded by the Judgment in default and the sum due was said balance on the principal of Kl33,000,000.00, plus interest therein. In support of the submission Counsel refers us to: J7 (a) Order 20, Rule 11 of the Supreme Court Rules 1999 . and (b)Hatter V Harris( 1l In latter case , Counsel quotes a passage which reads as follows : "Where an error has been committed it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable so to do, to correct the record in order to bring into harmony with the order which the Judge obviously meant to pronounce ." In response on ground three , Mr Sampa submits that the question relating to the alleged accidental error in the Ruling of 29th January 2007, was settled in the subsequent Ruling of 26th April, 2007, when the learned Judge ~tated as follows : "the ruling made on 29th January 2007 was settled which is the subject of this application is just interlocutory arising from that Default Judgment.... the fact that the ruling does not mention - interest and costs take nothing away from the main Judgment... . . It is not necessary for the Court to award to the Appellant interest and costs based on the Ruling since interest and costs had already been awarded on the main action for the avoidance of any doubt of this ruling, the effect is that the parties are bound by what the Default Judgment states on the question of interest and costs" We have considered ground three in relation to the Rulings of 29th January 2007 and that of 26 th April, 2007. Clerical errors and J8 accidental om1ss1ons are governed by Order 20, Rule 11 of the Supreme Court Rules cf _1999, in these words: "Cleric.1.l mistake~ in Judgment or Orders or errors arising therein from accidental slip or omission may at any time be corrected by the Court on Motion or Summons without an appeal." We do not accept the submission by Mr Chonta that the Court below fell in accidental error in ordering that the debt be paid in four instalments, as interest had been awarded by the Judgment in default. The learned Judge's decision was based on Order 36, Rule - 9 of the High Court Rules and the merit of the application. The Default Judgment awarded interest and costs to the Appellant. There was nothing the Judge's decision added or omitted by accident, slip or mistake . We have already dealt with costs in ground one. We do not wish to repeat ourselves. We find reference to RSC, Order 20, Rule 11, totally misplaced in this ground. There is no merit in ground three and it is hereby dismissed. Ground 4 r elates to the lower Court refusal to give the Appellant leave to appeal out of time, after a delay of 4 months. A e single Judge of this Court granted leave to the Appellant to appeal out of time. The issue of leave ended there . It should not have been pursued further, as ground in this appeal. We find ground 4 totally unnecessary and frivolous. We dismiss sit as such. On the totality of issue, we hold that this appeal has no merits. It is hereby dismissed. We award costs to the Respondent to be taxed in default of agreement. J9 • • • • • • • • • • • • • • • • • • • • • • • 0 . . . . . . . .. . . . . . . . . . . . L. P. Chibesakunda AG/ CHIEF JUSTICE ·~ ~ - = • • • • •• •••••• i,! • • • • • • •• • • • • • • • • • •• • • • • • • • •• • •• I. C . Mambilima DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE