John Chibesa v Zambia Railways Limited (APPEAL NO. 171/2002) [2006] ZMSC 53 (7 June 2006)

IN THE SUPREME COURT OF ZAMBIA - AP]f'EAL NO. 171 / 2002 HOLDEN AT NDOLA [CIVIL APPELLANT JURISDICTION] BETWEEN: JOHN CHIBESA APPLICANT AND ZAMBIA RAIL:W AYS LIMITED RESPONDENT Coram: Lewanika, DCJ, Mambilima and Chitengi JJS, on the 2nd September 2004, and 7th June, 2006. For the Applicant Mr. J. Soko, of Josia Soko & Partners. For the Respondent No Appearance RULING MAMBILIMA JS, Delivered the Ruling of the Court. We would like to apologise for the late delivery of this Ruling. The Applicant, John Chibesa has taken out a Motion under Rule 78 of the Rules of the Supreme Court seeking an Order that our Judgment which we delivered in his appeal on 14th January 2004 be corrected for omissions, incidental slips and errors. He is also praying for costs to this ap'plication·. In his affidavit in support of the Motion, the Applicant deposed inter alia that our Judgment which we delivered on 14th January 2004 contained errors arising from an incidental slip and omission which required our attention and rectification. He stated further that in his claim filed in the Industrial Relations Court he had clearly stated: "No loss accommodation presently occupied". He deposed that by this statement, he did not only mean to occupy the house until the disposal of the court proceedings, but to purchase the same by virtue of the Presidential directive made in 1996 when he was still in employment and occupying House No. 50 Mupundu Road, Ndola. He argued that having been dismissed from employment in late 1997, he was thus entitled to purchase the house in question. He craved the indulgence of this Court to rectify the Judgment as requested. Submitting in support of the Applicant, Dr. Soko relied entirely on the affidavit in support of the motion. He stated further that the question of the house was prayed for in the Court below and did not arise as an after thought. We have considered the motion before us and we have also looked at the contents of our Judgment delivered on 14th January 2004. On the issue of the Applicant's prayer that he should be allowed to buy the house as a sitting tenant, we stated thus: , ' • j " With regard to the Appellant's spirited arguments that he should be allowed to buy the house as a sitting tenant, we have perused the pleadings which were before the Court below, especially his compliant which appears on page 60 of the record. There was no prayer that he should be sold a house as a sitting tenant. The relief sought was that he should not lose his accommodation which was presently occupying. As an Appellate Court, we can only go by the record of appeal. It is clear from the evidence on record that the Appellant occupied the house as an incidence of his employment. The Court below was therefore on firm ground to find that after losing the said employment, the Appellant was not entitled to accommodation. The documents to which the Appellant has referred us were prepared after the Judgment of the, lower Court ~nd that ev\dence was not before the lower Court. This ground of appeal cannot also succeed". From this extract, it is clear that we were alive to the prayer by the Applicant that he should be allowed to buy the house as sitting tenant and adjudged against him. Clearly therefore, the question of an error or an accidental slip does not arise. It is clear to us that the Applicant is using Rule 78 of the Supreme Court Rules to have a second bite at the cherry. We find absolutely no merit in the motion and it is dismissed. . . As the Respondent did not appear or file an affidavit 111 opposition, we make no Order as to costs. D. M. Lewanika DEPUTY CHIEF JUSTICE C ' I. C. Mamilirna SUPREME COURT JUDGE ---- ·--I ~h\)v; _\.- ~--------------. P. ChiLih~i SUPREME COURT JUDGE