Ng'ona Mwelwa Chibesakunda v Attorney General (APPEAL NO. 101/2013) [2013] ZMSC 83 (10 October 2013)

THE SUPREME COURT FOR ZAMBIA APPEAL NO. 101/2013 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: NG'ONA MWELWA CHIBESAKUNDA APPELLANT AND THE ATTORNEY GENERAL RESPONDENT CORAM: Mwanamwambwa, Kaoma and Hamaundu J. J. S. On the 10th day of October and 10th October, 2013. For the Appellant: Mr. K. Chenda of Simeza Sangwa and Associates. For the Respondent: Mrs. S. Wenjelani, Principal State Advocate. JUD6MENT - · Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. Jefford V Gee ( 1970) ALL ER 1202. 2. NBZ V Shanzi (1977) Z. R. 397. 3. Riches v Westminster Bank Ltd (1947), 1 ALL ER 469. Legislation referred to: J2 1. Order 20, Rule 11 of the English Supreme Court Rules, 1999. 2. Order 36 Rule 8 of the High Court Rules. This is an appeal against the Judgment of the High Court dated 4 th October, 2012. By that Judgment the High Court entered Judgment for the Appellant 1n the sum of K347,955,662, as terminal benefits. It then awarded him interests, at the current Bank of Zambia rate, from the date of Judgment to the date of payment. No interest was awarded for the period before Judgment. On 3rd December 2012, the Appellant applied by chamber summons, to the learned trial Judge, for correction of the Judgment, with regard to interest. He sought an Order for an additional award of interest at the average of the short term deposit-rate per annum, prevailing, from the date of the Writ to the date of the Judgment. The application was made under the accidental Slip Rule, pursuant to Order 20, Rule 11 of the English Supreme Court Rules, 1999. On 20 th December 2012, the learned trial Judge ruled as follows: "Having heard the parties, I still feel that if I award interest from the date of writ which is 2003, I might not do Justice to the J3 Defendant as the Plaintiff will walk away with a huge amount of money in addition to what I have already awarded him. So I do not think this is a matter for the slip rule and accordingly reject the Plaintiffs application" The Appellant now appeals on one ground of appeal. It states that the Court below erred both in law and fact when it omitted to award interest from the date of Cause of action to the date of Judgment. Counsel for the Appellant submits that the trial Court misdirected itself in law when it failed to heed Order 36 Rule 8 of the High Court Rules. He points out that the said Rule provides, in mandatory terms, for an award of interest from the date of the Cause of action or the writ, to the date of Judgment. Counsel further referred us to Section 4 of the Law Reform (Miscellaneous Provisions) Act, Cap 74 of the Law of Zambia and Jefford v Gee(l). On behalf of the Respondent, Mrs Wenjelani has left it to us to interpret Order 36, Rule 8. And on costs, she urges us to order that each party bears it's own costs for this appeal, because the fault was that of the Court. We have examined Order 36, Rule 8 of the High Court Rules and have looked at Jefford VG Gee(l). Order 36, Rule 8 provides as follows: J4 "Where a judgment or order is for a sum of money interest shall be paid thereon at the average of the short-term deposit-date per annum prevailing from the cause of action or writ as the court or Judge may direct to the date of judgment" Jefford v Gee( 1l holds that Interest should be awarded to a Plaintiff not as compensation, but for being kept out of money which ought to have been paid to him. That case was approved and applied in UBZ v Shanzi(2l. Riches v Westminster Bank Ltd(3 ) to the same effect. We agree with Counsel for the Appellant that the learned trial Judge erred in Law, in not awarding interest to the Appellant, for the period before Judgment. Order 38 , Rule 8 provides , 1n mandatory terms , for an award of interest, to a successful litigant. The reason for awarding interest is as stated in Jefford v Gee, as set out above . The Appellant was unjustifiably kept out of the money that was due to him. On the authority of Order 36, Rule 8 and the Jefford case, he is entitled, as a matter of right, to interest on the Judgment sum for the period before judgment. The learned trial Judge took the view that awarding interest to the Appellant, for the period before Judgment, would cost the Respondent too much money and would not do justice to the Respondent. In our view, the reason for refusal is not supported by law. The Respondent was in the wrong, by depriving the Appellant of the money he was entitled to , over the period. The Appellant suffered injustice for such deprivation. Justice demands that the Respondent pays for \ ' .. JS the injustice, unjustifiably inflicted on the Appellant, over the period in question. For the foregoing reasons, we allow the appeal. We award the Appellant interest, at the average of the short-term deposit-rate per annum, prevailing, from the date of the writ, to the date of Judgment. This is pursuant to Order 36, Rule 8 of the High Court Rules. This is in addition to the post Judgment interest, awarded by the learned trial Judge. We order each party bears own costs of this appeal. • SUPREME COURT JUDGE .=::;::;-.. . • -~:::J~.--...... ~ : ...... . R. M. C. KAOMA AG/SUPREME COURT JUDGE ~ j ................... .. . ~~ ---····· ·········· ·· E. M. HAMAUNDU AG/SUPREME COURT JUDGE