Southern African Trade Ltd v Zambia Revenue Authority (Appeal 43 of 2012) [2017] ZMSC 288 (31 August 2017)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 43/2012 HOLDEN AT LUSAKA (Civil Jurisdiction) scz/8/097/2012 BETWEEN : SOUTHERN AFRICAN TRADE LIMITED APPLICANT AND ZAMBIA REVENUE AUTHORITY RESPONDENT CORAM: Mwanamwambwa D. C. J., Musonda and Mutuna, J. J. S., On 23rd January, 2017 and 31st August, 2017 For the Appellant: For the Respondent: Mr. M. J. Katolo, of Messrs Milner and Paul Legal Practitioners Mr. G. K. Mwamba appearing with Mr. M. J. Chitupila, In House Counsel JUDGMENT Mwanamwambwa D. C. J., delivered the Judgment of the Court. Cases Referred to: 1. Trinity Engineering (Pvt) Limited v Zambia National Commercial Bank Limited (1995-1997) ZR 189 2. Attorney General, Development Bank of Zambia v Gershom Moses Burton Mumba (2006) ZR 77 3. Trevor Limpic v Rachel Mawere and 2 Others, SCZ No. 35 of 2014 4. Zambia Telecommunications Company Limited v Muiwanda and Paul Ngandwe (2012) 1 ZR 405 5. Finsbury Investments Limited and 3 Others v Antonio Ventriglia and Manuel Ventrlglia (2013) 2 ZR 412 6. Ras Behari Lal v King Emperor (1933) ALL ER 726 7. Chibote Limited, Mazembe Tractor Company Limited, Minestone (Zambia) Limited, Minestone Estates Limited v Meridlen Biao Bank (Zambia) Limited (In Liquidation) (2003) ZR 76 8. Godfrey Miyanda v Attorney General (No. 2) (1985) ZR 243 - J2 - Legislation Referred to: (1) Rule 78 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia (2) Section 162 (3) of the Customs and Excise Act, Chapter 322 of the Laws of Zambia Works Referred to: 1. Black’s Law Dictionary The applicant brought this Notice of Motion pursuant to rule 78 of the Supreme Court Rules, requesting us to correct accidental slips, omissions and/or clerical errors allegedly contained in a Judgment we delivered in this matter on 30th April, 2014. We rendered that decision following the applicant’s appeal against findings of fact made by the High Court. The brief facts are that this matter was commenced by the applicant in the High Court after the respondent impounded its assorted liquor on 15th April, 2011, on suspicion that the liquor had been smuggled into Zambia without customs clearance. The applicant submitted some import documents to the respondent but the respondent refused to release the liquor on grounds that the import documents which the applicant submitted related to liquor which was imported in 2007 and 2008, when the seized liquor had manufacture dates of 2009 and 2010. As a result of this dispute, the applicant filed an Originating Summons seeking a declaration that the respondent’s decision to seize the -J3- liquor was unlawful. Its Originating Summons was supported by an affidavit. The High Court heard the parties and found that, on the evidence that was before it, the respondent’s decision to seize the liquor was lawful. The trial Judge found that the applicant failed to rebut the respondent’s contention that the liquor which was seized was manufactured between 2009 and 2010. He pointed out that all the import documents which the applicant submitted to the respondent related to imports which were manufactured prior to 2009. That there was not a single customs clearance for 2010 and 2011. He found that the applicant failed to prove to the respondent that customs duty had been paid for the seized liquor. He therefore took the view that the respondent was on firm ground when it maintained that the seized liquor was smuggled. The learned trial Judge held that the seizure was not unlawful and he dismissed the applicant’s action. On appeal to this Court, the applicant had advanced eight grounds of appeal which were all against the findings of the High Court. After evaluating the evidence on record, we held that all the findings by the trial Judge were supported by the evidence and refused to reverse the decision of the court below. We accordingly dismissed the applicant’s appeal. ~ J4 - One of the grounds we dismissed in the appeal, was that the trial Judge failed to make a finding on the applicant’s contention that the liquor which appeared on pages 75 to 77 of the record was not liable to seizure because it had been imported by another company called Elito Investments, more than five years prior to the seizure. Counsel for the applicant had argued that Elito Investments imported the said liquor five years prior to the seizure and sold them to the applicant when it wound up its business. He had argued that Section 162(3) of the Customs and Excise Act, prohibits the seizure of goods where more than five years had elapsed since the goods first became liable to seizure. The contention by counsel for the applicant was that the trial Judge failed to adjudicate on this particular claim and he had persuaded us to overturn the trial judge’s decision. We however dismissed this claim for two reasons. Firstly, we found that it was not clear when the goods on pages 72 to 74 of the record were manufactured, in order for us to believe that the import documents on pages 75 to 77 related to those goods. Secondly, we noted that the import documents on pages 75 to 76 indicated that the liquor was imported in June of 2006, and a period of five years from that date, was June, 2011. Further that the seizure was done on 15th April, 2011, which was before the expiry of the five years. As such, we found that the applicant had failed to prove its contention and we accordingly dismissed its claim for lack of merit. -J5- It is in respect of our pronouncements in dismissing this claim, that the applicant brought this motion alleging that our judgement contains accidental slips, omissions and/or clerical errors that need to be corrected. It is seeking an order that:- 1. The accidental slips, omissions and or clerical errors contained in the judgment of the Supreme Court dated 30th April, 2014 and delivered herein be corrected to the extent that the five years period within which the respondent could have lawfully seized the goods had expired on or around September, 2010 and January, 2011 for the goods exhibited in documents at pages 76 and 75 and 75A respectively. Its affidavit in support of the motion indicated that contrary to our decision that the liquor was imported in June of 2006, a close look at the import documents on page 75 shows that they are dated 05th January, 2006, while the document on page 76 is dated 6th September, 2005. It stated that a period of five years from the date of the documents on pages 75 and 75A was January, 2011, while a period of five years from the date of the document on page 76, was September, 2010. It indicated that this court made an accidental slip and/or error on the date of the documents on pages 75 to 76 wherein, instead of 5th January, 2006 and 6th September, 2005 respectively, this court accidentally referred to the date of all the documents as June, 2006; thereby coming to the conclusion that five years from that date was June, 2011, when it was supposed to be September, 2010 for the document on page 76, and January, 2011 for the documents on pages 75 and 75A, respectively. That, if this court - J6 - had not made the alleged accidental slip or error on the date of the documents, it could have arrived at a different decision as to the expiry of the five year period and its final decision would have been different. That although this court held that it was not clear when the goods were manufactured in order for the court to believe that the import documents on pages 75 to 77 related to the goods on pages 72 to 74, the respondent indicated in its affidavit in opposition that it did not have in its custody Brandy manufactured in 2004 but 2005. That this court made an omission in failing to consider this evidence and arrived at the decision that there was no evidence to prove when the said goods were manufactured when the respondent had admitted in its affidavit that the only liquor it had in its custody was manufactured in 2005. The applicant’s motion was opposed by the respondent. Its affidavit in opposition stated that contrary to the assertions by the applicant, this court adequately dealt with the issue of documents. It stated that the applicant’s motion ignored the fact that this court had indicated that it was not clear when the goods were manufactured for the court to believe that the documents on pages 75 to 76 related to the goods on pages 72 to 74. That contrary to the slip rule under which the applicant purported to proceed, this motion was an attempt by the applicant to invite this court to review the substance of its -J7- judgment. That the issues which the applicant had raised had nothing to do with accidental slips but had everything to do with the ratio decidendi and this motion fell out of the ambit of the slip rule. In support of the motion, counsel for the applicant filed four sets of written heads of argument while counsel for the respondent filed two sets of written heads of argument in opposition. Counsel for both parties relied on their respective heads of arguments at the hearing of this Motion, which they augmented with oral submissions. On behalf of the applicant, Mr. Katolo drew our attention to the contents of the affidavit in support of the motion as well as Rule 78 of the Supreme Court Rules. He submitted that the slip rule is meant for the court to correct clerical mistakes or errors in a judgment arising from accidental slips or omissions. For this submission, counsel referred us to the case of Trinity Engineering (PVT) Ltd v Zambia National Commercial Bank Limitedo). He further cited the case of Attorney General, Development Bank of Zambia v Gershom Moses Burton Mumba<2>, in which this court adopted the definition of a ‘clerical error’ from Black’s Law Dictionary, where it is defined as an error resulting from a mistake or inadvertence, especially in writing or copying something on the record and not from judicial reasoning or determination. -J8- He submitted that this court has jurisdiction to correct the error it made in relation to the date of the documents. He stated that the documents on pages 75 to 75A were clearly dated 05th January, 2006, while the document on page 76 was dated 6th September, 2005. He argued that the date of June, 2006 was included in the Judgment in error or oversight on the part of the court. That the correct finding should have been that the five year period within which the liquor was liable to seizure expired in September, 2010, and January, 2011 respectively. That when the applicant’s liquor was seized on 5th April, 2011, the five year period had already expired and the liquor in issue was immune from seizure. Further that since the respondent admitted that it only had liquor manufactured in 2005, the liquor in issue was immune from seizure on the day it was seized on 15th April, 2011. Counsel submitted that this court has unfettered jurisdiction in appropriate cases such as this one, to rescind or vary its own decision or to expunge a portion of a judgment that contains an error, oversight or omission so that proper effect can be given to the judgment. For this submission, he referred us to the following authorities: 1. Trevor Limpic v Rachel Mawere and 2 others!3) 2. Zambia Telecommunications Company Ltd v Mulwando and Paul Ngandwew 3. Finsbury Investments Ltd and 3 others v Antonio Ventriglia and Manuel Ventriglia!5) - J9 - Mr. Katolo submitted that finality is a good thing, but justice is better. For this submission, he cited the case of Ras Behari Lal v King Emperor*6). He therefore urged us to re-open this case and correct the alleged errors and/or omission contained in our judgment. On behalf of the respondent, Mr. Mwamba and Mr. Chitupila opposed this motion. They submitted that Rule 78 of the Supreme Court Rules only makes provision for the correction of clerical errors, omissions and accidental slips and it cannot be used to change findings of this court or indeed the substance of a judgment. They argued that the slip rule cannot be used to change a judgement which a party thinks to be wrong. Counsel cited the case of Chibote Limited, Mazembe Tractor Company Ltd, Minestone (Zambia) Ltd, Minestone Estates Ltd v Meridian Biao (Zambia) Ltd (in liquidation) (7) where this court held that an appeal determined by the Supreme Court will only be reopened where a party, through no fault of its own, has been subjected to an unfair procedure and a judgment will not be varied or rescinded merely because a decision is subsequently thought to be wrong. They also referred us to the case of Zambia Telecommunications Company Ltd v Mulwanda and Ngandwe*4), where we held that the court has no power under any application in the action to alter or vary a judgment after it has been entered, except so far as it is necessary to correct errors in expressing the intention of the court. It was counsel’s -J10- submission that that the slip rule cannot be invoked in this case because this court was clear in expressing its intention that the applicant failed to prove its contention. They argued that the judgement in this matter does not have any accidental slips, omissions and/or clerical errors on which this court can grant the motion. They submitted that the applicant was essentially requesting this court to review its reasoning in the judgment, something which was beyond the scope of the slip rule. They contended that the applicant brought this motion to disguise its real intention, which was to re-open this matter so that this court can reverse its findings and the decision can be in the applicant’s favour. Counsel submitted that it was clear that the applicant felt that the judgment was wrong, hence the applicant was requesting this court to substantially alter its judgment in order to have a favourable outcome for itself. They cited the case of Finsbury Investment Limited and Others v Antonio Ventriglia and another*5), where we held that the Supreme Court’s power to vary its Judgment can only be exercised in exceptional circumstances and that this power would not be exercised where a dissatisfied party sought to obtain a more favourable outcome. Mr. Mwamba and Mr. Chitupila submitted that in any event, the documents which the applicant was relying on in seeking to have this court vary its judgment, do not help the applicant in any way. According to counsel, this is because this Court found -Jll- that the import documents did not show when the goods were manufactured for us to believe that the documents related to the goods in issue. It was counsel’s submission that changing the date as suggested by the applicant will in no way affect this Court’s decision and this motion should be dismissed for lack of merit. In response’s to the respondent’s contention that even though the dates in the judgment are corrected there would be no change in our decision, Mr. Katolo submitted that once the dates are corrected, this court will come to the inescapable conclusion that the goods in issue had attained immunity from seizure after the expiry of five years from the date of importation. He argued that the respondent was prohibited from seizing the applicant’s goods that had acquired statutory immunity from seizure by section 162 of the Customs and Excise Act. Counsel submitted that section 162 of the Customs and Excise Act is absolute once it is established that a five year period had elapsed since the goods were imported into Zambia. He argued that this motion was not intended to attack findings of fact or to challenge the evidence but to highlight the clerical errors and accidental slips. He submitted that this is an appropriate case for this court to invoke its jurisdiction to correct the clerical errors and accidental slip in its judgment to reflect the correct dates as they appear on the record. -J12- We anxiously considered the issues raised in this motion. At the outset, we wish to indicate that this Court has powers to correct clerical errors in order to express its manifest intention. This is what we said in the case of Trinity Engineering (PVT) Limited v Zambia National Commercial Bank Limited!1) where we held that: “There can be no doubt that this court has powers on motion to correct any accidental slip or omission In expressing its manifest intention.” In this motion before us, the main complaint is that in our judgment dated 30th April, 2014, we wrongly captured the dates from the import documents on pages 75 to 76 of the record and as a result, we arrived at a wrong conclusion that the liquor on pages 72 to 74 was liable to seizure. It was argued that section 162(3) of the Customs and Excise Act prohibits the seizure of goods where more than five years has elapsed since the goods first became liable to seizure. That if we had correctly captured the dates from the import documents, we would have arrived at the conclusion that the liquor on pages 72 to 74 was not liable to seizure because it was imported by Elito Investments Limited five years prior to the seizure. We took time to scrutinize the judgment complained of, as well as the import documents on pages 75 to 76 of the record of appeal. We noted in our Judgment that the import documents on pages 75 to 77 showed that the liquor was imported in June, 2006. We also stated that five years from June, 2006, was June, -J13- 2006. Further that the seizure was done on 15th April, 2011, which was before the expiry date. As we have already indicated above, this was one of the reasons why we dismissed the applicant’s claim that the liquor on pages 72 to 74 of the record was not liable to seizure because it was imported five years prior to the seizure. However, a perusal of the record shows that Elito Investments’ import documents on pages 75 and 75A are dated 05th January, 2006, while its import document on page 76 is dated 6th September, 2005. This means that Elito Investments imported the liquor described in the said import documents on 05th January, 2006 and 06th September, 2005, respectively. Quite clearly, there was a clerical error on our part in capturing these dates. Accordingly, we hereby correct this clerical error so as to reflect the correct dates. It follows that five years from the dates when Elito Investments imported the liquor described the said import documents was 05th January, 2011 and 6th September, 2010, respectively. Since the seizure took place on 15th April, 2011, it means that Elito Investments imported its liquor five years prior to the seizure. It should be noted that although we had partly dismissed the applicant’s contention based on the erroneous conclusion we made that the seizure was done before the expiry of the five years, this was not the only reason. The other reason we dismissed the applicant’s claim, was that it was not clear from -J 14- the documents on pages 72 to 74 when the liquor was manufactured in order for us to believe that the import documents on pages 75 to 76 related to the same liquor. While Elito Investments may have imported the liquor described in the import documents on pages 75 to 76 five years prior to the seizure, there was no convincing evidence to show that the said import documents were for the liquor shown on pages 72 to 74 of the record. We noted that the documents on pages 72 to 74 simply have pictures of bottles of Gold Napoleon Brandy, Chatour Spirit Napoleon and Caton Spirit Napoleon. We did not see any concrete connection between the liquor on the documents on pages 72 to 74 of the record and Elito Investments’ import documents on pages 75 to 76. The only feeble link which Mr. Katolo attempted to establish, was that the respondent had indicated in its affidavit in opposition in the Court below, that the only liquor it had in its custody was manufactured in 2005. In our considered view, this evidence alone was not enough. The Court below found, on the totality of the evidence, that the seized liquor was manufactured between 2009 and 2010. The learned trial Judge found that the applicant failed to rebut the respondent’s contention that the seized liquor was manufactured between 2009 and 2010. The trial Judge had the advantage of receiving the evidence first hand and we cannot as an appellate Court, interfere with this finding because it is supported by the evidence on record. -JI 5- We wish to emphasize that our manifest intention in our Judgment was not to disturb the findings of fact by the trial Judge because the applicant failed to prove his claim. It would however seem that the applicant wanted to capitalize on the clerical error which we have corrected in this motion to obtain a result that is more acceptable and favourable to it. This we cannot do because it is outside the ambit of the slip rule. In our previous decisions, we have declined to grant motions like this. See: 1. Godfrey Miyanda v Attorney-General (No. 2) (1985) ZR 243(8) 2. Chibote Limited, Mazembe Tractor Company Limited, Minestone (Zambia) Limited, Minestone Estates Limited v Meridien Biao Bank (Zambia) Limited (In Liquidation)*7) As we understand it, the slip rule is limited to the correction of clerical errors or mistakes arising out of accidental slips or omissions. The rule is meant to give effect to the Court’s manifest intentions at the time of delivering the judgment. It cannot be used to move the Court purely to change its verdict or so that it can have second thoughts on a matter it already decided. In conclusion, we wish to make it plain that the clerical error we have corrected in this motion does not affect the outcome of -J16- our Judgment in this matter. The said corrections are inconsequential to our ultimate decision. All in all, this motion lacks merit. We hereby dismiss it. We award costs to the Respondent, to be taxed in default.