Musa v Itowala (SCZ Appeal 40 of 1993) [1998] ZMSC 101 (30 October 1998)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE AND LUSAKA SCZ APPEAL NO. 40/1993 Civile YOUSUF MUSA AND A. S. ITOWALA APPELLANT RESPONDENT Coram: Sakala, ADCJ, Chaila and Chirwa JJS. 12th August and 30th October, 1998. For the Applicant / Respondent Mr. E. B. Mwansa of EBM Chambers. For the Respondent / Appellant, Mr. M. Sikatana of Veritas Chambers. Sakala ADCJ, delivered the judgment of the court. JUDGMENT On the 12th August, 1998 when we heard this motion, we dismissed it with costs. We indicated then that we shall give our reasons later in a considered judgment. We now give those reasons. Before delving into the reasons for our judgment, we propose to highlight the facts leading to the motion. On 31st August, 1993, we delivered a judgment in an appeal in which Yousuf Musa was the appellant represented by Mr. Sikatana, Mr. Itowala was the respondent represented by Mr. E. B. Mwansa. The representation is the same even in this motion. The appeal was from a judgment of the High Court granting a Caveat in favour of Mr. Itowala on property No. 1069, Lusaka. The appeal was allowed. The judgment of the High Court was set aside resulting in the removal of the caveat granted by the High Court. The respondent, Mr. Itowala, applied, by way of notice of motion, for an order that our judgment of 31st August 1993 be reversed/cancelled or set aside and that the High Court judgment dated 1st June 1992 be maintained on the following grounds:- (a) (b) That none of the parties in the lower court appealed against the High Court Judgment dated 1st June, 1992. That the appellant was never a party to the proceedings in the lower court and as such he could not be a party to the proceedings at the Supreme Court level. The motion was supported by an affidavit sworn by counsel for the applicant/respondent. This affidavit merely recited the grounds contained in the notice of motion. There was no affidavit in reply. At the hearing of the motion Mr. Sikatana raised a preliminary issue relating to the jurisdiction of this court to review its own judgment, particularly at this late stage. He urged the court to dismiss this application on the ground of being frivolous, vexatious and abuse of process. On the other hand Mr. Mwansa on behalf of the applicant/respondent contended that while it is very rare that this court is called upon to review its own judgment, it has power under rule 78 to do so. According to counsel the name of Yousuf Musa should not have appeared in the proceedings before the Supreme Court because he was not a party to the proceedings before the High Court. He urged the court to correct this error by removing the appellant as a party, the effect of which would be that no party to the proceedings before the High Court had appealed to the Supreme Court. According to Mr. Mwansa, if the court agreed with him, then the only judgment on record would be that of the High Court which is in favour of the respondent. We have very carefully considered the submissions before us. On the facts as can be ascertained from the court records we are reluctant to suggest that Mr. Mwansa deliberately wanted to mislead the court or ignore the correct facts of the case. While it is correct that Yousuf Musa was not a party to the proceedings before the High Court, the facts on record as pointed out by Mr. Sikatana which must have been within the knowledge of Mr. Mwansa, are that Yousuf Musa had applied to this court for leave to appeal against the judgment of the High Court as a person who should have been made a party to the proceedings in the court below. The application for leave was made exparte before a single judge of this court who granted the order. After the order was granted a record of appeal which included the order was served on counsel. Mr. Sikatana submitted that all along the respondent through its counsel, Mr Mwansa was aware that the appellant was made a party to the proceedings on appeal. On appeal Mr. Sikatana argued the appeal for the appellant while Mr. Mwansa argued the case for the respondent. During the arguments the issue of parties was never raised. Indeed it has come to us with a profound sense of shock that almost five years after our judgment, counsel should come before us by way of a notice of motion asking us to reverse our judgment, cancel it, or set it aside and reinstate the High Court Judgment on the grounds that none of the parties in the lower court appealed against the High Court Judgment and that the appellant was never a party to the proceedings in the lower court. We agree with Mr. Sikatana that this application is frivolous, vexatious and abuse of process of the court. In our view this should have been a proper case in which to order costs against counsel personally. But we refrain from so doing although the case bordered on deliberately wanting to mislead the court. There was no room for arguments based on the slip rule on the clear known facts of this case. It is for the foregoing reasons that we dismissed the motion with costs. E. L. Sakala, ACTING DEPUTY CHIEF JUSTICE. M. S. Chaila, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.