Hotel owners refused another ‘bite at the cherry’ by Zambia’s supreme court

12 February 2021 · Carmel Rickard

The supreme court of Zambia, involved in a dispute about damages following a bizarre defamation, have refused to consider an application brought under the slip rule. The court said the rule was intended to fix minor problems like dates, not allow litigants with a long list of complaints about the original judgment to have a ‘second bite at the cherry’ aimed at attempting to secure a more favourable outcome. The initial dispute was over allegations, carried in the local media, that a prominent political figure had said a hotel should be closed as it was being 'run as a brothel'.

Read judgment:

The first thing to notice about this judgment is the way that it begins. It is not often that a court will point out that its decision has been sadly delayed, and offer a reason.

Here the judges of Zambia’s supreme court do not try to hide the facts, saying, in effect, we are late, very late, and we’re sorry. The actual words were these: ‘We sincerely regret the long delay in rendering this ruling. When we heard the motion on 15^th October 2014, we sat with the Hon Justice G S Phiri who had in fact been assigned to deliver this ruling on behalf of the court. He proceeded into retirement before the ruling was delivered. It is now one by majority.’

Apart from judicial contrition, what was this case about? – In 2005, The Times of Zambia carried an article attributed to prominent political figure, George Chilumanda, which ‘annoyed the respondents considerably’.

Brothel

In the article, the authorities were urged to shut the Nkana Hotel, bought by the respondents including Stillianos Koukoudis, because, in the view of Chilumanda, ‘it was operating as a brothel’.

The respondents then launched a defamation action. It was undefended and a default judgment was given. In due course damages were assessed to be K5billion with an additional K160million as costs. The award was followed by ‘determined efforts’ on both sides. On one side, the respondents wanted the judgment enforced. On the other side, the appellants wanted a stay of execution and for the judgment to be overturned.

The appellants had some success and the costs assessment was ultimately set aside. Then started efforts to reach a settlement. Lawyers for the respondent said they would settle for K70 million as damages and a further K100 million as costs. The appellants’ lawyers immediately accepted this proposal and the sum was duly tendered.

Impact

At the same time there were developments in the firm of attorneys representing the respondents that were to have a marked impact on affairs. The secretary of the Legal Practitioners’ Committee (Copperbelt) wrote to inform the profession at large that Dr Josias Soko of Josias and partners had been suspended and, since the firm was a solo practice, ‘it was to be closed’ immediately.

At this stage further claims for damages were made on behalf of the respondents, and the deputy registrar made another assessment which was to be paid with interest.

The Times and Chilumanda objected strongly: as they had already paid the agreed amount, they claimed the deputy registrar was wrong to hold that there had not been a settlement. There was also ‘clear evidence’ that their payment had been received by the respondents’ advocates. Further, it was a ‘misdirection’ for the deputy registrar to hold that their payment to the respondents’ advocates did not amount to a settlement. And, in any case, the award by the deputy registrar was excessive and unreasonable.

'Serious errors'

All of those issues were resolved by the supreme court in 2013 when the judges held that the ex-curia agreement between the parties was binding, quashed the deputy registrar’s award and found that the agreed sum had already been paid by the appellants to the respondents.

Then, two months later, the respondents tried again. Now they asked for a ‘rectification of clerical errors, omissions and mistakes’ in the original supreme court judges. They claimed the judgment was ‘afflicted with serious errors, mistakes and omissions’ that the court should fix.

Among this long list of defects, for example, the respondents complained about ‘the title of the appeal both on the cover and inside’. They also said that there was legally ‘no way’ that the appellants could have been bound by a settlement that involved payment to advocates who were at the time ‘suspended from practising law’.

'Slip rule'

Citing the ‘slip rule’, the respondents said the court had to reconsider all the complaints they had listed.

The supreme court however, was unimpressed. ‘In our view, the respondents are simply dissatisfied with our judgment’, and want it changed ‘so as to bring about a result more acceptable or favourable to them.’

‘They simply want another bite of the cherry’.

‘We are in no doubt whatsoever that the motion is in essence a request for a review of our judgment cloaked in the guise of a motion under the slip rule. We refuse to be dragged into the pitfall of reviewing our judgment…. Our judgments are final not because we are infallible but in order to avoid a spectre of repeated efforts at re-litigation.’

Carmel Rickard

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