Clawzy Trading (Pvt) Ltd v Jonasi Chitsa and Others

This application arose from a trial judgment delivered by CHIRAWU-MUGOMBA J on 10 November 2021 under HC 8317/10 (HH 627/21) in favour of the first and second respondents, which set aside two deeds of transfer and ordered the Registrar of Deeds to revive an earlier deed in favour of the respondents. The trial judge directed both parties to file closing submissions by 27 October 2021. The applicant (second defendant in the trial) filed its closing submissions on 26 October 2021, one day before the deadline. However, in the judgment delivered on 10 November 2021, the trial judge stated that the second defendant had not filed its closing submissions. The applicant brought this application for rescission of the judgment on the grounds that this constituted a patent error, arguing that the judgment was made without considering its submissions, which presented critical issues including estoppel, the need for rectification of agreements, and narrowed issues from the amended joint PTC minute.

• Whether the failure to consider timeously filed closing submissions constitutes a patent error warranting rescission under Rule 29(1)(b) of the High Court Rules, 2021
• Whether rescission is the appropriate remedy as opposed to correction or variation of the judgment
• Whether the non-consideration of closing submissions breaches the audi alterem partem principle and constitutes an irregularity
• The scope and application of Rule 29(1)(b) of the High Court Rules, 2021 in relation to patent errors

The application for rescission of the judgment under HC 8317/10 delivered on 10 November 2021 was dismissed. There was no order as to costs.

The failure by a judge's assistant to place timeously filed closing submissions before a trial judge before preparation of judgment does not constitute a patent error or omission within the meaning of Rule 29(1)(b) of the High Court Rules, 2021 warranting rescission of the judgment. For rescission under Rule 29(1)(b), an applicant must prove not only that there is a patent error but also that the error impacted on the judge's intention such that the resultant judgment does not reflect the judge's intention. Closing submissions are instruments of persuasion and not evidence; a judgment can be written and will be legitimate and enforceable with or without closing submissions. The error complained of must be in the judgment itself (affecting its reasoning or conclusions), not merely an administrative error recorded in the judgment.

The court noted that there is a drought of precedent dealing with Rule 29(1)(b) applications for rescission in circumstances where a judgment was written without considering timely filed closing submissions by a party after a full trial. The court observed that the applicant had two options upon receipt of the judgment: to apply for rescission under Rule 29(1)(b) or to appeal, noting that the Supreme Court refuses to be a court of first instance and will insist the High Court comment on issues brought on appeal. The court also made general observations about the nature and purpose of closing submissions in trials, noting they are a medium through which a party argues how and why facts and law support a decision in its favour, and are vehicles of persuasion. The court distinguished this case from Nyahondo Farm and others v Birketoft on the basis that non-filing of closing submissions does not change the status of a matter in the way that non-filing of heads of argument in an application matter does.

This case clarifies the scope and application of Rule 29(1)(b) of the High Court Rules, 2021 regarding rescission of judgments on the basis of patent errors. It establishes important principles regarding: (1) the distinction between errors warranting correction/variation versus rescission; (2) the requirement that for rescission under Rule 29(1)(b), an applicant must prove the error impacted the judge's intention such that the judgment does not reflect what the judge intended; (3) the nature and role of closing submissions in civil trials - that they are instruments of persuasion and not evidence, and that judgments can legitimately be delivered without them; (4) the limited circumstances in which a court can revisit a judgment in which it is otherwise functus officio. The case also addresses the practical issue of administrative errors in the filing system and their legal consequences.