Jurisdiction of the Supreme Court to clarify its own judgments.

Brief facts

The appellants approached the Supreme Court seeking to understand the orders that the court made in their appeal and seeking to file contempt proceedings. The initial judgment of the Supreme Court had referred the matter back to the High Court where the Supreme Court held that the High Court had the jurisdiction to determine contempt proceedings and to decide on whether orders of status quo would be granted. The appellant contended that there was a point of misunderstanding the finding of contempt and the consequences. 

Issues

1. Whether the Supreme Court had supervisory jurisdiction over the Court of Appeal and the High Court. 
2. What were the circumstances under which the Supreme Court could review its own decisions?
3. Whether the Supreme Court had the jurisdiction to interpret its own judgments to parties who misunderstood the judgment.
4. Whether the Supreme Court could make substantive orders in a matter that it had referred back to the High Court for determination.
5. Whether the action of striking out submissions for late filing was equivalent to striking out a party from the suit.
6. Whether third parties who were not parties to a suit could be joined in the suit in contempt proceedings as contemnors.

Held

1. The parties either misunderstood the Supreme Courts judgment rendered on February 17, 2023 or were outrightly mischievous. The Supreme Court having authoritatively made its decision, it expected that all parties would act in accordance with what the Supreme Court meant. It was not for the Supreme Court to interpret its decisions or those of other courts to the different litigants. With the issuance of the judgment, the Supreme Court became functus officio. The only narrow opportunity for the courts jurisdiction was by way of review vide an application as permitted by the Supreme Court Act and Rules.
2. To the extent that there was need to avert protracted legal battles, more so when the substantive dispute was pending at the High Court, the Supreme Court exercised its inherent powers to determine whether there was any matter to be clarified, and if so, to what extent.
3. Part of the grounds of appeal was that the application for contempt of the status quo orders was undetermined by the Court of Appeal. It was the contempt application that the Supreme Court determined. The Supreme Court appreciated that it was a factual contest and that no responses were filed or considered by the Court of Appeal, as the application was neither heard nor determined, the court opting, instead, to deal with the merits of the appeal. The Supreme Court was limited to what was before it, cautioning itself that the main dispute among the parties was still live at the High Court. There was also a contempt application pending before the High Court in which responses had been filed.
4. It was on the basis of the importance of contempt proceedings in the administration of justice that the Supreme Court remitted the matter back to the High Court. The High Court was seized of the matter and could contemporaneously address the contempt application on merit.
5. The High Court had to, not only establish what the status quo was but to also punish for contempt, and expect the same to be purged before the contemnors could be allowed audience, in the event that the High Court was satisfied of the nature and extent of the contempt. The final orders issued reminisced the Supreme Courts deliberate intention to allow the High Court the liberty to address any disobedience, without falling into the same error as the Court of Appeal, of procrastinating such a serious matter of disobedience of court orders. There was no reason to infringe, at the instant stage, on the High Courts jurisdiction to competently address the issues before it.
6. In Application No E005 of 2023, the appellant was a party having joined before the High Court as an interested party. In Petition No 15 of 2020, the appellant was a substantive respondent who had participated in the appeal, save for late filing of submissions which prompted the Supreme Court striking their submissions out of the record. The Supreme Court did not strike out the appellant as a party to the appeal. It was within its liberties to invoke the Supreme Courts jurisdiction to seek review. However, the appellant instead invoked sections 3, 21 (2) and 24 (1) of the Supreme Court Act and rule 28 (5) of the Supreme Court Rules which did not readily come to its aid.
7. Section 3 of the Supreme Court Act set out the objective of the court and could not, on its own, form the basis of invoking the Supreme Courts jurisdiction. The courts jurisdiction was operationalized by a substantive provision. Section 21(2) of the Supreme Court Act granted general powers in any proceedings to make any ancillary or interlocutory orders, including any orders as to costs that it thought fit to award. Section 24 of the Supreme Court Act on the other hand dealt with interlocutory directions. It was surprising that the applicant had not invoked the appropriate statutory provisions in seeking to review the Supreme Courts decision.
8. It mattered not which party filed the application for review. It was to be considered on its merits once filed by a party to the decision sought to be reviewed.
9. The applicants were not parties to Petition No 15 of 2020 or the resulting judgment sought to be reviewed. The word party as used in section 21A of the Supreme Court Act, for purposes of an appeal to the Supreme Court presupposed one whose locus standi was not in issue, either as an appellant, respondent, interested party or amicus curiae. The standing of the three applicants, appearing individually, regardless of their status in any of the corporate litigants in the proceedings before the court was something that could only be addressed in a substantive suit and not through an application. It mattered not that they considered themselves personally affected by the decision or that they were principals of any of the corporate parties before the court.
10. Application No E012 of 2023 by the respondent was also under challenge. They were entitled to approach the court, having been parties to the appeal that resulted in the judgment that sought contempt of court orders. However, the extent of what they could seek before the court under the circumstances could only be addressed when dealing with the specific prayers sought in their application.
11. The matter in Petition No 15 of 2020 had a total of eight litigants. The instant application had dropped two of the litigants by unilaterally relegating them to interested parties and at the same time expanded the respondents to twelve by introducing 7 persons as respondents/contemnors. It had gone further to introduce twenty-five individuals who were termed as contemnors. The restructuring of litigants, stood on all fours with what the respondent complained of against Application No E006 of 2023. Introducing parties to the Supreme Court at the first instance in such an application was untenable in law.
12. On the basis of the correct parties to the respective applications as permitted under the Supreme Court Rules, only application No E005 of 2023 met the threshold. Application No E006 of 2023 was struck out. Similarly, Application No E012 of 2023 was struck out to the extent of striking out the parties introduced for the first time through the application. All the pleadings filed by and on behalf of such parties that had been struck out from the proceedings. Only the original litigants could process the application.
13. The prayer by the respondent to strike out High Court proceedings was superfluous. The Supreme Court was not seized of matters that were pending before the High Court. Being an appellate apex court, such decisions of superior courts below could only ascend through the litigation hierarchy to the Supreme Court subject to satisfying the narrow jurisdictional threshold.
14. Under section 21A of the Supreme Court Act the Supreme Court had neither jurisdiction to sit on appeal over its own decisions nor to review its decisions. The circumstances under which the Supreme Court could review its own decision, either on its own motion, or upon application by a party accrued in any of the following conditions:
    1. where the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;
    2. where the judgment, ruling or order was a nullity by virtue of being made by a court which was not competent;
    3. where the court was misled into giving judgment, ruling or order under the belief that the parties had consented; and
    4. where the judgment, ruling or order was rendered on the basis of a repealed law or as a result of a deliberate concealment of a statutory provision.
15. The Supreme Court did not make any new orders in regard to the High Court orders of June 29, 2016 beyond what had been issued by the High Court, the basis for the appeal. The only logical consequence upon setting aside the Court of Appeal judgment was to reinstate the orders as had been issued by the High Court, which the court did and no more. The said orders issued by the High Court were made following inter partes hearing in which the appellant had participated as an interested party.
16. The applicant did not point the court to the specific conditions enumerated under section 21A of the Supreme Court Act upon which it grounded its application. The amended petition before the High Court was still pending. The issues of non-exclusive distribution agreements and restrictive trade practices under section 21(3) of the Competition Act or whatever else was pending threat were things that could only be articulated at the High Court, for a determination based on a factual contest and evidence. Those issues were not before the Supreme Court on appeal. The dispute should be determined by the High Court as the constitutional court or by an arbitrator as a commercial contract. Any and all contested issues of exclusivity were the purview of the High Court where the matter was still pending in a full hearing. Acceptance of such a request would result in the Supreme Court exercising a jurisdiction that it lacked.
17. It had not been demonstrated that the impugned ruling was obtained by fraud or deceit, was a nullity, or that the court was misled into giving its ruling on review under a mistaken belief that the parties had consented. The application failed the dictates of section 21A of the Supreme Court Act and was ripe for dismissal.
18. The Supreme Courts final orders were very specific in so far as the court remitted the matter back to the High Court which was directed to deal with consequences of any disobedience of the orders. The order was informed by various factors.
    1. The Supreme Courts judgment was final and not in the nature of a structural interdict. Once the Supreme Court delivered the judgment, it became functus officio and nothing was expected of the Supreme Court in terms of supervised compliance with any of the orders.
    2. The Supreme Court invoked section 22 of the Supreme Court Act to remit the proceedings to the High Court which had jurisdiction to deal with the matter. As noted in section 28 of the Supreme Court Act, the High Court had similar powers to those of the Supreme Court to deal with the issue of contempt including punishment.
    3. The Supreme Court did not have supervisory jurisdiction over  courts below it.
    4. The decisions of the Supreme Court were enforced by the High Court as provided under section 27 of the Supreme Court Act
19. The applicant was not seeking a review but rather, attempting to enforce the Supreme Courts orders as it understood them. That was untenable. The Supreme Courts jurisdiction over such a matter could only arise in the course of proceedings before judgment was issued.
20. The matter was already concluded and any attempt to argue the instant application could only be through a separate appeal being presented before the court, taking into account the courts jurisdiction and other imponderables. That was not the case for the courts assumption of jurisdiction, more so, not in a manner where the non-compliance remained highly disputed.
21. A finding that results in the potential deprivation of personal liberty by way of civil jail should leave the parties with an avenue for appeal in the event either of them was dissatisfied. Undertaking such an exercise at the appellate and final stage of the litigation process before the apex court did not augur well for the right to access justice including, exhaustion of appellate mechanisms. The parties were at liberty to raise all their issues for determination by the High Court, which was competently seized of the dispute.