[IN THE SUPREME COURT OF ZAMBIA
HOLDEN AT LUSAKA
(CONSTITUTIONAL JURISDICTION)
SCZ/8/051/2013
IN THE MATTER OF:
ARTICLE 72(1)(A) OF THE CONSTITUTION
OF THE REPUBLIC OF ZAMBIA
AND IN THE MATTER OF:
SECTIONS 63, 81 TO 86 AND 93 TO 95 OF
THE ELECTORAL ACT NO. 12 OF 2006
AND IN THE MATTER OF:
ELECTORAL
CODE
OF
CONDUCT
STATUTORY INSTRUMENT NO. 52 OF 2011
AND IN THE MATTER OF:
CHISAMBA PARLIAMENTARY ELECTIONS
HELD
IN
ZAMBIA
ON
THE
20TH
SEPTEMBER, 2011
AND IN THE MATTER OF:
THE
PETITION
FOR
CHISAMBA
CONSTITUENCY
ELECTIONS
IN
THE
CENTRAL PROVINCE OF THE REPUBLIC OF
ZAMBIA HELD ON 20TH SEPTEMBER, 2011
AND IN THE MATTER OF:
THE ELECTORAL PETITION RULES NO.
426 OF 1968
B E T W E E N:
OSWALD CHULU
APPLICANT
AND
MOSES MUTETEKA
1STRESPONDENT
ELECTORAL COMMISSION OF ZAMBIA
2ND RESPONDENT
Coram: Mwanamwambwa, Wanki, and Muyovwe, JJS
On the 20th November, 2013 and 12th February, 2014.
For the Appellant: Mr. W. Mubanga of Messrs Chilupe and Permanent
Chambers
st
For the 1 Respondent: Mr. F. Besa, Messrs Besa Legal Practitioners
For the 2nd Respondent: No appearance
RULING
Muyovwe, JS, delivered the Ruling of the Court.
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Cases referred to:
1. D. E. Nkhuwa vs. Lusaka Tyre Services (1977) Z.R. 47
2. Nahar Investments Limited vs. Grindlays Bank International (Z)
Limited (1984) Z.R. 81
3. Stanley Mwambazi vs. Morester Farms Limited (1977) Z.R. 108
4. Wilheim Roman Buchman vs. Attorney General (1994) S.J. 76
5. John Sangwa and Messrs Simeza Sangwa & Co. vs. Hotellier Limited
and Ody’s Works Limited SCZ/8/402/2012
This is a Notice of Motion pursuant to Rule 48 of the Supreme
Court Rules Chapter 25 of the Laws of Zambia, in which the
applicant is applying for an order that leave to file the notice of
appeal out of time may be granted.
In the affidavit in support deposed by Michael Rogers Tembo,
it was stated that on or about 5th March, 2012 he was instructed to
file an application for leave to file a Notice of Appeal out of time in
the High Court and that the applicant was late by three days to file
the Notice of Appeal in the Supreme Court. That he could not file
the application on 5th March, 2012 in the High Court as the
Registry officers refused to accept the documents because the case
record was missing, after the deadline of judgment on 31st January,
2012. According to paragraph 5, the case record was only found on
1st June, 2012, when the deponent filed the applicant’s application
for leave to file the Notice of Appeal out of time. He stated that after
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filing the application, the case record was not taken directly to Hon.
Judge Wood’s Marshal, as there was an application for taxation
before the Taxing Master, for hearing on 22nd June, 2012.
That,
therefore, the delay to hear the applicant’s application for leave to
file the Notice of Appeal out of time was for a period of three days,
and which was as a result of the missing file at the High Court
Registry. Further, that the application was dismissed by the lower
Court on 19th July, 2012 and immediately he was instructed to file
the same application in the Supreme Court Registry. However, that
he was advised by the Supreme Court Registry staff that the
application could not be allowed unless the Order by the lower
Court was exhibited. That again the case record went missing and
could not be signed by Judge Wood and it was only found on 25th
January, 2013. And that he filed the application in the Supreme
Court on 14th February, 2013.
That in the circumstances, there
was no inordinate delay by the applicant in pursuing his
application to file the Notice out of time.
In the affidavit in opposition sworn by the 1st respondent, he
stated that all the reasons advanced by Michael Rogers Tembo in
the affidavit in support are an afterthought and should not be
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considered.
That the reasons which were given before the single
Judge were totally different from the reasons being advanced before
us. It was stated that in his application dated 14th February, 2013,
the applicant stated that he could not appeal within time because of
an urgent trip to Sesheke, where he remained between 15th
February, 2012 and 5th March, 2012 and that there was no phone
network in Sesheke to contact his lawyers. He urged the Court to
dismiss the Notice of Motion which was full of new reasons that
were clearly an afterthought and irregular.
In his filed Heads of Argument, Counsel for the applicant
submitted, inter alia, that the refusal to allow the applicant’s
application for an order for leave to file Notice of Appeal out of time
was not on firm ground as failure by the applicant to file the appeal
within the prescribed period was only for a period of three days, as
clarified in the affidavit in support.
That the failure could not
entirely be blamed on the applicant, as found by the single Judge,
in view of the fact that the delay was only three days. Further, that
this Court ought to take into account the fact that contrary to the
finding by the Court in its ruling of 18th April, 2013 that the
applicant should have used the landline, such a facility could only
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be available in the Boma area of Sesheke and not in a remote village
of Sesheke. That three days delay cannot be considered inordinate
by any stretch of imagination and Counsel relied on the cases of D.
E. Nkhuwa vs. Lusaka Tyre Services1 and Nahar Investments
Limited vs. Grindlays Bank International (Z) Limited2.
It was
submitted that the evidence disclosed in the affidavit of Michael
Rogers Tembo clearly shows that the entire delay on the part of the
applicant to file his application for an Order for leave was on
account of a missing case record caused by the lower Court and not
attributable to the applicant. It was pointed out further that there
was no inordinate delay on the part of the applicant in the
prosecution of this application because the 30 days within which to
appeal expired on 2nd March, 2012 and that Judgment was
delivered on 31st January, 2012. Counsel prayed that the order for
leave to file the Notice of Appeal out of time be granted.
In response, Counsel for the respondent filed Heads of
Argument. It was submitted that a perusal of the applicant’s
affidavit confirms that this application has been marred with
malafides and dishonesty on the part of the applicant.
It was
submitted that in the affidavit in support of the application to file
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the Notice of Appeal out of time dated 14th February, 2013, the
appellant stated that he was late in filing the Notice of Appeal
primarily because he had travelled to Sesheke, where according to
him, there was no phone network and, therefore, he could not
contact his lawyers to instruct them to appeal.
That this is the
same reason the appellant had given in the Court below before Hon.
Judge Wood, as can be seen from his affidavit in support dated 1st
June, 2012. That the affidavit in support of the Notice of Motion
filed on 18th July, 2013 this time sworn by Michael Rogers Tembo
advances completely different reasons. According to that affidavit,
as stated in paragraphs 3 and 4 thereof, the reason for the delay is
that on 5th March, 2012, when Michael Rogers Tembo was
instructed to file the application, the case record had gone missing
after delivery of Judgment on 31st January, 2012. It was submitted
that if indeed the reason was genuine, the applicant would have
alluded to the missing Court file as at June, 2012 when his
application was filed in the High Court. The missing Court record
was not the main basis for the delay as explained by the applicant
but the trip to Sesheke and communication breakdown between
him and his co-petitioner. It was argued that bringing totally new
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reasons at this stage in the form of Michael Rogers Tembo’s affidavit
which reasons were not given to Judge Wood and Judge
Mwanamwambwa, show lack of consistency and as found by the
single Judge, amounts to improper conduct and malafide. Counsel
referred to the case of Stanley Mwambazi vs. Morester Farms
Limited3 which was relied upon by the single Judge in the Ruling
appealed against. In that case it was held that:
(i) It is the practice in dealing with bona fide interlocutory
applications for court to allow triable issues to come to
trial despite the default of the parties; but it is not in
the interest of Justice to deny him the right to have his
case heard.
(ii)
For this favourable treatment to be afforded, there must
be no unreasonable delay, no mala fides and no
improper conduct in the action on the part of the
Applicant.
That the single Judge noted that Judgment in the Court below
was delivered on 21st January, 2012 and the applicant purportedly
left for Sesheke on 15th February, 2012.
That the single Judge
found as a fact that contrary to the suggestions of the applicant,
there was network in Sesheke and that he came back from Sesheke
on 14th March, 2012 but only filed the application before the Court
below on 1st June, 2012.
It was further submitted that as the
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applicant did not raise the issues of the missing file as one of the
reasons for his delay in filing the Notice of Appeal within time, the
applicant is not at liberty to now raise that issue in this Court.
Counsel relied on the case of Wilheim Roman Buchman vs.
Attorney General4 where it was held that:
“A matter that is not raised in the Court below cannot be
raised before a higher Court as a ground of appeal.”
That,
therefore,
the
issues
of
the
missing
record
are
improperly before this Court and should not be entertained and
that the missing Court file, if at all, did not prevent the applicant
from filing the Notice of Appeal but rather from filing the application
to lodge the Notice of Appeal out of time.
That it was further
submitted that the introduction of the issue of the missing file at
this stage only serves to confirm the single Judge’s finding that the
applicant’s conduct was improper and, therefore, undeserving of the
favourable treatment afforded as stated in the case of Stanley
Mwambazi3.
Counsel urged us to dismiss the application with
costs.
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We have considered the affidavit evidence from both parties,
the Ruling by the single Judge and the submissions by Counsel for
the parties.
First of all, Mr. Mubanga raised concern over the fact that
Judge Mwanamwambwa who sat as a single Judge was also part of
the panel. U nder Rule 48 (4) of the Supreme Court Rules any
person aggrieved by any decision of a single Judge, may make an
application to the full Bench. The application is basically a renewal
of the application earlier heard by the single Judge. It has been a
practice in the Supreme Court to have the single Judge whose
Ruling is the subject of an application before the full Bench sit on
the panel even when he/she earlier refused the application (See, for
example, the case of John Sangwa and Messrs Simeza Sangwa &
Co. vs. Hotellier Limited and Ody’s Works Limited ). And it is
important to bear in mind that any decision of the Supreme Court
is a majority decision. The concern is, therefore, without any basis.
Turning to the application before us, while we agree that time
within which to take certain steps can be enlarged, this, as has
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been stated in a plethora of cases is not automatic. Rule 12(1) of
the Supreme Court Rules provides:
“The Court shall have power for sufficient reason to
extend time for making any application, including an
application for leave to appeal, or for bringing any appeal,
or for taking any step in or in connection with any appeal,
notwithstanding that the time limited therefor may have
expired, and whether the time limited for such purpose
was so limited by the order of the Court or by these Rules,
or by any written law.”
We are also alive to our decision in the D. E. Nkhuwa¹ and
Nahar Investments² cases which the applicant heavily relied on.
The applicant must provide sufficient reasons for bringing the
application late. In dealing with this application, we cannot ignore
the affidavit evidence presented before the single Judge and in the
Court below.
It has been rightly argued and pointed out by the 1st
respondent’s Counsel that the reasons given before the single Judge
are different from the reasons given in this Court. According to the
affidavit in support filed on 14th February, 2013 before the single
Judge the applicant stated as follows:
“5.
That upon receipt of the Judgment which was
delivered by this Honourable Court on 31st January,
2012 against me and my colleague aforesaid it
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became necessary for the two of us to consult each
other as to how we were to jointly proceed in the
preparation of the appeal, as well as attendant
logistics but was unable to access the Co-petitioner
due to the reasons stated in paragraph 6 hereof.
6.
That as I was in the process of consulting my
colleague aforesaid I had to make an urgent trip to
Sesheke in the Western Province from on or about
15th day of February, 2012 up to 5th March, 2012
when I came back to Lusaka. The purpose of my trip
was to do some business as well as to visit my brother
in-law one Simushi who was very sick. During the
time I was in Sesheke I was unable to be in
communication either with the Co-petitioner or my
Advocate to communicate my instructions due to
lack of network.
7.
That as a result of the circumstances disclosed in
paragraph 5 and 6 hereof it became impossible for me
to file the Notice of Appeal within the 30 day period
required by the rules of this Court.
12. That I am desirous of proceeding with this appeal and
have been advised and verily believe that it is viable
and that my failure to file the Notice of Appeal within
30 days of the delivery of Judgment was as a result of
communication breakdown between myself and my
Co-petitioner and my Advocate as well as his
Advocate.
Under the circumstances aforesaid I
hereby apply to file the Notice of Appeal out of the
time limited by the rules of this Court.”
It is, therefore, strange that when the matter came before the
full bench, the reasons advanced changed. This brings the sincerity
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of the applicant into question. Indeed, if the missing case record
was an issue, it would have been advanced before the single Judge.
We tend to agree with Counsel for the respondent that this was an
afterthought.
We cannot, therefore, fault the single Judge.
The
reasons given by the respondent in his affidavit in support show
lack of seriousness.
We do not wish to encourage litigants to relax
while the time is running only to come to Court and hide behind
decided cases like Nahar Investments² or indeed behind Rule
12(1).
This was not the intention of Rule 12(1) and we cannot
encourage litigants who sit on their rights to abuse the Court
process.
In any case, Nahar Investments² can be clearly
distinguished from the case in casu. In this case, the delay to lodge
the Notice of Appeal was due to the fact that the applicant left
Lusaka for Sesheke and took his time to consult his co-petitioner
and ended up running out of time.
And as the single Judge
observed, the case of Mwambazi vs. Morester Farms³ is not
applicable in this case.
We certainly do not find any sufficient reasons to allow this
application.
We find that the single Judge was on firm ground
when he dismissed the applicant’s application for lack of merit. The
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application is dismissed with costs to the 1st respondent to be taxed
in default of agreement.
……………….……….…………………….……..
M.S. MWANAMWAMBWA
SUPREME COURT JUDGE
…………………………….………..
…………….…………….…………………
M.E. WANKI
SUPREME COURT JUDGE
E.N.C. MUYOVWE
SUPREME COURT JUDGE
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