AUTRY CHANDA V THE ATTORNEY GENERAL (2021/CCZ/0039) [2021] ZMCC 20 (24 November 2021)

IN THE CONSTITUTIONAL COURT OF ZAMBIA 2021 / ccz / 0039 HOLDEN AT LUSAKA (Constitutional ·Jurisdiction) IN THE MATTER OF: IN THE MATTER OF: BETWEEN: AUTRY CHANDA AND Articles 118 (1) & Article 118 (2) (e) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 Alleged Contravention of Article 118 (1) & Article (2) (e) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 CON REPueuc snrun0NA o,, ZAMBIA lCOURT()j:ZAM ETITIONER . , - 2 l NOV 2011 lp."' THE ATTORNEY GENERA.r---...:.:~:7 :_:. L~U~SAl(A~~ RESPONDENT P o a~!~~~Y t - CORAM: Sitali, Mulonda, Munalula, Musaluke and Mulongoti, JJC on 12th October, 10th November and 24th November, 2021 For the Petitioner: In person For the Respondent: Mrs. N. B. Malilwe, State Advocate-Attorney General's Chambers JUDGMENT Mulongoti, JC, delivered the Judgment of the Court 1. 0 Introduction 1.1 By way of a Petition filed pursuant to Article 128(3) of the Constitution of Zambia as amended by the Constitution of Zambia (Amendment) Act No. 2 of 2016 (the Constitution) and Order IV Rule 1 of the Constitutional Court Rules, the Petitioner Autry Chanda alleges that the Attorney General (Respondent) contravened Article 118(1) and (2)(e) of the Constitution when the Supreme Court refused to review its judgment in the case of Autry Chanda v Barclays Bank Zambia Limited Plc on the premise that the Petitioner's motion for review was incompetent for being filed late. As a result, the Petitioner seeks the following reliefs: (i) A declaration that the Supreme Court's decision to use the technicality of time limitation to dismiss the Petitioner's motion in the matter of Autry Chanda v Barclays Bank Zambia Limited Plc Appeal No. 135/2007, is unconstitutional as it is contrary to the provisions of Article 118(1) and Article 118 (2)(e) of the Constitution; {ii) An order that the Petitioner's motion for review of the Supreme Court Judgment in the matter of Autry Chanda v Barclays Bank Zambia Limited Plc, Appeal No. 135/2007 be allowed; (iii) Such declarations and orders as this Court may deem fit; and J3 (iv) The costs of and occasioned by this Petition be borne by the Respondent. 2. 0 Background facts The background facts leading to the Petition before us, as stated in the Petition and affidavit verifying facts sworn by the Petitioner are, as follows: {i) The Supreme Court, on 11th February, 2010, presided over the appeal case of Autry Chanda v Barclays Bank Zambia Limited Plc Appeal No. 135/2007, in which judgment was pronounced in favour of Barclays Bank on 30th September, 2013. (ii) The Supreme Court judgment was read by a court clerk, who informed the Petitioner that the judgment had not yet been signed and a copy would only be ready for collection after two weeks. However, the Petitioner was only given a copy of the judgment on 25th November, 2013, 57 days after its pronouncement. (iii) Upon perusal of the judgment, the Petitioner observed various misdirections by the Court and his scrutiny of the Supreme Court Rules (SCR) revealed that the court clerk J4 who pronounced the judgment was not authorized to read the Court's judgment in accordance with Rule 73(1) and (2) of the SCR, bringing into question the legality of the pronouncements of the judgment. (iv) On 13th May, 2014, the Petitioner wrote to the then Acting Deputy Chief Justice (A/DCJ) his lordship Justice Mwanamwambwa asking him to confirm whether the judgment was genuine in view of the anomalies observed in the delivery of the judgment and the misdirections contained therein. (v) On 14th May, 2014 the Petitioner met with the A/DCJ and in attendance was the master of the Supreme Court and her deputy. The A/DCJ confirmed the genuineness of the judgment but warned the Petitioner that even if he were to report the matter to the Judicial Complaints Authority, or move the court through a notice of motion for review, the judgment would not be overturned and would result in the Petitioner incurring costs. (vi) On 16th May, 2014, Supreme Cou.i:t Justice Madam Chibomba who was A/DCJ for administrative purposes, JS formerly replied to the Petitioner's letter of 13th May, 2014. Justice Chibomba confirmed the genuineness of the judgment and advised the Petitioner to apply through a notice of motion over legal issues raised in his letter of complaint. (vii) Wary of the A/DCJ Mwanarnwarnbwa's warnings during the 14 th May, 2014 meeting, the Petitioner decided not to risk applying to court via a notice of motion but wrote follow up letters to Justice Chibomba and the Chief Justice (CJ) Marnbilima, as she then was, requesting that the Supreme Court should revisit its judgment in order to · correct the misdirections therein. The letters were in vain as the CJ through her special assistant advised the Petitioner in a letter dated 29th June, 2016 that the Supreme Court delivered a judgment in the matter and it could not be taken any further. (viii) On 30th September, 2019, the Petitioner applied to the Supreme Court, via a notice of motion to review its judgment. He averred that he decided to do so because at J6 that time his lordship Justice Mwanamwambwa had retired. (ix) The motion was heard on 3 rd November, 2020 and was dismissed for being incompetent. The Supreme Court observed that the Petitioner had taken too long to return to court and that he should have filed his notice of motion within 14 days of pronouncement of the judgment in accordance with Rule 48(5) of the SCR. (x) According to the Petitioner the dismissal of the motion leaves unresolved issues in the judgment that if not remedied will result in a manifest injustice and these include: • The acquiescence by the Supreme Court that the Petitioner's employment should be considered to have been terminated without a letter of termination contrary to evidence on record of the provisions of his conditions of service. • The wrong conclusion by the Supreme Court that the Petitioner is a deserter without taking into consideration the fact that according to his conditions of service filed as evidence in court, a deserter is one who stays away from duty for more than 1 0 consecutive working days but that evidence on record, all authored by Barclays Bank Zambia PLC, in the form of their letter of 6th May, 1997, ZRA form ITF/Pl3 and the J7 Certificate of Service indicate that the Petitioner stayed away from duty for only 1 working day. • The argument by the Supreme Court that "it is not for the Appellant as an employee to choose, as he seems to be suggesting, the offence with which he should be charged" when deciding which of two conflicting clauses in the conditions of service to use against the Petitioner without taking into consideration the fact that since Barclays Bank Zambia PLC authored the two conflicting clauses (with the court's choice even being inappropriate as it dealt with desertion from duty whilst the other dealt with reporting back late after leave), the Contra proferentem doctrine should come into play. 3.0 Petitioner's Arguments in Support of the Petition 3.1 Against the backdrop given above, the Petitioner contends that the Supreme Court breached Article 118(1) and 118(2)(e) of the Constitution. The Petitioner argues that although Article 121 of the Constitution provides that the Supreme Court and the Constitutional Court rank equivalently, Article 128 (1) (a) and (b) has granted the Constitutional Court original and final jurisdiction in matters relating to the interpretation and violation or contravention of the Constitution. 3.2 Furthermore, that Article 125(1) of the Constitution provides that the jurisdiction of the Supreme Court as final court of J8 appeal is subject to Article 128 which grants original and final jurisdiction to the Constitutional Court over matters relating to the interpretation and violation or contravention of the Constitution and thereby making the Constitutional Court the guardian of the Constitution. The Petitioner argued in this regard, that although the Constitutional Court and the Supreme Court rank pari passu, the jurisdiction of the Constitutional Court, which is only subject to Article 28, grants it power to deal with all matters relating to interpretation and violation or contravention of the Constitution to which the Supreme Court is subject, by virtue of Article 1(3) and Article 122(1). 3.3 It was the Petitioner's submission that this Court had occasion to interpret Article l 18(2)(e) in the case of Henry Kapoko v The People, 1 wherein it held that the said Article is mandatory and of general application in the administration of justice and that all courts are bound by the said Article, which includes the Supreme Court. In addition, that in the case of Access Bank (Zambia) Limited v The Attorney General,2 we adjudicated over a Petition in which the Petitioner sought the Court's declaration J9 that a Supreme Court judgment was unconstitutional. Thus, this Court has the jurisdiction to hear this matter especially in light of the provision of Article 1 (5) which states that "a matter relating to this Constitution shall be heard by the Constitutional Court." 3.4 The Petitioner argued that the Supreme Court's act of dismissing his notice of motion to review judgment on the ground of expiry of time within which the motion should have been filed, was unconstitutional as the delay was not at the Petitioner's instance but that of the very court. He argued that he only got a copy of the judgment 57 days after it was pronounced by the clerk of court which in itself was contrary to Rule 73(1) and (2) of the SCR. In view of these circumstances, the Supreme Court's dismissal of the motion contravened Article 118(1) of the Constitution as it did not appear to have been done in a just manner. 3.5 The Petitioner referenced Black's Law Dictionary 10th edition for a definition of 'just' which is defined to mean "conforming to or consonant with, what is legal or lawful, legally right, lawful." In line with that definition, it was the Petitioner's submission that he JlO believed that the intention of the framers of the Constitution was to ensure that judicial authority is not exercised in a wrong manner but in a right, lawful or just manner. By extension, the constitutional provision that such exercise of judicial authority shall promote accountability can be viewed as the legislative intention of the framers of the Constitution to ensure that those with judicial authority are ready to be answerable or accountable for their decisions even before they make such decisions. It was the further submission of the Petitioner that the framers of the Constitution made the jurisdiction of the Supreme Court subject to the jurisdiction of the Constitutional Court, recognizing that even the Supreme Court is prone to misdirection to the extent of contravening the Constitution and that such contravention should have a remedy through the Constitutional Court. 3.6 As regards the delay 1n filing the motion, the Petitioner contended that the same could not be said to have arisen as he could not file a notice of motion on a judgment that had not been legally pronounced as it was pronounced by a clerk in contravention of Rule 73(1) and (2) of the SCR. The Petitioner Jll chronicled the issues he had raised in the motion in the Supreme Court and submitted that based on the circumstances of the case, the application of the technicality of time by the Supreme Court was contrary to the provisions of Article 118(2)(e). In support of this submission, the Kenyan cases of James Mangeli Musoo v Ezeetec Limited3 and Raila Odinga & others v Independent Electoral and Boundaries Commission & others4 were referred to. The Petitioner reiterated that in light of the anomalies in the pronouncement and availing him a copy of the judgment late, the application of Rule 48(5) by the Supreme Court amounted to undue regard to procedural technicalities at the expense of dispensing justice and contravened Article 118(2)(e). 3.7 The Petitioner drew a distinction between the current case before us and that of Henry Kapoko v The People. 1 He submitted that in the Henry Kapoko v The People 1 case what was being considered were substantive provisions of the law. In casu, the applicability of Rule 48(5) was technical and not substantive and does not serve the interest of justice as it prejudices the Petitioner and hinders the Supreme Court from revisiting, J12 varying or reversing its decisions to correct its misdirections. He argued that the form, content and application of Rule 48(5) by the Supreme Court is such that it is unfair to the Petitioner given that the judgment was wrongly read by a clerk and it was given to him late. And that, if not remedied by this court it would leave a manifest injustice unattended to. In light of the above, the Petitioner contended that the Supreme Court used the technicality in Rule 48(5) of the Supreme Court Rules to avoid its duty to account for and correct its misdirections. In so doing, the Supreme Court disregarded its jurisdiction conferred by Article 125(3) and went contrary to the position it confirmed in the case of Zambia National Commercial Bank v Geoffrey Muyamwa & 88 others5 where the court revisited and varied its earlier decision. 4.0 The Respondent's Answer 4.1 For its part, the Respondent filed an Answer in which it averred that the allegations that a court clerk read the judgment on 30th September, 2013 but it was only given to the Petitioner on 25th November, 2013 and of the purported meeting of 14th May, 2014 J13 where A/DCJ Mwanarnwambwa issued warnings to the Petitioner are within the Petitioner's peculiar knowledge. 4.2 The Respondent denied the allegation that it caused the Petitioner's pension benefits to be reduced when the Bank paid him in 2016. 4.3 The Respondent admitted that the Petitioner filed a notice of motion but averred that the motion was filed for the Supreme Court to re-open the case more than 6 years from the date of the judgment in issue contrary to Rule 48(1) and (5) of the SCR which provides for the period within which to file a motion where a matter involves a decision of an appeal that had already been heard and determined by the Supreme Court. 4.4 Furthermore, that at the time the Petitioner filed the motion in the Supreme Court, time had lapsed for the Court to hear his application. And that, Article 118(2)(e) has been interpreted in a plethora of cases which the Respondent relies upon. 4.5 It was the Respondent's prayer that the Petition be dismissed with costs as the Petitioner is not entitled to the reliefs sought as the matter has been brought before the wrong court. J14 4.6 The Answer was supported by an affidavit verifying answer sworn by Paul Chisha the acting Chief Registrar and Director of Court operations in the employ of the Judiciary. The contents of the affidavit are the same as the Answer and we will therefore not repeat them. The Respondent's Arguments in Opposition 4.7 The Respondent filed its skeleton arguments in opposition on 31 st August, 2021. In submitting on the jurisdiction of this Court to review the decision of the Supreme Court, Counsel for the Respondent called in aid the provisions of Article 128 of the Constitution which provides for the jurisdiction of the Constitutional Court. With Reference to Article 121 of the Constitution, Counsel submitted that the said Article has given the Constitutional Court and the Supreme Court equal jurisdiction and that the Constitutional Court cannot therefore, review a decision of the Supreme Court. It was Counsel's submission that the Constitutional Court has jurisdiction to determine constitutional matters including those originally commenced in the Supreme Court but that the Petitioner has brought a matter that had already been decided by the Supreme JlS Court. That in this regard, the application for review is wrongly before us as we cannot review the judgment of the Supreme Court which is of equal jurisdiction. 4.8 As regards the alleged contravention of Article 118 (1) and (2) (e), Counsel placed reliance on the case of Henry Kapoko v The People 1 (also cited by the Petitioner) for his submission that the said provision of the law is not intended to do away with existing principles, laws or rules of procedure. 4. 9 Counsel also referred to the case of Muchinka Farm Limited v Attorney General & others6 in which the Court of Appeal held that the trial judge's denial to review a case after a period of 1 year 7 months could not be described as a technicality in breach of Article l 18(2)(e). Reference was also made to the Kenyan Case of James Mangeli Musoo v Ezeetec Limited3 (also cited by the Petitioner) for the definition of technicality. In light of the cases cited, it was Counsel's submission that the Petitioner's six years delay in malting the application for review could not be described as a technicality in breach of Article l 18(2)(e) of the Constitution. J16 4.10 Counsel submitted that Rule 12(2) of the SCR provides for an extension of time and that such an application ought to be made within 21 days of the Judgment or such time within which an application ought to have been made unless leave of Court is obtained to file the application out of time. That the Supreme Court, in the case of Investrust Bank PLC v Build It Hardware 7 found that a delay of 50 days after Judgment was too long a delay. Therefore, in casu the period of 6 years delay was inordinate and cannot be described as a technicality in breach of Article l 18(2)(e). 4.11 It was further argued that in line with Article 125(1), the Supreme Court is the final Court of appeal, a position which was confirmed in the case of Abel Banda v The People 8 where it was held that the Supreme Court can review its previous decisions where there is sufficiently good reason not to follow it. 4.12 On the basis of the above authorities, it was Counsel's submission that the Supreme Court, having determined the Petitioner's case in 2013, cannot review its decision on it. In addition, that the Constitutional Court has no jurisdiction to determine the Petitioner's Petition as it has equal jurisdiction to J17 the Supreme Court and the decision of the Supreme Court in question is not in breach of Article 118(1) and (2)(e) as contended. 4.13 It was argued that the available avenue for the Petitioner would have been to make an application pursuant to Rule 78 of the SCR which is couched thus: "clerical errors by the Court or a Judge thereof in documents or process, or in any Judgment, or errors therein arising from any accidental slip or omission, may at any time be corrected by the Court or a Judge thereof." That the Petitioner should have made the application under Rule 78 known as the slip rule within the prescribed time under Rule 12(2) but he sat on his rights. Accordingly, the Petition is wrongly before us and should be dismissed for lack of merit, with costs to the Respondent. 5. 0 The Hearing 5.1 At the hearing of the Petition, the Petitioner augmented his written submissions by reiterating that this Court has jurisdiction to hear his case. He referred us to page 161 of the record, where the Respondent argued that this Court has no jurisdiction to hear this case as it ranks equivalently with the J18 ... Supreme Court. It was the Petitioner's submission that Article 271 of the Constitution gives this Court jurisdiction to hear this matter. Furthermore, that this Court has jurisdiction to hear the case in accordance with Article 128(3)(c). He reiterated that all courts including the Supreme Court are bound by Article 118. The Petitioner further submitted that Article 118 does not forbid any court from relying on a procedural technicality but undue regard of the same. And, that all courts are bound by Article 118 in administering justice. Thus, each court using the same measuring stick would determine whether in the particular case what is in issue is a technicality and if so whether compliance with it would hinder the determination of the matter in a just manner. 5.2 He went on to submit that Article 273 of the Constitution was contravened by the Supreme Court when its judgment was pronounced by a court clerk who was not authorized to do so. Therefore the 6 years delay and breach of Rule 48(5) cannot arise as the Court itself delayed to pronounce judgment and wrongly did so. According to the Petitioner, this fact of the clerk J19 ' reading the judgment was brought to the attention of the Supreme Court in his letters to them and they did not deny it. 5.3 In response, the learned State Advocate Ms. Malilwe simply placed reliance on the Respondent's Answer, the affidavit verifying Answer and the Respondent's arguments 1n opposition. 6.0 Evaluation and Decision 6.1 We have considered the contents of the Petition, the Answer, the Affidavits and the written and oral submissions by the parties. 6.2 The issues that arise for our determination are; whether the Supreme Court's decision to dismiss for incompetence the Petitioner's motion to review its judgment in Autry Chanda v Barclays Bank Zambia Limited Plc, Appeal No. 135/2007 is unconstitutional for contravening Article 118(1) and (2)(e) of the Constitution; whether the Supreme Court paid undue regard to a procedural technicality by enforcing its rules, whether this Court can review the Supreme Court judgment of 30th September, 2013; and /or whether we can order the Supreme J20 Court to re-open the case of Autry Chanda v Barclays Bank and review the said judgment. 6.3 We must state at the outset that we agree with submissions that this Court has jurisdiction to hear this matter. For avoidance of doubt, this Court has jurisdiction to hear cases involving interpretation and violation or contravention of the Constitution. The Court's jurisdiction is as enshrined in Article 128(1),(2) and (3) of the Constitution as follows: (1) Subject to Article 28, the Constitutional Court has original andfinaljurisdiction to hear- (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to a violation or contravention of this Constitution; (c) a matter relating to the President, Vice President or an election of a President; (d) appeals relating to election of Members of Parliament and councilors; and (e) whether or not a matter falls within the jurisdiction of the Constitutional Court. (2) Subject to Article 28(2), where a question relating to this Constitution arises in a Court, the person presiding in that court shall refer the question to the Constitutional Court. (3) Subject to Article 28, a person who alleges that - (a) an Act of Parliament or statutory instrument; (b) an action, measure or decision taken under law; or J21 (c) an act, omission measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress. The Petitioner has alleged that the Supreme Court contravened Article 118(1) and (2)(e) of the Constitution and as such this Court has jurisdiction to hear the case. 6.4 Be that as it may, the pertinent issue or question 1s, did the Supreme Court contravene Article 118(1) and (2)(e) of the Constitution when it dismissed the Petitioner's motion for incompetence for being filed contrary to the SCR in particular Rule 48(5)? 6.5 In order to put matters in proper perspective, we reproduce the provisions of Article 118(1) and (2)(e) of the Constitution which provides that: (1) The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability. (2) In exercising judicial authority, the courts shall be guided by the following principles .... (e) justice shall be administered without undue regard to procedural technicalities. J22 6.6 The Petitioner argues that the Supreme Court contravened Article 118(1) and (2)(e) of the Constitution when it dismissed his motion for being filed 6 years late in violation of Rule 48(5). Before we can delve to resolve this issue, we wish to say something about why courts have rules. 6. 7 To start with Article 120(3)(a) of the Constitution provides as follows: The following matters shall be prescribed: (a) processes and procedures of the Courts; Article 266 of the Constitution defines the word "prescribed" as meaning "provided for in an Act of Parliament." Thus, flowing from the Constitution, the Supreme Court of Zambia Act Chapter 25 of the Laws of Zambia prescribes for the processes and procedures of the Supreme Court. 6.8 The Petitioner's motion was dismissed for offending the Supreme Court of Zambia Rules. These rules were promulgated by the Chief Justice in accordance with Section 28 of the Supreme Court of Zambia Act, (the Act). Section 28 of the Act provides thus: J23 The Chief Justice may, by statutory instrument, make rules of court for regulating generally the practice and procedure of the court and with respect to appeals to or reviews by the court including rules as to the time within which any requirement of the rules is to be complied with, as to the costs of and incidental to any proceedings in the court and as to the fees to be charged in respect of proceedings therein and generally in regard to any other matter which appears to the Chief Justice to be necessary or desirable. 6.9 The rules are subsidiary legislation to the Act and appear as such. It is trite that subsidiary legislation is made under an Act to expand on or supplement the provisions of the Act. Subsidiary legislation has the force of law and attracts sanctions when violated as they are made by a subordinate authority in exercise of powers as delegated to it to do so by Parliament. 6.10 As aforementioned the rules in question were made by the Chief Justice in line with Section 28 of the Act. Rule 48(5) was amended by Statutory Instrument No. 26 of2012 to provide that an application involving the decision of an appeal shall be made to the court within 14 days of the decision complained of. Accordingly, the Supreme Court is guided by its rules in the conduct of business in that court. And in line with Rule 48(5), J24 the Petitioner ought to have filed his motion within 14 days of the judgment of 30 th September, 2013. 6.11 The Supreme Court has elucidated in a number of its decisions such as Standard Chartered Bank v Banda, 9 Access Bank (Zambia) Limited v Group Five ZCON Limited, 10 NFC Mining Plc v Techno (Z) Limited 11 that rules of court ought to be complied with and a party who does not comply with the rules, will suffer consequences including dismissal of their case. The Court indicated instances where even though a party may have breached the rules, they may be allowed to proceed as if no breach had occurred and be directed to make the necessary amendments. It was observed in Standard Chartered Bank v Banda9 that " ... rules should generally not be used as a mine.field for parties who make fairly inadvertent mistakes that translate into no tangible prejudice to the other party. If an irregularity can be cured without undue prejudice, then it is desirable that such irregularity be put right subject to an order as to costs against the erring party." 6.12 Clearly, the Supreme Court has discretion to decide which breach of its rules can be tolerated and which cannot. As alluded to, at the hearing of the Petitioner's motion on 3 rd J25 November, 2020, the Supreme Court dismissed it for incompetence as it was filed 6 years after the judgment he was seeking to be reviewed. 6.13 Given the background facts as outlined at paragraphs 2.0 of this judgment, it is clear that the Petitioner decided to take matters in his own hands and waited, according to himself, for his lordship Justice Mwanamwambwa to retire before he could file his motion. We opine that the Supreme Court was entitled to exercise its discretion, as it did, to dismiss the motion as the Petitioner had contumeliously disregarded the rules. He chose to delay the filing of his motion, and by awaiting his lordship's retirement, he engaged in forum shopping as to which judges should hear his case, which is wrong. It is trite that appeal cases are not determined by an individual judge but by all the judges of the appellate Courts even though most matters are not heard by the full bench of the Court. 6. 14 We also addressed our minds to the letters exchanged between the Petitioner and some of the Judges of the Supreme Court. We opine that time did not stop running because of the letters. We note the Petitioner's argument that he was given the Judgment J26 57 days after it was delivered, we opine that this is an issue which needed to be proved before the appropriate Court and which if proved was good reason for which discretion could have been exercised in his favour. 6.15 The Petitioner contends that the Supreme Court contravened Article 118(1) and (2)(e) when it dismissed his motion for breach of Rule 48(5). Article 118(1) speaks to the fact that the authority of the Judiciary/ Judges derives from the people and shall be exercised in a just manner that promotes accountability. Whilst Article 125 provides for the establishment and jurisdiction of the Supreme Court and the Supreme Court of Zambia Act Chapter 25 of the Laws of Zambia provides for the procedure and powers of the Supreme Court. The Chief Justice as aforestated then makes the rules of the Court pursuant to Section 28 of the Act. The Rules guide litigants on how to present their cases before the Supreme Court as it fulfils its constitutional mandate. 6.16 Thus, guided by the SCR the Petitioner filed his motion. As the motion is not on record, we do not know pursuant to which rule he did so. The motion was set for hearing on 3 rd November, 2020 J27 but was dismissed for incompetence. The motion was heard by a duly constituted panel of Judges of the Supreme Court. The Petitioner appeared before the Court and was afforded an opportunity to be heard. The court as per its mandate rendered a ruling, albeit, extempore. Thus, we are of the considered view that the Supreme Court did not contravene Article 118(1) but acted in accordance with it. The Petitioner simply went to court late and his motion was dismissed for being incompetent as it was filed contrary to rule 48(5) of the SCR. 6.17 The question that still begs an answer is, did the Supreme Court decision of dismissing the motion for being filed so inordinately late amount to paying undue regard to procedural technicalities and thereby violating Article l 18(2)(e)? We do not think so. 6.18 On this point we said in the case of Henry Kapoko v The People 1 that "while the facts and law in each case will vary the principle laid out by this Court on the meaning and application of Article 118 (2)(e) remains constant. The Court's word is clear. Article 118 (2)(e) is not intended to do away with existing principles, laws and procedures, even where the same constitute technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality." J28 6.19 We therefore find no merit in the Petitioner's argument that the Henry Kapoko v The People 1 case is distinguishable from this case. The essence of the Henry Kapoko v The People 1 case being that Article 118(2)(e) is not intended to oust the existing rules, laws and procedures of the courts. Further, we reiterated in the case of Access Bank (Zambia) Limited v The Attorney General2 wherein the Petitioner sought a declaration that the Supreme Court judgment of 26th February, 2016, was unconstitutional as it violated Article 118(2)(e) that; "the Supreme Court was well within its mandate when it dismissed the Petitioner's appeal as rules of court are intended to assist in the orderly administration of justice and as such must be strictly followed. Parties who choose not to comply with the rules do so at their own peril. Parties must not hide behind Article 118(2)(e) of the Constitution to flout the rules of procedure with impunity and expect to get away with it." 6.20 Considering our decisions in Henry Kapoko v The People 1 and Access Bank (Zambia) Limited v The Attorney General, 2 we are of the considered view that the decision of the Supreme Court to dismiss the Petitioner's motion for being incompetent as it violated the rules, was not unconstitutional for breach of Article l 18(2)(e). We see no manifest injustice that may befall the J29 Petitioner in this regard. His conduct of disregarding the rules of court and of waiting for his lordship Justice Mwanamwambwa to retire, cannot be equated to an inadvertent mistake that would result in no prejudice to the other party but it is quintessential of disregarding the rules of court at one's own peril. It is trite that there must be an end to litigation, one cannot keep dragging the same party to court over the same issues. Justice is for both parties. 6.21 We find the arguments by the Petitioner that, Rule 48(5) of the SCR hinders the Supreme Court from revisiting, varying or reversing its misdirections to be meritless. To the contrary, Rule 48(5) provides a window to the parties to make applications after judgment by the Supreme Court, so that the Court can do just that, i.e vary, reverse or revisit its decision and thereby address any manifest injustice. All Rule 48(5) requires is that the same is done within a specified time frame being 14 days. Once the application is properly before the Supreme Court if filed within 14 days or outside if extension of time was granted or the court exercises discretion to hear the application despite a breach of the rules, the application would be heard and accordingly J30 determined and if grounds exist to warrant the Court to vary or reverse its earlier decision, the Court shall do so as it did in the National Commercial Bank v Geoffrey Muyamwa & 88 others 5 case cited by the Petitioner. However, in casu the circumstances of this case are such that the Petitioner went to court 6 years late and the Supreme Court dismissed his application for review for being incompetent on account of being late. 6.22 In light of the foregoing, the first relief for a declaration that the Supreme Court's decision to use the technicality of time limitation to dismiss the Petitioner's motion is unconstitutional as it is contrary to Article 118(1) and (2)(e), fails. 6.23 Regarding the second relief, we are of the considered view that it is misconceived as we cannot order the Supreme Court to re open the case of Autry Chanda v Barclays Bank and review its judgment, having found that it did not contravene the Constitution. We addressed our minds to the Petitioner's submission that dismissal of the motion by the Supreme Court leaves unresolved issues in the judgment that if not remedied will result in a manifest injustice because of the followihg: Bl I . i .1 tantamount to us rev1ew1ng the Supreme Court judgment, which we cannot do. Arguments on Rule 78 (slip rule) and Rule 12(2) of the SCR by the Respondent are not within this court's purview but that of the Supreme Court. 6.25 With regard to the Petitioner's submission that a court clerk read the judgment contrary to Rule 73(1) of the SCR, we opine that this is a contentious issue which needed evidence to be proved. We are alive to the Petitioner's submission at the hearing that this was in breach of Article 273 which provides thus: In this Constitution, a power conferred on a person or an authority to make a statutory instrument, a resolution or direction, includes the power to amend or revoke the statutory instrument, resolution or direction. We opine that Article 273 has been cited out of context in this regard. The Petitioner did not even substantiate how Article 273 of the Constitution has been breached. Suffice to state that Rule 73(1) of the SCR is still in force. 6.26 The upshot of the preceding paragraphs 1s that the Supreme Court exercised its discretion judicially when it dismissed, for incompetence, the Petitioner's motion and its decision is J33 constitutionally valid. We are. unable to grant any other declarations and orders as sought under the third relief. 6.27 The Petition lacks merit and is dismissed in its entirety. However, because the Petition raised important Constitutional issues, we order each party to bear own costs. A. M. SITALI CONSTITUTIONAL COURT JUDGE P. M LO A CONSTITUTIONAL COURT JUDGE M. M. MUNALULA CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE J34