Behlum Trading Limited and Anor v The Attorney General and Anor (APPEAL NO 116/2024) [2024] ZMCA 328 (31 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO 116/2024 HOLDEN AT KABWE (Civil Jurisdiction) _. --;-~,.-~-. - ..--·- , . ><' r-- --. t, ( •><: • 1 \ \ ' / 3 l UCr i, .. ~--- ------ .... _ , ......... ,J ; BETWEEN BEHLUM TRADING LIMITED NICKSON CHILANGWA (Suing as depu General of the Patriotic Front Party) "'-~'::::~- "'~ PrELLANT - ecr.eJ ary,, - 2'N APPELLANT AND THE ATTORNEY GENERAL THE ANTI-CORRUPTION COMMISSION 1 ST RESPONDENT 2ND RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA AND PATEL SC, JJA On 14th and 31 st October 2024 FOR THE APPELLANTS: Mr. C . K. Simukonda of Messrs Kang'ombe and Associates FOR THE 1 sT RESPONDENT: Not in attendance FOR THE 2N° RESPONDENT: Mrs. G. M. Muyunda, Assistant Director, Legal Services J U D G M E N T SIAVWAPA JP delivered the Judgment of the Court Cases referred to 1. Matilda Mutale v Emmanuel Munaile SCZ, Judgment No 14 of 2. African Banking Corporation Zambia Limited v Copper Harvest, CAZ Appeal No 18 of 2021 Statutes 1. Constitution of Zambia (Amendment Act No 2 of 2016 2. The Bill of Rights 3. Rules of the Supreme Court, 1999 Other Works A Practical Approach to Civil Procedure, 2 n d Edition Stuart Sime, Oxford Press 1.0 INTRODUCTION 1. 1 This appeal is against the Ruling of the Economic and Financial Crimes Court, a division of the High Court. The three-member Court comprised the Hon. Mrs Justice S. M. Wanjelani, the Hon. Mrs Justice P. K. Yangailo and the Hon. Mr. Justice I. M. Mabbolobbolo. The Court delivered the impugned Ruling on 21 st November 2023. 1.2 In its Ruling, the Court dismissed the Petition filed by the Appellants on the grounds that the 1st Appellant was not properly made a party to the Petition as it was not r epresented by its Directors and that the 2 nd Appellant had not established its locus standi. 2.0 BACKGROUND 2 . 1 The Appellants filed a Petition in the Principle Registry on 14th September 2022 together with an affidavit verifying facts. The Petition was filed under Part III of the Constitution by which the Appellants challenged the legality of the Joint J2 Investigations Team which had seized and sought a forfeiture order of motor vehicles claimed by the Appellants. 2.2 The Respondents opposed the Petition through answers and affidavits in support of the answers to the Petition filed on 27th December 2022 and 18t h January 2023, respectively. 2.3 At some point, the Petition was referred to the Economic and Financial Crimes Court by the Judge in Charge of the General List of the High Court. 2.4 In March 2023, the Appellants filed an amended Petition with leave of the Court containing more or less the same reliefs as in the original Petition. 3.0 THE MOTION AND ITS DETERMINATION 3.1 In April 2023, the Appellants filed a Notice of Motion for reference of matter to the Constitutional Court pursuant to Article 128 (2) of the Constitution. This was accompanied by an affidavit in support deposed to by Nickson Chilangwa 3.2 The Record shows that when the matter came up for hearing, counsel for the Appellants relied on the affidavit and the skeleton arguments filed into Court. On the other hand, counsel for the Respondents did not file an affidavit 1n opposition and left it to the Court to determine the Motion. 3.3 After considering the Motion, and the affidavit, the Court reviewed Article 128 (2) of the Constitution and acknowledged J3 its binding effect on the Court. The Court however, went on to identify an issue of its own motion without being prompted by either party to the Motion (Sua sponte/ sua motu) (of its own motion). 3.4 The issue the Court identified and turned its attention to is; "whether there was before it a properly constituted Petition." The Court then went on to break down the issue into two namely; whether the 1st Appellant had consented to be a party to the Petition and whether the Patriotic Front Party, represented by the 2 nd Appellant, had locus standi. 3.5 Ultimately, the Court found that the 1st Appellant was not a party because its Directors did not sign the Petition and neither did they swear an affidavit verifying the Petition. The Court also found that the Patriotic Front Party, through the 2 nd Appellant, had not demonstrated its interest in the seized vehicles as they were registered in the 1st Appellant's name and other entities. 3.6 Having found as above, the Court determined that there were no Petitioners in the matter and dismissed the whole Petition with costs. 4.0 THE APPEAL 4.1 The Appellants filed the Notice and Memorandum of Appeal with four Grounds of Appeal set out as follows; J4 1. The Court erred both in law and fact when it held that the 2 n d Petitioner had not shown any evidence that the Patriotic Front had any interest in the seized vehicles without any evidence being led at trial by any party. 2. The Court erred in both law and fact when it held that the 1st Petitioner was not properly represented and as such was not party to the matter when the said entity had a cause of action warranting the filing of the Petition. 3. The Court erred both in law and fact when it arrived at the conclusion that the 2 nd Petitioner had no locus without interrogating that question through a trial and against the weight of affidavit evidence on record. 4. The Court erred in law and fact when it held at page Rl 7 paragraph 6.30 that there was no petitioner before it. 5.0 ARGUMENTS IN SUPPORT 5. 1 The · main grievance in ground one 1s that the Court below determined the issues it raised of its own motion without according the Appellants an opportunity to be heard. The Appellants cited the learned authors of "A Practical Approach to Civil Procedure, 2 nd edition page 382 paragraph 32.4 in support of the argument. The book refers to the Rules of the Supreme Court of England 1991 in Order 14A, which provides JS that the Court has power to determine a question of law or point of construction of document at any stage of proceedings and without a full trial of its own motion-------. 5.2 The Order goes on to provide that the parties must consent to the point being determined summarily and if not; they should be accorded an opportunity to be heard. 5.3 In ground two, the Appellants argue that the Petition was properly before the Court because it was signed by counsel who settled it in accordance with Atkin's Court Forms Volume 16 1994 page 34. 5.4 As regards the locus standi of the Patriotic Front Party; the Appellants argue that the Court below did not consider all the evidence on the Record. That had it done so, it would have found that there was exhibited to the affidavit in reply to the affidavit in opposition to the affidavit verifying the Petition letters of sale relating to the vehicles by the 1st Appellant to the 2 nd Appellant. 5.5 Ultimately, the Appellants argue that they both had sufficient interest in the Petition and that the Petition was settled and signed by counsel making it valid and properly before the Court. 6.0 ARGUMENTS IN OPPOSITION 6.1 In disputing the argument that the Court ought to have given the Appellants an opportunity to be heard before dismissing J6 the Petition, the 2 nd Respondent argues that Order 14A of the Rules of the Supreme Court 1999 edition only applies to matters commenced by writ of summons or Originating summons in certain cases and not to Petitions. 6. 2 They argued that the Court needed to consider the issue of locus standi before it could consider the Motion. That the Court dismissed the Petition after holding that there was no Petition because the 1st Appellant had not made itself a party while the Patriotic Front Party had no locus standi. 6.3 On the argument that the Directors of the 1st Appellant ought to have signed the Petition, the Respondents have cited the case of Matilda Mutale v Emmanuel Munaile 1 in which the Supreme Court of Zambia held that a Petitioner is obliged to sign the Petition. 6.4 In effect, the Respondents re-iterated the position of the Court in its Judgment in all the grounds of appeal. They prayed that we dismiss the appeal with costs. 7.0 OUR ANALYSIS AND DECISION 7 .1 We propose to deal with two issues that form the basis of this appeal namely, whether the Court below erred when it went on to determine matters it had raised of its own motion without according the Appellants an opportunity to be heard and whether there was no Petition to consider before the Court. J7 7.2 In their arguments, the Appellants called in aid Order 14A of the Supreme Court Rules of England of 1991. In our jurisdiction, only the 1999 edition of the Rules of the Supreme Court is applicable. The Appellants therefore, cited the wrong edition of the Rules. However, the 1999 edition of the Rules of the Supreme Court of England and Wales, which is applicable to Zambia has Order 14A which has a similar provision as the one cited by the Appellants. 7.3 Under Order 14A (1) of the Rules of the Supreme Court, 1999 referred to above , the Court is empowered "of its own motion, to determine any question of law or construction of any document arising in any cause or matter at any stage of the " d . procee 1ngs-----. 7.4 However, before determining such a question, Order 14A/2/3 @ requires that the parties be given an opportunity to be heard unless they have given consent to an order or Judgment being made. 7.5 In this case, the Court below approached the Motion in a very cautious manner as demonstrated in the following extracts from the Ruling. In line 15 of the Ruling, at page 20 of the Record of Appeal, the Court stated thus; the "We hasten appropriateness of the question for referral requires the Court to interrogate material facts before it." the process of detennining to add that In paragraph 6.8, the Court went on to state thus; J8 "It is trite that where a Court has taken notice of an issue on its own motion without prompting or suggestion from either party, a Court has the power to make an order sua sponte. Against this background, we note that there is an issue that needs to be interrogated before we can consider the Motion before us." 7.6 The Court then stated the issue it wished to consider as; "Whether there is a properly constituted Petition before us on which the Motion before us is anchored.)) What is worthy of note is that throughout its interrogation of the issues it raised, the Court never made reference to Order 14A of the Rules of the Supreme Court 1999 edition. This seems to suggest that the Court did not draw its authority to determine a point of law of its own motion from Order 14A of the Rules of the Supreme Court 1999 edition. 7. 7 From the background the Court gave as quoted in paragraph 7.5 above, it relied on its inherent jurisdiction and as such, it was not bound by the provisions of Order 14A of the Rules of the Supreme Court 1999 edition. 7.8 But does that mean that the Court, using its inherent jurisdiction, can determine points of law or interpretation of documents without according parties an opportunity to be heard, especially where the point of law or interpretation disposes of the entire action or matter before it? 7. 9 In our view the rationale behind the requirement for either granting the parties an opportunity to be heard or to obtain their consent to a determination under Order 14A applies with equal force to a determination pursuant to the inherent J9 jurisdiction of the Court. In that regard, Order 14A/2/6 provides the following rationale for the requirement that the parties should be accorded an opportunity to be heard. "--------------nevertheless, the principle underlying this provision would seem to be that since the procedure under 0. 14A for the detennination of a question of law or construction without a full trial virtually replaces the trial process for such detennination, the occasion on which it is employed should be treated as an important and special occasion. " 7. 10 This would also enable the Court to stay clear of the question whether or not Order 14A applies to a matter commenced by a Petition. It also circumvents the question whether or not a Petition 1s a pleading as Order 14A and some Judicial decisions seem to strongly point to the effect that only matters commenced by writ of summons are covered by the Order. This interpretation is based on the requirement that to employ Order 14A, there must be evidence that the defendant has given notice of intention to defend. 7.11 Therefore, relying on the rationale in Order 14A, it would seem to us that before the Court determines the question of law it has conceived of its own motion, it must accord the parties an opportunity to be heard on the question. But most importantly, denying parties such opportunity would be in conflict with the rules of natural justice. 7.12 The Appellants, in this case, presented a Petition before the Court claiming that their fundamental Freedoms and Rights under the Bill of Rights had been violated pursuant to Article JlO 28 of the Constitution. However, before the Petition could be heard, they applied for an order for constitutional reference under Article 128 (2) of the Constitution. 7 .13 The Court dismissed the Petition and the application that arose from it without the parties, most importantly, the Appellants, who filed the Petition being accorded an opportunity to be heard. This was without doubt prejudicial to the Appellants and it would, in our view, be a travesty of justice if the decision were allowed to stand. 7.14 In African Banking Corporation Zambia Limited v Copper Harvest and three others2 , Appeal No 18 of 2021, we remitted the matter to the High Court for re-hearing after we found that the Court had determined a question of law without according the parties an opportunity to be heard. 7.15 We do not find reason to depart from that position even though in the cited case, the question of law was raised by a party. We are inclined to allow the appeal for the sole reason that the parties were not accorded an opportunity to be heard. 7.16 In the view we have taken, the other grounds of appeal have become otiose. 8.0 CONCLUSION 8.1 At the core of the judicial process is the principle of fairness and equity as encapsulated in the principles of natural justice. The need for Courts to accord litigants the opportunity to be Jll ' . heard in accordance with the law and procedure cannot and should not be downplayed. It must be adhered to at all times . The Court below fell short of this requirement and it is necessary to interfere with its decision. 8 . 2 We the ref ore, allow the appeal and set aside the order dismissing the Petition. We further remit the matter to the High Court's Economic and Financial Crimes Division for the purpose of according the parties an opportunity to be heard on the questions of law the Court determined sua sponte. 8.3 In view of the nature of the matter, we order parties to bear their own costs for the appeal. J. M. SI VWAPA JUDGE PRESIDENT ~~ F. M. CHISHIMBA COURT OF APPEAL JUDGE A. N. PATEL SC COURT OF APPEAL JUDGE J12