Nobert Peleti v Attorney General and Anor (CAZ/08/284/2019) [2019] ZMCA 377 (19 December 2019)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/O8/284/2019 Rl HOLDEN AT LUSAKA (CIVIL JURISDICTION) B ETWEEN: NOBERT PELETI AND APPLICANT THE ATTORNEY GENERAL 1st RESPONDENT THE ANTI-CORRUPTION COMMISSION 2 nd RESPONDENT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Applicant: Mr. F . Mutale, Messr s F. M . Legal Practitioners For the 1s t Respondent: No appearance. For the 2 n d Respondent: No appearance . RULING Cases referred to: 1. Elias Te mbo v Henry Siche mbe and Lusaka City Council, Appeal n o. 1 77 of 2 01 4 2. Zambia Consolidated Copp er Mines Limited v Patrick Mulemwa SCZ Judgme nt No 15 of 1995 3. Thyme v Thyme [1955] 3 All ER 138 Legislation referred to: 1. The Court of Appeal Act, No 7 of 2016 R2 1.0. Introduction 1.1. This is an application on behalf of the applicant for leave to appeal. The application is taken out pursuant to Order 10 Rule 4 of the Court of Appeal Rules 1 and is accompanied by an affidavit 1n support sworn by one Nobert Peleti, the applicant here in. 2 . 0 . Background 2.1. The brief background to this application is that the applicant on or about 30th October, 2018 commenced an action by way of writ of summons and statement of claim against the 1s t respondent seeking inter-alia damages for malicious prosecution, special damages, damages for mental distress, anguish, inconvenience, interest and cost. The said malicious prosecution was at the instance of the State Police, Drug Enforcement Commission, and Anti-Corruption Commission, respectively. 2.2. After the applicant served court process on the 1st respondent, the 1st respondent advised that pursuant to section 4( 1) of the Anti Corruption Commission Act Chapter 91 of the Laws of Zambia, the Anti-Corruption Commission is a body corporate with capacity to sue and be sued in its corporate name. The applicant took the 1s t respondent's advice and filed into court an amended writ of R3 summons and statement claim and served on both the 1 st and 2nd respondent on 21 st November, 2018. Upon receipt of court process, the 2 nd respondent quickly raised a preliminary issue to the effect that the action was statute barred and the court below ruled in favour of the respondents on 29th March, 2019. 2.3. Given the circumstances, the applicant's advocate then applied for special leave for review of the ruling of the court below which application was not granted. The applicant then moved the court for an order for leave to appeal to this Court which order was also not granted. Dissatisfied with the ruling of the court below, the applicant has now renewed his application for leave to appeal before this court. 3.0. Main application. 3.1. In the affidavit in support of this application, the deponent avers that there is a likelihood for the appeal to succeed as the grounds of appeal exhibited have merit. It is averred that it will be in the interests of justice if this court grants the applicant leave to appeal so that the matter is determined on its merit. 3.2. The 1st respondent filed an affidavit in opposition sworn by one Chongo Sombo Mulenga, Acting Assistant Senior State Advocate R4 who averred that in the applicant in his affidavit in support of summons for leave to appeal, states, without specifics, that he is desirous of appealing against the ruling of the court below. The deponent avers that a perusal of the applicant's grounds of appeal exhibited in the applicant's affidavit in support of summons for leave to appeal, reveals that the applicant intends to appeal against the ruling dated 29th March, 2019 which dismissed the matter for being statute barred as well as the Ruling dated 9 th July, 2019 which denied the appellant special leave to review the Ruling dated 29th March, 2019. 3.3. It is the deponent averment that the applicant's application for leave to appeal against the ruling dated 29th March , 2019 is improperly and prematurely before court in light of the fact that the appellant did not apply for leave from the lower court to appeal against the said ruling. She averred that concerning the ruling dated 9th July, 2019 by which the lower court dismissed the applicant's application for special leave to review the Ruling dated 29th March, 2019 as well as the subsequent ruling dated 3 rd September, 2019 by which the lower court denied the appellant leave to appeal against the ruling dated 9th July, 2019, the appeal RS would be a mere academic exercise as the appeal is bereft of any prospects of success as the issues raised thereunder are settled at law. 3.4. At the hearing of the application, on behalf of the applicant, Mr. Mutale submitted that it is trite that an appeal is a party's right and th erefore a party who wishes to appeal should be allowed to exercise his right. The court was refereed to the case of Elias Tembo, John Longa Mulilita v Henry Sichembe and Lusaka City Counsil1 wherein Justice Wanki as he then was held that- "what should be borne in mind is that an appeal is a party's right. Therefore, a party who wishes to appeal should not be hindered in exercising his right." 3.5. Further, this court was referred to the case of Zambia Consolidated Copper Mines Limited v Patrick Mulemwa2 where the Supreme Court held that- "Until such time as an earlier decision of the Supreme Court is upset by the Supreme Court itself, such decision remains binding on all other courts." 3.6 . Counsel submitted that contrary to the respondents' assertions in the affidavit in opposition, review was necessary in this matter R6 because throughout the body of the ruling, the lower court was making reference to the 2 nd respondent up to the concluding paragraph where the court stated that it dismisses the application and awards costs to the 2 nd respondent. He stated that the aforesaid gives an impression that there was a typographical error hence the application for review under the slip rule. 3. 7. The court was referred to the case of Thynne (Marchioness o f Bath) v Thynne (Marquess of Bath) 3 where Hodson W in his dissenting judgment stated that- "the court had power unde r its inherent jurisdiction to amend an order of the court aft er it had been drawn up and entered, so as to make the position under it clear and free from ambiguity," 3 .8. Further, counsel submitted that contrary to the respondent's assertions, there are instances when an appellate court can reverse the finding of fact of the lower court. He prayed that leave to appeal be granted. 3. 9. I have considered the record, rulings of the lower court, circumstances surrounding this matter as well as affidavit evidence on record. I note that the ruling of the court below R7 dismissing t h e matter before it for being statute-barred and dated 29th March , 2019, neither granted nor d enied leave to appeal. In order for the applicant to appeal against the said ruling, he needs to obtain leave to appeal in th e court below and only renew such an a pplication before this court in the event that the court below denies him leave to appeal. 3.10. I also note that leave to a ppeal against the ruling of the court below dated 9 July, 2019 was denied and the applicant was on firm ground to renew the application for leave to appeal b efore this court. Counsel for the applicant has stated with emphasis that any litigant has a right to appeal. Section 12(2) of th e Court of Appeal Act provides as follows: (2) A single judge of the Court may grant leave to appeal where an appellant is denied leave to appeal by the High Court or quasi-judicial body. 1.0. Having reviewed the record, I am of the view t h at granting leave to appeal in this matter is in the interests of justice. Accordingly, I grant the applicant leave t o appeal against the ruling of the court below dated 9 th July, 20 19. Leave to appeal against the ruling of R8 the lower court dated 29 th March, 2019 is denied as the same is not properly before this court. Costs will be in the cause. Dated this 19th day of December, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.