Chulu v Muteteka and Electoral Commission of Zambia (SCZ 8 51 of 2013) [2014] ZMSC 8 (11 February 2014)

[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: AND IN THE MATTER OF: AND IN THE MATTER OF: ELECTORAL CODE OF CONDUCT STATUTORY INSTRUMENT NO. 52 OF CHISAMBA PARLIAMENTARY ELECTIONS HELD IN ZAMBIA ON THE 20TH SEPTEMBER, 2011 THE PETITION FOR CHISAMBA CONSTITUENCY ELECTIONS IN THE CENTRAL PROVINCE OF THE REPUBLIC OF ZAMBIA HELD ON 20TH SEPTEMBER, 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 For the 1stRespondent: Mr. F. Besa, Messrs Besa Legal Practitioners For the 2nd Respondent: No appearance R U L I N G R1 Muyovwe, JS, delivered the Ruling of the Court. 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 R2 applicant’s application for leave to file the Notice of Appeal out of time. He stated that after 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 14 th 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. R3 In the affidavit in opposition sworn by the 1 st respondent, he stated that all the reasons advanced by Michael Rogers Tembo in the affidavit in support are an afterthought and should not be 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 R4 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 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. R5 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 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 R6 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 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 R7 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 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, R8 undeserving of the favourable treatment afforded as stated in the case of Stanley Mwambazi3. Counsel urged us to dismiss the application with costs. 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. R9 Turning to the application before us, while we agree that time within which to take certain steps can be enlarged, this, as has 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: R10 “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 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.” R11 It is, therefore, strange that when the matter came before the full bench, the reasons advanced changed. This brings the sincerity 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. R12 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 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 R13