Sean E. Tembo v Attorney-General (7 of 2018) [2019] ZMCC 1 (14 February 2019)

. ,., . Rl IN THE CONSTITUTIONAL COURT OF ZAMBIA 2018/CCZ/0007 HOLDEN AT LUSAKA BETWEEN: AND ETITIONER THE ATTORNEY GENERA RESPONDENT Coram: Sitali, Munalula and Musaluke JJC on 13th February, 2019 and 14th February, 2019. For the Petitioner: For the Respondent: Chief State Advocate, Mr F. Mwale Principal State Advocate and Mr C. Mulonda Senior State Advocate, all of the Attorney General's Chambers. In person. Mr L. Kalaluka, Attorney General with Mr J. Simachela Munalula JC delivered the ruling of the Court. RULING Cases referred to: 1. Rosemary Bwalya, The Attorney General and The Commissioner of Lands v Mwanamuto Investments Limited SCZ Judgment No. 8 of 2012 2. B. P. Zambia PLC v Zambia Competition Commission, Total Aviation and Export, Total Zambia Limited SCZ Judgment No. 22 of 2011 Legislation referred to: The Constitutional Court Rules, S. I. No. 37 of 2016 Work referred to: The Rules of the Supreme Court (White Book) 1999 Edition R2 This Ruling relates to an application by the Petitioner herein brought under Order IX Rule 20(1) and Order X Rule 3 (1) of the Constitutional Court Rules (henceforth "the CCR) to discontinue the Petition filed on 15th June, 2018. The Petitioner filed the Notice to Discontinue suit on 13th December, 2018 and followed it up with the Summons to Discontinue Matter and Affidavit in Support of Summons to Discontinue Matter filed on 8th January, 2019. The Petitioner deposed in the Affidavit that the matter should be discontinued in order to pave way for the on-going national dialogue and reconciliation process which he said was in the interest of the nation as a whole. At the hearing the Petitioner provided a synopsis of the contents of the Affidavit in Support of Summons to Discontinue Matter. On 11th January, 2019, the Respondent filed an Affidavit in Opposition to the Summons to Discontinue Matter together with Skeleton Arguments and List of Authorities which they augmented at the hearing. The Respondent opposed the application on the grounds that the Petitioner had failed to show a correlation between the Summons to Discontinue Matter and the on-going national dialogue and reconciliation process, a point which was elaborated on at the hearing. The Respondent further averred that the Application was motivated by the R3 dismissal on 281 h November, 2018 of the Petitioner's ex parte application to subpoena witnesses. And, that in the event that the national dialogue and reconciliation process failed, an action based on the same facts, may be instituted to the prejudice of the Respondent. Finally, the Respondent averred that the Petition was politically motivated and therefore an abuse of the Court process contrary to Order 18 rule 19 ( 18) of the Rules of the Supreme Court (White Book) 1999 Edition. That ss such the Petition should not be discontinued, but dismissed with costs as provided for under Order X Rule 3 (3) of the CCR. In his lengthy Affidavit in Reply to the Respondent's Affidavit in Opposition to Discontinue Matter which he condensed at the hearing, the Petitioner maintained that discontinuance of the matter was vital for creating a conducive environment for the success of the national dialogue and reconciliation process as the issues raised in the Petition are among · the issues to be tabled during the said dialogue process. That a successful national dialogue and reconciliation process could result in the amicable resolution of several grievances between political leaders. The Petitioner argued in the alternative, that it was a fallacy to assume that his case may have collapsed because of the dismissal of the ·; R4 application to subpoena witnesses. He averred that some of his witnesses were ready to testify and his objective in seeking subpoenas was to assure an orderly and efficient trial process. That if the Respondent could not discern the correlation between the necessity to withdraw the action and the success or failure of the national dialogue and reconciliation process then he was prepared to withdraw the application and proceed to trial. We have considered the application before us and the affidavits on either side as well as the arguments filed by the Respondent. The issue as we see it is whether the Respondent can stop a Petitioner who no longer wishes to pursue a matter from discontinuing it or from ever raising it again by arguing that the reasons given for discontinuance are unsatisfactory and that the entire action is an abuse of court process. We find it convenient at this point to cite in full, Order X rule 3 of the CCR on discontinuance of an action. It reads: 3(1) A Petitioner or an Applicant may, at any stage before judgment, on notice to the Court and to the Respondent, apply to discontinue a matter instituted under the Act. (2) The Court may, subject to an order regarding costs, allow the discontinuance or withdrawal of the matter. , RS (3) Where the Court declines to grant an application to discontinue a matter, the Court shall give directions on the further conduct of the matter. It is clear from the foregoing that an application to discontinue a matter can be made at any stage of the proceedings before judgment by way of notice to the Court and the other party. The Rules do not provide for the giving of reasons. Rather, the discontinuance is subject to the discretion of the Court and an order regarding costs. It is for the Court to decide whether to grant the application for discontinuance or to decline it in which case the Court is to give direction as to how the matter is to continue under trial. The Court has a discretion which is exercised on a case by case basis depending on the facts before it. However, the said discretionary power ought to be exercised judiciously and for good reason. In this regard we wish to cite with approval the holding of the Supreme Court in the case of Rosemary Bwalya, The Attorney General and The Commissioner of Lands v Mwanamuto Investments Limited 1 that " ... discretionary power must be exercised judiciously and for good and convincing reasons." After all due consideration, we find no compelling reasons for declining the Petitioner's application. We say so because this matter has 'J R6 not yet been heard substantively. The Petitioner has duly complied with the requirement to notify both the Court and the other party. Further, we find no merit in the Respondent's argument that the Petition should be dismissed as granting the said discontinuance may lead to a fresh action in the future which would prejudice the Respondent. The claim is purely speculative at this time and as such cannot be considered by the Court. For the reasons given above, the Application to discontinue the Petition filed by the Petitioner on 15th June, 2018 is granted. We now turn to the issue of costs which, again, lies within the discretion of the Court. For convenience we wish to re-cite Order X Rule 3 (2). It reads: 3 (2) The Court may, subject to an order regarding costs, allow the discontinuance or withdrawal of the matter. The Rule as framed does not fetter the Court's discretion in determining questions of costs. Rather, the Rule entails that the Court's discretion to grant a discontinuance is accompanied by consideration of the issue of costs. In the case of B. P. Zambia PLC v Zambia Competition Commission, Total Aviation and Export, Total Zambia Limited 2 the Supreme Court stated, and we agree, " ... that cost~ are in ' ' R7 the discretion of the Court ... this discretion should be exercised judiciously and with caution." We have seriously considered the issue of costs in this case. It is our decision that this is not a fitting case in which to award costs against the Petitioner. Each party therefore, shall bear their own costs . ... ~ · AM Sitali Constitutional Court Judge ....... ~ ......... . MM Munalula 0.. ,v\ . ............ , .. ,. ··1·· M Musaluke Constitutional Court Judge Constitutional Court Judge