Shaba v Lungu and Anors (CCZ 11 of 2021) [2022] ZMCC 45 (24 June 2022)

IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA (Appellate Jurisdiction) 2021/CCZ/A0011 IN THE MATTER OF: BETWEEN: SHABA LAWRENCE LOCAL GOVERNMENT ELECTION PETITION FOR COUNCIL CHAIRMAN IN THE LUANGWA DISTRICT OF THE LUSAKA PROVINCE HELD ON 12th AUGUST, APPELLANT RESPONDENT ND RESPONDENT goti JJC on 20th May, LUNGU ARTHUR ELECTORAL COMMISSION OF Coram: Sitali, Mulonda, Munalula, Chisunka an 2022 and 24th June, 2022 For the Appellant: Mr L. C. Lemba and Mr N. Siwila of Messrs Mulungushi Chambers. For the 1st Respondent: Ms M. Mwiinga of Messrs James and Doris Legal For the 2nd Respondent: Mr M. Bwalya, In house counsel, Electoral Commission of Practitioners Zambia RULING Munalula, JC. Delivered the Ruling of the Court. Cases Cited: 1. Zamtel Co. Ltd v Mutawa Liuwa SCZ No. 16 of 2002 2. Kennedy Katongo v Peter Chanda 2021/CCZ/A0013 3. Access Bank (Zambia) Limited v Group Five ZCON Business Park Joint Venture SCZ Judgment No. 52 of 2016 4. Kapoko v the People CCZ No. 23 of 2016 5. Margaret Mwanakatwe and Another v Charlotte Scott and Another Appeal No. 14 of 2016 6. Philip Mutantika v Kenneth Chipungu SCZ Judgment No. 13 of 2014 7. Allen v Sir Alfred McAlpine and Sons Limited [1968] 2Q. B. 229 8. Stanley Mwambazi v Morester Farms Limited (1977) Z. R. 108 9. Birkett v James [1978] A. C. 297 Potipher Tembd .v Tasila Lungu 2021/CCZ/A0040 lO. 11. Sydney Chisanga v Davies Chisopa 2021/CCZ/A0027 Legislation Referred to: Constitutional Court Rules Statutory Instrument No. 37 of 2016 R2 [1] This is a Ruling on a Motion filed by the 1st Respondent seeking dismissal of an election petition appeal referred to below as the “main matter”. The main matter which was originally scheduled for hearing in the January session of the Court was delayed for reasons which are sufficiently narrated in the brief background that follows. [2] The background to the Motion is that the main matter came to us by way of an appeal against a decision rendered by the Local Government Election Tribunal, sitting at Luangwa District in Lusaka Province and delivered on 24th September, 2021, in which the Tribunal nullified the election of the Appellant as Council Chairperson for Luangwa District. [3] The Appellant filed his Notice and Memorandum of Appeal on 8th October, 2021. On 19th November, 2021, by way of ex parte order, the Appellant was granted leave to file his record of appeal out of time, which leave was capped at 14 days from the date of the ex parte order. The record of appeal was filed on 6th December, 2021. The filing did not include the Appellant’s heads of argument. [4] The appeal was set for hearing on 20th January, 2022 and when it was duly called on that day, Ms Nambao, the Appellant’s counsel, indicated that they were not ready to proceed because there was an application by the 1st Respondent to have the appeal dismissed for want of prosecution. R3 [5] Ms Mwiinga, counsel for the 1st Respondent, rose on the point that they had filed an application to dismiss the appeal for failure to file heads of argument with the record of appeal. Furthermore that the record of appeal ought to have been filed on or before 4th December, 2021 pursuant to the ex parte Order to file record of appeal out of time made by the Single Judge. They sought an adjournment to enable the application proceed to hearing which was not opposed. The matter was then adjourned for scheduling of the application before the Single Judge. [6] On 1st February, 2022, the 1st Respondent filed the record of motion to dismiss appeal for failure to file heads of argument together with the record of appeal. On 29th March, 2022, the 1st Respondent filed a supplementary record of motion. The matter was heard on 20th May, 2022 during the ordinary session of the Court. [7] In the affidavit in support of the summons to dismiss appeal for failure to file heads of argument together with the record of appeal sworn by counsel for the 1st Respondent Ms M. Phiri, it was deposed that the record of appeal filed on 6th December, 2021 and marked “MP1” was not accompanied by the heads of argument as required by law. That they did write to the Appellant’s advocates, which letter is marked “MP2". That by virtue of the search form marked “MP3” a search was conducted on the court file on 13th December, 2021. That to date no heads of argument R4 have been filed. The 1st Respondent, it was argued, had suffered prejudice as his advocates were unable to start compiling his heads of argument in response. [8] In the accompanying skeleton arguments, the 1st Respondent referred us to Order XI rule 5 of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016 (henceforth “the Rules”). It was contended that the Appellant ought to have filed the record of appeal together with the heads of argument as the same is a mandatory requirement. That Order XI rule 6 of the Rules clothes this Court with the power to grant the order and dismiss the appeal. We were further referred to the case of Zamtel Co. Ltd v Mutawa Liuwa1 as authority that an appellant who waits until an application to dismiss their appeal has been raised in order to seek an extension of time does so at their own peril. That the Appellant is in breach of Order XI rule 5 of the Rules. [9] At the hearing, Ms Mwiinga relied on the affidavit and skeleton arguments filed on 13th December, 2021 and the affidavit in reply and skeleton arguments in reply filed on 21st January, 2022. She began by contending that the critical facts in this case are the same as those in Kennedy Katongo v Peter Chanda2 in which we dismissed the appeal by the Appellant for failure to file the heads of argument together with the record of appeal. She urged the Court to be consistent in applying the R5 Rules and cited the Supreme Court case of Access Bank (Zambia) Limited v Group Five ZCON Business Park Joint Venture3 wherein the appeal was dismissed for failure by the Appellant to amend a defective record of appeal. [10] Ms Phiri co-counsel for the Appellant, contended that neither Article 118(2)(e) nor the case of Kapoko v The People4 intend to do away with rules. The cases of Margaret Mwanakatwe and Another v Charlotte Scott and Another5 and Philip Mutantika v Kenneth Chipungu6 were further cited in support of the argument that failure to file the record of appeal with heads of argument warrants dismissal. She prayed for costs. [11] Counsel for the Appellant Mr Lemba, filed an affidavit in opposition to the summons to dismiss the appeal for failure to file heads of argument together with the record of appeal. It was deposed that the record of proceedings of the Local Government Elections Tribunal was only given to the Appellant much later after the ex parte order was granted. That there was not enough time within the fourteen days granted in which to return the court proceedings for correction. That it was difficult to prepare the heads of argument as the court proceedings do not have the questions to the answers that the respondent was answering to. That the questions are important for the appellate court to take note of. R6 [12] We were referred to line 9 at page 97 of the record of appeal marked as exhibit “NM1” to show the anomaly. It was further deposed that there had been no inordinate or inexcusable delay in filing the heads of argument and the 1st Respondent would not be prejudiced if the said heads of argument were filed out of time. [13] In the accompanying skeleton arguments, it was contended that want of prosecution necessitates that a case ought to be inactive for a great length of time with neither party being active. That it can only stand where both the record of appeal and the heads of argument have not been filed. That the ex parte application and the filing of the record of appeal shows there was activity. [14] We were referred to the case of Allen v Sir Alfred McAlpine and Sons Limited7 to explain that inexcusable inordinate delay is the natural inference until a credible excuse is made out. It was contended that the reasons for not filing the heads of argument with the record of appeal were logical and justifiable as the proceedings were only received six days before the expiration of the ex parte order. That there is no serious prejudice on the part of the Respondent as the court proceedings are incomplete and what is missing, would be beneficial to the Respondent and the Court in arriving at a proper decision on the merits of the case. R7 Article 118 (2) (e) and the case of Kapoko v the People4 were cited in support. [15] We were further referred to the case of Stanley Mwambazi v Morester Farms Limited8 in support of an order for costs as opposed to denial of a hearing of the case. That as the delay was attributable to the Local Government Elections Tribunal, this was not a proper case for dismissal of the appeal for want of prosecution. [16] In his oral submissions at the hearing Mr Lemba relied on the affidavit in opposition to the summons and accompanying skeleton arguments which were filed on 5th January, 2022. He began by distinguishing the case of Kennedy Katongo2on the basis that herein there is an application to file the heads of argument out of time. It was contended that Order XI rule 5 also requires the filing in of electronic copies of the appeal and heads of argument and yet failure to comply has not stopped the court from hearing matters. That the Court can invoke its discretion to grant the application only after satisfying itself that the principles have been met. [17] It was reiterated that there had been no inordinate delay and the case of Birkett v James9 was cited in support. Further, that the delay was not inexcusable nor would the Respondent suffer any prejudice. Emphasis was laid on the newness of the Local Government Election Tribunals as a reason fortheir inefficiency. R8 [18] The 2nd Respondent did not file any process in relation to the Motion or make any submissions on the issue. [19] The 1st Respondent filed an affidavit in reply in which it was contended that the Appellant’s response consisted of mere excuses as the proper course would have been to apply for a further extension of time. That having filed the record of appeal within time, the Appellant could have compiled the heads of argument. That there was inordinate and inexcusable delay rendering the appeal improperly before Court. That the 1st Respondent would be greatly prejudiced if leave to file the heads of argument out of time was granted as the alternative would delay his enjoyment of the fruits of the Judgment of the Tribunal. That the appeal was ripe for dismissal. [20] In the combined list of authorities and skeleton arguments filed on 21st January, 2022, it was contended that Order XI rule 6 applies to a situation in which there is a failure to file both the record of appeal and heads of argument together. We were referred to Order XI rule 5 in support of the claim that there is no option to file the record of appeal without the heads of argument as they must be filed together. [21] The case of Allen v McAlpine and Sons Limited7 was distinguished for this reason. It was said that as the defect was incurable an order for extension of time under the Rules was inapplicable. Further that as an R9 invariable mandatory provision was in issue, Article 118 (2) (e), Kapoko v the People4 and Stanley Mwambazi v Morester Farms Limited8 were all irrelevant. [22] In the oral submissions in reply, Ms Mwiinga maintained that their application is based solely on the failure to file heads of argument at the same time as the record of appeal as required by the Rules, which was not done. That the provision is mandatory therefore the principles relied upon by the Appellant do not apply. It was also contended that the reference to the newness of the Tribunals was irrelevant [23] We have considered the 1st Respondent’s Summons to dismiss appeal for failure to file heads of argument together with the accompanying affidavit in support, skeleton arguments and oral submissions. We have equally considered the Appellant’s affidavit in opposition together with written and oral submissions. Finally, we have considered the affidavit in reply and supporting submissions, both written and oral. [24] The bone of contention is whether the appeal ought to be dismissed for failure on the part of the Appellant, to file the heads of argument together with the record of appeal as required by Order XI rule 5 of the Rules. Order X! rule 5 provides as follows: RIO Subject to rule 4 and any extension of time, the Appellant shall, within thirty days after filing a notice of appeal, lodge the appeal by filing in the Registry twenty hard copies of the record of appeal together with heads of argument and an electronic copy of the record of appeal (emphasis added) [25] To begin with the rule is expressed in mandatory terms. An Appellant is obliged to file their record of appeal together with the heads of argument within the mandated thirty days after the notice and memorandum of appeal were filed. The requirement however is subject to any extension of time. Thus the import of the rule is that whilst the Court has the discretion to enlarge time within which the said documents can be filed, such an enlargement of time must actually be granted by the Court. Where there is no enlargement of time the rule is breached if thirty days have elapsed from the time of filing the notice and memorandum of appeal. The argument of the 1st Respondent is that the rule is also breached if the record of appeal is filed without the heads of argument. [26] It is clear from the record before us that no heads of argument were filed together with the record of appeal or at all. The 1st Respondent has shown that the issue was brought to the attention of the Appellant’s advocates on 8th of December, 2021 and that a search conducted at the Constitutional Court Registry on 13th December, 2021 revealed that no Rll heads of argument had been filed. That they accordingly invoked Order XI rule 6 which provides: If an appeal is not lodged as provided in rule 5 the respondent may make an application to the Court for an order dismissing the appeal for want of prosecution, or alternatively, for such other order with regard to the appeal as the respondent may require. [27] Rule 6 empowers a respondent to apply for dismissal or for such other order as they may require. In the circumstances the Respondent seeks dismissal for want of prosecution. It is for this Court to determine whether to grant the application. [28] We have carefully perused the record of Motion. It is clear that the Appellant blames the delay in filing the heads of argument on a delay in receiving the record of proceedings from the Local Government Elections Tribunal. He therefore contends that the delay is not inexcusable and entreats us to overlook the Rules. [29] In our considered view, the Appellant’s plea misses the point. We have said before and we stand by our precedents that there must be order in the administration of justice. Hence in Potipher Tembo v Tasila Lungu10 we stated at page R16 that: We are mindful that the Applicants plea is that procedural rules should not render us overly legalistic in the manner in which we approach this matter. He therefore came under Article 118 (2) (e). Applying Article 118 R12 (2) (e) in the circumstances is a misapprehension on his part. Article 118 (2) (e) is not meant to do away with rules. [30] We emphasised that this is so even where the rules constitute technicalities because rules must be in place and must be enforced if there is to be order and sanity in the justice system. Therefore where a rule proves onerous in the circumstances there are other rules that enable an orderly circumvention of the breached rule. Thus we said in Potipher Tembo v Tasila Lungu10 at page R17 that: While it is trite that a departure from the rules is possible where justice demands it, the rules themselves provide for an orderly way in which such departure can be achieved. [31] We are of the firm view that there must be an orderly way in which a failure to comply with the Rules is resolved in order to avoid uneven application of rules, uncertainty and the perception of injustice that will follow. Rules, enable the administration of justice by the Court to be systematic, consistent and predictable. [32] It follows that there are inbuilt provisions within rules to take care of situations in which a departure from more specific rules is called for. In the case of the rule in issue, that is rule 5 of the Rules, it states quite clearly that it is subject to an extension of time. Thus the orderly way in which to take care of any consequential delays arising from the Tribunal’s alleged tardiness was for the Appellant to apply for enlargement of time to enable R13 him to file the heads of argument together with the record of appeal. He did not do so. [33] In our considered view, this case is similar to the case of Kennedy Katongo v Peter Chanda2 wherein we stated that in view of the mandatory nature of Order XI rule 5 of the Rules, and the default in the manner of lodging the appeal, the appeal was defective and we accordingly dismissed it. This appeal must suffer the same fate. [34] Furthermore, it is inescapable that the record of appeal was filed outside the time provided by the ex parte order of 19th November, 2021. It is clear from the record of Motion that no extension of time was obtained by the Appellant. This in itself is a problem. [35] In the case of Sydney Chisanga v Davies Chisopa11 we held that the failure by the Appellant to obtain leave to file the record of appeal out of time went to the very core of the appeal before Court and was not a mere procedural technicality. Therefore the appeal was incompetently before the Court and as such there was no appeal to consider. [36] On the basis of what is before the Court, we can see no orderly way in which to keep the main matter alive. We are of the firm view that the Motion to Dismiss the Appeal has merit. We therefore uphold it and order that the main matter be dismissed forthwith. R14 [37] In view of the nature of the appeal, we order that each party bear their own costs. A. M. SITALI CONSTITUTIONAL COURT JUDGE P. MULONDA CONSTITUTIONAL COURT JUDGE M. NI. MUNALULA (JSD) CONSTITUTIONAL COURT JUDGE M. K. CHISUNKA CONSTITUTIONAL COURT JUDGE J. Z. MULONGOTI U CONSTITUTIONAL COURT JUDGE