MULUBISHA V ATTORNEY GENERAL (2018/CCZ/0013) [2020] ZMCC 18 (20 September 2020)

' I IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA 2018/CCZ/0013 (CONSTITUTIONAL JURISDICTION) IN THE MATTER OF: AND IN THE MATTER OF: BETWEEN: 165 OF THE ARTICLES 1 AND CONSTITUTION OF THE REPUBLIC OF ZAMBIA THE OF CONSTITUTIONALITY SECTIONS 3, 4, 5, 6 AND 7 OF THE CHIEFS ACT, CHAPTER 287 OF THE LAWS OF ZAMBIA F:CPUDLIC Ot: ,7uM~r.a, ( ~- . !:,;·; ..:r1C1/'1Al 1"0ur, l 1,;f, ~AMBIA _________ ,,, WESBY MULUBISHA l i·~, l ~ ... ( THE A HORNEY GENEt ~ ,-_'.: o ~~~~~o~ c L-l:.:l ,_,.,_, "" AND ..--- • f L1°A I .c.!>. usAKA PETITIONER RESPONDENT CORAM: Chibomba, PC, Mulen~a and Musaluke, JJC. On 15th September, 2020 and 30t September, 2020. For the Petitioner: Mr. C. K. Bwa lya of D. H. Kemp and Company. For the Respondent: Mrs . D. M. Shamabobo, Principal State Advocate. RULING Chibomba, PC, delivered the Ruling of the Court Case Cited: 1. Steven Katuka and Law Association of Zambia v The Attorney General and Ngosa Siml;>yakula and 62 others, Selected Ruling No. 25 of 2019 Legislation referred to: R1 1. Section 5 of the Constitutional Court Act, 2016 (Statutory Instrument No. 8 of 2016). 2. Order 1 and Order XV (3)(1) and (7) of the Constitutional Court Rules, 2016 (Statutory Instrument No. 37 of 2016). 3. Order 14A of the Rules of the Supreme Court, 1965 (1999 Edition). By a Notice of Motion to Raise Preliminary Issues, the Petitioner raises two preliminary issues as follows:- 1. That the Summons for Leave to file Notice of Motion to Correct Accidental Omission is inconsistent with and contrary to the Order made in the Ruling of the Honourable Single Judge of the Court of 24th April 2020;and 2. That the said Summons is incompetently before this Honourable Court on account of the order of the Honourable Single Judge made in the Ruling of 24 April 2020. The Notice of Motion was filed pursuant to Order 1 of the Constitutional Court Rules (CCR) and Order 14A of the Rules of the Supreme Court, 1999 Edition (the Whitebook ). Order 1 of the CCR provides for the application of English practice and procedure where our own rules are silent, whilst Order 14A of the Whitebook provides for disposal of a case on point of law. The background leading to this Notice of Motion to Raise Preliminary Issues is that on 2ih November, 2019 this Court delivered final Judgment in this matter in which the Court declared sections 3, 4, 5, 6 and 7 of the Chiefs Act, Chapter 287 of the Laws of Zambia to be inconsistent with Article 165 of the Constitution as amended and therefore unconstitutional. R2 '\ The Respondent, on 23rd March , 2020 filed Summons for Special Leave to Extend Time within which to file a notice of motion for leave to correct accidental omissions in the said Judgment. The Respondent, referred specifically to page J20 of the said judgment whereunder this Court stated that:- It is for each particular chiefdom to follow their established customary system of selecting and removing a chief. The Petitioner opposed the application for special leave to extend time within which to file the Notice of Motion in question on ground that a period of 117 days had lapsed from the date of the final judgment of this Court. The single Judge heard the application. However, in the Ruling dated 24th April , 2020 the single Judge granted the Respondent the application for extension of time on condition that the Respondent files the "relevant" application before the full Court within seven (7) days and in default thereof, the application would stand dismissed. Armed with this order, the Respondent, on 30th April, 2020 filed Summons for Leave to File Notice of Motion to Correct Accidental Omission. The Summons was filed pursuant to Order XV Rule 3(1 ) of the Constitutional Court Rules (CCR) and _ was accompanied by an Affidavit in Support and Skeleton Arguments . R3 Displeased with the application filed by the Respondent, the Petitioner as aforestated, filed the Notice of Motion in question raising the two preliminary issues cast above. At the hearing of the Notice of Motion to Raise Preliminary Issues, the learned Counsel for the Petitioner, Mr. Bwalya, relied on the affidavit in support of the Notice of Motion and Skeleton Arguments filed which he augmented by oral submissions. The sum total of Mr. Bwalya's oral submissions and the arguments advanced in the Petitioner's Skeleton Arguments is that the application that the Respondent filed on 30th April , 2020 should be dismissed on ground that it is incompetently before this Court and that it is not the application that the single Judge allowed the Respondent to file. Counsel argued that what the Respondent filed is not the appropriate application within the meaning of the extension of time that the single Judge granted. To support the above contention , Mr. Bwalya referred to the Summons filed by the Respondent at pages 27 and 28 of the Record of Proceedings which is titled :- Summons for Leave to file Notice of Motion to Correct Accidental Omissions. R4 When prodded by this Court to clarify his point, Mr. Bwalya submitted that what the Respondent is seeking by the summons is for leave to file the notice of motion to correct an accidental omission but that Order XV, Rule 3 of the CCR provides that the correction can be made with the leave of the Court. Therefore, according to Counsel, the appropriate application is not for permission from the Court to file the notice of motion but that within the period prescribed , the appropriate application is for leave to correct and not leave to file an application. Mr. Bwalya further submitted that the Respondent's application must be distinguished from an application where a party to a matter wishes to reopen a case. In support of the aforestated contention , the case of Steven Katuka (Suing as Secretary General of the United Party for National Development) and Law Association of Zambia v Attorney General, Ngosa Simbyakula & 62 Others 1 was cited as authority for the requirement of leave of the Court to reopen a matter and that it is only after a matter is reopened that a party can file an application they desire. However, that in the current matter, it is limited to merely correcting accidental omissions and that correction can only be made by the Court through an application for leave to correct not as filed by the Respondent an application for leave to file an application. RS • He, thus, concluded by stating that the Summons in question should therefore be. dismissed with costs to the Petitioner. In opposing the Petitioner's Notice of Motion to Raise Preliminary Issues, the learned Principal State Advocate , Ms. Shamabobo, relied on the Respondent's Affidavit in Opposition to the Notice of Motion to Raise Preliminary Issues and on the Skeleton Arguments filed. She augmented them with oral submissions. In a nutshell , Ms, Shamabobo's oral submissions and arguments in the Respondent's Skeleton Arguments is that the Respondent's application that was filed on the 23rd March, 2020 was to extend time within which the Respondent was to file its application for leave to file a notice of motion to correct an accidental omission under Order 15, Rule 3 of the CCR. And that the single Judge, on 24th April, 2020 granted that application. To buttress her position, Ms Shamabobo referred us to page R8 of the Ruling of the single Judge and in particular, to paragraph 2, where the learned single Judge stated as follows:- I am mindful also that consideration of the question whether leave should be granted to invoke the slip rule and whether such leave would _cause prejudice to the respondent can only be determined in the event that this application is granted. R6 • Counsel submitted that the leave that the single Judge granted in her Ruling was not leave for the Respondent to file the notice of motion to correct the accidental omission but rather, it was an extension of time within which the Respondent was to file the application for leave to file the notice of motion to correct accidental omission. She, thus, prayed that the Petitioner's Notice of Motion to Raise Preliminary Issues be dismissed with costs to the Respondent. In reply, Mr. Bwalya submitted that the contention by the Respondent that the application before the single Judge was for an extension of the period within which to apply for leave to file a notice of motion , is not correct. Counsel reiterated his position that the extension granted by the single Judge, required a follow up application by way of a notice of motion to correct an accidental omission in the Judgment. We have considered the issues raised in the Petitioner's preliminary issues and the submissions of Counsel. Having carefully examined the arguments made by both parties, it is our firm view that the question that falls for our consideration is what application did the learned single Judge allow the Respondent to file. To ably determine this question , we have to consider the rules of court that regulate how a party who wishes to have a final judgment of the court corrected should proceed together with the decision of the single Judge that what she was R7 • granting was not leave to file notice of motion but leave to extend time for the Respondent to file the relevant application. Order XV Rule 3 (1) of the CCR allows a party, within 7 days of the delivery of the judgment or decision of the Court, to apply for leave to correct errors arising from any accidental slip or omission by the Court in a judgment. However, where the 7 days stipulated for making such an application under Order XV Rule 3(1) has lapsed, Order XV Rule 7 allows the Court to extend the time limited by the rules or by a decision of the Court, except where time is specifically limited by the Constitution , for making such an application. In the current case, the Respondent, not having filed their application for leave to correct accidental slips or omission in the judgment in question within the prescribed 7 days, filed an application for special leave to extend time within which to file a notice of motion for leave to correct accidental omission as allowed by Order XV rule 7. The learned single Judge who heard the application granted leave to the Respondent to file the relevant application before the full Court within seven (7 ) days of that order. The Respondent, on 30th April , 2020 filed Summons for Leave to File Notice of Motion to Correct Accidental . Omission pursl!ant to Order XV Rule 3(1) of the CCR which the Petitioner, by this Notice of Motion to Raise Preliminary Issues, has contended is incompetently before this Court and should be dismissed R8 as this is not the correct application for which the single Judge granted leave to the Respondent to file. In view of the above provisions of the CCR as outlined above, we find that the Petitioner has misapprehended the order of the single Judge as regards the relevant application that the single Judge allowed the Respondent to file. In Steven Katuka 1 case, this Court held that a party is required to obtain leave of this Court before filing a notice of motion to set aside or reverse parts of a Judgment. We reiterate this position in the current case. We thus find the application that the Respondent filed on 30th April , 2020 to be in consonance with the above cited rules of Court as the Respondent is required to first obtain leave of the full Court to file an application to correct the alleged error or omission in its final Judgment. This is based on the fact that since the judgment in question was rendered by the full Court, it is the full Court that should consider whether or not the leave sought should be granted before the Respondent could apply to correct the alleged accidental slips or omissions in its judgment. The learned single Judge in her Ruling was conscious of this fact, as section 5 of the Constitutional Court Act states that a single Judge of the Court may exercise a power vested in the Court not involving the decision of an appeal or a final decision in the exercise of its original jurisdiction . We reiterate that as per page R8 of R9 the ruling , the single Judge clearly stated that what she was granting was not leave to file notice of motion but leave to extend time. lnfact, the Court had at the hearing of this matter to prod Counsel for the Petitioner to state what he thought, in terms of the order of single Judge was the relevant applicationas he never stated this in the Petitioner's Skeleton Argument or in his oral submissions. We, would thus, be failing in our duty if we did not express our displeasure at the conduct of Counsel for the Petitioner of rushing to file this application which could easily have been verified from the single Judge if at all he had any difficulties with the order of the single Judge. In sum, we find no merit in the two preliminary issues raised and we accordingly dismiss the Notice of Motion to Raise Preliminary Issues. In the circumstances of this case, we order that each party bears own costs. H. Chibomba President Constitutional Court ·· ··· ····~ · ·· ····· ·· · · ······ M. S Mulenga Constitutional Court Judge Constitutional ourt Judge luke RlO