Richard Musukwa and Ors v The Attorney General (Appeal No.03/2025) (19 September 2025) – ZambiaLII

__.J_U~1£__~A-R'I_' _ THE SUPREM COURT FOR EAL No. 03/2025 £.ttJlYJoD 1 9 SEP 2025 HOLDEN AT N OLA - ·- - -- SCZ/8/14/2024 (Civil Jurisdiction) IN THE MATTI R OF: (2) of the Constitution of Zambia IN THE MATT · R OF: Article 11, 16, 17 and 18 of the Constitution of Zambia IN THE MATTER OF: Section 52, 53 and 58 of the Narcotic Drugs and Psychotropic Substance Act, IN THE MATTER OF: Section 118 of the Criminal Procedure Code Act Chapter 88 Volume 7 of the Laws of Zambia AND IN THE MATTER OF: The Protection of Fundamental Rights Regulations, 1969 BETWEEN: RICHARD MUSUKWA 1 ST APPELLANT JENALA LUNGU 2ND APPELLANT JACQUELINE MUSUKWA 3RD APPELLANT KUMAPILI HOTEL LIMITED 4TH APPELLANT MWANANGWA RESOURCES LIMITED 5TH APPELLANT TACHIZYA COMPANY LIMITED 6TH APPELLANT TWENTY-FOUR SEVEN STAND-BY SECURITY LIMITED 7TH APPELLANT I AND THE ATTORNEY GENERAL RESPONDENT CORAM: Malila CJ, Kaom a and Chisanga JJS on 2nd September, 2025 and 19th September, 2025 R2 For the Appell · nts: Mr. Jonas Zimba of Messrs Makebi Zulu Advocates For the Respondent: Mr. Marshal{ M. Muchende SC, Solicitor General, with Ms. C. Mulenga: Chief State Advocate; Ms. Ndanji Ketty Chango, Prir[,cipal State Advocate; Mr. K. Chipulu, Acting Principal State Advocate; Mr. Shongela Watopa, Acting Principal State Advocate and Mr. J. Akapelwa, Director Legal - Drug Enforcement Commission. RULING Malila, CJ delivered ruling of the Court. Cases referred to: 1. Thelma Maunga v. Anti-Corruption Commission and Attorney General (Appeal No. 5 of 2024) 2. Ronald Kaoma Chitotela v. Anti-Corruption Commission and 3 Others (Appeal No. 10/2025) Other work referred to: 1. High Court Act, Chapter 27 of the Laws of Zambia 1.0. BACKGROUND 1.1. This appeal was heard at Ndola on the 4th March 2025. The parties' learned counsel gave their final submissions as to whether the judgment of the High Court (Economic and Financial Crimes Division) gi~en on 13th November 2024 should be uphe~d or overturned. R3 1.2. At the earing of the appeal on 4th March 2025 none of the parties raised any issue as to. the propriety of the handling of the malter by the Economic and Financial Crimes Division of the High Court, nor did the court suo moto address its mind to I . the issue. The judgment of the court was reserved to a date to I . • be notified to the parties. 2.0. NEW DEVELOPMENTS 2.1. While the reserved judgment in this matter was being prepared, the court, on 17th April 2025, delivered its judgment in the case of Thelma Maunda .v. Anti-Corruption. Commission and Attorney Generali 11. 2.2. The Thelma Maunga111 appeal, like the present one, arose from a petition taken out by the appellant in the High Court under the Bill of Rights, alleging violation of certain fundamental human rights in the manner in which the appellant was treated by law enforcement agencies ~s the latter pursued corruption related investigations. 2.3. As a fundamental rights and liberties case, the petition in the Thelma Maunga11 l case was filed in the General Division of the R4 High C • urt; was given a General Division cause number out of the Principal Registry and was subsequently allocated to ajudge in the General Division of the High Court. I 2.4. Owing o the historical genesis of the matter in the economic and financial crimes sphere, an administrative decision was made by the Judge-in-Charge of the General Division that all such mi tters should be refe rred to the Economic and Financial Crimes Division and that they be hand~ed by High Court judges in that Division. The .judges of that Division in due course proceeded to hear the parties and delivered a judgment which was challenged on appeal in the Supreme Court. 2.5. In our judgment in that case, our pre-occupation was with the manner in which the case docket had moved from the initial filing of the petition in the Principal Registry under a specific General Division cause number, to its allocation by the Judge in-Charge to a judge in the General Division, to the return of the docket to the Judge-in-Charge after preliminary hearings by the judge allocated to hear the matter ·in the General Division, to the transfer of the matter to the Judge-in-Charge, Economic RS and Fi ancial Crimes Division where the matter was finally heard on the merits by a panel of three judges of the High Court, Econo11ric and Financial Crimes Division. 2.6. We noted in our judgment'in Th.elma Maunga11l, that the appellant had, through her counsel, protested the hearing of the matter by a court which carried 'criminal connotations' when what was involved was the determination of possible violations of the Bill of Rights. That matter was only heard after counsel was pacified by the court's insistence that it had jurisdiction. 2.7. Our concern on appeal in that matter was the movement of the docket from the judge initially allocated the file in the General Division to where it ended up in the Economic and Financial Crimes Division. We noted that the movement did not comply with the legal requirements which direct, among other things, that there be an order of transfer by the judge transferring the docket as well as the consent of the transferee judge. 2.8. In specif~c terms, we observed and held in that case as follows: ... the matter was not transferred in accordance with the law as laid down in section 23 of the High Court Act, Chapter 27 of the R6 LJws of Zambia. . The transfer was irregular. The implication of the irregularity was that the court that heard the petition had n[ jurisdiction to hear it. 2.9. On the 13th August 2025, we were faced with another case with similar facts. In the case of Ronald ~aoma Chitotela v. AntiCorrupt on Commission and 3 Othersl2l the same protest as in Thelma Maungal1l was launched. The petition in the High Court was filed under the Bill of Rights by the appellant. 2.10. It was transferred under similar circumstances as in Thelma I Maungal1l. Despite the protests of the petitioner the petition was heard by the Economic and Financial Crimes Division of the High Court. 2.11. On appeal, we stated as follows: As in Thelma Maungaf1J, we held that the transfer or allocation of the case to the EFCC was irregular. In the result, the EFCC lact ed jurisdiction to hear the matter. In consequence the judgment of the court is hereby quashed. We order that the matter be remitted to the High Court to be heard in the General Division under the original cause number. R7 3.0. THE UN ENIABLE PARARELLS WITH THE CURRENT APPEAL 3.1. We have already intimated that here too, the judgment appealed against was on a human rights petition, heard and determined by the Economic and Financial Crimes Division of the High Court. The petition was taken out in the General Division at the Principal Registry. There was no complaint regarding the filing of the matter or the movement of the docket. No issue of irregularity in the transfer of the case file was alleged, or at any I rate considered by the court below, nor was any raised before us at the hearing. 3.2. However, we noted from the history of the movement of the case file that it followed the same pattern as the Thelma Maunga111 and the Ronald Chitote1at21 case dockets. As that movement implicat~d the jurisdiction of the court that heard the matter at trial, we had no option but to call the parties as we did on the 2nd of September 2025, to explain why no judgment on the merits in this matter was to be delivered by this court. I . 3.3. We took the liberty to inform the parties of the status of an appeal against a judgment delivered by a court which is R8 destitute of jurisdiction. We, thus, ordered and directed that the ma \ er be referred to the High Court General Division to be heard resh by a judge of that Division under the original cause This 1s consistent with the two similarly circumstanced cases we have alluded to. 3.4. We directed that costs shall be in the cause. umba Malila CHIEF JUSTICE F. M. Chisanga SUPREME COURT JUDGE