Lasford Kayula Nkonde and 18 Ors v The Attorney General (SCZ/8/7/2015) (16 September 2021) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA SCZ/8/7/2015 HOLDEN AT LUSAKA (Civil J~risdiction)'\ BETWEEN: .. LASFORD KAYULA NKONDE AND 18 OTHERS APPLICANT AND THE ATTORNEY GENERAL RESPONDENT Coram Wood, Malila and Chinyama JJS On 10th August, 2021 and 16th September, 2021 For the Applicant: Mrs. N. Mutti with Mr. Moses Chitambala Messrs Lukona Chambers For the Respondent: Ms. D. Mbewe- Principal State Advocate and Ms. K. Mumba Assistant Senior State Advocate-Attorney General's Chambers RULING Wood, JS delivered the ruling of the Court. ., R2 Cases referred to: · (1) Manal Investment Limited v. Lamise Investment Limited (2) Chen Den Limited, Venus Prisca Kalima, Felix Kamilo Mutondo, Bubala Kalimina, Florence Mutondo v. IMS Financial Services Limited Appeal No. 137 /2008. (3) Ireen Dhliwayo and 880 others v Bank of Zambia and others SCZ/8/222/2014 (4) Aristogeramos Vangelatos and Another v. Metro Investments Limited and 3 Others SCZ selected judgment No. 35 of2016 (5) John Mugala and Kenneth Kalenga v. The Attorney General ( 1988-89) Z.R. 1 71 (6) Shilling Bob Zinka v. The Attorney General (1990-1992) ZR 73 (7) Hakainde Hichilema and Others The Government of the Republic of Zambia Appeal No. 28/2017 (8) JCN Holdings Limited v. Development Bank of Zambia Appeal No. 87of2012 (9) Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Limited [ 1989] KLR R3 Legislation referred to: (1) Section 4 (b) and Rules 45 and 48 of the Supreme Court Act Cap 25 of the Laws of Zambia Other works referred to: (1) Paragraph 715 and 725 of Halsbury's laws of England Volume 10 4th edition. Introduction 1. This is a notice of motion to reverse vary and or discharge the decision of a single judge of this Court made on 15th March, 2021. The notice of motion has been filed pursuant to section 4 (b) of the Supreme Court Act and Rule 48 (4) of the Supreme Court Rules Cap 25 of the Laws of Zambia. 2. The grounds being relied upon are as follows: 1. The learned single judge of the Supreme Court erred in law when he dismissed the Applicants' application for extension of time within which to file their Motion to re open Appeal No. 43/2016 on the ground that he had no jurisdiction to hear it. , R4 2. The learned single judge of the Supreme Court proceeded to determine and dismiss the Applicants' application for extension of time within Which to file the Motion to re-open Appeal No. 43/2016 on ground of want of jurisdiction without affording them an opportunity to be heard on the specific ground. 3. The background leading to this motion can be discerned from the affidavit in support sworn by Moffat Fumbelo on 25th March, 2021. According to the affidavit, the applicants' appeal was allowed by this Court on 23rd December, 2020. The judgment was delivered during the Christmas vacation. The applicants' advocates were advised by the Supreme Court Registry staff that the judgment would be ready for collection on 29th December, 2020 as it had to be proof read for errors and thereafter signed. 4. After a thorough review of the judgment of this Court, the applicants instructed their advocates to apply to vary the judgment for a number of reasons which are not necessary to address for the purposes of this motion. RS 5. On 5th January, 2021, while still within time to file a motion, the appellant's advocates filed an application for extension of time within which to file a motion to reopen Appeal No. 43/2016 on the grounds that the judgment was only made available to the applicants' advocates six days after it was delivered. In addition, it was delivered during the Christmas vacation when the applicants' advocates had no access to the proceedings of the Court and support facilities necessary to prepare the record of motion. 6. The application for extension of time was made ex-parte before a single judge of this court who ordered that it be made inter partes. The respondent indicated that he would not oppose the application in a letter dated 3rd March, 2021. 7. On 15th March, 2021 the single judge dismissed the application on the ground that he had no jurisdiction to hear an application for extension of time relating to a matter which had been decided by the Court. 8. When dismissing the application, the single judge relied on section 4 as read with rule 48 (5) of the Supreme Court Act, Cap 25 of the Laws of Zambia. t: R6 Section 4 provides in part as follows: "4 A single Judge of the Court may exercise any power vested in the court, not involving the decision of an appeal but a) ------------------------- b) in civil matters any order, direction or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the Court." 9. The Judge held that this section is given efficacy by Rule 48 of the Supreme Court Rules. The relevant parts of Rule 48 read as follows: "48 (1) Applications to a single judge shall be made by motion or summons, within fourteen days of the decision complained of; which shall state the grounds of the application, and shall if necessary be supported by affidavits. The proceedings and other documents relating thereto shall be filed in duplicate. 1) ---------------- 2) ---------------- 3) ---------------- 4) ---------------- ,, R7 5) An application involving the decision of an appeal shall be made to the Court in like manner as aforesaid, but the proceedings shall be filed in thirteen hard copies and an electronic copy and the application shall be heard in Court unless the Chief Justice or Presiding judge shall otherwise direct. 10. When interpreting section 4 and Rule 48 (5), the single judge stated as follows: "Clearly sub-rule (5) provides that those applications involving the decision of an appeal, for which Section 4 stipulates that a single judge should not exercise the powers of the court thereon, must be made to the court and not to a single judge thereof. So, the combined effect of Section 4 and Rule 48 is this: where the Supreme Court determines a matter in its appellate jurisdiction and renders a decision on that appeal then a single judge has no jurisdiction to hear applications involving such a decision. Again, where the Supreme Court hears a matter in exercise of its original jurisdiction, such as when the court used to hear petitions on Presidential Elections, and renders a final decision thereon then a single judge of the court has no jurisdiction to hear an application involving R8 that decision. In either case, therefore, the application must be made to the full court. In this case, the full court heard the appeal and rendered a decision thereon. The respondents not being happy with j that decision wish to f"lle a motion to re-open the appeal. That motion will have to be made directly to the full court. Now, owing to certain circumstances, the respondents felt that they would be unable to meet the deadline for filing the motion to re-open the appeal and, therefore, needed an extension of time to do so; hence the application before a single judge. The application for extension of time is for the purpose of seeking to impugn the decision of the court. It follows that this application, in as much as it is merely for extension of time involves the decision of the court on the appeal that was before the full court; for that reason it cannot be heard by a single judge. It is, therefore, the full court that ought to decide whether, in the circumstances, it should grant the respondents an extension of time to bring the intended motion before it. So, it is my view that I have no jurisdiction to hear this application. I will dismiss it on that ground. Since the RlO 1n support of this argument relied on the case of Manal Investment Limited v. Lamise Investment Limited1 (which we have since reversed) and the case of Chen Den Limited, Venus Prisca Kalima, Felix Kamilo Mutondo, Bubala Kalimina, Florence Mutondo v. IMS Financial Services Limited Appeal No. 137/ 2008.2 In the case of Chen Den, this Court held that a single judge had no jurisdiction to dismiss an appeal for want of prosecution when an appeal was pending hearing by the Court. Counsel for the applicants has argued that the application to enlarge time would not by any stretch of imagination vary or alter the judgment of this Court dated 23rd December, 2020 to warrant it being made only before the Court. 13. In the present case so the argument goes, it is only the motion to re-open itself that will potentially affect the decision of this Court under Appeal No. 43/2016. The motion seeks to impugn the judgment of this Court dated 23rd December, 2020. The motion to re-open filed in terms of Rule 48(5) of the Supreme Court Rules can only be heard by the Court and not a single judge of the Court. Therefore, according to counsel for the applicants, the single judge erroneously applied the import of Rll the provisions of Section 4 of the Supreme Court Act, when he took the view that the application for extension of time could only be heard by the Court in terms of Rule 48(5). This position was fundamentally flawed as Rule 48(5) is invoked only in relation to applications that are intended to touch on the determination of an appeal or final decision of the Court in its original jurisdiction. A motion to re-open is one such application which can only be determined by the Court when duly constituted in terms of section3 of the Supreme Court Act. 14. It follows from what has been submitted above that an application for extension of time is one for which a single judge of this Court has concurrent jurisdiction with the Court and that is the reason why the application can be made ex parte. Counsel then in support of this argument, referred us to the case of Ireen Dhliwayo and 880 others v Bank of Zambia and others SCZ/8/222/20143 in which we held that applications for extensions of time can either be made inter partes or ex parte. It should, however, be noted that the case of Ireen Dhliwayo had not at the time the application was being made for extension of time been decided by this Court. R12 15. Counsel for the applicant have in their second ground argued that the issue of jurisdiction on the part of the single judge was not raised by the respondent and that it was raised by the single judge in his ruling after the hearing of the application. They have argued that it was important for them to have been heard on the question of jurisdiction before the single judge determined the issue. They have referred us to the case of Aristogeramos Vangelatos and Another v. Metro Investments Limited and 3 Others4 in which we held that jurisdiction must be acquired before judgment is given and to paragraph 20-397 of the Rules of the Supreme Court which stipulates that it is the duty of the Court to disclaim jurisdiction and to refuse to entertain the action, for to do otherwise would be contrary to law in support of their argument that the applicants should have been heard on the issue of jurisdiction prior to delivery of the ruling. 16. A number of cases were cited in support of this argument. The first one was John Mugala and Kenneth Kalenga v. The Attorney General5 which held that it is not desirable for a trial judge to volunteer a ruling especially without affording the .. R13 parties advance notice and an opportunity to address him. The second case was the case of Shilling Bob Zinka v. The Attorney General6 which emphasized that parties should be given adequate notice and an opportunity to be heard. The third case referred to by counsel was the case of Hakainde Hichilema and Others The Government of the Republic of Zambia7 which also emphasized the need for parties to be heard. Failure on the part of the single judge to accord the applicants a hearing on the question of whether or not he had jurisdiction to determine the application was, according to counsel, sufficient ground to warrant the reversal or variation or discharge of the decision of the single judge. Respondent's arguments 17. The respondent submitted that jurisdiction is paramount and must be decided before any other issue. Counsel referred us to the case of JCN Holdings Limited v. Development Bank of Zambia8 in support of this submission. In that case, we held that it is settled law that if a matter is not properly before a court, that court has no jurisdiction to make any orders or • R14 grant any remedies. Counsel also cited the case of Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Limited9 which held that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. 18. Counsel for the respondent then went on to submit that the jurisdiction of a single judge of this Court is found in section 4 of the Supreme Court Act which provides that a single judge of the Court may exercise any power vested in the Court not involving the decision of an appeal. Section 4 (b) provides that in civil matters any order, direction or decision made or given in pursuance of the powers conferred by section 4 may be varied, discharged or reversed by the Court. Further, according to Rule 48 ( 1) applications to a single judge shall be made by motion or summons while under Rule 48(5) an application involving the decision of an appeal shall be made to the Court in like manner as in Rule 48(1). 19. Counsel understood section 4 to mean that a single judge has the discretion to hear an interlocutory application which does not involve the decision of an appeal. The legal meaning of the text is almost the same but for the fact that any application that RlS involves the decision of an appeal has to be made to the Court. The intention of the legislature can be construed to have been that only the Court enjoys the preserve of pronouncing itself on any appeal and not one individual sitting as a single judge of the Court. Therefore, anything connected to the decision of an appeal can only be heard by the Court. It can be further construed that the legislature intended that this provision should cater for pre-determination of appeal applications, for instance, for amendment or even substitution of parties. It was not intended to cater for applications being made after the Court has rendered its decision on an appeal. 20. The grammatical meaning of Rule 48(5), according to counsel, is that an application that is with regard to a decision on an appeal must be made to the Court and when filing the documents, a party must file 13 hard copies. The legal meaning goes further to show that such an application must be made in the manner under Rule 48 ( 1) which is either by summons or motion within 14 days of the decision complained of. The intention of the legislature under Rule 48 (5) can be said to have been that it was contemplating post- R16 determination of an appeal steps that a litigant or party may wish to take, in particular moving the Court under the slip rule. It can also be observed that the provision refers specifically to an application being . made involving the decision of an appeal and not necessarily an interlocutory application. In addition, the number of copies a party files into Court increases from 4 to 16. The intention was firstly to put stop gap measures to ensure that litigation comes to an end and for any application being made post the delivery of a decision of this Court on an appeal not to be brought before a single judge of the Court but the Court because the matter would have already passed that stage. 21. The record shows that the appeal was heard by the Court and a decision was made setting aside the judgment of the High Court. Thereafter the applicants made an application before a single judge for extension of time within which to lodge a motion to re-open the appeal. This was refused by a single judge on the ground that he had no jurisdiction. Counsel submitted that in the circumstances, the single judge was on firm ground when he found that he had no jurisdiction to hear . ,. ,, R17 the applicants' application for extension of time as it was not an interlocutory application within the legal meaning of section 4 but was a post-determination of the appeal application which is regulated by Rule 48(5) and must be made within 14 days before the Court. The application should therefore have been made before the Court as it was a step involving the decision of this Court. 22. The respondent has with regard to jurisdiction submitted that the applicants cannot be heard to say that they were denied the right to a hearing simply because they were not heard on the question of jurisdiction as the application had an affidavit and skeleton arguments. That notwithstanding, jurisdiction goes to the heart of the matter. Therefore, even if the respondent agreed that the applicants were not heard, it would not change the fact that the application was made before the wrong forum and was bound to fail because nothing can come from "nothing." R18 Our decision 23. We will begin with the ground that the single judge should have requested the parties to address him on whether or not he had jurisdiction. While we accept the applicants' argument and authorities cited that a party is entitled to be heard, the same cannot be said when there is no jurisdiction to do so in the first place. The absence of jurisdiction means that the single judge should not even have entertained the application in the first place. This is so because upon realizing that he had no jurisdiction, it took him back to the position he should have been in earlier. 24. A simple example would be where a party files a notice of appeal in this Court without having appealed first to the Court of Appeal. In that case this Court would promptly dismiss the appeal for want of jurisdiction without necessarily hearing arguments relating to jurisdiction. Even assuming that the appeal was heard and this Court realized later that it should not have heard the appeal in the first place, there would be no need to call the parties to argue the jurisdictional issue again as . . ' R19 it was not competent to hear and determine it. We, therefore, do not agree with the applicants' submission that it was absolutely necessary for the single judge to call the parties to hear whether or not he had jurisdiction to hear the matter. We say so because according to Paragraph 715 of Volume Halsbury's Laws of England Volume 10 4th edition, it states that: "Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. . Jurisdiction must be acquired before judgment is given." Since, as has been rightly submitted by counsel for the respondent, jurisdiction is everything, we dismiss this ground as it has no merit. 18. The first ground challenges the decision of the single judge that he had no jurisdiction to hear the application for extension of time. It is necessary in our view to begin by defining what "the court" and "a judge" with respect to an appellate court mean generally. Paragraph 725 of Volume 10 of Halsbury's assigns the following meaning to these two expressions: . ' ·' R20 Para 725: Meaning of "the court" and "a judge". The general rule with regard to jurisdiction acquired by statute in general terms and without any special limitation either expressly or by inference gives any power to one of the superior courts, that power may be exercised by a judge in chambers as the delegate of the court. It is only in cases of special limitation, or where the statute contains expressions from which it may be inferred that the application was intended to be made in open court, that the judge in chambers has no jurisdiction. Generally speaking the expression "the court" used in a statute means a judge or judges sitting in open court. "A judge" means a judge sitting in chambers. It follows, therefore, that the expression "the court or a judge" gives jurisdiction to judges sitting either in open court or in chambers." In the absence of statutory authority, express or implied, functions of a judicial nature cannot be delegated". Section 2 of the Supreme Court Act defines "the Court" to mean the Supreme Court. Section 3 of the same Act which deals with the constitution of the Court states in subsection ( 1) that: --------------------------------- ···--- R22 was so limited by the order of the Court or by these Rules or by any written law." Rule 48 ( 1) of the Supreme Court Rules states that: "Applications to a single judge shall be made by motion or summons within fourteen days of the decision complained of which shall state the grounds of the application, and shall if necessary be supported by affidavits. The proceedings and other documents relating thereto shall be filed in duplicate Rule 48 (5) on the other hand reads as follows: "An application involving the decision of an appeal shall be made to the Court in like manner as aforesaid, but the proceedings shall be filed in thirteen hard and electronic copies and the application shall be heard in Court unless the Chief Justice or presiding judge shall otherwise direct". 19. We have quoted extensively from the Act and the Rules to highlight the distinction between the Court and a single judge and how the Act and the Rules interrelate. R23 20. The starting point is section 4 which gives the power of the Court to a single judge to exercise it in chambers as a delegate of the Court provided it does not involve the decision of an appeal. This section presupposes that that an appeal is in train but has not been heard and determined and it relates to matters such as extending time within which to file a record or granting leave which has been refused by the Court of Appeal. These are matters which do not decide the appeal with finality but are a prelude to preparing an appeal for hearing and determination by the Court under section 3. The power given by the Court by section 4 can be varied, discharged or reversed by the Court under section 4(b) which leads to the conclusion that a decision of a single judge is not necessarily final. 21. Rule 12 gives this Court power for sufficient reason to extend time assuming an application to do so has been refused by a single judge. It also gives it power " ... for taking any step in or in connection with any appeal". Rule 48 (1) uses the words "the decision complained of' which can only refer to the decision of a lower court and not the decision of this Court. Rule 48 (5) on R24 the other hand refers to a decision made by the Court and not a single judge. It begins by stating that "An application involving the decision of an appeal". 22. This leads us to conclude that Rule 48 (5) concerns an appeal which has been decided and judgment has been delivered. It goes further to state that the application shall be heard 1n Court unless the Chief Justice or presiding judge shall otherwise direct. The use of the term "presiding judge" refers to a panel of judges. When Rule 48 (5) is read with Rule 12 (1), it becomes abundantly clear that a single judge of the Court may only exercise any power vested in the Court not involving the decision of an appeal which has been decided. Once an appeal has been determined, a single judge has no jurisdiction to entertain any application including what may be termed as routine applications for extensions of time. That is the reason why Rule 12 gives this Court power to extend time in addition to the power given to a single judge by section 4. It follows from what we have said above that the single judge did not have jurisdiction to deal with the matter before him. We R25 accordingly affirm his ruling. The applicants have raised an important procedural step in our . rules which required clarification. The parties shall bear their respective costs. ' • A.M.WOO SUPREME COURT JUDGE ........... ~::J.£ ........ . ···············~·~············· . MALILA J. CHINYAMA SU:lfREME COURT JUDGE SUPREME COURT JUDGE