Milingo Lungu v The Attorney General and Anor (2022/CCZ/006) (15 March 2024) – ZambiaLII

, FOR YOUR SIGNATURE PLEASE ✓ • ........... 'l';1.\. .C?. .?.{.:-::::.7;.':f. ...................... . Prof MM MUNALULA PCC .. 1. j. . !.'± .?.?.'.?.':.: .............................. . A.M SHILIMI DPC. ..... �. .......... .Q}. . b:.l�. !... ........ ! .1.. :.4-·. ................................... P. MULONDA JC •••••• ✓ 061� \\rl\ M.S MULENGA JC. ............................................................................... .1 / . �?. �.7:.�. ......................................... ! ..: ... M.K CHISUNKA JC• ••••••••• ) ) J.6. .9.:S. . J.�./2;4.:. ...................................... . . M.Z MWANDENGA JC ../ .. / I S \ '1 \ '). D'))t I) K. MULiF E JC. ...................................................................................... . IN THE CONSTITUTIONAL COURT OF ZAMBIA 2022/CCZ/006 HOLDEN AT LUSA� (Constitutional Jurisdiction) IN THE MATTER OF: THE CONSTITUTION OF ZAMBIA, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ARTICLES 1, 1(5), 128, 173 (1) (a), (c), (g), 180 (7), 216 (c) AND 235 (b) OF THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: THE STATE PROCEEDINGS ACT, CHAPTER 71, VOLUME 6 OF THE LAWS OF ZAMBIA IN THE MATTER OF: SECTION 8 OF THE CONSTITUTIONAL COURT ACT, 2016 BETWEEN: REPUBLIC OF ZAMBIA MILINGO LUNGU CONSTITUTIONAL COURT OF ZAMBIA PETITIONER Gi��;-;�;�71?J AND !ti ··�•--•... . •I THE ATTORNEY GENE. REGISTRY 7 1 RESPONDENT . � 0 BOX 50067, LUSAKA ADMINISTRATOR GENERA;:;-;:-;--L ------Jd RESPONDENT CORAM:: M.M.Munalula, P.C, A.M. Shilimi, DPC, P. Mulonda, M.S. Mulenga, M.K. Chisunk.a, 1\/LZ. Mwandenga, K. Mulife, JJC on the 16thNovember, 2023 and 15th March, 2024 For the Petitioner: Mr. M. Chitambala of Lukona Chambers For the 1st Respondent: Mr. R.M. Simeza, SC appearing '\llrith IVIr. W. Kayope both of Messrs. Simeza S.angwa & Associates Rl For the 2nd Respondent: lVIr. K. M. Kalumba, Assistant Administrator General RULING - ---- ----- Mwandenga, JC delivered the Ruling of the Court. Authorities referred to: 1. Bowman 1:usambo v Attorney· General 2023/CCZ/001 2. Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited (1989) KLR 1 3. Antonio Ventriglia and Another v Finsbury Investments Limited (2020) ZMSC 100 4. Potiphar Tembo v Tasila Lungu and Electoral Commission of Zambia 2021 / CCZ / A0040 5. Margaret Mwanakatwe v Charlotte Scott and the Attorney General, CCZ Appeal No.14 of 2016 6. Bremer Vulkan-Schiffbau· Maschienfabrik v South India Shipping Corporation Limited [1981] I AER 289 at-295 Legislation referred to: 1. -The Constitution of Zambia (Amendment) Act No. 2 of 2. The Constitutional Court Rules, Statutory Instrument No. 37 of 2016 3. The Rules of the Supreme Court of England, 1965 (White Book, 1999 Edition) · Other works referred to: The Halsbury' 1 s Laws of England (4th Edition), 1982, Vol. 37 Introduction 1. This Ruling q.ecides an application by the 1st Respondent for an order to set aside, discharge or reverse a stay of criminal R2 proceedings issued by a single Judge pending the hearing of the Petition filed ·by the Petitioner before this Court. The factual background 2. By a ruling dated the 19th May, 2022, a single Judge of this Court granted the Petitioner a stay of criminal proceedings against hirn in the Subordinate Courts pending hearing of his Petition by this Court (the Ruling). Following our decision regarding ·the .. gtanting of stays of criminal proceedings handed down on the 9th June, 2023 in the case of Bowman Lusambo -v Attoi;ney .Gener_al 1 , by a Notice of Motion filed on the 16th June, 2023.(this Notice ofl\,1otion) the 1st Respondent seeks an order to set aside, discharge or reverse the Ruling. 3. This Notice.of Motion is.made pursuant to Order 9 Rule 20 of the Constitutional Court Rules, 2016 .(CCR), Statutory Instruqient No. 37 of 2016. and the inherent jurisdiction of the Court. - . 4. The 1st Respond�nt filed an affidavit in support of this Notice of Motion sworn by the Attorney General, Mr. Mulilo Dimas Kabesha, .SC (the affidavit in supp9rt) together with skeleton arguments. R3 st 5. The 1 Respo'ndent seeks the order referred to in paragraph two hereof on the following grounds: (i) That the Constitutional Court does not have the requisite jurisdiction to grant a stay of criminal proceedings before the Subordinate Court or otherwise; and• .. (ii) 'That ciyil proceedings cannot be used to arrest criminal proceedjngs. 6. The Petitioner and tb.e 2nd Respondent di: d not file any court process in .this Notice of Motion. The 1st Respondent's case 7. In the affidavit in support, it was inter alia deposed that: 7 .1 On 21 st May, 2021 the Petitioner was appointed by way of Court Ord-er, as Provisional Liquidator for Kon.kola Copper Mines Plc ("KCivI"); i.2· · The · activhies : of the Petitioner in his capacity as Provis.ional Liquidator for KCM have been the subject of investigations _by the Anti-Money Laundering Unit of the Drug Enforcement Commission ("DEC") and that the Petition�r . has, since appeared before the Subordinate Courts apd taken plea on charges of theft a. nd money R4 laundering and of being found in possession of property suspected to be proceeds of crin1e. 7. 3 The Petitioner was later purportedly granted immunity by the then Director of Public Prosecutions ("DPP"), after which a nolle prosequi was entered in respect of the two matters in the Subordinat� Courts; 7.4 The Petitio�er sought recour.se from this Court, alleging constitutional breaches against th� Respondents. He ac.cordingly,filed an application on 26th April, 2022, to stay criminal proceedings in the Subordinate Courts pending the hearing and det�rmination of his Petition on grounds that _the _arrests and arraignrp.errts were an abuse of the court's process and were a breach of the purported immunity agree;rnent between the Petitioner and the DPP; and . 7 .5 Follow�_ng the . .application ·referred to in. pan�graph 7.4 above, _the_ stay of proceedings in the Subordinate C01,\rts was granted by the single Judge. The 1st Respondent now seeks an order to set aside, discharge or reverse the Ruling. RS The 1st Respondent's arguments 8. In the skeleton arguments in support of this Notice of Motion, the issue of jurisdiction of this Court to stay criminal proceedings was addressed first. It was submitted that this Court does not have jurisdiction to stay criminal proceedings before the Subordinate Courts pending the determination of a Petition or otherwise. To support this submission, the case of Bown1an Lusambo v Attorney General 1 was cited in which the full bench of this Court referred to Article 128 of the Constitution and stated as follows: 6.5 Thus, the Constitutional Court has original jurisdiction in all matters alleging contravention of �he Constitution and for interpretation of the Constitution. The Court has appellate jurisdiction _in matters relating to appeals involving elections of Members of Parliament and councillors. Therefore, whatever interim or interlocutory Order the Court issues must be in line with its jurisdiction as provided in the Constitution .... 6.7 What we deduce from Article 128 (2) is that, a Court in this current case for instance, the Subordinate · Court where ' the Petitioner is appearing for crinlinal charges should have determined. that a question· ·relating to the Constitution had arisen. Thereafter, it should on its 01Ai'n n1.otion, have stayed the proceedings before' ·u and ·referred the question to this Court for ·deten:nination. R6 9. 1t was argued that this Court had placed emphasis in the above case, on the fact that a stay of proceedings was not an avenue for one to appeal or stifle criminal proceedings before the Subordinate Courts through a pending litigation to this Court or some other proceedings. st 10. It was the 1 Respondent's contention that the single J·udge of this Court did not have the requisite jurisdiction to stay criminal. pro_ceedings . pending the determination of the Petition. 11. In_arguing. as to what an1ounts to jurisdiction, a Kenyan case was cited, na1nely, Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited2 in which it was held as , follows: �-=--11:.l_�i.sdiction is everything. Without it, a Court has no power to make one more step. \Vhere a Court has no jurisdfction there would be no basis for a continuation of proceedings pending other evidence� A Court of law downs 'its tools in· respect of the matter before it the rnoment it holds the opinid:n that it is without jurisdiction. (Emphasis theirs) 12. Relying on.the Supreme Court of Zambia case of Antonio . ; Ventriglia · and Another v Finsbury Investments Limited3 it was sub�itted _ that the _ Ruling of the sin.gl � Judge was a ·' ·. ·. R7 . . . ' nullity as there was no jurisdiction to stay the criminal proceedings. It was therefore prayed that the said Ruling be set aside, discharged or reversed. 13. In addition to the above arguments, it was submitted that the Ruling of the single Judge essentially arrested the criminal proceedings before the Subordinate Courts. It was added that this Court in the Bowman Lusambo v ,Attorney General case, emp}:1.asised that this Court cannot grant a stay whose f efect was to arrest criminal proceedings. This Court stated: 6.14 Thus, as observed in the case of Rajan Mahtani which followed the decision in C and S case, there are no interlocutory appeals in crhninal matters and that the crinlinal justice system . has. its own procedure. Furthermore, that "It was for this reason that civil procedure 1nust not be used to abort criminal investigations to prosecutions." To go round . on an interlocutory appeal in criminal matters by way of judicial review .is misconceived. .. 6.15 ... For avoidance of doubt, we wish to state t�at .civil. proceedings cannot be used to arrest: �riminal proceedings in any circumstances. Be that.,. ,as it may be, the current . application. .fails for being misconceived as it is not. support�d by the Constitution under Article 128 (2) .... 14. It was inter alia on -the basi� of the .above, that the 1st Respondent submitted that the Ruling of the single Judge in . R8 • I essence arrested the criminal proceedings before the Subordinate Courts. 15. The 1st Respondent therefore implored this Court to set aside, discharge or reverse the Ruling in the interest of justice. Motion The hearing of this Notice of 16. At the hearing, Counsel for the 1st Respondent, Mr. Robert M. Simeza, SC in augmenting the written arguments made brief oral submissions which were in essence similar to the written arE,run1ents. 17. ·Counsel for .the 2 nd ··Res·ponde·nt Mr. I<.M. Kalumba, opted to adopt the application of the 1st Respondent in its entirety. 18. Counsel for the Petitioner Mr. M. Chitainbala, submitted in opposition. to this Notice of Motion on points of law. The arguments can be sumrn.arized as follows: . 18.1 That this ·Notice of Motion was incompetently before this Cou:r:t on the gro11nds that the procedur� for challenging or seeking. to reverse or annul the decision of a single Judge of this Court is _prescribed; namely, that any party dissatisfied vv_tth a dec;ision of a single Judge of this Court. ought to challenge such a dec;ision by way of appeal before f the full Cou-rt pursuant to Order 59, .Rule 14 .( 12) o. the . R9 Rules of the Suprerne Court: of England, ( 1999 Edition) " (RSC'· 18.2 That it therefore follows that an appeal against a decision of a single Judge or application challenging a decision of a single Judge brought before the full Court pursuant to Orde. r 9 Rule 2Q of the CCR-is clearly incompetent and therefore this Court has no jurisdiction to entertain such an application; 18.3 That-th_ is Court. in the cases of Potiphar 'fembo v Tasila ,- Lungu · and El�ctoral Commission of Zambia.4 and lVIargaret Mwanakatwe v Charlotte Scott and Attorney Genei,-�1 • proceeded to . dismiss the , appltcations that so�ght to .challenge the decision of a single Judge by way of m.otion .instead of an appeal as pre.scr:ibed by Order 59 .Rule 14(J2.) iof.the RSC; _ st 18.4 That thej1v:wmpetepce of, the 1 .Rcsp_qndent's application was_ fur:ther. cornp ounded by the said Order 59 Rule 14( 12) of the RSC which makes it mandatory for an appeal . . against .a decision of a single Judge to be filed within 10 �ays of the.decision of the single Judge; RlO 18.5 That it followed that any appeal intended to be filed after the expiration of the 10-day period can only be filed with leave of the Court; 18.6 That the absence of an Order for leave renders the application fatally incompetent; 18.7 That wh_ere,, a Court lacks jurisdicti()n, any decision, it rnakes in _the proceedings arnounts to nothing; and 18.8 That further and in the alternative the power to grant a stay by a single Judge is guaranteed .by the Const_ itutional Court of Zarnbia Ac;t, No.8 of 2016, (the Act) that derives its authority from the Constitution of Zambia (A�endme. nt) Act, _No. 2. of 2016 (the Constitution). 19 . .In the light.of the Petitioner's submissions, we. were urged to disn1iss t;his Notice of ¥otion for being i�competently before the Court as, .according to the Petitioner,, this Court has no jurjsdiction to. grant any ::--elief prayed for by the 1 sL Respondent .. 20. State, Cpunsel Sin1eza in reply inter: alia s1:1bmitted that: Rll 20. l The issues that were dealt with by this Court in the Potiphar Teirn.ho v Tasila Lungu and Electoral Commission of Zambia4 case which made reference to the case of Margaret Mwanakatwe v Charlotte Scott and Attorney General5 were exactly the same issues that carne for determination before this Court in the case o,f Bowman .iusambo v �ttorn�y General1 and that this Court had a,:q_. opportunity to address the question of the procedure.to.follow on an applicati,on from a decision of a. single Judge to the full Court; 20.2 That there was absolutely no irregularity in the procedure that was.inyoked by the 1st Respondent as .Order 59 of the RSC wa:;; inapplicable;-· 20.3 That the.· argument that this Notice of Motion was incompetent.b ecause Order 59 Rule 14( 12) of the RSC makes it µiandatory for an appeal .against a decision of a single .,Judge to be. filed within 10 (ten) days was a total misunderstanding of the provisions applicable in this case and a deliberate disregard of the decision of this Court in the Bown1an Lusambo � Attorney General1case; and R12 20.4 On the argument that the power to grant a stay was guaranteed by the Act which derived its authority from the Cons tit u tion, he submitted that the jurisdiction of this Court under Article 128 does not give the Court power to grant a stay in the circumstances of this case. 21.· State Counsel prayed that this Notice of Motion be allowed Consideration of this Motion· 22. We have considered this Notice of Motion together with the . . affidavit evidence, oral and written submissions made by the parties. ' •' 23. The record shows lhat the pt Respondent relied on Order IX 20 bf ·the Rule CCR and· the inherent jurisdiction of this Court. The former provides for interlocutory applications. 24. The parties .have n1ade broad ranging submissions in support of their respective cases. We however, shall not rehash the arguments because, in our view, t_he, cardinal issue which must be determined is: Whether this Notice of Motion is properly before us. The other cardinal issue is whether in the circurn.st, _ances of thi_s case, the impugned Ruling should or should not be set aside, discharged or reversed; R13 25. This Notice of Motion was prompted by the decision of this Court in the case of Bowm;;-1.n Lusan1bo v Attorney General 1 . In that case this Court specifically disagreed with the impugned Ruling. This Court said: 6.8 We a:rc therefore� of the firm view that although the CCR provide for application for interlocutory or interim orders, the· interim order for stay is incorporated in the Constitution such that one need not apply for a stay in this Court. In this regard, we are · · · · inclined to disagree· with the Milingo Ruling by the single Judge for holding that Article 128 (2} rnaridates the Constitutional Court to �ceedings pending determination of the Petition .or matter before it as it is the Court b�fore which a question regarding the Constitution adses · that .should stay !!!_oceedings� 'UTe are mindful though that that ruHµg wa�; i;iot challenged by way of a,ppeal to the full Court. (Emphasis supplied) 26. Against this ..b ackground · we . are of' the view thac the application to- set aside, discharge or reverse tbe Ru:ing is properly before us. 27. And for the reasons we shall advance below we are of the view ! that this Notice of IVI'ction engages cur inherent jurisdiction. . . . 28. What then is the rneaning of inherent jurisdiction? The Halsbury's Laws of England (4th .Edition} 1982, Vol. 37, at ,. p. 23: describes the inherent jurisdiction of the court as follows: R14 In sum it may be said that the inherent jurisdiction ? of the court is a virile and viable doctrine, and has been defined as being the re:;serve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial bet\,11een thern. Bremer Vulkan Schiffuau Maschienfabrik v 29. In the case of Sout4 Indic1. Shippi:ng· Cor. po:ration Li�ited Lord Diplock speaking on the subject. of dismissing a pending action for want of prosecution persuasively said: 0 The'pch,-.�:r to dismiss .a pending action for want of prosecution. in cases where to allow the action to continue· would 'involve a '· substantial risk that justice could not be done is thus properly described as ah 'inherent power� the exercise· of · which is within the 'inherent jurisdiction' of the High Court. It would think be conducive to legal clarity if the I use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice,. (Ernphasi. s.supp�ed) - , • • � l • • elem: 30. From the for�going n1atters,,it>is palpal;)ly. that inherent jurisdiction is consitjered ·to be part of the court's power to do all things reasonably ,necessaDJ to ensure1fair administration , I • • ' / of justice within its jurisdiction. In other words that inh�rent. RlS power is found within the very nature of a court oflaw, unlike power conferred by statute . . 31. This Court has the authority to hear and determine, the application to set aside, discharge or reverse a decision of the single Judge under and by virtue of its inherent jurisdiction because the interes_t of justice den1ands that the decision of this Court in t. he case_ of Bowman Lusambo v Attorney G-eneral1)n so far.as it concerns or touches. on the Ruling of the -single LTudge, be given it� full meaning and effect, otherwise._ the ad, ministration. of justice will be put into (3.isrepu-te. _· 32. Accordingly• .we. endorse_ o�.1_r decisio-n- . 1n the Bowman Lusambo v Attorney General1 that this Court does not h_ave jurisdiction t_o grant a stay of pn::iceedings in another Court. lt invariably follows that the single Judge did not have jµrisdi�tion to grant the stay of criminal proceedings in the Subordinate Courts. . 33. What then is .the fate of a decision that is made by a Court ' ' . . . . without -the requisite jurisdictjon? It is trite lQw. that jurisdiction is . everything · and any order m,ade without jurisdiction i_s a.nullity. R16 ' 34. In this matter, therefore, the impugned Ruling is a nullity. For the avoidance of doubt the Ruling of the single Judge staying criminal proceedings against the Petitioner in the Subordinate Courts is hereby discharged. We make no order for costs. Prof. M.M. Munalula Constitutional Court President A.M. Shilimi · P. Mulonda Constitutional Court Deputy Constitutional Court Judge President �- M.S. Mulenga M.K. Chisunka Constitutional Court Judge . . K. Mulife Constitutional ou nstitutional Court Judge R17