Steven Katuka (Suing as Secretary General of the United Party for National Development) and Anor v Attorney General and Anor (2016/CC/0010) (12 September 2019) – ZambiaLII

(789) SELECTED RULING NO. 25 OF 2019 IN THE CONSTITUTIONAL COURT OF ZAMBIA 2016/CC/0010 HOLDEN AT LUSAKA2016/CC/0011 (Constitutional Jurisdiction) BETWEEN: STEVEN KATUKA ( Suing as Secretary General 2ND PETITIONER of the United Party for National Development) LAW ASSOCIATION OF ZAM IA REPue1.1c OF ZAMn•4. 3RD PETITIONER CONSTITUTIONAL COU~T t.., .!..".MBIA ' AND --~7 t i;d THE ATTORNEY GENERAL 1 2 SEP 2019 ' !ESPONDENT NGOSA SIMBYAKULA AND 3 OTHERS 4TH 64TH ~ EGISTRY 1 P O !iOX 50067, LUSAi8'E S . ON DENTS Coram: Chibomba, PC, Sitali, Mulenga, Mulembe and Munalula, JJC On 29th June, 2018 and 12th September, 2019. For the 2nd Petitioner: No appearance For the 3rd Petitioner: Mr. J. Chimankata of Simeza Sangwa& Associates. For the 1st Respondent: Mr. L. Kalaluka, SC, Attorney General. Ms. A. Chisanga, State Advocate. For the 4th to 64th Mr. 8. Mutale, SC, of Ellis & Company. Respondents: Mr. M. Lungu of Lungu Simwanza & Company. Ms. C. Bwalya, OH Kemp & Company. RULING Mulembe, JC, delivered the Ruling of the Court. R1 (790) Cases referred to: 1. Taylor v Lawrence [2002) 2 All E.R. 353 2. Chibote Limited and others v Meridien BIAO Bank (Zambia) Limited (in liquidation) (2003) Z.R. 76 3. Finsbury Investments Limited and others v Ventriglia Appeal No.17 of 2013 4. S.A. Maritime et Commerciale of Geneva v Anglo Iranian Oil Co. Limited [1954) 1 All E.R. 529 5. Drake & Gorham (Zambia) Limited v Energo Project Limited (1980) Z.R. 74 (reprint) 6. Kearney and Company Limited v Taw International (1978) Z.R. 468 (reprint) 7. Ruth Kumbi v Robinson Zulu (2009) Z.R. 183 8. Henry Kapoko v The People Selected Judgment No. 43 of 2016 9. Leopold Walford Zambia Limited v Unifred (1985) Z.R. 203 10. Owners of the Motor Vessel v Caltex Oil Kenya Limited [1989) KLR 1 11. Connelly v Director of Public Prosecutions11 [1964) 2 All E.R. 401 12. Bremer Vulcan Schiffbauund Maschinenfabrik v South India Shipping Corp. Limited [1981) 1 All E.R. 289 Legislation referred to: 1. The Constitutional Court Act No. 8 of 2016 2. The Constitutional Court Rules Statutory Instrument No. 37 of 2016 3. The Constitution of Zambia (Amendment) Act. No. 2 of 2016 4. The English Law (Extent of Application) Act No. 14 of 2002 5. The Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia 6. The High Court (Amendment) Act No. 7 of 2011 7. The Court of Appeal Act No. 7 of 2016 8. The Supreme Court (Amendment) Act No. 8 of 2011 Other works referred to: 1. Stroud's Judicial Dictionary of Words and Phrases, 9th edition, Sweet & Maxwell 2. Blacks Law Dictionary, Deluxe Tenth Edition, Thomson Reuters This Ruling relates to the 3rd Petitioner's Notice of Motion to raise preliminary issues made pursuant to the inherent jurisdiction of this Court filed on 12thJune, 2018. The brief background is that on 28thMarch, 2018 the 4th to 64th Respondents filed a Notice of Motion to set aside or reverse parts of the Judgment of 8th August, 2016 pursuant to the inherent jurisdiction of this Court. On 12thJune, 2018 the 3rd R2 (791) Petitioner filed its Notice of Motion to raise preliminary issues on the 4th to 64th Respondents' Notice of Motion aforementioned. The 3rd Petitioner's Notice of Motion raised two grounds as follows: (a) The Notice of Motion to set aside parts of the Judgment of this Court is improperly before the Court; and (b) The Respondents' application does not disclose any grounds to warrant reopening the final decision of this Court. When the matter came up for hearing of the 3rd Petitioner's application to raise preliminary issues, learned counsel for the 4th to 64th Respondents, Mr. Mutale, SC, sought guidance from the Court as regards the preliminary issues raised by the 3rd Petitioner. State Counsel Mutale submitted that the second issue delved into the merits of the main Motion. We proceeded to hear submissions from all the p~ties. In our Ruling of 28thJune, 2018 we adjudged that the second preliminary issue delved into the substantive arguments of the main Motion and ordered that the 3rd Petitioner should, at that stage, only argue the first issue and not the second issue. This Ruling, therefore, relates only to the first issue raised in the 3rd Petitioner's Notice of Motion filed on 12th Ju ne, 2018 on the question whether the Notice of Motion to set aside parts of the Judgment of this Court is properly before the Court. R3 (792) In the skeleton arguments filed in support of its Notice of Motion, the 3rd Petitioner asserted that before a party can move this Court to set aside or reverse a part of its final judgment, the applicant must first seek leave of the Court to reopen the case. The 3rd Petitioner submitted that there was no Act or rule that provides for setting aside or reversing a final judgment of this Court and that, thus, the practice and procedure to be adopted should be as nearly as may be in accordance with the law and practice for the time being observed in the Court of Appeal in England, citing Order 1 rule 1 (2) of the Constitutional Court Rules ("the Court's Rules")for authority. Calling in aid the English case of Taylor v Lawrence, 1 the 3rd Petitioner argued that it was clear that the practice adopted by the Court of Appeal in England as regards reopening of final decisions is that the party seeking to reopen a final decision of the Court must apply for permission to do so and that once the permission is granted, the party can be heard on the substantive application. The 3rd Petitioner contended that there could be no hearing where the Court had not granted permission to reopen the matter and, as such, the Notice of Motion in question was incompetently before this Court and should be dismissed. R4 I (793) The 3rd Petitioner submitted that in the instant case the Notice of Motion filed by the 4th to 64th Respondents on 28th March, 2018 was for an order that the decision of this Court of 8th August, 2016 be set aside or reversed to the extent that it ordered that the 4th to 64th Respondents do refund to the State all salaries and allowances which they had been paid from 12th May, 2016 after the dissolution of Parliament. It was the 3rd Petitioner's contention that it was clear from the Notice of Motion that the 4th to 64th Respondents had not sought the permission of this Court to reopen the case but had proceeded as though this Court had granted permission to reopen its final decision; that it was against the practice adopted in the Court of Appeal 1n England which this Court is mandated to follow pursuant to Order I rule 1 (2) of the Court's Rules. The 3rd Petitioner discounted as untenable the 4th to 64th Respondents' argument that this Court should adopt the practice adopted in the Supreme Court of Zambia on the authority of Chibote Limited and others v Meridien BIAO Bank (Zambia) Limited (in liquidation)2 and Finsbury Investments Limited and Others v Ventriglia,3 as this Court can only adopt the practice RS (794) being observed in the Court of Appeal in England in accordance with Order I rule 1(2) of the Court's Rules. To au gment, learned counsel Mr. Chimankata relied on the 3rd Petitioner's skeleton arguments filed on 12thJune, 2018. In reference to the 4th to 64th Respondents' skeleton arguments filed on 19th June, 2018 in which it was submitted that the 3rd Petitioner overlooked the cut-off date of 31st December, 1999 counsel contended that the 3rd Petitioner's application was premised on Order I rule 1 (2) of the Rules and not Order I rule 1(1) as stated by the 4th to 64th Respondents. Mr. Chimankata argued that the Constitutional Court Act ("the Act") and the Court's Rules do not make provision for reopening a final decision of this Court. And making reference to Order I rule 1 ( 1), counsel's position was that even in the Supreme Court Practice 1999 there was no rule which provided for the reopening of a final decision of the Court which has been perfected. Mr. Chimankata submitted that there was no cut-off date in Order I rule 1 (2), which requires this Court to adopt as nearly as maybe the law and practice for the time being observed in the Court of Appeal in England. Counsel opined that 'for the time being' meant for the moment and contended that the law and R6 (795) practice for the time being in the Court of Appeal in England was as stated in Taylor v Lawrence.1 We were urged to adopt the law and practice of the Court of Appeal in England as explained in the Taylor1 case where that court was clear that it had jurisdiction to reopen its own final decision. To buttress his point, Mr. Chimankata quoted Woolf, CJ, who stated that: Accordingly a party seeking to reopen a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Counsel asserted that it was clear from the Notice of Motion filed by the 4th to 64th Respondents and the affidavit in support that they did not seek the permission of this Court to reopen its final decision; that by 10th August, 2016 this Court was functus officio as regards this matter and to seek to reopen the case with a view to setting aside parts of it is not the jurisdiction this Court could be invited to exercise through applications made in a casual and ordinary manner. In countering the 4th to 64th Respondents' argument that Taylor v Lawrence1 was decided after 1999 and is thus not applicable, Mr. Chimankata stressed the point that the court in that case was not deciding or adjudicating on any particular rule R7 • (796) and opined that the question whether or not it came before or after 1999 was inconsequential. Calling 1n aid Lord Woolfs sentiments in Taylor v Lawrence, 1 where he stated that there needed to be a procedure which would ensure that proceedings would only reopen when there was a real requirement, we were urged to pronounce ourselves on that procedure as, if there was no such procedure, counsel argued, there would be total chaos. We were further referred to the following words of Lord Woolf in Taylor v Lawrence:1 The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. And that: The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end. It was counsel's contention that the public already knew that litigation in this matter came to an end in August 2016 and that this Court must exercise strong control over such proceedings. He submitted that if this Court did not adopt the practice and procedure in Taylor v Lawrence,1 there would be no end to litigation; that it would mean that every decision that this Court has passed since 2016 would be subject to reopening without leave of the Court to do so. It was counsel's prayer that R8 (797) the Court finds that the Notice of Motion to set aside parts of the Judgment of the Court was improperly before this Court as the Respondents did not seek the permission of the Court to reopen its final decision. Mr. Chimankata submitted that in terms of paragraph 59 / 1 / 151 of the Supreme Court Practice, 1999 a judgment becomes final or is perfected when it is passed and entered. In opposing the Notice of Motion to raise preliminary issues, the 4th to 64th Respondents discounted as improper the 3rd Petitioner's argument that the Respondents' application was improperly before this Court for not following the practice and procedure of the Court of Appeal in England, pursuant to Order rule 1 (2) of the Rules, requiring a party to first seek permission before a final decision can be reopened as decided in Taylor v Lawrence.1 It was contended that the 3rd Petitioner either overlooked or deliberately ignored that the requirement in Taylor v Lawrence 1 did not form part of the practice and procedure of the Court of Appeal in England applicable to this Cou rt as it was practice and procedure that was introduced after the cut-off date of 3lstDecember, 1999. Further, that section 9 of the Act, read together with Order I rule 1 (1 ), provides that the jurisdiction R9 (798) vested in this Court, as regards practice and procedure, 1s provided by the Act and the Rules and, in default thereof 1n substantial conformity with the Supreme Court Practice, 1999. The 3rd to 64th Respondents argued that the cut-off date was not mere surplusage, citing S.A. Maritime et Commerciale of Geneva v Anglo Iranian Oil Co. Limited4 as applied in Drake & Gorham (Zambia) Limited v Energo Project Limited.5 It was contended that the cut-off date is of immense significance as far as civil practice and procedure in this country is concerned, as also shown in section 10 of the High Court Act as amended by Act No. 7 of 2011; section 8 of the Court of Appeal Act, 2016 and section 8 of the Supreme Court Act as amended by Act No. 8 of 2011. The case of Kearney and Company Limited v Taw lnternational6 was cited wherein the Supreme Court said: English authorities, and particularly those of the House of Lords, are of course of great weight and assistance in Zambia in areas in which they are on point; but before relying on English cases it is necessary to ensure that the legislation which was under review in those cases corresponds to, or is relevant to, our legislation. It was submitted that the White Book (1999 Edition), which 1s applicable to Zambia, under paragraph 59 / 1 / 151 allows the Court of Appeal in England to alter its decision before it is R10 (799) perfected. That the practice in Taylor v Lawrence1 was introduced in 2002 and thus is not part of our procedural law. To augment, learned counsel, Mr. Bwalya, submitted that the main question for the Court's consideration is whether permission as formulated in Taylor v Lawrence1 is a requirement for the 4th to 64thRespondents' Notice of Motion. Mr. Bwalya asserted that the Respondents' position was that there was no requirement for leave primarily because the procedure for permission was only introduced in 2002 and subsequently incorporated 1n the Civil Procedure Rules (Green Book) that replaced the Supreme Court Practice, 1999 in England. Mr. Bwalya submitted that importing that position to this Court would render Order I rule 1 ( 1) of the Rules meaningless and that the Green Book would have to be imported into the practice and procedure of this Court. He argued that as far as our legal system was concerned, it was intended to place a cap on what can be imported into civil court practice and procedure in Zambia, including before this Court. Counsel stressed that as far as practice and procedure is concerned, the cut-off date is 31st December, 1999 unless this Court would be of the view that the Civil Procedure Rules of R11 (800) England which replaced the Supreme Court Practice, 1999 were applicable in this Court; that the need for permission as laid out in Taylor v Lawrence 1 does not form part of our practice and procedure as it would render Order I rule 1 ( 1) meaningless and mere surplusage. Mr. Bwalya further contended that if this Court were of the view that the practice and procedure set out in Taylor v Lawrence 1 was desirable and should be adopted, then the Chief Justice would have to invoke section 31 of the Act and issue a practice direction that would regulate the practice and procedure of this Court. Counsel expressed doubt as to whether this Court would legislate on practice and procedure requiring leave in this case and further apply it to the 4th to 64th Respondents, when the procedure was not available prior to filing their Notice of Motion. Mr. Bwalya further submitted that the 4th to 64th Respondents disagreed with the assertion by counsel for the 3rd Petitioner that this Court should restrict itself to the practice and procedure available in the Court of Appeal in England, stating that the Court of Appeal in England is an intermediate court and that the rules and practice of the Court of Appeal in England cannot just be adopted religiously or without question. R12 (801) He contended that this Court has the discretion to discard procedure which is unique to England's constitutional set up as far as their judiciary is concerned. Mr. Bwalya's further submission was to the effect that in Taylor v Lawrence1 relied on by the 3rd Petitioner, permission , was granted even though it had not been applied for prior to the hearing of the case and the substantive application was heard. That if this Court was of the view that permission is a threshold requirement, then it should not prejudice the 4th to 64th Respondents as their position in view of the cut-off date in Order I rule 1 ( 1) would only become unequivocal or clear after a decision of this Court is rendered and should be applicable to future cases and not the instant case. Counsel submitted that the 4th to 64th Respondents' prayer 1s that the preliminary application by the 3rd Petitioner be dismissed. In supplementing, learned counsel, Mr. Lungu, submitted that Taylor v Lawrence1 was, in his words, "a unique and curious case"; that in that case, a rule was promulgated and applied ex post facto, a practice, he contended, that is not known in R13 (802) Zambian jurisprudence on account that rules of court are set out in either practice directions or in rules of court made and published by the Chief Justice. Mr. Lungu argued that Taylor v Lawrence1 would represent a dangerous precedent to our jurisprudence and demonstrated the dangers of wholesale importation of foreign law, citing the case of Ruth Kumbi v Robinson Zulu7 for authority. Mr. Lungu further submitted that Order I rules 1(1) and 1(2) deal with the same circumstance, that is, what is to happen when there is a lacuna in the practice and procedure of this Court. Counsel argued that rule 1 (1 ) of Order I sets a cut-off date whilst rule 1(2) opens up what is provided under rule 1(1). It was his submission that the presumption of law was that general stipulations do not derogate from specific stipulations. That under Order I rule 1(1) there is a specific stipulation that the cut-off date is 31 tDecember, 1999 while rule 1 (2) was s couched in general terms and cannot derogate from the specific cut-off date. In the alternative, Mr. Lungu submitted that Order I rule 1 (1 ) specifically refers to the jurisdiction of the Court while rule 1 (2) does not. That so far as rules dealing with the jurisdiction of R14 (803) the Court were concerned, they are to be dealt with in accordance with Order I rule 1(1) and, therefore, the cut-off date of 31st December, 1999 applies. Mr. Lungu added that Parliament did not intend to provide for meaningless paragraphs when one regards Order I rule 1 (1 ). In winding up his submissions, Mr. Lungu urged this Court to invoke Article 118(2)(e) of the Constitution as amended which enjoins this Court to administer justice without undue regard to technicalities, citing Henry Kapoko v The People8 for authority. Mr. Lungu contended that the rule in Taylor v Lawrence1 was a technicality and no particular content in respect to its compliance had been set out anywhere other than in the case itself and did not exist before it was pronounced. Counsel submitted that this being a Court of justice it could not adopt the manner of promulgating rules as set out in the Taylor1 case. Referring again to our decision in Henry Kapoko v The People,8 Mr. Lungu submitted that Article l 18(2)(e) is intended to avoid a manifest injustice by paying unjustifiable regard to a technicality. It was his contention that to set up a threshold on the requirement for leave without the comfort or notice which published rules afford would be a manifest injustice. That in the R15 (804) Taylor1 case the requirement for leave was treated as a curable defect and the court granted leave ex post facto. Counsel submitted that even if leave were a requirement, such requirement would only be regulatory and not fatal, citing Leopold Walford Zambia Limited v Unifred9 for authority. And Attorney General, Mr. Kalaluka, SC, submitted that Taylor v Lawrence 1 which the 3rd Petitioner was relying on, was , clear that there is no right of appeal without permission except in a few special cases. Mr. Kalaluka, SC asserted that the instant case was an exception to the rule that there can be no right to appeal without permission. Referring to the position in Taylor v Lawrence1 that an application for leave could be considered on paper and only allowed to proceed if the court so directed, Mr. Kalaluka, SC argued that the application to raise preliminary issues should fail because the requirement for leave was not absolute. Also, that undue regard or emphasis on paper applications offended Article 118(2)(e) of the Constitution as amended. In reply, Mr. Chimankata submitted that the 3rd Petitioner was not seeking to implement the Civil Procedure Rules now obtaining in the Court of Appeal in England as suggested by R16 I • (805) learned counsel Mr. Bwalya when he argued that the requirement for leave was only introduced in 2002 and subsequently incorporated in the Civil Procedure Rules which replaced the Supreme Court Practice 1999. Further, that Order I rule 1(2) was clear about invoking the practice that was promulgated by Lord Woolf in Taylor v Lawrence1; that this Court would not be making any rule or issuing any practice direction but would simply be adopting the practice as mandated by its own rules. Mr. Chimankata further submitted that the status of the Court of Appeal in England as an intermediary court as opposed to this Court which is an apex court did not matter. He argued that Order I required that in the event of a lacuna, this Court should adopt the practice and procedure obtaining in the Court of Appeal in England. That there was no rule that allows this Court to derogate from its own rules. Mr. Chimankata contended that the argument that the constitutional status of this Court prevented it from adopting the procedure in the Court of Appeal in England was not founded in law. In regard to the presumption of law that general stipulations do not derogate from specific stipulations, counsel argued that there was no general stipulation under Order 1 rule 1 (2) of the R17 (806) Rules; that the rule emphasized the phrase "for the time being" as opposed to giving a cut-off date. And on the 4th to 64th Respondents' alternative argument that rules on jurisdiction were to be dealt with in accordance with Order I rule 1(1), Mr. Chimankata's response was that section 9 of the Act was clear on how the jurisdiction of this Court is to be exercised and Order I rule 1 (2) was part of the rules of the Court. On the Attorney General's submission that the requirement for leave is an exception, Mr. Chimankata countered that Lord Woolf in Taylor v Lawrence1 was categorical that the requirement for leave or permission was mandatory and an application could not be considered unless the Court so directed. He contended that the application before this Court was not one for leave to appeal but whether the final decision of this Court can be reopened, with a view to setting it aside, without the permission of this Court. In regard to Article 118(2)(e) of the Constitution, Mr. Chimankata argued that the provision was not one that cures all defects as it was never the intention of the Constitution to oust the obligation of litigants to comply with the rules of court. R18 (807) We are grateful to the parties for their written and oral arguments, and the authorities cited, to which we have given careful consideration. From our standpoint, the key issue that falls for our consideration in this application to raise preliminary issues is whether this Court, on the application of a party, has jurisdiction to reopen a matter on which it has rendered a final decision with a view to setting aside a part of its judgment, where such application to reopen the matter is made without leave or permission of the Court. The gist of the 3rd Petitioner's contention is that a party seeking to reopen a final decision of the Court must apply for leave or permission to do so; that where permission is granted, the party can then be heard on the substantive application. The 3rd Petitioner argued that the 4th to 64th Respondents did not apply for permission before filing their Notice of Motion to set aside or reverse parts of the Judgment of 8thAugust, 2016 thus rendering their application incompetent before this Court. It was the 3rd Petitioner's submission that since neither the Act nor the Rules provide for the practice and procedure for reopening a judgment that has been perfected, resort must be had to the practice and procedure for the time being obtaining in the Court R19 (808) of Appeal in England. That pursuant to Order I rule 1 (2) of the Rules, the practice and procedure currently obtaining in the Court of Appeal in England is as was stated in the case of Taylor v Lawrence1 whereby a party. must apply for leave before making the application to reopen a final judgment. The counter argument from the 4th to 64th Respondents was that in terms of Order I rule 1 ( 1) of the Rules, the principle in Taylor v Lawrence1 was not applicable to the practice and procedure of this Court as it was decided after the cut-off date of 31st December, 1999. It was contended that the cut-off date was significant as far as civil procedure and practice in this country is concerned. Thus, the 4th to 64th Respondents' position was that the Notice of Motion to set aside or reverse parts of the Judgment of 8thAugust, 2016 was competently before this Court. The 3rd Petitioner's Notice of Motion to raise preliminary issues questions whether this Court has jurisdiction to proceed to hear the 4th to 64th Respondents' Notice of Motion, filed without leave of the Court, thus bringing into question its competency before this Court. It is trite that jurisdiction forms the basis upon which a court proceeds to consider or entertain matters that come before it. The learned authors of Stroud's R20 .. (809) Judicial Dictionary of Words and Phrases, 9th edition, define "jurisdiction" as follows: In its narrow and strict sense, the 'jurisdiction' of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors. In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its 'jurisdiction' ... or as to the circumstances in which it will grant a particular kind of relief which it has 'jurisdiction' ... to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances ... And as it was aptly put in the Kenyan case of Owners of the Motor Vessel v Caltex Oil Kenya Limited:10 Jurisdiction is everything. Without it a court has no power to take one more step, where a court has no jurisdiction there would be no basis for a continuation of proceedings pending the evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. This Court's jurisdiction is couched in clear terms in Article 128(1) of the Constitution as amended and as read with section 8(1) of the Constitutional Court Act ("the Act"). Article 128(1) reads: Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear - (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to the violation or contravention of this Constitution; (c) a matter relating to the President, Vice President or an election of a President; (d) appeals relating to election of Members of Parliament and councillors; and R21 (810) (e) whether or not a matter falls within the jurisdiction of the Constitutional Court.(our emphasis) And section 8(1) of the Act stipulates: Subject to Article 28 of the Constitution, the Court in exercise of its original and final jurisdiction may determine - (a) a matter relating to the interpretation of this Constitution; a matter relating to a violation or contravention of the Constitution; (b) a petition to challenge the nomination of a candidate for election as Republican President; (c) a matter relating to the Republican President, Vice President or an election of a Republican President; (d) appeals relating to election of Members of Parliament and councillors; (e) an application to review a decision of the Electoral Commission of Zambia in the delimitation of constituencies and wards; (f) a matter referred to the Court by the Republican President pursuant to the Constitution; and (g) whether or not a matter falls within the jurisdiction of the Court. (our emphasis) For reasons which we state ahead in this Ruling, we place emphasis on the Court's power to examine whether or not a matter falls within its jurisdiction. Section 9 of the Act provides as follows: The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the rules. Further, section 3l(l)(a) of the Act states: The Chief Justice may, by statutory instrument, make rules for regulating - (a) the practice and procedure of the Court and with respect to appeals to, or reviews by, the Court; R22 (811) It is trite that pursuant to section 31(1)(a) aforesaid, the Rules that regulate the practice and procedure of this Court are contained in Statutory Instrument No. 37 of 2016. Of particular significance to the instant case, and as acknowledged by the parties in their arguments, where the Court's Rules do not provide for a particular point of procedure, Order I of the Court's Rules stipulates the practice and procedure that is to be followed. Order I is couched in these te'rms: 1.(1) The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by the Act and these Rules, the Criminal Procedure Code or any other written law, or by such rules, orders or directions of the Court as may be made under the Act, the Criminal Procedure Code or such written law, and in default thereof in substantial conformity with the Supreme Court Practice, 1999 White Book of En land and the law and ractice a licable in En land in the Court of A eal u to 31st December 1999. (2) Where the Act and these Rules do not make provision for any particular point of practice or procedure. the practice or procedure of the Court shall be as nearly as may be in accordance with the law and ractice for the time bein observed in the Court of A eal in Enqland.(emphasis added) The two positions taken by the parties in the instant case are in clear contrast of each other. As noted above, the 3rd Petitioner anchored its application on Order I rule 1 (2), that it is through that provision that the principle in Taylor v Lawrence1 was applicable to the practice and procedure of this Court, requiring permission of the Court before a party can apply for the reopening of a final decision of the Court. On the other hand, the R23 (812) 4thto 64th Respondents contended that the crucial provision was Order I rule 1 ( 1) which placed a cap on the applicable practice and procedure of the Court of Appeal in England, rendering the principle in Taylor v Lawrence1 inapplicable to the practice and procedure of this Court. The question then is, which is the applicable position at law, particularly in the circumstances of this case? To answer that question, we find section 2 of the English Law (Extent of Application) Act as amended by Act No. 14 of 2002 helpful. It reads: Subject to the provisions of the Constitution of Zambia and any other written law - (a) the common law; and (b) the doctrines of equity; and (c) the statutes which were in force in England on the 17thAugust, 1911 (being the commencement of the Northern Rhodesia Order in Council, 1911 ); and (d) any statutes of later date than that mentioned in paragraph I in force in England, now applied to the Republic, or which hereafter shall be applied thereto by any Act or otherwise; and (e) the Su reme Court Practice Rules of En land in force until 1999· Provided that the Civil Court Practice 1999 (The Green Book) of England or any other civil court practice rules issued after 1999 in England shall not apply to Zambia except in matrimonial causes: shall be in force in the Republic.(emphasis added) For pu rposes of the instant case our emphasis is on paragraph (e) of the above provision. Section 2(e) unequivocally states that in terms of civil court practice, what is applicable in R24 .. (813) Zambia are the Supreme Court Practice Rules of England in force until 1999. The enactment expressly excludes from application in this country any other civil court practice rules promulgated in England after 1999. As submitted by counsel for the 4th to 64th Respondents, the 1999 cut-off date is reflected in other legislation and rules regulating the civil practice and procedure of our superior courts, that is, section 10 of the High Court (Amendment) Act No. 7 of 2011; section 8(2)(a) of the Court of Appeal Act No. 7 of 2016; and section 8(2)(b) of the Supreme Court (Amendment) Act No. 8 of 2011. In addition, section 10(2) of Act No. 7 of 2011 and section 8(3) of Act No. 8 of 2011 expressly exclude the application of the Green Book, in line with section 2 of the English Law (Extent of Application) Act as amended by Act No. 14 of 2002. Neither section 9 of the Act nor Order I in the Court's Rules· expressly mentions the Civil Court Practice, 1999 (Green Book) of England or any civil practice rules issued 1n England after 31st December, 1999. That notwithstanding, section 2 of Act No. 14 of 2002 aforesaid settles the position of the Green Book in regard to civil court practice in Zambia. R25 (814) In the substantive Notice of Motion, the 4th to 64th Respondents seek to have this Court reopen or revisit parts of its Judgment of 8thAugust, 2016. We have noted, and as correctly observed by counsel for the 3rd Petitioner, that the Act or the Court's Rules provide no clear guidance on the issue of the Court reopening or revisiting its final decision. Even the Supreme Court Rules 1999 provide no procedural comfort on this point. The Constitution as amended itself is silent on the matter. Notably, with respect to the Constitutional Court, there is no provision akin to Article 125(3) which provides that "the Supreme Court is bound by its decisions, except in the interest of justice and development of jurisprudence." The contention by the 3rd Petitioner is that the 4th to 64th Respondents cannot move this Court to reopen its final decision without first seeking leave or permission of the Court to do so. The 4th to 64th Respondents argue that leave 1s not required as the Court's Rules do not provide for it. Their alternative argument is that should the Court determine that leave is a threshold requirement to revisit a final decision of this Court, then the Court should regard the Respondents' omission to seek R26 (815) leave of the Court as a technicality within the ambit of Article l 18(2)(e) of the Constitution as amended. Earlier, we took the liberty to reproduce 1n full the jurisdiction of this Court as provided in Article 128 ( 1) of the Constitution as read together with section 8(1) of the Act. We placed emphasis on the mandate of the Court to determine whether or not a matter falls within its jurisdiction. In our considered view, such determination includes whether or not, as in the instant case, proper procedure has been employed to move the Court. It is trite that normally relevant statutory provisions or the Court's Rules will provide guidance on the applicable procedure. The question that confronts us in the instant case is that there is no statutory or procedural provision addressing the reopening of a final Judgment of this Court. Should then, this Court simply throw its hands up in the air on this point? We do not think so. Instead, we find solace in the sentiments of Lord Morris in Connelly v Director of Public Prosecutions11 wherein he said: There can be no doubt that a court which is endowed with particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of R27 (816) its process and to defeat any attempted thwarting of its process.(our emphasis) Also, Lord Diplock in Bremer Vulcan v South India Shipping12 , opined that a court has power to control its own procedure so as to prevent its being used to achieve injustice; that such power is inherent in its constitutional function as a court of justice. This Court's jurisdiction involves matters relating to the supreme law of the land, the Constitution. Its decisions in the exercise of that function are final. The authors of Blacks Law Dictionary, 10th edition, define 'finality' as "the quality of being complete and unchangeable." Determining matters to their finality involves, among other things, the Court's control of, and adherence to, established practice and procedural imperatives. It is our considered view that even in the absence of express procedural guidance this Court has inherent authority to control its own procedure. We are persuaded by the views of Lord Morris in the Connelly11 case that such inherent power is to suppress any abuse of process. It is to ensure efficacious discharge of the Court's constitutional mandate. In this regard, our firm view is that the efficacy of this Court's adjudicatory function would suffer defeat if its final decisions were open to casual challenge in the form of applications for revisiting or setting aside whole or R28 (81 7) parts of the said decisions at the instance of an aggrieved or losing litigant. We agree with the 3rd Petitioner that such an approach would bring disarray and uncertainty to the proper functioning of this Court. Our position is that revisiting this Court's final decision should be considered extraordinary and a party seeking to reopen a decision of this Court must make a formal application for leave to reopen a final judgment of this Court. We, accordingly, hold that the 4th to 64th Respondents required leave of this Court to file their Notice of Motion to set aside or reverse parts of the Judgment of 8thAugust, 2016. That no such leave was sought and obtained renders the said Notice of Motion incompetent before this Court. Before we conclude, we wish to briefly comment on Mr. Lungu's alternative argument that this Court should invoke Article 118(2)(e) of the Constitution as amended. Our view, in the circumstances of this case, is that we find it unnecessary to address this aspect any further. We find that, on the basis of this Court's inherent power to control its own procedure, the 3rd Petitioner's preliminary issue is R29 \.,, I -' • (818) meritorious and it is accordingly upheld. Each party shall bear its own costs. H. Chibomba President Constitutional Court A. M. Sitali M. S. Mulenga Constitutional Court Judge Constitutional Court Judge ................. :~ ................. . ·············~··········· E. Mulembe M. M. Munalula Constitutional Court Judge Constitutional Court Judge R30