MULUBISHA V ATTORNEY GENERAL (2020/CCZ/0013) (24 April 2020) – ZambiaLII

IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: AND IN THE MATTER OF: THE CONSTITUTIONALITY OF SECTIONS 3, 4, 5, 6 AND 7 OF THE CHIEFS ACT, CAP. 287 OF THE LAWS OF ZAMBIA BETWEEN: WESBY MULUBISHA PETITIONER AND THE ATTORNEY GENERAL RESPONDENT Before Hon. Lady Justice Prof. M. M Munalula in Chambers on 16th April and 24th April 2020. For the Petitioner: Mr. C. K. Bwalya of D.H Kemp and Company. For the Respondent: Mr. L. Kalaluka, Attorney General with Ms. D. M. Sharnabobo, Principal State Advocate and Ms. N. K. Choongo, State Advocate from the Attorney General's Chambers. RULING Cases referred to: 1. D. E. Nkhuwa v Lusaka Tyre Services Limited (1977) Z.R. 43 (SC) 2. Mwiya Mutapwe v Shomeno Dominic 2017CC/A008 3. lnonge Mubika v Mukelabai Pelekelo 2017/CC/A009 Legislation referred to: 1. The Constitution of Zambia (Amendment) Act No. 2 of 2016 2. The Constitutional Court Rules S.I No. 37 of 2016 3. The Chiefs Act, Chapter 287 of the Laws of Zambia 4. The Rules of the Supreme Court, 1999 (White Book) R3 "kingdom". That the omission caused serious ramifications in places where there are Paramount Chiefs and Kings whose roles have been watered down. That the Applicant could not file the application for leave to correct the alleged accidental omission within seven (7) days as there was need to consult with the stakeholders in order to appreciate the full extent of the said omission. In support, the Applicant exhibited a copy of a letter from Messrs Elis & Co. representing some Paramount Chiefs, namely, The Litunga, Chitimukulu, Kalonga Gawa Undi and Mpezeni, marked as DMS1. The Applicant contended in the written Skeleton Arguments that Order XV rule 3 of the CCR generally prescribes seven (7) days as the time within which an application to correct an accidental omission ought to be made. That this application for extension of time had been necessitated by the fact that the Applicant was out of time. That Order XV rule 7 of the CCR as read together with Order 3 rule 5 (2) of the White Book shows that this Court is empowered to extend the time within which an action ought to be taken even after the prescribed time has expired. It was argued that the delay in making the application was not deliberate but due to the need for consultations and this was a proper case for the Court to exercise its discretion to allow the Applicant to apply for leave to make the relevant application. R4 In opposing the application, the Respondent, filed an Affidavit in Opposition together with Skeleton Arguments. The Respondent deposed in his Affidavit that it is not true that this Court made any accidental omissions in its Judgment. That Zambia is a Republic and the word "Kingdom" does not appear anywhere in the Constitution. He further deposed that a period of 117 days had lapsed from the date of the final Judgment to the date of the filing of the Application before the Court. That he would be prejudiced if the Application was granted as the finality of the Judgment of this Court would be put in doubt. In arguing his case the Respondent began by conceding that this Court does have discretion under Order XV rule 7 of the CCR to extend time limited by the CCR or a decision of the Court except where time is limited by the Constitution. He argued however, that there is no provision for special leave under the CCR and thus the Application was misconceived. That even assuming that the Application was fashioned around Order XV rule 7 of the CCR, it would still fail on grounds that the Applicant has not made out a case upon which the discretion ought to be exercised by this Court in its favour. Reliance was placed on the case of D. E. Nkhuwa v Lusaka Tyre Services Limited1 to support the principle that the delay in making the application was inordinate and that there was inadequate material before the Court to warrant RS the exercise of its discretion. Further, that the Respondent would be prejudiced by the extension of the period limited under Order XV rule 3 of the CCR. That the Applicant had failed to establish a prima facie case on the prospects of succeeding with the proposed application. In augmenting, Counsel for the Respondent added that under Order XV rule 3 of the CCR, it was not the application for the correction that had to be made within seven (7) days but the correction of the accidental slip itself. That 155 days had since elapsed from the date of the Judgment. It was also Respondent counsel's view that the proceedings in casu could not be used as a platform to make pronouncements concerning the customs, traditions and other practices in various chiefdoms that ought to be the subject of separate tailor made proceedings. That the Court's judgment had brought finality to the real question which had been raised before the Court. In Reply, the Attorney General reiterated earlier arguments placing reliance on exhibit OMS1. On the contention that the word "Kingdom" does not appear in the Constitution, it was argued in rebuttal that there is no law which restricts this Court to making reference only to a term or word that is in the Constitution. Further, that only three months had elapsed since the Court made its Judgment. Finally, that the provisions of Article 118 of the R6 Constitution which require that this Court dispense substantive justice without undue regard to technicalities should be resorted to. I have carefully considered the Application and the arguments submitted by both parties. I am mindful that the only question before me is whether to allow the Application for extension of time in which to make the requisite application out of time for leave to correct an alleged accidental slip. Specifically, the Applicant is asking this Court to extend the time within which it can apply for leave to file a Notice of Motion asking the Court to correct an alleged accidental omission made in its Judgment of 27th November, 2019. My consideration of the submissions is thus confined to this question. It is the position of both the Applicant and the Respondent that Order XV rule 7 of the CCR as read together with Order 3 rule 5 (2) of the White Book gives this Court jurisdiction to extend the time within which a particular step can be taken. That this power extends to instances where time has expired such as the case in casu. Order XV rule 7 of the CCR states as follows: The Court may extend time limited by these rules, or by a decision of the Court, except where time is specifically limited by the Constitution. It is not in dispute that this Court does have jurisdiction to extend the time within which a party may take a step required to be taken under the Rules R7 as provided for under Order XV rule 7 of the CCR. The Respondent has further pointed out however that the power to extend time like any other discretion ought to be exercised judiciously. Indeed, in interpreting this rule, the Court has already laid emphasis on the need for the party seeking relief to act promptly and show good cause for the extension of time. In the case of Mwiya Mutapwe v Shomeno Dominic2 this Court held that under Order XV rule 7, the Court is empowered to extend the time within which certain steps may be taken by a party to the proceedings and that this power is discretionary. That in determining an application for the extension of time, the Court is guided by two principles; the first of which is whether or not the application has been made promptly, that is, there has been no inordinate delay in making the application; and secondly, whether there will be prejudice caused to the Respondent if the said application for extension of time is granted. Ordinarily, going by Order XV rule 3, the Applicant should have made the application for leave to file Notice of Motion to correct any purported accidental omissions by or before 6th December, 2019 since the impugned Judgment was delivered on 27th November, 2019. It was argued by the Respondent that the 117 days that had lapsed from the time the Judgment was delivered to the date of the filing of this application constituted inordinate R9 opportunity for the Applicant to pursue the leave required to make their case. The application for extension of time is granted. It is hereby ordered that the relevant application be filed before the full Court within seven (7) days hereof failure to which it shall stand dismissed. Costs shall be in the cause. _________i .\.~--------- Prof M M Munalula Constitutional Court Judge