Margaret Mwanakatwe v Charlotte Scott and Anor (2016/CC/A018; APPEAL NO. 14 OF 2016) (19 March 2018) – ZambiaLII

IN THE CONSTITUTIONAL COURT OF ZAMBIA APPEAL NO. 14 OF 2016 HOLDEN AT LUSAKA 2016/CC/A0lS (C Jurisdiction) . THE PARLIAMENTARY PETITION RELATING TO THE PARLIAMENTARY ELECTIONS HELD ON 11 AUGUST, TH INT THE CONSTITUTION OF ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: ARTICLES 1, 2, 5, 8, 9, 45, 46, 47, 48, 49,' 50, 54, 70, 71, 72 AND 73 OF THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1 OF THE LAWS OF ZAMIBA AND IN THE MATTER OF: SECTIONS 29, 37, 38, 51, 52, 55, 58, 59, 60, 66, 68, 69, 70, 71, 72, 75, 76, 77, 81, 82, 83, 86, 87 AND 89 OF THE ELECTORAL PROCESS (ELECTORAL CODE OF CONDUCT) ACT NO. 35 OF AND IN THE MATTER OF: THE ELECTORAL CODE OF CONDUCT BETWEEN: MARGARET MWANAKATWE APPELLANT AND CHARLOTTE SCOTT lST RESPONDENT ATTORNEY GENERAL 2nd RESPONDENT Coram: Sitali, Mulenga and Mulembe, JJC On 14th June, 2017 and 19th March, 2018 Rl For the Appellant Mr B. Mutale SC, Ellis and Company Mr E. S. Silwamba SC and Mr J. Jalasi, Eric Silwamba, Jalasi and Linyama Legal Practictioners Mr K.F. Bwalya and Ms. N. Liswaniso, KBF and Partners Mr M. Lungu, Lungu Simwanza and Company For the 1st Respondent: Mr. M.H. Haimbe, Malambo and Company Mr Keith Mweemba, Keith Mweemba and Company Mr G. Phiri, PNP Advocates For the 2nd Respondent: Mrs K. N. Mundia, Assistant Senior State Advocate RULING Sitali, JC delivered the Ruling of the Court. Cases cited: 1. Hakainde Hichilema and Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu and Three Others 2016 /CC/ 0031. 2. Newplast Industries v Commissioner of Lands and Attorney General (2001) ZR 51. 3. Bank of Zambia v Aaron Chungu and Two Others (2008) ZR 81 volume 1. 4. Wynter Kabimba v Attorney-General (1995-1996) ZR 152. 5. Sonny Paul Mulenga and Others v Investrust Bank Zambia Limited (1999) ZR 101. 6. Chikuta v Chipata Rural Council (1974) ZR 241. R2 7. Bank of Zambia v Aaron Chungu, Access Leasing Limited and Access Financial Services Limited (2008) volume 1 ZR 159. Legislation referred to: 1. The Constitution of Zambia Chapter 1 of the Laws of Zambia Articles 72 (2) (h) and 73 (4). 2. The Constitutional Court Act No. 8 of 2016. 3. The Electoral Process Act No. 35 of 2016 4. The Constitutional Court Rules, Statutory Instrument No. 37 of 2016, Order IV rule 2 (2). By Notice of Motion filed pursuant to Article 118 (1), (2) (e) and (3) (c) of the Constitution, section 3 {l), (3) and (5) of the Constitutional Court Act No. 8 of 2016, and Orders V rule 5, 9 andl9 and XV (1) (g) of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016, the 1st Respondent brought this application for the rehearing by the full bench of an application which was previously before a single Judge of this Court for a stay of the judgment of the High Court dated 24th November, 2016. pending appeal, which application was dismissed. The notice of motion was supported by an affidavit sworn by Mulambo Hamakuni Haimbe, counsel for the 1st Respondent. The facts leading to this application as deposed to in the supporting affidavit are that the Appellant and the 1st Respondent were candidates for the Lusaka Central Constituency seat during the 11th August, 2016 general elections. Following the declaration of the R3 Appellant as duly elected Member of Parliament for Lusaka Central Constituency, the 1st Respondent petitioned the High Court under Cause No. 2016/HP/EP/0039. In its judgment dated 24th November, 2016, the High Court nullified the election of the Appellant and declared that she was not duly elected as Member of Parliament for Lusaka Central Constituency. Dissatisfied with the judgment nullifying her election as Member of Parliament, the Appellant filed a notice of appeal and a memorandum of appeal on 24th November, 2016. On 3rd December, 2016, the Appellant applied to the High Court for an order to stay execution of its judgment pending appeal to this Court. The application was denied with leave to appeal to this Court. The Appellant renewed the application for an order for stay of execution of the judgment of the High Court before a single Judge of this Court. The single Judge ruled that the application for a stay of execution of the judgment of the High Court was irrelevant because when there is an appeal the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of this Court. The single Judge on that basis dismissed the Appellant's application. Following the ruling of the single Judge, the 1st Respondent now seeks by way of Notice of Motion, a rehearing of the Appellant's R4 . ' ' \ a application for stay of execution of the judgment of the High Court by the full Court. The Respondent filed heads of argument in support of the notice 1st of motion for the rehearing by the full bench of the Appellant's application for a stay of judgment of the High Court dated 24th November, 2016, which skeleton arguments Counsel for the 1st Respondent relied on at the hearing of the application. Counsel further relied on the 1st Respondent's skeleton arguments in opposition to the application to stay execution of judgment filed before the High Court on 29th November, 2016 and also on the 1st Respondent's skeleton arguments in opposition to the application to stay execution of judgment filed on 8th December, 2016 on the renewed application before the single Judge. The gist of the 1st Respondent's skeleton arguments in support of the notice of motion before us was that this Court possesses the requisite jurisdiction to hear this application as the question whether or not this Court has jurisdiction to rehear an application that was before a single Judge of this Court was settled in the obiter dicta handed down ex tempore by the President of this Court, her Ladyship Justice Chibomba during the hearing of the petitioners' renewed application for leave to RS amend the petition in the case of Hakainde Hichilema and Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu and Othersl11. The 1st Respondent submitted that her objection to the Appellant's application for a stay is premised, inter alia, on her contention that there is no provision in the law that allows a Member of Parliament (MP) whose election has been nullified by the High Court to retain her seat in the National Assembly pending the final determination of the appeal by this Court. She stated that Article 73 (4) of the Constitution as read with Article 73 (1) only applies to High Court proceedings and does not apply to election petition appeals. The 1st Respondent argued that the nullification of the election of the Appellant triggered section 108 (4) of the Electoral Process Act which provides that once the High Court nullifies the election of an MP and does not declare any other person as a winner, there is a vacancy in the National Assembly relating to the concerned seat until it is filled. That until the nullification of the election is reversed on appeal, the Appellant whose seat has been nullified cannot reclaim her seat. The 1st Respondent argued that the Appellant had contended as a way of getting round section 108 (4) of the Electoral Process Act that in terms of Article 72 (2) (h) of the Constitution, a seat becomes vacant, inter alia, when this Court declares a candidate disqualified following a R6 .. ... decision on appeal which nullifies the election of a candidate. That the correct position in terms of section 108 (4) of the Act is that a seat becomes vacant when the High Court nullifies an election and remains vacant until the nullification is reversed and the vacancy is filled by the person declared winner by this Court. The 1st Respondent conceded that the purpose of a stay is to maintain the status quo but argued that the status quo to be maintained was the status quo ante which subsisted immediately prior to the election. The 1st Respondent contended that the Appellant's argument that the seat would be declared vacant by the Speaker of the National Assembly if a stay were not granted, thus rendering the appeal nugatory, does not aid the Appellant nor justify the grant of a stay. The 1st Respondent submitted that the legislature intended that none of the contesting parties should be allowed to hold office as MP once a seat was nullified by the High Court. It was further argued that the appeal is unlikely to succeed and that the stay therefore ought not to be granted. In the submissions before the single Judge of this Court, the 1st Respondent argued that this Court has no jurisdiction to grant the order sought by the Appellant as a stay was not tenable at law as it has the same effect as an order of injunction to prevent the taking of steps by the R7 • I \ Speaker and the Electoral Commission of Zambia pursuant to Article 72 (8) and Article 57, respectively. The 1st Respondent argued that the proper course of action the Appellant should have taken was to seek for an appropriate order of injunction or other prohibitory order and not attempt to disguise the relief sought as a stay. The 1st Respondent submitted that according to the case of N ewplast Industries v the Commissioner of Lands and Attorney-General12l a party 1s obliged to abide the mode of commencement prescribed in a statute 1n seeking relief before court. That in this case, the Appellant had violated the teaching in the Newplast Industries case by attempting to seek a remedy which is not available to her in the form of a stay and without following prescribed procedure. The 1st Respondent submitted that going by the authority in the Newplast Industries case, the application must fail as it is fatally defective. The 1st Respondent further submitted that by seeking a stay, the Appellant is in effect asking this Court to reverse a declaratory order made by the High Court, which is not tenable at law. The 1st Respondent invited us to consider and pronounce ourselves on the effect of Article 72 (4) of the Constitution if we should take the view that upholding a nullification of an election is the same as disqualifying a candidate under R8 Article 72 (2) (h) which, according to the 1st Respondent, would entail that a person whose election is nullified would automatically be ineligible to stand in the ensuing bye-election and to hold public office in view of the provisions of Article 74 (1) of the Constitution. The 1st Respondent submitted that one of the arguments canvassed by the Appellant before the single Judge and which he declined to pronounce himself upon was to the effect that section 108 (4) of the Electoral Process Act is in conflict with the Constitution and that its provisions ought therefore to be struck down as being unconstitutional. It was argued that for this argument to succeed, there must be a provision of the Constitution that the section does violence to and that in this case, there is no constitutional provision which section 108 (4) can be said to be in conflict with so that it should be struck down. That on the contrary, by providing that a seat becomes vacant upon the High Court nullifying the election of a candidate, the section is in accord with the provisions of Article 73 (4) of the Constitution which provides that a person whose election is petitioned shall hold the seat pending the determination of the petition. The 1st Respondent concluded by stating that there are no provisions of the Constitution that section 108 (4) can be considered to be in conflict with given the correct interpretation given by the 1st R9 .. \ Respondent regarding the import of Article 72 (2) (h). The 1st Respondent urged that on the whole, the application for a stay lacks merit and should therefore be dismissed with costs. st In opposing the 1 Respondent's notice of motion, the Appellant filed two separate heads of argument on June, 2017 and on 12th 8th June, 2017 which counsel for the Appellant relied on at the hearing. The Appellant submitted that although the 1st Respondent has moved the full Court for a rehearing of an application to stay the judgment of the High Court and terms the notice of motion as a rehearing, it is in essence an appeal against and a challenge of the decision of the single Judge of this Court. This is because the manifest intent of the rehearing is to dismiss the application for a stay as evidenced by the conclusion of the 1st Respondent's submissions. Regarding the 1st Respondent's argument that this Court has the requisite jurisdiction to hear this application pursuant to obiter dicta that was handed down ex tempore by her Ladyship Justice Chibomba during the hearing of the petitioners' renewed application for leave to amend the petition in the · case of Hakainde Hichilema and Another v Edgar Chagwa Lungu and Others(1l, the Appellant submitted that it is a well established principle of law that obiter dicta do not form part of the reason for the decision and as such are not binding. That this position RlO was buttressed by the observation in the case of Bank of Zambia v Aaron Chungu and 2 Othersl3l in which the Supreme Court stated as follows: "The Respondent, as well as its advocates, are aware, just as the Court is, that the above was a mere obiter dictum which did not form part of the decision or the ratio decidendi of the court. The Respondent cannot act on the obiter dictum which is not binding." It was submitted that the jurisdiction of the Constitutional Court is clearly set out under Article 128 of the Constitution and that Article 129 (2) of the Constitution states that the Constitutional Court shall be constituted by one Judge when hearing an interlocutory matter. That the application before the single Judge was an interlocutory application and that since he was exercising the powers of the Constitutional Court, the Court became functus officio after the decision was rendered on 27th December, 2016. The Appellant contended that from the foregoing provision, it is clear that the law does not cloth the full bench of this Court with the jurisdiction to rehear an interlocutory application that was fully and conclusively determined by a single Judge of this Court and that, on that point alone, this application ought to be dismissed with costs. The Appellant argued in the alternative, that if this Court finds that it has jurisdiction to hear the matter, then the single Judge was on firm ground when he held that there exists a stay by operation of the law or Rll The Appellant contended that the grounds in the memorandum of appeal and the Heads of Arguments have sufficiently demonstrated that the appeal has good prospects of success and that should a bye-election take place before the appeal is determined, the appeal may be rendered nugatory. She contended that there is a real risk that a bye-election may take place if a stay is not granted. In conclusion, the Appellant submitted that the 1st Respondent commenced this action by way of notice of motion wherein she implores this Court to give interpretation to Articles 73 (4) and 72 (2) (h) of the Constitution. That it is trite law as espoused in the case of Newplast Industries v Commissioner of Lands and Attorney-General 111 that what determines the mode of commencement is not the issues raised in the action or the reliefs sought. The correct position instead is that the mode of commencement of any action is generally provided for by the relevant statute. The Appellant further submitted that section 9 of the Constitutional Court Act No. 8 of 2016 provides that: "The Jurisdiction vested in the Court shall as regards practice and procedure, be exercised in the manner provided by this Act and the rules." The Appellant contended that, in the present case, the 1st Respondent did not follow the correct procedure of bringing the Rl4 Constitutional provisions for interpretation by this Court, as the correct procedure to commence an action for interpretation is by way of originating summons and not by notice of motion as stipulated by Order IV rule 2 (2) of the Rules. The Appellant submitted that this matter is clearly not rightly before this Court and that the Court therefore has no jurisdiction to entertain the application and should dismiss it with costs to the Appellant. We have considered the arguments on both sides which were canvassed in the respective party's heads of argument in support of, and in opposition to, the application. Having considered the application and the arguments of the parties, it is our firm view that the cardinal issue we must determine is whether the application by the 1st Respondent for a rehearing by the full bench of the Co~rt of the Appellant's application for a stay of execution of the judgment of the Court below is properly before us. In other words, the question we must address before we consider anything else is whether this Court has the requisite jurisdiction to entertain the application which has been brought before us. We say so because the first thing the 1st Respondent rightly addressed in her arguments in support of her application for the full Court to rehear the Appellant's RlS .. ' \ application which was before a single Judge was that of the jurisdiction of this Court to rehear the matter as prayed. The 1st Respondent argued in her heads of argument that this Court has the requisite jurisdiction to hear this application based on the obiter dicta that was handed down ex tempore by the President of this Court, Justice Chibomba, during the hearing of the petitioners' renewed application for leave to amend the petition in the case of Hakainde Hichilema and Another v. Edgar Chagwa Lungu and Three Others.111 The jurisdiction of this Court is clearly stated in Article 128 (1) of the Constitution and is reiterated in section 8 (1) of the Constitutional Court Act No. 8 of 2016 which we shall refer to going forward in this Ruling as the Act. With regard to the sittings of the Court, Article 129 (1) of the Constitution provides that: (1) The Constitutional Court shall be constituted by an uneven number of not less than three Judges, except when hearing an interlocutory matter. Article 129 (2) of the Constitution further provides that: (2) The Constitutional Court shall be constituted by one Judge when hearing an interlocutory matter. Section 5 of the Act provides for the powers of a single Judge of this Court in the following terms: 5. A single Judge of the Court may exercise a power vested in the Court not involving the decision of an appeal or a final decision in the exercise of its original jurisdiction. R16 It was on the basis of the provisions of Article 129 (1) and (2) and section 8 (1) of the Act that the Appellant renewed her application for an order for a stay of execution of the Judgment of the High Court dated 24th November, 2016 before a single Judge of this Court, as the application is interlocutory in nature. The single Judge of this Court in exercise of the powers of the Court as set out in section 5 of the Act determined the matter in his Ruling dated 27th December, 2016. The 1st Respondent has moved the full Court to rehear the application for an order of stay of execution of the High Court Judgment dated 24th November, 2016 following the Ruling of the single Judge of this Court dated 27th December, 2016. The 1st Respondent has not cited any provision of the law that entitles her to move the full Court to rehear an interlocutory matter which has been determined by a single Judge of this Court. The Notice of Motion shows that the application for the rehearing by the full bench of this Court of the Appellant's application for a stay of the judgment of the High Court is brought pursuant to Articles 118 (1), (2) (e) and 3 (c) of the Constitution, section 3 (1), (3) and (5) of the Constitutional Court Act No. 8 of 2016 and Orders V rule 5, 9 and 19 and XV (1) (g) of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016. Article 118 (1) of the Constitution reads as follows: Rl7 J r, I \ (1) The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability. Article 118 (2) (e) provides that: (2) In exercising judicial authority, the Courts shall be guided by the following principles: (e) justice shall be administered without undue regard to procedural technicalities. Further, Article 118 (3) (c) states as follows: (3) Traditional dispute resolution mechanisms shall not (c) be repugnant to justice and morality. Section 3 (1) (3) and (5) of the Act read as follows: (1) Subject to subsections (2) and (3), the Court shall, when the Court is determining a matter, be constituted by an uneven number of not less than three Judges. (3) The full bench of the Court shall be constituted by an uneven number of not less than five Judges when determining matters that require a full bench. (5) The determination of any question before the Court shall be according to the opinion of the majority of the Judges of the Court hearing the case. Lastly Order V rules 5 and 9 of the Rules of this Court provide as follows: 5. Where a respondent is added or substituted, the petition, originating notice of motion or originating summons shall, unless the Court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition or originating notice of motion shall be served on the new respondent and, if the Court thinks fit, on the original respondents. R18 9. The Court may, during a trial, take such measures as it considers necessary and proper for the prevention of communication with witnesses awaiting examination. There is no rule 19 under Order V of the Rules as purported by the 1st Respondent in moving the motion before us. Order XV (1) (g) of the Rules provides as follows: 1. Upon hearing a matter under the Act, the Court may grant anyone or more of the following remedies: (g) any other remedy that the Court may consider just. We observe that Articles 118 (1), (2) (e) and 3 (c) set out the principles which guide the Courts in the performance of their adjudicative du~ies and in the administration of justice. Section 3 (1) and (3) of the Act relate to the constitution of the Court when it is determining matters before it while section 3 (5) explains how a matter before the full Court comprising three or more Judges shall be determined. Order V rules 5 and 9 of the Rules provide for amendment of originating process and for prevention of communication with witnesses respectively, wh~le Order XV rule 1 (g) empowers this Court to grant such other remedy as the Court may consider just upon hearing a matter. It will be noted that none of the provisions of the Constitution, the Act or the Rules of this Court which the 1st Respondent has cited as the basis for bringing the motion before us, empower the full bench of this R19 Court to rehear a matter determined by a single Judge in the absence of an appeal from a determination of the single Judge on an interlocutory application. That, as we see it, explains why the 1st Respondent in her submissions cites the obiter dictum handed down by the President of this Court in the Hakainde Hichilema case as the authority for moving the full Court to rehear the Appellant's application for a stay of execution. We note that the 1st Respondent does not purport to appeal to the full bench of this Court against the decision of the single Judge but merely seeks that the interlocutory application which was determined by the single Judge be reheard by the full bench of this Court. We are mindful that the Constitution does not expressly provide for an appeal from a decision of a single Judge of the Court to lie to the full bench of this Court. However, Article 120 (3) (a) of the Constitution provides that the processes and procedures of the Courts shall be prescribed. Pursuant to the provisions of Article 120 (3) (a) of the Constitution, section 31 (1) (a) of the Act provides that: 31. (1) 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; The Constitutional Court Rules contained in Statutory Instrument No. 37 of 2016 ·and which regulate the practice and procedure of this R20 Court were made pursuant to section 31 ( 1) (a) of the Act. Order I rule 1 provides as follows: 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 England and the law and practice applicable in England in the Court of Appeal up 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 and procedure of the Court shall be as nearly as may be in accordance with the law and practice for the time being observed in the Court of Appeal of England. (Emphasis added) As the Rules of this Court do not make provision for the procedure to be followed on appeal from a decision of a single Judge to this Court, the default procedure set out in Order I rule 1 of the Rules provides a solution. Order 59 rule 14 (12) of the Rules of the Supreme Court 1965, 1999 edition, volume 1, (the White Book) provides as follows: "An appeal shall lie to the Court of Appeal from any determination by a single Judge, not being the determination of an application for leave to appeal, and shall be brought by way of fresh application made within 10 days of the determination appealed against." (Emphasis added) When the default procedure provided for in Order 59 rule 14 (12) of the White Book which is set out above, is applied to our situation, it follows that an appeal from any decision by a single Judge of this Court, other than a determination of an application for leave to appeal, can be R21 - ' made to the full Court comprising three or more Judges. However, the application must be brought within 10 days of the decision appealed against and takes the form of a fresh application. In terms of Order 59 rule 14 ( 1) all inter partes applications to the full Court or to a single Judge must be made by summons. Para 59/ 14/2 note 3 of the White Book states that a notice of motion is no longer the correct procedure. In the present case, as we observed earlier on, the 1st Respondent in this case does not purport to appeal against the determination of the single Judge on the Appellant's application for an order to stay execution of the lower Court's judgment dated 24th November, 2016. Rather, the 1st Respondent seeks a rehearing of the application that was before the single Judge because, as Mr. Haimbe stated in paragraphs 9 and 10 of the affidavit in support of the Notice of Motion, the single Judge in his ruling declined ·t o pronounce himself on certain aspects of the law including, among others, the question as to whether section 108 (4) of the Act is in conflict with the Constitution, and rightly stated that the determination of that question was the preserve of the full bench of this Court. Counsel further stated that in view of the foregoing, certain pertinent issues relating to the application were not conclusively resolved by the single Judge. He stated that for that reason, the 1st Respondent R22 seeks the rehearing of the application so that all the pertinent issues in the matter are conclusively determined. A reading of paragraphs 9 and 10 of the 1st Respondent's affidavit in support of the motion before us suggests to us that the purpose of the 1st Respondent's seeking a rehearing of the application for a stay of execution which was determined by the single Judge, is that the full Court may pronounce itself on the question as to whether or not section 108 (4) of the Electoral.Process Act No. 35 of 2016 is in conflict with the Constitution. In other words, the 1st Respondent essentially seeks this Court's interpre~ation of certain provisions of the Constitution, which include Article 72 (2) (h) and Article 73 (3) and (4), in view of the provisions of section 108 (4) of the Electoral Process Act as to the status of the seat of a candidate whose election is nullified by the High Court. The Rules of this Court clearly state the mode of commencement of matters to be brought before this Court. Order IV rule 2 (2) clearly states that a matter relating to the interpretation of the Constitution shall be commenced by _originating summons. It is settled law that where a statute provides for the procedure of commencing an action, a party has no option but to abide by that procedure. In N ewplast Industries v Commissioner of Lands and Attorney-General121 the Supreme Court held that the mode of commencement of any action is generally provided R23 for by the relevant statute. This was in line with its earlier decision to that effect in Chikuta v Chipata Rural Council.161 Further, in the case of Bank of Zambia v Aaron Chungu, Access Leasing Limited and Access Financial Services Limitedl71, the Supreme Court held that: "It is not correct that the mode of commencement of any action largely depends on the relief sought. The correct position is that the mode of commencement of any action is generally provided for by statute. (Emphasis added) It is further settled law that a court has no jurisdiction to entertain the claims of a party in an action which is wrongly commenced. We duly endorse the sound principles of the law set out in the cases we have cited. In the present case, in view of the provisions of Order N rule 2 (2) of the Rules, the proper course of action for the 1st Respondent to have taken in seeking the interpretation of the Constitution with regard to whether or not section 108 (4) of the Act is in conflict with the Constitution, was to bring an action by originating summons. In arriving at this position, we are not oblivious to the fact that arguments relating to the question whether or not section 108 (4) of the Act is in conflict with Article 73 (4) of the Constitution were advanced before the single Judge. The single Judge in his Ruling ably guided the parties when he said he had no power to interpret provisions of the Constitution and declined to do so under the guise of an interlocutory application. It was R24 therefore incumbent upon the 1st Respondent 1n seeking the interpretation of the relevant provisions of the Constitution in light of the provisions of section 108 (4) of the Act to take the single Judge's guidance and bring an appropriate action to the full Court. We note with interest that the 1st Respondent in her skeleton arguments in opposition to the application to stay execution of Judgment filed into Court on 8th December, 2016 ably articulated the position of the law as stated in the Newplast Industries case and subsequent decisions to the effect that a party is obligated to abide by the mode of commencement . prescribed in a statute in seeking relief before Court. Counsel for the 1st Respondent contended that the Appellant had violated the teaching in the Newplast Industries case and had attempted to seek a remedy which was not available to her in the form of a stay of execution of judgment of the High Court without following prescribed procedure. Counsel urged for that reason that the application should be dismissed as it was misconceived. We further note that in seeking relief from this Court after the delivery of the Ruling of the single Judge on the application for a stay, the 1st Respondent surprisingly transgressed the well laid down rule on the mode of commencement of actions before this Court and over looked the consequences of non-compliance. R25 .. ' ''• , This Court is bound by the Constitution and all the other laws which govern or regulate the exercise of its jurisdiction. Further, it is obliged to adjudicate in accordance with the law, including observance of compliance with procedural requirements. It is particularly important for this Court which is one of the two apex courts of the judicature of Zambia to enforce strict compliance with the Rules of this Court with regard to the mode of commencement as parties seek relief from the Court. In agreeing with the position taken by the single Judge, we too decline to be· drawn into determining a matter involving the interpretation of the Constitution under the guise of an application for the rehearing by the full bench of an application which was previously before a single Judge of this Court for a stay of the judgment of the High Court dated 24th November, 2016 pending appeal, which application is interlocutory in nature. We further decline to be drawn into rehearing the Appellant's application for stay of execution of the judgment of the High Court dated 24th November, 2016 which was already determined by the single Judge of this Court because this application before us is not an appeal arising from the determination of the single Judge. In view of the authorities cited, we hold that this application by the 1st Respondent is not properly before this Court as it was irregularly R26 ... brought by way of notice of motion contrary to the Rules. We therefore have no jurisdiction to determine it even if we were inclined to do so as observed by Doyle CJ, as he then was, in the Chikuta case. To borrow the words of Counsel for the 1st Respondent in their submissions, this application fails on account of its being fatally defective and is dismissed. Since there was no appeal against the decision of the single Judge on the Appellant's application for a stay of execution of the High Court Judgment dated 24th November, 2016, the Ruling of the single Judge dated 27th December, 2016 stands and is binding on the parties. We make no order as to costs. A.M. Sitali, CONSTITUTIONAL COURT JUDGE ~/\ ............... ~ .................. . ···············~ ··························· M.S. Mulenga, E. Mulembe, CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE R27