CHANSA V ATTORNEY GENERAL (201 9/CCZ/OO4) [2019] ZMCC 26 (22 October 2019)

Rl IN THE CONSTITUTIONAL COURT OF ZAMBIA 2019/CCZ/004 AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (Constitutional Jurisdiction) -----------1 ii [ 2. __:_7~j ": t t REPUBLIC OF ZAMt'\!A cONSTITUTIONAL C. OU;{T O,· V,MBI/\ ~ ~ GERVAS CHANSA BETWEEN AND ATTORNEY GENERAL RECi l'ST~Y 1 p O BOX 5 v v•__;7, LU~Al<A L---------- _ _,,._,....,.. ~ ! Coram: Mulembe, Mulonda and Munalula JJC On 10th October, 2019 and 22nd October, 2019 PETITIONER RESPONDENT For the Petitioner: Mr B. Phiri of Messrs Linus E Eyaa and Partners For the Respondent: Ms D. Mwewa , Acting Senior State Advocate in the Attorney General's Chambers. RULING Munalula, JC, delivered the Ruling of the Court Cases referred to: 1. Benjamin Mwelwa v Attorney General Selected judgment No. 9 of 2019 2. Sean Tembo v Attorney General 2018/CCZ 0007 3. Sydney Chisanga v Davies Chisopa and Two Others 2016/CC/A46 4. Chizya Silwamba v Lamba Simpito (2010) 1 Z. R. 175 5. China Copper Mines Limited v Tikumbe Mining Limited (Appeal No. 017 of 2017) 6. Himani Alloys Limited v Tata Steel Limited (2011 /3) Civil Court cases, 971 7. Zega Limited v Zambezi Airlines and Diamond General Insurance Limited SCZ Appeal No. 39/2014 8. R. K Markan v Rajiv Kumar Markan 2003 AIHC 632 (633) DELHI 9. Thorp v Holdsworth [1 876] 3 CH. D 637 1 O. Zambia Revenue Authority v High Tech Trading Company Limited (2001 ) Z. R. 11 . Zambezi District Council v Zolick Kazanda Chanyika Il l Appeal No. 149 Of R2 Legislation referred to: Constitutional Court Act No.8 of 2016 Constitutional Court Rules, S. I. No.37 of 2016 Other Works referred to: Rules of the Supreme Court, 1999 Edition (White Book) Osborn's Concise Law Dictionary Sixth Edition Black's Law Dictiona ry Eighth Edition This Ruling relates to Summons for Entry of Judgment on Admission issued by the Petitioner in this matter and brought under section 3(2 ) (1) and (2) of the Constitutional Court Act No.8 of 2016 (henceforth "the Act") and Order I rules (1) and (2) and Order IX rule (20) of the Constitutional Court Rules S. I. No. 37 of 2016 (henceforth "the Constitutional Court rules") read with Order 27 Rule 3 of the Rules of the Supreme Court, 1999 (the White Book). The Summons which was addressed to the Single Judge of this Court was referred to the full Court by the Single Judge. By way of brief background, this Summons arose in an ongoing Petition filed on 11 th February, 2019 by the Petitioner (formerly a magistrate at Mufumbwe Subordinate Court) against the Attorney General. In the Petition , the Petitioner is challenging his dismissal by the Judiciary of Zambia Management using section 23(b) of the R3 Disciplinary Code and Procedure for Handling Offences in the Public Service on the basis that he, as a judicial officer and not a publ ic officer, is not amenable to the said Code. ·Two days after filing the Petition, the Petitioner filed an application for interim relief in the form of an order of certiorari to quash the decision of the Judicial Service Commiss ion to dismiss him or alternatively for an order to stay the said decision . On 4th March, 2019 the Single judge of. this Court dismissed the application upon a finding that it was misconceived. The Attorney General then filed an Answer to the Petition together with the Verifying Affidavit on 13th March, 2019. Upon being served with the Respondent's Answer and Verifying Affidavit, the Petitioner issued the Summons before us claiming that the Respondent's pleadings constituted an admission of the Petitioner's case. There are two lines of argument advanced by the Petitioner. The first charges that the Respondent has made fundamental admissions which ought to result in a final judgment on admission even at th is stage in the proceedings. In advancing this line of argument, the Petitioner, in his skeleton arguments in support of the Summons , began by outli ning the Court's power to grant him judgment on admission as long as the admissions made by the Respondent are clear and fundamental. He then pointed out that there had been an adm ission by the Chief R4 Registrar Mr Charles Kafunda to the effect that the Petitioner was a judicial officer. To confirm his status as a judicial officer, the Petitioner cited the case of Benjamin Mwelwa v Attorney General 1 in which at page 38 of the judgment, this Court confirmed that a magistrate is a judicial officer. The Petitioner further pointed out that the Chief Registrar in paragraph 14 of the Respondent's Affidavit admits paragraphs 24 to 29 of the Petitioner's Affidavit in support of the Petition and as such admits that the Petitioner as a judicial officer is not amenable to the Disciplinary Code and Procedure for Handling Offences in the Public Service. That the admission is a fundamental one which goes to the root of the whole matter. As such the matter can be concluded and final judgment on admission granted . In support of this claim , he referred to Order 27 rule 3 of the White Book In his second line of argument, the Petitioner challenged the process of his removal from office and outlined what he believes to be the correct constitutional procedure to be followed in disciplining a judicial officer. We wish to say from the outset-that this line of argument, constitutes the substance of the Petition and we shall therefore make no further reference to it in this Ruling. RS The Respondent did not file an affidavit in opposition to the Summons. They initially filed Skeleton Arguments in Opposition to Arguments in Support of Summons for Entry of Final Judgment on Admissions, addressed to the Single Judge of this Court and opposing the filing of the Summons on two points of law. They began with section 3 (1) and (2) of the Act and Order I rule (1) and (2) as well as Order IX rule (20) of the Constitwtional Court Rules under which the Summons was raised . They referred the Court to sections 5 and 8 of the Act to show that the Single Judge of this Court has no jurisdiction to entertain Summons to enter judgment on admission. That under the wording of section 5 of the Act, the single judge is precluded from exercising powers involving the rendering of a final decision . That as such the application was irregular. The second point of law raised by the Respondent relates to the procedure applicable where a party alleges a procedural irregularity. The Respondent averred that they did not file an answer to the Summons as they did not want to be seen to have taken a fresh step" and thereby condoned the Petitioner's irregularity. They contended that they had acted promptly as required by Order 2 rule 1 of the White Book. They prayed that the Summons be dismissed for the said R6 irregularity and lack of jurisdiction on the part of the Single judge of th is Court. In his initial Skeleton Arguments in Reply to the Respondent's Skeleton Arguments in Opposition to the Summons for Entry of Final Judgment on Admissions , the Petitioner maintained that the single judge did have jurisdiction to hear the Summons because it was an interlocutory matter as provided for under section 3 of the Act. The Petitioner also argued that it was not his submission, that the Single Judge should enter the judgment on admission. Rather, he argued, the single Judge ought to refer the entry of judgment to a panel of three judges. He cited the case of Sean Tembo v Attorney General2 in support of the claim that all interlocutory matters are to be dealt with by a single judge of the Court who will then make appropriate orders to refer the matter to three judges of the Court. That no application ought to "jump" and find itself before a Court of three judges or the Full Court without passing through a single Judge. The Petitioner further averred that although judgment on admission was not provided for in the Constitutional Court Rules, by virtue of Order 1 of the said Rules, such lacunas are addressed by resort to the White Book. He cited the case of Sydney Chisanga v Davies Chisopa and Two Others3 as authority for the claim that it has been the R7 practice of the Court to make use of the White Book whenever the Court's own Rules prove inadequate. The petitioner further contended that Order 27 rule 3 of the White Book which provides for the entry of judgment upon admission of a fact or part of a case by one party without waiting for the determination of any other question between the parties supports the Summons. He called on this Court to adopt as good law the High Court case of Chizya Silwamba v Lamba Simpito4 in which the High Court set out the conditions to be satisfied for the entry of final judgment on admission. He opined that the Chizya4 judgment was in tandem with Order 18 rule 13 of the White Book which essentially states that any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party either expressly or by necessary implication. In short, a Defendant who fails to address an issue is deemed to admit it and once a fact is admitted no evidence of the same need be adduced at trial as the admission functions to narrow the issues in order to eliminate delay In concluding the Petitioner averred that he agreed with what he termed 'the express admission" made by the Respondent to the effect that, the Petitioner being a judicial officer is not amenable to the Disciplinary Code and Procedures for Handling Offences in the Public Service under which he was suspended and subsequently dismissed . R8 That in the circumstances this constituted a proper case for referral to three judges of the Court. The Petitioner therefore prayed that the Summons be referred to a panel of three judges for entry of judgment on admission . When the Summons came up at a compliance conference before the Single Judge, she did not consider it on the merits. She observed that she could not hear and determine it as a single judge of the Court has no jurisdiction to determine any matter that has an effect on the final judgment. She then ordered the Petitioner to file a Record of Proceedings in relation to the Summons so that an appropriate panel of the Court could hear and determine it. After the record of proceedings had been filed and the matter scheduled for hearing, the Respondent filed further arguments and list of authorities which were subsequently dismissed by this Court as they were not filed with the leave of the Court. Thereafter the Respondent on paper, applied for and was granted leave to file the further arguments and list of authorities. The Respondent, in the further Heads of Argument in Opposition to the Summons for judgment on admission, argued that the provisions of Order 27 rule 3 of the Wh ite Book ought to be further investigated under two fundamental principles. The first point to which our attention was drawn was the need for an admission to be clear and ' . R9 unequivocal. The cases of China Copper Mines Limited v Tikumbe Mining Limited5 and the Indian case of Himani Alloys Limited v Tata Steel Limited 6 were cited to emphasise that point. The second point was that the exercise of the said power by the court is discretionary as the relief sought is not a matter of right. That from all the allegations levelled against the Judiciary management in the main matter, it cannot be said that the admission is clear and unambiguous in order for a judgment to be entered on it. The Respondent invited this Court to examine the facts and circumstances and take into account the fact that judgment on admission denies the Respondent permanently of any other remedy or recourse. It was further submitted that from the contents of paragraph 14 of the Affidavit Verifying the Respondent's Answer, it cannot be said that the alleged admission is a conscious and deliberate act by the Respondent which shows its intention to be bound by it. The case of Zega Limited v Zambezi Airlines and Diamond General Insurance Limited7 was relied upon in that regard . They added that the contents of paragraph 14 cannot also be the basis on which the Respondent can be denied the valuable right to contest the serious claims that have been levelled against the Judiciary of this Republic and further that the alleged admission is not unconditional. The Respondent finally referred this RlO Court to the case of R. K Markan v Rajiv Kumar Markan8 where it was held inter alia that an admission in a written statement equally needed to be taken as a whole and not in part which factor had to be considered in the case in casu as the Petitioner had pleaded various issues. The Respondent contended that it would be in the interest of justice to proceed to trial so as to bring this matter to its final determination and conclusion . That doing so would . avoid the Petitioner suffering any prejudice as he will have an opportunity to present his case to the Court. The Petitioner filed a further List of Authorities and Heads of Argument in Reply to the Respondent's List of Authorities and Heads of Argument in Opposition. He invited this Court to consider whether on the totality of the submissions made by the Respondent there is a clear and unequivocal admission that would warrant the grant of final judgment on admission. He reiterated his argument that the Chief Registrar had never denied the admission and Thorp v Holdsworth 9 was cited in support of the claim that it was for the source of an admission to retract it. He argued that Ms Mwewa's claim that the admission was equivocal was in fact giving evidence from the Bar. That it was an afterthought and not tenable as held by the Supreme Court in Zambia Revenue Authority v High Tech Trading Company Limited. 10 The Petitioner then went to great lengths to reiterate his earlier claim R11 that the admission was in accordance with the Black's Law definition of unequivocal as unambiguous, dear and free from uncertainty. That the Chief Registrar traversed the Petition and denied or admitted its contents as he saw fit. The Petitioner distinguished the China Copper Mines5 and Himani Alloys6 cases from the case in casu referring us instead to the case of Zambezi District Council v Zolick Kazanda Chanyika 111 11 where the admissioD was found on a letter and deemed to be express and unequivocal. He maintained that the Chief Registrar made his clear and unequivocal admissions consciously and deliberately on oath and with the intention of being bound by them . That as such the Petitioner was entitled to judgment as prayed. Order 15 rule 16 of the White Book was cited to show that the Court has the power to grant the remedy sought. We have seriously considered the issues raised. The fundamental question as we see it, is whether there has been an admission by the Respondent warranting the exercise of the Court's discretion in favour of the Petitioner by granting judgment on admission as prayed. Before we consider the question, we take note that the initial submissions raised by the Respondent challenged the power of the Single Judge to deal with the Summons for Judgment on Admission . The chain of events has in fact done away with the allegations of R12 irregularity as the Summons was in fact transmitted to a panel of three judges of this Court without any undue consideration of it on the merits. As such we agree with the Single Judge that a single judge of this Court has no jurisdiction to deal with a matter that may result in the disposal of the entire case. The Summons is therefore properly before us. We now turn to the substantive application. We wish to begin by first defining the word "admission" as a legal term . Osborn's Concise Law Dictionary Sixth Edition, defines an admission as a statement, oral or written , or inferred from conduct, which is made by or on behalf of a party to a suit, and which if relevant and against his or her interest, is admissible in evidence. An admission may be formal (made on pleadings) or informal (made before or during proceedings). Black's Law Dictionary Eighth Ed ition also defines an admission as any statement or assertion made by a party to a case and offered against that party. It is an acknowledgment that facts are true . Black's Law Dictionary sets out specific forms of admission as follows: First there is admission by silence which is the failure of a party to speak after another party's assertion of fact that, if untrue, would naturally compel a person to deny the statement. Secondly, there is adoptive admission which is [a]n action by a party that indicates approval of a statement by another, and thereby acceptance that the statement is true. R13 Thirdly, there is implied or tacit admission which is [a]n admission reasonably inferable from a party's action or statement, or a party's failure to act or speak. Fourthly, there is judicial or solemn admission which is [a] formal waiver of proof that relieves an opposing party from having to prove the admitted fact and bars the party who made the admission from disputing it. And lastly, there is incidental admission which is [a]n admission made in $Orne other connection or involved in the admission of some other fact. These are the different senses of admission found in Order 27 rule 3 of the White Book which provides that: Where admissions of fact or part of a case are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such judgment or make such order, on the application as it thinks just. Note 27/3/2 states that whilst admissions may be express or implied , they must be clear. Note 27/3/4 further states that such admissions may be made expressly in a defen~e to a counterclaim or may be admissions by virtue of the rules such as where a defendant fails to traverse an allegation of fact in a statement of claim or there is a default of a defence or a defence is struck out and accordingly the R14 allegations of fact in the statement of claim are deemed to be admitted . Admissions serve the purpose of enabling a party to obtain judgment within less time and with less expense as a party need not prove the admitted facts. They may even eliminate the need for a trial. Consequently, an admission must be clear and unequivocal. However the fact that an admission has been made must be demonstrated to the Court's satisfaction. The sum of the alleged admission before us is as follows: First the Petitioner claims in the Affidavit in Support of the Summons that the Respondent admits that the Petitioner was a judicial officer. The basis for the claim is two-fold: Firstly, Paragraph 1 of the Petition reads: "Your Petitioner was a Judicial Officer working as a Magistrate at the Mufumbwe Subordinate Court. JI (Emphasis added). The Respondent's Answer reads: " The contents of Paragraph 1 and 2 are admitted. JI The Respondent's Verifying Affidavit reads: "The contents of paragraph 1 and 4 of the Petition are admitted. JI Secondly, the Petitioner in the Affidavit in -Support of Summons deposes that the Respondent admits that the Petitioner being a judicial officer is not amenable to the procedure which was employed to suspend and dismiss him. Paragraph 27 of the Affidavit in Support of RlS the Petition reads: "That in the letter dated 4th July, 2018 from the Chief Administrator purporting to place me on suspension pursuant to section 23(b) of the Disciplinary Code and Procedure for Handling Offences in the Public Service and yet I am not amenable to the said Code being a judicial officer." The basis for the alleged admission is Paragraph 14 of the Respondent's Verifying Affidavit which deposes as follows: "That the contents of paragraph 24 to 29 of the Affidavit verifying petition are admitted. " However the Respondent does say in Paragraph 17 of the Answer that: "The Respondent admits the contents of paragraph 22 to 29 of the Petition only to the extent that it is aware that the said letters in question were issued to the Petitioner. " (Emphasis added) The said Paragraph 17 is a response to paragraph 25 of the Petition which is a replica of paragraph 27 of the Affidavit in Support of the Petition and reads: " .. . in the letter dated 4th July, 2018 from the Chief Administrator purporting to place your Petitioner on suspension pursuant to section 23(b) of the Disciplinary Code and Procedure for Handling Offences in the Public Service and yet your Petitioner is not amenable to the said Code being a judicial officer". This means that on a holistic reading of the Answer and verifying affidavit, the actual admission is that the letter referred to in the R16 paragraph therein does indeed exist. That is all. It cannot be said to be an admission that the Petitioner's own interpretation of the law to the effect that he is not amenable to the process which was employed in suspending and dismissing him is also admitted. We are fortified in so finding by the fact that the Respondent goes further in refuting the Petitioner's claims. In response to paragraphs 32 to 44 of the Petition in which the Petitioner challenges the legality of the process of his removal and offers what he views as the only correct procedure, they say: "The Respondent denies the contents of paragraph 32 to 44 of the Petition and ... shall say that the suspension of the Petitioner was lawful and does not breach the Constitution or any other law as alleged or at all." (Emphasis· added) We also find that we cannot overlook the response to the Petitioner's prayer. Paragraph 45 of the Petition contains the detailed substantive reliefs sought by the Petitioner which for the sake of brevity, we have re-cast as follows : (a)An order for Certiorari that the decision to dismiss the Petitioner contrary to the procedure provided for -in Article 236 of the Constitution as amended in 2016 was done in bad faith and is therefore unreasonable, and illegal and the decision be stayed in the interim. R17 (b)A declaration and order that the use of section 21 (a) (v) of the Disciplinary Code and Procedure for Handling Offences in the Public Service to dismiss the Petitioner who is not a public officer is contrary to Articles 236 and 266 of the Constitution as amended and the Judicial Code of Conduct Act No. 13 of 1999 as amended in 2006, and is therefore illegal null and void ab initio. (c)A declaration and order that. the charge letter by the Principal Resident magistrate for North Western Province and the subsequent referral of the matter to the Chief Administrator is illegal null and unconstitutional ab initio and the charge letter should be expunged from the Petitioner's employment file. (d)A declaration and order that the decision of the Judicial Service Commission to dismiss the Petitioner without his being heard by the Judicial Complaints Commission and without the Commission so recommending , violated Articles 122(1 ), (2), (3), (4) and 236(2 ) of the Constitution as amended and the Judicial Code of Conduct as amended and the Petitioner must be re-instated to his position as a judicial officer. (e)A declaration and order that the Judiciary management can only charge the Petitioner after lodging a complaint with the Judicial Complaints Commission which after hearing both parties makes a R18 finding that the judicial officer has misconducted himself and advises accordingly. (f) A declaration and order that the Judiciary Management has no role to play in disciplinary proceedings concerning a judicial officer other than that of complainant to the Judicial Complaints Commission. (g)Damages for illegal harassment, torment and embarrassment caused by the actions of the Ju<;liciary Management. Costs, interest and any other relief the Court may deem fit. Paragraph 21 of the Answer says that "The Respondent shall deny the contents of paragraph 45 and shall say that the Petitioner is not entitled to any of the reliefs sought herein or at all." Having carefully examined the Respondent's Answer and the Verifying Affidavit, it is our considered view that the Respondent gave no clear and unambiguous admission and has in fact traversed the Petition and denied both the claim and the reliefs sought. They do not clearly and unambiguously admit the Petitioner's claims. We say so because the alleged admission can only be sustained by a selective reading of the said Answer and the Verifying Affidavit. While we agree with the Petitioner that his former status as a judicial officer is not denied, everything else is, one way or the other. When all the denials are taken into account it is evident that the alleged admission is far from clear or unequivocal. Furthermore, the reliefs R19 sought by the Petitioner cannot be justifiably granted without an interpretation of Article 236 and a proper consideration of all the issues in contention. We therefore agree with the Respondent that the issues raised in the Petition deserve full and adequate consideration by the Court so that justice can be done. That this is not a matter in which to render a speedy judgment at the expense of a consideration of the Petition on the merits. Having found that the Petitioner has failed to establish the alleged admission it follows that there is no material upon which we can exercise our discretion to render judgment on admission . The Summons for Judgment on Admission has no merit and is accordingly dismissed. As the application arose because of what we see as the Respondent's lackadaisical approach to preparing and filing their pleadings, we shall not award them the costs of this application . Each party shall bear their own costs . ........ ~ ..... . E. Mulembe Constitutional Court Judge ........... W.ffi.: .. P. Mulonda Constitutional Court Judge . ........ ~ ........... . Prof M M Munalula Constitutional Court Judge