Attorney General v Lewanika and Ors (SCZ Appeal 56 of 1993) [1993] ZMSC 93 (23 September 1993)

IK THE SUPREME COURT OF ZWIA SCZ Appeal No. 56 of 1993 HOLDEN AT LUSAKA (Civil Jurisdiction) B 6 T « U » : THE ATTORNEY GENERAL Appellant VS A. KASHAM3ATHA M3IKUSITA LEWANIKA 1st Respondent FABIAN KASONDE JOHN ^BANGA MULNILA 2nd Respondent 3rd Respondent CHZWVA CHILESHE KAPUEPUE 4th Respondent KATOHGO MULENGA HAIHE 5th Respondent Coren: D. C. J., Sakala and Chai la, JJS On 23rd September, 1993 ■ ' ' ’• • • ■ i U“ For the Attorney-General: Mr. A. C, KfnariwaU, Principal State Advocate For tne 1st Respondent: Mr. Sunday Nkonde of Central Chambers For the 2nd, 3rd and 5th Respondent: Hr. C. Hakansenke of Shamwana and Co. For the 4th Respondent: Mr. ft. N. Ngenda of Richard Kgenda & Associates <: > • •'.(¥v > ' * --------------------------------------------------—------ ---------— Bwaupe, D. C. J., delivered uudgaent of the Court JUDGMENT Cases referred to: (1) i^AMBA AND ^UZI VS AnORHEf GENERAL SCZ Judgment Ho. 10 ■ .-/• ■ ■ ' ■ ■ ' Of 1993. ' : This 1$ an appeal against that part of the decision of the High Court ordering that all By-elections and preparations for By­ elections in the Constituency numbers 023, 033, 091, 092, 101, 110, 117, 127, 134, 143 and 148 being the Kufulira, Chinsail, Lukashya, 2 * Malole, Lunte, Solwezi Central, Pemba, Bweengwa, Kalabo, Mangy and Senanga constituencies be stayed pending final determination of the five petitions now before Court and that no actions prejudicial to the outcome of five petitions should ba taken by any party. The simple facts which give rise to this appeal are theses- Scm time this year 11 Makers of Parliament all of whom stood on the ticket for Movement for the Multi-Party Democracy resigned from that Party and declared their intentions to form a Political Party to ba called national Party. Following their resigna­ tions from the Movement for Multi-Party Democracy the Speaker of the National Assembly declared those seats vacant. The Government then made preparations for elections to be conducted on October 12, 1993. Meantime, five Members of Par!lament petitioned to the High Court to hear and determine whether or not their seats were vacant. On the 14th of September, 1993, the applicant now the appellant applied to the High Court for the consolidation of the five petitions. Following that application by the applicant the court, inter alia, ruled that all elections and preparations for 3y elections in all eleven constituencies be stayed pending the final determination of the five petitions now before Court. The learned Counsel for the appellant, Mr. Kinariwala has .. : .■ J ' .7:, . argued three ground of appeal. The first ground was that the trial Judge erred in law in ordering all By Elections and preparations for Sy elections In all 11 constituencies to ba stayed pending the final determination of the five petitions when the Members of Parlia­ ment who had resigned from Movement for Multi-Party Democracy and whose seats ware declared vacant tn six Constituencies numbers 092, 110, 117, 127 143 and 146 had not petitioned to the High Court against the declaration of their seats having become vacant. He said the respondent did not oppose the application and that the court properly exercised its Jurisdiction in granting the order for stay of by elections and preparations of the elections in the said five Constituencies. He argued however, that there was no purpose behind counsel for the petitioners making an application for stay of By elections and preparations for by elections in the remaining six Constituencies as well because Members of Parliament who had resigned from Movement for Multi-Party Democracy and whose seats were declared 3/...vacm - 3 • . < ■ : • • vacant in the said six constituencies had not potitoned to the High Court against the declaration of their seats having become vacant and if the by elections were allowed to be held in the said six constituencies no prejudice was going to be caused to the Petitioners* He said that the Court Improperly exercised its jurisdiction In granting the order for stay for by elections and preparations for elections in the said six Constituencies* In doing so he argued the Court acted without jurisdiction or alternatively exceeded its jurisdiction. lo the second^ground Mr* Kinariwala argued that the Court ' ''■ V’ J”' ' ■ 1 ■ -'■-•I' ■);■ fi­ erred in law in ordering that no actions prejudicial to the outcome of the petition should be taken by any party because the said order was too general and too vague in scope and could not have the effect of binding persons who are not parties to the proceedings herein. ■ - ■ • ”• A i&jkhs ■ ■ - • ‘ / ' "f. • V *!., In the third grounded said that In the absence of any written application and evidence in support thereof the Judge erred in law tn granting the order referred to in ground 1. In their brief reply, Mr. Uganda addressed the court on behalf o the others on all the three grounds. He contended that the court below acted within its jurisdiction and did not exceed it for the following reasons: Firstly that the court was in order in making such order so as to affect other Members of Parliament who had not petitioned because according to him all! the' eleven Members of Parliament were directly affected by one executive action, that is to say the purported declaration by the Honourable Speaker that the seats In the eleven Constituencies were vacant* Hr* Agenda argued that all the eleven Members of Parliament in the Constituencies concerned suffered the declaration of the rights and privileges they enjoyed before the said declaration. He submitted that the six who had not petitioned should not be deprived of the benefit of the order merely because they did not coma to Court. Mr. Uganda pointed out that the case of MHAM3A AHO MBUZI VS ATTORNEY GEN£RAL(1) was distinguishable from the facts of the present case because in that case there were no identifiable parties. ’ .' ' ■ '1 / . ' 4/... Mr, Nkonde • . ■ ■ ' - v'-r? • '-. VSUr, < g ■ ' : - 4 - Mr. Mkonde advancing an alternative submission conceded that the order of the learned trial Judge. should only affect the five petitions now before the court but should not deny or deprive the petitioners* rights, privileges and immunities by any party until the determination of the five petitions now before court. we have carefully considered the arguments and submissions made on behalf of the appellants and the respondents. One thing that exhibits itself is that while five Members of Parliament petitioned the High Court to hear and determine whether or not their seats had become vacant by reason that they resigned from the Party on whose ticket they won their parliamentary seats the other six who were included in the stay order did not petition the High Court, It is also clear that the learned Advocates for the petitioners did not make written applications and adduce evidence in support of their applications. The six inembers of Parliament did not contend that although they were not party to the proceedings the outcome of the proceedings would be prejudicial to them and did not apply to court to make them parties to the proceedings and adduce evidence. We entirely agree with the appellant that the order in the first place should not have been extended to other six consti­ tuencies whose Members of Parliament had not petitioned. In the second place we agree that tbs Order was too general in scope and application in that it covered persons who ware not before court. ■■ ■ -- ' For the foregoing reasons this appeal is allowed* We squash that portion of the order in so far as it affects the six constituencies where petitions have not been filed. On costs each member of the Court will deliver his own opinion, Bweupe. D. CJ My opinion on costs is that the normal practice 1$ that the successful party should have the costs. I see no compelling reasons why there should be a departure from such nornal practice. I would order that the costs should follow the event. Sakala, JS. This is further ruling on costs. I agree with the judgment 5/....read by •d A, . . ■ (A' ' >V ' . •; -J- .*> ■ ■' ■' l. —— ..... . ... ' ........ ■■ - - • read by the Honourable Deputy Chief Justice except on the question of costs on which I respectively disagree with him. On the question of costs* I take note that this was an interloctory appeal In which the main action is still pending before the High Court for determination I also take note that this appeal could perhaps have been avoided if the State had proceeded under Order 39 of the High Court Rules by way of review. I also note that the respondents through Mr. J&onde for the 1st Respondent partially conceded that the order of stay continues in respect of the five petitions now before the High Court although this concession has come too late. Above all, this matter raises a constitutional Issue of national importance of Parliamentary representation* we should* therefore* not frighten genuine litigants from coming before this court on account of costs. Consequently* this* in my view* is a proper case where costs should be in the casse and I so order. Chaila, JS / . ■ : . ■■ ■ This is a further ruling an the question of costs. I have listened to the views expressed by my two learned brothers on the question of costs. The judgment delivered by the learned Deputy Chief Justice Is an agreed one and I fully agree and concur with whatever has been expressed there. On the question of costs* it is a trite law that a successful party gets Its costs. This practice however, has been departed from in some cases particularly where the State is involved in respect of Constitutional matters where the courts have been ordering that each party pays his own costs where the State has been successful. The State in this matter appealed to the Supreme Court on the ruling which affected people or parties who were not parties to the petitions. The Advocates for the petitioners or respondents fought vigorously to uphold the ruling of the learned trial judge which ruling has been found to be faulty. The respondents have argued that the Attorney- General or the State should have used the process under Order 39. The State gave reasons why they chose not to proceed under that Order. This court at the beginning of the appeal inquired from respondents* Advocates how an order covered in general terms could cover people other than their clients. The learned advocates have not advanced any cogent reasons why a general order was sought in the first place. I find, therefore, that they have not shown or given any reason why a 6/...a general “ 5 * • •! general rule should ba departed from. I find that this 1$ a case we should not deprive the State of its costs. I order* therefore, that the successful party in the matter be given costs, and I order, that the costs be given to the State. ? * ■ ' •' ‘I •, ' 'll oaocR The order of the court, therefore. Is that costs should follow the event, that is to say, the costs are awarded to the State against the respondent: • ■ ■ - .... ■ > .' ' ■■■ ... . 8, K. Sweupe DEPUTY CHIEF JUST1 E. U Sahala Sm&E WT JUDGE M. S. Chaila SUPREME COdftT JUDGE