The Attorney General v Rajan Mahthani (Appeal No. 4 of 2020) [2025] ZMSC 16 (24 July 2025)

IN THE SUP EME COURT OF ZAMBIA Appeal No. 4 of 2020 BETWEEN: AND ..._;U~CIARY 2 4 JUL 2025 APPELLANT RESPONDENT CORAM: Mu onda DCJ, Kabuka and Mutuna, JJS On 0 th of June 2025 and 24th July 2025 Ms. C. Mulenga and Mr. N. Mukelebai, Attorney General's Chambers Mr. J. Sangwa SC, Messrs Semeza Sangwa and Associates Mr. S. B. ChileDibo, Dr. A. Ngenda and Mr. N. Chibeleka of Messrs Russo Chambers Mr. N. Nkunika and Ms D. Katolo, Messrs Z S Legal Practitioners RULING Mutuna, JS, deliv red the Ruling of the Court. Cases referred to: 1. Finsbury Inve tments Limited v Antonio Ventriglia and Manuela R2 Ventrig ia 2018/CAZ/ 126 2 . Mweny v The People (1973) Z. R. 261 3 . Michae Mabenga v The Post Newspapers Lt d Appeal No. 69 of 2012 4 . Atlanti Bakery Limite.:! v ZESCO Limited SCZ 61 of 2018 5 . Milingo Lungu v Attorney General and Administrator Gen e r al (2022/ CZ/006); 6. C. J. Pet r Mwangi Gachuri v the Attorney General, Salaries and Remune ation Commission, Kenya . J" dges Welfare Association a n d The Judicial ervice Commission Constitutional Petition E040 of 2022, (2024) K AL 14791 (kin) 7 . Republi of South Africa and Others v Sout h African Rugby Football Union & Others (1999) ZACC 9 8. South A rican Human Rights Commission on behalf of South African ewish Board of Deputies v Bongani Masuku and Oth e rs CCT 14/ 9 9. Savenda Management Services Limited v Stanbic Bank Zambia Limited CZ judgment number 10 of 2018 Statute refer 1. Supreme Court Rules 19 and 58 (a) 2. The Con itution of Zambia, Article 18 3. Judicial ( ode of Conduct) Act No. 13 of 1999, sections 4 and 6 Works referre to: 1. Concise Ox ord English Dictionary 11th edition 2 . Black's La Dictionary by Bryan A. Garner, 7 th edition 3. Stone's Jus ices' Manual, 1973 edit 1on volume 269 Introductio 1. cent past, Judges in Zambia have been inun dated lications requesting them to recuse themselves from being i olved in the adjudication of some cases. These ns are premised or founded on allegations of bias, bias, incompetence, among others. 2 . The appl cations take the form of verbal motions launched at the Bar y counsel, and written motions filed before Court. 3. The attern which has evolved over the years is that these R3 or applications are preceded by and linked to unfav urable rulings handed down by the court against the litigan s moving such motions or making the applications in questi n. The motions are also normally launched by litigan s who have, in the course of the proceedings, procra tinated and appear to have no desire to see an end to 4. tion before us is for recusal. It is moved by the dent, one Rajan Mahtilani, pursuant to sections 4 and 6 of the Judicial Code of Conduct Act. It seeks the 4.1 t at, the Honourable Justices currently empanelled to h ar the appeal herein, namely, the Hon. Deputy Chief stice M. Musonda SC, Lady Justice J. K. Kabuka . . ' d Justice N. K. Mutuna, recuse and disqualify th mselves frbm further participation in this appeal; 4.2 th t arising fron1 4.1 , a differently constituted panel of ges be empanelled · to hear and determine the eal· ' 4.3 the ruling of this Honourable Court of 8 th April 5, on the Respondent's Notice of Preliminary R4 Objection to the appeal filed on 24th August 2020, be set aside and the application heard denovo; 4. 4 that such further or other order as this Honourable ourt may deem fit be granted; and, 4. 5 hat the costs of and occasioned by this application be osts in the appeal; 5. The a plication is supported by an affidavit sworn by the Resp ndent and skeleton arguments settled by counsel for the R spondent. It is anchored on the following grounds: 5.1 at the Justices identified in 4.1. above abandoned eir duty of judicial impartiality by improperly escending into the arena of the appeal, raising and d termining issues not pleaded or argued by the ties, and, thereby effectively upholding the appeal o grounds not advanced by the.,,Appellant; 5.2 t at the conduct of the Justices in question d monstrates manifest bias in favour of the Appellant; 5.3 t at the actions of the named Justices constitute a gr ve breach of the duty of impartiality imposed by icle 18 of the Constitution of the Republic of bia, the Judicial (Code of Conduct) Act No. 13 of 1999, and the common law; and, . . RS 5 .4 that justice requires that the appeal b e h eard denovo by a differently constituted panel that is free from bias r any reasonable apprehension of bias. 6 . The ppellant has filed arguments opposing the motion. Backgroun 7 . The f. cts leading up to this motion, as they are r elevant to its d termination, are that the appeal in this matter was uled for hearing on 1st September 2020. It arose out of a ch lenge mounted by the Respondent in the High Court again t the decision of the Director of Public Prosecution (DPP) to prosecute him in a criminal matter which had earlie been discontinued, following consultations between the D P and the Attorney General. Prior to the hearing, on 24th A gust 2020, the Respondent filed a Notice of Obj ection to the appeal pursuant to Rule 19 of the Supre m e Court Rules CAP 25 which was supported by skeleton arguments. Along with this notice, the Respondent also filed his argu ents opposing the appeal in which he addressed all four g ounds of the appeal. 8 . The gr unds upon which the objection was raised were as R6 s : 8 . 1 The grounds of appeal have no bearing on the decision of the High Court; and, 8 .2 The subject matter of the planned prosecution of the Respondent has already been adjudicated upon by the Court of Appeal in its judgment delivered on 31st January 2019, in appeal number 2018/CAZ/126 between, Finsbury Investments Limit~d v Antonio Ventriglia and Manuela Ventriglia 1 . 9. At th hearing scheduled for 1s t September 2020 we gave direc ions for the filing of the affidavit and arguments in ition and those in reply. This followed a request for an adjo nment by the Appell2.nt to enable it file documents ing the motion. We then adjourned the matter for a which we delivered on 8th April 2025, u pon ering the documents that had been placed before u s. 10. After he delivery of the ruling, the matter wa s s et down for heari g of the remainder of the appeal, given the fact that the etermination of the preliminary objection had tially dealt with the appeal. Prior to the hearing th a t en set for 6 th May 2025, the Respondent, on 2 5 th April 2025, filed another notice of preliminary objection to the R7 al pursuant to Rule 19 of the Supreme Court Rules, CAP 25. The grounds of the objection were that all the four grou ds of appeal advanced by the Appellant in the appeal ed Rule 58(2) of the Supreme Court Rules because they leged both error of law and fact and, although they that the Court below c .. red, they did not disclose the flaw and fact alleged to have been wrongly decided. spondent filed this objection notwithstanding that he had o posed and addressed all the grounds of appeal in his argum nts opposing the appeal referred to in paragraph 7 of this ruing. 11 . At the earing of the appeal, we directed the parties to focus their guments on the outstanding issue in the appeal which as, whether, a nolle prosequi entered pursuant to 1 ( 1) of the Criminal P!ocedu~e Code Act, CAP 88 mstances suggesting that the Director of Public Prosecu ion may have invoked Article 56(7) of the Constit acted on the directive of the Attorney General an have the same effect as autrofois acquit? We also indi ated that the objection by the Respondent would sed later. Counsel for both parties agreed to this approac and requested for time in which to file arguments RS spec· fically directed at the issue that had been identified by ourt. We accordingly adjourned the matter to 3rd June 12. Prior to the hearing stated in the preceding paragraph, the Resp ndent filed this motion. He did not file any arguments addre sing the outstanding issue in the appeal in ance with the directive of the Court. The Appellant other hand, not only opposed this motion, but also filed guments addressing the outstanding issue as by the Court. Roadmap to determination of the motion 13. The all gations made by the Respondent against us are very serious As such, they have attracted a lot of attention both within d outside the Judiciary. The record of proceedings is, after all, a public document open to ~,scrutiny by members of the ublic. We are, therefore, compelled to explain in w we will determine the motion. 14. We will roceed as follows: 14 .1 R stating the motion; 14.2 S ating the burden and standard of proof - threshold 14.3 mmary of the Respondent's evidence and the R9 arguments by the two parties; 14.4 Determination of whether the Respondent has proved his case; 14. 5 Summary of our holding; 14.6 Consequences of the allegations; and, 14. 7 Conclusion. The motion 15. Then ture of the motion has been set out in paragraphs 4 and 5 f this ruling. It is, however, still necessary for us to give a detailed explanation of the reliefs claimed and ground upon which they are sought. 16. The reli fs claimed are, firstly, that we disqualify ourselves from fu ther participation in this appeal. What this means terms is that we must, if the allegations made against s are true, step down from adJudicating further on al. Our stepping down will be premised on the fact e disqualified from hearing the appeal because facts have been placed before us which point to the fact t at we are biased and there are reasonable grounds to doubt ur independence and impartiality. 17. tl relief claimed is the empaneling of a differently R10 stituted panel of Judges to hear and determine the eal. This would inevitably flow from the first relief and ld entail the reconstitution of the members of the panel to reside over the appeal. The Respondent's motivation is that the impartiality of the reconstituted panel, from the members of our court, would not be 18. ird relief being sought is for setting aside of our ruling of 8t April 2025 and the rehearing of the preliminary objec ion from which the ruling arose. This entails the revoc tion of our ruling, handed down for and on behalf of urt, and the rehearing of the preliminary objection from hich the ruling emanated. The ultimate objective is to dee are as a nullity the final decision of this Court. 19. The th rd and fourth reliefs seek to have us render any other ~ ' order e may deem fit and that costs should be in the cause. These two reliefs are self-explanatory and we need not explai them further. 20. The gr unds or, from our perspective, the allegations upon which e reliefs are sought are as follows: 20.1 that we abandoned our duty of judicial impartiality by improperly descending into the arena of the R11 appeal; 20.2 that we raised and determined issues not pleaded or argued by the parties; and, 20.3 that we upheld the appeal on grounds which were not advanced by the Appellant. 21 . The legation at paragraph 20.1 projects an abandonment of ou judicial oath to be impartial and a breach of the provis ons of Article 118( 1) of the Constitution and 3 of the Judicial (Code of Conduct) Act. It also sugge s that we actively participated in the proceedings as oppose to discharging our proper role as umpires. 22. The gr und (allegation) at paragraph 20.2 suggests that we abando ed the record of appeal and introduced our own issues or determination, away from what the parties had actuall pleaded and argued. What this effectively means is that, we denied the parties a!i opportunity to have their case heard d determined on the basis of the issues they had d argued in court. 23 . ground (allegation) at paragraph 20.3 is an of the one at paragraph 20.2 . It is therefore, not necess for us to explain it beyond what we have said in ing paragraph. R12 The burde and standard of proof - the threshold issue. 24. It is elementary proposition of the law that he who asserts rove. In this case, the Respondent h as made various allega ions. He, therefore, bears the burden of proof and must o the following: 24 . 1 Adduce sufficient evidence to prove that we have breached section 4 of the Judicial (Code of Conduct) Act which enacts as follows: "A judicial officer shall perform the duties of that office without bias or prejudice and shall not, in the performance of adjudicative duties, by word or conduct, anifest bias, discrimination or prejudice, including but ot limited to bias or prejudice based upon race, tribe, ex, place of origin, marital status, political opinion, olour or cre~d ... ". y its formulation, section 4 obliges the Respondent adduce evidence pointing to actual bias on our ... art either through our conduct or the words we led during the proceedings. This evidence must s f ow bias, discrimination and prejudice on our part b sed upon, but not limited to race, tribe, sex, place of origin, marital status, political opinion, colour or er ed. In other words, there has to be a basis upon - R13 which the bias, discrimination or prejudice 1s founded. 24.2 The Respondent is also legally obliged to adduce evidence showing that there are circumstances which raise doubt as to our impartiality and independence. These circumstances must be those listed in sections 6{1) and 6(2)(a) to (f) of the Judicial (Code of Conduct) Act and they must be factual in nature, adduced by the Respondent in the affidavit in support of the motion. 24.3 n the case of the allegations under both sections 4 d 6 of the Judicial (Code of Conduct) Act, the espondent must lead evidence to show that our ctions or conduct have led to an apprehension on is part that we have breached Jhe provisions of the o sections. Evidence led b the Respondent and arguments by the parties 25. The relev t portions of the Respondent's evidence in the affidavit in support are at paragraphs 4, 6, 8 and 9 d they state as follows: 25.1 "(4).. I filed a notice of preliminary objection to the appe and arguments in support in which I sought to R14 have the appeal dismissed on the ground that it was abuse of the process of court. .. ". 25.2 '(6) The application was heard on 8th April 2025 and e Honourable Justices, namely the Deputy Chief stice M. Musonda, Madam Justice J. K. Kabuka and r. Justice N. K. Mutuna rendered a ruling in which ey disregarded the issues properly raised by me in notice of preliminary objection". informed by my advoca te, John Sangwa SC and ve no reason to doubt his counsel that: - (a) The Honorable Justices abandoned the neutrality required of judicial officers and improperly assumed the role of active participants in the proceedings. (b) The Justices hijacked my application, introduced ., is~ues not advanced by either party, deliberated upon those issues, and determined them without · urisdiction. (c) went beyond the preliminary bjection and adjudicated the substantive appeal 'thout being heard on the propriety of this ourse of action. R15 Specifically, the Justices: (i) Mischaracterised my notice of preliminary objection by asserting, in paragraph 60 of the ruling, that I sought dismissal of the appeal solely on the ground of res judicata. (ii) Alleged, in paragraph 64 of the ruling, that I had tacitly raised the doctrine of issue estoppel without any basis in the record. (iii) In paragraph 70 of the ruling, determined on their own initiative - that the main issue of the appeal was " .... whether, a nolle prosequi entered pursuant to section 81(1) in circumstances suggesting the DPP may have invoked Article 56(7) of the Constitution, and acted on the directive given by the Office ~, of the Attorney General can have the same effect of autrofois acquit, is an issue to be determined in the main appeal". This issue was neither pleaded nor argued by the parties. (iv) Whe:i the appeal came up for hearing on 6 th May 2025, the AJustices maintained that the \ I R16 appeal was confined to the issue raised in paragraph 70 of the ruling and was the only outstanding issue. (v) The Justices directed the parties to address them on the issue they had raised in paragraph 70 of the ruling. The conduct of the Justices amounts to manifest bias and constitutes a grave breach of the duty of impartiality that the law imposes. (f) Their actions have given rise to a reasonable apprehension that they l1ave aligned themselves with the Appellant's cause". 25.4 "(9) On the advice of my advocate, I respectfully submit tha the Justices are disqualified from further hearing oft is appeal and that justice deruands that the appeal be ear_d before a differently constituted panel". 26. Coming the arguments in support of the allegations, counsel £ r the Respondent has set out in great detail the provisions of the Constitution on a party's right to a fair hearing. T ey, in this regard, referred to Article 18(9) of the Constitut on which states as follows: "Any court or other adjudicating authority prescribed by R17 law for determination of the existence or extent of any civil ight or obligations shall be established by law and shall be "ndependent and impartial; and where proceeding for such determination are instituted by any person before such a ourt or other adjudicating authority, the case shall be iven a fair hearing within reasonable time". counsel, the foregoing article has two nts. The first relates to disposition of the Judges which i that they must be independent and impartial. The second elates to conduct of the judicial officers in the exercise of their authority, which is that they must accord parties fair hearing within a reasonable time. 27. Counsel contended further that the provisions of Article 18(9) ar reinforced by those in Article 118 which sets out the princ ples which govern the exercise of judicial authority. Here, co nsel submitted that the provision reminds Judges e not above the law and that judicial authority is ., derived f om the people and must be exercised in a just manner promote accountability. Counsel specifically referred t Article 118(2)(a) which provides that justice shall be done t all, without discrimination. 28. Advancing their arguments on the issue of the parties' right to a fair h aring and the court's duty in this regard, counsel R18 referre to the case of Mwenya v The People2 and quoted at length rom the holding by Silungwe J (as he then was) on the issue bias. They argued that the principles articulated by Silun e J, were cited with approval by this court in the case ael Mabenga v The Post Newspapers Ltd3 . 29. 1 concluded their arguments on this issue by citing t½~ fol owing passage from Stone's Justices' Manual, 1973 editio , volume 1, page 369: "A justice should refrain from taking part in any matter in hich he is individually interested, or where he is nearly r lated to either party, or where he had advised upon the atter unless the objection is expressly waived by the rties". 30. The ext limb of counsel's arguments focused on the interp etation of the provisions of the Judicial (Code of Cond ct) Act. The view taken by counsel was that the Judie al (Code of Conduct) Act was enacted to enforce the consti utional prov1s1ons discussed 1n the preceding parag aphs. The Judges' duties are, therefore, not only canst· utional obligations but also statutory. 31. Coun el set out the provisions of sections 4 and 6(2)(a) of the Judic"al (Code of Conduct) Act and the cases in which the provi ions have been discussed. They then explained the test R19 bias with particular references to the 32. unsel submitted on the prohibition against judicial . They argued that due to the need for fairness in an ial system of the courts, we have repeatedly affirmed ation is for the parties, not for the court. That Judges right to expand the boundaries of the litigation hat the parties have deployed before them. Counsel argued at the duties of Judges is to consider and decide e issues expressly raised by the parties to the They cannot frame their own issues and proceed o determine them. Reference was made to the decision n the case of Atlantic Bakery Limited v ZESCO Limited4 hich states as follows: "A co rt is not to decide on an issue which has not been . Put differently, a court should confine its decision ;,, ue~tions raised in the pleadings. It can thus not grant relief hich is not claimed. Ligations is for the parties; not rt. The co1trt has no business extending or expanding ndaries of litigation beyond the scope defined by i.e. parties in their pleadings. In other words, a court has no jurisdi tion to set up a different or new case for the parties". 33. Counsel w nt on to argue that the principle in the Atlantic Bakery4 ca e applies with equal force to interlocutory R20 They referred to two cases in support of their argu ent which we have not cited because counsel omitted to ind cate their citations. 34. After tting out the law, counsel then proceeded to address the all gations. They contended that we ignored the notice of ary objection because in paragraphs 5 to 22 of the e gave background details which related to the appeal the preliminary objection. Counsel argued that the ent objected to the hearing and determination of the appeal n the ground that his prosecution constituted an court process because (a) the grounds of appeal have g on the decision of the High Court sought to be assailed, and, (b) the subject matter of his planned prosecuti n had already been adjudicated upon by the Court of Appeal in its judgment delivered on 3J st January 2018 in appeal n mb~r 2018/CAZ/ 126 Finsbury Investments Limited Antonio Ventriglia and Manuela Ventriglia1 . . 35 C ounse 1 nt on to contend that we deliberately disregarded the issue placed before us in the notice of preliminary objection. They submitted that we: (a) abandoned the n c utr ali ty equired of a Bench and h~jacked the Respondent's applicatio ; (b) raised issues not advanced by either party, R21 ted upon them, and, (c) we proceeded to determine them ·thout jurisdiction. Further, our subsequent conduct earing of 6 th May 2025 led them to conclude that we have £ rmed a fixed view on the appeal and that we want the dent to be prosecuted. 36 . The p ticulars of the allegations were as follows: 36.1 e distorted the Respondent's notice of preliminary bjection by falsely asserting that it sought dismissal f the appeal solely 011 the ground of res judicata. either the Respondent nor the Appellant, in arguing he preliminary objection, raised the doctrine of res udicata. According to counsel, the issue was raised by s in arriving at a decision not inf armed by law and acts of the case, in an effort to justify our decision to phold the appeal and pave way fo,r the prosecution of he Respondent on the criminal charge. Counsel, herefore, attacked our determination of the reliminary objection based on the principles of res 'udicata at paragraphs 60, '61 and 62 and our onclusion at paragraph 63 of the ruling of the court. 36.2 e "conjured a new argument" alleging, without R22 y basis in the record of appeal, that the Respondent ta itly invoked the doctrine of issue estoppel and held such at paragraph 64 of the ruling. They argued that fo an issue to be determined by the Court it must be e pressly raised in the inotion moving the Court. It not be raised tacitly. Further, there was no such ue raised in the notice of preliminary objection nor the Respondent or Appellant raise it in their ments. Counsel concluded that our determination restated mischaracterized the Respondent's p eliminary objection and was aimed at justifying our c nclusion in paragraph 70 of the ruling of the court. 36.3 A paragraph 70 of the ruling of the court, we termined, on our own initiative, that the central the appeal is whether a nolle prosequi e tered . pursuant to section 81 ( 1) of the Criminal P ocedure Code Act, in circumstances suggesting 1 ocation of Article 56(7) of the Constitution and a di ective from the office of the Attorney General, could o erate as autrofois acquit. Counsel contended that t is was the clearest evidence of our bias. They c ntended that from the statements we made in R23 agraphs 68 to 70 of the ruling, it is reasonable to c nclude that we had alr~ady determined the appeal in f our of the Appellant. Neither the Respondent nor the pellant raised or discussed the powers of the D rector of Public Prosecution, nor did they refer to s ction 81 of the Criminal Procedure Code Act; and, 36.4 e entirely disregarded the proper limits of the p eliminary objection and unla\vfully adjudicated s bstantive issues in the appeal. Counsel contended at our condi.lct at the hearing of 6 th May 2025 and e statements we made indicated that we had p ejudged the appeal. They argued that since the R spondent's preliminary objection had been d smissed, the next logical step was for us to hear the a >peal. This, however, could not..,be the case bec;ause e Re:spondent · had . raised another preliminary o ~ection and we were, according to counsel, obliged to h ar this preliminary objection·· before the appeal. I. stead of proc~eding as aforestated, we, once again, 1 properly inserted ourselves into the proceedings and d reefed the Respondent to address the Court on the it sue we identified in paragraph 70 of the ruling. The R24 rovisions of section 25(1) of the Supreme Court Act, ursuant to which we acted, do not allow us to isregard the grounds of appeal and formulate our own · ssues for · determination. According to counsel, the hrust of the Appellant's grievance deployed before us · the appeal, is reflected in ground 3, and it relates to he finding by the High Court that a decision by the ttorney General made pursuant to Article 56(7) of the onstitution cannot be revisited by a subsequent ttorney General. The Appellant's grievance does not elate to the issue raised in paragraph 70 which we i entified as falling for determi11ation. 37. ponse by counsel for the Appellant was as follows : 37. 1 ecusal of a judicial officers is governed by sections 6 d 7 of the Judicial (Code of Conduct) Act; 37.2 he stcU1dard of proof required to sustain an pplication for recusal is high and the burden of proof 1 es with the one making the allegations. This is in line "th the decision of the Constitutional Court in the c se of Milingo Lungu v Attorney General and The dministrator General5 ; 37.3 I is not enough for the Respondent to merely make R25 t e allegations it has made. There is need for the espondent to produce credible evidence in support of he allegation; 37.4 is also not enough for an applicant to merely suspect r apprehend that the Court may be biased; 37.5 ere apprehension on the part of a litigant that ajudge ·11 be biased, including a strongly and honestly felt xiety, is not enough. The court must carefully crutinize the apprehension to determine whether it is easonable. See the case of Peter Mwangi Gachuri v General, Salaries and Remuneration ommission, Kenya Judges Welfare Association nd The Judicial Service Commission6 . 37.6 or an allegation of apprehension of bias to be ustained, it must be founded on Jhe correct facts. In ther words, if the factual foundation of bias is wanting en the apprehension is also wanting and the pplication for recusal will be refused. 37.7 he test is whether a reasonable, objective and i formed person would, on the facts presented, easonably apprehend that the Judge has not or will ot bring an impartial mind to bear on the adjudication R26 f the case. In addition, the reasonableness of the pprehension must be assessed in light of the Oath of ffice taken by Judges to administer justice without ear or favour. This is in accordance with the decision y the Constitutional Court of South Africa in the case f President of the Republic of South Africa and thers v South African Rugby Football Union and thers7 · and ' ' 37.8 here is a presumption of impartiality which has the effect that a judicial officer will not lightly be presumed to be biased. This presumption is not easily rebuttable according to the Milingo5 case which adopted the reasoning of the Constitutional Court of South Africa in the case of South African Human Rights Commission on behalf of South African Jewish ., Board of Deputies v Bongani Masuku and Others8 38. e hearing of the motion, counsel for the two parties entirely on the documents presented before us. Foll wing a query from the ·court, all counsel for the ondent confirmed that they had participated in settling the fidavit and arguments in support of the Respondent's mo R27 Determina ion of whether the Respondent has proved his case 39. otion is anchored on sections 4 and 6 of the ial (Code of Conduct) Act. The relevant portion of n 4 is at page R 12 of this ruling while section 6 states In p as follows: S ction 6: ) Not withstanding section seven (7) a judicial officer shall not adjudicate on or take part in any consideration or discussion of any proceedings in which the officer or officer's spouse has any personal, legal or pecuniary interest whether directly 01· indirectly. 2 A judicial officer shall not adjud!cate or take part in any consideration or discussion of any matter in which the officer's impartiality might reasonably be questioned on the ground that - (a) the officer has a personal bias or prejudice concerning a party or a party's legal practitioner or personal knowledge of the facts concerning he proceedings; (b) the officer served as a legal practitioner in the matter; (c) a legal practitioner with whom the officer previously .,, . practiced law or served is handling the matter; (d) the officer has been a material witness concerning the matter or a party to the proceedings; (e) the officer individually or as a trustee, or the officer's spouse, parent or child or any other member of the officer's family has a pecuniary interest in the subject matter or has any othe:r interest that could substantially affect the proceedings; or (f) a person related to the officer or the spouse of the • • R28 officer - (i) is a party to the proceedings or an officer, director or a trustee of a party; (ii) is acting as a legal practitioner in the proceedings; (iii) has any interest that could interfere with a fair trial or hearing; or, (iv) is to the officer's knowledge likely to be a material witness in the proceedings". 40. The two sections list the instances that disqualify a judicial officer fr m adjudicating upon a matter. In paragraph 24 of this ruli g, there is an explanation of the threshold which is that an pplicant is required to lead evidence which proves any one r any combination of the instances set out in these two sect ons. 41. Our tas is to determine whether the evidence laid before us by the espondent has proved any one or more of the set out in - these two sections warranting our disquali catio? froi:n adjudicating further upon the appeal, ich this motion has lJeen launched. 42. We begi by relating the facts set out in paragraph 25 of this ruling to section 6 of the Judicial (Code of Conduct) Act. To recap, that section disqualifies a Judge from adjudicating upon a atter where his impartiality might reasonably be d on account of the Judge's personal bias or R29 prejudic towards a party or counsel, or the Judges' hip with such counsel. This relationship relates to employment or partnership with such counsel. 43. The sec ·on stipulates other grounds as being the private associat on the Judge had wjth the matter or the Judge or his me bers of the family having a pecuniary or other interest ·n the matter. 44. The fact adduced by the Respondent which we have set out earlier d indeed the extensive arguments by his counsel did not ead or even suggest any evidence which points to conflict f interest on our part arising from the instances set out in ection 6. They suggest a dissatisfaction with the decisio of the court revealed in the ruling of 8 th April 2025 and a d scomfort with the procedure we adopted in dealing with th matters presented to us in the appeal as a whole. 45. ently, the conclusion reached at paragraph 9 of the ent's allegations that we are disqualified is flawed. In arriv' g at this conclusion we endorse the argument by counsel for the Appellant and the case she cited that where the fact al foundation of bias is wanting the application for 46. As for s ction 4 of the Judicial (Code of Conduct) Act, the R30 facts ad uced and arguments advanced by the Respondent are only relevant in so far as they allege bias, prejudice and discrimi The section requires an Applicant to prove 46.1 that in the performance of hls or her function the udge was biased or acted in a manner which wa s prejudicial to the applicant; 46.2 that in the performance of his or her functions, th e Judge, through the words spoken or the actions, manifested bias, discrimination or prejudice which should arise from the views held by the Judge in respect of the applicant's race, tribe, sex, place or origin, marital status, political opinion, colour or creed, among others. 47 . By defi ition and according to the compilers of English lexicon, the . Concise Oxford English Dictionary, 11th edition bias is defined as an "inclination or prejudice for or against one thing or person". The inclination must demons rate how one acts in favour of one party against another arising from one's prejudices. 48 . Black's Law Dictionary by Bryan A. Garner, 7 th edition takes t definition of bias further when defining the phrase i bias" as follows: R31 "Bias that a judge develops during a trial. Judicial bias is usu. ins fficient to justify disqualifying a judge from presiding ove a case. To justify disqualification or recusal, the judge's bias usu. must be personal or based on some ex tra judicial ition ties in well with the provisions of section 4 (1) dicial (Code of Conduct) Act which specifically disqualif es a Judge from adjudicating upon a matter where bias ma arise due to his or her personal beliefs in relation to e, sex, place of origin, marital status, political op1n1on, olour or creed, among others. 49. The posi ion we have stated in the preceding paragraph is not unique our Code of Conduct. Writing in a text entitled o Judicial Conduct": Inde!)endence, Impartiality Integrit , July 2023, Lord Burnett of Maldon (former Lord ;,.., Chief J stice England and Wales) and Sir Keith Lindblom, Senior P esident of Tribunals stated as follows at page 9 : icial office holders should strive to ensure that their uct, both in and out of court, maintains and enhances confidence of the public, the legal profession and liti ants, court staff and colleagues in their personal im artiality and that of the Judiciary. It llows that judicial office holders should, so far as is rea onable, avoid extra judicial activities that are likely to R32 to re frain from sitting because of a reas nable apprehension of bias or because of a conflict of inte est that wo·ald arise from the activity". The d warning in th e last paragraph of the quotation serves t ensure that Judges do not develop p ersonal inclinati n s or biases outside their judicial function s which affect th ir impartiality in the discharge of their official 50. At para raph 29 of this ruling we have cited a passage from Stones Justice Manual referred to us by counsel for the Respon ent. This was an attempt by counsel at reinfor cing the Re pondent's contention that we are biased. The quotati n does not in any way support the Respondent's content on because, like the J udicial (Code of Conduct) Act, St nes emphasizes that the ingredients in support of disqual fication are personal in nature.;, The manual, refers, to, ualification where a judge is ".. individually d" or " ... nearly related to either party .. . " or " ... e advised upon the matter ... ". All these are personal traits d are extra judicial in nature. officer if it does not have those person al R33 ingredie ts. 52. It is not enough for an Applicant merely to complain about the man er in which a Court has conducted the proceedings tions it has given in the process. Nor is it enough to comp ain about the demeanor of a Judge. We shudder to think ho often a Judge with an indignant disposition would to recuse himself on the belief that he hated an applic . This would throw the administration of justice in array because it would result in frequent and ary adjournments and erode the independence of Judges, ho, as human nature dictates, would be forced to adopt a riendlier, though unnatural disposition. 53 . The s e is true of the disqualification under section 6 which ises where a judicial officer's impartiality might ly be questioned. The instanc€s set out in sections 6(2)(a) to (f) which . must be proved are personal s, therefore, extra judicial traits. The rationale for what we have said in the last two preceding paragraphs is that th ends of justice demand that court proceedings should be allowed to proceed unhindered if the constitu ional provisions for equal justice and a speedy trial under A ticles 118 (2) (a) and (b) of the Constitution are • R34 to be a ieved. Hence the presumption of impartiality of a Judge hich counsel for the Appellant articulated in their 54. ve stated earlier in this ruling, the Respondent has not onl failed to prove the allegations by way of leading evidenc on our personal attributes or relationship to him or his mat er that disqualify us, but lamentably failed to prove his cas as a whole. This is compounded by the fact that the on which he anchors his allegations is wrong. In the affidavi evidence in support of the motion quoted at paragr ph 25.3 of this ruling, the Respondent says that he was infi rmed by his counsel, John Sangwa SC, and he has n to doubt his counsel, that we have breached both isions of the Judicial (Code of Conduct) Act and Consti ution. This is a belief or appr.ehension which was brough abo-µt, not from his dealings with the Court, but dvice from counsel. 55. for recusal are triggered by perceptions that parties ants have of the Court they are appearing before. It ed by their experience with the Court which gives them apprehension as to the independence, impartiality, e, discrimination o:;_ bias of the court. The • R35 appreh en ion is then what the court tests a gainst the threshol we have set out earlier t o determine if the test for r ecusal as been su rmounted and it must satisfy the stand ard set out by counsel for the Appellant at paragraphs 37 .3 t o 3 . 7 of this ruling. The fact, in and of itself, that th e Respond nt predicated his motion on advice from cou n sel and not is apprehension of our attitude defeats the motion in its enf ety. 56 . The hold ngs we have made in the proceeding paragraph$. effectivel reveal our decision on this motion which is that it lacks me it. The motion is a deliberate attack on this court and the ·ntegrity of the judidary aimed at derailing the proceedi gs and having us re-open the hearing of an appeal and set a ide the ruling of the court. 57. Decision of our court are final and binding on the parties. In a ruli g de~ivered on 24th November, 2020 in the case of Savenda Management Service s Limited v St anbic Bank imited9 , we set out the rare instances where t his court c re-open and rehear an appeal or a motion and the time limi set for such a situation. Motions of such a n atu re can not e launched, as the Respondent h as d one in this • R36 , by way of sections 4 and 6 of the Judicial (Code of Cond ct) Act seeking our recusal. Summary o our holding 58. The fo lowing is a summary of our holding: 58.1 An applicant moving a motion for recusal bears the burden of proving the allegations. 58. 2 The proof that is required is in the form of evidence supporting the ingredients for bias, discriminations, prejudice and lack of impartiality set out in sections 4 and 6 of the Judicial (Code of Conduct) Act. 58.3 Merely lifting provisions in sections 4 and 6 and repackaging them does not constitute evidence or the necessary factual matrix in which to ground the legal provisions in question. 58.4 The evidence should show an inclination of bias, prejudice, discrimination or lack of impartiality by a Judge of an extra judicial nature as perceived by the applicant. 58.5 The decisions of the Supreme Court are final and not subject to review or reopening. These decisions may only be reopened in very exceptional cases and a • R37 motion for recusal is not a vehicle by which these decisions can be reopened. 58.6 Applications for recusal only serve the purpose of disqualifying a Judge. 58.7 The Respondent has failed to adduce facts which prove the allegations he has made. Consequenc s of allegations 59. The d termination we have made in paragraphs 4 7 to 53 of this ru ing shows that there was no basis whatsoever for the dent to make the allegations he made against us. uently, counsel should not have led him on this futile exerc1 which was doomed to fail. · only to scandalise the court but also derail the proceedings before us as well as forum shopping as he sought a recons ituted. panel of this Court and a corresponding expect tion of a different favourable outcome. An attempt at sub erting the course and administration of justice at a cost to the tax payer. The end game being to delay the of the appeal. Such conduct will not be condoned by this or any other court and will be dealt with swiftly and • R38 steml as it amounts, primafacie, to contempt in the face of rt. 61. Prese t in court on the day of the hearing were a number of young and junior counsel, watching John Sangwa SC and his c lleagues pursue this hopeless application clearly ancho ed on a misapprehension of the law by counsel. We have a ked ourselves what example such conduct by senior rs of the Bar sets for these young and junior counsel. Hence he need for stern action by this Court. 62. The R spondent will be spared just this once because it is t time this or indeed any other court in Zambia has explai ed the ingredients that have to be proved in ce with sections 4 and 6 of the Judicial (Code of t) Act. We have assumed that the Respondent made gations in ignorance of the law :which though is not ce, ht~t excusable. The failure by counsel on both address us on the ingredients aforementioned is y to the fact that our assumption of the ent's ignorance is not misplaced. 63. ruling be a guide by which counsel will in future refer to in launching motions pursuant to sections 4 and 6 of the udicial (Code. of Conduct) Act. Let it also be a R39 counsel and litigants who are in the habit of ing baseless motions frff recusal that their actions shall ot go unpunished. Such punishment will extend to ning counsel to payment of costs on the ground that lacki in merit and we accordingly dismiss it with costs. sts will be taxed in default of agreement. ' \ M. MUSONDA '1 DEPUTY CHIEF JUSTICE J. K. KABUKA SUPREME COURT JUDGE TUNA RT JUDGE