Faustin Kabwe and Bimal Thaker v Ndola Trust School Limited and Attorney General (SCZ/8/11/2022) [2024] ZMSC 7 (8 May 2024)

I Rl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/8/ 11/2022 BETWEEN FAUSTIN KABWE BIMAL THAKER AND l)SLIC OF E)itL COURT or JUDICIAH Y 8 APPLICANT 0 APPLICANT NDOLA TRUST SCHOOL LIMITED 1 ST RESPONDENT ATTORNEY GENERAL 2ND RESPOND ENT CORAM: Malila, CJ, Hamaundu, Kaoma, Mutuna and Chisanga, JJS on 9 th January 2024 a nd 8 th May, 2024 For the Applicants: Mr. J. Sangwa, SC, Messrs Simeza Sangwa & Associates and Mr. K. Wishimanga, Messrs AMW & Company For the 1 st Respondent: Mr. C. K. Bwalya, Messrs D . H . Kemp & Company For the 2 nd Respondent: Mr. C. Mulonda, Principal S tate Advocate R2 SCZ/ 8 / 14/ 2022 BETWEEN OCCUPATIONAL HEALTH AND SAFETY INSTITUTION AND APPLICANT JAMES MATALIRO RESPONDENT For the Applicant: Mr. S. A. G. Twumasi, Messrs Kitwe Chambers For the Respondent: Mr. M. M. Mwachilenga, Messrs J am es & Doris Legal Practitioners CONSOLIDATED RULING Hamaundu, JS, delivered the Ruling of the court. Cases ref erred to: 1. Zambia Revenue Authority v Professional Insurance Corporation Zambia, Appeal No. 34 of 2017 2. Richard Nsofu Mandona v Total Aviation Export & Others, Appeal No. 82 of 2009 Legislation referred to: 1. Constitution of Zambia, Article 128 2. Supreme Court of Zambia Act, Cap 25 1.0 Introduction R3 1.1 The two matters are separate actions in which the respective applicants seek leave to appeal to this court from decisions of the Court of Appeal. The respective applications were heard before two different single judges of this court. 1.2 In both cases, however, the respective respondents raised a jurisdictional issue. In the first case, the issue came up during arguments opposing the grant of leave to appeal. In their arguments, counsel for the respondents contended that under the Constitution of Zambia it is only the Court of Appeal which has power to decide whether or not to grant, a prospective appellant, leave to appeal to the Supreme Court. It was further contended that, for this reason, all provisions in the Supreme Court of Zambia Act and the Court of Appeal Act, together with their respective rules, wh ich purpor t to confer jurisdiction on the Supreme Court to grant leave to appeal are inconsistent with the Constitution. That question having arisen, the learned single judge decided to reserve the application for the determination of this court. 1.3 In the second case, the issue arose as a preliminary R4 objection to the application for leave. In that case, the respondent sought to stay the applicant's application and refer to the Constitutional Court the issu e of this cou rt's jurisdiction to grant leave to appea l to itself. 1.4 On 4th September , 2023, the advocates for t h e applicants in the first case filed a motion seeking a n or der that the question that was reserved for the d etermination of the court be a s well referred , under Article 128(2) of the Constitution, to the Constitution al Court for determination. 2 .0 The Questio ns 2.1 The position is therefore this: A question h a s arisen as to whether or not this court h as jurisdiction to grant leave to appeal to itself against a decision of the Cou rt of Appeal. However, a second question has also a risen as to whether that question should be refer red to the Constitution al Court for determination, or b e dealt with by th is court. For obvious reasons , we decided to d eal with the second question first . 3.0 Reference to th e Constitutional Court RS 3. 1 The arguments 1 . l . At the hearing, State Counsel Mr. Sangwa, representing th e applicants, submitted that, in his view the ma1·n , or first, question should be referred to the Constitutional Court for two reasons: first, because Article 128(2 ) of the Consti tution stipula tes that where a question relating to the Constitu tion a rises in a court, the per son p residing in that cour t shall refer the question to the Constitutional Court. Secondly, because the respondents who raised the question would like the court to declare section 24(b) of the Supreme Court of Zambia Act as being in violation of the Constitution. 3.1.2 Expanding his argument, Mr. Sangwa submitted that, in as much as courts are clothed with power to determin e their jurisdiction, the uniqueness in this particular case is that the jurisdiction of the Supreme Court is d er ived from the Constitution and not from an Act of Parliament. He said that the ques tion which h a s been raised R6 necessitates the interpretation of th e Constitution, which function is reserved for the Constitutiona l Court. 3 .1.3 State Cou nsel went on to argue th at, while th is court did decide an issue of jurisdiction in the case of Zatnbia Revenue Authority v Professional Insurance 111 , there is a difference with the issu e before us becau se the jurisdiction that was contested in that case was derived from an Act of Parliament, while the jurisdiction in issue in this case is provided in the Constitution. 3 .1.4 Mr. Sangwa, however, submitted that if this court were to decide to determine the main question itself, h e would n ot be averse to that position. 3. 1.5 Mr. Bwalya for the 1 st respondent, who r aised the question in the first case, supported the a pplicants' motion that the question be referred to the Con stitution al Court for determina tion. He submitted th a t, while h e agreed tha t every court h a s jurisdiction to pronounce upon its jurisdiction, the question in the insta nt case was an exception becau se in determining this cou rt's jurisdiction the interpretation of the Constitution will R7 certainly be involved; and, consequently, the provisions of Article 12 8(2 ) of the Constitution will become applicable . He submitted that s ub-art icle (2) of Article 2 8 places a duty on each and every cou r t, wh en ever an issue relating to the Cons titution arises, to refer the specific question to the Cons titution a l Court; even withou t a ny application. Counsel s aid that, in this particular case, the part of the Constitution that is to be interpreted is Article 131(2) in order to determine whether, according to sub-article (2) ther eof, th e r efusal by the Court of Appeal to grant leave to app eal to the Supreme Court is final. 3 .1.6 Regarding the provisions of Article 125(2)(b) of the Constitution and Section 24 of the Supreme Court of Zambia Act, Mr. Bwa lya submitted th at, at firs t gla n ce, it appears tha t Section 24 of the Supreme Court of Zambia Act can be said to b e on e of the other laws by which under Article 125(2)(b) grants ju risdiction to the Supreme Court. He a rgued however ' ' tha t the 1 st respondent's conten tion is tha t sec tion 24 itself is in R8 . conflict With th C e onstitution and cannot therefor b e 0ther laws referred to in artic le 125(2 )(b) · h e e one th of the need for the question to be referred , ence to the Constitutional Court. When probed as to wh y the st respondent did not m ake a n a pplication directly to the Constitutional Cou rt to strike down the p ortion of section 24 of the Supreme Court of Zambia Act wh ich offends the Constitution, Mr. Bwalya replied that , because the qu es tion has arisen in these proceedings , the efficacy of Article 128 (2) is such that the question can then be referred to the Constitutional Court for deter m in a tion without the parties filing an originating process , su ch as a petition, in that court. 3. 1. 7 When ref erred to the case of Richard Mandona v Total Aviationl2l where this court said that it is not every time the Constitution is mentioned that a court shall be obliged to r efer a question to the Cons titutional Court, Mr. Bwalya argued that that case can b e dis tin guished from this one in tha t in this case the Constitution is not b eing men tioned casua lly, but instead there is a R9 deliberate request for the court to interpret Article 131(2); and this , therefore, brings the issu e outside th e realms of the Mandona case. 3 . 1.8 Mr. Mulonda, learned counsel for the State in the first case, opposed the m otion to r efer the question to the Constitutiona l Court. For that position, counsel relied entirely on this court's decision in the Mandona case and argued that the question posed is one of j urisdiction, wh ich this court can determine. 3 . 1.9 Mr. Mwachilenga, counsel for the respondent who raised the question in the second case, submitted before u s that the question ought to be determined by the Constitutional Court because his client is raising an issue regarding the constitutionality of provisions in the Supreme Court of Zambia Act and some rules thereof. He argued that the result of answering that question might be the nullification of the said provisions, which is a power which this court does not have. 3 . 1. 10 When asked as to wha t was ther e to interpret in Article 131(2), Mr Mwachilenga replied tha t it is th e question R10 whether, in the wording of Article 131(2) there is power in the Supreme Court to grant leave for someone to appeal to it; and, if on the proper interpretation of Article 131(2), such power does not exist, whether a subsidiary legislation can grant s u ch power to th is court. 3 . 1. 11 Mr Twumasi, learn ed counsel for the applicant 1n the second cas e submitted that, in his view, the issues raised are matters of procedure and not of any substance requ iring the interpretation of the Constitution ; and h ence, according to him, the issues fall squarely in the category of those matters which, according to wha t we s aid in the Mandona case, do not warrant reference to the Constitutional Court. 4 .0 Our Decision 4 . 1 The proponents of the referral to the Constitutional Court support that motion on the ground that, in answerin g the question whether this Court has jurisdiction to en tertain a pplications for leave to appeal after the Court of Appeal h as rejected them , the interpretation of Article 131(2) of th e Constitu tion will be involved ; a nd tha t , in so doing, the constitutiona lity of Section 24 of the Supreme Court of R11 Zambia Act, and indeed any other statutory provisi· ons that appear to grant such jurisdiction, will b e called into question. 4.2 We have on numerous occasions stated that the interpretation of constitutional provisions is in the preserve of th e Constitution a l Cou r t in accordance with the powers vested in it by article 128 of th e Constitution . We will allude to this later. However, in the determination of any dispute before it, a court is empowered to d etermine its jurisdiction and powers, by reference to its constituting legislation whether it is an Act of Pa rlia m ent or the Constitution itself. The courts have enjoyed these powers for a long time now before and after the Constitution as amended in 2016. 4.3 This m atter, while it involves the interpreta tion of article 131 of the Constitution, centres on the determination of our jurisdiction and power in terms of leave to appeal to our court pursuant to th a t article . Therefore, in our determina tion a nd considera tion of article 131 we are not en gaging in a subs tantive interpretation of a provision of R12 the Cons tit f u ton as anticipated by article 128 but ' We a.re lllcrely a scerta ining whether or n ot article 131 ernpow ers us to cons ider a pplications for leave to appeal to this court. 4 .4 The for egoing is in line with what we said in the Mandona case a s follows : "Where, however, a matter arises whose substance is primarily interpretation of a provision of t he Constitution, this court would be obliged t o refer such matter to the Constitutional Court in terms of Article 28(1) to which we have alluded. This does not in any case mean that every time the Constitution is mentioned in arguments made before this court, we shall close our records of appeal and rise until the Constitutional Court determines any such arguments. Making observations on obvious constitutional provisions as we determine disputes of a non-constitutional nature is not, in our view necessarily averse to the letter and spirit of the Constitution nor would it encroach or usurp the jurisdiction of the Constitutional Court". 4 .5 Our intention 1n th e foregoing extract of the Mandona judgment was to m ak e it clear that we would n ot be usurping the powers of th e Constitu tional Court where, in the course of executin g our adjudicative functions, we make ob servations on constitutional provisions in a matter which is not con stitutional in nature. 4·6 To explain our p osition fur ther , R13 we are compelled to r eproduce article 128, wh1·ch sets th . . e Jurisdiction of the Constitution al Cou rt a nd thus defines a constitut· 1ona1 matter. The article states in part as follows : "128 (1) Subject to Article 28, the Consti tutional Court has original and final jurisdiction to h ear- (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to a violation or contravention of this Constitution' (c) a matter relating to the President, Vice-President or an election of a President; (d) Appeals relating to election of Members of Parliament and Councillors; and (eJ Whether or not a matter falls within the jurisdiction of the Constitutional Court" '4. 7 While we cannot explain the effect of article 128(1), as we would be exceeding our jurisdiction, we can say with certainty that in determining our jurisdiction ba sed on article 131 we will not be doing any of the a cts set out in paragr aphs (a) to (e) of article 128(1). Our task is solely limited to d e termining our jurisdiction, a nd n ot the effect of article 131 . We are in no way barr ed by the R14 Constituti on as amended, or any law for that matte . rin doing so. 5.0 Conclusion 5 .1 In answer to the question posed in th is motion, we are of the firm view tha t the question of jurisdiction in ma tters of leave to appeal can not be referred to the Constitutional Court. We shall deal with it for the reasons s tated earlier. Consequently, the motion fails and we dismiss it. We sh all pronounce the issue of costs in the main applica tion. -= a CHIEF JUSTICE E. M. Ha rtlaundu SUPREME COURT JUDGE --==R~ 1------~ "' R. M. C. Kaoma JUDGE c:,,- F. M. Chisan ga SUPREME COURT JUDGE