Hakainde Hichilema and Anor v Edgar Chagwa Lungu and Anor (2016/CC/0033) [2018] ZMCC 268 (29 June 2018)

Rl SELECTED RULING NO. 29 OF 2018 (1044) IN THE CONSTITUTIONAL COURT OF ZAMBIA AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) 2016/CC/0033 , .. · : .. ; . ' .... ' IN THE MATTER OF: .4f ' AND IN THE MATTER OF: ARTICLES 1, 101, 103, AND 105 OF THE ZAMBIA, CONSTITUTION OF THE ZAMBIA ACT, CONSTITUTION OF CHAPTER 1 VOLUME 1, OF THE LAWS OF ZAMBIA THE ALLEGED CONTRAVENTION OF ARTICLE 104 (3) OF THE CONSTITUTION OF ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA BETW~EN: • • • • HAKAINDE HICHILEMA GEOFFREY BWALYA MWAMBA AND EDGAR CHAGWA LUNGU ATTORNEY-GENERAL - 15 T PETITIONER 2No PETITIONER 1sr RESPONDENT ' 2ND RESPONDENT Before Chibomba, PC, Mulenga, Mulembe, Munalula, and Musaluke JJC. On 12th April, 2018 and on 29th June, 2018. For the Petitioners: For the 1st Respondent: Mr. J. Sangwa, S. C., and Ms. N. Alikipo and Mr. J. Chimakata of Simeza Sangwa and Associates. Mr. L. Linyama of Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners. R2 (1045) For the 2nd Respondent: Mr. L. Kalaluka, SC, Attorney-General, Mr. F. Mwale, Principal State Advocate, Ms. D. Mwewa, Senior State Advocate. RULING Chibomba, PC, delivered the Ruling of the Court. Cases referred to: 1. Zambia Revenue Authority v T and G Transport (2007) Z. R. 13 2. Chakaka Village Country House Limited, Lawrence Sikutwa, Chakaka Procurement Company Limited v African Banking Corporation Zambia Limited Selected Judgment No. 5 of 2018 3. Access Bank (Zambia) Ltd v Group Five/ZCON Business Park Joint Venture SCZ/8/52/2014 4. Bellamano v Ligure Lombarda Limited (1976) Z. R. 267 (S. C.) 5. Dean Namulya Mung'omba, Bwalya Kanyanta Ng'andu and Anti- •Corruption Commission v Peter Machungwa, Golden Mandandi and Attorney General (2003) Z. R. 17 • 6. Pule Elias Mwila and Others v Zambia State Insurance Corporation Limited SCZ Judgment No. 35 of 2015 Legislation referred to: ~ I 1. The Constitutional Court Rules, Statutory Instrument No. 37 of 2016. 2. The Constitutional Court Act No. 8 of 2016. 3. The Constitution of Zambia, Chapter 1 of the Laws of 'Zambia 4. The Supreme Court Act, Chapter 25 of the Laws of Zambia Other work referred to: 1. The Rules of the Supreme Court of England, 1999 Edition. This is the 2nd Respondent's Notice of Motion to Raise a Preliminary Issue. The Notice of Motion seeks to set aside the Petitioners' Summons R3 (1046) on Appeal for irregularities. The Notice of Motion to Raise a Preliminary Issue was filed pursuant to Order 1 Rule 1 of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016 (CCR) as read together with Order 33 Rule 7 of the Rules of the Supreme Court 1965, 1999 Edition, Volume 1 (RSC). The Notice of Motion is supported by an Affidavit in Support and Skeleton Arguments. At the hearing of the Notice of Motion, the learned Attorney General, Mr. Kalaluka, S. C., relied entirely on the said Affidavit in Support and Skeleton Arguments filed. Paragr?phs 4, 5, 6, 7 ar:,d 8 of the Affidayit in Support deJ?oses as follows:- "4. That on 21 st September, 2016, the Petitioners filed Summons on Appeal to the full court against the Ruling of a single Judge dated 20 th September, 2016. 5. That the aforesaid Summons was duly served on the 2nd · Respondent on 23rd September, 2016. 6. 7. 8. That the Petitioners filed the Record of Proceedings into Court on 6th June, 2017. That to date, the Petitioners have not filed into Court any Affidavit in Support of the Summons on Appeal or any Record of Appeal together with Heads of Argument. That therefore, it has been difficult for the 2nd Respondent to respond to the Summons on Appeal." In the Skeleton Arguments in support, the 2nd Respondent began by stating that on 21 st September, 2016 the Petitioners filed Summons R4 (1047) on Appeal to the full Court against the Ruling of a single Judge dated 20th September, 2016 which disjoined the Speaker of the National Assembly, as a Respondent in the case. That although the Summons was served on the 2nd Respondent on 23rd September, 2016 and the Record of Proceedings was filed into Court on 6th June, 2017 the Petitioners did not serve any other documents on the 2nd Respondent as fr regards the Summons on Appeal. Specifically, that the Petitioners did not file an affidavit in support of the Summons nor did they file the record of appeal and heads of argument and that this was contrary to the Rules of Court. As such, the Summons on Appeal is wrongly before this Court • • and should be set aside with costs. It • It was contended that although the Summons on Appeal was filed pursuant to Order 59 Rule 14 (12) of the RSC, the same was not t! . ) supported, by any affidavi.t or indeed he~ds of argument , which are supposed to be filed together with a record of appeal. That this made it impossible for the 2nd Respondent to file any opposition or response to the Summons on Appeal. Hence, the failure by the Petitioners to file the requisite documents is contrary to the rules of Court upon which the Summons on Appeal was filed. In support of this proposition, Order 59/14/5 and 6 of the RSC were cited. RS (1048) It was further contended that although the Petitioners lodged the Record of Proceedings on 6th June, 2017, this is not a record of appeal as envisaged by Order XI Rule 5 of the CCR and more so that the lodged Record of Proceedings was not filed together with the heads of arguments as guided by the above cited rule. It was the 2nd Respondent's position that in the unlikely event that this Court waives the strict requirement arising from the nomenclature, then the Petitioners were inordinately out of time in lodging the Record of Proceedings as the period prescribed by Order XI Rule 5 of the CCR is 30 days of filing the Summons on Appeal. That in the present case, • • • • • the Record of Proceedings was filed more than seven (7) months from the date of the decision of the single Judge appealed against. Further, that the Petitioners did not obtain leave of the Court to file the same out of time. Therefore, that since the Petitioners have circumvented the rules I I I t of this Court in the way the Summons on Appeal and Record of Proceedings were filed, the Summons is irregularly before this Court and as such, this Court has no jurisdiction to hear and determine it. In support of the above submissions, the case of Zambia Revenue Authority v T and G Transport1 was cited which according to the 2nd Respondent, illustrates the requirement for a litigant to comply R6 (1049) with the rules of court and the risks of non-compliance. The 2nd Respondent, thus, urged us to take a leaf from the decision of the Supreme Court in Chakaka Village Country House Limited, Lawrence Sikutwa, Chakaka Procurement Company Limited v African Banking Corporation Zambia Limited, 2 in which the Supreme Court dismissed the motions on ground that they were incompetent and ought not to have been entertained by the Court. The case of Access Bank (Zambia) Ltd v Group Five/ZCON Business Park Joint Venture, 3 was also cited in which the Supreme Court stated that: - • • • • "Matters should, as much as possible, be determined on their merits rather than be disposed on technical or procedural points. This, in our opinion , is what the ends of justice demands. Yet, justice also requires that this court, indeed all courts, must never provide succor to litigants and their counsel who exhibit scant respect for rules of procedure. Rules of procedure and timeliness serve to make the process of adjudication fair, just, certain and even - handed. Under the guise of doing justice through hearing matters on their merit, courts cannot aid in the bending or circumventing of thes'e rules and shifting goal posts, for while laxity in application of the rules may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules." In conclusion, it was the 2nd Respondent's submission that the above cited cases show that failure to observe court rules results in dismissal. Therefore, that their Motion should be granted and the Summons on Appeal be set aside with costs. R7 (1050) The position of the learned Counsel for the 1 st Respondent, Mr. Linyama was to leave it to the Court to decide. In opposing this Notice of Motion to Raise a Preliminary Issue, the learned Counsel for the Petitioners, Mr. Sangwa, S. C., also relied on the Skeleton Arguments filed which he augmented with oral submissions. In the Skeleton Arguments in opposition, Counsel begun by giving the historical background to the Notice of Motion to Raise a Preliminary Issue. He referred us to the 2nd Respondent's Summons for joinder of the Attorney General to the proceedings and for an Order for Misjoinder of the Speaker of the National Assembly which was filed pursuant to Order V Rules 3 and 4 of the CCR, the affidavit and skeleton arguments • • • • filed in support of that application and to the Petitioners' Skeleton Arguments in opposition filed on 1 s t September, 2017. He also referred us to the Ruling of I the single Judge of this Court delivered on 20th I I I September, 2017 which granted both the Order for joinder and misjoinder resulting in the removal of the Speaker of the National Assembly as a 2nd Respondent and replacing him with the Attorney General. He submitted that on 21 st September, 2017 the Petitioners filed Sumr:nons on Appeal against the said Ruling of the single Judge. R8 (1051) He stated that the Summons was filed pursuant to Order 59 Rule 14 (12) of the RSC. He pointed out that on 21 st February, 2018 the Attorney General, by a Notice to Raise a Preliminary Issue pursuant to Order 33 Rule 7 of the RSC, seeks to set aside the Petitioners' Summons on Appeal for irregularity on ground that the same was filed without a supporting affidavit and/or record of appeal and heads of argument. ~ However, that the Petitioners oppose this application on the following grounds:- (a) The application does not come within the ambit of Order 33 rule 7 of the RSC; and • • • (b) Lack of merit of the 2nd Respondent's application. • • As regards the first ground that the application does not come within the ambit of Order 33 Rule 7 of the RSC, Mr. Sangwa, S. C., , began by urging us to adopt the ~ords of the Supreme Court in th~ case of Bellamano v Ligure Lombarda Limited, 4 where Judge Gardner observed as follows:- "The application in this case was made by way of a summons applying for dismissal of the action and other relief. It is not indicated on the summons under what order and rule the application is made and I would point out in passing that it is always necessary, on the making of application, for the summons or notice of application to contain a reference to the order and rule number or other authority under which relief is sought. R9 (1052) It was submitted that the purpose of citing the order, rule number or other authority under which relief is sought is for the Court to determine whether it can grant the relief sought pursuant to the provisions of the order or rule referred to. And that it is also necessary to inform the other party to the proceedings the authority being relied upon so that he can adequately prepare the relevant response. That -~ where a court is asked to do or grant a relief or order pursuant to an order or rule where it has no authority to grant such a relief, its hands are tied. • It was poin(ed out that Order' 33 Rule 7 relied·upon by the Attorney General in bringing this Motion does not apply to this type of application and that the Rule has been misconstrued and read in isolation from the rest of the provisions of Order 33. To buttress this point, Mr. Sangwa, S. C., referred to Order 1 Rule 1 of the CCR. He submitted that this Rule points to the Rules of the Supreme Court of England for the practice and procedure that applies to this Court in this respect. He submitted that Order 33 of the RSC applies only to proceedings before the High Court as a court of first instance and not to the Court of Appeal which does not deal with trials. RlO (1053) It was State Counsel Sangwa's further contention that when Order 33 Rule 7 is read together with Order 33 Rule 3 of the RSC, it will be seen that Rule 7 does not have a general application . And that it applies to a situation where a question or issue that arises in a cause or matter has to be tried separately from the main cause or matter and where it appears that the decision will substantially dispose of the cause or ~ ' matter or renders its trial unnecessary. Therefore, that for Rule 7, to be operational, there must have been a decision on an issue or question, which was tried independent of the main cause. That in the current • case, no trial of any issue under Order 33 of .the RSC took !{lace. Therefore, that the Petitioners' contention is that the 2nd Respondent's application must fail because the authority relied upon does not support it. Mr. Sangwa contended further that the argument that the I Petitioners failed to file into Court the requisite affidavit and record of appeal together with heads of argument contrary to the Rules of this Court is a misapplication of Paragraph 59/14/5 of the RSC. According to him, it is evident that the 2nd Respondent has conveniently and selectively read the said paragraph. And that it is of import to note that Rll (1054) Paragraph 59/14/5 is not part of the RSC but an explanatory note to the rules which specifically covers applications that are made to the full Court of Appeal and addresses the type of documents which must be prepared and filed with the Court of Appeal in support of such an application. And that this does not relate to appeals from a decision of a single Judge of the Court of Appeal to the full Court as the explanatory note covers applications such as those under: (a) Order 59, rule 14(1), which deals with the applications to the Court of Appeal; (b) Order 59, rule 14(2), which deals with the leave to appeal; and • • • • • (c) Order 59, rule 14 (3), and (4) which deal with ex-parte applications. Therefore, that the 2nd Respondent has misapprehended the import of paragraph 59/14/5 of the RSC . It was State Counsel Sangwa's further submission that the same is I I I true in relation to paragraph 59/14/6 of the RSC, which he submitted, deals with the documents to be lodged with the Court in relation to "full court applications" to the Court of Appeal and not appeals to the Court of Appeal against a decision of a single Judge, which is the issue in the current case. Therefore, paragraphs 59/14/5 and 59/14/6 of the RSC are irrelevant to the issue before this Court as it is not an application to the R12 (1055) full Court but rather an appeal to the full Court against the decision of a single Judge of this Court. Mr. Sangwa, S. C., submitted that the appeal before this Court was made pursuant to Order 59 Rule 14 (12) of the RSC, whose explanatory note is provided under paragraph 59/14/41 of the RSC. It was submitted that an application under Order 59 rule 14 (12) of the RSC has to be made by summons, which the Petitioners did in the current case and it was lodged on 21 st September, 2016. Further, that the rule provides that the appeal is a fresh application, which means it has to be filed afresh. That as such, there is no need for grounds of appeal to ·be provided as • what is important is to lodge with the Court such documents as are necessary for the Court to decide the appeal. And that in the current case, this was done by the Petitioners as all the documents that were filed before the single Judge of this Court are before the full Court. ' I I Further, that there was no requirement for filing Bundles of documents as had been contended by the 2nd Respondent. It was further contended that Order XI Rule 5 of the CCR has been misapplied as it does not apply to this application. That this is so because the Rules of this Court do not provide the procedure to be followed by the full Court when hearing an appeal from a decision of a R13 (1056) single Judge of this Court. Hence, the Petitioners relied on Order 1 Rule 1 of the CCR which points to the Rules of the Supreme Court of England as regards the practice and procedure relating to appeals to the full Court against the decision of a single Judge as stipulated in Order 59 Rule 14 (12) of the RSC. It follows, it was argued, if it is accepted that the CCR do not provide for appeals against the decisions of a single ~ Judge to the full Court, then what should be followed is what is in substantial conformity with the procedure laid out in Order 59 Rule 14 (12) of the RSC. And hence the CCR have no application. In support of the above argument, the case of Dean Namulya • • • • Mung6mba, Bwalya Kanyanta Nga'ndu and Anti-Corruption Commission v Peter Machungwa, Golden Mandandi and Attorney General5 was cited in which, according to Counsel, the Supreme Court (}" took this approach., We were, accordingly, urged to adopt the sam,e reasoning in the current case on ground that the decision in the above stated case is sound at law. Counsel then proceeded to extensively quote from the above cited case. It was further argued that it is also important to note that Order XI of the CCR deals with appeals from the decisions of a tribunal or the High Court and not appeals against the decision of a single Judge of this R14 (1057) Court to the full Court. And therefore, all the authorities cited by the 2nd Respondent are irrelevant to the appeal before us. In conclusion, it was submitted that the 2nd Respondent's Notice of Motion lacks merit and should be dismissed with costs to the Petitioners. In augmenting the Petitioners' Skeleton Arguments, Mr. Sangwa, S. C., more or less repeated the arguments in the Petitioner's Skeleton tf! Arguments. We do not intend to repeat these except to the extent reflected below. Mr. Sangwa, S. C., emphasised that the 2nd Respondent's Notice of Motion to Raise a Preliminary Issue should be dismissed as it is • anchored on a misconception of the jurisdiction of this Court. He pointed • • • out that the jurisdiction of this Court is derived from Article 128 of the Constitution and that the suggestion that Order 59 of the RSC addresses jur:isdiction amounts to equating the RSC to th~ Constitution. lie submitted that Sections 9 and 31 of the Constitutional Court Act No. 8 of 2016 (CCA) make it clear that rules of court provide for practice and procedure and do not address jurisdictional issues. Further, that the rules of this Court are not exhaustive on the practice and procedure to be followed by this Court and hence, Order 1 Rule 2 of the CCR makes it clear and points out that where the Rules do RlS (1058) not make provision for any particular point of practice or procedure, what should be adopted is the practice observed in the Court of Appeal in England. Therefore, that the contention that this Court lacks jurisdiction ought to have been brought by way of a substantive application under Article 128 (1) (e) and (2) of the Constitution and not by way of an interlocutory application. He concluded by stating that the Summons on Appeal was properly before this Court as the requirements of Order 59 Rule 14 (12) of the RSC· were complied with and that this Court has jurisdiction to • entertain this appeal because rules of procedure do not go to jurisdiction. In reply, Mr Kalaluka, S. C., submitted that the jurisdiction of this Court is two-fold - substantive jurisdiction and jurisdiction as regards t • I I practice and procedure. That substantive jurisdiction is provided for by Article 128 of the Constitution and relates to the types of matters which this Court can hear. And that this Court's jurisdiction as regards practice and procedure is provided for under Section 9 of the CCA which makes it clear that the rules of court provide for this Court's jurisdiction as R16 (1059) regards practice and procedure. Therefore, that it cannot be argued that the Rules of this Court have nothing to do with jurisdiction. Further, that Order 1 Rule 2 of the CCR provides that where the rules do not provide for a particular point, then and only then can the practice and law in the Court of Appeal of England apply. And that this does not mean that the CCR should be ignored completely. He invited us to distinguish this case from the decision of the Supreme Court in the Dean Mung'omba5 case. Therefore, that Order 11 Rule 5 of the CCR is still applicable because reference to the RSC is only where a particular point of practice • and procedure is not covered under the CCR. • • • • In response to the Petitioners' argument that Order 33 Rule 7 of the RSC is not applicable on the ground that Order 59 Rule 14 (12) of the RSC 'is the Rule that is applicable, Mr. Kalaluka, S. C., submitted that this argument is misplaced and a misapprehension of the rules. That this is so because Order 1 Rule 1 of the CCR makes reference to substantial conformity with the RSC and that this means the entire RSC so long as there is a default in the CCR. He further submitted that the appeal before this Court was not an appeal in the strict sense. Rather, that it is a hybrid matter as it is an R17 (1060) appeal on the one hand and a rehearing on the other. And that making a fine distinction is not helpful. He concluded by submitting that the application made by the 2nd Respondent is competent as it highlights the flaws of the Petitioners' appeal which render it incompetent. His prayer was that the Summons on Appeal should be dismissed with costs. We have seriously considered this Notice of Motion to Raise a Preliminary Issue together with the Affidavit in Support and the arguments advanced in the respective Skeleton Arguments, oral submissions and the authorities cited by the learned Counsel for the respective parties. It is our firm view that the main question raised in this • • • • Notice of Motion to Raise a Preliminary Issue is whether the Summons on Appeal filed by the Petitioners against the decision of a single Judge of this Court is properly before this Court. I ' I We have noted that in supporting their position that the Summons on Appeal is improperly before us, the 2nd Respondent has advanced three main grounds. Firstly, that the Summons on Appeal was not filed together with an affidavit in support. Secondly, that no record of appeal was filed and that although a record of proceedings was filed, it was not filed together with the heads of argument in support and that this 1s contrary to the Rules of this Court. Thirdly, that the Record of R18 (1061) Proceedings was filed out of time and without leave of court. The details of the grounds have been summed up above. The summary of the Petitioners' response in opposition was that the Summons on Appeal is properly before this Court. The grounds given are that since this is a renewed application, the Petitioners were not required to file an affidavit in support, a record of appeal and heads ~ of argument contrary to what has been argued by the 2nd Respondent. There was therefore no breach of Order XI Rule 5 of the CCR as it does not apply to such appeals as the one in the current case. Further, that there can be no breach of paragraphs 59/14/5 and • • • • • 59/14/6 of the RSC as these are not per-se part of the Rules of Court and relate to documents that should be filed in support of applications to the full Court of Appeal as opposed to appeals to the full Court of Appeal against ,a decision of a single Judge. And that Order 33 Rule 7 of the RSC does not apply as it relates to the determination of an issue that arises from a main matter and which concludes the matter without trial of the main matter. We have considered the above arguments. We wish to state from the outset that both Counsel for the 2nd Respondent and for the Petitioners as can be deduced from their respective submissions agree and we too agree that the Rules of the Constitutional Court do not R19 (1062) provide for the procedure to be followed where a party is not satisfied with a decision of a single judge of the Court. Both parties were also agreed that the procedure to be followed in this respect is to be found in Order 1 Rules 1 and 2 of the CCR which respectively provide as follows:- "1(1) • (2) in these Rules, The jurisdiction vested in the Court shall, as regards the manner practice and procedure be exercised provided by the Act and the Criminal Procedure Code or any other written law, or by such rules, orders or directions of the Court as may be made under the Act, the Criminal Procedure Code or such written law, and in default thereof the Supreme Court Practice, 1999 (White Book) of England and the law and practice applicable in England in the Court of Appeal up to 31 st December, 1999 . in substantial conformity with Where the Act and these Rules do riot make provisiort for any particular point of practice or procedure, the practice and procedure of the Court shall be as nearly as may be in accordance with the law and practice for the time being observed in the Court of Appeal in England." The above quoted provision in the Constitutional Court Rules is not strange to Zambian law and procedure as a similar provision is contained in Section 8 of the Supreme Court Act, Chapter 25 of the Laws of Zambia. However, unlike the Constitutional Court, the rules of the Supreme Court contain provisions on the procedure to be followed where a party wishes to challenge a decision of a single Judge of that Court in Section 4 (b) of the Supreme Court Act, Cap 25 of the Laws of R20 (1063) Zambia and Order 48 Rule 4 of the Supreme Court Rules. These respectively provide as follows:- Section 4 (b) "A single Judge of the Court may exercise any power vested in the Court not involving the decision of an appeal or a final decision in the exercise of its original jurisdiction but- in civil matters any order, direction or decision made or given in (b) pursuance of the powers conferred by this section may be varied, discharged or reversed by the Court." Order 48 Rule 4 "Any person aggrieved by any decision of a single judge who desires to have such decision varied, discharged or reversed by the Court under paragraph (b) of section four of the Act, shall in like manner file before the hearing by the Court three extra copies of the proceedings, including copies of any affidavits filed by any other party prior to the single judge's decision, for the.use of the Court.". • • Section 9 of the Constitutional Court Act No. 8 of 2016 (CCA) provides that:- "9. The jurisdiction vested in the Court shall, as regards practice and pro'cedure, be exercised in the manner 'provided by this Act and the rules." As stated above, the Constitutional Court Rules do not contain a similar provision as the Supreme Court Rules but they clearly point to the White Book, 1999 Edition, and to the procedure and practice in the Court of Appeal in England. Therefore, the question that follows is which provision of the White Book applies to an appeal that emanates from a decision of a single judge of the Court of Appeal in England which by R21 (1064) extension applies to the Constitutional Court by virtue of Order 1 Rules 1 (1) and (2) of the CCR? The learned Counsel for the Petitioners drew our attention to Order 59 Rule 14 (12) which provides that:- "An appeal shall lie to the Court of Appeal from any determination by a single judge, not being the determination of an application for leave to appeal and shall be brought by way of fresh application made within 10 days of the determination appealed against. Provided that an appeal shall not lie to the Court of Appeal without the leave of that Court in respect of a determination of the registrar which has been reviewed by a single judge. " He also referred us to paragraph 59/14/41 which is the explanatory note of Order 59 Rule 14 (12). It clearly states that:- • "Appeal lie;; to the Full court from a determination made by a single Lord Justice (r.14 (12)), other· than a decision given in open courl by a single Lord Justice on an application for leave to appeal (see para. 59/14/37, above). Where an appeal lies to the Court of Appeal from the decision of a single Lord Justice, the appeal is as of right, except in the case of a decision made by a single Lord Justice hearing an appeal from the Registrar (ibid.) ..... An appeal to the Full Court against a decision of a single Lord Justice (where such appeal lies as of right) is by a fresh application made within 10 days of the single Lord justice's determination. The application must be made on summons on which a fee (currently GBP60) will be payable; (for a form see para. 59/14/46 below). The 10 day period runs from the date on which the single Lord Justice gave his decision and the application by way of appeal to the Full Court must be set down within that 10-day period (see commentary in para. 59/14/40) ..... " It is clear from the above provisions that an appeal against the decision of a single Judge of the Court of Appeal lies to the full Court of Appeal and that the appeal must be made by Summons and that this should be done within 10 days of the decision of the single Judge R22 (1065) appealed against. It is also clear that such an application is a fresh application which is renewed. Likewise, a party who is aggrieved by the decision of a single Judge of the Constitutional Court must have recourse to or employ Order 1 Rule 1 of the CCR as read together with Order 59 Rule 14 (12) of the RSC to challenge the decision. In the current case, the 2nd Respondent has argued that the ~ Summons on Appeal is improperly before us as it was not filed together with the requisite documents. And that although a Record of Proceedings was filed, the same was filed out of time and without leave of Court. According to the 2nd Respondent, the requisite documents that • • • • • ought to have been filed together with the Summons on Appeal -are; an affidavit in support, skeleton arguments or heads of argument, grounds of appeal, bundles of documents and the record of appeal. And that (:,.iJ · ' since this was not done, this ·court has no jurisdiction to entertain the Summons on Appeal. The Petitioners' position however, was that Order 59 Rule 14 (12) does not provide that such documents should be filed with the Summons on Appeal. The question that follows is whether there was breach of Order 59 Rule 14 (12) of the RSC by the Petitioners' failure to file the above stated documents? R23 (1066) To ably determine this question, it is imperative that all the relevant provisions of Order 59 Rule 14 must be considered so as to give meaning and effect to Rule 14 (12) instead of isolating it to sub-rule 12 only as was argued by the Petitioners. The starting point is the examination of Order 59 Rule 14 (1) and (1A) which respectively provide that:- ~ "(1) Unless otherwise directed, every application to the Court of Appeal, a single judge or the registrar which is not made ex parte must be made by summons and such summons must be served on the party or parties affected at least 2 clear days before the day on which it is heard or, in the case of an application which is made after the expiration of the time for appealing, at least 7 days before the day on which the summons is heard. (1A) the applicant shall In support of any application· (whether made t\x pa rte or inter • registrar such partes) documents as the Court of Appeal, a single judge or the registrar may direct, and rule 9 (3) and (4) shall apply, with any necessary modifications, to applications as they apply to appeals." lodge with the Paragraph 59/14/2 sub-paragraphs 1, 11 and 12 which is the explanatory note of Order 59 Rule 14 (1) and (1A) of the RSC which I gives meaning and import provides as follows :- "Following the amendments to 0.59 which came into force on October 1, 1982 the practice and procedure relating to applications to the Court of Appeal was radically changed. The following are the main features of the present system: 1. A good many applications are now heard either by a single Lord Justice or the Registrar of Civil Appeals; but some categories of application have to be dealt with by the full Court (for a list see sub-para. 12). 11. For the documents which must be lodged in connection with (Full (Single Judge) and 59/14/12 et seq. Court of Appeal applications see paras 59/14/5 et seq. Court), 59/14/9 et seq. (Registrar). R24 (1067) 12 .......... The following applications have to be dealt with by the Court of Appeal itself; an application to strike out a notice of appeal for fa ilure to set the appeal down (see para. 59/5/23), applications for leave to move for judicial review, renewal of ex parte application (0.59, r.14 (3) (»»text)), applications by way of appeal from a single Lord Justice, applications for renewal of leave to appeal refused on paper (or for rescission of leave granted on paper)."Underlining ours for emphasis It is clear from the above explanatory notes that Order 59 Rule 14 (1) of the RSC is of general application as it applies to applications to the full Court of Appeal, applications to a single Judge and applications to the Registrar. This position is confirmed by paragraph 59/14/2 sub paragraphs 1 and 12 which explains that appeals to the full Court of Appeal against the determination of a single Judge fall under the ambit of applications covered under Order 59 Rule 14 (1) of the RSC . • • • • • Order 59 Rule 14 (1A) of the RSC stipulates the documents that ought to be filed in support of such applications. Paragraph 59/14/2 sub paragraph 11 , which is the explanatpry note of Rule, 14 ( 1 A) providep that recourse should be had to paragraph 59/14/5 as regards the documents that ought to be lodged in applications to the full Court of Appeal against a decision of a single Judge. Paragraph 59/14/5 is couched in the following manner: - "On the setting down of a full court application the following documents are to be lodged with the Civil Appeals Registry in duplicate: (a) the summons or, where the application is ex parte the notice of ex parte application; (b) the order of the court below; and (c) the affidavit in support of the application. R25 (1068) When the correct documents have been lodged and the fee paid (see para. 59/14/3), the application will be entered in the computerised records of the Court and given a Court of Appeal reference (see para. 59/1/43, above); and an acknowledgment letter will be sent to the applicant's solicitor if in person). Full Court applications are assigned to the appropriate Lawyer Group (paras 59/1/37 et seq.) which will be responsible for monitoring the progress of the application until it is ready for listing." Underlining ours for emphasis (or the applicant, From the foregoing, it can be seen that the documents that ought to be filed in an appeal against a decision of a single judge of the Constitutional Court to the full Court are the summons, the order of the single Judge and the affidavit in support of the application. In the current case, there is no dispute that at the time the Petitioners filed their Summons on Appeal, an affidavit in support of the • Summons on Appeal and skeleton arguments or heads of argument • • • • were not filed. The 2nd Respondent has premised its Notice of Motion to Raise a ~ Preliminary Issue inter alia on the failure by the Petitioners to not only ' file the above documents but also their failure to file a record of appeal, grounds of appeal and bundle of documents. The 2nd Respondent has argued that the failure to file these documents was a breach of Order XI Rule 5 of the CCR. On the other hand, Counsel for the Petitioners has argued, firstly, that Order XI Rule 5 of the CCR does not apply as what is fl,..t.: . :··"f~.: .. . • . -~ .. applicable is Order 59 Rule 14 (12) of the RSC and secondly, that since .. : ... , .·:-•·· . this is a renewed application, there was no need for the Petitioners to file R26 (1069) those documents as these were already on record as they were filed before the single Judge of this Court. Thirdly, that once the RSC are applied, the CCR do not apply. Hence, Order XI Rule 5 does not apply. We have considered the above arguments. A cursory look at Order XI Rule 5 of the CCR clearly shows that this rule does not apply to appeals emanating from a decision of a single Judge to the full Court but from a lower court to the Constitutional Court. It follows that the argument by the Attorney General that there was a breach of Order XI Rule 5 of the CCR as a Record of Appeal, Grounds of Appeal and Bundle of Documents were not filed has no basis. • .. • • Having stated that Order XI Rule 5 of the CCR does not apply to the application before us, the question that follows is whether there was a breach of the Rules of Court as regards the filing of the Record of Proceedings which was filed 7 months after the filing of the Summons on Appeal. In this respect, the 2nd Respondent's argument was that the Record of Proceedings ought to have been filed within 30 days of the filing of the Summons on Appeal. Having found that Order XI Rule 5 of the CCR does not apply and having also found that the proper rule is Order 59 of the RSC as guided by Order 1 Rule 1 (1) and (2) of the CCR, Rule 14 (12) stipulates a period of 10 days from the date of the decision of the single judge being impugned for filing the Summons on R27 (1070) Appeal. In the current case, the record shows that although the Petitioners filed their Summons on Appeal within the stipulated time of 10 days, the Record of Proceedings was however filed more than seven months later. This was way after the expiration of the ten days period stipulated in Order 59 Rule 14 (12). We regard this breach to be serious as it goes to the root of the Petitioners' Summons on Appeal as the Summons on Appeal cannot be heard in its current form. As it is, the Summons on Appeal is incompetent as it is not complete. No effort was made by the Petitioners to cure this defect. Since the Record of Proceedings filed was irregularly filed after the period stipulated by the • • • • Rules of Court, the same is incompetent. We order that it be forthwith expunged from the record. We further find that the failure to file an affidavit in support of the ((t Summon? on Appeal was also contrary to Order 59 Rule 14 (1) and (1A) I I I of the RSC which points to paragraph 59/14/5. Our understanding of the affidavit referred to in the Rules of Court is not the one that was before the single Judge of the Court. Such an affidavit must, among other things, contain statements of fact relating to what transpired before the single judge and the decision or order the party wishes to have varied, reversed or set aside. It is to this affidavit that the record of proceedings and the ruling of the single judge being questioned including the Judge's ( I I I I 1 · I I • i. ii !I ij L I' tl R28 (1071) notes should be attached together with all other relevant documents. For example, Mr. Sangwa, in his submissions, gave a historical background to the Notice to Raise Preliminary Issue. These are, among others, the facts that should have been deposed to in the supporting affidavit. The attachments to the affidavit referred to in the Rule, which will support the renewed application will include the affidavit and skeleton • arguments/heads of argument that were filed before the single Judge of the Court. As regards the need for an appellant to file Skeleton Arguments or • • · Heads of Argument, we can only repeat here what the Supreme Court • • • • • stated in Pule Elias Mwila and Others v Zambia State Insurance Corporation Limited6 • This is that:- " ...... as much as we agree with Mr. Chimembe's position that the Court is not bound to consider Heads of Argument as they, like submissions, are, meant to assist the Court in arriving at a judgment as was held in the case of Kitwe City Council vs William Nguni, we must make it clear that in the case of an appeal in the Supreme Court, there is a slight difference in that the Supreme Court, as an appellate court, depends entirely on the grounds of appeal and the Heads of Argument to understand and appreciate the areas of conflict or dissatisfaction by the appellants over the decision of the lower court appealed against. The grounds of appeal will normally only point out that a party is dissatisfied either on grounds of law or fact or both. It will not highlight the actual areas of dissatisfaction as that is done in the Heads of Argument which guide and the respondents. Unlike a trial court which can determine a matter based only on the evidence before it, it would be an almost impossible task, if not absurd, to ask the Supreme Court to deliver a judgment on grounds of appeal alone. Doing so would also lead to injustice as the respondents would be denied the opportunity of knowing the areas of conflict or dissatisfaction over which the appellate court is being moved illustrate points of complaint to the Court and R29 (1072) to reverse or correct. They will also be prejudiced as they would not be able to ably respond to the issues raised or give their own positions on the issues in question . .... " It follows that Skeleton Arguments in cases like the one in casu play a prominent role in appeals be it those which stem from the decision of a single Judge or a court below. They normally contain a summary of the facts and the law and explain the grounds of dissatisfaction with the decision being challenged. Apart from pointing the appellate court to the areas of discontent, skeleton arguments also serve to alert the other party of the case that he/she will be meeting at the hearing of the appeal so that he/she prepares one's own position • before in advance. The skeleton arguments referred to here are certainly • not the ones that were before the single judge. Mr. Sangwa, S. C., has also argued that paragraphs 59/14/5 and 6 of the RSC do not apply to this matter as they relate to documents that o o I ought to be filed in support of applications to the full Court of Appeal and not to appeals to the full Court of Appeal against a decision of a single judge. Our brief response is that Order 59 Rule 14 ( 1) of the RSC and the explanatory notes under paragraph 59/14/2 sub-paragraphs 1 and 12 which we have quoted above clearly state that the term "applications" includes appeals to the full Court against decisions of a single judge of the Court of Appeal. Therefore, State Counsel Sangwa's argument that • • R30 (1073) this does not apply to appeals from decisions of a single Judge to the full Court of Appeal is not tenable. The explanatory notes to the Rules though not rules per se serve a very useful purpose as they explain and clarify the rules of court. There was also a further argument by Mr. Sangwa, S. C., that reliance by the Attorney General on Order XI Rule 5 of the CCR is misconceived in terms of the jurisdiction of this Court as it amounts to equating Order 59 of the RSC to Article 128 of the Constitution which clothes this Court with jurisdiction. The Attorney General's response to this argument was that Article 128 of the Constitution only provides for • • • the substantive jurisdiction of this Court as the Court's jurisdiction as regards practice and procedure is provided by Section 9 of the CCA and the CCR. Our brief response is that the proposition by Mr. Sangwa, S. C., is I I I I not tenable, firstly, because although Article 128 of the Constitution provides for the substantive jurisdiction of the Constitutional Court, the Constitution in Article 120 (3) (a) provides that the processes and procedures of the courts shall be prescribed. Secondly, Article 136 ( e) vests the power to make rules necessary for the efficient and effective administration of the Judiciary in the Chief Justice. Thirdly, both Sections • • R31 (1074) 9 and 31 (1) (a) of the CCA are instructive as regards the Rules of the Constitutional Court. They respectively provide as follows:- Section 9: "The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the rules." Section 31 (1) (a): "The Chief Justice may, by statutory instrument, make rules for regulating- (aJ the practice and procedure of the Court and with respect to appeals to, or reviews by, the Court;" The above quoted provisions clearly state that the jurisdiction of the Constitutional Court as regards practice and procedure is as • prescribed by the Constitutional Court Act and the Constitutional Court • • • Rules. State Counsel Sangwa has also forcefully argued that the 2nd Respondent's application must fail because it is anchored on a wrong ' ' ' authority, namely; Order 33 Rule 7 of the RSC . He argued that Rule 7 does not apply to this type of application but to proceedings before the High Court as a court of first instance and in instances where a matter arises and it is tried separately and renders the trial of the main matter unnecessary. A cursory reading of Order 33 Rule 7 of the RSC seems to imply that it does not apply to the Court of Appeal in England. However, this .. .. R32 (1075) should be distinguished from the jurisdiction of the Constitutional Court because unlike the Court of Appeal in England, the Constitutional Court has dual jurisdiction which empowers it to sit as an appellate court and as a court of first instance and conduct trials. Therefore as much as we agree that Rule 7 applies to instances where during proceedings in the trial court, an issue arises which is tried separately and whose decision ( . substantially disposes of the whole matter thereby rendering its trial unnecessary, this Rule applies to this Court where the Court is exercising its original jurisdiction or sitting as a trial court. We reiterate our position that in the current case, Order 33 Rule 7 was not the • appropriate rule under which the preliminary issue ought to have been • • • brought. Nevertheless, the record shows that the 2nd Respondent's Notice of Motion to Raise a Preliminary Issue was not only premised on Order 33 Rule 7 but also under Order I Rule 1 of the CCR which as I I ' j ) ' already alluded to above, points to Order 59 Rule 14 (12) of the RSC. Hence we decline the invitation to us to dismiss the 2nd Respondent's Notice of Motion to Raise a Preliminary Issue. By way of emphasis and for clarity, the proper procedure and practice that a party who is aggrieved by a decision of a single Judge of the Constitutional Court and wishes to challenge it in the full Court must . . ( .._ R33 (1076) follow the procedure set out in Order 59 of the RSC as guided by Order 1 Rule 1 (1) and (2) of the CCR. Having found that the Petitioners did commit the breaches outlined above, which we found to go to the root of their Summons on Appeal and having found that as a result of the said breaches, the Summons on Appeal is incompetent as it was irregularly filed , we dismiss it. Each party to bear own costs. • • ~ -~=i._~- ' ----~ H. Chibomba • President CONSTITUTIONAL COURT • - ) ' M. S. Mulenga Judge ..::. B r rkf,t" E. lv'lotembe· Judge CONSTITUTIONAL COURT CONSTITUTIONAL COURT if:(:___ M. M. Munalula Judge CONSTITUTIONAL COURT , ~v1 M. MtJsaluke . I Judge CONSTITUTION)AL COURT \