Buluma v Electoral Commission and Another (Miscellaneous Civil Appeal 22 of 2014) [2014] MWSC 4 (13 May 2014)

Cril Croce duc. — Fee prweslop [ leo Wi ie [x Arr &Y/— re met { + ae MALAWI JUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL A ed Jel han PRINCIPAL REGISTRY 4 te \ Ale oe MISC CIVIL APPEAL NO, 22 OF 2014 (Being civil Cause No, 48 of 2014) BETWEEN: HELUEN BUULY WA isa sccerinnsesesresinanisssenaiiieneniivieiawouarreaiemmacnies APPELLANT -and— ELECTORAL COMMISSION... veuee secacaureseesensaacrsseeeeeasassesseeessetassseseesrs RESPONDENT VERA FARAMEGA. CHILEWANI... sea sanaseibigasedjaeesintesevacce INTERESTED‘ PARTY BEFORE: HONOURABLE DR. JANE M. ANSAH, SC, JA Kandeya of Counsel for the Appellant C Gondwe of Counsel for Interested Party Chalamanda of Counsel for the Respondent Mrs. Chintande, Recording Officer RULING This is a summons to vacate a stay order granted by Honourable Kapanda JA. By virtue of section 7 of the Supreme Court of Appeal Act (Cap. 3:01) the appeal has come to me a single judge of the Supreme Court. It is pertinent that the facts of the case be outlined in detail. On 26" December 2013, the Plaintiff now Appellant Ms Hellen Buluma a member of the Democratic Progressive Party (DPP) contested in the party’s primary elections 2 aa a as a candidate of the Nsanje South West Constituent ge geing™he only candidate that turned up, she was declared a winner. "Howeveft-the DPP decided to have a re-run of the primary elections. She disagreed with the plans to have a re-run, she therefore commenced in the Principle Registry Blantyre, a civil action against the Registered Trustees of DPP challenging the decision to re-run. On 26" December she obtained an ex-parte injunction against the Registered Trustees of DPP restraining them against a re-run of the elections. A condition of the ex-parte injunction was that an inter parties summons for the continuation of the injunction be filed within 7 days. The appellant did comply with this condition but never prosecuted the summons for the continuation of the injunction. On 26" January 2014, the DPP conducted the re-run where again, there was a sole candidate Ms Vera Chelewani and she was declared a winner. The appellant abandoned case number 6613 of 2013 which was commenced at the Principle Registry against the Registered Trustees of DPP and took out at the District Registry Zomba, again an ex-parte injunction against the Electoral Commission restraining it from recognising Ms Vera Chelewani and accepting her nomination papers as a DPP candidate for Nsanje South West Constituency. The appellant, subsequently, presented her papers to the Electoral Commission as an Independent thereby changing the material facts of the case. The respondent, Electoral Commission upon seeing the change of circumstances applied inter parties to Zomba High Court to discharge the order of injunction based on the change of facts of the case. The application was heard on Good Friday 18" April 2014. The Honourable Justice Mwase delivered an aural ruling discharging the injunction and the reasoned ruling to follow. The hearing of the application was heard inter parties and when the aural ruling was delivered, all the parties in this case were in attendance. Being dissatisfied with the ruling, the appellant Ms Hellen Buluma on the following day, Saturday, 19" April 2014 made yet another ex-parte application to the Supreme Court for a stay of the High Court order discharging the injunction. The application was heard and an order of stay was granted. The application before this court is by the respondent the Malawi Electoral Commission to vacate the ex-parte stay order the appellant obtained on Easter Saturday before my brother Judge Honourable Justice Kapanda JA. Ms Vera Chelewani has joined as an interested Party. In order to save time, the parties; that is the Plaintiff, defendant and the interested party, informed the court that they had agreed to adopt their filed documents and allow the court make a determination. The documents for the respondent are summons to vacate the order of stay issued on 24" April, the affidavit by Norman Rudi dated 23 April 2014 and the skeleton arguments dated 28" April 2014. For the interested party the filed documents are, an affidavit by Ms Vera Chelewani filed on 24" April 2014, skeleton arguments filed on 24" April 2014, a Notice to raise preliminary issues and its skeleton arguments filed on 29th April 2014. The Documents for the appellant are summons for stay of an order discharging the injunction filed together with the affidavit sworn by Mauya Msuku, skeleton arguments filed in support for summons for stay, an affidavit sworn by Counsel in response to the interested Party's application to raise preliminary issues and the skeleton arguments in support of affidavit in response. Before the hearing of the summons to discharge the stay order, the interested party raised two preliminary issues. The first is that the appellant Ms Buluma in bringing her summons for stay of the order of the lower court to the Supreme Court, did not comply with Order 59/13/9 of the RSC which provides the procedure and practice to be followed in cases of this nature. The procedure and practice is; where a party wishes to commence stay proceedings in the Supreme Court, he/she must first make the application in the court below. In the cases of Crooper v. Smith (1883) 24 Ch. D 305 and Brown v Brook (1902) 86 L. T. 373 C. A. it was held that an application for stay must first be made to the court below. If it is refused the application must be made to the court of appeal which is not an appeal since the jurisdiction is concurrent. Mr Gondwe on behalf of the interested party averred that the appellant’s application for stay should have been made to the Court below at the time it gave its judgment. If not then the appellant should have made subsequently the application by notice. If that application for stay had been refused then and only then would the appellant be entitled to make the application to the Supreme Court. It was submitted by Counsel for the interested party that there must be evidence of refusal for the Supreme Court to assume jurisdiction. He pointed out that indeed the jurisdiction of the Supreme Court and High Court in such matters is concurrent, but the High Court must first deal with the application and in the case of a refusal the matter goes to the Supreme Court. He argued that the Appellant’s application was brought to this court prematurely. Citing the cases of Kamwangala vs Republic and Dr. Muluzi_vs Director of ACB, he submitted that jurisdiction is conferred by statute. It is not created by administrative hiccups. The second preliminary issue that was raised is that for an appeal to be filed against an interlocutory order by a High Court Judge, leave to appeal must be obtained from the court of first Instance. Mr. Gondwe argued that the Plaintiff's summons for stay was filed without leave to appeal. As such it is the interested party’s prayer that the order of stay that was granted should be dismissed for non compliance with Section 21 of the Supreme Court of Appeal Act which makes provision that an applicant cannot lodge an appeal without leave of the court of first instance. Counsel for the Respondent, Mr Noel Chalamanda agreed with the interested party’s submission and prayer. In reply, Mr Kandeya on behalf of his client the appellant submitted that there is no rule that prohibits application in the Supreme Court and that if circumstances so require there is no irregularity in making the application in the Supreme Court. He submitted that in the present case, the court dealing with the application to discharge the injunction sat on Easter Friday which was a holiday. The court specifically said that it sat on a holiday because of the urgent nature of the case. He avers that all the parties including the Court treated this matter as urgent therefore there was no irregularity in making an application of stay in the Supreme Court as the circumstances of the case justified it. In response to the interested party’s averment that the application for stay could have been made in court at the pronouncement of the discharge of the injunction, he argued that he had to consult his client before he could make an aural application before the court of first instance since it is not a requirement that an application for stay must be made there and then. He also submitted that being Easter holiday the court in Zomba was not available. With regard to the second issue raised by the interested party, in response the appellant said that exhibit JDOK1 shows that leave was sought from the High Court. The application for leave was made on 30" April 2014 and that to date the application has not been heard. He further submitted that grounds of appeal have not been filed because the written ruling has not been perfected yet. However, that is not a hindrance because there is no rule that grounds of appeal should be submitted before the hearing of an application for stay. That notwithstanding he submitted that the appellant is ready to proceed with the appeal. | have taken my time to reproduce the facts and submissions by the parties. | am of the view that they are relevant in dealing with the interested party's preliminary objections. It is observed that the appellant, right from the onset of the issues herein, she has treated the matter with urgency and rightly so being an election matter and time is very important as the polling date is just round the corner. It is observed further that all the applications by the appellant have been made exparte and most of them were heard on holidays beginning with the applications for interim injunctions which were heard on 26" December 2013 and on 4" February 2014. The application to discharge the injunction was heard inter parties on Good Friday another holiday day and also the summons for stay was heard on Easter Saturday not only another holiday day but also a week end. In all this it is clear that both the parties and the court have treated this matter with the urgency that it demands. However, | notice that although this is an urgent matter and an election matter, the appellant has chosen to approach the Court exparte and not inter parties to ensure that a particular issue is dealt with once and where need be the matter will proceed to a higher court on appeal or a rehearing where the matter is interlocutory. Counsel for the appellant has made the most absurd assertions. With regard to his response as to why he did not apply for stay in the lower Court he said that although his colleague was present when the aural ruling was made, it is not a requirement that an application for stay must be made there and then. Further he averred that he had to consult his client before he could take another step. With regard to making the application before the lower court before he took the matter to the Supreme Court he said that the lower court was not available to sit being the Easter weekend a holiday. The same lawyer who observed that it was Easter holiday was in the lower court on a holiday day Good Friday. Any prudent lawyer seeing that it was a holiday weekend would have applied for stay order there and then but he did not. He chose to, on the following day, another Easter holiday day and weekend, to make the application for stay of the Lower Court’s Order in Blantyre at the Supreme Court of Appeal. It is trite that Courts are open 365 days a year. There are no days when the courts are shut to litigants. That is why both in the High Court and Supreme Court there are always motion judges. To allege that the Zomba court that sat on a Good Friday was not available to hear the summons for stay during the week end and holiday is unfortunate. Order 59/13/9 is very clear. It reads: “The application for stay must be made in the first instance to the court below. But if it is refused, the application to the court of appeal is not an appeal, the jurisdiction is concurrent... The application should if possible, be made to the court below at the time it gives judgement, but if not, it can be made subsequently on notice. If it is refused an application can be made to the court of appeal within a reasonable time.” it is surprising that the appellant who is fully aware of the urgency of the matter, should choose not to apply for stay in the lower Court at the time the ruling was delivered. Then she feels justified to jump the laid down process and go again exparte to the Supreme Court. This blatant violation of Order 59/13/9 is not acceptable. Coming to the second preliminary issue, the interested party pointed out that the appellant did not seek leave to appeal to the Supreme Court. This court has dealt with such matters before. In the recent case of Kettie Kamwangala Vs Republic Justice MSCA Miscellaneous Criminal Appeal No. 5 of 2013. Chipeta JA said: “Be as it may on reading the law that governs interlocutory appeals and matters of leave to appeal to the Supreme Court of Appeal, it is my observation that the Supreme Court will only assume jurisdiction to so consider leave once the court below has entertained it...the affidavit that has been filed in support of the present exprte application is concerned, it does not disclose an entertainment of an earlier application in the High Court accompanied by a refusal thereof. It in fact speaks about an application being lodged in the High Court and not being attended to.” In this case, the summons for a stay was heard on 19" April 2014 and the application for leave was filed in the lower court on 30th April 2014. It is submitted by the appellant that to date this application has not been heard. | observe that this application was made 11 days after the summons for stay was heard in the Supreme Court, and | notice that it is an ex-parte application according to practice ex-parte application normally come before a motion Judge and are heard with speed. It is surprising that this particular ex-parte which was filed on 30" April has not been heard to date. It is clear that leave has not been granted or indeed refused to justify the Supreme Court's assumption of jurisdiction. According to law and practice, summons for stay and leave to appeal must first be obtained from the lower court. Where leave or stay is refused only then can a party to a case apply to the Supreme Court. The Appellant in this case has not applied for stay in the lower court and has not obtained leave to appeal, from the Lower court, this Court cannot assume jurisdiction. The Summon is dismissed with costs to the Respondent and interested Party The preliminary issues raised by the interested party are simple and straight forward because they deal with laid down procedures and rules which every lawyer must have at the tips of his/her fingers and must always endeavour to adhere to them. To my surprise counsel for the appellant in both the skeleton arguments and aural submission has acted as if he was narrating a fiction story or poetry in that he has made wild statements without making any reference to written law, rules or even decided cases for that matter. Further, his assertions were contrary to law and practice. The Appellant’s lawyers have not acted with diligence and expertise in handling their client’s matter. | order that they should pay the cost of this application and not their client. MADE this 13" day of May 2014, at Blantyre. se Prva) _ Dr. Jane Ansah SC, JUDGE OF APPEAL