Miles Bwalya Sampa v Attorney General and 4 Ors (2024/CCZ/0024) [2025] ZMCC 16 (25 August 2025)

IN THE CONSTITUTIONAL COURT OF ZAMBIA AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) 2024/CCZ/0024 IN THE MATTER OF: THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT, AND NO.2 of 2016 IN THE MATTER OF: ORDER IV RULE 1 OF THE CONSTITUTIONAL COURT AND RULES IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLE 210 OF THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO.2 OF 2016 AND IN THE MATTER OF: BETWEEN: MILES BWALYA SAMPA And THE TRANSACTION INVOLVING MOPANI COPPER MINES (MCM) AND INTERNATIONAL RESOURCES HOLDINGS (IRH) REPUBLIC ~ ZAM~~A I co:-!tnTunoNAL c o uRT oc; ZAMBIA l l~ ~ rIJ l '---:::-GISTRY 1 J ~ 2 5 AUG 2~25 ~.-- , PETITIONER ATTORNEY GENERAL ~50007, LUSAKA" . , ZCCM INVESTMENTS HOLDING PLC MOPANI COPPER MINES PLC DELTA MINING LIMITED THE LAW ASSOCIATION OF ZAMBIA i5t RESPONDENT 2nd RESPONDENT 3 rd RESPONDENT 4th RESPONDENT INTENDED AMICUS CURIAE Coram: Mwandenga, JC on the 7th August and 25th August, 2025 For the Petitioner: For the 1st Respondent: Mr. P. K. Chibundi, Mosha & Company Ms. M . Katolo, Senior State Advocate and Mrs. R. C. Mulolani, Assistant Senior State Advocate from the Attorney General' s Chambers Rl For the 2nd Respondent: For the 3rd Respondent: For the 4th Respondent: Mr. M. Nchito, SC with Mr. C. Hamwela, and Mr. K Sichinga from Messrs. Nchito and Nchito Mr. J. lllunga with Ms. B. F. Mulenga from Messrs. lllunga & Company with Mr. W. Hamweene, In House Counsel Mr. C. P. Chuula with Mr. J. Ngisi and Mr. A. Akapelwa from Messrs. Chibesakunda & Company appearing with Mr. J. Jalasi & Mr. W. Chinyama from Messrs. ESJL Legal Practitioners For the Intended Amicus Curiae: Mr. F. S. Chipompela, Messrs. Joseph Chirwa & Company RULING Cases referred to: 1. Benjamin Mwelwa v the Attorney General, Electoral Commission of Zambia, Steven Katuka (In his capacity as Secretary General of the United Party for National Development), Davies Mwila (In his capacity as Secretary General of the Patriotic Front) and Elizabetha Katongo Chitika (In her capacity as National Secretary for the Movement for Multiparty Democracy) 2020/CCZ/007 2. Costello v Somerset County Council (1993] 1 WLR 256 3. Nkhuwa v Lusaka Tyre Services Limited (1977) Z. R.43 4. Sipalo v Mundia (1966) Z. R. 124 5. Jones v National Coal Board (1957] 2 Q. B.55 6. Twampane Mining Cooperative Society Limited v E and M Storti Limited (2011) 3 Z. R. 67 7. Nahar Investments Limited v Grindlays Bank International Zambia Limited (1984) Z. R.81 8. Anderson K Mazoka, Lt General Christon Tembo & Godfrey K Miyanda v Levy p Mwanawasa, Electoral Commission of Zambia & The Attorney General (2005) z. R.138 9. Finnegan v Parkside Health Authority [1979] EWCA Civ 2774 10. Zambia Revenue Authority v Hitech Trading Company Limited (2001) Z. R. 17 Legislation referred to: 1. The Constitution of Zambia (Amendment) Act, No.2 of 2016 2. The Constitutional Court Act, No. 2 of 2016 3. The Constitutional Court Rules, Statutory Instrument No.37 of 2016 4. The Law Association of Zambia Act, Cap 30 of the Laws of Zambia R2 Introduction and b k ac ground This Ruling decides an application by the Law Association of Zambia, the Intended Amicus curiae (the Applicant), styled as being for leave to comply with the Order of Court dated 10th June, 2025 (the Application). The Application was originally made by an ex parte summons dated 30th July, 2025 pursuant to Order 15 Rule 7 of the Constitutional Court Rules, 2016, Statutory Instrument No.37 of 2016 (CCR) as read with Order 3 Rule 2 of the Rules of the Supreme Court of England (White Book) 1999 Edition (RSC) (the Summons). As the Order dated 10th June, 2025 (the Order) that the Applicant intends to comply with out of time was made: (a) by the Constitutional Court (the full Court) following a referral from me qua single Judge after I had heard an interlocutory application to be admitted as amicus curiae by the Applicant (the amicus Application) which was contested by the then Respondent now the ist Respondent; and (b) at a sitting where all other parties had subsequently been joined to the Petition in these proceedings:- I therefore formed the view that in the interest of justice, the Application should be heard inter R3 • partes hence the A . . pphcat1on being heard inter partes on the 7t h August, 2025. l21 The Petitioner M·1 ' 1 es walya Sampa, who describes himself as a citizen of Zambia and ad I I d u Y e ecte Member of Parliament for Matero Constituency, commenced the petition in these proceedings on the 15t h December, 2024 (the Petition) against the Attorney General of the Republic of Zambia, the now pt Respondent,. The Petition is alleging contravention of Article 210 of the Constitution of Zambia (Amendment) Act No. 2 of 2016 (the Constitution) vis-a-vis a certain transaction involving Mopani Copper Mines Pie (MCM) and International Resources Holdings (IRH). The Petitioner is seeking a number of reliefs. [31 On the 2ist March, 2025 during the interlocutory stages of these / proceedings, the Applicant filed the amicus Application. (41 The amicus Application was heard by me qua single Judge of the Constitutional Court and by a Ruling handed down on 14t h April, 2025 I referred consideration of a certain question and/or the Application to the full Court. This is what I inter alia stated in my said Ruling: 2.3 Upon reflection on the issues at hand I am of the view that one of the questions to be decided is whether an application under section 12 of the CCA aforesaid is to be heard as an interlocutory application by a single judge or the Constitutional Court. In the circumstances therefore, in R4 keeping with Arr 1 referral of co • sing e Judge f th t th ~c e _ 128(2) of the Constitution which provides for the nstitut1onal questions before a court (which includes a O h e Court) to the Constitutional Court I refer the question t e Constitutional Court for determination and/or consideration of e ~ppllcation. For ease of reference Article 128(2) of the Constitution provides that: Subject to Article 28(2), where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court. [S] On the 10t h June, 2025 when the Petition came up for hearing and determination by the full Court, Mr. Chipompela Counsel for the Appl icant sought guidance from the full Court on how to proceed with the matter as the amicus Application had been referred to the full Court. The full Court stated as follows : Yes indeed your application has been brought to the Court's attention. However, our perusal of the application reveals that it is incomplete. So, before we can consider it you will need to file additional documents. And we are going to order that within 14 days of the date hereof you file the following documents: Firstly, evidence of your expertise in the particular matter before us. Secondly. your amicus brief ... (Emphasis supplied) [6] After disposing of the issue raised by Mr. Chipompela the full Court then decided to join the 2nd , 3rd and 4t h Respondents to the Petition under Order S rule 4 of the CCR which allows the Court of its own motion to join persons that it believes ought to be part of a matter to be joined as parties. The full Court thereafter also decided to return or sent back the case to the single Judge for further scheduling. I am the single Judge in this case. RS [7) \t. h is t e Order referred t . 0 in the excerpt in paragraph s that the Applicant failed to comply w·th h · · , ence the Application before me. The Applicant's case l81 The Summons was supported by an affidavit in support {affidavit in support) that was sworn by Mr. Chipompela as well as skeleton arguments and a list of authorities. [9) In the most material respects the affiant of the affidavit in support deposed as follows: 3. 4. 5. 6. 7. That on the 10th June, 2025, this Honourable Court did sit for purposes of hearing this matter which included the application for the intended amicus curia [sic] to be added as Amicus Curia [sic]. The Court directed that in 14 days the Intended Amicus Curia [sic] does file a list of experts and the proposed brief for the Court's consideration. That the Intended Amicus Curia [sic] did not manage to comply with the Court's order as the list was being finalized and all the necessary qualification of the persons was being verified. That the list is now ready and the same is shown to me and marked as "SGCl." That this Honourable Court is clothed with the requisite jurisdiction and discretion to grant the Amicus Curia [sic] leave to file out of time. That the Petitioners and Respondents will not in any way be prejudiced by the grant of this application to the Amicus Curia [sic]. That I crave the Indulgence of this Honourable Court to grant this application as the delay was in no way meant to disrespect this Honourable Court, but arose at the fact that the Amicus was merely confirming details of all its professionals. R6 [10] The Applicant ope ·t ns I s arguments by highlighting the jurisdiction of the Court to grant an application for leave to comply with orders for direction out of time as provided under Order 15 rule 7 of the CCR which provides t hat: The Court may extend time limited by these rules, or by the decision of the Court, except where time is specifically limited by the Constitution. [11] The Applicant then goes on to rope in Order 3 rule 5 of the RSC which provides that: (1) (2) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings. The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after expiration of that period. [12) Accord ing to the Applicant the above cited provisions clothe the Court with the requisite jurisdiction to extend time within which a party has to comply with an order of the Court as provided by Order 15 rule 7 of the CCR and also with the necessary discretion to make such order where a party makes the necessary application following the expiration of the time within which to comply with the order as provided for under Order 3 Rule 5 of the RSC. In this regard the Applicant called in aid the case of Benjamin Mwelwa v the Attorney General, Electoral Commission of Zambia, Steven Katuka (In his capacity as Secretary General of the United Party for National Development), Davies Mwila (In his capacity as Secretary General of the R7 Patriotic Front) and El" b •za etha Katongo Chitika {In her capacity as National . Secretary for the Movement for Multiparty Democracy)1 where the Constitutional Court held that: The purpose of this discretion is elaborated in the explanatory note under paragraph 3/5/2 which provides that the object of the rule is to give the court discretion to extend time with a view to the avoidance of injustice to the parties. Thus, the court in exercising discretion must decide whether or not to excuse a litigant based on the facts and circumstances of each case on its own merits and at the core of exercising this discretion is ensuring that justice is served. [13] For purposes of considering whether or not to make an order under Order 3 rule 5 of the RSC the Applicant called in aid the case of Costello v Somerset County Council 2 where it was stated : The first principle is that the rules of court and associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met. This principle is reflected in a series of rules giving the court discretion to dismiss on failure to comply with a time limit ... The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. This principle is reflected in the general discretion to extend time conferred by Order 3 rule 5, a discretion to be exercised in accordance with the requirements of justice in the particular case. [14] With the foregoing matters in mind, according to the Applicant the question for determination by the Court is whether it is in the interest of justice to grant the Application. [15] The Applicant goes on to acknowledge that it failed to comply with the Order (in its words) " ... to file a list of its experts and a brief within 14 days ... " but R8 then argues that it had . given reason " .. .for the fa,Jure which was not ,n any . . way directed at disrespecting this Honourable Court." llG1 The App\icant re\ent\essly contends that in the current circumstances of the case it had shown good reason as to why there was a failure to comply with the rules of the Court as well as a regret attributed to the failure . In this regard the Applicant called in aid the case of Nkhuwa v Lusaka Tyre Services limited3 where the Supreme Court stated that: The Rules of Court must prima fade be observed and in order to justify a Court in extending the time during which some step In procedure was required to be taken there must be some material on which the Court can exercise its discretion. If the law were otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. (17) Further the Applicant posited that it presented the Application in good faith and thus it had shown good reason why the Application should be granted in its favour. In this regard the Applicant called in aid the case of Sipalo v Mundia4 where the High Court held that: Where the Court has discretion to enlarge time for a procedural step, it will not exercise that discretion in favour of the applicant unless there is some material on which the discretion can be exercised. [18] According to the Applicant, based on the foregoing matters it had met the requirements for an extension of time within which to comply with the Order R9 ato file a list of experts and amicus brief .. " The Applicant prayed that it be granted leave " ... to file the List of Experts and Amicus Brief our {sic] of time. The Petitioner's, 1st Respondent's, 2nd Respondent's and 3rd Respondent's cases [l9] The Petitioner, p t Respondent, 2nd Respondent and 3rd Respondent did not file any affidavits in opposition or written arguments. The 4th Respondent's case [20] On the 6th August, 2025 the 4th Respondent filed its affidavit in opposition to the Summons sworn by one Amusa Gabriel Akapelwa (the affidavit in opposition) and a combined list of authorities and skeleton arguments. [21] In the most material respects the affiant of the affidavit in opposition deposed as follows: 8. 9. 10. That on the 31st day of July 2025, the Applicant applied to this Honourable Court in Chambers before a single Judge by way of Summons seeking leave to Comply with the Order of the full Bench out of time. That I verily believe that this Honourable Court ought to have been seized as a full bench given that the Unless Order was issued by the Constitutional Court while sitting as a full bench and not by a single Judge. That in premises, I verily believe that this Court, sitting as a Judge, is functus officio as to the question of granting leave for the Amicus Curiae to participate in the proceedings as that has been escalated to the full bench. 29. That paragraph 6 of the Affidavit in Support is disputed. The application will cause further delay in the proceedings which have already been going on for nine months. RlO [22] I shall not rehash th 0 er paragraphs in the affidavit in opposition because I believe thev concern or touch issues that are beyond the remit of my task in the Application. [231 The 4 th Respondent begins its arguments by setting out the background and preamble of the proceedings in this matter and proceeds to proffer arguments under the following heads: (a) The Intended Amicus Curiae has not met the threshold required to be (b) (c) (d) (e) (f) (h) granted an extension of time; The Intended Amicus Curiae has not provided sufficient reasons for its delay and the delay is inordinate; The Intended Amicus Curiae has acted in a dilatory manner; The Respondents will be prejudiced if an extension of time is granted; The Intended Amicus Curiae has not complied with the Unless Order made by the Court; The Intended Amicus Curiae should not be allowed to flout the Rules of Procedure of this Court; and The Intended Amicus Curiae's Application is incompetently brought before this Court. [24) The 4th Respondent opens his arguments under head "a" by stating that it is well established law that an application for an extension of time is discretionary. And goes on to acknowledge the fact that the Applicant has cited authorities to support the fact this Court has the discretion to grant extensions oftime i.e., Order 15 rule 7 of the CCR and Order 3 rule 5 of the RSC. Rll [25] The 4 th Respondent called in aid the case of Jones v National Coal Board5 where it was stated regarding the exercise of the court' s discretionary powers as follows: The application of judicial discretion must be enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with calmness of mind, freedom from partiality, not swayed by sympathy, not warped by prejudice nor moved by any kind of influence, save alone the t h overwhelming passion to what is just. (Emphasis supplied by the 4 Respondent) [261 According to the 4th Respondent the authorities that it relies on, in its skeleton arguments show that in exercising the discretionary power as to whether or not to grant an application for an order for extension of time, the court pays attention to the following key factors: (a) The reasons for the delay and whether there was dilatory conduct and/or ma/a fides on the part of the applicant; (b) Whether there has been, in the circumstances, an inordinate delay by the applicant; The circumstances of the particular case; and (c) (d) Whether the respondent will suffer prejudice. [27) The 4th Respondent cited a number of cases from the Court of Appeal to support the position that a party cannot merely succeed on an application for extension based on their contentions for reasons for the delay, but that material must be shown to demonstrate with evidence whether sufficient R12 reasons exist I sh II h · a not re ash those cases but I must state that I have taken due note of them. [281 Reference was also made to a Supreme Court case of Twampane Mining Cooperative Society Limited v E and M Storti Limited6 where it was noted that in determining an application for an extension of time within which to appeal, the Court will have regard to the circumstances of the delay, the reasons for the delay and length of the delay. In that case a delay of 39 days from the date on which the appeal ought to have been filed to the date on which the application for extension of time was made, was held to have worked against the applicant. The Supreme Court said: In sum, the appellant did not merit to be granted an extension of time because it sat on its rights - by not appealing within the prescribed period, by not filing its application for extension of time promptly. (Emphasis supplied by the 4th Respondent) [29] Under head "b" the 4th Respondent assails the Applicant's reasons for failing to comply with the Order namely that it was compiling a list of experts and verifying their qualifications. According to the 4th Respondent these reasons were clearly devoid of any merit to meet the requirements and threshold required for granting an extension of time. [30] The 4th Respondent posits that in the circumstances of this case the Applicant's delay in filing the list of experts must be considered to be R13 inordinate as ·t h as taken over 5 weeks to comp ile the list and verr Y 'f information wh· h · rc rt ought to have already gathered from inception. . [3l] Concerning head "c" the 4th Respondent posited that the Applicant acted in a lackadaisical manner towards the Order directing it to file its amicus documents. The 4th Respondent posited in this regard, that the Applicant ought to have filed the amicus documents by t he 24th June, 2025 and yet t he record shows that the Application was filed on 30th July, 2025. In this rega rd the 4th Respondent posited that no reasons have been given as to why the Applicant did not file the Application when the deadline was approaching or did not file the Application shortly after the deadline. [32] The 4th Respondent surmises that the Applicant merely acted in a reactionary manner by filing the Application on 30th July, 2025 because the matter was coming up for a Status Conference on the 31st July,2025. [33] Concerning head "d" the 4th Respondent posited that granting the Application would be prejudicial to the Respondents. Accord ing to the 4th Respondent the prejudice lies in the fact this matter had been going on for almost a year and its subject matter puts into question the integrity of the transaction involving the 3rd Respondent vis-a-vis whether it was in breach of Article 210 of the Constitution. R14 I I I I I (34] It was posited that the matter had not only garnered significant pu bl' rc interest but also ·t 1 was particularly sensitive to the 2nd to 4th Respondents' reputations. Therefore, the matter ought to be dealt with expeditiously by the Court. [35] According to the 4th Respondent the effect of allowing the Application is that further delay will be occasioned to the matter. In this regard it was submitted that granting the Application would prejudice the Respondents' rights to have the matter dealt with expeditiously. [36] Lastly under head "d" according to the 4th Respondent there would be no prejudice to any of the parties in the event that the Application is not granted and this was on account of the fact that the other parties had already filed the relevant documents before the Court and it was now down to the Court to carry out its constitutional duty. [37] Concerning head "e" upon perusing the arguments by the 4th Respondent I come to the conclusion that the arguments concern or touch an issue that is not before me. The issue before me is simply whether the Application should be granted. I am not concerned with the effect of non-compliance with the Order. Therefore, I shall not rehash the 4th Respondent's arguments under head "e" . RlS Concerning head "f" upon perusing the arguments by the 4 th Respondent I . also come to the co 1 • nc usron that the arguments concern or touch on an issue . th at is not before me. I repeat the issue before me is simply whether the Application should be granted. This issue comes against the backdrop that the Applicant did not comply with the Order. In the Application I am not concerned with the effect of the non-compliance with the Order. Therefore, I shall not rehash the 4th Respondent's arguments under head "f." [39] Concerning head "h" the 4th Respondent opens its arguments by submitting that this Court isfunctus officio to hear the Application. According to the 4th Respondent this Court cannot vary, extend or entertain an application relating to an order issued by the full bench. Therefore, the full bench retains the jurisdiction to determine such an application. [40] It was posited that the Applicant's failure to comply within the prescribed time has the effect of excluding it from these proceedings unless the full bench grants relief. Therefore, it was so ~osited that sitting as a single Judge I lack jurisdiction to entertain the Application. The 4th Respon~ent concluded its submissions under head "h" by boldly stating that " ... it would therefore be a serious procedural irregularity for this Court, sitting as a single judge, to assume jurisdiction where it has none." R16 [41] With the foregoi ng arguments the 4th Respondent finally submitted that based on the particular facts of the case at hand and the authorities relied upon the Application must fail. The hearing [42] Mr. Chipompela briefly submitted that he was placing reliance on the Summons together with its supporting affidavit, list of authorities and skeleton arguments all filed on 30th July, 2025 and that he would not augment the same. (43] Mr. Chibundi, Counsel for the Petitioner opted to leave it to the Court's discretion. [44] Ms. Katolo, Counsel for the 1st Respondent inter alia submitted that it was a well-known fact in law that this Court has discretion to extend time for a party to litigation to comply with the rules of the Court. However, it was submitted that the 1st Respondent's objection to the Application was premised on the case of Nahar Investments Limited v Grindlays Bank International Zambia Limited7 . Based on that case it was submitted that an applicant that sleeps on their rights and only attempts to apply for an extension of time when it is too late cannot blame the Court for their own lapses. R17 L [45] [46] It was further posited h t at the reasons given for the Application did not excuse the inordinate delay. It was also posited based on the case of Anderson K Mazoka, Lt General Christon Tembo & Godfrey K Miyanda v Levy P Mwanawasa, Electoral Commission of Zambia & The Attorney General 8 that an amicus curiae was not a litigant but merely assists the Court to clarify legal points to facilitate an informed judgment and that the Applicant's inordinate delay was delaying the matter. [47] According to Counsel, the pt Respondent objects to the Application as the Applicant slept on its right and the reasons advanced for the Application were not sufficient. [48] Ms. Mulolani Co-Counsel for the 1st Respondent submitted inter alia that the Applicant had not provided the Court with a reasonable explanation for the delay. [49] Counsel also submitted that by not exhibiting the amicus brief which the Applicant wishes to rely on, it shows lack of seriousness on the part of the Applicant. In this regard it was submitted that it was seemingly starting to appear that it was a tactic by the Applicant to derail and delay the court proceedings. R18 [50] Counsel prayed that th . . e application be denied, dismissed and the Applicant . be denied joinder to the proceedings. 5l] Mr. Nchito, SC Counsel for the 2nd Respondent opted to leave it to the Court. [ [52] Mr. lllunga Counsel for the 3rd Respondent submitted inter alia that the Applicant had not offered sufficient reasons for the delay in making the Application, that the delay was inexcusable and inordinate and that there would be prejudice occasioned to the parties. But that there would be no prejudice occasioned to the Applicant if it were not joined to the proceedings. [53] Then Counsel embarked on submitting on matters that are not relevant to the Application. He concluded his submissions by stating that the Application had not met the threshold for this Court to grant the Application. [54] Mr. Akapelwa Counsel for the 4th Respondent submitted that in opposing the Application he would rely entirely on the affidavit in opposition, and the combined list of authorities and skeleton arguments filed on the 6t h August, 2025. [55] Mr. Jalasi Co-Counsel for the 4t h Respondent rose to augment what the other Counsel for the Respondents had submitted. To this end he raised three points namely: R19 (a) That on account of the Ruling of the 14th April, 2025 I was functus officio in so fa r as the Application was concerned· I (b) That the Order h soug t to be extended was an order that was made by the full Court and therefore the Application was incompetently before me qua single Judge because it ought to have been heard by the full Court; and (c) That the Order was an unless order and therefore the Applicant was to mandatorily comply with it within 14 days. [56] After observing that sadly the Applicant did not comply with the Order Counsel concluded his submissions by stating that the Applicant -~ .. must be punished, they must be put to the sword for their misgivings." [57] Mr. Chipompela in reply inter alia submitted as follows: (a) Concerning the arguments that the Respondents would suffer prejudice if the Application were to be granted:- that no prejudice would be suffered by any of them as no dates for hearing and determining the matter had been set and that a mere extension shall not cause any injury to any of the parties; (b) Concerning the argument that the Applicant would not suffer prejudice if the Application were not granted:- that the R20 Applicant was likely to ff . su er preJud1ce as 1t plays a critical role . . in the wheels of checks and balances· ' I (c) Cone · h ernmg t e purported incompetence of the Application before me:- that section S of the Constitutional Court Act, No. 2 of 2016 (CCA) grants a single Judge power to make certain decisions except final decisions of the Constitutional Court; and (d) While agreeing with the 4th Respondent that this Court referred the Application to the full Court:- that the application now before this Court is not asking this Court to decide on the amicus Application but rather the Applicant was seeking an extension of time to comply with the Order so that the full Cou rt can thereafter determine the amicus Application. [58] In concluding Counsel prayed that the Court should not put the Applicant to "the sword" as prayed by Co-Counsel of the 4th Respondent. Consideration and determination [59] I have considered the Summons, the affidavit in support, the list of authorities and skeleton arguments in support, the 4th Respondent' s affidavit in opposition, the combined list of authorities and skeleton arguments as well as the oral arguments made for and on behalf of the parties to these R21 proceedings. From the O t . u set I would like to take cognizance of the industry by Counsel for the m . . anner in which they put their arguments in a matter which was ideally an application for extension of time within which to comply with the Order but was fought as if the substantive application by the Intended Amicus Curiae was in issue. I also wish to also take cognizance of the poised position of Counsel who elected to leave the issue to the Court. [60] The Application before me is essentially an application for an extension of time to comply with the Order. The Application is made pursuant to the Orders referred to in paragraph 1. The Application is vehemently opposed by the Respondents except the Petitioner and 2nd Respondent as indicated earlier on. Before I proceed with this Ruling it is incumbent on me that I deal with some of the issues that the 4t h Respondent canvassed in its written arguments. Mr. Jalasi also spoke to the issues at the hearing. The issues raise jurisdictional points. As they raise jurisdictional points I shall therefore deal with them as a matter priority. [61] The first issue is that of my purportedly being functus officio to hear the Application. And the second issue is that of the Application being incompetently before me. R22 [62) The first issue has arise b h n ecause the 4t Respondent is of the view that in the Ruling handed down on 14th April, 2025 I had referred this matter to the full Court. And so, it was posited that I was thereforefunctus officio to hear the Application. [63] Functus officio is a Latin term meaning "having performed his or her office." In legal contexts, it signifies that an individual or body has completed their task or duty and, as a result has lost authority to take further action on the specific matter. By and large once the decision or judgment is rendered, the decision-maker isfunctus officio and cannot generally revisit or alter it. [64] The material portion of my Ruling through which I referred to the full Court a specific and pointed question has been reproduced in paragraph 4 above. But for ease of reference and in the material respects I said: Upon reflection on the issues at hand I am of the view that one of the questions to be decided is whether an application under section 12 of the CCA aforesaid is to be heard as an interlocutory application by a single judge or the Constitutional Court. In the circumstances therefore, in keeping with Article 128{2) of the Constitution which provides for the referral of constitutional questions before a court {which includes a single Judge of the Court) to the Constitutional Court I refer the question to the Constitutional Court for determination and/or consideration of the Application. (Emphasis supplied) [65] My expectation is that following consideration of the specific and pointed question, the full Court will either determine that an application under section 12 of the CCA has to be heard by a single Judge as an interlocutory R23 matter or that it has to be heard by the full Court. If the full Court decides that such application has to be heard by a single Judge then the matter would have to be remitted to me for further consideration as I have been allocated the responsibility of hearing and determining interlocutory matters in these proceedings. (I shall revert to this issue when dealing with the second issue raised by the 4th Respondent). Should it be decided that such an application must be heard and determined by the full Court then of course the full Court will have to hear and determine the amicus Application. (66) In my view therefore, I do not agree with the assertion that because of the Ruling I handed down on the 14th April , 2025 I am functus officio to hear the Application. My task in the Application is simply to hear and determine whether the Applicant can be given more time within which to comply with the Order and not to hear and determine whether the Applicant should be admitted as amicus curiae unless of course the full Court subsequently determines that I should do so as a single Judge. (67) This then leads me to consider the second issue namely that the Application is incompetently before me. The second issue has arisen because in my ruling handed down on the 14th April, 2025 I had referred consideration of a specific and pointed question to the full Court which then made the Order which was R24 not complied with by the A . PP ,cant. According to the 4th Respondent the Application ought the f b re ore to e heard and determined by the full Court nd a not by myself. I disagree with this position and I will explain why I disagree below. [68) In my view an application for extension of time within which to comply with an Order of the full Court is an interlocutory matter. An interlocutory matter in my view is a legal issue or application that arises during court proceedings but does not resolve the main issue of the case. It is a preliminary or intermediate stage in a legal proceeding, dealing with procedural or ancillary matters before a final decision is reached. In my view interlocutory matters can also be dealt as part of the scheduling process in an action. Scheduling under the CCR primarily involves the court determining the timetable for proceedings, including the filing of documents and hearing dates. l69] The Applicant relying on section 5 of the CCA posited that the Application is properly before me because I have the power to make cer\ain decisions except final ones. [70] In keeping with Article 129 of the Constitution interlocutory matters are matters that fall to be heard and determined by a single Judge on behalf of R25 the full Court. In materi 1 a respects Article 129 of the Constitution provides that: (1) (2) The Constitutional Co rt h II b not less th The Co . . u s a e constituted by an uneven number of _an~ ree Judges, except when hearing an interlocutory matter. nst1tut1onal Court shall be constituted by one judge when hearing h . an interlocutory matter . .... (Emphasis supplied) [71] Further as rightly pointed out by the Applicant a single Judge has power to deal with interlocutory matters as per section 5 of the CCA. Section 5 of the CCA provides that: A single judge of the Court may exercise a power vested in the Court not involving the decision of an appeal or a final decision in exercise of its original jurisdiction. [72] In my view therefore, since in hearing and determining the Application, I am merely but exercising a power vested in the full Court which will not result in a final decision of the main matter (amicus Application), I am of the view that the Application is competently before me and I therefore can and will hear and determine it. [73] Having disposed of the two issues I shall now proceed and deal with the substantive issue. The substantive issue being: Whether to grant the Applicant time to comply with the Order. As indicated earlier on the Application is vehemently opposed by the l5t, 3rd and 4th Respondents. R26 [74] I find it pertinent to reproduce th .. e provrsrons which speak to an application for extension of time within which to comply with a Court order and thereafter I will dispose of th A 1. . . . . e PP rcatron. The prov,s,ons in this regard are Order 15 rule 7 of the CCR and Order 3 rule 5 of the RSC. Order 15 rule 7(1) of the CCR provides that: The Court may extend time limited by these rules, or by a decision of the Court except where time is specifically limited by the Constitution. (Emphasis supplied) Order 3 rule 5 of the RSC on the other hand provides that: (1) (2) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings. The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after expiration of that period. (Emphasis supplied) [75] The use of the word " may" in the provisions above cited suggests that the Court is bestowed with a discretionary power. The Court therefore has discretionary power to grant an extension under these provisions. The explanatory note at paragraph 3/5/ 2 of the RSC says: '7he object of the rule is to give the court a discretion to extend time with a view to the avoidance of injustice to the parties." The Constitutional Court in the case of Benjamin Mwelwa v the Attorney General & Others1 said in connection with the portion cited from the RSC that: R27 ... the Court in exer .. . • I 1t1gant based on the f f o exercising this d'isc cising discreti acts and circu . re ion 1s ensu · t· t on must decide whether or not to excuse a ms ances of each own merits and at the core . ring t at Justice 1s served. h • . [76] The discretion however b , must e exercised judicially. Therefore, in considering whether to . . . . exercise the d1scret1on in favour of the applicant the court muSt by and large consider the reasons for the party's failure to comply with the order of the Court, whether the delay in applying for an extension was inordinate and whether the other parties will be prejudiced by an extension being granted . [77] In the Application, one ground which the Applicant has advanced as a reason for delay is the fact that it was compiling and finalizing a list of experts and verifying the qualifications and preparing the proposed amicus brief for the Court's consideration . This was vehemently challenged by the Pt, 3rd and 4 th Respondents on the ground that the Applicant did not provide a reasonable explanation for its failure to comply and for the delay in applying for the extension. [78] On my part I do not find the reason that the Applicant gave as being plausible. In my view the Applicant when making the amicus Application and the Application ought to have had the necessary information about its experts and also ought to have had sufficient material on which to ground its R28 ... the Court i I• • 1t1gant based of exercisi n exercising d" iscretion must d . o~ t~e facts and circumsta ng this discretion is en i ec1de whether or not to excuse a nces of each own merits and at the core sur ng that justice is served. [76] The discretion howeve r, must b e exercised judicially. Therefore, in considering whether t . o exercise the d' t· . ,sere ion in favour of the applicant the court must by and large c . ons1der the reasons for the party's failure to comply with the order of the Cou rt, whether the delay in applying for an extension was inordinate and wh th h . e er t e other parties will be prejudiced by an extension being granted. [77] In the Application, one ground which the Applicant has advanced as a reason for delay is the fact that it was compiling and finalizing a list of experts and verifying the qualifications and preparing the proposed amicus brief for the Court' s consideration. This was vehemently challenged by the 15 \ 3rd and 4 th Respondents on the ground that the Applicant did not provide a reasonable explanation for its failure to comply and for the delay in applying for the extension . [ On my part I do not find the reason that the Applicant gave as being 'bl plaus, e. n I my view the Applicant when making the amicus Appl ication and the App ,ca 10 I . t· n ought to have had the necessary information about its experts an a d lso ought to have had sufficient material on which to ground its R28 L ''That paragraph 6 of the Affidavit in Su cause further delay in th nine months. pport is disputed. The Application will e proceedings which have already been going on for . . . [81) From the immediate for . egomg matters it seems to me that the alleged prejudice to be suffered b th th Y e 4 Respondent is only the delay in these proceedings and nothing else. The 3rd Respondent did not adduce any evidence of prejudice that it would suffer but made arguments on the alleged prejudice that it would suffer at the bar. This does not help the 3rd Respondent at all. It was held by the Supreme Court in the case of Zambia Revenue Authority v Hitech Trading Company Limited 10 that: Arguments and submissions at the bar, spirited as they may be cannot be a substitute for sworn evidence. This position in my view applies to proceedings in this Court too. Therefore, in this matter there is no iota of evidence that the 3rd Respondent will suffer prejudice if the Application were to be granted. [82) But be the foregoing matters as they may be, in my view the granting of the Application before me is not likely to delay these proceedings because the hearing of the Petition is dependent on the exhaustion of all interlocutory matters, before the matter can be re-cause listed for hearing and determination. This is on account of the fact that on the 10th June, 2025 the full Court referred this case to a single Judge for further scheduling. R30 I Further in any event in my c 'd . ' ons1 ered view such a prejudice can no doubt be compensated by an order for costs sh Id ·t b ou I e necessary. [84] As regards applications under Order 3 rule 5 of the RSC it was stated in the case of Costellow v Somerset County Council2 that: The approach to applications under Order 3 rule 5 should not in most cases be very different. Save in special cases or exceptional circumstances, it can rarely be appropriate, on an overall requirement of what justice requires, to deny the plaintiff an extension (where the denial will stifle his action) because of a procedural default which, even if unjustifiable, has caused the defendant no prejudice for which he cannot be compensated by an award of costs. In short, an application under Order 3 rule 5 should ordinarily be granted where the overall justice of the case requires that the action be allowed to proceed. (Emphasis supplied) [851 With the immediate foregoing matters in mind, I am of the view that the overall justice of the case requires that the amicus Application must proceed so that the full Court should be able to deal with it, what with the fact that it was properly filed by the Applicant. This is despite the procedural default that has been occasioned by the Applicant by not providing certain information in the first instance and by failing to comply with the Order in the second instance. And above all, once an amicus curiae is admitted it is for the benefit and convenience of the Court and not the other parties. Therefore, in my view it would be in the interest of justice that the amicus Application should proceed and be heard and determined most probably by the full Court on the merits and should not be halted or derailed as a result R31 ---- --------- - of a procedural technicality Th d · e efault by the Applicant though regrettable and unwarranted should not h t erefore stand in the way of justice in this regard. [86] Having considered the · . circumstances of th,s case, I am of the view, that this is a proper case in which discretion can be exercised in favour of the Applicant but the Applicant should be condemned in costs. This is on account of the fact that the Applicant's approach to the Application as well as the amicus Application must be deprecated. The Applicant has displayed a total lack of seriousness towards an issue or issues that ought to have been taken seriously. Conclusion l87) In conclusion I grant the Applicant's application for leave to comply with the Order out of time. The evidence of the Applicant's expertise in the particular matter before the Court (and not merely a list of experts) and the amicus brief shall be filed by the 3rd September, 2025. [88] Costs for only the Application are awarded to the other parties hereto. R32