Mwanza Pilila Getrude Jere and 2 Ors v Munir Zulu and Anor [2022] ZMCC 49 (24 August 2022)

L't' IN THE CONSTITUTIONAL COURT 202 IICCZIAOO28 HOLDEN AT LUSAKA (Appellate Jurisdiction) IN THE MATTER OF: REPUBLIC OF ZAMBIA CONSTITUTIONAL COURT OF ZAMBIA 2 4 AUG 71022 REGISTRY LUSAKA I If WE t'ftkor IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: THE PARLIAMENTARY ELECTION PETITION LUMEZI FOR CONSTITUENCY NO. 46 OF DISTRICT NO. 13 LUMEZI SITUATE IN THE LUMEZI DISTRICT OF THE EASTERN PROVINCE OF THE REPUBLIC OF ZAMBIA HELD ON THURSDAY 121H AUGUST, 2021 THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1 VOLUME I OF THE LAWS OF ZAMBIA ARTICLES 1, 2, 5,8, 9,45,46,47,48, 49, 50, 54, 70, 71, 72 AND 73 OF THE CONSTITUTION OF ZAMBIA SECTION 29, 37, 38, 51, 52, 55, 58, 59, 60, 68, 69, 70, 71, 72, 75, 76, 77, 81, 82, 83, 86, 87, 89, 96, 97, 100, 106, 107, 108 OF THE ELECTORAL PROCESS ACT NO. 35 OF 2016 THE SCHEDULE TO THE ELECTORAL PROCESS ACT NO. 35 OF 2016 THE ELECTORAL CODE OF CONDUCT (CODE OF CONDUCT), THE ELECTORAL (CODE OF CONDUCT) REGULATIONS, STATUTORY INSTRUMENT NO. 52 OF 2011 THE ELECTORAL COMMISSION OF ZAMBIA ACT NO.25 OF 2016 BETWEEN: MWANZA PILILA GETRUDE JERE 1ST APPELLANT MACDONALD PHIRI 2ND APPELLANT ZELIPA Ci-IITSULO REPUBLIC OF ZAMBIA CONSTITUTIONAl. COURT OF ZAMBIA 3RD APPELLANT AND 24 AUG 2022 • MUNIR ZULU REGISTRY 5 P 0 BOX 50067, LUSAKA 1ST RESPONDENT ELECTORAL COMMISSION OF ZAMBIA 2 ND RESPONDENT CORAM: Sitali, Mulehga, Mulonda, Musaluke and Mulongoti, JJC. On 29th July, 2022 and 24 1h August, 2022. For the V Appellant: No Appearance For the 2d Appellant: No Appearance For the 3rd Appellant: Mr. B. Sitali - Messrs. Butler and Company Legal Practitioners For the V Respondent: Mr. J. tlunga and Mr. M. Zaza of Messrs. Ilunga and Company For the 2nd Respondent: Mr. M. Bwalya - In-house Counsel R2 3. The 31 Respondent's motion arises out of the 1st Respondent's motion filed into Court on 31d June, 2022 wherein the 1St Respondent asked us to review our decision dismissing his application to file heads of argument out of time. 4. The questions raised by the V Appellant for determination are: (i) Whether this Honourable Court is not functus officio as regards the 1st Respondent's application; and (ii) Whether in the absence of exceptional circumstances and new evidence, this Honourable Court can revisit its decision of 201h May, 2022 in which it had dismissed the Vt Respondent's application to file his heads of argument out of time. 5. The notice of motion is supported by an affidavit sworn by Ms. Zelipa Chitsulo the V Appellant herein. She deposes that when this matter came up on 20th May, 2022, it was heard by a panel of five Judges who upon hearing counsel for the Vt Respondent and the 3M Appellant on the 131 Respondent's application to file heads of argument out of time, dismissed the 11t Respondent's application. 6. That this Court being a Court of final resort has no jurisdiction to review its decision or re-open a matter for re-hearing except in exceptional circumstances and upon fresh evidence presented to it. 7. Further, that a perusal of the 1st Respondent's application shows that there are no exceptional circumstances and no fresh evidence R4 I Vt t? has been presented by the 1st Respondent to warrant a review of this Court's decision of May, 2022. 8. In the skeleton arguments filed in support of the motion, the 3rd Appellant cited the Supreme Court case of Finsbury Investments Limited & Others v Antonio Ventriglia & another' wherein the Supreme Court held that it has unfettered inherent jurisdiction to re- open its final decisions in exceptional circumstances where the interest of justice so demands. 9. It was therefore, the 3rd Appellant's argument that the only time an appellate court can revisit its decision is when there are exceptional circumstances. That the 1 It Respondent in the present case has not shown any exceptional circumstances or fresh evidence which would warrant this Court to review its earlier decision of 2011 May, 2022. It was submitted that, this Court is therefore, functus officio regarding the 1st Respondent's application. The 3rd Respondent prayed that the 1 Respondent's motion be dismissed with costs. 10. On 17th June, 2022 the 11t Respondent filed an affidavit in opposition to the 3rd Appellant's notice of motion together with skeleton arguments. 11. In the affidavit in opposition, the jst Respondent deposed that at the R5 hearing of the appeal on 20 May, 2022 he was not allowed to make oral submissions through his Advocates on the premise that he had not filed his heads of argument. That the Court's decision to deny him leave to make submissions in this matter would result in an irreversible prejudice as he has not been heard by this Court of last resort. Further, that the delay in filing his heads of argument was not intentional but that he was unable to instruct his counsel within the limited time frame as provided for by the rules of this Court as he was looking for finances to sufficiently instruct counsel. 12. That the 111 Respondent wished to be heard on constitutional questions which are of public interest and that his motion would not prejudice the 3' Appellant. 13. In the skeleton arguments, the 1 st Respondent first tackled the issue of whether this Court is functus officio as regards his application for review. It was submitted that this Court is yet to make a determination on the appeal by the 3rd Appellant against the judgment of the High Court. That this Court is therefore, not functus officio regarding the 11t Respondent's application to review its decision of 20th May, 2022. The Supreme Court case of Ituna Partners v Zambia Open University Limited was cited in R6 a reference to the Court's holding that a court only becomes functus officio when all substantive issues in court have been determined by it. 14. On the question of whether in the absence of exceptional circumstances and new evidence this Court can revisit its decision of 20th May, 2022, the 1st Respondent submitted that the Finsbury' case relied upon by the 3rd Appellant reinforces the principle that the Supreme Court which is a court of last resort like this Court has jurisdiction to review, vary or rescind its decisions. 15. It was further submitted that the decision declining the application to file heads of argument out of time hinges on undue regard to procedural technicalities in that the l Respondent had his heads of argument prepared and ready to be filed when the matter came up on 2011 May, 2022.. That the circumstances would have been different had the jst Respondent appeared before Court seeking an adjournment. Article 118(2) (e) of the Constitution was cited wherein it is directed that justice shall be administered without undue regard to procedural technicalities. 16. The 1St Respondent urged us to dismiss the 3rd Appellant's motion with costs. 17. At the hearing of the 3 rd Appellant's motion both the 3rd Appellant and the Vt Respondent relied entirely on the documents filed in R7 A support of their respective positions. 18. Analysis and Decision 19. We have considered the motion by the 3rdAppellant and arguments in support. We have also considered the arguments in opposition by the 1st Respondent. 20. We note that the 31 Appellant's motion raises issues that have been argued in her affidavit in opposition and skeleton arguments to the 111 Respondent's motion at pages 44-54 of the consolidated record of motion. 21. This in our view wastes Court's time and only delays conclusion of matters. We have guided in numerous cases that raising motions upon motions is undesirable, untidy and superfluous. In the case of The Law Association of Zambia Others v The Attorney Genera 13 we guided as follows: This Court frowns upon the practice of raising preliminary issues which have a tendency of unnecessarily delaying proceedings. Given the policy implications of constitutional questions and the wide public interest in the said matters it is important that they are heard in a timely manner without undue delay. Litigants are therefore encouraged to incorporate their preliminary issues In their opposing affidavit and skeleton arguments so as to minimize the possibility of multiple hearings. 22. We restate these sentiments in this matter. We therefore, hold that R8 the 311 Appellant's motion was unnecessary as her arguments opposing the 1st Respondent's motion are similar to her arguments on the preliminary issue she has raised. 23. The 3 rd Appellant's motion is therefore, dismissed. 24. We order each party to bear their own costs • 25. We further order that the Ist Respondent's motion to review our decision of 20th May, 2022 will be heard by the Court on 29th August, 2022 at 09.00 hours. A. M. SITALI CONSTITUTIONAL COURT JUDGE M. S. MULENGA P. MULONDA CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE M. USA UKE CONSTITUTIONAL dOURT JUDGE R9