Nchito and Others v Council of the Zambia Institute of Advanced Legal Education (HP 453 of 2015) [2015] ZMHC 160 (30 October 2015)

'; , IN THE HIGH COURT FOR ZAMBIA 2015/HP/453 AT THE LUSAKA PRINCIPAL REGISTRY (CivilJurisdiction) BETWEEN: KAPUNGWE NCHITO WILLIAM PHIRI AGGREY CHIMULU MUKOLOBA MWANSA CHARLES CHANGANO ELEAZER RABINDRANATH PILLAI DURAIRAJAN AND 1ST APPLICANT 2ND APPLICANT 3RD APPLICANT 4TH APPLICANT 5TH APPLICANT 6TH APPLICANT THE COUNCIL OF THE ZAMBIA INSTITUTE OF ADVANCED LEGAL EDUCATION RESPONDENT Before The HonOl.:.rableMrs. Justice J . K. Kabuka in Chambers, The 3Dth day of October, 2015. FOR THE 6TH APPLICANT: Mr. R. Peterson, Messrs. Chibesakunda & Co. FOR THE RESPONDENT: Mr. L. Linyama, Messrs. Eric Silwamba, Jalasi & Linyama-Legal Practitioners. RULING Case and Legislation referred to: I. Robert Lawrence Roy vs Chikataka Ranching Company Limited (1980) Z. R.198 (He). T~e High Court R.lles Cap 27 Order 39 (2). .. ". R2 The 6th Applican: applies for special leave to re'liew a judgment of this Court on grounds that he only became aware of the same long after it had been delivere:l. This ruling is on that application. The background ~o the matter is that, by judg:nent delivered on 27th [\larch, 2015 this Court declined to grant the Applicant's application in which he \\'as seeking orders declaring that, after thrice unsuccessfully a~tempting to qualify as a Legal Practitioner; and serving the consequential five year bar, he was not required to: (i) re- enrol as a student with the Respondent's institution for Advanced Legal Education; and (ii) re-sit all the courses including the Heads, in which he had previously passed. The appjcation for special leave of this Court to revIew its said judgment was filed on 6th May, 2015. In his ",-ffidavitin support, the Applicant contends, he only became aware of the Court's judgment on 23rd April, 2015 which was long after the 14 d",-yperiod within which an application for review of a judgment can be brought as provided by 0.39 (1) of the High Court Rules. The application is brought pursuant to 0.39 (21of the High Court Rules. There was no affidavit filed in opposition to the application. When the matter came up for hearing, Counsel for the A]:plicant relied on the afEdavit in support of the application, the substance of which was that, he only ";)ecame aware of the court's judgment on 23rd April, 2C15 whi:::h was long after the 14 day peLod within which an applicatic.n for :-eviewof a judgment can be brought. In resp0:lse to that argument, Learned Counsel M:-. Linyama's arguments were t:. the effect that, the jurisdicti::m of the court under R3 0.39 reqUires that there must be sufficient grounds disclosed to warrant such a review. That such leave is not given u!1less (i) there is discovered :n8.~erial evidence which would have had material effect upon the decision of the court (ii) that this evidence has been discovered since the decision; and (iii) it could not with reasonable diligen.:e, have been discovered before. The case of Robert Lawrence Roy vs Chitakata Ranching Company Limited (1) was cited as authority for the submission. Mr. Linyama went on to submit, that perusal of the Applicant's affidavit in support of the application, shows the fresh evidence relied upon for seeking review has not been particularised for the court to determine that it is materia!. Neither has the Applican~ demonstrated that a diligect search had previously been embarked u?on for this evidence, but had failed. In his brief reply on .behalf of the Applicant, Mr. Peterson submitted, the requirements outlined by Mr. Linyama must be met in the substan~ive application for review. The applic3.tion now before this Court is merely for leave and as such is not an application for review. That all the Applicant is required to demonstrat~ to the satisfaction of the court at this stage, is the reason he failed tc make tr_e application within the permitted fourteen (14) day period. Counsel urged this Court to find be Applicant had discharged the onus and grant him the leave sought. I have considered :he Applicant's affidavit evidence in support of the applicaticn. I have also considered arguments ty Learned Counsel on both sides, as well as the law relied on. I accept this a:;>plicationis indeed one for le=.ve only. I also find the main issue arising for determination of this court is whether the Applicant h8.s advanced justifiable reasons for seeking leave for review of judgmer-t, after (14) days. I . , R4 Order ::;0)rule 2 o]fthe High Court Rules relied upon for bringing the applicat:on state., as follows: "2. Any application for review of any judgment or decision must be made not later than fourteen days after such judgment or decision. After the expiration of fourteen days, an application for review shall not be admitted, except by special leave of the Judge on such terms as seem just." I have :::onsidered the reasons for seeking review as outlined in paragraphs 4 and 5 of the affidavit in support stating that, the Applic3I1t only became aware of the judgment after the time for review had lapsed. Suffice to note, that review of judgment should be considered in exceptional cases, if there is to be any finalit:l to ligation. I find, if that objective is to be ever met, then reasons such as the one given by tr.e Applicant should not be entertai:1ed. Leave I~Jrreview is accordingly, declined. c::; =:::~ J. K. K ABU K A JUDGE