Malwa v Mulusa and Electoral Commission of Zambia (Appeal 5141 of 2012) [2014] ZMSC 41 (2 July 2014)

SCZ Judgment No. 28 of 2014 P664 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeals No. 125, 141 and 179 /2012 IN THE MATTER OF: SECTION 72 (1) (a) OF THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA AND IN THE MATTER OF: SECTION 93 (1) OF THE ELECTORAL ACT NO. 12 OF 2006 BETWEEN: NEWTON MALWA AND LUCKY MULUSA APPELLANT 1ST RESPONDENT ELECTORAL COMMISSION OF ZAMBIA 2ND RESPONDENT BETWEEN: SAUL ZULU AND APPELLANT VICTORIA KALIMA 1ST RESPONDENT ELECTORAL COMMISSION OF ZAMBIA 2ND RESPONDENT BETWEEN: DAVIES CHISOPA APPELLANT AND SYDNEY CHISANGA 1ST RESPONDENT ELECTORAL COMMISSION OF ZAMBIA 2ND RESPONDENT Coram: Mwanamwambwa, Actg D. C. J, Chibomba, Phiri, and Wanki, Muyovwe, J. J. S., Lisimba, Kaoma, Ag J. J. S. On the 3rd day of July 2014 For the 1st Appellants: For the 1st Respondents: with Lukona -J2- P665 Mr. B. C. Mutale, S. C., and with him, Mr. M. K. Kaunda both of Messrs Ellis and Company. Mr. A. D. M. Mumba of Messrs. A. D. Mwansa Mumba & Associates. 1. Mr. E. S. Silwamba, S. C. and him, Mr. A. J. Jalasi both of Silwamba, Jalasi and Linyama, Legal Practitioners. Mr. M. Chitambala of Messrs Chambers . Major C. A. Lisita of Messrs Central Chambers. 1. 2. 2. 3. For the 2nd Respondent: In house Legal Counsel JUDGMENT Mwanamwambwa, Act. D. C. J., delivered the Ruling of the Court Cases referred to: 1. Vincent I. Mwale v Eustarkio Kazonga & Another – Appeal No. 123/2012. 2. Christabel Ngimbu v Charles Kakoma & Another Appeal No. 19/2013. Legislation referred to: 1. Rules of the Supreme Court, 1999. Order 4. Rule 9 (1) Other Works referred to: 1. Atkin’s Court Forms 2nd Edition. Volume 37 (1995 Issue), pages 196 and 211. -J3- P666 On 12th February 2014, we stayed proceedings in these three motions, until after determination of the two earlier motions, involving Vincent Mwale v Eustarkio Kazonga and Electoral Commission of Zambia (ECZ)(1) and Christabel Ngimbu v Charles Kakoma & ECZ (2). In doing so, we clearly contemplated that the result of the two motions in question would, as test actions, in effect determine the three stayed motions. We stated that the two heard motions and the three stayed motions, have some common questions of law and facts. Firstly, all the five motions were made under Article 72 (1) (a) of the Constitution and Section 93 (1) of the Electoral Act, 2006. Secondly, all the five motions arise from Election Petitions which were decided against each of the 1 st Respondent therein. Thirdly, they are all, inter alia, seeking to bar the Respondents in question, from recontesting by- elections in the Constituencies concerned. We ordered the stay of proceedings on the authorities of Order 4, Rule 9 (1) of the Rules of the Supreme Court 1999 and Atkin’s Court Forms, 2nd Edition, Volume 37 (1995 Issue), pages 196 and 211. Today, we have dismissed, for lack of merit, the two motions that were heard on 17th December 2013. Since we regarded those two motions as test actions, we hereby similarly dismiss these three motions, for lack of merit. We -J4- order that each party bears its own costs, as these are Constitutional matters. P667 M. S. MWANAMWAMBWA ACTING DEPUTY CHIEF JUSTICE H. CHIBOMBA G. S. PHIRI SUPREME COURT JUDGE SUPREME COURT JUDGE M. E. WANKI E. C. MUYOVWE SUPREME COURT JUDGE SUPREME COURT JUDGE M. LISIMBA R. M. C. KAOMA -J5- ACTG SUPREME COURT JUDGE ACTG SUPREME COURT JUDGE