Zulu v People (Application 25 of 1991) [1991] ZMSC 27 (21 November 1991)

IN THE SUPREME COURT OF ZAMBIA Application no. 25 of 1991 HOLDEN AT LUSAKA (Criminal jurisdiction) SEBASTIAN SAIZI ZULU Applicant -v- THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Sakaia, J. S. and Challa, J. S. On 19th September and 21st November, 1991 R. Ngenda, of Richard Ngenda and Associates, for the applicant E. N. Chambwa, Senior State Advocate, for the respondent RULING Ngulube, D. C. J. delivered the judgment of the court Cases referred to:- 1) Sekele -v- The People SCZ Judgment No.4 of 1990 2) Kambarage Kaunda -v- The People SCZ Judgment no. 4 of1991 3) People -v- Sikatana (1982) ZR 155 4) Miyanda -v- High Court (1984) ZR 62 -- - t • : Ar • • The history of this application can be stated quite shortly and in this respect it is unnecessary to touch upon any issues that are likely to arise in the substantive appeals which we understand will be before the court in the near future or which will already have come up when this ruling is delivered. The"applicant, who is an advocate, faced summary criminal contempt proceedings before a High Court Judge (hereafter called the substantive case) for making or repeating a certain allegation against the judge. He was committed to prison for a contempt of refusing to testify in those proceedings when called upon to do so (hereafter called the subsidiary case) He lodged an appeal to this court in the subsidiary case and was granted bail pending appeal by a single judge of the court. On the resumption of the hearing of the substantive case, the learned trial judge accepted a submission that an accused could not be compelled to testify whereupon he revoked the finding and committal for contempt 2/........ .on the 2 - on the subsidiary case. However, he remanded the applicant in custody pending hearing of the substantive case* To complete the narrative, the applicant was subsequently sentenced and committed to prison on the substantive case and he was granted ball pending appeal by a single judge of this court. ■ ■ 0. ■ ■ ■ ■ ■'■■"- When the committal was revoked on the subsidiary case but the applicant remanded pending the hearing of the substantive case he applied to a single judge for bail which application was rejected at chambers without hearing the parties on the ground that there was no Jurisdiction to grant bail on an interlocutory application during a trial before the High Court. The learned single judge cited Sekele -v» The People (1) and Kambarage Kaunda -v- The People (2). In Sekele, we revfewed our jurisdiction in matters of bail pending trial and for the reasons which we gave held that there was no such jurisdiction In this court and that we could only entertain bail applications by appellants to this court under Sections 12 or 14 of Cap 52. In the Kaunda case, we held for the reasons there discussed that we could not entertain interlocutory appeals in an ongoing criminal trial. ‘ • The summons before the single judge purported to be a summons for bail pending appeal in the subsidiary case but the supporting affidavit made it plain that the complaint related to ■ *'t the applicant's remand pending trial in the substantive case. Even the reference of that summons to the court wrongly.purports to be an appeal against the decision of the single judge. Be that as it may, we heard Mr. Ngenda who argued that the cases relied upon by the learned single judge were distinguishable in that they were governed by Cap. 52 whereas Section 5 of the Contempt of Court (Mise Provisions) Act, Cap 53, gave a contemnor the right to appeal against any order or decision of a court exercising jurisdiction to punish for contempt. Section 5 of Cap. 53 reads: ■ ■ ' • '' < ' ■ ■ ■ . “5. (1) Subject to the provisions of this section, an appeal shall He under the section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision, the provisions of this section shall have effect in substitution for any other written law relating to appeals in civil or criminal proceedings. 3/....; (2) An (2) An appeal under this section shall lie in any case - 3 - at the instance of the person against whom the order or decision has been made and, in the case of an applicant for committal or attachment, at the instance of the applicant; and the appeal shall lie: — a) from the order or decision of any subordinate court, to the High Court; b) from an order or decision of the High Court, to the court of appeal. (3) The court to which an appeal is brought under this section may exercise any of the powers conferred upon it ijirelation to the hearing and determining of appeals generally by the Criminal Procedure Code or the Court of Appeal for Zambia Act, and without prejudice to the inherent powers of any court referred to in subsection (2), provision may be made by the rules of court for authorising the release on bail of an applicant under this section. (4) . Without prejudice to the provisions of this Act, an ■ •. • appeal under this section shall be lodged and prosecuted in compliance with the provisions of the Criminal Procedure Code or the Court of Appeal for Zambia Act as appropriate. (5) In this section, Mcourt“ includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of the court in the exercise of jurisdiction to punish for contempt of court includes references to an order or decision of the Hight Court or a substantive court under any enactment enabling that court to deal with an offence as if it were contempt of court. (6) This section shall not apply to a conviction or sentence in respect of which an appeal lies under the Criminal Procedure Code." 4/.............. Mr. Ngenda Mr. Ngenda argued that, unlike the provisions of Cap. 52 which talked • of an appeal after conviction. Section 5 of Cap, 53 talked of an appeal against any order or decision and this in substitution of any other provisions in other laws. It was his submission that this section meant that an accused has a right to lodge an inter­ locutory appeal in matters of contempt as opposed to an ordinary right of appeal. In this submission, Mr. Ngenda was in some difficulty, because the only interlocutory appeal possible related to the remanding of the applicant in custody pending the then ongoing trial and Sekele was against him. He sought to relate the interlocutory appeal to the subsdiary case but then there was nothing interlocutory about the subsidiary case which was already completed and in which the applicant was free to pursue an independent appeal under Cap 52 in the ordinary manner, despite the revocation of the conviction and committal, if he so wished. As we see it, the real problem concerned Mr. Ngenda's ? understanding of Section 5 of Cap. 53. The whole of Cap 53 is virtually a verbatim copy of certain sections in the Administration of Justice Act, 1960, of England. Up until the passage of this legislation, the right of appeal was one of the most important distinctions between criminal and civil contempts. As the authors of Halsbury's Laws of England observe, in vol. 9, 4th Edition at para. 107, there was formerly no jurisdiction to entertain an appeal from an order of attachment or committal for criminal contempt. All that the Act of 1960 and our own Cap. 53 did in this respect was to confer a general right of appeal even in criminal contempt. In truth, there is nothing ' in Cap. 53 to support Mr. Ngenda's contention in favoyr of a departure from the prevailing procedural law so as to enable interlocutory appeals while a trial for criminal contempt is in progress in the High Court Mr. Ngenda strongly urged that we review our decision in the Kaunda case and assume a supervisory jurisdiction in our discretion so as to be able to put matters right where the High Court can be shown to be deliberately abusing the law to the serious detriment of an individual's rights. He argued that such supervisory powers can be assumed and reserved to this court from the absence of any express prohibition against such a course in Section 12 of Cap 52. Without pronouncing on the alleged abuse, we are here concerned with the proposition that this court could assume a supervisory jurisdiction .over the High court similar to that which the High Court undoubtedly has over the lower courts. In The People ■v- Sikatana (3) > : ' c 5/ cthil. I! this court held that there was no jurisdiction to entertain a reference from the High Court, despite a specific provision in Cap 52, because there was no complementary provision enabling the High Court itself to make such a reference. For the reasons given in that case, we did not accede to a request to exercise supervisory jurisdiction even though there was, unlike here, some arguable basis to assume jurisdiction. Again in Miyanda -v- High Court (4), a single judge of this court considered at some length similar arguments concerning jurisdiction and came to the conclusion that ours was basically an appellate court and that we could not assume supervisory jurisdiction so as to put right matters which were still before the High Court. The cumulative effect of all these authorities, including those cited by the single judge in this case, is that it would not be competent for this court to Intervene on the basis>of an assumed jurisdiction in order to supervise the High Court in a matter not yet properly before this court. We should make it clear that, in this discussion, we have not been considering jurisdiction in the sense of an individual's right to relief, which is a matter of substantive law, but the procedure by which such relief can be obtained, which is a matter of adjective or procedural law. As a matter of.the latter, an individual in an ongoing criminal trial before the High Court will find that there is no jurisdiction in this court, at his request or that of the High Court even, to intervene even if serious irregularities or injustices were demonstrated to be taking place in the trial. “ . The final Issue argued by Mr. Ngenda centred around a submission that the learned trial judge had no power to review his own decision when he revoked the committal and finding on the subsidiary case which had the effect of nullifying the basis for the ball granted by a single judge pending appeal in the subsidiary case. Mr. Ngenda was unable to cite any authority for this submission. As we see it, the question 1$ whether the learned trial judge was functus officio in the subsidiary case* Ne do not see how the learned trial judge can be said to have discharged his functions in the case so as to be precluded from rectifying an error when the hearing was still in progress and when the order to commit an accused for refusal to testify was incompetent at law and, therefore, a nullity. ’ ■ ’. • . • • £ . : ■ -r. ■■ ; The learned single judge was not wrong when he determined that the application before him was In substance one for bail pending trial and when he rejected it. We too refuse this application. 5/........... M. M. S. W. Ngulube /- $ M. MoS. W. Ngulube DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE M. S. Chai la SUPREME COU«T JUDGE \