Steven Katuka (Suing as Secretary General of the United Party for National Development) and Anor v Attorney General and Anor (2016/CC/0010) [2019] ZMCC 28 (12 September 2019)

SELECTED RULING NO. 25 OF 2019 (789) IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA2016/CC/0011 (Constitutional Jurisdiction) 2016/CC/0010 BETWEEN: STEVEN KATUKA ( Suing as Secretary General of the United Party for National Development) 2ND PETITIONER LAW ASSOCIATION OF ZAM IA REPue1.1c OF ZAMn •4. 3RD PETITIONER AND THE ATTORNEY GENERAL CONSTITUTIONAL COU~ T t.. , .!..". MBIA ' i;d --~7 ' 1 2 SEP 2019 t !ESPONDENT NGOSA SIMBYAKULA AND 3 OTHERS 4TH 64TH ~ E G ISTR Y 1 P O !iOX 50067, LU SA i8'E S . ON DENTS Coram: Chibomba, PC, Sitali, Mulenga, Mulembe and Munalula, JJC On 29th June, 2018 and 12th September, 2019. For the 2nd Petitioner: No appearance For the 3 rd Petitioner: Mr. J . Chimankata of Simeza Sangwa& Associates. For the 1s t Respondent: Mr. L. Kalaluka, SC, Attorney General. For the 4th to 64th Mr. 8 . Mutale, SC, of Ellis & Company. Ms. A. Chisanga, State Advocate. Respondents: Mr. M. Lungu of Lungu Simwanza & Company. Ms. C. Bwalya, OH Kemp & Company. RULING Mulembe, JC, delivered the Ruling of the Court. R1 (790) Cases r eferred to: 1. Taylor v Lawrence [2002) 2 All E. R. 353 2. Chibote Limited and others v Meridien BIAO Bank (Zambia) Limited (in liquidation) (2003) Z. R. 76 3. Finsbury Investments Limited and others v Ventriglia Appeal No.17 of 2013 4. S. A. Maritime et Commerci ale of Geneva v Anglo Iranian Oi l Co. Limited [1954) 1 All E. R. 529 5. Drake & Gorham (Zambia) Limited v Energo Project Limited (1980) Z. R. 74 (reprint) 6. Kearney and Company Limited v Taw International (1978) Z. R. 468 (repri nt) 7. Ruth Kumbi v Robinson Zulu (2009) Z. R. 183 8. Henry Kapoko v The People Selected Judgment No. 43 of 2016 9. Leopold Walford Zambia Limited v Unifred (1985) Z . R. 203 10. Owners of the Motor Vessel v Caltex Oil Kenya Limited [1989) KLR 1 11 . Connelly v Director of Public Prosecutions1 1 [1964) 2 All E. R. 401 12. Bremer Vulcan Schiffbauund Maschinenfabrik v South India Shipping Corp. Limited [1981) 1 All E. R. 289 Legislation referred to: 1. The Constitutional Court Act No. 8 of 2016 2. The Constitutional Court Rules Statutory Instrument No. 37 of 2016 3. The Constitution of Zambia (Amendment) Act. No. 2 of 2016 4. The English Law (Extent of Application) Act No. 14 of 2002 5. The Interpretation and General Provis ions Act Chapter 2 of the Laws of Zambia 6. The High Court (Amendment) Act No. 7 of 2011 7. The Court of Appeal Act No. 7 of 2016 8. The Supreme Court (Amendment) Act No. 8 of 2011 Other works referred to: 1. Stroud's Judicial Dictionary of Words and Phrases, 9 th edition, Sweet & Maxwell 2. Blacks Law Dictionary, Deluxe Tenth Edition, Thomson Reuters This Ruling relates to the 3 rd Petitioner's Notice of Motion to raise preliminary issues made pursuant to the inherent jurisdiction of this Court filed on 12 thJune, 2018. The brief b ack ground is that on 28thMar ch , 2018 the 4 th to 64th Respondents filed a Notice of Motion to set asid e or r ever se parts of the Judgment of 8 th August, 20 16 pursuant to the inherent jurisdiction of this Court . On 12 thJune, 2018 the 3 rd R2 Petitioner filed its Notice of Motion to raise p reliminary issues on the 4 th to 64 th Respondents' Notice of Motion aforementioned. The 3 rd Petitioner's Notice of Motion raised two grounds as (791) follows : (a) The Notice of Motion to set aside parts of the Judgment of this Court is improperly before th e Court; and (b) The Respondents' application does not disclose any grounds to warrant reopening the final decision of this Court. When the matter came u p for hearing of the 3 rd Petitioner 's application to r a ise preliminary issues, learned counsel for the 4 th to 64t h Respondents, Mr. Mutale, SC, sought guidance from th e Court as regards the preliminary issues raised by the 3 rd Petitioner. State Counsel Mu tale submitted that the second issue delved into the merits of the m a in Motion. We p roceeded to hear submissions from all the p~ties. In our Ruling of 28thJune, 2018 we adjudged that the second preliminary issue delved into the substantive arguments of the main Motion a n d ordered that the 3 rd Petitioner should, at that stage, only a rgue the first issue and not the second issue. This Ruling, therefore, relates only to the first issue raised in the 3 rd Petitioner's Notice of Motion filed on 12 th J u ne, 2018 on the question whether the Notice of Motion to set aside par ts of the Judgment of this Court is properly b efore the Court. R3 (792) In the skeleton arguments filed in support of its Notice of Motion, the 3 rd Petitioner asserted that before a party can move this Court to set aside or reverse a part of its final judgment, the applicant must first seek leave of the Court to reopen the case. The 3 rd Petitioner submitted that there was no Act or rule that provides for setting asid e or reversing a final judgment of this Court and that, thus, the practice and procedure to be adopted should be as nearly as may be in accordance with the law and practice for the time be ing observed in the Court of Appeal in England, citing Order 1 rule 1 (2) of the Constitutional Court Rules ("the Court's Rules")for authority. Calling in aid the English case of Taylor v Lawrence, 1 the 3 rd Petitioner argued that it was clear that the practice adopted by the Court of Appeal in England as regards reopening of final decisions is that the party seeking to reopen a final decision of the Court must apply for permission to do so and that once the permission is granted , the party can be heard on the substantive applica tion. The 3 rd Petitioner contended that there could b e no hearing where the Court had not granted permission to reopen the matter and, as su ch , the Notice of Motion in question was incompetently before this Court and s hould be dismissed. R4 I (793) The 3 rd Petitioner submitted that in the instant case the Notice of Motion filed by the 4 th to 64th Res pondents on 28 th March, 2018 was for an order that the decision of this Court of 8 th August, 2016 b e set a side or reversed to the extent that it ordered that the 4 th to 64 th Respondents do refund to the State all salaries and allowances which they had been paid from 12th May, 2016 after the dissolution of Parliament. It was the 3rd Petitioner's contention that it was clear from the Notice of Motion that the 4 th to 64th Respondents had not s ought the permission of this Court to reopen the case but had proceede d as though this Court had granted p e rmission to reopen its final decision ; tha t it was against the practice adopted in the Court of Appeal 1n England which this Court is mandate d to follow pursuant to Order I rule 1 (2) of the Court's Rules. The 3 rd Petitioner discounte d as untenable the 4 th to 64th Respondents' argum ent that this Court should a dopt the practice adopted in the Supreme Court of Zambia on the a uthority of Chibote Limited and others v Meridien BIAO Bank (Zambia) Limited (in liquidation)2 and Finsbury Investments Limited and Others v Ventriglia,3 as this Court can only adopt the p ractice RS being observed in the Court of Appeal in England in accordance with Order I rule 1(2) of the Court's Rules. (794) To a u gment, learne d counsel Mr. Chimankata r elie d on the 3 rd Petition e r 's s ke leton arguments filed on 12 thJune, 2018 . In referen ce to the 4 t h to 64th Res pondents' s keleton argum ents filed on 19th June, 2018 in which it was s ubmitted that the 3 rd Petitioner overlooked the cut-off date of 3 1st December, 1999 counse l contended that th e 3 rd Petitioner's a pplication was premised on Order I rule 1 (2) of the Rules and not Order I rule 1(1) as s tated by t h e 4 th to 64 th Respondents. Mr. Chimank ata a rgued that the Constitutional Court Act ("the Act") and the Court's Rules do not make provision for reopening a final d ecision of this Court. And making reference to Order I rule 1 ( 1), counsel's position was that even in the Supreme Court Practice 1999 there was no rule which provided for the reope ning of a final decision of the Court which h as been p erfected . Mr. Chimankata submitte d that the re was no cut-off d ate in Order I rule 1 (2), which requires this Court to adopt as nearly as mayb e the law and practice for the time being observed in the Court of Appeal in England. Counsel opined tha t 'for the time b eing' m eant for the moment a nd contende d that the law and R6 (795) practice for the time being in the Court of Appeal in England was as stated in Taylor v Lawrence .1 We were u rged to a dopt the law and practice of the Court of Appeal in England as exp la ined in the Taylor1 case where that court was clear tha t it had juris diction to reopen its own final decision. To buttress his point, Mr. Chima nkata quoted Woolf, CJ, who stated that: Accordingly a pa rty seeking to reopen a decision of this court, wheth er refu sing pe rmission to a ppea l or dismissing a substa ntive a ppea l, must apply in writing for permi ssion to do so. The application will the n be consid ered on paper and only allowed to proceed if after the paper application is considered this court so directs. Counsel asserted that it was clear from the Notice of Motion filed by the 4 th to 64t h Respondents and the affidavit in support that they did not seek the permiss ion of this Court to reopen its final d ecision; tha t by 10th August, 2016 this Court was func tus officio as regards this matter a n d to seek to r eopen the case with a view to setting aside parts of it is not the jurisdiction this Court could be invited to exercise through applications made in a casual and ordinary manner. In countering the 4 th to 64 th Res pondents ' argument that Taylor v Lawrence1 was d ecided after 1999 and is thus not applicable, Mr. Chimankata stressed the point that the court in that case was not deciding or a djudicating on any particular rule R7 • (796) and opined th at the question whether or not it came before or after 1999 was incon sequential. Calling 1n a id Lord Woolfs sentiments in Taylor v Lawrence, 1 where h e stated that there needed to be a procedure which would ensure that proceedings would only reopen wh en there was a real requirem ent , we were urged to pronounce ourselves on that procedure as, if there was no such procedure, counsel argued, there would b e total chaos. We were further r eferred to the following words of Lord Woolf in Taylor v Lawrence:1 The ability to reopen proceedings after th e ordinary appeal process has been concluded can also create injustice. And that: The court should exercise strong control over any such applic ation, so as to protect those who a re entitled reasonably to be lieve that the litigation is a lready at an end . It wa s counsel's contention that the public a lready knew that litigation in this matter cam e to an end in August 20 16 and that this Court must exercise s trong contr ol over such proceedings. He submitted that if this Court did not a dopt the practice and procedure in Taylor v Lawrence ,1 there would be n o end to litigation; tha t it would mean that every decision that this Court has p assed since 2016 would b e subject to reopening without leave of the Court to do so. It was counsel's prayer that R8 (797) the Court finds tha t the Notice of Motion to set aside parts of th e J u dgm en t of the Court was improperly before this Cou r t as th e Resp ondents did n ot seek th e p erm ission of the Court to reopen its final d ecision. Mr. Chima nkata s ubmitted tha t in te rms of pa ragr aph 59 / 1 / 151 of the Suprem e Cou rt Practice, 1999 a judgm e nt becomes final or is perfected when it is p a s sed a nd en tered. In opposing the Notice of Motion to raise preliminary issu es, the 4 th to 64th Responde n ts discounted as improp e r the 3 r d Petitioner 's argum ent th at the Respondents' a pplication wa s imprope rly before this Cou rt for n ot following the p ractice and proced u re of the Court of Appeal in England , purs u a nt to Orde r rule 1 (2) of the Rules, r equiring a p a rty to firs t s eek p ermission before a final d ecis ion can be r eopen ed a s decided in Taylor v Lawrence. 1 It was conte nde d th a t the 3 rd Petitioner eithe r overlooked or d elibe ra tely ign ored tha t the r equire m e nt in Taylor v Law rence 1 did not form part of the practice a n d procedure of the Court of Appeal in England a pplicable to this Cou r t as it was practice and procedure tha t wa s intr oduced a fter th e cut-off d ate of 3 l stDecember , 1999. Furthe r , th a t section 9 of the Act , r ead togethe r with Order I rule 1 ( 1), provides tha t the jurisdiction R9 vested in this Court, as regards practice and procedure, 1s provided by the Act and the Rules and, in defa ult thereof 1n substantial conformity with the Supreme Court Practice, 1999. (798) Th e 3 rd to 64th Res pondents a rgued that the cut-off date was not mere surplusage, citing S. A. Maritime et Commerciale of Geneva v Anglo Iranian Oil Co. Limited 4 as applied in Drake & Gorham (Zambia) Limited v Energo Project Limited. 5 It was contended that the cut-off date is of immense s ignificance as far as civil practice a nd procedure in this country is con cerned , as also shown in section 10 of the High Court Act as amended by Act No. 7 of 20 11 ; section 8 of the Court of Appeal Act, 2016 a nd section 8 of the Supreme Court Act as a m ende d by Act No. 8 of 2011. The case of Kearney and Company Limited v Taw lnternational6 w as cite d whe re in the Supreme Court said: English authorities, and particularly those of the House of Lords, are of course of great weight and assistance in Zambia in areas in which they are on point; but before relying on English cases it is necessary to ensure that the legislation which was under review in those cases corresponds to, or is relevant to, our legislation . It was submitted that th e White Book (1 999 E dition), w hich 1s applicable to Zambia, under p aragraph 59 / 1 / 151 allows the Court of Appeal in England to alter its d ecision before it is R10 perfected. That the practice in Taylor v Lawrence 1 was introduced in 2002 and thus is not part of our procedural law. (799) To augment, learned counsel, Mr. Bwalya, submitted that the main question for the Court's consideration is whether permission as formulated in Taylor v Lawrence 1 is a requirement for the 4 t h to 64t h Respondents' Notice of Motion. Mr. Bwalya asserted that the Respondents' position was that there was no requirement for leave primarily because the procedure for permission was only introduced in 2002 and subsequently incorporated 1n the Civil Procedure Rules (Green Book) that replaced the Supreme Court Practice, 1999 in England. Mr. Bwalya submitted that importing that position to this Court would render Order I rule 1 ( 1) of the Rules meaningless and that the Green Book would have to be imported into the practice and procedure of this Court. He argued that as far as our legal system was concerned, it was intended to place a cap on what can be imported into civil court practice and procedure in Zambia, including before this Court. Counsel stressed that as far as practice and procedure is concerned, the cut-off date is 31 st December, 1999 unless this Court would be of the view that the Civil Procedure Rules of R11 (800) England which replaced the Supreme Court Practice, 1999 were a pplicable in this Court; th at the n eed for permission as laid out in Taylor v Lawrence 1 does not form part of our practice and procedure as it would render Order I rule 1 ( 1) m eaningless and mere surplusage. Mr. Bwalya further contended that if this Court were of the view that the practice a nd pr ocedure set out in Taylor v Lawrence 1 was d esirable and s hould be adopted, then the Chief Justice would have to invoke section 31 of the Act and issu e a practice direction th at would r egulate the practice and procedure of this Court. Counsel expressed doubt as to whether this Court would legislate on practice and procedure r equiring leave in this case and furth er apply it to the 4 th to 64 th Respondents , when the procedure was not available prior to filing their Notice of Motion. Mr. Bwalya further submitted tha t the 4 th to 64 th Respondents disagreed with the assertion by coun sel for the 3 rd Petitioner that this Court s hould restrict itself to the practice and procedure available in the Cou rt of Appeal in Engla nd, stating that the Court of Appeal in England is a n intermediate court and that the rules and practice of the Court of Appeal in Engla nd cannot just b e adopted religiously or without question. R12 He contended that this Court h as the discretion to discard procedure which is unique to England 's constitutiona l set up as far as their judiciary is concerned. (801) Mr. Bwalya's further s ubmission was to the effect that in Taylor v Lawrence 1 , relied on by the 3 rd Petitioner, p ermission was granted even though it had not been applied for prior to the h earing of the case and the substantive application was heard. That if this Court was of the view that p ermission is a threshold requirement, the n it should not prejudice the 4 t h to 64 th Respondents as their position in view of the cut-off d ate in Order I rule 1 ( 1) would only become unequivocal or clear after a d ecision of this Court is rendered and should b e a pplicable to future cases and not the instant case. Counsel submitted that the 4 th to 64th Respondents' prayer 1s that the preliminary application by the 3 rd Petitioner b e dismissed. In s upplementing, lea rned counsel, Mr. Lungu, submitted th at Taylor v Lawrence1 was , in his words , "a unique a nd curious case"; tha t in that case, a rule was promulgated and a pplied ex post facto, a practice, he contended, that is not known in R1 3 (802) Zambian jurisprudence on account that rules of court are set out in either practice directions or in rules of court m a d e and publis h ed by the Chief Justice. Mr. Lungu argued that Taylor v Lawrence1 would represent a da n gerous precedent to our jurisprudence and d emonstrated the dangers of wholesale importation of foreign law, citing the case of Ruth Kumbi v Robinson Zulu 7 for authority. Mr. Lungu further submitted that Order I rules 1(1) and 1(2) deal with the same circumstance, that is, what is to happen when there is a lacuna in the practice and procedure of this Court. Counsel argued that rule 1 ( 1) of Order I sets a cut-off date whilst rule 1(2) opens up what is provided under rule 1(1). It was his submission that the presumption of la w was that general stipulations do not derogate from specific stipulations. That under Order I rule 1(1) there is a specific stipulation that the cut-off date is 3 1 stDecember , 1999 while rule 1 (2) was couched in general terms and cannot derogate from the specific cut-off date . In the alternative, Mr. Lungu submitted that Order I rule 1 ( 1) specifically refers to the jurisdiction of the Court while rule 1 (2) does not. That so far as rules dealing with the jurisdiction of R1 4 (803) the Court were concerned, they are to be dealt with in accord ance with Order I rule 1(1) and, therefore, the cut-off date of 31 st December, 1999 applies. Mr. Lungu added that Parliament did not intend to provide for meaningless paragraphs when one regards Order I rule 1 ( 1) . In winding up his submission s, Mr. Lungu urged this Court to invoke Article 118(2)(e) of the Constitution as amended which enjoins this Court to administer justice without undue regard to technicalities, citing Henry Kapoko v The People8 for authority. Mr. Lungu contended that the rule in Taylor v Lawrence1 was a technicality and no particular content in respect to its compliance h a d been set out anywhere other than in the case itself and did not exist before it was pronounced. Counsel submitted that this being a Court of justice it could not adopt the manner of promulgating rules as set out in the Taylor1 case . Referring again to our decision in Henry Kapoko v The People,8 Mr. Lungu s ubmitted that Article l 18 (2)(e) is intended to avoid a manifest injustice by paying unjustifiable regard to a technicality. It was his contention that to set up a threshold on the requirement for leave without the comfort or notice which published rules afford would be a manifest injustice. That in the R15 (804) Taylor1 case the requirement for leave was treated as a curable defect and the court granted leave ex post facto. Counsel submitted that even if leave were a requirement, such requirement would only be regulatory and not fatal, citing Leopold Walford Zambia Limited v Unifred9 for authority. And Attorney General, Mr. Kalaluka, SC, submitted that Taylor v Lawrence 1 , which the 3 rd Petitioner was relying on, was clear that there is no right of appeal without permission except in a few special cases. Mr. Kalaluka, SC asserted that the instant case was an exception to the rule that there can be no right to appeal without permission. Referring to the position in Taylor v Lawrence 1 that an application for leave could be considered on paper and only allowed to proceed if the court so directed, Mr. Kalaluka, SC argued that the application to raise preliminary issues should fail because the requirement for leave was not absolute . Also, that undue regard or emphasis on paper applications offended Article 118(2)(e) of the Constitution as amended. In reply, Mr. Chimankata submitted that the 3 rd Petitioner was not seeking to implement the Civil Procedure Rules now obtaining in the Court of Appeal in England as suggested by R16 I • (805) learned counsel Mr. Bwalya when he argued that the requirement for leave was only introduced in 2002 and subsequently incorporated in the Civil Procedure Rules which replaced the Supreme Court Practice 1999. Further, that Order I rule 1(2) was clear about invoking the practice that was promulgated by Lord Woolf in T aylor v Lawrence1; that this Court would not be making any rule or issuing any practice direction but would simply be adopting the practice as manda ted by its own rules. Mr. Chimankata further submitted that the status of the Court of Appeal in England as an intermediary court as opposed to this Court which is an apex court did not matter. He argued that Order I required that in the event of a lacuna, this Court should adopt the practice and procedure obtaining in the Court of Appeal in England. That there was no rule that allows this Court to derogate from its own rules. Mr. Chimankata contended that the argument that the constitutional status of this Court prevented it from adopting the procedure in the Court of Appeal in England was not founded in law. In regard to the presumption of law that general stipulations do not derogate from specific stipulations, counsel argued that there was no general s tipulation under Order 1 rule 1 (2) of the R1 7 (806) Rules; that the rule emphasized the phrase "for the time being" as opposed to giving a cut-off date. And on the 4 th to 64th Respondents ' alternative argument that rules on jurisdiction were to be dealt with in accordance with Order I rule 1(1) , Mr. Chimankata's r esponse was that section 9 of the Act was clear on how the jurisdiction of this Court is to be exercised and Order I rule 1 (2) was part of the rules of the Court. On the Attorney General's submission that the requirement for leave is an exception, Mr. Chimankata countered that Lord Woolf in Taylor v Lawrence1 was categorical that the requirement for leave or permission was mandatory and an application could not be considered unless the Court so directed . He contended that the application before this Court was not one for leave to appeal but whether the final decision of this Court can be reopened, with a view to setting it aside, without the permission of this Court. In regard to Article 118(2)(e) of the Constitution, Mr. Chimankata argued that the provision was not one that cures all defects as it was never the intention of the Constitution to oust the obligation of litigants to comply with the rules of court. R18 (807) We are grateful to the parties for their written and oral arguments, and the authorities cited, to which we have given careful consideration. From our standpoint, the key issue that falls for our consideration in this application to raise preliminary issues is whether this Court, on the application of a party, has jurisdiction to reopen a matter on which it has rendered a final decision with a view to setting aside a part of its judgment, where such application to reopen the matter is made without leave or permission of the Court. The gist of the 3 rd Petitioner's contention is that a party seeking to reopen a final decision of the Court must apply for leave or permission to do so; th at where permission is granted, the party can then be heard on the substantive application. The 3 rd Petitioner argued that the 4 th to 64th Respondents did not apply for permission before filing their Notice of Motion to set aside or reverse parts of the Judgment of 8 thAugust, 2016 thus rendering their application incompetent before this Court. It was the 3 rd Petitioner's submission that since neither th e Act nor the Rules provide for the practice and procedure for reopening a judgment that has been perfected, resort must be had to the practice and procedure for the time b eing obtaining in the Court R19 (808) of Appeal in England. That pursuant to Order I rule 1 (2) of the Rules, the practice and procedure currently obtaining in the Court of Appeal in England is as was stated in the case of Taylor v Lawrence1 whereby a party. must apply for leave b efore making the application to reopen a final judgment. The counter argument from the 4 th to 64th Respondents was that in terms of Order I rule 1 ( 1) of the Rules, the principle in Taylor v Lawrence 1 was not applicable to the practice and procedure of this Court as it was decided after the cut-off date of 31 st December, 1999. It was contended that the cut-off date was significant as far as civil procedure and practice in this country is concerned. Thus, the 4 th to 64th Respondents' position was that the Notice of Motion to set aside or reverse parts of the Judgment of 8thAugust, 2016 was competently before this Court. The 3 rd Petitioner's Notice of Motion to raise preliminary issues questions whether this Court has jurisdiction to proceed to hear the 4 th to 64th Respondents' Notice of Motion, filed without leave of the Court, thus bringing into question its competency befor e this Court. It is trite that jurisdiction forms the basis upon which a court proceeds to consider or entertain matters that come before it. The learned authors of Stroud's R20 .. Judicial Dic tion ary of Word s a nd Phra s es , 9 th edition , de fine (809) "juris diction" a s follows: In its narrow a nd strict sense, the 'jurisdiction' of a validly constituted court connotes the limits which are imposed upon its power to hear a nd determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors. In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its 'jurisdiction' ... or as to the circumstances in which it will grant a particular kind of relief which it has 'jurisdiction ' .. . to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances .. . And a s it was aptly put in the Ke nyan case of Owners of the Motor Vessel v Caltex Oil Kenya Limited: 1 0 Jurisdiction is everything. Without it a court has no power to take one more step, where a court has no jurisdiction there would be no basis for a continuation of proceedings pending the evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. This Court's juris diction is couch ed in clea r terms in Article 128 (1) of the Cons titution a s amende d a nd a s r e ad w it h section 8 (1) of t he Constitution a l Cou rt Act ("the Act"). Article 128 (1 ) reads : Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear - (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to the violation or contravention of this Constitution; (c) a matter relating to the President, Vice President or an election of a President; (d) appeals relating to election of Members of Parliament and councillors; and R21 (e) whether or not a matter falls within the juri sdiction of the Constitutional Court. (our emphasis) And sec tion 8( 1) of the Act stipulates: (810) Subject to Articl e 28 of the Constitution, t he Court in exercise of its original and final jurisdiction may determine - (a) a matter relating to the interpretation of this Constitution; a matter relating to a violation or contravention of the Constitution; (b) a petition to challenge the nomination of a candidate for election as Republican President; (c) a matter relating to the Republican President, Vice President or an election of a Republican President; (d) appeals relating to election of Members of Parliament and councillors; (e) an application to review a decision of the Electoral Commission of Zambia in the delimitation of constituencies and wards; (f) a matter referred to the Court by the Republican President pursuant to the Constitution; and (g) whether or not a matter falls within the jurisdiction of the Court. (our emph asis) For r easons whic h we s ta te ahead in this Ru ling, we p lace emphasis on the Court's power to examine wh ether or n ot a m atter falls within its juris diction. Section 9 of t h e Act p rovides as follows : The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the rules. Fu rther, section 3 l(l)(a) of t h e Act states: The Chief Justice may, by statutory instrument, make rules for regulating - (a) the practice and procedure of the Court and with respect to appeals to , or reviews by, the Court; R22 (811) It is t rite that pursuant to section 3 1(1)(a) aforesaid, the Rules that regula te the practice and procedure of this Court are contained in Statutory Instrument No. 37 of 2016. Of particular significance to t he instant case, and as acknowledged by the parties in their arguments, where the Court's Rules do not provide for a particular point of p rocedure, Order I of the Court's Rules s tipulates the practice a nd procedure that is to be followed. Order I is cou ched in these te'rms : 1.(1) The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by th e Act and these Rul es, the Crimina l Procedure Code or a ny other written law, or by such rul es, orders or directions of the Court as may be made under the Act, the Crimin al Procedure Code or such written law, and in default thereof in substantial conformity with the Supreme Court Practice, 1999 White Book of En land and the law and licabl e in En land in the Court of A eal u to 31 st Dece mber 1999 . ractice a (2) Where the Act and these Rules do not make provision for any particular point of practice or procedure. the practice or procedure of the Court shall be as nearly as may be in accordance with the law and ractice for the time bein observed in the Court of A eal in Enqland.(emphasis add e d ) Th e two pos itions taken by the p arties in the instant case are in clear contrast of each other. As noted above, the 3 rd Petitioner anchored its a pplication on Order I rule 1 (2), that it is through that provision that the p rinciple in Taylor v Lawrence 1 was applicable to the practice and procedure of this Court, requiring permission of the Court before a party can apply for th e reopening of a final d ecis ion of the Court. On the other hand, the R23 (812) 4 thto 64th Responden ts conten ded that the crucia l provis ion was Order I rule 1 ( 1) which placed a cap on the a pplicable practice and procedure of the Court of Appeal in England, r enderin g the principle in Taylor v Lawrence1 inapplicable to the practice and procedure of this Court. The question then is, which is the applicable pos ition at law, p a rticu larly in the circumstances of this case? To answer that question, we find section 2 of the English Law (Extent of Application) Act as a m ended by Act No . 14 of 2002 h elpful. It reads: Subject to the provisions of the Constitution of Zambia and any othe r written law - (a) the common law; and (b) the doctrines of equity; and (c) the statutes which were in force in England on the 17thAugust, 1911 (being the commencement of the Northern Rhode sia Order in Council, 1911 ); and (d) any statutes of later date than that mentioned in paragraph I in in England , now applied to the Republic , or which force hereafter shall be applied thereto by any Act or otherwise; and (e) the Su reme Court Practice Rules of En land in force until 1999· Provided that the Civil Court Practice 1999 (The Green Book) of England or any oth er civil court practice rules issued after 1999 in England shall not apply to Zambia except in matrimonial causes: shall be in force in the Republic.(emph asis added) For pu rposes of the instant case our emphasis is on p aragraph (e) of the above provision. Section 2(e) unequivocally states that in terms of civil court p ractice, what is a pplicable in R24 .. (813) Zambia are the Supreme Court Practice Rules of England in force until 1999. The en actment expressly excludes from application in this country any other civil court practice rules promulgated in England after 1999. As submitted by counsel for the 4 th to 64 th Respondents, the 1999 cut-off date is reflected in other legislation a nd rules regula ting the civil practice and proce dure of our superior courts, tha t is, section 10 of the High Court (Amendment) Act No . 7 of 2011; section 8(2)(a) of the Court of Appeal Act No. 7 of 2016; a nd section 8(2)(b) of the Supreme Court (Amendment) Act No. 8 of 2011. In a ddition, section 10(2) of Act No . 7 of 2011 and section 8(3) of Act No. 8 of 2011 expressly exclude the applica tion of the Green Book, in line with section 2 of the English Law (Extent of Application) Act as amended by Act No. 14 of 2002. Neither section 9 of the Act nor Order I in the Court's Rules · expressly mentions the Civil Court Practice, 1999 (Gree n Book) of Engla nd or any civil practice rules issued 1n England a fter 31 s t December, 1999. That notwithstanding, section 2 of Act No . 14 of 2 002 a foresaid settles th e position of t h e Green Book in regar d to c ivil court prac tice in Zambia. R25 (814) In the substantive Notice of Motion, the 4 th to 64th Respondents seek to have this Court reopen or revisit parts of its Judgment of 8 thAugust, 2016. We h a ve noted, and as correctly observed by counsel for the 3 rd Petitioner, that the Act or the Court's Rules provide no clear guidance on the issue of the Court reopening or revisiting its final decision. Even the Supreme Court Rules 1999 provide no procedural comfort on this point. The Constitution as amended itself is silent on the matter. Notably, with respect to the Constitutional Court, there is no provision akin to Article 125(3) which provides that "the Supreme Court is bound by its decisions, except in the interest of justice and development of jurisprudence." The contention by the 3 rd Petitioner is that the 4 th to 64 th Respondents cannot move this Court to reopen its final decision without first seeking leave or permission of the Court to do so. The 4 th to 64 th Respondents argue that leave 1s not required as the Court's Rules do not provide for it. Their a ltern ative argument is that should the Court determine that leave is a threshold requirement to revisit a final decision of this Court, then the Court should regard the Respondents' omission to seek R26 leave of the Court as a technicality within the ambit of Article l 18(2)(e) of the Constitution as amended. (81 5) Earlier, we took the liberty to r eproduce 1n full the jurisdiction of this Court as provided in Article 128 ( 1) of the Constitution as read together with section 8(1) of the Act. We placed emphasis on the mandate of the Court to determine whether or not a matter falls within its jurisdiction. In our con s idered view, such determination includes whether or not, as in the instant case, proper procedure has been employed to move the Court. It is trite that normally relevant statutory provis ions or the Court's Rules will provide guidance on the applicable procedure. The question that confronts us in the instant case is that there is no statutory or procedural provision addressing the reopening of a final Judgment of this Court. Should then, this Court simply throw its hands up in the air on this point? We do not think so. Instead, we find solace in the sentiments of Lord Morris in Connelly v Director of Public Prosecutions11 wherein he said: The re can be no doubt th at a court which is endowed with particular jurisdiction has powers which a re necessary to enable it to act effe ctively within such jurisdiction. I would regard th em as pow ers which are inherent in its jurisdiction. A court must enjoy suc h pow ers in ord er to enforce its rules of practice and to suppress any a buses of R27 (816) its process and to defeat any attempted thwarting of its process. (our emphasis) Also, Lord Diplock in Bremer Vulcan v South India Shipping 12 , opined that a court has power to control its own procedure so as to prevent its being used to achieve injustice; tha t such power is inherent in its constitutional function as a court of justice. This Court's jurisdiction involves m atters relating to the supreme law of the land, the Constitution. Its decis ions in the exercise of that function are final. Th e authors of Blacks Law Dictionary, 10th edition, define 'finality' as "the quality of being complete and unchangeable. " Determining m atters to their finality involves, among other things, the Court's control of, and adheren ce to, established practice and procedural imperatives. It is our considered view that even in the absence of express procedural guidance this Court h as inherent authority to control its own p rocedure. We are persuaded by the views of Lord Morris in the Connelly11 case that such inherent power is to suppress any abuse of process. It is to e n sure efficacious discharge of the Court's constitutional mandate. In this regard, our firm view is that the efficacy of this Court's a djudicatory function would suffer defeat if its final decisions were open to casual ch allen ge in the form of applications for revisiting or setting aside whole or R28 parts of the said decisions at the instance of an aggrieved or (81 7) losing litigant. We agree with the 3 rd Petitioner that such an a pproach would bring disarray and uncertainty to the proper function ing of this Court. Our position is that revisiting this Court's final decision should be considered extraordinary and a party seeking to reopen a decision of this Court must make a formal application for leave to reopen a final judgment of this Court. We, accordingly, hold that the 4 th to 64 th Respondents required leave of this Court to file their Notice of Motion to set aside or reverse parts of the Judgment of 8 thAugust, 2016. That no such leave was sought and obtained renders the said Notice of Motion incompetent before this Court. Before we conclude, we wish to briefly comment on Mr. Lungu's alternative argument that this Court should invoke Article 118(2)(e) of the Constitution as amended. Our view, in the circumstances of this case, is tha t we find it unnecessary to address this aspect any further . We find tha t , on the basis of this Court's inherent power to control its own procedure, the 3 rd Petitioner's preliminary issu e is R29 \ .,, I - ' • (818) meritorious and it is accordingly upheld. Each party shall bear its own costs. H. Chibomba President Constitutional Court A. M. Sitali Constitutional Court Judge M. S. Mulenga Constitutional Court Judge ·· ·· ····· ··· ·~ · · · · · ······ E. Mulembe Constitutional Court Judge ........... ...... :~ ........ ......... . M. M. Munalula Constitutional Court Judge R30