THE State has asked the Court of Appeal to stay hearing of NDC leader Chishimba Kambwili’s renewed application for leave to commence judicial review proceedings against principal resident magistrate David Simusamba’s refusal to recuse himself from presiding over his forgery case.
The State wants an order to stay the proceedings pending hearing of its application for leave to appeal to the Supreme Court, against the decision of the Court of Appeal to dismiss its preliminary issue on whether it (Court of Appeal) had jurisdiction to hear Kambwili’s renewed application.
Attorney General Likando Kalaluka has argued that this is because Kambwili’s notice for renewal of the application for leave to commence judicial review proceedings was filed out of time.
He added that he is of the considered view that as a direct consequence of that, the Court of Appeal did not have the jurisdiction to hear the application until the leave of court to file the same out of time was done.
This is according to the Attorney General’s skeleton arguments in support of notice of motion for leave to appeal to the Supreme Court and for an order to stay proceedings pending hearing of the application for leave to appeal.
However, earlier this week, Kambwili argued through his lawyer that the renewed application before the Court of Appeal was an urgent one in view of the fact that magistrate Simusamba was due to render a judgment in the forgery case in a few days’ time.
Kambwili’s notice of renewal of ex-parte application for leave to apply for judicial review was filed in the Court of Appeal on September 11, this year.
He cited Attorney General Likando Kalaluka as the respondent.
But the State raised a preliminary issue on whether the court had jurisdiction to hear the renewed application, but the court dismissed the said preliminary issue on September 25.
And when the matter came up on Tuesday before Court of Appeal deputy judge president Chalwe Mchenga and two other judges for hearing of the renewed application, Kambwili’s lawyer, Musa Mwenye, said he was ready to proceed.
He, however, said that the State had an application.
At this point, Solicitor General Abraham Mwansa said the State wanted to file an application for leave to appeal against the court’s decision to dismiss its preliminary issue to the Supreme Court.
He said the State needed more time to read the court ruling which dismissed its preliminary issue before filing a notice of appeal.
“We are of the view that while the State is pretty much ready to argue the substantive application before this court, the issue of jurisdiction ought to be tabled by way of an appeal,” Mwansa said.
But in response, Mwenye objected to the application and requested that the court proceeded to hear the matter that day.
He said the matter was an urgent one in view of the fact that magistrate Simusamba was scheduled to pass judgment in the forgery case in a few days’ time.
But Mwansa reiterated his prayer for an adjournment in order for the State to appreciate the ruling of the court.
“The issue of jurisdiction of the court is very cardinal and therefore ought to be determined. The State will only be in a position to present before this court a proper and befitting application for a notice of motion to appeal to the Supreme Court once there’s an appreciation of the ruling of this court. Both parties’ arguments are before this court and indeed we could have been ready to proceed. However, we are of the view that it will be prudent to proceed once the issue of jurisdiction is determined,” he said.
The court adjourned the matter to today, Friday, and directed the State to file their notice of motion for leave to appeal to the Supreme Court and to serve the same on Kambwili’s lawyers.
In its skeleton arguments in support of notice of motion for leave to appeal to the Supreme Court and for an order to stay proceedings pending hearing of the application for leave to appeal, the State urged the court to stay the proceedings until final determination of the appeal in the matter.
Kambwili had applied for leave to commence judicial review proceedings in the Lusaka High Court against magistrate Simusamba’s refusal to recuse himself from presiding over a case where he (Kambwili) is charged with forgery, uttering a false document and giving false information to a public officer before the Lusaka Magistrates’ Court.
He also wanted to challenge magistrate Simusamba’s decision to decline to refer the said forgery case to the High Court for constitutional determination of whether Kambwili’s right to a fair hearing before an independent and impartial tribunal has been or is likely to be infringed by the magistrate’s refusal to recuse himself.
Kambwili cited the Attorney General as respondent and ex-parte magistrate Simusamba.
However, High Court judge Mwila Chitabo dismissed Kambwili’s said application for leave to commence judicial review proceedings against magistrate Simusamba’s refusal to recuse himself from presiding over his forgery case.
Judge Chitabo said the ruling of magistrate Simusamba pertaining to the refusal to recuse himself was made within the magistrate’s judicial powers and discretion, adding that a challenge of such a decision was by way of appeal against the said ruling.
He added that this was, therefore, not a fit and proper case to grant Kambwili leave to commence judicial review proceedings.