THE Constitutional Court yesterday expressed displeasure at the laissez faire conduct of lawyers not promptly serving documents on each other in a matter in which PF’s Bowman Lusambo appealed the High Court’s decision to nullify his election as Kabushi MP.
The election appeal, which was scheduled to commence hearing on Tuesday, was adjourned to February 24, this year as a result of the same.
Ruling on an application by Kabushi UPND losing candidate Bernard Kanengo and the Electoral Commission of Zambia (ECZ) to file their heads of arguments out of time, Constitutional Court Judge Judy Mulongoti said the court was not happy with the laissez faire conduct of lawyers in delaying to serve documents on each other.
Judge Mulongoti who delivered the ruling on behalf of Constitutional Court judges, Palan Mulonda, Annie Sitali, Margaret Munalula and Judge president Hildah Chibomba, said the delay had resulted in an unnecessary adjournment of the appeal.
The court ordered that the heads of arguments should be filed and served within seven days and a reply if any, should be filed within five days of receipt.
“…and upon considering the submissions on the application for leave to file the first and second respondents’ heads of argument out of time, and taking into account the circumstances, and in the interest of justice, leave is granted as prayed. It is further ordered that the respondents’ heads of arguments be filed and served within seven days and reply if any, within five days of receipt. As regards the defects in the cross appeal, we opine that the same are not fatal but curable. We must also register our displeasure at counsels’ laissez faire conduct in not promptly serving on the other side, and the other side not making the necessary application and waiting on the hearing date, resulting in an unnecessary adjournment of this appeal. We therefore reluctantly adjourn the appeal to the 24th February, 2022,” the court ruled.
Lusaka High Court Judge Edward Musona sitting in Ndola nullified Lusambo’s election as Kabushi MP in November last year.
But being dissatisfied with the judgement, Lusambo appealed the decision to the Constitutional Court and cited UPND losing candidate Bernard Kanengo and the Electoral Commission of Zambia as first and second respondents, respectively.
“Take notice that Bowman Lusambo, being dissatisfied with the decision of the Honourable Justice E L Musona delivered in the High Court of Zambia at Ndola on 19 th November 2021, intends to appeal to the Constitutional Court against the whole Judgment of the court,” read the notice of appeal filed in the Constitutional Court.
Lusambo who advanced four grounds of appeal submitted that other grounds would follow upon perusal of the judgment.
“(i) The learned trial court erred in law and in fact when he held that the reported violence in four out of eight wards amounted to widespread violence while acknowledging that the first respondent was [or] may only have been present at two occasions when violence is alleged to have been perpetrated. (ii) The learned trial court erred in law and in fact when he shifted the burden of proof to the first respondent when he held that the failure to show that he attempted to stop the violence meant that he consented to it or acknowledged the violence,” read the memorandum of appeal filed by Lusambo’s lawyers from Makebi Zulu advocates.
“(iii) The trial court erred in law and in fact when he held that the majority of the voters were or may have been prevented from voting for a candidate of their choice. (iv) The learned trial judge erred in law and fact when he held that the clenched fist was used as a symbol for the Patriotic Front party.”