LATEST UPDATE: NDOLA HIGH COURT STAYS THE FAZ APPLICATION ON JURISDICTION TO HEAR THIS CASE. IT HASN’T THROWN IT OUT
The cow-horn formation continues. While the minister is talking reconciliation and cases being withdrawn, FAZ delegates to the AGM are refusing to be drawn into meetings with a banned official saying its outside FAZ Statutes. Meanwhile, the courts are also handling matters related to these issues.
In the Ndola High Court this afternoon, there has been a development with a ruling being made by Judge Mary Mulanda. Whereas many people on social media have been reporting that the application by FAZ to stop the court process and refer the same to arbitration as provided for under FAZ Statutes has been thrown out, the high court hasn’t thrown out the application. Instead, it has stayed the application and all proceedings or more plainly it has stopped the whole court case pending a determination of a preliminary issue by the Constitutional Court. The preliminary is an application for the ConCourt to determine the jurisdiction of the High Court in determining this case instead of referring it to arbitration as provided for the FAZ Statutes and as prayed by FAZ in the Ndola High Court.
On 11th March 2020, the Ndola High Court gave Damiano Mutale and Patson Lusaka an ExParte Order stopping FAZ from proceedings with the FAZ Elections for 2020, originally scheduled for 28th March 2020, pending the determination of a number of issues raised including the legitimacy of the Ethics Committee, the legitimacy of the FAZ ExComm, failure by the FAZ Electoral Committee to follow FAZ Statutes, etc.
On the 1st of April, 2020, FAZ filed an application for an Order that the legal proceedings in this matter be stayed and the matter is referred to arbitration on the ground that all the disputes in this matter were subject to an arbitration agreement under Section 10 of the Arbitration Act, No. 19 of 2000 and pursuant to Rule 4 of the Arbitration (Court Proceedings) Rules, 2001.
On the 6th of April, 2020, lawyers for Damiano and Lusaka applied for leave to appeal to the Constitutional Court, against the High Court’s Ruling dated 31st March, 2020. The Judge granted Damiano such leave on the same day. The grounds of appeal suggest that the Football Association of Zambia (FAZ) Arbitration Clause and the challenge of the jurisdiction of the High Court in light of the FAZ Arbitration Clause both raise constitutional issues that can only be determined by the Constitutional Court before the judge can decide (as she did on 30th March 2020) that she had jurisdiction to preside over the matter.
On the 9th of April 2020, Damiano raised an objection on a point of law saying the Application by FAZ to stay legal proceedings and to refer the matter to arbitration cannot be heard and determined before the hearing and determination of the Damiano’s Appeal currently before the Constitutional Court on the issue of the Arbitration Clause as well as the jurisdiction of this Court. He also argued that the application filed into the Ndola High Court on the 1st April 2020 and served on Damiano on the 3rd Day of April 2020 wasn’t supposed to be heard on the 9th day of April 2020 in light of Rule 4(3) of the Arbitration (Court Proceedings) Rules 2001. Damiano also raised other issues including failure by FAZ to mention the arbitrator contrary to court proceedings and also improper swearing before the Commissioner for Oaths who was sitting at Ndola while the Deponent was at Kitwe contrary to order 5 Rule 20(g) of the High Court Rules, Chapter 27 of the Laws of Zambia and section 6 of the Commissioner for oaths Act Chapter 33 of the Laws of Zambia.
The hearing of the said application was initially scheduled for the 19th of March, 2020, but could not proceed, because of the preliminary issues that were raised in this matter. The judge rescheduled the said hearing to the 17th of April 2020. A day before, on the 16th of April, 2020, Damiano, in addition to the preliminary issues filed on the 8th of April, 2020, stated above, filed a Further Notice of Motion to Raise Issue in Limine Pursuant to Order 14A of the Supreme Court Rules of England (White Book) 1999 Edition, as read together with Order 2 Rule 2 of the Supreme Court Rules of England (White Book) 1999 Edition as reading together with Order 5 Rule 20(g) of the High Court Rules Chapter 27 of the Laws of Zambia and Section 6 of the Commissioners for Oaths Act Chapter 33 of the Laws of Zambia, in which the issue for determination was as follows: Whether or not the Ndola High Court should proceed to hear any other application in this matter when the question of jurisdiction of the Court to hear and determine this matter in light of the FAZ Arbitration Clause was still under consideration before the Constitutional Court of Zambia.
RULING OR JUDGEMENT
The Judge decided to look at only one issue which was whether or not the FAZ’s Application to stay legal proceedings and to refer the matter to arbitration can be heard and determined before the hearing and determination of the Damiano’s Appeal currently before the Constitutional Court on the issue of the Arbitration Clause as well as the jurisdiction of this Court.
The judge agreed with Damiano that when jurisdictional issues in relation to a court are raised, everything comes to a stand until the issue of jurisdiction is properly resolved.
“That being the case, it is only proper that, since the Plaintiffs have appealed to the Constitutional Court asking that Court to pronounce itself on the issue of the jurisdiction of the High Court as it relates to the FAZ Arbitration Clause which is in the FAZ Constitution, the Constitutional Court be allowed to do so. … In view of the above, I order that the Defendants’ application to stay and refer the matter to arbitration cannot be heard before the hearing and determination of the appeal against my ruling of 31st March 2020, by the Constitutional Court, filed into the said Court by the Plaintiffs. I further order that the application to discharge the Ex-parte Order dated 11th March 2020, granted to the Plaintiffs, staying the FAZ Electoral Process and Elections cannot be heard, and no further proceedings in this matter shall be entertained before the appeal in issue is heard by the Constitutional Court. I order no costs.”
Very little has changed from where we were in March. There is nothing to be excited about here. The only thing is that the date for the final judgment has been delayed by this appeal to the ConCourt.
The raising of the preliminary by Damiano’s lawyer was a quick one which caught the FAZ lawyers off guard and it favors the other lawyers’ clients as it buys time for their other processes to be concluded ahead of FAZ elections as well as stays the FAZ elections by way of local courts – whether one believes the courts have jurisdiction or not.
If I was the FAZ lawyer, I would have appealed to the Court of Appeal the moment their first application to stay the Ex-Parte Order was not granted and before Damiano’s lawyers pulled this quick on to the Court Court.
With courts not moving fast due to COVID-19 restrictions, there is a likelihood that this preliminary may take long to dispose of before the Ndola High Court can then sit down and decide on the FAZ application.
This also means that the Andrew Kamanga’s FAZ ExComm won’t face any court challenges to their mandate, legitimacy, and powers as the case has been halted. They can then proceed to operate freely knowing that they have the support of FIFA, councilors (as the six provincial chairmen showed this week) and the FAZ Statutes when reading in Article 79 of the FAZ Constitution of 2019 as amended in 2019 and Article 5 of the Transitory Provisions of the same constitution.
The case before Magistrate Lameck Banda, which had issued bench warrants against Andrew Kamanga and 4 others was stayed by the Ndola High Court and so can’t also proceed.
So expect nothing from the courts on this under the ConCourt rules on constitutional provisions.
Lastly, if there was no COVID-19 and the electoral process had not been postponed by FAZ ExComm, this judgment today may have triggered discussions of a FIFA ban in Zurich. Courts, being the judiciary, are viewed as government wings by FIFA and their powers and decisions are viewed as interference in national associations.
In the end, we all know what will happen. FIFA will guard and most likely all court decisions will allow the due process based on FAZ Statutes to conclude. Until then let’s wait and see. And let’s all respect the courts of the land. You never know. We may have case law after all.
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