062 6

IN THE HIGH COURT FOR ZAMBIA 2012/HP/0627

HOLDEN AT LUSAKA
[CiviL Jurisdiction]

BETWEEN:

Michael Chilufya Sata Plaintiff

Hakainde Hichilema 1st Defendant

Lloyd Himaambo (T/a Zambian Watchdog Newspapers) 2nd Defendant

Richard Sakala (T/a Daily Nation Newspapers) 3rd Defendant

CORAM: Honorable Mr. Justice Mubanga Kondolo, SC

FOR THE PETITIONER: Messrs Ellis & Company

FOR THE 1st RESPONDENT: Messrs Central Chambers & Messrs Muleza & Company

FOR THE 2nd RESPONDENT: Mr. M. Muchende - Dindi & Co.

RULING

LIST OF AUTHORITIES

LEGISLATION & PUBLICATIONS

1. The Constitution, Chapter 1, Laws of Zambia.

2. The High Court Act, Chapter 27, Laws Of Zambia.
3. The Supreme Court Practice (White Book), 1999 Edition.
4. Protection of Fundamental Rights Rules, Statutory Instrument No. 156 of 1969.
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CASES

1. Attorney General v Law Association of Zambia (2008) ZR 21.

2. New Plast Industries v Commissioner of Lands.
3. Stanley Mwambazi v Morester Farms Limited (1977) ZR, 108 (S.C.).
4. Michael Chilufya Sata v Robert Amsterdam & Richard Sakala (T/a Daily Nation
Newspapers) 2012/HP/0627 (Unreported).

This is a matter in which the President of the Republic of Zambia has commenced legal
proceedings against the Respondents and by an amended Writ of Summons he seeks the
following relief;

1. General and exemplary damages for defamation of character.

2. Interest thereon Interest thereon at current Commercial Bank lending

rates.

3. An injunctions restraining the Defendants and each of them, whether by

themselves, their servants, or agents or otherwise, from further

publishing or causing to be published the said or similar words

defamatory of the Plaintiff.

4. Such further or other relief as the the Court shall deem fit.

5. Costs.

This action was the subject of several interlocutory applications and several adjournments for
various reasons. For the sake of clarity, this ruling is with respect to the following applications
filed by the 1st Defendant;

1. "Summons To Stay Proceedings (Article 11 of The Constitution)" to stay

proceedings "until further order or until the Plaintiff waived his immunity in
 Page 3 of 11

respect of this action and any counter claim therein and that the costs of this
application be borne by the Plaintiff."

2. "Summons To Stay Proceedings Pending Application For Security For costs

(Order 23 RSC and Article 11 of the Constitution of Zambia)" to stay
proceedings, "until sufficient security for costs is provided by the Plaintiff in
the sum of One Billion Kwacha (K l,000,000,000) or such other sum as the
court may deem fit and that costs of this application be borne by the
Plaintiff".

3. "Summons To Set Aside Writ of Summons and statement of Claim for

Irregularity (Article 11 of The constitution of Zambia and Order 12 and 18
RSC)" for "the writ of summons and statement of claim herein to be set aside
for irregularity and that costs of this application be borne by the Plaintiff"

On account of the numerous adjournments in this matter, the court ordered that it would
deliver its ruling on the basis of written arguments by the parties who both obliged accordingly.
The Plaintiff filed its arguments in opposition to the applications before receiving the
Defendants arguments in support.

In opposing the Defendants applications, learned counsel for the Plaintiff argued that the
Applications in so far as they sought to enforce Article 11 of the Constitution1 ought to have
been brought by Petition and not by Summons as provided by Article 28 of the Constitution2 as
read together with Rule 2 of the Protection of Fundamental Rights Rules3. Reference was
made to the Supreme Court decision in Attorney General v Law Association of Zambia4 where
it was held as follows;

1Article 1, The Constitution, Chapter 1, Laws of Zambia

2 Article 28(1), The Constitution, Chapter 1, Laws of Zambia
3 Rule 2 of the Protection of Fundamental Rights Rules, Statutory Instrument No. 156 of 1969
4Attorney General v Law Association of Zambia (2008) ZR 21
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"By virtue of Rule 2 of the Protection of Fundamental Right Rules, 1969, an

application under Article 28(1) of the Constitution should be by way of
petition."

Counsel for the Plaintiff further argued that the notion that the president can use his immunity
to frustrate the proceedings is without merit because he is the Plaintiff and he bears the burden
of proof to succeed in his claim.

Learned counsel for the Plaintiff further submitted that Article 43 of the Constitution5 provides
the president with blanket immunity against civil and criminal proceedings and a counter claim
and/or purported waiver of the immunity conferred by Article 43(1) and (3) of the
Constitution6 would be ultra vires and therefore null and void for illegality. It was argued that
the language employed in Article 43 is mandatory and prohibitive as follows;

"Civil proceedings shall not be instituted or continued against the person

holding the office of President or performing the functions of that office in
respect of which relief is claimed against him in respect of anything done or
omitted to be done in his
private capacity."

With respect to the application to stay proceedings pending an application for costs, counsel for
the Plaintiff submitted that Order 23 RSC7 employed by the 1st Defendant did not cover the
circumstances in casu. They argued that the court could only consider such an application if the
circumstances were captured within paragraphs (a), (b), (c) and/or (d) of Order 23(1), RSC8. It
was further argued that the 1st Defendants affidavit in support of the application does not
disclose any circumstance to justify the making of an order in his favor.

5Article 4, The Constitution, Chapter 1, Laws of Zambia

6 Article 43(1) and (3), The Constitution, Chapter 1, Laws of Zambia
7 Order 23, The Supreme Court Practice (White Book), 1999 Edition
8 Order 23(1) (a), (b), (c) and/or (d), The Supreme Court Practice (White Book), 1999 Edition
 Page 5 of 11

It was further pointed out that the application was clearly one for the enforcement of Article 11
of the Constitution and was thereby incompetently before the court as it should have been
brought by petition and not by summons as had been done.

Learned Counsel for the 1st Defendants likewise, filed written argument which opened by laying
the foundation that the 1st Defendants applications were necessitated by the fact that the
Plaintiff is the Republican President and thus protected from civil suits. In the 1st Defendants
view, if the President sues a citizen and yet maintains his immunity, it provides the President
with an unfair and illegal disadvantage over the citizen.

They argued that the immunity will prevent the citizen from filing a counter claim against the
President thereby disadvantaging the citizen. Learned counsel for the 1st Defendant submitted
that the law provides that both parties must present their arguments equally and they cited the
courts role in ensuring this being as provided in section 9 (2) of the High Court Act9 (sic) which
states as follows;

"Subject to any express statutory provision to the contrary, all the Judges shall
have and may exercise, in all respects, equal power, authority and jurisdiction,
and, subject as aforesaid, any Judge may exercise all or any part of the
jurisdiction by this Act or otherwise vested in the Court, and, for such purpose,
shall be and form a Court."

They also argued that the 1st Defendants inability to file a counter claim would prevent all
triable issues being brought before the court and thereby offend the holding in the case of
Stanley Mwambazi v Morester Farms Limited10 in which it was held that, "It is the practice in
dealing with bona fide interlocutory applications for courts to allow all triable issues to come
to trial."

9 section 9 (2, High Court Act, Chapter 27, Laws Of Zambia

10 Stanley Mwambazi v Morester Farms Limited (1977) ZR, 108 (S.C.)
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Counsel for the 1st Defendant pointed to Order 3 Rule 2 HCR11 encouraging the court to
exercise its inherent authority as provided by the order that the court or a judge can, in an
interlocutory application, "Make any order which it or he considers necessary for doing justice,
whether such order has been expressly asked by the person entitled to the benefit of the order
or not." It was argued that this court has the power to make an order to correct the imbalance
caused by presidential immunity in this matter.

Learned counsel for the 1st Defendant conceded that the law was clear that actions which
sought to protect or enforce the fundamental rights provided under Part 3 of the constitution,
from Article 11 to Article 2612, must be commenced by Petition.

Learned counsel for the 1st Defendant however submitted that the 1st Defendant was not
arguing that his rights under the constitution had been violated but rather that, "both him and
the Plaintiff are protected under Article l l 13. However, with the immunity offered to the
Plaintiff under Article 4314, this removes the Plaintiff from being in the same league with the
Defendant. As such, in order to feel protected by this Court it is only necessary that an
appropriate order be made."

It was further argued that the requirement for a petition under Article 2815 was only in relation
to commencement of an action. In casu, the 1st Defendant was not commencing a
constitutional action but had merely made an interlocutory application necessitated by the
imbalance in the protection of the law between the Plaintiff and the 1st Defendant.

With regards the application for security of costs learned counsel for the 1st Defendant
submitted that Order 23 RSC16 is not exhaustive but merely demonstrative and the court has
wide discretion to make an order for costs even with respect to parties residing within the
jurisdiction and that Order 23 RSC17 did not prevent the court from exercising its power

11 Order 3 Rule 2, High Court Rules, High Court Act, Chapter 27, Laws Of Zambia
12 Part III, Articles 11 to 26, The Constitution, Chapter 1, Laws of Zambia
13 The Constitution, Chapter 1, Laws o f Zambia
14 Ibid
15 Article 28, The Constitution, Chapter 1, Laws of Zambia
16 Order 23, The Supreme Court Practice (White Book), 1999 Edition
17
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provided by Order 3 HCR18 to make orders for doing justice. It was also argued that in any
event, Order 40 Rules 7 and 8 HCR19 provided for the payment of security for costs.

Under the heading, "Setting Aside Writ for Irregularity", learned counsel for the 1st Defendant
repeated his argument on the inequality between the parties created by the Plaintiffs
immunity.

Learned counsel for the 1st Defendant disagreed that it was ultra vires for the Plaintiff to waive
his immunity arguing that Article 4320 was silent on the matter but, in any event, the 1st
Defendant was not contending that the Plaintiff should waive his immunity. He also submitted
that the 1st Defendants application for a stay of proceedings was not only to allow him to raise a
counterclaim against the Plaintiff but get an assurance that the parties would be placed on a
level playing field.

Learned counsel for the Plaintiff filed additional arguments in response to the 1st Defendants
submissions arguing, inter alia, that the 1st Defendant had not pointed out any irregularity with
the writ of summons. It was further submitted that it was clear that the 1st Defendants court
action was indeed anchored on Article 11 of the Constitution21 and his arguments constituted
an allegation that the provisions of Article 11 of the Constitution have been or are likely to be
contravened in relation to him.

I have considered the arguments of the parties and would wish to state that I quite recently
delivered a judgment in a matter very similar to this particular case. The Plaintiff was the same
and the 3rd Defendant herein was the 2nd Defendant in that matter; Michael Chilufya Sata v
Robert Amsterdam 8i Richard Sakala (T/a Daily Nation Newspapers)22.

I shall begin by addressing the issue of the procedure employed in raising these interlocutory
applications. Counsel for the 1st Defendant conceded that the procedure for enforcing

18 Order 3 Rule 2, The High court Rules, The High Court Act, Chapter 27, Laws Of Zambia
19 Order 40 Rules 7 and 8, The High court Rules, The High Court Act, Chapter 27, Laws Of Zambia
Article 43, The Constitution, Chapter 1, Laws of Zambia
21 Article 11, The Constitution, Chapter 1, Laws of Zambia
22 Michael Chilufya Sata v Robert Amsterdam & Richard Sakala (T/a Daily Nation Newspapers) 2012/HP/0627 (Unreported)
 Page 8 of 11

constitutional rights is clear and that such matters must be commenced by petition. He
however argued that, in casu, the 1st Defendant was not commencing an action but merely
making an interlocutory application necessitated by the imbalance in the protection of the law
between the Plaintiff and the 1st Defendant. He added that in any event the procedural
requirement was limited to the commencement of an action whilst these applications were
interlocutory.

It might be helpful to reproduce the exact words submitted by learned counsel for the 1st
Defendant;

"My Lord, the 1st Defendant is not arguing that his rights under the constitution
have been violated, but rather his argument before this court is that both him
and the Plaintiff are protected under Article l l 23. However, with the immunity
offered to the Plaintiff under Article 4324, this removes the Plaintiff from being
in the same league with the Defendant. As such, in order to feel protected by
this Court it is only necessary that an appropriate order be made.

As rightly so argued by the Plaintiff in its skeleton arguments that the proper
way of commencing an action when invoking the fundamental rights under the
Constitution must be by way of petition under Article 28 of the Constitution. To
the contrary, Article 28 provides for the mode of commencement of an action,
whereas in this case before you it's merely an interlocutory application. Such
an application My Lord is and can only be brought by way of summons plus
affidavit in support, and not by way of petition as argued by the Plaintiff as the
1st Defendant is not commencing afresh action at all.

In terms of Rules 2, of Statutory Instrument No. 156 of 1996, which provides to

the effect that "any application to the High court for the enforcement of Article
11 - 26 for the Constitution ought to be made by petition.

23 The Constitution, Chapter 1, Lows of Zombio

24 ....
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.......................... Article 11 is only referred to as a reminder of the right to

protection under the Constitution; instead the application is premised on the
Courts inherent jurisdiction to make the necessary order to do justice as
provided under Order 3 rule 2 HCR."

Having considered learned counsel for the 1st Defendants submission, and bearing in mind that
the headings of all three interlocutory applications clearly state that they are in relation to
Article 11 of the Constitution, I find it hard to appreciate how else his client's desire and intent
can be interpreted, other than that the 1st Defendant seeks to protect and enforce his rights as
provided by Article 11 of the Constitution.

The argument as I see it, is that the 1st Defendant feels that the immunity provided to the
Plaintiff by Article 43 of the Constitution, as Republican President is infringing on his (the 1st
Defendants) fundamental rights as provided by Article 11 and he wants the court to exercise its
inherent power as provided by Order 3 rule 2 HCR25 to make an appropriate order that will do
justice. In this same vein, learned counsel for the 1st Defendant referred to section 9 (2) of the
High Court Act, which as correctly observed by counsel for the Plaintiff must have been a slip
because the reproduced text belongs to section 4 HCR26.

The court has an obligation to preserve the established practice and procedure and in fact has
little, if at all any latitude, to twist and/or massage procedural requirements. In exercising its
inherent authority to make the necessary orders to do justice, the court, cannot not veer from
prescribed procedure where the procedure does not prejudice any of the parties. I must also
hasten to add that section 4 HCR has absolutely no relevance to this matter.

Interlocutory applications arising from a matter commenced by writ are normally by summons
but as was said in the case of New Plast Industries v Commissioner of Lands27 procedural
requirements are sometimes specified by statute. In this particular instance learned counsel for
the Plaintiff has himself quoted the relevant legislation relating to this issue as Rule 2, of

25 Order 3 rule 2, The High Court Rules, The High Court Act, Chapter 27, Laws Of Zambia
26 section 4, The High Court Rules, The High Court Act, Chapter 27, Laws Of Zambia
27 New Plast Industries v Commissioner of Lands
 Page 10 of 11

Statutory Instrument No. 156 of 196928 but he argues that it is restricted to the commencement
of actions and not to interlocutory applications. He quoted the Statutory Instrument as follows;

"any application to the High court for the enforcement of Article 11 - 26 for the
Constitution ought to be made by petition."

There is no way of escaping the requirements of Article 28(1)29 and Statutory Instrument No.
156 of 196930. It certainly does not mean that every time reference is made to Part 3 of the
Constitution one has to file a petition but when one seeks to enforce those rights, there is no
option but to file a petition for that purpose. There is no provision for seeking the enforcement
of the rights contained in Articles 11 to Article 26 by way of interlocutory summons.

The 1st Defendants interlocutory applications are borne of the process commenced by the
Plaintiff and would normally have been made by Summons, as has been done. However, it is
abundantly clear that the 1st Defendant seeks to enforce his rights under Article 11. This issues
raised by the 1st Defendant are constitutional in nature and seek to address the impact of
Article 43 on his rights as guaranteed by Article 11. It is therefore quite clear that the 1st
Defendant employed an incorrect procedure.

The constitution is silent on the question of the president commencing private litigation against
citizens vis-a-vis the impact of his immunity on such citizens. This lacuna creates the potential
for controversy and requires interpretation. In my judgment in the case of Michael Chilufya
Sata v Robert Amsterdam & Richard Sakala (T/a Daily Nation Newspapers)311said as follows;

"Constitutional law is dynamic and without doubt influenced by changing

perceptions of individuals and governments as they are impacted by changes to
the cultural, economic, social and political environment. Constitutional
interpretation is also influenced by international law as demonstrated by

23 Rule 2, of Statutory Instrument No. 156 of 1996

29 Article 28(1), The Constitution, Chapter 1, Laws of Zambia
30 Protection of Fundamental Rights Rules, Statutory Instrument No. 156 of 1969
31 Michael Chilufya Sata v Robert Amsterdam & Richard Sakala (T/a Daily Nation Newspapers) 2012/HP/0627 (Unreported)
 Page 11 of 11

nations ratifying international instruments and conventions that impact on

their domestic laws."

In casu, all three interlocutory applications are borne of the constitutional issues raised by the
1st Defendant. The applications are therefore dismissed on account of the wrong procedure
having been employed.

However, in my view the issues are cardinal and ought to be adjudicated and the 1st Defendant
is granted leave to file a petition on the same facts.

Because serious constitutional issues have been raised, each party shall bear its own costs

Dated this ............day of June, 2014.

M.M KONDOLO, SC
JUDGE