Mwelwa Samel Chilufya v The Inspector General of Police and Ors (Appeal 50/2023; CAZ/2022/08/563; CAZ/50/2023) (12 September 2024) – ZambiaLII

/tPft~ '>ll ( 0..1. ® IN THE COURT OF APPEAL OF ZAMBIA CAZ/50/2023 CfSL-/?JYJ.'2 jog/S -6~ HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: l 2 SEP 2024 MWELWA SAMUEL CHILUFYA APPELLANT AND THE INSPECTOR GENERAL OF POLICE 1 RESPONDENT ST THE DIRECTOR GENERAL OF ZAMBIA 2ND RESPONDENT INFORMATION COMMUNICATION AND TECHNOLOGY AUTHORITY THE ATTORNEY GENERAL 3RD RESPONDENT Coram: Mchenga DJP, Muzenga and Chembe, JJA On 30th April 2024 and 12th September 2024 For the Appellant: B. Macheleta, WM Kabimba and Company For the 1st and 3rd Respondent: C. Mulonda, Principal State Advocate, Attorney General's Chambers For the 2nd Respondent: M. Mponela, In-house counsel, Information Communication and Technology Authority JUDGMENT Mchenga DJP, delivered the judgment of the court Cases referred to: 1 . Wise v . E. F. Hervey Limited [1985] Z.R. 197 2. Nyampala Safaris (Z) Limited and Others v . Zambia Wildlife Authority, S.C.Z Judgment No. 6 of 2004 J2 3 . Scherer v . Counting Investments Limited [1986] 1 WLR 615 4. Mutale v . Zambia Consolidated Copper Mines Limited [1993- 1994] Z.R. 94 5 . Collett v . Van Zyl Brother s Limited [1966] Z.R. 65 Legislation referred to: 1 . The Cyber Security and Cyber Crimes Act No . 2 of 2021 2 . The High Court Act, Chapter 28 of the Laws of Zambia Works referred to: 1 . The Rules of the Supreme Court of England 1999 Edit.ion . 1 INTRODUCTION 1.1 On 6t'1 October 2022 , the High Court (Mili mo-Salasini, J . ) granted the appellant leave to commence judicial review proceedings against the and respondents . 1.2 Di.s~nchanted with that decision, the 2nd respondent moved the court for an order of misj cinder . In a ruling delivered on 15t.h December 2022 , the 2nd respondent' s appl ication was gr anted. 1.3 This is an appeal against the order of misjoinder . J3 2 BACKGROUND 2.1 On 26th July 2022 , obscene video clips of woman appeared online . The following day, the Zambia Police Service issued a statement that they had instituted investigations into the matter, with a view to identify the persons responsible for the publication and circulation of the videos . 2 .2 On 30~h August 2022 , the appellant wrote a letter to the Zambia Police, enquiring on the findings of their investigations . He did not receive any answer. 2 . .-.:,, Consequently, on 19th September 2022 , the appellant made an ex-parte application, for leave to commence judicial review proceedings . He sought an order of mandamus against the p t and 2nd respondents , to compel them to disclose the outcome of their investigations . 2 .4 Leave was granted to the appellant on 6th October 2022 . 2 .5 However, on 21st October 2022 , the 2nd responc;ient made an application for an order for misj oinder . The application was premised on the contention that under the Cyber Securi.ty and Cyber Crimes Act, the 2act J4 respondent' s mandate did not extend to the conduct of investigations into any criminal activity. 2 . 6 It was also contended that appellant had failed to establish a cause of action against the respondent, because he had not clearly demonstrated the omission or decision of the 2nd respondent, on which the application for judicial review was premised. 3 DECISION OF THE HIGH COURT 3 .1 The trial Judge considered the statutory functions of the 2nd respondent and found that Sections 5 and 15 of the Cyber Security and Cyber Crimes Act, did not give them the mandate to carry out investigations in criminal matters . 3 .2 Consequently, she found merit in the 2nd respondent' s contention that it had been improperly made a party to the.proceedings . She proceeded to grant the prayer that the 2~ respondent be removed from the proceedings for misjoinder . 4 GROUNDS OF APPEAL 4 .1 Four grounds have been advanced in support of this appeal . They are couched as follows : JS (i) The learned trial Judge erred in law and fact in deciding that the appellant has failed to establish a cause of action and that there was no decision to review; (ii) The learned trial Judge erred in law and fact in deciding that the application for judicial review by the appellant was interference in the on-going criminal investigations by the 1st respondent; (iii) The learned trial Judge erred in law and fact in dismissing the appellant's application for judicial review proceedings with costs; and (iv) The learned trial Judge erred in law and fact in her decision to misjoin the 2nd respondent from the judicia~ revi~w proceedings. 4 .2 Having examined the trial Judge' s ruling which is the subject of this appeal, it is clear that the issues raised in the 2~ ground of appeal, were not considered nor determined in that ruling. This being the case , we find the 2nd ground of appeal to be incompetent and we strike it out . J6 5 ARGUMENTS IN SUPPOR'I' OF THE APPEAL 5 .1 In our asses sment, the pt and 4th grounds of appeal deal with the same issue; the argument that the misjoinder of the 2nd respondent was erroneous because the appellant did in fact disclose a cause of action agai nst that party. 5 .2 In support of these grounds of appeal, Mr . Macheleta submitted that the 2nd respondent i s amenable to judicial review by reason of Section 5 of the Cyber Security and Cyber Crimes Act. That provision places a duty on them to coordinate with law enforcement agencies , to ensure that there is a safe cyberspace, and investigation of cyber incidents . 5.3 It follows , that the failure by the 2~ respondent to facilitate investigation of the circulation of the pornographic vi deos, a criminal offence, renders them amenable to an order of mandamus, by virtue of Order 53/14/42 rule 1(1) of the Rules of the Supreme Court (RSC) . s. As regards the award of costs (the 3rd ground of appeal) , Mr. Macheleta submitted that the i nstitution of these proceedings, was prompted by the failure of J7 the police to respondent to the appellant' s letter of demand. Had they r esponded to t he appellant' s quer y , he would not have moved the court . s.s He submitted that in the circumstances, awarding the 2nd respondent costs , would set a bad precedent because it is their inaction that triggered the suit . 6 ARGUMENTS AGAINST THE APPEAL 6.1 In response to the arguments in support of the 1st and 4 grounds of appeal, Mr . Mponela drew our Lh attention to Sections 5 and Part IX of Cyber Security and Cyber Crimes Act. These provisions set out the mandate of the 2nd respondent . 6.2 He then referred to Order 15/1/2 of the RSC and the case of Wise v. E . .H'. Harvey Limited1 , and submitted that the appellant failed to dis close a cause of action against the 2~ respondent, because it was not within their mandate to j_nves tiga te criminal offences . 6 .3 In addition, Mr . Mulonda referr ed to the case of Nyarnpala Safaris ( Z) Limited and Others v. Zambia W.ildlife Authority2 and submitted that the trial Judge rightly found that a cause of action had not ,18 been established, because the decision to be impugned has not been established. The illegality, irrationality or procedural impropriety, had not been established because criminal investigations are still on going . 6.4 On costs, Mr . Mponela referred to Order 40 rules 1 and 6 of the High Court Rules and submitted that the 2nd respondent was entitled to costs on account of the expenses incurred after being wrongly made a party to the proceedings . 6.5 In his submissions on the question of costs , Mr . MuloDda referred to the cases of Scherer v . Counting Investments Limited3 Mutale v . Zambia Consolidated , Copper Mines Limited4 and Collet v. Van Zyl Brothers Limited5 and submitted that it was in the discretion , of the t rial Judge t o award costs, and in this case, there is no ground on which she can be faulted for making the award. 7 CONSIDERATIONS OF APPEAL AND DECISION OF THE COURT 7.1 At the hearing, the parties approached this appeal as if i t was concerned with the propriety of the appellant being granted leave to commence judicial J9 review proceedings against all the respondents; it is not concerned with that issue . 7.2 This appeal is concerned with whether the trial Judge was correct when she gr anted the 2~ respondent an order of misjoinder, on the ground that they were wrongly made a party to the proceedings . 7 .3 According to the appellant, he moved the court for an order of mandamus, after the 1st respondent failed to respond to his query on the status of the investigations into the pornographic videos that had been circulated online on 26ch July 2022 . There is no evidence of him ever interacting with the 2nd respondent or the 2nd respondent having played any role in those investigations. 7 . 4 Section 5 of the Cyher Security and Cyber Crimes Act, which sets out the mandate of the 2nd respondent and PART IX of the Cyber Security and Cyber Crimes Act, which lists the different types of misconduct that amount to cybercrime, clearly points at the fact that the 2nd respondent plays no role in criminal investigations . 7.5 The closest that the 2nd respondent gets to such J10 matters 1.s set out in Section 5 (1) (n) of the Cyber Security and Cyber Crimes Act, and it is to "coordinate with law enforcement agencies to ensure safe cyber space and investigations of cyber incidences". 7. 6 Going by the decision in the case of ~yampala Safaris (Z) Limited and Others v. Zambia Wildlife Authori ty2 , the trial Judge cannot be faulted for finding that the appellant' _s action against the 2nd respondent, did not disclose a cause of action . 7.7 The appellant did not set out the action which was undertaken by the 2nd respondent, which consequently stalled or delayed the criminal investigations into the publication of the pornographic videos. Further, the appellant failed to demonstrate the action which ought to have been performed by the 2nd respondent, and that it failed to perform that particular act, to the prejudice of the investigations . 7.8 In the premises, we find no merits in the isi: and 4th grounds of appeal and we dismiss_ them. 7 .9 As for the 3rd ground of appeal, which deals with Jll costs, having found that the trial Judge rightly found that the appellant had wrongly joined the 2~ respondent, it is our view that she was entitled to order that he pays costs . Ther e was clearly no reason for appellant to join them to this case on account of the Zambia Police Service failing to respond to his concerns over the investigation . 8 VERDICT 8.1 Having found no merits in all the grounds of appeal, this appeal fails . We dismiss it with costs . DEPUTY JCJDGE P ~ ..................~ t{\~.. ................. .............K...... ·~~;~. .. ................. . Y. Chembe COURT OF APPE.AL JUDGE COURT OF APPE.AL JUDGE