Morgan Ng'ona (Suing as member and Secretary General of the Patriotic Front party) v Miles Bwalya Sampa (Sued in his capacity as President of the Patriotic Front) (2024/HP/0938) (25 March 2025) – ZambiaLII

2024/HP/0938 BETWEEN: PLAINTIFF MORGAN NG'ONA (Suing as member and Secretary General oft he Patriotic Front party) AND DEFENDANT MILES BWA LY A SA1\1P A (Sued in his capacity as President oft he Patriotic Front) For the Plaintiff: Mr. J. Kayula ofL ewis Nathan Advocates For the Defendant: Mr. B. C Mutate SC, Mr. T Kasweshi ofE llis & Company Mr. K Kombe, Mr. C. Liato ofA ndrew and Partners Mr. A. Kasolo ofM ulilansolo Chambers Mr. P. Chibundi, Ms. J. Sipalo ofM essrs Mosha & Company For the Intended Defendant: Mr. D.M Bwalya, Mr. M Chisha ofS ampa Legal Practitioners RULING CASES REFERRED TO: 1. Mulli Brother Ltd v Malawi Savings Bank [2015] MWSC 467 2. Bernard Kanengo V Electoral Commission of Zambia and Attorney General 2022/ CCZ 0024 3. Chipa Chibwe (Suing in his capacity as Chairman of the Outdoor Advertising Association of Zambia) v Lusaka City Council 2024 CCZ 007 4. Morgan Ng'ona V The Attorney General and The Speaker of the National Assembly 2025/CCZ 1002 LEGISLATION AND OTHER WORKS REFFERED TO: 1. High Court Rules Chapter 27 of The Laws of Zambia 2. Black's Law dictionary Tenth Edition. 3. Patrick Matibini Zambian Civil procedure: Commentary and cases. 4. Halsb ury laws of England 4th Edition Vol. 37 5. the Rules of the Supreme Court of England 1.0 INTRODUCTION 1.1 This is a ruling on the PlaintiWs application dated 3rd July 2024 for the stay of the decisions made b¥ the Defendant removing the Plaintiff from the position of Secretary General and Member of the Central Committee of the Patriotic Front Party and any decision made by the Plaintiff after assuming the role of Secretary General. The application was made pursuant to Order 3 rule 2 of the High Court Rules Chapter 27 of the Laws of Zambia. 1.2 The ruling further relates to the Intended Defendant's application dated 9th July, 2024 for alteration of parties made pursuant to Order 16 rule 1 of the High Court rules Chapter 27 of the Laws of Zambia. 2.0 BACKGROUND 2.1 The background leading to this application is that on 3rd July, 2024, the Plaintiff, who sued in his capacity as member and Secretary General of the Patriotic Front Party, commenced an action against the Defendant who was sued in his capacity as President of the Patriotic Front Party, via writ of summons claiming the following:- i. An order that the decisions made by the defendant herein without the requisite ratification by the Central Committee were illegal and null and void. ii. An order that the decision oft he Defendant to dissolve the Central Committee oft he Patriotic Front is illegal as he does not wield such powers. iii. An order ofs tay oft he decisions made by the Defendant until this matter if fully determined by the court. R2 -- iv. A11y other reliefs tl,e cot1rt wot1fd deem fit. v. Costs ofa 11d ittcide11ta/ to tl,e proceedi11gs. 2.2 On 4th July 2024 this Court granted the Plaintiff an ex-parte order staying the decisions made by the Defendant as aforementioned. 2.3 On 9th July 2024 the intended Defendant Robert Chabinga filed an application for alteration of parties replacing Miles Bwalya Sampa with himself as Defendant on the basis that he was the newly appointed President of the named political party. 3.0 AFFIDAVIT lN SUPPORT OF THE APPLICATION FOR STAY. 3.1 An Affidavit in support of the ex-parte summons was filed into Court on 3rd July, 2024 and was deposed by Morgan Ng'onga the Plaintiff herein. He deposed inter alia that the Defendant was on 24th October, 2022 elected as President of the Patriotic Front Party through the Extra Ordinary Meeting held at Mulungushi International Conference Centre. That immediately after his election to the Office of President, the Defendant appointed the Plaintiff as the Secretary General and Chief Executive Officer of the Patriotic Front Party and made him Member of the Central Committee in line with the provisions of the Patriotic Front Constitution. 3 .2 He averred that in a similar fashion, the Defendant appointed one Robert Chabinga as a Member of the Central Committee and further appointed him leader of Opposition in Parliament in line with the same Constitution. 3.3 Further that sometime around 27th June, 2024, the Defendant asked the Plaintiff to write a letter to the Speaker of the National Assembly of Zambia informing the speaker that the decision to expel the nine (9) Patriotic Front Members of Parliament had been reversed, which R3 instruction the Plaintiff declined to cornply with on account that such a decision had to be subjected to the ratification process of the Central Committee of the party as required by the party Constitution. A copy of the Patriotic Front Constitution was exhibited and marked as "MN l." That this led to the Defcndaht alleging that the Deponent's acts amounted to insubordination. The Defendant also proceeded to write the said letter to the Speaker pardoning seven (?) out of the nine (9) expelled Patriotic Front Members of Parliament. A copy of the letter written by the Defendant was exhibited and marked as "l\1N2." 3.4 Arising from the above, the Defendant meted out disciplinary action against the Plaintiff on 28th June, 024 by removing him from the position of Secretary General and withdrawing his membership to the Central Committee without necessary ratification of the Central Committee in line with the Constitution of the Patriotic Front Party. A copy of the letter communicating the removal of the Plaintiff from the aforesaid positions was exhibited and marked as "MN3." 3.5 In addition, the Defendant meted out disciplinary action against the Leader of Opposition, Hon. Robert Chabinga, on allegations that the Plaintiff was receiving instructions from the said Hon Robert Chabinga who the Defendant labelled as arrogant. A true copy of the letter removing the said Hon. Robert Chabinga from his two (2) aforesaid positions was exhibited and marked as "l\.1N4." 3.6 It was further averred that, the Defendant also proceeded to exercise powers which he did not have of dissolving the Central Committee of the Patriotic Front Party. As proof thereof, a copy of the letter bearing the R4 dissolution of the Central Committee of the Patriotic Front was exhibited and n1arked as "MNS." 3.7 That the decision made by the Defendant without the ratification of the Central Committee was simply a proposal with no legal effect. He deposed that the said decision, however, has serious implications on the affairs of the Patriotic Front as the leading and biggest opposition political party in Zambia, whose Constitution clearly spells out the powers of the President and how such powers are to be exercised. 3.8 The deponent went on to deposed that the said decision of the Defendant herein further affected fundamentally, the operations of the National Assembly as the Defendant, in addition, purportedly removed the Leader of the opposition in Parliament whose role in the house is critical to the functioning democracy of Zambia. 3. 9 He stated that the conduct of the Defendant undermines intra-party democracy as it infringes on the rights of the wider membership of the party to participate in the affairs of the Patriotic Front Party. 3.10 Furthermore, that he is advised by his Advocates on record and verily believes the same to be true that this Honourable Court has jurisdiction to grant an Order staying the decision of the Defendant removing the Plaintiff as Secretary General and Member of the Central Committee of the Patriotic Front Party, removal of the Hon. Robert Chabinga from his position as Leader of the Opposition and Central Committee Member, dissolution of the Central Committee of the Patriotic Front Party and any other decision made by the Defendant upon assuming office of the Secretary General of the Patriotic Front Party pending the hearing and determination of this matter. RS 3.11 He lastly avcncd that prejudice whatsoever will be suffered by the Dctcndant once this J-Ionorable Court grants the order sought for but that the interest of justice will be served as the issues surrounding the Patriotic Front Constitution raised in this matter are of great importance and should first be conclusively determined before any further steps are taken by the Defe·nctant. 4.0 AFFIDAVIT IN OPPOSITION TO .AEPLICATION FOR STAY 4.1 An Affidavit in opposition was filed into Court on 21st November, 2024 and was deposed by Miles Bwalya Sampa the Defendant herein. 4.2 He deposed that the Plaintiff commenced an action against him on 3rd July, 2024, seeking the above-mentioned reliefs. Tha_t this Honorable Court granted the Plaintiff a stay order on 4th July, 2024, which maintained the status quo that existed before the expulsion oft he Plaintiff. 4.3 He further deposed that the said stay dated 4th July, 2024 was granted without his knowledge and without affording him an opportunity to present his position to this Honorable Court. 4.4 He averred that the Plaintiff was appointed as Secretary General and Member of the Central Committee of the Patriotic Front Party by the Defendant in accordance with the Patriotic Front Constitution, following his election as President of the Patriotic Front Party on 24th October, 2022. That the Patriotic Front Constitution confers upon the President of the Party the following powers: - i. To give instructions to any official or member oft he party; ii. To take disciplinary action against members of the party on grounds of misbehavior, with such actions subject to subsequent ratification by the Central Committee; R6 iii. To take di • • . ti. e Pres/de11t's op/11/011, are in tlze hest ec,s,ons or actio11s which, Ill I interest oftl,e develop111e11t or sec11rity oftl1e Party. 4.5 A copy of pages 20 and 2I extract frotn the Patriotic Front Constitution were exhibited and marked as "MBS ." 4.6 He deposed that the Plaintiff's refusal to comply with his instructions to write a letter to the Speaker of the National Assembly reversing the expulsion of nine (9) Patriotic Front Members of Parliament, a fact that the Plaintiff admits in paragraph and 1o of his affidavit, amounted to insubordination, which warranted immediate disciplinary action as provided under the Patriotic Front Constitution. 4. 7 That he exercised his Constitutional powers to remove the Plaintiff from his position as Secretary General and Member of the Central Committee on 28th June, 2024. He disputed the allegation that the decision to discipline the Plaintiff and remove one Robert Chabinga as Leader of the Opposition in Parliament required prior ratification by the Central Committee. He stated that ratification merely affirms decisions already taken and does not negate the immediate effect of disciplinary actions. 4.8 The deponent averred that the dissolution of the Central Committee, as outlined in the Plaintiff's affidavit, was a decision he took in exercise of his powers as President of the Patriotic Front Party to ensure discipline and order within the party. That contrary to the Plaintiff's statement in the affidavit in support, intra-party democracy cannot exist in an environment where key officials disregard instructions from the President and act contrary to the Party's Constitution. That the disciplinary measures he took and which were within the ambit of the Party Constitution that R7 governs the Patriotic Front, were necessarY to maintain order and stability within the party and to safeguard its democratic functioning. 4.9 He went on to aver that he verily believes that the stay was obtained without full and frank disclosure by the Plaintiff of material facts that would have significantly affected the Court's decision to grant the said Order. That since the granting of the stay, the Plaintiff has utilized its provisions to obstruct the proper and lawful functioning of the party. Further that the continuation of the stay order is causing irreparable harm to the party and its members, as it has prevented critical decision-making and disrupted the party's operations. It was his averment that subsequent to the granting of the stay, the Plaintiff had purported to make several decisions, including: - i. Appointing one Robert Chabinga as Acting President; ii. Expelling the Defendant and many other party members; iii. Changing of office bearer names, removing the Defendant's name as the President oft he Patriotic Front Party. 4.10 It was the deponent's averment that these actions and decisions are unlawful, as they have been made in reliance on an improperly obtained stay order. That such actions, being ultra vires, should be declared null and void ab initio by this Honorable Court. He deposed that the Plaintiff failed to demonstrate or disclose any actual or imminent irreparable harm that would have occurred in the absence of the stay. That the party's regular functions and planned activities, including elective meetings, were lawful and within the party's constitutional framework. 4.11 He deposed that the Plaintiff deliberately omitted to disclose that he was under investigations or subject to an internal disciplinary process, which omission demonstrates bad faith in seeking the stay to obstruct RS accountability. Further that the Plaintiff misrepresented his position within the party or his authority to seek a stay on behalf of the party, especially that his standing as Secretary General had already been relinquished. In addition, that the Plaintiff failed to disclose that he did not consult or secure the necessary mandate from the party leadership or general membership before seeking the stay, making the application unilateral and unrepresentative of party interests. 4.12 Further, that the Plaintiff failed to disclose his intention to use the stay as a tool for making unilateral decisions contrary to the party constitution. That this can be seen from the Plaintiff's subsequent actions in purporting to make appointments or issue directives. That the Plaintiff equally omitted to inform the Court that his position as Secretary General had already been relinquished or significantly altered by the party leadership, undermining his locus standi to file or benefit from the stay. 4.13 He deposed that the Plaintiff did not disclose the existence of internal mechanisms within the party for resolving disputes, which he failed to exhaust before rushing to Court. further that the Plaintiff failed to disclose the significant public interest and internal party concerns arising from his actions, which necessitated the scheduled elective meetings. 4.14 Furthermore, that the balance of convenience lies in favour of the Defendant and the party, as the stay's continuation would result in grave prejudice to their lawful operations and that this Honourable Court has the inherent jurisdiction to discharge the stay to prevent injustice. R9 ANp s.o SKELETON ARGlJMENTs LISTS oF AuTHoruTrns 5 .1 I am highly indebted to both Counsel for the skeleton arguments and lists of authorities filed in relation to the application for stay. I shall, however, not reproduce their contents here but shall take the same into consideration as I determine the said application. 6.0 AFFIDAVITS, SKELETON ARGIJ1\.1:ENTS & LISTS OF AUTHORITIES RELATING TO THE APPLICATION FOR ALTERATION OF p ARTIES 6.1 Both the Defendant and Intended Defendant filed affidavits and skeleton arguments relating to the application for alteration of parties which I shall not reproduce here for reasons that shall become apparent later in my decision herein. 7 .0 HEARING OF THE APPLICATIONS 7 .1 When the matter came up for hearing on 6th February, 2025, Mr. Bwalya, Counsel for the Intended Defendant relied on the documents filed into court on 9th July, 2024 in support of the application for alteration of parties. He also relied on the affidavit in reply which was filed into court on 25th July, 2024. 7 .2 Counsel further informed the Court that they had, on 4th December, 2024, filed into Court a Notice of Motion to raise a Preliminary Issue whether or not paragraphs 14 and 15 of the Defendant's affidavit in opposition to application for alteration of parties contains extraneous matters in form of either an obj~ction, legal argument or conclusion. That the application was supported by an affidavit, skeleton arguments and list of authorities which he wished to rely on. RlO 7 .3 Mr Kayula, Counsel for the Plaintiff submitted that the Plaintiff had on December, 2024, caused to be filed into Court a preliminary issue 3rd which sought to challenge the Defendant's affidavit in opposition for contravening Order 5 Rule of the High Court Rules. Counsel relied on the notice of motion, affidavit and skeleton arguments filed in support of the said application. 7.4 Regarding the substantive application for an order of stay, it was Counsel's submission that in urging this Court to confirm the ex-parte Order that was granted to the Plaintiff on 4th July, 2024 he was relying on the summons, supporting affidavit and skeleton arguments filed into Court on 3rd July, 2024. 7.5 Mr. Mwansa, SC, Counsel for the Defendant opposed the preliminary issue raised by both the Plaintiff and Intending Defendant stating that there is no defect to the affidavit but that paragraphs 14 and 15 are factual. Regarding the substantive application, he relied on the affidavit in opposition and the accompanying skeleton arguments and list of authorities. 7.6 Mr Liato, co-Counsel for the Defendant submitted that they were not objecting to the Plaintiff's Preliminary issue that the said paragraphs oft he affidavit in opposition offend Order 5 of the High Court Rules. 7.7 That with regards to the stay application, they did file an affidavit in opposition and skeleton arguments dated 21st November, 2024. 7.8 Mr Chibundi submitted that in agreeing with Mr Liato's position, there was no authority that had been cited by the Plaintiff and that they had not found one themselves that gives Court power to stay a decision made by Rll -- a leader of a club such as the d b the Defendant. He submitted one ma e Y that po,ver of the Court to stay only relates to decisions made by a Court, such as, pending an appeal. 7 •9 Mr Kayula, Counsel for the Plaintiff submitted that the position advanced by the Defendant that a decision made by a president of a club is not amenable to be stayed by this Court is a very dangerous proposition. That this is because the same seeks to cloth a leader with incurable powers and unchecked powers, which has never been the position of the law. Furthermore, that no authority has been cited to support such a sweeping position. 7 .10 Counsel invited the Honourable Court to disregard the position and uphold the ex-parte order. 8.0 DECISION 8.1 I have seriously considered the application together with the affidavit evidence, skeleton arguments and lists of authorities, and the oral arguments by Counsel for all the parties. 8.2 I will start with addressing the issue whether or not, the ex-parte stay granted by this Court to the Plaintiff on 4th July, 2024 should be confirmed or discharged. However, before I proceed to make the said determination, I must consider the Plaintiff's preliminary issue raised on 3rd December, 2025 as the same relates to the affidavit in opposition of the said stay. 9.0 PLAINTIFF'S PRELIMINARY ISSUE FILED ON 3RD DECEMBER 2024. R12 9.1' On 3 rd December, 2024 the Pl . . d Notice of motion to raise issue ' atnttff file a in Limine that the Defend a t' . . to the Plaintiffs application n s oppos1tton and order for stay contravened the mandatory provisions of order 30 Rule 3A of the High Court Am d Rules of 2020 as the skeleton en ment · arguments did not have a list of authorities. Further, that paragraphs 16,20,26,27,28,29 and 30 of their affidavit in opposition to the application for stay were not in the first person contrary to the provisions of order 5 rule 20 ( c) of the High Court Rules. Furthermore, that Paragraphs 11, 29 and 33 contain extraneous matters by way of conclusion contrary to order 5 rule 15 of the High Court Rules and that paragraphs 35 and 36 of the said affidavit in opposition contain extraneous matters by way of prayer contrary to orders rule 15 of the Hight Court rules. 9.2 At the hearing of the matter on 4th December, 2024 the Court directed that the Defendant attends to the issues raised by the Plaintiff and on 3rd February 2025 the Defendant refiled into court skeleton arguments that now had a list of authorities. However, the issues in the Affidavit in opposition as outlined above, were not attend to. 9.3 This Court therefore, has to determine whether the abovemention~d paragraphs of the affidavit in opposition offend order 5 rules 15 and 20(c) of the High Court Rules. 9 .4 The said paragraphs of the affidavit in opposition read as follows: "11. That the Plaintiff admits to having failed to comply with the Defendant's instructions to write a write to the Speaker of the National Assembly reversing the expulsion of nine (9) Patriotic Front Members of Parliament, as pleaded in paragraph 9 and 10 of his Affidavit. 16. That contrary to the Plaintiff's statement in paragraph 17 and 18, intra-party democracy cannot exist in an environment where key R13 officials disregard . . the President and act contrary to tl p 111stn1cttons frotn ie arty's Constitution. . . . . . 20. That since th tay the Plamtdf has utihzed Its • • e granting of the s , . . prov1s1ons to obstru th d lawful functioning of the party. ct e proper an 26. That the Pl~~,.,.tiff . o.tnitted to disclose that he was debberate1 Y . . . • H ...u un~er mv~stigations or subject to an intern~ d1sc1pbnary process, which omission dem o nstrates b a d ca 1 ·t1t in seeking the stay to preempt 1, to obstruct accountability. . . . . 2? • That the Plaintiff misrepresented bis position w1~ the party or his autliority to seek a stay on behalf of the party, espeCially when his standing as Secretary General was already relinquished. 28. That tlie Plaintiff failed to disclose that he did not consult or secure the necessary mandate front the party leadership or general membership before seeking the stay, making the application unilateral and unrepresentative of party interests. 29. That the Plaintiff failed to disclose his intention to use the stay as a shield for making unilateral decisions contrary to the party constitution, as evidenced by his subsequent actions in purporting to issue appointment or directives. 30. That the Plaintiff omitted to inform the Court this his position as Secretary General had already been relinquished or significantly altered by the party leadership, undermining his locus standi to file or benefit from the stay. 33. That the balance of conveniences lies in favour of the Defendant and the party, as the stay's continuation would result in grave prejudice to their lawful operations. 35. That I humbly pray this Honorable Court to discharge the ex party stay to prevent injustice. 36. That I further pray for an order declaring all decisions made by the Plaintiff subsequent to the granting of the stay to be null and void ab initio. 37. That I also pray for any other relief the Court may deem just an equitable in the circumstances. 9. 5 Order 5 rules 15 and 20 (c ) of the High Court Rules are couched as follows:- "15. An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion. 20. It shall be in the first person and divided into convenient paragraphs, numbered consecutively." R14 It is clear that the b th Defendant's affidavit in 9.6 . . a ave paragraphs of e . opposition do indeed violet d and 20 ( c) of the High Court or er 5 ru1e s 15 I Rules as the said paragraphs . ers conclusions and arguments contam pray , . whilst some are not in the first name. This was equally admitted by Mr. Liato, Counsel for the Defendant at the bearing of the application who conceded that the said paragraphs do in fact contravene the above cited provisions. 9. 7 I accordingly grant the Plaintiff's application and expunge the aforementioned paragraphs of the Defendant's affidavit in opposition dated 21st November, 2024 from the record. The said paragraphs shall, therefore, not be taken into consideration as I determine the application for stay. 9.8 Coming back to the main application at hand, the issue for my determination is, whether or not the ex-party stay granted to the Plaintiff by this Court on 4th July, 2024 should be discharged or confirmed. 9.9 Generally, a stay in court proceedings is a legal mechanism that temporarily halts certain actions or processes within a case. A stay is intended, inter alia, to preserve fairness, prevent harm, prevent conflicting rulings, or maintain the status quo while specific issues are resolved. The Black's Law dictionary defines a stay on page 1639 as:- "The postponement or halting ofa proceeding, judgment, or the like or an order to suspend all or part of judicial proceedings or a judgment resulting from that proceedings" 9 .10 Patrick Matibini in his book Zambian civil procedure on page 1414 stated the following in relation to a stay: - RlS "Other tha st· • . . · 11 aymg executio,, 0,I'. d fer ill order to p11rs11e a11 app1 tcat/011 to discl,ar , d . J JU g111e11t or ore . . · -ge a JU :g111e11t debt th h t o,fi1tsta/me11ts, all appltcaho11 to stay executiou tna b . roug pay111e11 . y e premised on tltefi·f' . ,u additio11al gro1111ds: Stay· d' · o ,owllla . pe11 mg an a11peal, Stay ofe xecution ofS 111n111ary j1ldgme11t pe1u/i11g trial ofc o1mterclaims. Stay wit ere summary !11dgme11t is for part o11ly ofa plailltif]'s clai:n a_11d,· . ~tay where facts ar,se after jud lltettt (review) wl,iclt would 111stify a different Judgment.,, g 9.11 Furthermore, the Halsbury's laws of England Edition ·vol 37 paragraph 4th 437 explain the general power to stay as follows: "Nature of stay ofp roceedi1tgs. A stay ofp roceedings arises tmder an order of the court which puts to stop or stay the fi,rt/,er conduct oftlte proceedinfs in that court at the stage wlticlt tltey have reached so that the parties are precluded thereafter from taking any further step in the proceeding~ Tlte object oft lte order is to avoid the trial or heariug of the action from taking place, where tlte court thinks it is just and convenient to make the order, to prevent uttdue prejudice being occasioned to tlte opposite party or to prevent the abuse ofp rocess. The order is made generally in the exercise oft he co11rt's discretionary jurisdiction and by way ofs ummary process that is without trial 011 the substantive merits oft he case and at any rate in the exercise of its inherent jurisdiction a11 order for the stay ofp roceediflgs is made very sparing only in exceptio11al circumstances. 9.12 Similarly, in the Malawian Supreme Court case of Mulli Brother Ltd v Malawi Savings Bank [2015] MWSC 467 the Court held that: ''As we understattd it, a stay is the act oft emporarily stopping a judicial proceeding through the order ofa court. It is a suspensio11 ofa case or a suspension ofa particular proceeding within a case. 9 .13 It is clear from the above authorities that a court has powers to only stay something that is a subject of judicial proceedings, Judgment or order. This means that a court cannot stay anything that is not subject of judicial proceedings, Judgment or order. The decision made by the Defendant sought to be stayed by the Plaintiff is neither a subject of judicial R16 I proceeding or Judgment nor i . f h circumstances in which a stay . · s It any o t e . . . can be granted as guided in the above cited book by Mat1b1n1. 9. 14 I must, however, mention that in Judicial Review proceedings, a court has powers to stay a decision which is a subject of the Judicial Review even though the same does- not fr m court proceedings. This is emanate o because Order 53 Rule 3(I0) (a) of the Rules of the Supreme Court of England categorically provides as such. The said order states as follows:- "Wltere /eave to apply for judicial review is grattted, then-If~ Ire reliefs ought is a11 order ofp rohibition or certiorari and tire Court so directs, the grant slta/1 o_perate as a stay oft he proceedings to which the application relates 11ntil the detennination oft he application or until tire Court otherwise orders.,, 9 .15 It is not in dispute that the matter at hand was commenced by writ of summons and statement of claim. As such, the decision that ~was made by the Defendant outside the herein proceedings, cannot be stayed by this Court. 9.16 Consequently, the ex-parte stay that was granted by this Court on 4th July, 2024 is hereby discharged. 9 .17 I also find it necessary to comment on the two (2) issues raised by the Defendant in his affidavit in opposition. He deposed that the stay in issue was granted without his knowledge and without affording him an opportunity to present his position to this Honorable Court. In addition, he averred that all decisions that were made during the subsistence of the ex-parte stay are unlawful as they were made pursuant to an improperly obtained stay order. Counsel urged this Court to declare the said decisions null and void ab initio. R17 9.18 My brief response to th c. . . that the stay of 4th July, . . e 1oregomg avcrrnents 1s . 2024, a position which is n t . . anted ex parte pending the . 0 In dtspu te, was gr . inter parte hearing. An ex . ted upon heanng only one · -parte order 1s gran party to the action. It is , the r e1 c. o re, me _ r e1 y c.01 . that simple reason that the 1, Defendant ,vas never accord d •ty to be heard prior to the stay e an opportun1 being granted. 9.19 Regarding the averment that all decisions that were made during the subsistence of the ex-parte stay are unlawful, I am alive to the legal position that an order of Court remains in force until discharged or set aside by the court. That then means all decisions that were made during the subsistence of the said ex-parte stay order are valid as the order was in force until the herein discharge. 9 .20 This position was confirmed by the Constitutional Court in the case of Bernard Kanengo V Electoral Commission of Zambia and Attorney General_w herein the Court stated that: "Nevertheless, that stay order !tad it issued had to be obeyed even though erroneously issued and remains in force until discharged or set aside." 9.21 I shall now proceed to consider the second issue, that is, the application for alteration of parties replacing Miles Bwalya Sampa with Robert Chabinga, the Intending Defendant, as Defendant on the basis that he is the newly appointed President of the Patriotic Front Party. 9 .22 It is my considered view that the determination of the said application in this matter by this Court would amount to making a decision on the presidency of the Patriotic Front Party. This is in light of the Defendant having disputed the assertions that the Intending Defendant was legally elected. The Defendant has insisted that he is still the legally appointed R18 President of ti , . . c Patriotic F F thcrmore th1s Court takes judicial not' root Party. ur ' tee of the procccdi . . No Z025/HP/0137 wherein the Dcfenda t . ngs 1n cause · . . . ts challenging th _ _ ding Defendant's standing as President. Th. . c lntcn ' . . ls ts on the backct - f h Constitutional Court s holdmg . rop o t c · 1n the case of Ch· . - · f tpa Ch1bwc (S . . _•s capacity as Chatrman o the umg m 1 11 0 utd oor Ad - · · · · z - verttsmg Associatio f mbia) v Lusaka City Counctl . no a h w ere1n the court held that:- It · - ts not enough fior a ... . d' . { I t be arn,pointed or elected as an office- ,, lit IVI{. 11a O 'r, bearer for a re"istered . . Rather formal recognition of such an 0 assoc1at,011. • 0 te . e -b . earer is com feted II OIi SIIC c ess 11/ - re ,is/ration b the Re istrar o So c1et1es. 9 .23 This position was again reaffirmed in a more recent holding of the same court in a ruling delivered by Justice Shilimi in the matter of Morgan Ng'ona V The Attorney General and The Speaker of the National Assembly 2025/CCZ 1002 where the court stated the following:- However, the same camwt be said for the Intended 4'h Respondent. She brings the application for joinder in a representative capacity as Deputy Secretary General of the Patriotic Front. The documentary evidettce furnished by the Petitioner in "MNJ" suggests otherwise as her name is 11ot appearilt,: amongst the office bearers oft he Patriotic Front. This then raises the question ofw hether she is the right person to he ioined to the proceedings as her appointment has not been formalised as is required under the Registration ofSocieties Act. 9.24 In Chipa Chibwe (Suing in his capacity as Chairman of the Outdoor Advertising Association of Zambia) v Lusaka City Council', a panel of three judges of this Court dealt with a similar situation. A Petitioner sought to bring a representative action when his appointment as Chairman of the group of persons he sought to represent was not Supported by records kept by the Registrar of Societies. The panel upheld a notice of R19 motion challenging the I . ·1· ner to bring such an ocus standi of the Pett action. 9.25 In Cause No 2025/HP ·h h ein who is the Applicant , t e Defendant er , in the said cause is seeking J ct· . . . f the Registrar of Societies' u 1c1al Review o decision to change the list of ffi f the Patriotic Front Party. - o ice bearers o - The Defendant is seel<lng th c. . • • c.. e J.Ollowmg relle1s.- J. Leave to applyf er Judicial revie•Y oft /te decision made by t!te 2nd Respon~en:, the Registrar of Societies, to amend the list of office bearers of t!te ,:atnollc Front Party withoutf ellowing due process as required tmd~r ~lte Sectwns Act, Chapter 119 of the Laws of Zambia, and tlte Socteltes Rules made thereunder. nd 2. An order of Certiorari to quash the impugned decision oft lte 2 Respondent to amend the list ofo ffice bearers oft he Patriotic Front Party. 3. An order ofP rohibition, restraining tlte 2nd Respondent from implementing or enforcing the amendments to the list of office hearers made in contravention oft he law. 4. A declaration that the decision by tlte 2"d Respondent to amend the list of office bearers oft he Patriotic Front Party is ultra vires the Societies Act and, therefore, null and void. 5. An order directing the 2"d Respondent to revert to the legitimate list ofo ffice bearers of tlte Patriotic Front PARTY as it stood prior to the impugned decision. 6. A stay of the decision oft he Registrar of Societies to amend the list ofo ffice bearers, pending the full determination oft/tis matter. 9 .26 Based on the above outlined reliefs being sought by the Defendant herein, in the foregoing pending matter, and in light of the Constitutional Court authorities cited above to the effect that formal recognition of an office bearer is completed only upon successful registration by the Registrar of Societies, I find that replacing the parties at this point would be premature. This is because the Defendant has disputed the appointment of the Intending Defendant as the current President of the Patriotic Front Party. I find that the issue of who is President of the Patriotic Front is still a R20 contentious i .. ssue \Vh· 2025/fip Ich is Still . 137. Co a subject of consideration under Cause No. cont · d' · nseque . . . . ta Icting decjs· ntiy, in order to avoid coming up With d . Ions on h echnes the Intend· t e same issue in different matters, this Court Ing Defc nd as defendant he . ant's application to replace the Defendant - rein With th 2025/BP IOI37 • e Intending Defendant until after Cause No. · Is detern, · .. •dned 9.27 This Court havin d . g ecbnect to d. . . 1 . . parties con ·ct . etermine the app1lcat1on 1 c-.· o r a terat1on of ' s1 erat1on of th . 14 and 15 f e PreJuninary issues whether or not paragraphs o the Defend . . . . . . alteration f . . ants Affidavit in oppos1t1on to apphcat1on for o . parties cont . ob· f ' ains extraneous matters in form of either an 1ec ion, legal argurn ent or conclusion becomes otiose. 9.28 Each party to bear own costs. 9 .29 Leave to appeal is hereby granted. Delivered at Lusaka this 25th day of March, 2025 C. CHINYANWA ZULU, J P.O. BOX 50067. LUSAKA R21