THE LAW ASSOCIATION OFZAMBIA AND TUTWA NGULUBE (PETITION NO. 13/CCZ/2019) (19 February 2020) – ZambiaLII

I PETITION NO. 13/CCZ/2019 IN THE CONSTITUTIONAL COURT FOR ZAMBIA HOLDEN AT LUSAKA IN THE MATTER OF SECTION 2 OF THE CONTEMPT OF COURT (MISCELLANEOUS PROVISIONS) ACT CHAPTER 38 OF THE LAWS OF ZAMBIA IN THE MATTER OF AN APPLICATION BY LAW ASSOCIATION OF ZAMBIA FOR AN ORDER OF COMMITTAL/ OR AN INJUNCTION BETWEEN: REPUBL,C OF ZAMBIA THE LAW ASSOCIATION OF ZttfX'1 oNAL COURT OF z,PLICANT AND AP TUTWA NGULUBE RE PONDENT REGISTRY P 0 BOX 50067 LUSAJ(cid:9) A I CORAM: Sitali, Mulenga and Musaluke, J Oil 14" January, 2020 and on 19" February, 2020. For the Applicant: Ms. M. Nalusenga and Ms. M. Nkonde of Simeza Sangwa and Associates For the Respondent: Mr. P. K. Chibundi of Mosha arid Company RULING Mulenga, JC, delivered the Ruling of the Court Cases cited: 1. Harmsworth v Harmsworth [1987] 3 All E.R. 816, CA 2. Leopold Walford (Z) Limited v Unifreight (1985) Z.R. 250 3. Harkness v Bells' Asbestos and Engineering Limited [1966] 3 All E.R. 843 4. Bank of Zambia v Aaron Chungu, Access Finance Service Limited and Access Leasing Limited (2008) 1 Z.R. 81 (SC) 5. Chiltern District Council v Keane [1985] 2 All E.R. 118 CA Ri 6. Jelsen (Estates) Limited v Harvey [ 1984] 1 All E.R. 12 Legislation referred to: Contempt of Court (Miscellaneous Provisions) Act, Chapter 38 of the Laws of Zambia Works referred to: Rules of the Supreme Court of England 1965, 1999 Edition (White Book) This Ruling is on the Respondent's application to set aside and/or dismiss for irregularity the Applicant's notice of motion for an order of committal for alleged contempt. The application was filed on 13th September, 2019 and was made pursuant to Order 2 rule 2 of the Rules of the Supreme Court of England 1965, 1999 edition (White Book) and the inherent jurisdiction of the Court. The brief background to the application is that the Applicant, as Petitioner, had on 12th August, 2019 filed a petition under the current cause number against the President of the Republic of Zambia, the Attorney General and the National Assembly, as Respondents, regarding the Constitution of Zambia (Amendment) R2 Bill No. 10 of 2019. On 23rd August, 2019 the Applicant filed a notice of motion for an order for committal for the publication in contempt of proceedings before this Court against the current cited Respondent, Mr Tutwa Ngulube. The application was made under cause number 20 19/CCZ/ 13 for the Petition but without listing the original Respondents. The notice of motion for committal was accompanied by an affidavit outlining statements attributed to the current cited Respondent. The Respondent subsequently filed the summons to set aside or dismiss for irregularity which lists the following three grounds of irregularity: 1. The party cited as Respondent, Tutwa Ngulube, is not a party to these proceedings and the entire heading of the Applicant's notice of motion is irregular as it is not headed in the matter of the Action under cause No. 13/CCZI20I9; 2. The notice of motion does not state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt of court with sufficient particularity to enable him to meet the charge; 3. The Applicant has not sought or obtained leave of Court to commence committal proceedings for contempt. At the hearing of the summons, the Respondent withdrew the third ground regarding the requirement for leave. It thus stands withdrawn and we shall therefore not comment or outline the arguments that were initially proffered by the parties on it. R3 ) In his affidavit in support of the summons, the Respondent stated that he was not a party to the proceedings under cause number 20 19/CCZ/ 13 contrary to how he was cited. That the Respondents in the main matter were the President of the Republic of Zambia, the Attorney General and the National Assembly. He also stated that he was unable to answer the charges made in the notice of motion because it lacked sufficient particularity on his alleged contemptuous actions. He thus prayed that the Applicant's notice of motion be dismissed on account of irregularity. Mr. Chibundi, counsel for the Respondent, augumented the filed skeleton arguments in support of the application. In relation to the first ground, it was argued that the Applicant's notice of motion is irregular based on the explanatory note No. 52/4/1 of the White Book which requires that it should have been headed in the matter of the action under which it was instituted. The relevant part of the explanatory note was reproduced as follows: "Notice of motion: ...The notice of motion should be headed in the matter of the action (if there be an action) and in the matter of an application on behalf of A. against C.D for an order of committal." R4 It was posited that the notice of motion should have been headed in both the matter of the main action and the application. To buttress the point, Mr. Chibundi submitted that the notice of motion for committal cites Tutwa Ngulube as Respondent when he was not a respondent in the matter under which the motion for committal was brought contrary to the requirements under Order 52 rule 4 of the White Book. On the second ground, it was submitted that the notice of motion was neither clear with regards to acts that constitute the alleged contempt nor does it state exactly what the alleged contemnor did or omitted to do. Reliance was placed on Order 52 rule 4 and the explanatory note No. 52/4/3 of the White Book which instructs that a notice of motion ought to state with sufficient particularity what the alleged contemnor has done to enable him meet the charge. It was the Respondent's position that this defect was fatal and could not be cured by a reference to an audio recording which was not even before Court. The case of Harmsworth v Harmsworth' was cited as instructive that the particulars should be provided in the notice of motion and that it was not permissible to refer in the notice to an affidavit or other separate R5 documents for particulars of the alleged contempt. Further, that if theparticulars were lengthy, it was permissible to include them in a schedule or addendum to the notice of motion provided they form part of the notice itself. The Applicant filed an affidavit in opposition deposed to by Eddie Kalela Mwitwa, the President of the Law Association of Zambia. He stated that the Respondent, on 14th August, 2019 published an audio recording of himself speaking on the proceedings before this Court in Petition No. 2019/CCZ/ 13. He averred that that the Respondent was therefore the right party to be cited for contempt proceedings. He further stated that the Applicant's notice of motion gives sufficient details of the Respondent's contemptuous acts. Thus, that the Respondent's application to set aside the Applicant's notice of motion lacks merit. The Applicant also filed skeleton arguments which were augmented at the hearing. On the first ground, the Applicant argued that the notice of motion was headed in the matter of the action by virtue of the cause number indicated which was representative of the original action. Ms. Nalusenga, counsel for the Applicant, submitted that pursuant to section 2 of the R6 Contempt of Court (Miscellaneous Provisions) Act a person need not be a party to a particular action for them to be cited for contempt. She further argued that the contempt proceedings were not a fresh action but arose from the earlier Petition filed by the Applicant. Counsel maintained that by virtue of the cause number of the Petition indicated in these proceedings, the requirements of Order 54 rule 4 as outlined in explanatory note No. 52/4/1 of the White Book were complied with. The Applicant further argued in the alternative that should this Court find that the contempt proceedings are not sufficiently headed in the matter of the action under cause no. 2019/CCZ/ 13, then the defect is one that is curable and not fatal to the proceedings based on the case of Leopold Walford (Z) . In addition, the case of Limited v Unifreight2 Harkness v Bells' was cited to the effect that Asbestos and Engineering Limited every omission or mistake in practice and procedure is curable so long as the cure of the defect can be done without any injustice to the parties. It was concluded that no prejudice or injustice would be occasioned to the Respondent if the defect was cured. Addressing the second ground concerning insufficient particulars, the Applicant submitted that the notice of motion R7 complied with explanatory note No. 52/4/3 and the test in 4akiiisworth V Harmsworth', in that it stated with sufficient particularity what was done which constituted contempt. Namely, that the Respondent published an audio recording on various media platforms which touched on the court proceedings. It was added that a fair and sensible reading of the motion having a background of the proceedings would leave no doubt of the breaches alleged. Hence, that the particulars given in the notice of motion contain sufficient information to enable the Respondent meet the charge. In augumenting this point, Ms. Nkonde, co-counsel for the Applicant, argued that under Order 52 rule 4 (2) and (3) of the White Book, it was necessary to show, on the face of the notice of motion, the acts that constitute contempt and the grounds of the application. Accordingly, that the notice of motion mentions the audio recording and the grounds of the application. Counsel cited the case of Bank of Zambia v Aaron Chunc, Access Finance in which the Service Limited and Access Leasing Limited Supreme Court was said to have held that the notice of motion was irregular if it did not state on the face of it the grounds of the application. She submitted that in this instant case, the R8 Applicant's notice of motion complied with the above requirements: In reply, Mr. Chibundi, counsel of the Respondent, addressing the first ground on irregular heading, reiterated that what is meant by the heading being in the action was that the full particulars of the action under which the contempt proceedings are commenced must be specified unlike in the instant case in which the alleged contemnor is cited as the Respondent. In particular, that the notice of motion should have first been headed as in the original action by listing the actual Respondents and then also headed as in the matter of the Applicant against Tutwa Ngulube as alleged contemnor. With regard to the second ground, Mr. Chibundi maintained that the explanatory note No. 52/4/3 of the White Book specifically adds that the necessary information must be given in the notice and if lengthy, it could be included in the schedule or addendum to the notice provided they form part of the notice itself. That in this case, contrary to the above rule and the case of Harmsworth v Harmsworth1, no particulars were provided in the notice of motion and the alleged audio recording was not before Court. R9 We have considered the affidavits, skeleton arguments and oral submissions by the' parties. The' main issuc -for determination is whether the Applicant's notice of motion for committal proceedings is irregular and thus, liable to be set aside or dismissed. This is on account of the two grounds advanced, namely; whether the Applicant's notice of motion properly cites the Respondent as required in contempt proceedings; and whether the notice of motion sufficiently specifies the particulars of the alleged contempt as required by Order 52 rule 4 of the White Book. To begin with, we note from the Applicants' notice of motion for committal proceedings that it was essentially made pursuant to Order 52 rules 1 and 4 of the White Book. This was apparently done by virtue of Order I of the Constitutional Court Rules in view of the fact that the Constitutional Court Rules do not provide for the procedure or process for instituting committal proceedings. It follows that the relevant requirements of Order 52 of the White Book must be followed in filing the motion. This is what is at the core of the Respondent's challenge to the Applicant's notice of motion for committal proceedings. RIO In considering the first issue on whether the Applicant's notice of motion properly cites the Respondent as required in contempt proceedings, explanatory practice note No. 52/4/1 of the White Book is instructive and it provides in part as follows: "The notice of motion should be headed in the matter of the action (if there be an action) and in the matter on an application on behalf of A.B. against C.D for an order of committal." This provision requires that where the committal proceedings are being instituted in an action that has already commenced, as was the case in casu, the heading should specify the full particulars of the original action and then go further and specify the particulars regarding the committal application. Therefore, the Applicant was required to not only cite the cause number of the original or main action under which the application was made but also the parties as they stood in the main action. As rightly argued by the Respondent, he was not a Respondent in the main action contrary to what the heading in the notice of motion for committal suggests. In this case, the Applicant was therefore required not only to fully specify the parties in the main action, but also to go further and specify the parties to the contempt proceedings R11 Respondent argued that the notice of motion is fatally defective as it 'does not state or specify what the alleged contemnor did or omitted to do as required under Order 52 rule 4 and explanatory practice note No. 52/4/3 of the White Book as well as the test in the Harmsworth1 case. The Applicant responded that the requirements were met in that the notice of motion mentions the audio recording and this meets the threshold set in the case of Bank of Zambia v Aaron where it was held that Order 52 rules 1 Chungu and two others and 4 of the White Book are met once it is demonstrated that the grounds of the committal application can be seen on the face of the notice of motion. We have perused the impugned notice of motion which essentially states that the Respondent published an audio recording on various social media platforms on the proceedings in the main matter. This is followed by the listing of the four grounds of the application. It is thus clear that although the notice of motion makes mention of an audio recording, it does not specify the actual words uttered that are alleged to be contemptuous. The specific words uttered are contained in the R13 It Applicant's affidavit. The explanatory note No. 52/4/3 on the grounds of the application clearly stipulates in part that: 'The notice of motion must state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt of court with sufficient particularity to enable him to meet the charge (cid:9) The necessary information must be given in the notice itself; if lengthy particulars are required it is permissible to include them in a schedule or addendum to the notice, provided that they form part of the notice itself; it is not permissible to refer in the notice to an affidavit or other separate document for particulars which ought to be in the notice. This explanatory note is clear that the particulars of what is alleged to have constituted contempt must be given in the notice of motion itself and where it is lengthy, it should be in the schedule or addendum to the notice. It is further categorical that it is not permissible to refer in the notice to an affidavit or other separate documents for the said particulars. This is for good reason because committal proceedings are quasi criminal proceedings and can culminate in severe sanctions including imprisonment. Hence, there are strict requirements to ensure that the alleged contemnor is put on proper notice of the case against him and such procedural rules must be strictly complied with. R14 The notice of motion does not state the alleged contemptuous words but only makes reference ta an audio recording. The Applicant has argued based on the case of Bank of Zambia v Aaron Chungu and two Others4 that a sensible reading of the notice of motion by a person with the background knowledge of the proceedings would leave no doubt of the breaches alleged. This argument is apparently based on the remarks by Sir John Donaldson MR in the case of Chiltern District Council v Keanne5 cited in the Bank of Zambia4 case as follows: Every notice of application to commit must be looked at against its own background. The test as I have said is: does it give the person alleged to be in contempt enough information to meet the charge? If for example, a defendant is subject to an injuction to leave a stated house not later than a particular time on a particular day then it would be sufficient to say that he had failed to comply with that order, because it only permits one breach, namely failure to leave the house by the time stated. But where the order is not in such simple form and it is possible for the defendant to be in doubt what breach is alleged, then the notice is defective. We have considered the Applicant's argument. The notice of motion states that the Respondent should be committed to prison "for his several contempts in making and publishing various R15 P statements on the said audio recording" The question is; can this statement leave no doubts of the breaches alleged to one who has background knowledge in the absence of sufficient particulars? The answer is no. This does not provide sufficient particulars of the words uttered which were alleged to be contemptuous. In the Keane-5 case it was stated that where the particulars cover a wide range of activities or issues, it must be specified whether the breach covers all or some and if so, which one of them. In this case, the Applicant in alleging several contempt in the audio recording was required to particularise the statements to enable the Respondent meet the charge and not be in doubt as to the specific breaches alleged. The Applicant also had the option of attaching a schedule or addendum to the notice of motion to satisfy this requirement but did not do so. As already stated above, the serious nature of contempt proceedings entails that the rules of procedure must be applied strictly, which was not done in this case. We accordingly find that the notice of motion lacks sufficient particularity contrary to the requirements of Order 52 rule 4 of the White Book. R16 Hence, what falls to be determined is whether or not this defect is fatal. In the persuasive case of Bank of Zambia v Aaron Churgu and two Others the Supreme Court dismissed an application for committal proceedings against Dr. Caleb Fundanga, in his capacity as Governor and Chairman of the Bank of Zambia, for the notice of motion being defective for lack of specifics, in part. The cases of Harmsworth v Harmsworth1 and Jelsen (Estates) Ltd v Harvey', took the same approach of dismissing the motions after finding insufficient particulars. These persuasive authorities lend support to the position that this defect is fatal. We endorse this position. It follows that the defect in this current case is fatal. Having found that the second issue, that the notice of motion does not sufficiently specify the particulars of the alleged contempt, has succeeded and due to the fatal nature of this defect, we do not see any relevance of commenting further on the first defect which was found to be curable. In sum, the Respondent's application to set aside/ dismiss, for irregularity, the Applicant's notice of motion for committal succeeds and the Applicant's notice of motion filed on 23rd R17 August, 2019 is accordingly dismissed with costs to the Respondent. A. M. Sitali Constitutional Court Judge M. S Mulenga Constitutional Court Judge M. Musaluk Constitutional Court Judge R18