Agnicious Mushabati and Ors v National Prosecution Authority and Ors (COMP /IRCLK/ 246 / 2021) (28 September 2022) – ZambiaLII

. IN·THE HIGH COURT FOR ZAMBIA COMP/ IRCLK/ 246 / 2021 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AGNICIOUS MUSHABATI · 1sT COMPLAINANT PETER ZULU 2ND COMPLAINANT HARDIE SIKUMBALI 3RD COMPLAINANT f . AND NATIONAL PROSECUTION AUTHORITY RESPONDENT LILLIAN FULATA SHAWA - SIYUNI INTENDED 15 CONTEMNOR T MABLE BAULENI NAWA INTENDED CONTEMNOR 2ND CORAM: Honourable Lady Justice Dr. Winnie Sithole Mwenda in Chambers at Lusaka this 28th day of September, 2022 For the Complainants: In person For the Respondent: NIA RULING Cases referred to: 1. Halford v. Hardy (1899) 81 LT 721. 2. Hillingdon London Borough Council v. Cutler [1967] 2 All ER 361, CA. 3. Anglo-Eastern Trust v. Kermanshahchi [2002] All ER (DJ 296 (Oct). 4. Beatrice Nyambe v. Barclays Bank Zambia Plc (2008) Z.R. Vol. 2 195. Legislation referred to: 1. Order 52, rule 2(2) of the Rules of the Supreme Court of England, 1999 Edition (White Boole). 2. Order 45, rule 5 and Order 52, rule 3 of the White Boole. 3. Section 85 of _the Industrial and Labour Relations Act, Chapter 269 of the Laws ofZ ambza and Rule 50 of the Industrial Relations Court Rules. 4. Sections 7 and 8 of the National Prosecution Act, No. 34 of 201 O. R2 5· Order 10, rule 5 of the Court of Appeal Rules, S. I. No. 65 of 2016 (the Court of · Appeal Rules). 1. Introduction 1.1 This is the Complainants' ex-parte application for leave to commit the Respondent for contempt of court. The application was made on 30th August, 2022, by way of summons pursuant to Order 52, rule 2(2) of the Rules of the Supreme Court of England, 1999 Edition (the "White Book"). The applicants (Complainants) seek an order for leave to commit Mrs. Lillian Fulata Shawa-Siyuni and Ms. Mable Bauleni Nawa, both being directors for the Respondent, to prison . for contempt of court by disobedience to a judgment or order of the Court delivered by this Court, on 9th May, 2022 and duly served on the Respondent on the same day. 1. 2 The application is accompanied by an Affidavit Verifying facts relied upon, of even date, sworn by the 1 st Complainant herein. 1.3 Also filed along with the Summons and Affidavit, was a Notice of Motion for an Order of Committal for Contempt of Court, pursuant to Order 45, rule 5 and Order 52, rule 3 of the White Book. Furthermore, the application 1s accompanied by a Witness Statement given by the 1 st Complainant. 1.4 Before I proceed to deal with the substance of the application, I wish to make an observation on a procedural R3 issue that I cannot simply ignore. The application herein has been made pursuant to the provisions of Order 52, rule 2(2) of the White Book. There has been no allusion to the provisions of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia and the rules made thereunder. Section 85 (2) of Chapter 269 gives the Industrial Relations Division of the High Court the jurisdiction to commit and punish any person for contempt of court. The power of the Court to commit a ( person to prison for contempt is also evident in rule 50 of the Industrial Relations Court Rules. However, our rules do not have detailed procedural requirements for an application for leave to commit a person_f or contempt. The same are found in Order 52 of the White Book. 1.5 In view of the aforesaid, and since this Court is empowered to rely on the provisions of the White Book in instances where our own rules are deficient on procedural issues, the Complainants should have made their application ( pursuant to Section 85 (2) of Chapter 269 and Rule 50 of the Industrial Relations Court Rules as read together with Order 52, rule 2 (2) of the White Book. However, on the basis of the long-established principle that this Court is expected to administer substantial justice, I deem the application herein to have been commenced pursuant to the provisions of Section 85 (2) the Industrial and Labour Relations Act and Rule 50 of the Industrial Relations Court Rules as read together with the provisions of Order 52, R4 rule 2(2) of the White Book. I shall now proceed to deal with the substance of the application. 2. Complainants' evidence in support 2.1 In his witness statement, the 1 st Complainant stated that on 29th May, 2022, this Court delivered a judgment in the Complainants' favour, declaring the Complainants' dismissal unlawful and unfair. 2.2 That, the Complainants were deemed retired with effect ( from the date of their dismissal being 14th December, 2020 and that it was ordered, among other things, that the Complainants be restored on the payroll forthwith pending payment of the Complainants' full pension benefits. 2.3 The 1s t Complainant stated further, that the Respondent or its agents, being the Director of Public Prosecutions (DPP) or the Chief Administrator did not restore the Complainants on the payroll despite the fact that the Respondent maintains its own payroll system and has continued to pay its other employees using the same ( payroll system. 2.4 That, the Complainants are aggrieved and know not of any appeal or stay of execution or application for extension of time within which the judgment should be executed. Further, that this Court denied the Respondent leave to appeal and there is no known appeal before the Court of Appeal. RS 2.5 The 1 st Complainant stated that the Complainants have been demanding for compliance with the judgment on several occasions, but to no avail. That, to this end, the Complainants on August, 2022, served copies of the 8th judgments on the two Intended Contemnors, with a warning displayed on the first page that disobedience to a judgment or order would be punishable by imprisonment for contempt of court and the two acknowledged receipt thereof. ( 2.6 The 1 st Complainant stated that the Intended Contemnors are aware of the judgment as there is acknowledgment of receipt of the same on the part of the Respondent. 2.7 In the Affidavit Verifying ·Facts relied upon, the 1st Complainant confirmed that he was the author of the witness statement above. 2.8 Further in the affidavit, the 1s t Complainant asserted that on 8th August, 2022, the 2nd and 3rd Complainants served individual copies of the judgment on the two Intended ( Contemnors, for the purpose of fulfilling the prerequisites for committal for contempt of court. That, the Intended Contemnors are the authorised agents of the Respondent to remove or reinstate employees on the payroll. The 1 st Complainant referred the Court to exhibit "AM4", being copies of the letters of dismissal signed by the Intended Contemnors, as proof that the Intended Contemnors collectively demonstrated such authority. R6 2.9 The 1st Complainant further, testified that the letter signed by the Intended Contemnor shows in the last paragraph 2nd that money was reserved for payment of the Complainants' salaries in the event that the Complainants succeeded in challenging their dismissal. 2.10 Further, that the 1st Complainant monitored the WhatsApp group for the employees of the Respondent on Friday 26th August, and discovered that salaries were paid for the fourth month without the Complainants being considered. C 3. Complainants' submissions 3.1 The 1s t Complainant submitted that the Complainants intend to cite the Intended 1 st Contemnor and Intended 2nd Contemnor to be committed for contempt because the two are part of the Respondent's Board of Directors, as per Section 7 of the National Prosecutions Act, No. 34 of 2010. 3.2 Further, that the two Intended Contemnors' authority can be seen through the letters they wrote to the Complainants at the time of dismissing the Complainants. That, the first ( dismissal letter was signed by the Intended 2nd Contemnor who made an undertaking in the last paragraph that if the Complainants' appeal was successful, the Complainants would be reinstated retrospectively from the date of termination and any lost pay would be reimbursed. 3.3 That, going by that paragraph, the Complainants did not expect the Respondent to find it hard to restore them onto the payroll. R7 3.4 The Complainants further submitted that the DPP is the Chief Executive Officer of the Respondent and under Section 8 of the National Prosecution Act, she is mandated to do anything subject to the Constitution and authored a letter dated 2nd March, 2020, informing the Complainants of the final decision of the Respondent on their dismissal. 3.5 The Complainants submitted that the DPP's powers allow her to execute the decisions of this Court and therefore, the failure by the Respondent to obey this Court's order lies on C the two Intended Contemnors. That, from the time the Order was made by the Court, over 100 days have passed, despite the Order having stated that the Complainants should be restored to the payroll forthwith. That, after the judgment was delivered, the Respondent instead made an application for leave to appeal, without making an application for stay of execution of judgment. 4. Analysis and findings ( 4. 1 By the application herein, the Complainants are seeking leave of court to commence .proceedings for contempt of court against two directors of the Respondent (not being a natural person). The learned authors of Halsbury's Laws of England, 5th Edition, Volume 9(1) Reissue, paragraph 496 state as follows regarding leave for committal proceedings: No application for an order of committal may be made unless leave to malce such an application has been granted. Application for such leave must be made ex parte and must be supported by a statement setting out the R8 name and description of the applicant; the name, description and address of the person sought to be committed; and the grounds on which the committal is sought. The facts relied on must be supported by an affidavit, to be filed before the application is made. The notice of motion, accompanied by a copy of the statement and affidavit in support of the application for leave, m~st be served personally on the person sought to be committed. However, the court or judge may order substituted service, or may dispense with service of the notice of motion if it or he thinks it just to do so. 4.2 Guiding on the operation of judgments and orders, the C learned authors of Halsbury's Laws of England state as follows, in paragraph 466: As a general rule, a judgment or order which requires a person to do an act must specify the time after service of the judgment or order, or some other time, within which the act is to be done. A time need not be specified in a judgment or order which requires a person to pay money to some other person, or to give possession of any land or deliver any goods, but the judgment or order in such a case may specify a time and must do so before committal or sequestration can issue. 4. 3 The court in the case of Halford v. Hardy1 clarified that a ( , direction in an order to do an act forthwith is a sufficient expression of time under the rule. Further, it was stated in the case of Hillingdon London Borough Council v. Cutler2 that an order to do an act 'forthwith' means that , the act is to be done within a reasonable time thereafter. 4.4 The learned authors of Halsbury's Laws of England go on to state the necessity of personal service of orders 1n contempt applications in paragraph 467 as follows: R9 As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. In the case of an order requiring a person to do an act the copy must be so served before the expiration of the time within which he was required to do the act. Where the order is made against a company, the order may only be enforced against an officer of the company if the particular officer has been served personally with a copy of the order; and in the case of an order requiring the company to do an act within a specified time, the copy C must be served on the officer before the expiration of that time. 4.5 It is very important that an applicant of committal for contempt proceedings demonstrates that the intended contemnor was duly served with the relevant court order pursuant to which they are to be found in contempt of. However, there is discretion left to the court to dispense with such service if deemed fit. 4.6 The learned authors of Halsbury's Laws of England further clarify service of the court order as fallows in paragraph ( 470: A copy of the order, duly indorsed, must be served personally on the person required to do or refrain from doing a specified act. Personal service involves leaving a copy of the document with the person to be served. Personal service on a company may be effected by leaving the copy at the company's registered office. Personal service of an order upon an officer of a company must be proved before he can be committed for disobedience to an order against the company. R10 An order made against parties jointly and severally liable may be enforced against any one of them who has been served with the order, even if the order cannot be served upon the others. 4.7 Another element (preempted under the element of service above), which needs to be satisfied by an applicant who seeks leave to commence contempt proceedings is that of endorsement of the penal notice on the court order. The learned authors of Halsbury's Laws of England put it this way, in paragraph 468: C There must be prominently displayed on the front of the order a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible. The endorsement must be made on the copy of all orders which are required to be served, whether personally or not, even where the defendant on whom service is to be effected is a limited company. ,,.. 4.8 It should be noted that there is no discretion to dispense I with the requirement of endorsing the penal notice on the order. Further, according to the case of Anglo-Eastern Trust v. Kermanshahchi3 it is for the person who creates , a copy of the order for service to put the penal notice on it. 4.9 The gravity of these requirements cannot be overemphasised if one should hope to succeed on an application for leave to commence contempt proceedings. R11 It was thus, stated in the case of Beatrice Nyambe v. Barclays Bank Zambia Plc4 that: , Contempt of Court quite apart from being concerned with the authority and dignity of the court, also ultimately deals with the liberty of the individual. The consequences of disobeying court orders whether properly or improperly obtained are very serious. It is for this reason that the court must exercise great care when dealing with applications relating to contempt of court. It is therefore imperative that the rules are strictly fallowed. 4.10 I have perused the documentation filed in accompaniment C to the application herein and I am satisfied that the Complainants have fulfilled the requirements warranting an order granting them leave to commence committal proceedings. The Complainants have demonstrated that they did personally serve the judgment in question on the Intended 1 st and 2°d Contemnors and that the two duly acknowledged receipt of the same. Further, the Complainants have also demonstrated that they did indorse the penal notice when they served the Intended Contemnors with the judgment and the exhibits in the Complainants' Affidavit Verifying facts relied on clearly reveal that the penal notice was duly acknowledged by the Int ended Cont emnors. 4.11 Further, I am also satisfied that the Complainants have generally fulfilled the prerequisites tabulated under Order 52, rule 2 (2) of the White Book (and paragraph 496 of Halsbury's Laws of England) in that the application was made ex parte and was supported by a statement setting R12 out the name and description of the applicant; the name, description and address of the persons sought to be committed; and the grounds on which the committal is sought. Furthermore, the facts relied on were ably demonstrated by the Complainants' Affidavit Verifying Facts relied on. 4.12 Of course, there is also the requirement that the notice of motion, accompanied by a copy of the statement and affidavit in support of the application for leave, must be C served personally on the person sought to be committed. However, discretion is given to the court or judge to order substituted service, or dispense with service of the notice of motion if it thinks it just to do so. Seeing as this is an ex parte application, I deem the rendering of personal service of the application on the intended contemnors unnecessary. 5. Conclusion and Orders 5. 1 In view of my findings above, the Complainants' application for leave to issue committal proceedings succeeds and leave is accordingly granted. 5.2 I make no order as to costs. Leave to appeal is denied. Dated at Lusaka the 28th day of September, 2022.