Chitalu Sampa MP and Anor v Newstead Zimba (sued in his capacity as National Secretary for the Movement for Multi Part Democracy) (2003/HP/0771) [2004] ZMHC 6 (25 August 2004)

.,,. IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL R,EGISTRY AT LUSAKA 2003/HP/0771 BETWEEN: CHITALU SAMPA MP DR PETERMACHUNGWA MP AND I I I FIRST PLAINTIFF SECOND PLAINTIFF r NEWSTEAD ZIMBA (sued in his capacity as National Secretary for the Movement for Multi Party Democracy) DEFENDANT FOR THE PLAINTIFFS MR. R. SIMEZA - SIMEZA, SANGWA AND ASSOCIATES FOR THE DEFENDANTS MR. M. MUNDASHI - MULENGA MUNDASHI AND CO. RULING Authorities referred to: 1. Atkins Court Forms. Second Edition. Volume 30-1994 issue, pages 20-21. 2. Order 15, Rule 7, of The Rules of the Supreme Court - 1999 Edition. r The Plaintiffs are seeking an order for leave to carry on Contempt proceedings and to substitute the Contemnor. The application is made under Order 15, Rule 7 of the Rules of the Supreme Court, 1999 Edition. The Contempt proceedings were filed on 4th December 2004, against Mr. Samuel Miyanda (deceased), then National Secretary of the Movement for MultiParty Democracy (MMD). Before the Contempt proceedings could be heard, Mr. Miyanda passed away. Initially, the main action was commenced in a representative capacity against Mr. Newstead Zimba, who was then It is common knowledge, that over one Party National Secretary. year ago, Mr. Zimba ceased to be National Secretary for the MMD. This was as a result of his appointment to the diplomatic service. He was succeeded by Under ordinary circumstances, the Plaintiffs should have applied for an amendment to remove Mr. Zimba and substitute him with the late Mr. Miyanda. Similarly, when Mr. Miyanda died, his name should have been substituted with that of the current National Secretary, Major Kachingwe. I am surprised that this was not done. Todate, Mr. Zimba still appears as the Defendant. late Mr. Miyanda. the In his written submissions, in this application, Counsel for the Plaintiff has stated: "The application is not about substitution of the Defendant to the main action as the affidavit of major Richard Kachingwe seems to suggest. 11 I am surprised by this argument. Counsel is infact intimating that his clients intend to continue the action in its current irregular form as regards the Defendant. This application should have been mainly about substitution of the Defendant to the main action. That move is long overdue. The legal position regarding change of parties is this: "Special provisions apply where a change of parties arises by reason of death or bankruptcy of a party or by reason of the fact that a party's interest or liability passes to another by assignment, transmission or devolution. It is specifically provided that an action shall not abate by reason of death or bankruptcy of a party ................... Where at any stage the interest or liability of party is assigned or transmitted or devolves upon another person, the Court may order that other person to be made a party for the proceedings to be carried on as if that person had been substituted for the party. The Court may only make such an order (generally known as an order to carry on) where it is necessary to ensure that all matters in dispute in the action are determined ................ An order may be made under these provisions even after judgment." r See: Atkins Court Forms. Second Edition. Volume 30. 1994 issue, at page 20~ Sub heading 17: Change of parties. This passage makes reference to the provisions of Order 15 Rule 7 (2) of the Rules of the This is the very authority under which this Supreme Court. application is made. In the instant case, the initial Defendant, in representative capacity, was Mr. Zimba. On 21 st November 2003, the Plaintiffs obtained, before another Court, a judgment in default of defence. That default judgment is in the form of a declaration and an injunction. It carries liability. That liability devolved upon the late Mr. Miyanda when he took over the position of National Secretary of the MMD from Mr. Zimba. Evidence on record shows that on 31st November 2003, the National Executive Committee (NEC) of the MMD met and made decisions which the Plaintiffs say amount to breach of the default judgment. That is the very issue which prompted the Plaintiffs to file an application for Contempt against the late Mr. Miyanda. Upon his death, liability for the default judgment devolved upon his successor, Major Kachingwe. Therefore, it is not in order for the Plaintiffs to confine this application to substitution of Contemnor and leave out the Defendant to the main action. t- Given the foregoing, I hereby order that major Kachingwe be substituted for Mr. Zimba, as the Defendant to the main action. This order is made pursuant to Order 15, Rule 7 of the Rules of the Supreme Court, 1999 Edition. I now move on to the application to substitute Contemnor. On behalf of the Defendants Mr. Mundashi argued that such a relief is not available under Order 15, Rule 7. He cited London Association for protection of Trade v Greenlands Ltd (1916) 2 AC 15. That case was decided in 1916, under Order 16, Rule 9. I agree with Mr. Mundashi that an application for the substitution of the Contemnor is not squarely covered by Order 15, Rule 7. In my view, this order and Rule directly governs substitution of parties to main actions. However, I am of the view that when a party to the case has a complaint regarding alleged non compliance with a Court judgment or order, against specified person or persons, the Course of Justice demands that such a complaint be heard on merits. In my view, the Plaintiffs' complaint in this case against the perceived contemnors, deserves such hearing. Accordingly, I hereby use my inherent jurisdiction and discretionary powers the substitution of the perceived contemnors and to carry on with the Contempt proceedings. However, this is subject to a qualification. President Levy Mwanawasa, the late Dr Syamujaye and the late Mr. Golden Mandandi are removed from the list of perceived contemnors. to grant leave for President Mwanawasa is removed from the list because under Article 43 of the Republican Constitution he legal proceedings. The other two are removed from the list because they passed away. immune from is There are two observations I wish to make here. One is that from the look of things, the Plaintiffs wish this case to end at judgment in default of defence. The Defendants have filed an application to set aside that default judgment. This is an indication that they want the case to proceed to, and end at, trial on merits. The Contempt application is blocking progress of the case towards trial on merits. The earlier it is heard and disposed of, the better for the cause of justice. Second is that due to a pile of interlocutory applications, the Court file has grown big. At this early stage, it is now in two volumes; a situation I find less than desirable. I grant leave to either party to appeal to the Supreme Court and order that costs be in the cause. Delivered in Chambers this 25th day of August 2004.