Banda v Chakuamba (Civil Cause 1841 of 2001) [2002] MWHC 81 (11 October 2002)

IN THE HIGH OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1841 OF 2001 IN THE MATTER OF ARTICLE 42 OF THE MALAWI CONGRESS PARTY CONSTITUTION AND IN THE MATTER OF A PETITION BY 37 DISTRICT COMMITTEES OF-THE PARTY PRESIDENT TO COINVENE AN EXTRAORDINARY ANNUAL CONVENTION OF THE PARTY MR D. T. KAMPANJE BANDA e PLAINTIFR Suing,on his own behalf and on behalf of all members of District committees of the Malawi Congress Party that petitioned the Party President to call for an Extraordinary Aninual Convention - AND - HON. GWANDA CHAKUAMBA «:eveereeeeeeeneeeeeeee DEFENDANT CORAM: MKANDAWIRE, J Kaphale of Counsel for the Plaintiff Mhango of Counsel for the Defendant Fatch Recording Officer JUDGMENT In his amended notice of motion for committal the defendant seeks that D. T. Kampanje Banda, Hon. J. Z. U. Tembo, Hon. Kate Kainja and Potiphar Chidaya be committed to prison for contempt of court. I will set out the amended notice of motion for committal and it reads: That D. T. Kampanje Banda be committed to his contempt of court in disobeying an prison for Order dated 17" June 2002 restraining him and all alleged persons by his servants or agents or otherwise any himself, Chairpersons District be to member of the Malawi Congress Party, howsoever from holding the MCP Convention planned for 22 June 2002 in Lilongwe or any other date or place until the various committees constituted under the Malawi Congress Party structures, the Constituency, respective District and Regional Committees having renewed their the mandates determination of the Originating Summons herein or until further Order. and/or until That Hon. John Z. U. Tembo, Hon. Kate Kainja and Potiphar Chidaya be committed to prison for their contempt of court in disobeying and/or aiding and abetting the defying and flouting of Orders of this court in that being members of MCP who had first hand knowledge of the contents of the injunction restraining members of the Malawi Congress Party from holding a MCP Convention called for 22™ June 2002 in Lilongwe or any other date or place until the various committees constituted under the Malawi Congress at Constituency, District and Regional Committee levels had renewed their respective mandates and/or until organizational structures Party with until further order and the determination of the Originating Summons herein or such knowledge, and some encouraged and members of the Malawi Congress Party in holding a at to 22" MCP Convention on National and College Resources participated thereof. 23™ June in Lilongwe plaintiffs assisted the 3. Of declaration that the said Mr D. T. Kampanje Banda, Hon. John Z. U. Tembo, Hon. Kate Kainja and Potiphar Chidaya with tacit knowledge assisted the of Convention, an was holding a MCP outrageous conduct of defying Court orders, thereby undermining the authority of the High Court Of and trivializing compromising the due course of justice. Malawi, which Rule Law the the of 4. 5. Consequential direction that, the MCP Convention purportedly held at the National Resources College is hereby in Lilongwe on 22" and 23 be declared void ab inition, illegal and a nullity. and the said Hon. John Z. U. Tembo, Hon. Kate That Kainja, D. T. Kampanje Banda and Potiphar Chidaya be committed to prison for their contempt of court and do also pay to the Defendant his costs of and incidental to this application and the orders to be made thereon. A brief history of the matter is as follows. Sometime in September 2001, Mr Kampanje Banda, the plaintiff herein commenced an action by way of petition in the Lilongwe District Registry under Civil Cause No. 645 of 2001 seeking a court order that a national convention of That action was the Malawi Congress Party be convened and held. dismissed as being grossly irregular, waste of time and attempt to draw the court into to a club wrangle. frivolous, vexatious and a The plaintiff then came to the Principal Registry in Blantyre. On g June 2002 he took out an Originating summons seeking: “An order mandating the defendant immediately or within such time as the court may deem fit, convene an extraordinary annual convention of the Malawi Congress Party.” the defendant, in terms of the Constitution of In the meantime before the originating summons was heard, the defendant got information that a Convention of the Malawi Congress Farty had been called to be held in Lilongwe on 22" June, 2002. According to the Malawi a convention. the convention to be held in Lilongwe on 22™ June 2002. It was his view that the convention to be held in Lilongwe was unconstitutional as the people who had convened it were not mandated to do so. only party President had not can called for Party the President Congress Party call the He as The defendant then took out an exparte summons for injunction to restrain the plaintiff by himself, his servants or agents, or otherwise any member of the Malawi Congress Party whomsoever from holding the Malawi Congress Party convention scheduled for 22" June 2002 in Lilongwe. The exparte summons was held on 17" June 2002. An injunction was granted in the following terms: holding “IT IS ORDERED that an injunction is hereby granted restraining the Plaintiff by himself, his servants, or agents, or otherwise any member of the Malawi Congress Party howsoever from the Malawi Congress Party Convention scheduled for 22 June 2002 in Lilongwe or any other date and place until the various committees constituted under the Malawi Congress Party structures the Constituency, District and Regional Committees have renewed their respective mandates and/or further until determination of these proceedings or until further order.” The order carried a penal notice in the following terms: “If you disobey this order you may be found guilty of contempt of Court and may be sent to prison or fined or your assets may be seized.” When the plaintiff was served with the order, he applied that it This was an inter parties application and it should be discharged. After hearing learned 19" June 2002. came before me on counsel on both sides, I dismissed the application. The application to discharge the order having been dismissed, it meant that the order of injunction still stood with full force and the plaintiff was aware of that. the As [ have said earlier on, this is a notice of motion for contempt of court. The defendant is alleging that despite the order of injunction being in force the plaintiff went ahead and held the convention in If the plaintiff did hold the convention Lilongwe on 22" June 2002. is being alleged then indeed he was in contempt of court as he as had disobeyed the court order. The plaintiff may not have been the with to discharge the satisfied injunction. However there were only two options open to him. The The second option was to first was to obey the order of injunction. dismissal of application the plaintiff did not have a third appeal against the dismissal. [ am making this observation because the law is very clear option. The law is that a court order as long as it stands, on court orders. must be obeyed. This was clearly stated in the case of Hadkinson vs Hadkinson (1952) 285. At page 288 Romer L J had this to say: The “It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it A party who knows of an order, whether null and void regular or irregular, It would be most cannot be permitted to disobey it dangerous to hold that the suitors or their solicitors, could themselves judge whether an order was null and void. ==+ As long as it existed it must be obeyed.” *- .. .. This case was cited with approval by Hon, Chief Justice Banda in the case of Dr Peter Chiwona vs Hon Gwanda Chakuamba MSCA A person who disobeys a court order Civil Appeal No. 40 of 2000. takes the law in his own hands and this cannot be tolerated. In the instant case the defendant alleges that the plaintiff disobeyed the court and want him to be committed for contempt. In addition to the plaintiff there is Hon. J Z U Tembo, as well as Hon. Kate Kainja and Potiphar Chidaya. However in their affidavits in opposition, they say that they are not parties to the action. that before I go any further I must consider who may be I think Clearly the person or persons liable to be held in contempt of court. against whom the order is made may be held liable if they are in is found that he breach. In this case, the plaintiff would be liable if it had disobeyed the order. just directed to the The order of injunction, however was not the Malawi any member of but to plaintiff So that any member of Congress Party. the Malawi Congress Party who had notice of the order may be found liable if they did what the order forbade. In the case of But the law goes further than that. Seaward vs Peterson (1897) 1 ch 545 it was said that a person who knowingly assists another who is restrained by an injunction in doing acts in breach of the injunction shall himself be liable to committal At page 551 North J said for contempt although he was not a party. as follows: the present case Murray was not a party to the “In action and upon that ground his counsel argued that he could not That does not An injunction to restrain a man, his servants and follow. be committed for contempt. agents, from doing an act is a common recognized form, and the injunction can be enforced against servants and action. agents and Murray’s not explain why servants they failed although are to counsel parties the in agents should be liable to be committed, though they are the action; while other persons who had not parties to be committed done exactly the same things could not because they were not parties In my any one who deliberately opinion that assists another in committing a breach of an injunction can be punished for his contempt of Court in so doing equally action. law; not the the to is with a servant or agent of the person enjoined. I think the words “servants and agents” are inserted by way of warning to such persons, not as describing a particular class of persons, but generally as describing assistants of the restrained the particular act. There is no magic in those words.” committing person from who is In the instant case, it follows that Hon. J. Z. U. Tembo, Hon. Kate Kainja and Potiphar Chidaya can be held liable for contempt if they knowingly assisted or aided the plaintiff in holding the convention although they were not parties to the action. But besides assisting and aiding they can also be held liable as members of M. C. P. since the injunction was directed at all members of the party The next question to consider is whether they were served with the order. Service is one of the essential pre requisites to a finding of contempt. It was submitted that service must be proved beyond reasonable doubt. In the case of Bramblevale Ltd (1969) 3 All ER 1062 it was said that “A contempt of court is an offence of a criminal character. A man may be It must be satisfactorily proved. To use the time honoured phrase it must be proved beyond reasonable doubt.” prison sent for to it. In their affidavits in opposition Mr. D. T. Kampanje Banda, Hon. J. Z. U. Tembo, Hon Kate Kainja and Potiphar Chidaya deny having been served with the court order. there are affidavits of Yotamu John and Jimmy Yesaya. In his affidavit Yotamu John says that he effected service on Mr Chidaya who refused to accept service. He then left the court order in Mr Chidaya’s office. Turning to the affidavit of Jimmy Yesaya, he said he was instructed by Hon. Gwanda Chakuamba to deliver a letter to the Secretary General Hon. Kate Kainja. He handed over the letter to her and saw Against these denials, Hon. Kate Kainja opening it. Attached to the letter was the order of After reading it, the Secretary General passed the letter injunction. the attachment the read John Tembo who and documents. carefully But denied. are considering the facts of the case and the circumstances thereof I Hon. to These affidavits also after I therefore find it as a fact that Mr Potiphar accept these affidavits. Chidaya, Hon. John Tembo and Hon. Kate Kainja were served with the court order. Indeed I am satisfied beyond reasonable doubt that service was done. But even if there was no service, a person may still be held liable in is he had notice of the event of breach if It recognized that service possible although one has full notice of the court order. In the case of United Telephone Company v Dale (1884) 25 ch D 778 Pearson J had this to say at 786: the court order. evade personal quite to is it “I do not believe the rule to be, and I shall not act upon it has been stated to me, that in no case will a the rule as its injunction by means of a court enforce obedience to the committal to prison, simply upon the grounds that, injunction has not been served, when it appears beyond all doubts or disputes that, the defendant is aware that the injunction has been granted, and that it is the intention of the plaintiff to enforce it.” The learned Judge went on at page 787. “.. The court would be to a great extent incapable of doing its duty to itself, as well as to Her Majesty’s subjects, if it were to say that, with perfectly accurate knowledge of the at liberty to defy the order of the court, a defendant is court’s authority, and then come to the court and say, ‘You cannot visit me for that breach of your order, because the order has not been served on me.” What is the necessity he knows of a defendant, order upon serving an if perfectly well without that service, what it is, which he is bound to obey?” Again in the case of Re Parte Langley (1879) CA 110 Thesiger L. J. had this to say: question in “The and depending upon the case particular circumstances of the case, must be, was there or was there not such a notice given to the person who is each charged with contempt of court, that you can infer from the facts that, he had notice in fact of the order which has . those who assert that there was such a been made? . notice, ought to prove it beyond reasonable doubt.” . What then are the circumstances of this case. In this case after the injunction was granted, an application was made to discharge it. Common knowledge dictates that a person cannot apply to discharge an order of which he has no notice. The plaintiff instructed counsel At to make such an application after he became aware of the order. paragraph 4 of his affidavit D. T. Kampanje Banda says as follows: I received the letter from my lawyers advising me that “ the court had refused to vacate the injunction on 1° July 2002 as the same had been sent to me by ordinary post.” Perhaps let me briefly set Who in his same mind can believe this. I granted the injunction on 17" June 2002. out the chain of events. On 19" June 2002 an application to vacate the order was made. The application was heard on 20" June 2002. I dismissed the application The convention was to be held the following day on 21° June 2002. 22" June 2002. Now Mr Kampanje Banda says in his affidavit that he received communication from his lawyers on 21° July 2002. Perhaps the plaintiff may well be I have no doubt in my mind advised that this is not a kindergarten. The whole thing was extremely urgent. that he was informed the same day, that is 21° June 2002. Let me turn to the application to vacate the injunction. That application was supported by an affidavit sworn by learned counsel. At paragraph 3 it says: fact I depone to, have been that “The statements of communicated to me by Mr Kampanje Banda, Honourable John Tembo, Honourable Kate Kainja and Mr Potiphar of whom have first hand knowledge of the Chidaya, all matters in issue herein and I verily believe the same to be true.” This can only mean that all the four persons mentioned in learned It counsel’s affidavit had full notice and knowledge of the injunction. Having given instructions to counsel to cannot be anything else. vacate the order they are estopped from claiming that they had no knowledge of the case of Re Tuck Murch v In Loosemore (1906) ch 692 Collins MR observed at page 694 that: injunction. the . “knowledge is unnecessary where there is knowledge.” higher than service . . . service is In the circumstances I am satisfied beyond reasonable doubt that Mr Kampanje Banda, Mr Potiphar Chidaya had notice of the injunction granted on 17" June the application to vacate the 2002. injunction was dismissed. They also had notice that John Tembo, Hon. Kainja Kate Hon. and I finally come to the question of breach. Did the plaintiff disobey the injunction and held the convention in Lilongwe on 22" June 2002. In answer to this question, there are two affidavits. The first deponed to by the defendant Hon. Gwanda Chakuamba and the second was deponed to by Willy Chapawamba Chisemphere. At paragraph 6 Hon. Gwanda Chakuamba says that it had come to his notice that in breach Convention was held and in obedience of the injunction an M. C. P. in Lilongwe on 22" June 2002 and 23" June 2002. In his affidavit Mr Chisemphere said that he did attend the M. C. P. convention held at The the Natural Resources College in Lilongwe on 22" June 2002. master of ceremony was Mr Kampanje Banda. At the opening of the convention, the plaintiff as Master of ceremony announced that he to compel president Gwanda court and Chakuamba to call a convention but instead the court had prevented them from holding the convention. He went on at paragraph 4 that since the party does not belong to the courts but belongs to the others gone had to a supporters the courts would be ignored and the convention would Further Mr Kampanje Banda invited the delegates to feel proceed. free to vote Hon. John Tembo as Party President. Hon. Tembo had signified his desire and willingness to serve the Party as president. And indeed delegates voted Hon. John Tembo as Party President. The plaintiff raised objections to the affidavits of Hon. Chakuamba It was submitted that the affidavit of Hon. and Mr Chisemphere. Chakuamba does not comply with Order 41 rule 5/2 of the Rules of the Supreme Court in that the source of information and grounds for the source of believe have not been disclosed. information is not disclosed. But the opening sentence of Order 41 rule 5/3 of the Rules of the Supreme Court 1997 edition reads as follows: true that is It in the practice grounds witness’s “Although information or belief are frequently not stated a deponent should never state that he believes something unless he the matter and concluded that has applied his mind to there are good grounds for his belief.” the of That is the general rule. Further down the rule it is said that a party against whom an affidavit of information or belief which omits the relevant grounds is made is entitled to make an objection. Such an objection has been raised in the instant case. However I do not view In the circumstances I accept the objection as one of substance. affidavit Hon. Mr a fabrication and Chisemphere it was submitted at length that it should not be believed. Hon. Kate Kainja attacked the affidavit on the basis that there is nothing known as Lilongwe Sub Region and Chakuamba’s affidavit. Turning the is of to there is no post of Sub-Regional Organising Secretary. She further on the he was not stated that Mr Chisemphere could not have attended the convention, as It has however been submitted on behalf of the defendant that there is nothing wrong with Mr Chisemphere’s affidavit as he was present at the convention. I caused me some anxiety. must confess However after carefully considering counsels submissions I have of delegates. affidavit that this has list come to the conclusion that the affidavit tells the truth and I accept If Mr Chisemphere attended the convention as I have no doubt he it. did, rejecting the affidavit will only mean shutting out facts that would assist the court. If corroboration is necessary, then I find the same in Hon. Chakuamba's affidavit who deponed to the fact that a To answer my earlier question, I find it convention was indeed held. the as requisite standard that and I am satisfied to fact the a injunction granted on 17" June 2002 was indeed disobeyed as the convention which was stopped did take place. Having found that the injunction was disobeyed I will now consider if Mr Kampanje Banda, Hon. John Tembo, Hon. Kate Kainja and Mr Clearly Mr Potiphar Chidayas can be held liable for the breach. this Kampanje Banda is guilty of contempt. He is the plaintiff in the Malawi Congress Party. action and the injunction was directed at him and of course all was members of injunction restraining him from holding the convention. Not only was the convention held, but that he was also a master of ceremony. [ now turn to Hon. John Tembo. He is leader of this faction of the Malawi A Congress Party. meeting of this magnitude cannot take place without his approval. [ It was within his have found that he had the notice of the injunction. powers to stop the convention so as to comply with the court order. He must have sanctioned the convention. The He did not. elected President at President. have already dealt with that aspect of the matter. Instead he had signified his willingness and desire to be the convention and he was indeed elected [ am aware that he was not a party to the action and I To allow himself to be elected President, it means that the he had encouraged that the convention be held so that he could be elevated to that post. In the Next, [ come to Hon. result I find him guilty of contempt of court. She is Secretary General of the party. all members of the party including herself. Kate Kainja. The injunction was directed at She participated at the convention. Mr Kampanje Banda called upon Mr Majoni to chair the convention through her. Before the convention was held, she had written a letter inviting Hon. Chakuamba to the convention. This means that Hon. Kainja not only participated at the convention but she had also taken part in organizing the same. Indeed the post of Secretary General is crucial to the holding of a convention. Finally I come to Mr Potiphar Chidaya. He was an administrator in the M. C. P. Apart from having notice of injunction, it is not clear what role he played in holding is Mr Chisemphere’s affidavit that he attended the convention. In any case as an administrator he could only act on instructions from politicians. I do not find him guilty. I also find her guilty of contempt. convention. mentioned even not the He in The defendant has asked this court to declare the convention held at the Natural Resources College in Lilongwe on 22" and 23 June It is submitted by the plaintiff 2002 void abinitio, illegal and a nullity. that such a declaration is unnecessary as it will pre—empt the action what the granting before not pre—empt the defendant is is the plaintiff who has pre—empted the action action. Let me refer to the case of Macfoy vs by holding the convention. United Africa Co Ltd (1961) 3 All ER 169 where Lord Denning made this observation at page 1172: no problem with The declaration will If anything it calling for. court. have the I It is in law a nullity. “If an act is void, then it bad, but incurably bad. the court to set it aside. without more ado, though it have the court declare it to be so. which is founded on it cannot put something on nothing and except it there. It will collapse.” is not only There is no need for an order of is automatically null and void is sometimes convenient to And every proceeding You to stay is also bad and incurably bad. It it follows that the declaration I am called upon to make is only for convenience, otherwise whatever was deliberated at that convention automatically The only unconstitutional, but and un ambiguous court order. In law it is as if there was no convention. | therefore declare it void abinitio, illegal and a nullity. it was held in defiance of convention collapsed. was a clear not a disgraceful and outrageous defiance of a court order. Before I come to sentence, I wish to make a few observations. This is history repeating itself. I entirely agree with the defendant that this is is time the MCP started respecting court orders. is time the MCP returned to constitutionality. is time the MCP started to learn from their past mistakes. In the case of Dr Peter Chiwona vs Hon. Gwanda MSCA Civil Appeal No. 2 of 2000 the Supreme Court warned the MCP. At page 9, Hon. Chief Justice Banda said: Indeed it It It to us that “It appears the Lilongwe convention was convened in violation of these principles. We also hold the view, considering the total facts, that the Lilongwe convention must, have been aware of court order stopping it from taking place and that it was deliberately decided to disobey the This was most reprehensible conduct and courts cannot condone it. As we have seen, had the proper procedure been followed by the respondent, some people at the Lilongwe convention would have been committed to prison for contempt, for disobeying the court order.” court order. the That warning from the Supreme Court was not enough. It is perfectly true that the MCP does not belong to the courts. Perhaps the role of courts is not appreciated. The role of courts is simply to see to it that constitutionality and the rule of law are maintained. In this case, the plaintiff commenced an action to compel the defendant, who is President of the MCP to convene a convention. Before that case is heard, a convention was unconstitutionally and in violation of a court order held in Lilongwe. authority of the court. This is indeed undermining the a of of No. Civil Case sentence the accused did The sentence was suspended for In the case of Chupa vs The Mayor of Blantyre City Assembly and others days imprisonment was passed. months on condition that not commit a similar offence. The court observed that the accused were first offenders. In the instant case the contemnors are also first offenders but there was a flagrant and deliberate defiance of court order. I have considered whether to impose a custodial sentence. In view of the fact first offenders I have decided against such a sentence. [ think that a fine would be a better alternative. However when it comes to I am in some difficulty as there is no precedent to go by. a serious matter and the fine must reflect that seriousness. I order that each of them should pay a fine of K200,000.00 and in default thereof 12 months imprisonment. fine As I said this is that they are a [ now come to costs. This is in the discretion of the court. Although I have found Mr Chidaya not guilty, this If anything his role was very insignificant. The plaintiff will pay costs of this motion. will not affect costs. Pronounced in open Court this 11" day of October 2002 at Blantyre.