Ernest Ernesto Sinyolo v The University of Zambia (2024/HP/1266) [2025] ZMHC 18 (24 March 2025)

IN THE HIGH COURT FOR ZAMHIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAI{A (C'ivil . Jwisdiction) BETWEEN ,f ,P\foL!P_~~;\ ,,,,,,,ii;. \ \',t',11 f. l ,1 Ill'( 1;7'"z-·---" ' 1:1, "I V l'ntNC/l'AL 2 ~ MM 2025 2024/HP/1266 ERNEST ERNESTO SINYOLO INTIFF AND THE UNIVERSITY OF ZAMBIA DEFENDANT Before the Honourable Lady Justice S. Chocho, in chambers at Lusaka on 24th March, 2025. For the Plaintiff: For the Defendant: Mr. C Dioma of Messer Patrick Chulu Legal Practitioners Ms. T Nkhoma (In House Counsel) RULING Cases Referred to: 1. Hotelier Limited v Ody's Works Limited and Finsbury Investments Limited (HP 260 of 2011). 2. Juldan Motors Ltd & July Danobo Vs. Nasser Ibrahim & Olypa Sibongile Danobo Appeal No. 20 of 2018. 3. Emmanuel Mwamba (Suing in his capacity as Director and Shareholder of Rephidim Mining Supplies and Technical Services Limited) v Cosmas Tembo and Others Appeal No. 40 of 2023. 4. Teklemicael Mengstab and Semhcir Transport and Mechanical Limited v Ubuchinga Investments Limited Appeal No. 215 of 2013. 5. Twampane Mining Corporation Society Limited v E. M Storti Mining (2011) ZR 67. 6. Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture (Suing as aft.rm) SCZ/8/52/2014. 7. Dipak Parmar and Another v Radian Stores Limited and Another (2015) Z. R. Vol 1 228. CamScanner R2 8. Kaindu Natural Resources 'J',-ust and 9 Otlte,-s v Aaron Mulamfu and 8 Others 2021/IiP/121. 9. China Henan Inte,-national Cooperation group Company Limited v and Nationwide (Z) Limited (SCZ selected Judgment No. 8 of 2017. 10. Joltn Cltisata v Attorney-General (1990/992) ZR 15. Legislation referred to: 1. Rule 33 Sub Rule 1 {fJ and (g) of the Legal Practitioners Rules SI No. 51 of 2002. 2. Rule 32 Sub Rule 4(e) of the Legal Practitioners Rules SI No. 51 of 2002. 3. Rule 3(2) of the Legal Practitioners Rules SI No. 51 of 2002 4. Order 33 Rule 3 of the Rules of the Supreme Court of England (White Book) 1999 Edition. 5. Order 30 Rule 1 of the Hight Court Rules, Chapter 27 of the Laws of Zambia. 6. Order 5 Rule 18 of the High Court Rules, Chapter 27 of the Laws of Zambia. 7. Order 5 Rule 15 of the High Court Rules, Chapter 27 of the Laws of Zambia. 8. Order 41 Rule 1(4) of the Rules of the Supreme Court of England (White Book) 1999 Edition. CamScanner 1. INTRODUCTION R3 1.1. This is a Ruling on the Defend a nt's Notice of Molion lo raise Preliminary Issues pursuant lo Rule 33 Sub Rule 1 (f) and (g), Rule 32 Sub Rule 4(e), and Rule 3(2) of the , Legal Practitioners Rules Statutory Instrument No. 51 of2002 as read with Order 33 Rule 3 of the Rules of the Supreme Court of England (White Book) 1999 Edition. 2. BACKGROUND • 2. 1. The background to this matter as per pleadings and affidavit evidence is that the Plaintiff commenced an action against the Defendant by way of Writ and Statement of Claim on September 6ili, 2024 claiming the following reliefs; i) ii) Retirement gratuity; Superannuation benefits; iii) Payment of salaries from November 2021 to date; • iv) Retention on payroll; v) Interest on all sum due; vi) Costs; and vii) Any other relief the Couft may deem fit. 2.2. The Defendant entered appearance and filed a Defence on September 24ili, 2024. CamScanner R4 2.3. The Defendant filed u Notice or Motion lo ruise Preliminary Issues on November 22 11tt, 2024. The following issues were raised for determination: i) Whether or not Messers Patrick Chulu Legal Practitioners can act for the Plaintiff in this matter in light of professional conflict of interest that arises. ii) Should the above question be answered in the affirmative, that Messers Patrick Chulu Legal Practitioners should forthwith recuse themselves and be precluded from acting for the Plaintiff. 2.4. The matter was heard inter-parte on January 14th , 2025. 3. AFFIDAVIT EVIDENCE 3.1. The Notice of Motion is supported by an affidavit in support of Notice of Motion dated November 22 nd , 2024 deposed by one Synoden Mwale. 3 .2. The Defendant avers that during the period from which dispute arose, Mr. Chulu was employed by the Defendant as Legal Officer. 3.3. The Defendant avers that the Plaintiff herein sued the Defendant and I all matters were handled by the office of the Legal Counsel. 3.4. The Defendant further avers that Mr. Chulu's role as Legal Officer included drafting legal docum~nts and attendance of Court matters. 3.5. The Defendant avers that Mr. Chulu by virtue of having worked for the Defendant, he possesses inside confidential information and know how of the operations of the Defendant, which information can be used against the Defendant. CamScanner RS 3.6. The Defendant avers thut Mr. Chulu cunnot Luke instructions against the Defendant, a former client or Mr. Chulu. 3.7. The Defendant avers that Mr. Chulu being Managing Partner, will unavoidably continue being to be a part of lhis case. 3.8. The Defendant avers that instructions are given to a Firm as a whole and not individual lawyers of the Firm and that therefore, instructions are to the Firm, Messers Patrick Chulu Legal Practitioners. 3.9. In response, the Plaintiff filed an affidavit in opposition deposed by one Patrick Chulu dated January 10th, 2025. 3.10. The Plaintiff avers that the Defendant application is tainted with irregularities which include; i) That the Defendant wrongly made this application by Notice of Motion instead of Summons as required by the High Court Rules. ii) That the Deponent of the Defendant's affidavit is neither an advocate nor someone working in the Defendant's legal department and that paragraphs 3 to 9 of the Defendant's affidavit in support amount to hearsay evidence as the name of his informant, time and place of the information has not been disclosed as required by the High Court Rules. iii) That paragraph 9 of the Defendant's affidavit in support amounts to an argument contrary to the High Court Rules. iv) That during Mr. Chulu's tenure as Legal Officer, the Deponent to the Defendant's affidavit in support was not employed in the Legal Department and has no facts of what happened in the Legal CamScanner R6 Departme nt during Mr. Chulu's tenure m a king paragraphs 10 a nd 11 of the Defend a nt's uffid a vil in support hearsay. v) Tha l Pa ra graph 12 of the Defenda nt's affid a vit in support is speculative and not a fact. vi) That paragraph 13 and 14 of the Defendant's affidavit in support amount to hearsay. vii) That paragraph 16 of the Defendant's Affidavit in support amount to a prayer contrary to the High Court Rules; and viii) That the deponent on the Defendant's affidavit in support who deposed to the affidavit in his capacity as an employee of the Defendant indicated his residential address instead of office address contrary to the High Court Rules . 3 . 11. The Plaintiff avers that Mr. Chulu was employed by the Defendant on a 6 months short-term contract from July 1st, 2018 to December 31 st, 2018 to help reduce the work load in the Legal Counsel's office. Further, that Mr. Chulu was called for an extended 6 months contract from February 1st, 2019 to July 31 st , 2019. 3.12. The Plaintiff avers that at the time Mr. Chulu was employed as Legal Officer by the Defendant; the Legal Counsel was responsible for delegating work and supervisi1;1g the work delegated. Further, that Mr. Chulu had no power or authority to prosecute any matter without the express authority of the Legal Counsel. 3.13. The Plaintiff avers that on perusal of exhibits marked as "SM5' in paragraph 10 of the Defendant's affidavit in support shows that the CamScanner Jt7 Plaintiff su ed th e Defe11d1111t 1111<l er c11uHc number 2019 / HP /04 5 1 whi ·h th' Dcfc11dn11l did 11ot it1Lc nd Lo defe nd und th e muller wuH subseque ntly dismissed for wunl of prosecution . 3 . 14 . The Plaintiff avers tha t from the lime Mr. Chulu left the Dcfcnda nt'H institution om July 31 st , 2019, he ha s represented litigants suing and being sued by the Defendant without any objections from the Defendant. 3 . 15. The Plaintiff avers that it is settled law that an advocate does not owe any loyalty to a former client. 3.16. The Plaintiff further avers that Mr. Chulu was never part of management while he worked for the Defendant and therefore, he was not privy to any confidential information and that if there was at anytime any confidential information disclosed to him, then it is not relevant to this matter. 3.17. The Plaintiff avers that there is no risk that Mr. Chulu will disclose any confidential information if any at all, as the Plaintiffs claim is for • terminal benefits and the matter hinges on common facts . 3 . 18. The Plaintiff avers that if this Court finds that there was confidential information given to Mr. Chulu during his tenure, he undertakes not to disclose such information to the Plaintiff. 3.19. The Plaintiff avers that this matter hinges on interpretation of the law as the facts lo this matter are common to the parties and that there arc no facts to be disclosed other than the facts that have already been disclosed in this matter. CamScanner RS 3.20. The Plaintiff avers thut Lhc Dcfendunl hus foiled lo show the confidential information it alleges Mr. Chulu was exposed to. 3.21. The Plaintiff avers that there is no law that stops a lawyer from taking instructions against a former client. 4. THE LAW 4.1. I have had occasion to review and consider the application, having heard counsel for the Defendant and Plaintiff, read the affidavits, skeleton arguments and authorities cited by the parties for which I am grateful but will not reproduce the same in full as they are on record. 4.2. The Defendant submits that this Court has the jurisdiction to determine a matter on a point of law as relates to the provisions on conflict of interest placing reliance on Order 33 Rule 3 of the Rules of the Supreme Court of England which provides as follows: "The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause a matter, may give directions as to the manner in which the questions or issues shall be stated." 4.3. The Defendant submits that Rule 33(1) of the Legal Practitioners Rules prohibits a practitioner from accepting any brief if there appears to be some conflict or significant risk of some conflict either between the interest of the practitioner or of any partner or other associate of CamScanner R9 th e practition er a nd some other person or between the interes t of any one or more of their clients. 4.4 . The Defendant submits that a conflict of interest arose when Messcrs Patrick Chulu Legal Practitioners took an instruction against the Defendant who is a former client of Mr. Chulu who 1s a Managing Partner at Messer Chulu Legal Practitioners. 4.5. The Defendant submits that Messers Patrick Chulu Legal Practitioners to take up an instruction against the Defendant, a former client of Mr. Chulu places the Law Firm squarely in breach of Rule 33(1)(f) and Rule 32(4)(e) of the Legal Practitioners Rules. 4.6. The Defendant further submits that Messers Patrick Chulu Legal Practitioners are caught up in a web of having created a conflict of interest by taking up instructions against a former client and places reliance on the cases of Hotelier Limited v Ody's Works Limited and Finsbury Investments Limited (HP 260 of 2011) 1, Juldan Motors Ltd & July Danobo Vs. Nasser Ibrahim & Olypa Sibongile Danobo Appeal No. 20 of 20182 and Emmanuel Mwamba (Suing in his capacity as Director and Shareholder of Rephidim Mining Supplies and Technical Services Limited) v Cosmas Tembo and Others Appeal No. 40 of 20233 which I have taken note of. 4.7. The Defendant submits that U:ic only way to cure conflict of interest is by recusal of the practitioner from acting for the client. • CamScanner RlO 4 .8 . In response , the Pla intiff submits th a t lhe Defendant's a pplica tion wa s a ch a mber applica tion a nd wa s supposed lo be commenced by Summons as per Order 30 Rule 1 of the Hight Court Rules. 4.9 . The Plaintiff further places reliance on the case of Teklemicael Mengstab and Semhar Transport and Mechanical Limited v Ubuchinga Investments Li:rnited Appeal No. 215 of 20134 and submits that the Defendant violated Order 30 Rule 1 of the Hight Court Rules. 4.10. The Plaintiff submits that the averments by the Defendant in the Defendant's affidavit in support of Notice of Motion in paragraphs 3 to 14 amount to hearsay as the deponent is neither an advocate nor has he worked in the Legal Department and has no personal knowledge of the facts. Further, that the deponent was required to state the name of the informant, the time and p·lace when the information was given as required by Order 5 Rule 18 of the High Court Rules. 4.11. The Plaintiff submits that paragraph 9 of the Defendant's affidavit in support amounts to an argument and that Paragraph 12 is speculative and that paragraph 16 amounts to a prayer contrary to Order 5 Rule 15 of the High Court Rules. 4 . 12. That Plaintiff further submits that the Defendant's affidavit in support is irregular as it reveals that the Defendant's deponent omitted to state the address at which he works as per the requirement on Order 41 Rule 1(4) of the Rules of the Supreme Court of England. CamScanner Rll 4.13. The Plaintiff submits that when il comes lo obeying Court Rules, il is trite that parties have no choice but lo obey Court Rules and placed reliance on a plethora of cases which among the include Twampane Mining Corporation Society Limited v E. M Storti Mining (2011) ZR 675 and Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture (Suing as a firm) SCZ/8/52/20146 • 4.14. The Plaintiff submits that for a Court to remove a legal practitioner from representing his new client, the former client has a duty to prove the following: i) That the former client gave the lawyer confidential information which it has not allowed him to disclose; ii) That the said information confidential information is relevant to the subject matter in casu; and iii) that there is high risk of disclosure of the confidential information. In making this submission, the Plaintiff places reliance on the cases of Dipak Parmar and Another v Radian Stores Limited and Another (2015) Z. R. Vol 1 2287 and Kaindu Natural Resources Trust and 9 Others v Aaron Mulamfu and 8 Others 2021/HP/121 8 • 4 . 15. The Plaintiff submits that the Defendant has failed to prove that it gave confidential information to Mr.· Chulu during his tenure as Legal Officer of the Defendant. Further, the Plaintiff submits that even assuming it CamScanner R12 did, the alleged conl'idenlinl inf'onn11Lio11 rcluling Lo cuuHc number 2019/HP/0451 is diffcrcnl from Lhis mallcr. 4 . 16. The Plainliff submils Lhal Lhc cases the case of; Hotelier Limited v Ody's Works Limited and Finsbury Investments Limited (HP 260 of 2011), Juldan Motors Ltd & July Danobo Vs. Nasser Ibrahim & Olypa Sibongile Danobo Appeal No. 20 of 2018 and Emmanuel Mwamba (Suing in his capacity as Director and Shareholder of Rephidim Mining Supplies and Technical Services Limited) v Cosmas Tembo and Others Appeal No. 40 of 2023 relied on by the Defendant are not applicable to this matter stating that the cases speak to existing client conflict and the same subject of proceedings which can be distinguished from this case. 4.17. The Plaintiff submits that the Defendant has failed to prove that there was confidential information furnished to Mr. Chulu and if at all, that was relevant to this matter and calls this Court to dismiss the Defendant's application . 5. COURTS DECISION • 5.1. I have carefully considered the arguments herein for and against the application. The issues for determination are reproduced in 2.3 above. 5.2. Before I delve into determining the Defendant's application, I shall first address the issues raised by the Plaintiff in 3.11 above. CamScanner Rl3 5.3 . Th e Pla intiff co n tends that th e Defendant's a ppli ca tio n is impro perly befo re thi s Court as it is a cha mber a pplicati on made by way of Notice of Mo tion instead of Summons a s per the requirement in Order 30 Rule 1 of the High Court Rules. 5 .4 . In relation to how a pplications made pursuant to Order 33 Rule 3 of the Rules of the Supreme Court of England should be made, the Suprem e Court m the case of China Henan International Cooperation group Company Limited v and Nationwide (Z) Limited (SCZ selected Judgment No. 8 of 20179 , h ad the following to say: "The preliminary issue that was before the court below was made by way of a notice to raise preliminary issue pursuant to Order 33 rule 7 of the White Book. The said Order is preceded by Order 33 Rule 3 which permits a court to determine a preliminary issue before, at or after the trial. Whilst the former gives the court jurisdiction to entertain a preliminary issue, the latter sets out what steps the court can take where there is merit in the preliminary issue raised and its determination substantially disposes of the matter. In terms of how such preliminary issues should be laid before the court, which is in dispute under ground 2, the explanatory notes to Order 33 rule 3 sub-rule 1 and Order 14A of the White Book are instructive. The former Order states that Order 33 rule 3 should be read with among other orders, Order 14A. While Order 14A(2) states that applications tabled before the court for determination of any question of law at preliminary stage may . be made by summons or motion or orally in the course of any interlocutory application to the court. Therefore, the Respondent had a choice of commencing • CamScanner Rl4 the application for a preliminary issue either by summons or motion. The finding we have made in the preceding paragraph brings us to the next question, which is on how motions are to be commenced. The answer to the said question lies in the practice and procedure both in this and other courts that motions are brought before the court by way of notice. There is no rule of law or practice, so far as we are aware, that requires commencement of motions by way of summons only. Consequently, we are of the considered view that the Respondent was on firm ground when It tabled the motion by way of a notice. Further, even though the learned High Court Judge did not pronounce himself on the issue we feel that this omission was not fatal nor did it prejudice the Appellant in view of our finding that the application was properly presented before the court". 5.5. I am fortified by the authority in the China Henan9 case and find that the Defendant's application is properly before me. 5.6. The Plaintiff also submitted that the Defendant's affidavit in support of Notice of Motion to raise preliminary issues is irregular as the deponent included his home address and omitted to state the address at which he works as per the requirement on Order 41 Rule 1(4) of the Rules of the Supreme Court of England which provides as follows: In the case of a deponent who is giving evidence _in a " professional, business or other occupational capacity the affidavit may, instead of stating the deponent's place of residence, state the address at which he works .... " CamScanner Rl5 ;,7. It is trite that rules of Court must l>c Hlriclly followed. I um however of the considered view lhal lhc issue raised by lhe Plaintiff as relates to the address docs nol go lo the rool of this matter and Courts on several occasions have held lhal Procedural rules should not prevent cases from being heard on their merits. The Supreme Court in the case of John Chisata v Attorney-General (1990/992) ZR · 1510 held as follows: "We cannot stress too strongly what we have said in the past, that such cases should wherever possible, and where there is no prejudice to either party by some irregularity, be allowed to come to trial so that the issues may properly be resolved. Interlocutory orders which prevent this should be avoided." 5.8. I am of the considered view that the Defendant's deponent's failure to indicate the business/work address in the affidavit does not prejudice the Plaintiff in anyway and is not fatal. 5.9. The Plaintiff further raised issl}e with paragraphs 3 to 14 of the affidavit in support of Notice of Motion and is of the view that they contain hearsay evidence. On perusal of the affidavit, I find that paragraphs 3,4,6 and 9 contain hearsay evidence and I order that Paragraphs 3,4,6, and 9 be expunged and no reliance shall be place on them. 5.10. Further, I do not find the remaining paragraphs to contain hearsay evidence as the statements/ averments contained therein are information which can be known to employees of an organisation/ institution even if one is not part of the Legal Department. CamScanner R16 The deponent hus ulso cutegoricully Hluled/ ucknowlcdged which information was derived from Legal Counsel. 5.11. The Plaintiff also contends that paragraph 12 of the Defendant's affidavit is speculation. I don't see any speculation as it is a matter of common knowledge that a Managing Partner has a role to oversee affairs of a Law Firm. By virtue of this role, Managing Partners have control over matters the Firm handles. 5.12. Having found as above, I shall proceed to determine the issues raised by the Defendant in its Notice of Motion to raise preliminary issues. The question for determination is whether Messers Patrick Chulu Legal Practitioners acting for the Plaintiff give rise to conflict of interest or potential of it. 5.13. A conflict of interest is a situation which is likely to affect the judgment of the lawyer/legal practitioner as relates to his/her loyalty to a client, prospective client or former client. 5.14. The Legal Practitioners Rules contain provisions which speak to conflict of interest. Section 33 (f)&(g) of the Legal Practitioners Rule SI No . 51 of 2002 provides as follows: "{1)A Practitioner shall not accept any brief if to do so would cause the Practitioner to be professionally embarrassed under the following circumstances_ J} there is or appears to be some conflict of significant risk of some conflict either between the interests of the practitioner, or of any partner or other associate of the practitioner and • • CamScanner lll 7 some other person or· between the interests of any one of more of their clients; or· g) the ,natter is one ht which there is a risk of a breach of confidences entrusted to the practitioner, or to any partner or associate, by another client or where the knowledge which the practitioner possess of the affairs of another client would give undue advantage to the new client". 5.15. What can be understood from lhe above provisions is that a Legal Practitioner is precluded from taking instructions from a client where it appears lhal there is conflict of interest or potential of it. Further, were there is an apparent breach of confidentiality, a Legal Practitioner I should avoid taking instructions. 5.16. I am of the considered opinion that a Lawyer's duty toward his/her client to avoid conflict of interest and breach of confidentiality does not only apply to existing clients but also extend to former clients. The Court in the case of Dipak Parmar and Another v Radian Stores Limited and Another (2015) Z. R. Vol 1 228 8 stated that: • "The Court will look at the duty of confidentiality as an essential facet of the fiduciary duty and this duty survives the termination of a retainer". Further, the Court in the Dipak case went on lo say as follows: "there must be something in the communication between the lawyer and the person seeking restraint which give rise to trust or to stamp it with confidentiality. We do not see it in this case. It must be said that the Courts will be slow to interfere with prima facie rights of litigants to choose their lawyers by unnecessariiy protecting confidentiality which is CamScanner I • Rl8 not there. The Courts will only interfere to protect the undue risk of unfairness of disadvantage which the circumstance might reveal to exist, which is lacking in this case." 5.17. In light of the above authority and on perusal of the record, I do not sec anything of a confidential nature that is likely to be used against the interests of Mr. Chulu's former client, the Defendant herein. Further, I do not see any conflict of interest or potential of it. 5.18. The Defendant has not disclosed any evidence to show that there is a potential conflict of interest or breach of confidentiality for this Court to interfere with the Plaintiff's right to choose legal representatives of his choice. 5.19. I therefore find that the Defendant's application is bereft of merit and I accordingly find that there is no conflict of interest. 6. CONCLUSION 6.1. For the foregoing reasons, I hereby dismiss the Defendant's application. 6.2. Each Party to bear its own costs. Delivered at Lusaka on the 24th of March, 2025 . S. CHOCHO HIGH COURT JUDGE r. ( . I CamScanner