Killian Mwiinga (Suing as attorney for Gregory Mainza) v Emmanuel Chama and Ors (2023 /HP/ 0505) [2023] ZMHC 13 (20 November 2023)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2023 /HP/ 0505 BETWEEN: KILLIAN MWIINGA (Suing as attorney for Gregory M APPLICANT AND EMMANUEL CHAMA MAZUBA WILSON KACHALI 50067. COMMISSIONER OF LANDS 1 ST RESPONDENT ND RESPONDENT 3RD RESPONDENT Before: The Hon. Mr. Justice Charles Zulu The Applicant (Killian Mwiinga): In Person. For the 1st Respondent: nd The 2 rd For the 3 Respondent: Respondents: & Ms. L. Nakamba­ Mr'. V. K. Luswili Kaluba of Messrs Iven Levi Legal Practitioners. No Appearance Mr. M. Chinyonga, Attorney General's State Advocate, Chambers. RULING Cases referred to: 1. Gregory v Turner [2003] 1 WLR 1149. 2. Ashmore v British Coal Corporation 3. Swallow and Pearson (a firm) v Middlesex County Council [1990] 2 ALL E. R. 990. {1953] 1 ALL E. R. 580. 4. Finance Bank Zambia Limited and v Monokandilos Another [2012] Z. R. Vol. 484. Legislation and other works referred to: 1. The High Court Rules Chapter 27 of the Laws of Zambia. 2. The Legal Practitioners Act, Chapter 30 of the Laws of Zambia. 3. The Rules of the Supreme Court of England and Wales 1965 (White Book 1999 Edition Vol. 1). 4. Black's Law Dictionary, 5. Halsbury's Law of England, 4th Edition Vol. 1, para 730, Tenth Edition, page 1084). 739, 744, pages 438, 444, 447.) 1.0 INTRODUCTION 1. 1 This ruling 1s 1n respect of an application by the first Respondent, Emmanuel Chama. The application was made pursuant to Order III rule 2, and Order XIV rule 1, of the High Court Rules (HCR) Chapter 27 of the Laws of Zambia, and section 42 of the Legal Practitioners Act, Chapter 30 of the Laws of Zambia; to ascertain the validity of this action. That is to say, determine whether the Applicant had the capacity to sue. 2.0 BACKGROUND 2.1 A brief background to this application is that, the Applicant, Mr. Killian Mwiinga took out an originating the summons against Respondents, dated March 22, 2023. Mr. Killian Mwiinga purported to sue under the power of attorney on behalf of Gregory Mainza; claiming for an order that Gregory Mainza be declared the legal owner of Plot No. 36838 SOS Lusaka. 2.2 An affidavit in support to the originating summons was deposed to by Mr. Killian Mwiinga, in which he inter alia stated: "That I am the applicant suing in my capacity as attorney for Gregory -R2- Mainza now produced and marked "KM l' is the Power of Attorney". The alleged power of attorney is dated March 7, 2023, wherein the donor, Mr. Gregory Killian Mwiinga to be his attorney Mainza, appointed to inter alia: (i) (agent), Mr. represent him in all matters, and (ii) to represent him in all legal issues and transactions. 2.3 The first Respondent, Emmanuel Chama filed an affidavit in opposition to the originating summons. 3.0 HEARING 3.1 The hearing of the main matter was slated for October 8, 2023. The Applicant, Mr. Killian Mwiinga, appeared together with his donor, Mr. Gregory Mainza, 1n a manner a legal practitioner/ advocate would ordinarily appear before court with his instructing client. 3.2 The matter did not proceed, because Counsel for the first Respondent, informed the Court that, the client intended to raise an objection regarding the locus standi of the Applicant in issuing court process on behalf of his donor, and prosecuting the matter as if he was of counsel, when in fact not. 4.0 THE PRESENT APPLICATION/ARGUMENTS 4. 1 The issues raised by the first Respondent in this application were couched as follows: (i) whether or not the Plaintiff, Killian Mwiinga who is suing as an attorney for Gregory Mainza has the legal capacity to represent the named Gregory Mainza through the Power of Attorney when he is not a qualified person; and -R3- (ii) whether or not the named Gregory Mainza should be made a party as a Plaintiff the appointed attorney. in lieu of 4.2 The backdrop Practitioners to these issues is section Act, which provides: 42 (1) of the Legal or indirectly, as an advocate or as such sue 42 (1) No unqualified person shall act or practice, directly out any summons or other process, or commence, carry on or defend any action, suit or other proceeding court of civil or criminal jurisdiction, advocate in any cause act as a Notary Public. in the name of any other person in any or act as an or or matter, civil or criminal, 4.3 As regards the first limb of the objection, Counsel for the first Respondent, Ms. Nakamba Kaluba sparked her arguments by stating that every adult individual may sue, or be sued in his or her name, except in cases where the person is mentally an alien or insolvent. incapacitated, ( 1) of the Legal Practitioners Turnerf1J, a person litigation by a power of attorney. That by virtue Act, and the case of section of Gregory v the right to conduct cannot delegate cited section 4.4 Ms. Nakamba Kaluba also 3(3)(a) of the Act, which provides: 3(3) Nothing in this Act contained or deemed to prevent: shall be construed (a) an unqualified person from appearing for and representing or matter, if duly authorised the Court or of subordinate courts; in court any party to any civil cause thereto by any rule of -R4- 4.5 And as to the meaning of unqualified person, regard was had to section 2 of the Legal Practitioners Act, which provides: "unqualified person" means practitioner in force a practicing and includes a practitioner certificate. a person who is not a who has not 4.6 It was concluded that the exception stated in section 3(3)(a) of the Act, did not apply to the Applicant because, employing the purposive interpretation, in relation to section 42 (1) of Act, it was not the intention of the law maker to allow an unqualified person take out court process in his or her name and represent a litigant through a power of attorney. He added that there is no rule that that permits the conduct of litigation through a power of attorney. It was thus argued that the Applicant had no capacity to represent the said Gregory Mainza. 4.7 The second limb of the objection is seemingly an attempt by the first Respondent to cure the alleged irregularity pointed above. Therefore, Order XIV rule 1 of the HCR was vouched, which provides: or any defendant is sued, in any capacity, it shall be expressed on the If any Plaintiff sues, representative writ. The court or a judge may order any of the person represented addition to the previous existing parties. to be made parties either in lieu of, or in 4.8 Reading the above in conjunction with Order III rule 2, of the HCR, which confers on this Court inherent jurisdiction, I was urged to substitute Mr. Killian Mwiinga with Mr. Gregory Mainza, the rightful Plaintiff/ Applicant. -RS- 4.9 Ms. Chinyonga representing the State did not object to the application. 5.10 The Applicant, Mr. Killian Mwiinga, filed his list of authorities. In opposing the application, he cited Order 5 rule 6 (2). I assume this was in reference to the Rules of the Supreme Court {RSC) o(England and Wales 1965 {White Book 1999 Edition Vol. 1), which he erroneously referred to as: the rules of the annual practice volume 1 of the supreme court 1965 Order 5 rule 6, of the RSC, under the heading: Right to Edition. Sue in Person provides: (whether or not he sues as a trustee or 6(1) Subject to paragraph (2) and to Order 80, rule 2, any person personal representative carry on proceedings or in person. capacity) may begin and in the High Court by a solicitor (2) Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any proceedings otherwise than by a solicitor. 5.11 And in his viva voce submissions, Mr. Killian Mwiinga admitted that he was not an advocate, but as an 'attorney', i.e. an agent empowered by the power of attorney. He argued that, if Mr. Gregory Mainza was denied representation through him, it was synonymous to saying: He should perish because he was staying very far. 5.12 Mr. Killian Mwiinga made reference to a ruling delivered by Newa J., involving Killian Mwiinga (himself) suing as 'attorney' for Anthony Mutika, against Muhamed Mulenga under Cause No. 2020 /HP/ 1181. I wish to interpose here and state that, the legal issues raised here were not the subject of determination in -R6- Mr. Killian that case. Perhaps, that his locus standi in that matter was not objected to, and should not be an issue here. cited the ruling Mwiinga to show 5.0 DETERMINATION 5.1 I have carefully considered the facts in issue and the arguments thereof. Firstly, I take judicial notice that, there is a growing reproachable conduct by unqualified persons abusing court processes, and making a living out of the abuses of court processes. This calls for the Court to sensitively demonstrate its vigilance, not only by censuring such conduct, but also interdicting such persons. The practise in issue is executed by misguided busy bodies that are not advocates/legal practitioners, but purport to have some knowledge of the law. These busy bodies frequently trek to our Registries to issue out court process in their personal names on behalf of aggrieved persons, or purport to defend litigants under the guise of a power of attorney. 5.2 According to Black's Law Dictionary, an instrument a titled: "power of attorney" is defined to mean: 1. An instn.tment granting someone authourity as an agent or attorney-in-/ The authourity to produce a change in legal relations by doing whatever acts are authorized. so granted; specif., the legal ability to act act for the grantor. 2. 5.3 In other words, a power of attorney is an instrument conferring authourity by deed. The person conferring the authourity is of the termed the donor of the power, and the recipient -R7- authourity, the donee (see Halsbury's Law of England, 4th Edition Vol. 1, para 730, page 438.) , 5.4 Similarly, in this matter, Mr. Killian Mwiinga is said to have been favoured with the power of attorney from Mr. Gregory Mainza to issue out court process in his name on behalf of the latter. And all the court documents were drafted, issued and signed by Mr. Killian M wiinga in his own name on behalf of Gregory Mainza. 5.5 On the return date, thus the date of hearing, Mr. Killian Mwiinga appeared in court with his donor of the power of attorney, Mr. Gregory Mainza, in a manner an advocate would stylishly appear with his or her instructing client. Apart from this case, Mr. Killian Mwiinga has taken out other actions in similar fashion as demonstrated by Cause No. 2020/HP/ 1181. In this cause, Mr. Killian M wiinga sued under a power of attorney executed by Anthony Mutika against Muhamed Mulenga, seeking an order, to compel the Defendant, Muhamed Mulenga to pay his donor the sum of Kl 18,500.00, for unpaid work done by his donor. 5.6 It is also of interest this to note that, in the course of drafting ruling, it came to my attention that Mr. Killian Mwiinga, using the power of attorney supposedly penned by Precious Bubala, took out an action in his name on behalf of Precious Bubala, against Renox Chitimpa and two others, claiming damages for loss of life of Juliet Matimba, under Cause No. 2023/HP/2013. -R8- 5.7 The first issue as I understand it is whether, Mr. Killian Mwiinga has locus standi, to sue or commence an action, in his name on behalf of Gregory Mainza under the power of attorney. The term locus standi simply means: the capacity or the right to bring an action or to be heard in a given forum (see Black's Law page 1084). Dictionary, Tenth Edition, 5.8 Mr. Killian Mwiinga is not an advocate of the High Court of Zambia, neither is he personally aggrieved by the alleged infringement perpetuated by the Respondents. Needless to say, Mr. Gregory Mainza as a natural person, enjoys the right to sue provided in his name, or sue through representation, the law permits. The right to sue, either in person or through representation is not absolute, but has limitations. This was ably demonstrated in the case of Ashmore v British Coal Corporation f2J, wherein it was held: was right to have his claim litigated or A litigant's subject to that claim not being frivolous, an abuse of process. What constitute depended on all circumstances particular claims and those that instead to public policy and interest of the case. In abuse of process was not limited to sham bona fide: were not honest or vexatious such conduct of justice. 5.9 The Court cannot play possum to impostors preying on unsuspecting litigants or colluding with potential litigants to circumvent the prohibition and restrictions spelt out under section 42(1) of the Legal Practitioners Act, under the fa9ade of a power of attorney. No agreement whatsoever via a power of attorney can waive public law. In Swallow and Pearson fa firm) v Middlesex County Councilf3J, Parker J, had this to say: -R9- There is no doubt that a man is entitled to waive or to agree to waive the advantage of a law or rule made solely for his benefit and protection. clear that requirement benefit, but is for the public benefit. no person can waive a provision or a of the law which is not solely for his It is equally 5.10 The practice of the law is strictly reserved to qualified professionals who successfully and at spent ages in law schools the law practice institute. This reservation for the is necessary public good, to protect the nobility and purity of the legal system, by ensuring that members of the public seeking legal services are sincerely and competently served by qualified professionals, rather than by charlatans. 5.11 The language employed in section 42 (1) of the Act is plain and unambiguous; that a person not qualified or who is not an advocate cannot act, or practise law either directly or indirectly, or sue in his name on behalf of an aggrieved person. I am not aware of any rule that exempts the prohibition in section 42 ( 1) of the Act, via a power of attorney, unless through an advocate. Likewise, Limited v Monokandilos Matibini J., in the case of Finance Bank Zambia and Another{4J, in his dictum, made that, he was not aware of any rule of the same observation procedure that permits the conduct of litigation through a power of attorney. 5.12 For the avoidance of doubt, it should be recorded that taking out of a representative action is permissible provided the rules of procedure so permit. For example, under Order 80 RSC, a person under disability next friend or guardian can sue through otherwise ad litem. In the present case, a proxy, as earlier by -RlO- noted, no such enactment exists, empowering an agent the right to sue in his or her name on behalf of his or her principal. In fact, the Applicant's conduct is criminalized and punishable as contempt of court under section 42(2) of the Legal Practitioners Act. 5.13 Mr. Killian Mwiinga advanced a moral philanthropic argument, that if he does not assist his donor, the donor will perish for lack of access to justice. This argument is out-rightly moribund, because it is trite law that no authourity can be given to do an illegal act. The issuance of an action in the present manner is illegal; by the fact that the Applicant issued process in his own name on behalf of his donor. 5.14 However, it should be made clearer that, a donor can generally empower a donee with the authority to sue on behalf of the donor. The caveat to this authourity is that, the action should be brought in the principal's name (see Halsbury's Law of England, 4th Edition Vol. 1, para 739, 744, pages 444, 447.) And allied to the circumstances of this case, this power and the permissible acts thereof must be construed in line with section 44 of the Legal Practitioners does not Act. The section permit an unqualified person to prepare or draw any written document relating to proceedings in law or equity at a fee or for a reward, or in expectation of any fee, gain or reward. 5.15 Reverting to the present that Mr. case, it is plain and ubiquitous Killian Mwiinga is one of the busy bodies abusing our court processes for a living, through the illegal use of the power of attorney to sue in his name on behalf of 'absentee litigants', -R11- contrary to section 42(1) of the Legal Practitioners Act. Given the volume of legal drafting, the attendant work, and the multiplicity of actions taken out in his name on behalf of others, he is not a gratuitous agent. He does it for a reward. It is worth noting that the nature of litigation herein, is not one inspired by public interest litigation, but one that is private in nature. 5.16 If the courts were to allow the status quo to prevail, the results would be similar to the disorder and anarchy of allowing unqualified persons or misguided busy bodies to carry out clinical operations and procedures in hospitals and clinics, based on some rudimentary knowledge. Whereas, the disorder in hospitals would lead to untold mortalities of unimaginable scale, in the courts of law, it would lead to countless cases of abject irreparable injustice. 5.17 It was suggested in the second limb of the argument that the irregularity be cured by substitution of the Applicant with the rightful aggrieved party. Regrettably, the irregularity is terminally incurable, because it represents a concerning reality of how the courts and the legal system can be hijacked, and abused by unqualified persons. The appropriate and commensurate sanction lies in dismissing this action for abuse of court process. And to strongly admonish the perpetrator to immediately shut down his illegal 'chambers'. 5.18 There is no room for compromise, especially where there is conscious abuse of court process by unqualified persons pretending to be advocates, or indirectly practising law. -R12- r • 6.0 CONCLUSION 6.1 In the light of the foregoing, the application is allowed to the extent that, this action is dismissed the part of the Applicant, Mr. Killian for want of locus standi, Mwiinga, and for abuse of on court process. The costs of this dismissal to be borne by the Applicant and Gregory Mainza, to be taxed in default of agreement. The dismissal does not take away Mr. Gregory Mainza's right to freshly sue in his name. 6.2 Leave to appeal granted. DATED THIS 20TH DAY OF NOVEMBER, 2023. 0 --- THE HON. MR. JUSTICE CHARLES ZULU -R13-