Lwali and Ors v Mumbi (SCZ 7 of 2009) [2009] ZMSC 161 (31 March 2009)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CHRISP1N LWALI SAVIOUR CHISHIMBA STEPHEN MUBANGA CHITALU & 26 OTHERS } } } } AND EDWARD MUMBI (Sued as Secretary-General of Patriotic Front Party) MICHAEL CH1LUFYA SATA (Sued on his own behalf as President of the Patriotic Front Party, and on behalf of all other members of the said Party) SCZ NO. 07 OF 2009 P105 APPEAL NO 2/2009 SCZ/8/315/2008 APPELLANTS Ist RESPONDENT 2nd RESPONDENT ATTORNEY GENERAL INTERVENER CORAM: Chirwa, Silomba and Mwanamwambwa, J. J. S. On l&h February 2009 and 31st March 2009 For The Appellants: Mr. M. C. Mundashi and Ms. L. C. Kasonde of Messrs Mulenga Mundashi & Company, Lusaka. Mrs. M. Zaloumis of Dove Chambers For the Intervener: Mr. D. Sichinga, S. C., Solicitor General For the Respondents: Mr. B. C. Mutale, S. C., and Mr. L. Kalaluka of Messrs Ellis & Company. Mr. M. Pikiti of Messrs Pikiti & Company Mr. K. Bwalya of Messrs K. B. F. & Partners JUDGMENT Chirwa, J. S., delivered the Judgment of the Court. - J2 - P106 When this case commenced in the High Court, the Attorney-General applied to be joined with the plaintiffs as an intervener with an interest to serve, the interest being public interest. The High Court duly allowed him to be joined. After the judgment of the High Court, subject of the appeal in this judgment, the Attorney-General did out appeal by lodging in his notice of appeal. But before the appeal could be heard, the learned Solicitor General applied to the Court for the Attorney General to be joined as an appellant and the learned State Counsel, Mr. Mutale correctly conceded to the Attorney-General joining in as an Intervener on the ground of public interest. The Attorney-General was, therefore, joined as a party to this appeal and the learned Solicitor General represented him. Also at the High Court, there were 29 plaintiffs in all but after the judgment and the lodging of the appeal some appellants withdrew their appeals. We were informed that there were now only 17 appellants. The title to the judgment may not reflect those appellants who pursued their appeals but for the sake of expediency we have maintained the headings. This is an appeal against the discharge of interim injunction granted to the appellants on ex-parte application. To understand this matter clearly, it is necessary to give a broader background to the matter. Sometime in the year 2004 the Government of the Republic of Zambia set up a Constitutional Review Commission, commonly known and referred to as "The Mung'omba Constitutional Review Commission". The Commission duly did its work and presented its - J3 - P107 report and draft Constitution to the Government. The Government studied the report and felt that it still needed wider consultations with the people of Zambia and to this end Parliament passed the NATIONAL CONSTITUTIONAL CONFERENCE ACT, Act No. 17 of 2007 (hereinafter referred to as the Act). We will be referring to this Act in details later in our judgment. The Patriotic Front (hereinafter referred as "PF") is one of the many political parties in Zambia. The respondents held these positions shown when the matter was commenced. All the appellants are members of the PF and they contested Parliamentary Seats in the 2006 Presidential, Parliamentary and Local Government Elections on PF tickets. It is common knowledge that the PF was very much against the idea of having the NATIONAL CONSTITUTIONAL CONFERENCE (hereinafter referred to as NCC) in the composition that the government then wanted. In fact it was against the whole idea of the proposed National Referendum. It held the view that with the proposed composition of NCC the government would manipulate the proposed Constitution to favour the ruling party, MOVEMENT FOR MULTI-PARTY DEMOCRACY (MMD). However, after some negotiations and possibly compromises and promises, PF agreed to take part in the debate and passing of the NATIONAL CONSTITUTIONAL CONFERENCE Act in Parliament and the appellants did take part in the debate and passing of the Act. This was finally assented to by the President on 31st August 2007. The Act, in Section 4, sets out the composition of the conference and their various - J4 - PI 08 organizations which qualify and these are finally appointed by the Secretary to the Cabinet. Section 4 in part reads “ 4 (1) The Conference shall consist of the following members who shall be appointed by the Secretary to the Cabinet:- (a) All members of the National Assembly; (b) (c) ... ... (aa) One freedom fighter, from each province, who participated in the struggle for independence and is at least sixty-five years old; and (ab) One Councillor each of every Council established under the Local Government Act, nominated by the Council concerned.” (The last category is quoted just to show that the alphabet was completed in terms of categories of members and it was started with double letters). On appointment, members take their oaths before the Chief Justice as provided in Section 7 of the Act. The appellants as members of the Conference under Section 4 (1) took their oaths and in fact started participating in the deliberations of the NCC. The PF later changed its mind in participating in the NCC and ordered its members to stop attending its meetings and deliberations. Among those members who were ordered to stop attending the meetings were the appellants. The PF, it is said, changed its mind because the conditions under which they agreed to take part in the proceedings had not been fulfilled. The appellants and other members did not obey the Party's instructions. The party then threatened to take more rigorous step - J5- P109 of expelling them from the party for disobeying the party for them to stop attending the NCC meetings. The appellants, by various actions, commenced proceedings in the High Court and among the prayers were declarations that their membership and participation in the National Constitutional Conference was in accordance with their civic functions as Councillors/Members of Parliament and in accordance with Act No. 12 of 2006 and Act No 17 of 2007; permanent injunction restraining the respondents from expelling them from the Patriotic Front Party, in any way interfering with the appellants' rights to a peaceable enjoyment of their Constitutional and Statutory rights and civic duties both as citizens of the Republic and as Members of Parliament elected pursuant to the provisions of Electoral Act No. 17 of 2006, damages for inconvenience and sufferings caused to them by the respondents attempting to so interfere; a further permanent injunction restraining the respondents either acting by themselves or servants or agents from expelling them from the party as Members of Parliament so as to interfere with their participation in the National Constitutional Conference. The various actions by the appellants were consolidated by consent filed in Court on 17th January 2008. On ex-parte application, the appellants were granted interlocutory injunction restraining the respondents from expelling them from the party. The interlocutory order of injunction is in the following format:- “Upon hearing Counsel for the Plaintiff(s) and upon reading the affidavit of Steven Mubanga Chilatu and the plaintiffs) by their - J6- P110 Counsel undertaking to abide by any Order this Court may make as to damages in case this Court shall hereafter be of the opinion that the defendant shall have sustained by reason of this Order which the plaintiffs ought to pay IT IS ORDERED that the defendants be restrained until after judgment or until further Order of this Court in the meantime from whether by themselves or by their agents servants or any of them that is to say: (a) from expelling or otherwise dismissing them or alienating the plaintiffs from the Patriotic Party; (b)from interfering with enjoyment of their membership and privileges of belonging to the Patriotic Party; (c) from harassing or intimidating the plaintiffs.” Then there was a provision of inter-parte hearing of the interlocutory injunction summons. A lot can be said on the manner this Order was drafted. Counsel are advised to look at precedents in Atkins Court Forms. Be as it may at the inter-parte hearing, Counsel from all the parties made extensive submissions on the principles under which interlocutory injunctions are generally granted; the position of a political party as a private club and on the question of public policy or interest in relation to the appellants and the National Constitutional Conference Act, Act No. 17 of 2007. The learned trial Judge, after properly considering the principles underlying the granting of interlocutory injunctions, came to the opinion - J7- P111 that the matter centered on the appellants' participation in the NCC which the PF leadership is against. The learned trial judge felt the present case, although related to seemingly ordinarily interlocutory injunction, it was clouded with some two peculiar coatings namely, it involved a dispute between members of the same political club and a dispute about members' right to participate in the constitution making process in compliance with the current law or to stay out as ordered by the respondents. In considering the matter, he took into account that Courts take long to complete and that courts are generally not suitable for intra­ political party disputes, more especially when it came to injunctive orders as they have effect of altering the status of the parties in the interim before the cases are finally heard and determined. And that in this particular case, it involves a very small number of members of PF. He further said that both the appellants and the intervener had not sufficiently shown what irreparable injury would occur in the event of appellants' withdrawal from NCC, that consideration of these factors would have to be considered on the balance of convenience and nature of injury which appellants would suffer if the interim injunction order was lifted. He then held that the appellants had failed to satisfy him on the nature of injury they would suffer and whether such injury would not be atoned for in damages which the Court would award in the event that they were successful in the main trial. He therefore discharged the interim injunction order. It is against this discharge that the appellants have appealed. There are three (3) grounds of appeal according to the memorandum of appeal and these are:- - J8- P112 1. The learned trial Judge erred in law and fact by holding that the appellants and the Attorney General as Intervener had not sufficiently shown irreparable injury would occur in the event that their Membership of the National Constitutional Conference was withdrawn without due regard to the position that the appellants' membership of the National Constitutional Conference was a statutory imposition. 2. The learned trial Judge erred in law and fact by failing to consider the issue whether prevention of participation in a statutory constitutional process can be remedied by any measure of damages. 3. The learned trial Judge erred in law and fact by apparently relying on the “quantification of damages” as the main criteria to determine whether an injunction should be granted without taking into account the peculiar nature and circumstances of the case. On behalf of the appellants detailed heads of arguments were filed to support these grounds of appeal. Counsel also made some oral submissions and also relied on submissions made in the Court below. The Intervener relied on the submissions made by Counsel for the appellants and the submissions in the Court below. All the grounds of appeal were argued as one as they are interrelated. For the respondents, detailed heads of arguments were also filed and also the submissions made in the Court below were relied on. The gist of the appellants' argument is that the learned trial Judge erred in law in refusing injunction on the ground that the appellants had - J9 - P113 failed to satisfy him on the nature of injury they would suffer, would be such that it would not be atoned for in damages which the Court could easily quantify and award against the defendants/respondents in the event they are successful in their main action. It was argued that the learned trial Judge failed to address his mind to the fact that the main action relates to the right of the appellants to attend the deliberations of National Constitutional Conference as conferred on them by the National Constitutional Conference Act No 19 of 2007. It was stressed that as provided under Section 4 of the Act, membership by Members of Parliament to the National Constitutional Conference was mandatory. Further it was submitted that the reasons for wanting the appellants not to attend the NCC were vague and that the respondents are, under Section 14 (b), enjoined from interfering with the appellants' rights. The other leg of the argument was on irreparable injury. It was submitted under this leg that the learned trial Judge took a simplistic approach on this issue when he stated that the problem between the appellants and respondents was an internal political matter and that the Courts should not interfere and that damages will be adequate as the remuneration of Members of Parliament are known and can be assessed. It was submitted that here it was not a matter of mere status of being a Member of Parliament but a chance to participate in making a National Constitution and that such occasion comes only once in one's life time and that an injunction was not sought as a device by which the appellants attained or created new conditions favourable only to themselves. It was argued that here the appellants already had the rights of being members -J10- P114 of a Political Party, Members of Parliament and members of National Constitutional Conference and that the general membership of the PF has nothing to lose so that even on the balance of convenience, it is more in favour that the injunction be maintained so that the appellants participate in NCC pending the trial of the main action. To buttress the arguments in this appeal references were made to the cases of Miyanda vs Handahu [1993-94] Z. R. 187; Turnkey Properties v Lusaka West Development Company and others [1984] Z. R. 84. It was prayed that the discharged interim injunction should be reinstated and the status of the appellants restored until the main matter is tried and determined. For the Intervener, the learned Solicitor General adopted and relied on the submissions by Counsel for the appellants and made short oral submissions on the issue of irreparable injury or damages. For this, he also referred to submissions made in the lower Court on this point. The learned Solicitor General submitted that the question of adequacy of damages is well taken in matters of contract or employment but here it involves the right to take part in making a Constitution which is of public interest. He further argued that the learned trial Judge merely glossed over the issue of "Public Interest"\n his judgment and did not consider this interest on the Constitutional making for the country. On behalf of the respondents, as we have already stated, detailed heads of arguments were also filed and relied on. In addition there were -Jll- P115 oral submissions and we were asked to adopt the submissions made in the lower Court. Before making the oral submissions, Mr. Mutale S. C., told the Court that there were now only 17 appellants out of 29 who commenced the proceedings, the others having abandoned their appeals. In his oral submissions, Mr. Mutale, S. C., said that the learned trial Judge was very much alive with the principles on which interlocutory injunctions are granted and after considering those principles the learned trial Judge then considered the High Court decided cases dealing with injunctions in relation to Members of Parliament; cases of Nyirenda v Tilyenji Kaunda No. 2004/HP/1136 and Machungwa & Others v Mwaanga - Case No. 2003/HP/0071, where the learned trial Judges refused to grant interlocutory injunctions on the ground that damages would adequately atone the injury suffered and that being a Member of Parliament is a mere status, which status cannot be irreparable. State Counsel further submitted that there was nothing unique about this case to have different principles apply to it and that membership to NCC is not mandatory pointing out that Section 4 (1) of the Act has been misinterpreted, the only mandatory duty is cast on the Secretary to the Cabinet to make appointments and that that Section only gives qualifications adding that any citizen has a right of association and assembly and no statutory right can violate the Constitution. He concluded on this point that the interpretation put forward on behalf of the appellants of Section 4 would violate the Constitution; further that Members of Parliament are subject to their Political Party policy directives - J12- P116 and any political party has powers to regulate its members, whether they are Members of Parliament or not. In concluding his oral submissions, State Counsel submitted that there were three points in this matter, namely:- (a) the main action is for declaratory order, injunction and damages but that declaratory orders are at the discretion of the Court and that they are granted sparingly quoting the case of Sithole v Lotteries Board of Zambia [1973] Z. R. 106 as authority. (b) it was common law that injunctions are granted for preservation of something pending adding that upon the interlocutory injunction being granted the party has expelled the appellants from the party and a letter has been written to the Speaker of the National Assembly about it. (c) the appellants are asking at this stage a permanent injunction against PF before this matter is finally determined. He prayed that the appeal be dismissed. In reply, Ms Kasonde another Counsel for the appellants replied that the facts of this case make it unique in that being a Member of NCC is a statutory duty and right and the involvement of the Secretary to the Cabinet is a mere administrative action. Further, political parties or any organizations or persons are enjoined by Section 14 from interfering with the operations of the NCC and any breach of Statutory duty is an irreparable injury that cannot be atoned for by damages. Further, the learned trial Judge dwelt too much on the injury to be suffered by the -J13- P117 appellants but he never considered the injury that PF would suffer from the appellants continuing being members of NCC. It was submitted that this was a proper case to grant an interlocutory injunction. We have considered the judgment of the lower court, the detailed written heads of arguments both before us and in the Court below and also the oral submissions by Counsel, which we take into account in this judgment. To have a better feel of the matter, we went beyond the matters raised by the parties before us. We have looked at the proceedings during which the learned Attorney General joined the proceedings as an Intervener. In his affidavit in support of the application to be joined as an intervener, the learned Attorney General brought out very serious legal points and these are that the National Constitutional Conference operated under the law and the law provided as to who would be members. Among the class of members are Members of Parliament without regard from which political party they belong. That the process of the NCC is for the benefit of all Zambians living and those to be born; that this process was in public interest and therefore he was entitled to be joined to the proceedings. After the "Summons by a non-party to intervene and be added as Intervener pursuant to Order 15 Rule 6 (5) of the Supreme Court Practice, 1999 Edition" was filed on 7th January 2008, the matter was scheduled for hearing on 15th January 2008 at 09:00 hours. There is nothing in the record if these summons were heard and determined but we can safely assume from the Ruling appealed against that the learned Attorney-General was joined to the proceedings on the grounds indicated in his affidavit in support of the summons to - J14- P118 intervene. The reasons given by the learned Attorney-General for joining the proceedings are very valid and important. The Attorney-General is the first law officer in the country and it is the duty and public interest to see that the laws of the country are obeyed and this duty, power and privilege has been recognized in our common law system for a long time. For example in the case of Attorney-General v Ely Haddenham & Sutton Railway Co. [1869] 4 Ch. App.194, Lord Hatherlay, L. C. at page 199 said: “The Attorney-General represents the whole public in this sense, that he asks that the right may be done and the law observed... The question is whether what has been done has been done in accordance with the law; if not, the Attorney-General strictly represents the whole of the public in saying that the law shall be observed.” Also in the case of Attorney-General v Premier Line Ltd [1932] CL. 303 at page 313 EVE J. had this to say:- “The Attorney-General has been invoked, and he has intervened in order to assert, not only the rights of the three relators joined with him as co-plaintiffs, but of the public at large. The public is concerned in seeing that Acts of Parliament are obeyed, and if those who are acting in breach of them persist in so doing, notwithstanding the infliction of the punishment prescribed by the Act, the public at large is sufficiently interested in the dispute to warrant the Attorney-General intervening for the purpose of asserting public rights, and if he does so the general rule no longer operates; the dispute is no longer between individuals, it is one between the public and a small section of the public refusing to abide by the law of the land”. -J15- P119 Having joined the Attorney-General in this matter, in fact the Attorney-General should have taken up the whole matter himself to enforce the law, the case came out of general principles upon which injunctions are granted. In the present case, the learned trial Judge correctly considered these general principles but he misdirected himself to consider the new turn the case took of consideration of public interest. We totally agreed with the learned Solicitor General that the learned trial Judge glossed over this principle of public interest. The public Act in issue is the National Constitution Conference Act, Act No. 17 of 2007. The Act provides, under Section 4, the composition of membership of the Conference and the appellants come under category 4 (1) (a) where it is provided that all members of the National Assembly shall be members. The appellants are members of Parliament, having been elected to Parliament under the Electoral Act, another public Act. They represent masses of people in their respective constituencies. It has been agreed by all parties, and the general public of Zambia think that there is need for a good Constitution that will live to the test of time, therefore the process of making it is of public interest. The respondents have put two arguments over the Act. The first is that being a Member of the National Assembly does not compel the individual to be a member of the Constitutional Conference. The second is that there was an understanding when the appellants and other members of the PF helped to enact the Act, that certain amendments would be done later to accommodate their principles, objectives or desire and these have not been done and therefore the Act can be disregarded. -J16- P120 In support of the first argument that it was not mandatory for a Member of the National Assembly to be a member of the Conference, it was submitted that the mandatory duty in Section 4 is imposed on the Secretary to the Cabinet who is compelled, under Section 4 (1) to appoint member of the Conference. The Section reads:- "4(1) The Conference shall consist of the following members who shall be appointed by the Secretary to the Cabinet: (a) All members of the National Assembly (b) Up to (ab)” emphasis our own. It is clear to us that the mandatory obligation is on both the Secretary to the Cabinet and all identified individuals to do their respective duties. The members of the National Assembly are identifiable and we all know them from the declared Election results. The other members are merely identified by organizations. Once those organizations have identified suitable individuals to satisfy the needs of the society and their names are forwarded to the Secretary to the Cabinet and he appoints them, they are bound by the law to obey the law. It becomes a public duty. We all know that laws evolve from good morals and wishes of the society and once these are enacted into law it becomes, not only a moral duty, but a legal duty of the society to obey. Here, we hold that the mandatory duty under the National Constitution Conference is on both the - J17- P121 Secretary to the Cabinet and the identified individuals. As we have said earlier, the appellants are identifiable and as individual MPs there is a duty imposed on them to belong to the NCC. We therefore dismiss the argument that there is no mandatory duty on the appellants to obey the law. The second argument, that there were some understandings that amendments would be done after the passing of the law, cannot stand. The passage of the laws has various stages and the appellants were involved through all these stages and they, not only carried forward their personal convictions but of their constituencies and their party, PF, as well. No where were we led in arguments to the Section of the Act that its enforcement would depend on fulfillment of certain conditions. This argument, too, fails. Having held that the joining of the Attorney-General in this action, the matter was out of the ordinary principles on which injunctions are granted, we agree that the learned trial Judge misdirected himself to say that consideration of public interest could not be considered at an interim injunction stage because that would mean the continuation of breach of the law. Further, he misdirected himself when he said that the appellants and the Attorney-General had failed to show irreparable injury they would suffer. It is a question of obeying the law. There is no need to consider injury when it comes to obeying the law nor need of consideration of balance of convenience. The nature of this case was such that the learned trial Judge should have allowed the interim injunction to remain until the -J18- P122 main action is tried because it involves the obedience or non-obedience of the law. We regret to have gone in a little more details as to touch the main action, but we were left with no alternative as here the issue is obedience or compliance of the law and that the involvement of the Attorney-General in such matters, took the case out of the ordinary consideration of interim injunction. We therefore allow this appeal. The interim injunction stands until final determination of the matter. We do not consider this as an interim decision where we can deny the successful party costs to await final determination of the matter. We, therefore, award costs to the appellants and the Attorney-General to be agreed in default to be taxed. D. K. CHIRWA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE M. S. MWANAMWAMBWA Supreme courtjudge