Mwelwa Samel Chilufya v The Inspector General of Police and Ors (Appeal 50/2023; CAZ/2022/08/563; CAZ/50/2023) [2024] ZMCA 255 (12 September 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: l 2 SEP 2024 /tPft~ '>ll ( ® 0..1. CAZ/50/2023 CfSL-/?JYJ.'2 jog/ S-6~ MWELWA SAMUEL CHILUFYA APPELLANT AND THE INSPECTOR GENERAL OF POLICE 1 ST RESPONDENT THE DIRECTOR GENERAL OF ZAMBIA 2ND RESPONDENT INFORMATION COMMUNICATION AND TECHNOLOGY AUTHORITY THE ATTORNEY GENERAL 3RD RESPONDENT Coram: Mchenga DJP, Muzenga and Chembe, JJA On 30 th April 2024 and 12 t h September 2024 For the Appellant : B. Macheleta, WM Kabimba and Company For the 1 s t and 3 rd Respondent : C. Mulonda , Principal State Advocate, Attorney General's Chambers For the 2 nd Respondent: M. Mponela, In-house counsel, Information Communication and Technology Authority JUDGMENT Mchenga DJP, delivered the judgment of the court Cases referred to : 1 . Wise v . E . F . Hervey Limited [1985] Z . R. 197 2. Nyampala Safaris (Z) Limited and Others v . Zambia Wildlife Authority , S . C. Z Judgment No. 6 of 2004 J2 3 . Scher e r v . Counting Investments Limited [1986] 1 WLR 615 4 . Mutale v . Zambia Consolidated Copper Mines Limited [1993 - 1994] Z . R . 94 5 . Collett v . Van Zyl Brothe r s Limited [1966] Z . R . 65 Legislation referred to: 1 . 2 . The Cyber Security and Cyber Crimes Act No . 2 of 2021 The High Court Act , Chapter 28 of the Laws of Zambia Works referred to: 1 . The Rules of the Supreme Court of England 1999 Edit.ion . INTRODUCTION 1.1 On 6 t'1 October 2022 , the High Court (Mil i mo-Salasini , J . ) granted the appellant leave to commence judicial review proceedings against the and respondents . 1.2 Di.s~nchanted with that decision , the 2 nd respondent moved the court for an order of misj cinder . In a ruling delivered on 15 t.h December 2022 , the 2 nd re s pondent ' s app l ication was g r anted . 1.3 This is an app eal against the order of misjoinder . 2 BACKGROUND J3 2.1 On 26 t h July 2022 , obscene video clips of woman appeared online . The following day , the Zambia Police Service issued a statement that they had instituted investigations into the matter , with a view to identify the persons responsible for the publication and circulation of the videos . 2 . 2 On 30~h August 2022 , the appellant wrote a letter to the Zambia Police , enquiring on the findings of thei r investigation s . He did not receive any answer. -:, . .., Consequently , on 19 th September 2022 , the appellant made an ex-parte application , for leave to commence judicial review proceedings . He sought an order of mandamus against the p t and 2 nd re spondents , to compel them to disclose the outcome of their investigations . 2 . 4 Leave was granted to the appellant on 6th October 2022 . 2 . 5 However , on 21 s t October 2022 , the 2 nd responc;ient made an application for an order for misj oinder . The application was premised on the contention that under the Cyber Securi.ty and Cyber Crimes Act , the 2act J4 respondent ' s mandate did not extend to the conduct of investigations into any criminal activity . 2 . 6 It was also contended that appellant had failed to establish a cause of action against the respondent , because he had not clearly demonstrated the omission or decision of the 2 nd respondent , on which the application for judicial review was premised . 3 DECISION OF THE HIGH COURT 3 .1 The trial Judge considered the statutory functions of the 2nd respondent and found that Sections 5 and 15 of the Cyber Security and Cyber Crimes Act , did not give them the mandate to carry out investigations in criminal matters . 3 . 2 Consequently , she found merit in the 2 nd respondent ' s contention that it had been improperly made a party to the . proceedings . She proceeded to grant the prayer that the 2~ respondent be removed from the proceedings for misjoinder . 4 GROUNDS OF APPEAL 4 . 1 Fo ur grounds have been advanced in support of this appeal . They are couched as follows : JS (i) The learned trial Judge erred in law and fact in deciding that the appellant has failed to establish a cause of action and that there was no decision to review ; (ii) The learned trial Judge erred in law and fact in deciding that the application for judicial review by the appellant was interference in the on-going criminal investigations by the 1 s t respondent ; (iii) The learned trial Judge erred in law and fact in dismissing the appellant's application for judicial review proceedings with costs; and (iv) The learned trial Judge erred in law and fact in her decision to misjoin the 2 n d respondent from the judicia~ revi~w proceedings. 4 . 2 Having examined the tri al Judge ' s ruling which is the subject of this appeal , it is clear that the issues raised in the 2~ ground of appeal , were not considered nor determined in that ruling . This being the cas e , we fi nd the 2 nd ground of appeal to be incompetent and we strike i t out . 5 ARGUMENTS IN SUPPOR'I' OF THE APPEAL J6 5 . 1 In our asse s sment , the pt and 4th grounds of appe a l deal with the same issue ; the argument that the misjoinder of the 2 nd respondent was erroneous because the appellant did in fact disclose a cause of action aga i nst that party . 5 .2 In support of these gro unds of appeal , Mr . Macheleta submitted tha t the 2 nd respondent i s amenable to judicial review by reason of Section 5 of the Cyber Security and Cyber Crimes Act. That provision p la ces a duty on them to coordinate with law enforcement agencies , to ensure tha t there is a safe cyberspace , and investigation of cybe r incidents . 5.3 It follows , that the failure by the 2~ respondent to facilitate investigation of the circulation of the pornographic v i deos , a criminal offence , renders them amenable to an order of mandamus , by virtue o f Order 53/14/42 rule 1(1) of the Rules of the Supreme Court (RSC) . s. 4 As regards the award of costs (the 3rd ground of appeal) , Mr . Macheleta submitted that the i nstitution of these proceedings , was promp ted by the failure of J7 the police to respondent to the appellant ' s letter of d e mand . Had they r e sponde d to t he a ppellant ' s que r y , he would not have moved the court . s . s He submitted that in the circumstances , awarding the 2 nd respondent co s ts , would set a bad precedent because i t is their inaction that triggered the suit . 6 ARGUMENTS AGAINST THE APPEAL 6 . 1 In response to the arguments in support of the 1 st and 4 Lh grounds of appeal , Mr . Mponela drew our attention to Sections 5 and Part IX of Cyber Security and Cyber Crimes Act. These provisions set out the mandate of the 2 nd re sponde nt . 6 . 2 He then referred to Order 15/1/2 of the RSC and the case of Wise v. E . . H'. Harvey Limited1 , and submitted that the appellant failed to di s close a cause of action against the 2~ respondent , because it was not within their mandate to j_nves tiga te criminal offences . 6 . 3 In addition , Mr . Mulonda refer r ed to the case of Nyarnpala Safaris ( Z) Limited and Others v. Zambia W.ildlife Authority2 and submitted that th e tr ial Judge rightly found tha t a cause of action had not ,18 been establi s hed , because the decision to be impugned has not been established . The illegality , irrationality or procedural impropriety , had not been established because criminal investigations are still on goi n g . 6 . 4 On costs , Mr . Mponela referred to Order 40 rules 1 and 6 of the High Court Rules and submitted that the 2 nd respondent was entitled to costs on account of the expenses incurred after being wrongly made a party to the proceedings . 6.5 In his submissions on the question of costs , Mr . MuloDda referred to the cases of Scherer v . Counting Investments Limited3 , Mutale v . Zambia Consolidated Copper Mines Limited4 and Collet v. Van Zyl Brothers Limited5 , and submitted that it was in the discretion of the t rial Judge t o award costs , and in this case , there is no ground on which she can be fa u lted for making the award . 7 CONSIDERATIONS OF APPEAL AND DECISION OF THE COURT 7.1 At the hearing , the parties approached this appeal as i f i t was concerned with the propriety of the appellant being granted leave to commence judicial J9 review proceedings against all the respondents ; it is not concerne d with tha t issue . 7.2 This app eal is concerned with whether the trial Judge was correct when she g r anted the 2~ respondent an order of misjoinder , on the ground that they were wrongly made a party to the proceedings . 7 . 3 According to the appellant , he moved the court for an order of mandamus , after the 1 st respondent failed to respond to his query on the status of the investigations into the pornographic videos that had been circulated online on 26ch July 2022 . There is no evidence of him e v er interacting with the 2 nd respondent or the 2 nd respondent having played any role in those investigations. 7 . 4 Section 5 of the Cyher Security and Cyber Crimes Act, which sets out the mandate of the 2 nd respondent and PART IX of the Cyber Security and Cyber Crimes Act , which lists the different types of misconduct that amount to cybercrime , clearly points at the fact that the 2 nd respondent plays no role in criminal investigations . 7.5 The closest that the 2nd respondent g e ts to such J10 matters 1.s set out in Section 5 (1) (n) of the Cyber Security and Cyber Crimes Act, and it is to "coordinate with law enforcement agencies to ensure safe cyber space and investigations of cyber incidences " . 7. 6 Going by the decision in the case of ~yampala Safaris (Z) Limited and Others v. Zambia Wildlife Authori ty2 , the trial Judge cannot be faulted for finding that the appellant ' _s action against the 2 nd respondent , did not disclose a cause of action . 7 . 7 The appellant did not set out the action which was undertaken by the 2 nd respondent , which consequently stalled or delayed the criminal investigations into the publication of the pornographic videos. Further , the appellant failed to demonstrate the action which ough t to have been performed by the 2 nd respondent, and that it failed to perform that particular act , to the prejudice of the investigations . 7 . 8 In the premises , we find no merits in the isi: and 4 th grounds of appeal and we dismiss_ them . 7 . 9 As for the 3 rd ground of appeal , which deals with Jll costs , having found that the trial Judge rightly found that the appellant had wrongly joined the 2~ respondent , it is our view that she was en titled to order that he pays costs . The r e was clearly no reason for appellant to join them to this case on account of the Zambia Police Service failing to respond to his concerns over the investigation . 8 VERDICT 8.1 Having found no merits in all the grounds of appeal , this appeal fails . We dismiss it with costs . DEPUTY JCJDGE P .................. ~ ................. . K. ·~~;~ ... COURT OF APPE. AL JUDGE .................. ~t{\~ ................. .. Y. Chembe COURT OF APPE. AL JUDGE