Nickson Chilangwa (Suing as Secretary General of the Patriotic Front Party) v The Attorney General (APPEAL NO. 216/2022) [2024] ZMCA 98 (3 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL N0.216/2022 HOLDEN AT LUSAKA (L~no;li""·<. (Civil Jurisdiction) , O 3 MA~ L'jl_' J )) \.__<--- NICKSON CHILANGWA (Suin~ a: ffr}. \ . " ~ BETWEEN: ... ~ 2 t: ""l :t-.~ \- \ APPELLANT Secretary General of the Patriotic Front Party) AND THE ATTORNEY GENERAL RESPONDENT CORAM: CHASHI, MAKUNGU AND SICHINGA, JJA ON: 27th March and 3 rd May 2024 For the Appellant: C. K Simukonda and K. Aongola, Messrs Kangombe & Associates For the Respondent: E. Mwiya, Principal State Advocate, Attorney General Chambers JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Chikuta v Chipata Rural Council (1974) ZR, 241 2. X (Minors) v Bedfordshire County Council (1995) 3 ALL ER, 353 3. Allen v Gulf Oil Refining Ltd (1979) 3 ALLER, 1008 4. Steven Katuka (Suing as Secretary General of the United Party for National Development) and Law Association of -J2- Zambia v Attorney General and Ngosa Simbyakula and 62 Others - CCZ Selected Judgment No. 29 of 2016 5. Danny Pule and 3 Others v The Attorney-General and Others - Selected Judgment No. 60 of 2018 6 . Hakainde Hichilema and Another v Edgar Chagwa Lungu and 3 Others - 20 l 6/CC/0031 7. Lt. General Wilford Joseph Funjuka v The Attorney General (2005) ZR, 97 8. Corpus Legal Practitioner v Mwanandani Holdings Limited - SCZ Judgment No. 50 of 2014 9. Roadmix Limited And Kearney and Company Limited v Furncraft Enterprises Limited - SCZ Judgment No. 41 of 2014 10. Vangelatos and Vengelatos v Metro Investments Limited and 3 Others - SCZ Selected Judgment No. 35 of 2016 11. Hakainde Hichilema and 5 Others v Government of The Republic Of Zambia - 2017/CCZ/0006 12. Zamguard Security Services Limited v Darson Chitembo and 46 Others - CAZ Appeal No. 216 of 2020 13. Western Co-op Haulage Limited and Western Province Co operative Union Limited (In Liquidation) v Zambia Seed Company Limited - CAZ Appeal No. 176 of 2021 Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia Rules referred to: 1. The Rules of the Supreme Court, (Whitebook) 1999 2. The Protection of Fundamental Rights Rules of 1969, S. I No. 156 of 1969 1.0 INTRODUCTION -J3- 1.1 This is an appeal against the decision of Honourable Mr. Justice C. Kafunda, delivered on 8 th June 2022. In the said Ruling, the learned Judge dismissed the Respondent's application to raise a preliminary issue on the ground that Order 14A/2/ 2 of The Rules of the Supreme Court (RSC) 1 did not apply to proceedings by or against the State. 1.2 Furthermore, the learned Judge dismissed the main action on the grounds that the Appellant's claims implied a violation of fundamental rights guaranteed by The Constitution of Zambia1 (the Constitution). Thus, the action should have been brought under Article 28 of The Constitution by filing a petition in accordance with The Protection of Fundamental Rights Rules of 1969 1 • 2.0 BACKGROUND 2.1 The background to this appeal is that, the Appellant, the Secretary General of the Patriotic Front Party (PF), on 28th September 2021, commenced an action against the -J4- Respondent by way of writ of summons and statement of claim, seeking the following reliefs: 1. Damages for intimidating and harassing members of the Patriotic Front Party; 2. Damages for misrepresentation and defamation of character; 3. Damages for discrimination; 4. A declaratory Order declaring the Appellant cannot be compelled to disclose its source of funds used in the 2021 General Elections; that 5. A declaration that funding of the 2021 General Elections is not money laundering; 6. Any relief the court may deem/it; and 7. costs 2.2 The Respondent entered an appearance and filed its Defence on 19th January 2022. Subsequently, the Respondent filed a notice of motion to dismiss the action on a point of law according to Order 14A as read with Order 33(3) RSC on the following ground: "whether the plaintiff's action is an attempt to circumvent the Drug Enforcement Commission's Statutory authority to conduct criminal investigations relating, inter alia, to allegations -J5- of money laundering against members of the public, through the use of civil proceedings." 2 .3 The Respondent alleged that the Appellant's action was an attempt to obstruct the ongoing criminal investigations against them by the Drug Enforcement Commission (DEC) and that it constituted an abuse of court process. The Respondent further stated that investigative authorities should be allowed to carry out their statutory duties without being impeded by frivolous civil proceedings. 2.4 The Appellant refuted the claim that the action aimed to obstruct the criminal investigations carried out by DEC and neither was it to challenge DEC's legal authority to conduct criminal investigations. Moreover, there was no court order that compelled DEC to halt its investigations into money laundering activities by the public. 2.5 It was argued that the Respondent simply failed to comprehend the questions raised in the pleadings. These were novel questions that had never been adjudicated upon by any court and could not be dealt with under -J6- Orders 14A and 33 RSC. Therefore, the action could not be considered an abuse of court process as it was believed to be in the public interest. 2.6 The Appellant further argued that the court was improperly moved to determine the Respondent's application as the mode by which the court was moved was not available to matters commenced by or against the Respondent. The application was thus improperly before the court. 3.0 RULING OF THE LOWER COURT 3.1 Upon considering the application and the arguments for and against, the learned Judge observed that Order 14A/2/2 RSC, which the Respondent relied on, does not apply to proceedings by or against the State. Thus, the Respondent cited an inappropriate Order to challenge the proceedings. 3.2 Despite the learned Judge's finding on the preliminary application, the learned Judge proceeded to examine the main action and recognised that it raised significant forum issues that could not be overlooked. The learned -J7- Judge noted that claims (1) and (3) as endorsed on the writ of summons, su ggested that certain members of the PF were discriminated against by DEC due to their association with the party. 3.3 The Judge opined that an allegation of discrimination based on one's association implies a violation of the right to freely associate , as guaranteed by Article 21 of The Constitution 1 . Therefore, any action aimed at protecting fundamental rights should be brought under Article 28 of The Constitution 1 by filing a petition in accordance with The Protection of Fundamental Rights Rules 1 • 3. 4 Based on the foregoing, the lower court ruled that the Appellant's discrimination claim based on association was invalid and could not be amended du e to being brought under the wrong process. The learned Judge had recourse to the case of Chikuta v Chipata Rural Council 1 , emphasizing that the court lacks the jurisdiction to entertain an action commenced thr ou gh a mode oth er than that stipulated by the rules or statute. -J8- Fu rthermore, the court 1s precluded from 1ssu1ng d eclaration s or orders in such cases. 3.5 Further, claims (4) and (5) sought declaratory Orders that the Appellant could not be compelled to reveal the source of funding for the General Elections and that the fu nding was not related to money laundering. According to the learned Judge, the two claims were interconnected as the right to refuse self-incrimination is linked to protecting fundamental rights, specifically the right to secure protection of the law under Article 18 of The Constitution 1 . The learned Judge opined that these claims should have been enforced through the procedure prescribed by The Protection of Fundamental Rights Rules 1 • 3.6 Regarding the claim for misrepresentation and defamation , the Judge opined that these claims were linked to the claims relating to discrimination and compellation and therefore, could not be sustained separately. In light of the foregoing reasons, th e lower -J9- cou rt concluded that the main action was unsustainable and therefore, d ismissed it . 4.0 THE APPEAL 4 .1 Dissatisfied with the Ruling of the lower court, the Appellant has appealed to this Court, advancing Five (5) grou nds of appeal as follows : 1. The learned trial Judge erred in law and fact, when he neglected to address his mind to the principal cause of action relating to the alleged illegality triggered by the Drug Enforcement Commission, when it compelled the Appellant to disclose its source of campaign funding for the 12th August 2021, elections. 2. The learned Judge erred in law and fact, when he ruled that the Appellant should have commenced its action by way of petition, when part 3 of the Constitution of Zambia, the protection of fundamental rights and freedoms of the individual, do not extend or are not applicable to the Appellant in view of Article 11 -J l O- of the Constitution of Zambia as amended by the Constitution of Zambia (Amendment) Act No. 18 of 1996 as read together with Article 266 of the Constitution of Zambia as amended by the Constitution of Zambia (Amendment) Act No. 2 of 2016, Chapter 1 of the Laws of Zambia. 3. The learned Judge erred in law and fact, when he dismissed the Appellant's action by holding that the action was supposed to be commenced by way of petition, thereby contravening the case of TRANSQUIC SERVICES ZAMBIA LIMITED, NGANGA YALENGA, SAMSON ZULU AND PRUDENCE SALAMO V AFRICAN BANKING CORPORATION ZAMBIA LIMITED (T/A ATLAS MARA) CAZ - APPEAL NO. 49 /2020 which holds that: "Similarly, we see nothing wrong with the Appellant, in casu, having commenced this action by writ of summons because as stated in the Corpus Legal Practitioner -J l 1- case, where the law prescribes a specific mode of commencement for a particular type of action and that claim is pursued together with other claims by some other mode of commencement, the action for which a specific mode is prescribed can still be determined together with the other claims, so as to prevent a multiplicity of actions." 4. The learned Judge erred in law and fact when he looked at the reliefs being sought by the Appellant and holding that the actions for the protection from infringement of fundamental rights are supposed to be brought pursuant to Article 28 of the Constitution of Zambia without upholding the position that practice and procedure for commencement of proceedings is determined by the relevant statute and not by the reliefs sought as per the following cases: -Jl2- a) NEW PLAST INDUSTRIES V THE ATTORNEY GENERAL AND COMMISSIONER OF LANDS (2001) ZR, 51 b) CORPUS LEGAL PRACTITIONER V MWANANDANI HOLDINGS LIMITED - SCZ JUDGMENT NO. 50 OF 2014 c) RURAL DEVELOPMENT CORPORATION LIMITED V BANK OF CREDIT AND COMMERCE (Z) LIMITED ( 1987) ZR, 35 d) ROADMIX LIMITED AND KEARNEY AND COMPANY LIMITED V FURNCRAFT ENTERPRISES - SCZ JUDGMENT NO. 41 OF 2014. 5. The learned Judge erred in law and fact when he clothed himself with the jurisdiction to determine the propriety of the mode of commencement employed by the Appellant to commence the action when the said issue was not raised by the Respondent and proceeding to dismiss the action based on Order 18 / 19 / 26 of -Jl3- the Rules of the Supreme Court Practice 1999 Edition which order does not empower the Judge to dismiss the case. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 Mr. Simukonda, Counsel for the Appellant, relied on the filed heads of argument dated 22nd September 2020. In support of ground one, it was argued that the Respondent's preliminary application before the lower court was made under Order 14A/ 1/2 RSC. The Appellant contended that such an application was only suitable or tenable where the envisaged determination will bring finality to the main cause of action. 5.2 It was argued that the main cause of action stemmed from the Appellant's contention that DEC ventured to compel disclosure or mandatorily demanded the disclosure of political party funding in respect of the PF for the 12th August 2021, elections. 5.3 However, a perusal of the Ruling of the trial court indicates that it did not address the main cause of action while determining the preliminary application. This, in -Jl4- turn, led to the conclusion that the court determined the application based on peripheral issues that were not directly related to the proceedings before it. 5.4 In the a lternative it was argued that, the principal cause of action was fashioned to litigate the legality of compelling the Appellant to disclose its source of campaign funds, a novelty of such an action entails that it is not determinable vid e a preliminary application. That only a hearing on merits encapsulating the law and attendant facts was capable of bringing finality. In support thereof, the cases of X (Minors) v Bedfordshire County Council2 and Allen v Gulf Oil Refining Ltd3 were cited. 5.5 It was submitted that the court1s decision to determine a novel cause of action on a preliminary application was irregular a nd contradicted Article 118(2)(b) of The Constitution 1 as it appears to have prematurely ended proceedings through a technicality. 5.6 Regarding the second ground, it was submitted that the question to be considered is wheth er or not the -J15- protection of fundamental rights and freedoms of the individual, as outlined in Part III of The Constitution 1 , applies to a political party. To address this question, the Appellant referred the court to various authorities on the principles of constitutional interpretation which include Steven Katuka (Suing as Secretary General of the United Party for National Development) and Law Association of Zambia v Attorney General and Ngosa Simbyakula and 62 Others4 , Danny Pule and 3 Others v The Attorney-General and Others5 , Hakainde Hichilema and Another v Edgar Chagwa Lungu and 3 Others6 and Lt. General Wilford Joseph Funjuka v The Attorney General7. 5.7 It was submitted that all the principles followed in constitutional interpretation uphold the notion that the Constitution is the supreme law of the land, from which all other statutes derive their legality. Its interpretation differs from that of other laws. 5.8 Based on the foregoing, it was argued that the Bill of Rights does not apply to the Appellant as a political party -Jl6- since it is not a natural person. Thus, it had the right to commence legal action by way of a writ of summons and statement of claim instead of a petition, as determined by the court. 5. 9 Grounds three and four were argued together and reliance was placed on the cases of Corpus Legal Practitioner v Mwanandani Holdings Limited8 and Roadmix Limited And Kearney and Company Limited v Furncraft Enterprises9 . It was su bmitted that the Appellant had multiple causes of action arising from the same facts . One of these was that the Appellant was being compelled by DEC to reveal the source of their campaign funds, wh ich was not supported by any law. Since there was no statute which prescribed the mode of commencin g an action against DEC for its actions, the Appellant was right to commence the action by way of writ of summons. 5.10 It was argued that although an action related to d iscrimination has a specific mode of commencement, the Appellant was entitled to pursue a ll claims together -J l 7- by way of writ of summons as they were derived from the same set of facts . Therefore, the Appellant had the right to consolidate them and initiate the process by way of a writ of summons. 5.1 1 Ground five was supported by the argument that the Respondent did not object to the Appellant's mode of commencement in the court below. Further, the court failed to bring the issue to the Appellant's attention, resulting in the Appellant being denied the opportunity to present their case. 5.12 Additionally, it was argued that the lower court failed to cite the law that authorised it to raise a legal question on its own accord, particularly without providing the Appellant with an opportunity to address the same issue. According to the Appellant, without such a legal prov1s10n, the court lacks the jurisdiction to raise any question, and any orders issued without proper jurisdiction are considered null and void. In support thereof, the cases of Vangelatos and Vengelatos v Metro Investments Limited and 3 Others10 and -J18- Hakainde Hichilema and 5 Others v Government of The Republic of Zambia11 were cited. 5.13 It was submitted that, according to Order 18/19 /26 RSC, the court can only dismiss frivolous and vexatious action s . However, in the present case, the court did not find that the action was frivolous or vexatious, yet still dismissed it. It was argued that this was a serious misdirection on the part of the lower court. We were urged to uphold the appeal. 6.0 ARGUMENTS OPPOSING THE APPEAL 6 . 1 At the hearing of this appeal, the Respondent endeavoured to file heads of argument out of time. However, we found the reasons provided for the delay in filing the arguments to be unsatisfactory. Consequently, we dismissed the application. 7.0 ANALYSIS AND DECISION OF THE COURT 7 .1 We have carefully perused the record and considered the arguments advanced by the Appellant. We have also considered the impugned Ruling. • 7 .2 First and foremost, we note that the grounds of appeal as -Jl9- presented by the Appellant do not adhere to our rules, as they appear to be excessively verbose, lacking conciseness and encompassing both arguments and narratives. Order X Rule 9 (2) CAR is very clear in its terms and provides as follows : "A memorandum of appeal shall set forth concisely and under distinct heads, without argument and narrative, the grounds of the objection to the Judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, s uch grounds to be numbere d consecutively." 7 .3 In a myriad of cases, including Zamguard Security Services Limited v Darson Chitem bo and Others 12 , we have consistently underscored the necessity of avoiding the inclusion of arguments and narratives in the grounds of appeal. Such inclusion poses a significant risk of the appeal being dismissed for non-compliance. 7.4 In the case of Western Co-op Haulage Limited and -J20- Western Province Co-operative Union Limited (In Liquidation) v Zambia Seed Company Limited13 , we indeed followed through on our prior warning by expunging the off ending ground of appeal which ultimately resulted in the dismissal of the entire appeal. In casu, upon careful examination, we are of the considered view that all the grounds of appeal, with the exception of grounds two and five, are in clear violation of Order X Rule 9(2) CAR. Consequently, we have deemed it necessary to expunge the said grounds. 7 .5 We believe that grounds two and five will sufficiently enable us to attain the desired outcome that would have been achieved through the consideration of all grounds of appeal. The essence of these two grounds centers on whether the learned Judge acted justifiably 1n considering the main action while rendering a ruling on the preliminary application. -J21 - 7. 6 The preliminary application before the learned Judge was at the instance of the Respondent dealing with the following question: "Whether the plaintiff's action is an attempt to circumvent the Drug Enforcement Commission's statutory authority to conduct criminal investigations relating, inter alia, to allegations of money laundering against members of the public, through the use of civil proceedings." 7.7 The issue, in our view, was not suitable for determination without the full trial of the action as provided under Order 14A. That notwithstanding, we hold the view that, after the learned Judge considered and determined the preliminary issue as having been improperly raised for citing an inappropriate Order to challenge the proceedings, it would have been judicious for the Judge to conclude at that juncture. However, the learned Judge proceeded to examine the main action and dismiss it without giving the parties an opportunity to present their arguments on the issues. - 7 .8 This course of action adopted by the lower court was not -J22- in compliance with standard legal procedures, which require th at both parties be heard before a final decision is made. Therefore, the lower court's decision to proceed to the main action without due process was unjust and unfair to the parties. Based on the foregoing, the Ruling rendered by the learned Judge is hereby set aside and the matter is sent back before another Judge for issuance of an Order for directions, in order to allow the parties make representations. 8.0 CONCLUSION 8.1 In sum, the appeal succeeds and is accordingly allowed. Costs are awarded to the Ap llant, to be paid forthwith J. CH SHI COURT OF APPEAL JUDGE ..••......• ~ ........... . C. K. MAKUNGU COURT OF APPEAL JUDGE D. L. . SICHIN , SC COUR OF APPE L JUDGE