Post Newspapers Ltd v Banda (SCZ Judgment 25 of 2009) [2009] ZMSC 171 (16 October 2009)

(515) SCZ JUDGMENT NO. 25 OF 2009 APPEAL NO. 4 OF 2009 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: POST NEWSPAPERS LIMITED APPELLANT AND RUPIAH BWEZANI BANDA RESPONDDENT CORAM: Chirwa, Chitengi and Silomba, J. J. S. On the 18Ih June and 16th October, 2009 For the Appellant: Mr. K. M. G. Chisanga of K. M. G. Chisanga Advocates. Mr. R. Mainza of Mainza and Company. For the Respondent: Mr. C. L. Mundia, S. Cr, of C. L. Mundia and Company. JUDGMENT SILOMBA, J. S., delivered the judgment of the Court. Cases referred to: 1. Chikuta vs. Chipata District Council (1974) ZR, 241 2. Mpou vs. Munrou (1979) ZR, 211 3. Becker vs. Noel (1971) AER, 1248 4. WEA Records Ltd vs. Vision Channel 4 Ltd Works referred to: 1. Order 32, rule 6, of the RSC 2. Order 52, rule 2, of the RSC This appeal is against the ruling of the High Court dated the 3rd October, 2008 in which the learned trial Judge dismissed two preliminary J 2 (516) issues raised by the appellant. Details of the preliminary issues will be given later in the judgment. The background to the case is that on the 26 September, 2008, the • th respondent filed a writ of summons and a statement of claim in the High Court, seeking damages for alleged defamation by the appellant newspaper. Simultaneously with the foregoing documents, the respondent applied for an ex parte order of interlocutory injunction to restrain the appellant newspaper, through its servants, agents, directors or otherwise from publishing or allowing publication of-libelous words against the respondent or printing, circulating, distributing or otherwise publishing words similar or 41 the same as the ones earlier published and contained in the editorials and reports of the appellant newspaper against the respondent until the matter was heard inter partes. The ex parte order was granted on the 27 of September, 2008 and the learned trial Judge set the 3rd October, 2008 as the return day for the determination of the application for an interlocutory injunction inter partes. On the 28th and 29th of September, 2008, the appellant newspaper allegedly published what the respondent thought were highly defamatory articles of him, including the opinion of the 29 September, 2008. In the view of the th J 3 (517) respondent, the article of the 29 September, 2008 was a total defiance and th disregard of the ex parte order granted by the court earlier on. Without delving into the nature of the alleged defamatory words complained of, because that is for trial and, therefore, irrelevant to the maters at hand, the respondent, through counsel, filed summons for leave to commence contempt proceedings pursuant to Order 52, rule 2, of the Rules of the Supreme Court, 1999 Edition. The summons was accompanied by a certificate of urgency, an affidavit in support sworn to by counsel for the respondent and a statement in support of the application for leave to commence contempt proceedings. As shown above, the summons for leave to commence contempt proceedings was filed before the 3rd October, 2008, the return day for the hearing of an application, inter-partes, for an interlocutory injunction. On granting leave to commence contempt proceedings, the learned trial Judge set the hearing of the motion for committal for the 3rd October, 2008, probably to enable him dispose of the two applications on the same day. However, on the 2nd October, 2008 the appellant filed a notice of intention to raise preliminary issues during the proceedings for contempt of J4 (518) court set for the 3rd October, 2008. The preliminary issues the appellant sought to raise, as per his notice of intention, hinged on: - a. whether it was proper for counsel to depose to an affidavit in this highly contentious matter; b. whether the ex parte order for leave to commence contempt proceedings granted to the plaintiff (now respondent) on 30 th September, 2008 must be vacated on the grounds that an ex parte order is a provisional order liable to be vacated on sufficient grounds. On the 3rd October, 2008, when the two applications came up for determination, the trial court was obliged to dispose of the preliminary issue first as a matter of procedure and because the outcome of the preliminary issue might affect the motion for committal, especially if it were successful. In arguing the two preliminary issues, Mr. Mainza, counsel for the appellant newspaper, submitted on the first issue while Mr. Chisanga, another counsel for the appellant, submitted on the second issue. After referring to the issues raised in the various paragraphs of the affidavit of Mr. Mundia, S. C., in support of the respondent’s application for leave to commence committal proceedings against the appellant newspaper, which we shall not refer to in this judgment because they are matters for trial, Mr. J 5 (519) Mainza told the learned trial Judge that the allegations deposed to by the State Counsel were highly contentious; that as such they were allegations that could only be proved by way of evidence adduced by a party to the proceedings. He submitted that according to precedent the High Court and the Supreme Court had, on many occasions, advised counsel to desist from swearing affidavits on behalf of their clients in matters that were highly contentious. Counsel cited the cases of Chikuta Vs. Chipata District Council(1) and Mpou Vs. Kenny -Munrou(2) in aid of the foregoing argument. As a highly contentious case, Mr. Mainza did not see any justification in the State Counsel swearing an affidavit on behalf of his client who was within the country and who had the fastest means of transport. If, on the other hand his client, as an aspiring Presidential candidate, was in the field campaigning, Mr. Mainza thought that the State Counsel should have travelled to where the respondent was to facilitate the swearing of the affidavit by the respondent himself. Conversely, the respondent should have travelled to Lusaka to swear the affidavit, a task that took only a few seconds, Mr. Mainza submitted. On the basis of his submission, Mr. Mainza J 6 (520) told the learned trial Judge that the contempt proceedings were misconceived and should be dismissed with costs. With regard to the second limb of the preliminary issue, Mr. Chisanga submitted before the trial court that at the time the learned trial Judge granted an ex parte order for leave to commence contempt proceedings the appellant newspaper had not filed its defence to the main cause. He stated that at the time the motion for committal was scheduled to be heard (meaning that same day, the 3rd October, 2008) the defence had been filed in which the appellant had pleaded the defences of justification and fair comment. To that extent, Mr. Chisanga urged the lower court to exercise its K inherent jurisdiction and vacate the ex parte order for leave to commence committal proceedings pursuant to Order 32, rule 6, of the RSC as the defence that had been filed was of the nature that an injunction could not have been tenable. In support of the foregoing submission, Mr. Chisanga cited the case of Becker Vs. Noel(3) in which Lord Denning, as he then was, stated that the court had inherent jurisdiction to vacate an ex parte order for committal on sufficient grounds being advanced. He also cited the case of WEA Records Limited Vs Vision Channel 4 Limited,(4) another English case, in which it J7 (521) was stated that an ex parte order, as a provisional order, could be vacated or varied upon hearing evidence from the other affected party. Counsel submitted that at trial the appellant newspaper would show that a plea of justification and fair comment ousted the jurisdiction of the court from entertaining an application for committal proceedings. Since the circumstances had changed with the filing of the defence, there was no reason to continue with both the injunction and the order for leave to commence committal proceedings, which (the latter) was bom out of the ex parte order of injunction, counsel submitted. Like Mr. Mainza, Mr. Chisanga urged the lower court to vacate the ex parte order for committal with costs, In response to the two preliminary issues, Mr. Mundia, S. C., submitted before the lower court that the leave applied for under Order 52, rule 2, of the RSC, 1999 Edition, was a procedural process and did not, in anyway, affect the issues to be determined at the trial of the main cause. After referring to the paragraphs of his affidavit in support of summons for leave to commence contempt proceedings, to which Mr. Mainza had referred to earlier on, the State Counsel submitted that it was within his competence, as an advocate, to swear the affidavit. J 8 (522) With regard to the Chikuta(1) case, cited by the appellant, Mr. Mundia argued before the lower court that the objection in that case was because the issues were argued only on affidavits; that certain facts deposed to by counsel were not within the knowledge of counsel, thereby making his affidavit evidence hearsay. He submitted that the court simply expressed the undesirability of an advocate swearing an affidavit on contentious matters. With regard to his affidavit in support of the application for leave to commence contempt proceedings, Mr. Mundia contended that there was nothing contentious in the affidavit; that the affidavit dwelt on the procedural request for leave and did not determine the issues that were to be determined at the hearing of the notice of motion for an order of committal. As far as the State Counsel was concerned, the preliminary issues raised were misconceived because the order to grant leave to commence committal proceedings, having been obtained, could not be set aside. According to Mr. Mundia, the option available to the appellant newspaper, in the circumstances, was to apply for review or appeal and not to raise preliminary issues in violation of Practice Direction No. 1 of 2002. J 9 (523) In conclusion, Mr. Mundia submitted that the order to commence contempt proceedings was valid and urged the learned trial Judge to sustain it so that he could determine the issues in the notice of motion for committal. The foregoing submissions of counsel representing both parties were duly considered by the learned trial Judge. The learned trial Judge, in reference to the Chikuta(1) case, noted that the principle enunciated in the case was very sound in law. However, in relation to the case at hand, the learned trial Judge was of the fine opinion that the case did not apply to the circumstances of the case. On the affidavit in support of an application for an ex parte order for leave to commence committal proceedings sworn to by the State counsel, the trial Judge opined that that was a procedural issue under Order 52 of the RSC; that under the RSC the deponent of such an affidavit was only required to justify, through an affidavit, why the court should grant such leave; that once leave had been granted the affidavit became irrelevant, meaning that whatever was deposed in the affidavit would not, subsequently, be the subject of further consideration or determination by the court. As far as the learned trial Judge was concerned, the critical affidavit in committal proceedings was one in support of the motion, which contained J 10 (524) evidence seeking an order of committal. According to the trial Judge, that was the affidavit that contained contentious issues and had to be sworn by the applicant. Had the State counsel signed the affidavit in support of the motion, the Chikuta (1) case would have applied, the learned trial Judge said. The learned trial Judge was also satisfied that the affidavit in support of an ex parte application for leave to commence committal proceedings was properly deposed to by the respondent’s counsel. He dismissed the first preliminary issue as there was no impropriety in the context of the Chikuta(1) case. On the second preliminary issue, the learned trial Judge was not K persuaded by the argument that since a defence had been filed the ex parte order of injunction should be vacated as the argument was only relevant at the time the court would be considering and making a determination on whether the ex parte order of injunction should be maintained or not. As far as he was concerned, the ex parte order in issue related to an application for leave to commence committal proceedings for which he saw no legal basis for vacating it. In the view of the learned trial Judge, the various authorities cited in support of the second preliminary issue did not apply to the J11 (525) circumstances of the application for committal. The second preliminary issue was dismissed as well, hence this appeal. There are three grounds that have been advanced in support of the appeal. The first one reads- The Honourable Judge erred when he held that it was proper for counsel to depose to an affidavit whose contents were highly contentious; The second ground reads- The Honourable Judge erred when he failed to vacate the order for leave to commence contempt proceedings in the light of sufficient grounds advanced by the appellant; and The third ground reads- The Honourable Judge erred by failing to address all matters that were argued before the court. At the hearing of the appeal, the appellant’s counsel indicated to us that Mr. Mainza was to argue ground one while Mr. Chisanga was to argue grounds two and three. Both counsel relied on the skeleton heads of argument they jointly filed on behalf of the appellant, which they supplemented with comprehensive oral arguments. J 12 (526) The oral submission of Mr. Mainza, on ground one, was that the application for leave to commence committal proceedings was based on affidavit evidence and that the issues highlighted in the affidavit, sworn to by the State Counsel representing the respondent, were contentious. On the basis of the Chikuta(1) case, earlier referred to in this judgment, Mr. Mainza contended that the affidavit was defective. However, Mr. Mainza agreed with the court that what were contentious issues were actually legal arguments. Mr. Mainza conceded that the State Counsel was not restrained from arguing on issues of law when they appeared before the learned trial Judge. On paragraph 12 of the affidavit sworn to by the State Counsel on behalf of the respondent, Mr. Mainza submitted that the contents amounted to a conclusion on extraneous matters. Further, on paragraph 15 of the same affidavit, Mr. Mainza submitted that the paragraph raised triable issues to be determined by the court. As far as he was concerned, the paragraph was defective in that it contained opinions and conclusions on highly contentious issues and matters that were to be resolved at trial. With reference to Order 52 of the Rules of the Supreme Court (RSC), 1999 edition, Mr. Mainza submitted that the respondent was supposed, J 13 (527) under the said Order, to personally file the application for leave to commence contempt proceedings and not through his advocate. As far as he was concerned, an advocate was in breach of Order 52 if he swore an affidavit on behalf of an applicant. In the context of the appeal before us, the bone of contention was that the application for leave in the court below was wrongly commenced. On the basis of the foregoing arguments, Mr. Mainza urged us to quash the learned trial Judge’s holding that the affidavit in support of the application for leave was properly sworn to by-the State Counsel in that it offended Order 5, rule 15 of the High Court Rules and the Chikuta(1) case., On ground two, Mr. Chisanga submitted that at the time the ex parte order was granted the appellant had not filed its defence; that at the inter partes hearing of the motion for committal, the appellant requested the learned trial Judge, by way of a preliminary issue, to vacate the ex parte order because the appellant had filed a defence, which raised the defences of justification and fair comment. On filing the defence, the appellant was of the view, according to Mr. Chisnga, that the Court would exercise caution and vacate the ex parte order. In support of this position, counsel referred us to Order 32, rule 6, of the J 14 (528) RSC, 1999 edition, which confers inherent jurisdiction on the court to vacate a provisional order on sufficient grounds being shown. As far as counsel was concerned and in terms of the defence filed, the appellant had demonstrated sufficient grounds for the vacation of the ex parte order. On ground three, Mr. Chi sanga, complained that the learned trial Judge did not, in his ruling, sufficiently address the issues they had raised before him and as a result he did not vacate the ex parte order and halt the hearing of the motion for committal. In his response, Mr. Mundia-relied on the respondent’s heads of argument and asserted, by way of oral submission, that the affidavit he swore was deposed on issues he was familiar with and on law. He submitted that one thing that came out clearly from the affidavit was that the affidavit did not touch on the finality of issues. As far as he was concerned, the affidavit was in support of the application for leave to institute contempt proceedings and to that extent he did not think that the Chikuta(1) case was relevant. He further submitted that the plea of justification and fair comment was a matter that could be raised at the main trial of the motion for committal and not in this appeal. We were urged to dismiss the appeal as one J 15 (529) without merit. We have had occasion to read the respondent’s heads of argument and we are satisfied that the State Counsel’s oral submission adequately summarises the heads of argument and, therefore, the need to delve into the heads of argument is ruled out. We have considered the submissions in this appeal in the light of what transpired in the court below as contained in the record of appeal and the order of the learned trial Judge that is the subject of this appeal. With regard to ground one, Mr. Mainza’s line of argument is that since the affidavit in support of the ex parte application for leave to commence contempt proceedings, sworn to by Mr. Mundia, S. C., contained contentious issues or matters reserved for the main trial, this Court should reverse the learned trial Judge by setting aside the ex parte order. He forcibly argued that the Chikuta(1) case rendered support to his proposition in that it bars an advocate from swearing an affidavit on contentious matters or issues on behalf of a client or litigant. On the other hand, Mr. Mundia, in supporting the finding of the learned trial Judge ‘that it was proper for’ him to depose to the affidavit on behalf of his client, counter-submitted that the affidavit he swore was deposed on issues he was familiar with and on the law. As far he was J 16 (530) concerned, the affidavit did not touch on the finality of issues as it was mainly in support of an application for leave to institute contempt proceedings. We have examined Order 52, rule 2, of the RSC, 1999 edition. Under rule 2(1), the law is that no application for an order of committal may be made unless leave to make such an application has been granted in accordance with the rule. Rule 2(2) of the same Order 52, provides the procedure for applying for leave. It reads and we quote (2) An application for such leave must be made ex parte ... and must be supported by a statement setting out the name and description of the k applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is filed, verifying the facts relied upon. A reading of rule 2(1) and (2) above does not give any clue as to who should swear the affidavit, verifying the matters or issues relied upon. In other words, the two sub-rules do not categorically state that the affidavit must be signed by the applicant in person or by his advocate. However, in rule 2(3) of the same Order 52, the applicant is required to give notice of the application for leave not later than the preceding day to J 17 (531) the High Court and must at the same time lodge in that office copies of the statement and affidavit. Rule 2(3), like rules 2(1) and (2), does not help either because it does not specifically direct the applicant to personally give notice of the application for leave and at the same time file copies of the statement and affidavit. Our strong view is that where an applicant is legally represented, like was the position in this case, the advocate can file the said documents on behalf of his client. The applicant, and now respondent in this appeal, was and is still represented by the same counsel. In paragraph 4 of the affidavit in support of the application for leave, Mr. Mundia, S. C., deposes and we quote:- 4. That I am the advocate having the care and conduct of this matter on behalf of the plaintiff (applicant) and am, therefore, competent to depose to facts contained herein. The paragraph above clearly shows that the State Counsel was acting on behalf of the respondent. In agreement with the learned trial Judge, our clear understanding is that the application for leave was in compliance with the procedure under rule 2(1), (2) and (3) above for the sole purpose of securing leave of the trial court to institute contempt proceedings against the appellant. In so doing, the State Counsel had to provide some information, not as proof of the matters in controversy, but for the purpose of making a J 18 (532) prima facie case for the granting of leave to commence contempt proceedings We have glanced at the affidavit in support of the notice of motion for an order of committal, bearing the same date as the affidavit in support of an application for leave, sworn to by the respondent himself. We note that the affidavit of the respondent is a more detailed account of the matters and issues to be proved at the hearing of the notice of motion. This is as it should be as the respondent is required to state exactly, in the affidavit in support of the notice-of motion and the motion itself, what the alleged contemnor has done or omitted to do that constitutes a contempt of the court with sufficient particularity to enable the contemnor meet the charge. It cannot be over emphasized that the matters alleged in the motion are normally contentious, requiring the respondent to testify and be cross- examined in person, hence the need to swear the affidavit personally. Here the Chikuta(1) case is relevant. Our conclusion, on ground one, is that the Chikuta(1) case does not apply to an affidavit in support of an application for leave to institute contempt proceedings. Our understanding of the Chikuta(1) case is that this Court did not impose a blanket ban on the swearing of affidavits by counsel J 19 (533) even in procedural applications. As a matter of procedure, the application was made ex parte to a judge in chambers, requiring the deponent, in his affidavit, to show that the applicant had a prima facie case for the grant of leave. By the nature of the application, there was no need for the presence of the other party as his presence would be a matter of course at the hearing of the motion inter partes. Ground one has no merit and we dismiss it. On ground two, the issue, as canvassed by Mr. Chisanga, was that there was no need for the motion for committal to be heard because at that stage the appellant had filed a defence in which the defences of justification and fair comment were raised. That since the order for leave to commence contempt proceedings and the order of injunction, from which leave arose, were both ex parte orders, the former order, as a provisional order, was liable to be vacated on sufficient grounds being advanced by the appellant. As far as Mr. Chisanga was concerned, the appellant, having raised the two defences of justification and fair comment, was entitled to have the ex parte order for leave set aside and halt the contempt proceedings. Order 32, rule 6, of the RSC and the cases of Becker Vs. Noel(3) and WEA Records limited Vs. Vision Channel 4 Limited(4) were relied upon. J 20 (534) In his counter argument, Mr. Mundia, S. C., submitted that the plea of justification and fair comment was irrelevant at this stage; he thought that the pleaded defences could be raised at the stage the notice of motion was being determined. We agree with Mr. Mundia, S. C., that the defences of justification and fair comment cannot be resorted to as good grounds for setting aside a validly obtained ex parte order for leave under Order 52 of the RSC. It was not necessary, in our considered view, to raise these defences, during the determination of the contempt proceedings as the defences will be determined at the trial of the main matter. u As far as Order 52 is concerned, our understanding is that an ex parte order obtained there-under is a ‘final order’, or an order in the nature of an order nisi requiring the other party to appear at the hearing of the notice of motion and show cause why he cannot be committed to prison for contempt of court. It can only be upset on appeal. To this extent, Order 32, rule 6, cannot override Order 52 and, in any case, the explanatory notes under Order 32/6/5 do not include an application for leave to institute contempt proceedings as one of the ex parte applications to a judge in Chambers, which can be set aside on good cause being shown. J 21 (535) We were also referred to the cases of Becker vs. Noel(3) and WEA Records Limited vs. Vision Channel 4 Limited.(4) We have looked at the two cases and both of them deal with different situations and circumstances totally different from the case at hand. In the WEA(4) case it was an ex parte application for an Anton Piller order requiring, among others, the defendants to disclose the identity of suppliers of or customers for infringing tapes ... etc. In this case, the Court of Appeal refused to hear an appeal on an ex parte application to set aside an ex parte order granted by the High Court and referred the matter back'to the High Court for the concerned Judge to revise his order in the light of subsequent evidence and argument. In the Becker(3) case, the ex parte application was in respect of leave to issue a writ against the defendants, which was later set aside for misrepresentation under Order 32, rule 6. Although the case does not indicate at what stage it was set aside, the probability is that it was set aside at the inter partes stage, especially if you consider the time it took to set it aside. Ground two has no merit and it is dismissed. On ground three, we were not told what the learned trial Judge omitted to do or which submissions or evidence he did not take into account. On that account, ground three has failed and it is equally dismissed. J 22 (536) On the whole, we are satisfied that the learned trial Judge cannot be faulted in his order; he w as certainly on firm ground. The appeal has wholly failed with costs to the respondent to be taxed in default of agreement. .... JL..... D. K. Chirwa, SUPREME COURT JUDGE. SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE