Mwelwa v Landu (HP 621 of 2014) [2014] ZMHC 78 (15 July 2014)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTK 2014/HP/0621 BETWEEN: RUTH MWELWA AND PLAINTIFF ANNIE KAPAPULA LANDU PETRONELLA LANDU (Sued as Joint Administratrix of the Estate of the late Eugene Landu) DEFENDANTS Before the Hon. Mrs. Justice J. Z. Mulongoti, in Chambers on the . AWfclay of .......... , 2014 For the PLAINTIFF Mr. J. M. Chimembe of Messrs JMC & Associates For the DEFENDANTS : Mr. V. Kabonga of Paul Pandala Banda & Company R U L I N G R1 The Ruling relates to a preliminary issue raised by the Plaintiff s advocates to the effect that the Defendant’s affidavit in opposition o f summons for an Injunction filed into Court on 19th May 2014 in particular paragraph 13, alleges that exhibit ‘R M 3’ o f the affidavit in support, is a forgery. Further that paragraphs 11 and 16 it also alleged that the Plaintiff forged the documents ‘RM 3’ and ‘R M 6’ and that she has not come to Court with clean hands. Learned counsel for the Plaintiff informed the Court that the preliminary issue was made pursuant to order 41 Rule (5) (1) o f the Supreme Court Rules and also order 41 Rule (5) (4) and order 41 Rule (6) which allows the Court to order or struck out scandalous, irrelevant or oppressive matters. That the paragraphs 13, 14, 15, 16 and 19 o f the affidavit in opposition contained certain scandalous, irrelevant and oppressive information which ought to be struck out. R2 Learned counsel for the Defendant filed a Reply to the Notice to Raise Preliminary Issue pursuant to order 3 o f the Rules o f the Supreme Court. It was contended that there are witnesses to prove the allegations o f forgery and any other offence related to the facts. Order 45/5/2 o f the Rules o f the Supreme Court was cited as authority. It is the Defendant’s argument that the cited order 45/5/2, did not imply that a deponent must bring before Court human sources o f information. That the Respondent was prepared to call witnesses to prove forgery and any other references related to the case at hand at the trial o f the main action, not at the interlocutory stage. And that it would be premature at this stage to give details o f the allegation of forgery. That these witnesses interacted and lived with the deceased, there is no reason to doubt the veracity o f things they heard the deceased say or do. That the Respondent’s stand is that ‘RM 3’ was forged and thus the assertion that the Applicant has not come to Court with clean hands. R3 V It was further submitted that the preliminary issues be waived at this stage as they will only achieve one goal that o f frustrating and embarrassing the trial o f the case in the merits as against the technicalities. Further, that the Applicant will not be prejudiced by the waiver because if the Respondent do not make out their case in the main hearing the Applicant can sue for libel. For the foregoing, the Court has been urged to dismiss the application to raise preliminary issue or direct the Applicant to waive the preliminary issue. I must state from the outset that I am inclined to dismiss the preliminary issue raised by the Plaintiffs advocates. I have perused the submissions by the Defendant’s counsel that witnesses shall be called to testify on the forgery issue, which as argued is not to be proved at this interlocutory stage. In fact most o f the issues raised in both the affidavit in support and also the opposing one are irrelevant at this stage, where I am concerned with whether to grant the injunction or not following R4 the well established principles. Accordingly, the preliminary issue is dismissed with costs in the cause. I adjourn the matter to the 19th o f August 2014 at 08:30hours for inter pates hearing o f the application for interim injunction. Delivered this .l^ .^ d a y o f 2014. aJ j Cv \ J. Z. MULONGOTI HIGH COURT JUDGE R5