Savenda Management Services Limited v Stanbic Bank Zambia Limited (APPEAL NO. 37/2017) [2019] ZMSC 388 (15 March 2019)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 37/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN : SA VENDA MANAGEMENT SERVICES LIMI TED APPELLANT AND STANBIC BANK ZAMBIA LIMITED RESPONDEN T IN THE MATTER OF: Contempt Proceedings Relating to John Hardy Mambo CORAM: Mwanamwambwa D. C. J. , Phiri, Muyovwe, Hamaundu, Malila, Kaoma, Musonda, Kabuka, and Mutuna, JJS On 23rd August, 2018 and 15t h March, 2019. For the Contemnor: Mr. Chifumu Banda, S. C., of Messrs. ' Chifumu Banda & Associates; Mr. Sydney Mulengeshi of Messrs.' Mulengeshi & Co.; and Mr. Willis Muhanga of Messrs.' AKM Legal Practitioners JUDGMENT Mwanamwambwa, DCJ, d elivered the Judgment of the Court. Cases Referred to: 1. Communicati ons Authority of Zambi a v Vodacom Zambia Limit ed, Appeal No. 98 of 2008 2 . Leonard Banda v Dora Sili ya and Nevers Mumba, SCZ Judgment No. 20 o/2013 3. M. S. Syakalonga v The People (1977) Z. R. 61 4 . Mwiba v The People (1971) Z. R. 131 Legislation Referred to: The Rules of the Supreme Court, 1965 (1999 edition). Order 52/1/23 This is a judgment in respect of contempt proceedings relating to Bishop John Hardy Mambo, hereinafter called "the contemnor". The background to this matter is as follows. In March, 2018, this Court deliver ed a judgment in Appeal No . 37 /2007 between Savenda Management Services Limited and Stanbic Bank Zambia Limited. That was an appeal by Savenda Management Services Limited, from a decision of the Court of Appeal. In its judgment, this Court dismissed the appeal. On 21 st May 2018, the contemnor wrote a letter to the Honourable Chief Justice of the Re public of Zambia, which he copied to the Chairperson of the Judicial Complaints Commission. In that letter, he alleged, among others, that the decision of the Court of Appeal "was suspiciously overturned by the higher court on appeal". He wrote another letter, bearing the same date, to the Chairperson of the Judicial Service Commission. It was captioned "Concerns on the State of the Judiciary in Zambia". After reading the two letters, we took the view that their contents were prima facie contemptuous of this Court. Therefore, J2 we summoned the contemnor to show cause why he should not be cited for contempt of court. The summons was pursuant to the inherent jurisdiction of this Court, as well as under Order 52/1/23 of the Rules of the Supreme Court, 1965 (1999 edition), h ereinafter called "the White Book". The contemnor was charged with two counts of contempt of court contrary to Order 52/ 1/22 and 52/ 1/23 of the White Book. In relation to the first count, the particulars of the contempt were that in the letter to the Chief Justice, copied to the Chairperson of the Judicial Complaints Commission, the contemnor stated, in particular, the following words: "The legal suit against the bank by Savenda, though given a favourable judicial decision at the lower court, was suspiciously overturned by the higher court on appeal... most judges seem to be more Interested In achieving personal ambitions at the expense of justice for all and equality before the law ... " The second count related to the letter written by the contemnor to the Chairperson of the Judicial Service Commission. For the sake of completness and keeping the issues in perspective, J3 we find it necessary to reproduce the particulars of the letter, as contained in the second cou nt: "May 21, 2018 Chairperson Judicial Service Commission (JSC) LUSAKA. Dear Sir/Madam, RE: CONCERNS ON THE STATE OF THE JUDICIARY IN ZAMBIA We refer to the above captioned matter and we further wish to seek your indulgency on the same. As Chikondl Foundation Board, through our mandate anchored on promoting human dignity and welfare and equality before the law for all citizens, we write to tender our grave concerns to your esteemed office on the conduct of the entire judicial system in Zambia and seemingly super roles foreign entities and Investors are playing in the social, economic and political sectors of our nation. It is in this regard that we feel compelled to write to you to bring to your attention, as the appointing authority of these men and women In the wig and overall overseer of the national affairs, the perceived abnormalities In the judiciary and the nation at large. As Chikondi Foundation Board, we have observed a growing trend where judicial decisions on a number of cases brought before the judiciary, mostly when they are between the foreigners and local citizens albeit in J4 the corporate and ordinary cases, favour foreign entities and investors. One of the case in point involves Savenda Management Services versus the Stanbic Bank Zambia in which the judiciary seems to be playing to the gallery with justice. This case was handled by the following judges, Judge Michael Musonda, Nigel Mutuna and Judge Evans Hamaundu. One aspect of concern in this case is where the bank, without consent of the client, reveals the Indebtedness of the client, Savenda, to the world and attempts for judicial redress seemed untenable. The legal suit against the bank by Savenda, though given a favourable judicial decision at the lower court, was suspiciously overturned by the higher court on appeal. Another case is that of Costain Chilala of Chimsoro Farms vs. Stanbic Bank Zambia where local investment is being stifled by foreign investors due to perceived injustices at the judiciary. In terms of labour, the same scenario obtains where, whenever a dispute arises between the local labour and the foreign investors, the trend has been that the foreign entities and Investors, always received favourable treatment and judgement by the government officials and judiciary respectively. We, the Chikondi Foundation Board, feel that scenarios above where judicial decisions or indeed government officials' treatments have apparently been favouring wrongdoers, in the name of foreign entities and Investors both in the corporate world, labour and in ordinary cases is scary and unpleasant to the social, economic and political development of this country. This trend is also contrary to the spirit and letter of our Republican Constitution in Article 118 which demands justice for all JS regardless. Also of concern is where business contracts are awarded in preference to foreign contractors and companies at the expense of the locals. This situation has raised discontentment among the citizens and local investors and contractors. It must be addressed urgently. In this regard, Chikondi Foundation appeals to you, as an institution in charge of scrutinizing judges in this country, to be alive to the happenings at the Judiciary to avoid judicial capture by the foreign entities and investors which can consequently undermine the delivery of justice, as miscarriage of justice may be the order of the day in Zambia. We further appeal to you Sir/Madam, to curb the growing trend of favouring foreign companies and investors at the expense of local Zambians ... Unlike currently where most judges seem to be more interested in achieving personal ambitions at the expense of justice for all and equality before the law ... To this end, we suggest that: 11.) In the Savenda's case vs. Stanblc, we suggest that both courts - Court of Appeal and the Supreme Court - should be thoroughly investigated to ascertain that in the Savenda case, there was no corruption involved. Without doing this Sir/Madam, Chikondi Foundation Board fears a situation may unfold where judicial capture is enrooted in our judicial system which may undermine Zambia's sovereignty ... J6 Sir/Madam, we feel that If our institution does not do due diligence on the vetting process, and if this trend ls left unchecked, Zambia is headed towards state capture by the powerful In society ... " The Contemnor appeared before this Court on 23rd August, 2018. He pleaded guilty to both counts. The contemnor went on to apologise to this Court for the contemptuous contents of his letters. According to him, unknown individuals had taken advantage of the contempt proceedings before this Court to publish contemptuous material on social media, purporting that it was from h im. He, nevertheless, took full responsibility for the two letters he wrote to the Honourable Chief Justice and the Chairperson of the Judicial Service Commission. The contemnor told this Court that when he wrote the two letters, he had not read the three judgments rendered in the case involving Savenda and Stanbic. That is to say, the judgment rendered by th e High Court, the judgment of the Court of Appeal, and the one rendered by this Court. According to him, he relied solely on "what was in the public domain and what would be the comments from both the learned and lay peoplf!' . J7 He told this Court that he was aware that, given his position as a Bishop, some people would mindlessly believe what he said, hence his unreserved apology. He further requested this Court to allow him to withdraw his contemptuous correspondence. We considered the contents of the two letters written by the contemnor, his pleas of guilty to the two counts and the subsequent interaction between him and this Court. We found him guilty of contempt of this Court. Accordingly, we convicted him. In mitigation, Mr. Banda, SC, hastened to put it on record that the contemnor was a first offender, who had readily pleaded guilty to both charges, and had apologised. He said that his client erred by making allegations, in his letters, which he ought not to have made. Mr. Banda, SC sought to impress upon us, however, that it takes a high level of responsibility to apologise for one's wrongdoing. He said that the contemnor was remorseful for his actions. That, in future, he would refrain from putting in writing that which cannot be substantiated. Citing the case of Communications Authority of Zambia v Vodacom Zambia Limited flJ, Mr. Banda, SC, beseeched us to J8 consider imposing a fine instead of a custodial sentence. He submitted further that there could be no better demonstration of the contemnor's remorse than his willingness to withdraw his contemptuous letters. That this Court must, on that basis, consider an absolute discharge in favour of the contemnor. In aid of that submission, he referred us to the case of Leonard Banda v Dora Siliya and Nevers Mumba f2J. Mr. Banda, SC, conceded that the prevalence of an offence is one of the factors the Court takes into consideration when deciding what sentence to impose. However, he urged this Court to also take into account the contemnor's remorsefulness and apology. That having done so, the Court should temper justice with mercy. We have considered the contemnor's apology, his supplication for mercy and the authorities cited by State Counsel in mitigation. There are certain observations we wish to make about the two cases invoked by State Counsel, namely Nevers Mu mba and Vodacom. Firstly, we are not persuaded that the Nevers Mumba case can support an absolute discharge in favour of the contemnor. That case had a peculiar background. The contemnor, who was President J9 of the opposition Movement for Multi-party Democracy (MMD), had issued statements in the media, following the nullification of a parliamentary seat held by a member of his party. He accused this Court of aiding the ruling Patriotic Front (PF) in its alleged agenda of depleting the opposition numbers in parliament. In a statement filed into Court, he claimed that his accusation was based on a statement by the Secretary General of the PF that the ruling party would 'engage' the Court in relation to the matter. However, he went on to apologise and withdraw his remarks to the extent of the contempt. We accordingly convicted him, but before we passed sentence, the Appellant filed a supplementary bundle of documents. Among those documents was a letter written by the Secretary General of the PF to the Party's advocates. The letter was copied to the then Honourable Acting Chief Justice. It was about possible disqualification of persons involved in electoral corruption. The bundle also contained a Press Statement issued by the Public Relations Officer of the Judiciary and a "Report" written by the Acting Registrar of the High Court to the Electoral Commission of Zambia. Both related to parliamentary seats nullified by the High Court, and were generated about one week after the PF Secretary JlO General's letter. Insofar as is relevant, t h e followin g were the observations we m a d e in our Ruling: "It Is common knowledge that the Press Statement and the Report by the Acting Registrar of the High Court Induced the Electoral Commission of Zambia to bar the losing candidates for Petauke Central, Malambo and Mulobezi Constituencies, from contesting the Parliamentary seats. The Electoral Commission of Zambia issued a statement that they would not accept nomination applications from the losing candidates in the three Constituencies because of the statement and the report from Judiciary . . . . given the sequence of events, we are of the view that the statement issued by the Public Relations Officer and the subsequent Report to the Electoral Commission of Zambia were influenced by the letter of 1st August, 2013 by the Patriotic Front. Secondly, we are uncomfortable and worried that the letter of 1st August, 2013 and the legal opinion attached thereto, was copied to the Hon. Acting Chief Justice. We say so because there were already intended moves to file the motions stated above. In our view, it Is not In order for an Intended litigant, or somebody on his behalf, to send a letter and legal opinion related to intended litigation, to a member of the Court. Such a move gives a perception that the Court is siding with a party to a dispute. And It is that kind of perception that caused the contemnor to make the contemptuous statements, for which he Is charged ... However, we are of the view that the documents provided strong mitigation In favour of the contemnor. We say so because they relate to Issues that the Contemnor was complaining about when he made the contemptuous statement." Those documents, coupled with Dr. Never s Mumba's p lea of guilty, his apology and mitiga tion , formed the b asis for the absolute discharge we gave him. In the case before us, however, the Jll allegations made by the contemnor are completely without basis. The two cases are clearly distinguishable. We now come to the Vodacom case. In that case, the contemnor was a former Vice-President of Zambia. He was quoted in a newspaper article as alleging that the President had directed this Court to rule against him in Appeal No. 98 of 2008. He pleaded guilty to a charge of contempt of court and apologised for his utterances. We fined him Five Million Kwacha (KS, 000, 000.00). In our Ruling, we stated that in arriving at that decision, we had taken into account, among others, "the background to the utterances". Part of that background was an article in the Times of Zambia, stating that the President had directed that no licence be issued "to any other mobile phone company ... " That included Vodacom Zambia, of which the contemnor was Chairman. The gist of his mitigation was that he uttered the contemptuous words in anger and in reaction to the statement attributed to the President. Conversely, the case before us lacks any background against which the contemnor could reasonably have made his thoughtless J12 and contemptuous allegations. Therefore, we hold that the Vodacom case does not help his case at all. From these proceedings, we find that the allegations made by the contemnor were outrageous. They are completely unjustified. What is more intriguing is that he wrote the contemptuous letters without reading any of the three judgments rendered in the case involving Savenda and Stanbic. How then, if we may ask, did he get offended by the outcome of the case? Was he a hired gun? This bespeaks inexcusable recklessness on the part of the man of God, whom society expects to act on the basis of truth, and not popular sentiment or falsehoods from the grapevine. Further, he was impetuous. A reasonable man, similarly placed, would reflect before putting, 1n writing, the kind of allegations he wrote to the Chairman of the Judicial Service Commission. He even went to the extent of suggesting that the Zambian Courts should look at the identity and nationality of litigants and routinely pass judgments in favour of Zambian companies or citizens, against foreign investors or companies. We wish to tell the Contemnor that there is no such thing as patriotism J13 m the delivery of justice. A judgment must b e delivered on the basis of the law and evidence and not on the basis of the n a tionality, identity, face or status of a litigant. Every litigant, supported by the law and evidence, is entitled to justice, irrespective of their nationality, identity, face or status. In d eciding cases, the Suprem e Court, and indeed all Courts, do not look to see who is involved. Our Courts look at the law and evidence. They shoot straight. And that is what we did in the Savenda case. That is what the Rule of law is all a bout and, indeed, the independence of the Judiciary. The High Court judgment which awarded Savenda all the claims it made against Stanbic Bank Zambia Ltd, was not based on the law, legal principles and the evidence. That was why the Court of Appeal and Suprem e Court reversed it. Justice is where a p arty, supported by the law, legal principles and evidence, gets a judgment. A d ecision based on, or induced by, extraneous considerations is not a judgment in law; it is not justice. Justice must be d eliver ed freely, purely on the law and eviden ce, consistently and with uniformity. It must n ever b e paid for, J14 through hired guns or other mischiefs makers, whose sole purpose is to capture the Judiciary, to secure favourable Judgments. There is something we find very odd about this case. When the High Court made a decision which was a misdirection, in favour of Savenda against Stanbic Bank (Z) Ltd, Bishop Mambo , Gregory Chifire and Derrick Sinjela never protested over the decision. They never alleged corruption against the High Court. They were happy and silent. As soon as we and the Court of Appeal corrected and reversed the High Court decision, they sprang up and made noise in protest. They alleged that the Supreme Court was bribed. They demanded that our judgment be reviewed and reversed in favour of Savenda. Chifire claimed that if the judgment was not reversed, it would make bad jurisprudence. People who have never seen the inside of a law class room, purported to lecture the Supreme Court on law and how to write judgments. The Contemnor and others who insulted the Supreme Court over this matter, were not parties to the case they were mourning over. The case was ably handled by lawyers on both side s . The people in question have no locus standi in this matter. We find their JlS involvement in this matter a very misguided, irresponsible and mischievous enterprise. On the Internet, there 1s an analysis and grading of the ten (10) most poorest countries in Africa. Three of them share borders with Zambia. And Zambia is not one of the ten (10). In the assessment and grading of the ten, one of the criteria used is a Judiciary which is either corrupt or not independent. All the ten are reported to have a Judiciary which is either corrupt or not independent. And it is a fact that a corrupt Judiciary can never be an independent one. A corrupt Judiciary makes decisions influenced by, or based on, corruption and not based on the law. A corrupt Judiciary can never shoot straight. False accusations of corruption against the Supreme Court, the highest court in Zambia, has the potential to undermine the Judiciary as a whole and, the governance and economy of Zambia. Zambia needs foreign investment to sustain and improve its economy. Foreign investors would not invest in a Country that is perceived to have a corrupt Judiciary and a bad governance. J16 .. • Judges and other Adjudicators, who are known or suspected to be receiving bribes, should be reported to the investigative organs of the State, for investigations, prosecution and removal from office. It was unwise for the Contemnor to make wild allegations of corruption against the Supreme Court. His assertions were based on fabricated documents posted on the Watchdog by people who habitually want to get things their own way, or even using weird means. In light of the foregoing, this Court takes the allegations of corruption made against it very seriously. That is why it gave the unrepentant Chifire, a custodial sentence of 6 years, and Sinjela, a custodial sentence of 18 months. The sentence we shall impose will reflect the potentially grave consequences of the allegations of corruption on the Judiciary and the country. At this point, we wish to restate our position in Mwiba v The People f4J, in which we held that while sentencing, due allowance should be given to an accused person who pleads guilty and shows contrition. In our view, the contemnor has done both. Be that as it J17 • may, we are gravely concerned about the prevalence of wild allegations against judicial officers, which are clearly aimed at undermining their credibility . A deterrent senten ce is n ecessary. In M. S. Syakalonga v The People f3J, we h eld as follows: "One of the principles of sentencing is for the purpose of deterring other would-be wrongdoers from committing similar offences, and it is perfectly proper to refer to the prevalence of an offence and to use that prevalence as a basis for imposing a deterrent sentence." This is something we cannot ignore in deciding the sentence to be imposed on th e contem nor. Having taken into account the foregoing and the mitigation arguments advanced by State Counsel on behalf of the contemnor, we h ereby fine him Twenty Five Thousand Kwacha (K25,000-00) . The fine shall be paid within seven (7) days from today. In, default, the contemnor shall serve a term of nine (9) months simple imprisonment. BWA DEPUTY CHIEF JUSTICE J18 • . ,. G. PH IRI SUPREME COURT JUDGE E. N. C MUYOVWE SUPREME COURT JUDGE E. M HA NDU SUPREME COURT JUDGE ··· ······ ·~·.···· ·· ·· SUPREME COURT JUDGE -=--.-:::::::::::- ·"-T"T-0·~~-=io~ SUPREME COURT JUDGE ) ..... t:i. MUSONDA··f .... SUPREME COURT JUDGE J. K KABUKA SUPREME COURT JUDGE ... ...... .. .. .... ...... ..... .... ~ ... SUPRE C DGE J19