Mumba asks High Court not to entertain Mutati group’s defence

MMD leader Nevers Mumba’s counsel has advised the High Court not to entertain issues that were not pleaded in the matter before it.

This is according to submission on the case that has dragged since 2016 when a disputed convention that purported to elect Felix Mutati as MMD president was held.

Winnie Zaloumis, the MMD national secretary, sued Mutati, Mwansa Mbulakulima, Raphael Nakacinda, and George Kangwa over the convention deemed illegal.

In the submissions, Jeah Madaika stated that the issue before court was the legality of the purported convention that was convened and held by the defendants on 20th to 22nd May 2016.

He submitted that he raised the issue because during trial, there were very many witnesses brought by the defendants who made various requests as to how the court should deal with the matter.

“Inasmuch as the witnesses said whatever they did in relation to various issues affecting the MMD, including issues relating to the tenure of Nevers Mumba after the 2012 Convention, the tenure of the MMD National Executive Committee and the alleged breach of article 60 of the Constitution of Zambia Act No. 2 of 2016, we wish to humbly remind the court that the issues for determination do not include every grievance some people may have concerning the MMD,” he submitted. “The Court is bound by the pleadings and the direction of the Supreme Court in the said Judgments. The fact that various matters were placed on record by witnesses does not open the matter to include all the grievances the Defendants and their witnesses had or have against Dr Nevers Mumba who seemed to be the main topic of the bulk of the Defendants’ testimony. The matter must be contained and restricted to the issues that are properly before the Court and for which the court has jurisdiction to adjudicate. We raise the issue of jurisdiction because inasmuch as the High Court has original jurisdiction to adjudicate on all matters before it, this jurisdiction is fettered by law….”

Madaika stated that the court was confined by law to the issues before it in the pleadings and could not accommodate new issues that were being introduced during testimony by the Defendant’s witnesses, which were not part of the pleadings,” he stated.

He stated that the settled position of law was that the Zambian system was adversarial in nature and required parties to outline and set out in clear terms what their case was in their pleadings.

He stated that anything not in the pleadings was not available for consideration by the court.

“The Zambian legal system does not allow a party to ambush a fellow litigant nor does it allow a party to keep reformulating the action mid-stream the hearing of the case. The issues remain as per the pleadings of the parties and any testimony or evidence outside what is pleaded is irrelevant and must be disregarded. In this case, the Defendants’ witnesses went at great lengths on irrelevant matters. We will not bother to recount this irrelevant testimony save to beseech the court to disregard all the irrelevancies,” Madaika submitted.

He submitted that by a meeting of MMD National Executive Committee of 30th January 2016, a resolution was passed which set the date for holding the MMD Convention as May 2017.

He said the resolution was passed by a majority of thirty-three NEC members voting in favour of the resolution and only four voting against, with one abstention.

“As per the testimony of the Plaintiff’s witnesses, the decision was taken after taking the views of MMD members country-wide who were represented in the NEC meeting through their respective provincial chairmen and chairladies. These provincial leaders presented to the NEC the resolutions made by their provinces on the question of the date of holding the convention,” Madaika stated.

He stated that six out of the 10 provinces expressly stated that their position was for the convention to be held in 2017.

“During the deliberations of the said NEC meeting, a total of five (5) legal opinions were presented of which four (4) out of the five opinions stated that the tenure of the MMD President Dr Nevers Mumba would only lapse in 2017, and as such the only correct time that a convention could be held, where an election of the MMD President could legitimately be conducted, was in 2017 after the legal 5-year term from 2012 had lapsed. The legal opinions speak for themselves and appear from pages 155 to 179 of the Plaintiff’s Bundle of Documents,” Madaika submitted.

“Despite the Resolution of the MMD NEC, the Defendants acting in concert decided to disobey the said resolution and they started privately mobilising disgruntled former MMD members to call for a convention in contravention of what the NEC had decided. Disciplinary measures were taken against the said Defendants whereby the 1st and 4th Defendants were expelled from the MMD for continued gross indiscipline, having only recently been re-admitted to the party after being expelled in 2015 for having defected to the UPND during the 2015 Presidential Elections. The 2nd and 3rd Defendants as first offenders were suspended from the party pending disciplinary proceedings.”

Madaika submitted that the 2nd, 3rd and 4th defendants have never contested the disciplinary measures taken against them and no matter has ever been filed in any court to dispute the measures taken against them by the MMD.

“On the other hand, the 1st Defendant challenged his expulsion under cause number 2016/HP/0338 and applied for an injunction against his expulsion but by Ruling dated 26th March, 2016, the Honourable Madam Justice M. Chanda, the application for the injunction was declined meaning that the 1st Defendant remained expelled until further order of the Court. However, the 1st Defendant did not proceed to trial and filed a Notice of Discontinuance on 30th May 2016. The order made by Judge M. Chanda has never been appealed against nor has any contrary order ever been made by any court of competent jurisdiction in Zambia, meaning that to date, the 1st Defendant remains expelled. The court documents relating to the 1st Defendant’s expulsion appear at pages 240 to 262 of the Plaintiff’s Bundle of Documents,” he submitted.

Madaika submitted that as a result of the 2nd Defendant [Mbulakulima]’s suspension, the Plaintiff in this matter., Winnie Zaloumis, took over as Acting National Secretary of the MMD because she had been the Deputy National Secretary prior to the suspension of the 2nd Defendant and by the provisions of Article 46(7) of the MMD Constitution, the Deputy National Secretary was empowered to act in the place of the National Secretary whenever the National Secretary is absent.

“This means when the NEC decided to suspend the 2nd Defendant for indiscipline and advised the President Dr Never Mumba to write him advising him of his suspension, the provisions of Article 46(7) of the MMD constitution immediately kicked in and the Plaintiff was catapulted by the constitution to the role of National Secretary until the disciplinary matters relating to the 2nd Defendant were disposed of. A formal letter was written to her by the president of the party as a way of formalising what is stated under Article 46(7) of the MMD Constitution,” Madaika stated.

“Despite the fact that the Defendants were variously expelled and suspended, they did not relent with their activities of organising a convention and things escalated to a point where the 2nd Defendant, on his own, as a suspended member of the MMD, without prior consultation with Dr Nevers Mumba as President of the party and without an NEC sitting to approve any of his actions, he went ahead and purported to issue a Notice (Circular) calling for an MMD National Convention to be held on 20th to 22nd May 2016 in Kabwe at Mulungushi Rock of Authority.”

He stated that the fact that illegal events were moving forward prompted the Plaintiff, as Acting National Secretary, to file the claim in the High Court and an injunction was sought and granted on 19th May 2019, by the Honourable Mr Justice Sikazwe which was unfortunately discharged ex-parte on 20th May 2019, in very strange circumstances.

He submitted that the Supreme Court strongly condemned the way Judge Sikazwe dealt with the injunction in their selected judgment number 28 of 2016. “The Supreme Court stated as follows on the said unfortunate events: ‘Before we consider the arguments advanced in this appeal, it is important that we comment on the manner in which the Learned High Court Judge conducted proceedings in this matter. We have, in the earlier part of this judgment, expressed our sadness in this regard which we feel compelled to explain. Our decision to move in this manner arises from the fact that the observations we will make have a bearing on the decision we have arrived at in the latter part of this judgment. The facts we have set out in the earlier part of this judgment reveal that after the Learned High Court Judge granted the ex-parte order of injunction on 19th May, 2016, he gave it an inter-partes hearing for 27th May, 2016 which was after the date fixed for the MMD National Convention. As earlier noted, on 20th May, 2016, the Judge proceeded to hear and determine an application, ex-parte, to discharge the ex-parte order of injunction. This was notwithstanding the fact that he had appointed the 27th May 2016 as the day for the hearing of the injunction application inter partes. After discharging the injunction, he proceeded to table another application, ex-parte, to stay the ex-parte order discharging the injunction…we would respectfully adopt the above passage and say that the Respondents’ application to discharge the injunction as well ought not to have been heard ex-parte because there was no real urgency and neither would the application have been rendered nugatory if it was heard inter partes’,” ’” Madaika submitted.

“We have taken time to demonstrate that the supreme court condemned the judicial decision that was taken against the injunction that was granted against the Plaintiff because in the Defendants’ amended Defence at paragraphs 12 and 13, the proposition is put forward that the convention may have been legitimised by the fact that the injunction that was granted to the Plaintiff on 19th May, 2016, was discharged ex-parte on 20th May, 2016 and therefore the Defendant’s convention was legitimised by that order discharging the injunction or by Judge Kondolo’s order refusing an injunction in an earlier different action. Many of the Defendants’ witnesses put forward this proposition in their testimony.”

Madaika submitted that the said the Supreme Court condemned the orders made by Judge Sikazwe and reversed them by sending the matter back to the High Court.

He stated that the orders made by Judge Sikazwe cannot be used as a Defence to the illegalities perpetrated by the defendants because the judge’s orders were vacated by the Supreme Court under Selected Judgment No. 28 of 2016.

“At the time that selected Judgment No. 28 of 2016 was being passed, the Defendants, taking advantage of the orders that had been erroneously passed by judge Sikazwe had proceeded to hold the illegal convention. Despite the Supreme Court condemning the orders that led to the unfortunate turn of events, the only recourse that remained was to challenge the validity of the said convention and the Supreme Court advised on the procedure that could be utilized to quickly dispose of the matter,” he submitted.

“Despite the guidance of the Supreme Court on the means that could be applied to quickly dispose of the matter, the Defendants, when the matter was re-allocated to Judge Siavwapa in the High Court (as he then was), filed a counter-claim raising constitutional issues and applied to have the entire matter referred to the Constitutional Court. Suffice to state that this referral was refused all the way to the Supreme Court which culminated in the Supreme Court selected Judgment No. 31 of 2018. The matter was then re-allocated to you My Lady.”

Mumba’s party prayed for a declaration that the defendants, having been expelled, and suspended respectively, had no rights, power or authority to represent the MMD in any manner whatsoever and to call, convene and attend any meeting or Convention of the Party as they purported to do by calling for the convention which was held on the 20th to the 22nd May 2016.

He also wanted a declaration that Mbulakulima, having been suspended on 3rd March 2016, and having not challenged the said suspension in any court of law, had no legal authority to call for, organise, convene, attend, deliberate at, or participate in any convention and that he has no right to act on behalf of, or represent the MMD in any capacity.

He also demanded an order that the purported MMD Convention held on 20th to 22nd May 2016, having been called and convened by persons who had no authority to do so and in direct contravention of the MMD NEC of 30th January 2016, was consequently illegal and/or unlawful and of no effect; and an order that any deliberations, resolutions, elections and pronouncements made at the said purported convention are void ab initio, of no legal effect and not binding on the party.

He also prayed for an order that the ex-parte order of the judge Sikazwe of 20th May 2016, to discharge the ex-parte order of Interim injunction of 19th May 2016 did not serve to legitimise any proceedings at the illegally convened convention and an injunction restraining tMutati from holding himself out or purporting to have been duly elected as MMD President.

He also prayed for an order that the Registrar of Societies should not take any action to change, amend or replace any records relating to MMD until the High Court makes a specific directive relating to same.

Mutati’s party, on the other hand, filed an amended defence dated 24th July 2018, for their defence arguinmg that Mutati is not the MMD National Secretary

MMD and claimed that they were still members of the MMD as their expulsions from the party were illegal and as such null and void ab initio.

Mutati argued that he was lawfully elected at a lawfully convened convention, after what they claim to be the expiry of the term of office of the President of the party and all other party organs, including the NEC.

They also argued that their expulsions and suspensions were illegal and in defiance of the rules of natural justice and that they were purportedly aimed at preventing the Mutati from exercising his constitutional right to contest the position of party president.

“In paragraph 6 they say that they have been properly recognised as office bearers by the Registrar of Societies in accordance with the Societies Act; in paragraph 7 they claim the resolutions passed by the NEC on 30th January 2016, at MIKA were illegal and contrary to the Party and Republican Constitution; in paragraph 8 they concede that they did not pursue their claim in the Constitutional Court at that time but withdrew the action because the Constitutional Court had allegedly not commenced operations,” reads the submissions.

“MY LADY, the reason we have detailed the contents of the Defendant’s Defence is due to the fact that the Witnesses brought by the Defendants during trial made many proposals which are not supported by what is pleaded on record. For example, the witnesses kept saying the convention was called by the ‘people’ through petitions, but this was not pleaded anywhere in the defence. The witnesses also kept requesting for what they termed as reconciliation and some even asked for a convention to be ordered by the Court but none of this is pleaded.”

To be continued

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