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Nawakwi pleads fair comment in HH defamation suit

FDD leader Edith Nawakwi says her claims that UPND leader Hakainde Hichilema, as a transactional advisor to the MMD government during the privatisation process, illegally benefitted himself when he fraudulently acquired a house belonging to Lima Bank are of fair comment.

Nawakwi said the allegations that Hichilema was a criminal, acquired property on Serval Road in Kabulonga belonging to Lima Bank limited, allegations relating to the receivership of RAMCOZ and abuse of the privatisation process, were factual and true in substance as she was expressing her opinion.

Nawakwi said the words were of fair comment and made without malice.

She said the said facts were a matter of public interest.

This is in a matter where Hichilema has sued Nawakwi for defamation of character, demanding US$3 million as damages for libel.

Hichilema wants Nawakwi to reward him US$3,000,000, which he has spent in mitigating the effect of her conduct towards him which emanate from the publication of her defamatory utterances.

He also wants an injunction restraining Nawakwi whether by herself, servants or agents or otherwise from further publishing or causing to be published or broadcast the defamatory words or similar.

In his statement of claim, Hichilema said on August 27, 2020, on Hot FM on a programme dubbed “The Hot Seat” hosted by Zachariah Chavula and on Kwithu FM, Nawakwi caused to be published defamatory words by radio, by live internet streaming and by digital broadcast, with regard to the acquisition of property known as 14/3/A/F488a Serval Road, Kabulonga in Lusaka by Hichilema.

Nawakwi said Hichilema was lucky not to have been booked by the Anti Corruption Commission with regards to the country’s privatisation process and urged him to keep quiet.

However, Hichilema contended that the defamatory words by Nawakwi in their natural and ordinary meaning were meant to be understood that he was a thief, a corrupt person, a person of questionable character and that he is guilty of numerous offenses relating to the dissolution of Lima Bank and the sale of its assets when in fact not.

He said the defamatory words were false and published maliciously as he (Hichilema) has never acted as receiver, manager or liquidator of Lima Bank contrary to what is alleged by Nawakwi.

Hichilema argued that Subdivision 14/3/A/F488a, Serval Road Kabulonga Lusaka never belonged to Lima Bank prior to him acquiring it as alleged by Nawakwi.

“Contrary to the innuendo created by the defendant when she uttered the defamatory words, the plaintiff acquired the subject house in an arm’s length transaction two years prior to the commencement of the process of winding up of Lima Bank,” Hichilema said. “The plaintiff did not conduct himself inappropriately or commit any criminal offense in relation to the acquisition of the subject house as alleged by the defendant.”

But Nawakwi in her defense argued that she was not the first person to raise the issue of Hichilema’s acquisition of property No. Subdivision 14/3/A/F488a Serval Road, Kabulonga Lusaka, claiming The Post Newspaper limited (in liquidation) on Friday May 18, 2007 wrote about the said allegations in its editorial, including the Times of Zambia on January 14, 2012.

Nawakwi said she admits that the details relating to the liquidation of Lima Bank limited were supposed to be a matter of public record and they call for accountability and transparency.

She claimed that she had conducted a search at the lands and deeds registry which revealed that on March 28, 1989, a Samson Siatembo mortgaged Farm no. 1924 whose area was 2,415.5580 hectares, Kalomo District, Southern Province, to secure K10,600 from Lima Bank limited.

“On September 14, 2005, Lima Bank limited (in liquidation) caused the registration of memorandum of discharge of the mortgage relating to Farm no.1924 whose area was 192.9050 hectares,” Nawakwi said.

She further stated that Hichilema acquired the said farm at a consideration of K110,000,000 and the payment of property transfer tax of K3,300,000 was certified by the registrar of lands and deeds on September 14, 2004.

Nawakwi said the assignment of subdivision A Farm 1924 at the consideration of K110,000,000…was registered and the assignor being Feluna Hatembo (administratrix of the Estate of Samson Hatembo) and the assignee being Hakainde Sammy Hichilema.
She said the search did not reveal any evidence of requisite authority of the court to sell the property.

The FDD leader who referred to other related cases before the Livingstone High Court and Kalomo Subordinate Court explained that she conducted a search at Patents and Companies Registration Agency (PACRA) which revealed that Hichilema is a shareholder and has interest in African Life Financial Services Zambia limited, Sanlam Life Insurance Zambia limited, Menel Management Services limited, Tiyende Consortium limited incorporated and Benefits Consultancy services limited.

Nawakwi said on March 25, 1997, Lima Bank limited was placed under liquidation and Messers Edgar Hamuwele and Christopher Mulenga, both of Grant Thornton were appointed as joint liquidators, and she would produce evidence at trial relating to the operation of Lima Bank limited (in liquidation) account no.00302400006373 maintained at Zambia National Commercial Bank (ZANACO).

She stated that Hichilema might not have acted as a receiver, manager or liquidator of Lima Bank but Grant Thornton was actively involved in the liquidation process and disposal of assets of the said Bank.

“As a citizen of Zambia, the defendant (Nawakwi) possess the sufficiency of interest and legitimate concern relating to the plaintiff’s non-disclosure of interest. The plaintiff (Hichilema) did not disclose at the material time, has not disclosed and continues to resist disclosure,” Nawakwi alleged. “It is trite law that the claim for purported liquidated special damages in a tortious liability suit is inadequate and is legally incompetent.”

Nawakwi further argued that the endorsement of the particulars of claim for libel on the writ of summons and statement of claim are incompetent.

” Save as is admitted herein before the defendant denies each and every allegation contained in the statement of claim as if the same was particularly set out and traversed seriatim,” said Nawakwi.

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