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Mkaika MP appeals against judge’s refusal to reverse his dismissal of his petition

MKAIKA member of parliament Peter Phiri has appealed Lusaka High Court judge Wilfred Muma’s refusal to review his decision to dismiss a petition in which the former was challenging his expulsion from the MMD.

According to a notice of appeal, Phiri says he intends to appeal to the Court of Appral judge Muma’s ruling to dismiss his petition in its entirety.

“The petitioner being dissatisfied with the ruling of Justice Wilfred Muma dated December 10, 2020 in the High Court intends to appeal to the Court of Appeal against the whole of the said ruling,” read the notice.

In his memorandum of appeal, Phiri wants to challenge the court’s decision on grounds that judge Muma erred in law and fact when he held that there was no fresh evidence produced to warrant the review of his ruling in the face of the evidence exhibited in the appellant’s affidavit in support of the application before him.

Phiri said judge Muma erred in law and fact when he dismissed his application by placing reliance on Order 6 Rule 8 of the High Court rules and subsequently holding that it was immaterial that all the other copies of the petition were signed if the one on the court’s record is unsigned.

In his ruling declining to review his decision to dismiss a petition, justice Muma said he could not review his decision to dismiss Phiri’s petition as the latter did not produce fresh evidence or sufficient grounds warranting him to review his decision.

In this matter, Muchinga Constituency member of parliament Howard Kunda, Serenje Central’s Maxwell Kabanda, and Phiri, in their individual petitions cited party national secretary Elizabeth Chitika as a respondent seeking a declaration that their expulsion from the party was null and void.

Kunda, Kabanda and Phiri want an order that their purported expulsion by the party dated August 18, 2020 was ultra vires Articles 1(3), 2, 11, 20 and 21 of the constitution of Zambian as amended by Act no.2 of 2016, therefore was void and of no legal effect.

The three want a declaration that any purported suspension relating to them which violates the Bill of rights of the constitution of Zambia be declared null and void ab nitio.

They are seeking a declaration that the purported expulsion from the party was illegal, as it was procedurally improper and absolute defiance of the established rules of natural justice.

Following the consolidation of the three petitions, judge Muma threw out Phiri’s petition for irregularity as it was not signed.

Phiri in an affidavit in support of ex-parte summons for an order to review court order asked the court to review its decision to dismiss his petition.

He claimed that that he signed several copies of his petition and their accompanying affidavit before filing the same into court.

“I may have inadvertently neglected or omitted to sign one copy of my petition and that the same was erroneously filed into court and placed on the court’s record,” Phiri said. “The irregularity noted by this honourable court in its order of the 19th November 2020 was merely an innocent omission on my part as I signed all the other copies of the petition prior to filing into court on September 27,2020.”

Phiri stated that he believed that there was likelihood of success on his application as the evidence highlighted was not available to the court at the time the order was made and it would be in the interest of justice to allow his application as no prejudice would be suffered by Chitika.

Justice Muma directed that the High Court Act was very clear that the plaintiff or their advocate should sign a writ or summons before presenting them before the court.

“No fresh evidence has been presented to warrant the court to re-evaluate its decision. The mere fact the petitioner alleges that he signed other copies of the petition does not stand out as material or fresh evidence,” said judge Muma. “It still remains that the petitioner presented a petition that was irregular before me. In light of the foregoing I decline to review my decision to dismiss the petition. I am accordingly dismissing this application.”

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