Ex-parte injunction, order of committal proceedings tainted by irregularity of originating process – Chitika

MMD national secretary Elizabeth Chitika says the ex-parte order for interim injunction dated March 20, 2021 and the subsequent ex-parte order granting leave to operation save MMD to commence contempt proceedings are tainted by the irregularity of the originating process and cannot be sustained.

This is in a matter where former Kamfinsa member of parliament Webby Chipili and 19 others are challenging the election of Nevers Mumba and Chitika and are seeking a declaration that the extra-ordinary convention held on March 20, 2021 which ushered them as leaders of MMD is illegal and void ab initio.

In a notice of motion to raise preliminary issue against contempt proceedings, Chitika is seeking a determination on whether the court has jurisdiction to grant any orders in the contempt process pending an application to set aside the originating process for irregularity.

She wants a determination on whether MMD vice-president Reuben Samboh, Winnie Zaloumis, Clement Zulu and Gregory Mofu, who are not parties to the cause of action commenced by Chipili and 19 others and not named in the ex-parte order of interim injunction signed on March 20, 2021, can be cited for contempt.

Chitika further wants a declaration whether it is competent to undertake contempt proceedings based entirely on conjuncture without any proof of service of the court process being exhibited anywhere on the court record or in any affidavit.

According to an affidavit in opposition to notice of motion for an order of committal and in support of notice of motion to raise preliminary issues against contempt process, the MMD leaders want the court to discharge the committal proceedings against them.

Chitika said the order of interim injunction on which the purported contempt proceedings were anchored was addressed to herself and Mumba and there was no reference to Sambo, Zaloumis, Zulu and Mofu in the ex-parte order of interim injunction or in the originating process.

She said a court order cannot be directed to the whole world and cannot be claimed to have been disobeyed by people who are not parties to the claim or named in the order.

“In any event, the contempt application does not state how or in what capacity Sambo, Zaloumis, Zulu and Mofu as alleged contemnors were to implement the orders in the ex-parte order for interim injunction,” Chitika said.

“A person cannot be said to have failed to undertake a task if that person has no authority or standing to undertake the task. In so far as the purported contempt proceedings purport to target non-parties to the action who are not named in the ex-parte injunction order dated March 20,2021 is incompetent.”

Chitika stated that there was a pending application before court to set aside the originating process for irregularity.

She said no valid orders could be issued by the court pursuant to irregular originating process because such irregularity takes away the jurisdiction of the court to grant any order under the said cause.

She insisted that no service was personally effected on herself or Mumba and that the plaintiffs were not members of MMD and had no locus standi in the matter.

But in an affidavit in opposition to affidavit in support of summons to set aside originating process for irregularity, Geoffrey Mulenga on behalf of the plaintiffs, said that the breach of a regulatory rule was curable and not fatal, depending on the nature of breach and the stage reached in the process.

Mulenga said the gravity of the amendments to be made were minor.

“No prejudice will be occasioned to the defendant if the court allows the said amendment as this matter is in its early stage and conversely the interest of justice shall be served,” said Mulenga.

And in their skeleton arguments, the plaintiffs claimed that Chitika was personally served with the injunction when it was thrown at her feet after she declined to receive it in a civil way.

The plaintiffs said the person appointed to serve the document served the injunction personally and non-compliance with the same was voluntary.

“The senior members of the party did in fact receive the injunction and constructive notice is thereby imputed on the defendants. The injunction is proper and not irregular due to the fact that the requisite service was effected upon the defendant in accordance with Order 10 Rule 19 of the High Court Rules,” said the plaintiffs.

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