MMD national secretary Elizabeth Chitika has submitted that herself and other alleged contemnors will be highly prejudiced if the court dismisses the party’s application to discharge the committal process because there is no basis upon which the court can find in favour of the committal proceedings.
She said the order of interim injunction did not specify in what capacity it was restraining party vice-president Reuben Samboh, Winnie Zaloumis, Clement Zulu and Gregory Mofu because the court order cannot be directed to the whole world.
In an affidavit in response to composite affidavit in opposition to notice of motion for an order for committal and affidavit in opposition to affidavit in support of notice of motion to raise preliminary issues against contempt process, Chitika argued that the four should not be held accountable on mere allegations that the order was purportedly served on them.
In this matter, 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 was illegal and void ab initio.
In the composite affidavit, Geoffrey Mulenga argued that the ex-parte order of injunction not only restrained the defendants in the main matter but also extended to servants, agents or whosoever from disobeying the court order.
He said Chitika, who is the first contemnor, was served with the injunction but she decided to run away, leaving the document behind.
Mulenga stated that Samboh was served with the injunction and he read the contents.
He said there was video footage showing Chitika running away from being served and Samboh reading the content.
Mulenga alleged that upon receiving the injunction and refusing to sign for it, the party president called for a meeting where Samboh, Zaloumis, Zulu and Mofu discussed it and resolved to proceed with the convention regardless of the restraining order.
“I am aware that Dr Mumba addressed his members over the ex-parte order of injunction,”Mulenga said.
“The alleged contemnors were properly served and were aware that there was an ex-parte order of injunction but deliberately disobeyed the order and this can be seen from the way Dr Mumba talked about the injunction both on ZNBC and Diamond TV.”
However, Chitika maintained that she was not served the ex-parte order of interim injunction and the purported video does not show what was being claimed and it must be expunged from the record.
She said there was no proof that the injunction was discussed as Mulenga was not part of the said meeting and he could not disclose information of a meeting he did not attend.
Chitika stated that a newspaper article could not be used to show proof of service of an order because the statement in the article does not save as formal replacement of service of the process.
“The applicants are basing their purported proof of service on the alleged contemnors by mere assumptions but also consistently failing to show proper service on the contemnors before this court. This court should not entertain the said assertions as they are embedded on speculations and the court cannot make an order based on speculative evidence,” she said.
“Service of the order of the court should have been served by the applicant’s advocates. No wonder the applicants have failed to show proof of service because their advocates on record did not serve the said documents and not anyone can serve process as there are rules involved in serving process which the applicants have failed to follow.”