Chileshe Mulenga and Ors v The Attorney (2017 /HP/ 1212) [2017] ZMHC 561 (17 August 2017)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 1 7 AUG 2017 2017 /HP/ 1212 IN THE MATTER: ORDER 54 RULES 1, 2 AND 4 OF THE RULES OF THE SUPREME COURT OF ENGLAND (WHITEBOOK) 1999 EDITION IN THE MATTER OF: PART III OF THE CONSTITUTION OF ZAMBIA CHAPTER 1 OF THE LAWS OF ZAMBIA FOR THE PROTECTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL IN THE MATTER OF: ARTICLE 13, 18 OF THE 15, 17 AND CONSTITUTION OF ZAMBIA CHAPTER 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: SECTION 33 OF THE CRIMINAL PROCEDURE CODE ACT CHAPTER 1 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM ( BETWEEN: CHILESHE MULENGA MAINZA CHOONGO LEYS CHITOMA JAMES HAMBULO WONDER NAKAZUKA KAHYATA ZHYINGA BIGGIE MUBAMBE JUSTIN MUTONGA DAVID NDUMBA AMON MWEEMBA AND THE ATTORNEY GENERAL 1 ST APPLICANT 2ND APPLICANT 3RD APPLICANT 4TH APPLICANT STH APPLICANT 6TH APPLICANT 7TH APPLICANT 8TH APPLICANT 9TH APPLICANT 10TH APPLICANT RESPONDENT CORAM: HONOURABLE JUSTICE MR. MWILA CHITABO, SC For the Applicants: Ms. M Mushipe of Mesdames Mushipe & Associates For the Responde nt: Mr. C. Mulonda - State Advocate RULING Cases referred to: 1. Kalenga M'poyou and Kane Mounourou (1979) ZR 28 (Reprint) (HC) 2. Patrick Mainza George Mudenda _and Lameclc Kamanga v. The People ( 1981) ZR 146 (HC) 3. Zambia National Holdings Limited v. United Nations Independe nce Party) (1993/ 1994) ZR 1115 4. Access Bank (Zambia) Limited v. Group V Zcon Business Joint Venture SCZ/ 8/ 52/ 2014 5. Khalid Mohamed v. The Attorney General (1982) ZR 49 6. Moses Chapakwenda and others v. Attorney General (2011) 2 ZR431 7. Mobil (Z) Limited v. Msiska (1983) ZR 86 8. Mohamed Muazu v. The Attorney General (1988/ 1989) ZR 8 (SC) Legislation referred to: 1. Rules of the Supreme Court of England) 1999 edition White Book 2. The Constitution of Zambia Chapter 1 of the Laws of Zambia 3. The Constitution a/Zambia) Act No. 35 of 2016 R2 4. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 5. Habeas Corpus Acts of 1672 and 1816 of England 6. Interpretations Act, Chapter 2 of the Laws of Zambia 7. The Constitution a/Zambia No. 20 o/2015 This is an application for leave to issue writ of Habeas Corpus Subdiciendum (herein after referred to as the writ of Habeas Corpus commenced by Chileshe Mulenga, Mainza Choongo, Leys Chitoma, James Hambulo, Wonder Nakazuka, Kahyata Zhyinga, Biggie Mubambe, Justin Mutonga, David N dumba and Amon Mweemba(herein after referred to as the "Applicants"). The application was by mode of originating motion anchored under Order 54 ( 1) , (2) and 4 of the Supreme Court Rules of Enqland1 Articles 13, 15, 17 and 18 of the Constitution of Zambia 1 and Section 33 of the Criminal Procedure Code3 . The app lication was supported by a joint affidavit and an affidavit in reply deposed to by the relatives of the applicants. The essence of which was that the Applicants were arrested and d etained and restrained from seeing their relatives and lawyers and the location of their detention was unknown and a s such the Applicants were unable to depose to the affidavits themselves. It was deposed that the Applicants were picke d on 12th July, 2017 from their respective places of business without warrant by Zambia Police Officers without warrant nor assigning reasons for the R3 purported arrests. The Applicants were tied up, beaten and paper sprayed and blind forded and airlifted to Lusaka. On 13th July, 2017 the Applicants 1 and 2 were traced at Ridgeway Police Station and Woodlands Police Station respectively. The duo were then interrogated and beaten but were not informed of the reasons for their detention and arrest. The Applicants were later conveyed to Lilayi but their relatives were l · not allowed access to the Applicants nor were they allowed to give them food; the police explaining that the Applicants were being provided with food. It was deposed that efforts to s ecure police bond have proved futile as the Applicants h ave not been charged of any known offence and access to the Applicants has been made practically impossible. That the depondents have by their Advocates and they verily believe that the continued detention of the Applicants is not only unjustified but is also unlawful as it is unconstitutional in that the t fundamental a nd constitutionally guaranteed right to freedom and liberty are being blatantly violated and unfairly prejudiced by government officials currently in control of their custody. The depondents were further advised that any person who is arrested or detained and who is not released shall be brought without undue delay before a Court within 48 hours. Further, the Applicants are presumed innocent until proved guilty. It was further deposed that if arrested persons are not tried within a R4 reasonable time, they ought to be released wither unconditionally or upon reasonable conditions. In conclusion it was deposed that in the circumstances of the case, this was a proper case for the Court to grant and issue the writ of habeas corpus and to order the release of the Applicants and free then from their unjustified detention. The Respondent filed in an opposing affidavit. The gravamen of ( which is that the Applicants herein have made the application as class applicants and not individual Applicants. That consequently, it is difficult for the Respondent to establish and fully appreciate the basis of each individual's application. The affidavit concluded by stating that the Respondent verily believed the application was irregula r . The Applicants filed in an affidavit in reply deposed to by Chisengo Ndumba on behalf of the g th Applicant. The essence and in so far as it is not repetitive is that notwithstanding the contention that ( this action has been irregularly brought as a class action and it would be difficult to appreciate the individual Applicants basis of each individual's application, the Respondent has not disputed that the Applicants are in the Respondents custody nor have they advanced reasons to justify the Applicants prolonged detention. It was deposed that the Court was duty bound to safeguard the constitutionally guaranteed hu1nan rights. It was averred that the Applicants are being detained incommunicado for long period and treated inhumanly by the Respondents agents 1n blatant RS contravention of the constitution. That the Court should not dismiss the action purely on mere technicality. The Applicants advocates filed in list of authorities and skeleton arguments that also addressed the Respondents list of authorities and skeleton arguments as follows:- 1. ARRESTED AND DETAINED PERSON TO BE TAKEN TO COURT AND BE TRIED Under this limb, Learned Senior Counsel relied on Article 13 (3) of the Constitution2 for the proposition that "any person who is arrested or detained and who is not released s hall be brought without undue delay before a Court and if not tried within a reasonable time} then he shall be released either unconditionally or upon reasonable conditions" 2 . DUTY TO TAKE DETAINEE TO COURT WITHIN 24 HOURS Reference was then made to Section 33 of the Criminal procedure Code3} p ointing out that "any person who has been taken into custody without warrant for an offence other than an offence punishable with d eath, the officer in charge of the police station to which such person s hall be brought may in any case and shall if it does not appear practicable to bring such person before an appropriate Court within 24 hours after he has been taken into custody". R6 It was submitted that notwithstanding the provisions of the above pieces of legislation in (1) and (2) the Applicants have been held incommunicado. 3. WRIT OF HABEAS CORPUS Arising from the submissions under paragraph (1) and (2) above, the Applicants were obliged to launch process for issue of leave for issue of a writ of habeas corpus. Counsel then made reference to Order 54 Rule (1 ), (2), (3) and (4) of the Supreme Court Rules of Enqland 1 • The provisions relate to the jurisdiction of the Court to hear an application for such writ which must be supported by an affidavit deposed to by the Applicant or another person where the restrained person is not able to make the a ffid avit. 4. SIGNING OF AFFIDAVIT BY A PERSON OTHER THAN APPLICANT ~ , It was submitted that the depondents have explained how they came to sign the affidavits since it was difficult for the Applicants to do so. 5 . JOINT OR CLASS APPLICATION It was argued that the case of Kalenga M'poyou and Kane Mounourou 1 which struck off the file a notice of 1notion for writs of habeas corpus on account that an application for such a writ may not be joint. It was argued out that there was no application before the Court to have proceeded to hear the application and pronounce R7 itself on it since there was a n irregularity that went to the root of the a pplication. Counsel attacked the ch a llenge on the Applicants application on ground of defect of form. 6. DOCUMENT OR INSTRUMENT NOT TO BE VOID BY REASON OF DEVIATION FROM FORM To this extent she called in a id the provisions of Sections 4 7 of the Interpretation and General Provisions Acts, which stipulates that an \ , instrument or document s h a ll not be void on account of defect in form or irregularity. 7 . (i) RAISING OF A LEGAL CHALLENGE WHETHER FLOUTS APPLICANTS APPLICATION It was submitted by Learned Counsel that by raising a legal ch a llen ge the Responde nt was flouting the Applicants application. In h er view Order 54 (1) (2 ) and (3) provide for joint applications. 7(ii) SU~S~QUENT CASE OF PATRICK M_AINZA, GEORGE MUDENDA AND LAMECK KAMANGA V. THE PEOPLE2, ENTERTAINING JOINT APPLICATION It was argued that in the above case the High Court entertained a joint habeas corpus application. She therefore urged the Court not to follow the Kalenga M'poyou and Kane Mounourou case (supra) decided by Moodley J, (as he then was). 8. APPLICABILITY FO THE 1672 HABEAS CORPUS ACT OF ENGLAND TO ZAMBIA R8 It wa s submitted that the above Act a pplies to Zambia a s pronounced by Sakala, J (as he then was) in the case of Patrick Mainza, George Mudenda and La.meek Kamanga v. The People3 . 9. PURPOSE OF WRIT OF HABEAS CORPUS It was Learned Counsel's submission tha t is premised on the principle that persons will not b e held in d e tention for unlimited \.. period of time without being brought before a Court to trial. 10. GUIDELINES IN ADJUDICATION It was Coun sel' s s ubmission that in adjudicating the Court should take cognisance of Article 118 (2 ) (e) and ID of the Constitution6 whic h provides th at in exercising judicial authority shall do so wit hout undue regard to p rocedural technicalities and values and p rinciples of th e Constitution . Learned Coun sel for t h e Respondent filed brief list of authorities f · and sk ele ton a rguments in opposition. The grude nom is that:- (1) (a) A writ of habeas corpus is a personal action In support of this proposition counsel referred to Order 54/ 0/ 2 where it sta tes :- "The writ of habeas corpus ad subjudiciendum which is u sed to test the validity in the commit1ne nt of a pris oner, or want o f iurisdiction to hold him, is the most important of all of the writs of this denomination. (underlining mine) R9 (b)Order 54 Rule 1 ( 1) (2) and (3) Learned Counsel cited the above order which provides for an "application to be made ought to be supported by an affidavit by the person restrained................ and where the person restrained is unable for any reason to make the affidavit) may be made by some other person on his behalf and that affi,davit must state that the person restrained is unable to make the affidavit himself and for what reason)' (c) Order 54 / 1 / 5 It was submitted that under this order, it is provided that:- "A writ of habeas corpus will issue where someone is detained without authority or the purported authority is beyond the powers of the p erson authorizing the detention and so is unlawful" Learned Counsel concluded by stating that an application for a writ ( c of habeas corpus is persona in nature as such it should be made by an individual. At the hearing both Counsel made submissions more or less, they adopted their respective affidavits and articulated their respective positions. I will not therefore replicate the same save for those submissions which were not captured in the head of arguments. It was Learned Senior Counsels submission Ms. Mushipe that the Applicants are being held without being provided with water, food RlO and beddings. That they are being held incommunicado and are on hunger strike. She feared that they m ay perish. Learned Counsel Mr. Mulonda submitted that the 1 st , 2 nd , 3 rd , 5 t h and 6th Applicants have been officially charged of Arson and being found in possession of dangerous weapons and docket s. In respect of the holding in the Patrick Mainza, George Mudenda and Lameck Kamanga v. the People case, it was his submission (,.. that in the case, the state had been desirous of entering a nolle prosequi save that the Courts filed could not be located and as such did not support the detention of th e trio on charges of Aggravated Robbery a nd it wa s on that basis that the writ of habeas corpus was gra n ted. In respect of the Courts duty under Article 118 (2 ) (e) and (f) Learned Counsel called in a id the case of Access bank (Zambia) Limited v. Group V I Zcon Business joint venture, 4 where the Court of last resor t ob served th a l:- "The Constitution never means to oust the obligations to comply with procedural imperatives as they seek from the Court" In respect of the original and unlimited jurisdiction, it was Counsels submission that the case of Zambia National Holdings Limited v. United Nations Independence Party, whereas the Court has that jurisdiction the Court is bound to adjudicate in accordance with law including compliance with procedural requisites as well as s u bstantive limitations. Rll Learned Counsel Mr. Mulonda to buttress this legal proposition placed before the Court the case of Access Bank (Zambia) Limited v. Group V/Zcon Business Joint Ventures5 , for the proposition that "The Constitution never means to oust the obligation of the parties to comply with procedural imperatives to seek justice from Courts)) '( ,., He therefore submitted that I should not be persuaded to allow the Applicants to use Article 118 (2) (e) of the Constitution to flout laid down imperative s . He concluded by submitting that the Applicants application be dismissed for bein g misconceived at law and irregular and that costs be for the Respond ents . In reply Learn ed Senior Counsel Ms Mushipe invited the Court to follow the Mainza case (supra) where the Court according to her entertained a j oint h a beas corpus application and not to follow the case of Kalenga wh erein the habeas corpus application was terminated on a ccount of application the Applicants. She submitted by pointing out that the absence of an opposing affidavit is ground enough to show that the Respondent has failed to justify why its agents are holding in custody the Applicants. She concluded by saying, the Applicants rights under the constitution are being violated by being detained without reason nor R12 Learned Counsel Mr. Mulonda to buttress this legal proposition placed before the Court the case of Access Bank (Zambia) Limited v. Group V/Zcon Business Joint Ventures5 , for the proposition that «The Constitution never means to oust the obligation of the parties to comply with procedural imperatives to seek justice from Courts)) ( ..,. He therefore submitted tha t I should not be persuaded to allow the Applicants to use Article 118 (2) (e) of the Constitution to flout laid down imperatives. He con cluded by submitting that the Applicants application be dismissed for being misconceived at law and irregular and that costs be for the Respondents . In reply Learned Senior Counsel Ms Mushipe invited the Court to follow the Mainza case ( supra) where the Court according to her entertained a joint habeas corpus application and not to follow the case of Kalenga wherein the habeas corpus application was terminated on account of application the Applicants. She submitted by p ointing out that the absence of an opposing affidavit is ground enough to show that the Respondent has failed to justify why its agents a re holding in custody the Applicants. She concluded by saying, the Applicants rights under the constitution are being violated by being detained without reason nor R12 unless there are other constitutional constraints to hear and determine the Petition. Unlike in an application for leave to issue a writ of habeas corpus the Court has discretion to grant or deny the leave to issue the high writ. Once a party has elected to anchor his application under the high writ then he or she is expected to strictly comply with mandatory legal requirements catalogued in Order 54 of the Supreme Court Rules and the judicial interpretations placed on the said Order as will be illustrated in due course. The submission under this limb is destitute of merit. 2 . Duty to take detainee to Court within 48 hours under Section 33 of the Criminal Procedure Code The a pplication be fore this Court is clearly is for leave for issue o fa writ of h a beas corpus which has been captioned as "Originating motion for writ of habeas corpus pursuant to Direction of the Court:' This is the application before me and not an application for Constitutional bail pursua nt to 33 of the Criminal Procedure Code3 ' though the said section is captioned in the heading, the Applicants application is clearly premised on the high writ anchored on Order 54 as foresaid. The Applicants Advocates have not provided me with any authority for the proposition that an Applicant is entitled to bring multiple claims under the bill of Rights, Habeas Corpus and Section 33 of the Criminal Procedure Code. R14 c· It is the duty of the Advocates after navigating and interrogating the various modes of launching of actions to choose the most convenient best for the interest of their clients taking into account ' the peculiar circumstances. After all, a respected litigant depends on the professional excellence and advise of the Learned Counse l and it is on that basis that a fee is charged for such services. It is not for the Court to start amending the motions so as to aid a party engulfed in a procedural predicament brought about by the Applicant moving the Court. In the Mainza case the Court granted the high writ to issue in the absence of an opposing affidavit. The case reveals that the State (Respondent) were actually anxious to enter a nolle prosequi but for the missing Court record. In my view the Respondent in that case the application was not opposed. The Applicants had stayed for 3 years in detention. Quite clearly, lhe case was not decided on merit and to adopt the pronouncement of Siavwapa J, in the case of Moses Chapakwenda and others v. Attorney General6 "a consent Judqment has no evidential value as it is not tried on merit". Further the Mainz a case did not discuss or ref er to the earlier case of Kalenga (supra) which held that a joint action was inappropriate in a writ of habeas corpus application on the reading of the prov1s1ons of Order 54 of the White Book. It is pointed out there RlS that a writ of habeas corpus 1s an action 1n person and that "Corpus, means body and not bodies". In my view, the Mainza case heavily relied upon by the Applicants was decided per incuriam. 3 . Writ of Habeas Corpus It is not in dispute that the high writ of habeas corpus is available to any of the Applicants in so far as he or she complies with the rules prescribed within the four corners of Order 54 and as judicially pronounced upon by precedent. One of the requirements is that the affidavit ought to be signed personally or by another person on behalf of the Applicant where the Applicant cannot practically append his s ignature to the affidavit. I have n o difficulty in accepting that the affidavits were properly sworn by other persons since the Applicants were not in a position. What is unaccepted is that affidavits were made communally or jointly which was disapproved in the Kalenga case. I do not accept the argum ent that the non compliance goes to procedure and form. In my view, the non compliance goes to substance in a writ of h a beas corpus which by its nature is ~ personal. In any event, even assuming I was said to be wrong 1n this approach, and it were said that the matter has to be adjudicated upon on merit; reference has already been made to Article 118 (2) (e) in respect of the case of Access Bank (Zambia) Limited (supra) R16 where the Court of last resort a uthoritatively pronounced itself that:- ((The constitution never means to oust the parties obligations to comply with procedural imperatives as they seek justice from Courts} 4. Document or Instrument not to be void by reason of deviation from form In support of the above legal proposition, reliance was p laced on Section 17 of the Interpretations and General Provisions Act. I have already alluded to this submission in one or two of the preceding paragraphs where I have observed that the non compliance with Order 54 as regards signing affidavit in persona does not to form but to s ubstantive procedural impositions and such non compliance is fatal. 5. Failure to file affidavit in opposition ( It was canvassed by the Learned Senior Counsel for the Applicant that there being no opposition then the Applicants ought to succeed. It is trite law that in the absence of a challenging affidavit, the Respondent is deemed to have admitted t h e facts averred in the affidavit. This however does not proscribe the Respondent to oppose affidavit evidence on points of law. In any event, it is settled law in our jurisdiction that the burden lies on he who alleges. Ngulube DCJ (as he then was) rested a ll debate R17 on the issue when he authoritatively pronounced himself on the matter in the case of Khalid Mohamed v. the Attorney General7, he craftily put it this way:- "An unqualified proposition that a Plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A Plaintiff must prove his case and if he fails to do so, the mere failure of the opponents defence does not entitle him to a Judgment. I would not accept a proposition that even if a Plaintiffs case has collapsed of its inanition or for some reason or other, Judgment should nevertheless be given to him on the ground that a defence has failed" I am bound by the said pronouncement. In the case in casu, there is a serious legal challenge on the non compliance with Order 54 of the Supreme Court Rules of England. If the challenge is meritorious, it has the effect of torpedoing the Applicants applications. I do n ot therefore agree that the mere fact that an ( affidavit in opposition has not been filed ought then as a matter of course, the Court has to religiously grant the sought application. The submission under this limb is destitute of merit. 6. Whether Respondents Legal Challenge is an abuse of Court process bent on frustrating the Applicants Application It was submitted that the challenge in respect of commencing a joint or a class action in a habeas corpus application as alleged by R18 the Respondents is an abuse of Court process intended to frustrate the Applicants application. I do not agree. The Court of final resort had occasion to pronounce itself on a similar subject in the case of Mobil (Z) Limited v. Msiska 7 ) where Gardner JS, as he then was held as follows:- "Holding number 11, obtaining a tactical advantage by taking steps which are available at law is not an abuse of Court process)) This edit aptly applies to the case in casu. 7. Applicants of the 1672 Habeas Corpus Act of England It was counsels' submission that on the authority of Patrick Mainza (supra) the Habeas Corpus Act of England of 1672 applies to Zambia. This is incorrect. The Supreme Court in the case of Mohamed Muazu v. the Attorney General8 , Ngulube DCJ (as he then was) Held: - ( '7t is wrong to regard the habeas corpus Act of 1816 as part of Zambian written law .............. " It is worth noting that in the Muazu case the Court was referring the 1816 Act which follows that the 1672 Act cited by the Court in the Mainza case (supra ) had been repealed by the subsequent Act. This issue need no further investigation. R19 8. Article 117 (2) (f) It was submitted that in adjudicating the Court should factor in the principles of justice and support of the constitution. This submission on its own cannot be faulted. However, other factors have to be taken into account that in the administration of Justice there are rules, orders, regulations interalia that must be complied with for a party claiming refuge under that Article. '(Ii Justice is for all and not only of the Applicant. I have demonstrated above that there has been substantial non compliance with th e provisions of Order 54 of the Rules of the Supreme Court Rules of England. 9. Adducing evidence by Learned Counsel from the BAR It was submitted by the Learned Ms Mushipe that the Applicants were on hunger s trike, a nd it was feared they might die. This contra dicts the affidavit evidence wherein it is alleged that the :( Applicants are being d enied food. In any event a person can only be aid to be on hunger strike if he has food which he voluntarily refuses to take . On the part of the Respondent, it was submitted by Learned Counsel Mr. Mulonda that Applicants 1, 2, 3, 5 and 6 have been charged for offences of Arson and being in possession of dangerous weapons. R20 I should on the outset observe that it is highly irregular and undesirable for Counsel to adduce evidence from the Bar. In the circumstances, I will attach no probative or evidential to the both Learned Counsels submissions in respect the inadmissible evidence sought to be sneaked in from the Bar. Having traversed, navigating, evaluated and analysed the various legal issues ably articulated by both parties and factoring the affidavit evidence; I have come to a conclusion that this is not a fit and proper case to grant leave to the Applicants to issue the high writ of h abeas corpu s . The application is struck out. I will follow the path taken by Moodley, J (as he then was 1n the Kalenga M'poyou case when h e pronounced that "the striking out of the application is no bar for the Applicants to relaunch subsequent applications or actions 1 ' ( I will make n o order a s to costs. Put differently, each party has to bear its own costs. Leave to appeal is gra nted. D~livered under my hand and seal this 17th day of August, 2017 Mwila Chitabo, SC Judge R21