Shamwana v Mwanawasa [1994] ZMHC 2 (29 May 1994)

EDWARD JACK SHAMWANA v LEVY MWANAWASA (1994) S. J. 93 (H. C.) HIGH COURT CHIEF JUSTICE OF ZAMBIA 20TH AND 30TH MAY, 1994 Flynote Injunction - Referring to plaintiff as 'treason ex-convict' in light of a full presidential pardon Headnote The plaintiff announced his intention to contest the Mumbwa by-election and the defendant started referring to him as 'a treason ex-convict'. The plaintiff then applied for an interim injunction to restrain the defendant “by himself, his agents whomsoever or servants referring to the plaintiff as a treason ex-convict or as a convict in the light of a Presidential absolute and unconditional pardon”. Held: (i) Any judge faced with an ex parte application for an injunction is duty bound to critically examine and not gloss over such application and to be satisfied that the situation revealed justifies an order on an urgent basis pending an inter parte hearing shortly thereafter Mr C. Hakasenke of Shamwana and Company. For the plaintiff: For the defendant: In person. _________________________________________ Ruling CHIEF JUSTICE OF ZAMBIA: delivered the judgment of the court. On 5th May,1994, the Plaintiff issued a Writ of Summons out of the principal registry endorsed with a claim for: “1. Damages for malicious slander uttered at different fora since plaintiff declared his intention to stand as a President of National Party and as a candidate for the Mumbwa Constituency by election that the plaintiff is an ex-convict or similar sentiments asserting that for that reason he is unfit to govern Zambia when it fact it is a fact that Political Prisoners have been elected leaders in their countries throughout the World, and the plaintiff received a complete and unconditional pardon. 2. Injunction restraining the Defendant, his agents whosoever, or servants referring to the plaintiff as treason ex-convict or as convict in the light of a Presidential absolute and unconditional pardon. 3. Further or other relief.” By an ex parte summons, the plaintiff applied for an interim injunction to restrain the defendant “by himself, his agents whomsoever or servants referring to the plaintiff as a treason ex-convict or as a convict in the light of a Presidential absolute and unconditional pardon”. Although I had during the hearing refused an application made by the defendant under Order 32/13 of the Rules of the Supreme Court (1993 White Book) to adjourn the whole of the hearing into open court, I agreed to deliver this ruling in open court of the issues addressed which I consider to be of general importance. when the application was lodged, I did not consider it appropriate to proceed ex parte and directed that the application be heard inter parte. At the last but one adjournment, the plaintiff remarked to the effect that in the normal course, he should have been given an ex parte order. p95 Let me take this opportunity to dispel the notion, which unfortunately seems to be widely held, that ex parte injunctions are available more or less as a matter of course; almost automatically for the asking. They are not and in this regard I wish to draw attention to Order 29 R. S. C.1993 White Book, especially the discussion at Order 29/1/8. I also wish to borrow from the language of paragraph 1051, Halsbury’s Laws of England, 4th Edition, Volume 24, that an injunction will not usually be granted without notice, but if the court is satisfied that the delay caused by proceeding in the ordinary way might entail irreparable or serious mischief, it may make a temporary order ex parte upon such terms as it thinks just. The granting of ex parte injunctions is the exercise of a very extraordinary jurisdiction, and therefore the time at which the plaintiff first had notice of the act complained of will be looked at very carefully in order to prevent an improper order being made against a party in his absence, and if the applicant has acquiesced for some time it will not be granted. The passage from Halsbury’s supports the proposition that it is an elementary requirement of fairness and justice that as a general rule both sides be afforded the opportunity to be heard and where it is sought to depart from this norm, as in an ex parte application for an injunction, strong grounds must be shown to justify the application being made ex parte. The application must be made promptly as soon as the plaintiff becomes aware of his or her cause of action and there is need either to preserve the status quo or to prevent irreparable or serious mischief. Ex parte injunctions, as the learned authors of the White Book and Halsbury’s Laws of England observe, are for cases of real urgency where there has been a true impossibility of giving notice to the opponent. what is more, the material that is placed before the court on an ex parte application for an injunction should disclose, at first glance or prima facie, a strong case on the merits for the possible grant of an interlocutory injunction once an inter partes hearing takes place. I make no apology for holding the very firm view that any judge faced with an ex parte application for an injunction is duty bound to critically examine and not gloss over such application and to be satisfied that the situation revealed justifies an order on an urgent basis pending an inter parte hearing shortly thereafter on a date to be specified preferably in the ex parte order, in terms of the practice direction recently issued by me on the subject. I was not satisfied on the material placed before me that this was a proper case for an ex parte order on an emergency basis. I now turn to the application which has since been heard inter partes. In coming to my decision in this ruling, I have heeded the caution given in such cases as Turnby Properties v Lusaka West Development Company Ltd (1984) ZR 85 that I should in no way pre-empt the decision of the issues which are to be decided on the merits and the evidence at the trial of the action. I have also considered the authorities cited under paragraphs 167 and 168 of Vol. 28, Halsbury’s Laws of England, 4th edition, in support of the statement that: “because of the court’s reluctance to fetter free speech and because of the questions that arise during the proceedings, such as whether the meaning is defamatory, whether justification or fair comment are applicable and as to malice, are generally for the jury - (in our case the p96 trial judge) - interlocutory injunctions are granted less readily in defamation precedents than in other matters and according to different principles.” These passages have been cited by the defendant who, like the plaintiff, is a senior lawyer in this country. I have perused the authorities starting with Bonnard v Perryman (1891) 2 Ch. 269 and Lord Denning’s remarks in Hubbard v Piti (1975) 3 A11 ER1. Since our case concerns an application to prevent by repetition a wrong that is apprehended, I consider it appropriate to quote a passage from the judgement of Lord Coleridge, C. J., in the Bonnard case at P. 284 where, after affirming the court’s power to grant interlocutory injunctions as a matter of jurisdiction, he went on to say: “but it is obvious that the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committee; but, on the contrary, often a very wholesome act is performed in the publications and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions”. In the Hubbard case, Lord Denning at p.5 cited with approval the sentiments of Lord Coleridge, C. J. about free speech and the fact that the courts will not restrain a defendant who proposes to justify the words complained of. Para. 168 of Halbury’s Vol. 28 summarises the position as follows: “it is well settled that no injunction will be granted if the defendant states his intention of pleading a recognised defence, unless the plaintiff can satisfy the court that the defence will fail. This principle applies not only to the defence of justification but also to the defences of privilege, fair comment, consent, and probably any other defence.” Cases are cited in support of each of the several aspects of the statements I have quoted and which, for the sake of brevity, I will not repeat here. I have before me affidavits on both sides and I have carefully addressed myself to the submissions. It was not in dispute that, subject to the special consideration which apply to defamation cases, the usual considerations which apply to all other application for interlocutory injunctions generally apply also to a defamation case. Thus, for example, the plaintiff’s right to relief must clearly be shown: see Shell And BP (Z) Ltd v Conidaris and Others (1975) Z. R. 174 and American Cyanamid (C) v Ethicon Ltd (1975) A. C. 396 although the latter case’s applicability to defamation cases in a wholesale manner has been doubted: see note 4 to par. 167 of Halbury’s, vol. 28. Mr p97 Hakasenke sought to establish the plaintiff’s clear right to relief by citing para. 952 of vol. 8 of Halsbury’s Laws of England, 4th Edition, as to the effect of a pardon which is to clear the affected person from all infamy, and from all consequences of the offence for which it is granted, and from all statutory and other disqualifications following upon conviction. “it makes him, as it were, a new man, so as to enable him to maintain an action against any person afterwards defaming him in respect or the offence for which he was convicted”. The further authority cited was Leyman v Latimer (1878) 3 eXD 352. It should be noted, for the record, that the defendant did not dispute what the legal effect of a pardon is. But he submitted that, as matter of ordinary language, the reference complained of was factually correct. I have read the report on the Leyman case and the judgements rendered by Bramwell, L. J., Brett,L. J., and cotton,L. J. The effect of a pardon and that of a spent conviction were alluded to and the offending words in that case were references to the plaintiff as a “convicted felon” and “felon editor”. Their Lordships in that case were discussing the pleadings in a case which had not been fully tried on the merits and evidence. What emerges clearly from the judgements is that the court drew a distinction between the allegation that the plaintiff had at some previous time been convicted of felony which words were literally true, and the reference to “felon editor” which described the plaintiff as though still being a “felon”. Needless to say, the defence of jurisdiction was not supported on the latter allegation since quite clearly it is desirable that a time should come when a person who has been convicted of felony should cease to be called a felon and it is cruel, as Bramwell,L. J., put it, “to rake up what is past.” As I have already stated, I do not have to anticipate what the trial court will find. suffice it to say that there appears to be an arguable case either way and my decision will therefore not rest on the presence or absence of a clear right to relief but on the other principles which I have endeavoured to adumbrate in relation to defamation cases. In this application which is in the nature of a Quia timet application to prevent a future wrong by repetition which the plaintiff apprehends, it is vitally important for the plaintiff to show some evidence of the defendant’s intention to repeat the words that would legally be objectionable and actionable. This is particularly important if the court is to avoid making a global order which should simply be oppressive to the defendant who has shown to my satisfaction, by his affidavit, that he intends to plead some recognised defences. The case of Harakas and others v Baltic Merchantile and Shipping Exchange and another (1982) 2 A11 E. R. 701 which the defendant cited is very much in point. At the end of the day, having weighed the mischief sought to be restrained and the principles and authorities; and having considered the affidavits to the extent that they were not objectionable for being argumentative and non-factual; and also having taken all the submissions into account, I am not satisfied that this is an appropriate case in which I should exercise the discretionary jurisdiction of the court to restrain the defendant by interlocutory injunction pending trial. I have also not lost sight of the principle that adequacy of monetary compensation p98 is nearly always a ground for not granting such interlocutory relief. Of course, I do not propose to dwell on the arguments related to the plaintiff’s right to seek election to political office nor the defendant’s right to campaign freely for or against any person. Such arguments were, in my considered opinion, otiose and surplus to the requirements of this application since the issue was simply whether it was necessary and appropriate to grant an interlocutory injunction to prevent irreparable or serious mischief. For the reasons I have given, I refuse this application. Because the application raised important issues of general interest and because it also provided me with the opportunity to pronounce upon the question of ex parte applications of this nature which appeal to be routinely given even to dilatory plaintiffs and even in doubtful situations, I consider that the costs should be in the cause and I so order. ______________________________________