News Diggers and the Environmental Investigative Agency (EIA) have asked the Lusaka High Court to dismiss Justice Minister Given Lubinda, his Lands counterpart Jean Kapata and Tasila Lungu’s defamation claim in the “Mukula Cartel” case, on grounds that their Statement of Claim failed to outline the exact defamatory words contained in the articles complained about.
The Defendants told the court that although they intended to plead justification and fair comment on a matter of public interest, they were at a loss finding the specific words which the Plaintiffs found defamatory as the Statement of Claim did not explain.
Lawyer for the Plaintiffs Bonaventure Mutale State Counsel, however, complained that the application to dismiss the case ambushed his clients, as the lawyers for the Defendants did not communicate their intentions to make such an application so that they could prepare a response.
In this matter, Lubinda, Kapata and President Edgar Lungu’s daughter Tasila have sued News Diggers Media Limited, its editor Mukosha Funga and the EIA in the Lusaka High Court, demanding damages for libel.
The three sued Funga, News Diggers Media Limited and EIA as first, second and third Defendants respectively, in connection to a story on illegal Mukula trade which was published in News Diggers! and derived from an EIA report.
They are seeking an order of interim and permanent injunction, restraining Funga, News Diggers and EIA from publishing similar articles and opinions relating to them.
The three are also seeking damages against all the Defendants for libel contained in News Diggers’ edition of December 6, last year, titled “Lungu, Tasila in Mukula cartel” as well as damages against EIA for libel contained in its publication of December 2019, titled “Mukula cartel how timber trafficking networks plunder Zambian forests”.
When the matter came up for hearing of injunction application on Friday, lawyers representing the Defendants took issue with the format of the Statement of Claim.
Mutembo Nchito State Counsel who is representing the EIA, in the company of Chisuwo Hamwela, Nkandu Chibuye and Mable Chakoleka; and Musa Mwenye State Counsel who is lawyer for News Diggers and Funga, asked the court to strike out the case because the statement of claim was faulty and did not follow the rules of court.
Below is the verbatim of the court proceedings on Friday, February 28, 2020:
Nchito SC: “Before we delve into the application for injunction, we have had occasion to review court process served on our clients. For that reason, we would like to raise an issue of law. That point of law, My Lady, is that the writ of summons and statement of claim do not disclose a cause of action in the manner and form prescribed by our Supreme Court in the case of Muvi TV and Killian Phiri and another, appeal number 13 of 2015.”
(Nchito goes ahead to read the Supreme Court ruling.)
“On account of failure to plead the case as prescribed, we would apply that the statement of claim ought to be struck out with the writ that comes with it and the matter consequently stand dismissed. According to Order 14 (a) of the White book, we are required to raise such an issue at first opportunity, as we now do. My Lady, pleadings in a defamation matter require that the exact words that are allegedly defamatory need to be particularised out of the body of a writing or footage. It is not enough to say that ‘this article defames me’.
To illustrate the problem, I will draw My Lady’s attention to page 14 of the statement of claim and paragraph 18 where there is an article complained about titled: “My involvement in Mukula cartel fake news – Lungu'”
(Nchito goes ahead to read the article to the court).
“My Lady, this is in the Statement of claim, but it does not particularise what, in this article, is defamatory. It’s just a reproduction of activities and does not explain what the cause of action is. My Lady, the purpose of pleadings is to help the parties to put before the court specific issues for determination. And this point was ably addressed by the Supreme Court in the Muvi TV and Killian Phiri case I referred to earlier.
In this particular case, the infringement is so widespread in the statement of claim that there is no way it can stand. For that reason, My Lady, we chose to raise this issue at first opportunity. We therefore pray that the claim be struck out together with the writ, and the matter should stand dismissed. That is our prayer.”
At this point, Mwenye SC made an attempt to add to the application for dismissal of the matter, but lawyer for the plaintiffs Bonaventure Mutale SC stopped him.
Mutale SC: Objection! My Lady, we would like to object. State Counsel Mwenye cannot raise issue on this point because the application was made by counsel for third defendant. Defendant 1 and 2 are separate from defendant 3. Unless he is raising a new application.
(Judge allows Mwenye to submit)
Mwenye SC: But we are party to these proceedings, we cannot be excluded. In any case, My Lady, I just wanted to say, we agree with the arguments made by State Counsel (Nchito).
DEFENDANTS WAIVED THEIR RIGHTS TO OBJECT TO APPLICATION – MUTALE
Mutale SC: On the outset, we wish to express our surprise that Counsel for the third defendant has lodged this application without showing any courtesy to us. As State Counsel, our brother owes a duty to fellow State Counsel to notify him of his intention to raise such an application. These are the standards of State Counsel. We feel ambushed by our brother that he did not show courtesy as State Counsel to State Counsel…
Mutembo: Objection! My Lady, this is an attack on me and I don’t think it is fair for State Counsel to attack me. At least if he has a complaint against me, as a brother, he can approach me, but it can’t be on record, that’s the standard.
Judge: State Counsel (Mutale), let’s proceeds with the issue that has been raised by counsel for the defendant.
Mutale SC: I pray that this application be thrown out. Order 2 Rule 2 of the White Book specifies that an application of this nature can only be entertained if the applicant has not taken the first step. It further provides that an applicant will be deemed to have taken a first step if he files a response to the other party’s application. In this case, the record confirms that all the defendants have filed an affidavit in response to this interim injunction.
We therefore submit that the defendants should be deemed to have waived their rights to object to the application. and on that score alone, this application should be dismissed. It is our further observation of failure by the third defendant to make a formal application. Order 30 Rule 1 of the High Court Rules guides that an application of this nature cannot be brought informally and in this cavalier fashion, as it clearly negates the rules of natural justice. The plaintiffs have, no doubt, been ambushed by this application and needed time to study the application in order to respond effectively. Therefore, it is my submission that this application should not be allowed.
Lawyer K. Kaunda (for the plaintiffs): The court was referred to paragraph 18 which refers to an article with the headline: “My involvement in Mukula cartel fake news – Lungu”. State Counsel said the reproduction of this article does not disclose the cause of action. First of all, this is only one article out of 11 articles and opinions produced and complained of.
Secondly, the use if the word “Mukula Cartel”, that in itself is a cause for action because the articles and opinions referred to are clear as to the persons who are being referred to as “Mukula Cartel”. This is confirmed in paragraph 8 of the statement of claim which refers to an article published by the second defendant on the 6th of December 2019 under the title: Lungu, Tasila in Mukula cartel”. At page 3 of the claim, the first three lines state the names of these three people implicated. Clearly, this is cause for action contrary to submission by State Counsel.
And I agree with State Counsel Mutale, that the third defendant waived their right to raise any issue with the injunction application. In fact, all the defendants have filed affidavits, they have gone further to state that they will rely on the defence of justification and faire comment. That is evident, My Lady, that the defendants understood the cause of action in this matter and are ready to defend themselves. I submit that this application is misconstrued and should be dismissed.
THAT’S WHAT THE STATEMENT OF CLAIM SHOULD HAVE TOLD US – NCHITO
Nchito: My Lady, the first point that learned State Counsel raised was that the party raising this issue has waived its right by filing an affidavit to an injunction they applied for. I have no doubt in my mind, My Lady, that if no affidavit had been filed, the plaintiffs would have taken issue and they would have called us “cavalier” again for not filing an affidavit. Filing an affidavit, if there is an injunction, is the responsible thing to do.
Order 2 oblique 2 (4) discusses the extent of the waiver. It says that there will be no waiver if the step taken was reasonably necessary for other purposes. In this case, we are saying the step taken was in relation to the injunction which was adjourned to be heard today. It’s expected that the defendant should file something for that purpose. I did say at the outset, My Lady, that this is the first opportunity we have had to raise this issue.
The second issue that was raised by State Counsel for Plaintiff is that we should have come by way of formal application. My Lady, an oral application made before the court cannot be informal, otherwise you could not entertain us. For that reason, we had no choice in the circumstances of this case but to raise it now. And the question for determination is a clear one.
It cannot be argued that we have ambushed them. If they wished to have more time to study our application, they would have asked for an adjournment, which they did not, meaning they are confident.
Mr Kaunda took the court to the statement of claim and tried to point out which words were defamatory. My Lady, that is what the statement of claim should have told us if it was properly written, but it wasn’t. It was argued that the article cited was just one of the 11, therein lies an admission that this was just a reproduction…
Kaunda: Objection! My Lady. I did not admit to anything. State Counsel is alleging that I made an admission, that is not correct.
Nchito SC: There is an admission that this is a reproduction of the article, there is no particularization in terms of what part of those articles are defamatory, which is our problem. The question of the Affidavit is neither here nor there. We are now talking about the statement of claim not complying with with the rules, hence our application.
Judge: I reserve my ruling to next week.