Lusaka High Court judge Sharon Newa has dismissed MMD faction leader Felix Mutati’s application to summon Nevers Mumba’s lawyer, Jeah Madaika to testify in the matter concerning the opinion that he gave over the holding of the convention, on grounds that it was premature.
In this matter, the Mumba-led MMD acting National Secretary Winnie Zaloumis has sued Mutati, Mwansa Mbulakulima, Raphael Nakacinda and George Kangwa in the Lusaka High Court, challenging the legality of the convention that was held in Kabwe that elected Mutati and others into office.
Jonas Zimba is representing the Mutati-led MMD, while Jeah Madaika and Mulambo Haimbe are representing the other faction.
When the matter came up for continued cross examination of the first witness, Zaloumis, Thursday, Zimba asked the witness if she remembered the various petitions that were sent by their members prior to the holding of a convention.
In response, Zaloumis insisted that she did not receive any petitions.
And Zaloumis said although she was invited to attend the said convention, she did not go there because it was illegally called.
“There’s no way I can go to a convention which was called by non office bearers. The convention was illegal,” said Zaloumis.
Meanwhile, Zimba applied to the court to subpoena Madaika, the plaintiff’s lawyer, saying the opinion that was given by the said witness relating to the holding of the convention was on legal issues and could only be interpreted by him.
He said Section 27 of the High Court Act states in clear terms that such an application could be made at any stage of the proceedings.
“The point at which this application is being made is indeed at any stage these proceedings. This court has latitude to allow a party to properly present it’s case by calling all witnesses it deems necessary for it’s case. It is our prayer that Mr Jeah Madaika be subpoenaed in this matter so as to resolve all issues,” he said.
Zimba said Madaika’s evidence seemed to be the genesis of the dispute before court and could only be resolved if he was summoned and his evidence examined.
But in response, the plaintiff’s lawyer, Haimbe, opposed to the application saying it was mischievous and not tainable at law.
He added that, to require Madaika to interpret the opinion, the legal professional privilege line would be crossed.
“To ask Mr Madaika to explain his role at a NEC meeting referred to, will entail that he divulge privileged information. That is not tainable at Law. To go further to require Mr Madaika to interpret the opinion, will entail that the legal professional privilege line will be crossed,” he said.
Haimbe said the court already had the written document, adding that they would be in a position to give it such interpretation as the court deems fit without Madaika being brought on stand.
He urged the court to dismiss the application with costs.
Opposing the application, Madaika observed that the proceedings were at the stage where the plaintiff was presenting it’s case.
He agreed with Haimbe’s submissions that the application was mischievous and premature because the defendants were not yet calling their witnesses.
“Where in the procedure will this subpoena fit in? I agree with my colleague that this application is mischievous because at this point the defendants are not yet calling witness. Unless it’s what they intend to do in the future. The application is premature in that regard. From the way we see it, by the deliberate tendering of this application at a premature stage, the (defendant’s) only aim is to either derail the progress of these proceedings by causing unnecessary adjournments or to interfere with counsels representation of his clients,” he said.
Madaika asked the court not to entertain the application.
In her ruling, judge Newa dismissed the application on grounds that it was premature to subpoena Madaika as the plaintiff were still presenting their case.
“In this application, the defendants seek to subpoena the counsel to the plaintiff to testify in an opinion that he gave. The plaintiff is currently presenting their case. They should be allowed to call as witnesses, those people considered necessary to their case. When the plaintiff has concluded in presenting their case, the defendants will be given an opportunity to also present their case and call their witnesses. If at that stage, it is desirable that Mr Madaika be called as their witness, they shall have the liberty to subpoena him. Right now it’s premature to subpoena him as is the plaintiff’s case. And I therefore decline to grant the application on the basis that the plaintiff is presenting her case,” ruled judge Newa.