LUSAKA High Court judge Mwila Chitabo has refused to summarily terminate the matter in which NDC leader Chishimba Kambwili and two others have sued Principal Resident Magistrate David Simusamba for defamation of character.
Judge Chitabo declined to grant magistrate Simusamba’s invitation to terminate the proceedings summarily at preliminary issue stage, saying this is not a fit and proper case to do so.
He added that no prejudice would be suffered by magistrate Simusamba if the case proceeded and dealt with on its merits and demerits.
In this matter, Kambwili and his lawyers Cheelo Mwiinga and Christopher Mundia have sued magistrate Simusamba for defamation for alleging that they attempted to bribe him in order to deliver judgment in Kambwili’s favour in the forgery case which is before the Subordinate Court.
The trio is seeking, among other claims, a public retraction of the false and malicious allegations contained in a letter to the Chief Justice and an apology to them to their satisfaction in respect of all the defamatory utterances attributed to magistrate Simusamba.
However, magistrate Simusamba applied to have the matter dismissed on point of law, arguing that no action could lie against a judicial officer in his or her capacity for acts done or words spoken by an adjudicator in the honest exercise of judicial office.
He submitted that the action by Kambwili and his lawyers was misconceived at law as he enjoyed judicial immunity, adding that he was not the right party to be sued as he was a government employee and the Attorney General should therefore have been the one cited.
But in their joint affidavit in opposition to magistrate Simusamba’s affidavit in support of summons for an order to dismiss the action on a point of law, Kambwili and his lawyers argued that soliciting for bribes did not include functions of a judicial officer as magistrate Simusamba allegedly did, as it was a crime.
They added that magistrate Simusamba could not hide under the wing of immunity.
The plaintiffs further stated that magistrate Simusamba did not, in any way, enjoy judicial immunity for being allegedly corrupt because corruption was not one of the functions of a judicial officer.
In his reply, magistrate Simusamba insisted that he enjoyed judicial immunity from lawsuits.
“The subject matter of the suit herein arose in the course of criminal proceedings and the defendant being a presiding magistrate in the case enjoys judicial immunity from lawsuits arising from his exercise of judicial functions provided under Section 55 of the Subordinate Court Act Cap 28,” magistrate Simusamba stated.
“The first plaintiff (Kambwili) wrote a letter of complaint against me in my honest conduct of court proceedings as a presiding or sitting magistrate exercising judicial office in the criminal matter ‘The people v Chishimba Kambwili’ to the Hon Chief Justice and I enjoy judicial immunity.”
He stated that he was not an accused person in any criminal proceedings and that he had not been found guilty of committing any crime and further that a presumption of innocence applies to him.
“The Chief Justice is the overall superintendent of the Judiciary and exercises supervisory functions over me, among others, and my written response to her Ladyship’s letter to me following the first plaintiff (Kambwili’s) complaint was an administrative issue done with the strictest of privacy or confidence as stated in Kambwili’s letter to her ladyship dated December 17, 2019 and her ladyship’s letter to him dated January 22, 2020,” magistrate Simusamba stated.
“I wrote my letter to the Chief Justice in response to her memorandum to me concerning Kambwili’s complaint in my exercise of judicial functions as a sitting magistrate, equally in confidence and the letters were not in public domain.”
He further stated that the subject matter was not capable of being adjudicated upon by the court as it was outside the jurisdiction of the court.
“The defendant enjoys judicial immunity from lawsuits arising from his exercise of judicial functions. The defendant is still presiding over the criminal proceedings in the Subordinate Court in which Kambwili is an accused person. The court has power to set aside a writ and or dismiss a matter where the subject matter is outside the jurisdiction of the court,” magistrate Simusamba added.
But in his ruling dated September 29, 2020, judge Chitabo said he did not think this was a fit and proper case to terminate Kambwili’s action without giving him an opportunity to be heard.
He added that conversely, magistrate Simusamba, as the defendant, ought to be given an opportunity to counter the alleged libelous publication by the defendant.
“It has been conceded that complaints lodged with the Honorable Chief Justice and the Anti-Corruption Commission per se are not proceedings before Courts. At this stage, the sole fact that the plaintiffs had launched complaints before other fora other than in this cause cannot be a ground to dismiss this claim for multiplicity and or duplicity. The plaintiffs’ action shall stand on its merits or fall on its demerits,” judge Chitabo said.
On magistrate Simusamba’s argument that he was not the right party to be sued as he was a government employee, judge Chitabo said the Attorney General was the rightful party to sue in respect of acts or omissions done by Government officers in the execution of their duties.
He, however, added that it was also trite law that a master could only be vicariously liable for acts or omissions done by its servant in the lawful execution of his duties.
Judge Chitabo said it was for this reason that the Court at this stage cannot enjoin the Attorney General at its instance, there being no application on the part of the Attorney General to be joined to the proceedings in this legal contest.
He declined to grant the invitation to terminate the proceedings summarily at the preliminary issue stage and appointed October 8, 2020 as date for scheduling conference.
“I have already observed in one of the preceding paragraphs that this is not a fit and proper case to summarily terminate the plaintiffs action. I agree, no prejudice will be suffered by the defendant if proceedings proceeded and the matter is dealt with on its merit and demerits,” judge Chitabo said.
“On the foregoing, I decline to grant the invitation to terminate the proceedings summarily at the preliminary issue stage. Issues of tremendous public interest and administration of justice have been raised. The justice of the case is that I make no orders as to costs.”
Judge Chitabo, however, granted leave to appeal to the superior Court.