Court dismisses Post’s appeal in Rupiah defamation case

Court dismisses Post’s appeal in Rupiah defamation case
Written by Laura Hamusute
Saturday, October 17, 2009 12:41:37 AM

THE Supreme Court has dismissed an appeal by Post Newspapers Limited in a defamation case involving President Rupiah Banda. This is in a case where The Post appealed to the Supreme Court against the ruling of Lusaka High Court judge Charles Kajimanga dated October 3, 2008 in which he dismissed two preliminary issues by The Post.

The Post advanced three grounds of appeal, the first being that the judge erred when he held that it was proper for President Banda’s lawyer Christopher Mundia to depose to an affidavit whose contents were highly contentious.

On the second ground of appeal, The Post averred that the judge erred when he failed to vacate the order for leave to commence contempt proceedings in the light of sufficient grounds that the newspaper advanced.

The last ground of appeal was that the judge failed to address matters that were argued before court.

On September 26, 2008, President Banda through his lawyer Christopher Mundia filed a writ of summons and a statement of claim in the High Court seeking damages for alleged defamation by The Post.

Simultaneously, with the documents in question, President Banda applied for an ex parte order of interlocutory injunction to restrain The Post from publishing libelous words against him in their editorials and reports.

The ex parte order was granted on September 27, 2008 and judge Kajimanga set October 3, 2008 for the determination of the application for an interlocutory injunction inter parte.

On September 28 and 29, 2008, The Post allegedly published articles that President Banda thought were highly defamatory.

The defamatory materials according to President Banda also included an editorial/opinion, which he said was a total disregard of the ex parte order granted by the court earlier on.

President Banda then filed summons for leave to commence contempt proceedings pursuant to Order 52 rule 2 of the Supreme Court Rules.

On October 2, 2008, The Post filed a notice of intention to raise preliminary issues during the proceedings of contempt of court and the preliminary issues the newspaper sought to raise hinged on whether it was proper for President Banda’s lawyer Mundia to depose to an affidavit in a highly contentious matter.

The other issue The Post sought to raise was whether the ex-parte order for leave to commence contempt proceedings granted on September 30, 2008 should be vacated on grounds that an ex parte order was a provisional order liable to be vacated on sufficient grounds.

In delivering judgment, Supreme Court judge Sandson Silomba said he agreed with Mundia that the application for the leave in question was in compliance with procedure under Rule 2(1) (2) and (3) of the Supreme Court Rules and that Mundia had to provide information not as proof of the matters in controversy but for the purpose of making a prima facie case for the granting of leave to commence contempt proceedings.

Judge Silomba dismissed ground one and also dismissed ground two contending that the defence of justification and fair comment could not be used as a good ground for setting aside a validly obtained ex parte order.

Judge Silomba dismissed the last ground of appeal explaining that the court was not told what the judge omitted to do.