Wood grants Zamtel fibre optic injunction
By Maluba Jere
Sun 20 Nov. 2011, 13:59 CAT
LUSAKA High Court judge Albert Wood has granted Zamtel an injunction restraining Zesco from preventing the communication company having the indefeasible right to use its optic fibre network as agreed in the agreement entered into by the two companies.
Judge Wood granted the order following an application by Zamtel for an order of an interim measure of protection for an injunction pending the resolution of the dispute through arbitration.
The application was made pursuant to Section 11 of the Arbitration Act number 19 of 2000 and Rule 9 of the Arbitration (Court Proceedings) Rules 2001.
According to the order, judge Wood said, "It is hereby ordered that an order of interim measure of protection by way of an injunction be and is hereby granted to restrain the respondents whether by itself and or its servants or agents and whomsoever person or persons from preventing and interfering with and or disrupting the applicant's rights to the indefeasible right to use the respondent's fibre optic network as agreed to in terms of the indefeasible right of use agreement dated 17th December 2009 between the applicant and the respondent pending the hearing and determination of the arbitral proceedings and the applicant undertakes to indemnify the respondent for any damages that the respondent may suffer as a result of this order of an interim measure of protection by way of an injunction should the court afterwards be of the view that the order should not have been granted."
In an affidavit in support of ex-parte originating summons deposed by Zamtel managing director Hans Paulsen, by virtue of that agreement, Zesco agreed to grant Zamtel an exclusive indefeasible right of use of its fibre optic network including any future extensions or fibre networks based on the terms and conditions of the agreement.
He stated that in reciprocity, Zamtel also granted Zesco a non-exclusive indefeasible right of use for capacity of its fibre optic network including any future extensions or future fibre network based on terms and conditions of the agreement.
Paulsen said the agreement gave both Zamtel and Zesco the right to interconnect on each others fibre optic networks.
He further said as a result of the agreement and with the full knowledge of Zesco, Zamtel invested US $1,400,000,00 of the budgeted US $3 million in infrastructure and related developments of the fibre network.
Paulsen said sometimes in October this year, the Minister of Land, Energy and Water Development was reported as stating that the agreement between Zamtel and Zesco would be terminated.
He said following the purported pronouncement, on October 13, 2011, Zesco wrote a letter to Zamtel terminating the agreement on the premise that there was no notification from the electricity supply company confirming that all the three conditions of the agreement were satisfied and henceforth, the agreement had not become effective and that the three months period from December 17, 2009 had since elapsed.
Paulsen said his company believed that by the pronouncements in the press, Zesco had already formed a premeditated scheme to wrongfully terminate the agreement with no tangible and justifiable basis.
"…that the respondent's actions appear to be tainted with illegality and with ill motive in that it is calculated to deliberately disrupt the business of the applicant," Paulsen said.
"If the applicant is prevented from accessing the fibre optic network belonging to the respondent, the applicant shall be in breach of various contractual undertakings that it has with suppliers, engineers and other contractors who have been engaged on the strength of the existing agreement."
He added that both parties had been implementing the agreement unfettered since December 17, 2009.
"For instance, in August 2010, the applicant wrote to the respondent that it was planning to implement the optic grand wire across the Zambezi River at Kazungula to facilitate interconnection of the respondent's optic fibre network with the Botswana Telecommunications Corporation," stated Paulsen.
"The respondent accordingly confirmed to the applicant that it would provide it with 15 kilometers of the OPGW that needed to be used on the 66KV line at Kazungula between the respondent and the Botswana Power Corporation."
The matter comes up for inter parte hearing on November 21, 2011.
Labels: ALBERT WOOD, OPTIC FIBRE, ZAMTEL, ZESCO
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Judge Wood stops Kafunda’s contempt
Written by Mwala Kalaluka
Saturday, September 26, 2009 6:15:33 PM
LUSAKA High Court judge Albert Wood yesterday quashed the contempt proceedings against Post editor-in-chief Fred M'membe, his deputy Sam Mujuda and US-based Zambian Professor of law Muna Ndulo. This is in a matter where M'membe, Mujuda and Prof Ndulo applied for judicial review on the contempt proceedings brought against them in the case where Post news editor Chansa Kabwela is charged with one count of circulating obscene matters contrary to the laws of Zambia.
In his ruling delivered in chambers yesterday, judge Wood said the alleged contempt before him was not committed in the face of the court but outside.
"According to the affidavit in support sworn by Sam Mujuda as Deputy Editor and Managing Director of the Post Newspapers Limited on 4th September, 2009, the Post Newspaper carried an article entitled "The Chansa Kabwela case - a Comedy of Errors," judge Wood said.
"On 28th August, 2009, the Public Prosecutor Mr Frank Mumbuna complained to the court presided over by the Learned Chief Resident Magistrate alleging that the article was contemptuous as it was calculated to undermine the authority of the court..."
Judge Wood noted that in the absence of any reaction on the part of The Post, the court made its ruling on August 31, 2009 and found the same to be contemptuous on the face of it.
"The Learned Chief Resident Magistrate then proceeded to cite the Editor in Chief of the Post Newspapers and the 3rd applicant for contempt of court," judge Wood said.
Judge Wood said he had perused the authorities cited in the skeleton arguments and agreed with the learned assistant senior state advocate that an applicant would not normally be permitted to proceed by way of judicial review if there was another avenue of appeal against the decision concerned.
"I however do not agree with her that there are no exception circumstances in this matter. There are exceptional circumstances because the liberty of an individual is a fundamental right and cannot and should not be taken away without due process," he said.
Judge Wood said he accepted counsel for the first and second applicant's argument as was held in The Attorney General versus Shamwana and Others.
"What I however do not accept even with the argument that judicial review proceedings are not civil proceedings and cannot be said to be interlocutory, that criminal proceedings can be stayed by way of judicial review. To do so would be contrary to what the Supreme Court held in The People v Principal Resident Magistrate and CS. Investments and Others v The Attorney General," he said.
"However, having perused the case record pursuant to section 337 of the Criminal Procedure Code Cap 88 of the Laws of Zambia, I am of the considered view that this is an appropriate matter for me to invoke the provisions of section 338 of the Criminal Procedure Code Cap 88 of the Laws of Zambia as read with section 54 of the Subordinate Court Act. I will also invoke the provisions of section 339 of the Criminal Procedure Code and dispense with heating either parties or their advocates with regard to the review."
Judge Wood said the information from the case was sufficient for him to reach a decision.
"Section 54 of the Subordinate Courts Act makes magistrates subject to directions of the High Court. It falls under miscellaneous provisions," he said.
Judge Wood observed that chief resident magistrate Charles Kafunda did not state what sort of summons should be used in citing the alleged contemnors.
"The record does not however show how Mr Kasonde effected the service of the Post Editor in Chief," he said. "I agree with Mr Mainza when he submitted at page 25 of the record that it was clear that the three were not appearing as witnesses as suggested by the summons. They were in fact summoned as accused persons."
Judge Wood said magistrate Kafunda, apart from being bound by the decisions that were cited, had no discretion under section 90 to proceed in the manner in which he did.
"The authorities cited do not encourage a formal charge, they make it mandatory. Further, the alleged contempt should have been tried by another court as the record shows that it was not committed in facie curiae. Contempt of court can either be in the face of the court or not in the face of the court," judge Wood said.
"If it is in the face of the court a summary procedure is adopted. If not, the State should formally institute proceedings and the court should proceed as provided for in the Criminal Procedure Code. There is no provision for proceeding in the manner stated by the subordinate court."
Judge Wood said from the authorities cited in the judgment, it was clear that procedure relating to contempt proceedings must be followed with scrupulous care.
"The facts from the record show that the alleged contempt, which is an article in a newspaper, was not committed in the face of the court. The record also shows that section 100 of the Criminal Procedure Code was not complied with regard to the second applicant," he said.
"It does not give the slightest indication of names or at the very least the name of the newspaper. It falls short of section 92 (2) of the Criminal Procedure Code. It does not state the offence which the persons against whom it is issued are charged."
Judge Wood said he was not concerned whether justice was a cloistered virtue or whether an argument or expostulation offered against any judicial act as contrary to law or public good amounts to contempt of court.
"That should be left to the subordinate court to try after all procedural requirements have been complied with," judge Wood said. "In light of what I have said above, the contempt proceedings before the Learned Chief Resident Magistrate cannot simply stand, I therefore quash all proceedings relating to the contempt proceedings in the court below. The parties will bear their respective costs."
Recently, judge Wood directed and ordered that proceedings relating to the alleged contempt of court case involving M'membe, Mujuda and Prof Ndulo be stayed until after the hearing of the motion for judicial review.
According to an order granting leave to apply for judicial review filed in the Lusaka High Court, judge Wood directed that further proceedings relating to the case be stayed. Judge Wood's decision came in the wake of magistrate Kafunda's move to issue a bench warrant against M'membe.
This follows a complaint by the prosecutors in the matter in which Post news editor Chansa Kabwela is facing one count of circulating obscene matters or things contrary to the law that an article authored by Professor Ndulo [The Chansa Kabwela case: a comedy of errors] and published in The Post edition of August 27, 2009 was contemptuous.
The Post editor-in-chief and the entire editorial staff were summoned to appear before court. The Post team, led by Mujuda appeared before court but magistrate Kafunda issued a bench warrant against M'membe, saying he was aware of the summons but did not appear before court.
However, M'membe is on study leave. The defence lawyers in the case argued among other issues, that the matter was improperly taken before court.
Labels: ALBERT WOOD, CHARLES KAFUNDA, COURTS, FRED M'MEMBE, SAM MUJUDA
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Judge Wood adjourns judicial review hearing for M’membe to September 23
Written by Maluba Jere
Tuesday, September 15, 2009 6:25:42 PM
Lusaka High Court judge Albert Wood yesterday adjourned to September 23 the matter in which Post editor-in-chief Fred M'membe, his deputy Sam Mujuda and Professor Muna Ndulo applied for judicial review after being cited for contempt by magistrate Charles Kafunda.
When the matter came up for inter-parte hearing, judge Wood adjourned it to enable him go through the case record in the subordinate court before hearing both parties.Lawyer representing M'membe and Mujuda, George Chisanga, said judge Wood requested for the file from the magistrate court to familiarise himself with the details in the matter.
Chisanga said the state had applied that leave for judicial review be set aside and contempt proceedings at the magistrate's court should not be stayed."So, in his view, judge Wood thought it is imperative that he studies the file before he can hear both parties," Chisanga said.
"So, the file will have to be retrieved from the subordinate court and the judge will study it."Judge Wood recently directed and ordered that proceedings relating to the alleged contempt of court case involving M'membe, Mujuda and Prof Ndulo be stayed until after the hearing of the motion for judicial review.According to an order granting leave to apply for judicial review filed in the Lusaka High Court at the principal registry, judge Wood directed that further proceedings relating to the case be stayed. Judge Wood's decision came in the wake of Lusaka chief resident magistrate Kafunda's move to issue a bench warrant for arrest against M'membe.
This follows a complaint by the prosecutors in the matter in which Post news editor Chansa Kabwela is facing one count of circulating obscene matters or things contrary to the law that an article authored by US based Professor of law Ndulo [The Chansa Kabwela case: a comedy of errors] and published in The Post newspaper edition of August 27, 2009 was contemptuous.The Post editor-in-chief and the entire editorial staff were summoned to appear before court.
The Post team, led by deputy managing director Mujuda appeared before court but magistrate Kafunda issued a bench warrant against M'membe, saying he was aware of the summons but did not appear before court.However, M'membe is on study leave.The defence lawyers in the case argued among other issues, that the matter was improperly taken before court.CK
Labels: ALBERT WOOD, COURTS, FRED M'MEMBE, MUNA NDULO, SAM MUJUDA
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