Interpretation of Ruling of Judge Chocho on PF faction groups
By Justine Nkonge
16th January 2024
This is how the matter started.
Nakachinda, on 25th October, took a main matter to court to challenge the validity and legality of Miles Sampa’s extra Ordinary General Conference, which took place the previous day, on 24th October 2023.
The main matter was filled together with an application for injunction to restrain Miles Sampa from carrying himself as a member of PF and as president of the PF.
Judge Chocho on 25th October 2023, granted the order to restrain Sampa from carrying himself as PF member and also as PF President.
The restraining order was granted ex-parte on 25th October 2023.
An injunction does not go to court as a stand alone, it goes with the main matter and the purpose of the injunction is to give temporary relief, as one waits for the determination of the main matter.
The judge also looks at the probability of the plaintiff winning the main matter. The idea is that if the plaintiff wins the case, he or she may suffer irreparable loss, which can not be compasated by the quantum of money, hence the temporal relief to restrain the other part to the case, from doing or not doing anything that would came and affect the plaintiff in an event the plaintiff wins the main matter.
Ex-parte means, the judge only heard Nakachinda on the application of an injunction and did not hear Miles Sampa.
On the 27th of October 2023, two days later, Judge Situmbeko Chocho discharged the injunction in favour of Sampa, meaning Sampa was not restrained from carrying himself as a member of PF and from carrying himself as President of PF.
The judge then allowed for inter-parte hearing of the injunction. Inter-parte means both Parties urgue for and against the application of the restraining order, injunction.
Last month the two parties met for inter-parte hearing and the judge reserved the ruling on those preliminary issues. It is today when Judge yesterday when judge Situmbeko passed the ruling which im trying to break for everyone to understand.
Please note that an injunction is also a preliminary issue in the main case and is decided upon through a court ruling like the one we have today and it is not decided through a Judgement.
A ruling is a decision on the preliminary issues, while a judgment is a decision on the main matter.
The one we have today was a ruling and not a judgment because it was merely answering preliminary issues raised by Miles Sampa through his defence team before trial in the main matter can commence.
In the preliminary issues, Mile Sampa was asking the court to throw out the main matter, contending that Nakachinda had no locus standi or right to sue him on behalf of the party because he was not legally appointed as PF SG, and that, the person who appointed Nakachinda in the name of Given Lubinda had also no locus standi to appoint him, because even him Given Lubinda, was not legally appointed as PF Vice or Actiing president and that there was already an injunction standing which restrained Lubinda from carrying himself as PF Vice president or Acting president
Sampa was again in another preliminary issue asking the court to discharge the other application of an injunction which was counter applied by Nakachinda, where Nakachinda, together with other plaintiffs who joined the case on the way asked Judge Chocho to reinstate the injunction which was discharged on 27th October 2023.
From this background, I can now shed light on the ruling for yesterday by Judge Situmbeko Chocho.
On the first preliminary issue, where Sampa was asking the court to drop Nakachinda from the case as the first plaintiff, on the basis of locus standi, was dismissed or denied. Sampa lost
Sampa’s prayer was not granted, and therefore, Nakachinda remains the first plaintiff to the main matter. This issue doesn’t mean that the court has ruled that Nakachinda is a PF SG, not at all.
In short, the court says Nakachinda whether as an individual member of PF or as a PF SG, has the locus standi to sue Sampa in his individual capacity.
The question before court was, could any other member of PF sue Sampa for being declared as PF President in the 24th October 2023 extraordinary General Conference. The answer is yes, every member of PF has a locus standi to sue Sampa as an individual because each member of a political party has vested interest in his or her political party, among other things to also ensure that, the leadership of the party is legit.
In the case of Democratic Party, where I personally was part of the first plaintiffs to sue Harry Kalaba from carrying himself as president of DP, the court in its preliminary issue ruling held that, by virtua of me, being a member of DP and an office bearer, I had the locus standi to sue Harry Kalaba from posing as a President of DP.
The legal team for bena Harry urgued that because I was not a Secretary General, I could not sue him. The judge refused this lone of urgument and ruled that I had the requisite locus standi by virtual of being a member of DP and also as an office bearer.
The case is almost on all fours with the DP case.
To this effect Nakachinda therefore, only needed to be a member of PF to qualify to sue Miles Sampa. He never needed to be a Secretary General of the PF party to have a locus standi to sue Sampa.
Probably, the legal team for Nakachinda decided to join the other 2nd, 3rd, and 4th plaintiffs on fears that Nakachinda may be removed as the first plaintiff, and it could render the case dismissed and loose will loose. A case will not fail to proceed if one of the plaintiffs is disjointed from the case. Even when Sampa succeeded on the first preliminary issues, the fact that there were other plaintiffs who joined the matter, the case could have still continued to be heard. I think the Nakachinda PF fuction group cured this issue by joining other plaintiffs as they did.
lin an event where it is the party which is a legal person capable of suing or be sued, then the court will require that the Secretary General of the Party should be the one to sue or to be sued on behalf of the party.
For example, if the party PF was deregisted and there is a need to apply for a judicial review to check whether the decision by the registrar of Societies was legal, followed the procedure and was Wednesbury reasonable. In that instance, the court will then require a Secretary General to apply for such a Judicial review on behalf of the party since the party is not a natural person but a legal person which can be sued or sue through its chief Executive officer who is the Secretary General of that party.
The second preliminary issue by the defendant, Mr Miles Sampa, was that the court should discharge the counter injunction by Nakachinda, which was asking the court to reinstate the earlier discharged injunction.
The court held in Sampa’s favour and ruled that the injunction can not be reinstated once discharged and, therefore, it remains discharged.
So, in today’s ruling, the first preliminary issues by Sampa was denied, while the second preliminary issue was sustained and allowed.
The scores of the ruling by Judge chocho was therefore that, Sampa’s PF scored 1 and Nakachinda’s PF also scored 1 and the match was a draw.
The diffence in the scores was that, Sampa’s score has allowed him to continue as PF president until when the main matter will be disposed off, while Nakachinda’s score means that, he has been maintained as first plaintiff and has not been confirmed as PF Secretary General.