When a high court judge and counsel litigate against each other – the Zambian experience

22 February 2019 · Carmel Rickard

A full-on fight between judge and counsel is never good to see, and if it spills over into angry and frustrated litigation against each other, it is far worse. When just such a fight broke out earlier this year between a high court judge in Zambia and a prominent Lusaka lawyer, the local media was full of the scandalous story. Realizing the significance of the matter for the judiciary, its independence and public perceptions, the Chief Justice appointed a team of three high court judges to hear the latest round in the dispute. Jifa alum, Judge Edward Musona, was tasked with chairing the full bench, and the three judges have now given their decision. This is not yet the end of the matter, however, as the dispute is headed for appeal.

Read the judgment here

EVEN before the legal personalities became involved, this was a story making headlines. A scandal story about the rich and famous and how they make their money, the tale involved a dispute between the wealthy Italian immigrant Ventriglia family, and another immigrant, multi-millionaire businessman Rajan Mahtani, who has settled in Zambia from India. Their dispute concerned ownership of the vast Zambezi Portland Cement company. Claims of fraud, falsified share transfer certificates and other wrong-doing muddied the waters further, and feelings ran high.

After high court judge Sunday Nkonde made a crucial decision in the ongoing battle prominent lawyer John Sangwa, who acted for Mahtani, filed for an appeal against Judge Nkonde’s decision.

As part of the grounds of appeal, Sangwa highlighted and strongly criticized aspects of the judge’s handling of the matter.

Judge Nkonde was offended by these criticisms and started proceedings against Sangwa, ordering him to appear in court and answer to a charge of contempt.

Sangwa appears to have been equally offended, and he challenged the judge’s action by launching judicial review proceedings against the judge. He claimed that in bringing a contempt summons, the judge was breaching the provisions of the constitution as well as Sangwa’s own rights under the Bill of Rights.

Sangwa asked the court to find that the judge’s contempt summons was unlawful on several grounds. Though the judge did not file answering papers, he gave notice of certain preliminary questions, some technical, some substantive, relating to whether Sangwa’s application for judicial review was properly before the courts. One of these grounds, for example, was the critically important question of whether he, as a judge, enjoyed immunity against suits for legal action taken in the course of carrying out his judicial duties.

With the matter escalated in this way, it seemed set to become a major test of judicial authority. In response, Chief Justice Irene Mambilima appointed three high court judges to hear the preliminary issues, with Judge Edward Musone chairing the bench.

The court wrestled with a number of mainly technical issues raised on behalf of Judge Nkonde. Its first finding was that there was no bar to Judge Nkonde raising a preliminary challenge to the application for judicial review.

Was the matter properly before the court since it had not been personally signed by Sangwa? There was no requirement that a petition, such as this, brought under the constitution, should be signed by the applicant, the full bench decided.

And what about the central question? The critical issue tucked almost invisibly into the petition – a question that “seems to border on the subject of judicial immunity”, according to the three judges.

The question whether a petition could be brought against the judge as had been done in this matter, raised the issue of what ought to be the procedure where people felt that a high court judge had infringed on their rights under the Bill of Rights.

During argument of the matter, Judge Nkonde’s lawyers argued that such matters “had a chilling effect on the independence of the judiciary”. A judge “should not be dragged to court” and subjected to legal expenses. Sangwa’s challenge brought the independence of the judiciary into question, said counsel.

Counsel for Sangwa argued that judicial immunity did not extend to cases where a violation of fundamental rights by the judge concerned was alleged. The three judges did not agree with this submission. They quoted with approval a decision that it was less harmful to leave a party without a remedy against one judge (out of a thousand) who acted dishonestly, than to harass “999 honest judges” by way of vexatious litigation alleging malice in the exercise of their jurisdiction.

The full bench also referred to cases and documents based on the Bangalore Principles of Judicial Conduct and commented, “The practice that has evolved is that where an individual’s interest clashes with the principle of judicial independence there is a tendency for interests of the individual to be subsumed by the interest of the public at large in preserving judicial independence.”

The three judges said it was their “firm view” that Sangwa could not bring his action against Judge Nkonde “for anything done while performing his judicial functions within his jurisdiction”.

They said they agreed that judges were bound by the constitution and other laws. However, there was a “more appropriate forum” than a challenge in court. Anyone with a complaint about a judge who misbehaved or breached the law in the performance of his or her duties should go another route: “they can file a complaint to the Judicial Complaints Authority”.

Though the full bench then dealt with other preliminary issues raised, the finding that Sangwa was not entitled to bring an action against Judge Nkonde for anything done in the performance of his official judicial functions was effectively the end of the matter – at least in this court.

As Sangwa has given notice of an appeal, it will still be some time before the dispute – with the important issues it raises – is finally resolved.

Carmel Rickard

About the author

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