CONTRASTING judgements have been rendered by the Constitutional Court to have Milingo Lungu condemned to costs in a matter where he petitioned the State over his re-arrest for possessing tainted property after having been granted immunity from prosecution.
Court president professor Margaret Munalula and four others are at odds with the decision of the majority that, the State should not be awarded costs on reasons that the case was settled out of court by the parties, an endeavor which the Court promotes.
The minority say there is no support in the view expressed in the majority ruling, that the petition raised Constitutional issues against the State among other things challenging the exercise of certain constitutional powers of the Director of Public Prosecutions (DPP).
Lungu who is former KCM provisional liquidator had withdrawn the case in attempts to resolve the issues with the State out of Court.
He had petitioned the State and it’s agents in the Constitutional Court over his re-arrest on allegations that he bought a house in Ibex Hill using stolen money from KCM former Director of Public Prosecutions Lillian Siyunyi had granted him immunity from prosecution after he rendered the mining firm’s account records and reliquinshed his position.
After having greed to have the case withdrawn from Court, the State requested that it should be awarded costs, an application which was opposed by Lungu’s lawyer Jonas Zimba on reasons that it would defeat the purpose of an excuria settlement.
The majority judges; Ann Sitali, Palau Mulonda , Mungeni Mulenga, Martin Musaluke, Matthew Chisunka and Mudford Mwandenga awarding the State Costs on previous applications is similar to the State asking the Court to review and reverse orders and costs that were made on each and every interlocutory applications that the parties and the DPP made as alleged contemnor.
“The decisiona of this court on costs in the previous applications are final. Once the court has fully exercised its jurisdiction,its authority over the matter ceasses,” the majority said.
“It is imperative that parties must be alive to the fact that once an order of the court has been made, it is by and large final and they should be able to arrange their affairs in keeping with that order.”
They said the interlocutory applications that were made by Lungu cannot successfully be used as the basis upon which he should be condemned in costs for discontinuing the matter.
“The guiding principles set out in Article 118(2)(d) of the Constitution are couched in mandatory terms and must therefore be followed to the hilt,”the majority said.
“Given the fact that the parties are seemingly intent on settling this matter excuria, the court is duty bound to promote such an endeavor by encouraging the parties to do so and should therefore be slow in condemning the petitioner in costs.”
The majority added that the case was not a proper case in which the court can condemn Lungu in costs.
However Prof. Munalula, her vice Arnold Shilimi, Judy Mulongoti, Mapani Kawimbe and Kenneth Mulife in their dissenting judgement said the reasons in the majority ruling, which appears to touch on the merits favouring Lungu’s case, are presumptuous and have no footing.
They said the parties, never presented their arguments on the merits, entailing that there was no substantive hearing ever held.
“In fact, the record of proceedings shows that there is no point, at which, the court ventured into the merits of this case by settling whether or not there was any constitutional issue raised in the petition,” the minority said.
“There is a proposition in the majority ruling that Article 118(2)(d) of the constitution on alternative forms of dispute resolution has a bearing on this matter. We wish to dispel this postulation because it sterms from a narrow perspective, and tilts in favour of Lungu’s rights as opposed to all the parties. In our view ,the article should be read wholesomely with article 118(1).”
The minority noted that Lungu put the State and its agents to great expense.
“It would be unjust, to expect the citizens of this country to bear the costs of these proceedings through the State, which is funded by taxpayers,” they said.
“The Astorney General’s prayer for costs is premised on the provision of Order X Rule 3 of the Constitutional Court Rules (CCR) on discontinuance of suits.”
They said previous applications and rulings on costs ought to be conducted independently.
“When an issue of costs arises at the point of discontinuance, the law states that it will be considered in the absence of any antecedents. This is why order X Rule 3 of the CCR specifically empowers the court to allow parties to discontinue their suits subject to the allocation of costs,”they said.
“We are not drawn to the position of the majority that the court would be attempting to review or reverse any orders on costs it has made in this case if it does-awarded costs at the point of discontinuance. We accordingly find this position flawed.”
The minority added that the case was fit for Lungu to pay costs to the States for the discontinuance of the matter.
By Mwaka Ndawa
Kalemba July 12, 2024.
The name Palan Mulonda keeps coming up. One has to ask the real motives of this and other Judges. Milingo admited to the crime and settled out of court. He sued the state accusing them, and the state incurred costs in litigation. The state is entitled.
Sometimes these Judges seem to enjoy litigation and wasting people’s time.
Stop showing your prejudices and be objective for once. Impariatiality is all the Public asks for. Milingo acted in bad faith. The number of subsequent litigations that he has garnered out of bad faith actions and self interest have cost the state alot. If he is not then why did he pay back money that was not his? This again an issue of public interest, why do we seem to have Judges who sway and lean into people that have done wrong?