EDITH Nawakwi says the Lusaka High Court has no authority to enter a default judgment whether interlocutory or final in a defamation suit.
This is in a matter where UPND leader Hakinde Hichilema has sued Nawakwi for defamation of character and is demanding US$3 million as damages for libel for alleging that he illegally benefited himself during the privatisation exercise when he fraudulently acquired a house belonging to Lima Bank.
Hichilema had asked the court to enter a default judgment in his favour following Nawakwi’s failure to respond to his claims.
According to an application for Interlocutory judgment in default of defense pursuant to Order 3 Rule 2 of the High Court Rules Chapter 27 of the Laws of Zambia, as read with Order 13 Rule 2 of the White Book 1999 edition, Hichilema asked the Court to order Nawakwi to retract the alleged defamatory words which she caused to be published on Hot FM, Kwithu FM and other media platforms.
The UPND leader wants aggravated and exemplary damages by Nawakwi to be assessed by the court.
Hichilema wants Nawakwi to reward him US$3,000,000, which he has spent in mitigating the effect of her conduct towards him, which emanate from the publication of her defamatory utterances.
He also wants an injunction restraining Nawakwi whether by herself, servants or agents or otherwise from further publishing or causing to be published or broadcast the defamatory words.
In an affidavit in opposition to composite summons to set aside defence or in the alternative strike out defence or part thereof and enter judgment on admission, Nawakwi said neither herself nor her advocates Messrs Chifumu Banda and Associates had been served with any document relating to the application by Hichilema to enter interlocutory judgment in default of appearance and defense.
She said the interlocutory judgment in default of appearance was filed prematurely as Hichilema had erroneously reckoned the 14 day period within which to file a requisite defense.
“I am desirous of demonstrating at trial that my statements were true and of fair comment and I deny that I made any admission of any allegations of defamation against the plaintiff,” Nawakwi said.
She stated that no prejudice would be occasioned to Hichilema for him to demonstrate that he was an astute businessman as he alleges and that he had a reputation worth defending.
“The real issue in controversy is the plaintiff’s demonstration of his acquisition of wealth prior to the privatisation process, including the property known as number 14/3/A/F488a Serval Road Kabulonga in Lusaka as an astute businessman as he avers,” Nawakwi said.
She stated that in his demand letter dated September 2, 2020, Hichilema made global assertions as to his credible reputation and therefore her averments were legitimate and necessary.
Nawakwi stated that part of her defense relates to material particulars involving transactions of properties associated with Lima Bank and Hichilema as the latter has always maintained that he never at any material time purchased properties associated with Lima Bank.
She disclosed that her lawyer Chifumu Banda advised her that the averments relating to Lima Bank are not scandalous and frivolous.
“In discharging my defence of ‘truth’ or “legitimate criticism” or “fair comment”, it is imperative to demonstrate that the property transactions associated with Hichilema were less than transparent and not in compliance with the law,” she claimed.
Nawakwi alleged that Hichilema and his sympathisers were on record publicly flaunting his wealth and accusing political opponents of being corrupt and challenging them to subject themselves to a “lifestyle audit”.
“The plaintiff will not be prejudiced by rendering an holistic account of the acquisition of his wealth which is his desire and pursuit for vindication in these proceedings. He will not be prejudiced in any way if the application is granted as this is a fit and proper case to be determined by the court,” Nawakwi said.
She charged that Hichilema’s application to set aside the defense was misconceived as he has not stated the law that gives the court such powers.
Nawakwi said Hichilema’s application was defective as it does not show his nationality, making the application strange and grossly misconceived.
“The court has no jurisdiction to enter a default judgment whether interlocutory or final in a defamation case,” Nawakwi stated.
She said Hichilema must embrace the defence of “truth” and that he has an opportunity to rebut the said evidence.
” The defendant herein timeously filed its defense on the merits and this application by the plaintiff is misconceived. This court has no jurisdiction to enter a default judgment whether interlocutory or final in a defense case. We submit that Hichilema’s application lacks merit and should be dismissed with costs,” said Nawakwi, the FDD leader.