STATE WANTS TO BLOCK MILINGO FROM AMENDING HIS CASE
By Correspondent(The New Dawn Newspaper)
THE State has applied to the Constitutional Court to remove some amendments made by former Konkola Copper Mines (KCM) provisional liquidator Milingo Lungu to his petition in which he is challenging the removal of his immunity by the Director of Public Prosecutions, Gilbert Phiri.
In this case Milingo wants the ConCourt to cite DPP Phiri for contempt of court for revoking his immunity from prosecution.
Milingo argues that Phiri’s action was calculated to directly interfere with and frustrate the proceedings before the ConCourt on the immunity agreement he entered into with the State by rendering the matter nugatory and an academic exercise, thereby prejudicing the outcome of the proceedings.
He also argued that the DPP’s action was calculated to undermine the authority of the court by usurping the court’s power to consider and pronounce itself on the immunity agreement, and also calculated to obstruct or divert the course of justice.
In March this year, the court granted Milingo an application for leave to amend his petition, and on April 7, 2023, Milingo filed his amended petition.
In the amended petition, Milingo is seeking a declaratory order that the agreement between him and the DPP, granting him immunity or indemnity from prosecution, is binding on all state instructions as from the date of such grant.
He also wants an order of certiorari to quash the decision to purportedly revoke the immunity or indemnity agreement, on ground that such purported revocation is illegal and therefore null and void.
Milingo also wants an order of mandamus directed at the first respondent’s agent to release to him forthwith all documents, accounts and properties seized in the course of investigations, damages as against the first and second defendant for misfeasance in public office, interim relief by way of stay of criminal proceedings pending determination of this matter and costs.
However, the State has now argued that the leave granted to Milingo was to amend the petition as formulated in the proposed petition and not generally as he pleases.
“The petitioner (Milingo) argues that the amendments made to the petition are within the scope of the ruling of this court and have been properly made. To rebut this assertion, we have taken the liberty to reproduce the ruling of this court under paragraphs 45 and 46 to show that the permitted amendments were specific and not as suggested by the petitioner. Clearly therefore, while it is not in dispute that the court in its ruling did permit the petitioner to amend his petition, it is contended that the leave granted was to amend the petition as formulated in the proposed petition and not generally as the petitioner pleases,” the state submitted.
“In the premises, we implore the court to strike out the petitioner’s amendments introduced in form of the general title, paragraphs 3,28,34, the alleged constitutional breaches under paragraph 6 and the reliefs sought under (b)(c), (g) and (I) of the amended petition. The petitioner by his own arguments concedes that the amendments he made go beyond what the ruling permitted but insists citing a number of cases that amendments should be allowed to ensure all the issues in dispute between the parties are dealt with in one matter so as to prevent a multiplicity of actions”.
The State contended that Milingo was abusing the process of the court by ignoring the amendments he sought to effect and generally amending the petition.
“This issue is simply that once leave has been granted to amend, one cannot go beyond the scope of what has been permitted by the court. The court will grant leave to amend based on the party’s own application. The petitioner is bound by the application he made and how he formulated his proposed amendments. The petitioner has further argued that the application by the first respondent to strike out the amendments is improperly made, is frivolous, vexatious and an abuse of the process of the court,” the state submitted.
“We submit that it is in fact the petitioner who is abusing the process of the court by ignoring the amendments he sought to effect and generally amending the petition to include amendments beyond that which he had proposed to do as exhibited in his notice of motion. Clearly, a party on the grant of leave to amend is not at liberty to amend a document, in this case the petition, generally or as he so wishes. The amendments are guided by the ruling which would have been granted based on the proposed amendments. Any amendments beyond what was proposed in the application would amount to an abuse of the process of the court. We therefore implore this court to strike out the amendments made by the petitioner which are beyond what was permitted by the ruling of this court dated March 31, 2023.