Lubinda V Daily Nation

IN THE HIGH COURT FOR ZAMBIA 2014/HP/1006
AT THE PRINCIPAL REGISTRY

HOLDEN AT LUSAKA
(CIVIL JURISDICTION)
06
/ 'C / PRIM CIP
BETWEEN:
i s AC • .
GIVEN LUBINDA PLAINTIFF

R E G IS T F
AND
EMOND LIFWEKELO 1ST d e fe n d a n t

DAILY NATION NEWSPAPER LIMITED 2ND DEFENDANT
Before The Honourable Mr. Justice I. C. T. Chali, in Chambers at

Lusaka, the 19th day of August 2014.
For the Plaintiff: Mr. K. Kaunda, Messrs. Ellis & Company
For the 1st Defendant: No appearance
For the 2nd Defendant: Mr. M. Muchende, Messrs. Dindi & Company
RULING
Cases referred to:
1. Fraser v. Evans (1969) 1 QB 349.

2. Michael Chilufya Sata v. Chanda Chimba III & Others, (2011) 1 ZR
519.
3. Shell & BP Zambia Ltd v. Conidaris & Others (1975) ZR 174.
Legislation referred to:
Constitution of Zambia, Chapter 1 of the Laws of Zambia.

R2
The Plaintiffs action was for, inter alia, damages for alleged libel
contained in an article titled “UPND WRITES OFF LUBINDA” attributed
to the 1st Defendant which appeared at page 4 of the SUNDAY NATION
Edition of 18th March 2014, Vol.3 issue 747, a publication of the 2nd
Defendant.
Pending the hearing and determination of the action, the Plaintiff applied
for an order of interim injunction restraining the Defendants from
uttering and publishing similar and other defamatory statements of the
Plaintiff. The application was supported by an affidavit sworn by the
Plaintiff to which was exhibited an extract of the offending publication.
The article in issue reads:
“UPND writes off Lubinda
UPND has written off Kabwata Patriotic Front (PF) Member of

Parliament Given Lubinda as a factor in the current political
dispensation because he has allegedly exhibited high levels of
political paranoia following his survival from being expelled from the
ruling party.
UPND Kabwata constituency Publicity and Information Secretary

Edmond Lifwekelo said it was not surprising that Mr. Lubinda, the
former Foreign Affairs Minister had resorted to parroting the views
of the people who loathed him, because he was looking for political
and economic survival from the party.
R3
Mr. Lifwekelo said while it was difficult to comment on Mr.

Lubinda’s assertions that there was no strong opposition in Zambia,
it would be incorrect for the opposition to fail to correct the
misconception that the PF was as popular as it was in 2011.
Mr. Lifwekelo said Mr Lubinda had been blinded by his desire to get
back a government job and that the Kabwata Parliamentarian had
become political myopic and disoriented following a surge of anti-
Lubinda campaigns that were meant to hound him out of the ruling
party.
He said Mr. Lubinda was looking for empathy from the cartel that
started the campaign to expel him out of the party and advised that
it was politically wrong for the Kabwata MP to write off the
opposition because more than 90 percent of Zambians were angry
with the PF and its form of governance.
Mr. Lifwekelo explained that it was clear Mr. Lubinda had lost touch
with the current political realities and hoped that soon the Kabwata
legislature would be shocked when Zambians would show the PF the
exit door from government.
“We do not know how much Lubinda knows about the opposition
and it would appear that he has become disoriented and myopic
following the surge of demonstrations meant to hound him out of
the ruling party.”
R4
“Mr. Lubinda could only be trying to blind his masters that the PF is
still popular but we know that deep down his political heart, he has
seen that the tides have changed and that the PF stands no chance
under President Michael Sata or any other candidate in 2016. Let
him understand that the popularity the PF enjoyed in 2011, has
since evaporated and Zambians are so angry that they want change
now,” Mr. Lifwekelo said.
He said Mr. Lubinda had on several occasions pleaded with the UPND
members to support him because his time in the PF had expired.
Mr. Lifwekelo has challenged the Kabwata MP to deny that he had

been courting the UPND because he was sure the PF would never win
an election in its current state.
He said Mr. Lubinda had in the not so distant past been claiming
that he was no longer a PF member and that he was more
comfortable with the UPND than any other opposition political
party.”
In his supporting affidavit, the Plaintiff deposed, among other things, as

follows:
“5. That the story in the article is false, malicious and

intended to injure my reputation.
R5
6. That I believe this is the reason the said article does not
state the names of the reporter.
7. That I verily believe that the Defendants will continue to

utter and publish stories related to the article, and other
defamatory statements about me.
8. That the damage or injury to my reputation by the

continued publication of such articles cannot be
adequately atoned for in damages.”
The 1st Defendant had not appeared to the Writ of Summons or filed any
opposing affidavit. However, the 2nd Defendant had caused an
appearance to be filed together with a defence. In the said defence, the
2nd Defendant pleaded partly as follows:
“ 1. The said words were an accurate report published in the

said Newspaper of the statement issued by the 1st
Defendant.
2. The said report was a fair comment upon a matter of

Public interest and free Political debate arising from a
statement attributed to be Plaintiff to the effect that
“there was no strong Opposition in Zambia.”
R6
3. The said report was without malice and in so far as is

necessary the 2nd Defendant will rely on section 9 of the
Defamation Act Cap. 68 of the Laws of Zambia as read
with Part II of the Schedule therein;
Particulars
(a) The 1st Defendant who issued the statement is and was
the Publicity and Information Secretary for a lawfully
recognised Opposition Political Party in Zambia by the
name of United Party for National Development (UPND).
(b)The Plaintiff is a Politician, Public figure and Member

of Parliament for Kabwata Constituency under the
Patriotic Front (PF).
(c) Prior to the report complained about, the Plaintiff did

issue a statement to the effect that there was no
strong Opposition in Zambia.
(d)The Opposition UPND through the 1st Defendant issued

a statement responding to the allegation of the
Plaintiff aforesaid.
(e)The statement of the 1st Defendant insofar as the 2nd

Defendant is concerned was an honest expression of a
genuine opinion in furtherance of free political debate
R7
(f) and hence its inclusion of vehement, caustic and

unpleasantly sharp attacks on the Plaintiff who is a
Public official and vocal Politician.
(g) The Plaintiff volunteered to the public or political life

and he knew or ought to have known that he would be
a subject of political attack especially when he attacks
his Opponents.
(h)The charges made against the Plaintiff were not out of

thin- air but are true in the sense that attempts were
made to hound the Plaintiff out of the PF and yet he
has continued to issue statements which appear to be
calculated to appease the PF.
In deciding whether or not to grant an injunction, I have borne in mind

every person’s right to freedom of expression as particularly enshrined in
Article 20(1) of the Constitution of Zambia, Chapter 1 of the Laws of
Zambia, that is to say:
“...freedom to hold opinions without interference,

freedom to receive ideas and information without
interference, freedom to impart and communicate ideas
and information without interference, whether the
communication be to the public generally or to any
person or class of persons...”
R8
The said fundamental freedom can only be abridged by laws that are
“reasonably required for the purpose of protecting the reputations,
rights and freedoms of other persons....”
In my view, that freedom, which is also enjoyed by corporate bodies such

as the 2nd Defendant, ought not to be taken away lightly especially by an
interlocutory or interim order of injunction.
In its decision in the case of FRASER v. EVANS (1969) 1 Q.B. 349, the
English Court of Appeal gave the guidelines as to why the legal right
ought not to be rushly interfered with. In the words of Lord Denning at
pages 360 and 361 of the report:
“The Court will not restrain the publication of an article

even though it is defamatory when the defendant says he
intends to justify it or to make fair comment on a matter
of public interest. That has been established for many
years ever since (the case of) BONNARD v. PERRYMAN.
The reason sometimes given is that the defences of
justification and fair comments are for the jury which is
the constitutional tribunal and not for a Judge. But a
better reason is the importance in the public interest that
the truth should be out. As the Court said in the
(BONNARD case): “the right of free speech is one which it
R9
is for the Public interest that individuals should

possess, and indeed, that they should exercise without
impediment so long as no wrong act is done.” There is no
wrong done if it is true, or if it is a fair comment on a
matter of public interest. The Court will not prejudice
the issue by granting an injunction in advance of the
publication.”
In the case of Zambia where there are no trials before a jury, it is the
Judge who must decide the question of libel or no libel, but generally
only after the trial of the action.
As Dr. Matibini, SC, J said in his decision in the case of MICHAEL

CHILUFYA SATA v. CHANDA CHIMBA III & THREE OTHERS (2011) 1 ZR
519 at page 555:
“The Court will only grant an interim injunction

(restraining publication) where:
1. The statement is unarguably defamatory;

2. There are no grounds for concluding the statement
may be true;
3. There is evidence of an intention to repeat or publish
the defamatory statement; and
4. There is no other defence which might succeed.”
RIO
In the instant case, the 2nd Defendant did not ju st make a general, or
what used to be called a “rolled up plea”, of justification or fair comment
on a matter of public interest, but it gave particulars of the facts upon
which the comment alleged to be fair was based. In other words, the
Plaintiff was not only given notice of the case he was going to meet at the
trial, but he was also given the particulars of the facts which would be
relied on by the 2nd Defendant in support of the plea.
Now for the Plaintiff to ask me to take away the 2nd Defendant’s right to
freedom of expression in respect to the Plaintiff under these
circumstances would be to judge that defence peremptorily.
The second aspect I addressed my mind to were the principles upon

which injunctions are generally granted. It is also related to the principle
I have just dealt with. The principles are laid out in several Zambian
cases, including, but not limited to that of SHELL & BP ZAMBIA
LIMITED v. CONIDARIS & OTHERS (1975) ZR 174 which was cited even
by Counsel for the Plaintiff. In that case, the Supreme Court held:
“A Court will not generally grant an interlocutory

injunction unless the Plaintiffs right to relief is clear and
unless the injunction is necessary to protect the Plaintiff
from irreparable injury; mere inconvenience is not
enough. Irreparable injury means injury which is
R ll
substantial and can never be adequately remedied or

atoned for by damages, not injury which cannot possibly
be repaired.”
Firstly, in the light of the defence raised by the 2nd Defendant, the
Plaintiffs right to relief was not clear. It may only be clear after the trial,
if he succeeds in demolishing the defence pleaded.
Secondly, and as Counsel for the 2nd Defendant pointed out in his
submissions, the Plaintiff claimed damages, including punitive damages,
for the alleged libel. It is trite that the object of an injunction is to
protect the Plaintiff against injury by violation of his rights for which he
may not be adequately compensated in damages recoverable in the
action if the uncertainty were resolved in his favour at the trial.
In my opinion, the Plaintiff could be compensated in damages if he

succeeded in the action at the trial. The Plaintiff had not shown that the
2nd Defendant is a “man of straw” as not to be able to pay such damages
as may be awarded against it.
Lastly, the Plaintiff did not show by evidence that the Defendants
intended to repeat or publish the same or similar alleged defamatory
statements or comments of him. The fear, in my view, appeared
speculative and remote. I came to the conclusion that there was no
immediate possibility of injury to the Plaintiff for which he required the
protection of the Court by an order of injunction.
R12
For the reasons given, the Plaintiffs application for an interim injunction
is refused and is accordingly dismissed.
I order the costs of the application to be costs in the cause.
Delivered in Chambers, the 19th day of August, 2014.
JUDGE

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IN THE HIGH COURT FOR ZAMBIA 2014/HP/1006

AT THE PRINCIPAL REGISTRY

GIVEN LUBINDA PLAINTIFF

EMOND LIFWEKELO 1ST d e fe n d a n t

Before The Honourable Mr. Justice I. C. T. Chali, in Chambers at

For the Plaintiff: Mr. K. Kaunda, Messrs. Ellis & Company

For the 1st Defendant: No appearance

Cases referred to:

1. Fraser v. Evans (1969) 1 QB 349.

Legislation referred to:

Constitution of Zambia, Chapter 1 of the Laws of Zambia.

“UPND writes off Lubinda

UPND has written off Kabwata Patriotic Front (PF) Member of

UPND Kabwata constituency Publicity and Information Secretary

Mr. Lifwekelo said while it was difficult to comment on Mr.

Mr. Lifwekelo has challenged the Kabwata MP to deny that he had

In his supporting affidavit, the Plaintiff deposed, among other things, as

“5. That the story in the article is false, malicious and

7. That I verily believe that the Defendants will continue to

8. That the damage or injury to my reputation by the

“ 1. The said words were an accurate report published in the

2. The said report was a fair comment upon a matter of

3. The said report was without malice and in so far as is

(b)The Plaintiff is a Politician, Public figure and Member

(c) Prior to the report complained about, the Plaintiff did

(d)The Opposition UPND through the 1st Defendant issued

(e)The statement of the 1st Defendant insofar as the 2nd

(f) and hence its inclusion of vehement, caustic and

(g) The Plaintiff volunteered to the public or political life

(h)The charges made against the Plaintiff were not out of

In deciding whether or not to grant an injunction, I have borne in mind

“...freedom to hold opinions without interference,

In my view, that freedom, which is also enjoyed by corporate bodies such

“The Court will not restrain the publication of an article

is for the Public interest that individuals should

As Dr. Matibini, SC, J said in his decision in the case of MICHAEL

“The Court will only grant an interim injunction

1. The statement is unarguably defamatory;

The second aspect I addressed my mind to were the principles upon

“A Court will not generally grant an interlocutory

substantial and can never be adequately remedied or

In my opinion, the Plaintiff could be compensated in damages if he

I order the costs of the application to be costs in the cause.

Delivered in Chambers, the 19th day of August, 2014.

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