HH, 5 others apply for judgment in default of defence against state in false imprisonment suit
By Mwaka Ndawa
UPND leader Hakainde Hichilema and five others have asked the Lusaka High Court to to enter judgement in default against the state for failing to enter defense and appearance in a matter where they have sued it demanding compensation for false imprisonment.
They prayed that their reliefs be granted as the state has not shown interest to defend the matter.
The six were falsely imprisoned on allegations that they committed treason when Hichilema’s convoy allegedly failed to give way to President Edgar Lungu’s motorcade on the Mongu-Limulunga road in April 2017.
According to a notice dated July, 2021, judge Yangailo indicated that she would strike out the matter from the active cause list within seven days if Hichilema and others do not take any step.
In their affidavit in support of summons for leave to enter judgement in default, the plaintiffs said on May 13, their lawyer Kamuwanga Phiri served the state a letter enclosing writ of summons, statement of claim, list of documents, list of witnesses and copies of the letter of demand.
They said despite being served with the said originating process, the state has neither entered appeareance nor filed its defense.
“Leave of this honourable court to enter judgement in default of appearance and defence ought to be obtained before filing the same. The intended judgement in default of appearance and defence is ready to be filed if this application is granted. Need has now arisen to make this application for leave to enter judgement in default of appearance and defence,” said Hichilema and others.
In this matter, Hichilema, Hamusonde Hamaleka, Pretorius Haloba, Wallace Chakawa, Laston Mulilanduba and Muleya Hachinda want the Lusaka High Court to compel the state to indemnify them damages equivalent in value to the money and personal belongings lost when they were apprehended at Hichilema’s home in new Kasama.
Hichilema is seeking remuneration for the money he lost and property that was looted, damaged and destroyed at his home four years ago during the unlawful operation to arrest him on April 10 and 11, 2017.
Hichilema and his aides further want a recompense for unlawful detention, unlawful prosecution, assault and battery, special damages for loss of income during the entire period of their incarceration, and damages for injury.
They also want damages for trespassing, loss of use of motor vehicle a Toyota hilux ALZ 2757 and ALZ 2710 for 34 days when they were in detention among other reliefs.
Hichilema, Hamaleka, Chakawa, Mulilabduba and Hachinda stated that they were jointly charged with treason, disobeying lawful orders and statutory duty while Haloba was not told the reason for his detention.
The complainants said charges of disobeying lawful and statutory orders were dropped by the state by way of nolle prosequi between May and June 2017.
“On August 14, 2017 the state maliciously laid an amended information before the High Court against the plaintiffs of treason contrary to section 43(1)(d) of the penal code,” the plaintiffs stated.
“On August 14 the plaintiffs took fresh plea on the charge of treason and all of them denied the charge. On August 16, 2017 the appointed date for commencement of trial, the state terminated proceedings against all the plaintiffs citing Article 180(7)of the Constitution and the plaintiffs were released.”
Hichilema and others contended that their prosecution and the unsanitary and inhuman conditions they were subjected to during their detention subjected them to humiliation and disgrace as well as brought them into ridicule and contempt both in Zambia and internationally.
“The plaintiffs will aver that they were wrongly imprisoned and deprived of their liberty, were maliciously prosecuted, greatly injured in their credit, character, reputation and they suffered considerable mental and body pain, anguish, considerable trouble, inconvenience, anxiety and expense that they have been greatly injured in their business and they have suffered loss and damage,” they said.
Hichilema, Hamaleka, Haloba, Chakawa, Mulilanduba and Hachinda said particulars of malice were that the treason charge lacked overt acts as it was not thoroughly investigated.
The complainants added that the admission by the state that the charge of treason was bad at law while insisting to prosecute them was malicious, an abuse of the criminal justice process and injurious on their dignity.