BREAKING NEWS: DAMIANO FAILS TO SUBMIT APPEAL TO CONCOURT ON TIME AND FAZ APPLIES FOR CASE TO BE DISMISSED WHEN DAMIANO AND FAZ APPEAR TOMORROW THURSDAY 4TH JUNE 2020
The Constitutional Court of Zambia will tomorrow Thursday 4th June 2020 at Lusaka hear the case of Damiano Mutale and Patson Lusaka vs Adrian Kashala and FAZ (thereinafter refers to as Damiano vs FAZ) on whether The High Court of Zambia has the jurisdiction to handle Damiano’s prayers before its bench.
I can exclusively reveal that The Plaintiffs failed to file their Record of Appeal and Heads of argument on time in the Constitutional Court. Therefore FAZ has applied to have Damiano’s appeal dismissed for want of prosecution. This means that this will be the motion that is coming up for hearing tomorrow in the ConCourt.
Before the latest application, FAZ was basically saying the High Court shouldn’t even entertain Damiano’s case because, since he claims that he is a registered of FAZ, he is bound by the FAZ Statutes and FIFA Statutes which do not recognise local courts but prescribe a process by which one appeals through the FAZ Judicial bodies and if he exhausts them but is not happy he has to go for arbitration with FAZ outside the FAZ system.
FAZ was not even arguing issues of loci standi. Earlier, FAZ submitted that the First Plaintiff Damiano Mutale, who is suing in his capacity as Secretary General of Damiano Academy, is currently banned by FAZ and therefore is not a registered official or a member of a member (club or institution) of FAZ. FAZ also submitted that, contrary to the claims that Patson Lusaka is the secretary of Brave Rovers of Kitwe, which plays in the Copperbelt amateur league of FAZ, the club is not registered or recognised by FAZ for the 2019/2020. In fact, according to FAZ, investigations showed that the club is defunct. Sources within FAZ at the time (in March 2020) posited that the two falsified the details to obtain the ExParte Order in a grand scheme of deception and lies that were aimed at bringing chaos to the good game of football for political gains. At law, FAZ was basically saying that Damiano and Lusaka cannot bring a matter in the courts because they have no Locus Standi. So FAZ contended that by bringing this action, Damiano, who is banned and Patson who is representing an unregistered club have no loci standi making this action a nullity at law: null and void or void ab initio.
Damiano Mutale vs FAZ
A new twist pic.twitter.com/a9MLewqepy
— #Mr-Zambian-Football (@Mubajnr) June 3, 2020
Despite these arguments earlier, for now FAZ was going to only look at jurisdiction. FAZ simply wanted The High Court to wash its hands and say take this case to arbitration according to your constitution, provided Damiano keeps claiming he is registered with FAZ. But if he changes his stance and says that he is not a registered official to be forced to arbitration, as claimed by FAZ earlier, then the issue of loci standi comes in and this means this case may be thrown out on that basis.
Let me give you the long background of the case; if you already have details of the case, you can stop here or jump to the conclusion.
This appearance emanates from the court action where Damiano Mutale is the 1st plaintiff and Patson Lusaka the 2nd plaintiff while FAZ Secretary General Adrian Kashala is the 1st respondent (defendant) and the FAZ is the 2nd respondent. In this matter and on the 11th of March 2020, the Plaintiffs commenced the matter in the High Court at Ndola by Writ of Summons and Statement of Claim seeking a plethora of reliefs including the following: (i.) An order to stop the ongoing FAZ electoral process which begun on 7 day of March 2020 leading up to the Annual General Meeting of the 28th March 2020 until the claims herein are fully determined and or until further order of Court; (ii.) An order to stop the holding of the Annual General Meeting scheduled for 28th March 2020 at which elections are planned to be held or until a further order of Court; and (iii.) Any other relief the court may deem fit. The same day, the Plaintiffs made an ex-parte application for an order of stay of the ongoing FAZ Electoral process and the FAZ elections which begun on 7th March 2020 and scheduled to end on 28 March 2020 at the FAZ AGM. Again the same day, the application was heard ex-parte and the ExParte Order of injunction was granted by the Court.
On 16th March, FAZ filed a conditional memorandum of appearance on condition that FAZ would file an application for an order of stay of proceedings and an order that the matter be referred to arbitration. Further, the Football Association of Zambia made an application to set aside the ExParte Order made by the Ndola High Court staying the FAZ Annual General meeting (AGM) and the FAZ electoral Process (including the Presidential Elections).
When the matter came up for InterParte Hearing on 19th March, 2020, Mr. Pasi, Counsel for the Defendants, raised a preliminary issue on a point of law, viva voce. The question raised was, in essence, whether or not the Ndola High Court had jurisdiction to proceed with the hearing and determination of the matter, given that the Defendant’s (FAZ) Constitution had an Arbitration Clause. This preliminary issue was more of a motion ‘in limine’ i.e. a motion that is tabled by one of the parties at the very beginning of the legal procedures and seeks to pull the rug out from under the feet of the other party.
The following day on 20th March, 2020, the Defendants filed submissions stating that Article 63 of the Constitution of the Football Association of Zambia had an Arbitration Clause which provides that disputes affecting leagues, members of leagues, clubs, players and officials should not be submitted to ordinary courts, but referred to arbitration. The Court was further referred to the provisions of Section 10 of the Arbitration Act No. 19 of 2000. The Defendants also asked the court to dismiss the action for lack of jurisdiction, with costs.
On 24th March, 2020, the Plaintiffs filed their submissions in which they objected to the application. In support of their objection, they raised issues. In the first issue, the Plaintiffs submitted that in determining whether a matter was subject to arbitration or not under Section 10 of the Arbitration Act, it was important for the Court to study, closely, the wording used in the arbitration clause. Further, they also submitted that the question the Court ought to have resolved was whether or not there were legal provisions in Zambia which would bind FAZ and which would require that FAZ disputes must be taken to Zambian Courts. That, if there were no binding legal provisions in Zambia, then, the matter ought to have been referred to arbitration, but that if such binding legal provisions existed in Zambia, then the matter could not be referred to Arbitration.
The plaintiffs also contended that the question on whether or not these proceedings ought to be referred to arbitration or be heard by the High Court raised a constitutional issue, as it called for the interpretation of, inter alia, Articles 1, 119 and 266 of the Constitution of Zambia. Relying on Articles 1 (5) and 128 (1) of the Constitution of Zambia, the Plaintiffs submitted that based on the application before the High Court, having raised a constitutional matter, the Court which could only hear and determine this matter, was the Constitutional Court of Zambia, and not the High Court.
On 31st March Judge Mary Mulanda ruled that “… Since there is no application before me to trigger the ouster of the Court’s jurisdiction under Section 10 of the Arbitration Act, this Court has jurisdiction to preside over this matter until when an application will be made by either of the parties to these proceedings, if they so wish. Consequently, the Defendants’ application to determine this matter under Order 14A of the Rules of the Supreme Court of England (White Book) on a point of law, challenging the jurisdiction of the Court, is accordingly refused. Costs for this application were for the plaintiffs. The judge also granted leave to appeal to the Court of Appeal.
On the 1st of April, 2020, FAZ filed an application for an Order that the legal proceedings in this matter be stayed and the matter be referred to arbitration on the ground that all the disputes in this matter were subject to an arbitration agreement under Section 10 of the Arbitration Act, No. 19 of 2000 and pursuant to Rule 4 of the Arbitration (Court Proceedings) Rules, 2001. This followed the decision of the court the previous day which stated in part that “.. the jurisdiction of a court, under Section 10, is not automatically ousted simply because a matter brought before it, is a subject of an arbitration clause. The jurisdiction will only be ousted if a party requests that the matter be stayed and referred to arbitration.” Hence this application.
If the court was to determine the application, it was mostly likely going to be forced to refer it to arbitration if the wording of the judgement was anything to go by. Therefore, on the 6th of April, 2020, lawyers for Damiano and Lusaka applied for leave to appeal to the Constitutional Court, against the High Court’s Ruling dated 31st March, 2020. The contended that the judge erred in fact and law to make a judgement on 31st March 2020 instead of first referring the matter to the constitutional court. The Judge granted Damiano such leave on the same day. The grounds of appeal further included a suggestion that the Football Association of Zambia (FAZ) Arbitration Clause and the challenge of the jurisdiction of the High Court in light of the FAZ Arbitration Clause both raised constitutional issues that could only be determined by the Constitutional Court before the judge could decide (as she did on 31st March 2020) that she had jurisdiction to preside over the matter.
Further, on the 9th of April 2020, Damiano raised an objection on a point of law saying the Application by FAZ to stay legal proceedings and to refer the matter to arbitration couldn’t be heard and determined before the hearing and determination of the Damiano’s Appeal currently before the Constitutional Court on the issue of the Arbitration Clause as well as jurisdiction of this Court.
Consequently, on 20th April 2020, Judge Mary Mulanda stayed the FAZ application of 1st April and all court proceedings on this matter pending a decision in relation to Damiano’s application for the ConCourt to determinate the jurisdiction of the High Court in handling the Damiano vs FAZ case instead of referring it to arbitration as provided for under the FAZ Statutes and as prayed for by FAZ in the Ndola High Court.
MY ANALYSIS, LOOKING BACK AND MY CONCLUSION
So it looks like the Damiano case will arrive at ConCourt as dead in the water tomorrow
I can exclusively reveal that FAZ has interpreted the High Court judgement, that stayed all proceedings in the lower court, to mean that all decisions made earlier and processes conducted earlier in the High Court are all stayed while the ConCourt handles the application for determination of the High Court’s jurisdiction in handling this matter. They deduced that the stay allows FAZ to go ahead with provincial and then presidential elections without problems, provided there are no COVID-19 restrictions. This is because, they interpretate the ruling to mean that the exparte order issued by the lower court was also stayed.
Interestingly, assuming he is allowed to submit an appeal out of time, Damiano cannot ask the ConCourt to interprete the High Court ruling since the appeal is strictly on the High Court’s ruling on the issue of jurisdiction. The application for interpretation of the ruling on stay of execution can only be made in the High Court which for now is incumbered by its own ruling. It’s a sticky wicket, a catch-22, behind the black ball or should I say a fufu veve in the weldi – teti ufilondolole bwino. Imbombo.
With the Court of Arbitration for Sport in Switzerland ruling that Kalusha’s case is deemed withdrawn, his legal process to get back on the ballot is basically over. When I started writing these articles, there was a clique of people that thought that when Kalusha loses I would celebrate or get happy or that I hate the man. No man I don’t. Mwaloba ilyauma. I love and respect the icon and take no pleasure in celebrating his losses. I just have the balls to call him ‘stubborn’ and to advise him to do the right thing.
You see guys, I am not a seer like Seer 1 claims to be. But I just happen to see these things ahead of time. These things are easy to see in advance when one removes emotions from his perception and thoughts and dedicates time to interrogate the situation. I am in mid-life now so I can dedicate hours to this case as i don’t have time for beer or girls or other time-wasters: researching reading and thinking. I can easily predict what will happened based on the balance of probabilities and efforts put in by the two sides of the case. When some people are calling me names and even telling me am wasting time, I don’t mind them but instead interpret the rules and procedures and also look at the merit and demerits of each case.
This is why it was easy for me to see that, at CAS, Kalusha never had a good case. I was always aware this case was not strong and when the Sole Arbitrator, in the preliminary judgement, said that Kalusha’s chances of inning the case were slim, it confirmed my views. (Don’t argue. Read the judgement.) When I proposed that Kalusha should not pay his fees and allow the case to die so that he doesn’t carry the stigma of a bad judgement on his back, his supporters attacked me. When Kalusha followed my advice, now they are saying it’s a smart move by Kalusha. So who is smart huh? Hahaha
Anyway, to close, Kalusha’s people are now looking towards FIFA officials coming for a meeting hoping they can cancel the current electoral process and start the process afresh. But that can’t happen. Two reasons: 1. There is no legal basis for FIFA to intervene in disputes as FAZ statutes only recognise CAS. 2. In my first article, and the next two, I insisted that Kalusha should have administratively written to FIFA to get clearance form the Independent Ethics Committee of FIFA so that he knows f he can stand. His supporters said I was just a Facebook lawyer and knew nothing. Aren’t you now back to putting all your hopes on FIFA 5 months later? Oko usulile ekoopa noko. It’s too late now. And isn’t this the same official who Damiano threatened arrest once he landed? Now he should come and favour Damiano’s case?
As for the court case, I will not go into dismissing it or supporting its merits as that will be contempt of court. I can only say that FIFA and FIFA, historically, don’t enforce local court decisions – as they are deemed as interference from the government (judiciary) and so are unlikely to reinstate Kalusha Bwalya in any electoral process no matter what the courts decide. So it is curtains when it comes to the ballot paper.
Lastly, I can’t wait for the elections to pass and then for football to come back in earnest. Zambian football should not be a battle-ground. All of you guys fighting each other over Kamanga and Kalusha seleni tubombeko. Football should always be the winner. We are one, guys. We need to turn the page and get back to the glory days of 1987 and 1988 or 1994 and 1996.
DISCLAIMER: This writing is simply an attempt at understanding whats happening. All opinions in here are mine. My what I have seen, read and what I know.
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