United States based Zambian law Professor Muna Ndulo yesterday said he is shocked and confused by Lusaka High Court judge Evans Hamaundu’s decision to throw out an application by the state to register the London High Court judgment that found former president Frederick Chiluba and others liable for theft of about US $46 million public funds.

Commenting on judge Hamaundu’s judgment, Professor Ndulo observed that Zambia had entered a dangerous phase.

“While respecting the independence of the judiciary as we all must, I am shocked and confused by judge Hamaundu’s judgment,” Professor Ndulo said.

“The courts ought to be listening to reasoned argument. Regretfully, anything is possible in circumstances where courts are prepared to interpret statutes and case law in a manner which serves their desired objectives. Zambia has entered a dangerous phase. The country needs a good constitution that enhances the independence of the judiciary, strips the presidency of the powers and patronage that fuel dictatorial rule.”

Professor Ndulo regretted that the National Constitution Conference in its recently adopted constitution had squandered the opportunity.

Last Friday, judge Hamaundu threw out an application by the state to register the London High Court judgment that found Chiluba and others liable for theft of about US $46 million public funds.

He noted that some of Chiluba’s arguments against the enforcement of the London High Court judgment in Zambia were irrelevant to the issues under his consideration.

This is in a matter in which Chiluba and others challenged an application order granted to the Zambian government, through the Attorney General, for the registration of the judgment.

Judge Hamaundu said if such judgments were not enforceable under any of the written laws, then the creditor should seek to enforce such judgment at common law.

“Therefore, the first issue to be determined in this application is whether the judgment of the London High Court of Justice is enforceable either under the Foreign Judgments (Reciprocal Enforcement) Act or under any other written law,” judge Hamaundu said.

“I have searched in our laws, including the ‘Applied Laws’ for any other statutory provision by which judgments obtained in the courts of the United Kingdom can be enforced by direct registration. Other than the Maintenance (Enforcement) Orders Act and, perhaps, the Matrimonial causes Act No. 20 of 2007, I have been unable to find any. Of course, those two statutes do not apply to judgments for payment of money.”

Judge Hamaundu said in the circumstances, the Zambian government should have sought to enforce the London High Court’s judgment by recourse to the common law, under the principles of “Private International Law” or “Conflict of Laws”, as the principles are alternatively known.

“Therefore, in the circumstances of this case, the judgment creditor ought to enforce the London High Court Judgment at common law by commencing an action founded on it as a cause of action. These proceedings do not constitute such an action,” said judge Hamaundu.

“For the foregoing reasons, the judgment debtors’ application to set aside the order granting the judgment creditor leave to register the judgment of the London High Court of Justice succeeds. I hereby set aside the order that was granted to the judgment creditor on the 10th July 2007. In view of the legal issues that this matter has raised, I order that either side bear their own costs.”
 

Source: http://www.postzambia.com