THE Law Association of Zambia has demanded an appeal against High Court judge Evans Hamaundu's decision to throw out an application by the state to register the London High Court judgment against Frederick Chiluba and others.
The position by LAZ comes in the wake of judge Hamaundu's decision to throw out an application by the state to register the London judgment that found Chiluba and others liable for theft of about US$46 million public funds.
In a press statement dated August 18, 2010, LAZ argued that the decision on the matter should be left ultimately to the Supreme Court to decide. "The recommendation of the Committee is that LAZ endeavours to recommend to the stakeholders in this issue that the decision of the Honourable Judge be appealed against. Even if the Judge was correct in his view, and we opine that he was not, a decision of this magnitude must, for the sake of the development of jurisprudence on the issue, be left to the Supreme court to ultimately make," LAZ stated.
"The Committee also recommends that council review the arguments prepared by Professor Muna Ndulo in this matter which provide insight on the issues at play. And so we opine." LAZ stated that there were two issues that arose from the decision of the Judge set out above. The association stated that the High Court of Zambia has had occasion to consider the Registration of Foreign Judgments from a country in respect of which no order extending the application of part II of CAP 76 to Judgments from the Courts of that Country had been made. "In the case of Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (2002/HK/526) the Hon. Mr. Justice Hamaundu, upon an application to set aside the registration of a judgment rendered by the High Court of South Africa being made before him, observed that: 'assuming that South Africa is not one of the scheduled countries, I wish to cite the case of Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233.'
“The law which applies in Zambia in default of any statute is the common law of England. At Common Law, the judgment of any competent foreign court for a sum certain is enforceable as a simple debt on the basis of an implied obligation which arises on the part of the judgment debtor. However, the foreign court must have had the necessary jurisdiction. The Judge went on to dismiss the application to set aside the registration of the South African Judgment," LAZ stated. LAZ stated that in his judgment of August 13, 2010, Judge Hamaundu did not refer to the earlier judgment he had rendered on a similar issue. The association argued that having clearly departed from the decision he made in the Reefcor case, judge Hamaundu was obliged to distinguish the latter case from the one involving the London Judgment. "By failing to do so, and yet arriving at a contrary conclusion in the later case, he contravened the well known doctrine of stare decisis, and, on this basis alone, his Judgment is liable to be reversed on appeal," LAZ stated. LAZ stated that in any event, the Supreme Court has held in two decisions cited by judge Hamaundu in his Judgment of August 13, 2010 that decisions of the Superior Courts of the United Kingdom were enforceable in Zambia. LAZ argued that judge Hamaundu was obliged to follow the guidance of the Supreme Court. "The Judge's Interpretation of Section 9 of Cap 76. Section 9 of the Foreign Judgments (Reciprocal Enforcement) Act provides thus:-
(1) The President may by statutory order direct that this Part shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments obtained in the courts of foreign countries, and, in the event of the President so directing, this Act shall have effect accordingly and the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, shall cease to have effect except in relation to those parts of the said dominions to which it extends at the commencement of the order," LAZ stated.
"(2) If, at any time after the President has directed as aforesaid, an order is made under section three extending this Part to any part of Her Britannic Majesty's dominions to which the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, extends as aforesaid, the said Act shall cease to have effect in relation to that part of Her Britannic Majesty's dominions, except as regards judgments obtained before the commencement of the order.
"(3) References in this section to Her Britannic Majesty's dominions shall be construed as including references to any British protectorate or protected state and any territory in respect of which a mandate on behalf of the League of Nations has been accepted by Her Britannic Majesty." LAZ stated that the association's view of this provision of the law was that:
“(a) An order of extension under subsection one could issue in respect of Her Majestyís Dominions not already subject to such an order in terms of the British and Colonial Judgments Act. The latter Act would then not apply to those territories;
(b) In terms of subsection two, an order of extension could be made to apply the provisions of part II to Her Majesty’s Dominions already covered under the British and Colonial Judgments Act (this necessarily includes the United Kingdom)." LAZ stated that the only question was if the order made by the Governor in 1958 an order within the meaning of section 9(2)
"The order made by the Governor is in these terms. It is hereby directed that Part II of the Act shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments in the courts of foreign countries." LAZ stated that the reading of this order showed that on its face, it was intended to apply to section 9(2).
The association stated that the Order contained the expression ìas it applies to foreign countries and to judgments in the courts of foreign countriesî.
"This is in terms of section 3 of the principal Act, which is referred to in section 9(2) of the Act. The clear intention of the legislator is to bring all judgments of her Majesty’s Dominions including the United Kingdom under the ambit of the Ordinance (now the Act), and thus rendering the British and Colonial Judgments Act irrelevant. Indeed that Act was repealed the very next year after the Governorís Order," LAZ stated. LAZ stated that the interpretation was vindicated by the fact that in terms of the extension orders issued by the Governor for Gilbert and Ellice Islands and the British Solomon Islands Protectorates, these referred to specific territories and clearly fall under section 9(1).
"The interpretation the Judge takes of this section and the Order under it defies the golden rule of statutory interpretation. By the Judge's reasoning, it was not possible after 1959, the year the British and Colonial Judgments Act was repealed, to enforce a Judgment from the United Kingdom in Northern Rhodesia. In effect, the Judgments of the Colonial Master were not enforceable in the Colony, Northern Rhodesia," LAZ stated. "This we submit is an absurdity. The legislator is deemed to act reasonably, and to that extent, the order of 1958 clearly applied to the United Kingdom; unquestionably one of her Britannic Majesty's Dominions. That is the interpretation of the law which avoids absurdity, and which in our view is clear from the face of the section and the order." LAZ gave a background on the London judgment involving Chiluba. The association stated that on July 9, 2007, the Attorney General of the Republic of Zambia (the ‘Judgment Creditor’) applied for and obtained ex parte, out of the High Court of Zambia an order for leave to register, in the Zambian High Court, a judgment which the judgment creditor obtained in the London High Court of Justice (the “London Judgment”), in the United Kingdom against Dr. Frederick Jacob Titus Chiluba and other defendants (the “Judgment Debtors”). LAZ stated that the Judgment Debtors applied to set aside the order granting leave and the application ultimately fell to the Hon. Mr. Justice Hamaundu to determine. LAZ stated that on August 13, 2010 justice Hamaundu upheld the Judgment Debtors’ application and set aside the order granting leave. "In so doing, the Judge held, in sum, that:- 1 The British and Colonial Judgments Act was enacted, primarily, to provide legislation by which judgments of Superior Courts in the United Kingdom would be registered in Northern Rhodesia.
Hence, Section 3 thereof provides for the registration of judgments obtained in the High Court in England or Ireland or in the Court of Session in Scotland. It was not necessary for the Governor of Northern Rhodesia to issue any order extending the Act to the United Kingdom before judgments of Superior Courts in the Kingdom would be considered for registration. However, the Governor had a discretion to extend, by declaration, the application of the Act to any of Her Majesty's dominions outside the United Kingdom" After the repeal of the British and Colonial Judgments Act in 1958 (by the Foreign Judgments (Reciprocal Enforcement) (Amendment) Ordinance No. 12 of 1959) which was the Act on the basis of which Judgments of the United Kingdom could be enforced in Zambia, Judgments of the United Kingdom could not and still cannot be enforced in Zambia. LAZ stated that In the Judge's view, the Foreign Judgments' (Reciprocal Enforcement) Order issued by the Governor of Northern Rhodesia in 1958 under the Foreign Judgments (Reciprocal Enforcement) Ordinance, (which is now the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of the Laws - pursuant to Statutory Instrument No. 152 of 1965) related to Her Britannic Majesty's dominions outside the United Kingdom and not to the United Kingdom itself.
"The Judge's conclusion at (3) above springs from his interpretation of section 9 of the Foreign Judgments (Reciprocal Enforcement) Ordinance, (which is now the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of the Laws)," stated LAZ. "The Judge contends that on a reading of that section, the Governor (and subsequently the President) would have required to issue an order under section 9(2) of the Ordinance/Act extending the application of part II of the Ordinance/Act to the United Kingdom after the repeal of the British and Colonial Judgments Act before a Judgment of the United Kingdom could be enforced post 1959 when the latter Act was repealed."

Source: http://www.postzambia.com