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Hamaundu's decision over London judgment wrong - TIZ

Hamaundu's decision over London judgment wrong - TIZ
By George Chellah and Patson Chilemba
Sun 22 Aug. 2010, 04:00 CAT

TRANSPARENCY International Zambia (TIZ) has advised Attorney General Abyudi Shonga not to be influenced by political pronouncements concerning the appeal against Lusaka High Court judge Evans Hamaundu’s ruling on Frederick Chiluba’s London judgment.

But Vernon Mwaanga said the government’s position not to appeal against judge Hamaundu’s decision to throw out an application by the state to register the London judgment against Chiluba and others must be respected.

In a letter to Shonga dated August 20, 2010, which was also copied to Vice-President George Kunda and Law Association of Zambia (LAZ) president Stephen Lungu, TIZ executive director Goodwell Lungu urged Shonga to consider appealing.

“Dear Sir, RE: TIZ RECOMMENDATIONS ON JUDGE EVANS HAMAUNDU’S RULING ON THE REGISTRATION OF THE LONDON HIGH COURT JUDGMENT AGAINST DR. FTJ CHILUBA AND OTHERS. The above captioned subject refers. We write to recommend to your good office to consider appealing or consider registering the London High Court Judgement involving Dr. Frederick Chiluba and others under Common law as observed in Judge Evans Hamaundu’s August 13th 2010 judgment.

We wish to also encourage your office not to be influenced by political pronouncements such as the one attributed to the Chief Government spokesperson in today’s Times of Zambia that Government will not appeal, as we believe such a decision can only be made by your office which is a competent authority as the current Attorney General of the Republic of Zambia (AGZ) on this matter,” Lungu stated.

“We write and want to note from the outset that Transparency International Zambia (TIZ) wishes to place on record its gratitude to the former Attorney General but now his honour the Vice President and Minister of Justice for the Republic of Zambia, Hon. George Kunda, SC for having taken a leading role on behalf of the people of Zambia in ensuring that the Former Republican President, Dr. Fredrick Chiluba and others were pursued in the London High Court for defrauding the people of Zambia of millions of United States Dollars.

For the avoidance of doubt, the London High Court judgment established that “The AGZ then Mr. George Kunda considered it appropriate for the proceedings to be brought in the High Court in London for a number of reasons. First it is alleged that significant Defendants namely MCD, CM and AS (Meer Care and Desai, Cave Malik & Co. and Atan Shansonga) were based in London and large amounts of the allegedly stolen monies were passed through accounts held by them onward to other destinations both in Europe and elsewhere. Accordingly AGZ Mr. Kunda concluded that the claims he brought were centred in London”.”

He stated that TIZ believed that the government then decided to take such a course of action believing that the money in question was for the citizens of Zambia.

“TIZ has taken time to study and reflect on the ruling passed by Judge Evans Hamaundu on 13th August, 2010 in which he set aside the order granting the Attorney General leave to register the judgment of the London High Court of Justice obtained against former President Dr. Frederick Chiluba and others.

Our observation is that the issue that the Zambian High Court has addressed in its judgment is only one – namely whether the judgment of the London High Court of Justice should be enforced by direct registration. High Court Judge Hamaundu does not, anywhere in his judgment pronounce himself on the judgment’s validity, which judgment was obtained in a competent court; the London High Court of Justice,” he stated.

He stated that as far as they were concerned, the findings against Chiluba and others still remain valid.

“Our understanding of the Ruling is that Judge Hamaundu did not state that judgments from the United Kingdom could not be enforced in Zambia except that he has set aside the order to grant the Attorney General of Zambia, on behalf of the Zambian people, leave to directly register the London High Court judgment under the Foreign Judgments (Reciprocal Enforcement) Act.

Judge Hamaundu states that a judgment creditor (Attorney General) wishing to enforce a foreign judgment at common law will have to commence an action founded on that judgment as a cause of action (J19. It is our considered view that Judge Hamaundu actually presented your honourable office another avenue through which you should consider in seeking the enforcement of the foreign judgment against Dr. Chiluba and others,” Lungu stated.

“We find it instructive that Judge Hamaundu in his judgment does not favour direct registration as a way of enforcing foreign judgments. What we find more intriguing is that he fails to refer to his own judgment in Reefcor Limited v. Les Generals Des Carriers Et Des Mines Exploitation Gecamines (High Court for Zambia, Kitwe District, (11 June 2007) (2002/HK/526) where he allowed for direct registration, a judgment rendered by the High Court of South Africa despite the respondent arguing that South Africa is not one of Her Britannic Majesty’s dominions, neither is it a British protectorate nor a mandated territory and that it does not have a reciprocal agreement with Zambia and did not fall under the Foreign Judgment (Reciprocal Enforcement) Act Chapter 76 of the Laws of Zambia.

Judge Hamaundu after observing that no proof was rendered in court to show that South Africa had not been added to a list of countries covered by the Foreign Judgment (Reciprocal Enforcement) Act, held: “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”.

“He applied the following passage from the Supreme Court Judgment in Mileta Pakou: –“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 then dismissed the application to set aside the Registration. Essentially, the Judge sanctioned the direct registration under CAP 76, of the Judgment on the basis of Common Law.”

He stated that TIZ was baffled that judge Hamaundu elected not to be bound by his own precedent.

“We encourage your office to pursue this issue to its logical conclusion. It is important to note that the Zambian Government has already used the London High Court judgment to extract payments from defendants Atan Shansonga, Bimal Thaker, B.B Thanker, Cave Malik and their insurers in the United Kingdom,” Lungu stated.

“Properties in Belgium were recovered with a gross value of US$8 million in a claim against four (4) European defendants based on the same allegations of conspiracy to defraud as was maintained against Dr. Chiluba and other Zambian defendants.

The Zambian Government has registered the same Judgment against Raphael Soriano in the Belgian Courts and resisted an application by Raphael Soriano challenging that registration.

“Given this new development, we believe that your office on behalf of the Zambian Government will inform the Zambian people of the next steps as soon as possible. TIZ is of the view that such an important pronouncement on the law as to reciprocity of UK Judgments must go all the way to the Supreme Court.

As far as we are concerned, this matter is far from concluded and it will be a pity if Government abbreviates this process for other reasons other than legal ones.”
He said it was TIZ’s unwavering position that this is a matter of immense public interest and it cannot be abandoned at this hurdle.

“It is thus unimaginable that your good office can abandon the cause at this stage given the rather large judgment sum which should be recovered from the judgment debtors. Thanking you in anticipation for your next steps in this important matter,” stated Lungu.

But commenting on the demand by LAZ to appeal against judge Hamaundu’s decision to dismiss an application by the state to register the London judgment, Mwaanga, who is MMD parliamentary chief whip, said the government’s position not to appeal meant that they had studied the judgment and concluded that there was no basis on which to appeal.

“Even that view not to appeal has got to be respected as well, because they are the ones who are competent to make that decision. It is the state that wanted the judgment to be registered. They are the ones who spent hours and money working on this case,” Mwaanga said.

“But on the basis of the judgment, they have studied the judgment obviously and they have come to that conclusion. And that view has got to be respected.”

Mwaanga said he respected the outcome of the judgment.
He said appealing was a matter for the government to decide.

“If they feel that there are reasonable grounds for appeal, I am sure they would have done so already. But from what I have been able to read in the media they have decided that they are not ready to appeal against the decision, and I respect that as well,” Mwaanga said.

“If the judge makes a far reaching decision, one has to study it very carefully, study its implications and from what I have been able to read as a lay man, his decision was quite well founded, unless someone is able to come up with something to the contrary. Unfortunately I am not the one who makes the decisions as to whether there should be an appeal or not.”

Mwaanga said he had read LAZ’s position on the matter but that was their view.
“There are also other views of prominent lawyers on both sides. Law you know is not an exact profession where all lawyers will agree on how the law should be interpreted.

So the LAZ view is one view, the judge has got another view,” Mwaanga said. “There are other people who have got other views. And it is part of our democratic dispensation to respect each other’s views.”

Mwaanga said there were many legal interpretations, adding that one could not say there was one view, which everybody should accept.

Mwaanga said the question of whether or not to appeal should be left to those who were competent.

In a press statement dated August 20, 2010, LAZ demanded an appeal against judge Hamaundu’s decision to throw out an application by the state to register the London judgment against Chiluba and others.

LAZ argued that the decision on the matter should be left ultimately to the Supreme Court to decide.

“For the purpose of creating an appropriate jurisdiction in law, the Attorney General should appeal to the Supreme Court so that there is finality in the matter. The judgment of the High Court has far reaching implications and therefore there is need for clarity in this area of the law,” stated Lungu. “In the alternative, the Attorney General is encouraged to consider commencing a fresh course of action under common law.

In his judgment, the Judge of the High Court alluded to this aspect and the Association is of the view that the Zambian government through the Attorney General should take all steps to ensure that finality is brought to this matter that has been costly not only to the government but the people of Zambia.

Labels: ABYUDA SHONGA, EVANS HAMAUNDA, FREDERICK CHILUBA, GOODWELL LUNGU, JUDICIARY, STEPHEN LUNGU, VERNON MWAANGA

posted by MrK @ 5:16 AM