Harry Chibesakunda v Zambia Hoticultural Products Limited and Anor (1996/HP/ 4536) [2022] ZMHC 105 (25 March 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 1996/HP/ 4536 BETWEEN: HARRY CHIBESAKUND AND CCU RT C" DPINCIPAL 25 MAR 2022 - PLAINTIFF ZAMBIA HORTICULTURAL PRODUCTS (cid:9) LIMITED 1ST DEFENDANT ZAMBIA DEVELOPMENT AGENCY (cid:9) 2N0 DEFENDANT Before: (cid:9) The Hon. Mr. Justice Charles Zulu. For the Plaintiff (cid:9) For the 1st Defendant: (cid:9) Mr. Z. Sampa, Messrs Simeza, Sangwa Associates. (Defunct) For the 2nd Defendant: (cid:9) Mrs. T. Nkunika-Musukwa, In-house Counsel. RULING Cases referred to: 1. Worcester v. Georgia 6 Pet. 515. 2. Gordon v. United States, 117 U. S. 697,702. Leqislatiort referred to: 1. The High Court Rules Chapter 27 of the Laws of Zambia. Other materials referred to: 1. Joseph R. Long, "The Enforcement of Judgments Aqainst the State, Virginia Law Review, Dec, 1916, Vol. 4, No. 3, pp. 157 - 173. (cid:9) -R2- This ruling is in respect of an application by the Plaintiff for the Court to direct or fix the time within which the second Defendant, Zambia Development Agency (ZDA) should liquidate the judgment debt ordered in a consent judgment dated, June 5, 2019. The debt was inherited from the first Defendant now defunct, and from the Zambia Privatization Agency. The application was made pursuant to Order XXXVI rule 7 of the Hiqh Court Rules Chapter 27 of the Laws of Zambia. The said Order provides: The Court or a Judge, at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court or a Judge thinks fit. The opposition to the application is basically that, the Defendant's failure to liquidate the judgment debt was not deliberate, but that efforts to honour the judgment debt can only be made when funds are released by the Government from the Treasury. The issue of non-enforceability of court judgments against the state or/and quasi-government organization/ parastatal is one that continues to spur debate among jurists. The learned author, Joseph R. Long, in his article "The Enforcement of Judgments Aqainst The State, Virginia Law Review, Dec, 1916, Vol. 4, No. 3, pp. 157 - 173, went at length to discuss the issue in relation to the court's authority. The learned writer meticulously traces the issue as far back as the early 1800s, when the Chief Justice of the United States -R3- of America, Marshall C. J., in Worcester v. Georgia 6 Pet. 515 had this to say: If legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under these judgments, the Constitution itself becomes a mockery, and the nation is deprived of the means of enforcing its law by the instrumentality of its own tribunals, so fatal a result must be deprecated by all; and the people of Pennsylvania, not less than citizens of every state, must feel deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves.... It will be readily conceived that the order which this court is enjoined to make by the high obligations of duty and of law is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty and therefore must be performed. A preemptory mandamus must be awarded. Again, in Gordon v. United States, 117 U. S. 697,702 Marshall was on hand to eruditely state that: The award of execution is a part, and essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. Indeed, a legally aggrieved litigant comes to court to seek justice, in form of judicial remedies, to redress the breach or misfeasance occasioned to him or her. Generally, a successful litigant has a right to enjoy the fruits of his or her judgment, enjoyable through the avenue of judicial enforcement, if the judgment debtor is unwilling on his/her own free will to honour the debt. As rightly submitted by R 4- - Marshall C. J., in Worcester v. Georqia (supra), it is analogously a mockery of justice where the judgment creditor is for ages on end rendered incapable to enforce his judgment and bring a closure to the dispute. However, in the present case, the issue should not only be considered from the provisions of Order XXXVI rule 7 of the HCR, which has a general application, most importantly, regard should also be had to section 1 1A of the Zambia Development Act No. 11 of 2006, which provides: Where any judgment order is obtained against the Agency, no execution, attachment or process of any nature, shall be issued against the Agency or against any property of the Agency, but the Agency shall cause to be paid out of its revenues such amount as may, by the judgment order, be awarded against the Agency to the person entitled to such amount The question that follows is whether, the above provision renders it impermissible for the court to fix the time within which the ZDA should be ordered to liquidate the judgment debt. And my considered resolve is that, the present application is untenable in the light of section 1 1A of the ZDA Act. Section 1 1A of the ZDA Act, does not only out-rightly prohibit enforcement in terms of execution of judgments or attachments against the ZDA, it also prohibits any process of an enforcement nature. The fixing of time to order ZDA to liquidate the debt is such a process. -RS- In any event, it is nugatory for the Court to fix or direct the second Defendant to pay within a stipulated time, because such an order cannot mature to a level of enforcement, if disrespected. While it is regrettable that there is no imminent closure to this case that started since 1996, the Court's hands are fettered, except to commiserate with the Plaintiff, and gratuitously urge the ZDA to pay, and not to further cause injustice to the Plaintiff. In the light of the above, the application by the Plaintiff is hereby dismissed, and I make no order as to costs. Leave to appeal is granted. DATED THE 25TH DAY OF MARCH, 2022. THE HON. MR. JUSTICE CHARLES ZULU