M.L. Mukande and Company (Suing as a firm) v Zambia Development Agency (HP 169 of 2009) [2015] ZMHC 145 (15 October 2015)

IN THE AT THE HOLDEN (Civil BETWEEN M. L MUKANDE AND COMPANY (Suing as a firm) AND 2ee9/HP/169 APPELLANT ZAMBIA DEVELOPMENT A':iENCY RESPONDENT Before ~onorable Mr. Justice C. F. R. Mchenga SC For the Plaintiff: M. L. Mukande Mukande & Co SC with M. Mwitumwa, Messrs M. L For the defendant: J. S. Kankondo, Legal Counsel Z. D. A J U D G MEN T Cases referred to: 1. Gastov~ Kapata v The People [1984] Z. R. 47 2. Harry Mwanga Nkumbula and Simon Mwansa Kapwepwe v The Attorney General [1979] Z. R. 267 Legislation "eferred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia. 2. The Zarrbia Development Act, Pct No 1 of the 2e1e J2 In this app~al, I will refer to the appellant cs the plaintiff and the respondent as the defendant, which is what they were before the appeal. The appeal is against the ruling Jf the learned Deputy Registrar, .::smissing the plaintiff's application for an order to fix time within which the defendant should pay interest accrued on the Judgment SUll. In he~ ruling of 28th January 2015, the learn2d Deputy Registrar observed as follows: "the ap~Licati~n LQ fix time in which to pay~ in ny view wiLL be caught up or be subjEcted to Section 11A of Act No. 1 of 2818. Even if I fixed the time in which tc pay, and the Defendant faiLed to Liquidot~ the some amount within the stated period of time, there wouLd be no executio, made. The onLy option is to engage tl>e institution to commit itseLf into mol?ing sure that it nonours its obLigation as quickLy as possibLe or making its o:ficer responsibLe to seeing to it tnat the in, titution pays without foi L. " One ground of appeal has been advanced and it reads as follows: "That t~e Learned Deputy Registra.- erred in Low and fact when ShE heLd that she cauLC: not fix time in which wterest on the Judgment sum shouLd be paid because Section VA of the Zambi.u DeveLopment ~ct No 1 of 2818 gives the responde'1ts imnunity from execution of process." At the hearing of the appeal, counsel relied 01 the skeleton arguments they had filed in support of their respective client's cases. On behalf of the plaintiff, Mr. Mukande SC, submitted that the ap~lication f~r an order to fix time in which tc pay interest accrued J3 on the judgment sum was made pursuant to Order XXXVI rule VII of the High Court Rules, of the High Court Act. It provides as follows: "The Coc'rt or a J Jdge, at the time of making any judgment or order, or at any time afterwords, ~oy direct the t~Me within which the payment or other oct is to be ~ode or done, reckoned from the dote of the judgment or order, or from some ot~er poi~t of time, as the C?urt or a Judge thinks fit." Ccunsel submitted that the plaintiff is not seeking tc execute judgment on the cefendant, but to compel the defendant to comply with the law. He submitted that the immunity from execution that the defendant enjoys by virtue of Section llA of the Zambia Development Act cannot :Jrevent the court frcn making an order wi thin lvhich the interest on the judg~ent sum should be paid. Finally, Mr. Mukande SC submitted that it was within the courts power to order that time be fixed wi thi , which the defendant should pay the plaintiff be fixed. In response,. Mr. Karkondo submitted that the learned Deputy Registrar was on firm ground when he dismissed the p::'aintiff' s application. Counsel further submitted that the defendant is a Government funded institution 3nd as SJch can only l~quidate its liabilities as and when funds are a~ailable from the Government of the Republic of Zambia. J4 Mr. Kankondo urged me to take jujicial notice of the fact that the defendant i~ a government funded institution. He referred to the case of Gastove Kapata v The People (1) where it was held: '7n 50 jar 05 the utiLisation of personaL knowLedge is concerned~ the generaL ruLe is that a court may', in arr-:"Jing at its decision in a particuLar case" act an i. ts awn personaL knowLedg~ of facts af a generaL nature, that is notoriolAs facts reLevant to the COS!!.n He reiteratec the defendant's com~itment to settling the debt as shown by various steps taken including a request to the Ministry of Finance to release funds to facilitate payment to the Appellant. He also pointed out that the principal sum plus interest amounting to K4,220,282.8') which was paid to -.:heplaintiff was sourced from the Ministry of Finance. Counsel maintained that the learned Deputy Registrar was on firm ground when she held that the application to fix time in which to pay will be caught up by section 11A of the Zambia Development Agency Act. He referred to the case of Harry Mwanga Nkumbula and Simon Mwansa Kapwepwe v The Attorney General (2), where it ~cs observed as follows: "The ap~eLLants s~ek decLaratians to the effect that the amendments ta the Canstitution were invaLid and that consequentLy tr. E eLections of the President and memtErs of the CentraL Committee were aLso invaLid. The mokbg of such decLarations is entireLy within the discretion of the court,} and as Lord SterndaLe, M. R, said in Hansen v RadcLiffe V. D. C. (3), generaLLy speaking the JS jurisdiction of the court under this ruLe is in effect onLy Limited by its own judicial discretion. It is 0 further principLe tho~ courts wiLL not moke orders which Gre of no ovoiL. It is trite for instonce thot 0 cou."t wilL not normaLLy make on order reLating ta the custody of an infant, who is out of the jurisdiction,} .ooJhere such order can'1Ot possibLy be enforced. n Counsel implored This court to dismiss the appeal with costs. I am indebted to cOJnsel for the:n submissions and I have taken them into accoun~ in arriving at my decision. The learned Deputy Registrar declined to grant the application to fix time within 'Nhicr to pay interes~ on the ground that Section llA of the Zambia Development Agency Act does not allow execution against the defendant in the event of default. It provides as follows: ((Where Q.1Y judgment order is obtained against the Agency) no execution,} attachm?f1t or process of any nature} shaLL be issued against the Agency or against any property of the Agenc}, but the Agency shaLL cause to be paid out of its revenues such amount as mo}'. J by the judgment order) be awarded against the Age~cy to The person entitLed ~o such amount.» While I agree with the submission on behalf of the defendant that the courts shou ld not milke orders thilt cannot be enforced, it's my view that giving a time limit in which the interest should be paid does not conflict with the Zambia Development Agency Act. The grant of such an orjer does rot in itself give the plaintiff ~ower to execute against the defendan~ in the event of default. The objection raised in this )6 case is one that should be raised when the plaintiff at:empts to execute shoJld it turn out to be the case. Consequentl:t, I fir;d that there was misdirection when the learned Deputy Registrar declined to fix the time witt in which to pay onlhe ground that it w:Juld conflict wi th the provisions of Section llA of the Zambia _evelopment Agency Act. The appeal is allowed and I fix 180 days as the time wit lin which the amount should be paid. Ccsts to the plaintiff, to be taxed in defaul: of agreement. Leave to a~peal is also grant~d. Delivered hi 15th day of october 2015 C. F.