Attorney General v Shah (Appeal 152 of 2001) [2003] ZMSC 107 (16 January 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 152/2001 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: THE ATTORNEY GENERAL APPELLANT AND JAYESH SHAH RESPONDENT CORAM: Ngulube, C. J., Chirwa and Chibesakunda on 23rd April 2002 and 16th January 2003 For the Appellant: For the Respondent: Mrs. N. Sharpe- Phiri, Sharpe & Howard Mrs. M. Mwansanbulu, Senior State Advocate JUDGMENT Chirwa, JS delivered judgment of the Court: - Case referred to: STICKROSE (PTY) LIMITED V THE PERMANENT SECRETARY MINISTRY OF FINANCE SC7. No. 30/99 Matters arising from this appeal are not in dispute. The respondent had some money which he asked First Alliance Bank Limited in December 1997 to convert to US dollars. He had K384,702,743.06 transferred from First Merchant Bank. If the money, K3 84,702,743.06 was converted or used to purchase US dollars at the exchange rate of KI,445 to a dollar, the respondent would have got US$266,230.67. However, before First Alliance Bank Ltd could convert the money to US dollars, the appellant, through the Drug Enforcement Commission ordered its seizure under some authority under the Narcotic Drugs and Psychotropic Substances Act. This seizure was lifted a year later, on 20th December 1998 to be exact and the respondent was paid US$153,881.10 leaving a shortfall of US$112,349.57. The respondent obtained : J2 : judgment for the balance due and the loss incurred as the money was put in a sundry account where it earned no interest, the judge ordered that this loss be assessed by the District Registrar. The learned District Registrar assessed this damage and arrived at the following awards: (a) Interest on the sum of US$266,230.67 at 18% per annum from 1st February 1998 until December 31st 1998. (b) The sum of US$112,349.57 being the difference between US$266,230.67 and US$153,881.10. (c) Interest on the sum of US$112,349.57 at 18% per annum from Is1 January 1999 until date of payment. The learned Deputy Registrar made his assessment on 5th September 1999. According to evidence on record, the appellant paid K50 million on 30lh September 1999 and this amount according to the exchange rate at the time came to US$17,544.00 leaving a balance of US$494,845.17. The appellant then appealed to the Supreme Court under appeal No. 10/2001 and this appeal was abandoned by the appellant on 17th April 2001 at Kabwe. In an attempt to have the judgment debt satisfied, the respondent applied to the High Court for an order of time frame within which the debt would be liquidated. This was under Order 36 r.7 of the High Court Rules. It seems on the appointed day for the return of the summons the appellant did not attend and the Court granted the order and set the 2nd October 2000 for the appellant to provide the time frame within which the debt would be liquidated. The record does not show what transpired on 2nd October 2000 but there are proceedings in Court on 27th September 2001 which resulted in an order being issued joining the Secretary to the Treasury and ordering both the appellant and the Secretary to the Treasury to appear before the Court on 5th October 2001. The record also shows that the appellant appeared ex-parte on 3rd October 2001 where leave to appeal to the Supreme Court against the granting of the order for the Attorney General to appear to show time frame was granted. The court had this to say: - “Leave to appeal to the Supreme Court granted as sought and I will also stay the order pending the Supreme Court hearing. This ruling is subject to inter-parte hearing on 05/10/01 at 0900 hours”. : J3 : There was no inter-partes hearing on 5th October 2001. The appellant has appealed against the order ordering the Attorney General and Secretary to the Treasury to appear before the High Court to give time frame within which to settle the debt. There are two grounds of appeal, namely; - 1) that the honourable judge misdirected himself when the ordered that the Attorney General and Secretary to the Treasury to appear before the High Court to give time frame within which judgment debt will be settled contrary to Section 21 (4) of the State Proceedings Act; 2) That the honourable judge erred in law when he sought to execute the judgment as he was functus officio and therefore could not make any further order or ruling on the said case as there is already a judgment. In arguing the appeal, reliance was placed on the written heads of arguments. The real issue is whether the order issued by the learned judge is execution of the judgment on the State. Section 21 (4) recognizes there are other methods available to satisfy judgment against the State. There are good reasons for not allowing execution against the State but the judgment creditor is not left without remedy; and this is provided for in Section 21 (1), (2) and (3). The law provides that a judgment creditor may be issued with a certificate in prescribed form containing particulars of the judgment debt to be served on the Attorney General and Permanent Secretary, Ministry of Finance who shall pay the amount due. That is the mode of enforcing judgment against the State. In the present case the respondent took out summons for directions for the appellant to indicate the time frame within which he hopes to liquidate the debt. Such a direction or a certificate issued under Section 21 (1) is not an execution prohibited under Section 24 (4) of the State Proceedings Act. Execution is an act of completing or carrying into effect of a judgment by writs of execution or orders which compel the defendant to do or pay what has been adjudged. The Court is not completely i J4 : ineffective in judgments involving the State as can be clearly seen in Section 30 (4) of the State Proceedings Act. The case of STICKROSE (PTY) LIMITED V THE PERMANENT SECRETARY MINISTRY OF FINANCE relied upon by the appellant is no authority that there can be no order against the state on any debt owed as it was observed that the State is not absolved from its obligation to pay the sum indicated in the certificate lawfully issued. The Court in STICK ROSE case disapproved the use of Judicial Review process as a way of enforcing the judgment. However, coming to the facts of the present case, the proceedings commenced in the High Court of seeking directions of the Court on what is to be done next as there can be no execution against the State is not an application for a certificate as provided under Section 21 of the State Proceedings Act. The Court can be properly moved once a Certificate has been issued. As we indicated, the Court has powers under Section 30 (4) to issue an order of mandamus. The appeal succeeds on the ground that proceedings undertaken by the respondent were not for a certificate by a proper officer of the Court envisaged in Section 21 (1) of the State Proceedings Act. The appeal is allowed with costs to be agreed and in default to be taxed. The respondent still has option under Section 21 (1) of the act to proceed on. M. M. S. W. NGULUBE CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE