THE Supreme Court has quashed a default judgment in which the Lusaka High Court directed first President Dr. Kenneth Kaunda to pay over US$1.2 million to Central Chambers and five other law firms for legal fees.
In their judgment, retired Deputy Chief Justice Marvin Mwanamwambwa and Deputy Chief Justice Michael Musonda, Mumba Malila, Charles Kajimanga and Nigel Mutuna have since set aside the said default judgment on grounds that the evidence before court showed that Central Chambers undertook to represent Dr Kaunda on pro-bono basis in 1998.
Dr Kenneth Kaunda appealed against the Lusaka High Court’s refusal to set aside a judgment in default that ordered him to pay over US$1.2 million (about K6 million) to five Lusaka law firms which represented him in civil and criminal cases.
This was in a matter where Sakwiba Sikota’s Central Chambers, Lukona Chambers, Patrick Mvunga and Associates, Lighthouse Chambers and Dove Chambers sued Dr Kaunda and Sebastian Zulu as representatives of UNIP, claiming payment of US$1,208,026.25 plus interest and costs with regards to the misprision of treason case, citizenship case, Black Mamba case, Kabwe assassination attempt and a presidential petition in which Dr Kaunda retained the said law firms.
The complainants stated that Dr Kaunda failed to pay the money despite numerous reminders.
Dr Kaunda in his affidavit in opposition had stated that the plaintiffs volunteered their services and at no time during their conduct of the matters did they disclose that they were going to charge him for legal fees.
However, the Lusaka High Court deputy registrar on December 8, 1998 entered a judgment in default of appearance in favour of the plaintiffs in the sum of US1,208,026.25 with interests and costs.
Dr Kaunda and Zulu applied that the default judgment be set aside.
High Court judge Dominic Sichinga on November 18 ruled that after considering the grounds of appeal, he found that Dr Kaunda’s explanation that he thought the lawyers who sued him were retained on pro bono basis flew in the teeth of the averments he made in his affidavit that he instructed them to represent him personally and Zulu.
Justice Sichinga stated that Dr Kaunda had admitted in his affidavit that he instructed the plaintiffs to defend him but that he was denying the same.
“Further, it has been 15 years since the default judgment was made. I have considered the prejudice which would be occasioned as against the plaintiffs. I am of the view that that prejudice is quite real,” judge Sichinga ruled.
“In view of the afore stated, this appeal fails. I decline to set aside the default judgment entered on 18th day of December 1998 as it lacks merit and I find that there has been inordinate delay. Leave to appeal to the Supreme Court is granted. Each party to bear their own costs.”
In their five grounds of appeal filed in the Supreme Court against the entire judgment of justice Sichinga, Dr Kaunda and Zulu stated that judge Sichinga erred in law and in fact when he refused to set aside the default judgment and held that the application lacked merit without adjudicating on the evidence adduced before him that the basis of filing the action in issue was meant to help them raise money from well-wishers and that the amounts indicated in the action were based on estimates.
The appellants stated that the judge erred in law and fact in not appreciate the fact that the alleged admission by Dr Kaunda to have instructed the respondents was contextualised and had to be read with other affidavits explaining the background and issues surrounding the matter in their entirety.
The appellants stated that the admission was not an admission with regards to the amounts claimed.
Dr Kaunda and Zulu said that the trial judge erred in law and fact when he refused to set aside the ruling without adjudicating on whether the action by the respondents was in compliance with the legal practitioners Act Chapter 30 of the Laws of Zambia.
The appellants stated that the evaluation of the evidence by the court below was not balanced because only evidence against them was analysed and relied on while evidence in favour of them was not analysed in the ruling such as the fact that the filing of the action was not used as a fundraising venture.
Dr Kaunda and Zulu added that judge Sichinga erred in law by finding that there was inordinate delay.
The Supreme Court has however ruled that the legal suit against Dr Kaunda was tainted with irregularity as there was no evidence adduced before court that the bill for legal service was issued to warrant Central Chambers’ claim against the first Republican President.
The court noted that the claim by Central Chambers and other law firms against Dr Kaunda was contrary to the Legal Practitioners Act Chapter 30 of the Laws of Zambia and Order 50 Rule (2) of the High Court.
The Supreme Court has since referred the respondents to the Legal Practitioners’ Committee of the Law Association of Zambia so that an appropriate action can be determined against them as they could not be sanctioned by the court for failure to exculpate themselves during the Legal Fees’ Claim Appeal Case.