Sangwa hails Supreme Court over Stanbic, Savenda K192m judgement
… ON THE NEED FOR A CONVERSATION ON WRITING OF COURT JUDGMENTS AFTER THE SAVENDA MANAGEMENT SERVICES LIMITED v STANNBIC BANK ZAMBIA LIMITED CASE
LUSAKA lawyer John Sangwa has hailed the Supreme Court for the manner in which it has upheld the Court of Appeal’s decision to quash the Lusaka High Court judgment, which awarded K192, 500, 000 in liquidated damages to Savenda Management Services Limited.
Savenda had sued Stanbic Bank for listing it on the Credit Reference Bureau (CRB) as a bad debtor, over US$540, 000 overdraft the company obtained from the bank in 2008 for purchase of a printing machine.
Savenda complained that listing it on the CRB was in total disregard of its rights and business reputation, claiming that as a result the company lost out on funding opportunities, and that its reputation was severely injured and lowered.
In his brief to the Chief Justice on the need for a conversation on writing of court judgments, Mr. Sangwa said the depth dedicated to the treatment of the issues in contention in the appeal was intellectually stimulating and refreshing. “Some of the observations and pronouncements in the judgment are timely. The three Supreme Court Judges (Nigel Mutuna, Michael Musonda, and Evans Hamaundu) who heard the appeal took time to address a very important issue, which is at the heart of every judicial process. An issue, which has never received serious treatment in any judgment of the Supreme Court: the Judge’s responsibility in writing a judgment.
“The judgment illuminates the independence, integrity and professional standing of the Supreme Court. All the Judges, including those in the Supreme Court who did not hear the appeal, must embrace and own the soul of the judgment in the Savenda case.
In March this year, the Supreme Court delivered Judgment No. 10 of 2018, in the case of Savenda Management Services Limited v Stanbic Zambia Limited.
It is believed to be the first Judgment by the Supreme Court since the Constitution of Zambia (Amendment) Act No. 1 of 2016, came into force on 5th January 2016. Through this amendment, the Supreme Court assumed a new jurisdiction to hear appeals from the Court of Appeal,2 as opposed to appeals from the High Court, which has been the position long before Independence in 1964. The Law Association of Zambia (LAZ) has been gracious enough to send the electronic version of the Judgment to all the legal practitioners. This Brief to the Chief Justice has been inspired by this Judgment. The depth dedicated to the treatment of the issues in contention in the appeal is intellectually stimulating and refreshing. 3 Some of the observations and pronouncements in the Judgment are timely. The three Judges who heard the appeal took time to address a very important issue, which is at the heart of every judicial process. An issue, which has never received serious treatment in any judgment of the Supreme Court: the Judge’s responsibility in writing a judgment. It is this kind of Judgment that would earn the Judiciary respect nationally and internationally. The Judgment illuminates the independence, integrity and professional standing of the Supreme Court. The existence of a Judiciary, which is respected both within and outside Zambia for its independence, integrity, professionalism and commitment to the rule of law, is indispensable for the growth and stability of any country. The need for such a Judiciary is even more pressing in Zambia, a country which is trying very hard to improve the quality of life of its people and consolidate its democratic gains, in the face of global regression in commitment to democratic principles and the rule of law. The thesis in this Brief is that all the Judges, including those in the Supreme Court who did not hear the appeal, must embrace and own the soul of the Judgment in the Savenda case. If they do so, it will lead to the enrichment of the
The writer is a partner in the firm of Simeza, Sangwa & Associates and the views expressed in this Brief are his own and do not represent those of the firm.
1 Appeal No. 37 of 2017 (Selected Judgment No. 10 of 2018)
2 See Article 125 of the Constitution.
3 Especially from paragraphs 196 to 213 of the Judgment, which addressed the award of judgment in the sum of K192,000,000.
independence, integrity and intellectual standing of the Judiciary as an institution and in turn enhance its standing both locally and internationally. The inadequacies highlighted by the Supreme Court in the Judgment of the trial Court, which awarded the Plaintiff the sum of K192,500,000 (or the Kwacha equivalent of US$20,263,157.89, at today’s exchange rate) based on questionable pleadings, a cause of action and claims not sound at law and most shockingly in the absence of any credible evidence to support such an award is not unusual. Judgments, which are based on unsound law and shaky evidence, often open the Judiciary to undeserved allegations of incompetence and at times corruption. The Judgment of the High Court in the Savenda case attracted both local and international interest. It undermined the independence, integrity and intellectual standing of the entire Judiciary and raised the possibility of judicial corruption. The judgment was an embarrassment to the entire Judiciary. Fortunately, the situation has been redeemed by the Supreme Court in its Judgment, the subject of this Brief. It is, therefore, crucial for Judges and legal practitioners to embrace and build on the Judgment not only because it is a Judgment of the final Court, therefore binding on all lower courts, but because it is instructive in many respects. It has created the opportunity to have a conversation on the quality of judgments being written by Judges.
PART I: THE SOUL OF THE SAVENDA JUDGMENT
The Supreme Court Judgment in the Savenda case is a long one by Zambian standards. However, the most important pronouncements which guided the three Justices in the writing of the Judgment and which illuminate the entire Judgment are found in paragraphs 209 of the Judgment, where the Justices quoted from a book by Dr Dato Syed Ahmed Idid: Writing of Judgments: a Practical Guide for Courts and Tribunals. The relevant part of the book quoted by the Justices reads: The decision must show the parties that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or his own reason and logic ---. The --- opinions of the parties in a case should not be copied verbatim and adapted to the judgment of the court. It is not just acceptable for a judge to mention in his judgment that he agrees with the submissions of a party and he has nothing to add. A judge should tower above the parties and counsel by applying some level of judicial reasoning logic in evaluation a case ---. (Emphasis mine) Inspired by these words the Judges, in the same paragraph, said:
What is clear from the judgment of the Learned High Court Judge is that he did not analyse the documents he relied upon to justify the award of K192,500,000 and the other damages but merely accepted them as [a] given. This is against the principles of judgment writing as revealed by ---. In paragraph 210 of the Judgment, they concluded: The assessment by the Learned High Court Judge of the damages, which we have set out above, is nothing but an acceptance of the submission (in the form of pleadings and documentary evidence) by the Appellant. He does not sieve the evidence or attempt to analyze, assess or apply judicial reasoning logic to it, vis-à-vis the K192,500,000 claimed. (Emphasis mine) By referring to the book the Justices acknowledged that the writing of judgments is not a matter of personal preferences by Judges. Judges do not have the right to write the judgments in any manner that they like. There are rules and principles, which must be followed. The writing of judgments has been a subject of debate and intellectual interrogation, which have yielded some principles and rules over the centuries, which must be observed by those charged with the responsibility to write judgments. Just like there are rules on practice and procedure in moving and prosecuting matters before courts, both civil and criminal, there are rules, which must be ollowed in the writing of judgments. The rules are necessary to provide transparency and fair determination of disputes before Court. The rules on writing judgments are necessary to secure well-reasoned and structured judgments. They protect and enhance the independence, integrity and professionalism of the Judiciary. Unfortunately, there has never been a conversation on the quality of judgments being delivered by Judges in Zambia. Since 1991, the conversations on the Judiciary have invariably focussed on the remuneration, appointments and independence of the Judges and more often than not on the delays in the delivery of judgments. There has never been a discussion on, perhaps the most important task in the quest for justice or the entire judicial process, how the judgments delivered by the Courts are written. It has been dangerously assumed that all Judges know how to write judgments. The Judgment by the three Justices has demonstrated that this is not the case. That the Judges took time to address this issue in the Judgment is recognition of the existence of challenges in the manner in which Judges write judgments.
They have also demonstrated that failure to follow the rules and principles on writing judgments may itself be a source of injustice. Judges who are supposed to dispense justice may also be the architects of injustice. As demonstrated by the Supreme Court, the award of the sum of K192,500,000 was based on a report, whose content was preceded by a disclaimer as to its completeness and accuracy.
4 Despite the disclaimer the High Court Judge accepted the content of the report as proven. The High Court Judge accepted as a fact that the Appellant had suffered a loss of K192,500,000, without more from the Plaintiff. Having analysed the evidence relied upon by the High Court Judge in allowing the claims; the Supreme Court demonstrated that allowing such a judgment to stand would have occasioned serious injustice to the Defendant. That Dr Dato Syed Ahmed Idid found it necessary to write a book on this subject suggests that the writing of judgments is a subject, which merits intellectual treatment. The book covers topics such as:
(a) Legal reasoning and judicial writing;
(b) Composition of a judgment;
(c) A standard judgment and grounds of decision;
(d) The British style of writing judgments and the civil law position;
(e) Decision writing by Philippine judges;
(f) Style, rules of grammar and punctuation in a judgment;
(g) Personal perspective in judgment writing; and
(h) Delivery of court judgment.
The set of 26 Volumes of the Laws of Zambia and the Rules of the Supreme Court 1965, are some of the reference manuals that every legal practitioners must have in her office. However, for one that has ascended to the office of Judge of a Superior Court, the book by Dr Dato Syed Ahmed Idid and others on writing judgments must be mandatory additions to her collection. In their Judgment, the three Justices fully embraced the rules and principles governing the writing of judgments. The Judgment shows that they actively interrogated the arguments advanced by the parties to the appeal. Thereafter, they made an intellectually and sound decision based on their own reasoning. The arguments and opinions of the parties to the appeal were neither ignored, which is the practice of some Judges, nor reproduced and adopted in the Judgment of the Supreme Court. They were interrogated and those that were sound were considered in the Judgment. Those that were rejected reasons were given.
4 See paragraph 207 of the Judgment.
They did not just rely on decided cases cited by the parties but did their own research and found cases at variance with the propositions advanced by the parties to the appeal. Where there were conflicting decisions these were analysed and distinguished.
Where portions of previous Judgments of the Supreme Court, delivered while it exercised appellate jurisdiction over the decisions of the High Court, were mischaracterized, the Court rose to the challenge and clarified the position of the law and what their previous pronouncements meant.
5. The Judges intellectually rose above the advocates of the parties to the appeal by applying a higher level of judicial reasoning in evaluating the issues in contention in the appeal. In the end, the Appellant knew and understood why they had lost and the Respondent understood why they were successful in opposing the appeal. In the process, the Supreme Court has delivered a landmark Judgment, which speaks to very large and varied audiences. The Judgment has enriched the independence, integrity and professional standing of the Supreme Court and ultimately of the entire Judiciary both locally and internationally. The Judgment shows that when Judges follow the rules and principles in writing the judgment, the judicial process runs smoothly. The participation in the judicial process is painless and enjoyable. There is less suspicion of improper conduct by the Judges and the outcomes are predicable, although the law is not the subject of mathematical precision.
PART II: THE CONSEQUENCES OF LACK OF CONVERSATION ON THE WRITING OF JUDGMENTS
That in nearly 54 years since independence, there has been no conversation on the writing of or quality of judgments has had profound effect on the Judiciary.
Since 1991, the conversations on the Judiciary have invariably focussed on the remuneration, appointments and independence of the Judges and more often than not on the delays in the delivery of judgments. There has never been a discussion on, perhaps the most important task in the quest for justice or the entire judicial process, how the judgments delivered by the Courts are written. It has been dangerously assumed that all Judges know how to write judgments. The Judgment by the three Justices has demonstrated that this is not the case. That the Judges took time to address this issue in the Judgment is recognition of the existence of challenges in the manner in which Judges write judgments.
The Supreme Court of Zambia
Its independence, integrity and professional standing have been constantly in doubt or in question. In his foreword to the book on writing judgments referred to above, The Right Honourable the Chief Justice Chan Sek Keong, Chief Justice of Singapore, said: This book provides a useful discussion on the techniques of judgment writing. It provides helpful suggestions on how to structure a judgment for clarity of exposition which should be particularly useful to new judges. Without a basic structure, a 5 See paragraphs 204-5 of the Judgment.
judgment may, for one, look disorganised and untidy and, as a result, give the appearance of it having been rushed for whatever reason. Amongst other things, this book also carefully expounds on the rationale for ensuring that judgments are well-crafted, and, in addition, provides useful comparative commentary. Through works like this book, judges may be inspired to improve or enhance a daily chore, which, in truth, is one of the most important judicial tasks that they have to discharge. (Emphasis mine) Some of the allegations of judicial corruption, incompetence and bias, although unfounded, have been made in certain cases largely because the Judge was sloppy in writing the judgment. The outcome is invariably a judgment lacking in structure and judicial reasoning. Some judgments are so poorly written that one does not require a law degree to identify the flaws. According to the analysis of Supreme Court in the Judgment, the High Court Judgment in the Savenda case is one such case. A well-structured and reasoned judgment is likely to be accepted even by the losing party. The losing party, although unhappy with the judgment, should not be in a position to identify failings in the judgment. There must be no basis or ground to fault the court. Every proposition of law must be substantiated. Every finding of fact must be supported by the evidence. The marriage between the law and the facts of the case must be seamless. A well-written judgment must have internal logic and consistency. It should be easy to read and understand. It should give anyone wishing to appeal difficulties in formulating sound grounds of appeal. On the other hand, a judgment that is poorly written, and although the conclusion may be sound and inevitable, based on the facts of the case and the law, it will invariably be the subject of appeal and will needlessly undermine the standing of the Judiciary. There are a number of cases, which have gone on appeal, which should not have, if the judgments had been properly written by the trial Court. To any Judge, conducting trial or hearing the parties is the easiest part in the exercise of her judicial authority. The most important and taxing task in the entire judicial process, which has been ignored, is the writing of judgments. Consequently, judgments are not given the respect and attention they deserve. Over the years judicial decisions have become increasingly unpredictable. Lawyers spend more time studying the judges as opposed to the law and the facts of the case. At times lawyers tailor their cases, not exclusively according to the law and facts of the case, but bearing in mind the intellectual capacity of the
Judge allocated the case. In other instances, lawyers simply discontinue cases, which have been allocated to certain judges, whose competence is questionable. Most Lawyers rarely apply themselves when they are appear-
ing before weak Judges. It is also not uncommon to find situations where both the losing and winning party do not understand the decision of the Court and have to move the trial court to interpret its own judgment. It is equally not rare to find judgments in which the Court’s findings of fact are incongruent to the conclusions reached by the Court. Similarly, and not surprising there are judgments, which are not supported by the evidence presented before Court. Based on the observations of the Supreme Court, judicial decisions must be informed by the law and the evidence presented by the parties before the Court. The evidence ought be thoroughly examined and tested. Often this is not the case. In certain cases, Judges start with the conclusions and work backwards by selecting evidence and quotations from decided cases to support the desired end. Where existing case law does not support the preferred conclusion, judgments are written without any authorities being cited. In other instances, they simply sidestep the difficult issues. All these shortcomings are present in some judgments delivered by Judges of the Superior Courts. In writing judgments, special attention must be directed to findings of fact. The findings must be based on cogent evidence, in view of the reluctance by the Supreme Court to disturb such findings on appeal. The law and the evidence should dictate or inform the judgment or conclusions of the Court. They (the law and the facts of the case) are the currents that should guide the Judge to the inevitable but just decision in the case. In most extreme situations, which can be described as bordering on criminality, some Judges have been known to manipulate the records of proceedings to support their desired outcome. This is done in view of the somewhat rigid position taken by the Supreme Court that it rarely disturbs findings of fact made by trial courts. The notion is that the trial Judge had the opportunity to see the witness being subjected to both examination in chief and cross examination,therefore better placed to determine the truth based on the demeanor of the witnesses. This position can only be fairly enforced where the judgment in issue is well structured and reasoned. The effects of this longstanding tradition of poorly written, unreasoned and unstructured judgments are many and have affected the entire Judiciary in its standing and operations.
to Court. However, since the converse is true, they choose “to try their luck.” The pursuit for justice should not be based on luck but the law and the facts of the case in issue. In any case, had it not been partly for the Supreme Court and ultimately the Supreme Court, the Plaintiff in the Savenda case would have succeeded, notwithstanding the flaws in the judgment. Some lawyers have been known to commence legal proceedings just to buy time for their clients, especially where a debt is involved. This is made possible by lack of serious examination of the pleadings during the status conference by the Judges. The status conference is never utilized for the intended purposes. The Judgment of the Supreme Court clearly shows that the Savenda case should not have gone to Court in the first place. Since it did, it should have ended in the High Court and not proceed on appeal to the Court of Appeal at the instance of the Defendant. Although the case touched on the concept of credit referencing, which the Judges described as “fairly alien to the Zambian banking and financial sector” this was a simple case of alleged negligence. The claims in the Savenda case are themselves odd. If the law had been properly followed, one could not rationally claim for:
(a) the sum of K192,500,000 as damages for loss of business;
(b) damages for loss of profit;
(c) damages for negligence;
(d) damages for injury to business reputation; and
(e) any other relief the Court may deem fit.
It is difficult to comprehend how one can claim for the sum of K192,500,000 as damages for loss of business and at the same time claim for loss of profit. Equally difficult to comprehend and distinguish is the claim for damages for negligence and damages for injury to business reputation. At the status conference, the flaws in the statement of claim ought to have been identified and addressed, if possible or have the entire case dismissed. As demonstrated in the Judgment, the Supreme Court was forced to go to the basics and address the distinction between liquidated and unliquidated damages as well as special and general damages. That the claim succeeded at the High Court level and partially survived before the Court of Appeal is a serious indictment on the integrity and intellectual capacity of the trial Court and the Court of Appeal. The Supreme Court has, however, demonstrated that there is hope. While one may succeed in her claims before the High Court and moderately triumph in the Court of Appeal, the same is not true before the Supreme Court. The issues will be scrutinized in the minutest of detail. Nevertheless, it should not be the role of the Supreme Court to remind the legal practitioners the law laid down in the case of Donogue v Stevenson. The Supreme Court should be dealing with cases that seek to push the boundaries of the law. It should be dealing with cases, which implore the Court to reverse previous decisions and for the Court to do so where necessary and to refuse to change the law in other instances and not to repeat what is largely a settled position of the law.
It is difficult to comprehend how one can claim for the sum of K192,500,000 as damages for loss of business and at the same time claim for loss of profit. Equally difficult to comprehend and distinguish is the claim for damages for negligence and damages for injury to business reputation. At the status conference, the flaws in the statement of claim ought to have been identified and addressed, if possible or have the entire case dismissed. As demonstrated in the Judgment, the Supreme Court was forced to go to the basics and address the distinction between liquidated and unliquidated damages as well as special and general damages.