IN THE SUPREMECOURT OF ZAMBIA APPEAL NO.

104/2013
HOLDEN AT LUSAKA

BETWEEN:
IN THE MATTER OF: SECTION 10 OF THE BANKING AND FINANCIAL
SERVICES ACT, CAP 387 OF THE LAWS OF
ZAMBIA
AND
IN THE MATTER OF: ACCESSFINANCIAL SERVICES LIMITED
AND
IN THE MATTER OF: ACCESSLEASING LIMITED
AND
IN THE MATTER OF: THE IMPLEMENTATION OF THE LIQUIDATION
SCHEDULE

CORAM: MAMBILIMA, CJ, HAMAUNDU AND KAOMA, JJS;

On the 1st October, 2015 and 3rd February, 2016.

For the Appellant: Mr. Nchima NCHITO, SC of Messrs. Nchito

and Nchito.
For the Respondent: Mr. John P. SANGWA,SC and Mr. K. CHENDA
of Messrs. Simeza Sangwa and Associates.

JUDGMENT

MAMBILIMA,CJ, delivered the Judgment of the Court.

CASES REFERRED TO-

1. ATTORNEY-GENERAL(NT) V. KEARNEY (1985) HCA 60;
2. ROSEMARY CHIBWE V. AUSTIN CHIBWE (2001) ZR 1;
3. WILSON MASAUSO ZULU V. AVONDALE HOUSING PROJECT
LIMITED (1982) ZR 172;
4. O'ROURKE V. DARBISHINE (1920) AC 581;
5. BUTTES GAS AND OIL CO. V. HAMMER (NO.3) (1980) 3 ALL ER 475;
6. DERBY & CO. LTD V. WELDON (NO.7) (1990) 3 ALL ER 161;
7. WILLIAMS V. QUEBRADA RAILWAY LAND AND COPPER CO. (1895) 2
CH 751;
8. FINERS (A FIRM) AND OTHERS V. MIRO (1991) 1 ALL ER 182;
9. BARCLAYS BANK PLC AND OTHERS V. EUSTICE AND OTHERS
(1995) 4 ALL ER 511;
10. GREENOUGHV. GASKELL (1833) 1 M & K 98; AND
affidavit in support of the mam matter. They contended that the

said documents contained information which was protected by legal

professional privilege as they were memoranda exchanged between

the Appellant and its in-house Counsel, in the course of Counsel

providing legal advice to the Appellant. The Application was filed

pursuant to Order 14A of the RULES OF THE SUPREME COURT1,

2
1999 EDITION supported by section 10 of the HIGH COURT ACT

and the ENGLISH LAW EXTENT OF APPLICATION ACT3.

The issues that were the subject of the application were

contained in the Respondent's affidavit in support of summons for

production for inspection of documents and in support of the

application to appoint a referee pursuant to Order 24 Rule 11(2) of

the RULES OF THE SUPREME COURT1 and Order 30 Rule lof

THE HIGH COURT RULES. Following the filing of the said affidavit,

the Appellant filed a notice of intention to raise a preliminary issue

on a point of law, pursuant to order 14A of the RULES OF THE

SUPREME COURT1, 1999 EDITION. In the said Notice, the

Appellant asked the Court below to confirm that the documents

labeled 'FMKAC 3' and 'FMKAC 4', in the Respondent's affidavit,

deposed to by a Mr. Faustin Mwenya KABWE,contained privileged

3
 11. BULLIVANT AND OTHERS V. THE ATTORNEY-GENERAL FOR
VICTORIA (ON BEHALF OF HER MAJESTY) (1901) AC 196.

LEGISLATION REFERED TO-

1. RULES OF THE SUPREME COURT, 1999 EDITION (WHITE BOOK);

2. HIGH COURT ACT, CHAPTER 27 OF THE LAWS OF ZAMBIA;
3. ENGLISH LAW EXTENT OF APPLICATION ACT, CHAPTER 11 OF THE
LAWS OF ZAMBIA; AND
4. HALSBURY'S LAWS OF ENGLAND, 4TH EDITION REISSUE VOL 37
PRACTICE AND PROCEDURE.

This is an appeal from the Ruling of the High Court, delivered

on 20th February, 2013. The application, that was the subject of the

Ruling, arose from the main matter, which related to the

implementation of a liquidation schedule of Access Financial

Services Limited and Access Leasing Limited by the Bank of

Zambia. In the said application, Access Financial Services Limited

and Access Leasing Limited were the Applicants while Bank of

Zambia was the Respondent. This appeal has been brought by the

Bank of Zambia. In this judgment, we will, thus, refer to the Bank

of Zambia as "the Appellant" and Access Financial Services

Limited and Access Leasing Limited as "the Respondents",

respectively.

The Appellant's application, before the lower Court, was that

certain documents should be expunged from the Respondent's

2
information protected by the legal professional privilege. 'FMKAC3'

and 'FMKAC 4' contained legal advice from the office of the

Assistant Bank Secretary (Legal Services) to the Deputy Governor-

Administration and the Acting Director-Human Resources,

respectively. The legal advice related to disciplinary charges that

had been brought against the Liquidation Manager of Access

Financial Services Limited and Access Leasing Limited, Mr.

Marshall MWANSOMPELO.These charges arose from an internal

audit report, generated by the Internal Audit Department of the

Appellant, which revealed a number of irregularities in the

liquidation process of Access Financial Services Limited and Access

Leasing Limited.

The learned trial Judge extracted the following excerpts from

'FMKAC3':

"In the course of Marshall's testimony, it became apparent to the

committee that there were problems with this case going forward in
view of the recent court challenges by Messrs. Kabwe and Chungu."

"Proceeding with the disciplinary hearings against Marshall in the

manner currently envisaged may actually hand the opposition the
"smoking gun" they are looking for to confirm their allegations that
Bank of Zambia mismanaged the liquidation of AFSLand ALL."

"This could result in unfavourable judgment against the Bank

sounding in colossal sums of money."

4
 "Any adverse findings against Marshal will confirm their allegations
and will compromise the Bank's defence in Court where we are
arguing that there was no mismanagement of the liquidation of
AFSLand ALL."

"It could also irreparably undermine what is otherwise a very

credible case of the Bank of Zambia having taken supervisory action
against AFSLand ALLfor the clear and well documented infractions
of the BFSA."

"The public could easily confuse the alleged mismanagement as

tainting even the takeover of the institutions, resulting in a
perception of the whole process being flawed and injustice being
exacted upon the shareholders."

"Further, should the Committee recommend the dismissal of

Marshall from the Bank's employment, which is a real possibility in
this case, there could be a real danger of Marshall turning into a
hostile witness against the Bank."

"The consequences of such a possibility are too ghastly to

contemplate as it would in a single stroke, spell disaster to the
Bank's case against AFSL and ALL, its former directors and
shareholders and in addition, cost the Bank an enormous amount of
money."

"In light of all these considerations, it is my settled view that

another way should be found to deal with Marshall. He has already
been removed as Liquidation Manager and this is a good first step."

"Next is to identify what went wrong with regard to our oversight of

the liquidation process and then take remedial measures for
posterity. "

"In any case, to single out Marshall as responsible for the state of
affairs at access would be an act of selective justice, given his
placement within a hierarchical reporting context."

'FMKAC 4' was advising, among other things, that the

procedure employed, in the disciplinary proceedings held against

5
Mr. MWANSOMPELO,
were improper and that the charges he was

facing should be dismissed.

After considering the evidence before him, the learned trial

Judge stated that 'FMKAC3' was advising the Bank not to pursue

disciplinary proceedings against an errant officer because he was

likely to open a Pandora's Box on the allegations of mismanagement

of the Respondent institutions. He said that, in other words,. the

memo was warning the Bank on the need to suppress evidence that

was likely to be harmful to the Bank and officers who fell within

Marshall's hierarchical reporting context.

The lower Court further stated that the requirements

regarding upholding the public interest should necessarily be

greater with respect to Counsel employed in government bodies,

especially those performing statutory functions. The Court added

that such officers represent the citizenry and a greater degree of

care is expected from them. He pointed out that this was not to say

that Counsel employed in government bodies should not enjoy the

protection and benefits of legal professional privilege but that they

must diligently guard against pressure to dispense dishonest

and/ or improper advice because they have a higher public interest

6
to serve. In this regard, the learned trial Judge cited the case of

ATTORNEY-GENERAL (NT) V. KEARNEytlJ, where the Court said

that the professional legal privilege protection, which is granted in

the public interest, to secure the due administration of justice, is

displaced when a higher public interest requires it.

The learned trial Judge then held that he had no hesitation in

finding that it would be contrary to public interest for a statutory

body to deliberately avoid disciplining an officer who has been

charged with serious offences because they are worried that he

would "spill the beans". He went on to say that, further, m

carrying out its statutory functions, it would be contrary to public

policy for a statutory body to be selective in which facts to present

in determining matters relevant to the execution of its statutory

functions.

The lower Court further found that a pnma facie case had

been established that the exhibits were brought into existence in

furtherance of an Improper purpose, namely advising the

Appellant's management to dispense with the disciplinary hearings

against Mr. MWANSOMPELO,not because he was blameless or

innocent, but because he was likely to reveal or divulge information

7
which would impact negatively against the Appellant and for the

purpose of suppressing information that might become available to

the Respondents and help them in their quest to prove that their

liquidation was mismanaged.

The Court, therefore, held that under the circumstances, it

would be contrary to public policy for the legal professional

privilege, which would have otherwise attached to 'FMKAC 3' and

'FMKAC4', to apply to communications of this kind. Accordingly,

the Court rejected the Appellant's claim for legal professional

privilege.

The Appellant has now appealed to this Court, against the

Ruling of the lower Court, advancing two grounds of appeal;

namely, that-

1. "The learned trial Judge erred in fact and in law in holding that
Marshall Mwansompelo was an errant officer in the absence of
evidence establishing the fact.

2. The Honourable Judge erred in law and fact in holding that the
exhibits 'FMKAC3' and 'FMKAC4' of Faustine Mwenya Kabwe's
further Affidavit in Support of Summons for Production of
Documents and in Support of the Application to appoint a Referee
dated 6th December, 2012 were not privileged and that they should
not be expunged from the Record of Proceedings."

In support of these grounds of appeal, the learned Counsel for

the Appellant, Mr. Nchima NCHITO, SC, filed written heads of

8
argument on which he relied entirely. He argued both grounds

together. In brief, Mr. NCHITO submitted that the lower Court

misdirected itself by proceeding to hold that the Appellant's

employee Mr. MWANSOMPELO,was an errant officer and guilty of

misconduct. Counsel contended that there was no evidence on

record to warrant the Court's finding. He submitted that the Bank

had not convicted Mr. MWANSOMPELO of any offence of

misconduct. To support his submissions, State Counsel cited the

case of ROSEMARY CHIBWE V. AUSTIN CHIBWE(2) where this

Court said that-

"Also both the Local Court and the Magistrate Court made certain
findings of fact, which were not supported by evidence. It is a
cardinal principle supported by a plethora of authorities that
Court's conclusions must be based on facts stated on record. In our
view this would have been a proper case for us to interfere with the
findings of both the Local Court and the Magistrate Court had it not
been for the fact that the Appellant in both these counts admitted
that she and her former husband could not live together and the
marriage had broken down irretrievably."

Counsel urged us to reverse what, according to him, was the

Judge's finding of fact that Mr. MWANSOMPELOwas an errant

officer. For this he referred us to the case of WILSON MASAUSO

ZULU V. AVONDALE HOUSING PROJECT LIMITED(3) where we

held that-

9
 "The Appellate Court will only reverse findings of fact made by a
trial Court if it is satisfied that the findings in question were either
perverse or made in the absence of any relevant evidence or upon a
misapprehension of facts."

Mr. NCHITO went on to submit that the lower Court erred

when it held that 'FMKAC 3' and 'FMKAC4' were not privileged

documents. Counsel, however, started by conceding that the

learned trial Judge rightly directed himself when he held that

Courts refrain from upholding a claim of privilege in or over

communications passing between a client and his advocates where

it is shown that the communications were made to pervade or

defeat the course of justice. He was, however, quick to add that

such assertions must be proved by clear evidence. In support of this

argument, he relied on the case of O'ROURKE V. DARBISHINE(4),

at pages 604, where Viscount FINLAYsaid that-

"The statement must be made in clear and definite terms, and there
must further be some prima facie evidence that it has some
foundation in fact. The Court will exercise its discretion, not merely
as to the terms in which the allegation is made, but also as to the
surrounding circumstances, for the purpose of seeing whether the
charge is made honestly and with sufficient probability of its truth
to make it right to disallow the privilege of professional
communications. "

Mr. NCHITOstated that the Respondent did not discharge the

burden laid down in the O'ROURKE(4) case and, accordingly, that

10
the learned trial Judge should have accepted the Appellant's

application to expunge the contested documents from the record.

Mr. NCHITO further submitted that the pieces of advice

contained in 'FMKAC 3' and 'FMKAC 4' were warnings against

proceeding with disciplinary proceedings against Mr.

MWANSOMPELOwhich had the potential to cause a backlash on

account of the fact that the charging process had been mishandled.

He contended that there was, therefore, no scheme by the Appellant

to deprive Messrs. Aaron CHUNGU and Faustine KABWEof their

rights under the law. That 'FMKAC3' and 'FMKAC4' were simply

pieces of advice to the Appellant against continuing unfair

disciplinary proceedings against its officer.

Counsel submitted that legal professional privilege is so

sacrosanct that it can only be waived in the most extreme

circumstances. In support of this argument, he referred us to the

case of BUTTES GAS AND OIL CO. V. HAMMER (NO. 3)(5), where

Lord DENNING,MR said the following:

"No privilege can be invoked so as to cover up fraud or iniquity. But

this principle must not be carried too far. No person faced with an
allegation of fraud could safely ask for legal advice. To do away with
the privilege at the discovery stage there must be strong evidence of
fraud such that the Court can say: 'This is such an obvious fraud

11
 that he should not be allowed to shelter behind the cloak of
privilege'"

Counsel further cited the case of DERBY & CO. LTD V.

WELDON (NO. 7)(61, where it was held that-

"where communications which would otherwise be within the

protection of legal professional privilege had been made in
furtherance of a fraudulent design, a person was not entitled to
assert legal professional privilege as a ground for refusing to disclose
those communications in circumstances where the party seeking
disclosure was able to establish a strong prima facie case of fraud.
However, the Court would be very slow to deprive a party of the
important protection of legal privilege on an interlocutory
application and would judge each case on the facts, striking a
balance between the important considerations on which legal
privilege was founded and the gravity of the charge of fraud that was
made."

Counsel went on to argue that the recent authorities in

England seem to suggest that the legal professional privilege will be

waived where there is fraud, dishonest conduct or indeed a crime.

He contended that disreputable conduct or mere failure to observe

ethics cannot be advanced to waive the privilege. That the

Respondents did not prove any crime, fraud or dishonest conduct.

In Response, the learned Counsel for the Respondent, Mr.

SANGWA,SC, and Mr. CHENDA,filed written heads of argument.

In opposing the first ground of appeal, the crux of Counsel's

submission was that there was evidence to support the learned trial

Judge's finding that Mr. MWANSOMPELOwas an errant officer.

12
They contended that whereas 'FMKAC 3' and 'FMKAC 4' are

respectively dated 11th October, 2012, and 29th October, 2012,

according to 'FMKAC5', Mr. MWANSOMPELOwas found guilty of

disciplinary offences as far back as June, 2011.

With regard to the second ground of appeal, Counsel argued

that communication which is helpful to effect fraud, underhand or

wrongful acts or other improper purpose is not and cannot be

protected by legal professional privilege. For this argument, Counsel

referred us to passages from a number of authorities. They cited

paragraph 581 of HALSBURY'S LAWS OF ENGLAND4, where the

learned authors have said the following:

"581. Communications for a fraudulent or illegal purpose.

Confidential communications between a client and his legal adviser
are not privileged if made for the purpose of committing a fraud or a
crime, or, a fortiori, when both are engaged in the commission of
same wrongful act. In order that the protection may obtain there
must be both professional confidence and professional employment.
There can be no professional confidence as to the disclosure of
communications of this nature and the furtherance of a fraud or
assistance given for the purpose of wrongfully evading the law is not
part of the duty of a legal adviser towards his client."

Counsel also cite the case of WILLIAMS V. QUEBRADA

RAILWAY LAND AND COPPER CO.(71 where KEKEWICH,J made

the following observations:

"This case is in my opinion, one of unusual gravity and importance.

It is of the highest importance, in the first place, that the rule as to

13
 privilege of production to an opponent of those communications
which pass between a litigant or an expectant or possible litigant
and his solicitor should not in any way be departed from. However
hardly the rule may operate in some cases, long experience has
shewn that it is essential to the due administration of justice that
the privilege should be upheld. On the other hand, where there is
anything of an underhand nature or approaching to fraud, especially
in commercial matters, where there should be the veriest good faith,
the whole transaction should be ripped up and disclosed in all its
nakedness to the light of the Court."

Counsel also cited the case of FINERS (A FIRM) AND

OTHERS V. MIRO(Si, where DILLONLJ, said in part that-

"It is well established, however, that that privilege is lost by the

criminal or fraudulent intent of the client, whether or not the
solicitor was aware of that intent ...."

Lastly, Counsel referred us to the case of BARCLAYS BANK

PLC AND OTHERS V. EUSTICE AND OTHERS(9), where

SCHIEMANN,LJ, said that-

"It will be noted that in the last sentence cited Bingham W referred
to the 'absence of iniquity'. In so doing he was recognizing the
effect of a line of cases which have established that advice sought or
given for the purpose of effecting iniquity is not privileged."

Counsel went on to submit that 'FMKAC3' went beyond the

duty of a legal adviser to a client as it amounted to counseling the

Appellant to subvert the administration of justice by:

(a)preventing the possibility of the aggrieved stakeholders of AFSLand

ALL from discovering the truth about the mismanagement of the
liquidation process; and
(b) ensuring that the erring officer will not be tempted to give an
unfavourable testimony against the BOZ in the legal proceedings
being contested by the stakeholders of AFSLand ALL.

14
 Counsel argued that in the face of this evidence, a prima facie

case of improper and wrongful purpose was established in respect

of 'FMKAC 3' to take it out of the realm of legal professional

privilege.

With regard to 'FMKAC 4', Counsel submitted that this

document simply echoed the sentiments of 'FMKAC3' in terms of

letting a wrongdoer go free without atoning for his actions in respect

of the mismanagement of the liquidation of the Respondents.

We have carefully considered the evidence on the record of

appeal, the heads of argument filed by Counsel and the judgment

appealed against. In our view, the legal issues raised by the two

grounds of appeal, respectively, are the following:

1. whether the lower Court held that Mr. Marshall Mwansompelo was
an errant officer and that he was guilty of misconduct; and
2. whether the documents "FMKAC3" and FMKAC4" were protected
by legal professional privilege.

The gist of the submissions advanced by Counsel for the

Appellant, in support of the first ground of appeal, is that the lower

Court misdirected itself when it held that Mr. MWANSOMPELO

was

an errant officer and that he was guilty of misconduct. Counsel has

argued that the Court was wrong when it made this finding because

there was no evidence to support the said finding.

15
 We have carefully studied the portion of the learned trial

Judge's Ruling which has been contested by the Appellant m the

first ground of appeal. It states as follows:-

"In short this memo was advising the Bank not to pursue
disciplinary proceedings against an errant officer because he was
likely to open a Pandora's Box on the allegations of mismanagement
of the Applicant institutions. In other words the memo was warning
the Bank on the need to suppress evidence that was likely to be
harmful to the Bank and to officers who fell within Marshal's
hierarchical reporting context. "(Emphasis by underlining ours)

Clearly, in our view, the above extract did not contain any

finding or holding by the lower Court on the guilt or innocence of

Mr. MWANSOMPELOfor the disciplinary charges he stood charged

with. A cursory study of the Ruling appealed against establishes

that the said extract came right after the learned trial Judge had

reproduced some portions of 'FMKAC3'. In our opinion, the Court

simply re-stated, in its own words, the contents of 'FMKAC3'. The

said MWANSOMPELOwas facing disciplinary proceedings and

'FMKAC3'suggested that "... another way should be found to deal

with Marshall. He has already been removed as Liquidation

Manager and this is a good first step." This is further evident

from the words we have underlined in the extract of the learned

trial Judge's Ruling above. We do not see any ground upon which

16
we can fault the learned trial Judge for the manner in which he re-

stated the contents of that document. 'FMKAC 3' also stated,

among other things, that-

"Further, should the Committee recommend the dismissal of

Marshal from the Bank's employment, which is a real possibility in
this case, there could be a real danger of Marshal turning into a
hostile witness against the Bank." (Emphasis by underlining ours)

In our view, these words show that the Office of the Assistant

Bank Secretary was advising the Appellant to refrain from

dismissing an officer who stood charged with disciplinary offences

for which, according to the Assistant Bank Secretary, there was a

real possibility that he would be dismissed. In any case, the guilt or

innocence of Mr. MWANSOMPELOfor the disciplinary charges was

immaterial to the determination of the issue before the lower Court.

The issue before the lower Court was whether 'FMKAC 3' and

'FMKAC4' were protected by the legal professional privilege.

We, therefore, cannot blame the Judge in the Court below for

the manner in which he restated the contents of 'FMKAC 3'.

Accordingly, we find no merit in the first ground of appeal.

On the second ground of appeal, Mr. NCHITOhas faulted the

lower Court for holding that the documents 'FMKAC3' and 'FMKAC

4' were not protected by the legal professional privilege. He has

17
argued, among other things, that the Respondent did not adduce

clear evidence to warrant the displacement of the privilege. He has

further argued that legal professional privilege is so sacrosanct that

it will only be waived in the most extreme circumstances.

The gist of the response on behalf of the Respondent is that

legal professional privilege has limits. Counsel has submitted that it

is trite law that communication which is helpful to effect or stifle

fraud, underhand or wrongful acts, or other improper purposes IS

not and cannot be protected by the privilege.

We have considered a number of authorities on legal

professional privilege. Legal professional privilege is an important

privilege accorded, in the public interest, to protect communication

between a lawyer and his or her client from being disclosed without

the authority of the client. The privilege is intended to encourage

the client to feel free to give full instructions to his or her lawyer

without the fear that the information contained In those

instructions may prejudice the client in future. In an old English

case of GREENOUGH V. GASKELL11O), Lord BROUGHAMstated the

rationale for legal professional privilege in the followingterms:

18
• •

"The foundation of this rule is not difficult to discover. It is not (as

has sometimes been said) on account of any particular importance
which the law attributes to the business of legal professors, or any
particular disposition to afford them protection .... But it is out of
regard to the interests of justice, which cannot be upholden, and to
the administration of justice, which cannot go on without the aid of
men skilled in jurisprudence, in the practice of the Courts, and in
those matters affecting rights and obligations which form the
subject of all judicial proceedings. If the privilege did not exist at
all, everyone would be thrown upon his own legal resources,
deprived of professional assistance, a man would not venture to
consult any skillful person, or would only dare tell his counselor half
his case."

The importance of the legal professional privilege to the

administration of justice is, therefore, undisputable. Of course, as

Counsel has rightly conceded, legal professional privilege is not

absolute. It can be displaced In circumstances that have been

concisely settled by case law. In the case of BULLIVANT AND

OTHERS V. THE ATTORNEY-GENERAL FOR VICTORIA (ON

BEHALF OF HER MAJESTy)(ll), Earl of Halsbury, LC provided the

following extensive guidance on the limitations to legal professional

privilege when he said the following:

"I think the broad proposition may be very simply stated: for the
perfect administration of justice, and for the protection of the
confidence which exists between a solicitor and his client, it has
been established as a principle of public policy that those
confidential communications shall not be subject to production. But
to that, of course, this limitation has been put, and justly put, that
no court can be called upon to protect communications which are in
themselves parts of a criminal or unlawful proceeding.... The line
which the courts have hitherto taken, and 1 hope will preserve, is
this- that in order to displace the prima facie right of silence by a
witness who has been put in the relation of professional confidence
19
• •

with his client, before that confidence can be broken you must have
some definite charge either by way of allegation or affidavit or what
not. I do not at present go into the modes by which that can be
made out, but there must be some definite charge of something
which displaces the privilege."

Similarly, the learned authors of HALSBURY'S LAWS OF

ENGLAND VOLUME 37 (REISSUE) have said, at paragraph 581,

that confidential communications between a client and his legal

adviser are not privileged if made for the purpose of committing a

fraud or crime, or when both are engaged in the commission of

some wrongful act.

The question, therefore, remains that did any of the limitations

on legal professional privilege exist to warrant the decision of the

learned trial Judge that the documents in question were not

protected by the privilege? Counsel for the Appellant has

maintained that there was no ground established to warrant the

displacement of the privilege. He submitted that legal professional

privilege cannot be lightly displaced because it is a sacrosanct

privilege. For this he has referred us to a portion in the case of

BUTTES GAS AND OIL CO. V. HAMMER (NO. 3)151, which we have

already reproduced in this judgment.

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• •

We have already stated in this judgment that although legal

professional privilege is sacrosanct it is not absolute. So the

question is, what test should be met before the privilege can be

displaced? In the case of DERBY & CO LTD V. WELDON (NO. 7)16)

the Court outlined the test for the displacement of the privilege

when it said that-

"As I have said, Counsel's primary submission was that the

authorities ... showed that unless the relevant facts are admitted or
beyond dispute ... there must be positive evidence sufficient to
satisfy the court on the balance of probabilities that an allegation of
fraud will probably succeed. I think this puts the test too high. In all
the cases I have cited what is stressed is that every case must be
judged on its own facts. In any given case, the court must weigh, on
one hand, the important considerations of public policy on which
legal professional privilege is founded (the necessity that the citizen
should be able to make a clean breast to his legal adviser ...) and, on
the other, the gravity of the charge of fraud or dishonesty that is
made."

Clearly, the test for the displacement of the privilege is not

that there must be evidence to satisfy the Court on a balance of

probabilities that the alleged fraud, criminality or other wrongful act

will probably succeed. That test has been described as being too

high. The Court must consider each case on its facts by weighing

the public policy justifications for the privilege and the gravity of the

alleged fraud, criminality or other wrongdoing.

21
•

Applying these principles of law to the instant case, we are of

the firm view that the learned trial Judge rightly directed himself

when he held that the documents 'FMKAC3' and 'FMKAC4' were

not protected by legal professional privilege. A cursory scrutiny of

the said documents clearly establishes that they contained legal

advice, from the Assistant Bank Secretaries, to the Appellant on

how to conceal evidence that would potentially be useful to the

Respondents m confirming their allegation that the Appellant had

mismanaged the liquidation of the Respondent companies. We,

therefore, agree with the finding by the lower Court that the

disputed documents were brought into existence in furtherance of

an improper purpose. The learned trial Judge's finding was

particularly apt in light of the followingparagraphs of 'FMKAC3':

"Proceeding with the disciplinary hearings against Marshall in the

manner currently envisaged may actually hand the opposition the
"smoking gun" they are looking for to confirm their allegations that
Bank of Zambia mismanaged the liquidation of AFSLand ALL."

"Any adverse findings against Marshal will confirm their allegations

and will compromise the Bank's defence in Court where we are
arguing that there was no mismanagement of the liquidation of
AFSLand ALL."

"Further, should the Committee recommend the dismissal of

Marshal from the Bank's employment, which is a real possibility in
this case, there could be a real danger of Marshal turning into a
hostile witness against the Bank."

22
• • •

In our view, the public policy considerations for the grant of

legal professional privilege have been outweighed in this case by the

gravity of the wrongful act of advising the Appellant to conceal

evidence of mismanagement of the liquidation process of the

Respondent companies. It would not be in the public interest to

allow the Appellant, a public institution, to purposely refrain from

disciplining an officer because they do not want the officer to

adduce evidence which would assist the Respondents in proving

their allegation of mismanagement of the liquidation process.

Accordingly, the second ground of appeal, too, must fail.

This appeal, having failed on both grounds, we dismiss it with

costs to be taxed in default of agreement.

I.e. Mambilima
CHIEF JUSTICE

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SUPREME COURT JUDGE

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SUPREME COURT JUDGE

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