PROTECTION OF THIRD PARTY RIGHTS

The establishment of the National Compensation Tribunal has aroused hopes and expectations in the minds of eligible claimants that they will get a redress which we'll put them in a state of restitutio in integrum i.e. in setting the sum of money to be given for reparation of damage the Tribunal should as nearly as possible get at that sum of money which will put the claimant who has been injured or who has suffered, in the same position as he/she would have been in if he/she had not sustained the wrong for which he/she is now getting compensation or reparation. 

The legal and constitutional position is that the Tribunal has been given authority to entertain claims with respect to alleged criminal and civil liability of the MCP Government up to 17th May, 1994. This authority goes a step beyond ordinary court process of inquiry and determination of a claim. The Tribunal has all powers of investigation necessary to establish the facts of any case before it. 

Where a third party disputes a claim and has an interest in money or property that is the subject of a claim before the Tribunal, the party shall be given adequate notice; that party shall be entitled to legal representation; and if the Chairman of the Tribunal is satisfied that the person is of insufficient means to retain legal counsel, legal assistance shall be provided at the expense of the State. This is a constitutional right conferred to a third party under Section 141 of the Constitution. There is however no definition of adequate notice. A common example is the claim for return of landed property which a third party might have "acquired" while the claimant was placed under forfeiture or had fled into exile. Under Rule 12 of the Tribunal Procedure Rules where a claimant seeks restitution of specific property the Tribunal shall within a reasonable time notify the current title holder of the property of the existence of the claim and of his/her rights under these Rules. A third party who disputes a claim for restitution and who has sufficient interest in the property which is the subject of the claim shall notify the Tribunal of his or her interest and if the Tribunal finds the intervention or claim to be warranted, the tribunal shall join that party to the proceedings. A party joined to the proceedings shall be entitled to all notices of the proceedings and be given the same opportunity to be heard as claimant. 

It is clear from this provision that in a claim for restitution of property the Tribunal should ensure protection of third party rights particularly if they are individuals who acquired the property for value without notice. However, confusion exists in Rule 21 of the Tribunal Procedure Rules which states that the Tribunal may, in respect of any claim, recommend a non-monetary award, including the restitution of property, and shall within seven days communicate its recommendation to the appropriate party. The question is whether the Tribunal makes orders or recommendations. It is clear from Rule 21(2) that the Tribunal makes Orders. This sub-rule states that an order under this rule shall have the same force and effect as an order of the High Court, and shall be enforced in the same manner. If the Tribunal was mandated to make recommendations, Rule 21(2) would have been contradictory. It is common knowledge that a recommendation is not a decision for enforcement.  As a matter of practice it must be made clear beyond reasonable doubt that the Tribunal has power to make restriction orders.  As a matter of policy, The Tribunal would like to make such orders against Government bodies including statutory bodies which took advantage of the then Forfeiture Act and acquired forfeited landed assets. Equity clearly demands that no person should benefit from his/her own wrong. In the same vein the Tribunal will unlikely disturb rights of an individual person who without notice but for value purchased forfeited property. Therefore Statutory bodies should watch their investment on property that was once forfeited in the past. 

Lastly, under Rule 20(1)(d) the Tribunal shall not entertain requests to make payments to third parties. Sometimes claimants have obtained credit facilities from schools and/or hospitals and indicated to such institutions that the Tribunal shall settle such bills. This is wrong and prohibited under the law. Schools and/or hospitals who extend such credit facilities do so at their own risk i.e. there is no third party protection of a right to get paid for service rendered to a claimant. 

Justice Chimasula Phiri
CHAIRMAN - NATIONAL COMPENSATION TRIBUNAL