high court of the state of zambia the attorney …
TRANSCRIPT
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HIGH COURT OF THE STATE OF ZAMBIA
THE ATTORNEY GENERAL OF ZAMBIA FOR AND ON BEHALF OF THE REPUBLIC OF ZAMBIA
Applicant
– Against –
MEER CARE AND DESAI (A FIRM) AND OTHERS Defendants
No.
AMICUS‐BRIEF FOR THE ATTORNEY GENERAL
For Transparency International Zambia (TI-Z) Stand No. 3838, Kwacha Road Olympia Park Lusaka, Zambia
Muna Ndulo
Professor of Law
Cornell Law School
Ithaca, NY 14853
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CONTENTS
PRELIMINARY STATEMENT ................................................................................................... 3
QUESTIONS PRESENTED ......................................................................................................... 3
STATEMENT OF FACTS ............................................................................................................ 4
STATEMENT OF THE PRESENT CASE .................................................................................. 5
STATUTE INVOLVED ................................................................................................................ 6
1. Reciprocity of Recognition of Foreign Judgments in British and Zambian Courts .............. 8
2. Conditions for Registration .......................................................................................................... 9
APPLICANTS’ ARGUMENT I ................................................................................................. 12
APPLICANTS’ ARGUMENT II ............................................................................................... 15
APPLICANTS’ ARGUMENT III .............................................................................................. 21
APPLICANTS’ ARGUMENT IV .............................................................................................. 23
APPLICANTS’ ARGUMENT V ............................................................................................... 24
CONCLUSION ........................................................................................................................... 26
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PRELIMINARY STATEMENT
On behalf of the people of Zambia, the Attorney General of Zambia brought a civil
claim against Meer Care & Desai and others including: Fredrick Chiluba, Xanvier
Chungu, Stella Chibanda, Atan Shansonga, Aaron Chungu, Faustin Kabwe, Iren
Kabwe, Francis Kaunda, Boutique Basile, Raphael Soriano and NEBRASKA
(hereinafter referred to as “defendants”) to recover sums of money unlawfully taken
from the Government of Zambia. The claim was brought before the London High
Court (hereinafter referred to as “the London High Court”). The London High Court
found the Defendants to have misappropriated funds belonging to the Zambian
Government. On 4 May 2007, the London High Court entered a judgment against the
defendants for more than $58 million. The judgment ordered Defendants to pay back
to the Government of Zambia funds unlawfully taken from the Government’s coffers.
On June 13, 2007 the Attorney General of Zambia obtained an order in the Zambian
High Court registering the London High Court decision under the Foreign Judgments
(Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia. The defendants
(applicants in this case) have applied to the High Court to have the order set aside.
The Attorney‐General seeks the dismissal of the defendants’ application.
QUESTIONS PRESENTED
To enforce the London High Court Judgment in Zambia, the judgment needs to be
registered under the provisions of the Foreign Judgments (Reciprocal Enforcement)
Act, Chapter 76 of the Laws of Zambia by the High Court of Zambia. The questions
presented for the registration of the judgment are the following:
(a) Is there a reciprocal recognition of foreign judgments between British and
Zambian courts? The answer to this is in the affirmative: reciprocity between
the courts of England and Wales and those of Zambia is well established;
(b) If the answer to question one is yes, have the conditions for registration of
foreign judgments under the Foreign Judgments (Reciprocal Enforcement)
Act, Chapter 76 of the Laws of Zambia been fulfilled? The answer to this
question is in the affirmative too. The conditions for the registration of the
judgment have been fully satisfied.
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STATEMENT OF FACTS
STATEMENT OF THE LONDON CASE
The Attorney General of Zambia on behalf of the People of Zambia brought a claim
against Meer Care and Desai (a firm) and others including Frederick Chiluba, Xanvier
Chungu, Stella Chibanda, Atan Shansonga, Aaron Chungu, Faustin Kabwe, Francis
Kaunda, Boutique Basile, Raphael Soriano and NEBRASKA (herein after referred to as
defendants) to recover sums of money unlawfully taken from the Government of
Zambia. The claim was brought before the London High Court of Justice Chancery
Division (hereinafter referred to as the London High Court). The defendants are
alleged to have engaged in a conspiracy to misappropriate well over $58 million
Zambian Government funds and to have used the funds for personal expenditures.
The Attorney General of Zambia proved that the entirety of this money was stolen
from the Republic of Zambia via a Zamtrop account held in the Zambia National
Commercial Bank, London Branch, in the UK, by the Zambia Security Services (ZSS).
On 4 May 2007 after a five month trial, J. Peter Smith delivered the judgment of the
Court by which he found each of the judgment debtors to this application liable in
damages to the Republic of Zambia on the following grounds: Fredrick Chiluba,
Xanvier Chungu and Stella Chibanda (conspiracy to defraud and breach of fiduciary
duty); Fautine Kabwe and Aaron Chungu (Conspiracy to defraud and dishonest
assistance). All of the above defendants were with the exception of Aaron Chungu,
found liable in respect of conspiracies commonly known as the Zamrop conspiracy
and BK facility conspiracy. Aron Chungu was found liable in respect of the Zamrop
conspiracy alone. Judgment and orders made by the High Court of England and
Wales on 4 May 2007 were registered in the High Court of Zambia on 13 June 2007.
Following a three day hearing when Judge Smith heard further arguments on,
amongst other issues, credit for recoveries, interest and costs on 29 June 2007 Justice
Smith delivered a further judgment related order. The judgment order made by
Justice Smith on June 29 2007 were produced and submitted to the High Court of
Zambia. In this order the judgment sums which each of the judgment debtors is liable
to the Republic of Zambia were thereby finalized. In order to be enforceable in Zambia
the London High Court decision must be registered under the provisions of the
Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the laws of Zambia
by the High Court of Zambia. There are valuable assets in Zambia held by the
defendants or on their behalf against which enforcement could ensue if the London
judgment is registered and enforced.
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STATEMENT OF THE PRESENT CASE
The Attorney‐General Applied to the High Court of Zambia to register the judgment of
the London High Court of Justice Chancery Division obtained on the 4th of May 2007 in
the United Kingdom pursuant to the Foreign Judgment (Reciprocal Enforcement) Act,
Chapter 75 of the Laws of Zambia. The London judgment is against Meer Care & Desai,
and others including former President Fredrick Chiluba, Faustin Kabwe, Aaron Chungu,
Francis Kaunda, Xanvier Chungu, and Stella Chibanda. As noted above, the London
High Court in a civil trial found the defendants to have conspired to misappropriate
funds belonging to the Zambian Government and ordered them to pay back the money
to the Government of Zambia and to restitute the money they had unlawfully taken
from government coffers. On 13th of June 2007, the High Court of Zambia granted an
order in favor of the Attorney‐General registering the judgment. The defendants in the
London High Court judgment, who are the applicants in this case, have applied to
Zambian High Court to have the order set aside on the following grounds: (a) that the
judgment is not a judgment to which the Foreign Judgment (Reciprocal Enforcement)
Act, Chapter 76 of the Laws of Zambia applies; (b) that the London High Court had no
jurisdiction over Chiluba, Faustin Kabwe and Stella Chibanda, and Aaron Chungu; (c)
that the judgment was obtained by fraud; (d) that the main issue which formed the
basis of the judgment that was registered (the London High Court Judgment) was
adjudicated upon in Mazoka & others v. Levy Mwanawasa and others ( SSZ/EP/01/03/2002;
(e) that enforcement of the judgment would be contrary to public policy and natural
justice and a violation of article 43 of the Zambian Constitution; and (f) that Chiluba
was protected from legal proceedings by article 43 of the Constitution of Zambia.
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STATUTE INVOLVED
THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT, CHAPTER
76 OF THE LAWS OF ZAMBIA. The Foreign Judgments (Reciprocal Enforcement) Act in section 3(2) provides that any judgment of a superior court of a foreign country to which this
Act extends, other than a judgment of such a court given on appeal from a
court which is not a superior court, shall be a judgment to which this Act
applies, if:
(a) the judgment is final and conclusive as between the parties thereto;
and
(b) there is payable there under a sum of money, not being a sum
payable in respect of taxes or other charges of a like nature or in
respect of a fine or other penalty; and
(c) it is given after the commencement of the order directing that
this Part shall extend to that foreign country.
Pursuant to section 2(3), a judgment shall be deemed to be final and conclusive
notwithstanding that an appeal may be pending against it, or that it may still be subject
to appeal, in the courts of the country of the original court. In this case this is not an
issue as there is no appeal pending to the judgment for which registration was applied.
The application for registration was within six years after the date of the foreign
judgment, as required by Section 4(1) of the Act. The only grounds provided in the Act
upon which registration may be denied are if the foreign judgment (a) has been wholly
satisfied; or (b) could not be enforced by execution in the country of the original court.
Neither of these grounds is applicable in the case before the court.
The Act in section 6(1) provides grounds upon which a registration of a judgment
may be set aside. These are: (a) where the judgment is not a judgment to which this Act
applies or where the judgment was registered in contravention of the provisions of the
Act; (b) where the courts of the country of the original court had no jurisdiction in the
circumstances of the case; (c) where the judgment debtor, being the defendant in the
proceedings in the original court, did not (notwithstanding that process may have been
duly served on him in accordance with the law of the country of the original court)
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receive notice of those proceedings in sufficient time to enable him to defend the
proceedings and did not appear; (d) where the judgment was obtained by fraud; (e) the
enforcement of the judgment would be contrary to public policy in the Republic; (f)
where the rights under the judgment are not vested in the person by whom the
application for registration was made; or (g) where the registering court is satisfied that
the matter in dispute in the proceedings in the original court had, previous to the date
of the judgment in the original court, been the subject of a final and conclusive
judgment by a court having jurisdiction in the matter. None of these grounds for setting
aside the London Court Judgment are applicable in this case.
The Act provides in section 6(2) that for the purposes of section 6, the courts of the
country of the original court shall, subject to the provisions of subsection (3), be deemed
to have had jurisdiction: (a) in the case of a judgment given in an action in personam (i) if
the judgment debtor, being a defendant in the original court, submitted to the
jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for
the purpose of protecting or obtaining the release of property seized, or threatened with
seizure, in the proceedings or of contesting the jurisdiction of that court; or (ii) if the
judgment debtor was plaintiff in, or counter‐claimed in, the proceedings in the original
court; or (iii) if the judgment debtor, being a defendant in the original court, had before
the commencement of the proceedings agreed, in respect of the subject‐matter of the
proceedings, to submit to the jurisdiction of that court or of the courts of the country of
that court; or (iv) if the judgment debtor, being a defendant in the original court, was at
the time when the proceedings were instituted resident in, or being a body corporate
had its principal place of business in, the country of that court; or (v) if the judgment
debtor, being a defendant in the original court, had an office or place of business in the
country of that court and the proceedings in that court were in respect of a transaction
effected through or at that office or place.
Therefore it follows that the only way the defendants can have the registration of
this judgment set aside is to demonstrate that the court which pronounced the
judgment (i.e. the London High Court) did not have jurisdiction to pronounce it,
either because it exceeded its jurisdiction or because the defendants were not subject
to that jurisdiction or that the judgment was obtained by the fraud of the plaintiff.
None of the exceptions outlined above are applicable to this case.
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1. Reciprocity of Recognition of Foreign Judgments in British and Zambian Courts
In Zambia a foreign judgment may be enforced by applying the rules of the common
law or by invoking the Foreign Judgments (Reciprocal Enforcement) Act Chapter 76 of
the Laws of Zambia. The preamble and Article 3 (1) of the Foreign Judgments
(Reciprocal Enforcement) Act and the common law both specify that recognition and
enforcement of foreign judgments is subject to reciprocity. Enforcement of the London
High Court Judgment by Zambian courts is subject to reciprocity in British courts. The
law on the recognition and enforcement of foreign judgments in England and Wales
depends upon the country where the original decision was rendered. In the case of
decisions rendered by Zambian courts the applicable law is the Administration of
Justice Act of 1920. Under the Administration of Justice Act 1920, judgments obtained in
the superior courts of specified foreign countries may be registered and enforced in the
United Kingdom.
The common law principles are similar to the Statute law and have been recognized
by English courts and the Supreme Court of Zambia as requiring reciprocity between
English courts and Zambian courts. In Adams and Others v. Cape Industries PLC. And
Another ( (1990) 2 Weekly Law Reports, 657, 678 J Scott observed: “ I can conveniently
start by identifying the basis on which English courts will enforce the in personam judgments of
foreign courts. In Russell v. Smyth (1842) 9 M & W 810, 818, Lord Abinger C.B said: “Foreign
judgments are enforced in these courts because the parties liable are bound in duty to satisfy
them.” Parker B. expressed the same principle, at p. 819: “where the court of a foreign country
imposes a duty to pay a sum certain, there arises an obligation to pay, which may be enforced in
this country” In Goddard v. Gray (1870) L.R. 6 Q.B. 139, 148‐149, Blackburn J. Said: “But in
England and in those states which are governed by the common law, such judgments are
enforced, not by virtue of any treaty, nor by virtue of any statute, but upon a principle very well
stated by Parker B. Williams v. Jones (1845) 13 M.& W. 628. 633 “ where a court of competent
jurisdiction has adjudicated a certain sum to be due from one person to another, a legal
obligation arises to pay that sum, on which an action of debt to enforce the judgment may be
maintained. It is in this way that the judgments of foreign and colonial courts are supported and
enforced” As Blackburn emphasizes the common law is sufficient to establish reciprocity
and the obligation to enforce judgments between Zambia and English Courts. He states
without any qualification that “no treaty nor statute” is required to establish reciprocity
between common law jurisdictions. In the recent case of Zanetta Nyendaw v. Kenneth
Paul Spooner, (SCZ, Judgment No. 20 of 2010 Appeal No. 21/2009., the Zambian
Supreme Court has settled the matter and has put the reciprocity of judgments between
the United Kingdom and Zambia beyond doubt. In a unanimous decision Chibomba,
J.S. reading the judgment of the Supreme Court stated: “We have examined the provisions
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of the Zambian Act. The Position in England, in accordance with Cheshire and North, is that a
judgment obtained from another Commonwealth Country maybe registered for the purpose of
enforcement if the registering court thinks just and convenient. The learned authors also state
that registration is not a right but in the discretion of the registering court and that a judgment
cannot be registered unless it is one under which a sum of money is payable. The learned authors
also state that registration is not allowed if the original Court acted without jurisdiction or if the
judgment debtor was not served or did not appear in the original proceedings. We agree with
Cheshire and North that the above applies to Zambia which is also a member of the
Commonwealth and also applies the common law principles.” Hence, there is an already well
established reciprocal recognition of foreign judgments between British and Zambian
Courts. Zambian courts would expect English courts to enforce their judgments.
Zambian courts based on the principle of reciprocity contained in both the Foreign
Judgments (Reciprocal Enforcement) Act and the common law should enforce English
judgments.
The Zambian Foreign Judgments (Reciprocal Enforcement) Act, like its English
equivalent, and the common law are based on two principles: The principle of full
respect for another contracting state’s judgments and the principle of swift and simple
procedure for recognition and enforcement of another state’s judgment. The principle of
full respect for another state’s judgment implies that these judgments should be fully
recognized and enforceable. It has been interpreted as meaning that a judgment should
be attributed the authority and effectiveness which it has in the state in which it was
given. The state where the registration is applied for has no jurisdiction to vary the
original judgment. Commonwealth authorities support this view. A case in point is the
Australian case of Bell v. Bell (1954) 73 WN (NSW) p. 7.
2. Conditions for Registration
Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the laws of Zambia
is designed to promote judicial cooperation among states and makes provision for the
enforcement in Zambia of judgments given in foreign countries which accord reciprocal
treatment to judgments given in Zambia by Zambian courts. It facilitates the
enforcement of foreign court judgments upon proper registration in the High Court of
Zambia. Pursuant to this Act, The United Kingdom and Zambia have reciprocal
arrangements with respect to judgments given in any civil proceeding or a judgment or
order given or made by criminal proceeding for the payment of a sum of money in
respect of compensation or damages to an injured party (article 2). A foreign judgment
that is registered in Zambia acquires the same status as a locally rendered judgment. In
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Williams v. Jones (1845) 13 M & W 628, 635 153 ER 262, 265, Parker B. defined the legal
principle behind the enforcement of foreign judgments as follows: “The true principle is,
that where a court of competent jurisdiction has adjudicated a certain sum to be due from one
person to another, a legal obligation arises to pay that sum on which an action of debt to enforce
the judgment maybe maintained.” This principle had earlier been annunciated by Lord
Abinger C.B. in Russell v. Smyth (1842) 9 M & W 810, 818. The same principle is followed
in Godard v. Gray (1870) L.R. 6 Q.B. 139, 147 and was put beyond dispute when
Bluckburn J. in Schibsby v. Westnholz (1870) L.R. 6 Q.B. 155, 159, stated: “We think
that…the true principles on which the judgments of foreign tribunals are enforced in England
is…that the judgment of a court of competent jurisdiction over the defendant imposes a duty or
obligation on the defendant to pay the sum for which judgment is given, which the courts in this
country are bound to enforce; and anything which negatives that duty, or forms a legal excuse
for not performing it, is a defense to the action.” According to the Foreign Judgments
(Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia once reciprocity is
established for a foreign decision to be registered in Zambia it has to fulfill the
following conditions:
(a) Decision must be final
In order for a foreign judgment to be enforceable in Zambia, it must be pronounced
by a superior court of the country of the original court. There can be no doubt that the
London High Court is a Superior Court. A foreign judgment must be final and
conclusive in the originating jurisdiction. According to Section 3(3) of the Foreign
Judgments (Reciprocal Enforcement) Act, a judgment is deemed conclusive even if an
appeal might be pending. The London High Court judgment was final and there are no
appeals pending and the defendants have exhausted all avenues of appeal. Their
application for leave to appeal to the United Kingdom Court of Appeal was dismissed.
In Beatty v. Beatty (1924) 1K.B. 807. 815, answering the question as to what is a final
judgment, L.J. sitting in the Court of Appeal answered the question in the following
terms: “The principle which we have to apply was stated by Lord Herschell in Nouvion v.
Freeman 15 A.P. 1,9: “I think that in order to establish that such a judgment has been
pronounced” [that is a final judgment which this court can enforce], “it must be shown that in
the Court by which it was pronounced it conclusively, finally, and forever established the
existence of the debt of which it is sought to be made conclusive evidence in this country, so as to
make it res judicata between the parties. If it is not conclusive in the same court which
pronounced it, so that notwithstanding such a judgment the existence of the debt may between
the same parties be afterwards contested in that court, and, upon proper proceedings being taken
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and such contest being adjudicated upon, it may be declared that there existed no obligation to
pay the debt at all, then I do not think that a judgment which is of that character can be regarded
as finally and conclusively evidencing the debt, and so entitling the person who has obtained the
judgment to claim a decree from our courts for the payment of that debt.” The onus of proof
that the judgment is final and conclusive is on the party who asserts. In this case the
question of liability and the money owing has been conclusively decided leave to
appeal to the United Kingdom Court of Appeal was denied. This judgment cannot be
contested in the London High Court or for that matter any court in the United Kingdom
where the judgment was given. The Attorney General of Zambia has fully discharged
that burden. In addition, Section 3(3) of the Foreign Judgments (Reciprocal)
Enforcement Act, Chapter 76 of the Laws of Zambia provides that a judgment shall be
deemed to be final and conclusive despite the fact that an appeal is pending against it or
that it may still be subject to an appeal in the foreign country in which it was
pronounced. As already observed in the present case there is no appeal or possibility of
appeal.
(b) A specific sum of money
According to Section 3 (2(b)) of the Foreign Judgments (Reciprocal Enforcement) Act,
Chapter 76 of the Laws of Zambia the judgment must be for a specific sum and the sum
of money should not be in respect of taxes or of fines. In this case the sum of money that
the Attorney General of Zambia is requesting to be enforced is money stolen from the
Government of the Republic Zambia. It has been quantified by the London High Court.
It is not a tax evasion case nor is it a fine. The brief will address this matter more fully
later.
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Applicants’ Argument I
The applicants submit that the judgment is not a judgment to which the Foreign Judgments (Reciprocal Enforcement) Act chapter 76 of the Laws of Zambia applied and was registered in contravention of the provisions of the Act. Response: The judgment is a final judgment of a superior court in the United Kingdom, a country with which Zambia has reciprocal enforcement of judgment arrangements, and is therefore a judgment to which the Foreign Judgment (Reciprocal Enforcement) Act, Chapter 76 applies.
The applicants treat the court to a long history of the Foreign Judgments (Reciprocal
Enforcement) Act which, though interesting, is irrelevant to the circumstances of this
application or to the determination of the issues before this court. Despite irrelevance of
the matters raised the brief will clarify the status of Orders in Council and other orders
issued before Zambia gained independence in 1964 from the United Kingdom. With
respect to orders made before 1964, as for example in the case of Jamieson v. Northern
Supply Corporation (Private) Limited (1970), Scots Law Times Report 115 observed: “The
order continues in force, notwithstanding that Zambia has ceased to be a protected
territory by virtue of section 2(1) of the Zambian Independence Act of 1964.” At
independence in 1964 all acts and Orders in Council in place in the protectorate of
Northern Rhodesia continued to apply. The Zambia Independence Act of 1964 provided
that: “(1) Subject to the following provisions of the Act, on and after the appointed day
all law which, whether being a rule of law or a provision of the Act of Parliament or of
any other enactment or instrument whatsoever, is in force on that day or has been
passed or made before that day and comes into force thereafter, shall, unless and until
provision to the contrary is made by Parliament or some other authority having power
in that behalf, have the same operation in relation to Zambia, and persons and things
belonging to or connected with Zambia, as it would have apart from this subsection if
on the appointed day Northern Rhodesia had been renamed Zambia but there had been
no change in status.” To the extent that the applicants are suggesting that Jamieson v.
Northern Supply (Private) Limited (1970), Scots Law Times Report 115 is authority for
the proposition that there is no reciprocity of judgment between Zambian courts and
English courts the applicants are clearly wrong and are contradicted by a long line of
English authorities already referred to earlier in this brief. See the following cases:
(Adams and others v. Cape Industries PLC. And Another (1990) 2 Weekly Law Reports,
657, 678; Goddard v. Gray (1870) L.R. 6 Q.B. 139, 148‐149; Williams v. Jones (1845) 13 M
& W 628, 633.)
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A recent Supreme Court of Zambia Judgment in Zanetta Nyendwa v. Kenneth Paul
Spooner, affirmed the common law rule that there is reciprocity of enforcement of
judgments between Zambia and The United Kingdom. The Supreme Court dealt with a
case where the husband in a divorced couple, Spooner, obtained an ex‐parte order
which compelled his former wife, Zanetta Nyendwa, to return the children to the
United Kingdom following her failure to do so after a two‐week holiday. Spooner had
registered the order in Zambia under the Foreign Judgments (Reciprocal and
Enforcement) Act. Nyendwa contested the registration. The Supreme Court ruled that
the registration of foreign judgments is on a reciprocal basis and that there was
reciprocity between the United Kingdom and Zambia. It allowed the appeal on other
grounds other than reciprocity. These were that: (a) Ms. Nyendwa had not been heard
in Court; (b) matrimonial matters are expressly excluded from registration and
enforcement and therefore the order Spooner obtained in the United Kingdom was not
capable of registration in Zambia; and (c) Spooner made a grave error by applying in
the United Kingdom as there is no reciprocal arrangement for registration and
enforcement of this type of judgment or order between Zambia and the United
Kingdom. It is important to note that the reasons given by the court clearly state that the
judgment is based on the type of judgment involved. The Supreme Court was correct in
ruling that the Foreign (Reciprocal Enforcement) of Judgments Act, Chapter 76 of the
Laws of Zambia does not cover matrimonial matters. Section 2(2) of the Act specifically
states: “For the purposes of This Act, the expression “action in personam” shall not be
deemed to include any matrimonial cause or any proceedings in connection with any of
the following matters, that is to say, matrimonial matters, administration of the estates
of deceased persons, bankruptcy, winding up of companies, lunacy or guardianship of
infants.”
Applicants make a lengthy submission that the issuance of the Foreign
Judgment (Reciprocal Enforcement) Order of 1958 and repeal of the British and
Colonial Judgments Ordinance in 1959 meant that both foreign judgments and
judgments from the Dominions within the Empire could be registered under one
legislation: the Foreign Judgment (Reciprocal Enforcement) Ordinance. They submit
further that the said Ordinances did not mean that judgments of superior courts
from all her Britanic Majesty’s dominions were recognized as enforceable in Zambia.
In their view, for a particular dominion to actually enjoy the benefits of Part II of the
ordinance in Northern Rhodesia, there was need for a second order subject to the
requirements of reciprocity being satisfied, under Section 3 of the ordinance. The
defendants completely miss the point that the 1958 Foreign Judgment (Reciprocal
Enforcement) Order did not revoke previous orders. Part II 3(2) relates to extending
the application of the Foreign Judgment (Reciprocal Enforcement) Act to additional
countries. As we have already pointed out the question whether reciprocity exists
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between English courts and Zambian courts has been resolved by the Zambian
Supreme Court in Nyendwa v. Kenneth Paul Spooner cited above.
The power conferred by Part II on the President to by statutory instrument
designate to which countries the Act applies is only relevant where the President
wants to extend the application of the Act to countries not already covered. If for
example Zambia wanted to extend the application of the Act to Angola or
Mozambique, there would have to be a statutory instrument extending its
application to those countries. The 1958 Foreign Judgment Ordinance did not affect
countries and dominions with which Zambia already had reciprocal arrangements
in 1958. A situation arose in Nigeria, where the legislative situation is the same as
that prevailing in Zambia and the same arguments as being made by the defendants
were made. In Dale Power Systems Plc v. Witt & Bush Ltd. (2001) 8 NWLR (Pt. 716,
699), the trial judge in the High Court had applied the provisions of the 1990
Nigerian Foreign Judgments (Reciprocal) Enforcement Act in registering the foreign
judgment at issue in the case. On appeal, one of the issues raised before the
Nigerian Court of Appeal was whether the 1958 Ordinance (which was word for
word identical to the 1958 Zambian Ordinance) was the applicable legislation as
regards the registration of a foreign judgment obtained from the High Court of
Justice in England. The Court held that the trial court was in error in applying the
1990 Act and that the 1958 Ordinance was the applicable legislation. There was an
appeal. In dismissing the appeal the Nigerian Supreme Court held: “The law
applicable to the registration and enforcement of foreign Judgment in Nigeria, The Foreign
Judgment (Reciprocal Enforcement) Act Chapter 152 of 1990 (similar to Chapter 76 of the
Laws of Zambia) did not specifically repeal the 1958 Ordinance. The 1958 Ordinance was
applicable to the judgment obtained by the respondent against the appellant from the High
Court of Justice, Queens Bench Division, UK.” The President is free to add countries to
which the Foreign Judgments (Reciprocal) Enforcement Act Chapter 76 of the Laws
of Zambia. He or she can do so by issuing a statutory instrument as provided for
under Part II of the Act.
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Applicants’ Argument II
The applicants submit that the London High court had no jurisdiction to hear the case
over the Zambian‐based defendants and further that the trial was a violation of Chiluba’s
immunity contained in article 43 of the Constitution of Zambia.
Response: The London High Court had both territorial and consent jurisdiction. The
Zambian constitution does not provide any immunity to civil proceedings to a President, let
alone a former President. It simply postpones the time when a civil action can be brought
against a president to a time when he or she has left office.
According to Section 6(1) of the Foreign Judgments (Reciprocal Enforcement) Act,
Chapter 76 of the Laws of Zambia for foreign judgments to be enforced in the Republic,
the foreign court must have jurisdiction to entertain the case. A foreign court has
jurisdiction if the defendant has:
1. been resident in the country where the foreign court is located;
2. its principal place of business in the country where the foreign court is
located (or the place of business through which the relevant transaction
was conducted);
3. agreed to submit to the courtʹs jurisdiction; or
4. voluntarily appeared in the proceedings
It is submitted that the London High Court had both territorial and consent
jurisdiction. As Justice Scott observed in Adams and Others v. Cape Industries PLC and
Another (1990 2 WLR 657, 678), the basis on which courts will enforce the in personam
judgments of foreign courts arises in two ways. First, it is accepted that a foreign court
is entitled to take jurisdiction on a territorial basis. “All jurisdiction is properly
territorial” said the Earl of Selbourne L.C. in Irdar Gurdyal v. Rajah of Faridkote (1894) A.C.
670, 683. He expanded the proposition thus: “Territorial jurisdiction attaches (with special
exceptions) upon all persons either permanently or temporarily resident within the territory
while they are within it; but it does not follow them after they have withdrawn from it, and when
they are living in another independent country. It exists always as to land within the territory,
and it may be excised over moveables within the territory; and, in questions of status or
succession governed by domicile, it may exist as to persons domiciled, or who when living were
domiciled, within the territory.” An analogy can drawn from cases dealing with
corporations. In Saccharin Corporation Ltd. v. Chemische Fabrik Von Heyden Akiengesellscaft
(1911) 2 K.B. 516 p. 524, Fletcher‐Moulton L.J. Stated: “The question before us is therefore, it
seems to me, to be purely one of fact. We must look at all the evidence given by both parties and
consider whether the plaintiffs have brought the case to such a point that it falls within the
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principle enunciated by Romer L.J.” The question is always one of fact to be determined by
the court. In Dunlop Pneumatic Tyre Co. Ltd v. Actien‐Gesellschaft fur Motor und
Motorfahrzeugbau Vorm. Cudell & Company (1902) 1 K.B. 342, 349, Lomer L.J. had opined
that “the result of the authorities appears to me to be that, if for a substantial period of time
business is carried on by a foreign corporation at a affixed place of business in this country,
through some person, who carries on the corporation’s business as their representative and not
merely his own business, then for that period the company must be considered as resident within
the jurisdiction for the purpose of service of a writ.”
On jurisdiction, the grounds relied on by the London High Court in assuming
jurisdiction were the same that the Zambian Courts would rely on to assume
jurisdiction in Zambia. The principal grounds were that the tort (acts in furtherance of
the conspiracy to defraud the Republic of Zambia) on which the claims were founded
and the damage sustained resulted from acts that had taken place within the
jurisdiction of the Court ( Zamtrop laundering account was in London.) The claim was
brought for money had and received or for an account or other relief against the
judgment debtors as constructive trustees and the judgment debtors alleged liability
arose out of acts committed whether by each of them or otherwise within the
jurisdiction of England and Wales. Chiluba and the other Zambian defendants used the
London defendants to carry out their instructions and a Bank in London executed the
transactions that were the subject of the court proceedings in London. Chiluba and the
other Zambian‐based defendants frequently visited the United Kingdom, they issued
the instructions to the Bank and to Meer and Malik to carry out payments and they
generally controlled the fraud that was perpetrated against the Zambian Government.
The second ground was that the Zambian defendants were necessary or proper parties
to the action which would proceed in any event in London against those parties. The
London High Court had jurisdiction over Atan Shansonga, Bimal Thaker, B.B. Thanker,
Cave Malik and Meer Care because they were all domiciled within the jurisdiction. By
reason of the provisions of the Brussels Convention, it also had jurisdiction over Jarbans
(a Luxembourg company) and its Belgium subsidiary as well as Raphael Soriano (a.k.a
Katete Katoto) as they were domiciled within relevant territories. Accordingly, a trial
would take place in London; the Zambian courts would have difficulty in exercising
jurisdiction over non‐domiciled Defendants who were subject to the jurisdiction of the
London High Court. It was in these circumstances that counsel for the Zambian based
defendants conceded that trial would not take place entirely in Zambia and that there
would not be more than one trial. Accordingly the argument of the Zambian
defendants in London High Court was not so much that the London High Court did not
have jurisdiction (it was effectively conceded that it did); the argument was really one
of forum non conveniens. A hopeless argument given the circumstances described above.
It is submitted that the London High Court unquestionably had jurisdiction and
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exercised it, in the course of their challenge the Zambian defendants accepted that the
London High Court Had jurisdiction to hear the case against them, but argued that in
the exercise of its discretion the English High Court should decline to exercise that
jurisdiction which it possessed. It is important that the court should note and realize
that the Zambian defendants ran one argument before the London High Court, and in
this application are running a different argument and one that is inconsistent with
concessions they made in London as to jurisdiction. The claim was brought against
persons duly served within the jurisdiction, namely Meer Care and desai, Messers Cave
Malik, Atan Shandsonga and Bimal Thaker or out of the jurisdictionnamely Boutique
Basile( a Swiss resident). Jarban SA (a Luxembourg company), and Raphael Soriano( a
Belgian resident) and a person (each of the judgment debtors to whom this application
relates) was a necessary or proper party thereto.
The Attorney General considered it appropriate for these proceedings to be brought
in the High Court in London for a number of reasons. In this case the claim rose out of
the transfer of about $52,000,000 from Zambia to the Zamtrop account held in the
Zambia National Commercial Bank Limited in London, United Kingdom. The second
cause of action deals with a United Kingdom‐registered company called MOFED. The
third claim arose out of the money transfer made by Zambia for an arms deal that
somehow found its way to London. These causes of action gave the London Court
jurisdiction in the subject matter. The defendants were both Zambian‐based and United
Kingdom‐based. Frederick T. Chiluba, Xavier Chungu, Stella Chibanda, Aaron Chungu,
Faustina Kabwe and Francis Kaunda, all Zambian‐based defendants, issued
applications challenging the decision of the Attorney General to commence the
proceedings in the English Court. As the trial Judge observed: “It is worthy of note that
they did not do so on the basis that the proceedings had not been properly brought in the High
Court in London or that the London High Court had no jurisdiction in the matter. Their
challenge was based on two factors. First it was said that they had a right to attend their trial in
person and were not being given that opportunity because they would not be allowed to attend in
London. Second it was contended that the civil proceedings should be adjourned until after the
criminal proceedings were heard. The justification for this was that they would be required to
give evidence in the civil proceedings and thereby reveal matters which they would deploy or not
in the criminal case.”
The trial judge rejected their application but took measures to meet their concerns,
including offering to go to Zambia as special examiner to hear their evidence live in a
court in Zambia; the proceedings were taped and provided via a live video link to
Zambia. In addition they were provided with daily transcripts at the initial expense of
the Government of Zambia. The facility was discontinued when it was discovered that
the defendants selectively used the transcripts to manipulate media reports on the case
in Zambia. In respect of their privilege against self‐incrimination, the court directed that
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the proceedings be ring fenced. To aid that undertaking the Government of Zambia
gave undertakings and waived any immunity that the Government might have with
respect to enforcement of those undertakings and unconditionally submitted to the
jurisdiction of the London High Court for enforcement of any of those undertakings.
The Zambian defendants appealed that decision to the United Kingdom Court of
Appeal, which dismissed their appeal. In so dismissing the appeal the Court of Appeal
noted that “the defendants accepted that there is no question of the civil proceedings
taking place wholly in Zambia, and it follows that they accepted, in my judgment
properly and correctly, that the civil proceedings should take place in England.”
The Zambia‐based defendants participated in the early version of the trial by
seeking stay or dismissal of actions. They presented two grounds for stay or dismissal
of the actions, the first being that the criminal trial in Zambia, in which they were
defendants, would be prejudiced against them if the civil court rendered a decision
against them. To relieve this fear the court made a ring fencing order which
prohibited the use of any evidence or material presented before the court without its
permission. The Attorney General of Zambia also waived the Zambian Government
immunity and vowed to abide by the order. The second argument presented was the
fact that the place of trial being in London barred their participation given their bail
terms, which prohibited them from leaving Zambia. To address this issue the London
Court established a Special Examiner to hear the evidence of the Zambian‐based
defendants in Zambia. In addition, arrangements were made for live video
transmission of the London trial and daily transcript of the evidence heard in London.
The defendants declined to take advantage of both facilities. The facts in case of Adams
v. Cape Industries (page 785) cited by the applicants are completely different from the
facts before this court. In that case the parties took no part in the proceedings, and the
defendants when judgment was served upon them did not know the method by
which damages had been assesed from anything stated in the judgment. The plaintiffs
drew up and served a form of judgment which did not reveal what had taken place.
The case was opened in the London High Court on 31st October, 2006. A special
examiner was established in Zambia to create an opportunity for the Zambia‐based
defendants to have a fair trial. Some of the defendants attended the trial. Former
President Frederick Chiluba, Xaiver Chungu, Faustin Kabwe, Ms. Stella Chibanda,
Francis Kaunda, and Aaron Chungu were based in Zambia and did not participate in
the London trial despite the special arrangements made for their participation. With the
exception of the Zambia‐based defendants and Mr. Soriano, Boutique Basile and Irene
Kabwe all the other defendants participated in the trial at the London High Court. All
the Zambian‐based defendants including former President Chiluba served defenses
which were considered by the judge. By these actions defendants atoned to the
jurisdiction of the court when they entered defenses and when they appealed to the
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United Kingdom Court of Appeal the judgment of the trial judge dismissing their
challenge of the Attorney General’s decision to commence proceedings against them in
the London High Court. After the final judgment of the London High Court, Chiluba
chose not to appeal the judgment in London. The other defendants, both Zambian and
London based, appealed the decision. Their applications for leave to Appeal were
dismissed by the United Kingdom Court of Appeal. It should also be noted that the
London judgment was used by the Zambian Government to extract payments from
defendants Atam Shansonga, Bimal Thaker, B.B. Thanker, Cave Malik and their
insurers in the United Kingdom. The properties in Belgium were recovered (gross value
US$8 million) in a claim against four (4) European defendants based on the same
allegations of conspiracy to defraud as was maintained against Chiluba and the other
Zambian defendants. The Zambian Government has registered the same judgment
against Raphael Soriano in the Belgium Courts and resisted an application by Raphael
Soriano challenging that registration.
The alternative basis of jurisdiction where in personam money judgments are
concerned is that of consent. While we think this basis of jurisdiction is not necessary in
this case, we will address it as it has been canvassed by the applicants. Prima facie, a
foreign court does not have, in the eyes of English law, jurisdiction over an absent
foreigner. But if the foreigner consents to the court exercising jurisdiction over him or
her, the position is different. As Justice Scott observed in Adams v. Cape Plc. (p. 679), “the
element of consent is clearly present if the foreigner, as plaintiff, commences proceedings in the
foreign court. It is also present if the foreigner, as defendant, makes a voluntary appearance
without protest in the foreign court. In either case there is a submission by the foreigner to the
jurisdiction of the foreign court.” Therefore the principle that a foreign court has
jurisdiction to give an in personam judgment if the judgment debtor, the defendant in the
foreign court, submitted to the jurisdiction of the foreign court, is well settled in the
common law. As already observed the Zambian‐based defendants participated in the
early stages of the trial seeking a stay or dismissal of the action. They filed defenses and
appealed the decision of the London High Court to the United Kingdom Court of
Appeal. By doing all these things they voluntarily appeared in the proceedings and
gave the London Court Jurisdiction. In circumstances very similar to the present case, in
the Nigerian case of Dale Power Systems Plc v. Witt & Bush Ltd (2001) 8 NWLR, 716, the
defendants filed process acknowledging service of the writ of summons, filed a
statement of defense, and appealed against the Judgment and lost. In these
circumstances, the Nigerian Court of Appeal held on an application to set aside the
foreign judgment on grounds that the applicant had not consented to the jurisdiction of
the court, that the defendant had voluntarily submitted to the jurisdiction of the English
court and consequently that the English court had jurisdiction over him.
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The conclusion is inescapable that by participating in the application to stay the
proceedings and in the various versions of the proceedings, by filing defenses which
were considered by Judge Smith and by appealing Judge Smith’s judgment to the
United Kingdom Court of Appeal, the defendants recognized the jurisdiction of the
Court to deal with and dispose of the claims made against them. Although the court
declined to enforce the judgment on other grounds, the case of Adams v. Cape
Industries Plc and Capasco Limited (1990) 2 WLR 657682‐683 supports the view that
where the defendants participate in a trial they would be held to have submitted to
the jurisdiction of the court and waived the jurisdictional objection, if any.
The question of whether Chiluba has immunity from Civil suits
The applicants submit that the provisions of article 43 of the Constitution of
Zambia, Chapter 1, of the Laws of Zambia grant immunity to Chiluba by providing
that “43 (1) Civil proceedings shall not be instituted or continued against the person holding
the office of President or performing the functions of that office in respect of the office in respect
of which relief is claimed against him in respect of anything done or omitted to be done in his
private capacity.” Provides immunity to Chiluba from civil suits such as the the one
that was before the London Court. To construe Article 43 (1) as granting immunity to
Chiluba against civil proceedings is both erroneous and disingenuous. The
petitioner’s efforts to construe immunity from civil suits for unofficial acts grounded
purely in the identity of the office is unsupported by law. That in fact would be
contending that the President is above the law in the sense that his or her conduct is
entirely immune from judicial scrutiny. The applicants take this view even further in
their suggestion that under the Zambia Finance Charter and the Zambia Intelligence
Security Services Act No. 14 of 1998, only the Auditor General could legally examine
records of accounts of the Zambia Intelligence Services. It is perhaps this kind of
arrogant, erroneous interpretation of the law and the false sense of security from
scrutiny that it provided that led to the abuses that were the subject of the London
Judgment. Article 43 (1) of the Zambian constitution merely postpones proceedings
while the President is in office but leaves him or her completely open once he or she
has left office. This interpretation is reinforced by article 43 (4), which stops the
limitation time running during the incumbency of one as president and provides:
“Where provision is made by law limiting the time within which proceedings of any
description may be brought against any person, the term of any person in the office of
President shall not be taken into account in calculating any period of time prescribed by that
law which determines whether any such proceedings as are mentioned in clause (1) and (3)
may be brought against the person.” In any event serious questions can be raised as to
whether stealing state funds can ever be an official act. If that were so it would be
impossible to prosecute offences like theft by a public servant where one of the
elements of the offence is that one is a public servant.
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Applicants’ Argument III
The applicants have submitted that the London judgment insofar as it directed the giving
of credits where they were due was not conclusive and final.
Response: The London Judgment specified the amount of money to be paid by the
applicants. The fact that credits were to be ascertained is immaterial as it was specific enough
as it identified the credits to be made. In any event the credits were resolved by a further order
by the London High Court made on 29 June 2007 relating to 4 May2007 Judgment
1. The Requirement that the Judgment be for a Specific Sum of Money The Recognition of Foreign (Reciprocal Judgments) Act, Chapter 76 of the Laws of
Zambia in section 3(2) requires that under the judgment to be registered there must be
payable a sum of money. As L.J. Slade observed in Adams and Others v. Cape Industries
Plc and Capasco Limited (1990) 2 WLR 657, 781, “the purpose of an in personam monetary
judgment is that the power of the state through the process of execution will take the defendant’s
assets in payment of the judgment.” In cases of debt and in many cases of contract the
amount due will have been fixed by the acts of the parties, and in such cases a
defendant judgment will not require judicial assessment. When the claim is for
unliquidated damages in a civil wrong, both English law and Zambian law require
judicial assessment if there is no agreement between the parties. That means that the
extent of the defendants’ obligation is to be assessed objectively by the judge upon
proof by the plaintiffs of the relevant facts. In this case the court found all the
defendants except Irene Kabwe at fault. The Zambian‐based defendants were found to
have misappropriated $46,000,000. The participating defendants were found to have
assisted the Zambia‐based defendants in engaging in corrupt practices. The non‐
participating defendants likewise were found to be liable for approximately $22,000,000.
The court determined what each defendant appropriated from the Zambian
Government. The court did this after hearing evidence of money appropriated by each
individual and made a determination in respect of each individual defendant of the
amount of money that each individual defendant took from the Zambian Government.
Following the May 4 2007 judgment the court held a three day hearing to hear among
other issues , credit recoveries, interest and costs, on 29 June 2007 Judge Smith delivered
a further judgment order. After taking into account recoveries, the judgment sums
which each of the judgment debtors is liable to the Republic of Zambia were in that
judgment finalized. Specifically speaking, the findings of the London Court were the
following:
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1. Meer Care & Desai were adjudged to be liable for $11, 135,665. 61
2. Cave Malik/Bimal Thaker were adjudged to be liable for $3,923,612. 96
3. Frederick T. Chiluba was adjudged to be liable for $57, 441, 769. 38
4. Xanvier F. Chungu was adjudged to be liable for $57, 261, 390. 72
5. Stella Chibanda was adjudged to be liable for $57, 261, 390. 72
6. Atan Shansonga was adjudged to be liable for $4,400,684. 16
7. Aaron Chungu was adjudged to be liable for $26, 682, 289. 65
8. Faustin Kabwe was adjudged to be liable for $53,257,020. 30
9. Francis Kaunda was adjudged to be liable for $100, 575. 81
10. Boutique Basile was adjudged to be liable for $1,815,736. 71
11. Rapael Soriano was adjudged to be liable for $29, 609,562. 25
12. NEBRASKA was adjudged to be liable for $107,770. 34
These are specific amounts of monies owed to the Zambian Government and
completely satisfy the requirement of the Foreign Judgments (Reciprocal
Enforcement) Act, Chapter 76 of the Laws of Zambia that the amounts of money be
specific. The amounts were clearly judicially assessed based on the evidence before
the court. The claim in these proceedings is to enforce a judgment for definite sums of
money against each one of the defendants individually. English courts have held that
a sum is sufficiently certain for this purpose if it can be ascertained by a simple
arithmetical process. In Beatty v. Beatty (1924 1.K.B), a case involving the enforcement
a United States alimony court decision in the United Kingdom, the United States court
had ruled that “the defendant pay to the plaintiff the sum of twenty dollars a week for support
and maintenance” and directed that “the plaintiff should have liberty to apply for a further
modification of the decree in the event of change of circumstances.”
The defendant in the case argued that the judgment as amended and as described
above was not a final judgment of the court. L.J. Bankes sitting in the Court of Appeal
affirming the decision in Harrop v. Harrop (1920) 3 K.B. 386 stated: “In order that a
foreign judgment may be enforceable in an English court it must be a final and conclusive
judgment of the court by which it was pronounced, and it is not a final and conclusive
judgment if an order has to be obtained in that court for its enforcement, which is not the case
here, or if on application to that court for an order to enforce the original judgment is liable,
which in the present case it is not.” In the same case L.J. Srutton held: “No doubt a
judgment to be final must be for a certain sum. But a sum is sufficiently certain for that
purpose if it can be ascertained by a simple arithmetic process.” He further went on to say
that for example where the sum awarded relating to costs was subject to tax, when
once the costs had been taxed there would be a final judgment which could be
enforced, because nothing would remain to be done except to subtract the amount
allowed in taxation from the amount of the judgment (page 816). Similarly, in the
present case once the credits were calculated nothing would remain to be done.
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Applicants’ Argument IV
The applicants’ submit that the main issue which formed the basis of the judgment which has
been registered was adjudicated upon in the case of Mazoka & Others v. Levy Mwanawasa.
Response: The argument is without merit and legal foundation and is frivolous.
The court is treated to numerous pages of case law on the doctrine of stare decisis
which have no application to this case and is clearly confused with the doctrine of res
judicata. The Mazoka & Others v. Levy Mwanawasa case was an election petition. Quite
apart from the fact that none of the London defendants was party to this case, the
issues before the two courts were different. The issue before the Mazoka Court was
whether Government money had been used to fund election campaigns of the ruling
party. The issue before the London Court was whether defendants had conspired to
defraud the Zambian Government. The applicants argue that stare decisis is relevant
here without spelling out to the court the holding of the court that can be said to be
stare decisis. Further the reasoning of the applicants would bring to an end numerous
civil proceedings that follow criminal proceedings. The principle of stare decisis refers
to the binding nature of the holding of the court on a legal issue. The case cited by the
applicants, Martch Corporation Ltd and Development Bank v. The Attorney General (SCZ
Judgment No. 3 of 1999) emphasizes this point in the following words: “The principle of
stare desisis requires that a court should abide by its ratio decidendi in past cases.”
Similarly, in Zambia Consolidated Mines Ltd v. Patrick Mulemwa (SCZ 1995), another case
cited by the applicants, ACJ Gardner states: “The Industrial Relations Court in this case
was not in a position to say that in their view the words “social status” in section 198 of the
Industrial Relations Act referred to the appellant’s position in the hierarchy of the company.
As this Court has been at pains to explain before, discrimination per se is not a ground for
making an order for reinstatement. The fact that some members of a company are treated
differently from others is evidence of discrimination but it is not in itself discrimination on the
grounds of social status.” This is the general theory of law the court is proposing. The
Supreme Court is clearly defining the legal issue of what amounts to discrimination in
law. The Supreme Court of Zambia once again makes it clear that it is the ratio
decidendi that is binding in a case. The rationale of the doctrine is to make the law
predictable; it serves as a desirable check on power, it assures equality for all before
the law, it increases the efficiency of justice, it serves as a vehicle for preserving the
accumulated wisdom of the past and it is logical. The rationale emphasizes the
importance of discerning what exactly is the legal proposition in the court’s holding
that forms stare desisis. Here the applicants completely fail to identify the proposition
of law they wish the Court to draw from the Mazoka & Others v. Levy Mwanawasa case
and instead try to gloss over the fact that the issues were different and the parties to
the case were different.
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Applicants’ Argument V
The applicants have submitted that the judgment violated principles of natural justice and
that the judgment was contrary to public policy. They further argue that the judgment was
obtained by fraud and was a violation of the applicants’ right to a fair trial. This section of the
brief will deal with all three points.
Response: The London High Court trial did not violate any principle of natural justice, the
judgment is not contrary to public policy and was not obtained by fraud. The trial was not a
violation of the applicants’ right to a fair trial.
The applicants were given every opportunity to participate in the trial and did
participate at varying times. Once the foreign court’s jurisdiction is recognized and the
conditions set in section 3 (2) of the Foreign Judgments (Reciprocal Enforcement) Act
Chapter 76 of the Laws of Zambia are fulfilled, the only available defenses to an action
for enforcement are that: the foreign judgment was obtained by fraud, the foreign
judgment involved a denial of natural justice, enforcement of the foreign judgment is
contrary to public policy, or the foreign judgment involves a party who was not a party
to the foreign suit. None of these defenses arise in this case. As Judge Scott observed in
Adams v. Cape (page 715) natural justice and public policy cover the same ground. He
added: “If the judgment… is objectionable on natural justice grounds, it is easy to conclude
that it would be contrary to public policy to permit its enforcement…. If it is not objectionable on
natural justice grounds, then, on the footing that no jurisdictional objection can be taken, I
cannot see any public policy reason for not enforcing it.” The concept of public policy is
mutable and uncertain. It covers a multitude of sins. Be that as it may, there are certain
established heads of public policy. These are: agreements to commit a crime or civil
wrong; agreements which injure the state in its relations with other States; and
agreements which tend to prevent the course of justice. It has long been recognized that
the concept of public policy is an “unruly horse” and that the public policy “is never
argued at all but only when other points fail.” Fortunately a review of the law indicates
that this concept is narrowly interpreted. The Supreme Court of Canada in Beals v.
Saldanha (2003) SCC 72 has held that notions of public policy and natural justice have to
be construed very narrowly. The Court of Appeal judgment in Adams v. Cape,
summarizing its conclusions on Jacobson v. Frachon, which through Lord Atkin’s
judgment seemed to restrict natural justice to procedural defects such as a failure to
give notice of proceedings, observed that while the breach of natural justice is not
restricted to breach of due notice, the Court approved the test set in Pemberton v. Hughes
(1899) 1 Ch. 781, 790 where Lindley M.R. stated: “If a judgment is pronounced by a foreign
court over persons within its jurisdiction and in a matter with which it is competent to deal,
English courts never investigate the propriety of the proceedings in the foreign court, unless they
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offend against English views of substantial justice. Where no substantial justice, according to
English notions, is offended, all that English courts look to is the finality of the judgment and the
jurisdiction of the court, in this sense and to this extent―namely, its competence to entertain the
sort of case which it did deal with, and its competence to require the defendant to appear before it.
If the court has jurisdiction in this sense and to this extent, the courts of this country never
inquire whether the jurisdiction has been properly or improperly exercised, provided always that
no substantial injustice, according to English notions, has been committed.” The criteria
enunciated by the Court of Appeal in Adams v. Cape Industries, p. 778, is whether the
procedural defects alleged constitute “substantial breach of an English court’s view of
substantial justice.” This passage expresses the fundamental criterion for the success of a
natural justice objection to the enforcement of a foreign judgment. Applying the same
test, a Zambian court should only impeach a foreign judgment which falls under the
Foreign Judgments (Reciprocal Enforcement) Act if it is contrary to Zambian views of
substantial justice. There is therefore no basis on which to impeach the London High
Court Judgment in this case.
The applicants allege that the London Judgment was obtained by fraud without
making any effort to establish a prima facie case of fraud. Apart from the applicants’
failing to disclose who they allege perpetrated the fraud, the allegations of fraud made
by the applicants are not particularized and are completely unsubstantiated. The
leading case on this issue is Syal v. Heyward (1948 2K.B. 443), where a judgment
delivered in India in favor of Syal had been registered as a judgment of the King’s Court
Division in London pursuant to the provisions of the Foreign Judgments (Reciprocal
Enforcement) Act of 1933. The defendant Heyward applied for an order to set aside the
registration pursuant to section 4 of the Act (this section is word for word identical to
section 6 (iv) of the Zambian Act dealing with fraud) on the grounds that the judgment
had been obtained by fraud. The Court Appeal L.J. Cohen, reading the Judgment of the
Court, held that, “the fraud contemplated by section 4 of the Foreign Judgments (Reciprocal
Enforcement) Act, 1933 is fraud on the court. Unless the court has been deceived, the section is
not applicable.” In other words the applicant must show that the applicant seeking the
registration of the judgment has induced the foreign court by fraud to come to a wrong
conclusion. The Court also ruled that if the court is to act the plaintiff must show a
prima facie case. That is, that in the present case the evidence filed by the applicants
must disclose sufficient evidence of a case to entitle them to an issue. In Owens Bank Ltd
v. Etoile Commercial SA (1995 I WLR 44), Owens Bank Ltd had alleged fraud in a case
involving a guarantee when Etoile Commercial SA sought to enforce in St. Vincent a
Judgment delivered in Paris. The Bank had not raised or alleged fraud in the guarantee
that was the subject of the judgment until the case was heard by the Court of Appeal.
The Court of Appeal held that the Bank’s defense based on fraud should be struck out
as an abuse of process having regard to the history of the litigation. On further appeal to
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the Privy Council the Board stated: “Where allegations of fraud have been made and
determined abroad, summary judgments or striking out in subsequent proceedings are
appropriate remedies in the absence of plausible evidence disclosing at least a prima facie case of
fraud.” The jurisdiction to strike out applications for abuse of process lies both in the
specific order and in the inherent jurisdiction of the court. Two rationales can be
considered here: finality in litigation is one basis upon which the inherent jurisdiction of
the court to prevent abuse is founded. Another objective is to protect litigants from
being exposed to frivolous, vexatious or hopeless litigation. It is submitted that the
applicants have failed to make a prima facie case of fraud and their allegation should be
dismissed as frivolous and vexatious.
CONCLUSION
The enforcement of the London Court judgment will have implications for future
corrupt practices of government officials. If the decision is enforced it will have
prohibitive implications and will serve as a deterrent for corruption and the breach of
fiduciary duty and discourage the abuse of the trust of the people. It will teach
government officials to behave by the terms and conditions given to them by the people.
It will show commitment to rule of law and justice. If the courts have been very good at
enforcing judgments against individuals who have unlawfully enriched themselves
from private individuals’ riches, then the courts as protectors of the interests of the
people have every reason to enforce decisions against individuals who stole money
from government’s coffers.
However, for the London Court to be enforced in Zambia it needs to be registered
according to part II of the Foreign Judgments (Reciprocal Enforcement) Act. In this case
the requirements for the enforcement of foreign judgments have been met. The London
Court had jurisdiction over the subject matter based on the causes of action and the
voluntary surrender to the jurisdiction by the defendants. Unless the judgment debtor
alleges fraud, there will be no re‐examination of the merits of the case. In Adwork Ltd v.
Nigeria Airways Ltd (2000) 2NWLR, 645, the Court of Appeals held that the registering
court cannot sit on appeal over a judgment of a foreign court. The same observation was
made by L.J. Slade in Adams v. Cape Industries when he stated: “It is well established that a
defendant, shown to have been subject to the jurisdiction of a foreign court, cannot seek to
persuade our court to examine the correctness of the judgment whether on the facts, or as to the
application by the foreign court of its own law or when relevant the law of this country.” The
only challenge therefore that could be made to the validity of the original judgment
would be, an assertion that the foreign court did not have jurisdiction to try the case,
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that the judgment is not a liquidated sum of money, or that the judgment is not final. It
has already been submitted that the London Judgment is final, that the claims are for a
liquidated sum of money, and that the London High Court had jurisdiction. In relation
to a potential challenge mounted by the judgment debtor, it is the judgment debtor
himself or herself who has the burden of showing that one of the challenges is credible
and present. In the judgment for which enforcement is sought, the London High Court
exercised proper jurisdiction over the subject matter based on the causes of action and
additionally the voluntary surrender to the jurisdiction by the defendants.
For all the foregoing reasons, we respectfully request that this court affirms the
registration of the London Court’s decision so that the judgment is enforced in
Zambia. Muna Ndulo
Professor of Law, Cornell Law School
Ithaca, New York