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 (section 2).
A foreign judgment that is registered in Zambia acquires the same status as a locally rendered judgment. In 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 CB in Russell v. Smyth (1842) 9 M & W 810, 818. The same principle was 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, Chapter 76 of the Laws of Zambia 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. Dr Chiluba did not apply for leave to appeal the Judgment and Orders; the applications for leave to appeal by the remaining Zambian defendants to the United Kingdom Court of Appeal were dismissed In Beatty v. Beatty (1924) 1K.B. 807. 815, answering the question as to what is a final judgment, Scrutton, 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 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. The judgment is without doubt final and conclusive. This judgment cannot be contested in the London High Court or for that matter in any court in the United Kingdom, the country, where the judgment was given. The Attorney General of Zambia has fully discharged that burden and has shown that the judgment is final and conclusive of the matters it decided. 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
Section 3 (2(b)) of the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia requires that the judgment in addition to being final and conclusive must be for a specific sum and the sum of money should not be in respect of taxes or of fines. This is also the position at the Common Law that the judgment to be registered must be for a fixed sum see Mileta Pakou and Others v. Rudnap Zambia Limited (1998) ZR 233 and Nouuvion v. Freeman (1989, 15 AC 1. 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.
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 and the Common Law rules on the enforcement of foreign judgments apply.
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 and to the determination of the issues before this court. Despite the irrelevance of the matters raised by the defendants 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 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."
There is legislative authority for this interpretation of the law. 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 the enforcement of judgments between Zambian courts and English courts the applicants are 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.) The Jamieson v Northern Supply (private) Limited (1970), Scots Law Times Report 115 was decided on a different issue. In the Jameson case the petitioner applied to have the court set aside the judgment of the High Court of Zambia on the grounds that there was no jurisdiction in the Zambian court to grant the decree that the Zambian High Court had granted and was the basis of the registration that was being challenged.
It was argued that since the applicant was not domiciled in Zambia he was not subject to jurisdiction of the High Court of Zambia at the date of service of the writ because service of the writ on him was not made within 110 days of his departure from Zambia and that therefore the judgment was not a judgment to which the provisions of section 4 of the Foreign Judgments (Reciprocal Enforcement) Act of 1833 applied. The respondent pleaded that the petitioner was in fact subject to the High Court of Zambia as he had agreed to subject himself to the jurisdiction of Zambia in terms of his contract of employment.
The Court took the view that there was no express agreement in the contract to submit to the jurisdiction of the High Court of Zambia. The mere fact that the contract was entered into in Zambia as well as performed in Zambia does not imply that there was in fact an agreement of submission to the Zambian jurisdiction. The court held that in the circumstances the Zambian court had no jurisdiction to grant the original decree. The original court would have been deemed to have jurisdiction if as set out in section 4 (2) (a) (ii) of the Foreign Judgments(Reciprocal Enforcement) Act 1933 the "defendant in the original court had before the commencement of the proceedings agreed ..to submit to the jurisdiction of that court or of courts of the country of that court."
The court held that as the terms of 4(2) (a) (iii) were not satisfied therefore registration of the judgment could be set aside. While the court held that the 1933 Act did not apply to Zambia it stated that the Administration of Justice Act of 1920 applied to Zambia. Lord Johnson stated the law in the following terms: "It is sufficient to state that Part II of the Administration of Justice Act, made provision on a reciprocal basis, for the enforcement by the Scottish courts of those dominions and protected territories to which the Act might be extended by Orders in Council and that Part II of the Act was extended to Zambia, then Northern Rhodesia, by the Northern Rhodesia and Uganda Protectorate Order 1922 (S.I. 1922, No. 719). The order continues in force , notwithstanding that Zambia has ceased to be a protected territory, by virtue of s. 2(1) of the Zambian Independence Act 1964."
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 and appealed to the Supreme Court to have the registration set aside. 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."
The 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 Britannic Majesty's dominions were recognised 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.
This interpretation of the law is contradicted by Lord Johnsons' statement in the Jamieson v. Nothern Electricity Supply Corporation (Private) Limited cited to the Court by the applicants. 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 between English courts and Zambian courts has been resolved by the Zambian Supreme Court in Nyendwa v. Kenneth Paul Spooner ((SCZ, (Judgment No. 20 of 2010 Appeal No. 21/2009) and in Muleta Pakou and Others v. Rudnap Zambia Limited, (1998 ZR 233).
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 similar 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 by statutory instrument to add countries to which the Foreign Judgments (Reciprocal) Enforcement Act Chapter 76 of the Laws of Zambia should apply. He or she can do so by issuing a statutory instrument as provided for under Part II of the Act.
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