Organisation of Parliamentarians against Corruption (GOPAC) vice-president
Given Lubinda has described the decision to throw out the application to
register the London High Court judgment which found Frederick Chiluba and others
liable for theft of about US $46 million public funds as extremely
And Lusaka High Court judge Evans Hamaundu has said some of
former president Chiluba's arguments against the enforcement of the London High
Court judgment in Zambia were irrelevant to the issues under his
Meanwhile, PF leader Michael Sata yesterday said the
Lusaka High Court's decision is not strange given Chiluba's recent
This is in a matter where Chiluba and others challenged an
application order granted to the Zambian government, through the Attorney
General, for the registration of the judgment.
Lubinda, in an interview
yesterday said the turn of events questioned the seriousness of the fight
against corruption particularly in Zambia.
Lubinda, who is also
opposition PF spokesperson, said the judgment was extremely disturbing and
called for further reflection on the efficacy of national, regional and
"…National in the sense that this is a matter
that was prosecuted by the Attorney General of the country and at great expense
to the taxpayer," Lubinda said.
"When then Minister of Justice who is
Vice-President now led a team of eminent lawyers to go and secure the judgment
in London and looked at it in the context of international treaties and
protocols with regard to the management of international crime. One important
international treaty is the United Nations convention against corruption. In
there, there is a provision for trans-boundary investigations and
inter-governmental cooperation in the pursuit of corruption."
said the whole world would read the judgment with bewilderment.
said the refusal by the Zambian court to register the London judgment did not
change the fact that Chiluba and his co-accused were found liable.
refusal by the court to register the judgment does not quash the London
judgment, what they have done is to refuse to recognise it," he
"His Chiluba accomplices in the matter who were in the jurisdiction
of the UK were surcharged and now that the case has not been registered, it is
incumbent upon the government to explain to the people of Zambia how they will
pursue Chiluba whose case was tried, and the court in London, based on evidence
before it, judged that he was liable. We are fortunate that the Minister of
Justice who successfully prosecuted the matter is now
And on judge Hamaundu quoting a Supreme Court judgment
where a British national Kenneth Spooner sought to have his children taken back
to the UK after obtaining an order in that country, Lubinda said the decision
was misplaced because the two cases were tried on different pieces of
"You cannot draw parallels on cases that are being tried on
different pieces of legislation. The Spooner case was tried on the law of
custody whilst this one was on embezzlement," Lubinda said.
corruption in this context has an international convention which should guide
all nations and, therefore, drawing parallels is misplaced. Had there been a
precedent on a president being acquitted, that would have been
And in his judgment delivered last Friday where he threw
out the Zambian government's application to register the London High Court of
Justice judgment in the Zambian High Court, judge Hamaundu said some arguments
that were devoid of fact and full of legal arguments were extraneous to the
issues at hand.
Judge Hamaundu said having obtained a judgment in its
favour in the London High Court on May 4, 2007, the government (judgment
creditor) applied before the late judge Japheth Banda for leave to register the
said judgment in the Zambian High Court under the provisions of the foreign
judgments (Reciprocal Enforcement) Act, Chapter 76 of the Laws of
"To support that application, the judgment creditor argued that
the judgment which it sought to register would not be liable to be set aside
under the foreign judgments (Reciprocal Enforcement) Act," judge Hamaundu
He noted that the government argued that the judgment was one that
was obtained within her Britannic Majesty's kingdom and was not one that was
obtained under fraud, among other arguments.
"Mr. Justice Banda granted
the Judgment Creditor leave to register the judgment," judge Hamaundu said. "The
judgment creditors (Chiluba and others) then launched this application. Before
it was heard, Mr Justice Banda died. The application was then allocated to me to
deal with. Therefore, the order granting leave to the judgment creditor to
register the said judgment shall be deemed to have been made by
Judge Hamaundu said together with the application, Chiluba,
Faustin Kabwe and Aaron Chungu, herein referred to as judgment debtors, filed
"The affidavit of Dr Chiluba comprises, mainly, of an
outline of the origin and purpose of the ZAMTROP account and an outline of the
events leading to his being charged with criminal offences as well as to the
civil action being commenced against him and fellow judgment debtors in the
London High Court," judge Hamaundu said.
"The rest of the affidavit
consists, mainly, of legal deductions and opinions. The contents of the
affidavit as regards the origin and purpose of the ZAMTROP account and the
events leading to Dr Chiluba's indictment are outside the scope of the issues
that I need to consider in this application. Therefore, I find it unnecessary to
highlight those averments."
Judge Hamaundu pointed out that the contents
of the affidavits that comprise legal deductions and opinions contravene Order V
rules 15 and 16 of the High Court Rules Chapter 27 of the Laws of Zambia.
"Similarly, I find it unnecessary to highlight those legal deductions and
conclusions," judge Hamaundu said.
"There are, however, some paragraphs
which contain certain averments that are relevant to his
Judge Hamaundu then highlighted the issues where Chiluba
averred that after it became clear that their relentless resistance to the
London High Court's jurisdiction would not achieve any desired result and that
their participation in those proceedings would merely legitimize them, they
withdrew from any further participation.
"Those were Dr Chiluba's
averments insofar as they are relevant to the issue at hand," judge Hamaundu
He said in their joint affidavit, Kabwe and Aaron Chungu agreed
with the statements of fact raised by Chiluba in his affidavit.
deponents, then, proceeded to make averments that were devoid of fact but full
of legal argument and other matters which are extraneous to the issues at hand.
Therefore, I find it unnecessary to highlight any of those issues," he
Judge Hamaundu said in the affidavit in support of her application,
another judgment debtor, Stella Chibanda, mainly raised issues in defence of the
claim that was before the London High Court of Justice.
"I am not
considering the merits of the claim that was before the court," judge Hamaundu
said. "I am only deciding whether the judgment of that court should be enforced
by direct registration. Therefore, those issues are irrelevant to the
application at hand. However, she did in a few paragraphs, raise issues that are
pertinent to this application."
Judge Hamaundu further noted that the
Zambian government filed an affidavit in opposition to the judgment debtors'
application to set aside the order granting leave to register the London High
"In that affidavit, the judgment creditor averred as
follows: The claim was brought as part of an effort to recover assets alleged to
have been misappropriated and expatriated during the Presidency of Dr Frederick
Chiluba," judge Hamaundu noted.
He also noted that Chiluba and others
filed further affidavits in which they averred that they had since appealed
against the judgment of the London High Court. Judge Hamaundu said a perusal of
the country's statutes revealed that the foreign judgments (Reciprocal
Enforcement) Act was not the only statute by which all foreign judgments should
be considered for registration.
"The position that emerges from the cases
and the statutes that I have cited is thus; whenever a judgment creditor seeks
to enforce, here in Zambia, a judgment or order made by a foreign court, the
creditor should first consider whether judgments and orders of such foreign
court are enforceable under the Foreign Judgments (Reciprocal Enforcement) Act
or, indeed, under any other written law," judge Hamaundu said.
He said if
such judgments were not enforceable under any of the written laws, then the
creditor should seek to enforce such judgment at common law.
the first issue to be determined in this application is whether the judgment of
the London High Court of Justice is enforceable either under the Foreign
Judgments (Reciprocal Enforcement) Act or under any other written law," judge
"I have searched in our laws, including the 'Applied Laws'
for any other statutory provision by which judgments obtained in the courts of
the United Kingdom can be enforced by direct registration. Other than the
Maintenance (Enforcement) Orders Act and, perhaps, the Matrimonial causes Act
No. 20 of 2007, I have been unable to find any. Of course, those two statutes do
not apply to judgments for payment of money."
Judge Hamaundu said in the
circumstances, the Zambian government should have sought to enforce the London
High Court's judgment by recourse to the common law, under the principles of
"Private International Law" or "Conflict of Laws", as the principles are
"Therefore, in the circumstances of this case, the
judgment creditor ought to enforce the London High Court Judgment at common law
by commencing an action founded on it as a cause of action. These proceedings do
not constitute such an action," said judge Hamaundu.
"For the foregoing
reasons, the judgment debtors' application to set aside the order granting the
judgment creditor leave to register the judgment of the London High Court of
Justice succeeds. I hereby set aside the order that was granted to the judgment
creditor on the 10th July 2007. In view of the legal issues that this matter has
raised, I order that either side bear their own costs."
in an interview yesterday, wondered whether judge Hamaundu's judgment was any
different from Chiluba's acquittal on corruption charges by the Lusaka
magistrates' court recently.
"Is there anything about that, don't you
remember the acquittal?" Sata asked. "So, is there anything for us to be