This essay endeavors to give a concise legal opinion regarding the case of Zambia’s second

republican President Dr Fredrick Chiluba and the Zambian government which was decided in
the London High Court by a British Judge and the place of that judgment in the Zambian
legal Jurisdiction in view of FOREIGN JUDGEMENTS. The above-mentioned will be
achieved by firstly giving a brief background on foreign judgments and the key terms in the
essay will be defined. The essay will then move on to give a legal opinion regarding the case
of Dr Frederick Chiluba versus the Zambian Government (which was decided by a British
judge in the London High) in view of foreign judgments. Finally, a clear and concise
conclusion will then be drawn based on the facts presented in the essay.

In the case of Zambia’s second republican President Dr Fredrick Chiluba and the Zambian
government1, the two applicants were, respectively, the ninth and the seventh of twenty
defendants in civil proceedings commenced in October 2004 in the United Kingdom by the
Attorney General of Zambia, for and on behalf of the Republic of Zambia. The other
defendants to the civil proceedings included, inter alia, Dr Frederick Jacob Titus Chiluba,
who was President of Zambia between 1991 and 2001. Zambia sought the recovery of large
sums of public money which had allegedly been misappropriated by the ex-President and
others for personal gain.

Simultaneously with the civil proceedings, criminal proceedings in respect of the same acts
were underway in Zambia, brought by the Attorney General against the two applicants, the
ex-President, and two of the other defendants to the civil proceedings, all of whom were
resident in Zambia. As part of their bail conditions, the defendants to the criminal
proceedings had surrendered their passports. They were therefore unable to leave Zambia,
and could not travel to the United Kingdom in order to participate in person in the civil
proceedings there.

Under the Foreign Judgment Act2, a new action is not instituted on the original cause of
action. Before a foreign judgment can be recognized and registered in Zambia it has to meet
several conditions prescribed by the Foreign Judgment Act. The following are the conditions
which must be satisfied before a foreign judgment is registered by the High Court:

Reciprocity

1
Attorney General v Dr Fredrick Jacob Titus Chiluba and others (2010) Z.R 287 (Vol. 1).
2
The Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia.
The Foreign Judgment Act is designed to promote and accord reciprocal treatment of
judgments given by the Zambian courts. Reciprocity is the basis upon which a foreign
judgment may be registered both under the Foreign Judgment Act and common law. The
High Court of Zambia cannot register a foreign judgment unless the provisions of the Foreign
Judgment Act have been extended by Statutory Order to the country in which the judgment
has been obtained. For a Statutory Order to be issued, the President must be satisfied that
when the benefits of the Foreign Judgment Act are extended to judgments from a particular
country similar benefits will be accorded to judgments from the High Court of Zambia.3

Under the Foreign Judgment Act, the following statutory orders have been issued: the
Judgments (Reciprocal Enforcement) (Gilbert and Ellice Islands Colony) Order, (3) the
Judgments (Reciprocal Enforcement) (British Solomon Island Protectorate) Order (4) and
Foreign Judgments (Reciprocal Enforcement) Order.4

The issue of commonwealth countries having reciprocity with Zambia received judicial
interpretation in the unanimous decision of the Supreme Court case of Zanetta Nyendea v
Kenneth Paul Spooner5, Chibomba, J.S stated:

“We have examined the provisions of the Zambian Act. (6) 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 stated 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.”

Therefore, on the authority of the Supreme Court case of Zanetta Nyendea v Kenneth Paul
Spooner, it would appear that there is an established reciprocal recognition of foreign
judgments between commonwealth countries and Zambia. It, therefore, follows that there is
no need for the President to issue an order to extend Part II of the Foreign Judgment Act to a

3
Joshua Mwamulima (2012): Recognition and Enforcement of Foreign Judgments in Zambia.
4
Ibid.
5
SCZ Judgment No. 20 of 2010 (unreported),
Commonwealth country. However, the High Court for Zambia declined to follow this
position in the case of Attorney General V Dr Fredrick Jacob Titus Chiluba and others6.

The High Court for Zambia determined that it was not possible to enforce the judgment from
the United Kingdom under the Foreign Judgments Act because the Foreign Judgment Act
does not apply to the United Kingdom at present on the premise that the High Court was not
able to identify any order of extension by the President of Zambia. The Statutory Order
extending registration under the Foreign Judgments Act to judgments from the United
Kingdom which is part of the commonwealth was missing.7

Judge Hamandu made a correct pronouncement that English judgments cannot be registered
under the Foreign Judgment Act as no statutory order has been issued by the president to
extend English judgment to Zambia. However, he made a flawed conclusion when he stated
that the BCJ ordinance of 1922 that allowed English judgments to be enforced in Zambia was
repealed in 1959 by the Foreign Judgments Act. As explained above the BCJ ordinance of
1922 is still applicable to Zambia and it is the only statute that provides the basis for the
statutory enforcement of English judgments in Zambia. This being the case, the court should
therefore have determined that the procedure used was not provided for under the law
through which the registration was sought as opposed to stating as it did that the British and
colonial Judgments Act was no longer applicable to Zambia.8

A Final, Conclusive, and Enforceable Judgment

The starting point for recognition of a foreign judgment is the “generally recognized rule of
international comity that a court will only recognize a final and valid judgment. The test of
finality was explained by Lord Herschell in the case of Nouvion v Freeman9;

“I think that in order to show that a final and conclusive judgment has been pronounced, 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,

6
(2010) Z.R 287 (Vol. 1).
7
Joshua Mwamulima (2012): Recognition and Enforcement of Foreign Judgments in Zambia.
8
Ibid.
9
[1889] 15 APP Cas 119.
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 think that a
judgment which is of that character can be regarded as finality and conclusively evidencing
the debt, and so entitling the person who has obtained the judgment to claim a decree from
the courts for the payment of that debt”.

A foreign judgment, therefore, is not final if it is liable to alteration or variation by the court
which pronounced it. It therefore, follows that where the pending proceedings instituted by
the defendant in the local country have the effect of varying the judgment, then it is not final.
On the other hand proceeding pending in another foreign country will have no effect as the
pending proceeding in a foreign country cannot alter or vary judgment made by a court which
pronounced it in another jurisdiction.10

The foreign judgment must settle the rights and liabilities of the parties so as to render the
matter res judicata in the country in which it was given. In this regard, interim or
interlocutory, ex parte orders and default judgments that do not finally and conclusively
determine the rights and liabilities of the parties cannot be registered.11

However, 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.

The High Court under the Foreign Judgment Act has no powers to review the foreign
judgment if all formalities have been complied with and if the judgment meets requirements
under the Foreign Judgment Act. 12

In line with the above-mentioned, the judgment given by the High Court of the United
Kingdom was final in that it was not liable to alteration or variation by the court which
pronounced it. The judgment settled the rights and liabilities of the parties so as to render the
matter res judicata in the country in which it was given. As a result, the judgment given in the
London High Court can be enforced in the Zambian Courts.

Judgment should be for a sum of money

10
Michael Freeman (2010): Conflict of Laws.
11
John Greenwood Collier (2001): Conflict of Laws: Third Edition.
12
Joshua Mwamulima (2012): Recognition and Enforcement of Foreign Judgments in Zambia.
The Foreign Judgment Act defines a judgment to mean a judgment or order given or made by
a court in any civil proceedings, or a judgment or order given or made by a court in any civil
proceedings for the payment of a sum of money in respect of compensation or damages to an
injured party. Furthermore, a foreign judgment registered in Zambia must be one for a sum of
money, not being a sum payable in respect of taxes or other charges of similar nature or in
respect of a fine or penalty. Consequently, non-monetary judgments such as maintenance and
custody order, declarations, specific performance, interim relief (relief pendent lite),
multiple/punitive damages, ex parte orders and injunctions cannot be registered under the
Foreign Judgments Act.13 The case of Zanetta Nyendwa v. Kenneth Paul Spooner 14 provides
guidance on this point. In this case, the Supreme Court held that an ex parte Order from
English Court ordering the return of two minor children to the United Kingdom Court was
not capable of registration under the Foreign Judgments Act on the ground that the order was
not for the payment of money and that the order was neither final nor conclusive.

Where the sum payable under a foreign judgment which is to be registered is expressed in a
currency other than the currency of the Republic of Zambia, the judgment will be registered
as if it were a judgment for such sum on the currency of the Republic of Zambia as, on the
basis of the rate of exchange prevailing at the date of the judgment of the original court, is
equivalent to the sum so payable.15

With regards to the above-mentioned Law, non monetary judgments cannot be registered
under the foreign Judgments Act. The judgment rendered in the London High Court was not a
monetary one; hence according to the Judgment Act the judgment cannot be enforced in the
Zambian Courts without an order of extension by the President of Zambia.

Personal status (divorce, matrimonial, inheritance, adoption, insolvency)

Furthermore, actions in personam that is to say matrimonial matters, administration of the

estates of deceased persons, bankruptcy, winding up of companies, lunacy or guardianship of
infants are not enforceable under the Foreign Judgment Act.16 The rule that Matrimonial
matters being expressly excluded from registration and enforcement under the Foreign
Judgment Act was affirmed by the Supreme Court in the case of Zanetta Nyendea v Kenneth
Paul Spooner.

13
Ibid.
14
SCZ Judgment No. 20 of 2010.
15
The Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia.
16
Collins, L, Dicey and Morris (1993): The Conflict of Laws, 12th edition.
This principle further consolidates the decision by the Zambian High Court that the foreign
Judgment could not be enforced because the actions were in personam i.e. a claim made
against a specific person or a right affecting a particular person or group of people.
Therefore, the decision in the London High Court could not be enforced as the actions were
actions in personam.

The foreign court must have had jurisdiction

The High Court does not automatically accept that the foreign court had jurisdiction of the
dispute. In this regard, the High Court will determine the question of jurisdiction in
accordance with the provisions of the Foreign Judgment Act and be satisfied that the foreign
court had jurisdiction in the circumstances of the case.17

The foreign court will be deemed to have had jurisdiction, where the defendant submitted to
the jurisdiction of the foreign 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. Furthermore,
the foreign court will have jurisdiction where the defendant was a plaintiff in, or made a
counter claim in, the proceedings in the original court or agreed to submit to the jurisdiction
of the country of that court.18

In relation to a corporation, the courts will have jurisdiction, if it was resident in, or had its
principal place of business in, the country of that court; or had an office or place of business
in the country of that court. Additionally, the court will have jurisdiction where the
proceedings in that court were in respect of a transaction effected through or at that office or
place.19

Therefore, where the defendant voluntary submits to the jurisdiction of the foreign court,
made a counter claim or was a plaintiff in a matter, the defendant cannot subsequently
repudiate the jurisdiction of the foreign court, where the defendant entered appearance with
the view of defending the matter and not contesting its jurisdiction. On the other hand, the
defendant may subsequently repudiate the jurisdiction of the foreign court on the basis that

17
Joshua Mwamulima (2012): Recognition and Enforcement of Foreign Judgments in Zambia.
18
Ibid.
19
O‘Brien John (1999): Conflict of Laws 2nd edition.
the defendant entered appearance with the view of defending or contesting the jurisdiction of
the foreign court.20

Voluntary appearance on the other hand of the defendant goes to Jurisdiction, the High Court
may refuse to register a default judgment (a judgment which is granted when the Defendant
fails to enter appearance to defend) on the basis that the foreign court did not have
jurisdiction. However, where it is shown that the defendant failed to enter appearance not as a
result of a dispute regarding the jurisdiction of the court before which the matter was being
heard, but as a result of his admission of liability; the default judgment may be final enough
to be capable of registration in Zambia. Similarly, where a foreign court accepted a clause
conferring exclusive jurisdiction on the foreign court, the foreign court will be deemed to
have had jurisdiction over the matter provided the defendant voluntarily entered appearance. 21

In an action in which the subject matter is immovable property, or in an action in rem of

which the subject matter is movable property, the foreign court is deemed to have jurisdiction
if, at the time of the proceedings, the property in question was situated in the country of that
court. In the case of a judgment given in an action other than those aforesaid, the original
court is deemed to have jurisdiction if its jurisdiction is recognized by the registering court. 22

The question of jurisdiction under the Foreign judgments Act is subject to qualification that
the foreign court will not have jurisdiction where the subject matter of the proceedings is
immovable property outside the country of the original court; or if any dispute should be
settled other than by proceedings in the foreign courts. If the judgment debtor being a
defendant in the original proceedings was a person, who under the rules of public
international law was entitled to immunity from the jurisdiction of the courts of the country
of the original court and did not submit to the jurisdiction of that court. All the above
conditions need be to be satisfied before the foreign judgment can be registered and enforced
in Zambia.23

In the Chiluba case, the defendant was a plaintiff and did not originally enter an appearance
with the view of contesting the court’s jurisdiction. As has been stated above, where the
defendant voluntary submits to the jurisdiction of the foreign court, made a counter claim or
was a plaintiff in a matter, the defendant cannot subsequently repudiate the jurisdiction of the

20
Ibid.
21
Joshua Mwamulima (2012): Recognition and Enforcement of Foreign Judgments in Zambia.
22
John Greenwood Collier (2001): Conflict of Laws: Third Edition.
23
Joshua Mwamulima (2012): Recognition and Enforcement of Foreign Judgments in Zambia.
foreign court, where the defendant entered appearance with the view of defending the matter
and not contesting its jurisdiction. Hence, the High Court correctly held when it stated that
the London High Court judgment could not be registered in Zambia.

In conclusion, the essay has shown that the Zambian High Court made a sound decision by
stating that English judgments cannot be registered under the Foreign Judgment Act as no
statutory order has been issued by the president to extend English judgment to Zambia. Even
though the judgment settled the rights and liabilities of the parties so as to render the matter
res judicata in the country in which it was given and as a result the judgment given in the
London High Court could have been enforced in the Zambian Courts, the other Conditions
for Registering a Foreign Judgment were not satisfied and hence the judgment could not be
registered.