English order can’t be enforced, registered in Zambia
On June 17, 2010, The Supreme Court of Zambia set aside an English order which a British citizen wanted to be registered and enforced in Zambia.
Justices Sandson S. Silomba, Marvin Mwanamwambwa and Hilda Chibomba would not hear of it.
This was in the matter between Zanetta Nyendwa a Zambian woman and Kenneth Paul Spooner a British national and resident.
On 12th January 2009 the High Court registered an ex-parte Order from the Family Division of the High Court of Justice in England.
The facts are that Zanetta Nyendwa and Kenneth Paul Spooner co-habited together until they separated through a Separation Agreement dated 14th March 2010. The two have minor children, Devian Nicholas Spooner and Caelen Alexander Spooner (3&5yrs as at 2008) who are British nationals.
On 20th November 2008, Spooner obtained an ex-parte order which compelled Zanetta Nyendwa (the mother) to return the children to UK following her failure to do so after a two-week holiday.
Armed with this English Order, Spooner came to Zambia and applied in the High Court of Zambia under the Foreign Judgments- (Reciprocal and Enforcement) Act of 1933 to register and enforce this Order. The High Court registered the English Order.
Zanetta Nyendwa through her lawyers Musa Dudhia &Company applied to have the Judgment set aside. The High Court refused to set aside English Order directing Nyendwa to pursue this matter in Britain. Spooner was represented by Musa Adams & Company.
Zanetta Nyendwa appealed to the Supreme Court filing supporting grounds with 4 grounds arguing her case and which were;
- That the High Court erred in law when it registered an English Order under the Foreign Judgment Reciprocal and Enforcement Act which is not applicable in law.
- The High Court failed to take into account Rule 9 of the Foreign Judgment Reciprocal Enforcement Act which requires the registering party to give adequate notice and time to the other party to allow them time to consider an application to set aside the said order.
- That the Children were now resident in Zambia and their custody was a subject to the Jurisdiction of Zambia
- That the Separation Agreement signed between the parties was not valid in law.
On 17th June 2010 the Supreme Court sitting with a Coram of three rules that;
- The principal of registration of foreign Judgments or Orders is on a reciprocal basis.
- That under the Act, matrimonial and family matters are expressly excluded from registration and enforcement and that this type of English Order was not capable of registration under the Laws of Zambia.
- That the registration should also have been set aside since Ms Nyendwa was not heard or did not appear before the English High Court.
- The Act also excludes from registration or application matters relating to guardianship of infants, bankruptcy proceedings, and matrimonial causes, deceased’s estate, lunacy e.t.c. That the High Court should have set aside the English Order on this ground alone that excludes matrimonial matters from registration as cited by the Act.
- That Mr. 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. That Spooner should have applied in Zambia and not England for his claims.
- That Zambia is not a party and is a non-Convention Country to The Hague and other Conventions cited in relating to children.
The Supreme Court set aside the English Order.