English order can’t be enforced, registered in Zambia

The Supreme Court of 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;

  1. 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.
  1. 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.
  1. That the Children were now resident in Zambia and their custody was a subject to the Jurisdiction of Zambia
  1. 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;

  1. The principal of registration of foreign Judgments or Orders is on a reciprocal basis.
  1. 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.
  1. That the registration should also have been set aside since Ms Nyendwa was not heard or did not appear before the English High Court.
  1. 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.
  1. 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.
  1. 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.

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14 Responses to "English order can’t be enforced, registered in Zambia"

  1. ongun akay  June 23, 2010 at 22:50

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  2. cm  June 22, 2010 at 12:14

    The Supreme court has acted in the interest of Zambia. You can imagine the pandora’s box that can be opened once this is allowed. If there are case records of UK courts in the past refusing to register Zambian courts’ verdicts purely on account that there is no ‘reciprocal arrangement’ then why should Zambian courts accept theirs? Besides, what can stop all sorts of crazy people and organisations from sueing either the Zambian govt or individual Zambians outside the country and later registering the verdicts here in Zambia? We have to be very careful and not allow ourselves to be led by emotions. This is what some people refer to as fraudulently obtaining judgements just to satisfy one’s ego. Lets follow the normal channel. Why not sue in Zambia and let the due process of the take its course.

    A lot of Zambians have lost children to foreign partners and are not even allowed visits. The country should be seen to protect its own citizens as well.

  3. Volcanologist  June 21, 2010 at 12:07

    The argument on the English order does not say that all cases can be registered but that its excludes certain cases like the one in quaetion. Chiluba’s case is different and Volcanologist will wait for judgement on Chiluba’s case.

  4. big zack  June 20, 2010 at 14:13

    this is nonsense..fjt kafupi is mselling a rat…mwanya…

  5. Monk T  June 20, 2010 at 13:53

    FTJ’s loot has survived..period!

  6. Minisa Jumbe  June 20, 2010 at 13:24

    I work at the court. I saw the statement of claim aagainst Watchdog. It is some Kenyan businessmen who run a cotton company in Kafue. They claim that they have been defamed by an article that appeared here to the effect that ZRA was investigating them for tax evasion. Difficult to see what the comnplaint is because in the statement they admit that ZRA Actually visited then to investigate allegations of tax evasion.

  7. Kibakimani  June 20, 2010 at 13:18

    Pikin
    what is also interesting about the advert is that the plaintiff has not stated what exactly they are compalining about and their Lawyers are Musa dhudia & Company.

    So ZWD, would it be contemptous to just state that XYZ has comenced action against you and their grounds are ABC or the article being complained about is DEF?

  8. Thermometer  June 20, 2010 at 13:14

    Kibakimani, I agree with you, no wonder the case took forever.

  9. Kibakimani  June 20, 2010 at 13:09

    Interesting, so all the noise about the London Jugdement was just what it was. “NOISE”. Who was Mwanawasa trying to fool. Its clear here that if the English Courts cant register judgements from Zambia for whatever reason(including them not meating their standards) it means the Zambian Courts too will not. And Mwanawasa was a good lawyer, he knew all about this but he just wanted to hoodwink us into believing that he was doing something about his friend(on who gave him the presidency) FTJ

    This Chiluba thing was well crafted out. Starting with the disapperance of star witnesses at crucial times to the unexplanable london Court hearings, which were vitually blacked out on the Zambia media except by some ka small paper which brought out alot of suspicious isues surrounding the case.

  10. Pikini  June 20, 2010 at 13:07

    Watchdog, in today’s post there as an advert that you should appear in court on Tuesday for libel. The person who is suing you is hiding himself and not saying who they are. Why don’t you expose them and make this matter a public issue instead of going to appear in chamber. We love you and will support you in anyway against those who want to harm you.

  11. Mukundakufwa Wamulume  June 20, 2010 at 12:37

    there is no Reciprocal arrangement for registration and enforcement of this type of Judgment or Order between Zambia and the United Kingdom.The issue is has there been any agreement? The answer is no. The reason being after Independence the UK were afraid of too many legal suits from Zambia and they have always been of the view our judgements do not meet their standard of proof.Unfortunately so, FTJ was not heard too except for the mad Judge Peter Smith coming to seat in Zambia as an English Court which does not help matters at all. There was also another matter in 1970 when the Norther Electricity company PTy Limited obtained a judgement in Zambia against one Mr. Jaimison who was their employee for breach of contract but the Scotish Court seating with Lord Johnston refused to register the Zambian judgement…

  12. The Legacy  June 20, 2010 at 12:24

    hhhhmmmm this is no brainer, the courts are setting the groinds to free FTJ!!!you have to be dull not to see this.

  13. Mimi  June 20, 2010 at 12:17

    Yes, trick for the High court. Lets hear from you chaps on this plartfom who claim to know the law

  14. rodgers chongwe  June 20, 2010 at 12:16

    interesting news for the so called chiluba UK judgement> I wonder how the high court will decide?

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