Enforcement of Judgments 2020

Last Updated June 24, 2020

Zambia

Law and Practice

Authors



Simeza, Sangwa & Associates (SSA) is a full-service, Lusaka-based law firm with a focus on both contentious and non-contentious business. The firm is one of the largest and fastest-growing in the country, and dedicated to providing the highest levels of client service, skill and expertise to both corporate and individual clients. The SSA team consists of 14 advocates, ten legal support staff and eight administrative staff. Simeza, Sangwa & Associates is part of TagLaw and through that membership is able to offer clients more than 150 quality legal firms in over 80 countries. SSA has a large dispute resolution department with extensive experience in commercial litigation and the enforcement of judgments. SSA is external legal counsel to several commercial banks and corporate entities and acted as legal counsel to the Trade and Development Bank (formerly PTA Bank) in respect of various financing projects in Zambia.

There are currently no statutory options a litigant can employ to identify the asset position of another party. However, common law remedies such as freezing and seizing orders are applicable in Zambia and may be employed by a litigant to ascertain certain information of another party.

English Law is extended and is consequently applicable in Zambia by virtue of the English Law (Extent of Application) Act, Chapter 11 of the Laws of Zambia, The British Acts Extensions Act, Chapter 10 of the Laws of Zambia, and governing Acts of Parliament or Statues of the relevant Zambian courts. As a result, a litigant is able to apply and obtain freezing orders (Mareva injunctions) and seizing orders (Anton Pillar orders) in the Zambian Courts.

Mareva Injunctions

Mareva injunctions are granted in an action in which a party seeks to recover their property. In those actions, the Court has jurisdiction to grant an interlocutory injunction restraining the disposal of property over which such party has proprietary claim. The single most significant feature of the Mareva jurisdiction in Zambia, as is under English Law, is that it goes beyond the mere restraint and enables the Court to grant a party to an action not only an interlocutory injunction restraining the other party from disposing of, or merely dealing with, their assets, being assets over which the former asserts no proprietary claim, but which after judgment may be attached to satisfy a money judgment.

Generally, one of the hazards facing a party in litigation is that, come the day of judgment, it may not be possible for them to obtain satisfaction of that judgment fully or at all. Through a Mareva injunction, a defendant may be prevented from artificially creating such a situation. Furthermore, a defendant is not permitted to thwart orders which the Court may make.

Remedies

It should, however, be pointed out that there is a clear distinction between other remedies available where a plaintiff asserts that the assets in question belong to them and that the dealings with them should be enjoined in order to protect his proprietary rights and Mareva injunctions granted where the party does not claim any interest in the assets and seeks an inhibition of dealings with them simply in order to keep them available for a possible future execution to satisfy an unconnected claim.

Anton Pillar orders are also available in Zambia and when granted require the defendant or respondent to permit certain persons to enter their premises, to search for documents or other articles of moveable property, and to take them away and retain them for the duration of the main matter. Applications for Anton Pillar orders are made an obtained ex-parte or without notice, as it is thought that the defendant or respondent knew that the order was about to made they would conceal, remove or destroy the documents or articles in question. Anton Pillar orders are discretionary following the hearing the application.

There are various judgments and orders that a party to a suit may obtain from Court in both Superior and Subordinate Courts in Zambia.

Judgment on Admission

The law allows a party to apply to Court for Judgment on Admission for admissions that the other party may have made either as facts of the whole case or part a case. The admissions may have been, by way of a party’s own pleading where such a party does not specifically traverse the issues raised in a pleading served on them.

The Party may also admit part or the whole case of another party’s case through a filed Notice admitting the whole of another party’s case or part of the case. Judgment on Admission may also be made by express admissions which may be in the form of documents. An application for judgment on admission is made by way of summons and an affidavit.

Interim, Interlocutory and Final Injunctions

An Injunction is an order of Court that either restrains a party from taking a positive step or compels a party to take positive step. An injunction that restrains a party from taking a positive step or from acting is referred to a prohibitory injunction. An Injunction that on the other hand compels a party to take a positive step or to act is referred to as a mandatory Injunction. The considerations for the granting of a prohibitory injunction are different from those a litigant ought to show when seeking a mandatory injunction.

An order of interim injunction is granted ex-parte when a party commences the action and makes an application for an injunction while pending the inter-partes hearing. If the interim injunction is confirmed it becomes an interlocutory injunction and subsists until the matter is disposed on the delivery of judgment. The injunction that a party may have sought in the originating process is referred to a final injunctions or perpetual injunction. The interim and interlocutory injunction are therefore considered as interim reliefs.

Judgment in Default of Appearance and Defence

One can enter a Judgment if Default of Appearance and Defence when the prescribed time within which to respond to originating process lapses. The prescribed time is dependent on the Court in which the matter is commenced. In the Subordinate Court the Defendant has 15 days within which to respond to an originating process. The matters commenced in the High Court are governed by a Practice Direction Number 4 of 1977 which will dictate whether a party responds to an originating process with 14 days, 21 days, 30 days or 42 days depending on is the location of the Defendant from the Registry where the originating process is issued.

If a party does not respond to the originating process within the prescribed period, as the case may be, the party that originated the process is at liberty to enter Judgment in Default of Appearance and Defence. The party entering the Judgment will have to prove that service was indeed made on the other party which is proven by the filing of an affidavit of service.

Consent Judgments

Granted when parties may enter into judgments where all the parties to a cause or matter agree upon the terms in which a judgment should be given. The parties either by themselves or through their representatives will then sign the consent judgments.

Summary Judgment

Summary judgments granted against the defendant in actions where a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff claims and the court is satisfied that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed.

Order of Interim Attachment of Property

If the defendant, in any suit for an amount or value of ZMW50,000 upwards, with intent to obstruct or delay the execution of any decree that may be passed against them, is about to dispose of their property, or any part thereof, or to remove any such property from the jurisdiction, the plaintiff to that suit may apply to the Court or a Judge, either at the time of the institution of the suit, or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfil any decree that may be made against them in the suit, and, on their failing to give such security, direct that any property, movable or immovable, belonging to the defendant, be attached until the further order of the Court or a Judge.

Order Arresting an Absconding Debtor

This is an order of interim relief that a party to a suit may obtain against the other party. It is governed by Section 10 of the Debtors Act, Chapter 77 of the Laws of Zambia. By it, the plaintiff in any action before the High Court or any subordinate court proves at any time before final judgment, by evidence on oath, to the satisfaction of the court that he has good cause of action against the defendant to the amount of ZMW20 upwards, and that there is probable cause for believing that the defendant is about to quit Zambia and that they need to be he be apprehended to prevent this.

The applicant ought to show that in the absence of the defendant from Zambia, such an applicant will be materially prejudiced in the prosecution of their action or in their obtaining satisfaction therein. The Applicant may merely show that the defendant has disposed of or removed out of Zambia their property or any part thereof and the execution of any judgment or order will be thereby obstructed or delayed.

If the Court is satisfied with the foregoing, the Court may, in the prescribed manner, order a defendant to be arrested and imprisoned for a period not exceeding six months, unless or until they have given the prescribed security, not exceeding the amount claimed, in the action that they will not leave Zambia without the leave of the court.

Order of Appointment of a Receiver

A Receiver is appointed by the court when a charge of a company has become enforceable. Charges are usually mortgages or agreements to execute a mortgage or agreements in place while a seller occupies a property the subject of a sale until the full purchase is paid. Insolvency matters are governed by the Insolvency Act 2017 and per section 4(1) of the Act the Court may, on the application of a charge, a appoint a receiver of the property.

Final Judgment

This is granted once the Court hears and determines the matter on the merits. Final judgments grant parties’ final orders or reliefs.

There are several methods that a judgment creditor may employ in order to obtain compliance or satisfaction of a judgment. The different methods are found in the legislation/statutes that govern the various Courts.

A judgment creditor may use more than one method of enforcement at the same time. There is no need for one to seek leave of court before enforcing a judgment or order of the court except in any of the following circumstances:

  • If period of six years has elapsed since the date of delivery of the judgment;
  • If the party entitled to or liable to execution under the judgment is deceased; and
  • If goods sought to be seized are in the hands of a Receiver.

Per Order 42 Rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia all property whatsoever, real or personal, belonging to a party against whom execution is to be enforced, and whether held in their own name, or by another party in trust for them or on their behalf (except the wearing apparel and bedding of themselves or their family and the tools and implements of his trade if any, to the value of five hundred kwacha or, in the case of a farmer, one million kwacha), is liable to attachment and sale in execution of the decree.

Writ of Fieri Facias

A writ of fieri facias commonly referred to as a "writ of fifa" is the most popular mode for enforcement of a money judgment in Zambia and it involves the seizure and sale of the judgment debtor’s goods. The point to note is that the amount payable to be endorsed on the writ of fifa must be quantified and must have been ordered by the court. A judgment creditor must file a praecipe (request) for the issue of the writ of fifa which must be signed by the legal practitioner representing the judgment creditor.

The writ of fifa is popular mode of enforcement of a judgment debt due to the speediness and efficiency of enforcing a money judgment that comes with it.

Common in the writ of fifa process is walking possession wherein the bailiff may enter into agreement with the judgment debtor whereby it is agreed that the bailiff will take walking possession of the goods. By a walking possession, the goods remain where they are until payment or sale, the judgment debtor undertaking to the bailiff not to remove or damage them.

Garnishee Proceedings

A judgment creditor may enforce a judgment or order to recover a judgment debt by attaching money owed to the judgment debtor by a third party through a process known as garnishee proceedings. A judgment creditor may obtain an order, a garnishee order, against a third party, known as a garnishee, whereby the money or debt or a portion of the money or debt owed by the garnishee to the judgment debtor is attached to discharge or pay the money due to the judgment creditor.

For one to employ this method for enforcement of a money judgment, there must be in existence a judgment or order for a specific sum of money. There must be a quantified debt to be attached and thus the debt must be due.

Attaching a debt by way of garnishee proceedings is a two-stage process.

Stage one

One must first apply for an order nisi or for leave to serve notice on the intended garnishee. The application is made ex-parte. The ex-parte order is for the garnishee to show cause. In the meantime, the money or debt the subject of the proceedings is attached.

In the event that the garnishee is the financial institution which holds the judgment debtor’s deposits, the application must, inter-alia, state the name and address of the branch where the judgment debtor’s account is believed to be held.

Until the next hearing when the court will decide whether or not to make the order final, the garnishee will not make any payment which reduces the amount attached.

Stage two

In the second stage of the proceedings involves an inter-parte hearing for the final order. The garnishee must be given an opportunity to show cause why an attaching order should not be made. The burden of showing why an order nisi should not be made final is on the judgment debtor.

As per Order 49 r3(1)(a) of the Rules of the Supreme Court of England 1968, which is still applicable in Zambia, the order nisi must be served on the garnishee personally at least 15 days and on the judgment debtor at least seven days before the time appointed by the order for the further consideration of the matter.

Once the order is served it binds the garnishee from the date of service of the order.

Writ of Delivery

When a plaintiff obtains a judgment or order for the delivery of specific goods that the judgment or order may be enforced by way of a writ of specific delivery. Similarly, if the judgment or order is for the recovery of specific goods or payment of their assessed value, the judgment or order may be enforced by a writ of delivery or their assessed value.

A judgment or order for the delivery of any goods which does not give a person against whom the judgment is given or order made the alternative of paying the assessed value of the goods may be enforced by way of writ of delivery to recover the goods without alternative provision for recovery of the assessed value thereof (writ of specific delivery)

Writ of Possession

Judgments or orders for the recovery of land are enforced by way of a writ of possession. A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued, without leave of the Court except where the judgment or order was given or made in a mortgage action.

Equitable Execution: Appointment of a Receiver

Equitable execution is a process which the Court allows for the purpose of enabling a judgment creditor to obtain payment of his debt when the position of the real estate is such that ordinary execution will not reach it.

Where an application is made for the appointment of a Receiver by way of equitable execution, the Court in determining whether it is just or convenient that the appointment should have regard to the amount claimed by the judgment creditor, the amount likely to be obtained by the Receiver and the probable costs of the Receiver’s appointment and may direct an inquiry on any of these matters or any other matter before making the appointment.

Contempt Proceedings

Contempt proceedings may be used to enforce a judgment where a person is required by the judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged time. Contempt proceeding may also be used where a person disobeys a judgment or order requiring him to abstain from doing an act. Contempt proceedings require the Judgment Creditor to obtain leave before being commenced against an alleged contemnor.

Writ of Sequestration

The writ of sequestration is a most drastic method of enforcing a judgment or order, and therefore issued only with the leave of the Court which is obtained by motion to a Judge. In fact, sequestration is a process of contempt; and upon an application for sequestration the question for the Court is whether a contempt has been committed, and the Court has no jurisdiction otherwise to declare the rights of the parties inter se as regards any of the facts alleged in support of the application. On the other hand, it is not necessary for the party applying to show that there is property which can be seized under a sequestration.

The judgments or orders that may be enforced by writ of sequestration are those that require a person to do an act within a specified time, extended if necessary, and those that require a person to abstain from doing an act. Negative orders are therefore enforceable by sequestration. The overriding condition subject to which a positive judgment or order may be enforced by sequestration is that it must specify the time within which the required act must be done.

Usually, no such time will be specified in a judgment or order to pay money to some other person, or to give possession of land, or to deliver goods, and, generally, such time will not be specified unless the person required to act is shown to be willfully refusing or neglecting to do it.

Attachment of Earnings

An application for attachment of earnings is only available against a person who has a maintenance order against them. Maintenance applications are granted in matrimonial causes or children’s matters. An application for an attachment of earnings order by a person entitled to receive payments under a maintenance order is made to the Court or a Judge by summons and the respondent to the application shall be the person liable to make payments under the maintenance order.

Where a maintenance order has been registered and has been entered under its cause number and title, any application for an attachment of earnings order is made by summons. The summons is supported by an affidavit by the applicant stating-

  • particulars of the maintenance order;
  • the date of the service of the maintenance order on the defendant or, if the maintenance order has not been served, the reason why service has not been effected;
  • the amount of any arrears due to the applicant under the maintenance order;
  • particulars of any proceedings which have been taken for the enforcement of the maintenance order;
  • the name and address of any person believed to be the defendant's employer; and
  • any of the following particulars relating to the defendant as are known to the applicant:
    1. the full name and address;
    2. age and place of work;
    3. the nature of their work; and
    4. any other facts relevant to the means of the defendant as are known to the applicant.

Bankruptcy Proceedings

These are proceedings instituted against a natural Judgment Debtor for failure to liquidate sums owed to a Judgment Creditor. If a Judgment Creditor has obtained a final judgment or final order against a Judgment Creditor for any amount if the execution is not stayed, the Judgment Creditor issues bankruptcy notice and serves on the Judgment Debtor. Upon service of the said notice, the Judgment Creditor has an obligation to either comply with the requirements of the notice or satisfy the court that he has a counterclaim, set-off or cross demand which equals or exceeds the amount of the judgment debt or sum ordered to be paid, and which he could not set up in the action in which the judgment was obtained, or the proceedings in which the order was obtained.

A Judgment Creditor cannot institute bankruptcy proceeding which is by petition unless:

  • the debt owing by the debtor to the petitioning creditor, or, if two or more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, amounts to K100; and
  • the debt is a liquidated sum, payable either immediately or at some certain future time; and
  • the act of bankruptcy on which the petition is grounded has occurred within three months before the presentation of the petition; and
  • the debtor, if they:
    1. are domiciled in Zambia;
    2. within a year before the date of the presentation of the petition has ordinarily resided is Zambia;
    3. had a dwelling-house or place of business in Zambia;
    4. have carried on business in Zambia personally or by an agent or manager; or
    5. are, or within the said period have been, a member of a firm or partnership of persons which has carried on business in Zambia by means of a partner or partners, or an agent or manager.

Liquidation Proceedings

Liquidation proceedings are instituted where a Judgment Debtor is unable to liquidate sums owed to a Judgment Creditor. The liquidation proceedings in such a case are at the instance of a Judgment Creditor.

The costs involved in enforcement and dependent on the mode of enforcement used.

However, by way of example the law requires that judgment cannot be enforced unless three days after delivery of a judgment unless the Court orders otherwise. A judgment in default of appearance and defence can only be enforced seven days after its entry. A party that entered the default Judgment must serve the default judgment on the other party.

There is, however, no obligation on the party in whose favour a judgment on the merits is determined to serve such a judgment.

There are no post judgment procedures that a Judgment Creditor can use to determine the Judgment Debtor’s assets.

There are several ways of challenging domestic judgments. The mode of used to challenge a particular domestic judgment depends on the nature of such a judgment.

Appeal

Appealing a judgment involves an aggrieved party of a judgment escalating the matter to a higher Court or Tribunal. As a general rule, appealing against judgments is by way of right, that is to say, an aggrieved party does not need to obtain leave to appeal the Judgment. However, where leave ought to be obtained, as is the case in certain courts, the aggrieved party must firstly obtain leave to appeal before launching the appeal in the superior court.

The party intending to appeal must make an application to stay the said judgment pending the hearing and determination of the appeal. The application to stay must show the prospects of success and should therefore exhibit the grounds that the party intends to raise on appeal in assailing the judgment.

Setting Aside a Judgment in Default of Appearance and Defence

A regular judgment in default of appearance and defence or a judgment in default entered in accordance with the rules of court may be set aside. A party seeking to set aside such a judgment ought to however show that the reasons for not entering appearance and not responding to the originating process by filing a defence and also show that such a Defendant has a defence on the merits.

In practice, the Courts usually set aside the judgment to ensure that the matter is heard on the merits. Until the default judgment is set aside, it is regarded as being good judgment. If A party aggrieved with an irregular judgment in default of appearance and defence, that is a judgment not properly entered in accordance with the rules of Court, is not set aside but is instead appealed against.

To ensure that the application to set aside or appeal the default judgment is not rendered nugatory or academic, the aggrieved party must apply to stay such a default judgment pending the appeal or application to set aside as the case may be.

Setting Aside Consent Orders and Mediation Settlement Orders

Unlike other domestic judgments, a party aggrieved with a consent judgment ought to apply to set it aside. A party seeking to set aside a consent judgment has to commence a fresh action. In addition, a party seeking to impugn a consent judgment has to establish that the consent judgment was obtained by fraud, illegality, misrepresentation, or that is against public policy or that that party was not a party to those proceedings. Consequently, a consent judgment clearly can be set aside on any ground that would set aside an ordinary contract.

The rationale for commencing a fresh action is that one cannot plead fraud, illegality and other element that may vitiate consent through an affidavit as the party seeking to set aside the consent judgment must give particulars in attempt to do so.

Like a consent judgment, a party aggrieved with a mediation settlement order, ought to set it aside. Equally, to set it aside the party must equally commence a fresh action.

The position in Zambia is not one that states that particular judgments are unenforceable, but rather that judgments against particular institutions or bodies cannot be enforced in the same way as other domestic judgments. Examples of such judgments are judgments against the following:

Local Authorities

Article 160 of the Zambian Constitution prevents a person who obtains a judgment against a local authority from enforcing the judgment against the local authority unless after one year from the date of the delivery of the judgment

Zambia Development Agency

Section 11A of the Zambia Development Act 2006 prevents enforcement of judgment against the Agency. The section states provides that where any judgment order is obtained against the Agency, no execution, attachment or process of any nature shall be issued against the Agency or against any property of the Agency, but the Agency shall cause to be paid out of its revenues such amount as may, by the judgment order, be awarded against the Agency to the person entitled to such amount.

Bank of Zambia

The Bank of Zambia Act, Chapter 360 of the Laws of Zambia prevents enforcement of judgment against the Reserve Bank. Per section 59 of the Act, Chapter 360 of the Laws of Zambia provides that, notwithstanding anything to the contrary contained in any written law, where any judgement or order has been obtained against the Bank, no execution or attachment, or process in the nature thereof, shall be issued against the Bank or against any property or asset of the Bank; but the Bank shall cause to be paid such amounts as may, by the judgement or order, be awarded against the Bank to the person entitled thereto.

Every judgment entered at any Registry of the Court for a fixed or liquidated sum of money is recorded by the proper officer in the Judgments Register and kept there. Any other judgment or order is recorded in the Civil Causes Register. Every Judgments Register and the Judgments Section of every Civil Causes Register is open for public inspection during the hours in which a Registry is open to the public.

However, one is not able, through the inspection of the public registers, able to tell whether a particular judgment debtor has paid the debt to the judgment creditor under a judgment.

The fundamental principle of territorial sovereignty dictates that a judgment obtained in a particular jurisdiction shall be recognised and enforced in that jurisdiction and cannot, in the absence of international agreement, be recognised by the courts of a foreign jurisdiction. Similarly, in Zambia, there is no legislation to support and allow automatic recognition and enforcement of foreign judgments. Whilst Zambia is party to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, 1971, it has not been codified into Zambian law.

Zambia, like most other countries, however, has provided for the recognition and enforcement of foreign judgments by legislating the Foreign Judgments (Reciprocal) Enforcement Act Chapter 76 of the Laws of Zambia to address the problem of the absconding debtors to foreign judgments. The purpose of the legislation is to facilitate enforcement of foreign judgments without the requirement to re-litigate a dispute.

The Foreign Judgments Act provides for the enforcement in Zambia of judgments given in countries which accord reciprocal treatment to judgments and legal issues usually come up with regards judgments from non-reciprocal countries. At present, the Foreign Judgments (Reciprocal) Enforcement Act has only been extended to Gilbert and Ellice Islands Colony and the British Solomon Islands. All other applications from other countries are at the discretion of the court.

Once a foreign judgment has been recognised and registered, the judgment creditor may proceed to enforce the registered judgment. A judgment registered under the Foreign Judgment Act for the purposes of execution, has the same force and effect as if the judgment had been a judgment originally given in by the High Court and entered on the date of registration.

It therefore follows that a foreign judgment would be enforced using the modes one would enforce a domestic judgment.

Judgments from countries that do not offer Zambian judgments reciprocal recognition and enforcement cannot be registered and consequently, cannot be enforced in Zambia.

In addition, the President, may by statutory order, add a country to the non-recognition list if the President is of the view that recognition and enforcement accorded by the courts of those countries is substantially less favourable than that accorded by the Zambian courts of Zambia to judgments of the superior courts of that country.

The President may by a subsequent statutory order vary or revoke any non-recognition order previously made.

A party that seeks to enforce a foreign judgment ought to make an application to High Court which has jurisdiction to hear an application for the enforcement of such a foreign judgment.

A person, being a judgment creditor under a judgment may apply to the High Court at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court.

When making the application, the applicant must show that the Judgment has been wholly satisfied or that it could not be enforced by execution in the country of the original court. The affidavit of the application must:

  • exhibit a copy of the judgment issued by the original court and authenticated by its seal and a translation of the judgment certified by a notary public or authenticated by affidavit;
  • state that the applicant is entitled to enforce the judgment;
  • as the case may require, state either that at the date of the application the judgment has not been satisfied, or if the judgment has been satisfied in part, what the amount is in respect of which it remains unsatisfied;
  • that at the date of the application the judgment cannot be enforced by execution in the country of the original court;
  • if the judgment were registered, the registration would not be, or be liable to be, set aside under section six of the Act;
  • specifying the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the time of registration.

Whilst not predictable, the costs and time taken to enforce foreign judgments is similar to that of domestic judgments which is approximately three to six months.

On an application made by any party against whom a registered judgment may be enforced, may make an application to set aside the foreign judgment, if the registering court is satisfied of any of the following:

  • that the judgment is not a judgment to which [Part 2 of] the Act applies or was registered in contravention of the Act;
  • that the courts of the country of the original court had no jurisdiction in the circumstances of the case;
  • that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on them in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable them to defend the proceedings and did not appear;
  • that the judgment was obtained by fraud;
  • that the enforcement of the judgment would be contrary to public policy in the Republic of Zambia; or
  • that the rights under the judgment are not vested in the person by whom the application for registration was made.

Legal issues only arise if the local courts refuse to recognise or register an award. In Zambia, the recognition of an award is the only means through which a successful party to an arbitration may enforce the monetary sums awarded.

The primary legislation governing the recognition and enforcement of awards is the Arbitration Act 2000 (“the Act”). Equally domesticated into the local laws by the Arbitration Act 2000 is the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

Section 18(1) of the Act provides that an arbitral award shall be recognised as binding regardless of the country of its publication. A party wishing to enforce an award must follow the provisions of the Arbitration (Court Proceedings) Rules 2001 by issuing ex parte originating summons supported by an affidavit.

High Court Refusal

By Section 19 of the Act, the High Court may refuse recognition or enforcement of an award on the following grounds:

  • The party against whom the award it is sought to be registered proves:
    1. incapacity of a party or invalidity of the arbitration agreement;
    2. lack of sufficient notice of appointment of the arbitrator or proceedings;
    3. the award deals with a dispute not contemplated under the arbitration;
    4. the composition of the tribunal is not in accordance with the parties agreement;
    5. the award is not binding on the parties or has been set aside or suspended; or
  • The court finds:
    1. the subject matter of the dispute is not capable of settlement by arbitration under Zambian law;
    2. recognition or enforcement of the award would be contrary to public policy; or
    3. the award was induced or effected by fraud, corruption, or misrepresentation.

In the event that the High Court grants permission to register the award, the Registrar of the High Court records the award in a register. Following registration by the Registrar, the applicant will then need to file notice of registration of the award, which they serve on the other party.

It is critical to note that the registration of the award does not compromise the confidential nature of arbitration proceedings. This is because with registration, the treatment of an award is as if it were a debt, only showing the monetary sums awarded and not the contents of the award

There is only one type of arbitral award in Zambia and, therefore, only one process of enforcing them.

This is not applicable in Zambia and the only situation in which arbitral awards will not be enforced is if the award is not recognised by the Court pursuant to Section 19 of the Arbitration Act 2000.

There are five steps involved in the enforcement of arbitral awards.

Preparation of the Application

An ex parte originating summons for registration and enforcement of an award, in the form of HC Arb 3 as set out in the annexure of the Arbitration Rules, is filed into court. This ex parte originating summons is accompanied by an affidavit wherein it is deposed that the applicant is entitled to enforce the award and that until then award has not been settled. The affidavit will exhibit duly authenticated and/or certified true copies of the award and arbitration agreement.

In addition, an order is filed in anticipation of the Court granting the application to register and enforce the award.

Filing of an Award at the High Court

The competent court for purposes of registration of an award is the High Court. It is prudent to note that there are two divisions in which the application may be filed, being, the Principal Registry and Commercial Registry.

It has been established by practice that awards of the value of ZMW500,000 and less are registered in the Principal Registry while awards exceeding ZMW500,000 are to be registered in the Commercial Division.

Hearing of the Application

After filing, the application is allocated to a Registrar or Deputy Registrar who then set a return date for the hearing. The applicant is the only attendee of the proceedings unless it is directed otherwise, and if directed as such the other party may then oppose the application. Following a favourable hearing, the Court executes the order granting permission to register and enforce an award.

Preparation of Notice of Registration of Award

Following the granting of the order, the applicant prepares a written notice of the registration of the award which, once filed, is served on the other party. The notice must state the full particulars of the award registered and order of registration, date of registration and the particulars of the respective parties, including the other parties right to apply to set aside the registration.

Enforcement of Arbitral Award

The applicant, who is then called judgment creditor, can only execute on a registered award after the expiration of the period specified in the order granting permission to register the award. After the lapse of the period, the judgment creditor may issue out of the High Court a writ of fieri facias instructing the Sheriff of Zambia to execute on the judgment debtor’s property. The judgment creditor may also use other means of enforcement such as writs of possession and elegit.

The costs involved in enforcing an arbitral award in the Commercial Registry are as follows:

  • ZMW500.00 for the ex parte originating summons;
  • ZMW50.00 for the affidavit in support of the ex parte summons;
  • ZMW25.00 for the order granting registration and enforcement of the award; and
  • ZMW100.00 for notice of registration and enforcement of the award.

Conversely, the costs in the Principal Registry are as follows:

  • ZMW167.00 for ex parte originating summons;
  • ZMW8.00 for the affidavit in support of the ex parte originating summons;
  • ZMW25.00 for order granting registration and enforcement of the award; and
  • ZMW25.00 for the notice of registration and enforcement of the award.

The length of time is tied to the registry in which the application is made. This is three to six months in the Principal Registry, and three to siz weeks in the Commercial Registry, owing to the fast-track court provisions that apply to matters in the Commercial Registry.

The only available means through which a dissatisfied party may contest the registration and enforcement of an award is by challenge. Arbitral awards are final and un-appealable and a challenge under the Act is the only option available to challenge enforcement.

Challenges are provided for in Section 17 of the Act, which provides the setting aside of an arbitral award on the following grounds:

  • The party against whom the award it is sought to be registered proves:
    1. incapacity of a party or invalidity of the arbitration agreement;
    2. lack of sufficient notice of appointment of the arbitrator or proceedings;
    3. the award deals with a dispute not contemplated under the arbitration;
    4. the composition of the tribunal is not in accordance with the parties agreement; or
    5. the award is not binding on the parties or has been set aside or suspended; or
  • The court finds:
    1. the subject matter of the dispute is not capable of settlement by arbitration under Zambian law;
    2. recognition or enforcement of the award would be contrary to public policy; or
    3. the award was induced or effected by fraud, corruption, or misrepresentation.

The second means of challenging an award is by opposing its registration and enforcement. Section 19 of the Act is instructive and sets out the grounds similar those listed above as the grounds of the challenge.

Further, there is Zambian case law precedent of the highest court, the Supreme Court, setting aside an arbitral award. The Supreme Court in the case of Zambia Telecommunications Co Ltd v Celtel Zambia Ltd (SCZ No 34 of 2008) set aside an arbitral award for being contrary to public policy. In its reasoning, the Court found that there was a question of perceived bias when a Tribunal member failed to disclose the fact that he had been appointed to another tribunal by one of the advocates to the arbitration proceedings.

Simeza, Sangwa & Associates (SSA)

Vitumbiko Office Park, Stand 4713
Cnr United Nations/Ng’umbo Roads
Longacres
P.O. Box 36824
Lusaka, Zambia

+260 211 227574

+260 211 220568

info@simezasangwa.com www.simezasangwa.com
Author Business Card

Trends and Developments


Authors



Simeza, Sangwa & Associates (SSA) is a full-service, Lusaka-based law firm with a focus on both contentious and non-contentious business. The firm is one of the largest and fastest-growing in the country, and dedicated to providing the highest levels of client service, skill and expertise to both corporate and individual clients. The SSA team consists of 14 advocates, ten legal support staff and eight administrative staff. Simeza, Sangwa & Associates is part of TagLaw and through that membership is able to offer clients more than 150 quality legal firms in over 80 countries. SSA has a large dispute resolution department with extensive experience in commercial litigation and the enforcement of judgments. SSA is external legal counsel to several commercial banks and corporate entities and acted as legal counsel to the Trade and Development Bank (formerly PTA Bank) in respect of various financing projects in Zambia.

Payment of Interest on Judgment Debts

A key aspect that has an impact on enforcement of judgments in Zambia is the fact that money judgments, like any other monetary debt, accumulate interest.

The statutory position

The payment of interest on judgments is twofold, that is, pre-judgment and post-judgment. The first accruable interest relates to the period from the date of commencement of the cause of action or date of writ to the date of delivery of judgment.

The interest payable for the pre-judgment period is prescribed in Section 4 of the Law Reform (Miscellaneous Provisions) Act Chapter 74 of the Laws of Zambia which provides as follows:

"In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided that nothing in the section-              

(i) shall authorise the giving of interest upon interest; or              

(ii) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or              

(iii) shall affect the damages recoverable for the dishonour of a bill of exchange."

In addition, Order 36 Rule 8 of the High Court Rules Chapter 27 of the Laws of Zambia states:

"Where a judgment or order is for a sum of money, interest shall be paid thereon at the average short-term deposit rate per annum prevailing from the date of the cause of action or writ as the Court or Judge may direct to the date of judgment."

The second accruable interest on judgment debts relates post-judgment debt applicable to the period from the date of delivery of the judgment to date of satisfaction of the debt.

Legislation providing for the payment of interest post-judgment is detailed in the Judgments Act Chapter 81 of the Laws of Zambia, particularly Section 2, which provides as follows:

"Every judgment, order or decree of the High Court or of a subordinate Court whereby any sum of money, or any costs, charges or expenses, is or are to be payable to any person shall carry interest as may be determined  by the court which rate shall not exceed the current lending rate as determined by the Bank of Zambia from the time of entering up such judgment, order or decree until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment, order or decree."

The common law position

The statutory position on interest payable on judgments is backed up by a plethora of case law where the Courts have held the same position with regard to how interest will be awarded to judgment debts both pre and post-judgment.

In the case of Zambian Breweries Plc v Lameck Sakala Appeal No 173 of 2009, the Supreme Court summarised the statutory positions on interest payable on judgment debts when it held as follows:

"As to the rate of interest and the effective date, the standard practice on debts, is to award interest on the sum owing, at the average short term bank deposit rate, from the date of issue of the writ of summons to the date of judgment. This is pursuant to Order 36, Rule 8 of the High Court Rules. Thereafter, up to the date of settlement, interest is awarded at the current lending rate, as determined by the Bank of Zambia. This is pursuant to section 2 of the Judgments Act Chapter 81 of the Laws of Zambia." 

The most recent case by the Supreme Court is that of Barclays Bank Zambia Plc v Patricia Leah Chatta Chipepa Selected Judgment No 16 of 2017, in which the Court reiterated the law and held:

"We have stated in a number of cases that interest shall be awarded at short term bank deposit rate from date of writ to date of judgment, thereafter at the current lending rate as determined by the Bank of Zambia from date of judgment to date of payment, unless the parties have agreed otherwise."

Effect of interest on enforcement of money judgments

With regards to enforcement of judgments, the accumulation of interest on judgment debts can have a positive effect for a judgment creditor because the longer it takes for the debt to be satisfied, the more interest it accrues, therefore, the higher the amount that becomes payable to the creditor.

For a money judgment that is enforced by way of writ of fifa, for instance, satisfaction of the debt may take well over six months, depending on the period from the seizure of goods to the actual sale of the seized goods. The sale of the seized goods is usually by public auction and it is only after the goods are sold that the proceeds are applied to satisfy the debt. The time taken between seizure and sale is not guaranteed despite the fact that enforcement by way of writ of fifa is one of the fastest ways of enforcing a money judgment.

However, the accrual of interest on a money judgment may have a negative effect for a judgment debtor who must satisfy the debt within reasonable time to avoid accrual of interest on the debt in excessive sums. Unless the parties agree to a waiver of interest on a judgment debt, a judgment debtor cannot run away from paying interest on the debt, and the longer the debtor takes to satisfy the debt, the more interest it accrues.

It is noteworthy that, according to the law, it is within the discretion of the Court to determine the rate at which interest will be calculated in the absence of an express agreement between the parties. However, the law places a limit on the discretion of the Court by requiring that any rate of interest determined must not exceed the current commercial lending rate as determined by the Bank of Zambia.

It can therefore be said that the total amount payable as interest during the enforcement of a money judgment will be highly dependent on the current lending rate. The higher the commercial lending rate, the higher the amount of interest recoverable. Currently, there has been a rise in the Bank of Zambia commercial lending rate, therefore a delay by a judgment debtor in satisfying a money judgment will attract a higher amount of interest.

Enforcement of interest on money judgment

In the same way that a money judgment can be enforced by executing any of the various forms of writs of execution, the law also allows for the recovery of interest payable on a money judgment by levying the interest under a writ of execution. This means that a judgment creditor does not have to pursue the settlement of accrued interest independent of the enforcement of the money judgment.

The accrued interest on a money judgment can be enforced at the same together with the principal judgment debt. It is not necessary to take out a writ of execution for the recovery of interest alone, separate from that of the judgment debt. The practice is that the amount recoverable as interest will usually be endorsed on the writ of execution, together with the principal debt, such that when the money judgment is enforced, the total amount recovered under the writ will include the accrued interest. 

Simeza Sangwa & Associates (SSA)

Vitumbiko Office Park, Stand 4713
Cnr United Nations/Ng’umbo Roads
Longacres
P.O. Box 36824
Lusaka, Zambia

+260 211 227574

+260 211 220568

info@simezasangwa.com www.simezasangwa.com
Author Business Card

Law and Practice

Authors



Simeza, Sangwa & Associates (SSA) is a full-service, Lusaka-based law firm with a focus on both contentious and non-contentious business. The firm is one of the largest and fastest-growing in the country, and dedicated to providing the highest levels of client service, skill and expertise to both corporate and individual clients. The SSA team consists of 14 advocates, ten legal support staff and eight administrative staff. Simeza, Sangwa & Associates is part of TagLaw and through that membership is able to offer clients more than 150 quality legal firms in over 80 countries. SSA has a large dispute resolution department with extensive experience in commercial litigation and the enforcement of judgments. SSA is external legal counsel to several commercial banks and corporate entities and acted as legal counsel to the Trade and Development Bank (formerly PTA Bank) in respect of various financing projects in Zambia.

Trends and Development

Authors



Simeza, Sangwa & Associates (SSA) is a full-service, Lusaka-based law firm with a focus on both contentious and non-contentious business. The firm is one of the largest and fastest-growing in the country, and dedicated to providing the highest levels of client service, skill and expertise to both corporate and individual clients. The SSA team consists of 14 advocates, ten legal support staff and eight administrative staff. Simeza, Sangwa & Associates is part of TagLaw and through that membership is able to offer clients more than 150 quality legal firms in over 80 countries. SSA has a large dispute resolution department with extensive experience in commercial litigation and the enforcement of judgments. SSA is external legal counsel to several commercial banks and corporate entities and acted as legal counsel to the Trade and Development Bank (formerly PTA Bank) in respect of various financing projects in Zambia.

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