Wednesday, June 20, 2007
By Noel Sichalwe
Wednesday June 20, 2007 [04:00]
FORMER president Frederick Chiluba has applied to set aside the London High Court judgment that has been registered in the Lusaka High Court. And Chiluba and former Access Finance Services directors Faustin Kabwe and Aaron Chungu have raised preliminary issues regarding the manner in which the judgment was served on them.
Chiluba is challenging the registration of the London judgment where he has been found liable for conspiring to defraud the Republic of Zambia in the sum of US $58,293,724 with other defendants, including Xavier Chungu US $58,112,727 and Stella Chibanda US $58,112,727.
Others were Aaron Chungu US $27,193,136, Faustin Kabwe US $53,757,867, Francis Kaunda US $100,575, Boutique Basile US $ 1,815,736 and Raphael Soriano US $29,609,582.
In his motion to set aside the registration of the foreign judgment for irregularity, Chiluba stated that he was served with an order granting leave to register the London judgment and that he was requesting to set it aside.
He contended that the registration of the London judgment should be set aside because it offended the principles of substantial justice and against public policy.
Chiluba contended among the grounds presented that there was presumption of guilty from the onset of the matter, judge Peter Smith relied on statements they gave to police on pending criminal trials and that he was denied an opportunity to defend himself.
He contended that the interference and hypothesis of guilty participation in thefts was not supported by evidence.
Chiluba stated that the judge was not detached or dispassionate as witnessed by the language used against him as former president and that the Attorney General did not discharge the burden to prove conspiracy against him.
He stated that since matters started in 2002, he has been investigated by the Serious Fraud Office of the United Kingdom (UK), Federal Bureau of Investigations (FBI) of the United States including another security firm, Ovag of the UK.
Chiluba noted that none of the security firms have made any finding that millions of dollars were stashed in foreign banks or assets anywhere else in the world other than the assets declared in Zambia that he acquired before he became President.
He noted that the assertion that the action needed to be heard in London to help the Attorney General trace and recover assets purchased from plundered money worldwide was a mere façade to perpetuate an action whose outcome was predetermined.
"It has always been our position that the cause of action in the civil proceedings in England which resulted in the judgment which has now been registered herein arose in Zambia as it is alleged that between December 1995 and July 2001 the sum of atleast US $42,890,691 was transferred from the Bank of Zambia to the Zamtrop account in London and that it is from Zamtrop account that we are alleged to have misappropriated the said government funds," he stated.
Chiluba noted that only the Zambian courts could hear the alleged claims against him especially that all the claims determined in London arose from Zambia.
He argued that the High Court for Zambia had unlimited and original jurisdiction to hear and determine any civil or criminal proceedings under any law and was the most competent and proper forum to take the claims against him.
"The judgment creditor deliberately decided to institute civil proceedings in a foreign jurisdiction in London in order to circumvent what is obviously a duplicity of action against us and further to mask the obvious violation of Article 18 of the Constitution of Zambia," he argued.
Chiluba stated that the judgment had now pointed to the assets, which were disclosed in the civil proceedings in London and judge Peter Smith has now issued a freezing order against the assets that he acquired between 1980/1990 before he became president.
Chiluba noted that he refused to accept service of the process in the London High Court and did not recognise the English court's jurisdiction and authority over him.
He contended that it appeared that the Attorney General deliberately chose London specifically to make it impossible for him not to participate and effectively defend himself.
"The Attorney General sought some forum that favoured him and ensure that his desired outcome was achieved. This course or action has only served to deny justice to the Zambian defendants as the environment under which the civil proceedings were pursued in England was pregnant with political intrigue and underhand manoeuvers to deny us justice," he stated. "The civil actions brought against us are clearly political and not legal. The London action was crafted and motivated by two leaders, President Mwanawasa and British Prime Minister Tony Blair in order to establish a strong political statement."
He stated that his criminal trial in Zambia was seriously undermined and prejudiced and that the trial court has been put under undue pressure not to make findings contrary to those of the English Court.
He said his right to the protection of the law has been violated and it appeared that institutions meant to protect him have failed do so.
Chiluba stated he had earlier unsuccessfully challenged the world freezing order by judge Smith and that the appeal to the Court of Appeal was also unsuccessful.
He noted that since he did not want to derail the process, he was induced into submission and therefore, provided a skeleton defence under protest.
Chiluba stated that judge Smith appeared careless about his rights to a fair trial and was un-persuadable leaning heavily in favour of the presumption of guilt even before he received evidence from witnesses.
Chiluba stated that judge Smith noted inadequacies in some key witnesses who he trashed and discredited but nevertheless made a finding of conspiracy with no supporting evidence.
He noted that judge Smith made findings contrary to the Supreme Court in the last presidential petition that established that the Zamtrop account contained private monies from third parties and his money.
Chiluba stated that even the PriceWaterHouseCoopers and Grant Thornton UNK audits on the Zamtrop account also established that the Zamtrop account money was co-mingled with funds from private sources.
"There was clear bias exhibited by judge Smith in his judgment as evidenced by his unethical language against me," he stated. "Thus the judge seemed to have jumped into the arena reserved for litigants and invited the Attorney General herein to expand his claims beyond what he had pleaded. The judge was foisting enlarged claims against me."
"Even after he had delivered his final judgment, the judge took it upon himself to invite the Attorney General through his legal representatives in London to make an application concerning the house I live in which I am informed he has ordered forfeiture to the state without affording the legal owners of the property, Riverside Properties Limited who were now parties to the action, any hearing. The judge totally disregarded the fact that the said property is infact already a subject of legal proceedings before the High Court for Zambia. In fact this decision is highly prejudicial and renders the suit in Zambia nugatory."
Chiluba stated that judge Smith ignored that there was another action regarding his house before High Court judge Marvin Mwanamwambwa saying it was of no effect.
Chiluba further stated that in 2002, President Mwanawasa initiated proceedings in the National Assembly to strip him of his legal immunity for purposes of criminal prosecution pursuant to Article 43 of the Constitution.
He stated that this was followed the National Assembly resolution to remove his immunity and be charged with offences in respect with acts done or omitted to be done in his personal capacity while he was Republican president.
Chiluba noted that contrary to the rules of natural justice, he was not accorded an opportunity to be heard by the National Assembly before his immunity was removed.
"Although the reasons for the removal of my legal immunity by the National Assembly was not facilitated by investigations and subsequent prosecution for offences which were alleged to have been committed by me while I held office as Republican President, most of the charges raised by President Levy Mwanawasa in Parliament have either been abandoned or modified and completely new charges have now been brought against me which were never brought before Parliament," he contended.
Chiluba argued that in 2002, President Mwanawasa set up a Task Force on corruption that started operating in July the same year and recruited individuals and private lawyers including the first chairman Mark Chona.
He noted that the Task Force began investigating transactions of funds that were routed to the Zamtrop account number 58C/40/070185/01 held at the London branch of Zambia National Commercial Bank (ZNCB).
Chiluba stated that it was later established that about US $43 million was remitted to the Zamtrop account in London from Ministry of Finance and that another sum of US $9 million was remitted to Zamtrop account from various private sources not connected to the government.
He noted that the London intelligence account had existed since 1963 although under different names until in 1995 when it was renamed Zamtrop.
He said this was an operations account for ZSIS and was regulated by the 1970 Financial Charter and operated under the provisions of ZSIS Act number 14 of 1998.
Chiluba contended that the London High Court was therefore, incompetent to determine transactions on an operational account of the Zambia Security Intelligence.
He stated that in 2002, the Task Force commissioned Bank of Zambia senior inspector in the non-bank financial institutions supervision department Maulu Hamunjele who conducted forensic audit and financial analysis of the Zamtrop account and prepared a report.
Chiluba stated that Hamunjele's report contained his opinions on the movement of funds from Ministry of Finance to Zamtrop account in London to their final destinations and rendered his opinion whether the funds were not expended or applied towards the purposes for which they were appropriated.
He noted that following the report, the Task Force decided to level criminal charges against various individuals who were named in Hamunjele's report.
Chiluba stated that in February 2003, he was formally arrested and charged with several counts of theft by public servant but that the charges had no semblance to the allegations President Mwanawasa raised against him when he addressed Parliament in 2002.
And defence lawyers Simeza Sangwa and Associates have argued that the registration of the London judgment contravened the reciprocal enforcement Act, Chapter 76 of the Laws of Zambia.
He stated that the London High Court of Justice had no jurisdiction over Chiluba, Kabwe and Chungu in the circumstances of the case.
"The said judgment was obtained by fraud," they contended. "The main issue which formed the basis of the judgment, which has been registered by the court, was adjudicated upon by the Supreme Court of Zambia in Anderson Kambela Mazoka and two others versus Levy Patrick Mwanawasa and two others."
The lawyers contended that the enforcement of the judgment would be contrary to public policy in Zambia because the Zambian based defendants were denied a fair trial by the London High Court resulting in judgment being obtained without them being heard.
He noted that the proceedings in which judgment was obtained were contrary to the principles of natural justice.
The lawyers stated that as regards Chiluba, the London High Court violated the provisions of Article 33(2) which conferred the executive power of the Republic of Zambia in the President.
The lawyers also contended that as regards the trio, the London High Court violated Article 108 of the Constitution and several provisions of the Zambia Security Intelligence Service Act and the Finance Charter.
They argued that the enforcement of the judgment was contrary to public policy in Zambia because of the decision to commence civil proceedings in London, the prosecution of the case and the registration of the judgment in violation of the right to a fair trial guaranteed to the trio facing various criminal charges arising from the same facts.
Judge Banda is expected to hear the preliminary application on June 27.