Zambia v Meer Care & Ors

LORD JUSTICE LLOYD: We have before us two applications for permission to appeal on the part of the 12th defendant to proceedings brought by the Attorney General of Zambia, the appeals being from orders of Mr Justice Peter Smith dated 4th May and 29th June of this year. By the first, judgment was given against the 12th defendant for just over $1.2 million for conspiracy and dishonest assistance, and for $650,000-odd for money had and received. By the second order, the judgment was given in a single sum of $1.8 million-odd. In addition, the 12th defendant was made liable for costs which will amount to a sum considerably more than the judgment.

The 12th defendant is a tailor in Geneva who made bespoke suits for Dr Chiluba, the former president of Zambia. He was paid the sums in question from accounts which are said to have been vehicles for the fraudulent misappropriation of State funds of Zambia for the benefit of the former president.

The 12th defendant did not take any part in the proceedings, although he was no doubt properly served with them. It is said that he does not speak English. He was served with a claim form translated into French, and a response pack translated into French, but all other documents, at any rate up until the judgment, were served on him or made available to him only in English.

He applies for permission to appeal, he applies for an extension of time for appealing, and he also applies for permission to adduce additional evidence in support of the appeal. That evidence would go to explain at least two things, one being why he did not take part in the proceedings. The other would be to go at least a long way towards explaining, and eliminating, the discrepancy between the account that he gave long before the proceedings were commenced to a magistrate in Geneva as to the suits that he had supplied for the former president, which accounted for some $550,000-odd, and the total amount which has been traced as having been paid to him.

The judge found the conspiracy to be proved against other defendants, including Dr Chiluba. In the light of the 12 ^th defendant’s failure to participate in the trial, the judge found that the lack of explanation for the further half million dollars was enough to permit the inference that the 12 ^th defendant was a party to the conspiracy or, at any rate, was guilty of dishonest assistance in receiving, and presumably passing on, funds, and that was the basis of the judgment that he gave.

We have come to the conclusion that, on the face of the judgment, there is enough in the proposed appeal to justify granting permission to appeal on the basis that it is reasonably arguable that the judge ought not to have come to the conclusion that he did, even on the material that he had before him.

The question of whether the additional evidence should be admitted on the appeal is a different issue, and it seems to us that the appropriate course, preserving the position of all parties, is to adjourn that application to come on with the full appeal so that the Court can then consider the matter fully and decide whether that evidence should be admitted on the appeal, and, if so, what weight should be given to it and what implications and consequences it has.

For those reasons, in the circumstances very briefly expressed, I would grant the extension of time that is sought, and I would grant permission to appeal, but I would adjourn to the hearing of the full appeal the application to rely on additional evidence in support of the appeal. The stay of execution which I granted on paper until this hearing should continue pending the appeal.

So far as directions for the hearing are concerned, I should mention that there are, or there have been, some 15 appeals or applications for permission to appeal against the judge's orders. Five of them are before us today. On a number of them I have granted permission, on a number I have refused permission on paper, and there will be oral renewals in those cases in about a month's time.

In terms of the case management of the substantive appeals, it would be premature to give any directions now. That would be dealt with, as indicated in my paper orders, when we know quite how many, and which, appeals will be proceeding.

I can see that there will be issues as to length of time and how the appeals should be organised, but that can wait until then.

LORD JUSTICE LAWS: I agree that the orders proposed by my Lord should be made for the reasons he has given. So there will be an extension of time, permission to appeal, a stay of execution, and an adjournment of the application relating to fresh evidence.